WESTERN AUSTRALIAN INDUSTRIAL RELATIONS COMMISSION CITATION : 2017 WAIRC 00725 CORAM : COMMISSIONER T EMMANUEL HEARD : FRIDAY, 21 JULY 2017 DELIVERED : MONDAY, 14 AUGUST 2017 FILE NO. : APPL 13 OF 2017 BETWEEN : PETER ADAMS Applicant AND MS ANNE NOLAN, DIRECTOR GENERAL DEPARTMENT OF FINANCE Respondent CatchWords : Industrial law (WA) - Decision to register a registrable employee - Whether the regulations have been fairly and properly applied - Whether the employee could be transferred - Whether the selection processes complied with the merit principle and the transparency principle Legislation : Public Sector Management Act 1994 (WA) s 95, s 95(2), s 95(5), s 97(1)(a) Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) reg 18, reg 30 Industrial Relations Act 1979 (WA) s 23(2a), s 26(1)(a) Result : Application dismissed Representation: Applicant : Mr P Adams Respondent : Mr N van Hattem (of counsel) Case referred to in reasons: Collard v Chief Executive Officer Department for Child Protection and Family Support [2016] WAIRC 00733; (2016) 96 WAIG 1450 1562 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. Reasons for Decision 1 Mr Adams has been employed in the public sector for many years. About five years ago he was transferred into an Assistant Director (AD) position at the Department of Finance. That position was abolished in May 2014. Although Mr Adams is still employed by the Department of Finance, he has not produced any work for the Department since his position was abolished. 2 From 2014 to 2016, Mr Adams applied for various positions in the Department. He either did not accept those positions or was not the successful candidate for those positions. The Department decided that Mr Adams could not be transferred to a position within the Department and registered Mr Adams. 3 Mr Adams has referred to the Commission under s 95(2) of the Public Sector Management Act 1994 (WA) (PSM Act) the Department of Finance’s decision on 31 January 2017 to register him under reg 18 of the Public Sector Management (Redeployment and Redundancy) Regulations 2014 (WA) (Regulations). 4 Regulation 18 sets out the circumstances where the Department may register Mr Adams. The main issue in dispute is whether Mr Adams could be transferred within his department or organisation. 5 Mr Adams says the Department did not fairly or properly apply reg 18 when it decided he could not be transferred to six particular positions. In summary, he says this is because the Department’s assessment was not based on merit and lacked transparency. He wants me to order that the Department revoke his registration. 6 The Department says Mr Adams could not be transferred and it fairly and properly applied reg 18 when it registered Mr Adams. What must I decide? 7 In exercising the Commission’s jurisdiction, I must decide whether the Regulations have been fairly and properly applied to, or in relation to, Mr Adams: s 95(5) PSM Act. 8 In his notice of referral, Mr Adams sets out two main arguments. Before the hearing, he discontinued the second argument, which related to performance management. 9 In effect, Mr Adams’ argument is that the Department’s assessment that he could not be transferred into the six positions was not sound because it was not based on merit and lacked transparency. 10 Although Mr Adams disagrees with the selection panels’ conclusions about his capabilities and he does not concede that he does not meet the selection criteria for the six positions, Mr Adams is not challenging the selection panels’ conclusions because he considers it would be difficult to prove their conclusions were not fair or proper. He adds that his views about his own capabilities are not relevant. 11 Although I must consider the Department’s selection processes for the six positions in resolving this matter, considering whether the Regulations have been fairly and properly applied in relation to Mr Adams is a broader question. As I made clear to the parties before and at the hearing, that involves considering all the relevant circumstances that led to the Department deciding to register Mr Adams. 12 Section 23(2a) of the Industrial Relations Act 1979 (WA) (IR Act) excludes the Commission’s jurisdiction where a procedure referred to in s 97(1)(a) of the PSM Act is prescribed. This means that to the extent that Mr Adams seeks relief in respect of a breach of public sector standards, the Commission does not have jurisdiction to deal with his claim. Mr Adams says, and the Department does not dispute, that he does not argue that the Department breached public sector standards. The Department does not argue that the Commission’s jurisdiction is excluded because a procedure referred to in s 97(1)(a) of the PSM Act is prescribed. Legislative framework 13 Under the Regulations, an employing authority can determine that an employee may become a registrable employee. This means the employee is surplus to requirements or his position has been abolished. The employing authority must give written notice to, and consult with, the employee as soon as practicable after making this determination. Once an employee becomes a registrable employee, the employing authority may, after giving that employee written notice, transfer the employee to a new position. If the employing authority is satisfied that the employee cannot be transferred, it can offer the employee voluntary severance or, after giving the employee written notice, register the employee. If the registered employee cannot find new employment before the end of his redeployment period, which is usually six months, then his employment is automatically terminated under the Regulations and he is entitled to redundancy pay. 14 Under s 95 of the PSM Act, an employee aggrieved by a section 94 decision may refer the decision to the Commission as if it were an industrial matter. 15 It is common ground that the Department made a section 94 decision when it made a decision under reg 18 to register Mr Adams. 16 Regulation 18(1) states: 18. Registration of registrable employee (1) The employing authority of an employee may register the employee in accordance with the Commissioner’s instructions if — (a) the employee — (i) has been given a notice under regulation 9(1); and (ii) is a registrable employee; and 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1563 (iii) cannot be transferred within his or her department or organisation; and (b) at least 14 days before the day of registration, the employing authority has given the employee written notice of the employing authority’s intention to register the employee. 17 In deciding this matter, the Commission is confined to determining whether or not the regulations have been fairly and properly applied: s 95(5) of the PSM Act and the Commission exercises its jurisdiction in accordance with equity, good conscience and the substantial merits of the case: s 26(1)(a) of the IR Act. 18 Although he was considering a different regulation and set of facts, I agree with Kenner SC’s general observations at [14] of Collard v Chief Executive Officer Department for Child Protection and Family Support [2016] WAIRC 00733; (2016) 96 WAIG 1450. 'Fairly and properly applied' should be given its ordinary meaning. According to the Shorter Oxford English Dictionary, 'fairly' means 'Equitably, candidly, impartially…Becomingly; proportionately…legitimately'. Likewise, 'properly' means 'Excellently; genuinely, thoroughly…Suitably, appropriately'. Mr Adams and the Department agree with that construction. 19 Mr Adams argues Parliament intended that involuntary termination under the Regulations is to be a last resort. He says that is clear from the Standing Committee on Legislation in Report 22 on the Workplace Reform Bill 2013. Given that an employee cannot appeal the automatic termination of his employment that will occur under reg 30 of the Regulations six months after he is registered if he does not get a new position, Mr Adams argues that this means the decision to register the employee must also be a last resort. 20 It is clear from reg 18 that if an employee can be transferred, he may not be registered. Here, to fairly and properly apply reg 18, the Department would need to conclude, on reasonable grounds, that Mr Adams cannot be transferred to another position. That is at the heart of the dispute. The Department says Mr Adams could not be transferred, while Mr Adams says the Department wrongly reached that conclusion because the selection processes it used for the six positions was flawed. The circumstances leading up to the Department’s decision to register Mr Adams 21 Mr Adams gave evidence at the hearing. The Department did not lead evidence at the hearing. The parties assisted the Commission by providing a comprehensive statement of agreed facts and confirming that the 14 documents attached to Mr Adams’ notice of referral are agreed documents. 22 Mr Adams was allocated a case manager on 22 July 2014 to provide him with information and assistance. He agrees that he was appropriately case managed throughout the redeployment period. 23 The Department identified more than 90 potential Level 8 positions for Mr Adams between May 2014 and February 2017. Mr Adams says, and the Department does not dispute, that Mr Adams unsuccessfully applied for 64 positions in that time period. The Department facilitated 12 of those applications. 24 In August 2014, Mr Adams was asked if he was interested in a Level 8 Assistant Director position at Building Management and Works, in Osborne Park. In September 2014, Mr Adams received an informal employment offer as a Level 8 Project Officer at the Department of Health, also in Osborne Park. At the time, Mr Adams told the Department that he was not interested in those positions because the location did not suit him. 25 Mr Adams now says the real reason he declined the Department of Health position is because it was an informal offer, he had limited IT experience and he was confident that he would get a position with the Public Utilities Office. He told the Department that the position's location was unsuitable because he did not want to offend his former colleague who had offered him the opportunity. Mr Adams says that initially he was selective about the positions he expressed interest in. After a lack of success, he became less discerning. The parties agree Mr Adams became more flexible and considered positions in Osborne Park, Midland and Cannington. 26 From September 2014 to January 2017, the Department provided Mr Adams with ongoing support to find a new position including a case manager, training and external personal consultants to help with his applications and interview skills. 27 From 2014 to 2016, following the recommendations of various selection panels, the Department decided not to transfer Mr Adams to any of the following six positions: a. two vacancies as AD Regulatory Mapping and Reform – Economic Reform Unit, assessment report dated 21 June 2016; b. Project Leader – Public Utilities Office, assessment report dated 20 October 2015; c. AD Business Performance – Public Utilities Office, assessment report dated 24 March 2015; d. AD Red Tape Reduction – Economic Reform Division, assessment report dated 1 December 2014; and e. AD Regulatory Reform – Economic Reform Division, assessment report dated 1 December 2014. 28 Presumably Mr Adams was unsuccessful for many of the other positions he applied for but he does not complain about that and the parties have not put evidence before me about the circumstances of Mr Adams not being selected for those other positions. Mr Adams’ referral focusses on the Department’s selection processes for these six positions. 29 The Department wrote to Mr Adams on 12 January 2017 to let him know that he would become a registered employee on 31 January 2017. By operation of reg 30, Mr Adams’ employment would ordinarily terminate on 1 August 2017, after his six- month redeployment period. However, the Department agreed to suspend the continuance of Mr Adams’ redeployment period for the period from 31 July 2017 until the day the Commission provides final orders in this matter. Were the selection processes for the six positions fair? 30 The parties agree that 'a transfer candidate should be assessed at the standard of whether he/she can perform the duties and not whether he/she is the best or most suitable candidate for the vacant position'. 1564 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. 31 Further, the parties agree that in making its decision to register Mr Adams, the Department must comply with principles of merit and transparency. 32 They agree those principles are: Merit - in applying the merit principle a proper assessment must take into account:  the extent to which the person has the skills, knowledge and abilities relevant to the work related requirements and outcomes sought by the public sector body; and  if relevant, the way in which the person carried out any previous employment or occupational duties. Transparency - decisions are to be transparent and capable of review. 33 Different selection processes were used for the six positions. 34 For the two AD Regulatory Mapping and Reform positions, Mr Adams attended a meeting with Mr Dolling and Ms Gould. Mr Martin and Mr Fairs provided references for Mr Adams. 35 For the Project Leader position, Mr Adams was interviewed by Mr Martin and two other people. Three references were obtained for Mr Adams. 36 The parties describe the selection process for the AD Business Performance position as semi-formal. It involved an interview that was a semi-formal discussion, two scenarios and a 45-minute written exercise based on scenario one. Scenario two was a brain teaser. The Department requested a recent line manager to confirm Mr Adams’ suitability for the position. Mr Adams chose Mr Martin as his referee and Mr Martin provided a reference for Mr Adams. 37 For the AD Red Tape Reduction and AD Regulatory Reform positions, Mr Adams submitted his resume and a written statement addressing three questions set by the selection panel. He was then interviewed for those positions. Mr Martin and Mr McLaughlin provided references for Mr Adams. Overview of Mr Adams’ argument 38 Mr Adams argues that the Department did not fairly and properly apply reg 18 because it concluded that he could not be transferred in circumstances where its selection processes lacked merit and transparency. I understand his argument to be that he would have been assessed as suitable for the six positions if the selection panels had complied with the merit and transparency principles. 39 In summary, Mr Adams criticises the selection processes the Department used for assessing whether he could be transferred into the six positions because he says the selection panels: a. ignored components of selection criteria and therefore did not evaluate the extent to which he met the criteria; b. applied higher weighting to components of selection criteria when no priority was declared or approved; c. applied higher weighting to some selection criteria when no priority was declared or approved; d. used criteria that were not authorised or declared in the job description forms (JDF) to assess his suitability; and e. asked questions at interviews that did not enable a fair or proper assessment of his capabilities against the selection criteria. 40 Here I set out broadly Mr Adams’ arguments for why he says the Department was wrong to conclude he could not be transferred into the six positions. From [50] to [76], I address his specific complaints in more detail. 41 Mr Adams says that the selection criteria for each position are approved by an executive. The selection panel cannot use different criteria when assessing suitability for a position, otherwise the selection process could be arbitrary and capricious and would not allow independent review. 42 Mr Adams says that to comply with the transparency principle the selection panel must give equal weight to all components in a criterion and all criteria for a position, unless different weightings are declared. To conclude that he did not meet a criterion because he did not meet one component means the selection panel considered one component more important than another. Applying unequal weighting means the selection process is capricious and arbitrary and prevents independent review. The Department says it complied with the transparency principle because the selection panels’ assessments were clear and capable of being reviewed. The selection panels’ findings that Mr Adams did not meet certain components of criteria were openly and appropriately formed. If a component that Mr Adams could not demonstrate capability in is a relevant factor, the Department’s approach cannot be unfair. 43 Mr Adams says the merit principle requires the selection panels to assess the extent he meets the criteria, which is a lower threshold than meeting 100% of the criteria. The selection panel must: a. to determine if each criterion is met, balance Mr Adams’ capabilities in each component of the criterion; and b. to determine the extent of Mr Adams’ suitability, balance the criteria Mr Adams was ‘superior and satisfactory’ in with the criteria Mr Adams did not meet. 44 Mr Adams says only then can the selection panel determine if he could adequately perform the duties of the position. If he could not, the selection panel must consider if he could get to the required standard within a reasonable period with additional training. 45 Mr Adams says the selection panels’ conclusions that he did not demonstrate adequate capabilities is ‘stating [the selection panel] was unable to determine whether [Mr Adams] did have, or did not have, the required level of capabilities. This is a failure of the selection process’. However, Mr Adams agrees with the Department’s submission that if a selection panel concludes that a candidate cannot demonstrate required capabilities, it might be because that candidate did not possess the requisite skills or experience. The Department submits the selection panels concluded Mr Adams did not demonstrate adequate capabilities because Mr Adams lacked those capabilities. It was not a failure of the selection process. Mr Adams argues that the selection panels came to those conclusions because they did not ask appropriate questions or provide him with 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1565 enough time to explain his capability. He says the Department must conclusively, and without doubt, determine he does not have adequate capabilities before it can decide he cannot be transferred. He argues the Department should have done a second interview or invited him to provide additional material. 46 The Department submits that the assessment reports show Mr Adams could not fulfil the requirements of the positions within a reasonable period of time with reasonable training. A ‘fair reading’ of the assessment reports show that the selection panels appropriately assessed Mr Adams against the selection criteria and Mr Adams’ levels of capability. Mr Adams agrees that the assessment reports show he could not fulfil the requirements of the positions, but submits that the selection panels’ conclusions were not ‘accurate or robust’ because the selection processes were not fair and proper. Overview of the Department’s argument 47 The Department submits that its decision to register Mr Adams because he could not be transferred was merit-based and transparent and the assessment reports attached to Mr Adams’ notice of referral show that Mr Adams was properly considered for each position against the selection criteria. The selection panels concluded that Mr Adams did not have some of the required skills for the positions and that he did not demonstrate adequate capabilities because he lacked those capabilities. The Department argues that Mr Adams could not fulfil the requirements of the positions within a reasonable period of time, with reasonable training, considering the positions’ responsibilities and Mr Adams’ experience and competence. 48 I understand the Department’s submission to be that it supported Mr Adams and took reasonable steps to try to transfer him. Consideration 49 I have considered Mr Adams’ detailed complaints in relation to each of the six positions. Two AD Mapping and Reform positions 50 Mr Adams complains about the way the selection panel assessed him against selection criterion one. He says it has two components, namely ‘extensive experience in reviewing and assessing regulatory arrangements’ and ‘extensive experience in providing advice on regulatory design’. He says the selection panel only assessed him on the first component. Mr Adams agrees that a successful candidate must demonstrate suitability in both components or at least that he could fulfil both components with training. But I find the selection panel assessed Mr Adams against this criterion and found him lacking. 51 Mr Adams complains that the use of ‘and/or’ in selection criterion two is flexible, confusing and does not meet the transparency principle. Selection criterion two is 'Substantial experience and results in the delivery of regulatory reforms and/or process improvement across Government and/or business'. I think it means a candidate must demonstrate substantial experience and results in the delivery of regulatory reforms or process improvements, across government or business. If a candidate can demonstrate substantial experience and results in the delivery of regulatory reforms and process improvements, across government and business, so much the better. But even if I agreed with Mr Adams' argument, it does not follow that he could have been transferred to these positions. 52 Mr Adams complains that he was assessed against criteria that were not in the selection criteria, namely project management capabilities and the ability to deliver projects in tight timeframes. He says that breaches the transparency principle because those job-related requirements were not specified in the JDF’s selection criteria. 53 I am not persuaded that Mr Adams was assessed against criteria that were not in the selection criteria. The first dot point under ‘What you will deliver’ on the JDF is essentially delivering a project ‘in relatively short timeframes’. It is fair to assess a candidate on what he must deliver in the position. But even if he was assessed against criteria not in the selection criteria, here I do not think that would make the selection process unfair. I say that for the following reasons. The selection panel’s assessment report is a summary. It groups the feedback into three areas of enquiry. Mr Adams agrees he was told six days before the interview that the interview would focus on those three areas of enquiry. Project delivery is the second area of enquiry. It clearly relates to selection criterion two. All of the selection panel’s observations relate to Mr Adams’ suitability for the positions. To the extent that Mr Adams complains that the selection panel should have considered his experience rather than his skills, I am not persuaded that there was anything unfair about the selection panel’s approach. 54 Mr Adams complains about the selection panel’s conclusion that he 'presented as more of an engaged contributor than a project leader; leadership is critical in this role’. He criticises the lack of reasons provided for that conclusion and the lack of questions to evaluate his ability to lead, as opposed to manage teams. I find that criticism pedantic. He was asked about how he would manage teams, which clearly relates to leadership. One of the essential selection criteria refers to leading people and teams. 55 Further, while Mr Adams’ subordinate referee supported Mr Adams' claims and thought he would be fully capable in the positions, the other referee Mr Adams chose provided him with a reference that would not support his success. Mr Martin did not support Mr Adams’ claims against the criteria. His reference was not particularly positive. 56 Mr Adams complains that the last selection criterion was not assessed. On its face, it may not have been formally assessed in detail. The substance of the last criterion is partly dealt with in the selection panel’s comments under stakeholder engagement. The selection panel concluded that Mr Adams would be able to determine customer needs. But it is clear that Mr Adams was unsuccessful because he failed to meet the other selection criteria. 57 Mr Adams says that balancing the extent to which he met and exceeded some criteria with those he did not meet would have meant that he was suitable and could be transferred to these positions. I disagree. The selection panel concluded that Mr Adams did not meet some criteria. That Mr Adams exceeds other criteria does not make him suitable overall. To be suitable, he needs to meet all components of the criteria, or be able to do so within a reasonable timeframe with reasonable training. The selection panel considered that Mr Adams would need to be able to meet the criteria in around four months because of the high profile nature of the work. It found it would take longer than four months to train Mr Adams in regulatory mapping and training in other areas, such as regulatory design and fast paced delivery, would take longer than four months and had unclear prospects of success. 1566 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. 58 Overall, Mr Adams has not persuaded me that the selection panel’s conclusion was wrong or that the selection process it used was flawed or unfair. I find the Department could not transfer Mr Adams into these positions. Project Leader 59 Mr Adams complains that the selection panel did not evaluate the extent to which, on balance, he met selection criterion one and also that it placed greater weight on some components of the criterion. As I state at [57], I am not persuaded by this argument. 60 He complains that in concluding that he lacked written communication skills, the selection panel did not evaluate the extent of his verbal communication skills, placed greater weight on the former and focused on report writing, which was an undeclared component of criterion two. I find that the selection panel concluded Mr Adams did not meet the selection criterion because he did not demonstrate the required skills for one component of the selection criterion, that is, preparing high quality written advice. That does not mean the selection panel placed greater weight on the one component. It means Mr Adams needed to demonstrate both written and verbal communication skills. Written reports clearly come within selection criterion two because the JDF expressly refers to preparing written reports under ‘What you will deliver’. Mr Adams agrees that he has not prepared a written report since 2000. I find Mr Adams was not able to demonstrate he fulfilled this selection criterion. 61 Mr Adams complains that the assessment report does not list the questions he was asked and therefore the selection panel’s assessment for criterion three is not capable of being reviewed. I disagree. In my view, there is no requirement to list every question asked during an interview in order for the selection process to be transparent. 62 Mr Adams complains that the selection panel places higher weighting on some selection criteria because it states that he did not sufficiently fulfil criteria one, two and three, which reflect the position’s substantive requirements. He argues the selection panel should give equal weight to all criteria. I am not persuaded that there is anything unfair or improper about the selection panel’s process. I find the selection panel did not place higher weighting on some selection criteria. The selection panel found Mr Adams fulfilled selection criteria four and five. The selection panel concluded that, and provided reasons why, Mr Adams did not fulfil three of the selection criteria. Mr Adams has not challenged those conclusions. To be suitable for the position, Mr Adams needed to fulfil all the selection criteria or be able to do so within a reasonable period of time with reasonable training. He did not fulfil all the selection criteria and the selection panel concluded that he would not be able to do so with even with training. The selection panel was right to conclude that Mr Adams was not suitable for the position. I find the Department could not transfer Mr Adams into this position. AD Business Performance 63 Mr Adams complains that a higher weighting was placed on some of the selection criteria when the weighting was not declared. He says the selection panel placed higher weighting on selection criteria one, two and three and a proper and fair assessment of all the selection criteria would have concluded he was suitable for the position. Mr Adams says that scenario one was irrelevant, unfair and took too long to complete, depriving him of time during the interview to otherwise demonstrate his suitability. 64 I accept the Department’s submission that scenario one attempted to test Mr Adams’ thought process, logic and forecasting. Mr Adams concedes that he had not led teams doing financial analysis since 2005. I find that the selection panel correctly concluded that Mr Adams did not fulfil the first two selection criteria, which relate to the substantive requirements of the position. While his referee report is not able to be reviewed, the assessment report records that Mr Martin considered he was not qualified to comment on the first two selection criteria. Those selection criteria were fundamental to the position. A candidate should select a referee who will support his application. Unsurprisingly, Mr Martin's lack of support for Mr Adams' application contributed to the selection panel's conclusion that Mr Adams was not suitable for the position. 65 Mr Adams complains that he was not given a chance to explain his experience and expand on his resume. He says the scenarios tested his skills and not his experience. According to the assessment report, Mr Adams had a two-hour semi-formal discussion involving two scenarios, a written exercise and questions. I consider that to be fair. 66 Mr Adams complains that not all aspects of technical skills were tested. The assessment report shows that the selection criteria were assessed and Mr Adams was found lacking. 67 He complains that he was not given an effective opportunity to demonstrate his written skills, that he had insufficient time and that he used a different keyboard and mouse than he was used to. Mr Adams says the written exercise was unfair and unreasonable. It was not effective and his oral communication skills were not assessed. Mr Adams says the written exercise was unrealistic because ministerial advice would not be drafted in 45 minutes and, because written communication is not ‘his strongest card’, Mr Adams has always relied on his team members to proofread and help him improve. 68 I accept that the written exercise was an opportunity for Mr Adams to demonstrate what he could do in 45 minutes with what he was given. Mr Adams has not persuaded me that there was anything unfair or improper about the written exercise. I find it to be fair and reasonable. The assessment report makes it clear that the selection panel found Mr Adams lacked written communication skills. The selection panel did not apply a higher weighting to written communication. Rather, it concluded that Mr Adams did not fulfil the selection criterion because he did not fulfil the written component. 69 The selection panel considered whether with training Mr Adams could fulfil the requirements of the position. It found that there was no realistic mechanism to equip Mr Adams to fulfil the requirements of the position in a reasonable timeframe or in a way that would meet the needs of the Department. 70 Mr Adams has not persuaded me that the selection panel should have reached a different conclusion or that its selection process was unfair. I find the Department could not transfer Mr Adams into this position. AD Red Tape Reduction and AD Regulatory Reform 71 Mr Adams complains that the selection panel did not use his answers to additional questions in its assessment. He says the additional questions deprived him of time to expand on responses to formal questions. He complains that the selection panel did not ask appropriate questions to enable him to demonstrate that he met the selection criteria. I have considered the 97 W.A.I.G. WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 1567 examples Mr Adams gave of the selection panel's questions and I find that the selection panel did not ask inappropriate questions. Further, as Mr Adams conceded in cross-examination, the content of the questions was sensible and relevant and the selection panel used Mr Adams’ responses to some of the additional questions in concluding that he ‘engaged with the panel on some quite challenging economic issues. He appeared to be open to new ideas and the panel noted a good solutions focus in his answers’. 72 Mr Adams says that the selection panel did not give him a chance to explain his experience in managing people and teams and only asked one question about leadership, which was about developing capability in teams. Mr Adams agrees that he had the positions’ JDFs, was familiar with interviews and understood that he needed to sell himself to the selection panel in a limited time. He also had the five questions in advance and had 15 minutes to prepare. In effect, Mr Adams agrees that it would have been possible for him to talk about his experience managing teams in response to multiple questions. 73 Mr Adams' approach is at times pedantic. For example, Mr Adams focusses on the selection panel's observation that 'Mr Adams was pleasant at interview though lacked a bit of energy from the perspective of being proactive in the customer service space'. Mr Adams argues 'I did not provide any information on my energy levels or on my customer service capabilities because these questions were not asked. Furthermore, the selection criterion does not specify a requirement for an energetic person'. Mr Adams notes that for these positions his supervisors provided negative comments that would have provided the selection panel with considerable doubt about his ability to perform the duties and his suitability for the positions. But he still argues that a fair assessment and balancing the extent to which he met and exceeded some criteria with those he did not would conclude that he was suitable. I disagree. 74 For these positions, the referees Mr Adams chose did not provide references that would support a candidate being selected. Mr Martin said he could not comment on a range of the selection criteria, such as experience in economic and regulatory reforms. He provided some positive comments in relation to others, such as effectively engaging with stakeholders, and noted that Mr Adams had experienced some difficulty in managing conflicts within teams. Mr McLaughlin’s reference was broadly consistent with Mr Martin’s. He also said he could not comment on the first two selection criteria, which included experience in economic and regulatory reforms. Mr McLaughlin made negative comments about Mr Adams’ people management and written communication skills. 75 The selection panel was not convinced about Mr Adams' experience in economic and regulatory reforms. Mr Adams agrees that he originally did not apply for the positions because he did not have an economics background. The selection panel considered that Mr Adams would need additional training to meet the requirements of the positions and that such training would likely take well in excess of six months. It is implicit from the selection panel’s assessment report, and I find, that Mr Adams could not meet the requirements of the positions within a reasonable timeframe with reasonable training. 76 I find the selection panel's assessments were fair and they reached fair conclusions. I find the Department could not transfer Mr Adams into these positions. Overall 77 Based on the documents, submissions and oral evidence before me, I find Mr Adams had a reasonable opportunity during the selection process for each of the six positions to demonstrate his capabilities. I agree with the selection panels’ conclusions that he was not capable of being transferred into the six positions. The Department was entitled to rely on the selection panels’ conclusions. In doing so, I find the Department fairly, equitably, impartially, thoroughly and appropriately evaluated Mr Adams’ capabilities. 78 In this case, without Mr Adams challenging the selection panels’ conclusions about his abilities, it is difficult for me to find that he could have been transferred to one of the six positions. 79 It is obvious that the process the Department uses to consider whether an employee can be transferred should be fair. It should also be transparent and based on merit. 80 I cannot accept Mr Adams’ argument that the selection panels’ conclusions that he did not demonstrate adequate capabilities amounts to ‘stating it was unable to determine whether [he] did have, or did not have, the required level of capabilities and that is a failure of the selection process'. It is clear from the assessment reports that the selection panels determined that Mr Adams did not demonstrate the required capabilities. He either did not have the required capabilities or he had them but did not demonstrate them. Either way, if there was a failure, it was on the part of Mr Adams and not the selection processes. 81 Ordinarily, if during an interview a candidate does not demonstrate his capabilities, the Department is not required to offer a second interview or invite the candidate to provide additional information. The interview is his opportunity to demonstrate he can do the job. The reference check is another opportunity for the candidate to demonstrate he can do the job. 82 It is not unusual or unreasonable for a selection panel to ask additional questions. Mr Adams has not persuaded me that there was anything improper about the selection panels’ questions, or that his responses to those questions were inappropriately considered. 83 I am not persuaded by Mr Adams’ argument that the selection processes were not transparent because all components of a criterion should be given equal weighting unless otherwise declared. Decision-making should be transparent and identify significant issues which have impacted on the decision. While it might be desirable to declare any differential weighting, in my view it is not essential to quantify the weight given to particular considerations. 84 Further, I am not persuaded that to conclude Mr Adams did not meet a criterion because he did not meet one component means that the selection panel placed greater weight on one component. I find the selection panel concluded, correctly, that Mr Adams did not meet the criterion because he only met part of it. Assessing Mr Adams as only partially meeting the criterion is consistent with the merit principle. A selection panel is entitled to conclude that a candidate is unsuitable because he does not meet all of the selection criteria. 85 In these circumstances Mr Adams just did not meet the requirements of the positions because he did not fulfil the components of the selection criteria. 1568 WESTERN AUSTRALIAN INDUSTRIAL GAZETTE 97 W.A.I.G. 86 I do not consider that undeclared weighting means the selection panels’ conclusions are capricious, arbitrary and incapable of independent review. I find the selection panels’ assessments are clear and capable of review. They comply with the transparency principle. The conclusions that Mr Adams did not meet components or criteria were, as the Department says, openly and appropriately formed. The selection panels for the six positions were entitled to conclude that Mr Adams did not meet the requirements because he did not meet all the components of the criteria for the positions. 87 Mr Adams argues that if the selection panels concluded that he lacked sufficient capabilities, it should have then considered whether he could attain the required standard within a reasonable period and after training. For all of the positions the selection panels considered whether with training Mr Adams would be suitable. They concluded, and Mr Adams does not dispute, that he would not. 88 In circumstances where Mr Adams did not meet certain components of the criteria, and could not do so within a reasonable timeframe with reasonable training, the Department’s decision not to transfer him into the six positions is reasonable. 89 Mr Adams raises many complaints about the selection processes. I have carefully considered Mr Adams’ evidence and arguments. I find the assessment reports show that the selection processes complied with the merit and transparency principles. Mr Adams was assessed against the selection criteria. He was found to be lacking in some areas which led the selection panels to conclude that he could not fulfil the requirements of the positions. I cannot accept his argument that the Department’s selection processes for the six positions were flawed such that the Department could not reasonably conclude Mr Adams was unable to be transferred to those positions. 90 Though the parties’ cases focussed on the six positions, I have also considered more broadly whether the Department’s decision to register Mr Adams was reasonable. The Department did not call a witness to give evidence about how it reached its decision that Mr Adams could not be transferred. It may have assisted the Commission to have done so. Absent that evidence, I have considered the agreed facts and documents, Mr Adams’ evidence and the parties’ submissions. Mr Adams was given a case manager, support and training. From 2014 to 2017 the Department suggested he apply for over 90 positions, which Mr Adams agrees is a large number of potential opportunities. He turned down several opportunities. Mr Adams was fairly assessed for the six positions he complains about. 91 Although not the focus of Mr Adams’ evidence or the documents he submitted, I understand from his closing submission at the hearing that he contends the Department used the Regulations to get rid of him because he was an unwanted employee. I am not persuaded that is what happened. I find the Department supported Mr Adams and took reasonable steps to try to transfer Mr Adams. 92 In the circumstances of this case and on what is before me, I am satisfied that the Department had reasonable grounds to conclude, and I find, that Mr Adams could not be transferred. I find the Department fairly and properly applied reg 18 in relation to Mr Adams. 93 Mr Adams’ application is dismissed. 2017 WAIRC 00726 REFERRAL TO COMMISSION UNDER PUBLIC SECTOR MANAGEMENT ACT 1994