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Jelacic v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 384

Jelacic v State of Queensland (Queensland Fire and Emergency Services)[2021] QIRC 384

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jelacic  v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 384

PARTIES: 

Jelacic, Sasha

(Appellant)

v

State of Queensland (Queensland Fire and Emergency Services)

(Respondent)

CASE NO:

PSA/2021/224

PROCEEDING:

Public Service Appeal – disciplinary decision

DELIVERED ON:

9 November 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) that the decisions the subject of this appeal (PSA/2021/224), being the decision substantiating the allegations issued on 22 April 2021 and the decision imposing a disciplinary penalty on 26 May 2021, be set aside.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld) that the stay of the disciplinary decision appealed against made on 17 June 2021 be revoked.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appellant employed as a first-class firefighter – allegations of refusal to follow a workplace direction made against the appellant – findings made by decision maker – disciplinary treatment imposed by decision maker under s 187 of the Public Service Act 2008 (Qld) – appeal against the finding and disciplinary decision – where decision making process was seriously deficient – where both finding and disciplinary decision was not fair and reasonable

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld), s 562B(2), s 562B(3),  s 562C, s 566

Public Service Act 2008 (Qld) s 187, s 188, s 194

Directive 14/20: Discipline, cl 8

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

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 Sasha Jelacic ("Mr Jelacic") is employed by the State of Queensland (Queensland Fire and Emergency Services) ("QFES") as a First-Class Firefighter stationed at Wishart Fire Station.  Mr Jelacic appeals a disciplinary finding and disciplinary decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) ("PS Act").
  1. [2]
    Mr Jelacic commenced employment with the QFES as a recruit in February 2005.
  1. [3]
    On 3 April 2021, the QFES put five allegations associated with Mr Jelacic's alleged failure to comply with a workplace directive to wear a facemask to Mr Jelacic for his response.
  1. [4]
    Following receipt of a response from Mr Jelacic, the QFES determined that the five allegations were substantiated in a decision dated 22 April 2021 ("the finding decision").  Mr Jelacic was placed on notice that the decision maker was considering implementing disciplinary action in the form of a reprimand and was invited to respond.  No response on the proposed disciplinary action was provided by Mr Jelacic. 
  1. [5]
    By letter dated 26 May 2021, QFES determined to take the disciplinary action of a reprimand ("the disciplinary decision").
  1. [6]
    On 17 June 2021, Mr Jelacic appealed both the finding decision and the disciplinary decision pursuant to s 194(1)(b)(i) of the PS Act.  Mr Jelacic provided the following grounds of appeal:
  1. (a)
    at no time was I aware or made aware the QFES and the Chief Health Officers' Face Mask requirements / directive were different.
  1. (b)
    I complied with the Chief Health Officers Direction at all times.
  1. (c)
    I complied with the Chief Health Officers Video confirmation, Qld Health website, Covid Hotline staff and Qld Health staffs advised regarding providing my employer with a lawful exemption.
  1. (d)
    QFES emails from the 29/3/2021 onward specifically reference "further information regarding the use of face masks can be located via the Qld Health Website". Link provided. At no time did I act outside all, and the only advice available, shared with me by my employer, Qld Health & the CHO.
  1. (e)
    QFES emails during refer to the QFES PPL Guidance or requirements, Chief Health Officers Directives and the Qld Health Directives/advice often in the same email, and often differing in relation to mask use.
  1. (f)
    The disciplinary allegations are not correct, nor are the disciplinary findings. The evidence gathering process appears not to exist, as required, which would have had a substantial effect on the disciplinary findings.
  1. (g)
    Qld Human Rights Act is required to be considered as part of the Disciplinary process. My response to these allegations informed my employer of unlawful discrimination and human rights infringements suffered by myself and my daughters in the days preceding the allegations, which are the cause of this disciplinary finding.
  1. (h)
    I made a phone call from work, before starting shift, to senior management informing them in good faith, of my exemption, and an email would be following. I explained it would be uncomfortable and difficult for all parties and clarified I would comply with whatever decision was taken by senior management. I was advised to take certain precautions on shift, and Senior management would be making a decision. I informed my work colleagues and Station Officers. I do not believe it is fair or reasonable to knowingly leave me on shift , make no contact with myself or the Station Officer for over 5 hours, then send me home near the end of the day and proceed with disciplinary allegations, nearly all of which allegedly occurred during that time.
  1. [7]
    On 17 June 2021, this Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ("IR Act").
  1. [8]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [9]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[1]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.  Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [10]
    I must decide the appeal by reviewing the decision appealed against.  The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [11]
    For the reasons contained herein, I have found that the decision was not fair and reasonable.

The show cause process

  1. [12]
    On 3 April 2021, the QFES put the following five allegations to Mr Jelacic regarding his alleged conduct on 1 April 2021:

Allegation No. 1

  1. refused to follow a workplace direction to wear a mask in accordance with the authorised Chief Health Officer (CHO) issued COVID-19 pandemic restrictions. These restrictions were widely distributed to staff by the Commissioner on Monday 29 March 2021, and were followed by email correspondence to all Brisbane Region staff including yourself, on the afternoon of Monday, 29 March 2021, from the Acting Assistant Commissioner, Brisbane Region to provide clarity on the requirement to wear masks under the Queensland Fire and Emergency Services (QFES) Pandemic Preparedness Level 4 (PPL4) as a result of the three-day lockdown.

Allegation No. 2

  1. refused to follow a workplace directions to wear a mask when asked to do so by your Officer-in-Charge (OIC) on the morning of Thursday, 1 April 2021 while you were on duty at Wishart Fire and Rescue Station.

Allegation No. 3

  1. failed to wear a mask when you responded to a road traffic crash at MacGregor (Incident Number QF5S-21-031234) on Thursday, 1 April 2021, where you were questions by the Acting Superintendent in attendance about why you were not wearing a mask. This failure to wear a mask was in contravention of the CHO's direction and the Commissioner's direction.

Allegation No.4

  1. failed to comply with a lawful direction when told by the Acting Superintendent that you were required to wear a mask during a personal interview on the afternoon of Thursday, 1 April 2021 at Wishart Fire and Rescue Station. The lawful direction was clarified by the attending Acting Chief Superintendent in your presence and also in the presence of your union representative/support person.

Allegation No.5

  1. when asked which of the 22 specific Queensland Health - published mask wearing exemptions listed in Part 3 of the Public Health Direction Restrictions for Queensland Direction (No. 2) may apply to you so as to validate your refusal to wear a mask, that you repeatedly informed your various supervisors that you refuse to provide this information or answer their questions.
  1. [13]
    Further, on 3 April 2021, the decision maker suspended Mr Jelacic from duties on normal remuneration in accordance with s 137(1) of the PS Act and ss 32 and 33 of the Fire and Emergency Services Act 1990 (Qld).  The decision maker advised Mr Jelacic that the suspension from duties was on the basis that Mr Jelacic's refusal to wear a facemask posed untenable work health and safety risks to co-workers and customers in close proximity, and that no other alternative duties were possible at this time.
  1. [14]
    On 19 April 2021, Mr Jelacic responded to the five allegations in written correspondence.
  1. [15]
    On 22 April 2021, the decision maker advised Mr Jelacic that the allegations against him were substantiated (the finding decision).  The finding decision relevantly determined that:

On the basis of the substantiated finding in relation to these allegations, I have determined that you have contravened section 187(1)(d) of the PS Act. In particular:

  • that by having knowledge of the CHO direction on 29 March 2021, refusing your OIC's direction on the morning of 1 April 2021, attending the Macgregor incident on 1 April 2021, without providing any explanation to the Acting Superintendent when questioned about lack of face mask while in close proximity of other responders, failing to wear mask as directed or provide a good faith response to Acting Superintendent or Chief Superintendent in the presence of your union representative on the afternoon of 1 April 2021, and thereafter by refusing to respond or advise when asked which of the 22 CHO mask wearing exclusions may apply to you, that you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.
  1. [16]
    The decision maker also put Mr Jelacic on notice that the QFES was considering imposing disciplinary action against him in the form of a reprimand and advised Mr Jelacic it would consider his responses in its final decision.
  1. [17]
    Mr Jelacic did not provide further submissions in response to the proposed disciplinary action.
  1. [18]
    On 26 May 2021, the decision maker imposed a disciplinary penalty pursuant to s 188(1) of the PS Act on Mr Jelacic of a reprimand.

Relevant legislation and Directive

  1. [19]
    Section 187 of the PS Act provides for the grounds for discipline as follows:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  6. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1)
  1. (a)
    a public service employee under section 187A; or
  2. (b)
    a former public service employee under section 188A .
  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

relevant standard of conduct, for a public service employee, means—

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  2. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

  1. [20]
    Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:

188  Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

 Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  2. (3)
    However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  3. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  2. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the guaranteed minimum wage for each

week of the period; or

  1. (ii)
    otherwise—two-thirds of the guaranteed minimum wage for each week of the
    period.
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  2. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. [21]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken

in disciplining the person; or

  1. [22]
    Directive 14/20: Discipline ("Discipline Directive") came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
  1. [23]
    Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. [24]
    Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

  1. [25]
    Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  2. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  3. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  4. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  5. (v)
    the employee’s explanation (if any)
  6. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  7. (vii)
    the impact on the employee’s ability to perform the duties of their position
  8. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  9. (ix)
    the impact a financial penalty may have on the employee
  10. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  11. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Were the decisions fair and reasonable?

  1. [26]
    I will now consider whether the allegations were capable of substantiation and if the disciplinary action imposed on Mr Jelacic was proportionate to the substantiated conduct, to determine whether the decisions were fair and reasonable.
  1. [27]
    At the outset I note, as acknowledged by the QFES,[4] that there are several factual matters in dispute in this appeal.  These include Mr Jelacic's denial of certain factual matters, including, for instance, that Mr Jelacic asserts he was not directed to wear a facemask at any time during his shift on 1 April 2021 and, further, that the alleged "lawful" reason for not wearing a facemask was accepted by the Acting Superintendent. 
  1. [28]
    It is assumed that in substantiating the allegations, the decision maker did not accept Mr Jelacic's evidence in that regard and preferred the evidence of others.  The difficulty that is faced in this appeal, which as noted above takes the form of a review, is that I am unable to determine, on the face of the reasons, as to what evidence was before the decision maker and subsequently accepted by him in making the finding decision.
  1. [29]
    As noted above, cl 8.3(b)(i) - (iii) of the Discipline Directive requires not only that the allegations be put to Mr Jelacic, but also, the particulars of the facts relied on in support of the allegations.  The allegations as contained in the correspondence dated 3 April 2021 were absent particulars of the type necessary to put Mr Jelacic truly on notice about the nature and extent of the allegations, including the details of the facts relied on in support of the allegations.
  1. [30]
    Further, no supporting documents were provided to Mr Jelacic with the correspondence of 3 April 2021 (or subsequently).  Relevantly, the QFES variously concludes , inter alia, that Mr Jelacic refused his OIC's direction on 1 April 2021 and failed to wear a facemask as directed or provide a good faith response to Acting Superintendent or Chief Superintendent on the afternoon of 1 April 2021.  These conclusions are formed in the finding decision without any evidence having been provided by Mr Jelacic or referred to in the finding decision.
  1. [31]
    I am unable to determine, from reading the finding decision, what the terms of the direction was, who issued the direction and the immediate circumstances surrounding the issuing of the direction, or the particulars and evidence relied on to conclude that Mr Jelacic failed to provide a good faith response to the Acting Superintendent or Chief Superintendent.
  1. [32]
    Further, I am unable to determine what the nature of the evidence considered by the decision maker was and why that evidence was preferred over Mr Jelacic's evidence.
  1. [33]
    The submissions filed by the QFES go some little way further to provide some reasoning with respect to the finding decision, although the submissions do not reveal the source or the nature of the evidence which was ultimately accepted in making the finding decision.  In any event, Mr Jelacic was not provided with this information during the course of the show cause process.
  1. [34]
    Ultimately, I have concluded that the decision was deficient, so as to render the finding decision as not fair and reasonable.
  1. [35]
    Given that the disciplinary decision relies on the factual findings contained in the finding decision, I consider that the disciplinary decision is infected with the same procedural deficiencies as the finding decision, with the consequence that the disciplinary decision is rendered not fair and reasonable.

Conclusion

  1. [36]
    Accordingly, I have concluded that the decisions appealed against and the decision-making process associated with those decisions was not fair and reasonable.
  1. [37]
    Given the serious deficiencies associated with the decision-making process, I have not been able to form any conclusion with respect to the substance of the allegations contained in the decisions under appeal. 
  1. [38]
    It follows that this decision should not be viewed as expressing my opinion with respect to the directions allegedly issued, or whether Mr Jelacic properly established that he fell within a recognised exemption to the direction.
  1. [39]
    For these reasons, I have determined to set aside the finding decision and the disciplinary decision.

Orders

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) that the decisions the subject of this appeal (PSA/2021/224), being the decision substantiating the allegations issued on 22 April 2021 and the decision imposing a disciplinary penalty on 26 May 2021, be set aside.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld) that the stay of the disciplinary decision appealed against made on 17 June 2021 be revoked.

Footnotes

[1] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

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

[4] Respondent's written submissions filed 1 July 2021, p 2.

Close

Editorial Notes

  • Published Case Name:

    Jelacic v State of Queensland (Queensland Fire and Emergency Services)

  • Shortened Case Name:

    Jelacic v State of Queensland (Queensland Fire and Emergency Services)

  • MNC:

    [2021] QIRC 384

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    09 Nov 2021

Appeal Status

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

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