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CITE

Unreported Judgment

Kemp v State of Queensland (Department of Education)[2022] QIRC 164Power IC
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Kemp v State of Queensland (Department of Education)[2022] QIRC 164

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Kemp v State of Queensland (Department of Education) [2022] QIRC 164
PARTIES:	Kemp, Courtney May (Applicant) v State of Queensland (Department of Education) (Respondent)
CASE NO.:	TD/2020/43
PROCEEDING:	Application for reinstatement
DELIVERED ON:	19 May 2022
HEARING DATES:	8 & 9 March 2021
MEMBER:	Power IC
HEARD AT:	Brisbane
ORDERS:	The Application is dismissed. Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), that any reference to the School and the Former Student, the subject to these proceedings, is de-identified. Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), I direct that all documents and exhibits in this matter be withheld from release or search.
CATCHWORDS:	INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – Application for reinstatement – where allegations were substantiated – where allegations substantiated based on a decision and admissions made before the Queensland Civil and Administrative Tribunal – where the decision before the Queensland Civil and Administrative Tribunal was de-identified – whether the employer can rely on a de-identified decision to substantiate allegations – whether dismissal was harsh, unjust or unreasonable INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – application for suppression order – where Applicant seeks an order to suppress personal identifying information and file details – where principles of open justice apply – where Applicant has not demonstrated an exception to the principles of open justice – order dismissing the application for suppression except for details of the former student and the school
LEGISLATION:	Education (Queensland College of Teachers) Act 2005 (Qld), ss 85 and 92 Industrial Relations (Tribunals) Rules 2011 (Qld), r 97 Industrial Relations Act 2016 (Qld), ss 316, 317, 320, 333, 451 and 580 Public Sector Ethics Act 1994 (Qld) Public Service Act 2008 (Qld), ss 187, 188 and 189 Public Service and Other Legislation Amendment Act 2020 (Qld), s 39
CASES:	Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 Briginshaw v Briginshaw [1938] HCA 34 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gold Coast District Health Service v Walker (2001) 168 QGIG 258 Hayes v State of Queensland (Queensland Health) [2020] QIRC 234 J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 Laegal v Scenic Rim Regional Council [2018] QIRC 136 Medical Board of Australia v Martin [2013] QCAT 376 Pharmacy Board of Australia v Coghill [2015] QCAT 27 Queensland College of Teachers v CMK [2019] QCAT 271 Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041
APPEARANCES:	Mr S Grant of Counsel, instructed by Adams Wilson Lawyers for the Applicant Ms M Brooks of Counsel, instructed by Crown Law for the Respondent

Reasons for Decision

[1]
Ms Courtney May Kemp ('the Applicant') was employed by the State of Queensland (Department of Education) ('the Respondent') as a teacher at a School ('the School') in 2010.^[1] On 24 March 2020, the Applicant was dismissed from her employment for misconduct pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act').

[2]
The Applicant filed an application for reinstatement on 14 April 2020 in the Queensland Industrial Relations Commission ('the Commission') on the basis that her dismissal was harsh, unjust and unreasonable.

Background

[3]
The Applicant commenced employment as a teacher at the School on a temporary basis on 25 January 2010 and was permanently appointed on 21 May 2012.

[4]
In January 2016, the Respondent's Ethical Standards Unit ('ESU') commenced an investigation into allegations that the Applicant had behaved in an inappropriate and unprofessional manner towards students.

[5]
On 19 January 2016, the Applicant was suspended on normal remuneration pending the outcome of the ESU investigation. At the time of suspension, the Applicant was issued with a direction not to have any contact with students, staff and former students of the School during her suspension without first obtaining permission from the Respondent.

[6]
On 14 April 2016, the Applicant attended a recorded interview with officers of the ESU.

[7]
By letter dated 30 June 2016, the Respondent advised the Applicant of all the allegations considered as part of the investigation by the ESU.

[8]
The student ('the Former Student'), the subject of the allegations involving the Applicant, was a Year 12 student at the School throughout 2015 and completed high school in November 2015.

[9]
In July 2016, the investigation into the allegations against the Applicant was completed with the following allegations found capable of being substantiated:

she drove [the Former Student] in her car without authorisation;
she spoke about and/or showed students her breast augmentation;
she divulged details of her personal life to students;
she braided students' hair (including [the Former Student's] hair) while on a ski trip;
she had a photograph of a student on her personal mobile phone;
she spray tanned students.^[2]

[10]
The Applicant took a one year pre-approved leave of absence to travel overseas from 11 July 2016 to 10 July 2017. The Applicant's suspension was lifted whilst she accessed leave on the basis that the disciplinary process would re-commence upon her return.

[11]
The Applicant's teacher registration with the Queensland College of Teachers ('QCT') was cancelled during the leave period due to non-payment of the annual registration fee.

[12]
After the Applicant's return to Australia in July 2017, the Applicant's suspension was reinstated and the disciplinary process was recommenced. During the period in which the Applicant had been overseas, the Respondent received new evidence in the form of images of electronic messages between the Applicant and another teacher at the School and between the Applicant and her former housemate which supported the allegation that the Applicant engaged in a sexual relationship with the Former Student.

[13]
On 25 August 2017, the re-opened investigation was finalised on the basis the allegation that the Applicant engaged in a sexual relationship with the Former Student was not capable of substantiation on the evidence available.^[3]

[14]
On 25 October 2017, the ESU issued a report to close the investigation into the additional allegation on the basis that the allegation was not substantiated.^[4]

[15]
On 8 December 2017, a disciplinary proceeding was commenced with respect to the allegations outlined above at [9], which was outlined to the Applicant in the form of six sub-allegations under Allegation One. The Applicant did not deny the allegations.

[16]
On 19 February 2018, the Applicant was advised that, on the basis that the six sub-allegations under Allegation One were substantiated, the proposed penalty was that she was to be the subject of a disciplinary transfer to a school in the south east region and a reprimand. On 21 March 2018, the Applicant responded to the proposed disciplinary action advising she was agreeable to the proposed disciplinary action.

[17]
On 24 April 2018, as an outcome of the disciplinary process, the Respondent imposed the penalty of a disciplinary transfer and a reprimand and lifted the Applicant's suspension. The Applicant was then advised that the decision to transfer her to a different school and to impose a reprimand was unable to be implemented as the Applicant's registration with the QCT had been cancelled on 7 March 2017 due to the Applicant's non-payment of the annual registration renewal fee. The Applicant was consequently unable to meet the requirement to maintain registration under the Education (Queensland College of Teachers) Act 2005 (Qld) ('QCT Act') and consequently, the transfer did not occur.

[18]
As the Applicant no longer held registration with the QCT, the Applicant was stood down without pay pursuant to s 333 of the IR Act at the time.

[19]
On 21 May 2018, the Respondent informed the QCT of the outcome of the disciplinary action taken against the Applicant as required under the QCT Act. The QCT subsequently conducted its own investigation of the allegations made against the Applicant.

[20]
On 6 December 2018, the QCT referred allegations involving the Applicant to the Queensland Civil and Administrative Tribunal ('QCAT') to determine whether a ground for disciplinary action was established under s 92(1) of the QCT Act.

[21]
Following consideration of the disciplinary proceedings brought by the QCT against the Applicant under the QCT Act, QCAT delivered its decision in Queensland College of Teachers v CMK ('the QCAT decision').^[5] In the decision, QCAT determined that:

(a)
the Applicant engaged in inappropriate and/or over-familiar behaviour towards senior dance students including:

(i)
spray tanning students both at school and at students' homes without the knowledge or consent of other supervisor;

(ii)
discussed with students about parties she attended and underage drinking;

(iii)
discussed her breast enhancement surgery and lifted her top to expose her sports bra;

(iv)
discussed her social life and boyfriends with students; and

(v)
told students about an incident at a nightclub while intoxicated;

(b)
during 2015, whilst employed as a teacher at the School, the Applicant engaged in an inappropriate and/or over-familiar relationship with the Former Student;

(d)
on unknown dates during late 2016 and early 2017, the Applicant and the Former Student were physically intimate while staying in London, England.

[22]
QCAT determined that the Applicant's registration should be suspended for three years from the date of her suspension on 19 January 2016. The Applicant's period of registration suspension therefore ended on 19 January 2019. QCAT also ordered that any application for re-registration by the Applicant was to be accompanied by a psychologist's report. The Applicant subsequently commenced attending sessions with a psychologist in relation to the issues raised by QCAT as part of its orders.

[23]
Following the three year suspension, the Applicant provided a report to the QCT from psychologist Jessie Baker dated 11 October 2019 along with an application to re-establish her registration as a teacher.

[24]
The QCT issued an approval notice on 22 January 2020, registering the Applicant as a teacher for five years from 23 January 2020 to 23 January 2025 subject to the payment of the annual registration fee, the Applicant familiarising herself with the publication 'Professional Boundaries: A Guideline for Queensland Teachers', and a submission of a one to two page reflection to the QCT.

[25]
On 24 January 2020, the Applicant advised the Respondent of her re-registration as a teacher and sought to have her stand down lifted and to recommence in a teaching position in accordance with the existing penalty.

[26]
On 5 February 2020, the Applicant attended a meeting at which the Respondent delivered to the Applicant a letter stating that the Applicant's suspension pursuant to s 333 of the IR Act had been cancelled on the basis that the Applicant was now registered. The Applicant was then suspended pursuant to the then s 189(1) of the PS Act.

[27]
On 18 February 2020, Mr Dion Coghlan, Assistant Director-General, Human Resources, issued a combined first and second show cause notice ('the show cause notice') outlining allegations as to misconduct by the Applicant pursuant to ss 187(1) and 187(4)(a) and (b) of the PS Act. The show cause notice required the Applicant to show cause in relation to proposed disciplinary action in relation to the following allegations:

Allegation One: You engaged in conduct that does not satisfy the standard of behaviour generally expected of a teacher by engaging in an inappropriate and/or overfamiliar relationship with a student, [the Former Student].

Allegation Two: You engaged in conduct that does not satisfy the standard of behaviour generally expected of a teacher by engaging in an over-familiar and/or intimate relationship with a recent former student, [the Former Student].

Allegation Three: You failed to follow a lawful direction outlined in the suspension letter dated 19 January 2016 from Mr Desmond Kluck, former Executive Director, Performance and Safety.

Allegation Four: You provided misleading information in your interviews with the departmental investigators on 14 April 2016 and 17 October 2017.^[6]

[28]
Mr Coghlan advised that, on the basis of the factual findings made by QCAT in its decision, he considered that the Applicant had engaged in conduct that did not satisfy the standard of behaviour generally expected of a teacher. The Applicant was advised that Allegations One, Two, Three and Four had been substantiated and asked to show cause why the decision maker should not find her conduct amounted to a breach of the Code of Conduct for the Queensland Public Service ('the Code of Conduct') with respect to Allegation One and why her conduct the subject of Allegations Two, Three and Four should not be found to amount to misconduct. The Applicant was advised that if the decision maker made the proposed disciplinary findings, they would also give consideration to the termination of her employment. The Applicant was invited to respond to both the proposed disciplinary findings and the proposed termination of her employment.

[29]
The Applicant responded to Mr Coghlan's correspondence on 6 March 2020, objecting to the Respondent's reliance on the QCAT decision in circumstances where she had not been identified by name,^[7] and further submitted, inter alia, that:

(a)
the Applicant had been subject to investigations and proceedings in this matter since 2016, expending substantial legal costs;

(b)
the Applicant had been denied natural justice;

(d)
the Applicant was encouraged to make admissions in good faith on the basis that the penalty sought by QCT was something the Applicant could 'accept';

(e)
the Applicant did not willingly make the admissions in the QCAT proceedings, but did so only in good faith on legal advice;

(f)
the Applicant made a commercial and legal decision to make admissions during the QCAT proceedings; and

(g)
the Applicant has already been punished by the Respondent, QCT and QCAT.

[30]
On 24 March 2020, the Applicant received notification of Mr Coghlan's decision to terminate her employment and the reasons for the decision.

Legal framework

[31]
Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable. The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.^[8]

[32]
As outlined in Coleman v State of Queensland (Department of Education) ('Coleman'),^[9] a dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted. A dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. A dismissal may alternatively be considered harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer act.

[33]
Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application for reinstatement under s 317:

320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—

(a)
whether the employee was notified of the reason for dismissal; and

(b)
whether the dismissal related to—

(i)
the operational requirements of the employer’s undertaking, establishment or service; or

(ii)
the employee’s conduct, capacity or performance; and

(i)
whether the employee had been warned about the conduct, capacity or performance; or

(ii)
whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

(d)
any other matters the commission considers relevant.

[34]
The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.^[10] However, as determined in Gold Coast District Health Service v Walker,^[11] in matters involving an employee being dismissed after a discipline process under the PS Act where the delegate has to be reasonably satisfied the employee has been guilty of misconduct, the onus of proof falls upon the Respondent to establish, to the reasonable satisfaction of the Commission, that the employee was guilty of the misconduct as alleged.

[35]
As Deputy President Merrell considered in Coleman, consideration of whether the misconduct occurred is to be decided on the balance of probabilities and the requisite degree of satisfaction must have regard to the seriousness of the alleged conduct and the gravity of the consequences of the finding, invoking the principle in Briginshaw v Briginshaw ('Briginshaw').^[12]

[36]
At the time of the disciplinary process, the relevant provisions of the PS Act were as follow:^[13]

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)
performed the employee’s duties carelessly, incompetently or inefficiently; or

(b)
been guilty of misconduct; 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—

(i)
a provision of this Act; or

(ii)
a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(iii)
a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

(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

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

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

…

Applicant's submissions

[37]
The Applicant made submissions with respect to each of the allegations which will be considered below along with the following general submissions in summary:

(a)
the Respondent has failed to establish that the Applicant has engaged in the misconduct alleged; and

(b)
the termination based on the alleged misconduct was:

(i)
harsh on the basis the Applicant had already been subjected to a period of suspension on the order of QCAT following investigation of the underlying matters by both the Respondent and the QCT;

(ii)
unjust on the basis any misconduct did not occur as alleged;

(iii)
unreasonable on the basis that Mr Coghlan could not be satisfied on the basis of the material before him that the alleged misconduct occurred; and further

(iv)
unreasonable on the basis that Mr Coghlan failed to take into account or give due regard to the relevant facts available to or ascertainable from the material before him.

Respondent's submissions

[38]
The Respondent submits that the Applicant was dismissed because she contravened the Code of Conduct and engaged in misconduct in both a private and official capacity while working as a teacher.

[39]
The Respondent contends that it was entitled to rely on QCAT's findings in relation to the Applicant's conduct and was not required to conduct a separate investigation into the conduct before it could make factual findings against the Applicant.

[40]
The Respondent contends that the Applicant's response was carefully considered by the decision maker, however the Applicant did not demonstrate any reason as to why the Respondent could not rely on the factual findings made by QCAT, nor provide any documentary or witness evidence to support her submissions despite having the opportunity to do so.

[41]
Given the nature and seriousness of the Applicant's conduct, the Respondent contends that where the decision maker was satisfied that the Applicant engaged in the conduct as alleged, the termination of her employment was entirely reasonable and proportionate.

Consideration

[42]
The issues for determination in this matter are as follows:

(a)
Were the allegations reasonably substantiated on the balance of probabilities?

(b)
To the extent that the Applicant engaged in the conduct as alleged in Allegations Two, Three and Four, does such conduct constitute misconduct within the meaning of s 187(4) of the PS Act? and

Witness evidence

[43]
At the hearing, the Applicant gave generally frank evidence for matters not in dispute. However, on matters that were contentious the Applicant's answers appeared to be either evasive or self-serving. I found the Applicant to be an unimpressive witness.

[44]
A key issue in this matter related to the differing accounts the Applicant gave to QCAT and the Respondent. A central tenet of the Applicant's evidence was that she did not agree with the 'agreed statement of facts' that was put before QCAT, and that she only agreed to the statement on the basis of legal advice to obtain a satisfactory penalty and for 'closure' so she could move on with her life. The Applicant essentially asks the Commission to ignore the admissions made to the same conduct and instead prefer an entirely different version of events that was put before this Commission. The agreed statement of facts included admissions of conduct that would be considered very serious by anyone involved in the teaching profession. In my view, it is simply not plausible that, as a teacher intending to return to work in schools, the Applicant admitted to such conduct if the conduct did not in fact occur. I have not accepted the Applicant's explanation as to why her evidence before the Commission is inconsistent with the admissions made before QCAT and have approached the rest of the Applicant's evidence with caution.

[45]
The Applicant did not call any other witnesses.

[46]
The Respondent's witnesses, Mr Robert Leeder, Senior Investigator, Department of Education; Mr Peter Edwards, Director (Ethical Standards), Office of Industrial Relations; Mr Barry Hawke, Principal Procurement Advisor, Department of Education; and Mr Coghlan all gave frank and straightforward evidence.

Were the allegations reasonably substantiated on the balance of probabilities?

[47]
The termination letter outlined four allegations against the Applicant. I will consider each allegation in turn.

Allegation One: [The Applicant] engaged in conduct that does not satisfy the standard of behaviour generally expected of a teacher by engaging in an inappropriate and/or over-familiar relationship with a student, [the Former Student].

[48]
The allegation relates to the conduct of the Applicant towards the Former Student while he was still a student at the School during 2015.

[49]
The Applicant submits that Mr Coghlan relied upon the facts outlined in [5(a)], [5(d)] and [5(e)] of the QCAT decision which were events alleged to have occurred during the 2015 school year with the Former Student who was attending year 12. Paragraphs [5(a)], [5(d)] and [5(e)] of the QCAT decision relevantly provide:

[5]
During 2015, whilst employed as a teacher at her school, the respondent engaged in an inappropriate and/or overfamiliar relationship with the relevant student, namely:

(a)
On or about 11 March 2015, drove the relevant (sic) home after the school Talent Quest without consent from her supervisor or student the relevant student’s parents;

…

(d)
On numerous occasions during term 3 and/or term 4, 2015, CMK allowed the relevant student to remain in her classroom during her year 11 dance class with no educational purpose;

(e)
The relevant student attended CMK's home at her invitation and had dinner with CMK and her flatmates [The parties do not agree on the date of this event - the QCT says this occurred on a date in October 2015, the respondent says this occurred on a date in December 2015]^[14]

[50]
The show cause notice states that Mr Coghlan relied upon the admitted conduct in the QCAT decision in which it was accepted that the Applicant engaged in the following:

5.1 On or about 11 March 2015, drove [the Former Student] home after the school Talent Quest without consent from your supervisor or [the Former Student]'s parents;

5.2 On numerous occasions during term 3 and/or term 4, 2015, you allowed [the Former Student] to remain in your classroom during your year 11 dance class with no educational purpose;

5.3 [The Former Student] attended your home at your invitation and had dinner with you and your flatmates.^[15]

[51]
The Applicant submits that the Respondent should not have relied upon the QCAT decision, the admissions made by the Applicant in the QCAT proceeding, or the findings of QCAT as the basis for new allegations of misconduct. The Applicant submits that she was encouraged by her previous legal advisors, on the basis that the penalty sought by the QCT was something she could accept, to make admissions in good faith to shorten the proceedings, provide the parties with some certainty, and minimise all parties' legal costs.

[52]
I firstly note that there is no dispute that the person referred to in the QCAT decision is indeed the Applicant in this matter.

[53]
The description of the Applicant's admitted conduct appears in the QCAT decision that is publicly available and published on the Supreme Court Library website. Whilst the mediation between the parties may have occurred on a without prejudice basis, the QCAT decision records that both the QCT and the Applicant were in agreement that the Applicant engaged in the conduct outlined in the QCAT decision.

[54]
The QCAT decision records the conduct which was agreed to have occurred by both the QCT and the Applicant, along with a matter about which the parties did not agree. The disputed matter was the date upon which the Former Student attended the Applicant's home at her invitation and had dinner with the Applicant and her flatmates. The QCAT decision recorded that the parties did not agree on this date, with the QCT stating this occurred in October 2015 and the Applicant stating this occurred on a date in December 2015.

[55]
The reference confirming that the Applicant did not agree with the October date in the QCAT decision indicates that the Applicant was willing and able to disagree with facts put before her during that process. I do not accept that the Applicant simply agreed to a set of facts put before her in order to settle the matter. It seems to me that if the Applicant was capable of disagreeing with details such as the date of a dinner, it is unlikely that she would have admitted to any other conduct with which she did not agree had occurred. The admissions made by the Applicant before QCAT were of a serious nature and confirm the existence of an inappropriate and/or over-familiar relationship with the Former Student. The agreed penalty was significant, including a three year suspension from teaching, and, in my view, the conduct would not have been agreed to lightly. It is clear that the Applicant denied such conduct when interviewed by the Respondent at first instance, then admitted the conduct before QCAT, before then denying the conduct again in these proceedings. On the balance of probabilities, I consider it unlikely that the Applicant provided false admissions before QCAT, with the more likely scenario being that the Applicant gave false denials to the Respondent and before this Commission. I consider that it is more likely that the Applicant agreed to the conduct that occurred in the agreed statement to QCAT on the basis of securing a better outcome and the wish to avoid a hearing before that Tribunal, and now retracts those admissions because they led to the termination of her employment. I also note that it is an offence to provide false or misleading information under the QCT Act.^[16]

[56]
The Respondent's reliance upon the Applicant's admissions that form part of the QCAT decision was reasonable in the circumstances. The Applicant's admissions were not confidential between the parties once the agreed statement of facts was placed before QCAT. The admissions then formed part of a public decision and it was unnecessary for the Respondent to further investigate conduct that the Applicant had admitted on the public record. On the basis of the Applicant's admissions before QCAT, it was reasonable for Allegation One to be substantiated.

[57]
If I am wrong and the Respondent was not entitled to rely upon the Applicant's admissions before QCAT, I will consider whether there was sufficient evidence otherwise to substantiate the allegation.

[58]
Particular 5.1 in Allegation One provides that, on or about 11 March 2015, the Applicant drove the Former Student home after the School Talent Quest without consent from her supervisor or the Former Student's parents. The Applicant gave evidence that she did not drive the Former Student home after the School Talent Quest, despite it forming part of the agreed facts before QCAT. Under cross-examination, the Applicant admitted that she had previously driven the Former Student to his home on another occasion whilst he was a student, however it was not after the School Talent Quest.^[17]

[59]
Whether the conduct occurred after the School Talent Quest or after another event is not central to the allegation, with the relevant conduct being the Applicant's decision to drive the Former Student to his home whilst he was still a student without permission or consent from the Applicant's supervisor or the Former Student's parents. Based upon the Applicant's evidence at the hearing, I accept that the Applicant drove the Former Student home without the consent of her supervisor or the Former Student's parents.

[60]
The conduct described under particular 5.2 of Allegation One involved the Applicant allowing the Former Student to remain in her classroom without educational purpose during terms 3 and 4. The Applicant gave evidence that the Former Student was one of a number of students that would attend to visit friends and possibly get access to a fan, and that the Applicant along with other school officials were attempting to stop this from occurring. The Applicant submits that the decision maker ignored the fact that the Former Student was not singularly present, and not present for the inferred purpose of seeing the Applicant.

[61]
I accept that this conduct occurred as alleged in that the Former Student was in the Applicant's classroom with no educational purpose, although note this may have been in the presence of other students.

[62]
The incident outlined under particular 5.3 of Allegation One involved a dinner with the Former Student at the Applicant's house. The QCAT decision states the parties could not agree whether the dinner occurred in October (before the end of the school year) or December (after the end of the school year). The Applicant gave evidence that the dinner occurred in December.^[18]

[63]
The Applicant agreed she had not told the investigators about the dinner but was 'open and honest at the time of what I could remember'.^[19] The Applicant stated that she could not remember whether she invited the Former Student or not, but then recalled that he was distressed and called or texted her and asked if he could come around to talk.^[20]

[64]
The Applicant was somewhat unclear in her recollection of the details surrounding this event, however maintained that the event occurred in December (at which point the Former Student had graduated) rather than October (whilst the Former Student was still a student). The Applicant was undoubtedly aware that the conduct was more serious if it was found to have occurred in October.

[65]
In the Applicant's response to the show cause notice, the Applicant states that the dinner occurred 'after the end of the final term', that is, after 20 November 2015. The Respondent did not accept this submission on the basis of concerns regarding the Applicant's credibility and determined that there is no reason to question the QCT's submission to QCAT regarding the correct date of this event. I accept that the QCT had no reason to adhere to an incorrect date before QCAT if they had no evidence to support the October date, however there is insufficient evidence before me to conclude that the dinner occurred in October rather than December 2015. On the balance of probabilities, I accept that the Applicant invited the Former Student to her house for dinner with the Applicant and her flatmates in December 2015.

[66]
The Applicant further submits that Mr Coghlan ignored the historical context of the long-standing family relationship between the Applicant and the Former Student's mother being her grade one teacher. I do not accept the submission that the 'historical context of the long-standing family relationship between the Applicant and her grade one teacher' is a mitigating factor. The Applicant's evidence that she was providing support to the Former Student who was allegedly distressed after a fight with his mother appears at odds with the Former Student then attending a dinner with the Applicant and her flatmates.

[67]
The decision maker determined that the Applicant's conduct the subject of Allegation One was found to have breached cls 1.5 and 3.1 of the Code of Conduct. In my view, the substantiated conduct is still a breach of cls 1.5 and 3.1 of the Code of Conduct even if the dinner occurred a number of weeks after the Former Student graduated.

[68]
Clause 1.5 of the Code of Conduct require employees to demonstrate a high standard of workplace behaviour and personal conduct and includes the responsibility to:

a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.

[emphasis added]

[69]
Clause 3.1 of the Code of Conduct require employees to commit to their roles in public service including adhering to policies, organisational values, and organisational documents of their employing agency. This includes the Respondent's Standard of Practice which imposes the requirement that employee interactions with students must be, and be seen to be, professional at all times including outside school hours.

[70]
The conduct subject of Allegation One is reasonably considered a breach of cls 1.5 and 3.1 of the Code of Conduct and consequently amounted to a contravention of the then s 187(1)(f)(ii) of the PS Act on the basis that the Applicant contravened, without reasonable excuse, a standard of conduct applying to her under an approved code of conduct under the Public Sector Ethics Act 1994 (Qld).

Allegation Two: [The Applicant] engaged in conduct that does not satisfy the standard of behaviour generally expected of a teacher by engaging in an over-familiar and/or intimate relationship with a recent former student, [the Former Student].

[71]
Mr Coghlan relied upon the admitted conduct in the QCAT decision in which it was accepted that the Applicant:

Collected [the Former Student] from his home and drove him to a rural location where they spent the day together;

During mid-December 2015, collected [the Former Student] from his home and drove him to a cinema where the two watched a Star Wars movie;

Took [the Former Student] to a Christmas production at a church where she introduced him as her "boyfriend";

On or about 31 December 2015, was publicly physically intimate with [the Former Student] at a New Year's Eve party at her home, including kissing each other on the lips;

On 10 January 2016, took [the Former Student] as her guest/partner to a Baptism at a church where [the Former Student] and she held hands;

On an unknown date in June/July 2016, following a farewell dinner for the Applicant met [the Former Student] at a nightclub where she was physically intimate with him in public, including playing with each other's hair, kissing each other on the neck, kissing each other on the lips and dancing in close proximity;

On an unknown date in June/July 2016, [the Former Student] attended an airport with the Applicant when she left for a 12-month UK/European trip. While at the airport, [the Former Student] and the Applicant were publicly physically intimate, including holding hands, hugging, and kissing each other; and

On unknown dates during late 2016 and early 2017, [the Former Student] travelled to London, England. During the trip, he met with the Applicant during which time [the Former Student] and the Applicant were physically intimate.^[21]

[72]
The Applicant submits that the facts relied on by Mr Coghlan in support of Allegation Two, being [5(a)], [5(d)] and [5(e)] of the QCAT decision again was inappropriate on the basis that it alleges conduct that occurred prior to the end of the school term and that the inclusion of the allegations is duplicitous, merely seeking to inflate the allegations against the Applicant.^[22] I accept this submission and it is unclear why the matters outlined as having occurred prior to the end of the school term, the subject of Allegation One, are repeated in consideration of Allegation Two. However, in my view, Allegation Two is reasonably substantiated even if these earlier events are excluded from consideration.

[73]
In relation to the allegations based on [6(a)] to [6(h)] of the QCAT decision, the Applicant denied any physical intimacy or relationship beyond friendship with the Former Student in her evidence before this Commission.

[74]
The Applicant, again, submits that she was advised as part of the QCAT mediation process that agreeing to the facts would allow her to move on with her teaching career. The Applicant contends that this allegation suffers the same issues as raised in relation to Allegation One, being a failure to take into account all of the information, such as the family history and misconceiving the QCAT process in relation to statements of agreed facts and the evidence properly available.

[75]
The Applicant submits that Mr Coghlan points to a de-identified media article and submits that the article does not identify the School nor the Respondent as being in control of the School and therefore cannot be relied upon as supporting the allegation.^[23] I do not consider the article in the Brisbane Times is evidence in support of this allegation in that it merely quotes excerpts from the QCAT decision.

[76]
As outlined above, I do not accept that the Applicant made the admissions before QCAT simply to allow her 'to move on with her teaching career'. The admissions are serious and it is simply implausible that the Applicant would refuse to agree to a disputed date (being the dinner date with the Former Student) in the statement of agreed facts but would agree to significantly more serious conduct if that conduct had not occurred. On the basis of the admissions made before QCAT, I consider Allegation Two to be substantiated.

[77]
If the admissions before QCAT are not to be relied upon, I will consider if the conduct is reasonably capable of being substantiated.

[78]
The Applicant admitted the following at the hearing before this Commission:

(a)
she went to Kondalilla Falls with the Former Student in December 2015;^[24]

(b)
she went to watch the Star Wars movie with the Former Student in December 2015;^[25]

(d)
the Former Student attended a Baptism with the Applicant in January 2016;^[27]

(e)
the Applicant ran into the Former Student at a nightclub in around June 2016 where they were dancing in the same group;^[28]

(f)
the Former Student was at the airport on 10 July 2016 where the Applicant was about to board a flight to London to spend 12 months overseas;^[29] and

(g)
the Former Student attended London in late 2017 following on from a family holiday and the Applicant saw the Former Student at that time.^[30]

[79]
With respect to the admission that the Applicant went to a rural location (Kondalilla Falls) with the Former Student in December 2015, I note that the Respondent received a report that the Applicant had been seen with the Former Student at Kondalilla Falls, Montville by another teacher on 5 December 2015:

Visual Art teacher of [the School] … saw dance teacher of [the School] Courtney Kemp on Saturday December 5 with 2015 Year 12 student [the Former Student] at Kondallia (sic) Falls Montville. Both Courtney and [the Former Student] were alone (no other company) and very much looked like they were a couple visiting the falls.^[31]

[80]
Sometime after 17 December 2015, the Applicant went to the cinema with the Former Student. The Applicant's evidence was that she and the Former Student saw a 'Star Wars' movie together approximately two weeks after they went on the hike.^[32]

[81]
The Applicant gave evidence confirming that on 31 December 2015, the Former Student was at the Applicant's home during a New Year's Eve party and attended a Baptism with her in January 2016. The Applicant gave evidence that she danced in the same group as the Former Student at a nightclub in June 2016 and that the Former Student was at the airport on 10 July 2016 to farewell the Applicant before her flight to London. The Applicant gave evidence that the Former Student attended London in late 2017 and saw the Applicant at that time.

[82]
The Applicant's admissions at the hearing before this Commission allow for Allegation Two to be substantiated on the basis of the admitted conduct. The Applicant submits that while certain conduct is admitted, the primary facet of the allegation as to intimacy with the Former Student is not proven. The allegation is that the Applicant engaged in an over-familiar and/or intimate relationship with the Former Student, and on the evidence before me I am satisfied that, at the very least, the Applicant had engaged in an over-familiar relationship with the Former Student.

[83]
I note the Applicant also admitted engaging in conduct that was the subject of the earlier disciplinary process, however this conduct was not relied on by the decision maker in their decision to terminate the Applicant's employment as the matter had previously been addressed by the earlier disciplinary process.

[84]
The Applicant's evidence that she was unaware that the Former Student was at the nightclub and was not aware that he would be attending the airport prior to her departure or intended to visit her in London is not convincing. Given the history of interactions between the Applicant and the Former Student, it seems improbable that the interactions were unplanned.

[85]
Evidence was admitted in the form of copies of text messages between the Applicant and her former house mate, Ms Juanita Rowe.^[33] The text messages to Ms Rowe demonstrate the Applicant had a close relationship with the Former Student, however I accept that there is insufficient evidence that the relationship was intimate. The Applicant's evidence that the messages were in relation to the Former Student as a friend was not persuasive.

[86]
In the series of message exchanges between the Applicant and Ms Rowe, the Applicant confirmed that she had caught up with the Former Student for a swim at Kirra Beach and stated:

It's hard – I do miss him. It's hard. I have feelings.^[34]

[87]
The Applicant confirmed in cross-examination that she was referring to feelings for the Former Student, although denied they were romantic feelings.^[35]

[88]
Following further messages discussing the allegations about the relationship with the Former Student, the Applicant sent a further text message to Ms Rowe stating:

He's not just some 17 year old boy.^[36]

[89]
When cross-examined about this message, the Applicant stated that the Former Student was 'not just a random 17 year old boy' and 'there's some context behind it'. The Applicant did not dispute Counsel's characterisation of their being a 'close bond' with the Former Student.^[37]

[90]
I accept that if the Applicant's admissions before QCAT are not to be relied upon, there is insufficient evidence, when applying the Briginshaw principle, to establish that the Applicant was engaged in an intimate relationship with the Former Student. There is, however, sufficient evidence that the Applicant engaged in an over-familiar relationship with the Former Student. The number of interactions and personal nature of the interactions admitted to by the Applicant within weeks of the end of the school year confirm that the nature of the relationship between the Applicant and the Former Student was over-familiar. This is the case even if the 'family relationship' evidence of the Applicant is accepted. I am satisfied that it was reasonable for Allegation Two to be substantiated.

Allegation Three: [The Applicant] failed to follow a lawful direction outlined in the suspension letter dated 19 January 2016 from Mr Desmond Kluck, former Executive Director, Performance and Safety.

[91]
The Respondent delivered a suspension letter dated 19 January 2016 from Mr Kluck to the Applicant stating the following:

During the course of your suspension, you are directed not to enter any departmental school site, unless you have sought and obtained the prior approval of your departmental contact. Further, you are directed not to contact any students of the Department, staff or former students of [the School] during the course of your suspension, without first obtaining permission from your departmental contact. This direction includes, but is not limited to, verbal/physical contact and the use of electronic communication/social networking mediums.^[38]

[92]
In the termination decision, Mr Coghlan determined that the Applicant met with the Former Student on four occasions in breach of a direction contained within the suspension letter.

[93]
The Applicant gave the following evidence in relation to the four occasions:

(a)
the meeting between the Applicant and the Former Student at Kirra Beach on March 2016 was unplanned, with the Applicant being contacted by the Former Student;^[39]

(b)
the dinner with the Former Student at the Fish Factory did occur, and while technically in breach of the direction, occurred as a result of the Applicant misunderstanding her obligation at that time, with the Former Student initiating contact with the Applicant;^[40]

(c)
the Applicant did run into the Former Student at a nightclub in Fortitude Valley, but it was not pre-planned;^[41] and

(d)
the Former Student did attend at the airport on 10 July 2016 when the Applicant was due to catch a flight overseas for 12 months leave, but this was unplanned with the Former Student attending unexpectedly.^[42]

[94]
The Applicant submits that the inclusion of this allegation based on facts already raised in Allegations One and Two is duplicitous and seeks to inflate the gravity of the alleged offending. In my view, the conduct that is a contravention of a direction by the employer may reasonably be considered on its own terms unrelated to the substantive nature of the conduct itself. The conduct based on facts raised in Allegation Two gives rise to Allegation Three not because it is evidence of an over-familiar relationship, but rather because the conduct occurred contrary to the employer's clear direction. There was nothing unreasonable about the Respondent addressing the failure to follow a lawful direction as an allegation separate to the substantive conduct as it gives rise to questions about the Applicant's conduct as an employee rather than solely as a teacher.

[95]
The Applicant further submits that Mr Coghlan attempted to insert a requirement on the Applicant that was not contained within the original direction which is that the Applicant had to notify the Respondent after contact had been made with the Former Student.

[96]
The Applicant submits that when challenged in cross-examination, Mr Coghlan stated, 'you would think that… if the direction said that you were not to have contact with a former student, and you did, we would expect to be notified'.^[43] The Applicant submits in the context of the allegation as made, this is simply incorrect as the direction is focussed on seeking approval prior to any contact. The Applicant submits that in circumstances where any contact was unplanned, the direction is not breached and the findings as made by Mr Coghlan are not supported.

[97]
I accept the submission that the Respondent's direction required the Applicant to seek approval prior to contact but does not impose an obligation to notify the Respondent if inadvertent contact occurred. I do not, however, accept that the contact with the Former Student was unplanned. The Applicant's evidence that all relevant interactions with the Former Student were initiated by the Former Student or were inadvertent is implausible. I also note that the Applicant did not seek to bring the alleged unplanned interactions with the Former Student at Kirra Beach or the Fish Factory to an immediate end in the knowledge that such contact was in breach of the direction. The Applicant's evidence in relation to the dinner at the Fish Factory was that she told the Former Student they should not be meeting, but then proceeded to have dinner with him. The Applicant's evidence that both she and the Former Student happened to be at the Gold Coast when he contacted her to catch up at Kirra Beach is improbable.

[98]
The Applicant submits that an inference should not be drawn that the Applicant was aware that a number of interactions were going to occur with the Former Student, such as attending the same nightclub, being at the coast at the same time, or that the Former Student was going to attend the airport when the Applicant was leaving for London. It is, in my view, implausible that all of these interactions occurred in circumstances that were coincidental and was not convinced by the Applicant's evidence with respect to these interactions. Given the history of admitted interactions between the Applicant and the Former Student, it seems entirely unlikely that these interactions were unplanned.

[99]
The Applicant gave evidence that she was unaware of the Former Student's support network and that she felt he needed to be provided with support. I accept the Respondent's submission that a teacher who is aware that a former recent student may be suffering and from whom she is prohibited from contacting ought to have known to contact the School or, in circumstances where the teacher is apparently a family friend, contacted the family directly. I do not accept that the Applicant's desire to 'support' the Former Student mitigates her conduct in contravening a lawful direction from her employer.

[100]
I am satisfied that the weight of the evidence supports a finding that the Applicant engaged in the conduct as alleged in Allegation Three.

[101]
I agree with the Respondent's determination that the Applicant's conduct in failing to follow a lawful direction by continuing to engage with the Former Student while the investigation process continued indicated that the Applicant was unable or unwilling to observe the Respondent's expectation of the Applicant as a teacher to ensure appropriate professional boundaries between a teacher and students, including former students.

Allegation Four: [The Applicant] provided misleading information in [her] interviews with the departmental investigators on 14 April 2016 and 17 October 2017.

[102]
Mr Coghlan determined that in interviews with departmental investigators on 14 April 2016 and on 17 October 2017, the Applicant falsely denied being involved in an intimate relationship with the Former Student and provided misleading information to the investigators.

[103]
Mr Coghlan outlined the following in the termination decision:

3.I am satisfied that the QCAT Decision records that you are in agreement that you engaged in an inappropriate, over-familiar and/or intimate relationship with recent former student [the Former Student] including:

3.1 introducing him as your boyfriend at the Christmas production at a church on 15 December 2015;

3.2 being publicly physically intimate with him at a New Year's Eve party at your home, including kissing each other on the lips on 31 December 2015;

3.3 taking him as your guest/partner to a Baptism at a church where you and him publicly held hands on 10 January 2016;

3.4 meeting him at a nightclub where you were physically intimate with him in public, including playing with each other's hair, kissing each other on the neck, kissing each other on the lips and dancing in close proximity on an unknown date around June 2016 and July 2016;

3.5 holding hands, hugging and kissing each other at the airport on 10 July 2016;

3.6 being physically intimate with him on unknown dates during late 2016 – early 2017.^[44]

[104]
The Applicant advised the investigators on 14 April 2016 that the Former Student was a 'family friend' and in response to questions as to whether there was currently or previously any relationship with the Former Student, the Applicant replied 'no'.^[45]

[105]
Mr Coghlan outlined the following in the termination decision:

7.As outlined under 'Reliance on QCAT Decision, admissions made by you, and the findings of QCAT', I am satisfied that I am able to rely upon the agreed conduct recorded in the QCAT Decision, and that on the balance of probabilities, during interviews with the departmental investigators on 17 October 2017, you provided misleading and incorrect information to the investigators including:

7.1 When the investigators asked you to tell them about the contact from former student [the Former Student], you stated "Just touching base with a phone call……to see how things were."

7.2 When the investigators asked you when the last time former student [the Former Student] phoned you was, you stated "Not recently, before [you] went away. Before [you] left the country [on 10 July 2016]."

7.3 When the investigators asked you whether there has been any contact since you returned from the UK/Europe Trip, you stated that "He showed up to [your] house a week after [you] arrived back from the UK."

7.4 When the investigators asked you what your relationship with former student [the Former Student] was you stated "Purely a platonic friendship."

7.5 When the investigators asked you how former student [the Former Student] knew when you were returning you stated that "He knew [your] travel dates……before [you] left"

7.6 When the investigators asked you whether there has at any stage been any sort of, intimate relationship, you stated "No."

7.7 When the investigators asked you what sort of thoughts you have had when you had the contact with former student [the Former Student] after you knew that you should not have any contact with him, you stated "Initially [you], [you] felt for him being kind of dragged through this whole situation. Like [you], [you] knew that he was going through, would be, would have been going through quite a crap time, especially with the friends and natural gossip that was coming out of the situation. And [you] knew from talking to him, that he wasn't coping and that touching base with him, it was like letting him know that, you know everything was going to be okay like, that we'll get the story straight, we’ll be able to talk and tell our views and let them know. So yeah it was just a matter of just being supportive and that friend, and letting him know that."^[46]

[106]
The Respondent did not accept the Applicant's assertion that she had honestly and co-operatively taken part in the Respondent's investigations. I agree with the Respondent's summary as outlined in the termination letter:

8.2 Your submissions of different versions of events to the QCAT and to the department and your assertion that you made admissions that you engaged in an intimate relationship with recent former student [the Former Student] "in good faith to shorten the proceedings, provide the parties with some certainty and minimise all parties’ legal costs” leads me to believe that you are capable of making false submissions and to seriously question your credibility.^[47]

[107]
The Applicant submits that her admissions made before QCAT should not be relied upon and that Mr Coghlan failed to take into account all evidence including the family history.

[108]
In my view, the Applicant's admissions to QCAT are able to be relied upon to substantiate this allegation. The Applicant admitted to the conduct before QCAT that was entirely inconsistent with the answers provided to the Respondent's investigators. The Applicant's admissions before QCAT are relevant to the Applicant's employment and are able to be relied upon by her employer to substantiate this allegation.

[109]
If I am wrong about the Respondent's ability to rely upon the Applicant's admissions made before QCAT, I consider that this allegation can be substantiated without that evidence. In answer to the investigator's question as to the last time the Former Student phoned the Applicant, the Applicant stated, 'not recently, before I went away. Before I left the country'.^[48] The Applicant was clearly trying to convey an impression that she had not had contact with the Former Student since she had left the country. An honest and fulsome answer would have included the contact between the Applicant and the Former Student whilst they were in London together. In my view, the Applicant's answer was intentionally evasive and designed to mislead the investigators into believing the Applicant had not spoken to the Former Student after she had left the country.

[110]
The explanation that the Applicant was 'under pressure' or 'had been through a lot' and so omitted significant details from her interview was unconvincing. I am not persuaded by the Applicant's submission that the failure to volunteer information was a consequence of the interview process, the questioning involved, or the 'guiding force applied by the investigators into what was being sought'.^[49]

[111]
The Applicant described her failure to tell the investigators that she had seen the Former Student in London as a 'sheer misjudgement on my behalf in the interview'.^[50] I do not accept that the omission was a misjudgement, rather, I consider it to be a calculated judgement that the investigators would not have known about the contact with the Former Student in London. The Applicant clearly omitted relevant information and failed to provide a full and complete account of her interactions with the Former Student when given the opportunity to do so.

[112]
The Applicant contends that the context of the comments made in response to the questioning is important and not reflected in the show cause notice, the termination letter nor in the briefing notes supporting each of those pieces of correspondence.^[51] The Applicant submits that when the comments are reviewed in that light, it is seen that she was consistent in her answers to the Respondent and has answered all questions openly and honestly. I have reviewed the interview transcripts, the show cause notice, the termination letter and the briefing notes and am not persuaded that the Applicant did answer all questions open and honestly for the reasons outlined above.

[113]
The evidence supports a finding that the Applicant provided misleading information in her interviews with the investigators and consequently, I am satisfied that Allegation Four can reasonably be substantiated.

[114]
In determining whether all four allegations have been proven without the benefit of the admissions before QCAT, I have applied the principle in Briginshaw and had regard to the seriousness of the alleged conduct and gravity of the consequences of each finding. The standard of evidence was such that I am persuaded that all four allegations are substantiated.

Did Allegations One, Two, Three and Four constitute a contravention of s 187 of the PS Act?

[115]
Following my determination that Allegations One, Two, Three and Four were proven on the balance of probabilities, consideration must now be given to whether the allegations constitute a contravention of s 187 of the PS Act.

Allegation One

[116]
The Respondent determined that the conduct substantiated in Allegation One forms the basis of a disciplinary finding that the Applicant has contravened, without reasonable excuse, a standard of conduct applying to the Applicant under an approved code of conduct under the Public Sector Ethics Act 1994 (Qld), namely the Code of Conduct, specifically cls 1.5 and 3.1 of the Code of Conduct:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

a.treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

b.ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment

c.ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients

d.ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and

e.comply with legislative and/or policy obligations to report employee criminal charges and convictions.

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

a.accept that the elected government has the right to determine policy and priorities

b.be responsive to the government of the day and implement decisions and policies professionally and impartially

c.comply with the laws of State, Australian and local governments

d.comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and

e.adhere to the policies, organisational values and organisational documents of our employing agency.

[117]
As outlined above, I am satisfied that the conduct subject of Allegation One (removing the conduct alleged in particular 5.3) contravened cls 1.5 and 3.1 of the Code of Conduct and pursuant to s 187(1)(f)(ii) of the PS Act and that the Applicant is liable to disciplinary action.

Allegations Two, Three and Four

[118]
The Respondent determined that the Applicant's conduct the subject of Allegations Two, Three and Four constituted misconduct pursuant to s 187 of the PS Act. Deputy President Merrell considered misconduct in the context of s 187 of the PS Act and the application of ss 316 and 320 of the IR Act in Coleman.

[119]
In Coleman, Deputy President Merrell stated:

Justice Daubney thought the observations of Kirby P in Pillai v Messiter (No 2) were instructive in construing 'misconduct' in s 10(a). In Pillai v Messiter (No 2), Kirby P, in addressing the meaning of the expression 'misconduct in a professional respect' in the Medical Practitioners Act 1938, said:

But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

Justice Daubney held that the decision of Kirby P assisted in the construction of 'misconduct' in the QAS Policy because:

the words 'disgraceful' and 'improper', while included in the definition in s 10(a) as alternatives, should not be regarded as wholly independent and each term should be read as giving colour to the other; and

the definition must be read in context in that 'misconduct' was listed as one form of 'unacceptable workplace behaviour' and which was expressly separated from other forms of sub-optimal workplace behaviour such as 'carelessness, incompetence or inefficiency'.

Justice Daubney went on to conclude:

[26] These two considerations compel the conclusion that 'misconduct,' as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct,' to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.

Section 187(4)(a) of the PS Act relevantly defines 'misconduct' as 'inappropriate or improper conduct in an official capacity.' However, s 187(1)(a) refers to the relevant employee performing '… the employee's duties carelessly, incompetently or inefficiently' as another disciplinary ground.

Because a public service employee's careless, incompetent or inefficient conduct is a separate disciplinary ground under s 187 of the PS Act, the analysis of Daubney J is of assistance in construing s 187(4)(a) of the PS Act.

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates 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.^[52]

[footnotes omitted; emphasis added]

[120]
I am satisfied that the Applicant's conduct was a deliberate departure from accepted standards and an abuse of the privilege and confidence enjoyed by a teacher employed in the public service. I am satisfied that the Applicant's conduct was inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act.

[121]
I am satisfied that the Applicant's conduct the subject of Allegation Two involved engaging in conduct with the Former Student which breached professional boundaries and was in direct contravention of the standards imposed on her.^[53] I note that the QCAT decision stated that the Applicant's conduct in relation to the Former Student was significantly serious as it germinated in the school context where he was known to the Applicant as a student and the Applicant was known to him as a teacher.^[54]

[122]
I am satisfied that the conduct in engaging in an over-familiar relationship with the Former Student reflects seriously and adversely on the Applicant as a teacher and falls well below the standard of behaviour generally expected of a teacher by the Respondent. Consequently, the Applicant is guilty of misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

[123]
The Applicant's conduct the subject of Allegation Three involved failing to follow a lawful direction by continuing to engage in an over-familiar relationship with the Former Student whilst the investigation process in the Applicant's conduct towards the Former Student was ongoing. This conduct indicates that the Applicant was unwilling to observe the employer's expectation and directions. The conduct also indicates that the Applicant was unwilling to comply with the requirements of her employment to follow a lawful and reasonable direction. Mr Coghlan identified such conduct, correctly in my view, as demonstrating 'a deliberate disregard of your obligations as a departmental employee and disrespect to the department' as the employer.^[55] I am satisfied that this conduct constituted misconduct pursuant to s 187(1)(b) because it involved conduct that was inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.

[124]
I have determined that the Applicant's conduct the subject of Allegation Four was substantiated in that the Applicant provided misleading information to the Respondent during the investigation process. If the admissions made by the Applicant before QCAT are accepted, which, in my view, they should be, this allegation extends to misleading information as to the true nature of the relationship with the Former Student. If the admissions made to QCAT are excluded, the allegation is still substantiated to the extent that the Applicant provided misleading information to the Respondent regarding her contact with the Former Student. Failure to participate in the investigation in an open and honest manner is a serious breach of the trust and confidence necessary in an employment relationship. The Applicant's conduct in not providing a truthful account of her interactions with the Former Student fell well below the standard of conduct and behaviour expected of a teacher and is a serious breach of the necessary trust and confidence that the Respondent must have in an employee. I am satisfied that the Applicant's conduct the subject of Allegation Four amounted to misconduct pursuant to s 187(1)(b) because it involved conduct that was inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a) of the PS Act.

Disciplinary action

[125]
Section 188(1) of the PS Act provides that 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, including termination of employment.

[126]
In response to the Applicant's submission that relying on the same events for multiple allegations is duplicitous, the Respondent submits the matters admitted by the Applicant are very serious and taking any of the Allegations Two, Three or Four in isolation may have warranted dismissal for misconduct. I am not of the view that the multiple allegations were, in fact, duplicitous. The same facts gave rise to a number of individual behaviours in Allegations Three and Four that were of a standard to be considered misconduct independently of the substantive matters in that they related to the Applicant's ability to follow the employer's direction and engage honestly with her employer.

Was the termination unfair pursuant to s 316 of the IR Act?

[127]
Section 316 of the IR Act provides that a termination will be unfair if it is harsh, unjust or unreasonable.

[128]
The Commission must consider the following when deciding whether a dismissal was harsh, unjust or unreasonable pursuant to s 320 of the IR Act:

(a)
whether the employee was notified of the reason for the dismissal;

(b)
whether the dismissal related to the operational requirements of the employer's undertaking, establishment or service or the employee's conduct, capacity, or performance;

(c)
if the dismissal related to the employee's conduct, capacity, or performance, whether the employee had been warned about the conduct, capacity, or performance or whether the employee was given an opportunity to respond to the claim about the conduct, capacity, or performance; and

(d)
any other matters the Commission considers relevant.

[129]
In accordance with s 320(a) of the IR Act, the Applicant was notified of the reason for dismissal. The Applicant was given an opportunity to respond to the allegations outlined in the show cause notice and did so via a response provided by her solicitors.^[56] The dismissal related to the Applicant's conduct and the Applicant had been spoken to on numerous occasions and was therefore warned about the conduct which formed the substantive basis for Allegations One and Two, and the conduct in respect of Allegations Three and Four was in breach of the expected behaviour for any employee.^[57]

[130]
The Respondent submits that from November 2013, the Applicant was repeatedly spoken with and counselled by senior staff members at the School about the appropriateness of her interactions with students and the importance of maintaining boundaries, including:

a.on 15 November 2013 about her conduct and appearance at a school formal;

b.on 30 July 2014 when she was advised not to be 'friends' with any students, including former students, on social media; and

c.on 14 September 2015 about her overfamiliarity with students and the standard of dress expected of her as a teacher.^[58]

[131]
The Applicant submits that even if all allegations are accepted as proven as alleged, termination of her employment is harsh on the basis that the Applicant:

a.was the subject of extended investigations by both the Respondent and the QCT; and

b.has already been the subject of a 3 year suspension; and

c.in fact was unable to teach for a period of four years prior to termination.^[59]

[132]
The Applicant contends that the termination of her employment is disproportionate considering the admitted conduct and the suspension period and, in such circumstances, termination was harsh.

[133]
I accept the Respondent's submissions that the fact that the Applicant is subject to both registration conditions via the QCT and employment conditions via her employer is an unavoidable consequence of the teaching profession. It is not unusual for professional organisations responsible for the registration of professionals to require professional employees to retain membership. It is common for such registration organisations to have the ability to sanction a member, in addition to any discipline that might be imposed by the professional's employer. The three year suspension ordered by QCAT was a suspension from registration as governed by QCT, not a suspension from the Applicant's position by her employer. The suspension by her employer was entirely due to the Applicant's own conduct which required investigation before much of the conduct was substantiated. The employer has a duty to ensure that the conduct of its teachers reflect their standards to ensure that appropriate boundaries are maintained between teachers, students and former students.

[134]
I also note that the conduct subject of Allegations Three and Four did not form part of the QCT considerations and these allegations related only to the Applicant's conduct with respect to her employer. If the Applicant had given an honest account of her interactions with the Former Student and followed the employer's direction to cease contact with him, an argument may have been sustained that a less severe penalty was warranted. The substantiation of these allegations in particular, however, demonstrates the loss of trust and confidence between the Respondent and the Applicant.

[135]
I am satisfied that termination of the Applicant's employment was not disproportionate or harsh in the circumstances.

[136]
The Applicant submits that she was consistent in her evidence that there was no intimate contact been herself and the Former Student and that there is no evidence outside of the agreed statement of facts recited in the QCAT decision which otherwise supports the allegations. The Applicant contends that if the Commission accepts the Applicant's evidence as the basis for agreeing to the statement of facts before QCAT, then the Applicant cannot be said to be guilty of misconduct and in such circumstances, the termination of the Applicant's employment was unjust. As noted previously, I do not accept the Applicant's evidence as to the basis for agreeing to the statement of facts before QCAT. It would seem entirely improbable that a teacher would agree that they had engaged in conduct that included kissing a recent former student on multiple occasions if that conduct had not, in fact, occurred.

[137]
As noted above, if the agreed statement of facts outlined in the QCAT decision is to be excluded, there is insufficient evidence to prove, on the balance of probabilities, that the Applicant and the Former Student were in an intimate relationship. Allegation Two, however, states that the Applicant engaged in an over-familiar and/or intimate relationship with the Former Student. As outlined above, I accept there is sufficient evidence to determine the Applicant engaged in an over-familiar relationship with the Former Student that commenced whilst he was still a student. The Applicant then continued the over-familiar relationship with the student following his graduation, had further contact with the Former Student in breach of the employer's lawful direction, and then misled the employer's investigators when asked about the contact between herself and the Former Student.

[138]
The Applicant was a teacher with five years' experience who had undergone annual training in matters relating to conduct and student protection. I note the Respondent's submission that the 'family friend' status of the student was one specifically identified in documents provided to teachers to prepare them to manage their relationships with students.^[60] The Applicant described a meeting with the School Principal in September 2015 about her interactions with male students as a 'wakeup call'.^[61] By September 2015, the Applicant had been a teacher for over five years and so could reasonably be expected to comprehend the standard of conduct required.

[139]
Despite having been spoken to on multiple occasions about her conduct around students, the Applicant showed no ability or desire to alter her behaviour. Termination of employment may be considered unjust in circumstances where an employee has not been afforded an opportunity to address the behaviour of concern, however the evidence in this matter suggests that the Applicant was given every opportunity to address her behaviour but display an unwillingness to do so.

[140]
The Applicant made submissions that the nature of the family relationship with the Former Student and his family had not been properly considered. I am not persuaded that the 'family relationship' was of such a nature so as to explain the Applicant's conduct with the Former Student. The description was of a relationship based on the Former Student's mother having taught the Applicant when she was in grade one, the Applicant's sister attending the Former Student's mother's dance school some years earlier and previous contact between the parents and grandparents through a school P&C Association. There was no evidence of regular social contact between the families and I accept the Respondent's submission that this relationship is likely to have been overstated as the grandparents being family friends appears for the first time at the hearing of this matter.

[141]
The Applicant gave evidence describing the relationship as more like acquaintances or loose family friends and gave evidence that she had not been to the Former Student's family home prior to December 2015.^[62] Whilst the Former Student may have been known to the Applicant, there is no evidence that the relationship between the Applicant and the Former Student was anything resembling family friends in the sense that no regular social contact was had between the Applicant and the Former Student or his family. I am not persuaded that the 'family friend' characterisation is entirely accurate, however more importantly I do not consider that any such relationship mitigates the conduct of the Applicant. Teachers regularly know the families of students in their school community and yet maintain professional boundaries as they are trained to do.

[142]
I am satisfied that the termination of the Applicant's employment was not unjust.

[143]
The Applicant submits that it was unreasonable for Mr Coghlan to make determinations substantiating the allegations such as to truncate the disciplinary process, noting the current Public Service Commission Discipline Directive 14/20 which was not in force at the time of the decision, now requires that process only be truncated where the evidence is unlikely to be in dispute and truncation is in the best interest of the employee.

[144]
The Respondent submits that there is no evidence that a non-truncated process would have resulted in anything other than further denials from the Applicant, or that Mr Coghlan would have made any other decision in relation to the outcome of the disciplinary process.

[145]
Mr Coghlan gave the following evidence:

The decision to truncate is because the admissions had been made that the information has been admitted to in that decision and that would necessarily not serve any purpose in going back and – and it provides the same purpose, I guess. The – the admissions have been made. There's an opportunity for natural justice and procedural fairness to give Ms Kemp an opportunity to respond to the allegations and consider the discipline penalty being imposed.^[63]

[146]
The Applicant has not identified any prejudice suffered by the use of a truncated process. I am satisfied that the Respondent reasonably considered that the admissions made by the Applicant before QCAT which appeared on the public record could be relied upon. I accept that natural justice was afforded to the Applicant in that an opportunity was provided to show cause why disciplinary findings should not be made and why the proposed disciplinary action should not be taken.

[147]
The Applicant submits that the simple reliance on the admissions made in the de-identified reasons for decision of QCAT is indicative of the lack of understanding of the QCAT process, the conclusions which might be drawn in the circumstances, and the legal ability to rely on an agreed statement of facts. The Applicant cites Pharmacy Board of Australia v Coghill^[64] in support of this proposition. I am not persuaded that this reference assists the Applicant. In Pharmacy Board of Australia v Coghill, QCAT considered the observations in Medical Board of Australia v Martin^[65] as to whether the Tribunal ought to depart from a proposed sanction agreed between the parties unless it falls outside the permissible range of sanction for the conduct. The sanction in that matter related to aspects of the employee's professional registration as a pharmacist. In this matter, the Applicant's sanction from QCAT related to her professional registration as a teacher. It is not the case, in my view, that an agreed sanction between the parties will then exclude an employer from taking any further action on the matters subject to the QCAT proceedings. A practitioner's responsibilities to a professional regulatory body are not the same as an employee's responsibilities to their employer. Whilst failure to secure registration as a teacher with QCT will prevent a person from working as a teacher, the fact that a person is registered as a teacher with QCT will not guarantee continued employment as a teacher for the State of Queensland if their conduct is contrary to the PS Act. There are, of course, other employers in the education sector for whom a registered teacher can be employed that are not subject to the requirements of the PS Act.

[148]
Deputy President Merrell considered this issue in Coleman and stated:

A decision by the QCT about a teacher's conduct involves different considerations to a decision of an employer to dismiss a teacher from employment. The former is about whether the teacher meets and continues to meet the requirements for registration or permission to teach to persons. The latter is about whether such a person, who meets the requirements for registration or permission to teach to persons, should continue to be employed having regard to, amongst other things, the conditions imposed by the employer or agreed to between the teacher and the employer, about the standards of conduct to be observed by the teacher.^[66]

[149]
The Applicant submits that the decision to terminate her employment was unreasonable due to the de-identified nature of the QCAT decision. The Applicant did not dispute that she was the subject party in the QCAT decision. In my view, it would be clear to anyone familiar with the matter that the Applicant is the party referred to by her initials, CMK, and the conduct complained of by the QCT relates to the Applicant and the Former Student. Mr Coghlan gave evidence under cross-examination with respect to a statement that the decision does not identify the Applicant:

Well, it was very clear that – to the people in the Integrity and Employee Relations team that it did, and this has not been disputed.^[67]

[150]
I am satisfied that the evidence supports a finding that the QCAT decision refers to the Applicant and her relationship with the Former Student.

[151]
I do not accept the Applicant's submission that Mr Coghlan has put the existence of an agreed statement of facts before QCAT as being evidence accepted on the criminal standard, beyond a reasonable doubt, and not open to question. There is no evidence that a different standard was applied, rather, the decision reflects Mr Coghlan's acceptance of the Applicant's admissions as an accurate reflection of the Applicant's conduct. This was not an unreasonable position to take, and after hearing all of the evidence, I have also formed the view that the allegations are substantiated on the balance of probabilities.

[152]
The Applicant submits that it is to be inferred the record of interview transcripts were not before Mr Coghlan either at the time of issue of the show cause notice or the termination letter as when questioned during cross-examination, Mr Coghlan did not recall reading the transcripts. Mr Coghlan's evidence was not that he did not read the transcripts, only that he could not recall whether he did. I have read the transcripts and am of the view that the context referred by the Applicant does not alter the meaning from the excerpts extracted in the termination letter.

[153]
The Applicant submits that Mr Coghlan failed to take into account the period of suspension of the Applicant's teacher registration by QCAT, the psychologist's report into the Applicant required by QCAT, and the re-registration of the Applicant by QCT for the period 2020 to 2025.

[154]
The determination of QCAT to impose a period of suspension is not a significant mitigating factor. The decision of QCAT related to the contravention of the Applicant's professional obligations as a registered teacher, however the allegations leading to the Applicant's termination related to her obligations as an employee of the Respondent. The Respondent played no role in negotiating any proposed penalty before QCAT and did not agree to forego its right to take disciplinary action. Whilst the Applicant's three year suspension was not insignificant, it reflected mitigating factors such as the Applicant's honest admissions and remorse for the admitted conduct in those proceedings. The Respondent was not afforded honest admissions or evidence of remorse by the Applicant. Allegations Three and Four, which were not part of the QCAT process, go to the heart of the employment relationship requiring trust and confidence. Allegations Three and Four did not form part of the statement of facts agreed to by the QCT as part of the agreed penalty. The content of the psychologist's report does not address the conduct subject of Allegations Three and Four. The decision by QCT to re-register the Applicant is a matter for that body, and that decision will have been informed by considerations of a regulating body rather than an employer. The sanctions imposed by QCAT and requirements imposed by the QCT do not address the seriousness of the Applicant's conduct as an employee of the Respondent.

[155]
The Applicant submits that Mr Coghlan did not consider how QCAT conducted their processes when he relied upon the QCAT decision. It is unclear how consideration of the process before QCAT would have altered the outcome, with the penalty ordered by QCAT being ordered on the basis that:^[68]

[3] The parties are in agreement that the CMK engaged in the following conduct, that the conduct fell below the standard of behaviour expected of a teacher and that a ground for disciplinary action is therefore established under section 92(1)(h) of the Act.

[emphasis added]

[156]
I again note that where the parties were not in agreement, as with the date of the dinner at the Applicant's house, the discrepancy between the parties was noted. I do not accept that the Applicant would take issue over an issue such as the date but concede that she had an intimate relationship with the Former Student as indicated by the admitted conduct unless the conduct had, in fact, occurred.

[157]
I agree with the following comments outlined in the termination letter:

As an employee of the department, particularly occupying a role as a Teacher, you held and hold a special and privileged position of trust, and influence, both within the department and the community at large. Teachers can have a significant impact on the lives of students, and there is a community expectation that teachers will ensure their interactions with students are professional at all times, and that appropriate boundaries are maintained between students and teachers.

…

School students in the department's care are at a sensitive and impressionable age, experiencing various changes and challenges as they grow and develop through their teenage years. Consequently, a Teacher's impact and effect on their students is not limited to the subject matter taught, but extends to the Teacher's behaviour, conduct and attitudes, both inside and outside the classroom…^[69]

[158]
It was reasonable for the Respondent to determine that the conduct caused them to lose trust and confidence in the Applicant's ability to perform her duties to the standard expected of a teacher. Given the lack of insight or contrition displayed by the Applicant through the process, I am satisfied that a lesser penalty was not appropriate and that the termination was not unreasonable.

Non-publication order

[159]
The Applicant referred to a non-publication order included in the QCAT decision and submits that a similar order should be made by the Commission in this matter. The Applicant submits the Commission should make a non-publication order under its general powers pursuant to s 451(2)(c) of the IR Act.

[160]
Section 451(1) and (2) of the IR Act states:

451 General powers

(1)
The commission has the power to do all things necessary or convenient to be done for the performance of its functions.

(2)
Without limiting subsection (1), the commission in proceedings may—

(a)
give directions about the hearing of a matter; or

(b)
make a decision it considers appropriate, irrespective of the relief sought by a party; or

…

[161]
Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) provides the Commission with a power to de-identify judgments and redact information from judgments if there is good reason to do so:

97 Publishing decisions etc.

(1)
The registrar may publish on the QIRC website—

(a)
a decision of the court, commission or registrar; and

(b)
notice of the making or amendment of a bargaining instrument.

(2)
The registrar must, if the commission directs, publish an amendment of a bargaining instrument on the QIRC website.

Note—

For other documents the registrar must publish on the QIRC website, see sections 160, 161, 215, 230 and 459 of the Act.

(3)
The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate—

(a)
withhold publication of a document; or

(b)
modify a document, before publication, in a way that does not affect the essence of the document.

[162]
Section 580(5) of the IR Act provides that the Commission may direct:

(a)
a report, or part of a report, of proceedings in an industrial cause not be published; or

(b)
evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

[163]
Section 580(6) of the IR Act provides that the Commission may make such a direction absolutely or on conditions. Section 580(7) of the IR Act provides that the direction may be given if the Commission considers:

(a)
disclosure of the matter would not be in the public interest; or

(b)
persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

[164]
Vice-President O'Connor considered an application for workers to be de-identified in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd^[70]and held:

[40] The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.

[41] The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.

[42] However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.

[43] The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power…

[44] It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.

[165]
The Respondent agreed that the identity of the Former Student and the School should be protected as neither are directly material to the decision, however the Respondent submits that it is otherwise in the public interest to publish all other details of the matter given the primacy given to the principle of open justice.

[166]
In the matter of J v L & A Services Pty Ltd (No 2),^[71] the Queensland Court of Appeal outlined the six principles governing the exercise of the discretion to make suppression orders:

Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.

The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…

The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

(a)
Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…

(b)
A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c)
An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…

[citations omitted]

[167]
I am not persuaded that there are any circumstances as outlined in J v L & A Services Pty Ltd (No 2) which justify the suppression of the Applicant's name in this matter. I note that in the case of Coleman, which is similar in nature to these proceedings, both the name of the school and the applicant's name were published in the decision. I accept the Respondent's submission that the likelihood that the Former Student will be identified as a consequence of the publication of the Applicant's name is very low, with the events occurring several years ago and the Former Student finishing school in 2015.

[168]
The only basis upon which non-publication was sought was because of the potential identification of the Former Student and, on the basis that this risk is low, I consider there to be no other grounds upon which non-publication can be ordered in this matter. The application to withhold the Applicant's name from publication is, therefore, dismissed.

[169]
In my view, it would not be in the public interest for information to be published which would allow the Former Student referred to in this matter to be identified as they are not directly material to the decision. Consequently, I am of the view that the identity of the Former Student and the School be de-identified pursuant to s 451(2)(c) of the IR Act. The Former Student and the School are also named throughout documents filed and exhibits and so should be withheld from release or search.

Conclusion

[170]
The Applicant was interviewed twice as part of two investigations into her conduct and was given an opportunity to respond to allegations having been legally represented from an early stage in the process. The Applicant was afforded procedural fairness throughout the process.

[171]
It was open to the Respondent to rely upon the admissions made by the Applicant before QCAT, however even without the benefit of those admissions I am of the view that the allegations were able to be substantiated on the available evidence. The disciplinary findings were fair and reasonable, and the disciplinary action was not harsh, unjust or unreasonable.

[172]
I note the observation of O'Connor DP in White v State of Queensland (Central Queensland Hospital and Health Service)^[72] at [56], citing Stark v P&O Resorts (Heron Island) at 916:^[73]

An employer who undertakes a full and extensive investigation; gives the employee a reasonable opportunity to respond to allegations; and makes an honest decision that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, be held immune from interference by the Commission…

[173]
In consideration of all the evidence, the Respondent has discharged its onus to prove the Applicant's misconduct occurred as alleged. The Applicant has not discharged its onus to prove that the dismissal was unfair.

Orders

[174]
I make the following orders:

The Application is dismissed.

Pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld), that any reference to the School and the Former Student, the subject to these proceedings, is de-identified.

Pursuant to s 580(5) of the Industrial Relations Act 2016 (Qld), I direct that all documents and exhibits in this matter be withheld from release or search.

Footnotes

[1] In accordance with [159]-[169] of these reasons, the relevant school and student has been de-identified pursuant to s 451(2)(c) of the Industrial Relations Act 2016 (Qld) ('IR Act').

[2] Respondent's Closing Submissions, filed 7 May 2021, [33] ('Respondent's Closing Submissions').

[3] Exhibit 7.

[4] Exhibit 1, Tab 4.

[5] [2019] QCAT 271 ('the QCAT decision').

[6] Exhibit 1, Tab 5.

[7] QCAT issued a non-publication order in relation to the identities of the Applicant, the School and the students, however the decision became publicly available upon being posted to the Supreme Court library website.

[8] Laegal v Scenic Rim Regional Council [2018] QIRC 136.

[9] [2020] QIRC 032 ('Coleman').

[10] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, [259] (Hall P).

[11] Ibid.

[12] [1938] HCA 34.

[13] Noting that s 187 of the PS Act has been amended as a result of s 39 of the Public Service and Other Legislation Amendment Act 2020 (Qld).

[14] The QCAT Decision (n 5) [5].

[15] Exhibit 1, Tab 5.

[16] Section 85(1) of the QCT Act provides that a person must not give relevant information to the college that the person knows is false or misleading in a material particular.

[17] T 1-35, ll 18-38.

[18] T 1-10.

[19] T 1-37, ll 1-10.

[20] T 1-36, ll 36-40.

[21] Respondent's Closing Submissions (n 2) [111]; Exhibit 1, Tab 5 at [5] (show cause notice); Exhibit 1, Tab 8 at [1.9] (termination decision); the QCAT Decision (n 5) [6].

[22] citing Hayes v State of Queensland (Queensland Health) [2020] QIRC 234, [18].

[23] Exhibit 1, Tab 4.

[24] T 1-10, ll 25-37.

[25] T 1-10, l 39 to T 1-11, l 5.

[26] T 1-11, ll 22-43.

[27] T 1-11, l 45 to T 1-12, l 13.

[28] T 1-12, ll 15-37.

[29] T 1-12, l 39 to T 1-13, l 10 and ll 24-34.

[30] T 1-13, ll 36-42.

[31] Exhibit 2.

[32] Star Wars: Episode VII – The Force Awakens was released in Australia on 17 December 2015.

[33] Exhibit 1, Tab 15.

[34] T 1-46, ll 40-44.

[35] T 1-47, ll 9-14.

[36] T 1-48, ll 35-39.

[37] T 1-49, ll 1-20.

[38] Exhibit 1, Tab 8.

[39] T 1-13, l 44 to T 1-14, l 13 and T 1-37, l 45 to T 1-38, l 15.

[40] T 1-14, ll 15-24 and T 1-41, ll 26-44.

[41] T 1-12, ll 15-37 and T 1-42, ll 9-43.

[42] T 1-12, l 39 to T 1-13, l 22 and T 1-43, ll 13-43.

[43] T 2-25, ll 37-42.

[44] Exhibit 1, Tab 8.

[45] Exhibit 1, Tab 11.

[46] Exhibit 1, Tab 8.

[47] Ibid.

[48] Exhibit 1, Tab 20; T 1-50, ll 9-17.

[49] Applicant's Closing Submissions in Reply, filed on 20 May 2021, [5].

[50] T 1-52, l 10.

[51] Exhibit 1, Tabs 4, 5, 7 and 8.

[52] Coleman (n 9) [57]-[62].

[53] Ibid [182].

[54] The QCAT Decision (n 5) [34].

[55] Exhibit 1, Tab 8.

[56] IR Act s 320(c)(ii).

[57] Ibid s 320(c)(i).

[58] Respondent's Closing Submissions (n 2) [11]; Exhibit 3.

[59] Applicant's Closing Submissions, filed on 7 April 2021, [58].

[60] Exhibit 1, Tabs 43, 45 and 46.

[61] T 1-26, ll 4-16.

[62] T 1-8, l 36; T 1-31, l 4; Exhibit 1, Tabs 11 and 43.

[63] T 2-18, ll 33-39.

[64] [2015] QCAT 27, [29].

[65] [2013] QCAT 376.

[66] Coleman (n 9) [337].

[67] T 2-18, ll 42-43.

[68] The QCAT Decision (n 5) [3]-[4]; [18]-[23].

[69] Exhibit 1, Tab 8.

[70] [2021] QIRC 263.

[71] [1995] 2 Qd R 10.

[72] [2017] QIRC 041.

[73] (1993) 144 QGIG 914.

Editorial Notes

Published Case Name:
Kemp v State of Queensland (Department of Education)
Shortened Case Name:
Kemp v State of Queensland (Department of Education)
MNC:
[2022] QIRC 164
Court:
QIRC
Judge(s):
Power IC
Date:
19 May 2022

Appeal Status

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

Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd	[2021] QIRC 263	2 citations Jump To Cite 1 - [2021] QIRC 263 Cite 2 - [2021] QIRC 263
Briginshaw v Briginshaw	View on:JADE(1938) HCA 34	2 citations Jump To Cite 1 - (1938) HCA 34 Cite 2 - (1938) HCA 34
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
Gold Coast Health District v Walker	(2001) 168 QGIG 258	2 citations Jump To Cite 1 - (2001) 168 QGIG 258 Cite 2 - (2001) 168 QGIG 258
Hayes v State of Queensland (Queensland Health)	[2020] QIRC 234	2 citations Jump To Cite 1 - [2020] QIRC 234 Cite 2 - [2020] QIRC 234
J v L & A Services Pty Ltd	[1995] 2 Qd R 10; [1993] QCA 12	2 citations Jump To Cite 1 - [1995] 2 Qd R 10 Cite 2 - [1995] 2 Qd R 10
Laegal v Scenic Rim Regional Council	[2018] QIRC 136	2 citations Jump To Cite 1 - [2018] QIRC 136 Cite 2 - [2018] QIRC 136
Medical Board of Australia v Martin	[2013] QCAT 376	2 citations Jump To Cite 1 - [2013] QCAT 376 Cite 2 - [2013] QCAT 376
Pharmacy Board of Australia v Coghill	[2015] QCAT 27	2 citations Jump To Cite 1 - [2015] QCAT 27 Cite 2 - [2015] QCAT 27
Queensland College of Teachers v CMK	[2019] QCAT 271	2 citations Jump To Cite 1 - [2019] QCAT 271 Cite 2 - [2019] QCAT 271
Stark v P&O Resorts (Heron Island)	(1993) 144 QGIG 914	2 citations Jump To Cite 1 - (1993) 144 QGIG 914 Cite 2 - (1993) 144 QGIG 914
White v Queensland	[2017] QIRC 41	2 citations Jump To Cite 1 - [2017] QIRC 41 Cite 2 - [2017] QIRC 41

Cases Citing List of cases on Queensland Judgments citing this Judgment

Case Name	Full Citation	Frequency
Leigh v State of Queensland (Department of Education)	[2025] QIRC 23	3 citations
Patterson v State of Queensland (Queensland Corrective Services)	[2024] QIRC 193	2 citations
Wearne v State of Queensland (Department of Education)	[2025] QIRC 87	2 citations

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Kemp v State of Queensland (Department of Education)[2022] QIRC 164