QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Petrie v State of Queensland (Queensland Mental Health Commission) [2022] QIRC 343	
		
PARTIES:	
	Petrie, John
(Appellant)

v

State of Queensland (Queensland Mental Health Commission) 
(Respondent)
	
CASE NO.:
	PSA/2022/456
	
PROCEEDING:
	Public Service Appeal – Fair Treatment Decision
	
DELIVERED ON:
	31 August 2022	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER: 	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
	
CATCHWORDS:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where the appellant requested a flexible working arrangement to work from home two days a week – where request was partially approved for the appellant to work from home one day a week – whether decision was fair and reasonable – decision fair and reasonable
	
LEGISLATION:	Industrial Relations Act 2016 (Qld), ss 4, 27, 28, 562B and 562C

Public Service Act 2008 (Qld), s 194
	
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)	

Reasons for Decision

Introduction

[1]	Mr John Petrie ('the Appellant') is employed as a Business Support Officer within the Corporate Governance and Service Delivery Unit of the State of Queensland (Queensland Mental Health Commission) ('QMHC'; 'the Respondent').

[2]	On 1 April 2021, the Appellant submitted a 'Flexible work application' seeking to work from home three to four days per week due to his carer responsibilities at home and being the primary carer for both his parents. Mr Ivan Frkovic, Mental Health Commissioner, subsequently provided approval for the Appellant to work from home two days per week for three months, one day per week for a further three months and that the Appellant was to return to work on a full time basis by September/October 2021.

[3]	The Appellant's working from home arrangement was subsequently extended until December 2021 by Mr Frkovic upon a request made by Mr Ben Laundon, Acting Manager Corporate Governance and Service Delivery, on behalf of the Appellant. The extension was approved to allow the Appellant to arrange the necessary support for his parents.

[4]	On 22 December 2021, the Appellant requested for a further extension of the working from home arrangement, requesting to work from home two days a week, listing similar reasons to the initial request made on 1 April 2021. Due to the Christmas break and the COVID-19 Omicron outbreak in January 2022, the request was not considered until 11 March 2022, where Mr Frkovic partially approved the Appellant's working from home request for one day a week. This was communicated to the Appellant by the Appellant's manager, Mr Michael Corne on 14 March 2022.

[5]	On 18 March 2022, Mr Corne, on behalf of the Appellant, met with Mr Frkovic to discuss the Appellant's working from home arrangement that was approved on 11 March 2022 and on 25 March 2022 Mr Frkovic provided a further explanation for the Appellant to work from home one day per week for six months.

[6]	By appeal notice filed on 13 April 2022, the Appellant appealed against the decision of Mr Frkovic dated 11 March 2022, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld).

Appeal principles

[7]	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 ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('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.

[8]	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 of Mr Frkovic dated 11 March 2022 was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

[9]	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

[10]	In the appeal notice, the Appellant contends that his request to work from home for two days per week is reasonable, submitting that:

(a)	Mr Frkovic recently advised that he would consider for all staff to access one day a week working from home. However, this 'one size fits all' approach is not considerate of individual circumstance and Mr Frkovic's decision depreciates the Appellant's working from home justification;

(b)	the Appellant has increased the external care support available to his parents, which minimises any disruption to the Appellant's working from home arrangements;

(c)	the Appellant's request was and continues to be motivated by providing his parents with the peace of mind that he is available for their health and wellbeing needs, which is also supported by the Appellant's doctor;

(d)	the Appellant has been working from home two days a week over the past year and while doing the best to address Mr Frkovic's wishes, the two days requested provides the minimum needs requested by the Appellant;

(e)	while there may have been occasions where COVID-19 working conditions and the Appellant's working from home arrangements impacted the support provided, the Appellant was not advised of anything that may have significantly impacted on the operational requirements;

(f)	most work impacts whilst working from home have been during complete lockdowns due to COVID-19. These issues were mainly IT related and the Respondent has engaged IT support which works off-site and attends the office if necessary; and

(g)	the Appellant's request is strongly supported by the Appellant's manager.

Appellant's submissions 

[11]	The Appellant reiterates much of the submissions made in the appeal notice. The Appellant highlights that the overarching reason for his appeal is that over the past two years, processes have been adjusted to ensure full financial functionality remotely and the current two days a week working from home arrangement is viable and allows the Respondent to still operate smoothly. The Appellant further submits that:

(a)	the Appellant has medical evidence to support this request; and

(b)	the Appellant's parents' health concerns are not the primary reason for the Appellant's application for the continued work arrangement but is to be there for 'support' if required.

Respondent's submissions

[12]	The Respondent, in its submissions, outlined the Appellant's duties and responsibilities as a Business Support Officer:

a. 	providing administrative support to the functional areas within the QMHC, as required
b. 	providing general administrative support, including filing, photocopying, scanning, faxing, ordering and maintaining office stationery and supplies, and arranging for repair of office accommodation, machines and equipment
c. 	assisting in reviewing incoming and outgoing correspondence and distributing it to the appropriate officer, and sending emails and faxes, and booking couriers
d. 	undertaking financial administrative functions, including stationery orders, corporate card purchases and reconciliation, managing cab charges, and processing of non-contract related invoices for payment
e. 	scheduling, planning and coordinating meetings, forums and events, including booking venues and catering, preparing agendas, preparing and disseminating meeting papers, recording minutes, and completing any follow up actions
f. 	ensuring efficient and effective office management practices by maintaining a comprehensive range of administrative, physical and records management procedures and systems;
g. 	assisting with coordinating the correspondence tracking system in accordance with the QMHC records management policy and procedures
h. 	coordinating staff induction sessions for the QMHC
i. 	ensuring physical file management within the QMHC is in accordance with government policy and standards, including the conduct and reconciliation of a six monthly file audit.

The purpose of the role of Business Support Officer is to administrative support and assistance to the Manager, Corporate Governance and Service Delivery, the Business Service Officer, and the broader QMHC... As suggested in the position title, it is a supporting role.

[13]	The Respondent submits that the decision is fair and reasonable, submitting, in summary, that:

(a)	the Appellant's role requires him to provide a wide range of in-office, ad-hoc assistance to the policy teams and the Commissioner, including tending to general IT support requests that cannot be transferred, arranging of couriers, issuing of taxi vouchers and placing stationary orders;

(b)	the Appellant is the only Business Support Officer role in the employ of the Respondent and his absence from the workplace when working from home means that his duties, which he would normally need to be physically present to perform, must be performed by others. This poses an unfair burden on his colleagues;

(c)	previous arrangements permitting the Appellant to work from home three days a week resulted in staff complaints regarding the of a lack of administrative support;

(d)	Mr Frkovic took into consideration all relevant circumstances including the Appellant's personal obligations to his parents, his role as a Business Support Officer and his ability to realistically work from home two days a week and the current and future impact of such a flexible working arrangement ('FWA') on the Respondent;

(e)	the Respondent has recognised that the Appellant has significant family care obligations and to accommodate these needs, the Respondent has undertaken to provide more flexible working from home and general working arrangements where necessary; and

(f)	it has always been the position of the Respondent that approval of the Appellant working from home three days a week was to assist him in organising alternative care arrangements for his parents. This has been reiterated to the Appellant in all correspondence concerning the approval of his various working from home arrangements.

Appellant's submissions in reply

[14]	In reply, the Appellant reiterates that he has been utilising some form of FWA for more than a year and have never been unable to fulfil any of the duties whilst working from home nor has there been any major issues or concerns from the Appellant's manager or the wider team. The Appellant submits that work processes have been adjusted accordingly to allow for flexibility.

[15]	The Appellant further submits that:

(a)	the Respondent's administration guide highlights the types of administrative support the Appellant provides which can all be completed remotely, with the exception of two tasks being the collection of mail and petty cash enquiries;

(b)	the Appellant being his parents' primary carer should not be confused with the Appellant being a full time carer;

(c)	the request to work from home two days a week was done in the 'spirit of fairness to the team';

(d)	the IT duties referred to by the Respondent are not within the Appellant's position description;

(e)	any IT issues raised can be assessed remotely via Microsoft Teams. Where the Appellant is unable to resolve the issue, the team member is then referred to the IT department who also provide support remotely;

(f)	couriers, taxi vouchers and stationery requests can all be done remotely via the internet;

(g)	the Appellant is not 'absent' whilst working from home and is still available to support the team remotely if needed. Further, there is full support from one of the Appellant's colleague and previous manager who is currently on leave;

(h)	the Appellant's manager was unable to provide any examples where the Appellant working from home has impacted his role by providing administration support; and

(i)	it is unclear how Mr Frkovic has considered the Appellant's personal circumstances and medical advice by providing the Appellant with the same arrangement as the entire team.

Consideration

[16]	Consideration of an appeal of this kind requires a review of the decision of Mr Frkovic dated 11 March 2022 to determine if the decision was fair and reasonable in the circumstances. A decision about the reasonableness of a decision is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

[17]	Section 4(k) of the IR Act provides that one of the purposes of the IR Act is to promote diversity and inclusion in the workforce, including by providing a right for employees to request FWAs to help balance their work and family responsibilities. The IR Act also makes provision for employees to request FWAs and outlines what the employer may decide to do in responding to such a request.
 
[18]	Mr Frkovic outlined his reasons in his decision, stating:

John, I have considered your application and your person [sic] circumstances for flexible work arrangements. I am appreciative of your challenging personal circumstances where you are required to care for your parents.

In making this decision, I have considered your previous requests to WFH during COVID; your role as a carer for your parents and the operational requirements and impacts this has on the Commission. In approving a two-day work from home arrangement for you during COVID in 2021, I asked the Business Manager to work with you to put in place a range of supports for your parents as their care needs cannot be substituted through WFH arrangements. I am glad to see that in the main this has been achieved.

Similarly, in making this decision I have taken into consideration your role and the tasks outlined in your PD which from a functional assessment perspective requires your presence in the office most of the time. However, I am satisfied that certain tasks could be performed away from the office and as a result I approve one day per work working from home for six months.

Finally, I will ask your line manager to support you to put in place further supports for your parents to reduce the caring burden on you and the impact on your health even while working from home one day per week.

[19]	The Respondent submits that Mr Frkovic offered additional support including flexible start and finishing times allowing the Appellant to commence work at 7am and finish at 2pm. This arrangement was organised to allow the Appellant to attend hospital appointments with his mother on a case-by-case basis. 

[20]	The Appellant's grounds of appeal can be summarised as follows, that:

(a)	the FWA allowing for one day working from home per week is no more than that offered to all other staff;

(b)	the Appellant has increased external care support available to his parents, however his requirement to be available for their health and wellbeing needs is also supported by his doctor; and

(c)	most work impacts had been caused by lockdowns and required external IT support, and the Appellant was not advised of anything that may have significantly impacted on the operational requirements. 

[21]	The Appellant submits that Mr Frkovic's offer to consider employee requests to work from home one day per week is a 'one size fits all' approach. I am not of the view that Mr Frkovic's offer can be described in such terms. Mr Frkovic has indicated that he will review employee requests of this nature and presumably this will be done in consideration of the needs of other employees and the organisation as a whole. The Respondent submits that other members of the Corporate Governance and Service Delivery Unit have sought working from home arrangements that must also be accommodated. The Appellant is not entitled to 'more' flexibility than his work colleagues because of his particular circumstances. Ultimately, it is a matter for Mr Frkovic to determine how best to arrange FWAs to ensure fairness across all employees whilst considering each request on a case-by-case basis. 

[22]	Mr Frkovic has been clear in his communication that the Appellant's FWA, which commenced at three days per week working from home, was a temporary measure to allow the Appellant to put into place additional support for his parents. The Appellant submits that he has increased external care support for his parents, however he is still required to be available for their health and wellbeing needs. The Appellant is understandably attempting to support his parents to the greatest extent possible, however his employer must balance this need with the requirements of the organisation. Mr Frkovic has provided a reasonable process in allowing sufficient time for the Appellant to put in place arrangements to support his parents. This process included agreeing to extensions despite any inconvenience caused by this arrangement.

[23]	The Appellant may well be correct in his submission that he was not advised of anything that may have 'significantly impacted on the operational requirements' whilst he was working from home. The difficulty, however, is that the Appellant's absence from the office appears to have led to greater workload for other staff members generally rather than particular incidents of 'significant impact'. The Respondent submits that in his role as a Business Support Officer, the Appellant provides in-office administrative support and assistance to the Manager, Corporate Governance and Service Delivery, the Business Service Officer, and the broader QMHC as required. The Respondent submits that this requires that the Appellant provide a wide range of in-office, ad-hoc assistance to the policy teams and the Commissioner, such as general IT support requests, arranging couriers, issuing taxi vouchers and placing stationary orders. The nature of this type of role, in most circumstances, is that it is responsive to administrative requirements as they arise and if the person in this role is not in the office, these tasks will often fall to other staff. 

[24]	The Respondent submits that the Appellant is the only Business Support Officer role at the QMHC and as such, his absence when working from home means that these duties, which he would normally need to be physically present to perform, must be performed by others. The Respondent submits that this poses an unfair burden on his colleagues, citing recent examples in which a manager was called away from his responsibilities to attend to the administrative work that would otherwise be done by the Appellant along with other staff complaining of a lack of administrative support. In these circumstances, it was open to Mr Frkovic to balance the impact on other employees along with the requirements of the organisation when determining that the Appellant's FWA will be limited to one day working from home per week. 

[25]	The reasons provided by Mr Frkovic in the decision, as outlined at [18], demonstrate consideration of the Appellant's personal circumstances and an acknowledgment that certain tasks can be performed away from the office. The decision outlines, however, that the role requires the presence of the Appellant in the office most of the time and therefore, the working from home request was approved for one day a week rather than the two days sought. This decision was open to Mr Frkovic. 

[26]	The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:  

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. 

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. 

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

[27]	Applying the principles outlined above, I do not consider that the decision appealed against lacks justification in the circumstances. 

[28]	Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances. 

Order

[29]	I make the following order:

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