Cunningham v State of Queensland (Queensland Health) [2022] QIRC 161

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cunningham v State of Queensland (Queensland Health) [2022] QIRC 161 PARTIES: Cunningham, Duncan (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2021/392 PROCEEDING: Public Service Appeal – Promotion decision DELIVERED ON: 16 May 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] Mr Duncan Cunningham ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an OO3, Fire Safety and Security Officer within Security Services, West Moreton Hospital and Health Service ('WMHHS'). [2] The Appellant applied for the position of OO4, Security Shift Supervisor, was shortlisted for interview, however, was unsuccessful in obtaining the position. [3] By appeal notice filed on 16 November 2021, the Appellant appeals the promotion decision of the Respondent, pursuant to ch 7 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. 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 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 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: (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 -- 3 of 11 -- 4 (iv) for an appeal against a promotion from a limited advertising process conducted in accordance with the directive relating to recruitment [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 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. 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 [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) the Appellant was informed during the post selection feedback that the application and resume was not scored as part of the overall assessment, inferring that 'the application got you the interview and the interview for you the job'. The Appellant was not informed of such; and (b) the interview questions can not be adequately assessed against the selection criteria and were inappropriate to be used in such a process. [20] The interview questions as referred in the appeal notice were as follow: (a) How do you determine if a task or project is at risk? (b) What do you do if there's a disagreement within your team? (c) Describe your leadership style? (d) What is your greatest strength and weakness in leading and mentoring? Appellant's Submission [21] In his submissions, the Appellant outlines his work history and tasks undertaken as a Fire Safety and Security Officer and lists a number of further qualifications completed by the Appellant in furthering his career. The Appellant submits that the interview process for the Security Shift Supervisor positions were carried out in an 'insufficient' manner. [22] The Appellant further submits that: (a) the Appellant was informed after the interview process that his experience, acquired local knowledge and qualifications were not merited for consideration. The Appellant submits that this action alone contradicts cl 9 of the Recruitment and Selection Policy B1 (QH-POL-212) ('Recruitment and Selection Policy') and is further supported by cl 1.3 of attachment one of the Recruitment and Selection Policy; (b) the Appellant was informed that consideration of the position was based solely on the four questions given in the interview; (c) the questions asked were inappropriate and did not reflect the relevant information WMHHS was looking for in the role; -- 5 of 11 -- 6 (d) the work carried out in the newly formed role is the exact work the Appellant has undertaken for the last 18 years and the Appellant continues to carry out the same role; (e) the questions did not allow scope for the Appellant to answer in a leadership capacity and adapted only relevant experiences from the role of a Fire Safety and Security Officer; and (f) the Appellant expects a line of questioning that is pertinent to fulfilling a criteria reflective of a specialised health care setting and relevant to the advertised role description. Respondent's submissions [23] The Respondent, in its submissions, maintains that a fair and reasonable recruitment process was undertaken which meets all requirements of Recruitment and Selection Policy, the Recruitment and Selection Directive and all corresponding requirements in the PS Act. [24] The Respondent identified in the Appellant's submissions two key components to the appeal with respect to the recruitment process, being: (a) the merit principle; and (b) whether the interview questions were reasonable for the role. Merit principle [25] The Respondent submits that it is not evident where the Appellant believes the merit principle has not been successfully met by the panel throughout the recruitment process. The Respondent submits that the Respondent's recruitment process meets the merit principles and that consideration of the Appellant's full application, including resume and interview, had been taken into account. In support, the Respondent submits that: (a) of the 36 applications received, 20 candidates were shortlisted based on their individual cover letter and resume. The candidates were chosen due to their professional experience of security services, relevant qualification, and technical knowledge and skills, which is a recognised and trusted method of assessing candidates against the requirements of the role, meeting the 'requirements of the role' component of the merit principle; and (b) the interview process of the 20 shortlisted candidates utilised the same four questions. Given the panel had already assessed the candidates through their resume and cover letter compared to the skill sets required for the role, the panel took a behavioural and situational assessment approach for the interviews to elicit the requirements of the role that are not easily evident through a written application and provide the candidate the opportunity to demonstrate their 'organisational fit'. -- 6 of 11 -- 7 [26] Although the Respondent concedes the wording of the Panel Chair during the feedback with the Appellant may have led the Appellant to believe that his application, experience and qualifications were not taken into consideration, the Respondent relies on the selection report which indicates a clear difference in the abilities, aptitude, skills, knowledge and experience between the Appellant and the successful candidates. [27] The Respondent refers to the selection report, highlighting that: (a) it was evident that not all candidates interviewed were determined meritorious for the role which included a candidate who had previously been working in the same or similar role; (b) the Appellant is not as experienced as the successful candidates whereby those candidates all had previous experience at a supervisor or higher level; and (c) of the candidates without previous supervisor experience, the Appellant was unable to meet their standard in that he 'struggled to articulate his answers' and 'was prompted by the panel for more information'. Interview questions [28] The Respondent submits that the questions asked of each candidate are directly relevant to success in the role and to the elements of the West Moreton Health Leadership Standards Leader of Others which was included as additional information in the advertisement along with the role description accessible to all applicants. The Respondent submits that WMHHS emphasises at every opportunity the importance of these leadership standards and would be remiss of WMHHS and of the Panel not to ask leadership related questions in an interview for a supervisor role, which is required to lead a team. [29] The Respondent outlined the direct correlation of each question asked to the 'About You' section of the role description under the following table: Question "About You" How do you determine if a task or project is at risk? Ability to identify, analyse, exercise sound judgement and resolve operational issues. What do you do if there’s a disagreement within your team? Ability to supervise a security services team within a healthcare or similar organisation with respect to legislative and procedural requirements, and coordinate staff and procedures in emergency situations. Describe your leadership style? Advanced interpersonal and communication skills, with the ability to effectively liaise with a diverse range of people. What is your greatest strength and weakness in leading and mentoring? Ability to work effectively both autonomously and in a team environment; and Ability to supervise a security services team within a healthcare or similar organisation with respect to legislative and procedural requirements, and coordinate staff and procedures in emergency situations. -- 7 of 11 -- 8 Appellant's submissions in reply [30] The Appellant, in his submissions in reply, confirms that the Respondent has correctly identified the Appellant's grounds of appeal and further submits that: (a) the questions posed were unreasonable as they did not support an appropriate impartial assessment of shortlisted applicants. Further, the questions were not approved by human resources in compliance with the Recruitment and Selection Policy, the Recruitment and Selection Directive and the PS Act; (b) the entirety of the selection process, including interviews must continue to meet the merit principle as opposed to the pre-interview selection process as submitted by the Respondent; (c) the screening process regarding bias has not been effective and attempts to ensure that it had were insufficient or ignored; (d) the Respondent's attempt to elicit the requirements of the role by adopting, what has not been unsubstantiated by WMHHS, a human resource unapproved line of questioning is not easily evident and could result in unconscious bias towards applicants who can talk the best and not perform the role the best; (e) the interview questions were not fair, qualifiable and effective questions relating specifically to the role; (f) having carried out the same role as some of the successful candidates for the last 19 years without the position formalised, the Respondent appears to be 'attempting to chicane the reader by vilifying [the Appellant] the same abilities afforded meritorious for successful applicants'; (g) the Respondent's concession regarding the Appellant's feedback is a 'clear and desperate attempt to minimise the facts highlighting the ineptitude of WMHHS recruitment processes'; (h) the Respondent's attempt to unify the interview questions to the 'About You' section of the role description is a 'low base' for an argument given the Panel Chair confided the questions were sourced from the internet; and (i) the interview process was inappropriate and inadvertently biased against the Appellant. Consideration [31] The determination of this appeal requires an assessment of whether the recruitment and selection process were 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. -- 8 of 11 -- 9 [32] The Appellant's grounds of appeal are twofold: (a) that during the post selection feedback he was informed that the application and resume was not scored as part of the overall assessment; and (b) the interview questions cannot be adequately assessed against the selection criteria and were inappropriate. [33] With respect to the first ground of appeal, the Respondent concedes the wording of the Panel Chair feedback may have led the Appellant to believe that his application, experience and qualifications were not taken into consideration. The Respondent submits that it relies on the selection report which indicates a clear difference in the abilities, aptitude, skills, knowledge and experience between the Appellant and the successful candidates. [34] The process through which the Respondent shortlisted the number of applications from 36 to 20 involved an assessment of professional experience, relevant qualifications and technical knowledge and skills. The Appellant's experience and qualifications were considered through this process and as a consequence, the Appellant was successful in having his application shortlisted. [35] The interview process allows applicants to further demonstrate their experience and qualifications through their answers to interview questions. It does not appear that the applicants' performance in the interview was given primacy over the applicants' experience and qualifications. The questions were worded in a sufficiently broad manner to allow the applicants to further highlight relevant aspects of their skills, knowledge, experience and qualifications in the answers provided. An interview provides an opportunity for an applicant to speak to the material outlined in their resume and covering letter as well as demonstrate their broader suitability for the role. It is, in many ways, an artificial distinction to suggest that it is possible to 'only' consider interview performance when the answers given by successful applicant's will often refer to the applicant's experience and qualifications as outlined in their application. The selection report demonstrates that the selection was based upon the overall merit of each candidate and not simply the interview. [36] The Appellant's second ground of appeal was that the interview questions were inappropriate and could not adequately address the selection criteria. The Appellant states that the questions did not allow scope for him to provide an answer referring to his security experience in leadership capacity. The Appellant submits: I adapted only relevant experiences from the role of a Fire Safety and Security Officer, I neglected to incorporate my personal experience in running a production company, having written and directed and produced a full-length feature film, published numerous graphic novels and motion comics because I based my preparedness in the interview for questions which echoed the advertised role description. [37] The Respondent outlined in the table at [29] the correlation between each question and the selection criteria. Each of the 'About You' abilities and skills could be assessed through a broad range of questions, and the questions that were asked could reasonably be considered as falling within such a range. -- 9 of 11 -- 10 [38] It is often the case that applicants regret not providing additional information in an interview or find that the questions are slightly different to those that an applicant had expected. This does not render the questions inappropriate or unreasonable. The Appellant provided a sample 'line of questioning' that he believed provided a better criteria reflective of the role description. Every applicant will have their own view as to the most appropriate questions, however it is a matter for the selection panel to determine the questions which best allow them to assess each applicant's merit. The Appellant takes particular umbrage with the question 'What do you do if there is a disagreement within your team?' and its correlation with legislative and procedural requirements and procedures in emergency situations. This question is both appropriate and reasonable in assessing the part of the role description which provides that the successful candidate must have the ability to 'supervise a security services team within a healthcare of similar organisation with respect to legislative and procedural requirements, and coordinate staff and procedures in emergency situations'. This question allowed the selection panel to assess how applicants would manage team disagreements within the parameters of statutory requirements and in the context of coordinating staff in emergency situations. This question was not unreasonable and allowed applicants to demonstrate both suitability for the role and organisational fit. [39] The interview questions related to the abilities and skills required for the role and allowed the applicants to demonstrate their suitability through their answers. I am satisfied that the questions asked in the interview were appropriate and reasonable. [40] The Appellant submits that the process was not approved by Human Resources and consequently contravened the Recruitment and Selection Directive. The Appellant did not further particularise this submission and the basis upon which it was made is unclear. [41] The Appellant submits that 'the screening process regarding bias has not been effective and attempts to ensure that it had were insufficient or ignored'. The Appellant also submits that the interview process 'could be unconscious bias towards applicants who can talk the best and not perform the role the best'. It appears that the Appellant is of the view that the selection panel held an unconscious bias towards those applicants who performed well in the interview. The criteria by which merit is determined includes 'the extent to which the person has the abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question'.11 In order to assess each applicant against these criteria, it is necessary to give weight to the ability of each applicant to demonstrate their merit through all aspects of the application process. This includes both the written component of the application and the interview. It is not unconscious bias to determine that some applicants were better able to demonstrate their merit in an interview than others. The role description states that the role involves direct supervision of four to eight FTE and the ideal person will be someone who can demonstrate, inter alia, 'advanced interpersonal and communication skills'. These criteria require demonstration of communication skills, and it was entirely reasonable that weight was given to the ability of applicants to communicate their answers in the interview. [42] The selection report outlined an assessment of each shortlisted applicant as compared with other applicants. This assessment makes it clear the basis upon which the successful 11 PS Act s 28. -- 10 of 11 -- 11 candidates were able to demonstrate merit to be appointed to the role. The selection process was consistent with the requirements of the Recruitment and Selection Directive and the merit principle pursuant to s 27 of the PS Act. There is no evidence that the process was deficient or not fair and reasonable. Conclusion [43] After consideration of the material before the Commission, I find that the process of recruitment and selection was conducted in accordance with the Recruitment and Selection Directive and the PS Act. [44] As no deficiency in the process was identified, I am satisfied that the process was fair and reasonable. Order [45] 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 --