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Lawler v Gold Coast City Council[2016] QIRC 139

Lawler v Gold Coast City Council[2016] QIRC 139

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lawler v Gold Coast City Council [2016] QIRC 139

PARTIES:

Lawler, William Huxley

(Applicant)

v

Gold Coast City Council

(Respondent)

CASE NO:

D/2015/93

PROCEEDING:

Arbitration of an Industrial Dispute

DELIVERED ON:

12 December 2016

HEARING ON:

16 and 17 May 2016

MEMBER:

Deputy President O'Connor

ORDERS:

  1. The application is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - ARBITRATION OF AN INDUSTRIAL DISPUTE - Conciliation unsuccessful - Referred to arbitration - Where the applicant submitted a formal grievance to his employer regarding bullying and harassment - Where the applicant contends the resulting investigation did not address the real issues raised in his grievance.

CASES:

Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6

Bropho v Human Rights & Equal Opportunity Commission [2004] FCAFC 16

Minister for Immigration and Citizenship v Li [2013] HCA 18

APPEARANCES:

Mr WH Lawler, the applicant

Mr MJ Wichlinski for the respondent

Decision

  1. [1]
    The applicant filed a Notice of Industrial Dispute on 21 December 2015. The subject matter of the dispute was set out in the application as follows:

"I raised grievance regarding my direct line manager (Manager City Planning) bullying and harassing me, which was curiously and poorly investigated. I had suffered this since January 2014 and it has had a significant effect on my health which has been diagnosed and is currently being treated by medical specialist.

During the investigation I reported to another manager (Manager Business Support).

The investigation report found that my grievance was not substantiated despite obvious and clear evidence to the contrary, and multiple similar instances experienced by me, and corroborated by other staff. The investigation did not afford me natural justice, nor were witnesses given the opportunity to review and confirm their recorded statements. The investigation recommended that I be issued with a punitive letter of expectation, and that I continue to report directly to the manager was a bullying and harassing me.

I have escalated my concerns to the Director Planning and Environment and subsequently the CEO to no avail. They supported the investigation outcomes.

I was subjected to a number of adverse decisions as punitive action by management during the course of the investigation process. I was victimised.

I have been informed in writing (16 December 2015) that my original reporting arrangements will be reinstated on 4 January 2016."

  1. [2]
    The dispute was subject to a conference before Industrial Commissioner Black on 5 January 2016. The parties were unable to resolve their differences during the conference and the applicant requested that the dispute be referred for arbitration. The dispute was formally referred to arbitration on 1 February 2016.
  1. [3]
    Three questions were identified as needing to be arbitrated:
  1. (i)
    Whether the investigation process was fair;
  2. (ii)
    Whether the investigation findings were reasonably open on the relevant facts and circumstances; and
  3. (iii)
    Whether the responses of the Gold Coast City Council to the investigation report were adequate.

Relevant history

  1. [4]
    The applicant commenced employment with the City of Gold Coast in June 2010 as the Executive Co-ordinator, Environment and Climate Change. At the time of making this application, he directly reported to the Manager City Planning, Ms Kim Mahoney. Ms Mahoney commenced employment with the Council in mid to late 2013.
  1. [5]
    The Commission was told by the applicant he was subjected to bullying and harassment by Ms Mahoney since January 2014.  He said he emailed the Director of Planning and Environment, Ms Currie on 22 July 2015 outlining briefly his concerns about being bullied and harassed by Ms Mahoney.[1]
  1. [6]
    On 30 July 2015, the applicant lodged a formal grievance with his employer regarding alleged bullying and harassment by Ms Kim Mahoney.  The applicant claims he had been subjected to bullying and harassment since January 2014.  He further claims the behaviour escalated to such a point that it had a detrimental impact on his health.
  1. [7]
    The Council completed the investigation into the claims of the applicant on 4 September 2015 and provided a copy of the report to the applicant.
  1. [8]
    The findings contained in the investigation report are as follows:

  "D.  FINDINGS

It appears to be the case that Ms Marney and Mr Lawler have significant behavioural and personality clashes. The majority of Mr Lawler's allegations have not been substantiated on the balance of probabilities and the allegations that have been substantiated have been deemed to be reasonable management action. It is the view of the investigators so that the employees Ms Marney managers have fundamental concerns regarding her management style and approach to such extent that some have sought third-party copying (sic) assistance.

It appears to the investigators that a clear conversation around expectations should be facilitated by Diane Curry with Ms Marney with respect to timeliness, work plans and diary management."

  1. [9]
    The report made the following recommendations:[2]

 "1.Arrange Leadership Coaching for Ms Mahoney;

 2.Set clear expectations with Ms Mahoney's team to the effect that:

  • Reasonable and Lawful Management direction must be followed; and
  • Time frames and requests for information come from the Director and you as Director expect the team to provide the requested documents, work plans etc to Ms Mahoney in the timeframes communicated.
  1. Meet with Mr Lawler to convey the outcome of his grievance.
  1. Meet with Kim Mahoney and advise her of the outcome of the investigation."

The Applicant's Case

  1. [10]
    In the opening of his case, the applicant said:

I will also show, sir, that the investigation was not reasonably open to the facts and the circumstances by failing to appropriately identify and highlight in the investigation report that four direct reports to Ms Mahoney were seeking professional medical treatment from psychologists despite this information being present within her own notes and being attached to the report within the appendices. 

I will also show the investigation was not reasonably open to the facts and circumstances by the investigators and the director of planning and environment intentionally dismissing the graveness and magnitude of health impacts to Mr Heyson and Mr Neppom (sic), stating that they were already receiving medical treatment for other matters, finding that wherever it was substantiated that Ms Mahoney did exhibit an alleged behaviour, that this was considered to be reasonable management action without providing sufficient explanation, and by dismissing outright evidence that I provided that disproved the counter allegations made by Ms Mahoney upon which investigation findings and recommendations were ultimately made.

Sir, by establishing that the investigation process was not fair, and indeed flawed, and that the investigation was not reasonably open to the facts and circumstances, by extension I will demonstrate that the issue at hand has not been identified nor categorised or classified, and, therefore, that any response would not be adequate, and so I refer to the – back – just at this point to the terms of this hearing that are being arbitrated.

  1. [11]
    It was the applicant's contention that the investigation failed to diagnose the "root issue" of his concerns.  In failing to do so, the applicant said he remained at serious risk of ongoing workplace injury.
  1. [12]
    The applicant told the Commission that he believed that Council had victimised him by: (i) not allowing him to work outside Council despite satisfying, in its entirety, the policy and procedure for doing so; (ii) by taking away any opportunity for him to apply his skills in a US AID project for which he was billed as the project manager and the point person; and (iii) by refusing him the opportunity to be redeployed within Council.
  1. [13]
    Further, the applicant argues that the issuing of a letter of expectation based on unsubstantiated counter-claims by Ms Mahoney, to which he was not given an opportunity to respond, was a punitive measure in response to his grievance.
  1. [14]
    In a memorandum of 22 September 2015[3] addressed to Ms Currie, the applicant complained about the manner in which the investigation was conducted. In particular he wrote: "I believe the investigation report failed to address the real issue, that being the systemic and pervasive nature and cumulative impacts of the alleged behaviours, by considering the matter through a flawed interpretation of "balance of probabilities" and by considering the behaviours discretely and independently."
  1. [15]
    The applicant told the Commission that there were significant shortcomings with the investigation process and the outcomes of the investigation report. He said that in his view the investigation process was not fair, and indeed, investigators and management were negligent in failing to set the terms and scope of the investigation to ensure it addressed his primary issue.
  1. [16]
    The applicant asserts that his "primary grievance" was having to be subjected to persistent passive aggressive and aggressive behavior by Kim Mahoney since January 2014. It is this grievance, he submits, which was not adequately dealt with.
  1. [17]
    The applicant called three witnesses. Mr David Mepham, City Parking Coordinator; Ms Sonja Maurer, Project and Research Officer; and Mr Edward Haysom, City Architect.
  1. [18]
    Mr David Mepham gave evidence that he had never observed bullying or harassment by Ms Mahoney towards other staff nor did he observe any bullying by Ms Mahoney towards the applicant. In relation to his own interaction with Ms Mahoney he told the Commission that he believed that Ms Mahoney was prone to bullying and that she had a management style that needed to be corrected.
  1. [19]
    Mr Mepham was asked if he could identify in the investigation report which was his witness statement. He believed that witness statement seven was his. The applicant asked Mr Mepham: Do you feel that the witness statement accurately captured your views and indeed, the weight and magnitude of your concerns?   I think it’s a reasonable record of the interview.
  1. [20]
    In cross-examination, he accepted that he did not hold Ms Mahoney 100 percent responsible for his need to seek medical assistance but it was a substantial reason.
  1. [21]
    Ms Sonya Maurer, a Project and Research Officer with the Council gave evidence that she believed she had been bullied by Ms Mahoney. Her evidence was that Ms Mahoney had bullied her by being verbally condescending and had withheld certain duties which she would have normally performed. In her affidavit, Ms Maurer said that the "… biggest complaint was not her management style but rather her personal attacks on staff under her supervision."
  1. [22]
    During the course of the investigation, Ms Maurer was not required to report to Ms Mahoney. Under normal circumstances, it would appear that Ms Mahoney was not Ms Maurer's direct report and appeared to have limited contact with her. Ms Maurer said that he immediate supervisor was the Acting City Architect.
  1. [23]
    Ms Maurer accepted that the findings of investigation report, namely, nitpicking, criticism of subordinate staff, the imposition of arbitrary timelines, picking-up faults and questioning staff's abilities, were accurate.
  1. [24]
    In examination-in-chief, the applicant asked:

But if I suggested to you that they were some of the key findings, would you agree with those?---Yeah, I would agree with those – those findings.  It’s – it’s hard to say.  I mean, as I said, my affidavit is quite long, and that’s the statements that I gave to Ms Waller and ...

  But they’re the sorts of things that you complain about?---Yes, they were.[4]

  1. [25]
    Ms Maurer said that she was shocked to hear that Ms Mahoney was only required to undertake management training. She told the Commission that she was quite emotional during the interview and that "…there was a lot of placating" but the investigators had assured her there was going to be a positive outcome and not to worry. 
  1. [26]
    In cross-examination, Ms Maurer was asked if an example of the alleged bullying by Ms Mahoney related to a complaint from a co-worker over a conflict between employees as a result of a Facebook post. Ms Maurer also accepts that a further example of Ms Mahoney's alleged bullying was based on the fact that Ms Mahoney had never bothered to inquire about Ms Maurer's position or ambitions within the Council.
  1. [27]
    In the affidavit of Ms Maurer she deposes that her immediate supervisor, the Acting City Architect, was treating her with the same disrespect and bullying as she alleged against Ms Mahoney.
  1. [28]
    Edward Haysom, the former City Architect commenced his employment with the Council in April 2014 and resigned in October 2015. He told the Commission that he was micromanaged, questioned and challenged by Ms Mahoney.
  1. [29]
    In his affidavit Mr Haysom deposes:

"The situation deteriorated to where I was unable to come to the office one morning as my blood pressure had climbed to dangerous levels. I was so worried about my health that I went to see my GP in Brisbane who diagnosed a high level of stress and recommended that I take immediate stress leave, which I subsequently did. At that stage I was also taking anti-anxiety medication to allow me to sleep and blood pressure tablets to reduce my blood pressure."

  1. [30]
    Mr Haysom told the Commission that the reason that he resigned was that Ms Mahoney had replaced him with David Hood on what was described as the Southport project together with deteriorating relationship with Ms Mahoney. He claimed that he was ambushed by Mr Hood (and supported by Ms Mahoney) at a meeting in September 2015 dealing with the Urbis Height Study.
  1. [31]
    It was accepted by Mr Haysom in cross-examination that Mr Hood and not Ms Mahoney had led the "ambush" against him. He further accepted that when he challenged Ms Mahoney over being replaced by Mr Hood she informed him that the decision to replace him was made by Ms Currie and not by her.
  1. [32]
    It is apparent from the Mr Haysom's evidence that there were other issues impacting on his life. In particular, a marital separation. In this regard his evidence was:

I don’t want to start talking about my divorce and separation here, because I don’t think it’s appropriate, but I was having a – I was having issues some time before that, and – and I think from time to time I [indistinct] before, I suppose, but I – otherwise we were working towards a amicable separation, but sometimes it’s a bit harder, and I could deal with that.  Then I’d go and work with the council, and I – and I could [indistinct] with the council problems and this – this micromanagement and all the other stuff that was going on at the council, but when you put them together, of course it makes things very difficult, so I went to see my doctor – my GP [indistinct] and we talked.  We talked a bit.  My blood pressure’s up.  I – I was having problems sleeping at night.[5]  

  1. [33]
    Mr Haysom acknowledged that his relationship with Ms Mahoney was only part of the reason he sought medical assistance.[6]

Was the investigation process fair?

  1. [34]
    The investigation was initiated by Council in response to the grievance lodged by the applicant.
  1. [35]
    The investigation report deals with each of the 19 behaviours set out by the applicant to support his assertion that he was subjected to persistent passive aggressive and aggressive behavior by Ms Mahoney.
  1. [36]
    Ms Currie told the Commission that in response to the grievance lodged by the applicant she changed the applicant's reporting line from Ms Mahoney to Ms Zara Meha, Manager Business Support Branch. She stated that whilst Ms Meha does not have an environmental planning background, she has experience in human resources and therefore she believed that Ms Meha was the logical liaison person for the applicant to report. 
  1. [37]
    The investigation was undertaken by Ms Jodie Waller, Senior Business Partner and Ms Suzanne Bonnette, Business Partner, People and Culture Department. The investigation was undertaken between 25 July 2015 and 25 August 2015 and involved interview of 11 witnesses either nominated by the applicant or Ms Mahoney. The names of the 11 witnesses are set out in the investigation report. All witness interview notes (de-identified) are attached to the report as Attachment 1. The report was completed on 4 September 2015 and a copy furnished to the applicant at a meeting held with the applicant on or about 14 September 2015.[7]
  1. [38]
    The applicant contends the investigation process undertaken by the respondent was unfair.  He submits that "…the investigation was flawed based on evidence of bias, lack of procedural fairness and natural justice, and failure to bring substantiated allegations to the findings and recommendations of the report. By extension I contend that Council failed to adequately respond."
  1. [39]
    The evidence of Ms Waller was that in assessing the evidence she applied the "balance of probabilities" test. She said she applied the test based on the weight of various witnesses rather than a simple calculation of how many witnesses agreed with the applicant's allegations. The Commission was told that the applicant disagreed with the approach adopted by Ms Waller and, of course, the outcome of the report.
  1. [40]
    Ms Waller had an initial meeting with the applicant to discuss the outcomes of the investigation and a further meeting to discuss the next steps. Ms Currie also met with the applicant prior to the Council's Chief Executive endorsing the report.
  1. [41]
    The applicant asked Ms Waller in cross-examination:

Is there a Council policy that sets out the scope in terms of such investigations that you were able to refer to?---There’s guidance with respect to the grievance policy that we have, but there’s – in terms of a – a flow chart or procedure, there’s nothing that specifically deals with scope.  Nor do I think that it needs to be prescribed that way.

Okay.  Thank you.  Given that, what mechanisms are in place to ensure that procedural fairness and natural justice are afforded in any such investigation?---In my view, working for the local government and the processes that are in place in terms of interviewing the witnesses – speaking with the complainant, interviewing the witnesses, the aggrieved having the chance to respond, interviewing their witnesses, consulting with the business for operational requirements, everybody having the chance to have their say, as well as people remaining free from bias, is essentially following the terms of natural justice.

Okay.  So how do you ensure that those opportunities were afforded and that people had the opportunity to have their say?---Sure.  Well, everybody was spoken to, everybody had a right of response.  We were independent to that particular area.  The Industrial Relations Work Force team are independent to the entire unit of Council.  And at the end of the day, the decision-maker in these cases are the manager and/or directors.  We are not the decision-makers.

Great. Okay. So ultimately the decision-maker was whom in this investigation?---I believe it was Dy Currie.

  1. [42]
    A meeting was convened on 14 September 2015 to discuss with the applicant the outcome of the investigation. At the meeting, the applicant requested a copy of the report and one was provided to him on 18 September 2015.
  1. [43]
    In the affidavit of Dyan Currie sworn on 20 April 2016 she deposes that:

"10.I arranged a meeting with Huxley, Kim and Jodie to discuss the outcome of the investigations. When we met with Huxley and Kim, Huxley asked for an overview of the outcomes and then some time to digest the proposal followed by a further meeting.

  1. The outcome of the investigation grievance found that, while there were questions around Kim's management style, the allegations of bullying and harassment were unsubstantiated. The outcome appeared to be in accordance with my observations and I certainly felt there were behavioural improvements that could be made by both Kim and Huxley. I had personally observed aggressive behaviours from Huxley that were not contributing to an ongoing positive relationship.
  1. Huxley was concerned about the outcome of the investigations and asked for a further meeting with myself and Jodie to discuss specific points of the investigation including the meaning of "the balance of probabilities" and how it was used against the evidence of the investigations."
  1. [44]
    In the memorandum of 22 September 2015, headed "Response to Grievance Investigation Report into Kym Mahoney", the applicant wrote:

"Thank you for briefing me (14 September 2015) on the outcome of the internal investigation into the grievance lodged by myself against my immediate supervisor Ms Mahoney, and for articulating Council's intended course of action to issue me a "letter of expectation", offer the City Planning leadership team communications training, and have me again report directly to Ms Mahoney.

Thank you also for providing me a copy of the investigation report on 18 September 2015.

Given the matter has the potential to impact the health and safety of myself and other staff, in good faith I would encourage further consideration of a number of matters below."

  1. [45]
    The applicant set-out a series of matters in which he believed the report was inadequate or failed to address his concerns.
  1. [46]
    On 23 September 2015, the applicant again met with Ms Currie to discuss the matters raised in his memorandum.
  1. [47]
    Ms Waller told the Commission that she considered the matters raised by the applicant in his memorandum of 22 September 2015 but did not change the report as a consequence.
  1. [48]
    The applicant sent a further memorandum dated 8 October 2015 to the Council's Chief Executive, Mr Dale Dickson.
  1. [49]
    There is no evidence before the Commission to support a conclusion of bias in the conduct of the investigation nor is there evidence before the Commission to support a conclusion that there was a lack of procedural fairness or natural justice.
  1. [50]
    Gleeson CJ in Re Minister for Immigration and Multicultural Affairs; Ex parte Lam  ('Re Minister'), in discussing the manner in which procedural fairness cases are approached by the courts, said (at [37]):

"Fairness is not an abstract concept. It is essentially practical. Whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice."[8]

  1. [51]
    In my view, it is not correct to assert that the investigation report does not deal with his "primary" allegation that he has been subjected to persistent passive aggressive and aggressive behavior by Ms Mahoney. It would, in my view, be impossible to properly assess the applicant's grievance absent a reference to the behaviours identified by him to support his allegation. To try and assess the grievance in the abstract would have presented the investigators with an almost impossible task.  

Were the investigation findings reasonably open on the relevant facts and circumstances?

  1. [52]
    The following four allegations were substantiated:
  1. (i)
    "Kim also criticises other subordinate staff, points out their faults (e.g. highly critical of Peter Owen who resigned as a result), David Mepham and Jack Bryce questioning their ability. Demeaning towards Mark Lawler about his quiet style and approach, critical of my assistant Michelle Lambert, told me that Zara Meha didn't like men and that Mr Lawler needed to be careful".
  1. (ii)
    "Ongoing nit-picking and criticism of all types of internal and external documentation produced by myself and team, multiple (in the tens) reviews of documents to no material benefit a view shared by my coordinators and others in the office."
  1. (iii)
    "Kim places unnecessary and arbitrary timelines and deadlines around work, only to have them sit with her for weeks and weeks and weeks. This places unnecessary (and out of priority) emphasis on tasks which impinges on our work plans and "real" deliverables. There is common acknowledgement of this throughout the branch. This places unnecessary pressure on myself and others and has a real impact on the culture of the branch."
  1. (iv)
    "On one occasion recently clear Kim admitted to me that she did not trust me. I'm unsure what this means for me."
  1. [53]
    Many of the behaviours identified by the applicant in his grievance letter border on the petty and nonsensical. Indeed, many are incapable of being properly investigated as they concern the state of mind of the applicant. By way of example, the applicant alleges that "Kim often embeds doubt in me" and "While I accept this is about others, the constant criticism of others makes me also wonder what she says about me – together with other behaviours as outlined herein, I assume the worst" or "Attempted to invite Kim for coffee meetings to change this but did not agree."
  1. [54]
    There can be little doubt that the evidence before the Commission supports the investigation finding that "Ms Mahoney and Mr Lawler have significant behavioral and personality clashes."
  1. [55]
    The evidence of Ms Mahoney was that her initial relationship with the applicant was on similar terms to the other Executive Coordinator's which she believed to be both professional and reasonable. Ms Mahoney's evidence is that her relationship with the applicant began to deteriorate in early 2014 after she had requested him to stop using a mobile phone during a meeting. She said that this had resulted in a tense conversation after she requested the applicant to stop using the mobile phone during the meeting. Ms Mahoney endeavoured to resolve the dispute by contacting the Council's Human Resources Department in the first instance and had some discussions with the applicant to find an amicable solution.
  1. [56]
    Ms Mahoney recalled that sometime in June 2014 she was part of a day-long workshop for Executive Coordinators. A facilitator with extensive experience in human resources was engaged to conduct the workshop in the belief that it would provide a good opportunity for the team to come together to grow and develop. Ms Mahoney's evidence was that the applicant attended the workshop with other Executive Directors and during the workshop all of them were challenged and participated in exercises to develop team morale and leadership skills.
  1. [57]
    Following a discussion on how Executive Coordinators were interacting, the applicant said that Ms Mahoney could not accept or understand his way of working. Ms Mahoney recalled that the applicant raised his voice at her and appeared to be angry that she was challenging him. She recalled that she felt intimidated by the applicant and had to leave the room to compose herself as she felt is that going to burst into tears. When she returned, the applicant apologised to her for his inappropriate behaviour.
  1. [58]
    The group continued to work with the facilitator during the workshop to resolve the issues between the applicant and Ms Mahoney. However, after that date working relations between the applicant and Ms Mahoney deteriorated. Ms Mahoney said that it became increasingly more difficult for her to obtain information from the applicant to ensure the work of the applicant's team was progressing. In early 2015, Ms Mahoney said she found it difficult to get answers from the applicant regarding his work and sometimes she could not account for where he was or what he was doing.
  1. [59]
    In or around June 2015 she told the Commission that she experienced difficulty in managing the applicant and continued to have communication issues with him. The applicant continued to refrain from providing her with information that was requested. During the regular catch-up meetings, she tried to resolve the issues between them regarding her management style. Ms Mahoney's evidence was that she thought she had found a reasonable common ground but the applicant lodged a grievance alleging bullying and harassment.
  1. [60]
    When Ms Mahoney became aware of the grievance against her she said she recalls being shocked by the allegations.
  1. [61]
    Ms Mahoney acknowledges that she is a person with high levels of attention to detail and she expects the best from her team and felt that the applicant considered those expectations as too high. She noted that the investigation report had identified and recommended that she should develop her personality and interpersonal skills to ensure that her expectations are conveyed appropriately.
  1. [62]
    In February 2016, Ms Mahoney commenced coaching and development and was undertaking a mentoring program for leadership and management consequent upon the findings of the investigation report. Ms Mahoney confirmed to the Commission that she was happy to continue to work with the applicant and is willing to attend all coaching and mediation sessions as Council considered necessary to assist in resolving the applicant's grievance.
  1. [63]
    The evidence of Ms Mahoney was not challenged by the applicant in cross-examination. The applicant did not dispute that he had become angry with Ms Mahoney; had raised his voice with her; or that he was slow in providing answers to the requests of Ms Mahoney regarding his work. He did not challenge the suggestion that Ms Mahoney sometimes could not account for the applicant's whereabouts or what he was doing.
  1. [64]
    However, as the evidence demonstrates, the issue with communication was not limited to access to the applicant's diary. As Ms Mahoney highlights, she found it difficult to get answers from the applicant regarding his work and how his team was progressing.
  1. [65]
    Ms Currie in her evidence said she had personally observed aggressive behaviours from the applicant that were not contributing to an ongoing positive relationship. 
  1. [66]
    It is not correct for the applicant to assert that the investigation did not address his primary concerns. Jodie Wallace was asked:

APPLICANT:   Thank you very much.  An unrelated question – did you at any stage consider the cumulative or collective nature of Ms Mahoney’s behaviour?---Yes.

  1. [67]
    Ms Wallace told the Commission that she spoke to Ms Currie about the sensitivity and concerns regarding the matter, and that Ms Currie felt that coaching with respect to Ms Mahoney and the team would alleviate the majority of the issues.  It was Ms Wallace's view, based on the investigation and the evidence that she had obtained, that this approach was adequate.
  1. [68]
    That was a finding which was reasonably open to make on the evidence. Equally, the conclusion that the investigation highlighted that the employees managed by Ms Mahoney have fundamental concerns regarding her management style and approach was equally open on the evidence before the Commission.  
  1. [69]
    The evidence before the Commission does not persuade me to the view that the findings of the investigation report were anything other than reasonably open on the evidence before the investigators.
  1. [70]
    In the email of 22 July 2015, Ms Mahoney sought amongst other things to finalise the work plans for the applicant and his team. What was sought was a summary of the work programs and tasks for each of the applicant's senior staff; an outline of what the applicant was doing on a daily basis and an approximate breakdown of the time spent by the applicant on each task; and an understanding of the nature and scope of the USAID partnership with Semarang in order to determine the work load and the impact this might have on current and planned work activities for 2015/2016.
  1. [71]
    Ms Mahoney indicated that the reason she needed to obtain the information to "clearly articulate the difference between projects and supervision etc. to understand how the work and tasks undertaken by you and your senior staff fit into the current and planned work activities for 15/16."
  1. [72]
    In response to the email of Ms Mahoney, the applicant wrote to Ms Currie in the following terms:

  "This is typical of how I am managed by Kim.

After 18 months it is becoming untenable. I have tried to address this on several occasions to no avail. Unfortunately I am left with no alternative other than escalate the matter - this is a call for help because my health is suffering. My next step is to contact P&C so I would be appreciative of your advice.

I am particularly concerned that escalating this matter will impact on my career and progression with GC, and hence my reticence to do so for quite some time. I seek your strictest confidentially.

  Tomorrow I will address the falsehoods within the email below."

  1. [73]
    Ms Currie replied on 22 July 2015 in the following terms:

"We are meeting next week so lets (sic) discuss then unless you feel it is more urgent? Pls advise if you do.

In the interim though, I have asked Kim to give me detailed work plans for your team as I would like to understand all senior staff roles and workloads. I am working my way through all teams to understand and to sort out the business plan for the year ahead. I think it is reasonable for Kim to ask and for you as the supervisor to be preparing work plans for your team. We do need to understand what you are doing and what work is planned for the year – including what will be deferred to allow the seminar rang project and that includes your tasks in addition to each sub team. I would also like to understand what role you are taking as the exec coordinator as I understand the Althena is handling all the budget meetings and was handling staffing requests last week which would normally be your role.

I am keen to understand why this concerns you?

Which comments are the falsehood she referred to in Kim's email?

Yes I would treat your comments with confidentiality."

  1. [74]
    On the face of the email of Ms Mahoney and the subsequent chain of emails between the applicant and Ms Currie, it could not be said that the requests contained in the email of 22 July 2015 were unreasonable. The request by Ms Mahoney was, in part, prompted by a desire of Ms Currie to gain a better understanding of the workloads of staff in the applicant's area of responsibility in order to properly plan for 2015/2016.  
  1. [75]
    Reasonable management action is a question of fact. Management action must be reasonable, but it need not be perfect, free of deficiencies, flaws or failings. The assessment of the behavior said to constitute unreasonable management action is an objective one. The word "reasonably" was considered in Bropho v Human Rights & Equal Opportunity Commission[9] where French J (as he then was) in the context of s 18D of the Racial Discrimination Act 1975 (Cth) said:

"It imports an objective judgment. In this context that means a judgment independent of that which the actor thinks is reasonable. It does allow the possibility that there may be more than one way of doing things 'reasonably'. The judgment required in applying this section, is whether the thing done was done 'reasonably' not whether it could have been done more reasonably or in a different way more acceptable to the court."

  1. [76]
    In Minister for Immigration and Citizenship v Li[10] Hayne, Kiefel and Bell JJ said that "The legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision − which is to say one that is so unreasonable that no reasonable person could have arrived at it.". Rather, their Honours said that: "Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification."
  1. [77]
    I accept that it was reasonably open for the investigators to conclude that the conduct of Ms Mahoney was reasonable management action taken in a reasonable way.

Whether the responses of the Gold Coast City Council to the investigation were adequate?

  1. [78]
    The applicant disagrees with both the outcome of the investigation and the requirement that Ms Mahoney undergo leadership training. In the applicant's view, Ms Mahoney ought to have been disciplined.
  1. [79]
    In determining whether the Council's responses were adequate, the Commission is only required to determine the adequacy of the Council's response in relation to the findings of the investigation report. It must determine the adequacy of the response in the sense that the response of Council was satisfactory or acceptable.
  1. [80]
    The report concluded that there were fundamental concerns regarding Ms Mahoney's management style and approach. As a consequence of that finding, it was recommended that Ms Mahoney undertake leadership coaching.
  1. [81]
    Ms Currie in her affidavit stated:

"23.The recommendations of the investigation report also provided for Huxley and Kim to attend leadership training so that if there were points of concern in either party in their interactions or interactions with other staff they could be given an opportunity to learn and improve. In order to action the training I directed People and Culture Staff by email to receive quotes regarding costs from various businesses and engaged a senior leadership coach in that regard grievance.

  1. It was proposed by the company that the training would be commenced with the mediation between Kim and Huxley before individual and private coaching. We were unable to facilitate mediation because Huxley has not been at work however leadership coaching has commenced for Kim and is ongoing."
  1. [82]
    The Council's post investigation report response was informed by the significant breakdown in relations between the applicant and Ms Mahoney.

To your knowledge what mechanisms have council implemented to facilitate the development of Ms Mahoney as a result of the investigation report?   Prior to the result of the investigation report, I’d undertaken to engage someone to do some external mentoring of a managers within the unit to provide them with some ongoing assistance.  Then, as a result of the investigation report, we deliberately engaged an external group to provide some ongoing assistance.  Their recommendation was to start that process by having an independent mediation exercise between Mr Lawler and Ms Mahoney.  That hasn’t been possible due to Huxley’s leave, but what I decided to do was to continue with that mentoring and training exercise in order to avail him of that work.  That has been continuing and I have been checking in on how that’s been undertaken.[11]

  1. [83]
    The applicant's perception have apparently given rise to a number of health issues for him. Nevertheless, I am not satisfied that there is any justification for the applicant's belief.  I find the adequacy of the Council's response in relation to the findings of the investigation report to be satisfactory.

Was the applicant subjected to punitive action?

  1. [84]
    The applicant contends in his application before the Commission that he was "subjected to a number of adverse decisions as punitive action by management during the course of the investigation process. I was victimized."
  1. [85]
    He identifies the following three areas to support his contention: (i) not allowing me to work outside council despite satisfying, in its entirety, the policy and procedure; (ii) by taking away any opportunity for me to apply my skills in a US AID project for which I was billed as the project manager and the point person; and (iii) refusing me the opportunity to be redeployed within the organisation. The applicant also identified in his written submissions that he regarded the issuing of a letter of expectation as being punitive measure. Whilst the allegation that the applicant was subjected to punitive action is not strictly part of the issues to be determined on this arbitration, he did nevertheless, raise punitive action as part of his original grievance lodged with the Commission. For completeness, I will address each in turn.
  1. (i)
    Not allowing me to work outside council despite satisfying, in its entirety, the policy and procedure.
  1. [86]
    On 5 June 2015 the applicant requested to undertake some paid consultancy work which he suggested was made in accordance with the Council's Work Outside of Council Policy. The relevant policy was not in evidence before the Commission.
  1. [87]
    The evidence of the applicant was that he sought approval from the Council Ms Currie said that the decision whether or not approval would be given was a decision for the Chief Executive of Council. Nevertheless, Ms Currie said that she could not support the application for undertake external work because she held concerns for the health and safety of the applicant.
  1. [88]
    The applicant asked Ms Currie

APPLICANT:   Yes.  Okay.  You refused my request on email dated the 22nd June 2015, and that’s also been entered into witness evidence.  That’s my document 9. In that document you cite that you required further detail and being concerned for my health and safety.  Is that correct?---Yes.  I’d need to check the specific words but that would – that’s my general recollection.

More detail was provided by me on the 23rd June. Again, that’s my document 9, confirming that I met the requirements for council’s work outside of council policy, and proposing even further conditions of a six-monthly review of working no more than eight additional hours in one week. And this was taken from council’s policy of further education and fatigue policy.  Do you recall or would you agree that you received that email?---I’d need to check the dates but, yes, I do recall receiving more information from you.

Okay. Thank you. In an email dated the 23rd of June, again document 9, you again refused my requests saying it was – required CEO approval and the CEO was on leave for some time.  

  1. [89]
    The application and the initial response from Ms Currie to undertake outside work was made at a time prior to the lodgment of the applicant's grievance. Ultimately, the Chief Executive had the responsibility to grant or refuse the application. Ms Currie maintained a consistent approach to the application and it is apparent to me that she was not influence by the applicant's grievance or the outcome of the investigation report.
  1. [90]
    Irrespective, the material before the Commission demonstrates, in my view, an ordinary exercise of management prerogative.
  1. (ii)
    By taking away any opportunity for me to apply my skills in a US AID project for which I was billed as the project manager and the point person.
  1. [91]
    The applicant sought approval to travel to Semarang, Indonesia on the 9th of October 2015. On 26 October 2015 the applicant was advised that approval to travel had been denied.  The evidence of Ms Currie, which I accept, was as follows:

Do you recall the basis on which you refused me the opportunity to travel to Semarang, Indonesia?---Your acting manager at the time, Zara Meha, came to me to ask – to raise the matter and to say that we were running out of time.  I don’t recall the specific dates you were away but you were away for a large component of that time.  She advised she was not aware of when you would be returning and we weren’t confident of that, needed to make a decision. 

 Yes ?---So, on the basis of operational need, we made the decision---

  1. [92]
    There is no evidence in my view to support a conclusion that the decision of the Council not to grant the applicant approval to participate in the USAID programme was anything other than an operational one made on the basis that the applicant was on sick leave and had been on sick leave for some time. It was, on the evidence of Ms Currie, necessary to make a quick decision. The Council decided to send another officer as it was entitled to do.
  1. (iii)
    Refusing me the opportunity to be redeployed within the organisation.
  1. [93]
    The applicant's written submissions do not deal with the issue of redeployment and it is unclear whether he has abandoned this part of his claim. He did however, state in his opening and did cross-examine Ms Currie on the Council's refusal to give him the opportunity to be redeployed.
  1. [94]
    The primary evidence of Ms Currie on the redeployment of the applicant is contained in her affidavit:

"25. Huxley works in a specialised field and, in terms of the structure, Huxley did approach me about an alternative reporting line within the Directorate. My Directorate consists of three branches including Business Support, City Development and City Planning which is a strategic planning branch for a Council. It is a highly specialised field of strategic planning which looks after all of Council's corporate strategic planning functions. The Environment Planning Team, that Huxley supervisors, best fits in the organisation under the City Planning Branch and shifting Huxley within the organisation would have Huxley reporting to a Manager with no technical background.

  26. The existing manager Kim Mahoney, is a very experienced strategic planning manager at her qualifications are designed to allow her to work across a range of strategic planning feels. The current reporting line for Huxley and the Environment Planning Team is the logical structure for the organisation."

  1. [95]
    Ms Currie decided to "hold off" returning the applicant to his original reporting line until such time as the coaching and development plan had been implemented and the applicant's concerns had been considered by the Chief Executive. Whilst the Council had given consideration to the possibility of allowing the applicant to undertake some short-term redeployment to allow him to come back to work it was not considered feasible because of the specialist nature of the applicant's work.
  1. [96]
    Ms Meha was of the view that the applicant was best located in City Planning. She believed that the applicant could not be transferred to another reporting line because of the specialist nature of the work undertaken by him.  Ms Meha's expertise was part of the Business Support Branch and she did not have the right expertise to supervise the applicant.
  1. [97]
    The decision of the Council not to redeploy the applicant is, on the face of the material, a reasonable one based upon the operational requirements of the Council.
  1. (iv)
    Issuing of a letter of expectation.
  1. [98]
    Notwithstanding the submission of the applicant, there were no investigation findings made against him. The applicant received, as a consequence of the investigation process, a letter of expectation.
  1. [99]
    The letter of expectation was not disciplinary or punitive in nature but offered as a constructive means to clarify expectations that the Council has for the applicant's performance of his duties. Whilst the applicant appears to be under the impression that the letter is disciplinary, it is not. The letter of expectation is an attempt by Council to bring to the applicant's attention concerns about his performance and its expectations of him in the performance of his duties.

Conclusion

  1. [100]
    For the reasons advanced above, I have formed the view that the investigation process was fair; the findings contained in the investigation report were reasonably open on the relevant facts and circumstances; and the response of the Council to the investigation report was adequate.

Order

  1. [101]
    I dismiss the application.

Footnotes

[1] Exhibit 5.

[2] Exhibit 4, 9.

[3]Exhibit 2.

[4] T1-82 Ll. 3-8.

[5]T1-69 Ll. 43-47 and T1-70 Ll. 1-3.

[6]T1-70 Ll. 19-21.

[7]T1-140 Ll. 103.

[8] [2003] HCA 6.

[9] [2004] FCAFC 16.

[10] [2013] HCA 18.

[11] T1-120 Ll. 46-47 and T1-121 Ll. 1-9.

Close

Editorial Notes

  • Published Case Name:

    William Huxley Lawler v Gold Coast City Council

  • Shortened Case Name:

    Lawler v Gold Coast City Council

  • MNC:

    [2016] QIRC 139

  • Court:

    QIRC

  • Judge(s):

    O'Connor DP

  • Date:

    12 Dec 2016

Appeal Status

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

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