QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

PARTIES:	
	Sane v State of Queensland (Department of Health) [2021] QIRC 270

Sane, Vrunda
(Appellant)

v

State of Queensland (Department of Health) 
(Respondent)
	
CASE NO:
	PSA/2021/191
	
PROCEEDING:
	Public Service Appeal – Promotion decision
	
DELIVERED ON:
	 5 August 2021 	
MEMBER:

HEARD AT:	Pidgeon IC

On the papers
	
ORDER: 	The appeal is dismissed. 	
CATCHWORDS:	PUBLIC SERVICE – classification, promotion or transfer – jurisdictional objection – whether the decision can be appealed against – whether the appointee was a permanent employee prior to appointment
	
LEGISLATION:	Public Service Act 2008 (Qld)

Appeals Directive 07/20

Recruitment and Selection Directive 12/20
	
Reasons for Decision

[1]	Ms Vrunda Sane is permanently employed by the State of Queensland (Queensland Health) (the Department) as a Genetic Counsellor (HP3) at Metro North Hospital and Health Service (MNHHS).  When two permanent and one contract HP4 Senior Genetic Counsellor positions were advertised, Ms Sane applied for these positions.  Ms Sane was not shortlisted for interview and her application was unsuccessful.  

[2]	Following the recruitment and selection process, the top three merit listed candidates were appointed to the three positions.  In order, they were Carol-Ann Verrenkamp, Lindsay Fowles and Belinda Creighton. 

[3]	Ms Sane received an email on 11 May 2021 notifying who the successful candidates were.  Ms Sane lodged an appeal against a promotion on 25 May 2021.

[4]	The grounds for appeal relied on by Ms Sane as summarised from her appeal notice are that: 

•	After knowing who the successful candidate was, Ms Sane found that the feedback given to her was inconsistent;

•	after being informed on 31 March 2021 that her application was unsuccessful, Ms Sane sought feedback from the Principal Genetic Counsellor (and Panel member) Lauren Hunt;

•	Ms Hunt provided some feedback regarding Ms Sane's application;

•	when the final outcome of the process was communicated and one of the successful candidates was Carol-Ann Verrenkamp, Ms Sane was upset, as Ms Verrenkamp is a genetic counsellor with less experience in length of years as well as in breadth of work than Ms Sane.  

Submissions - Jurisdiction

[5]	Section 194 of the Public Service Act 2008 ("the PS Act") lists various categories of decisions against which an appeal may be made. Section 194(1)(c) of the PS Act provides that an appeal may be made against a decision to promote a public service officer ("a promotion decision"). 

[6]	The Department objects to Ms Sane's appeal on the basis that the Commission does not have jurisdiction to hear the appeal.  

[7]	Firstly, the Department contends that the Commission does not have jurisdiction on the basis that the decision is not a promotion decision. 

[8]	The Department submits that of the three successful candidates, only one is a public service employee who was 'promoted'.  The Gazette published the promotion of Dr Lindsay Fowles, one of two applicants offered a permanent appointment as a result of the selection process associated with vacancy RBH366358.

[9]	The Appellant seeks to make out their case on the basis of comparison of self by way of qualifications and years of experience versus what Ms Sane believes is the qualifications and years of experience possessed by the other external non-promotional appointee, Ms Verrenkamp. 

[10]	Ms Sane does not appear to make reference to the promoted officer (Dr Fowles) in her grounds for appeal and the Department submit the promotion of Dr Fowles is the only appealable decision.

[11]	Specifically, the Respondent submits that the decision Ms Sane seeks to appeal relates not to a promotion decision but to a decision to recruit or select a public service employee, and pursuant to s 195(3A)(c) of the PS Act, Ms Sane may not appeal such a decision. 

[12]	In her reply submissions, Ms Sane says:

…I note that the selection procedure followed was robust and met regulations outlined by MNHSS.  I also agree that my esteemed colleagues – Lauren, Linda and Dr Megan – made a highly qualified and experienced selection panel. As it is noted correctly, I do not have any objections to recruitment of Dr Lindsay Fowles either.

[13]	Having apparently conceded that she is not appealing against the promotion of a public service officer, Ms Sane goes on to say, 

However, the respondent's submission has not addressed any of the concerns I had raised in my promotion's appeal filed on 25 May 2021.  I had raised inconsistencies in the criteria used for shortlisting as well as the feedback that was provided to me.
…
After considering the verbal feedback that I received from Principal Genetic Counsellor, Lauren, and having now reviewed the attached documentation, I strongly believe that my concerns are very valid and need to be reviewed further by the Industrial Relations Commission. 

Submissions – other matters

[14]	The Respondent submits that the recruitment and selection process was not deficient and upheld the Principles and procedural requirements set out in the Recruitment and Selection Directive 12/20 (the Recruitment Directive).

[15]	The Respondent's submissions also provided some background to the process itself which I will summarise here:

•	The advertisement included all requirements set out in cls 6.4 and 6.5 of the Recruitment Directive;

•	the process was highly competitive and attracted 13 candidates including eight State of Queensland employed practitioners vying for promotion and five external/interstate practitioners;

•	Ms Sane was one of eight officers seeking internal promotion;

•	the shortlisting methodology was directly derived from the role description and is detailed in the final selection report;

•	the shortlisting methodology specifically addressed cls 7.2 a, b, d and e of the Recruitment Directive;

•	the shortlisting results were recorded;

•	Ms Sane was one of seven applicants not shortlisted for interview and was advised of the shortlisting outcome on 31 March 2021 with the final process outcome and further invitation for feedback ultimately notified on 13 May 2021;

•	Ms Sane sought interim shortlisting feedback on 31 March 2021 but did not request further full and final post-selection feedback;

•	Following completion of pre-employment checks to satisfy cl 7.2(c) and cl 8 of the Directive, the three positions were offered in order of merit to the applicants;

•	the structure of the final selection report is standardised and ensures the requirements of cls 7.3, 7.5, 7.6, 7.7 and 7.8 of the Recruitment Directive have been upheld;

•	the selection panel comprised four highly qualified and experienced officers and was approved by the Authorised Delegate; and 

•	the final selection report provides the comprehensive comparative statements recorded by the selection panel.

[16]	The remainder of Ms Sane's final submissions relate to: 

•	The appointment of Ms Verrenkamp;

•	Ms Sane's concerns about not being shortlisted for the position; 

•	a comparison of her experience to that of Ms Verrenkamp; 

•	the informal verbal feedback she received before the conclusion of the recruitment and selection process;

•	her previous successful participation in an Expression of Interest process for an acting Senior Genetic Counsellor position;

•	the assessment of every candidates' voluntary contribution to Human Genetics Society of Australasia and Australasian Society of Genetic Counsellors;

•	her role in the private sector; and

•	concerns about pathways to progression for genetic counsellors working in Qld. 

[17]	The Respondent also replies to Ms Sane's submissions listed at [16]:

•	the feedback referenced by Ms Sane was received 'mid-process' and was a very informal discussion without planning or scheduling notice. Full and detailed feedback is offered at the conclusion of the selection process. 

•	The previous expression of interest Ms Sane refers to was for a temporary appointment and involved a limited applicant pool in comparison to the pool applying for the two permanent positions.

•	The assessment of candidates is normative; that is, compared to the job description and comparatively; that is, to each other, so as to establish relative merit. 

•	Ms Sane's application outlined her public and private work and the panel was aware of her work range at the time of shortlisting.
 
[18]	The Respondent maintains that the appointment of Ms Verrenkamp is a non-appealable decision and that the only appealable appointee is Dr Lindsay Fowles.

Relevant Legislative Provisions

[19]	Section 194 of the PS Act sets out decisions against which appeals may be made.:

194      Decisions against which appeals may be made

(1)	An appeal may be made against the following decisions—

…

(c) 	a decision to promote a public service officer (a "promotion decision");

…
[20]	Section 195 of the PS Act relevantly provides:

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

…
	
[21]	Relevant clauses of the Appeals Directive 07/20 (Appeal Directive):

5.	Who may lodge a public service appeal

5.1	A public service employee who is listed in section 196 of the PS Act (Appendix A) or is eligible to appeal by reason of section 55 of the PS Act, may lodge a public service appeal.

5.2	An appeal may only be lodged by the following persons: 

…
(e)	for a decision under section 194(1)(c) of the PS Act (promotion decision)—a tenured general employee or public service officer aggrieved by the decision (an aggrieved officer), provided the following conditions are met:

(i)	the decision relates to the gazetted promotion of a public service officer or tenured general employee
(ii)	the aggrieved officer’s application to the role being appealed was received on or before the deadline for the receipt of applications or in the case of continuous applicant pools, the application was received prior to the date of distribution to the selection panel for the relevant promotion
		…
7.	Decisions that cannot be appealed 

7.1	Decisions listed in section 195 of the PS Act (Appendix C) cannot be appealed.

7.2	Section 195(1)(k) of the PS Act states that non-appealable appointments cannot be appealed. A non-appealable appointment is an appointment: 

(a)	that is not a promotion

Consideration

Jurisdiction

[22]	The submissions before me clearly indicate that Ms Sane is aggrieved by the decision to appoint Carol-Ann Verrankamp to one of the two permanent HP4 positions.  Ms Verrankamp was not a public servant prior to appointment and therefore her appointment is not a promotion.  

[23]	The Commission does not have jurisdiction to hear an appeal against the appointment of Ms Verrankamp as the appointment was via a recruitment and selection process and therefore it is not appealable under s 195(3A)(c) of the PS Act.

[24]	Having reviewed all submissions, I have some concern as to whether Ms Sane is a person who may lodge the appeal as it seems she does not meet the condition set out at cl 5.2(e)(iii) of the Appeals Directive in that she did not seek post-selection feedback and appears to have relied on the interim informal feedback she sought after not being shortlisted.  However, the Respondent did not raise this as a jurisdictional concern and Ms Sane did not address it in her submissions.  I determined not to hold up the process by seeking further submissions on that particular point as it would not have a material impact on the outcome of this appeal in any case. 

The Promotion decision subject of this appeal

[25]	I then turn to the appointment of Dr Lindsay Fowles, the promotion decision which was gazetted on Friday 28 May 2021.   The appointment of Dr Fowles is a promotion decision capable of being appealed and is within the jurisdiction of the Commission.

[26]	An appeal against the decision to promote a public service officer must be supported by grounds of appeal addressing why the promotion was not fair and reasonable.

[27]	However, the appointment of Dr Fowles is not mentioned in Ms Sane's reasons for appeal.  Further to this, Ms Sane's submissions clearly state that she does not have any objections to the promotion of Dr Fowles. 

[28]	Additionally, Ms Sane states that she believes 'the selection procedure followed was robust and met regulations outlined by MNHSS'.

[29]	For completeness, I note that I have reviewed all of the selection materials provided by the Department and considered them in the context of the relevant Directive.  The materials confirm that the process was conducted as required.  There is nothing before me which could serve to disturb the promotion of the public service officer.

[30]	In circumstances where Ms Sane does not raise any grounds upon which the selection of Dr Fowles was deficient or why the appointment was not fair and reasonable, I find that her appeal must fail. 

[31]	For the forgoing reasons, I order that the promotion decision appealed against is confirmed.