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Maher v Workers' Compensation Regulator[2021] QIRC 313

Maher v Workers' Compensation Regulator[2021] QIRC 313

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Maher v Workers' Compensation Regulator [2021] QIRC 313

PARTIES: 

Maher, Trevor Desmond

Appellant

v

Workers' Compensation Regulator

Respondent

CASE NO:

WC/2019/162

PROCEEDING:

Appeal against a decision of the Workers' Compensation Regulator

DELIVERED ON:

10 September 2021

HEARING DATES:

17 and 18 February 2021

DATES OF WRITTEN CLOSING

SUBMISSIONS:

Appellant's submissions, 2 June 2021

Respondent's submissions, 28 June 2021

MEMBER:

McLennan IC

HEARD AT:

Brisbane

ORDERS:

  1. The appeal is allowed.
  1. The decision of the Respondent dated 8 August 2019 is set aside.
  1. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.
  1. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

CATCHWORDS:

WORKERS' COMPENSATION – APPEAL AGAINST DECISION OF WORKERS' COMPENSATION REGULATOR – where psychological injury is accepted – where injury caused by management action is accepted – whether this was reasonable management action taken in a reasonable way – appeal upheld

LEGISLATION & OTHER

INSTRUMENTS:

Isaac Regional Council Disciplinary Procedure (CORP-PRO-003)

Local Government Act 2009 (Qld) s 197

Local Government Regulation 2012 (Qld) s 278, s 279, s 280, s 281, s 282, s 283

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 11, s 32, s 558, s 545

Workers' Compensation and Rehabilitation Regulation 2014 (Qld) s 132

CASES:

Blackwood v Mahaffey [2016] ICQ 10

Church v Workers' Compensation Regulator [2015] ICQ 031

Davis v Blackwood [2014] ICQ 9

Delaney v Q-COMP Review Unit [2005] QIC 11

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027

Church v Workers' Compensation Regulator [2015] ICQ 031

Davis v Blackwood [2014] ICQ 9

Delaney v Q-COMP Review Unit [2005] QIC 11

Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027

Kavanagh v Commonwealth (1960) 103 CLR 547

Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056

Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99

Maher v Isaac Regional Council [2020] QIRC 191

Prizeman v Q-COMP [2005] ICQ 53

Promnitz v Gympie Regional Council [2015] ICQ 011

Q-COMP v Hohn [2008] QIC 56

Ribeiro v Workers' Compensation Regulator [2019] QIRC 203

Sabo v Q-COMP [2010] ICQ 47

Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262

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

State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447

SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936

The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106

Versace v Braun (2005) 178 QGIG 315

Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028

WorkCover Queensland v Kehl (2002) 170 QGIG 93

Workers’ Compensation Regulator v Glass (2020) 4 QR 693

Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2) [2021] ICQ 13

APPEARANCES:

Mr T D Maher, the appellant in person with Mr T Wright, support person.

Mr B I McMillan of counsel, directly instructed by the respondent.

Reasons for Decision

  1. [1]
    Mr Trevor Desmond Maher (the Appellant) commenced employment with Isaac Regional Council (Council) on 29 March 2016.
  1. [2]
    Mr Maher held the position of 'Programme Leader – Regulatory Services' with Council.  His role was to manage a team of compliance officers and conduct compliance activities.
  1. [3]
    During May 2018, various concerns regarding Mr Maher's conduct surfaced and he was suspended on pay.  An external investigation commenced and a disciplinary process ensued. 
  1. [4]
    In correspondence dated 23 August 2018, Council informed Mr Maher that some of the allegations were found to be substantiated, or partially substantiated.  Mr Maher was required to show cause as to why disciplinary action should not be taken against him for breaches of the Council's Code of Conduct and / or Workplace Bullying and Harassment Policy.[1] 
  1. [5]
    Mr Maher sustained a psychological injury on 29 August 2018,[2] namely "an adjustment disorder with anxiety and depressed mood".[3] 
  1. [6]
    Mr Maher applied to the Queensland Local Government Workcare Scheme (LGW) for compensation.  On 5 March 2019, that application was rejected.  LGW concluded that "section 32(5) of the Act operates to exclude your psychological condition from the definition of 'injury' under section 32(1) of the Act, and accordingly you do not have an entitlement to compensation."[4]
  1. [7]
    Following the findings of inappropriate conduct, Council terminated Mr Maher's employment on 10 May 2019. 
  1. [8]
    On 4 June 2019, Mr Maher sought a review of LGW's decision to reject his application for compensation.  LGW's decision was confirmed by the Workers' Compensation Regulator (the Regulator).[5]
  1. [9]
    The Regulator's review decision is the subject of this appeal.
  1. [10]
    This case turns on whether or not Mr Maher's psychological injury arose out of "reasonable management action taken in a reasonable way" by Council, in connection with his employment. 

Application for Reinstatement

  1. [11]
    In addition to the workers' compensation appeal subject of this Decision, Mr Maher had also filed an Application for Reinstatement with the QIRC on 30 May 2019. 
  1. [12]
    That matter had been allocated to me to hear and decide.  Although Mr Maher discontinued that Application shortly before the scheduled Hearing, I issued my Decision with respect to costs on 15 October 2020.[6] 
  1. [13]
    In light of that earlier Decision, the parties were asked whether they objected to me also hearing Mr Maher's workers' compensation appeal via email from the Industrial Registry on 8 December 2020. 
  1. [14]
    On 11 December 2020, Mr Maher and the Regulator each separately indicated by reply email they had no objections to me also hearing the workers' compensation appeal. 

Claim details

  1. [15]
    Mr Maher lodged an application for workers' compensation with LGW on 2 November 2018.  That claim was in respect of a psychological injury sustained on 24 August 2018.[7]
  1. [16]
    LGW rejected Mr Maher's application, on the basis that the show cause letter Council had issued to him seeking a response in relation to the allegations constituted "reasonable management action, taken in a reasonable way".  LGW concluded that s 32(5) of the Workers' Compensation and Rehabilitation Act 2003 (Qld) ('the Act') operated to exclude Mr Maher's psychological condition from the definition of 'injury', such that he had no entitlement to compensation.[8]
  1. [17]
    Mr Maher applied to the Regulator to review that decision on 4 June 2019. 
  1. [18]
    The Regulator confirmed LGW's decision in correspondence dated 8 August 2019.
  1. [19]
    Mr Maher subsequently filed this appeal against the Regulator's decision on 5 September 2019.

What legal tests must be satisfied for Mr Maher's appeal to succeed?

  1. [20]
    The definition of injury, per the iteration of the Act at the relevant time, was (emphasis added):

32  Meaning of injury

  1. (1)
    An injury is personal injury arising out of, or in the course of, employment if -
  1. (a)
    for an injury other than a psychiatric or psychological disorder - the employment is a significant contributing factor to the injury; or
  1. (b)
    for a psychiatric or psychological disorder - the employment is the major significant contributing factor to the injury.

  1. (5)
    Despite subsections (1) and (3), injury does not include a psychiatric or psychological disorder arising out of, or in the course of, any of the following circumstances -
  1. (a)
    reasonable management action taken in a reasonable way by the employer in connection with the worker's employment;
  1. (b)
    the worker's expectation or perception of reasonable management action being taken against the worker;
  1. (c)
    action by the Regulator or an insurer in connection with the worker's application for compensation.

Examples of actions that may be reasonable management actions taken in a reasonable way-

  • action taken to transfer, demote, discipline, redeploy, retrench or dismiss the worker
  • a decision not to award or provide promotion, reclassification or transfer of, or leave of absence or benefit in connection with, the worker's employment.
  1. [21]
    An injury arises out of employment where there is a causal connection between the employment and the injury.[9] That element is not in dispute between the parties.  However, a psychiatric or psychological disorder is not taken to be an 'injury' under the Act where it arises out of "reasonable management action taken in a reasonable way by the employer in connection with the worker's employment".  That is the crux of this matter.
  1. [22]
    An appeal such as this is a hearing de novo.[10]  Mr Maher bears the onus to prove, on the balance of probabilities, that he sustained an injury within the meaning of the Act.  As explained by Deputy President Merrell in Ribeiro v Workers' Compensation Regulator:

The balance of probabilities test requires a court to reach a level of actual persuasion and that process does not involve a mechanical application of probabilities.[11]

What is the question to be determined?

  1. [23]
    There is no dispute between the parties that:
  • Mr Maher was a worker within the meaning of s 11 and sch 2 of the Act;[12]
  • Mr Maher suffered a personal injury (namely, an "adjustment disorder with anxiety and depressed mood") in August 2018;[13]
  • Mr Maher's injury arose out of, or in the course of, his employment;
  • Mr Maher's employment was the major significant contributing factor to his injury; and
  • The employment issue that was the major significant contributing factor to Mr Maher's injury was the "overall disciplinary process, including the suspension from duty, the investigation and the issuing of the show cause notice on the 23rd of August 2018."  That is, events in the period commencing on or about 21 May 2018 to 23 August 2018.[14]
  1. [24]
    In my view, the three-month process culminating in the issuing of the show cause notice to Mr Maher on 23 August 2018 did constitute "reasonable management action" by Council - but it was not "taken in a reasonable way".
  1. [25]
    My reasons follow.

Evidence and submissions

  1. [26]
    Written closing submissions were directed in the order Appellant – Respondent – Appellant (in reply, on issues of law only).
  1. [27]
    The Appellant's written closing submissions were filed on 2 June 2021.
  1. [28]
    The Respondent's written closing submissions were filed on 28 June 2021.
  1. [29]
    The Appellant advised via email on 28 June 2021 that he elected not to make any written closing submissions in reply.
  1. [30]
    I have carefully considered all submissions and materials available to me in arriving at this Decision, including the evidence of the two witnesses and four Exhibits tendered at the Hearing, together with the parties' written closing submissions, Appeal Notice and Statements of Facts and Contentions.  I have determined not to approach the writing of this Decision by summarising the entirety of those submissions, materials and attachments but will instead refer to the parties' respective positions in my consideration of each question to be decided.

Witnesses

  1. [31]
    There were only two witnesses at the Hearing of this matter:
  1. Mr Trevor Maher, as the Appellant; and

b) Mr Jeff Stewart-Harris, Director, Planning Environment and Community Services for Isaac Regional Council.

Consideration of "Reasonable management action taken in a reasonable way"

  1. [32]
    Justice Martin has observed in Davis v Blackwood that:

The task of the Commission when applying s 32(5) does not involve setting out what it regards as the type of actions that would have been reasonable in the circumstances.  There may be any number of actions or combinations of actions which would satisfy s 32(5).  The proper task is to assess the management action which was taken and determine whether it was reasonable and whether it was taken in a reasonable way.  Sometimes, that may involve consideration of what else might have been done but that will only be relevant to whether what was done was, in fact, reasonable.[15]

  1. [33]
    In Blackwood v Mahaffey, Justice Martin further said that:

The difficulties in construing s 32(5) support the conclusion that more than one interpretation of s 32 is available and that, therefore, the beneficial interpretation approach should be applied.  In the cases decided in this Court, any attempt to provide some type of formula or application of dominant cause has been rejected.  Section 32 must be applied in light of the evidence accepted by the Commission.  If, after considering all the relevant evidence and weighing up the factors which were accepted as having given rise to the personal injury, the Commission forms a conclusion that any of the conduct referred to in s 32(5) does not, on balance, displace the evidence in favour of the worker then a finding in the workers favour must follow.[16]

  1. [34]
    Deputy President Merrell explained in State of Queensland (Department of Agriculture and Fisheries) v Workers' Compensation Regulator[17] that:

The determination of whether the management action is reasonable and whether such action was taken in a reasonable way is evaluative as well as judgemental.[18] Whether the management action is reasonable and whether such action was taken in a reasonable way will be an inquiry of fact to be determined objectively.[19]

Reasonableness does not necessarily equate with 'industrial fairness' although considerations of 'fairness' will always be relevant.[20]  An imperfection in management action may not justify the characterisation of the management action as unreasonable.[21] Management action need only be reasonable; it does not need to be perfect.  Instances of imperfect but reasonable management action may, in the appropriate circumstances, be considered a blemish and management action does not need to be without blemish to be reasonable.[22]

Reasonable, in the context of s 32(5) of the Act, means reasonable in all the circumstances of the case.[23] It is the reality of the employer's conduct that must be considered and not the employee's perception of the employer's conduct.[24]

However, the reasonableness of action by management has to be considered '… in connection with the worker's employment' which requires consideration of all disparate elements which contribute to the injury.[25] In an appropriate case, that consideration may require a global view of the management action to determine if the action was reasonable.[26] However, simply because a large number of stressors are nominated does not mean a consideration of the impact of the stressors on a global basis is justified.[27]

Chronology

  1. [35]
    The Respondent submitted a chronology of relevant events,[28] upon which the table below is based.

Date

Event

Evidence

23 March 2016[29]

Mr Maher commenced employment with Isaac Regional Council

T1-11,

lines 3-4.

(On or about)

21 May 2018

Mr Stewart-Harris conducts one-on-one meetings with Mr Maher and members of Regulatory Services Team.

Council becomes aware of allegations that Mr Maher may have engaged in conduct that could amount to misconduct and / or breach of Council's Code of Conduct and policies.

Exhibits 3 and 4.

24 May 2018

Mr Maher attends a meeting with Mr Stewart-Harris and Ms Haldane.  Mr Maher is suspended with pay, pending an investigation of possible misconduct

Exhibit 2.

24 May 2018

Council provides Mr Maher with a 'Suspension' letter advising that he is suspended with pay, pending investigation

Exhibit 1,

p. 73

24 - 25 May 2018

Council sought to engage Livingstones to conduct external investigation

Exhibit 1,

p.75 and 80.

4 June 2018

'Commencement of Investigation' letter from Council to Mr Maher, advising that Livingstones had been engaged to conduct an external investigation

Exhibit 1,

p. 91

26 June 2018

Livingstones provide 'draft allegations' to Council

Exhibit 1, pp.105-111

18 July 2018

'Notification to Attend Investigation Interview' letter from Council to Mr Maher, attaching the list of allegations being investigated - and requesting his attendance at interview on 25 July 2018

Exhibit 1, pp.129-134

24 July 2018

Mr Maher requests an extension of time to provide his response to allegations until 8 August 2018

Exhibit 1, pp.135-140

24 July 2018

Ms Haldane advises that interview was rescheduled to 1 August 2018

Exhibit 1,

p. 135

1 August 2018

Mr Maher attends interview and signs the 'Summary of Interview of Trevor Maher' document.  Mr Maher acknowledged he was provided opportunity to have a support person attend with him.  Mr Maher declines to participate in an oral interview with the external investigator.

Exhibit 1, pp.141-150

1 August 2018

Mr Maher provides Council with his written response to allegations

Exhibit 1, pp.151-171

22 August 2018

Livingstones provides draft investigation report, without supporting attachments

Exhibit 1,

p. 60 and p. 172

23 August 2018

'Notice to Show Cause' letter from Council to Mr Maher advising that the external investigation had found some allegations to be substantiated or partially substantiated.  Mr Maher was given notice to show cause as to why disciplinary action should not be taken against him for breaches of Council's Code of Conduct and / or Workplace Bullying and Harassment Policy.  Mr Maher was required to respond to the Show Cause Notice by 29 August 2018.

Exhibit 1,

pp. 31 - 37

28 August 2018

Council received the final investigation report, complete with supporting attachments

Exhibit 1, p. 60.

29 August 2018

Mr Maher provides a written response to the 'Notice to Show Cause'

Exhibit 1,

p. 38 – 48

29 August 2018

Mr Maher attends upon his General Practitioner, Dr Benjamin Chapman and reports "depressed mood which is affecting his home duties and his work performance."[30]  Dr Chapman issued a medical certificate certifying Mr Maher unfit for work until 21 September 2018.

Exhibit 1,

p. 21

29 August 2018

Mr Maher sustained a psychological injury, namely "an adjustment disorder with anxiety and depressed mood".  

Exhibit 1,

p. 14, [19.1.2 and 19.2.1],

Report of Dr Riccardo Caniato, Psychiatrist dated 5 December 2018.

Summary

  1. [36]
    Mr Maher submitted that the three-month process, culminating in Council issuing of the show cause notice to him on 23 August 2018, did not constitute "reasonable management action taken in a reasonable way". 
  1. [37]
    Mr Maher asserted that he was not afforded procedural fairness in various aspects of the process undertaken by Council.  He identified concerns with respect to each of the following areas: suspension from duty; allegations; show cause notice; disciplinary procedure and process.
  1. [38]
    Mr Maher summarised his complaints to be:[31]
  1. Failure to issue a Notice of Disciplinary Action, subsequently no prior notice of meeting, no advice of what the meeting entailed, no preparation time for the Appellant, and no opportunity to obtain a support person for a disciplinary meeting – suspension;
  1. Ambushing the Appellant into a disciplinary meeting with a major imbalance in power – suspension;
  1. Unlawfully issuing a directive that the Appellant have no contact with his team whilst suspended – suspension;
  1. Failing to form the requisite reasonable belief before suspension – disciplinary procedure;
  1. Failing to provide procedural fairness to the Appellant – multiple occasions;
  1. Failure to comply with Section 283 LGR – allegations not particularised – allegations;
  1. No justification for the investigation, including having received no complaints, seeking complaints through behavioural workshop and one on one interviews – allegations;
  1. Framing allegations around matters not covered by policies or procedures of the employer or Legislation – allegations;
  1. Perverting natural justice by limiting the time the Appellant had to reply – allegations;
  1. Failing to provide witness statements, complaints and other evidence to the Appellant – allegations;
  1. Presenting an allegation (6(d)(i)) that contained false material that the employer knew was false – allegations;
  1. Failing to fully investigate the issues – independent witnesses not interviewed – allegations;
  1. Issuing Show Cause Notice prior to receiving the final report from the external investigator and without having seen any evidence to support the allegations – show cause notice;
  1. Failure to comply with Section 283 LGR – allegations not particularised – show cause notice;
  1. Presenting the show cause notice to the Appellant without error checking – show cause notice;
  1. Altering the wording of the Suspension Letter in the show cause notice;
  1. Failure to provide the allegations to the Appellant at suspension – process;
  1. Poor evidentiary recording practices during the suspension meeting, written and oral – process.
  1. [39]
    While Mr Maher's Statement of Facts and Contentions[32] lists 40 'stressors', 77 'facts' and 66 'contentions', the parties agreed that the scope of matters be confined to the period commencing on or about 21 May 2018 to 23 August 2018 at the Mention before me on 28 January 2021.[33] 
  1. [40]
    Mr Maher stated that:

There can be no doubt that management action occurred throughout the process under review. 

What needs to be determined is:

  1. Was that action reasonable; and/or
  1. Was that action taken in a reasonable way.[34]
  1. [41]
    The Respondent submitted that Mr Maher had not proven that the management action exercised by Council in the relevant period between 21 May 2018 and 23 August 2018 was unreasonable or taken in an unreasonable way – and, should it be otherwise determined, then that "…should be considered as mere blemishes in the context of management action that was otherwise 'reasonable in all the circumstances of the case'."[35]

 Relevant Legislation

  1. [42]
    The Local Government Act 2009 (Qld) (LGA) relevantly provides:

197  Disciplinary action against local government employees

  1. (1)
    The chief executive officer may take disciplinary action against a local government employee.
  1. (2)
         A regulation may prescribe—
  1. (a)
    when disciplinary action may be taken against a local government employee; and

 (b)  the types of disciplinary action that may be taken against a local government employee.

  1. [43]
    The Local Government Regulation 2012 (Qld) (LGR) relevantly provides:

Part 3 Local government employees

Division 1 Disciplinary action against local government employees

278 What div 1 is about

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

279 When disciplinary action may be taken

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

 (a)  failed to perform their responsibilities under the Act; or

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

280 Types of disciplinary action

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

Examples of demotion of a local government employee—

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

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

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

Note—

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

chapter 2A or 3.

  1. (2)
    A written reprimand or warning—
  1. (a)
    must state the following—
  1. (i)
    the employee's conduct that is disapproved of;
  1. (ii)
    the remedial action needed to rectify the conduct;
  1. (iii)
    the period within which the remedial action is to be taken;
  1. (iv)
    the possible consequences for a repeat of the conduct by the employee; and
  1. (b)
    is part of a local government employee's employment record.

281 Deductions from salary or wages

  1. (1)
    If disciplinary action taken against a local government employee consists of a deduction from the salary or wages of the employee, the local government may make the deduction—
  1. (a)
    if no appeal is brought against the disciplinary action—when the period for starting an appeal against the disciplinary action has ended; or
  1. (b)
    if an appeal is brought against the disciplinary action and the decision on the appeal confirms the deduction or changes the amount of the deduction—when notice of the decision is given to the employee; or
  1. (c)
    if an appeal is brought against the disciplinary action and the appeal is discontinued or struck out—when the appeal is discontinued or struck out.
  1. (2)
    If an appeal is brought against the disciplinary action taken against a local government employee and the decision on appeal changes the disciplinary action to a deduction from the salary or wages of the employee, the local government may make the deduction when notice of the decision is given to the employee.

282 Suspension of employees

  1. (1)
    If the chief executive officer is satisfied, on reasonable grounds, that a local government employee will be subject to disciplinary action, the chief executive officer may suspend the employee from duty.
  1. (2)
    Suspension of a local government employee from duty does not affect the following—
  1. (a)
    the continuity of the employee's service in employment with the local government;
  1. (b)
    the entitlements previously accrued to the employee from employment with the local government;
  1. (c)
    the accrual of entitlements to the employee during the period of suspension.
  1. (3)
    A suspended employee must be paid the employee's full remuneration as at the start of the suspension for the period of suspension.

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee—
  1. (a)
    notice of the following—
  1. (i)
    the disciplinary action to be taken;
  1. (ii)
    the grounds on which the disciplinary action is taken;
  1. (iii)
    the particulars of conduct claimed to support the grounds; and
  1. (b)
    a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [44]
    Isaac Regional Council's Disciplinary Procedure is also relevant.[36]  

Consideration - Suspension

  1. [45]
    Mr Maher submitted that the following acts or omissions demonstrated that the management action taken by Council was not reasonable and / or not taken in a reasonable way, with respect to his suspension from duty:
  1. Mr Maher was not provided with prior notice of the meeting.
  1. Mr Maher was not advised of the purpose of the meeting.
  1. Mr Maher was not provided with the opportunity to have a support person present.
  1. The suspension was contrary to Council's Discipline Procedure and / or s 282 of the LGR. 
  1. Council had not formed the requisite reasonable belief before determining to suspend Mr Maher from duty.

f) Mr Maher was forbidden from having any contact with his team whilst suspended.

  1. [46]
    In Versace v Braun, President Hall held that a management decision may be reached reasonably - but not implemented and communicated in a reasonable way.[37] 
  1. [47]
    In my view, there were such problems with the conduct of the meeting held to suspend Mr Maher from duty on 24 May 2018; notwithstanding that the suspension decision itself was reasonable given the particular circumstances of this matter. 

No prior notice of meeting – No advice as to purpose of meeting

  1. [48]
    Mr Maher was not given any prior notice of, or advised of the purpose of, the suspension meeting in advance.  He was instead summoned by Mr Stewart-Harris's Executive Assistant to come directly to his office at about 4:40 pm 'cold'.[38]  This is not disputed between the parties.[39]
  1. [49]
    Mr Maher's evidence was that he had no idea what the meeting was about.[40]
  1. [50]
    While the Respondent had submitted that Mr Maher must have had some inkling of Council's concerns, that does not render untrue Mr Maher's account of feeling distressed upon learning of his immediate suspension. 
  1. [51]
    I do not believe Mr Maher's claim that he had no idea what the meeting was about.  It is implausible that Mr Maher had not sniffed the wind, following the conduct of the 'Appropriate Behaviour' workshop and Mr Stewart-Harris's one-on-one interviews with team members including himself in the preceding days.  However, I do appreciate that ruminating over possible problems may be different to the shock of its present reality.  In that sense, it should not be left to Mr Maher to assume what the meeting is about - but rather the onus is on Council to tell him in advance.  That is the course that provides procedural fairness to Mr Maher in the circumstances.

No support person offered prior to meeting

  1. [52]
    Further compounding the unreasonableness of Council's implementation of the suspension decision was the failure to offer Mr Maher the opportunity to have a support person before requiring him to attend such meeting. 
  1. [53]
    Although Mr Maher denied that he was offered the opportunity to have a support person at all,[41] I instead prefer Mr Stewart-Harris's oral evidence that he advised Mr Maher that he could have a support person present once the meeting was underway,[42] noting both the more precise recollection of the event and the evidence of Mr Stewart-Harris's contemporaneous handwritten meeting note.[43] 
  1. [54]
    The evidence of Mr Stewart-Harris's meeting note revealed that Mr Maher was offered a support person before the purpose of the meeting was revealed to him.  If that were the case, Mr Maher could not know whether he wanted a support person with him or not - and if so, then who?  As I have observed above, Mr Maher could probably have guessed what the meeting was to be about but he did not know. 
  1. [55]
    However, Mr Stewart-Harris's oral testimony described the order differently, instead indicating that the purpose of the meeting was shared with Mr Maher before a support person was offered:

Mr Stewart-Harris: …we said to him that this is a follow on from the discussion we had a few days earlier and that he was able to have a support person with him. And that – to that he didn't' say anything , he just sort of waved his hand in a dismissive way.  So there was no further discussion about that.[44]

  1. [56]
    Mr Stewart-Harris's account was that Mr Maher quite literally waived away the offer of a support person. Given it was "nearly knock off time"[45] when the meeting took place, Mr Maher's capacity to identify an appropriate support person was limited in any case.  The fact that Mr Maher attended Mr Stewart-Harris's office at approximately 4:40 pm - and his suspension was to take effect from 5 pm that day[46] - exacerbated the procedural disadvantage in my view. 
  1. [57]
    Council's Disciplinary Procedure states that:

All employees are entitled to have a support person and / or Union Representative throughout the disciplinary process.  At every stage of the process, procedural fairness will be applied.[47] 

While I accept the Respondent's submission that 'suspension' is not a 'disciplinary action' with respect to s 280 of the LGR, Council's Disciplinary Procedure appears to go further than the express terms of the LGR where it states that (emphasis added):

The types of formal disciplinary action which may be taken by Council include, but are not limited to, the following: … 

I note also that provision for 'suspension' is referenced within Council's Disciplinary Procedure - including within the Flow Chart, located beneath the pathway headed 'Formal Disciplinary Process'.[48] 

  1. [58]
    Foundationally, while 'suspension' is not a 'disciplinary action' so defined under the LGR; it is nonetheless a measure contained within the 'disciplinary process' as evidenced by the references to 'suspension' within Council's Disciplinary Procedure and Flow Chart.  I note that Council's Disciplinary Procedure states:

The actual disciplinary steps utilised will be handled in accordance with the Disciplinary Flowchart attached as Appendix 1 and with discretion as each matter presented can vary in complexity and necessitate a tailored approach. 

So while 'suspension' is not a 'disciplinary action', it is certainly a 'disciplinary step' within Council's 'disciplinary procedure'. 

  1. [59]
    That Mr Stewart-Harris noted Mr Maher was advised that he may have a support person at the commencement of the suspension meeting is further indication that it was considered to be a step in the disciplinary procedure.  Council's Disciplinary Procedure states that:

Support Person or Representative:

  • The Support Person is an individual chosen by the employee to accompany and provide support to the employee during formal disciplinary meetings.  The support person may be a family member, friend or colleague.  The support person is to be nominated to IRC prior to the commencement of disciplinary proceedings and attend in an observation / support capacity only.  Alternatively, the employee may elect the attendance of a Union representative to advocate on their behalf.[49]
  1. [60]
    The significance of that extract is both that a support person would not have been offered if the suspension meeting was not considered a step in the disciplinary procedure and that according to Council's Disciplinary Procedure a support person should properly have been nominated prior to the meeting being held.
  1. [61]
    I accept the evidence of Mr Stewart-Harris's contemporaneous meeting notes that a support person was offered before the purpose of the meeting was revealed and further his oral evidence that Mr Maher had waived away the suggestion at that time.  Though I agree with Mr Maher's submission that he was unable to properly assess whether or not he wished to have a support person present, in the absence of being informed as to the purpose of the meeting.[50] 
  1. [62]
    That further evinces in my mind that the failure to offer Mr Maher the opportunity for a support person prior to the suspension interview was unreasonable.
  1. [63]
    From Council's perspective, I recognise that doing so would rather have alerted Mr Maher to the nature of the meeting he was to attend if a support person were to be offered beforehand.  I accept that Mr Stewart-Harris may have been genuinely concerned about Mr Maher's reaction to that news but that is an argument to build in further support measures, rather than an argument to minimise them.
  1. [64]
    Mr Stewart-Harris and Ms Haldane clearly both understood the importance of having a support person in such meetings, as arrangements had been made for the latter to also be present as a second management representative at the meeting.[51] 
  1. [65]
    At the Hearing of this matter, Mr Maher accepted that Mr Stewart-Harris's intention in timing the suspension meeting at the end of the working day was to shield him from potential embarrassment when departing the workplace after suspension.[52]  That aligns with my impression of Mr Stewart-Harris as an honest, straightforward and decent person who would be likely to extend such professional courtesy regardless of the circumstances.  In this situation however, regardless of Mr Stewart-Harris's genuine intentions, the approach taken that best preserved Mr Maher's dignity was elevated over the most procedurally correct course.

Suspension contrary to Council's Discipline Procedure - Suspension contrary to s 282 LGR - Reasonable belief required before suspension

  1. [66]
    The LGR provides that (emphasis added):
  1. (1)
    If the chief executive officer is satisfied, on reasonable grounds, that a local government employee will be subject to disciplinary action, the chief executive officer may suspend the employee from duty.[53]
  1. [67]
    Council's Disciplinary Procedure states that (emphasis added):

If Council is satisfied, on reasonable grounds, that an employee will be subject to disciplinary action, the employee may be suspended from duty on ordinary pay pending completion of an investigation.[54]

  1. [68]
    Mr Stewart-Harris provided oral and written evidence as to the number and nature of conduct allegations distilled from the one-on-one meetings he had conducted with several members of Mr Maher's team by the suspension meeting on 24 May 2018.[55] 
  1. [69]
    On that basis, I find that Mr Stewart-Harris did have reasonable grounds to be satisfied that Mr Maher would be subject to disciplinary action if one or more allegations of that nature were found to be substantiated.
  1. [70]
    The extract at paragraph [67] above states that suspension can occur in such circumstances "pending completion of an investigation".  Further, the Disciplinary Flow Chart also indicates that 'suspension' may occur at the same time as an 'investigation' - and certainly before the 'Notice of Proposed Disciplinary Action' is issued.
  1. [71]
    In my view, Mr Maher's suspension from duty did not offend those particular cited provisions.

Contact with team members forbidden whilst suspended

  1. [72]
    Mr Maher submitted that Council's direction that he was not to have contact with any team members was unlawful and therefore constituted unreasonable management action.
  1. [73]
    Mr Stewart-Harris's evidence was that Council had a "duty of care" to its staff to suspend Mr Maher as team members were "increasingly uncomfortable" or had "some level of anxiety around him."[56] 
  1. [74]
    While Mr Maher contended those reasons were not in evidence in Mr Stewart-Harris's contemporaneous meeting notes,[57] I do not agree.  An extract from Mr Stewart-Harris's meeting notes states "Therefore stood down pending investigation.  Also more comfortable for TM and staff involved ??" 
  1. [75]
    However, there is also the evidence of Mr Stewart-Harris's notes of the interviews conducted with team members in mid-May, that further support his assessment of Council's need to mind its duty of care to Council's staff more broadly.  Mr Stewart-Harris's one-on-one interviews with team members noted concerning comments from several staff including: "Mind games", "Low level anxiety all the time", "Paranoia – he is recording everyone", "Manipulate people almost in a DV way", "Vindictive + petty", "Preys upon vulnerability", "Intimidation", "People cry in office", "Trainee scared to be in office by herself" to list a few examples.[58] 
  1. [76]
    Mr Stewart-Harris also stated that the reason for Mr Maher's suspension was "to ensure the conduct of the investigation was as pure as possible."[59]  That observation is both appropriate and unremarkable, with respect to investigations of this type.
  1. [77]
    Mr Maher submitted that "These 2 reasons are in conflict."[60]  I do not agree that is the case.  In my view, Mr Stewart-Harris was correct to conclude that all of the above reasons were a valid basis for suspension pending investigation. 
  1. [78]
    The suspension letter outlined the steps in the investigation process and informed Mr Maher that:

You are instructed to not attend your place of work during your suspension unless invited by myself or the investigator, and you are instructed to refrain from contacting members of your team.[61]

  1. [79]
    The direction not to contact team members was entirely reasonable, in light of Mr Stewart-Harris's notes and account of his interviews with team members.  Such direction is typical in the course of many workplace investigations.  In the context of several different team members stating that Mr Maher made them feel anxious and uncomfortable, together with reports that he could be abusive and vindicative, I agree that direction was the right call for the wellbeing of Council staff more broadly. 
  1. [80]
    I also note Council's inclusion of a direction to Mr Maher with respect to the prevention of retaliation and victimisation of witnesses or anyone connected with the matter under investigation.  That was reiterated in correspondence to Mr Maher throughout the disciplinary process and verbally to him by the investigator at interview.  In light of Mr Maher's statement made in his original application for workers compensation, again I agree that the course adopted by Council was entirely appropriate:

I have also become concerned for the safety of some IRC management should I come into contact with them.  My GP indicated he did not believe I was a threat to myself but could be to others.[62]

  1. [81]
    While I appreciate the awkwardness of Council's direction not to engage with team members in the period of Mr Maher's suspension in the context of living in a rural community, it was certainly appropriate in these particular circumstances.  I accept that was not Mr Maher's preference and that he felt cut off from his support network, though seemingly that perspective was not universally shared amongst his team. 
  1. [82]
    In the context outlined above, Council's direction was not unreasonable.

Finding

  1. [83]
    Foundationally, I find the procedural failures of Mr Maher not being provided with prior notice of the meeting or its purpose, coupled with no opportunity to arrange for a support person in advance of said meeting, are more than a "mere blemish". 
  1. [84]
    Instead, it contributes to my determination that while Council acted reasonably to suspend Mr Maher from duty against the backdrop of numerous conduct allegations sourced from various team members, that management action was not taken in a reasonable way and was in fact procedurally unfair. 

Consideration – Disciplinary Procedure

  1. [85]
    Mr Maher submitted that the following acts or omissions demonstrated that the management action taken by Council was not reasonable and / or not taken in a reasonable way, with respect to Council's application of its Disciplinary Procedure:

a) Mr Maher was not provided with a "Notice of Proposed Disciplinary Action", prior to being suspended from duty with pay.

b) Council had not investigated the various allegations before suspending Mr Maher from duty.

No Notice of Disciplinary Action provided at the point of suspension

  1. [86]
    Mr Maher asserted that Council's failure to provide him with a Notice of Disciplinary Action or allegations at the point of his suspension from duty was procedurally unfair.
  1. [87]
    The LGR provides that (emphasis added):

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee—
  1. (a)
    notice of the following—
  1. (i)
    the disciplinary action to be taken;
  1. (ii)
    the grounds on which the disciplinary action is taken;
  1. (iii)
    the particulars of conduct claimed to support the grounds; and
  1. (b)
    a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [88]
    At paragraph [58] above, I have explained that 'suspension' is not a 'disciplinary action', although it is certainly a 'disciplinary step' within Council's 'disciplinary procedure'.  For that reason, Council did not - and need not have – provided Mr Maher with a Notice of Disciplinary Action at the suspension meeting.

Allegations not provided to Mr Maher at the suspension meeting

  1. [89]
    Mr Maher asserted that it was unreasonable for Council not to provide him with the particulars of allegations against him at the suspension meeting.  I do not agree that course to be unreasonable or otherwise procedurally unfair. 
  1. [90]
    An extract of Mr Stewart-Harris's notes of his meeting with Mr Maher is reproduced below:

  • Advised that after recent staff engagements
  • #s of behavioural allegations
  • If proved = breach of Code of Conduct
  • Which would lead to disciplinary action
  • Therefore stood down pending investigation
  • Also more comfortable for TM and staff involved ??

Would be an independent investigation

Gave TM stand down letter – advised that as it was nearly knock off time we would wait a few minutes then Bec and I escorted TM to his desk to get his things[63]

  1. [91]
    The 'stand down letter' referred to in Mr Stewart-Harris's notes further explained that one-on-one meetings with team members had taken place and that there was cause to undertake an investigation in accordance with Council's Disciplinary Procedure.  That investigation would "endeavour to establish the facts relating to your possibly unacceptable conduct" and further outlined the objects of the investigation including "Identification of allegations and their particulars" and "Pending the above mentioned assessment, articulation of justification and grounds of potential disciplinary action (including termination)."  It was also explained that "The investigation will be undertaken in a manner which provides you the opportunity to provide relevant information."  The names and telephone contact details of Mr Stewart-Harris and Ms Haldane were included, should Mr Maher wish to discuss any aspects of the investigation process or information contained therein.[64] 
  1. [92]
    There can be no doubt that Mr Maher understood the steps and phase of the process at the point of his suspension from duty.  To that end, no Notice of Disciplinary Action was provided to Mr Maher at that early stage because Council had clearly not yet determined to take disciplinary action against him ahead of investigating and assessing grounds and particulars.  That was entirely appropriate.
  1. [93]
    Likewise, while Mr Stewart-Harris's one-on-one meetings with team members evinced in his mind a reasonable belief that the number and nature of allegations were sufficiently serious to warrant Mr Maher's suspension from duty to enable further investigation to occur, Council's determination to appoint an external investigator to prepare the particulars of conduct claimed for his response was also fair and reasonable.  Even though Mr Stewart-Harris had made notes of his meetings with staff, it does not follow that procedural fairness requires that must be provided to Mr Maher in unvarnished form.[65]  In fact, to do so in an incomplete, inaccurate or otherwise errored form has the potential to create procedural unfairness, should Mr Maher have been then required to respond to the 'shifting sands' of any case against him.  In my view, the cautious approach taken by Mr Stewart-Harris was the correct choice made for the right reasons.

Consideration - Allegations

  1. [94]
    Mr Maher submitted that the following acts or omissions demonstrated that the management action taken by Council was not reasonable and / or not taken in a reasonable way, with respect to the various allegations:

a) There were no complaints regarding Mr Maher's conduct until various allegations were "coerced from the employees"[66] by Council, following the delivery of an "Acceptable Behaviours" workshop and Mr Stewart-Harris's initiation of one on one meetings with team members.

b) The form of the notice of the various allegations provided to Mr Maher on 18 July 2018 did not comply with the requirements of s 283(1)(a)(iii) of the LGR.  Specifically, those allegations were not contained in a notice that set out "the particulars of conduct claimed to support the action" and were poorly particularised

  1. Council did not provide Mr Maher with its policies and procedures and / or relevant legislation it submitted may have been breached for each allegation identified. 
  1. Mr Maher had only a short period of 6 days to respond to the 52 allegations.  Whilst Mr Maher requested an additional 14 days in which to provide his response, only an additional 7 day period was permitted.
  1. No supporting material was supplied with respect to the various allegations.
  1. The time that had elapsed between Mr Maher's suspension on 24 May 2018 and the provision of the interview letter attaching a notice of allegations on 18 July 2018 was unreasonable.
  1. Allegation 6(d)(i) contained material that Council knew to be false.

h) Independent witnesses to the allegations were not interviewed.

Allegations were "coerced from the employees"[67] by Council

  1. [95]
    Council's determination to conduct an "Acceptable Behaviours" workshop was entirely appropriate and consistent with an employer's duty to provide safe work environments for staff. 
  1. [96]
    It is clear that the information imparted in that session served its purpose of educating staff about appropriate workplace conduct.  An employer's initiation of such a proactive approach is laudable.
  1. [97]
    What flowed from the workshop is that staff then disclosed to Mr Stewart-Harris, within the follow up one-on-one meetings held, many examples of behaviours in the team that they had privately held concerns about.  That is not evidence of conspiracy. 
  1. [98]
    The de-identified notes of one-on-one meetings with team members conducted by Mr Stewart-Harris do not read as reluctant accounts.  Once asked, it appears that several staff gave a fulsome expression of concerns.[68]
  1. [99]
    No witness testimony or documentary evidence was produced by Mr Maher at Hearing to support his contention that allegations were "coerced from the employees".  I do not believe that was the case here.

Allegations provided to Mr Maher on 18 July 2018 were poorly particularised - no supporting material supplied

  1. [100]
    Mr Maher stated that:

The allegations were poorly particularised – lacked dates, times and locations in some; failed to identify the person the subject of the allegation; included actions lawful under State Legislation and not covered by any policy or procedure of the employer; contained inaccuracies; had limited substance; were based around terms like – at some time, somewhere, somebody – words to the effect of.[69]

  1. [101]
    At the Hearing, Mr Stewart-Harris conceded that Council expressed some concerns with the construction of the draft allegations to the external investigator:

Mr McMillan: And in that email chain, of course, the emails speak for themselves, but for context, Mr Stewart-Harris, in that email chain it appears that the council is discussing with the investigator the content of the allegations, and some concerns that council had with the nature of the allegations and what should be included in them?

Mr Stewart-Harris: That is right.[70]

  1. [102]
    That email chain referred to was contained in Exhibit 1.  It demonstrated Council's "concern around the detail provided regarding the allegations" in an email sent to the external investigator on 4 July 2018, specifically:
  1.  The allegations do not state what they are in breach of;
  1.  The allegations are lacking in detail;[71]

  1. [103]
    Council proceeded on the advice they received from the external investigator in the reply email later that day:

1. The allegations do not state what they are in breach of;

…as 'allegations' are being investigated there is not a need to state in the allegations the policy alleged to have been breached.  The investigation looks at what has factually occurred in the workplace and provides the respondent the opportunity to respond to what has alleged to have occurred.  Whilst the respondent would still need to be afforded the opportunity to respond to any alleged breach of Council policies or other instrument, that opportunity can be afforded at the disciplinary stage of the process should it occur.

2. The allegations are lacking in detail;

Importantly, to provide a respondent the opportunity to respond to the allegations the requirement is that they be sufficiently specified for the Respondent to be able to respond…whilst an allegation may be able to be formulated there are allegations that have more, and others less evidence to support a finding to be made.  However this does not mean there was sufficient evidence to determine that the alleged action / inaction should not be put to Mr Maher.

3. Council has not received the witness statements – will these be included in the final report?

Yes, once the investigation has been finalised all evidence including witness statements will be attached to the investigation report.[72]

  1. [104]
    While Council had prudently raised these concerns with the external investigator ahead of issuing the allegations to Mr Maher on 18 July 2018, its later attention to these salient points was neglected at the point of issuing the Notice to Show Cause to Mr Maher on 23 August 2018.  That error in the exercise of procedural fairness to Mr Maher has contributed to my finding that while Council's management action was reasonable, it was not taken in a reasonable way.  This consideration is elaborated later in this Decision under "Consideration – Show Cause Notice".

Allegation 6(d)(i) contained material known to be false

  1. [105]
    Mr Maher submitted that:

Allegation 6(d)(i) refers to the Appellant disparaging another employee's husband.  The Respondent gave evidence that the person disparaged was actually that employee's new partner or boyfriend, a fact they had been aware of throughout the entire process.[73]

  1. [106]
    At the Hearing, the identity of the particular disparaged person in this instance was confirmed in the following exchange:

Mr Maher: Okay.  So in my response to the allegations, I have said that that conversation was in relation to the boyfriend, not the husband?

Mr Stewart-Harris: Right.

Mr Maher: So what I'm asking is, in the process of determining what to move ahead with in the Show Cause Notice, did you think that you should check the evidence to see whether my assertion of boyfriend might've been more correct than the allegation saying husband?

Mr Stewart-Harris: I see what you're driving at.  In my mind, and having some regard to – to this incident, if you like, it was quite clear to me that we were talking about her current partner, and I accept that the word used in the – the allegation document, as it refers to "husband".  It was clear to me that that was her partner at the material time, which you've described as a boyfriend.  I'm comfortable with that.  But that was what I understood that to be, a reference to not necessarily her estranged husband to whom she is still married.[74]

  1. [107]
    Mr Maher attributed undue emphasis to what relational precision the disparaged person had to his colleague.  I appreciate Mr Stewart-Harris's straightforward explanation - and would observe that the key point missed by Mr Maher was why such commentary need be made at all.
  1. [108]
    In my mind, this point is not elevated to even a mere blemish in the process conducted by Council.

The notice of the various allegations provided to Mr Maher on 18 July 2018 did not comply with the requirements of s 283(1)(a)(iii) of the LGR

  1. [109]
    While Mr Maher has identified this as a deficiency at the point Council advised the allegations to him for his response, I have addressed this complaint in the next section 'Consideration – Show Cause Notice'.

Policies / procedures / legislation that may have been breached was not identified for each allegation

  1. [110]
    While Mr Maher has identified this as a deficiency at the point Council advised the allegations to him for his response, I have addressed this complaint in the next section 'Consideration – Show Cause Notice'.
  1. [111]
    Relevant to this period, though, I note that Mr Maher did email Ms Haldane on 25 July 2018 to request provision "…via email of policies, procedures, as well as the titles of legislation, that Council is relying on in relation to this matter."[75]  Mr Maher's request was not unreasonable, in light of both Council's own earlier similar inquiry of the external investigator and the express invitation to contact Ms Haldane in the event that Mr Maher wished to clarify any aspect of the process.[76]  By that time, Mr Maher had received the allegations and was absorbed in preparing his response.  It was an entirely reasonable question but was essentially rebuffed with the reply that Mr Maher himself should first identify what policy he requires and that would be emailed to him.  In my view, more is required to support an employee's reasonable request in those circumstances.

Timeframe provided for Mr Maher to respond to allegations was unreasonable

  1. [112]
    Council provided an initial timeframe of six days for Mr Maher to consider his response to the allegations against him. 
  1. [113]
    Dissatisfied with the time provided, Mr Maher sought 14 days of additional time in which to do so.  Council agreed to a further seven days, so Mr Maher was provided with 13 days response time in total.  That is not an unusual period for the provision of a written response in these types of matters.  Yet a written response was not actually required by Council.
  1. [114]
    While Mr Maher elected to prepare a written response to the allegations and present that to the investigator in lieu of engaging in an oral interview, Council had only required him to consider his response and attend at an interview to discuss the matters. 
  1. [115]
    That Mr Maher was suspended at that time also meant that his days were free to devote to the consideration of his response.
  1. [116]
    The 'Notification to attend investigation interview' letter, attaching the 15 allegations, did explain that (emphasis added):

The allegations made against you are set out in the attachment to this correspondence.  Mr Edwards will be able to provide you with additional details at the interview in regards to the attached allegations.

As you are currently stood down, your interview with Mr Edwards is scheduled to occur with enough notice to provide you a sufficient time to consider your response before attending the interview.[77]

  1. [117]
    Further, Council's Disciplinary Procedure states that procedural fairness requires:
  • The employee being provided with an opportunity to be heard, including being given prior notice of the matter against him / her, a fair opportunity to answer it and the opportunity to present their own case;[78]

Mr Maher was afforded procedural fairness with respect to response timeframe.

Unreasonable delay between Mr Maher's suspension on 24 May 2018 and the provision of allegations on 18 July 2018

  1. [118]
    With respect to Mr Maher's assertion that Council unreasonably delayed in providing him with the allegations, I do not agree that is the case in these circumstances. 
  1. [119]
    The chronology detailed at paragraph [35] shows that Mr Maher was suspended from duty on 24 May 2018 and the Notification to Attend Investigation Interview letter from Council attaching the allegations was dated 18 July 2018 – a period of less than two months. 
  1. [120]
    The Suspension Letter provided to Mr Maher on 24 May 2018 outlined the process that Council intended to embark upon, with respect to the investigation.  Mr Maher was invited to contact either Mr Stewart-Harris or Ms Haldane, in the event that he wished to clarify any aspect of the process so outlined. 
  1. [121]
    Having determined to appoint an external investigator, Council did not rest on its laurels but emailed Livingstones to secure their services immediately.[79]
  1. [122]
    It could not be said that Mr Maher 'heard nothing' for almost two months either.  Once the engagement details and the brief had been established with the external investigator, Mr Maher was notified that one had been appointed.  That correspondence was issued to him a little over a week since his suspension.[80] 
  1. [123]
    It took approximately three weeks for the external investigator to interview team members and draft the allegations such that they could be put to Mr Maher. 
  1. [124]
    In these circumstances, I believe that the period of time that had elapsed was not unreasonable because:
  1. Council determined to engage an external investigator to conduct the process.  An appropriate provider was required to be sourced, a scope of work agreed and quoted, and the external investigator briefed by Council management. 
  1. Due to the Council's rural location, travel arrangements were required to be made to enable the external investigator to personally interview 7 staff members[81] and analyse their responses.  That work had to be finalised before Mr Maher could be interviewed.

c) There were a significant number of allegations to be drafted arising from interviews with team members.  Once drafted by the external investigator, the allegations were provided to Council for its consideration and confirmation.  Only once approved could the allegations be put to Mr Maher for his consideration and response.  That was done as an attachment to the Notification to attend investigation interview letter dated 18 July 2018 that was provided to Mr Maher.

Independent witnesses not interviewed

  1. [125]
    In Mr Maher's closing submissions filed on 2 June 2021, he summarised instances of Council's management action that he considered was either unreasonable or taken in an unreasonable way or both.  One of those was:

L. Failing to fully investigate the issues – independent witnesses not interviewed – allegations;[82]

  1. [126]
    Mr Maher elaborated that:

Allegation 7 refers to an event that occurred over 2 years prior to the issue of the allegations.  It also involves an independent witness, a person not employed by the employer.  No evidence was produced of that independent person having been interviewed.[83]

  1. [127]
    At the Hearing, Mr Maher stated:

Mr Maher: …The woman that was at the house, to my knowledge, was never interviewed.[84]

  1. [128]
    No response was offered to that particular complaint.
  1. [129]
    Council's Disciplinary Procedure states that (emphasis added):

The length and depth of an investigation will vary according to the circumstances at hand.  To establish the facts of a matter, the investigation process may encompass the following:

  • The collection and assessment of relevant information and evidence;
  • Conducting interviews with team members and / or other relevant parties, who are suspected to be able to provide insight into the matter;
  • Documenting all gathered information and evidence.[85]

The effect of that provision is that it was open to Council to elect to interview that witness or not.  I do not think it unreasonable that Council chose not to do so in this case.

  1. [130]
    I imagine that Council gave consideration to a number of factors when determining whether or not to also interview the woman regarding that particular allegation.  That may have included that the incident was said to have occurred over two years ago, the woman may or may not have remained a resident in the community, there were two Council employees that were able to provide their separate accounts of the incident, the desirability of confidentiality in the investigation phase and that the nature of the incident.

Consideration – Show Cause Notice

  1. [131]
    Mr Maher submitted that the following acts or omissions demonstrated that the management action taken by Council was not reasonable and / or not taken in a reasonable way, with respect to the Show Cause Notice:
  1. The notice of the various allegations provided to Mr Maher did not comply with the requirements of s 283(1)(a)(iii) of the LGR - and the policies / procedures / legislation found to have been breached were not identified for each allegation.
  1. Council issued the Show Cause Notice to Mr Maher before it had received the final version of the investigation report or considered the evidence gathered to support the conclusions drawn.
  1. Mr Maher believed there to be some uncertainty as to whether the allegations found not to be substantiated could be prosecuted at another time.
  1. Council presented the Show Cause Notice to Mr Maher without error checking.

e) The wording contained in the Suspension Letter was altered in the Show Cause Notice.

The notice of the various allegations provided to Mr Maher did not comply with the requirements of s 283(1)(a)(iii) of the LGR - the policies / procedures / legislation found to have been breached were not identified for each allegation

  1. [132]
    Relevant to Mr Maher's complaint is the LGR s 283.  That section provides that (emphasis added):

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee—
  1. (a)
    notice of the following—

 (i)  the disciplinary action to be taken;

  1. (ii)
     the grounds on which the disciplinary action is taken;
  1. (iii)
     the particulars of conduct claimed to support the grounds; and
  1. (b)
     a reasonable opportunity to respond to the information contained in the notice.
  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [133]
    Neither suspension nor investigation are 'disciplinary actions'; notwithstanding both are steps in the disciplinary process, as I have earlier explained.  The point at which strict compliance with s 283 must occur is before disciplinary action is taken.  In this case, that is within the Show Cause Notice provided to Mr Maher by Council on 23 August 2018.  That correspondence clearly explained that:

Before Council makes any decision about your ongoing employment you are invited to "show cause" as to why disciplinary action, up to and including termination of your employment should not be taken.[86]

  1. [134]
    I have considered the question of whether the various allegations were sufficiently particularised and grounds adequately explained with respect to s 283 of the LGR in Maher v Isaac Regional Council.[87]  In that earlier Decision, I observed that:

Were the allegations sufficiently particularised?

  1. [27]
    Discipline of local government employees such as Mr Maher is provided for by s 197 of the Local Government Act 2009 (Qld), and by the Local Government Regulation 2012 (Qld) at Ch 8 Pt 3 Div 1. In particular:

283 Employee to be given notice of grounds for disciplinary action

  1. (1)
    Before the chief executive officer takes disciplinary action against a local government employee, the chief executive officer must give the employee—

(a) notice of the following—

(i) the disciplinary action to be taken;

(ii) the grounds on which the disciplinary action is taken;

(iii) the particulars of conduct claimed to support the grounds; and

(b) a reasonable opportunity to respond to the information contained in the notice.

  1. (2)
    The grounds and particulars are taken to be the only grounds and particulars for the disciplinary action taken, and no other ground or particular of conduct can be advanced in any proceeding about the disciplinary action taken against the local government employee.
  1. [28]
    That legislation was considered in Promnitz v Gympie Regional Council,[88] by his Honour Justice Martin. His Honour found that:
  • Before disciplinary action is taken against a local government employee, the chief executive officer must give the employee a notice which states the disciplinary action to be taken, the grounds on which the disciplinary action is taken, and the particulars of the conduct claimed to support the grounds.[89]
  • The particularisation of the grounds for the disciplinary action and the conduct must be within the notice itself:[90]

It may be that the underlying hardship perceived by the Council is that, as it had already conducted an inquiry through an agent, the appellant had already been provided with an opportunity to say what she wished to say. Nevertheless, s 238 of the Regulation inserts a mandatory step before the taking of disciplinary action and it does so without reference to any earlier investigation that might have taken place.

  • Compliance with the processes set out in the regulations is mandatory, and non-compliance can form the basis of a finding that the termination was harsh, unjust or unreasonable.[91]
  1. [29]
    The Notice to Show Cause, issued on 23 August 2018, commences by saying:

On 24 May 2018 Isaac Regional Council (Council) suspended your duties in order to investigate a number of serious allegations relating to bullying and harassment and inappropriate conduct against you as a Council employee. The external investigator, Livingstones, have now conducted their independent investigation regarding the allegations. The investigation process included the collection and analysis of relevant information and evidence, conducting interviews with relevant employees to provide insight into the matters and documenting all information and evidence. A summary of the allegations were presented to you in a letter dated 18 July 2018, where you were required to respond to the allegations in a meeting held on 1 August 2018. You provided written responses only and made the decision to not participate in an oral interview.

I have set out below the findings of the investigation relating to the allegations of bullying and harassment and inappropriate conduct, together with details of the policies and procedures which Council alleges that you have breached.

  1. [30]
    I will turn then to consider just some of the allegations contained in the Show Cause Notice dated 23 August 2018 which were substantiated.

Allegation 6a and 6b

In conducting himself in the workplace, Mr Maher has acted inappropriately towards customers and/or staff, examples include:

  1. On at least one occasion Mr Maher verbally abused a customer over the telephone in front of Isaac Regional  Council staff.
  2. On at least one occasion Mr Maher has been rude and arrogant towards a member(s) of the public in dealing with matter(s) before referring them onto a Ranger.
  1. [31]
    Those allegations are lacking in particularity. They do not establish any dates, even approximately, or any specific language complained of, or any further relevant or identifying context.

Allegation 6c(ii)

In conducting himself in the workplace, Mr Maher has acted inappropriately towards customers and/or staff, examples include:

  1. On different occasions, said words to the effect of the following in front of an Isaac Regional Council staff member:
    1. Said words to the effect of "Fine as many people as possible" and/or "go hard and fine them".
  1. [32]
    Given the nature of Mr Maher's role as a manager, it is not abundantly clear in the Show Cause Notice as to how using those words may warrant a disciplinary penalty. It is noteworthy that the allegation acknowledges that it is not a direct quote but only "words to the effect of", which to some extent invites the possibility of a contextual explanation. That context was not forthcoming, as the allegation is accompanied by rather scant detail.
  1. [33]
    That is not to suggest the allegation is incapable of substantiation or warranting a penalty, but the alleged facts must be sufficiently particularised and any connection between the alleged facts and the alleged breach of policy or code of conduct must be particularised in order to allow a person a fair opportunity to respond.

Allegation 10

Mr Maher expressly, or impliedly by conduct, permitted and/or gave authorisation for Mr Josh Dowsett (Mr Dowsett), former Ranger, to possess a restricted weapon, commonly referred to as a 'bite/night stick' and/or 'police baton', in the workplace.

  1. [34]
    There is no particularisation in the Show Cause Notice about how Mr Maher "expressly, or impliedly by conduct" allowed Mr Dowsett to possess the "bite stick", or identification of precisely how that is a restricted weapon. Again, that does not mean the allegation was incapable of substantiation, but rather that Mr Maher was entitled to further detail in order to allow him to respond.

Allegation 12a and 12b

On one or more occasions Mr Maher has covertly or without awareness of other parties, recorded or made it appear as though Mr Maher had used a personal recording device to record, conversations with:

  1. Other members of Isaac Regional Council Staff;
  2. On at least on occasion with Councillor Peter Freeleagus on a Councillor Pound visit.
  1. [35]
    There is no explanation or particularisation of how that conduct is in breach of a council code of conduct or policy, or indeed a law. Again, that allegation may constitute such a breach, but it is incumbent upon the Council to explain that connection to Mr Maher and allow him a fair opportunity to respond.
  1. [36]
    The Council has listed a variety of factual allegations, followed by code of conduct and policy extracts, and expected Mr Maher to connect the dots. Those connections may be self-evident for the allegations of sexual harassment connecting to the sexual harassment policy, and for some of the other allegations. However, it is a far less clear connection between these factual allegations and the breach of a code of conduct or policy. It is incumbent upon the Council to make that connection and allow Mr Maher to respond. The fact that Mr Maher responded to the allegations in some manner does not mean that his complaints of a lack of particularity in some allegations are inherently unfounded.
  1. [37]
    Mr Maher may have been furnished with more fulsome details at some other time, such as during the investigation or after the termination, but his Honour Justice Martin in Promnitz was clear: the particularisation must be within the notice itself and not merely within the preceding investigation process.

Finding

  1. [135]
    A fatal flaw in this process was that the particularisation of the allegations and explanation of the grounds at the point of the provision of the Show Cause Notice to Mr Maher did not comply with the requirements of s 283 of the LGR.  That was considered and explained by Justice Martin in PromnitzThat contributes to my conclusion that Council's management action was not taken in a reasonable way, with respect to this critical component.
  1. [136]
    I note that similar concerns were also identified by Council in email exchanges with the external investigator regarding the development of the draft allegations put to Mr Maher,[92] that formed an attachment to the Notification to attend investigation interview letter dated 18 July 2018. 
  1. [137]
    While strict adherence to the requirements of s 283 of the LGR were not required at the point of presenting allegations to Mr Maher within that earlier correspondence on 18 July 2018, it was certainly necessary at the point of issuing the Show Cause Notice. 
  1. [138]
    Mr Stewart-Harris gave evidence that Council held some concerns about the allegations originally put to Mr Maher on 18 July 2018 and email exchanges between Council and the external investigator were also in evidence.  Those are detailed at paragraphs [100] – [102] of this Decision.
  1. [139]
    The Respondent has argued that:

The Show Cause Notice was not disciplinary action… therefore, section 283 of the LG Regulation does not apply to this aspect of the management action under consideration in this appeal.[93]

  1. [140]
    However, I would observe that Council's Disciplinary Procedure contains the heading "5. Formal Disciplinary Action" and that the first sub-heading "5.1 Notice of Proposed Disciplinary Action" appears immediately beneath it.  The relevant extract from Council's Disciplinary Procedure states:

5.1 Notice of Proposed Disciplinary Action

If IRC believes that there is a valid case to be answered by the employee, the employee may be asked to attend a meeting to discuss the issue(s) of concern.  Before any formal disciplinary process is commenced, the employee will be provided with a written "Notice of Proposed Disciplinary Action".  The "Notice of Proposed Disciplinary Action" will: -

  • Advise who will be in attendance;
  • Give the employee advance notice of the meeting date, time and location and allow adequate opportunity for the employee to prepare or respond;
  • Invite the employee to bring a support person and / or Union representative to the meeting if required;
  • Outline the disciplinary action that may be taken if the allegation/s are substantiated;
  • Outline the grounds on which the disciplinary action is taken;
  • Outline the particulars of conduct (facts) claimed to support the grounds.
  1. [141]
    Even if I were to be wrong on the point that the principles of Promnitz and s 283 of the LGR applied to the content of the Notice to Show Cause, the extract above makes clear that Council's Disciplinary Procedure provides that "the grounds on which the disciplinary action is taken" and "the particulars of conduct (facts) claimed to support the grounds" must be included in this correspondence.

Council issued the Show Cause Notice ahead of receiving the final version of the investigation report or considering the evidence gathered to support its conclusions

  1. [142]
    Mr Maher argued that it was unreasonable for Council to issue him with the Show Cause Notice before it received the final version of the investigation report from the external investigator or considered the evidence gathered to support the conclusions of the report.
  1. [143]
    With reference to the chronology at paragraph [35], it is noted that Council received the draft investigation report, without attachments, on 22 August 2018.  The next day, Council issued the Show Cause Notice to Mr Maher.  Not until 5 days thereafter did Council receive the full investigation report, including the supporting evidence.  That timeline is not disputed between the parties.
  1. [144]
    Mr Stewart-Harris's evidence was that he had confirmed (through Ms Farmer) that the findings in the report were final and so proceeded to consider the detailed summaries in the report of the evidence gathered in the course of the investigation. 

Mr McMillan: …what material did you have regard to in forming the view that he should be asked to show cause?

 

Mr Stewart-Harris: Look, there were a number of matters.  It was a decision that was taken with – with due consideration, so we – and when I say we, the manager of people and performance, the chief executive and myself all considered the draft investigation report.  I had raised in discussion the question about the fact that it was a draft report, and later on the 22nd I know that Ms Farmer had raised with Mr Edwards the question about whilst it was a draft report, was it draft in a process sense or a content sense?  So…

 

Mr McMillan: Yes?

 

Mr Stewart-Harris: …you know, was the content settled, in particular, and he came back and said, "yes.  It's a draft report.  However, the findings are settled or are final."  So we took some comfort from that that the report had sufficient robustness for us to be able to act upon.  We were conscious of the time that this matter had taken time to occur, and we were keen to get the matter, at least, in a structured way, moved forward, as much for Mr Maher's benefit as anyone else's, and we considered in detail the summaries that were provided in Mr Edwards's draft report, the summaries of the witness statements that are shown – they're straight anecdotal lifts and the like – and, I guess, actively turned our mind in each case through that report to the allegation, the evidence that was being tendered in the report by Mr Edwards, and the conclusions, then, that he came to, and satisfied ourselves that that was reasonable in coming to those conclusions.  And we agreed with the fact that there were about 10 allegations listed at the end of the report where Mr Edwards concluded that there wasn't sufficient evidence to substantiate…[94] 

  1. [145]
    I accept Mr Stewart-Harris's evidence that confirmation was received from Livingstones, via Ms Farmer, in the terms he described.  However, I also recognise the covering email from Livingstones sent to Council attaching the draft investigation report on 22 August 2018 represents that document somewhat differently:

Please find attached draft preliminary investigation report for your consideration and review.  Ethan has asked me to send this on his behalf while he is out of the office.

Once Ethan has received your feedback, he will provide you with the final version and attachments.[95]

  1. [146]
    On that basis, Mr Stewart-Harris stated that Council could be satisfied that the allegations, if proved, would result in disciplinary action being taken against Mr Maher.  Thus Council proceeded to issue the Notice to Show Cause to Mr Maher.[96]
  1. [147]
    Mr Stewart-Harris stated that as Mr Maher had already been given the opportunity to make a detailed response to the allegations on 1 August 2018, procedural fairness had been afforded to Mr Maher within the investigation by the time the Notice to Show Cause was issued on 23 August 2018.[97]
  1. [148]
    While I appreciate the broad sentiment expressed by Mr Stewart-Harris in his oral evidence to the effect that the process had rather dragged on and that it was to everyone's benefit that the substantiated allegations now be expedited, it is nonetheless incumbent upon Council itself to "weigh up the evidence and determine, within a reasonable timeframe, whether it is more probable than not that the concern(s) or allegations have been proven."  It is certainly challenging to discharge that duty in the absence of all the supporting evidence and a final investigation report. 

Finding

  1. [149]
    A more cautious and prudent approach by Council would have been to require the external investigator give high priority to the provision of the final investigation report including attachments, to best enable Council to deliberate on the matters in their entirety and determine the appropriate progression with full confidence.  In my view, that omission goes beyond a mere blemish.

Uncertainty as to whether the allegations found not to be substantiated could be prosecuted at another time

  1. [150]
    Mr Maher objected to the following statement contained in the Show Cause Notice (emphasis added):

You will note that Allegation 2b, 5, 6ci, 6ciii, 6dvi, 6fi-xi, 11a, 11b, 12c, 13 and 15 are not included.  This is due to the investigation demonstrating to Council that these matters have either been unsubstantiated or Council does not feel they warrant disciplinary action at this time.[98]

  1. [151]
    Mr Maher asserted that he interpreted that to mean that those allegations were "…either unsubstantiated or parked by the employer for later use."[99] 
  1. [152]
    The Respondent submitted that:

Given the appellant's 36 years' experience as a police officer…he should have expected that if the Council sought to pursue those allegations at some future time, he would have the opportunity to respond to them at that stage.[100]

  1. [153]
    While the Respondent's observation is correct, that does not allay Mr Maher's apparent concern that those particular unresolved matters were left hanging over his head. 
  1. [154]
    In the event that Mr Maher genuinely misunderstood the status of those allegations, that uncertainty may have been disconcerting for him.
  1. [155]
    Mr Stewart-Harris explained at the Hearing that the words were "in hindsight, probably superfluous"[101] - and I agree.  Mr Maher asserted that a Show Cause Notice should be more carefully prepared, especially in circumstances where an employee faces potential termination of employment – and I agree with that too.  However, in considering the weight I give to that particular point, I do not agree with Mr Maher that it be elevated in importance to be "grossly unreasonable management action."  That is rather overstating the case.  In my view, the Respondent's characterisation of the confused wording as a mere blemish is the more balanced and appropriate position.

Show Cause Notice issued to Mr Maher without error checking - wording contained in the Suspension Letter was altered in the Show Cause Notice

  1. [156]
    Mr Maher complained of errors and alteration of wording between the Suspension Letter and Show Cause Notice provided to him, specifically:[102]

O. Presenting the show cause notice to the Appellant without error checking – show cause notice;

P. Altering the wording of the Suspension Letter in the show cause notice;

  1. [157]
    Mr Maher noted that the reason for his suspension is stated as being the employer's belief "that there is cause to undertake an investigation."[103]  He complained that the Show Cause Notice instead sought to recast the situation, instead stating that the suspension was "to investigate a number of serious allegations relating to bullying and harassment and inappropriate conduct"[104] made against Mr Maher. 
  1. [158]
    Mr Maher's submission is that Council has made an "attempt to change the rules after the matter has commenced" and that it is a further example of procedural unfairness and unreasonable management action in the conduct of the process.[105]
  1. [159]
    In my view, that rather over-eggs the pudding.  While I agree that precision is important in these matters, I find that misstep to be a mere blemish.  It is not an error or oversight of such significance that it would constitute an affront to procedural fairness.

Finding

  1. [160]
    In summary, I find that Mr Maher was not provided with adequate particularisation of the allegations against him, and explanation of the grounds, in a manner compliant with the requirements of s 283 of the LGR or Council's Discipline Procedure.  Those were fatal flaws and are more than a mere blemish. 
  1. [161]
    Those problems further contribute to my determination that while Council acted reasonably to issue Mr Maher with a Show Cause Notice in the context of several substantiated allegations, that management action was not taken in a reasonable way and was in fact procedurally unfair. 

Consideration - Process

  1. [162]
    Mr Maher submitted that the following acts or omissions demonstrated that the management action taken by Council was not reasonable and / or not taken in a reasonable way, with respect to the process undertaken:
  1. Mr Maher contended that the various allegations should have been provided to him at the time of his suspension from duty and that the delay in doing so was unjustified.

b) Mr Maher argued that the note taking in the suspension meeting was unreasonable.

c) Mr Maher asserted that Council's failure to record the suspension meeting was unreasonable.

Various allegations should have been provided to Mr Maher at the time of his suspension from duty - delay in providing allegations to Mr Maher was unjustified

  1. [163]
    Mr Maher's complaints that the various allegations should have been provided to him at the time of his suspension - and that Council unreasonably delayed doing so - has been addressed earlier in this Decision and need not be repeated here.

Note taking in the suspension meeting

  1. [164]
    The suspension meeting was held to advise Mr Maher of Council's decision to suspend him, pending an investigation to "establish the facts relating to (his) possibly unacceptable conduct"[106] and to provide information regarding the process to be undertaken.
  1. [165]
    That information was primarily contained in the Suspension Letter dated 24 May 2018 that was provided to Mr Maher at the meeting.[107]  Only limited supplementary advice was provided by Mr Stewart-Harris at the meeting, as contained in his meeting notes.  I accept that those notes were prepared by Mr Stewart-Harris for his own record.  There is no requirement that formal 'minutes' be taken and kept.
  1. [166]
    While I note that Council's Disciplinary Procedure encourages documentation of "disciplinary discussions, meetings and actions" to be made and retained, the elements of inclusion are not specific to meetings of this nature.  However, as I have earlier observed, and with respect to the Flow Chart contained in Council's Disciplinary Procedure,[108] 'suspension' is not a disciplinary action but rather a step in the disciplinary process.  To that end, while Mr Stewart-Harris's notes may not have been placed on the employee's personnel file they were nonetheless "…concise, factual and specific and stored confidentially."[109] 

Failure to record the suspension meeting

  1. [167]
    Mr Maher complained that Council should properly have recorded the conduct of the suspension meeting.  I do not agree that is required.
  1. [168]
    I have found Mr Stewart-Harris's notes listing the matters to be covered at the meeting with Mr Maher to be a reliable contemporaneous record of the conversation that took place.  That is sufficient. 
  1. [169]
    I would observe that an avid predilection to making recordings of conversations is misplaced and does not represent best practice.
  1. [170]
    Mr Stewart-Harris's determination not to record the suspension meeting does not offend any provision within Council's Disciplinary Procedure and is entirely consistent with the usual approach taken in these types of matters.

Costs

  1. [171]
    In light of my conclusions above, an order will be made in favour of Mr Maher to allow the appeal and set aside the Respondent's decision dated 8 August 2019. I will now consider the issue of costs.
  1. [172]
    In Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[110] Justice Davis considered the issue of costs in a Workers' Compensation Appeal and relevantly stated the following:

[16] The power to award costs under s 558 of the WCR Act is not limited like the power to award costs given by s 545 of the IR Act.   It therefore follows that costs ought ordinarily follow the event.   While costs would normally follow the event of the appeals to the QIRC, there is a discretion to make some other costs order.  In Davidson v Blackwood, the point is made that in the absence of any reasons to make any other costs order, costs follow the event.  That does not remove the discretion to make some other order and does not extinguish the necessity to give reasons why any costs order was made…

 

  1. [1]
    Section 558 provides as follows:

  558 Powers of appeal body

  1. (1)
    In deciding an appeal, the appeal body may—
  1. (a)
    confirm the decision; or
  1. (b)
    vary the decision; or
  1. (c)
    set aside the decision and substitute another decision; or
  1. (d)
    set aside the decision and return the matter to the respondent with the directions the appeal body considers appropriate.
  1. (2)
    If the appeal body acts under subsection (1)(b) or (c), the decision is taken for this Act, other than this part, to be the decision of the insurer.
  1. (3)
    Costs of the hearing are in the appeal body’s discretion, except to the extent provided under a regulation.” (emphasis added)
  1. [2]
    By s 558(3), what is “in the appeal body’s discretion” (here the QIRC ) are the “costs of the hearing”.  The “costs of the hearing” may be quite a different thing to the “costs of the appeal”.
  2. [3]
    The power to award costs is not a common law power.  It is one granted by statute.  Consequently, if the QIRC does not have a power vested by statute to award costs of the appeal beyond the costs of the hearing, then it cannot do so.

  1. [4]
    However, the QIRC’s only power to award costs in this case probably comes from the WCR Act, not restricted by s 545 of the IR Act.[111]  In determining the proper construction of s 558(3), and in particular the meaning of the term “costs of the hearing”, regard must be had to the context and purpose of the section having regard to the statute as a whole.[112]
  2. [5]
    In my view, the legislature has clearly deliberately limited the costs which can be recovered on an appeal to the QIRC.  It has drawn a clear distinction between different parts of the appeal process.  While the legislation envisages that the appeal process may involve a conference, no power to award costs associated with a conference is given.  The costs are limited to the “costs of the hearing”.
  3. [6]
    The law of costs recognises “costs of action” and “costs of trial”.  In my view, they equate to “costs of appeal” and “costs of hearing” respectively.  The distinction is explained by Professor Dal Pont in his work Law of Costs[113] in these terms:

“1.19   An order for ‘costs of the action’ includes not only costs of the trial but also those of interlocutory proceedings and their preparation (such as costs relating to interrogatories, notices to produce and admit and preparation of counsel’s brief). These represent the costs to which the successful party in the action is entitled on taxation or assessment, in the absence of an order to the contrary. The ‘costs of the trial’ cover only the costs incurred in the conduct of the trial itself, not any interlocutory matters preceding the trial. In any case, as an action ends with judgment, each of these orders excludes costs incurred after final judgment. Costs of executing the judgment are therefore not costs of the action (or of the trial) but are payable of the execution.”

  1. [7]
    I accept that distinction.  I consider that the term “costs of the hearing” in s 558(3) is equivalent to “costs of trial” recognised by the law of costs and explained by Professor Dal Pont.
  2. [8]
    Consequently, when the QIRC is exercising a discretion under s 558(3) of the WCR Act, the order which should be made is not “costs of the appeal” but “costs of the hearing” and costs assessors should assess the “costs of the hearing” as they would “costs of trial” as explained by Professor Dal Pont.
  1. [173]
    Section 132(1) of the Workers' Compensation and Rehabilitation Regulation 2014 (Qld) provides that "A decision to award costs of a proceeding heard by an industrial magistrate or the industrial commission is at the discretion of the magistrate or commission."
  1. [174]
    I accept that costs in Workers' Compensation Appeals ordinarily follow the event. Had the Respondent not defended this proceeding, Mr Maher would not have incurred the expense which he did during the hearing of this matter. An award of costs in favour of Mr Maher is reasonable and appropriate, not to punish the Respondent for defending the proceeding but rather out of fairness to Mr Maher in ensuring appropriate indemnification. For those reasons, a costs order will be made in favour of Mr Maher.
  1. [175]
    For the reasoning outlined in Workers' Compensation Regulator v Queensland Nurses and Midwives' Union of Employees (No 2),[114] the Respondent will only be required to pay the "costs of the hearing" rather than the "costs of the appeal".

 Conclusion

  1. [176]
    Mr Maher had been employed by Isaac Regional Council for only two years before various concerns regarding his conduct surfaced.
  1. [177]
    Mr Maher was suspended on pay, an external investigation was held and a disciplinary process ensued following an assessment that numerous conduct allegations were substantiated, or partially substantiated.  A Show Cause Notice was subsequently issued to Mr Maher, on the grounds of breaches of the Council's Code of Conduct and / or Workplace Bullying and Harassment Policy. 
  1. [178]
    As a result of the preceding three-month process, Mr Maher sustained a psychological injury in August 2018.
  1. [179]
    Mr Maher's application for workers' compensation was denied by LGW on the basis that Council had exercised "reasonable management action, taken in a reasonable way". 
  1. [180]
    LGW's decision that s 32(5) of the Act operated to exclude Mr Maher's psychological condition from the definition of 'injury' was confirmed by the Regulator on 8 August 2019.
  1. [181]
    Mr Maher appealed the Regulator's decision.  That is the subject of this Decision.
  1. [182]
    In my view, Council took reasonable management action against Mr Maher in the circumstances – but it was not taken in a reasonable way. Specifically, as reasoned above:
  • It was reasonable for Council to suspend Mr Maher, but not reasonable for them to  do so without providing earlier opportunity for Mr Maher to contact a support person and without giving him any prior notice of the purpose of the meeting.
  • It was reasonable for Council to issue Mr Maher with a Show Cause Notice, but not reasonable for it to not fully particularise the allegations and grounds and to issue the letter prior to receiving a final copy of the external investigation report.
  1. [183]
    There were problems inherent in both the 'Suspension' and 'Show Cause' phases of the process.  That resulted in procedural unfairness to Mr Maher, beyond what could be characterised as a mere blemish.
  1. [184]
    Mr Maher had no prior notice that the suspension meeting would take place.  He was not notified in advance of the agenda of that meeting nor had any time to prepare to be heard at that meeting.  While it is a matter of dispute as to whether Mr Maher was offered a support person or not, taken at its highest Council only afforded that opportunity to Mr Maher once the meeting was underway and before its purpose was revealed.  A further impediment to any support person to be potentially arranged was that the meeting was called very close to "knock off time."  It is noteworthy that two management representatives conducted the suspension meeting with Mr Maher.  I have found that the combination of those omissions resulted in a lack of procedural fairness afforded to Mr Maher at the point of his suspension from duty.
  1. [185]
    The process was further flawed in that the particularisation of the allegations and explanation of the grounds at the point of the provision of the Show Cause Notice to Mr Maher did not comply with the requirements of s 283 of the LGR.  Even if I were to be wrong on the point that the principles of Promnitz and s 283 of the LGR applied to the content of the Notice to Show Cause, Council's Disciplinary Procedure provides that "the grounds on which the disciplinary action is taken" and "the particulars of conduct (facts) claimed to support the grounds" must be included in the correspondence.  The Show Cause Notice did not properly comply with that requirement.
  1. [186]
    In addition, Council issued Mr Maher with the Notice to Show Cause before it received the final version of the investigation report or considered the entirety of the evidence gathered by the external investigator to support the conclusions of the report.  Notwithstanding Council's efforts to establish the status of the draft investigation report provided, including whether the outcomes contained therein could be considered final – the more prudent approach would have been for Council to require the external investigator give high priority to finalising the investigation report including attachments, to best enable Council to deliberate on the matters in their entirety and determine the appropriate progression with full confidence.  I consider that also goes beyond a mere blemish.
  1. [187]
    The combination of those problems meant that while Council reasonably determined to exercise management action with respect to Mr Maher in the circumstances, that management action was not taken in a reasonable way.  It was in fact procedurally unfair. 
  1. [188]
    After considering whether Council had an obligation to give Mr Maher prior notice of the suspension meeting, inform him of its purpose and advise him that he may be accompanied by a support person, I have determined that it was required to do so.  That Council failed to do so, leads me to find that while the management action exercised to suspend Mr Maher was reasonable, it was not taken in a reasonable way.
  1. [189]
    However, even if I were to be wrong on that point, I have also found that the particularisation of the allegations and explanation of the grounds at the point of the provision of the Show Cause Notice to Mr Maher did not comply with the requirements of s 283 of the LGR or Council's own Disciplinary Procedure.  Further, that the determination to issue Mr Maher with a Notice to Show Cause before the final investigation report and attachments was provided and could be considered was not prudent or appropriate.  On those grounds too, I find that the management action was not taken in a reasonable way.
  1. [190]
    I order accordingly.

Orders

1. The appeal is allowed.

2. The decision of the Respondent dated 8 August 2019 is set aside.

3. The Appellant's application for compensation under the Workers' Compensation and Rehabilitation Act 2003 (Qld) is accepted.

4. The Respondent is to pay the Appellant's costs of the hearing, to be agreed or, failing agreement, to be subject to a further application to the Commission.

Footnotes

[1] Respondent’s Statement of Facts and Contentions, filed 30 March 2020, page 2, [19].

[2] Exhibit 1, page 14, [19.1.2], Report of Dr Riccardo Caniato, Psychiatrist, dated 5 December 2018.

[3] Exhibit 1, page 14, [19.2], Report of Dr Riccardo Caniato, Psychiatrist, dated 5 December 2018.

[4] Correspondence from Mr M. Rogers, Senior Review Officer, Review Unit, OIR to Mr T. Maher, dated 8 August 2019, page 2.

[5] Correspondence from Mr M. Rogers, Senior Review Officer, Review Unit, OIR to Mr T. Maher, dated 8 August 2019.

[6] Maher v Isaac Regional Council [2020] QIRC 191.

[7] Correspondence from Mr M. Rogers, Senior Review Officer, Review Unit, OIR to Mr T. Maher, dated 8 August 2019, page 1.

[8] Correspondence from Mr M. Rogers, Senior Review Officer, Review Unit, OIR to Mr T. Maher, dated 8 August 2019, page 2.

[9] Kavanagh v Commonwealth (1960) 103 CLR 547, 558–559. 

[10] Church v Workers' Compensation Regulator [2015] ICQ 031, [27]; State of Queensland (Queensland Health) v Q-Comp and Beverley Coyne (2003) 172 QGIG 1447.

[11] [2019] QIRC 203, [101], citing Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262, [136]. 

[12] Respondent’s Statement of Facts and Contentions, filed 30 March 2020, page 5.

[13] Exhibit 1, page 14, Report of Dr Richard Caniato, Psychiatrist, dated 5 December 2018; Respondent’s Statement of Facts and Contentions, filed 30 March 2020, page 4, [34].

[14] T 1-2, lines 32 – 38.

[15] [2014] ICQ 9, [47].

[16] [2016] ICQ 10, [57].

[17] [2020] QIRC 097, [25] – [28].

[18] Sabo v Q-COMP [2010] ICQ 47, [21] (Hall P).

[19] Lawton v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 99, [65] (Deputy President O'Connor) ('Lawton') citing Keen v Workers' Rehabilitation and Compensation Corporation [1998] SASC 7056; (1998) 71 SASR 42, 47-48 (Lander J).

[20] Delaney v Q-COMP Review Unit [2005] QIC 11; (2005) 178 QGIG 197, 197 (President Hall) ('Delaney').

[21] Q-COMP v Hohn [2008] QIC 56; (2008) 187 QGIG 139, 146 (President Hall).

[22] Lawton (n 19) [68] (Deputy President O'Connor).

[23] WorkCover Queensland v Kehl [2002] ICQ 23; (2002) 170 QGIG 93, 94 (President Hall).

[24] Prizeman v Q-COMP [2005] ICQ 53; (2005) 180 QGIG 481, 481 (President Hall).

[25] Waugh v Simon Blackwood (Workers' Compensation Regulator) [2015] ICQ 028, [41] (Martin J, President).

[26] Ibid [42].

[27] Hardy v Simon Blackwood (Workers' Compensation Regulator) [2015] QIRC 027, [15] (Martin J, President) ('Hardy').

[28] Respondent's closing submissions, filed 28 June 2021, Attachment A, pages 17 - 18.

[29] Respondent's closing submissions, filed 28 June 2021, page 2, [8], stated Mr Maher’s employment commenced on 29 March 2016.  The precise date is not material to this Decision.

[30] Respondent's closing submissions, filed 28 June 2021, page 3, [21],

[31] Appellant's closing submissions filed 2 June 2021, pages 12 – 13.

[32] Appellant’s Statement of Facts and Contentions filed 19 December 2020, List of Stressors.

[33] Transcript of Mention on 28 January 2021, T 1-7.

[34] Appellant's closing submissions filed 2 June 2021, page 1.

[35] Respondent's closing submissions, filed 28 June 2021, page 16, [72]; Bowers v Q-Comp [2005] QIC 513.

[36] Exhibit 1, pages 49 – 58.

[37] [2005] 178 QGIG 315.

[38] T 1 – 11, line 47.

[39] T 2 – 35, line 34; T 2 – 36, line 1.

[40] T 1 – 12, line 8; T 1 – 36, line 41.

[41] T 1 – 37, line 2; T 1 – 48, line 2.

[42] T 2 – 7, lines 36 – 39; Exhibit 4.

[43] Exhibit 1, page 72.

[44] T 2 – 7, lines 36 – 39.

[45] Exhibit 2.

[46] Exhibit 1, page 73.

[47] Exhibit 1, page 52.

[48] Exhibit 1, pages 53 and 58.

[49] Exhibit 1, page 51.

[50] Appellant's closing submissions filed 2 June 2021, page 2, [20].

[51] People and Performance Manager, Isaac Regional Council.

[52] T 1 – 29, lines 15 – 18.

[53] Local Government Regulation 2012 (Qld) 282.

[54] Exhibit 1, pages 53.

[55] Exhibits 3 and 4.

[56] T 2 – 14, lines 11 - 18.

[57] Exhibit 2; Exhibit 1, page 72.

[58] Exhibit 3.

[59] T 2 – 14, line 20.

[60] Appellant’s submissions page 4, [43].

[61] Exhibit 1, page 73.

[62] Exhibit 1, page 28, [11].

[63] Exhibit 2.

[64] Exhibit 1, pages 73 – 74.

[65] Exhibits 3 and 4.

[66] Appellant's closing submissions filed 2 June 2021, page 7, [77].

[67] Appellant's closing submissions filed 2 June 2021, page 7, [77].

[68] Exhibit 3.

[69] Appellant’s closing submissions filed 2 June 2021, page 7, [81]; Exhibit 1, pages 131 – 134.

[70] T 2 – 18, lines 40 – 44.

[71] Exhibit 1, page 117.

[72] Exhibit 1, pages 116 – 117.

[73] Appellant’s closing submissions filed 2 June 2021, pages 8 - 9, [92].

[74] T 2 – 30, lines 5 – 18.

[75] Exhibit 1, page 139 – 140.

[76] As contained in the Suspension Letter dated 24 May 2018.

[77] Exhibit 1, page 129.

[78] Exhibit 1, page 51.

[79] Exhibit 1, page 80.

[80] Exhibit 1, page 91.

[81] Exhibit 1, page 88.

[82] Appellant’s closing written submission, filed 2 June 2021, page 12.

[83] Appellant’s closing written submission, filed 2 June 2021, page 9, [92].

[84] T 1 – 17, line 38.

[85] Exhibit 1, page 52.

[86] Exhibit 1, page 37.

[87] [2020] QIRC 191, [27] – [38].

[88] Promnitz v Gympie Regional Council [2015] ICQ 011, (‘Promnitz’).

[89] Local Government Regulation 2012 (Qld) reg 283.

[90] Promnitz v Gympie Regional Council [2015] ICQ 011, [26].

[91] Ibid [28]-[29].

[92] Exhibit 1, pages 116 – 118.

[93] Respondent’s closing submissions, page 14, [64[.

[94] T 2 – 21, lines 20 – 44.

[95] Exhibit 1, page 173.

[96] T 2-24, lines 1 – 20.

[97] T 2-23, lines 20 – 26 – T 2 - 24, lines 1 – 19.

[98] Exhibit 1, page 35.

[99] Appellant’s closing submissions filed 2 June 2021, page 10, [96].

[100] Respondent’s closing submissions filed 28 June 2021, page 14, [65].

[101] T 2-22, line 44.

[102] Appellant’s closing submissions filed 2 June 2021, page 12.

[103] Exhibit 1, page 73.

[104] Exhibit 1, page 31.

[105] Appellant’s closing submissions filed 2 June 2021, page 10, [102].

[106] Exhibit 1, page 73.

[107] Exhibit 1, pages 73 – 74.

[108] Exhibit 1, page 58.

[109] Exhibit 1, page 57, [7].

[110] [2021] ICQ 13.

[111] Workers’ Compensation Regulator v Glass (2020) 4 QR 693.

[112] SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14] and [35]-[40], The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 93 ALJR 1106 at [32].

[113] Fourth edition, GE Dal Pont.

[114] [2021] ICQ 13.

Close

Editorial Notes

  • Published Case Name:

    Maher v Workers' Compensation Regulator

  • Shortened Case Name:

    Maher v Workers' Compensation Regulator

  • MNC:

    [2021] QIRC 313

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    10 Sep 2021

Appeal Status

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