QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Cervellin v State of Queensland (Department of Education) [2021] QIRC 401

PARTIES:	
	Cervellin, Samantha

(Appellant)

v

State of Queensland (Department of Education)
(Respondent)
	
CASE NO:
	PSA/2021/138
	
PROCEEDING:
	Public Service Appeal – Promotion Decision

DELIVERED ON:
	26 November 2021
	
MEMBER:

HEARD AT:	Knight IC

On the papers
Conference – 27 August 2021

ORDERS:
	1.	The appeal is allowed.
2.	The promotion decision is set aside.
3.	The issue is returned to the Department of Education with a copy of this decision.
4.	Within one month, the Chief Executive is to revoke the appointment of the successful applicants and publish a gazette notice that the appointments are revoked.
5.	A new selection panel is to be formed and it is to be provided with copies of:
(a)	Directive 12/20 Recruitment and selection; and
(b)	Sections 27 and 28 of the Public Service Act 2008 (Qld).
6.	The Chief Executive is to resume the recruitment and selection process for the position immediately after the selection of the three shortlisted applicants for interview.
	
CATCHWORDS:	PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a promotion decision under s 197 of the Public Service Act 2008 (Qld) – where the appellant unsuccessfully applied for a position – where the appellant was deemed third most meritorious – where another candidate was appointed – requirement to provide comparative merit assessment – decision not fair and reasonable – appeal allowed
	
LEGISLATION AND INSTRUMENTS:

	Code of Conduct for the Queensland Public Service cls 1.5(a), 1.5(b)

Directive 12/20 Recruitment and selection cl 7

Industrial Relations Act 2016 (Qld) ss 562B, 562C

Public Service Act 2008 (Qld) ss 27, 28, 197
	
CASES:	Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)
	
Reasons for Decision

[1]	Ms Samantha Cervellin is employed by the State of Queensland through the Department of Education ('the Department') as a Physiotherapist (HP3).
[2]	In early 2021, Ms Cervellin unsuccessfully applied for the position of Senior Advisor Physiotherapy (HP5) (Reference Number QLD/FNR/364256/21P) ('the HP5 role').
[3]	By appeal notice filed 16 April 2021, Ms Cervellin seeks to challenge the outcome of the recruitment and selection process under ch 7, pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). 
[4]	An appeal of this kind proceeds under ch 11, pt 6, div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein. Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.
[5]	For an appeal against a promotion decision under the PS Act, I must decide the appeal having regard to the evidence available to the decision-maker when the decision was made, but I may take into account other evidence if I consider it appropriate.
[6]	In my view, the decision was not fair and reasonable.
[7]	My reasons follow.
Background
[8]	Between 18 February 2021 and 4 March 2021, the Department advertised two vacancies for the HP5 role through the Queensland Government's SmartJobs and Careers notice board. One of the positions was to be appointed in the Far North Queensland Region, the other in the North Queensland Region. Applicants were asked to nominate their preferred region, with Ms Cervellin nominating the position in the North Queensland Region as her first preference.
[9]	Both vacancies were purportedly advertised and recruited according to the PS Act, Directive 12/20 Recruitment and selection ('the Directive') and the Department's own Recruitment and selection policy. A single recruitment process was undertaken with respect to both vacancies and consisted of the following selection tools:
(a)	a written response to the job reference (QLD/FNR/364256/21P) and selection criteria which was then assessed by the selection panel (shortlisting);
(b)	an interview conducted on or around 8 March 2021 through Microsoft Teams; and
(c)	referee reports on the most meritorious candidates.
[10]	There were only three applicants for both positions, including Ms Cervellin. All three were shortlisted on the basis of their respective written applications. Interviews were conducted using Microsoft Teams due to the respective locations of the selection panel members (Cairns, Townsville and Brisbane) and the shortlisted applicants (Cairns and Townsville).
[11]	The selection panel consisted of Ms Erica Odenthal as Chair ('the Chair'), Mr Steven Sanderson (who is also Ms Cervellin's current supervisor) and Ms Gaenor Dixon ('the panel'). 
[12]	On 15 March 2021, the selection report was approved. That report relevantly attached a panel declaration form identifying those panel members with professional relationships with the applicants. No conflicts were identified.
[13]	The selection report identified that all three applicants had met merit and ranked them according to their comparative merit assessments. Ms Cervellin was considered to be the third most meritorious candidate.
[14]	The appointment of the successful candidate was advertised in the Queensland Government Gazette. Ms Cervellin subsequently sought and received feedback from Mr Sanderson.
Grounds of Appeal
[15]	Ms Cervellin challenges the recruitment and selection process on the grounds that the:
(a)	Chair, Ms Odenthal, conducted herself unprofessionally indicating a possible bias against Ms Cervellin;
(b)	professional disciplines and allocation of responsibilities of members of the panel was inappropriate; and
(c)	panel breached the PS Act, the Directive and internal recruitment policies in that it disregarded merit information, relied only on Ms Cervellin's interview performance and failed to incorporate appropriate selection techniques.
Relevant Principles
[16]	The PS Act relevantly provides:
27	The merit principle
	(1)	The selection, under this Act, of an eligible person for an appointment or secondment as a public service employee must be based on merit alone (the merit principle).
	(2)	The merit principle applies subject to chapter 5, part 2, division 2.
	...
	(3)	In this section—
		appointment does not include a transfer.
28	Merit criteria
		In applying the merit principle to a person, the following must be taken into account—
		(a)	the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;
		(b)	if relevant—
			(i)	the way in which the person carried out any previous employment or occupational duties; and
			(ii)	the extent to which the person has potential for development.
[17]	The Directive relevantly provides:
7.	Merit assessment and decisions
7.1	Merit assessment must occur irrespective of whether a vacancy is advertised or not. Subject to clause 7.2, chief executives are responsible for determining the activities required to assess merit.
7.2	Assessment processes for advertised vacancies must:
	(a)	incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role
	(b)	take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
	(c)	incorporate pre-employment checks including referee checking as per clause 8
	(d)	measure the relative merit of each applicant, and
	(e)	be consistent with the principles of employment equity and anti-discrimination.
7.3	Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).
...
7.5	If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided.
7.6	In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive.
7.7	Selection decisions and notification of outcomes must take place in a timely manner. To facilitate this, panels should be formed and selection strategies determined prior or concurrent to advertising. A vacancy advertisement will lapse if no appointment is made within six months of the closing date of the vacancy.
7.8	To promote integrity in recruitment, selection panel documentation must include a declaration from each panel member and the decision maker that identifies:
	(a)	any actual, potential, or reasonably perceived conflicts of interest between the panel member or decision maker and applicants for the role, or
	(b)	the absence of a conflict of interest between the panel member or decision maker and applicants for the role.
Ground of Appeal 1 – Conduct and Bias of the Panel Chair
[18]	Ms Cervellin contends the Chair conducted herself unprofessionally in the form of negative body language and facial expressions in breach of cls 1.5(a) and 1.5(b) of the Code of Conduct for the Queensland Public Service. She submits the conduct commenced early in the interview and included the Chair rolling her eyes, smirking and sighing as Ms Cervellin responded to questions. 
[19]	Ms Cervellin submits this induced an 'automatic stress response' impacting her ability to communicate and provide her best responses during the remainder of the interview. This was compounded by the fact that the Chair's video occupied half of Ms Cervellin's screen. In her submissions, Ms Cervellin then detailed the questions she was asked, her responses during the interview, and responses she would have given had she not already felt that she had been negated as a viable candidate.
[20]	With respect to the Chair's video consuming half the screen, the Department submits that it was not within the panel members' control as to how their screens appeared and, in any event, that was not a relevant consideration for the panel in assessing merit. It submits there was no evidence of distracting or negative body language or behaviour during the interview. It adds that when Ms Cervellin sought feedback from her supervisor, Mr Sanderson did not agree with her complaints regarding the Chair's conduct. In making that submission it relies on notes made by Mr Sanderson following the feedback meeting.
[21]	While it acknowledges it is unfortunate Ms Cervellin felt distracted during the interview, it maintains there is no evidence to suggest her interview was conducted any differently to those of the other applicants, or that any of the panel members' conduct was inappropriate.
[22]	In her submissions in reply, Ms Cervellin clarified that, while she accepted the Microsoft Teams interface was beyond the Chair's control, it is relevant in considering why the impugned conduct had such an impact on her. She denies Mr Sanderson's notes reflect he disagreed with her and highlights evidence that she had raised concerns regarding the Chair's conduct well before she was informed of the outcome of the recruitment process.
[23]	At the conclusion of a conference, which was set down in late August 2021 to obtain further information from both parties in relation to the facial expressions and other events complained of by Ms Cervellin, both the Department and Ms Cervellin provided further written submissions on the issue.
[24]	Although both Ms Dixon and Mr Sanderson confirmed they did not witness any inappropriate facial expressions by the Chair, the Department submits Ms Odenthal subsequently confirmed she suffered from a visual impairment and has been informed in the past that she can exhibit certain facial expressions when participating in Microsoft Teams meetings. 
[25]	According to the Department, Ms Odenthal stated that during Ms Cervellin's interview she was referring to three computer screens and other hard copy documents, which would likely have caused her to squint quite heavily when trying to refocus her vision between the various documents.
[26]	Ms Cervellin maintains the admission from Ms Odenthal supports her initial claims as to what she observed during the interview process. She argues Ms Odenthal should have taken more care and disclosed her propensity to exhibit certain facial gestures to avoid the ensuing scenario, whereby Ms Cervellin interpreted the facial gestures as a negative response to her answers.
[27]	Ms Cervellin maintains it was obvious she became distressed during the interview process, yet no candidate care was offered. She revisited a reference provided by a colleague, Ms McCarron, attached to her earlier submissions, which included a description of a similar experience whereby Ms McCarron's focus and the direction of her responses in an interview were impacted, after observing what she considered were inappropriate facial gestures exhibited by Ms Odenthal.
Ground of Appeal 2 – Professional Disciplines and Allocation of Responsibilities of Panel Members
[28]	Ms Cervellin submits she was concerned by the panel's composition, specifically the failure to include a suitably qualified physiotherapist with experience in the HP5 role. She notes this would have been easy to achieve given the number of HP5 positions in other regions and submits it would have provided the panel with an expert discipline‑specific opinion.
[29]	Further, although she acknowledges Mr Sanderson, the line manager for the North Queensland position, was on the panel, she submits the fact that Ms Odenthal as Chair was from another region resulted in local knowledge being overlooked.
[30]	The Department maintains the panel membership was appropriate as it consisted of the line mangers for the positions being recruited, being Ms Odenthal for Far North Queensland and Mr Sanderson for North Queensland, as well as Ms Dixon, Principal Advisor – Therapies, Diversity and Inclusion. It submits each panel member had relevant knowledge, work experience and/or specialist expertise in the areas of therapies provided in schools.
Ground of Appeal 3 – Non-compliance with the PS Act, the Directive and Internal Policies
[31]	Ms Cervellin submits the panel breached cl 7.2(b) of the Directive in that it failed to consider all merit information before it and focussed on only one aspect of the assessment being her interview performance. 
[32]	Ms Cervellin maintains she provided extensive evidence of her suitability for appointment while applying for the position, highlighting she has been acting in the HP5 role throughout Term 1, 2021. In making this submission she relies on several letters of support sourced for the purpose of the present appeal, and again outlined answers she would have given in interview.
[33]	In her submissions in reply, she submits the panel made no reference to her written application or work history, and that during her feedback session she was explicitly informed the panel did not take her employment history, including her experience in the HP5 role, into account. This failure, she submits, also resulted in a failure to conduct a sufficiently comprehensive merit assessment in breach of cl 7.2(a). 
[34]	Ms Cervellin adds the selection report does not include a statement explaining the basis on which the applicants were considered meritorious against the selection criteria as required by cls 7.3 and 7.5 of the Directive. In later submissions, Ms Cervellin revisited the feedback provided to her from Mr Sanderson, noting his confirmation the panel had only considered interview performance in their post interview selection process.
[35]	Further, she submits she was not offered any candidate care, such as being advised to take a breath or a small break during the interview, in breach of the Department's own recruitment and selection policy.
[36]	The Department argues the recruitment and selection process was managed in accordance with the PS Act and the Directive in that it appropriately applied the merit principle and made the appointment on the basis of a comparative merit assessment. In doing so, it relies on the process set out at [8] to [14] above, which it submits was undertaken in accordance with cl 7 of the Directive.
[37]	The Department contends Ms Cervellin's inclusion of letters of support and answers regarding what she would have said at interview after the fact, are neither relevant to the decision made by the panel, or the present appeal. It further notes that, as Ms Cervellin was deemed meritorious, she is eligible for consideration for appointment should the position become vacant within 12 months of the decision.
Consideration
[38]	In deciding an appeal against a promotion decision, s 562C(2) of the IR Act provides that the Commission may set the decision aside only if it determines the recruitment or selection process was deficient, having regard to whether the process complied with the PS Act, a regulation or a directive of the public service commission chief executive under the PS Act. 
Did the Chair, Ms Odenthal, conduct herself unprofessionally during the interview, indicating a possible bias against Ms Cervellin?
[39]	Further submissions provided to the Commission following a conference in August 2021, support a conclusion it is likely Ms Odenthal suffered from a visual impairment that resulted in her exhibiting some unusual facial expressions during the Microsoft Teams interview. It seems the expressions were more noticeable in circumstances where her face was dominating Ms Cervellin's screen.
[40]	Although it is unfortunate Ms Cervellin was distracted by the facial expressions, I am not persuaded, having regard to the submissions on the issue, that Ms Odenthal intentionally set out to distract or undermine Ms Cervellin during interview process, nor can I be satisfied the conduct offended the Directive to the extent that it would render the recruitment and selection process deficient, on this ground of appeal. 
 Were the professional disciplines and allocation of responsibilities of members of the panel inappropriate?
[41]	Although the Directive is largely silent on the composition of selection panels, the Department has developed a Recruitment and Selection policy which outlines the principles that apply to the recruitment of departmental employees.
[42]	Under the heading 'Principles', the policy highlights the importance of selecting panel members who are appropriately qualified to be involved in the selection process. The policy confirms a person may be considered 'appropriately qualified' for a selection panel based on a combination of:
•	their work experience;
•	specialist expertise in the area being recruited for (i.e. as a subject matter expert);
•	completion of training in recruitment and selection processes; and/or
•	demonstrated previous experience in recruitment and selection processes. 
[43]	In response to Ms Cervellin's concerns about the composition of the panel, the Department detailed the positions of each member, noting two are the current line managers of the positions being recruited, in addition to a Principal Advisor, Therapies, Diversity and Inclusion.
[44]	The Department further submits that all panel members possessed relevant knowledge, work experience and/or specialist expertise in the areas of therapies provided in schools, in accordance with the requirements of the relevant recruitment and selection policy.
[45]	Although there may well have been some value in including a panellist with specialist expertise in physiotherapy, having considered the requirements in the policy insofar as it concerns the composition of the selection panel and the definition of an appropriately qualified person, I am not satisfied the Department has failed to comply with the Directive or the Department's recruitment and selection policy, having considered the composition of the panel.
[46]	The advertised position is a relatively senior role. The responsibilities extend well beyond the provision of physiotherapy services, with a requirement for the successful candidate to provide professional supervision, direction, leadership and strategic advice on policy development and implementation.
[47]	The inclusion of the relevant line managers and a senior advisor in the area of therapies, diversity and inclusion does not offend the relevant policy, nor does it render the recruitment process deficient.
Did the Panel disregard merit information, rely only on Ms Cervellin's interview performance and fail to incorporate appropriate selection techniques into the process?
[48]	Clause 7.2 of the Directive sets out the assessment processes that must be followed, which includes a requirement to:
(a)	incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role
(b)	take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)
...
(d)	measure the relative merit of each applicant
[49]	Importantly, cl 7.3 of the Directive requires that selection decisions for relevant vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (that is, how has the successful candidate demonstrated superior merit against the key attributes of the role as compared to the other applicants). 
[50]	Moreover, where a selection panel recommends an order of merit, the Directive provides that a comparative statement must be provided which clearly describes the specific reasons why each applicant is considered to be more meritorious than the next in the order of merit.
[51]	The Department submits the recruitment and selection process, which is the subject of this appeal, was managed in accordance with the PS Act and the Directive in applying the merit principle. 
[52]	Although it is the case that all three interviewees, were considered meritorious and progressed through to the interview stage, it is not possible to discern from the materials provided by the Department what other considerations, beyond the interview process, were taken into account by the panel, or how these considerations contributed to the determination that the successful applicant was the most meritorious of the three candidates who were interviewed. 
[53]	Although I accept it is entirely possible the selection panel may well have identified the most meritorious candidate through the process, one of the challenges with the process is that the selection report, and the submissions provided by the Department, provide very limited insight into how the panel arrived at its decision. 
[54]	The comparative assessment within the selection report, for example, while nominating which candidate has been assessed as the most meritorious, provides no reasons for the assessment. 
[55]	Notwithstanding this deficiency, I acknowledge selection panels can take differing approaches to the way a merit and comparative assessment is recorded within selection reports, such that it is sometimes possible to glean the reasons from other areas of the report. It is not uncommon to review selection reports where commentary concerning both the merit and comparative assessments have been intermingled. 
[56]	In this case, the selection report dedicates an area for commentary by the panel on the merit assessment of each candidate. However, the commentary listed against the merit assessment, although somewhat more descriptive, provides little, if any, insight into how the successful applicant demonstrated superior merit against the key attributes of the role, as compared to those who were considered less meritorious.
[57]	Admittedly, there are references within the selection report about the successful candidate engaging in 'strong discussions' on strategic direction and demonstrating innovation and, separately, another candidate is described as being able to provide examples of 'effective physiotherapy practices'. 
[58]	The commentary in relation to Ms Cervellin points to her having demonstrated limited evidence of strategic direction 'during the interview', however, in all three cases, it is not sufficiently clear from the report what regard, if any, was given by the panel to other merit information, beyond the interview process.
[59]	The Directive, which in many respects complements the Department's obligations under the PS Act, is aimed at not only ensuring the most meritorious candidate is selected, but also requires that a sufficiently comprehensive assessment of each candidate is undertaken. Moreover, it is essential that the reasons for the decision are clearly documented, with the objective of giving applicants and other stakeholders confidence in the process and the final decision.
[60]	Having regard to the materials provided by the Department, I am not satisfied the panel has satisfied the obligations set out at cls 7.3 and 7.5 of the Directive, particularly as they relate to the requirement to clearly and sufficiently document the reasons for the decision. The lack of detail in the selection report, particularly in relation to how and why the successful candidate demonstrated superior merit, has created an outcome where I cannot be satisfied the requirements at cls 7.2(a), (b) and (d) have been met. 
[61]	In this regard, I consider the selection process has not complied with the Directive, which can only lead to a conclusion that the promotion decision was not fair and reasonable. 
Conclusion
[62]	In my view, the selection process undertaken to fill the position, which is the subject of this appeal, was deficient in that it did not generally comply with cls 7.3, 7.5 and 7.2(a), (b) and (d) of the Directive. 
[63]	This is because, from the point immediately after the candidates were progressed to the interview, the panel does not appear to have considered or sufficiently documented merit information when arriving at its decision. Likewise, the comparative merit assessment statement did not sufficiently describe the reasons why each recommended applicant was considered more meritorious than the other candidates. 
[64]	For these reasons, the promotion decision was not fair and reasonable, and the selection process was deficient. Accordingly, the promotion decision must be set aside.
[65]	I acknowledge the revocation of an appointment is a significant decision to make and appreciate the impact of the decision will be felt by all three candidates. It is unfortunate that the failure of the panel to attend to the requirements in the Directive and clearly document the reasons for their decision will lead to a period of uncertainty and disruption for all three employees. 
[66]	Accordingly, it is in the best interests of all parties to this appeal that the Orders accompanying this decision are complied with as expeditiously as possible. 
[67]	The appeal is allowed, and I order accordingly.
Orders
1.	The appeal is allowed.
2.	The promotion decision is set aside.
3.	The issue is returned to the Department of Education with a copy of this decision.
4.	Within one month, the Chief Executive is to revoke the appointment of the successful applicants and publish a gazette notice that the appointments are revoked.
5.	A new selection panel is to be formed and it is to be provided with copies of:
(a)	Directive 12/20 Recruitment and selection; and
(b)	Sections 27 and 28 of the Public Service Act 2008 (Qld).
6.	The Chief Executive is to resume the recruitment and selection process for the position immediately after the selection of the three shortlisted applicants for interview.