Benton v State of Queensland (Department of Education) [2022] QIRC 232

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Benton v State of Queensland (Department of Education) [2022] QIRC 232 PARTIES: Benton, Jarred Paul (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/396 PROCEEDING: Public Service Appeal – Transfer Decision DELIVERED ON: 20 June 2022 MEMBER: Knight IC HEARD AT: On the papers ORDER: The decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a transfer decision – where appellant required to transfer – where request made for review of transfer – where review confirmed transfer – whether decision fair and reasonable – decision confirmed LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) ss 133, 134, 197 Teacher Transfer Guidelines (Department of Education, 2021) cl 8, 10, 11.1, 11.2 16.2 CASES: Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision [1] Mr Jarred Benton is employed by the State of Queensland as a Teacher through the Department of Education ('the Department'). On 16 September 2021, the Department notified Mr Benton that he was to be transferred from his current school to Coomera Springs State School, effective 20 January 2022. -- 1 of 9 -- 2 [2] On 19 October 2021, Mr Benton requested an internal review of the transfer pursuant to cl 16.2 of the Department's Teacher Transfer Guidelines ('the Guidelines'). A review was undertaken by the Teacher Transfer Review Panel ('the Panel') later that month. [3] In a decision letter dated 4 November 2021, Ms Kirsty Payne, Director Human Resources Business Partnering, South East Region, informed Mr Benton that she had accepted the recommendation of the Panel to dismiss Mr Benton's request ('the Decision'). [4] Mr Benton appeals the Decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').1 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.2 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.3 [5] Both parties submitted written submissions in accordance with Directions 1 and 2 of the relevant order. Mr Benton did not file submissions in reply, notwithstanding the opportunity to do so.4 [6] In my view, the decision was fair and reasonable. [7] My reasons follow. The Decision Letter [8] Included with the Decision was a document setting out the materials considered by the Panel and the reasons for the decision. After setting out a summary of the matters raised by Mr Benton in his request, the reasons provided: This information was considered and it has been determined by the review panel as insufficient to demonstrate that the required transfer decision is unfair or unreasonable or likely to adversely affect [Mr Benton], for the following reasons: • [Mr Benton's] service and dedication to the students of Elanora State School is acknowledged however transfers are undertaken following the Departmental policy, procedures and guidelines. • The Teacher Transfer Guidelines state teachers permanently employed by the department may be required to teach at any location in the state. The department may require a teacher to transfer in circumstances including to create a vacancy in a geographic area for a teacher with a high number of transfer points who is requesting a transfer to that location. • As outlined in the Conditions of Employment, permanent teachers may be required to teach anywhere in the state and should also expect, as part of their teaching career, that they may be required to teach in locations not necessarily of their choice as all teachers are likely to be required to transfer at some stage. This requirement applies irrespective of whether they 1 Public Service Act 2008 (Qld) s 197. 2 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 3 Industrial Relations Act 2016 (Qld) s 562B(3). 4 See Direction 3 of the Directions Order issued 18 November 2021. -- 2 of 9 -- 3 expressed restricted initial appointment location preferences on their application for teacher employment. • Teachers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur. Reasonable grounds are established through the same criteria as compassionate transfers [sic] requests. • Compassionate requests are classified as either exceptional hardship or personal pressing circumstances. Supporting specialist medical evidence is essential for requests on exceptional hardship or personal pressing circumstances grounds ... and medical evidence from a general practitioner is not considered sufficient. • Although [Mr Benton] has provided supporting specialist information, a transfer, whether requested, compassionate or required, to a designated base location of up to 50 minutes drive time from a teacher's place of residence is considered reasonable. Coomera Springs State School is within 50 minutes of [Mr Benton's] place of residence. • The department does advocate for employee wellbeing and every school has wellbeing initiatives to support staff. • While empathetic to his family situation and responsibilities, I believe that the circumstances outlined by [Mr Benton] are not sufficient to support his appeal, and that the proposed transfer is consistent with the provisions of the Teacher Transfer Guidelines.5 [9] The reasons also noted that, in reaching its decision, the Panel had considered the following documents: Mr Benton's Teacher Transfer Request for Review – Required Transfer; the 2022 Teacher Transfer Application; the Guidelines; the Transfer Rating Guidelines; and the documentation supplied in support of Mr Benton's request for review. Grounds of Appeal [10] Within his appeal notice, Mr Benton clarifies that he is not appealing the decision that he be transferred. Instead, he argues he is appealing the location and distance of the transfer as he is the primary carer of his children.6 He then sets out his grounds of appeal as follows: Mr Benton's wife has been required to travel for her role for the past 14 years which has caused her debilitating anguish due to the age of their children, and adversely affected her mental wellbeing and their family life; as the primary carer for his children, Mr Benton needs to be available for school drop off and pick up, as well as to conduct his children to afterschool co-curricular activities; the impact of the required transfer on his children will be exponential in that they may not be able to participate in after school activities; 5 Emphasis in original; Decision letter attached to appeal notice filed 18 November 2021. 6 Appeal notice filed 18 November 2021, Part C. -- 3 of 9 -- 4 Mr Benton's children have previously been placed in before and after school care which has impacted on their quality of life, and the cost of before and after school care is $12,000 a year; due to the finishing time of the proposed transfer school, Mr Benton will find it difficult to maintain his position as the coach of his son's rugby team; and Mr Benton suffers from two medical conditions which make it distressing, and otherwise difficult, for him to sit in his car for prolonged periods of time. Relevant Principles [11] The PS Act relevantly provides: Part 3 Transfers and redeployment 133 Chief executive's power to transfer or redeploy (1) The chief executive of a department may transfer or redeploy a public service officer of the department within the department. ... (4) The transfer or redeployment of a public service officer under this section— (a) may involve a change in the location where the officer performs duties; and (b) if the officer is employed on contract—has effect despite anything in the contract. 134 Consequence if transfer refused (1) If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer's chief executive.7 (2) If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive's satisfaction, the chief executive may terminate the officer's employment by signed notice given to the officer. (3) If the officer establishes reasonable grounds to the chief executive's satisfaction— (a) the transfer is cancelled; and (b) the refusal must not be used to prejudice the officer's prospects for future promotion or advancement. [12] The Guidelines relevantly provide: 8. Reasonable travel time A transfer (requested, compassionate or required) to a designated base location of up to 50 minutes driving time from a teacher's place of residence is considered reasonable. Time is calculated according to the nearest trafficable route, but should take into account factors such as road and traffic conditions. Electronic trip planners such as www.googlemaps.com.au or www.mydrive.tomtom.com may be used as a guide to determine approximate driving time. ... 10. Required transfers Teachers employed by the department may be required to teach at any location in the state. The department may require a teacher to transfer in the following circumstances: 7 My emphasis. -- 4 of 9 -- 5 • to meet the staffing needs of schools throughout the state • to create a vacancy in a geographic area for a teacher with a high number of transfer points who is requesting a transfer to that location • to provide a teacher with a range of teaching experiences and professional development opportunities • when it is considered unreasonable for a particular teacher to serve longer in a particular location. When considering the possibility of a required transfer, senior human resource consultants will: • ensure that the proposed transfer is reasonable • consider the teacher's full employment history with the department, including but not limited to service in rural and remote locations.8 There is no mandatory maximum period of service at one particular location. Techers are expected to comply with a departmentally required transfer unless they can establish that reasonable grounds exist for the transfer not to occur. Objections may be made in accordance with section 134 of the Public Service Act 2008. ... Parties' Submissions [13] As the pertinent parts of the parties' submissions are relatively brief, it is convenient to set them out in full (albeit redacted in parts for privacy reasons). [14] Mr Benton submits:9 Before I begin I would like to state for the record that I am not appealing my transfer, I am appealing the location (distance) of my transfer. Impact on my family: • From 2009 till 2014, [Mr Benton's partner] was travelling to her Queensland Dept [sic] of Education appointed position at Eden's Landing State School in Beenleigh. • In 2014 she was transferred to Coomera Rivers SS where she is still teaching. • Due to [Mr Benton's partner] driving North during such an important time in our children's early development, my wife has experienced debilitating anguish. This has had a major impact on her mental well-being and our family life. The only constant was the fact I could be nearby if needed. My children have already spent years in before and after school programs which has impacted on their quality of life. • As [Mr Benton's partner] is teaching at Coomera Rivers SS, up until now I have been the primary carer for our children. We have no other family members to support us. • We moved our son ... to [another school] at the start of 2021 as he was not coping socially and emotionally at his previous school. Since his move to [the new school] he has been much happier. To make our drop offs and pickups more manageable we are sending our daughter ... to [the same school]... Due to me being the primary carer I need to be available. • The impact of this required transfer on our children's daily lives is exponential. My daughter is part of [a dance team]. She needs to attend lessons twice during the week. Due to staff meetings at CRSS and CSSS both being on the same day we will not be able to get her to at least one lesson. My son is a valued member of his ... Rugby Union team and I 8 My emphasis. 9 Mr Benton's submissions filed 22 November 2021. -- 5 of 9 -- 6 am also the coach. He plays cricket ... in the summer. Due to the finishing time at Coomera Springs State School and the heavy volume of traffic ... around the local schools it will be very difficult to get them to these extra-curricular activities on time. I value my contribution to the local community and would be very disappointed if I am unable to keep this commitment. • Due to us both having to travel away from our home and the children's school we will be forced into before and after school care. The costs of before school and after school care each day is extremely high. Around $12 000 per year. Medical Issues: • This decision has compounded my wife's already fragile mental state due to the amount of time she has been working away from our family. It has a major impact on the mental well- being of each member of my family. • I suffered from [medical conditions]. I need to use the toilet more often. Spending long amounts of time in my vehicle without the ability to access a toilet is very distressing. • I have [a medical condition] in my knee. This makes it difficult to sit for prolonged periods of time. I strongly believe the extra time is going to impact heavily on my quality of life. The [medical condition] also impacts my ability to walk freely when aggravated. [15] After setting out a brief background to the appeal, the Department submits:10 Required transfers must be reasonable pursuant to clause 10 of the Guidelines 5. Clause 10 of the Guidelines requires the Respondent to ensure that a required transfer is reasonable ... Meaning of reasonable travel time provided at clause 8 of the Guidelines 6. Clause 8 of the Guidelines defines reasonable travel time to ensure a fair and consistent application of the phrase in respect of transfers enacted under the Guidelines ... Travel time information relevant to this appeal 7. The following driving times are calculated using www.googlemaps.com.au and indicate: a. 12 to 16 minutes is the typical travel time between [Mr Benton's] place of residence ... and [Mr Benton's] pre-transfer work location, Elenora [sic] State School. b. 24 minutes is the typical travel time between [Mr Benton's] place of residence ... and [Mr Benton's] post-transfer work location, Coomera Springs State School. 8. The typical travel time between [Mr Benton's] place of residence ... and [Mr Benton's] post- transfer work location, is some 26 minutes short of the 50 minutes travel time considered to be reasonable under clause 8 of the Guidelines. Disposition of the Respondent 9. Coomera Springs State School is within a reasonable travel time from [Mr Benton's] place of residence and so the decision on appeal was fair and reasonable because it complied with the Guidelines. 10. The Guidelines are fair and reasonable because they strike a satisfactory balance between required transfers, requested transfers, compassionate transfers and school staffing requirements. 11. The decision on appeal should be confirmed pursuant to section 562(c)(1)(a) [sic] of the Industrial Relations Act 2016 because it was fair and reasonable. 10 The Department's submissions filed 16 December 2021. -- 6 of 9 -- 7 What Decisions can an Industrial Commissioner make? [16] In deciding this appeal, s 562C(1) of the IR Act provides that I may: confirm the decision appealed against; or set the decision aside and substitute another decision; or set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate. Was the Decision Fair and Reasonable? [17] I have determined the Decision was fair and reasonable. [18] In making my decision I have considered, firstly, whether the Department complied with the requirements under the Guidelines in requiring Mr Benton to transfer schools; and secondly, whether Mr Benton has established reasonable grounds for refusing the transfer to the satisfaction of the Department. Compliance with the Guidelines [19] It is not in dispute that, where the Department has complied with the requirements under cl 10 of the Guidelines, it has the power to require Mr Benton to transfer to another school location. Relevantly, under cl 10 of the Guidelines, the Department was required to: ensure the proposed transfer was reasonable; and consider Mr Benton's full employment history with the Department. [20] Clause 8 makes it clear that a transfer is considered reasonable if the designated transfer location is within 50 minutes driving time from the teacher's place of residence. [21] The Department submits the typical travel time between Mr Benton's place of residence and the proposed transfer school is 24 minutes, well within the 50 minute constraint imposed by the Guidelines. The Department also contends the travel time between Mr Benton's place of residence and his pre-transfer location is approximately 12 to 16 minutes. [22] These calculations were not challenged by Mr Benton. [23] Although the Department made no submissions with respect to having considered Mr Benton's full employment history, this is not one of the points on which Mr Benton has complained or based his appeal. Consequently, I consider this requirement has little bearing on my consideration. [24] In the absence of any evidence, or even submissions, to the effect that the decision-maker has erred in applying the Guidelines, I am not persuaded the Decision was not fair or -- 7 of 9 -- 8 reasonable in this respect. I am therefore satisfied the Department has complied with the Guidelines and properly required Mr Benton to transfer his base location. Reasonable Grounds for Refusing the Transfer [25] Notwithstanding the above, s 134 of the PS Act makes it clear a transfer has effect unless the public service officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer's chief executive. Where those grounds are established, the transfer is cancelled and the refusal cannot be used to prejudice the officer in their employment.11 [26] The question for my consideration, is therefore whether Mr Benton established reasonable grounds, to the Department's satisfaction, such that the transfer ought to have been cancelled. [27] It is clear from his submissions that Mr Benton's primary concern is his desire to maintain his current school drop off and pick up routine, having regard to the needs of his children and to ensure both he and his children can arrive at after-school activities on time. [28] He argues the timing of staff meetings in his post-transfer work location and that of his wife could result in his daughter not being able to attend one of her regular dance lessons. Details of the day, time and length of those meetings in combination with the timing of his daughter's dance lessons have not been included within his submissions. Mr Benton further relies on both his and his son's involvement in a local rugby team in support of his appeal, noting he would be quite disappointed if he was unable to maintain his commitment as the team's coach. Again, details in respect of the duration, timing and location of after-school training have not been included in Mr Benton's submissions. [29] Mr Benton also relies on medical factors in support of his appeal. He maintains that spending long periods in his car can be challenging because of his medical conditions. He has also raised concerns about the mental well-being of his family members. [30] Unfortunately, Mr Benton has not provided the Commission with any supporting medical evidence such as a medical certificate or a specialist report that details how the additional 8 to 12 minutes of driving time at his post-transfer location will exacerbate his existing medical conditions. [31] When determining whether reasonable grounds exist for a transfer not to occur, the Panel is required to consider the same criteria as compassionate transfer requests. Compassionate requests are classified as either exceptional hardship or personal pressing circumstances. 11 Public Service Act 2008 (Qld) s 134(3). -- 8 of 9 -- 9 [32] Clauses 11.1 and 11.2 of the Guidelines deal with what might be considered exceptional hardship or pressing personal circumstances. Exceptional hardship includes serious medical circumstances and/or disabilities of a teacher and/or a member of their immediate family. Pressing personal circumstances extend to events such a separation from a partner, lengthy travel arrangements arising from a departmental transfer over an extended period or medical conditions that do not meet the definition of exceptional hardship. [33] Although I have some sympathy for Mr Benton and commend him for his intentions in so far as they concern his commitment to his children and their extra-curricular activities, the lack of detail or supporting materials within his submissions in respect of the timing and duration of those activities, in combination with an absence of medical evidence, has not assisted his appeal. [34] Accordingly, on the materials before the Commission, I have not been persuaded Mr Benton's circumstances could be characterised as either exceptional hardship or pressing personal circumstances as they are represented within the Guidelines. Conclusion [35] For the reasons given above, I have determined the Decision was fair and reasonable in all the circumstances.12 [36] I order accordingly. Order The decision appealed against is confirmed. 12 Industrial Relations Act 2016 (Qld) s 562B(3). -- 9 of 9 --