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  4. Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) - [2021] QIRC 359

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Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 359

Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 359

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 359

PARTIES:

Connors, Phillip

(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO.:

PSA/2021/4

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

25 October 2021

MEMBER:

Power IC

HEARD AT:

On the papers

OUTCOME:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEE AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against a disciplinary decision – allegations substantiated – consideration of penalty – penalty imposed was fair and reasonable.

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 187, 188 and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Briginshaw v Briginshaw (1938) 60 CLR 336

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Mr Phillip Connors ('the Appellant') is employed by the State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) ('the Respondent') as a Clinician with the Forensic Disability Service ('FDS').
  1. [2]
    By letter dated 15 December 2020, the Respondent informed the Appellant of the decision to impose a disciplinary penalty of a reduction of remuneration level from pay point PO3(4) to PO3(02) ('the decision'), pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [3]
    By appeal notice filed on 5 January 2021, the Appellant appealed against the decision, pursuant to s 194(1)(b)(i) of the PS Act.

Appeal principles

  1. [4]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against. Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to impose the disciplinary penalty of reduction of remuneration level was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Background – substantiation of allegation

  1. [8]
    On 13 February 2020, a complaint was made by Mr Terry Spannari with respect to allegations against the Appellant of inappropriate conduct in the workplace.
  1. [9]
    Following receipt of the allegations, the Respondent approved the outsourcing of an investigation of the allegations to external provider, Mapien Pty Ltd ('Mapien'). Upon receipt of the report from Mapien ('the Investigation Report'), the Respondent reviewed the Investigation Report and determined that aspects of the investigation were not fully explored. The Ethical Standards Unit ('ES') proceeded to gather further information[5] which was provided to the Mr Stan Pappos, Administrator, FDS along with the Investigation Report for consideration. Mr Pappos did not concur with the Investigation Report finding but agreed with the findings from the further information gathered.
  1. [10]
    On 27 July 2020, the Appellant was issued with a show cause letter on disciplinary finding from Mr Pappos, outlining the following allegations with respect to inappropriate conduct and behaviour on 22 December 2019:

ALLEGATION ONE

It is alleged that on numerous occasions including, but not limited to, 22 December 2019 you engaged in inappropriate verbal behaviour towards Mr Terry Spannari, Forensic Officer, FDS by making derogator comments about Mr Spannari's work ethic.

…

ALLEGATION TWO

On 22 December 2019 you engaged in inappropriate conduct by pointing a knife toward Mr Terry Spannari in a threatening and aggressive manner.

  1. [11]
    On 18 August 2020, Guest Lawyers provided a response to the show cause letter on behalf of the Appellant.
  1. [12]
    On 12 September 2020, Mr Pappos issued a notice to show cause on disciplinary penalty letter to the Appellant, whereby allegation one was partially substantiated and allegation two was substantiated. Mr Pappos decided not to propose a penalty with respect to allegation one, however, proposed to impose a penalty of reduction of remuneration for allegation two. The Appellant was provided with 14 days to provide a response in relation to the proposed disciplinary action.
  1. [13]
    On 12 October 2020, the Appellant provided a response to the show cause letter on disciplinary penalty to Mr Pappos.
  1. [14]
    On 19 November 2020, an additional notice to show cause letter on disciplinary finding and penalty was sent to the Appellant which, inter alia, outlined a change of date of allegation two from 22 December 2019 to 21 December 2019. The Appellant was provided with a further opportunity to provide any relevant information to the revised date of allegation and the proposed disciplinary penalty of a reduction of remuneration.
  1. [15]
    On 30 November 2020, a response was provided by the Appellant with respect to the additional notice to show cause letter on disciplinary finding and penalty.
  1. [16]
    On 18 December 2020, a disciplinary penalty decision letter dated 15 December 2020 was emailed to the Appellant, substantiating the revised allegation two and imposed a disciplinary penalty of a reduction of renumeration level from PO3(4) to PO3(02).
  1. [17]
    This appeal relates to the decision of 15 December 2020 to substantiate allegation two and to impose the disciplinary penalty of a reduction of remuneration.

Submissions

  1. [18]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [19]
    The Appellant, in accordance with the Directions Order, filed submissions in support of his appeal notice. In summary, the Appellant submits that:
  1. (a)
    Mr Pappos made the second decision on 15 December 2020 and maintained the substantiated finding with the same disciplinary action made at first instance. However, the second decision was made on evidence provided by all parties relating to 22 December 2019 and not the revised date of 21 December 2019;
  1. (b)
    the first opportunity to review any information in relation to the allegations were on 28 July 2020;
  1. (c)
    allegation two is a serious allegation and has the potential to constitute a serious indictable offence;
  1. (d)
    the Appellant was informed that Mr Pappos can change the date and time of the alleged incident to 21 December 2019 as the allegation states 'on or around the 22 December'; and
  1. (e)
    there is uncertainty on the relevance of the evidence collected as the evidence relates to 22 December 2019 and not 21 December 2019.
  1. [20]
    The Appellant further submits that a substantial amount of correspondence has been exchanged where the Appellant had detailed his concerns with respect to the evidence, natural justice, procedural fairness and lack of impartial or objective decision making. The Appellant submits that these concerns were raised from the initial internal investigation to the final decision and highlights, in particular, that:
  1. (a)
    Mr Spannari and Ms Kelly Maddock did not remove themselves from the alleged incident nor reported the incident to management or refer the matter to the police. Both Mr Spannari and Ms Maddock also had access to their personal duress where it could have been activated;
  1. (b)
    the Appellant was not placed on suspension but was moved off the floor to the office and then returned to the floor where the Appellant continues to work;
  1. (c)
    the Appellant had questioned the credibility of both Mr Spannari and Ms Maddock throughout the whole process;
  1. (d)
    Mr Spannari had identified Mr Chris McDonald as a person Mr Spannari confided in who was not interviewed;
  1. (e)
    concerns were raised on Mr Pappos' biased views where Mr Pappos preferred the evidence of Mr Spannari and Ms Maddock;
  1. (f)
    Mr Pappos, in opining that the rules of evidence do not apply to the exercise of executive decision making raises the question as to whether Mr Pappos considered evidence as a critical part of the investigation process and whether a decision can be made without adequate evidence;
  1. (g)
    there were issues with the Investigation Report and this was not accepted by ES or Mr Pappos. The Appellant questions whether Mapien was given an opportunity to revisit the investigation. The Appellant was only given the draft copy of the Investigation Report;
  1. (h)
    during October 2020, a request was made for a printout of the staff movement reports and client observation sheets ('FOB records') for 22 December 2019, however, the request was denied;
  1. (i)
    Mr Pappos claims that Ms Maddock did not enter FDS House 1 on 22 December 2019 and had provided to the Appellant an edited version of the FOB records. The Appellant submits that the original print out of the FOB records will show that Ms Maddock did enter FDS House 1 on 22 December 2019;
  1. (j)
    a copy of the FOB records was provided for 21 December 2019 and does not show the Appellant entering the kitchen and being there with both Mr Spannari and Ms Maddock at any time. Mr Pappos had therefore, made assumptions in the letter dated 19 November 2020;
  1. (k)
    little attention has been given to the actual incident during the whole investigation. No explanation was given as to how the Appellant had managed to get a knife;
  1. (l)
    it is difficult to process how Mr Pappos made his decision when the events of 21 December 2019 do not match the situation. The whole investigation failed to ascertain whether the Appellant was in the same location as Mr Spannari and Ms Maddock at the times or date of the alleged incident of either 21 or 22 December 2019; and
  1. (m)
    Mr Pappos' statement that 'the findings of an investigation are not binding on a delegate, and the findings are not evidence that can be relied upon by the delegate. The delegate can only rely on the evidence that has informed the findings' is confusing as it is unclear as to the evidence that has been provided to inform the Mr Pappos' decision.

Respondent's submissions

  1. [21]
    The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent primarily relies on the documentary evidence attached to their submissions and further submits that:
  1. (a)
    prior to the Appellant's October 2020 request, Mr Pappos was unaware of FOB records or their potential use to track employee movements. Mr Pappos was therefore of the view that if, in challenging the allegation, the Appellant believed that there was evidence or material that needed to be reviewed then he could state this in his response and if relevant, the material would be reviewed. The Appellant's first response dated 18 August 2020 did not mention or request a review of the FOB records or client observation sheets. When this was raised by the Appellant in his second response dated 12 October 2020, Mr Pappos reviewed the FOB records and client observation sheets and provided them to the Appellant;
  1. (b)
    the FOB data provided to the Appellant was exported to Excel in order to highlight individual staff access to enable ease of reading. The original FOB text file confirms that Ms Maddock did not enter FDA House 1 during her shift on 22 December 2019;
  1. (c)
    the Appellant was not placed on suspension but rather on alternative duties in the first instance and then, on determining that any future interactions between the Appellant and Mr Spannari could be mitigated, the Appellant was returned to his normal rotating roster. The fact that the Appellant was not suspended does not suggest that his actions were not serious or that the imposed disciplinary action was not appropriate;
  1. (d)
    the Investigation Report provided to the Appellant was the final report that was provided to the Respondent by the Mapien investigator and it was the report included in all the material on which the delegate based his decisions;
  1. (e)
    the advice provided to the Appellant by Mr Pappos is supported and confirmed under clause 6.7 of Directive 17/20 – Workplace investigations ('the Directive');
  1. (f)
    the investigation/information gathering process undertaken in relation to the allegations against the Appellant were not as proficient, straightforward or streamlined as the Respondent would have liked. However, through the ES investigation report review and the natural justice process, all relevant information relating to the allegation was eventually identified and provided to Mr Pappos who comprehensively reviewed and analysed it;
  1. (g)
    Mr Pappos' decision was well considered, necessary and proportionate when balanced against the Appellant's inappropriate and deliberate conduct and the disciplinary penalty imposed was not harsh, unjust or unreasonable in the circumstances;
  1. (h)
    as an FDS Clinician, the Appellant had a responsibility to treat his colleagues with courtesy and respect and to role model appropriate behaviours to clients. Given the serious nature of the Appellant's actions, it was evident to Mr Pappos that a significant penalty was required to correct the Appellant's behaviour and ensure that he did not repeat his actions; and
  1. (i)
    the penalty taken against the Appellant does not prevent him returning to his previous PO3(4) level after two years of increments.

Appellant's submissions in reply

  1. [22]
    The Appellant, in accordance with the Directions Order, filed submissions in reply to the Respondent's submissions. In summary, the Appellant submits that:
  1. (a)
    the Respondent, in submitting that the investigation/information gathering process were not as proficient suggests that the Directive was not followed with the exception of clause 6.7;
  1. (b)
    Mr Pappos appears to have placed greater weight on the email between Ms Maddock and Mr Jamie Cairncross, Senior Advisor (Investigations) which predominately provided a list of reasons why she had differing recollections about the incident and confirmed that the incident occurred on 22 December 2019;
  1. (c)
    the investigation appears to have been conducted with bias towards both Mr Spannari and the witness;
  1. (d)
    the Appellant was not given the opportunity to provide an explanation to his 'evasive responses'. Had the Appellant been given the opportunity to provide a response, valid reasons would have been provided;
  1. (e)
    ES and Mr Pappos continue to support the notion that the Appellant had four consecutive shifts with Mr Spannari without verification and validity;
  1. (f)
    during the interview, the Appellant stated that Mr Spannari was hardly in FDS House 1 on 22 December 2019 which did not progress until the Appellant asked to review the FOB records. The Appellant submits that this shows that his statement was correct;
  1. (g)
    to investigate properly, the FOB record should have been viewed prior to a decision being made;
  1. (h)
    Mr Pappos made the decision based on the Investigation Report, which the decision maker did not concur with, and on the additional information from ES. Mr Pappos made the decision without checking the veracity of the statements made by Mr Spannari and Ms Maddock and nor did Mr Pappos apply the Briginshaw standard; and
  1. (i)
    ES and Mr Pappos failed to evaluate the evidence in accordance with the Briginshaw principle.

Consideration

  1. [23]
    Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(b).
  1. [24]
    The allegation against the Appellant was that he engaged in misconduct by pointing a knife toward Mr Spannari in a threatening and aggressive manner. This conduct was alleged to have occurred in the presence of Ms Maddock.
  1. [25]
    The Respondents acknowledged in their submissions that the information gathering process was not as 'proficient, straightforward or streamlined' as they would have liked. The Appellant submits that this concession suggests that the Directive was not followed, however, he does not particularise this submission. In the absence of any further particulars, I consider the Respondent's submission relates to the changed date of incident outlined in the show cause notice. The Respondent's difficulty in ascertaining the exact date upon which the conduct was alleged to have occurred was problematic and necessitated the amendment of the date of alleged incident from 22 December 2019 to 21 December 2019. I accept the Respondent's submission that, despite Mr Spannari confusing the date in his original complaint, the core element was substantiated on the balance of probabilities, that is, that Ms Maddock was present when Mr Spannari and the Appellant were in the kitchen when the Appellant picked up a knife and pointed it at Mr Spannari in a threatening manner.
  1. [26]
    After the Appellant requested FOB record information from the employer, it became apparent that he was not in the relevant building on the date of the alleged conduct on 22 December 2019. The Appellant's submission that the FOB record should have been viewed prior to a decision being made may have some merit, however, the Respondent states that it was unaware that the FOB records could be used for such purposes prior to this matter. The fact that the complainant reported the incident eight weeks after the date provides an adequate explanation of the lack of clarity surrounding the date. Whilst the change of date of incident may be considered a blemish on the investigation process, I am not persuaded that this caused any significant prejudice to the Appellant.
  1. [27]
    The Appellant disputes Mr Spannari's assertion that he had four consecutive shifts with the Appellant over this time, and I note that the Respondent clarified that their records show that the parties worked together on three consecutive shifts, being 21, 22 and 23 December 2019. This does not impact on Mr Pappos' findings given that the conduct was determined to have occurred on 21 December 2019, being the first of the three consecutive shifts worked together.
  1. [28]
    It was open to Mr Pappos to determine that the Appellant had provided 'evasive responses' in his decision without the Appellant being provided with an opportunity to comment on this determination. Natural justice does not require the provision of opportunities to comment on every conclusion reached by the decision maker. I note the Appellant submitted that valid reasons existed for the evasive responses, including recent personal trauma and his workload on 22 December 2019. The Appellant also noted that he had denied the allegation from the outset. 
  1. [29]
    Mr Pappos did not agree with the findings made in the Investigation Report by the investigator, Mr John Mitchell, that the allegation could not be substantiated.  Mr Pappos determined that some aspects of the investigation had not been fully explored, and after consideration of further information obtained by ES, he determined that the conduct had occurred as alleged. Natural justice was provided to the Appellant in that all additional information, along with the Investigation Report, were provided to the Appellant for consideration.
  1. [30]
    Mr Pappos' determination that he did not concur with the Mr Mitchell's assessment of the evidence was explained in the decision of 12 September 2020. Mr Mitchell determined that he could not make a 'safe finding' as to whether the incident occurred or not due to the following: Ms Maddock's changed report; his belief that there was personal conflict between Ms Maddock and the Appellant; his belief that an incident of this nature would have been reported immediately; and what he believed was inconsistencies in Ms Maddock's and Mr Spannari's description of the knife.
  1. [31]
    Mr Pappos addressed each of these explanations in the decision. It was open to Mr Pappos to conclude that Ms Maddock was unlikely to be vexatious given that she would have confirmed the incident when first interviewed if she was motivated by vindictiveness. It was also open to Mr Pappos to accept Ms Maddock's reasonable explanation as to why her recollection of the event differed between interviews.
  1. [32]
    The description of the knife by the two witnesses was not exactly the same, however, it was not so dissimilar so as to be described as inconsistent. Mr Spannari described the knife as a large red sharp cutting knife measuring approximately 25 to 30 centimetres from the handle to the tip of blade. Ms Maddock described the knife as being red and 10 centimetres long, however, clarified that the blade was the size of the short side of an A4 piece of paper which is 21 centimetres long. It was also open to Mr Pappos to not accept Mr Mitchell's view that an incident of this nature would have been reported immediately, and accept Mr Spannari's explanation that he took a while to process what had happened before ultimately deciding to report the matter.
  1. [33]
    As the decision maker, Mr Pappos was required to consider the contents of the Investigation Report along with any other relevant information. The decision maker's role is not to simply 'rubber stamp' the outcome of the investigation, but to make an independent assessment of the evidence.
  1. [34]
    The Appellant submits that Mr Pappos did not check 'the veracity of the statements made by Mr Spannari and Ms Maddock'. Mr Pappos demonstrated consideration of the statements provided by both witnesses, including any discrepancies between statements. It is unclear what other measures the Appellant believes should have been taken to check the veracity of the statements.
  1. [35]
    The Appellant submits that Mr Pappos 'failed to evaluate the evidence in accordance with the Briginshaw principle'. Dixon J outlined the principle in Briginshaw[6] in the following terms:

…it is enough that the affirmative of the allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony or indirect references…[7]

  1. [36]
    Mr Pappos stated in the decision that it was not required to consider the evidence in accordance with the Briginshaw principles. Mr Pappos' confusion may have arisen because the principles incorporated into the Directive are not specifically identified as 'Briginshaw' in name. Clause 14 of the Directive outlines the following:

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  1. (a)
    relevance of the evidence to the allegations
  1. (b)
    seriousness of the allegations
  1. (c)
    inherent likelihood or improbability of a particular thing or event occurring
  1. (d)
    gravity of the consequences flowing from a particular finding.
  1. [37]
    It was not a requirement that Mr Pappos overtly reference the Briginshaw principles in applying those principles to the decision-making process. The allegation is serious, however, the consequences of the finding, that being the proposed penalty of a reduction in remuneration level from PO3(4) to PO3(02), is at the less serious end of the scale of possible disciplinary action. The witness evidence from Mr Spannari and Ms Maddock was cogent and provided a sound evidentiary basis upon which the allegation could be substantiated. Ultimately, Mr Pappos had to be reasonably satisfied on the balance of probabilities, that the conduct occurred. When contrasting the denial of the Appellant with the evidence of Mr Spannari and Ms Maddock, it was not unreasonable to conclude that the conduct occurred as alleged.
  1. [38]
    The Appellant submits that the Respondent 'could not place him in the kitchen at the time of the alleged conduct'. However, Mr Pappos outlines in his decision that after reviewing the FOB records for 21 December 2019, he was of the view that the Appellant, Mr Spannari and Ms Maddock were all in the kitchen at around 5.43pm and that this is likely to be the time that the incident occurred.
  1. [39]
    The Appellant does not refer to any evidence to substantiate his submission that the investigation was conducted with bias towards both Mr Spannari and the witness. A determination that particular evidence was preferred is not an indicium of bias.
  1. [40]
    Mr Pappos placed significant weight on the email between Ms Maddock and Mr Cairncross from ES. This was not unreasonable, with Ms Maddock's lengthy and detailed response outlining a credible explanation as to why the account provided to the investigator differed from her account provided to ES.
  1. [41]
    The Appellant noted that Mr Spannari and Ms Maddock did not remove themselves from the alleged incident, report the incident to management, refer the matter to the police, nor were their personal duress alarms activated. This does not reflect upon the credibility of the witness' evidence, with neither witness suggesting that the circumstances were such that they feared for their safety. Mr Spannari provided a reasonable explanation as to why he delayed reporting the incident, noting that 'he was not a vindictive person' and that he did not want to take the matter to the police. After ruminating over the incident, Mr Spannari stated that he decided to report it because he felt that he should not have to experience a knife being held at his direction by one of his colleagues. It was open to Mr Pappos to accept this explanation.
  1. [42]
    The Respondent's decision not to suspend the Appellant but rather place him on alternative duties and then on a rotating roster does not indicate that the alleged conduct was not serious. The Respondent reasonably determined that any future interactions between the Appellant and Mr Spannari could be mitigated prior to returning him to the normal roster.
  1. [43]
    After determining that the allegation had been substantiated, Mr Pappos considered that the Appellant had contravened s 187(1)(b) of the PS Act in that the Appellant is guilty of misconduct. Section 187(4)(a) provides that misconduct is inappropriate or improper conduct in an official capacity.
  1. [44]
    Deputy President Merrell characterised 'misconduct' in Coleman v State of Queensland (Department of Education),[8] as contemplating a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[9] It was reasonable to conclude that the act of threatening a colleague with a knife in the workplace constitutes a deliberate departure from accepted standards. Mr Pappos' determination that the Appellant's conduct constituted misconduct was fair and reasonable.
  1. [45]
    In determining the appropriate penalty, Mr Pappos demonstrated consideration of the Appellant's submission with respect to the financial impact of the penalty on his ability to support his two adult children. Mr Pappos determined that the financial consequences did not outweigh the seriousness of the conduct and the Appellant's disregard of his colleague and the safety and security of the workplace. In consideration of the range of disciplinary penalties open to Mr Pappos, I consider the reduction of remuneration of two pay points to be reasonable in the circumstances.
  1. [46]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[10] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[11]

  1. [47]
    Applying the principles outlined above, I do not consider that the decision to substantiate the allegation lacks justification in the circumstances. The conduct substantiated could reasonably be considered misconduct pursuant to s 187(1)(b) of the PS Act and consequently, a disciplinary penalty could be imposed pursuant to s 188. The penalty of a reduction in remuneration from PO3(4) to PO3(02) is proportionate to the substantiated conduct. I note that this penalty does not prevent the Appellant from returning to his previous PO3(4) level after two years of increments.
  2. [48]
    Based on the information before me, I am satisfied that the decision to substantiate the allegation and impose a disciplinary penalty of a reduction in remuneration was fair and reasonable in the circumstances.

Order

  1. [49]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] The further information was provided in the form of an email.

[6] Briginshaw v Briginshaw (1938) 60 CLR 336.

[7] Ibid 363.

[8] [2020] QIRC 032.

[9] Ibid [62]. 

[10] [2019] QSC 170.

[11] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Connors v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2021] QIRC 359

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 Oct 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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