QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Scarff v State of Queensland (Department of Education) [2024] QIRC 165

PARTIES:	
	Scarff, Kirrily
(Appellant)

v

State of Queensland (Department of Education)
(Respondent)
	
CASE NO:
	PSA/2024/61
	
PROCEEDING:
	Public Sector Appeal – Appeal against a promotion decision 

DELIVERED ON:

HEARING DATE:	4 July 2024

4 July 2024	

MEMBER:

HEARD AT:	
Dwyer IC

Brisbane

ORDER:
	Pursuant to s 562A(3)(b)(ii) and (iii) of the Industrial Relations Act 2016 (Qld) the Commission declines to hear the appeal 
	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY  consideration under s 562A of the Industrial Relations Act 2016 (Qld) whether to decline to hear appeal – where appellant employed as Lead Teacher – where appellant applied for 12 month appointment – where appellant unsuccessful – where grounds of appeal sought merit review – where appeal misconceived – where utility of appeal not evident – meaning of compelling reason – where compelling reason displaces right to be heard – appeal not heard 	
LEGISLATION:
	Industrial Relations Act 2016 (Qld) s 562A, s 562B, s 562C

Public Sector Act 2022 (Qld) s 131
	
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)

Wyer v State of Queensland (Department of Education) [2022] QIRC 408	

Reasons for Decision
ex tempore

	Background

[1]	Ms Kirrily Scarff is employed as a Lead Teacher (AO5 Level 1) with the Department of Education (‘the respondent’) at a High School in regional Queensland.

[2]	At some time prior to 11 March 2024, Ms Scarff applied for the position of Senior Education Officer – Special Duties (‘the role’). The position applied for was a 12-month appointment. It is not clear from the material filed by either party, but it seems that the appointment was in respect of the 2024 academic year or at least, the substantial part of it. 

[3]	Ms Scarff’s written application was considered and she was one of three applicants shortlisted for interview. Ms Scarff was interviewed in accordance with the usual practice by a panel of three senior staff. Ms Scarff was advised on 11 March 2024 that she had been unsuccessful in obtaining the role. 

[4]	Ms Scarff now seeks to appeal that decision which, for the purposes of s 131(e) of the Public Sector Act 2022 (Qld) (‘PS Act’), is a promotion decision (‘the appeal’).

[5]	The grounds of the appeal cited in Ms Scarff’s Appeal Notice are:

1.	One aspect of the selection process was focused on – the interview.

2.	Feedback by the panel chair stated I was not able to ‘project myself into the role’ during the interview. This is in direct conflict to a national accreditation process whereby I was accredited by the Qld College of Teachers through a very rigorous process against the Australian Professional Standards for teachers as a ‘Lead teacher’. My accreditation as a ‘Lead Teacher’ was based on a portfolio which evidenced building teacher capability in the…region in the specific area of supporting colleagues to cater to the needs of diverse learners, specifically students for whom English is an additional language/dialect.

3.	The position is a 12-month position, for 2024. The person who was appointed is on Long Service Leave for all of Term 2. This is unethical and should have been taken into account during the selection process.  

[6]	Following the filing of the appeal, directions were issued for the parties to file written submissions. Upon consideration of the grounds of appeal and the submissions filed by Ms Scarff, the Commission formed a preliminary view that the entire appeal was founded on grounds that were misconceived or that, given the circumstances, there may be no utility in dealing with it. 

[7]	Consequently, a mention was held on 18 June 2024, and it was explained to Ms Scarff that the Commission was contemplating not hearing her appeal pursuant to the discretion available in s 562A of the Industrial Relations Act 2016 (Qld) (‘IR Act’). Ms Scarff was asked to turn her mind to submissions addressing why, in her view, she had an arguable case for her appeal to be heard. A hearing for those submission was scheduled for 4 July 2024. 

[8]	The reasons that follow deal with the Commission’s consideration as to whether the discretion pursuant to s 562A of the IR Act ought to be exercised. Additionally, the Commission has had regard to submissions filed in the substantive appeal to assist in understanding the arguments sought to be advanced by Ms Scarff in the appeal, and to the oral submissions made by both parties at the hearing of the matter. 

[9]	It is not intended to reproduce a full summary of submissions from the parties in these reasons. The salient portions of those submissions are referred to in the Commission’s consideration of the matter that follows.

Appeal principles generally

[10]	Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.  The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears. 

[11]	An appeal under Chapter 11 of the IR Act is not a rehearing of the matter, but rather, it is a review of the decision and the decision-making process.  The purpose of such an appeal is to have the Commission decide whether the decision appealed against was fair and reasonable. 

[12]	In keeping with the nature of a review of a decision, findings made by a decision maker which are reasonably open on the relevant material or evidence should not be disturbed on appeal even where the Commission might have decided the matter differently.

What decisions can the Commission make?

[13]	In deciding an appeal under Chapter 11, s 562C of the IR Act relevantly provides that the Commission may:

a.	Confirm the decision appealed against; or

b.	Set the decision aside and substitute for another decision; or

c.	Set the decision aside and return the matter to the decision maker for further consideration with directions.

The Commission’s discretion not to hear particular appeals

[14]	Section 562A of the IR Act provides the Commission with a discretion not to hear particular public sector appeals. That section relevantly provides:

562A	Commission may decide not to hear particular public service appeals
	...
	(3)	The commission may decide it will not hear a public service appeal against a decision if –
		(a)	the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
		(b)	the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal –
			(i)	is frivolous or vexatious; or
			(ii)	is misconceived or lacks substance; or
				(iii)	should not be heard for another compelling reason.
	
(Emphasis added)

[15]	Before the Commission can exercise the discretion found at s 562A of the IR Act, it must first allow an appellant an opportunity to make submissions as to whether they have an arguable case. Ms Scarff was advised of this at the mention on 18 June 2024 and she was afforded that opportunity at the hearing.

[16]	 For the reasons that follow, it is the view of the Commission that the appeal (in its current form) is misconceived. Further or alternatively, there are additional compelling reasons not to hear Ms Scarff’s appeal.

Consideration

[17]	In order to explain the conclusions reached by the Commission it is necessary to briefly consider the grounds of appeal set out in Ms Scarff’s Appeal Notice and her submissions filed on 20 May 2024. Additionally, it is necessary to briefly consider new grounds of appeal identified by Ms Scarff in her written submissions and also in her oral submissions at hearing. 

Ms Scarff’s substantive appeal is misconceived

[18]	The grounds set out in Ms Scarff’s Appeal Notice have been reproduced earlier in these reasons. Consideration of these grounds prompted the Commission to form its preliminary view that the appeal was misconceived.  

[19]	Of the three grounds identified, it is apparent that grounds 1 and 2 are essentially one ground. Ms Scarff properly conceded this at the hearing. 

[20]	Ground 1 contends that the selection process focused on Ms Scarff’s interview. The particulars accompanying this ground are set out in what is described as Ground 2, namely, that the feedback from the panel chair was that Ms Scarff was (in the opinion of the panel) not able to project herself into the role. Ms Scarff contends that this conclusion could not have been reached because it is in direct conflict with an accreditation process that Ms Scarff had successfully undertaken previously through the Queensland College of Teachers. 

[21]	With the greatest of respect to Ms Scarff, this pleading makes no sense. Further, the opportunity to explain it in written submissions did not assist. As best as could be gleaned from the material and her oral submissions, the proposition that there was undue focus on the interview appears to arise from the lack of reference in the disclosed interview notes to matters Ms Scarff contends she spoke about. Additionally, it seems Ms Scarff felt she was better qualified in terms of experience and credentials, and (presumably) it is therefore unfair to judge her on her interview.

[22]	At the hearing of this matter there was an opportunity for Ms Scarff to explain this ground of appeal further. It was put to her that the Commission’s jurisdiction is limited to a review of the decision, and it cannot conduct a rehearing of the merits of the decision. In this context, Ms Scarff was asked how the Commission might have power to disturb the findings of the panel if the panel had formed these views about her at interview. 

[23]	In response, Ms Scarff appeared to rely on the fact that she had read from notes at her interview and (in her view) the contents of her notes confirmed that she spoke about e.g., she ‘engaged with the community’ that (she says) proves the panel could not have reached the conclusions it did. In other words, Ms Scarff contends her notes represent a complete and accurate summary of what was said at the interview. 

[24]	This submission demonstrates how Ms Scarff misunderstands the nature of a review conducted pursuant to s 562B. Apart from making the boldly ambitious assertion that the opinion of her interview performance collectively reached by three panel members must be wrong, the only way for Ms Scarff to properly prove or test her assertion would be through the calling of evidence as to what was said (or not said) at interview, and what conclusions were then open to the decision makers. This would amount to a quintessential review of the merit of the decision.

[25]	The opinions of the three decision makers are plainly recorded in the interview notes that are exhibited to the respondent’s submissions. Opinions of that type are invariably arrived at through some degree of individual perception of the interviewer. In interviews of this nature, the potential for bias or unfairness that might arise from reliance on a subjective perception of an interviewer is overcome by empanelling multiple interviewers who serve to moderate any individual bias. 

[26]	The decision sought to be reviewed in this appeal is a product of that process. In the absence of some extraordinary factual discrepancy, such a decision is not amenable to challenge through review of the type contemplated by s 562C of the IR Act.    

[27]	Grounds 1 & 2 are plainly misconceived.

[28]	The third ground is that the decision is ‘unethical’ because the successful applicant for the 12-month appointment was absent on Long Service Leave (‘LSL’) for the entirety of term 2 of the school year. There is no dispute that the successful candidate took LSL during term 2. Beyond that, Ms Scarff has no direct knowledge as to how much notice of this leave was actually given, or to what extent (if any) the notice period was varied from the usual requirement of 2 months. But in any event, the fact that the successful candidate was on leave for approximately 25 percent of the 12-month appointment does not, of itself, objectively give rise to a conclusion the decision was not fair and reasonable. 

[29]	One can appreciate why this scenario might be a source of frustration and dissatisfaction to Ms Scarff. Ms Scarff impresses as being very passionate about her work. It is not hard to appreciate that the interruption to the role after only one term would seem unfair to an unsuccessful candidate like Ms Scarff who, undoubtedly, would have dedicated herself to it for the full 12 months. 

[30]	The respondent, referring to the protections found at Chapter 8 of the IR Act,  contends that it would be improper to exclude a candidate for such an appointment merely because they intended to exercise a workplace right to take LSL. While the Commission does not entirely accept this submission, it is sufficiently arguable such that it is not difficult to appreciate that such an approach to recruitment would inevitably attract controversy and disputation.

[31]	The role is for a fixed period of 12 months. One would expect that, given the short-term nature of the appointment, suitability for the role would include availability to perform it for the entire period. In that sense the Commission can appreciate why Ms Scarff is reacting to what the Commission regards as a certain incongruity to the decision on these facts. But the circumstances in this matter do not make the decision ‘unethical’ or otherwise render it objectively unfair. Further, a review of a decision in a public service appeal does not allow the Commission to disturb a decision simply because it disagrees. The Commission’s task is to determine if the decision was fair and reasonable. 

[32]	In this case, the suitability of the candidates was measured against a number of metrics, including written applications, interviews, and reference checks. There is no evidence to suggest that the prospect of pre-approved LSL in term two was or should have been sufficient to displace all the other attributes giving rise to the successful candidate’s suitability. 

[33]	While the Commission appreciates there are certain inefficiencies accompanying the decision in this regard, there is no objective evidence to support a conclusion that the decision was anything other than fair and reasonable. It follows that the Commission considers ground 3 of the appeal to also be misconceived.

Additional appeal grounds

[34]	Ms Scarff raised additional appeal grounds after filing her appeal. In her written submission she alluded to potential adverse bias from one of the panel members. While it was not entirely clear in her written submissions, at the hearing of this matter Ms Scarff appeared to explain that, at some time prior to her application for the role, she had attended a meeting that included the panel member in question. Ms Scarff and the panel member apparently disagreed about something. Ms Scarff contends that this may have given rise to adverse bias during the interview. 

[35]	Ms Scarff was asked why this was not pleaded as a basis for her appeal. Ms Scarff responded that she did not feel she had sufficient evidence to support her suspicion. She is correct about that. While the Commission can well appreciate the premise for Ms Scarff’s suspicion, it is the type of assertion that would require compelling evidence in order to attract any consideration by the Commission. In the absence of that, the assertion is an unsupported suspicion and ultimately misconceived. 

[36]	Further, at the hearing of this matter Ms Scarff (for the first time) asserted that the interview panel were averse to her due to a conflict of interest. Ms Scarff informed the Commission that each panel member disclosed a professional relationship with the successful candidate and recorded they had either a ‘potential conflict’ or a ‘perceived conflict’. This assertion was not disputed by the respondent. Such declarations are a routine requirement for such interview panels.  

[37]	In order for these new allegations of conflict to properly be included in this appeal, Ms Scarff would require leave to amend her Appeal Notice and leave to file further submissions. Additionally, the respondent would then have to be permitted to file its own amended submissions. A timetable for those amendments to be put before the Commission would extend the conduct of this matter out by at least a further 8 weeks. For the reasons that follow, the Commission is not prepared to consider any amendment to this appeal.

Compelling reason not to hear the appeal

[38]	Section 562A(3)(b)(iii) of the IR Act provides that the Commission may decline to hear an appeal for ‘another compelling reason’.  The word ‘compelling’ is defined in the Macquarie Dictionary as “demanding attention or interest”.

[39]	The term ‘compelling’ is used in s 562A(3)(b)(iii) separately and distinctly from the terms set out in s 562A(3)(b)(i) and (ii) including e.g., ‘misconceived’ which broadly covers circumstances where the grounds of an appeal are mistaken or flawed. The separate reference to a ‘compelling’ reason in s 562A of the IR Act suggests that it can include circumstances broader than the multiple flawed premises for an appeal described in the first two parts of s 562A(3)(b). In this context, the term ‘compelling’ reason contemplates a scenario where the Commission may refuse an appellant an opportunity to have their appeal heard even though its merits are objectively appreciable.

[40]	The role that is the subject of this appeal is a 12-month appointment. 6 months of that appointment have already passed. There is no evidence from either party that the role will continue beyond its 12-month expiration date. 

[41]	In the event that the Commission were to hear and uphold Ms Scarff’s appeal as currently pleaded, there are no circumstances where the Commission as currently constituted would feel confident in making a substituted order awarding the role to Ms Scarff.  The only proper remedy on a successful petition by Ms Scarff would be to return the matter to the decision maker and direct that a new recruitment process be undertaken. At the hearing of this matter all parties agreed that such a process would take anywhere between 2 – 3 months. That period of time would consume the entirety of term 3, notwithstanding unforeseen delays or other appeals. 

[42]	Even if the pleaded grounds of Ms Scarff’s appeal were not misconceived, one would have to question the utility of disturbing a decision for which the complained of effects would be all but expired by the time of final resolution of the appeal. Ms Scarff said in response to this observation by the Commission that she seeks to establish a precedent to protect others against the same adverse outcome. There is nothing about the circumstances of this appeal that is anything but unique to Ms Scarff. There is no precedent value in this appeal. 

[43]	In addition, or in the alternative to the Commission’s finding that the pleaded grounds of appeal are misconceived, these circumstances give rise to a compelling reason not to hear the appeal. Given the time remaining before the conclusion of the contested appointment, and the time required to deal with the appeal (in its current form) on a ‘best case scenario’ for Ms Scarff, there is no utility in the exercise.
  
[44]	In the view of the Commission, even putting to one side the obvious misconceptions attending the appeal as currently pleaded, the patent lack of utility in dealing with it cannot be ignored, and it is a compelling reason not to hear it. 

[45]	Further, with respect to the new grounds identified by Ms Scarff at hearing (namely the alleged conflict of interest affecting the panel members) it cannot be said that those grounds are of no interest of the Commission. At the hearing of this matter there was some discussion about the comparable appeal grounds set out in the decision of Wyer v State of Qld (Department of Education) (‘Wyer’). In Wyer, the appeal was upheld by the Commission as currently constituted and the matter was returned to the decision maker to commence a new recruitment process. However, there is a significant distinguishing factor between Wyer and Ms Scarff’s recent allegations of conflict. 

[46]	In Wyer (as in this appeal) the appellant also contended that the successful applicant was unsuitable for the appointment. However, in support of that submission in Wyer, the appellant relied on a documented grievance he had lodged that was co-signed by four of his colleagues. The details of the concerns expressed in the grievance were lengthy, well particularised and in some respects, serious. While Ms Scarff points to certain alleged deficiencies in the experience of the successful candidate in this matter, the allegations are significantly less compelling than the evidence submitted in Wyer. 

[47]	Notwithstanding that distinction in these two matters, had the appointment in this matter been permanent or for a more significant period, the Commission might have been inclined to allow amendment of the appeal to include those allegations and to hear the substantive appeal. A declaration of potential or perceived conflict by all three members of an interview panel, while not of itself  cause for concern, is certainly worthy of close attention where it is a material fact in an appeal alleging unfairness. 

[48]	But in the circumstances of this appeal, there are more compelling considerations that outweigh the importance of allowing Ms Scarff to be heard on her concerns. Consideration of whether a reason is sufficiently ‘compelling’ within the meaning of s 562A of the IR Act will, at times, require the Commission to balance the importance for an appellant having their matter heard, as against the utility of hearing it. The discretion of the Commission granted by s 562A to not hear an appeal may be exercised even where its arguable merits are clear.

[49]	In this case, for all of the reasons already stated, a delay to allow amendments addressing the new grounds of appeal would consume most (if not all) of Term 3. Only then would the Commission be able to proceed to deal with the appeal which, even if dealt with expeditiously, would likely impact part of Term 4. Given the appointment that is the subject of the appeal will expire at the conclusion of Term 4, there is a patent lack of utility in undertaking the exercise of hearing the appeal. For this compelling reason the appeal will not be heard. 

[50]	To be clear, the Commission understands why Ms Scarff holds her concerns but makes no findings about their veracity. It is not the case that the Commission is dismissing those concerns. But in all of the circumstances, for the reasons given, the benefit to Ms Scarff that might be available in allowing her to pursue those concerns through this appeal is outweighed by the lack of any useful outcome that can be delivered in doing so.

Order

[51]	In all of the circumstances, it is ordered:

Pursuant to s 562A(3)(b)(ii) and (iii) of the Industrial Relations Act 2016 (Qld) the Commission declines to hear the appeal.