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Shackleford v State of Queensland (Queensland Health)[2022] QIRC 284

Shackleford v State of Queensland (Queensland Health)[2022] QIRC 284

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Shackleford v State of Queensland (Queensland Health) [2022] QIRC 284

PARTIES: 

Shackleford, Paul

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/318

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

28 July 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

Final submissions received 27 April 2022

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where two allegations regarding appellant's conduct in the workplace substantiated – where conduct amounted to misconduct under s 187(1)(b) of the Public Service Act 2008 (Qld) – where disciplinary action imposed – where disciplinary action included reprimand, permanent transfer of duties and management action – whether decision to implement disciplinary action fair and reasonable – decision confirmed

LEGISLATION AND

INSTRUMENTS:

Code of Conduct for the Queensland Public Service

Department of Health Human Resource Delegations Manual: HRM Functions of the Director-General January 2018 s 34.2

Directive 14/20 – Discipline cls 8.3, 8.5, 8.6

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

Public Service Act 2008 (Qld) ss 187, 188, 190, 197

CASES:

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

Reasons for Decision

  1. [1]
    Mr Paul Shackleford is employed by the State of Queensland through Queensland Health ('the Department') as a Supply Officer (OO2.4) with Supply Chain Services at the Richlands Distribution Centre. He is employed by the Department within its Corporate Services Division ('CSD') and COVID-19 Supply Chain Surety Division ('CSCSD'). He has been employed by the Department for over 10 years.
  2. [2]
    In a decision letter dated 3 February 2022, Ms Barbara Phillips, Deputy Director-General CSD and CSCSD, informed Mr Shackleford of her decision to impose the following disciplinary action:
  1. (a)
    a reprimand;
  2. (b)
    permanent transfer to the role of Linen Operator (OO2) within Group Linen Services at Princess Alexandra Hospital ('the PAH'); and
  3. (c)
    management action including a requirement to:
    1. undertake training in the Code of Conduct for the Queensland Public Service ('the Code'); and
    2. participate in tailored counselling in relation to positive workplace behaviour and management of aggressive behaviour.

('the Decision').

  1. [3]
    By appeal notice filed 24 February 2022, Mr Shackleford appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act').[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decisionmaking process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  2. [4]
    In my view, the Decision was fair and reasonable.
  3. [5]
    My reasons follow.

Show Cause Process

  1. [6]
    In late January 2020, Mr Shackleford was suspended from duty on normal remuneration pending an investigation into his conduct.[4]

First Show Cause Notice

  1. [7]
    By letter dated 2 April 2020, Mr Craig Russell, General Manager Operations Health Support Queensland, invited Mr Shackleford to show cause why disciplinary findings should not be made against him in respect of allegations regarding his conduct.[5] The allegations and particulars were set out in that correspondence as follows:

Allegation 1

On 21 January 2020 you engaged in inappropriate workplace behaviour in that you:

  1. (a)
    behaved aggressively and used loud and offensive language towards your colleague, Mr Parminder Singh, in front of other employees; and
  1. (b)
    made a racially insensitive comment directed towards your colleague, Mr Parminder Singh, in front of other employees.

Particulars:

The particulars of Allegation 1 are as follows:

  • You are employed as a Supply Officer (OO2.4) with SCS, DC, HSQ.
  • At the material time, Mr Parminder Singh was employed as a Supply Officer (OO2) with SCS, DC, HSQ.
  • At the relevant time, Mr Janel Patel was the Distribution Centre Manager (AO8), SCS, DC, HSQ.
  • At the relevant time, Mr Aaron Marsh was the second in charge Supervisor (OO3), SCS, DC, HSQ.
  • On 21 January 2020, you were rostered to work at DC between 2:00pm and 10:30pm. Mr Singh was also rostered to work this shift.
  • At a time approximately between 4:00pm and 7:00pm, Mr Singh was having a discussion with Mr Marsh in the Picking Office regarding Mr Singh assisting his wife, Mrs Harphinder Kaur, in the picking area (Attachment 6, 7, 8 and 9).
  • You approached Mr Singh in the Picking Office and yelled at him words to the effect of:
    1. you're not in this team. Why are you here?' (Attachment 6);
    2. you shouldn't help your partner' (Attachment 7);
    3. [Mr Singh] [does] whatever [he] want[s] in the warehouse' (Attachment 9);
    4. you shouldn't be arguing with the supervisors' (Attachment 8); and
    5. Harphinder [Mr Singh's wife] is dangerous on the electronic palette jacks' (Attachment 8).
  • While you were yelling at Mr Singh, you used inappropriate terms include 'cunt' and 'fuck' repeatedly (Attachment 8). Your behaviour at this time was aggressive and loud (Attachment 7, 8 and 9).
  • You then said to Mr Singh words to the effect of, 'is [Jinal Patel] your brother in law? Go complain to him'. While you said this, you pointed in the direction of Mr Patel's office (Attachment 6, 7, 8 and 9).
  • While Mr Patel and Mr Singh share the same ethnicity, they are not related.

Allegation 2

On 23 January 2020, you engaged in inappropriate workplace behaviour in that you:

  1. (a)
    behaved aggressively and used loud and offensive language towards your colleague, Mr Parminder Singh, in front of other employees; and
  1. (b)
    used physical force on a supervisor, Mr Ronald Manjengwa.

Particulars:

The particulars of Allegation 2 are as follows:

  • You are employed as a Supply Officer (OO2.4) with SCS, DC, HSQ.
  • At the material time, Mr Parminder Singh was employed as a Supply Officer (OO2) with SCS, DC, HSQ.
  • At the material time, Mr Ronald Manjengwa was employed as Acting Distribution Centre Supervisor, SCS, DC, HSQ.
  • On 23 January 2020, you were rostered to work at DC between 2:00pm and 10:30 pm. Mr Singh was also rostered to work this shift.
  • At a time approximately between 4:00pm and 6:00pm, you approached Ms Kelly Topp, Supply Officer (OO2), and informed her that you were going to confront Mr Singh in relation to a potential complaint you believed Mr Singh was going to make against you regarding conduct he perceived as being racist (Attachment 6).
  • At the material time, Mr Singh was located at the desk in the dispatch area. You approached Mr Singh in the dispatch area, stood over him and asked Mr Singh if he was going to make a 'racist complaint' against you (Attachment 6 and 7). You were holding a recording device at this time (Attachment 6).
  • When Mr Singh refused to discuss this matter with you, you became aggressive and followed Mr Singh to the Picking Office. You were yelling loudly at Mr Singh saying words to the effect of, 'you fucking idiot', 'you're a piece of shit' and 'you asshole' (Attachment 7).
  • When Mr Singh entered the Picking Office and began to report your prior behaviour to Mr Manjengwa, you continued to yell inappropriate remarks at Mr Singh and repeatedly used profanities, including 'fuck' and 'cunt' (Attachment 8 and 9).
  • Following this, Mr Singh exited the Picking Office. Mr Manjengwa stood up from his desk and positioned himself in the doorway, between you and Mr Singh. You continued to walk with speed and pushed Mr Manjengwa with your body through the doorway (Attachment 8 and 9).
  • Outside of the Picking Office, you followed Mr Singh and positioned yourself in front of Mr Singh and continued to yell at him in an aggressive and threatening manner (Attachment 6, 7, 8, 9 and 10). A short time later, Mr Laurindo stepped in between you and Mr Singh (Attachment 7 and 10).[6]
  1. [8]
    Attached to the correspondence was, among other things, a signed statement by Mr Parminder Singh and signed witness statements from five other employees, namely Ms Kelly Topp, Mr Aaron Marsh, Mr Ronald Manjengwa, Mr Thor Laurindo and Mr Mark Watson. Each of the statements was taken by Ms Therese O'Connor, Senior Employee Relations Advisor of the Department, who had been assigned to investigate the matter.
  2. [9]
    Mr Shackleford was given 14 days in which to respond. The letter advised that if no response was received within that time, Mr Russell would make his decision on the information currently before him.
  3. [10]
    However, on 27 April 2020, Mr Shackleford requested that Mr Russell provide him with copies of each of the statements attached to the show cause notice in statutory declaration or affidavit form.[7] Mr Russell refused that request on 29 April 2022 and provided Mr Shackleford with an extension of time to 30 April 2022 to provide his response.[8]
  4. [11]
    Notwithstanding Mr Russell's refusal, Mr Shackleford sent an email to the Department's Employee Relations team on 30 April 2022 reiterating his request for all statements in statutory declaration or affidavit form.[9] He further advised he would be unable to respond to the show cause notice without such documents, and he considered any decision made without supplying him the documents would be flawed.[10]
  1. [12]
    Mr Shackleford did not provide a response to the show cause notice.

Decision on Disciplinary Findings and Second Show Cause Notice

  1. [13]
    On 12 June 2020, Mr Russell informed Mr Shackleford he had substantiated Allegations 1 and 2.[11] Further, Mr Russell determined there were grounds to discipline him under s 187(1)(b) of the PS Act in that Mr Shackleford was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a). He then invited Mr Shackleford to show cause as to why the proposed disciplinary action, termination of his employment, should not be imposed.
  2. [14]
    Mr Shackleford was afforded 7 days in which to provide a response, which he did on 16 June 2020. In his response, Mr Shackleford:
  • confirmed he received the first show cause notice on 8 April 2020 but stated there were no witness statements attached to the letter so he was unable to respond;
  • stated he took steps to obtain the witness statements from his support person;
  • expressed uncertainty as to who he should be directing his correspondence to;
  • reiterated his disappointment the witness statements were not provided in affidavit or statutory declaration form;
  • submitted there are serious inconsistencies and 'total untruths' in the statements;
  • disagreed with the proposed disciplinary action of termination, characterising it as 'manifestly excessive';
  • stated there had been no attempt to mediate or conciliate the matter;
  • categorically denied ever having made a racist comment to any of his co-workers, including Mr Singh, or that he used physical force on Mr Manjengwa;
  • explained that during a disagreement with Mr Singh, Mr Manjengwa had put his hands on Mr Shackleford's arms and he had simply slipped out of his grip and walked past him;
  • raised serious allegations of fraud regarding one of his co-workers and practices at the Richlands Distribution Centre;
  • explained he had attempted to raise his concerns with a member of the senior management team, during which she had questioned his mental state;
  • claimed that during that interaction she had also pretended to call the police and inform them she was 'under duress';
  • submitted that, as a direct result of this interaction, he was sent to see a psychiatrist and then later suspended on full pay;
  • stated he believed that the push to terminate him was driven by this person and is clearly part of an attempt to cover up the alleged fraud and failure to investigate it;
  • stated he was obtaining legal advice and would respond to the allegations made against him within 14 days of the letter; and
  • requested that no decision be made during that period and stated that if a decision was made, this would deny him natural justice and he would appeal such a decision.[12]
  1. [15]
    Mr Shackleford provided a further response on 30 June 2020, within which he set out his account of events on 21 and 23 January 2020.[13]

Further Decision on Disciplinary Findings and Third Show Cause Notice

  1. [16]
    On 23 December 2021, Ms Theresa Hodges, A/Deputy Director-General CSD and CSCSD, informed Mr Shackleford she had confirmed Mr Russell's decision to substantiate Allegations 1 and 2.[14]
  2. [17]
    Ms Hodges explained within that correspondence that, under s 34.2 of the Department of Health Human Resource Delegations Manual: HRM Functions of the Director-General January 2018, where it was proposed to dismiss an employee following a disciplinary process, the decision must be referred to a Band 3 delegate. Consequently, the matter had been referred to her as the authorised delegate.
  3. [18]
    Although Ms Hodges decided to confirm the substantiation of the allegations, having reviewed his responses dated 16 and 30 June 2020, she advised Mr Shackleford she considered the penalty of termination to be harsh in the circumstances. She did, however, note she did not consider local management action would be appropriate given the seriousness of his conduct. Consequently, she informed Mr Shackleford she was now giving consideration to alternative disciplinary action, namely:
  1. (a)
    a reprimand;
  1. (b)
    permanent transfer to the role of Linen Operator (OO2) within Group Linen Services at the PAH; and
  2. (c)
    management action including a requirement to:
    1. undertake training in the Code; and
    2. participate in tailored counselling in relation to positive workplace behaviour and management of aggressive behaviour.
  1. [19]
    Mr Shackleford was invited to respond to the proposed alternative disciplinary action within 14 days, which he did on 6 January 2022. In his response, Mr Shackleford:
  • expressed surprise at receiving the correspondence, noting it had been 18 months since he provided his response to the second show cause notice;
  • stated he found it 'disturbing' the Department had chosen to provide him the response two days before Christmas and provide him only 14 days to respond;
  • noted this had increased his anxiety and stress in relation to the disciplinary process, making it difficult for him to regain his trust in the Department and its commitment to natural justice;
  • raised several concerns regarding his suspension and compliance with the PS Act and relevant directives;
  • sought the names and contact details of all the delegates to whom his disciplinary matter had been referred;
  • submitted the disciplinary process to date had been 'one serial failure after another' and that he had been denied natural justice;
  • argued any decision based on the findings made, or documents produced, to date would be flawed because the process and collection of information had been flawed in that it was subjective and biased;
  • reiterated his request that witness statements be reproduced in statutory declaration or affidavit form and provided to him, submitting the witnesses would be willing to do this if what they said was true;
  • reiterated his allegations of fraud at the Richlands Distribution Centre and his position that the disciplinary process was an attempt to silence and persecute him;
  • submitted it is 'patently ludicrous' that the show cause notice did not specifically address each particular matter raised in his responses, questioning what proof he would have that Ms Hodges had in fact carefully considered those points;
  • rejected Mr Russell's disciplinary findings and Ms Hodges' confirmation of those findings;
  • characterised the Department's show cause letters as 'paint by the numbers' responses;
  • noted that he had over 10 years' service with the Department and, prior to his suspension, had held a position of significant responsibility;
  • questioned why the Department had considered only the position within Group Linen Services, describing it as a 'menial laundry position';
  • stated he found it particularly disturbing and personally offensive that it was proposed he be moved into a position commonly referred to as 'shit-sheeting';
  • submitted the fact that this was the only position considered evidenced Ms Hodges' lack of balance and objectivity, and her bias;
  • requested the Department provide him with at least six other employment options;
  • requested Ms Hodges explain the basis for her conclusion that any limitation on his human rights is demonstrably justified; and
  • requested the Department provide him with additional support beyond the employee assistance program.[15]
  1. [20]
    Mr Shackleford copied his response to the Minister for Health and Ambulance Services, the Shadow Minister and the Crime and Corruption Commission Queensland.
  2. [21]
    Mr Shackleford's suspension was reconsidered and extended on 23 December 2021 and 2 February 2022.[16] Consequently, he has remained on paid suspension throughout the disciplinary process.

The Decision

  1. [22]
    As mentioned above, on 3 February 2022, Ms Phillips made the decision the subject of this appeal.[17]
  2. [23]
    Ms Phillips commenced the Decision by setting out a brief background to the disciplinary process, acknowledging the time that process had taken and thanking Mr Shackleford for his patience, and then addressing his concerns in relation to the following:
  1. (a)
    the Department's contact with Mr Shackleford during the disciplinary process and the timing of that contact;
  2. (b)
    the referral of the disciplinary matter to Ms Phillips;
  3. (c)
    Mr Shackleford's allegations of corrupt conduct; and
  4. (d)
    Mr Shackleford's suspension from duty.
  1. [24]
    Ms Phillips then advised she had carefully considered all the information available to her, including Mr Shackleford's responses, notwithstanding all that information may not be reflected in the decision-letter. She then noted she had given particular consideration to the following:
  • the disciplinary findings made by Mr Russell and confirmed by Ms Hodges, noting that, notwithstanding any inconsistencies in the witness statements, Mr Shackleford had admitted to engaging in highly inappropriate and aggressive behaviour;
  • natural justice and procedural fairness, noting that Mr Shackleford had been afforded an opportunity to respond to each of the show cause notices;
  • the protracted nature of the disciplinary process, for which Ms Phillips apologised; and
  • Mr Shackleford's views with respect to the work of a Linen Operator and the suitability of such a role.
  1. [25]
    The Decision then provided as follows:

My decision in relation to disciplinary action

I have carefully considered all evidence available to me, including the submissions you make with respect to the proposed disciplinary action.

In reaching my decision on disciplinary action to be taken, I have had regard to the following:

  • Whilst some inconsistencies exist within the witness statements, it remains that by your own admission, you engaged in behaviour within the workplace which is highly inappropriate, aggressive and significantly deviates from the expected standards of a public service employee.
  • I am concerned by your lack of insight into your own behaviour and your complete dismissal of any wrongdoing on your behalf.
  • I am disappointed you have chosen to engage in further inappropriate workplace conduct less than 12 months after receiving the disciplinary outcome of a reprimand for similar concerns in July 2019 and I am of the view you should know and understand what constitutes appropriate and acceptable standards of behaviour within the workplace, particularly in respect of the Code of Conduct for the Queensland Public Service (Code of Conduct):

1.5 Demonstrate a high standard of workplace behaviour and personal conduct.

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

  1. a.treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  1. b.ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  • The definitive fact of this matter is that you have not conducted yourself appropriately in your interactions with your colleagues.
  • Given your inappropriate conduct and interactions with your colleagues in respect of this matter, and in that of the matter dealt with in July 2019, I do not believe your continued working within Supply Services at Richlands Distribution Centre supports your potential to modify your behaviour. I believe a transfer to the role of OO2 Linen Operator at the PAH provides you with an opportunity to work within a new team and develop positive workplace relationships.
  • The role of OO2 Linen Operator holds the same pay classification as the role of Supply Officer and as such, incurs no financial penalty to you.

Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the Act:

  • A Reprimand; and
  • Permanent transfer into the role of OO2 Linen Operator within Group Linen Services at Princess Alexandra Hospital (PAH); and
  • Management Action, including you:
  • Undertaking the Code of Conduct for the Queensland Public Service training; and
  • Participating in tailored counselling in relation to positive workplace behaviour and management of aggressive behaviour...[18]

Relevant Principles

  1. [26]
    The PS Act relevantly provides:

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
  • a reprimand

  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  1. (6)
    An order under subsection (1) is binding on anyone affected by it.

190 Procedure for disciplinary action

In disciplining a public service employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

  1. [27]
    Directive 14/20 – Discipline ('the Directive') relevantly provides:

8.5 Show cause process for proposed disciplinary action

  1. (a)
    The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).
  1. (b)
    The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.
  1. (c)
    The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act.
  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. (e)
    A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.
  1. (f)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. (g)
    If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 8.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

8.6 Decision on disciplinary action

  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.
  1. (b)
    The chief executive must inform the employee of the decision in writing, including:
  1. (i)
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. (ii)
    excluding a termination decision, information that the employee may appeal the decision on disciplinary action
  1. (iii)
    for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016.
  1. (c)
    A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. (i)
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. (ii)
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. (iii)
    the employee has suggested the disciplinary action as an appropriate alternative penalty.
  1. (d)
    Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

What Decision can an Industrial Commissioner make?

  1. [28]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  2. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Mr Shackleford's Submissions

  1. [29]
    Mr Shackleford characterises the allegations made against him as 'ridiculous' and an attempt to demote him to a role 'under close scrutiny'.[19] He explains that he previously raised concerns regarding a manager's treatment of another employee, but those concerns were dismissed.[20] He submits that from that point onwards he had a 'target' on his back and another member of management then became 'general inquisitor' in relation to his actions.[21] He also outlines a later incident which he says resulted in him receiving a reprimand and suspension from duty.[22]
  2. [30]
    Mr Shackleford is critical of how the disciplinary process has been progressed, noting he received no contact from the Department for a period of over 18 months prior to Ms Hodges' correspondence on 23 December 2021.[23] He submits the delay in dealing with this matter has left him in limbo and caused him significant stress and anxiety for which he has sought additional support from the Department.[24]
  3. [31]
    Mr Shackleford notes he has repeatedly asked for witness statements to be provided in affidavit or statutory declaration form, but that request has been refused.[25] This has resulted, he submits, in each of the delegates investigating this matter relying on defective unsworn statements, which he submits would not hold up in a court of law, and refusing to investigate the matter further.[26] He argues this is a clear denial of procedural fairness and the appropriate application of the rule of law.[27]
  4. [32]
    Mr Shackleford contends the Department has failed to adequately investigate the allegations made against him, instead proceeding in a matter that was incompetent and negligent.[28] While he admits calling Mr Singh a 'fuckwit', he denies he made racist comments or was physically violent.[29] With respect to the latter allegation, he submits Mr Manjengwa had placed his hands on Mr Shackleford's arms and he had simply slipped out of Mr Manjengwa's grip.[30] In this respect he argues the statements made by Mr Singh, Mr Manjengwa and Mr Marsh are 'totally fabricated'.[31]
  5. [33]
    In any event, Mr Shackleford submits Ms Phillips has 'changed the tune' of the disciplinary process and it is now about his behaviour at work in general.[32] Further, he argues it is morally wrong and unfair that she has advised him he may be required to disclose the disciplinary findings if he seeks employment elsewhere as he says the allegations remain unproven.[33]
  6. [34]
    With respect to the permanent transfer to the role of Linen Operator, although not previously raised during the show cause process, Mr Shackleford submits that during previous employment within the security industry he developed an abhorrence of bodily fluids following altercations which resulted in him having close contact with such substances.[34]
  7. [35]
    He submits this ultimately led him to changing careers and accepting employment with the Department.[35] He submits he has already expressed his concerns to the Department about the proposed job and argues they cannot force a person to work in a job that makes them physically unwell.[36]
  8. [36]
    Mr Shackleford also made submissions regarding his concerns of fraud at the Richlands Distribution Centre, and further concerns regarding the sharing of his login details with other staff members whilst on suspension.[37] He also requested the Commission investigate this matter and expressed concerns that false allegations, such as claims of sexual harassment, could be levelled at him to remove him from the workplace.[38]
  9. [37]
    In subsequent submissions, Mr Shackleford submits he is aware there are many positions in supply, an area in which he is trained, where he believes he could work in an environment isolated from other staff.[39] He also reiterates his concerns regarding the witness statements relied on throughout the disciplinary process and provides a doctor's certificate outlining his aversion to bodily fluids.[40]

Department's Submissions

  1. [38]
    The Department contends the disciplinary process has been conducted in accordance with ch 6 of the PS Act and the Directive.[41] Consequently, it submits the Decision is fair and reasonable.[42]
  2. [39]
    It submits Mr Shackleford was provided natural justice when he was provided with written details of each allegation, a copy of the evidence relevant to the facts and an opportunity to respond prior to the Decision being made.[43] Further, it submits he was provided with written advice regarding the disciplinary finding, including an explanation of the grounds on which each allegation had been established, and he was notified of his appeal rights.[44]
  3. [40]
    It submits Mr Shackleford's submissions in relation to the proposed penalty, including his concerns regarding inconsistencies in the witness statements, were considered and this is reflected in Ms Hodges' correspondence where she determined termination would be harsh in the circumstances.[45] With respect to Mr Shackleford's insistence that the witness statements be produced in affidavit or statutory declaration form, the Department submits his position is misconceived.[46]
  4. [41]
    Although it acknowledges the time taken to complete the disciplinary process has not been ideal, it notes Mr Shackleford has been paid at his normal remuneration during this period and has not been financially disadvantaged.[47]
  5. [42]
    The Department argues Ms Phillips properly considered Mr Shackleford's responses in making the Decision and that she weighed these against the seriousness of the substantiated allegations, the risk to the health and safety of other staff and Mr Shackleford's ability to continue in his role as a Supply Officer.[48] Further, it submits she considered his conduct against his classification level and the expected awareness of his conduct obligations, as well as previous disciplinary processes.[49] In this respect it notes Mr Shackleford received a reprimand regarding aggressive and inappropriate behaviour towards management in July 2019, six months prior to the allegations the subject of the present appeal.[50]
  6. [43]
    It contends Mr Shackleford has failed to modify his behaviour following the earlier disciplinary process, nor has he shown insight with respect to the current allegations.[51] The Department argues remaining in his current role would not support Mr Shackleford to modify his behaviour or develop positive working relationships.[52] Further, it notes the work at the Richlands Distribution Centre is shift work and moving Mr Shackleford to another team would still require him to interact with other staff.[53]
  7. [44]
    With respect to the transfer to the Linen Operator role, the Department submits Ms Phillips considered Mr Shackleford's skills were transferable to this role and notes that training would be provided.[54] In this respect, it notes Ms Phillips was only required to consider roles available within Queensland Health, and she does not have the authority to transfer a departmental employee to a hospital and health service where there may be other roles Mr Shackleford finds more preferable.[55]
  8. [45]
    Although it notes Mr Shackleford's comments regarding his aversion to bodily fluids, it argues he did not provide any evidence of a medical condition that impacted his ability to undertake the Linen Operator role.[56] However, it submits it is open to exploring reasonable adjustments with Mr Shackleford to enable him to fulfil this role.[57]
  9. [46]
    Finally, it notes Mr Shackleford had failed to propose alternative action to the permanent transfer and had made no comment on the reprimand of management action.[58]

Was the Decision Fair and Reasonable?

  1. [47]
    Before considering whether the Decision was fair and reasonable, it is relevant to note Mr Shackleford has included commentary within his submissions about a broad range of matters, some of which fall outside the scope of this appeal. Most notably, Mr Shackleford has referred to instances of fraud and bullying in the workplace and continues to take issue with the substantiation of the two allegations which led to the decision to impose disciplinary action.
  2. [48]
    However, my role in this appeal is limited to considering whether the Decision to impose disciplinary action was fair and reasonable in all the circumstances.[59]
  3. [49]
    To be clear, this process involves a review of the decision on disciplinary action and the decisionmaking process therein.[60] That decision, which was signed by Ms Phillips on 3 February 2022, concerned the imposition of the following disciplinary action and the reasons for imposing the action:
  • a reprimand
  • permanent transfer into the role of Linen Operator (OO2); and
  • management action, including training and counselling.
  1. [50]
    Clause 8.5 of the Directive requires the chief executive of the Department (or their delegate) to provide an employee with written details of any proposed disciplinary action and invite them to show cause why the action should not be taken.
  2. [51]
    It is not in contention that, on 23 December 2021, Ms Hodges, in correspondence which confirmed a disciplinary finding substantiating two allegations against Mr Shackleford, proposed the disciplinary action set out at [49].
  3. [52]
    Relevantly, in earlier correspondence, Mr Russell had proposed the penalty of termination of employment, however Ms Hodges considered termination to be harsh in the circumstances and proposed the alternative disciplinary action.
  4. [53]
    Clause 8.5(d) of the Directive provides:

8.5 Show cause process for proposed disciplinary action

  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. [54]
    To an extent, Mr Shackleford addressed some of these elements within his submissions.

Substantiation of the Allegations/Employee's Explanation

  1. [55]
    Mr Shackleford continues to deny the substantiated allegations, raising concerns about the Department's reliance on signed witness statements, instead of a statutory declaration or affidavit, during the investigation of the allegations. He also maintains he has had a 'target on his back' and felt 'constantly persecuted' following a negative interaction with members of senior management.
  2. [56]
    Mr Shackleford 'does not dispute he called Mr Singh a 'fuckwit' but maintains Mr Manjengwa and Mr Marsh have fabricated allegations of racism and violence. Although not named, he questions whether 'people in management (and especially HR)' are pursuing 'a campaign of slander and defamation' against him, in response to his efforts to bring fraudulent activities to their attention.
  3. [57]
    The difficulty with Mr Shackleford's position is that the decision to substantiate the allegations he now takes issue with was made and communicated to him on 23 December 2021. That decision is a different decision to that which forms the basis of this appeal.
  4. [58]
    In the 23 December 2021 decision, it was confirmed that Mr Shackleford behaved aggressively towards a colleague, used loud and offensive language and, although denied, made a racially insensitive comment towards the same colleague.
  5. [59]
    Even if that were not the case however, one of the challenges he faces is that, on his own version of events, he engaged in inappropriate conduct which deviated from the expected standards of a public service employee, namely:
  • calling a colleague a 'fuckwit';
  • yelling 'what did you fucking call me?' while following the colleague; and
  • having to be physically stopped from following the same colleague by a manager.
  1. [60]
    On any objective measure, even if his version of events had been accepted by the Department, his conduct was serious.
  2. [61]
    Separately, I agree with the Department's submissions that Mr Shackleford's insistence that witness statements must be provided in the form of an affidavit or statutory declaration format to be valid is misconceived. Relevantly, cl 8.3 of the Directive, which sets out the show cause process for a disciplinary finding, requires a copy of all evidence relevant to the facts considered by the chief executive (or their delegate) to be provided to the employee. The Directive does not, for example, prescribe the format for witness statements, nor has Mr Shackleford been able to provide the Commission with any materials that support his position in respect of the format of the statements.
  3. [62]
    In any event, the statements were taken by a senior member of the Department's employee relations team in her capacity as the investigator assigned to the matter. Further, each of the statements includes words to the effect that the person giving the statement was aware it was being provided to Ms O'Connor for the purposes of an investigation. I consider it a serious allegation to suggest the statements are fraudulent and each of those individuals sought to mislead their employer. Although there are some inconsistencies in the statements in terms of wording or the precise location of other employees during the relevant interactions, they are substantially consistent in that they allege Mr Shackleford engaged in aggressive and inappropriate behaviour which he has also admitted to.
  4. [63]
    I am satisfied Mr Shackleford was afforded natural justice during both the show cause process dealing with the substantiation of the allegation and the process imposing disciplinary action in circumstances where he was provided with written details of the allegations, a copy of all evidence relevant to the facts, an opportunity to respond prior to the decision-maker's decision and, later, an opportunity to respond to the proposed disciplinary action before any decision was made.

Ability to Perform the Proposed Role

  1. [64]
    In Mr Shackleford's show cause response to the Department's proposal to transfer him to a Linen Operator role at the PAH, he charactered the role as 'shit-sheeting'. He considered the Department's proposal to move him to the role as a '…clear indication of [its] lack of balance and objectivity and bias…' in its dealings with him.
  2. [65]
    He noted the Department had '…an opportunity to demonstrate [its] objectivity by providing [him] with at least 6 other employment options within Qld Health.'
  3. [66]
    Other than to offer his personal views about the Linen Operator role, Mr Shackleford provided no other reasons during the show cause process as to why he could not undertake the role, nor did he propose an alternative penalty.
  4. [67]
    The rationale relied on by Ms Phillips in support of her decision to transfer Mr Shackleford to a Linen Operator role included:
  • his failure to conduct himself appropriately in his interactions with his colleagues;
  • a prior reprimand issued for similarly poor conduct;
  • concerns he was not able to modify his behaviour;
  • the opportunity to work within a new team; and
  • the Linen Operator role sitting at the same pay classification.
  1. [68]
    Having regard to those considerations, I would not ordinarily be persuaded that the decision to transfer Mr Shackleford to the Linen Operator role, or any of the other disciplinary actions, are unfair or unreasonable.
  2. [69]
    However, in his appeal submissions, Mr Shackleford has observed he cannot work in a job that involves bodily fluids and that he becomes physically unwell when he works with faeces, blood or urine.
  3. [70]
    In response to the Department's observations he had not provided any evidence of a medical condition that would prevent him from undertaking the Linen Operator role, Mr Shackleford obtained a medical certificate in April 2022, which he filed along with other materials in the Industrial Registry.
  4. [71]
    Unhelpfully, the medical certificate does not highlight the nature of the medical condition that prevents him from performing the role. Instead, it describes Mr Shackleford's stated aversion to exposure to faeces, blood and the like.
  5. [72]
    Notwithstanding the lack of detailed information within the certificate, I note the Department has indicated it is open to exploring with Mr Shackleford, and his treating medical practitioners, reasonable adjustments that may be made to enable him to fulfil the role of a Linen Operator.
  6. [73]
    Helpfully, the Department has provided the Commission with the position description for the Linen Operator role. The responsibilities are relatively broad and include:
  • sorting soiled linen;
  • feeding of linen into production equipment to fold and iron;
  • hand folding linen;
  • packing of clean linen;
  • distribution of linen;
  • operation of equipment;
  • delivery of linen; and
  • general cleaning duties.
  1. [74]
    Subject to his treating medical practitioners better defining the nature of the condition he suffers which prevents him from being exposed to blood, urine and other similar elements, I am satisfied the role is sufficiently broad such that reasonable adjustments will ensure Mr Shackleford is not precluded from performing the role.

Delay

  1. [75]
    Although he has not provided any medical evidence in support of his claims, Mr Shackleford complains that he suffers from trauma and anxiety due to a failure on the part of the Department to directly contact him for a period of 18 months, specifically June 2020 until December 2021, while the disciplinary matter was being resolved.
  2. [76]
    A decision to impose a disciplinary action depends on all the circumstances of the matter.
  3. [77]
    Section 188(1) of the PS Act provides that the employee's chief executive may take action, or order that action be taken, the chief executive considers reasonable in the circumstances.
  4. [78]
    In circumstances where the Department has not advanced the reasons for the delay, I do hold some concerns about the length of time it took to resolve the disciplinary process. However, whether a period of 18 months to complete a disciplinary process should impact the decision to impose disciplinary action depends on all the circumstances of the matter.
  5. [79]
    Within the 18 month period complained of, the Department made a decision to propose alternative disciplinary action in circumstances where it originally contemplated the termination of Mr Shackleford's employment. Moreover, there is no evidence that Mr Shackleford was financially disadvantaged in circumstances where he continued to receive his normal remuneration while the proceedings were finalised.
  6. [80]
    Consequently, while I have some sympathy for Mr Shackleford and the distress he may have experienced due to the prolonged nature of the disciplinary process, I am not satisfied delay alone makes the Decision unfair or unreasonable in the circumstances.

Conclusion

  1. [81]
    For the reasons given above, having considered the Decision, the substantiated allegations against Mr Shackleford and his own admissions in respect of his conduct, as well as having regard to the seriousness of his behaviour and the existence of an earlier reprimand, I have determined the disciplinary action is fair and reasonable in all the circumstances.
  2. [82]
    Accordingly, the Decision is confirmed.

Order

  1. [83]
    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] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) ('Goodall'), 5.

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

[4] Department's submissions filed 30 March 2022, Attachment 1.

[5] Ibid Attachment 2.

[6] Ibid.

[7] Ibid Attachment 4.

[8] Ibid.

[9] Ibid Attachment 3.

[10] Ibid.

[11] Ibid Attachment 4.

[12] Ibid Attachment 5.

[13] Ibid Attachment 6.

[14] Ibid Attachment 7.

[15] Ibid Attachment 9.

[16] Ibid Attachment 8; Attachment 10.

[17] Ibid Attachment 11.

[18] Ibid.

[19] Appeal Notice filed 24 February 2022, Schedule 1, 1.

[20] Ibid 2.

[21] Ibid.

[22] Ibid 3.

[23] Ibid 2.

[24] Ibid.

[25] Ibid.

[26] Ibid 2, 4.

[27] Ibid 2.

[28] Ibid.

[29] Ibid.

[30] Ibid 4.

[31] Ibid 2.

[32] Ibid 4.

[33] Ibid.

[34] Ibid 1.

[35] Ibid 1, 4.

[36] Ibid 4.

[37] Ibid 4-5.

[38] Ibid 5.

[39] Mr Shackleford's submissions filed 27 April 2022.

[40] Ibid.

[41] Department's submissions filed 30 March 2022, [5].

[42] Ibid [18].

[43] Ibid [19].

[44] Ibid [21].

[45] Ibid [22].

[46] Ibid [20].

[47] Ibid [32].

[48] Ibid [23].

[49] Ibid.

[50] Ibid [26].

[51] Ibid [25], [27].

[52] Ibid [28].

[53] Ibid.

[54] Ibid [29].

[55] Ibid [37].

[56] Ibid [33]-[34].

[57] Ibid [35].

[58] Ibid [20].

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

[60] Ibid s 562B(2); Goodall (n 2) 5.

Close

Editorial Notes

  • Published Case Name:

    Shackleford v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Shackleford v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 284

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    28 Jul 2022

Appeal Status

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

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