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  4. Manttan v State of Queensland (Department of Education) - [2022] QIRC 238

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Manttan v State of Queensland (Department of Education)[2022] QIRC 238

Manttan v State of Queensland (Department of Education)[2022] QIRC 238

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Manttan v State of Queensland (Department of Education) [2022] QIRC 238

PARTIES:

Manttan, Jason Rodney

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2021/394

PROCEEDING:

Public Service Appeal - Appeal against disciplinary findings decision and appeal against discipline decision

DELIVERED ON:

22 June 2022

MEMBER:

HEARD AT:

Merrell DP

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decisions appealed against are confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the discipline decision appealed against, made on 18 November 2021, is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – Appellant employed as a Principal at a State School – investigation into aspects of Appellant's conduct as Principal – Appellant invited to show cause why disciplinary findings about eight allegations made against him should not be made – Appellant responded – disciplinary findings decision that five allegations substantiated, one allegation partially substantiated and the remaining two allegations not substantiated – Appellant invited to show cause why he should not be demoted, reprimanded, counselled and be directed to undertake certain training in relation to the six substantiated allegations – Appellant responded – discipline decision that Appellant be demoted, reprimanded, counselled and to undertake certain training – Appellant appealed against disciplinary findings decision and discipline decision – whether disciplinary findings decision and discipline decision fair and reasonable – disciplinary findings decision and discipline decision fair and reasonable – decisions appealed against confirmed

LEGISLATION:

Commission Chief Executive Guideline 01/17: Discipline, cl 11

Crime and Corruption Act 2001, s 15

Directive: 14/20 - Discipline, cl 5, cl 7 and cl 8

Directive: 15/20 - Positive performance management

Directive: 16/20 - Suspension directive

Industrial Relations Act 2016, s 562B, s 562C and s 566

Public Service Act 2008, s 25A, s 26, s 137, s 186C, s 187, s 188, s 197 and s 201

CASES:

Camilleri v IBM Australia Limited [2014] FWC 5894

Kioa v West [1985] HCA 81; (1985) 159 CLR 550

Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Nguyen v State of Queensland (Queensland Health) [2021] QIRC 267

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397

Re Minister for Immigration and Multicultural and Indigenous Affairs v Lam [2003] HCA 6; (2003) 214 CLR 1

Vega Vega v Hoyle & Ors [2015] QSC 111

Reasons for Decision

Introduction

  1. [1]
    Mr Jason Rodney Manttan is employed by the State of Queensland as the Principal of the Clifton State School ('the school') through the Department of Education ('the Department').
  1. [2]
    By letter dated 25 May 2021, Ms Janita Valentine, Executive Director, Integrity and Employee Relations, Human Resources of the Department, informed Mr Manttan that she was in receipt of an investigation report dated 2 September 2020 concerning his alleged conduct as a Principal. Ms Valentine invited Mr Manttan to show cause as to why she should not make disciplinary findings in relation to eight allegations (identified as Allegations Five, Six, Seven, Ten, Eleven, Twelve, Thirteen, and Seventeen) made against him ('the first show cause').
  1. [3]
    The allegations were that he contravened s 187(1)(b) of the Public Service Act 2008 ('PS Act'), in that he was guilty of misconduct (Allegations Seven, Ten, Twelve and Seventeen) or, in the alterative, that he contravened s 187(1)(g) of the PS Act in that he contravened, without reasonable excuse, a standard of conduct applying to him under an approved code of conduct under the Public Sector Ethics Act 1994 (Allegations Five, Six, Seven, Ten, Eleven, Twelve, Thirteen, and Seventeen).
  1. [4]
    By letter dated 14 June 2021, Mr Manttan responded to the first show cause ('the first response').
  1. [5]
    By letter dated 10 September 2021, Mr Duncan McKellar, Executive Director, Integrity and Employee Relations, Human Resources of the Department, informed Mr Manttan that he had determined that:
  • Allegation Five was partially substantiated and Allegations Six, Seven, Ten, Twelve and Thirteen were substantiated;
  • on the basis of those findings, pursuant to s 187(1)(g) of the PS Act, Mr Manttan contravened, without reasonable excuse, a standard of conduct applying to him under an approved code of conduct under the Public Sector Ethics Act 1994, namely:
  1. -
    clause 3.1 of the Code of Conduct for the Queensland Public Service ('the Code') in respect of Allegations Five, Seven, Ten and Twelve;
  1. -
    clause 1.5 of the Code in respect of Allegation Thirteen; and
  1. -
    clause 1.5 of the Department's Standard of Practice ('the Standard') in respect of Allegation Six ('the disciplinary findings decision'); and
  • he was giving serious consideration to:
  1. -
    demoting Mr Manttan from Principal, Level 2, pay-point 3, to Heads of Program, Level 1, pay-point 3, with the option for a change in location (for operational reasons) to a school within 50 minutes of the school;
  1. -
    imposing a reprimand;
  1. -
    requiring Mr Manttan to be counselled; and
  1. -
    issuing a direction that Mr Manttan undertake the Department's online training in Management Foundations, Financial Management for Principals and Intermediate Value Purchasing Training no later than two months after the commencement of the reduction in his classification level and to provide evidence of his successful completion of such training ('the proposed discipline decision').
  1. [6]
    Mr McKellar then invited Mr Manttan to show cause, within seven days of Mr Manttan's receipt of Mr McKellar's letter, why the proposed discipline decision should not be taken ('the second show cause').
  1. [7]
    By letter dated 8 October 2021, Mr Manttan responded to the second show cause ('the second response').
  1. [8]
    By decision dated 26 October 2021, Mr McKellar advised Mr Manttan that he had decided to impose the proposed discipline decision other than the requirement that Mr Manttan undertake the Department's online training in Management Foundations and Financial Management for Principals ('the discipline decision').
  1. [9]
    By appeal filed on 17 November 2021, Mr Manttan appealed against the disciplinary findings decision and against the discipline decision.
  1. [10]
    By directions order dated 18 November 2021, I stayed the discipline decision until the determination of Mr Manttan's appeal or further order of the Commission. I also directed the parties to file and serve written submissions in relation to the appeal. Both parties have filed and served written submissions and neither party has requested leave to make oral submissions or further written submissions. As a consequence, I will determine Mr Manttan's appeal on the papers.
  1. [11]
    Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Queensland Industrial Relations Commission. The principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions in s 562B(2) and s 562B(3) of the IR Act.[1]
  1. [12]
    I must decide the appeal 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. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision‑making process associated therewith.[3] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for my determination is whether the decisions appealed against were fair and reasonable.[5]
  1. [13]
    For the reasons that follow, I find that the disciplinary findings decision and the discipline decision were fair and reasonable and, as a consequence, I confirm the disciplinary findings decision and the discipline decision.

Background

  1. [14]
    The substantiated allegations, contained in the second show cause, were:

Allegation Five: Between approximately 15 January 2019 and approximately 1 December 2019 Mr Manttan inappropriately established and/or maintained a Facebook account for Clifton State School.

Allegation Six:  Between 15 January 2019 and 2 December 2019 Mr Manttan inappropriately took photograph(s) of student(s) using a personal mobile device.

Allegation Seven: On or about 13 September 2019 Mr Manttan inappropriately uploaded photograph(s) of student(s) to a social media platform.

Allegation Ten: Between 1 January 2019 and 25 May 2019, Mr Manttan failed to comply with departmental policies and/or procedures for the purchase of a Kubota mower.

Allegation Twelve: Between 1 January 2019 and 23 July 2019 Mr Manttan failed to comply with departmental policies and/or procedures for the purchase of data projectors.

Allegation Thirteen: On 30 July 2019, Mr Manttan failed to appropriately ensure safe care and/or supervision of student(s) at Clifton State School.

  1. [15]
    Section 187(1)(g) of the PS Act provides that a public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied that the employee has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [16]
    Section 187(4) of the PS Act defines the phrase 'relevant standard of conduct' to mean:
  • a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  • a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
  1. [17]
    It is not disputed that:
  • the Code is such an approved code of conduct; and
  • the Standard is such an approved standard of practice.
  1. [18]
    On my review of the first show cause, each of the above-mentioned substantiated allegations were comprehensively particularised.
  1. [19]
    Mr McKellar found, in the disciplinary findings decision, that:
  • in respect of Allegation Five, Allegation Seven, Allegation Ten and Allegation Twelve, it was cl 3.1 of the Code that Mr Manttan contravened, which relevantly provides:

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:

…

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

  • in respect of Allegation Thirteen, it was cl 1.5 of the Code that Mr Manttan contravened, which relevantly provides:

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:

…

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

  • in respect of Allegation Six, it was cl 1.5 of the Standard that Mr Manttan contravened, which relevantly provides:

Electronic communication between employees and students

…

Employees must not use personal cameras or mobile phones to photograph students unless prior approval has been given by their principal or manager.

Mr Manttan's submissions as to why the disciplinary findings decision and the discipline decision were not fair and reasonable

  1. [20]
    In his submissions, Mr Manttan raises a number of grounds as to why the decisions he appealed were not fair and reasonable.
  1. [21]
    In dealing with each of these grounds, it is convenient to summarise Mr Manttan's contentions in respect of each ground, then, where relevant, to summarise the Department's response, and then to give my determination and reasons in respect of each ground.
  1. [22]
    I will first deal with the grounds most relevant to the disciplinary findings decision.
  1. [23]
    Then I will deal with the grounds most relevant to the discipline decision.

The disciplinary findings decision submissions

No evidence the chief executive's power in s 187 of the PS Act was properly delegated to Ms Valentine and Mr McKellar

  1. [24]
    Mr Manttan contends that no evidence has been provided that the power in s 187 of the PS Act was delegated to the decision-maker; by this I assume he means Mr McKellar. Mr Manttan asserts that if there was no such delegation, the disciplinary findings decision and discipline decision were beyond the power of the decision maker.
  1. [25]
    Annexed to the Department's submissions were the first response and the second response. I cannot see in those responses where Mr Manttan raises the issue about whether or not Mr McKellar was properly delegated the power to make the disciplinary findings decision and the discipline decision under the PS Act.
  1. [26]
    The Department annexes to its submissions, the Department's Human Resources Delegation Manual. Having regard to s 9.2.2 and s 9.2.3 of that Manual, clearly Mr McKellar was delegated the chief executive's power to make both decisions.
  1. [27]
    The decisions, in respect of this ground, were fair and reasonable.

The Department failed to inform Mr Manttan that Allegation Five and Allegation Six were being investigated

  1. [28]
    Mr Manttan contends that the terms of reference for the investigation that led to the allegations being made against him, settled on 13 September 2019, did not cover Allegation Five and Allegation Six, such that he was denied natural justice. In respect of this aspect of his case, Mr Manttan refers to the decision of A Lyons J in Vega Vega v Hoyle & Ors.[6] Mr Manttan contends that his ability to respond was impacted by the excessive length of his interview (5.25 hours) and that no transcript was provided until 409 days later.
  1. [29]
    This ground is misconceived. The concern of procedural fairness is to avoid practical injustice such that, relevantly to this ground, a person has not lost an opportunity to put any information or argument to a decision maker or has otherwise suffered any detriment.[7] Allegation Five and Allegation Six, and the comprehensive particulars of each of those allegations, were put to Mr Manttan in the first show cause.
  1. [30]
    Mr Manttan provided a comprehensive response to Allegation Five and Allegation Six in the first response, including by making:
  • in relation to Allegation Five, an admission that he did not follow the relevant procedure and that he was unaware of that procedure; and
  • in relation to Allegation Six, an admission that he did not follow the Standard and that he was unaware he had to seek supervisor approval.
  1. [31]
    The decision, in respect of this ground, was fair and reasonable.

Failure to follow relevant policies and guidelines

  1. [32]
    Mr Manttan refers to s 186C of the PS Act which provides that a public service employee's chief executive must not take disciplinary action against a public service employee for a matter relating to the employee's performance until the chief executive has complied with a directive under s 25A(3) of the PS Act about applying the positive performance management principles in relation to the matter.
  1. [33]
    Mr Manttan then refers to a number of policies, Directives and Guidelines which he submitted were applicable to his circumstances but were not followed.
  1. [34]
    Mr Manttan referred to the Department's Managing Unsatisfactory Performance - Principals Policy ('the MUP'), which he submitted:
  • prescribes procedures for the identification and management of unsatisfactory performance and a framework giving Principals an opportunity to address concerns in a way that ensures efficiency, equity, dignity and confidentiality; and
  • states that performance concerns must be communicated clearly and with sufficient detail to afford the Principal every reasonable opportunity to address the concerns, and that issues that may lead to a formal MUP process will usually be identified informally and formal performance management processes will usually be applied in the event of unaddressed, ongoing and/or significant performance concerns.
  1. [35]
    Mr Manttan then referred to Directive: 15/20 - Positive performance management ('the PPM Directive'), which he submitted outlines the principles of positive performance management, details the processes for managing performance, describes the use of performance and development agreements and details the process of managing unacceptable performance in a supportive way. Mr Manttan submitted that no gaps in his performance were raised with him.
  1. [36]
    Mr Manttan also referred to the Commission Chief Executive Guideline 01/17: Discipline ('the Discipline Guideline') which, at cl 11.5, provides that generally, a face‑to‑face meeting with the employee who is subject to the allegations should be arranged as early as possible to discuss the allegation(s) and provide them copies of relevant material and explain their meaning and purpose. Mr Manttan submitted that did not occur in his case. It was also submitted that the Discipline Guideline, at cl 11.9(a), states that the nature of the allegations themselves will inform whether formal investigation is necessary, in that an early conversation with the employee about their alleged conduct may prevent any need for a formal or informal investigation or disciplinary process and, that in his case, no such conversation took place.
  1. [37]
    Related to that, Mr Manttan referred to a QIRC Notable Case which concerned disciplinary action of a reduction in classification level and consequential change of duties and that the Public Service Commission key message and reminder for managers from the case was that '… it is critical ... work performance and personal conduct matters are raised and appropriate action that may be taken in a timely way. This intervention may allow for self-correction by the employee and avoid a disciplinary process'. Mr Manttan submitted that in his case:
  • none of the allegations were raised by his supervisor;
  • he was notified of Allegation Five during a school audit in August 2019 but was not afforded the allocated time to address the issue;
  • he was made aware of Allegation Thirteen by a staff member on 30 July 2019, at which time he apologised and then over two years later he was disciplined regarding the matter; and
  • he was not informed of the remaining four allegations until well after being removed from the school, he was informed of Allegations Six and Seven on 17 April 2020, he was not informed of any delegation issue relating to Allegations Ten and Twelve until 25 May 2021 and he was not informed of Allegations Six, Seven, Ten and Twelve while performing his role of Principal and was not given any opportunity to correct his actions.
  1. [38]
    Mr Manttan next referred to Directive: 16/20 - Suspension directive ('the Suspension Directive') which states that the decision maker must provide in Manttan v State of Queensland (Department of Education) [2022] QIRC 238writing to the employee when the suspension starts and ends, but that the letter he received stated:

Your placement on alternative duties is effective from 2 December 2019, and unless otherwise advised, will cease at the conclusion of all necessary processes to determine your liability for disciplinary action.

  1. [39]
    Mr Manttan then referred to the Queensland Government Conduct and Performance Excellence (CaPE) Framework ('the CaPE Framework') which he submitted prescribed benchmark timeframes for managing inappropriate conduct and poor performance which ranged from 28 days, being Category 1 (performance requiring improvement) to 200 days being Category 3(b) (conduct that is a breach of criminal law). Mr Manttan submitted that discipline under ch 6 of the PS Act must be timely and that, in reliance on the decision of the Fair Work Commission in Camilleri v IBM Australia Limited ('Camilleri'),[8] due to the extraordinary delay, the decision is unfair and unreasonable.
  1. [40]
    Finally, Mr Manttan referred to the Directive: 14/20 - Discipline ('the Discipline Directive') which he submitted, at cl 7.3, requires consideration of '…whether there are more proactive strategies than disciplinary action to manage the personal and professional development' and that as a new Level 2 Principal, there were more appropriate measures to manage his performance than imposing the disciplinary penalty.
  1. [41]
    The Department submitted that:
  • it is not a prerequisite that an employee be offered the opportunity to correct their conduct prior to a matter being referred to Integrity and Employee Relations or prior to the commencement of the disciplinary process;
  • clause 5 of the Discipline Directive outlines the requirements to commence a disciplinary process;
  • prior to the disciplinary process being commenced, consideration was given to the matters referred to in cl 5 of the Discipline Directive by the relevant delegated decision maker;
  • it is not relevant as to whether or not Mr Manttan was subject to a MUP process prior to the matters being referred to Integrity and Employee Relations;
  • the PPM Directive only applies to management action, performance development agreements and performance improvement plans initiated after its commencement (which was on 25 September 2020) and therefore does not apply to Mr Manttan's situation;
  • the Discipline Guideline is to provide guidance only, and it does not bind or substitute for decision makers needing to properly exercise their managerial discretion in line with the PS Act in response to the unique set of facts in each case; and
  • because the first show cause was issued on or around 25 May 2021 and the decision was made on or around 26 October 2021, the disciplinary process was not prolonged.
  1. [42]
    In my view, the Department's submissions are persuasive. There are a number of reasons for this.
  1. [43]
    First, Mr Manttan referred to s 186C of the PS Act which provides that a public service employee's chief executive must not take disciplinary action against a public service employee, for a matter relating to the employee's performance, until the chief executive has complied with the PPM Directive.
  1. [44]
    The eight allegations contained in the first show cause were all characterised as allegations concerning Mr Manttan's conduct, such that he allegedly contravened s 187(1)(b) of the PS Act and was guilty of misconduct (Allegations Seven, Ten, Twelve and Seventeen) or that he allegedly contravened s 187(1)(g) of the PS Act and contravened, without reasonable excuse, the Code or the Standard (all Allegations Five, Six, Seven, Ten, Eleven, Twelve, Thirteen and Seventeen).
  1. [45]
    In my view, the characterisation of those allegations, being allegations concerning his conduct, was correct. They concerned allegations of Mr Manttan's deliberate departure from accepted standards of conduct as a Principal, including those as set out in the Code and the Standard, as opposed to the performance of his duties.
  1. [46]
    In respect of the substantiated allegations contained in the second show cause (and set out in paragraph [14] of these reasons), for the same reasons, they are about his conduct as the Principal of the school. As such, there was no requirement for the PPM Directive to be applied prior to the commencement of the disciplinary process. The decision of Industrial Commissioner McLennan in Nguyen v State of Queensland (Queensland Health)[9] is to the same effect.
  1. [47]
    Secondly, for the same reasons, it was not mandatory for the MUP to be applied to Mr Manttan before disciplinary action could be commenced against him. The objective of the MUP is '… for unsatisfactory performance of state school principals to be identified and managed so that state school principals are meeting or exceeding performance expectations and service delivery standards that maintain public confidence in state schooling.'
  1. [48]
    As also set out in the MUP, the performance expectations of which principals are responsible and accountable, include:
  • leading and managing the school community and their own performance and the performance of their school;
  • their positive engagement with the Developing Performance Framework (inclusive of Leadership Matters) and Educational Leaders Capability and Leadership Framework; and
  • compliance with relevant legislation, including but not limited to the Education (General Provisions) Act 2006.
  1. [49]
    The allegations against Mr Manttan contained in the first show cause did not concern the performance issues as contemplated in the MUP. Rather, those allegations concerned his conduct as a Principal, including his compliance with the Code and the Standard. The allegations were not about his work performance.
  1. [50]
    Thirdly, assuming that no meeting occurred as contemplated by cl 11.5 and cl 11.9(a) of the Discipline Guideline, that fact does not, on its own, render the disciplinary findings decision not fair and reasonable. The Discipline Guideline is just that, a guideline and is not mandatory in its application. The meetings referred to in cl 11.5 and cl 11.9(a) of the Discipline Guideline are not mandatory steps in the discipline process.
  1. [51]
    In any event, having regard to the serious nature of the eight allegations, as contained in the first show cause, made against Mr Manttan as Principal of the school, it is unremarkable that no such meeting occurred. The basis of the first show cause was that Mr Manttan had engaged in the conduct the subject of the eight allegations. Detailed particulars were provided. The allegations were serious. Ms Valentine wanted a response from Mr Manttan. Having regard to the number of allegations, their seriousness and the extensive particulars, the requirement for a written response was fair and reasonable. It is difficult to see what, if anything, such a meeting would have achieved. Further, Mr Manttan does not explain how the failure to have such a meeting resulted in any practical unfairness to him or how that failure disadvantaged him in responding to the first and second show causes.
  1. [52]
    Fourthly, having regard to the QIRC Notable Case to which Mr Manttan refers, the basis of the commentary set out in that case (under the heading of 'Key messages and reminders for managers') was that it was critical for managers to facilitate an open and transparent environment where concerns about work performance and personal conduct matters are raised and appropriate action may be taken in a timely way which may allow for self‑correction by the employee and the avoidance of a disciplinary process. The basis of that commentary, as best as I can read the report of that case, comes from s 26(3)(b) of the PS Act which provides that a public service manager must, if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter. In my opinion, having regard to the serious nature of the allegations contained in the first show cause, the statutory requirement set out in s 26(3)(b) of the PS Act was applied in the present case.
  1. [53]
    Following the receipt of the investigation report dated 2 September 2020, Ms Valentine, considered that report and the relevant documentation, reframed some of the allegations and then, by letter dated 25 May 2021, put the eight allegations to Mr Manttan in the first show cause. In my view, having regard to the nature of those eight allegations, being serious in nature having regard to Mr Manttan's position as Principal of the school, they were of such a nature that it was not the case that those allegations could be or should have been subject to informal discussion between Mr Manttan and his supervisor for the purposes of resolving those allegations. The seriousness of the allegations were such that it was fair and reasonable for them to be formally put to Mr Manttan on the basis that his alleged conduct may have involved him contravening either s 187(1)(b) of s 187(1)(g) of the PS Act.
  1. [54]
    It would have been preferable for Ms Valentine to have provided the first show cause to Mr Manttan before May 2021. The entire investigation report has not been provided to me. Therefore, I cannot assess its volume or complexity. However, as I read Mr Manttan's responses to both show causes, there is no indication to me that Mr Manttan suffered any practical injustice arising out of the delay in him being issued with the first show cause.
  1. [55]
    For these reasons, I am not persuaded that the issues regarding the timeliness of the commencement of the disciplinary action against Mr Manttan renders the disciplinary findings decision other than fair and reasonable.
  1. [56]
    For the same reasons, I reject Mr Manttan's submissions concerning the CaPE Framework and the reference he made to the decision of the Fair Work Commission in Camilleri.
  1. [57]
    While the CaPE Framework recommends a benchmark of between 139 days and 200 days for the resolution of serious misconduct matters, with the time commencing when the agency first becomes aware of the matter through to the employee being advised of what action the agency will take to resolve the matter, those timeframes are only benchmarks.
  1. [58]
    Clearly, the circumstances of each individual case would need to be taken into account as to whether or not any unfairness has arisen in the time it takes for an agency, upon first becoming aware of the matter, to advise the employee of the action to be taken.
  1. [59]
    For the reasons I have given above, upon Ms Valentine receiving the investigation report, she took action in issuing a show cause regarding the number of allegations made against Mr Manttan. This action could have been taken more promptly. However, I am not persuaded, having regard to the serious nature of the allegations, that it took Ms Valentine between September 2020 and May 2021 to issue the first show cause has resulted in any unfairness or unreasonableness towards Mr Manttan.
  1. [60]
    Again, as I read Mr Manttan's responses to both show causes, there is no indication to me that Mr Manttan suffered any practical injustice arising out of the delay in him being issued with the first show cause.
  1. [61]
    The decision of the Fair Work Commission in Camilleri concerned an unfair dismissal case. In that case, there was a period of three years between the first claim being made against the employee and the termination of the employee's employment. That timeframe was, with justification, criticised by the member of the Fair Work Commission who heard that case.[10] However, that delay was not the only reason why the Fair Work Commission determined that the employee's dismissal was, overall, harsh, unjust or unreasonable.[11] For these reasons, the facts in that case are clearly distinguishable from those of Mr Manttan.
  1. [62]
    Mr Manttan's submissions about the Suspension Directive do not persuade me that the disciplinary findings decision was other than fair and reasonable. The clause of the Suspension Directive to which Mr Manttan refers (namely, the suspension notice stating the start and end date of the suspension) applies when an employee is actually suspended from duty. As I understand the facts, Mr Manttan was not suspended from duty but was temporarily transferred to alternative duties. The provision of the Suspension Directive to which Mr Manttan refers does not assist his case.
  1. [63]
    Mr Manttan also referred to the Discipline Directive which, at cl 7.3, requires a chief executive to consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees. Mr Manttan submitted that as a new Level 2 Principal, there were more appropriate measures to manage his performance than imposing the disciplinary penalty.
  1. [64]
    For the same reasons given earlier in these reasons, the disciplinary procedure commenced against Mr Manttan did not concern his performance as the Principal of the school, but rather his conduct viewed against the provisions of the PS Act, the Code and the Standard.
  1. [65]
    For these reasons, it was appropriate for disciplinary action to be commenced against Mr Manttan.

Mr Manttan's explanations in relation to each of the six substantiated allegations

  1. [66]
    Mr Manttan then submits that in respect of each of the six substantiated allegations, Mr McKellar '… failed to fairly consider my explanation or the intent behind my action/inaction.'
  1. [67]
    I will deal with each allegation in turn.

Allegation Five

  1. [68]
    Mr Manttan submits that:
  • he intended to create an appropriate Facebook page for the school;
  • the page was 'consistent' with a correctly created Department school page;
  • he was unaware of the relevant policy and had not trained in the policy but accepts that does not excuse his conduct and that he should have researched the Department policies;
  • compliance of the Facebook page was documented officially in the Final School Audit Report received on 1 November 2019, being determined as a 'MEDIUM priority development area' and that for a medium priority, schools have three months to commence implementation; and
  • he was removed one month into this process and he understands that the inappropriate creation of other school Facebook pages were not brought before Integrity and Employee Relations, but managed through the school audit process only.
  1. [69]
    The fact that Mr Manttan's intent behind creating the Facebook page did not persuade Mr McKellar from substantiating this allegation is unremarkable.
  1. [70]
    My view in this regard is borne out by Mr McKellar's reasoning and the finding that the allegation was substantiated.
  1. [71]
    Mr McKellar, at paragraph 10, page 4 of the disciplinary findings decision, stated that the purpose of the Social Media Procedure, being the policy relevant to Allegation Five, was to ensure all online communications made by the Department through its social media channels were consistent with Departmental policies and procedures and applicable privacy and copyright laws. Mr McKellar found that Mr Manttan's failure to comply with that procedure meant the Department could not oversee such matters.
  1. [72]
    At paragraph 11, page 4, Mr McKellar stated that through the Procedure, the Department placed a level of trust in Principals that Facebook pages would be compliant with Departmental procedures and that Mr Manttan's conduct represented a significant departure from those expectations and his obligations as the Principal.
  1. [73]
    Mr McKellar's reasoning is self-evidently correct.

Allegation Six

  1. [74]
    Mr Manttan submits that:
  • he acknowledged in his (investigation) interview and response that he purchased a dual SIM mobile device with the intention of using it for both school and personal use;
  • his intention was to use the one phone with both his personal SIM and Department SIM installed, and avoid misuse of Department funds;
  • whilst he acknowledges that by not seeking supervisor approval, his use of the mobile device to take photos was not compliant, there was nothing sinister or intentionally inappropriate about his actions as inferred by the decision maker;
  • he was not well enough across the 32 page Standard which mentions supervisor approval on page 9; and
  • the photographs taken were for official purposes only, for example, to be used in the school newsletter.
  1. [75]
    That Mr Manttan's intent behind taking the photographs did not persuade Mr McKellar from substantiating this allegation is objectively sound as borne out by Mr McKellar's reasoning and finding that this allegation was substantiated.
  1. [76]
    At paragraph 6, page 5 of the disciplinary findings decision, Mr McKellar referred to Mr Manttan's admission that he did not follow the requirements of the Standard and that he did not seek approval from his supervisor, Mr Nigel Brito, Assistant Regional Director, as required by the Standard.
  1. [77]
    Mr McKellar also referred to Mr Manttan's admission that he was unaware of the requirement to seek such supervisor approval. Mr McKellar stated that he did not accept that those facts excused Mr Manttan's conduct because the Standard was a fundamental document outlining Mr Manttan's obligations as a Departmental employee, and that as a school leader, the Department expected him to lead by example.
  1. [78]
    At paragraph 8, page 5 of the disciplinary findings decision, Mr McKellar relevantly stated:
  1. Finally, I do not accept that your 'belief' that your conduct was appropriate, based on the absence of complaints from staff, parents or your supervisor, or your intentions, to excuse your conduct. The onus is on you, as a departmental employee, to be aware of the department's policies and expectations regarding your behaviour and conduct, and the absence of complaints does not deem your conduct to be appropriate. Rather, this simply means you were not aware of any complaints being raised. Employees must not engage in behaviour that raises a reasonable suspicion that the standards applying to professional employee/student relations have been or may be breached. Even if the photos were ultimately used only for official purposes, I am nonetheless satisfied that using your personal mobile phone to take photographs of students in circumstances where approval from Mr Brito [the relevant Assistant Regional Director] had not been sought, could have given rise to a perception that such standards were or had been breached. I am satisfied this represents a serious breach of your obligations as a departmental employee, in particular noting your position of leadership at CSS.
  1. [79]
    In my opinion, Mr McKellar's reasoning is self-evidently correct.

Allegation Seven

  1. [80]
    Mr Manttan submits that:
  • he intended to seek photographic consent for both students and took extensive steps to obtain consent, which was achieved;
  • whilst the consent did not meet Departmental requirements, he did not flagrantly disregard consent requirements or seek to act inappropriately as inferred by Mr McKellar;
  • Mr McKellar did not give appropriate consideration to the fact that both students' guardians provided consent prior to the publication of photos on Facebook, albeit not in the form required by the Department;
  • the finding that he attempted to downplay his conduct in a dishonest way and was

'disingenuous' when pointing out the attempts he made to obtain permission and apparent disparity of treatment was not a reasonable finding on the evidence;

  • with Student X,[12] after extensive steps, permission was received in writing (email) on 2 September 2019, which was 11 days before the posting of the photograph on Facebook;
  • with Student Y,[13] permission was received by phone on 28 August 2019, which was 16 days before the posting of the photograph on Facebook, however, the 'investigator' failed to take steps to confirm this contact with Student Y's parent;
  • he always had high regard for the importance of attaining and respecting parental consent, he lacked knowledge of what constitutes 'valid consent' but there was no flagrant disregard as found; and
  • further, the decision maker did not explain why the evidence of Ms Glenda Harris was preferred over his evidence.
  1. [81]
    Mr McKellar dealt with this allegation, in the disciplinary findings decision, over 14 paragraphs which ran for five pages.
  1. [82]
    Mr McKellar's consideration of the evidence and of Mr Manttan's submissions concerning this allegation is extensive, considered and, in my opinion, sound.
  1. [83]
    In summary, Mr McKellar found that:
  • Mr Manttan admitted that he did not use the correct departmental forms in seeking the consent of Students X and Y (paragraph 4, page 6);
  • Mr Manttan did not dispute that, on 13 September 2019, he uploaded a photograph of Student X and a photograph of Student Y onto the school Facebook page (paragraph 7, page 7); and
  • he was not satisfied that appropriate consent, as required by the Social Media Procedure and Consent Procedure, was obtained prior to uploading photographs of Students X and Y (paragraphs 8 and 9, pages 7 and 8).
  1. [84]
    Mr McKellar also found that:
  • as the person who uploaded the photographs onto the Facebook page, '… it was incumbent upon you to ensure consent had been given before disclosing their personal information on the' Facebook page; and
  • because of his (Mr Manttan's) own admission that he actively attempted to take steps to confirm the consent given in relation to Students X and Y, he was satisfied that Mr Manttan was aware appropriate consent had not been given for those students (paragraph 11, page 9).
  1. [85]
    Mr McKellar does refer to the evidence of Ms Glenda Harris, but he did not expressly state that he rejected Mr Manttan's evidence over hers. However, the main context to which the evidence of Ms Harris is referred is that Mr Manttan, in his submissions, tried to blame her for his non-compliance with the applicable procedure.
  1. [86]
    In any event, given the admissions by Mr Manttan, the issue with Ms Harris' evidence is not determinative.
  1. [87]
    As Mr McKellar found, as the person who uploaded the photographs and as Principal, it was incumbent upon Mr Manttan to ensure compliance with the applicable procedure (paragraph 11, page 9).

Allegations Ten and Twelve

  1. [88]
    Mr Manttan submits that:
  • he intended for school purchases to meet an identified need, appropriately consider the funds available and comply with relevant legislation;
  • this was upheld, however, he accepts his additional involvement in the quotation process blurred the separation of responsibilities in the procurement process;
  • he did not act dishonestly and his conduct did not meet the definition of 'corrupt conduct' in s 15 of the Crime and Corruption Act 2001;
  • the findings made did not involve personal gain;
  • the issue of expenditure and purchasing delegations was not raised at the time of purchase, in the School Audit, by his supervisor or any staff member, and it was not raised in his investigation interview; and
  • the Department could not have objectively and reasonably found that his submission meant that he did not understand the importance of complying with Departmental purchasing rules in circumstances where he acknowledged his failure to comply and the importance of the rules.
  1. [89]
    In short, Mr Manttan's submission was that while he did not comply with the relevant Departmental purchasing procedures, no action should be taken against him because:
  • the equipment was needed;
  • he did not personally benefit out of the purchases; and
  • no one, at the time of the purchases, complained.
  1. [90]
    These explanations lack any reasonable merit because they completely disregard the governance imperatives behind such procedures to avoid fraud or the waste of public money.
  1. [91]
    It was these imperatives that were the basis of the reasoning behind Mr McKellar's decisions (pages 10 to 18 of the disciplinary findings decision).

Allegation Thirteen

  1. [92]
    Mr Manttan submits that:
  • he forgot that he had gate duty and apologised for his error at the time;
  • it was an isolated incident;
  • the finding that the breach was deliberate was unreasonable on any objective assessment of the evidence;
  • no logical rationale for finding that his oversight did not amount to human error was provided and that it was simply assumed that he acted deliberately, despite the evidence clearly indicating there was only one instance where he failed to perform this supervisory duty;
  • it was found that it '… contributed to a pattern of behaviour and a reckless indifference'; and
  • he did not seek to exculpate himself because no student was harmed, he clearly admitted that he should have performed the duty, he took ownership of his mistake and ensured it did not occur again.
  1. [93]
    Mr McKellar in the disciplinary findings decision stated:
  1. It is not in dispute that on 30 July 2019, you were rostered for Duty. You admit in your Response that you failed to complete this Duty. While you attempt to downplay your conduct as a 'mistake' and 'human error' I am satisfied that your conduct is more serious than this. Specifically:
  1. (a)
    I am satisfied on balance that the parent-teacher interviews for your son (which you told Ms Burton in your email to her you had left CSS straight after school to attend) would have been pre-organised and something you would in all likelihood have had advance notice of. In any event, you have not provided any evidence to suggest, for example, that the parent-teacher interviews were a surprise to you on the afternoon of 30 July 2019;
  1. (b)
    having been performing gate duty each afternoon for Term 1 and Term 2 2019, and on Mondays, Tuesday and Wednesdays for Term 3, 2019 (as outlined on pages 76 ‑ 79 of your Response), I am satisfied you were well aware of your obligation to attend this duty. I do not consider this is something that would have been easily forgotten by you; and
  1. (c)
    you have provided no evidence to suggest that you attempted to source a replacement for this gate duty. On the contrary, your statement [sic] Ms Burton in your email of 30 July 2019 was that you 'obviously hadn't organised anyone else for the gate duty'.
  1. [94]
    The evidence referred to by Mr McKellar, and his reasoning in relation to this finding are, unimpeachable.
  1. [95]
    When considering all of the substantiated allegations, it was open to Mr McKellar, as he did at paragraph 19 of the discipline decision, to conclude that Mr Manttan has demonstrated a concerning pattern of behaviour or a tendency by him to ignore or be recklessly indifferent to his obligations under policies and procedures.
  1. [96]
    For all the reasons given in relation to Mr Manttan's submissions about his explanations, the disciplinary findings decision was fair and reasonable.

Conclusion as to whether the disciplinary findings decision was fair and reasonable

  1. [97]
    For the reasons I have given, the disciplinary findings decision was fair and reasonable.

The discipline decision submissions

The disciplinary penalty is disproportionate to the conduct substantiated against Mr Manttan

  1. [98]
    It seems to me that, having regard to Mr Manttan's submissions, that it is his demotion from the position of Principal, Level 2, pay-point 3, to Heads of Program, Level 1, pay‑point 3, which is the sanction he complains is disproportionate and, as a consequence, is not fair and reasonable.
  1. [99]
    Mr Manttan contends that the disciplinary penalty imposed is disproportionate when considering the factors contained in cl 8.5(d) of the Discipline Directive.
  1. [100]
    Clause 8.5(d) of the Discipline Directive provides:
  1. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee’s explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee’s ability to perform the duties of their position
  1. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. [101]
    Mr Manttan, in his written submissions, addressed many of these elements.

Seriousness of findings

  1. [102]
    Mr Manttan submits that the discipline decision overplayed the significance of the substantiated findings in that no harm to any student, staff member, parent, community member or to the Department was caused and that he did not personally benefit in any way. Mr Manttan submits that while he did not meet the standards required, the circumstances of each allegation was not considered and his explanation '… of the context was twisted and used to increase the penalty.'
  1. [103]
    I cannot accept these submissions.
  1. [104]
    Each of the six substantiated allegations were that Mr Manttan contravened, without reasonable excuse, either the Code or the Standard. At the material time, Mr Manttan was the Principal of the school. The contravention of the Code and the Standard occurred in respect of Mr Manttan's conduct as Principal. No allegation was made that he caused harm to any person or to the Department. No allegation was made that he stood to benefit personally from his contraventions of either the Code or the Standard. Those submissions therefore do not persuade me that the discipline penalty decision, in respect of the seriousness of the findings, was other than fair and reasonable .
  1. [105]
    It may be said that objectively, some of the substantiated allegations were more serious than others. The finding that Mr Manttan failed to comply with Departmental policies and/or procedures for the purchase of a Kubota mower or the purchase of data projectors, while serious, was not as serious as the inappropriate establishment and/or maintenance of a Facebook account for the school, the inappropriate taking of photographs of students using a personal mobile device and uploading photographs of students to a social media platform and his failure to ensure safe care and/or supervision of students.
  1. [106]
    However, viewed objectively, the substantiated allegations were serious having regard to the fact that they concerned his conduct as the Principal of the school.

Prior work record

  1. [107]
    Mr Manttan submits that given that he has no prior disciplinary or performance history in his 11 years of employment with the Department, the '… significant punitive penalties imposed, clearly demonstrates this was not adequately taken into account.'
  1. [108]
    I cannot accept this submission. There are two reasons for this.
  1. [109]
    First, Mr McKellar, in the decision at paragraph 10(a), expressly states that he took into account the fact that Mr Manttan has no disciplinary history. Mr McKellar expressly acknowledged that those facts weighed in his favour, however, he (Mr McKellar) did not consider that those facts outweighed the seriousness of Mr Manttan's conduct.
  1. [110]
    Mr McKellar's analysis is, in my view, fair and reasonable. The disciplinary penalty must be proportionate to the seriousness of the substantiated conduct. The substantiated allegations, for the reasons given above, are objectively serious having regard to the fact that at the time of his impugned conduct, Mr Manttan was Principal of the school. It seems to me that given that Mr Manttan had been appointed to that position, he should have been aware of the relevant provisions of the Code and the Standard, which, by his conduct, he breached without reasonable excuse. Indeed, having regard to paragraph 15 of the decision, it seems that Mr Manttan had been employed in Principal roles since 2015.
  1. [111]
    The fact that Mr Manttan has had, prior to that impugned conduct, a good disciplinary record, does not of itself mean that the disciplinary penalty was other than fair and reasonable.
  1. [112]
    Secondly, in the decision, Mr McKellar gives specific reasons as to why he was imposing the disciplinary action he imposed. Mr McKellar stated:
  1. I have serious concerns about the department's ability to hold the requisite trust and confidence that you are able to appropriately perform the role of a Principal, and appropriately enforce departmental policies and procedures within the school environment, in the future, in circumstances where:
  1. (a)
    your conduct and submissions in relation to Allegations Five, Six and Seven, indicates a lack of awareness of relevant policy, and you have admitted you were not aware of the relevant policy and procedural requirements. There was no apparent attempt on your behalf to inform yourself of the applicable policies at the time. I do not consider it would have been difficult for you to make enquiries with relevant departmental staff or access the relevant policy through the department's Intranet in order to inform yourself of your obligations. In particular, your lack of knowledge of the requirements of the Standard of Practice (relevant to Allegation Six) is particularly concerning given this document is a fundamental departmental policy; and
  1. (b)
    your submissions in your Response in relation to Allegations Seven, 10 and 12 demonstrate to me that you continue to lack appropriate knowledge as to the operation of departmental policies and procedures. For example:
  1. (i)
    you maintain that, in relation to Allegation Seven, you are 'certain' that a Record of Contact was created for yourself and [name of student's mother redacted], despite my previous advice to you that even if this was the case, it would not satisfy the requirements of the department's Obtaining and Managing Student Consent Procedure applicable at the relevant time; and
  1. (ii)
    your submission, in relation to Allegations 10 and 12, that obtaining quotes (during a purchasing process) is a task that could have been undertaken by any staff member in the school, external of any delegation, with the assistance of a completed PF003 form (Request for Quotation) is completely at odds with the clear wording of the Purchasing and Procurement Instructions that existed at the relevant time (Attachment 24; page 809) which state 'Quotation processes for purchases valued up to $100,000 can be undertaken by Purchasing Delegates in schools, regions and central office units provided that they have been appropriately trained', and the current Purchasing and Procurement Instructions which are similarly worded.
  1. I no longer have the trust and confidence in your ability to continue to occupy a senior leadership position such as Principal. You have demonstrated to me a concerning pattern of behaviour or tendency by you to ignore or be recklessly indifferent to your obligations under policies and procedures, and have breached the trust and confidence the department places upon Principals. Further, you have engaged in your conduct notwithstanding your length of service with the department, experience and training you have undertaken.
  2. As a Head of Program - Level 1, you will have less responsibility for overseeing the appropriate application of policies and procedures to tasks undertaken within a school. Additionally, you will have the benefit of supervision from more senior leaders within the school environment. It is my hope that through your role as a Head of Program - Level 1, you will have an opportunity to regain my trust in you as an employee of the department. Further, I am hopeful that the proposed disciplinary action demonstrates to you the seriousness with which the department views your conduct, and the opportunity to understand and reaffirm the department's expectations it holds towards Principals.
  3. Having regard to the above and the information before me, the likely impact on public and customer confidence in the department, including that the imposition of the proposed disciplinary action will demonstrate the seriousness with which the department addresses patterns of noncompliance with policy and procedural obligations occurring in positions of leadership, and the high standards departmental principals are expected to meet, I am satisfied the imposition of the disciplinary action detailed below is proportionate to the gravity of the disciplinary findings I have made, and is the appropriate disciplinary action to impose.[14]
  1. [113]
    This reasoning given by Mr McKellar, for the imposition of the disciplinary action he imposed against Mr Manttan, makes fair and reasonable sense when regard is had to the six substantiated allegations against Mr Manttan. The reasoning concerns:
  • Mr Manttan's failure, as Principal of the school, to be aware of the relevant policies and procedures;
  • as Head of Program - Level 1, Mr Manttan will have less responsibility for the appropriate application of policies and procedures in a school;
  • the maintenance of public and customer confidence; and
  • general deterrence in the sense of reinforcing the high standards expected of Principals.
  1. [114]
    By Mr McKellar's reasoning, I cannot form the view that the demotion or any of the other actions were punitive or that, in imposing the disciplinary actions, Mr McKellar did not take into account Mr Manttan's work history.

Subsequent work history and potential for modified behaviour

  1. [115]
    Mr Manttan submits that his recognition of his mistakes and positive performance in the past two years were persuasive factors in considering his potential for modified behaviour; and they were not properly considered when deciding to demote him.
  1. [116]
    Again, this matter was expressly taken into account by Mr McKellar in the decision.
  1. [117]
    Mr McKellar's reasoning about this matter does not indicate to me that, in respect of this issue, the decision was other than fair and reasonable. In the decision, Mr McKellar relevantly stated:
  1. I note the following matters which I have considered in relation to your past performance and performance since commencing alternative duties:
  1. (a)
    I have taken into account the fact that prior to the matters the subject of this disciplinary process, you have no prior disciplinary matters, and also note your submissions regarding what you say are your achievements as a Principal occurring throughout 2019. I accept that these matters weigh in your favour, however I do not consider they outweigh the seriousness of your conduct;
  1. (b)
    I have considered your submissions regarding your experience gained in your alternative duties role. I accept your submission that such matters demonstrate you may be capable of modified behaviour, however I do not consider they outweigh the seriousness of your conduct and note they do not appear to be directly relevant to your conduct the subject of the substantiated Allegations;
  1. (c)
    I note your submissions regarding the extra-curricular activities you have engaged in since commencing alternative duties; and
  1. (d)
    I have considered the professional development and training you have submitted you have undertaken since commencing alternative duties, including the Management Foundations Training. Noting this training includes a module on managing finance, I am satisfied that it is not necessary for you to repeat this training nor for you to complete Financial Management for Principals Training.
  1. For completeness, I have not made contact with the referees you have provided. You have been afforded the opportunity to provide information for me to consider in making my decision on disciplinary action and I have considered the information you have provided.
  1. [118]
    Clearly, Mr McKellar took this issue into account in making the decision. Mr McKellar's reasoning as to why Mr Manttan's performance in the two years since being directed to perform alternative duties did not persuade him (Mr McKellar) against imposing the proposed disciplinary action is, in my view, fair and reasonable.
  1. [119]
    In essence, Mr McKellar says that Mr Manttan's recent performance does not outweigh the seriousness of his impugned conduct. I accept that reason. Once again, Mr Manttan was Principal of the school at the time he engaged in the conduct the subject of the six substantiated allegations. It is that conduct against which Mr McKellar reasonably gauged Mr Manttan's ability to meet the conduct standards of a Principal.

Financial impact of penalty

  1. [120]
    Mr Manttan submits that the penalty will have a substantial financial impact in terms of accommodation and travel costs, reduction in income and superannuation. Mr Manttan submits that there will be a significant financial impact on him, which he estimates to be $161,272 assuming he receives no pay increases, no increases in superannuation and assuming he remains in the same position until his retirement (aged 60).
  1. [121]
    Mr Manttan also submits that his demotion will affect him (presently I assume) by the amount of $323.80 per fortnight.
  1. [122]
    Mr Manttan submits that Mr McKellar disregarded this issue.
  1. [123]
    There are three reasons why I cannot accept these submissions.
  1. [124]
    First, Mr McKellar did take this matter into account. In the decision, Mr McKellar stated:
  1. I have considered your submissions regarding the impact the proposed discipline, if imposed, will have on you. In this regard:
  1. (a)
    I note your submissions regarding the impact a demotion will have on your access to rental entitlements and associated moving costs. I accept that this may impact you financially, however departmental housing is a benefit afforded only when certain criteria are met, and I am not satisfied that a financial impact in this regard outweighs the seriousness of your conduct such that I should not impose the demotion;
  1. (b)
    while you have made submissions regarding the possible need to relocate out of Clifton should the proposed penalty be imposed, and have detailed the impacts this may have on your family, I note that you also appear to accept that this would be a personal choice for you;
  1. (c)
    in this regard, and in any event, the department's Teacher Transfer Guidelines provide that a transfer of up to 50 minutes driving time from a teacher's place of residence is considered reasonable;
  1. (d)
    I appreciate a demotion will have an immediate impact on your income and your superannuation. However, I do not consider that the financial detriment in this regard outweighs the seriousness of your conduct;
  1. (e)
    while I accept a demotion may impact your future income and superannuation, I have placed limited weight on your submissions in this regard, as they assume you remain in the same position and at the same paypoint with no future wage increase, I further note the proposed disciplinary action contains no restriction on your future ability to apply for positions above that of Heads of Program - Level 1; and
  1. (f)
    while I acknowledge your concern that the proposed disciplinary action will have on the Clifton community, I do not consider such submissions to be relevant to my decision on disciplinary action in relation to your substantiated conduct.
  1. [125]
    Secondly, as referred to by Mr McKellar, Mr Manttan's claimed loss to age 60 is speculative. It may well be that, between the date the disciplinary penalty is imposed and the date of his retirement or, at least, when Mr Manttan reaches 60 years of age, he is promoted to other positions and, or in the alternative, receives other pay increases and increases in superannuation.
  1. [126]
    Thirdly, it is obvious that there will be an immediate impact on Mr Manttan's remuneration, which he says will be of $323.80 per fortnight (which I assume to be a gross amount).
  1. [127]
    However, the aim of disciplinary proceedings is for the protection of the public[15] and the maintenance of public confidence.[16] Given the substantiated allegations, there has to be action taken which provides confidence to the public that the Department takes steps to ensure that its employees, including its Principals, comply with the Code and the Standard. The action has to be proportionate to the substantiated conduct of Mr Manttan. The reasons given by Mr McKellar for demoting Mr Manttan, set out earlier in these reasons at paragraph [112], gives reasons why the demotion of Mr Manttan is not only reasonably justified having regard to the substantiated allegations as they concerned Mr Manttan as an individual employee, but also give reasons why the demotion was reasonably justified to maintain public confidence that Principals will comply with the standards expected of them as set out in the Code and in the Standard.

Duplicity and punitive nature of penalty

  1. [128]
    There is nothing duplicitous in the penalty imposed by Mr McKellar. The penalty was a demotion, a reprimand, counselling and issuing a direction that Mr Manttan undertake certain training.
  1. [129]
    Furthermore, in the decision, Mr McKellar stated, based upon Mr Manttan's submissions to the second show cause, that Mr Manttan appeared to accept the proposed disciplinary action of a reprimand, counselling and to undertake training as necessary. Indeed in that response, on page 36 of 36, Mr Manttan submitted:
  • that he did not believe that the six substantiated allegations were sufficiently serious to warrant action beyond '… counselling, training, or a reprimand'; and
  • that he did not believe that a demotion was fair discipline for his actions and that he was willing to accept a reprimand, counselling and to undertake the proposed training as necessary.
  1. [130]
    In my opinion, having regard to the substantiated allegations, all the disciplinary sanctions imposed were warranted and proportionate.
  1. [131]
    The demotion imposed by Mr McKellar was proportionate for the reasons given by Mr McKellar in the decision, as referred to in paragraph [112] of these reasons.
  1. [132]
    It was appropriate that Mr Manttan be reprimanded given the deliberate conduct in which he engaged. Such sanctions signify the seriousness in which the Department views Mr Manttan's substantiated conduct.
  1. [133]
    It was also appropriate that Mr Manttan be counselled and that he undertake the training identified given the substantiated conduct.
  1. [134]
    The disciplinary decision was not unfair and unreasonable for duplicity. The disciplinary decision was not unfair and unreasonable because it was punitive.

Age of allegations

  1. [135]
    Mr Manttan submits that taking disciplinary action for allegations, which occurred over two years ago, breached the fair hearing rule. In support of that contention Mr Manttan cites (as best as I can understand his submission because the citation was incomplete) Re Minister for Immigration and Multicultural and Indigenous Affairs v Lam ('Lam').[17] Mr Manttan does not refer to any particular passage of Lam in support of his submission.
  1. [136]
    I cannot accept this submission.
  1. [137]
    In Lam, Gleeson CJ stated that whether one talks in terms of procedural fairness or natural justice, the concern of the law is to avoid practical injustice, such that a person lost the opportunity to advance their case.[18]
  1. [138]
    Mr Manttan does not particularise how the age of the allegations affected his ability to respond to them.
  1. [139]
    Having regard to his responses to the first show cause and the second show cause, Mr Manttan lost no opportunity to advance his case in respect of the allegations.

Predetermination and bias

  1. [140]
    Mr Manttan submits that:
  • a decision maker must be objective, impartial and not prejudge the decision, citing Kioa v West;[19]
  • the Department commenced a disciplinary process, indicative of prejudgement, before he was given any opportunity to respond to the concerns;
  • he was immediately suspended and subjected to a two year investigation into 19 allegations, with only six being substantiated;
  • it was evident from Mr McKellar's strong and emotive language he had a predetermined view and did not objectively assess the evidence;
  • the decision inaccurately represented many of his submissions; for example, parity of treatment is a relevant consideration, but when he identified circumstances where disciplinary action had not been taken against other Principals, Mr McKellar found that this meant he (Mr Manttan) was not accepting responsibility or acknowledging any wrongdoing which was factually incorrect; and
  • similarly, Mr McKellar stated that Mr Manttan ignored or was recklessly indifferent to his obligations under relevant policies and procedures, however, there is no objective evidence to support that finding and it is totally inconsistent with his (Mr Manttan's) explanations in that he was cooperative throughout the prolonged disciplinary process which was not taken into account in determining the disciplinary penalty.
  1. [141]
    I cannot accept most of these submissions. There are a number of reasons.
  1. [142]
    First, Ms Valentine made the eight allegations against Mr Manttan. It was a different person, Mr McKellar, who determined if they were substantiated.
  1. [143]
    Secondly, there is no evidence before me that Mr McKellar has prejudged Mr Manttan. From the decision, it is clear that Mr McKellar considered all of Mr Manttan's submissions and gave clear reasons for the decisions he made in substantiating Allegations Five, Six, Seven, Ten, Twelve and Thirteen and in imposing the disciplinary action.
  1. [144]
    Thirdly, the fact that of the 19 allegations investigated, of which six were ultimately found to be substantiated, cannot logically mean that Mr Manttan has been prejudged and was the subject of bias in the disciplinary findings decision and in the discipline decision. Rather, those facts tend to indicate that Ms Valentine and Mr McKellar made the decisions they made based upon a fair and proper consideration of the material before them.
  1. [145]
    In addition, the fact that Mr Manttan was assigned alternative duties cannot logically mean that he was prejudged. I have not been provided with the reasons why Mr Manttan was temporarily assigned alternative duties. However, the combined effect of s 137(1) and s 137(3) of the PS Act, is that if a chief executive reasonably believes a public service employee is liable to discipline under a disciplinary law, then the employee can be suspended from duty; however, before suspending the person, the chief executive must consider all reasonable alternatives including a temporary transfer that is available. Assuming this was the reason for the temporary assignment, it was fair and reasonable and cannot logically point to prejudgment.
  1. [146]
    Fourthly, having read the decision, I do not accept that Mr McKellar used strong and emotive language. It seems to me that Mr McKellar, in a methodical and clear way, addressed each of the responses made by Mr Manttan to the second show cause and did so in a way where, while he was direct in some of his conclusions, there was a proper basis to come to those conclusions. Mr McKellar did not use infelicitous language.
  1. [147]
    Fifthly, I cannot accept the allegation that Mr McKellar misrepresented Mr Manttan's submission about parity of treatment. As best as I can make out (because Mr Manttan does not specify the particular part of Mr McKellar's decision upon which this submission is based), Mr Manttan is referring to Mr McKellar's decision at paragraph 4(e)(ii) (concerning Allegation Five) and paragraph 7(a). Those parts of the decision deal with Mr Manttan's response, relying on the comments of Ms Kellie Reid, External Auditor, about similar conduct occurring in other schools. However, Mr McKellar goes into some detail distinguishing the conduct referred to by Ms Reid compared to Mr Manttan's substantiated conduct. It was in that context Mr McKellar stated that Mr Manttan was attempting to downplay his conduct.
  1. [148]
    Sixthly, Mr McKellar's conclusion that Mr Manttan ignored or was recklessly indifferent to his obligations under the relevant policies and procedures (paragraph 5 of the decision) was given in the context that Mr McKellar was not satisfied, even if he accepted Mr Manttan's submissions at face value, that those submissions excused Mr Manttan's behaviour. In my opinion, the objective evidence supporting Mr McKellar's conclusion that Mr Manttan ignored or was recklessly indifferent to his obligations under the relevant policies and procedures was the fact that Mr Manttan did not comply with the relevant policies and procedures despite the fact he was employed as Principal of the school.
  1. [149]
    Finally, even assuming that the fact Mr Manttan was cooperative throughout the prolonged disciplinary process was not taken into account by Mr McKellar, that fact could not outweigh, in my opinion, the seriousness of the substantiated allegations against Mr Manttan as Principal of the school. That assumption does not render the decision to be other than fair and reasonable.

Delay and suspension

  1. [150]
    Mr Manttan contends that because he had been 'suspended' on alternative duties for 23 months with the investigation and disciplinary process taking two years, that has had a significant impact on his health and finances and that those factors were not properly considered when determining the disciplinary penalty.
  1. [151]
    In support of this contention, Mr Manttan refers to QIRC Notable Case A7415, which Mr Manttan states as authority for the proposition that an unacceptable length of time (between the date of the complaint and the date of disciplinary action) without reasonable justification and the impact the suspension should have been taken into account when determining the disciplinary action.
  1. [152]
    In QIRC Notable Case A7415, the facts were that the employee in that case had been suspended on pay for a period of 18 months between the date of the last complaint and the date the disciplinary action was issued. In the present case, Mr Manttan was not suspended from employment but was performing alternative duties.
  1. [153]
    As the Department submitted, Mr Manttan raised the same issue in the second show cause response. Mr McKellar, in the decision, referred to that submission and stated that Mr Manttan had not provided any medical evidence to support those submissions. Mr McKellar also stated that the decision to place Mr Manttan on alternative duties, whilst capable of having various impacts on Mr Manttan, was lawfully made.
  1. [154]
    Despite these matters being addressed in the decision, in my view, a period of two years is too long for the Department to have completed the investigation and disciplinary process. The Department advances no reasons for the delay. The fact that these issues are not, as submitted by the Department, expressly referred to in cls 8.5 and 8.6 of the Discipline Directive, does not mean they are immaterial, particularly when, as in the present case, they have been raised by the employee about whom a discipline decision is to be made.
  1. [155]
    However, whether a period of two years to complete the disciplinary process should have an impact on the ultimate discipline decision depends upon all the circumstances of the case. This is because s 188(1) of the PS Act provides that the employee's chief executive may take the action, order the action be taken, that the chief executive considers reasonable in the circumstances.
  1. [156]
    For the reasons I gave earlier, having regard to all the circumstances, the discipline decision, having regard to the substantiated allegations against Mr Manttan, and having regard to their seriousness and the fact that he was the Principal of the school, was fair and reasonable.

Conclusion as to whether the disciplinary decision was fair and reasonable

  1. [157]
    For the reasons I have given, the discipline decision was fair and reasonable.

Conclusion

  1. [158]
    The question in this case was whether the disciplinary findings decision and the discipline decision were fair and reasonable.
  1. [159]
    For the reasons I have given, the disciplinary findings decision and the discipline decision were fair and reasonable.
  1. [160]
    The disciplinary findings decision and the discipline decision are confirmed.
  1. [161]
    For the avoidance of doubt, I will revoke the stay I issued on 18 November 2021.

Orders

  1. [162]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decisions appealed against are confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the discipline decision appealed against, made on 18 November 2021, is revoked.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203; (2020) 305 IR 311 ('Morison'), [4]‑[5].

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

[3] Morison (n 1) [6].

[4] Industrial Relations Act 2016 s 562B(3).

[5] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[6] [2015] QSC 111.

[7] Minister for Immigration and Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, [57] (Gageler and Gordon JJ).

[8] [2014] FWC 5894 ('Camilleri'), [55] (Senior Deputy President O'Callaghan).

[9] [2021] QIRC 267, [90].

[10] Camilleri (n 8), [55].

[11] Ibid [58].

[12] The name of this student is not published to protect the student's identity.

[13] The name of this student is not published to protect the student's identity.

[14] Footnotes omitted.

[15] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President).

[16] Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, 412 (Brennan J).

[17] [2003] HCA 6; (2003) 214 CLR 1.

[18] Ibid [37]-[38].

[19] [1985] HCA 81; (1985) 159 CLR 550.

Close

Editorial Notes

  • Published Case Name:

    Manttan v State of Queensland (Department of Education)

  • Shortened Case Name:

    Manttan v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 238

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    22 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
Camilleri v IBM Australia Limited [2014] FWC 5894
4 citations
Jump To
Cite 1 - [2014] FWC 5894
Cite 2 - [2014] FWC 5894
Cite 3 - [2014] FWC 5894
Cite 4 - [2014] FWC 5894
Kioa v West [1985] HCA 81
2 citations
Jump To
Cite 1 - [1985] HCA 81
Cite 2 - [1985] HCA 81
Kioa v West (1985) 159 C.L.R 550
2 citations
Jump To
Cite 1 - (1985) 159 C.L.R 550
Cite 2 - (1985) 159 C.L.R 550
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
2 citations
Jump To
Cite 1 - (2015) 256 CLR 326
Cite 2 - (2015) 256 CLR 326
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
2 citations
Jump To
Cite 1 - [2015] HCA 40
Cite 2 - [2015] HCA 40
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
3 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Cite 3 - (2003) 214 CLR 1
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Morison v State of Queensland (Department of Child Safety, Youth and Women) (2020) 305 IR 311
3 citations
Jump To
Cite 1 - (2020) 305 IR 311
Cite 2 - (2020) 305 IR 311
Cite 3 - (2020) 305 IR 311
Nesbit v Metro North Hospital and Health Service [2021] ICQ 5
2 citations
Jump To
Cite 1 - [2021] ICQ 5
Cite 2 - [2021] ICQ 5
Nguyen v State of Queensland (Queensland Health) [2021] QIRC 267
2 citations
Jump To
Cite 1 - [2021] QIRC 267
Cite 2 - [2021] QIRC 267
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Police Service Board v Morris (1985) HCA 9
2 citations
Jump To
Cite 1 - (1985) HCA 9
Cite 2 - (1985) HCA 9
Police Service Board v Morris & Martin (1985) 156 CLR 397
2 citations
Jump To
Cite 1 - (1985) 156 CLR 397
Cite 2 - (1985) 156 CLR 397
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
2 citations
Jump To
Cite 1 - [2003] HCA 6
Cite 2 - [2003] HCA 6
Vega Vega v Hoyle [2015] QSC 111
2 citations
Jump To
Cite 1 - [2015] QSC 111
Cite 2 - [2015] QSC 111

Cases Citing

Case NameFull CitationFrequency
Gurdler v State of Queensland (Queensland Health) [2024] QIRC 2132 citations
Turner v Queensland Ambulance Service [2022] QIRC 4712 citations
1

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