Williams v State of Queensland

Recruitment and Selection (Directive 07/23) cls 8, 9

• [1] Ms Nicole Williams ('the Appellant') is substantively employed by the State of Queensland (Queensland Corrective Service) ('the Respondent') as an Administration Officer, classification AO2.8(Q) at Woodford Correctional Centre ('WCC').

• [2] Ms Williams appeals a promotion decision in a recruitment process for two permanent Administration Officer (AO3) roles, namely job reference QLD/500895/23 for the vacancies of position numbers 736548 and 744309.

• [3] The role of Administration Officer (AO3) was advertised on the Queensland Government website, SmartJobs, on 13 July 2023 with a closing date of 31 July 2023, with the job reference QLD/500895/23 for the vacancy of position number 736548.

• [4] Subsequently, another Administration Officer (AO3) with the position number 744309 became vacant on 25 August 2023. Both AO3 roles were identical in their terms, classification level and role description. The roles were subject to the same selection process as a recurring vacancy under Recruitment and Selection (Directive 07/23) cl 8.19 ('the Directive').

• [5] The vacancy for position 736548 was advertised for the required period of time and the advertisement complied with the Directive. Conversely, the vacancy for position 744309 was not advertised. Instead, it was filled as a recurring vacancy, and the promotion decision for that position was made within 12 months of the closing date of the vacancy for 736548.

• [6] Written applications for both positions were shortlisted and interviews were subsequently conducted by a panel consisting of Mr Tony Boyle, Advisor Business Services as the Chair and two panel members: Mr Chris Gray, Advisor Business Services and Ms Melinda Schubert, Senior Advisor Business Services.

• [7] Of 13 candidates who were shortlisted for the role, 10 were interviewed. Three candidates withdrew their applications.

• [8] Ms Williams was shortlisted and then interviewed for both roles on 16 August 2023.

• [9] Ms Leigh Amos and Ms Shaelah Higgins were identified by the panel as being best suited for the position on the basis of merit.

• [10] A selection report was prepared and approved by Mr Chris Davis, Acting Chief Superintendent of WCC on 22 September 2023. The selection report details the selection strategies, techniques and decisions made by the panel in assessing applicant suitability against the role requirements. This included:

• An assessment of written applications against essential requirements of the role description to form a shortlist of candidates;

• Interviews of shortlisted applicants involving 10 minutes perusal time and a 40-minute interview during which time applicants responded to four structured questions related directly to the selection and role requirements, including workplace scenario and behavioural-based questions; and

• Pre-employment checks of the recommended candidate including two referee reports and a serious discipline declaration.

• [11] A Conflicts of Interest, Personal and Professional Relationships Declaration was considered by the authorised delegate whereby six of the shortlisted candidates were identified with professional relationships. However, the Respondent determined that no additional mitigating strategies were required for those professional relationships outside the standard panel procedures.

• [12] Ms Williams was advised by email from Queensland Shared Services on 16 October 2023 that the selection panel had completed the selection process for both positions. Ms Williams was notified that she had been unsuccessful in her application.

• [13] Ms Williams subsequently emailed the panel chair to request feedback. A meeting was arranged on 16 October 2023 to discuss this feedback, where Ms Williams was advised that it would be pertinent for her to 'elaborate more' when responding to questions, particularly around risk and impacts when making decisions.

• [14] Ms Williams then filed her appeal on 1 November 2023.

• [15] Queensland Corrective Services ('QCS') raises a jurisdictional objection on the basis that the threshold criteria for the progression of Ms Williams' appeal under cl 10.4(a) of the Appeals (Directive 04/23) have not been met, and that the appeal should be dismissed on that basis.

• [16] Clause 10.4(a) of Appeals (Directive 04/23) relevantly requires:

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 s 84(2) of the Act and;

• [17] Section 84(2) of the Public Sector Act 2022 (Qld) ('the PS Act') relevantly provides:

(1) This section applies if the chief executive of a public sector entity-

(b) The Chief executive must publish notice of the employment or secondment in the gazette or in another way the commissioner considers appropriate.

• [18] Ms Williams' appeal notice states that she was notified of the outcome of the AO3 recruitment process by email. At the time of Ms Williams' appeal notice on 1 November 2023, neither of the employment outcomes had been published in the Gazette.

• [19] QCS submits that the employment of the identified officer to the AO3 Administrative Officer position number 736546 was not Gazetted until 10 November 2023, 10 days after the Appellant's application to the Commission. In its submissions in response to the appeal, QCS said that the employment outcome for position number 744309 had not been published in the Gazette.

• [20] QCS says that notwithstanding the threshold point regarding the decisions not yet being published in the Gazette, both officers employed in position numbers 736546 and 744309 were permanently employed in AO2 Administration roles, and the decisions made to promote both officers is otherwise appealable pursuant to s 131(1)(e) of the PS Act.

• [21] The filed material indicates that following receipt of the email informing her of the outcome of the process, Ms Williams contacted the relevant officer to ask when the outcome might be published in the Gazette. The relevant officer informed Ms Williams that they were unable to tell her when the decision would be published. Ms Williams appears to have filed her appeal within 21 days of the day she received the email informing her of the outcome.

• [22] During the course of directions being in place for this appeal, the employment of the identified officer to position number 744309 was published in the Gazette on 8 December 2023.[2]

• [23] From a practical point of view, QCS, while raising the jurisdictional objection, has gone on to make submissions in response to the appeal. It is also the case that if I were to dismiss the matter on jurisdictional grounds, Ms Williams could simply submit a fresh appeal once the decisions had been published in the Gazette (which has now occurred). I am satisfied that it is not prejudicial to QCS for the appeal to be heard in circumstances where QCS has informed the Commission that the decisions are otherwise appealable. This is especially the case in circumstances where, for the reasons which follow, I have determined to confirm the promotion decision appealed against.

• [24] A public sector appeal to the Commission is by way of review and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[3]

• [25] For an appeal against a promotion decision, the Commission must decide the appeal having regard to the evidence available to the decision-maker when the decision was made, but may allow other evidence to be taken into account if the Commission considers it appropriate.[4]

• [26] In deciding an appeal against a promotion decision, the Commission may only set the decision aside if it finds that the recruitment or selection process was deficient. In determining if the process was deficient, the Commission is required to have regard to whether the process complied with the PS Act, a regulation or a directive made by the Public Sector Commissioner under that Act.[5]

• [27] Ms Williams filed her appeal on 1 November 2023. Her appeal grounds are, in summary:

• She has been working for the Respondent for 17 years as an AO2 and she has been at WCC since 2011.

• Ms Williams says she has 'done most of the Admin positions' at WCC during her tenure and for at least the last four years, she has been performing higher duties for

90% of the time, including at an AO3 level. She says she has been extended numerous times.

• She was performing higher duties when the 'job was called'.

• Ms Williams says she received the same feedback as other unsuccessful candidates. She says she was told to 'sell' herself more and 'go into more depth' on her resume.

• Ms Williams believes she has been 'overlooked' for other AO3 roles.

• On one occasion, Ms Williams says she was performing a particular role and asked to train a person in that position who later got the role.

• Ms Williams believes she is extremely capable of an AO3 role and has demonstrated this during her time at WCC while performing higher duties, especially over the last four years. Ms Williams asks, 'Why do I keep getting extended in these positions if I am not good enough to do them full time and someone that has never done the positions gets in?'.

• Ms Williams notes that there were two full-time positions available and one opportunity to perform in the higher duties position for six months, but she did not get any of these roles.

• Ms Williams says none of the successful applicants have the same experience as her. She says that the first successful candidate for a permanent full-time AO3 role is young, 'came over from the courts' and has only been at WCC for less than a year. Ms Williams says this candidate had not performed at AO3 level prior to getting the role, whereas Ms Williams has.

• Ms Williams says the second candidate who has been appointed to a permanent full-time AO3 role has only been at WCC for a couple of years, although she says, 'I must admit she has a little time in 1 of the AO3 positions as well as a little background in finance so I'm ok with that'.

• Ms Williams says she has 'more knowledge than any of the 3 people that got these positions'.

• She says she has 'spoken up before' and she is 'treated as an outsider'.

• Finally, Ms Williams believes she has performed with a high degree of professionalism and would like to be given a chance to further prove her suitability for a permanent, full-time AO3 role as she has done while performing higher duties.

Why the promotion decisions were fair and reasonable

• [28] Aside from the jurisdictional objection raised, the Respondent acknowledges that the promotion decisions are otherwise appealable under s 131(1)(e) of the PS Act.

• [29] However, the Respondent submits that that in her appeal notice, Ms Williams has not clearly articulated or identified any failings made by the Respondent in the recruitment and selection process. Instead, it appears to the Respondent that Ms Williams seeks to better understand the outcome of the recruitment and selection process. The Respondent says that the Commission is not the appropriate avenue to pursue this.

• [30] The Respondent reiterates that a public sector appeal is determined based on the evidence before the original decision-maker at the time the decision was made. Further, the Respondent says that the Commission can only set aside the decision if it finds that the recruitment and selection process was deficient having regard to the legislative framework.

• [31] Therefore, the Respondent says that the question for the Commission to consider is whether the recruitment or selection process from which the promotion decisions arose was deficient.

• [32] The Respondent considers that the promotion decisions are not deficient as the Respondent complied with both s 45 of the PS Act and Recruitment and Selection (Directive 07/23).

• [33] On 18 December 2023, Ms Williams filed submissions in support of her appeal. In these submissions Ms Williams says that she has been unsuccessful in many attempts to obtain an AO3 position despite having extensive experience relieving in AO3 positions without issue. Ms Williams states 'there is a bias existing in the workplace towards me'.

• [34] Ms Williams expresses dissatisfaction at feedback she received regarding her performance at interview and points out that 'not everyone is gifted with interviewing ability and it seems that performance on the job is not considered sufficient to impress a selection panel at Woodford Correctional Centre.'

• [35] In further support of her submission that the process was affected by bias, Ms Williams submits:

... The selection panel for the position under appeal comprised 3 Officers all from Woodford Correctional Centre.

Put simply, I don't believe I stood any chance of obtaining a position without an outside person to moderate any preconceived bias that panel members may have had.

It is my understanding that panel members should comprise of both internal and external members to ensure applicants are given an unbiased and objective hearing. This was not possible with the compilation of this panel.

In summary, I believe the compilation of the panel was sufficient to allow a reasonable person to contend that a perception of bias could have existed and influenced the decision-making process.

I ask that the decisions be overturned and that my appeal be allowed.

• [36] The Respondent's further submissions note that Ms Williams' submissions summarised above at [33] to [35] provide no evidence, other than the composition of the selection panel, to support her claim of bias. The Respondent says further that Ms Williams has also not provided evidence that the selection decisions were based on anything other than an assessment of relative merit and suitability having regard to the essential requirements of the role based on the assessed selection measure employed by the panel.

• [37] The Respondent then goes on to address the composition of the panel and Ms Williams' allegation of bias.

• [38] Clause 9.8 of the Directive states that to promote integrity and diversity in recruitment, selection panels must 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. The Respondent submits that the conflict-of-interest report[6] identified potential conflicts with the panel members and the Appellant.

• [39] Per cl 9.9 of the Directive, where a conflict of interest is declared under clause 9.8(a), the selection panel must consider and document any resolution or mitigation strategies. The only matter which was declared was that the Appellant reports to the members of the panel and so they had professional knowledge of her.

• [40] In accordance with cl 9.6 of the Directive, in determining the composition of the selection panel (which must include a minimum of two key people), a chief executive must consider diversity of the panel as a key factor for successful recruitment, particularly in the context of their obligations under chapter 2 of the PS Act. The Respondent submits that the panel comprised of the Panel Chair, Mr Boyle, and Panel members, Mr Gray and Ms Schubert. The Respondent says that the delegated decision-maker was Chief Superintendent McHaffie (though I note that in fact the delegate decision-maker was A/Chief Superintendent Chris Davis).[7]

• [41] The Respondent says that diversity of the panel was considered when comprising the members. The panel possessed gender diversity, while in terms of ensuring the mitigation of an unconscious bias relating to the Appellant's known work performance, the panel applied a consistent set of selection techniques equally for each candidate which were assessed against the essential requirements of the position and weighted accordingly by the panel. The Respondent also notes that the delegated decision-maker did not have direct professional knowledge of the Appellant's work performance.

• [42] QCS submits that the selection process ensured impartiality and had appropriate controls in place to address any potential risk of unconscious bias arising from knowledge of candidate work performance and was not deficient.

• [43] QCS says that Ms Williams has provided no evidence that the recruitment and selection processes and promotion decision was deficient and, on this basis, seeks that the Commission dismiss the appeal.

• [44] I agree with the Respondent that Ms Williams' appeal notice does not identify any deficiency in the recruitment and selection process. The content of Ms Williams' appeal notice could be described as reasons why she believes that she should have been appointed to one of the two positions which were filled.

• [45] In her further submissions, Ms Williams identifies her reasons for appeal and identifies issues with panel composition. Specifically, Ms Williams is concerned that all members of the panel are from the Woodford Correctional Centre and that therefore, there was no capacity for her to receive an unbiased and objective hearing at the interview.

• [46] I have reviewed clauses 9.5 to 9.9 of the Directive which address selection panels. With regard to Ms Williams' belief that there should have been a panel member from outside of the workplace, I note that the Directive does not require this. Ms Williams does not identify a source for her belief that the panel needed to include a member external to the workplace. The only requirement for an 'external' panel member is regarding senior executive vacancies where the panel must include one member from outside the ministerial portfolio.[8] I am satisfied that the fact that the panel was comprised of members who work at the Woodford Correctional Centre does not make the recruitment and selection process deficient.

• [47] The panel was required to consider and declare any actual, potential or perceived conflicts of interest between panel members and the applicants. I have reviewed the panel documentation and note that the panel completed a 'Conflict of Interest and Professional Knowledge Declaration'. This document is 21-pages long. With regard to Ms Williams specifically, pages one to six of the document are signed by panel members and each identifies that they understand what constitutes a conflict of interest in a recruitment and selection process; and they have identified any actual, potential or perceived conflicts of interest relevant to their involvement in the process. Mr Boyle and Ms Schubert further identify that they do not have a conflict of interest to declare relevant to their involvement with the recruitment and selection process. Professional knowledge of six candidates was declared and one panel member identified and declared that Ms Williams (and one other candidate) reports to them as supervisor.[9]

• [48] Clause 9.7 states that the decision-maker should generally not be a member of the selection panel. I am satisfied that the delegated decision-maker, A/Chief Superintendent Chris Davis, was not a member of the selection panel. I have reviewed Mr Davis's Conflict of Interest and Professional Knowledge Declaration and note that while he does not identify a conflict of interest, he does declare six of the 13 shortlisted candidates are current staff members of the Woodford Correctional Centre.[10] I further note the QCS's submission that the delegated decision-maker did not have personal knowledge of Ms Williams' work performance and that Ms Williams did not seek to make submissions to contradict this.

• [49] The panel set out in the Selection Report that no risk mitigation strategies applied to the process would be required as a result of the declarations made by the panel members.[11]

• [50] I have reviewed the Selection Report in its totality. There are detailed notes recorded for all candidates which indicate that each candidate was asked the same four questions and was allocated an overall score before the panel made a determination as to whether each candidate was suitable for the role. The Comparative Assessment is also detailed and clearly identifies the reasons why each of the four suitable candidates is recommended, including why they have been rated at either first, second, third or fourth most suitable candidate.[12]

• [51] The delegate considered the Selection Report and approved the recommendation of the panel.[13]

• [52] While Ms Williams may have a personal view that she should have been more highly rated compared to other candidates, she has been unable to identify or provide evidence of any deficiency in the recruitment and selection process.

• [53] I understand that Ms Williams is frustrated that she has been unsuccessful in many attempts to obtain an AO3 position despite her extensive experience relieving in such positions. I also understand Ms Williams' frustration that 'not everyone is gifted with interviewing ability'. It may be useful for Ms Williams to seek a meeting with her supervisor or the most appropriate person, to discuss any avenues which may be available to her to further develop her interview skills and to address any matters which were contained in the feedback she received.

• [54] While Ms Williams believes she has 'upset someone at Woodford Correctional Centre', that 'there is bias in the workplace existing towards me' and that the panel was biased towards her, she has not produced any evidence whatsoever to this effect. It is not unusual for panels to consist of people from the same workplace as applicants, and it is for this reason, in part, that the panel is required to consider potential conflicts, declare these and if necessary, put mitigations or strategies in place.

• [55] I am satisfied that the panel has complied with the requirements of the legislation and the directive. I am unable to identify any deficiency in the recruitment and selection process.

1. The decision appealed against is confirmed.

[1] This summary of the recruitment process is taken from the Respondent's written submissions. Ms Williams' reply submissions do not identify any errors in the process as described by the Respondent.

[2] Queensland Government Gazette, Vol 394, No 78, 2 December 2023, 609.

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

[4] Ibid s 562B(4).

[5] Ibid s 562C(2).

[6] Respondent's submissions filed 3 January 2024, Attachment 1.

[8] Recruitment and Selection (Directive 07/23) cl 9.8(e).

[9] Respondent's submissions filed 3 January 2024, Attachment 1.