Parer v Queensland (No 4)[2016] QIRC 123

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision

1. [1]
   Siobhan Maree Parer has been employed in Crown Law for 14 years and, from July 2014, had been acting in the position of Assistant Crown Solicitor (ACS) supervising a team of approximately 12 lawyers.  On 12 June 2015, she and a senior lawyer in her team, Jeremy Weston, were suspended from their employment.  A disciplinary process commenced on 4 September 2015 with the first show cause notice being issued inviting Ms Parer to respond to nine allegations, with a number of sub-allegations.  A second show cause letter was subsequently issued.  For reasons given in the letter disciplinary findings were made but not all of the sub-allegations against Ms Parer were substantiated.  The penalty of termination of employment was proposed.  Ms Parer has instituted proceedings alleging that the suspension, the first show cause letter, the decision to find her liable for disciplinary action and the "threat" of termination were prohibited conduct under the Industrial Relations Act 1999 and seeks civil remedies.

1. HISTORY OF THE APPLICATION

2. [2]
   This application (and related applications) have been intensively litigated resulting in eight decisions including this one from the Commission as constituted before and during the hearing of the substantive application.  In addition, Deputy President Kaufman determined a challenge by Ms Parer and Mr Weston to the Respondent's claim of legal professional privilege over a number of documents.  That decision is recorded in the transcript of 14 July 2016.

3. [3]
   Applications B/2015/44 by Jeremy Weston and B/2015/45 by Ms Parer were filed pursuant to s 120 of the IR Act on 4 November 2015.  A conference in each of the matters before Vice President Linnane was held on 18 November 2015 and consent orders were issued including dates for their responses to the show cause process.  On 16 December 2015, the day before Mr Weston was due to provide his response, he and Ms Parer filed applications for declarations:  B/2015/51 and B/2015/52.

4. [4]
   On 7 March 2016, the Commission heard the Respondent's application seeking to dismiss the two applications for declarations as well as the Applicants' applications for orders about representation and joinder.  A Decision^[1] released on 1 April 2016 granted the application to dismiss Ms Parer's declarations application B/2015/52.  The application to dismiss Mr Weston's declarations application was refused.  The joinder application was granted to the extent possible and the application for Ms Black and Crown Law to cease to act for the Respondent was granted.

5. [5]
   Both the Commission's decision to dismiss Ms Parer's declarations application and to disqualify Ms Black and Crown Law from acting for the Respondent were appealed.  The Industrial Court issued a stay Order on the latter decision.^[2]  Both appeals were subsequently discontinued.

6. [6]
   On 18 April 2016, Ms Parer and Mr Weston each filed an application for an interim injunction seeking to restrain the Respondent from taking any action to continue the show cause process until such time as the substantive applications were heard and determined.  The applications were heard on 2 June 2016.  As a result of those proceedings and subsequent discussions the Respondent gave an undertaking that the show cause process would not be progressed and no changes would be made to the mode of suspension on the understanding that the hearing of the substantive applications could be concluded in the week of 12 August 2016.  In the event the matters could be so programmed the parties agreed it would not be necessary for the Commission to issue the decision in the interim injunction application.  The hearing was scheduled accordingly and concluded within this timeframe.

7. [7]
   On 27 April 2016 the Respondent made an application for the Commission to issue an Order under s 679 of the Act suppressing the evidence filed and the transcripts in matter numbers B/2015/44, B/2015/45, B/2015/51 and B/2015/52.  The application was heard on 27 April 2016 and a Decision^[3] was released on 17 May 2016.  The application was dismissed.  The Commission issued a subsequent Decision^[4] on 20 May 2016 with Orders directed towards ensuring that certain information was not made publicly available.

8. [8]
   On 10 June 2016 Ms Parer and Mr Weston applied for Disclosure Orders in matters B/2015/44, B/2015/45 and B/2015/51.  The matter was heard on 27 June 2016 and the parties were advised the following day of the rulings made by the Commission.  A Decision^[5] was released on 25 July 2016 incorporating the Orders for the Respondent to disclose to the Applicants certain categories of documents.

9. [9]
   A conciliation conference in relation to all three applications was chaired by Deputy President Bloomfield on 6 July 2016.  It failed to resolve the applications.

10. [10]
    Before the substantive matter was due to commence on Monday 18 July 2016, Ms Parer applied to amend the particulars of the application.  The Respondent objected.  On 20 July 2016 the Commission issued a Decision^[6] refusing the application.

11. [11]
    At the hearing on 19 July 2016, Senior Counsel for Ms Parer and Mr Weston advised that the applications by Mr Weston, B/2015/44 and B/2015/51, were in the process of being resolved.

12. [12]
    During the course of the hearing, the Commission was required to determine an application to admit documents.  The Commission refused the application.^[7]

2. THE APPLICATION

13. [13]
    As mentioned, the initiating application for a remedy under s 120 of the IR Act was filed on 4 November 2015.  A number of amended applications were subsequently filed.  The application being considered by the Commission is the amended application filed on 10 June 2016.  For ease, it will be referred to as "the application".  Ms Parer's legal representatives confirmed in writing that this application is relied on for the purposes of the Commission's decision.

14. [14]
    Ms Parer's application is as follows (particulars omitted):

15. [15]
    The Applicant also seeks a range of orders directed towards preventing her from continuing to be injured in her employment as a result of the conduct taken, reinstating her to the position from which she was suspended and payment of monetary sums in compensation and as a civil penalty.  The orders sought will be set out and addressed later in this decision should the Applicant be successful in obtaining a finding from the Commission that the Respondent engaged in prohibited conduct for a prohibited reason.

RELEVANT LEGISLATION

16. [16]
    The proceedings were brought under s 120 of the IR Act - the remedies provision of the IR Act which is enlivened if prohibited conduct has been engaged in for a prohibited reason.  The meaning of "prohibited reason" and "prohibited conduct" is found at ss 104 and 105 of the IR Act.  The onus of proof requirements are prescribed by s 122A.

17. [17]
    All of these provisions are contained within Chapter 4 Freedom of Association.  However, the purpose of this Chapter is to treat unionists and non-unionists alike.^[8]  The sections relied on for this application are set out below:

18. [18]
    The Applicant:  At the time the alleged prohibited conduct of suspension occurred, Ms Parer was acting in the position of ACS managing the Government Insurance and Risk team (GR2).  She returned to her substantive position as a Senior Principal Lawyer when her 12 month contract as acting ACS concluded.

19. [19]
    Ms Parer gave evidence that she had had a long and successful career at Crown Law, had been regularly promoted and had won an award for client service as well as receiving letters of appreciation from the Crown Solicitor.  That she had been a well‑regarded lawyer was supported by the evidence of Sherman Oh and was not put in issue by the Respondent.

20. [20]
    Jeremy Weston was a Senior Lawyer in GR2 at the time the alleged prohibited conduct occurred.  Much of the factual context in relation to Ms Parer also concerns Mr Weston. He was suspended at the same time as Ms Parer and was also subject to a disciplinary process.  A number of the allegations against Ms Parer concerned the performance of Mr Weston.  For these reasons, it is not possible in this decision to isolate the events to Ms Parer only; of necessity, Mr Weston is drawn into the discussion.

21. [21]
    The Applicant's witnesses:  In addition to her own evidence, Ms Parer called the following witnesses:

•  John Heath, Forensic Document Examiner;
•  Sherman Oh, Principal Legal Officer; Crown Law; and
•  Dr Gary Larder, Consultant Psychiatrist.

22. [22]
    The Respondent:  The Respondent is the State of Queensland represented through the Department of Justice and Attorney-General (DJAG).

23. [23]
    Crown Law is an operational unit of DJAG.  The role of Crown Law, or more precisely, certain officers of Crown Law, was the focus of much attention by Ms Parer.  It is important to note that while the Director-General, the Crown Solicitor, and Jackie Hamilton, Assistant Crown Solicitor were mentioned in the particulars of Ms Parer's application as "persons in the entity involved" in the alleged prohibited conduct, it is only Mark Rallings and Kerrith McDermott who are nominated by Ms Parer as having engaged in prohibited conduct.  Mr Rallings and Ms McDermott are the Commissioner and the Deputy Commissioner respectively of Queensland Corrective Services (QCS), which sits within DJAG.

24. [24]
    At the scheduled commencement of the substantive proceedings, Ms Parer applied to amend the application by expanding the nominated Crown Law officers in the particulars.  For reasons given in Parer v State of Queensland (Department of Justice and Attorney-General)^[9] that application was refused.  In essence the Commission decided it was far too late to make such significant changes when Ms Parer had always intended to include them.

25. [25]
    The Respondent's witnesses:

• David Mackie, Director-General, DJAG;
• Joanne Sorbello, Barrister-at-Law;
• Sheridan Cubby, Executive Manager, Organisational Development (OD) Team and QA, Crown Law;
• Stuart Woods, Director-Human Resources, DJAG;
• Mark Rallings, Commissioner, QCS;
• Brendan Read, Director, KordaMentha Forensic; and
• Kerrith McDermott, Deputy Commissioner, QCS.

4. OVERVIEW

26. [26]
    Preceding Events:  Ms Parer and Mr Weston worked in the GR2 team.  This team is responsible for personal injuries claims that have been made against the State.  The evidence discloses that amongst other things, the solicitors in this team have responsibility to ensure that timelines set by the Personal Injuries Proceedings Act 2002 (PIPA) and the courts are met; to take instructions from their clients and to act on those; to provide quality, timely advice to clients and to correspond with claimants' solicitors in a timely and professional manner.  Crown Law has one client in personal injuries litigation which provides most of its work, the Queensland Government Insurance Fund (QGIF).

27. [27]
    On 18 February 2015, Ms Parer attended a bi-monthly meeting of Crown Law and QGIF managers.  QGIF had proposed that once a claim was finalised it would have a Claims Officer complete a survey assessing the performance of the Crown Law legal officer and proposed it also operate in reverse.  Helen Freemantle, a Deputy Crown Solicitor and Ms Parer's manager, requested that the survey be provided to Assistant Crown Solicitors rather than lawyers and said words to the effect of, "because someone like Jeremy Weston would say something stupid and ridiculous that would have to be fixed up later on."

28. [28]
    Being concerned about Ms Freemantle's comments, Ms Parer raised them with a senior legal officer of Crown Law after the meeting.  As a result of that discussion, Ms Parer's evidence is that she "would wait and see what effect it had on Mr Weston before reporting it further."  On 13 March, Ms Parer met with Sheridan Cubby, Executive Manager, OD Team & QA, Crown Law to discuss a number of concerns she had about Ms Freemantle including issues of natural justice, use of staff resources and her comments about Mr Weston.  Ms Cubby suggested that Ms Parer raise her concerns directly with Ms Freemantle.

29. [29]
    On 16 March, before Ms Parer had the opportunity to raise her issues with Ms Freemantle, as she was on leave at that time, the QGIF Manager Claims sent an email to Ms Parer expressing concern about Mr Weston's work on a particular file, the M# file,^[10] and requesting advice by the end of the week addressing a number of matters.  Ms Parer responded on the same day advising that Mr Weston would forward the required advice in the specified time frame.

30. [30]
    Bill Dwyer, Director, Claims, QGIF, was disappointed with Ms Parer's response.  On 19 March he telephoned Ms Freemantle at home (as she was still on leave at the time) to express his concerns about Mr Weston's performance on the M# file.  He said he would be sending an email identifying QGIF's concerns about this.  Mr Dwyer's email of the same day not only addressed this file but 12 other files as well.  The evidence is unclear as to whether Ms Parer received a copy of Mr Dwyer's email but it is clear from her own evidence^[11] that Ms Freemantle made her aware of the review.

31. [31]
    On 20 March, Ms Parer informed Mr Weston of the comment made by Ms Freemantle on 18 February.

32. [32]
    Ms Parer met with Ms Freemantle on 23 March and raised concerns about her comment at the meeting with QGIF on 18 February.  In particular, Ms Parer expressed the view that the comment had impacted on the opinion QGIF had of Mr Weston and that it had prompted QGIF to express concern about the conduct of a particular file for which he had responsibility.  According to Ms Parer (as Ms Freemantle did not give evidence), Ms Freemantle denied QGIF's opinion was related to her comment.  Ms Parer said Ms Freemantle appeared very angry during the discussion.

33. [33]
    About one hour later Ms Freemantle contacted Ms Parer to advise that she had spoken with Mr Dwyer, who assured her that QGIF's opinion had nothing to do with her (Ms Freemantle's) comment.  Further, Ms Freemantle advised that QGIF were conducting a review of the files Mr Weston was handling.

34. [34]
    Mr Weston approached Ms Parer on 23 March expressing his concern about the apparent increased scrutiny of his work by QGIF.  Ms Parer suggested he put his concerns in writing and she would take it to management.  Later that day, she received an email from Mr Weston referring to the M# file and expressing his concern about the tone of the email from QGIF.  He enquired as to whether she was "aware of anything that may have happened or has been said in respect of me that has contributed to the recent change in behaviour from QGIF."  He wished to try to resolve whatever issues existed.

35. [35]
    Ms Parer forwarded Mr Weston's email to Ms Cubby and Ms Freemantle.  In her covering email, Ms Parer requested "to speak to OD and a workplace lawyer on the best way to proceed."  She continued:

"My concerns are that a few weeks ago comments were made to the client about Jeremy and within a short period of time we have started to receive complaints about his files.  Whilst Jeremy had complaints from the client for a period of time, I note it has been 6-7 months since the last complaint, that is, until after the meeting.  Helen and I have discussed Jeremy and this issue.  Whilst one may have nothing to do with the other, if a complaint or claim was ever brought I consider it likely that an inference would be made that the two incidents are connected.  I do not feel I can proceed further without clarification on the issue and how best to proceed."^[12]

36. [36]
    On 24 March, while on sick leave, Ms Parer sent an email to Ms Cubby advising that Ms Freemantle contacted her on 23 March.  In that conversation, Ms Freemantle advised she had been talking to Mr Dwyer who said that QGIF were going to review Mr Weston's files.  Further, they had been discussing the client survey and "the conversation of Jeremy came up".  Ms Parer went on to express her concern about the apparent connection between Ms Freemantle's comment and the action being taken by QGIF.  Ms Parer added that she was informing her of the situation and she was concerned that in light of his email the previous day Mr Weston may be considering pursing a claim against Crown Law.

37. [37]
    The following day Ms Parer spoke by telephone with Ms Cubby.  During that conversation Ms Cubby noted that Mr Weston's email did not indicate he was aware of Ms Freemantle's comment.  Although Ms Parer's evidence given in cross-examination is that she advised Ms Cubby then of the conversation she had had the previous week with Mr Weston, this evidence was not included in any of her affidavits.

38. [38]
    During this conversation Ms Cubby mentioned Mr Weston might need to be performance managed and advised that a meeting was being arranged for later that day to discuss Ms Parer's concerns.

39. [39]
    Before the meeting with Ms Parer was held, Ms Cubby met with Ms Freemantle, Karen Watson, Deputy Crown Solicitor, Public Law Branch and Ms Hamilton, Assistant Crown Solicitor, Workplace Law team, to determine who would take the lead on the agenda. 

40. [40]
    The meeting requested by Ms Parer was attended by her, Ms Cubby, Ms Freemantle, Ms Hamilton, Ms Watson, and Susan Austin, Senior Principal Lawyer, GR2 team.  Ms Austin attended because Ms Parer requested a support person on learning that more than Ms Cubby and a workplace lawyer were to be present.  Ms Parer considered that the meeting might take a different direction to that which she understood it to be about.

41. [41]
    It is common ground that the discussion included that Ms Parer would performance manage Mr Weston and she was provided with the relevant guidelines.

42. [42]
    Ms Parer has a different recollection of the outcome of the meeting from Ms Cubby.  Ms Parer's understanding is that she was to undertake a review of the M# file.  Ms Cubby's view is that Ms Parer was to undertake a review of all of the files about which QGIF had raised concerns.  This view is supported by an email attached to her affidavit from Ms Freemantle to Ms Parer (copies to Ms Cubby, Ms Watson and Ms Hamilton) dated 26 March that states, "it was agreed that you would review the M# file, provide me with copies of the complaints from QGIF and review the files contained in the email from Bill Dwyer on 23 March 2015."  The review of the M# file was to be completed by 27 March and the other files were to be reviewed "as diligently as possible".

43. [43]
    Ms Parer was absent from work on 26 March and did not respond to the email as by this time she was "very anxious, upset and struggling with what was going on".  Ms Parer also took sick leave from 27 March to 2 April followed by a period of pre-arranged leave.  She did not return to work until 20 April.

44. [44]
    As a result of Ms Parer's absence, Ms Freemantle undertook the review of the M# file so that she could respond to QGIF's concerns.  According to Ms Cubby, Ms Freemantle's review was time consuming.^[13]  Because of this and her desire that the process be transparent, and at the suggestion of the Crown Solicitor, Ms Cubby decided to outsource the remainder of the file reviews to external counsel.  Ms Cubby sought advice as to the appropriate person.  Ms Watson and Ms Hamilton recommended Joanne Sorbello.  Ms Hamilton spoke with Ms Sorbello on 13 April to ensure she had no conflicts and had capacity to complete the review.  Ms Sorbello was formally briefed by Crown Law to review five files, including the M# file, on 14 April.  Because of her absence from work Ms Parer's was unaware that Ms Sorbello had been retained.

45. [45]
    On 7 April, Mr Weston lodged a stage 2 grievance with the Crown Solicitor.  On the same day, QGIF made further complaints about Mr Weston by email following its review of the files Mr Weston was handling.

46. [46]
    One week later, on the same day that Ms Sorbello was briefed, Ms Parer lodged an employee complaint with Mr Cooper.  In her complaint, Ms Parer identified two categories of complaint:

1. (i)
   unfair and unreasonable administrative decisions made by Ms Freemantle; and
2. (ii)
   unfair and unreasonable conduct by Ms Freemantle.

Each of these categories described a number of incidents.  Ms Parer sought to be removed from Ms Freemantle's management.

47. [47]
    Ms Cubby gave Ms Freemantle a copy of the complaint on 8 April.  Her oral evidence was that Ms Freemantle looked surprised and was not happy.

48. [48]
    The Crown Solicitor responded to Ms Parer's complaint on 5 May, advising that he was not taking any action in relation to the matters she raised and did not propose to provide her with the outcomes she sought.  As Ms Parer was dissatisfied with the outcome, she escalated the matter to the Director-General of DJAG, David Mackie, on 19 May.

49. [49]
    On receipt of the complaint, Mr Mackie engaged an external firm to investigate it.

50. [50]
    The first report from Ms Sorbello was addressed to the Crown Solicitor and received on 28 May.  It dealt with the M# file and one other.

51. [51]
    The Suspension:  During the week of 1 June 2015, Stuart Woods, Director - Human Resources, DJAG, became involved in the matters affecting Mr Weston and Ms Parer when he received a telephone call from Samantha Kane, Assistant Crown Solicitor, Workplace Law team.

52. [52]
    Mr Mackie delegated his powers under the Public Service Act 2008 in respect of both Ms Parer and Mr Weston to Mr Rallings on 10 June.  As the date was initially subject to challenge from Ms Parer, it is dealt with in more detail later in this decision.

53. [53]
    On 12 June, Mr Woods provided Mr Rallings with a number of documents relating to the suspension of the two Crown Law officers.

54. [54]
    Mr Rallings signed the suspension letters for both Ms Parer and Mr Weston on 12 June.  They were suspended pursuant to s 189 of the PS Act.

55. [55]
    The letters were delivered by Mr Woods and Monica Campbell, Manager of Safe Work and Healthy People, DJAG, at about 2.20 pm that afternoon.  Ms Cubby also became involved when Ms Parer and Mr Weston did not immediately leave their offices as directed.  Mr Woods accompanied Mr Weston to the lift and Ms Campbell accompanied Ms Parer to the ground floor.

56. [56]
    By letter dated 26 June, Susan Moriarty and Associates, (SMA), a firm of Solicitors acting on behalf of both Ms Parer and Mr Weston, wrote to Mr Rallings seeking the revocation of Ms Parer's suspension on the grounds that "in substance and effect" the decision to suspend Ms Parer could be "characterised as an act of reprisal" in light of her unresolved complaint against Ms Freemantle.  (A similar letter was sent in respect of Mr Weston.)  Mr Rallings responded declining to revoke the suspension and rejecting the contention that he had taken the suspension decision in furtherance of any reprisal action or for any improper purpose.

57. [57]
    The First Show Cause Letter:  Mr Woods received the remaining reports from Ms Sorbello on 29 July and provided them to Mr Rallings.

58. [58]
    On 3 August, Mr Rallings reviewed Ms Sorbello's further reports.  Mr Rallings and Mr Woods discussed the next steps in the process on either 4 or 5 August.

59. [59]
    As a result of that conversation, Mr Woods arranged for draft first show cause letters to be prepared by Crown Law.  These were provided to Mr Rallings on 27 August along with material for his consideration.

60. [60]
    The first show cause letter sent to Ms Parer made nine allegations against her, a number of which contained sub-allegations.  Five allegations concerned her supervision of Mr Weston; two others related to the M# file; one concerned Ms Parer's supervision of another lawyer in her team and the last alleged, in effect, that she had misrepresented whether a letter had been sent to a claimant's solicitor.

61. [61]
    Further correspondence ensued between SMA and Mr Rallings, including requests for extensions of time, provision of further information and document inspection.

62. [62]
    Legal proceedings instituted:  On 4 November, both Ms Parer and Mr Weston lodged applications pursuant to s 120 of the IR Act in the Commission.  On receiving advice of these proceedings, Mr Rallings instructed the disciplinary process be stayed so that the legal process could take its course.

63. [63]
    Separate conciliation conferences for each application were conducted by Vice President Linnane on 18 November.  The result of Ms Parer's conference was that a consent Order was made whereby Ms Parer, amongst other matters, agreed to provide a response to the show cause letter by 11 January 2016.

64. [64]
    On 16 December, both Ms Parer and Mr Weston lodged further applications in the Commission.  Acting on advice from Crown Law conveyed through Mr Woods on or around 24 December, Mr Rallings decided that there was no requirement to further delay the disciplinary process.  He considered that Ms Parer had had ample time and resources to respond to the allegations.  Mr Rallings instructed Mr Woods of his view and to have prepared the second show cause letter.  Mr Woods informed Ms Kane and Fiona Black, Solicitor, Workplace Law team, of Mr Rallings' position.  However, Mr Rallings did not receive the draft letter before he departed on recreation leave in late February 2016.

65. [65]
    Ms Parer did not respond to the show cause letter by the date specified in the consent Order.

66. [66]
    The Second Show Cause Letter:  When Mr Woods became aware in late February/early March 2016 of Mr Rallings' period of leave, he arranged for his delegation to be revoked by Mr Mackie and for Kerrith McDermott, Deputy Commissioner, QCS, to be given the delegation powers under the PS Act instead.  Ms McDermott became the delegate to make disciplinary decisions in relation to Ms Parer and Mr Weston by instruments dated 16 March 2016.  Because of an error in the instruments, the delegations were confirmed on 30 March 2016.  By this time Mr Rallings had returned from leave.  Despite this, the delegations remained with Ms McDermott.

67. [67]
    The delegations given to Ms McDermott gave her authority to decide:

1. (i)
   whether the allegations that had been put to Ms Parer and Mr Weston in the first show cause notice were substantiated; and
2. (ii)
   if so, the appropriate disciplinary penalty.

68. [68]
    Ms McDermott was given a large number of documents to consider and, because of this, she was given a briefing by a Crown Law solicitor on 22 March for about 1½ hours.

69. [69]
    On 30 March, she was provided with the documents specifically relating to Ms Parer.

70. [70]
    Ms McDermott concluded that the allegations had been substantiated and decided to issue the second show cause letter setting out her decision on the disciplinary findings and proposing the disciplinary penalty of termination of employment.  Her letter to this effect was dated 12 April 2016.

5. THE PARTIES' CASES

71. [71]
    This section provides an outline of the parties' respective cases.  While the cases will be fleshed out when dealing with the various issues, this outline provides some context to the arguments advanced and the positions taken by each of the parties.

72. [72]
    The parties have different views on almost all matters, including the inferences that should be made from the evidence, the application of the case law and the decision the Commission should make.  One thing on which they agree is that the Commission is not required to make any decision in relation to the allegations made in the show cause letter.

1. (i)
   The Applicant's Case

73. [73]
    Ms Parer's case is that she had an unblemished career in Crown Law up until the point that she raised her concerns about Ms Freemantle's comment made at the meeting with QGIF on 18 February 2015.

74. [74]
    She claims that the review of Mr Weston's files by Ms Sorbello was a secret investigation which was deliberately concealed from her.  Further, as she was not mentioned in Ms Sorbello's reports, there were forces in Crown Law which were working to disadvantage her in her employment.  In her closing submissions Ms Parer nominates those involved to include Ms Freemantle, Ms Kane and Ms Black.

75. [75]
    Ms Parer contends that someone in Crown Law was taking the initiative and acting deliberately in moving for a disciplinary process against her in circumstances where she was not mentioned in the Sorbello reports.  Action against a supervisor for the deficiencies of a subordinate was unprecedented in Crown Law and any performance issues on her behalf should have been dealt with by "a quiet word" rather than a formal disciplinary process.

76. [76]
    Ms Parer contends that Crown Law were acting deliberately, controlling the content of documents which were placed before Mr Mackie, Mr Rallings and Ms McDermott; the pace of the show cause process and the decision making by Mr Rallings and Ms McDermott.  The effect of this was that none of them, especially the delegated decision makers, were aware of all of the relevant facts.  She alleges that Mr Rallings and Ms McDermott "rubber-stamped" the decisions or were otherwise "wilfully blind" or "innocent instruments or agents".

77. [77]
    The case advanced by Ms Parer is circumstantial.  She contends there are multiple missing evidentiary links in the case advanced by the Respondent with the result that it has failed to discharge its evidentiary onus.  The missing links include evidence the Respondent could have called but did not, for example, the three nominated Crown Law officers.  The failure to adduce this evidence invites a Jones v Dunkel^[14] inference.  More importantly, the missing evidentiary links "reveal the control being exercised over the process from forces within Crown Law."

2. (ii)
   The Respondent's Case

78. [78]
    The Respondent's case is summarised in its written closing submissions as follows:

79. [79]
    The Respondent submits that Crown Law was no more than the legal advisors to the decision makers.  Mr Rallings and Ms McDermott exercised their own independent judgment on the material that was before them and came to the conclusion that the suspension and disciplinary process was reasonable and appropriate given the serious deficiencies that had been uncovered.

6. WHAT DOES EACH PARTY HAVE TO PROVE?

80. [80]
    Section 122A provides a presumption that the prohibited conduct has occurred because of a prohibited reason unless proved otherwise (the reverse onus).

81. [81]
    Ms Parer contends the effect of this section is that she has no obligation to provide evidence of a prohibited reason or establish facts giving rise to a hypothesis of a proscribed reason for the conduct.  Support for this submission is said to be found in the decision in McIlwain v Ramsey Food Packaging Pty Ltd^[15] (McIlwain) where Goldberg J held there was no obligation on an employee to provide evidence of a prohibited reason.

82. [82]
    The Respondent takes the opposite view, contending that prior to the reverse onus being invoked, it is incumbent on the Applicant to establish that she has one or more of the "protected characteristics" listed in s 104(1).  The concept of "protected characteristic" is derived from the decision in Allied Express Transport Pty Ltd v Humphrey (Allied Express) where Hall P held:

"Section 105(2)(b) is an unusual provision.  It does not render conduct unlawful. It renders conduct unlawful only if the conduct possesses one or more of the prohibited characteristics particularised at s. 104(1)."^[16]

83. [83]
    The Respondent submits that that case is authority for the proposition that if no s 104 characteristic is engaged then the Respondent cannot have engaged in prohibited conduct.

84. [84]
    It is to be noted that the Allied Express decision was made in circumstances when the IR Act did not contain s 122A or an equivalent provision.  Because of this, and given the paucity of decisions concerning the freedom of association provisions of the IR Act, it is useful to consider the federal authorities.

85. [85]
    In Davids Distribution Pty Ltd v National Union of Workers,^[17] (Davids) the Full Court of the Federal Court was considering under the Workplace Relations Act 1996 (Cth) (WR Act) the case of the dismissal of employees on the basis of their involvement in pickets.  Section 298K of that Act was broadly consistent with s 104 of the IR Act and s 298V concerned the onus of proof.  Except for where that section referred to "a person's or entity's conduct" and s 122A of the IR Act refers to "an entity's conduct", the provisions are substantially the same.

86. [86]
    In discussing Davids in McIlwain, Goldberg J said, when referring to s 298V of the WR Act:

"[329] The conventional approach to this section is explained by Wilcox and Cooper JJ in David's Distribution Pty Ltd v National Union of Workers [1999] FCA 1108; (1999) 91 FCR 463 at [109], in these terms:

'Section 298L(1)(l) requires that the applicant prove the employee was dismissed from his or her employment.  It also requires it to be proved that the employee was at the time of the dismissal dissatisfied with his or her industrial conditions and was a member of an industrial association that was seeking better industrial conditions. In order to make the link between the dismissal and the circumstances which the applicant must establish to bring the dismissal within s 298K, the Act provides in s 298V a statutory presumption that the link exists in certain circumstances. Under s 298V in proceedings under Div 6 of Pt XA of the Act for a contravention of a section in Pt XA, an allegation in those proceedings of conduct for a prohibited reason is sufficient for it to be presumed that the conduct was engaged for that reason unless the employer proves to the contrary. Section 298V does not relieve the applicant in proceedings under Div 6 of Pt XA of the Act from proving, on the balance of probabilities, each of the ingredients of the contravention. It enables the allegation to stand as sufficient proof of the fact unless the employer proves otherwise: R v Hush; Ex parte Devanny [1932] HCA 64; (1932) 48 CLR 487 at 507.'"^[18]

After discussing other authorities and the perspectives of the parties in that matter, Goldberg J said: 

"[334] The majority judgment in David's Distribution v NUW properly understood, is not authority for the proposition that a bare allegation of a prohibited reason in respect of proven or admitted conduct, for example, termination of employment, is sufficient to cast an onus of 'proving otherwise' upon the respondents."^[19]

87. [87]
    In my view, the passage relied on by the Applicant in McIlwain has to be read in the above context. 

88. [88]
    Whether an Applicant is required to engage one or more of the characteristics or circumstances in the prohibited reasons provision of the relevant legislation has been considered in many federal decisions.  In Tattsbet Limited v Morrow,^[20] (Tattsbet) Jessup J, with whom Allsop CJ and White J agreed, referred to the question of whether s 361(1) of the Fair Work Act 2009 (Cth) operates to reverse the onus of proof upon nothing more than the making of an allegation, without the maker of the allegation being under any obligation first to establish the factual existence of the circumstance which is said to have been the reason for the taking of the adverse action.   Section 361, which falls within the General Protections provisions of the FW Act, concerns the reverse onus of proof.  He said:

"[119]  … the long history of corresponding provisions in previous legislation (and) the many first-instance judgments of this court … has … treated as uncontroversial that the party making an allegation that adverse action was taken 'because' of a particular circumstance needs to establish the existence of the circumstance as an objective fact: see Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd [1999] FCA 1531; (1999) 140 IR 131, 167 [161]-[162]; Bahonko v Sterjov [2007] FCA 1244; (2007) 167 IR 43, 75-77 [96]-[101]; Lever v Australian Nuclear Science and Technology Organisation [2007] FCA 1251 at [27]; Police Federation of Australia v Nixon [2008] FCA 467; (2008) 168 FCR 340, 360-361 [68]; Rojas v Esselte Australia Pty Limited (No 2) [2008] FCA 1585; (2008) 177 IR 306, 321-322 [49]-[50]; Jones v Queensland Tertiary Admissions Centre Ltd (No 2) [2010] FCA 399; (2010) 186 FCR 22, 27-28 [10]; Australian Licenced Aircraft Engineers Association v International Aviation Service Assistance Pty Ltd [2011] FCA 333; (2011) 193 FCR 526, 578-579 [329]-[331]; Construction, Forestry, Mining and Energy Union v Pilbara Iron Company (Services) Pty Ltd (No 3) [2012] FCA 697 at [59]; Stephens v Australian Postal Corporation [2014] FCA 732 at [13]."^[21]

89. [89]
    A number of the authorities cited in this passage predate the adverse action provisions of the FW Act and concerned provisions in the WR Act which were the equivalent provisions to ss 104, 105 and 122A of the IR Act.  Of particular relevance is the decision in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd^[22] where Branson J held that s 298V does not allow an applicant to circumvent a finding that a proscribed circumstance under s 298K did not exist.  This decision was cited with approval in a number of the decisions referred to by Jessup J in Tattsbet.  Branson J said:

"[161] In respect of the allegation that the respondent injured Mr Burford in his employment, or altered his position as an employee to his prejudice, for the reason, or for reasons that included the reason, that Mr Burford had participated in proceedings under an industrial law. I have concluded in para 75 above, that Mr Burford did not relevantly participate in proceedings under an industrial law within the meaning of s 298L(1)(j). Section 298V of the Act does not, in my view, allow the applicant to circumvent that finding. Rather it is to be construed as an aid to proof of the intent or reason of the respondent which motivated, or formed part of the motivation for, the respondent's conduct. It may fairly be presumed that the section is intended to alleviate the difficulties of proof by one party of the state of mind or motivation of another.

[162]  For analogous reasons, I do not consider, so far as the circumstances proscribed in s 298L(1)(m) are concerned, that s 298V relieves the applicant from the obligation of establishing as a fact that the relevant employee absented himself from work without leave for the purpose of carrying out duties as an officer of an industrial association (s 298L(1)(m)(i)) and that the employee applied for leave before absenting himself and that leave was unreasonably refused or withheld (s 298L(1)(m)(ii)). The impact of s 298V, in my view, is simply to alleviate the evidentiary difficulty facing the applicant of providing proof of the intent or reason which motivated, or formed part of the motivation for, the respondent's conduct following the absence of the employee from work."^[23]

90. [90]
    In light of these authorities and the consistency between the federal and state statutes, I consider that Ms Parer is required to establish that one or more of the proscribed circumstances in s 104 is engaged before the reverse onus is enlivened.

7. THRESHOLD ISSUES

91. [91]
    The Respondent submits that there are two threshold questions the Commission needs to determine.  Reframed to take account of the terminology used in the IR Act,  these are whether:

1. (i)
   the prohibited reasons relied on by Ms Parer in respect of s 104(1) of the IR Act exist; and
2. (ii)
   the conduct complained of in the application falls within the definition of prohibited conduct in s 105(2) of the IR Act.

92. [92]
    Did the proscribed circumstances exist?:  Ms Parer's application identifies three prohibited reasons for the conduct of Mr Rallings and Ms McDermott.  These reasons were expressed cumulatively and as alternatives.  They are that she:

1. (i)
   is dissatisfied with her industrial conditions (s 104(1)(l)); and/or
2. (ii)
   has made a complaint to a person or body having the capacity under an industrial law to seek compliance with that law (s 104(1)(i)); and/or
3. (iii)
   (in respect of Ms McDermott's decisions) has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law (s 104(1)(j)).

1. (i)
   Is dissatisfied with industrial conditions

93. [93]
    Meaning of "is dissatisfied":  In Allied Express, Hall P considered at some length the statutory history of s 104.  The prohibited conducted alleged in that case was dismissal because Mr Humphrey was dissatisfied with his industrial conditions.  In deciding whether the prohibited conduct of dismissal was contemporaneous with an existing dissatisfaction with industrial conditions and that was the substantial and operative reason for the dismissal, Hall P had cause to consider the meaning of "is dissatisfied".  His reasoning as to its meaning is relevant to the present matter.

94. [94]
    After noting that other paragraphs of s 104(1) distinguished between the tenses, he held that "[t]he inference is that tense has been selected deliberately."^[24]  He referred to various authorities and concluded that when used with the participle "dissatisfied", the expression "is dissatisfied" indicates contemporaneity.

95. [95]
    Hall P then considered the meaning of "dissatisfied" and held that given the origin of the word from the decision in Pearce v WD Peacock and Company Limited,^[25] it could not be given its ordinary dictionary meaning.  He held:

"The intent of the legislature was to use the word in the sense of the 'dissatisfaction' which will drive a demand sufficient, if refused, to found a finding of 'industrial dispute' in the constitutional, i.e. the dissatisfaction must be both actual and enduring."^[26]

96. [96]
    Meaning of industrial conditions:  The Particulars of Ms Parer's industrial conditions set out in Part 111 of Attachment A to her application state that they are the conditions and benefits under her contract of employment and the PS Act.  In the "Further Particulars" of her application, she says her industrial conditions are also set out in her complaint to the Crown Solicitor of 14 April 2015.

97. [97]
    The Particulars of her application identify the following industrial conditions which Ms Parer claims the benefit of under her contract of employment:

98. [98]
    The Particulars also set out following industrial conditions which are claimed to arise as a consequence of the provisions of the PS Act:

"(a) That in her personal conduct to Ms Parer and to persons managed by Ms Parer including Mr Jeremy Weston, Ms Freemantle observe the Public Service Act 2008, in particular section 26(1), the requirements of the Code of Conduct, and the provisions of sections 12H and 18 of the Public Service Ethics Act 1994. 

2. (b)
   That Mr Cooper and Mr Mackie comply with the requirements of section 26(3) of the Public Service Act 2008 by managing the personal conduct of Ms Freemantle and take prompt and appropriate action to address unacceptable personal conduct by Ms Freemantle."

99. [99]
    The Further Particulars of her application include a table setting out the dates Ms Parer expressed her dissatisfaction, the persons to whom she expressed it and the subject matter of the dissatisfaction.  The matters contained in the table commence with Ms Parer's meeting with Ms Cubby on 13 March about Ms Freemantle's comment, follow with her meeting with Ms Freemantle on 23 March, the broader meeting on 25 March, then continue with her complaint to the Crown Solicitor and end with the elevation of her complaint to the Director-General.

100. [100]
     In her affidavit accompanying her application, Ms Parer says that the complaint set out a number of conditions of employment with which she was dissatisfied, including the following, which I have summarised:

1. (a)
   workload issues caused by decisions of Ms Freemantle;

2. (b)
   Ms Freemantle's refusal to provide assistance to manage the workload and refusal to backfill her position while she was on leave;

3. (c)
   Ms Freemantle's requirement to take on an extra file load when there was another available officer; and
4. (d)
   Ms Freemantle engaging in acts that undermined her authority as team leader.

101. [101]
     In her affidavit of 4 July 2016, Ms Parer's claim expands the list of industrial conditions arising under her contract of employment given in the Particulars of her application by adding the provision of a safe system of work and the (implied) term of "good faith" in the management and supervision of her as an employee.

102. [102]
     In her closing submissions, when referring to the provisions in ss 104 and 105 she relies on, Ms Parer identifies that she was dissatisfied with her industrial conditions as expressed through her complaint. Later in those submissions, Ms Parer expands the sources of her industrial conditions and specifically identifies the common law; terms implied into her contract of employment; her Position Statement; employer policies, procedures and "the like" and the IR Act.

103. [103]
     In her submissions, Ms Parer notes that the expression, "industrial conditions" is not defined by the IR Act.  The expression must then be understood in the context of the Part and Chapter of the Act in which it appears and the Act as a whole.  She submits there is nothing in Chapter 4 that calls for a narrow construction in beneficial and remedial legislation.

104. [104]
     Ms Parer submits that the expression, "industrial" is not confining or limiting and draws a comparison with the definition of "industrial matter", which, it is said, "covers almost any conceivable workplace event".

105. [105]
     The Respondent accepts that the expression "industrial conditions" has been interpreted broadly but it is not an unrestricted term.  Relying on the decision in Ruberry v Terry White Chemists,^[27] the Respondent submits that to be industrial conditions, the conditions:

1. (a)
   must apply directly to an affected employee (or a class of employee into which the applicant falls); and
2. (b)
   are limited to existing and specific entitlements deriving from a contract or industrial instrument.

106. [106]
     The Respondent submits that the conditions Ms Parer claims the benefit of under her contract of employment do not arise thereunder.  They are not express terms and do not meet the requirements for the terms to be implied in accordance with the authorities.  Neither do they exist independently by some other, non‑contractual mechanism.

107. [107]
     The Respondent accepts that, in general, there is an implied contractual term that an employer will provide a safe workplace and submits that the law is not settled as to whether the implied term of good faith exists in relation to employment contracts.

108. [108]
     Consideration:  Ms Parer's submissions on those matters which comprise her industrial conditions range beyond those set out in her application.  Further, her submissions about the industrial conditions she relies on appear to be inconsistent.  Given her closing submissions that the prohibited reason relied on was her dissatisfaction with her industrial conditions as expressed through her complaint, I consider it would be open to me to simply consider this issue.

109. [109]
     However, taking a cautious approach, I will consider those sources of the claimed industrial conditions that are identified in her application, viz., the conditions and benefits under her contract of employment and the PS Act, and her complaint to the Crown Solicitor.  It is unnecessary to deal with those industrial conditions which are not included in her application as it is that document which sets out the limits of her claim and it is that which the Respondent understood and relied on for responding to the claim.

110. [110]
     Ms Parer's contract of employment was made under s 122 of the PS Act.  It contains various items under the heading of "Provisions" including responsibilities; superannuation; remuneration and benefits; performance agreement; termination and severance payments as well as confidentiality clauses.  The letter attached to the contract is headed "Confirmation of Offer - Section 122 Contract" and states that the contract is offered on the basis of one year.  It attaches Public Service Chief Executive Directive No. 04/14:  Senior Officers Employment Conditions.

111. [111]
     The matters Ms Parer lists as arising under her contract of employment are not express terms.  It seems she seeks to have them treated as implied terms.  The High Court of Australia in Commonwealth Bank of Australia v Barker said:

112. [112]
     Ms Parer has not provided any authority that the terms said to arise under her contract of employment have been accepted as implied terms in Australia.  Further, given that in Barker the High Court held a term of mutual trust and confidence had not been implied into Australian employment contracts, the types of terms nominated by Ms Parer are unlikely to have been so implied.

113. [113]
     Ms Parer asserts she has industrial conditions as a consequence of the provisions of the PS Act.  However, as the heading of s 26 makes clear,^[29] its provisions are "principles" of work performance and conduct that apply to all public service employees.  The provisions oblige a public service employee's work performance and personal conduct to be directed towards certain standards.  They also require a public service manager to take certain steps in respect of the work performance and personal conduct of public service employees under their management.

114. [114]
     This view is consistent with the Explanatory Notes on the Public Service Bill 2008 where the following is said:

"Clause 26 recognises that public service employment involves a public trust, and sets out work performance and personal conduct principles.  These principles are a combination of ethical obligations (e.g. carrying out duties with impartiality and integrity) and work performance standards (e.g. collaborating with other departments with a focus on public service-wide priorities."^[30]

115. [115]
     As principles, s 26 provides the guiding rules of performance or conduct but cannot be industrial conditions.  I consider industrial conditions are entitlements that are prescribed by legislation such as the Queensland Employment Standards in the IR Act or are derived from a contract or an industrial instrument.

116. [116]
     The references to the Code of Conduct and the two provisions of the Public Service Ethics Act 1994 are also misguided.  In the explanation of how it works, the Code states that it contains the ethics principles and their associated set of values prescribed in the PSE Act.  It also contains standards of conduct for each ethics principle.  Again, these are not industrial conditions but are in the nature of obligations placed on all public service employees.

117. [117]
     The Commission does not accept that Ms Parer's complaint to the Crown Solicitor was an expression of her industrial conditions.  As the Respondent submitted:

"It is not sufficiently particularised and requires the Commission to discern what Ms Parer claims her industrial conditions to be from a document which:

1. (a)
   does not itself articulate what Ms Parer says her industrial conditions are; and
2. (b)
   is in fact, in the nature of a complaint document."

118. [118]
     In my view, her industrial conditions are those set out in her s 122 contract of employment.  Although she expressed displeasure in her evidence that a performance agreement was not entered into between her and Ms Freemantle as required by her contract, this was not specifically pleaded in her application as a source of dissatisfaction with her industrial conditions arising under her contract.  I am not persuaded that she was dissatisfied, in the sense determined by Hall P, with any of the matters set out in her s 122 contract.  Rather, she was dissatisfied, in the ordinary dictionary sense, with Ms Freemantle's management of her and her comment of 18 February 2015.

2. (ii)
   Making a complaint

119. [119]
     Ms Parer claims that her complaint to the Crown Solicitor of 14 April 2015 and the escalation of her complaint to the Director-General of 19 May 2015 constitute "a complaint to a person or body having the capacity to seek compliance with an industrial law."  The claimed industrial law is the PS Act and, in particular, s 26.

120. [120]
     In her affidavit accompanying her application, Ms Parer states that her complaint was made under the Respondent's "Employee Complaints Policy".  However, Ms Parer identifies in her written complaint to the Crown Solicitor that the complaint is being brought under an employee complaints policy albeit not that of the Respondent.  She did not make the complaint under the Respondent's Policy because the Respondent refused to provide her legal representatives with relevant policy documents.  Ms Parer explained that she did not wish to access the documents herself because she was aware that the Respondent makes a record of who and when departmental documents are accessed through the intranet and being concerned about that, she did not want to draw attention to herself or be victimised as a result of accessing them.

121. [121]
     In the response to her complaint, the Crown Solicitor confirmed he was "dealing with the Complaint as an 'employee complaint' under DJAG's Employee Complaints Procedure and the Employee Complaints Policy (the Policy)."

122. [122]
     In her letter to the Director-General, Ms Parer requested an internal review of her complaint under the Respondent's employee complaints procedure.

123. [123]
     Despite Ms Parer's initial reference to the complaint being made under the policy of another department, the Crown Solicitor could only act in accordance with the Respondent's policy.  Her subsequent complaint to the Director-General, her affidavit accompanying the application and her initial submissions make clear that the complaint is made under the Respondent's Employee Complaints Policy and Procedure.

124. [124]
     The Respondent submits that Ms Parer's complaint was made under an internal policy and, unlike a grievance procedure under an award, the policy in question has no basis in an industrial law including the PS Act or the PSE Act.  The complaint and its review arise solely under the policy, not an industrial law.

125. [125]
     Consideration:  In my view it is not necessary to resolve the question of whether Ms Parer's complaint, which was made under an internal policy, is a complaint made to a person or body which has the capacity to seek compliance with an industrial law.  This is because the outcome Ms Parer seeks from her complaint, both to the Crown Solicitor and the Director-General, is that she be removed from Ms Freemantle's supervision.  It does not seek that the Crown Solicitor or the Director-General take any action against Ms Freemantle.  Although the Director-General, and presumably the Crown Solicitor, have power to change the supervisory structure or reporting lines, there is no provision in the PS Act requiring a relevant manager to take such action.  It is a matter of managerial prerogative.  And, as mentioned earlier, s 26 sets out principles but does not mandate courses of action that should be taken in particular circumstances by managers.

126. [126]
     The Commission accepts the submissions of the Respondent that Ms Parer's assertion that her complaint seeking action be taken pursuant to section 26 of the PS Act is a recent construct for the purpose of her application.

3. (iii)
   Participation in proceedings

127. [127]
     The proceedings in question are the proceedings in relation to the s 120 application and also related applications as well as the declarations application.  The industrial law is the IR Act.

128. [128]
     The Respondent does not dispute that Ms Parer's application and a previous application for declarations (which was dismissed by the Commission^[31]) are proceedings under an industrial law.  However, the Respondent submits that given her present application was filed on 4 November 2015, there can be no prohibited conduct under s 104(i)(j) before that time.  Thus the prohibited conduct can only arise with respect to Ms McDermott's decisions.

129. [129]
     Although the Respondent denies any connection between Ms Parer's involvement in these proceedings and Ms McDermott's decisions, the reasons for that submission were not explained under the heading of threshold issues but left to the consideration of the reasons for the decisions.

130. [130]
     This claimed prohibited reason is considered in detail under the headings of "Who made the impugned decisions?" and "What were the reasons for the conduct?".

4. (iv)
   The instances of prohibited conduct

131. [131]
     Ms Parer alleges four instances of prohibited conduct, viz.:

1. (i)
   Mr Rallings suspending her employment on 12 June 2015;
2. (ii)
   Mr Rallings issuing the first show cause letter to her on or around 4 September 2015;
3. (iii)
   Ms McDermott issuing the disciplinary findings decision that she was liable to discipline in the second show cause letter of 12 April 2016; and
4. (iv)
   Ms McDermott's "threat" to terminate Ms Parer's employment contained in the second show cause letter.

132. [132]
     Ms Parer claims that the above four instances fall within s 105(2)(b) or (c) of the IR Act.

133. [133]
     In its closing written submission the Respondent states:

"[86] To the extent that the four matters above are the alleged prohibited conduct, the Respondent concedes that those matters are capable of falling within the scope of either section 105(2)(b) or (c) of the Act."

134. [134]
     Conclusion on threshold issues:  For the above reasons, I am not satisfied that Ms Parer has established that she had the protected characteristic of being dissatisfied with industrial conditions (s 104(1)(l)) or that she made a complaint to a person or body seeking compliance with an industrial law (s 104(1)(i)).  I accept that she participated in proceedings under an industrial law.

135. [135]
     In the event I am wrong about any of the conclusions I have reached, consideration will still be given to all of the instances of prohibited conduct alleged by Ms Parer.

136. [136]
     Although making the concession above in relation to the alleged prohibited conduct, the Respondent cautions the Commission against conflating the examples of prohibited conduct with the numerous other collateral matters raised in the particulars or the application which the Respondent contends do not engage the reverse onus.

137. [137]
     It is appropriate now to consider whether the issues the Respondent describes as "collateral" are that or whether they are more properly considered as part of the prohibited conduct.

8. COLLATERAL OR SUBSTANTIVE ISSUES?

1. (i)
   Delegations issues

1. (a)
   The delegations to Mr Rallings

138. [138]
     Who decided Mr Rallings would be the decision maker?:  As part of her attack on the opaqueness of the conduct of the Respondent, Ms Parer points to the lack of clarity around how Mr Rallings came to be the delegated decision maker.

139. [139]
     Mr Woods' evidence is that during the week of 1 June 2015 he received a telephone call from Ms Kane advising that Crown Law had been engaged as legal representatives for DJAG to provide advice regarding a disciplinary process for Mr Weston and Ms Parer.

140. [140]
     Ms Kane further advised that Ms Watson and Ms Hamilton were providing legal advice in relation to the grievance and complaint management process.  Ms Cubby and Jeff Loof, Executive Director - Human Resources, DJAG, were instructing those two solicitors in relation to those matters.  Mr Loof had nominated Mr Woods to provide instructions in relation to the disciplinary matter.  Ms Kane also advised that Mr Mackie could not be the decision maker in the disciplinary processes as he was the decision maker in relation to Mr Weston's grievance and Ms Parer's complaint.

141. [141]
     They discussed alternative decision makers and Mr Woods agreed to approach Mark Rallings, Commissioner, QCS.  Mr Woods said Mr Rallings was proposed because he had come into the Department recently through machinery of government changes and was independent of the matters in question.

142. [142]
     However, Mr Mackie's evidence under cross-examination was that he alone decided that he should delegate Mr Rallings as the decision maker.  He could not recall discussing the issue with anyone else except Mr Rallings himself just prior to giving him the delegation.  I note the delegation instrument refers to Mr Rallings as Deputy Director-General, which I understand to be his substantive position. 

143. [143]
     Consideration:  In my view the evidence of Mr Woods and Mr Mackie is not inconsistent.  The view, quite properly, was reached that the decision maker for Ms Parer's complaint should be different from the decision maker for the suspension and any subsequent disciplinary action.  Mr Woods' advice was sought in relation to the matter and subsequently documents were drafted for Mr Mackie's consideration and decision.  Mr Mackie then made the decision to delegate the decision making power to Mr Rallings without discussion with Mr Woods or anyone else.

2. (b)
   Dates of the delegation instruments

144. [144]
     Part VI of the Particulars of Ms Parer's application state at paragraphs (k) and (l):

145. [145]
     The validity of the delegation of powers from Mr Mackie to Mr Rallings initially assumed some importance in the case conducted by Ms Parer.  So much so that she engaged a professional document examiner to provide an opinion on the authenticity of the delegation instruments and the dates reproduced in them.

146. [146]
     To provide context, Mr Mackie signed two delegation instruments: one relating to Mr Weston and the other to Ms Parer.  By these instruments, Mr Mackie delegated all of his powers under the PS Act to Mr Rallings to make any decisions relating to Mr Weston and Ms Parer or any other Crown Law employee "which may arise from an examination of the barrister's reports and any other relevant material pertaining to those employees."

147. [147]
     The validity of the delegations arose because the date inserted by Mr Mackie on each document had been obviously corrected and in respect of Ms Parer, also gave the date of "10.9.15".  As such, the date of the delegation instrument would appear to have post‑dated the suspension letter.

148. [148]
     After cross-examining Mr Mackie, Mr Callaghan SC said when addressing the Commission about the issue of handwriting on the delegation instruments:

"… I think you'll have gathered from the cross-examination of Mr Mackie that there's no issue taken or that that's not going to be particularly controversial."^[32]

149. [149]
     The Applicant did not address the handwriting in the delegation instruments in her written closing submission.  However, the issue became live again in her written reply submissions.  This necessitated a response from the Respondent given that Mr Mackie's credibility and integrity had been impugned.

150. [150]
     Consideration:  Although "a line of questioning about the legality of Ms Parer's suspension" might have been justified as Ms Parer said, once Senior Counsel had advised that the issue was not going to be actively pursued, it should not have been resuscitated in the manner outlined.

151. [151]
     I accept Mr Mackie's explanations of when the delegation instruments were signed and how the corrections came to be made.  I accept that the records from DJAG's electronic document management system establish that both delegation instruments were entered into the system on 11 June 2015.  From this Mr Mackie opines, and I accept, that he signed both together on 10 June 2015. He made a genuine error on Mr Weston's delegation instrument which was corrected and then a short time later made another mistake about the actual date on Ms Parer's delegation instrument.  There is nothing sinister or untoward about the signing and dating of the delegation instruments.

152. [152]
     I accept the delegation to Mr Rallings was validly given by Mr Mackie on 10 June 2015.

3. (c)
   Change of delegation

153. [153]
     The Applicant also takes issue with the change of delegations from Mr Rallings to Ms McDermott.  As she correctly notes, the change occurred two weeks prior to Mr Rallings returning from leave.  Both Mr Rallings and Ms McDermott were perplexed about the change.  The Applicant submits that there is an absence of critical information explaining the delay in changing the delegation and the reason for the change in circumstances where SMA had corresponded with the Respondent raising the issue of the lawfulness of the suspension.

154. [154]
     In Part V1 of the Particulars, Ms Parer sets out a number of inferences as to the cause of the prohibited conduct, including:

"(q) Following the disclosure of the flawed delegations to Mr Rallings and the question being raised about the lawfulness of the suspension, and during the course of and notwithstanding proceedings in the Commission seeking remedies about prohibited conduct and to remedy reprisal action, without notice to the Applicant and the Commission, Mr Mackie purported to revoke the delegations to Mr Rallings and confer new delegations on Ms McDermott to proceed against the Applicant.

(r) Ms McDermott knew of the matters in the preceding paragraph and, nevertheless, accepted the delegations and proceeded to act on them by, inter alia, issuing a show cause letter to the Applicant on 12 April 2016 concerning the form of sanction that Ms McDermott intended to impose on the Applicant."

155. [155]
     The reason for the change was explained by Mr Woods.  He became aware in late February of Mr Rallings' leave, and had it confirmed in early March.  He discussed the matter with Ms Kane who recommended, on Counsel's advice, changing the delegations so the process could continue as expeditiously as possible.  As a result Mr Woods arranged for draft amended delegations to be prepared and provided to Mr Mackie revoking Mr Rallings' delegation and delegating the relevant authority to Ms McDermott.  The date on the brief to Mr Mackie is 16 March.

156. [156]
     On Mr Rallings' return from leave, Ms McDermott had commenced reviewing the documents.  Mr Mackie decided that the delegation should remain with her.

157. [157]
     The delegation instrument refers to Ms McDermott's substantive position as Assistant Director-General.

158. [158]
     Consideration:  It is to be borne in mind that the decision to continue with the disciplinary process was made on Christmas Eve.  The process of formulating the second show cause letter would have occurred in the New Year.  The content of the draft letter shows that it was a substantial task.

159. [159]
     The evidence establishes there was a delay between Mr Woods becoming aware of Mr Rallings' leave and the submission of the amended delegation to Mr Mackie.

160. [160]
     There is no evidence, nor can it be reasonably inferred, that the reason for the change in delegation was other than the reason explained by Mr Woods.  For reasons given earlier, I do not accept the delegation given to Mr Rallings was flawed.  Nor do I not accept there was any necessity for the Respondent to notify Ms Parer of the changed delegation especially where the reason for the change was Mr Rallings' absence on leave.

161. [161]
     As the Respondent noted, the change in delegation also had a benefit for Ms Parer because her criticisms of Mr Rallings' decision to suspend and allegations of reprisal made against him were resolved.

162. [162]
     It may be that the late change in the delegations was a questionable use of public resources but it is only where that change was for a prohibited reason is the IR Act contravened^[33] and that has not been established.

163. [163]
     Conclusion on delegations issues:  For the reasons given with respect to each issue raised, the Commission finds that they are each a collateral issue and do not bear on the consideration of whether the alleged conduct was taken because of a prohibited reason.

2. (ii)
   Admissibility of Mr Dwyer's Affidavit

164. [164]
     Although Mr Dwyer's affidavit is not said by the Respondent to be a collateral issue in the sense that it is said to be prohibited conduct, it is included under this heading because the Applicant contends it is inadmissible.  This matter needs resolution as the parties have differing views on its relevance to the proceedings.

165. [165]
     Ms Parer claims that Mr Dwyer's affidavit does not demonstrate how the evidence is part of the chain upon which the Respondent relies.  It is submitted that his evidence is only relevant or can be afforded any weight if a witness from Crown Law, viz., Ms Freemantle, had given evidence about how the information from Mr Dwyer was used to formulate the allegations against Ms Parer.  His affidavit is inadmissible because it does not concern Ms Parer and there is no evidence of a subsequent chain of communication from Ms Freemantle to any other person.

166. [166]
     As a result, Ms Parer contends that the consequence of relying on Mr Dwyer is that anything he said was mediated through Ms Fremantle to the decision makers.  It adds to the case of the existence of a proscribed reason and reinforces the Jones v Dunkel inferences arising from the failure to call Ms Freemantle.

167. [167]
     In the Applicant's reply submissions, an attempt is made to cast doubt on the reliability of Mr Dwyer's evidence because of the omission of any reference to the Sorbello reports.  It is submitted that Mr Dwyer did not follow up on his concerns and any concern about whether the complaints about Mr Weston had substance as he claimed was feigned.

168. [168]
     The Respondent rejects the Applicant's submissions in their entirety.

169. [169]
     The admissibility of Mr Dwyer's affidavit was the subject of an objection from the Applicant during the proceedings.  The Commission provided its view that parts of the affidavit were admissible.  Mr Murdoch QC subsequently informed the Commission that the parties had agreed that Mr Dwyer's affidavit would be admitted and the Applicant would make submissions about parts of the affidavit in closing submissions.  Mr Dwyer's affidavit was marked as an exhibit.  That Mr Dwyer's affidavit was admitted on this basis and marked as an exhibit means that it is before the Commission and is available for consideration.  Thus the argument concerning the admissibility of this affidavit is rejected.

170. [170]
     The weight which should attach to the affidavit is a different question.

171. [171]
     Firstly, it is important to record that the Applicant did not require Mr Dwyer for cross‑examination.  His evidence is therefore not contradicted about the actions taken by QGIF in relation to Mr Weston's handling of various QGIF files and the reasons for those actions.  He also gives evidence about the conversations he had with Ms Freemantle and attaches emails between them to his affidavit.  These factors lead me to conclude that Mr Dwyer's evidence should be given weight in respect of the actions taken by QGIF in respect of Mr Weston and the reasons therefor.  Because of this, it also provides context to the origins of the review of Mr Weston's files, both internally and externally, and sheds light on the relationship between the reviews and Ms Freemantle's comment.

172. [172]
     It is appropriate to deal with Mr Dwyer's evidence now before considering the four allegations of prohibited conduct.

173. [173]
     Mr Dwyer said (prior to 2015) that he had concerns about Mr Weston's work performance in relation to QGIF files that he had raised with Crown Law.  In or around March 2015, he overheard one of his staff expressing concern about Mr Weston's handling of a current QGIF file, the M# file.  After speaking to her about these concerns, he was worried that the same issues that had previously been raised about Mr Weston were recurring.  He encouraged his staff member to raise her concerns with her manager and he also spoke to the manager.  Mr Dwyer suggested that the concerns should be raised with Ms Parer.  He also asked the manager to undertake a quick file review of other QGIF files being handled by Mr Weston.

174. [174]
     Mr Dwyer was copied in on the email exchange between the QGIF manager and Ms Parer.  As set out earlier, Mr Dwyer then initiated contact with Ms Freemantle on 19 March and subsequently sent her an email regarding the M# file and the other files about which QGIF had concerns.

175. [175]
     Mr Dwyer also asked another QGIF staff member to undertake a detailed review of four particular files being handled by Mr Weston.  On 7 April 2015, he sent Ms Freemantle an email summarising QGIF's concerns about those files.  In early May, a further file of concern came to light.  He asked the staff member to also review this file and advised Ms Freemantle of this on 4 May 2015.

176. [176]
     In his affidavit, Mr Dwyer states he vaguely recalled comment made by Ms Freemantle at the meeting on 18 February and does not recall repeating it to anyone at QGIF.  He said it did not cause him to think any less of Mr Weston's work performance.  He was only prompted to raise complaints regarding Mr Weston's performance when it became apparent several weeks later that his concerns were still valid because of the issues that arose between March and May and then only because he overheard one of his staff identifying issues.

177. [177]
     Conclusion:  Much of the focus of the Applicant's submissions is the evidentiary links said to be missing from the Respondent's case.  However, by its attacks on the admissibility and the relevance of Mr Dwyer's affidavit, the Applicant seeks to "airbrush out", to use the description given by the Respondent, the important evidentiary links that start the chain.

178. [178]
     Mr Dwyer's affidavit is both admissible and relevant.

3. (iii)
   The Engagement of Ms Sorbello and her Reports

179. [179]
     The Respondent contends that the commissioning of the reports was not prohibited conduct and is therefore a collateral issue.

180. [180]
     In Part VI of the Particulars of the application, Ms Parer sets out a number of inferences that are said to support the conclusion that prohibited conduct was taken against her for a prohibited reason.  A number of inferences were made in relation to Ms Sorbello and her review but were not pursued.  The remaining inferences are that:

181. [181]
     These matters are considered below albeit under different headings.

182. [182]
     Why was Ms Sorbello engaged?:  Ms Parer was unaware that Ms Sorbello had been briefed and submits that the Commission should find that the briefing of Ms Sorbello was deliberately concealed from her.  Further, in her written reply submissions, Ms Parer notes that Mr Dwyer's affidavit does not mention that Ms Freemantle discussed with him on 1 April the results of her review of the M# file or being advised of the outcome of the review undertaken by Ms Sorbello.  She submits that these omissions show that Ms Sorbello was not engaged to pacify the client or assess its concerns but to lay the ground work for the disciplinary case. 

183. [183]
     The day after the meeting on 25 March, Ms Freemantle sent an email to Ms Parer asking her to review not only the M# file but all of the other files mentioned in Mr Dwyer's email of 23 March.^[34]  Ms Parer was absent from work on sick leave the day the email was sent and was subsequently absent on a combination of sick leave and other leave.  She returned to work on 20 April.

184. [184]
     Given Ms Parer's absence, it was necessary for the file reviews to be undertaken.  The QGIF complaints could not be allowed to drift.  Ms Freemantle reviewed the M# file.  She found Mr Weston's performance to be unsatisfactory.  Ms Freemantle's file review was completed around the same time as Mr Weston lodged a grievance about Ms Freemantle.  Ms Cubby's evidence is that Ms Freemantle was advised of the grievance on 8 April.  Because of the time involved and the need for transparency, Ms Cubby decided, on the suggestion of the Crown Solicitor, that an external review of the files should be undertaken.

185. [185]
     It is clear from Ms Freemantle's email that Ms Parer was to be involved in the file reviews following the QGIF complaints.  However, Ms Parer was suspicious about the reason for the file reviews as she believed they stemmed from Ms Freemantle's comment on 18 February and at all times has refused to accept the complaints, which led to the reviews, were unprompted.  This view is set out in Ms Parer's email to Ms Cubby and Ms Freemantle of 23 March, reiterated in her email to Ms Cubby the following day and in her complaint lodged against Ms Freemantle on 14 April.

186. [186]
     It is further illuminated in her cross-examination.  Ms Parer accepted where a complaint had been lodged in relation to a personal injury, the manager of the lawyer responsible for the file should be involved in the complaints management process.  However, her evidence made clear that she was not convinced of the merits of the review of Mr Weston's files.  She was concerned about the reasons the review was being undertaken when complaints on other lawyers' files had not resulted in a complete review of their file load.  Although she reluctantly accepted that the decision had been made at the meeting of 25 March for her to review the M# file at least, the following exchange in cross-examination is instructive:

"Okay.  And if this files were to be reviewed, on your evidence, you were the appropriate person to do it? -- If I was going to agree to it.  Yes.

Sorry, if you were going to agree to it? - I had expressed concerns at the meeting about undertaking a review of an entire lawyer's files with one complaint when we weren't doing it with all of the others.  At this stage that issue, as far as I was concerned, hadn't been resolved."^[35]

187. [187]
     Despite Ms Parer's reservations and her reference in her evidence and emails to "one complaint", by the time of the meeting on 25 March she was aware of Mr Dwyer's email on 19 March listing 12 additional files of concern.  In addition, she was aware from her own research that Mr Weston had previously been the subject of a complaint from QGIF resulting in an audit of his files by her predecessor.

188. [188]
     The selection of Ms Sorbello occurred when Ms Parer was on leave.  However, once Ms Parer's complaint had been lodged on 14 April, which expressed her concern about "the possible correlation" between Ms Freemantle's comment and the file review, it was no longer appropriate for Ms Parer to continue to be involved in the management of the QGIF complaints.

189. [189]
     Ms Sorbello was admitted as a solicitor in December 2001 and called to the Bar in February 2012.  She is an Accredited Specialist in Personal Injuries and as a barrister has maintained her specialist accreditation.  In her work as a solicitor, Ms Sorbello had extensive experience in personal injuries.  Ms Sorbello also had been regularly required, while working as a solicitor, to undertake both internal and external file reviews.

190. [190]
     It is to be noted that in cross-examination Ms Parer accepted Ms Sorbello was qualified to complete the review.

191. [191]
     Before Ms Sorbello was retained she was asked whether she had any conflict in taking the instructions.  She provided a verbal negative response although she disclosed she had been previously instructed by Mr Weston on one matter.  Ms Sorbello advised that Ms Parer may have briefed her on one or two matters and recalled some, minimal involvement with her while practising as a solicitor.  Ms Sorbello completed a conflict check in relation to the five files she was to be asked to review and advised she did not have any conflict.

192. [192]
     When was Ms Sorbello engaged?:  Ms Parer raises an issue about when and by whom Ms Sorbello was retained.  Ms Sorbello gave evidence that she had a telephone conversation with Ms Hamilton on 13 April and she could not recall whether she was returning a call from the previous Friday (10 April).  Ms Cubby says she received Ms Freemantle's report and instructed Ms Watson and Ms Hamilton to ascertain an independent person to undertake the remaining reviews on the same day - 13 April.  Ms Cubby made the decision to retain Ms Sorbello on 14 April. 

193. [193]
     Whether or not Ms Hamilton had pre-empted Ms Cubby's instruction by contacting Ms Sorbello on 10 April is irrelevant.  It was Ms Cubby who had the financial delegation and only she could make the decision to retain Ms Sorbello.

194. [194]
     When did Mr Weston and Ms Parer become aware of Ms Sorbello's engagement?:  Ms Parer contends that Ms Sorbello was engaged to undertake a secret investigation.  This is denied by Ms Sorbello who said that she was retained to undertake a review "on the papers" and she considered that it was unnecessary to speak to Mr Weston or anyone else regarding the issues.

195. [195]
     Ms Cubby's evidence is that she intended to inform Mr Weston that some of his files were being reviewed at a meeting on 15 April.  He had previously been on recreation leave from 7 to 10 April and had taken five days sick leave between 26 March and 2 April.  Mr Weston declined to attend the meeting.  Following this, Ms Cubby wrote to Mr Weston on 15 April advising that Crown Law had decided to conduct an independent review of his files as a result of the QGIF complaint.

196. [196]
     Ms Parer was aware that file reviews were to be conducted.  Indeed, she was the person who was to undertake them.  However, her absence on leave precipitated other action being taken given the complaints from QGIF had been around for some weeks.  Ms Parer ultimately became aware of Ms Sorbello's involvement in September 2015.

197. [197]
     What was Ms Sorbello retained to do?: The briefing instructions given to Ms Sorbello were to review the subject files and to draft a report.  The focus of the review was to ascertain whether there had been any irregularities or deficiencies in Mr Weston's conduct of the files.  In so doing, she was instructed to have regard to matters concerning, but not limited to client service, file administration and procedural matters.  She did not analyse the quality of Mr Weston's advice.

198. [198]
     Ms Sorbello said she requested and reviewed the "PIPA precedent suite" for Crown Law.  She did not consider it necessary to conduct an investigation into particular Crown Law practices because of the nature of her brief, viz., to identify whether there had been any irregularities or deficiencies.

199. [199]
     What findings did Ms Sorbello make?:  Before turning to her findings, it is useful to explain the structure and content of her reports.  The structure is reasonably consistent across her reports.

200. [200]
     In her first report, Ms Sorbello sets out her qualifications and experience.  In that and her other reports she then lists the files she was asked to review and identifies with respect to each of the files common deficiencies in the conduct of them.  Ms Sorbello provides an explanation of the State's obligations under PIPA in clear and concise terms.  In relation to other conduct deficiencies she provides lists of instances where the deficiencies are said to have occurred.  These are set out under four headings - date, event, time charged and comment.  Where she did not have the particular Crown Law practices before her, she used the expression, "it appears" in relation to these matters in her reports.

201. [201]
     The findings set out in the first and subsequent reports are reasonably consistent.  It is unnecessary to set out those findings in detail given Mr Weston is not a party to these proceedings.  However, in general terms the findings were serious, addressing Mr Weston's professional practice in a number of areas.

202. [202]
     How was Ms Parer drawn into the review?:  The review undertaken by Ms Sorbello did not encompass Ms Parer.  Her instructions were clear: to consider Mr Weston's conduct in relation to the nominated files.

203. [203]
     Ms Sorbello believes she received a telephone call from Ms Hamilton after she provided her first report.  The purpose of the inquiry was to ascertain whether she could provide any comments regarding Ms Parer's supervision of Mr Weston in his conduct of the files she had reviewed.  Ms Sorbello informed Ms Hamilton that it appeared Ms Parer had signed off on some invoices where the claimed time was in issue but that she had not reviewed the files with the view to considering the adequacy of Ms Parer's supervision and could not make any comment on this.

204. [204]
     Ms Parer is not mentioned in Ms Sorbello's reports for the reason that her retainer was to undertake reviews of files for which Mr Weston had responsibility.  However, Ms Parer became embroiled once the reports were delivered to Crown Law.

205. [205]
     Consideration:  In my view, the inferences that Ms Parer seeks the Commission to draw in relation to Ms Sorbello are refuted by the evidence.  Specifically, the conclusion drawn by Ms Parer that Ms Sorbello's review was not undertaken for legitimate reasons is rejected. Ms Cubby explained the reason for commissioning the Sorbello reports.  An external review was necessary given the complaints made by QGIF, the major client of Crown Law, to understand whether there was any validity to them and in circumstances where Ms Parer was on leave and Ms Freemantle was compromised because of Mr Weston's grievance.  It may have been an unusual course of action to take but Ms Cubby was faced with unusual circumstances.

206. [206]
     There was no obligation to inform Ms Parer on her return to work what had been done in her absence in relation to the file reviews, although it may have been sound practice to do so as it was work Ms Parer had originally been asked to undertake.  In any event, Mr Weston - at that time the Crown Lawyer directly affected - was informed of the matter on 15 April.

207. [207]
     Ms Sorbello conducted a review on the papers as she was briefed to do.  Because of this, it was unnecessary for her to conduct further investigations or to seek to interview any Crown Law or QGIF staff.  It was not a secret investigation.

208. [208]
     The Commission accepts that the commissioning of the Sorbello reports is a collateral issue and was not prohibited conduct.

9. WHO MADE THE IMPUGNED DECISIONS?

209. [209]
     The evidence does not disclose how it was decided that a disciplinary process in respect of Mr Weston should commence.  Moreover, it does not disclose how a disciplinary process against Ms Parer came to be commenced and why and by whom the decision was taken.  The parties have opposing views on the relevance of these matters.

210. [210]
     A critical contention in the Applicant's case is that persons within Crown Law were the true decision makers, the driving force for the conduct.  That the Respondent failed to adduce evidence from these persons is a missing evidentiary link with the result that the Respondent has failed to satisfy the reverse onus.  In making this submission, Ms Parer draws on common law concepts of rubber stamp decision making, innocent instrument or agent and wilful blindness.  Ms Parer cites the following authorities to explain the common law concepts:

Rubberstamp:  "[i]f the actual decision maker simply 'rubber stamps' a decision in fact made by another, the purpose of that other will be a substantial operative factor."^[36]  The concept of "rubber stamping" was used by Evatt J in Voigtsberger v Council of the Shire of Pine Rivers (No 2).^[37]

Innocent instrument or agent:  "It is well settled at common law that a person who commits a crime by the use of an innocent agent is himself liable as a principal offender.  That is so not only where the agent lacks criminal responsibility … but also where the agent … is innocent of the true facts and believes that what he is doing is lawful."^[38]

Wilful blindness:  submits this "describes the act of a person who, in an attempt to avoid civil or criminal liability for a wrongful act, intentionally puts himself or herself in a position to be unaware of facts which create liability."  Ms Parer relies on the decision in Fightvision Pty Ltd v Onisforou^[39] for this concept.

211. [211]
     The Applicant further submits that the Respondent has not rebutted the presumption if it cannot show that these were not features of the decision making; does not establish the true identity of the decision maker(s) and called them to give evidence.  The enquiry to be made by the Commission remains focussed on the evidence that the Respondent is required to produce.  Ms Parer refers to the decision in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1]^[40] (Barclay), which establishes that:

"The question is one of fact, which must be answered in light of all of the facts established in the proceeding."^[41]

Further, the focus is on the reasoning process.^[42]

212. [212]
     In relying on this decision, the Applicant submits that there was no real reasoning process undertaken by either Mr Rallings or Ms McDermott.  Neither of them could have made their decisions except for the material that Crown Law put before them.  She argues that the failure to establish the driving force for the conduct and the failure to call the driving force to give evidence is a failure to rebut the presumption.

213. [213]
     The Applicant refers to a range of cases to support her contention that where other than the putative decision maker made the decision and that person was not called to give evidence, the courts have held that the employer had failed to rebut the presumption.  Two cases in particular are relied on:  National Tertiary Education Union v Royal Melbourne Institute of Technology^[43] (NTEU v RMIT) and Elliott v Kodak Australasia Pty Ltd^[44] (Elliott).

214. [214]
     In NTEU v RMIT, Gray J noted that Barclay involved a single decision maker but earlier authorities had considered cases where more than one person was possibly involved in the making of the decision.  In those cases, the decision was made by a committee or other deliberative body or where there was collaboration between officers of an employer at various levels of the hierarchy leading to an ultimate decision.  He then said:

"It is often the task of a court to make a finding as to the minds of which natural person or persons constitute the directing mind and will of a corporate body, for the purpose of determining the state of mind of the corporate body.  Sometimes, the question is as to the knowledge of the corporate body.  As Brennan, Deane, Gaudron and McHugh JJ said in Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 583:

 'A division of function among officers of a corporation responsible for different aspects of the one transaction does not relieve the corporation from responsibility determined by reference to the knowledge possessed by each of them.'

The same can be said of states of mind other than knowledge, such as reason or intent."^[45]

215. [215]
     In Elliott, the Full Court of the Federal Court was considering a case where two supervisors, Mr Lay and Mr Shannon, made assessments of employees for redundancy using certain criteria.  Mr Elliott was selected.  The manager of Kodak, Mr Walshe, then made the ultimate decision to terminate Mr Elliot's employment.  The Court stated:

"It follows that if the Lay/Shannon assessment is affected (or infected) by either Lay or Shannon having held an undisclosed prohibited reason, then he would have, in effect, inadvertently adopted it so that its force continued regardless of the lack of any express prohibited reason in the mind of Walshe."^[46]

216. [216]
     The Respondent rejects Ms Parer's submissions arguing that none of the evidence suggests anyone, other than Mr Rallings or Ms McDermott, made any decisions of substance.  This is said to be demonstrated by the fact that in respect of each decision, each of Mr Rallings and Ms McDermott were provided with and considered not only a draft piece of correspondence but also the source material in determining whether or not to make the decisions under the relevant provision of the PS Act.  In the Respondent's submissions, the evidence shows that Mr Rallings and Ms McDermott were not rubber stamping or adopting the reasoning process of others.  Rather, they were considering the material themselves, and making a decision, using, to the extent they considered appropriate, a draft prepared by others to communicate that decision.

217. [217]
     In Construction, Forestry, Mining and Energy Union v Clermont Coal Pty Limited,^[47] Reeves J was considering a case where the CFMEU Lodge President had been dismissed.  Two supervisors had been involved in an assessment of employees for redundancy but the ultimate decision was made by the manager.  Reeves J noted that the authorities placed the focus of the inquiry by the court on the reasoning process that led to the ultimate decision.  He said that was reasonably straightforward where there was only one decision maker but more complex where the reasoning process was dispersed through an assessment process involving a number of persons.^[48]  Given the nature of the matter before him, Reeves J considered that the scope of the inquiry he needed to undertake involved a two-step process.  First, an inquiry was to be made to ascertain whose reasons had a material effect on the reasoning process that preceded the manager's decision to dismiss the CFMEU Lodge President.  The second step was to inquire into the reasoning of those persons to ascertain whether it was affected by a prohibited reason.

218. [218]
     In the present matter, where Ms Parer alleges the driving force and the true decision maker in the case were persons in Crown Law, the first step of the inquiry is to examine the respective roles played by Crown Law officers, Mr Rallings and Ms McDermott in the decision making process.  This is to ascertain whose reasons, if any, had a material effect on the reasoning process that preceded the decisions to engage in the impugned conduct.  Before doing so I will review the evidence as it relates to both parts of the inquiry.

1. (i)
   The involvement of Crown Law in the process

219. [219]
     The Applicant's contentions:  The claims Ms Parer makes against Crown Law were set out earlier.  These are in effect that Crown Law was in charge of the process, acting deliberately in controlling the information provided to Mr Rallings and Ms McDermott with the result that they were not in possession of all relevant information and were thus unable to make independent decisions.  In this regard she alleges that Mr Rallings and Ms McDermott "rubber-stamped" the decisions or were otherwise "wilfully blind" or "innocent instruments or agents".

220. [220]
     Ms Parer is critical of the absence of direct evidence about the "information barriers" established by Crown Law to separate the complaint process from the discipline process. Ms Parer further contends that Ms Freemantle, Ms Kane and Ms Black could have given evidence swearing that the actions against her were not for prohibited reasons.  They could have also given evidence about the information and advice given to Mr Rallings and Ms McDermott. Ms Watson and Ms Hamilton could have given evidence explaining the actions of Crown Law.  In her submission it was one or more of Ms Freemantle, Ms Kane and Ms Black who were the principals in prosecuting the prohibited conduct and this was for a prohibited reason.

221. [221]
     Ms Parer is also critical of the Respondent for failing to produce documents she claims to be relevant to the proceedings.  The failure to call these witnesses and to produce these documents leaves the Commission open, it is submitted, to draw an adverse inference in accordance with Jones v Dunkel.  Moreover, these omissions are yet more missing evidentiary links.

222. [222]
     The Respondent's contentions:  The Respondent rejects Ms Parer's submissions and contends there is no evidence of reprisal from any Crown Law officer and no actual conflict in existence.  The Respondent submits that the separation of the Crown Law officers giving advice on the complaint from those advising on the disciplinary process was a prudent measure implemented to maintain independence.  The Crown Law officers were giving advice in their capacity as solicitors and the evidence given by the Respondent's witnesses shows that they received legal advice.  Further, Ms Parer has not suggested any apparent reason that Ms Watson, Ms Hamilton, Ms Kane or Ms Black would be motivated by reprisal and there is no material which might support such inferences being drawn.

223. [223]
     The Respondent rejects that any adverse inference can be drawn by the absence of evidence from Ms Freemantle because the decisions of Mr Rallings and Ms McDermott were not shown to be based on any conclusion of Ms Freemantle nor was it shown that she was involved in communicating with them or advising them.

224. [224]
     The Respondent also submits that the impugned conduct did not occur in the preparatory phase which was when Crown Law was involved.  The role of Crown Law was to assemble material and draft correspondence that the decision maker could use if the decision maker reached a particular decision.  The impugned conduct occurred in the substantive phase, that is, when the decision makers were making their decisions.

225. [225]
     How did the Crown Law Workplace Law teams become involved?:  On 23 March, Ms Parer forwarded Mr Weston's email querying the scrutiny he was under by QGIF to Ms Cubby and requested to speak to OD and a workplace lawyer about the best way to proceed.  As a result of that request, Ms Cubby arranged a meeting on 25 March which Ms Watson and Ms Hamilton attended.  Ms Watson was in charge of the Public Law branch which included the Workplace Law teams.  Ms Cubby said Ms Hamilton was present as she would have carriage of any matter relating to Mr Weston's performance.

226. [226]
     The performance management of Mr Weston was discussed at the meeting and Ms Parer was reminded of her managerial responsibilities in this respect.  Further, the review of the M# file was discussed as were the other files about which QGIF had complained.

227. [227]
     It is unnecessary to repeat the earlier explanation of the reason Ms Cubby decided that the other file reviews should be undertaken externally and how the selection of Ms Sorbello came to be made. 

228. [228]
     During the week of 1 June, Mr Woods was informed by Ms Kane of the matters involving Ms Parer and Mr Weston and was further informed that she and Ms Black had been retained to commence advising on the potential disciplinary action.  As noted earlier, the suspension and disciplinary processes stemmed from the receipt of the Sorbello reports.

229. [229]
     Mr Woods' evidence is the Workplace Law team of Crown Law is regularly briefed to provide legal advice or act as legal representatives for the Respondent in employment issues including performance and disciplinary processes.  While Crown Law generally acts independently in relation to human resources issues, it approaches the Department when complex management issues arise or a significant workplace injury to an employee occurs.

230. [230]
     How did the Workplace Law team lawyers become involved?:  It is clear from the evidence of Ms Cubby that she gave instructions to Ms Watson and Ms Hamilton in relation to preparing a response to Mr Weston's initial grievance and to ascertain appropriate and available external counsel for the independent file review. 

231. [231]
     There is no evidence as to who told Ms Kane and Ms Black to seek instructions on the disciplinary process.  It was not Ms Cubby as she said she was unaware of what aspects of the employment matters Ms Black was dealing with.  It was also not Mr Woods as he had been unaware of any issues concerning Ms Parer before being contacted by Ms Kane.  Mr Woods' evidence is that Ms Kane had spoken with Mr Loof about who should provide instructions in relation to the disciplinary process.

232. [232]
     Given that Ms Watson was in charge of the two Workplace Law teams, it is likely that she made the decision to separate the complaint process from any disciplinary process and advised her staff to seek separate instructors.  On that basis, Ms Kane initiated contact with Mr Loof.

233. [233]
     Who decided on the information barriers and when were they constructed?:  During Mr Woods' telephone conversation with Ms Kane, he was advised that information barriers had been constructed by the Workplace Law teams to keep separate the grievance/complaint management processes and the potential disciplinary processes.  The Commission did not hear any evidence about who decided such barriers should be constructed, when they were constructed and how the barriers were to work.

234. [234]
     What did the Workplace Law team lawyers do?:  Ms Kane and Ms Black were responsible for dealing with the disciplinary process relating to Ms Parer.  Mr Woods' evidence is that he took advice from and gave instructions to them.  Each of Mr Rallings and Ms McDermott received advice from and provided instructions to Ms Kane and Ms Black through the conduit of Mr Woods.

235. [235]
     The evidence also establishes that Ms Kane and Ms Black drafted correspondence such as the letter of suspension and the correspondence with SMA.  They were also involved in preparing the show cause notices and assembling the material for Mr Rallings' and Ms McDermott's consideration.  However, the briefing memorandum attached to the draft second show cause letter submitted to Ms McDermott from Mr Woods states that it was settled by external counsel.

236. [236]
     Ms Hamilton was involved in the matter concerning Mr Weston's performance.  She conveyed Ms Freemantle's report on the M# file to Ms Cubby and contacted Ms Sorbello.  There is no evidence that Ms Hamilton was involved in the disciplinary issues involving Mr Weston or Ms Parer, although she contacted Ms Sorbello to enquire about whether the file reviews identified any issues about Ms Parer's supervision of Mr Weston.

237. [237]
     What was Ms Freemantle's role?:  Ms Freemantle was involved in the review of the M# file.  There is no evidence about whether she had any other involvement in the disciplinary process, although Ms Parer invites the Commission to draw this inference.

238. [238]
     Claims of legal professional privilege and other documents not produced:  Ms Parer also claims that certain documents were not produced in evidence.  The failure of the Respondent to produce the relevant documents should lead the Commission to conclude that none of this evidence would have assisted the Respondent's case.  It is convenient to deal with this issue at this point.

239. [239]
     Proceedings occurred before Deputy President Kaufman regarding the Respondent's claim for legal professional privilege over a significant number of documents.  The outcome of those proceedings was that the Respondent was successful in claiming privilege over most of those documents.  However, Ms Parer was invited to make further challenges to the Respondent's claim for legal professional privilege during the substantive proceedings where she believed privilege had been waived.

240. [240]
     Despite that ruling, Ms Parer contends that the Respondent has chosen to refrain from producing evidence that might have explained the decision making process.  She submits that an adverse inference can be drawn from its refusal to adduce such documents but more importantly it means that the Respondent is unable to discharge its onus.

241. [241]
     In response, the Respondent submits that although Ms Parer raised the issue of making a challenge to legal professional privilege on the grounds that privilege had been waived, no such challenge eventuated.   The Commission should treat the matter of legal professional privilege as valid and settled and the Respondent should not be subject to adverse inferences for relying on privilege to not disclose privileged communications.

242. [242]
     The Commission accepts the Respondent's submissions on this point.  The question of legal professional privilege was dealt with in the proceedings before Deputy President Kaufman and a further opportunity to challenge the waiver of privilege was given but not taken up.  In the circumstances it is not appropriate for the issue of an adverse inference to have been raised.

243. [243]
     The Applicant made other oral applications for certain documents to be admitted.  For reasons given in my decision on 5 August 2016,^[49] those applications were ultimately refused.  That matter should not now be revisited.

2. (ii)
   The role and reasons of Mr Rallings

1. (a)
   The first instance of alleged prohibited conduct:  The suspension conduct

244. [244]
     Ms Parer attacks Mr Rallings' decision to suspend her on many fronts.  These attacks include that the decision was made in haste; that he made the decision without evidence and he did not properly consider whether alternative duties were available.

245. [245]
     What information did Mr Rallings consider?:  Mr Woods is an experienced human resources practitioner within the Queensland Public Service.  He explained the Respondent's usual process when serious allegations are raised about an employee and suspension is likely.  A brief is sent to the decision maker as this is usually the first time the decision maker has become involved in the matter.  The briefing memorandum contains some factual information and attaches a draft suspension notice and any other relevant material.

246. [246]
     In this case, Mr Woods provided the following information to Mr Rallings in order for him to make the decisions about whether Ms Parer and Mr Weston should be suspended:

1. (i)
   his briefing memorandum dated 12 June 2015, attaching a copy of Ms Parer's Position Description;
2. (ii)
   a draft of Ms Parer's suspension letter;
3. (iii)
   a draft of Mr Weston's suspension letter;
4. (iv)
   a copy of Ms Sorbello's first report; and
5. (v)
   a copy of the signed delegation instruments.

247. [247]
     Mr Rallings gave evidence that he is an experienced decision maker in relation to suspensions and disciplinary processes given his role as Commissioner of QCS.  He holds delegations from the Director-General in respect of QCS on an ongoing basis.  He is responsible for approximately 4000 QCS employees and at any given time would be dealing with 25-30 disciplinary matters.

248. [248]
     Mr Rallings explained he employed his usual practice when making any decision concerning suspension or discipline in that he:

249. [249]
     Mr Rallings confirmed in his oral evidence that he employed this practice in relation to his decision to suspend Ms Parer.

250. [250]
     In his affidavit, Mr Rallings recalled that he read the briefing memorandum several times and carefully reviewed the first Sorbello report.  He had to work his way through the report to ensure that he "properly understood and was satisfied as to the matters (he) needed to consider to reach a decision on whether or not to suspend".  He also recalled that he had a good opportunity to review that report as he had no meetings that afternoon.  He took some time to come to a decision.

251. [251]
     What were the reasons for the decision?:  Ms Parer submits that Mr Rallings made the decision to suspend without any evidence.  Reference was made to his evidence that he made no inquiries and had no information before him except Ms Parer's Position Description and the first Sorbello report which did not mention her.  Further, the briefing note does not advance the case.

252. [252]
     The briefing memorandum was prepared by Mr Woods from information provided by Crown Law and the draft suspension letters and the delegation instruments were prepared by Crown Law.  Mr Woods agreed under cross-examination that he was the sole conduit between Crown Law and Mr Rallings; acting as an intermediary between Mr Rallings and Crown Law.  His role included checking documents for correctness and completeness, e.g., that the attachments were included; that statutes were correctly referenced and that dates in documents were correct.  It was not his role to check the specific content of the material to be put before Mr Rallings.

253. [253]
     The briefing memorandum provided the background to the request for consideration of suspension from duty.  Reference was made to the complaints by QGIF about Mr Weston's conduct of files and the file review undertaken by Ms Sorbello.  It then listed issues relevant to Mr Weston.  In relation to Ms Parer, reference was made to her position and responsibilities including the oversight of files conducted by lawyers in her team and the sign off of each advice and the tax invoice issued.

254. [254]
     In his affidavit, Mr Rallings said the sole reason he decided to suspend Ms Parer is set out in her suspension letter.  That letter provides scant information.  After advising Ms Parer of her suspension, referencing ss 189 and 190 of the PS Act and stating that he held the relevant delegation, Mr Rallings said:

"Whilst at this stage I have formed no view specifically regarding your conduct, on a preliminary consideration of the material before me, I reasonably believe you may be liable for disciplinary action."

255. [255]
     Mr Rallings did not disclose that he had a report from a barrister about Mr Weston's management of a file. He simply indicated that the suspension would remain in place while he had the opportunity to consider all the information before him and determine an appropriate course of action, unless otherwise determined.

256. [256]
     Mr Rallings' evidence is that he was satisfied that the matters raised by the Sorbello report were serious, going to both Mr Weston's performance and conduct and Ms Parer's performance and conduct in her capacity as his supervisor.  He formed the view based on the material before him that both Ms Parer and Mr Weston might be liable for discipline under the PS Act and, given the nature of the allegations, it would be inappropriate for them to continue in their positions.

257. [257]
     Mr Rallings was cross-examined about the reasons he decided to suspend Ms Parer.  He acknowledged that Ms Parer is not mentioned in the first Sorbello report and it identified that Mr Weston was directly responsible for the conduct of those files.  However, Ms Parer's position description showed she had responsibility not only for the direct supervision of Mr Weston but also responsibility for his files.  Taking those matters into account, Mr Rallings believed that he had grounds for disciplining Ms Parer and so decided to suspend her.

258. [258]
     Mr Rallings was pressed in cross-examination about what Ms Parer's failings were that caused her suspension.  He said he did not have any views about her failings but was concerned about the seriousness of the matters raised in relation to the files.  He understood she had responsibility for the "oversight, day-to-day supervision, management" of the files.

259. [259]
     Did Mr Rallings give proper consideration to alternative positions?:  Mr Rallings also addressed in his affidavit his consideration of whether alternative duties were available for Ms Parer in line with the requirements of s 190 of the PS Act.  Given his views about Ms Parer's performance and conduct in relation to Mr Weston's files and her position of ACS, he concluded there were no alternative duties she could perform.  He also believed that administrative duties would not be suitable for her as any action would be punitive because any positions were not commensurate with her experience and substantive professional role.

260. [260]
     Under cross-examination, Mr Rallings could not identify any particular legal position he considered for Ms Parer to perform because he believed no such position would be appropriate given the seriousness of the matters raised in the first Sorbello report.  He said his view about her ability as a lawyer was based on the position that she held.  He did not make any inquiries as to whether she had her own files and could have continued to manage some of her own rather than being suspended.  Mr Rallings said he did not consider it was appropriate for her to work in her substantive position or any other legal positions based on the information he had.

261. [261]
     Ms Parer submits that Mr Rallings evidence given under cross-examination about considering alternative positions cannot be believed.  On receipt of the correspondence from Mr Rallings suspending Ms Parer, SMA wrote to him about a number of matters and requested a copy of the record retained by him regarding his consideration of alternative duties.  Mr Rallings replied stating that he did not accept that SMA was entitled to this record.  Under cross-examination Mr Rallings conceded that no such record was made.  He accepted the letter to SMA was misleading.

262. [262]
     Mr Rallings explained that on receipt of this (and other) correspondence from SMA he referred the drafting of a response to Mr Woods who had also received the letters.  This was because the matters raised were "technical legal and DJAG policy/procedure issues".  The evidence from Mr Woods is that the response was drafted by Crown Law.

263. [263]
     Was the decision made in haste?:  Mr Rallings was briefed by Ms Kane and Mr Woods on 12 June, the day of the suspensions, at about 11.00 am.  Mr Woods said Ms Kane explained to Mr Rallings the background of the matter, his role as the decision maker and that he would need to consider the legislation, the facts of the matter and the materials before him.

264. [264]
     Mr Woods' evidence is that the briefing of Mr Rallings by Ms Kane and himself commenced at about 11.00 am and lasted until approximately 11.50 am.  He also said at about midday on 12 June he enquired as to whether Mr Weston and Ms Parer were in their offices as the suspensions were to be effected then if they were present.

265. [265]
     Mr Rallings' evidence does not refer to being briefed by Crown Law.  He said "the whole process" for both Ms Parer and Mr Weston, that is, reading the Sorbello report, the briefing memorandum, considering whether alternative duties may be available and deciding whether suspension was the appropriate course of action, "took an hour."

2. (b)
   The second instance of alleged prohibited conduct:  The first show cause conduct

266. [266]
     What information did Mr Rallings consider in deciding to proceed with the first show cause letter?:  Mr Woods said he had not discussed Ms Sorbello's further reports with Crown Law and had provided them to Mr Rallings direct.  Mr Rallings received them in late July or early August.  After he read them, he advised Mr Woods that he had decided to proceed to commence a disciplinary process.  His email to Mr Woods of 3 August is that he would call tomorrow "about his position".  Under cross‑examination he denied that he asked Mr Woods about likely next steps after reviewing the Sorbello reports, which was Mr Woods' evidence.  Mr Woods said Mr Rallings wished to get it clear in his mind that the process would follow its usual course.

267. [267]
     Mr Rallings asked Mr Woods to have the show cause letters prepared.  Mr Rallings said under cross-examination that he did not know who had drafted the show cause letters.  The show cause letter received by Ms Parer on 4 September 2015 was undated.

268. [268]
     Mr Rallings said in cross-examination that he could not recall how much time he spent in reviewing the show cause letter but had spent "considerable" time reviewing the attachments to the letter.  He explained that "considerable" meant several hours at least.

269. [269]
     What were his reasons to issue the first show cause?:  In his affidavit, Mr Rallings said he reviewed the draft show cause letter and the attachments.  He was satisfied the allegations that had been drafted for his consideration were appropriate and able to be supported on the materials before him.  In particular, the Sorbello reports did not refer to isolated performance concerns but rather contained findings that appeared to establish a pattern of conduct for both Mr Weston and Ms Parer.

270. [270]
     Mr Rallings was cross-examined in some depth about how he decided to issue the show cause to Ms Parer when the allegations against her stemmed from Mr Weston's management of the files.  Mr Rallings' answers were consistent with his affidavit evidence as well as his evidence about the reasons he concluded to suspend Ms Parer, that is, there were common facts but differences in the responsibility of managing the files.  He gave examples that Ms Parer would be responsible for ensuring that significant time frames were met and that charging and time recording was accurate.  He also considered that Ms Parer had responsibility "for the conduct of the people under her supervision and ensuring they delivered legal services appropriately".

271. [271]
     Mr Rallings was also cross-examined in some detail about the allegations made against Ms Parer.  That cross-examination revealed that some of the allegations made against Ms Parer concerning her supervision of Mr Weston included periods of time when she was not his supervisor.  In her affidavits filed in the Commission, Ms Parer swore that she did not commence in the ACS position until 28 July 2014 rather than 14 July as mentioned in some of the allegations.  Dates earlier than 28 July were given as to when some of the alleged deficiencies on the part of Mr Weston arose.

272. [272]
     Mr Rallings was asked how he could find Ms Parer liable for discipline for matters when she did not hold the supervisory position.  His response was that he had read the material, believed there were grounds for discipline and it warranted asking her to show cause.  It was also put to Mr Rallings that the only way such mistakes could have been made was because he did not read the material.  His response was that he had read the material. 

273. [273]
     Ms Parer alleges that Mr Rallings did not properly understand Allegation 8.  In his evidence he described a different event to that which occurred.  Allegation 8 concerns Ms Parer's failure to supervise the most junior lawyer in her team who failed to file a defence within the prescribed time resulting in financial implications for the State.  Ms Parer admitted in cross-examination that the issue was serious.  When asked to explain the issue, Mr Rallings said under cross-examination that "[t]here was a matter with a lawyer in the team who had failed to attend to a particular matter, at a particular required time and there had been some costs anomaly (sic) was awarded."

274. [274]
     Further, he is criticised for not satisfying himself about certain of the particulars in relation to the utilisation of the relevant system.  Mr Rallings agreed under cross‑examination that he had not made enquiries about whether the system was used by all GR2 team members and the regularity with which it was used.  He relied on the information that had been provided in that respect.  He did not identify any gaps in the information provided.  In re-examination he explained that the information he relied on was recorded and the system was the means by which it was recorded.

275. [275]
     Allegation 9 alleges professional misconduct on the part of Ms Parer.  In her affidavits Ms Parer explained what had occurred.  In cross‑examination, she accepted the allegation was particularly serious and could be career-ending.  Interestingly, she never directly denied the allegation until her cross‑examination.  In re-examination she produced an affidavit sworn on 26 April 2016 denying the allegation.  It had not been previously filed, served or disclosed.

276. [276]
     Mr Rallings agreed under cross-examination that he did not take any steps to identify the primary source of the allegation but relied on the information provided by Crown Law via Mr Woods.

3. (iii)
   The role and reasons of Ms McDermott

1. (a)
   The third instance of alleged prohibited conduct:  The second show cause conduct

277. [277]
     Although the second show cause conduct is described in the application as the fourth instance of prohibited conduct, it is more convenient, as well as sequential, to deal with it as the third instance.

278. [278]
     The disciplinary process had been halted and recommenced on the instruction of Mr Rallings in late 2015.  By the time the second show cause letter had been drafted, it was Ms McDermott who held the delegation to make the relevant decisions.  Ms McDermott gave evidence that she is an experienced decision maker, holding a standing delegation from the Director-General giving her responsibility for disciplinary decision making in relation to employees of QCS.

279. [279]
     What information did Ms McDermott consider?:  Ms McDermott was given a substantial volume of material relating to Ms Parer and Mr Weston to read and digest including 16 lever-arch files containing copies of the Crown Law files the subject of the allegations and the five reports from Ms Sorbello; copies of correspondence from SMA; affidavits filed in the QIRC proceedings and transcripts from proceedings in the Commission.  She did not have Ms Parer's response to the first show cause, because, despite consenting to a date to respond, she did not comply, filing the declarations application instead.

280. [280]
     Draft second show cause letters were also provided to Ms McDermott.  These dealt with whether the allegations had been substantiated and the proposed disciplinary penalty.

281. [281]
     Ms McDermott was also given four lever-arch folders of files concerning the last two allegations against Ms Parer and two lever-arch folders containing the show cause notices, relevant court documents and the relevant provisions of PIPA.

282. [282]
     Ms McDermott conservatively estimates that she spent seven to eight hours reviewing the material concerning the allegations against Mr Weston and a further four to five hours reviewing the material in respect of Ms Parer.  This evidence is supported by an email she sent to Mr Woods on 7 April 2016 where she advises that as "the letters express frequently that I have 'read in detail' and similar statements … I have a responsibility to do so."

283. [283]
     What were Ms McDermott's reasons for the decision?:  Ms McDermott took into account the affidavit material that had been filed in the Commission as she thought it would be unfair not to do so as it may assist her.

284. [284]
     Ms McDermott considered the draft second show cause letter to ensure she was happy with the draft findings in respect of each allegation and that the proposed penalty was appropriate based on those findings.  She ultimately decided the allegations were substantiated and to issue the second show cause letter.

285. [285]
     The second show cause letter set out each allegation followed by the reason for finding the allegation or sub-allegation substantiated.  Because it repeated each allegation from the first show cause letter, it repeated the dates which, as already discussed, referenced periods during which Ms Parer was not Mr Weston's supervisor.  Ms McDermott accepted that she should have sought further information to resolve the discrepancy in the dates.

286. [286]
     Ms McDermott was aware from the documents filed in the Commission that Ms Parer had made a complaint and the contents of that complaint.  However, it was not relevant to the decisions she had to make.  Further, neither the existence nor the content of the complaint influenced her decision making.  In addition, she had no personal or professional relationship with any of Ms Parer, Mr Weston or Ms Freemantle and no personal stake in the outcome of Ms Parer's complaint or Mr Weston's grievance.

287. [287]
     Commission proceedings and the disciplinary process:  Ms McDermott wrote to Ms Parer by letter dated 12 April advising her of the decision.  This letter was issued after the Commission had heard and determined the various interlocutory applications including the Respondent's application to dismiss Ms Parer's declarations application and Ms Parer's (and Mr Weston's) application to disqualify Crown Law and Ms Black from acting for the Respondent.

288. [288]
     Ms McDermott became aware of Ms Parer's application challenging the Respondent's representation in mid-March but said it was not a factor in her decision making.

289. [289]
     In the briefing she was given on assuming the delegations, when Ms McDermott asked about the involvement of QCS, mention was made that there had been some proceedings but Ms McDermott could not recollect specific mention of Commission hearings.

290. [290]
     Ms McDermott said the information about the Commission proceedings did not impact on how she viewed the materials she was receiving from Crown Law.  She did not make any inquiries as to Ms Black's involvement in the preparation of the materials before her despite Ms Black's representation being specifically challenged.  She only became aware of this issue after the letters of 12 April were sent when she read it in the media.

291. [291]
     Ms McDermott was unaware that Mr Rallings had ordered a stay of the disciplinary process pending the Commission proceedings.

2. (b)
   The fourth instance of alleged prohibited conduct: The threatened termination conduct

292. [292]
     What were Ms McDermott's reasons for the proposed disciplinary penalty?:  After finding a number of allegations/sub-allegations to be substantiated, Ms McDermott determined Ms Parer was liable for disciplinary action pursuant to s 188 of the PS Act.  In the second show cause letter, Ms McDermott set out the range of disciplinary penalties available under that section and advised that serious consideration was being given to the termination of her employment.  Ms Parer was advised that no final decision on penalty had been made and she was given a period of 14 days to respond.  She was also advised of a list of matters that would be considered in determining the penalty decision including her response.  Ms McDermott further advised that if no response was received then a decision would be made on the material before her.

293. [293]
     In her affidavit, Ms McDermott said that as she read the draft second show cause letter for the first time she had reservations about whether the alleged lack of supervision, even if substantiated, could support the recommended proposed disciplinary action of termination.  However, the allegation of misrepresenting whether a letter had been sent led her to consider that the proposed penalty of termination was warranted.

4. (iv)
   Consideration of who made the decisions

294. [294]
     Ms Parer claims in her closing submissions that the necessary witnesses not called are particularly Ms Freemantle, Ms Black and Ms Kane.  Ms Watson and the Crown Solicitor were also identified as witnesses of relevance. As employees of Crown Law, they were in the Respondent's "camp" and each had unique knowledge, not accessible to Ms Parer, which would shine a light on Crown Law's involvement in the disciplinary process.  The failure to call these witnesses invites the Commission to draw an adverse inference as explained in Jones v Dunkel.

295. [295]
     Her application also identifies that Mr Mackie, the Crown Solicitor and Ms Hamilton were involved in the prohibited conduct in an unspecified way.

296. [296]
     The Respondent contends that no Jones v Dunkel inference should be drawn because it was not necessary for it to call the Crown Law workplace lawyers or, indeed, Ms Freemantle or the Crown Solicitor.  Ms Parer does not claim in her application that any of these officers were engaged in prohibited conduct.  None of the nominated Crown Law officers were decision makers and there is no direct evidence that they influenced the outcomes reached by the decision makers.  The Respondent also submits that there is no evidentiary basis for an inference that others were orchestrating the disciplinary process to achieve particular ends.  For these reasons, the Respondent contends it has no case to answer.

297. [297]
     Although only Mr Rallings and Ms McDermott are named in Ms Parer's application as having engaged in prohibited action, consideration will be given to the involvement of the Crown Law officers referenced in the Applicant's closing submissions and in her application particularly with reference to the Jones v Dunkel inference which is sought to be drawn.

298. [298]
     Mr Mackie, the Crown Solicitor and Ms Hamilton:  Mr Mackie was the decision maker for the complaint and the grievance.  He delegated Mr Rallings to be the decision maker for the suspension and disciplinary process and subsequently Ms McDermott to be the decision maker for the remainder of the disciplinary process.  Although aspersions have been cast on Mr Mackie's signing of the delegations, the Commission has accepted that there was nothing untoward about his actions.  The change of the delegation from Mr Rallings to Ms McDermott was also explained and accepted.

299. [299]
     The evidence shows that the Crown Solicitor was the decision maker for the complaint lodged by Ms Parer and Mr Weston's grievance and recommended an external review of Mr Weston's files.  No other direct or indirect evidence implicates him in Ms Parer's suspension and disciplinary process and no inferences can be drawn in that respect.

300. [300]
     Ultimately, Ms Parer did not prosecute a case against Mr Mackie or the Crown Solicitor for engaging or being complicit in prohibited conduct.

301. [301]
     Ms Hamilton became involved when she was asked to attend the meeting on 25 March 2015 that had been requested by Ms Parer.  Ms Cubby's evidence is that Ms Hamilton's role was to advise on the performance matters concerning Mr Weston.

302. [302]
     Ms Sorbello's evidence is that Ms Hamilton contacted her in relation to Ms Parer's supervision of Mr Weston.

303. [303]
     In her closing submissions, Ms Parer says that Ms Hamilton could have given evidence explaining the actions against her but she does not contend Ms Hamilton was engaged in the prohibited conduct either directly or by inference.

304. [304]
     In the circumstances, the Commission does not consider it necessary to further consider the involvement of Mr Mackie, the Crown Solicitor or Ms Hamilton.

305. [305]
     Ms Freemantle, Ms Kane and Ms Black:  These three Crown Law officers are alleged to be the driving forces of the alleged prohibited conduct.  None of them are mentioned in Ms Parer's application as being involved in the prohibited conduct.  The Applicant submits that she does not have to particularise the person or persons who held prohibited reasons.  (I think the submission was meant to be the person or persons who engaged in prohibited conduct for prohibited reasons.)  She contends that as the case unfolded the evidence pointed to one or more people in Crown Law.

306. [306]
     The Commission accepts that there may be cases where participants who had not previously been identified in the filed material come to light during the proceedings.  This was not such a case.  An attempt was made by Ms Parer to widen the Particulars to include other Crown Lawyers as participants in the prohibited conduct.  In my decision on that application I said:

"[7]  … the Applicant's own material which has been filed for some time, identifies Ms Freemantle, Ms Black and Ms Hamilton in particular as being involved in matters she considers relevant to this litigation.  In the proceedings to have Crown Law and Ms Black cease acting from the Respondent, Ms Parer's then Counsel made submissions (recorded at paragraphs [79] to [82] of my decision of 1 April 2016) about the integral involvement of Ms Freemantle and Ms Black in those matters.  While a clearer picture of the extent and the nature of their involvement may have come to light through the disclosure process or on receipt of the Respondent's affidavits, it is apparent that the Applicant has known for some months of their involvement and as a result could and should have at a much earlier time amended the particulars to include these officers."^[51] (references omitted)

307. [307]
     However, because a central plank in the Applicant's case is that Ms Freemantle, Ms Kane and Ms Black are the driving forces of the impugned conduct, their respective roles will be considered.

308. [308]
     The Commission accepts that gaps exist in the explanation of the reasons certain events occurred or steps were taken.  Of particular note are the following:

• On whose instruction and for what reason did Ms Hamilton contact Ms Sorbello to enquire whether she could provide any comments in relation to Ms Parer's supervision of Mr Weston in his conduct of the files.
• The reasons the first show cause letter to Ms Parer came to contain two allegations that are unrelated to Mr Weston's performance or conduct and the source(s) of those allegations.
• Who considered that a suspension and a potential disciplinary process might be warranted in relation to Ms Parer.

309. [309]
     The question is whether evidence of these matters is required to determine the true decision makers.  The task of the Commission is to determine whether Mr Rallings and Ms McDermott were the "operative minds"^[52] in making the impugned decisions or whether those Crown Law officers nominated by Ms Parer should wear that mantle.

310. [310]
     It was Ms Freemantle's comment on 18 February that caused Ms Parer to be concerned about the actions of QGIF in relation to Mr Weston and crystallised her unhappiness with Ms Freemantle's management of her.  Ms Parer perceived Ms Freemantle to be angry when she raised the issues of the connection between the comment and the QGIF complaint.  She also gave other evidence about Ms Freemantle's subsequent limited interactions with her.  Although she was unaware of it at the time, Ms Freemantle was disciplined for the comment. 

311. [311]
     Ms Cubby gave evidence that Ms Freemantle was unhappy when given Ms Parer's complaint. 

312. [312]
     In light of these factors, Ms Parer's argument appears to be that Ms Freemantle was embarrassed by being disciplined over the 18 February comment and being the subject of a complaint with the result that she sought reprisal against her. 

313. [313]
     Ms Parer's evidence that Ms Freemantle told her that she had been discussing her comment with Mr Dwyer in the context of the file review was not put to Mr Dwyer.  He was available for cross-examination but was not required.

314. [314]
     Mr Dwyer's evidence makes clear that given the issues with Mr Weston's management of a number of files, nothing less than a comprehensive file review was going to be acceptable to QGIF.  Ms Freemantle was involved in the review of the M# file in circumstances where Ms Parer had a three week absence from work and there was a clear need for an expeditious review of the file given the complaint from QGIF.  Her involvement was both necessary and appropriate at that point but became inappropriate when Mr Weston lodged his grievance.

315. [315]
     Mr Dwyer's evidence puts to bed any suggestion of a link between Ms Freemantle's comment and QGIF's complaint.

316. [316]
     Ms Parer conjectures that it was Ms Freemantle who was involved in the development of the allegations in the show cause and especially Allegations 8 and 9.  Evidence was given by Ms Cubby that Ms Freemantle had asked her whether the IT team could perform some checks on Visualfiles in relation to the matter that became the subject of Allegation 8 in the show cause process.  Ms Parer contends that without Ms Freemantle's evidence, the Respondent is unable to discharge the reverse onus.  The Respondent rejects that submission and the submission about the need to identify the source of the complaints on the grounds that Ms Freemantle was not a decision maker.

317. [317]
     In her email to Ms Cubby requesting IT assistance, Ms Freemantle indicates that the lawyer who was then handling the relevant file brought the issue to her attention.  The issue was subsequently raised by Mr Dwyer.  Ms Freemantle requested information to determine how the mistake was made and whether anyone was responsible for the deletion of reminders.  The response received from IT was that the system does not keep audit records for the deletion of reminders.

318. [318]
     These events occurred after Ms Kane contacted Mr Woods seeking him to be the instructor on the suspension and possible disciplinary matters.  By then too, Ms Parer's original complaint had been rejected by the Crown Solicitor but referred by Mr Mackie for external investigation.

319. [319]
     It seems likely that the information received from IT fed into the disciplinary process.  Evidence about how that occurred would have been useful to provide a more comprehensive understanding of how matters unfolded.  There is no evidence before the Commission about the origins of Allegation 9.  Whether Ms Fremantle could have given evidence on this matter is unknown.  Subject to some later comments, I consider evidence from Ms Freemantle would have assisted the Commission to understand the extent of her involvement, if any, in the development of the suspension and disciplinary processes and especially, in the matters leading to Allegations 8 and 9.  However, whether she was an operative mind is a different issue.

320. [320]
     The Respondent bears the reverse onus to prove the alleged prohibited conduct was not engaged in because of a prohibited reason.  The case law establishes that a person involved at a preparatory stage of a transaction can be an "operative mind" and, where that process injures or disadvantages an employee in employment, the operative mind can be found to have engaged in prohibited conduct if they influenced the process because they were acting for an undisclosed prohibited reason.

321. [321]
     The evidence is that it was Ms Kane and Ms Black who were responsible for the preparation of the show cause letters.  Ms Freemantle had no delegated authority to make a decision about a suspension or disciplinary process.  Even had she provided information to Ms Kane and Ms Black about the matters that became Allegations 8 and 9, she could not have had any decision making role in the preparatory phase. 

322. [322]
     Further, it is unnecessary to draw a Jones v Dunkel inference when Ms Freemantle was never nominated in the application either directly or in the inferences section as being an "operative mind" in the decisions.  To do so at the death is a belated attempt by the Applicant to overcome the drafting deficiencies of the application.

323. [323]
     Ms Parer also directs her attack at Ms Kane and Ms Black.  Mr Woods' evidence is that Crown Law were engaged as legal advisors in the disciplinary process and that it was usual in such circumstances for Crown Law to draft correspondence for the decision maker's consideration.

324. [324]
     The evidence in relation to Ms Kane is that she took instructions from Mr Woods after being advised by Mr Loof to contact him.  She was also involved in the preparation of the draft correspondence provided to Mr Rallings and Ms McDermott.  Ms Kane also briefed Mr Rallings on 12 June 2015 in relation to the suspension of Ms Parer.

325. [325]
     Ms Black is impugned because she continued to provide legal advice after being disqualified from acting for the Respondent in proceedings before the Commission brought by Mr Weston and Ms Parer.  The application before the Commission was that Ms Black and Crown Law cease acting for the Respondent in both the declarations applications and the s 120 applications.  Although the application was granted, no order was made by the Commission that Ms Black or Crown Law cease providing legal advice to a decision maker.

326. [326]
     In any event the only step in the disciplinary process that was taken after my decision was made on 1 April 2016 was Ms McDermott issuing the second show cause letter.  By the time that was done, Ms Black's involvement in drafting the correspondence was for all intents and purposes complete.  There is no evidence that she provided legal advice to Mr Woods or Ms McDermott or took other steps in respect of the disciplinary process after the draft second show cause letter was provided to Ms McDermott.

327. [327]
     The Applicant has not advanced any reasons to support an argument that Ms Kane and Ms Black were among the principals in prosecuting the prohibited conduct.

328. [328]
     There is ample evidence before the Commission that shows that Ms Kane and Ms Black acted as legal advisors.  Given that, and absent any motivating reason to engage in reprisal action, I do not consider they can be characterised as the true decision makers.  However, their roles will be further considered after reviewing the evidence in relation to Mr Rallings and Ms McDermott.

329. [329]
     Criticisms of Mr Rallings and Ms McDermott:  In addition to making specific criticisms of the decision making by Mr Rallings and Ms McDermott, Ms Parer makes the following criticisms of both Mr Rallings and Ms McDermott:

• they are non-lawyers and thus did not properly understand the material;
• the decisions were not made in good faith; and
• they rubber stamped the decisions or were wilfully blind or innocent instruments or agents of Crown Law.

The second and third criticisms will be considered individually in the course of examining whether they were the true decision makers.  However, the contention that their being non-lawyers made them unfit for the task is considered now. 

330. [330]
     Ms McDermott openly admitted to being daunted by the task confronting her in circumstances where she was a non-lawyer and the subject officers were lawyers and represented by lawyers.  She was concerned that she might need to have skills in complex legal issues, legal terminology and legal processes.  Because of this she was especially diligent in reading the material to make sure the decisions she was being asked to make were supportable on the material before her.

331. [331]
     The Applicant submits that Mr Rallings' evidence about not needing help understanding the Sorbello reports should not be believed as they contain substantial technical legal information.  He did not explain how he understood the legal concepts and his lack of understanding showed in respect of his explanation of Allegation 8.  For reasons that are given below, in the section devoted to an assessment of Mr Rallings' evidence, these submissions are rejected.  

332. [332]
     It must be recalled that both Mr Rallings and Ms McDermott are senior public servants who carry standing delegations for disciplinary matters in the QCS and who, in the ordinary course of their duties, would be required to make decisions about complex matters, including matters about which they might not have formal qualifications.  The absence of any such qualifications does not diminish their capacity to read and understand documents that are placed before them.

333. [333]
     I have reached the view for the reasons that follow that both Mr Rallings and Ms McDermott demonstrated an understanding of the material and could explain the reasons their respective decisions were made.

334. [334]
     Mr Rallings:  The Applicant's specific criticisms of Mr Rallings are that he is an unreliable witness whose evidence on contested matters should not be relied on unless corroborated.  She also strongly criticises Mr Rallings' decision making.  She contends he could not identify the conduct that attracted justification for the suspension and first show cause.  He did not want to know about the possibility of the process being tainted by reprisal and placed blind faith in the integrity of Crown Law.  He acted in bad faith in deciding to suspend Ms Parer in two respects.  Firstly, his actions were unlawful and he then misled SMA.  Other examples of his lack of good faith are his approach to the alternative duties; his explanation for revoking the stay on the disciplinary process and his failure to tell Ms McDermott of this.

335. [335]
     She says:

"[158] These fundamental failings in his evidence, together with his general lack of credit as a witness, place him as a decision maker who, at best, is both wilfully blind and nothing more than a rubber stamp for Crown Law. The evidence here goes further. This was decision making in bad faith. He was not engaged in the suspension decision or the first show cause decision. In truth, he was not the decision maker in either instance but another cipher for Crown Law."

336. [336]
     As Ms Parer has squarely put Mr Rallings' credit in issue, it is appropriate to deal with this matter in conjunction with the "fundamental failings in his evidence".

337. [337]
     I was troubled by Mr Rallings' evidence given under cross-examination in relation to the exchange of correspondence about the failure to retain a record of alternative duties which the Applicant variously described as "obtuse", "insulting, disdainful and arrogant".   I was also uneasy about his apparent lack of concern about some of the dates in the allegations pre-existing Ms Parer's tenure in the ACS position.  Added to this is the allegation of bad faith decision making that Mr Rallings decision to suspend Ms Parer was made in haste with the result that he was not engaged in the decision.  The Applicant submits that his evidence on these matters shows that he was not the driving force of the conduct.

338. [338]
     Mr Rallings obfuscated in answering questions under cross-examination about the record of alternative duties and misleading SMA.  He did not present as a witness who was ready to admit mistakes.

339. [339]
     After reading and considering his evidence given under cross-examination, I have reached the view that Mr Rallings did not pay a great attention to detail.  He was not required in either of the matters before him to make decisions on whether Ms Parer was actually deficient in her supervisory responsibilities or otherwise engaged in the conduct as alleged.  His focus was on whether at a macro level evidence existed to indicate that her performance or conduct was unsatisfactory and that it was sufficiently serious to warrant a suspension and show cause process being implemented.  He was therefore not required to consider the material or employ critical thinking skills to the same extent as if he was making findings on the allegations.  That is not to suggest that the decisions he was making were not serious and did not have major ramifications.  Rather, the decision making process in which he was engaged was qualitatively different to that engaged in by Ms McDermott.

340. [340]
     There is some tension between the evidence of Mr Woods and Mr Rallings as to the time Mr Rallings took to make the suspension decision that was not resolved by oral evidence.  On Mr Woods' evidence, Mr Rallings considered the suspension decision for about one hour between 11.00 am and 12 midday, which included the briefing by Crown Law.  The way I have understood Mr Rallings' evidence, particularly in light of his comments that he had a good opportunity to review the Sorbello report and did not have any meetings that afternoon, is that he spent the hour alone.  Regardless of whether the hour spent included the briefing by Crown Law or not, the amount of time spent on a decision with serious consequences, gives rise on the part of Ms Parer to some disquiet about the seriousness with which the matter was treated.^[53] 

341. [341]
     The briefing memorandum provided to Mr Rallings in respect of the suspension decision made several recommendations, including "determine whether to suspend the officers concerned from duty on full remuneration" and "if you determine to suspend the officers sign the attached suspension letters".  This document was identifying that Mr Rallings had to make his own decision but once he had, the prepared correspondence could be used.

342. [342]
     In light of the nature of the matter he was required to decide, the documentation provided and given that he was briefed on the issues, I am satisfied that Mr Rallings spent sufficient time in considering his decision.  He had been given the first Sorbello report and Ms Parer's Position Description and drew a link between Mr Weston's performance and the requirements of Ms Parer's supervisory position.  His evidence shows that he understood the background to and the reasons he was being asked to decide whether to suspend Ms Parer. 

343. [343]
     In respect of the first show cause letter, Mr Rallings' evidence establishes that it was he alone who decided to move to the disciplinary process.  He asked Mr Woods to have the show cause letters prepared after he had received and read the remaining Sorbello reports.  His reasons for doing so reflected his reasons in deciding to suspend Ms Parer i.e., that she had responsibility "for the conduct of the people under her and ensuring they delivered legal services appropriately".  By making the decision to initiate the show cause process, without any briefing or other documents from Crown Law before him, Mr Rallings has established that he acted independently.

344. [344]
     Mr Rallings said he was aware at the time he was considering the first show cause that there were suggestions that something was improper about the fact that disciplinary action had been taken against Ms Parer but he did not take any steps to ascertain the primary source of the material with which he was briefed.  It was this evidence and his evidence that he was not concerned to ensure that the material was unaffected by any of the improprieties suggested that attracted the claim that he did not entertain the possibility of the process being tainted by reprisal and placed blind faith in Crown Law.  Added to this, Mr Rallings accepted the information because it came from Mr Woods who was obtaining it from Crown Law.  However, the critical issue to be examined is what Mr Rallings actually did in deciding to act to issue the suspension and the first show cause letters.

345. [345]
     Mr Rallings was provided with the source documents that founded the allegations concerning Ms Parer's supervision of Mr Weston.  His evidence shows that he comprehended the allegations and the reasons they had been made.  He considered the Sorbello reports showed a pattern of conduct on the part of both Mr Weston and Ms Parer.  He demonstrated an understanding of the deficiencies that had been identified in the Sorbello reports and how they impacted on Ms Parer.  He was able to link the deficiencies to the responsibilities listed in her Position Description and provide an explanation of the relevance of the system used in relation to Allegation 8.  The Commission accepts that while his explanation of his understanding of this Allegation was technically incorrect, he understood the fundamental principle of it, that is, that a step that was required to be taken by the junior lawyer was not taken within the prescribed time which resulted in a financial impost to the State.

346. [346]
     Mr Rallings' evidence is that he was satisfied the allegations drafted for his consideration were appropriate and supportable on the material before him.  In light of this he considered they may have contravened s 187 of the PS Act and it was appropriate for Ms Parer to show cause and have an opportunity to respond to the allegations.  He was able to explain how he reached his decision in his evidence.

347. [347]
     Because Mr Rallings initiated the show cause process, I do not entirely accept Ms Parer's submission that Mr Rallings could not make the decisions except for the information prepared by Crown Law.  However, I accept that the involvement of Crown Law was critical to the formulation of the two letters to Ms Parer.  The nature of bureaucracies is that a senior officer relies on the preparatory work for a decision to be done by others.  Often draft correspondence is prepared for the decision to be communicated.  This occurred in DJAG generally and in these circumstances in particular, as the evidence of Mr Woods confirmed.  However, I do not consider that Mr Rallings blindly accepted Crown Law's brief or the draft letter to reach his decisions.  For reasons already given I am satisfied he engaged with the material and made his own decisions using the Crown Law drafts to communicate them. 

348. [348]
     Ms McDermott:  Ms Parer is also critical of Ms McDermott's decision making.  Her alleged failings are many including that she did not understand the material or pursue answers to questions; she was not provided with relevant information such as the proceedings in the Commission; she lost interest in the task and it was beyond her understanding.

349. [349]
     I have no hesitation finding Ms McDermott to be a witness of credit.  She freely admitted to being initially daunted by the nature of the issues and the involvement of lawyers in circumstances where she does not have legal qualifications.  For this reason she spent considerable time and effort engaging with the material to ensure that she was satisfied with the decisions she made.

350. [350]
     Ms McDermott was provided with a significant volume of documents relevant to the allegations.  Her concern that a considerable amount of work was required to work her way through the material to arrive at her decisions was justified given she spent about 13 hours in total on reading and considering the two disciplinary processes.

351. [351]
     Ms Parer's contentions that Ms McDermott was not engaged with the material, lost interest in the task and did not understand the material are not borne out on the evidence.  In addition to the number of hours spent reviewing the documentation, her contemporaneous email to Mr Woods explains that she understood, and took seriously, her responsibility to read and obtain a detailed understanding of the documents.

352. [352]
     Ms McDermott explained her process for understanding the material she had to consider.  As she considered each allegation, she reviewed the relevant section of the personal injuries file and any other relevant documents that had been attached to the first show cause letter.  Ms McDermott confirmed her approach under cross‑examination.

353. [353]
     The process Ms McDermott engaged in to issue the second show cause was thorough.  She comprehensively read an array of material to satisfy herself about whether the allegations were capable of being substantiated or not.  After doing so, she reached the view that the draft letter that had been provided to her for her consideration could be formally issued.

354. [354]
     The allegations of bad faith decision making made against Ms McDermott are that she deliberately destroyed notes and she unreasonably failed to pursue the meaning of "PIPA" and the "balance of probability".

355. [355]
     In relation to the claim she deliberately destroyed notes, Ms McDermott explained that she made "scratchings" and included matters such as what PIPA meant and understanding the balance of probabilities.  She said there was nothing in her notes that would imply anything in her decision making.  She threw out her notes but realised the process was going to attract some later scrutiny.

356. [356]
     The Respondent dismisses the proposition that not keeping the notes is evidence of a lack of good faith.

357. [357]
     Given Ms McDermott initially commenced the task by reading the show cause letter from start to finish, it is unremarkable that she would have made a note to check the meaning of PIPA.  Whether she did or did not, and whether she checked the meaning of "balance of probability" is not disclosed on the evidence.

358. [358]
     The Commission accepts that had Ms McDermott kept notes, some light might have been shed on her decision making process.  Whether her "scratchings" would have assisted is unknown.  In the circumstances the Commission is forced to rely on her oral and written evidence as to her reasoning process.

359. [359]
     I do not accept the allegations of bad faith decision making made against Ms McDermott are justified.  Nor are they relevant to the decision I have to make.

360. [360]
     Conclusion about who the decision makers were:  If the argument is that Ms Kane and Ms Black made assessments that were later relied on by either Mr Rallings or Ms McDermott, in the nature of those considered in Elliott or CFMEU v Clermont Coal, that argument is rejected.  Certainly, they were involved in the preparation of the show cause letters which would have involved the drawing together of an array of information and formulating the allegations.  Judgment would have had to have been exercised in relation to whether to include or exclude information.  However, to the extent that they made assessments of Ms Parer in drafting the correspondence, the source documentation was provided to Mr Rallings and Ms McDermott for them to satisfy themselves that the allegations had been properly developed and had foundation.

361. [361]
     For these reasons I am satisfied that the roles of Ms Kane and Ms Black were those of legal advisor.

362. [362]
     I am satisfied that Mr Rallings brought his own independent judgment to the material before him and the decisions he had to make.  Of particular importance is the fact that he was provided with the source material and his evidence is that he read and considered it at some length, at least in respect of the decision to issue the first show cause letter.  The presence of these factors distinguishes this case from some of the authorities relied on by Ms Parer as to the true decision maker.  There is an absence of satisfactory evidence showing that he rubber stamped or otherwise did not make his own decision.  The fact that he alone decided to move to the first show cause letter on receipt of the remaining Sorbello reports is testament to this.

363. [363]
     I have accepted Ms McDermott as a witness of credit who engaged with the voluminous material comprehensively in reaching her decisions.  I consider that Ms McDermott was the true decision maker in respect of the third and fourth allegations of prohibited conduct.  The considerable investment of time in reading and understanding the allegations and the foundational documents is evidence of a decision maker who is committed to ensuring that she makes the appropriate decision that is not only correct but can withstand the scrutiny she knew would follow.  Her independence is particularly established by her evidence that she was concerned whether the substantiated allegations concerning Mr Weston's supervision were sufficient to warrant the termination of Ms Parer's employment.  However, after she considered the seriousness of Allegation 9 she decided that this was the appropriate penalty. 

364. [364]
     The Commission finds that each of Mr Rallings and Ms McDermott were the true decision makers for the decisions affecting Ms Parer.

10. WHAT WERE THE REASONS FOR THE CONDUCT?

365. [365]
     The second part of the inquiry to be undertaken is to examine reasoning of the decision maker to ascertain whether any or all of the alleged prohibited conduct was taken because of a prohibited reason.

366. [366]
     Ms Parer claims that each of the impugned conduct was engaged in because of prohibited reasons.

367. [367]
     The Respondent rejects this contention and argues that Ms Parer made no effort to assert any link between the alleged prohibited reason and the alleged prohibited conduct.

368. [368]
     Accepting that ss 104, 105 and 122A of the IR Act are cast in different terms to s 346 of the FW Act, these provisions nonetheless share a common history to the predecessor provisions of s 346.  Assistance in understanding the approach to determining whether prohibited conduct was taken for a prohibited reason can be gained from the explanation about adverse action cases given by French CJ and Kiefel J in Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd:^[54]

"[7] The focus of the enquiry as to whether s 346(b) has been contravened is upon the reasons for Mr Brick taking the adverse action.  This is evident from the word 'because' in s 346, and from the terms of s 361.  The enquiry involves a search for the reasoning actually employed by Mr Brick.  The determination to be made by the court is one of fact, taking account of all the facts and circumstances of the case and available inferences.

[8] In Board of Bendigo Regional Institute of Technical and Further Education v Barclay [No 1] French CJ and Crennan J observed that it would ordinarily be difficult for an employer who has taken adverse action to discharge the onus of proof in s 361 without calling direct evidence from the decision maker as to his or her reasons.  The court is not obliged to accept such evidence.  It may be unreliable for a number of reasons.  For example, other objective evidence may contradict it.

[9] However, s 346 does not involve an objective test.  In Bendigo, Gummow and Hayne JJ explained that it is misleading to use the terms 'objective' or 'subjective' to describe the enquiry in s 346.  To speak of objectively ascertained reasons risks the substitution by the court of its own view, rather than making a finding of fact as to the true reason of the decision-maker." (references omitted)

369. [369]
     Although different reasons for judgment were given in Barclay, the unanimous view of the High Court was that "the word 'because' in s 346 of the Act connotes the existence of a particular reason as an operative and immediate reason for taking adverse action."^[55]  Gummow and Hayne JJ held in Barclay^[56] that the phrase "operative or immediate reason" was indistinguishable from the phrase "operative or substantial factor" used in General Motors Holden Pty Ltd v Bowling^[57] by Mason J.

370. [370]
     It follows then that the task of the Commission is to search for the reasoning actually employed by Mr Rallings and Ms McDermott to determine whether the reasons for their conduct were prohibited.  I must make a finding of fact as to the true reasons of each of Mr Rallings and Ms McDermott, taking account of all of the facts and circumstances and available inferences.  The reason must be an operative and substantial reason for engaging in the conduct.

1. (i)
   The Suspension Conduct

371. [371]
     The first instance of alleged prohibited conduct is the conduct of Mr Rallings in suspending Ms Parer on 12 June 2015.  It is alleged that he engaged in that conduct because Ms Parer was dissatisfied with her industrial conditions and/or because she had made a complaint under an industrial law to a person who had capacity to seek compliance with that law.

1. (a)
   Issues claimed to form part of the suspension conduct

372. [372]
     Suspension under s 189:  Ms Parer contends that her suspension was unlawful because it was effected under s 189 rather than s 137 of the PS Act.

373. [373]
     In response to this submission, the Respondent notes that the suspension letter refers to the prospect of disciplinary action rather than liability for discipline under a disciplinary law as required by the PS Act.  It was submitted that the fact that the suspension letter in one place does not accurately state the test for suspension under the PS Act does not indicate that the decision to suspend was not made by Mr Rallings or was made dishonestly.  At its highest it demonstrates a drafting error or perhaps at worse, the application of the wrong test.  In answer to questions posed by the Commission, Mr Rallings said he was aware of the other suspension provision under the PS Act but believed s 189 was the appropriate provision.  In any event the Respondent submits that it is unnecessary for the Commission to determine whether the finding that Ms Parer may be liable for disciplinary action was sufficient to provide a legal foundation for suspension under the PS Act.

374. [374]
     Two different parts of the PS Act concern suspension.  One section, s 137- Suspension other than disciplinary action falls within Chapter 5 - Staffing generally, Part 4 of the Act  - Termination, suspension and related matters whereas s 189 - Suspension of public service employee liable to discipline falls within Chapter 6 - Disciplinary action for public service employees and former public service employees, Part 2 - Disciplinary action. 

375. [375]
     In my decision of 1 April 2016, I noted the parties (then only the Respondent and Mr Weston) agreed that the suspension was not disciplinary action.  I made a series of other comments in passing about whether s 189 was the correct source of power for the suspension when only a reasonable belief is held as to whether an employee is liable for discipline.  This is because s 189 requires a positive finding that the employee is liable to discipline under a disciplinary law.  In contrast, suspension under s 137 is not disciplinary action; requires no findings in relation to conduct or performance, only that the proper and efficient management of the department might be prejudiced if the officer is not suspended.

376. [376]
     While casting considerable doubt on whether s 189 was the correct source of power, it was unnecessary for the Commission in that decision to reach a concluded view.  That position has not altered in the substantive hearing.  Although the Particulars of the application state the suspension decision was unlawful, the question the Commission is required to determine is whether the suspension decision was taken for a prohibited reason, being one of those reasons in s 104.  There is nothing in the application which alleges the decision to suspend under s 189 was taken because of a prohibited reason.

377. [377]
     Manner of suspension: Ms Parer gave evidence about the manner in which the suspension letter was delivered to her, what happened immediately afterwards and her reaction to being suspended.  The manner of suspension is described in the Particulars and Ms Parer's evidence as being humiliating as it was effected in front of work colleagues during the working day.

378. [378]
     In her reply submissions, much criticism was levelled at the manner of the suspension.  Ms Parer also argues that the prohibited conduct of suspension is broad enough to encompass the manner of suspension.

379. [379]
     As the Respondent correctly submitted, nowhere in the application or Particulars is the implementation or the actioning of the suspension raised or pleaded as prohibited conduct.  The only prohibited conduct alleged in relation to the suspension of Ms Parer is Mr Rallings' decision.

380. [380]
     In the circumstances it is unnecessary to consider this issue.

381. [381]
     Not making/retaining a record of alternative positions:  Ms Parer also submits that by not making a record of the alternative positions considered, Mr Rallings did not comply with the Public Service Chief Executive Guideline 01/13:  Discipline.  However, the "Purpose" section of the Guideline makes clear that, "[i]ts purpose is to only provide guidance.  It does not bind or substitute for decision makers needing to properly exercise their managerial discretion in line with the PSA, in response to the unique set of facts of each actual case."

382. [382]
     In addition to not being a mandatory instrument, clause 11.8 of the Guideline, provides that a record should be kept of the alternative duties considered and the reasons they were deemed to be unworkable.  The Guideline does not dictate the keeping of a record.  It also sets out relevant factors for the decision maker to consider when determining whether alternative duties are available.  These too are not mandated and are written as "may include (but are not limited to):

1. (i)
   whether the provision of alternative duties will address any risks identified as being associated with the alleged conduct/performance issues if the employee remains in the workplace

2. (ii)
   the employee's skill set
3. (iii)
   the availability of duties or meaningful work required to be performed in the current or an alternative location."

383. [383]
     Mr Rallings' evidence is that he did consider there was a risk associated with the performance issues if Ms Parer remained in the workplace because of concerns about the discharge of her supervisory responsibilities.  He also considered that administrative duties would be punitive given her classification.

384. [384]
     The Commission accepts that Mr Rallings misinformed SMA about the record of alternative duties considered as the evidence is clear that no such record was made.  As a result, it could not have been retained or provided.  Despite this unfortunate misrepresentation, it is clear that Mr Rallings made his decision about the availability of alternative duties consistently with the Guideline.

2. (b)
   The Decision to Suspend

385. [385]
     Allegations of reprisal:  After the letter of suspension was provided to Ms Parer, SMA sent multiple letters to Mr Rallings and Mr Woods about a range of matters.  One of those letters dated 26 June 2015 alleged that the suspension of Ms Parer could be characterised as an act of reprisal.  This contention was primarily based on the suspension of a senior officer for allegations relating to her supervision were "without precedent" in Crown Law and that Ms Parer's complaint against Ms Freemantle was unresolved.  The disciplinary treatment of Ms Parer was compared to that of Ms Freemantle and found seriously wanting.

386. [386]
     It does not matter that other Crown Law staff had not been suspended for the performance of their subordinates.  Mr Rallings gave evidence that he had previously suspended a QCS employee for the deficiencies in the performance of a subordinate.  Arguments about comparative treatment are also unhelpful.  This application is not about whether Ms Parer was treated fairly and reasonably or whether the suspension was fair, reasonable or lawful.^[58]  The issue is whether Mr Rallings engaged in prohibited conduct because of a prohibited reason. 

387. [387]
     Mr Rallings' response to the letter from SMA was prepared for him by Crown Law.  The response to the allegation of reprisal shows that the allegation of reprisal was understood to be directed to him:

"I strenuously reject the suggestion that my decision to suspend Ms Parer from duty is in any way connected to her complaint, is an act of reprisal or was informed by improper purpose.  I have not read Ms Parer's complaint or been involved in any way with the complaint procedure.  No direction or instruction has been given to me from the Director-General or any other person about my decision to suspend Ms Parer from duty and I have no preconceived notions in relation to this matter.  I therefore also strenuously reject the suggestion that I am in any way biased."

388. [388]
     Mr Rallings' affidavit also addressed the reasons Ms Parer was suspended in the context of the allegations of reprisal.  He reiterated that his reasons were based on the first Sorbello report which raised "serious performance concerns on its face to proceed directly to suspension (knowing that Mr Weston and Ms Parer would be given the opportunity to respond relatively soon)."  He could not recall being given any background to the report beyond that a number of issues had arisen about the adequacy of Mr Weston's and Ms Parer's professional practice which required independent review.  Further, he did not have any direct interest in obtaining a particular outcome for Ms Parer.  He could not recall meeting Ms Freemantle and only knew the Crown Solicitor through attendance at the DJAG Board of Management.  Mr Rallings did not also see any need to seek information about Ms Parer's complaint.

389. [389]
     For these reasons, Mr Rallings said the allegation of reprisal action was not taken into account when he came to make the decision whether to issue the first show cause letter.

390. [390]
     In her reply submissions, Ms Parer submits that the allegation of reprisal was not directed at Mr Rallings but at Crown Law.  That proposition must be rejected.  After making the allegation of reprisal, the letter from SMA then addresses what Mr Rallings is required to do as the decision maker and proposes a legal review.  However, SMA state that such a review cannot be undertaken by Crown Law because of reasonably apprehended advisor bias and in this regard reliance is placed on the decision in Hot Holdings Pty Ltd v Creasy.^[59]

391. [391]
     The Commission considers the allegation of reprisal contained in the letter dated 26 June was directed to Mr Rallings.

392. [392]
     Consideration of Mr Rallings' reasoning:  The grounds alleged for the prohibited conduct in the application are different, in some respects, from the grounds alleged in the correspondence from SMA of 26 June 2015.  The only common ground is Ms Parer's complaint.  The other two grounds raised in the correspondence are not prohibited reasons and do not require consideration. 

393. [393]
     The Applicant lists a series of "critical expected material" relevant to the suspension decision about which Mr Rallings was not briefed.  This material is said to include the source of the allegations, the background to her complaint; her contract of employment; the date she commenced in the ACS role and legal advice about the correct head of power for the suspension.

394. [394]
     Mr Rallings' evidence establishes that he would have made the decision to suspend Ms Parer whichever was the applicable PS provision.  His evidence was that he did not see a distinction between the expressions, "is liable" and "may be liable" for discipline.  He formed the view that she may be liable for discipline and as such, he believed that invoked s 189 of the PS Act.

395. [395]
     Mr Rallings gave evidence that the reasons for taking the suspension decision are those contained in the letter of suspension.  However, those reasons are hardly informative.  Although he did not state so in the suspension letter, his evidence shows that the reasons were solely based on the Sorbello report.  Despite that report not referencing Ms Parer, he formed the view that Ms Parer had responsibility for Mr Weston's failings as identified in that report.

396. [396]
     It was clear from his cross-examination that he had a reasonable understanding of the issues of concern in connection with the files and Ms Parer's responsibilities.  He had been provided with her Position Description which included as some of her key responsibilities that an ACS "manage and supervise the day to day operations of a specialist legal team" and "ensure Crown Law's commitment to a performance culture is maintained by dealing with performance issues in a proactive and timely manner."  His evidence showed his concerns about her management of the day to day operation of GR2 as it related to Mr Weston's performance and it can be reasonably inferred that he was concerned that she was not dealing with his performance issues.

397. [397]
     Mr Rallings also gave evidence about the reasons he did not consider she could be employed in any legal position or any other position.  Although he was criticised for misleading SMA about the record of alternative positions, his evidence exhibited the basis of his decision, viz., there was a risk associated with the performance issues if Ms Parer remained in the workplace and nothing other than her performance was the reason for not determining that she should be employed in an alternative position.

398. [398]
     Mr Rallings' evidence shows the material he relied on in making his decision.  It establishes that he was aware from the briefing note provided by Mr Woods that Ms Parer had lodged a complaint but he was not privy to the detail of that complaint, especially who the complaint was against and the reasons for the complaint.  He was unaware of Ms Freemantle's comment on 18 February and the connection Ms Parer made with the review of Mr Weston's files.  The briefing note informed him that he could not take the complaint into account when making the decision and there is no evidence that he did.

399. [399]
     Mr Rallings discounted in his evidence that he had any personal or professional interest in the outcome of the disciplinary process.  He did not see the allegation as being relevant to him or the decision he had to make.

400. [400]
     Mr Rallings was also not cross-examined about whether his decision to suspend Ms Parer was for any prohibited reason or motivated by reprisal although he was cross‑examined about whether his advisors were motivated by reprisal.

401. [401]
     Conclusion:  Mr Rallings was unable to provide detailed answers in cross-examination about the reasons he made certain decisions and the matters he considered on the path to his decision making.  I consider this was because of the stage of the process at which he made his decisions.  Although he did not provide the extensive answers that the Applicant was seeking and for which she criticises him in her submissions, I consider that he was able to articulate his reasons and reasoning process with enough particularity to show that he took into account relevant matters and did not consider prohibited reasons.

402. [402]
     Mr Rallings evidence, which I accept, establishes that his sole reason for deciding to suspend Ms Parer was because of her performance as a supervisor.  It was not because of any dissatisfaction with her industrial conditions or her complaint.

403. [403]
     Mr Rallings was aware that Ms Parer had made a complaint but unaware of the details of it.  His evidence shows that the complaint did not feature in his decision making and the surrounding facts and circumstances of the case and the available inferences do not disclose otherwise.

404. [404]
     I am satisfied that Mr Rallings made the decision to suspend Ms Parer on the basis of the information before him from the first Sorbello report evidencing performance issues on the part of Mr Weston which reflected in Ms Parer's performance and conduct as a supervisor.  I am also satisfied the decision was not made for any prohibited reason.

2. (ii)
   The First Show Cause Conduct

405. [405]
     The second instance of alleged prohibited conduct is Mr Rallings giving the first show cause notice to Ms Parer on or around 4 September 2015.  It is alleged that Mr Rallings engaged in this conduct because Ms Parer was dissatisfied with her industrial conditions and/or had made a complaint under an industrial law to a person who had capacity to seek compliance with that law.

406. [406]
     Consideration of Mr Rallings' reasoning:  Mr Rallings' reasoning was drawn from his consideration of the subsequent Sorbello reports and the information provided with respect to Allegations 8 and 9.

407. [407]
     His initial decision to move to the disciplinary process and issue the first show cause letter was made because he had reached the view that the Sorbello reports showed a pattern of conduct on Ms Parer's part that required her to show cause why she should not be disciplined.

408. [408]
     When he received the draft show cause letter it also contained Allegations 8 and 9.  He was cross-examined in relation to his knowledge and understanding of these allegations.  In relation to Allegation 8 his evidence was that he relied on the information taken from the system that had been provided.  He considered that information established the foundation for each of these allegations to be made.  There is no evidence of substance either in chief or under cross-examination about Allegation 9.

409. [409]
     While Mr Rallings was aware that Ms Parer had made a complaint, he was not cross‑examined on whether he decided to issue the show cause letter because Ms Parer was dissatisfied with her industrial conditions or had made a complaint to a person who had the capacity to seek compliance with an industrial law.

410. [410]
     The correspondence from SMA following the suspension decision alerted Mr Rallings that reprisal action was being alleged for the reasons set out but he paid no heed to it, believing it to be not applicable to him even though the allegation was directed at him personally, not others.  Because of this he did not make inquiries of his advisors as to whether they or other Crown Law officers were so involved.  

411. [411]
     Conclusion:  I am satisfied that Mr Rallings made the decision to proceed to the disciplinary process on his own initiative.  There was no consideration of Ms Parer's industrial conditions or her complaint.  The substantial and operative reason was his assessment of the further Sorbello reports and how they raised a pattern of conduct on the part of Ms Parer in respect of her supervision of Mr Weston.

412. [412]
     His evidence also showed that he considered there was objective evidence (from Visualfiles) to support Allegation 8 being made.

413. [413]
     I accept his evidence about the reasons he decided to issue the first show cause letter and they were not because of the reasons in s 104(1)(i) or (l) of the IR Act.

(iii) The Second Show Cause Conduct

(iv) The Threatened Termination Conduct

414. [414]
     The third instance of alleged prohibited conduct is Ms McDermott finding Ms Parer liable for disciplinary action under the PS Act.  The fourth instance of alleged prohibited conduct is Ms McDermott's threat to terminate Ms Parer's employment.  It is alleged that Ms McDermott engaged in each of the prohibited conduct because Ms Parer was dissatisfied with her industrial conditions; and/or had made a complaint under an industrial law to a person who had capacity to seek compliance with that law; and/or that she had participated in proceedings under the IR Act, an industrial law.

415. [415]
     It is convenient to deal with these two instances of alleged prohibited conduct together as the proposed penalty of termination was included in the second show cause letter.  The reasoning is common between the decisions.

416. [416]
     Commission proceedings and the disciplinary process:  On 4 November 2015, Ms Parer lodged the s 120 application in the Commission.  A conference was held and a consent order made including that Ms Parer provide her response by 11 January 2016.  On learning of the application, Mr Rallings instructed that the disciplinary process be stayed so that the legal process could take its course.

417. [417]
     However, Ms Parer filed further proceedings in the Commission on 16 December 2015. 

418. [418]
     Mr Woods advised Mr Rallings by email that these proceedings did not give rise to any requirement to further delay the disciplinary process.  Mr Woods recommended that he proceed with it.  Mr Rallings gave evidence that he assumed that the source of Mr Woods' advice was Crown Law.  Mr Woods confirmed the advice had been given by Crown Law and Counsel.

419. [419]
     Mr Rallings said it was his usual practice to proceed through a disciplinary process as expeditiously as possible.  He considered that Ms Parer had been provided with adequate time and resources to provide a response particularly as she was legally represented.  He instructed Mr Woods to proceed with the disciplinary process.  On 24 December, Mr Woods advised Crown Law that Mr Rallings had endorsed the recommendation to proceed with disciplinary action and instructed them to prepare the second show cause notices.

420. [420]
     That the process had been re-commenced was not made known to Ms Parer.  She only became aware of it on receipt of the second show cause letter.

421. [421]
     Ms Parer takes issue with the disciplinary process remaining on foot.  She was of the understanding from her legal advice that the show cause process would be put on hold once the application was made.  She claims the disciplinary process was recommenced as a consequence of her filing her declarations application on 16 December 2015.

422. [422]
     Perhaps it was reasonably obvious from the content of the application for declarations that Ms Parer had no intention of complying with the consent order given the issues raised in it.  However, she did not provide any formal advice to Mr Rallings that she had decided not to comply and her response was not due for another few weeks.  Before Ms Parer could show whether she was complying or not, Mr Rallings made the decision to reactivate the disciplinary process.

423. [423]
     No allegation is made against Mr Rallings that he engaged in prohibited conduct because Ms Parer participated in proceedings in the Commission.  The allegation against Mr Rallings is that he lacked good faith in revoking the stay on the disciplinary proceedings and his failure to tell Ms McDermott of this.  The allegation that Mr Rallings lacked good faith in revoking the stay is made, it seems, because an allegation of prohibited conduct for so doing  has not be made against him.  At the point he revoked the stay Mr Rallings remained responsible for the disciplinary process.

424. [424]
     It might have been sound management practice for Mr Rallings to have informed Ms Parer of his decision but he was not required to do so.  The criticism made against him could equally be made about Ms Parer given her conduct in not advising of her decision not to comply with the consent order. 

425. [425]
     There was also no requirement for Mr Rallings to advise Ms McDermott of his actions once he decided to reactivate the disciplinary proceedings or on his subsequent return from leave as he had been relieved of his delegation.  The lack of good faith allegation is rejected.

426. [426]
     The above sequence of events shows that Ms Parer participated in proceedings in November 2015 with the conciliation conference and on 7 March 2016 when she participated in proceedings in respect to her s 120 application, the declarations application and in applications related to them.  Ms McDermott was given the initial delegation instrument on 16 March 2016.  The circumstance that Ms Parer had participated in proceedings under the IR Act is made out.

427. [427]
     The decision to resume the disciplinary process was made within about a week of the declarations application being filed.  Although Ms McDermott did not make the decision and inherited it on being given the delegations, she ultimately decided to issue the second show cause, including the proposed disciplinary penalty of termination.  The Respondent has the onus of proving that Ms McDermott's decision to issue the second show cause, including the proposed disciplinary penalty of termination, was not because of the prohibited reason that Ms Parer had participated in proceedings under an industrial law.

428. [428]
     Ms McDermott's evidence makes clear that she knew little about the proceedings in the Commission, that Mr Rallings had halted the disciplinary process in November and reactivated it temporally with the filing of the declarations application.  It is therefore necessary to consider whether Ms McDermott's reasoning process for the two decisions was infected by a prohibited reason because she did not have sufficient knowledge or understanding about the context in which the decisions were being made.

429. [429]
     Ms McDermott addressed the reasons the disciplinary process was reactivated in the second show cause letter.  She referred to the s 120 application filed in the Commission on 4 November 2015, the conference that was held and the consent orders made.  She noted that Ms Parer was to have provided her response to the first show cause letter by 11 January 2016.  She failed to do so and had not pressed, at the time of filing the s 120 application or subsequently, her application for an interlocutory injunction.  Ms McDermott advised she had determined to proceed with issuing the findings on the allegations on the basis that Ms Parer had been given ample opportunity to respond to the allegations which had been provided about seven months previously.

430. [430]
     Consideration:  Ms McDermott's evidence establishes that her knowledge of the Commission proceedings was negligible.  It is clear that the matters about the proceedings set out in the second show cause letter above were not matters within her knowledge.  The decision to proceed with the process and the reasons given for so doing were those of Mr Rallings.  Both Mr Rallings and Ms McDermott denied they had had conversations about the disciplinary matters except in relation to the delegations.  In the circumstances Ms McDermott had to have relied on the reasons set out in the draft correspondence as to why the disciplinary process was reactivated.

431. [431]
     The second show cause letter was settled by Counsel.  No claim was sought to be made or an inference proposed that then Counsel was engaged in any prohibited conduct.  In my view Counsel's involvement is one factor that militates against a finding that Ms McDermott was so engaged. 

432. [432]
     It is important to recall though that the alleged prohibited conduct is that Ms McDermott found Ms Parer liable for disciplinary action and proposed the penalty of termination because of various prohibited reasons, most relevantly participation in proceedings.  The alleged prohibited conduct is not that Ms Parer was injured or disadvantaged in her employment when the disciplinary process was reactivated because she had participated in proceedings.  The prohibited conduct is Ms McDermott finding Ms Parer liable for disciplinary action and proposing the disciplinary penalty of termination.  Given the claims made in the application, my decision is focused on Ms McDermott's reasoning process for the decisions she made.

433. [433]
     Although Ms McDermott was entitled to rely on the draft correspondence, for the reverse onus to be discharged, she is required to have brought her own independent judgment to the decision and establish that the operative and substantial reason for the conduct was not a prohibited one.  Ms McDermott confirmed under cross-examination that the decisions she made were solely based on the material with which she was provided.  She agreed she signed the letter as it had been drafted with perhaps one word being different.  However, her reliance on that material is not evidence of an absence of independent judgment being brought to bear.

434. [434]
     Ms McDermott spent considerable time working through the documentation she was provided.  She wrote a contemporaneous email stating that she had a responsibility to read the documents in detail.  Having done so she reached the conclusion that the allegations could be substantiated based on the information before her and the second show cause letter should be issued.

435. [435]
     Ms McDermott was aware that Ms Parer had made an employee complaint from the documents filed in the Commission.  She was also aware of the content of that complaint.  Her evidence was that she did not see it as relevant to the decision she was required to make.  Further, none of Ms Parer's industrial conditions bore any influence on her decision making.

436. [436]
     Ms McDermott denies that a factor in her decision to issue the second show cause was because Ms Parer had participated in proceedings.  She made her decision solely on her review of the brief and her view that the allegations had been substantiated on the material before her.

437. [437]
     Ms McDermott's evidence denying that she proceeded to issue the second show cause for a prohibited reason was unchallenged.  So too was her reason for proposing the penalty of termination of employment.

438. [438]
     Conclusion:  Ms McDermott's evidence that she thoroughly and methodically read the material was not undermined on cross-examination.  Further the draft correspondence prepared by Crown Law (and settled by Counsel) was used for the purpose of communicating her decision.  Her evidence is that she came to her own view and ensured she agreed with the findings set out before approving its issue.

439. [439]
     Ms McDermott's reasoning and her reasons given in evidence show the true reasons for her decision were that the allegations could be substantiated in part.  Her reasoning does not disclose that Ms Parer's participation in the Commission proceedings was either a substantial or operative factor or a factor at all in her decision.

440. [440]
     Any connection between Ms Parer's participation in proceedings and the second show cause conduct and the threatened termination conduct was temporal.  The second show cause conduct was engaged in not because she had participated in proceedings but because she had not responded to the first show cause letter. 

441. [441]
     Ms McDermott's evidence is that she was initially concerned whether the allegations concerning Ms Parer's supervision were serious enough to warrant the penalty of termination.  However, the issues raised in Allegation 9 about misrepresenting a legal letter caused Ms McDermott to decide the proposed penalty was warranted.  This evidence shows she exercised independent reasoning and judgement in reaching her decision.

442. [442]
     Neither her decision to find Ms Parer liable for disciplinary action nor her decision to propose the penalty of termination of employment bore any relationship to any of the claimed prohibited reasons.  Her substantial and operative reasons for the two decisions she made were those that she gave in evidence.

443. [443]
     The Respondent has discharged its onus.

11. ORDERS

444. [444]
     The application is dismissed.

445. [445]
     In the event the application was partially or wholly dismissed the Respondent reserved its rights to seek costs.  In the circumstances the Commission reserves the question of costs.