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  4. O'Neill v State of Queensland (Queensland Ambulance Service) - [2021] QIRC 370

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O'Neill v State of Queensland (Queensland Ambulance Service)[2021] QIRC 370

O'Neill v State of Queensland (Queensland Ambulance Service)[2021] QIRC 370

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

O'Neill v State of Queensland (Queensland Ambulance Service) [2021] QIRC 370

PARTIES: 

O'Neill, Daniel

(Appellant)

v

State of Queensland (Queensland Ambulance Service)

(Respondent)

CASE NO.:

PSA/2021/73

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

3 November 2021

MEMBER:

HEARD AT:

Power IC

On the papers

OUTCOME:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – where first disciplinary finding was held to not be fair and reasonable – first disciplinary finding set aside and recommenced – allegation one substantiated – allegation two not capable of substantiation – appellant appeals the second disciplinary finding – disciplinary finding was fair and reasonable

LEGISLATION:

Ambulance Service Act 1991 (Qld), ss 18A and 18B

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

Public Service Act 2008 (Qld), s 26 and ch 7

Public Service Regulation 2018 (Qld), s 3 and sch 6

CASES:

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

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)

Kuenstner v Workers' Compensation Regulator [2016] QIRC 83

Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301

Reasons for Decision

Introduction

  1. [1]
    Mr Daniel O'Neill ('the Appellant') has been employed as a Clinical Support Officer in the Clinical Education Unit – Central Queensland Local Area Service Network ('LASN') with the State of Queensland (Queensland Ambulance Service) ('the Respondent'; 'QAS').
  1. [2]
    A disciplinary finding against the Appellant was previously made by another delegate on the basis of the same allegations that are the subject of this appeal. A public service appeal was subsequently filed against the first disciplinary finding. In determining that public service appeal ('the Appeal decision'), Deputy President Merrell directed that the decision be set aside and that the show cause notice be re-issued by a different delegate and the disciplinary process recommenced. The Appellant now appeals the second disciplinary finding decision ('the decision').

Appeal principles

  1. [3]
    By appeal notice filed on 17 February 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'),[1] appealed against the decision made by the new delegate, Mr Ray Clarke ('Mr Clarke'; 'the decision maker'), Executive Director Workforce, Corporate and Statewide Services, QAS, dated 5 February 2021.
  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.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[4] 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.[5] The issue for determination is whether the decision of the decision maker's disciplinary finding was fair and reasonable in all of the circumstances. 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]
    As noted above, Deputy President Merrell held that the first disciplinary finding was not fair and reasonable, with the Respondent directed to recommence the disciplinary finding process by a new delegate.
  1. [9]
    A different delegate was appointed and on 10 December 2020, the new delegate issued a notice to show cause ('NTSC') with respect to two allegations:

…

Allegation one

It is alleged that on or about 6 February 2020, Officer O'Neill engaged in inappropriate conduct by making two inappropriate statements whilst facilitating a Tier 1 training course at Gladstone Ambulance Station.

…

Allegation two

It is alleged that on or about 5 May 2020, Officer O'Neill engaged in inappropriate conduct by victimising a colleague and isolating that person from a group of colleagues with a connection to the workplace following the receipt of a notice to show cause arising from a complaint lodged by Officer Brown.

…

  1. [10]
    The decision maker found that allegation two was not capable of being substantiated and provided the Appellant 14 days from the receipt of the NTSC to provide a response with respect to allegation one.
  1. [11]
    On 23 December 2020, the Appellant provided a response to the NTSC and on 5 February 2021, the Appellant was issued with the decision whereby the decision maker determined that allegation one was substantiated. The decision maker determined that the Appellant had failed to comply with s 26(1)(m) of the PS Act and standard 1.5 of the Code of Conduct for the Queensland Public Service ('the Code of Conduct') and proposed a disciplinary penalty of reduction in classification level and consequential change of duties, along with a reprimand.

Grounds of appeal

  1. [12]
    In the appeal notice, the Appellant outlined the following grounds of appeal. In summary, the Appellant contends that the Respondent:
  1. (a)
    failed to follow the directions of Deputy President Merrell dated 10 December 2020;
  1. (b)
    failed to recommence the disciplinary finding process;
  1. (c)
    failed to protect the second disciplinary finding process from perceived or actual bias by conflating the first disciplinary process with the second disciplinary process, robbing it of any natural justice or procedural fairness;
  1. (d)
    failed to advise the Appellant that the decision maker intended to rely on material forming part of the first unfair and unreasonable disciplinary finding process;
  1. (e)
    improperly took into account material which formed part of the first unfair and unreasonable disciplinary finding process; and
  1. (f)
    failed to comply with the QAS Employee Complaints Management – Human Resource Procedure as the complaint was not put in writing.
  1. [13]
    The Appellant submits that, with respect to allegation one, the decision maker made pre-determined findings and/or determinations, which are not based on evidence and that the decision maker:
  1. (a)
    erred in finding the Appellant's recollection of the conversation in the training session on 6 February 2020 was unrealistic and not to be preferred in favour of the account provided by the complainant and witnesses; and
  1. (b)
    denied the Appellant procedural fairness by failing to put the information obtained from the enquiries made regarding the Appellant's previous complaint against the complainant for the Appellant's response, prior to making his decision, which was previously found by Deputy President Merrell.
  1. [14]
    The Appellant submits with respect to allegation two, that the decision maker:
  1. (a)
    improperly included the allegation as part of the NTSC in circumstances where the delegate had already determined allegation two was not a ground for disciplinary action; and
  1. (b)
    improperly took into account materials related to allegation two, which was not a ground for disciplinary action and found to not be capable of being substantiated.
  1. [15]
    The Appellant further submits that despite allegation two not being a ground for disciplinary action and not capable of being substantiated, was nevertheless issued with a warning and/or reprimand in relation to allegation two.
  1. [16]
    The Appellant submits that, in forming a view as to whether or not a disciplinary ground is capable of being substantiated and the proposed disciplinary action to be taken, the decision maker does not give reasons, take into account or give weight to the fact that the Appellant:
  1. (a)
    did not engage in other unwelcome conduct of a sexual nature in relation to another person; and
  1. (b)
    did not engage in conduct in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated, or intimidated by the conduct.
  1. [17]
    The Appellant submits that the proposed disciplinary action, being a 'serious disciplinary action' under the PS Act, is disproportionate to the alleged offences, having regard to the mitigating circumstances and the lack of parity as to how his previous complaint against the complainant was treated and managed as an informal complaint, which the decision maker dismisses in his finding as having been addressed at the time.

Submissions

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

Respondent's submissions

  1. [19]
    The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's submissions. In summary, the Respondent submits that:
  1. (a)
    the matter was determined on the available evidence and admissions, and not inferences unreasonably drawn;
  1. (b)
    the decision maker reviewed the decision and directions of Deputy President Merrell and examined all materials relevant to the matter;
  1. (c)
    the decision maker's actions were consistent with the principles of natural justice as the Appellant was provided with the opportunity to rely on his previous statements or to submit new statements regarding allegation one;
  1. (d)
    the Appellant fails to recognise that it was the material which formed part of the 'first unfair and unreasonable disciplinary process' that prompted the decision maker to dismiss allegation two;
  1. (e)
    written advice was provided at every stage of the investigation and disciplinary process;
  1. (f)
    the Appellant's claim that the decision maker made predetermined findings is unsubstantiated and conjecture as the investigation report and associated materials were considered in coming to the disciplinary finding. Additionally, the decision maker explains the decision in the correspondence to the Appellant and further dismisses allegation two following examination of all materials;
  1. (g)
    the investigation report summarises all interviews undertaken and provides quotes from the complainant, the Appellant and each witness to the events of 6 February 2020. Given that the evidence provided is largely consistent in relation to the comments made by the Appellant, and that the Appellant has agreed that comments were made in the context of what has been alleged, it is entirely consistent for the decision maker to substantiate allegation two;
  1. (h)
    the Appellant's submission that the complainant was a 'willing and equal participant' in the conversation is not supported by the independent recall of any witness and is inconsistent with the immediate and obvious displeasure of the complainant;
  1. (i)
    the Appellant is misguided regarding allegation two as the decision maker found that it was not capable of substantiation and that there is no reason for the Appellant to raise the decision maker's inclusion of his reasoning relevant to allegation two as a ground of appeal. The decision maker felt obliged to include in the decision the determination regarding allegation two given it was discussed in the first disciplinary process and Deputy President Merrell's decision; and
  1. (j)
    it is reasonable and appropriate given the circumstances to remind the Appellant that his private capacity conduct may at times be viewed as being connected to his employment. The reminder is not a reprimand or a warning.

Appellant's submissions in reply

  1. [20]
    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 investigation was not conducted in accordance with the QAS Employee Complaints Management – Human Resource Procedure:

a.  The complainant did not lodge the complaint in writing, as required under Clause 3.5.2 (Stage 1 – Local Action) and Clause 3.6.3 (Stage 2 – Internal Review), but rather made a verbal complaint to the Officer-in-Charge of Gladstone Ambulance Station, which was file noted.

b.  It is unclear on the evidence available whether the complainant lodged her complaint as a grievance under an industrial instrument, and as such it is submitted that the complaint was supposed to be managed under the QAS Employee Complaints Management HR Procedure as per Clause 3.1.5.

c.  It is apparent that the complaint was not given an opportunity to be resolved locally and informally (and quickly) through Stage 1 of the Procedure, as required under Clause 3.1.7 and Clause 3.5.1, in stark contrast to the Appellant's complaint against the Complainant regarding her inappropriate touching of the Appellant, which the Respondent confirms in its 5 February 2021 letter "was dealt with at the time" as the Appellant "did not make a formal complaint".

d.  The differential treatment of the Appellant's complaint is a strong inference that bias still existed towards the Appellant.

e.  The Appellant notes that Clause 3.5.11 of the policy allows for complaint allegations of sexual and/or workplace harassment to be escalated to the authorised delegate responsible for Stage 2 resolution where appropriate, however these instances should be assessed on a case by case basis. The Appellant submits that:

i.  The Respondent has not provided any information on its assessment to escalate the complainant's complaint and why it warranted a workplace investigation under Clause 3.2 of the QAS HR Procedure on Workplace Investigations, particularly because workplace investigations are considered "a last resort option";

ii.  In any event, the Respondent ultimately did not make a finding that the Appellant engaged in sexual harassment as defined in Clause 3.3.1 of the QAS HR Procedure – Workplace Bullying, Sexual Harassment and Unlawful Discrimination, and the Appellant thereby submits that the complaint could have been quickly and effectively resolved at Stage 1 had the proper channels been followed.

  1. (b)
    the Respondent denied the Appellant procedural fairness by failing to put the information obtained from his enquiries regarding the Appellant's previous complaint against the complainant to the Appellant for his response, prior to making the decision of 5 February 2021.
  1. [21]
    The Appellant relies on the reasons as outlined in the appeal notice with respect to allegation one and further submits the following:

a.  the Respondent has not given sufficient weight to the context of the comments made by the Appellant in that he was sharing information on possible distraction / self-defence techniques as part of organic and fast-moving discussions / questions asked by the Officers in attendance at the training session, particularly by Officer Waiaro after she raised a suggestion to "kick [attackers] in the balls" due to her small stature;

b.  the Respondent has not provided any information that it put the Appellant's version of events given in his response of 24 December 2020 to the other witnesses for their further response;

c.  the Respondent did not give sufficient weight to this context as it dismissed the Applicant's recollection of the conversation as 'being unrealistic' without full and genuine consideration, notwithstanding the evidence given by Officer John Hodson-Gilmore in his interview of 19 March 2020 that the training session group were engaged in banter regarding Officer Waiaro's stature at the time of the comments;

d.  The Respondent made a pre-determined finding that the comments caused "distress" among one or more of the participants, when the evidence given by the Appellant was that he observed displeasure. Once the Appellant observed that this information was not being well-received, the Appellant quickly moved the conversation on to other techniques.

  1. [22]
    The Appellant submits that the Respondent has not made findings that the Appellant engaged in sexual harassment as defined in clause 3.3.1 of the QAS Human Resources Procedure – Workplace Bullying, Sexual Harassment and Unlawful Discrimination ('the Procedure').
  1. [23]
    Although the Appellant accepts that the Respondent has not substantiated allegation two, the Appellant maintains that the Respondent has not complied with the direction of Deputy President Merrell with respect to this allegation. The Appellant submits that the Respondent in stating that 'a rational external observer could form the view that the Appellant's receipt of a notice to show cause and the Appellant's expulsion of the complaining employee from a lotto syndicate a few hours later have a clear connection' goes beyond a mere reminder.
  1. [24]
    The Appellant submits that it would be unfair and unreasonable for the Respondent to propose disciplinary action which mirrors the disciplinary action proposed under the first, flawed disciplinary process. The Appellant submits that this proposal tends towards a conclusion that the Respondent have made predetermined findings with respect to the penalties to impose, regardless of any responses provided in the recommenced process.
  1. [25]
    The Appellant submits that the Respondent has not provided specific submissions regarding the proposed disciplinary action outlined in the decision. The Appellant further submits that:
  1. (a)
    the proposed disciplinary action appears to be a combination of the proposed disciplinary action outlined in the first disciplinary outcome letter of 3 July 2020, where both allegations one and two were substantiated;
  1. (b)
    the Respondent has failed to consider the alternative, intermediary options outlined in s 18B of the Ambulance Service Act 1991 (Qld) ('the AS Act'); and
  1. (c)
    the proposed disciplinary action is disproportionate to the alleged offences, having regard to the Appellant's personal circumstances and lack of parity between the Respondent's treatment and management of the Appellant's previous complaint against the complainant and the complainant's complaint against the Appellant.

Consideration

  1. [26]
    Consideration of an appeal of this kind requires a review of the disciplinary finding decision to determine if the decision was fair and reasonable in the circumstances.
  1. [27]
    The decision appealed against relates to the disciplinary finding that allegation one had been substantiated. The disciplinary action proposed is not a 'decision' and the show cause process is yet to run its course to a final determination regarding any disciplinary penalty to be imposed. As outlined in the NTSC, the Appellant has an opportunity to respond to the proposed disciplinary action and show cause as to why the proposed penalty should not be imposed. The Respondent is then required to consider any response in reaching its decision regarding disciplinary action. Any decision on disciplinary action is appealable under the PS Act, with the proposed disciplinary action outlined in the NTSC not a matter to be considered in this appeal.
  1. [28]
    The Appellant appealed the original disciplinary finding to the Commission, with Deputy President Merrell determining that the decision was not fair and reasonable. In his Appeal decision, Deputy President Merrell identified a number of deficiencies which can be summarised as follows:
  1. (a)
    inadequate reasons provided concerning the finding of facts;
  1. (b)
    inadequate explanation as to how the conclusion was reached that the Appellant did not comply with clause 1.5 of the Code of Conduct and clause 3.3.1 of the Procedure;
  1. (c)
    inadequate reasons as to why the substantiated allegations were considered misconduct within the meaning of s 18A(1) of the AS Act; and
  1. (d)
    denial of procedural fairness relating to inquiries regarding the previous complaint against Officer Brown.
  1. [29]
    In accordance with the Appeal decision, the Respondent reissued a corrected show cause notice and the disciplinary finding process was recommenced by a new delegate, Mr Clarke.
  1. [30]
    In his decision, Mr Clarke referred to material obtained as part of the investigation process. The Respondent submits that this was consistent with his obligation to review all relevant material. The Appeal decision did not direct the Respondent to recommence the investigation process. The investigation report and interviews were not impugned and there was no suggestion that the process had been affected by bias. Deputy President Merrell considered that inadequate reasons had been provided regarding a number of findings and that the Appellant should have been afforded an opportunity to respond to inquiries regarding Officer Brown. These findings broadly concern the deficient manner in which the original decision maker, Mr Coombs, demonstrated consideration of the evidence with respect to breaches of the Code of Conduct, the Procedure and the AS Act in making his decision, and not the process by which the evidence was obtained. Consequently, it was reasonable for the decision maker to consider all of the material along with any further material provided. The Appellant has not identified any prejudice suffered as a consequence of the relevant material being considered by Mr Clarke in making the disciplinary finding.
  1. [31]
    The Appellant submits that the Respondent erred by failing to put information to the Appellant for his response relating to enquiries made regarding the complaint against Officer Brown, as found in the Appeal decision. This appeal finding related specifically to the original decision made by Mr Coombs. The only reference to a previous complaint regarding Officer Brown in the decision by Mr Clarke is as follows:

Further to your comments regarding Officer Seeona Brown and your allegation that she does not like you and has engaged in a personal vendetta and retaliation against you, I am aware of the previous complaint from you to OIC Spencer and understand this was dealt with at the time to the satisfaction of all parties. 

  1. [32]
    Mr Clarke does not indicate that he has made any further enquiries regarding the previous incident involving Officer Brown, nor that he was privy to the information obtained by Mr Coombs regarding this matter. Given that no weight appears to have been given to matters relating to the Appellant's previous complaint, and Mr Clarke was not aware of the information obtained by the previous decision maker, no further information regarding this matter could have been put to the Appellant for his response.
  1. [33]
    The Appellant submits that the inclusion of allegation two in the NTSC was improper as the delegate had already determined that it was not a ground for disciplinary action. There was nothing improper about informing the Appellant that an allegation that had been the subject of a show cause process and subsequent Appeal had been reconsidered and determined to not be substantiated. The Appellant was entitled to know the outcome of the original allegation and the inclusion of the determination in the NTSC was not unreasonable. 
  1. [34]
    The Appellant submits that the Respondent's statement that 'a rational external observer could form the view that the Appellant's receipt of a notice to show cause and the Appellant's expulsion of the complaining employee from a lotto syndicate a few hours later have a clear connection' goes beyond a mere reminder and is contrary to Deputy President Merrell's decision with respect to allegation two. The Appellant does not detail how this statement goes beyond a reminder and any reasonable assessment would conclude that the statement is not a warning or reprimand. The full context of the paragraph makes it clear that the purpose was to remind the Appellant that conduct undertaken in his private capacity may be viewed as connected to his employment regardless of his intention. The decision maker clearly stated that allegation two was 'not capable of substantiation' and there is no evidence that materials related to allegation two were taken into account in the decision. 
  1. [35]
    The Appellant submits that the decision maker erred in finding the Appellant's recollection of the conversation to be unrealistic and the account provided by the complainant and witnesses was to be preferred. Mr Clarke gave adequate reasons as to why he made this determination, including that the evidence of all three witnesses generally confirmed the complainant's version of events, that the witnesses had felt surprised by the Appellant's comments and that on the Appellant's own evidence, the Appellant noticed 'some displeasure by one of the course participants' following the Appellant's comments. It was open to Mr Clarke to consider that he preferred the account provided by the complainant and witnesses over that of the Appellant.
  1. [36]
    The Appellant submits that the investigation was not conducted in accordance with the QAS Employee Complaints Management – Human Resource Procedure. As noted by the Appellant, it is unclear whether the complainant lodged her complaint as a grievance under an industrial instrument or as a complaint. If it were lodged as a grievance under an industrial instrument, it was not required to be in writing. Regardless, this is a peripheral issue and not central to the matter to be determined.   
  1. [37]
    The Appellant compares the process through which an earlier complaint he made against the complainant was managed and the process adopted in this matter. The manner in which the Appellant's complaint was managed is a separate and distinct consideration to that of this appeal. I have no evidence before me as to the details of the Appellant's complaint, and any such evidence is unlikely to be relevant to the consideration of whether the decision maker's disciplinary finding in this matter was fair and reasonable. If the Appellant was of the view that the process or outcome associated with his earlier complaint was unsatisfactory, he was able to utilise the appropriate review and appeal processes.
  1. [38]
    The Appellant submits that clause 3.5.11 of the QAS Employee Complaints Management – Human Resource Procedure allows for complaint allegations of sexual and/or workplace harassment to be escalated to the authorised delegate responsible for Stage 2 resolution where appropriate. The Appellant submits that the Respondent has not provided any information on its assessment to escalate the complainant's complaint and why it warranted a workplace investigation under clause 3.2 of the QAS Workplace Investigations – Human Resource Procedure, particularly because workplace investigations are considered 'a last resort option'. Clause 3.5.11 of the QAS Employee Complaints Management – Human Resource Procedure authorises the Respondent to escalate a complaint and conduct an investigation on a 'cases by case basis', and there is no requirement that the Appellant be provided with any assessment of this process. I note that clause 3.5.5 of the QAS Employee Complaints Management – Human Resource Procedure provides that an authorised delegate may conduct a further review or investigation in order to resolve the complaint.
  1. [39]
    The Appellant submits that, in any event, the Respondent did not ultimately make a finding that the Appellant engaged in sexual harassment and therefore the complaint could have been quickly and effectively resolved at Stage 1 had the proper channels been followed. I do not accept this submission. A process of investigation is not rendered unreasonable simply because the allegation is ultimately not held to be a breach in the nature alleged. It was open to the Respondent to determine that the complaint warranted a workplace investigation.
  1. [40]
    The Appellant's grounds of appeal contend that Mr Clarke did not give reasons explaining why he had determined that the Appellant had not engaged in unwelcome conduct of a sexual nature or in circumstances where a reasonable person would have anticipated the possibility that the other person would be offended, humiliated or intimidated by the conduct. Mr Clarke was required to provide adequate reasons as to why the substantiated allegation contravened clause 1.5 of the Code of Conduct and s 26 of the PS Act, however, an explanation as to why the conduct did not breach other instruments such as the Procedure is not strictly necessary. For the sake of completion, it may have been useful for the Appellant to understand why his conduct did not breach these standards, however, the omission of this explanation is, at its highest, a mere blemish on the process.[6]
  1. [41]
    The Appellant submits that the Respondent has not demonstrated that the Appellant's version of events was put to other witnesses for their further response. The Appellant has not outlined the basis upon which he believes the Respondent was required to do this. A fair and reasonable process involved an investigation through which witnesses were asked to provide their recollection of the incident. The decision maker was then required to assess the evidence and determine, on the balance of probabilities, whether the allegation was substantiated. I am satisfied that this process was undertaken in a manner that was fair and reasonable.
  1. [42]
    The Appellant notes that the Respondent's finding that the comments caused 'distress' amongst one or more of the participants was at odds with his evidence that he observed 'displeasure'. The difference in terms is minor and could not reasonably be accepted as being of consequence in terms of the disciplinary finding. The Appellant's own evidence that he quickly moved the conversation on when he observed that his comments were 'not being well-received' after noticing an employee's displeasure is not inconsistent with a finding that the comments caused distress.
  1. [43]
    The decision outlined the evidence considered by Mr Clarke and the reasons he determined that allegation one had been substantiated. I note that a decision maker does not have to refer to every matter which has been raised. It is sufficient that the findings and reasons deal with the substantial issues upon which the decision turned.[7] The decision outlined that the Appellant has failed to comply with s 26 of the PS Act, clause 1.5 of the Code of Conduct and the requirements of his role. Mr Clarke provides an explanation of how the Appellant had failed to meet the requirements of Clinical Support Officer to 'model and influence' an appropriate culture by engaging in a conversation with subordinate employees where the content was viewed as inappropriate. I am satisfied that it was reasonable for Mr Clarke to determine that the information provided to him with respect to the substantiated allegation provided grounds for discipline pursuant to s 18A of the AS Act.  
  1. [44]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[8] 

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

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

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[9]

  1. [45]
    Applying the principles outlined above, I do not consider that the decision to substantiate allegation one lacks justification in the circumstances. The decision is, in my view, fair and reasonable.
  1. [46]
    Based on the information before me, I am satisfied that the decision to substantiate allegation one is fair and reasonable in the circumstances.

Order

  1. [47]
    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] Chapter 7 of the PS Act applies to the Appellant and QAS by virtue of s 3(1) and sch 6(3) of the Public Service Regulation 2018 (Qld).

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

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

[4] 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.

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

[6] Kuenstner v Workers' Compensation Regulator [2016] QIRC 83.

[7]Our Town FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301.

[8] [2019] QSC 170.

[9] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    O'Neill v State of Queensland (Queensland Ambulance Service)

  • Shortened Case Name:

    O'Neill v State of Queensland (Queensland Ambulance Service)

  • MNC:

    [2021] QIRC 370

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    03 Nov 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
FM Pty Ltd v Australian Broadcasting Tribunal [1987] FCA 301
2 citations
Jump To
Cite 1 - [1987] FCA 301
Cite 2 - [1987] FCA 301
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
Kuenstner v Workers' Compensation Regulator [2016] QIRC 83
2 citations
Jump To
Cite 1 - [2016] QIRC 83
Cite 2 - [2016] QIRC 83

Cases Citing

Case NameFull CitationFrequency
Loveridge v State of Queensland (Queensland Ambulance Service) (No. 2) [2023] QIRC 2072 citations
O'Neill v State of Queensland (Queensland Ambulance Service) [2022] QIRC 2411 citation
1

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