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  4. Whitson v State of Queensland (Department of Education) - [2023] QIRC 202

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Whitson v State of Queensland (Department of Education)[2023] QIRC 202

Whitson v State of Queensland (Department of Education)[2023] QIRC 202

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Whitson v State of Queensland (Department of Education) [2023] QIRC 202

PARTIES:

Whitson, Dean

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/78

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

13 July 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 – appellant employed by the respondent as Head of Department (Physical Education) at Coolum State High School – where the appellant has been absent from the workplace due to illness and/or injury from mid-2018 – where the appellant appeals an internal review decision upholding a local action decision relating to the appellant’s grievances – decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

Individual Employee Grievances (Directive 11/20) cls 6, 9

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

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

Workplace Health and Safety Act (Qld) ss 19, 29

Reasons for Decision

Introduction

  1. [1]
    Mr Dean Whitson (‘the Appellant’) is employed by the State of Queensland (Department of Education) (‘the Respondent’) as Head of Department (Physical Education) at Coolum State High School.
  1. [2]
    Mr Whitson appeals the internal review decision of Ms Rachel Borger, Executive Director, Integrity and Employee Relations, Department of Education (‘the decision-maker’), dated 5 April 2023 which upholds the Stage 1 – Local action decision of Ms Lois Craig, Director of Human Resource Business Partnering, North Coast Region, dated 20 January 2023.
  1. [3]
    For context, Mr Whitson has been absent from the workplace due to illness and/or injury since mid-2018.

The internal review decision

  1. [4]
    On page one of Ms Borger’s letter informing the Appellant of the internal review decision, she summarises her understanding that Mr Whitson is aggrieved by an administrative decision which he believes is unfair and unreasonable, as outlined in his grievance submitted on 20 December 2022.

Scope of the internal review

  1. [5]
    The decision-maker then refers to the Stage 1 – Local action decision of 20 January 2023 regarding Mr Whitson’s grievance. On pages one and two of her letter, the decision-maker refers to Ms Craig’s local action decision with regard to grievances one to five:

Grievance one:   Failure to follow the prescribed Workplace Rehabilitation Procedure 4.2 and the responsibilities contained within;

In response to Grievance one, Ms Craig determined it was more probable than not, ‘the region has taken reasonable and necessary actions in relation… to your absence from the workplace’.

Grievance two:   Providing false and misleading information to investigating agencies including WorkCover and Q Comp and IME doctor (2020) referral;

Ms Craig determined you were afforded natural justice during each individual process.

Grievance three:   Failing to adhere to prescribed complaint timelines and policy timelines and processes;

In response to Grievance three, Ms Craig determined you were regularly contacted throughout on the status of each of your processes.

Grievance four:   Failing to provide a safe workplace; and

In response to Grievance four, Ms Craig states ‘your claim/s have not been accepted and no new evidence has been provided by you to support this assertion’.

Grievance five:

Failing to adhere to information provided from Independent Medical Examination specialist.

Ms Craig determined ‘… region is complying with the report and the course of action letter to you dated 19 December 2022 outlines the next steps for your return to work.’

  1. [6]
    The decision-maker then turns to the Stage 2 – internal review request. Ms Borger confirms that she has been delegated the authority to complete the internal review and that she has no prior knowledge of Mr Whitson’s matter to ensure him of the integrity of the internal review decision.
  1. [7]
    The decision-maker identifies that as stated in Individual Employee Grievances (Directive 11/20), the purpose of an internal review is ‘to determine whether the decision made through local action was fair and reasonable in the circumstances.’ Ms Borger notes that ‘the test is not whether the decision could have been undertaken in a manner that was fairer or reached a decision that was more reasonable, simply whether it was ‘fair and reasonable in the circumstance’. Ms Borger clarifies that processes do not need to be perfect or ideal to be considered fair and reasonable.[1]
  1. [8]
    On pages two and three of the letter, the decision-maker sets out the evidence and documentation she considered in undertaking the internal review.
  1. [9]
    From there, Ms Borger outlines a number of matters that the Department says are outside of the scope of Mr Whitson’s individual employee grievance and therefore the internal review, namely:
  • A direction decision relating to Mr Whitson’s mental and physical incapacity;
  • The outcome of Mr Whitson’s privacy complaint at Coolum State High School; and
  • Mr Whitson’s WorkCover claim and subsequent review by the Workers’ Compensation Regulator.
  1. [10]
    Ms Borger advises the Appellant that ‘In consideration of the totality of this matter, I have decided Ms Craig’s Local Action Decision dated 23 January 2023 was fair and reasonable in the circumstances’. On pages three to six of the letter, Ms Borger sets out the reasons for which the local action decision was fair and reasonable with respect to Mr Whitson’s grievances.

Grievance one

  1. [11]
    The decision-maker begins by explaining that Mr Whitson’s concerns regarding privacy and medical information relating to mental and physical incapacity under the Public Service Act 2022 (Qld) ch 3, pt 8, div 5 are outside of the scope for the internal review.
  1. [12]
    Ms Borger reiterates that the Department is committed to working with Mr Whitson on his health, safety and wellbeing with a view towards assisting him to transition back to his role as Head of Department. The decision-maker encourages Mr Whitson to work with the North Coast Region in this regard.

Grievance two

  1. [13]
    Ms Borger again explains that Mr Whitson’s concerns regarding WorkCover, Q-Comp and Independent Medical Examination processes are outside of the scope of the internal review as they each have their own jurisdictional right of appeal. She encourages Mr Whitson to work with his Rehabilitation and Return to Work Coordinator at North Coast Region to facilitate his return to work.
  1. [14]
    Ms Borger concludes that in her view, ‘Ms Craig’s decision was fair and reasonable on the basis that in each of these processes, you were provided the right to natural justice and a right to appeal the decisions made’.

Grievance three

  1. [15]
    Ms Borger addresses Mr Whitson’s statement that ‘… Complaints being lost, passed from one officer to another without action should be appropriately acknowledged…’. In summary, the decision-maker:
  •  Acknowledges that individual employee grievance processes can take time, especially where multiple grievances are listed;
  • Says she is satisfied that Ms Craig has taken all reasonable steps to progress Mr Whitson’s grievance;
  • Explains that the length of time taken to respond to Mr Whitson’s concerns about privacy, WorkCover and Q-Comp are outside of Ms Craig’s control;
  • Empathises that the decision to reallocate Mr Whitson’s timetable to another employee has left him feeling aggrieved;
  • Encourages Mr Whitson to focus on the results he has previously achieved in the role; and
  • Says that she is not of the view that Mr Whitson has been financially penalised because of the grievance process but rather Mr Whitson has provided medical information stating that he was unable to work due to a medical condition.
  1. [16]
    Ultimately, after reviewing all of the information before her, Ms Borger found Ms Craig’s decision with regard to Grievance three to be fair and reasonable in the circumstances.

Grievance four

  1. [17]
    Ms Borger says that she does not consider the Department to have failed to provide a safe workplace, but rather has considered his grievance in full and determined an appropriate course of action.
  1. [18]
    Further, Ms Borger says that the Department prides itself on promoting a safe workplace that is free from bullying and harassment. If there was an imminent risk to Mr Whitson’s health, wellbeing and safety, appropriate actions would have been implemented with priority at the time. Ms Borger explains that the Department is committed to supporting Mr Whitson’s rehabilitation back into his role as Head of Department.
  1. [19]
    Ms Borger contends that Mr Whitson’s statement ‘considering the new evidence obtained from the information privacy application this statement would appear incorrect’ is not a matter for the internal review and proper recourse is with the Office of the Information Commissioner.
  1. [20]
    Finally, Ms Borger explains that Mr Whitson has not provided new evidence for her to consider an alternative internal review decision. Therefore, Ms Craig’s decision stands in that it is fair and reasonable in the circumstances.

Grievance five

  1. [21]
    Ms Borger points to cl 6.1(a) of Directive 11/20 which provides that a grievance cannot form part of a decision relating to mental and physical incapacity, and as such, she is unable to review this type of information.
  1. [22]
    Ms Borger says that Mr Whitson has not provided information that persuades her to set aside the local action decision and that as such, Ms Craig’s decision was fair and reasonable in the circumstances.

Other matters

  1. [23]
    Ms Borger notes that the local action decision provided to Mr Whitson referred to another employee’s name. Ms Borger confirms that this was an administrative error and that she has raised this locally to ensure accuracy on all outgoing correspondence items.
  1. [24]
    Ms Borger notes Mr Whitson’s concerns with Ms Craig’s local action decision not to undertake an investigation. Ms Borger says that it is not unfair or unreasonable for Ms Craig to not contact Mr Whitson directly to discuss information about conducting preliminary enquiries. Ms Borger says that having considered the facts of the matter, she agrees with the assessment to not require a workplace investigation and that it in her view, it was not necessary to gather additional information from Mr Whitson or to interview witnesses. Ms Borger concludes that Ms Craig’s local action decision to undertake management enquiries via a desktop review was fair and reasonable in the circumstances.
  1. [25]
    Ms Borger acknowledges Mr Whitson’s significant contributions to the education system and to delivering quality physical education to students. She acknowledges that her decision not to engage a workplace investigation may not be the outcome Mr Whitson was seeking and encourages Mr Whitson to focus on his recovery and the commitment made by the Department to assist him with transitioning back to his role as Head of Department.
  1. [26]
    Ms Borger addresses Mr Whitson’s human rights and notes that the requirement to keep the contents of the letter confidential limits the right to freedom of expression, which includes the freedom to impart information of all kinds. Ms Borger says that the limitation is reasonable and demonstrably justifiable in accordance with the Human Rights Act 2019 (Qld) (‘the HR Act’).

 Actions to be taken as a result of the internal review

  1. [27]
    Ms Borger notes the resolutions Mr Whitson was seeking:
  • ‘The information in part 2 would be a reasonable part of effectively investigating a complaint. It does not appear that any of this has occurred.’
  • ‘I note the region has already made decisions regarding my return to work before my reply to the course of action letter is even due. My right of reply will include medical information that should be considered and a new plan formulated’.
  1. [28]
    Ms Borger states that she has previously addressed her view that a workplace investigation would not be appropriate to assist Mr Whitson in resolving his grievances. Ms Borger reiterates that the information privacy (‘IP’) complaint is outside of the scope of the internal review decision.
  1. [29]
    Ms Borger says that Mr Whitson’s medical information will be considered with a new plan formulated, giving greater opportunities for Mr Whitson to successfully be returned to his position as Head of Department. Ms Borger says she has asked Ms Craig to contact Mr Whitson, subject to medical information, to arrange for a gradual return to work at an alternative high school location.
  1. [30]
    Ms Borger informs Mr Whitson of his avenues of external review.

Mr Whitson’s appeal notice

  1. [31]
    Mr Whitson states the following Reasons for Appeal in section 7 of his Form 89:
  1. Failure to follow the prescribed Workplace Rehabilitation Procedure 4.2 and the responsibilities contained within;

 There is clear new evidence that the Dept failed to follow its own policy from the Information Privacy application finalised at the end of 2022. The reason for not investigating citing:

 On 1 March 2023, the Public Sector Act 2022 (PS Act) became operative then repealing the Public Service Act 2008.

 The initial complaint and subsequent internal review (and subsequent 14 day period for a decision) were all before this date and so should be investigated as it is clear that the Dept did not follow their own Procedure as stated.

  1. Grievance two: Providing false and misleading information to investigating agencies including WorkCover and Q Comp and IME doctor (2020 referral);

 The evidence of these allegations has only been provided and finalised by the officer of the Information Commissioner on 2nd of November 2022 after an inordinate delay to an Information Privacy Application to the Dept on 10/06/2020. This information was not provided by the Dept prior to this and as such due to the delay by DoE was unable to be considered.

 Regardless the evidence of deliberately providing false information is clearly evident and has not been sufficiently investigated.

  1. Failing to adhere to prescribed complaint timeline and policy timelines and processes.

 There has been no acknowledgement of the fact that timelines have been grossly exceeded nor the impact of these delays. This aspect has not been suitably investigated.

  1. Failing to provide a safe workplace.

 Knowingly providing false information about an employee to internal and outside agencies has caused injury. This has not been sufficiently investigated as the evidence is very clear and documented. Failing to interview witnesses demonstrates an unwillingness to sufficiently investigate my claims of bullying and harassment.

 I note the comment from Lisa Shield – Manager Conduct and Complaints when being asked for comment regarding a referral to her regarding myself she advised ‘the matter was not dealt with by the Region well and seemed like a personal vendetta’… (DoE IP Application 213819 – File M – Document 65 of 1272) This has not been sufficiently investigated as it has not been mentioned in the result.

  1. Failing to adhere to information provided from Independent Medical Examination specialist.

 The statement from Dr Sheik Naveed when conducting an IME stated:

 ‘Mr Whitson has an ongoing protracted enquiry and grievance with his employer for perceived bullying he received prior to becoming unwell. This remains unresolved and would be a barrier in rehabilitation back to work. I think it is essential for this issue to be resolved for him to be able to return to work and be confident about his work performance’. This has not been actioned or referred to. The latest medical information from Dr Richard Heath has also not been enacted rather the region has placed me on sick leave without a medical certificate.

Appeal principles

  1. [32]
    Section 562B(3) of the Industrial Relations 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [33]
    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. [34]
    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. [35]
    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 and other instruments

  1. [36]
    Section 131 of the Public Sector Act 2022 (Qld) (the PS Act) lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  1. [37]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [38]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

  1. (d)
    for a fair treatment decision—a public sector employee aggrieved by the decision…
  1. [39]
    Mr Whitson’s grievance was lodged pursuant to Directive 11/20. Clause 9.2 of Directive 11/20 provides the requirements for conducting an internal review:

9.2  Stage 2–internal review

  1. (a)
    If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.
  1. (b)
    A request for an internal review must:
  1. (i)
    be received by the chief executive within 14 days of the employee receiving a copy of the decision made through local action or a decision is taken be made under clause 9.1(e)
  1. (ii)
    clearly state the reasons for dissatisfaction with the decision made through local action, and not merely state a belief that the decision made through local action was unfair and unreasonable, and
  1. (iii)
    state the action the employee believes would resolve the grievance.
  1. (c)
    Once an agency receives a request for an internal review, the agency must notify the employee in writing:
  1. (i)
    that the request for an internal review has been received by the agency
  1. (ii)
    of the name and contact information for a contact person for the internal review, and
  1. (iii)
    of the 14 day timeframe for making a decision in clause 9.2(f).
  1. (d)
    An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
  1. (e)
    If the chief executive or delegate is satisfied that:
  1. (i)
    the reasons for seeking an internal review are insufficient
  1. (ii)
    the request for internal review is frivolous or vexatious, or
  1. (iii)
    the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).

  1. (f)
    A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
  1. (i)
    the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
  1. (ii)
    where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.
  1. (g)
    If the chief executive or delegate fails to make a decision in relation to the request for internal review, the agency is taken to have confirmed the decision made through local action. Depending on the issues raised in the individual employee grievance, this may result in an avenue of external review being available to an employee once the 14 day period in clause 9.2(f) has expired.
  1. (h)
    At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
  1. (i)
    outline the action taken to review the decision made through local action
  1. (ii)
    outline the reasons for the decision, or the decision to take no further action
  1. (iii)
    outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
  1. (iv)
    outline any avenues of external review that may be available to the employee, including any relevant timeframes.

Respondent’s submissions

  1. [40]
    The Respondent says that the matter for determination is whether the internal review decision of Ms Borger dated 5 April 2023 was fair and reasonable.
  1. [41]
    With reference to cl 9.2 of the Directive, the Respondent says that it has complied with its obligations under cl 9.2(c) to notify the employee in writing: that the request for internal review had been received by the Respondent; of the name and contact information for a contact person for the internal review; and of the 14-day timeframe for making a decision set out in cl 9.2(f).
  1. [42]
    In accordance with cl 9.2(d) of the Directive, the Respondent says the internal review was completed by a delegated officer of the chief executive of the Department.
  1. [43]
    The Respondent acknowledges that the time period to make the internal review decision was greater than 14 days and notes that at all times, Ms Borger made reasonable attempts to progress the grievance and that contact was made with Mr Whitson on 25 January 2023, 20 February 2023, 13 March 2023 and 20 March 2023 to provide updates on the progress of the matter, noting that additional time was required.
  1. [44]
    The Respondent says that following the completion of the internal review, Ms Borger issued her decision in accordance with the requirements of cl 9.2(h) of the Directive, outlining: the action taken to review the decision made through local action; the reasons for the internal review decision; the action taken or proposed to be taken as a result of the internal review; and the avenues of external review that may be available, including any relevant timeframes.
  1. [45]
    The Respondent says that Ms Borger outlined a number of matters that cannot be considered the subject of the grievance, and in turn fall outside the scope of the internal review, namely: a decision relating to Mr Whitson’s mental or physical incapacity; the outcome of Mr Whitson’s privacy complaint at Coolum State High School; and the Appellant’s WorkCover claim and subsequent review by the Workers’ Compensation Regulator. Where appropriate, Ms Borger informed Mr Whitson of avenues to raise concerns regarding these matters.
  1. [46]
    With reference to the decision letter, the Respondent says that Ms Borger provided fulsome reasoning as to why the local action decision was found to be fair and reasonable against each of Mr Whitson’s concerns.
  1. [47]
    The Respondent says that Ms Borger provided a detailed account of actions to be taken as a result of the internal review; including reasons as to why the actions sought by the Appellant would not be taken.
  1. [48]
    The Respondent submits that the internal review decision was fair and reasonable noting that it complied with the procedural requirements of the Directive and, based on the information available to Ms Borger, it was reasonably open to Ms Borger to make the findings contained in the internal review decision letter.
  1. [49]
    The Respondent says that the matters Mr Whitson sets out in his grounds of appeal (outlined at paragraph [31] above) restate the matters the subject of the grievance. The Respondent says that these matters have been addressed either as part of the grievance and internal review decisions or may be addressed in the other avenues external to this appeal referenced in the internal review decision.

 Mr Whitson’s submissions

  1. [50]
    Mr Whitson filed written submissions on 6 June 2023. Included as an attachment to his submissions was a copy of the Respondent’s submissions including annotations from Mr Whitson in red font adding information or pointing out where he disagreed with the submissions. This is not an ideal way to make submissions, however I have read those annotations and considered the information where it addresses the appeal.
  1. [51]
    Mr Whitson contends in that annotated version of the Respondent’s submissions that his grievance relates to ‘both the original grievance and the internal review’.
  2. [52]
    With regard to the submissions set out at [45] above, Mr Whitson, in the annotated copy of the Respondent’s submissions states that he is not seeking consideration of a decision relating to his mental or physical capacity or a review of the outcome of his privacy complaint. With regard to the information provided by the Respondent to WorkCover, Mr Whitson appears to suggest that the Respondent should ‘make recompense for their errors from their own budget’. Compensation sought by Mr Whitson is not a matter for me to consider in this appeal.
  1. [53]
    Mr Whitson’s submissions provide a background of his career with the Department of Education. Mr Whitson says that he has been absent from work due to illness/injury ‘caused and exacerbated by the actions of the respondent’. Mr Whitson says that he was cleared to return to work at the start of 2023 but the Respondent has ‘kept him on unpaid sick leave’.
  1. [54]
    At paragraphs [5] – [9] of his submissions, Mr Whitson provides background regarding circumstances he says occurred from Term 4, 2017 onwards. Mr Whitson says that he received complaints about the management of the school in his role as Head of Department, Union representative and Union delegate on the Local Consultative Committee. Mr Whitson says that he raised matters with the administration and that the staff opinion survey results for the school were poor. Mr Whitson then goes on to describe events he says occurred in March of 2018 including being involved in a confrontation with an Acting Deputy Principal and which he says led to him being placed on a ‘periodic performance review’ and that the Principal did not respect the confidential nature of the matter, releasing the matter to ‘all of the executive staff as well as administration officers within the office’.
  1. [55]
    Mr Whitson says that during this time, his wife suffered a number of strokes, was hospitalised for many months and had a ‘second round of open-heart surgery’. At paragraph [11] of his submissions, Mr Whitson sets out extra responsibilities he undertook relating to management and coaching of sporting teams.
  1. [56]
    Mr Whitson describes health concerns he was having at this time including ‘debilitating gout attacks’. Mr Whitson says that sick leave absences were out of character for him and that despite being ‘on crutches and in extreme pain’, he was expected to undertake his normal duties and that doing so, including ‘400 metre round trips to the office every time he needed to speak to a member of the administration at the insistence of the principal’, further aggravated his injuries.
  1. [57]
    Mr Whitson refers to a matter where he had been referred to the ethical standards unit by the Principal but was eventually informed that there was no finding of misconduct of any kind. Mr Whitson points to comments made by the manager of the integrity unit to a regional office investigator that the issue had not been handled well by the region and appeared to be a personal vendetta against Mr Whitson.  Mr Whitson says that it appears the region did not investigate these comments further nor advise the Appellant that this view had been expressed. Mr Whitson says he discovered this as part of his IP application.
  1. [58]
    Mr Whitson says that during the periodic performance review, the Principal ‘had executive staff record all conversations with the appellant and report them back in writing’. Mr Whitson says that the document providing the result of his periodic performance appraisal contained numerous factual errors that were extremely damaging to him and were not consistent with school records. Mr Whitson says that this was brought to the Principal’s attention by both himself and the Union organiser and that there was an agreement that the errors would be fixed. However these errors were not fixed and the Principal provided this ‘knowingly incorrect information to WorkCover and regional office’. Mr Whitson says this is a ‘clear breach of the code of conduct’ and that he took sick leave after that meeting and has never returned to any school since.
  1. [59]
    Mr Whitson says that the grievance decision and internal review decision were not fair and reasonable and says the decision-making process was flawed for the following reasons:
  1. a.
    The appellant made it quite clear on numerous occasions that he expected verbal contact to discuss the complain which is consistent with the procedure. At no point was this done by the respondent.
  1. b.
    The appellant advised the expectation that witnesses named in the grievance would be contacted (requested on numerous occasions consistent with the managing employee complaints procedure) so that a thorough investigation could be done. This was not done.
  1. c.
    The appellant provided references to an internal document of the respondent being an Information Privacy (IP) application which clearly proved false information being provided by the Principal of Coolum SHS in relation to the appellant. It appears these internal documents were not reviewed.
  1. d.
    The appellant contends that the new evidence provided by way of the long overdue IP application (approximately 2.5 years for a process meant to take 25 working days) demonstrates significant new information not previously available that has not been reviewed by the respondent according to their submission.

Grievance one

  1. [60]
    From paragraphs [40] to [44] of his submissions, Mr Whitson sets out the errors and mistakes he says were made in assessing his first grievance regarding a failure to follow the prescribed Workplace Rehabilitation Procedure 4.2 and the responsibilities contained within. Mr Whitson says there has a been a ‘complete failure of this procedure particularly considering the injury was subject to a WorkCover claim’. Mr Whitson says that as a result of the failure to follow the procedure, he has developed secondary injuries.
  1. [61]
    Mr Whitson says that after ‘three years from date of injury I had never received any phone call or been invited to a face-to-face meeting from any Rehabilitation or Return to work Coordinator as required’. Mr Whitson points to his IP application and notes that no ‘record of contact’ forms have been completed as required.

Grievance two

  1. [62]
    Grievance two related to Mr Whitson’s allegation that the Respondent has provided ‘false and misleading information to investigating agencies including WorkCover and Q Comp and IME doctor.’
  1. [63]
    In paragraph [45](a)-(h) of his submissions, Mr Whitson sets out a number of statements made by the Principal and says that each statement is incorrect and then provides a reference to evidence demonstrating the Principal’s incorrect statements. Mr Whitson says that the Principal knew the statements made were not true but continued to ‘knowingly distribute completely false allegations to WorkCover, regional office and others’.

 Grievance three

  1. [64]
    At paragraphs [47] and [48] of his submissions, Mr Whitson sets out his submissions regarding the failure to adhere to prescribed complaint and policy timelines and processes. Mr Whitson says that delays in providing him with replies have meant that he was unable to access the information required to submit a grievance. Mr Whitson says that when he finally received a response to his IP request, it ‘proved the Principal did indeed intentionally provide known false information... to WorkCover and others’.

 Grievance four

  1. [65]
    Mr Whitson submits that the provision of knowingly false information to Workcover and supervisors is ‘reasonably foreseeable to cause injury’. Mr Whitson says:

To withhold unnecessarily a clearance from ethical standards to any wrongdoing, to question performance when there was sufficient evidence of current illness, to insist on 450 metre round trip meetings to someone in extreme pain on crutches, to mot make allowance for a partner who has suffered serious strokes are all examples of reckless behaviour that any could cause or contribute to injury. The combination of all of these actions together is reckless management likely to adversely impact the health and safety of any employee.

 Grievance five

  1. [66]
    Mr Whitson points to the independent medical examination (‘IME’) conducted by QSuper which contains an opinion from the doctor that it is essential for Mr Whitson’s grievance to be resolved for him to be able to return to work. Mr Whitson says that this opinion was provided to the Respondent on 10 February 2022 but was never acted upon even thought the IME specialist said it was ‘essential’.

 Whether the decision was fair and reasonable

  1. [67]
    From paragraphs [53] to [61] of his submissions, Mr Whitson provides submissions ‘as to whether the decision was fair and reasonable’. In summary, Mr Whitson says:
  • The Department has failed to consider ss 19 and 29 of the Workplace Health and Safety Act 2011 (Qld) (‘the WHS Act’) in its considerations.
  • The Respondent did not comply with its obligations under cl 9.2(c) of Directive 11/20 by not responding or seeking an extension by  
  • The Respondent failed to review the IP documents which clearly illustrated false accusations made by the Principal.
  • Relevant witnesses and the Appellant were not contacted as requested. This demonstrates an unwillingness to do a thorough investigation as requested by Mr Whitson.
  • The Respondent has not applied the ‘principles of natural justice, including timely decisions and the provision of adequate reasons’.

 Respondent’s submissions in reply

  1. [68]
    The Respondent maintains that it is the decision of Ms Borger which is under appeal, not that of Ms Craig. Further, the Respondent maintains that Mr Whitson has raised a number of matters outside the scope of this appeal.
  1. [69]
    The Respondent says that in reviewing the decision, the Commission ought to only consider the information which was available to Ms Borger at the time of the decision. The Respondent says that all evidence tendered as part of Mr Whitson’s submissions is new evidence, other than: ‘Attachment 201 false claims and proof requirements’ and ‘Appendix 75 risk management and IME and rehab complaint’.
  1. [70]
    The Respondent submits that it was fair and reasonable for Ms Borger to take into account the information considered by Ms Craig in her local action decision and any information provided by Mr Whitson upon his request for internal review. The Respondent further notes that Mr Whitson was afforded an opportunity to provide all information to Ms Borger as part of the internal review process.
  1. [71]
    With regard to compliance with Directive 11/20, the Respondent acknowledges the decision was issued outside of 14 days from receipt of the written request for an internal review. The Respondent says that in accordance with cl 9.2(f) of the Directive, the timeframe applies unless it has been extended by mutual agreement or where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance. The Respondent maintains that Mr Whitson was contacted and/or provided with updates on the internal review progress on 25 January 2023, 20 February 2023, 13 March 2023 and 20 March 2023 and says that at all times it endeavoured to ensure Mr Whitson was informed of the progress of the internal review. The Respondent notes that Ms Borger had delegation to undertake the internal review and says that any delay in finalising the internal review was reasonable and does not render the decision unfair or unreasonable in the circumstances.
  1. [72]
    With regard to Mr Whitson’s claim that he was not provided natural justice, the Respondent submits that Mr Whitson was: afforded an opportunity to present his case, along with all information and/or documentation for Ms Borger’s consideration; provided with a decision made by an unbiased or disinterested decision-maker; and provided with a decision with logical probative evidence and sound reasons.
  1. [73]
    In response to Mr Whitson’s claim that the Respondent failed to contact witnesses or conduct an investigation, the Respondent says that Ms Borger was not required to contact witnesses or conduct an investigation.
  1. [74]
    The Respondent says that the internal review and the written decision issued by Ms Borger complied with the requirements of the Directive.

 Further submissions in reply from Mr Whitson

  1. [75]
    Mr Whitson again argues that his appeal relates to both the local action decision and the internal review.
  1. [76]
    Mr Whitson also says that if false information has been provided by the Principal to WorkCover and regional office, steps should be taken to remedy this and Mr Whitson should be reimbursed for his sick and long service leave as requested. Mr Whitson says he has advised this for some time and that the evidence provided through his IP request comprehensively supports this.
  1. [77]
    In response to the Respondent’s submissions regarding what information was available to Ms Craig and Ms Borger and should be considered in this this appeal, Mr Whitson says that all of the information gained through the IP process was available to both decision-makers. Mr Whitson says this is evidenced in Ms Craig’s reference to his ‘extensive IP application’ and says that information available to the Respondent but not considered by it does not constitute ‘new information’ but demonstrates a lack of thorough investigation on behalf of the Respondent.
  1. [78]
    Mr Whitson repeats his submission that the Respondent has not complied with Directive 11/20 in terms of both compliance with timeframes and with regard to the local action determined to be taken by Ms Craig.

Consideration

  1. [79]
    I understand Mr Whitson’s submission that the appeal relates to both the local action decision and the internal review. I understand the point Mr Whitson makes is that any consideration of whether the internal review decision was fair and reasonable necessitates a consideration of the local action decision. The approach I am taking in considering this appeal is to focus on the decision under review, that being the internal review decision of Ms Borger. However, it is clear that in considering the internal review decision, it is necessary to have regard to Ms Craig’s local action decision.
  1. [80]
    I intend to address each of the five grievances raised by Mr Whitson and the internal review outcome of each grievance. I will also address the reasons Mr Whitson says the decision of Ms Borger was unfair and should be set aside. 

Grievance one

  1. [81]
    I understand this grievance to relate to what Mr Whitson says is the failure of the Respondent to initiate or follow the Workplace Rehabilitation Procedure. As I understand it, Mr Whitson’s concern is that he sustained what he says is a work-related injury and that he was never contacted by a Rehabilitation or Return to Work Coordinator as required.
  1. [82]
    I accept that there is no evidence that Mr Whitson was contacted by a Rehabilitation or Return to Work Coordinator. However, it seems to me that Mr Whitson was on a period of medical or other leave and that the initial advice of an independent medical examiner was that Mr Whitson would be unable to return to work until such time as his grievance had been resolved. I understand that following this, Mr Whitson provided the Respondent with a series of medical certificates indicating that he was medically unfit to return to work. The local action decision letter of 20 January 2023 discusses Mr Whitson’s return to work and a detailed set of plans to support Mr Whitson’s return to a different work location.
  1. [83]
    While I note the Workplace Rehabilitation Procedure, I also note the surrounding context and circumstances regarding Mr Whitson’s exit from the workplace. This does not appear to be a situation where Mr Whitson took leave and there was no contact or communication whatsoever between himself and the Department of Education. In the local action decision, Ms Craig says:

From my review of our records related to your absence I have identified discussions were held with you in early 2018 regarding performance concerns with an intent to commence an improvement program to support you. Subsequently you have submitted a WorkCover claim which was declined, your appeal to the Workers’ Compensation Regulator was rejected.

Your extended absence from the workplace commenced on 16 July 2018. Our records indicate medical advice was only obtained after your attendance, as directed, at an Independent Medical Examination appointment with Dr Anand, Psychiatrist, on 10 November 2022, and receipt of Dr Ananad’s report dated 1 December 2022.

I acknowledge your comments as to how you feel you have been impacted by matters related to your employment. The way an action impacts an employee is an important consideration, although the impact of alleged action/s cannot by itself establish whether or not the action occurred as alleged or was in fact unreasonable.

From my review of available information, I am of the view the region has taken reasonable and necessary actions in relation to your matters related to your absence from the workplace. Extensive time and resources have been required in managing your various complaints, including a Public Service Appeal (Fair Treatment) (PSA/2019/7), your request for paid special leave, WorkCover and Workers’ Compensation Regulator submissions and your significant Information Privacy Request. Our actions included reasonable contact with you and multiple attempts to obtain the required medical advice to facilitate your return to the workplace.

  1. [84]
    I do not have information available to me regarding any early or ongoing attempts by Mr Whitson to return to work via the rehabilitation process. In circumstances where it is unclear to me that a return to work or commencement of a rehabilitation process was possible or appropriate in the context of the workplace issues at play, I find that it was reasonable for Ms Borger to determine that Ms Craig’s local action decision with regard to Grievance one was fair and reasonable.

 Grievance two

  1. [85]
    I have considered the large amount of evidence provided by Mr Whitson in support of his grievance that false and misleading material was provided to investigating agencies including WorkCover and Q-Comp and the IME doctor (2020 referral). While he has noted concerns about how long the IP process took, I understand Mr Whitson’s issue in this appeal is with regard to what he says is new information gleaned through the IP process rather than a complaint about the IP process itself and I have considered the submissions regarding Grievance two on this basis.
  1. [86]
    The first thing I would note is that it is not unusual for parties to have a different view about what a particular piece of information or evidence means or demonstrates. It is also common for parties to characterise circumstances differently, depending on their perspective.
  1. [87]
    Mr Whitson exercised his right to seek a review of the decision rejecting his WorkCover claim. It was open to him to lodge an appeal in the Queensland Industrial Relations Commission regarding the decision of the Regulator to uphold the WorkCover decision. It seems to me that Mr Whitson exercised an opportunity to put his own version of events to WorkCover.
  1. [88]
    The place for a forensic examination of information which forms the basis of a decision of WorkCover and/or the Workers’ Compensation Regulator is via an appeal of those matters. If Mr Whitson believes he has identified new information which should be considered by WorkCover, he should investigate whether there are avenues available for this to occur. I also note that if Mr Whitson believed that information existed which would help refute what he says was misleading or false information the Department was providing, it was open to him at that time to appeal the decision and seek production of such material.
  1. [89]
    It was also completely open to Mr Whitson to put forward his version of events and any disagreement or grievance he had with the instructions provided to the IME doctor as a part of the process.
  1. [90]
    Ms Craig determined that Mr Whitson had been afforded natural justice and an opportunity to respond to or refute the position and information. Ms Borger found that these matters were outside of the scope of the internal review as a separate jurisdictional right of appeal existed for both the WorkCover and the IME direction. Ms Borger also upheld Ms Craig’s finding that Mr Whitson had been provided with a right to natural justice and a right to appeal the decisions made.
  1. [91]
    I find that Ms Borger’s decision with regard to Grievance two was fair and reasonable.

 Grievance three

  1. [92]
    With regard to Mr Whitson’s grievance about a failure to adhere to prescribed complaint timelines and policy timelines and processes, Ms Craig’s decision stated:

Timelines are provided within our policy frameworks, however, as you are aware, provision is also made for extension of timeframes and escalation points should those timeframes not be met. Our records indicate communication with you – when you have been contactable – has been provided regularly as to the status of your matters.

  1. [93]
    Ms Borger’s decision acknowledged the individual employee grievance process can take time, especially where the grievance involves several matters. Ms Borger concluded that Ms Craig had taken all reasonable steps to progress the grievance with an intent of resolving it and that it is ‘out of Ms Craig’s control the length of time taken to respond to matters concerning your privacy complaint, your WorkCover claim and Q-Comp’.[2]
  1. [94]
    Ms Borger acknowledged Mr Whitson’s complaint that Ms Craig’s decision did not reference the time taken to process his long service leave applications and the lack of information provided to him when they were declined. She also acknowledged his statement regarding a change to his timetable. Ms Borger concluded that these omissions did not render Ms Craig’s decision unfair or unreasonable.
  1. [95]
    Ms Borger stated a view that Mr Whitson had not been financially penalised because of the grievance process, but rather Mr Whitson had provided medical information stating that he was unable to work due to a medical condition.
  1. [96]
    It seems to me that despite some delays, Ms Craig’s decision with regard to the grievance was provided as soon as she was practicably able to conclude consideration of the matters raised by Mr Whitson. It appears that Mr Whitson was pursuing matters through a range of avenues and that some of these processes involved delays. 
  1. [97]
    While I understand Mr Whitson’s frustration regarding delays in the provision of the decision, I find it was open to Ms Borger to conclude that a delay in Ms Craig’s decision regarding his grievance did not render the decision unfair or unreasonable.
  1. [98]
    Further, I understand that Mr Whitson is aggrieved by the length of time taken by Ms Borger to undertake the internal review and that Ms Borger did not seek his consent to an extension of time. I am satisfied that Ms Borger was taking reasonable steps to address the request for internal review and that contact was made with Mr Whitson about the progress of the request. It was not necessary to seek Mr Whitson’s agreement for the process to take a longer period of time where Mr Whitson was updated about the progress of the review.

Grievance four

  1. [99]
    Grievance four relates to Mr Whitson’s claim that the Respondent failed to provide a safe workplace. Ms Craig found that Mr Whitson’s workers’ compensation claim had not been accepted and that he had provided no new evidence to support his assertion that he had not been provided with a safe workplace.
  1. [100]
    In finding that ‘Ms Craig’s decision stands’, Ms Borger stated that the Department prides itself on promoting a safe workplace and that if it were deemed there was an imminent risk to Mr Whitson’s health, wellbeing and safety, appropriate triage actions would have been implemented as a matter of priority at that time. Ms Borger said that she considered the Department had not failed to provide Mr Whitson with a safe workplace but had considered all of the facts provided in his grievance and determined an appropriate course of action. Ms Borger stated that the Department is committed to supporting Mr Whitson’s rehabilitation back into his role as Head of Department. Ms Borger stated that Mr Whitson had not provided any new evidence to form the basis of an alternative internal review decision.
  1. [101]
    I understand that Mr Whitson remains aggrieved and does not accept Ms Craig’s local action decision or the outcome of the internal review. However, while acknowledging that there is a clear difference of opinion about the matters preceding Mr Whitson commencing leave from the Department on the basis of a medical condition, I am unable to conclude on the material before me that Mr Whitson was not provided with a safe workplace or that Ms Craig’s local action decision and associated actions taken to support Mr Whitson’s return to work render the workplace unsafe.
  1. [102]
    I have reviewed the submissions Mr Whitson made in his grievance document. Mr Whitson may have views about the management of the school. If Mr Whitson or his colleagues believe the school is not a safe workplace, this should be reported through the appropriate avenues.
  1. [103]
    I also note Mr Whitson’s submission that Ms Borger should have considered  ss 19 and 29 of the WHS Act in considering the internal review. In the absence of any specific information about a complaint made under the WHS Act at the time these events took place, or a decision made with regard to such a complaint, I am unable to conclude that Ms Borger was required to consider the WHS Act in considering Ms Craig’s decision.
  1. [104]
    It was open to Ms Borger to uphold Ms Craig’s decision with regard to Grievance four.

Grievance five

  1. [105]
    Grievance five relates to Mr Whitson’s claim that the Department has failed to adhere to information provided from the IME specialist. Ms Craig’s local action decision stated the following:

I refer to the meeting held with you, your union representative and regional representatives on 9 December 2022 to discuss the IME report from Dr Anand. Dr Anand’s report states you are fit to return to work, though notes the cause of your current absence is ‘… the fact (you) have made up (your) mind that you are not returning to teaching…’. The region is complying with the report and the course of action letter to you dated 19 December 2022 outlines the next steps for your return to work.

  1. [106]
    Ms Craig noted that Mr Whitson had requested that one outcome of his grievance be that any actions related to his employment be delayed until the agency had demonstrated willingness to work with him on finding a reasonable adjustment to allow him to return to work. With regard to this, Ms Craig found that the lodgement of an individual employee grievance is not in itself a reason not to continue to report for duty, or, if absent on sick leave, not to engage in workplace rehabilitation/return-to-work processes. Ms Craig reiterated a statement she had made in an email to Mr Whitson on 17 January 2023 that a grievance matter can progress in parallel with return-to-work arrangements.
  1. [107]
    Ms Craig goes on to provide information to Mr Whitson regarding the course of action planned to facilitate Mr Whitson’s return to work at another school location.
  1. [108]
    Ms Borger states that per cl 6.1(a) of Directive 11/20, a grievance cannot form part of a decision relating to mental or physical incapacity and that she is unable to internally review information relating to Mr Whitson’s mental and physical incapacity. Ms Borger stated that Mr Whitson had not provided her with information that persuades her to set aside Ms Craig’s local action decision.
  1. [109]
    I have reviewed the material available to me and I am unable to conclude that the local action decision of Ms Craig and the parts of that decision relating to Mr Whitson’s return to work are unfair or unreasonable or demonstrate a failure to consider the advice provided as a result of the Independent Medical Examination.
  1. [110]
    While I understand that Mr Whitson’s materials make several references to an earlier IME report from a doctor upon request of QSuper, I find that it was fair and reasonable for the Department to rely on the most recent IME report and any additional recent medical information provided by Mr Whitson. I am satisfied that Ms Borger’s letter demonstrates a willingness from the Department to consider any additional medical information Mr Whitson wishes to provide.

Other matters

  1. [111]
    Ms Borger acknowledged that a clerical error had led to another employee’s name being used on the local action decision provided to Mr Whitson and noted that she had raised this locally to ensure accuracy on outgoing correspondence. This was a reasonable approach for her to take.
  1. [112]
    Ms Borger considered Mr Whitson’s request for a workplace investigation and for witnesses to be interviewed. Ms Borger concluded that Ms Craig’s assessment that the matter did not require a workplace investigation based on information provided in the grievance and that there was no need to interview Mr Whitson or other witnesses was fair and reasonable. Ms Borger concluded that Ms Craig’s decision to undertake management enquiries via a desktop review was fair and reasonable in the circumstances. Ms Borger acknowledges that this may not be the outcome Mr Whitson was seeking but encourages Mr Whitson to ‘focus on your recovery and the commitment made by the department to assist you with transitioning back to your role as Head of Department’.[3]
  1. [113]
    Mr Whitson requested that witnesses be contacted and that a thorough examination be undertaken. Ms Craig and Ms Borger, in their respective decisions, considered this request and determined that interviewing of witnesses or the commencement of an investigation was not necessary. That Mr Whitson disagrees with this decision does not serve to render it unfair or unreasonable.
  1. [114]
    I have reviewed all of the available information. The situation which existed at the time Mr Whitson left the workplace appears to be reasonably clear. Mr Whitson has provided extensive submissions and annotations to documents he has provided. I agree with Ms Borger that it was fair and reasonable for Ms Craig to determine that a desktop review, which included consideration of the matters raised by Mr Whitson, was fair and reasonable. I am unable to conclude that a workplace investigation or series of interviews would have provided information which would have changed the outcome of the grievance.
  1. [115]
    Ms Borger considers Mr Whitson’s human rights and concludes that any limitation on freedom of expression is reasonable and demonstrably justifiable in accordance with the HR Act. I agree, and note that to the extent required to conduct his appeal, Mr Whitson has been able to discuss the matters subject of the grievance and the decision.
  1. [116]
    Mr Whitson had also complained to Ms Borger that decisions regarding his return to work had been made before he had replied to the course of action letter and that his response would include additional medical information requiring a new plan to be formulated. I note that Ms Borger states that the medical information will be considered with a new plan formulated to give greater opportunities to successfully be gradually return to the role of Head of Department and that she would request Ms Craig to contact Mr Whitson regarding these matters. This was an entirely reasonable response in the circumstances where the return-to-work process was, and is, occurring parallel to the grievance process.
  1. [117]
    I note from the submissions of the parties that there is some disagreement about the information Ms Borger says she had available to her at the time she made her decision and the information provided in appendices to Mr Whitson’s submissions in this appeal. I find that it was reasonable for Ms Borger to expect that Mr Whitson would provide her with all of the information he wanted her to consider in the internal review.  It was not a matter for Ms Borger to conduct a search for relevant information held by the Department to support Mr Whitson’s submissions. However, I would note for completeness that I have reviewed all information attached to Mr Whitson’s submissions. I find that large sections of the material relate to Mr Whitson’s concerns about information provided to WorkCover, QSuper and potentially the IME doctor and which he says demonstrate that information provided by the Respondent was false and misleading. As I have noted above, the correct avenue for these matters to be raised is in those specific jurisdictions. It is not appropriate in this external review of Ms Borger’s internal review of Ms Craig’s local action decision for me to address the validity of decisions made by these agencies.
  1. [118]
    Clause 9.2(h) of the internal employee grievance provides the requirements for the written decision Ms Borger provided to Mr Whitson. In my view, the decision of 5 April 2023 outlined the action taken to review the decision made through local action; outlined the reasons for the decision; outlined any actions arising from the internal review and outlined avenues of external review.
  1. [119]
    It seems to me that Mr Whitson’s case is complex and that after several years, the time is approaching for Mr Whitson and the Department to work together towards his successful return to work. While I understand that Mr Whitson remains aggrieved about the events which occurred in 2018 and the length of time it has taken for him to be provided with decisions or resolution of his various matters, I do not find that Mr Whitson has demonstrated that Ms Borger’s internal review upholding the local action decision of Ms Craig was not fair or reasonable.
  1. [120]
    With regard to the local action decision and internal review decision, I find that Mr Whitson has been provided with an opportunity to make submissions and provide evidence; the time taken to provide the outcome may have exceeded that recommended in the policy and procedure but does not render the decision unfair; and the reasons provided by Ms Borger were adequate and reflected the requirements of the Directive.
  1. [121]
    Mr Whitson has raised a number of matters throughout his submissions and material which he may seek to pursue through other avenues available to him, however the scope of this review is quite narrow and involves only a review of Ms Borger’s internal review decision. For the foregoing reasons, I find that decision was fair and reasonable.

Orders

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

Footnotes

[1] Correspondence from Ms Borger to Mr Whitson dated 5 April 2023, page 2.

[2] Ibid 4.

[3] Ibid 6.

Close

Editorial Notes

  • Published Case Name:

    Whitson v State of Queensland (Department of Education)

  • Shortened Case Name:

    Whitson v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 202

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    13 Jul 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
Egan v State of Queensland (Department of Education) [2024] QIRC 1682 citations
Jackson v State of Queensland (Queensland Health) [2024] QIRC 2221 citation
1

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