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  4. Bond v State of Queensland (Department of Justice and Attorney-General) - [2023] QIRC 148

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Bond v State of Queensland (Department of Justice and Attorney-General)[2023] QIRC 148

Bond v State of Queensland (Department of Justice and Attorney-General)[2023] QIRC 148

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Bond v State of Queensland (Department of Justice and Attorney-General) & Ors [2023] QIRC 148

PARTIES: 

Bond, Robyn

(Complainant)

v

State of Queensland (Department of Justice and Attorney-General)

(First Respondent)

Thomas, Christine

(Second Respondent)

Harvey, Sean

(Third Respondent)

McDermott, Kerrith

(Fourth Respondent)

CASE NO:

AD/2019/27

PROCEEDING:

Referral of a complaint

DELIVERED ON:

26 May 2023

HEARING DATE

8 – 12, 15 – 18 June 2020

MEMBER

Dwyer IC

ORDERS:

  1. 1.
    The complaint is dismissed in its entirety.
  1. 2.
    Any application for costs should be made within 21 days of the date of this decision.

CATCHWORDS:

HUMAN RIGHTS – DISCRIMINATION LEGISLATION – GENERALLY – Complainant was employed by the First Respondent – Second Respondent was the immediate supervisor of the Complainant – Complainant made a complaint of discrimination against Second Respondent – Complainant alleges she had been subjected to discrimination  by the Second Respondent and the Fourth Respondent on the basis of her relationship status and impairment in contravention of the Anti-Discrimination Act 1991 – Complainant alleges she had been victimised by the Second Respondent and Fourth Respondent in contravention of the Anti-Discrimination Act 1991 – Complainant alleges that the First Respondent is vicariously liable for the actions of the Second Respondent and Fourth Respondent – whether Complainant was discriminated against on the basis of her relationship status – whether Complainant was discriminated against on the basis of her impairment – whether Complainant was victimised within the meaning of the Anti-Discrimination Act 1991 – whether First Respondent vicariously liable for the actions of the Second Respondent and Fourth Respondent – where Complainant fails to discharge the onus in respect of each complaint – where First Respondent not vicariously liable – complaint dismissed

LEGISLATION:

Anti-Discrimination Act 1991 (Qld) s 7, s 10, s 129, s 130, s 133, sch 1

Industrial Relations Act 2016 (Qld) s 531

Public Service Act 2008 (Qld) s 187, s 188

CASES:                                                

Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371

Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500

Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92-108

Commissioner for Corrective Services v Aldridge [2000] NSWADTAP 5

Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243

Curran v yourtown & Anor [2019] QIRC 059

Jones v Dunkel (1959) 101 CLR 298

Phillips v Baptist Union of Queensland [2019] QIRC 124

Sherman & Anor v Grady & Anor [2008] QADT 7

The Matter of an Agreement between Mount Isa Mines Ltd and Australian Manufacturing Workers' Union and Ors [1996] QADR 251

TT v Lutheran Church of Australia Queensland District [2013] QCAT 48

Wadsworth v Akers and Woolworths Ltd trading as Big W Discount Stores [2007] QADT 17

Waterhouse v Bell [1991] 25 NSWLR 99, NSWCA

APPEARANCES

Mr K Bond, Agent for the Complainant

Mr S. J. Hamlyn-Harris, Counsel instructed by Crown Law for the Respondents

Reasons for Decision

Background

          Summary of events giving rise to the claims

  1. [1]
    Mrs Robyn Bond was previously employed by the Department of Justice and Attorney-General ('the Department') as a Youth Justice Conferencing Convenor. She commenced employment in October 2006 and (initially) worked in the Department's offices located at Caboolture. At all material times, Mrs Bond's immediate supervisor was the second respondent, Ms Christine Thomas.
  1. [2]
    Mrs Bond makes multiple claims against multiple respondents, but all of the claims making up this complaint can be broadly categorised as either discrimination or victimisation within the meaning of those terms contained in the Anti-Discrimination Act 1991 (Qld) ('the AD Act'). 
  1. [3]
    During the course of her employment, Mrs Bond formed a relationship with her colleague, Mr Kirk Bond. Following the formation of this relationship and her subsequent marriage to Mr Bond, Mrs Bond describes a deterioration in her relationship with Ms Thomas.
  1. [4]
    After an initial issue in or about November 2011 (which Mrs Bond addressed through a detailed letter of compliant to Ms Thomas),[1] Mrs Bond contends that Ms Thomas continued to treat her less favourably over the course of the ensuing two years. Mrs Bond contends that the reasons for the less favourable treatment was her relationship with Mr Bond.
  1. [5]
    Approximately two and a half years later, in March 2014, Mrs Bond expressed interest in acting in Ms Thomas' role during an upcoming planned absence of approximately 11 days. Mrs Bond was ultimately advised in early April 2014 by Ms Melody Arnold Nagas that her expression of interest was unsuccessful. This event triggered a significant emotional and professional decline for Mrs Bond such that she shortly thereafter ceased work and never returned. 
  1. [6]
    Mrs Bond contends she began to become mentally unwell as consequence of Mrs Thomas' conduct during the years preceding 2014. After being advised she was unsuccessful at attaining the acting up position Mrs Bond ceased work on 14 April 2014. She subsequently made an (unsuccessful) application for workers' compensation.
  1. [7]
    Given that she featured prominently in Mrs Bond's claim for workers' compensation, Ms Thomas was subsequently required to provide a statement to WorkCover Queensland ('WorkCover'). Mrs Bond contends that in addition to the alleged acts of discrimination by Ms Thomas, she was also subject to victimisation within the meaning of the AD Act because, she alleges, Ms Thomas 'lied' in her statement to WorkCover. 
  1. [8]
    Following Mrs Bond's departure from work in April 2014 and a lengthy absence, there were attempts made to evaluate Mrs Bond's fitness to return to work. An Independent Medical Examination ('IME') was originally proposed in August 2015. Mr Sean Harvey was managing the IME process.
  1. [9]
    Due to Mrs Bond's persistent mental health issues, she argued she was incapable of complying with the August 2015 direction to attend an IME. The Department accommodated Mrs Bond's health issues and ultimately the IME proceeded in April 2016 when she was fit to attend.
  1. [10]
    Following the IME there ensued further disputation between Mrs Bond and the Department. The doctor who conducted the IME gave a somewhat qualified opinion and sought access to records of Mrs Bond's treating psychiatrist to ascertain a clearer clinical picture. Mrs Bond (initially) objected to allowing the IME doctor access to this information.[2]  
  1. [11]
    This dispute continued over the next few months with alternatives being proposed by the Department in order to alleviate Mrs Bond's concerns. Collateral to this dispute, but before the full consideration of the IME report was concluded, Mrs Bond unilaterally sought a return to work. When it was not granted by the Department, Mrs Bond filed unfair dismissal proceedings in the Commission in July 2016 alleging constructive dismissal.[3]
  1. [12]
    The Department eventually resolved the IME process by determining that Mrs Bond was fit to return to work but, it is said, was least at risk of further exacerbation of her mental illness if she worked under someone other than Ms Thomas. Consequently, it was determined to transfer Mrs Bond at level to another office of the Department. As Mrs Bond's team (including Ms Thomas) had moved to the Mooloolaba office, Mrs Bond was formally directed to attend work at the Caboolture office, to commence on 28 November 2016.
  1. [13]
    Following a formal direction to that effect, Mrs Bond's mental health deteriorated again, apparently on the very morning she was due to commence her return to work. Neither Mrs Bond nor her husband Mr Bond notified the office that Mrs Bond would not be attending. It was not until approximately midday on 29 November 2016 that Mr Bond advised inter alia that Mrs Bond was too unwell to attend work. A medical certificate was procured and produced some days later.
  1. [14]
    The failure by Mrs Bond to comply with the direction to attend work on 28 November 2016 triggered a show cause process in which Mrs Bond was formally invited to show cause why she ought to not be subject to a disciplinary sanction. As Mr Harvey had been responsible for managing the IME process it was considered by the Department that an independent manager ought to conduct the disciplinary process.
  1. [15]
    It was at this point that the fourth respondent, Mrs Kerrith McDermott, became involved. Ms McDermott was a senior officer with Queensland Corrective Services (a different Department) and was appointed to manage the show cause process.
  1. [16]
    In the true traditions of the public sector, the show cause process was an elaborate affair involving the exchange of multiple correspondence stepping through a multitude of stages, each apparently essential to afford procedural fairness. Mrs Bond 'appointed' Mr Bond to write the required responses on her behalf. As a consequence of what Ms McDermott considered was an unsatisfactory response, Mrs Bond's employment was terminated. 
  1. [17]
    Mrs Bond contends that the show cause process and her termination were an act of victimisation within the meaning of the AD Act. The basis of the alleged victimisation is said to be because of the complaints raised by Mr Bond in the show cause response letters that he authored. Mrs Bond also contends that the termination of her employment was an act of discrimination on the basis of her mental health and her relationship status.

          Summary of claims made

  1. [18]
    The case initially pleaded by Mrs Bond was somewhat more extensive than what was finally pressed in her closing submissions. At the close of the hearing, Mrs Bond discontinued her claim against the third respondent, Mr Harvey.[4] In her written closing submissions filed on 3 February 2021 Mrs Bond discontinued all of her claims regarding alleged reprisals in respect of certain Public Interest Disclosures. [5]
  1. [19]
    Claims of vicarious liability against the State of Queensland flow from the claims against the individual respondents. Further, there are four 'stand-alone' claims of vicarious liability against the State of Queensland arising out of the alleged contravening conduct of its officers.
  1. [20]
    Despite the contraction to Mrs Bond's case it remains elaborate. It must be observed that the exercise of fully identifying and understanding each and every complaint made by Mrs Bond was no simple task. Mrs Bond's Amended Statement of Facts and Contentions ('SOFC') and her written closing submissions were something of a convoluted labyrinth. Identifying precisely where Mrs Bond's complaints began and ended was challenging. This is entirely a feature of the style of writing found in Mrs Bond's written material rather than the matters actually being complex. Indeed, once proper understanding is acquired, the claims that emerge were quite simple.
  1. [21]
    Ultimately, regard was had most closely to Mrs Bond's closing submissions filed on 3 February 2021 as they contain the most refined version of her complaints. Notwithstanding that those submission extend over 144 pages, a thorough examination of the closing submissions reveals that the claims can be reduced to a collection of short and simple propositions. 
  1. [22]
    Similarly, while there are 151 exhibits in evidence in this matter, on proper consideration it becomes apparent that only a small number of the documents tendered are of any real assistance.  
  1. [23]
    In summary, Mrs Bond's closing submissions contain the following complaints under the AD Act:

Christine Thomas

  1. direct discrimination on the basis of relationship status; and
  1. victimisation as a consequence of  discrimination complaints.

Kerrith McDermott

  1. victimisation because of complaints made by Mr Bond in the show cause response;
  1. direct discrimination on the basis of impairment; and/or
  1. direct discrimination on the basis of relationship status.

The Department

  1. four separate claims of victimisation and one of discrimination alleged to give rise to vicarious liability of the Department as a consequence of contraventions by its employees.
  1. [24]
    As noted above, there are two broad categories of claims made by Mrs Bond. Firstly, there are the claims of direct discrimination on the basis of relationship status (made against multiple parties). There is also a claim of discrimination on the basis of impairment (made against Ms McDermott and the Department). 
  1. [25]
    Secondly, Mrs Bond asserts various incidents of victimisation within the meaning of the AD Act (also against multiple parties in respect of different events). 
  1. [26]
    Each claim against each respondent is one of (or a combination of) these claims.
  1. [27]
    Before proceeding to consider each of these claims, the legislative framework in which they arise and the law pertaining to it requires some examination.

Relevant legislation and legal principles

Discrimination – relationship status

  1. [28]
    Chapter 2 of the AD Act relevantly provides:

7  Discrimination on the basis of certain attributes prohibited

The Act prohibits discrimination on the basis of the following attributes—

…

  1. (b)
    relationship status;

…

  1. (p)
    association with, or relation to, a person identified on the basis of any of the above attributes.

and

10  Meaning of direct discrimination

  1. (1)
    Direct discrimination on the basis of an attribute happens if a person treats, or proposes to treat, a person with an attribute less favourably than another person without the attribute is or would be treated in circumstances that are the same or not materially different.

…

  1. (2)
    It is not necessary that the person who discriminates considers the treatment is less favourable.
  1. (3)
    The person's motive for discriminating is irrelevant.

…

  1. (4)
    If there are 2 or more reasons why a person treats, or proposes to treat, another person with an attribute less favourably, the person treats the other person less favourably on the basis of the attribute if the attribute is a substantial reason for the treatment.
  1. (5)
    In determining whether a person treats, or proposes to treat a person with an impairment less favourably than another person is or would be treated in circumstances that are the same or not materially different, the fact that the person with the impairment may require special services or facilities is irrelevant.
  1. [29]
    Schedule 1 of the AD Act provides:

…

relationship status means whether a person is—

  1. a.
    single; or
  1. b.
    married; or
  1. c.
    married to another person, but living separately and apart from the other person; or
  1. d.
    divorced; or
  1. e.
    widowed; or
  1. f.
    a de facto partner; or
  1. g.
    a civil partner.
  1. [30]
    Mrs Bond makes claims in respect of discrimination, namely on the basis of relationship status, and on the basis of impairment. All of the claims of discrimination allege direct discrimination.
  1. [31]
    It has been plain throughout the proceedings that Mrs Bond contends that the discrimination on the basis of her relationship status is, more particularly, discrimination on the basis of her relationship and marriage with Mr Bond. This aspect of Mrs Bond's complaint gives rise to some difficulties.
  1. [32]
    There are a number of compelling authorities that conclude that the language of s 7(b) and Schedule 1 of the AD Act ought to be applied narrowly. Further, while there are conflicting authorities in other jurisdictions,[6] the line of authorities on this issue in Queensland have been consistent.  
  1. [33]
    In The Matter of an Agreement between Mount Isa Mines Ltd and Australian Manufacturing Workers' Union and Ors [7] Shepherdson J held:

In the present case the definition of 'marital status' in the Act focuses on the fact that a particular employee is married or is a de facto spouse. The definition does not extend beyond the limit of a person being married or a person being a de facto spouse. The definition does not permit consideration of whether the person to whom that employee is married…is a person employed by ISA.

…

The fact that a particular employee of the appellant happens to be married to or to be the de facto spouse of another employee of the appellant is an incident of each employee's marital status and has no bearing on the attribute of "marital status" as defined in the Act. 

(Emphasis added)

  1. [34]
    While Shepherdson J was considering the term 'marital status' the reasoning is apposite for application to the term 'relationship status' that is now contained in the AD Act. The reasoning of Shepherdson J was followed by Member Forrest (as he then was) in Sherman & Anor v Grady & Anor,[8]  where he concluded:

The first part of Mrs Sherman's complaint is that she was discriminated against by the Respondents because of her "relationship status". That is one of the attributes listed in section 7 of the Act. It is defined in the Dictionary Schedule to the Act to mean, relevantly, "whether a person is…married."

Again, for Mrs Sherman to succeed on this point, pursuant to section 10 of the Act, I must be satisfied that she was treated, or it was proposed to treat her, less favourably than another person who was not married would be treated in circumstances that were the same or not materially different. It is not sufficient for me to be satisfied that Mrs Sherman was treated in the way she complains of because she was particularly married to Mr Sherman. The less favourable treatment she received, or it was proposed she receive, must be because of her married state and not her choice of marital partner.  

(Emphasis added)

  1. [35]
    While it must be acknowledged that a different approach to this language has been taken in decisions in other jurisdictions (including decisions cited by Mrs Bond from the Supreme Court of Montana), I consider the reasoning of Shepherdson J and Member Forrest to be more persuasive.
  1. [36]
    Even in the absence of those Queensland authorities, a consideration of the plain, self-limiting language of the AD Act reveals (with one exception) that the scope of the 'relationship status' attribute starts and ends with a single descriptor i.e. single, married, divorced, de facto or civil partner.[9] None of these terms implies or requires any further depth or texture to be understood and applied. To artificially expand these statutory terms beyond the plain and narrow language of the AD Act would risk misapplication of the provision beyond its clearly limited purpose i.e. to protect persons from discrimination on the basis of their personal relationship choices or circumstances.
  1. [37]
    The only exception to the singular terms used in Schedule 1 of the AD Act in the definition of 'relationship status' is item (c) which reads:

Married to another person, but living separately and apart from the other person.

  1. [38]
    While it is understandable that the legislature provided a more expansive descriptor to describe this particular status, it might just as easily have read 'separated'. That term is universally understood, albeit it can apply in a wider range of scenarios beyond just a person living apart from a person to whom they are married. In any event, the language used equally does not invite or imply a wider reading than what is provided.
  1. [39]
    Both Shepherdson J and Member Forrest (as he then was) applied the terminology narrowly and consistent with the plain language of the AD Act. Having regard to the definition in the AD Act, I am overwhelmingly persuaded to agree with that approach.
  1. [40]
    The fact that Mrs Bond happens to be married to Mr Bond is an incident of her status, not a part of it. It cannot form the basis of discrimination prescribed by s 7 of the AD Act.  It follows that it can already be determined that because her complaints rely on the non-prescribed, non-protected attribute of 'being in a relationship with Mr Bond' Mrs Bond's complaints of discrimination on the basis of her relationship status must fail.
  1. [41]
    This conclusion and alternatives will be dealt with more completely in the consideration below.

Discrimination - impairment

  1. [42]
    The legal principles in this regard are less controversial. The case advanced by Mrs Bond in this instance is articulated as follows:[10]

…in refusing to accept Mrs Bond's mental illness as a "reasonable excuse" for failing to comply with Sean Harvey's direction for her to attend work on the morning of 28 November 2016 and instead, terminating her employment because she was too sick to attend work, Kerrith McDermott and the State unlawfully discriminated against her on the basis of an attribute of the Complainant, namely an impairment, mental illness, in violation of section 7(h) of the Act.

  1. [43]
    The presence of Mrs Bond's mental illness and its characterisation as an impairment within the meaning of the AD Act are not in contest.  While it is not pleaded as such, it would appear that the complaint of discrimination on the basis of impairment is also a complaint of direct discrimination.
  1. [44]
    In those circumstances, it follows that Mrs Bond has the onus to demonstrate that, on the basis of her impairment, she was treated less favourably than another person without that attribute would have been treated in the same or materially the same circumstances.[11]
  1. [45]
    Ordinarily, Mrs Bond's task in this regard would be assisted by consideration of an appropriate comparator e.g. an employee without a mental illness directed to attend work at a certain location, who failed to comply with the direction and failed to advise of their non-attendance on or before they failed to attend. 
  1. [46]
    However, there is a difficulty with the case as pleaded by Mrs Bond. In essence, the first part of the sentence that serves as the pleading purports to complain about the refusal to accept the stated reason of mental illness as an excuse for non-compliance by Mrs Bond.  This complaint is arguably inconsistent with a complaint that she was treated less favourably on the basis of her attribute of impairment in that it appears to argue that was unfairly or unreasonably not taken into account as an excuse for her absence.
  1. [47]
    But the second part of the sentence that serves as the pleading pivots to a complaint of 'terminating her employment because she was too sick to attend work' which, in simple words, ultimately pleads a cause of action consistent with direct discrimination in accordance with the terms of the AD Act.
  1. [48]
    Putting this pleading plainly it would seem that Mrs Bond complains she was dismissed on the basis of her impairment. So much becomes clear when regard is had to the closing submissions (at page 46) made by Mrs Bond. The onus is on Mrs Bond to prove this assertion to the requisite standard.

Victimisation  

  1. [49]
    Mrs Bond makes numerous separate complaints of victimisation within the meaning of the AD Act in respect of certain conduct of each of the respondents. Each of the complaints rely on alleged contraventions of s 129 of the AD Act.
  1. [50]
    In respect of victimisation, the AD Act relevantly provides:

129  Victimisation

A person must not victimise another person.

and

130  Meaning of victimisation

  1. (1)
    Victimisation happens if a person (the respondent) does an act, or threatens to do an act, to the detriment of another person (the complainant) —
  1. (a)
    because the complainant, or a person associated with, or related to, the complainant—
  1. (i)
    refused to do an act that would amount to a contravention of the Act; or
  1. (ii)
    in good faith, alleged, or intends to allege that a person committed an act that would amount to a contravention of the Act; or
  1. (iii)
    is, has been, or intends to be, involved in a proceeding under the Act against any person; or
  1. (b)
    because the respondent believes that the complainant, or a person associated with, or related to, the complainant is doing, has done, or intends to do one of the things mentioned in paragraph (a) (i), (ii) or (iii).
  1. (2)
    In this section, a reference to involvement in a proceeding under the Act includes—
  1. (a)
    making a complaint under the Act and continuing with the complaint, whether by investigation, conciliation, hearing or otherwise; and
  1. (b)
    involvement in a prosecution for an offence against the Act; and
  1. (c)
    supplying information and producing documents to a person who is performing a function under the Act; and
  1. (d)
    appearing as a witness in a proceeding under the Act.
  1. [51]
    Mrs Bond bears the onus of proving each of her victimisation claims. The three elements of victimisation within the meaning of s 130(1) of the AD Act are that a person (i.e. a respondent):
  1. (i)
    "does an act, or threatens to do an act";
  1. (ii)
    "to the detriment of another person" (i.e. the complainant);
  1. (iii)
    "because the complainant, or a person associated with, or related to, the complainant" inter alia alleges "that a person committed an act that would amount to a contravention of the Act".
  1. [52]
    Mrs Bond has the onus to establish all three elements of victimisation in each of her complaints. The real contest in all of Mrs Bond's victimisation claims is establishing that the complained of conduct of the relevant respondents was because of a reason prescribed by s 130(1) of the AD Act.
  2. [53]
    The use of the term 'because' in s 130 of the AD Act compels a complainant to establish to the requisite standard that there is a causal link between the detrimental action taken or threatened and e.g. the making of complaints under the AD Act.  Language of this nature has been the subject of extensive judicial consideration.
  1. [54]
    In Wadsworth v Akers and Woolworths Ltd trading as Big W Discount Stores,[12] Member Wilson (as Her Honour then was) examined the extent to which a complainant was required to establish the causal link. Following her extensive consideration of comparative authorities of other jurisdictions, it was concluded that:[13]

The complainant's making of allegations against the first respondent must be the substantial and operative factor behind the allegedly victimising conduct.

  1. [55]
    This approach to s 130 of the AD Act has been adopted in numerous subsequent authorities.[14] The reasoning is also consistent with the consideration of the term 'because' with respect to causation in general protections matters.[15] I wholly accept that is the proper approach.
  1. [56]
    For completeness I note the somewhat confused submission on law set out in Mrs Bond's submissions.[16]The submission purports to set out the test for direct discrimination but does so under a heading of causation and victimisation. Further, the submission overstates the extent to which O'Connor, VP  in Curran v yourtown & Anor[17]referred to the conclusions in Commissioner of Corrective Services v Aldridge[18] in that the submissions of Mrs Bond go beyond what is extracted in the Vice President's decision. While certain parts of the submission are uncontroversial, overall it is an incorrect amalgamation of principles and concepts. 
  1. [57]
    In the circumstances, in respect of her claims of victimisation, it is for Mrs Bond to prove on the balance of probabilities that the conduct of the respondents that she alleges to be victimisation was substantially and operatively precipitated by e.g. complaints of contraventions of the AD Act made inter alia by Mr Bond. 
  1. [58]
    I hasten to add that a mere assertion as to the motives for proscribed conduct, no matter how forceful or elaborate, will never be sufficient to prove the third element of a victimisation complaint. In the absence of uncontradicted documentary or witness evidence that removes doubt about the proscribed motives, a proper inquiry into the substantive and operative reasons for alleged victimising conduct will necessarily require the Commission to hear evidence from (at the very least) the person who took or threatened the action or authorised it.[19]
  1. [59]
    Mrs Bond must therefore discharge this very significant onus and prove the causal link in all of her complaints of victimisation.

Evidence and submissions

  1. [60]
    The hearing of Mrs Bond's complaints took place over a period of 10 days. The only evidence lead by Mrs Bond was her own. Mrs Bond's evidence extended over a period of approximately 5 days.
  1. [61]
    Mr Bond appeared as Mrs Bond's representative in the proceedings. Having regard to the allegations, especially those involving Ms Thomas, Mr Bond was ideally placed to corroborate the testimony of Mrs Bond on many matters. Notwithstanding that he was well aware of the option to give evidence in the proceedings, Mr Bond did not give evidence.[20]
  1. [62]
    To whatever extent Mr Bond may have mistakenly conflated the notion of arguments from the bar table with evidence in the proceedings, it remains the case that nothing he said during the proceedings will carry any of the weight that actual evidence might have. The effect and consequences of the decision to not call evidence from Mr Bond will be dealt with later in these reasons.
  1. [63]
    Further, Mrs Bond's complaints regarding Ms Thomas are within the context of alleged less favourable treatment in the office where Mrs Bond, Mr Bond and Ms Thomas worked. Many of the allegations assert that Mr and Mrs Bond were singled out for admonishment for e.g. talking to each other. A number of the allegations are said to arise in circumstances where other members of staff were presumably in a position to comment or corroborate allegations or may have been able to comment generally about Ms Thomas' demeanour towards Mr and Mrs Bond.[21]
  1. [64]
    While there was no evidence about what informal attempts were made to obtain the attendance of witnesses, it would appear that no attempt was made by Mrs Bond to formally secure the attendance of any such witnesses by way of attendance notice. The effect and consequences of this will also be dealt with later in these reasons.
  1. [65]
    In the circumstances, Mrs Bond proceeded (over 10 days) to press a multitude of complaints against multiple respondents, each of which required her to discharge a significant burden of proof. Mrs Bond undertook this task without a single witness to support her assertions.
  1. [66]
    The Crown called evidence on behalf of the respondents from:
  • Ms Christine Thomas;
  • Ms Melody Arnold-Nagus;
  • Mr Richard Hood;
  • Mr Neil Lawson;
  • Ms Natalie Homen;
  • Ms Kerrith McDermott; and
  • Mr Sean Harvey.
  1. [67]
    The evidence of Mr Lawson and Ms Homen almost exclusively dealt with the now discontinued reprisal claims and is now largely irrelevant given the abandonment of those claims.
  1. [68]
    I do not intend to extensively summarise the evidence given by the respondents' remaining witnesses. Suffice to say the salient portions of their evidence will be referenced in my consideration that follows. 
  1. [69]
    In addition to the witness testimony there were a multitude of documents tendered throughout the hearing.[22] Again, while many of the documents tendered ultimately proved to be of little relevance, the key documents relevant to the remaining claims of Mrs Bond are identified and considered later in these reasons.

Consideration

  1. [70]
    Following the discontinuance of proceedings against Mr Harvey and all of the reprisal claims, the remaining claims made by Mrs Bond could broadly be placed into three categories:
  1. Claims against Christine Thomas;
  1. Claims against Kerrith McDermott; and
  1. Claims against the State of Queensland (which include claims of vicarious liability in respect of (i) and (ii) above, and also, in respect of conduct of other public service officers).[23]

         Claims against Christine Thomas

Direct discrimination – relationship status

  1. [71]
    In broad terms, Mrs Bond has alleged that Ms Thomas treated her less favourably on the basis of her relationship with Mr Bond.[24]
  1. [72]
    Mrs Bond pleads her claims with respect to the discrimination on the basis of relationship status in the following way:

On the basis of an attribute of the Complainant, namely her relationship status and her association with or relation to her husband, Kirk Bond…

  1. [73]
    The pleading problematically conflates two propositions: Mrs Bond's relationship status and her association with Mr Bond.
  1. [74]
    The pleading insofar as it complains of direct discrimination on the basis of the attribute of relationship status is capable of being understood. It is the inclusion of the second portion that makes the pleading problematic.
  1. [75]
    The language 'association with or relation to' is taken from the list of attributes prescribed by s 7 of the AD Act as being protected from discrimination. Section 7(p) of the AD Act adds 'association with a person identified on the basis of any of the above attributes' to the list of protected attributes. '
  1. [76]
    The clear and limited application of s 7(p) of the AD Act is to protect against discrimination of an individual who may not possess any of the prescribed attributes set out in s 7 of the AD Act, but who e.g., is associated with or related to an individual who does.
  1. [77]
    Having regard to the SOFC and closing submissions filed by Mrs Bond, it is clear that her pleading was not intended to allege discrimination on the basis of an attribute possessed by Mr Bond. It is plain that the reference 'association with or relation to' is in fact more in the nature of a particular of the allegation of discrimination on the basis of relationship status.
  1. [78]
    As concluded above, any claim of relationship status discrimination in these terms must fail. Discrimination on the basis of this attribute is limited to the status, not the incidental fact of who a complainant is married to. It follows that the claim of direct discrimination on the basis of relationship status made against Ms Thomas must be dismissed.
  1. [79]
    However, for completeness, prudence dictates that the particulars of this complaint and the evidence purportedly supporting Mrs Bond's assertions of less favourable treatment ought to be considered. For the reasons that follow, even if the wider reading of 'relationship status' contended for by Mrs Bond were correct, her claim in this regard would still fail on the evidence.
  1. [80]
    Mrs Bond contends that there was a deterioration of her previously good relationship with Ms Thomas almost immediately from the time that Ms Thomas became aware that Mrs Bond was in a relationship with Mr Bond. Mrs Bond broadly contends that she (and Mr Bond) was routinely subject to unfair or unnecessary admonishments to which other employees were not subjected [25].
  1. [81]
    Mrs Bond contends that this continued for a period commencing in November 2011 and culminating in April 2014 i.e. a period of over two years. Mrs Bond sets out the particulars of the conduct of Ms Thomas that she says are evidence of less favourable treatment on the basis of the proscribed reason in her SOFC.[26]  
  1. [82]
    Before turning to consider those incidents, the question of witness credit ought to be addressed. The only evidence given that was directly relevant to the allegations of less favourable treatment was by Mrs Bond and Ms Thomas. It is said by Mrs Bond that Ms Thomas was a witness of poor credit and her account of events ought to be regarded as unreliable or untrue.
  1. [83]
    As already noted, Mrs Bond called no witness to corroborate her accounts of Ms Thomas' conduct. This is notwithstanding that certain witnesses are identified in the SOFC in respect of some incidents, including Mr Bond.[27]
  1. [84]
    Throughout the proceedings I had the opportunity to closely observe the demeanour of both Mrs Bond and Ms Thomas as they gave their evidence. In doing so I formed an overwhelmingly clear impression that Ms Thomas was an entirely reliable witness on matters of fact. Ms Thomas displayed great patience and fairness when cross examined. Moreover, she was frank about her lack of recall at times where a less genuine witness might have embellished.
  1. [85]
    To the extent that Ms Thomas could not recall certain events or where there were inconsistencies between her memory and the established facts, I do not consider these things undermine her reliability. On the contrary, they appear to be a natural feature of testimony given by an honest witness doing their best to recall matters that had occurred many years ago. Further, while some of those matters (such as informal admonishments in the office) might have taken on greater significance over time because of their subsequent inclusion in these proceedings, they would likely have been quite trivial to Ms Thomas at the time and thus unlikely to have been the subject of clear recall by her.
  1. [86]
    Overall, I consider Ms Thomas was consistently credible and reliable in her evidence. The same cannot be said for Mrs Bond.
  1. [87]
    My overall impression of Mrs Bond's evidence was that it was quite often affected by her emotions arising from her subjective perceptions of the conduct of Ms Thomas and others. There was a tendency to overstate and embellish at times, and at times there were stark contradictions.[28]  
  1. [88]
    Further, Mrs Bond's failure to call Mr Bond to give evidence corroborating her allegations about conduct to which they were both allegedly exposed raises significant concerns about reliability. Mr Bond was well aware of the option for him to give evidence. One would think it was obvious in a proceeding where both he and Mrs Bond have alleged discriminatory conduct directed at them (at times simultaneously) that Mr Bond would have given evidence, especially where no other witnesses were being called to corroborate the alleged conduct of Ms Thomas.
  1. [89]
    As her husband, representative and overt champion of Mrs Bond's cause, the absence of Mr Bond as a witness should not immediately give rise to an adverse inference of the type contemplated in Jones v Dunkel.[29] It could instead be safely assumed that Mr Bond might have given evidence broadly supportive of Mrs Bond.  But Mr Bond's failure to testify has nevertheless denied the Commission of a vital opportunity to evaluate Mrs Bond's reliability and credit because e.g. the consistency (or lack thereof) of her accounts of conduct or events by comparison with Mr Bond's account of the same conduct or events could not be observed by the Commission.  
  1. [90]
    Further, Mrs Bond's failure to secure the attendance of witnesses she names in her SOFC is more than perplexing.[30] Given the setting of these events in the workplace and the time period over which they are alleged to have occurred one would expect that there were witnesses. More broadly, Mrs Bond has apparently made no effort to compel any person to attend to verify what she alleges. In those circumstances the absence legitimately gives rise to an adverse inference that they would not have assisted Mrs Bond's claims or given corroborative testimony.
  1. [91]
    For all of the above reasons, where their accounts of events differ, I prefer the evidence of Ms Thomas to Mrs Bond. 
  1. [92]
    The first incident where Mrs Bond alleges she was the subject of relationship status discrimination occurred on or about 21 November 2011. It involved inter alia Ms Thomas allegedly admonishing Mrs Bond for applying a cream to Mr Bond's sunburn whilst in the office.
  1. [93]
    It is not controversial that Mr and Mrs Bond were in a 'pod' within the workplace and that Mr Bond completely or mostly removed his shirt so that Mrs Bond could apply cream to some area of his torso.  There is some dispute as to the language used by Ms Thomas and whether there were other employees present. But it is not disputed that Ms Thomas gave some direction to Mr and Mrs Bond to the effect that they should not be engaging in such conduct in that part of the workplace.
  1. [94]
    This incident so upset Mrs Bond that, within days, she prepared and delivered a lengthy letter of complaint to Ms Thomas.[31] The letter serves as an excellent contemporaneous record of the particulars of the complaint Mrs Bond had at the time. It makes no mention of the term 'ridiculous' being used.  It is noted that those particulars have altered over time and the term 'ridiculous' first appears in the allegation made by Mr Bond in his workers' compensation claim in 2014.[32] I reject that assertion that Ms Thomas used the term 'ridiculous'. It did not form part of the contemporaneous complaint by Mrs Bond and was denied by Ms Thomas.[33]
  1. [95]
    The delivery of the letter to Ms Thomas prompted a meeting on 28 November 2011. Notes of that meeting were taken and also serve as a contemporaneous record of the grievance.[34] (It is noted as an aside that Mrs Bond contends this meeting did not occur and that the notes are a fabrication. For the reasons set out above and below I prefer Ms Thomas' evidence on this). 
  1. [96]
    Having regard to Exhibit 1 and Exhibit 98 and the evidence of Ms Thomas about these events (given some eight and a half years after they occurred) it would appear quite clear that Ms Thomas exercised an appropriate degree of management authority to direct Mrs and Mr Bond as to how, when and where it was appropriate for them to engage in such conduct. Far from admonishing them, Ms Thomas merely directed them to do it in a more private location and not during working hours.
  1. [97]
    There is nothing about the conduct of Ms Thomas in respect of this issue that objectively reveals any bias or discrimination on the basis of relationship status, or at all.
  1. [98]
    The recently developed relationship between Mr and Mrs Bond did feature in discussions in the meeting on 28 November 2011. The notes taken by Ms Thomas reveal that among the long list of matters discussed, there was a discussion about their relationship in the context of the work environment. The meeting notes record that Ms Thomas (quite appropriately) asked Mrs Bond to 'keep it professional' in the office and cited an incident of another recent display of physical affection during a meeting.
  1. [99]
    Again, there is nothing about the conduct of Ms Thomas in raising this that objectively reveals any bias or discrimination on the basis of relationship status or at all. It was an entirely appropriate comment for a manager to make in circumstances where two subordinate employees had (twice) been reported or observed to have engaged in physical intimacy in an inappropriate setting.
  1. [100]
    Also in this meeting, Ms Thomas raised, purely for the purposes of awareness, the 'Conflict of Interest Policy'. One can readily understand why this policy was on Ms Thomas' mind. The public sector is steeped in policies and procedures to safeguard against inequity arising from deliberate or inadvertent conflicts of interest. Having only recently become aware of their personal relationship, it was an appropriate juncture for Ms Thomas to raise awareness of this policy in my view.
  1. [101]
    While it is noted that Ms Thomas' concerns eventually resulted in the Department obtaining advice from Crown Law about the appropriateness of Mr and Mrs Bond co-convening, I consider that her motives were entirely sincere. Regardless of whether she was contradicted by advice of Crown Law, Ms Thomas' instincts that caused her concern impressed me as entirely plausible and genuine.
  1. [102]
    Yet again there is nothing about the conduct of Ms Thomas in pursuing this issue that objectively reveals any bias or discrimination on the basis of relationship status or at all. I consider that Ms Thomas was merely attempting to safeguard against adverse consequences not only for her if she breached the policy, but also for Mr and Mrs Bond.  
  1. [103]
    Following the raising of her grievance it would seem that Mrs Bond continued (for the next two years) to perceive certain actions of Ms Thomas to be motivated by discrimination on the basis of the relationship between Mr and Mrs Bond.
  1. [104]
    Mrs Bond has cited multiple examples of conduct by Ms Thomas that she says are evidence of Ms Thomas acting in a proscribed manner.[35] Yet, in the more than two years between November 2011 and April 2014, Mrs Bond did not once raise any similar grievance with Ms Thomas. This is so notwithstanding that Mrs Bond had previously demonstrated in November 2011 that she was more than capable of doing so.
  1. [105]
    Further, during this intervening period, Ms Thomas was left oblivious to the alleged growing discontent of Mrs Bond and indeed continued to share friendly communications with her. Ms Thomas contends that she had no indication of any dissatisfaction of Mrs Bond and felt that their relationship was good.[36]
  1. [106]
    A bundle of emails between Mrs Bond and Ms Thomas was tendered in the proceedings.[37] The emails extend from December 2011 through to March 2014 and candidly reveal the nature of the working relationship between Mrs Bond and Ms Thomas during that period. While these emails are only a snapshot of conversations between them during the relevant period, they reveal a consistent pattern of friendly, familiar, and supportive conduct over the entire period. They are wholly inconsistent with how Mrs Bond now seeks to describe their relationship during that period.
  1. [107]
    While it can be accepted that over the years Ms Thomas may have had cause to give direction to Mrs Bond and even to admonish her about minor issues during the intervening period, there is no evidence to suggest that each or any of these incidents were anything but legitimate, stand-alone incidents of a manager simply managing matters as she considered necessary. The subjective assertions of Mrs Bond are not proof of the discrimination she now complains of.
  1. [108]
    If Mrs Bond wanted to prove that there was excess or imbalance in the way she was treated by Ms Thomas (by comparison to other employees without the attribute in question) it was for her to call evidence to prove that. The fact that not a single witness was called or able to be called to support even some of Mrs Bond's assertions speaks volumes as to the veracity of her allegations in my view.
  1. [109]
    For completeness I would add that the evidence of Mr Hood was the only evidence of any person employed in the office at the relevant time other than Mrs Bond or Ms Thomas. Mr Hood observed no unfair treatment of Mr and Mrs Bond.[38] Mr Hood was called by the respondents and gave evidence as to the tolerance of Ms Thomas for his natural medicine practices in the office. Having regard to the evidence of Mr Hood it is clear that he conducted some natural medicine therapies on a handful of occasions though it is not clear that Ms Thomas knew or openly allowed them.[39]
  1. [110]
    In any event, far from what was put to him in cross examination by Mr Bond, these practices involved minimal direct physical contact.[40] They certainly did not involve anyone disrobing in an open access work area in the manner that Mr Bond did and are not an accurate comparison.[41]
  1. [111]
    The contemporaneous notes of Ms Thomas from the 28 November 2011 meeting (which I accept as accurate) confirm that Mrs Bond was not prohibited from applying cream to a shirtless (or semi-shirtless) Mr Bond but rather, she was asked to do so in a private area of the office outside of work hours. There is nothing about the evidence of Mr Hood that would suggest the treatment of Mrs Bond was less favourable.
  1. [112]
    Further, while Mrs Bond now contends she was becoming increasingly aggrieved by the conduct of Ms Thomas during the period between 2011 and 2014, I find that proposition impossible to accept. The bundle of emails[42]contradict Mrs Bond's account of this period. They are a compelling contemporaneous record of a professional relationship that reveals no hint of any grievance. 
  1. [113]
    For this reason, I consider it is unnecessary to descend into the minutia of numerous allegations made about Ms Thomas' conduct between 2011 and 2014.[43]  Mrs Bond seeks to place this conduct of Ms Thomas inside a narrative which has all the hallmarks of a Shakesperean romantic tragedy in which Mrs Bond is persecuted by Ms Thomas simply for forming a relationship with Mr Bond. But beyond her subjective and impassioned (but uncorroborated) assertions about what ought to be read into Ms Thomas' conduct, she has produced no evidence to prove her claim.
  1. [114]
    To the extent that it is necessary to deal with each of the particularised incidents I would adopt and accept entirely the submissions of the respondents in relation to those matters.[44]
  1. [115]
    I have already concluded that a claim that Ms Thomas discriminated against Mrs Bond because she was in a relationship with Mr Bond is inconsistent with the attribute of relationship status protected by s 7 of the AD Act. Even if my conclusion in this regard is incorrect, I further consider that there is no evidence before me that would cause me to conclude that the actions of Ms Thomas complained of by Mrs Bond were actions taken on the basis of Mrs Bond's relationship with Mr Bond.
  1. [116]
    I consider that the conduct particularised by Mrs Bond (to the extent it was admitted) was adequately explained by Ms Thomas as rather pedestrian incidents of management action in the ordinary course of day-to-day life in an office. Mrs Bond's subjective perceptions of this conduct, however firmly she believes them, are not proof of contravention.
  1. [117]
    In all of these circumstances, Mrs Bond has failed to prove her claim of discrimination on the basis of relationship status against Ms Thomas.

Victimisation

  1. [118]
    As a consequence of the decision to offer an acting role in Ms Thomas' position to someone else, Mrs Bond became distressed and ceased work on or about 14 April 2014. She subsequently made an application for workers' compensation. The claim included a complaint about the way in which Ms Thomas had spoken to Mrs Bond during the incident with the sunburn cream and complaints of discrimination.
  1. [119]
    In the ordinary course of such claims, WorkCover Queensland seeks statements from the relevant managers and witnesses. Ms Thomas provided a statement to Crown Law that was subsequently provided to WorkCover Queensland in or about May 2014.[45] Her statement included a response to the allegations that she had e.g. shouted at Mrs Bond. [46]
  1. [120]
    Subsequent to the filing of her workers' compensation claim, proceedings were commenced by Mr and Mrs Bond in the Supreme Court of Queensland seeking Judicial Review. As a consequence of that proceeding being filed, the media apparently had access to the documents related to the workers' compensation claim including the statement of Ms Thomas. Following this, media reports focusing on the salacious details of Mrs Bond's claim began to circulate.  In particular, the media took a special interest in the fact that Mr and Mrs Bond were engaged in the act of applying sunburn cream in the office. The media articles gained national and international coverage.
  1. [121]
    Mrs Bond contends she found the media coverage upsetting. Mrs Bond contends that Ms Thomas lied in her statement to Crown Law and that she did so deliberately as an act of victimisation in response to Mrs Bond's assertions of discrimination on the basis of relationship status.[47]
  1. [122]
    The claim of victimisation is premised on an allegation that Ms Thomas lied.[48] It is particularised relevantly as follows:[49]

Ms Thomas victimised Robyn by lying to Crown Law lawyers about the sunburn cream incident and permitting them to submit her false version of what occurred to WorkCover…

  1. [123]
    This alleged conduct then becomes the first element i.e. an 'act' done by Ms Thomas. If this can be proven, Mrs Bond then needs to prove the determinant, and then the causal connection between the two. But importantly, in order for Mrs Bond to succeed on this claim, she needs to first prove that Ms Thomas lied. The precise 'lie' that Ms Thomas is said to have told is not entirely clear, though it seems from the questioning during cross examination, it was somewhere within Ms Thomas' account about the incident involving Mrs Bond applying the sunburn cream.
  1. [124]
    Ms Thomas has consistently described Mr Bond's shirt as 'completely off'[50], or 'shirt off'.[51] Whether it was off or pulled up is largely irrelevant. It became apparent throughout cross examination that, in order to reveal the alleged 'lie' Mr Bond was putting versions of this event to Ms Thomas that she did not author or endorse.[52]
  1. [125]
    I have already noted above that Ms Thomas impressed me as an eminently credible witness. My impression of her in that regard extends across the entirety of the evidence she gave in the proceedings. Ms Thomas gave evidence and was cross examined about her statement to WorkCover. While there were inconsistencies on some aspects of her evidence, they were minor and readily explicable due to the period of time that had passed. The sunburn cream incident occurred in November 2011. Mrs Bond left the workplace in April 2014. Ms Thomas was first required to commit her recollections to writing when she completed her statement to WorkCover somewhere between May 2014 and May 2015. Ms Thomas gave evidence in these proceedings about these matters in June 2020.
  1. [126]
    It is inevitable that a person's memory will be less than clear over a period of eight and a half years. In any event, Ms Thomas gave evidence that was broadly consistent and I accept her clear denials. [53]
  1. [127]
    Further, Ms Thomas relied to a large extent on a contemporaneous note that she made of a meeting she had with Mrs Bond shortly after the incident in November 2011.[54]  Mrs Bond accused Ms Thomas of fabricating the meeting note and asserted that the meeting did not take place. I reject completely the allegation that Ms Thomas has fabricated the meeting note or lied to WorkCover about that or at all.
  1. [128]
    The grievance letter delivered by Mrs Bond that is Exhibit 1 in these proceedings was lengthy and raised serious allegations. It is entirely plausible that it would have precipitated a meeting of the type described by Ms Thomas and even more plausible that, given the serious nature of the matters raised by Mrs Bond, Ms Thomas would document the meeting. Documenting an incident in this way is an entirely typical response for a manager to such a complaint. 
  1. [129]
    Having had the opportunity to observe Ms Thomas giving her evidence, including cross examination, I accept entirely her denial of the allegation that she lied in her WorkCover statement as an act of victimisation or at all. 
  1. [130]
    As the allegation that Ms Thomas lied is not made out, it follows that the first element of victimisation is not proven by Mrs Bond. There is no need to enquire further as to her reasons but, to the extent it is necessary, I find also that there is no evidence that Ms Thomas gave the statement to Crown lawyers for a proscribed purpose.
  1. [131]
    The claim against Ms Thomas for victimisation therefore fails.

Claims against Kerrith McDermott

Background

  1. [132]
    After Mrs Bond left work on 14 April 2014, she remained absent until the termination of her employment on 28 February 2017. In the intervening 3 years, Mrs Bond pursued (unsuccessfully) a claim for workers' compensation in respect of inter alia the conduct of Ms Thomas.
  1. [133]
    In August 2015, as a consequence of her prolonged absence, Mrs Bond was directed to attend an IME.  Her attendance on an IME was delayed because Mrs Bond produced medical certification indicating that she was not fit to attend the scheduled appointment. Mrs Bond eventually complied with the direction to attend an IME with Dr Mohamed Milad, Consultant Psychiatrist, approximately eight months later on 14 April 2016.
  1. [134]
    The IME report dated 17 April 2016[55] was expressed in qualified terms in that Dr Milad felt unable to provide a definitive diagnosis in the absence of an opportunity to review medical records of Mrs Bond's treating medical practitioners. As is typical in medico-legal opinions regarding psychiatric injuries, a reliable independent history will inevitably enhance confidence in an opinion. The IME report qualifies the diagnosis on this basis and (quite properly) calls for the production of relevant medical records to assist with a final diagnosis.
  1. [135]
    But additionally, the IME report also concluded that Mrs Bond did not display any problematic symptoms at the time of examination beyond some of a residual nature. In addressing Mrs Bond's capacity to return to her convenor role, the IME report concludes that the issue for Mrs Bond returning to work is predominately her relationship with Ms Thomas and Ms Arnold-Nagus.[56]  The IME report also confirms that Mrs Bond had indicated that she was open to working at a different office but felt this would not be an option. [57]
  1. [136]
    Overall, and despite the somewhat qualified nature of the diagnosis, the IME report concludes that subject to a graduated return program:[58]

She will be able to return to work in a different office or different department without any restrictions. 

  1. [137]
    Following receipt of this report, Mr Harvey wrote to Mrs Bond seeking permission to obtain the medical records sought by Dr Milad in his IME report. Mrs Bond vehemently objected to the request and refused to provide the additional information to Dr Milad. A number of alternative options for methods of disclosure of this information were proposed over the ensuing months, but each were refused.[59]
  1. [138]
    After approximately five months of discussions attempting to resolve the impasse around the IME report, and upon the expiration of Mrs Bond's most recent medical certificate, Mr Harvey wrote to Mrs Bond to conclude the IME process. In his letter dated 21 October 2016,[60] Mr Harvey summarises the history of the IME process and the comments of Dr Milad. In particular (and in reliance on Dr Milad's opinion) Mr Harvey concludes that he is considering transferring Mrs Bond at level to another office. Mr Harvey invites Mrs Bond to show cause why he should not do so.
  1. [139]
    As an aside, simultaneously with the events referred to immediately above (in or about July 2016) Mrs Bond filed an application for reinstatement in this Commission alleging constructive dismissal.[61] Mrs Bond (who was by that time familiar with the content of Dr Milad's report) contended that she had 'three medical reports' confirming she was fit to return to work at her substantive position.[62]
  1. [140]
    Consequently, on 4 November 2016 and in response to Mr Harvey's letter of 21 October 2016, Mrs Bond asserted inter alia that as her application for reinstatement was still before this Commission, it was not for Mr Harvey to decided where or if Mrs Bond ought to be transferred.[63]
  2. [141]
    On 17 November 2016, Mr Harvey replied to Mrs Bond.[64] Noting Mrs Bond's response and also the contradiction that Mrs Bond was asserting she was fit to return to her substantive position whilst simultaneously tendering medical certificates covering a period up to and including 5 September 2016, Mr Harvey determined to transfer Mrs Bond to a permanent AO4 convenor role at Caboolture.
  1. [142]
    Mr Harvey's letter formally directed Mrs Bond to commence her employment on 28 November 2016 at 9:00am. The letter also reminded Mrs Bond that she could be liable to disciplinary action if she failed to comply with the direction without reasonable excuse.
  1. [143]
    Mrs Bond did not communicate any objection to Mr Harvey's direction. Mrs Bond did not comply with the direction. Mrs Bond did not notify any relevant person in advance or when she became unwell that she would not be able to comply with the direction. None of these facts can be disputed.
  1. [144]
    Shortly after midday on 29 November 2016, over 24 hours after Mrs Bond was directed to attend work, Mr Bond (on behalf of Mrs Bond) notified lawyers at Crown Law that Mr Harvey's letter had caused Mrs Bond to become unwell.[65] He followed this by reiterating his claim that Mrs Bond had been constructively dismissed. While not overtly stated, this statement appears to suggest Mr Harvey's direction has no effect given Mrs Bond asserts she has been dismissed. But Mr Bond goes on to state that if Mrs Bond was not constructively dismissed, then she was not medically fit to comply with Mr Harvey's direction. Mr Bond subsequently supplied a medical certificate on behalf of Mrs Bond on 3 December 2016.
  1. [145]
    In the circumstances of Mrs Bond's conduct, it was determined to commence a formal disciplinary process. Because Mr Harvey had conducted the IME process it was considered appropriate that another manager outside of the Department ought to conduct the disciplinary process.[66] This approach is not controversial and is typically taken to ensure fairness to an employee such as Mrs Bond by e.g. protecting against any conscious or subconscious bias that Mr Harvey might have developed.
  1. [146]
    It was at this point that Ms McDermott, Deputy Commissioner with Corrective Services, was approached to oversee the disciplinary process. There are allegations made by Mrs Bond about Ms McDermott being 'recruited' by Mr Lee Fairbank to commence disciplinary proceedings. They will be dealt with separately and in detail later in these reasons.

Victimisation because of allegations made by Mr Bond in show cause process

  1. [147]
    The Queensland public service has well established practices with respect to disciplinary processes. In circumstances where the spectre of misconduct arises with respect to a particular employee there are very familiar and formulaic stages for the process which are always accompanied by correspondence that serves to create a clear record of the process.
  1. [148]
    Ms McDermott was given responsibility to conduct the disciplinary process and as such she was the signatory on each letter and the point of contact for Mrs Bond's responses.[67] The process in Mrs Bond's case is documented in the typical fashion described above and all the relevant correspondence making up the record of the disciplinary process (including the letter of termination) are conveniently in evidence as Exhibits 92 to 96.
  1. [149]
    In the typical fashion, the show cause process applied to Mrs Bond in three stages where Mrs Bond was firstly informed by Ms McDermott of the allegation and invited to respond and show cause why she ought to not be disciplined. Then secondly, following consideration of her written response, Mrs Bond was informed by Ms McDermott the allegation warranted disciplinary action, and termination of employment was being considered. Mrs Bond was then afforded the opportunity to show cause why the disciplinary sanction of termination of employment ought not to be imposed. Finally, following consideration of her second response, Mrs Bond was informed of the outcome i.e. the termination of her employment.  
  1. [150]
    At all times through the show cause process, Mrs Bond elected to have Mr Bond write her responses to the show cause letters. Each show cause response letter from Mrs Bond commenced with the words "Mrs Bond has appointed me to respond to your…letter…"[68] It ought to be noted that Mr Bond has legal qualifications from the United States of America. He has a long history of acting as Mrs Bond's representative in this and other related matters. It is relevant to this allegation to make these observations at this point because of the pivotal role Mr Bond's letters played in the outcome of the disciplinary process.
  1. [151]
    The foundation of this complaint by Mrs Bond is that she was victimised because of complaints or allegations made by Mr Bond during the show cause process that pertained to contraventions of the AD Act. During the hearing of this matter, Mr Bond was at pains to have the Commission accept that the letters sent in response to the show cause process were authored by him and were in no way the thoughts or comments of Mrs Bond, thus Mrs Bond was being 'punished' for his actions. There are some fundamental flaws with this proposition.
  1. [152]
    Regardless of what Mr Bond might have understood his role was in writing those letters, each of them was plainly prefaced in the opening sentence with Mrs Bond's apparent endorsement i.e. "Robyn Bond has appointed me to respond". On any application of the conventions of the English language, that statement is clear. It is approaching farcical to argue that the recipient of such a letter would assume that Mrs Bond has wholly delegated responsibility for the responses without (on some level) endorsing the content. 
  1. [153]
    Regardless of whether Mrs Bond read and understood the letters authored by Mr Bond, she was plainly aware of her need to respond (hence her 'appointment' of Mr Bond) and (at the very least) thereafter delegated that obligation to Mr Bond to comply. In doing so, she cannot abrogate her personal responsibility for those letters and their content. There can be no doubt that Mrs Bond handed responsibility to Mr Bond to advocate for her.[69]
  1. [154]
    Further, I consider it is entirely implausible that Mr Bond, either as a lawyer, a representative, or a husband, would purport to make such important representations on his client's/wife's behalf without some degree of consultation with her. Mr Bond did not give evidence and I give no weight to assertions he made from the bar table to the effect that Mrs Bond was oblivious to the content of the letters. 
  1. [155]
    In any event, all speculation about Mrs Bond's knowledge of the content of the letters was able to be put aside when Mrs Bond (eventually) gave clear evidence that she was not only aware of at least one letter, but that she contributed to drafting it. In a most unimpressive display of credit, on the second day of the hearing Mrs Bond gave equivocal responses to direct questions from the Commission about her knowledge of the content of the letters in question:[70]

MR BOND: As a general rule in my communications with the department did you have anything to do with the letters that I wrote to them?

…

MRS BOND: No, not really.

…

COMMISSIONER: You – did you read the letters Mr Bond was sending on your behalf?

MRS BOND: Not at the time, or if I did, I didn't remember them.

…

COMMISSIONER: Sorry, did you know what words he was using or not? Because I’m not clear on your answers. Did you know what words he was using in the letters?

MRS BOND: Whilst he was writing them, no; afterwards, probably.

COMMISSIONER: How long afterwards?

MRS BOND: Probably after he'd sent them. I don't know…

  1. [156]
    By contrast to this evidence, on the third day of the hearing when the questioning circled back to the letters in question, Mrs Bond gave much clearer evidence: [71]

COMMISSIONER: And did you discuss the letter with him (Mr Bond) when it was sent?

MRS BOND: Yes. I did.

COMMISSIONER: All right. Did you read the letter before it was sent?

MRS BOND: Yes. I most certainly did.

COMMISSIONER: All right. So this letter had your approval before it was sent?

MRS BOND: Yes.

  1. [157]
    While not very much turns on the question of Mrs Bond's knowledge of the letters in question, in my view this moment in the proceedings gave acute insight into Mrs Bond's reliability as a witness.  Further, I am satisfied that from her admitted knowledge of the first letter, Mrs Bond would have (at the very least) some idea or expectation of the tone and nature of the second response sent by Mr Bond. 
  1. [158]
    Of course, the extent of Mrs Bond's knowledge or approval of these letters is ultimately a peripheral issue in the context of the victimisation complaint.
  1. [159]
    Allegations of contraventions of the AD Act contained in the response letters sent on Mrs Bond's behalf (with or without her knowledge) are what is said to give rise to this claim of victimisation.[72] A cursory consideration of the correspondence exchanged in the show cause process reveals quite plainly why Mrs Bond's employment was terminated, and it was entirely unrelated to any proscribed reason.
  1. [160]
    The initial show cause letter sent by Ms McDermott on 9 December 2016[73] is entirely in keeping with the standard form of such letters typically issued in public sector disciplinary processes. In this instance, it relevantly reads:

Allegation 1

That you contravened, without reasonable cause, a direction given to you by Mr Sean Harvey, Assistant Director-General, Youth Justice Services, to attend for work at the Caboolture office of Youth Justice Services on Monday 28 November 2016 at 9:00am.  

  1. [161]
    The allegation to which Mrs Bond was asked to respond was no more complex than that. Unfortunately, the matter rapidly expanded and deteriorated once Mr Bond became involved.
  1. [162]
    On 6 January 2017, Mr Bond authored Mrs Bond's reply.[74] It is important to note here that I have observed that Mr Bond has a particular trait in his engagement style which invariably leads to the escalation of otherwise simple matters. Mr Bond often purports to reframe the propositions put by others with whom he is in conflict but, in doing so, he invariably distorts the point and unilaterally opens up contrived controversies. This in turn creates a platform for him to make lengthy speeches ventilating a variety of his speculative persecution theories.
  1. [163]
    In my view, Mr Bond's propensity to inaccurately reframe simple propositions has contributed to significant amounts of the parties' time and effort being diverted away from simple and relevant points in this matter. His conduct of the show cause process on Mrs Bond's behalf is but one example of this.
  1. [164]
    In the introductory paragraph of the letter of 6 January 2017,[75] Mr Bond firstly re-states the allegation from Ms McDermott's letter almost verbatim. But then Mr Bond goes on to say:

Framed another way, you direct her to show cause why she should not be disciplined for suffering an illness, as confirmed by her doctor, that precluded her from attending work at the Caboolture or any other office on Monday 28 November 2016 at 9:00am. In essence, you direct her to show cause why she shouldn't be disciplined for being too sick to go to work. The short answer to your question is that it would be unlawful for you to do so.

  1. [165]
    It is plain from this distorted re-statement that Mr Bond fundamentally misunderstands the allegation and the legal principles surrounding it. Mr Bond's distortion of the allegation seeks to portray what ought to have been Mrs Bond's explanation to the allegation as the actual mischief being alleged. And from there on, Mr Bond's misguided outrage erupts.
  1. [166]
    When responding to this allegation on behalf of Mrs Bond, Mr Bond only had to explain that Mrs Bond was unwell and that e.g. he was too preoccupied caring for her to make timely contact explaining her absence. The medical certificate procured on 3 December 2016 would have provided some degree of support. Such an explanation (with an additional expression of contrition) would, in all likelihood, have not justified a serious sanction. 
  1. [167]
    However, the opportunity to mitigate Mrs Bond's conduct began to be lost when Mr Bond continued (over the course of 6 pages) to make a series of serious allegations predominately against Mr Harvey, Ms McDermott herself, and 'the government'. His letter reads (at pages 3 to 4):

…the reason Mrs Bond should not be disciplined in relation to the allegation detailed in your letter is because the Department should not waste taxpayer dollars by enlarging litigation between Mrs Bond and the Department by purporting to discipline her for a legally prohibited reason. Of course, considering that Sean Harvey has been trying to concoct a basis to terminate Mrs Bond's employment…since at least 28 February 2015, I have little doubt that it has been predetermined that Mrs Bond's employment will be formally terminated…

…

While your show cause letter is obviously an attempt by the government to give the appearance that it is providing Mrs Bond with natural justice, your biased recitation of facts suggests that nothing Mrs Bond says in response to your letter will alter the Department's pre-determined decision to terminate her employment…

…

Your indifference to Mrs Bond's illness and her compliance with the Sick Leave Directive implies that Mrs Bond's fate was determined long before your receipt of this response.

  1. [168]
    The above is just a short example of the caustic and accusatory tones used by Mr Bond in his first correspondence on Mrs Bond's behalf. Far from being the short and simple explanation it could have been, Mr Bond appears to have treated the invitation to respond as an opportunity to lecture, berate and accuse. 
  1. [169]
    Possibly because he was personally connected to many of the inter-related antecedent events, and possibly because he was himself a party to multiple forms of litigation against the Department, it is plain that by the time he came to be writing these letters that Mr Bond lacked a critical element of good advocacy namely, objectivity. Whatever the cause of this inappropriateness, Mrs Bond's 'appointment' of Mr Bond to respond on her behalf appears to have served only to obliterate the last vestiges of good will in her relationship with her employer.
  1. [170]
    In my view, the first response of Mr Bond in the show cause process on Mrs Bond's behalf was grossly impertinent and wholly inappropriate. Further, given that Mr Bond confirmed he was appointed by Mrs Bond, Ms McDermott was entitled to consider the content of that correspondence was authorised and endorsed by Mrs Bond.
  1. [171]
    Following the first response from Mr Bond on Mrs Bond’s behalf, the process continued.
  1. [172]
    On 10 February 2017, Ms McDermott proceeds with the second stage of the show cause process by responding to Mrs Bond.[76] In general terms, Ms McDermott firstly corrects the error in Mrs Bond's response to the allegation and the fundamental misconception regarding the conduct that is the subject of the allegation. Any suggestion of Mrs Bond being disciplined for suffering an illness is rejected by Ms McDermott.
  1. [173]
    Ms McDermott then responds in some detail to the controversial (but peripheral) issues raised by Mr Bond on Mrs Bond's behalf i.e. the existence of the reinstatement proceedings and the numerous allegations of disingenuous conduct on the part of various persons. Ms McDermott no doubt felt compelled to confront such allegations for the purposes of placing those responses on the record, but they are plainly not the predominant function of the letter.
  1. [174]
    Further, the fact that Ms McDermott is compelled to respond to irrelevant controversies raised by Mr Bond in no way causes me to conclude that those matters, which were unilaterally and unnecessarily introduced by Mr Bond, somehow overtook Ms McDermott's consideration of Mrs Bond's conduct on 28 November 2016 or became the basis of the disciplinary decision. After dispensing with the irrelevant and impertinent allegations, Ms McDermott proceeds to address the real issue.
  1. [175]
    The letter comprehensively summarises the response to the allegation. In my view, Ms McDermott has been remarkably successful at extracting the relevant portions of the response from Mr Bond's letter given they were largely obscured by the amount of irrelevant and abusive content. Ms McDermott then summarises her findings and relies only on matters pertinent to the allegation i.e. the explanation offered as to why no contact was made until the day after Mrs Bond was directed to attend.
  1. [176]
    While Ms McDermott's letter has all the typical hallmarks of public sector verbosity, the core of her finding is easily identified and reads as follows:

I have considered your submissions that you did not comply with Mr Harvey's direction on the basis that you were unwell. I accept that you provided a medical certificate to the Department, via an email from Mr Bond at 3:07pm on Friday 2 December 2016, stating you had a medical condition and would be unfit for work between 28 November 2016 and 28 February 2017. You admit that this medical certificate was not provided until 5 days after you were required to attend for work at the Caboolture office. I do not however consider your provision of a medical certificate on 2 December 2016 excuses your failure to make any form of contact with your employer on 28 November 2016 or the morning of 29 November 2016.

(Emphasis added)

  1. [177]
    Ms McDermott's conclusion as to the allegation of a contravention without reasonable excuse is clearly founded on these facts. The components of her decision, which do not include any proscribed considerations, are plainly identifiable in her letter. 
  1. [178]
    Having considered Mrs Bond's response to the first stage of the show cause process and having determined to consider termination of Mrs Bond's employment, Ms McDermott then proceeds to the second stage and invites Mrs Bond to show cause why her employment should not be terminated. Yet again, Mrs Bond appoints Mr Bond to author the response. 
  1. [179]
    Mr Bond's response to the second stage of the show cause process was contained in a letter on Mrs Bond's behalf dated 17 February 2017.[77]  It is not necessary to descend into detail about it. Suffice to say it is liberally peppered with sarcastic and impertinent language including inter alia assertions that Ms McDermott is 'fabricating inconsistencies where none exist' and other serious allegations of dishonesty supported by absolutely nothing other than Mr Bond's vivid imagination.
  1. [180]
    The response letter is replete with grossly inappropriate personal attacks on Ms McDermott regarding her conduct of the process which, even if Mr Bond had genuine grounds to complain, was confronted by him in a thoroughly improper manner and without any independent evidence.[78] 
  1. [181]
    In the final stage of the process i.e. the termination letter,[79] Ms McDermott is yet again compelled to address the multiple scandalous allegations unilaterally and unnecessarily inserted into the process by Mr Bond. Notwithstanding that this task consumes a large portion of the letter informing Mrs Bond of the decision to terminate her employment, it is carefully quarantined as a 'preliminary' matter.
  1. [182]
    Ms McDermott is required (over 7 to 8 pages) to address each of the ever-expanding personal attacks made on her integrity and on that of her colleagues' before she can eventually proceed to consider the response to the penalty show cause. Again, the fact that Ms McDermott was drawn into a discussion about these matters raised by Mr Bond does not in any way lead me to conclude that it was those allegations that influenced her decision to terminate Mrs Bond's employment.
  1. [183]
    Any person versed in the dynamics of managing and maintaining employment relationships will be able to recognise conduct that is inconsistent with the continuation of employment. There are innumerable examples of such conduct and gross insubordination is certainly among them. Indeed, Ms McDermott alludes to this in cross examination.[80]
  1. [184]
    As a public service employee, Mrs Bond was (at the relevant time) covered by the (now repealed) Public Service Act 2008 (Qld) ('the PS Act').  Section 187(1)(d) of the PS Act set out the relevant ground for which a public service employee could be liable to discipline i.e. failure to comply with a direction without reasonable excuse. Section 188 of the PS Act set out the types of disciplinary action that might be taken, which includes termination of employment.[81]
  1. [185]
    It follows that a proven finding of conduct for which a public service employee could be liable for disciplinary action can form a basis for a decision to terminate employment. In some cases, the conduct will be so objectively serious that it will attract such a sanction regardless of mitigating circumstances. But in other cases where the conduct is potentially less serious or perhaps amenable to mitigation, the satisfactory (or unsatisfactory) nature of an employee's response can legitimately be a factor in determining the appropriate penalty.   
  1. [186]
    The termination letter issued by Ms McDermott makes plain what factors she considered.[82] The disregard for Mr Harvey's direction was clearly the genesis of the disciplinary action. But, in determining the proper penalty, Ms McDermott (as she was entitled to do) also took account of the nature and manner of Mrs Bond's response to the allegation. But that does not mean that those factors formed the basis of the decision to terminate Mrs Bond.
  1. [187]
    Quite apart from the lack of proper explanation for not notifying Mrs Bond's non-attendance on 28 November 2016, Ms McDermott considered the responses to the allegation unsatisfactory because of inter alia apparent contradictory responses provided by Mrs Bond with respect to whether she asserted Mr Harvey's direction was unreasonable and when she first developed anxiety and what precipitated it.
  1. [188]
    It should not need to be explained that an absence from work due to illness carries with it an obligation by an employee to advise of their absence as soon as practicable. Quite apart from such obligation being well recognised industrially, it is equally a matter of common courtesy. Each case will be different, and there will from time to time be circumstances where the employee's practical capacity to advise of their absence will not arise until sometime after they are officially absent. But that was never the case here. No evidence from Mr Bond has ever been given  to explain why he could not send an email or make a phone call advising of Mrs Bond's absence. It is a task that would have taken mere minutes.
  1. [189]
    There was a glaring lack of contrition demonstrated by Mrs Bond in her responses to the show cause letters. A lack of contrition demonstrates lack of insight into the inappropriateness of her conduct.  All of these factors may legitimately inform a decision maker considering a penalty for specified conduct but they are not, of themselves, the reasons for the penalty. They are akin to aggravating factors or post-offence conduct considered by courts when considering sentencing in criminal matters.
  1. [190]
    Insofar as Ms McDermott considered the multitude of allegations contained in the two letters authored by Mr Bond (including his reference to the AD Act complaints) they are of the same character. Mr Bond's vitriolic letters were not the reason for the termination, but they informed the decision in that they gave a very clear picture of the state of the employment relationship.[83]   
  1. [191]
    Ms McDermott indicates in the termination letter that the responses provided demonstrate a 'concerning' lack of insight.  I completely agree. Even at the time of the hearing it was plain from Mr Bond's conduct of the matter that he was utterly devoid of any capacity to understand just how obnoxious his conduct on behalf of Mrs Bond had been.
  1. [192]
    Indeed, in a striking irony, for all of his groundless assertions of unfairness and predetermination against Ms McDermott and others, it is my view that it was Mr Bond who unfairly and pre-emptively alleged disingenuous motives based entirely on his own theories of persecution.  
  1. [193]
    For perspective it must be remembered that immediately prior to 28 November 2016, Mrs Bond had an opportunity to return to her role, albeit at Caboolture. It was the type of outcome she had apparently expressed interest in during her IME consultation,[84] and one that (one would think) would be well received when it actually materialised in Mr Harvey's direction. Having read Dr Milad's report, Mr Harvey could not have known that Mrs Bond would react so adversely to his direction. If Mrs Bond's theories of a conspiracy to concoct grounds for a dismissal or provoke a resignation were true, then Mr Harvey's direction for her to return to work was an enormous bluff on his part.
  1. [194]
    It must also be kept in mind that to succeed on a claim for victimisation, Mrs Bond has to prove that Ms McDermott dismissed her because she or a person associated with her inter alia is involved in a proceeding under the AD Act.
  1. [195]
    Mr Bond's letters on behalf of Mrs Bond raise all manner of allegations and grievances with most of them being plain accusations of dishonesty. The references to the AD Act proceedings that are said to attract the victimisation form only a small part of the multitude of allegations levelled at Ms McDermott and others.[85]
  1. [196]
    There is a brief reference to the AD Act complaints in the first response letter as the basis for the theory about Mr Harvey's malevolent plans for Mrs Bond.[86] In the second letter they only rate a mention as context for Mr Bond's allegation of untruthfulness levelled at Ms McDermott.
  1. [197]
    Even if the AD Act complaints did form a basis for Ms McDermott's decision (which I am satisfied they did not) it is difficult to imagine how they might rise to the level of being the substantial and operative factor[87] when, apart from the failure to follow the direction, there are so many other inappropriate smears and insults contained in the letters that might just as easily (or collectively) have impacted on Ms McDermott's decision. 
  1. [198]
    I accept the evidence of Ms McDermott as to her reasons for the decision to terminate Mrs Bond's employment. Under cross examination Ms McDermott was resolute and compelling.[88] 
  1. [199]
    Mrs Bond has not proven that Ms McDermott victimised her within the meaning of the AD Act or at all. That claim must fail.

Victimisation by denying Mrs Bond natural justice

  1. [200]
    The facts relevant to this claim are essentially identical to the claim addressed immediately above and do not require restatement here. In respect of this claim it is alleged that Mrs Bond was victimised by Ms McDermott by denying her natural justice with respect to the termination of Mrs Bond's employment.
  1. [201]
    More particularly, it is contended that Ms McDermott failed to give Mrs Bond notice that she was considering terminating her employment because of the nature and tone of the language found in the letters drafted by Mr Bond in respect to the show cause process. It is contended that this denial of natural justice was because of the reference to the AD Act complaints found in those letters.
  1. [202]
    The propositions underpinning this claim are entirely incorrect.
  1. [203]
    Firstly, for all of the reasons I have set out above, the singular basis for the termination of Mrs Bond's employment was plainly the conduct identified in the first show cause letter i.e. her failure to comply with the direction of Mr Harvey without reasonable excuse. To be clear, being ill was only part of what might constitute a reasonable excuse. A timely notification of her absence was the other important part, and it was that part that was unapologetically absent from Mrs Bond's responses. Both Mr and Mrs Bond appeared to be completely oblivious to this, even at the time of hearing.
  1. [204]
    The nature and tone of Mrs Bond's responses to the show cause letters were not the reason for her dismissal, but they informed the decision in that they demonstrated a lack of contrition, a lack of insight and revealed what could only be described as a degree of malignant resentment for the Department and others because of a perceived plot to orchestrate Mrs Bond's dismissal. Such resentment appears to have arisen entirely through Mrs Bond's subjective perceptions of the motives of her colleagues and managers.
  1. [205]
    On any objective consideration of Mrs Bond's responses, they were so inappropriate and so disproportionate to the allegation that it would be clear to any manager that the employment relationship was unsustainable.
  1. [206]
    Secondly, even if the reference to the AD Act complaints contained in the response letters could be considered a reason for the termination of Mrs Bond's employment, for all of the reasons I have set out above, I do not accept that it could have been the substantive and operative reason given the diverse and controversial context in which they were included.
  1. [207]
    Finally, the alleged denial of natural justice is (presumably) the first element of Mrs Bond's complaint of victimisation in this claim. I am unable to find any denial of natural justice on the facts. The PS Act is not prescriptive in terms of the sanctions that can be applied where conduct liable to disciplinary action is found to have occurred. Section 187(1) of the PS Act sets out a range of conduct that will attract disciplinary action. Section 188(1) of the PS Act sets out the range of sanctions that might be imposed, including termination of employment.
  1. [208]
    The opening paragraph of the first letter from Ms McDermott in the show cause process invokes chapter 6, s 187 of the PS Act. This is more than clear notice to Mrs Bond that the process to which she is being subjected will, as a possible conclusion, result in her dismissal. Indeed, Mr Bond foreshadows that in his allegations of predetermination.
  1. [209]
    The safety nets contained in the formulaic procedures applied by the public sector in such matters are numerous. In this matter, the spectre of termination of employment was clearly a possibility from the outset, but it came into sharp focus by the middle of the process. Ms McDermott plainly foreshadows termination of employment in the second show cause letter.[89] That letter includes references to inter alia the numerous irrelevant and unnecessary allegations set out in the first response letter. Ms McDermott goes on to invite Mrs Bond to show cause why her employment should not be terminated.
  1. [210]
    Even if the tone and content of Mrs Bond's response letters was somehow found to be the reason for Mrs Bond's dismissal (which it was not) I consider that Mrs Bond received more than adequate natural justice in the broader sense in that, Ms McDermott gave Mrs Bond an opportunity to make submissions why she should not be dismissed.
  1. [211]
    This claim against Ms McDermott must fail.

Discrimination on the basis of mental illness

  1. [212]
    This claim against Ms McDermott is particularised as follows:[90]

Ms McDermott discriminated against Robyn by terminating her employment substantially because she suffers from a mental illness that Ms McDermott believed could result in her failure to follow directions given by managers in the future.

  1. [213]
    As with the previous allegation, the facts forming the relevant background are already set out above and do not need to be repeated. Again, given my conclusions above, the propositions underpinning this allegation are incorrect.
  1. [214]
    The only 'evidence' presented is the termination letter[91] and Ms McDermott's testimony which Mrs Bond urges the Commission to construe in a particular way.[92]
  1. [215]
    The relevant part of the termination letter is contained in one of 22 separate points to which Ms McDermott 'had regard' in considering her decision on disciplinary action, and which are set out across six pages within that 15-page letter. The portion of the passage relied on by Mrs Bond as 'evidence' of the proscribed conduct is the last sentence of the entire paragraph that makes up the 11th point.
  1. [216]
    The full paragraph reads as follows:

The fact that you failed to comply with Mr Harvey's direction, despite being informed that the failure to comply may result in disciplinary action shows a blatant disregard for directions issued to you by senior officers of the Department. In this case, the responsible person with whose direction you failed to comply with was that of Mr Sean Harvey, Assistant Director-General. Naturally, I hold reservations about whether, if I was to impose disciplinary action other than termination, you would be willing or able to comply with directions given to you in future by your managers or supervisors.

  1. [217]
    I note firstly that to 'have regard' to a factor does not make that factor the reason for the termination of employment. In any event, I am satisfied it was not the reason relied on by Ms McDermott.
  1. [218]
    In cross examination of Ms McDermott, Mr Bond took her to this passage in her termination letter and in particular, questioned her about the use of the term 'able'. The relevant passage of cross examination is set out at page 47 of Mrs Bond's post-hearing submissions. It is fair to say that neither the questions nor the answers are especially clear. It is also fair to say that the portion of the cross examination that was clear on this point was omitted from Mrs Bonds written submissions. The omitted portion reads as follows:

MR BOND: So are you saying that that factored into your con – your decision, the fact that she did have an anxiety attack on the 28th of November, that that might in the future cause her to not follow a direction?

MS MCDERMOTT: To not follow a general direction, no, not at all.

  1. [219]
    Later during cross examination Ms McDermott said this:[93]

MR BOND: So the truth is, Ms McDermott, that your concern about her following directions in the future was based on the fact that she had a mental illness, and that mental illness might affect her ability to, in the future, comply with other directions; is that fair?

MS MCDERMOTT: No.

MR BOND: Didn't you just say that you were concerned she wouldn't follow directions because she might also have an anxiety attack in the future?

MS MCDERMOTT: And the direction that she didn't follow, she didn't attend that, but the issue has always been, and as I stated before, that she was given a direction, she didn't comply, and I accept she was sick, but it took some day and a half for any advice to occur.

  1. [220]
    Ms McDermott's denial of proscribed conduct could not be clearer. I accept her evidence entirely as accurate and honest account of her decision-making process. Further, no objective reading of the termination letter in full could lead to a conclusion that Mrs Bond's mental health issues were in any way (let alone substantially) decisive for Ms McDermott in her decision to terminate Mrs Bond's employment. 
  1. [221]
    As I have concluded above, Ms McDermott did not (substantially or otherwise) terminate Mrs Bond's employment for any other reason than her failure to comply with Mr Harvey's direction without reasonable excuse. Further, Ms McDermott has denied any proscribed intent and I accept her denial.
  1. [222]
    The claim against Ms McDermott in respect of impairment discrimination must fail.

Relationship status discrimination

  1. [223]
    This complaint is particularised as follows:[94]

Kerrith McDermott discriminated against Robyn on the basis of her relationship status when she terminated Robyn’s employment because she was offended by allegations made by her husband.

  1. [224]
    For the reasons already set out above, this claim is misconceived and must fail. Prohibitions of discrimination on the basis of relationship status are limited to discrimination in respect of a person's status, not their spouse.
  1. [225]
    Further, if I am incorrect about that, the very clear and compelling evidence of Ms McDermott considered above confirms her reasons for dismissing Mrs Bond do not include any consideration of being offended by allegations made by Mr Bond. 
  1. [226]
    Additionally, even if it could be concluded that the offensive tones of the show cause response letters did materially influence the decision to terminate Mrs Bond's employment, there was no evidence that Ms McDermott regarded the allegations as being 'made' by Mr Bond.
  1. [227]
    Despite numerous unsuccessful attempts to extract such evidence from her during cross examination, Ms McDermott made her position quite clear when she ultimately testified as follows:[95]

MR BOND: Okay. So although the responses came from me yet you terminated her, in large part, by what you call her conduct during the show cause process and the only conduct that you're referring to would be the allegations that her husband made in the show cause process; right?

MS MCDERMOTT: As far as I'm concerned the letters I received were from Mrs Bond. They might have been authored by you but they were endorsed by her. If you misrepresent her views that's another issue, and not for me.

  1. [228]
    Evidence rarely gets clearer than that. The claim of discrimination on the basis of relationship status against Ms McDermott must fail. 
  1. [229]
    The only remaining claims to consider now are those against the Department.

Claims against the Department

Introduction

  1. [230]
    There are a number of remaining complaints in these proceedings that identify alleged contraventions of the AD Act by certain individuals but do not (or no longer) seek to make those individuals respondents in these proceedings. These claims are expressed in the material filed by Mrs Bond as claims of contraventions by the Department but are more properly characterised as claim for which the Department is vicariously liable for the contraventions of its employees.
  1. [231]
    Actions against the Department exclusively in respect of vicarious liability i.e. where no employee is named as a respondent are permissible under s 133 of the AD Act, though it is noted that a prerequisite to establishing vicarious liability is proving that a 'persons workers or agents have contravened the Act'.[96] That is to say, on the plain meaning of s 133 of the AD Act, a complainant must first prove the worker or agent contravened the AD Act. It is only on proof of a contravention that the Department can be vicariously liable.
  1. [232]
    The Department has denied any contraventions but has conceded that if any are found then vicarious liability follows.
  1. [233]
    There are four claims against the Department.

Lee Fairbank recruited Kerrith McDermott to initiate disciplinary proceedings and terminate Robyn Bond's employment

  1. [234]
    Mrs Bond particularises this claim as follows:[97]

The State of Queensland victimised Robyn Bond when Lee Fairbank recruited Kerrith McDermott to initiate disciplinary proceedings against, and terminate the employment of Robyn Bond because she is involved in a proceeding under the Act against Christine Thomas and the State.

  1. [235]
    On its face, this allegation is nothing short of extraordinary. It contends that a senior public servant deliberately orchestrated a disciplinary process against an employee as a form of punishment for that employee making a discrimination complaint against another employee.
  1. [236]
    One would think that if such a serious claim was going to be advanced by a complainant it would be accompanied with compelling evidence. One would also think that, at a minimum, if such a serious allegation was going to be levelled at a senior public servant, that the complainant (who bears the onus of proof) would ensure that the subject of their allegations was compelled to attend proceedings and have those allegations put to them. Mrs Bond did none of this.
  1. [237]
    As set out above, the evidence confirms that Ms McDermott was indeed 'recruited' to conduct a disciplinary process with Mrs Bond, though the stated reasons for her involvement are far from sinister. [98]
  1. [238]
    Ms McDermott was brought into the process to ensure independence. She was a senior employee in a different department. Mr Harvey, who might ordinarily have taken on the task, was excluded because he had already conducted the IME process. It was considered fairer to Mrs Bond to have a senior officer who had no knowledge or history with Mrs Bond to conduct the process.
  2. [239]
    Further, Ms McDermott was adamant that all of the decisions she subsequently made regarding Mrs Bond (including her dismissal) were made by her. As I observed above, Ms McDermott was a witness of credit in my observations of her. If there was any plot to oust Mrs Bond, I am entirely sure that Ms McDermott was ignorant of it.[99]
  1. [240]
    Mrs Bond also relies on the "email trail left by Lee Fairbank and Pam Phillips" that Mrs Bond contends 'suggests' they never believed Mrs Bond would present for work at Caboolture (as directed by Mr Harvey) and that the decision to transfer her was a "scheme concocted by the two of them to get rid of her, once and for all".[100]
  1. [241]
    In the circumstances of this very dramatic submission, and a complete void of evidence from the two accused officers, close examination of the email trail is required. But before doing so, a preliminary issue regarding that document requires address.   
  1. [242]
    The emails in question are identified in Mrs Bond's submissions as 'Ex. ID 89'. The document in question was admitted provisionally for the purposes of identification. It was done so on the expectation that Mrs Bond would later put the document to a relevant witness to identify. This was explained to Mr Bond.[101]
  1. [243]
    The document that is 'Ex. ID 89' is two emails between inter alia Mr Lee Fairbank and Ms Melody Arnold-Nagas. Only Ms Arnold-Nagas gave evidence in the proceedings. Exhibit ID 89 was never put to her for identification or comment. In the strict sense, the document is not formally in evidence. However, I am mindful that the Commission is not bound by technicalities and can, where appropriate, depart from the rules of evidence. [102] I further note the comments of Counsel for the respondent with respect to the admission of the document.[103]
  1. [244]
    In the circumstances I am prepared to consider the document provisionally admitted and marked as 'Exhibit ID 89'.
  1. [245]
    Mrs Bond refers to the document as proof of the early origins of the 'scheme' to 'get rid' of her. In particular, the Commission is taken to portions of the email sent by Mr Fairbank. For a proper understanding the full text of the email (dated 15 January 2015) needs to be read:

Thanks Melody.

Helen/Raymond – I think we should look at getting our own IMEs on both Robyn and Kirk now. They have both been absent from work for many months and there seems no realistic prospect of a return to work any time soon, whatever the outcome of WorkCover's redetermination of the claims and Regulator processes thereafter.

In addition, the nature of the allegations and levels of hostility between them and the Department seems to indicate that any return to their substantive roles working at the Maroochydore office is unlikely – Kirk in particular has well and truly burned those bridges. Some independent expert advice on where we and they might go from here in the short, medium and long term would be very helpful.

What do you think?

  1. [246]
    It is difficult to imagine a more banal prelude to such an alleged sinister plot. Mr Fairbank's email does no more than reflect on the state of affairs a little under 12 months after both Mr and Mrs Bond left work. It must be remembered for context that during that period there was a flurry of litigation launched by both Mr and Mrs Bond.
  1. [247]
    Without knowing precisely what Mr Fairbank was referring to, one can well imagine why the reference to 'burning bridges' was used. From my observation of the written advocacy of Mr Bond, it is invariably replete with unnecessary sarcastic smears and personal attacks, all of which typically arise in a context entirely devoid of justification for such hostility. I would consider that Mr Fairbank's comments were probably a fair assessment of the viability of Mr Bond's employment at the time he sent that email.
  1. [248]
    Further, to the extent that Mr Fairbanks forecasts Mrs Bond's demise it is, in my view, little more than the voice of experience speculating about what is likely to happen based on what has already happened. It is in no way a revelation of any scheme or plot to 'get rid' of Mrs Bond.
  1. [249]
    While I have been prepared to consider Exhibit ID 89, I am not prepared to overlook the failure by Mrs Bond to compel Mr Fairbank to give evidence. This serious allegation was hers to prove, and the email is not even remotely a 'smoking gun'. Critically, in order to prove the causal connection essential to prove victimisation, the evidence of the impugned perpetrator is all but essential. It is not the respondent's case to disprove.
  1. [250]
    The remainder of the 'evidence' said to prove this allegation can be found in Mrs Bond's post-hearing written submissions.[104] They are an extraordinary and fanciful submission, founded on nothing more than sinister theories adhered to by Mrs Bond which she contends are proven by reference to e.g. the timing or content of otherwise innocuous emails.  Despite Mrs Bond's attempts to cobble together a lengthy series of events and fragments of testimony as 'proof' of the alleged scheme, there is nothing in those submissions that objectively (or logically) points to Mr Fairbank acting for a proscribed reason, or indeed even unreasonably. 
  1. [251]
    Earnest belief and creative writing are not enough. There is no evidence upon which it could reasonably be concluded that Mr Fairbank was the architect of any scheme to dismiss Mrs Bond for proscribed reasons or at all.  
  1. [252]
    Further, there is ample evidence that Mrs Bond brought about her own demise. What is continually overlooked by Mrs Bond throughout her submission about Mr Fairbank's 'scheme' is that, as of October 2016 when Mr Harvey issued his direction, she had the opportunity to return to employment in her substantive role (albeit at Caboolture). Had Mrs Bond complied with the direction she might still be in employment today. 
  1. [253]
    But, far from being the victim of some elaborate conspiracy as portrayed in her closing submissions, the simple and undeniable fact is that Mrs Bond failed to comply with Mr Harvey's direction and then 'doubled down' on this with her vitriolic responses to the show cause process. What is abundantly clear from the matters discussed above is that Mrs Bond, and Mrs Bond alone, was the architect of her own demise.
  1. [254]
    In the circumstances this claim against the department must fail.

Sean Harvey victimised Robyn by transferring her to Caboolture 

  1. [255]
    Mrs Bond particularises this complaint as follows:

Sean Harvey victimised Robyn by transferring her to Caboolture because she made complaints of unlawful discrimination against Christine Thomas and Melody Arnold.

  1. [256]
    In her closing submissions, Mrs Bond seizes upon evidence given during the hearing by Mr Harvey as effectively admitting he acted for a proscribed reason. The portion of the transcript dealing with Mr Harvey's decision that is relied on reads:[105]

MR BOND: …I wanted to ask you just to elaborate on what your thinking was in that regard at that time?

MR HARVEY: I mean, I think it explains the reasoning. I mean, to me, there were a number of issues with or allegations made against those managers, and my experience had told me that to avoid any more heartache, for a better word, would be to give Mrs Bond the opportunity to work in another place.

(Emphasis added)

  1. [257]
    But this is not the end of Mr Harvey's answer. Mr Harvey immediately continues his answer in the next line of the transcript which is omitted from the portion relied on by Mrs Bond and says:

MR BOND: All right?

MR HARVEY: And – and not to create a situation where it could be unsafe for either party because of what occurred.

MR BOND: Yeah, and just to…?

MR HARVEY: I'm not saying there were safety issues. I'm just saying that it creates a situation – and having been a director … in the human resources area previously, I've had a lot of experience with, you know, trying to deal with conflict issues in workplaces. So it did not, at the time, make sense to place Ms Bond back in those – in that situation where there'd been allegations made.

(Emphasis added)

  1. [258]
    Later in cross examination Mr Harvey is question about the rationale for transfer:[106]

MR BOND: …In other words, were you the driving factor behind that or did somebody come to you and say, I think what we need to do is transfer her to a different location?

MR HARVEY: No, I think from memory, there was conversations with Crown Law. And after reading…Dr Milad’s report, where there were suggestions that Mrs Bond may wish to go to another centre and that was a possibility from her point of view, I think I would have taken that into account in asking people to look at that. And, again, my view is always the same, getting people back to work was the important thing. So I thought that as seeing that as a viable alternative to what was going on at the time. 

(Emphasis added)

  1. [259]
    This reasoning of Mr Harvey is also (and more eloquently) captured in his letter directing Mrs Bond to commence work at Caboolture. [107] That letter, which was contemporaneous with events, sets out the full reasoning and includes reference to Mr Harvey's understanding and consideration of the protracted post-IME dispute where Mrs Bond refused to provide additional medical information to assist Dr Milad's final diagnosis. Mr Harvey noted that Dr Milad had expressed reservations about the likely exacerbation of Mrs Bond's mental health issues if she returned to work under the supervision of Ms Thomas but was far more optimistic about her capacity to return to work in a different location.
  1. [260]
    In his reasons set out in the letter Mr Harvey says:[108]

I am satisfied that the Department has made every effort to obtain the information which would facilitate a further opinion from Dr Milad, which may have unequivocally supported your potential return to your substantive position at Mooloolaba. On the information currently before me however, as outlined above, I am unable to be reasonably satisfied that you are fit to return to your substantive role at Mooloolaba and in particular, to work with your current managers Ms Thomas and Ms Arnold without an unacceptable risk of exacerbation of your symptoms. I am also satisfied that there are no plans on foot to change the organisational structure of the Mooloolaba office such that your position would no longer be required to report to or work with Ms Thomas or Ms Arnold.

(Emphasis added)

  1. [261]
    It is plain from the reasoning set out in his letter, and from his testimony when read in its full context, that the substantive reasoning of Mr Harvey was minimising risk of exacerbation to Mrs Bond's mental health condition. As identified by Dr Milad (at page 21 of his report) Mrs Bond's prognosis for re-injury was guarded if she returned to work under Ms Thomas but was more positive if she worked at a different location. Moreover, Dr Milad records that Mrs Bond expressed a desire to work at a different location.
  1. [262]
    The obvious focus of Mr Harvey was the management of risk of Mrs Bond's potential reinjury which by that stage had persisted for well over a year. The reference to the 'allegations' in Mr Harvey's evidence was merely to acknowledge them as relevant antecedents to the history of Mrs Bond's mental health issues and the stress that further contact with Ms Thomas might cause. This was an entirely appropriate consideration in evaluating the risks. The allegations he referred to were contextual in understanding the risk factors, but they were not the substantive or operative reason for the decision to transfer Mrs Bond. 
  1. [263]
    Consequently, I consider there is no evidence that Mr Harvey acted in a proscribe manner as alleged or at all. In those circumstances the claim of vicarious liability must fail.

The Department discriminated against and victimised Robyn when Melody Arnold Nagas dismissed out of hand Robyn's application to act in the service leader role in 2014

  1. [264]
    The particulars of this allegation are:[109]

Robyn Bond was denied the opportunity to act in the Service leader position in 2014 because she would be supervising her husband if she were the successful candidate, or because she made a discrimination complaint against Ms Thomas, or both. 

  1. [265]
    The uncontroversial facts accompanying this allegation are that on 17 March 2014, Ms Arnold-Nagas emailed staff in the Mooloolaba office to invite expressions of interest for any staff member wishing to be considered to act in Ms Thomas' role during her upcoming absence (of approximately 2 weeks' duration).[110] The email itself acknowledges that the process to appoint someone is, at that stage, not a formal process. Mrs Bond responded indicating she was interested.[111]
  1. [266]
    Approximately simultaneous with this, Mr and Mrs Bond were engaged in a process whereby clarity was being sought about whether they, as a married couple, could (or should) co-convene conferences with victims and youth offenders. Mr Bond in particular was adamant there was no barrier, while Ms Thomas held concerns that there were potential conflict or apprehension of conflict issues that might arise. The disagreement about this issue included references by Mr Bond to discrimination.
  1. [267]
    As I noted earlier in these reasons, I am satisfied that Ms Thomas' concerns were genuinely held. Ms Arnold-Nagas ultimately elevated the issues to Crown Law for an opinion which was received on 9 April 2014.[112] The opinion was that there was no conflict.
  1. [268]
    As noted above, I entirely understand why Ms Thomas held her concerns. The public sector has many policies and directives aimed at protecting against actual or inadvertent inequities or corrupt conduct. As an experienced manager, I would readily accept that Ms Thomas may have had a heightened concern, especially as she might have some culpability for allowing any breach by Mr and Mrs Bond co-convening. But the opinion from Crown Law was the conclusion of the disagreement within the office.
  1. [269]
    As an aside, the advice might have resolved the conflict issue to some degree, but the disagreement about it revealed and prompted a change to the practice of co-convening conferences generally. [113]
  1. [270]
    It is not controversial that Ms Arnold-Nagas encouraged other staff to apply for the acting role. She explained in evidence that she identified certain staff who had previously expressed leadership aspirations or qualities and, on this basis, approached them and encouraged them to apply.[114] It is also not controversial that one such employee was approached after the expiration date for the expression of interest. Finally, it is not controversial that Ms Arnold-Nagas sought some input from Ms Thomas in making her decision. 
  1. [271]
    At some time immediately before 7 April 2014, Ms Arnold-Nagas determined to appoint another employee to the acting role. It was in fact the employee who had been encouraged to apply after the expiration date.
  1. [272]
    Following the announcement of the appointment, Mrs Bond registered her dissatisfaction with the outcome and a meeting was held with Ms Arnold-Nagas to discuss it. Ms Arnold-Nagas made a file note of the meeting.[115]The file note and her evidence given at proceedings indicate that Ms Arnold Nagas was predominately motivated not to select Mrs Bond because, in her view, Mrs Bond had not sufficiently demonstrated leadership skills but, more importantly, she was not trained or experienced in the area of sex offences.
  1. [273]
    Mrs Bond did not accept this feedback. Shortly after receiving this feedback, Mrs Bond went into a mental decline and left work, never to return.
  1. [274]
    The full extent of the case theory of Mrs Bond with respect to this allegation is that laid bare in her evidence which is set out in her submissions (at page 110):

…and for her to say that I didn't have leadership skills, I knew, because she had no contact with me, Melody Arnold, that it had to have come from Christine who I just accused of discrimination.

  1. [275]
    Ms Arnold-Nagas was question by Mr Bond in cross examination about the role played by Ms Thomas and the factors that determined her decision not to appoint Mrs Bond to the role:[116]

MR BOND: …and that you had gone to Christine Thomas to get feedback because you really didn't know Robyn as an employee? Did you understand that that was my compliant?

MS ARNOLD-NAGAS: I can't recall the exact tone of the compliant at the time, but when I say this I am referring to the entire period. So Robyn – so Christine had been Robyn's supervisor for a number of years and so, as part of supervision and as part of decision-making, one of the things that I do take into account is the feedback that people have given me over their time of supervising employees about the quality of their work.

MR BOND: And would you acknowledge that the information that you had about Robyn and her leadership qualities were, whether she was introverted or extroverted, any of those things would have come solely from Christine, because you didn't really have  a supervisory role of Robyn?

MS ARNOLD-NAGAS: I didn't have a supervisory role, but I certainly had observed her in the workplace and in work group meetings and in interactions with other staff and also had knowledge of her lack of qualifications in terms of sex offence matters.

…

MR BOND: So you had indicated that that was instrumental in your choice of who was going to act in the service leader position?

MS ARNOLD-NAGAS: I felt it was an important quality to have, yes.

(Emphasis added)

  1. [276]
    It does not appear that Mrs Bond's case theory was ever plainly put to Ms Arnold-Nagas. Nor does it appear that the theory around relationship discrimination was ever put during cross examination of Ms Arnold-Nagas.
  1. [277]
    In any event, to whatever extent it might have been put but is obscured in the questions put to her, it is clear from her evidence summarised above that Ms Arnold-Nagas has formed an independent view about the deficit in the qualities of Mrs Bond. She has been consistent in her views about the lack of sex offence experience since the meeting on 7 April 2014. She has been clear that this was an important distinguishing factor for the successful employee.
  1. [278]
    Having had the opportunity to observe Ms Arnold-Nagas I accept her as a reliable witness. I accept her evidence as truthful and complete. It does not appear on that evidence that Ms Thomas played a pivotal role in the decision. In those circumstances, even if I were to find that Ms Thomas attempted to improperly influence the decision of Ms Arnold-Nagas for proscribed reasons (which I do not) I would conclude that Ms Arnold-Nagas independently made her decision for entirely legitimate reasons.
  1. [279]
    For completeness, it is important to note that the appointment of a staff member to act for a brief period in Ms Thomas' role was not the subject of a formal recruitment process. If Ms Arnold-Nagas or Ms Thomas had desired to deliberately exclude Mrs Bond from the acting role they could have simply made an appointment without inviting expressions of interest. Instead, they approached the task in an overly equitable way to give everyone (including Mrs Bond) a chance to be considered. In my view, their approach in this regard entirely dispels any theory of proscribed motives. 
  1. [280]
    Finally, to the extent that the process undertaken to appoint an employee might have been accompanied by any unfairness, I am satisfied that it was not a product of any proscribed conduct.
  1. [281]
    This claim against the Department fails.

The Department victimised Robyn by failing to investigate her allegations of discrimination and bullying.

  1. [282]
    Mrs Bond particularises this allegation in her submissions:[117]

The Department violated workplace health and safety laws and protocols by refusing to investigate Robyn's allegation that workplace bullying and discrimination caused her to suffer a mental injury.

  1. [283]
    Following Mrs Bond's departure on 14 April 2014, Mr Bond also alleged a psychological injury and ceased work on 11 May 2014. In the aftermath of their departure, Mr Bond took on a role as advocate for both himself and Mrs Bond. On 12 May 2014, Mr Bond emailed Ms Arnold-Nagas and inter alia sought an 'open and transparent' investigation into complaints by both him and Mrs Bond regarding the alleged conduct of Ms Thomas.[118]
  2. [284]
    Mrs Bond's submissions in support of the claim that the Department 'refused' to investigate her complaints are spread across many pages in which she seeks to draw together threads of emails and speculative responses given by Mr Harvey to, in some way, prove the claim. But the one fundamental problem with Mrs Bond's claim that the Department 'refused' to investigate her complaint is that it is quite obviously wrong.
  1. [285]
    In response to Mr Bond's email to Ms Arnold-Nagas on 12 May 2014, Ms Arnold-Nagas replied on 16 May 2014.[119] In that email Ms Arnold-Nagas advised Mr Bond as follows:

…I have consulted with Ethical Standards in relation to this matter, and they have advised that they do not consider that the information you have provided would constitute either misconduct or official misconduct. It is therefore an employee complaint and we will seek a local resolution to the issues.

  1. [286]
    The email from Ms Arnold-Nagas goes on to describe the preliminary investigations that she is going to conduct. It concludes with advising Mr Bond of a meeting to 'commence working our way through these issues'. That meeting took place and Ms Arnold-Nagas made a file note recording the discussion.[120]
  1. [287]
    On 3 June 2014, Ms Arnold Nagas emailed Mr Bond with the outcome of the investigation she had conducted.[121]
  1. [288]
    During cross examination of Ms Arnold-Nagas, she was questioned about the extent of her investigation, but it was never put to her that she (or anyone) had 'refused' to investigate the complaints of Mrs Bond. Again, to the extent that such a proposition might have been but was obscured in the questions put, there was no response given by Ms Arnold-Nagas that would give rise to a conclusion that she (or anyone) had 'refused' to investigate Mrs Bond's complaints.
  1. [289]
    Further, and more importantly, even if the evidence did rise to the level of establishing such a refusal there is no evidence that what occurred (or did not occur) was because Mrs Bond or Mr Bond had made complaints under the AD Act.
  1. [290]
    Plainly, Mrs Bond did not get the style or scope of investigation sought by Mr Bond in his email of 12 May 2014. It may even be the case that the response of the Department was inadequate. But these things do not equate to a refusal to investigate, and they most certainly do not indicate the alleged proscribed conduct. 
  1. [291]
    In the circumstances, this claim must fail.

Conclusion

  1. [292]
    For all of the above reasons, Mrs Bond's complaint must be dismissed in its entirety. An overwhelming feature attending each of the conclusions above is the absence of evidence to support each claim.
  1. [293]
    Since 2014, Mrs Bond and her husband Mr Bond have been on an odyssey through the Queensland legal system. Between them they have started multiple legal proceedings in at least three different courts or tribunals. This matter is the latest in the consistently unsuccessful efforts to address, and address again, the grievances they have with Ms Thomas, her colleagues, and the State of Queensland.[122]
  1. [294]
    The degree of fervour with which Mr Bond and Mrs Bond hold to their belief that Mrs Bond has been wronged was well and truly on display throughout the proceedings and in the written submission. But it must be said that no matter how many volumes of emails are produced, and no matter how extensively and vividly Mrs Bond might describe her conspiracy theories in her written submissions, none of that gives rise to proof of proscribed conduct by any respondent in these proceedings, or at all.
  1. [295]
    On the contrary. It was my very clear impression that, from as early as November 2011, both Mr and Mrs Bond took exception to the actions of Ms Thomas for reasons that were misconceived. Having had careful objective regard to those actions of Ms Thomas it is beyond doubt that they were not motivated by any discriminatory intent. But there can equally be no doubt that that is how Mr and Mrs Bond perceived those actions. It is quite incredible to think that from that simple point of dispute, arising from that mistaken perception, there has been spawned so many failed legal proceedings and so much personal and professional destruction extending over what is now close to a decade.
  1. [296]
    Having had regard to the manner in which Mrs Bond was treated at each stage of the process, from the time she departed work in April 2014 until her dismissal in February 2017, it is plainly obvious that she was dealt with in accordance with proper procedure and more importantly, with fairness. Indeed, her conduct in the period post-IME might well have been its own trigger for a disciplinary process but, in my view, Mr Harvey displayed extraordinary patience and sensitivity to Mrs Bond. His accommodation of what he might reasonably have expected  to be her optimum outcome is a testament to the extent to which he was trying to facilitate her return to work.
  1. [297]
    Further, the disciplinary process was nothing but fair from the outset. There can be no reasonable suggestion that the outcome was predetermined.  Even if there had been some scheme (which there was not) there would have been no need to implement it because Mr Bond's response letters, that were endorsed by Mrs Bond, were more than ample reason to consider the relationship was no longer viable.
  1. [298]
    The subsequent complaints about the refusal to investigate were blatantly wrong but, even if there was some under-reaction, oversight or even error by the Department, there was no evidence that it was for any proscribed reason.
  1. [299]
    Mrs Bond has without doubt experienced mental health issues as a consequence of her interactions with the respondents between 2011 and 2014. But nothing about her condition is attributable to proscribed actions of the respondents. There have been no contraventions of the AD Act as alleged or at all.

Orders

  1. [300]
    In consequence of the above findings I make the following orders:
  1. The complaint is dismissed in its entirety.
  1. Any application for costs should be made within 21 days of the date of this decision.  

Footnotes

[1] Exhibit 1.

[2] An offer to provide those records was made in the context of an unfair dismissal conciliation conference in November 2016.

[3] That application did not progress beyond conciliation and eventually went into abeyance and lapsed.

[4] T 10-36, ll 35-45.

[5] Complainant’s post-hearing submissions at page 4.

[6] See Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92-108. Cf Waterhouse v Bell [1991] 25 NSWLR 99, NSWCA.

[7] [1996] QADR 251 at [141]-[142].

[8] [2008] QADT 7 at [76]-[77].

[9] Anti-Discrimination Act 1991 (Qld) sch 1 definition of ‘relationship status’.

[10] SOFC at page 13.

[11] Anti-Discrimination Act 1991 (Qld) s 10.

[12] [2007] QADT 17.

[13] Ibid at [37]-[49].

[14] See TT v Lutheran Church of Australia Queensland District [2013] QCAT 48 at [108]-[110]; Bero v Wilmar Sugar Pty Ltd & Ors [2016] QCAT 371 at [150]-[153]; Phillips v Baptist Union of Queensland [2019] QIRC 124 at [15].

[15] See for example Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500 at [104].

[16] Complainant’s post-hearing submissions at page 9-10.

[17] [2019] QIRC 059 at [80].

[18] [2000] NSWADTAP 5 at [41]-[45].

[19] See the analogous reasoning in Board of Bendigo Regional Institute of Technical and Further Education v Barclay [2012] HCA 32; (2012) 248 CLR 500, and Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243 at [249].

[20] T 4-111 to 4-112.

[21] See for example SOFC at paragraph 16(c), (e) and paragraph 20. 

[22] A total of 151 documents were exhibited though as it transpires, some of these are duplicated. 

[23] Notably, Mr Sean Harvey. At the close of proceedings, it was made clear by Mr Bond that discontinuance against Mr Harvey did not extend to vicarious liability of the State of Queensland in respect of his conduct.

[24] SOFC paragraph 54.

[25] See for example SOFC at paragraph 16.

[26] Predominantly at paragraph 16 of the SOFC.

[27] See for example SOFC at paragraph 16(c), (e), and paragraph (20).

[28] Compare TN 2-79 and TN 3-43.

[29] (1959) 101 CLR 298 at 320.

[30] Apparently, Ms Karen La Vin and Mr Richard Bojack were present on separate occasions when Ms Thomas allegedly berated Mrs Bond.

[31] Exhibit 1.

[32] Exhibit 111 at page 4.

[33] T 6-17, ll 20-45, T 6-72 to 6-73.

[34] Exhibit 98.

[35] See paragraph 16 of Mrs Bond’s SOFC.

[36] T 6-5, ll 1-20; T 6-38.

[37] Exhibit 97 (see also Exhibit 103).

[38] T 8-7, ll 1-5.

[39] T 6-78 to 6-79; T 8-26, ll 40-45

[40] T 8-31 to T 8-34.

[41] T 8-32, ll 1-20.

[42] Exhibit 97.

[43] See matters listed at paragraph 16(a)-(i) of the ASOFC and the matters listed at paragraph 64 of the Respondents submissions filed 15 March 2021. 

[44] Respondent’s submissions filed 15/3/21, paragraphs 65-114.

[45] There is no clear reference in the evidence as to when Ms Thomas first gave her statement in response to the workers’ compensation allegations. Exhibit 111 (Ms Thomas’ responses) appears to carry a date stamp of May 2015, but it is unclear if this relates to the date the document was printed or e.g. released through RTI. Little turns on it, though it is safest to assume the responses were given sometime between May 2014 and May 2015.  

[46] Exhibit 111.

[47] Complainant’s post-hearing submissions at page 91-94.

[48] The ‘lie’ is the extent to which Mr Bond had his shirt removed i.e. completely or pulled up to expose his back and shoulders.

[49] Complainant’s post-hearing submissions at page 91.

[50] Exhibit 111.

[51] T 6-17, ll 20-35.

[52] T 6-70 to T 6-75. Mr Bond was putting submissions contained in the Workers’ Compensation Regulator’s documents from an earlier workers’ compensation review appeal to Ms Thomas as if those submissions were her statements.

[53] T 6-50.

[54] Exhibit 97.

[55] Exhibit 92, attachment 11 – report of Dr Mohamed Milad.

[56] Exhibit 92, attachment 11, page 21, first paragraph.

[57] Exhibit 92, attachment 11, page 21, second last paragraph.

[58] Exhibit 92, attachment 11, page 23.

[59] Mrs Bond eventually offered (at the unfair dismissal conciliation conference on 14 November 2016) to produce the requested records but it would seem that by that time the process being undertaken by Mr Harvey had already progressed in October 2016 towards returning Mrs Bond to the workplace.  

[60] Exhibit 92, attachment 16.

[61] Exhibit 64.

[62] As an aside, one report was that of Dr Milad dated April 2016 discussed above. The other was a report from Mrs Bond’s treating psychiatrist to QSuper that, while saying Mrs Bond was fit to return to work, made reference to the recent presence of some serious medical issues and also expressed concerns about Mrs Bond’s reliability as an historian (see Exhibit 58).  

[63] Exhibit 92, attachment 17.

[64] Exhibit 92, attachment 18.

[65] Exhibit 92, attachment 19

[66] See Exhibit 143.

[67] Exhibit 91.

[68] Exhibits 94 and 95.

[69] T 2-79 and T 3-43.

[70] T 2-79 to T 2-80.

[71] T 3-43.

[72] Complainant’s post-hearing submissions pages 4-5.

[73] Exhibit 92.

[74] Exhibit 95.

[75] Exhibit 95.

[76] Exhibit 93.

[77] Exhibit 94.

[78] See for example the last paragraph of page 4 of Exhibit 94.

[79] Exhibit 96 pages 11 to 14.

[80] T 9-80, ll 1-5.

[81] Public Service Act 2008 (Qld) s 188(1).

[82] Exhibit 96.

[83] T 9-85, ll 40-45; T 9-86, ll 1-4.

[84] Exhibit 92, attachment 11, page 21, paragraph 6. 

[85] See the full list at pages 11 – 12 of Exhibit 96.

[86] Exhibit 95, page 3, last paragraph.

[87] Wadsworth v Akers and Woolworths Ltd trading as Big W Discount Stores [2007] QADT 17.

[88] T 9-90 to T 9-91.

[89] Exhibit 93.

[90] It is noted that this claim bore no resemblance to the claim particularised in the SOFC.

[91] Exhibit 96.

[92] Complainant’s post-hearing submission at page 47

[93] T 9-88.

[94] Complainant’s post-hearing submissions at page 49.

[95] T 9-87, ll 25-30.

[96]Anti-Discrimination Act 1991 (Qld) s 133(1).

[97] Complainant’s post-hearing submissions at page 20.

[98] Exhibit 143.

[99] T 9-13, ll 15-20; T 9-17, ll 15-20; T 9-18, ll 11-25; T 9-20, ll 25; T 9-24, ll 5-15.

[100] Complainant’s post-hearing submissions at page 20.

[101] T 3-34.

[102] Industrial Relations Act 2016 (Qld) s 531.

[103] T 3-30, ll 1-5.

[104] Complainant’s post-hearing submissions pages 21-45.

[105] T 9-103.

[106] T 10-27, ll 25-40.

[107] Exhibit 92, attachment 16.

[108] Exhibit 92, attachment 16 at page 5.

[109] Complainant’s post-hearing submissions at page 108.

[110] Exhibit 6.

[111] Exhibit 7.

[112] Exhibit 11.

[113] Exhibit 125.

[114] T 7-62; ll 35-45.

[115] Exhibit 124.

[116] T 7-97; ll 30-45.

[117] Complainant’s post-hearing submissions at page 115.

[118] Exhibit 130.

[119] Exhibit 131.

[120] Exhibit 133.

[121] Exhibit 132.

[122] Mr Bond did achieve a moderate settlement in one proceeding without admission of liability by the State of Queensland, and on the condition that he discontinue numerous other actions (see Exhibit 80).

Close

Editorial Notes

  • Published Case Name:

    Bond v State of Queensland (Department of Justice and Attorney-General) & Ors

  • Shortened Case Name:

    Bond v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2023] QIRC 148

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    26 May 2023

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
Bero v Wilmar Sugar Pty. Ltd. [2016] QCAT 371
2 citations
Jump To
Cite 1 - [2016] QCAT 371
Cite 2 - [2016] QCAT 371
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
3 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
Cite 3 - (2012) 248 CLR 500
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) HCA 32
3 citations
Jump To
Cite 1 - (2012) HCA 32
Cite 2 - (2012) HCA 32
Cite 3 - (2012) HCA 32
Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 92
1 citation
Jump To
Cite 1 - (1984) EOC 92
Boehringer Ingelheim Pty Ltd v Reddrop (1984) EOC 9 2-108
1 citation
Jump To
Cite 1 - (1984) EOC 9 2-108
Commissioner of Corrective Services v Aldridge [2000] NSWADTAP 5
2 citations
Jump To
Cite 1 - [2000] NSWADTAP 5
Cite 2 - [2000] NSWADTAP 5
Construction, Forestry, Mining and Energy Union v BHP Coal Pty Ltd (2014) 253 CLR 243
2 citations
Jump To
Cite 1 - (2014) 253 CLR 243
Cite 2 - (2014) 253 CLR 243
Curran v yourtown & Anor [2019] QIRC 59
2 citations
Jump To
Cite 1 - [2019] QIRC 59
Cite 2 - [2019] QIRC 59
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Phillips v Baptist Union of Queensland [2019] QIRC 124
2 citations
Jump To
Cite 1 - [2019] QIRC 124
Cite 2 - [2019] QIRC 124
Sherman v Grady [2008] QADT 7
2 citations
Jump To
Cite 1 - [2008] QADT 7
Cite 2 - [2008] QADT 7
TT and Ors v Lutheran Church of Australia Queensland District and Ors [2013] QCAT 48
2 citations
Jump To
Cite 1 - [2013] QCAT 48
Cite 2 - [2013] QCAT 48
Wadsoworth v Akers and Woolworths Ltd trading as Big W Discounts Stores [2007] QADT 17
4 citations
Jump To
Cite 1 - [2007] QADT 17
Cite 2 - [2007] QADT 17
Cite 3 - [2007] QADT 17
Cite 4 - [2007] QADT 17
Waterhouse v Bell (1991) 25 N.S.W.LR. 99
2 citations
Jump To
Cite 1 - (1991) 25 N.S.W.LR. 99
Cite 2 - (1991) 25 N.S.W.LR. 99
Waterhouse v Bell [1996] QADR 251
2 citations
Jump To
Cite 1 - [1996] QADR 251
Cite 2 - [1996] QADR 251

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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