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  4. Clayton v State of Queensland (Department of Transport and Main Roads) - [2021] QIRC 228

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Clayton v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 228

Clayton v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 228

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Clayton v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 228

PARTIES:

Clayton, Gregory John

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

PSA/2021/65

PROCEEDING:

Public Service Appeal - Fair Treatment

DELIVERED ON:

28 June 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN SUBMISSIONS:

Respondent's written submissions filed on 1 March 2021 and Appellant's written submissions filed on 22 March 2020

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision appealed against is set aside; and
  1. (b)
    another decision is substituted, namely, the decision referred to in paragraph [75] of the reasons for decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appellant lodged grievance that alleged workplace conduct of another employee was workplace bullying – grievance managed and decision made that the conduct did not amount to workplace bullying – appellant sought internal review of grievance decision – internal review decision was that the grievance decision was fair and reasonable – appeal under ch 7 of the Public Service Act 2008 against internal review decision – whether internal review decision was fair and reasonable – aspects of internal review decision not fair and reasonable – decision appealed against set aside and a new decision substituted

LEGISLATION:

Directive 02/17 Managing employee complaints

Industrial Relations Act 2016, s 539 and s 562C

Industrial Relations (Tribunals) Rules 2011, s 97

CASES:

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126

Reasons for Decision

Introduction

  1. [1]
    Mr Gregory John Clayton is currently employed in the position of ICT Change Manager in the Service Management section of the Department of Transport and Main Roads ('the Department'). Mr Clayton is employed by the State of Queensland. The classification of Mr Clayton's position is AO7. Due to medical reasons, Mr Clayton has been absent from work since 11 June 2019.
  1. [2]
    By appeal notice filed on 5 February 2021, Mr Clayton, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a written decision made by Ms Wietske Smith, Acting Deputy Director-General (Corporate) of the Department dated 14 January 2021 ('the decision').
  1. [3]
    The decision involved Ms Smith's internal review of earlier written decisions of Ms Sandra Slater, Chief Information Officer of the Department, dated 19 October 2020 and 24 November 2020. Ms Slater's decisions concerned Mr Clayton's earlier written grievances dated 11 May 2020 about changes being made to his position, arrangements concerning his return to work and his allegations of workplace bullying made against another employee.
  1. [4]
    On 7 December 2020, Mr Clayton sought an internal review of both decisions made by Ms Slater. By the decision, Ms Smith found that Ms Slater had conducted a thorough management enquiry and in doing so had complied with the requirements to reasonably consider and decide Mr Clayton's complaint under Directive 02/17 Managing employee complaints ('the Directive')
  1. [5]
    The parties exchanged written submissions in accordance with a Directions Order dated 8 February 2021. Pursuant to s 539(c) of the Industrial Relations Act 2016 ('the IR Act'), no hearing was conducted. As I understand Mr Clayton's submissions, he seeks an order that an external review be undertaken of his grievances, referred to above in paragraph [3], on the basis that he has been denied natural justice.
  1. [6]
    The question for my determination is whether the decision, and the decision‑making process, was fair and reasonable.[1]
  1. [7]
    Having regard to the submissions made by the parties, my view is that certain aspects of the decision were not fair and reasonable. However, for the reasons I give below, I will confirm the decision appealed against other than one aspect of it.

Mr Clayton's grievances

  1. [8]
    As best as I can make out from the material submitted, Mr Clayton's grievances concerned the following matters:
  • changes being made to his substantive position;
  • the Flexible Work Arrangement ('FWA') in respect of his return to work;
  • grievances concerning events involving another employee of the Department, who is Mr Clayton's direct manager[2] ('the other employee'), which occurred prior to 2018; and
  • other grievances of alleged workplace bullying by the other employee, namely:
  1. —
    allegations concerning the other employee's general communication style;
  1. —
    allegations concerning the other employee's conduct in relation to the FWA and Mr Clayton's graduated return to work; and
  1. —
    allegations concerning the other employee's conduct in relation to changes to Mr Clayton's substantive position.
  1. [9]
    Mr Clayton provided Ms Slater with a spreadsheet which set out the events the subject of all of his grievances going back to 2015 and up to May 2020. The Department submitted that to gain a fulsome understanding of the matters raised by Mr Clayton, Ms Slater instructed a Principal Human Resources Advisor to meet with Mr Clayton to expand on his examples within the spreadsheet for her (Ms Slater's) consideration.
  1. [10]
    The spreadsheet, with the additional information provided by Mr Clayton, was an attachment to the Department's written submissions.

Ms Slater's decisions

  1. [11]
    By her first decision dated 19 October 2020, Ms Slater found that:
  • the change being made to Mr Clayton's substantive position was based on a business decision and was reasonable management action and, as such, Mr Clayton's concerns in relation to the changes being made to his substantive position were finalised;
  • when Mr Clayton was fit to return to work, he would have an opportunity to submit a FWA for consideration to his Director and, as such, Mr Clayton's concerns in relation to his FWA were finalised; and
  • the complaints Mr Clayton made against the other employee about events which occurred prior to 2018 would not, given the passage of time, be considered because it would be an unreasonable expectation for the other employee to provide a detailed recollection of the specific conversations and/or events the subject of those complaints.
  1. [12]
    By her second decision dated 24 November 2020, Ms Slater found that:
  • none of Mr Clayton's other grievances of alleged workplace bullying by the other employee constituted workplace bullying;
  • in relation to the first 11 grievances she referred to in her letter, she considered them to be finalised and/or that no further action was required; and
  • in relation to the last grievance she referred to in her letter, discussions would be held with Mr Clayton upon his return to work about supporting him to succeed in his role.

The issues raised by Mr Clayton as part of his request for an internal review

  1. [13]
    Mr Clayton was of the view that Ms Slater's decisions were unfair and unreasonable because:
  • not all the entries on the spreadsheet were investigated, including calling witnesses where referenced in the spreadsheet;
  • in some instances, the other employee had not been able to recollect the details of the matter raised by Mr Clayton, which was an 'easy and convenient option' for the other employee to rely upon;
  • the response by Ms Slater did not reflect the other employee's contribution to the issues and suggests he had to improve the relationship; and
  • one of the examples provided by him was not investigated by Ms Slater, as she was referenced in that example.
  1. [14]
    In his internal review request, Mr Clayton stated that a full and complete investigation of his complaint and an alternative reporting line (namely, as I understand it, not reporting to the other employee) would resolve his complaints.

Ms Smith's decision

Not all the entries on the spreadsheet were investigated, including calling witnesses where referenced in the spreadsheet

  1. [15]
    In relation to the first issue raised by Mr Clayton, Ms Smith found that:
  • Ms Slater reviewed all the material provided by Mr Clayton, including the additional information Mr Clayton provided that was added to the spreadsheet;
  • in considering Mr Clayton's grievances, Ms Slater considered:
  1. —
    the Managing Employee Complaints Procedure, in particular, s 5 which deals with the hearing rule of the principles of natural justice (namely, that a person must be allowed an adequate opportunity to present their case where their interests and rights may be adversely affected by a decision maker); and
  1. —
    the Managing Employee Complaints Policy, in particular, s 6 which provides that employees are encouraged to ensure that complaints are made as soon as reasonably possible after the relevant conduct or behaviour occurred; and
  • Ms Slater's decision, not to investigate the conduct Mr Clayton alleged occurred prior to 2018, complied with the rules of natural justice in respect of the other employee.
  1. [16]
    Ms Smith concluded by stating:

Response to managing your complaint

Pursuant to the Managing workplace investigations: a practical guide for the Queensland public sector, when a delegate has been tasked with managing a complaint regarding a workplace performance or a conduct matter, they have the discretion to determine whether to conduct a management enquiry or workplace investigation to assist in gathering information and ultimately decisioning the matter.

Factors a delegate will consider in selecting which response is most suitable includes, but is not limited to, the nature of the allegations, period of time, potential disciplinary action if allegations are substantiated, role and seniority of persons involved, cost implications for conducting a workplace investigation, availability to existing evidence and access to witnesses and the subject officer.

In line with the Managing workplace investigations: a practical guide for the Queensland public sector and taking into consideration the surrounding circumstances, Ms Slater determined that a management enquiry was the most suitable response in managing your complaint. Ms Slater had access to various credible sources of information from the HR case manager and Injury Management team and she was in receipt of [the other employee's] response.

I note your concern in regard to not calling witnesses to support your examples. In deciding whether to call witnesses or not, it is my understanding that Ms Slater took into account the health and wellbeing of both you and [the other employee], and determined calling witnesses would not further assist the situation or her insight on the matters, noting that the details of events were from several years ago. Involving others would have unnecessarily delayed her ability to provide a final response to your grievance and overall support and assistance to you both.

Taking into account all forms of information available to Ms Slater and her application of the procedure, policy and guide referred to above, I am of the view that Ms Slater has considered all the information provided by you and had all the necessary information she required to make an informed decision on your employee complaint.

In some instances, the other employee had not been able to recollect the details of the matter raised by Mr Clayton, which is an 'easy and convenient option' for the other employee to rely upon

  1. [17]
    In relation to the second issue raised by Mr Clayton, Ms Smith found:

I have reviewed the letter to [the other employee] requesting her response and the response from [the other employee] and can confirm that [the other employee] has provided a very thorough response to each of the matters she was able to recollect. Due to the passage of time, [the other employee] was not able to recollect the matter relating to the temporary staff member making a rude remark towards you and parts of the matter relating to a conversation between yourself and [the other employee]. Otherwise, [the other employee] has responded in detail to each of the matters raised by you.

I do not consider [the other employee] has taken the easy and convenient option in her responses and I support Ms Slater's decision to accept [the other employee's] response given the passage of time from when these events took place and when [the other employee] was asked to respond to your complaint.

The response by Ms Slater does not reflect the other employee's contribution to the issues and suggests Mr Clayton had to improve the relationship

  1. [18]
    In relation to the third issue raised by Mr Clayton, Ms Smith found:
  • she had reviewed Ms Slater's outcome letter to Mr Clayton and the outcome letter to the other employee and was of the view that Ms Slater's decision did not suggest that it was only Mr Clayton that had to improve the relationship;
  • Ms Slater provided the other employee with her own directions;
  • Ms Slater advised Mr Clayton that where she (Ms Slater) supported the other employee's actions and where she acknowledged that the other employee had made an error in judgment and/or management direction, she had provided confirmation of the steps to be taken to prevent further occurrences; and
  • Ms Slater instructed that a facilitated discussion be held between Mr Clayton and the other employee as a first step to rebuilding their working relationship.
  1. [19]
    Ms Smith encouraged Mr Clayton and the other employee to participate in the process in good faith. Ms Smith confirmed that such a facilitated discussion would be held by a suitable member of the Executive Leadership Team and if necessary, a series of discussions could occur. Ms Smith also stated that both Mr Clayton and the other employee had an obligation to generally participate in those discussions.

One of the examples provided by Mr Clayton was not investigated by Ms Slater as she was referenced in that example

  1. [20]
    In relation to the final issue raised by Mr Clayton, Ms Smith found:

On 10 December 2020 you sent an email to the HR CMU team supporting your internal review request stating the following:

  • The complaint is not about the decision maker herself but this particular area of my complaint was subsequently not investigated by the decision maker and I feel it serves as a very good example of my manager's behaviour towards me.

I note the example you are referring to was in 2016. As advised by Ms Slater, in her letter dated 19 October 2020, examples raised by you prior to 2018 were not considered due to the requirement to provide natural justice to [the other employee]. Notwithstanding, I advise that Ms Cooley did conduct a conflict of interest assessment and it was determined that there was no conflict of interest with Ms Slater being the decision maker for your employee complaint.

Based on the information before me, I support Ms Slater's decision, for reasons already discussed above, to not consider the matter where Ms Slater was referenced and to remain the decision maker for your employee complaint.

  1. [21]
    In conclusion, Ms Smith stated:

In your internal review request you have sought a review of Ms Slater's decision to your complaints about [the other employee]. I have considered the information you have provided in your employee complaint, the various guiding documents outlined above, and your concerns raised in your internal review. I have read through the material presented to Ms Slater and her responses to you and [the other employee].

Please be assured your complaint has been well considered by Ms Slater. Having reviewed the information before Ms Slater and her approach to the decision-making process, I can advise your complaints have not been 'watered down' and all matters raised by you were reviewed prior to Ms Slater considering whether or not to present these to [the other employee] for response.

In my view, Ms Stater has conducted a thorough management enquiry and in doing so has complied with her requirements to reasonably consider and decision your complaint under the Directive 02/17 Managing Employee Complaints.

With respect to your actions that you believe will resolve the complaint, for reasons already discussed a workplace investigation will not be occurring. I confirm the management team is supportive of an alternative reporting arrangement on a short-term temporary basis upon your return to work whilst you and [the other employee] work on repairing your relationship. The details of this this [sic] arrangement will be finalised and worked into your return to work plan once a return to work date has been settled on.

I support the decisions of Ms Slater on 19 October 2020 and 24 November 2020 and find her decision was fair and reasonable.

Mr Clayton's appeal grounds

  1. [22]
    Mr Clayton states that he is appealing '… both my original complaint outcome and the two subsequent internal review.' In relation to both of Ms Slater's decisions, Mr Clayton was advised that he could request an internal review of those decisions. Mr Clayton exercised that right which resulted in the internal review decision by Ms Smith. While it can only be Ms Smith's internal review decision that Mr Clayton can appeal, given Ms Smith's decision was an internal review of Ms Slater's two decisions, I will give consideration to all of the grounds set out in Mr Clayton's appeal in determining whether or not Ms Smith's decision was fair and reasonable.
  1. [23]
    Mr Clayton's grounds of appeal are:
  • he was assured by 'the decision maker' (Ms Slater) that all aspects of his complaint would be presented to his manager for response, that did not occur and key items were omitted;
  • he raised concerns regarding a conflict of interest in relation to the 'appointed decision maker' (Ms Slater) as she was referenced in the complaint and that his claim of a conflict of interest had been dismissed;
  • third-party witnesses referenced in his complaint have not been engaged;
  • the response to his complaint and the subsequent internal review refers to natural justice '… for my manager however a lack of full investigation does not allow me to demonstrate a pattern of behaviour eliminating my right to natural justice'; and
  • the recommended conciliation has been attempted previously in an attempt to resolve matters locally and that directives were not followed by his manager and '… little progress has been made as outlined in my original complaint.'

The Department's submissions

  1. [24]
    The Department's general submission is that Mr Clayton's appeal is frivolous and vexatious because:
  • he has no intention to resolve his complaint and to return to work in his substantive position;
  • during the time Mr Clayton has been off work (from 11 June 2019 to the present), the Department has been accommodating and supportive of him and has made genuine attempts to facilitate a safe, gradual return to work and resolution of the interpersonal conflict between himself and the other employee; and
  • at no time has Mr Clayton accepted his contribution to the interpersonal conflict or made genuine attempts or declarations to indicate he wants to resolve the matters between himself and the other employee.
  1. [25]
    The Department made the following submissions in relation to the specific issues raised in Mr Clayton's original complaints, reasons for internal review and in his appeal.

Changes to Mr Clayton's substantive position

  1. [26]
    The Department submitted that a significant portion of Mr Clayton's grievance related to the changes to his substantive position and that despite Mr Clayton being provided with the rationale for the change and afforded extensive consultation, Mr Clayton was opposed to the proposed change and was not receptive to any of the offers of assistance and support to help him perform the changes to his role.

The alleged denial of natural justice to Mr Clayton by Ms Slater

  1. [27]
    The Department submitted that Mr Clayton had been provided with the opportunity to present his case and that upon a thorough review of all the information before her, Ms Slater determined that the allegations of workplace bullying were not substantiated but rather there was evidence of interpersonal conflict between Mr Clayton and the other employee.

Conciliation

  1. [28]
    The Department submitted that Mr Clayton had been offered a temporary change of reporting line, while alternative dispute resolution strategies were being implemented, to overcome the interpersonal conflict identified by Ms Slater. The Department further submitted that formal mediation or facilitated discussion has not occurred between Mr Clayton and the other employee, however, a meeting was held in May 2017 with Mr Clayton, the other employee and a Human Resource representative to discuss his flexible work agreement and performance review.

The issues identified on the spreadsheet

  1. [29]
    The Department submitted that the majority of the issues on the spreadsheet, which lists examples of alleged workplace bullying, are Mr Clayton's personal perceptions of events and interactions, further supporting the interpersonal conflict between him and the other employee, as opposed to workplace bullying.

Conflict of interest

  1. [30]
    The Department submitted that Mr Clayton's concerns regarding a conflict of interest have not been dismissed by either Ms Slater or Ms Smith. The Department submitted that at the time Mr Clayton first raised his concern, the Principal Human Resources Advisor and Ms Slater, conducted a conflict of interest assessment in accordance with the Department's Conflict of Interest Procedure. The determination was that no conflict of interest arose because Ms Slater had no self-interest, personal affiliations or likelihood of personal gain or loss which may influence her decision. The Department further submitted that the Principal Human Resources Advisor explained to Mr Clayton Ms Slater's role and why it was appropriate for her to be the decision maker for employee grievances pertaining to the management team within her line of responsibility.
  1. [31]
    The Department submitted that, in any event, the reference by Mr Clayton in the spreadsheet to Ms Slater concerned an issue in 2016 which, for the reasons given above, was not put to the other employee for response given the passage of time and principles of natural justice.

Ms Slater's decision in general

  1. [32]
    After summarising the process adopted by Ms Slater in investigating Mr Clayton's grievances, the Department submitted:
  1. In line with 'Managing workplace investigations: a practical guide for the Queensland public sector' (relevant Public Service Commission guiding document at the time of the grievance) and in consideration of the information before her, Ms Slater determined that a management enquiry was the most suitable response in managing the Appellant's grievance.
  2. An alleged witness was interviewed in relation [sic] an incident however, they could not recall the incident taking place. Other witnesses were not called to proffer further information, as Ms Slater determined calling witnesses would not further assist the situation or her insight on the matters, noting many of the examples were from several years ago.
  3. Involving other employees would have unnecessarily delayed her ability to provide a final response to the grievance and overall support and assistance to the Appellant and [the other employee].
  4. Whilst the allegations of workplace bullying against [the other employee] were not substantiated, Ms Slater acknowledged there was interpersonal conflict between the Appellant and [the other employee] and the management shortcomings of [the other employee]. Ms Slater further advised the Appellant that [the other employee] was provided with her own set of directions to prevent further occurrences.
  5. On 24 November 2020, the Appellant was provided with an outcome letter advising of [the other employee's] responses and Ms Slater's decision. In this letter the Appellant was advised that Ms Slater distilled the issues raised into key themes and that the response may not specifically address every statement included in the Appellant's spreadsheet. The Respondent submits this does not translate to Ms Slater not considering all facets of the grievance. What it does reflect is a logical approach to responding to the Appellant and explaining the decision.
  6. The Respondent submits that the Appellant and [the other employee] were both advised of the resolution strategies to assist in re-building their relationship and the expectation to participate in good faith.

Ms Smith's decision in general

  1. [33]
    The Department submitted that Ms Smith thoroughly reviewed all the information submitted by Mr Clayton in the internal review and determined that Ms Slater did consider all the examples raised by him, that Ms Slater appropriately managed the process and considered Ms Slater's decision to be fair and reasonable.
  1. [34]
    By way of conclusion, the Department submitted that:
  • conducting an external investigation of matters that were over two years old and/or that did not support the allegations, would not be an effective use of public resources in that exposing Mr Clayton and the other employee to an external investigation has the potential to adversely impact their health and well‑being;
  • it was satisfied that Ms Slater and Ms Smith considered all the evidence available to them in making the determinations on the matters pertaining to Mr Clayton and complied with the obligations in line with the relevant directives and departmental policies and procedures about employee grievances; and
  • Mr Clayton's appeal is frivolous and vexatious, without benefit of any productive and constructive outcome to him or to the Department.

Mr Clayton's submissions in reply

  1. [35]
    The first 11 paragraphs of Mr Clayton's submissions in reply were a restatement of the issues that he had raised in his original grievance, in his request for an internal review and in his appeal.
  1. [36]
    Mr Clayton expressly dealt with the Department's submissions in relation to the conflict of interest allegation and the Department's submissions about the decisions of Ms Slater and Ms Smith.

The alleged conflict of interest

  1. [37]
    While Mr Clayton acknowledged that the Principal Human Resources Advisor explained to him Ms Slater's role as a decision maker, and why it was appropriate for her to be the decision maker for employee grievances pertaining to her management team, Mr Clayton still asserted that there was a conflict of interest in the matter.
  1. [38]
    Mr Clayton submits that Ms Slater chose to omit the referenced example where conflict existed and that '… this serves as a strong example of a number of failings by [the other employee] as the Appellants [sic] manager. This example demonstrates the lack of support of a manager, disclosure breaches to a colleague, improper reporting and investigation, lack of response, and so on.'
  1. [39]
    Mr Clayton further submitted that despite Ms Slater making commitments to him that his complaint would be investigated in full, by omitting to put '… this matter forward to [the other employee] the Appellant is not being served with natural justice and the serious matter is being overlooked.'

The decisions of Ms Slater and Ms Smith

  1. [40]
    Mr Clayton relevantly submitted that despite Ms Slater's commitment to him that the complaint would be presented to the other employee in full, in deciding what matters would be put forward to the other employee for response, Ms Slater has not upheld '… that commitment breaching the Appellants [sic] entitlement to natural justice.'
  1. [41]
    Mr Clayton then submitted:
  1. The Appellant rejects that Ms Slaters [sic] approach was most suitable. Ms Slater has not given consideration to her prior commitments to the Appellant.
  2. The Appellant rejects that involving other employees would have unnecessarily delayed her ability to provide a final response to the grievance. The Appellant provided the decision maker with an extension, at the decision makers [sic] request, to enable a full and proper investigation. At no point during the extended period of time was the Appellant approached to provide further context or information to the Decision Maker which may have further assisted the investigation.
  3. The Appellant accepts that Ms Slater acknowledged there was interpersonal conflict between the Appellant and [the other employee] and the management shortcomings of [the other employee] and that [the other employee] was provided with her own set of directions to prevent further occurrences.
  4. The Appellant accepts that on 24 November 2020, the Appellant was provided with an outcome letter advising of Ms Slater's decision. In this letter the Appellant was advised that Ms Slater distilled the issues raised into key themes and that the response may not specifically address every statement included in the Appellant's spreadsheet. The Appellant submits that this response contravenes the prior commitments made by the decision maker to the Appellant.
  5. Upon receipt of the Decision letter from Ms Slater, the Appellant notified his case manager of his intent to appeal the decision.
  6. The Appellant rejects that Ms Smith thoroughly reviewed all the information submitted by the Appellant in the internal review as the decision maker has omitted key aspects of the complaint from her own review. The Appellant further submits that he also provided Ms Smith with an extension, at her request, to enable a full and proper investigation. At no point during the extended period of time was the Appellant approached to provide further context or information which may have further assisted the investigation.
  1. [42]
    Mr Clayton then submitted that:
  • given his extended absence from work since June 2018, the Department's decision not to conduct an external investigation of the matters that were over two years old seriously compromises his entitlement to natural justice and contravenes the commitments made by Ms Slater to investigate the complaint in full, such that the significant reduction in the scope of the investigation does not acknowledge the full scale of his complaint;
  • the lack of full and thorough internal investigation has already had significant impacts on his health and well-being and that in order to obtain natural justice, he has been left with no alternative options other than to seek an external review;
  • he is not satisfied that Ms Slater and Ms Smith have considered all the evidence available to them in making their determinations and is further not satisfied that Ms Slater and Ms Smith have complied with their obligations in line with '… the relevant directives and Departmental policies and procedures;' and
  • he rejects the Department's submissions that his appeal is frivolous and vexatious because he continues to work with his General Practitioner, Psychologist and the Human Resources team case manager to determine a return to work strategy that supports his well-being in the short to longer-term.
  1. [43]
    In conclusion, Mr Clayton submitted:
  1. The appellant has had an unblemished 17 year career with DTMR and has only recently experienced mental and physical health issues, anxiety and depression. The Appellant has been hospitalised with ECG irregularities experienced at work and a [sic] has a permanent physical impairment from a fall at work due to stress and workload placed upon him. The changes to the Appellant's role add significant additional responsibilities will [sic] compromise the Appellants [sic] health and wellbeing.
  1. The Appellant would welcome discussion around ALL options that allow both parties to move forward positively.

Was the decision fair and reasonable?

  1. [44]
    In determining whether the decision was fair and reasonable, I will give consideration to each of the grounds of appeal referred to by Mr Clayton.

Mr Clayton was assured by Ms Slater that all aspects of his complaint would be presented to the other employee for response, that did not occur and key items had been omitted

  1. [45]
    As best as I can make out from Mr Clayton's submissions, this issue concerns the decision made by Ms Slater not to inquire into the matters referred to in the spreadsheet that occurred between an unspecified date in 2015 up to 26 May 2017. From the spreadsheet, that concerned 15 discrete issues or events.
  1. [46]
    In her decision dated 19 October 2020, Ms Slater informed Mr Clayton that the matters in his complaint which preceded 2018 would not be considered due to the natural justice requirement to be provided to the other employee. In making this decision, Ms Slater explained that it would be an unreasonable expectation, due to the passage of time, for the other employee to '… provide a detailed recollection of specific conversations and/or events which would include who may have witnessed the event and outcomes of those interactions.'
  1. [47]
    Ms Smith expressly dealt with this issue in the internal review. Ms Smith recorded in her decision, that in his request for the internal review, Mr Clayton stated:
  • 'My original complaint details 5 years of incidents where I feel I have been harassed, bullied and treated unfairly by [the other employee].'
  • 'The complaint demonstrates a pattern of behaviour over an extended period of time. I was assured by the decision maker in a meeting on Wednesday the 21st October that all entries in the supplied attachment would be reviewed. This has clearly not been done and takes away from the patterns of behaviour I have tried to outline.'
  • Key events where I have been treated unfairly have not been examined in the complaint response.
  1. [48]
    In her decision, Ms Smith, in dealing with this issue, stated:

I note Ms Slater explained in her letter dated 19 October 2020, that she was not going to include the 15 examples raised by you that occurred prior to 2018, as this would not be in line with the principles of natural justice. Having regard to the definition of natural justice and hearing rule outlined above, [the other employee] is entitled to present her case (provide a response to complaints about her). As stated by Ms Slater, this would be difficult for [the other employee] to do where the examples relate to various incidental events that occurred over two years ago.

I understand you were seeking to demonstrate a pattern of behavior by including these in your complaint. A more suitable course of action, if these behaviors were of concern, would have been to raise these matters at the time, as encouraged in the Managing Employee Complaints policy. Had the matters been raised as they occurred [the other employee] would have had the opportunity to respond accordingly and the management team would have been in a position to provide assistance to you and [the other employee] in resolving the issues.

  1. [49]
    Ms Slater, in attempting to deal with those complaints, organised for the Principal Human Resources Advisor to meet with Mr Clayton to provide further particulars of those allegations. Further particulars were provided. They were inserted into the spreadsheet which was attached to the Department's submissions. It may well have been that after the further provision of those particulars, the other employee would have been in a better position to provide a response to those matters.
  1. [50]
    Mr Clayton submitted that taking into account these matters demonstrated a pattern of behaviour over a period of time and that it was his right to make such a complaint. Mr Clayton lodged his written grievance on 11 May 2020. The first of the 15 discrete events referred to above would have occurred at least five years before the date of that grievance and the last event occurred approximately three years before the date of the grievance. On the face of it, given the passage of time, I agree with Ms Slater, that it may have been difficult for the other employee, of whom most of the allegations in respect of those events were directed, to recall those precise events or to identify witnesses that may tend to assist her recollection of those events.
  1. [51]
    However, that difficulty may equally have been ameliorated by the provision of the further particulars as sought by Ms Slater. As I understand the material, none of the 15 events that occurred between an unspecified date in 2015 and 26 May 2017 were enquired into by Ms Slater. That is to say, on the material, it appears to me that none of those issues, even as further particularised, were put to the other employee for her response.
  1. [52]
    No explanation was given by Ms Slater, in her decision dated 19 October 2020, as to why she picked 2018 as being the cut-off date in respect of her investigation of Mr Clayton's complaints. It is unclear to me as to whether the decision was or was not influenced by the provision of the further particulars by Mr Clayton.
  1. [53]
    Given that Mr Clayton's complaint concerned an alleged pattern of behaviour over a period of time, and given Mr Clayton's unchallenged submission that he was assured by Ms Slater that all aspects of his complaint would be put to the other employee for a response, it seems to me that with the provision of the further particulars, it would have been fair and reasonable for Ms Slater to have at least put those matters to the other employee for the other employee's response. One can only speculate what the response may have been, however, in my opinion, in being fair and reasonable to Mr Clayton, that should have at least been done. That course was not undertaken by Ms Slater.
  1. [54]
    For this reason, it seems to me that this aspect of Ms Slater's decision was not fair and reasonable to Mr Clayton.
  1. [55]
    Ms Smith agreed with Ms Slater's rationale for not investigating the 15 events that occurred between 2015 and 26 May 2017.
  1. [56]
    For the same reasons given above in relation to this aspect of Ms Slater's decision, Ms Smith's decision was equally not fair and reasonable to Mr Clayton.

Mr Clayton raised concerns regarding a conflict of interest in relation to Ms Slater as she was referenced in the complaint and that claim of conflict of interest had been dismissed

  1. [57]
    In considering this ground, I acknowledge that Ms Slater did not enquire into the 15 discrete events contained in the spreadsheet between 2015 and 26 May 2017. This matter concerns one of those events; namely, an allegation that, on an unspecified date in 2016, Mr Clayton made a sexist remark to an employee and that employee had told Ms Slater of the allegation.
  1. [58]
    Mr Clayton's precise ground of appeal was that Ms Slater had a conflict of interest because she was a potential witness in the alleged event in 2016. However, that matter was excluded from Ms Slater's review. Therefore, for that reason, I am not of the opinion a conflict of interest arose which would have precluded Ms Slater from being involved in the matters of which she did in fact enquire. To the extent of the events Ms Slater did manage, I find that aspect of her decision was fair and reasonable.

Third-party witnesses referenced in Mr Clayton's complaint have not been engaged

  1. [59]
    The Department submitted that an alleged witness was interviewed in relation to an incident, however, that witness could not recall the incident taking place. The Department further submitted that other witnesses were not called for further information because Ms Slater determined calling witnesses '… would not further assist the situation or her insight on the matters, noting many of the examples were from several years ago' and that involving other employees would have unnecessarily delayed her ability to provide a final response to the grievance and overall support and assistance to Mr Clayton and to the other employee.
  1. [60]
    With the greatest respect to Ms Slater, if this was her rationale, then it does not make any reasonable sense. Ms Slater could not know if any nominated witnesses to the alleged events had any information about the alleged events unless she asked them. Further, the investigation of Mr Clayton's grievances should not have been forgone on the basis that interviewing the nominated witnesses may have delayed her final decision.
  1. [61]
    For these reasons, this aspect of Ms Slater's decision was not fair and reasonable.
  1. [62]
    Ms Smith acknowledged Ms Slater's rationale, as set out above, for not interviewing the nominated witnesses. Ms Smith determined, taking into account all forms of information available to her, and Ms Slater's application of the procedure, policy and guide she referred to in her decision, that Ms Slater had considered all information provided by Mr Clayton and had all the necessary information required to make an informed decision about Mr Clayton's complaint.
  1. [63]
    For the same reasons given above in relation to this aspect of Ms Slater's decision, Ms Smith's decision was not fair and reasonable. Ms Slater should have interviewed the nominated witnesses.

The lack of a full investigation did not allow Mr Clayton to demonstrate a pattern, eliminating his right to natural justice

  1. [64]
    For the reasons I have given in paragraphs [45] to [56] of these reasons, I am of the view that Ms Slater's decision, not to investigate or enquire into the matters Mr Clayton raised about events between 2015 and 26 May 2017, was not fair and reasonable. Ms Smith's affirmation of that decision was not fair and reasonable.

The recommended conciliation that has been attempted previously did not follow Directives and little progress was made as outlined in Mr Clayton's original complaint

  1. [65]
    This ground is vague. I am uncertain if Mr Clayton is referring to the conciliation, referred to by the Department in its submissions, that apparently occurred between himself, the other employee and a Human Resource representative in May 2017.
  1. [66]
    As a matter of general principle, my view is that any properly organised conciliation or mediation, conducted by an independent conciliator or mediator, is a sound course in resolving issues of the kind raised by Mr Clayton. Further, in many cases, such independent conciliation or mediation is a far better course in resolving such matters compared to the other alternatives, namely, further or independent external investigations or, as a last resort, litigation.
  1. [67]
    Ms Smith, in her decision, certainly affirmed Ms Slater's instruction that the facilitated discussion be held between Mr Clayton and the other employee as a first step to rebuilding their working relationship.
  1. [68]
    For the reasons I have given above, I do not find that this ground of appeal raises an aspect of Ms Smith's decision that was not fair or not reasonable.

Given that aspects of Ms Smith's decision were not fair and reasonable, what decision should be made?

  1. [69]
    Section 562C of the IR Act relevantly provides:

562C Public service appeals-decision on appeal

  1. (1)
    In deciding a public service appeal, the commission may-
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    for an appeal against a promotion decision-set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive of the commission chief executive under the Public Service Act 2008 that the commission considers appropriate; or
  1. (c)
    for another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [70]
    Properly construed, 'the decision' in s 562C(1)(c) of the IR Act is Ms Smith's decision. In deciding this appeal, I must make a decision that is fair and reasonable.[3]
  1. [71]
    It is true that the issues about the other employee, of whom Mr Clayton complains and who is Mr Clayton's direct manager, go back to 2015. While I acknowledge Mr Clayton's right as an employee to make the complaints that he has, there comes a point in time when proper and reasonable consideration needs to be given to whether a new, external investigation of all the allegations he makes would be practical in re-establishing a proper working relationship between Mr Clayton and the other employee upon Mr Clayton's return to work. This seems to be acknowledged, in part, by Mr Clayton. Mr Clayton, in the conclusion to his submissions, submitted that he '… would welcome discussion around ALL options that allow both parties to move forward positively.' An external investigation, irrespective of its conclusion, may not assist in the restoration of the working relationship between Mr Clayton and the other employee upon Mr Clayton's return to work.
  1. [72]
    Ms Smith stated that the workplace investigation would not be occurring and that the management team were supportive of an alternative reporting arrangement on a short‑term temporary basis upon Mr Clayton's return to work whilst he and the other employee worked on repairing their relationship. This arises from Ms Smith's decision that a facilitated discussion be held between Mr Clayton and the other employee by a suitable member of the Executive Leadership Team. That facilitated discussion is the practical result of Ms Smith's decision. For the reasons I have given above, a decision of that kind is practical.
  1. [73]
    However, given Mr Clayton's openness for a discussion around all options to allow both parties to move forward positively, my view is that upon Mr Clayton's return to work, whilst the short-term alternative reporting arrangement is in place, the working relationship between Mr Clayton and the other employee should be the subject of mediation undertaken by an independent mediator, namely a mediator who is not an employee of the State of Queensland. The mediation should concern the how the working relationship between Mr Clayton and the other employee can be restored or if that cannot be achieved, whether some other reporting relationship may be implemented.
  1. [74]
    The result is that I will set the decision aside and substitute another decision.
  1. [75]
    The substituted decision is that:
  • Ms Smith's decision is confirmed other than her decision contained in the fourth paragraph of page 7 of 8 of the decision letter concerning the facilitated discussion by a member of the Executive Leadership Team;
  • a mediator, who is not an employee of the State of Queensland, is to mediate between Mr Clayton and the other employee;
  • the identity of that mediator must be agreed to by Mr Clayton and the other employee from a panel of three independent mediators nominated by the Department;
  • the cost of the agreed independent mediator is to be borne by the Department;
  • the alternative reporting arrangement, referred to in the second sentence of the fourth paragraph on page 7 of 8 of Ms Smith's decision, should remain in place until the completion of the mediation process;
  • the mediation should occur upon Mr Clayton's return to work and during Mr Clayton's and the other employee's work time; and
  • the mediation must consider:
  1. —
    how the working relationship between Mr Clayton and the other employee can be restored; or
  1. —
    if the restoration of the working relationship between Mr Clayton and the other employee is impracticable, then, in consultation with the Department, what other reporting arrangement may be implemented.

Conclusion

  1. [76]
    The question in this appeal was whether Ms Smith's decision was fair and reasonable.
  1. [77]
    For the reasons I have given above:
  • certain aspects of Ms Smith's decision were not fair and reasonable; and
  • the appropriate course is to set Ms Smith's decision aside and substitute another decision, namely, the decision I have referred to in paragraph [75] of these reasons.

Order

  1. [78]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    the decision appealed against is set aside; and
  1. (b)
    another decision is substituted, namely, the decision referred to in paragraph [75] of the reasons for decision.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [3]-[7].

[2] I have, pursuant to s 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011, exercised, at my own volition, the discretion to modify this decision and to not publish the name of this employee because Ms Slater found that this employee's conduct towards Mr Clayton, and the employee's instructions and decisions, were fair and reasonable.

[3] Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126, [71]-[72] (Deputy President Merrell).

Close

Editorial Notes

  • Published Case Name:

    Clayton v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Clayton v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2021] QIRC 228

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    28 Jun 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Scott v State of Queensland (Department of Communities, Housing and Digital Economy) [2021] QIRC 126
2 citations
Jump To
Cite 1 - [2021] QIRC 126
Cite 2 - [2021] QIRC 126

Cases Citing

Case NameFull CitationFrequency
Egan v State of Queensland (Department of Education) [2024] QIRC 1682 citations
1

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