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  4. Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2022] QIRC 244

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Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2022] QIRC 244

Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2022] QIRC 244

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 244

PARTIES:

Robynson, Alexander Tupae

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO.:

PSA/2021/363

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

23 June 2022

MEMBER:

HEARD AT:

Power IC

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:

Crime and Corruption Act 2001 (Qld)

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

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

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)

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

Reasons for Decision

Introduction

  1. [1]
    Mr Alexander Tupae Robynson ('the Appellant') is employed by the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) ('the Respondent') in the role of Director, Office of the Deputy Director-General ('ODDG').
  1. [2]
    By letter dated 21 September 2021, Ms Shannan Quain, Chief Human Resources Officer/Senior Executive Director, People and Culture of the Respondent informed the Appellant of the decision to impose a disciplinary action of a reduction in remuneration level from SO2 to SO1 for a period of 12 months, pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act'):
  1. [3]
    By appeal notice filed on 13 October 2021, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act.

Appeal principles

  1. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] 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,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to impose the disciplinary action of a reduction in remuneration level from SO2 to SO1 for a period of 12 months 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. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (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

  1. [7]
    On 14 May 2020, the Respondent issued a letter to the Appellant, advising of the allegations that were made against him. The Appellant was informed that an external investigation would be conducted and that, if proved, could amount to 'corrupt conduct' under the Crime and Corruption Act 2001 (Qld). The allegations outlined in the letter was as follow:
  1. It is alleged that between 1 June 2018 and 15 July 2018, Mr Robynson has, or caused to have, appointed a family friend/acquaintance to a position of Administrative Officer – A03 without following a proper recruitment process.
  2. It is alleged that between 1 August 2018 and 30 September 2018, Mr Robynson has, or caused to have, appointed a family friend/acquaintance to a position of Review Officer – AO5 without following a proper recruitment process.
  1. [8]
    By letter dated 4 March 2021, the Appellant was issued with a notice to show cause wherein the Appellant was advised that the external investigation had finalised and that the investigator concluded, on the balance of probabilities, that the allegations made against the Appellant were capable of being substantiated. The Appellant was provided with 14 days to show cause as to why a disciplinary finding should not be made against him in relation to the allegations. The particulars of the two allegations were outlined as follow:

Allegation one

…

Particulars

…

  • On 1 June 2018, you sent Mr Lachlan Bannerman an email in which you invited him to apply for the temporary AO3 position… Your email to Mr Bannerman, with a carbon copy to Ms Hope Lewis (Ms H Lewis), had the subject line 'EOI for AO3' and attached was a copy of the AO3 role profile. The role profile outlined that the AO3 Administration Officer position was temporary full-time, until 3 December 2018 and that the closing date for applications was 11 June 2018…
  • Ms Liliana Pacey, Manager of the Complaints Unit was listed as the contact officer on the role profile. However, despite Ms Pacey's name and details being listed, by way of reply email on 5 June 2018, Mr Bannerman submitted to you his application which included a copy of his resume and covering letter… On the same day, you forwarded Mr Bannerman's application to Ms Pacey…
  • On 14 June 2018, you sent Ms Pacey an email enquiring about the status of the AO3 recruitment process and whether it had closed. Ms Pacey replied to your email stating that the EOI had closed and that a total of three applications had been received which she would look at tomorrow. You responded by saying 'Ok – no worries. Do you want to interview? Happy to help'. Ms Pacey responded to you stating 'I'll review applications first. But any assistance would be greatly appreciated.'…
  • On 25 July 2018, Ms Pacey sent you an email advising that the preferred applicant had secured another position. Ms Pacey asked you to consider the remaining two applicants, both of which were external to the department, Mr Bannerman and another applicant with the initials AC. On 26 June 2018, you respond to Ms Pacey stating that you have reviewed both applications, and suggest that Mr Bannerman is more suitable given his work within the Queensland Public Service in both administration and customer service roles. You requested Ms Pacey to undertake referee checks and if suitable, to make contact with his supervisor for a start date… Upon advising Ms Pacey of your recommendation, you did not disclose that you knew Mr Bannerman in a private capacity.
  • Further, at no stage of the recruitment and selection process did you submit a conflict of interest declaration stating that you knew Mr Bannerman in a private capacity.
  • On 3 July 2018, Ms Prenner sent you an email titled 'Staff Appointment Application – Lachlan Charles Bannerman (1438979). At the top of this email it read 'Notice to Approving Officer: Staff Appointment for Approval'. In order to approve such request, the email reminded you of your obligation, as approving officer, to ensure you held appropriate HR Delegation to approve the application and reminded you to confirm the details of the appointment were correct and that the application was in accordance with the relevant Directive/Corporate Standard. In response to this request, you replied to Ms Prenner on 4 July 2018, stating 'Sorry – am I a level 4 HR Delegation? Hahahahhaa'…
  • On 4 July 2018, in your role as delegate and approver, endorsed the appointment of Mr Bannerman to the role of AO3 Administration Officer, for the period 16 July 2018 to 3 December 2018…
  • On 16 July 2018, Mr Bannerman, commenced in the role of AO3 Administration Officer.
  • Mr Bannerman's long-term partner is Ms H Lewis. Mr Bannerman and Ms Lewis' relationship existed prior to Mr Bannerman's engagement with the department. You and Ms H Lewis have previously worked together.
  • Ms H Lewis has a sister, Kirryn Lewis (Ms K Lewis). During your interview with the investigator from Providence HR, you disclosed that you and Ms K Lewis had a personal relationship since 2015. You also disclosed that this relationship progressed over the years and you became an 'exclusive couple' / had a 'formal' relationship at some stage during mid- late 2018.

…

  • Queensland Shared Services has confirmed that on 28 January 2017, you changed your residential address in the department's payroll/personnel system… On 3 September 2018, Ms K Lewis updated her residential address… These records indicate that both you and Ms K Lewis resided at the same residence, between the period 3 September 2018 and 12 February 2020, at which time you updated your details to a residential address located in Yeronga.

…

Allegation two

…

Particulars

  • In your role as Director, ODDG, with the then DCSYW, you had oversight of the Complaints Unit.
  • On 29 August 2018, Ms Pacey sent you an email titled 'AO5 and AO3'. Ms Pacey's email stated that she had reviewed Mr Bannerman's application for the AO5 position and that she would like to consider him for the position. She advised that she would organise a meeting for Ms Kathleen Lewis Principal Advisor, Complaints Unit and her to discuss with Mr Bannerman. You immediately replied to Ms Pacey's email endorsing this approach…
  • On 30 August 2018, Mr Bannerman was interviewed by Ms Pacey and Ms Kathleen Lewis, for the role of AO5 Review Officer, within the Intake Team. Subsequent to this meeting, Ms Pacey sent you an email on 30 August 2018 advising that the meeting with Mr Bannerman went well and that 'he is very keen and we're keen to make it work'. Ms Pacey proposed a 10 September 2018 start date, and sought your confirmation to proceed to tap Mr Sean Hayden on the shoulder for Mr Bannerman's subsequent backfill in the AO3 Administration Officer position…
  • On 3 September 2018, in your role as delegate and approver, endorsed the appointment of Mr Bannerman to the role of AO5 Review Officer for the period 10 September 2018 until 31 December 2018…
  • On 3 September 2018, you sent an email to staff within the complaints unit titled 'Appointments in Complaints Unit - AO5 and AO3 - Congrats Lachlan and welcome Sean :)'… This email confirmed that Mr Bannerman was successful in a recent Expression of Interest for the role of AO5 Review Officer within the Intake Team, an appointment which he would take up effective 10 September 2018 until the end of that year. As a result of the vacancy Mr Bannerman's promotion created, Mr Hayden was engaged to fulfil the role of AO3 Administration Officer. Mr Hayden initially commenced employment with the department on 17 September 2018, on a short-term temporary contract until 4 December 2018, however he later received further temporary extensions.
  • On 17 May 2019, in your role as delegate and approver, endorsed the further extension of Mr Bannerman in the role of AO5 Review Officer for the period 1 July 2019 to 27 September 2019…
  1. [9]
    The Appellant provided a response to the notice to show cause on 23 March 2021.
  1. [10]
    By letter dated 2 August 2021, the Appellant was issued with a disciplinary finding letter, advising that the allegations had been substantiated on the balance of probabilities. The disciplinary finding letter informed the Appellant that consideration was being given to impose a disciplinary action of a reduction in the Appellant's classification from SO3 to AO8.4 and consequential change of duties. The Appellant was provided seven days to provide a response to the proposed disciplinary action. The Appellant provided a response to the proposed disciplinary action on 16 August 2021.
  1. [11]
    By letter dated 21 September 2021, a disciplinary action decision letter was issued to the Appellant where Ms Quain, noting a correction of the Appellant's correct classification level, determined to impose a disciplinary action of a reduction in remuneration level from SO2 to SO1 for a period of 12 months, the decision subject to this appeal.

Grounds of Appeal

  1. [12]
    In the appeal notice, the Appellant outlines the following grounds of appeal, that:
  1. (a)
    the disciplinary action is unreasonable;
  1. (b)
    the investigation and disciplinary process has not been timely, fair or appropriate under the circumstances given the relatively low complexity of the matter; and
  1. (c)
    there has been an inconsistency of evidence relied on by the decision maker, breaching the natural justice principle and bias rule.
  1. [13]
    The Appellant relies on the case of Nguyen v State of Queensland (Queensland Health) ('Nguyen'),[5] and contends that the matter could have been dealt with through appropriate management action before commencing disciplinary action.

Submissions

  1. [14]
    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. [15]
    The Respondent submits that the Appellant, as a Director, is a senior employee of the Respondent and holds level 5 human resources delegations.
  1. [16]
    The Respondent submits that the decision to take disciplinary action, rather than management action, was reasonably open to the decision maker having regard to the matters referred to in Directive 14/20 Discipline ('the Directive'), which included the following:

a. The allegations were assessed as a public interest disclosure and corrupt conduct and referred to the CCC. The Appellant was notified of this in the decision-maker's letter dated 14 May 2021 and in the first show cause notice.

b. Management action was not an appropriate response having regard to the serious nature of the conduct. The Appellant failed to declare and/or manage a conflict of interest arising from the Appellant's personal relationship/acquaintance with Mr Bannerman on two occasions. The seriousness of the Appellant's conduct is compounded by the fact that he is a senior officer with more than 12 years of experience and at the relevant time held a position which was responsible for overseeing the Department's Complaints Unit. It was incumbent on the Appellant to lead by example when a conflict arose, or at the very least, seek advice in respect of his obligations.

c. The Appellant failed to declare and/or manage a conflict of interest arising from the Appellant's personal relationship/acquaintance with Mr Bannerman on two occasions. The failure to declare a conflict of interest was not an isolated or 'one-off' incident and was a serious departure from the Appellant's obligations as a Department employee.

d. The fact that the conduct does not fall within the examples given in the Discipline Directive 14/20 at paragraph 7.3 does not mean it is conduct in relation to which disciplinary action cannot be taken. The allegations were assessed as a public interest disclosure and corrupt conduct, and on this basis the Appellant's conduct is not inconsistent with the examples given in paragraph 7.3 of Directive 14/20, namely maladministration.

e. During the disciplinary process the Appellant disputed the Allegations and continues to dispute the existence of a conflict of interest in respect of Allegation 1. This does not suggest that management action would be effective in mitigating the risk of the Appellant engaging in the conduct again in the future. While the Appellant has expressed remorse for his conduct, he continues to dispute the findings of the investigation and the basis upon which a disciplinary finding was made against him in respect of Allegation 1. It is not to the point that Mr Bannerman no longer works for the Department.

f. The Appellant's conduct during the investigation and disciplinary process was not full and frank. In particular:

i. In his interview, the Appellant had asserted he 'didn't personally take steps to have Mr Bannerman appointed through [the AO3] process' when in fact, he recommended that Mr Bannerman be offered the AO3 position and then formally approved his appointment on 4 July 2018.

ii. In the Appellant's response dated 16 August 2021, he submitted that during the period relevant to Allegation 1, he did not have a personal relationship with Ms Hope Lewis which is inconsistent with evidence he gave at interview.

g. Early intervention to address the conduct at the relevant time was not an option noting the allegations did not come to the Department's attention until 2020.

h. The decision-maker took into consideration the Appellant's otherwise clear disciplinary history but did not consider this outweighed the seriousness of the conduct.

  1. [17]
    The Respondent submits that the decision maker considered the adverse impacts of the disciplinary action and the remorse demonstrated by the Appellant and adjusted the disciplinary action to a lesser severity after consideration was given to all matters. The Respondent submits that the imposition of management action or a penalty lower than which was imposed would not adequately address the seriousness of the Appellant's conduct and his lack of candour during the investigation and disciplinary process.
  1. [18]
    The Respondent submits that the allegations related to the Appellant's conduct in 2018 and only came to the Respondent's attention in 2020. The Respondent submits that at no point did the Appellant notify anyone of his behaviour or declare a conflict of interest. The Respondent highlights that the Respondent took the necessary time to investigate the circumstances surrounding the allegations before proceeding with the matter to ensure all information available was considered. The Respondent submits that once the investigation had commenced, the process took its course in an appropriate manner considering the seriousness of the allegations.
  1. [19]
    The Respondent submits that the Appellant was not disadvantaged or prejudiced by any delay given the Appellant was able to provide detailed responses to the allegations during his interview with the investigator and throughout the disciplinary process.
  1. [20]
    The Respondent rejects the Appellant's contention that the Appellant has not been provided natural justice during the disciplinary process. The Respondent submits that it was reasonable and appropriate for the decision maker to refer to evidence annexed to the investigation report when considering the Appellant's submissions throughout the disciplinary process and that there was no change in the evidence considered by the decision maker. Rather, it was necessary and appropriate for different pieces of evidence to be referred to by the decision maker in responding to various submissions made by the Appellant during the disciplinary process.

Appellant's submissions

  1. [21]
    The Appellant, in his submissions, acknowledges the seriousness of the allegations, submitting that he has also shown deep remorse for the behaviour alleged. However, the Appellant submits that he genuinely and honestly did not believe a conflict of interest arose between the Appellant and Mr Bannerman and disagrees that the circumstances in 2018 gave rise to a conflict of interest. The Appellant maintains that he did not know Mr Bannerman personally and their personal relationship only grew after he was appointed to the role through their respective partners.
  1. [22]
    The Appellant submits that for the Respondent to state that the allegations were not isolated or 'one off' incidents is unreasonable and that this was the first time in his career in the public service that he has been subject to professional standards matters or allegations relating to conflicts of interest.
  1. [23]
    The Appellant agrees with the Respondent that he continues to dispute the findings by the decision maker and that it is irrelevant that Mr Bannerman no longer works for the Respondent. The Appellant maintains, however, that in accordance with the Directive, early intervention could have occurred at the time the Respondent was made aware of the allegations in 2020. The Appellant submits that immediate and effective management action through a warning, further training and an ability to correct the behaviour was open to the decision maker in 2020. Therefore, the decision to take disciplinary action was unreasonable.
  1. [24]
    The Appellant disagrees that the reduction in the severity of penalty was a mitigating factor and submits that the pay level is irrelevant to whether disciplinary action should have been taken.
  1. [25]
    The Appellant maintains that the matter could have been dealt with through appropriate management action before commencing disciplinary action for the following reasons:

- That management action to correct the conduct concerns would serve to "eliminate or effectively control the risk to health and safety posed".

- There has been no previous management action taken to rectify the alleged behaviour in line with the Discipline Directive 14/20

-These allegations are "isolated incidents" and could have been dealt with at the time in 2020 through appropriate management action. I am a committed public servant and have been for 15 years. My record demonstrates this given these two incidents in a two-month period over 15 years.

-Despite the decision maker stating the serious nature of the allegations and that management action would not have any impact, there is no evidence to suggest I would not benefit from further training, a warning or a reprimand to remind the importance of maintaining integrity in recruitment processes.

  1. [26]
    The Appellant acknowledges that investigators should take the time to investigate serious matters and that may take time given various factors, however, maintains that this matter had two allegations that were not complex. The Appellant submits that for the disciplinary process to progress for nearly 18 months is disproportionate to the elements of the allegations.
  1. [27]
    The Appellant further maintains that the disciplinary process has not been timely given the relatively low complexity of the matter and is unreasonable, outlining the following:

- The first/initial letter received by the appellant was dated 14 May 2020 advising that an investigation was underway and an external party would conduct.

- The investigation process took a further 8 months to be finalised – date of report was 10 December 2020

- Approximately 4 months later, the first Notice to Show Cause letter was received on 9 March 2021.

- Approximately 5 months later, the second Notice to Show Cause letter was received on 3 August 2021.

- The final decision letter was received on 22/9/2021.

  1. [28]
    The Appellant submits that no delay was attributed to the Appellant other than seeking of one extension due to the COVID-19 lockdown.
  1. [29]
    The Appellant refers to the submissions made in the appeal notice with respect to the breaching of the bias rule under the principles of natural justice. Those submissions referred to are as follow:

…

  1. From the initial Notice to Show Cause Letter 1 (received on 9 March 2021), the decision maker stated a conflict of interest arose and therefore the allegations were capable of being substantiated due to the Mr Robynson's relationship with Ms Kirryn Lewis, sister of Ms Hope Lewis, who was in an intimate relationship with Mr Lachlan Bannerman. The decision maker relied on evidence from the Investigation Report that this created a sufficient nexus between Mr Alex Robynson and Mr Lachlan Bannerman and therefore there was an acquaintance relationship.
  2. By the Notice to Show Cause Letter 2 (received on 3 August 2021), the Decision Maker no longer relied on the nexus relationship between Mr Robynson and Ms Kirryn Lewis that created a conflict of interest between Mr Robynson and Mr Bannerman. Rather, the Decision Maker relied on Mr Lachlan Bannerman's evidence that he had "probably" met Mr Robynson once or twice prior to his appointment and emails between the two that there was an acquaintance relationship. Mr Robynson maintains to this day and his evidence, which was not accepted, was he had never met Mr Bannerman had never met but knew of Mr Bannerman through a work colleague, Ms Hope Lewis, who he afforded the opportunity to apply for the EOI.
  3. By the final decision letter (received on 22 September 2021), the decision maker stated that "even if I accept you had not met Mr Bannerman prior to 1 June 2018 (which I do not), I consider the fact that he was the partner of your "personal friend" Ms Hope Lewis at the time you recommended him for appointment. The decision maker then relies on comments from Mr Robynson from his interview in July 2020 to state why there was a personal relationship with Ms Hope Lewis.

…

  1. [30]
    The Appellant agrees with the Respondent that decision makers can rely on all of the evidence provided to them to make a determination, however, submits that the evidence being relied on by the decision maker that allegedly gave rise to a conflict of interest between the Appellant and Mr Bannerman has changed with each letter throughout the process. The Appellant further submits that it was incumbent on the decision maker to ensure the specific evidence being relied on to support their view/argument was clearly articulated in the first notice to show cause letter and that it not be changed three times over the course of the show cause process. The Appellant submits that such changes in evidence relied on breaches the natural justice principles, namely, the bias rule.

Consideration

  1. [31]
    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. [32]
    I note the Appellant's appeal notice include submissions in relation to the decision to substantiate the allegations. An appeal with respect to the decision to substantiate the allegations, a disciplinary finding, could have been appealed as a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act within the 21 day period following that decision.[6] Although the particulars of the allegations may be considered as part of the consideration as to the reasonableness of the penalty, this appeal is to determine whether the decision to impose the disciplinary penalty was fair and reasonable.
  1. [33]
    The first of the Appellant's grounds of appeal is that the disciplinary action is unreasonable on the basis that the conduct should have been subject to management action in accordance with the Directive. The Appellant submits that immediate and effective management through a warning, further training and an ability to correct the behaviour was open to the decision maker. The Appellant states that 'there is no evidence to suggest I would not benefit from further training, a warning or a reprimand to remind the importance of maintaining integrity in recruitment processes'.[7]
  1. [34]
    Clause 7.3 of the Directive outlines the matters that must be considered when determining to impose disciplinary action for substantiated conduct. Clause 7.3(b) states that the chief executive must consider whether management action is appropriate based on the nature of the alleged conduct, 'for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration'. In considering the requirements of cl 7.3(b), the Respondent submits that the conduct was not inconsistent with maladministration. I note that the examples in cl 7.3(b) are not exhaustive and other types of conduct may also be subject to disciplinary action. The conduct may well be considered maladministration, however even if it is characterised another way it was open to the Respondent to determine that management action was not appropriate as it was unlikely to address the matter.
  1. [35]
    The Respondent's determination that management action was not appropriate in the circumstances did not require evidence that the Appellant would not benefit from management action such as further training or a warning, rather, it required a determination that management action was not likely to address and/or resolve the work performance matter. In circumstances where the Appellant had over a decade's experience in the public service and held a position overseeing the Complaints Unit, it was open to the Respondent to determine that failure to declare and/or manage a conflict of interest was unlikely to be addressed with management action.
  1. [36]
    In addition to the seriousness of the conduct, the Respondent determined that disciplinary action was appropriate on the basis that the Appellant's conduct during the investigation and disciplinary process was not full and frank. The Respondent submits that in his interview, the Appellant asserted that he did not personally take steps to have Mr Bannerman appointed through the AO3 process when, in fact, he recommended that Mr Bannerman be offered the AO3 position and then formally approved his appointment. The Respondent also submitted that the Appellant asserted that he did not have a personal relationship with Ms Hope Lewis which was inconsistent with the evidence given at interview. In circumstances in which the Appellant disputes the existence of a conflict of interest in respect of the first allegation, and was less than forthright during the investigation process, it was open to the Respondent to determine that management action was unlikely to address the matter.
  1. [37]
    The Appellant referred to Nguyen in support of his submission that the matter should have been addressed with appropriate management action before commencing disciplinary action. The appeal in Nguyen was against a disciplinary finding only and a disciplinary action was proposed but no disciplinary action decision had yet been made. In those circumstances, and in consideration of the determination that not all allegations were capable of substantiation, the decision in Nguyen is of limited assistance in this matter.
  1. [38]
    A further ground of appeal outlined by the Appellant was that the investigation and disciplinary process has not been timely, fair or appropriate under the circumstances given the relatively low complexity of the matter.
  1. [39]
    It appears that although the relevant conduct took place in 2018, the matter only came to the attention of the Respondent in 2020. The Respondent took the required time to investigate the circumstances before proceeding to a show cause process. The Appellant has not identified any prejudice or practical injustice suffered as a result of the time taken to finalise the process. Procedural fairness was afforded to the Appellant, including an extension of time to provide submissions, and such processes necessarily take time. I am not persuaded that the length of time taken to investigate the matter to allow for a procedurally fair process to occur was unreasonable.
  1. [40]
    The last ground of appeal was the evidence relied on by the decision maker, which the Appellant submits, breached the natural justice principle and bias rule. The Appellant submits that the decision maker stated the allegations were capable of being substantiated in the initial show cause letter due to his relationship with Ms Kirryn Lewis, sister of Ms Hope Lewis, who was in an intimate relationship with Mr Bannerman. The decision maker relied on the investigation report that this created a sufficient nexus between the Appellant and Mr Bannerman to establish an acquaintance relationship. The Appellant submits that, in the show cause letter of 3 August 2021, the decision maker no longer relied on the relationship between the Appellant and Ms Kirryn Lewis to establish a conflict of interest, rather, the decision maker relied on Mr Bannerman's evidence that he had 'probably' met the Appellant once or twice prior to his appointment and emails between the two that there was an acquaintance relationship. In the decision letter, the decision maker states that 'even if I accept that you had not met Mr Bannerman prior to 1 June 2018 (which I do not), I consider the fact that he was the partner of your 'personal friend' Ms Hope Lewis at the time your recommended him for appointment'. The decision maker then relies on comments from the Appellant from his interview to state why there was a personal relationship with Ms Hope Lewis.
  1. [41]
    The Appellant agrees with the Respondent that decision makers can rely on all of the evidence provided to them to make a determination, however, submits that the evidence being relied on by the decision maker that allegedly gave rise to a conflict of interest between the Appellant and Mr Bannerman has changed with each letter throughout the process. The Appellant further submits that it was incumbent on the decision maker to ensure the specific evidence being relied on to support their view was clearly articulated in the first notice to show cause letter and that it not be changed three times over the course of the show cause process. The Appellant submits that such changes in evidence relied on breaches the natural justice principles, namely, the bias rule.
  1. [42]
    The Respondent submits that it was appropriate for the decision maker to refer to evidence annexed to the investigation report when considering the Appellant's submissions throughout the disciplinary process and there was no change in the evidence considered by the decision maker. The Respondent submits that it was necessary and appropriate for different pieces of evidence to be referred to by the decision maker in responding to various submissions made by the Appellant during the disciplinary process, in particular:
  • the particulars in the first show cause notice referred not only to the Appellant's relationship with Ms K Lewis but also to evidence regarding the Appellant's relationship with Mr Bannerman and Ms H Lewis;
  • in considering the Appellant's submissions in his response dated 23 March 2021, to the effect that he did not know Mr Bannerman at the relevant time, the second show cause notice refers to extracts from Mr Bannerman's interview with the investigator; and
  • in considering the Appellant's submissions in his response dated 16 August 2021, to the effect that he did not know Ms H Lewis on a personal basis at the relevant time, the penalty decision refers to the Appellant's interview with the investigator.[8]
  1. [43]
    I am satisfied that the Appellant was afforded procedural fairness throughout this matter in that he was provided an opportunity to be heard by an unbiased decision maker. The allegations did not change and the evidence supporting the decision to substantiate the allegations was available to all parties. The Respondent's emphasis on different elements of the available evidence in responding to the Appellant's submission does not indicate that procedural fairness was not afforded. This emphasis on particular evidence simply provided an explanation as to why the Appellant's submissions were not accepted for particular evidentiary reasons.
  1. [44]
    The Respondent considered the remorse demonstrated by the Appellant and in my view appropriately adjusted the disciplinary action to a less severe penalty. The decision to impose a penalty of a reduction in remuneration level from SO2 to SO1 for a period of 12 months reflected the seriousness of the conduct and was fair and reasonable in the circumstances.
  1. [45]
    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. [46]
    Applying the principles outlined above, I do not consider that the decision to impose a reduction in remuneration lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct.
  1. [47]
    Based on the information before me, I am satisfied that the decision to impose a disciplinary action of a reduction in remuneration level from SO2 to SO1 for a period of 12 months is fair and reasonable in the circumstances.

Order

  1. [48]
    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] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

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

[3] 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.

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

[5] [2021] QIRC 267.

[6] The letter dated 2 August 2021.

[7] Appellant's submissions filed on 2 December 2021, [9].

[8] Respondent’s submissions

[9] [2019] QSC 170.

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

Close

Editorial Notes

  • Published Case Name:

    Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2022] QIRC 244

  • Court:

    QIRC

  • Judge(s):

    Member Power IC

  • Date:

    23 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
Nguyen v State of Queensland (Queensland Health) [2021] QIRC 267
2 citations
Jump To
Cite 1 - [2021] QIRC 267
Cite 2 - [2021] QIRC 267

Cases Citing

Case NameFull CitationFrequency
Hawkins v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 112 citations
1

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