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  4. McKenzie v State of Queensland (Department of Environment and Science) - [2022] QIRC 234

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McKenzie v State of Queensland (Department of Environment and Science)[2022] QIRC 234

McKenzie v State of Queensland (Department of Environment and Science)[2022] QIRC 234

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McKenzie v State of Queensland (Department of Environment and Science) [2022] QIRC 234

PARTIES:

McKenzie, Ben

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO.:

PSA/2021/280

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

21 June 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – allegations substantiated – consideration of penalty – penalty imposed was fair and reasonable.

LEGISLATION:

Anti-Discrimination Act 1991 (Qld)

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

Industrial Relations (Tribunal) Rules 2011 (Qld), r 97

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

Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld)

Waste Reduction and Recycling Act 2011 (Qld)

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Mr Ben McKenzie ('the Appellant') was employed as a PO4.4, Team Leader with the State of Queensland (Department of Environment and Science) ('the Respondent').
  1. [2]
    By letter dated 19 July 2021, the Respondent informed the Appellant of the decision to impose the following disciplinary penalties, pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act'):
  1. (a)
    a remuneration reduction from PO4.4 to PO4.3;[1]
  2. (b)
    a Performance Development Plan ('PDP') to be commenced with regular reviews (three months for a two year period);
  3. (c)
    code of conduct online training; and
  4. (d)
    appropriate workplace behaviour training.

(collectively, 'the penalties')

  1. [3]
    By appeal notice filed in the Industrial Registry, the Appellant appealed against the decision, pursuant to s 194(1)(b)(i) of the PS Act.
  1. [4]
    On 2 September 2021, the Respondent filed an application in existing proceedings seeking for the deidentification of the complainant and other parties involved in this matter, other than the Appellant and the Respondent due to safety concerns. The Appellant did not oppose to this request.
  1. [5]
    On the basis that the material before me contains information that may cause detriment, and the identity of the complainant and other parties are not directly material, I grant the deidentification request sought by the Respondent, pursuant to r 97 of the Industrial Relations (Tribunal) Rules 2011 (Qld).

Appeal principles

  1. [6]
    The appeal must be decided by reviewing the decision appealed against.[2] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [7]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for determination is whether the decision to impose the penalties was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [8]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Background – substantiation of allegation

  1. [9]
    On 7 April 2021, an employee grievance with respect to the Appellant's behaviour towards the employee ('the complainant') during an online call was escalated to Workforce Relations and Integrity for assessment.
  1. [10]
    On 19 April 2021, the Appellant was advised of the allegations made against him through an Opportunity to Respond letter and was provided seven days to respond. On 27 April 2021, the Appellant provided a response to the Opportunity to Respond letter.
  1. [11]
    The delegate assigned to the matter subsequently decided to commence a disciplinary process and on 18 May 2021, a First Notice to Show Cause was provided to the Appellant, outlining the following allegations:

Allegation one

On Thursday 1 April 2021 at approximately 1:46pm during a Microsoft Teams call with [the complainant] you used inappropriate behaviour and language regarding [the complainant].

Allegation two

On Thursday 1 April 2021 at approximately 1:46pm during a Microsoft Teams call with [the complainant], you used inappropriate behaviour and language when describing [the other individual].

  1. [12]
    On 31 May 2021, the Appellant provided a response to the First Notice to Show Cause and on 14 June 2021, the Respondent issued a Second Notice to Show Cause, substantiating both allegations one and two and provided seven days for the Appellant to provide a response as to why the following disciplinary penalties should not be imposed:
  • Reducing your remuneration level from PO4.4 to PO4.2, which will result in a two-year remuneration reduction; and
  • Management action:
    • A performance development plan (PDP) to be commenced with regular reviews (every 3 months for the 2 year period) including a performance objective regarding appropriate behaviour in the workplace;
    • Online code of conduct online training; and
    • Appropriate workplace behaviour training (next available session).
  1. [13]
    The Appellant subsequently provided a response to the Second Notice to Show Cause on 2 July 2021. On 21 July 2021, a disciplinary penalty decision letter dated 19 July 2021 was issued to the Appellant imposing the penalties as outlined above however with a lesser reduction in remuneration level from PO4.4 to PO4.3.

Grounds of Appeal

  1. [14]
    In the appeal notice the Appellant outlined the following reasons for appeal:

I believe the proposed penalties to be overly excessive and disproportionate to the alleged offence.

Consequently, I request this matter be reconsidered.

The basis being:

This is a first-time offence.

The alleged offence(s) were isolated, and not ongoing.

The alleged indiscretion was an inadvertent act, there was no malice involved, nor did I benefit in any way as a result of my alleged actions.

I have cooperated with the investigation to the fullest extent possible.

I have expressed remorse over the alleged incident, & have committed to ensuring the alleged act is not repeated.

…

  1. [15]
    The Appellant made comparisons with financial penalties imposed for contraventions under the Transport Operations (Road Use Management—Road Rules) Regulation 2009 (Qld) and the Waste Reduction and Recycling Act 2011 (Qld) against the financial penalty imposed as a result of the remuneration reduction and contends that the financial penalty is manifestly excessive.
  1. [16]
    The Appellant outlines that where a penalty is required to be imposed, that an alternative penalty be imposed, being:
  1. (a)
    a formal warning;
  2. (b)
    online code of conduct training; and
  3. (c)
    appropriate workplace behaviour training.

Submissions

  1. [17]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [18]
    The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that:
  1. (a)
    the Appellant has failed to provide any new information with respect to the discipline allegations or the Appellant's responses throughout the process;
  2. (b)
    the Appellant has admitted through his responses on several occasions that he has a history of inappropriate behaviour and often does not filter his conversations;
  3. (c)
    the Appellant's manager has discussed with the Appellant appropriate workplace discussions on 3 April 2020, 11 November 2020, 7 January 2021 and 3 February 2021;
  4. (d)
    the Respondent rejects the Appellant's assertions that his culpability is diminished because he believes he was being complimentary and not offensive;
  5. (e)
    it is reasonable for the Respondent to expect a long-standing employee and supervisor to understand and behave appropriately whilst at work in accordance with the Queensland Public Service Code of Conduct ('the Code of Conduct') and departmental policies, namely the Workplace Behaviour Policy;
  6. (f)
    in making the disciplinary penalty decision, the delegate considered all matters raised by the Appellant and as a result, reduced the original proposed penalty to a lesser penalty;
  7. (g)
    the penalty is reasonable and appropriate given the behaviour and conduct the Appellant exhibited, as well as admissions made; and
  8. (h)
    the Appellant's proposed alternative penalty is not considered an appropriate or measured penalty and continues to reflect a failure to take responsibility for his actions and the impact on the individuals involved.

Appellant's submissions

  1. [19]
    The Appellant, in accordance with the Directions Order, filed submissions in response to the Respondent's submissions. In summary, the Appellant submits that:
  1. (a)
    the Respondent appears to be making an example of the Appellant and does not appear to believe that the Appellant is genuinely remorseful if the alleged actions were considered inappropriate;
  2. (b)
    the Appellant has been cooperative in this matter and could have simply denied all allegations;
  3. (c)
    the apparently aggressive nature to include emails that are unrelated to this matter would appear to be an attempt to portray the Appellant in a poor light. The Appellant believes that it serves to demonstrate the vindicative nature the Respondent has chosen to deal with this matter;
  4. (d)
    the Appellant refutes that he has a history of inappropriate behaviour and often does not filter his conversations well. Whilst the Respondent highlighted that the Appellant has acknowledged that he does not filter his conversations, the Respondent does not indicate that the Appellant's behaviour to be inappropriate. The Appellant submits that this suggests the Respondent is resorting to 'muck raking' in an attempt to justify its position in this matter;
  5. (e)
    the Appellant acknowledges that he failed to contact his manager when he was not in a fit state for work. However, the Respondent appears to have failed to acknowledge that the Appellant had disclosed diagnosed mental health and relationship related issues regarding his unplanned absences and has now chosen to use it as a basis for its grossly disproportionate approach to this matter;
  6. (f)
    it is unclear to the Appellant as to why the Respondent chose to include emails which were a case of miscommunication with the Appellant's manager;
  7. (g)
    the Respondent appears to have resorted to the use of misinformation to discredit the Appellant and justify its excessive use of penalties; and
  8. (h)
    the Respondent's suggestion that the Appellant has not been respectful in his recollection of events to be considerably disturbing and unfounded.

Respondent's submissions in reply

  1. [20]
    The Respondent, in accordance with the Directions Order, filed submissions in reply to the Appellant's submissions. In summary, the Respondent submits that:
  1. (a)
    the Appellant has admitted in his response to the delegate dated 27 April 2021, that he was 'not in a position to refute the allegations' and 'not questioning [the complainant's] recollection of events'. This in itself is sufficient for the delegate to substantiate the allegations and propose a disciplinary penalty;
  2. (b)
    email correspondence was included in the Respondent's initial submissions to display a history of inappropriate behaviour in the workplace, which had led to several conversations with the Appellant and his manager about his behaviour in the workplace;
  3. (c)
    in the Appellant's response to the Opportunity to Respond letter, he states, 'If, as has been alleged, my behaviour was inappropriate, I deeply regret my actions' and 'not in a position to refute the allegations' suggests that the Appellant understood his behaviour was inappropriate; and
  4. (d)
    all correspondence to the Appellant has indicated that the delegate viewed his behaviour as inappropriate. Whether he accepts his own behaviour was inappropriate is immaterial.

Consideration

  1. [21]
    Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(g) of the PS Act.
  1. [22]
    The disciplinary finding was based upon the substantiation of two allegations as outlined in [11]. The 'inappropriate behaviour and language' involving the Appellant was specified as follows:
  1. On Thursday 1 April 2021 at approximately 1:46pm you called [the complainant] and mentioned on at least three occasions that you have 'noticed' [the complainant] in the lifts at work and described her as 'smoking hot'.
  2. On Thursday 1 April at approximately 1:46pm, during the Microsoft Teams call with [the complainant], you used words to the effect of 'any warm blooded man would be crazy not to notice you'.
  3. On Thursday 1 April at approximately 1:46pm, during the Microsoft Teams call with [the complainant], you referred to [the other individual] as 'smoking hot'.[6]
  1. [23]
    In the grounds of appeal the Appellant describes the conduct as 'alleged' in a number of different contexts. The Appellant stated in his response to the show cause notice that he did not deny the allegations. It was reasonable for the Respondent to determine that the conduct occurred as alleged based upon the Appellant's responses along with the evidence of the complainant.
  1. [24]
    In any event, this appeal is against the disciplinary action and not the disciplinary finding and consequently, the disciplinary finding remains undisturbed.
  1. [25]
    The Respondent determined that the conduct constituted a contravention of s 187(1)(g) of the PS Act, which provides:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [26]
    The Respondent determined that the Appellant's conduct contravened cl 1.5 of the Code of Conduct, which provides:

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:

…

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

  1. [27]
    The decision maker provided the Appellant with an opportunity to respond to the following proposed disciplinary action:
  • Reducing your remuneration level from PO4.4 to PO4.2, which will result in a two-year remuneration reduction; and
  • Management action:
    • A performance development plan (PDP) to be commenced with regular reviews (every 3 months for the 2 year period) including a performance objective regarding appropriate behaviour in the workplace;
    • Online code of conduct online training; and
    • Appropriate workplace behaviour training (next available session).

[emphasis added]

  1. [28]
    After consideration of the Appellant's response, the disciplinary action imposed was the following:
  • A remuneration reduction from PO4.4 to PO4.3, which will reduce your income for one year. This will result in a total loss of $2,348.
  • A performance development plan (PDP) to be commenced with regular reviews (every 3 months for the 2-year period) and including a specific item about appropriate behaviour in the workplace: …
  • Code of conduct online training (last completed 15 March 2020); and
  • Appropriate workplace behaviour training (next available session).

[emphasis added]

  1. [29]
    The Appellant appeals the disciplinary decision on the grounds that the penalties are excessive and disproportionate to the conduct. The Appellant submits that the conduct was a 'first-time offence', was an isolated occurrence, was inadvertent and was done without malice.
  1. [30]
    Although the specific conduct might be an isolated occurrence as submitted by the Appellant, it is of such a nature that the decision to impose disciplinary action was not unreasonable. A single incident of sexual harassment may constitute a breach of the Code of Conduct. There is no reason not to accept the Appellant's submission that the conduct was done without malice, however this is entirely beside the point. Sexual harassment of the kind involved in this matter is often done without malice, with those engaging in such conduct often doing so in a misguided belief that they are complimenting the subject. The adverse impact of this behaviour on the workplace can often be profound, both on the culture of the workplace and on the individual subjected to such conduct. The fact that the complainant felt compelled to write a complaint about the conduct provides some insight into how the conduct made that person feel. The Appellant's submission that he did not 'benefit' from the conduct is also not a relevant consideration in determining the disciplinary penalty in this matter.
  1. [31]
    The disciplinary action is primarily directed at managing the Appellant's conduct such that he can ensure that this type of behaviour does not occur again. It is important that the Appellant understand that his intentions, maliciousness or otherwise, are not relevant considerations in this context. The imposition of a financial penalty through a one year reduction in increment reflects the seriousness of such conduct in the workplace.
  1. [32]
    The Appellant outlined in the grounds of appeal that he cooperated with the investigation to the fullest extent possible, expressed remorse and committed to ensuring the conduct was not repeated. These factors reflect well upon the Appellant, however it was open to the Respondent to impose disciplinary action to address the behaviour. I note that the proposed penalty of a two year reduction in increment was reduced to one year, which, in my view, is more appropriate given the Appellant's cooperation and admissions.
  1. [33]
    The Appellant submits that when compared with financial penalties for contraventions of other statutory instruments,[7] the financial penalty is manifestly excessive. The appropriateness of any penalty under the PS Act is determined by considerations which include the impact of the conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector. It is also informed by consideration of the particular facts giving rise to the disciplinary finding. This consideration does not lend itself to a direct comparison with provisions of unrelated statutory instruments.
  1. [34]
    I note the Appellant's submissions that the Respondent's inclusion of emails between the Appellant and his managers was inappropriate and an attempt to discredit him. It is unclear why the emails were included in the submissions as the conduct referred to in the emails is entirely different to the conduct subject of this matter. The Appellant, correctly in my view, disputes the relevance of the emails. The emails refer to a range of performance issues, none of which appear to touch the issues relevant to this matter. The emails were not referred to throughout the show cause process and I have placed no weight on the emails in considering this appeal.
  1. [35]
    I accept that a long-standing employee and supervisor would reasonably be expected to behave in accordance with the Code of Conduct and the Workplace Behaviour Policy. Although the Appellant may view the penalties as disproportionate for a single occurrence, it was open to the Respondent to impose such a penalty given the nature of the conduct. The fact that the Appellant, who occupies a senior role in the workplace, saw fit to make such inappropriate comments in a work setting to someone with whom he had never previously spoken reflects a significant failure in judgment. It should go without saying that the complainant has the right to attend the workplace without being the subject of sexually harassing conduct.
  1. [36]
    The Appellant submits that he is being made an example of in light of 'heightened awareness of an imbalance in gender related appropriateness in workplaces'. He also submits that the Respondent is more concerned with being viewed 'as a strong demonstrator of aligning with current PC opinions' rather than trying to work through the matter. Sexual harassment is not tolerated in the Queensland public service because such conduct is against the law,[8] not because it aligns with particular opinions. The Appellant made submissions that he has engaged with social justice causes as evidence of him striving to 'be a better person'. The critical factor in ensuring respect at work is ensuring the actions of individuals in the workplace are held to an appropriate standard, and it is these actions which the Respondent is attempting to address.
  1. [37]
    It was open to the Respondent to impose a disciplinary penalty of a twelve month increment reduction from PO4.4 to PO4.3 following consideration of the Appellant's response to the show cause letter. The commencement of a PDP with three month reviews for a two year period is not unreasonable. The PDP is aimed at developing employees, improving performance and enhancing relationships. As noted by the Respondent, it is not a performance improvement plan, which is a process used to address poor performance. A combination of the PDP, code of conduct training and workplace behaviour training will assist the Appellant in ensuring that his future conduct is appropriate within the workplace.
  1. [38]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[9] 

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

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

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[10]

  1. [39]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances. The penalties are, in my view, proportionate to the substantiated conduct.
  1. [40]
    Based on the information before me, I am satisfied that the decision to impose a disciplinary penalty of a reduction in remuneration, commencement of the PDP, code of conduct training, and workplace behaviour training is fair and reasonable in the circumstances.

Order

  1. [41]
    I make the following order:

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

Footnotes

[1] With the ability to increment back to PO4.4 after 12 months.

[2] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

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

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

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

[6] Opportunity to Respond letter dated 19 April 2021.

[7] For example, the Transport Operations (Road Use Management – Road Rules) Regulation 2009 (Qld) and Waste Reduction and Recycling Act 2011 (Qld).

[8] PS Act, Anti-Discrimination Act 1991 (Qld).

[9] [2019] QSC 170.

[10] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    McKenzie v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    McKenzie v State of Queensland (Department of Environment and Science)

  • MNC:

    [2022] QIRC 234

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    21 Jun 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

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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