Henning v State of Queensland

[4] Before the QIRC, Mr Henning raised three grounds of appeal, accurately summarised by the QIRC as:

"[21] Mr Henning's written submissions in relation to the appeal relies on the following grounds, as relevantly summarised:

(a) that the selection panel were biased and nepotistic because the majority of the selection panel (Steve Keating and Deidra Leigh) were recently employed by the Department of State Development, Infrastructure, Local Government and Planning and this resulted in the panel choosing a candidate who was also employed with the same department; ('ground one')

(b) that the interview process was 'flawed in that it was not based on written quantifiable responses to selection criteria'; ('ground two') and

(c) that Mr Henning was the most meritorious candidate ('ground three')."[3]

[5] All three grounds failed and Mr Henning appealed to this Court by application filed on 4 January 2023.

"• Recognition that the decision to appoint Brad Anderson as Visual Communications Manager (AO8) was unfair, not because of his appointment alone, but because of all the other State Development appointments.

• Have the position readvertised
• Have Steve Keating formally censured in some way for his abuse of his position concerning the appointments of a disproportunate (sic) number of a State Development people"

[7] This Court has no jurisdiction to sanction Mr Keating. He is not a party to the proceedings. The proceedings are an appeal under the Public Service Act 2008 (PS Act) (now repealed) and any orders can only relate to the decision to award the position to an applicant other than Mr Henning.

[8] Mr Henning has represented himself throughout. The intention of the other claimed relief is, clearly enough, to set aside the appointment which was made. I proceed on that basis.

[9] Mr Henning's grounds of appeal are expressed:

"1. Firstly it should be noted that given more time I may not have made this response. After waiting over six months for the IR to make a decision my negative response was emailed to me on 16 December and, as the 21 day response window falls on January the 5th, I have been forced to appeal to you again. You have given me no time to discuss my situation with a member of Treasury's Leadership Team, a HR representative or to seek advice from legal council (sic). If I had been on leave I would not have known until I returned. Given your disregard for my correspondence so far I can only assume the timing was intentional.

1. IR has made the incorrect statement that I believed I was the most meritorious candidate (point 21C and 35) and that my appeal was against a single promotion decision. This is not correct and was never written in any of my appeals. I am appealing the process used not the decision reached. If the process was flawed, and if the decision on the appointment was already made, then none of GROUND THREE is correct.
2. If it was just Brad Anderson who got the job I would have been disappointed and would still consider the decision unfair. However the real evidence and support for my argument (that Steve Keating has a bias towards hiring his old State Development team) was not considered at all. There are five State Development people working in our area since he became out (sic) manager, all appointed one after the other and/or promoted. I contend this is because he has a preference to hire people from his old team. This is unfair to me and to the other applicants, not just for the job I was applying for, but all the people who applied for positions in Strategic Communications. We never stood a chance.
3. IR pointed out Section 562B 'may allow other evidence'. Isn't five people appointed, all from the same department, an unusual circumstance? Surely this is 'other evidence' that should be reaccessed? In point 24 and 25 you contend I am vague about a conflict of interest. I consider it vague not to consider the chances of these five appointments occurring in a fair recruitment process. This is a clear message through all my correspondence with you. If there were 8 people who applied for the Visual Communications manager role then it would seem fair to assume a similar amount of applicants for the other positions. What are the chances that, of all these people, all the appointees should come from the same government department?
4. In point 26 you indicate that just because two of the three panel members are State Development people this does not by itself constitute a conflict of interest and, as long as they mention the previous working relationship, that is sufficient. What then is the intent and purpose of the acknowledgment if there are no repercussions for the acknowledgment? And was a similar acknowledgment made for the other interviews? What is it for if in every case they appoint State Development people anyway?"

[10] The right of appeal from the QIRC to this Court is conferred by s 557 of the IR Act. That section provides:

(1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -

(a) error of law; or

(b) excess, or want, of jurisdiction.

(2) Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court's leave, on a ground other than -

(a) error of law; or

(b) excess, or want, of jurisdiction.

(3) However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the commission under chapter 4, part 3, division 2.

(4) If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court's leave on a ground mentioned in subsection (2).

commission means the commission, other than the full bench constituted by the president and 2 or more other members."

[11] There is no application for leave to mount grounds beyond those of error of law or excess or want of jurisdiction. Any such application would be faced with s 565 of the IR Act which is in these terms:

If an application for leave to appeal is made under section 554, 557 or 560, the Court of Appeal, court or full bench -

(a) must give leave if it is satisfied it is in the public interest to do so; and

(b) may not give leave other than under paragraph (a)."

[12] Sections 557 and 565 together operate in this way:

1. Section 557 gives a right of appeal from the Commission to this Court.
2. Section 557(1) limits appeals as of right to ones based on grounds of error of law or excess or want of jurisdiction.
3. Section 557(2) provides for an appeal not as of right, but by leave of the Court, on grounds other than errors of law or excess or want of jurisdiction.
4. Section 565 of the IR Act limits the Court's discretion to grant leave to circumstances where it is in the public interest to do so.[4]

[13] There is a public interest in having the system of resolving industrial disputes conducted properly.[5] The private interests of the parties are not irrelevant to the question of whether or not "public interest" is shown. However, considerations beyond those private interests are relevant.[6]

[14] This dispute does not involve any matters of public interest. The dispute is confined to one concerning the filling of a particular position. The QIRC's decision on appeal demonstrates a completely conventional approach.

[15] Consequently, Mr Henning's appeal is limited to grounds of error of law or excess or want of jurisdiction.

[16] Ground 1 does not allege any basis to challenge the decision of the QIRC. It contains a series of allegations unrelated to the correctness or otherwise of the decision.

[17] Nothing in ground 1 raises an error of law or a suggestion that the QIRC committed jurisdictional error.

[18] Ground 2 refers to "point 21C and 35". This seems to be a reference to paragraphs in the reasons for judgment of the QIRC, although the reference to point 35 should probably be a reference to paragraph 37.

[19] Paragraph 21 of the decision under appeal appears at paragraph [4] of these reasons. Paragraphs [35] and [37] are:

"[35] Further, it is not a case that the applicants were taken by surprise with respect to the interview process methodology because they were provided with advance notice of the expectations regarding the interview and given a comparable opportunity to prepare their responses. This gave each of the three shortlisted applicants an opportunity to prepare their presentation having regard to the relevant duties and responsibilities of the position. The material indicates that the panel preferred the successful candidate's presentation and interview response.

[37] Mr Henning contends that he was the most meritorious candidate."

[20] What may be the subject of appeal under s 194 of the PS Act is, relevantly here, a "promotion decision".[7] A "promotion decision" is a decision "to promote a public service officer".[8] Errors in the process of making the decision, or errors in the reasoning in making the decision may vitiate the decision. However, what is under challenge is the decision.

[21] The function of the QIRC on appeal was to determine whether the decision appealed against was fair and reasonable.[9] One relevant consideration in that determination is whether or not Mr Henning was the most meritorious candidate.

[22] The QIRC carefully considered the evidence and judged that it was fair and reasonable for the conclusion to have been reached by the selection panel that the successful candidate was considered to be more meritorious.[10]

[23] No error of law or jurisdictional error is identified by ground 2.

[24] Grounds 3, 4 and 5 may be considered together as they all concern the decision of the QIRC to reject Mr Henning's submission that there was inappropriate preference given to the successful candidate because he worked at the Department of State Development, Infrastructure, Local Government and Planning. Three members of the panel who selected the successful candidate had also worked in that department.

[25] Those facts gave rise, so Mr Henning submitted, to a "conflict of interest" which vitiated the appointment decision. Mr Henning's case was not so much that there was "conflict of interest", but rather there was actual preference given to candidates working in that department, although little turns on that distinction.

[26] Mr Henning's reference in ground 4 to s 562B of the IR Act is a reference to paragraph [16] of the QIRC's judgment. Paragraph [16] provides:

"[16] Section 562B(4) of the IR Act provides that:

562B Public service appeal to commission is by way of review

(4) 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."

[27] Later in ground 4, there is reference to paragraphs [24] and [25] and in ground 5 a reference to paragraph [26].

[28] Paragraphs [24], [25] and [26] of the judgment are as follows:

"[24] Alternatively, Mr Henning contends that as members of the panel formerly worked at the Department of State Development, Infrastructure, Local Government and Planning and so had the successful candidate, that the panel members had a conflict of interest.

[25] Such an allegation is serious and should not be made without cogent evidence to support such a claim. Mr Henning's submissions in support of the allegation are vague and laden with imprecise inferences in support of his claim of a conflict of interest. Relevantly, other than the panel members and the successful candidate formerly working in the same department, there is no further particularisation of the conflict of interest claim.

[26] The fact that the panel members may have previously worked in the same department as a successful candidate, does not, without anything further, establish a conflict of interest. Relevantly, the panel members disclosed and acknowledged a prior working relationship with both the successful candidate and Mr Henning (as at the time of the selection process some of the panel members worked with Mr Henning in the department) and determined that no conflict of interest arose."

[29] The QIRC understood Mr Henning's allegation of unfair treatment based on the so‑called conflict of interest.[11] The QIRC identified the evidence from which Mr Henning sought to have the QIRC draw an inference that preferential treatment was given to the successful candidate.[12] Mr Henning's complaint is that the QIRC did not draw that inference.

[30] The drawing of inferences is part of the fact-finding function of a court or tribunal. Errors of law may occur, for instance where there is simply no evidence upon which the inference might be drawn, but I can discern no error of principle in the approach by the QIRC. The QIRC directed itself to the evidence and, as a matter of fact, did not draw the inference.

[31] There is nothing in grounds 3, 4 and 5 which show an error of law or jurisdictional error.

[32] None of the grounds of appeal have been made out.

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

[2] Public Service Act 2008, ss 194(1)(c) and 197. Now Public Sector Act 2022 ss 129, 130 and 133.

[3] Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487 at [21].

[4] See generally Porche v State of Queensland (Department of Education) [2022] ICQ 3, [6]-[7] and Algahamdi v State of Queensland (Queensland Health) [2022] ICQ 010.

[5] Re Queensland Electricity Commission; Ex parte Electrical Trades Union of Australia [1987] HCA 27; (1987) 61 ALJR 393 at 395 and O'Sullivan v Farrer [1989] HCA 61; (1989) 168 CLR 210 at 216.

[6] Comalco Aluminium (Bell Bay) Ltd v O'Connor (No 2) [1995] IRCA 540; (1995) 61 IR 455 at 479.

[7] Public Service Act 2008, s 194(1)(c).

[9] Industrial Relations Act 2016, s 562B(3).

[10] Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487 at [38]- [43].

[11] Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487 at [24].

[12] Henning v State of Queensland (Queensland Treasury) [2022] QIRC 487 at [24]- [26].