Marsh v State of Queensland (Department of Education)
[2021] QIRC 79
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- Unreported Judgment
- Marsh v State of Queensland (Department of Education)[2021] QIRC 79
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Marsh v State of Queensland (Department of Education)[2021] QIRC 79
Marsh v State of Queensland (Department of Education)[2021] QIRC 79
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Marsh v State of Queensland (Department of Education) [2021] QIRC 079 |
PARTIES: | Marsh, Judith Margaret (Appellant) v State of Queensland (Department of Education) (Respondent) |
CASE NO: | PSA/2020/250 |
PROCEEDING: | Public Service Appeal – Disciplinary Decision |
DELIVERED ON: | 12 March 2021 |
MEMBER: | Hartigan IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – disciplinary decision – whether a disciplinary finding was made – whether a disciplinary decision was made – whether there was some other basis for the appeal |
LEGISLATION: | Industrial Relations Act 2016 (Qld), s 562(A)(3), s 562B(2), s 562B(3) Public Service Act 2008 (Qld), s 26, 187, s 188, s 194, s 197, s 201 |
CASES: | Goodall v State of Queensland (Unreported, Supreme Court of Queensland, Dalton J, 10 October 2018) Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 |
Reasons for Decision
- [1]Ms Judith Marsh is employed by the State of Queensland (Department of Education) ("Education Queensland") as a secondary teacher. Ms Marsh appeals a purported disciplinary decision which was said to take effect on 17 September 2020.
- [2]Education Queensland contends that the decision referred to by Ms Marsh was not a disciplinary decision within the meaning of s 188 of the Public Service Act 2008 (Qld) ("PS Act").
- [3]Education Queensland puts two alternative submissions with respect to the manner in which the appeal should be dealt with as follows:
- (a)the Commission ought not to hear the appeal pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld) ("IR Act") on the basis that the appeal is misconceived; and, in the alternative
- (b)in the event that Ms Marsh intended to lodge a Fair Treatment Appeal, the Commission ought not hear the appeal pursuant to s 560A(1) of the IR Act on the basis that Ms Marsh has not used the procedures under the individual employee grievance directive and it would not be unreasonable to require Ms Marsh to do so; or, further in the alternative
- (c)in the event the Commission decides to hear the appeal, the Commission ought to confirm the decision, pursuant to s 562C(1) of the IR Act on the basis that the decision was fair and reasonable.
- [4]Following receipt of Education Queensland's submissions, the Commission issued further directions to Ms Marsh to provide written submissions in reply specifically addressing:[1]
- (i)the basis upon which the appellant contends that the relevant decision is a disciplinary decision and/or disciplinary finding; or
- (ii)if the appellant no longer contends that the relevant decision is a disciplinary decision or disciplinary finding, whether the decision is a decision against which appeals may be made pursuant to s 194 of the Public Service Act 2008; and/or
- (iii)whether the appellant should have, prior to commencing the appeal, used the procedures available, including those included in the individual employee grievance directive; and
…
- [5]Ms Marsh provided further submissions in response to the Directions issued by the Commission. Those submissions ultimately concluded that the Commission ought to hear the appeal pursuant to ss 187, 188 and 184 of the PS Act. Further it was submitted that the "disciplinary decision" was unfair and unreasonable and Ms Marsh did not use unnecessary physical contact with a student and consequently, the appeal should be upheld.
- [6]Section 197 of the PS Act provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission. Principles applicable under s 201 of the PS Act, regarding the nature of such public service appeals, applies to the equivalent provisions in ss 562B(2) and 562B(3) of the IR Act.[2]
- [7]I must decide the appeal by reviewing the decision appealed against.[3] As the word "review" has no settled meaning, it must take its meaning from the context in which it appears. An appeal under Ch. 11, Pt. 6, Div. 4 of the IR Act is not by way of a rehearing, but it involves a review of the decision arrived at and the decision-making process associated with it.[4] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for my determination is whether the decision appealed against was fair and reasonable.[6]
Relevant statutory provisions
- [8]One of the matters I must consider in determining whether the decision was fair and reasonable is whether the decision is a "disciplinary decision" as Ms Marsh contends it is.
- [9]Section 187 of the PS Act provides for the grounds for discipline as follows:
187 Grounds for discipline
- (1)A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
- (a)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
- (b)been guilty of misconduct; or
- (c)been absent from duty without approved leave and without reasonable excuse; or
- (d)contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
- (e)used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
- (ea)contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
- (i)failing to disclose a serious disciplinary action; or
- (ii)giving false or misleading information; or
- (f)contravened, without reasonable excuse, a provision of this Act; or
- (g)contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
- (2)A disciplinary ground arises when the act or omission constituting the ground is done or made.
- (3)Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) —
- (a)a public service employee under section 187A; or
- (b)a former public service employee under section 188A .
- (4)In this section—
"misconduct" means—
- (a)inappropriate or improper conduct in an official capacity; or
- (b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct—
victimising another public service employee in the course of the other employee’s employment in the public service
"relevant standard of conduct", for a public service employee, means—
- (a)a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
- (b)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
"responsible person", for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.
- [10]Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee:
188 Disciplinary action that may be taken against a public service employee
- (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
- (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.
- (3)However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
- (4)Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
- (a)must not be more than half of the amount payable to or for the employee in relation to the payment; and
- (b)must not reduce the amount of salary payable to the employee in relation to the period to less than—
- (i)if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
- (ii)otherwise—two-thirds of the guaranteed minimum wage for each week of the
period.
- (5)In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
- (6)An order under subsection (1) is binding on anyone affected by it.
- [11]Section 194 of the PS Act relevantly identifies the decisions against in which appeals may be made as follows:
194 Decisions against which appeals may be made
- (7)An appeal may be made against the following decisions—
…
- (b)a decision under a disciplinary law to discipline—
- (i)a person (other than by termination of employment), including the action taken in disciplining the person; or
…
- (eb)a decision a public service employee believes is unfair and unreasonable (a "fair treatment decision");
…
Relevant background
- [12]On or about 8 September 2020, a complaint was received by the school from a parent alleging that Ms Marsh had pushed his daughter during class.
- [13]On 9 September 2020, the student, together with two of her classmates, were asked by the school to write statements about what they said had happened during the relevant class.
- [14]On 10 September 2020, Ms Marsh was invited to the Principal's office where she was informed of the complaint. Ms Marsh was provided with copies of the statements written by the students and asked to provide her own written response and was asked to then attend a meeting to discuss the issue together with a support person.
- [15]On 15 September 2020, Ms Marsh attended a meeting with Ms Gerbo, the Principal, Mr Mayfield, the Deputy-Principal and her support person. Prior to this, Ms Marsh had produced her own written account. During the course of this meeting, Ms Gerbo asked Ms Marsh for her version of events including whether she denied pushing the student.
- [16]Ms Marsh denied that she had pushed the student.
- [17]Ms Gerbo then advised that she would consider the statements taken, including those of Ms Marsh, and then make a decision.
- [18]On 17 September 2020, Ms Gerbo provided the following correspondence which Ms Marsh contends is a disciplinary decision:
…
At this time, on the balance of probability, I have found that the issue raised is substantiated; that is the use of unnecessary physical contact with a student.
Given this, it is my duty to counsel you and advise you that this behaviour or similar must not be repeated. Further or repeated inappropriate behaviour may constitute a clear breach of the Department's Code of Conduct.
I am directing you to re-read the Code of Conduct and ensure you have clear understanding of your responsibility. Please advise me when you have completed this.
…
Consideration
- [19]Education Queensland contends that neither a disciplinary finding or a disciplinary decision was made by it against Ms Marsh on 17 September 2020.
- [20]Education Queensland contends that the correspondence of 17 September 2020 was not a disciplinary finding in accordance with s 187 of the PS Act as Education Queensland did not find Ms Marsh guilty of misconduct or having contravened a standard of conduct in a way that was sufficiently serious to warrant disciplinary action.
- [21]Further, Education Queensland contends that Ms Gerbo's decision to counsel and advise the appellant "that this behaviour or similar must not be repeated" and that "further or repeated inappropriate behaviour may constitute a clear breach of the Department's Code of Conduct" and direct Ms Marsh to "re-read the Code of Conduct and ensure [the appellant] has a clear understanding of [their] responsibility [and to advise when this is completed]" was not disciplinary taken action against Ms Marsh and does not constitute a reprimand. Accordingly, it is submitted that this this was not a disciplinary decision in accordance with s 188 of the PS Act.
- [22]I accept that the decision of 17 September 2020 does not constitute either a disciplinary finding or a disciplinary decision in accordance with either ss 187 or 188 of the PS Act.
- [23]The correspondence of 17 September 2020 constitutes management action taken by Ms Gerbo in response to receiving a complaint about Ms Marsh's conduct. The decision- making did not allege or make a finding about matters referred to in s 187 of the PS Act. Further, the management action outlined in the correspondence of 17 September 2020 does not constitute the taking of disciplinary action. Accordingly, I have determined that the decision is not one which may be appealed pursuant to s 194(1)(b)(i) of the PS Act.
- [24]As noted above, I invited Ms Marsh to make submissions as to whether the decision she was appealing was a disciplinary decision or whether there was some other basis for the appeal. Relevantly, it is noted that that invitation was made following the identification, by Education Queensland in its' submissions that it did not consider the decision to be a disciplinary decision and that Ms Marsh may have intended the appeal be dealt with as a fair treatment appeal.
- [25]In response, Ms Marsh contended that the Commission ought to hear the appeal pursuant to ss 187, 188 and 194 of the PS Act. It is clear that Ms Marsh continued to contend that the letter of 17 September 2020 constituted a disciplinary finding in accordance with s 187 of the PS Act on the taking of disciplinary action in accordance with s 188 of the PS Act. Specifically, Ms Marsh contends that it constituted a finding of misconduct, and that disciplinary action was taken in accordance with s 188 of the PS Act in the terms of the action being a reprimand. For the reasons identified above, I do not accept those submissions.
- [26]However, even if Ms Marsh had contended that her appeal was a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act (which she does not), I do not consider that the decision was not fair or reasonable.
- [27]As noted above, the decision constituted management action taken by Ms Gerbo in response to a complaint made on behalf of a student by a parent. It is clear from the information that is attached to the appeal documents that Ms Gerbo's management action included taking statements from the relevant students, providing a copy of those statements to Ms Marsh, as well as providing Ms Marsh with an opportunity to respond both in writing and further in a meeting.
- [28]I have had regard to s 26(2) of the PS Act which relevantly provides that a public service manager must take all relevant steps to ensure public service employees under the manager's management are aware of the work performance and personal conduct expected of the employee and the values that the public service and of the department or public service office in which the employee is employed. Further I have considered s 26(3) of the PS Act which provides that a public service manager must also, if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter.
- [29]I consider that the action taken by Ms Gerbo was appropriate in the circumstances having regard to s 26 of the PS Act.
- [30]Whilst I note that Ms Marsh does not accept the substance of the complaint, it is clear that Ms Gerbo has conducted a process in which she has provided Ms Marsh with an opportunity to be heard and to provide relevant submissions. I do not consider the decision or the decision-making process to have been either unfair or unreasonable.
Conclusion
- [31]For the reasons referred to above, I have determined, pursuant to s 562(A)(3) of the IR Act not to hear the public service appeal against the decision on the basis that it is misconceived and/or lacks substance.
Order
- [32]I order:
- The appeal is dismissed.
Footnotes
[1]Further Directions Order dated 26 October 2020.
[2]Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [4] – [5] (Deputy President Merrell).
[3]Section 562B(2) of the Industrial Relations Act 2016 (Qld).
[4]Goodall v State of Queensland (Unreported, Supreme Court of Queensland, Dalton J, 10 October 2018).
[5]Section 562B(3) of the Industrial Relations Act 2016 (Qld).
[6]Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] – [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).