Durrand v State of Queensland (Department of Education) [2021] QIRC 105

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Durrand v State of Queensland (Department of Education) [2021] QIRC 105 Durrand, Michael James (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2021/43 PROCEEDING: Public Service Appeal – Fair Treatment Decision DELIVERED ON: 26 March 2021 MEMBER: HEARD AT: Hartigan IC On the papers ORDER: 1. Pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – fair treatment decision – jurisdictional objection – whether the decision can be appealed against LEGISLATION: Industrial Relations Act 2016 (Qld), s 562A Public Service Act 2008 (Qld), s 194, s 195 Directive 11/20 Individual Employee Grievances Reasons for Decision Relevant Background [1] Mr Michael James Durrand applied for the position of Positive Behaviour Specialist at Atherton State High School. Mr Durrand was interviewed for the position. However, Mr Durrand was not successful and another employee was selected for the position ("the decision"). [2] Mr Durrand appeals the decision by way of Notice of Appeal that was filed in the Industrial Registry. -- 1 of 5 -- 2 [3] The decision appealed against relates to a decision by the Department of Education ("the Department") to appoint another employee to the position of Positive Behaviour Specialist. [4] The decision was made following an expression of interest process to fill two positions at Atherton State High School, namely, the position of Reasonable Behaviour Specialist and Responsible Thinking Classroom Supervisor. The Department explains that these positions were to be filled by teaching staff tasked to implement the Positive Behaviour for Learning (PBL) framework at Atherton State High School. [5] The grounds of appeal stated in Mr Durrand's Notice of Appeal include: I have many years' experience in PBL schools as both a teacher and Guidance Officer, have taught in alternative learning settings dealing entirely with the tier 3 and 2 students, and doing so very successfully, I have been a Guidance Officer for 18 months and am currently a teacher of a ASHS on leave acting in a role above level as a Guidance Officer, have degrees in law, education, moral psychology as well as a masters in Guidance and Counselling and am currently completing a degree in psychology. No one else on staff would have even a third of these credentials. The successful appointee has no skills, knowledge, qualifications or experience at all outside of teaching maths. Her pedagogy conflicts with PBL at its core – in a review of her teaching last year, classroom assessors identified absolutely zero times in the observed class where the appointee gave positive feedback to her students. I was interviewed for this role, and was unsuccessful in this role. I was given feedback that the information I presented was great, but not specific enough. I note that I have previously been given feedback from this school that the information I gave was great, but too specific. There is no way known that this is an appointment on merit as there is no teacher on staff at ASHS who has even one tenth of the skills, experience and qualifications that I have. I note that there are other complaints from me against dealings as ASHS – more specifically the negative, unprofessional and incorrect viewpoints unlawfully given by an SGO. This is more than likely the same issue, but it is now having further cost to me and I write to ask for your input to end this unlawful and unjustifiable decision. [6] On 25 January 2021, I issued directions for the parties to file and serve written submissions. In response to Order 1 of those Directions Orders, where Mr Durrand was to provide written submissions in support of his Appeal, Mr Durrand sent correspondence in the following terms: … At this stage, all information that I have has been expressed in the initial appeal form. I look forward to being able [sic] respond to the information presented by the respondent and better understand what is going on here. [7] The Department filed its submissions of 8 February 2021 and Mr Durrand filed submissions in reply on 15 February 2021. -- 2 of 5 -- 3 Jurisdiction [8] Section 194 of the Public Service 2008 (Qld) ("the PS Act") lists various categories of decisions against which an appeal may be made. The Department contends that the appeal made by Ms Durrand is not against such a decision. [9] It appears that Mr Durrand contends1 that his appeal "may be read as an appeal about the appointment of duties to a lessor qualified and experience [sic] person being unfair and unreasonable under section 194(1)(eb) of the Public Service Act in that, inter alia, it breaches to [sic] Merit Principal [sic]." [10] Mr Durrand continues, contending that "[n]otwithstanding, and in the alternative, it may be seen as an appeal on section 194 (1)(a) in that this decision was made as a decision that does not act under the directives of the merit principle." [11] The Department raises jurisdictional objections to the appeal. [12] Firstly, the Department contends that the selection decision is not considered a promotion decision as defined by s 194(1)(c) of the PS Act as the employee, a public service officer, has not been permanently appointed to another higher classification position. [13] The Department submits that the positions subject of the decision were neither a promotion nor a different classification for the successful applicants, rather they would remain in their substantive classification void of classroom teaching responsibilities. [14] The Department explains that an interview process was conducted to inform the recruitment and selection decision to fill the roles and Mr Durrand participated in that interview process. [15] Secondly, the Department objects to the appeal on the basis that Mr Durrand has not used the individual employee grievance process before lodging the appeal. It is contended by the Department that a decision relating to the recruitment and selection of a public service employee cannot be the subject of an individual employee grievance. [16] In response to these jurisdictional objections, Mr Durrand contended that the Department's objections are more a criticism the QIRC's Form 89, not specifically matching the legislation rather than an issue that has merit in this appeal. Mr Durrand submits that neither ss 194(1)(eb) and 194(1)(a) of the PS Act require that the employee exhaust the grievance process prior to filing an appeal. Relevant provisions of the PS Act and Directive [17] Section 194 of the PS Act relevantly set out the decisions which may be appealed: 194 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— (a) a decision to take, or not take, action under a directive; 1 Mr Durrand's written submissions filed on 15 February 2021, [14] and [15]. -- 3 of 5 -- 4 … (c) a decision to promote a public service officer (a "promotion decision"); … (eb) a decision a public service employee believes is unfair and unreasonable (a "fair treatment decision"); … [18] Section 195 of the PS Act sets out decisions against which appeals cannot be made. 195 Decisions against which appeals can not be made (3A) A person can not appeal against a fair treatment decision— … (c) relating to the recruitment or selection of a public service employee; or … Directive 11/20: Individual Employee Grievances (Directive 11/20) [19] The purpose of Directive 11/20 is to provide information on the appeal rights of public service employees under the PS Act. [20] Clause 6 relevantly provides matters that cannot be the subject of a grievance: 6. Matters that cannot be the subject of an individual employee grievance 6.1 The following decisions, conduct or behaviour cannot be the subject of an individual employee grievance under this directive: … (c) a decision relating to the recruitment or selection of a public service employee … 6.2 Under the PS Act, an employee seeking to lodge a fair treatment appeal is generally required to have used their agency individual employee grievance mechanism prior to lodging an appeal. 6.3 An employee may choose not to use their agency’s complaints mechanism where they are seeking to appeal a finding by the chief executive under section 187 of the PS Act that a disciplinary ground exists for an employee. Section 195(3A)(b) of the PS Act allows the employee aggrieved by this decision to lodge a public service appeal in relation to the decision. Consideration [21] Prior to determining whether a decision is fair or reasonable, I must be satisfied that I have jurisdiction to determine the appeal. -- 4 of 5 -- 5 [22] The Department contends that the decision is not a promotion decision. On the information produced to me during the course of this appeal, I am satisfied that the public service officer who was selected for the position was not promoted within the meaning of "promote" as contained in Schedule 4 to the PS Act. Accordingly, I am satisfied that the decision is not a promotion decision. [23] Mr Durrand's submissions regarding the decision are critical of the recruitment and/or selection process for the position. The grounds of appeal relied on in the Notice of Appeal by Mr Durrand attack the appointment of the relevant employee in the following terms: There is no way known that this is an appointment on merit as there is no teacher on staff at ASHS who has even one tenth of the skills, experience and qualifications that I have. [24] Given the terms and nature of Mr Durrand's complaint, I do not accept his submissions2 that "this is not about recruitment or selection of anything". [25] Mr Durrand is clearly critical of the selection process adopted by the Department to fill the position of Responsible Behaviour Specialist. Specifically, he contends the merit principle was not applied to this selection process. [26] Relevantly, the Commission's jurisdiction to conduct a public service appeal is enlivened by the type of decisions that may and may not be appealed pursuant to ss 194 and 195 of the PS Act. [27] I am satisfied on the material before me that the decision Mr Durrand seeks to appeal relates to a decision to recruit or select a public service employee. [28] Accordingly, and pursuant to s 195(3A)(c) of the PS Act, Mr Durrand may not appeal such a decision. Conclusion [29] For the forgoing reasons, I order: 1. Pursuant to s 562A(3)(b) of the Industrial Relations Act 2016 (Qld), the appeal is dismissed. 2 Mr Durrand's written submissions filed on 15 February 2021, [11]. -- 5 of 5 --