Black v State of Queensland (Department of Environment and Science) [2022] QIRC 143

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Black v State of Queensland (Department of Environment and Science) [2022] QIRC 143 PARTIES: Black, Robert James (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) CASE NO: PSA/2022/371 PROCEEDING: Public Service Appeal – appeal against a promotion decision DELIVERED ON: 20 April 2022 MEMBER: HEARD AT: Hartigan IC On the papers ORDERS: 1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the decision the subject of the appeal is set aside. 2. I direct that: (a) the matter be returned to the decision maker with a copy of the decision on appeal; (b) within one month of receiving the decision on appeal, the Chief Executive of the Department is to revoke the appointment to the position of Principal Investigator AO7 position number 762642 published in the Queensland -- 1 of 6 -- 2 Government Gazette on 18 February 2022 and publish a gazette notice that the appointment is revoked; (c) the Department is to form a new selection panel for the purposes of conducting a fresh recruitment process for the position of Principal Investigator AO7 position number 762642; and (d) the new selection panel be provided with a copy of ss 27 and 28 of the Public Service Act 2008 (Qld) and the Recruitment and Selection Directive (Directive 12/20). CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a promotion decision – where appellant applied for internally advertised position – where appellant was unsuccessful for the position – where appellant submits promotion was not fair and reasonable – where appellant submits panel acted in contravention of s 28 of the Public Service Act 2008 (Qld) and cl 7 of the Recruitment and Selection Directive (Directive 12/20) – where appellant submits panel chair and one panel member did not adequately disclose a conflict of interest – where respondent accepts that there are deficiencies in the recruitment process – where respondent does not contest matter and supports the outcome sought by the appellant – where decision not fair and reasonable – decision set aside and matter returned to the decision maker with specific directions LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 27, 28 and 194 Recruitment and Selection Directive (Directive 12/20) cl 7 -- 2 of 6 -- 3 CASES: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision [1] Mr Robert Black is employed by the State of Queensland (Department of Environment and Science) ('the Department'), on a permanent basis in the substantive position of Senior Investigator (AO6). Mr Black was appointed to his substantive position in 2010, but since 2015, has predominately been acting in the role of Principal Investigator (AO7). [2] In response to an internal job advertisement, Mr Black applied for the advertised position of Principal Investigator AO7 position number 762642 ('the position') within the State Investigations Unit of the Department. The application for the promotion to the position required the applicants to submit an application form, current resume including a short statement detailing the applicant's interest in the advertised position and attend an interview with a panel. [3] On 14 February 2022, Mr Black was advised by the Department that he had been unsuccessful in his application for the position. [4] The successful appointee's promotion to the position was published in the 18 February 2022 publication of the Queensland Government Gazette. [5] By notice of appeal filed in the Industrial Registry on 10 March 2022, Mr Black appealed the promotion pursuant to s 194(1)(c) of the Public Service Act 2008 (Qld) ('the PS Act') and relies on the following grounds in support of his appeal, as relevantly summarised: (a) the panel did not make a 'fair and reasonable' merit assessment and failed to consider all the merit information contrary to the criteria as set out in s 28 of the PS Act; (b) the panel placed too much weight on Mr Black's application and did not adequately afford weight to Mr Black's interview contrary to cl 7.2(b) of the Recruitment and Selection Directive (Directive 12/20) ('Directive 12/20'); (c) the panel did not adequately consider and document Mr Black's responses to specific interview questions and failed to consider Mr Black's experience, qualifications, and other work history contrary to cl 7.2(b) of Directive 12/20; -- 3 of 6 -- 4 (d) the panel chair has a close personal friendship with the successful applicant and did not adequately declare this conflict, or remove himself from the panel; (e) a panel member did not adequately declare a conflict of interest with Mr Black, and it is reasonably suspected that the panel member acted in a prejudicious manner towards Mr Black; (f) it is reasonably suspected that the panel placed too much weight on the successful applicant's reference to leading/managing the 'Linc investigation' and Mr Black submits that the reference to the 'Linc investigation' can not meet the relevant criteria as the successful applicant did not lead or manage the 'Linc investigation'; and (g) the panel failed to appropriately measure and document the comparative merits between the applicants contrary to cl 7.2(d) of Directive 12/20. [6] The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission. [7] Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act..1 Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable. [8] I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.2 An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.3 [9] For the reasons contained herein, I have found that the decision was not fair and reasonable. [10] Relevantly, the Department does not seek to defend the decision that is the subject of this appeal. 1 See the Public Service and Other Legislation Amendment Act 2020 (Qld). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 3 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018). -- 4 of 6 -- 5 [11] In the Department's written submissions,4 the Department accepts that there are deficiencies in the recruitment process in relation to the advertised position, and states that it does not oppose the outcome being sought by Mr Black, namely, that the Commission set aside the decision to promote the successful applicant to the role and that the Department conduct a fresh recruitment process for the role of Principal Investigator (AO7).5 [12] The procedural deficiencies relied on by Mr Black includes: (a) that the panel did not take into consideration all merit information and did not place sufficient weight on Mr Black's interview responses or his experience in the role of Principal Investigator and in the Manager position; (b) that a panel member had a perceived close personal friendship with the successful applicant and failed to disclose any potential conflict of interest; and (c) that undue weight was placed on the written application in circumstances where the Position Description 'How to Apply' section did not require applicants to address key criteria, rather, it sought a statement of two pages addressing why the applicant was interested in the position. [13] The procedural deficiencies identified by Mr Black, if able to be established, support a conclusion that the recruitment process failed to have proper regard to s 28 of the PS Act and cl 7 of Directive 12/20. [14] I am satisfied on the material before me that Mr Black has established that there were procedural deficiencies in the recruitment and selection process which renders the decision to be neither fair nor reasonable. [15] Accordingly, I will set aside the decision subject to this appeal and direct that the matter be returned to the Department with a copy of the decision on appeal and further direct that the current appointment be revoked and that the Department conduct a fresh recruitment process for the position. Order [16] I make the following orders: 1. Pursuant to s 562C(1)(b) of the Industrial Relations Act 2016 (Qld), the decision the subject of the appeal is set aside. 4 Filed on 22 March 2022. 5 Appellant's submissions filed on 11 March 2022, [24]. -- 5 of 6 -- 6 2. I direct that: (a) the matter be returned to the decision maker with a copy of the decision on appeal; (b) within one month of receiving the decision on appeal, the Chief Executive of the Department is to revoke the appointment to the position of Principal Investigator AO7 position number 762642 published in the Queensland Government Gazette on 18 February 2022 and publish a gazette notice that the appointment is revoked; (c) the Department is to form a new selection panel for the purposes of conducting a fresh recruitment process for the position of Principal Investigator AO7 position number 762642; and (d) the new selection panel be provided with a copy of ss 27 and 28 of the Public Service Act 2008 (Qld) and the Recruitment and Selection Directive (Directive 12/20). -- 6 of 6 --