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  4. Phillips v State of Queensland (Department of Transport and Main Roads) - [2023] QIRC 19

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Phillips v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 19

Phillips v State of Queensland (Department of Transport and Main Roads)[2023] QIRC 19

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 019

PARTIES:

Phillips, Helen

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO:

PSA/2022/987

PROCEEDING:

Public Service Appeal – Transfer Decision

DELIVERED ON:

20 January 2023

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – CLASSIFICATION, PROMOTION OR TRANSFER – appeal against a transfer decision – where Appellant required to transfer – whether decision fair and reasonable – decision confirmed

LEGISLATION AND INSTRUMENTS:

Department of Transport and Main Roads Managing Employee Complaints Procedure cl 7

Human Resource Management Delegation Manual - Number 17 November 2022

Human Rights Act 2019 s 25

Industrial Relations Act 2016 s 562B

Public Interest Disclosure Act 2010

Public Service Act 2008 ss 133, 134, 178

Work Health and Safety Act 2011

Reasons for Decision

Background

  1. [1]
    On 14 November 2022, Mr Joshua Hannan, General Manager (Transport Strategy and Planning) wrote to Ms Helen Phillips (the Appellant) providing his decision to transfer her from the position of AO8 Manager (Development Compliance and Support) (DCS) to AO8 Program Manager (Active Transport) (AT). The decision was made following a process whereby Mr Hannan wrote to Ms Phillips on 24 October 2022 inviting her to respond with reasonable grounds as to why she should not be transferred from the Manager (DCS) position to the Manager (AT) position.
  2. [2]
    In his letter of 14 November 2022, Mr Hannan states that in accordance with the Human Resources delegations of the Department of Transport and Main Roads (TMR), he had been delegated the function of the chief executive for this matter. Mr Hannan further stated that the decision to transfer Ms Phillips was made pursuant to sections 133 and 134 of the Public Service Act 2008 (the PS Act).
  3. [3]
    The letter of 14 November 2022 is 10-pages long.  While I do not intend to reproduce the letter here, I find it is useful to quote some key parts of the letter as they provide relevant background.

Reasons for the transfer proposal

As outlined in my letter to you, dated 24 October 2022 (herein referred to as my transfer proposal letter), I proposed that you be transferred at level from Development Facilitation unit to the Cycling and Walking unit of the TSP branch, as I do not consider it a suitable arrangement for you to continue to work as the Manger (DCS), in circumstances, where:

  • Dr Grant has opined that your absence from duty was caused by mental or physical illness or disability within the meaning of section 178 of the PS Act, namely, you had an adjustment disorder with anxiety due to 'complex difficulties' in the workplace.
  • Dr Grant's independent medical examination (IME) report has included several references to the fact that you suffered a mental illness during your absence from the workplace due to workplace issues.
  • Dr Grant's IME report has stated that you described to him that these workplace issues have been the source of your health issues, which I note is consistent with previous advice from Dr Marchus Navin, Occupational Physician, who conducted an IME of you on 15 January 2021 and your treating general practitioner, Dr Margaret Cotter.
  • As your General Manager, I have a duty of care obligation under the Work Health and Safety Act 2011 (the WHS Act) to ensure your safety, health and wellbeing in the workplace.
  • I have concerns that should you return to the position of Manager (DCS), it will have an adverse impact on the operations and overall team culture of the DCS team, noting the strained relationship between yourself and Ms Lori Wilson, Principal Program Advisor (DCS), reflected in your and Ms Wilson's respective grievances which remain unresolved.

In proposing this transfer, I have also taken into account the following:

  • That a transfer of this nature accords with Dr Grant's advice in returning you to the workplace and will also avoid any unnecessary disruption to the DCS team.
  • This transfer will provide you with an opportunity to restart your career with a new team in TMR and with no history of known interpersonal conflict or tension with others in that team.
  • This transfer will help to ensure your safe and sustainable return to work.
  • The AO8 Program Manager position, which I proposed to transfer you to, is located at 61 Mary Street, Brisbane, which is the same location as your current AO8 Manager role.
  • The AO8 Program Manager's position's duties align with your skillset and your substantive classification level.
  1. [4]
    Mr Hannan then goes on to outline Ms Phillips' response to the proposed transfer and his considerations of her response.  Mr Hannan notes that the response from Ms Phillips 'focuses on three core reasons why I should not transfer you as proposed':
  1. 1.'Reasonable reasons for the transfer have not been established'.
  2. 2.'The decision is in conflict with the [Human Rights Act].'
  3. 3.'The decision is reprisal as defined in the Public Interest Disclosure Act 2010'.
  1. [5]
    Pages 3 to 8 of the decision letter address Ms Phillips' responses and contain Mr Hannan's consideration of each aspect of her response as listed above at [4].  These submissions and responses largely form the basis of the appeal and so I will not go into them in detail here but will address them below.
  2. [6]
    On page 8 of the decision letter, Mr Hannan states:

Transfer Decision

In considering your response, I would like to reiterate that, having regard to the medical information available to me and my knowledge of your workplace matters, the fundamental reason for proposing to transfer you from the position of AO8 Manager (DCS) to AO8 Program Manager (Active Transport) is to support you to return to work in a safe environment where you can restart your career with the Department.

Having regard to my comments and the reasons outlined above, I have formed the view that it would not be suitable for you to return to work in the position of AO8 Manager (DCS) in the Development Facilitation unit.  Accordingly, having considered your response, I am not satisfied that you have demonstrated that the proposed transfer is likely to cause you significant detriment or that you will experience an exceptional hardship arising from a transfer to the position of AO8 Program Manager (Active Transport) in the Cycling and Walking unit.

To that end, as I have determined that you have not established reasonable grounds for refusing the transfer to my satisfaction, you will be transferred to the position of AO8 Program Manager (Active Transport) in the Cycling and Walking unit of the TSP branch pursuant to section 133(1)of the PS Act…

  1. [7]
    The language of ss 133 and 134 is clear and provides for the transfer of a public service officer of the Department within the Department.  Ms Phillips is a public service officer and the transfer decision has the effect of transferring her within the Department she is employed in.  I am satisfied that the transfer was made under the relevant sections of the PS Act and that the decision-maker was authorised to issue the transfer decision.[1] Further, I am satisfied that the decision may be appealed and that Ms Phillips has lodged her appeal within time.
  2. [8]
    Therefore, the question before the Commission in this appeal is whether it was fair and reasonable for Mr Hannan to transfer Ms Phillips from the position of AO8 Manager (DCS) to AO8 Program Manager (AT).

Appeal principles

  1. [9]
    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'.
  2. [10]
    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.
  3. [11]
    A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.

Ms Phillips' reasons for appeal

  1. [12]
    On 16 November 2022, Ms Phillips filed her appeal notice.  At Part C, Ms Phillips sets out her reasons for appeal:

The basis for appealing the transfer is:

  1. 1.Reasonable reasons for deciding to transfer me to another position have not been established.

The reasons given in the decision notice for the decision to transfer me are predicated on Mr Hannan's:

  1. a.misrepresentation of Dr Grant's report (which he was given because of his direction for me to attend an appointment with a psychiatrist), including Mr Hannan's own finding that I have a mental illness, despite Dr Grant's report clearly stating none exists;
  2. b.misleading statements about events and acts relevant to his decision where real and substantiated evidence exists and should be relied on, but has been concealed;
  3. c.own opinion there is "interpersonal conflict" between myself and Ms Lori Wilson who is a member of the team I am the Manager of –
  1. i.it is not known what is being suggested or assumed in the references to "interpersonal conflict" as "interpersonal conflict" has not been defined or examples provided.
  2. ii.No examination of facts or evidence relevant to the contention has ever been undertaken to determine if the opined "interpersonal conflict" exists, requires intervention or if Ms Wilson's allegations were simply reasonable management action being taken by me.
  3. iii.I have never been given Ms Wilson's complaint of November 2019 which caused Mr Hannan to first opine there was an "interpersonal conflict". I was told variously I was not allowed to see it;
  1. d.assertion there are unresolved grievances between myself and Ms Wilson and what appears to be a belief that transferring me to another position will somehow resolve those grievances without them having to be subjected to departmental policies and procedures; and
  2. e.unsubstantiated concern that my returning to my substantive position will have an adverse impact on the overall team culture of the DCS team without providing any information or evidence as to what adverse impacts Mr Hannan is envisaging and why I alone would be responsible for those impacts occurring.
  1. 2.The decision is in conflict with section 25 of the Human Rights Act 2019 (HRA)

The HRA requires all public entities in Queensland to act compatibly with human rights and give proper consideration to human rights before making a decision. Mr Hannan's decision to transfer me to an alternative position relies on untrue allegations made intentionally to attack my reputation, for example, that I have a mental illness and that my returning to the workplace would have an adverse impact on the overall team culture of the DCS team.

  1. 3.The decision is reprisal as defined in the Public Interest Disclosure Act 2020 (PDA)

The reprisal is for taking reasonable management action in identifying and raising concern about irregular financial management of an IT contract by Mr Randall Fletcher and Ms Lori Wilson and that the complaint that Ms Wilson made about me in November 2019 was to facilitate my exclusion from oversight of the contract which was one of my roles as Manager of Development Compliance and Support (DCS) team. This decision to transfer me to another team achieves the result of excluding me from anything to do with the subject contract and its management.

Chronology of events

  1. [13]
    The Respondent has provided a table setting out 'a chronology of relevant events and issues leading up to, and supporting, the decision to transfer Ms Phillips to the position of Program Manager (AT)'.[2]  I have read the information contained in the table and it reveals a reasonably complex series of events. The Respondent sets out a summary containing the 'most pertinent factors' arising from the chronology:[3]
  1. (a)
    The Appellant has been absent from the workplace since 25 May 2020.  Between 25 May 2020 and 1 September 2022, the Appellant provided medical certificates from her treating General Practitioner, Dr Margaret Cotter, which advised that the Appellant had a medical condition and was unfit for work for this period.[4]
  2. (b)
    The medical opinions of Dr Marcus Navin, Occupational Physician, outlined in an Independent Medical Examination report, dated 22 January 2021 (Dr Navin's IME report).[5]
  3. (c)
    The medical opinions of Dr Donald Grant, Psychiatrist, outlined in an Independent Medical Examination Report, dated 4 October 2022 (Dr Grant's IME report).[6]
  4. (d)
    The General Manager's duty of care obligations, under the Work Health and Safety Act 2011 (the WHS Act) to ensure, as far as reasonably practicable the safety, health and wellbeing in the workplace for all employees with in the TSP branch.
  5. (e)
    The Appellant is the subject officer of an employee grievance submitted by Ms Lori Wilson, Principal Program Advisor (DCS) in November 2019. This grievance remains unresolved and was placed in abeyance due to the Appellant's absence from the workplace.
  6. (f)
    The Appellant's fixation on her views of wrongdoing and fight for 'social justice' regarding a grievance she raised involving Ms Wilson's conduct in November 2019, despite the grievance being investigated and decisioned by the Respondent's Ethical Standards Unit (ESU) and other external agencies.
  7. (g)
    The recommendations and actions that resulted from a cultural review of the DCS team, conducted by an external consultant between August 2020 – October 2020.
  8. (h)
    The operational impacts of returning the Appellant to the DCS team in the capacity of AO8 Manager (DCS) after her extended period of absence and the unresolved interpersonal conflict between the Appellant and Ms Wilson.

Respondent's submissions

  1. [14]
    Ms Phillips reasons for appeal are set out above at [12]. The Respondent sets out its response to Ms Phillips' appeal points from paragraph 11 of its submissions.
  2. [15]
    With reference to the transfer proposal letter[7] and the decision letter,[8] the Respondent says that it has established that the transfer decision:
    1. Accords with the medical opinions and comments within Dr Grant's IME report and will provide the Appellant with a safe and sustainable return to the workplace after her extended period of absence from the workplace due to a medical condition;
    2. Is compatible with the Appellant's skills and experience and will afford the Appellant with the opportunity to contribute to exciting and valuable transport planning projects;
    3. Will have no detriment on the Appellant nor will she experience any hardship arising from the transfer; and
    4. is operationally effective, as opposed to returning the Appellant to the DCS team.
  3. [16]
    The Respondent refutes the allegation that the decision to transfer Ms Phillips is based on the matters she set out at 1(a)-(e) of her reasons for appeal and says that the transfer decision was made having regard to medical information and a range of factors spanning a number of years, as set out in the chronology table[9] it attaches to its submissions (and referred to above at [13]).
  4. [17]
    The Respondent says that the decision to transfer Ms Phillips was 'well considered' and will provide Ms Phillips with 'the opportunity to return to work in a position and team that will mitigate any risk of re-aggravation of her medical condition that led to her being unfit for duty for between 25 May 2020 and 1 September 2022'.[10] Further, the Respondent says that the transfer will help to ensure, as far as reasonably practicable, Ms Phillips' ongoing health, safety and wellbeing.
  1. [18]
    Furthermore, the Respondent says that Ms Phillips has not provided any compelling evidence, medical or otherwise, that refutes Mr Hannan's concern that returning her to the position of AO8 Manager (DCS) would not re-aggravate her previous medical condition.
  1. [19]
    The Respondent submits that it has come to its attention that Ms Phillips submitted a workers' compensation claim for a psychological injury on 27 October 2022, which the Respondent was officially  informed of on 9 November 2022.  The Respondent says that the claim was submitted after the transfer proposal letter was issued and the decision letter was provided and therefore it was not a consideration in the decision to transfer Ms Phillips to the AO8 Program Manager (AT) position. However, the Respondent 'respectfully asserts' that the claim demonstrates that Ms Phillips' former medical condition was more serious than she now asserts, and only strengthens the Respondent's concerns about 'the potential for re-occurrence of her former medical condition should she return to the DCS Team'.
  1. [20]
    While Ms Phillips continues to say that she is unaware of interpersonal conflict between herself and Ms Wilson, the Respondent says that the interpersonal conflict was openly discussed in a mediation process and referred to in a grievance outcome letter issued to Ms Phillips on 5 May 2020.  The Respondent also says that Ms Phillips is 'fully aware that Ms Wilson's grievance has not been resolved', and Ms Phillips continues to raise her grievance involving Ms Wilson with persons and agencies external to the Respondent.[11]
  1. [21]
    The Respondent says that the DCS team has embraced the recommendations and actions from the cultural review of the DCS team conducted between August 2020 and October 2020 and that the team is 'operating effectively and efficiently in the delivery of development compliance support services, internally and externally to the Respondent's portfolio, which by virtue of being a State Government department extends to the Queensland public'.[12]
  1. [22]
    The Respondent also submits that the reporting relationship between the position of AO7 Principal Advisor (DCS), which Ms Wilson holds, and the position of AO8 Manager (DCS) is set to be re-established subject to outcome of the present appeal and this will improve communication and workflow within the DCS team.[13]
  1. [23]
    Further, with regard to the relationship between Ms Phillips and Ms Wilson, the Respondent says, in summary:[14]
  • At the time Ms Phillips commenced sick leave on 25 May 2020, the relationship was in a fractured state.
  • Attempts to resolve the conflict between the two were unsuccessful.
  • Ms Phillips continues to seek a new outcome to her grievance involving Ms Wilson.
  • The Respondent has a 'firm view' that Ms Phillips cannot return to the position without there being an operational impact on the DCS team.
  1. [24]
    While the Respondent recognises that Ms Wilson and Ms Phillips are within their rights to raise grievances regarding workplace matters, it is the Respondent's responsibility to intervene, where possible, to ensure the grievances do not impact on other team members and the operations of the respective teams. The Respondent says that the transfer will achieve this as there will be no operational requirement for the two employees to interact in their respective positions as part of their work duties.
  1. [25]
    The Respondent acknowledges that Ms Phillips is not solely responsible for the conflict between herself and Ms Wilson but submits that Ms Wilson has continued to remain in the workplace and is 'well embedded in the DCS team as it currently operates'.[15]
  1. [26]
    The Respondent refutes Ms Phillips' appeal ground that the decision is in conflict with her human rights and that the Respondent has made 'untrue allegations' and attacked her reputation. The Respondent says, in summary:[16]
  • It is a fact that Ms Phillips has been absent from the workplace between 25 May 2020 and 1 September 2022 as she was deemed medically unfit to attend work.
  • Ms Phillips, through her general practitioner, confirmed this health status.
  • Ms Phillips applied for, and was approved to, receive income protection insurance throughout that period on that basis.
  • The transfer decision is made on the basis of the General Manager's  duty of care obligations under the WHS Act.
  • The Appellant's human rights have been appropriately considered as part of the decision-making process.
  1. [27]
    The Respondent refutes Ms Phillips' assertion that the transfer is reprisal action taken against Ms Phillips for raising her matters. The Respondent says that the actions and decisions taken throughout Ms Phillips' absence were consistent with its standard practice when an employee is absent from duty for medical-related reasons for a significant period of time but without any medical information to support their period of absence. 
  1. [28]
    The Respondent reiterates that the transfer decision was based upon the reasons set out above at [3] and submits that it was permitted under s 133 of the PS Act.
  1. [29]
    The Respondent says that the transfer decision was fair and reasonable when:
  • Having regard to the considered reasons articulated in the transfer proposal letter and the decision letter;
  • The natural justice afforded to Ms Phillips throughout the transfer process; and
  • The lack of suitable evidence that the transfer is likely to cause Ms Phillips significant detriment or exceptional hardship.

Ms Phillips' submissions

Background

  1. [30]
    Ms Phillips filed her submissions in reply on 8 December 2022.
  1. [31]
    From paragraph 2 of her submissions, Ms Phillips sets out the events which commenced from 18 November 2019 when she 'raised concerns about an irregular financial arrangement' made by her colleague, Ms Lori Wilson.  Ms Phillips says that she requested a meeting to discuss the matter with Mr Randall Fletcher, Executive Director, Transport System Management, to discuss the matter but says that the meeting never occurred.
  1. [32]
    Ms Phillips states that on 20 November 2019, Ms Wilson informed her that she had made a complaint about Ms Phillips to Human Resources (HR).  Ms Phillips says that she was not allowed to see the complaint during the process and still has not seen the complaint.
  1. [33]
    Ms Phillips submits that due to the complaint, Ms Wilson was temporarily removed from Ms Phillips' supervision on 17 December 2019 and that both Ms Phillips and Ms Wilson reported to Mr Batts and from 6 January 2020, to Mr Fletcher.
  1. [34]
    Ms Phillips says that the complaint Ms Wilson made resulted in Ms Phillips being removed from oversight of the contract and financial arrangements made for the contract she had raised concerns about (see above [31]).
  1. [35]
    Ms Phillips says that Ms Wilson's complaint was decided on 5 May 2020 and despite the fact that the allegations were decided to be unsubstantiated, the letter contained 'an expectation' that Ms Wilson would recommence reporting to Ms Phillips as her manager after Ms Phillips had signed an Employee Performance and Development Agreement (EPDA) which was to include 'clear role responsibility, performance and capability development requirements and priorities' for Ms Phillips.
  1. [36]
    Ms Phillips then describes the process which ensued to prepare an EPDA.  It is clear from Ms Phillips' submissions and the relevant attachments that she disagreed with the draft EPDA and declined to sign off on it.[17] Ms Phillips was advised by Mr Fletcher that if she was not prepared to sign off on the EPDA, he would make a notation that she declined to sign it, however the expectations set out in her EPDA would stand.[18]
  1. [37]
    Ms Phillips submits that on 25 May 2020, she commenced sick leave due to the 'duress' she was under. Ms Phillips says that she was 'isolated, excluded and subjected to continuous bullying behaviours throughout the complaint process and after the decision was made'.  Ms Phillips says that she was 'unable to cope anymore with the pressure and needed respite'.
  1. [38]
    Ms Phillips says that she had already made a possible public interest disclosure to Mr Trevor Chippindall, Director Ethical Standards Unit (ESU) on 7 April 2020 about the contract and the process followed for Ms Wilson's complaint against her.  Ms Phillips says that Mr Chippindall was 'aware and supportive' of her taking sick leave and says that she thought that the ESU 'would be able to assist me to find a pathway to resolution', though this did not turn out to be the case.

Interpersonal conflict between Ms Phillips and Ms Wilson

  1. [39]
    Ms Phillips submits that she is 'unaware' of the interpersonal conflict Mr Hannan keeps referring to and says that she has 'only ever been concerned to manage and develop my team so that the team produces high quality outcomes'.
  1. [40]
    Ms Phillips goes on to state that when Ms Wilson was appointed, it was known that she needed to develop some technical skills relevant to the role.  Ms Phillips says that any actions she took with regard to the Ms Wilson were 'to facilitate her development' of technical and other skills relevant to the role.[19]
  1. [41]
    Ms Phillips then goes on to outline issues regarding Ms Wilson's technical skills and development and says that she discussed this with Ms Wilson during her EPDA discussion and says that Ms Wilson agreed to work on her skills.[20]  Ms Phillips says that Ms Wilson was 'reluctant to receive feedback on her work' and that this is exemplified by exchanges between the two with regards to the Communication Plan for the eDAM Migration Project.[21] Ms Phillips says that the Communication Plan was also being discussed when Ms Wilson was 'disrespectful' on 20 November 2019.
  1. [42]
    Ms Phillips describes concerns she had about endorsing a Business Continuity Plan prepared by Ms Wilson in April 2020 and says she 'was very reluctant because the document was of low quality' and provided feedback 'under extreme duress'.[22]

Unresolved grievances between Ms Phillips and Ms Wilson

Ms Wilson's complaint

  1. [43]
    Ms Phillips sets out a range of concerns about Ms Wilson's complaint and the process associated with it, in summary:
  • The complaints procedure[23] requires initial attempts to address workplace issues be undertaken before an officer lodges a formal complaint and this did not happen.
  • Ms Wilson informed others of her complaint and each team member was required to meet with the Complaint Case Manager, where they were instructed not to speak about the complaint and told that if they discussed it, they could be subjected to disciplinary action.
  • This caused 'significant anxiety' to team members.
  • One team member told Ms Phillips that she thought Ms Wilson was 'using her complaint as a weapon'.
  • Ms Wilson 'went out of her way' to inform Ms Phillips that she had an 'urgent meeting' with HR on 2 December 2019.
  • Ms Phillips was very concerned about the complaint and tried unsuccessfully to find out about it.
  • Ms Phillips contacted Corporate HR on 12 December 2019 to find out about the complaints process because she believed actions being taken were not consistent with the procedure.
  • No one from Corporate HR contacted her.
  • Ms Phillips was not allowed to see Ms Wilson's complaint.
  • Ms Phillips was only informed that the substance of the complaint was that Ms Phillips was bullying and victimising her and using unreasonable management action against her.
  • Ms Phillips has still not seen the complaint.
  1. [44]
    Ms Phillips says that despite the complaint being used as one of the bases for Mr Hannan's decision to transfer her, it has still not been provided to her.
  1. [45]
    Ms Phillips says that the only action taken to manage Ms Wilson's complaint was a mediation, which she was informed about through the decision letter of 18 December 2019, amended on 13 January 2020. Ms Phillips was informed that the intention of the mediation process was to try to achieve healthy and productive relationships. Ms Phillips says that she was told that resolving the complaint was about 'looking forward' and she would not be given an opportunity to 'present my case or even be asked about what led to the complaint from my perspective'.[24]
  1. [46]
    Ms Phillips describes the mediation conducted by an external mediator/facilitator.  Ms Phillips said that a draft Mediation Agreement was prepared by the external mediator/facilitator but that Ms Wilson would not agree to any of its content. Ms Phillips goes on to describe a conversation she says she had with the external mediator/facilitator on 18 February 2020 where she says that  he told her that his report would recommend that Ms Wilson be moved to another team as he believed she would continue to agitate and external mediator/facilitator believed it was not a safe environment for Ms Phillips with Ms Wilson in the team.  Ms Phillips said that external mediator/facilitator told her he could see she had been undermined and said he would recommend support to assist Ms Phillips to manage problems which have arisen due to the complaint process and lack of management support in the past.
  1. [47]
    Ms Phillips says that external mediator/facilitator provided his report to Mr Fletcher and Ms Storm on 26 February 2020 and that despite her treating doctor requesting a copy of the report on 31 May 2021, it has remained concealed.
  1. [48]
    Ms Phillips says, 'no other actions were taken to resolve the complaint which festered in the workplace until 5 May 2020 when Mr Hannan made a decision'.[25]
  1. [49]
    Ms Phillips says that Mr Hannan's decision letter said that individual discussions which had occurred between herself and Mr Fletcher were considered in his decision-making.  With regard to this, Ms Phillips says, in summary:
  • Mr Fletcher repeatedly told her he had nothing to do with the complaint.
  • Mr Fletcher's reporting of individual conversations were not disclosed to her.
  • She had no opportunity to respond to Mr Fletcher's reporting of the individual conversations and this is not consistent with the complaints procedure and does not accord with natural justice.
  • As evidenced in Attachments 15, 16 and 17, conversations Ms Phillips had with Mr Fletcher were not a personal attack, rather Ms Phillips was raising issues about the quality of Ms Wilson's work, the scope of work she was being tasked with and that this is reasonable management action.
  • She refutes Mr Fletcher's claim that he had said she would not work with Ms Wilson.
  1. [50]
    Ms Phillips says that the outcome of the complaint was that the decision-maker determined that none of the allegations were substantiated and Ms Wilson's allegations did not meet the definition of workplace bullying defined by the relevant TMR document.[26] Ms Phillips does not know why that decision was not made before the complaint was progressed.
  1. [51]
    Ms Phillips says that there is no evidence of how Mr Hannan formed the view that there was 'interpersonal conflict'.  Ms Phillips says that the decision notice 'renamed' mediation as 'independent facilitation' and said that the independent facilitator had identified that some progress had been made towards restoring a respectful and productive working relationship between Ms Phillips and Ms Wilson but that the process did not result in any agreement. Ms Phillips said Mr Hannan's decision stated that the unresolved matters related to 'eDAM capability, role clarity and reporting relationships' and that this is inconsistent with external mediator/facilitator's report and 'could be confirmed if it were available'.[27]
  1. [52]
    Ms Phillips says that the 'unresolved matters' were a surprise to her because the only element of Ms Wilson's complaint that referred to role clarity in the summary provided to her by external mediator/facilitator was that Ms Wilson believed her main role was 'contract management'.  Ms Phillips says this is not consistent with Ms Wilson's position description or how her position was JEMS evaluated in March 2018.  Ms Phillips says that she created the role to fill a gap in the eDAM team.  Ms Phillips said that she described this to Mr Fletcher during meetings in April/May 2020 and that Mr Fletcher had told her that he had a different view as shown in the meeting notes she attached to her submissions.[28]
  1. [53]
    Ms Phillips says that she does not 'know or understand why Ms Wilson has been supported to choose the parts of her predefined position she wants to do and what parts she doesn't or who would fill the gaps that resulted from her not doing the parts of her role that she didn't want to do'.  Ms Phillips says that 'being enabled to do that' has had a significant impact on other DCS team members and led to a sense of injustice in the team.
  1. [54]
    Ms Phillips says that she was dissatisfied with the decision because she believed that the expectations detailed to her in the decision were unreasonable in the circumstances.  Ms Phillips sought to challenge the decision and was informed[29] that since she was the subject officer and not the complainant, she was not able to seek an internal review of the decision.  Ms Phillips says this was confirmed.[30]
  1. [55]
    Ms Phillips says that she was also refused reasons as to how Mr Hannan had formed a view that there was a relationship breakdown between herself and Ms Wilson or why he included 'expectations' of her in a decision where no allegations were substantiated.[31]

Actions of Ms Wilson following complaint decision of 5 May 2020

  1. [56]
    It appears that Ms Wilson sought an internal review of the outcome of her complaint and that she subsequently sought an external review of that decision by way of a public service appeal.  As I understand Ms Phillips' submissions, she believes that public service appeal was withdrawn on the basis that the Respondent would re-enliven the matters raised by Ms Wilson upon Ms Phillips' return to work.  It appears that Ms Phillips became aware of this agreement by way of submissions made in a separate General Protections application filed by Ms Phillips.
  1. [57]
    Ms Phillips says that she is unaware of any statutory provision or policies that allow for a complaint to be re-enlivened after the decision is made and the appeal period has ended, especially in a circumstance were a party affected by the decision has not been afforded natural justice about the decision.
  1. [58]
    Ms Phillips says that this arrangement 'supports Ms Wilson to pursue a complaint' about her that the decision-maker could not substantiate. Ms Phillips re-states her previous submission that external mediator/facilitator 'had recommended Ms Wilson's removal from the team, believing that she would continue to cause disruption'.  Ms Phillips says it is 'no wonder' Ms Wilson has become 'well-embedded in the DCS team' as submitted by the Respondent and that Ms Phillips has been 'unable to find a pathway to return to work'.

Report to supervisor about an irregular financial arrangement made by Ms Wilson with a vendor

  1. [59]
    Ms Phillips submits that when she made the report regarding her concerns about the 'irregular financial arrangement', she was assured by Mr Trevor Chippindall, Director, Ethical Standards Unit, that she would be afforded protection against reprisal. Ms Phillips says that Mr Chippindall 'provided me with guidance about what actions to take' and that she followed that guidance and 'I have been unable to find a pathway to return to the workplace safely'.[32]

 Concern about adverse impacts on DCS team culture if Ms Phillips returns to her substantive position

  1. [60]
    Ms Phillips says that the Respondent has not provided any information about why her returning to her substantive position would have an adverse impact on the overall team culture.  Ms Phillips addresses matters raised by the Respondent and says:
  • there is an unresolved grievance that Ms Wilson is expecting to be re-enlived upon my return to my substantive position.  This grievance has already been reviewed and none of the allegations were decided to be substantiated. The arrangement the Respondent made with Ms Wilson to re-enliven her complaint if she withdrew her appeal is detrimental to me.
  • I raised a concern about an irregular payment made by Ms Wilson and endorsed by Mr Fletcher which I am required to do under the Public Service Code of Conduct. Without giving reasons, Mr Chipindall decided not to deal with.
  • there is interpersonal conflict between Ms Wilson and myself. No description of this interpersonal conflict has been provided or consideration given that this perceived interpersonal conflict is actually reasonable management action taken by her Manager.[33]

Manager of high-performing and well-regarded team

  1. [61]
    Ms Phillips submits that she successfully managed a high-performance and high-quality outcome team and gives examples of outcomes she achieved prior to commencing sick leave on 25 May 2020.[34] Ms Phillips said that while she was manager, the team was well-regarded by stakeholders[35] and that the 'close-out' of her June 2018 EPDA in April 2020 demonstrates that she was successful in achieving 'all key deliverables'.[36]
  1. [62]
    Ms Phillips makes reference to an email she received from Ms Perry, Senior Human Resources Advisor on 18 October 2019.  The email states that Ms Phillips possesses 'the skills and capability to be a great manager'.  Ms Phillips says that the email from Ms Perry was in response to Ms Phillips raising concerns about 'secret meetings that Ms Wilson and Mr Batts were having and I was feeling that he was undermining me'.[37]

Cultural review initiated by Mr Hannan

  1. [63]
    Ms Phillips says that Mr Hannan initiated a cultural review of the DCS Team with the stated purpose to 'gain insights into the team over the past twelve months, acknowledging there has been significant change to the DCS team' and at the conclusion of the review forecast, that 'further management actions may be taken to support the team with a collaborative and positive workplace'.[38]
  1. [64]
    Ms Phillips says that she is unaware of any changes to the DCS team other than temporary reporting arrangements put in place as a consequence of Ms Wilson's complaint. Ms Phillips says she is unaware of actions that have been taken to support the team and that she was not aware that the team was not collaborative or positive.  Ms Phillips says that no reasons have been provided as to why Mr Hannan was 'so concerned about a team of 8-9 people in his entire branch and oversaw a Cultural Review of just that team'.[39]
  1. [65]
    Ms Phillips says that while the Respondent refers to 'recommendations and actions that resulted from a cultural review of the DCS team, conducted by an external consultant between August 2020 – October 2020', the report prepared by Mr Brady from Mapien is not attached and no 'actual actions' have been described.
  1. [66]
    Ms Phillips says that despite the cultural review taking place between August and October 2020, it was not until 18 February 2021 that Mr Hannan provided feedback about the project to the DCS team.  Ms Phillips attaches the slide presentation that was given and says that the DCS team were told that the first action to occur would be business planning.  Ms Phillips says that the business planning is yet to commence and that no other actions have been taken and that this is inconsistent with the Respondent's submission that 'The DCS team have embraced the recommendations and actions from the cultural review of the DCS team conducted between August 2020 and October 2020.'

Misrepresentation of Dr Grant's report

  1. [67]
    Ms Phillips says that the decision relies on misrepresentations of Dr Grant's assessment and recommendations.

The decision is in conflict with section 25 of the Human Rights Act 2019

  1. [68]
    Ms Phillips says that the decision relies on statements that are intentionally untrue.  Ms  Phillips says that no evidence has been provided to support the statements and says that the decision could be used in the future by someone who does not check it for factual correctness and could result in future detriment to her.

The decision is reprisal as defined in the Public Interest Disclosure Act 2010

  1. [69]
    Ms Phillips says that the decision to transfer her is reprisal 'because the reasons provided for the transfer damage my reputation and is adverse treatment about my employment'.

Further submissions of the Respondent

  1. [70]
    The Respondent filed further submissions on 20 December 2022.
  1. [71]
    In response to Ms Phillips' submissions about her effectiveness and achievements in the role prior to going on sick leave, the Respondent says that Ms Phillips' performance in her substantive role is not relevant to the decision to transfer her from the AO8 Manager (DCS) to the AO8 Program Manager (AT).
  1. [72]
    While Ms Phillips asserts that she has no awareness of 'interpersonal conflict' between herself and Ms Wilson, the Respondent says that Ms Phillips' submissions, including Attachments 2, 3 and 8, provide evidence that Ms Phillips is aware of the 'interpersonal conflict' between Ms Phillips and Ms Wilson. The Respondent says that Ms Phillips is aware that the matters between herself and Ms Wilson remain unresolved and point to Attachments 16 and 17 of Ms Phillips' submissions to demonstrate this.
  1. [73]
    The Respondent says that Ms Phillips' reference to matters 'festering in the workplace' is a further acknowledgement that there are unresolved matters between Ms Phillips and Ms Wilson.
  1. [74]
    While Ms Phillips says that she is unaware of the nature of the complaint made by Ms  Wilson against her, the Respondent says that Ms Phillips' submissions demonstrate that she is aware of the nature of the complaint.[40]
  1. [75]
    The Respondent says that the nature of the complaint and the matters raised in the complaint were shared with Ms Phillips in a letter dated 18 December 2019,[41] and during the mediation process involving Ms Phillips and Ms Wilson between January 2020 and 18 February 2020.[42] Further, the Respondent says that Directive 02/17 Managing Employee Complaints, which was in place at the time of Ms Wilson's complaint and is referenced in Ms Phillips' submissions, makes no provision for providing a complaint document to the subject officer as part of the complaint process.
  1. [76]
    The Respondent says that the Directive explicitly states that when managing an employee complaint, it must be done in a way that protects the privacy of the employee who has made the complaint and that by not providing the complaint document, the Respondent is adhering to the requirements of the Directive and managing Ms Wilson's private information in accordance with the Privacy Act 2009 (Cth).
  1. [77]
    The Respondent says that Ms Phillips continues to request to see the actual complaint document provided by Ms Wilson to the Respondent and holds the view that without it, she is unaware of the matters raised and has not been able to respond accordingly.  It is the Respondent's position that given the level of detail provided to Ms Phillips through to the complaint management process and during the mediation process, Ms Phillips is well advised of the matters raised in the complaint and has been afforded natural justice throughout the process to adequately understand the matters raised against her and respond accordingly.
  1. [78]
    The Respondent says that the complaint made by Ms Wilson is not the basis for the decision to transfer Ms Phillips.  The Respondent says that the contributing factors are:

…that Ms Wilson and the Appellant were not able to reach an agreement on how to restore the working relationship during their mediation process and that matters between Ms Wilson and the Appellant remain unresolved, meaning their 'interpersonal conflict' remains.[43]

  1. [79]
    The Respondent notes that 'to date neither the Appellant nor Ms Wilson have indicated a willingness to withdraw their respective complaints about each other'.[44]
  1. [80]
    In response to Ms Phillips' submissions that Ms Wilson could not perform her role to the required standards of Ms Phillips, the Respondent states that Ms Wilson's ability is not relevant to the decision to transfer Ms Phillips but notes, 'the Appellant's view on Ms Wilson's performance has contributed to the strained relationship between Ms Wilson and the Appellant and to date this has not been resolved'.[45]
  1. [81]
    The Respondent refers to Ms Phillips' statement in the email to Mr Fletcher which is Attachment 16 to her submissions that, 'This arrangement is a no-win situation for me and will contribute to my already increased stress levels because of the unresolved complaint process and also concern about the welfare of the DCS team' and says that this confirms that she is aware of the unresolved matters between herself and Ms Wilson, and relevantly supports the Respondent's decision to transfer Ms Phillips.  The Respondent says that the decision is in line with the Respondent's duty of care obligations under the WHS Act to provide Ms Phillips with safety, health and wellbeing as far as reasonably practicable.
  1. [82]
    In response to Ms Phillips' submission that she is only concerned with managing the DCS team, the Respondent says that the expectations noted in the outcome letter were issued in good faith, with the intention of restoring the working relationship between Ms Phillips and Ms Wilson, so they could both move forward, and Ms Phillips could effectively manage the DCS team. The Respondent considers that the expectations were reasonable given the mediation process had not been successful.
  1. [83]
    With regard to Ms Phillips' submissions that she had had discussions with the external mediator/facilitator about the mediation process and the inference that Ms Wilson was obstructionist and the reason for no agreement being reached, the Respondent says that this is not consistent with information held by the Respondent.
  1. [84]
    Ms Phillips said that she had been 'isolated, excluded and subject to continuous bullying behaviours'. The Respondent says that the following action taken or decisions by the Respondent are all reasonable management actions taken in a reasonable way:
  1. (a)
    Amending the reporting relationship between the Appellant and Ms Wilson while the complaint was being managed.
  2. (b)
    Removing the Appellant's oversight of the contract which was the subject of the Appellant's complaint against Ms Wilson.
  3. (c)
    Implementing a mediation process, with an external consultant, between 20 January 2020 and 18 February 2020 to support the Appellant and Ms Wilson to resolve their matters.
  4. (d)
    The finding that the Appellant's conduct had not met the threshold of workplace bullying but a finding that there was evidence of interpersonal conflict between the Appellant and Ms Wilson.
  5. (e)
    Issuing expectations in the outcome letter dated 5 May 2020 regarding, amongst other things, establishing role clarity via an Employee Development Plan Agreement (EDPA).
  6. (f)
    Extensive attempts made with the Appellant to re-establish the Appellant's EDPA.
  1. [85]
    With regard to Ms Phillips' submissions about the cultural review, the Respondent says that Ms Phillips was absent at the time the review was undertaken and while invited to participate, denied the invitation on advice of her treating practitioner.  On this basis, the Respondent says that any comments Ms Phillips makes about the cultural review are unfounded.  The Respondent says that the DCS team has made considerable progress with respect to the themes noted in the presentation Ms Phillips attached to her submission. The Respondent considers that Ms Phillips' return would have adverse operational impacts on the DCS team, noting the unresolved interpersonal conflict between Ms Wilson and Ms Phillips, despite Ms Phillips' views on this and her lack of acceptance that it exists and remains unresolved.
  1. [86]
    Finally, the Respondent says that the transfer decision was made for the reasons set out above at [3] and that Ms Phillips' dissatisfaction with the following do not establish a reasonable ground for refusing the transfer:
  1. (a)
    the nature of Ms Wilson's complaint;
  2. (b)
    the Management of Ms Wilson's complaint;
  3. (c)
    the subsequent management decisions to resolve Ms Wilson's complaint; and
  4. (d)
    the outcome of the Appellant's Public Interest Disclosure.

Ms Phillips' further submissions

  1. [87]
    Ms Phillips makes a submission about what she believes the purpose of section 133 of the PS Act is and says that she believes the section is 'used by departments where transfers are part of workforce planning' and where the 'possibility of being transferred is an employment condition'.  Ms Phillips says that in those departments, there are 'guidelines and pre-determined criteria' for decision-makers to use when considering the possibility of transferring employees.  Ms Phillips says that there is 'little guidance' about the use of s 133 and that the Respondent does not have a policy about s 133, the Enterprise Bargaining Agreement does not contemplate position transfers and the Public Service Commission does not have a directive about s 133 decisions.
  1. [88]
    Ms Phillips contends that she was not provided natural justice because she was not provided with reasons for the proposal to transfer her.
  1. [89]
    Ms Phillips maintains that there is no evidence of interpersonal conflict between herself and Ms Wilson and that it is unreasonable for Mr Hannan to determine that interpersonal conflict exists. Ms Phillips says that Mr Hannan's determination that there is interpersonal conflict between Ms Phillips and Ms Wilson means that there is a potential for bias in decision-making and suggests that there may be a conflict of interest in Mr Hannan relying on his 'own opinion from a previous decision as a basis for his current decision'.
  1. [90]
    Ms Phillips says that Dr Grant, who conducted the IME was provided with her substantive position description and that his report states that Ms Phillips 'misses her colleagues'; 'loved going to work prior to the development of these issues'; 'is ready to make whatever effort is necessary to return to the workplace'; 'is currently able to attend work'; and 'there is no psychiatric indication that Ms Phillips could not perform the full range of duties'.   Ms Phillips says that allowing her to return to her substantive position accords with Dr Grant's advice and does not isolate her from her colleagues.
  1. [91]
    Ms Phillips says that Mr Hannan states in the decision that transferring her will avoid any unnecessary disruption to the DCS team, but that he does not provide any reasons for his assessment that returning to her substantive position will cause disruption.  Ms Phillips provides the example of women returning from extended maternity leave and officers taking extended leave or temporary secondments and says that such people are 'not accused of causing a disruption on their return to their substantive position'.
  1. [92]
    Ms Phillips makes further submissions regarding the interpersonal conflict Mr Hannan states exists and her dissatisfaction with the handling of the complaints process and Ms Wilson's grievance.  I note that I have read all of these submissions and that they largely build on matters raised in Ms Phillips' appeal and previous submissions.
  1. [93]
    With regard to Mr Hannan's statement regarding his duty of care obligations under the WHS Act, Ms Phillips says that the transfer does not provide her with a safe workplace, rather it avoids examination of past procedural failures.
  1. [94]
    Ms Phillips repeats her submission that Mr Hannan has misrepresented Dr Grant's report.  Ms Phillips lists a number of statements from the report which she says do not support a conclusion that she has a mental illness.  Ms Phillips says that Mr Hannan's 'inability to accept that I don't have a mental illness is disturbing and feels personal'. The statements Ms Phillips says do not support Mr Hannan's conclusion that he is concerned for her safety upon her return to the workplace are:
  1. (a)
    "As far as I could tell from her history, her anxiety symptoms were understandable in the context of the events that were occurring and that, over time, those anxiety and stress symptoms settled."
  2. (b)
    "It is possible that she could be seen, at that stage, as having a mild Adjustment Disorder with anxiety. However, it is more likely that the symptoms that she experienced would be seen as reasonable in the difficult circumstances which she had experienced and was continuing to experience."
  3. (c)
    "She has some degree of realistic despair about issues that she has had to deal with, and some realistic anxiety about her situation.  However, that has not been of clinical significance and has not led to any more severe symptoms."
  4. (d)
    "It is possible that, in the earlier stages of her absence from work, she had a mild Adjustment Disorder with anxiety.  However, it is equally possible that, even then, the degree of symptoms might have been seen to be understandable in the circumstances and not reaching a clinical diagnostic threshold."
  5. (e)
    "There is no current psychiatric diagnosis. It is possible that, in the earlier stages when Ms Phillips first went off from work, that there was a degree of Adjustment Disorder with anxiety.  This would have stemmed from stressful conditions in the workplace, of which Human Resources will be quite aware."[46]

Relevant principles

  1. [95]
    The PS Act relevantly provides:

Part 3 Transfers and redeployment

133 Chief executive's power to transfer or redeploy

  1. (1)
    The chief executive of a department may transfer or redeploy a public service officer of the department within the department.

...

  1. (4)
    The transfer or redeployment of a public service officer under this section—
  1. (a)
    may involve a change in the location where the officer performs duties; and
  2. (b)
    if the officer is employed on contract—has effect despite anything in the contract.

134 Consequence if transfer refused

  1. (1)
    If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer's chief executive.
  2. (2)
    If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive's satisfaction, the chief executive may terminate the officer's employment by signed notice given to the officer.
  3. (3)
    If the officer establishes reasonable grounds to the chief executive's satisfaction—
  1. (a)
    the transfer is cancelled; and
  2. (b)
    the refusal must not be used to prejudice the officer's prospects for future promotion or advancement.
  1. [96]
    The Department of Transport and Main Roads Human Resource Management Delegation Manual - Number 17 November 2022  relevantly provides:

Level 3: General Managers', Chief Engineer, Chief Finance Officer, Chief Information Officer, Chief Transport Network Security Officer and Executive Project Director delegated powers

The following powers excluding levels 3a and 3b are delegated to the General Managers, the Chief Engineer, the Chief Finance Officer, the Chief Information Officer, the Chief Transport Network Security Officer and the Executive Project Director:

…

  • All workforce decisions for employees and roles within their area of control except those matters which are exclusive to the Director-General, Deputy Directors-General and the Chief People and Culture Officer. All workforce decisions are to be made in accordance with associated and relevant legislation, industrial instruments, directives and departmental policies and procedures.
  1. [97]
    The manual defines 'workforce decisions' as follows:

Workforce decisions are any determinations or actions that affect employees, positions or structure. These include, but are not limited to, decisions in relation to appointments and engagements, advertising (including the decision not to advertise after six months up to 12 months) and expressions of interest, employment benefits and entitlements, time and attendance, performance management and disciplinary actions (including suspension with or without remuneration), guaranteed transfer out, establishment management and excludes early retirement, redundancy and retrenchment'.

What decisions can an Industrial Commissioner make?

  1. [98]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Was the decision fair and reasonable?

  1. [99]
    I first turn to the reasons for appeal set out by Ms Phillips in her appeal notice.

Appeal ground 1: Reasonable reasons for deciding to transfer Ms Phillips to another position have not been established

Adequacy of reasons

  1. [100]
    It is clear from the material before me that Ms Phillips is not satisfied with the reasons given by Mr Hannan in his decision letter.  I note that Ms Phillips sought further reasons and was told that Mr Hannan had provided his reasoning via a meeting held with Ms Phillips and in the correspondence proposing the transfer.  Having reviewed all of the material, I find that the decision letter contains a detailed explanation for Mr Hannan's decision and, even if Ms Phillips disagrees with the content, I am satisfied that she has received an adequate statement of reasons to understand why the decision was made.
  2. [101]
    I am satisfied that Ms Phillips received natural justice with regard to the decision.  Ms Phillips was provided with the proposal to transfer her and given an opportunity to respond.  Ms Phillips' provided a response and the decision letter demonstrates that her response was considered by the decision-maker.

Reasonableness of reasons

Dr Grant's report

  1. [102]
    Ms Phillips says that Dr Grant's report has been misrepresented.  It is true that Dr Grant's report clears Ms Phillips for return to work. However, Dr Grant's report also states that Ms Phillips had told him that the health issues she suffered arose from workplace issues and difficulties in the workplace (for example, the statements set out above at [94]). The material before me demonstrates that to the extent that such issues or difficulties relate to the working relationship between Ms Phillips and Ms Wilson, there are matters which remain unresolved.
  2. [103]
    I find that in circumstances where Dr Grant has determined that Ms Phillips is able to return to work but also identifies that workplace issues were the cause of her absence from work due to ill health, it was reasonable for Mr Hannan to hold concerns about Ms Phillips' 'safety, health and wellbeing' upon her return and to take steps to fulfil his duty of care obligation under the WHS Act. I do not find that Mr Hannan has misrepresented Dr Grant's report. Rather, Mr Hannan referred to the report as one part of the material which informed his decision. It was reasonable for Mr Hannan to consider Dr Grant's report in the context of the matter, including the history of events leading to Ms Phillips commencing her absence from the workplace due to ill-health on 25 May 2020.

Ms Phillips' submission that Mr Hannan's decision contains 'misleading statements' and that real and substantiated evidence has been 'concealed'

  1. [104]
    Having read each of the parties submissions, descriptions of key events and documents,  and the associated attachments provided in support the submissions, I have identified a number of matters where Ms Phillips and the Respondent are in disagreement.  It is clear that Ms Phillips has been dissatisfied with actions taken by various officers of the Respondent and offers a different version of what occurred with regard to particular complaints or management decisions.  It is not unusual to be presented with submissions which offer two 'versions' of what occurred, or what was reasonable.  I have not identified any 'misleading' statements in Mr Hannan's decision. While I understand that there are documents Ms Phillips has requested and not been provided with, I do not accept that the Respondent has 'concealed' evidence from the Commission.
  2. [105]
    Mr Hannan's decision clearly arose from the consideration of a range of factors including health and safety, operational considerations and what he considered to be a 'safe and sustainable' pathway for Ms Phillips to return to work.

Ms Phillips' submission that there is no evidence of interpersonal conflict between herself and Ms Wilson and that she has not received a copy of the complaint

  1. [106]
    Having read the submissions and associated attachments, I am satisfied that there are unresolved matters pertaining to workplace communication and the working relationship between Ms Phillips and Ms Wilson. Ms Phillips complains that she has not been provided with a definition of 'interpersonal conflict' and that she does not know what is being suggested or assumed by Mr Hannan when he refers to interpersonal conflict.
  2. [107]
    'Interpersonal' is defined as 'relating to relationships between persons'[47] and 'conflict' is defined variously as 'a battle or struggle'; 'controversy'; 'a quarrel'; 'discord of action, feeling or effect'; or 'antagonism'.[48] I find that the ordinary meaning of the term 'interpersonal conflict' is an apt description of the issues which had arisen between Ms Phillips and Ms Wilson prior to 25 May 2020. One only need look to the different descriptions of the outcome of the external mediation or facilitated discussion between the two to identify that there was 'interpersonal conflict' and it remains unresolved.  Other compelling evidence of 'interpersonal conflict' can be found in the complaint and counter-complaints being made by them and Ms Phillips' ongoing dissatisfaction with the outcome of the complaint. The language and tone used in communication between the women and also in Ms Phillips' communication about Ms Wilson are further indicators that there remains unresolved 'interpersonal conflict'.
  3. [108]
    Ms Phillips has expressed concern about Ms Wilson's complaint and the way it was handled, however these concerns do not negate the fact that a complaint was made, that the actions taken to resolve the issues arising from the complaint were unsuccessful and that there are issues that remain unresolved. 
  4. [109]
    I understand from her submissions that Ms Phillips is aggrieved that the Respondent agreed to revisit the outcome of the complaint made by Ms Wilson as a result of discussions between the Respondent and Ms Wilson surrounding her application for an external review.   It seems to me, that the decision to revisit the complaint was made on the basis of a discussion in conciliation at the Commission.  The outcome of an external review application to the Commission may well have been an order that the complaint outcome be set aside and that the complaint be returned to be reconsidered or that the Commission substitute its own decision. This could also have been the outcome of an internal review.  If decisions were unable to be changed, there would be little point in seeking to review them. This is not a circumstance where the decision subject of the request for internal review was a disciplinary decision concerning Ms Phillips.  If it were, I would understand that she would be aggrieved at it being reopened, or the decision changed, without an opportunity to first be heard.
  5. [110]
    Even if the complaint was not being enlivened upon Ms Phillips' return and had been left as it was, closed with a finding that none of the behaviours Ms Wilson complained of represented bullying or harassment, the interpersonal conflict and issues remain. 
  6. [111]
    I find it is entirely implausible that Ms Phillips is genuinely unaware of the interpersonal conflict between herself and Ms Wilson.  Even if, as Ms Phillips suggests, Ms Wilson's complaints about her were simply the result of 'reasonable management action' being taken against her, it does not negate the fact that conflict exists.  Ms Phillips complains that she has never been given the complaint, but I note that there was no requirement for the complaint to be given to her,  and as best I can understand it, while the complaint was never a basis for a disciplinary show cause process and Ms Phillips was made aware of the substance of the complaint at various times.
  7. [112]
    I find that it was reasonable for Mr Hannan to decide that there was unresolved interpersonal conflict between Ms Phillips and Ms Wilson and to take this into account in making his decision about the best path for Ms Phillips to return to work.

Ms Phillips contends that the decision appears to be based on a belief that transferring her to another position will somehow resolve grievances

  1. [113]
    I can find no evidence of a belief on the part of Mr Hannan that the transfer will resolve the grievance.  It is clear to me that Mr Hannan has sought a solution which will avoid placing Ms Phillips and Ms Wilson in the same team so as to give Ms Phillips an opportunity to recommence work in a team where there is no history of known interpersonal conflict. Mr Hannan has also taken into consideration that the team has been operating without the presence of the conflict between Ms Phillips and Ms Wilson since May 2020 and that Ms Phillips' return would be likely to impact on the DCS team.  Neither a transfer of Ms Phillips to a team where she has no known history of interpersonal conflict, nor the avoidance of a potential operational impact on the DCS team will resolve the grievance, rather they are management actions being taken by Mr Hannan cognisant of unresolved grievance.

Ms Phillips contends that Mr Hannan's concern that her return will have an adverse impact on the team is unsubstantiated and disagrees that she alone would be responsible for an adverse impact occurring

  1. [114]
    One of the difficulties which confronts managers when attempting to put in place management actions following interpersonal conflict is that the only way to 'test' or 'substantiate' a concern that the return of a party to the conflict after an absence from the workplace may have an adverse impact on a team, or the individual returning, is to return to the status quo and wait to see what happens. It appears that Mr Hannan has considered the situation, determined that there is a likelihood that Ms Phillips' return to the team may prove disruptive for the team, and further, that a return to the status quo may risk Ms Phillips' safety and wellbeing.
  2. [115]
    I cannot find evidence that Mr Hannan determined that Ms Phillips 'alone' would be responsible for any adverse impact.  Rather, Mr Hannan is in a situation where Ms Wilson has continued working in the team since May 2020, he is satisfied with the work the team is doing and the steps that have been taken towards developing a positive culture in the team.  Mr Hannan has determined that in circumstances where Ms Phillips has been absent from the workplace and is returning, it is more appropriate for Ms Phillips to be transferred.  This does not appear to be an attribution of blame or a disciplinary measure.  It appears to be a practical solution which addresses Mr Hannan's operational concerns for the DCS team and his concern for ensuring Ms Phillips health and safety as far as possible.
  3. [116]
    Ms Phillips has made submissions that her return to the team would be no more likely to cause disruption than the return of someone from extended maternity leave or an extended secondment.  Ms Phillips' situation can be easily distinguished from the examples she provides.  The return of someone from any form of leave or secondment may be deemed to have the potential to lead to adverse effects for both team members and the person returning, in circumstances where there is unresolved interpersonal conflict between the individual returning and a member or members of the team. 
  4. [117]
    I find it is reasonable for Mr Hannan to hold concerns that the return of Ms Phillips to the team may result in adverse impacts for both the DCS team and Ms Phillips' health and safety.

Appeal Ground 2: Ms Phillips contends that the decision is in conflict with section 25 of the Human Rights Act 2019 (HRA)

  1. [118]
    Section 25 of the Human Rights Act 2019 provides that:

A person has the right –

  1. (a)
    not to have the person's privacy, family, home or correspondence unlawfully or arbitrarily interfered with;  and
  2. (b)
    not to have the person's reputation unlawfully attacked.
  1. [119]
    I understand Ms Phillips' argument to be that Ms Wilson's complaint about her is unfounded and that Mr Hannan has decided to transfer her on the basis of 'untrue allegations'.  Ms Phillips also appears to argue that Mr Hannan's decision to transfer her based on his concern that the previous workplace conflict gave rise to absence due to mental illness and a decision that her return to the team may have an adverse impact on team culture is an unlawful attack on her reputation.
  2. [120]
    I set out the Respondent's submissions regarding this ground of appeal at [26] above.
  3. [121]
    I am unable to find that there has been an unlawful attack on Ms Phillips as a result of Mr Hannan's finding that she was medically unfit to attend work between 25 May 2020 and 1 September 2022.  The facts demonstrate that Ms Phillips' general practitioner consistently provided her with medical certificates during this period of time deeming her unfit to attend work.  Ms Phillips appears to have received income protection insurance as a result of her being medically unfit to attend work.  Dr Grant's IME report indicates that the workplace issues leading up to 25 May 2020 gave rise to a possible adjustment disorder with anxiety.
  4. [122]
    As I have discussed above, Mr Hannan has determined that a return to the team may lead to an adverse impact on the team but also on Ms Phillips' health.  This is a finding that was open to him and I cannot identify a statement in the decision that suggests that Ms Phillips would intentionally cause an adverse impact on the team.  I cannot identify an unlawful attack on Ms Phillips' reputation as a result of the reasoning of Mr Hannan in the decision letter.

Appeal Ground 3: Ms Phillips says that the transfer is a reprisal

  1. [123]
    There is no evidence before me that the transfer decision has been made for any reason other than those set out by Mr Hannan in the decision letter.
  2. [124]
    If Ms Phillips believes that there has been reprisal and/or adverse action taken against her, there are other avenues for her to take his up.

Conclusion and order

  1. [125]
    Having considered each of Ms Phillips' reasons for appeal as set out in her appeal notice and submissions above from paragraphs [30] to [69] and [87] to [94], I find that the decision of Mr Hannan to transfer Ms Phillips from the position of AO8 Manager (DCS) to AO8 Program Manager (AT) was fair and reasonable.
  2. [126]
    While I understand that Ms Phillips is dissatisfied with the decision, I find that Ms Phillips was provided with opportunity to consider the transfer proposal and to provide grounds for refusing the transfer. It was reasonable for Mr Hannan to determine that Ms Phillips had not established reasonable grounds for refusing the transfer.[49]  Ms Phillips submits that there was potential for bias or a conflict of interest in the decision as Mr Hannan had been involved in previous decision-making regarding Ms Phillips.  I have not identified any bias in the decision-making and I find that it was reasonable for Mr Hannan to base the transfer decision on all of the material available to him, including his own knowledge of the history of the matter.
  3. [127]
    I accept that Mr Hannan's decision was made for the reasons he sets out in the decision and that each element of the reasons for decision set out above at [3] – [6] above were open to Mr Hannan and were fair and reasonable.
  4. [128]
    The decision appealed against is confirmed.
  5. [129]
    I order accordingly.

Order

The decision appealed against is confirmed.

Footnotes

[1] Ms Phillips makes submissions regarding the purpose of s 133 of the Public Service Act 2008 (see [89] of this decision), however I am satisfied that s 133 provided Mr Hannan with the capacity to transfer Ms Phillips.

[2] Respondent's submissions filed 30 November 2022, [4]; Attachment 5.

[3] Ibid [4].

[4] Attachment 6 is a 'List of medical certificates the Respondent is in receipt of received from Ms Phillips May 2020 to 1 September 2022'.

[5] Attachment 7 is Dr Navin's IME report dated 22 January 2021.

[6] Attachment 8 is Dr Grant's IME report dated 4 October 2022.

[7] Respondent's submissions filed 30 November 2022, Attachment 3.

[8] Ibid Attachment 4

[9] Ibid Attachment 5.

[10] Ibid [11](c).

[11] Ibid [11](e).

[12] Ibid [11](f).

[13] Ibid.

[14] Ibid [11](g).

[15] Ibid [11](i).

[16] Ibid [11](j).

[17] Appellant's submissions filed 8 December 2022, [10]-[12]; Attachment 8.

[18] Ibid Attachment 8.

[19] Ibid [15].

[20] Ibid Attachment 20.

[21] Ibid Attachment 21

[22] Ibid Attachment 22.

[23] Ibid Attachment 10 Department of Transport and Main Roads Managing Employee Complaints Procedure cl 7.5.1.

[24] Ibid [24].

[25] Respondent's submissions filed 8 December 2022, Attachment 13.

[26] Guide to Preventing and Responding to Workplace Bullying, Sexual Harassment and Unlawful Discrimination.

[27] Appellant's submissions filed 8 December 2022, [33].

[28] Ibid [34].

[29] Ibid Attachment 5.

[30] Ibid Attachment 18.

[31] Ibid Attachment 5.

[32] Ibid [47].

[33] Ibid [48].

[34] Ibid [49].

[35] Ibid [50].

[36] Ibid [51].

[37] Ibid [52]; Attachment 31.

[38] Ibid [53]; Respondent's submissions filed 30 November 2022, Attachment 30.

[39] Appellant's submissions filed 8 December 2022, [54].

[40] The Respondent specifically refers to paragraphs [22], [25], [26] and [27] of Ms Phillips' submissions.

[41] Appellant's submissions filed 8 December 2022, Attachment 13.

[42] Appellant's submissions filed 8 December 2022, Attachment 14.

[43] Respondent's closing submissions filed 20 December 2022, [10].

[44] Ibid [11].

[45] Ibid [12].

[46] Ms Phillips' submissions filed 20 December 2022, [13].

[47] Macquarie Dictionary (online at 16 December 2022) 'interpersonal'.

[48] Ibid 'conflict'.

[49] Public Service Act 2008 s 134(1).

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Editorial Notes

  • Published Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2023] QIRC 19

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    20 Jan 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
Phillips v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 1182 citations
1

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