Haycock v State of Queensland

Public Sector Act 2022 (Qld), s 44, s 45, s 131

Recruitment and selection (Directive 07/23), cl 8, cl 9, cl 12

A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16

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

Clare v State of Queensland (Department of Education) [2022] QIRC 492

Cleary v State of Queensland (Department of Resources) [2022] QIRC 416

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland [2018] QSC 319

Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487

• [1] Mr Nathan Haycock ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Registered Nurse, NRG 5 in the Emergency Department of the Gold Coast Hospital and Health Service ('GCHHS').

• [2] The Appellant applied for the position of Clinical Nurse, NRG 6 ('the position') with the Respondent. On 9 October 2024, the Appellant was advised via email that he was not successful in obtaining the position ('the decision').

• [3] By appeal notice filed on 1 November 2024, the Appellant appealed the promotion decision of the Respondent, pursuant to s 131(1)(e) of the Public Sector Act 2022 (Qld) ('the PS Act').

• [4] The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.

• [5] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

• [6] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(b) set the decision aside and return the issue 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 PS Act that the Commission considers appropriate.

• [7] Section 562C(2) of the IR Act provides:

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.

• [8] Section 44 of the PS Act relevantly provides the following:

1. 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.

• [9] Section 45 of the PS Act also provides:

1. 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.

• [10] The Appeals (Directive 04/23) ('Appeals Directive') and Recruitment and selection (Directive 07/23) ('Recruitment and Selection Directive') are relevant to the determination of the appeal.

• [11] The Appeals Directive relevantly provides:

10.1 Section 131(1)(e) of the Act provides that a promotion decision may be appealed.

10.2 Section 129 of the Act provides for the definition of promotion decision.

10.3 Who may appeal a promotion decision under section 133 of the Act:

(a) a public sector employee employed on a permanent basis who is aggrieved by the decision and is entitled to appeal under a directive.

10.4 Further to clause 10.3, a public sector employee is only entitled to appeal a promotion decision:

(a) where the decision relates to a promotion of a permanent public sector employee that has been published in accordance with section 84(2) of the Act, and

(b) where the aggrieved employee submitted an application for the role that is the subject of the promotion decision, and

(c) if the aggrieved employee's application for the role that is the subject of the promotion decision, was received by the deadline for the receipt of applications, or in the case of continuous applicant pools, the application was received prior to the initial date that applications were distributed to the selection panel, and

(d) the aggrieved employee has sought post-selection feedback in accordance with the relevant provisions of the directive relating to recruitment and selection, and

(e) in the case of a promotion decision resulting from a limited advertising process conducted in accordance with the directive relating to recruitment and selection, the aggrieved employee must have been eligible to apply.

10.5 Decisions that cannot be appealed as a promotion decision under section 132 of the Act:

(a) a non-appealable appointment (refer to clause 17 for more information)

(b) a decision to promote a public sector executive, unless the decision is declared under a directive to be a decision against which an appeal may be made

(c) a decision to promote a person as a chief executive, a senior executive or a senior officer

(i) the person employed under the promotion decision had been redeployed within one year before the promotion, and

(ii) the promotion is to a classification level that is not higher than the classification level of the person employed under the promotion decision immediately before the redeployment.

• [12] The Recruitment and Selection Directive relevantly provides:

1. Selecting the eligible applicant best suited to the position

9.8 To promote integrity and diversity in recruitment, selection panels must:

(a) consider and declare any actual, potential or reasonably perceived conflicts of interest between each panel member and the applicants, or, the absence of such conflicts of interest

(b) consider elements of conscious or unconscious bias that may impact the process, including mitigation strategies

(c) consider how the selection process can be accessible, inclusive and culturally safe (as relevant to each circumstance and organisational context)

(d) provide candidate care, including through timely and regular communication with applicants

(e) for senior executive vacancies, include one member from outside the ministerial portfolio.

Assessment of the person best suited to the position

9.10 When selecting the eligible applicant best suited to the position, a person undertaking a recruitment and selection process must:

(a) comply with any relevant direction given by the chief executive under clause 7.6

(b) conduct a holistic assessment of eligible applicants in the context of the role requirements and the factors provided for in section 45(2) of the Act

(c) clearly document why a person is assessed as being the eligible applicant best suited to the position, including a comparative assessment where there is more than one applicant in a process.

9.11 Assessment processes for advertised positions must:

(a) consider contemporary and best practice selection techniques relevant to the requirements of the position and the entity's operating context

(b) incorporate selection techniques that enable a sufficiently comprehensive and holistic assessment of each applicant within the context of being best suited to the position

(c) consider all the information before the selection panel, rather than rely or focus on one aspect of the process, such as interview performance

(d) incorporate referee checks and pre-employment checks as appropriate and required

(e) be consistent with the obligations set out in chapter 2 of the Act relating to equity, diversity, respect and inclusion.

12.1 All applicants are to be advised that they may request feedback from the selection panel. In cases of graduate program applicants, this requirement only extends to applicants who were interviewed.

12.2 Applicants who request feedback must receive timely, specific and constructive feedback from a member of the selection panel. The mode of feedback is at the discretion of the panel member providing feedback, and must be reasonable in the circumstances.

• [13] The Appellant outlined the following grounds of appeal:

I am appealing the recent promotion decision due to procedural inconsistencies, potential unconscious bias, and the lack of reasonable adjustments for performance anxiety, all of which I believe undermined the fairness and transparency of the assessment process, disregarding a holistic assessment based on the merit principle.

• [14] The Appellant attached submission to his Appeal Notice. The Commission issued a Directions Order calling for further submissions from both parties following receipt of the Appeal Notice. The submissions are summarised below.

• [15] The Appeal Notice contained the following submissions, in summary:

(a) The Appellant submits that he believes that there were issues with fairness and transparency and that his application was not assessed on the basis of merit or that all the information was considered by the panel. The Appellant argues that he had previously presented his Quality Improvement Project ('QI project') and received positive feedback, but on this occasion had the QI project negatively assessed.

(b) The Appellant submits that there may have been elements of unconscious bias as he had been accused by the panel chair a week prior of working outside of his nursing scope based on a misunderstanding. The Appellant argues that there was an unconscious bias by the panel chair that his work performance was sub-standard, and that the panel did not address the elements of unconscious bias, which impacted the process of a fair and transparent recruitment process.

(c) The Appellant submits that the panel failed to provide reasonable adjustments for his performance anxiety during the interview process, and did not give sufficient weight to the simulated portion of the assessment. The Appellant argues that the feedback provided shows that the final assessment did not consider his attitude and behaviour throughout the entire interview process.

(d) The Appellant submits that the panel's failure to consider the documentation that he provided is in breach of the holistic assessment required by the Recruitment and Selection Directive.

(e) The Appellant submits that an interaction between panel members about organisational expectations for education suggests a misunderstanding or bias regarding the Appellant's qualifications and commitment to professional growth.

(f) The Appellant also raises issues with the lack of specific and constructive feedback, the lack of follow-up questions to clarify information during the interview, and a lack of consideration of the Appellant's QI initiatives.

• [16] The Appellant submits, in summary, that:

(a) The Appellant submits that the panel failed to consider his simulation performance as he received exemplary feedback which demonstrates qualities which align with the role. The Appellant argues that this was not given adequate weight in the overall evaluation and the panel instead emphasised his demeanour during the verbal portion of the interview instead.

(b) The Appellant argues that his QI Project had previously been praised in two previous interviews but was now dismissed without justification. The Appellant submits that the panel's feedback that he failed to articulate deliverable outcomes was incorrect as he explicitly articulated them in his interview.

(c) The Appellant argues that the panel did not give proper consideration to his Clinical Nurse Consultant ('CNC') experience and how it demonstrates his suitability and readiness for the role.

(d) The Appellant also took issue with the panel failing to reference his detailed handouts in their assessment.

(e) The Appellant argues that there is evidence of bias in that successful candidates were praised for presenting speculative QI ideas or outlines, while his completed project was dismissed as insufficient. The Appellant believes that the feedback from the panel highlights a disconnect between the expected and actual qualifications of successful candidates, suggesting there was inconsistent application of standards. The Appellant submits that this shows a clear bias against his QI project.

(f) The Appellant submits that the panel chair accused him of working outside his scope. The Appellant argues that this allegation may have introduced an unconscious bias into the panel's evaluation of his application and demonstrates that the panel chair may have been quick to make decisions without properly considering all relevant information presented by the Appellant in the interview.

(g) The Appellant submits that the interaction between the external panel member and the panel chair as to organisational expectations around postgraduate studies may have potentially swayed the external panel member's perception of his qualifications.

(h) The Appellant reiterates that the feedback emphasised a lack of energy in the verbal interview despite a strong performance in the simulation. The Appellant submits that this disproportionate emphasis undermines an objective evaluation of the Appellant's suitability for the role. The Appellant believes bias was a factor due to the disproportionate nature of the two panel members' assessments of his attitudes and behaviours.

(i) The Appellant reiterates that his QI project had been praised in past interviews and argues that this is evidence of an unfair bias against him. The Appellant again contrasts his QI project against successful candidates.

(j) The Appellant submits that the panel chair's feedback stating that he did not highlight his CNC leadership raises concerns about potential bias due to the panel potentially not evaluating him as transitioning from a CNC (NG7) to a CN (NG6), but rather, evaluating him as transitioning from his substantive role as an RN (NG5) to a CN (NG6). The Appellant argues that this distinction is critical as his CNC experience demonstrates leadership above what an RN would be expected to do.

(k) The Appellant submits that the panel also erroneously assumed that his QI project was driven solely as part of the simulation working group, which was incorrect. The Appellant argues that this misjudgement unfairly diminished the value of his leadership and contributions, and implied that leading or being part of a working group is inadequate. The Appellant further argues that this assumption further compounded the unfair assessment of the Appellant's capabilities and undermined the merit-based evaluation process.

• [17] The Respondent submits, in summary, that:

(a) The Respondent argues that the Appeal should be dismissed due to it being lodged outside of the 21-day time limit.

(b) The Respondent refers to A1 Rubber[5] and argues that the Appellant has not discharged the burden of invoking a favourable exercise of the Commission's discretion to allow the Appeal out of time. The Respondent further argues that the Appellant's Appeal Notice and submissions do not demonstrate that the justice of the case requires the extension sought.

(c) The Respondent argues that the Appellant's explanation for the day is insufficient due to:

1. There being no requirement for the Appellant to be provided 'written feedback' prior to his lodging of the appeal;

1. The Appellant had received feedback prior to, and on 30 October 2024, which was within the appeal period; and

1. The Appellant has failed to provide any evidence which would suggest that the feedback was not provided in a timely manner.

(d) The Respondent also submits that the Appellant has limited prospects of success as:

1. The recruitment process was compliant with all regulatory, policy, and directive obligations. The role and role description were advertised, the selection criteria were transparent and available to all applicants, and the evaluation of the applications was standardised; and

1. The Appeal is absent of the character and evidence necessary for the Appeal to have merit. The Appellant's submissions are absent of evidence that the recruitment process was deficient in complying with the principles within s 44 of the PS Act.

(e) The Respondent submits that the recruitment process entailed a comparative assessment which was moderated by three panel members, which ensured the absence of personal bias in any presentation.

(f) The Respondent submits that the Appellant has not provided evidence as to why his application was of greater merit than other candidates that were successful in the recruitment process. The Respondent argues that the Appellant does not have any direct knowledge of the successful candidates' merits and overall ability to perform the role and so cannot put himself in the shoes of the decision maker.

(g) The Respondent refers to the case of Bayntun v State of Queensland (Department of Tourism, Innovation and Sport)[6] as an example of the process of comparative assessment being the standard held by the Commission when deciding the merit of an application to overturn a recruitment panel decision.

(h) The Respondent argues that the Appellant did not raise any complaint or grievance in relation to the panel member ensuring that he work within the scope of his role until after he was unsuccessful in his application. The Respondent further argues that the Appellant has not provided evidence of any unconscious bias and submits that it is within the usual course of business for the Nurse Unit Manager to have performance conversations with staff, including applicants. The Respondent submits that 'these ordinary discussions do not constitute bias'.

(i) The Respondent refers to an attached Selection Report by the panel on all candidates and submits that the panel judgments on all candidates are consistent, and merit based. The Respondent argues that the consistency in commentary is evidence that the Appellant's application was assessed on the same meritorious criteria that was applied to all other applicants.

(j) The Respondent refers to Clare v State of Queensland (Department of Education)[7] ('Clare') to justify the level of detail in the Selection Report. The Respondent submits that the methodology contained within page 6 of the Selection Report ensures that there is "an exceptional level of robustness and independence in the panel decision making process". The process involved six senior nurses, with three forming the panel and three who undertook the SIM activity and reported their results to the panel for assessment. The Respondent also submits that one delegate was tasked with signing off the Selection Report and ensuring its compliance with the PS Act and the Directive.

(k) The Respondent refers to an attachment to the Appellant's submissions containing messages from two other applicants relating to the interview process. The Respondent submits that it is a hearsay document created only by the Appellant for his own purpose, and it cannot be relied upon. The Respondent argues that at best it is the Appellant's own unverified version of a conversation with another employee, and it does not relate to the decision of the panel.

(l) The Respondent argues that the Appellant made no application for reasonable adjustments for performance anxiety and has not produced any medical evidence to indicate he suffers from the condition. The Respondent submits that it is not unusual for applicants to find the interview process stressful, and that this is not a cause for the Appellant to be excused from sitting the same interview required by all other applicants. The Respondent further argues that the role is often stressful and so the interview allows the panel to view applicants in a controlled but pressured environment as they may be exposed to that in the role.

(m) The Respondent refers again to Clare in which Commissioner Pidgeon dealt with the approach of recruitment panels.

(n) The Respondent notes the panel feedback provided to the Appellant on his presentation of his submission and that the work he provided was part of a 'contribution' to a QI project, not his own independent work.

(o) The Respondent cites Cleary v State of Queensland (Department of Resources)[8] where it was held that the Commission can only set aside a promotion decision if they find the recruitment or selection process was deficient. The Respondent argues that the decision complied with the PS Act and the Recruitment and Selection Directive, and the Appellant has failed to provide particulars about how he believes that the Recruitment and Selection Directive and the PS Act have been breached.

(p) The Respondent also cites Gilmour[9] to support their contention that the Appellant has the burden of establishing that the decision "lacks intelligent justification".[10] The Respondent further cites Henning v State of Queensland (Queensland Treasury)[11] and submits that the Selection Report complies with the principles set out within it.

• [18] The Appellant's submissions in reply are summarised as follows:

(a) The Appellant argues that the Respondent's claim that the appeal is out of time is unfounded as he made multiple attempts to access feedback to his application. The Appellant submits that he sought feedback immediately after the decision and via a follow-up email, and that it was only after he received the feedback that he became aware of new grounds for the appeal.

(b) The Appellant further argues that the appeal was lodged within 24 hours of receiving the feedback, and that without the feedback, the Appellant could not have identified the procedural failures central to his appeal. The Appellant also submits that the feedback was directly contradictory to the Selection Report, highlighting the unreliability of the feedback and its disconnect from the Appellant's performance record.

(c) The Appellant submits that the feedback's claims that successful candidates demonstrated QI leadership with measurable outcomes are false as successful candidates confirmed that their QI projects were at the planning stages without measurable outcomes.

(d) The Appellant argues that accepting other applicants' theoretical projects as evidence of leadership while dismissing the Appellant's documented outcomes is a violation of merits-based assessment principles and cl 9.10 and cl 9.11 of the Recruitment and Selection Directive.

(e) The Appellant made further submissions contrasting the theoretical projects and results of successful applicants with the "clear, tangible" results of his QI project. The Appellant argues that this demonstrates a flawed assessment that failed to prioritise merit, and objective assessment, and undermines the credibility of the selection process.

(f) The Appellant submits that the Respondent's position that his work was a mere 'contribution' represents post-hoc justification which did not appear in the original feedback, the Selection Report, or the panel chair's follow-up email. The Appellant argues that the after-the-fact rationale contradicts evidence of leadership in his QI projects.

(g) The Appellant argues that bias is present in the decision-making process as evidenced by:

(i) The Appellant's leadership experience as acting CNC Flow Commander, strong contextual sim performance, and QI project outcomes being ignored while other applicants in the plan stage were elevated;

(ii) Feedback provided to the Appellant was contradictory as he was described as being both 'low' in demeanour and 'carefree', and

(iii) The panel chair operated outside the Appellant's reporting line and lacked authority to comment on the scope of the Appellant's practice.

(h) The Appellant submits that despite formally raising bias concerns on the day of the incident and one week prior to the interview, no strategies were implemented despite being required under cl 9.8(b) of the Recruitment and Selection Directive.

(i) The Appellant argues that despite citing Clare[12] to justify repetitive, vague comments, the fact that other applicants received identical comments indicates that there was a failure by the panel to conduct individualised assessments. The Appellant also argues that the Selection Report does not meet the standard of a "decent record of deliberations" that is required to justify decisions.

• [19] The decision on appeal is whether the outcome of the recruitment and selection process conducted by Queensland Health in which the Appellant was an applicant was fair and reasonable.

• [20] On 9 October 2024, the Panel Chair, Ms Emily Davis, sent an email to applicants advising the names of the successful applicants for the position. The 21-day statutory time period within which an appeal could be filed against the decision ended on 30 October 2024. The Appellant filed this appeal on 31 October 2024, one day after the expiry of the statutory appeal period. The Appeal was accepted for filing by the Industrial Registry on 1 November 2024.

• [21] On the material before the Commission, the Appellant did not seek feedback until 14 October 2024. The Appellant followed up with a further email request on 18 October 2024. It appears that some form of verbal feedback was provided following which the Appellant sought further feedback on 28 October 2024. The email from the Appellant on 28 October 2024 outlines the Appellant's request for 'further clarity' on the feedback previously provided. Additional feedback was provided on 30 October 2024 by Ms Davis. The Appeal was filed the day after this written feedback was provided.

• [22] The Appellant's explanation for the delay in filing the appeal was that the grounds of appeal were not apparent prior to his receiving feedback in the email from Ms Davis of 30 October 2024. The final date of the 21-day time period within which the appeal could be filed in compliance with s 564 of the IR Act was 30 October 2024. The appeal notice was filed one day after the 21-day statutory time period expired.

• [23] In circumstances where the Appellant contends that the basis upon which he sought to appeal was contained in the feedback provided on the final date of the appeal period, the justice of the case requires that the appeal be heard.

• [24] Leave is granted for the appeal to be considered on the basis that a reasonable explanation has been provided for the delay, the delay was not lengthy, and there is limited prejudice to the Respondent given that there will be no delay in the process as a result of the appeal being accepted out of time.

• [25] The Selection Report provided by the Respondent outlined that the selection strategies used to assess the applicants included a resume, referee reports, interviews (behavioural, situational) and role plays.

• [26] The Selection Report confirmed the following selection strategy process details -

The initial shortlisting included assessing the applicants on their application as a whole including their selection report meeting the standards of being able to articulate and demonstrate their skills and attributes in alignment with the CCF of the position. Key areas of obtaining - completing of further postgraduate studies (enrolled and current was considered), being triage competent for over 6 months and demonstrating QI activities within their current area of interest.

Further to this the panel was split in two 2 groups. The Panel (Jackie Zuidam, Kate Rawnsley and Emily Davis) conducted the formal part of the interview with three questions. The SIM (Catherine Delany, Alama Flinders and Tracey Hardy) conducted a simulation to assess the applicants. The panel then convened and discussed the group as a whole and refereneces [sic] were distributed to the panel.

• [27] The Selection Report indicates that 52 applications were received, and 16 applicants were shortlisted for interview.

• [28] The Appellant contends that the panel chair previously accused him of working outside his scope and that this allegation may have introduced unconscious bias into the panel's evaluation of his application.

• [29] The interaction that the Appellant states may have given rise to unconscious bias involved the Appellant sending an email to Ms Davis and to a number of colleagues which included a plan from another employee, Dr Rahul Deshpande. Ms Davis sent an email in reply stating that it was "out of nursing scope" to document such a plan and asking Dr Deshpande if he was happy to document the plan. The Appellant replied confirming that the plan he had forwarded was Dr Deshpande's plan and that he was communicating the plan.

• [30] The submission that Ms Davis 'accused' the Appellant of working outside his scope is somewhat overstated. The interaction between Ms Davis and the Appellant via the two emails appears to be entirely conventional. As the Nurse Unit Manager, Ms Davis's responsibilities would include having regular discussions with staff regarding various actions in the workplace. Ms Davis appeared to be simply ensuring that the management plan was documented by a medical practitioner, as this was not clear from the email provided by the Appellant. There is no evidence that this incident went beyond a query about the Appellant's email which was then clarified. This incident seemed unexceptional and could not reasonably be seen as giving rise to unconscious bias.

• [31] In respect to her role as Nurse Unit Manager, I note that Ms Davis identified a potential conflict of interest and made the following declaration on the Selection Report -

I am the line manager for multiple applicants within this cohort of applicants. I do conduct myself in adherence with QLD code of conduct and as a public servant. I also role model the GCHHS values. I have a diverse panel and an external panel member to GCHHS to maintain a fair and equitable panel.

• [32] Although the submission made by the Appellant relates to unconscious bias, this declaration demonstrates that Ms Davis had insight into managing any potential conflicts and did so by establishing a diverse panel of six members including an external member. Given the ordinary nature of the email interaction with the Appellant, it was not necessary that specific measures to be taken to mitigate potential unconscious bias.

• [33] The Appellant has not demonstrated how his submission that Ms Davis lacked authority to comment on his scope of practice is relevant to the presence of unconscious bias.

• [34] The Appellant has not established that his application was impacted by unconscious bias as a consequence of this interaction.

• [35] The Appellant submits that bias was demonstrated by inconsistent standards being applied to his Quality Improvement (QI) project when compared with other applicants. The Appellant makes this submission based primarily on 'informal discussions' he had with one successful candidate and another candidate who had been placed on the merit list.

• [36] The Appellant contends that he finds it "difficult to believe" that the applicants were meritorious when the applicants indicated that nothing had been delivered on QI Projects, referencing information provided to him by Mr Daniel McNamara and Mr Oliver Filippow. The Appellant attached to his submission copies of what appear to be screenshots of messages between himself and Mr McNamara, and a copy of an email from Mr Filippow. I do not place significant weight on this material given that the messages were prompted by the Appellant's questions and do not necessarily reflect what occurred at the interview with the Selection Panel. There is no indication that Mr McNamara or Mr Filippow were aware that the responses provided to the Appellant's questions were to be used as a basis of an appeal rather than a private message potentially intended to comfort an unsuccessful applicant. Even if Mr McNamara and Mr Filippow provided answers to the best of their recollection, I consider the Selection Report to be a more reliable account of the interview process on the basis that it reflects the contemporaneous notes of the consideration of the entire panel rather than an individual participant's recollection.

• [37] In the section of the Selection Report titled Comparative Statement against other applicants and key attributes of the position, the following note is made against the Appellant's name -

The panel assessed his application and deemed that he was appropriate for interview. Through the interview process of the panel the applicant expressed a very carefree mannerism and the panel discussed his responses to his answers especially questions regarding his QI was not appropriate. It was deemed that participating within a working group does not demonstrate running a QI project for deliverable changes. This is when comparing to other applicants became notably a deficit within the applicants' deliverables of demonstrating the CCF of the CN position at GCUH ED. As expected, the applicant did well with the SIM and it is noted within the application he is a SIM facilitator. The panel discussed at length the applicant's overall application, interview and SIM and agreed that he was not suitable for merit with comparison of the other applicants and would strongly encourage to articulate QI projects with deliverable outcomes and specific changes to enable effective improvements.

• [38] The Appellant submits that the panel did not conduct a holistic assessment by not considering evidence of his leadership role, deliverable outcomes, or the impact of his QI project. As noted by Pidgeon IC in Clare,[13] the Selection Report in a recruitment and selection process is not a transcript of the panel's consideration. The Selection Report outlined the panel's consideration of the Appellant's QI project and determined that participating within a working group did not demonstrate running a QI project for deliverable changes. The Selection Report noted that this resulted in a deficit when compared to other applicants. I understand the Appellant disagrees with that assessment; however, it was open to the selection panel to take that view after comparing the Appellant's QI project to that of the other applicants.

• [39] The Appellant contends that his QI project had been praised in past interviews and deemed insufficient in this instance, with this 'inconsistency' suggesting an unfair bias against him. In the written feedback provided by Ms Davis, she stated the following -

As discussed, while you stated during the interview that you were on a working group for Simulation the panel did not feel being on a working group demonstrated the requirement for this role of "Deliverable Changes".

During our discussion you did state to me that you felt you had answered this question in a similar manner in previous interviews and been commended on it.

As I explained, this panel did not agree that your answer was strong or aligned with the CCF. I have been involved in your interview process on a previous occasion and I do not believe you clearly articulate your position on this occasion.

For context, others who interviewed were involved in and clearly articulated leading QI projects, their roles, responsibilities, and outcomes they had delivered on.

My advice in this space for future interviews would be to clearly articulate your leadership in a QI project naming deliverable outcomes and specific changes to enable effective improvements.

I note you have stated you clearly articulated this point, however on this occasion the panel did not agree.

I would strongly recommend you engage with a mentor to refine your interviewing skills to enable you to be able to clearly articulate your skills and abilities during an interview.

• [40] Significant weight is placed on Ms Davis's feedback that the Appellant did not clearly articulate his position during this interview, particularly given that she had previously been involved in other interview processes with the Appellant. The praise that the Appellant states he received in previous interviews reflected a different interview performance, and it is clear from Ms Davis' feedback that the same qualities were not demonstrated to the selection panel in this process.

• [41] If 'erroneous assumptions' were made by the panel as to the Appellant's leadership in his QI project, it was reflective of his participation in the interview process. The interview was the Appellant's opportunity to indicate to the panel his skills and experience. As indicated in the feedback from Ms Davis and the Selection Report, the Appellant did not demonstrate running a QI project for deliverable change.

• [42] After considering the Selection Report as a whole and the Comparative Statements for all of the applicants, I am satisfied that a consistent criterion was applied to all applicants. In one example, the Selection Report states that in relation to a shortlisted candidate who was ultimately not successful, "... it was limiting to see the QI project within this working group" and that "[it] was deemed that participating within a working group does not demonstrate running a QI project for deliverable changes". Similarly, the Selection Report states that in relation to another shortlisted applicant who was not successful, "[the] applicant did discuss being a part of working groups and how this fitted within a QI project but was unable to discuss her own QI project that she had led". An example of the assessment of a successful applicant is the Selection Report is that "[the] applicant discussed a strong QI project that they have lead, showed considerable improvements and elements that excelled the understanding of a QI process".

• [43] I accept the Respondent's submission that the consistency in commentary demonstrates that all applicants were judged on a consistent merit-based criteria.

• [44] A ground of appeal outlined by the Appellant was that "a lack of reasonable adjustments" was made for his performance anxiety, such as additional support or accommodations during the interview. There is no evidence before the Commission that the Appellant made requests for specific adjustments. The Appellant refers to provisions of the Anti‑Discrimination Act,[14] however, this appeal is not a complaint brought pursuant to that legislation. It is not uncommon for applicants to feel anxious during interviews, and the Selection Report made note of a number of other applicants displaying nervousness. If the Appellant requires specific adjustments to address his anxiety in future interviews, such a request can be made prior to the interview process. It is, however, not a deficiency in the process for the Selection Panel to not proactively implement adjustments in the absence of any specific request and medical evidence.

• [45] The Appellant contends that making a judgement about his ability to perform the role after assessing his demeanour is not reasonable or compliant with the requirements of a merit-based selection process. The Appellant submits that bias resulted in disproportionate emphasis being placed on his "perceived lack of energy during the verbal interview", despite his strong performance in the simulation demonstrating confidence and leadership. The Appellant asserts that contradictory feedback was provided in that Ms Davis's feedback described him as 'low' in demeanour while the Selection Report labelled him as 'carefree'.

• [46] I note that the Appellant was not unsuccessful solely on the basis of his demeanour, as it was only one of a number of relevant factors outlined in the Selection Report. The feedback that the Appellant's demeanour seemed low and that he did not appear engaged is not incongruent with the SIM portion of the process as contended by the Appellant. The Selection Report notes that the Appellant performed well in the SIM, however, that assessment reflected only one part of the selection process. The Appellant appears to be of the view that his strong performance in the SIM should have been given more weight than his performance in other aspects of the interview process. This would not have been appropriate as the selection panel is required to conduct a holistic assessment of the Appellant based on all aspects of the selection criteria.

• [47] In the written feedback Ms Davis provided after reviewing her notes from the Appellant's interview she outlined the following -

I stated you seemed to lack energy and queried if you had a bad morning. During the interview, the panel all observed and noted your demeaner was low and you didn't appear engaged in the process.

Under HR policy B1 11.2 Assessment process "When assessing applicants, the panel must consider each applicant's personal qualities and behaviours and, if relevant, potential against the key attributes".

I acknowledge you have stated this was likely due to performance anxiety and I can appreciate the stress that comes with interviewing. I would suggest engaging with a mentor to assist you in feeling confident in the interview process.

• [48] The Selection Panel's consideration of the demeanour of an applicant is not inconsistent with a merit-based approach, particularly given the leadership qualities required for the position. The Appellant's assertion that the assessment was contradictory based on the feedback describing his demeanour as 'low' where the Selection Report described it as 'carefree' is in my view misconceived. The term 'carefree' was used in the following context - "...the applicant expressed a very carefree mannerism and the panel discussed his responses to his answers especially questions regarding his QI was not appropriate." The definition of 'carefree' provided by the Appellant is not consistent with the context in which it appeared in the Selection Report. The assessment can be summarised as the Appellant not appearing to be engaged in the process, lacking energy, and displaying mannerisms indicating that he was not taking care with his answers, i.e. carefree.

• [49] The Appellant submits that bias was further demonstrated during the interview when an external panel member questioned whether the Appellant's enrolment in a graduate certificate program was an organisational expectation. The Appellant contends that the panel chair affirmed this as an expectation even though it was not a mandatory qualification of the role advertisement. I note that contained within the role description under the heading Mandatory Qualifications/Professional Registration/Other Requirements is the following -

A graduate certificate or greater within a relevant speciality area is highly desirable. Where the successful applicant does not currently hold this qualification, commitment to completion of post graduate study would be encouraged.

• [50] Even on the Appellant's account, the panel chair did not state that a graduate certificate was a mandatory qualification. It is also implausible that the external panel member would have assumed that enrolment in a graduate certificate program was mandatory in circumstances where applicants had been shortlisted without this enrolment or qualification.

• [51] There is no evidence of this interaction in the Selection Report, however if it occurred in the manner suggested it does not appear that the Appellant suffered any prejudice. The Selection Report did not refer to postgraduate studies in any of the assessments of the 52 applicants and it does not appear that this factor played a significant role in the panel's considerations.

• [52] Notwithstanding my finding that the Appellant's contention of unconscious bias has not been made out, the involvement of six members on the selection panel renders the likelihood of the decision being impacted by one member exercising bias unlikely.

• [53] The Appellant submits that inadequate feedback was provided, noting cl 12.2 of the Recruitment and Selection Directive requiring that feedback should be specific and constructive. It appears that verbal feedback was provided at first instance by Ms Davis, noting that the mode of feedback is at the discretion of the panel member. Following the Appellant's email seeking clarification, further feedback was provided by Ms Davis in an email. This email provided clear and actionable guidance in accordance with cl 12.2 of Directive, specifically recommending that the Appellant engage with a mentor to assist him with interviewing given his anxiety around the process.

• [54] The Appellant submits that the panel failed to 'reference or incorporate' into their assessment his CNC leadership experience despite his provision of detailed handouts. The panel chair's feedback stating that the Appellant did not highlight his CNC leadership does not demonstrate that the panel evaluated him as transitioning from his substantive role as an RN to CN as contended by the Appellant. The responsibility of highlighting skills and experience in the interview lay with the Appellant, and feedback recommending that he highlight particular experience does not demonstrate that the panel did not evaluate him as transitioning from a CNC (NG7) to a CN (NG6). It is not necessary that the Selection Report reference every aspect of an application, and the fact that a particular aspect of an application is not mentioned does not mean that it was not considered by the selection panel.

• [55] The Appellant submits that the absence of follow-up questions during the interview suggests that the panel may have made assumptions without seeking necessary clarification. This is an entirely speculative submission. I note that there is no obligation on panel members to put follow-up questions to applicants.

• [56] The Appellant refers to s 45(2)(b) of the PS Act contending that his capacity for future contribution may have been overlooked due to inadequate consideration of his QI initiatives. Section 45(2)(b) outlines that an applicant's potential to make a future contribution may be considered as part of a recruitment process. This is not a mandatory requirement and, as outlined above, I am satisfied that the selection panel adequately considered the Appellant's QI project.

• [57] The selection strategy enabled the panel to conduct a comprehensive and holistic assessment of the applicants having regard to the relevant duties and responsibilities. I am satisfied that the Selection Panel considered all the information and did not rely on one aspect of the process.

• [58] I accept the Respondent's submission that the selection process involving six senior nurses provided applicants with an exceptional level of robustness and independence in the panel decision making process. The selection panel interviewed 16 applicants and outlined appropriately detailed assessments of these applicants.

• [59] After considering all the material before the Commission, I am satisfied that the recruitment and selection process complied with the PS Act and the Directive. As no deficiency has been established, I find the decision was fair and reasonable. Accordingly, the appeal is dismissed.

[1] Industrial Relations Act 2016 (Qld), s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10, 261.

[3] Goodall v State of Queensland [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act.

[5] A1 Rubber (Aust) Pty ltd v Chapman (Office of Industrial Relations) [2019] ICQ 16.

[6] [2022] QIRC 361.

[7] [2022] QIRC 492.

[8] [2022] QIRC 416.

[9] Gilmour v Waddell & Ors [2019] QSC 170.

[11] [2022] QIRC 487.

[12] Clare v State of Queensland (Department of Education) [2022] QIRC 492

[13] Clare v State of Queensland (Department of Education) [2022] QIRC 492.

[14] Anti-Discrimination Act 1991 (Qld).