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Hegarty v Townsville City Council[2015] QIRC 208

Hegarty v Townsville City Council[2015] QIRC 208

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Hegarty v Townsville City Council [2015] QIRC 208

PARTIES: 

Hegarty, Daryl Thomas

(Applicant)

v

Townsville City Council

(Respondent)

CASE NO:

B/2015/29

PROCEEDING:

Action on industrial dispute

DELIVERED ON:

3 December 2015

HEARING DATES:

29 and 30 October 2015

HEARD AT:

Townsville

MEMBER:

Industrial Commissioner Neate

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – ACTION ON INDUSTRIAL DISPUTE – Disciplinary action against Council employee – employer satisfied that allegations in relation to specified behaviour by employee substantiated – Step 3 warning issued under counselling and disciplinary procedure of the relevant certified agreement – whether evidence supported findings about allegations – whether Step 3 warning was appropriate in relation to specified behaviour

CASES:

Industrial Relations Act 1999 ss 229, 230, 274, 274A

Hallett Brick Industries Ltd v Kennewell (1976) 43 SAIR Pt 1 477

Bi-Lo Pty Ltd v Hooper AND Hooper v Bi-Lo Pty Ltd (1992) 59 SAIR 342; 53 IR 224

Hegarty v Townsville City Council [2015] QIRC 165

Raymond Harris AND Gold Coast City Council (D/2010/121) - Decision

Stark v P & O Resorts (Heron Island) AND Simpson v P & O Resorts (Heron Island) (1993) 144 QGIG 914

APPEARANCES:

Mr J. O'Donnell, advocate, instructed by the Applicant

Mr J. Healy of the Respondent

Decision

  1. [1]
    Daryl Thomas Hegarty has been employed by Townsville City Council ("the Council") since January 2002.  He is a Local Law officer.  Following a disciplinary process commenced in February 2014 in relation to certain alleged behaviour by him, Gavin Lyons, the Director of Community and Environment with the Council, decided that certain allegations against Mr Hegarty were substantiated.  As a consequence, Mr Lyons, issued a Step 3 warning to Mr Hegarty.  That warning was contained in a letter dated 21 August 2015 in which Mr Lyons advised Mr Hegarty that a copy of the warning would be placed on his personal file for 12 months and would be taken into account if any further reports of similar behaviour are received.
  1. [2]
    On 24 August 2015, Mr Hegarty gave notice of an industrial dispute.  The notice was filed in the Queensland Industrial Relations Commission ("the Commission") in relation to the Step 3 warning.  These proceedings were preceded by other proceedings in the Commission in relation to aspects of the disciplinary process that led to the Step 3 warning.  It is not necessary to recount in detail those proceedings other than to note they have involved a separate conciliation conference before Deputy President Swan, and an application for an injunction which was heard and decided by Deputy President O'Connor.[1]

Orders sought and Commission's power to make those orders

  1. [3]
    The Notice of Industrial Dispute under s 229 of the Industrial Relations Act 1999 ("the Act") identified the relief sought in the following terms:

"The purpose of this section 229 - Dispute Notification is to seek the assistance of the Queensland Industrial Relations Commission in relation to the harsh disciplinary penalty which has been imposed on Daryl Hegarty by Townsville City Council.  Specifically, what is sought is a ruling that the aforesaid finding is disproportionate and unjustified in the circumstances wherein procedural fairness has not been afforded to Daryl Hegarty.  For the duration of this matter there has been on a regular basis a withholding of relevant material from Daryl Hegarty by Townsville City Council and it is submitted that this continuum of behaviour by Townsville City Council has had the effect that Daryl Hegarty has not been, in any way, given a fair go."

  1. [4]
    At the commencement of the hearing, when asked to identify what orders were sought by Mr Hegarty, his representative, Mr O'Donnell stated that, in effect, Mr Hegarty sought a ruling on:
  1. (a)
    whether he should have been disciplined by the Council; and
  1. (b)
    if so, what penalty should be imposed.
  1. [5]
    At the conclusion of the hearing, Mr O'Donnell submitted that the Commission should make the following orders:
  1. That Townsville City Council rescinds the Step 3 final warning issued to Daryl Thomas Hegarty on 21 August 2015.
  1. That Townsville City Council on 30 October 2015 instead issues a Step 2 warning to Daryl Thomas Hegarty.
  1. That Orders 1 and 2 finalise and settle matter B/2015/29.
  1. [6]
    Section 230 of the Act provides, in part that the Commission may take the steps it considers appropriate for the prompt settlement of the dispute by arbitration (s 230(3)).  Without limiting that power, the Commission may "make another order or exercise another power the commission considers appropriate for the … prompt settlement of the dispute" (s 230(4)(d)).
  1. [7]
    When asked the source of the Commission's power to make the orders sought, Mr O'Donnell referred to s 274 and s 274A of the Act.  The potentially applicable parts of those sections provide that:
  1. (a)
    the Commission has the power to do all things necessary or convenient to be done for, or in connection with, the performance of its functions (s 274(1));
  1. (b)
    without limiting that power, the Commission in proceedings may make a decision it considers appropriate, irrespective of the specific relief sought by a party, or make an order it considers appropriate (s 274(2)(b) and (c)); and
  1. (c)
    the Commission may, on application, make a declaration about an industrial matter whether or not consequential relief is or could be claimed (s 274A(1) and (2)).
  1. [8]
    The Council accepted that the Commission had power to make orders to remove the warning.[2]

 Representation

  1. [9]
    Mr Hegarty did not consent to the Council being legally represented at the hearing.  Consequently, James Healy, the Council's Employee Relations Advisor appeared.  He was assisted by Mr Le Mare, who provided legal advice to Mr Healey at relevant times during the hearing.

Evidentiary issue

  1. [10]
    A significant issue in the conduct of this case was what evidence had been relied on by Mr Lyons when deciding whether the allegations against Mr Hegarty had been substantiated and, if they were substantiated, what penalty should be imposed.
  1. [11]
    At various stages in the disciplinary process, including different proceedings in the Commission, Mr Hegarty has sought access to the full text of an Investigation Report and associated witness statements said to be relevant to the decision to issue the Step 3 warning.  The Council has provided Mr Hegarty with documents, including redacted copies of the Investigation Report and witness statements.  The Council declined to provide complete copies of those documents on the basis that:
  1. (a)
    the material relevant to the disciplinary decision has been provided to Mr Hegarty;
  1. (b)
    the redacted material is not relevant to the disciplinary decision because it relates to:
  1. matters which are not relevant to the substance of the final allegations to which Mr Hegarty was required to respond and which formed the basis of the Step 3 warning (for example, information that was used in respect of the bullying allegation that was subsequently withdrawn); or
  1. matters which relate to disciplinary considerations about employees other than Mr Hegarty;[3]
  1. (c)
    the redacted material includes information which might adversely affect ongoing relationships in the workplace between Mr Hegarty and those of his fellow employees who made statements as part of the investigation which led to and informed the decision to issue the Step 3 warning.[4]
  1. [12]
    The Council maintained its position at the hearing, but offered to provide the Commission with a complete copy of those documents, so that the Commission could be satisfied that the redacted material was not relevant to the disciplinary decision.  Although Mr Hegarty's preferred position was to have access to all the documents, Mr O'Donnell submitted that he would be content for the Commission to read the unredacted, unabridged statements, investigation report and Mr Hegarty's personnel file for the purpose of deciding whether the material that was withheld from Mr Hegarty was relevant to the decision-maker's decision.[5]
  1. [13]
    I reserved making any decision in relation to that offer until evidence had been given by the witnesses called by the Council so that I could be satisfied about the nature and extent of the material on which the disciplinary decision was based.  Having heard the oral evidence of Kara de Lucey, who prepared the Investigation Report, and Mr Lyons, and having read their affidavit evidence, I decided not to accept the full Investigation Report and witness statements but to have regard only to the redacted versions of them that were provided to Mr Hegarty.
  1. [14]
    First, the purpose of providing the full documents to me alone was so that I could be satisfied that the material that was, and remains, withheld from Mr Hegarty was irrelevant to the disciplinary decision.  The practical implications of me taking that approach would be that either:
  1. (a)
    I would find that the redacted material was irrelevant to the Council's disciplinary decision, and hence of no relevance to my decision, and the time taken to read it carefully would be a waste of the Commission's resources; or
  1. (b)
    I would find that some redacted material might have been relevant to the Council's disciplinary decision, and hence I would have actual knowledge of information that might affect my decision.  If that was the case, it would be appropriate, if not necessary, to disclose that information to Mr Hegarty and give him an opportunity to make submissions in relation to it, with consequent cost and delay implications.
  1. [15]
    Second, the Council submitted that if the Commission were to have regard only to the redacted versions of the documents (which, the Council contends, provided the basis for the decision in relation to the relevant incidents), the Commission would be satisfied that the Step 3 warning should have been issued.
  1. [16]
    Third, I understood the Council is willing to risk having a finding against it rather than, for the reasons noted earlier, disclosing the redacted material to Mr Hegarty.
  1. [17]
    The basis on which the Council put its case is unusual and, from Mr Hegarty's perspective, unsatisfactory.  However, I was willing to proceed on that basis.
  1. [18]
    The Commission does not have evidence about all those aspects of Mr Hegarty's history of behaviour in the workplace which also informed Mr Lyons' decision (see [59] - [60], [97] and [100] below).  The Commission can only proceed on the basis of relevant evidence before it.  Consequently, the Commission must decide whether those decisions could have been made reasonably by Mr Lyons if he had relied only on the information disclosed in the redacted report and statements.
  1. [19]
    At the end of the hearing, the Commission was advised that Mr Hegarty accepted that he needs to work in a workplace without conflict with the people (identified to him and not identified) who made statements on which Mr Lyons relied.  He accepts that that is a reason for the Council to withhold that material from him.[6]

Key events preceding the Step 3 warning

  1. [20]
    To understand something of the rationale for Mr Hegarty's current application to the Commission, it is appropriate to summarise the key events over the almost 19 months between 5 February 2014 (when the first incident occurred) and 21 August 2015 (when the Step 3 warning was issued).
  1. [21]
    On the morning of 5 February 2014, there was a Local Laws meeting, chaired by Mick Worth (one of the team leaders).  During the meeting there was a discussion about whether an employee was able to do on-call after hours duties (and claim the on-call allowance) whilst absent on personal carer's leave or sick leave.  Mr Hegarty referred to a work colleague from a different unit, Kym Cole,[7] who was not present at the meeting.  He said that he was aware that she had accessed on-call duties whilst she was absent from the workplace on personal leave.  According to Mr Hegarty, his intention in raising this example was to seek clarification and not to dob in a workmate.  By his account, the discussion of this issue lasted for approximately 10 minutes and no clarification was reached in relation to the circumstances under which an employee could access on-call duties.  That afternoon he received an email from Kym Cole (copied to Sandi McClintock, Mr Hegarty's team leader) stating that she did "not appreciate" him using her as an example in the meeting and explaining why she was concerned.  Mr Hegarty replied in detail by email to Ms Cole at 5.06 pm. 
  1. [22]
    About 5.15 pm that day, Mr Hegarty was walking towards his motorcycle in the Council car park.  By his account, Ms Cole and Mr Worth were facing each other and talking.  Mr Hegarty spoke to Ms Cole in an attempt to explain what had taken place at the meeting that morning.  He sensed that she was unhappy and realised she was becoming quite agitated.  He tried to walk away.  Mr Worth followed him and they had a discussion about the issue.  During that discussion another employee, Tina James, approached the three of them and asked what was going on.  Mr Hegarty says that he was about seven metres (or three carpark spaces) away from Ms Cole at this time.[8]  Ms Cole stated loudly that Mr Hegarty should go away.  He did.  Another work colleague, Joanna Loukaras witnessed most of what had occurred.
  1. [23]
    On 18 February 2014, Ms McClintock gave Mr Hegarty a letter headed "Alleged Misconduct" from Rob Smith, Manager of Regulatory Services.  The letter informed Mr Hegarty that the following allegation of misconduct had been made against him:

"a) On Wednesday 5th of February 2014 at approximately 5:15pm you did not demonstrate respect as a council officer towards employees of the Council in the public car park area of the Townsville City Council building at 86 Thuringowa Drive, Kirwan.

  • Your body language was aggressive and threatening
  • You were waiving [sic] your arms
  • Your voice was raised
  • You attempted to discuss council process in a public area using intimidating and accusatory language."
  1. [24]
    The letter advised Mr Hegarty that, if found true, the allegation would constitute misconduct by him and a breach of his duty to the Council under the local government principles and would give grounds for disciplinary action to be taken against him.  Such behaviour would constitute a breach of specified obligations under the Council Code of Conduct for Staff.  Mr Hegarty was invited to attend a meeting with Ms McClintock (Acting Coordinator Compliance) and Kara de Lucey Wright (Divisional Adviser, Human Resources) on 26 February 2014.  The purpose of that meeting was to discuss the matter with him and determine what action, if any, should be taken.  He would be given the opportunity to respond.  If the allegation was found to be true, consideration would be given to disciplinary action in accordance with clause 22 (Counselling and Disciplinary Procedure) of the Townsville City Council (Queensland Local Government Officers) Certified Agreement 2012.  Mr Smith stated that he was considering recommending a Step 3 final warning should the allegations be substantiated.  The letter continued:

"This is a confidential matter.  Under no circumstances are you to discuss this investigation with co-workers or other individuals (except your nominated union representative) while the investigation is being undertaken.  If this instruction is not adhered to it will be considered a breach of the Code of Conduct for Staff, and may lead to disciplinary action against you."

  1. [25]
    According to Mr Hegarty, the letter came as a real shock.  He had not been given prior notice or involved in a discussion about it.  He was unwell[9] and in an emotional state.  He was upset.  About 40 minutes after receiving the letter (and having called his partner and his union representative), Mr Hegarty decided to resign his employment with the Council.  He informed Gavin Hammond, Mr Smith, Ms McClintock, Ms Cole, Ms de Lucey and Mr Lyons of his decision to resign.  Mr Hegarty said to Ms Cole words to the effect that "You don't have to worry about the grievance process now Kym - I have resigned."  Up to 20 people worked in the open plan office environment.  At the time when he spoke directly to some of his work colleagues others may have overheard those conversations.  When he returned to his workstation after telling management of his decision to resign, he began to clear his desk.  Mr Worth approached him and Mr Hegarty told him that he had resigned.  Mr Hegarty acknowledged making at least one inappropriate comment.  Although Mr Hegarty said that he was not abusive and did not use any profanity when he informed people of his decision to resign, and he did not intend to be disruptive, he understood why this may have been seen as disruptive.  It was, he stated, a very emotional period for him.
  1. [26]
    According to the written statement of Ms Loukaras dated 14 October 2014 attached to the Investigation Report, Mr Hegarty contacted her via Facebook at 9.40 pm on 19 February 2014 stating that he had received a letter about the allegation and asked if she had seen it.  The wording of his Facebook post quoted in that statement is:

"It says in the letter that my bodily language was aggressive and threatening

I was waiving my arms, my voice was raised, and I attempted to discuss council process in a public area using intimidating and accusatory language."

  1. [27]
    In a separate statement dated 30 May 2014, Ms Loukaras referred to a Facebook conversation on 19 March 2014 with Mr Hegarty "over the incident that happened in the car park on the 5th February 2014 at approximately 5:15pm."
  1. [28]
    Mr Hegarty subsequently reconsidered his decision to resign and advised Mr Smith of that by email on 19 February 2014.  He then had a period of sick leave and did not return to work until 22 May 2014.  Rather than return to his substantive position as Local Laws Officer, he was seconded to Waste Services until 30 June 2014.  On 26 May 2014, he sent an email to Ms de Lucey asking her to advise of a possible date for the meeting concerning the alleged incidents.  He followed this with an email on 16 June 2014 to Tennille Smith, who had taken over Ms de Lucey's position for six months.  Mr Hegarty continued to work at Waste Services until 13 July 2014 and then at Waste Water until 19 August 2014.  On 27 August 2014, Mr Hegarty met with Greg Moylan, Tennille Smith and Tina James at the Council HR office.  Present with him was his partner, Meagan Hough.  His union representative, Tammy Gaze, was linked in by telephone.  According to Mr Hegarty, he understood that this meeting was about facilitating his return to the Local Laws Unit.  However he was informed that he had been stood down on full pay effective immediately, pending the outcome of the disciplinary process.
  1. [29]
    By letter dated 28 August 2014 signed by Mr Smith and headed "Alleged Misconduct", Mr Hegarty was informed that two allegations of misconduct had been made against him.  The first was as set out in the letter dated 18 February 2014.  The second was that:

"b) B) On Tuesday 18th of February 2014 at approximately 4:30pm you did not demonstrate integrity or respect as a council officer towards employees of the Council, that place being your place of work at stage 1 ground floor, Townsville City Council building at 86 Thuringowa Drive, Kirwan.

  • You did not maintain confidentiality in relation to an investigation of alleged misconduct made against you
  • You did not provide relevant information when required of your actions taken in relation to a dog attack when requested
  • Your behaviour was disruptive to other employees."

Again he was advised that, if found true, the allegation would constitute misconduct by him and a breach of his duty to the council under the local government principles and would give grounds for disciplinary action to be taken against him.  If found true, his behaviour would constitute a breach of specified obligations under the Council Code of Conduct for Staff.  He was invited to attend a meeting with Mr Moylan (Manager of Employee Relations), Ms McClintock (Supervisor of Local Laws) and Ms Smith (Division Advisor, Human resources) on 5 September 2014.  The purpose of the meeting was to discuss the matter with him, to determine what action, if any, might be taken, and to give him the opportunity to respond.  He was further advised that the Council is considering "action up to and including dismissal should these allegations be substantiated."  Mr Hegarty was informed that, to allow the proper conduct of this investigation, it was considered necessary to stand him down from work with full pay, "effective immediately and until further notice."  The letter continued:

"This is a confidential matter.  Under no circumstances are you to discuss this investigation with co-workers or other individuals (except your nominated union representative) while the investigation is being undertaken.  If this instruction is not adhered to it will be considered a breach of the Code of Conduct for Staff, and may lead to disciplinary action against you."

  1. [30]
    In a document dated 22 September 2014, addressed to Mr Smith, Mr Hegarty responded in detail to the allegations outlined in Mr Smith's letter of 28 August 2014.
  1. [31]
    Ms de Lucey was appointed in April 2015 to investigate the matter.[10]  She prepared an Investigation Report (marked Staff in Confidence) dated 19 May 2015.  The Report is 39 pages long and has 29 attachments including witness statements, email correspondence, maps and the minutes of the tool box meeting of 5 February 2014.  The conclusion to the report stated that, based on the interviews conducted and documentation reviewed, on the balance of probabilities Ms de Lucey found that Mr Hegarty:
  1. On Wednesday, 5 February 2014 at approximately 5:15pm did not demonstrate respect as a council officer towards employees of the Council in the public car park area of Townsville City Council in that:
  • His voice was raised
  • He attempted to discuss council process in a public area.
  1. On 18 February 2014 at approximately 4:30pm did not demonstrate integrity or respect as a council officer towards employees in the Council in that:
  • He did not maintain confidentiality in relation to an investigation of alleged misconduct made against him
  • His behaviour was disruptive to other employees.
  1. [32]
    Ms de Lucey found that Mr Hegarty had violated specified parts of the Code of Conduct for Staff.  She recommended that disciplinary action of a Step 3 written warning be issued to Mr Hegarty in relation to allegations 1 and 2 and stated:
  1. (a)
    that any future behaviour of a disrespectful or disruptive nature will be considered a further breach of the Code of Conduct for Staff with termination of employment a possible disciplinary action;
  1. (b)
    that any future attempts to interfere with and on-going disciplinary investigation will be considered a further breach of the Code of Conduct for Staff with termination of employment a possible disciplinary action.
  1. [33]
    By letter to Mr Hegarty dated 4 June 2015 headed "A) Findings of Misconduct  B) Advice of a Further Allegation," Mr Lyons stated that he had received a report from Ms de Lucey regarding an investigation that had been conducted into allegations of misconduct against him.  He repeated the allegations in respect of the events on 5 and 18 February 2014 and noted that Mr Hegarty had provided a written response to the allegations on 22 September 2014.  Mr Lyons advised that the investigation had been completed.  Based on the interviews conducted and the documentation reviewed, the "preliminary finding" was that the following allegations had been substantiated:
  1. On Wednesday, 5 February 2014 at approximately 5:15pm you did not demonstrate respect as a council officer towards employees of the Council in the public car park area of Townsville City Council in that:
  • your voice was raised
  • you attempted to discuss council process in a public area.
  1. On 18 February 2014 at approximately 4:30pm you did not demonstrate integrity or respect as a council officer towards employees in the Council in that:
  • you did not maintain confidentiality in relation to an investigation of alleged misconduct made against you
  • your behaviour was disruptive to other employees.

Mr Lyons stated that, if substantiation is confirmed, Mr Hegarty's actions in relation to those allegations would constitute misconduct and render him liable for disciplinary action.  The application of a Step 3 final warning would be considered on the basis that he would be found to have breached specified parts of the Code of Conduct for Staff.  However, Mr Hegarty was not asked to show cause why that disciplinary action should not be taken against him because Mr Lyons advised him of "a further allegation that must be addressed in conjunction with the above matters."

  1. [34]
    Mr Lyons wrote that, during the course of the investigation into allegations of misconduct made against Mr Hegarty on 18 February 2014 and 28 August 2014, staff (colleagues, supervisors and managers) provided statements to assist and inform the investigation.  Arising from those statements was an allegation that:

"In the course of your employment prior to the incident of 18 February 2014 you bullied and harassed staff of the Environmental Health Department through repeated intimidation, aggression, overbearing and combative conduct in your interactions with the staff of that Department."

Details of this new allegation were provided by way of extracts of statements provided by eight unnamed staff members.  Mr Lyons advised Mr Hegarty that if the new allegation was found to be true, it would constitute serious misconduct and a breach of Mr Hegarty's duty to the Council under the local government principles and would give grounds for disciplinary action against him.  Such conduct would be considered a breach of the Prevention of Workplace Harassment ("Bullying") Administrative Directive and/or specified parts of the Code of Conduct for Staff.  Mr Hegarty was advised that "termination of your employment will be considered should this new allegation is substantiated."  He was invited to attend a meeting with Ms de Lucey and Mr Healey on 12 June 2015.  The purpose of the meeting was to discuss this new matter with him and to determine what action, if any should be taken in relation to it.  Mr Hegarty would be given the opportunity to respond.  He was informed that, pending the outcome of the investigation of this matter, he was to remain stood down from work with pay.  The letter included a paragraph in relation to this "confidential matter" in the same form as in previous letters.

  1. [35]
    A brief meeting of Mr Healey and Ms de Lucey with Mr Hegarty, Ms Hough and Mr O'Donnell took place on 4 June 2015, and there was subsequent correspondence between Mr Healey and Mr O'Donnell (as Mr Hegarty's representative) in relation to the allegations against Mr Hegarty.  Mr Hegarty gave notice of an industrial dispute under s 229 of the Act and there was a conciliation conference at the Commission.
  1. [36]
    In a letter to Mr Hegarty dated 22 July 2015 and headed "Invitation to Show Cause," Mr Lyons referred to the hearing at the Commission on 2 July 2015 when the Council undertook to reframe its letter to Mr Hegarty dated 4 June 2015.  It advised Mr Hegarty that the Council had decided not to proceed with the allegations contained in that letter in relation to bullying and harassment.  That behaviour would be addressed through other, non-disciplinary processes on Mr Hegarty's return to work.  In relation to the allegations contained in Part A of the letter dated 4 June 2015, Mr Lyons referred to Ms de Lucey's report of the investigation into allegations of misconduct by Mr Hegarty.  Mr Lyons also referred to the letters dated 18 February 2014 and 28 August 2014 which provided written notices of the allegations against Mr Hegarty.  He noted that a meeting was scheduled for 5 September 2014 so that Mr Hegarty could provide his response to the allegations in person, but Mr Hegarty declined to attend the meeting and instead provided a written response on 22 September 2014.
  1. [37]
    Mr Lyons advised Mr Hegarty that the investigation had been completed.  Based on the interviews conducted, the documentation reviewed, and Mr Hegarty's written response, Mr Lyons had drawn a "preliminary conclusion" that the following allegations had been substantiated:
  1. On Wednesday, 5 February 2014 at approximately 5:15 pm you did not demonstrate respect as a Council officer towards employees of the Council in the public car park area of Townsville City Council in that:
  • Your voice was raised
  • You attempted to discuss Council process in a public area.
  1. On 18 February 2014 at approximately 4:30 pm you did not demonstrate integrity or respect as a Council officer towards employees of the Council in that:
  • You did not maintain confidentiality in relation to an investigation of alleged misconduct made against you
  • Your behaviour was disruptive to other employees.
  1. [38]
    Mr Lyons specified the factual basis on which he reached his "preliminary conclusion" in relation to each allegation.  He advised Mr Hegarty that if the preliminary conclusion is confirmed "for either or both allegations," his actions in relation to them would constitute misconduct and accordingly render him liable for disciplinary action.  "The application of a Step 3 Final Warning would be considered on the basis that" Mr Hegarty would be found to have breached specified parts of the Code of Conduct for Staff.  Mr Lyons invited Mr Hegarty to attend a meeting with him on 29 July 2015 at which he would be given "the opportunity to respond to this letter and to make any representations which you consider appropriate or that should be taken into account in respect of any action that may be taken."  Alternatively, if he preferred, Mr Hegarty could respond in writing to Mr Healey, Employee Relations Advisor at the Council, by 29 July 2015.  Mr Lyons stated that he would consider all submissions in order to make his "final decision."  Pending the outcome of that decision, Mr Hegarty was to remain stood down from work with pay.  The letter continued:

"As you are aware, this is a confidential matter.  You are reminded that under no circumstances are you to discuss this investigation while it is ongoing, with co-workers or other individuals connected with the Council, except for your nominated union representative or support person.  It is imperative that at no stage do you approach or contact any staff member in relation to the contents of this letter or any related matters.

If this instruction is not adhered to it will be considered a breach of the Code of Conduct for Staff, and may lead to disciplinary action against you."

  1. [39]
    By letter dated 13 August 2015 headed "Daryl Thomas Hegarty's Response to Show Cause" and addressed to Mr Lyons (Attention Mr Healy), Mr Hegarty answered the issues outlined in the letter of 22 July 2015 and stated that he was "looking forward to returning to the workplace and in doing so, putting the past 18 months behind me."
  1. [40]
    By letter dated 21 August 2015 to Mr Hegarty, headed "Findings of Misconduct," Mr Lyons advised that he had responsibility for disciplinary action against Council employees and that he had received a report from Ms de Lucey regarding an investigation conducted into allegations of misconduct against Mr Hegarty.  He referred to the written notice of allegations dated 18 February 2014 and 28 August 2014 and to Mr Hegarty's written response on 22 September 2014.  He also referred to the letter dated 22 July 2015 in which Mr Hegarty was advised that investigation had been completed, the preliminary finding was that some specified allegations had been substantiated, the conduct may constitute misconduct, and disciplinary action in the form of a Step 3 final warning was being considered.  Mr Hegarty had been invited to show cause why the action recommended should not be taken against him.  He declined the opportunity to discuss the matter in person, and provided a full written response on 14 August 2015.  Mr Lyons stated that he had given careful consideration to Mr Hegarty's responses and they did "not provide valid or relevant reasons to lead me to dismiss disciplinary action in respect of the allegations against" Mr Hegarty.
  1. [41]
    Mr Lyons advised that he remained satisfied that the allegations made against Mr Hegarty were substantiated and that Mr Hegarty had engaged in misconduct.  He continued:

"Behaviour such as that you have displayed has a significant, negative impact on staff and on the operations of Townsville City Council and this is unacceptable.

By behaving in this way you have breached the Code of Conduct for Staff and have committed misconduct.  Having carefully considered the serious nature of the substantiated behaviour, I have determined that the disciplinary penalty to be applied against you is a step 3 final warning.

Accordingly, this letter serves as a step 3 final warning in accordance with the Council's Disciplinary Procedure outlined in Section 22 of the Townsville City Council Collective Agreement 2012.

You must ensure that your future behaviour and conduct complies with your obligations under the Council Code of Conduct for Staff at all times."

  1. [42]
    Mr Hegarty was advised that, as he had been stood down from his substantive roles since 28 August 2014, preparations needed to be made for his return to work.  He was required to return to his substantive role on 7 September 2015.  He is also advised that, upon his return to work on that date, he would be required to participate in a return to work meeting to ensure that he had a clearer understanding of the behavioural expectations of a Council officer.  He was to be provided with an update of the Environmental Health Department service delivery review and any substantial changes that have been made during his absence.
  1. [43]
    Mr Lyons also wrote:

"Should you display any behaviour of a similar nature that does not comply with the Council Code of Conduct for Staff in the future, you may be liable for further disciplinary action, which could result in the termination of your employment.

A copy of this written warning will be placed on your personal file for a period of 12 months, and will be taken into consideration should any further reports of similar behaviour be received against you.

I trust that you will treat this warning as a serious matter, and ensure that your behaviour meets Council standards from this point on."

The decision-making process and the basis for the Step 3 warning

  1. [44]
    Criticisms were made on behalf of Mr Hegarty about the process leading to the issue of the Step 3 warning.  For example he criticised:
  1. (a)
    the unusually long time taken to reach a decision; and
  1. (b)
    the content of show cause letters.
  1. [45]
    However, it is clear from the evidence that:
  1. (a)
    much of the delay was because Mr Hegarty was on sick leave, or was employed for some weeks in three positions other than as a Local Laws officer, or because other employment options were being explored following a conciliation conference at the Commission; and
  1. (b)
    although Mr Hegarty contended that some of the allegations were broadly worded and he had some difficulty responding to them, he provided detailed and comprehensive responses.
  1. [46]
    The decision about the present application is not to be based on an assessment of those flaws or delays in the disciplinary decision making process.  The chief criticism, made by Mr Hegarty, was that Mr Lyons took into account materials other than those conveyed to Mr Hegarty.  In Mr O'Donnell's submission, the fact that Mr Lyons had regard to other matters is an "insurmountable hurdle" for the Council.  Mr Hegarty was not given an opportunity to respond to matters concerning his employment history before the events of February 2014.  As a result of that "misstep" Mr Lyons' right to make a decision about the level of discipline to be imposed on Mr Hegarty was diminished.[11]
  1. [47]
    In reviewing the decision-making process it is relevant to record why it was Mr Lyons who made the decision, the process he followed in making that decision, the incidents that formed the basis for the disciplinary decision, the information he took into account as the basis for his decision, and why he considered a Step 3 warning to be appropriate.
  1. [48]
    Why Mr Lyons made the decision: The hierarchy of management from Mr Hegarty to Mr Lyons is:
  • Gavin Lyons - Director of Community and Environment
  • Gavin Hammond - Executive Manager-Environmental Health
  • Rob Smith - Manager of Regulatory Services
  • Mykel Smith - Coordinator of Regulatory Services
  • Sandi McClintock - Team Leader - Regulatory Services
  • Daryl Hegarty - Local Laws Officer.
  1. [49]
    It would have been usual practice for a disciplinary decision about Mr Hegarty to be made at a local level, and it had been intended that Rob Smith would be the decision-maker.  Mr Lyons made the decision because Mr Smith was a witness to the incident on 18 February 2014, as was Mr Hammond.  (Exhibit 6, [15])
  1. [50]
    Decision-making process: There was evidence from Ms de Lucey and Mr Lyons that the formal disciplinary process was initiated (at least in part) because of Mr Hegarty's behaviour in the workplace.  According to Ms de Lucey, Mr Hegarty's employment history was part of the consideration to move to a disciplinary action.  If he had not received feedback or other attempts at managing his conduct before February 2014, then it was "unlikely" that they "would have moved straight to disciplinary action."[12]  She described disciplinary investigations or actions as "a last resort."  Ordinarily, in the absence of a serious event or matter, other means are explored first.  In this case, she considered the number of attempts that Mr Hegarty's managers had made to address his inappropriate conduct over a period of time.  Mr Lyons confirmed, in his affidavit and oral evidence, that a formal investigation was appropriate given the history of Mr Hegarty's behaviour and performance.  (Exhibit 6, [27])
  1. [51]
    However, Ms de Lucey also gave evidence that, irrespective of that background, the complaints were serious enough to move to disciplinary action.  Although the purpose of the investigation was to conduct a thorough and objective review of the events that occurred on 5 and 18 February 2014, the Investigation Report states that these events "have been reviewed in conjunction with other relevant matters related to Mr Daryl Hegarty's employment."  Some such matters in 2012 and 2013 were mentioned as Additional Background Information in the Report.
  1. [52]
    Ms de Lucey gave evidence that the information from Mr Hegarty's personnel file which she considered in drafting the Investigation Report is included in the Report.[13]  She distinguished between the relevance of Mr Hegarty's employment history to the commencement of a disciplinary investigation, and the level of the penalty imposed on him.  She also stated that, in accordance with disciplinary policy,[14] she could not refer to a disciplinary matter that is more than 12 months old.[15]
  1. [53]
    Mr Lyons described his usual decision-making process in relation to disciplinary matters as follows:

"I ensure that I gather as much information as possible from the relevant parties so that I can get as clear an understanding of the incidents as is possible.  I review the facts and relevant information provided to me by all relevant parties and I consult with HR advisors.  I then make a determination as to the appropriate disciplinary outcome based on those facts and that information."  (Exhibit 6, [45])

  1. [54]
    The steps that preceded and led to Mr Lyons' decision to issue the Step 3 warning are set out above.  In summary:
  1. (a)
    On 18 February 2014, Mr Hegarty was given a letter signed by Rob Smith informing him of the allegations about his conduct on 5 February 2014, inviting him to a meeting to discuss the matter on 26 February 2014, and informing him of the possible recommendation of a Step 3 final warning should the allegations be substantiated;
  1. (b)
    after various delays, a meeting was held on 27 August 2014;
  1. (c)
    by letter dated 28 August 2014, signed by Mr Smith, Mr Hegarty was informed again of the allegation about his conduct on 5 February 2014 and of allegations about his conduct on 18 February 2014, invited to a meeting on 5 September 2014, and informed that Council was considering action up to and including dismissal should these allegations be substantiated;
  1. (d)
    by letter dated 22 September 2014, addressed to Mr Smith, Mr Hegarty responded in detail to the allegations outlined in the letter of 28 August 2014;
  1. (e)
    Ms de Lucey prepared the Investigation Report dated 19 May 2015;
  1. (f)
    by letter dated 4 June 2015, Mr Lyons informed Mr Hegarty of preliminary findings in relation to the allegations about Mr Hegarty's behaviour on 5 and 18 February 2014, informed him that if those allegations were substantiated the application of a Step 3 final warning would be considered, and informed him of a new allegation that he had bullied and harassed staff;
  1. (g)
    after a brief meeting on 4 June 2015 and a hearing in the Commission on 2 July 2015, Mr Lyons wrote to Mr Hegarty on 22 July 2015 advising that the Council had decided not to proceed with the allegations in relation to bullying and harassment, advising Mr Hegarty of Mr Lyons' preliminary conclusion that the allegations in relation to Mr Hegarty's behaviour on 5 and 18 February 2014 had been substantiated and that the application of a Step 3 final warning would be considered, and inviting Mr Hegarty to attend a meeting with him on 29 July 2015 or respond in writing by 29 July 2015;
  1. (h)
    in a letter dated 13 August 2015, Mr Hegarty answered the issues outlined in Mr Lyons' letter of 22 July 2015;
  1. (i)
    by letter dated 21 August 2015, Mr Lyons advised that he remained satisfied that the allegations against Mr Hegarty were substantiated and that Mr Hegarty was issued with a step three final warning.
  1. [55]
    In relation to procedural fairness, the Council submits that:
  1. (a)
    the allegations made in relation to Mr Hegarty and the circumstances of those allegations were provided to him[16] and were sufficient for him to respond;
  1. (b)
    Mr Hegarty provided detailed responses and those responses were considered fully;
  1. (c)
    there was no need to provide Mr Hegarty with particulars about breaching confidentiality in respect of the investigation, given that he readily admits that he discussed certain matters with Joanna Loukaras on Facebook after 18 February 2014, despite being put on notice in the letter dated 18 February 2014 that he was to maintain confidentiality in respect of the allegations;
  1. (d)
    there is no evidence that the relevant procedure under clause 22 of the certified agreement was not followed and, on the contrary, there is evidence that Mr Hegarty was given due process and that a Step 3 warning is available to the Council;
  1. (e)
    on the basis that Mr Hegarty was entitled to and was provided with specifics of the allegations made against him (but no more), Mr Hegarty has not identified any basis upon which the redacted documents must or should have been provided to him;
  1. (f)
    although the Council acknowledges that the process took longer than it should, most of the delay was at the request of Mr Hegarty or in relation to issues of his employment or health.[17]

For those reasons, the Council submits that there was no lack of procedural fairness during this disciplinary process.

  1. [56]
    I am satisfied that procedural fairness was given to Mr Hegarty, and that he was actively engaged (if belatedly) at each stage of the process.
  1. [57]
    Incidents that formed the basis for the disciplinary decision: According to Mr Lyons, he issued Mr Hegarty with a Step 3 warning on the basis of:
  1. (a)
    an altercation which took place in the Council's car park on 5 February 2014 ("the Car Park Incident");
  1. (b)
    an outburst of temper by Mr Hegarty in the office after being issued with a show cause letter on 18 February 2014 in respect of the Car Park Incident ("Office Outburst"); and
  1. (c)
    a Facebook conversation with another Council employee about the investigation into the above incidents, and which Mr Hegarty knew to be confidential ("Facebook Conversation").  (Exhibit 6, [12])
  1. [58]
    As a result of those incidents, Mr Hegarty was alleged to have:
  1. (a)
    breached the Council Code of Conduct for Staff by failing to demonstrate respect towards other Council employees in the Car Park Incident;
  1. (b)
    exhibited behaviour that was disruptive to other employees during the Office Outburst; and
  1. (c)
    failed to maintain confidentiality in relation to the investigation (Facebook Conversation).  (Exhibit 6, [14])
  1. [59]
    Information on which the disciplinary decision was made: In his affidavit evidence, Mr Lyons set out his understanding of the key facts in relation to each incident based on his review of the materials, references to which were specified for each incident.  The Investigation Report, Mr Hegarty's statements (dated 24 June and 1 October 2015), Mr Hegarty's responses (dated 22 September 2014 and 13 August 2015), and "my understanding of Mr Hegarty's background at the Council, all formed the basis of my decision."  (Exhibit 6, [46])
  1. [60]
    In relation to the last factor, Mr Lyons' affidavit evidence was that:
  • he had "been aware of various issues concerning Mr Hegarty since approximately 2011;"
  • he had been kept informed of "significant employee matters" including "a number of matters concerning Mr Hegarty;"
  • issues about Mr Hegarty had "also come up" in discussions with Mr Hegarty's Executive Manager, Gavin Hammond;
  • given the history of Mr Hegarty's behaviour and performance in the workplace, it was appropriate that a formal investigation in accordance with the Council's disciplinary process was required in relation to the Car Park Incident, as this was how "we were mostly dealing with issues concerning Mr Hegarty at that time;"
  • Mr Lyons had regard to the full text of the investigation report prepared by Ms de Lucey and the witness statements attached to that report (which include information not provided to Mr Hegarty or his adviser) and to her recommendation that Mr Hegarty be issued with a Step 3 warning;
  • the specific incidents referred to in these proceedings "were examples of Mr Hegarty's continuing behavioural issues in the workplace;"
  • those incidents, when "viewed in conjunction with Mr Hegarty's history of behaviour in the workplace" (and also in light of his continuing lack of remorse in respect of the incidents) left Mr Lyons with little hesitation in moving to a Step 3 warning.  (Exhibit 6, [7],  [27], [39],  [49], [51])
  1. [61]
    Why a Step 3 warning was considered appropriate: Mr Lyons described a Step 3 warning as a "serious disciplinary step" in the Council's Counselling and Disciplinary Procedure.  It is "effectively a final warning and is not issued lightly."  Step 4 is termination of employment.
  1. [62]
    His evidence was that the Council takes breaches of the Code of Conduct seriously.  It has set standards as to what kind of behaviour is not prepared to tolerate as an organisation.  According to Mr Lyons:

"the Council cannot condone the kind of behaviour exhibited by Mr Hegarty in the incidents which were the subject of the Step 3 warning.  His behaviour was unprofessional and in clear breach of the Council's expectations as set out in the code of conduct."  (Exhibit 6, [19])

 The legal principles that guide the Commission in this case

  1. [63]
    Subject to one qualification, the parties agree that the role of the Commission is not to make a fresh decision in relation to whether:
  1. (a)
    the relevant allegations were substantiated; and
  1. (b)
    the Stage 3 warning was warranted,

but to decide whether the decision made by Mr Lyons in relation to both matters was reasonable.  Some authorities were cited in support of that proposition.

  1. [64]
    The Council relied on statements in decisions to the effect that:
  1. (a)
    the task of the Commission is to assess whether it should intervene to protect the Applicant against the decision which is fundamentally one for the employer to make, and ordinarily intervention will be justified only where the employer has abused the right to dismiss;[18]
  1. (b)
    the Commission must ask itself whether there was a fair and reasonable explanation for the disciplinary decision which would be considered by fair-minded persons as being a totally legitimate reason for the action taken;[19]
  1. (c)
    the Commission is not placing itself in the position of the employer, but is reviewing the situation on an objective basis and endeavouring to ascertain whether the action of the employer has so transgressed standards of industrial play that the action simply cannot be allowed to stand (remembering that the notion of industrial fair play does not involve a mere one-sided consideration but there must be an overview of the situation of both parties to the contract of employment);[20]
  1. (d)
    ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting discipline has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission;[21]
  1. (e)
    in assessing the adequacy of an investigation and the reasonableness of the conclusion, one must always bear in mind that employers make their decisions in a practical way in an industrial environment, without the aid of coercive powers of investigation and without the advantage of argument carefully put.[22]
  1. [65]
    On the basis of the authorities cited, the Council submits that, so long as a reasonable employer with that material and the criteria for a Stage 3 warning was satisfied that a Stage 3 warning was appropriate, then the Commission should uphold that decision.[23]
  1. [66]
    Mr Hegarty did not dispute that is the legal position in what might be described as usual circumstances.  However, in one significant respect, the circumstances in which these issues arise are not usual.  Given that:
  1. (a)
    this case was argued on the basis that the Commission had to assess whether the allegations could reasonable have been substantiated by reference to the information in the redacted report and attached statements; and
  1. (b)
    Mr Lyons expressly included Mr Hegarty's history of behaviour in the workplace as a basis for his decisions in relation to both the allegations and the penalty,

 the Commission cannot simply assess whether his decision was reasonable.

Was the finding that the allegations were substantiated open to the decision maker?

  1. [67]
    I have read the redacted version of the Investigation Report dated 19 May 2015 prepared by Ms de Lucey, and the redacted witness statements and other documents attached to it.  The Report refers to a list of documents reviewed by the investigator from named persons (Ms Cole, Mr Worth, Ms James, Ms Loukaras and Mr Hegarty) and from eight unnamed witnesses and one unnamed complainant. 
  1. [68]
    When the written statements are compared there is an overall consistency in the sequence and description of the events on 5 and 18 February 2014, although there are variations as to such things as Mr Hegarty's demeanour and the volume of his voice.  Mr Hegarty seemed to accept that different people have different views as to his conduct, and that the Council would have to weigh competing accounts of his behaviour in relation to the incidents.[24]
  1. [69]
    Mr Lyons confirmed that before making a decision to issue a Step 3 warning he read the Investigation Report and the associated documentation unabridged.[25]  He said that no incidents other than those in February 2014, about which the allegations were made, were included within the Investigation Report.[26]
  1. [70]
    I am satisfied that:
  1. (a)
    the relevant material was considered;
  1. (b)
    where aspects of the initial allegations were not substantiated by that material they were not included in the list of allegations said to be substantiated; and
  1. (c)
    based on that material alone, it was open to the relevant officer of the Council who had to make a decision about the allegations to be satisfied that the remaining allegations had been substantiated.

Was the Step 3 warning a reasonable penalty for the substantiated allegations?

  1. [71]
    The final remedy sought by Mr Hegarty was, in effect, the substitution of a Step 2 warning for the Step 3 warning issued on 21 August 2015.  According to Mr O'Donnell, Mr Hegarty accepts that he is not blameless and that a Step 1 warning would not be appropriate.  In his submission, however, a Step 3 warning is disproportionate to Mr Hegarty's behaviour.
  1. [72]
    In assessing whether the Step 3 warning should be set aside or varied in accordance with the relevant legal principles, it is appropriate to consider the objectives and steps of the disciplinary procedure set out in the relevant certified agreement, the Council's assessment of the significance of Mr Hegarty's alleged behaviour, the indications of a possible penalty given to Mr Hegarty before the Investigation Report was prepared, and whether the Stage 3 warning was defensible having regard only to Mr Hegarty's conduct in relation to the incidents in February 2014.
  1. [73]
    The disciplinary procedure: The counselling and disciplinary procedure is set out in clause 22 of the Townsville City Council (Queensland Local Government Officers) Certified Agreement 2012.
  1. [74]
    The objectives of that procedure include:
  1. (a)
    enabling appropriate action to be taken to rectify unsatisfactory work performance or behaviour; and
  1. (b)
    providing positive assistance to employees in understanding and meeting standards of behaviour and performance required by Council (clause 22.1).
  1. [75]
    The procedure does not apply to behaviour which would justify instant dismissal, and should only be enacted when the performance or behaviour of an individual becomes a matter of concern (clauses 22.2 and 22.3).
  1. [76]
    The procedure potentially involves four steps.  The First Step involves the employee's immediate supervisor speaking to them on the first occasion where poor performance or behaviour becomes a matter of concern.  The Fourth Step may be dismissal.  The Second and Third steps are the focus of this part of the current proceedings.
  1. [77]
    The Second Step is taken if "poor performance or conduct persists, or is of such nature that an informal warning would be inappropriate."  In such circumstances, the employee should be served with a written notice advising that they are to attend a Second Step disciplinary meeting regarding their work performance and/or behaviour, whichever is appropriate.  Before that meeting, the employee will be provided with written details of the allegations to be addressed to allow for adequate preparation to occur for that meeting.  The employee may request to have an authorised union official or another person present during the meeting.  After the meeting the employee shall be forwarded a written notice summarising the particular performance failings or behaviour discussed and the "necessary corrective measures that need to be taken to rectify the areas of concerns raised at the meeting."
  1. [78]
    The Third Step is taken if "poor performance or conduct persists, or is of such a nature that a First or Second Step warning would be inappropriate."  In such circumstances, the employee should be served with a written notice advising that they are to attend a Third Step disciplinary meeting regarding their work performance and/or behaviour, whichever is appropriate.  The immediate supervisor and their supervisor should jointly interview the employee concerned stating that the failure to effect an improvement in performance or behaviour may lead to dismissal.  This should also be recorded in a written notice given to the employee.  The employee may request to have an authorised union official or another person present during the meeting.  After the meeting the employee shall be forwarded a written notice summarising the particular work performance failings or behaviour discussed and the "necessary corrective measures that need to be taken to rectify the areas of concerns raised at the meeting."
  1. [79]
    It appears from reading the procedure that, apart from some variation in the procedural requirements relating to the Second Step and the Third Step there is much in common in both the nature of the behaviour that could give rise to a Second Step or Third Step process, and relatively little difference in the procedures that apply to each step.
  1. [80]
    The Council's assessment of the significance of Mr Hegarty's behaviour: In his affidavit, Mr Lyons referred to Mr Hegarty's breach of the confidentiality requirement in respect of the investigation, and Mr Hegarty's "aggressive and intimidatory behaviour in both the Car Park Incident and the Office Outburst incident" (aspects of which he particularised) and wrote that both of those incidents were examples of Mr Hegarty's "continuing behavioural issues in the workplace.  …  This kind of behaviour if not dealt with in a serious manner can escalate further and I was keen to ensure that did not happen again."  (Exhibit 6, [48] to [50])
  1. [81]
    Much of the evidence concerned the apparent breach of the confidentiality requirement set out in Mr Smith's letter dated 18 February 2014 and subsequent letters from the Council. 
  1. [82]
    Ms de Lucey referred to 12 statements from people in relation to Mr Hegarty telling people in the office that he had resigned.  Some say they overheard him, and others said he spoke to them directly.[27]  In that context, she characterised the statement "You don't have to worry about the grievance anymore" as referring to the disciplinary process.[28]  According to Mr Hegarty, the open office area was "full of executive manager, manager, couple of coordinator and a list of other supervisors."  There were up to 20 people in the area.  The office can be quite loud.  Toward the end of the day, there would have been some staff members working there.  None of them came to him and made a comment about anything he was saying or the way he was behaving.[29]
  1. [83]
    However, it is clear from Mr Lyons' evidence that the concern about Mr Hegarty breaching confidentiality is based primarily on the Facebook messages rather than any brief conversations that Mr Hegarty had with one or more co-workers on 18 February 2014, after he had received the letter from Mr Smith.
  1. [84]
    Mr Lyons expressed concern that, although Mr Hegarty had been informed in Mr Smith's letter that the matter was entirely confidential and he should not be talking to any of his co-workers about it, the following day Mr Hegarty contacted a co-worker and discussed it with her on Facebook.  He failed to acknowledge this Facebook conversation in his responses.  (Exhibit 6, [48])
  1. [85]
    Mr Hegarty admits to contacting Ms Loukaras, although in his letter of 13 August 2015 he wrote that it was "Months later" when he approached her "because at or about that time I had lodged an application for workers' compensation … and I needed a witness statement from her."  He continued:

"In order to place Joanna Loukaras' statement in context I needed to give her a brief outline of events so she could properly prepare a statement for my workers' compensation claim, which she did.

At that time, because I did not have Joanna Loukaras' telephone number, I contacted her via Facebook and this contact was a one on one secure conversation and was not open to members of the public as my communication with her was by way of private message.

The reason I did not have Joanna Loukaras' telephone number was that I had left it at my work station and by this time I was unable to gain access to my work area."

  1. [86]
    As noted earlier, Ms Loukaras gave statements about Facebook messages from Mr Hegarty on 19 February 2014 and 19 March 2014.  The wording used in the Facebook post on 19 February 2014 quoted by Ms Loukaras reflects the language used in the letter to Mr Hegarty.  It is clearly in breach of the confidentiality restriction imposed on Mr Hegarty.
  1. [87]
    Mr Hegarty's direct oral evidence was that he breached the confidentiality with Ms Loukaras because she was a witness to the incident the car park.  He considered that the Facebook conversation was not risky because, as far as he was aware, it was a secured line.[30]  He stated that, had he not contacted Ms Loukaras, the Council would not have known that she was a witness and that he had a "witness on my side."[31]  Mr Hegarty also stated that some discipline matters about other employees had been revealed to him, and he suggested that it "seems to be the norm within council that disciplinary matters are discussed."[32]  He accepted, however, that there was a clear requirement for confidentiality.[33]
  1. [88]
    Rather than deny mentioning the disciplinary proceedings with colleagues, Mr Hegarty sought to explain or justify what he did.  In his statement dated 22 September 2014, Mr Hegarty responded to the allegation that he did not maintain confidentiality in relation to an investigation of alleged misconduct against him.  He wrote:

"Any discussion that I had with my work colleagues in relation to the issue on 5th February was solely done in an attempt to gather witness statements in order to defend myself against the allegations of misconduct arising from in the car park discussion.  …  I maintain that I had every right to approach people who may have witnessed the event, to ask them if they were willing to provide a statement outlining what they had seen and heard.  I was merely asking if they had seen the event and if they were willing to commit to paper what they actually had seen or heard."

  1. [89]
    Ms de Lucey gave evidence that confidentiality in an investigation is important to ensure that the information collected by the investigating officers is as correct and accurate as possible.  Any witness statements need to be taken under particular conditions.  It is not helpful to have people who have an allegation put to them asking questions of others.  That "muddies the waters," and "often can be intimidating to the witnesses," potentially stopping them from being willing to come forward.  Witnesses also sign a statement that reminds them that the matter is confidential and that they are not to talk about it with anyone else.[34]
  1. [90]
    According to Ms de Lucey, other employees who have not maintained confidentiality have been treated in the same way as Mr Hegarty.[35]
  1. [91]
    When making submissions on behalf of the Council, Mr Healey said that the Facebook matters were "far more serious types of breaches" of confidentiality than what happened in the office.  However, in conjunction, the evidence around the confidentially breaches in total "raises a very serious issue."[36]
  1. [92]
    Previous indications of possible penalty: When considering disciplinary penalty imposed by Mr Lyons, it is useful to recall previous correspondence in relation to fewer incidents and the advice given to Mr Hegarty on previous occasions about the possible penalty that might be imposed.  As noted earlier, in his letter dated 18 February 2014, Mr Smith advised Mr Hegarty that:
  1. (a)
    if the allegations about the Car Park Incident on 5 February 2014 were found to be true, they would give grounds for disciplinary action to be taken against Mr Hegarty; and
  1. (b)
    Mr Smith was considering recommending a Step 3 final warning should the allegations be substantiated.

That letter indicates the seriousness with which the Council regarded Mr Hegarty's behaviour at that stage.  Although some aspects of Mr Hegarty's behaviour on that occasion were not ultimately substantiated, there were two other subsequent incidents that were considered together with the Car Park Incident when the decision to discipline Mr Hegarty was made.

  1. [93]
    As noted earlier, Mr Smith signed a letter dated 28 August 2014 to Mr Hegarty with an additional allegation in relation to Mr Hegarty's alleged behaviour on 18 February 2014.  Mr Smith advised Mr Hegarty that the Council was considering action up to and including dismissal should those allegations be substantiated. 
  1. [94]
    Those letters were signed by a person other than Mr Lyons and preceded the Investigation Report.  They indicate the degree of concern that Council held in relation to Mr Hegarty's alleged behaviour, in particular that a Step 3 warning might be appropriate.
  1. [95]
    Whether Step 3 warning was defensible by reference to Mr Hegarty's behaviour in relation to incidents in February 2014: As noted earlier, the issue before the Commission is not whether Mr Lyons acted appropriately in issuing a Step 3 warning in light of all the circumstances that he took into account, but whether Mr Lyons could reasonably have issued a Step 3 warning if he had regard only to Mr Hegarty's behaviour in relation to the incidents in February 2014.
  1. [96]
    In his affidavit, Mr Lyons stated that he issued Mr Hegarty with a Step 3 warning "on the basis of the following:"
  1. (a)
    an altercation which took place in the Council's car park on 5 February 2014;
  1. (b)
    an outburst of temper by Mr Hegarty in the office after being issued with a show cause letter on 18 February 2014 in respect of the Car Park Incident; and
  1. (c)
    a Facebook conversation with another Council employee about the investigation into the above incidents, and which Mr Hegarty knew to be confidential.  (Exhibit 6, [12])
  1. [97]
    Toward the end of his affidavit and having set out his understanding in relation to each of those matters, Mr Lyons stated:

"Mr Hegarty's conduct in these incidents alone justified the issuing of a Step 2 or Step 3 warning.  However these incidents viewed in conjunction with Mr Hegarty's history of behaviour in the workplace, and also in light of his continuing lack of remorse in respect of the incidents left me with little hesitation in moving to a Step 3 warning."  (Exhibit 6, [51])

  1. [98]
    In his final submissions on behalf of the Council, Mr Healey submitted that that the Commission should only have regard to the material in respect of the allegations that were substantiated in the Step 3 warning letter issued to the Applicant, namely those matters in the redacted Investigation Report.  In his submission, that would be consistent with the evidence of Mr Lyons that, when viewed alone, a Step 2 or Step 3 warning was justified.[37]
  1. [99]
    The Council maintained that the Step 3 warning was appropriate in all the circumstances.  When taken together, the substantiated allegations (i.e., Mr Hegarty's conduct in both the Car Park Incident and the Office Outburst incident) and the breach of confidentiality constitute a serious breach of the Code of Conduct.  For that reason it is appropriate to issue a Step 3 warning.  Mr Healey further submitted that:

"the nature of the incidents and the confidentiality issues are such that they must not be repeated.  For that message to be received, if I could put it that way, it is felt - obviously the decision maker felt that the strongest warning available was necessary.  He's got a duty of care to his staff, not just Mr Hegarty but other staff, many staff, to provide a safe and healthy workplace.  If he doesn't take action, and the right type of action when he needs to, to ensure that, he will be found wanting."[38]

  1. [100]
    Mr Lyons also gave oral evidence that Mr Hegarty's background at the Council supported the basis of his decision.  The incidents that were the subject of the allegations stood alone, but there was a replication of behaviour that occurred previously that "reinforced my belief that the action needed to be taken."[39]  Although he was clearly considering those incidents in a broader behavioural context, Mr Lyons gave evidence that those incidents alone would have justified a Step 2 or Step 3 warning.[40]
  1. [101]
    As Mr Healey correctly observed, the decision-maker could not have a completely clean mind as to what had happened in the past.  That would be unrealistic.[41]
  1. [102]
    I am satisfied, however, that having regard only to Mr Hegarty's behaviour on 5 and 18 February 2014 and his Facebook communications with Ms Loukaras, it was reasonably open to the Council to issue a Stage 3 warning to Mr Hegarty.
  1. [103]
    Two other matters warrant comment.  First, it is appropriate to note that, given the apparent significance of Mr Hegarty's employment history to the disciplinary process and the penalty imposed, Mr Hegarty stressed that (apart from one incident between him and another staff member in early 2012) assessments of his performance in the workplace had shown that he exceeded expectations and was a "very solid performer."  He was nominated for, and presented with, an excellence award.[42]
  1. [104]
    Ms de Lucey gave evidence that the performance appraisal system is based on organised targets, and if a person meets those targets they are given quite a good rating.  If Mr Hegarty was given technical performance targets, it was highly likely that he received a very good rating because "he has been considered very good technically as a local laws officer."[43]  She agreed that a performance appraisal would be an appropriate forum for management to discuss any behavioural issues, but suggested that management would try to address conduct as and when it happens.[44]
  1. [105]
    According to Mr Lyons, the annual performance review would not necessarily be the major forum in which behavioural issues could be raised.  Annual performance reviews concern achievement plans.  He agreed that someone achieving a staff excellence award would indicate that the employee is doing a good job.[45]
  1. [106]
    In his submissions on behalf of the Council, Mr Healey stated that Mr Hegarty's performance in a technical sense is of a very good, if not excellent, standard.  The Council did not have an issue in that regard.  Rather, it has concerns about Mr Hegarty's conduct and his interaction with his fellow workers.[46]
  1. [107]
    In light of the distinction between technical proficiency and workplace behaviour, I am satisfied that the appraisal of Mr Hegarty's work performance before 2014 does not mitigate the penalty he received.
  1. [108]
    Second, when asked why he should not have received a Step 3 warning, Mr Hegarty referred to the Local Laws meeting on 5 February 2014, the contents of which were supposed to be kept private and confidential.  He said that someone at that meeting had told Ms Cole about it, "enlarged" on what was said "to incite this whole process."  Ms Cole had contacted Ms McClintock before Ms Cole sent her an email to Mr Hegarty.  Ms McClintock should have stepped in at that stage and spoken to Ms Cole and Mr Hegarty in mediation.  Mr Hegarty had an "amicable" conversation with Ms Cole and walked away, but Mr Worth followed him and re-engaged him. 
  1. [109]
    Mr Hegarty, as a supervisor, was aware of previous serious incidents within that department that were treated less seriously.[47]  Based on his experiences a supervisor and what he was told to do by management in relation to decisions on previous incidents, Mr Hegarty suggested that a Step 1 or Step 2 warning "at most" would have been appropriate.  He said that he was not aware of the Council's process in relation to disciplinary matters.  He said that there needed to be consistency in decisions, and that he believed there was not consistency.[48]
  1. [110]
    I am not convinced that those statements mitigate the penalty imposed on Mr Hegarty.
  1. [111]
    Consideration and conclusion: It is clear from the material before me, and I find, that:
  1. (a)
    there is relatively little difference between the procedure to be followed in relation to a Step 2 and a Step 3 warning;
  1. (b)
    the significant difference between a Step 2 warning and a Step 3 warning is that a Step 2 warning is given when the poor performance or conduct is of such a nature that an informal warning would be inappropriate, whereas a Step 3 warning is given in circumstances where dismissal is not warranted but a Step 1 or Step 2 warning would be inappropriate;
  1. (c)
    Mr Lyons is an experienced manager;
  1. (d)
    Mr Lyons understood the significance for Mr Hegarty of issuing a Step 3 warning, and did not take such a serious disciplinary step lightly;
  1. (e)
    Mr Lyons considered that, the allegations in relation to those three incidents having been substantiated, Mr Hegarty's behaviour on those occasions was sufficient to justify him issuing a Step 3 warning.
  1. [112]
    Although it may not be possible to disaggregate entirely aspects of Mr Hegarty's other behaviour in the workplace from consideration of the three incidents relied on by Mr Lyons, I am satisfied that:
  1. (a)
    Mr Lyons could and would have issued the Step 3 warning based on his assessment of Mr Hegarty's behaviour in relation only to those three incidents;
  1. (b)
    it would have been reasonable for Mr Lyons to have issued a Step 3 warning in those circumstances.
  1. [113]
    I am confirmed in that conclusion by the indications in correspondence from Mr Smith to Mr Hegarty before the Investigation Report that a Step 3 warning was being considered for behaviour that constituted only a part of the behaviour considered by Mr Lyons.
  1. [114]
    For the reasons set out above, I am satisfied that the Council:
  1. (a)
    conducted as full and extensive an investigation into the relevant matters surrounding the alleged misconduct as was reasonable in the circumstances;
  1. (b)
    gave Mr Hegarty every reasonable opportunity and sufficient time to answer all the allegations and respond to them;
  1. (c)
    having done that, believed and had reasonable grounds for believing on the information available to it that the allegations against Mr Hegarty were substantiated; and
  1. (d)
    was justified in issuing a Step 3 warning to Mr Hegarty.
  1. [115]
    Accordingly, the application must be dismissed.

Footnotes

[1] Hegarty v Townsville City Council [2015] QIRC 165.

[2] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 16.

[3] See Affidavit of Kara de Lucey (Exhibit 3) at [80].

[4] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 20-21.

[5] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 18-19.

[6] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 78.

[7] Ms Cole is married and her name is Kym McGovern.  She was referred to by both names during the hearing.  To avoid any ambiguity about who is being referred to in these reasons, she is nominated as Ms Cole.

[8] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 33.

[9] Mr Hegarty had been taking anti-depressants for stress and anxiety since about September-October 2013.  (Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 39-40, 85).

[10] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 46.

[11] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 93.

[12] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 6.

[13] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 5-6.

[14] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 7-8, 11.

[15] The Townsville City Council (Queensland Local Government Officers) Certified Agreement 2012 provides at clause 22.5 Documentation: "All documentation associated with the outcome of a disciplinary action taken against an employee in accordance with this Disciplinary Procedure shall not be used or held on the employee's personnel file after a period of 12 months following the date of the last relevant nemo issued to the employee concerned over the particular incident which initiated the disciplinary action."

[16] Particulars of the allegations about the car park incident were provided in letters on 18 February 2014 and 28 August 2014; and particulars of his outburst in the office on 18 February 2014 were provided to him by letter of 28 August 2014.

[17] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 79-81, 87.

[18] Stark v P & O Resorts (Heron Island) AND Simpson v P & O Resorts (Heron Island) [1993] 144 QGIG 914, 915.

[19] Bi-Lo Pty Ltd v Hooper AND Hooper v Bi-Lo Pty Ltd (1992) 59 SAIR 342,346; 53 IR 224 (Stanley P, Cawthorne CP, Stevens C) quoting Hallett Brick Industries Ltd v Kenniwell (1976) 43 SAIR 477, 488 (Olsson J).

[20] Bi-Lo Pty Ltd v Hooper AND Hooper v Bi-Lo Pty Ltd (1992) 59 SAIR 342, 346; 53 IR 224 (Stanley P, Cawthorne CP, Stevens C) quoting Hallett Brick Industries Ltd v Kenniwell (1976) 43 SAIR 477, 488 (Olsson J).

[21] Stark v P&O Resorts (Heron Island) AND Simpson v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 915, citing Bi-Lo Pty Ltd v Hooper AND Hooper v Bi-Lo Pty Ltd (1992) 59 SAIR 342, 349-354; 53 IR 224.

[22] Stark v P & O Resorts (Heron Island) AND Simpson v P & O Resorts (Heron Island) (1993) 144 QGIG 914, 915; quoted in Raymond Harris AND Gold Coast City Council (D/2010/121) - Decision [255] (Thompson C).

[23] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 89-90.

[24] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 69-70.

[25] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 48-49.

[26] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 62.

[27] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 39, 41.

[28] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 41.

[29] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 35, 88-89.

[30] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 37-38.

[31] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 78.

[32] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 79.

[33] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 80.

[34] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 93.

[35] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 93.

[36] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 81.

[37] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 78.

[38] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 84.

[39] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 62-63.

[40] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 63.

[41] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 10.

[42] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 47.

[43] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 8.

[44] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 9.

[45] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 65-66.

[46] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 30 October 2015) 90.

[47] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 81-82.

[48] Transcript of Proceedings, Hegarty v Townsville City Council (Queensland Industrial Relations Commission, B/2015/29, Industrial Commissioner Neate, 29 October 2015) 82.

Close

Editorial Notes

  • Published Case Name:

    Hegarty v Townsville City Council

  • Shortened Case Name:

    Hegarty v Townsville City Council

  • MNC:

    [2015] QIRC 208

  • Court:

    QIRC

  • Judge(s):

    Member Neate IC

  • Date:

    03 Dec 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
Bi-Lo Pty Ltd v Hooper AND Hooper v Bi-Lo Pty Ltd (1992) 53 IR 224
4 citations
Jump To
Cite 1 - (1992) 53 IR 224
Cite 2 - (1992) 53 IR 224
Cite 3 - (1992) 53 IR 224
Cite 4 - (1992) 53 IR 224
Hallett Brick Industries Ltd v Kennewell (1976) 43 SAIR Pt 1 477
1 citation
Jump To
Cite 1 - (1976) 43 SAIR Pt 1 477
Hallett Brick Industries Ltd v Kenniwell (1976) 43 SAIR 477
2 citations
Jump To
Cite 1 - (1976) 43 SAIR 477
Cite 2 - (1976) 43 SAIR 477
Harris v Gold Coast City Council [2012] QIRC 5
2 citations
Jump To
Cite 1 - [2012] QIRC 5
Cite 2 - [2012] QIRC 5
Hegarty v Townsville City Council [2015] QIRC 165
2 citations
Jump To
Cite 1 - [2015] QIRC 165
Cite 2 - [2015] QIRC 165
Hooper v Bi - Lo Pty Ltd (1992) 59 SAIR 342
4 citations
Jump To
Cite 1 - (1992) 59 SAIR 342
Cite 2 - (1992) 59 SAIR 342
Cite 3 - (1992) 59 SAIR 342
Cite 4 - (1992) 59 SAIR 342
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
4 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
Cite 3 - (1993) 144 QGIG 914
Cite 4 - (1993) 144 QGIG 914

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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