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Hair v State of Queensland (Queensland Health) [2021] QIRC 422 (10 December 2021)

Last Updated: 14 December 2021

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
Hair v State of Queensland (Queensland Health) [2021] QIRC 422
PARTIES:
Hair, Jennifer
(Appellant)
v
State of Queensland (Queensland Health)
(Respondent)
CASE NO:
PSA/2021/365
PROCEEDING:
Public Service Appeal – Fair Treatment Appeal
DELIVERED ON:
10 December 2021


MEMBER:

HEARD AT:
Pidgeon IC
On the papers
OUTCOME:

CATCHWORDS:
The decision appealed against is confirmed.

PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - PUBLIC SERVICE APPEAL - appeal against a fair treatment decision - where the appellant requested a flexible working arrangement to enable remote work from interstate - where the employer denied the request on the basis of face-to-face contact being a requirement of the position - whether the decision was fair and reasonable.


LEGISLATION:


Industrial Relations Act 2016, s 562B, s 562C

Public Service Act 2008, s 194

Individual employee grievances Directive 11/20

Reasons for Decision

Background

The decision being appealed

My considerations

I appreciate that your request is based upon your desire to relocate to New South Wales to enable you to move interstate with your partner. On a personal note, I am very happy for you and for your new relationship. I can certainly understand that you would want to be with your partner as he progresses his career.

In the context of growing vaccination rates in Queensland and New South Wales, it is possible that interstate travel will become easier. If this does occur, it is possible that mandatory 14-day quarantine will not be required. However, even without that requirement, it would still be very difficult for you to adequately respond to a request for in-person support in a timely way. And, as you know, a request for attendance at a QIRC hearing will usually occur at very short notice, meaning that you would be unlikely to be able to support your colleagues by sharing that requirement of the Workplace Relations role. Similarly, it is not unreasonable to anticipate that your client would, on occasion, request your attendance in person and with short notice to assist on an interview panel, provide coaching/guidance to a line manager, resolve a conflict, or facilitate a discussion. I am unable to envision a sustainable model which would allow you to commute from New South Wales on short notice to fulfil the expectations of your substantive role

My decision

For the reasons outlined above, I am unable to support your request for a remote working arrangement from New South Wales. I have given consideration to the reason for your request and to the potential impact on you for this request to be declined. On balance however I am of the view that it is not possible to implement your request while also maintaining equity and fairness for the rest of the team.

As you know, HR policy C5 provides employees with the opportunity for review. You may wish to escalate your request to Taresa for fresh consideration and response; or, you may lodge a complaint; or, you may lodge an appeal with the QIRC.

I want to assure you that I have given this a lot I thought; I haven't taken this decision lightly. I am mindful of the precedent which would be set, not only for our team but for the whole organisation and more widely for QH. Our roles have such a strong emphasis on coaching line managers and uplifting their capabilities, and sometimes this just needs the in-person touch. Taking everything into account, I can't see a way that I can support your request.

Is the Appellant entitled to appeal? Respondent submits 'appeal not competent'

Appeal Principles

(a) confirm the decision appealed against; or

...

(b) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. Ms Bain has not considered the principles outlined in the FWA Policy and the FWA Guideline, specifically by considering the application on its own merits.
  2. Ms Bain has been unable to formulate reasonable grounds as to why the arrangement would not be successful and has based this instead on hypothetical issues that have not occurred in the last 18 months, if not longer.
  3. Ms Bain has not worked with me to find solutions that best meet work, team and personal needs, which considering Ms Trayling was not involved in the process would suggest that she has not been able to provide her commentary on how it would work best with the team. I am concerned that Ms Prince may also not have been part of providing information noting that she would have been able to articulate the role that I have undertaken since 22 February 2021, as the Workplace Relations Advisor. Had Ms Bain engaged with me further in relation to this I could have explored further options with her such as including a 6-month trial period, or a different frequency of working - for example two weeks in Queensland for every 4 weeks in NSW, or one month per quarter in Queensland.
  4. Ms Bain has not considered that I have been able to perform both roles successfully and to a high standard working remotely and to date no concerns have been raised with me by Ms Bain, Ms Prince, Ms Trayling, other team members or my client group.
  5. Ms Bain has not considered the significant impact that this will have on my personal relationship, noting my partner who works in the Army, has been posted to Sydney temporarily. I do not believe that Ms Bain has considered how the West Moreton Health region, which contains of one of the largest Defence Force bases, can support me in what will already be challenging circumstances for me both in a personal and work environment following the posting of my partner who is employed by the Army.
  6. Ms Bain has not considered alternative options and instead declined the request without due consideration around the key principles. Ms Bain has not offered any alternatives around what may suit the business despite me acknowledging to Ms Bain that I am aware that flexibility will be key in this arrangement and I demonstrated my willingness to negotiate timeframes.

Department submissions

Background

Ms Hair's application

Considerations for request for flexible working arrangements

(a) Case-by-case basis using a team approach that considers fairness, diversity and inclusion, the guiding principles and legislative and operational requirements.

(a) Each request should be given due consideration on a case-by-case basis, with a starting position of curiosity and exploration about how we can make this work;
(b) Take a strategic approach to flexible working arrangements by identifying the benefits to the work unit; and
(c) The focus of the decision should be on potential outputs, outcomes and performance, rather than time spent in the workplace.

Benefits to the work unit

Outputs, outcomes and performance

Ms Hair's further submissions

Respondent's further submissions

Impact of the COVID-19 response

Further submissions in reply from Ms Hair

Consultation with team

Consideration

FWA Policy (C5)

Flexible working options are to be considered in an equitable manner for the whole work unit. Client service and patient care is not to be compromised as a result of flexible working arrangements.

The approving delegate may approve a request in its entirety, in part, subject to specific conditions or decline the request.

Consideration of the request

Context

Nature of the role and work undertaken by Ms Hair and the team

Telecommuting means working away from the usual or designated work centre, often at home. It can be for short periods or part of a long-term arrangement, and can occur on set days or arranged as the work demands. All the equipment and resources needed to do the job saftey should be accessible.

Telecommuting may not be practical if the job requires:

.....

Delegate must be as fair and equitable as possible

Ms Hair's Grounds of Appeal


[1] Appeal notice filed 15 October 2021.
[2] Cl 5.
[3] Perusal of the policy suggests that the clause referred to here is cl 2.1 of Attachment 1 to Policy C5.
[4] Respondent submissions 2 November [34].
[5] Respondent submissions 2 November [25], Complex case management relating to matters such as workplace investigations, industrial matters and performance management; HR advisory and consultancy services; building and sustaining partnerships with stakeholders and facilitating working relationships which improve internal capability and HR outcomes; coaching leaders and providing advice and guidance; and learning and contributing to the development of HR initiatives.
[6] Respondent submissions filed 23 November 2021, [14]-[15].
[7] Previous submissions addressed interactions between Ms Trayling and Ms Hair that led to Ms Trayling removing herself from the decision making process.
[8] Cl 2 refers to Industrial Relations Act 2016, s 27.
[9] Appeal notice filed 15 October 2021, [14].
[10] Guideline for Flexible working arrangements cl 2.


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