Peroni v State of Queensland

Goodall v State of Queensland [2018] QSC 319

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162

Parmar v State of Queensland (Queensland Health) [2024] ICQ 14

Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3

Wirth v Mackay HHS & Anor [2016] QSC 39

[1] Ms Sandra Peroni is an Environmental Health Officer with Metro South Health ('Metro South'), which is the Respondent in this proceeding. Ms Lesley English is the Executive Director, Community and Oral Health Services of Metro South.

[2] On 3 March 2025, Ms English issued a decision in relation to a formal grievance lodged by Ms Peroni. Ms Peroni sought an internal review of Ms English's decision.

[3] Mr Adam Lavis is the Acting Chief People Engagement and Research Officer for Metro South. Mr Lavis conducted the internal review of Ms English's decision and conveyed his decision to Ms Peroni on 7 May 2025. By virtue of these proceedings, Ms Peroni seeks to overturn Mr Lavis's decision.

[4] The original event that was the flashpoint for the grievance and everything which followed that has led to this appeal was a decision to appoint another person to the position that Ms Peroni sought appointment to via an open recruitment process.

[5] Appeals like this one made under s 130 of the Public Sector Act 2022 (Qld) ('PSA Act') are a review only. They are not a re-hearing of whatever the decision maker was considering. Nor are they a rehearing or investigation into whatever the original incident or allegations were. [1] The focus is the written decision in issue, and the test is whether that decision was 'fair and reasonable' in the circumstances. That requires assessing whether the conclusions reached by the decision maker were open to them to make based on the materials before them at the time of making the decision. It is not the Commission's role to disturb a decision based on inferences that were open to be drawn, even if the Commission would have reached a different conclusion.[2]

[6] The Commission has power to set aside a decision and substitute it for another if it finds the decision was not fair and reasonable. The other main remedy is to issue reasons and require the decision to be re-done in light of those reasons.

[7] Whether a decision is not fair and reasonable generally tends to be where an injustice has arisen because of it, or the way it was reached. As noted above, that can be where a conclusion was reached that was not open to the decision-maker based on the material before them at the time. Another example is a decision-maker failing to allow an appellant a reasonable opportunity to be heard on something that the decision maker decided.

[8] Mere disappointment with the outcome of a relevant appealable decision is not enough to establish it was not fair and reasonable.[3] There must be some sort of practical injustice proven to be present in the relevant decision before an appeal of this nature can succeed.[4]

[9] Having regard to the scope of these appeals, the only issue that can be addressed is whether Mr Lavis's decision was fair and reasonable. That is important to bear in mind because several challenges that Ms Peroni seeks to agitate are, in my opinion, beyond the jurisdiction of these appeals.

Why Ms Peroni cannot run some of the arguments she runs in this appeal

[10] The fountainhead for these proceedings was a 'promotion decision' as defined in s 129 of the PS Act.[5] Ms Peroni applied for a position at a higher level to the one she was 'permanently' employed in via an open recruitment process. The position went to someone else.

[11] The appeal mechanism for challenging a promotion decision is in s 131(1)(e) of the PS Act. To appeal such a decision, Ms Peroni needed to have lodged a promotion decision appeal within 21 days of publication of an appointment into the position. No such appeal was lodged; Ms Peroni instead chose to take the grievance and internal review path.

[12] A 'fair treatment decision' is any decision that a public sector employee believes is unfair and unreasonable.[6] A fair treatment decision can also be appealed, and the same limitation period of 21 days applies.

[13] However, there is an important legal difference between appealing a promotion decision and later appealing a fair treatment decision about who got the promotion or job and why the appellant missed out. As Metro South points out, and I accept, Mr Lavis's decision is a fair treatment decision. A lot of it deals with Ms Peroni's grievances about the original promotion decision. Several parts of Ms Peroni's appeal of Mr Lavis's decision, the majority in fact, therefore, attack the process and decision around who got the job and why. Remembering that this is a fair treatment decision appeal, the PS Act is very clear:

132 Decisions against which appeals can not be made

(4) A person can not appeal against a fair treatment decision -

(c) relating to the recruitment or selection of a public sector employee;

[14] Parmar v State of Queensland (Queensland Health) ('Parmar')[7] was an appeal to the Industrial Court of Queensland where her Honour, Hartigan DP, considered a case that was legally and factually similar to this one. That included what the correct construction of s 132 of the PS Act was, and in particular, s 132(4)(c). In that case, her Honour considered what a decision 'relating to the recruitment or selection of a public sector employee' means, observing that '[t]he purpose of s 132 of the PS Act is to identify a decision against which an appeal cannot be made.'[8]

[15] In Parmar, her Honour observed that the appellant's complaints simply challenged a later decision about his grievances over the recruitment process as well as complaints about how those grievances were handled. Her Honour accepted the Commission's finding below that the 'practical reality' was that the grievance related solely to the appointment of a candidate to the relevant position.[9] It followed, her Honour accepted, that the appellant's arguments were each related to the recruitment and selection of a public sector employee.[10] Her Honour concluded therefore that the appellant was seeking to appeal a decision that could not be appealed.[11]

[16] In this case, Ms Peroni describes some of her appeal grounds as elements of unfairness or unreasonableness of Mr Lavis's decision. On close inspection, however, it is clear that these arguments relate to the decision about who won the position and why Ms Peroni did not. To adopt the relevant wording of Parmar, the 'practical reality' of those arguments is that they are in relation to the recruitment and selection of a public sector employee. Those parts of the appeal cannot be heard because s 132(4)(c) of the PS Act expressly prohibits doing so.

[17] That includes complaints about bias on the selection panel and the way the panel was comprised. Also, Ms Peroni's challenge to the manner and timing of the selection process relate to the recruitment or selection of a public sector employee in my opinion and cannot be appealed.

[18] In her appeal form, Ms Peroni also argues under the heading 'disclosure of information' further grievances in relation to what she says she observed to be interactions between panel members and the 'preferred candidate post-interview.' In my view these arguments are also related to the recruitment and selection of a public sector employee and cannot form part of this appeal.

[19] Ms Peroni has also raised 'concerns about bias arising from [her] role as a union delegate not having been adequately addressed.' On my assessment, the issue Ms Peroni is agitating here is that it was her activities in the role of union delegate which inspired bias against her. Once again, this is an argument about the recruitment and selection process on the basis of claimed bias. It too is obviously a complaint in relation to the recruitment or selection of a public sector employee. It is therefore outside the scope of any appeal that can be considered in relation to Mr Lavis's decision, even where he discusses or deals with those issues. Mr Lavis's decision is a fair treatment decision. To the extent it deals with complaints or grievances about the recruitment and selection of a public sector employee, it cannot be the subject of an appeal in my opinion.

What aspects of Ms Peroni's appeal can be heard?

[20] There are two grounds of appeal in Ms Peroni's Form 89 Appeal notice that do not relate to the abovementioned recruitment and selection process. The first is about alleged deviations from policy/procedure when considering an application for a flexible workplace arrangement ('FWA'). The second is about alleged breaches of the relevant policy and procedure regarding how the grievance was handled with particular focus on the time it took.

[21] There are two parts to the FWA issue. The first is that Ms Peroni sought a permanent change to her HR reporting line on the basis that she felt unsafe. The second is a request to change from full-time to three days a week.

The application for a change to HR reporting line

[22] In Ms English's decision, she observed that when Ms Peroni asked for the change in HR reporting, she was asked to provide particular instances where she felt unsafe under the existing HR reporting line and the reason why Ms Peroni sought the proposed change. Ms English observed that Ms Peroni declined to provide further information because she said she felt unsafe doing so.

[23] In consideration of that, Ms English concluded that the relevant person making those inquiries of Ms Peroni acted appropriately. Ms English pointed to that person taking adequate steps to determine Ms Peroni's concerns about the HR reporting line due to not feeling safe. Ms English also outlined attempts by that person to initiate mediation between the HR report and Ms Peroni, observing that those attempts were somewhat thwarted by Ms Peroni experiencing a death in the family and the process being put off to one side accordingly.

[24] Ms English acknowledged that this HR reporting line change process had stalled but then subsequently moved swiftly when, in February 2025, a new HR report was appointed. Ms English observed that this was not a result of the concerns that Ms Peroni had escalated, but rather, the result of changes to the structure around staffing within the organisation regarding aligning staff with relevant portfolios.

[25] Acknowledging the somewhat accidental success with the application to change HR reporting, Ms English concluded that those initially handling the matter took appropriate steps to address Ms Peroni's concerns. Ms English acknowledged that Ms Peroni's concerns warranted a change in reporting line and that it would have been appropriate to have consulted her before any decision was made. However, Ms English formed the view that the proposal to engage in mediation was also appropriate in the circumstances.

[26] In the decision under appeal, Mr Lavis reviewed those conclusions by Ms English that I have described above. Mr Lavis acknowledged the concerns raised by Ms Peroni but concluded that none of that significantly impacted the outcome that was previously communicated. Mr Lavis concluded that he believed Ms English's response in this instance did not warrant a revision of the decision. In short, Mr Lavis accepted all the reasoning and conclusions reached by Ms English and formed the view that those conclusions were open. I construe that to be primarily because Ms English relevantly found that the requested change in HR reporting line had come about, albeit accidentally, and that the initial handling of the matter was adequate, although not perfect.

[27] In my opinion, that conclusion was open to Mr Lavis to reach. That is because it was obvious on the face of Ms English's decision as to why she had reached those conclusions. Her reasons were clearly set out as being the basis for her conclusions. It was open to Mr Lavis to simply read that, and the other materials, and agree; not only with the conclusions reached by Ms English but also with her underpinning reasons for doing so. In reaching that conclusion Mr Lavis clearly found Ms English's decision under this point of the appeal to be fair and reasonable. That assessment was the task required of him when carrying out his review of Ms English's decision. That was, in my opinion, a fair and reasonable conclusion for Mr Lavis to reach in the circumstances. This part of this FWA ground of appeal therefore fails.

[28] The second part of this ground of appeal is the FWA request to convert from full-time to 3-days-a-week. In summary, the stated ground of that appeal point is that the approach taken to Ms Peroni's FWA request breached 'internal protocols and reflects a pattern of decisions that undermine my wellbeing in the workplace.' Since the appeal is of Mr Lavis's decision, I construe this to be arguing that Mr Lavis's agreement with Ms English's decision is said to be unfair and unreasonable because it affirmed or condoned the alleged breach of 'internal protocols and reflects a pattern of decisions that undermine [Ms Peroni's] wellbeing in the workplace.'

[29] At the heart of this issue is Ms Peroni's argument that she received conflicting advice as to whether FWAs were considered only on a permanent basis, not temporary.

[30] In Ms English's decision, she observed that Ms Peroni's FWA application sought to reduce her hours from full-time to 3-days-per-week, either on a temporary or permanent basis. The proposed arrangement was approved on a temporary basis (three months). Ms English observed that Ms Peroni made a subsequent application to extend the arrangement, which was granted. Ms English was satisfied that the process undertaken to review and consider Ms Peroni's FWA request was consistent with the requirements of the policy that Ms Peroni alleged had been breached. That policy is described as 'HR Policy C5.' It is a policy providing for FWAs.

[31] It is clear that Ms English identified the issue, which was the claim that Ms Peroni was misinformed about whether FWAs were approved only on a temporary basis, then at another time said to be approved only on a permanent basis. Ms English concluded that any misinformation provided was not intentionally designed to limit Ms Peroni's application to being for a temporary FWA. Ms English reasoned that that was because Ms Peroni's original request was actually unclear because it sought the change on either a temporary or permanent basis.

[32] Ms English formed the view that whilst Ms Peroni may have perceived the line of questioning in relation to her application as evidence of the leadership team leaning towards one particular approach, it was more reasonable to determine that they were simply trying to understand how best to support Ms Peroni. Ms English also considered that any encouragement from the leadership team members relating to a temporary arrangement, as opposed to a permanent one in the first instance, was designed to ensure that any decisions made were actually sustainable for Ms Peroni, both personally and professionally. Ms English observed that the relevant provisions of HR Policy C5 indicated that FWAs can be considered on a permanent basis however, in most cases, applications are temporary in nature. Based on the documentation Ms Peroni submitted with her FWA, Ms English formed the view that it was not unreasonable for those reviewing the FWA application to consider it was one seeking a temporary arrangement.

[33] Coming to the relevant decision under appeal, Mr Lavis's review of Ms English's decision concerning the FWA, Mr Lavis set out the relevant claims by Ms Peroni. In particular, that Ms English's findings supported management and that a statement by Ms English - that she would have considered it concerning if the request had been determined to be permanent - does not support the approach actually taken by those reviewing the FWA application. Mr Lavis concluded that Ms English's approach was not inconsistent with HR policy C5. Mr Lavis acknowledged that it is important that interpretations of policy be aligned with established guidelines. However, based on the information provided, Mr Lavis was of the view that Ms English's response in this instance did not warrant a revision.

[34] Mr Lavis's conclusions were open to him to come to in my opinion because he clearly had a sound and rational basis for finding that Ms English's decision was not at odds with the policy. There is no error in any of Mr Lavis's conclusions in my opinion. Ms Peroni does not point to any error either. Ms Peroni has failed to identify any unfair or unreasonable aspect of this part of Mr Lavis's decision in the sense that a conclusion was not open or some sort of error in the decision gives rise to an injustice. This part of the appeal must therefore fail.

[35] As to the timeliness and other submissions on the grievance process that Ms Peroni advances, I accept Metro South's submissions on this point. It seems to me that Ms Peroni's submissions contain many claims that are ambiguous and do not articulate a clear point of appeal. Many do not actually engage with the appeal grounds at all. Ms Peroni does not, for example, point to a conclusion within Mr Lavis's decision and argue why it specifically was not open to be drawn and was therefore not fair and reasonable.

[36] Ms Peroni makes sweeping claims about 'procedural deficiencies' which are not particularised or developed. Ms Peroni does not give any indication as to how such deficiencies amount to grounds of appeal against Mr Lavis's decision either. Ms Peroni appears to have fundamentally misunderstood the nature of this appeal. It is not an opportunity to forensically examine the entire grievance process or decisions taken along the way. A long list of grievances in Ms Peroni's submissions about the way the grievance (or investigation) should have been handled by referring to documents disclosed as part of Metro South's obligations under orders do not advance the appeal. None of that relates to or engages with a ground of appeal in my opinion.

[37] To the extent that Mr Lavis's decision deals with Ms Peroni's complaints about compliance with the grievance policy, Mr Lavis set out those concerns, including a chronology of the relevant events. He considered the grievance policy which he correctly identified as the "Queensland Health Human Resources Policy E12: Individual Employee Grievances."

[38] Mr Lavis observed that this policy provided that a decision about an employee grievance should be made as soon as possible but must be made within 28 calendar days of receipt of the employee grievance. That is, unless that 28-day timeframe has been extended by mutual agreement between the parties. Mr Lavis observed also that the policy says that a party is not to unreasonably withhold their agreement for extending this timeframe.

[39] Mr Lavis further took note that within the acknowledgement letter Ms Peroni received about her grievance, she was advised that there were two reasons why the 28-day turnaround needed extending. First, a compulsory closure was imminent because of the expected impact of a cyclone. Second, Mr Peroni's grievance was very complex. That acknowledgement letter also, Mr Lavis observed, provided that Ms Peroni would be given reasonable updates in due course. Mr Lavis observed that on 24 January 2025, Ms Peroni was provided with further advice that the matter was still progressing and was encouraged to contact 'Human Resource Management' with any questions.

[40] Mr Lavis acknowledged that Ms Peroni's agreement to extend the 28-day timeframe for a decision on the grievance was not explicitly obtained. Mr Lavis advised that he would provide that feedback both to Ms English and Human Resources. He considered that the time taken by Ms English to review and respond to Ms Peroni's concerns as well as the steps taken, including obtaining relevant information for several complex matters, meant that the time taken was reasonable and had not resulted in a detriment to Ms Peroni. On the material before him at the time, that conclusion was open to be drawn by Mr Lavis in my opinion.

[41] Mr Lavis also attached a copy of the grievance policy to the decision. I have reviewed the above-mentioned policy and the procedure within it titled "Individual employee grievance process.'' Mr Lavis correctly observed that a 28-day turnaround of the grievance was a requirement. However, it is also correct that the procedure expressly provides that any agreement to extend that timeframe could be reached. Importantly, Mr Lavis's other observation was also correct: that the procedure stated that such agreement must not be unreasonably withheld.

[42] In my opinion, Mr Lavis did consider all of the relevant circumstances. That included the fact that no exact timeframe was provided to Ms Peroni for the extension of time within which the delegate expected to be able to respond to Ms Peroni's concerns. It also included consideration of the fact that Ms Peroni's agreement was not 'explicitly obtained.' Mr Lavis's reasoning is brief, however, it is clear to me that he formed the view that because it was explained to Ms Peroni that the 28-day turnaround would not be achievable in the circumstances, it would have been unreasonable for Ms Peroni to withhold her agreement to the proposed extension and, importantly, Ms Peroni did not in fact withhold her agreement to the proposed extension. Accordingly, Mr Lavis concluded that the time taken was reasonable in the circumstances and there was no detriment to Ms Peroni as a result. On my assessment of the facts before Mr Lavis, that conclusion was open to him for the reasons I have stated. On the facts, Ms Peroni did not withhold agreement to the proposed extension of the 28 day turnaround. Nor could she have reasonably done so in the circumstances. She would have been in breach of the policy if she had. Mr Lavis was clearly alive to that when he concluded the period of time was reasonable in all of those circumstances he set out and considered. It was open to him to conclude as such in my opinion. I consider this part of the decision was fair and reasonable and this part of the appeal therefore fails.

[43] Ms Peroni appears to have misconceived much of her appeal. The appeal is not a vehicle by which Ms Peroni can challenge any aspect of the recruitment and selection process dealt with in Mr Lavis's fair treatment decision. Two of the arguments Ms Peroni raises are capable of being heard on appeal. However, those relevant conclusions within Mr Lavis's decision were open to him to reach in my opinion. I therefore conclude that the decision was fair and reasonable and the appeal is dismissed.

1. The appeal is dismissed
2. The decision is confirmed.

[1] Goodall v State of Queensland [2018] QSC 319 [5], cited by Dwyer IC in Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 [7].

[2] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3 [30]; Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 [8].

[3] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 [82]-[83], [85], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6; (2003) 214 CLR 1.

[4] Ibid [79] citing Wirth v Mackay HHS & Anor [2016] QSC 39.

[5] promotion decision means a decision to promote a public sector employee employed on a permanent basis, Public Sector Act 2022 (Qld) ('PS Act') s 129.

[6] s 129 PS Act.

[7] [2024] ICQ 14.