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Royce v Queensland[2018] QIRC 143

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Royce v State of Queensland (Department of Justice and Attorney-General) [2018] QIRC 143

PARTIES: 

Royce, Stephen

(Applicant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NO:

TD/2016/98

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

28 November 2018

HEARING DATES:

25 January 2017

24 April 2017

25 May 2017

5, 6, 7, 8, 9, 13 and 14 June 2017

14 August 2017

MEMBER:

HEARD AT:

Bloomfield DP

Brisbane

ORDERS:

  1. The application is dismissed.
  1. The matter of costs is reserved.

CATCHWORDS:

INDUSTRIAL LAW – APPLICATION FOR REINSTATEMENT – whether dismissal harsh, unjust and unreasonable – whether dismissal for invalid reason – where Ethical Standards Unit investigated a number of allegations – where first show cause issued as to why disciplinary finding should not be made in relation to ten allegations – where applicant in response dismissed the majority of allegations as either frivolous or without foundation – where respondent found on the balance of probabilities each allegation was substantiated – where second show cause issued proposing disciplinary penalty of termination – where decision on penalty of termination of employment issued – witness evidence – witness credibility – where applicant determined to be an unreliable witness – where decision to terminate employment found to be justified – where termination not harsh, unjust or unreasonable – where termination not for an invalid reason – where application dismissed – where costs reserved.

LEGISLATION:

Industrial Relations Act 1999, s 73, s 74

Industrial Relations Act 2016, s 1023

Public Interest Disclosure Act 2010, s 73

Anti-Discrimination Act 1991, s 7, s 8, s 9, s 10, s 11, s 15

Public Service Act 2008, s 187, 189

Dispute Resolution Centres Act 1990, s 24, 27AA, 28, 30

APPEARANCES:

Mr S. Royce, the Applicant, representing himself.

Dr M. Spry, Counsel, instructed by Ms S Tucker and Ms P Tyquin of Crown Law, for the Respondent.

Reasons for Decision

 Introduction

  1. [1]
    By way of application lodged on 7 November 2016, Mr Stephen Royce seeks reinstatement to his former position with the State of Queensland (Department of Justice and Attorney-General) at the Respondent's Dispute Resolution Branch (DRB) office on the Gold Coast.  Mr Royce describes his former position as "Manager of the Gold Coast Justice Mediation Program" while the Respondent describes it as "Justice Mediation Officer (JMO) (A05.4)".  As will become clear later, this difference in view assumes greater importance than might otherwise be apparent.
  1. [2]
    In his application for reinstatement Mr Royce said that his dismissal was unfair within the meaning of s 73(1) of the Industrial Relations Act 1999 (the 1999 IR Act), in that:

 1. it was harsh, unjust and unreasonable, as:

  • the ESU Investigators (who investigated a number of allegations concerning Mr Royce) failed to interview his witnesses;
  • the investigators and decision maker (Ms Jennifer Lang, A/Deputy DirectorGeneral, Justice Services, Department of Justice and AttorneyGeneral), failed to allow him access to his records or database;
  • the decision maker failed to recognise her multiple conflicts of interest; and
  • the decision maker failed to take account of the evidence presented to her and dismissed it, favouring instead the untested evidence of her colleagues (part of the conflict of interest issue); and
  1.  it was for invalid reasons, within the meaning of s 73(2) of the 1999 IR Act, as follows:
  • filing a complaint, or taking part in proceedings, against an employer involving alleged violation of laws or recourse to competent administrative authorities (s 73(2)(e));
  • the making by anyone, or a belief that anyone has made or may make a public interest disclosure under the Public Interest Disclosure Act 2010 (s 73(2)(f)(i));
  • discrimination (s 73(2)(m)), of the type described at s 7(a),* (h), (m), (n)* and (p), s 9(a) and (b) and s 15(1)(a) and (b) of the Anti-Discrimination Act 1991. (*included by amendment on Day 1 of the hearing)

 [Relevantly, the sections of this Act referred to by Mr Royce concern:

  • 7(a) sex;
  • 7(h) impairment;
  • 7(m) gender identity;
  • 7(n) sexuality;
  •  7(p) association with, or relation to, a person identified on the basis of any of the above attributes;
  • 9(a) direct discrimination;
  • 9(b) indirect discrimination;
  • 15(1)(a) any variation in the terms of work; and
  • 15(1)(b) denying or limiting access to opportunities for promotion,

transfer, training or other benefit to a worker].

 Background

  1. [3]
    On 26 November 2014 the Respondent's Ethical Standards Unit (ESU) received information relating to Question on Notice 863 (QON) by Dr Alex Douglas, MP, Member for Gaven.  On 25 June 2015 the ESU also received information about a Right to Information application by Hannay Lawyers in respect to the same QON.  On both occasions the information was provided by Ms Lindsay Smith, Executive Manager, Dispute Resolution Branch, who was Mr Royce's line manager.  Ms Smith raised both matters with the ESU on the basis that the contents of the QON were of a similar nature to that which was the subject of Mr Royce's conduct in April and May 2014, for which he was reprimanded (see below).
  1. [4]
    On 27 July 2015 the ESU received further information (also from Ms Smith) that Mr Royce had allegedly involved himself in mediating a matter in which the agreed settlement sum of $350,000 had exceeded the pecuniary limit ($75,000) prescribed by DRB policy.
  1. [5]
    Whilst reviewing the material provided to it, the ESU examined Mr Royce's departmental emails and work computer storage.  During this process the ESU identified material which indicated that Mr Royce may have:
  • been in an intimate relationship with his work colleague, Ms Kylie Mills, Justice Mediation Intake Officer;
  • prepared questionable correspondence to Dr Alex Douglas (MP), Mr Cameron Dick (MP)* and Hannay Lawyers; and
  • stored excessive personal files on his departmental computer, including some that were inappropriate.

(* Note:  this matter was not pursued by the ESU after it was established that Ms Smith had spoken to Mr Royce about the matter at around the time it happened.)

  1. [6]
    Subsequently, Mr Royce was directed to participate in an interview with ESU Investigators in relation a number of allegations.  This took place on 19 November 2015 and the Investigation Report (the Report) was finalised by the ESU Investigators on 24 December 2015.
  1. [7]
    On 4 March 2016, after considering the contents of the Report, Ms Lang suspended Mr Royce from duty on full pay pursuant to s 189(1) of the Public Service Act 2008 (the PSA).

First Show Cause

  1. [8]
    One month later, on 4 April 2016, Ms Lang called on Mr Royce to show cause why a disciplinary finding should not be made against him, in accordance with s 187 of the PSA, in relation to the following allegations:
  1. (1)
    That on or about 30 October 2012, without authority, you provided Dr Alex Douglas, Member of Parliament, with information and commentary on government policy.

Particulars (summarised by me):

  • On 18 October 2012 you attended Magistrate Gardiner's swearing-in ceremony and spoke to another attendee, Dr Alex Douglas, Member for Gaven, about the Justice Mediation Program (JM Program).
  • On or about 30 October 2012 you provided a letter to Dr Douglas labelled "In strict confidence" which included your official signature block.
  • The letter appeared to have been written in your official capacity as a public officer, and
  • extolled the merits of the JM Program (and in particular the performance of the Gold Coast office) in order to promote the view that the Program ought to be given application beyond the then government priorities; and
  • criticised the Department's administration of the JM Program; and
  • was disrespectful to your managers and showed disregard for the departmental reporting structures.
  • For further particulars see the Investigation Report* pages 9-18, and Attachments 1-4 to the Report. (*The Report was provided to Mr Royce with the letter)

  (2) That on or about 19 November 2014, you inappropriately encouraged Dr Alex Douglas, Member of Parliament, to ask Question on Notice 863 on 25 November 2014.

Particulars (summarised by me):

  • On 19 November 2014 at 10.24 am you used your departmental computer to access Dr Douglas's electoral website.
  • On 25 November 2014 Dr Douglas asked Question on Notice 863 (QON 863) which was directed towards obtaining a list of internal reports on the JM Program and any actions arising.
  • On 3 December 2014 you received an email from a staff member from the office of Dr Douglas, MP which stated "As just discussed, here is a link to questions on notice …"
  • On 12 January 2015 the same staff member sent you the specific link for QON 863, which the Attorney-General had answered on 17 December 2014.
  • On 21 January 2015 you emailed a different staff member of the office of Dr Douglas MP requesting that a copy of the reports provided in response to QON 863 be made available to you, stating that it would be relevant to know who drafted the answer in reply to QON 863 as well as the name of the author of each briefing note the AttorneyGeneral referenced;
  • Your email indicates your involvement and encouragement of Dr Douglas to ask QON 863.
  • Later that day the same staff member advised you that Dr Douglas had agreed to provide the requested information.
  • On 6 February 2015 the staff member emailed you again, stating "it is difficult to obtain the information you have requested while the government is in caretaker mode and when Dr Douglas is no longer a Member of Parliament". It was suggested that you could make an RTI application for the documents as well as look at the Department's Annual Reports.
  • For further particulars see the Investigation Report, pages 18-22, and Attachments 4-7 to the Report.

  (3) That between 24 November 2014 and 7 February 2015, you inappropriately attempted to obtain departmental information through Dr Alex Douglas, Member of Parliament.

Particulars:

  • The particulars for this allegation are largely the same as those for Allegation 2. As such, I do not repeat them.
  • For further particulars see the Investigation Report, pages 22-26, and Attachments 4-7 to the Report.

  (4) That between 1 April 2014 and 17 January 2015, you stored excessive personal files on departmental information and communication technology systems and devices.

Particulars (summarised by me):

  •  The Department's Use of Information and Communication Technology Devices Policy (the ICT Policy) and Network Storage Fact Sheet (Fact Sheet) prohibits storage of non-work related personal electronic files.
  •  The Fact Sheet specifically states that personal digital image files are strictly forbidden from being downloaded, copied, stored or accessed on the Department's network, including the H:\Drive.
  •  On 21 August 2014, a Senior Systems Administrator sent you an email in which you were specifically warned about the size of your H:\Drive (at that time 3.5GB in size) and asked to immediately remove the data on the drive if it was not work related. On 5 December 2014 your H:\Drive was 2.98GB in size.
  •  Within the electronic desktop folder were three sub-folders, the largest of which (nearly 2.5GB), labelled "Photos Thai", had been downloaded on 12 September 2013.
  •  The sub-folder contained 331 photographs of your holiday in Thailand with Ms Kylie Mills and are not work related.
  •  The size of the sub-folder, which stores your personal files, is excessive.
  •  For further particulars see the Investigation Report, pages 29-32, and Attachments 4, 8, 9 and 10 of the Report.

  (5) That between 1 April 2014 and 17 January 2015, you made inappropriate use of departmental information and communication technology systems and devices by storing inappropriate material.

Particulars (summarised by me):

  • The ICT Policy provides examples of unauthorised or inappropriate use of Departmental owned ICT facilities or devices, which includes viewing, creating, downloading, storing or distributing materials in the workplace which are inappropriate, indecent, obscene or sexually explicit.
  • The "Photos Thai" sub-folder stored on your H:\Drive contains 331 photographs which are personal files and not work related.
  • Two of the photographs contained within the sub-folder depict you sitting in an indoor spa facility with a topless Ms Mills.
  • The photographs are of an inappropriate nature for storage on departmental resources due to Ms Mills partial nudity.
  • By storing the inappropriate photographs depicting a bare breasted Ms Mills on your H:\Drive you made inappropriate use of a departmental device.
  • For further particulars see the Investigation Report, pages 32-34 and Attachments 4, 8 and 12 of the Report.

  (6) That between 24 August 2013 and 28 October 2015, you failed to disclose a conflict of interest in relation to a personal relationship with colleague, Ms Kylie Mills.

Particulars (summarised by me):

  • Your role description as a JMO requires, inter alia, that you "provide leadership, training, mentoring and coaching to one Justice Mediation Intake Officer in relation to intake tasks including the exercise of judgement regarding the assessment of suitability of matters for mediation".
  • Ms Mills is employed as a Justice Mediation Intake Officer, at a lower classification level than you, at the DRB, Gold Coast. In addition to providing leadership, training, mentoring and coaching to Ms Mills, you also have supervisory responsibilities of her including:
  • supporting Ms Mills' leave requests; and
  • developing Ms Mills' Performance Effectiveness Plan (PEP) in conjunction with the JMP Manager, Troy Degenhardt.
  • In or about August 2013 you went to Thailand on holiday with Ms Mills and, since at least that time, you have and continue to be in a relationship with her.
  • While the Code of Conduct acknowledges that having a conflict of interest is not unusual, and is not a wrongdoing in itself, failure to disclose and manage the conflict appropriately is likely to be a wrongdoing.
  • The Department's Conflict of Interest Policy (Conflict Policy) provides "if the possibility could arise where someone could challenge your objectivity in decision-making because of your current/past/future relationships, you have at least a perceived conflict of interest which must be declared".
  • Since at least August 2013 you have failed to disclose a conflict of interest in relation to a personal relationship with your work colleague, and subordinate, Ms Mills.
  • For further particulars, see the Investigation Report, pages 34-39, and Attachments 4, 9, 12, 13, 14, 15, 16 and 17 to the Report.

  (8A) That on or about 8 April 2015, you inappropriately prepared correspondence addressed to Mr Cameron Browne, Solicitor.

Particulars (summarised by me):

  • On or about 8 April 2015 you prepared, without authority, a letter to Mr Browne which included information and commentary on legislative and departmental processes and government policy.
  • In the letter you stated that the views outlined were your own and "not necessarily" those of DRB or other agencies, and you did not include your departmental signature block.
  • Whilst the letter included the disclaimer (above) it was, on your own admission, written by you in your official capacity as a JMO to a person who knew you as an employee of the JM Program.
  • For further particulars refer to the Investigation Report pages 42-46, and Attachments 21, 22 and 23 to the Report.

  (9) That on 10 April 2015, you inappropriately emailed Hannay Lawyers offering commentary on government policy.

Particulars (summarised by me):

  • On 10 April 2015, you sent an email to Mr Chris Hannay, of Hannay Lawyers, attaching three documents:
    • a document prepared by you which contains information about the JM Program as well as information about your suggested reforms to that Program;
    • a copy of QON 863 and the Attorney-General's response; and
    • an overview of your thoughts on the three key pieces of legislation in the JM area as well as your thoughts on the Minister's answer to QON 863.
  • The email to Mr Hannay included your official signature and was sent in your official capacity as a JMO.
  • In or about February 2014 you had been instructed by Mr Degenhardt not to circulate the Current Information Sheet. He also advised you that fact sheets, once approved, should be printed on Departmental letterhead.
  • Your commentary in the email to Mr Hannay had not been approved or sanctioned.
  • For further particulars see the Investigation Report, pages 46-51, and attachments 4, 22, 23 and 24.

  (10) That on 11 December 2014, you, without authority, mediated a settlement above the limit prescribed by departmental policy.

Particulars (summarised by me):

  • The "Restorative Justice Conferencing Policy" and "Dispute Resolution Branch Manual of Policy and Practice" (September 2009) both provide that matters are only suitable for mediation if the combined value of compensation and restitution does not exceed an upper limit of $75,000.
  • On or about 11 December 2014 you signed the justice mediation agreement for file No 633546, as the mediator, which stated that the defendant was to pay $350,000 comprised of $56,000 in compensation (described as "opportunity costs") and $294,000 (described as a "return of transferred monies").
  • You recorded the sum of $56,000 in the DRB spreadsheet with respect to the mediation agreement for file No 633546. You did not record the amount of $294,000 in the spreadsheet.
  • The value of the settlement was well in excess of the limit of $75,000 prescribed by departmental policy.
  • For further particulars see the Investigation Report, pages 51-56, and Attachments 4, 26, 27 and 28.
  1. [9]
    After several requests for extensions to the original time frame, Mr Royce eventually replied to the show cause letter on 10 May 2016.  Without going to his response in any great               detail, Mr Royce dismissed the majority of allegations as either frivolous or without foundation on the basis that:
  • he was working in accordance with his role description (allegations 1, 2, 3, 8A and 9);
  • other staff had never been spoken to about private material stored on work computers, let alone threatened with a penalty (allegations 4, 5 and 6); and
  • the issue of what made up the limit of $75,000 was not settled when he undertook the mediation but, more relevantly, he had the discretion to go beyond "the limit" because it was only a guideline (allegation 10).

Second Show Cause

  1. [10]
    After considering Mr Royce's response, and making further enquiries in relation to some matters raised in it, Ms Lang caused a second show cause notice to be prepared and sent to him on 28 June 2016.  In this 32 page notice, Ms Lang informed Mr Royce that she had determined, on the balance of probabilities, that each of the allegations was established.  She also made it clear that she had reached her own conclusions regarding each allegation and, in doing so, had carefully considered all of the material before her, including his response dated 9 May 2016.
  1. [11]
    Ms Lang's correspondence is particularly comprehensive in that:
  • she summarises, in dot point format, the nature of Mr Royce's responses to each allegation raised with him in her 4 April 2016 show cause letter;
  • she responds to a number of individual complaints/allegations by Mr Royce about such matters as:  denial of procedural fairness;  being called upon to respond to individual allegations where the subject matter overlapped (e.g. allegations 1, 2, 3, 8 and 9);  and, the alleged use of "false" documents by DRB and ESU during the investigation and show cause process; and
  • she records her reasons, again in dot point form, for the finding/s she made in relation to each allegation.
  1. [12]
    In collated form, Ms Lang determined:
  • in respect of allegations 1, 2, 3 and 10:  pursuant to s 187(1)(b) of the PSA, Mr Royce was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PSA;
  • in respect of allegation 4:  pursuant to s 187(1)(f)(ii) of the PSA, Mr Royce had contravened, without reasonable excuse, a standard of conduct applying to him under the Code of Conduct for the State Public Service (the Code), specifically clause 3.1, and clauses 4.3 and 4.4 of the Department's ICT Policy;
  • in respect of allegation 5:  pursuant to s 187(1)(f)(ii) of the PSA, Mr Royce had contravened, without reasonable excuse, a standard of conduct applying to him under the Code, specifically clause 3.1, and clauses 4.4 and 8.4 of the Department's ICT Policy;
  • in respect of allegation 6:  pursuant to s 187(1)(f)(ii) of the PSA Mr Royce had contravened, without reasonable excuse, a standard of conduct applying to him under the Code, specifically clause 1.2; and
  • in respect of allegations 8A and 9:  pursuant to s 187(1)(f)(ii) of the PSA Mr Royce had contravened, without reasonable excuse, a standard of conduct applying to him under the Code, specifically clause 1.3.
  1. [13]
    On the basis of Ms Lang's findings in relation to the allegations, Mr Royce was invited to respond in writing, within 7 days, as to why the disciplinary penalty of termination of employment should not be imposed.

Mr Royce's response

  1. [14]
    On 23 August 2016, after Mr Royce successfully requested several extensions, Ms Lang received a response to her show cause notice of 28 June 2016 which had been settled by Mr Alastair McDougall of Counsel, briefed by Hannay Lawyers.
  1. [15]
    In the course of this response Mr McDougall said:
  • Mr Royce does not accept any of the guilty findings;
  • because you (Lang) "have not identified which allegation you are giving 'serious consideration to termination of your (Royce's) employment…' it can only be assumed you consider termination (sic) on each and every ground.";
  • "Mr Royce correctly identifies that the decision maker in this instance, you, is in his chain of command and therefore the investigation, and its outcome, is open to allegations of bias.";
  • Mr Royce does not accept you have appropriately addressed the issue of Public Interest Disclosure (PID) in relation to allegations 1, 2 and 3;
  • acting on the assumption of a guilty finding in relation to Allegations 1, 2 and 3 - which Mr Royce does not accept - the appropriate penalty is one of forfeiture or deferment of a remuneration increment or increase.  The offending amounts, at its highest, to a conversation with Dr Douglas and the provision of information which may amount to a PID.  There is no allegation that Mr Royce attempted to deceive, or lied to, the investigators.  Whatever conclusion you have arrived at as the underlying cause for the communication with Dr Douglas, there is no finding that Mr Royce undertook that communication for anything other than altruistic purposes;
  • acting on the assumption of a guilty finding in relation to Allegations 4 and 5 - which Mr Royce does not accept - the appropriate penalty is one of reprimand: "The two matters are extraordinarily trivial in nature.  The excessive storage of 3.5 gigabytes is so trivial it tends, unfortunately, to support the proposition the overall investigation is biased.";
  • acting on the assumption of a guilty finding in relation to Allegation 6 - which Mr Royce does not accept - the appropriate penalty is one of reprimand.  "The finding cites a perceived or potential conflict without identifying who personally perceived the conflict, or in what way there was a potential conflict.  Given you appear to accept Mr Royce was not in a position of reporting, chain of command, or direct supervision over Ms Mills, it is difficult to identify in what way there could be a perceived or potential conflict.  It is noted that your determination does not identify such a potential or perceived conflict.";
  • acting on the assumption of a guilty finding in relation to Allegations 8A and 9 - which Mr Royce does not accept - the appropriate penalty is reprimand.  "It is respectfully submitted that any communication with solicitors regularly using the Justice Mediation Program, about improvements to that program, can only, whether or not they are unguided, amount to an altruistic purpose.  It is difficult to see how Mr Royce's actions, at their highest, can have amounted to a contravention of the Code when on any view they sought comment on 'information sheets'.";
  • acting on the assumption of a guilty finding in relation to Allegation 10 - which Mr Royce does not accept - the appropriate penalty is one of reprimand.  " … even in the event the guilty finding is upheld, it cannot be said that any person was discriminated against, or disgruntled by the proceeding.  The complainant was compensated, and the offender undertook the usual restorative justice policies.  Again there is no allegation the employee benefitted in any way and it cannot be suggested that private or public confidence was lost in the process".
  • "Generally as to Penalty

   Your determination finds that the various breaches constitute misconduct.  It cannot be said however that those breaches, if found, could be categorised as 'serious misconduct' in that the employee benefited in any way, there was any detriment to any other employee or member of the public, or that the breaches brought the Department into disrepute.  Even the Question on Notice was answered without any allegation of impropriety about the basis for the question.

   The determination of 28 June 2016 should have assessed the nature of the discussions with Dr Douglas against PIDs as defined.

   The overall work record of Mr Royce at Southport was outstanding.

   In the main, the explanations given by Mr Royce, whether or not misfounded, are completely altruistic.  It cannot be said that Mr Royce personally benefited from any of the alleged misconduct or breaches of the Code.

  There can, and has been, no determination that any of the alleged offending has had any impact on the public or client confidence in the Department."

Termination letter

  1. [16]
    On 18 October 2016, Ms Lang responded to Mr Royce's response to her show cause notice dated 28 June 2016.  After canvassing his response to the individual allegations put to him on that date, she wrote:

 "I have carefully considered your submissions however in my view there is nothing in your response dated 22 August 2016 which would lead me to alter the findings made regarding the allegations against you and as set out in my letter to you dated 28 June 2016.  In particular:

  • I do not accept that the investigation or the disciplinary process is in any way tainted by bias as you allege.
  • I have found that your comments in your letter to Dr Douglas MP, 'Departmental apathy, degrees of nepotism inadvertently amounts to culpability in the number of people who are victims each year' were inappropriate, disrespectful and critical of the Department.  However, I do not accept that these comments, as they appear in your letter to Dr Douglas which provides information on the adult JM program, are properly characterised as a PID within the meaning of the Public Interest Disclosure Act 2010.  In my view, the suggestion that your 'discussions' with Dr Douglas should now be assessed as a PID is consistent with your continued unwillingness to accept responsibility for your inappropriate and disrespectful conduct.
  • Misconduct is defined in s 187(4)(a) of the Act to mean inappropriate or improper conduct in an official capacity.  I therefore do not accept your suggestion that findings of misconduct within the meaning of s 187(4)(a) of the Act are only open to a decision-maker in circumstances where the employee has benefited in some way or if some other person has suffered a detriment or if the conduct brings the Department into disrepute.
  • Whether or not the 'Question on Notice' was answered without any suggestion of impropriety about the basis for the question, is irrelevant to the allegations that have been found to be substantiated against you.
  • In relation to Allegations 1, 2 and 3, no adverse findings have been made against you in relation to you speaking to Dr Douglas MP in relation to the JM program at Magistrate Gardiner's swearing-in ceremony.
  • In relation to Allegation 6, as outlined in my letter dated 28 June 2016, both Ms Lindsay Smith, Executive Manager and Mr Troy Degenhardt, Policy Officer, DRB deny that you ever told them that you were in a relationship with Ms Mills.  Your suggestion that I have not properly addressed the evidence in this regard is disingenuous and reflects poorly on your credit.
  • In relation to Allegations 8A and 9, whatever your intentions may have been at the relevant time, this does not excuse or justify your conduct of providing unauthorised comments or documents containing commentary on government policy to external sources.  Your conduct amounts to a contravention of clause 1.3 of the Code of Conduct which relevantly provides, in part, that, 'Where providing factual information to the public on government policy is a part of our official duties and responsibilities, we will ensure that information is appropriately authorised, and that we properly represent government policy and administration in its intended manner and spirit'.  Whether or not the relevant 'information communication' was in the public domain, my findings concern you inappropriately preparing and corresponding with solicitors by offering commentary on government policy.

I have also had regard, in particular, to the following matters raised by you in relation to the appropriateness of the penalty.

  • You say I have not identified which allegations I am giving serious consideration to terminating your employment.  You therefore assume I consider termination on each and every allegation.  In this regard, I confirm that on the basis of my findings in relation to all of the allegations against you, I am currently giving serious consideration to termination of your employment.
  • You say your overall work record at Southport is outstanding.
  • In relation to Allegations 1, 2 and 3, acting on the assumption of the guilty finding (which you do not accept) you consider the appropriate penalty is one of forfeiture or deferment of a remuneration increment or increase.  You also refer to the decision of Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 018.  You say the applicant in that matter had previously been warned for writing to the Minister and had been warned (reprimanded) for same.
  • In relation to Allegations 4 and 5, acting on the assumption of the guilty finding (which you do not accept) you consider the appropriate penalty is a reprimand.  You say the two matters are extraordinarily trivial in nature.  You say it is not alleged that inappropriate material was sent or exposed to any person or stored in a way that exposure was likely.  You say the excessive storage allegation of 3.5 gigabytes is so trivial it tends to suggest that the overall investigation is biased.
  • In relation to Allegation 6 you say acting on the assumption of the guilty finding, which you do not accept, you consider the appropriate penalty is a reprimand.
  • In relation to Allegations 8A and 9, acting on the assumption of the guilty finding, which you do not accept, you consider the appropriate penalty is a reprimand.
  • In relation to Allegation 10, acting on the assumption of the guilty finding, which you do not accept, you consider the appropriate penalty is a reprimand on the basis that it was your understanding that there was a shift in practice.  Further, in the event the guilty finding is upheld, you say it cannot be said that any person was discriminated against or disgruntled by the proceedings as the complainant was compensated and the offender undertook the usual restorative justice policies.

Decision on penalty

I have considered very carefully the submissions you make with respect to the proposed penalty.  However, there is nothing in the submissions made by you that lead me to consider any alternative penalty (including the imposition of a reprimand and/or the forfeiture or deferment of a remuneration increment) is a reasonable and just outcome.

I have determined to impose the penalty of the termination of your employment for the following reasons:

  • I have found you guilty of misconduct in an official capacity in respect of Allegations 1, 2, 3 and 10.
  • In relation to Allegation 1, the comments in your letter to Dr Alex Douglas, MP that, 'Departmental apathy, degrees of nepotism inadvertently amounts to culpability in the number of people who are victims each year' were inappropriate, disrespectful and critical of the Department, management and reporting structures.  Your line managers were unaware of your correspondence to Dr Douglas and it was outside the scope of your role and authority to write to Dr Douglas in these terms.  You have attended Ethics Awareness training during your employment with the Department and should therefore be aware of your obligations under the Code of Conduct to ensure proper communication with Members of Parliament.
  • You have shown very little insight into the inappropriate nature of your conduct with respect to Allegation 1.  At interview, you denied that your comments were critical of the government 'because they're not aware of it'.  You also appear to deny that the comments in your letter were your own and suggest they were a 'reflection of the conversation [you] had at the time' with Dr Douglas.
  • With respect to Allegation 2, your answers provided at interview were vague and evasive in relation to how you came to know about the Question on Notice.  I am also concerned that you appear to believe it is appropriate for a person in your position to approach a Member of Parliament and encourage them to ask a Question on Notice in relation to a matter that relates to the person's official duties.
  • You have previously been counselled, in 2010, about unauthorised contact with the Attorney-General.  In particular, you were advised that your direct contact with the Attorney-General had not been appropriate and the appropriate lines of communication between public servants and Ministers was explained to you.  In that instance, you were told that you should have told your supervisor that the Attorney-General had requested information so that the relevant information could be provided through your supervisor to the Director-General.  Given you have previously been counselled in relation to appropriate contact with Ministers, in my view you should have reasonably been aware of your obligations to ensure appropriate communication with other Members of Parliament, including Dr Douglas MP.  In these circumstances your conduct in relation to Allegations 1, 2 and 3, is of significant concern to me.
  • I do not accept that Allegations 4 and 5 are 'extraordinarily trivial in nature'.  In circumstances where you were advised, by email dated 21 August 2014, that your H:\Drive was almost at full capacity and once the disk was exhausted all H:\Drive operations for Southport would stop, it should have been clear to you that your use of the Departmental ITC systems had the potential to interfere with the operations of the Southport office.  In my view, you have failed to demonstrate any genuine insight into your conduct in using the Department's ICT systems to store excessive personal files or to store inappropriate material.
  • In relation to Allegation 5, I have found that you inappropriately used departmental ICT systems by storing inappropriate material, in particular, photographs of you and Ms Mills in a spa where Ms Mills is topless with her breasts exposed.  However, I am particularly concerned that you have repeatedly disputed, both during your interview with the investigators and in your letter dated 4 April 2016 (sic), that the (topless) photographs of Ms Mills are in any way inappropriate material to be stored on departmental ICT systems.  I also note you have sought to justify your conduct on the basis that it was common practice to share holiday photographs in the office.  Your continued lack of insight or remorse in relation to the fact that the (topless) photographs of Ms Mills were of an inappropriate nature to be stored on departmental ICT systems and devices is of significant concern to me.
  • In relation to Allegation 6, I have found that you failed to disclose a conflict of interest in relation to your personal relationship with Ms Mills.  On the basis that you have some level of supervisory responsibility with respect to Ms Mills (i.e. in relation to endorsing Ms Mills' leave and performance effectiveness plan) I am concerned that you continue to refute that you were required to declare your relationship with Ms Mills as an actual, potential or perceived conflict of interest.
  • With respect to Allegations 8A and 9, I have found that you inappropriately prepared correspondence to solicitors which included unauthorised comments on the JM program.  I note that Ms Smith has previously provided you with advice in 2012, in the context of you presenting a JM-related paper in Canberra, on demarcating official information from your private views and that only official, approved information was to be distributed to stakeholders.  I am therefore very concerned that you have continued to prepare correspondence to stakeholders which was neither authorised nor approved.
  • In relation to Allegation 10, I have found that you, without authority, mediated a settlement above the limit prescribed by departmental policy.  Significantly, I note that you have previously been counselled by Ms Smith, in October 2013, regarding the monetary limit for restorative justice conferencing, during which you were informed the monetary limit was mandatory, not optional nor a guideline.  I am therefore very concerned that on 11 December 2014 you nonetheless mediated a settlement above the limit prescribed by departmental policy.  In my view, your conduct in this regard was deliberate and I consider the matters raised by you during your interview and in your response to my letter of 4 April 2016, including that you had a discretion to work outside the monetary limit, are disingenuous and reflect poorly on your credit.
  • You dispute the grounds of discipline identified by me in relation to each of the allegations against you.  You have also failed to admit that you engaged in any conduct which was inappropriate, even in the face of significant evidence.  There is nothing in your responses provided throughout this disciplinary process which indicate to me that you have demonstrated insight into your conduct or that you are remorseful in any way.  This causes me significant concern.
  • I have also had very careful regard to your formal disciplinary history and I note that disciplinary action has previously been taken against you under Chapter 6 of the Public Service Act 2008.  By letter dated 18 December 2014, Ms Julie Steel, Executive Director, Supreme, District and Land Courts' Service issued you with a reprimand in relation to your conduct on 3 and 4 April 2014 and 5 May 2014 which involved you meeting with the then Chief Magistrate, Judge Tim Carmody, at your initiative and directly emailing the then Chief Magistrate in a manner which was inappropriate.  I note Ms Steel's advice to you that, 'Whilst on this occasion I have determined to impose a penalty at the lowest end of the scale, it is important for you to be aware of the seriousness with which I view your conduct.  You are directed to ensure that your conduct complies at all times with the Code of Conduct for the Queensland Public Service and the department's Workplace Policy.  A copy of each of those publications is enclosed for you to ensure you are familiar with their requirements'.  I note Ms Steel's decision to reprimand you was upheld by the Appeals Officer who found that the decision was fair and reasonable in the circumstances.
  • However, I note that your conduct in relation to Allegations 1, 2 and 10 predates Ms Steel's decision to reprimand you, that Allegations 3, 4, 5 and 6 relate to your conduct over a period of time which both pre-dates and post-dates Ms Steel's decision and that your conduct in relation to Allegations 8A and 9 post-dates Ms Steel's decision.  I have therefore only given weight to your previous disciplinary history when considering your conduct which post-dates Ms Steel's decision.  In this regard I note that your conduct forming the basis of the reprimand is of a similar nature to Allegations 8A and 9.  On this basis, in light of your formal disciplinary history and the fact that Ms Smith has informally counselled or advised you in relation to your conduct on three separate occasions in 2010, 2012 and 2013, I cannot conclude that your conduct in relation to the allegations against you was out of character.  Further, I do not consider that your formal disciplinary history is consistent with your submission that your overall work record at Southport is 'outstanding'.
  • In light of the seriousness and breadth of the allegations which I have found to be substantiated, in particular my findings of misconduct in relation to Allegations 1, 2, 3 and 10, and given that you have previously been informally counselled/advised in relation to your conduct by your manager Ms Smith in 2010, 2012 and 2013 and that you were formally reprimanded on 18 December 2014, I do not consider that a forfeiture or deferment of a remuneration increment or increase is an appropriate penalty in this case.  I do not accept that the decision in Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 018 tends to suggest that a penalty, other than termination of your employment, is reasonable in all the circumstances, given your previous disciplinary history and that your conduct which formed the basis of the reprimand is of a similar nature to Allegation 8A and 9.
  • In my view your conduct, particularly in relation to allegations 1, 2, 3 and 10, does not withstand public scrutiny and reflects poorly on the public service.  As a result you have damaged the essential element of trust in the employment relationship to the extent that it cannot be repaired.  I do not consider the imposition of a penalty other than the termination of your employment adequately reflects the seriousness with which the department views your conduct, particularly given you have previously been informally counselled or advised by Ms Smith in relation to your conduct in 2010, 2012 and 2013 and that you were formally reprimanded on 18 December 2014.  In all the circumstances, I no longer have trust and confidence in your ability to make sound judgements in the workplace in the future.
  • I have also had very careful regard to your length of service with the department, 15 years.  However, I do not consider that this factor is sufficient to outweigh the seriousness of your actions on this occasion.
  • Accordingly, I have determined to impose the penalty of termination of your employment from the date of receipt of this letter.  You will be paid an amount in lieu of notice, together with any outstanding leave accruals, in accordance with your industrial entitlements.".

Was Mr Royce's termination harsh, unjust or unreasonable?

  1. [17]
    By virtue of the provisions of s 1023 of the Industrial Relations Act 2016, Mr Royce's argument that his dismissal was harsh, unjust or unreasonable is to be decided by reference to s 77 of the 1999 IR Act. Relevantly, that section provides:

77  Matters to be considered in deciding an application

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

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  2. (b)
    whether the dismissal related to –
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  2. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance -
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (ii)
    whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [18]
    Notwithstanding Mr Royce's criticism of his treatment and the processes leading to his termination I am fully satisfied, by reference to the material referred to in paragraphs [8] to [16], above, that:
  • Mr Royce was notified of the reasons for his dismissal (s 77(a)); and
  • his dismissal related to his conduct, capacity or performance (s 77(b)(ii)); and
  • he was given an opportunity, prior to his termination, to respond to the allegations about the conduct, capacity or performance (s 77(c)(ii)).
  1. [19]
    Having made those three findings, I turn now to s 77(d), "any other matters the commission considers relevant.".
  1. [20]
    In the normal course of events I would, when writing a decision such as this, record the competing evidence about the issues in contention before making findings of fact about such matters.  However, Mr Royce raised so many issues (many of them totally irrelevant or spurious) in support of his contention that his termination was both unfair and for invalid reasons, it is simply not practicable, nor appropriate, to chase every rabbit down every warren he took me to.  Instead, I propose to concentrate on those matters which have led me to conclude that Mr Royce's termination was not harsh, unjust or unreasonable.
  1. [21]
    In doing so, it is necessary for me to record that I found Mr Royce to be a very, very, unreliable witness who studiously avoided giving plain answers to plain questions whenever the thought a plain answer might damage his case.  Further, many of his responses were, in my considered view, simply untruthful.  (See, for example, his responses to Dr Spry's questions (at Transcript 2-82 to 2-86 and 3-16 to 3-18) about claiming sick leave between Friday 23 August and Friday 6 September 2013 (inclusive) to travel to Thailand with Ms Mills).  As such, wherever there is a conflict in his evidence compared to that of another witness, and there are too many to cite, I prefer the evidence of the other witness.
  1. [22]
    Relevantly, Mr Royce emphasised a number of times that he relied on the transcript of his interview with the ESU Investigators as "his evidence" in the sense that the responses he gave to the questions the Investigators asked him on 19 November 2015, as well as his responses to Ms Lang, should be treated as his evidence-in-chief in the proceedings before me.  In the first paragraph of his three paragraph affidavit of evidence, filed on 24 March 2017, Mr Royce said:
  1. My replies to the department/investigators/decisions maker/documents filed by me (the department/state of Qld) or filed on my behalf are the evidence on which I intend to rely.  Along with the affidavits of Dr Alexander Douglas and evidence from Ms Mills.

(See also:  reference to preliminary proceedings before me on 25 May 2017, recorded at Transcript 1-38, lines 11-16).

  1. [23]
    Mr Royce's propensity to avoid giving a clear answer to a question was even more apparent in his interview with the ESU Investigators than it was in the proceedings before me.  The following exchanges between the Investigators, (TB) and (MR), and Mr Royce (SR) highlights the point: 

883

TB

Just going back to this question on notice, are you aware what question was asked?

 

884

SR

I know, I know the question, because I got a copy of it, and I made it available to Chris Hannay and Cameron, Cameron Browne.  I have, I have a copy of it.

 

885

MR

How did you get a copy?

 

886

SR

The copy of that, I can't recall if I was looking for it or I've, I'm in government, I do a lot of search on the government web pages both at home and at work.

 

887

TB

Okay.  Did you contact Dr Douglas, or let's say before the question was asked, did you discuss him making, asking it with Dr Douglas?

 

888

SR

I had meetings in relation to stress-related work issues with a number of people.  I've taken some time off in relation to stress-related issues.  I don't have any other comment in relation to my conversations with my GP.

 

889

TB

So did you ask him to ask that question?

 

890

SR

I, I said I've got no, I've got no further comment to make in relation to what they suggested my treatment plan was or how I should address the stress that I …

 

891

TB

I don’t want to deal with anything medical, but did you ask Dr Douglas to ask

 

892

SR

If I'm seeing somebody in, my capacity as a patient, and he's my doctor, any, any conversations that we have I'm afraid I'm not going to disclose the details of those conversations.  So I don't know how that helps us.

 

893

MR

So just so we're clear, Stephen, the question is did you have discussions, conversations, call it what you like …

 

894

SR

Mmm.

 

895

MR

… with Dr Douglas in an official capacity, as your official capacity, with the view to having him ask a question on notice?

 

896

SR

In my official capacity, I, I really don't know, because I've had lots of conversations with him, so, look …

 

897

TB

Or in any capacity.  I mean …

 

898

SR

My conversations with him as a private person, you know, what he's doing as my GP, I can't, I'm not going to disclose that.

 

921

TB

Did you and he have a conversation about obtaining documents through that question?

 

922

SR

Without, without repeating myself, I've had a number of conversations with him.  In which capacity and under, unless you've got something you'd like to put to me, I don't recall, so if I do recall, I'm happy to do it.  I've had conversations with him.  Obviously when I've seen that I've had conversations with him, too.  Think it's a great thing.  Think it's awesome.

 

923

MR

Stephen, do you believe it's appropriate for a person in your position, in your official capacity, to approach a member of Parliament and basically encourage them to ask a question on notice in relation to a matter that relates to their official duties?

 

924

SR

If, if, if I could have a wish list and I could send somebody to get some correspondence which helps identify some criminal action, I think that would be a great step to take.  I wish I'd thought of it earlier, so …

 

  1. [24]
    After observing and listening to Mr Royce over the eight days of this trial, I have come to the very firm conclusion that he strongly held the view, as noted in paragraph [1] of this decision, that he really was the Manager of the Gold Coast Justice Mediation Program (Program) and, in that role, he had absolute discretion as to how he might choose to run the Program at that location.
  1. [25]
    In this regard, it is also readily apparent that he did not believe, or accept, that all of the policies of the respondent about how the Program should be run were binding policies.  Instead, he treated a number of them as if they were mere "guidelines" that he was able to modify if he thought the circumstances required.  More relevantly, if he thought a particular policy would otherwise restrict his ability to undertake his duties in the way he wanted to perform them, he simply chose to interpret and/or apply that policy in a way which suited him, notwithstanding that either, or both, of Ms Smith or Mr Degenhardt, his line managers, might have previously instructed him otherwise.  In simple language, Mr Royce had essentially "gone rogue".  He was making up his own rules based upon his own interpretation of the respondent's policies and guidelines (see more below) as well as his personal views about how the Program should be run as the "Manager" of the Program on the Gold Coast.
  1. [26]
    In fact, Mr Royce's whole approach to his role went well beyond not following directions.  His perception of his status led him believe that he had almost complete discretion to determine how he undertook his role and which Justice Mediation cases he could take on.  His response to the First Show Cause letter, summarised at paragraph [9] above, exemplifies this point.
  1. [27]
    A clearer example, though, appears at Transcript 1-61, when Mr Royce was giving his evidence-in-chief, where he said:

So in my location, I am the head person, the same as other people in other branches throughout Queensland.  I draw your attention to that simply because there's some delegations of power under the Dispute Resolution Centres Act, and those delegations of power are - are afforded to me, being the head person at that particular location.  At no time have I had to seek permission to do or accept a file that I present.  Under the Dispute Resolution Act, the director - no - and this is under section 28 of the Dispute Resolution Centres Act of 1990, section 28.5.  I have a copy for the parties, and also one for the Commission, if that assists.

 No dispute may be accepted for mediation under this Act unless the director consents.

Now, there is - in the years that I have been there, I have never had to have that consent.  It's been referred to me.  It's been - it's been allocated to me, that responsibility to do that particular assessment.  There - there - and that's -and that's the same - I'm the head employee in that particular location, and I ha - am authorised - I'm delegated by previous history and by this legislation to then accept that on the basis of the director.  So that's a delegated authority that I have to accept referrals under that delegation.  So my understanding of the way I've conducted that particular centre and my functions is that I've worked within the guidelines of the - both policies.  I've worked pursuant to my delegated authorities as a director of that mediation centre …

  1. [28]
    However, in common with many views he advanced, Mr Royce was incorrect.  The Dispute Resolution Centres Act 1990 (the DRC Act) contains the following definitions and provisions:

 director means a person holding office or duly acting as director of a dispute resolution centre.

dispute resolution centre means a dispute resolution centre established under this Act.

 mediator, in relation to a dispute resolution centre, means -

  1. (a)
    the director of the centre; or
  2. (b)
    a person appointed under s 27AB as a mediator for the centre.

...

24. Place of operation of dispute resolution centres *

  1. (1)
    The principal office of a dispute resolution centre is at the premises specified in relation to the centre in the gazette notice under section 23.
  2. (2)
    The activities of a dispute resolution centre may be conducted at the principal office or at such other places as the director of the centre may approve from time to time.

 [* Note: the principal office of DRB was in Brisbane but offices were also located (at least) in Townsville and on the Gold Coast].

...

27AA Mediators

   The chief executive may appoint a person, other than a director, as a mediator for a dispute resolution centre for the term decided by the chief executive.

 ...

 28 Provision of mediation services

  1. (1)
    The director of a dispute resolution centre is responsible for the provision of mediation services, including mediation services necessary to give effect to a referring order, and for the operation and management of the centre.

  ...

 30 Disputes

  (1) The director of a dispute resolution centre may decide, for the centre, that specified classes of disputes are not to be the subject of mediation sessions, or that specified classes of disputes may be the subject of mediation sessions, but nothing in this subsection limits any other provisions of this Act.

  1. [29]
    When cross-examined about his assertion that he was the "director" as prescribed at s 27AA (and referenced elsewhere in the DRC Act), Mr Royce continued to maintain that he was the director because his duties, as recorded in his original 2007 Role Description (Exhibit 9), reflected those pertaining to the position of director.  Although he did not take me to the document to support his argument, it appears that he was referring to the following aspects of the role description, most especially the first of the key responsibilities:

 Role Description

 Position Title:  Justice Mediation Officer

 Branch/Division:  Dispute Resolution Branch - Justice Administration

 Location:   Brisbane (working from Southport Magistrates Court)

 

 Your key responsibilities

  • Manage the delivery of Justice Mediation (criminal mediation) services in the region, including the conducting of justice mediations, pursuant to the Dispute Resolution Centres Act 1990.

 

  • Provide advice to the Coordinator of the Justice Mediation program and contribute to the policies, procedures and business planning activities of the Dispute Resolution Branch.
  • Liaise, negotiate, consult, and build relationships with relevant government and nongovernment agencies with respect to issues relating to the Justice Mediation Program.
  • Prepare reports, correspondence and other documents including those of a sensitive and privileged nature pertaining to the Justice Mediation Program as required.

  1. [30]
    Under further crossexamination Mr Royce gradually, and reluctantly, retreated from his claim that he was the "director" of the Southport Office, as follows (Transcript 2-22 to 2-24):

Dr Spry - Now, nowhere there does it (the Role Description) say that you are to, for example, execute all the legal and statutory duties and functions of the director in accordance with the provisions of the Dispute Resolution Centre 1990 - Centres Act …

Your key - your key responsibilities:  manage and deliver of a justice mediation, criminal mediation service in the region, including conducting of justice mediations pursuant to the Dispute Resolution Centres Act 1990.

And so that's what you rely on to say that you - you're the delegate, is it? --- It means I had to read the Dispute Resolution Act 1990.

Yes? - And it says   

You had to read it, but it doesn't make you the delegate, does it? --- It does.  The Act is quite clear that no mediation can be accepted without the approval of the direc - of the - no mediations ever went to her.  I was delegated that responsibility to accept those referrals.

You know ---? --- It's just the practice was I had that delegation to accept them.  No mediations referrals were ever passed on to anybody.  I had that delegation to accept it on behalf and under what is needed in the Act.  I had that delegation authority.

You'll see that you are - your location is Brisbane, working from the Southport Magistrates Court?- - - I worked from the Southport Magistrates Court.

Yes, you worked from the Southport Magistrates Court, but that's not – that's not a separate media - it's - that's not a separate dispute resolution centre? - It is.

It's part of the Brisbane one, but you work out of the Southport Magistrates Court, correct? --- We - we were setting up our office.  At the time, there wasn't an office.  I suppose, when I'm reporting back for the job application, yeah, there is nobody in the Southport office   

Well, this   ?    because I was establishing the Southport office.

This is what you rely on.  This is what you say your duty statement is? --- I am explaining why it's addressed to Brisbane.  I can't address my response to the application when the office hasn't been set up.

And, you see - one, two, three, four - fifth dot point down, you're to provide advice to the coordinator of the justice mediation program? --- Uh-huh.

That's because you're not the delegate.  You're the one who's providing advice and assistance.  You're not the delegate? --- For any mediation to be accept   

Mr Royce, you are not the delegate, correct? --- I was the coordinator, sorry.

You were the coordinator? --- I was the coordinator for a   

Yes.  You were - but you were not the director or the delegate under the Act, correct? --- Well, if I'm the coordinator, I don't understand that, so   

Well, you   ? --- I was the highest - the highest - I was the highest position person within that office.

There were two of you, you and Ms Mills, correct? --- Yes.  So   

And - but that doesn't make you the director under the Act, does it? --- Well, it does, because the highest person is accepting the referrals, and each referral has to be accepted before it can be considered.  So it's like the other delegations for mediators which the Act goes on.  We have - we have responsibilities which are automatically delegated, one that we've been - we're sworn in on a panel, and we - we have the commitment to practice and all those other various things we need to do.  And because of that, we then have delegation duties under this.  Because I can assure you that Lindsey Smith doesn't have time to look at, you know, the – the three or four thousand referrals that come in a year, and give her individual approval.  She delegates that to the people in charge of the various offices around the State.  I am the senior person in that office, and that delegation fell to me.  It's just - it's an axiomatic consideration of the legislation of my position.

It doesn't make you the director, does it? --- It doesn't make me - it doesn't - I'm not the director.  I have delegations from the director because the Act says that we can't accept any - any mediations without being approved by the director.  So that means for the   

Yes, and you're not the director.  You've just said that?  Yeah, I've been --- I've been delegated that responsibility.  I accept I'm not the director.  That means for each year that we've done these, you know, hundreds and hundreds of mediations, that means they're all void.  Is that what we're saying, that I didn't have authority to accept them, never alone mediate them, never alone have them settled and never alone have them discontinued from the court process.  That's absurd.

  1. [31]
    The true position was that Mr Royce had delegations to accept referrals provided they fell within the scope and parameters set by the director.  He was not free to make up his own rules.  However, even after making the concession that he was not the director (above), Mr Royce continued to assert throughout the hearing that he had the same powers as the director because of his role description (Exhibit 9) and the provisions in the DRC Act (as he interpreted them).
  1. [32]
    Mr Royce's views about his status went well beyond his belief that he was the director of the Justice Mediation Centre on the Gold Coast.  He also believed he had the right to openly challenge and question the practices and policies framed by his supervisors with external persons.  The first (known) occasion he did this was in April and May 2014 when he met with, then wrote to, the then Chief Magistrate, Judge Carmody.  In the course of his emails to the Chief Magistrate, Mr Royce advocated for the establishment of a project, of which he would be part, to review certain aspects of the Justice Mediation Program.  In the course of two emails sent in that period he wrote, inter alia:
  • The information given to the government by our department is simply misleading, this could explain the resistance to undertake the very clear next steps in progressing the program, establishing and implementing best practice, promoting the data on re-offending, client feed back, community benefits.

  • I am seeking to address:
  1.  The deliberate and yearly incorrect reporting of information by my business unit with respect to various aspects of the adult justice mediation program;
  2.  Years of inaction on confirming and implementing best practice. The courts independent review showed the GC JM program was delivering substantially lower reoffending rates than the rest of the state, I furnished reasons for this. I further undertook an in-depth analysis (which was opposed by my EM) to obtain data that supported each of the hypothesis I raised. The data clearly supported by (sic) hypothesis; I along with Kylie Mills presented our findings at the Participatory Justice and Victims Conference in Canberra 2012.

This inaction in recognition and or the implementation of best practice around the state is directly attributing to further victims each year (a disgrace) and;

  •  Many additional costs to the Government
  • Front line staff are not encouraged to use best practice (GC staff) and the rest of the state are basically unaware of the findings
  • Government ministers are making determinations based on flawed or partial information.

I was hoping that a high level review of the program would ensue, best practice be confirmed and established around the state and that I was a part of this process.

  1. [33]
    After becoming aware of this correspondence, the respondent initiated a "show cause" process on 19 August 2014 which culminated in Mr Royce being issued a formal reprimand, under the PSA, by Ms Julie Steel (mentioned above) on 18 December 2014.  When crossexamined about this reprimand and whether he accepted that he had done the wrong thing*, Mr Royce claimed (at Transcript 2-25 and 2-26) that he took the matter up with Judge Carmody, after Ms Smith did nothing to address his concerns, because he had identified some practices which he believed, and still believed, were in breach of the Criminal Code.  He said he raised them at that time, and with the investigators in November 2015 as well, because he believed he was being complicit "in yearly breaches of the Justices Act" and had an obligation to raise his concerns.  However, he did not explain what these alleged breaches were.  [*Note:  At this point Mr Royce shrugged his shoulders and said " … I was found to have not followed the lines of reporting …"]
  1. [34]
    Although he was subject to a show cause process at that same time in relation to his (alleged) inappropriate contact with Judge Carmody, I am satisfied that Mr Royce, nonetheless, contacted Dr Alex Douglas, Member for Gaven, in around November 2014 and encouraged him, or at the very least assisted him, to ask questions of the then AttorneyGeneral about the Justice Mediation Program, and which became QON 863.
  1. [35]
    I have reached this conclusion having regard to the following:
  • the matters raised in the question were remarkably similar to the matters Mr Royce had taken up with Judge Carmody just six months before;
  • Mr Royce admitted to having discussed topics of similar ilk with Dr Douglas (although allegedly at the latter's instigation);
  • Mr Royce's responses to questions asked of him by the investigators about his contact with Dr Douglas and his studious avoidance of providing a direct answer to any of the questions (see interview transcript 832-973);
  • Mr Royce's responses to questions asked of him by Dr Spry about the same topic (commencing at Transcript 3-24 and concluding at 3-82); and, most relevantly,
  • Mr Royce's answer to a particular question asked of him by the investigators about whether he assisted or guided Dr Douglas in framing the QON, where he said:

920

SR

The, the list of documents I suppose is something that he's asked for. I would have been asked to tell him some of those documents because I'm the author, I know some of them personally anyway. I could have, I could have, the report on re-offending variances by me, I could have been of some assistance on that. I could have been some assistance in relation to the, the 2011 one, the K Gaffney (?) one, which was the review that I mentioned, conducted by the courts which I was then told to action and follow up on.

  1. [36]
    For the second and third reasons recorded immediately above, as well as the content of the responses he gave at interview transcript 443-471 and 543-602, I have also concluded that Mr Royce, without authority, provided Dr Douglas (in or about October 2013) with information and commentary about government policy.  In forming that view, I categorically reject Mr Royce's claims (at interview transcript 584 and 646 and, again, under crossexamination) that his reference in the October 2013 letter to "departmental apathy, degrees of nepotism inadvertently amounts to culpability in the number of people who are victims each year" was a reflection of the words used by Dr Douglas during a discussion they had two years previously.  Such sentence reflects Mr Royce's views, as does the sentence which immediately follows:

 "I continue to advocate the benefits of the program to victims, defendants, their respective families and the wider community, State and Federal governments.".

  1. [37]
    I also do not accept Mr Royce's submissions to the effect that Dr Douglas's evidence confirmed that the words "departmental apathy" and the like, was a reflection of his views as expressed to Mr Royce.  Apart from providing a large number of responses to questions which had not been asked of him, Dr Douglas seemed to want to advance supportive statements about Mr Royce on the basis they had known each other for many, many years.  On top of that, he gave his evidence over the telephone while trying to perform duties as a locum in the Emergency Department at Gatton Hospital.  All things considered, I did not view him as a particularly reliable witness - especially given that the relevant correspondence was sent in or around October 2013, his evidence was being given over 3.5 years later and he had spoken to Mr Royce about the whole matter again when preparing his affidavit.
  1. [38]
    It is also clear to me, despite his denials, that Mr Royce also tried to obtain additional detail and data concerning the Attorney-General's response to QON 863 through the electoral office staff of Dr Douglas on 21 January 2015 by requesting information he would not normally have access to, and did not need to have for the purpose of carrying out his Justice Mediation Officer role.  Based on his responses to the investigators and to Dr Spry's questions, it appears to me that he was attempting to obtain information through Dr Douglas to advance his views about the inadequacies in the way DRB wanted the Justice Mediation Program to be run compared to the way he thought it should be run.
  1. [39]
    Importantly, Mr Royce's approach to Dr Douglas's electoral staff occurred just over one month after he had been issued with a formal reprimand by Ms Steel for his inappropriate contact with Judge Carmody in April and May 2014.  The fact that he made this contact so soon after receiving the reprimand highlights his total refusal to accept directions from his superiors about the parameters of his role as a Justice Mediation Officer.
  1. [40]
    Similarly, Mr Royce's correspondence to Mr Browne on 8 April 2015 (allegation 8A) and Hannay Lawyers on 10 April 2015 (allegation 9) reflect, firstly, his total disregard of instructions issued to him by his line managers, most relevantly Mr Degenhardt, and, secondly, his (false) belief that he was free to run the Program on the Gold Coast as he saw fit because of the content of the role description of the position he applied for, and was appointed to, in 2007.  Although Mr Royce told Dr Spry (at Transcript 4-5) that Ms Smith told him to put a disclaimer on any correspondence he wrote if he summarised legislation and the like, I totally reject that proposition.  In fact, he told the investigators [at 1882 - see below] he included the disclaimer because " … I don't want to get in trouble about things.".  I also reject Mr Royce's claim that he had freedom to provide comment about the content of legislation or government policy provided he included a disclaimer.
  1. [41]
    Mr Royce did not believe he needed to have anyone's approval to develop fact sheets about the Program or to correspond with persons when he provided his interpretation of legislation, or DRB policies regulating which matters were suitable for mediation under the Program.  As he told the investigators in response to a question about the correspondence he sent to Mr Browne:

1871

TB

So it's an official and sanctioned correspondence;  is that you …

 

1872

SR

Well, it's not sanctioned

 

1873

TB

… position?

 

1874

SR

because I don't need to, I'm asked a question, I respond, and I'm asked a question because generally I understand the legislation that we work under, and somebody will ask a question and it's usually the same one that I've either got advice on and I know the answer to, and so I can then pass it on.

 

1875

TB

So you wrote this letter in response to a question from Cameron Browne, solicitor?

 

1876

SR

In relation to ongoing questions from various solicitors around the coast, compiled those, the general thrust of questions through solicitors at that period of time are addressed in that letter.  They're all asking the same things, how do we get …

 

1877

TB

Yeah.

 

1878

SR

… these things through that, what's the, because they're asked, the magistrate will say where's my authority to do what you're asking, so they ask me.  I don't know.  So then I make some questions and inquiries, look at the legislation, look what we work under, and then I say, and as I'm clearly pointing out in that, the following are my thoughts, and not those necessarily of the DRB or the, or the, so I make it clear that, you know, these are my thoughts, you've asked me a question, this is my understanding of what is applicable to the question that you've asked me.

 

1879

TB

Are you writing as Stephen Royce, citizen, or Stephen Royce, justice mediation …?

 

1880

SR

I'm writing in my capacity as a justice mediation officer.  I don't correspond to solicitors, Legal Aid and things at home or from my personal email.  If they send me a question, I answer the question.

 

1881

TB

The query arises then that why have this disclaimer, the following are my thoughts?

 

1882

SR

Because I know, I don't want to get in trouble about things.  I'm not going to present that this is the department's view of the meaning of life.  They've asked me what I think is relevant to the question and I respond this is my understanding of the answers to the questions that you've posted, or please look at that piece of legislation, that might cover it for you, I've heard from this barrister who's done these submissions that that got him across the line.  So I am trying to facilitate everybody's needs in answering the questions that they pose as a general body of solicitors.  (my emphasis)

 

  1. [42]
    In summary, Mr Royce's correspondence to both Mr Browne and Hannay Lawyers was not only inappropriate, in terms of its content, it was also unauthorised and issued contrary to instructions given to him by his line managers.  His correspondence reflected his own interpretation of the relevant legislation and the types of matters which were appropriate to be dealt with through the program, notwithstanding DRB's views about those same matters.  However, by including his signature block on the correspondence to Hannay Lawyers any reader of his correspondence would have been entitled to treat it as the official view of DRB towards a particular matter or issue, notwithstanding the disclaimer.  Ms Lang was entitled to be very concerned about Mr Royce's actions and attitude toward issuing such correspondence, as revealed in the ESU interview transcript, when she was considering her disciplinary options.
  1. [43]
    It is apparent that Mr Royce's involvement in mediating a $350,000 settlement, well in excess of the DRB limit of $75,000, was a significant factor in Mr Lang's decision to terminate his employment.  In the course of her Affidavit (Exhibit 61), Ms Lang said:

 81. In relation to Mr Royce's conduct in facilitating a justice mediation settlement in excess of the upper financial limit, it is particularly concerning to me that Mr Royce continues to deny that this conduct was inappropriate and in breach of the relevant policy.

 82. The intention of the Justice Mediation Program is to represent the community interests in facilitating the resolution of minor criminal matters. To ensure that the public's interests are maintained, there are several specific criteria in place. For instance, matters that are accepted by the Justice Mediation Program generally involve minor criminal offences, for which the defendant is a first-time offender. The value of the harm or damage caused by the defendant's offence is generally quite low and, in accordance with the DRB's policy, must be no greater than $75,000.

 83. Whilst there are exceptions to the criteria for justice mediation, given the significant public interest considerations implicit in the Justice Mediation Program, it is important that these are considered carefully and approval is given by the manager to ensure a consistent approach.

 84. I do not consider that the public's interests would be served if defendants charged with serious criminal offences were able to pay significant sums of money to avoid a criminal conviction and/or other criminal penalties, including imprisonment.

 85. Throughout the discipline process, Mr Royce refused to accept that his conduct was inappropriate or that it was in breach of the relevant policies. Even in the material filed by Mr Royce since his dismissal, he still does not appear to understand or appreciate that his conduct was inappropriate.

  1. [44]
    In terms of DRB's policies and procedures, Mr Royce consistently referred to the respondent's Manual of Policies and Procedures - September 2009 (Exhibit 3) and an extract (pages 73-87) from a revised Manual of Policy and Practice - October 2014 which dealt with Restorative Justice Conferencing (Exhibit 4).  In terms of Exhibit 3, he complained about errors and deficiencies in the document which, he said, did not provide clear guidance about any financial limit for matters which might be referred to the Gold Coast Office for mediation which meant that it was up to him, as the Manager of that office, to determine which referrals could be accepted for mediation.
  1. [45]
    The extract from the later (October 2014) Manual (Exhibit 4), which concerns Restorative Justice Conferencing, contains the following:
  1.  Purpose

To guide the management of Restorative Justice Conferencing as provided by the Dispute Resolution Branch.

9. Eligibility and Suitability Assessment Criteria

 9.1 Eligibility Criteria

 The assessment of eligibility is based on the following criteria:

  1. that a person has been charged, or there is sufficient evidence to charge the offender at law
  2. that both the victim and offender express a willingness to participate in a restorative justice process

9.2 Suitability Criteria

The assessment of suitability is based on the combination of the eligibility criteria and on the points following:

a. that both the victim and offender continue to express a willingness to participate in a restorative justice process

b the victim and offender agree on the basic circumstances of a matter as the basis for their participation in the Restorative Justice process

c. there are no circumstances of aggravation that might increase the severity of the matter

d. for child victims, in addition to the child's willingness to participate:

 1. that both parents/legal guardians of a child victim agree together on the matter being managed through Restorative Justice

 2. where the child victim is supported by someone other than an offender parent, or the offender is supported by someone other than a victim parent

e. the offender accepts responsibility for their offending behaviour and is willing to repair the harm

f. the compensation requested by the victim is reasonable and in accordance with Schedule 2, section 2 of the Victims of Crime Assistance Act 2009

g. the restitution requested by the victim is reasonable and can be substantiated with appropriate documentary evidence

h. the restorative outcomes agreed to are reasonably able to be performed by the offender within 6 months

i. the combined value of compensation and restitution does not exceed the upper limit of $75,000.

9.3 Criteria Exceptions

Exceptions to the assessment criteria of eligible or suitable matters may be made if both the referring entity and the Restorative Justice Practitioner consider:

  1. the parties are in a relationship (familial, social or commercial/financial) and wish to preserve the relationship; and/or
  2. if, after consideration of the factual basis of the offence, the referring entity considers that restorative justice could provide an appropriate alternative outcome to a criminal prosecution.
  1. [46]
    Relevantly, Mr Royce vehemently argued that the provisions as recorded above demonstrated:
  • that the contents of Exhibit 4 were only a guide, in that this is what clause 1 explicitly stated; and
  • the $75,000 limit was also only a guide because it was subject to variation if the exceptions recorded in clause 9.3 were enlivened.
  1. [47]
    Consequently, he argued, the settlement of $350,000 he mediated was not in breach of DRB policy because:
  • the referral entity (a prosecutor from the Police Prosecutions Branch at Southport) thought the matter was appropriate for mediation;
  • the parties involved were in a commercial/financial relationship and wished to preserve that relationship; and
  • as the Restorative Justice Practitioner involved, he was satisfied that the matter was appropriate for mediation having regard to the two points set out immediately above.
  1. [48]
    By contrast, both Mr Degenhardt and Ms Smith gave evidence that Mr Royce had been counselled about the upper financial limit for Restorative Justice Conferencing matters during the course of a meeting they all attended in October 2013.  The purpose of that meeting was to discuss Mr Royce's mediation of a matter which had resulted in a settlement of $510,000 when the prescribed upper limit, at that time, was $50,000.  Their evidence was that Mr Royce attempted to defend his involvement in the mediation on the basis that the upper limit was only a guide and they reiterated to him that it was not a guide and that any matters where the potential financial limit may be more than the prescribed pecuniary limit should not be accepted for justice mediation unless one of them agreed.  I unreservedly accept their evidence.
  1. [49]
    By way of email to all DRB staff on 25 March 2014, Mr Degenhardt circulated a draft Restorative Justice Conferencing Policy for feedback.  This email foreshadowed an increase in the upper financial limit for compensation and restitution of $75,000.  The new policy was formally released by Mr Degenhardt in an email to staff on 29 October 2014.  The relevant provisions concerning matters suitable for Justice Mediation Conferencing, as well as the upper limit, are recorded in paragraph [45] of this decision, above.
  1. [50]
    Although Mr Royce strongly asserted that he did not breach DRB policy by mediating the $350,000 settlement on 11 December 2014, because he was free to involve himself in the matter as it was an exception in accordance with clause 9.3 of the policy, I totally reject this agreement.
  1. [51]
    On my consideration of the evidence, Mr Royce knew from his counselling in October 2013 that DRB had an upper limit, which had increased from $50,000 to $75,000 some six weeks previously, but chose, nonetheless, to involve himself in the matter anyway.  Later, after the matter was settled, he deliberately tried to hide the amount of the settlement by recording only $56,000 of the total settlement in DRB's database in which all settlements were recorded.  In my view, Mr Royce would not have entered only $56,000 as the outcome if he truly did believe he had the authority to involve himself in a settlement over the upper limit of $75,000.
  1. [52]
    I do not accept Mr Royce's argument that he properly recorded the settlement details in DRB's database because $294,000 of the settlement involved return of money obtained via fraud (recorded in the settlement documentation as "return of transferred monies") which was not "restitution" as defined at pages 249 and 250 of the Manual of Policies and Procedures - September 2009 (Exhibit 3).  In this respect, he said the manual clearly specified that restitution involved a monetary payment by a defendant to a victim to cover the cost of "making good" something which had been broken or damaged during an unlawful event, e.g.:  the cost of replacing a broken lock or window;  the cost of repairing a vehicle damaged whilst stolen;  the cost of replacing spectacles broken during an assault.  However, Mr Degenhardt's evidence (which I accept) was that the Gold Coast Office had dealt with eleven other fraud matters over the previous two years and the return of fraudulently obtained monies had been recorded as "restitution" in each case.
  1. [53]
    Notwithstanding Ms Smith's equivocation in answering Mr Royce's question to her about whether the return of a stolen vehicle involved "restitution" and whether the value of the vehicle needed to be recorded in the database - a point on which Mr Royce sought to rely in support of his argument - there is no doubt in my mind (nor in Mr Degenhardt's) that the return of monies obtained by fraud constitutes restitution.  This is simple common sense, despite the definition in the Manual.  The amount of $294,000 should have been entered in the database as restitution, as had happened in the eleven other cases involving fraud.
  1. [54]
    Mr Royce's dishonesty in deliberately omitting the $294,000 from DRB's database pales in comparison to his dishonesty in connection with his failure to disclose his conflict of interest arising from his sexual relationship with Ms Mills.
  1. [55]
    When first questioned in early 2013 about whether they were in a relationship - as a result of an email complaint to Ms Smith and the then Attorney-General by Ms Mills' husband - Mr Royce denied it, as did Ms Mills.  Given the lack of evidence, both the ESU and Ms Smith took them at their word.  The existence of a relationship did not come to light until the ESU began to investigate Ms Smith's third referral - the settlement of the matter involving the $350,000 payment - at which time the photographs of their Thai holiday together were found on Mr Royce's hard disc.
  1. [56]
    This meant that the respondent was not aware for almost three years of the existence of the relationship between the pair in circumstances where one was the de-facto or actual supervisor of the other in a two-person office.  Relevantly, for most of the period 20102015 Mr Royce was responsible for Ms Mills' flex time and allocation of tasks and, until 2015, her performance expectation plan (PEP).  During 2015, Mr Degenhardt changed the reporting structure for staff employed in the various Justice Mediation offices which resulted in he and Mr Royce jointly completing the PEP.  However, Mr Degenhardt did not know about the relationship and would not have been in a position to appreciate whether Mr Royce's reporting of Ms Mills' performance was accurate or potentially biased.
  1. [57]
    Although Mr Royce denied that his relationship with Ms Mills created, at the very least, a potential conflict of interest, Ms Lang's response to Mr Royce's question about why the relationship should have been reported is enlightening:

--- the mere fact that you are in a relationship isn’t in and of itself a conflict of interest.  The failure to declare the relationship is where the conflict arises and that the parties with whom you would deal within the department who may not be aware of that conflict are - are placed in an extremely difficult position.

  1. [58]
    The type of problems that can arise from an undisclosed conflict of interest were revealed by Ms Mills during her evidence-in-chief (at Transcript 5-14 and 5-15) when she voiced her clear displeasure that Mr Royce had recommended other staff, on some occasions, to relieve him at the AO5 level when he took leave (unfortunately the transcript does not reveal either her body language or tone of voice - it was like watching a domestic dispute).  The impression I was left with was that Mr Royce normally recommended that Ms Mills replace him as the AO5 in the office when he took leave and that she expected it would happen as a matter of course.  Indeed, the pressure on Mr Royce to do just that, to preserve harmony in their relationship, highlights why the relationship should have been disclosed.
  1. [59]
    Mr Royce's failure to disclose the relationship as a potential conflict of interest, together with his shameless dishonesty, allowed him to travel to Thailand with Ms Mills in late August - early September 2013 to enjoy a holiday together.
  1. [60]
    Notwithstanding the need to pre-book airline flights, other travel arrangements and accommodation, Mr Royce claimed he did not know when the bookings were made or who made them.  Further, although acknowledging that Ms Mills had pre-approved leave before the bookings for both of them were made, he tried to shrug his participation off on the basis "I'm usually a last minute person" (Transcript 3-16) and that the trip was "medical treatment" his doctor recommended on 23 August 2013 - the first day of his eleven working days of "sick leave" (Transcript 3-18).
  1. [61]
    Mr Royce lied to Mr Degenhardt about the reason for his absence from work between 23 August 2013 and 6 September 2013 when he forwarded him an innocuous email at 4.13 pm on 23 August 2013 (cc to Ms Mills) in which he said, inter alia:

"I have attached a copy of my Dr certificate, will attend to ESS and roster things when I return.  The end of the month states (sic) will also be attended to when I return.

…"

  1. [62]
    He also lied to Ms Mills about their holiday in Thailand.  She thought Mr Royce, like herself, was heading off on approved recreation leave (see Transcript 5-40 and 5-41).
  1. [63]
    Relevantly, as alluded to in paragraph [60] above, the medical certificate Mr Royce sent to Mr Degenhardt certified that Mr Royce "is receiving medical treatment and for the period Friday 23 August 2013 to Friday 6 September 2013 inclusive will be unfit to continue his usual occupation".  The basis upon which the doctor concerned issued the medical certificate is not apparent.  When cross-examined about the medical treatment he was (allegedly) receiving, Mr Royce initially refused to answer on the basis it was confidential between he and his doctor.  When pressed to answer (and directed to) he claimed that, because he was burning out with stress and anxiety, the "treatment" was to remove himself from the situation.  He also claimed that the doctor wrote the words "receiving medical treatment" and that he did not ask the doctor to write anything:  "I just presented (at the surgery)".
  1. [64]
    I do not believe him.  He needed a Doctor's Certificate to cover the working days he planned to be away with Ms Mills in Thailand.  He also knew he could not apply for recreation leave because such absence, co-inciding with Ms Mills' absence, would have raised red flags with both Mr Degenhardt and Ms Lang because of Mr Mill's complaint earlier in the year about them being in an inappropriate relationship.
  1. [65]
    Although the fact that Mr Royce claimed sick leave to coincide with Ms Mills' approved recreation leave only came to light during the hearing, the nature and degree of his deceit in respect of that matter serves, in my view, to reinforce the validity of Ms Lang's decision to terminate his employment.  He simply could not be trusted to perform his duties, as required, in accordance with his obligations.
  1. [66]
    Not only did he ignore the policies and procedures which applied to him as a Justice Mediation Officer, he also ignored specific directions given to him by his line managers, Mr Degenhardt and Ms Lang, about making contact with outside parties and providing commentary on government policy and DRB policies and practices.  He also ignored the reprimand he was given on 18 December 2014, and the reasons attached to that reprimand, by contacting Dr Douglas' staff just weeks after the reprimand was issued to try to obtain material he would not otherwise have access to.  Finally, he ignored the clear instructions given to him about pecuniary limits by mediating a matter which resulted in a $350,000 settlement - nearly five times the limit.
  1. [67]
    As I recorded in paragraph [20] above, there was nothing harsh, unjust or unreasonable about Ms Lang's decision to terminate his employment.  Given the facts before her, she was entitled to conclude, as she told Mr Royce in his termination letter, his conduct had damaged the essential element of trust in the employment relationship to the extent that it could not be repaired.

Was Mr Royce terminated for an invalid reason?

  1. [68]
    Mr Royce's assertion that his termination was for an invalid reason or reasons, and thus unfair within the meaning of s 73(2) of the 1999 IR Act, is, to put it very bluntly, fanciful.
  1. [69]
    Although alluding to his discussions with Dr Douglas as constituting a public interest disclosure under the Public Interest Disclosure Act 2010 and Ms Smith's direction to him to leave his work-supplied mobile phone in the office overnight or if he was away as discriminatory behaviour, because his son had a medical condition and sometimes contacted him on that number, Mr Royce did nothing to advance either of these allegations during the hearing.
  1. [70]
    The only matter he did progress was in respect of Allegation 5, where he argued that the two photos of he and a topless Ms Mills in a spa were not "inappropriate material", as determined by Ms Lang (Allegation 5).  He also argued that Ms Lang had breached sections 7(a), (m), (n) and (p), 8, 9, 10, 11 and 15 of the Anti-Discrimination Act 1999, in dismissing him, as follows (Transcript 8-45):

Given Ms Lang has only found issue with the topless woman, and found no fault or issue with the same degree of exposure of myself, a topless male, it is patently clear from her evidence that if the two persons had been male in the same photo, the state of exposure would, therefore, not have been an issue with the photos, and the allegations around - pursuant to allegations 5.  Jennifer Lang has determined that the two persons being topless within the spa is grounds for dismissal, based on the fact that one is female.  There’s no issues or concerns with the male or the state of dress of that person, or the actions which have been undertaken in the spa.  It’s just the mere fact that one of the persons, who is topless, is a female.

  1. [71]
    As would be clearly apparent, Mr Royce was not dismissed for the reason he had stored two images on his work computer which showed a topless Ms Mills in a spa with him.  He was dismissed after Ms Lang considered ten allegations and found them all to have been established on the balance of probabilities.  As such, his claim that he was dismissed for an invalid reason or reasons must fail.

Alleged failure to interview witnesses and Ms Lang's bias

  1. [72]
    Mr Royce repeatedly argued that the ESU investigation and resulting show cause process was totally flawed because no-one interviewed "his witnesses" - being Dr Douglas, Mr Browne and Mr Hannay.  However, at no point during his interview with the investigators on 19 November 2015 did he request, or even suggest, that any of those persons could have shed further light on the matters raised with him.
  1. [73]
    In any event, there was no need for anyone to interview any of the persons named above.  Mr Royce was simply being asked to explain the nature of, and the reason for, the correspondence he had sent to them.  The suggestion that the whole process was seriously flawed and the termination should be reversed because those three witnesses were not interviewed is without merit and must be rejected.
  1. [74]
    Similarly, the suggestion that Ms Lang was biased, because she was in his chain of command and regularly met with Ms Smith as her supervisor, must also be rejected.  Ms Lang made it abundantly clear that while she had suggested to Ms Smith, at one point, that several of the latter's concerns about Mr Royce's actions should be taken up with the ESU, she nonetheless formulated her own conclusions about the disciplinary outcome after reading and considering all of the material before her.
  1. [75]
    As discussed above, there was ample evidence to support a decision to terminate - a decision Ms Lang only arrived at after considering the other options advanced on Mr Royce's behalf by Mr McDougall.  There was no bias involved.

Conclusion

  1. [76]
    For the foregoing reasons I formally record that Mr Royce's dismissal was not harsh, unjust or unreasonable nor for an invalid reason, within the meaning of those terms in s 73 of the 1999 IR Act.  As such, I dismiss Application TD/2016/98.
  1. [77]
    I reserve the matter of costs.
  1. [78]
    I determine and Order accordingly.
Close

Editorial Notes

  • Published Case Name:

    Stephen Royce v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Royce v Queensland

  • MNC:

    [2018] QIRC 143

  • Court:

    QIRC

  • Judge(s):

    Bloomfield DP

  • Date:

    28 Nov 2018

Litigation History

EventCitation or FileDateNotes
Primary Judgment[2018] QIRC 14328 Nov 2018Application for reinstatement of employment as mediator, alleging unfair dismissal; application dismissed: Bloomfield DP.
Primary Judgment[2019] ICQ 1929 Nov 2019Application to appeal against [2018] QIRC 143 dismissed: Martin J.
Primary Judgment[2019] ICQ 2212 Dec 2019Costs order following [2019] ICQ 19: Martin J.
Appeal Determined (QCA)[2021] QCA 9005 May 2021Appeal from [2019] ICQ 19 dismissed: Sofronoff P, Mullins JA, Ryan J.
Special Leave Refused (HCA)[2021] HCASL 17709 Sep 2021Application for special leave to appeal against [2021] QCA 90 refused: Gageler and Gleeson JJ.

Appeal Status

Appeal Determined - Special Leave Refused (HCA)

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