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Ivers v McCubbin

 

[2005] QCA 200

 

SUPREME COURT OF QUEENSLAND

  

CITATION:

Ivers v McCubbin & Ors [2005] QCA 200

PARTIES:

DAVID JOHN IVERS
(plaintiff/applicant)
v
KEITH McCUBBIN
(first defendant/first respondent)
STATE OF QUEENSLAND
(second defendant/second respondent)
JOHN BRITON
(third defendant/third respondent)
GLEN STEWART
(fourth defendant)
CARA McNICOL
(fifth defendant)
ELINOR RATCLIFFE
(sixth defendant)

FILE NO/S:

Appeal No 9438 of 2004

SC No 3238 of 2003

DIVISION:

Court of Appeal

PROCEEDING:

Application for Leave/Judicial Review

ORIGINATING COURT:

Supreme Court at Brisbane

DELIVERED ON:

10 June 2005

DELIVERED AT:

Brisbane

HEARING DATE:

11 March 2005

JUDGES:

McPherson and Jerrard JJA and White J

Separate reasons for judgment of each member of the Court, each concurring as to the orders made

ORDERS:

1.The applications for leave to appeal are allowed

2.The orders made 30 September 2004 in SC No 3238 of 2003 are set aside

3.The applicant is given leave to amend his application for a statutory order of review

4.The respondents pay any costs incurred by the applicant, to be agreed or taxed on the standard basis

CATCHWORDS:

ADMINISTRATIVE LAW – JUDICIAL REVIEW LEGISLATION – COMMONWEALTH, QUEENSLAND AND AUSTRALIAN CAPITAL TERRITORY – GROUNDS FOR REVIEW OF DECISION – OTHER GROUNDS – applicant was a Fire Ant Control Centre (‘FACC’) team leader – investigation of an incident involving the applicant’s team resulted in the initiation of disciplinary proceedings against him – a ‘show cause’ letter issued to applicant after an investigation report prepared – applicant sought statutory order of review of the decision to initiate investigation – trial judge dismissed application – whether investigation initiated via correct procedure – whether apprehended bias by FACC Director or author of investigation report – whether arguable grounds for a statutory order of review

Judicial Review Act 1991 (Qld), s 20, s 21, s 48, s 49

Public Service Act 1996 (Qld), s 34, s 88

Ainsworth v Criminal Justice Commission (1992) 175 CLR 564, cited

Ambrey v Oswin [2005] QCA 112; Appeal No 7368 of 2004, 15 April 2005, cited

COUNSEL:

The applicant appeared on his own behalf with G J Ivers assisting

M O Plunkett for the respondents

SOLICITORS:

The applicant appeared on his own behalf with G J Ivers assisting

C W Lohe, Crown Solicitor for the respondents

  1. McPHERSON JA:  I agree with the reasons of Jerrard JA and the comments of White J, as well with the orders for disposing of this application and appeal proposed by his Honour.
  1. I cannot part with this matter without remarking that a well-intentioned mechanism for ensuring the proper administration of units of the public service has in this case, and possibly in some others we have seen in this Court, engendered illfeeling and consequences going well beyond the relative triviality of the original incident that gave rise to it. From this, no one can have benefited. Not every work place dispute is best resolved by using the semi-judicial processes envisaged in the Departmental procedure.
  1. JERRARD JA:  These proceedings were applications for leave to appeal orders made on 30 September 2004 under s 48 and s 49 of the Judicial Review Act 1991 (Qld) (the JR Act).  The learned trial judge had made orders under s 48 pursuant to an application brought by the respondent and upheld by the learned judge, who held that no reasonable basis had been disclosed for an application made by David Ivers for a Statutory Order of Review under both s 20 and s 21 of the JR Act.  The learned judge accordingly dismissed the application pursuant to s 48(1)(b).  The judge also held that David Ivers had not established any basis for his having the benefit of a costs order under s 49 of the JR Act, and accordingly dismissed his application for an order under s 49(1)(a) and (d). 

Smoking on the stairs

  1. The trivial matter that ultimately resulted in litigation happened on 15 September 2003, when some people working in a team from the Fire Ant Control Centre (FACC), a unit within the Queensland Department of Primary Industries and Fisheries (the “Department”), spoke with a security guard at the Toombul Shopping Centre about whether or not members of that FACC team could sit and smoke cigarettes on a landing leading to the upper car park. The Fire Ant team personnel included a Mr Absalom, a Mr Supranowicz, and a Ms Kucks, the relieving team leader. Mr Ivers, who was not present at that conversation, was the acting co-ordinator in charge of all the FACC team leaders, although usually that team’s leader.
  1. A degree of hostility emerged in the views expressed by the shopping centre security officer and one or more of the FACC team members, as to the appropriateness of team members sitting and smoking as described, and both “sides” found some fault with the manner in which the views of the other were expressed. That same day Ms Kucks telephoned Mr Ivers and told him of the incident. Mr Absalom and Mr Supranowicz also saw Mr Ivers that day and spoke with him about it. Next day Mr Absalom gave Mr Ivers a handwritten draft of a complaint by Mr Absalom to the central management of that shopping centre, complaining of the security guard’s manners. Mr Ivers had that typed, but it was not sent. Instead on 17 September 2003 Mr Supranowicz also brought a handwritten draft to Mr Ivers, which Mr Ivers also had typed out, after doing some editing of it. The Supranowicz draft was more aggressively worded than Mr Absalom’s had been, and the Supranowicz draft which Mr Ivers had typed listed at the foot thereof the names of the FACC team members present at the incident; thus apparently making them all “complainants”. Ms Kucks' name appeared there, and she signed it that day. Although the letter was typed on blank paper it was sent to the shopping centre management in a Department envelope. Mr Ivers had not intended that, and he had been careful not to use paper with Department letterhead when having the otherwise private complaint by Mr Supranowicz typed.

Ms Kucks was asked what happened

  1. That use of the Department envelope led to the Shopping Centre Management responding to the Department (the “complainants” did not provide any private address for reply)[1], and the complaint to the shopping centre and the response came to the notice of Ms Cara McNicol, Mr Ivers’ manager and the person in charge of all the FACC surveillance teams.  Ms McNicol took two steps; she asked a Mr Glen Stewart to “get to the bottom” of the matter, and she also asked Ms Kucks for a written report as team leader.  On 24 September Ms Kucks made notes in preparation for her written response to Ms McNicol, and Mr Ivers read those on the morning of 25 September.  It is said by Ms Kucks against Mr Ivers that he suggested that her response to Ms McNicol should describe the incident at the shopping centre consistently with the complaint that had already been made to it.  Somewhere around that same time Mr Stewart also spoke with Ms Kucks, asking why she had signed the letter, and she replied to the effect that she had been badgered into doing that.

Complaints about Mr Ivers

  1. On 25 September Ms Kucks made more notes for her response, and on 30 September she spoke with Mr Stewart about its contents, and did so again on 1 October. This led to a meeting of Mr Stewart, Ms Kucks, and Ms McNicol on 7 October 2003, at which Mr Stewart made notes of a variety of complaints by Ms Kucks, principally about Mr Ivers. It is only fair to Mr Ivers to record that by that date – 7 October 2003 – Ms Kucks held the belief that Mr Ivers had “shafted” her in relation to her application for the position of assistant team leader.[2]  He had typed out an application for her – on a Sunday and apparently in his own time – in which she considered he had omitted to insert material in handwritten notes she gave him, and which may have ultimately assisted her if included.  In the result she did not succeed in obtaining an interview for the position, and she thought her missing out was caused by his deliberate or careless conduct.  That had happened in mid-September 2003. 
  1. Ms Kucks’ handwritten notes of 24 and 25 September described only the incident at the shopping centre, and why she signed the letter of complaint. Her enlarged complaints about Mr Ivers, recorded in the file notes of the meeting of 7 October, were considered by a person designated as the Human Resources Officer, a Ms Ratcliffe. Mr Ivers explained on the hearing of his applications for leave that he understood that officer made a recommendation that formal discipline processes be commenced against him. Mr Ivers’ understanding of how that process came to be commenced is quoted here, because the respondents did not file any material in their application under s 48, or in response to Mr Ivers’ application for a Statutory Order of Review and a costs order, describing how the formal procedure for investigating and disciplining a public servant[3] had been invoked.  The only information before this Court about Ms McNicol’s actions and authority, Mr Stewart’s instructions, steps, and authority, and Ms Ratcliffe’s position and recommendation come from Mr Ivers’ submissions and from what can be inferred or gleaned from a report dated 22 December 2003 about Ms Kucks’ complaints, written by a Mr John Briton.

An investigation began

  1. Mr Briton was appointed by the first respondent Mr Keith McCubbin, the Director of the FACC, to investigate Ms Kucks’ allegations and “determine whether those allegations are substantiated and whether or not Mr Ivers has breached the department’s Code of Conduct” (AR 43). Mr McCubbin gave Mr Briton those terms of reference for that investigation by letter dated 27 October 2003. On that same date Mr McCubbin wrote to Mr Ivers, referring to “a complaint lodged by Ms Charmaine Kucks dated 7 October 2003” (which presumably was the handwritten notes taken by Mr Stewart recording various complaints); and advising “The complaint makes allegations that you have breached the Department’s Code of Conduct in that you have:

On numerous occasions demonstrated inappropriate conduct in the workplace with racist or sexist remarks to team members, including Ms Kucks.  You have also failed to act in an appropriate, ethical way as Team Leader by failing to take action upon breaches of the Code of Conduct within your team. 

Behaved inappropriately by publicly embarrassing and humiliating Ms Kucks.  You have also bullied, coerced and misled Ms Kucks into signing a witness statement into particular events at Toombul.  You have also made known to other team members certain confidential and personal information relating to Ms Kucks.

On several occasions made remarks of a sexist nature to Ms Kucks and/or failed to address and/or contributed to other team members’ sexual innuendo and remarks to Ms Kucks.”

  1. That letter, which was the first Mr Ivers knew of any complaints or any disciplinary process, advised that Mr McCubbin had determined to conduct a full and thorough investigation into “these allegations which may render you liable for disciplinary action”, and that he had appointed Mr Briton to conduct an investigation into the facts. The letter advised that Mr Briton would interview Mr Ivers, and that Mr Ivers might have a union representative or friend attend in the role of observer of the process during such interview. Mr Ivers was also advised that he could submit written information in relation to the allegations within 14 days of receipt of McCubbin’s letter. He was directed not to approach or contact Ms Kucks in any way.
  1. The letter advised “At the conclusion of the investigation you will be notified in writing of the finding of the investigation and whether or not a disciplinary action is being considered. If disciplinary action is considered, you will be given an opportunity to show cause why disciplinary action should not be taken against you.” Mr McCubbin’s letter to Mr Ivers assumed that Mr Briton would make findings, to be notified to Mr Ivers, and upon which disciplinary action would be considered. That assumption reflected the instructions to Mr Briton, to “determine” whether Mr Ivers had breached the code of conduct. That instruction misunderstood Mr McCubbin’s and Mr Briton’s respective roles.

Mr Briton’s report

  1. Mr Briton, a private consultant, wrote a 72 page report for Mr McCubbin, dated 22 December 2003. That report records that it was Ms McNicol who brought Ms Kuck’s allegations to the attention of Mr McCubbin, and that after taking advice Mr McCubbin had informed Mr Ivers by letter dated 27 October that the former had decided to conduct a full and thorough investigation. The report expressed Mr Briton’s opinion, formed on the balance of probabilities, on the matters Mr McCubbin had told Mr Briton to investigate. Mr Briton also expressed opinions, described as “my findings”, on other matters which had arisen during his investigation. In summary his opinions, described as findings, were that:
  • Mr Ivers did not bully, coerce and mislead Ms Kucks into signing the letter to Toombul Shopping Centre Management dated 17 September 2003, but that by typing her name on it, he had conveyed an expectation she should sign it, which was “very poor judgment” and a reckless disregard both for the truth and Ms Kucks’ feelings;
  • he had threatened and attempted to bully Ms Kucks, by telephone on 24 September and in person on 25 September 2003, to get her to write a version of what had happened on 15 September that was consistent with the version set out in the letter to the shopping centre management;
  • there was no evidence capable of supporting a finding that Mr Ivers had racially harassed Ms Kucks;
  • Mr Ivers had shown a lack of judgment in expressing a personal view that it was unfair that indigenous members of the team got training opportunities that other members did not;
  • there was no evidence capable of supporting a finding that Mr Ivers had made remarks of a sexual nature to team members including Ms Kucks or had otherwise sexually harassed her;
  • Mr Ivers had failed to act in an appropriate ethical way as team leader by failing to take action upon breaches of the Code of Conduct within the team, and had condoned and thus (perhaps) encouraged a workplace culture within the team that was deeply offensive to many members of the team, including both men and women;
  • Mr Ivers had received, stored, shared with selected colleagues, and forwarded, large volumes of emails Mr Briton considered offensive; and in so doing had breached the Department’s policies and encouraged a culture within his team that condoned and accepted sexist behaviours;
  • there was no evidence capable of supporting a finding that Mr Ivers had behaved inappropriately by publicly embarrassing or humiliating Ms Kucks or that he had made known to other team members confidential information relating to her;
  • Mr Ivers had made a habit during 2002 and early 2003 of using his work vehicle for personal purposes, including collecting and leaving his son at school and his wife at the airport and from shops; and picking up and taking home items from roadside collections.

How it was used

  1. Mr Briton recommended that Mr Ivers be asked to show cause why he should not face disciplinary action. His report did not specify the matters upon which he recommended Mr Ivers be disciplined. The latter had commenced sick leave on 3 December 2003, and his sick leave and recreational leave entitlements were used up on 8 January 2004. He thereafter applied for WorkCover.[4]  On 25 February 2004 an investigation report prepared for WorkCover Queensland was delivered to a claim assessor there, which report examined Mr Ivers’ allegations that his medical condition of generalised anxiety disorder was caused or contributed to by the management of the FACC, particularly in relation to the handling of the allegations Ms Kucks had made against him.  The investigation report delivered to WorkCover Queensland referred in some detail to the content of Mr Briton’s report prepared for Mr McCubbin; Mr Ivers, on the other hand, was only provided with a copy of that report by a letter from Mr McCubbin dated 12 March 2004. 
  1. On 22 March 2004 WorkCover rejected Mr Ivers’ application for compensation, holding that his condition fell within the exclusion to the definition of “injury” contained in s 32(5) of the Workers’ Compensation and Rehabilitation Act 2003.  That definition includes as injury personal injury arising out of, or in the course of, employment if the employment is a significant contributing factor to the injury; but it excludes injury consisting of a psychiatric or psychological disorder arising out of, or in the course of, reasonable management action taken in a reasonable way by the employer in connection with the worker’s employment.  Mr Ivers was advised that it was considered that he suffered from an anxiety disorder, that his employment was a significant contributing factor to it, but that his condition arose out of, or in the course of, events which were “management action” which was reasonable and taken in a reasonable way, as some of the allegations against him had been confirmed.  WorkCover considered management had therefore acted reasonably in conducting an investigation into all of them.
  1. Mr McCubbin’s letter of 12 March 2004 to Mr Ivers, enclosing a copy of Mr Briton’s report, advised Mr Ivers that the latter’s investigation “has substantiated a number of the allegations against you.” Mr McCubbin “therefore” asked Mr Ivers to show cause why Mr McCubbin should not be reasonably satisfied that, during Mr Ivers’ employment as a Team Leader or co-ordinator at the FACC, he had in various ways breached the Department’s Code of Conduct Ethics Obligation 1 – Respect for the law and system of Government, Ethics obligations 2 - Respect for persons, Ethics obligation 4 – Diligence, and Ethics obligation 5 – Economy & efficiency.[5]  The somewhat intimidating allegations, derived from Mr Briton’s report, were that he breached that code by:
  1. Demonstrating inappropriate conduct as an employee and as a supervisor in relation to the complaint lodged with the Centre Management of Toombul Shopping Centre, in that he embellished the facts of the matter and in doing so may have misled a member of the public, and behaved in a way that could have impacted adversely on the department. 
  1. Using inappropriate and intimidating behaviour in the workplace and as a supervisor, in attempting to bully or coerce an employee under his supervision.
  1. Action and/or inaction condoning the inappropriate and offensive behaviour of staff under his supervision, thereby failing in his responsibility as a supervisor to manage and/or report that behaviour.
  1. Action and/or inaction, by condoning the offensive behaviour of staff under his supervision, contributing to the harassment and embarrassment experienced by others in the workplace. 
  1. Misusing Departmental equipment in receiving, storing, sharing and forwarding inappropriate emails and images.
  1. Misusing a Departmental vehicle in undertaking unauthorised travel during working hours and/or inappropriate use of a departmental vehicle.
  1. Further particulars of each allegation were provided by reference to the matters investigated by Mr Briton. Regarding the first allegation, those revolved around the proposition that Mr Ivers had involved himself in the complaint lodged by the other staff, and had acted to embellish the facts and perhaps thereby misled the Shopping Centre Management, thereby showing very poor judgment and disregard for Mr Ivers’ responsibility. The particulars of the second were that he had by inappropriate, coercive and bullying behaviour placed Ms Kucks under duress to write a version of the Toombul complaint incident consistent with the version in the letter typed by himself, thereby harassing an employee under his supervision and failing to maintain proper standards of work place behaviour. The further particulars of allegations (iii) and (iv) were described as based upon the “findings” of Mr Briton at “pages 29 to 43 of his report”. Those pages in the report recorded his investigation into the original complaint that he had failed to act in an appropriate, ethical way as team leader by failing to take action upon a variety of alleged breaches of the Code of Conduct by members of his team, and the further complaint that he failed to address and/or contributed to other team members’ sexual innuendo and remarks to Ms Kucks. Those seemed substantially to be complaints about the way that other team members (male and female) spoke about and to their opposite sex, and that Mr Ivers did too little to control that, or to discourage swearing. Mr Briton considered Mr Ivers had made episodic attempts to get the offenders to “tone it down”, but had effectively condoned their behaviour by failing to be more proactive. The further particulars of (v) and (vi) were derived from Mr Briton’s report.

The order of review

  1. Mr Ivers responded to the show cause request by his initial application for a statutory order of review, filed 13 April 2004 and seeking to review Mr McCubbin’s decision to commission Mr Briton to investigate and report, seeking orders that Mr Briton’s report be “quashed”, and that Mr McCubbin take no further action or decisions based on the report or its finding. On 25 June 2004 he resigned his position, five days before his contract would have terminated in any event, and he subsequently amended his application. His amended application contended that Mr McCubbin’s decision to commission a report by Mr Briton was a decision amenable to review, and was unlawful; and that Mr Briton’s report was biased, that its making was a reviewable decision by reason of s 6 of the JR Act, and was unlawful. 
  1. Mr Ivers argued to the learned trial judge and this Court that the more senior public service employees who had dealt with Ms Kucks’ complaints, and particularly Mr McCubbin, had been obliged by directions binding all of them as public service employees to attempt first to resolve her complaints by negotiation or mediation; and if that was unsuccessful or considered inappropriate, only at that stage to take the step of carrying out an investigation. He complained that the learned trial judge should have held that those binding directions mandated at least attempting to follow the procedures for the local resolution or mediation of grievances between public service employees, before beginning any lawful process of investigation with a view to disciplining him.

Inutility of the Proceedings

  1. The respondents submitted to the learned judge that since Mr Ivers had resigned, there was no power to proceed further with any disciplinary action against him, and his proceedings were accordingly futile. Mr Ivers responded that Mr Briton’s report had an adverse effect on his reputation and his potential re-employment prospects in the Public Service, and it had been taken into account adversely to him in the decision to refuse him WorkCover. The learned trial judge referred to observations of Thomas J in Pitman v State of Queensland[6] to the effect that there may be cases where a genuine benefit may be seen in setting aside a wrong decision even where its effect has ended, or in eliminating an unfair matter of public record, and to statements by High Court judges in Ainsworth v Criminal Justice Commission.[7]  The joint judgment in Ainsworth remarked that it has long been accepted that reputation was also an interest attracting the protection of the rules of natural justice, and Brennan J also wrote in that case[8] that it is especially appropriate that judicial review should be available when the function conferred by statute is to inquire into and report on a matter involving reputation, even though the report has no effect on legal rights or liability.  This is because no remedy may otherwise be available to vindicate the damaged reputation. 
  1. While the trial judge considered the matter finely balanced, the judge was not prepared to dismiss Mr Ivers’ application summarily on the ground that it had been rendered futile by his own resignation, citing Chief Constable of the North Wales Police v Evans[9] for the proposition that judicial review can be available even where an applicant has resigned.  The court held there that the appropriate remedy in such a case was a declaration that the action complained of had been taken in breach of the decision maker’s duty to observe the rules of natural justice.  That ruling by the learned judge has not been put in contention in the respondents’ argument on these applications.
  1. Mr Ivers relied on the contents of a document “Directive No 4/03 – Grievance Resolutions”, issued by the Public Service Commissioner on 4 July 2003 and published in the Queensland Government Gazette of that date No 60.  It was issued under s 34 of the Public Service Act and, by s 34(3), binding on public service employees, unless inconsistent with the Act, another Act, or subordinate legislation under either Act (s 34(5)).  That guideline authorises a public service employee to lodge a grievance in writing with the Chief Executive of the employee’s department, or the Chief Executive’s delegate.  Mr Ivers’ amended application for a statutory order of review alleges that Mr McCubbin was relevantly a delegate; Mr McCubbin’s undated affidavit, sworn in the respondents’ application for dismissal of the review proceeding, neither confirms nor denies that proposition. 

Directive 04/03

  1. It relevantly provides that an employee may lodge a grievance under it if the employee has an honest belief based on reasonable grounds either that the conduct of another employee which adversely affects the complainant is unfair or unreasonable, or that the other employee’s behaviour (whether by action or inaction) constitutes sexual or workplace harassment. However, a grievance may not be lodged unless the complaining employee has made reasonable endeavours to resolve the matter locally, or unless the Chief Executive determines that local resolution is not reasonable or appropriate. When lodged, the grievance must specify the grounds on which the employee believes herself or himself to have been adversely affected, the action which would resolve the grievance, and the attempts that the employee has made to resolve the grievance locally. Upon receipt the Chief Executive is required to institute mediation, unless he or she determines that mediation is not an appropriate remedy. If so the Chief Executive is promptly to instigate appropriate action to resolve the grievance, which may include engaging the services of an independent investigator to investigate it and prepare a report. A copy of the Chief Executive’s findings, decisions, and reasons must be given to the parties at the end of the investigation. Directive 04/03 does not describe any penalties or disciplinary orders which the Chief Executive may impose; s 88 of the Public Service Act 1996 authorises a Chief Executive to take action considered reasonable in the circumstances as disciplinary action, including termination of an officer’s employment, reduction of classification level, transfer, reducing level of remuneration, or reprimanding an officer.
  1. Mr Ivers contends that Mr McCubbin was obliged to treat Ms Kucks’ complaints about him, made to Ms McNicol and Mr Stewart, as conduct by which she lodged a grievance against him. Accordingly, Mr McCubbin should have required her to make reasonable endeavours to resolve the matter locally, or else should have determined that local resolution was not reasonable or appropriate. Thereafter he ought to have either taken action to initiate or institute mediation, or ought to have determined that that too was not appropriate, and only then should he have instigated action by investigation. Mr Ivers argued that Mr McCubbin had acted incorrectly by immediately taking action in purported accordance with the general provisions of another document, Corporate Standard HR.4.002, dealing with discipline, and that Mr McCubbin ought to have acted first in accordance with Directive 04/03 or another document, Corporate Standard HR.8.003 – Workplace Harassment. The latter document described action, both formal and informal, that could be taken by a manager or supervisor when an employee complained about harassment, including both workplace and sexual. Informal action included approaching the alleged harasser, and if that was unsuccessful, using the grievance process. Formal action included determining that an investigation was warranted and appointing an investigating officer. A copy of the report would be provided to the alleged harasser, who would have the opportunity to respond, and disciplinary action might be an outcome of the investigation, depending upon the determination made based upon the official investigation report.
  1. In Mr McCubbin’s affidavit, he was economical in his description of the process he followed. He confirmed that he had sent the letter of 12 March 2004 requiring Mr Ivers to show cause why disciplinary action should not be taken, and that Mr Briton’s report was prepared at his request. He contended that Directive 04/03 was irrelevant to Mr Ivers’ position, as no grievance had been lodged by any employee of the FACC against or in relation to Mr Ivers. He advised that Corporate Standards HR.4.002 (Discipline) and HR.8.003 (Workplace Harassment) were internal policy documents generated by the Department. He did not reveal whether he had intended to act in accordance with the provisions of either of those, or what formal or binding effect he thought they had. The information before the Court on these applications does not show whether those documents are relevant directions of the Public Service Commissioner[10] (or delegate) and thus binding on the Chief Executive or delegate, or whether they also, or alternatively, constitute Codes of Conduct binding public officials, by virtue of s 18 of the Public Sector Ethics Act 1994.  Describing them as internal policy documents does not exclude their being binding directives issued under a delegated power.  It does appear like they are each the same variety of document as the one described in Ambrey v Oswin [2005] QCA 112 at [34] as binding all public service employees in the Department who were employed pursuant to the Public Service Act 1996. 

Corporate Standard HR.4.002 (Discipline)

  1. Judging from the terms used in his correspondence, Mr McCubbin had probably endeavoured to apply the instructions contained in the document entitled Corporate Standard HR.4.002 (Discipline). In its terms, the procedures described in it should be followed when it is “necessary” to address serious performance problems and allegations of unacceptable conduct or behaviour; and it was also declared therein that it was “appropriate” to follow its specified procedures where an employee’s conduct was unacceptable because the employee had been guilty of misconduct, or had contravened without reasonable excuse a provision of a Code of Conduct.
  1. Those procedures in that corporate standard required that the proper officer first decide whether to initiate the discipline process; second, if initiated notify the employee at risk (when appropriate); and third, (stage 3) nominate an investigating officer, independent of the persons involved in the matters under investigation. The investigating officer is “responsible for collecting information/evidence”, and is to send a report with recommendations to the delegate, regarding whether the discipline process should proceed further; that investigating officer must assess whether there is sufficient evidence to sustain disciplinary action. That officer is not required to make findings, or come to those on a balance of probabilities or any other standard of satisfaction. Mr Briton did both those things, and to that extent arguably exceeded the role which those specified procedures had required of him. He did that because of the terms of his retainer; he was not asked – as HR.4.002 required – simply to collect information and send a report with recommendations as to whether the discipline process should succeed. Instead, he expressed a number of very strong opinions. The next stage, stage 4: “show cause”, provides that the employee under investigation must be given the opportunity to show cause why disciplinary action should not be taken; and in stage 5 the delegate must consider the information and evidence provided, the recommendations of the investigating officer or manager, and the response of the employee to the show cause letter, and then determine whether or not the allegations are substantiated on the balance of probabilities. If it is determined that the allegations are substantiated, the delegate will make a preliminary decision on the appropriate penalty to be imposed.[11]
  1. Mr Ivers is probably accurate in the contention that Mr McCubbin purportedly applied the procedures in HR.4.002 (Discipline). Mr Ivers submitted, and was not contradicted, that Mr McCubbin had received a recommendation from Ms Ratcliffe that the discipline process be initiated, and on the one date Mr McCubbin both notified Mr Ivers of the appointment of an investigator, and appointed Mr Briton. But Mr McCubbin’s letters of 27 October 2003, appointing Mr Briton and advising Mr Ivers of Mr Briton’s appointment, had each wrongly assumed that Mr Briton’s role was to make findings, and that Mr McCubbin would treat Mr Briton’s opinions as findings. The disciplinary process in HR.4.002 actually required that the determination whether or not allegations had been substantiated be made in stage 5, and only after any response to the show cause notice. Mr McCubbin both confirmed and corrected, in his letter to Mr Ivers of 12 March 2004, the assumption that Mr Briton would make findings adopted by Mr McCubbin. The repetition of the error was the statement that “The investigation has substantiated a number of the allegations against you”; the correction occurred when he immediately thereafter asked Mr Ivers to show cause why Mr McCubbin should not be reasonably satisfied that he had in various ways breached the Department’s Code of Conduct as particularised. Despite the correction, Mr Ivers has a reasonable basis for arguing that bias could be apprehended in Mr McCubbin from the way he expressed himself in those two letters; he had arguably quite clearly delegated to another the task given to him, of deciding if the allegations were substantiated, and had accepted that other’s views as binding. That conduct could be held both to result in pre-judgment, and to fail to follow mandated procedures.[12]
  1. Oddly enough a complaint of apprehended bias in the procedure applied by Mr McCubbin is the one complaint that Mr Ivers has not made. His brother, a qualified accountant whom the Court permitted to speak for Mr Ivers, submitted[13] about the procedure specified in HR.4.002 that “But that part of the process was okay, that’s what – they did do that. … So the process we don’t argue with, we argue with the process of making the decision to do it and the actual report itself and failing to make the decisions to follow 04/03 and [HR]8.003.”  Mr Ivers’ brother erred in making that concession, because the material Mr Ivers filed in support of his application raises at least an arguable case for a finding of the apprehended pre-judgment described in Ambrey v Oswin.[14]  While Mr Ivers’ amended application complained that Mr Briton was biased, he did not allege that Mr McCubbin failed to apply HR.4.002 as required, or that Mr Ivers had proper grounds on which to apprehend pre-judgment by Mr McCubbin.  He would need leave to amend his application for review to add those grounds, which leave I would grant. 

Bias by Mr Briton

  1. Mr Ivers did continue his complaint about bias by Mr Briton in his written submissions to the learned trial judge in paragraph 123 thereof, and the grounds of his application for leave to appeal the s 48 order also complain about bias by Mr Briton. The respondents’ counsel informed this Court that Mr Ivers actually said very little about Mr Briton being biased to the learned trial judge, who found that there was no evidence at all to support any assertion of bias in Mr Briton. Mr Ivers sought to challenge that finding in lengthy written submissions, and by the oral submission that because the s 48 order had been made before discovery by the parties he had simply not developed the argument supporting the claimed bias, because he was waiting for discovery. For that reason only he had not pressed the matter to the learned trial judge, although he now did.
  1. I have read Mr Briton’s report in full and respectfully agree with the conclusion of the learned trial judge. The report covers a wide range of topics; a large number of people were interviewed and the accounts of each were considered and compared, in Mr Briton’s investigation of the largely un-particularised and rather diffuse complaints by Ms Kucks. Mr Ivers has grounds to argue that some or all of the opinions expressed adversely to him were not reasonably open, or were expressed more emphatically than was justified, but I consider that Mr Briton’s report does not show evidence in it of bias against Mr Ivers. It was judgmental in tone, and could also be argued to be rather self-righteous, naive and unworldly, but that does not demonstrate pre-judgment or any other bias. The fact that an unfair or unjustified or over-emphatic conclusion or conclusions may have been drawn can suggest that possible bias needs to be borne in mind; but when the report is considered in its entirety it shows that Mr Briton laboured hard to reach conclusions he could justify on the information unearthed. He expressed opinions favourable to Mr Ivers on a significant number of matters, and he justified those in considerable detail.

How did it all begin?

  1. The very limited affidavit material from the respondents does not reveal how the discipline process began, assuming that it was that process in which Mr McCubbin had involved Mr Briton and Mr Ivers. It does not reveal if any thought was given to any other less potentially punitive process, such as treating Ms Kucks as having lodged a grievance, or treating her complaints as ones of workplace or sexual harassment of her, and attempting to deal with those under HR.8.003 or Directive 04/03. The learned trial judge had found that Mr McCubbin was correct in the view that Ms Kucks had not lodged a grievance, and that there was no obligation on her to lodge one. The learned judge accordingly held that Directive 04/03 was irrelevant.
  1. Ms Kucks is not shown to have signed any written complaint about the matters investigated, but even if she had, and had thereby lodged a grievance, that does not invalidate a decision to begin immediately a process of disciplinary action following receipt of a complaint. The Chief Executive’s delegate cannot be prevented from conducting an appropriate investigation into allegations of misconduct either because no grievance has been lodged, or because one has been. The objective of Directive 04/03 (expressed in its clause 5.2), namely to ensure that wherever possible grievances are resolved locally and informally, cannot be allowed to frustrate either the investigation of misconduct or disciplining the officers who are committing it. One of the main objects declared in the Public Service Act 1996 is that of maintaining integrity and appropriate standards of conduct for public service employees[15], and s 25 of that Act declares that a public service employee’s work performance and personal conduct must be directed towards, amongst other things, ensuring that the employee’s personal conduct does not adversely impact on the reputation of the public service, and towards carrying out that employee’s duties impartially and with integrity.[16]  An obvious enough method of maintaining integrity and appropriate standards of conduct for public service employees is by identifying and disciplining those committing misconduct and otherwise acting without integrity.  Corporate standard HR.4.002 provides appropriately enough for disciplinary processes, including investigation, where there are allegations of unacceptable conduct or behaviour. 
  1. The learned trial judge held that Mr Ivers had no valid grounds for complaint about the fact that the disciplinary processes under HR.4.002 had commenced without the attempted local resolution or mediation generally required by Directive 4/03, or without following HR.8.003. It so happens that I respectfully disagree with the learned trial judge that Ms Kucks had not lodged a grievance; I note that Mr McCubbin’s letter of 27 October 2003 describes Ms Kucks as having lodged a complaint dated 7 October 2003, apparently referring to the notes taken in her presence of what she said that day. If it was proper to treat them as lodging a complaint, then it was equally apt to treat it as lodging a grievance. However, I agree with the learned trial judge that if Ms Kucks did lodge a grievance, that did not necessarily prevent the discipline process beginning without any determination first being made that local resolution was not reasonable and that neither it nor mediation was appropriate. The learned judge wrote that “If there is more than one possible procedure which is authorised, choosing one over the other cannot, without more, render the procedure chosen unlawful.” I agree. It is a matter for judgment whether a complaint can be dealt with as a grievance by one public employee to be negotiated with another employee, or whether if proved the matters complained of constitute misconduct and unreasonable contravention of a department’s code of conduct, justifying – if not necessitating – immediate application of the process of investigation with a view to taking disciplinary action. Where the preliminary inquiries made justify a conclusion that disciplinary action would certainly be warranted if the allegations were true, then investigating the complaint further is not rendered unlawful by a failure to make first a formal determination that mediation or local resolution is inappropriate. That determination would necessarily be implied when a responsible decision was made to appoint an independent investigating officer to report upon allegations of clearly unacceptable conduct potentially constituting misconduct.
  1. If Ms Kucks was clearly alleging misconduct by Mr Ivers towards a number of other employees, and clearly alleging misconduct by other employees as well as by Mr Ivers, then her complaints, while diffuse and unparticularised, went beyond a complaint of workplace and sexual harassment of one individual which could appropriately be dealt with as a grievance by her. Those complaints would allege conduct involving a number of team members, both as victims of conduct of Mr Ivers, and as employees breaching the Code of Conduct and about which breaches Mr Ivers had failed to take appropriate action. The terms of the complaint Mr Briton was instructed to investigate[17] describe unparticularised but appalling behaviour by Mr Ivers, not limited to Ms Kucks, and necessitating disciplinary action, if true.
  1. The respondents have not put in evidence the information given to Mr McCubbin before he commissioned Mr Briton to investigate. He may have received clearer information about the identity and behaviour of the other team members allegedly breaching the Code of Conduct, which information may have amply justified the decision to investigate rather than attempt negotiation or mediation. He apparently received advice from elsewhere, perhaps on the contents of the notes taken on 7 October 2003. The appeal record does not include a copy of those notes. Mr Briton’s investigation certainly identified some team members who repeatedly made sexualised comments which other team members may have found tedious and inappropriate, and if Mr McCubbin had those details they may have shown that disciplining Mr Ivers, as the team leader who had allegedly ignored their conduct, was likely to be appropriate and that mediation was not.

Conclusions

  1. However, without evidence from the respondents as to how and why one process was undertaken rather than another, it is difficult to decide with confidence that the judgment to do that was based on relevant and appropriate grounds. I consider Mr Ivers had a reasonable basis for the contention that it was not, and for his application for review, as he has open to him the argument that on the limited evidence available the extremely broad nature of the complaints Mr Briton was charged to investigate would have suggested that the allegations of offensive behaviour by Mr Ivers towards others, and his not acting to stop the like behaviour by others in the team, were no more than further details of a complaint about Mr Ivers’ behaviour as it affected Ms Kucks; and that complaint might have been amenable to mediation.
  1. I would allow Mr Ivers’ applications and appeals, and order that he be given leave to amend his application to add grounds asserting an apprehension of bias or pre-judgment by Mr McCubbin, and a failure to follow procedures required by law. Litigation of his complaint about the manner in which the investigation process was commenced may reveal that the learned trial judge was entirely correct in holding that he has no valid grounds for complaint on that point, but that should be determined after a hearing. I would allow his application to appeal against the dismissal of his application for a costs order under s 49 of the JR Act, since the sole ground for that order was that Mr Ivers had no reasonable basis for his s 48 application.  As I have come to the conclusion that he did on one of the matters he argued, namely a reasonable basis for his claim that the investigation procedure began prematurely and without sufficient grounds, that order under s 49 should be set aside.  Mr Ivers also has a reasonable basis for contending apprehended bias and a failure to follow mandated procedures, should he wish to do so.  Setting aside that s 49 order does not mean that after a hearing Mr Ivers will necessarily succeed on his application for a costs order; I observe that during oral argument it appeared that despite his contention that wider public interests would be assisted by his litigation, his object was to protect and advance his private interests, including a possible claim for damages against the State of Queensland.
  1. Mr Ivers’ success in these applications says nothing on the issue the learned judge did not decide and on which the respondents made no argument to this Court, namely whether there was a reviewable decision made under an enactment; nor whether there is utility in the proceedings. Those matters are still open to the respondents to argue.
  1. I would order that:
  • the applications for leave to appeal be allowed;
  • the orders made 30 September 2004 in S 3238/03 be set aside;
  • the applicant David John Ivers is given leave to amend his application for a statutory order of review;
  • the respondents pay any costs incurred by Mr Ivers, to be agreed or taxed on the standard basis.
  1. WHITE J:  I have had the opportunity to read the reasons for judgment of Jerrard JA and agree with his Honour for those reasons that the appeal should be allowed and the other consequential orders made. 
  1. Since this appeal raises a preliminary point it is not appropriate to do more than mention the troubling “snowballing” effect of a heated exchange between members of a team of Fire Ant Control Centre employees and a security guard in a shopping centre at which Mr Ivers, the team leader, was not even present which has led eventually to this appeal. Without seeking to diminish the importance of proper conduct in the workplace the unfolding of events and the investigation set out in Jerrard JA’s judgment suggest that this matter could have been better managed.
  1. I, too, like Jerrard JA have read Mr Briton’s report in all its considerable length. I do not disagree with his Honour’s description of it generally but my impression was that Mr Briton was regretful that the evidence did not permit him to make adverse findings against Mr Ivers in every ground of complaint. This is a matter which the appellant may wish to consider further.

Footnotes

[1] The typed draft is at AR 133-4

[2] See AR 87-90 and 104

[3] Mr Ivers was employed, apparently pursuant to s 112 of the Public Service Act 1996, as a team leader of the FACC for the period 27 August 2001-30 June 2004 (AR 129).  The respondents did not challenge his contention that he was accordingly a “public service employee” by reason of s 9 of the Public Service Act

[4] These dates are taken from the judgment of the learned trial judge at [12], AR 469

[5] Those obligations, so described, are the ethics principles and obligations declared in Parts 2 and 3 of the Public Sector Ethics Act 1994, and applying to all public officials

[6] [1999] 2 Qd R 71 at 74 -75

[7] (1992) 175 CLR 564 at 578

[8] At CLR 585

[9] [1982] 1 WLR 1155; [1982] 3 All ER 141

[10] Section 90(1) of the Public Service Act 1996

[11] A copy of HR.4.002 is at AR 182-187

[12] Grounds for review include that procedures required by law to be observed were not; (s 20(2)(b) of the JR Act)

[13] At transcript 63

[14] Particularly at [2], [6], and [39]-[42] (the latter paragraphs being in the judgment of White J)

[15] Section 3(f)

[16] Sections 25(h) and (e)

[17] Set out in paragraph [9] herein

Close

Editorial Notes

  • Published Case Name:

    Ivers v McCubbin & Ors

  • Shortened Case Name:

    Ivers v McCubbin

  • MNC:

    [2005] QCA 200

  • Court:

    QCA

  • Judge(s):

    McPherson JA, Jerrard JA, White J

  • Date:

    10 Jun 2005

  • White Star Case:

    Yes

Litigation History

No Litigation History

Appeal Status

No Status