Biggs v State of Queensland

Industrial Relations (Tribunals) Rules 2011 (Qld) r 97(3)(b)

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

Public Sector Act 2022 (Qld) s 44, s 45

Public Service Act 2008 (Qld) s 27, s 28

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Goodall v State of Qld & Anor [2018] QSC 319

• [1] Mr Andrew Biggs is employed by the State of Queensland in the position of Senior Land Resources Officer, classification PO4, in the Land Resource Assessment and Science division of the Department of Resources ('the Department').
• [2] On 10 January 2023, two vacant permanent positions of Principal Land Resources Officer, classification PO5 ('the PO5 positions'), were advertised on the Department's intranet through an approved closed merit process.[1]
• [3] Mr Biggs participated in an interview as part of the closed merit recruitment process. However, he was not included in the order of merit determined at the conclusion of the interviews and was not offered either of the positions.[2]
• [4] Instead, two other applicants were deemed meritorious, namely:[3]
  • Mr S, who was ranked first in the order of merit and at the time of the recruitment and selection process and was employed as a Senior Land Resources Officer; and
  • Ms W, who was ranked second in the order of merit at the time of the selection and recruitment process, was employed as a part-time Land Resources Officer and had previously acted in a Senior Land Resource Officer role.
• [5] Both Mr S and Ms W were subsequently offered the available positions according to the order of merit. Mr S accepted the role, however Ms W, after further consideration, declined the offer of a PO5 position.[4]
• [6] Public notification of the appointment of Mr S to the position, in the Queensland Government Gazette, occurred on 2 June 2023 ('the decision').[5]
• [7] By appeal notice,[6] Mr Biggs seeks to challenge the promotion decision of the Department of Resources pursuant to s 131(1)(e) of the Public Sector Act 2022 (Qld) ('the PS Act').[7]
• [8] In general terms, Mr Biggs raises concerns in relation to both the recruitment process and whether the most meritorious candidate was selected.[8] He contends there is evidence that indicates:

the process has been biased (possibly deliberately) towards achieving a specific pre-determined outcome - downplaying the technical merits of some applicants [namely, himself] in order to favour an applicant with less technical merit (specifically Ms W).[9]

• [9] In relation to the interview process, Mr Biggs has raised concerns about the use of a non-technical selection panel, a disproportionate reliance on non-technical questions for a highly technical position, an undue weighting applied to the interview process, an overly negative interpretation of Mr Biggs responses by the selection panel, and a disregard for his prior leadership.

• [10] An appeal of this kind is decided by reviewing the decision 'to decide whether the decision appealed against was fair and reasonable'.[10]
• [11] It is not by way of rehearing but instead involves a review of the decision arrived at and the decision-making process therein.[11] The word 'review' must take its meaning from the context in which it appears.[12]
• [12] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[13] A decision made by the Department, which was reasonably open to it, should not be disturbed on appeal.
• [13] In deciding whether a promotion decision appealed against was fair and reasonable, the issue for determination is limited to whether the process complied with the PS Act, a regulation or a directive made by the Public Sector Commissioner under that Act.[14]
• [14] Section 562C(1) of the Industrial Relations Act (Qld) ('IR Act') prescribes that the Commission may determine to either:[15]
  • confirm the decision appealed against; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate.
• [15] In deciding an appeal against a promotion decision, the Commission may set the decision aside only if the Commission finds that the selection process was deficient, having regard to whether the process complied with the PS Act, a regulation or the relevant directive.[16]
• [16] For the reasons that follow, I find the decision was fair and reasonable.

• [17] The two PO5 Principal Land Resource Officer positions were newly created roles. The purpose of the roles was to provide leadership and supervision of the existing PO4 professional team within the Land Resources and Science ('LRAS') team, which included acting as an escalation point for more complex technical work.[17]
• [18] The role profile outlined the accountabilities of the position. These broadly included supervision, specialist leadership, management of staff performance and development, management of workplans, and the provision of technical knowledge and advice.[18]
• [19] The selection and recruitment process for the positions encompassed both written applications and interviews.[19]
• [20] All applicants were provided with a two-page limit for the application letter, which accompanied their resume.[20]
• [21] The interview panel was approved by the A/Executive Director Natural Resource Operations and consisted of:[21]
  • Panel Chair, Ms Leeann Jude (Director, Natural Resource Management and Compliance, Department of Resources);

• Mr Stephen Potts (Director, Soil Catchment and Science, Department of Environment and Science); and

• Ms Jeanette Lipczynski (Principal HR Consultant, Department of Resources).

• [22] Once the written applications were complete, a shortlisting matrix was prepared by Ms Lipczynski.[22] At the point of shortlisting, a decision was made by the panel to conduct interviews with all applicants.[23] The interviews were held on 2 and 3 February 2023.[24]
• [23] It is not in dispute that a document containing five (5) interview questions was made available to each interviewee fifteen (15) minutes prior to interview. Each applicant was provided with a maximum of 45 minutes to respond to the questions.[25]
• [24] On 20 February 2023, the panel forwarded the signed Selection Report to the Delegate. The Selection Report was approved by the Delegate on 3 March 2023, following a request for further information.[26]
• [25] Between 20 and 24 March 2023, the Selection Panel Chair contacted Mr Biggs and offered to provide him with verbal feedback about the recruitment process and outcome.
• [26] Mr Biggs declined the verbal feedback and requested he be provided with written feedback instead.
• [27] Written feedback was provided to Mr Biggs on 11 April 2023.[27]
• [28] The appointment of the successful applicant, Mr S, was gazetted on 2 June 2023. It is noted that the Department did not gazette the application within the timeframe provided under the relevant Directive.
• [29] In determining whether the promotion decision was fair and reasonable and whether the recruitment and selection process was deficient, it is necessary to consider the Appellant's submitted grounds of appeal.

• [30] As best I understand his submissions, Mr Biggs challenges the recruitment and selection process for the following reasons:[28]

(a) The selection process was biased against Mr Biggs, downplaying his technical merit, to favour an applicant with less technical merit, namely Ms W.

(b) The selection panel did not comply with the recommended practice outlined within the Department's Recruitment Protocol, nor did it follow standard operational practices in recruitment, which in turn distorted the selection process. The non-technical nature of the panel compromised its ability to understand technical responses and the nature of the role.

(c) The interview process including the questions asked, and weight allocated to the applicant's performance, when considering merit, was at odds with established practices in the recruitment of technical roles.

(d) The technical and professional experience detailed by Mr Biggs in his resume, which is far superior to any of the other applicants and well understood within LRAS, ought to have found him suitable, or at the very least meritorious for the position; and

(e) The feedback provided to Mr Biggs is deficient, omits key details, and suggests a deliberate intention to cast his interview responses in a negative light.

562C Public service appeals - decision on appeal

(2) In deciding an appeal against a promotion decision, the commission may set the decision aside only if the commission finds that the recruitment or selection process was deficient, having regard to whether the process complied with the Public Sector Act 2022, a regulation or a directive made by the Public Sector Commissioner under that Act.

• [32] Sections 44 and 45 of the PS Act provide the following:

44 Principles underpinning recruitment and selection

(1) The purpose of this section is to ensure the recruitment and selection of a high-performing, apolitical and representative public sector workforce.

(2) A person undertaking a recruitment and selection process in a public sector entity, including, for example, making a decision about employment of a public sector employee, must undertake the process in accordance with the principles mentioned in subsection (3).

(a) recruitment and selection processes must be directed to the selection of the eligible person best suited to the position; and

(b) recruitment and selection processes must be fair and transparent; and

(c) recruitment and selection processes must reflect the obligations under chapter 2 relating to equity, diversity, respect and inclusion.

45 Employment on merit and for equity and diversity

(1) A person selected for employment in or to a public sector entity must be the eligible applicant best suited to the position.

(2) In deciding the eligible applicant best suited to a position, a person undertaking a recruitment and selection process in a public sector entity -

(a) must consider each eligible applicant's ability to perform the requirements of the position; and

(i) the way in which each eligible applicant carried out any previous employment; and

(ii) the potential of each eligible applicant to make a future contribution to the entity; and

(iii) the extent to which the proposed decision would contribute to fulfilment of the entity's obligations under chapter 2, including, for example, the objectives, strategies and targets stated in the entity's equity and diversity plan.

• [33] The previous Public Service Act 2008 (Qld) in which Mr Biggs' application was decided, provided:

Part 4 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.

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;

(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.

• [34] The then current Directive 12/20 - Recruitment and Selection ('the Directive') provided the following:

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).

7.4 Chief executives must determine the documentation required for selection decisions for non-advertised vacancies, having regard to the nature and duration of the vacancy.

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.

10.1 Subject to clause 10.2 all applicants are to be advised that they may request feedback.

10.2 Graduate applicants who are interviewed are to be advised they are entitled to request feedback.

10.3 Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel sufficient to explain the panel's recommendation and the decision maker's decision.

11.1 The following appointments must be notified in the gazette within one month of the appointment decision:

(a) all senior executive and senior officer appointments from an advertised vacancy

(b) promotions of tenured public service officers from an advertised vacancy

(c) promotions of tenured public service officers arising from the use of the recurring vacancy provision.

The selection process was biased towards Mr Biggs, downplaying his technical merit, to favour an applicant with less technical merit, namely Ms W.

• [35] Mr Biggs contends the Department's conduct prior to, during, and after the interview process suggests an intention to downplay his technical skills, with the goal of achieving a specific, predetermined outcome for the PO5 role.[29]
• [36] In support of his position, Mr Biggs recalled the Director of Natural Resource Management and Compliance ('NRM&C'), Ms Leeann Jude, initially encouraged as many people as possible to apply for the positions.
• [37] According to Mr Biggs, Ms Jude stated she wanted to provide staff with an opportunity to participate in the interview process and to create an order of merit which would enable the Department to determine which employees could act in the PO5 positions, where short-term vacancies arose in the future.[30]
• [38] In his submissions, Mr Biggs recalled Ms W and Ms E (other applicants for the PO5 Role) describing conversations with Ms Jude, during which the Director indicated that applicants would being considered equally in terms of technical merit.[31] In support of this submission, Mr Bigg's relies on a Statutory Declaration prepared by Ms W, in which she declared:[32]

On 2nd February 2023 I spoke to Leeann Jude via Teams, between 1:17pm and 1:27pm. We discussed the PO5 Principal Leand Resource Officer position. I had been offered an interview for the PO5 position, and I was seeking her advice about the interview process. Leeann indicated that she was going into the interviews with an open mind, and that no one was pre-determined to be suitable for the role. She stated that it was assumed that everyone applying for the role had the technical skills necessary to fulfil the PO5 position.

• [39] Mr Biggs maintains the approach adopted by Ms Jude did not comply with s 44 of the PS Act and in particular, the obligation to select the person best suited to the position.
• [40] In addition, Mr Biggs argues the Department-wide practice of limiting cover letters to two-pages is discriminatory, particularly where experienced applicants are competing for science related roles, because it hinders an adequate evaluation of the applicant's experience and writing skills.[33]
• [41] Although Mr Biggs acknowledges within his submissions that the two-page limit did not impede his ability to participate in an interview, he maintains the limit prevents applicants from comprehensively exploring and demonstrating their merit in the written form. This, in turn, creates an inherent bias in the interview process, particularly where a panel is not technically competent.[34]
• [42] The 'bias' referred to by Mr Biggs appears to be a concern in relation to the favouring of verbal communication against written communication, and that a limitation of two pages does not deal with applicants in a 'balanced manner'.[35]
• [43] The Department refutes Mr Biggs' claims that the selection process was biased and designed to achieve a pre-determined outcome.[36] Although the Department acknowledges the PO5 Role included a requirement for the successful candidate to identify and escalate more complex technical work, it maintains the leadership and supervisory components are a significant requirement of the role.[37]
• [44] The Department further submits it was critical for the panel to have afforded weight to leadership skills and experience when assessing the applicants,[38] particularly where the role profile includes supervision, staff performance, staff development, and leadership, in addition to technical knowledge.[39]
• [45] In response to Mr Bigg's concerns that technical merit had not been adequately considered and / or that interviewees were provided with assurances that all applicant's would be considered equal in respect of technical merit, the Department submitted there was no indication that technical merit had not been considered, nor that all applicants were deemed to be equal in respect of their technical capability.
• [46] The Department provided the Commission with a copy of the Selection Report in support of its submissions, highlighting where technical expertise was considered and weighed during the recruitment process.[40]
• [47] In response to Mr Biggs' concerns about the two-page limit for application letters, the Department submits all applicants were provided with a two-page limit and therefore treated equally during the selection process. Moreover, the Department submits there is no evidence to support a conclusion that the page limit resulted in any bias towards more experienced candidates.[41]
• [48] The Department argues that in addition to the cover letter, the Panel took the time to consider the resumes of each applicant which included relevant employment experience and skills.[42] In any event, it maintains all applicants were granted an interview and that Mr Biggs' concerns in relation to the two-page limit are unfounded, in that he suffered no disadvantage or bias in progressing his application.[43]

The composition of the selection panel did not comply with the recommended practice outlined within the Department's Recruitment Protocol or normal operational practices, which led to a distortion in the selection process.

• [49] Mr Biggs contends the Department failed to follow its own Recruitment and Selection HR Protocol ('the Protocol') when appointing panel members[44] which resulted in a distortion of the recruitment process.
• [50] Under the heading, 'Forming a selection panel', Mr Biggs maintains the protocol details various features which should be considered when forming a panel, including:[45]

• Ideally one member should be the current supervisor of the position being filled. This person is usually the hiring manager (panel chair).

• At least one member on the panel has completed recruitment and selection panel training and/or has experience in recruitment and selection processes....
• One member understands the technical or professional elements of the role.

• All members must declare any conflict of interest with any of the applicants, and any declared conflict is to be appropriately managed (see the Conflict of Interest section in this document for further information).

• [51] Mr Biggs raises concerns about the failure to include Ms Jacki Wirth, the proposed supervisor of the PO5 Role, on the Selection Panel. According to Mr Biggs, he raised this issue during the application process, and recalls being told that Ms Wirth was able to be involved in the panel.
• [52] Mr Biggs is also critical about the inclusion of Mr Potts on the Panel. While he acknowledges Mr Potts would have familiarity with the discipline, he contends he does not hold the technical experience or knowledge required for the position, which in turn impeded the Panel's capacity to discern between the respective Applicants' technical skills.[46]
• [53] Mr Biggs contends the failure by the Department to include more technical experts on the panel conflicts with the recommended practices within its recruitment protocol.
• [54] Although not contained within the original reasons for the Appeal, Mr Biggs, in subsequent submissions submitted it would have been appropriate for Mr Potts to declare a 'perceived conflict of interest' and disqualify himself from the panel, due to the historic 'negative' interaction between the Department of Resources and the Department of Environment.[47]
• [55] In response to Mr Bigg's concerns about Ms Wirth's inclusion on the panel, the Department submits that while the Protocol states the ideal scenario is for the current supervisor to be included on the panel, it is not a requirement.[48] Further, that a decision was made to select a senior and experienced participant on the panel, which did not include the immediate (nor previous) supervisor, in response to a requirement within the protocol that consideration be given to potential conflicts of interest, for panel members.
• [56] It is submitted by the Department the reason for this was to ensure the process was accompanied with a high degree of transparency and to ensure any concerns about perceived conflicts were able to be addressed, given the adoption of a closed merit process.[49]
• [57] The Department maintains the panel members aligned with the Protocol's recommendations, submitting:

Ms Jude as Director was in the direct report line of the position. Mr Potts has a Bachelor of Environmental Management from the University of Queensland and had been employed in the area of environment science since 2000. Ms Lipczynski is a Principal Human Resources Officer specialising in recruitment. The department considers that the selection panel appropriately included member/s in the position's reporting line, who understood the technical and/or professional elements of the role, and due to the closed merit process, were senior and experienced in conducting recruitment processes.[50]

• [58] In response to Mr Bigg's concerns regarding Mr Potts' lack of expertise within the relevant discipline, the Department highlighted his current role as the Director of Soil Catchment and Science in addition to his knowledge of the technical discipline, which it argues justified Mr Potts inclusion as a technical expert on the panel.[51]
• [59] Observing that the role profile called for relevant qualifications in 'Soil Science, Agricultural Science, Environmental Science, Earth Science or Natural Resource Management_'_, the Department submitted the LRAS team consists of scientists who possess a variety of scientific and engineering qualifications, extending beyond soil science.[52]
• [60] In reply, Mr Biggs maintains that any submission that the panel held sufficient technical knowledge to judge merit on a technical leadership position is spurious.[53] Similarly, he questions the Department's decision to not include Ms Wirth, and suggests that other managers within the Department with experience managing the LRAS group should have been utilised.[54]

The interview process including the nature of the questions, weight allocated to the applicant's performance when considering merit, and opportunities for follow-up questions was at odds with established practices in the recruitment of technical roles.

• [61] Within his Appeal Notice, Mr Biggs raises concerns in respect of the five interview questions posed during the interview process. He maintains the questions were primarily non-technical, despite the highly technical nature of the role.[55] Mr Biggs argues the inclusion of so many non-technical questions is a significant diversion from established recruitment practices.
• [62] It is not in contention that 15 minutes prior to the interview, each applicant was provided with five questions to consider.[56] The questions posed to each applicant during the interview and the rationale for their inclusion were recorded as:

1. How would you describe your management style?

Looking for: General management style - fit with team, working with others...

• Vision: Drives autonomy in the team by empowering others to take ownership for the delivery and quality of outcomes achieved. (Drives accountability and outcomes)
• Accountability: Promotes personal responsibility for the realisation of a health workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplaces)

1. Can you tell us about a time that you have made a significant professional decision under pressure?

Vision: Analyses available data and supports others to identify essential information to uncover the cause of issues (makes insightful decisions)

1. Data is a key output of the Land Resource Assessment team's work. Can you tell the panel the principles that underpin your approach to the creation, curation and application of data?

• Accountability: Analyses data and trends to identify risks to project activities and empowers others to incorporate risk management into planning. (Demonstrates sound governance)
• Accountability: Embraces opportunities to expand knowledge and experience through networks, new assignments and development avenues (Pursues continuous growth)

1. Could you provide some examples of formal planning which you have applied to your work and tell us the benefits of having done so.

• Vision: Recognises and articulates how the team's work contributes to the organisation's vision and community outcomes (Leads strategically)
• Vision: Drives new thinking by encouraging others to share and debate ideas and data-driven, creative solutions (stimulates ideas and innovation)
• Results: Charts a clear direction for the team by consistently communicating the greater meaning and impact of the work undertaken (Inspires Others)

1. A colleague is exhibiting behaviours that don't fit with you or the team. How would you address this situation?

• Results: Implements reporting mechanisms to oversee the work of the team and provide appropriate levels of input (Drives accountability and outcomes)[57]

• [63] Arguing that non-technical questions would ordinarily encompass less than half of the questions posed during an interview,[58] Mr Biggs claims that if a comparison was completed of other PO5 roles, more than half of the questions posed to applicants would have a technical focus.[59]
• [64] In response, the Department contends that interview questions are not required to cover all position competencies. Moreover, that the five questions used for the PO5 Role adequately captured the Role Profile including 'ability to lead, manage and develop a team to deliver high quality service outcomes and ensure a culture of service delivery and high performance.'[60]
• [65] It is further submitted that the interview was Mr Biggs' opportunity to demonstrate his suitability for the role, by incorporating and emphasising relevant material within his application.[61]

Recruitment process relied too heavily on interview performance

• [66] Relying on Clause 7.2 of the Directive, which provides that the assessment process must 'take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)',[62] Mr Biggs maintains the process was overly weighted towards the interview and therefore non-compliant.
• [67] In response, the Department maintains the interview formed only part of the assessment and that the Selection Report demonstrates the Panel considered Mr Biggs' written applications along with his experience, skills and abilities.
• [68] It further submits the interview process was Mr Biggs' opportunity to demonstrate his suitability for the role and emphasise as much relevant material within his application that he deemed necessary.[63]

• [69] Mr Biggs maintains it is normal practice for panel members to ask alternative questions or provide prompts where there is a view that the interviewee has further information or insights which should be shared.[64]
• [70] Mr Biggs' recollects that during the interview he was not informed by the Panel that he had failed respond to any questions appropriately or sufficiently.[65]
• [71] Mr Biggs further questions how the successful applicants were able to adequately respond to all the interview questions, in circumstances where his inquiries suggested they had taken less time to respond.[66] While Mr Biggs acknowledges that time does not necessarily equate to the quality of answers provided, he submits it is unlikely that an applicant who used less than two-thirds of the interview time would have fully answered the questions.[67]

The technical and professional experience detailed by Mr Biggs in his resume, which is far superior to any of the other applicants, and well understood within LRAS, ought to have found him suitable or at the very least meritorious for the position.

• [72] Within his Appeal Notice, Mr Biggs includes an overview of his experience and evidence of his technical proficiency and leadership in the Land Resource Science profession.[68]
• [73] Mr Biggs submits that:

No other person in Queensland (and certainly not within the LRA&S group i.e. the potential pool of applicants) possesses a resume equivalent to mine, in terms of demonstrated skills and technical leadership in land resource science.'[69]

• [74] Mr Biggs maintains that an objective comparison of all applicants would, without any question, yield a determination that his professional and technical skill level was far superior to any other candidate.[70]
• [75] Mr Biggs contends, based on his own assessment of his skills and experience, that when compared to the other applicants he should have been deemed suitable for the position or at the very least, meritorious.[71]
• [76] In response, the Department maintains the assessment process incorporated selection techniques which enabled a sufficiently comprehensive assessment of Mr Biggs' merit within the context and duties of the role, and in accordance with the legislation and relevant Directive.[72]

• [77] It is submitted the panel sought to individually validate candidate experience through the content offered in written applications, and answers offered at interview.[73] Furthermore, that examples provided by the applicants, which demonstrated awareness of the complexity and impact of technical and non-technical decisions and supervisory responsibilities of a PO5 leadership role, were also considered.[74]
• [78] The Department observed that the panel identified leadership as a key quality it considered necessary and sought to assess in all candidates when determining whether they were meritorious.
• [79] The Department further submitted the panel, within its Selection Report, recognised Mr Biggs' experience as a technical professional, and that while it was evident he was a skilled technical individual, his responses did not demonstrate many of the key leadership attributes to support his application or merit for the position.[75]
• [80] It was noted that several applicants failed to satisfy the Panel, and that the Panel was consistent in its approach when considering each applicants' leadership qualities. The Department maintains that this demonstrates the process was genuine, fair, and transparent, without influence of bias or evidence of Mr Biggs being disadvantaged in any way.[76]
• [81] It is submitted by the Department that the panel members were unanimous in their view that Mr S and Ms W were meritorious, having regard to the applicants' work-related technical capability and the holistic work-related qualities required to perform the PO5 role. Although Mr Biggs believed he should have been considered meritorious, this view was not shared by any of the three panel members or the Delegate.[77]
• [82] In support of its position, the Department provided the Commission with a copy of the Selection Report,[78] which was approved by the Delegate and contained a merit assessment of all applicants, including Mr Biggs' assessment. In response to Mr Biggs' assessment and comparison between his skills and experience and those of other applicants, the Department contends that his claims are subjective and based on his own knowledge, whereas the Panel considered all factors throughout the selection process.[79]

The feedback provided to Mr Biggs is deficient, omits key details, and suggests a deliberate intention to cast his interview responses in a negative light

• [83] Mr Biggs' criticisms of the written feedback included the following:[80]
  • The feedback does not appear to be in accordance with the recommended practice in the Department's protocol and includes poor grammar and disconnected phrasing.
  • The feedback demonstrates a presumably deliberate, selective, negative view to the responses Mr Biggs provided during the interview process. It also appears to omit key elements of his responses.
  • The feedback demonstrates that matters beyond the bounds of relevant answers were considered.
  • The desired response to at least one question was dictated by the operational views of another agency, rather than the operational reality of the LRAS team.
  • The non-technical nature of the panel has compromised its ability to understand technical responses and the nature of the role.
• [84] Mr Bigg submits his post-interview discussions with the two successful applicants suggests their responses to many questions were similar, which in his view indicates comparative responses from applicants had been interpreted positively for some and negatively for others (namely, Mr Biggs).[81]
• [85] According to the Department, unsuccessful applicants including Mr Biggs were contacted by Microsoft Teams and advised they were unsuccessful. The Chair offered to provide verbal feedback to the applicant.[82]
• [86] Between 20 and 24 March 2023, attempts were made by the Panel Chair to engage with Mr Biggs regarding his feedback. However, Mr Biggs declined verbal feedback and requested written feedback.
• [87] Written feedback was provided to Mr Biggs on 11 April 2023.[83]
• [88] The Department contends Mr Biggs was provided with factual, constructive, and sensitively conveyed feedback, based on documents relied upon during the selection and recruitment process.[84]
• [89] Within his submissions, Mr Biggs compares his responses to that of the successful applicant, Mr S, and concludes that the panel deliberately ignored Mr Biggs' leadership qualities.[85]
• [90] In response, the Department maintains Mr Biggs' leadership qualities were not ignored, submitting the Selection Report clearly outlines the panel's consideration of his qualities which were demonstrated in both his written application and interview.[86]
• [91] The Department submits the Selection Report demonstrates there was no bias or selectivity when considering Mr Bigg's application. Moreover, that the report also includes positive comments, which ultimately demonstrates a balanced assessment of his application.[87]
• [92] Similarly, in response to concerns raised by Mr Biggs regarding 'evidence' of Mr S being a 'team player', the Department relies on the following comments contained within the Selection Report:[88]

At interview [Mr S] gave examples that demonstrated he is a team player and possesses the requisite leadership skills to provide a balanced and consistent approach as a senior member of the LRA team.[89]

• [93] The Department submits that the panel unanimously concluded that Mr S demonstrated this quality.
• [94] Mr Biggs also raises concerns that, upon reviewing the feedback provided by the Panel, he formed the view that question three was shaped by operational paradigms of another agency, with which Mr Potts would have been familiar. Consequently, Mr Biggs concludes that the Panel failed to understand the data management paradigms in place within the PO5's business area.[90]

• [95] In deciding an appeal against a promotion decision, the Commission may set the decision aside only where 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.[91]
• [96] The determination of this appeal turns on whether the outcome of the recruitment and selection process conducted by the Department, in which the Appellant was an applicant, was fair and reasonable.

The selection process was biased against Mr Biggs, downplaying his technical merit, to favour an applicant with less technical merit, namely Ms W.

• [97] Mr Biggs first ground of appeal is that the selection process was biased and designed to achieve a pre-determined outcome.
• [98] According to Mr Biggs, the measures or processes utilised to achieve this outcome included treating all applicants as equal in terms of technical merit and downplaying his own technical attributes, superior skills and experience, in order to favour Ms W. Mr Biggs also submitted that the limitation of applicants to a two-page cover letter during the application stage further supported his claim of a biased and predetermined outcome.
• [99] Mr Biggs contends these actions have resulted in the Department's non-compliance with s 44 of the PS Act and the accompanying principals underpinning recruitment and selection. Specifically, the obligation to ensure recruitment and selection processes are directed to the selection of the eligible person best suited to the position.
• [100] On the materials before me, I have not been persuaded that this ground of appeal has been established to the extent that it renders the promotion decision unfair or unreasonable.
• [101] I have reached this conclusion for several reasons, which are set out below.
• [102] Firstly, in addition to possessing the capacity to provide high level technical advice, a key responsibly of the PO5 role is to provide leadership and supervision of the PO4 professionals within the LRAS team.[92]
• [103] I accept, having regard to the position responsibilities and core competencies of the PO5 role, that it was critical for the panel to have given weight to leadership skills and experience when assessing each applicant.
• [104] Secondly, I have been unable to identify any evidence that supports the assertion that the Department actively sought to diminish Mr Biggs' technical merit in order to boost Ms W. I accept the panel was instead interested in understanding each applicant's ability to demonstrate an awareness of the complexity of both technical and non-technical decision-making, as well as the supervisory responsibilities of the PO5 leadership role.
• [105] Thirdly, it is clear from the shortlisting matrix and the selection report that Mr Biggs' extensive qualifications, including his Doctorate in Soil / Landscape Science, as well as his technical capabilities and leadership, were readily recognised and acknowledged by the panel. For example:

... Andrew is an experienced Senior Land Resources Officer who has across his 20 years, provided technical leadership in land resource assessment... He holds a PHD and is an active member in the academic sector.[93]

Andrew is a capable and experienced technical professional...[94]

...Andrew spoke to being at the forefront of technical developments and practices in land resource assessments and his interaction with the policy area of the agency including contributing to the revision of and development of several acts. Andrew outlined his extensive experience in managing projects including scientific research and soil survey and has worked collaboratively with a range of stakeholders.[95]

Andrew currently acts as Chair of the Australian Social and Land Survey Field Handbook Working group, National Committee Soil and Terrain, and is a member of the National Training Board of Soil Science Australia.[96]

• [106] Finally, while it is true that all applicants were afforded an opportunity to interview, and it does seem that comparatively, Ms W's involvement in various professional working groups was expressed in more positive terms than Mr Biggs, I am ultimately persuaded by the Department's submission that there is no evidence to support a finding that technical merit was not considered - either deliberately or otherwise - or that all of the applicants were assessed as having equal merit.
• [107] This conclusion is supported by content contained within both the shortlisting matrix and the selection report which; (a) captured the technical qualifications held by all applicants, (b) summarised technical experience, leadership and capabilities; and (c) where relevant, recorded responses that touched on both technical leadership and capability.
• [108] In my view, the Appellant has not satisfactorily demonstrated that the selection process was affected by bias against him.

The composition of the selection panel did not comply with the recommended practice outlined within the Department's Recruitment Protocol or normal operational practices, which led to a distortion in the selection process.

• [109] The second ground of appeal relates to an alleged failure by the Department to follow the Recruitment and Selection HR Protocol ('the Protocol') when appointing panel members, which, according to Mr Biggs, resulted in a distortion of the recruitment process.
• [110] Mr Biggs' key criticisms in respect of the failure by the Department to follow the Protocol when determining the composition of the panel included:

(a) Jacki Wirth, the direct Manager of LRAS, was not included on the recruitment panel;

(b) Stephen Potts did not possess technical expertise in land resource science and therefore cannot be regarded as a technical expert;

(c) Mr Potts should have declared a conflict of interest and disqualified himself from the selection process, having regard to the history of antagonism between the Department of Resources and the Department of Environment and Science;

(d) The non-technical nature of the panel compromised its ability to understand the differences between applicants, when considering merit; and

(e) The approach adopted by the Department when establishing the panel deviated from the standard practice.[97]

• [111] In my view, having considered both the relevant Directive and the Protocol, I am not satisfied the Department has failed to comply with either, for the reasons set out below.
• [112] The purpose of the Department's Protocol is listed as providing 'guidance to employees of the Department about undertaking a recruitment and selection process'.[98] Departmental employees are encouraged to read the protocol 'in conjunction with the PSC Recruitment and Selection Directive 12/20'.[99]
• [113] Under the heading 'Forming a selection panel', the following considerations are listed:[100]
  • A minimum of two members, equal to or above the classification level of the position are required, however a member may be at a lower classification level if they are required to contribute specialist knowledge to the panel.
  • Panel members can be fixed term temporary or permanent employees.
  • Ideally one member should be the current supervisor of the position being filled. This person is usually the hiring manager (panel chair).
  • At least one person on the panel has completed recruitment and selection panel training and/or has experience in recruitment and selection processes. Your local HR should be able to provide you with a list.
  • One member understands the technical or professional elements of the role.
  • Where possible, one member should be external to the immediate team of the position being filled.
  • All members must declare any conflict of interest with any of the applicants, and any declared conflict is to be appropriately managed (see the Conflict of Interest section in this document for further information).
  • The panel should be diverse. It is strongly encouraged to include a mix of gender, background, language and culture and diversity, including length of service with the organisation, previous roles and business areas.
  • Rainbow lanyards, which represent the department's commitment to diversity & inclusion, should be worn by at least one panel member.
• [114] While it is true that the Protocol states that consideration must be given to factors including that 'one member should be the current supervisor of the position being filled',[101] there is no requirement for such an inclusion.
• [115] Secondly, in circumstances where the Protocol states that consideration must be given to possible conflicts of interest, I accept it was not unreasonable for the Department to select a senior Manager in the position's reporting line 'to participate on the panel given the closed merit nature of the process' and its desire 'to provide a high degree of transparency and address any perceived conflicts of interest.'[102]
• [116] Under the Protocol, it is recommended that one member understands the technical or professional elements of the position.
• [117] Relevantly, the role of Principal Land Resource Officer (PO5) is a senior position with responsibilities that extend well beyond the provision of technical advice.
• [118] The role requirements within the position description are listed as a Bachelor's degree in Soil Science, Agricultural Science, Environmental Science, Earth Science or Natural Resource Management. Separately, in addition to possessing the capacity to provide high level technical advice and leadership in relation to Land Resource Assessment functions, other accountabilities of the role include supervision, staff performance, staff development, and leadership.[103]
• [119] It cannot be reasonably said that Mr Potts, who is currently the Director of Soil Catchment and Science with the Department of Environment and Science (DES), and possesses qualifications and experience in environment management and science, does not possess an adequate knowledge of the technical discipline for the purposes of participating in a selection panel for the PO5 role.
• [120] Nor could it be sensibly argued in this appeal that Mr Potts should have disqualified himself from the panel due to some historic antagonism between the Department of Resources and the Department of Environment and Science. This is particularly so in the absence of any evidence that would support a conclusion that Mr Potts was biased against Mr Biggs because of any prior interaction or tension between the two Departments.
• [121] Having regard to the materials submitted, I am persuaded that the composition of the panel appropriately included members who, for the reasons outlined above, satisfied the considerations within the Protocol. Although the decision in relation to the composition of the panel may not have been one that Mr Biggs would have made, I accept it was open to the delegate to approve the formation of the panel.

The interview process including the questions asked, weight allocated to the applicants' performance when assessing merit; in addition to opportunities for follow-up questions was at odds with established practices in the recruitment of technical roles.

• [122] Mr Biggs' primary concerns in respect of the interview process and assessment of merit can be summarised as follows:

(a) The interview questions were predominantly non-technical in nature notwithstanding the highly technical nature of the role;[104]

(b) The over reliance on non-technical questions during the interview process is a significant divergence from normal recruitment processes undertaken by the Department;[105]

(c) The panel, during the interview process, failed to provide prompts or advise Mr Biggs (or other interviewees) about any deficiencies in the way questions had been answered, which was at odds with processes he had been involved with previously;[106]

(d) Both successful applicants utilised a shorter period to respond to interview questions and in the case of Ms W, answered at least one question inadequately, which brings into question how Ms W could have been ranked above Mr Biggs;[107]

(e) The recruitment process relied too heavily on interview performance; and

(f) In relation to the assessment of merit, an objective comparison of all applicants would, without any question, yield a determination that [Mr Biggs'] professional and technical skill level is far superior to any of the other applicants.[108]

• [123] One of the primary issues brought forward by Mr Biggs' concerns, is that the selection panel have failed to comply with Clause 7.2 of the relevant Directive and moreover, s 28 of the PS Act.
• [124] That is to say, the question is whether, in making the decision not to appoint Mr Biggs to the PO5 role, the selection panel failed to:

(a) Incorporate selection techniques that enabled a sufficiently comprehensive assessment of Mr Bigg's merit within the current context and duties of the role; and

(b) Take into account the extent to which, relevant to carrying out the duties in question, Mr Biggs had the:

(i) Abilities;

(ii) Aptitude;

(iii) Skills;

(iv) Qualifications;

(v) Knowledge;

(vi) Experience; and

(vii) Personal qualities; and

(viii) The way in which Mr Biggs carried out any previous employment or occupational duties; and

(ix) The extent to which he has potential for development.

• [125] In my view, the panel has adequately considered the relevant matters referred to in s 28 of the PS Act in respect of Mr Biggs. Furthermore, having regard to Mr Biggs concerns outlined at paragraph [122] (a)-(f), I am satisfied the panel has complied with the requirements set out in Clause 7 of the relevant Directive.
• [126] There are several reasons for this, including:
  • The interview questions reasonably reflected the competencies against which the applicants would be assessed as set out in the Position Description.
  • The selection panel took reasonable steps to compare Mr Bigg's written application and interview responses to competencies identified within the role profile.
  • The assessment of Mr Bigg's as compared to Mr S and Ms W was not focused primarily or disproportionately on interview performance.
  • The is no direct evidence to support a conclusion the Department has established a non-technical panel and utilised non-technical interview questions for the purpose of deliberately downplaying Mr Biggs technical experience, abilities and expertise.
• [127] Mr Biggs submitted he was heavily involved in a functional review of the soil science area within the Department.[109] According to Mr Biggs, it was this initiative that eventually led to the creation of the PO5 positions.[110]
• [128] One of Mr Biggs' criticisms is that despite the highly technical nature of the PO5 role, a disproportionate number of non-technical questions were asked during the interview process. As best I understand, he considers this was one of the factors that led to his technical leadership and capability (either deliberately or otherwise) being downplayed or not considered to the extent that it should have.

• [129] The role profile for the Principal Land Resource Officer, PO5 included the following Key Duties and Accountabilities:[111]
  • Provide specialist scientific leadership, technical information and advice in support of land resource assessment priorities across the state, including participating constructively to plan and coordinate implementation of new directions, strategies and initiatives.
  • Provide comprehensive, high quality scientific and technical information and advice to management; other state, national and local government agencies; policy makers; industry; the community and other clients, on land resource assessment issues, legislation and associated policy.
  • Contribute to the development and implementation of business strategies, resources and processes that ensure achievement of corporate goa Is and objectives including providing high level technical advice on opportunities for improvement of Land Resource Assessment functions and operations.
  • Lead and coordinate staff to ensure the delivery of (single agency, multi-disciplinary or multiagency) priority projects by:
    • Monitoring, evaluating and reporting on outputs to ensure that the desired outcomes are achieved on schedule
    • Monitoring and enhancing staff performance, development and leadership to ensure a high level of effectiveness.
    • Fulfilling workplace safety and wellbeing obligations.
  • Recognise, provide professional advice on and address emerging issues and trends.
  • Investigate and resolve land resource issues and provide expert advice to clients on complex and/or contentious property and landscape related issues.
  • Using consultative and participative processes, lead the production of technical and peer reviewed reports, guidelines and papers relating to complex land resource management issues.
  • Participate constructively to plan and coordinate implementation of new directions, strategies and initiatives.
  • Manage and monitor work plans that clearly demonstrate an understanding of current workloads and report to management on emerging issues.
  • Negotiate projects with industry, collaborators and clients, to achieve strategic and operational outcomes of the Department.
  • Other duties as directed and required.
• [130] While it is clear from the role profile that certain responsibilities with the role are technical in nature and presumably require a high level of technical proficiency, in my view the leadership and supervisory components of the role are significant.
• [131] This conclusion is further supported by the stated Competences for the role, namely:[112]

As a Team Leader in the role of Principal Land Resource Officer the following competencies from the Leadership competencies for Queensland are most relevant to this role:

• Recognises and articulates how the team's work contributes to the organisation's vision and community outcomes (Leads strategically)
• Drives new thinking by encouraging others to share and debate ideas and data-driven, creative solutions (stimulates ideas and innovation)
• Analyses available data and supports others to identify essential information to uncover the cause of issues (makes insightful decisions)

• Charts a clear direction for the team by consistently communicating the greater meaning and impact of the work undertaken (Inspires Others)
• Implements reporting mechanisms to oversee the work of the team and provide appropriate levels of input (Drives accountability and outcomes)
• Drives autonomy in the team by empowering others to take ownership for the delivery and quality of outcomes achieved. (Drives accountability and outcomes)

• Promotes personal responsibility for the realisation of a health workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplaces)
• Embraces opportunities to expand knowledge and experience through networks, new assignments and development avenues (Pursues continuous growth)
• Analyses data and trends to identify risks to project activities and empowers others to incorporate risk management into planning. (Demonstrates sound governance)

• [132] The Key Duties and Accountabilities listed earlier in this decision, in concert with the Role Competencies, make it clear the Department was seeking a candidate who demonstrated not only technical leadership but also 'leadership in the human centred perspective'[113] for a role where supervision and leadership capabilities were a key requirement.

• [133] While I accept the interview process incorporated the use of more non-technical questions, it is my assessment that these questions adequately and proportionally aligned to several of the Accountabilities and Competencies referred to in the Position Description, as demonstrated by the table set out below:

Drives autonomy in the team by empowering others to take ownership for the delivery and quality of outcomes achieved (Drives accountability and outcomes).

Promotes personal responsibility for the realisation of a health (sic) workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplaces)

2. Can you tell us about a time that you have made a significant professional decision under pressure?

Analyses available data and supports others to identify essential information to uncover the cause of issues (makes insightful decisions).

Charts a clear direction for the team by consistently communicating the greater meaning and impact of the work undertaken (Inspires Others).

Promotes personal responsibility for the realisation of a health (sic) workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplaces).

3. Data is a key output of the Land Resource Assessment team's work. Can you tell the panel the principles that underpin your approach to the creation, curation, and application of data?

FAIR Data - findable, accessible, interoperable, and reusable (FAIR)

Analyses data and trends to identify risks to project activities and empowers others to incorporate risk management into planning (Demonstrates sound governance)

Embraces opportunities to expand knowledge and experience through networks, new assignments, and development avenues (Pursues continuous growth)

4. Could you provide some examples of formal planning which you have applied to your work and tell us the benefits of having done so?

Recognises and articulates how the team's work contributes to the organisation's vision and community outcomes (Leads strategically)

Drives new thinking by encouraging others to share and debate ideas and data-driven, creative solutions (stimulates ideas and innovation)

Charts a clear direction for the team by consistently communicating the greater meaning and impact of the work undertaken (Inspires Others)

5. A colleague is exhibiting behaviours that don't fit with you or the team. How would you address this situation?

Implements reporting mechanisms to oversee the work of the team and provide appropriate levels of input (Drives accountability and outcomes)

Promotes personal responsibility for the realisation of a health (sic) workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplace)

• [134] For these reasons, I accept the Respondent's position that the questions put to Mr Biggs and other applicants during the interview process, while not necessarily covering all position competencies and responsibilities, adequately and proportionately captured key elements of the Role Profile, including the ability to lead, manage and develop a team, and foster a culture of high performance.

The selection panel adequately compared Mr Bigg's responses in both the application and interview stages to the relevant competences and accountabilities

• [135] Having regard to the matrix set out above and for the reasons given below, I find that the selection panel adequately and fairly considered the information provided by Mr Biggs in his application and interview against the competencies and responsibilities in the Role profile, and that it took the same approach in respect of Mr S and Ms W.
• [136] Within the submissions attached to his Notice of Appeal, Mr Biggs submitted:[116]

... It is not difficult to objectively state that no other person in Queensland (and certainly not within the LRA&S group i.e. the potential pool of applicants) possesses a resume equivalent to mine, in terms of demonstrated skills and technical leadership in land resource science.

• [137] In support of this conclusion and his concerns about the alleged failure of the Department to adequately assess merit and technical leadership, Mr Biggs refers to his more than 32 years of experience in land resource science, in addition to his accreditation background, advisory board involvement, formal academic qualifications, project work, academic achievements, and supervisory experience.[117]
• [138] In response to Mr Bigg's submissions about his qualifications and involvement on advisory boards and committees, the Department argues these factors do not provide unequivocal evidence of 'leadership' in either the context of technical leadership or 'leadership' in the general sense.[118]
• [139] In subsequent submissions, Mr Biggs provided greater insight into why he considered the Department was biased in its assessment of him, observing:[119]

...the selection report for Kristie Williams specifically mentions her participation in the professional body (Soil Science Australia) and even incorrectly states she is the Qld Branch President (she is the immediate past-President). The selection report indicates "She is an active member, and acts on the executive of a range of professional soil science bodies and working groups.". The selection report makes no such statement for me, despite my extensive list of past and current roles in the professional body (noted in my application), including the same or higher roles that Kristie has undertaken. The selection Panel simply note that I have served on the CPSS Board.

The panel comment upon Kristie's role in the current national conference organising committee but make no mention of my role on the organising committee of multiple conferences, in particular the World Congress of Soil Science (noted in my application). In my opinion, this demonstrates a pattern of selective representation of my demonstrated leadership skills, in both technical and non-technical environments.

Similarly, the selection report makes no note of other items that have demonstrated my technical and nontechnical leadership within and external to the agency - for example, my development of the Technical Professional Curriculum for Land Resources in the Department - the first of its kind in the agency. The fact that over the last 3 years I have been Chair of the Australian Soil and Land Survey Field Handbook Working Group and led the largest review of pedological standards in Australia in the last 40 years did not appear to be noteworthy to the assessment panel. Nor was the fact that I was the only applicant who is an accredited soil scientist under the national professional accreditation scheme.

• [140] In response, the Department contends the Appellant's full application was considered, including his written application, resume, and interview responses. Thereafter, the panel unanimously agreed that Mr Biggs had failed to sufficiently demonstrate technical leadership, as well as leadership from a broader human-centred perspective.[120]
• [141] I have had an opportunity to read the Selection Matrix, Selection Report Template and the written feedback in relation to Mr Biggs.[121]
• [142] In the selection report, in respect of Mr Biggs, the selection panel stated:[122]

Andrew is an experienced Senior Land Resources Officer who has across his 20 years, provided technical leadership in land resource assessment, not only within the Queensland Government, but across the soil science community. He holds a PHO and is an active member in the academic sector.

Andrew holds a bachelor's degree in Agricultural Science (Land Resource management stream), and a Master's qualifying in Agricultural Science. He completed a PHD in soil/landscape science from the University of Queensland in 2013. Andrew currently acts as Chair of the Australian Social and Land survey Field Handbook Working group, National Committee Soil and Terrain, and is a member of the Nation Training Board of Soil Science Australia.

Andrew's CV and covering letter were assessed as suitable by the panel. In his application Andrew outlined his technical leadership both within the agency and externally, including the invitation to representing the soil survey discipline on the Certified Professional Soil Scientist Board of Australia.

Andrew spoke to being at the forefront of technical developments and practices in land resource assessment and his interaction with the policy area of the agency including contributing to the revision of and development of several acts. Andrew outlined his extensive experience in managing projects including scientific research and soil survey and has worked collaboratively with a range of stakeholders.

At interview the panel noted that the complexity of his examples was lacking for example: he spoke of a drilling project where there was significant ministerial interest thus creating extra stress on the team - but in his response did not elaborate on how risks were managed, or what factors he considered to manage the pressure. The panel offered a follow up question, 'how do you stay calm'? The response was 'Sometimes I don't'.

Andrew told the panel that he leads by example in a collaborative and consultative manner. He discussed providing opportunities to others to develop their skills and technical leadership using collective brain power, He discussed the need to balance the objectives of what you are trying to achieve with the time pressures, and ensuring that those involved understand the why, and the impacts of the task. He also spoke to the highly technical nature of the work that is completed and the need to be cognisant of the levels of knowledge and understanding and cater to the needs of individuals.

The answers provided were satisfactory from a process perspective however, Andrew did not convey his insights into leadership from a Human-centred perspective or reflect on the Human interactions and how they may influence the delivery of outcomes for the LRA team. As an example, he cited breaches of HR rules as requiring a formal approach and discussed his view through the lens of 'Victim' vs 'perpetrator', The panel felt that this was an indication that Andrew's leadership style needed a broader approach, including engaging with the employee and considering capability uplift.

Andrew is a capable and experienced technical professional but many of the other key leadership attributes including technical leadership in a project context were not reflected in his answers at interview. The panel noted that the questions posed were not answered comprehensively, or with specificity about his role in the scenarios he used to demonstrate his suitability. The panel concluded that whilst it may have been evident that this was a skilled technical individual, Andrew's responses did not support his application or merit as a Principal Land Resources Officer.

• [143] Having regard to the content in the selection report and the matrix, it is clear the panel referenced and acknowledged Mr Biggs's significant length of service, technical leadership, academic qualifications (including his Doctorate), and involvement in academic pursuits.[123]
• [144] The panel also noted Mr Biggs' involvement on various boards and working committees, and referenced his involvement in land resource assessments, policy development, scientific research, and project management.[124] The inclusion of this information in the selection report demonstrates, in my view, that the assessment was not primarily or unfairly focussed on the interview process.
• [145] The panel took a similar approach with Mr S and Ms W, referencing their respective experience, qualifications, and (where relevant) involvement in working groups and professional bodies.[125]
• [146] Mr Biggs claims no other person in Queensland possesses a resume equivalent to his in respect of demonstrated skills and technical leadership.[126]
• [147] Certainly, if the selection process involved consideration of only the factors set out above in paragraphs [144] and [145], it is possible that an objective assessment would likely confirm that Mr Biggs, at least in comparison to Mr S and Ms W, was the more skilled and experienced of the three.
• [148] However, the challenge for Mr Biggs in respect of this Appeal, is that during the recruitment process he had the task of demonstrating his merit for the PO5 role, which was a new role that encompassed leadership and supervisory responsibilities, in addition to technical capability.
• [149] To do this, Mr Biggs was required to demonstrate, at all stages of the recruitment process, that he had the proven abilities, skills, and competencies to be able to perform the key responsibilities of the new role. Relevantly, the core competencies the panel were seeking, included:[127]
  • Drives autonomy in the team by empowering others to take ownership for the delivery and quality of outcomes achieved (Drives accountability and outcomes);
  • Promotes personal responsibility for the realisation of a health (sic) workplace through regular communication feedback and sharing of observations and outcomes (Fosters healthy and inclusive workplace)
  • Recognises and articulates how the team's work contributes to the organisation's vision and community outcomes (Leads strategically)

• Analyses data and trends to identify risks to project activities and empowers others to incorporate risk management into planning (Demonstrates sound governance)

• [150] Having regard to the leadership and supervisory responsibilities, the core competencies, the interview questions, and the feedback provided to Mr Biggs, it is clear the selection panel was seeking not only a capable and experienced technical professional, but also a leader who could:
  • accommodate different working styles;
  • effectively manage behavioural issues and conflict in a team;
  • collaborate and consult; and
  • provide leadership, direction and support to a team.
• [151] Although Mr Biggs' technical capabilities and leadership were acknowledged and recognised, and the answers he provided during the interview were acceptable from a process perspective, the panel concluded Mr Biggs struggled to provide specific examples addressing the relevant requirements. In particular, he 'did not convey his insights into leadership from a human-centred perspective or reflect on the human interactions and how they may influence the delivery of outcomes for the LRA team_._'[128]
• [152] This conclusion was supported by examples in the selection report and, later, in feedback material provided to Mr Biggs regarding various responses he gave during the interview. The panel concluded that 'Andrew's leadership style needed a broader approach, including engaging with the employee and considering capability uplift'[129] and that 'better discussions around this example may have included how other team members contributions to the plan were encouraged or acknowledged.'[130] Finally, the panel observed that 'Andrew... did not specifically... provide insight into the leadership qualities that he would bring to the role under such circumstances.'[131]
• [153] In this Appeal, one of Mr Biggs primary concerns is that the selection process was designed (deliberately) towards achieving a specific pre-determined outcome - namely, to downplay his technical merit in order to favour an applicant with less technical merit, specifically Ms W.[132]
• [154] Other than Mr Biggs assertions within his own submissions about how and why this may have occurred,[133] I have been unable to identify any compelling objective evidence within the materials that supports such a conclusion. In addition, having regard to the selection report and the interview process, there is nothing on the face of the materials filed in the Commission to suggest the interview process, including the questions asked, was deliberately designed to diminish Mr Biggs' technical capabilities or leadership.
• [155] It is true that Ms W, unlike Mr Biggs, does not have a PHD and has less experience in leading a team.[134] It also seems to me that her involvement in committees, conferences, working groups and representing the Department has been cast, within the selection report, in a particularly positive manner when compared to Mr Biggs.
• [156] It is also not in contention that the panel considered some of the examples she provided lacked breadth and depth, compared to the most meritorious applicant.[135]
• [157] However, on their own, and in the absence of any compelling evidence to support a conclusion there has been a deliberate attempt to downplay Mr Biggs' merit, these factors are not enough to persuade me that the recommendation of the selection panel and the decision was not fair and reasonable.
• [158] It seems to me, that when recruiting for the PO5 position, the Department was seeking a candidate who not only possessed technical expertise and leadership capabilities but who also demonstrated a specific approach to leadership aligned with the Department's preferred management style.[136]
• [159] In my view, this approach can be observed in the merit assessments for Mr S and Ms W, as well as the comparative assessment in relation to the most meritorious applicant.
• [160] For example, in the selection report, in respect of Mr S, the selection panel stated:[137]
  • Mr S provides specialist scientific leadership, technical information, and advice in support of land resource assessment priorities.
  • Mr S has experience across Queensland in soils and landscape science, with a demonstrated commitment to leadership within the state-wide team.
  • Mr S spoke to 'bridging the gap' between the technical and non-technical, with a vision to grow team capability and achieve agency priorities.
  • Mr S is committed to supporting colleagues to grow their knowledge and deliver quality service that meets technical standards and legislation.
  • At interview, Mr S demonstrated leadership and teamwork through examples including RIDA technical decisions and end-user focused projects.
  • Mr S curates data using SALI and applies statistical tools and rules to identify anomalies, aiming to convert soils data into meaningful technical advice.
  • Mr S describes his leadership as flexible, pragmatic, democratic, and adaptable, supporting individuals to be heard and influence decisions.
  • Mr S demonstrated self-awareness, flexibility, professional maturity, and outlined specific strategies to problem solve and work productively with different leaders.
• [161] The Selection Panel emphasised Mr S's strong leadership capabilities, noting his well-developed strategic thinking, focus on team wellbeing and productivity, and ability to build relationships across teams and stakeholders to effectively deliver technical objectives.
• [162] Mr S's purported calm, structured, and clear communication during the interview, along with strong referee reports, further reinforced the panel's emphasis on his capability to lead and communicate effectively, suggesting these qualities were central to their evaluation.[138]
• [163] With respect to Ms W, the Selection Panel presented the following findings in their merit assessment, summarised below:[139]
  • Ms W's application addressed the key accountabilities of the role from both a technical and leadership perspective demonstrated through positions such as President of the Qld Branch of Soil Science Australia and Deputy Chair of the Scientific Committee for the 2023 National Conference, both positions offered in recognition of expertise and leadership.
  • Ms W provided examples of diverse technical experience across a wide range of land resource issues, with demonstrated provision of specialist scientific leadership, technical information, and advice to professional forums and working groups.
  • Ms W demonstrated a strong understanding of regulatory requirements was evident, along with the ability to balance technical assessments and advice with agency responsibilities and stakeholder needs.
  • Ms W provided examples of positive stakeholder engagement across state, national, and local government, policy makers, and industry which she shared was linked to long-term business and strategic planning outcomes.
  • While interview examples were not complex, the panel recognised clear leadership acumen, understanding of the strategic intent of the LRA unit, and a commitment to scientific integrity, environmental considerations, and collaborative project delivery within technical standards and legislation.
• [164] As with Mr S, the panel's conclusions highlighted Ms W's interpersonal, communication, and leadership skills, noting that she was approachable, worked effectively with other officers, and understood the value of strong relationships across teams and with critical stakeholders.
• [165] The panel also emphasised Ms W's 'soft skills,' particularly her ability to navigate difficult human resource matters through one-on-one check-ins, negotiation, respect, honesty, and taking responsibility for achieving outcomes.
• [166] While the panel highlighted Ms W's diverse technical skillset, expert knowledge and relevant project experience within land resources, its conclusions also placed significant emphasis on her leadership and communication skills.[140]
• [167] This view is reiterated in correspondence contained in Attachment 7 of the Respondent's submissions, where the panel reported to the delegate that Ms W:[141]

...demonstrated leadership qualities that she currently exercises with her immediate the team and importantly, across her professional cohort. Many of these examples illustrated her superior skills (emphasis added) in dispute resolution and bringing people together to work to achieve outcomes for the QLD government. On balance the panel felt that [Ms W] could fulfil the role and be able to manage professional relationships well.

• [168] I am satisfied that, while Mr Biggs may have considered technical experience, skills and expertise to be amongst the more critical attributes for the role, it was within the panel's prerogative to deem meritorious those applicants they felt best met both the technical and interpersonal/leadership requirements of the position.
• [169] Similarly, within the Selection Report, the Department provided a comparative assessment of the recommended applicants.[142]
• [170] While Ms W's tenure with the Department was shorter, and she lacked some seniority compared to Mr Biggs, it is evident that, in their assessment of merit, the panel deemed her leadership qualities and interpersonal approach to be highly aligned with the needs of the role.
• [171] The panel considered Ms W to have great self-awareness and courage in thought and intent and assessed her responses in relation to engagement and collaboration as stronger than those of the broader candidate pool. This indicates the Department placed a high value on Ms W's leadership style, professional approach, and alignment with organisational values.
• [172] Ultimately, the determination of an applicant's fitness and suitability for the role rests with the selection panel.
• [173] In exercising their judgment, the panel members concluded Ms W demonstrated a superior aptitude for the leadership qualities required and preferred her approach over that of those candidates deemed not meritorious.
• [174] For all of these reasons, I cannot form the view that, in selecting Mr S and Ms W as meritorious for the role, and determining that Mr Biggs was not, the panel abandoned the merit principle under s 28 of the PS Act or failed to comply with Clause 7 of the Directive.[143]

The feedback provided to Mr Biggs is deficient, omits key details and suggests a deliberate intention to cast his interview responses in a negative light.

• [175] It is not in contention that Mr Biggs declined verbal feedback and instead requested written feedback, which was subsequently provided.[144]
• [176] In his submissions, Mr Biggs raised concerns that the feedback provided to him was poorly written and appeared to be copied from the selection report without proper attention to making it coherent.[145] Mr Biggs submitted the feedback presented a selective and negative account of his responses, omitting key elements.[146]
• [177] Mr Biggs also relied on the written feedback provided by the Department to re-visit his concerns about the quality and relevance of the questions, suggesting the panel considered matters beyond the scope of the interview, relied on another agency's operational views, and lacked the technical expertise necessary to fully understand his responses and the role.[147]
• [178] The Department's position is that the feedback was factual, constructive, sensitively conveyed, and based on documents relied on to conduct the selection and recruitment process, including comprehensive notes taken during the interview.[148]
• [179] The issue to be determined here is whether the Department complied with the relevant Directive in respect of its obligations to provide post-selection feedback.
• [180] Clause 10 of the Directive provides:[149]
  1. Post selection feedback
     • 10.1 Subject to clause 10.2 all applicants are to be advised that they may request feedback.
     • 10.2 Graduate applicants who are interviewed are to be advised they are entitled to request feedback.
     • 10.3 Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel sufficient to explain the panel's recommendation and the decision maker's decision.
• [181] Even within Mr Biggs own submissions, the specificity of the feedback from the panel is evident. In my view, the feedback was, for the most part, constructive and detailed.
• [182] That Mr Biggs did not agree with the conclusions reached by the panel in respect of his responses, or that he holds a different opinion about the relevance of a question posed during the interview, is not a relevant consideration in determining whether the Department complied with Clause 10 of the Directive.
• [183] On balance, whilst Mr Biggs may not have appreciated the feedback, it is my view that the requirements of the Directive in respect of Clause 10, have been met by the Department.
• [184] For these reasons, I am not persuaded that on the basis of the feedback the panel provided, the decision was unfair or unreasonable.
• [185] Despite this, I consider it would have been beneficial for the panel to have taken additional time to better capture and highlight the more positive aspects of Mr Biggs' performance during the selection process. This is particularly so given the long-standing nature of his employment and what appears to be an impressive and noteworthy career in providing scientific leadership, technical advice, and support in land resource assessment.

• [186] I do have some sympathy for Mr Biggs, particularly where it appears on his submissions that he was heavily involved in the initiative that led to the creation of the PO5 roles that were in the end, offered to two of his colleagues.
• [187] On his own submissions, it seems that Mr Biggs held an expectation that he and Mr S would be the successful applicants. According to Mr Biggs:[150]

the 'certainty' of the outcome (in terms of Mr S and myself being the successful applicants) was openly discussed and known within and outside the team.

• [188] If that was the case, I can appreciate why Mr Biggs was disappointed with the outcome of the recruitment process.
• [189] However, after considering the submissions of the parties and having regard to the process undertaken by the selection panel, I am unable to identify any deficiency in the process that would allow me to set aside either the decision to appoint Mr S, or to rank Mr S and Ms W as meritorious.
• [190] Although I can appreciate this outcome is undoubtedly disappointing for Mr Biggs, he has not satisfied the onus placed on him, in making this appeal.
• [191] The selection process conducted by the Department was not deficient, as it complied with the PS Act, Recruitment and Selection Directive and Protocol.
• [192] For the reasons outlined above, I find that the recruitment and selection process was fair and reasonable.

• [193] Mr Biggs has raised concerns about the delay in the gazettal of the promotion decision. Certainly, it is the case that promotion decisions arising out of an advertised vacancy must be notified in the gazette within one month.
• [194] However, I accept that peripheral factors, including a decision by Ms W not to accept the role, impacted these timeframes.
• [195] I am also satisfied the delay is not a deficiency that would lead to a conclusion that the Promotion decision was not fair and reasonable and ought to be set aside.
• [196] I order accordingly.

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

[1] Respondent's submissions filed 21 June 2023, [2].

[2] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed' dated 27 February 2023.

[3] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules'), the names of the successful applicants have been anonymised because they are not respondents to this Appeal.

[4] Respondent's submissions filed 21 June 2023 (n 1) [39].

[5] Queensland Government Gazette, No 21, 2 June 2023, 142.

[6] Form 89 - Appeal notice filed 2 June 2023 ('Appeal notice').

[7] Public Sector Act 2022 (Qld) s 131(1)(e).

[8] Appeal Notice (n 6) Attached Submissions, 1.

[10] Industrial Relations Act 2016 (Qld) s 562B(3) ('Industrial Relations Act').

[11] Ibid s 562B(2); Goodall v State of Qld & Anor [2018] QSC 319, 5 (Dalton J).

[12] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[13] Industrial Relations Act (n 10) s 562B(3).

[17] Respondent's submissions filed 21 June 2023 (n 1) [12].

[18] Ibid, Attachment 1 'Role Profile / Job Advertisement', December 2022.

[19] Respondent's submissions filed 21 June 2023 (n 1) [21].

[20] Ibid, Attachment 1 'Role Profile / Job Advertisement', December 2022, 2.

[21] Respondent's submissions filed 21 June 2023 (n 1) [16].

[22] Respondent's secondary submissions filed 19 July 2023 [5].

[23] Ibid, Attachment 'Jeanette Lipczynski Statutory Declaration' dated 12 July 2023 [2].

[24] Respondent's submissions filed 21 June 2023 (n 1) [22].

[26] Ibid, Attachment 7 'Email Correspondence - Panel Chair and Delegate (and relevant Attachments)', dated February-March 2023.

[27] Appeal Notice filed 2 June 2023 (n 6) Attachment 5 'Written feedback provided by Director Jude to me', 50-53.

[29] Appeal Notice (n 6) Attached Submissions, 3.

[32] Ibid, Attachment 2 'Statutory Declaration of Ms W' dated 24 March 2023, 24-30.

[35] Appellant's Reply Submissions filed 5 July 2023, [1].

[36] Respondent's submissions, 21 June 2023 (n 1) [11].

[38] Ibid, Attachment 3 'Recruitment and Selection HR Protocol - HR Protocol', 1 February 2021.

[39] Ibid, Attachment 1 'Role Profile / Job Advertisement', December 2022.

[40] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023.

[41] Respondent's submissions, 21 June 2023 (n 1) [14]-[15].

[44] Panel members have been listed at [20].

[45] Appeal Notice (n 6) Attachment 3 'Department of Resources Recruitment and Selection Protocol', 4.

[47] Appellant's Reply Submissions filed 5 July 2023 (n 35), 3.

[48] Respondent's submissions, 21 June 2023 (n 1) [17].

[51] Respondent's secondary submissions filed 19 July 2023 (n 22), [10].

[52] Respondent's submissions filed 21 June 2023 (n 1), [26]; Respondent's secondary submissions filed19 July 2023 (n 22), [9]-[10].

[53] Appellant's reply submissions filed 5 July 2023 (n 35), 2; Appellant's further submissions filed 4 August 2023, 2.

[54] Appellant's reply submissions filed 5 July 2023 (n 35), 2.

[55] Appeal Notice (n 6) attached submissions, 5.

[56] Respondent's submissions filed 21 June 2023 (n 1), [22].

[57] Ibid, Attachment 6 'Interview Questions', this is a copy of the Panel's questions, the 'Looking for' additions were not provided to the applicants.

[58] Appeal Notice (n 6) Attached Submissions, 5.

[60] Respondent's submissions filed 21 June 2023 (n 1), [22]-[23].

[62] Directive 12/20 - Recruitment and Selection.

[63] Respondent's submissions filed 21 June 2023 (n 1), [23].

[64] Appeal Notice (n 6) Attached Submissions, 6.

[72] Respondent's submissions filed 21 June 2023 (n 1), [27].

[78] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed' dated 27 February 2023.

[80] Appeal Notice (n 6) attached submissions, 9.

[82] Respondent's submissions filed 21 June 2023 (n 1), [40].

[85] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed' dated 27 February 2023.

[86] Respondent's secondary submissions filed 19 July 2023 (n 22), [17].

[89] Respondent's submissions filed 21 June 2023 (n 1), Attachment 4 'PO5 Selection Report - Panel Signed' dated 27 February 2023, 2.

[90] Appeal Notice (n 6) Attached Submissions, 11.

[91] Industrial Relations Act (n 10) 562C(2).

[92] Respondent's submissions filed 21 June 2023 (n 1) Attachment 1 'Role Profile / Job Advertisement', December 2022.

[93] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023, 6; Attachment 7 ''Email Correspondence - Panel Chair and Delegate' containing Short-listing Matrix, 1.

[94] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023, 7.

[97] Appeal Notice (n 6) Attached Submissions, 4-5.

[98] Respondent's submissions, 21 June 2023 (n 1), Attachment 3 'Recruitment and Selection HR Protocol - HR Protocol', 1 February 2021, 1.

[102] Respondent's submissions, 21 June 2023 (n 1) [18].

[103] Ibid, Attachment 1 'Role Profile / Job Advertisement', December 2022.

[104] Appeal Notice (n 6) Attached Submissions, 5.

[111] Respondent's submissions filed 21 June 2023 (n 1) Attachment 1 'Role Profile / Job Advertisement', December 2022, 1.

[113] Respondent's secondary submissions filed 19 July 2023 (n 22), [15].

[114] Appeal Notice filed 2 June 2023 (n 6) Attachment 5 'Written feedback provided by Director Jude to me', 50-53.

[115] Respondent's submissions filed 21 June 2023 (n 1) Attachment 1 'Role Profile / Job Advertisement', December 2022, 2.

[116] Appeal Notice (n 6) Attached Submissions, 6.

[118] Respondent's secondary submissions filed 19 July 2023 (n 22),

[119] Appellant's reply submissions filed 5 July 2023 (n 35), 4.

[120] Respondent's secondary submissions filed 19 July 2023 (n 22) [14]-[15].

[121] Respondent's submissions filed 21 June 2023 (n 1), Attachment 4 'PO5 Selection Report - Panel Signed' dated 27 February 2023, 6-7;

[126] Appeal Notice (n 6) Attached Submissions, 6.

[127] Respondent's submissions filed 21 June 2023 (n 1) Attachment 1 'Role Profile / Job Advertisement', December 2022, 2.

[128] Ibid, Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023, 6; Attachment 7 ''Email Correspondence - Panel Chair and Delegate' containing Short-listing Matrix, 7.

[130] Appeal Notice filed 2 June 2023 (n 6) Attachment 5 'Written feedback provided by Director Jude to me', Question 4, 3.

[132] Appeal Notice filed 2 June 2023 (n 6) Attached Submissions, 2.

[134] Respondent's submissions filed 21 June 2023 (n 1) Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023, 2.

[136] Ibid Attachment 7 'Email Correspondence - Panel Chair and Delegate (and relevant Attachments'

[137] Respondent's submissions, 21 June 2023 (n 1) Attachment 4 'PO5 Selection Report - Panel Signed', 27 February 2023, 'Mr S Merit Assessment' 1-2.

[138] Respondent's secondary submissions filed 19 July 2023 (n 22) 2.

[141] Attachment 7 'Email Correspondence - Panel Chair and Delegate (and relevant Attachments)' 6.

[142] Respondent's secondary submissions filed 19 July 2023 (n 22) 8.

[143] Directive 12/20 - Recruitment and Selection, cl 7.

[144] Respondent's submissions filed 21 June 2023 (n 1) [40]; Appeal Notice (n 6) Attached Submissions, 9.

[145] Appeal Notice (n 6) Attached Submissions, 9.

[148] Respondent's submissions filed 21 June 2023 (n 1) [41].

[149] Directive 12/20 - Recruitment and Selection, cl 10.

[150] Appeal Notice (n 6) Attached Submissions, 3.