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  4. Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) - [2023] QIRC 167

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Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2023] QIRC 167

Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)[2023] QIRC 167

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167

PARTIES:

Edgar, Lorraine

(Appellant)

v

State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

(Respondent)

CASE NO:

PSA/2022/1009

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

Interlocutory Application – Application for Suppression Order

DELIVERED ON:

6 June 2023

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 6 December 2022 be revoked.
  1. The application for an order prohibiting the publication of this decision, or in the alternative, an order to de-identify the Appellant in these reasons is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – appeal against a fair treatment decision – where some allegations against Appellant substantiated – where Appellant claims the disciplinary finding is unfair and unreasonable – whether the disciplinary finding decision was fair and reasonable – decision fair and reasonable – decision confirmed – stay of decision revoked

EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – application in existing proceedings for suppression order – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress identifying information – application for suppression order dismissed

LEGISLATION:

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

Industrial Relations (Tribunals) Rules 2011 (Qld), r 97

Public Sector Act 2022 (Qld), s 91, s 92 and s 188

Discipline Directive 05/23, cl 8 and cl 9

CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10

Reasons for Decision

Introduction

  1. [1]
    Ms Lorraine Edgar is employed by the State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) ('the Department') as a Youth Worker at the Toowoomba and South West Youth Justice Centre.
  1. [2]
    In June 2021, the Professional Standards Unit ('PSU') commenced an investigation into two allegations of inappropriate workplace behaviour by Ms Edgar.
  1. [3]
    On 9 December 2021, during the course of the investigation, the PSU investigator interviewed Ms Edgar.
  1. [4]
    On 28 March 2022, the PSU finalised an investigation report which concluded that one of the two allegations were capable of being substantiated.
  1. [5]
    By letter dated 23 August 2022, Ms Edgar was asked to show cause with respect to the following allegation about her conduct and behaviour:
  1. Between 23 May 2021 and 5 June 2021, Ms Edgar engaged in inappropriate or improper conduct towards her colleague [the complainant], including:
  1. (a)
    Touching her on the arm;
  2. (b)
    Referring to her as 'bub'; and
  3. (c)
    Touching her on the buttock.
  1. [6]
    On 15 September 2022, Ms Edgar responded to the show cause notice.
  1. [7]
    By letter dated 16 November 2022, the Department issued a decision substantiating allegation 1(a) and allegation 1(c) ('the decision'). The Department informed Ms Edgar that it was giving serious consideration to imposing disciplinary action of transferring Ms Edgar to another Youth Worker role within the Ipswich Youth Justice Service Centre, with up to $5,000 in actual relocation expenses.
  1. [8]
    No decision has yet been made with respect to the imposition of the proposed disciplinary action.
  1. [9]
    On 6 December 2022, Ms Edgar filed a notice of appeal against the decision. Ms Edgar relies on the following grounds in support of her appeal, as set out in the appeal notice:
  1. The outcome letter lacks supporting details as to how the Delegate came to their conclusion that the allegations were capable of substantiation on the balance of probabilities;
  1. The Delegate placed undue weight upon circumstantial evidence that provides no independent verification; and
  1. The Delegate has relied upon evidence provided by Ms Fiona Serensen, A/Manager, TSWYJSC, which does not demonstrate impartiality and is prejudicial.
  1. [10]
    This Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
  1. [11]
    The appeal is made pursuant to s 134 of the Public Sector Act 2022 (Qld) ('PS Act') which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  2. [12]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [13]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it takes its meaning from the context in which it appears.[1] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[2]
  1. [14]
    During the course of the appeal, Ms Edgar filed an application in existing proceedings, it is convenient to deal with the application at first instance before I consider the substance of the appeal.

Application for suppression order

  1. [15]
    On 22 February 2023, Ms Edgar filed an application seeking an order that prohibits the Commission from publishing the decision on the Supreme Court Library website, or, in the alternative, an order that prohibits the Commission from publishing Ms Edgar's name and the names of Departmental staff who were mentioned in the appeal submissions by replacing the names with a pseudonym. The application lists the names of the employees, which includes the complainant, that Ms Edgar seeks to be covered by the orders.
  1. [16]
    Directions were issued requiring the parties to provide written submissions with respect to Ms Edgar's application for a suppression order.
  1. [17]
    Both parties complied with the directions order.
  1. [18]
    The Department opposes the orders sought in the application.
  1. [19]
    As the Appellant, Ms Edgar bears the onus of demonstrating that circumstances exist which would justify the making of the proposed suppression order.

Relevant legislation and authorities

  1. [20]
    Section 451 of the IR Act bestows general powers on the commission, and relevantly provides:

451General powers

  1. (1)
    The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. (2)
    Without limiting subsection (1), the commission in proceedings may—

…

  1. (c)
    make an order it considers appropriate.
  1. [21]
    Section 580 of the IR Act provides for the directions the commission may give in respect of confidential material and is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

  1. (5)
    The court, commission or registrar may direct—
  1. (a)
    a report, or part of a report, of proceedings in an industrial cause not be published; or
  2. (b)
    evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

  1. (7)
    The direction may be given if the court, commission or registrar considers —
  1. (a)
    disclosure of the matter would not be in the public interest; or
  2. (b)
    persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

…

  1. [22]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

  1. (1)
    The registrar may publish on the QIRC website –
  1. (a)
    a decision of the court, commission, or registrar; and
  2. (b)
    the notice of the making or the amended of a bargaining instrument
  1. (2)
    The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

  1. (3)
    The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. (a)
    withhold publication of a document; or
  2. (b)
    modify a document, before publication, in a way that does not affect the essence of the document.

…

  1. [23]
    The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[3] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  1. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  1. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. (a)
    Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
  1. (b)
    A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. (c)
    An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
  1. [24]
    In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[4] ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
  1. [40]
    The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’. This is a central feature of the administration of justice under the common law.
  2. [41]
    The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
  3. [42]
    However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
  1. [43]
    The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so.  Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.

…

  1. [44]
    It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
  1. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
  1. [46]
    As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'. (citations omitted)
  1. [25]
    Ms Edgar challenges the Department's reliance on the evidence provided in a number of witness statements and submits that the evidence was ''inappropriately gained''.  In her submissions, Ms Edgar refers to various passages from Aurizon and contends that in this appeal, ''similarities exist to those contemplated by VP O'Connor'' which would support the application. Ms Edgar submits that evidence obtained from one witness is a breach of confidentiality and evidence obtained from a file note created by another witness ''could be viewed as discriminatory''. Ms Edgar also submits that the witnesses may be unaware that the proceedings are occurring and ''deserve a measure of protection'' that can be provided by an order suppressing the witnesses' names.
  1. [26]
    Ms Edgar contends that private and personal matters[5] regarding her were referenced during the investigation, discipline process and throughout the appeal. In her submissions, Ms Edgar submits that she did not openly share details of this nature and contends that the Department considered such matters as evidence to support the disciplinary finding. Ms Edgar notes in her submissions that by making the application, Ms Edgar does ''not seek to remove the ability for open justice to occur'', however, expresses a view that open justice does not ''suggest'' that she be identified in the decision.
  1. [27]
    The Department opposes Ms Edgar's application that the decision be prohibited from publication on the Supreme Court Library website or alternatively, that a pseudonym be used for Ms Edgar. The Department provides the following in support of its position as follows:
  1. There is a general presumption of public interest in matters before the Commission, and that the administration of justice is done openly and transparently;
  2. There is a public interest to know if either party within this matter have behaved inappropriately, including prospective employers;
  3. Ms Edgar does not particularise how de-identifying her name would aid in the administration of justice;
  4. Ms Edgar is not a class of persons who ought to have her identity suppressed.

…

  1. [28]
    In its submissions, the Department submits that Aurizon supports the use of a pseudonym for the complainant in this matter, however, it does not take a position with respect to the use of a pseudonym for the witnesses in this matter.
  1. [29]
    It may be appropriate to de-identify witnesses in a proceeding in certain limited circumstances. However, having regard to the subject matter of this appeal, together with the evidence of the witnesses, I do not consider that the relevant circumstances exist in this matter.
  1. [30]
    The Department submits that it did not rely upon Ms Edgar's private and personal matters in substantiating the conduct. Further, the Department contends that the use of a pseudonym to protect Ms Edgar ''from embarrassment or stress'' is not a ''valid reason to limit open justice''.
  1. [31]
    Firstly, I consider that it is not necessary for these reasons to particularise the private and personal matters Ms Edgar relies on in this application. Secondly, I am satisfied that it is not necessary, in providing reasons for the decision with respect to the appeal, for Ms Edgar's private and personal matters to be particularised. Further, it is my practice, where possible and appropriate to do so, to limit the identifying details of a complainant in a public sector appeal. I consider it is appropriate to not name the complainant by name in these reasons.
  1. [32]
    Having regard to these matters, I do not consider that this appeal is one which supports a finding that the publication of the decision or de-identification of the Appellant is warranted.
  1. [33]
    I am satisfied that Ms Edgar is not a class of person whose identity should be suppressed. Ms Edgar is an employee who has had a disciplinary finding made against her and she has chosen to exercise her right to appeal that decision before this Commission. I am satisfied that these reasons for decision are not ones which should be subject to a prohibition order.
  1. [34]
    Further, I am not satisfied that the circumstances of this case justifies the disturbance of the open justice principle. Accordingly, I dismiss the application filed on 22 February 2023.

The decision subject of the appeal

  1. [35]
    The decision maker provided the following reasons in support of the decision to substantiate allegation 1(a) and allegation 1(c).

I refer to my correspondence dated 23 August 2022 in which you were asked to show cause as to why a disciplinary finding should not be made against you under the Public Service Act 2008 (PS Act) in relation to the following allegation:

Allegation one

Between 23 May 2021 and 5 June 2021, you engaged in inappropriate or improper conduct towards your colleague [the complainant], Including:

  1. a)
    Touching her on the arm
  1. b)
    Referring to her as 'bub'; and
  1. c)
    Touching her on the buttock.

In my corresponded (sic) dated 23 August 2022, you were afforded a period of 14 days from date of receipt of my correspondence to respond. You received this correspondence on 25 August 2022. On 7 September 2022, Ms Shannon Ellis, from Together Queensland wrote to me on your behalf seeking a further seven days to respond to the show cause notice. You were provided a total of 21 days from the date of your receipt of that letter to provide a response to the allegations.

I acknowledge receipt of your response dated 15 September 2022.

I have reached my own conclusions independently regarding the allegations. I have fully and carefully considered all of the information available to me including your Response. I have taken into account all of the matters raised in your Response. The fact that a particular matter is not specifically addressed in this letter does not mean that I did not carefully consider it.

Response to allegations

I note that you make the following general submissions in your Response:

  • "The allegations and the decision to suspend [you] have been devastating to [you] and significantly impacted your mental health. "
  • While the Department advises through my Union that the allegations have not arisen because [redaction of personal and private matters].

In your response you make the following submissions in relation to sub-allegation one (a):

  • You advise "This alleged action did not occur and [you] did not touch, rub or pat.. .. on the left arm, shoulder or wrist";
  • You state the "Vehicle is large and front seats are quite spacious";
  • Further, there is a "large console between the drivers and the passenger seat";
  • You advise you are of "small stature" and would have to "lean over into her direction to touch her as suggested';
  • You also advise you had a were "wearing a brace on [your] right hand to support [your] wrist' and you "did not move it around much".

In your response you make the following submissions in relation to sub-allegation one (b):

  • You advise you referred to [the complainant] as "Bud" not "Bub";
  • You state you "call people Bud or Matey due to living rural and remove [sic]";
  • You advise this "is a case of misunderstanding and miscommunication as [you] do not call people Bub, only Bud";
  • You state you were "horrified to think that [the complainant] thought [you were] referring to her as Bub and more so that it made her uncomfortable";

In your response you make the following submissions in relation to sub-allegation one (c):

  • You state, "[you] again deny this incident occurred' and "[you] do not touch other people inappropriately [sic] the workplace;
  • You advise it is your usual "action", when you arrive at work, is to go "to [your] desk and commence [your] workday".
  • You advise "given the passage of time [you] struggle to recall what occurred" although you further state you are "confident that at no point did [you] touch [the complainant] on the buttocks";

My findings

Allegation one

Between 23 May 2021 and 5 June 2021, you engaged in inappropriate or improper conduct towards your colleague ["the complainant"], Including:

  1. a)
    Touching her on the arm
  2. b)
    Referring to her as 'bub'; and
  3. c)
    Touching her on the buttock.

I have carefully considered all the material before me, including your response, and make the following determinations, on the balance of probabilities:

  • Sub allegation 1 (a) — substantiated
  • Sub allegation I(b) — not substantiated
  • Sub allegation I(c) — substantiated

I make the above determinations on the following basis:

  • You are employed as a Youth Worker at the Toowoomba and South West Youth Justice Service Centre (TSWYJSC). [The complainant] is also an employee of the TSWYJSC.

Specifically in relation to sub-allegation one (a):

  • I note your admission that you were travelling in the vehicle with [the complainant] as described.   I note your denial of the allegation and your statement that you were not moving around vehicles much due to a knee injury and the fact you were wearing a wrist brace at the time.   You and [the complainant] were both working at the TSWYJSC on 24 May 2022, when the conduct alleged is said to have occurred.
  • Vehicle management records confirm [the complainant] had the vehicle checked out on 24 May 2022 and ICMS records indicate you and [the complainant] worked together on that date.   [The complainant] had contemporaneous discussions about her concerns about your conduct towards her with Ms Patrice Johansen, Program Coordinator, TSWYJSC, on 17 May 2021 and
  • 17 June 2021, with the specific concern about the uninvited touching within the vehicle discussed on 17 June 2021 (refer to pages 53-64 of the investigation report which details Ms Johansen's interview). Ms Johansen described the incident as you 'patting' [the complainant] on the shoulder a couple of times. She said [the complainant] initially didn't think much of it, however had moved her arm away from you and looked at you a certain way in the vehicle, at which time you said you were sorry and that you are a 'touchy-feely person' (refer to page 31 of the investigation report). Ms Johansen encouraged [the complainant] to report the incident however, [the complainant] said she didn't want to be a problem for anyone.
  • Whilst I acknowledge your denial of the allegation, however in consideration of [the complainant] detailed recollection of events and her contemporaneous report to Ms Johansen, I accept [the complainant's] version of events.
  • In consideration of [the complainant's] recollection of events, in which she described moving her arm away from you more than once and eliciting an apology and explanation that you are simply a 'touchy-feely person' upon her 'looking at you', I am of the view the touching was unwelcome and uninvited.
  • Given this was one of the first occasions on which you had worked together, I consider there to be no ulterior motive to [the complainant] raising her concern about your conduct.

Specifically in relation to sub-allegation one (b):

  • I accept your explanation that the language 'bud' and 'bub' is similar and may be misconstrued, particularly in the context of being a rural colloquialism for 'buddy' and the term being gender diverse.

Specifically in relation to sub-allegation one (c):

  • You and [the complainant] were both working at the TSWYJSC on 4 June 2021.
  • You deny this allegation and again state you did not move your hand around much as your wrist was in a brace.
  • [the complainant] described the touching of her right buttock as 'absolutely not' consensual, she stated she immediately turned around and told you not to touch her, and that you looked 'shocked' following the incident. [The complainant] said Mr David Sherman, Operational Practice Leader, TSWYJSC, was the first person she ran into around the corner and immediately told him about the incident (refer to pages 26-48 of the investigation report which details [the complainant's] interview).
  • Evidence supports that [the complainant] made a contemporaneous disclosure of the incident to Mr Sherman on 4 June 2021 (refer to pages 65-66 of the investigation report which includes a file note made by Ms Fiona Serensen, A/Manager, TSWYJSC, upon Mr Sherman escalating his concerns).
  • Mr Sherman's interview includes his recount of [the complainant's] reaction to the incident, including that she was 'angry', 'jittery', 'upset' and 'felt sick' that she had been touched (refer to pages 71-87 of the investigation report which details Mr Sherman's interview). Mr Sherman made a contemporaneous diary note of his interaction with [the complainant] (refer to page 89 of the investigation report).
  • In consideration of [the complainant's] contemporaneous report of the incident to Mr Sherman, and Mr Sherman's subsequent contemporaneous file note and escalation of his concerns to Ms Serensen, in addition to Ms Wagner's observations, I consider the conduct that is alleged did occur, and that it was unwelcome and uninvited.
  • Mr Sherman's observations of [the complainant] immediately following the incident are consistent with the generally expected reaction to such an incident.
  • There is no feasible alternative motive to explain [the complainant] raising this concern regarding your conduct.

On the basis of my finding in relation to Allegation one (a), (b) and (c), I have determined that pursuant to section 187(1)(b) of the PS Act, you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section s 187(4)(a) of the PS Act.

Relevant legislation

  1. [36]
    Section 131 of the PS Act provides for decisions against which appeals may be made as follows:

131  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (d)
    a fair treatment decision.

…

  1. [37]
    Section 91 of the PS Act sets out the grounds for discipline as follows:

91 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. (f)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  1. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of this Act; or
  1. (i)
    this Act, other than section 39 or 40; or
  1. (ii)
    another Act that applies to the employee in relation to the employee’s employment; or
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [38]
    Section 92 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:

92Meaning of disciplinary action

  1. (1)
    Disciplinary action is any action relating to employment, including, for example, any of the following actions—
  1. (a)
    termination of employment;
  1. (b)
    reduction of classification level and a consequential change of duties;
  1. (c)
    transfer or redeployment;
  1. (d)
    forfeiture or deferment of a remuneration increment or increase;
  1. (e)
    reduction of remuneration level;
  1. (f)
    imposition of a monetary penalty;
  1. (g)
    if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments;
  1. (h)
    a reprimand.
  1. (2)
    However, disciplinary action consisting of a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  1. (3)
    Also, disciplinary action consisting of an amount directed to be deducted from a particular periodic remuneration payment of an employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the Queensland minimum wage for each week of the period; or
  1. (ii)
    otherwise—two-thirds of the Queensland minimum wage for each week of the period.
  1. (4)
    In this section—

Queensland minimum wage see the Industrial Relations Act 2016, schedule 5.

  1. [39]
    Directive 14/20: Discipline came into effect on 25 September 2020. Discipline Directive 05/23 ('Directive 05/23') became operative on 1 March 2023 and supersedes Directive 14/20.
  1. [40]
    Clause 9.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
  1. the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
  2. written details of each allegation in clause 9.3(a) must include:
    1. the allegation
    2. the particulars of the facts considered by the chief executive for the allegation
    3. the disciplinary ground under section 91 of the Act that applies to the allegation
  3. when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation.
  4. a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  5. the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  6. if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.  
  1. [41]
    Clause 9.4 of the Discipline Directive provides for a decision on grounds as follows:
  1. the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  2. the chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
  3. for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  4. the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals.
  5. if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation.
  6. if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
  1. [42]
    Clause 9.5(d) of the Directive 05/23 sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee’s explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee’s ability to perform the duties of their position
  1. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Whether the decision was fair and reasonable

  1. [43]
    In this appeal, I must determine whether the decision to substantiate allegations 1(a) and 1(c) was fair and reasonable.
  1. [44]
    Ms Edgar's submissions in relation to the appeal have been categorised as follows:
  1. (a)
    lack of supporting evidence to substantiate allegations ('Ground one');
  1. (b)
    undue weight placed upon circumstantial evidence ('Ground two'); and
  1. (c)
    lack of impartiality ('Ground three').
  1. [45]
    I will determine the appeal on the grounds referred to above.

Ground one

  1. [46]
    Ms Edgar relies on her contention that the Department lacked supporting evidence to substantiate the allegations as a ground to argue that the decision was not fair or reasonable. In particular, Ms Edgar submits that the decision maker did not provide an explanation as to why they preferred the complainant's version of events over her version of events.
  1. [47]
    Ms Edgar submits that the complainant's contemporaneous disclosure of the complaint to her line manager does not make the complainant's version of events more credible nor does the timeframe of the complainant's disclosure provide more veracity to the allegations. Ms Edgar further submits that the decision maker should not rely on the absence of prior working history between herself and the complainant to conclude that the complainant had no ulterior motive to raise her concerns about Ms Edgar's conduct.
  1. [48]
    In its reply submissions, the Department submits that it was reasonable and appropriate for the decision maker to consider whether there was evidence to confirm the veracity of the allegations and the context in which the allegations arose. The Department submits that the decision maker's preference for the complainant's evidence was based on the contemporaneous nature of the disclosures made by the complainant and the complainant's hesitancy to report the incident. Further, the Department submits that regard was also had to the fact that the incident occurred on one of the first occasions on which Ms Edgar had worked with the complainant and that there was no evidence to establish that the complainant had an ulterior motive. In its submissions, the Department notes that Ms Edgar has not provided any evidence to support that the complainant had an ulterior motive to raise concerns about Ms Edgar's conduct, nor does Ms Edgar contend that the complainant ''fabricated all the allegations against her''.
  1. [49]
    In her reply submissions, Ms Edgar submits that during the show cause process, her role was to respond to the allegations and provide her recollection of the events, not to ''undertake an investigative process'' or to ''theorise as to why [the complainant] has made the allegations''.
  1. [50]
    I am satisfied that the decision maker embarked on a process of considering and analysing the evidence gathered during the investigation process. That evidence included the context within which the allegations were made including that the complainant, although making contemporaneous complaints, was initially reluctant to make a complaint. I consider that the approach taken by the decision maker was appropriate and further that it was appropriate to consider the evidence gathered with respect to the context in which the complaint was made. Such a consideration includes consideration of the prior working history (or lack of) between the complainant and Ms Edgar.
  1. [51]
    Further, the actions of the complainant, including that the complainant made contemporaneous reports of the incident, was evidence before the decision maker and it was appropriate to have regard to such evidence. It was open on that evidence to conclude that the contemporaneous reports corroborated the complainant's complaint and formed a reasonable basis to accept the complainant's version of events.
  1. [52]
    In her submissions, Ms Edgar also notes that the decision maker ''dismissed'' Ms Edgar's wrist brace and failed to have regard to whether she was physically capable of allegation 1(a).
  1. [53]
    I do not consider that the decision maker ''dismissed'' Ms Edgar's evidence with respect to the wrist brace. Indeed, the fact that Ms Edgar was wearing a wrist brace was referred to by the decision maker in the reasons for decision. However, that fact does not necessarily, without any further evidence, preclude the incident as alleged from occurring. The decision maker accepted the complainant's evidence with respect to the incident which was corroborated by her contemporaneous complaints of the incident.
  1. [54]
    I do not consider that Ms Edgar's submissions that the Department was aware that she has an accepted WorkCover claim for her wrist injury and that she was on a ''Gradual Return Work Plan'' and presumably should have formed a view that Ms Edgar was not physically capable of engaging in the alleged conduct in allegation 1(a) to be persuasive.
  1. [55]
    As noted by the Department in its further written submissions in reply, s 572A of the Workers' Compensation and Rehabilitation Act 2003 (Qld) prohibits the Department from using documents related to Ms Edgar's workers' compensation claim for matters relating to her employment with the Department. In these circumstances, the Department submits that the only information available to the decision maker was the submissions provided by Ms Edgar during the show cause process.
  1. [56]
    In this regard, the obligation fell on Ms Edgar to produce evidence that she wished to rely on and that was in her control regarding the extent of her injury and any potential relevant effect that injury had with respect to the alleged conduct in the complaint. Ms Edgar did not do so.
  1. [57]
    Ground one does not establish that the decision was not fair or reasonable.

Ground two

  1. [58]
    Ms Edgar submits that the Department's reliance on circumstantial evidence supports a finding that the decision was not fair or reasonable. Ms Edgar submits that the decision maker ''placed undue weight'' on the evidence provided by Ms Wagner.
  1. [59]
    Ms Edgar contends that Ms Wagner's evidence ''did not include any information arising from a direct interaction with the complainant'' and therefore was ''inappropriate to consider''. In her submissions, Ms Edgar expresses a view that Ms Wagner's evidence is ''no more than workplace gossip, and/or disclosure of a confidential matter to another with no authority to release such information''. In support of this, Ms Edgar further submits that Ms Wagner's comments regarding the complainant's shift in behaviour around Ms Edgar were only based on the information provided by Mr Sherman. Ms Edgar submits that to rely on such evidence to substantiate allegation 1(c) is ''demonstrative of a fatal flaw''.
  1. [60]
    In its reply submissions, the Department submits that in circumstances where Ms Edgar denied the alleged conduct with respect to allegation 1(c), it was appropriate and reasonable for the decision maker to consider the context in which the allegation was reported and whether there was evidence to confirm the veracity of the allegation. The Department contends that the decision maker had regard to Ms Wagner's evidence as to her observations of the complainant's demeanour and behaviour on and after the date of the incident. The Department rejects Ms Edgar's assertion that the decision maker should have disregarded Ms Wagner's evidence and submits that ''the mere fact that Ms Wagner was aware of the alleged incident does not, in and of itself, make her observations of [the complainant's] behaviour unreliable''.
  1. [61]
    I consider that Ms Wagner's opinion evidence with respect to what she says she observed with respect to the complainant's demeanour in the workplace before and after the alleged incidents to be of limited relevance and consequently limited weight should be placed on the consideration of that evidence. However, I do not consider that such a finding ''fatally'' disturbs the substantiation of the allegation because I am satisfied that the decision maker had regard to a body of evidence, that even without Ms Wagner's evidence, provides a sound basis to support a finding that the allegation was substantiated. Relevantly, in this regard, I note that the decision maker referred to that body of evidence as follows:
  • In consideration of [the complainant's] contemporaneous report of the incident to Mr Sherman, and Mr Sherman's subsequent contemporaneous file note and escalation of his concerns to Ms Serensen, in addition to Ms Wagner's observations, I consider the conduct that is alleged did occur, and that it was unwelcome and uninvited.
  1. [62]
    I am satisfied that even with a limited consideration of Ms Wagner's evidence that there is a reasonable factual basis to support a substantiation of the allegation.
  1. [63]
    For these reasons, I consider that ground two does not establish that the decision was not fair or reasonable.

Ground three

  1. [64]
    Ms Edgar submits that the decision maker ''considered material which lacks impartiality and demonstrates significant prejudice'' because it relied on a file note created by Ms Serensen which records concerns escalated to her by Mr Sherman. Ms Edgar submits that the information provided in the file note was a ''third hand'' account of the alleged incident and the decision maker's reliance on this to substantiate allegation 1(c) was prejudicial to her. 
  1. [65]
    The Department acknowledges that the file note contained a ''third hand'' account of the alleged incident however notes in its submissions that the decision maker did not rely on the file note, or the inferences made by Ms Serenson, to determine whether allegation 1(c) could be substantiated. In its submissions, the Department submits that the decision maker relied on the file note to determine that the complainant made a contemporaneous disclosure of the incident and that the matter had been escalated by Mr Sherman to Ms Serensen.
  1. [66]
    Relevantly, a review of the decision discloses that the decision maker does not refer to any of the inferences Ms Serenson made in her file note in forming the view that the allegation was substantiated. [6] Consequently, I am satisfied that the decision maker did not have regard to or rely on the file note for the truth of the inferences drawn by Ms Serensen. As noted above, the evidence the decision maker relied on included the evidence that the complainant had made the complaint to Mr Sherman who subsequently made a file note and then escalated his concern about the complaint to Ms Serensen. The contents of Ms Serenson's file note that goes beyond confirming Mr Sherman attended on her office to discuss the alleged incident were not referred to in the reasons for the decision.
  1. [67]
    I am satisfied that the Appellant has not established an error in the approach taken by the decision maker with respect to ground three. Further, I do not consider that the Appellant has discharged the onus that rests on her to establish that the decision was not fair or reasonable.

Order

  1. [68]
    Accordingly, I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 6 December 2022 be revoked.
  1. The application for an order prohibiting the publication of this decision, or in the alternative, an order to de-identify the Appellant in these reasons is dismissed.

Footnotes

[1] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[2] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[3] [1993] QCA 012; [1995] 2 Qd R 10.

[4] [2021] QIRC 263 [40] – [46].

[5] I have deliberatively not referred to those matters on the basis that I consider such matters to be of a private and personal nature and, further, the discussion of such matter is not directly relevant to the appeal.

[6] Except other than referring to Ms Edgar's inclusion of the material.

Close

Editorial Notes

  • Published Case Name:

    Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • Shortened Case Name:

    Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs)

  • MNC:

    [2023] QIRC 167

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    06 Jun 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
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
2 citations
Jump To
Cite 1 - [2021] QIRC 263
Cite 2 - [2021] QIRC 263
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
4 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1993] QCA 12
Cite 3 - [1995] 2 Qd R 10
Cite 4 - [1995] 2 Qd R 10

Cases Citing

Case NameFull CitationFrequency
AN v State of Queensland (Department of Education) [2023] QIRC 2892 citations
DR v IU [2023] QIRC 2512 citations
Mutonhori v Mount Isa City Council [2024] QIRC 411 citation
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
RY v State of Queensland (Queensland Health) [2023] QIRC 2082 citations
Tilley v State of Queensland (Queensland Health) [2023] QIRC 2622 citations
TK v State of Queensland (Queensland Health) [2024] QIRC 1892 citations
Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 202 citations
Waite v State of Queensland (Department of Environment and Science) [2024] QIRC 1442 citations
1

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