Disgruntled psychologist airs rejection grievances

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Disgruntled psychologist airs rejection grievances

A disgruntled psychologist who unsuccessfully applied for three jobs has failed to convince a full bench the selection process was invalid.

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An unsuccessful job-seeker has lost his appeal to have a public sector recruitment selection process overturned by the Fair Work Commission.

Psychologist “BH” was employed with the Department of Education and Training on a two-year fixed term contract. He applied for three psychology jobs in the department that were advertised but was not successful for any of the positions. 

He then applied to the Fair Work Commission in a bid to have the selection process declared as incompatible with clause 21(2)(b) of the Victorian Government Schools Agreement 2013 (Reader note – this link opens a very large PDF file).

BH complained to the Fair Work Commission that:
  • the members of the selection panel had a conflict of interest that should have been disclosed
  • the conflict of interest skewed the panel’s decision-making
  • he was not given enough opportunity by the selection panel to demonstrate his abilities
  • the department breached its process and his confidentiality when it contacted a person for a reference given that he had not identified that person as a referee
  • the department did not determine the applications for employment solely on the principles of merit and equity 
  • he had greater merit as a candidate compared to the other candidates.

Decision at first instance


The commissioner in the first instance hearing of the case was not persuaded there was any actual or reasonably perceivable conflict of interest. He also considered that the selection panel was appropriately formed and structured.

The commissioner added that there was no evidence the psychologist had wanted to provide further relevant information to the selection panel but was prevented from doing so. The commissioner also found the interview panel conducted itself appropriately and that BH did not present himself as well as the other applicants. 

“The fact that [BH] did not perform well in the interview is not a matter for the selection panel to somehow bear responsibility,” said the first instance commissioner. 

The commissioner ruled against the psychologist, who then sought to appeal to the Full Bench of the Fair Work Commission “by way of rehearing”. 

The law


An appeal by way of rehearing under s604 of the Fair Work Act can only be made if the first instance commissioner made an error. There is no right to an appeal – it can only be granted with the permission of the Commission.

The Commission must grant permission to appeal “if it is in the public interest to do so”. The public interest test is not met if there is only a mere identification of an error or if a different result is preferred – there must be some issue of general importance and application. 

Grounds for appeal


BH appealed on the grounds the commissioner did not correctly or adequately consider that:
  1. there was a conflict of interest
  2. the reference checks adversely affected the decision of the panel; and
  3. the selection was not based on merit or equity as different members of the panel ranked applicants differently.
He also had a fourth ground of appeal: that the commissioner incorrectly concluded that he had accepted he did not perform well at interview.

However, the Full Bench ruled that, on the evidence available, it was open to the first instance commissioner to rule against BH on the first three points. 

Specifically, in response to the claim that different members of the panel marked the candidates differently, the Full Bench commented that “it is unremarkable that members of a selection panel may have differing views as to the ranking of various candidates in a selection process. The process of a selection panel working through differences, understanding the basis of each other’s opinion and reaching a consensus on the best candidate for a position is a critical part of the selection process.” 

On the fourth ground of appeal, the Full Bench ruled that there was no evidence to say that BH had accepted he had not performed well. However, there was plenty of evidence that BH did not do well in the eyes of the selection panel and an inference could not be drawn that BH was unfairly marked down. 

Held


The Full Bench considered that there were no matters of law or policy of general importance nor was there such substantial injustice that an appeal should be granted.

Permission to appeal was refused and the case was dismissed. 

BH v The Secretary of the Department of Education and Training on behalf of the State of Victoria (C2016/7611)
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