White v State of Queensland (Department of Education)
[2021] QIRC 259
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- Unreported Judgment
- White v State of Queensland (Department of Education)[2021] QIRC 259
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White v State of Queensland (Department of Education)[2021] QIRC 259
White v State of Queensland (Department of Education)[2021] QIRC 259
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | White v State of Queensland (Department of Education) [2021] QIRC 259 |
PARTIES: | White, Loretta (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO.: | PSA/2021/189 |
PROCEEDING: | Public Service Appeal - Appeal against a fair treatment decision |
DELIVERED ON: | 21 July 2021 |
HEARING DATE: | 21 July 2021 |
MEMBER: | Merrell DP |
HEARD AT: | Brisbane |
DATES OF WRITTEN SUBMISSIONS: | Appellant's written submissions filed on 15 June 2021 and Respondent's written submissions filed on 5 July 2021 |
ORDER: | Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, the appellant's appeal against the decision will not be heard because the appellant has not, prior to lodging the appeal, used the individual grievance policy and procedure in relation to the decision appealed against. |
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appellant employed as a principal at a State primary school – allegations of inappropriate conduct made against the appellant – findings made by decision maker – formal warning and other directions given – appeal against fair treatment decision alleging decision appealed against was a disciplinary finding where the appellant was not required to use her employer's individual employee grievance process before lodging her appeal – respondent contends that no disciplinary findings were made and that the decision was management action – whether decision involved a disciplinary finding – whether appellant was required to comply with the respondent's grievance process before appealing decision as a fair treatment decision – appellant required to use the respondent's grievance process before appealing decision as a fair treatment decision – appeal not heard because of the compelling reason that the appellant was required to use the respondent's grievance process before appealing the decision as a fair treatment decision |
LEGISLATION: | Directive 07/20 Appeals, cl 5 Directive 11/20 Individual employee grievances, cl 6 Directive 14/20 Discipline, cl 4 Industrial Relations Act 2016 s 562A and s 989 Public Service Act 2008, s 187, s 188, s 193, s 194, s 195, s 196, s 197, s 214B and s 218A |
HIS HONOUR:
At all times relevant to this appeal, Ms Loretta White was employed by the State of Queensland through the Department of Education which I will refer to as ‘the department’, as the principal of the Coomera State School. Ms White has been employed in the department for 29 years and, like many teachers employed by the department, has taught in rural and remote areas of Queensland. Ms White informed me today that until the events relevant to her present appeal, she has not had any management action taken against her.
In July and November 2020 complaints about Ms White’s alleged conduct were received by the department’s Integrity and Employee Relations Unit and by the department’s South East Regional office. Those matters were managed at a regional level by conducting what has been referred to as a “management enquiry”, during which Ms White provided a detailed written response and other documentary evidence in response to the allegations made against her. As a consequence of that enquiry, by decision dated 30 April 2021, Mr Terry Cornish, Acting Regional Director, South East Region of the department, found that a number of allegations of inappropriate conduct against Ms White were substantiated and decided to implement a formal warning against Ms White in addition to implementing other directions, namely, (a) that Ms White participate in a leadership coaching cycle, (b) that Ms White engage in a facilitated discussion with the school based Queensland Teachers Union of Employees representatives to ensure the effective functioning of the local consultative committee, and (c) that the school undergo a complete human resource audit to ensure appropriate staffing levels, funding and processes are in place. I will refer to that as ‘the decision’.
By appeal filed on 21 May 2021, Ms White appealed against the decision as a fair treatment decision. In her grounds of appeal Ms White contends, (a) the decision does not fairly consider the evidence provided by her and her response, (b) the
decision did not properly identify relevant witnesses, (c) the decision maker did not interview relevant witnesses, (d) the decision maker reached conclusions that did not have evidence to support them, and (e) the decision was unfair and unreasonable in all the circumstances.
By directions order dated 25 May 2021 I directed the parties file and serve written submissions in relation to Ms White’s appeal. The parties did so. Ms White also requested an oral hearing of her appeal. I heard her appeal today. In short, the department contends that Ms White’s appeal is premature because it is not, as contended in Ms White’s appeal notice, an appeal against a disciplinary finding, the consequence of which is that before Ms White can appeal, she is required to comply with her employer’s individual grievance process. Because of this contention, the department in its submissions did not address the substantive grounds in Ms White’s appeal notice.
As I indicated to the parties today, the matter I am going to determine is the department’s contention that Ms White’s appeal is incompetent because she was required to, and she did not, use her employer’s individual grievance process before making her appeal.
Chapter 7, part 1 of the Public Service Act 2008, which I will refer to as the ‘PS Act’, provides that certain public service employees can appeal against certain decisions made in relation to their employment. Section 193 of the PS Act provides that a person may appeal against the decision if an appeal may be made against the decision under section 194 of the PS Act and the person is entitled to appeal against a decision under section 196 of the PS Act. Section 194 of the PS Act sets out the decisions against which appeals may be made. Relevantly, section 194, subsection (1), paragraph (eb) provides that an appeal may be made against a decision a public service employee believes is unfair and unreasonable, called a “fair treatment decision”. Section 195 of the PS Act sets out decisions against which appeals cannot be made. Relevantly, section 195, subsection (3A) provides:
A person cannot appeal against the fair treatment decision-
(a) made under chapter 5 part 7; or
(b) made under chapter 6, part 2, other than a finding under section 187 that a disciplinary ground exists for the person.
Section 196, paragraph (eb) provides that a public service employee who is aggrieved by the decision can appeal against the fair treatment decision. Pursuant to section 197 of the PS Act an appeal under chapter 7, part 1 of the PS Act is to be heard and decided under the Industrial Relations Act 2016, chapter 11 by the Queensland Industrial Relations Commission. Section 218A, subsection (1) of the PS Act provides that the chief executive of the public service commission must make a directive about how departments must deal with grievances of officers or employees of the department about decisions made by officers or employees of the department or the conduct of officers or employees of the department.
Section 218A, subsection (2) of the PS Act provides that a directive made under section 218A may apply to a decision mentioned in section 194 of the PS Act. In this regard, the directive made by the chief executive of the public service commission is directive 11/20 Individual employee grievances, which I will refer to as ‘the grievance directive’. Clause 6 of the grievance directive relevantly provides as the heading “Matters that cannot be the subject of an individual employee grievance”. Subclause 6.2 of the grievance directive provides:
Under the PS Act an employee seeking to lodge a fair treatment appeal is generally required to have used their agency individual employee grievance mechanism prior to lodging an appeal.
Subclause 6.3 of the grievance directive provides:
An employee may choose not to use their agency’s complaint mechanism where they are seeking to appeal a finding by the chief executive under section 187 of the PS Act that a disciplinary ground exists for an employee. Section 195(3A)(b) of the PS Act allows the employee aggrieved by this decision to lodge a public service appeal in relation to the decision.
Section 214B, subsection (1) of the PS Act provides that the chief executive of the public service commission must make a directive for chapter 7, part 1 of the PS Act. Section 214B, subsection (2) provides that the directive must make provision for the decisions, if any, against which an appeal may be made, and the persons who are entitled to appeal against the decision mentioned in section 194, subsection (1) of the PS Act. Relevantly, the chief executive of the public service commission has made directive 07/20 appeals which I will refer to as ‘the appeals directive’. Clause 4 of the appeals directive is headed ‘Principles’ and subclause 4.5 relevantly provides:
In addition to a number of specific appeal rights such as promotion and discipline appeals, the PS Act also provides an appeal right for employees where they believe a decision is unfair and unreasonable (a fair treatment decision). This is a general appeal right that exists subject to some specific exemptions set out in section 195(3A) of the PS Act. For example, discipline decisions are generally excluded from a fair treatment appeal as an employee can already appeal a decision to take disciplinary action against them under section 194(1)(b). However, the PS Act does provide a fair treatment appeal for a disciplinary finding decision.
Clause 5 of the appeals directive headed, “Who may lodge a public service appeal” provides at subclause 5.1:
A public service employee who is listed in section 196 of the PS Act (Appendix A) or is eligible to appeal by reason of section 55 of the PS Act, may lodge a public service appeal.
Subclause 5.2, paragraph (h) of the appeals directive relevantly provides an appeal may only be lodged by the following persons:
For a decision under section 194(1)(eb) (fair treatment decision) – a public service employee who is aggrieved by the decision. The public service employee should comply with the agency’s complaint management process prior to lodging the appeal.
These provisions are reflected in the Queensland Industrial Relations Commission form 89 as approved pursuant to section 989, subsection (1) of the Industrial Relations Act 2016 which is the appeal notice. Part B of form 89 requires an appellant to indicate the type of decision being appealed. In respect of an appeal against a fair treatment decision, form 89 provides that an appellant must indicate the type of decision being appealed against. Namely, “I am appealing a fair treatment decision and I have used my employer’s individual employee grievances process before lodging this appeal”; or “I am appealing a fair treatment decision and I am not required to use my employer’s individual employee grievance process before lodging this appeal against a disciplinary finding”.
In making her appeal, Ms White contended she was appealing against a disciplinary finding and that she was not required to use her employer’s individual employee grievances process before lodging her appeal. In summary, the department submitted that the appeal should be dismissed pursuant to section 562A, subsection (3), paragraph (b), subparagraph (ii) of the Industrial Relations Act 2016 because Ms White’s appeal is misconceived or lacking in substance. This is said to arise because Ms White was required to use the department’s individual employee grievance process before lodging a fair treatment appeal against the decision. The department developed that contention by submitting that: (a) schedule 4 to the PS Act defines the phrase “disciplinary finding” to mean “a finding that a disciplinary ground exists” and defines the phrase “disciplinary ground” to mean “a ground for disciplining a public service officer under section 187”.
The department also submitted that Mr Cornish did not make a disciplinary finding and did not determine that a ground for disciplinary action existed in accordance with the PS Act in his decision. Rather, the department submits that Mr Cornish issued a formal warning to Ms White by way of management action, being local management action as contemplated in subclauses 4.1 and 4.2 of directive 14/20 discipline, which I will refer to as the discipline directive. The department further submitted that subclause 4.1 of the discipline directive relevantly provides:
4.1 Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best hope for: the cessation of unacceptable conduct, early resolution, preserving working relationships, and avoiding an unnecessary and disproportionately protracted dispute.
The department also referred to subclause 4.2 of the discipline directive which relevantly provides:
4.2 Discipline is not appropriate for matters that may be dealt with, (a) through management action which may include the use of alternative dispute resolution (ADR), use of warnings or other management action that is reasonable in the circumstances, and (b) under the directive on positive performance management.
The department finally submitted that it was clear that Mr Cornish’s letter to Ms White dated 30 April 2021 represented management action. The department also noted that in addition to lodging her appeal, Ms White on the same day she made her appeal to this Commission, lodged a stage 3 grievance pursuant to clause 7.2 of the Teaching in State Education Award – State 2016 with the subject matter the same if not substantially similar to that which is contained in Ms White’s submissions in this appeal, and that Ms White’s grievance in that regard remains outstanding.
Ms White’s written submissions, because she filed them first, did not deal with the issues raised by the department in its submissions. Ms White’s written submissions dealt with the substantive grounds of her appeal. However, today Ms White did address the issues raised by the department in its submissions.
In oral submissions Ms White submitted, (a) on 21 May 2021 she lodged an internal grievance against Mr Cornish’s decision, but contrary to the relevant grievance process, received no response from the department within 14 days. Ms White also submitted that the complaints the subject of her grievance generally concerned her allegations that in the process leading to Mr Cornish’s decision she had been denied procedural fairness, there was bias, and that the matters investigated were outside the terms of reference of what was to be investigated about her alleged conduct. Ms White also submitted that about six weeks after 21 May 2021 she was informed that the department would appoint a person to conduct an independent investigation about her complaints.
Ms White further submitted that on 5 July 2021 she lodged a further complaint letter raising similar procedural fairness issues in relation to Mr Cornish’s decision but the response from the Department dated 15 July 2021 was that it was not able to investigate those complaints given the appeal she has made to this Commission and that the department encouraged her not to proceed with her appeal. Ms White also submitted that because the department did not respond to her grievance dated 21 May 2021 within 14 days and did not respond positively to her compliant dated 5 July 2021, she should be allowed to proceed to the Commission hearing the merits of her appeal against Mr Cornish’s decision.
Finally, Ms White contended that, (a) Mr Cornish’s decision to give her a formal warning was disciplinary action within the meaning of section 188 of the Public Service Act because subclause 4.1 of the discipline directive only referred to the use of warnings as management action and not formal warnings. Furthermore, Ms White submitted today that Mr Cornish’s decision cannot be management action as contemplated in subclause 4.1 of the discipline directive because Mr Cornish did not occupy the position of Assistant Regional Manager and therefore
was not her manager as being a person who can take management action against her within the meaning of subclause 4.1 of the discipline directive.
Today, the department reiterated that contained in its written submissions and further submitted that, (a) there was a delay in responding to Ms White’s grievance dated 21 May 2021 due to confusion about the instrument under which that grievance was initiated, (b) Ms White’s grievance dated 21 May 2021 and her compliant dated 5 July 2021 about the processes leading to Mr Cornish’s decision and Mr Cornish’s decision itself would be subject to the grievance process contained in the grievance directive commencing at stage 1 which is referred to as local action, and (c) the formal warning in Mr Cornish’s letter was not disciplinary action within the meaning of section 188 of the PS Act because Mr Cornish did not make a disciplinary finding within the meaning of section 187 of the PS Act.
I accept the department’s submissions that Mr Cornish, in making the decision, did not make a finding pursuant to section 187 of the Public Service Act that a disciplinary grounding existed for Ms White. This is because in making his decision, Mr Cornish did not determine that a disciplinary ground of the kind referred to in section 187 of the PS Act existed in respect of Ms White. Furthermore, for this reason I accept the department’s submission that in making his decision, Mr Cornish was taking management action against Ms White, being management action of the kind contemplated in subclauses 4.1 and 4.2 of the discipline directive. The consequence of these findings is that pursuant to either subclause 6.2 of the grievance directive or pursuant to subclause 5.2, paragraph (h) of the appeals directive, Ms White should have complied with the department’s individual grievance policy and procedure or the department’s complaint management procedure prior to lodging her appeal. Ms White has not done so.
In my opinion, where the chief executive of the public service commission has made directives relevant to appeals about a decision not involving disciplinary finding grounds which an employee believes is not fair and reasonable, then the employee should comply with the procedures set out in those directives. Relevantly to Ms White appeal, she should have, as she has appeared to have done in any event, used the relevant grievance policy or procedure of her employer in relation to all of her complaints about Mr Cornish’s decision prior to lodging her appeal to this Commission. Furthermore, I do not accept Ms White’s contention that because the department did not respond to the internal grievance she lodged on 21 May 2021 within 14 days, that fact exempts her from the requirement referred to in subclause 6.2 of the grievance directive or subclause 4.2, paragraph (h) of the appeals directive, to have complied with the department’s complaint management process prior to lodging her appeal. Neither of those directives provides for such a result.
Furthermore, there may be legitimate reasons why an agency cannot respond to a grievance at a particular stage within the timeframe specified. It seems to me that it would defeat the purpose of the abovementioned provisions of the grievance directive and of the appeals directive if an employee was able to avoid complying with an agency’s complaint management process because the agency did not respond
within a relevant timeframe. In addition, I do not accept Ms White’s distinction between a warning and a formal warning. On a plain reading of Mr Cornish’s letter, the formal warning he gave to Ms White cannot have been the imposition of disciplinary action within the meaning of section 188 of the PS Act because it was not preceded by Mr Cornish making a disciplinary finding in respect of one of the grounds for discipline contained in section 187 of the PS Act.
Finally, I cannot accept Ms White’s contention that Mr Cornish’s decision cannot have been management action as contemplated in subclause 4.1 of the discipline directive because Mr Cornish was not Ms White’s immediate line manager, namely, the Assistant Regional Manager. The plural noun “managers” in subclause 4.1 of the discipline directive is not defined in the discipline directive. In my view, that word is used in subclause 4.1 of the discipline directive in its ordinary meaning, therefore it is not limited to a public service employee’s immediate line manager and can include any manager with managerial responsibility over the public service employee. Mr Cornish, being the Acting Regional Manager at the time of his decision, would meet the description of one of Ms White’s managers as contemplated in subclause 4.1 of the discipline directive.
I have no doubt that Ms White’s complaints of denial of procedural fairness, bias, and the consideration of matters outside the terms of reference are complaints she genuinely holds in relation to the process leading to Mr Cornish’s decision. Similarly, I have no doubt that Ms White’s complaints about the merits of Mr Cornish’s decision are genuinely held by her. For the reasons I have given however, those are not matters I can determine today. I make no comment one way or the other about the veracity of the complaints Ms White makes.
Given the position of the department that the matters the subject of Ms White’s grievance dated 21 May 2021 and her other complaint dated 5 July 2021 will be the subject of the internal grievance process contemplated in the grievance directive, then Ms White’s complaints about all of those matters must be genuinely considered by the department as part of that internal grievance process. If, at the end of that process, Ms White is still aggrieved, then she has the right to appeal the final decision on the grievance process as a fair treatment decision to this Commission. However, for the reasons given above, the result is that pursuant to section 562A, subsection (3), paragraph (b), subparagraph (iii) of the Industrial Relations Act 2016, Ms White’s appeal should not be heard for the compelling reason that she has not used the individual grievance mechanism or complaints process prior to lodging her appeal.
I make the following order. Pursuant to section 562A, subsection (3), paragraph (b), subparagraph (iii) of the Industrial Relations Act 2016, the appellant’s appeal against the decision will not be heard because the appellant has not, prior to lodging the appeal, used the individual grievance policy and procedure in relation to the decision appealed against.