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Welsh v Logan City Council[2021] QIRC 141

Welsh v Logan City Council[2021] QIRC 141

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Welsh v Logan City Council [2021] QIRC 141

PARTIES:

Welsh, Brian

(Applicant)

v

Logan City Council

(Respondent)

CASE NO.:

B/2020/82

PROCEEDING:

Application for an order to stop bullying

DELIVERED ON:

29 April 2021

HEARING DATE:

3 February 2021

DATES OF WRITTEN SUBMISSIONS:

Applicant's written submissions filed on 18 February 2021, Respondent's written submissions filed on 2 March 2021 and Applicant's submissions in reply filed on 5 March 2021

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

The Applicant's application for an order to stop bullying is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – application for an order to stop bullying – consideration of the elements for Commission to be satisfied an employee has been bullied in the workplace within the meaning of s 272 of the Industrial Relations Act 2016 – consideration of the elements of s 275(1) of the Industrial Relations Act 2016 for Commission to have power to make an order to stop bullying – whether preliminary investigation, investigation and disciplinary procedure undertaken by certain employees of the respondent, in respect of the applicant, meant the applicant was bullied in the workplace – whether the conduct of those employees created a risk to the health and safety of the applicant – applicant not bullied in the workplace – application dismissed

LEGISLATION:

Fair Work Act 2009 (Cth), s 789FD and s 789FF

Industrial Relations Act 2016, s 8, s 272, s 273, and s 275

Local Government Act 2009, s 4, s 129, s 132, s 197, s 202 and sch 4

Local Government Regulation 2012, s 278, s 279, s 280 and s 283

Public Sector Ethics Act 1994, s 10 and s 24

Safety, Rehabilitation and Compensation Act 1988 (Cth), s 5A

Work Health and Safety Act 2011, s 7

Workers' Compensation and Rehabilitation Act 2003, s 32

Workers Rehabilitation and Compensation Act 1986 (SA), s 30A

CASES:

Australian Securities and Investments Commission v Hellicar [2012] HCA 17; (2012) 247 CLR 345

Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Jones v Dunkel [1959] HCA 8; (1959) 101 CLR 298

Kuhl v Zurich Financial Services Australia Ltd [2011] HCA 11; (2011) 243 CLR 361

Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274

Manly Council v Byrne [2004] NSWCA 123

Mayson v Mylan Health Pty Ltd & Ors [2020] FWC 1404

Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771

Ms SB [2014] FWC 2104

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661; (2015) 249 IR 135

Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252

South Eastern Sydney Local Health District v Lal [2019] FWCFB 1475; (2019) 285 IR 355

State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097

Vega v Hoyle & Ors [2015] QSC 111

Wirth v Mackay Hospital and Health Service [2016] QSC 39

APPEARANCES:

Mr N. Henderson of the Queensland Services, Industrial Union of Employees for the Applicant

Mr G. Watson and Ms B. Walker of the Respondent

Reasons for Decision

Introduction

  1. [1]
    Mr Brian Welsh has been employed by the Logan City Council since 2008. From about December 2018, Mr Welsh has been employed in the position of Capital Works & Contracts Project Manager in the Sports, Leisure and Facilities Branch of the Council. Prior to that time, including in 2016, Mr Welsh was a Senior Building Investigation Officer in the Development Assessment Branch.
  1. [2]
    In or about May 2015, Mr Welsh became the owner of a certain property at Slacks Creek which is within the local government area of the Council ('the property'). In July 2016, a ratepayer lodged a complaint with the Council in relation to works allegedly being undertaken on the property. At that time, Mr Paul Neylon, Land Use Investigation Team Leader, spoke to Mr Welsh about that matter. Mr Welsh advised Mr Neylon that a house was to be built on the property. Mr Neylon advised Mr Welsh that an appropriate building permit and building approval would be required.
  1. [3]
    Two years later, in August 2018, Mr Neylon spoke to Mr Philip Denman, Senior Building Compliance Officer, about the fact that no such action had been taken by Mr Welsh. Mr Denman inspected the property. Mr Denman then informed Mr Stephen Ball, the Council's Development Assessment Manager, of the matter. Mr Ball ordered a preliminary investigation to be undertaken ('the preliminary investigation'). After the preliminary investigation, Mr Ball formed the view that there was reasonable cause to suspect that Mr Welsh had carried out works on the property without the appropriate development and planning approvals by the Council and had improperly accessed Council files in relation to the property.
  1. [4]
    Mr Ball referred his suspicion to the Council's People and Culture Branch. Mr Geoff Watson, Senior Workforce Relations Advisor, then took carriage of the matter. An organisation called Ashdale was then instructed by the Council to conduct an investigation into two allegations ('the investigation'). In April 2020, Ashdale reported that the two allegations were capable of substantiation.
  1. [5]
    In August 2020, Mr Robert Strachan, the Council's Director, Organisational Services, commenced a disciplinary procedure against Mr Welsh ('the disciplinary procedure'). Mr Strachan asked Mr Welsh to show cause why disciplinary action should not be taken against him ('the show cause') in relation to the two allegations, namely, that Mr Welsh:
  • had carried out works on the property without an effective development permit ('the unapproved works allegation'); and
  • had improperly accessed Council files in relation to the property or failed to maintain the integrity of his access to the Council's Document Management System ('the improper accessing of files allegation').
  1. [6]
    In September 2020, Mr Welsh responded to the show cause. In October 2020, Mr Strachan provided Mr Welsh with a Notice of Intended Disciplinary Action ('the notice') on the basis that he found that the two allegations were proven and that, as a consequence, Mr Welsh had contravened the Council's Code of Conduct for Staff ('the Code'). Mr Strachan invited Mr Welsh to respond as to why he should not be dismissed.
  1. [7]
    Before he responded to the notice, by application filed on 17 November 2020, Mr Welsh, pursuant to s 273 of the Industrial Relations Act 2016 ('the Act'), applied for an order to stop bullying. Mr Welsh seeks a decision that:
  • the Council ceases and desists from all forms of bullying behaviour directed towards himself; and
  • the Council withdraws the notice.
  1. [8]
    Mr Welsh's claim is that there was action taken by Council employees in the preliminary investigation, the investigation and the disciplinary procedure, which was repeated, unreasonable behaviour, which created a risk to his health and safety, and that there is a risk that behaviour will continue which amounts to him being bullied in the workplace.
  1. [9]
    The Council contends that the action taken by its employees against Mr Welsh constituted reasonable action carried out in a reasonable way.
  1. [10]
    Having regard to the parties' submissions and to s 272 and s 275 of the Act, the questions for my determination are:
  • while Mr Welsh was at work, did certain employees of the Council, in respect of the preliminary investigation, the investigation and the disciplinary procedure, repeatedly behave unreasonably towards Mr Welsh? and, if so
  • did that behaviour create a risk to the health and safety of Mr Welsh? and, if so
  • was that behaviour other than reasonable management action carried out in a reasonable manner? and, if so
  • is there a risk Mr Welsh will continue to be bullied in the workplace? and, if so
  • what order, pursuant to s 275 of the Act, should be made?
  1. [11]
    For the reasons that follow, the impugned behaviour of the relevant Council employees was not repeated, unreasonable behaviour. For that reason, I cannot be satisfied that Mr Welsh has been bullied in the workplace.

The Act and its application to the facts of the present case

  1. [12]
    Before turning to the question of whether or not the impugned behaviour of the relevant employees of the Council toward Mr Welsh was repeated, unreasonable behaviour, it is necessary to consider the relevant provisions of the Act.
  1. [13]
    Recommendation 32 of the December 2015 report of the Industrial Relations Legislative Reform Reference Group was that employees be given access to an antibullying jurisdiction, through the Commission, similar to that as provided through the Fair Work Commission ('FWC').[1] That recommendation was adopted by the Queensland government, resulting in the enactment of ch 7 of the Act.[2]
  1. [14]
    The purpose of ch 7 of the Act is to confer power on the Commission, upon application by an employee who reasonably believes he or she has been bullied in the workplace, to make any orders it considers appropriate, other than an order requiring payment of a pecuniary amount, to prevent the employee from being bullied in the workplace.

Section 272 of the Act

  1. [15]
    Section 272 of the Act defines when an employee is bullied in the workplace and provides:

272  When is an employee bullied in the workplace

  1. (1)
    An employee is bullied in the workplace if-
  1. (a)
    while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards-
  1. (i)
    the employee; or
  1. (ii)
    a group of employees of which the employee is a member; and
  1. (b)
    that behaviour creates a risk to the health and safety of the employee.

Note-

For the meaning of employee for this chapter, see section 8(2).

  1. (2)
    To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
  1. [16]
    The elements of the equivalent provisions in s 789FD of the Fair Work Act 2009 ('the FW Act') have been considered by the FWC.

All the elements of s 272 of the Act must be read together

  1. [17]
    All the requirements of s 272 of the Act must be read together. This means the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards an applicant and whether that behaviour has created a risk to health and safety.[3]
  1. [18]
    A positive finding on each of those elements, and if appropriate, a finding that the circumstances contemplated in s 272(2) of the Act do not apply to the behaviour, must be made out for the Commission to find that an applicant has been bullied at work.[4]

Employee

  1. [19]
    An employee, for the purposes of ch 7 of the Act, is a worker under s 7 of the Work Health and Safety Act 2011,[5] other than a worker under the FW Act who may apply for an order under ch 6, pt 6-4B of the FW Act in relation to the bullying.[6]

While the employee is at work

  1. [20]
    The concept of an employee being 'at work' encompasses both the performance of work (at any time or location) and when the worker is engaged in some other activity which is authorised or permitted by their employer.[7]

An individual or group of individuals repeatedly behaves unreasonably towards the employee or a group of employees of which the employee is a member

  1. [21]
    The concept of an individual or individuals engaging in repeated, unreasonable behaviour implies the existence of persistent, unreasonable behaviour which might refer to a range of behaviours over time, however, no specific number of incidents is required for the behaviour to represent repeated, unreasonable behaviour, provided there is more than one occurrence. The same specific behaviour does not have to be repeated.[8]
  1. [22]
    In addition, 'unreasonable behaviour' should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable such that the assessment of the behaviour involves an objective test having regard to all the relevant circumstances applying at the time.[9]
  1. [23]
    The federal authorities indicate that three other matters must be considered.
  1. [24]
    First, the purpose of the provisions is to establish a mechanism by which the bullying of an employee at work may be stopped. In applying the expression 'repeatedly behaves unreasonably', the concept of repeated, unreasonable behaviour is not to be approached in a manner which divorces it from that purpose. The subject matter is bullying at work and that must be borne steadily in mind in any consideration as to whether particular behaviours are unreasonable. A consideration of unreasonable behaviour which loses sight of the objective and subject matter of the provisions may lead to them not achieving their intended purposes or being used for a purpose that was not intended.[10]
  1. [25]
    Secondly, the legal standard of unreasonableness should not be considered as limited to what is in effect an irrational, if not bizarre, decision; namely, one that is so unreasonable that no reasonable person could have arrived at it. Unreasonableness is a conclusion which may be applied to a decision which lacks an evident and intelligible justification.[11]
  1. [26]
    Thirdly, in order for conduct to be reasonable, it does not have to be the best or preferable course of action.[12]
  1. [27]
    The features that one might expect to find in a course of repeated, unreasonable behaviour that would constitute bullying at work include intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation, freezing-out, ostracism, innuendo, rumourmongering, disrespect, mobbing, mocking, victim-blaming and discrimination.[13]
  1. [28]
    Naturally, in considering whether there has been unreasonable behaviour by an individual or group of individuals towards an employee, it will be necessary to determine whether the alleged behaviour actually occurred.[14]
  1. [29]
    In my view, the preposition 'towards' in s 272(1)(a) of the Act, having regard to the purpose of ch 7 of the Act, should be given its ordinary, broad meaning, namely 'with respect to.'[15]

Creates a risk of health and safety to the employee

  1. [30]
    There must be a causal link between the behaviour and the risk to health and safety. The behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. A risk to health and safety means the possibility of danger to health and safety, which is not confined to actual danger to health and safety. The risk must also be real and not simply conceptual.[16]
  1. [31]
    It is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety, namely, actual illness or injury, in order to demonstrate the necessary risk.
  1. [32]
    However, the existence of an illness may be relied upon as a manifestation of the necessary risk, provided the requisite causal link to the unreasonable behaviour at work has been established.[17]

Reasonable management action carried out in a reasonable manner

  1. [33]
    Section 272(2) of the Act operates, as expressly stated, to remove any doubt by declaring that s 272(1) of the Act does not apply to reasonable management action carried out in a reasonable manner.
  1. [34]
    For s 272(2) of the Act to operate, three elements must be made out, namely:
  • the behaviour, being relied upon as repeated, unreasonable behaviour by the employee (applicant), must be management action;
  • the management action must be reasonable; and
  • the reasonable management action must be carried out in a reasonable manner.[18]
  1. [35]
    The phrase 'reasonable management action carried out in a reasonable manner' is similar, but not identical to, for example, the phrase used in s 32(5)(a) of the Workers' Compensation and Rehabilitation Act 2003 ('the WC Act'), which operates to remove a psychiatric or psychological disorder, from the statutory definition of 'injury', which arises out of, or in the course of reasonable management action taken in a reasonable way in connection with the worker's employment. The federal workplace bullying authorities have drawn upon cases decided under analogous provisions in workers' compensation legislation such as s 5A of the Safety, Rehabilitation and Compensation Act 1988 (Cth) and s 30A of the Workers Rehabilitation and Compensation Act 1986 (SA).[19]

Management action

  1. [36]
    The verb 'manage' relevantly means '… to handle, direct, govern, or control in action or use'[20] and the noun 'management' relevantly means '… the act or manner of managing; handling, direction, or control.'[21]
  1. [37]
    The phrase 'management action' has been construed, in the context of s 32(5) of the WC Act, by having regard to the examples of reasonable management action given in that section,[22] to be specific management action directed to the employee's employment itself as opposed to the everyday duties and incidental tasks of a worker's employment.[23]
  1. [38]
    However, the definition of when an employee is bullied in the workplace includes that while the employee is at work, an individual or group of individuals, repeatedly behaves unreasonably towards the employee. Indeed, the purpose of ch 7 of the Act is to confer power on the Commission to make any (non-pecuniary) order it considers appropriate to prevent the employee from being bullied in the workplace. For these reasons, my opinion is that the phrase 'management action' should be construed to include management action about or concerning the everyday duties and incidental tasks of an employee.

Reasonable management action

  1. [39]
    In Ms SB,[24] Commissioner Hampton stated:

[49]  Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include:

  • the circumstances that led to and created the need for the management action to be taken;
  • the circumstances while the management action was being taken; and
  • the consequences that flowed from the management action.

[50]  The specific ‘attributes and circumstances’ of the situation including the emotional state and psychological health of the worker involved may also be relevant.

[51]  The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was ‘more reasonable’ or ‘more acceptable’. In general terms this is likely to mean that:

  • management actions do not need to be perfect or ideal to be considered reasonable;
  • a course of action may still be ‘reasonable action’ even if particular steps are not;
  • to be considered reasonable, the action must also be lawful and not be ‘irrational, absurd or ridiculous’;
  • any ‘unreasonableness’ must arise from the actual management action in question, rather than the applicant’s perception of it; and
  • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances.

[52]  For the circumstances in s. 789FD(2) of the FW Act to apply, the management action must also be carried out in a ‘reasonable manner’. Consistent with the approach above, what is ‘reasonable’ is a question of fact and the test is an objective one.

[53]  Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.

  1. [40]
    The principles, as summarised by Commissioner Hampton, about the phrase '… reasonable management action carried out in a reasonable manner', generally accord with the principles observed by this Commission in applying s 32(5)(a) of the WC Act.[25]

Section 275 of the Act

  1. [41]
    Section 275 of the Act sets out the Commission's power to make orders to stop bullying and provides:

275 Commission may make orders to stop bullying

  1. (1)
    This section applies if-
  1. (a)
    an employee has made an application under section 273; and
  1. (b)
    the commission is satisfied that-
  1. (i)
    the employee has been bullied in the workplace; and
  1. (ii)
    there is a risk that the employee will continue to be bullied in the workplace.
  1. (2)
    The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.
  1. (3)
    In considering the terms of an order, the commission must take into account-
  1. (a)
    if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity-those outcomes; and
  1. (b)
    if the commission is aware of any procedure available to the employee to resolve grievances or disputes-that procedure; and
  1. (c)
    if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes-those outcomes; and
  1. (d)
    any other matter the commission considers relevant.
  1. [42]
    If the Commission is satisfied that an applicant/employee has been bullied in the workplace, before the Commission has discretion to make an order to stop bullying, the Commission must also be satisfied that there is a risk that the employee will continue to be bullied in the workplace.
  1. [43]
    The ordinary meaning of the noun 'risk' is exposure to the chance of injury or loss, a hazard or dangerous chance.[26]
  1. [44]
    In my view, the risk referred to in s 275(1)(b)(ii) of the Act is a risk that the employee will continue to be bullied in the workplace by the same individual or group of individuals who the Commission is satisfied have bullied the applicant/employee in the workplace. This is consistent with the approach taken by the FWC on the similar, but not identical, provision in s 789FF(1)(b)(ii) of the FW Act.[27]

While Mr Welsh was at work, did certain employees of the Council, in respect of the preliminary investigation, the investigation and the disciplinary procedure, repeatedly behave unreasonably towards Mr Welsh?

Mr Welsh is an employee

  1. [45]
    There is no dispute that Mr Welsh is an employee of the Council.[28]

The impugned behaviour occurred while Mr Welsh was at work

  1. [46]
    The Council does not dispute that the alleged bullying behaviour occurred while Mr Welsh was at work.[29]

What is the impugned behaviour?

  1. [47]
    Mr Welsh submitted that:
  • the allegations of bullying relate to the unapproved works allegation and the improper accessing of files allegation;[30]
  • in relation to the unapproved works allegation and the improper accessing of files allegation assessed in the Ashdale report, the standard of evidence upon which any substantiation should have occurred, should have been to the standard of evidence referred to in Briginshaw v Briginshaw ('Briginshaw');[31]
  • the individuals who have repeatedly behaved in an unreasonable way towards him, were Mr Strachan, Mr Ball and '… a number of employees who have carried out their instructions in relation to pursuing the applicant in relation to the two matters';[32] and
  • the unreasonable behaviour by the individuals was manifested in their failure to follow the relevant Council procedures, the consequence of which was that they '… ultimately failed to treat the applicant reasonably in accordance with either any applicable procedure, the principles of natural justice or in accordance with the requirements of the applicable legislation; the Sustainable Planning Act and the Local Government Act.'[33]
  1. [48]
    Mr Welsh submitted that the bullying conduct was in the form of:
  1. Disciplinary action in relation to matters which had never been pursued under the legislation which was claimed to have been contravened eg Sustainable Planning Act;
  1. Disciplinary action in relation to matters which were not raised with the applicant in the same way that a non-employee resident of the Council would or could have expected;
  1. Disciplinary action carried out in a way which ignored the usual requirements of natural justice and did not treat the applicant fairly;
  1. Entry onto the applicant's property without regard for the respondent's own processes in relation to entry onto premises;
  1. Entry onto the applicant's property without regard for the requirements of the legislation under which entry was purportedly effected;
  1. Constant and continuing threat of the termination of the applicant's employment.[34]
  1. [49]
    In his final submissions, Mr Welsh dealt directly with the question of whether he was the subject of reasonable management action carried out in a reasonable manner.[35] Mr Welsh submitted that the (management) action taken against him was taken in an unreasonable manner because the Council denied him procedural fairness dictated by its own processes and that the Council purported to use processes available under the Local Government Act 2009 ('the LG Act') without complying with those processes.[36]
  1. [50]
    Mr Welsh submits that the management action taken against him was carried out in an unreasonable manner because it was riddled with errors and was inherently unfair,[37] namely:
  • in relation to the unapproved works allegation:

on 22 August 2018, during the preliminary investigation, the entry onto the property by Mr Denman, without Mr Welsh's knowledge and permission, was contrary to s 132 of the LG Act;[38]

there was a failure to follow the procedures in the Council's Building Compliance Procedure ('BCP');[39]

there were references to repealed legislation;[40]

there were references to provisions of an Act that does not exist;[41]

there were references to provisions of an Act in relation to matters not covered by the provision, such as s 202 of the LG Act;[42] and

  • in relation to the improper accessing of files allegation, Mr Strachan did not satisfy himself that this allegation was proven to the Briginshaw[43] standard of evidence.[44]
  1. [51]
    In relation to the unapproved works allegation, Mr Welsh's evidence-in-chief is that the Council (through particular officers) did not follow any processes afforded to residents or ratepayers of the Council about allegations of unapproved work. Mr Welsh contends that:
  • Council officers would not have entered the private property of ratepayers and unlawfully taken photographs; and
  • if the Council (through its officers) formed the view that unauthorised works had taken place, the usual practice was to issue a show cause notice and then issue an enforcement notice either under the Planning Act 2016 or under the Building Act 1975, which allows a defence to be prepared, and that this legislation was not followed.[45]
  1. [52]
    Mr Welsh's further evidence is that the Council '… has repeatedly treated me in a manner different to any other resident and has not provided requested information to enable me to defend myself, which is the usual entitlement of a resident/Rate payer.'[46]
  1. [53]
    Mr Welsh concluded his evidence by stating that the conduct of the Council '… is unreasonable in that it is applying a different approach to me than what would apply to a member of the public in circumstances where the issue is unrelated to my employment.'[47]
  1. [54]
    Despite the failure of Mr Welsh, in some aspects of his written submissions, to precisely identify the individual or individuals who he said had engaged in unreasonable behaviour or unreasonable management action towards him, given the evidence led by both parties, the identity of those individuals was clear to me.
  1. [55]
    The Council, in its pre-hearing submissions, contended that there is no evidence that Mr Welsh has been bullied in the workplace within the meaning of s 272 of the Act in that:
  • there is no evidence 'the Respondent' has repeatedly behaved unreasonably towards Mr Welsh or that such behaviour creates a risk to the health and safety of Mr Welsh; and
  • the conduct of which Mr Welsh complains was undertaken as part of a workplace investigation and disciplinary process and is reasonable management action carried out in a reasonable manner.[48]
  1. [56]
    In its final submissions, the Council summarises the conduct taken by its employees concerning the preliminary investigation, the investigation and disciplinary action taken against Mr Welsh in the following way:
  1.  In dealing with whether the reasonable management action exclusion applies, the Applicant appears to have adopted a submission that can be properly summarised as conduct on the part of the Applicant that should never have been investigated in an employment context on the basis that basis [sic] the proper jurisdiction was under the SPA. Further, and because the Respondent did not pursue the Applicant in that context, he is now being pursued as punishment because the Applicant says, the Respondent failed at that earlier time to follow its own policies and procedures in the relevant provisions under the SPA as then in force.
  1.  It is our submission that the Applicant's approach to the evidence in support of his submission is misconceived. If the Commission is to accept that the Respondent had [sic] proper basis for pursuing the Applicant in relation to the Applicant's relevant conduct in the context of his employment in accordance with its Management Directive, then the Applicant's approach to the evidence should not be accepted.
  1.  The Respondent's approach to the evidence follows a course usually applied when an employer undertakes an independent investigation into allegations that have arisen as part of the employment. The Applicant asserts the Respondent's dealing with the matters under its Management Directive to be unreasonable because the Respondent did not properly deal with the complaint and did not pursue the Applicant under the SPA.

 

  1.  At no time was the Respondent mandatorily obligated to pursue the matter under the SPA, and the fact that it didn't, doesn't preclude the Respondent from undertaking an investigation under the Management Directive into one of its employees in relation to conduct that is relevant to the employment.
  1.  To support otherwise, the Applicant asserts that the Respondent led evidence from Mr Ball in support of the approach taken, presumably under the SPA. The Respondent rejects this assertion and submits that it only led the evidence from Mr Ball in relation to his involvement in the early stages of the workplace investigation, and not for the purpose the Applicant says.

 

  1.  In dealing with the evidence, it is the Respondent's submission that the proper approach is to look to the process to which the Applicant was pursued and determine whether the Respondent was entitled to rely upon that process and whether it was followed. In the present circumstances, the relevant process is contained in the Management Directive.[49]

Did the relevant Council employees, in the preliminary investigation, the investigation and the disciplinary procedure, repeatedly behave unreasonably towards Mr Welsh?

  1. [57]
    I have marshalled up Mr Welsh's claims, that the conduct of the relevant Council employees was unreasonable or unreasonable management action, by reference to the preliminary investigation, the investigation and the disciplinary procedure.

The preliminary investigation

  1. [58]
    Mr Welsh claims that the conduct of Mr Neylon, Mr Denman and Mr Ball was repeated, unreasonable behaviour.
  1. [59]
    Mr Welsh claims that:
  • the original complaint has never been provided to him (by Mr Neylon, I assume);[50]
  • Mr Denman did not comply with s 132(5) of the LG Act and the processes in Exhibit 8 when he entered the property on 22 August 2018;[51]
  • entry to the property by Mr Denman was for a reason other than one referred to in s 132 of the LG Act;[52]
  • the Council relied on the alleged assurances that he (Mr Welsh) gave to Mr Neylon, to conclude that he waited too long to obtain an appropriate permit in respect of the property;[53] and
  • Mr Ball's conduct did not comply with the Council's show cause notice and enforcement notice procedures in respect of non-compliance with the Planning Act 2016 and the Building Act 1975.[54]

The original complaint was never provided to Mr Welsh

  1. [60]
    On 19 July 2016, a ratepayer of the Council made a complaint about an excavator bringing in soil and levelling the land of the property, that the front of the property was also being levelled and that retaining walls on the front boundary were being removed.[55]
  1. [61]
    On reviewing the actual complaint, it is clear that it is a complaint to the Council about work performed on the property as it may affect the ratepayer's property.
  1. [62]
    The complaint was allocated to Mr Neylon.[56] By email dated 21 July 2016 to an unidentified employee within the Council,[57] Mr Neylon stated that he had spoken to Mr Welsh about the subject matter of the complaint.[58] The recipient of that email asked Mr Ingo Toerkel, Acting Building Services Program Leader, to speak to Mr Welsh.[59] Mr Toerkel's evidence-in-chief was that, based on a review of his work calendar and emails, he did not speak to Mr Welsh on 21 or 22 July 2016. However, by email sent on 22 July 2016, Mr Toerkel informed the unidentified employee that he had spoken with Mr Welsh and had re-emphasised the Code and access to the Council's resources for private purposes.[60] In cross-examination, after these emails were put to him, Mr Toerkel stated that he must have spoken to Mr Welsh on 21 or 22 July 2016.[61]
  1. [63]
    Mr Welsh does not dispute that Mr Neylon spoke to him about the matters the subject of the complaint on 21 July 2016.[62] In fact, in Mr Welsh's response to the show cause dated 17 September 2020, not only did Mr Welsh confirm a conversation between him and Mr Neylon, but Mr Welsh stated that after he advised Mr Neylon that there was going to be a house built on the property, Mr Neylon advised Mr Welsh that a building permit would be required and that a building approval would cover any earthworks associated with the building of the house.[63] In that same response, Mr Welsh stated that he was '… given the opportunity to regularise the building works on site and that did occur.'[64]
  1. [64]
    While Mr Welsh may not have been given a copy of the written complaint, there were certainly conversations initiated by other employees of the Council with him about the subject matter of the complaint. For this reason, I do not think the failure to give Mr Welsh a copy of the written complaint was unreasonable behaviour.

Mr Denman did not comply with s 132(5) of the LG Act and the processes in Exhibit 8 when he entered the property on 22 August 2018 and his entry to the property was for a reason other than one referred to in s 132 of the LG Act

  1. [65]
    Mr Ball's evidence in cross-examination was that:
  • Mr Neylon had concerns that a member of the team had outstanding approvals that were required, that nothing had been done for a long time and that Mr Neylon had then raised that with his supervisor, Mr Denman;[65]
  • Mr Denman entered the property on 22 August 2018, under s 132 of the LG Act[66] to check the conditions;[67]
  • Mr Denman then had a conversation with Mr Ball on 23 August 2018 and stated to Mr Ball that the issue had been raised with him, that it was a bit concerning, that he had been to the property and that '… it had not been fixed, so it is still an ongoing matter that needs to be resolved.';[68]
  • Mr Denman did not tell Mr Ball about the issue prior to Mr Denman entering the property on 22 August 2018;[69] and
  • Mr Denman told him the matter was two years old.[70]
  1. [66]
    Mr Welsh does not dispute that, pursuant to s 132(1) and s 132(4) of the LG Act, Mr Denman, on 22 August 2018, could have entered the property without Mr Welsh's permission.[71] This is because of Mr Welsh's Material Change of Use Application, in relation to the property, made to the Council dated 18 April 2016.[72] It seems to me that this concession made by Mr Welsh was properly made. Section 132(1)(a) of the LG Act provides that the section applies if an authorised person wants to enter a property to inspect the property in order to process an application made under any 'Local Government Act', namely, a law under which a local government performs the local government’s responsibilities.[73]
  1. [67]
    Exhibit 8 was the BCP for the purposes of the Sustainable Planning Act 2009 (now repealed) and the Building Act 1975. The BCP dealt with how the Council dealt with complaints about potential development offences, including where a person carries out an assessable development without an effective development permit, and how such complaints were to be investigated, remedied, enforced and penalised. In particular, in relation to investigations, the BCP provided that the case officer:
  • must where practicable, make a reasonable attempt to contact the owner or occupier by telephone or in writing prior to attendance;[74]
  • must enter the property strictly in accordance with the powers of entry provisions contained in the LG Act;[75]
  • should interview the relevant persons who the case officer believes may have contravened legislation;[76]
  • should obtain the consent of the occupier prior to taking photographs on the private property;[77] and
  • should leave a calling card requesting the relevant party to contact the Council as soon as possible.[78]
  1. [68]
    Having regard to Mr Welsh's concession and to Mr Ball's evidence about how this matter came to his attention, there is not sufficient evidence for me to find that Mr Denman's entry onto the property on 22 August 2018 was for a purpose other than that for which he was authorised under s 132(1) of the LG Act.
  1. [69]
    However, pursuant to s 132(5)(a) and (b) of the LG Act, as soon as entering the property, Mr Denman had to inform Mr Welsh of the reason for entering the property and that he was authorised under the LG Act to enter the property without Mr Welsh's permission. The BCP also required contact to be made with a person the case officer believes may have contravened relevant legislation. Mr Welsh submits that no notification was provided to him by Mr Denman.[79] Mr Denman was not called as a witness. Neither Mr Ball nor Mr Strachan were able to say if any such information was provided to Mr Welsh by Mr Denman.[80]
  1. [70]
    The weight of the evidence is that Mr Denman failed to comply with his obligation under s 132(5) of the LG Act. That obligation applied whether or not the occupier was an employee of the Council. The weight of evidence is also that Mr Denman did not comply with the BCP in respect of contacting Mr Welsh as the owner or occupier of the property. This was not reasonable behaviour on Mr Denman's part.

The reliance on the alleged delay by Mr Welsh, following his alleged assurances to Mr Neylon, to obtain an appropriate permit in respect of the property

  1. [71]
    In his submissions, Mr Welsh submits that there are a number of persons who were spoken to by the (Ashdale) investigators who should have been called to give evidence given the nature of what has been claimed. Mr Welsh submitted that it had been claimed that he gave assurances to Mr Neylon that he would lodge a relevant development application with the Council, however, there is no evidence from anyone that such assurances were given and the Council did not cross-examine him on that issue.[81] Mr Welsh then submits that, having regard to the decision of the High Court in Jones v Dunkel,[82] the Council's failure to call Mr Neylon gives rise to an inference that his evidence may not have assisted the Council's case.[83]
  1. [72]
    The principle in Jones v Dunkel was referred to in Kuhl v Zurich Financial Services Australia Ltd.[84] In that case, Heydon, Crennan and Bell JJ stated that two inferences may be drawn from the application of the rule, namely:
  • the unexplained failure by a party to give evidence or to call a witness or tender certain documents may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted the party's case and that is particularly so where it is the party which is the uncalled witness; and
  • the failure to call a witness may also permit a court to draw, with greater confidence, any inference unfavourable to the party that failed to call the witness if that uncalled witness appears to be in a position to cast light on whether the inference should be drawn.[85]
  1. [73]
    The principle in Jones v Dunkel was also referred to in Australian Securities and Investments Commission v Hellicar,[86] where French CJ, Gummow, Hayne, Kiefel and Bell JJ stated that:
  • disputed questions of fact must be decided by a court according to the evidence that the parties adduce, not according to some speculation about what other evidence might possibly have been led;
  • principles governing the onus and standard of proof must be faithfully applied;
  • there are cases where demonstration that other evidence could have been, but was not called, may properly be taken into account in determining whether a party has proved its case to the requisite standard, but both the circumstances in which that may be done and the way in which the absence of evidence may be taken into account are confined by well-known and acceptable principles; and
  • the decision in Jones v Dunkel is a particular and vivid example of the principles that govern how the demonstration that other evidence that could have been called, but was not, may be used.[87]
  1. [74]
    The inferences permitted by Jones v Dunkel which are drawn, if at all, are drawn once all the evidence in the case is in.[88] Further, if the evidence which has been admitted is enough to prove the case of the party who was not called a witness, the tribunal of fact could be justified in not counting the failure of that party to call that witness as something that reduces the strength of that case.[89]
  1. [75]
    In the notice, Mr Strachan stated that:
  1. (i)
    Despite assurances to Mr Neylon that you would obtain an appropriate permit for the earthworks over a period of nearly 2 years, this did not occur.[90]
  1. [76]
    The authors of the Ashdale report were not called to give evidence. Mr Neylon was interviewed as part of the Ashdale investigation. The report states that Mr Neylon told an Ashdale investigator that soon after the complaint from the ratepayer came in, he spoke to Mr Welsh and informed Mr Welsh that he needed a development approval for operational works or earthworks.[91] The report further noted that:
  • two to three months after that initial conversation, Mr Neylon told Mr Welsh to get a building certification;[92] and
  • during a subsequent conversation, Mr Neylon again told Mr Welsh he needed a building certification.[93]
  1. [77]
    As referred to above in paragraph [63], Mr Welsh, in his response dated 17 September 2020 to the show cause, confirmed that:
  • a conversation occurred between him and Mr Neylon;
  • he advised Mr Neylon that there was going to be a house built on the property, that Mr Neylon advised him that a building permit would be required and that a building approval would cover any earthworks associated with the building of the house; and
  • Mr Welsh stated that he was given the opportunity to regularise the building works on the site.
  1. [78]
    I am not persuaded that the failure of the Council to call Mr Neylon as a witness compels me to draw the inference that his evidence would not have assisted the Council's case. The Council's case is that the conduct of its employees towards Mr Welsh was reasonable and amounted to reasonable management action carried out in a reasonable manner. On Mr Welsh's own admissions, Mr Neylon advised him that a building permit would be required and that a building approval would cover any earthworks associated with the building of the house on the property. Mr Welsh also states that he was given an opportunity to regularise the building works on the property. In fact, such regularisation did occur. A building certification was obtained by Mr Welsh on 1 November 2018 and a final building approval was provided to the Council on 14 May 2019.[94] In Mr Welsh's response dated 17 September 2020 to the show cause, he did not deny the allegation that he gave assurances that he would obtain the appropriate permit,[95] despite that express allegation being given in the show cause.[96] Similarly, in Mr Welsh's response dated 20 November 2020 to the notice, he did not dispute[97] that same finding by Mr Strachan.[98]
  1. [79]
    Even if Mr Welsh did not give any such assurances to Mr Neylon to obtain the appropriate approvals from the Council, Mr Welsh was still left to his own devices to obtain the relevant approvals. After July 2016, no action was taken against Mr Welsh, as an owner of the property, by the Council. This is one of the claims made by Mr Welsh of unreasonable behaviour, namely, that he was not treated by the Council as a member of the public because he was not given the opportunity to remedy any noncompliance through a show cause process or enforcement process.
  1. [80]
    However, by August 2018, for reasons I discuss in more detail later, when it had come to the attention of the Council that Mr Welsh had still not obtained the appropriate approval, it was at that point in time that the Council took action against Mr Welsh as an employee.

Mr Ball's conduct in not complying with the Council's show cause notice and enforcement notice procedures in respect of non-compliance with the Planning Act 2016 and the Building Act 1975

  1. [81]
    Exhibit 9 was a Council fact sheet which sets out the show cause notice process undertaken by the Council in investigating a belief that there had been a contravention of the Planning Act 2016 or the Building Act 1975. Exhibit 10 was a Council fact sheet in respect of it issuing building enforcement notices in relation to such contraventions.
  1. [82]
    In or about January 2018, Mr Ball became the Development Assessment Manager. Mr Welsh was employed as a Senior Building Investigation Officer in the Development Assessment Branch at that time.[99] The unchallenged evidence of Mr Ball was that as a Building Investigation Officer, Mr Welsh's role was to investigate and enforce complaints of unlawful building works.[100]
  1. [83]
    Mr Ball's evidence was that, in August 2018, he was made aware:
  • of an outstanding compliance matter in relation to the property;
  • that the matter had arisen as a result of a complaint from a ratepayer in relation to works undertaken at the property; and
  • that '… the officer with carriage of the matter was concerned that it had been outstanding for some time and that a member of the public would have been prosecuted by then.'[101]
  1. [84]
    Mr Ball was cross-examined about the actions the Council would take against a member of the public who may have contravened the Planning Act 2016 or the Building Act 1975.[102] Mr Ball's evidence was that such action would include receiving a show cause notice[103] or receiving an enforcement notice[104] and then prosecution.[105]
  1. [85]
    Mr Ball's evidence, in relation to any action by the Council against Mr Welsh of issuing a show cause notice or enforcement notice under the Planning Act 2016 or the Building Act 1975, was that:
  • he did not know what happened prior to 2018;[106] and
  • the Council did not take any such action after 2018.[107]
  1. [86]
    As best as I can make out Mr Ball's evidence, it seems that after Mr Denman spoke to him, he (Mr Ball) directed another employee, Ms Emily Shafto, to conduct a preliminary investigation in order to ascertain whether there was something to be concerned about.[108] Mr Ball's evidence was that the preliminary investigation indicated, amongst other matters, that there was reasonable cause to suspect that Mr Welsh had carried out unapproved works at the property and associated development offences had not been regularised.[109]
  1. [87]
    Mr Welsh's principal complaint about Mr Ball's behaviour[110] (and Mr Strachan's later behaviour when disciplinary action was commenced)[111] is that he (Mr Welsh) was the subject of unreasonable behaviour because he was not treated as a member of the public or as a ratepayer in that he was not issued with a show cause or an enforcement notice under either the Planning Act 2016 or the Building Act 1975.
  1. [88]
    I cannot accept this submission.
  1. [89]
    Mr Welsh does not dispute that Mr Neylon spoke to him about the matters on 21 July 2016. Between July 2016 and August 2018, the Council took no action against Mr Welsh, by issuing a show cause or an enforcement notice, under the Planning Act 2016 or the Building Act 1975, in relation to any matter concerning the property. It is not disputed by the Council that, by August 2018, any such action would be statute barred.
  1. [90]
    On the evidence before me, the fact is that someone in the Council decided to leave it to Mr Welsh to take the necessary steps to remedy any compliance issues in relation to the property. Whether or not Mr Welsh gave any assurances to regularise the building works on the site, it was left to Mr Welsh to obtain whatever necessary permits or approvals were required for the property under the relevant legislation. I make this finding because of the undisputed conversation Mr Neylon had with Mr Welsh on 21 July 2016 and the fact that no formal action was taken by the Council against Mr Welsh, as a property owner, after that time.
  1. [91]
    As referred to earlier, a building certification was obtained by Mr Welsh on 1 November 2018 and a final building approval was provided to the Council on 14 May 2019. However, having regard to the show cause, the allegation was that between 17 May 2016 and 2 July 2016, Mr Welsh undertook works on the property without the necessary development permit.[112]
  1. [92]
    By August 2018, it had come to Mr Ball's attention, through Mr Denman as alerted by Mr Neylon, that there was an outstanding development approval issue in relation to the property. That caused Mr Ball to ask Ms Shafto to conduct the preliminary investigation, which she did, which in turn led to matters being referred to Mr Watson. Mr Watson arranged for Ashdale to conduct an investigation not only in relation to the improper accessing of files allegation but also in relation to the unapproved works allegation.
  1. [93]
    Is the impugned behaviour of Mr Ball, that he did not take show cause and enforcement action against Mr Welsh as the Council would with a member of the public or a ratepayer, unreasonable? In my view, the answer lies in the obligations of local government employees under the Code.
  1. [94]
    By virtue of pt 4 of the Public Sector Ethics Act 1994, in recognition of the ethics principles and ethics values contained in pts 2 and 3 of that Act, codes of conduct are to apply to public sector entities (which includes a local government)[113] and to public officials (which includes an officer or employee of a public sector entity)[114] in performing their official functions.[115] The purpose of a code of conduct is to provide standards of conduct for, relevantly, public sector entities consistent with the ethics principles and values.[116]
  1. [95]
    Section 24(b) of the Public Sector Ethics Act 1994 provides that it is the intention of Parliament that any disciplinary action for a contravention of an approved code of conduct by a public official should be dealt with, if the official is a local government employee, under the local government legislation applying to the local government.
  1. [96]
    The Code is an approved code of conduct for the purposes of the Public Sector Ethics Act 1994.[117]
  1. [97]
    Section 3.1 of the Code relevantly provides:

3.1  Acting within the law

As an employee of Council, you are expected to comply with all legislation and other statutory obligations relevant to Council. Importantly, Council’s local laws … policies, delegations, management directives, standard operating procedures and health and safety directives apply to you and can be found on Council’s intranet.

  1. [98]
    Section 4.1 of the Code relevantly provides:

4.1  Diligence, care and attention

Council aims to conduct its business with integrity, honesty and fairness and to achieve the highest standards in service delivery. You contribute to this aim by carrying out your duties honestly, responsibly, in a conscientious and accountable manner and to the best of your ability.

This includes:

  • behaving and acting in accordance with our Corporate values and the principles in this Code;

  • conducting yourself in a way so others gain confidence and trust in the way Council does business;
  1. [99]
    An issue was raised as to whether Mr Welsh had, in respect of the property, complied with all relevant laws, namely, whether Mr Welsh had obtained the relevant approvals in relation to any work that had been carried out on the property. Given the application of s 3.1 and s 4.1 of the Code to Mr Welsh, Mr Ball's behaviour was reasonable.
  1. [100]
    More generally, my opinion is that Mr Ball's behaviour towards Mr Welsh was reasonable. Mr Ball's evidence was that after he received the results of Ms Shafto's preliminary investigation, he referred the matter to People and Culture.[118] This was because, on Mr Ball's evidence, the preliminary investigation indicated there was reasonable cause to suspect that:
  • Mr Welsh had carried out unapproved works at the property;
  • the '… associated development offences had not been regularised';
  • Mr Welsh had improperly accessed files in relation to the property from the Council's document management system; and
  • breaches of the Code had occurred.[119]
  1. [101]
    In August 2018, Mr Welsh was a Senior Building Investigation Officer in the Development Assessment Branch. Because Mr Welsh was an employee of the Council bound by the Code, he was expected to comply with all legislation and other statutory obligations relevant to the Council, and to conduct himself in a way so others gain confidence and trust in the way the Council does business.
  1. [102]
    Mr Neylon raised with Mr Denman the issue of unapproved works at the property owned by Mr Welsh. Mr Demnan entered the property to inspect it on 22 August 2018. On the evidence before me, Mr Neylon's and Mr Denman's behaviour towards Mr Welsh was generally reasonable behaviour. Their behaviour directly concerned an employee of the Council who may not have been complying with all legislation and other statutory obligations relevant to the Council, such as the Sustainable Planning Act 2009, the Planning Act 2016 or the Building Act 1975.
  1. [103]
    Mr Ball's action in asking Ms Shafto to conduct a preliminary investigation concerning Mr Welsh was reasonable behaviour towards Mr Welsh. Mr Ball became the Development Assessment Manager in January 2018. Mr Ball's evidence was that he did not know of any issues concerning the property until he was informed of the issues by Mr Denman on 23 August 2018, which was after the date Mr Denman had entered the property and conducted an inspection. The issue raised was that there was an outstanding approval in respect of the property. It was therefore reasonable for Mr Ball to ask Ms Shafto to conduct the preliminary investigation. It was from that preliminary investigation that Mr Ball took the next action towards Mr Welsh and referred the matter to People and Culture. Human Resources was not Mr Ball's area of responsibility.
  1. [104]
    For these reasons, the action taken by Mr Ball toward Mr Welsh was reasonable.

The investigation

  1. [105]
    As best as I can make out, Mr Welsh's principal complaint about Mr Watson's action, to instruct Ashdale to conduct the investigation, was that it was to punish Mr Welsh in relation to the non-compliance issues concerning the property, because of the failure of the Council:
  • to follow its own planning and building procedures about contraventions of the Sustainable Planning Act 2009; and
  • to commence proceedings against Mr Welsh for contravening that legislation within the relevant limitation period.[120]
  1. [106]
    Mr Welsh also contends that the process by which Ashdale was selected and briefed to conduct the investigation was unreasonable.[121]

The alleged punishment of Mr Welsh because of the Council's failure to follow its own procedures and prosecute him within the limitation period

  1. [107]
    After Mr Ball referred the matter to People and Culture, Mr Watson took carriage of the matter[122] and was involved in who would investigate the allegations against Mr Welsh and how that was to be done.[123]
  1. [108]
    Mr Watson's evidence was that further investigation of the allegations was delayed as a result of a grievance lodged by Mr Welsh, a separate disciplinary process with Mr Welsh, medical leave taken by Mr Welsh, an application by Mr Welsh seeking access to emails between certain persons in Development Assessment and People and Culture, and an earlier (separate) application to the Commission by Mr Welsh for an order to stop bullying.[124]
  1. [109]
    On 5 April 2019, Mr Strachan referred the unapproved works allegation and the improper accessing of files allegation to the Crime and Corruption Commission ('the CCC').[125]
  1. [110]
    By letter dated 16 April 2019, Mr Strachan informed Mr Welsh that an independent investigation would be undertaken in relation to the unapproved works allegation and the improper accessing of files allegation. Mr Welsh was advised that in respect of the unapproved works allegation, the Council noted that planning enquiries were undertaken by it during 2018 and that as a consequence of those preliminary enquiries, which included the attendance of Council officers at the property, the Council had cause to believe that the unapproved works, the subject of that allegation, included:
  • earthworks cut to the rear of the property, approximately 150m² in dimension;
  • a retaining wall constructed to retain the earth that had been cut;
  • plumbing work; and
  • the demolition of a carport at the front of the property.[126]
  1. [111]
    In the same correspondence, Mr Strachan informed Mr Welsh that the Council's planning enquiries also identified that on various dates up to 28 August 2018, Mr Welsh may have engaged in the improper accessing of files, a matter which had been referred to the CCC.[127]
  1. [112]
    In May 2019, the CCC advised the Council that the improper accessing of files allegation would, if proven, meet the definition of 'corrupt conduct' under the Crime and Corruption Act 2009 and that the matter was to be investigated by the Council.[128]
  1. [113]
    By letter dated 4 September 2019 from Mr Strachan, permission was sought from Mr Welsh for an authorised person to enter the property pursuant to s 129 of the LG Act.[129] Mr Strachan informed Mr Welsh that the purpose of entering the property was for the Council to carry out investigations to determine whether an offence or offences had taken place in contravention of the Planning Act 2016, the Building Act 1975 or the Plumbing and Drainage Act 2002. Mr Strachan also advised that the Council had appointed an independent building certifier to assist in conducting the investigations and that the independent building certifier would accompany the authorised person in accordance with s 135(2)(e) of the LG Act.[130]
  1. [114]
    Mr Welsh's evidence was that:
  • he responded to that letter from Mr Strachan by letter dated 26 September 2019, requesting further information as to what the Council was seeking to look at on his private property; and
  • the request for entry was not denied.[131]
  1. [115]
    By further letter dated 15 November 2019, Mr Strachan again sought Mr Welsh's permission to enter the property for the purposes of the inspection the Council wanted to conduct.[132]
  1. [116]
    Mr Welsh's evidence was that:
  • by letter dated 25 November 2019, he again requested further information relating to the inspection and the details of what the Council wanted to look at on his private property; and
  • again, the request for entry was not denied.[133]
  1. [117]
    On 26 February 2020, Mr Welsh was informed that a workplace investigation was to take place.[134] Mr Watson engaged Ashdale[135] to conduct the investigation in relation to the allegations.[136] Mr Welsh was interviewed on 4 March 2020.[137] Other employees of the Council, were interviewed as part of that investigation.[138] The Council provided the brief to Ashdale for it to conduct this investigation and paid Ashdale for the investigation.[139]
  1. [118]
    Ashdale produced a report in April 2020 which indicated there was sufficient evidence to substantiate the two allegations.[140]
  1. [119]
    It was Mr Watson's decision for the matter to be referred to Ashdale for investigation. Before that occurred, by letter dated 5 April 2019, Mr Strachan had referred the unapproved works allegation and the improper accessing of files allegation to the CCC. Mr Watson's evidence was that the CCC only found that the improper accessing of files allegation was capable of amounting to corrupt conduct within the meaning of the Crime and Corruption Act 2009 and that the matter had been referred back to the Council to investigate.[141]
  1. [120]
    Because of the application of s 3.1 and s 4.1 of the Code to Mr Welsh and given the referral back to the Council by the CCC about the improper accessing of files allegation, it was reasonable for Mr Watson to engage Ashdale to conduct an investigation in relation to the unapproved works allegation and the improper accessing of files allegation.

The process by which Ashdale was selected and briefed to conduct the investigation

  1. [121]
    Mr Welsh submits that there is a sound basis not to conclude that Mr Watson's action to instruct Ashdale to conduct the investigation was reasonable. This is because:
  • he was not consulted about his views on who should be commissioned to investigate the allegations made against him, and he was not consulted about the content of the brief to Ashdale or provided with a copy of the brief;[142]
  • he was not aware of the nature of the material or the instructions that may have been given to the investigators;[143] and
  • he has only been provided with a redacted version of the Ashdale report and the report does not contain any direct statements of witnesses, only summaries of what was allegedly said with some quotes attributed to those who it was claimed made the comments.[144]
  1. [122]
    In my view, the management action around the selection of Ashdale as the investigator, and the way the report was commissioned by the Council, was reasonable.
  1. [123]
    For the reasons given above, the action undertaken by Mr Watson after taking carriage of the matter from Mr Ball, and organising for Ashdale to conduct the investigation was reasonable action. The fact that Mr Welsh was not consulted about the identity of the investigator does not render that action unreasonable. It is a common occurrence that employers will appoint an investigator without reference to the employee under investigation. What is critical is that the investigator acts impartially and in a fair way. There is no evidence before me that suggests Mr Watson selected Ashdale so that the Council could get a predetermined outcome from the investigation.
  1. [124]
    It would have been prudent for Mr Watson to provide to Mr Welsh, prior to Ashdale commencing its investigation, the brief Mr Watson provided to Ashdale (subject to any proper matters of confidentiality being protected). This did not occur, however, on the authority referred to above (at paragraph [39] of these reasons) about what constitutes reasonable management action carried out in a reasonable way, that failure does not render Mr Watson's actions overall to be unreasonable. While it may have been more reasonable or more acceptable for that brief to be provided to Mr Welsh, management action does not need to be perfect. In my view, the critical issue is whether or not Mr Welsh had a reasonable opportunity to respond to any allegations made directly to him, as part of a disciplinary procedure, arising out of any conclusions drawn by his employer from the Ashdale report. I deal with this specific question later in these reasons.
  1. [125]
    In the cross-examination of Mr Strachan, the qualifications of the investigators from Ashdale were raised.[145] The matters the Ashdale investigators had been asked to investigate were not specifically whether there had been a contravention of the Planning Act 2016 or the Building Act 1975. The investigators from Ashdale were asked to investigate whether Mr Welsh:
  • undertook works at the property without the necessary local development and planning permits, including undertaking earthworks to the rear of the property, constructing a retaining wall to retain the earth that had been cut, and/or demolishing the carport at the front of the property; and
  • had improperly accessed Council records relating to the property on particular dates.[146]
  1. [126]
    The investigation of those matters did not require experience or expertise in relation to the relevant planning and development legislation in Queensland. Rather, they were, in my opinion, clear questions of fact.
  1. [127]
    For the above reasons, I conclude that this impugned behaviour of Mr Watson was reasonable.

The disciplinary procedure

  1. [128]
    Mr Welsh makes a number of criticisms of the discipline procedure, namely:
  • disciplinary action was being undertaken in relation to matters which had never been pursued under the Sustainable Planning Act 2009;[147]
  • matters were not raised with him in the same way that a non-employee resident of the Council would or could have expected;[148]
  • disciplinary action was carried out in a way which ignored the usual requirements of natural justice which resulted in him not being treated fairly;[149]
  • it was unreasonable for Mr Strachan to rely upon the Ashdale report because of the standard of evidence contained in it;[150]
  • the standard of evidence referred to in Briginshaw,[151] should have been applied but was not; and[152]
  • he was never given a complete copy of the Ashdale report.[153]

Disciplinary action was undertaken in relation to matters which had never been pursued under the Sustainable Planning Act 2009 and which was not raised in the same way to that of a non-employee resident

  1. [129]
    For the same reasons I give above, the action taken by Mr Strachan, upon receiving the Ashdale report, to commence the disciplinary procedure against Mr Welsh, was reasonable behaviour.
  1. [130]
    In summary, this was because Mr Welsh is an employee of the Council, bound by s 3.1 and s 4.1 of the Code. In relation to the unapproved works allegation, if there was a reasonable belief that Mr Welsh, in his private capacity, had not complied with a local government act, it was reasonable for Mr Strachan to commence a disciplinary procedure against him.
  1. [131]
    Similarly, in relation to the improper accessing of files allegation, it was reasonable for Mr Strachan to commence a disciplinary procedure against Mr Welsh to ascertain if such conduct had occurred and whether it was unsatisfactory or unacceptable workplace conduct.

Disciplinary action was carried out in a way which ignored the usual requirements of natural justice with the result that Mr Welsh was not treated fairly

  1. [132]
    By letter dated 5 August 2020, Mr Strachan invited Mr Welsh to show cause as to why disciplinary action should not be taken against him in relation to the two allegations.
  1. [133]
    Both allegations are lengthy. It is necessary to set them out in detail.
  1. [134]
    The first allegation was:

Allegation 1: On 25 June 2015, you acquired the Slacks Creek Property. Between 17 May 2016 and 2 July 2016, you demolished a carport and commenced earthworks at the rear of the Slacks Creek Property. This is evidenced by aerial photographs taken on those dates, which show the carport and no earthworks on 17 May 2016 and earthworks cut to the rear of the property and the carport demolished on 2 July 2016 (see Attachment 3).

The earthworks and demolition of the carport amounted to assessable development and therefore you were required to have an effective development permit for the works under section 578 of the Sustainable Planning Act 2009 (Qld) (SPA). You did not hold a permit at the time the works were undertaken, and you therefore committed an offence under the legislation.

On 19 July 2016, a customer complaint was made in relation to the unapproved works and the requirement for a permit was discussed with you by Mr Paul Neylon of Council on at least three occasions, being on or around 21 July 2016, 28 October 2016 and 27 or 28 June 2018. Despite assurances that you would obtain the appropriate permit, a building certification was not obtained until 1 November 2018. A final Building Approval was provided to Council on 14 May 2019.

At the time you undertook the works at the Slacks Creek Property, you were employed as a Senior Building Investigation Officer with Council and your role was to enforce compliance with local planning and building and development laws. You were a fully licensed building certifier and as an experienced officer operating in the field, you would have been fully aware of the regulatory regime which governs development work and that you were committing an offence.

Despite being given ample opportunity to regularise the development offences in relation to the unapproved works, your continued failure to do so was not in accordance with Council's Corporate Values and the principles set out in the Code of Conduct, in particular the principle in relation to integrity, and your conduct could impact on the public's confidence and trust in the way Council does business.

It is also noted that you recently made a complaint of trespass to the Queensland Police Service when Council officers attended at the Slacks Creek Property to further investigate the allegations in relation to the works, despite you being an authorised person under the LG Act and fully aware of the powers of entry that authorised persons have under that legislation.

Integrity and commitment to the system of government are fundamental principles set out in the Code of Conduct, which sets out the minimum standards of conduct and behaviour for all employees in the course of their employment with Council. The Code of Conduct specifically states that it ''may also apply to certain activities or behaviours undertaken by employees outside of the workplace where it may impact upon the image and reputation and activities of Council." Ethical and legal behaviour of local government employees is also a fundamental local government principle.

For these reasons, I consider the alleged failures to comply with SPA over an extended period, despite having been encouraged to regularise the offences, to be unsatisfactory or unacceptable workplace conduct.[154]

  1. [135]
    The second allegation was:

Allegation 2: In addition to the unapproved works, User Access Records for Council's DMS evidence that your password was used to access the following files relating to the Slacks Creek Property:

20 June 2016

1.17pm File no. 3423438 - as constructed drainage plans for the dwelling

5 July 2016

1.14pm File no. 3423428 - as constructed drainage plans for the dwelling

1.15pm File no. 3423431 - as constructed drainage plans for the dwelling

1.16pm File no. 3423435 - as constructed drainage plans for the dwelling

28 August 2018

9.19am File no. 10719682 - delegated report

1.16pm File no. 10719712 - approved plan of development

2.26pm File no. 10721413 - decision notice associated with a development approval

This access is evidenced by screenshots from the DMS file history (see Attachment 4).

In your Interview with Bryan Cook from Ashdale, you denied that you accessed those files and suggested that anyone could have done it, because you often left your computer unattended while still logged on to the system. However, in the absence of a more plausible explanation, Ashdale have concluded that it is more likely that you accessed the records for personal reasons (such as to avoid the associated fees for the plans), rather than another unknown staff member with no obvious reason for doing so. Other officers have stated that it is not common practice for Council employees to use other employees' computers.

The seriousness of the allegations relating to improper access to records is evidenced by the fact the Crime and Corruption Commission has advised that such allegations would meet the definition of "corrupt conduct" if proven and referred the matter back to Council for investigation.

Even if your position regarding access to these files was accepted, it is noted that you had a specific responsibility to maintain the integrity and security of your computer access in accordance with the Management Directive: Security of the Council's Information System (Attachment 5). That Management Directive requires that:

All users are required to maintain the integrity of their own individual access, including:

(a) the management of login credentials including non-disclosure, regular changes of password, strong/robust password formats; and

(b) the security of their device, including locking or logging out when not in use.

In relation to access to the files by someone else, you suggested to Ashdale that anyone could have done it because you often left your computer unattended while still logged into the system. Such conduct is clearly in breach of the directive.

For these reasons, I consider the alleged access to the files in relation to the Slacks Creek Property and/or your failure to maintain the integrity of your access to the DMS to be unsatisfactory or unacceptable workplace conduct.[155]

  1. [136]
    By letter dated 17 September 2020, Mr Welsh responded in writing to the show cause.[156]
  1. [137]
    By the notice, dated 22 October 2020, Mr Strachan informed Mr Welsh that:
  • he was satisfied Mr Welsh had engaged in unsatisfactory or unacceptable workplace conduct that was not in accordance with the Council's corporate values and breached the provisions of the Code, in particular:

carrying out the unapproved works, and Mr Welsh's ongoing failure to regularise the associated development offences, which Mr Strachan found breached s 3.1 and s 4.1 of the Code; and

the unauthorised access to data management system files which breached s 1.3, s 2.1, s 3.5 and s 4.1 of the Code;[157] and

  • he was giving serious consideration to imposing, pursuant to the Local Government Regulation 2012 ('the Regulation'), the disciplinary action of dismissal, however, he gave Mr Welsh seven days to show cause as to why the proposed disciplinary penalty should not be imposed.[158]
  1. [138]
    By email dated 2 November 2020, the Queensland Services, Industrial Union of Employees ('the Union') requested, on Mr Welsh's behalf, an extension of time to respond to the notice. The Council gave Mr Welsh until 20 November 2020 to respond to the notice.[159]
  1. [139]
    By letter dated 20 November 2020, Mr Welsh responded to the notice.[160]
  1. [140]
    The LG Act deals with disciplinary matters for local government employees. Section 197 provides:

197 Disciplinary action against local government employees

  1. (1)
     The chief executive officer may take disciplinary action against a local government employee.
  1. (2)
     A regulation may prescribe-
  1. (a)
     when disciplinary action may be taken against a local government employee; and
  1. (b)
     the types of disciplinary action that may be taken against a local government employee.
  1. [141]
    Chapter 8, pt 3, div 1 of the Regulation relevantly provides:

278 What div 1 is about

This division prescribes, for section 197(2) of the Act, when the chief executive officer may take, and the types of, disciplinary action.

279 When disciplinary action may be taken

The chief executive officer may take disciplinary action against a local government employee if the chief executive officer is satisfied the employee has-

  1. (a)
     failed to perform their responsibilities under the Act; or
  1. (b)
     failed to perform a responsibility under the Act in accordance with the local government principles; or
  1. (c)
     taken action under the Act in a way that is not consistent with the local government principles.

280 Types of disciplinary action

  1. (1)
     The disciplinary action taken by the chief executive officer against a local government employee may be 1 or more of the following-
  1. (a)
     dismissal;
  1. (b)
     demotion, including a reduction in remuneration;

Examples of demotion of a local government employee-

 a reduction in the classification level of the local government employee’s employment and a corresponding change in the employee’s duties

 a reduction in the local government employee’s level of remuneration within the classification level of the employee’s employment

  1. (c)
     a deduction from salary or wages of an amount of not more than 2 penalty units;
  1. (d)
     a written reprimand or warning.

Note-

If the disciplinary action to be taken is dismissal, the dismissal must comply with the requirements that apply in relation to the local government employee under the Industrial Relations Act 1999, chapter 2A or 3.

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
     Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee-
  1. (a)
     notice of the following-
  1. (i)
     the disciplinary action to be taken;
  1. (ii)
     the grounds on which the disciplinary action is taken;
  1. (iii)
     the particulars of conduct claimed to support the grounds; and
  1. (b)
     a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [142]
    The dictionary to the LG Act provides that the phrase 'local government principles' means the principles expressed in the form of outcomes set out in s 4(2) of the LG Act. That section provides:
  1. (2)
     The local government principles are-
  1. (a)
     transparent and effective processes, and decision-making in the public interest; and
  1. (b)
     sustainable development and management of assets and infrastructure, and delivery of effective services; and
  1. (c)
     democratic representation, social inclusion and meaningful community engagement; and
  1. (d)
     good governance of, and by, local government; and
  1. (e)
     ethical and legal behaviour of councillors, local government employees and councillor advisors.
  1. [143]
    Mr Strachan's evidence-in-chief was that following receipt of the Ashdale report, he gave detailed consideration as to whether to accept the findings made. By his letter dated 5 August 2020, he wrote to Mr Welsh inviting him to show cause as to why action should not be taken against him in relation to the unapproved works allegation and the improper access to files allegation.[161] That letter fairly set out:
  • the relevant provisions of the LG Act and Regulation;
  • the relevant provisions of the Code (and a full copy of the Code was attached);
  • the particular conduct alleged against Mr Welsh in relation to the unapproved works allegation (set out earlier in these reasons) and the evidence upon which Mr Strachan based that allegation, namely, the aerial photographs of the property between 17 May 2016 and 30 May 2018;[162] and
  • the particular conduct alleged against Mr Welsh in relation to the improper access to files allegation (set out earlier in these reasons) and the evidence upon which Mr Strachan based that allegation, namely, in respect of each file allegedly accessed, the relevant user history of the file and Mr Welsh's assertion that someone else could have accessed the files because he often left his computer unattended.[163]
  1. [144]
    Mr Welsh was then invited to show cause as to why disciplinary action should not be taken against him. Mr Welsh was also informed of the types of disciplinary action that may be taken against him under the Regulation.
  1. [145]
    For these reasons, my view is that Mr Strachan's behaviour, in respect of this aspect of the disciplinary procedure, was reasonable.

The standard of the evidence contained in the Ashdale report

  1. [146]
    By this criticism, I infer that Mr Welsh contends that it was unreasonable behaviour by Mr Strachan to rely upon the Ashdale report in forming his view as to whether the unapproved works allegation and the improper accessing of files allegation were proven.
  1. [147]
    The Ashdale investigators merely reported that the two allegations were capable of substantiation. Mr Strachan, while clearly agreeing with the conclusions of the Ashdale investigators, came to his own conclusions about the allegations.[164]
  1. [148]
    Mr Watson had engaged Ashdale to undertake the investigation. Once that report was provided to Mr Strachan, it was reasonable for Mr Strachan to consider the Ashdale report in coming to the conclusions he had to come to, on his own, as to whether the two allegations were substantiated.
  1. [149]
    As I read the show cause from Mr Strachan to Mr Welsh dated 5 August 2020, as set out above, Mr Strachan gave significant particulars of the two allegations and provided original evidence upon which he was relying in asking Mr Welsh to show cause as to whether those two allegations should be substantiated.
  1. [150]
    In my view, there is nothing unreasonable about Mr Strachan's behaviour.

The standard of evidence referred to in Briginshaw should have been applied

  1. [151]
    The principle in Briginshaw[165] does not go to the standard of proof but to the standard of evidence that is required. It is a principle that applies where serious allegations have been made against the person who is the subject of the investigation. In Neat Holdings v Karajan Holdings Pty Ltd,[166] Mason CJ, Brennan, Deane and Gaudron JJ relevantly stated:

The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary “where so serious a matter as fraud is to be found”. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw:

The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved …

  1. [152]
    This issue was a matter for Mr Strachan to consider as the decision maker. The evidence referred to in the show cause was the aerial photographs of the property (in relation to the unapproved works allegation) and the relevant user history of the files (in relation to the improper accessing of files allegation) and Mr Welsh's assertion to the Ashdale investigator that someone else could have accessed the files because he often left his computer unattended.
  1. [153]
    By his letter dated 22 October 2020, Mr Strachan provided Mr Welsh with the notice. Mr Strachan found:
  • by reference to the evidence listed, including the aerial photographs,[167] the unapproved works allegation was proven; and
  • by reference to the evidence listed, including the relevant user history file and relevance of those files to the property,[168] the improper access to files allegation were proven.
  1. [154]
    Having regard to all the evidence referred to by Mr Strachan in coming to his conclusions about the substantiation of the allegations, Mr Strachan referred to evidence that was cogent.

Not being given access to a complete copy of the Ashdale report

  1. [155]
    Mr Welsh contends that he has never been given a complete copy of the Ashdale report and all the attachments to that report. Mr Welsh submits that he complained about the redactions and the version of the Ashdale report he received through the Union and that he unsuccessfully sought the provision of the entire report which was a denial to him of natural justice.[169] In respect of this aspect of his case, Mr Welsh refers to the decision of A. Lyons J in Vega v Hoyle & Ors[170] ('Vega') as authority for the proposition that there will be a breach of the rules of natural justice when an employee, the subject of an investigation, is only provided with extracts, rather than the entire content, of the interviews conducted.[171]
  1. [156]
    In Vega, a doctor employed by a public Hospital and Health Service, was the subject of a health service investigation pursuant to the Hospital and Health Boards Act 2011. The investigation concerned clinical incidents and whether the doctor had complied with certain policies and procedures. Interviews were conducted by the investigators and a report was delivered to the Acting DirectorGeneral of Queensland Health. By way of an application for statutory review, the doctor argued that the report was produced in breach of natural justice on the basis that the doctor's requests for full records of the interviews of the 58 witnesses were denied despite a summary of the evidence of the witnesses being provided in draft reports provided to the doctor.[172] The Court held that given the significance of the interviews, it was insufficient to provide extracts from statements rather than the entire content of the interviews and, for that reason, there had been a breach of the rules of natural justice.[173]
  1. [157]
    It is true that no version of the Ashdale report was provided to Mr Welsh with Mr Strachan's letter dated 5 August 2020 which was the show cause. However, for the reasons I give below, in the circumstances of this particular case, that failure was not unreasonable.
  1. [158]
    When a statute confers power to destroy or prejudice a person's rights or interests, the principles of natural justice regulate the exercise of that power. All statutes are to be construed against a background of common law notions of justice and fairness. Thus, when a statute does not expressly require that the principles of natural justice must be observed, a court construes the statute on the footing that the justice of the common law will supply the omission of the legislature. The observance of the principles of natural justice is a condition attached to such a statutory power and governs its exercise.[174]
  1. [159]
    Other than that provided in s 283 of the Regulation, the LG Act and the Regulation are silent as to whether the principles of natural justice have to be observed when a chief executive of a local government disciplines an employee. For the reasons given above, in disciplining an employee, the chief executive must observe the principles of natural justice.
  1. [160]
    As to the content of natural justice, what is appropriate depends on the circumstances of the case which will include, amongst other things, the nature of the enquiry, the subject matter and the rules under which the decision maker is acting. Although not determinative, the existence of express promises or practices in relation to decisions are to be regarded as part of the relevant circumstances of the case and relevant to the determination of what is appropriate.[175] The ultimate question is whether there has been unfairness and not whether an expectation has been disappointed.[176]
  1. [161]
    The Council's Management Directive entitled 'Conduct and Discipline Procedure' relevantly provides that the show cause process '… enables the employee to respond to Council's contentions and proposed disciplinary action (if applicable) in accordance with natural justice principles.'[177] That document goes on to provide that the show cause notice is to outline the specific allegations, the grounds on which the employee may be liable for disciplinary action, '… the supporting evidence' and what disciplinary action/s can be taken.[178]
  1. [162]
    The fundamental principle is that the right to be heard would ordinarily require the party affected to be informed of the nature and content of adverse material; and the content of natural justice is fact specific and an examination of the fairness of the process in a practical sense must be examined.[179]
  1. [163]
    Thus, where an investigation report has been prepared to be relied upon as part of a disciplinary process being taken against an employee, it may be a breach of the principles of natural justice not to provide the employee with the investigation report and all relevant annexures. This is because the employee may be deprived of making submissions about the credit of any witnesses who gave evidence to the investigator or developing any critique about the conclusions of the investigator, such that practical injustice is caused to the employee.[180]
  1. [164]
    In his letter to Mr Welsh dated 5 August 2020, Mr Strachan advised Mr Welsh that '… as a result of Ashdale's findings, Council considers that you have engaged in unsatisfactory or unacceptable workplace conduct.'[181]
  1. [165]
    Mr Strachan's evidence was that it was his understanding that the Council gave Mr Welsh a copy of the redacted Ashdale report.[182] Mr Welsh's uncontradicted submission is that sections of the Ashdale report were provided to him on 11 December 2020 following a request made by the Union,[183] and that despite the Union's request, the 10 attachments to the Ashdale report have never been provided to him.[184]
  1. [166]
    Mr Welsh, by letter dated 17 September 2020, did provide a detailed response to the show cause.[185] In broad terms, Mr Welsh:
  • in relation to the unapproved works allegation:

stated he had not received an enforcement notice or attended any court proceedings and therefore the allegation had not been substantiated and he had not been found guilty in court; and

claimed that Mr Strachan was taking a private matter into the workplace, had not provided any evidence of unapproved works and had exceeded the timeframes, which were clearly set out in legislation, and that Mr Strachan had continued his ongoing harassment for a period in excess of two years;[186] and

  • in relation to the improper accessing of files allegation:

requested to be provided with the findings of the CCC and stated that it was most inappropriate that Mr Strachan was reinvestigating the allegation after the matter had been sent to the CCC and that there may be a perception of further bullying if Mr Strachan was reinvestigating the allegations;

denied the allegation that he accessed the files and stated that he was not sure how any person accessed the files (by hacking into his computer or by its unauthorised use); and

stated that if the Council had ensured appropriate measures and controls were in place to reduce the risk of unauthorised activity, then the unauthorised access to his computer would not have occurred.[187]

  1. [167]
    Further, Mr Welsh stated, in relation to both allegations, that Mr Strachan's correspondence was lacking critical information that would allow him to respond to the serious allegations and, without that evidence, he was unable to respond.[188] I am not persuaded that there is merit in those responses by Mr Welsh. There are a number of reasons for this.
  1. [168]
    First, in responding to the first allegation about earthworks, Mr Welsh wanted:
  • information about the amount of soil that had allegedly been cut;
  • an indication on the photograph of the location of the cut, including the evidence that Mr Strachan was relying upon to calculate the amount of soil, for example, a survey; and
  • provision of the legislation that he was allegedly in breach of and how that related to the evidence.[189]
  1. [169]
    Similarly, in responding to the allegation about the demolition of the carport, Mr Welsh wanted details of the 'carport removal', and evidence of a 'carport', including evidence that the Council was relying upon to conclude that it was a carport and that it was removed. Mr Welsh also wanted the legislation that he was allegedly in breach of and how that related to the evidence.[190]
  1. [170]
    In relation to the improper accessing of files allegation, Mr Welsh wanted:
  • the provision or training provided that regulates '… specific user access to DMS that you alleged that I am in breach?';
  • how long it was alleged he left his computer unattended while still logged onto the system; and
  • evidence that would substantiate whether or not his computers were hacked by a person or whether there was unauthorised access due to the length of time he allegedly left his computer unattended while still logged onto the system.[191]
  1. [171]
    Having regard to the significant detail in respect of which both allegations were set out by the Council, which referred to the specific evidence relied upon by the Council in respect of each allegation, it seems to me that Mr Welsh had enough information to respond to the particular allegations made against him.
  1. [172]
    In relation to the unapproved works allegation, he either demolished the carport and engaged in earthworks to the rear of the property, without an effective development permit, and did not take steps, for a period of time, to regularise that work, or he did not. Mr Strachan provided significant particulars of the allegation and the evidence upon which the Council was relying, being the aerial photographs.
  1. [173]
    In relation to the improper accessing of files allegation, he either accessed the files on the particular dates alleged in Mr Strachan's letter dated 5 August 2020, without proper authorisation, or he did not. In the alternative, either he failed to maintain the security of his computer, or he did not. Again, Mr Strachan provided significant particulars of the allegation and the evidence upon which the Council was relying, being the file user access records.
  1. [174]
    It may have been otherwise if Mr Strachan's letter dated 5 August 2020 did not provide the detailed particulars of both allegations or the evidence relied upon by the Council was not included with this correspondence. However, that was not the case.
  1. [175]
    For these reasons, I cannot form the view that the failure of the Council to provide Mr Welsh with a full copy of the Ashdale report, including all attachments, meant that Mr Welsh lost the practical opportunity to advance any case he wished to advance in his response. Similarly, the 'critical information' Mr Welsh stated that he did not have, did not mean he lost the practical opportunity to advance any case he wished to advance in response to the allegations.
  1. [176]
    For the reasons given above:
  • Mr Welsh had every reasonable opportunity to respond to the specific allegations and the evidence relied upon by Mr Strachan, such that Mr Strachan's behaviour, in the disciplinary process he adopted, was reasonable; and
  • on the basis of the clearly particularised allegations made against Mr Welsh, the evidence provided in his letter to Mr Welsh dated 5 August 2020 and Mr Welsh's response dated 17 September 2020, it was open to Mr Strachan to come to the conclusions he came to about the two allegations being substantiated.
  1. [177]
    As part of his letter dated 22 October 2020, Mr Strachan also provided:
  • the original plan of the property showing the location of the original carport;[192]
  • the approved plan for the development of the property depicting the natural ground level and finished ground level of the property before and after the earthworks;[193] and
  • photographs taken of the property during the inspection of the property on 22 August 2018 which Mr Strachan stated showed the location of the carport that had been demolished at the front of the property, the earthworks to the rear of the property and the volume of the cut.[194]
  1. [178]
    It is unclear to me if this material was provided to Mr Welsh during or proximate to the show cause process commenced by Mr Strachan's letter dated 5 August 2020. If that material had not been provided to Mr Welsh prior to Mr Strachan's decision in his letter dated 22 October 2020, then that failure by Mr Strachan to provide that material prior to coming to his conclusion about the substantiation of the two allegations was not reasonable behaviour or reasonable management action.
  1. [179]
    Mr Strachan then advised Mr Welsh that he was giving serious consideration to imposing the disciplinary action of dismissal and afforded Mr Welsh seven working days to provide a response as to why he should not be dismissed. In doing so, Mr Strachan set out the particular matters that he would consider, namely:
  • the seriousness of the breaches of the Code;
  • Mr Welsh's overall work record, including any previous disciplinary action;
  • any explanation given by Mr Welsh;
  • any extenuating circumstances that may have had a bearing on the breach;
  • the degree of risk to the health and safety of staff, clients and, or in the alternative, members of the public;
  • the impact of the breach on Mr Welsh's ability to perform the duties of his position; and
  • the impact of the breach on the Council's trust and confidence in Mr Welsh as an employee.[195]
  1. [180]
    Mr Welsh also makes other claims that he was the subject of unreasonable behaviour because at various times he received correspondence referring to legislation which had been repealed six years earlier, contained references to non-existent provisions of legislation and contained misstatements of the provisions of legislation.[196] However, in relation to those claims, Mr Welsh has not been able to point to any circumstance where that behaviour has resulted in him being disadvantaged or unfairly treated. It seems to me, having regard to Mr Welsh's written response to the show cause and his written response to the notice, that Mr Welsh did not suffer any disadvantage from the incorrect legislative references.
  1. [181]
    For the above reasons, I conclude that in respect of the disciplinary procedure, the behaviour of Mr Strachan was reasonable.
  1. [182]
    In cross-examination it was put to Mr Watson that the decision to suspend Mr Welsh as of 15 January 2021 was a decision taken to ramp up pressure on Mr Welsh.[197] Mr Watson denied this on the basis that Mr Welsh still had access to particular files which was a risk to the community and to the Council.[198] It was Mr Strachan who made the decision to suspend Mr Welsh.[199] Although not expressly raised by Mr Welsh in his submissions as evidence of repeated, unreasonable behaviour or unreasonable management action,[200] it seems to me that if Mr Welsh, because of his potential access to files, posed a risk to the community and to the Council, any consideration of his suspension should have occurred at a considerably earlier time.
  1. [183]
    There is no evidence before me upon which I can be satisfied that an individual or group of individuals have repeatedly behaved unreasonably towards Mr Welsh. While the failure of Mr Denman to provide the relevant information to Mr Welsh, pursuant to s 132(5) of the LG Act and Mr Denman's failure to otherwise act in accordance with the BCP in relation to him contacting Mr Welsh about his entry onto the property and seeking his prior permission to take photographs was not reasonable, there is no evidence of repeated, unreasonable behaviour by a group of individuals towards Mr Welsh. The evidence, overall, does not point to repeated, unreasonable behaviour by Mr Neylon, Mr Denman, Mr Ball, Mr Watson or Mr Strachan.
  1. [184]
    On the evidence before me, the disciplinary procedure is now at the point where Mr Strachan is about to make his decision about what disciplinary action, if any, he should take against Mr Welsh. In Mr Strachan's letter to Mr Welsh dated 15 January 2021, he stated:

In accordance with Council's undertaking during the mention on 2 December 2020, I confirm that no final decision on any disciplinary penalty to be imposed will be made until your application has been heard and determined by the QIRC. Council will also take into consideration any findings from the QIRC that relate to this disciplinary process.[201]

Given the complexity and delay in finalising this matter, I have determined that no final decision on the disciplinary penalty to be imposed will be made until:

  1. (a)
    you have had a final opportunity to respond to this correspondence and provide details of any other reasons why the proposed disciplinary action of dismissal should not be taken against you; and
  1. (b)
    your application for an order to stop bullying has been heard and decided by the QIRC.[202]
  1. [185]
    Mr Strachan then set out that Mr Welsh's response should be provided within 10 working days from the date of the letter and would be considered together with the same matters as previously advised to Mr Welsh as set out in paragraph [179] of these reasons. I am uncertain if Mr Welsh has made such a response. Obviously, at this point, Mr Welsh could not have made any response regarding any findings from this decision which could be relied upon by Mr Strachan in finalising the disciplinary procedure.
  1. [186]
    Whether or not Mr Welsh should be dismissed is a matter for Mr Strachan, or the properly authorised delegate of the chief executive officer of the Council, upon a proper and reasonable consideration of all the relevant evidence, including any response Mr Welsh has made or does make in response to matters referred to in Mr Strachan's further letter to him dated 15 January 2021.

Did the behaviour create a risk to the health and safety of Mr Welsh?

  1. [187]
    Because there has been no repeated, unreasonable behaviour towards Mr Welsh, this is not a question that requires consideration.

Was the behaviour other than reasonable management action carried out in a reasonable manner?

  1. [188]
    It is unnecessary to consider this issue.
  1. [189]
    Nevertheless, given my findings above, for completeness, I find that the impugned behaviour of Mr Ball, Mr Watson and Mr Strachan was reasonable management action carried out in a reasonable manner. The reasons for this are, in general, the reasons I have expressed above as to why their behaviour was reasonable.
  1. [190]
    More specifically:
  • the action taken by Mr Ball, Mr Watson and Mr Strachan during the preliminary investigation, the investigation and the disciplinary procedure was management action because it was action directing or managing Mr Welsh in his employment;
  • that management action was reasonable management action carried out in a reasonable way, because given that Mr Welsh was an employee of the Council who was bound by the Code:

in respect of the preliminary investigation:

  • it was reasonable for Mr Denman to raise the outstanding compliance matter in relation to the property with Mr Ball, given that Mr Ball was the Development Assessment Manager; and
  • because Mr Ball did not know about the issue, it was reasonable management action carried out in a reasonable manner for him to organise the preliminary investigation to see if there were any issues of concern regarding what had been reported to him; and to refer the conclusions from that preliminary investigation[203] to Mr Watson in People and Culture;

in respect of the investigation, it was reasonable for Mr Watson to engage Ashdale, being an organisation independent of the Council, to conduct the investigation of the unapproved works allegation and the improper accessing of files allegation; and

in respect of the disciplinary procedure, upon Ashdale reporting that the unapproved works allegation and the improper accessing of files allegation were capable of substantiation, it was reasonable management action carried out in a reasonable way for Mr Strachan to issue the show cause, and then following Mr Welsh's response to the show cause, to issue the notice.

  1. [191]
    For these reasons, that impugned management action was reasonable and was carried out in a reasonable manner.

Is there a risk that Mr Welsh will continue to be bullied in the workplace?

  1. [192]
    Because I am not satisfied that Mr Welsh has been bullied in the workplace, there is no requirement for me to consider whether there is a risk he will continue to be bullied in the workplace.

What order, pursuant to s 275 of the Act, should be made?

  1. [193]
    Because I have not found that Mr Welsh has been bullied in the workplace, there is no order that I can make under s 275 of the Act.
  1. [194]
    Notwithstanding this, I will, in deference to the submissions made on behalf of Mr Welsh, deal with his submissions about what orders should have been made if I did find that Mr Welsh had been bullied in the workplace and there was a risk he would continue to be bullied in the workplace.
  1. [195]
    Mr Welsh submitted that he sought orders that would prevent the Council from pursuing the two matters any further. Mr Welsh further submitted that but for these proceedings, the Council is poised to bring its disciplinary action against him to an end and that the most likely outcome would be his dismissal.[204]
  1. [196]
    Mr Welsh posed the question as to why the Commission should intervene at that point to stop the disciplinary action when the applicant would have the right to pursue an application for reinstatement in the event his employment was terminated? The answer given by Mr Welsh was that the termination of his employment, in the circumstances where he had been bullied in the workplace, '… would be the final act of bullying by the respondent and the commission is charged under s 275 of the Act to prevent the employee from being bullied.'[205]
  1. [197]
    Mr Welsh further submitted that:
  • the nature of the orders sought by him do not come into collision with the discretion conferred on the Commission to make non-pecuniary orders to prevent the employee from being bullied;
  • on the basis that the noun 'entity' in s 275(3)(a) of the Act should be given its usual meaning, namely, an 'independent organisation or person, especially when regarded as having legal responsibilities', the Council is not 'another entity' within the meaning of that paragraph;
  • the Commission should reach the conclusion that the investigation undertaken by the Council should not be relied upon to impose the termination of his employment;
  • it is common ground that there is no other procedure available to him and the Council has not taken that point in these proceedings, namely, there are no final or interim outcomes to consider; and
  • the various failures of the Council to afford him natural justice are relevant matters for the Commission to take into account.[206]
  1. [198]
    The Council's submissions about the order that may be made were, of course, premised on the contention that Mr Welsh had not been bullied in the workplace.[207]
  1. [199]
    The equivalent power to make orders conferred on the FWC, pursuant to s 789FF(1) of the FW Act, is directed to stopping future bullying behaviour.[208] That section has also been held to confer a wide discretion in relation to the types of orders that the FWC can make, which is not limited to stop bullying orders, but can also include orders which have a rational connection to the jurisdiction with the only prohibition being orders for monetary compensation to be payable to an applicant.[209]
  1. [200]
    In my view, if I had been satisfied that Mr Welsh, by the commencement of the disciplinary procedure against him, was bullied in the workplace and that there was a risk he would continue to be bullied in the workplace by the continuation of that disciplinary action,[210] then, I would have made orders of the kind sought by Mr Welsh because the act of dismissing Mr Welsh would have been a final step in a course of bullying, the prevention of which would have served the statutory purpose of s 275(2) of the Act.[211]
  1. [201]
    However, for the reasons given above:
  • Mr Neylon, Mr Denman, Mr Ball, Mr Watson and Mr Strachan did not repeatedly behave unreasonably toward Mr Welsh; and
  • the action taken against Mr Welsh, in terms of the preliminary investigation, the investigation and the disciplinary procedure, was reasonable management action carried out in a reasonable manner.
  1. [202]
    Because Mr Strachan has not completed the disciplinary procedure against Mr Welsh, I make it very clear that my decision concerns the precise and confined question of whether Mr Welsh has been bullied in the workplace within the meaning of ch 7 of the Act. For this reason, and for the reasons referred to in paragraphs [184]-[186], nothing in this decision should be taken by Mr Strachan, or any authorised delegate of the chief executive officer of the Council, to mean that if Mr Welsh is dismissed, his dismissal would not be harsh, unjust or unreasonable, or not otherwise unlawful.

Conclusion

  1. [203]
    Despite the skilful advocacy of Mr Henderson of the Union on behalf of Mr Welsh, for the reasons given above, my view is that in relation to the preliminary investigation, the investigation and the disciplinary procedure, the behaviour of Mr Neylon, Mr Denman, Mr Ball, Mr Watson and Mr Strachan towards Mr Welsh was not repeated, unreasonable behaviour.
  1. [204]
    For these reasons, I cannot be satisfied that Mr Welsh has been bullied in the workplace.

Order

  1. [205]
    I make the following order:

The Applicant's application for an order to stop bullying is dismissed.

Footnotes

[1] Industrial Relations Legislative Reform Reference Group, A Review of the Industrial Relations Framework in Queensland, (Report dated December 2015) 85-87.

[2] Queensland, Parliamentary Debates, Legislative Assembly, 29 November 2016, 4662 (Grace Grace, Minister for Employment and Industrial Relations).

[3] Ms SB [2014] FWC 2104 ('Ms SB'), [54] (Commissioner Hampton).

[4] Ibid [54].

[5] Section 7 of the Work Health and Safety Act 2011 provides:

7Meaning of worker

(1) A person is a worker if the person carries out work in any capacity for a person

conducting a business or undertaking, including work as-

(a)an employee; or

(b)a contractor or subcontractor; or

(c)an employee of a contractor or subcontractor; or

(d)an employee of a labour hire company who has been assigned to work in the person’s business or undertaking; or

(e)an outworker; or

(f)an apprentice or trainee; or

(g)a student gaining work experience; or

(h)a volunteer; or

(i)a person of a prescribed class.

(2)For this Act, a police officer is-

(a)a worker; and

(b)at work throughout the time when the officer is on duty or lawfully performing the

functions of a police officer, but not otherwise.

(3)The person conducting the business or undertaking is also a worker if the person is an

individual who carries out work in that business or undertaking.

[6] Industrial Relations Act 2016 s 8(2)(b).

[7] Bowker v DP World Melbourne Ltd [2014] FWCFB 9227; (2014) 246 IR 138, [51] (Justice Ross, President, Vice President Hatcher, Deputy President Gostencnik, Commissioner Hampton and Commissioner Johns).

[8] Ms SB (n 3) [41].

[9] Ibid [43].

[10] Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274 ('Mac'), [89] (Vice President Hatcher).

[11] Ibid [90].

[12] Ibid [91].

[13] Mac (n 10) [99].

[14] Ibid [92].

[15] Macquarie Dictionary (7th ed, 2017) 'towards' (def 2).

[16] Ms SB (n 3) [44]-[45].

[17] Mac (n 10) [94].

[18] Ms SB (n 3) [47].

[19] Ms SB (n 3) [49]-[53] and Mac (n 10) [95].

[20] Macquarie Dictionary (7th ed, 2017) 'manage' (def 4).

[21] Macquarie Dictionary (7th ed, 2017) 'management' (def 1).

[22] Section 32(5) of the Workers' Compensation and Rehabilitation Act 2003 provides:

(5)Despite subsections (1) and (3), injury does not include a psychiatric or psychological

disorder arising out of, or in the course of, any of the following circumstances-

(a)reasonable management action taken in a reasonable way by the employer in

connection with the worker's employment;

(b)the worker's expectation or perception of reasonable management action being

taken against the worker;

[23] See the authorities referred to in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator [2020] QIRC 097 ('DAF'), [41] (Deputy President Merrell).

[24] Ms SB (n 3).

[25] As summarised in DAF (n 23) [22]-[29].

[26] Macquarie Dictionary (7th ed, 2017) 'risk' (def 1).

[27] Mekuria v MECCA Brands Pty Ltd [2019] FWCFB 2771, [29] (Vice President Hatcher, Deputy President Sams and Commissioner Hampton).

[28] Mr Welsh's final submissions filed on 18 February 2021 ('Mr Welsh's final submissions'), para. 1 and the Logan City Council's final submissions filed on 2 March 2021 ('the Council's final submissions'), para. 9.

[29] Mr Welsh's final submissions, para. 6 and the Council's final submissions, para. 10.

[30] Mr Welsh's final submissions, para. 5.

[31] Mr Welsh's final submissions, paras. 45-50; [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw') at 361-362 (Dixon J).

[32] Mr Welsh's final submissions, para. 8.

[33] Mr Welsh's final submissions, para. 13.

[34] Mr Welsh's final submissions, para. 19.

[35] Mr Welsh's final submissions, paras. 51-103 (in relation to the unapproved works allegation) and paras. 104‑114 (in relation to the improper accessing files allegation).

[36] Mr Welsh's final submissions, para. 98.

[37] Mr Welsh's final submissions, paras. 102 and 103.

[38] Mr Welsh's pre-hearing submissions filed on 18 December 2020 ('Mr Welsh's pre-hearing submissions'), paras. 15-20 and Mr Welsh's final submissions, para. 102, first dot point.

[39] Mr Welsh's pre-hearing submissions, paras. 26-37 and Mr Welsh's final submissions, para. 102, second dot point.

[40] Mr Welsh's final submissions, para. 102, third dot point.

[41] Mr Welsh's final submissions, para. 102, fourth dot point.

[42] Mr Welsh's final submissions, para. 101.

[43] Briginshaw (n 31).

[44] Mr Welsh's final submissions, paras. 104-112.

[45] Exhibit 2, para. 16.

[46] Exhibit 2, para. 17.

[47] Exhibit 2, para. 18.

[48] The Logan City Council's pre-hearing submissions filed on 15 January 2021 ('the Council's pre-hearing submissions'), para. 8.2.

[49] Footnotes omitted.

[50] Mr Welsh's final submissions, para. 52.

[51] Mr Welsh's final submissions, paras. 100 and 102.

[52] Mr Welsh's final submissions, para. 101.

[53] Mr Welsh's final submissions, para. 59.

[54] Mr Welsh's final submissions, 60-73.

[55] Exhibit 7, exhibit 'SB-01'.

[56] Exhibit 12, exhibit 'RS-01'.

[57] For an unexplained reason, the name of this employee was redacted in Exhibit 12.

[58] Exhibit 12, exhibit 'RS-01'.

[59] Exhibit 12, exhibit 'RS-01'.

[60] Exhibit 12, exhibit 'RS-01'.

[61] T 1-29, ll 1-7.

[62] Mr Welsh's pre-hearing submissions, para. 27.

[63] Exhibit 2, exhibit 'BW06', page 2.

[64] Exhibit 2, exhibit 'BW06', page 2.

[65] T 1-56, ll 39-44.

[66] As at 22 August 2018, s 132 of the LG Act provided:

132Entering under an application, permit or notice

(1)This section applies if an authorised person wants to enter a property-

(a)to inspect the property in order to process an application made

under any Local Government Act; or

(b)to inspect a record that is required to be kept for a budget accommodation

building under the Building Act, chapter 7; or

(c)to find out whether the conditions on which a permit or notice was issued

have been complied with; or

(d)to inspect work that is the subject of, or was carried out under, a permit or notice.

(2)A permit is an approval, authorisation, consent, licence, permission, registration

or other authority issued under any Local Government Act.

(3)A notice is a notice issued under any Local Government Act.

(4)The authorised person may enter the property without the permission of the occupier of the property-

(a)at any reasonable time during the day; or

(b)at night, if-

(i)the occupier of the property asks the authorised person to enter the property at that time; or

(ii)the conditions of the permit allow the authorised person to enter the property at that time; or

(iii)the property is a public place and is not closed to the public.

(5)However, the authorised person-

(a)must, as soon as the authorised person enters the property, inform any occupier of the property-

(i)of the reason for entering the property; and

(ii)that the authorised person is authorised under this Act to enter the property without the permission of

the occupier; and

(b)may enter a home that is on the property only if the occupier of the relevant part of the property

accompanies the authorised person.

[67] T 1-56, ll 45-46.

[68] T 1-56, l 47 to T 1-57, l 3.

[69] T 1-57, ll 27-31.

[70] T 1-59, ll 4-5.

[71] Mr Welsh's final submissions, para. 99.

[72] Exhibit 11, exhibit 'RS-02', Attachment 17.

[73] Local Government Act 2009 sch 4 (definition of 'Local Government Act').

[74] Exhibit 8, page 9.

[75] Exhibit 8, page 12.

[76] Exhibit 8, page 12.

[77] Exhibit 8, page 13.

[78] Exhibit 8, page 19.

[79] Mr Welsh's final submissions, para. 101.

[80] T 1-61, ll 1-9 and T 1-63, ll 1-14 (Mr Ball) and T 1-104, ll 45-46 (Mr Strachan).

[81] Mr Welsh's final submissions, para. 42.

[82] [1959] HCA 8; (1959) 101 CLR 298.

[83] Mr Welsh's final submissions, para. 54.

[84] [2011] HCA 11; (2011) 243 CLR 361.

[85] Ibid [63] (Heydon, Crennan and Bell JJ).

[86] [2012] HCA 17; (2012) 247 CLR 345 ('Hellicar').

[87] Hellicar (n 86), [165]-[167] (French CJ, Gummow, Hayne, Kiefel and Bell JJ).

[88] Manly Council v Byrne [2004] NSWCA 123, [54] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[89] Ibid [55] (Campbell J, with Beazley JA at [1] and Pearlman AJA at [2] agreeing).

[90] Exhibit 11, exhibit 'RS-05', page 3.

[91] Exhibit 5, exhibit 'GW-07', pages 11-12 of 41.

[92] Exhibit 5, exhibit 'GW-07', pages 13-14 of 41.

[93] Exhibit 5, exhibit 'GW-07', page 15 of 41.

[94] Exhibit 11, exhibit 'RS-03', page 2, fourth paragraph.

[95] Exhibit 2, exhibit 'BW06'.

[96] Exhibit 11, exhibit 'RS-03', page 2, fourth paragraph.

[97] Exhibit 2, exhibit 'BW08', sixth page.

[98] Exhibit 11, exhibit 'RS-05', page 3, fifth paragraph.

[99] Exhibit 7, paras. 3-5.

[100] Exhibit 7, para. 6.

[101] Exhibit 7, paras. 7-8.

[102] T 1-74, l 23 to T 1-77, l 45.

[103] Exhibit 9 is a Council Fact Sheet that deals with Building Show Cause Notices.

[104] Exhibit 10 is a Council Fact Sheet that deals with Building Enforcement Notices.

[105] T 1-74, ll 33-36.

[106] T 1-77, ll 18-19.

[107] T 1-77, l 21.

[108] T 1-73, ll 24-40.

[109] Exhibit 7, para. 11.

[110] Mr Welsh's final submissions, paras. 68-70.

[111] Mr Welsh's final submissions, paras. 19a) and 19b).

[112] Exhibit 11, exhibit 'RS-03', page 2.

[113] Public Sector Ethics Act 1994 sch (definition of 'public sector entity').

[114] Public Sector Ethics Act 1994 sch (definition of 'public official').

[115] Public Sector Ethics Act 1994 s 10(1).

[116] Public Sector Ethics Act 1994 s 10(2).

[117] Exhibit 11, exhibit 'RS-04' page 7.

[118] T 1-73, l 45 to T 1-74, l 29.

[119] Exhibit 7, para. 11.

[120] Mr Welsh's final submissions, paras. 74-78.

[121] Mr Welsh's final submissions, paras. 31-32.

[122] Exhibit 5, para. 10.

[123] T 1-36, ll 42-43.

[124] Exhibit 5, para. 11.

[125] Exhibit 11, para. 9.

[126] Exhibit 2, exhibit 'BW01'.

[127] Exhibit 2, exhibit 'BW01'.

[128] Exhibit 11, para. 10.

[129] Exhibit 2, exhibit 'BW02'.

[130] Exhibit 2, exhibit 'BW02'.

[131] Exhibit 2, para. 5 and exhibit 'BW03'.

[132] Exhibit 2, exhibit 'BW04'.

[133] Exhibit 2, para. 7 and exhibit 'BW05'.

[134] Exhibit 2, para. 8.

[135] T 1-38, ll 3-5.

[136] Exhibit 5, para. 18.

[137] Exhibit 2, para. 8.

[138] Exhibit 5, exhibit 'GW-07', pages 5-6 of 41.

[139] T 1-35, ll 35-40.

[140] Exhibit 2, exhibit 'GW-07', page 2 of 41.

[141] Exhibit 5, para. 17 and T 1-50, l 39 to T 1-51, l 4.

[142] Mr Welsh's final submissions, para. 32.

[143] Mr Welsh's final submissions, para. 33.

[144] Mr Welsh's final submissions, paras. 34-35.

[145] T 1-106, l 44 to T 1-107, l 21.

[146] Exhibit 5, exhibit 'GW-07', page 3 of 41.

[147] Mr Welsh's final submissions, para. 19a).

[148] Mr Welsh's final submissions, para. 19b).

[149] Mr Welsh's final submissions, para. 19c).

[150] Mr Welsh's final submissions, paras. 41, 42 and 45 to 50.

[151] Briginshaw (n 31).

[152] Mr Welsh's final submissions, paras. 45-50 and 105.

[153] Mr Welsh's final submissions, para. 34.

[154] Exhibit 11, exhibit 'RS-03' pages 2-3.

[155] Exhibit 11, exhibit 'RS-03', pages 2-4.

[156] Exhibit 2, exhibit 'BW06'.

[157] Exhibit 11, exhibit 'RS-05', para. 22.

[158] Exhibit 11, exhibit 'RS-05', page 6.

[159] Exhibit 11, exhibit 'RS-06'.

[160] Exhibit 2, exhibit 'BW08'.

[161] Exhibit 11, paras. 13 and 14.

[162] Exhibit 11, exhibit 'RS-03', pages 2, 3 and 32 to 43.

[163] Exhibit 11, exhibit 'RS-03', pages 3, 4 and 44 to 50.

[164] T 1-108, ll 1-5.

[165] Briginshaw (n 31), 361-362.

[166] [1992] HCA 66; (1992) 67 ALJR 170 at 171.

[167] Exhibit 11, exhibit 'RS-05', pages 2-3, para. 6.

[168] Exhibit 11, exhibit 'RS-05', page 4, para. 16.

[169] Mr Welsh's final submissions, para. 30.

[170] [2015] QSC 111 ('Vega').

[171] Mr Welsh's final submissions, para. 30.

[172] Vega (n 170), [155]-[175].

[173] Ibid [176]-[177].

[174] Saeed v Minister for Immigration and Citizenship [2010] HCA 23; (2010) 241 CLR 252, [11]-[13] (French CJ, Gummow, Hayne, Crennan and Kiefel JJ).

[175] Wirth v Mackay Hospital and Health Service [2016] QSC 39 ('Wirth'), [26]-[31] (Bond J).

[176] Ibid [31] and the cases referred to in that paragraph.

[177] Exhibit 5, exhibit 'GW-06', page 4, fourth paragraph.

[178] Exhibit 5, exhibit 'GW-06', page 5, fourth paragraph.

[179] Wirth (n 175), [98].

[180] Ibid [100]-[101].

[181] Exhibit 11, exhibit 'RS-03', fourth paragraph.

[182] Exhibit 11, para. 13.

[183] Mr Welsh's pre-hearing submissions, para. 23

[184] Mr Welsh's pre-hearing submissions, para. 24.

[185] Exhibit 2, exhibit 'BW06'.

[186] Exhibit 2, exhibit 'BW06', first, second and third pages.

[187] Exhibit 2, exhibit 'BW06', third and fourth pages.

[188] Exhibit 2, exhibit 'BW06', the first page, seventh paragraph, the second page, first paragraph, and the third page, fifth paragraph.

[189] Exhibit 2, exhibit 'BW06', first page, sixth paragraph.

[190] Exhibit 2, exhibit 'BW06', first page, eighth paragraph. Mr Welsh, in cross-examination, stated that: 'The carport was removed.' - T 1-16, ll 34-35.

[191] Exhibit 2, exhibit 'BW06', third page, fourth paragraph.

[192] Exhibit 11, exhibit 'RS-05', page 2, para. 6(b) and Attachment 1.

[193] Exhibit 11, exhibit 'RS-05', page 2, para. 6(f) and Attachment 2.

[194] Exhibit 11, exhibit 'RS-05', page 3, para. 6(h) and Attachment 3.

[195] Exhibit 11, exhibit 'RS-05', page 6.

[196] Mr Welsh's final submissions, para. 14.

[197] T 1-49, l 16.

[198] T 1-49, ll 19 and 25-27.

[199] Exhibit 11, exhibit 'RS-07'.

[200] Mr Welsh's submissions, para. 21. Mr Welsh raised the issue of his suspension as evidence of the risk to his health and safety.

[201] Exhibit 11, exhibit 'RS-07', page 1.

[202] Exhibit 11, exhibit 'RS-07', page 8.

[203] Namely, there was reasonable cause to suspect that:

  1. associated development offences had not been regularised;
  2. Mr Welsh had improperly accessed files in relation to the property from the Council's document management system; and
  3. breaches of the Code had occurred.

[204] Mr Welsh's final submissions, para. 115.

[205] Mr Welsh's final submissions, paras. 115-116.

[206] Mr Welsh's final submissions, paras. 117-122.

[207] The Council's final submissions, paras. 94-96.

[208] South Eastern Sydney Local Health District v Lal [2019] FWCFB 1475; (2019) 285 IR 355, [21]-[23] (Vice President Hatcher, Deputy President Sams and Commissioner Hampton.

[209] Obatoki v Mallee Track Health and Community Services [2015] FWCFB 1661; (2015) 249 IR 135, [18] (Vice President Catanzariti, Deputy President Smith and Commissioner Blair).

[210] Subject to anything raised by the Council concerning the matters referred to in s 275(3) of the Act.

[211] Mayson v Mylan Health Pty Ltd & Ors [2020] FWC 1404, [29] (Deputy President Coleman).

Close

Editorial Notes

  • Published Case Name:

    Welsh v Logan City Council

  • Shortened Case Name:

    Welsh v Logan City Council

  • MNC:

    [2021] QIRC 141

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    29 Apr 2021

Appeal Status

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