Cleary v State of Queensland [2022] QIRC 416 | Case summary

Queensland Industrial Relations Commission|2022-10-31|Before: Dalton J

PUBLIC SERVICE - CLASSIFICATION, PROMOTION OR TRANSFER - whether the recruitment and selection process was deficient - consideration of mandatory assessment processes under Directive 12/20 Recruitment and Selection - consideration of merit and process - where appellant argued interview questions were too narrowed - consideration of panel composition - where appellant argued materials demonstrated bias - decision fair and reasonable - appeal dismissed

Directive 12/20 Recruitment and Selection cl 7, cl 8

Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) [2022] QIRC 361

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

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

[1] Mr Mark Cleary (the Appellant) appeals against a promotion decision of the Department of Resources, State of Queensland (the Department; the Respondent).

[2] The Department advertised the vacant position of Manager, Operational Policy, Surveying Services, Land and Surveying Services, Lands Division (AO8) (the promotional position) with a closing date of 27 April 2022.

[3] The Department received seven applications, of which three applicants were shortlisted.

[4] On 5 May 2022, the three shortlisted applicants were interviewed. Each shortlisted applicant was subsequently merit listed.

the Department completed referee checks on the shortlisted applicants;

the Department requested that the shortlisted applicants complete a Declaration of Previous Disciplinary History; and

an external consultant and the panel chair completed a selection report that recommended Mr John Kenny (the promotional appointee) for the promotional position and merit listed the Appellant as second.

[6] On 12 May 2022, the Selection Report was signed off by the panel and approved by the delegate.

[7] On 13 May 2022, the Appellant was verbally advised of the outcome and provided with feedback by the panel chair.

[8] On 10 June 2022, the appointment outcome was advertised in the Queensland Government Gazette No 26 (the promotion decision).

[9] On 17 June 2022, the panel chair provided the Appellant with written feedback at his request.

[10] On 30 June 2022, the Appellant appealed the promotion decision.

[11] In my view, the promotion decision appealed against was fair and reasonable, as the selection process was not deficient.

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

[14] Section 196(c) of the PS Act prescribes that a public service employee aggrieved by a promotion decision who is entitled to appeal under a directive may appeal.

[15] Clause 5.2(e) of Directive 07/20 Appeals (the Appeals Directive) stipulates an array of requirements with respect to who may lodge an appeal against a promotion decision. The parties do not dispute that the Appellant meets those requirements. It is clear the promotion decision related to a gazetted promotion, the Appellant's application was received on or before the nominated deadline, and there was an appropriate request by the Appellant for post-selection feedback from the Department.

[16] I am satisfied that the promotion decision, as contained in the gazetted notice of 10 June 2022, constitutes a decision made by the Department and is capable of appeal pursuant to s 194(1)(c) of the PS Act..

[17] The appeal is decided by reviewing the decision "to decide whether the decision appealed against was fair and reasonable".[1]

[18] The appeal is not conducted by way of re-hearing but rather involves a review of the decision arrived at by the Department and the associated decision-making process.[2]

[19] Section 562B(4) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission -

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

[20] A decision made by the Department, which was reasonably open to it, should not be disturbed on appeal.

[21] Section 562C(1) of the IR Act prescribes that the Commission may determine to either:

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.

[22] The Commission may only set aside a promotion decision if they find that the recruitment or selection process was deficient.[3]

[23] In determining whether there was such a deficiency, the Commission must consider whether the recruitment and selection process complied with the PS Act, a regulation or a directive of the commission chief executive.[4]

[24] It is necessary, in determining whether the promotion decision was fair and reasonable and whether the recruitment and selection process was deficient, to consider the Appellant's submitted grounds of appeal.

[25] The Appellant's grounds of appeal pertain to the issue of merit, interview questions, panel composition, bias and the referee report. The Appellant submits:

the selection panel did not make a fair and reasonable merit assessment as required under the PS Act and Directive 12/20 Recruitment and Selection (the Recruitment and Selection Directive);

the outcome demonstrates that the selection panel did not give regard to other merit information beyond the interview questions;

the chair of the selection panel indicated the panel had assessed leadership skills and experience, and that their assessment of these skills and experience was the determining factor in selecting the successful candidate;

the Appellant is unaware of the promotional appointee having any experience in the majority of the key duties of the position;

in the absence of weightings and rankings of the competencies and key duties, the Department does not address how the candidates demonstrated merit against each of the key attributes;

the 'Role Requirements' state that "experience in policy and legislation will be highly regarded" - however, this is not reflected in the interview questions nor in the Selection Report, and there is no mention of this element in assessing merit of the candidates;

many statements within the Department's written submission are not supported by the Selection Report or Interview Note;

statements within the Department's written submission as to why the promotion appointee was more meritorious are disputable;

neither the Selection Report nor the Department's written response demonstrate that the panel considered merit against all of the key attributes of the role as laid out in the Role Profile or how experience in policy and legislation development, or the lack thereof, was considered in determining the merit;

the interview questions only addressed a small portion of the competencies and key duties of the role;

the interview questions did not cover the majority of elements within the Role Profile;

during interview, both scripted questions were narrowed to specific circumstances and the majority of competencies were not covered;

the interview questions were not structured to elicit from the candidates skills in the experience relevant to the vast majority of the duties of the position, and therefore, the full range of competencies required to be demonstrated by the successful candidate;

the previous incumbent wrote the Role Profile but was not part of the panel or consulted on the framing of the interview questions;

the interview panel members have never worked in an even similar unit or role;

the overall panel discussions in the Interview Notes from the external consultant indicate a bias by the panel members against current members of the work unit - with reference to "team having issues" and needing to have "significant change" - issues that were not raised with the Appellant;

the Selection Report shows a bias in negatively referring to the Appellant being prompted on Performance Development Agreements in the hypothetical team leader dispute scenario, yet does not mention the number of times that the promotion appointee was prompted for responses as recorded in the Interview Notes from the external consultant;

the Selection Report shows a bias in stating that "more insight on his leadership style would have been preferable", yet there were no direct questions on this topic;

the Department obtained a referee report from the Appellant's third-choice referee who was also the referee for the promotion appointee; and

the Department did not submit the referee report received from the Appellant's first-choice referee and does not indicate if it was supplied to the delegate.

[26] The Respondent's written submissions are summarised as follows:

the assessment process incorporated selection techniques enabling a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role;

the Appellant's submissions regarding his own experience are subjective and based only on his experience and knowledge, while the panel considered all factors in both the written application and interview for all candidates;

the assessment process established candidate relativity based on merit and the application of the merit principle in accordance with ss 27 and 28 of the PS Act;

the 'Comparative Assessment' within the Selection Report described who was the most meritorious applicant in comparison to the others;

the Role Profile clearly included leadership attributes and it was open to the panel to consider leadership capabilities required to lead a team;

the Selection Report refers to consideration of both written and interview responses;

the Role Profile outlined the key role duties, accountabilities, competencies and requirements against which each applicant was assessed and were required to submit a written application of a letter and resume;

interview questions are not required to cover all position competencies, duties, responsibilities and role requirements - the questions reflected key attributes captured in 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;

consideration of applicants' responses in interview only formed part of the assessment - the applicants' written applications and resumes, which detailed skills and duties, were also considered;

the panel initially considered applicants' written applications as demonstrated by the completed Shortlisting Matrix which, in part, includes a summary of the panel's considerations of the Appellant and the promotional appointee's work experience relevant to the position;

immediately following the interviews, the panel members discussed both the written applications and interview responses of the candidates before deciding on who was recommended as the most meritorious applicant;

the Selection Report, in particular the 'Merit Assessment' section, demonstrates that the panel included both the written applications and the interview process responses of the Appellant and the promotional appointee in the panel's deliberations;

candidates were shortlisted based on their individual application - the panel then asked questions of each candidate directly relevant to elements identified in the Role Profile;

the composition of the panel was appropriate having regard to the positions and experience of the panel members;

the Interview Notes do not show bias, but rather reflect the panel's consideration of each applicant's demonstrated strengths and weaknesses;

the panel sought referee reports to verify the applicants' claims made during the recruitment process;

referee checks are used to validate the information that a candidate has provided through the recruitment and selection process, not to decide the successful applicant; and

the Appellant did not indicate that one referee was more preferable than the other.

[27] Section 562C(2) of the IR Act states (emphasis added):

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 Service Act 2008, a regulation or a directive of the commission chief executive under that Act.

[28] The following PS Act provisions detail the required considerations of the merit principle and criteria (emphasis added):

(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).

In applying the merit principle to a person, the following must be taken into account -

(a) the extent to which the person has abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question;

(b) If relevant -

(i) The way in which the person carried out any previous employment or

(ii) The extent to which the person has potential for development.

[29] Clause 7 of the Recruitment and Selection Directive relevantly provides:

7.2 Assessment processes for advertised vacancies must:

(a) incorporate selection techniques that enable a sufficiently comprehensive assessment of the applicants' merit within the current context and duties of the role

(b) take into consideration all merit information before the selection panel, rather than focusing on one aspect of the assessment process (e.g. interview performance)

(c) incorporate pre-employment checks including referee checking as per clause 8

(d) measure the relative merit of each applicant, and

(e) be consistent with the principles of employment equity and anti-discrimination.

7.3 Selection decisions for advertised vacancies must be clearly documented and able to be independently reviewed, including a statement explaining the basis on which the panel has concluded that the recommended appointee is the most meritorious (i.e. has demonstrated superior merit against the key attributes of the role as compared to the other applicants).

7.5 If the selection panel recommends an order of merit, a comparative statement clearly describing the specific reasons why each recommended applicant is considered to be more meritorious than the next in the order of merit, must be provided.

7.6 In approving an appointment, the decision maker must be satisfied the proposed appointee is the most meritorious and, where applicable the selection process complies with the PS Act and this directive.

[30] Clause 8 of the Recruitment and Selection Directive relevantly provides:

8.2 Referee checking relating to an applicant's work behaviour and performance, including seeking the referee's knowledge about past performance assessments and past serious disciplinary action must be conducted. The panel is responsible for determining when, during the selection process, referee checking is to be conducted.

8.3 At a minimum, referee checking must be conducted in relation to the applicant or applicants recommended for appointment and where applicable on an order of merit. Referee checking for other applicants is at the discretion of the panel.

[31] The determination of this appeal turns on whether the Appellant is able to establish that the selection process was deficient.

[32] The Appellant contends the panel did not have regard to merit information beyond the interview questions. Upon review of the Selection Report, I disagree. The "Merit Assessment" table appears to be segregated into an "Overview" section which references the Appellant's written application and a "Merit Assessment" section which references the interview. Although it may seem from that segregation that the written application was not included in the merit assessment, I reject that assertion on the basis that the conclusion clearly incorporates consideration of both mediums.

Mark's written application highlighted significant experience as a Cadastral Surveyor and he has acted in this position successfully previously. He is a current member of this team. He has the proven ability to deliver survey policy projects e.g. 2021 review of thee cadastral survey standards and sound team leadership and management skills. He has a strong knowledge of the policy environment and future needs within surveying, with a good example demonstrating results and accountability. Sufficient skills and experience highlighted to be eligible for the AO8 interview.

[34] The Conclusion of the Selection Report states, "The panel assessed that Mark demonstrated highly sufficient skills, experience and capability to be eligible for the AO8 Manager, Surveying Services role merit list." On the Appellant's own submission, the questions were narrowed and therefore the conclusion regarding "skills and experience" clearly stemmed from the written application in conjunction with the interview.

[35] Furthermore, the Shortlisting Matrix clearly shows that the applicants' written applications were carefully scrutinised in the initial stages of the selection process.

[36] It is an accepted historical and contemporary practice across the public and private sector to determine the first round of selections based upon written applications. Further energies may then be focused upon those deemed to be the most meritorious candidates, by conducting interviews or other selection processes. The interview provided the Appellant with the opportunity to further demonstrate his experience and qualifications.

[37] In Bayntun v State of Queensland (Department of Tourism, Innovation and Sport) ('Bayntun'), Industrial Commissioner Power held:

The Panel determined that the Appellant demonstrated adequate skills and experience related to the requirements of the position and was consequently listed as meritorious for the position. The Panel ultimately determined that, comparatively, the appointee demonstrated a higher degree of merit and articulated her high-level skills and experience including outcomes, deliverables and achievements as they relate to all the requirements of the position. The Appellant submits the selection report disregarded her 'large volume of highly quality outcomes' within her resume. I am not persuaded that the Appellant's resume was disregarded simply because all aspects were not referred to in the selection report. The fact that particular skills or experiences are not mentioned in the selection report does not indicate that they were not considered. The Panel's comments on the selection report regarding the written application and the interview demonstrate that each applicant was assessed fairly with particular strengths or weaknesses noted.[5]

[38] I adopt Industrial Commissioner Power's reasoning and find that although the Selection Report did not explicitly reference each aspect of the Appellant's written application, that does not indicate it was not considered. My reading of the Selection Report is that prior to the interview stage, the Appellant was on fairly equal footing with the promotional appointee - which explains why significant emphasis was placed on the interview. That emphasis does not render the selection process deficient in circumstances where I have found the written application was also appropriately taken into account in accordance with cl 7.2(b) of the Recruitment and Selection Directive.

[39] Section 28 of the PS Act provides that, in applying the merit principle, the following must be taken into account - "the extent to which the person has the abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to the carrying out of the duties in question". There is nothing improper about determining that an applicant was better able to demonstrate their merit in an interview to another. Criteria including management and leadership necessitate demonstration of communication skills, and it was reasonable for the Department to give weight to the ability of applicants to communicate their answers.

[40] The Appellant appears to take issue with the panel's indication that their assessment of leadership skills and experience was the determining factor in selecting the successful candidate. In the Comparative Assessment, the promotional appointee was recommended in light of the following comments:

The panel acknowledge that John and Mark both interviewed impressively well and were similar in the rankings for different aspects... While John's change implementation was substantial, it was internal to the Department, where Mark's example was significant and involved external industry and stakeholder interaction. More importantly though, John was able to demonstrate his broad and extensive collaborative and supporting leadership style and experience more effectively and this is a key requirement for this role. While John and Mark have a sound theoretical and technical background, it was the leadership aspect that elevated John slightly in the rankings.

[41] Upon review of the Selection Report, it is clear that various criteria were considered and the relative merit of each applicant was measured in accordance with cl 7.2(d) of the Recruitment and Selection Directive. That assessment was that both candidates were measured to be very close. The final remark in the above extract, "... it was the leadership aspect that elevated Johns slightly in the rankings" explains the basis on which the panel concluded that the promotional appointee was the most meritorious in accordance with cl 7.3 of the Recruitment and Selection Directive. The statement also explains why the promotional appointee was considered to be more meritorious to the Appellant as the next applicant in the order of merit.

[42] The Role Profile refers to leadership and management throughout, providing "You will lead and manage the provision of high level, expert advice to senior management on a wide range of surveying and spatial policy matters. We are keen to focus on your skills in management and leadership..."The profile also lists the following key duties - "lead a team to deliver high quality outcomes..." and "lead and manage consultation and negotiations..." Upon review of the Role Profile, it was clearly not unreasonable for the panel to give significant weight to leadership skills and experience when assessing each applicant.

[43] The Appellant submits he is unaware of the promotional appointee having any experience in the majority of the key duties of the position. Just because the panel did not share this view does not render the selection process deficient. The Appellant's views on who is more meritorious are subjective. The Comparative Assessment within the Selection Report outlined how the applicants were differentiated. The panel determined that both the Appellant and the promotional appointee were "similar in rankings for different aspects" - however the panel noted the promotional appointee was "able to demonstrate his broad and extensive collaborative and supporting leadership style and experience more effectively".

[44] The Appellant contends that in the absence of weightings and rankings, the Department does not address how the candidates demonstrated merit against the key attributes. The Appellant has not drawn me to a requirement that the panel adopt a quantitative selection method. Rather, qualitative assessments are common. Although qualitative comments may make the comparison less clear in contrast to a numerical assignment against each criteria - it is unlikely this would have assisted the Appellant in ascertaining the reason he was not considered the most meritorious. I find the comments offer a transparent explanation.

[45] The Appellant contends that the Selection Report does not demonstrate that the panel considered merit against all of the key attributes of the role. I reject that argument for the reason that the Shortlisting Matrix Template and Selection Report explicitly refers to experience, skills, abilities, qualifications, personal qualities, knowledge, as well as previous experience in the role and team. I am satisfied upon my review of the material that the Department has complied with s 28 of the PS Act. It appears that the Appellant is seeking more - however, I am satisfied that the application and assessment of the merit principle was comprehensive in accordance with cl 7.2(a) of the Recruitment and Selection Directive.

[46] In my view, the selection made was open to the panel members and I am satisfied the promotion decision was made on the basis of merit. There is no evidence that the selection process was deficient. The Department took into consideration the merit criteria under s 28 of the PS Act and complied with the process under cl 7.2 of the Recruitment and Selection Directive. Consequently, I find the promotion decision was fair and reasonable in this regard and I dismiss this ground of appeal.

[47] The Appellant contends the interview questions were too narrowed to cover the elements within the Role Profile.

[48] The interview questions are reproduced below:

Please provide the panel with an example of where you have had to implement change within the workplace, such as a new procedure, policy, government initiative, or legislation.

What was the outcome and what did you learn from the experience.

Two of the team leaders that you manage have demonstrated poor performance during your first three months in the job. The poor performance is characterised by both the team leaders and their teams not meeting performance measures, not meeting deadlines, and by difficult relationships within and between the teams.

How would you manage this situation both in person and remotely?

[49] In my view, the questions were worded in a sufficiently broad manner to allow the applicants to answer in a way that highlighted relevant aspects of their qualifications, experience, knowledge and skills. Clearly the questions encompass themes of leadership, building and managing positive working relationships, ensuring a culture of service delivery and high performance, managing, mentoring, coaching and training staff as well as experience in policy matters, problem solving and giving advice on policy and legislative issues. All matters relevantly contained within the Role Profile.

[50] The answers to the questions could also have broadly spoken to the ability to role model, challenge the status quo by seeking out new models and developments, working with the team, supporting others and demonstrating flexibility and openness. Further, any answers to the interview questions were appropriately considered in conjunction with the written applications - therefore negating the need to go over each and every competency, duty and responsibility in the interview.

[51] The potential answers to those questions clearly encompass a substantial portion of the key duties, accountabilities and competencies under the Role Profile. The interview was the Appellant's opportunity incorporate and emphasise as much of the relevant material within his application as possible to demonstrate his suitability for the role. The panel is not required to step through and ask a direct question on each and every duty and competency. Rather, it is the applicants' role to answer the questions given as effectively as possible.

[52] It appears that the Applicant may have been surprised by the questions or regretted not elaborating more on certain aspects of his capabilities. However, that does not render the selection process unfair or unreasonable. It is a matter for an applicant to present themself in the best possible light. The interview questions were broad enough to give the Appellant that opportunity and I am satisfied those questions were appropriate and reasonable.

[53] I am not persuaded that the interview questions render the selection process defective and therefore dismiss this ground of appeal.

[54] The Recruitment and Selection Directive is largely silent on panel composition. However, the Recruitment and Selection HR Protocol (the Protocol)[6] outlines a list of factors that should be considered when forming a panel, for example: including members equal to or above classification level of the position, including the current supervisor of the position, including someone who has completed recruitment and selection panel training, including someone who understands the technical or professional elements and including someone who is external to the immediate team of the position.

[55] The Protocol does not make mention of including the previous incumbent of the role in the panel as the Appellant suggested should have been the case.

[56] The Appellant merely submits that the panel members have never worked in a similar unit or role to which the Respondent merely rebuts that the composition was appropriate having regard to the positions and experience of the panel members. I note those positions include the Director of Surveys, Principal Surveyor and Director of Land Services. I am not privy to the experience or knowledge of the panellists.

[57] Although there may have been some value in including a panellist who has undertaken the promotional role or a similar role, the Protocol does not require it. The Appellant has not convinced me, with reference to the considerations that should be taken into account, that the Department has failed to comply with Recruitment and Selection Directive or the Protocol. I am not persuaded that the panel composition renders the selection process defective and therefore dismiss this ground of appeal.

[58] The Appellant contends the panel members were biased against current members of the work unit including the Appellant. Further, the Appellant argues the panel demonstrated bias when referencing the number of times the Appellant needed to be prompted and in stating that "more insight on his leadership style would have been preferable" despite not asking direct questions on that topic.

[59] Allegations of bias should not be made lightly, as they are not taken lightly.

[60] I am not persuaded by the Appellant's submission regarding bias against current members of the work unit. The panel appropriately considered the competencies and duties within the context of the specific work environment. Both interview questions were seemingly aimed at addressing the ability of applicants to implement change and deal with a team that is facing difficulties. The applicants were given equal opportunity to respond and were reasonably assessed accordingly.

[61] In Bayntun, Industrial Commissioner Power held:

The Appellant submits that the selection report is biased in favour of the appointee. One would expect that the information recorded on a selection report would reflect the reasons that an applicant was deemed more meritorious than the other applicants. This information is evidence of the superior merit of the appointee rather than evidence of bias.[7]

[62] The Appellant contends that the material demonstrates bias against him. Adopting the reasoning of Industrial Commissioner Power, one would expect that the information recorded on a selection report would reflect the reason that an unsuccessful applicant was deemed less meritorious than the promotional appointee. I agree with the Department that the panel's consideration of each applicant demonstrated their strengths and weaknesses.

[63] I am not persuaded there is sufficient evidence of bias in the material before me and therefore dismiss this ground of appeal.

[64] The Appellant takes issue with the Department considering the referee report of his third-choice referee rather than his first. The Department contends that a preference was not indicated and in any event, referee checks are used to validate the information that a candidate has provided rather than to decide the successful applicant.

[65] Clause 8.3 of the Recruitment and Selection Directive provides that referee checking must be conducted in relation to the applicants recommended and where applicable on an order of merit. Whereas, referee checking for other applicants is at the discretion of the panel.

[66] The Appellant was not recommended for appointment and therefore a referee check was not required. In any event, the fact the Department considered the third-choice reference over the first does not render the process defective in circumstances where referee checks are considered a valuable validation tool rather than a determinative factor.

[67] The Commission may only set aside a promotion decision if they find that the recruitment or selection process was deficient. In determining whether there was such a deficiency, the Commission must consider whether the recruitment and selection process complied with the PS Act, a regulation or a directive of the commission chief executive.

[68] For the reasons explained above, I have found that the promotion decision was fair and reasonable. The selection process conducted by the Department was not deficient, as it complied with the PS Act, Recruitment and Selection Directive and Protocol.

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

[2] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

Cleary v State of Queensland

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