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  4. Wall v State of Queensland (Department of Education) - [2022] QIRC 460

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Wall v State of Queensland (Department of Education)[2022] QIRC 460

Wall v State of Queensland (Department of Education)[2022] QIRC 460

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Wall v State of Queensland (Department of Education) [2022] QIRC 460

PARTIES:

Wall, Geoffrey Raymond

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/615

PROCEEDING:

Public Service Appeal – Appeal against decision under another Act

DELIVERED ON:

25 November 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – Public Service Appeal – where appellant lodged an appeal for relocation pursuant to s 47 of the Public Interest Disclosure Act 2010 (Qld) – decision deemed to have been made not to relocate the appellant on the filing of a public service appeal – whether appellant has established the ground under s 47(2) of the Public Interest Disclosure Act 2010 (Qld) – ground not established – decision fair and reasonable

LEGISLATION:

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

Public Interest Disclosure Act 2010 (Qld), ss 28, 40, 47 and sch 4

Public Service Act 2008 (Qld), s 194

CASES:

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

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

Reasons for Decision

Introduction

  1. [1]
    Mr Geoffrey Raymond Wall ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as a teacher.
  1. [2]
    On 14 March 2022, the Appellant made a disclosure to the Crime and Corruption Commission ('CCC') pursuant to the Public Interest Disclosure Act 2010 (Qld) ('the PID Act') with respect to alleged evidence of corrupt conduct by Mr Andrew Oliver, Principal, Cairns School of Distance Education ('CSDE').
  1. [3]
    On 16 March 2022, the CCC referred the disclosure back to the Respondent for management.
  1. [4]
    On 10 May 2022, the Appellant sought advice from Ms Andrea Skennar, Principal Human Resources Consultant, Human Resources Business Partnering, Far North Queensland, on how the Appellant could apply for relocation under the PID Act.
  1. [5]
    On 7 June 2022, Ms Skennar informed the Appellant that the process required the filing of a public service appeal at the Queensland Industrial Relations Commission ('the Commission'), appealing a decision taken to have been made under s 47(4)(b) of the PID Act.
  1. [6]
    On 14 June 2022, pursuant to s 194(1)(f) of the Public Service Act 2008 (Qld) ('the PS Act'), the Appellant filed an appeal notice in the Commission, seeking relocation pursuant to s 47 of the PID Act.

Legislative framework

  1. [7]
    Section 194(1)(f) of the PS Act provides that an appeal may be made against a decision about anything else against which another Act allows a person to appeal.
  1. [8]
    Section 47 of the PID Act relevantly provides:

47Relocation of public service employee

  1. (1)
    This section gives a public service employee a right to apply for relocation.
  1. (2)
    The application must be made on the ground that—
  1. (a)
    it is likely a reprisal will be taken against the public service employee if the employee continues in the employee’s existing work location; and
  1. (b)
    the only practical way to remove or substantially remove the danger of a reprisal is to relocate the employee.
  1. (3)
    The application may be made by the public service employee to the industrial relations commission under the Industrial Relations Act 2016.
  1. (4)
    For the purposes of subsection (3)—
  1. (a)
    the application is taken to be an appeal against a decision under the Public Service Act 2008 not to relocate the employee; and
  1. (b)
    the decision mentioned in paragraph (a) is taken to have been made by the chief executive of the employee’s department on the day the employee makes the application under subsection (1).
  1. (5)
    If the industrial relations commission considers the ground is established, the commission may direct that the employee be relocated within the employee’s department or to another department.
  1. (6)
    The industrial relations commission can not direct that the employee be relocated without the agreement of—
  1. (a)
    the public service employee; and
  1. (b)
    if the relocation is to another department—the other department’s chief executive.
  1. (7)
    For subsection (5), the industrial relations commission has power to do, or authorise the doing of, anything necessary or convenient to relocate the public service employee.
  1. (8)
    In this section—

public service employee see the Public Service Act 2008, schedule 4.

  1. [9]
    The effect of the Appellant filing an application in the form of an appeal notice, pursuant to s 47(1) of the PID Act, is that the notice is taken to be an appeal against a decision to not relocate the employee made by the chief executive on the day the employee files the appeal notice. Accordingly, the decision not to relocate the Appellant is taken to have been made by the chief executive of the Respondent on 14 June 2022.
  1. [10]
    Section 47(5) of the PID Act provides the Commission the power to direct that the Appellant be relocated within the Respondent or to another department only if the ground under s 47(2) is established.

Appeal principles

  1. [11]
    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. [12]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to not relocate the Appellant 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. [13]
    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.

The appeal notice

  1. [14]
    In the appeal notice, the Appellant outlined the following reasons for appeal:

I have submitted a PID with regards to the Principal of Cairns School of Distance Education. Both the CCC and INTAKE have deemed the complaint worthy of investigation and enquiries are proceeding. I have sought support granted to me by the legislation at all levels of the department (EQ) - school, district office, regional office and head office - for over 10 weeks and have had no meaningful response. Over 5 weeks ago, I contacted the principal consultant for HR in our region RE: temporary relocation and she took 4 weeks to respond. She pointed me to the QIRC and this particular form/process indicating the deemed decision not to transfer. I still fear reprisal(s) at my workplace and have been documenting these for the entirety of this process (to date). Upon submission of the original complaint, I engaged private legal counsel - Mark Peters of Peters/Bosel Cairns - who is aware of everything that has transpired.

Submissions of the parties

  1. [15]
    Both parties, in their submissions, outlined an extensive chronology of events prior to the Appellant lodging the appeal. The particulars of the parties' chronology will be considered below.
  1. [16]
    The Appellant's submissions can be summarised as follows, that:
  1. (a)
    the Appellant was entitled to seek support from the Respondent under the PID Act during the investigation process. However, to date, the Appellant has not received any meaningful response from the Respondent in relation to his multiple enquiries to a number of people regarding support; and
  1. (b)
    the Respondent has shown no interest in offering any support and as such felt the need to explore the option of temporary relocation while investigations continued.
  1. [17]
    The Respondent defends the appeal on the basis that the Appellant 'has made no discernible attempt' to establish the ground under s 47(2) of the PID Act.
  1. [18]
    The Respondent submits that the decision not to relocate the Appellant is fair and reasonable, contending the following:
  1. a.
    The Appellant is not at risk of reprisal action;
  1. b.
    The Appellant has not been threatened with reprisal action;
  1. c.
    The Appellant's fear of reprisal action has no basis in fact or evidence;
  1. d.
    The Appellant should apply to the Respondent for relocation when he becomes eligible;
  1. e.
    The Disclosure was closed on 23 June 2022 and is now a historical matter;
  1. f.
    The Disclosure will have no effect on the management of the Incident when resumed; and
  1. g.
    The Disclosure will have no effect on the Appellant or his employment with the Respondent.

Consideration

  1. [19]
    The application for relocation is taken to be an appeal against a decision under the PS Act not to relocate the employee pursuant to s 47(4) of the PID Act.
  1. [20]
    The Respondent submits that on 8 March 2022, Mr Oliver became aware that an incident involving the Appellant and one or more employees had occurred earlier that day ('the Incident'). The Respondent submits that Mr Oliver immediately began to manage the Incident with guidance from the Respondent's Human Resources Unit.
  1. [21]
    On 11 March 2022, the Appellant met with Mr Kirk Findlay, Deputy Principal, CSDE, and provided him with a copy of a document he alleged was evidence of corrupt conduct by Mr Oliver. Following this meeting, the Appellant raised a grievance based on the alleged threatening conduct of Mr Findlay during the meeting. In response to this grievance, a Stage 1 local action decision and a subsequent Stage 2 internal review decision was provided. An external review was not sought of the internal review decision. The decision that was made and upheld through the process was that no action would be taken against Mr Findlay.
  1. [22]
    The Appellant made a disclosure to the CCC alleging corrupt conduct by Mr Oliver on 14 March 2022. On 16 March 2022, the CCC determined that the disclosure should be managed by the Respondent and referred the disclosure back to the Respondent. The disclosure was then managed by Ms Vicki Godkin, Director, Human Resources Business Partnering, Far North Queensland, and Ms Julie Valentine, Senior Human Resources Consultant, Human Resources Business Partnering, Far North Queensland.
  1. [23]
    On 23 June 2022, Ms Godkin notified the Appellant and Mr Oliver that the Respondent had finalised its management of the disclosure and that the Respondent had determined that there was 'sufficient information to establish that the incident did not occur'.
  1. [24]
    In relation to the Incident of 8 March 2022, Mr Oliver instructed Ms Sussann Rankine, Teacher, CSDE, to assist him by inquiring about the Incident. The Respondent submits that Ms Rankine was selected to undertake this task because of her familiarity with evidence based reasoning due to her status as a Queensland Barrister.
  1. [25]
    Mr Oliver commenced an internal secondment to the role of Acting Lead Principal, Regional services, Far North Queensland, on 26 April 2022 for reasons unrelated to the Appellant's disclosure.
  1. [26]
    Mr Chris Rigden was appointed to the role of Acting Principal at CSDE due to Mr Oliver's absence on internal secondment. The Respondent submits that Mr Rigden would not have known about the disclosure if it were not for a letter sent to him by the Appellant's legal representative, Mr Peters. The Appellant disputes this submission and contends that he advised Mr Rigden on 18 March 2022 that he had made a public interest disclosure against Mr Oliver.
  1. [27]
    As part of his role as Acting Principal, Mr Rigden had responsibilities relating to the Appellant's employment which included overseeing Ms Rankine's inquiry into the Incident and overseeing the Appellant's work performance during his probationary period. On 17 May 2022, Mr Rigden signed a probationary document regarding the Appellant, certifying that the Appellant's service was satisfactory and confirming his appointment. The Respondent submits that the Appellant also signed this document.
  1. [28]
    The Appellant commenced a period of sick leave supported by medical evidence on 2 June 2022. He returned for a week on 11 July 2022 before commencing a further period of leave. Mr Rigden instructed Ms Rankine to pause her inquiry into the Incident so that the Appellant would be able to participate in the process. At the time of the Respondent's submissions, the inquiry remained paused.
  1. [29]
    The Appellant submits that he spoke to Mr Rigden on 18 March 2022 in an attempt to access support, however, Mr Rigden refused to speak to him and insisted that the Appellant speak with Mr Oliver. Mr Rigden then became Acting Principal in Term 2 following the secondment of Mr Oliver to Regional Office.
  1. [30]
    The Appellant submits that the Deputy Principal who had allegedly threatened him, Mr Findlay, remained in place as his direct line manager. The Appellant states that he made a request in writing that he be moved into a different line management stream 'given the seriousness of the situation', however, Mr Findlay responded that the Executive Leadership Team had met and denied the request. It was at this point, the Appellant submits, that he felt he needed to explore the option of temporary relocation to another site while the investigations continued.
  1. [31]
    The Appellant submits that following the filing of this appeal he was informed by colleagues of concerning events taking place at CSDE in his absence, particularly the behaviour of Mr Findlay regarding his belongings and his professional reputation. The only information provided particularising this submission was an attached letter sent from the Appellant's solicitor to Mr Rigden on 10 June 2022. This letter states that enquiries in the nature of a 'fishing expedition' had been made by Mr Findlay with other members of staff to identify issues that could 'be levelled' against the Appellant, along with reference to an incident involving Ms Kendall Jones[5] making comments to colleagues about unmarked papers. The letter states that the Appellant's inquiries as to the status of a complaint that had been made against him by a colleague were also not addressed. Further, the letter states that the Appellant feels victimised by reprisals against him for having taken the risk of raising a public interest disclosure against his Principal. 
  1. [32]
    The Appellant submits the following:

… Under the Public Interest Disclosure Act (PID), I believed I was entitled to seek some level of support from the Education Department while the investigation process took place. Starting on the 18th of March, I began the process of trying to request access to this support by approaching the school's Deputy Principal, Chris Rigden … 

  1. [33]
    The specific provision upon which the Appellant relied upon to seek support has not been outlined, however I have taken the Appellant's submissions as referring to s 28(1)(a) of the PID Act which provides that the chief executive officer of a public sector entity must establish reasonable procedures to ensure that public officers who make public interest disclosures are given appropriate support. This matter has not been brought on the basis of a contravention of s 28(1)(a) nor that the inadequate provision of support is to be considered reprisal for the purposes of s 47 of the PID Act. 
  1. [34]
    Section 47 of the PID Act provides that an employee may apply for relocation on a particular ground. Section 47(5) allows the Commission to direct that the employee be relocated if the particular ground is established. The ground that must be established is outlined in s 47(2) which states that the application must be made on the ground that:
  1. (a)
    it is likely a reprisal will be taken against the public service employee if the employee continues in the employee's existing work location; and
  1. (b)
    the only practical way to remove or substantially remove the danger of a reprisal is to relocate the employee.
  1. [35]
    Consideration must firstly be given to the meaning of the term 'reprisal' for the purposes of the PID Act. Section 40 of the PID Act provides:

40Reprisal and grounds for reprisal

  1. (1)
    A person must not cause, or attempt or conspire to cause, detriment to another person because, or in the belief that—
  1. (a)
    the other person or someone else has made, or intends to make, a public interest disclosure; or
  1. (b)
    the other person or someone else is, has been, or intends to be, involved in a proceeding under the Act against any person.
  1. (2)
    An attempt to cause detriment includes an attempt to induce a person to cause detriment.
  1. (3)
    A contravention of subsection (1) is a reprisal or the taking of a reprisal.
  1. (4)
    A ground mentioned in subsection (1) as the ground for a reprisal is the unlawful ground for the reprisal.
  1. (5)
    For the contravention mentioned in subsection (3) to happen, it is sufficient if the unlawful ground is a substantial ground for the act or omission that is the reprisal, even if there is another ground for the act or omission.
  1. [36]
    The term 'detriment' is defined in sch 4 of the PID Act:

detriment includes—

  1. (a)
    personal injury or prejudice to safety; and
  1. (b)
    property damage or loss; and
  1. (c)
    intimidation or harassment; and
  1. (d)
    adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business; and
  1. (e)
    financial loss; and
  1. (f)
    damage to reputation, including, for example, personal, professional or business reputation.
  1. [37]
    To successfully appeal a decision in this matter, an appellant must demonstrate that it is likely that reprisal, being the cause, or attempt or conspire to cause detriment as outlined in sch 4 of the PID Act, will be taken against him because he made the public interest disclosure or has been or intends to be involving a proceeding under the PID Act.
  1. [38]
    The Appellant submits that colleagues were concerned about the behaviour of two colleagues 'with regard to my belongings and my professional reputation', however, no further details are provided as to the basis for his concern about his belongings. The Appellant also submits that he feels as though his teaching career is in peril if he continues at CSDE. On the limited information provided, it appears that the likely detriment is that outlined in (d) and (f) of sch 4, being 'adverse discrimination, disadvantage or adverse treatment about career, profession, employment, trade or business' and 'damage to reputation, including, for example, personal, professional or business reputation'. It is unclear whether the Appellant contends that there was an attempt to cause or conspire to cause detriment or that actual detriment was caused.
  1. [39]
    In consideration of the above, the Appellant bears the onus of proving, on the balance of probabilities, that it is likely that actions have or will be taken that damage his professional reputation or adversely discriminate, disadvantage or treat him adversely because of the public interest disclosure he made on 14 March 2022.
  1. [40]
    The difficulty with the Appellant's submissions is that they detail a general grievance that does not support a conclusion that reprisal is likely to be taken against him should he remain in his existing work location. The submissions relating to the behaviour of Mr Findlay regarding his belongings and his professional reputation are not particularised in any detail. The only specific information provided was outlined in the letter sent to the Respondent by the Appellant's legal representative dated 10 June 2022 attached to his submissions. An allegation that Mr Findlay asked staff members to identify issues that could 'be levelled' against the Appellant was made, however, there are no particulars to support this allegation beyond the bare assertion. Details outlining when this comment was alleged to have been made, to whom it was made and the context in which it was made were not provided.
  1. [41]
    The letter from the Appellant's legal representative also referred to a comment made by Ms Jones in a meeting about unmarked papers belonging to the Appellant. Section 40(1) of the PID Act provides that, to satisfy the elements of 'reprisal', a person must cause, or attempt or conspire to cause, detriment because, or in the belief that, the other person has made or intends to make a public interest disclosure. There is no information before me to suggest that Ms Jones' comment was made because of the disclosure, nor that Ms Jones was even aware of the disclosure. The letter's contention that the Appellant's inquiries as to the status of a complaint made against him by a colleague had not been addressed could not reasonably be described as reprisal.
  1. [42]
    In the Appellant's submissions in reply, he contends that Mr Oliver's appointment of Ms Rankine to investigate the Incident was a violation of policy. The question of whether the appointment of Ms Rankine to investigate the Incident was appropriate or not does not inform the issue of whether the Appellant is likely to suffer a reprisal, as the Incident was not the disclosure. Although there are clear protections afforded to a discloser under the PID Act, including protection from reprisals, it is not unreasonable for management to investigate a separate employee complaint. Providing a public interest disclosure does not inoculate an employee from reasonable management action. The details of the Incident and subsequent investigation were not put before the Commission and I am not required to inquire into the appropriateness of the investigation into that matter. In the event that the Appellant is not afforded procedural fairness in the investigation and determination of matters associated with the Incident, he would have recourse through the appeal provisions of the PS Act.
  1. [43]
    The actions taken on 17 May 2022 by Mr Rigden as Acting Principal in signing a probationary document confirming that the Appellant's service was satisfactory and his appointment was to be confirmed supports a finding that his career was not adversely impacted by the disclosure.
  1. [44]
    On the information before me, I cannot be satisfied that it is likely that a reprisal will be taken against the Appellant if he continues in his work location at CSDE. In circumstances where s 47(2)(a) of the PID Act is not satisfied it is not necessary to consider s 47(2)(b).
  1. [45]
    I also note the Respondent's submission that the management of the disclosure had finalised with a determination that the incident did not occur. Accordingly, there is no current investigation into the disclosure. This does not render the appeal futile, as s 47 of the PID Act is not restricted to reprisal for disclosures which are not yet finalised. It is noteworthy in this matter simply because the Appellant indicated that he sought 'temporary relocation to another site while the investigations continued'. I have considered if this appeal satisfies the statutory grounds outlined in s 47 regardless of the status of the disclosure, however, note that this determination may have limited practical effect given the Appellant's original request for temporary relocation only.
  1. [46]
    In circumstances where the onus is on the Appellant to establish the ground pursuant to s 47 of the PID Act, the Appellant has not satisfied this onus.
  1. [47]
    For the foregoing reasons, I am satisfied that the decision to not relocate the Appellant is fair and reasonable in the circumstances.

Order

  1. [48]
    I make the following order:

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

Footnotes

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

[2]Brandy v Human Rights and Equal Opportunity Commission (1995) 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]Head of Department with IT duties.

Close

Editorial Notes

  • Published Case Name:

    Wall v State of Queensland (Department of Education)

  • Shortened Case Name:

    Wall v State of Queensland (Department of Education)

  • MNC:

    [2022] QIRC 460

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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