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  4. Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) - [2015] QIRC 138

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Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)[2015] QIRC 138

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)[2015] QIRC 138

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138

PARTIES:

Susan Lloyd

(Appellant)

v

State of Queensland (Department of Communities, Child Safety and Disability Services)

(Respondent)

CASE NO:

TD/2013/54

PROCEEDING:

Application for reinstatement

DELIVERED ON:

30 July 2015

HEARING DATES:

13-15 January 2014 (hearing)

24 March 2014 (Appellant's submissions)

13 May 2014 (Respondent's submissions)

2 June 2014 (Appellant's submissions in response)

MEMBER:

Industrial Commissioner Knight

ORDERS :

The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISAL - HARSH, UNJUST OR UNREASONABLE - Where allegations were made against the applicant with respect to the inappropriate conduct towards a client and breach of the Code of Conduct, Departmental Guidelines and Legislation -  Child Safety Concerns - Where the matter was referred to the Ethical Standards Unit for investigation - Where the investigation found there was sufficient evidence to substantiate six allegations - Where the Respondent terminated the applicant's employment on the basis of the findings against her - Where the applicant applied for re-instatement  - Matters referred to in s 77 of the Industrial Relations Act 1999 considered.

CASES:

Child Protection Act 1999 ss 5, 5A, 5B(a), 9, 14(1)(a), 122, 164(2)(c), 171, 172

Industrial Relations Act 1999 ss 73, 74, 77, 79

Public Service Act 2008 s 187

Child Safety Practice Manual

Commonwealth Bank of Australia v Barker [2013] FCAFC (6 August 2013).

Queensland Public Service Code of Conduct

APPEARANCES:

Mr T. O'Gorman (Robertson O'Gorman Solicitors) for the Appellant.

Ms C. Laird (Livingstones) for the Respondent.

Decision

Introduction

  1. [1]
    This decision concerns an Application for reinstatement filed by Ms Susan Lloyd ("the Appellant") whose employment was terminated by the Department of Communities, Child Safety ("the Respondent"/ "the Department") on 31 May 2013 following that agency's investigation of a series of incidents which occurred at the Maryborough Child Safety Service Centre in the months of September and October 2012.
  1. [2]
    The Department contends that from 10 September 2012 until she took leave in mid-October 2012, Ms Lloyd single-mindedly engaged in a course of conduct where she sought to achieve her objective of removing the subject child ("V") from the care of his mother and return him to Departmental Care.  Further, that despite advice from two managers, a direction from one manager, as well as concerns raised by other departmental employees, Ms Lloyd could not be persuaded from this path.  The Department submitted Ms Lloyd had no valid reason for the position she took.  Further, that in pursuing this course of action Ms Lloyd placed the subject child and two other children at an unacceptable risk and also failed to ensure that the safety and welfare of V was a key factor in her decision making.   At the time of her dismissal Ms Lloyd was a Team Leader with the Department.
  1. [3]
    Specifically, the Department alleges there are a number of substantiated allegations against Ms Lloyd that led to her dismissal.  These allegations directly relate to Ms Lloyd's alleged inappropriate response provided to V in circumstances where:
  1. he made disclosures of abuse and harm perpetrated against him by his foster carers;
  2. she failed to action and record the subject child's disclosures of harm by his foster carers;
  3. she demonstrated inappropriate physical behaviours towards the subject child and his mother;
  4. she engaged in inappropriate verbal communications towards the subject child's mother; and
  5. she directed two subordinate team members to apply for warrants of apprehension of a child in a manner which was not in accordance with accepted policy procedure and legislation; and a failure in her duty of care to two other children who remained in the foster carers' home after the allegations of abuse were raised by the subject child. 

Relevant Legislation and Authorities

  1. [4]
    Section 73 of the Industrial Relations Act 1999 ("the Act") relevantly provides as follows:

"73When is a dismissal unfair

(1)A dismissal is unfair if it is -

(a)harsh, unjust or unreasonable; or

(b)for an invalid reason."

  1. [5]
    Section 77 of the Act provides as follows:

"77Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

(a)whether the employee was notified of the reason for dismissal; and

(b)whether the dismissal related to -

(i)the operational requirements of the employer's undertaking, establishment or service; or

(ii)the employee's conduct, capacity or performance; and

(c)if the dismissal relates to the employee's conduct, capacity or performance -

(i)whether the employee had been warned about the conduct, capacity or performance; or

(ii)whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and

(d)any other matters the commission considers relevant."

  1. [6]
    Section 79(1) of the Act provides as follows:

"79Remedies - compensation

  1. (1)
    If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission."
  1. [7]
    Section 187 of the Public Service Act 2008 sets out the grounds for discipline for a member of the Queensland Public Service:

"187Grounds for discipline

  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has-
  1. (a)
    performed the employee's duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person;

  …

(4) In this section- misconduct means-

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service."
  1. [8]
    Code of Conduct for the Queensland Public Service,[1] effective as at 1 January 2011, sets out the Principals of the standards of conduct expected from Queensland Public Servants:

"1.5Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  2. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  3. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  4. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  5. comply with legislative and/or policy obligations to report employee criminal charges and convictions."
  1. [9]
    Further the Child Protection Act 1999 establishes the primary principle to be applied in actions taken under this Act:

"5Application of principles

  1. (1)
    This Act is to be administered under the principles stated in this division.
  1. (2)
    All other principles stated in this Act are subject to the principle stated in section 5A.

5AParamount principle

The main principle for administering this Act is that the safety, wellbeing and best interests of a child are paramount.

Example-

If the chief executive is making a decision under this Act about a child where there is a conflict between the child's safety, wellbeing and best interests, and the interests of an adult caring for the child, the conflict must be resolved in favour of the child's safety, wellbeing and best interests.

 …

9What is harm

  1. (1)
    Harm, to a child, is any detrimental effect of a significant nature on the child's physical, psychological or emotional wellbeing.
  1. (2)
    It is immaterial how the harm is caused.
  1. (3)
    Harm can be caused by-
  1. (a)
    physical, psychological or emotional abuse or neglect; or
  2. (b)
    sexual abuse or exploitation.
  1. (4)
    Harm can be caused by-
  1. (a)
    a single act, omission or circumstance; or
  1. (b)
    a series or combination of acts, omissions or circumstances."
  1. [10]
    Chapter 4, Part 1 of the Child Protection Act 1999 further sets out the standards of care to be maintained for children subject to the Act:

"122 Statement of standards

  1. (1)
    The chief executive must take reasonable steps to ensure a child placed in care under section 82(1) is cared for in a way that meets the following standards (the statement of standards)-
  1. (a)
    the child's dignity and rights will be respected at all times;"

Issues for Determination

  1. [11]
    In accordance with s 73(1) (a) of the Act, a dismissal is unfair if it is harsh, unjust or unreasonable.  In this matter, in determining whether Ms Lloyd's dismissal was unfair, I have given consideration to a number of factors, including:
  1. (a)
    Whether Ms Lloyd has contravened, without reasonable excuse section 187(1)(b) of the Public Service Act 2008 and Principles 1.5 and 3.1 of the Code of Conduct 2011in that it is alleged she:
  1. Failed to provide an appropriate response to a subject child and/or adequately action and record his disclosed allegations of abuse by his foster carers on 10 September 2012;
  2. In failing to provide an appropriate response or action and record the allegations made on 10 September, failed in her duty of care to two other children who remained in the foster carers' home after the initial allegations were made;
  3. Acted inappropriately by blocking an interview room doorway with arms outstretched, demanding the subject child not leave as he and his mother attempted to leave the interview room at the Maryborough Child Safety Service Centre;
  4. Acted inappropriately by yelling and screaming at the subject child's mother after she left the interview room at the Maryborough Child Safety Service Centre;
  5. Breached legislation, policies and procedures by directing Child Safety Officer ("CSO") Ms Knight, a subordinate in her team, to make an application for a "warrant to apprehend a child" on 19 September 2012;
  6. Breached legislation, policies and procedures by directing CSO, Ms Lardner in her team to make an application for a "warrant to apprehend a child" on 3 October 2012;
  1. (b)
    Whether the alleged contraventions at (a) I – VI created an unacceptable risk to the health, safety and welfare of a number of the Department's clients including three children; 
  1. (c)
    Whether Ms Lloyd was provided with an opportunity to respond to the allegations set out at (a);
  1. [12]
    Whilst it would not have been practical or effective to refer to all the evidence and submissions in this decision, which extended into thousands of pages, I have, nonetheless considered all the material before me in arriving at my decision.

 Witnesses 

  1. [13]
    The Appellant, Ms Susan Lloyd, provided evidence to the Commission in support of her application.  At the time of her dismissal, Ms Lloyd had worked with the Department for 12 years.  During this period Ms Lloyd was a team leader for approximately 7 years, initially at Thursday Island and then later at Maryborough.  Ms Lloyd held a Bachelor of Social Work from the University of Queensland and was aged 59 at the time of the hearing.  Ms Lloyd supervised a team of four CSO's and one Child Safety Support Officer.
  1. [14]
    Ms Maree Stratton was called by the Appellant to give evidence.  Ms Stratton was employed as a CSO at Maryborough at the time of the events which resulted in Ms Lloyd's dismissal. 
  1. [15]
    Mr Michael Shearer, Regional Executive Director, Central Queensland of the Department of Communities, Child Safety and Disability Services was called to give evidence by the Respondent.  Mr Shearer made the decision to dismiss Ms Lloyd following an investigation into a series of complaints arising out of the incidents of September and October 2012.
  1. [16]
    Ms Diana McDonnell, the Acting Manager of the Maryborough Child Safety Service Centre was Ms Lloyd's direct manager at the time the subject child initially reported the allegations against the foster carers.  Ms McDonnell was called to give evidence by the Respondent.
  1. [17]
    Ms Helen Knight was called to give evidence by the Department.  She was employed by the Department as a CSO and was a member of Ms Lloyd's team at the Maryborough Child Safety Service Centre.  Ms Knight was the nominated case manager for the subject child and was also present at the time the initial allegations of abuse were raised by V and his mother.  She subsequently took a period of pre-approved leave in mid-September 2012.  Ms Lloyd was her team leader at the relevant time.
  2. [18]
    Ms Jennifer Lardner was employed by the Department as a CSO.  She had previously worked in the "Intervention with Parental Agreement" division and swapped roles with a CSO from the Orders area, where she worked under the direct supervision of Ms Lloyd for a short period of time.  She was not the nominated case worker for V, but was aware of the matter and was involved in the preparation of the second application at the direction of Ms Lloyd, for a "warrant to apprehend a child" which is also the subject of one of the allegations against Ms Lloyd.
  1. [19]
    "Ms D", the mother of the subject child who made the allegations against the foster carers made a formal complaint in respect of Ms Lloyd's conduct and was later called to give evidence by the Department during the hearing.
  1. [20]
    Ms Danielle Campbell, Acting Manager - Central Queensland Regional Intake Service at the time of the hearing, was acting in Ms McDonnell's role from 14 September 2012 to 2 October 2012.
  1. [21]
    Also tendered were statements signed by Ms Patricia Bingham, Ms Milne and Ms Ida Pearson in support of Ms Lloyd application, none of whom were required for cross-examination by the Department.

 Allegations

Did Ms Lloyd provide an appropriate response to the subject child and/or adequately action and record his disclosed allegations of abuse by his foster carers on 10 September 2012?

  1. [22]
    On the weekend of 8September 2012 the subject child spoke to his mother, Ms D, advising her of some inappropriate conduct that was occurring within his current foster care home.  He also provided a letter to his mother, dated 27 August 2012, in which he detailed some of his concerns.  Issues raised by V included the male foster carer, within the home, placing his thumb on his throat some eight months prior and also holding him in a painful submission position, as well as the female foster carer telling him he was nothing but a "f**k up".
  1. [23]
    It is not in contention that Ms D contacted the relevant authorities including the police and the Department's after hours number alerting them to concerns about the allegations raised by her son.  She advised she preferred he remain in her care and not return to the foster care until she could raise the matter with her son's nominated CSO, Ms Knight on the following Monday.
  1. [24]
    Ms McDonnell's (Acting Manager) evidence is that she relayed the events of the weekend in so far as they related to the subject child's situation in an early morning meeting to Ms Lloyd and Ms Knight prior to a further meeting taking place between Ms Knight, Ms Lloyd, V and his mother, Ms D on the morning of 10 September 2012.  Ms McDonnell maintains both Ms Lloyd and Ms Knight were requested to assess the concerns being raised by V and suggested it may be necessary to find him another foster care placement while this occurred.
  1. [25]
    Ms McDonnell's evidence is that at the same time she alerted both Ms Lloyd and Ms Knight to a previous Matter of Concern ("MOC") which had been raised in relation to the same carers.  In this context, Ms McDonnell's evidence is that she considered the disclosures being raised by the subject child to be quite serious, particularly given the previous MOC and that she directed both Ms Lloyd and Ms Knight to hold an MOC discussion in respect of the allegations being raised. 
  1. [26]
    According to Ms McDonnell, Ms Lloyd told her she did not believe the subject child and that it was his mother, Ms D, who was behind the complaints.  At the time, Ms McDonnell suggested to Ms Lloyd that they had no way of knowing if that was the case.  Ms Knight's evidence was that she did recall meeting with Ms McDonnell who had told them about some concerns raised by V, but no action was subsequently taken on 10 September 2012 to investigate the concerns raised by the subject child because Ms Lloyd did not believe the allegations.
  1. [27]
    In contrast, Ms Lloyd's position is that she cannot recall physically meeting with Ms McDonnell and Ms Knight at the Maryborough Child Safety Office on the morning of 10 September 2012.  Instead, Ms Lloyd maintains there was only one meeting between the three ladies in the afternoon of 10 September 2012 and that she had first heard about the matter after speaking to Ms Knight and also receiving an after-hours facsimile on the Monday morning in respect of the events that occurred over the weekend in relation to the subject child.
  1. [28]
    Ms Lloyd confirmed she checked the Departmental records data base (ICMS) that morning and noted that a previous MOC had been lodged in respect of the subject child's carers relating to some inappropriate language and physical contact.  Ms Lloyd's evidence was that she was aware the carers had been found to have engaged in inappropriate behavior in the past and an action had been put in place to resolve those issues. 
  1. [29]
    Although she was aware of the prior MOC, Ms Lloyd's evidence is that she did not have a chance to properly read the letter the subject child had prepared and provided to Ms Knight prior to entering the room to discuss concerns that had been raised.  Ms Knight's evidence is that when Ms D and her son attended the Child Safety Office, she met with them on her own initially but decided after reading the letter prepared by the subject child that it would be appropriate to include Ms Lloyd in the meeting.
  1. [30]
    There is no contest that in that meeting, the subject child attempted to provide Ms Lloyd and Ms Knight with both verbal and written disclosures alleging the male foster carer located at his current foster home had attempted to choke him with his thumb and that he had also been placed in a painful submission hold.  V also disclosed he had allegedly been called a "f**k head" and a "loser" by the female carer.  Both Ms Lloyd and Ms Knight became aware during the course of the meeting that the alleged choking had taken place some eight months earlier.
  1. [31]
    One of the Department's main areas of concern in relation to this particular allegation (Allegation I) and Ms Lloyd's conduct thereafter, is that rather than commencing and undertaking an investigation into the subject child's concerns from a place where she accepted his disclosures at face value in the first instance and then proceeded to investigate, Ms Lloyd instead chose to manage her engagement with Ms D and the subject child in a manner which indicated she did not believe the disclosures being made by the subject child.
  1. [32]
    For example, Ms D alleged during the course of the meeting Ms Lloyd indicated the subject child would be required to return to the home of the foster carers' home notwithstanding her son's disclosures about physical and emotional harm.  Likewise, both Ms McDonnell, Ms Knight and a number of other witnesses during the proceedings indicated in their evidence to the Commission that Ms Lloyd's behavior and comments through the period 10 September 2012 until 15 October 2012 indicated she was disbelieving of the claims being made by the subject child.
  1. [33]
    In a case note prepared by Ms Knight on 12 September 2012 at 8.51am, Ms Knight recorded:

"Ms Lloyd attended the meeting and V made his disclosures of abuse to her to which Ms Lloyd responded by asking him why he had waited eight months to "tell us".  V advised Ms Lloyd that this was because he did not think he would be believed and that the Department would believe the foster carers.

Ms Lloyd stated that since he has remained there for 8 months since the incident, would he go back there until we sourced a new placement.  Ms D said 'how can you even suggest that' and grabbed V and left."

  1. [34]
    It's also not contested that Ms Lloyd herself, acknowledged during the Departmental investigation into the incident that on reflection the comments she made to Ms D and the subject child during the meeting were not overly helpful.
  1. [35]
    A second area of concern for the Department in respect of this particular allegation (Allegation I) is that Ms Lloyd failed to investigate the subject child's disclosures in accordance with her obligations under s 14(1)(a) and s 122(1) of the Child Protection Act 1999, because she determined the claims did not meet the threshold for a MOC investigation to be undertaken, as set out in Chapter 9 of the Department's Child Safety Protection Manual ("CSPM").
  1. [36]
    Mr Michael Shearer, Regional Executive Director for Central Queensland explained to the Commission that the acronym MOC was language used within the Department when complaints or issues related to carers and resulted in an assessment and investigation of those concerns.
  1. [37]
    Mr Shearer told the Commission the CSPM guidelines required Ms Lloyd to physically enact an MOC within 48 hours, after which it would be progressively followed up from that point.  Mr Shearer's evidence was that to "enact an MOC" means to create an electronic file which indicates a relevant Departmental office has made a decision that a particular matter concerning a carer requires further assessment and investigation.  Mr Shearer's view was this was a different concept from actually carrying out the investigation and instead the enactment by virtue of creating an electronic file was the commencement of the investigation.
  1. [38]
    Ms Lloyd's evidence is that subsequent to the meeting with the subject child and his mother on 10 September 2012, she made attempts to meet with Ms Schultz, a Senior Practitioner, to hold discussions in respect of a possible MOC.  At the very least, she said her view was the matter warranted consideration as a child placement concern.  Ms Lloyd was not able to say whether the meeting was held with Ms Schultz within the 48 hour time period set out in the Departmental guidelines, but pointed out that it wasn't a legislative requirement.
  1. [39]
    Ms Lloyd's position was that at some point Ms Schultz advised her a MOC case discussion needed to occur once she had obtained further information in relation to the disclosures made by the subject child.  Whilst Ms Lloyd was prepared to concede an actual decision about the "level" of concern should have been made and recorded in the system within two working days of being provided with the disclosures from V and his mother, and that an MOC had not been enacted in a technical sense.  Her understanding of the situation following discussions with Ms Schultz differed to Mr Shearer's in that she formed a view more information was required before making a decision as to whether the disclosures raised by V warranted an MOC case discussion or an MOC case response.
  1. [40]
    The Department's position is Ms Lloyd's inaction at this time constituted a breach of Chapter 9 of the CSPM given a MOC case discussion was not held within 48 hours of the disclosures, leading to a situation where a decision was not made by Ms Lloyd within two working days about the level of concern and the MOC not being recorded in the Departmental system
  1. [41]
    Some four weeks later, on 9 October 2012, an MOC discussion meeting was held in respect of the subject child's allegations which was attended by Ms Lloyd, Ms Lucarini, Ms Cherry and Ms Schultz.  In a "case recording discussion form" prepared by a Ms Lucarini and dated 9 October 2012, reference was made to the following:
  1. (a)
    V had given his mother a letter alleging "…his male carer had put his thumb on his throat and applied pressure."  This happened eight months ago;
  2. (b)
    V also alleged that the female carer had told him he was "nothing but a f**k up";
  3. (c)
    Due to these concerns the mother had refused to return the subject child to his placement;
  4. (d)
    Mr Robertson claimed Ms D was "unwell" with bi-polar disorder;
  5. (e)
    The subject child has "highly aggressive behaviour".  There was a suspicion that V may have been involved in some sexual acting out;
  6. (f)
    A previous MOC was substantiated against V's carers;
  7. (g)
    V's letter outlining his disclosures could not be located; and
  8. (h)
    A casework response was decided as appropriate given there did not appear to be significant harm suffered by V and without more information the department could not ascertain his reasons for leaving the placement.

Did Ms Lloyd act inappropriately by blocking an interview room doorway with arms outstretched, demanding the subject child remain at the Maryborough CSSC as he and his mother attempted to leave the interview room.

  1. [42]
    Within a short period of time of Ms Lloyd entering the meeting room where Ms Knight was meeting with Ms D and V in respect of his disclosures about the foster carers' at his current placement, Ms D can be observed getting up out of her chair and attempting to move towards the door to exit the room.
  1. [43]
    Ms D said when Ms Lloyd indicated in the meeting that V was to return to his carers, she spoke up and said something along the lines of "how can you even say that?"  It was at that point Ms D told Ms Lloyd and Ms Knight she was leaving.  Ms D recalled her son was quite upset and was crying. 
  1. [44]
    In the CCTV footage provided to the Commission during the proceedings, Ms Lloyd can also be seen standing up and moving towards the door of the room at or around the same time she raises her left hand in front of Ms D. 
  1. [45]
    Ms Lloyd's evidence is that she was simply attempting to slow the meeting down by holding up her hand and was not being deliberately obstructive.  She said it was difficult to obtain many details directly from V in respect of what had occurred because Ms D kept interrupting the meeting.  Whilst her evidence in relation to exactly how insistent Ms Lloyd had been during the meeting about V returning to the home of the foster carers was somewhat inconsistent, when considering it in the context of her original interview with the Department, Ms D told the Commission she had formed a view based on the comments made by Ms Lloyd during the meeting, that she was indicating V should return to the original placement notwithstanding his complaints.
  1. [46]
    Ms D's evidence is that she believed Ms Lloyd deliberately blocked the door when she attempted to exit the room with her son.  She said she formed this opinion because Ms Lloyd had purposely moved to stand in front of the door and at the same time was telling V that he could not leave.  Ms Knight's recall of the incident, whilst somewhat vague at times, was that Ms Lloyd's behavior was inappropriate in that she had tried to stop Ms D and V from leaving the room and that she was attempting to intimidate Ms D.
  1. [47]
    In the CCTV footage, Ms Lloyd can be observed moving towards and opening the door, after which she holds open with her left hand and continues to stand in front of the door.  Whilst it is the case that there is enough space available for Ms D and V to eventually walk past Ms Lloyd and exit the room, it is also clear they are forced to duck around Ms Lloyd and no attempt is made by her to move to one side to provide them sufficient space to walk through comfortably.

Did Ms Lloyd behave inappropriately by yelling and screaming at the subject child's mother after she left the interview room at the Maryborough CSS?

  1. [48]
    There is no dispute that after Ms D and her son, V, exited the meeting room, Ms Lloyd followed them out into the foyer area of the Child Safety Centre.  It is not in contention that both ladies were agitated and Ms Lloyd requested the receptionist call the police, however there is some disagreement about the manner in which these instructions were relayed to the receptionist and also how Ms Lloyd engaged with Ms D in the short period she and her son remained in the reception area.
  1. [49]
    At the time of her interview with the Department in respect of this particular allegation, Ms Lloyd conceded her voice was agitated, elevated and projected.  Whilst Ms Lloyd's position was that she was not yelling and screaming, she later acknowledged in a discussion with her Manager that perhaps her behavior at the time wasn't as good as it could have been and also indicated she had been transitioning off some "Prednisone" she had been taking around this period.
  1. [50]
    In her response to the Show Cause notice issued to her by the Department, Ms Lloyd noted;

"I accept that the tone of my voice may have caused anxiety and distress to the child and his mother and that the volume of my voice may have been considerably louder than I realized and I view this as indicative of my heightened state of agitation on that day.  I do not recall yelling or screaming at the child's mother… It appears that I did not treat the child's mother with the courtesy and respect that I would normally have provided in my daily interactions with members of the public.  I accept I did not demonstrate a high standard of workplace behavior and personal conduct in regard to this matter."

  1. [51]
    Ms D claimed Ms Lloyd threatened her in a loud, angry voice with words to the effect of "you're going down for this…you're going down for this mate, you're not going to get away with it mate..", however this claim was not supported by the witnesses to the event including Ms Knight.
  1. [52]
    Whilst Ms Knight was of the opinion that Ms Lloyd was yelling at Ms D and her verbal communication at the time was inappropriate, the Ethical Standards Report provided to the Commission during the hearing confirms Ms Knight remained in the interview room during Ms Lloyd's interaction with Ms D in the foyer area and did not observe any further interaction between Ms Lloyd or Ms D after the initial request to call the police.  
  1. [53]
    The Applicant has submitted there is no factual basis for a "finding" that Ms Lloyd yelled or screamed, and further Ms D felt "awful, intimidated and scared", as a result of Ms Lloyd's conduct in the foyer.
  1. [54]
    The Department contends Ms Lloyd's behavior at this juncture was a breach of principal 1.5 of the Code of Conduct 2011, whereby it outlines a public service employee "will treat…clients….with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views from our own."

Did Ms Lloyd breach legislation, policies and procedures by directing Child Safety Officer (CSO), Ms Knight in her team to make an application for a warrant to apprehend a child on 19 September 2012?

  1. [55]
    In the aftermath of the meeting between Ms Knight, Ms Lloyd, Ms D and V, a meeting was held in the afternoon of the same day between Ms McDonnell, Ms Knight and Ms Lloyd to discuss how best to proceed given V's disclosures and that he no longer felt comfortable remaining in the same home with his foster carers'.
  1. [56]
    The Department submits that during this meeting Ms McDonnell made a decision the subject child was quite safe with his mother and could remain living with her.  A decision was made to case manage and monitor the situation and in the event the arrangement between V and his mother broke down, it would be dealt with at that time. In the meantime attempts would be made to source a new placement.  A case note prepared by Ms Knight, dated 12 September 2012 included:

"It has been decided that there is no immediate risk to V staying with his mother, therefore we will not remove him from her care at this time.  A new placement will be sourced from (Placement Services Unit) so that there is new placement available if (Ms D) is unable to cope…"

  1. [57]
    As a result of the decision made in that meeting Ms Knight sent Ms D a text message on 10 September 2012 advising V was able to remain in her care.
  1. [58]
    The Department alleges that despite a decision being made by Ms McDonnell, the Manager, in the presence of Ms Lloyd and Ms Knight, to allow the subject child to stay in the care of his mother, Ms Lloyd made a contrary decision the following week while Ms McDonnell was on leave that an "Application for a Warrant" would be needed to bring V back into departmental care.
  1. [59]
    Ms Lloyd's own evidence is that in the week prior to preparing the application for a warrant she had taken steps to contact Court Services to inquire as to what legislative provisions apply. She said she was aware that an application for a warrant could not be made in circumstances where a child chooses to return home. She was advised that an application to apprehend a child could be made where a parent had chosen not to return a child. Ms Lloyd's view was that the determination of whether a child had chosen to "self-place" or whether a child was being withheld by a parent had "complexities".
  1. [60]
    In Ms Knight's record of interview with the department she said Ms McDonnell went on leave the following week and it was around this time Ms Lloyd informed Ms Knight that they needed to obtain a warrant for V.  Ms Knight recalled she challenged Ms Lloyd's request for the warrant by reminding her of their agreement in the meeting of the previous week with Ms McDonnell whereby V was to stay with his mother but said that Ms Lloyd was "convinced" and "adamant" the Department needed to apply for a warrant to bring V back into departmental care.
  1. [61]
    In contrast Ms Lloyd's position during the initial investigation into the matter was that the agreement to allow the subject child to remain in his mother's care was not an ongoing arrangement.  Two days later, on 12 September 2012 Ms Lloyd directed Ms Knight to send a text message to Ms D advising her to return V to Departmental care by 17 September 2012.
  1. [62]
    In her record of interview Ms Knight advised no incidents were reported in relation to Ms D and her son between the time he was in Ms D's care and the time Ms Lloyd determined a warrant was necessary.
  1. [63]
    The Department contends there were also insufficient grounds to direct Ms D to return her son to departmental care and apply for the Warrant given the child's history of disclosure and his decision to "self-place" with his mother.
  1. [64]
    Whilst the date is unclear, at some point Ms Lloyd took steps to inquire through "court services" to identify what the appropriate steps were for obtaining a warrant to return a child to the care of the Department.  Ms Lloyd was advised in the first instance to prepare and send correspondence to Ms D confirming the enactment of s 164(2)(c) of the Child Protection Act 1999 in circumstances where the subject child was not returned.
  1. [65]
    Ms Lloyd took steps to prepare and sign a letter on 17 September 2012.  In that letter Ms D was provided with a "period allowed for removal" until 9.00am, 19 September 2012.  As there was not time for the letter to be sent by registered post, it's not entirely clear as to whether Ms D actually received the letter in time, nor is there any record within the Department mail records that the letter was ever sent.
  1. [66]
    Nevertheless, 9.00am on the morning of 19 September 2012 passed and Ms D had not returned V to the care of the Department.  Ms Lloyd subsequently directed Ms Knight to make an application for a "Warrant for Apprehension of a Child", stating the subject child needed to be returned to departmental care on 19 September 2012.  Magistrate Smith granted a warrant on the same day based on the information provided in the application.
  1. [67]
    Section 171 of the Child Protection Act 1999 and Chapter 10.10 of the Child Safety Practice Manual[2] outline the legislative and procedural framework for an Application for a Warrant for Apprehension of a Child, specifically:

 The Child Protection Act 1999, Section 171 states:

(1)An authorised officer or police officer may apply to a Magistrate for a Warrant for Apprehension of a Child if –

  1. The child has been unlawfully removed from a person's custody or guardianship under this Act;

  …

(2)The officer must prepare a written Application that states the grounds on which it is made.

(3)The written Application must be sworn."

  1. [68]
    The CPSM Chapter 10.10 Part 1.1 states:

"A Warrant cannot be obtained if the child has moved of their own volition, for example, a young person absconds from an out-of-home care placement and returns to the parent's home."

  1. [69]
    The Department contends that at the time, the subject child had been living with the carers for two years until he made disclosures he had been abused by them and did not want to return.  In this respect, it argues the subject child had chosen not to remain at the placement home.  Further, that Ms Lloyd was fully aware V had chosen not to return to the carers' home due to allegations of abuse, yet chose to "apprehend a child" pursuant to s 171 of the Child Protection Act 1999.

Did Ms Lloyd breach legislation, policies and procedures by directing CSO, Ms Lardner in her team to make an application for a warrant to apprehend a child on 3 October 2012

  1. [70]
    On 3 October 2012, the initial warrant applied for and granted by Magistrate Smith expired.  Whilst the subject child had been sighted, but not approached since the first warrant had been approved, it is not in dispute that there was some question as to where V was residing.
  1. [71]
    The relationship between Ms D and Ms Lloyd had broken down and Ms D was refusing to engage with the relevant Departmental representatives in respect of her son's whereabouts.  Ms Knight had commenced a period of leave and Ms Lloyd had assumed her work load.
  1. [72]
    On or around 3 October 2012, the Department alleges Ms Lloyd approached Ms Ackerly, Court Coordinator, and advised her she believed the subject child had been taken out of the state and listed him as a missing person.  According to the Ethical Standards Report prepared in response to the initial allegations against Ms Lloyd, Ms Ackerly indicated Ms Lloyd had suggested she did not believe the disclosures made on 10 September 2012 and that the subject child's mother had influenced him.
  1. [73]
    Significantly, at this point, an MOC discussion meeting in respect of the disclosures had still not taken place and minimal steps had been taken by Ms Lloyd or any other member of her team in Ms Knight's absence to undertake an investigation into the claims made by V in respect of his treatment within his foster home.
  1. [74]
    It is not contested that in Ms Knight's absence, Ms Lardner was allocated tasks in relation to the subject child.  Ms Lardner was advised by Ms Lloyd that V's mother, Ms D, had refused to return him to the care of the Department and that a search had been conducted because he was unable to be located.
  1. [75]
    In an interview with the Ethical Standards Unit, Ms Larder said that Ms Lloyd "…wrote out the application, put my name on it, explained the basics that (V's) mother refused to return him (to the department).  They had since searched for him, he was not living at his mothers, they did not locate him at his mothers, he had not been sighted for at least five days and there were concerns for his safety…"  Ms Lardner also told the investigators that at the time of making the application for the warrant Ms Lloyd did not tell her of the reason why V did not return to his placement subsequent to the contact visit with Ms D in that he had made disclosures against his current carers.
  1. [76]
    Ms Lloyd's view was that she did not think she was in breach of the legislation or the CSPM in terms of the application for either warrant.  In her interview with Ethical Standards she indicated Ms Lardner would not have had sufficient time to get across all the details of the V matter, however in her evidence to the Commission Ms Lloyd said she considered she had provided Ms Larder with a "good understanding" of the what had transpired including the note that V had provided.  Interestingly, the note was not able to be located on or around 9 October when an MOC discussion was held between Ms Lloyd and a number of her team members.
  1. [77]
    Again, the Department contends there were insufficient grounds for Ms Lloyd to direct Ms Lardner to apply for the warrant given the child's history of disclosure and self-placing with his mother, and that he had also been sighted playing in the vicinity of his mother's unit on 19 September 2012.
  1. [78]
    The Department further submits Ms Lloyd in her team leader role again did not ensure all the appropriate and relevant information was included in the Application for Magistrate Smith to consider, in particular, that V had self-placed.
  1. [79]
    Ms Lloyd's position was that she took out the warrants, including the 3 October 2012 warrant to use them as leverage to return the subject child back to the Department's care.  Further, that Ms D was refusing to allow Department representatives or the police to have access to V or to sight him in circumstances where she, Ms Lloyd, was becoming increasingly alarmed about his well-being.
  1. [80]
    Other than concerns raised by Ms Ackerley, Ms Lloyd's evidence was that her colleagues including her managers, Ms McDonnell and Ms Campbell had not expressed any concerns about her pursuit of the two warrants at the time the applications were being made.  Further, had they raised concerns or issued a direction in respect of not pursuing the warrants she would most certainly have stopped.
  1. [81]
    In contrast, Ms Campbell and Ms McDonnell told the Commission they had both raised concerns with Ms Lloyd in respect of the heavy handed and/or inappropriate use of the warrants in circumstances where other measures or strategies could have been utilized to make contact with V and his mother.  In her interview for the initial Ethical Standards investigation into the allegations, Ms McDonnell said that she had raised her concerns directly with Ms Lloyd when she returned from annual leave on 3 December.  Ms McDonnell's evidence to the Commission was that on returning to work she had also learnt that attempts to resolve the situation through a meeting with V's solicitor and Ms D had been rebuffed by Ms Lloyd.  Ms McDonnell's understanding was that Ms Kerle (V's solicitor) eventually became so frustrated with Ms Lloyd's conduct that she approach a journalist at the Fraser Coast Chronicle to raise her concerns about the handling of the matter.
  1. [82]
    Ms Lloyd's position is that it was only after the article appeared in the paper that Ms McDonnell started to voice any real concerns.  

In failing to provide an appropriate response or action and record the allegations made on 10 September, did she fail in her duty of care to two other children who remained in the foster carers' home?

  1. [83]
    In arriving at a pre-determination that V's disclosures lacked substance and were being influenced by his mother, the Department contends Ms Lloyd failed to fulfill her legislative responsibilities to the subject child, along with the two other children living with the foster carers, by reassuring them of their right to protection from harm pursuant to Section 5B(a) of the Child Protection Act 1999 and also ensuring they were protected from harm.
  1. [84]
    The Department further argued that by the time an MOC was properly recorded by Ms Schultz on 24 October 2012 in relation to V's disclosures, it had substantiated that the subject child, as well as the two other children, were physically and emotionally harmed by the foster carers and were at an unacceptable risk of future harm in their care. 
  1. [85]
    Whilst Ms Lloyd did acknowledge that a decision in respect of the level of concern and the appropriate Child Safety response should have been made within two working days of the receipt of the information, she had taken steps to ensure that on the day following the foster carers return from holidays, the CSO (Ms Stratton) had undertaken an informal interview with the children to ascertain their views in relation to their placement and their foster carers.

Ms Lloyd was of the understanding that both children indicated to the CSO they enjoyed being with their carers and no other services or agencies involved with the children had expressed any concerns in relation to the placement.  Ms Lloyd also noted she had requested the children's CSO to revisit the current safety plan to ensure the foster carers were cognisant of their obligations and that she had directed Ms Knight to engage with the QPS in respect of the concerns raised by V about his foster carers.  

  1. [86]
    The Department contends there is no evidence that a formal report was ever provided to the QPS by Ms Lloyd or Ms Knight, at Ms Lloyd's direction.  Further, that Ms Lloyd was apparently open to sending V back to the foster carer placement in circumstances where Ms Lloyd had previously speculated V had engaged in sexualized behaviours within the home.  In turn, the Department has raised questions about the impact of such a decision on the remaining children in the home in circumstances where such allegations were proven to be true, and in turn, what this says about Ms Lloyd's practice judgment given the risks to the other children.

Was Ms Lloyd provided with an opportunity to respond to the allegations that led to her dismissal?

  1. [87]
    There is no question Ms Lloyd was provided with the opportunity to respond to the allegations that led to her dismissal.
  1. [88]
    Prior to the decision to bring her employment to an end, Ms Lloyd was given the opportunity to participate in the Ethical Standards Unit (ESU) investigation into the allegations against her.  Subsequent to this, Ms Lloyd was given an opportunity to respond, again to various findings and allegations in the ESU report.  Ms Lloyd was also provided with an opportunity to make further written submissions in respect of the allegations and issues raised during the investigation.  The findings of the Ethical Standards Unit were clearly set out and explained.  Later, Ms Lloyd was provided with an opportunity to respond, in writing to the proposed penalty of dismissal.  I'm also satisfied that Ms Lloyd was provided with an appropriate amount of time to respond during the various stages of the investigation and show cause process.

Considerations and Findings

Allegation One – Adequate response to subject child's disclosures and MOC process

  1. [89]
    On her own evidence and after reviewing the guidelines in the Child Service Protection manual it is clear that Ms Lloyd did not comply with her obligations to hold an MOC case discussion within 48 hours.  Nor was any decision in respect of an MOC or otherwise recorded in the Department's case management system.  It was not until 9 October 2012 that Ms Lloyd facilitated an MOC discussion meeting.  Whilst Ms Lloyd's evidence was that she wanted additional time to gather further information, the verbal and written comments made by V in conjunction with the additional notes retained by V's mother in respect of his complaints were quite clear.
  1. [90]
    Both Mr Shearer and Ms McDonnell provided evidence to the Commission in respect of the Child Protection Act 1999 and the starting point or practice management for investigating disclosures of the nature provided by V to Ms Lloyd and Ms Knight.  In a practical sense, this translated into accepting the claims at face value in the first instance and then taking steps to determine if there was any substance to what was being alleged as part of an investigation.
  1. [91]
    I'm satisfied, based on the evidence of Ms McDonnell, Ms Knight, Ms Ackerly and even Ms Lloyd herself, that she was somewhat cynical about the nature of the claims being made by V.  Whilst one can appreciate the need to be a little cautious with these types of matters, I accept Mr Shearer's detailed explanation to the Commission as to the importance of placing the safety of the child first when serious disclosures of abuse are made by a subject child.
  1. [92]
    It is also clear Ms Lloyd did not believe V's disclosures in the context that she considered Ms D was influencing her son's complaints.  She said as much to a number of other staff members including Ms Ackerley and Ms McDonnell.  Of greater concern is that Ms Lloyd continued to maintain this position even in circumstances where she was aware of a previous MOC in respect of the same set of foster carers where it had been necessary for the Department to take steps to address inappropriate conduct on their part.  One would have thought this might have raised even a small alarm in the mind of Ms Lloyd.

Allegation Two - Acting inappropriately and blocking doorway

  1. [93]
    Even if the evidence of Ms Knight and Ms D is disregarded, CCTV footage in respect of this incident provided to the Commission indicates through the placement of her body and the way she moves her arm and hand, that either by design or default Ms Lloyd takes steps to obstruct Ms D and her son's exit from the meeting room on 10 September 2012.  Ms Lloyd can be observed standing directly in front of the door after Ms D makes an attempt to depart the room and it is clear, both she and D are forced to step into Ms Lloyd's personal space in order to get past her.
  1. [94]
    I accept Ms Lloyd's evidence she was most likely attempting to slow the meeting down, however there is a broader context to be considered here in that I also accept that by this time Ms Lloyd had already formed a view the disclosures were being driven by Ms D rather than her son. 
  1. [95]
    As such, rather than focusing on the disclosures of V, the situation even at this point had started to degenerate into a "tug-o-war" between Ms Lloyd in her role as a Departmental representative and Ms D in her role as V's mother and whether it was safe to return V to Departmental care in light of his disclosures.  In failing to commence an investigation into the disclosures made by V and providing re-assurance to Ms D and V, even at this early stage, Ms Lloyd demonstrated she was already losing sight of the real issues.  However, I also accept the situation was not assisted by the conduct of V's mother who had become quite emotive and angry by this stage.

Allegation Three - Acting inappropriately by yelling and screaming at Ms D

  1. [96]
    Again, there is a need to consider Allegation Three in the context of what had transpired previously in the meeting between Ms Lloyd, Ms Knight, Ms D and her son V.  Ms Lloyd's actions and her handling of the matter had resulted in a situation where Ms D had formed a view Ms Lloyd was somewhat disbelieving of the disclosures made by her son and there was a genuine belief on her part that he might have been returned to his foster placement notwithstanding the concerns he had raised.
  1. [97]
    The evidence indicates Ms D's concerns were understandable.  Other colleagues of Ms Lloyd's including Ms Knight, Ms McDonnell and Ms Ackerly were of the opinion Ms Lloyd did not believe V's claims based on her comments and actions before, during and after the 10 September 2012 meeting.  
  1. [98]
    By the time both ladies had moved from the meeting room and into the foyer area, the respective positions of the two appeared to be firming.  The tug-o-war between Ms Lloyd and Ms D over V and whether he it was appropriate to return V to the care of the Department in one form or another continued.  Ms Lloyd's handling and management of the matter appears to have gotten away from her in the foyer to the extent that, even on her own evidence, she had become emotive and loud.  In this way, she had clearly lost sight of the requirements under the Code to be courteous and respectful to clients of the Department.  It appears that in this moment she also lost sight of her obligations to V.

Allegation Four – Breach of policies, procedures and legislation, application for warrant on 19 September

  1. [99]
    The key issue for determination is whether the action was taken in accordance with ss 171 and 172 of the Child Protection Act 1999 and Chapter 10.10, section 1.1 of the Child Safety Protection Manual (CPSM).
  1. [100]
    It's clear from the letter prepared by V on the weekend preceding the 10 September 2012 meeting and his disclosures to Ms Knight and Ms Lloyd in the same meeting that he no longer wished to reside at his current placement due to concerns about his safety.
  1. [101]
    The CPSM leaves no doubt that a warrant cannot be obtained if a child has made a decision to move of their own volition.  However, Ms Lloyd's position was that it was Ms D who was not allowing V to return to the care of the Department.  Whilst it is Ms Lloyd's evidence that Ms Knight had become frustrated by Ms D's failure to respond to Departmental contact and had been responsible for preparing the Application for a warrant to apprehend and/or "sight" V it is clear on the material before the Commission that Ms Lloyd was the driving force behind the preparation of the warrant application both in this instance and on 3 October 2012.
  1. [102]
    On her own evidence, Ms Lloyd confirms she took steps in the week prior to issuing the first warrant to inquire with Court Services about what might be done to apprehend a child which suggests that notwithstanding the agreement between herself and Ms McDonnell and Ms Knight that V would stay with his mother, she was already considering ways to get him back into Departmental care in the days immediately following the meeting of 10 September 2012.
  1. [103]
    Again, rather the concentrating on the disclosures V had made about his carers' and attempting to determine either on her own or in conjunction with Knight why V was unhappy in his current foster environment, Ms Lloyd's main focus was turned to doing all she could to return V to Departmental care in circumstances where:
    1. (a)
      he had made certain disclosures with respect to abuse by his carers';
    2. (b)
      it had previously been agreed between Ms Lloyd, Ms Knight and Ms McDonnell to allow V to stay in the care of his mother whilst another placement was being arranged and/or until such time as it was clear Ms D was not able to cope with V;
    3. (c)
      a number of Ms Lloyd's colleagues, including Ms Knight were particularly uncomfortable with the use of a warrant to apprehend or sight V and had raised their concerns with Ms Lloyd;
    4. (d)
      Where Ms Lloyd had single-mindedly continue to pursue a warrant in circumstances which did not align with the intent of section 1.1, Chapter 10.10 of the Child Safety Protection Manual;
    5. (e)
      Where the warrant did not include information relating to the disclosures made by V or the concerns listed in his letter in respect of remaining with his current carers;
    6. (f)
      Where the action of obtaining a warrant could be described as particularly heavy-handed in circumstances where other measures could have been undertaken to re-build the relationship with Ms D and V.
  1. [104]
    Given the above findings, the only conclusion that can be arrived at is that Ms Lloyd made an application for a warrant in circumstances that did not align with ss 171 and 172 of the Child Protection Act 1999 and Chapter 10.10, section 1.1 of the Child Safety Protection Manual (CPSM).

Allegation Five – Breach of policies, procedures and legislation, application for warrant on 3 October

  1. [105]
    Likewise, I'm satisfied on this occasion Ms Lloyd also directed Ms Larder to make an application for a warrant in circumstances that did not align with ss 171 and 172 of the Child Protection Act 1999 and the intent of Chapter 10.10, section 1.1 of the Child Safety Protection Manual (CPSM).
  1. [106]
    Whilst it should be acknowledged that by this stage, V had not been sighted for a number of days and one can appreciate that on the face of it was important to make contact with him, I accept the application did not contain all the appropriate and relevant information, in particular, that V had self-placed.  I further accept that Ms Lardner was not fully aware of the all the circumstances of V's matter at the time she signed the application for a warrant.
  1. [107]
    Ms Lloyd's evidence was that at no time did anyone "direct" her to stop pursuing the warrants.  In contrast Ms McDonnell and Ms Campbell indicated they had raised concerns in respect of their concerns about the heavy-handed nature of such an approach with Ms McDonnell stating she had given Ms Lloyd a direction to not pursue the second warrant.
  1. [108]
    Having heard from Ms Knight, Ms Campbell, Mr Shearer, Ms McDonnell and Ms Lloyd as to the manner in which the professionals within the Department conduct their practice and the way in which directions are issued within the team structure, my view is that in the Maryborough office, team leaders such as Ms Lloyd were extended a reasonable degree of autonomy and trust in respect of how they managed various matters which were allocated to them.
  1. [109]
    I accept Ms McDonnell's management style was not autocratic and in that sense, she was most likely attempting to guide Ms Lloyd in her interactions with Ms D and V rather than insist or direct her on a particular course of action.  However, I also accept Ms Lloyd was dogmatic and single-minded in her pursuit of V and her attempts to return him to Departmental care, irrespective of the consequences and that she had lost sight of her obligations under the Child Protection Act 1999 in pursuit of her cause.
  1. [110]
    That aside, I'm also satisfied that the application for the warrant itself was not in accordance with the relevant legislation and procedures and Ms Lloyd, in her team leader role, again did not ensure all the appropriate and relevant information was included in the Application for Magistrate Smith to consider, in particular, that V had self-placed.

Employment History

  1. [111]
    In reaching a decision as to whether the dismissal was harsh, unjust or unreasonable I have also taken into consideration Ms Lloyd's length of service, age, prior mature age study and also her previous work history.  Whilst the Department provided the Commission with some materials which suggested Ms Lloyd had previously had some inter-personal difficulties with staff in another region, it was not able to demonstrate Ms Lloyd had engaged in similar conduct in the past.
  1. [112]
    Nevertheless, Ms Lloyd held the position of team leader with the Child Protection area, a position of some seniority and, importantly, trust.  Ms Lloyd's conduct, in respect of her heavy-handed pursuit of V and treatment of Ms D, her inappropriate use of warrants and continued disregard of the views of her colleagues in respect of her handling of the matter was a serious breach of that trust and a gross error of judgment over an ongoing period of time by a long standing employee who should have known better.

 Conclusion and order

  1. [113]
    In Commonwealth Bank of Australia v Barker [2103] FCAFC (6 August 2013) (Barker) the Court referred to Blyth Chemicals Ltd v Bushnell [1933] HCA 8 (1933) 49 CLR 66 wherein Dixon and McTiernan JJ stated:

"Conduct which in respect of important matters is incompatible with the fulfilment of an employee's duty, or involves an opposition, or conflict between his interest and his duty to his employer, or impedes the faithful performance of his obligations, or is destructive of the necessary confidence between employer and employee, is a ground of dismissal (Boston Deep Sea Fishing and Ice Co. v. Ansell [5]; English and Australian Copper Co. v. Johnson [6]; Shepherd v Felt and Textiles of Australia Ltd [7].  But the conduct of the employee must itself involve the incompatibility, conflict, or impediment, or be destructive of confidence."

  1. [114]
    In effect, the Department had lost all trust in the Applicant.
  1. [115]
    Having carefully weighted all the evidence and considered the matters that the Commission is required to consider under s 77 of the Act, I conclude Ms Lloyd's dismissal was not harsh, unjust or unreasonable.  The dismissal is therefore not "unfair" within the meaning of s 73 of the Act.
  1. [116]
    Accordingly, the application is dismissed.

Footnotes

[1] Public Service Commission, Code of Conduct For the Queensland Public Service, December 2010, Brisbane, < www.psc.qld.gov.au/includes/assets/qps-code-conduct.pdf>.

[2] Department of Communities, Child Safety and Disability Services, Child Safety Practice Manual, 27 May 2015. < https://www.communities.qld.gov.au/childsafety/child-safety-practice-manual>.

Close

Editorial Notes

  • Published Case Name:

    Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)

  • Shortened Case Name:

    Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services)

  • MNC:

    [2015] QIRC 138

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    30 Jul 2015

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Blyth Chemicals Ltd v Bushnell [1933] HCA 8
1 citation
Jump To
Cite 1 - [1933] HCA 8
Blythe Chemicals Ltd v Bushnell (1933) 49 CLR 66
1 citation
Jump To
Cite 1 - (1933) 49 CLR 66

Cases Citing

Case NameFull CitationFrequency
Abercrombie v State of Queensland (Department of Health) [2021] QIRC 2044 citations
Casperson v State of Queensland (Department of Education) [2021] QIRC 1193 citations
Collins v State of Queensland (Department of Education) [2024] QIRC 865 citations
Lynam v State of Queensland (Department of Housing and Public Works) [2021] QIRC 144 citations
Pflaum v State of Queensland (Department of Education) [2024] QIRC 502 citations
Royle v State of Queensland (Department of Health) [2021] QIRC 1423 citations
Sandhu v Wide Bay Hospital and Health Service [2019] QIRC 1825 citations
Shaw v State of Queensland (Department of Education) [2021] QIRC 1272 citations
Tucker v State of Queensland (Department of Health) [2021] QIRC 1454 citations
1

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