Dallmann v State of Queensland (Queensland Health) [2021] QIRC 93

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: Dallmann v State of Queensland (Queensland Health) [2021] QIRC 093 Dallmann, Trena (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2020/296 PROCEEDING: Public Service Appeal – fair treatment decision DELIVERED ON: 22 March 2021 HEARD AT: MEMBER: On the papers Hartigan IC ORDERS: 1. I grant an extension of time to file the appeal. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the appeal decision be set aside and, in lieu thereof, a decision is made to approve the request for an extension of the secondment made by Ms Dallmann until her current secondment ends on 31 March 2021. CATCHWORDS: LEGISLATION: INDUSTRIAL LAW – public service appeal – appeal against a fair treatment decision – whether decision to refuse a request to extend a secondment was fair and reasonable Industrial Relations Act 2016 (Qld), s562B Public Service & Other Legislation Amendment Bill 2020 (Qld) Public Service Act 2008 (Qld), s 201 Queensland Health Human Resource Policy B42 (QH-POL-224) -- 1 of 11 -- 2 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Reasons for Decision [1] Ms Trena Dallmann is substantively employed as a permanent full-time Administration Officer (A03.4) with the Acute Adult Mental Health Inpatient Unit ("AAMHIU"), Mental Health Service Group ("MHSG") within the Townsville University Hospital ("TUH"), Queensland Health ("Queensland Health") having commenced in that position on 4 February 2008. [2] Since September 2016, Ms Dallmann has been on secondment in Brisbane working within various units of Queensland Health. [3] Ms Dallmann’s family permanently resides in Brisbane as does her elderly mother. [4] In August 2020, Ms Dallmann requested that her team leader (to her substantive position) approve an extension to Ms Dallmann’s secondment to the Royal Brisbane and Women’s Hospital ("RBWH"). [5] On 17 November 2020, Ms Dallmann’s request for approval to an extension of her secondment was denied and she was advised that she was expected to return to her substantive position in Townsville from 1 November 2020 ("the decision"). [6] Ms Dallmann commenced a grievance procedure. On 16 October 2020, Ms Dallmann was advised that the MSHG within the TUH would not support any further secondment requests by Ms Dallmann. [7] Ms Dallmann appeals the decision on the basis that she contends that it is not fair and reasonable as the decision: (a) is not balanced against the effects of Ms Dallmann’s health and wellbeing; and (b) is not consistent with Directive 01/20: Employment Arrangements in the Event of Health Pandemic. [8] Ms Dallmann entered into a further extension of her secondment with the RBWH up to 31 December 2020. That extension has been extended by agreement between the parties for the duration of the appeal. [9] Section 562B(1) of the Industrial Relations Act 2016 ("the IR Act") provides that the section applies to a public service appeal made to the Commission. Section 562B(2) of the IR Act provides that the Commission must decide the appeal by reviewing the -- 2 of 11 -- 3 decision appealed against. Section 562B(3) of the IR Act provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. [10] Sections 562B(2) and (3) of the IR Act replicate ss 201(1) and (2) of the Public Service Act 2008 (Qld) ("the PS Act"), prior to their deletion by the amendment act, so as to ensure that the purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable.1 The principles applicable under those previous provisions of the PS Act, regarding the nature of such public service appeals, apply to the equivalent provisions under the IR Act. [11] I must decide the appeal by reviewing the decision appealed against.2 The word 'review' has no settled meaning, so it must take its meaning from the context in which it appears.3 An appeal under Ch. 11, Pt. 6, Div. 4 of the IR Act is not by way of rehearing,4 but involves a review of the decision arrived at and the decision-making process associated with it.5 [12] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.6 Accordingly, the issue for determination in this appeal is whether the decision appealed against was fair and reasonable.7 Extension of appeal period [13] The appeal was filed 5 days outside the pre-scribed 21 day time limit to file an appeal. [14] Ms Dallmann requests that the Commission grant an extension of time for her to file the appeal. Ms Dallmann submits that the delay in filing was partly caused by Queensland Health's failure to provide timely details of the appeal avenue available to her. In correspondence attached to Ms Dallmann's submissions, it is clear that on several occasions Ms Dallmann identified that she intended to pursue an appeal in relation to the decision and sought information from her employer in relation to the steps she could take in order to file an appeal. [15] Queensland Health submits that the Commission deny Ms Dallmann's request for an extension to appeal, on the basis that the appeal was filed 5 days outside of the prescribed 21 day time limit and accordingly, should be struck out for want of jurisdiction. Queensland Health further submits that no grounds exist upon which the Commission may be satisfied that it is reasonable to extend time. [16] I do not accept Queensland Health's submissions in that regard. I consider that Queensland Health was on notice that Ms Dallmann intended to dispute the reasonableness of the decision. This is so, as Ms Dallmann lodged a grievance with 1 Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld), 6. 2 Industrial Relations Act 2016 s 562B(2). 3 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ). 4 In the sense used in the legal categories of appeals - Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 5 Ibid. 6 Industrial Relations Act 2016 s 562B(3). 7Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA). -- 3 of 11 -- 4 respect to the decision and, during the course of the grievance process, requested information regarding steps she could take to appeal the decision. Accordingly, Queensland Health could not be said to have been taken by surprise by the filing of the appeal and will not, in my view, suffer any prejudice in relation to the filing of the Notice of Appeal five days out of time. [17] Accordingly, I grant the extension of time to file the appeal. Relevant background [18] Since September 2016, Ms Dallmann has been on secondment to Brisbane working within various units of Queensland Health as follows: (a) Providing backfill relief with the Prince Charles Hospital from 12 September 2016 to 16 April 2017; (b) Providing backfill relief with the Metro South Community Health Centre for the periods: - 17 April 2017 to 17 June 2017; - Extended 18 June 2017 to 15 July 2017; - Extended 16 July 2017 to 7 January 2018; and - Extended 8 January 2018 to 26 May 2019 with return to her substantive TUH role on 27 May 2019 (c) For a project funded role with the Genomic Institute, RBWH for the periods: - 8 July 2019 to 28 July 2019; - Extended 29 July 2019 to 11 July 2020; - Extended 12 July 2020 to 31 October 2020; and - Extended 1 November 2020 to 22 November 2020. [19] On 17 July 2018, Ms Dallmann advised Queensland Health that her family had relocated to Brisbane in 2015. Ms Dallmann states she had been unsuccessful in applying for numerous A03 and A04 positions (after making more than 60 applications in 18 months and having acted in some of those positions previously) and that it was distressing for her to move from her family to maintain her employment. [20] Ms Dallmann states that she has been seeking a permanent role in Brisbane with Queensland Health to be with her family and has engaged in discussions with her substantive and seconded managers about her wish to move to Brisbane. [21] In August 2020, Ms Dallmann requested that her team leader, Ms Sharon Sheehan, approve an extension to her secondment with RBWH. Ms Sheehan advised Ms Dallmann that the request was refused and provided her with alternative options, including to take leave. [22] On 17 September 2020, Ms Kim Applin, Business Services Manager, advised Ms Dallmann that any further secondment placements would not be supported, and that her secondment had already been extended beyond the maximum of 12 months in support -- 4 of 11 -- 5 of her personal circumstances. Ms Applin advised Ms Dallmann that she was expected to return to her substantive position in Townsville from 1 November 2020. [23] On 18 September 2020, Ms Dallmann requested Ms Applin to reconsider the decision until such time as Ms Dallmann secured alternative employment, or the current global pandemic abates, and she felt secure enough to relocate to Townsville and return to her substantive role. Ms Dallmann stated that she would like to lodge a formal appeal of the decision if it was unable to be reconsidered. [24] On 24 September 2020, Ms Applin advised Ms Dallmann that the position remained unchanged due to the obligations to deliver an efficient and effective administration service to the service group which can best be provided with a stable and consistent workforce. [25] On 1 October 2020, Ms Dallmann lodged a grievance on the basis that the decision was unfair and unreasonable and was not balanced against a duty of care for her wellbeing. [26] On 16 October 2020, Ms Ann-Marie Mallet, Service Group Director, advised Ms Dallmann that the MHSG would not support further extensions to Ms Dallmann's secondments. Ms Mallett stated that she had considered Ms Dallmann's personal circumstances, the workforce needs and the changing landscape for recruitment and selection practices. This included the Responsible Workforce Management ("RWM") initiative which, it was said, impacts on the ability to recruit to and back-fill non-frontline positions. [27] On 19 October 2020, Ms Dallmann requested Ms Mallett to reconsider her decision. Ms Dallmann advised that for medical reasons she was unable to undertake duties in a different city away from her family support network at this time. Ms Dallmann sought that her secondment continue to enable her to remain working while based in Brisbane. Ms Dallmann requested advice as to the appeal process if her request was not approved. Ms Dallmann attached a medical certificate from Dr Katie Sunderland, General Practitioner, dated 19 October 2020 which certified Ms Dallmann with 'a medical condition and will be required to stay in Brisbane for treatment from 19/10/2020 to 01/02/2021 inclusive'. [28] On 27 October 2020, Ms Dallmann discussed her grievance with Ms Kylie Tomarchio, Human Resources Advisor. A file note of the meeting records that Ms Dallmann was seeking to remain in Brisbane for family and health reasons. Ms Dallmann was provided links to the grievance management and appeals process. [29] On 29 October 2020, Ms Dallmann advised Ms Mallett that she intended to pursue an appeal as the decision was not balanced against the effects on her health and wellbeing and will result in her having to access long term sick leave. Ms Dallmann requested an extension to her secondment for 21 days to afford time for an appeal process and to negate the need to access long term sick leave. [30] On 30 October 2020, Ms Mallett approved Ms Dallmann's extension of her secondment to 22 November 2020 and provided Ms Dallmann information on the appeal process. -- 5 of 11 -- 6 [31] On 20 November 2020, the secondment was extended by agreement until receipt of the Commissioners' decision. [32] On 20 November 2020, Ms Dallmann provided further information for Ms Mallett's consideration. This included that she suffered a mental health condition that requires her to remain in Brisbane to access treatment. If she is to return to work in Townsville, she would need to access sick leave to continue treatment. [33] On 27 November 2020, Ms Mallett affirmed her decision not to support any further secondments. Relevant policies and directives [34] The parties have each referred to Queensland Health Human Resource Policy B42 (QH- POL-224): Secondment ("the secondment policy"). The purpose of the secondment policy is to specify the principles for the secondment of Queensland Health employees. [35] Clause 3 of the secondment policy provides for the approval of a secondment as follows: The decision to agree to second a Queensland Health employee, or extend a secondment, is at the discretion of the appropriate delegate. In making decisions about an employee’s mobility, the relevant managers are to take a Queensland Health-wide and not a local perspective, including the recognition of the value of staff mobility and professional development. Wherever possible, an employee will be released to other duties they have won, in open merit selection, an opportunity for secondment. However, consideration will be given to the length of the secondment and factors outlined in section 4 of this schedule when making the decision. [36] Clause 4 of the secondment policy provides that, except for the provisions of section 5 of this schedule, the release of a Queensland Health employee on secondment can be refused by Queensland Health only where there are significant operational reasons. Examples of what amount to significant operational reasons include but are not limited to the following: (a) an unavailability of replacement staff with skills, knowledge and expertise at an appropriate level; (b) detriment to necessary service levels of important initiatives; (c) unacceptable impact on workloads of other staff; (d) operational disruption caused by serious secondment; and (e) premature loss of the recruitment and training investment in a recent appointee [37] Clause 5 of the secondment policy requires the reasonable notice to be given in relation to a secondment including the provision of a release date which provides sufficient time to implement consequential staffing arrangements. -- 6 of 11 -- 7 [38] Clause 6 of the secondment policy provides that when a secondment is proposed to be extended, reasonable notice is to be provided to the employer's substantive government entity/work area and the extension negotiated between the releasing and receiving work areas. It further provides that all agreed secondment extensions are to be in writing, and the relevant HR forms submitted to the payroll hub. Extensions to secondments resulting in a total period of over 12 months must be advertised and selected in accordance with s 1 of the Schedule. There is no suggestion in this matter that an extension to a secondment over 12 months has not been advertised and selected in accordance with s 1 of the Schedule. [39] Clause 9 of the secondment policy provides for the responsibilities of managers. Relevantly, it provides that the manager of the work unit seeking to arrange a secondment is to undertake certain steps including to: (a) negotiate the administrative arrangement with the releasing government entity or Queensland Health work unit, such as the length of the secondment, the start date and end date, and provide written confirmation of the arrangement; (b) ensure any internal administrative arrangements are made for the secondment of the public service employee into Queensland Health, e.g. network and information access, HR forms etc. [40] Clause 9 also provides the steps that a releasing manager of the secondee is required to take including: (a) monitor the expected date of return, liaise with the employee concerning their return and manage placement of the employee in completion of the secondment; (b) liaise with the receiving government entity/work unit manager regarding the return or permanent transfer/movement of the employee; and (c) complete the relevant HR forms. Consideration [41] As noted above, the decision to agree to second or to extend the secondment of a Queensland Health employee is at the discretion of the appropriate delegate. However, the exercise of that discretion is not limitless. For instance, a refusal of such a request can only be made on the basis of significant operational reasons. Further, the exercise of the discretion should always be reasonable. [42] The parties each raise matters that occurred after the decision was made. These matters fall into two categories of information. [43] The first category relates to information that arose during the course of the grievance process and provides perspective and an explanation of information relevant to the decision or the decision-making process. For example, it contains information as to why the respondent refused Ms Dallmann's request for an extension of her secondment. I -- 7 of 11 -- 8 consider these matters to be relevant to my consideration of the decision and the decision- making process and I will discuss them further below. [44] The second category relates to information about matters not relevant to the decision and the decision-making process, and include, for instance, an allegation made by the respondent that Ms Dallmann acted unreasonably by entering into a contract extension to 31 December 2020 without the approval of the respondent.8 I will not consider matters that are not directly relevant to the decision or the decision-making process. [45] It is clear from the respondent's submissions in this appeal and the statements made by the respondent during the grievance process, that it has taken a view that Ms Dallmann should not be permitted to undertake any more secondments on the basis that she has been on serial secondments since 19 September 2016 (but for a break of some 42 days). The respondent argues that the serial secondments have resulted in operational disruption and uncertainty associated with the need to backfill Ms Dallmann's substantive role. [46] The respondent's submissions seem to suggest that Ms Dallmann's previous secondment caused inconvenience to the respondent. However, it was the role of the respondent to consider the impact of each of those secondments on each occasion Ms Dallmann requested a secondment or an extension of the secondment. It can only be assumed, given that those requests were approved, that there were no significant operational reasons to refuse Ms Dallmann's requests on those previous occasions. It is now not appropriate, nor relevant to my consideration, to revisit previous approvals. [47] Accordingly, what is relevant is the proposed secondment which is the subject of the current request and subsequent decision appealed against. [48] The request was put by Ms Dallmann in an email dated 17 July 2018: … I am sending this email regarding the decision from your office last year to decline my request to relinquish my permanent AO3 position with the Mental Health Service to be an unattached officer on compassionate grounds. I have just finished my last secondment at Forensic CYMHS South Brisbane as I was advised that I was required to return to my substantive position in the Townsville Mental Health Service Group by 30 th July. My family including my husband and two daughters have all relocated to Brisbane since 2015. In this time, I have applied for numerous advertised AO3 and AO4 positions in Brisbane with Queensland Health (QH) but have been unable to secure a permanent appointment. My preference is to stay with Queensland Health (QH) as this is where I have built my experience and have become a very committed team member. I have financial commitments that require I maintain my permanent tenure and emotionally I need to be in Brisbane with my family. I acknowledge that there are operational needs for the work unit and I assure you that I remain very committed to my work. That said I make it no secret and you will understand that it is very distressing for me to have to move from my family to maintain my employment with the department. I did not envisage that considering my breadth of experience and excellent work record in over 10 years with the 8 This is denied by Ms Dallmann. -- 8 of 11 -- 9 department that I would not be able to secure a similar role in the Brisbane region having lodged more than 60 applications in 18 months and acting in some of those positions prior. I guess I must just be extremely unlucky. Please find attached my original letter dated 28 th November 2017 regarding relinquishment of my position while maintaining my permanent AO3 tenure (policy B43 QH-POL-216), as requested by my Team Leader from the Mental Health Service Group. Following this in April 2018, I finally received an email from my Team leader stating that my request for relinquishment had ben declined by your office. I find myself sending this email again to implore this decision to be reconsidered on compassionate [sic] grounds as I find myself in significant distress over the prosect of leaving my family. My recent temp/acting role could be extended significantly if I were not required to return to Townsville at this time. This would give me more time to find a suitable position here and I now have a case manager appointed from HR in this region to assist with my applications and also considerations of possible transfer at level. Addition to my distress is the failing health of my Mum. My plans were to be close by for those times when she needs me in the coming years and so this situation is also adding to her anxiety. In the meantime at least I have the EAP service as I am not coping very well as each day passes and the imposed deadline draws near. … [49] As noted above, the respondent refused the request for an extension to Ms Dallmann's secondment. Ms Dallmann sought the reconsideration of her request for an extension to her secondment. The respondent's reconsideration of the request was undertaken by Ms Applin who committed her decision to writing in an email dated 17 September 2020 addressed to Ms Dallmann. Relevantly, Ms Applin's email was as follows: … In response to your request to extend to your current secondment arrangement, I would like to confirm that we have given careful consideration to your request and are unfortunately unable to support any further secondment placements for you. In accordance with HR Policy B42 Secondment, attached for your reference, secondments are not to exceed 12 months. I note that you have been acting in an alternative role with the Royal Brisbane and Women's Hospital since 8 July 2019 and this placement is due to conclude on 31 October 2020. Your current placement has already included an extension beyond the maximum 12 months as per the secondment guidelines, and this extension was approved in support of your personal circumstances. As we are not in a position to be able to approve a further period of secondment following this temporary engagement, your return to THHS is expected to be effective from 1 November 2020. Please notify me if you are not able to return to your substantive role from this date. … [50] Ms Dallmann sought a further reconsideration of the request and Ms Applin sent a further email on 24 September 2020 in the following terms: … -- 9 of 11 -- 10 Your request to extend your secondment in Brisbane has been given extensive consideration, taking into account your personal circumstances and additionally, I have discussed your request with our service group director who also supports my recommendation. My position remains unchanged from my previous advice to you, in that we cannot support any further secondment periods. Our obligations are to the delivery of an efficient and effective administration service to our service group and we can best provide this with a stable and consistent workforce. I have been very reasonable and accommodating of your personal needs in supporting your secondment placement and in providing you with an extension to this secondment placement. We are very much looking forward to your return in early November. …. [51] As noted above, Ms Applin contends that a secondment, pursuant to the secondment policy, is not to exceed 12 months. Ms Applin relevantly notes that Ms Dallmann's placement has already included an extension beyond the "maximum 12 months" and this extension was approved in support of "your personal circumstances". [52] I do not consider Ms Applin's reliance on the secondment policy as being accurate in so far as it prescribes a "maximum 12 months". Relevantly clause 1 of the secondment policy provides that a secondment is not to exceed 12 months from the date of duty, except when written consent to a specified end date longer than 12 months is established prior to the commencement of the secondment. Accordingly, clause 1 of the recruitment policy permits a scenario where a secondment may exceed 12 months in circumstances where written consent to a specified end date is established prior to the commencement of the secondment. [53] Clause 1 of the secondment policy must be read in conjunction with clause 4. Clause 4 provides that a refusal to a secondment can only be made in circumstances where significant operational reasons are provided. Accordingly it is possible, in accordance with the secondment policy, for a secondment to be granted in circumstances where it extends beyond 12 months and written consent has been obtained prior to the extension and in circumstances where no significant operational reasons arise pursuant to clause 4 of the secondment policy. [54] In this matter, Ms Dallmann was seeking the written consent from the respondent for the extension to her secondment. Accordingly, if such written consent had been provided, Ms Dallmann would be permitted, in accordance with clause 1 of the secondment policy, to continue on the secondment. [55] I consider that in these circumstances then, the respondent is obliged to consider whether there are significant operational reasons when considering whether it will agree to a request for an extension of a secondment. Whilst the respondent speaks in vague terms in its written submissions of their being "operational disruption and uncertainty associated with the need to backfill Ms Dallmann's substantive position and consequently, secondment is not an efficient means for the respondent to manage its workforce particularly in line with the responsible workforce management policy". The respondent provides no particulars in either its submissions or the written emails provided to Ms Dallmann to explain the reason to refuse the secondment by particularising these matters. Further, the respondent has not provided any evidence or information or -- 10 of 11 -- 11 supporting documents that would support a conclusion that the secondment requested by Ms Dallmann should be refused for a significant operational reason. [56] A consequence of the failure of the respondent to properly particularise the basis on which it has refused the decision, renders the decision not fair or reasonable. Further, the respondent, by this appeal process, was given an opportunity to articulate what the significant operational reasons were beyond unparticularised and general comments, yet no substantive information was provided which would support a conclusion that the secondment should be refused for a significant operational reason. [57] On 26 February 2021, the Commission received correspondence from Ms Raelene Verran, Senior Industrial Relations Officers, Human Resources and Engagement, Townsville Hospital and Health Service, advising that Ms Dallmann's current secondment is to conclude on 31 March 2021. Accordingly, if Ms Dallmann intends to seek a further secondment a new request will be required to be made. The respondent will be obliged to consider any future request for a secondment made by Ms Dallmann in accordance with the secondment policy. Conclusion [58] For the forgoing reasons, I have concluded that the decision was not fair or reasonable. I do not consider that the length of the secondment alone was a proper reason to refuse Ms Dallmann's request for an extension of the secondment. The length of the extension of the secondment was a matter for the parties to consider as a result of the request made by Ms Dallmann and any refusal to grant that request must be done on the grounds articulated in clause 4, including significant operational reasons. The respondent has not particularised any significant operational reasons other than in a very vague sense, which support the decision to refuse Ms Dallmann's request for an extension to her secondment. [59] I make the following orders: 1. I grant an extension of time to file the appeal. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the appeal decision be set aside and, in lieu thereof, a decision is made to approve the request for an extension of the secondment made by Ms Dallmann until her current secondment ends on 31 March 2021. -- 11 of 11 --