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Millward v Office of the Public Guardian[2022] QIRC 468

Millward v Office of the Public Guardian[2022] QIRC 468

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Millward v Office of the Public Guardian [2022] QIRC 468

PARTIES:

Millward, Alan

(Appellant)

v

Office of the Public Guardian

(Respondent)

CASE NO:

PSA/2021/255

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

1 December 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDER:

I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – consideration under s 562A of the Public Service Act 2008 (Qld) whether to dismiss appeal – where appellant formerly employed by the respondent – where appellant lodged an individual employee grievance – where appellant brought appeal – where the appellant subsequently ceased employment – whether the Commission should continue to hear the appeal – where compelling reasons – appeal dismissed

LEGISLATION AND
INSTRUMENTS:

Directive 11/20 Individual employee grievances

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

Public Service Act 2008 (Qld) ss 196

CASES:

Kiely v State of Queensland (Queensland Health) [2021] QIRC 252

Venables v State of Queensland (Queensland Health) [2022] QIRC 137

Reasons for Decision

  1. [1]
    Mr Alan Millward is a former employee of the State of Queensland. He was employed by the Office of the Public Guardian ('the OPG') in the role of AO8 Senior Project Officer.
  2. [2]
    On 19 July 2021, Mr Millward filed an appeal under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act') arising from an individual employee grievance lodged by him in late 2020. Through his appeal he sought to challenge:
  1. (a)
    a decision of Ms Victoria Thomson, Deputy Director-General of the Department of Justice and Attorney-General, made 16 June 2021; and
  2. (b)
    the failure of Mr Robert Setter, Public Service Commission Chief Executive, to make a decision in accordance with cl 10 of the Directive 11/20 Individual employee grievances ('the Directive').
  1. [3]
    On 7 February 2022, after receiving final submissions in the above appeal, Mr Milward advised the Commission that he ended his employment with the OPG on 4 February 2022.
  2. [4]
    The OPG maintains Mr Milward no longer has standing to continue his appeal, given he is not a 'public service employee'.
  3. [5]
    The issue for my consideration is whether I ought to continue to hear the appeal having regard to the fact that Mr Millward is no longer an employee of the State of Queensland.
  4. [6]
    For the reasons that follow, I decline to hear the appeal.

Background

  1. [7]
    On 1 December 2020, Mr Millward lodged a grievance with the OPG in accordance with the Directive. In his grievance, he made a number of allegations regarding the conduct of six senior officers within the OPG ('the OPG Senior Leadership Group'). Included among those individuals was then A/Public Guardian, Ms Shayna Smith.
  2. [8]
    The nature of the allegations made by Mr Millward relate to what he perceived to be an intention to bully, harass and intimidate him in his role managing an organisational development and improvement project. Relevantly, in that role, Mr Millward was required to report to a Project Board consisting of Ms Smith as the Project Executive and Chair of the Board, and the remaining members of the OPG Senior Leadership Group as members of the Board.
  3. [9]
    As a consequence of her position as chief executive officer of the OPG, and in accordance with cl 10 of the Directive, Mr Setter was assigned to consider the allegations made against Ms Smith.
  4. [10]
    Ms Thomson was assigned to consider the allegations made against the remaining members of the OPG Senior Leadership Group.
  5. [11]
    On 16 June 2021, Ms Thomson notified Mr Millward that the 12 allegations and sub‑allegations assigned to her were not able to be substantiated on the balance of probabilities and no further action would be taken in relation to them.[1]
  6. [12]
    Mr Millward sought updates from Mr Setter with respect to his decision on 21, 23 and 29 June 2021. On 5 July 2021, he indicated an intention to commence proceedings in this Commission.
  7. [13]
    As mentioned above, Mr Millward filed his appeal on 19 July 2021, seeking to challenge both Ms Thomson's decision and Mr Setter's failure to make a decision.
  8. [14]
    On 27 July 2021, Mr Setter notified Mr Millward that the eight allegations relating to Ms Smith were also unable to be substantiated on the balance of probabilities and no further action would be taken in relation to them.[2]
  9. [15]
    In order to progress this matter, I issued directions for submissions on the appeal. After those submissions had been received, Mr Millward terminated his employment.
  10. [16]
    Further directions were subsequently issued seeking submissions as to whether the Commission ought to continue to hear the appeal.

Relevant Principles

  1. [17]
    The Industrial Relations Act 2016 (Qld) ('the IR Act') relevantly provides:

562A Commission may decide not to hear particular public service appeals

...

(3) The commission may decide it will not hear a public service appeal against a decision if –

(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or

(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal –

(i) is frivolous or vexatious; or

(ii) is misconceived or lacks substance; or

(iii) should not be heard for another compelling reason.[3]

Mr Millward's Submissions

  1. [18]
    Mr Millward disputes the characterisation that he resigned from his employment, submitting instead he has entered into early retirement.[4] Nonetheless, he argues this has had no material impact on the:
  1. (a)
    substance of his appeal;
  2. (b)
    functions of the Commission;
  1. (c)
    jurisdiction of the Commission to hear and decide his appeal;
  2. (d)
    ability of the Commission to consider whether the decisions appealed against were fair and reasonable having regard to s 562B of the IR Act; or
  3. (e)
    ability of the Commission to direct the OPG to take action in relation to his appeal, if successful, having regard to s 562C of the IR Act.[5]
  1. [19]
    Mr Millward argues the Commission must perform its functions in a way that avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.[6] He disputes the OPG's assertion he no longer has standing to bring his appeal, maintaining he retains standing under the PS Act and the Directive unless the Commission determines there is a compelling reason not to hear the appeal, or it is no longer convenient to do so.[7]
  2. [20]
    In this respect he argues his substantive submissions establish an arguable case, and his appeal is not frivolous, vexatious, misconceived or lacking in substance.[8] Nor does he consider the fact that he is no longer employed by the OPG to constitute a compelling reason not to hear his appeal.[9]
  3. [21]
    He submits it would be a further failure in procedural fairness if his appeal was not heard.[10] In reply submissions, Mr Millward disputes the OPG's characterisation that any order of the Commission, other than to confirm the decisions appealed against, would be futile.[11] Instead, he argues the hearing of his appeal would not be futile or of no practical use to him, as an individual, having regard to his interests and rights that arise under the same laws and principles of public administration that apply to the OPG.[12] Similarly, he argues it is not futile or of no practical use for decisions of senior public officials relating to alleged misconduct by other senior public officials, to be reviewed by the relevant integrity body.[13]
  4. [22]
    Finally, Mr Millward submits that the functions of the Commission in relation to public service appeals are at the core of integrity in decision-making in relation to employees of the State of Queensland.[14] Consequently, he argues it would be contrary to procedural fairness and the values inherent in Queensland's industrial relations system if ending his employment was considered a 'compelling reason' not to hear his appeal.[15]

The OPG's Submissions

  1. [23]
    The OPG contends Mr Millward no longer has standing to continue his appeal as he is no longer a public service employee as required under s 196 of the PS Act.[16] Accordingly, it submits the Commission lacks jurisdiction to hear the appeal.[17]
  2. [24]
    Further or in the alternative, the OPG argues there is little practical utility in hearing the appeal where Mr Millward is no longer an employee.[18] Having regard to the decisions the Commission can make under s 562C of the IR Act, the OPG submits it would be futile to make any decision other than to confirm the decision being appealed.[19] Even if the Commission was to find the decisions of Mr Setter and Ms Thomson unfair and unreasonable, it argues Mr Millward's resignation has the effect of limiting the Commission's options.[20]
  3. [25]
    The OPG submits it is 'not insignificant' that the Directive states an individual employee grievance arises when it is submitted by 'a current public service employee'.[21] It argues that had Mr Setter or Ms Thomson substantiated the allegations raised by Mr Millward, the OPG would have considered strategies for resolving the grievance between Mr Millward and the subject officers in accordance with the Directive.[22]
  4. [26]
    The purpose of grievance resolution, it highlights, is to create a mechanism through which employees and employers can create a better workplace.[23] Consequently, it submits the Commission is no longer in a position to make substituted orders aimed at resolving the concerns raised by Mr Millward.[24] Nor would it be of any utility to return the matter to the decision-makers to reconsider, either with or without directions.[25]

Should The Commission Continue to Hear the Appeal?

  1. [27]
    As is clear from the above, there are three circumstances in which I may exercise my discretion not to hear this appeal. That is, where I consider:
  1. (a)
    the appeal is frivolous or vexatious;
  1. (b)
    the appeal is misconceived or lacks substance; or
  2. (c)
    there is another compelling reason not to hear the appeal.
  1. [28]
    Having had the benefit of reading the parties' primary submissions on the appeal, I am not satisfied that the proceedings could be classified as frivolous or vexatious, or otherwise so misconceived or lacking in substance that it would be appropriate not to hear the appeal on those bases. That is, I consider the grievances raised by Mr Millward constitute a genuine and real dispute between the parties.
  2. [29]
    I must therefore consider whether the appeal should not be heard for another compelling reason.

Another Compelling Reason

  1. [30]
    I consider there would be little practical utility in allowing the appeal. In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  2. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [31]
    Needless to say, Mr Millward does not seek that I confirm the decisions made in respect of his grievance. However, even if I were to do so, this would have no effect other than to maintain the present state of affairs.
  2. [32]
    Ignoring for a moment the issues raised at [37]–[38] below, it may reasonably be open to me to set aside the decisions of Ms Thomson and Mr Setter and substitute them with a decision that Mr Millward was in fact bullied, harassed and intimidated.
  3. [33]
    However, Mr Millward's complaints regarding the decisions reached largely relate to failures by the decision-makers to conduct themselves appropriately having regard to apprehended bias, procedural fairness and principles of natural justice. In those circumstances, if I ultimately determined the decisions were not fair and reasonable, it appears to me that it would be more appropriate to return the matter to the decision‑makers to determine fairly and reasonably, as opposed to substituting another decision.
  4. [34]
    Nevertheless, even this course would present difficulties given the fact there is no longer an extant employment relationship between Mr Millward and the OPG. That is so because I am limited in the directions I might consider appropriate should I return this matter to the decision‑makers for reconsideration. Relevantly, I do not consider it would be appropriate to make any direction in relation to Mr Millward's involvement now that he is no longer subject to the policies and procedures imposed on the OPG. Moreover, the commencement of any disciplinary action against the officers named in the appeal is also not a consideration for the Commission.
  5. [35]
    As recently observed by Merrell DP in Venables v State of Queensland (Queensland Health),[26] 'the Commission's time should only be spent hearing and determining public service appeals where there will be some practical effect upon the employee's continued employment'.[27] Mr Millward is no longer an employee of the OPG. Therefore, there cannot be any practical effect on his continued employment.
  6. [36]
    I have immense sympathy for Mr Millward and the circumstances in which he considered it necessary to bring his employment to an end. However, on balance, and having regard to the powers of this Commission, I consider it appropriate to decline to hear this appeal in circumstances where any decision I am empowered to make will have little practical utility on Mr Millward and his employment.

Other Matters

  1. [37]
    Even if I were inclined to continue to hear his appeal, I am not persuaded I have jurisdiction to do so in any event. This is so for two reasons:
  1. (a)
    the appeal as it pertains to Ms Thomson's decision was made out of time; and
  2. (b)
    the appeal as it pertains to Mr Setter's failure to make a decision has been superseded by the fact that Mr Setter ultimately made his decision and notified Mr Millward of that decision on 27 July 2021.
  1. [38]
    Although not necessary to determine those matters here, I consider that had I continued to hear his appeal, these would have been significant hurdles for Mr Millward to have overcome.

Conclusion

  1. [39]
    For the reasons given above, I consider there are reasonably compelling reasons to decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the IR Act.
  2. [40]
    I decline to hear the appeal and it follows that it must be dismissed.
  3. [41]
    I order accordingly.

Order

I decline to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld).

Footnotes

[1] Decision letter of Ms Victoria Thomson dated 16 June 2021 attached to the appeal notice filed 19 July 2021.

[2] OPG's submissions filed 3 September 2021, Attachment D.

[3] My emphasis.

[4] Mr Millward's submissions filed 25 February 2022, [3]-[4].

[5] Ibid [5]-[9].

[6] Ibid [12].

[7] Ibid [10], Mr Millward's reply submissions filed 10 March 2022, [3].

[8] Mr Millward's submissions filed 25 February 2022, [14].

[9] Ibid [11].

[10] Ibid [17].

[11] Mr Millward's reply submissions filed 10 March 2022, [1].

[12] Ibid.

[13] Mr Millward's reply submissions filed 10 March 2022, [1].

[14] Mr Millward's submissions filed 25 February 2022, [15].

[15] Ibid [17], [20].

[16] OPG's submissions filed 3 March 2022, [10].

[17] Ibid [10].

[18] OPG's submissions filed 3 March 2022, [12], citing Kiely v State of Queensland (Queensland Health) [2021] QIRC 252.

[19] OPG's submissions filed 3 March 2022, [11]-[12].

[20] Ibid [14].

[21] Ibid [15], citing Directive:11/20: Individual Employee Grievances cl 5.1.

[22] OPG's submissions filed 3 March 2022, [16].

[23] Ibid [15].

[24] Ibid, [17].

[25] Ibid.

[26] [2022] QIRC 137.

[27] Ibid [23].

Close

Editorial Notes

  • Published Case Name:

    Millward v Office of the Public Guardian

  • Shortened Case Name:

    Millward v Office of the Public Guardian

  • MNC:

    [2022] QIRC 468

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    01 Dec 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
Kiely v State of Queensland (Queensland Health) [2021] QIRC 252
2 citations
Jump To
Cite 1 - [2021] QIRC 252
Cite 2 - [2021] QIRC 252
Venables v State of Queensland (Queensland Health) [2022] QIRC 137
2 citations
Jump To
Cite 1 - [2022] QIRC 137
Cite 2 - [2022] QIRC 137

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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