QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Fritz v State of Queensland (Queensland Health) [2021] QIRC 089

PARTIES:	

	Fritz, Catherine 
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent) 
	
CASE NO:
	PSA/2020/380
	
PROCEEDING:
	Public Service Appeal – Fair Treatment Decision	
DELIVERED ON:	22 March 2021	
		
MEMBER:
	Power IC

ORDER:
	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
	
CATCHWORDS:	INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – fair treatment appeal pursuant to s 194(1)(eb) of the Public Service Act 2008 –– whether the decision was fair and reasonable
	
LEGISLATION:	Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), s 194(1)(eb) 	
		
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (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]	Ms Catherine Fritz (the Appellant) appeals a decision of the State of Queensland (Queensland Health), specifically, the North West Hospital and Health Service (NWHHS, the Respondent) with respect to the appointment process associated with a position for which the Appellant had applied. 

[2]	A permanent full-time position of Nurse grade 7 (NG7), Clinical Nurse Consultant (CNC), Infection Prevention and Control (the position) within the NWHHS was advertised in April 2020, with a total of four applications received. Interviews were offered to three applicants, one of whom withdrew their application by not presenting for interview. 

[3]	Two applicants were interviewed and assessed after which the applicant that was deemed suitable for appointment was offered the position. The successful applicant declined the offer, and the subsequent process became the subject of the Appellant's grievance. The grievance was not resolved and consequently, the Appellant filed a public service appeal with respect to a fair treatment decision (fair treatment appeal) pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld). 

Appeal Principles

[4]	Section 562B(1) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.

[5]	The appeal must be decided by reviewing the decision appealed against. Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision‑making process associated therewith.

[6]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination is whether the decision by the Respondent to not follow the merit list to appoint an applicant to the position was fair and reasonable in all of the circumstances. 

What decisions can the Industrial Commissioner make?

[7]	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 substitute another decision; or

(c)	set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

[8]	 The Appellant outlined the following grounds of appeal in the Appeal Notice:

•	the decision not to use the merit list to fill the position was made to avoid appointing her and is unfair and prejudicial; and

•	that this is further demonstrated by the failure to respond to a grievance lodged on 23 October 2020 and the decision to proceed to recruit a modified role that incorporates the Infection Control functions despite a grievance being lodged. 
	
Submissions

[9]	The Commission issued a Directions Order calling for submissions from both parties following receipt of the Appeal Notice. 

	Appellant's submissions

[10]	The Appellant filed submissions in support of the Appeal which are summarised as follows:

•	the Appellant applied for the position in April 2020 and was advised by telephone in May 2020 that she was unsuccessful following which the Appellant sought feedback;

•	an appointment was made for verbal feedback on 11 June 2020. During that phone discussion with the Panel Chair, Ms Melinda Duncan, the Appellant submits that she was advised, after specifically asking, that she was merit listed and was placed second on the merit list;

•	whilst on leave during the week of 24 August 2020, the Appellant was informed by a former colleague that the preferred applicant had not commenced and had declined the position;

•	on 10 September 2020, the Appellant contacted Ms Duncan by email regarding the information she had received and sought advice in respect of the process to now fill the vacancy. No reply was received to this email, and on 29 September 2020 the Appellant sent a reminder email;

•	as a merit listed applicant, the Appellant assumed she would be considered appointable (particularly since the Appellant had substantively held the position for almost four years until March 2019) and based on the clear intent to fill the vacancy, anticipated being made an offer of appointment following the preferred applicant's withdrawal;

•	the Appellant received no reply and sent a further email on 9 October 2020, prior to commencing three weeks of annual leave;

•	on 9 October 2020, the Appellant was advised by Ms Duncan that the position was to be readvertised 'in the new year' and did not respond to the question regarding the merit list;

•	on the same day, the Appellant emailed Ms Duncan to advise that she was aggrieved by the decision not to use the merit list to fill the vacancy. On 23 October 2020, the Appellant lodged a local grievance in relation to this process with Dr Karen Murphy, the Acting Chief Executive;

•	the Appellant received no response to her grievance and sent a reminder email following her return from leave on 2 November 2020. Mr Peter Patmore, Acting Executive Director People, Culture and Planning, replied on the same day that both emails had been received and that he had been given carriage of the matter on behalf of the NWHHS. Mr Patmore also said that he had conducted an initial review of the process and would respond "asap (hopefully this week)";

•	the Appellant did not receive any further correspondence from Mr Patmore in relation to the matter despite sending reminder emails on 13 November 2020 and 20 November 2020;

•	on 1 December 2020, the Appellant discovered that NWHHS had advertised a NG7 Manager/Nurse Manager, HealthCare Standards Unit role which incorporates the Infection Control functions within a broader set of role functions related to health care standards and patient safety. Ms Duncan had not advised the Appellant that the position was being reviewed or that it would be advertised earlier than she had indicated in October;

•	during the time that the Appellant held a CNC, Infection Prevention and Control role in NWHHS, she was not subject to any performance improvement or disciplinary actions. The fact that the Appellant was merit listed indicated to her that she was considered suitable to be appointed;

•	it appeared to the Appellant that when the preferred applicant declined the position, the chair and delegate had finalised the process without reference to any other appointable applicants on the merit list. The Appellant believes that this process is flawed and that the purpose of generating a merit list is to identify all of the potential appointable applicants to provide next best choices should the preferred applicant decline or withdraw; and

•	the Appellant believes that the decision not to use the merit list was also made to deliberately avoid appointing her to the position. The Appellant submits that if the Panel and/or Chair had concerns about her capacity to fill the position, was not discussed with her and she was not afforded an opportunity to respond to any concerns. 

Respondent's submissions

[11]	The Respondent provided submissions which are summarised below:
 
•	in its Selection Report, the Selection Panel summarised the relative merits of each applicant in the following manner:

Melissa Chifley – Demonstrated the knowledge and clinical skills required to fulfil the requirements of the infection prevention and control position. She was able to apply relevant and current evidence-based practice to the interview scenarios. Melissa demonstrated knowledge of the NSQHS standards and accreditation requirements specifically related to infection prevention and control. Melissa also demonstrated a keen interest and ability to facilitate adult learning across the infection prevention and control standard, applying control theory, strategies and evaluation.

Cathy Fritz – Although Cathy has previous experience in infection Prevention and Control, she was unable to demonstrate the high-level skill or knowledge required for a Nurse Manager position. Cathy was unable to articulate a vision for the position which aligned to the values and strategic plan of the NWHHS.

•	based on its assessment of the relative merits of each applicant, the Selection Panel concluded that Ms Chifley should be recommended for appointment to the position;

•	the Selection Panel did not recommend that any other applicant should be appointed to the position, should the successful applicant decline an offer of employment. The Selection Panel did not establish an order of merit for appointment to the position and Ms Chifley was the only applicant recommended for appointment;

•	the Selection Report was approved by the Executive Director, Nursing and Midwifery and Clinical Governance, as delegate, on 7 July 2020;

•	the position was subsequently offered to Ms Chifley who decided to decline the offer of appointment and the position remains substantively vacant;

•	based on the Selection Panel's assessment that no other applicants were suitable for appointment via this formal selection process, there was no further consideration of other applicants for appointment via this selection process following Ms Chifley's decision to decline the offer of employment;

•	as an interim measure, the NWHHS made a temporary appointment to the position up to 31 July 2021;

•	the NWHHS is currently reviewing this position. The COVID-19 Pandemic and the lessons learned during the health services response efforts coupled with the requirement for the Infection Prevention and Control team to take on the water risk management portfolio, has resulted in a decision being made to review the position and its role, responsibilities and accountabilities prior to advertising;

•	it is anticipated that the position will undergo significant change to take into consideration the above and of the ongoing and projected needs of the NWHHS and its communities;

•	once the review process is finalised, it is anticipated the position will be advertised later in the year in accordance with the Government's Responsible Workforce Management processes; 

•	the Appellant does not allege the selection process was flawed or that Ms Chifley was not the most meritorious applicant for the position. The NWHHS is unaware of any concerns raised by the Appellant relating to either the selection process or the outcome of that process;

•	the Appellant acknowledges in her submissions that she was advised in May 2020 that she was unsuccessful in her application and that she was provided with feedback in relation to her application and interview from Ms Duncan, on 11 June 2020 (which was prior to the Selection Report being approved by the delegate on 7 July 2020). At that point, the NWHHS understood this recruitment and selection process was finalised;

•	the Respondent submits that it is noteworthy that the Appellant contends she was advised by Ms Duncan during their discussions in May and June 2020 that she had been merit listed for appointment to the position and on that basis she appears to argue she is entitled to be offered appointment to the position;

•	Ms Duncan however advised this is not her recollection of that discussion and she has since confirmed in an email that she had advised the Appellant that 'pending further pre-employment cheques and delegate approval, she had merited 2'. The NWHHS understands from Ms Duncan this meant that the Appellant was the second rated applicant from the selection process rather than a second applicant assessed as meeting the requirements of the position;

•	the Appellant has also expressed concern that, since raising this matter formally with the Acting Health Service Chief Executive, NWHHS, on 23 October 2020, she had not received a formal response from the NWHHS in relation to her concerns;

•	the NWHHS submits the recruitment and selection process conducted to appoint to the position was consistent with the legislative and policy frameworks that govern such processes;

•	a properly constituted Selection Panel was formed, all applications received were assessed on merit against the requirements of the role and a suitable applicant was identified for appointment. There has been no challenge by the Appellant in relation to the process followed to determine the successful applicant in her appeal;

•	the Appellant's core concern appears to be that following the decision of the successful applicant to decline the offer of appointment to the position, she should have been offered appointment to the position. The NWHHS submits that:

(a)	as evidenced by the Selection Report approved by the delegate on 7 July 2020, the Appellant was not assessed as suitable for appointment to the role based on her application and interview and feedback was provided to her in relation to this assessment;

(b)	there was no merit list established arising from this selection process and only the successful applicant, Ms Chifley, was assessed as suitable for appointment; and

(c)	even if a merit list was established by the Selection Panel and approved by a delegate, there is no legislative or policy obligation for the NWHHS to appoint from that merit list should the successful applicant decline appointment to the position;

•	the Queensland Health Human Resources Policy – Recruitment and Selection (B1) provides clear instruction in relation to orders of merit. Section 12.1 of the Policy states that '[t]here is no obligation to use the order of merit for future appointments';

•	in relation to the Appellant's concerns that the NWHHS had advertised the role of Manager/Nurse Manager HealthCare Standards Unit; the NWHHS confirms this role is a different role and was formerly titled Nurse Manager, Health Data and Variation. The position was restructured and has since been advertised and substantively filled. However, it is an entirely different role to the one which the Appellant is seeking appointment and, as such, has no relevance to this Appeal process;

•	the position remains substantively vacant, and through lessons learned during the management of the COVID-19 response and other emerging issues with the health service the role will be reviewed and modified to reflect the current needs of the NWHHS prior to being advertised; and

•	it is acknowledged that the NWHHS failed to provide the Appellant with a timely response to the concerns she raised in her correspondence to the Acting Health Service Chief Executive on 23 October 2020. This is regrettable and the NWHHS apologises to the Appellant for the delay in responding to her complaint. It is acknowledged an earlier response may have circumvented the need for this matter to be referred to the Commission. 

	Appellant's submissions in reply

[12]	The Appellant made the following submissions in reply:

•	the Appellant's submission that Ms Duncan advised her that she was merit listed as the second most meritorious application is supported by the Respondent's submission that Ms Duncan advised her 'she had advised Ms Fritz that pending further pre-employment checks and delegate approval, she had merited 2';

•	the assertion that Ms Duncan meant to convey that the Appellant was the second applicant to be assessed is improbable. The Appellant attended recruitment and selection training which covered the use of the merit list and suggests that Ms Duncan would likely have attended this training and should therefore have understood the concept of a merit list;

•	the Appellant's view is that the statement that she was unsuccessful pending pre-employment checks and delegate approval reinforces the principle that the Appellant is 'next in line' should those pre-employment processes result in the preferred applicant being found unsuitable;

•	the Respondent's assertion that the Appellant's failure to dispute the selection decision to appoint Ms Chifley points to the Appellant's acceptance of that decision. The Appellant submits that this is because she believed that she had been merit listed;

•	the Appellant had not been advised during any feedback discussion that she was not merit listed, nor that her performance at interview resulted in her being deemed unsuited to be appointed;

•	the Appellant has been a registered nurse for 35 years and has held roles as a CNC for the better part of 20 years. Ten years of this has been as a CNC, Infection Prevention and Control, across two Queensland Health jurisdictions. The Appellant was the previous substantive holder of the position having left it for personal reasons in early 2019. No feedback was received by the Appellant indicating that her performance was anything less than exemplary;

•	had the Appellant been advised that she had failed to demonstrate suitability for appointment, it is submitted that she would have taken action to dispute that finding within the required timeframe; and

•	Ms Duncan and Mr Patmore failed to correct the Appellant's apparent misinformation when she made the enquiry and lodged her grievance on 29 September 2020, 9 October 2020 and 2 November 2020. 

Consideration

[13]	As indicated above, the purpose of this Appeal is to determine whether the Respondent's decision was fair and reasonable. The difficulty with this matter is that the Respondent did not engage with the grievance procedure as required in the Human Resources Grievance Resolution Policy (E12). This Policy provides broadly for a stage 1 local decision, a stage 2 formal grievance and finally recourse through a dispute notification to the Queensland Industrial Relations Commission. I note that the Appellant has also chosen not to escalate the matter through a dispute notification as outlined in the Policy and instead filed a fair treatment appeal. 

[14]	Although the Policy was not utilised, I see no utility in having this matter sent back to the Respondent for a formal decision as the information provided in the submissions outline the reasons for the decisions taken with respect to the recruitment, selection, and subsequent advertising of the position. I am satisfied that the Appellant has had an opportunity to respond to the matters raised in those submissions. 

[15]	In reliance upon the Appellant's grounds of appeal outlined in the Appeal Notice, the decision to be reviewed is the decision by the Respondent to not use the merit list to appoint to the position for which the Appellant had applied. 

[16]	It appears that the Appellant does not challenge the process of recruitment up until the point at which the successful applicant declined to accept the position. It seems that a valid process was followed in that applications received were assessed on merit against the requirements of the position; a properly constituted Selection Panel conducted interviews; and a suitable applicant was identified for appointment. 

[17]	The focus of the Appellant's concern appears to lie in the decision by the Respondent not to offer the position to the applicant listed as second on the order of merit, and instead reformulate the position prior to advertising. 

[18]	The Appellant submits that she was advised by Ms Duncan in the feedback meeting that the Appellant had been placed second on the merit list. However, the excerpt from Ms Duncan's notes from the feedback meeting support the Respondent's submission that Ms Duncan had not told the Appellant that she had been listed as second in the order of merit. 

[19]	Ms Duncan advised the Appellant that 'pending further pre-employment checks and delegate approval, she had merited 2'. The Respondent submits that Ms Duncan meant that the Appellant was the second rated applicant from the selection process rather than a second applicant assessed as meeting the requirements of the position. 

[20]	Whilst this may not have been Ms Duncan's intention, it is entirely understandable that the Appellant interpreted Ms Duncan's statement as confirming that the Appellant was listed as second on a merit list. 

[21]	Although the unclear communication from the Respondent resulted in the Appellant believing that she had been placed second on the merit list, it is clear from the Selection Report that this was never the case. Of the two applicants interviewed, Ms Chifley is the first applicant listed and the Appellant is listed second. However, the 'Order of merit' section only lists one candidate as suitable for appointment, that being Ms Chifley.

[22]	I accept that the Appellant was not merit listed following the recruitment process, based on the findings in the Selection Report. This should have been communicated clearly to the Appellant when feedback was provided such that no ambiguity could arise at a later point. 

[23]	It is, however, my view that even if the Appellant had been merit listed, the Respondent was not obliged to appoint from that merit list in the event that the successful applicant declined to accept the appointment. The Respondent submits that, as a consequence of learnings from COVID-19 and other emerging issues within the NWHHS, the position will be reviewed and modified prior to being advertised. There may be different requirements for the modified position and as such, it would not be appropriate to use a merit list associated with a different position. This decision by the Respondent was entirely reasonable. 

[24]	I note the Respondent's submission that the position that the Appellant referred to as being a re-structure of the original position (Manager/Nurse Manager, HealthCare Standards Unit) was an entirely different role to the one to which the Appellant sought appointment and as such is not relevant to this appeal. 

[25]	Notwithstanding my decision that the Respondent's decision was fair and reasonable, I recognise that the Appellant has been compelled to escalate this matter to an appeal primarily because of the failure of the Respondent to address her grievance as required by the relevant policy. I note that the NWHHS has acknowledged that they failed to provide the Appellant with a timely response to the concerns raised in her correspondence to them. The Respondent submits that it is regrettable and apologises to the Appellant for the delay in responding to her complaint. Indeed, a timely response to the Appellant's emails may have allowed this grievance to be resolved at a local level or following a formal review. 

[26]	In consideration of all the circumstances in this matter, I am satisfied that the recruitment and selection process was conducted in accordance with the Queensland Health Human Resources Policy – Recruitment and Selection (B1) and the decision to not use the merit list to appoint an applicant to the relevant position was fair and reasonable 

Order

[27]	I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.