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  4. Miller v State of Queensland (Department of Agriculture and Fisheries) - [2022] QIRC 388

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Miller v State of Queensland (Department of Agriculture and Fisheries)[2022] QIRC 388

Miller v State of Queensland (Department of Agriculture and Fisheries)[2022] QIRC 388

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Miller v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 388

PARTIES:

Miller, Ross

(Appellant)

v

State of Queensland (Department of Agriculture and Fisheries)

(Respondent)

CASE NO:

PSA/2022/620

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

11 October 2022

MEMBER:

HEARD AT:

Pidgeon IC

On the papers

OUTCOME:

CATCHWORDS:

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

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against a disciplinary decision – whether there were grounds to substantiate allegations – whether substantiated allegations gave rise to disciplinary finding – where conflicts of interest arose – whether appellant discharged disclosure obligations – whether appellant identified and managed conflicts of interest – where decision imposed is fair and reasonable – decision appealed against is confirmed

LEGISLATION:

Code of Conduct for the Queensland Public Service cls 1, 3

Directive 12/20: Recruitment and Selection

Directive 14/20: Discipline

Directive 3/10 – Declaration of Interests – Public Service Employees (other than Departmental Chief Executives) cl 5

Industrial Relations Act 2016 ss 562B, 562C

Public Service Act 2008 ss 187, 194, 196

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

Background

  1. [1]
    Mr Miller (the Appellant) is employed by the State of Queensland (Department of Agriculture and Fisheries) (the Respondent) as a Manager (AO8), Hardwood with Forestry, Fisheries and Forestry.
  1. [2]
    Mr Miller appeals a disciplinary decision made against him by Mr Barry Underhill, Executive Director, Forestry, on 27 May 2022. The date Mr Miller received the decision is 2 June 2022.
  1. [3]
    On 24 January 2022, Mr Barry Underhill, Executive Director, Forestry, wrote to Mr Miller requesting that he show cause within 14 days as to why disciplinary findings should not be made in relation to the following allegations:

Allegation 1:

That Mr Miller failed as the Decision-Maker to appropriately manage his own declared conflicts of interest, as well as those declared actual and perceived conflicts of interest submitted by the EOI panel, Probity Advisor and Technical Advisor given his position as the approval officer, before and during the EOI for sandalwood.

Allegation 2:

That Mr Miller, as the Decision-Maker, failed to ensure appropriate records or justification were provided to inform a decision about the recommendations of the evaluation panel about the EOI.[1]

  1. [4]
    The letter of 27 May 2022 containing the disciplinary findings is 17 pages long. I will deal with the contents of the letter below.  However, it is important to note that while both Allegation 1 and Allegation 2 were substantiated, with regard to Allegation 2, Mr Underhill decided:

While I am satisfied you engaged in the conduct the subject of Allegation 2, having carefully considered all the information available to me, I have determined to give you the benefit of the doubt and make no disciplinary findings under s 187 of the PS Act in relation to your conduct, the subject of this allegation.

  1. [5]
    Mr Underhill sets out the submissions made by Mr Miller in his show cause response from pages 2 to 5 of the decision letter.  Mr Underhill's findings with regard to Allegation 1 are included in the decision letter from page 7 to 12.

Mr Miller's grounds of appeal

  1. [6]
    Mr Miller provides his grounds of appeal as an attachment to his appeal notice.  Mr Miller states that the 'process and findings are unfair and unreasonable and have significant flaws'.[2]  
  1. [7]
    The first appeal ground is that Mr Underhill has:

failed to recognise, manage and act appropriately in relation to his conflicts of interest relating to this disciplinary process leading to an improper, unfair and unreasonable process where he has no choice but to prosecute actions to support his decision made on 31 January 2022.[3] 

  1. [8]
    Mr Miller says that 'the first show cause letter was received one day following notification that I was unsuccessful in my application for a promotion'.[4]  Mr Miller says that this highlights to him unfairness and bias which may have been evident during that process.
  1. [9]
    The second appeal ground is with regard to the lengthy show cause process and the stress experienced by the Appellant while being expected to perform his full duties.
  1. [10]
    The third appeal ground is that:

Mr Barry Underhill was made formally aware of the inconsistency with the competitive sale evaluation process and the misalignment with departmental policy via an internal audit in 2017 and he failed to address these issues in a systemic fashion.[5] 

  1. [11]
    Mr Miller says that Mr Underhill's 'failure to act meant that every evaluation process since has not met the department policy requirements and that panel members were completing their role in good faith unknowingly of this issue'.  Mr Miller says that it is unreasonable to single out this process and himself.
  1. [12]
    The fourth appeal ground is that where similar previous issues have been found, the corrective actions appear very casual and Mr Miller believes that Mr Underhill has not sought formal disciplinary actions with other staff and this leaves him to believe he has been unfairly targeted.
  1. [13]
    The fifth appeal ground is that Mr Miller believes he is being unfairly blamed for the Department's outdated framework and poorly aligned policies, procedures and plans. Mr Miller says that Mr Underhill does not agree that the framework contributed to the disciplinary finding but Mr Underhill has since instructed a major overhaul of the relevant framework to clarify the roles of the evaluation panel, the application of departmental policy and guidance material.  Mr Miller says that this is an admission that there is a significant issue with the policy and framework which should have been addressed when first identified in 2017.
  1. [14]
    The sixth ground of appeal is that Mr Underhill has 'disregarded the allocated roles of the evaluation panel as part of the competitive process' as they are stated in the evaluation plan and that he has made 'several inferences that are not consistent with duties stated in the evaluation plan'.  Mr Miller says that it is unreasonable to make inferences in relation to the panel members duties as they can only follow the roles and actions stated.
  1. [15]
    The seventh ground of appeal is that Mr Miller believes his response to the show cause and concerns about the show cause process have been totally and unreasonably disregarded by Mr Underhill and the Department's Human Resources (HR) and Ethics units.  Mr Miller does not believe the Department can run a fair and objective process.
  1. [16]
    Finally, the eighth ground of appeal is that Mr Underhill has failed to establish that Mr Miller has not acted in the interests of the State in relation to the outcome of the evaluation process. Mr Miller says that the 'fact that party A or B were selected is irrelevant to the fair evaluation of the matter by the panel and the resolution of the issue in the State's interest.'[6]

Department's submissions

  1. [17]
    The Department says that the disciplinary findings made against Mr Miller were fair and reasonable.
  1. [18]
    Further, the Department says that Mr Miller's appeal grounds 'tend to traverse matters that are irrelevant to the issue of whether the disciplinary findings were fair and reasonable'.[7]

Background to the matter

  1. [19]
    The Department says that on 22 January 2021, Forestry published an external Expression of Interest (the Sandalwood EOI) seeking interest from prospective proponents to inform a list of suitable parties to harvest and purchase state-owned sandalwood timber in four zones under the authority of the Forestry Act 1959.  A number of interested parties, including former and current permittees and potential new proponents, responded to the EOI. One of the proponents was a former Forestry employee, Mr X.[8]
  1. [20]
    Mr X formerly held the position of Manager (AO7), Forestry.  Mr X resigned from the Department on 18 March 2020.  The Department says that Mr Miller worked with Mr X for approximately 10 years and was his direct line manager for a significant period of time throughout Mr X's employment with the Department until approximately two months prior to his separation.
  1. [21]
    The Department says that prior to the EOI documentation being distributed to interested parties, a panel was established to undertake an evaluation process of the EOIs received and to make a recommendation as to the suitability of proponents (Evaluation Panel).  Mr Miller was the delegated decision-maker responsible for endorsing or rejecting the Evaluation Panel's recommendations.  The panel consisted of Mr Miller, Mr Alsemgeest (Chair), and two other panel members.  The Department says that Mr Sayer (Probity Advisor) and Mr Olive (Technical Advisor) also assisted in the Sandalwood EOI process.
  1. [22]
    The Department says that each member of the panel was required to sign a Disclosure Statement declaring any actual or perceived conflicts of interest in relation to the Sandalwood EOI.  All four panel members made statements disclosing their knowledge of and previous working relationships with Mr X. One panel member disclosed that he also had personal dealings with Mr X via social events outside of work.  In the investigation of this matter, it was also found that the Mr Sayer and Mr Olive worked with Mr X for periods of two years and ten years respectively.
  1. [23]
    On 23 April 2021, Mr Miller in his role as decision-maker, signed off on the Evaluation Report for the Sandalwood EOI.  The Department says that out of the four zones available, Mr X was recommended as the 'most suitable' proponent in two zones and the 'next most suitable' in a third zone.
  1. [24]
    The Department says that in light of the Evaluation Report, concerns arose as to whether the Evaluation Panel and Mr Miller had appropriately managed their declared perceived and actual conflicts of interest.

Internal review of the Sandalwood EOI process

  1. [25]
    The Department says that an internal review was critical of the Sandalwood EOI process.  The Department submits that the internal review:
  • Identified that there was no evidence of Mr Miller considering the perceived or declared conflicts of interest stated in the Disclosure Statements;
  • Found that Mr Miller did not escalate or otherwise bring the matters disclosed to the attention of the Department; and
  • Further identified that there was no evidence that the perceived and declared conflicts of interest had been brought to the attention of the Probity Advisor whose role it is to provide advice and assistance in respect of probity issues, including conflicts of interest, before and during the course of the EOI process.
  1. [26]
    The Department says that following the internal review, Mr Underhill raised concerns with the Governance and Ethics Unit within Human Resources in respect of the Sandalwood EOI.

Investigation of allegations relating to the Sandalwood EOI

  1. [27]
    In July 2021, the Department engaged Mr Steve Bennett from BDO (the Investigator) to investigate the allegations relating to the Sandalwood EOI.  The allegations investigated as they related to Mr Miller were:

Allegation 1:

That Mr Miller failed as the Decision-Maker to appropriately manage his own declared conflicts of interest, as well as those declared actual and perceived conflicts of interest submitted by the EOI panel, Probity Advisor and Technical Advisor given his position as the approval officer, before and during the EOI for Sandalwood.

Allegation 2:

That Mr Miller, as the Decision-Maker, failed to ensure appropriate records or justification were provided to inform a decision about the recommendations of the evaluation panel about the EOI.

  1. [28]
    Mr Miller was informed by letter dated 11 August 2021, that an Investigator had been appointed and on 8 September 2021, Mr Miller participated in an interview with the Investigator. 
  1. [29]
    On 19 October 2021, the Investigation Report was provided to the Department.  The Investigation Report concluded that Allegation 1 was capable of being substantiated and that Allegation 2, as stated above at [26], was not capable of being substantiated.
  1. [30]
    With regard to Allegation 2, the Investigator found that technically, Mr Miller had failed to ensure appropriate records of justification were provided to inform a decision about the recommendations of the Evaluation Panel about the Sandalwood EOI, however the policy and procedure did not support that it was his role as decision-maker to do so.

The First Show Cause Notice

  1. [31]
    In a letter dated 24 January 2022 (the First Show Cause Notice),[9] Mr Underhill asked Mr Miller to show cause within 14 days as to why disciplinary findings should not be made in relation to the allegations as stated at [3] above.  It is noted that Allegation 2 was a reframed version of the investigated Allegation 2, having regard to the Investigator's findings.
  1. [32]
    Mr Miller provided a response to the First Show Cause Notice on 13 February 2022.[10]  The Department says that in his response, Mr Miller: rejected the allegations; said that there was insufficient evidence to support the allegations; claimed that there had been bias and a lack of procedural fairness; argued that his role had been misinterpreted; and contended that he had been unfairly flamed for deficiencies in the Sandalwood EOI process.

Disciplinary findings

  1. [33]
    In a letter dated 27 May 2022, Mr Underhill informed Mr Miller that he had determined that Allegation 2 was substantiated but that he had determined not to make a disciplinary finding with relation to that allegation.  Mr Underhill was satisfied that on the balance of probabilities, Allegation 1 was capable of substantiation and pursuant to s 187(1)(g) of the Public Service Act 2008 (the PS Act), Mr Miller had contravened a standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely, clauses 1.2 and 3.1 of the Code of Conduct for the Queensland Public Service.
  1. [34]
    It is the disciplinary finding with regard to Allegation 1 that Mr Miller appeals.

Department says that the decision was fair and reasonable

  1. [35]
    The Department says that the decision was fair and reasonable and points me to consideration of whether a decision is 'unreasonable' as outlined by Ryan J in Gilmour v Waddell & Ors:

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 or unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statue 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.[11]

Relevant policies and procedures

  1. [36]
    The Department says that it is not in dispute that Mr Miller was the delegated decision-maker for the Sandalwood EOI. The Department submits that as a public service employee, Mr Miller has a duty to carry out his responsibilities in accordance with the Code of Conduct, the Queensland Public Service Directives and Department policies and procedures.  Relevantly, the Department says that cl 1.2 of the Code of Conduct provides, in part:

Having a conflict of interest is not unusual and it is not wrongdoing in itself.  However failing to disclose and manage the conflict appropriately is likely to be wrongdoing.

As public service employees, we are committed to demonstrating our impartiality and integrity in fulfilling our responsibilities and as such we will:

  1. always disclose a personal interest that could, now or in the future, be seen as influencing the performance of our duties.  This will be done in accordance with our agency policies and procedures.
  2. actively participate with our agency in developing and implementing resolution strategies for any conflict of interest, and
  3. ensure that any conflict of interest is resolved in the public interest.
  1. [37]
    The Department says that Mr Miller completed the online Code of Conduct and Ethical Decision training on 20 November 2017, 2 October 2018, 4 November 2019 and 4 November 2020. The Department points to Public Service Commission Directive 3/10 'Declaration of Interests – Public Service Employees (other than Departmental Chief Executives)' which provides, in part:

5.1 Principles

When a public service employee is directed by a Chief Executive to provide a Declaration of Interests, the following principles apply:

…

5.1.2 Employees subject to this policy are responsible for fully disclosing their interests that may have a bearing, or be perceived to have a bearing, on their ability to properly and impartially discharge the duties of their office.

  1. [38]
    The Department says that Mr Miller is required to identify and take steps to appropriately declare and manage a conflict of interest (whether actual, potential or perceived) and to resolve the matter in the public interest.  The Department says that these are overarching policies which apply to public service employees, whether or not they are specifically stipulated in a local policy or procedure document.  The Department says that the onus was on Mr Miller to comply with the Code of Conduct and the Directive during the Sandalwood EOI process and to seek advice and guidance if at any stage he was unsure about his obligations.
  1. [39]
    The Department says that in signing the Disclosure Statement on 24 March 2021 declaring a (perceived) conflict of interest with Mr X, Mr Miller acknowledged and agreed that:

1.3 I am aware of my obligations under the legislation which governs my employment (and associated code of conduct) to take all reasonable steps in ensuring the Department's confidential information is kept confidential and in performing those services faithfully and without any conflicting interest.

…

2.2 I agree that during the course of the evaluation process I will not engage in any activity or obtain any interest likely to conflict with my impartiality in respect of this project. In the event that a real or apparent conflict arises, I will immediately disclose it to the Department.

  1. [40]
    The Department also notes that Forestry's manual titled 'Harvesting, Marketing and Resource Management (HM & RM)' which applied to the Sandalwood EOI, states the following in relation to conflicts of interests:

20.25.5 Conflict of Interest Checks

Prior to commencing the evaluation process, the Decision Maker, Probity Auditor (if appointed), Evaluation Panel members and other staff involved directly in the assessment/evaluation of proposals should conduct a conflict of interest check.  All checks should be sent to the Decision Maker.  The Decision Maker needs to be notified if a conflict arises that has not been previously considered in the Statutory Declaration.

  1. [41]
    The Department says that as part of the Sandalwood EOI, an Evaluation Plan was created and one of its objectives was to 'ensure that decisions taken during the evaluation process are sound and defensible'.  The Evaluation Plan stated:

All members of the Evaluation Panel must sign the Department's Disclosure Statement at Attachment A prior to the commencement of the evaluation. The Evaluation Panel and the Decision Maker will not receive offers until after the Decision Maker has received the completed Disclosure Statement forms from each Panel member and the Decision Maker and this Evaluation Plan is signed by all Panel members.

  1. [42]
    The Department also refers to HR Policy 'CHA/2019/4842' which outlines the responsibilities for Managers in appropriately dealing with conflicts of interest.[12]

Investigation findings

  1. [43]
    The Department says that in circumstances where it was found that all staff members involved with the Sandalwood EOI (panel members, Probity Officer and Technical Advisor) had prior knowledge of and/or a relationship with Mr X, it was incumbent on Mr Miller to appropriately manage and declare his conflict of interest and the other conflicts of interest, at the commencement of and throughout the EOI process.
  1. [44]
    The Department says that it is clear from the investigation findings that Mr Miller did not properly declare and manage his own conflict of interest with Mr X, nor did he take any action to properly manage the conflicts of interest of other employees involved in the process.
  1. [45]
    The Department says that the investigation also found that Mr Miller did not review the Disclosure Statements provided by the other Evaluation Panel members and acknowledged that two panel members' Disclosure Statements were on the file but that Mr Miler did not look at them until the investigation.

Mr Underhill considered Mr Miller's submissions made in response to the First Show Cause Notice

  1. [46]
    The Department says that Mr Underhill carefully considered Mr Miller's submissions and that the 'thrust of his submissions was that it was not his role to review or assess the Disclosure Statements and that Mr Miller otherwise met his obligations as decision-maker in the Sandalwood EOI.
  1. [47]
    Mr Underhill was satisfied that while the Evaluation Plan did not expressly state that the decision-maker was required to review and assess the Disclosure Statements, it was 'nonetheless an implied requirement and a requirement that is clearly outlined in the Code of Conduct, relevant Directives and policies.'[13]  The Department says the Evaluation Plan states that Mr Miller will ensure probity throughout the process is maintained.
  1. [48]
    The Department says that 'fundamental to ensuring probity would have been to appropriately and proactively manage any conflicts of interest' and that Mr Underhill noted that to do otherwise would be a 'total departure from accepted standards and demonstrate a lack of accountability'.[14] Mr Underhill also considered that it would be reasonable and appropriate for Mr Miller to be aware and satisfied that there were no conflicts of interest that would have any impact on the recommendation and the final decision.
  1. [49]
    The Department submits that Mr Underhill carefully considered Mr Miller's submissions that he was not notified of any conflicts of interest by the Panel or the Probity Advisor.  Mr Underhill determined that based on the evidence before him, Mr Miller knew or ought to have known that the Panel Members would have a conflict of interest.  Specifically, Mr Miller had an extended working relationship of 10 years with Mr X, as did other panel members.
  1. [50]
    Mr Underhill expected that Mr Miller, as decision-maker and a senior AO8 Manager, would have exercised a high level of judgement to provide guidance and support to ensure that declarations were recorded transparently and properly managed.
  1. [51]
    With regard to Mr Miller's submission that the actions of the Probity Advisor during the EOI process meant that he had met his obligations, Mr Underhill found that there was 'no evidence' which demonstrated that the Disclosure Statements completed by panel members were actually referred to the Probity Advisor for advice.[15]
  1. [52]
    The Department says that in the decision, Mr Underhill advised Mr Miller that he was responsible for dealing with significant issues, including any conflicts of interest, and that it was incumbent on Mr Miller to actively take steps to appropriately deal with conflict-of-interest matters.
  1. [53]
    Mr Underhill was satisfied that Mr Miller knew, or ought to have known, that his past relationship with Mr X as an ex-employee and a former 'direct report' could be viewed by employees and members of the public as a situation that may give rise to influencing Mr Miller in carrying out his role properly and impartially with regard to the EOI and give rise to a perceived conflict of interest.
  1. [54]
    The Department says that Mr Underhill ultimately found that there was no evidence indicating Mr Miller had properly discharged his duties.  Mr Underhill determined that Mr Miller did not properly declare and manage his conflict of interest with Mr X or take any action to properly manage the other panel members' conflicts of interest.
  1. [55]
    The Department says that it is for those reasons that Mr Underhill was satisfied that Allegation 1 was substantiated.

No error or unreasonableness in making disciplinary findings

  1. [56]
    The Department says that Mr Miller has not demonstrated why the decision, or the process undertaken to arrive at the decision, was unfair or unreasonable.  The Department says that the First Show Cause Notice informed Mr Miller of the specific nature of the allegations against him and that he was provided with copies of the documents considered by Mr Underhill. Mr Miller's response was also considered by Mr Underhill.
  1. [57]
    The Department says that Mr Underhill's reasoning in coming to his decision is clearly set out in the decision letter. In that letter, Mr Underhill considered the evidence before him and highlighted the evidence he considered noteworthy.
  1. [58]
    The Department says that on the evidence available, a reasonable decision-maker would reach the same findings as Mr Underhill and that there is 'no lack of intelligible justification in the Decision, nor an absence of evidence on which Mr Underhill could rely'.[16]  Further, the Department says that Mr Miller's human rights were taken into account when making the decision.
  1. [59]
    The Department says the facts that Mr Underhill decided to give Mr Miller the benefit of the doubt and make no disciplinary findings in relation to Allegation 2 further demonstrates that Mr Underhill carefully considered the evidence before him and exercised his decision-making fairly and reasonably.

Response to Mr Miller's grounds of appeal

  1. [60]
    With regard to the first ground of appeal that Mr Underhill had a conflict of interest regarding the disciplinary process because he had made a decision to terminate the EOI on 31 January 2022, the Department says that Mr Underhill had no conflict of interest with regard to this matter and that the decision to terminate the EOI process does not create any bias or conflict in respect of the disciplinary process against Mr Miller. The Department says that the decision to terminate the EOI was necessary having regard to the facts established with the investigation report and Mr Underhill's responsibilities as Executive Director, Forestry.
  1. [61]
    The Department strongly rejects Mr Miller's assertion that he has been the subject of biased decision-making in relation to an unsuccessful application for promotion.  The Department submits that the temporary recruitment and selection process at question was undertaken in accordance with the merit principle and the requirements of Directive 12/20: Recruitment and Selection.  In any case, the Department says that the selection process is not relevant to the decision being appealed.
  1. [62]
    With regard to Mr Miller's appeal ground that the show cause process has been lengthy and has caused him stress, the Department says that the EOI was the subject of an extensive investigation process, including an internal review and a formal investigation. The formal investigation was completed in October 2021.  The Department submits that the disciplinary process was commenced following careful consideration of the investigation report and that First Show Cause Notice was dated 24 January 2022, Mr Miller's response was provided on 13 February 2022 and the Decision on disciplinary findings was provided by letter dated 27 May 2022.
  1. [63]
    With regard to Mr Miller's grounds of appeal stating that he is not to blame for issues regarding conflicts of interest and that blame should be placed with Mr Underhill and issues with policies and procedures, the Department says that Mr Miller raised similar issues in his response to the First Show Cause Notice and that these matters were comprehensively addressed in the decision.[17] Mr Underhill considered that these matters did not excuse Mr Miller's conduct and that as a public service employee, Mr Miller was required to commit to exercising proper diligence, care and attention and that he should have taken steps to deal with any actual, potential or perceived conflicts of interest.
  1. [64]
    With regard to Mr Miller's grounds of appeal addressing the allocated roles of the evaluation panel, the Department says that these were also raised in Mr Miller's response to the First Show Cause Notice and were considered and addressed in the decision.  It is raised in the Department's submissions above, but for completeness, I note that Mr Underhill was satisfied that although the Evaluation Plan did not expressly state that the decision-maker was to review and assess the Disclosure Statements, this was an implied requirement and was also required by the Code of Conduct, Directive and policies.
  1. [65]
    With regard to Mr Miller's submission that his response to the First Show Cause Notice was disregarded and he has concerns with the show cause process, the Department says that Mr Underhill had careful regard to Mr Miller's response and the concerns he had raised regarding the process and that this is clear when reading the decision letter dated 27 May 2022.
  1. [66]
    The Department rejects Mr Miller's assertion that subsequent action to review the framework, policies and procedures is an admission that there was an issue with competitive sales procedures to an extent that there is a flaw in the disciplinary finding. The Department says that the administrative action taken was reasonable and appropriate having regard to the systemic issues identified in the investigation report and that Mr Underhill was not prevented from commencing a disciplinary process when having regard to the matters referred to in Directive 14/20: Discipline.  The Department says that management action alone would not have been an appropriate response and that the seriousness of Mr Miller's conduct is compounded by his seniority and the fact that he has had at least 20 years of experience.
  1. [67]
    Mr Miller's eighth ground of appeal is that Mr Underhill has failed to establish that Mr Miller 'has not acted in the interests of the State in relation to the outcome of the valuation process'. The Department submits that it is irrelevant whether Mr Miller acted in the State's interest in respect of the EOI and/or whether Mr X was the best proponent for the EOI. The allegation was with regard to a failure to manage conflicts of interest with regard to the EOI process, not the outcome of the process.
  1. [68]
    With regard to the orders sought by Mr Miller, the Department submits that the orders sought are not orders that can be made by the Commission in deciding the Appeal.

Mr Miller's submissions in reply

  1. [69]
    Mr Miller filed his submissions in reply to the Department on 19 July 2022. 
  1. [70]
    Mr Miller says that he has participated in the show cause process and that he lodged this appeal 'given the Department has refused to properly and adequately consider relevant facts in relation to the matter and continues to prosecute the unreasonable disciplinary decision.
  1. [71]
    Mr Miller says that the information he has submitted to date is factual and relevant to the decision-making process and that contrary to the Department's claims, there is no evidence that the delegate or Department have seriously, adequately or fairly afforded proper consideration to the information he has provided and that much of it has been disregarded at the Department's convenience.
  1. [72]
    Mr Miller provides some emails from 2017 which he says 'implicates the decision maker has not fulfilled his responsibilities and highlights the existing conflict of interest (which has also been disregarded by the Department)'.
  1. [73]
    Mr Miller says that he has not been afforded procedural fairness given that Mr Underhill failed to act when this issue was identified in an internal audit in 2017 and that he made the decision to cancel 'the associated sandalwood EOI process without having all of the necessary information'.
  1. [74]
    Mr Miller says that the unreasonable disciplinary decision relies on 'implied requirements' and extending policy text and plans beyond that stated.  Mr Miller says that he has no way of knowing what an implied requirement is, only that which is stated in the relevant Department Evaluation Plan, which he followed.  Mr Miller says that he has followed similar plans in similar processes previously and no issues or concerns were raised by the Department in this regard.
  1. [75]
    Mr Miller considers that he has been trained by the Department on the job in completing the processes without reference to other Departmental policies. Mr Miller says that it is unreasonable for the Department to take disciplinary action where he has acted in accordance with the level of training he has received, largely through involvement in multiple processes that he has previously been involved in.
  1. [76]
    Mr Miller agrees that he, and other panel members, had a professional relationship with Mr X.  Mr Miller says that the Departmental policy does not identify professional relationships as a conflict of interest.  Mr Miller says that the Department's own policy lacks a basis for disciplinary action in this regard and therefore any disciplinary action imposed by the Department is unreasonable and inconsistent with its own policy.
  1. [77]
    Mr Miller rejects Mr Underhill's finding that he took no action at all to manage conflicts of interest in the process. Mr Miller advises that he managed conflicts of interest for himself and all those involved for all the EOI proponents, not just Mr X, in accordance with the Departmental Evaluation Plan for the EOI. Mr Miller says that he reinforced the importance of fairness and unbiased evaluation to the panel and that the panel then completed and recorded a fair evaluation. Mr Miller says that this is evidenced by the outcome of the process, in which the most meritorious expressions of interest were selected.  Mr Miller says that this 'demonstrates that I complied with the Code of Conduct, managed the conflicts of interest well and resolved the expression of interest in the public interest.'[18]
  1. [78]
    Mr Miller says that he discussed the conflicts of interest with the Probity Advisor who did not identify any concerns and that this was later confirmed in their report. Mr Miller therefore submits that he discharged his duties appropriately, in line with a 'reasonable application of Departmental policy and he has acted in accordance with the Code of Conduct and resolved the issue in the public interest.  Mr Miller says that the 'evidence of the process on the applicable departmental sandalwood file substantiates my management of this issue'.[19]
  1. [79]
    Mr Miller says that as a result of his recent investigations, he discovered that the Department was made aware that the evaluation process was not aligned with other departmental policy 5 years earlier via a formal internal audit and that the Department failed to act to address this issue.
  1. [80]
    Mr Miller says that Mr Underhill should have completed the action of updating the competitive sales processes and procedures as required by the 2017 internal audit which would have provided clarity in relation to the required process for subsequent panels and decision-makers to follow.  Mr Miller says it is unreasonable for him to be disciplined for the Department's inaction in this regard.
  1. [81]
    Mr Miller says that the Department have not followed precedent in that he has 'direct evidence of alternate, reasonable management actions [having] been afforded to other staff for similar competitive sale conflicts of interest issues'.  Mr Miller says it is unreasonable that he has not been afforded the same management action applied in other similar situations and this makes him think that he has been unfairly treated and targeted by the Department and their unreasonable decision.
  1. [82]
    Mr Miller says that he finds it 'astounding that both Mr Underhill, the Department's Ethics Unit and other senior staff cannot recognise and manage' Mr Underhill's conflict of interest as decision-maker in this matter.  Mr Miller says that Mr Underhill should have been removed as the decision-maker.
  1. [83]
    Further, Mr Miller says that despite also working with Mr X for 10 years, he cannot find any evidence on the correct departmental records that Mr Underhill completed any conflict-of-interest declaration in making his decision to cancel the Sandalwood EOI.
  1. [84]
    Mr Miller says that the Department only decided not to take any action with regard to Allegation 2 after Mr Miller highlighted the Department's 'failures and unreasonableness in this regard'.
  1. [85]
    Mr Miller says that 'given the reliance on 'implied requirements', lack of clarity, poorly designed process, policies and procedures, the obvious unaddressed conflict of interest, procedural fairness, failure to act on audit findings and precedent', he is confident that a reasonable person and Department would not have made the same unreasonable disciplinary findings.

Department's submissions in reply

  1. [86]
    The Department maintains that Mr Miller has been afforded procedural fairness throughout the investigation and disciplinary processes.  The Department submits that even if similar issues were identified in 2017 with regard to the templates and procedures for the disclosure of conflicts of interest in evaluation processes, it was open to Mr Underhill to be satisfied that the allegations were capable of being substantiated.
  1. [87]
    The Department submits that there is no evidence to suggest that Mr Underhill is biased or has otherwise treated Mr Miller unfairly.  Further, the Department submits that the internal review process evidenced in the attachment to Mr Miller's submissions demonstrates the Department's commitment to monitoring and taking appropriate steps to ensure probity issues of this nature are identified and corrected.
  1. [88]
    The Department denies Mr Miller's submission that Mr Underhill unfairly relied on  'implied requirements'.  The Department repeats its submission and the content of the decision which set out that as a public service employee, Mr Miller is expected to be familiar with, and comply with, the requirements of the Code of Conduct, Directive 3/10 and the Department's policy and procedures.  Further, the Department notes that the Evaluation Plan required that Mr Miller as the decision-maker receive the Evaluation Panel's completed Disclosure Statements and had an obligation to ensure probity throughout the process.
  1. [89]
    The Department maintains that it was 'clearly incumbent on Mr Miller to (at least) turn his mind to whether he had any actual, potential or perceived conflict of interest and whether any declared conflicts of interest, including declared conflicts of interest by Evaluation Panel members, were managed appropriately'.  The Department submits that Mr Miller did not do this.
  1. [90]
    The Department says that Mr Miller's submission that the policy does not identify professional relationships as a conflict of interest is misconceived in circumstances where his own Disclosure Statement identified a potential perceived conflict of interest in respect of Mr X, due to their prior working relationship.  The Department points to the Evaluation Plan which it says broadly describes potential conflicts of interest as 'any substantial circumstance or issue, including any current, prior or proposed association with proponents, which could possibly be construed as having the potential to influence the impartiality of the Evaluation Plan's deliberations'.  The Department says that the fact that Mr Miller and other panel members involved in the Sandalwood EOI had a previous working relationship with Mr X including the fact that Mr Miller worked with Mr X for approximately 10 years and was his direct line manager for a significant period of time meant that there were perceived, potential and actual conflicts of interest that had to be appropriately declared and managed.
  1. [91]
    While Mr Miller submits that he has been 'trained on the job' in completing the processes 'without reference to other Departmental policies' and that he has acted in accordance with the training he received, the Department notes that Mr Miller has regularly completed the Code of Conduct training and the online training module includes training in respect of conflicts of interest.
  1. [92]
    The Department relies on its previous submissions in support of its position that Mr Miller did not take action or discharge his duties in managing the disclosed conflicts of interest of both himself and other panel members regarding Mr X.
  1. [93]
    With regard to Mr Miller's submissions that he has been treated differently to others when comparing this situation to that of 2017, the Department says that there is no evidence to demonstrate that the administrative actions evidenced in the 2017 email trail produced by Mr Miller were the only actions taken by the Department and that there was no disciplinary or other action taken in respect of certain staff where appropriate.  Further to that, the Department says that the conflict-of-interest issues identified at that time were not the same or similar to the allegations against Mr Miller.
  1. [94]
    The Department also notes that, in respect of the Sandalwood EOI, Mr Miller is not the only departmental employee against whom allegations have been made and who is currently subject to disciplinary proceedings.
  1. [95]
    The Department says that Mr Miller appears to submit that Mr Underhill has pre-judged the disciplinary process in light of his decision to terminate the Sandalwood EOI.  The Department reiterates its previous submission that the decision to terminate was necessary having regard to the facts established in the Investigation Report.
  1. [96]
    The Department submits that there is nothing inappropriate or unreasonable about Mr Underhill being the decision-maker or delegate in respect of both the disciplinary process against Mr Miller and the decision to terminate the Sandalwood EOI.

Is the Appellant entitled to appeal?

  1. [97]
    Mr Miller received a letter containing the disciplinary findings on 2 June 2022 and filed an appeal against the decision with the Industrial Registry on 16 June 2022, within 21 days after receipt of the notice.
  1. [98]
    The PS Act provides that an employee may appeal a decision which the public service employee believes is unfair and unreasonable (a fair treatment decision).[20] I am satisfied that the Appellant may appeal the decision.

Appeal principles

  1. [99]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [100]
    Relevantly to this matter, s 562B(4) of the IR Act states that 'for an appeal against a decision about ... disciplinary action, the Commission must decide the appeal having regard to the evidence available to the decision maker when the decision was made'.
  1. [101]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker, should not be expected to be disturbed on appeal.
  1. [102]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. To determine the appeal, I will consider whether the decision to substantiate the allegations and determine that there was a disciplinary finding fair and reasonable.
  1. [103]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (b)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Consideration: Was the decision to substantiate the allegation and determine that there was a disciplinary finding fair and reasonable?

  1. [104]
    I have considered Mr Miller's submission that the process has been unfair and unreasonable and has significant flaws.  I also note that Mr Miller complains about what he says is the lengthy show cause process and the stress it says it has caused him.
  1. [105]
    Having had regard to all of the material available to me, I find that Mr Miller has been afforded procedural fairness throughout the progress of the matter from the internal review, the external investigation process and the disciplinary show cause process thus far.  Mr Miller has been given an opportunity to understand the issues and the allegations being put to him, has received an opportunity to be interviewed or provide responses, and the decision dated 27 May 2022 makes it clear that Mr Miller's responses have been considered by the delegate.  I note that the decision states that while the conduct subject of Allegation 2 was substantiated, it was determined that no disciplinary finding would be made regarding that Allegation. I find that this outcome demonstrates that the decision-maker carefully considered Mr Miller's submissions.
  1. [106]
    There is no evidence before me that the Department has caused there to be an unreasonable delay in either the internal review process, the investigation or the disciplinary show cause process. 
  1. [107]
    I have read Mr Miller's submissions regarding his unsuccessful application for a promotion and his suggestion that there was unfairness or bias in that process.  That is not a matter for me to consider in relation to this appeal and it is open to Mr Miller to consider if he has any avenues to explore any grievance he has with that process.
  1. [108]
    I have considered Mr Miller's allegation that Mr Underhill has demonstrated some bias or pre-judged the disciplinary matter by being both the decision-maker in the disciplinary matter and also making the decision to terminate the Sandalwood EOI.  Based on the material available to me, I find that it was open to Mr Underhill to take whatever action he thought was appropriate following the identification, review and investigation of issues with the Sandalwood EOI and this included termination of the EOI process, initiating other administrative actions and seeking to formally investigate the matter and initiate a disciplinary process in circumstances where he determined that local management action alone was not the  appropriate course of action.
  1. [109]
    I have read the material provided regarding the internal audit undertaken in response to concerns identified in 2017.  There is nothing in that material which serves to make it inappropriate for Mr Underhill to determine to undertake action in response to the conflict-of-interest issues identified with the Sandalwood EOI. I am unable to establish on the basis of that material that no action was taken with regard to particular individuals or that Mr Miller has received differential treatment or has been unfairly targeted in 2022 in relation to the Sandalwood EOI.
  1. [110]
    I understand Mr Miller's submission to be that the Department has an outdated framework and poorly aligned policies, procedures and plans.  I also understand that Mr Miller is aggrieved at what he perceives to be blame placed on him for the failure of the Department to address issues regarding the policy and framework following the 2017 review.  Associated with this is Mr Miller's submission that he was required to comply with the roles of the evaluation panel and the process set out in the evaluation plan and that it is unfair for the decision-maker to determine that there were requirements 'implied' or to be 'inferred' beyond that which was actually written down in that document.  I am unable to accept these submissions.
  1. [111]
    Mr Miller holds a senior role and is very experienced.  Mr Miller was the decision-maker for the EOI process and I find that it was reasonable for the decision-maker in the disciplinary matter to expect that Mr Miller would not only implement the evaluation plan and manage the evaluation process according to the written policies, but that he would do this against the backdrop of the full suite of expectations of a public servant to manage conflicts of interest.  Mr Miller had completed Code of Conduct training on an annual basis and this training clearly includes content regarding identifying and managing conflicts of interest.  In circumstances where a reasonable person would expect Mr Miller to identify, from his own general knowledge of the workplace and the situation,  that each panel member had a potential or perceived conflict of interest resulting from their long-term knowledge of Mr X, it was also reasonable to expect that this conflict of interest or perceived conflict of interest would be actively brought to the attention of the person with relevant delegation.  If Mr Miller did not know who this was, it was within his capacity to find out.
  1. [112]
    Mr Miller's statements that the result of the EOI was that the meritorious proponents were identified and the EOI was conducted in a way that resolved the issues in the State's interest misses the point that there are potential issues with the outcome of a merit process where there have not been active steps taken to manage the conflict of interest.  Without there being clear evidence that the conflicts of interest of Mr Miller and other panel members were properly raised, addressed and managed throughout the process, there is no way of knowing if the real or perceived conflicts impacted on what Mr Miller says was the 'fair evaluation of the matter'.  I agree with the decision-maker's statement on page 9 of the decision letter that Mr Miller's 'past relationship with Mr X as an ex-employee and a former direct report in a competitive EOI could be viewed by employees and members of the public as a situation that could influence and have a bearing on your carrying out your role properly and impartially with respect to the decision in regard to the EOI and give rise to a perceived conflict of interest'.
  1. [113]
    While the Departmental policy may not specifically list 'previous working relationship with proponent of over ten years including a period of time where the decision-maker was the line manager of the proponent', there can be no doubt that a reasonable person with Mr Miller's length of experience in the public service should have not only disclosed the conflict or perceived conflict, but actively sought advice on the conflict and to manage the conflict.  In fact, in circumstances where each person involved in the panel had a similar post-employment relationship with Mr X, it was entirely reasonable to expect that Mr Miller would ask for advice regarding the capacity of the panel members to continue with the EOI process or put steps in place to transparently manage the real or perceived conflicts of interest.  It was open to Mr Underhill to find that given Mr Miller's seniority 'it was poor judgement that you did not seek advice or raise the matter with the appropriate level Delegate – particularly in circumstances where you and every staff member involved with the EOI had prior knowledge/relationships with Mr X, giving rise to at least perceptions of a conflict of interest'.[21]
  1. [114]
    I understand Mr Miller's position that he reinforced to the panel that they were required to undertake a fair and unbiased evaluation.  However, without detailed evidence that the conflicts of interest of Mr Miller and the panel members were properly addressed by someone not immediately involved in the selection process and then managed throughout the process, I find that a reasonable person would not be confident that a fair and unbiased evaluation had taken place.
  1. [115]
    As I stated above, I find that it was open to the decision-maker to determine that given Mr Miller's seniority and the nature of the issue, it was appropriate that the conduct be dealt with through the disciplinary process rather than through local management action. Mr Miller will have the opportunity to make submissions about the nature of disciplinary action to be imposed in the second stage of the show cause process.  At that stage, Mr Miller will be able to raise his submissions regarding the action taken against other staff in circumstances he says are similar to this one.

Conclusion and order

  1. [116]
    Having had regard to all of the material available to me, including the investigation interview, the show cause letter and response, the decision letter, the submissions of the parties and the attachments I have been provided with, I find that it was reasonable for the decision-maker to determine that Allegation 1 was substantiated. 
  1. [117]
    Clause 1.2 of the Code of Conduct for the Queensland Public Service  deals with the requirement of employees to manage conflicts of interest.  I note in particular the following:

…

As public service employees we are committed to demonstrating our impartiality and integrity in fulfilling our responsibilities and as such we will:

  1. always disclose a personal interest that, now or in the future, be seen as influencing the performance of our duties.  This will be done in accordance with our agency policies and procedures
  2. actively participate with our agency in developing and implementing resolution strategies for any conflict of interest, and
  3. ensure that any conflict of interest is resolved in the public interest.
  1. [118]
    Clause 3.1 of the Code of Conduct requires employees, in part,  to 'comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and adhere to the policies, organisational values and organisational documents of our employing agency.'
  1. [119]
    Having found that the conduct subject of Allegation 1 had been proven on the balance of probabilities, I find that it was open to the decision-maker to find that pursuant to s 187(1)(g) of the PS Act, that Mr Miller had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely clauses 1.2 and 3.1 of the Code of Conduct.
  1. [120]
    I note that this appeal only addresses the disciplinary finding and that no decision has been made regarding disciplinary action to be implemented. 
  1. [121]
    The decision dated 27 May 2022 is confirmed.

Footnotes

[1] Respondent's submissions filed 5 July 2022, 3.

[2] Appeal notice filed 16 June 2022, 1.

[3] Ibid [1].

[4] Ibid.

[5] Ibid [3].

[6] Ibid [8].

[7] Respondent's submissions filed 5 July 2022, [5].

[8] The Department has suppressed Mr X's name to protect the integrity and confidentiality of the Sandalwood EOI.

[9] Respondent's submissions filed 5 July 2022, Annexure 1.

[10] Ibid Annexure 2.

[11] [2019] QSC 170, [207]-[209].

[12] Respondent's submissions filed 5 July 2022, [41].

[13] Ibid [46].

[14] Ibid [47].

[15] Ibid [49].

[16] Ibid [57].

[17] Decision letter from Mr Barry Underhill to Mr Ross Miller, 27 May 2022, [3]-[6], [16], [20].

[18] Appellant's reply submissions filed 19 July 2022, [6].

[19] Ibid [7].

[20] Public Service Act 2008 (Qld) ss 194(1)(eb), 196(eb).

[21] Decision letter from Mr Barry Underhill to Mr Ross Miller, 27 May 2022, [15].

Close

Editorial Notes

  • Published Case Name:

    Miller v State of Queensland (Department of Agriculture and Fisheries)

  • Shortened Case Name:

    Miller v State of Queensland (Department of Agriculture and Fisheries)

  • MNC:

    [2022] QIRC 388

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    11 Oct 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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