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  4. Barnett v State of Queensland (Queensland Health) (No. 2) - [2022] QIRC 435

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Barnett v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 435

Barnett v State of Queensland (Queensland Health) (No. 2)[2022] QIRC 435

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Barnett v State of Queensland (Queensland Health) (No. 2) [2022] QIRC 435

PARTIES: 

Barnett, Nina

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/441

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

10 November 2022

HEARING DATE:

29 March 2022

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision, namely, that:

  1. (a)
    Allegations One, Three and Four are substantiated; and
  1. (b)
    Allegation Five be set aside.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – appeal against disciplinary findings decision – whether decisions fair and reasonable

LEGISLATION:

Acts Interpretation Act 1954 (Qld), s 38

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

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

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Briginshaw v Briginshaw (1938) 60 CLR 336

Gilmour v Waddell & Ors [2019] QSC 170

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

APPEARANCES:

Ms N. Barnett, as self-represented Appellant.

Ms E. Reiher for the State of Queensland (Queensland Health).

Reasons for Decision

Introduction

  1. [1]
    Ms Nina Barnett ('the Appellant') is employed as the Director of Environmental Services by the State of Queensland (Queensland Health) ('the Respondent') within the Gold Coast Hospital and Health Service ('GCHHS').
  1. [2]
    Following receipt of a complaint by GCHHS, an external investigator, Ashdale, was engaged to conduct an investigation. Upon completion of the investigation, the Respondent issued a notice to show cause to the Appellant on 2 March 2021, requesting the Appellant respond to allegations concerning the Appellant's conduct and behaviour in the workplace.
  1. [3]
    Upon consideration of the Appellant's submissions regarding aspects of the notice to show cause, GCHHS re-drafted the notice to show cause and an amended notice to show cause dated 14 July 2021 was subsequently provided to the Appellant. The allegations outlined in the amended notice to show was as follow:

ALLEGATION ONE

On or about 16 July 2020, you inappropriately asked Ms Ruth Lachter if Mr Darrin Woods would be prepared to write a statement alleging Mr Nigel Hoy had inappropriately influenced a recruitment process.

...

ALLEGATION TWO

On or about 21 July 2020, you inappropriately asked Mr Darrin Woods to write a letter in support of Mr David Pennell, your partner, alleging Mr Nigel Hoy, Senior Director, had inappropriately influenced the recruitment process for the Service Manager, Environmental Services role.

...

ALLEGATION THREE

Between July and August 2020, you inappropriately attempted to interfere with the COVID casual recruitment process, undertaken while you were out of the workplace, when you contacted two Operational Support Services staff members about the process.

...

ALLEGATION FOUR

On or around 21 July 2020, you failed to act impartially and with integrity when you misused your position as a Director by attempting to solicit a statement from Mr Darrin Woods to support your partner, Mr David Pennell, with his appeal to the Queensland Industrial Relations Commission.

...

ALLEGATION FIVE

Since 4 April 2019, you have failed to treat Mr Wayne Williams with courtesy and respect when you demonstrated a pattern of inappropriate behaviour towards him.

...

  1. [4]
    On 4 November 2021, the Appellant provided a response to the amended notice to show cause to the Respondent.
  1. [5]
    On 6 December 2021, a disciplinary finding decision ('the decision') was issued by Mr Ron Calvert, Chief Executive, GCHHS, advising that Allegation Two was not substantiated on the balance of probabilities and that Allegations One, Three, Four and Five were substantiated on the balance of probabilities. Mr Calvert further advised that, on the basis of the findings in relation to Allegations One, Three, Four and Five, serious consideration was being given to the termination of the Appellant's employment pursuant to s 188 of the Public Service Act 2008 (Qld) ('the PS Act'). The Appellant was provided with seven calendar days to respond to the decision.
  1. [6]
    By appeal notice filed on 24 December 2021, the Appellant appealed the decision of Mr Calvert, pursuant to s 194(1)(eb) of the PS Act.

Appeal principles

  1. [7]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [8]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of Mr Calvert dated 6 December 2021 was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [9]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of Appeal

  1. [10]
    In the appeal notice, the Appellant provides extensive submissions regarding the decision which will be addressed below. In summary, the Appellant appeals the decision on the basis that:
  1. (a)
    insufficient consideration was given to the Appellant's responses and submissions;
  1. (b)
    the decision maker has not given proper weight to all submissions provided;
  1. (c)
    the decision maker, in stating that he believed the conduct the subject of Allegation Two occurred, albeit was unsubstantiated, gives rise to a disingenuous decision and is an intent to form a link to support the other allegations and to establish a pattern of behaviour based on minimal evidence;
  1. (d)
    the decision maker has taken a more punitive approach in considering Allegation Two as part of the Appellant's disciplinary matter;
  1. (e)
    the Respondent has not been clear on the expectations of the Appellant's role as a Director as well as health service policy for reportable matters;
  1. (f)
    the decision maker failed to consider the action taken by the Appellant in relation to the alleged conduct the subject of Allegation Three;
  1. (g)
    the substantiation of Allegation Five does not meet the balance of proof, the decision maker has not understood and/or disregarded the Appellant's submissions and the relevant applicable policies and further, the Appellant has not been given a fair hearing; and
  1. (h)
    GCHHS has failed to follow the Individual Employee Grievances Directive 11/20.
  1. [11]
    The Appellant also raises concerns in relation to conflicts of interest by the Human Resources Directors, Ms Hannah Bloch and Mr Grant Brown ('the HR Directors').

Submissions

  1. [12]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Submissions with respect to the individual allegations will be considered below. The parties' general submissions are otherwise summarised as follow.

Respondent's submissions

  1. [13]
    The Respondent denies that the Appellant was treated unfairly by GCHHS in relation to the decision, submitting the following:
  1. (a)
    Ms Barnett was on notice of the allegations and had opportunities to respond;
  1. (b)
    the evidence supporting the allegations is outlined in the first show cause letter;
  1. (c)
    the Health Service has followed a detailed and procedurally fair disciplinary process including providing several requested extensions and agreeing to Ms Barnett's unorthodox request to facilitate additional questioning of witnesses;
  1. (d)
    Mr Calvert considered all information available to him, including Ms Barnett's response, which is specifically referred to and quoted in the Decision;
  1. (e)
    Mr Calvert's findings and decisions are thoroughly explained and justified.
  1. [14]
    The Respondent further submits that:
  1. (a)
    Mr Calvert, as an administrative decision maker, is not bound by the rules of evidence and is entitled to prefer some evidence and witnesses over others. Mr Calvert confronted contrasting evidence and considered all possible scenarios before reaching his conclusions;
  1. (b)
    while the Appellant's explanations for her conduct may be relevant mitigatory considerations for the imposition of a disciplinary penalty, they are not a complete excuse or defence for her actions and do not change whether the conduct occurred;
  1. (c)
    it was not practical, nor necessary, for the decision to refer to each piece of evidence or submission;
  1. (d)
    it is not unreasonable or unfair of Mr Calvert to expect the Appellant be able to manage her conflicts of interest and working relationships with colleagues given the Appellant is an experienced public sector professional in the senior position of Director;
  1. (e)
    the Appellant's submissions or evidence relating to management and staff treating the Appellant fairly may be relevant to mitigation and the appropriate disciplinary penalty, which the Appellant can address in her second show cause letter response, but do not go to whether the conduct occurred; and
  1. (f)
    in relation to the Appellant's suggestion that Ms Bloch and Mr Brown did not separate their responsibilities and conflicts in this disciplinary matter, the Respondent submits that the HR Directors would typically approve and be consulted about each step of the disciplinary process and sign the show cause letters. Ms Bloch and Mr Brown have declared conflicts of interest and the GCHHS appointed Mr Calvert as the decision maker for the entire disciplinary process to avoid potential conflicts of interest.
  1. [15]
    In oral submissions, the Respondent maintained the position that, notwithstanding the re-issuance of the first show cause notice, the Appellant knew of all the allegations made against her in the first show cause letter and the Appellant was provided an opportunity to respond. The Respondent further maintains that the decision is based on the consideration of extensive evidence before Mr Calvert which is supported by intelligent justification and submits that it was reasonably open for Mr Calvert to make the decision.

Appellant's submissions

  1. [16]
    The Appellant rejects the Respondent's assertion that the Appellant was on notice of the allegations and had opportunities to respond, submitting that the evidence demonstrates the Appellant was procedurally and unfairly disadvantaged by the Respondent's unexplained, excessive delay in providing the Appellant with the full set of allegations. In support, the Appellant outlines the following:

i. The initial complaint was made on 21 July 2020 however, Ms Barnett wasn't provided with the first show cause notice until 2 March 2021.

ii. Noting also that the first show cause letter contained an error in how the grounds for discipline were expressed in the letter as disputed by the Together Union.

iii. A redrafted show cause letter was then sent to Ms Barnett on 20 July 2021 some 12 months after the initial compliant (sic) had been made.

iv. The health service in their appeal response advise (sic) the complaint was received on 20 September 2021, yet this is not provided.

  1. [17]
    The Appellant further rejects that the Respondent has followed a detailed and procedurally fair process, submitting that the Appellant was not made aware during the investigation interview of a 'character assassination' made against her by several GCHHS witnesses. The Appellant outlines the following:

i. Ms Barnett would have nominated her own witnesses at that time.

ii. This would have lead to a fair and procedurally correct disciplinary process.

iii. It was not until Ms Barnett received the first show cause notice on 2 March 2021 that she became aware of the highly damaging statements which were irrelevant to the process at hand, but which to Ms Barnett's genuine and honest belief were intentionally included to damage her character and create a bias against her right from the start of the investigation and continued throughout the disciplinary process.

iv. The delay meant Ms Barnett was disadvantaged.

  1. [18]
    The Appellant disagrees that Mr Calvert considered all information given to him and that his findings and decisions were thoroughly explained and justified.
  1. [19]
    The Appellant is aware of the local disciplinary process in which the HR Directors typically sign and approve show cause letters. The Appellant believes that it is reasonable to conclude the workflow and approval processes were still in place throughout the disciplinary process against the Appellant to date. The Appellant refers to the following as evidence of Ms Bloch and Mr Brown's involvement in the disciplinary process:
  1. (a)
    the signing of correspondence to the Appellant and being copied into emails;
  1. (b)
    Ms Bloch and Mr Brown's direct involvement in the reporting by Mr Darrin Woods, Environmental Services Officer, Operational Support Services, of the allegations against the Appellant on 21 July 2020;
  1. (c)
    Ms Bloch and Mr Brown provided instructions to Mr Nigel Hoy, Senior Director, Asset Management Services;
  1. (d)
    Ms Bloch met with Mr Woods on 22 July 2020;
  1. (e)
    Ms Bloch and Mr Brown provided ongoing advice to Ms Stacey Pitman, Acting Senior Director, for the management of the conflict between the Appellant and Mr Wayne Williams, Manager, Environmental Services;
  1. (f)
    the Human Resource Director is responsible for the statutory compliance and conduct function for GCHHS, as well as coordinated the commencement of the Ashdale investigation on 20 September 2020;
  1. (g)
    Mr Brown made the decision to suspend the Appellant in October 2020, which was almost four months after the complaint and Ms Bloch extended the Appellant's suspension in December 2020 based on information she was in receipt of;
  1. (h)
    the Appellant emailed Ms Bloch and Mr Brown regarding alternative work options;
  1. (i)
    each suspension letter issued included reference to Ms Bloch's decision in December 2020 and also provides Mr Brown as the contact person; and
  1. (j)
    Ms Emily Reiher, Senior Workplace Relations Advisor, sent correspondence and several of which Mr Brown were copied into.
  1. [20]
    The Appellant further submits that:
  1. (a)
    despite the Appellant's status as a public interest discloser, the appropriate protections and possible reprisals were not considered by Mr Calvert;
  1. (b)
    the delivery of the decision on 6 December 2021 was right before Christmas and the impact on reducing the 21 day appeal timeframe due to public holidays was intentional;
  1. (c)
    Mr Calvert has been misled in his decision making as he has relied upon experts in human resources for the provision of advice to him through a briefing process;
  1. (d)
    the evidence presented to Mr Calvert has been done in such a way as to find the Appellant guilty and ignores procedural issues and failings by senior officers;
  1. (e)
    there is no 'conduct' charge to answer and her actions were justifiable and in accordance with relevant legislation; and
  1. (f)
    it is unreasonable for Mr Calvert to not accept that the actions the Appellant took were sufficient.
  1. [21]
    In addition to submissions, the Appellant provided an extensive chronology with respect to the disciplinary process.

Respondent's submissions in reply

  1. [22]
    The Respondent, in reply, submits that the chronology document provided by the Appellant includes substantial subjective evidence and submissions not limited to objective or agreed facts. The Respondent submits that the chronology cannot be accepted in its entirety.
  1. [23]
    The Respondent submits that the Appellant's submissions that that the appropriate public interest disclosure ('PID') protections and possible reprisal actions were not properly considered are not relevant to whether the Appellant engaged in the alleged conduct and whether the allegations are appropriately substantiated. Further, the Respondent highlights that the Appellant did not properly or fulsomely raise these matters in her show cause response or explain their relevance and that Mr Calvert could only make a decision on the information before him.
  1. [24]
    The Respondent further submits that public holidays do not reduce any appeal timeframes and highlights that the timeframe would be extended to the next business day pursuant to s 38 of the Acts Interpretation Act 1954 (Qld) if the timeframe for filing fell on a public holiday. The Respondent submits that this issue is ultimately irrelevant, as the Appellant requested an extension and was granted until 12 January 2022 to provide her response to the decision.
  1. [25]
    The Respondent acknowledges that Ms Bloch and Mr Brown were involved in some of the procedural aspects of the disciplinary procedure, however, denies Ms Bloch or Mr Brown were involved in the decision making for the disciplinary decisions and notes that they had declared conflicts of interests and did not sign any briefs for approval for the formal disciplinary steps.

Consideration

  1. [26]
    Consideration of this appeal requires a review of the decision to substantiate Allegations One, Three, Four and Five to determine if the decision was fair and reasonable in the circumstances.

Allegation One

  1. [27]
    Allegation One was outlined as follows:

On or about 16 July 2020, you inappropriately asked Ms Ruth Lachter if Mr Darrin Woods would be prepared to write a statement alleging Mr Nigel Hoy had inappropriately influenced a recruitment process.

  1. [28]
    The particulars of Allegation One was outlined as follows:

Particulars

  1. (a)
    Mr Darrin Woods is:
  1. (i)
    employed as an OO3 Environmental Services Officer within the Operational Support Services division of the Gold Coast University Hospital; and
  1. (ii)
    a Delegate of the Australian Workers' Union.
  1. (b)
    Mr Nigel Hoy is employed as the AO8 Senior Director of Asset Management Services at the Gold Coast Hospital and Health Service (GCHHS).
  1. (c)
    Ms Ruth Lachter is:
  1. (i)
    a Delegate of the Australian Workers' Union; and
  1. (ii)
    an OO2 Environmental Services Officer based at Gold Coast University Hospital.
  1. (d)
    Mr David Pennell is:
  1. (i)
    an OO4 Team Leader in Environmental Services at Gold Coast University Hospital;
  1. (ii)
    your partner and as a result you have a personal relationship;
  1. (iii)
    at the time the recruitment process described in (f) below commenced had been acting in an OO7 Manager role of approximately a year. Prior to this he had been acting in an OO6 Assistant Manager Role for approximately two years, doing multiple short stints in an OO8 Manager role.
  1. (e)
    In relation to the organisational structure:
  1. (i)
    Mr Darrin Woods and Ms Lachter report through to you through several intermediary managers;
  1. (ii)
    Mr Pennell, at the time relevant to this allegation, reported to you through an intermediary manager;
  1. (iii)
    you have declared a conflict of interest in relation to your personal relationship with Mr Pennell which was managed, at a prior time when Mr Pennell was acting in a position that reported directly to you, by having Mr Pennell report to an alternate manager.
  1. (f)
    In late 2019, GCHHS commenced a recruitment process to engage three Service Managers within Environmental Services. The role was advertised between 7 January 2020 and 21 January 2020.
  1. (g)
    Mr Hoy was responsible for selecting the independent recruitment panel members to undertake the recruitment and selection process. Mr Hoy did not himself sit on the panel.
  1. (h)
    One of the applicants for the Service Manager role was Mr Pennell.
  1. (i)
    Mr Pennell was interviewed but ultimately unsuccessful in the recruitment process.
  1. (j)
    In June 2020, Mr Pennell commenced an appeal in the Queensland Industrial Relations Commission (QIRC) in relation to the Service Manager recruitment outcome.

…

  1. (k)
    Ms Lachter was Mr Pennell's Union Delegate in his QIRC appeal.
  1. (l)
    On 24 August 2020, the QIRC dismissed the appeal, concluding that Mr Hoy did not influence the outcome of the recruitment process.
  1. (m)
    In an unrelated process in early 2020, GCHHS undertook a significant recruitment drive of casual employees in response to the COVID-19 pandemic. As part of this drive, Matthew Woods (the son of Darrin Woods) was employed in this cohort on 25 March 2020 until 12 July 2020, after which he was deemed not suitable to continue as a casual.
  1. (n)
    In early July 2020, Mr Darrin Woods approached Ms Lachter for advice and assistance with the decision not to continue his son as a casual. Ms Lachter agreed to assist.
  1. (o)
    In or around the week of 6 July 2020 Ms Lachter visited you in your office to discuss matters in relation to Darrin Woods' son and the circumstances of him being removed as a casual. You agreed to look into it.
  1. (p)
    On or about 16 July 2020, Ms Lachter visited your office a second time to discuss Matthew Woods' case. In that meeting:
  1. (i)
    You informed Ms Lachter that you had been assured that Matthew Woods' employment had ended following all the correct processes.
  1. (ii)
    You then raised the earlier conversation with between Mr Hoy and Darrin Woods relating to the recruitment process for the Service Manager positions and Mr Pennell's application…
  1. (iii)
    You stated words to the effect that Mr Woods had relayed a conversation with Mr Hoy to you, in which Mr Hoy said that Mr Pennell would not be getting the manager's job.
  1. (iv)
    You then asked Ms Lachter if Darrin Woods 'would be prepared to put something in writing' to that effect.
  1. (q)
    Ms Lachter relayed the request for the statement to Darrin Woods and told him that you 'would help' with his son's case if he made the statement.
  1. (r)
    In all of the context, your discussion with Ms Lachter about Mr Pennell's case was inappropriate because:
  1. (i)
    your request to Ms Lachter and Mr Darrin Woods to arrange a statement in support of your partner, Mr Pennell, should not have been made in circumstances where:
  1. (A)
    each of Ms Lachter and Mr Darrin Woods were in a reporting line through to you;
  1. (B)
    you had a conflict of interest in relation to Mr Pennell; and
  1. (C)
    the disputed role the subject of Mr Pennell's appeal was also a role with a direct reporting line to you.
  1. (ii)
    the request, of itself, reflected inappropriate management of the conflict of interest caused by your personal relationship with Mr Pennell; and
  1. (iii)
    by discussing those matters subsequent to discussing matters relating to Darrin Wood's son, and asking Mr Darrin Woods for (in effect) a statement, you permitted an inference to be created that if Darrin Woods provided the statement for the purposes of Mr Pennell's appeal, you would help with his son's re-employment.
  1. [29]
    The Appellant submits that the conversation between herself and Ms Lachter was 'about merely passing on the request by Mr Pennell to Ms Lachter'. The Appellant contends that there is no direct evidence of anything else and by itself is reasonable and would not constitute corrupt conduct. The Appellant takes issue with the use of the word 'inference' in the decision. The Respondent submits that it was fair and reasonable for Mr Calvert to determine that the manner in which the Appellant conducted herself created a degree of probability that she would assist Mr Woods' son with his re-employment if he provided the statement for her.
  1. [30]
    The Appellant does not deny asking Ms Lachter if Mr Woods would be prepared to put something in writing about his discussion with Mr Hoy regarding Mr Pennell's application. Prior to this comment, the conversation between Ms Lachter and the Appellant had centred on the employment of Mr Woods' son's re-employment. The investigator found that there was evidence of Ms Lachter and Mr Woods that there was a connection between Mr Woods preparing a statement and the Appellant assisting his son's re-employment. Whilst the Appellant contends that she asked Ms Lachter in her capacity as Mr Pennell's support person, the senior nature of the Appellant's role gives rise to an inference that the request of Mr Woods was made in the capacity of the Appellant's role as a senior employee rather than a support person. It was open to Mr Calvert to consider that it was reasonably foreseeable that the method by which the Appellant asked Ms Lachter if Mr Woods would be prepared to write a statement would give rise to such an inference and that this conduct constituted a failure to manage conflicts of interest as a Director.
  1. [31]
    Mr Calvert stated in the decision that even if no such inference arose, it was reasonably foreseeable that Ms Lachter would inform Mr Woods of the question about him preparing a statement. This request placed Mr Woods in a position where he may have reasonably felt compelled or pressured to prepare the statement given the request came from the Appellant who is a senior employee at the GCHHS. It was open to Mr Calvert to determine that these circumstances demonstrate the Appellant's failure to properly manage her conflict of interest with Mr Pennell's employment.

Allegation Two

  1. [32]
    Allegation Two was outlined as follows:

On or about 21 July 2020, you inappropriately asked Mr Darrin Woods to write a letter in support of Mr David Pennell, your partner, alleging Mr Nigel Hoy, Senior Director, had inappropriately influenced the recruitment process for the Service Manager, Environmental Services role.

  1. [33]
    The particulars of Allegation Two was outlined as follows:

Particulars

…

  1. (d)
    On or about 21 July 2020, you had a conversation with Mr Darrin Woods outside the building while you were having a cigarette.
  1. (e)
    You invited Mr Woods to that discussion while he was at the desk of Ms Rebecca Goewie.
  1. (f)
    In the discussion with Mr Woods you spoke about:
  1. (i)
    an investigation of which Mr Woods was the subject officer; and
  1. (ii)
    matters relating to natural justice in that process and advised Mr Woods to complain that he had been given no 'natural justice' in the investigation process.
  1. (g)
    After this conversation, you and Mr Woods returned to your office. You then asked Mr Woods if he remembered a conversation he had had with Mr Hoy in which Mr Hoy had stated words to the effect that Mr Pennell would not be getting the Environmental Services Manager position.
  1. (h)
    You then asked Mr Woods words to the effect of whether he would write a letter setting out this conversation to support Mr Pennell in his QIRC appeal.
  1. (i)
    Mr Woods said he would think about it and get back to you.
  1. [34]
    Mr Calvert determined that there was insufficient evidence to substantiate this allegation. The Appellant submits that it is inconsistent or unfair for Mr Calvert to consider and to express his views as to the likelihood of something occurring while also determining there is insufficient evidence to prove it did occur to the requisite standard of proof. It was open to Mr Calvert to make this observation and ultimately make a decision based on the principles in Briginshaw v Briginshaw[5] that there was insufficient evidence to establish that the conduct occurred.
  1. [35]
    As a consequence of the decision that Allegation Two was not substantiated, there was no disciplinary finding arising from this allegation. 

Allegation Three

  1. [36]
    Allegation Three was outlined as follows:

Between July and August 2020, you inappropriately attempted to interfere with the COVID casual recruitment process, undertaken while you were out of the workplace, when you contacted two Operational Support Services staff members about the process.

  1. [37]
    The particulars of Allegation Three was outlined as follows:

Particulars

  1. (a)
    Mr Wayne Williams:
  1. (i)
    is the Manager of Environmental Services responsible for all wards except theatre;
  1. (ii)
    acted in your role as Director while you were on leave between 31 March 2020 to 13 July 2020; and
  1. (iii)
    was involved in hiring casual staff during the COVID-19 recruitment drive in March 2020 and the subsequent management of that list.
  1. (b)
    Ms Rebecca Goewie is:
  1. (i)
    a Department Support Officer in Environmental Services; and
  1. (ii)
    was responsible for arranging the roster for casuals (including those in the COVID-19 recruitment drive) and organising their payment.
  1. (c)
    Ms Breanna Kingsley is an AO3 Director Support Officer reporting directly to you.
  1. (d)
    Mr Williams, Ms Goewie, and Ms Kingsley are each in your reporting line and report to you either directly of indirectly.
  1. (e)
    In June 2020, the GCHHS was required to reduce the number of 'COVID casuals' from 240 down to 60. In relation to this process:
  1. (i)
    The casual workers were asked to complete an internal expression of Interest to remain in the ES Casual Pool.
  1. (ii)
    Mr Williams assessed these applications against selection criteria and created three lists setting out:
  1. (A)
    casuals who were successful and would remain in the Casual Pool;
  1. (B)
    casuals who were not successful but may be considered for future opportunities; and
  1. (C)
    casuals who failed to meet one or more of the criteria and would not be considered for future opportunities.
  1. (iii)
    Matthew Woods was included on the third list, which also included reasons for not progressing including negative referee reports and a complaint from a member of the public.
  1. (f)
    On the morning of 22 July 2020, you asked Ms Goewie to email the lists of successful and unsuccessful COVID casuals.
  1. (g)
    At 9.38am, Ms Goewie copied you into an email containing the list of successful applicants in the reduced COVID casual pool.
  1. (h)
    Later that morning you telephoned Ms Kingsley and told her that the list of successful COVID casuals was missing Matthew Woods' name.
  1. (i)
    Ms Kingsley then telephoned Ms Goewie and:
  1. (i)
    Ms Kingsley said to the effect you had reviewed the lists and that one person was missing from the list of successful applicants;
  1. (ii)
    Ms Goewie asked for the name of the casual;
  1. (iii)
    Ms Kingsley replied to the effect 'I'd rather not say' or 'I can't say';
  1. (iv)
    Ms Goewie asked if it was Matthew Woods and Ms Kingsley confirmed that it was.
  1. (j)
    Mr Williams then telephoned you and subsequently emailed you the documentation relating to Matthew Woods.
  1. (K)
    In the context of the conversations with Mr Darrin Woods in the preceding days (as set out above in relation to Allegation One and Two), your discussion with Ms Kingsley demonstrates an initial attempt to have Matthew Woods re-employed in exchange for Mr Darrin Woods' support of Mr Pennell.
  1. [38]
    Statements from Ms Rebecca Goewie, Department Support Officer, Mr Alex Wilkes, Service Manager, and a Ms Dixon were obtained as part of Ashdale's investigation report. The Appellant submits that those statements should be discounted due to bias because of the influence by Mr Williams and potential reprisal actions by Mr Williams against the Appellant. There is no evidence that the statements were unreliable or influenced by Mr Williams.
  1. [39]
    The Appellant submits that 'it is obviously impossible for a person without proper authority to nevertheless seek to influence an outcome'.  It may be impossible for a person without proper authority to actually influence an outcome, but it is entirely possible for a person without authority to attempt to influence an outcome. It is not necessary that Mr Woods' son was added to a list or that others were persuaded to do so, with the allegation only extending to the Appellant's conduct in attempting to interfere with the process.
  1. [40]
    The Appellant did not deny that she asked Ms Goewie to email her the lists of successful and unsuccessful COVID casuals and that after receiving the list of successful applicants, telephoned Ms Kingsley and told her that the list of successful COVID casuals was missing Mr Matthew Woods' name. This evidence supported a conclusion that the Appellant inappropriately attempted to interfere with the COVID casual recruitment process. On the evidence before him, it was open to Mr Calvert to substantiate this allegation. 
  1. [41]
    The Appellant submits that she has PID status with protections against Mr Williams, however it is unclear how this is relevant to this allegation.

Allegation Four

  1. [42]
    Allegation Four was outlined as follows:

On or around 21 July 2020, you failed to act impartially and with integrity when you misused your position as a Director by attempting to solicit a statement from Mr Darrin Woods to support your partner, Mr David Pennell, with his appeal to the Queensland Industrial Relations Commission.

  1. [43]
    The particulars of Allegation Four was outlined as follows:

Particulars

  1. (a)
    This Allegation four repeats and relies on the particulars of Allegation Two.
  1. (b)
    The conversation alleged between you and Mr Darrin Woods on 21 July 2020 concerned in circumstances where:
  1. (i)
    Ms Lachter had recently asked you to assist with Matthew Woods' case;
  1. (ii)
    You had recently asked Darrin Woods, through Ms Lachter, to provide a statement in support of Mr Pennell;
  1. (iii)
    The meeting occurred in a private setting (while you were on a cigarette break); and
  1. (iv)
    The meeting was out of the ordinary management course due to the relative disparity in positions between you and Mr Woods.
  1. (c)
    In the days following this meeting, you sought to initiate the reinstatement of Mr Matthew Woods on the COVID casual pool, as set out in Allegation Three above.
  1. (d)
    The conversation occurred in circumstances where:
  1. (i)
    you are Mr Pennell's partner;
  1. (ii)
    Mr Darrin Woods reports through several managers to you;
  1. (iii)
    Mr Pennell works in the same operational group as you and Mr Darrin Woods;
  1. (iv)
    you had declared a conflict of interest in relation to Mr Pennell;

and this was

  1. (v)
    inappropriate management of your conflict of interest in relation to Mr Pennell;
  1. (vi)
    inappropriate discharge or you (sic) responsibilities as manager of the operational group; and
  1. (vii)
    an inappropriate application of pressure or influence to Mr Darrin Woods, your subordinate staff member.
  1. [44]
    The Appellant submits that it has not been proven that the Appellant 'solicited information'. The allegation is not that the Appellant did solicit the information under Allegation Four, only that the Appellant 'misused [her] position as a Director by attempting to solicit a statement…'.
  1. [45]
    Mr Calvert outlined his consideration of the Appellant's response and determined that the allegation was substantiated on the balance of probabilities. Mr Calvert outlined his reasons for this finding, including the following:
  1. (a)
    You do not deny that during the discussion on 16 July 2020 you asked Ms Lachter if Mr Darrin Woods 'would be prepared to put something in writing' reiterating his discussion with Mr Hoy regarding Mr Pennell's application.
  1. (b)
    You also do not deny that the conversation alleged between you and Mr Darrin Woods on 21 July 2020 occurred.
  1. (c)
    These conversations occurred in circumstances where:
  1. (i)
    Ms Lachter had recently asked you to assist with Mr Matthew Woods' case;
  1. (ii)
    you had recently asked Ms Lachter if Mr Darrin Woods would assist Mr Pennell's case by preparing a statement;
  1. (iii)
    Mr Darrin Woods reports through several managers to you;
  1. (iv)
    Mr Pennell works in the same operational group as you and Mr Darrin Woods;
  1. (v)
    you are Mr Pennell's partner; and
  1. (iv)
    you had declared a conflict of interest in relation to Mr Pennell.
  1. (d)
    As outlined above in relation to Allegations One and Two, these circumstances gave rise to inferences that you were acting in your position as Director when you requested Mr Darrin Woods to prepare the statement, or it was reasonably foreseeable that Mr Woods would feel compelled or pressured to provide the statement given your position with the Health Service and the fact you are in his reporting line.
  1. (e)
    I acknowledge your submission that the request for a statement from Mr Darrin Woods was made for Mr Pennell and on his behalf. While I understand this submission, the request nevertheless came from you and for the benefit of your partner. Regardless, it has not been alleged that the statement was requested to be made for you. The relevant allegation is that you asked Mr Darrin Woods, through Ms Lachter, to provide a statement in support of Mr Pennell. The fact that the statement was requested to be made on Mr Pennell's behalf and for Mr Pennell does not negate your involvement in relation to making the request.
  1. (f)
    I acknowledge your submission that you have not been given any further instructions regarding your declared conflict of interest in relation to Mr Pennell beyond the instructions that you cannot be involved in the recruitment process for the Service Manager positions. However, it is expected that, as an experienced professional in the position of a Director, you would be able to effectively navigate ethical issues arising from your disclosed conflict of interest.
  1. (g)
    I accept that there is insufficient evidence that you intended to misuse your position; however, I am satisfied you at least inadvertently misused your position and failed to act impartially and with integrity in doing so.
  1. [46]
    The Appellant contends that she had PID status following her reporting of allegations against Mr Williams, and that her inquiries were made in line with this disclosure. The Appellant again raises concerns about conflicts of interest and consideration of her PID status, stating that she reported possible reprisal action by Mr Williams, however her submissions were dismissed or ignored. The issue of whether Mr Williams engaged in reprisal does not address the particulars of this allegation.
  1. [47]
    The evidence of Ms Lachter to the Ashdale investigation was that she spoke to the Appellant about Mr Woods and the Appellant stated she would 'assist' and 'look into' Mr Woods' son's employment.
  1. [48]
    On the basis of the available evidence, it was open to Mr Calvert to determine that the Appellant failed to act impartially or with integrity by attempting to solicit a statement from Mr Woods in support of the Appellant's partner.

Allegation Five

  1. [49]
    Allegation Five was outlined as follows:

Since 4 April 2019, you have failed to treat Mr Wayne Williams with courtesy and respect when you demonstrated a pattern of inappropriate behaviour towards him.

  1. [50]
    The particulars of Allegation Five was outlined as follows:

Particulars

  1. (a)
    On a number of occasions, you have demonstrated discourteous or inappropriate behaviour towards Mr Williams, which, viewed objectively, could reasonably be expected to humiliate and/or intimidate Mr Williams including:
  1. (i)
    On multiple occasions, you accused Mr Williams of 'stabbing [you and other managers] in the back' by backfilling her position;
  1. (ii)
    On 17 April 2019 you commented on the way Mr Williams was holding his glasses in a disparaging manner and stated it is 'not a good look';
  1. (iii)
    You frequently questioned Mr Williams' about his arrangement to split his Rostered Day Off across 2.5 hours on Monday afternoons to spend time with his son who has a disability;
  1. (iv)
    On 20 July 2020, you questioned other managers about Mr Williams' Rostered Days Off, rather than speaking with Mr Williams personally;
  1. (v)
    You repeatedly inquired as to Mr Williams' partner and her son working at GCHHS in an accusatory manner on 14 July 2020 and 15 July 2020, and implied that Mr Williams was attempting to conceal conflicts of interest; and
  1. (vi)
    You texted Mr Williams on 29 July 2020 while he was on a sick day informing him that his application for leave was denied when this could have been done at the workplace the next day;
  1. (vii)
    On 30 July 2020, you questioned Mr Williams decision to roster an employee hired under the Young Veterans Employment Scheme, where there was no reason to question this decision.
  1. [51]
    The Appellant submits that the conduct in relation to Mr Williams was outside of the scope of the terms of reference and should be excluded from this process. I note Mr Calvert's comments in the decision that the scope of an investigation may undergo changes necessary as the investigation progresses. This is contemplated in the Crime and Corruption Commission's 'corruption in focus' Guide.
  1. [52]
    The Appellant submits that this allegation should be removed from this process as the matter between her and Mr Williams was being managed as per the local resolution process. At the time of her suspension, the Appellant states that she had agreed to participate in mediation with Mr Williams. The Appellant contends that the inclusion of Allegation Five is prejudicial and pre-emptive and denied her procedural fairness by moving the matter from the local complaints process to a disciplinary process. The Appellant also submits that the purpose of including this allegation is to try to persuade the delegate by providing an alleged pattern of behaviour to support the initial corrupt conduct allegation.
  1. [53]
    The Appellant contends that Ms Pitman discounted the multiple reporting of Mr Williams' conduct and that the Appellant continued to report concerns through Ms Pitman and to Mr Ron Potts, former Senior Director, and Mr Brown for over 16 months.
  1. [54]
    In the decision, Mr Calvert addresses the Appellant's concerns regarding procedural processes. I accept that procedural fairness does not require that an employee be notified of a complaint immediately upon its receipt, however, it does require that an employee be made aware of an allegation prior to being questioned about the complaint. The Appellant participated in the Ashdale investigation without being advised that the investigation had expanded to include the allegation made by Mr Williams. The evidence of Ms Carol Brown, who attended the interview as the Appellant's support person, was that the investigator referred quite briefly to some of Mr Williams' allegations regarding the Appellant's alleged treatment of him. The Appellant advised the investigator that the conflict was being managed by Ms Pitman and the parties were due to participate in mediation. The Appellant was not aware of the information provided by other employees supportive of Mr Williams' allegations prior to the interview.
  1. [55]
    There has clearly been a breakdown in the relationship between Mr Williams and the Appellant, with the existence of PIDs and internal complaints adding to the difficult working relationship between the parties. The manner in which this allegation developed, with Mr Williams' raising concerns during his interview with the investigator, Ms Donna Scovell, was not inherently problematic. It was open to the investigator to obtain further information about this complaint as Ms Scovell did in interviewing Mr Wilkes, Ms Goewie and Ms Dixon. It is not uncommon for other issues to emerge outside the original scope of an investigation and for these issues to then form part of the ongoing investigation. However, procedural fairness should have been afforded to the Appellant through the provision of particulars of the complaint prior to the interview to allow adequate time to prepare her response. The Appellant attended the interview with the knowledge that she would be questioned about potential corrupt conduct involving the casual pool of employees. Allegation Five is, however, entirely distinct and could not realistically have been anticipated by the Appellant. The fact that the Appellant was of the view that internal mediation processes were on foot at this time would also have impacted on the responses she provided to Ms Scovell. It was not reasonable to move this matter from a local complaints process to a disciplinary process without explanation and forewarning to the Appellant. I accept that the Appellant was afforded the opportunity to respond to the allegation at the show cause stage, however this does not mitigate the procedural failures upon which the investigator made her conclusions and the allegation was ultimately based.
  1. [56]
    In my view, it was not fair and reasonable to substantiate Allegation Five following the failure to provide procedural fairness to the Appellant. If the Respondent is of the view that this allegation should be pursued, a fair process involving a fresh investigation should occur allowing both Mr Williams and the Appellant to nominate witnesses and provide responses. 

Disciplinary finding

  1. [57]
    On the basis of the substantiated allegations, Mr Calvert determined that there were grounds for the Appellant to be disciplined with the proposed disciplinary action. The Appellant was provided an opportunity to respond to the proposed disciplinary action and a decision has not yet been made.
  1. [58]
    Following the substantiation of Allegations One, Three and Four, Mr Calvert determined there are grounds for the Appellant to be disciplined pursuant to the following:
  1. (a)
    s 187(1)(b) of the PS Act; or in the alternative
  1. (b)
    s 187(1)(g) of the PS Act, specifically contraventions of cls 1.1 and/or 1.2 and/or 4.1 of the Code of Conduct for the Queensland Public Service.
  1. [59]
    Following the substantiation of Allegation Five, Mr Calvert determined that the Appellant has contravened, without reasonable excuse, a relevant standard of conduct, namely cl 1.5 of the Code of Conduct for the Queensland Public Service on the basis that the Appellant's behaviour towards Mr Williams was not inclusive and courteous. As indicated in [56], it was not fair and reasonable to substantiate Allegation Five due to the failure to afford procedural fairness. Accordingly, this disciplinary finding is set aside.

Other matters

  1. [60]
    The Appellant submits that her 'alternative theory' was not given fair consideration by Mr Calvert. The decision refers to the Appellant's alternative theory at paragraph 4.2(g) of the decision. The 'alternative theory' posits that Mr Woods complained to Mr Hoy and Ms Bloch about the alleged request for a statement as an opportunity to achieve a favourable outcome to a discipline process against him. Mr Calvert's decision acknowledged this submission, however, there was no requirement to respond specifically to a speculative theory that may have explained the motivation behind the actions of others but was not relevant to the specific allegations to be considered.
  1. [61]
    The Appellant made extensive submissions, both written and oral, regarding the role of Ms Bloch and Mr Brown in the process. The Respondent acknowledges that both Ms Bloch and Mr Brown were involved in some of the procedural aspects of the disciplinary procedure, however, submits that both Ms Bloch and Mr Brown declared conflicts of interest and did not sign any briefs for approval for the formal disciplinary steps.
  1. [62]
    It is not uncommon for senior human resources employees to be involved in disciplinary processes, as these tasks usually form part of their role. This involvement, however, must be managed appropriately to ensure that those employees subject to disciplinary findings and disciplinary actions are subject to a fair and reasonable process. In this matter, Ms Bloch and Mr Brown were involved in managing the original complaint, including the engagement of the independent investigators. At the point when the matter escalated to the formal disciplinary stage, Ms Bloch and Mr Brown took appropriate steps to ensure that any conflict was managed by declaring conflicts of interest and refraining from signing briefs associated with the formal disciplinary process. Upon the Appellant's suggestion, the Respondent provided the briefs for consideration as part of this appeal. It is clear that the briefs were authored by other employees and that detailed 'Declaration of Interests' of both Ms Bloch or Mr Brown were outlined in all briefs.
  1. [63]
    The decision was ultimately made by Mr Calvert after consideration of the material before him, including briefs authorised by other employees. Whilst Ms Bloch and Mr Brown may have been involved in the earlier stages of the process, I am satisfied that the conflict was managed appropriately in these circumstances.
  1. [64]
    The Appellant submits that her status as a public interest discloser was not considered by Mr Calvert. The determination of whether the Appellant engaged in the conduct as alleged and the subsequent disciplinary finding is a separate consideration to that involving PIDs. The Appellant submits that she has PID status with protections against Mr Williams effective as of July 2020 and that the Respondent 'failed to consider the public interest disclosures made by Ms Barnett and possible reprisal actions'. An allegation of reprisal is serious and should be addressed through the appropriate process. I note, however, that the protections afforded through the PID process do not extend to inoculating the Appellant from disciplinary processes where there is evidence of wrongdoing. I also note the Respondent's submission that the Appellant did not fulsomely raise these matters in her show cause response, leaving Mr Calvert to make his decision only on the information available before him.
  1. [65]
    The Appellant submits that Mr Calvert has not fully considered her responses and that the advice to Mr Calvert has been prejudicial. The Appellant contends that the evidence supporting this conclusion is that Mr Calvert's decisions are not thoroughly explained and an absence of responses to the Appellant's specific points. The Appellant provided an extensive and detailed response annexing ten attachments to the show cause notice. There are significant parts of the response that are simply not relevant to the decision Mr Calvert had to make. After reading the lengthy decision, I am satisfied that Mr Calvert has provided detailed reasons for the determinations he has made. I note the Respondent's submission that the evidence and responses in this matter spans hundreds of pages. It is not necessary that every contention raised by the Appellant be addressed, particularly if the decision maker does not consider it to be relevant to the decision to be made. The reasons addressing the central issues and consideration of the evidence supporting the disciplinary findings have been explained adequately.
  1. [66]
    I have outlined my concerns about the procedural fairness afforded to the Appellant with respect to Allegation Five. I note, however, that the content of Allegation Five was distinct and separate to the content of the other allegations. To be clear, I am not of the view that the consideration of evidence in Allegation Five impacted the decision to substantiate the other allegations. Mr Calvert outlined in detail the evidence upon which he made his determinations with respect to the other allegations and this evidence did not arise out of the material relevant to Allegation Five.
  1. [67]
    The Appellant made submissions that the process by which the show cause notice was re-issued was flawed. The Appellant's union raised concerns about the original show cause notice on the basis that it had multiple grounds rather than singular grounds. The Appellant contends that when the show cause noticed was re-issued, the particulars 'tighten up the allegations when the original ones were written quite loose'. The Appellant submits that the Respondent took advantage of re-issuing the notice to 'clean up' and tighten the particulars. The provision of more detailed particulars is generally regarded as a positive action in that it provides clarity to the other party. It is unclear how such actions can be seen to be 'taking advantage'. The decision to particularise the allegations in greater detail in the re-issued show cause notice was not unreasonable. Although the re-issuing of the show cause letter caused a delay, there is no evidence that this delay prejudiced the Appellant. The Appellant was afforded the same amount of time to respond to the second notice and the Appellant's request for an extension was granted such that she had a longer period within which she could prepare her response.
  1. [68]
    The Appellant submits that the Respondent intentionally delivered the decision 'right before Christmas' to impact the 21 day time limitation period within which an appeal could be filed. There is no evidence that the Respondent timed the decision to have any impact on the Appellant's appeal rights. I also note that s 38 of the Acts Interpretation Act 1954 (Qld) provides that where the last day for filing falls on a public holiday, the timeframe for filing extends to the next business day. The Appellant has not been prejudiced as a consequence of receiving the decision on 6 December 2021.
  1. [69]
    The disciplinary process thus far has allowed the Appellant to facilitate additional questioning of witnesses and extensions of time to respond to the allegations. I am satisfied that the Appellant was afforded procedural fairness with respect to allegations One, Three and Four. My concerns regarding Allegation Five are outlined above. 

Conclusion

  1. [70]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[6] 

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

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

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

  1. [71]
    Applying the principles outlined above, I do not consider that the decision to substantiate Allegations One, Three and Four lacks justification in the circumstances. Based on the information before me, I am satisfied that the decision to substantiate Allegations One, Three and Four is supported by evidence and is fair and reasonable in the circumstances.
  1. [72]
    For the reasons outlined above, I do not consider that the decision to substantiate Allegation Five was fair and reasonable. Accordingly, this allegation is to be set aside.

Order

  1. [73]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with another decision, namely, that:

  1. (a)
    Allegations One, Three and Four are substantiated; and
  1. (b)
    Allegation Five be set aside.

Footnotes

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

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

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

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

[5] (1938) 60 CLR 336.

[6] [2019] QSC 170, [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Barnett v State of Queensland (Queensland Health) (No. 2)

  • Shortened Case Name:

    Barnett v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2022] QIRC 435

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    10 Nov 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
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.

1

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