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  4. Limpus v State of Queensland (Department of Environment and Science) - [2023] QIRC 184

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Limpus v State of Queensland (Department of Environment and Science)[2023] QIRC 184

Limpus v State of Queensland (Department of Environment and Science)[2023] QIRC 184

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Limpus v State of Queensland (Department of Environment and Science) [2023] QIRC 184

PARTIES:

Limpus, Duncan

(Appellant)

v

State of Queensland (Department of Environment and Science)

(Respondent)

CASE NO:

PSA/2023/70

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

16 June 2023

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – whether the decision was fair and reasonable – whether disciplinary action was appropriate and proportionate – where disciplinary finding decision confirmed – where disciplinary action decision confirmed

LEGISLATION AND OTHER INSTRUMENTS:

Code of Conduct for the Queensland Public Service cls 1, 4

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

Public Sector Act 2022 (Qld)  ss 91, 92, 129, 131, 133

Public Service Act 2008 (Qld) (repealed) s 175

Reasons for Decision

Background

  1. [1]
    Mr Duncan Limpus (‘the Appellant’) is employed by the State of Queensland (Department of Environment and Science) (‘the Respondent’) as a Senior Technical Officer in the Aquatic Threatened Species unit based at the Eco-Sciences Precinct in Brisbane.
  1. [2]
    Mr Limpus appeals the disciplinary action decision of Mr Andrew Buckley, Assistant Director-General, Management and Operations, Queensland Parks and Wildlife Service and Partnerships, dated 24 March 2023. In the decision letter, the decision-maker wrote:

I have carefully considered all the material before me, and I have determined to impose discipline action in the form of a remuneration decrease from TO3/4 to TO3/2 for a period of 12 months and administrative action of commencing a performance and development plan with regular reviews (at least every 3 months for a 12 month period) which will include a specific item about appropriate behaviour in the workplace.

  1. [3]
    The decision-maker advised Mr Limpus that the disciplinary action of a remuneration decrease and administrative action was effective immediately from the date of the letter.
  1. [4]
    The disciplinary action decision was preceded by a decision letter dated 1 March 2023 in which the decision-maker found the following allegations made against Mr Limpus to be substantiated:
  1. You continuously watched staff and volunteers at Mon Repos making them feel uncomfortable.
  1. You continuously criticised staff and volunteers over whom you have no supervisory responsibility, which is inappropriate behaviour.
  1. You have failed to comply with your obligations to provide a return of operations to the Department of Environment and Science (the Department) for your mitigation permit held under the Nature Conservation (Animal) Regulation 2020 Section 318 Compliance with conditions of animal authority.
  1. You inappropriately accessed and obtained your own records from the DES Online Services internal portal for personal reasons and provided images (screen shots) of this in your correspondence to the Minister for the Environment and the Great Barrier Reef and Minister for Science and Youth Affairs, Meaghan Scanlon MP on 10 October 2021.

and

that the above allegations provide grounds for discipline in accordance with section 91(1)(h) of the Public Sector Act 2022 (PS Act), in that you may have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  1. [5]
    In this correspondence, Mr Buckley invited Mr Limpus to show cause why the disciplinary action outlined above should not be imposed under s 92 of the Public Sector Act 2022 (Qld) (the PS Act).
  1. [6]
    Having considered Mr Limpus’ response of 14 April 2023, the Respondent issued the disciplinary action letter on 24 March 2023. Mr Limpus subsequently filed his appeal notice on 14 April 2023, within 21 days of receiving the disciplinary action letter.

Is the Appellant entitled to appeal?

  1. [7]
    Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(c) provides that an appeal may be made against a disciplinary decision.
  1. [8]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

disciplinary decision means a decision under a disciplinary law to discipline—

  1. (a)
    a person (other than by termination of employment), including the action taken in disciplining the person; or
  2. (b)
    a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.
  1. [9]
    Section 133 of the PS Act explains who may appeal a disciplinary decision:

133  Who may appeal

…

  1. (c)
    for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive
  1. [10]
    I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time.

Appeal principles

  1. [11]
    Section 562B(3) of the Industrial Relations Act 2016 (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [12]
    Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission —

  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  2. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [13]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [14]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [15]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative framework

  1. [16]
    Mr Limpus was found liable for discipline under s 91(h) of the PS Act. It provides:

91 Grounds for discipline

  1. (1)
    A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [17]
    Mr Limpus’ behaviour was found to be a breach of cl 1.5(a) of the Code of Conduct for the Queensland Public Service. It provides:
  1. Integrity and impartiality

…

  1. 1.5Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  2. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  3. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  4. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  5. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

Mr Limpus’ reasons for appeal

  1. [13]
    Mr Limpus appeals both the disciplinary finding which gave rise to grounds for discipline  and the disciplinary action imposed.
  1. [14]
    With regard to the disciplinary finding, Mr Limpus’ grounds for appeal are:
  1. DISCIPLINARY FINDING
  1. 1.1
    Decision maker relied on different show cause allegations in final decision compared to show cause allegations in the show cause notice.
  1. 1.1.a
    Decision maker barred by applied “Double Jeopardy Principle” to conduct disciplinary action as enforcement action already conducted by the Department.
  1. 1.2
    Decision maker placed insufficient weight on relevant matters such as
  1. 1.2.a
    Similar actions of other persons
  2. 1.2.b
    Evidence of the complainant’s unlawful breach of legislation not governed by Decision maker or Department
  3. 1.2.c
    Evidence of the complainant’s conduct similar to Appellant
  4. 1.2.d
    Evidence the Appellant followed management directive
  5. 1.2.e
    Use of freely obtained evidence of document use to show misconduct
  1. 1.3
    Procedural fairness or natural justice not afforded
  1. 1.3.a
    Decision maker committed unlawful action and inappropriate conduct during the course of the matter
  2. 1.3.b
    Actions of other persons not treated the sane [sic] as Appellant’s actions, evidence of bias of Decision maker
  3. 1.3.c
    Statements were not sought or nominated witnesses not contacted by decision maker to corroborate Appellant’s statement
  4. 1.3.d
    When different version of events or statements were tendered by a complainant and the Appellant the decision maker consistently found against the Appellant on the ‘balance of probability’ showing clear bias against the Appellant.
  1. [15]
    With regard to the disciplinary action decision, the Appellant says that it is excessive, unwarranted, severe, and designed to intimidate him. Further, Mr Limpus submits that the disciplinary action ‘has been increased in severity during the course of this matter to intimidate’ him and the disciplinary action will result in financial loss and cause significant disruption to the Respondent’s work programs.

Approach to the appeal

  1. [16]
    The appeal requires me to consider firstly, whether it was fair and reasonable for the decision-maker to determine that the allegations were substantiated and gave rise to a ground for discipline. If the disciplinary finding is upheld, I will then turn to the disciplinary action decision and consider if it was fair and reasonable.
  1. [17]
    It is convenient to consider the submissions of the parties as they relate to each of the aspects of the decision.

Disciplinary finding

Allegation 1: You continuously watched staff and volunteers at Mon Repos making them feel uncomfortable

  1. [18]
    The particulars of Allegation 1 are set out in the show cause letter of 1 November 2021:

a.  Ms Lauren Engledow states that on or around 10 February 2021, your manner was “intimidating and threatening. He has also been hanging out on the beach watching what we are doing. He will then appear out of nowhere. To be honest I’m becoming increasingly uncomfortable when I know he is on the beach”.

b.  On 22 February 2021, when volunteer Mr John Gatley was leading a volunteer team he “noticed a person off at the back of the group and thought someone from the group had wandered away a little; this person was DL (Duncan Limpus) and John felt he was lurking their watching”.

c.  On or around 23 February, Ms Engledow advised Ms Cathy Gatley that she had a number of volunteers who stated that they were “scared or uncomfortable to do a normal practice, such as boarding a nest because DL (Duncan Limpus) was nearby or on the beach, as well as reports of him hovering around or appearing at a location”. Further, Ms Engledow thinks that you are “obviously watching and listening in to everything. This makes her feel very ‘uncomfortable being on the beach with DL (Duncan Limpus”.

d.  Feedback was received from a survey of 2020-2021 Volunteers (extract attached) that suggested you were watching volunteer groups in the dark.

  1. [19]
    After stating that this conduct may give rise to grounds for discipline, the decision-maker says:

In making this allegation I have given consideration to the information contained in the investigation report (Attachment 1), in particular the evidence and analysis on pages 27 to 37.

Specifically, I note the following:

  • Ms Engledow’s witness statement “I was starting to feel quite uncomfortable… with him on the beach because of him watching what we’re doing, and almost trying to catch us out doing the wrong thing.”
  • Your statement “we’re always being informed from Col as our manager, if we see anything that is not right, then we are to take note of it, we are to watch what’s happening and we are to report it back to him, which we do” and further statement “No one announces their presence on the beach”.
  • The statement from Mr Gately “the accepted process there for people walking along the beach… if you’re approaching someone in the dark – because we’ve all got our lights off except if you’re looking for hatchlings… You will always say hello or something when you’re 10 metres off or something so they know that you’re coming and you don’t scare the life out of them.”
  • The COVID-19 plan requires no interaction of staff from the different teams on Mon Repos.
  • While you may have had a legitimate purpose in observing the work of SEQ Region staff, there were concerns raised about you approaching others in a way that startles and/or frightens staff and volunteers and being motivated by a desire to control or dominate other staff and volunteers.
  • There are different documents with inconsistent instruction about the boarding of clutches on the beach such as the Hatchling Turtle Procedure – Mon Repos Turtle Centre distributed by Ms Gatley and training notes dated 21 January 2021 and an email dated 25 February 2021 from Dr Limpus.

Mr Limpus’ submissions

  1. [20]
    Mr Limpus has provided extensive submissions with regard to Allegation 1. Essentially, with regard to this allegation, Mr Limpus says:
  • He, and other staff, were directed to observe Queensland Parks and Wildlife Service (‘QPWS’) Mon Repos staff while undertaking his normal duties.
  • QPWS Mon Repos staff were in breach of Department of Agriculture, Fisheries and Forestry (‘DAFF’) Animal Ethics legislation.
  • He submitted a compiled complaint against the QPWS Mon Repos staff via email on 22 February 2021.[1]
  • The decision-maker ‘willingly undertook corrupt conduct’ by not reporting the breach following a written complaint made by the Aquatic Threatened Species Manager.
  • The disciplinary action imposed upon him was based on an incomplete investigation and findings.
  • The show cause allegations were altered between the final decision and the show cause notice.
  • He has not received procedural fairness and this is a breach of his rights under the Human Rights Act 2019 (Qld).
  1. [21]
    Mr Limpus has attached the Evexia report to his appeal submissions.[2] I have read the report and note that with regard to this allegation, the investigator provided the following ‘opinion’:[3]

On balance, collateral information obtained during the current investigation substantiates the allegations made regarding Mr Limpus watching staff and volunteers on the beach. It is clear that this behaviour causes some people discomfort and has been interpreted as intimidating, due to the perception of being monitored by Mr Limpus with the intention of him finding fault in their practices. However, it can not be reliably confirmed that Mr Limpus’ intent is to intimidate. Nor in the circumstances of lack of role clarity and competing role responsibilities as well as practices to reduce scrutiny of activities as well as concerns regarding repeated breaches of protocols that have bearing on an endangered species such that the risks are significant, the behaviour does not appear inappropriate. Collateral supports Mr Limpus’ view, to some extent, that patrolling the beach and monitoring the practices of staff and volunteers is within the scope of his role. Collateral also exists to support Mr Limpus’ claim that this behaviour is motivated by ensuring adherence to Animal Ethics approvals. There is also collateral to support that Mr Limpus believes he has complied with a direction from his line manager, in engaging in this behaviour.

While Mr Limpus attested that he does not deliberately conceal his presence on the beach at night, it does appear on balance that Mr Limpus does not always actively announce his presence to staff and volunteers as he approaches them. This reasonably appears to have contributed to discomfort for staff who have felt surprised or startled by his unexpected presence in proximity to them on the beach at night in darkness. The behaviour of monitoring or watching the activities of staff and volunteers on the beach may not be unreasonable in it’s [sic] aim or intention, however it does not appear ideal nor does the way in which this behaviour is performed appear to be consistent with the Code of Conduct principle to “treat co-workers, clients and members of the public with courtesy and respect”. The key impacts of this behaviour on individuals appears to be frustration and annoyance, as well as anxiety regarding having their practices scrutinised and the consequence of being accused of breaching protocols.

Respondent’s submissions

  1. [22]
    The Respondent says that on the evidence available, it was open to the delegate to determine that the alleged behaviour occurred, and that such behaviour provides grounds for discipline.
  1. [23]
    The Respondent says that the delegate clearly advised Mr Limpus that his behaviour was making staff uncomfortable and that it was not a matter of whether Mr Limpus was doing what he believed was his job, but it was the behaviour in undertaking those duties that was inappropriate.
  1. [24]
    The Respondent says it readily accepts that Mr Limpus was directed to undertake observations of staff and report on this and that the delegate made it clear to Mr Limpus in the decision of 24 March 2023 that it was the manner in which the duties were undertaken that was at issue:
  • The evidence before me demonstrates it is not about what you were doing, watching the employees and reporting back, it was the unacceptable and inappropriate manner in which you did it.
  • You don’t deny that you were “less than cordial” with the other staff, however you show nor remorse for your actions, and you attempt to justify your behaviour as acceptable because it was reciprocated.

…

  1. [25]
    The Respondent refutes Mr Limpus’ claim that the Evexia investigation report confirmed that QPWS Mon Repos staff were in breach of DAFF Animal Ethics legislation and says that no such finding was made in the report.
  1. [26]
    With regard to Mr Limpus’ claim that his human rights have been breached because his specified witnesses were not interviewed during the Evexia investigation, the Respondent say that it is not aware of which human right has allegedly been breached and that Mr Limpus has provided no evidence or justification for this allegation.
  1. [27]
    The Respondent refutes Mr Limpus’ submission that the allegation changed during the show cause process and says that no breach of a human right has been demonstrated. The Respondent also rejects Mr Limpus’ allegation that the delegate has breached the Code of Conduct or engaged in corrupt conduct.
  1. [28]
    The Respondent says that Mr Limpus is conflating his beliefs and views with the actual evidence and that he has made allegations of breaches of legislation and policy with no specific detail of the breach, nor evidence of the alleged breach. The Respondent says that making unfounded and spurious allegations does not alleviate Mr Limpus’ requirement to provide evidence to support his submission that the decision is unreasonable.

Mr Limpus’ submissions in reply

  1. [29]
    Mr Limpus repeats his submission that his nominated witnesses were not contacted or interviewed. Mr Limpus says that there are two different workgroups with opposing views and yet one workgroup was interviewed and the other was not.
  1. [30]
    Mr Limpus says that the delegate ignored the findings of the investigation that his behaviour was ‘not inappropriate’.
  1. [31]
    Mr Limpus points to the finding in the investigation report that supports his assertions regarding the protocol for boarding nests. Mr Limpus appears to argue that this supports his allegation that Mon Repos staff acted in breach of the legislation.
  1. [32]
    Mr Limpus reiterates his submission that there was a change ‘in wording and meaning in the penalty letter from “the act of watching” to “a manner of behaviour”’.
  1. [33]
    In response to the submissions of the Respondent that Mr Limpus had not provided specificity or evidence to support his allegations of breaches of legislation or regulations, Mr Limpus says that training in the Code of Conduct and regarding fraud and corruption does not teach about specific clauses or points in the legislation and policy, rather it ‘teaches staff to identify breaches’ and to report these to management and Corporate Human Resources.

Consideration

  1. [34]
    I have considered Mr Limpus’ submission that the witnesses he nominated were not interviewed. However, I find it was fair and reasonable for the delegate to determine as he did in the letter of 16 December 2021 that at least two of the witnesses, ‘Both Ms Turner and Ms King are no longer volunteers with the department and there were multiple other witnesses to the alleged events’.
  1. [35]
    I note Mr Limpus’ submissions alleging corrupt conduct and stating that reported breaches of legislation and regulation have not been reported or followed up on. While Mr Limpus may have concerns about how his complaint and reporting of alleged breaches were dealt with, that does not serve to undermine the delegate’s decision about the allegation.
  1. [36]
    As far as I can gather, both the investigator and the delegate found that Mr Limpus did have a legitimate purpose for observing staff at Mon Repos but that it was the way in which he was doing that observation which was problematic.
  1. [37]
    I have reviewed the material available to the delegate regarding Allegation 1 and I find that it was fair and reasonable for the delegate to find that on the balance of probabilities, Mr Limpus did watch staff and volunteers and make them feel uncomfortable.
  1. [38]
    The allegations Mr Limpus raises in response to this allegation are matters he may wish to address via another avenue, however, they are not matters which would serve to make it not fair and reasonable for the allegation to be substantiated.
  1. [39]
    I also find that it was fair and reasonable for the delegate to determine that Mr Limpus’ conduct contravened cl 1.5(a) of the Code of Conduct in that it did not demonstrate a high standard of workplace behaviour and personal conduct.

Allegation 2: You continuously criticised staff and volunteers over whom you have no supervisory responsibility, which is inappropriate behaviour

  1. [40]
    The particulars of Allegation 2 are set out on page 2 of the show cause letter:

a.  On 10 February 2021, you raised concerns about the handling of nests and recounted an incident with a visitor the night before. Ms Gatley alleged “He also said what I was saying was against the ethics. I said it wasn’t… he didn’t agree.”

b.  On or around 23 February 2023, you approached a volunteer, Mr Gatley, and raised concerns that his team were digging into nests and boarding nests inappropriately, even though there are a variety of approved methods to account for the differences that occur in the field.

c.  Mr Gatley later saw you “in this area supervising some researching [sic] digging nests in Cage 1, DL (Duncan Limpus) said there were 7 sticks in the cage and he had told Col it had to be off access to groups so the digging could happen”. It was confirmed that Dr Limpus had radioed a message that night that Cage 1 was off limits as it was being used for training without any discussion with Ms Gately according the site protocol.

  1. [41]
    The decision-maker stated that Allegation 2 may give rise to grounds for discipline pursuant to cl 1.5(a) of the Code of Conduct. The decision-maker said:

In making this allegation I have given consideration to the information contained in the investigation report (Attachment 1), in particular the evidence and analysis on pages 37 to 41.

Specifically I note the following:

  • Mr Gatley’s witness statement “He’s very blunt and he’s very aggressive. It’s always one way. It’s always a one way conversation. He is telling you this. He is not looking for feedback. So it’s a very forceful direct – yeah I don’t know how else I would describe that.”
  • Mr Gately’s witness statement about the COVID Management Plan requirement that the Rangers and information centre volunteers would have access to the first five activities on the beach and that you approached him to tell him that the cage had to be off access to groups.
  • You have stated that there is no written site protocol that says the visitors take the first activities on the beach.
  • The report finds that your approach in expressing your views is perceived as overly directive and non-collegiate.

Mr Limpus’ submissions

  1. [42]
    Mr Limpus says that the Evexia investigation report demonstrates that while he was not an immediate supervisor to the Mon Repos staff and their volunteers, he held an oversight role in the continuous compliance with DAFF Animal Ethics legislation and the Department of Environment and Science (‘DES’) Turtle Conservation Methodologies.
  1. [43]
    Mr Limpus reiterates that the investigation report was based on interviews with three QPWS Mon Repos staff involved and that all openly stated that they had been less than cordial in their communication with each other. Mr Limpus says that in the investigation he acknowledged and regretted the conversations he had with the QPWS Mon Repos staff and that it is not correct for the decision-maker to find that Mr Limpus had not shown any remorse.
  1. [44]
    Mr Limpus says that there was no yelling, nor any swearing in any of the conversations he had with the Mon Repos staff. Mr Limpus says that he has been discriminated against as he has been ‘singled out for targeted vilification’ and is the only person facing penalty action.

Respondent’s submissions

  1. [45]
    The Respondent says that like in Allegation 1, the issue is not whether Mr Limpus was doing what he believed to be his job, but the way that he was doing it. The delegate determined that Mr Limpus had intimidated colleagues and acted inappropriately towards others when undertaking his role.
  1. [46]
    The Respondent says that Mr Limpus is conflating his interview with Evexia for their findings. The Respondent says that there is nothing in the Evexia report to indicate that he acknowledged and regretted his conversations with his colleagues and that there is nothing in his response to indicate this. The Respondent says that it is only when there is a penalty proposed that Mr Limpus admits his culpability.
  1. [47]
    The Respondent says that Mr Limpus appears to have no understanding of the term ‘vilification’ and that he has not demonstrated which attribute he alleges the Department has used as the basis of vilification. I note that in his reply submissions on this matter, Mr Limpus refers to a dictionary definition of vilification which is quite different to the statutory definition.

Consideration

  1. [48]
    I note Mr Limpus’ submissions regarding discrimination and vilification. If Mr Limpus wishes to pursue these matters, there are other avenues available to him, however this public sector appeal is not one of them. While inconsistent treatment may indicate that a decision is unreasonable, I do not have evidence before me in this appeal to demonstrate that the decision to make a finding that it was inappropriate for Mr Limpus to constantly criticise staff was discriminatory.
  1. [49]
    I have had regard to the Evexia report and the investigator’s findings with regard to this allegation:

On balance, collateral information obtained during the current investigation substantiates the allegations that Mr Limpus expressed criticism of the practices engaged by members of the South East Queensland Regional team, as specified in the above complaints. It also appears that Mr Limpus’ approach in expressing his views was perceived in these instances as overly directive and non-collegiate. Determining whether the behaviour was inappropriate needs to be considered in light of contextual factors, as in Mr Limpus’ view the discussion was about acting in an unsafe work manner/practice, thus placing hatchlings at risk. This in the context of earlier noted contextual factors of role clarity and role responsibility, reports of repeated breaches of protocol, relationship conflict between Mr Gately and his wife Mrs Gately with Dr Limpus and Mr Limpus, it is hard to conclude such conduct as inappropriate.

  1. [50]
    I have considered the material Mr Limpus raised in his show cause response[4] and which were summarised in the disciplinary findings letter of 16 December 2021:
  • You do not agree with the findings of the investigation and my decision to commence the show cause process.
  • You believe that SEQ Region staff have lied to the investigators but provided no evidence to substantiate this claim.
  • You also state that the COVID Safety Plan impacted on staff and volunteer interactions at Mon Repos.
  • You raise further issues about animal ethics methods and accuse SEQ Region staff of causing hatchling deaths and stating that this was not reported to DAF as required by legislation.
  • You state that your role is to monitor the research methodology used by all staff and volunteers and you were merely doing your job.
  • You raise an issue alleging that SEQ Region staff have entered the ATS work area, looked through your equipment/belongings and stolen personal property stating that this has been repeatedly raised.
  1. [51]
    I note that the investigation report found that Mr Limpus had expressed criticisms in ways that were described as overly directive and non-collegiate, the investigator noted interpersonal issues and other matters in the workplace and found that it was ‘hard to conclude such conduct as inappropriate’. However, it is not the investigator who is tasked with making the eventual disciplinary finding following receipt of the show cause response. The decision-maker provided the following analysis in the findings letter:

I note your concerns about the impact of the COVID Safety Plan, however this does not excuse inappropriate behaviour or conduct in breach of the Code of Conduct. Other staff were able to comply with the plan without behaving in a similar manner.

I note your concerns about animal ethics methods that may have led to hatchling deaths and I have asked relevant staff to ensure that the Department has fully complied with our reporting obligations in this matter.

I have considered your statement that you were merely doing your job to monitor the research methodology used by all staff. The matters alleged are not about the functions of your role but the manner in which you undertook them. It is not appropriate to intimidate your colleagues and I find that you have used inappropriate behaviour towards others when undertaking your role as a Senior Technical Officer.

I note your reference to SEQ Region staff entering your workspace and the allegation of theft of your personal property. This is a matter you have raised previously and has already been addressed. It is not at all relevant to the allegation or this process.

Based on the information before me, I find that, on the balance of probabilities, you did continuously criticise staff and volunteers over whom you have no supervisory responsibility, which is inappropriate behaviour.

Accordingly, I have determined that allegation two is substantiated.

  1. [52]
    The decision-maker is required to take all material into account and determine if on the balance of probabilities, the allegation can be substantiated. The decision-maker noted the issues that had been addressed in the Evexia report and properly considered Mr Limpus’ submissions. It was open to the decision-maker to find that the allegation was substantiated and that this conduct contravened cl 1.5(a) of the Code of Conduct.

Allegation 3: You have failed to comply with your obligations to provide a return of operations to the Department of Environment and Science (the Department) for your mitigation permit held under the Nature Conservation (Animal) Regulation 2020 Section 318 Compliance with conditions of animal authority

  1. [53]
    The particulars of this allegation were set out in the Show Cause letter dated 31 January 2022:[5]

a.  Your primary responsibility as a public sector employee is to act in the best interests of the Queensland Community and as a Technical Officer with the Department there is a strong emphasis on accurate record keeping, data entry and reporting, therefore you are aware of record keeping and reporting operations.

b.  On 8/10/2020 you failed to provide the department with a Return of Operations (RET042241) for the period 24 June 2020 – 23 September 2020 for the Damage Mitigation Permit (Remove and Relocate) WA0022441 under the Nature Conversation (Animal) Regulation 2020 Section 318 Compliance with conditions of animal authority. This is breach of permit condition DMLR01 and you were issued with a Penalty Infringement Notice (PIN) for an individual of 5 penalty units - $667.00.

c.  On 08/01/2021 you failed to provide the department with a Return of Operations (RET044565) for the period 24 September 2020 – 23 December 2020 for the Damage Mitigation Permit (Remove and Relocate) WA0022441 under the Nature Conversation (Animal) Regulation 2020 Section 318 Compliance with conditions of animal authority. This is a breach of permit DMLR01 and you were issued with a PIN for an individual of 5 penalty units - $667.00.

d.  On 07/07/2021 you failed to provide the department with a Return of Operations (RET049016) for the period 24 March 2021 – 23 June 2021 for the Damage Mitigation Permit (Remove and Relocate) WA0022441 under the Nature Conversation (Animal) Regulation 2020 Section 318 Compliance with conditions of animal authority. This is a breach of permit DMLR01 and you were issues [sic] with a PIN for an individual of 5 penalty units - $689.00.

Mr Limpus’ submissions

  1. [54]
    Mr Limpus provides detailed submissions regarding this allegation from paragraphs [11] to [14] of his submissions filed on 11 May 2023. In summary Mr Limpus says: the notices of penalty were issued in breach of legislation and DES Policies; the statutory timeframe of summary prosecutions had elapsed with the PINs; the decision-maker has undertaken criminal conduct by breaching the double jeopardy principle; and the decision-maker made false accusations in the 31 January 2022 show cause letter.[6]

Respondent’s submissions

  1. [55]
    The Respondent says that Mr Limpus was found to have failed to comply with his obligations to provide a return of operations as required by the permit he held under the Nature Conservation (Animal) Regulation 2020 (‘the Regulation’). The Respondent says that it was determined that the returns were lodged only after the inspection by DES compliance officers. The Respondent says that contrary to his complaint to the Minister, Mr Limpus acknowledged his failure to lodge his returns when he was interviewed during the inspection and this was recorded on bodycam footage. The Respondent says that as an employee of the Department who administers the Regulation there is a clear obligation for Mr Limpus to ensure his actions are complicit with the requirements of the legislation and that having found that Mr Limpus failed to do this, the decision-maker was justified in finding that he had breached s 91(1)(b) of the PS Act.
  1. [56]
    The Respondent says that arguments about the validity of the Penalty Infringement Notices is a matter for the defence of the PINs and has nothing to do with the discipline investigation.
  1. [57]
    With regard to Mr Limpus’ submissions regarding the ‘double jeopardy’ principle and reference to section 17 of the Criminal Code 1899 (Qld), the Respondent says that neither the discipline process nor the Penalty Infringement Notices are indictable offences and therefore neither s 17 of the Code nor the double jeopardy principle apply to this matter. The Respondent says that to allege that the delegate has ‘undertaken criminal conduct’ is a serious allegation based on a clear misunderstanding of the Criminal Code. The Respondent says that a misunderstanding of the law does not limit Mr Limpus’ responsibility in making the accusation, that there is no protection attached to Mr Limpus’ submissions and that false allegations of criminal acts are punishable offences.
  1. [58]
    The Respondent says that Allegation 3 was not related to the issuing of PINs, rather it was in relation to his failure to comply with his obligations to provide a return of operations. The Respondent says that Mr Limpus has not responded to that allegation, other than to suggest that if he has not complied, he should be treated in the same way as any other person. The Respondent submits that if another person failed to comply with their reporting obligations, it is open to the Department to issue them with a PIN. The Respondent says that the fact that Mr Limpus is an employee with an obligation to follow regulations, does not restrict it from taking disciplinary action in addition to issuing a PIN.

Mr Limpus’ submissions in reply

  1. [59]
    Mr Limpus says that the Respondent is ‘misrepresenting factual information’ and that he has not been found to have failed to comply with any return of operations. Mr Limpus says that any matters that were before the courts have been finalised with regard to any penalty proposal and no longer exist. Mr Limpus says the double jeopardy principle should apply as the Respondent has chosen to continue with applying a new penalty process upon him for a ‘legally finalised matter’.
  1. [60]
    Mr Limpus says that he had completed all return of operations as required and that during the interview, Mr Limpus informed Wildlife Officers on 13 occasions that he has completed his return of operations and that they were all complete and up to date and had a ‘nil’ return every time. In response to the Respondent’s submission that he had acknowledged a failure to lodge his returns, Mr Limpus says that this is not true and that his information is that all returns are complete.

Consideration

  1. [61]
    In the disciplinary decision letter dated 1 March 2023, the decision-maker considered Mr Limpus’ submissions and response to the show cause notice and provided an analysis, determining that Allegation 3 was substantiated:

In your response dated 26 August 2022, you make the following submissions in relation to Allegation three:

  • If your actions are deemed non-compliant, then you will be dealt with the same as any other person.
  • You have not received three Penalty Infringement Notices, only two.

In your response you advise that:

  • You do not know how receiving a Penalty Infringement Notice (PIN) has anything to do with an internal disciplinary process.
  • You want to know how many other departmental staff have gone through a disciplinary process for receiving a PIN.
  • You believe the correspondence dated 31 January 2022 is full of false allegations.

Analysis

I note your concerns about the Penalty Infringement Notices. There was one warning and two Penalty Infringement Notices.

I note that the Penalty Infringement Notices were withdrawn as a result of a review by the department, however as part of the investigation, the metadata shows that the returns were not completed by the due date, resulting in a failure to comply with your obligations to provide a return of operations by the required date.

  1. [62]
    The decision-maker concluded that Allegation 3 gave rise to a finding of misconduct within the meaning of section 91(5)(b) involving inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
  1. [63]
    I understand that Mr Limpus says that he was compliant in providing the return of operations. However, the Respondent refers to metadata considered during the investigation which demonstrated that the returns were not completed by the due date.[7] I also note that the Deputy Director-General, in replying to Mr Limpus’ correspondence to the Minister, identified that the screen shots demonstrating compliance were taken on 16 August 2021, three days after the inspection was undertaken.
  1. [64]
    On 8 June 2023, I requested that the Registry write to the Respondent requesting:

… any further documentation or information the decision maker relied upon in making the finding with regard to Allegation 3, specifically with regard to the reference on page 3 of 6 of the letter of 1 March 2023 to the investigation undertaken and the metadata showing that returns were not completed by the due date.

  1. [65]
    On 9 June 2023, the Respondent provided ‘the metadata which shows the returns were not done on the due dates’. I was provided with two attachments. One is a document from the DES Online Portal which the Respondent says shows the progress of the returns for Damage Mitigation Permit WA0022441 through the system. On 11 November 2022, Mr Buckley requested information about the relevant metadata and said, ‘… How do I get access to Heidi’s assessment of the data and findings it’s not the data so much that I’m interested in’. The second attachment is an email dated 15 November 2022 from Matt Barr (Manager, State Investigations), providing a summary from Heidi-Marie Smith (Senior Investigator) based on her review of the metadata. Relevantly that email said:
  1. –For the return due on 8 Jan 2021, the consumer commenced and completed the return on 19 Jan 2021, the data shows the ‘nil return box’ was ticked but for reasons the data cannot explain, became unticked when the submit button was clicked to finalise the return. This would represent an unexplained glitch in the system, but the glitch does not change the fact the return was completed/finalised late.
  1. –For the return due on 7 July 2021, the consumer went online and clicked the button ‘complete wildlife return’ on 9 July 2021 but from the data it appears nothing was entered, and the screen was closed out using the cross at the top of the webpage. And it was not until after the department made the consumer aware during an inspection on 13 August 2021 that he had not completed his return for 7 July 2021, that the consumer went back online on 16 August 2021, and commenced and finalised the return with the ‘nil return’ box ticked.  The data cannot explain why the consumer did not follow through with return when he started the process on 9 July 2021, but even if he did complete/finalise the return on that date, it was still a late return.
  1. [66]
    For completeness, the email goes on to note that some consumers have completed paper returns and so the system is ‘not a point of truth’.  However, in this case, Mr Limpus had completed the returns online and so analysis regarding paper returns is not relevant.
  1. [67]
    The Respondent says that both of the attachments align in that Mr Limpus failed to submit his returns on time.  The PINs received by Mr Limpus were in relation to the two failures to submit returns as detailed in the attachments. The Respondent says:

RET049016 was due to be completed by 7 July 2021. It was not. The inspection of the appellant’s premises occurred on 13 August 2021 wherein he was advised his return had not been submitted.  On 16 August 2021, the appellant commenced and finalised the return – 3 days after the inspection.  You will note the commentary by Matt Barr that even if his return had been completed on the first date when the appellant went into the system on 9 July 2021, it was still past the due date of 7 July 2021.

In addition, RET044565 was due to be completed on January 8, 2021.  It was not. It was completed on 19 January 2021.

  1. [68]
    The Respondent also draws my attention to the body-worn video footage of the inspection where between approximately 9.04am and 9.07am, there is a discussion about the Appellant’s failure to submit his returns.  I confirm that I have reviewed the footage and note that this discussion took place.
  1. [69]
    Mr Limpus wrote to the Registry on 12 June 2023 in response to the information provided by the Respondent. I had not requested submissions from Mr Limpus with regard to this information but I determined to accept the email as further submissions on the appeal.  Mr Limpus raises doubts about the material provided and says that the ‘Department was yet to provide the Metadata files within this appeal process’. Mr Limpus goes on to discuss his RTI and what has been provided to him previously by the Department. Mr Limpus notes that he is addressing this matter ‘separate to this appeal process within the appropriate avenues’.  Mr Limpus says that Mr Barr’s email stipulates ‘errors within the online system itself for the return process’ and that he contests the dates of occurrences and log-ins.  Mr Limpus points to problems he has had with the system and says that the system is ‘full of errors and faults and the users are being inappropriately penalised as a result’.
  1. [70]
    Having accepted Mr Limpus’ correspondence as a further submission, I informed the Respondent that it was able to make a submission in reply if it wished to do so.  On 14 June 2023, the Respondent wrote to the Registry stating that the material it provided was that considered by the delegate in making a decision about Mr Limpus’ matter. The Respondent reiterated that Mr Buckley had asked for an analysis of the data, not the data itself. The Respondent says that matters raised by Mr Limpus above at [69] are not relevant to this matter and that the Respondent would not be replying to those matters.
  1. [71]
    Ms Smith’s summary acknowledges that there are some issues with the information that is entered on the system that cannot be explained by the data. However, it appears clear that Ms Smith’s analysis identified the dates that Mr Limpus made his entries and that these entries were not compliant with the required deadlines. I understand that, for whatever reason, a decision was made to withdraw the PINs, however I accept that the withdrawal of the PINs does not mean that Mr Limpus was compliant, simply that a decision was made not to pursue those penalties.
  1. [72]
    I find it was open to the decision-maker to determine that while Mr Limpus may have eventually complied, he did not do so within the required time limit.  While this occurred as Mr Limpus was acting in his private capacity, it is the case that as an experienced DES staff member, it is reasonable for the Respondent to expect him to demonstrate exemplary practice with regard to compliance with DES processes. It was open to the decision-maker to find that per s 91(5)(b) of the PS Act,  Mr Limpus’ conduct in a private capacity was inappropriate or improper and that given his seniority and long-standing employment with DES, this reflected seriously and adversely on the public sector entity in which the employee is employed. 

Allegation 4: You inappropriately accessed and obtained your own records from the DES Online Services internal portal for personal reasons and provided images (screen shots) of this in your correspondence to the Minister for the Environment and the Great Barrier Reef and Minister for Science and Youth Affairs, Meaghan Scanlon MP on 10 October 2021

  1. [73]
    The particulars of Allegation 4 are set out as follows:

a.  On 10 October 2021, you wrote to the Minister for the Environment and the Great Barrier Reef and Minister for Science and Youth Affairs, Meaghan Scanlon MP regarding your concerns about the conduct and behaviour of Compliance Inspection Officers, Warren Christensen and Cameron Wregg who had attended your property on 13 August 2021, and the subsequent PINs that were issued.

b.  In this correspondence you attached images (screen shots) from the DES Online Service internal portal (attachment 2).

c.  You inappropriately accessed your own records in the DES Online Services portal using the departments database that is only accessible to employees, for your own personal reasons.

Mr Limpus’ submissions

  1. [74]
    Mr Limpus says that he does not have access to the DES Online Services internal system and that this was confirmed and acknowledged by the decision-maker in the letter of 1 March 2023. Mr Limpus says that he decision-maker ‘confirmed my statements that their metadata is not accurate’. Mr Limpus says that the accusation that he inappropriately accessed his records ‘is a false accusation within official correspondence and confirmed by the decision maker’. Mr Limpus says that the decision-maker has not shown any remorse for the false accusation that he had to answer to.
  1. [75]
    Mr Limpus says that the screen shots he was given were provided to him freely and that ‘this is not inappropriate access to information has the screen shot images were freely provided and my use of them following being provided them is identical to that of any other external permit user’.
  1. [76]
    Mr Limpus makes reference to the Right to Information (‘RTI’) process where he requested documents and alleges that the decision-maker chose not to provide material and that this ‘is a direct breach of the RTI Act’.
  1. [77]
    Mr Limpus says that provision of the screen shots to the Minister was not an inappropriate action and that in the information was not used for his own personal gain.

Respondent’s submissions

  1. [78]
    The Respondent says that this allegation related to Mr Limpus using information he had obtained from the Department for personal gain in his complaint to the Minister when asking the Minister to intervene in waiving the PINs and investigate the issuing of the PINs and also requesting written apologies from the officers who investigated his non-compliance with the legislation.
  1. [79]
    The Respondent says that while it could not be determined how Mr Limpus obtained the information provided to the Minister, the delegate determined that the allegation was partially substantiated on the basis that it involved the use of official information.
  1. [80]
    The Respondent says that the allegation is not about how he obtained the records but that he used the records for his own personal reasons in making unsubstantiated allegations to the Minister. The Respondent says that the delegate acknowledged that it could not be determined how Mr Limpus obtained the records but that this not the same as agreeing that he did not access the Department’s database. The allegation remained partially substantiated as Mr Limpus had used the information for his own personal gain.
  1. [81]
    In response to Mr Limpus’ suggestion that the Department had failed to provide him with metadata files and alleging a breach of the Right to Information Act 2009 (Qld), the Respondent says that the allegation is not particularised but that the RTI process is not managed by the delegate and that any issues Mr Limpus has with the RTI process cannot be resolved in this appeal.
  1. [82]
    The Respondent attaches the letter Mr Limpus sent the Minister seeking to have the two PINs withdrawn and asking for written apologies. The Respondent says that this is clearly a matter of attempting to gain a personal advantage by utilising material obtained through the Department.
  1. [83]
    The Respondent provides its response refuting Mr Limpus’ complaint to the Minister in its entirety for my information.[8] The Respondent further says that there is video footage providing every one of his allegations to be fabricated.

Mr Limpus’ submissions in reply

  1. [84]
    Mr Limpus says that upon inspection, he was informed that he was being dealt with as a private individual and not a staff member of the Respondent. Mr Limpus says that he approached the matter for resolution as a private individual would. Mr Limpus says that he does not have access to the identified database and that he contacted Department staff to discuss the matter and that the images were provided to him freely without making request. Mr Limpus says this is standard practice for staff to assist customers.
  1. [85]
    With regard to the Respondent’s submission that he made unsubstantiated allegations to the Minister, Mr Limpus says that he has ‘factual evidence of the return of operations reverting in status or even fully deleting from the system that brings into question to the validity of every PIN issued by the Department based upon administrative issues with the Online Connect system since its commencement in 2017.’  
  1. [86]
    Mr Limpus says that the Respondent continues to make false claims that their online system is correct and that video footage proves his claims to be fabricated. Mr Limpus says that this is a false statement by the Department in its attempt to misguide the process and that the video footage shows nothing similar to what the Department is claiming.

Consideration

  1. [87]
    At the outset, I will not be addressing any allegations Mr Limpus makes about breaches of the Right to Information Act 2009 (Qld). Firstly, Mr Limpus simply attaches the Act to his submissions with no specific references to the breaches he alleges, and beyond that, the matter of alleged breaches of that Act is well beyond the matters before in this appeal.
  1. [88]
    In the disciplinary findings letter of 1 March 2023, the decision-maker considers Mr Limpus’ submissions and provides an analysis in determining that Allegation is partially substantiated:

In your response you make the following submissions in relation to Allegation three [sic][9]:

  • If your actions are deemed non-compliant, then you will be dealt with the same as any other person.

In your response you advise that:

  • you do not believe this process has been fair
  • you did not access the departmental database

Analysis

I note your concerns regarding accessing your records in the departmental system. This matter has been investigated and it has been found that we are not able to determine how you came to have in your possession your records from the departmental database. However, you did have these records in your possession and then used that information by way of screen shots in your letter to the Minister. Although we are unable to determine who accessed this information, you still used that information inappropriately for your own personal gain.

Accordingly, I have determined that Allegation four is partially substantiated.

  1. [89]
    The decision-maker found that partially substantiated Allegation 4 gave rise to a ground for discipline under cl 4.4 of the Code of Conduct requiring appropriate use and disclosure of official information and that such information will be treated with care and used only for the purpose for which it was collected or authorised.
  1. [90]
    I have reviewed all of the material available to me. This includes Mr Limpus’ letter to the Minister including the screen shots and the letter under the hand of Mr Ben Klaassen, Deputy Director-General responding to that letter.
  1. [91]
    It is clear to me that however it was that Mr Limpus was able to get the screen shots, they have been accessed internally and provided to him. Mr Limpus has then used those screen shots, including some labelled as being accessed through his log in, to support a letter to the Minister making serious allegations against the two officers who attended on his premises and requesting immediate withdrawal of PINs and warning letter and seeking a written apology. While Mr Limpus was being dealt with as an external person holding permits in a private capacity rather than an employee, he was able to access information which he used for the specific purpose of personal gain by way of seeking Ministerial intervention in the matter.
  1. [92]
    It was open to the decision-maker to partially substantiate the allegation and to make a finding that the partially substantiated allegation gave rise to a ground for discipline under cl 4.4 of the Code of Conduct.

Disciplinary Penalty

  1. [93]
    On 24 March 2023, following the show cause process, Mr Buckley wrote to Mr Limpus to inform him of the disciplinary decision. Mr Buckley provided a summary of the submissions made by Mr Limpus in response to the proposed disciplinary action:

In your response you make the following submissions in relation to the proposed disciplinary action:

  • You feel the proposed penalty to be overly excessive and disproportionate to the alleged offenses
  • You maintain that you were just doing your job by watching staff and reporting back any breaches to the manager
  • You admit you spoke “in a less than cordial fashion”, however you maintain that the other employees involved were speaking to you in the same manner
  • You state that you did complete all of your returns “as required”
  • You insist that the online system “Connect” is full of faults, therefore the data can’t be trusted, including the metadata
  • You also allege that it is common practice for staff to take screen shots of the data and send them around, including to clients who they are helping and discussing aspects with.
  1. [94]
    Mr Buckley then turns to his decision on disciplinary action:

I have carefully considered all the material before me, and I have determined to impose discipline action in the form of remuneration decrease from TO3/4 to TO3/2 for a period of 12 months and administrative action of commencing a performance and development plan with regular reviews (at least every 3 months for a 12 month period) which will include a specific item about appropriate behaviour in the workplace.

In reaching my decision on disciplinary action to be taken, I have had regard to the factors set out in the PSC Directive:  Discipline 05/23 and in particular note:

  • The evidence before me demonstrates it is not about what you were doing, watching the employees and reporting back, it was the unacceptable and inappropriate manner in which you did it
  • You don’t deny that you were “less than cordial” with the other staff, however you show no remorse for your actions, and you attempt to justify your behaviour as acceptable because it was reciprocated
  • You state that you completed the returns “as required” however at no time do you acknowledge that you failed to complete them by their due date. The system “Connect” many be flawed, but the metadata cannot be false
  • You state that the sharing of these screen shots is common practice, however it does not change the fact that you used internal departmental information for your own benefit.

On balance I consider, based on the information currently before me, a remuneration decrease from TO3/4 to TO3/2 for a period of 12 months and administrative action is proportionate to the substantiated finding, noting that this is your second disciplinary outcome and the context in which it has occurred…

  1. [95]
    Mr Limpus says that the taxable income loss to him following the decrease in his pay for a period of 12 months is ‘greater than 10%’ of his annual income.
  1. [96]
    Mr Limpus makes reference to the travel allowances associated with working at Mon Repos and says that as a result of action precluding him from attending Mon Repos, he is already suffering financial penalty before a reduction in remuneration as set out in the disciplinary decision.
  1. [97]
    Mr Limpus states that in a previous public service appeal, exclusion from working at Mon Repos was characterised as a disciplinary penalty.[10] I was the Commissioner who decided that appeal and I have reviewed that decision. In that decision letter, exclusion from Mon Repos was listed as a disciplinary action being taken rather than being included in the list of administrative actions being taken. That is not the case in this matter, where it appears either, that Mr Limpus is excluded from working at Mon Repos while undertaking the performance development process and completing the required professional development programs regarding communication in the workplace or that the Respondent has determined that Mr Limpus will not be deployed to Mon Repos for operational reasons. I note the reference to the impact of the administrative action and Mon Repos on page two the correspondence of 16 December 2021:[11]

I also note your concerns about me imposing administrative actions upon you to develop an  appropriate development plan and actively engage in such development before you can return to field work at Mon Repos. My role is to manage resources and to make decisions about the most effective allocation of resources and staff. The independent report clearly identifies training needs for you and I am exercising my duty of care to protect staff by ensuring you have commenced training in those areas before you return to the work location where these deficiencies have been identified. You are subject to a performance management process which has reasonably limited your activities until you can demonstrate improvement in your conduct and behaviour…

  1. [98]
    Mr Limpus raises concerns with ongoing management actions precluding him from attending Mon Repos and with regard to some events which occurred in January 2023 when he attended Mon Repos to provide training. These matters are not something for me to consider in this appeal.
  1. [99]
    Mr Limpus makes a submission regarding communication between the Respondent and his medical practitioner, however that matter does not appear to be something I am required to consider in this appeal. In any case, in circumstances where Mr Limpus commenced a period of sick leave during the disciplinary process, it would be reasonable for the Respondent to communicate with his medical practitioner to determine whether it was appropriate for the disciplinary process to continue. I also understand that Mr Limpus was directed to attend an Independent Medical Examination under s 175 of the now repealed Public Service Act 2008 (Qld). This is not a disciplinary action and is not the subject of this appeal.
  1. [100]
    Mr Limpus states that the Evexia investigation report made a recommendation about action to be taken arising from the findings of the report and that he suggests this action would be more appropriate. The Respondent points out that the recommendations of the investigator were made following consideration of only two of the four allegations and that further, that the investigator’s recommendations are not related to the discipline process. I understand that Mr Limpus may prefer the suggestion made in the investigation report, however, a decision about whether discipline grounds exist, and if so, what disciplinary action should be imposed, is a question for the decision-maker and not the investigator. That the decision-maker determined a different course to that recommended by the investigator does not render the disciplinary decision unfair or unreasonable.
  1. [101]
    Mr Limpus alleges that administrative actions imposed are ‘penalty under an administration guise’. I understand that Mr Limpus is aggrieved by the administrative actions the decision-maker determined to take to address the matters which have arisen from this disciplinary process. However, it is clear to me that the disciplinary action being taken is the reduction in remuneration for a period of 12 months. Matters such as a direction to undertake professional development and operational decisions about where employees will undertake their work are administrative decisions which are open to the decision-maker to take. If Mr Limpus is aggrieved by decisions made in relation to his employment, it is open to him to pursue such matters through the appropriate avenue. Mr Limpus’ show cause responses and communication with the Minister make it clear that he is aware that he can make complaints about matters which aggrieve him.
  1. [102]
    Mr Limpus says that the Respondent’s determination to take disciplinary action in relation to the PINs (which were withdrawn) is ‘inappropriate penalty action’ and he has made submissions regarding the principle of ‘double jeopardy’. As I have discussed above, the Respondent determined that Mr Limpus did not lodge the reports within the required timeframe and this conduct in a private capacity gave rise to a ground for discipline pursuant to s 91(5)(b) of the PS Act. Whether the PINs were issued or withdrawn is not the issue in this matter. Even if the PINs had been issued, it would be open to the Respondent to determine to take disciplinary action if it found that the conduct leading to the PINs gave rise to a ground for discipline.
  1. [103]
    The Respondent says that it was reasonable for the decision-maker to implement the disciplinary action proposed as a result of the allegations being substantiated on the basis of evidence and proper analysis. The Respondent also says that given the ongoing refusal by Mr Limpus to accept responsibility for any of his actions, it is appropriate that the penalty be applied.
  1. [104]
    I have found that it was open to the decision-maker to find that Allegations 1, 2 and 3 were substantiated, that Allegation 4 was partially substantiated, and that each of these allegations gave rise to grounds for discipline. I have considered the submissions regarding disciplinary penalty and note that a reduction in remuneration for a period of 12 months is at the lower end of the disciplinary actions available to the Respondent under s 92(1) of the PS Act. The disciplinary penalty communicated in the letter of 24 March 2023 was fair and reasonable and the decision is confirmed.

Other matters

  1. [105]
    I understand from the submissions and the material that there was a delay in the process between January 2022 and August 2022. Mr Limpus’ show cause response to the allegations was initially due on 14 February 2022, however, he commenced sick leave on 8 February 2022 and remained on leave until 9 August 2022. He responded on 26 August 2022. On 1 March 2023, Mr Limpus was provided with the discipline findings and a show cause notice regarding proposed disciplinary action. Mr Limpus requested an extension of time and was granted an additional week to respond. Mr Limpus provided his response on 14 March 2023. I am satisfied that Mr Limpus has been provided with an opportunity to respond to the allegations during the first show cause process and to respond to the proposed disciplinary action during the second part of the show cause process.
  1. [106]
    I confirm that I have read all material filed in this matter, with the exception of the entirety of legislation and regulations provided with no indication from Mr Limpus as to what sections of legislation he is referring to. Mr Limpus has not particularised the breaches of legislation he alleges throughout his materials. I have not considered matters where there is a lack of particularity in an allegation made by Mr Limpus or he has made submissions that are not relevant to the decisions being appealed against.
  1. [107]
    Mr Limpus raises a concern that the decision-maker ‘inappropriately gained access and used personal confidential information in sending work related email communication to my personal home email address on 17 February 2022 regarding the show cause process…’. Mr Limpus says that this is in breach of legislation and the Code of Conduct. While this is not a matter I need to consider in this appeal, I note that at the time correspondence was sent to Mr Limpus via his personal email address, he was on a period of leave and that the personal email address was one provided by him to the Respondent. The Respondent says that the purpose of the email was to notify Mr Limpus that the delegate had been advised he was absent and that the response date for the show cause process was being extended. The Respondent says that the delegate was required to do this because Mr Limpus had failed to respond to the show cause in the timeframe as required. That an item of correspondence providing Mr Limpus with information about an extension in the show cause process was sent to a private email address which he had provided to his employer does not make the decision unfair or unreasonable.
  1. [108]
    For completeness, I note that in his reply to the show cause letter dated 26 August 2022 (reply to the letter of 31 January 2022), Mr Limpus takes the opportunity to submit several formal complaints against the decision-maker and individuals who have brought complaints against him. Mr Limpus states that he believes the decision-maker is in breach of the Departmental Code of Conduct and Departmental anti-harassment policies, and says that in any other forum the allegations put to him would be ‘considered slanderous’. Mr Limpus calls for an external investigation into his complaints and says that ‘anything less than an independent external review of these complaints will be viewed as continued corrupt behaviour by yourself and the Department.’ Those complaints are not being considered in this appeal. In his submissions in support of this appeal matter, Mr Limpus asks that the Commission ‘exercise its powers under the Act and undertake a review of the conduct of the DM, Senior Human Resource Staff and the Department’. This appeal is not the forum for complaints or grievances Mr Limpus has about the conduct of employees of the Respondent. I will not consider those matters in this decision.
  1. [109]
    Mr Limpus makes several references to human rights and discrimination in his submissions. I am unable to find anything in the material or submissions relating to human rights or discrimination that would serve to make the decision unfair or unreasonable.
  1. [110]
    For the foregoing reasons, Mr Limpus’ appeal against the disciplinary findings and disciplinary action is unsuccessful. The decision appealed against is confirmed. 

Order

  1. [111]
    I make the following order:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Appellant’s submissions filed 11 May 2023, Appendix 1.

[2] Ibid Appendix 5.

[3] Evexia Pty Ltd, Workplace Factual Investigation Report (Investigation Report, 8 October 2021) [6.4.11].

[4] Respondent’s submissions filed 17 May 2023, Attachment 2.

[5] Appellant’s submissions filed 11 May 2023, Appendix 24.

[6] Ibid [15].

[7] Letter from Mr Andrew Buckley, Assistant Director-General, Management and Operations, Queensland Parks and Wildlife Service and Partnerships to Mr Duncan Limpus, 1 March 2023, page 3.

[8] Respondent’s submissions filed 17 May 2023, Attachment 10; Letter from Mr Ben Klaassen, Deputy Director-General, Queensland Parks and Wildlife Service Partnerships to Mr Duncan Limpus, 27 October 2021.

[9] I believe this is a typographical error and should refer to Allegation 4.

[10] Limpus v State of Queensland (Department of Environment and Science) PSA/2020/239 (unpublished).

[11] Appellant’s submissions filed 11 May 2023, Appendix 6; Letter from Mr Andrew Buckley, Assistant Director-General, Management and Operations, Queensland Parks and Wildlife Service and Partnerships to Mr Duncan Limpus, 16 December 2021.

Close

Editorial Notes

  • Published Case Name:

    Limpus v State of Queensland (Department of Environment and Science)

  • Shortened Case Name:

    Limpus v State of Queensland (Department of Environment and Science)

  • MNC:

    [2023] QIRC 184

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    16 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Carr v State of Queensland (Department of Education) [2024] QIRC 2102 citations
Joyce v State of Queensland (Department of Environment and Science) [2024] QIRC 2793 citations
1

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