Rodgers v State of Queensland (Department of Transport and Main Roads)
[2021] QIRC 269
To print this judgment please return to the case and click on the PDF icon
next to the
case name. For court use, a full PDF copy is required or preferred.
Exit Distraction Free Reading Mode
Please Note: You are about to print a copy of the onscreen
version of
this judgment. For court use, a full PDF copy of the judgment is required or preferred. Please
return to
the case for PDF printing options.
- Unreported Judgment
- Rodgers v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 269
- Add to List
Rodgers v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 269
Rodgers v State of Queensland (Department of Transport and Main Roads)[2021] QIRC 269
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rodgers v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 269 |
PARTIES: | Rodgers, Sarah Louise (Appellant) v State of Queensland (Department of Transport and Main Roads) (Respondent) |
CASE NO.: | PSA/2021/109 |
PROCEEDING: | Public Service Appeal – Disciplinary Decision |
DELIVERED ON: | 4 August 2021 |
MEMBER: HEARD AT: | Power IC On the papers |
OUTCOME: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a disciplinary decision under s 194 of the Public Service Act 2008 (Qld) – allegations substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – penalty imposed was fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 187, 188 and 194 Transport Operations (Passenger Transport) Act 1994 (Qld), s 111B Youth Justice Act 1992 (Qld) |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Ms Sarah Louise Rodgers ('the Appellant') is employed by the State of Queensland (Department of Transport and Main Roads) ('the Respondent') as a Senior Network Officer ('SNO') within TransLink.
- [2]By letter dated 3 March 2021, Mr Graham Davis, General Manager (Passenger Transport Services) of the Respondent, informed the Appellant of the decision to impose a disciplinary penalty of a reduction of remuneration level from OO5(4) to OO5(1) for a period of 12 months and a reprimand ('the decision'), pursuant to s 188(1) of the Public Service Act 2008 (Qld) ('the PS Act').
- [3]By appeal notice filed on 23 March 2021, the Appellant appealed against the decision, pursuant to s 194(1)(b)(i) of the PS Act.
Appeal principles
- [4]Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
- [5]The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
- [6]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision findings and the decision to impose the disciplinary penalty of reduction of remuneration level and a reprimand was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [7]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
- (c)set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Relevant provision of the PS Act
- [8]Section 187 of the PS Act provides:
Grounds for discipline
- (1)A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has-
- (a)performed the employee's duties carelessly, incompetently or inefficiently; or
- (b)been guilty of misconduct; or
- (c)been absent from duty without approved leave and without reasonable excuse; or
- (d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
- (e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(ea) contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee's appointment, secondment or employment by, in response to the requirement-
- (i)failing to disclose a serious disciplinary action; or
- (ii)giving false or misleading information; or
- (f)contravened, without reasonable excuse-
- (i)a provision of this Act; or
- (ii)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
- (iii)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
- (iii)
- (2)A disciplinary ground arises when the act or omission constituting the ground is done or made.
- (3)Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)-
- (a)a public service employee under section 187A; or
- (b)a former public service employee under section 188A.
- (4)In this section-
misconduct means-
- (a)inappropriate or improper conduct in an official capacity; or
- (b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct-
victimising another public service employee in the course of the other employee’s employment in the public service
relevant standard of conduct, for a public service employee, means—
- (a)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994 ; or
- (b)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994 .
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
Disciplinary decision
- [9]In the decision that is the subject of this appeal, Mr Davis determined that the following allegations were substantiated:
- On 31 October 2019, you misused your authority on a transport service by obstructing three juveniles on a transit vehicle from exiting the vehicle.
- On 31 October 2019, you misused your authority by blocking a male passenger from moving towards the front of a public passenger vehicle.
- [10]Mr Davis determined that the following disciplinary penalty be imposed under s 188(1) of the PS Act:
- A reprimand; and
- A reduction of your remuneration (paypoint) from OO5.4 to OO5.1 for a period of 12 months. Paypoint progression at the completion of the 12 month period will be in accordance with the Queensland Public Service Officers and Other Employees Award – State 2015.
Grounds of Appeal
- [11]In the appeal notice, the Appellant outlined the following grounds of appeal:
The basis of the appeal is the decision is
- Harsh, unfair and unreasonable,
- the disciplinary process was without natural justice
- the disciplinary process had procedural issues
- conflicts of interests were not mitigated throughout the process
- the substantiated allegations are in contradiction to the evidence and applicable legislation
- the investigation/determination was inconsistent with standard operating procedures
- the sanction is inconsistent with one imposed from other employees guilty of misconduct
- The sanction will have long term financial hardship effects to which the delegate has dismissed
- Training and feedback in relation to the incident has not been offered despite several requests
- The evidence used during the process was incorrectly applied
- The length of time for the resolution of the investigation
- Emails requesting information during the process took an extended period of time to address, and some still have not been addressed or responded to.
- [12]The Appellant appears to have provided a chronology of the disciplinary process, concluding that:
The delegate did not afford natural justice throughout the process. The process was flawed by evidence that was easily identified to be incorrect, and the conclusions drawn by the delegate were not reasonable in the circumstances, furthermore the infliction of the proposed penalty is not in line with previous disciplinary findings within the unit and the final written correspondence of disciplinary findings by the delegate contains some questionable statements.
From start to conclusion this process lasted: 1 year, 3 months and 2 days or a total of 460 days or 15 months…
Submissions
- [13]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.
Respondent's submissions
- [14]The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that:
- the Appellant's conduct was serious and highly inappropriate, particularly given that the Appellant had completed relevant SNO training in appropriate behaviours and exercise of powers and was aware at all relevant times, that she was expected to comply with relevant policies, procedures and statutory obligations regarding conduct;
- the Appellant was required to exercise her powers and responsibilities as a SNO lawfully and with care, demonstrate courtesy and respect for members of the public, including in respect of her communication, and actively promote a positive image of public transport and the Respondent. The Appellant was expected to demonstrate the highest level of ethical conduct and to maintain the public's trust and confidence in the Respondent, which the Appellant failed to do;
- with respect to allegation one, Mr Davis considered on the available evidence that the Appellant did not have any power to obstruct the juvenile passengers from exiting the bus. The Appellant had failed to comply with the youth justice principles in the Youth Justice Act 1992 (Qld) and breached the Appellant's obligations under the Queensland Public Service Code of Conduct ('the Code of Conduct') from the inappropriateness of the conduct;
- throughout the disciplinary process, the Appellant denied the conduct that was the subject of allegation one and provided implausible alternative explanations that were inconsistent with other objective, probative evidence before Mr Davis, which reflected poorly on her credit;
- with respect to allegation two, Mr Davis found on the evidence that the Appellant's conduct demonstrated a misuse of her authority as a SNO and Transit Officer ('TO'). The Appellant did not have any power to obstruct the passenger inside the bus. The Appellant's actions, at best, demonstrated a complete lack of judgement and inability to read the situation and, at worst, amounted to a deliberate decision to block the passenger's movement;
- the incidents the subject of the allegations were common situations faced by SNOs, and the Appellant's inappropriate responses to the incidents reflected adversely on the Respondent's public reputation;
- the Appellant made numerous submissions throughout the investigation and disciplinary process to attempt to justify and lessen the seriousness of her conduct, all of which were disproven or rendered completely implausible by the available evidence. The Appellant's inconsistency and lack of candour during the disciplinary process has significantly undermined Mr Davis' trust and confidence in her as a SNO, and supports the appropriateness of Mr Davis' decision;
- the Appellant failed to take responsibility for her actions and in her responses to the show cause notices, blamed the Respondent for not providing sufficient training which was disingenuous. The Appellant had received extensive training in communication and de-escalation techniques and admitted she was current with all her training;
- the Respondent had previously cautioned the Appellant about her poor communication with passengers on 19 December 2018. Mr Davis had regard to the Appellant's history of inappropriate conduct when making his decision on penalty and considered on the evidence that the Appellant's behavioural history demonstrated a continuing pattern of inappropriate conduct and a lack of insight;
- the disciplinary penalty imposed is towards the lower end of the scale of action available and is in no way excessive, having regard to the severity of the conduct;
- Mr Davis' discipline penalty decision was not harsh, unfair and/or unreasonable as the Appellant was afforded procedural fairness throughout the entire disciplinary process. Further, Mr Davis afforded the Appellant opportunities to provide further information when it appeared that the Appellant may not have fully responded to the allegations and/or provided all relevant material;
- the matter was investigated promptly and the disciplinary process conducted as expeditiously as reasonably possible. Any delay between receiving the investigation report and instigating the disciplinary process was due to the Respondent's need to collate all material relevant to the matter and for Mr Davis to reframe the two allegations to clarify the exact conduct that was the subject of the discipline process to ensure procedural fairness was afforded to the Appellant. Some delay can be attributed to the Appellant being granted multiple extensions of time and opportunities to provide additional submissions during the process;
- the Appellant does not provide any information to support her assertion that there was a conflict of interest in the disciplinary process;
- the Respondent denies the Appellant's claim that the substantiation of the allegations contradicts the evidence and that the evidence was incorrectly applied. Mr Davis carefully weighed all evidence and his conclusions were supported by probative evidence sufficient for a finding that on the balance of probabilities, the incidents occurred as alleged. Mr Davis demonstrated his consideration of all the evidence by specifically referring to relevant parts of the evidence in his letters to the Appellant;
- the Appellant's assertion that the investigation/determination was inconsistent with standard operating procedures, is unparticularised;
- Mr Davis considered the financial impact on the Appellant of the imposed penalty, however, appropriately considered that such effects were outweighed by the seriousness of the Appellant's inappropriate conduct, her lack of insight and remorse, and the continuing pattern of inappropriate conduct; and
- the Appellant's assertion that her emails regarding the disciplinary process were not appropriately addressed, is vague and unparticularised. The Respondent denies the claim and contends that Mr Davis addressed the Appellant's queries during the process.
Appellant's submissions in reply
- [15]The Appellant, in accordance with the Directions Order, filed submissions in response to the Respondent's submissions. In summary, the Appellant relies on the letters and correspondence exchanged during the disciplinary process with respect to the allegations and investigation and further submits that:
- the submission by the Respondent as to the previous incident on 30 September 2018 is misleading and false and had been unfairly applied by Mr Davis and is an attempt to validate his decision in this matter. The Appellant submits that this could be viewed as his prejudice in applying the unfair penalty and findings;
- Mr Davis has looked at the Appellant's length of service as an accounting number as opposed to achievements undertaken;
- Mr Davis claims that a review of the body worn camera ('BWC') in the office was adequate debriefing in this matter. However, the enterprise bargaining agreement states that the Respondent has the responsibility to offer counselling and debriefing sessions upon incidents. Mr Davis and the Respondent has not complied with this as no procedures nor policies, to date, exists;
- the Respondent has no formal process, polices or procedures surrounding 'harassing tactics' nor the application of harassing tactics;
- the original complaint filed by Ms Sarah Bilby and the allegations submitted to Ethical Standards Unit ('ESU') are of criminal nature but no referral to prosecution by Queensland Police, who have this jurisdiction was made; and
- the Respondent ran a disciplinary process under the PS Act which jurisdiction exists, but also under Transport Operations (Passenger Transport) Act 1994 (Qld) ('TOPTA'), which no policies, procedures nor established jurisdiction is identified.
- [16]The Appellant submits the following with respect to not being afforded natural justice:
- At no time during the investigation, apart from the letter of response, was any additional interviews or information gathered. The evidence relied upon was the original ESU report that did not cater to the constantly reframed questions, however, the Respondent continued to rely on this evidence;
- the ESU claim that the matter was forwarded to the Crime and Corruption Commission (Queensland) for review and comment. However, no evidence pertaining to this was provided during the investigation; and
- the investigation did not undertake nor request any testimony from relevant witnesses within the field of Occupational Situational Tactics ('OST') instructors, Queensland Police and internal trainers in relation to the legislation or OST practices.
- [17]The Appellant submits that Ms Bilby is the complainant in this matter and was identified as the contact officer until an employee complaint was lodged over her conduct and was then removed as the contact officer. The appointment of Ms Bilby as the contact officer, despite the fact she was the complainant, was made by Mr Davis. Further, when the complaint was lodged, the Appellant was not made aware that Ms Bilby was the complainant in the matter.
- [18]The Appellant submits the following with respect to the lack of training with the Respondent:
- Training has been a contentious issue throughout the Appellant's employment and has only undertaken one mode-based training in her career as a SNO;
- during the process, requests were made on several occasions for additional training with respect to policies and procedures regarding incidents. The Appellant specifically questioned throughout the process the actions that should have been undertaken and limited response were provided by the Respondent. The Respondent has no formal debriefing process, no formal review process, nor any communication regarding incidents unless suspended; and
- no feedback on performance, debriefing, internal team reviews nor BWC reviews were conducted and the Respondent failed to give performance reviews and training regarding incidents during this time.
- [19]The Appellant further submits that the key stakeholders within the investigation, being Mr Davis, Ms Bilby and members of ESU, have not undertaken the training in the field of Authorised Persons and OST or the added tag on trainings (i.e. de-escalation and bomb threat training). There were several issues raised after the 2018 OST training that was undertaken at the Queensland Police Academy that were dismissed by Mr Davis, however, additional training and processes have been implemented into the OST deliverance since which catered to many of the concerns raised.
Consideration
- [20]Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances.
Procedural fairness
- [21]There is no dispute that the Appellant was involved in passenger incidents which occurred while the Appellant and another SNO were performing duties on a bus on 31 October 2019.
- [22]On 28 November 2019, the Respondent placed the Appellant on alternative duties whilst the ESU investigated the matter.
- [23]The Appellant was provided with a letter dated 8 January 2020 from the ESU outlining two allegations and offering her an opportunity to attend an interview to provide a response to the allegations.
- [24]After reviewing the ESU's investigation report, Mr Davis forwarded a letter to the Appellant requesting that she show cause as to why disciplinary findings should not be made against her under s 187(1) of the PS Act in relation to the two allegations ('show cause on allegations'). In addition, Mr Davis asked the Appellant to show cause as to whether her alleged conduct constituted harassing tactics under s 111B(3) of the TOPTA.
- [25]On 14 September 2020, Together Queensland, Industrial Union of Employees sent a letter to the Respondent requesting that the disciplinary process be withdrawn and commenced afresh with a new decision maker on the basis that Mr Davis had prejudged the allegations. The Respondent replied on 13 October 2020 to the request by noting that the disciplinary process was being conducted in accordance with the requirements of the PS Act and the Public Service Commission's Guideline 01/17 Discipline. The basis for the claim that Mr Davis had prejudged the allegations was not compelling, with the claim based essentially upon the manner in which the allegations were phrased.
- [26]The Respondent submits that the Appellant responded to the show cause on allegations on 28 October 2020, with the Respondent affording the Appellant further time to respond to the whole notice. The Appellant provided a further response on 24 November 2020.[5]
- [27]On 17 December 2020, Mr Davis forwarded a letter to the Appellant confirming that he found the allegations against the Appellant to have been substantiated. On the basis of these findings, Mr Davis determined that in respect of allegation one, the Appellant was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(b) of the PS Act. Mr Davis also determined that in regard to allegation two, pursuant to s 187(1)(g) of the PS Act, the Appellant contravened, without reasonable excuse, a relevant standard of conduct, namely clause 1.5 and clause 4.1 of the Code of Conduct in a way that is sufficiently serious to warrant disciplinary action. The letter also advised that Mr Davis was giving serious consideration to imposing on her a penalty of reduction of remuneration level from OO5(4) to OO5(1) for a period of 12 months prior to progression and a reprimand. The letter stated that the Appellant was being afforded seven days to show cause why the disciplinary action should not be imposed ('show cause notice regarding penalty').
- [28]The letter of 17 December 2021 advised that Mr Davis was satisfied that the Appellant's conduct was not sufficiently serious to constitute harassing tactics under s 111B(3) of the TOPTA and that therefore, the Appellant was suitable for continued appointment as a TO.
- [29]The Appellant requested an extension to respond to the show cause notice regarding penalty which was granted. The Appellant provided her response on 11 January 2021.[6] After Mr Davis provided a further opportunity for the Appellant to forward copies of documents referred to her in her response, the Appellant's further response was received on 9 February 2021.
- [30]Mr Davis wrote to the Appellant on 3 March 2021 advising of his decision to impose the disciplinary action proposed in the show cause notice regarding penalty.
- [31]I am satisfied that procedural fairness was afforded to the Appellant as she was given every opportunity to respond to both the allegations and the proposed penalty. Mr Davis considered the Appellant's responses, as demonstrated by his request for documents mentioned by the Appellant in her response and his reference to matters contained in the Appellant's final response. The lengthy decision letter provides a detailed response to the issues raised by the Appellant.
- [32]The Appellant made submission with respect to the length of time this process has taken. This time period appears to be a consequence of the ESU investigation period, the time taken for the Respondent to reframe the allegations, and then of the Appellant's requests for extensions. In these circumstances, I do not consider that the time taken to finalise this process was unreasonable.
- [33]A further matter relating to procedural fairness raised by the Appellant was the claim that her request to view the BWC and CCTV footage with the Respondent to discuss the incident was not accepted. I am satisfied that both the Respondent and the Appellant had reviewed the BWC and CCTV footage and as such it was not necessary that the parties view the footage again together.
- [34]I am satisfied that the Appellant was afforded procedural fairness throughout the disciplinary process.
Disciplinary findings
- [35]Mr Davis determined that, with respect to allegation one, the Appellant misused her authority by deliberately obstructing three juvenile passengers from exiting a public passenger vehicle. Mr Davis found that the Appellant did not have the authority or power to obstruct the juvenile passengers from exiting the bus after one of the passengers clearly stated they wanted to get off the bus and two had attempted to depart the bus. The actions in obstructing the juvenile passengers from exiting the bus were found to be a misuse of the Appellant's authority as a SNO and were significantly excessive.
- [36]As noted above, s 187(4)(a) of the PS Act provides the following:
misconduct means –
- (a)inappropriate or improper conduct in an official capacity;
- [37]Adopting Deputy President Merrell's characterisation of 'misconduct' as provided for in s 187(4)(a), the term contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[7]
- [38]In my view, the Respondent's determination that the Appellant's conduct fell within the characterisation of misconduct was fair and reasonable.
- [39]Mr Davis determined that, with respect to allegation two, the Appellant blocked a passenger from moving towards the front of the bus, demonstrating a misuse of her authority as a SNO and TO. Mr Davis determined that the Appellant did not have any power to obstruct the passenger inside the bus, even if she held any concerns that the passenger was evading paying a fare.
- [40]In determining that the Appellant's conduct was substantiated and constituted grounds for discipline under the PS Act, Mr Davis considered that the Appellant's actions demonstrated a lack of judgement and inability to read the situation and at worst, amounted to a deliberated decision to block the passenger's movement. Mr Davis demonstrated his consideration of all the evidence by reference to relevant parts of the evidence including the video footage of the incident and concluded, on the balance of probabilities, the incidents occurred as alleged.
- [41]Mr Davis concluded that this conduct was in breach of clause 1.5 of the Code of conduct which provides that the employee will 'Demonstrate a high standard of workplace behaviour and personal conduct' and clause 4.1 which requires employees to 'Ensure diligence in public administration'. I have viewed the CCTV and BWC footage of the incidents and consider this to be a fair and reasonable determination.
- [42]Mr Davis concluded that the incidents the subject of the allegations were common situations faced by SNOs, and the Appellant's inappropriate responses to the incidents reflected adversely on the Respondent's public reputation. This was a fair and reasonable conclusion, particularly given that as a consequence of allegation two the Appellant was pushed into a travelling passenger.
Other issues
- [43]The Appellant included in her submissions an extract from the ESU interview involving the bus driver who witnessed the situation involving the Appellant. The bus driver stated that he thought the officers did an appropriate job in the situation. The conduct and actions taken by a SNO is subject to the expectations set by the Respondent and the requirements of the Code of Conduct. I note that the bus driver was driving the bus during most of the relevant time. There may be views by others, including the bus driver, as to what was appropriate in the circumstances, however, it is a matter for the Respondent to determine if the behaviour was consistent with the requirements and expectations of the role and statutory obligations.
- [44]The Appellant submits that the male passenger involved in the incident was charged by the Queensland Police and pleaded guilty to two counts of serious assault, fare evasion and wilful damage. The Respondent has viewed the actions of the passenger, which also resulted in the Appellant suffering an injury, as partially a response to the Appellant's own conduct. This is not an unreasonable conclusion. Whilst the passenger's conduct was entirely unacceptable, the circumstances leading up to his conduct were within the Appellant's control. Presumably one of the reasons that SNOs are trained in de-escalation techniques is to avoid the outcomes which occurred in this matter.
- [45]The Appellant made a number of submissions with respect to less relevant matters, such as questioning why the investigators did not interview people within the field of OST instructors or the Queensland Police. The investigators interviewed the people who witnessed the incident, and I accept that this was a reasonable course of action. Despite the Appellant's submissions, there is no evidence that the members of the ESU were not capable of conducting an investigation, notwithstanding they did not have training out in the field. I am not persuaded that further interviews were required beyond the initial ESU investigation.
- [46]The Appellant stated in the appeal notice that the 'disciplinary findings by the delegate contains some questionable statements', however, this issue is not detailed further in submissions. The basis of suggesting that the correspondence contained any 'questionable statements' is unclear, and on my assessment, there does not appear to be anything remarkable in Mr Davis' correspondence. Similarly, the Appellant refers to the disciplinary finding as being 'inconsistent with standard operating procedures', however, no further details are provided in submissions as to how this may be the case.
- [47]The Appellant questions the reference to the incident of 30 September 2018 and subsequent expectations letter as potentially prejudicing the outcome in this process. The previous incident has been referred to in the context of determining the appropriate penalty in circumstances which also involved communication with a member of the public. It is not unreasonable to consider previous performance issues in determining the appropriate penalty in circumstances where previous guidance has not been effective in changing behaviour.
- [48]The Appellant submits that the only interview undertaken with her was with the ESU investigators. The Appellant was given an opportunity to explain the events verbally to the investigators, and subsequently to provide written submissions in response to the allegations made as part of the show cause process. It is not clear how any further interviews with the Appellant would have assisted in the process. The Appellant's submissions with respect to why the matter was not referred for prosecution by Queensland Police do not assist the Appellant's case on the basis that this process relates solely to the Appellant's employment obligations under the PS Act. For the same reason, other submissions with respect to potential organisational deficiencies such as the placement of a supervisor or obligations under the certified agreement with respect to debriefing after the incident do not assist the Appellant in her appeal in this matter The Appellant made submissions with respect to the involvement of Ms Bilby, however, it is unclear from the submissions how Ms Bilby's involvement may have rendered the disciplinary decision process unfair or unreasonable.
- [49]I note that both the disciplinary process and this appeal was conducted pursuant to the PS Act, and not the TOPTA. The reference to TOPTA may have led to some confusion during the early stages of this process, however, I am satisfied that the allegations were framed appropriately to allow the Appellant to understand the nature of the potential breach as it relates to the PS Act.
- [50]The Appellant suggests that there is no review of performance available to SNOs. This does not appear to be the case, with the Respondent noting that the Appellant has been subject to performance review with her supervisor. I note the submission that the Appellant's conduct has previously been questioned and reviewed by the Respondent, with an example provided of an incident on 30 September 2018 for which the Appellant received an expectations letter. It was not unreasonable for the Respondent to determine that the Appellant's assertions that she lacked performance feedback to be disingenuous.
- [51]The Appellant submits that her training was inadequate, however, the Respondent submits that the Appellant was up to date with all mandatory training including Code of Conduct, Ethics and Which Way Would You Go training. I note the Respondent's submission that the Appellant had previously raised training as an issue in response to a letter on 19 December 2018 which followed a situation involving a difficult passenger and requiring appropriate de-escalation skills. The Appellant provided similar submissions in that matter, asserting that a lack of training was the cause of her actions. It appears that the Appellant had received appropriate training in communication and de-escalation techniques. It was reasonable, in my view, for the Respondent to consider that the Appellant had a continued propensity to absolve herself of responsibility for poor conduct by alleging a lack of training. It was not unreasonable for the Respondent to consider that the Appellant has engaged in inappropriate conduct despite the training and question the Appellant's ability to make sound judgement during the performance of her duties.
- [52]I note the Appellant's submission that the Respondent describes the disciplinary penalty erroneously in their submissions as being a reduction of remuneration level for 12 months only. The penalty imposed is a reduction of remuneration level for 12 months with progression to occur as per incremental increase. I accept that the Respondent's submission was not clear on this point.
- [53]The Appellant submits that the penalty was 'not in line with previous disciplinary findings within the unit'. I take this to mean that the penalty was not consistent with that imposed on SNOs for similar conduct. There is no information before me as to the usual range of penalties for conduct such as that found to have occurred in this matter, and so it is not possible to determine whether this penalty is 'in line' with previous disciplinary findings within the unit. Regardless, this appeal is a consideration of whether the disciplinary findings in the circumstances of this particular matter, including the employment history of the Appellant, were fair and reasonable. Each incident involving a disciplinary process will be different depending on particular circumstances and so are not usually directly comparable.
- [54]The Appellant submits that the penalty imposed was harsh on the basis that it will impact adversely on her family. The Appellant states that the financial consequence of this penalty will have a detrimental effect on her family, including her son who has a medical condition that requires access to health professionals that are expensive and are not available through the public system. The Appellant states that her daughter is performing in a sport at a high level which is expensive and she does not receive financial support from the children's father. The Appellant submits that a secondary business established by the Appellant and her partner to support the son's requirements have suffered significant losses.
- [55]It is clear that the reduction in income as a result of this penalty will have an impact on the Appellant's ability to support her family's needs. The Respondent submits that the conduct is sufficiently serious to warrant a financial penalty to deter the Appellant from engaging in conduct that they consider endangers the health and safety of members of the public. I note the Respondent's view that had it not been for the Appellant's limited disciplinary history, Mr Davis would have considered proposing termination of the employment.
- [56]The penalty imposed is significantly more lenient than it could have been, particularly in circumstances where termination may have been considered. A penalty of this nature is generally imposed to discourage the substantiated behaviour from re-occurring. On the basis that the Appellant had received an expectations letter regarding appropriate communication with the public in the previous year, it was not unreasonable to impose a penalty of this nature in these circumstances.
- [57]I note the commendations referred to by the Appellant which were awarded to her during her length of service with the Respondent. These commendations reflect well upon the Appellant and indicate that the Appellant is capable of making positive judgements as part of her role. Although this does not offset the seriousness of the conduct in this particular matter, one would hope that it indicates that this conduct will not be an ongoing feature of the Appellant's employment.
- [58]The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[8]
The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.
The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.
A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[9]
- [59]Having applied the principles outlined above, I do not consider that the decision to substantiate the allegations and impose a reduction in remuneration and a reprimand lacks justification in the circumstances. It was open to the decision maker to substantiate the allegations and the penalty is, in my view, proportionate to the substantiated conduct.
- [60]Based on the information before me, I am satisfied that the disciplinary decision was fair and reasonable in the circumstances.
Order
- [61]I make the following order:
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
Footnotes
[1] IR Act s 562B(2).
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.
[4] IR Act s 562B(3).
[5] Noting that the letters were dated 26 October 2020 and 20 November 2020, respectively, as provided in the attachments of the Respondent's submissions.
[6] Respondent's submissions at [16], with the response dated 23 December 2020, as provided in the attachments of the Respondent's submissions.
[7] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62].
[8] [2019] QSC 170.
[9] Ibid [207]-[209].