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  4. AN v State of Queensland (Department of Education) - [2023] QIRC 289

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AN v State of Queensland (Department of Education)[2023] QIRC 289

AN v State of Queensland (Department of Education)[2023] QIRC 289

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

AN v State of Queensland (Department of Education) [2023] QIRC 289

PARTIES:

AN

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO.:

PSA/2022/972

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

5 October 2023

MEMBER:

Power IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed; and
  1. Pursuant to Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the Appellant, witnesses, and the school in this appeal are not to be published.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a disciplinary decision – where allegations against Appellant substantiated – where Appellant claims the disciplinary finding is unfair and unreasonable – whether the disciplinary finding decision fair and reasonable – consideration of disciplinary action – disciplinary action imposed was fair and reasonable.

EVIDENCE – MISCELLANEOUS MATTERS – NON–PUBLICATION OF EVIDENCE – PARTICULAR CASES – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress identifying information – identifying information suppressed

LEGISLATION:

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

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

Public Service Act 2008 (Qld), ss 187 and 188

Public Sector Act 2022 (Qld), ss 131 and 324

CASES:

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

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330

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

Gilmour v Waddell & Ors [2019] QSC 170

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

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

Maher v Workers' Compensation Regulator [2021] QIRC 313

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283

Reasons for Decision

Introduction

  1. [1]
    Ms AN ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as an Experienced Senior Teacher at a special school.
  1. [2]
    Upon receiving an allegation made against the Appellant's conduct towards a student ('Student X') on 4 November 2020, the Respondent suspended the Appellant from duty on normal remuneration on 8 December 2020.
  1. [3]
    Following an investigation conducted by the Respondent, on 23 May 2022, Ms Genevieve Gillies-Day, Executive Director, Safety and Integrity, issued a notice to  the Appellant, requesting the Appellant show cause regarding the following allegation:

On 4 November 2020, at [the school], you acted in a physically inappropriate manner towards [Student X] by grabbing his hair and pulling him towards the bike shed.

  1. [4]
    On 9 June 2022, the Appellant provided a response to the first show cause notice.
  1. [5]
    On 11 July 2022, the Appellant was issued with a disciplinary finding decision whereby Ms Rynell Hastie-Burroughs, Acting Assistant Director-General, Human Resources, informed the Appellant that the allegation had been substantiated on the balance of probabilities and that it was determined the Appellant had contravened, without reasonable excuse, a standard of conduct in a way that is sufficiently serious to warrant disciplinary action. The Appellant was requested to show cause why the following disciplinary action should not be imposed against her:
  1. a reprimand;
  1. a reduction in classification level from Experienced Senior Teacher to Senior Teacher for a period of twelve months, reverting back to Experienced Senior Teacher (ES401) at the completion of twelve months; and
  1. a transfer to another school (to be determined) within 50 minutes of the Appellant's home unless an alternative geographical area is agreed.
  1. [6]
    On 19 July 2022, the Appellant provided a response to the disciplinary finding decision.
  1. [7]
    By letter dated 17 October 2022, Ms Rachel Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources, determined not to impose the disciplinary action of a reduction in classification, however, determined that the imposition of a reprimand and transfer to another school would be a reasonably appropriate and proportionate outcome ('the disciplinary action decision'). Accordingly, Ms Borger imposed the following disciplinary action under s 188(1) of the PS Act[1]:
  1. a reprimand; and
  1. a disciplinary transfer to another school (to be determined by the relevant Regional Directors) within 50 minutes of the Appellant's home, unless an alternative geographical area is agreed.
  1. [8]
    By appeal notice filed on 7 November 2022, the Appellant appealed both the disciplinary finding decision and disciplinary action decision (together, 'the decisions').
  1. [9]
    The Appellant filed an appeal against the decision in the Industrial Registry prior to the commencement of the Public Sector Act 2022 (Qld) ('PS Act'). In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act.

Appeal principles

  1. [10]
    The appeal must be decided by reviewing the decisions appealed against.[2] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [11]
    The stated purpose of such an appeal is to decide whether the decisions appealed against was fair and reasonable.[5] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [12]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Reasons for Appeal

  1. [13]
    The Appellant outlined extensive submissions in the appeal notice. Broadly, the Appellant appeals the decisions on the following grounds:
  1. the Appellant denies any inappropriate physical contact with Student X, including grabbing and pulling Student X's hair;
  1. the only contact made with Student X was in a way of support and correction with the physical contact falling into the permitted range outlined in the Restrictive Practice Policy and the Guidelines for implementing allegations against employees in the area of student protection ('the Guidelines');
  1. the physical interaction was necessary in the circumstances where Student X was creating a risk of harm to himself, other students and the Appellant, was reasonable in nature, was not excessive and was a proportionate response;
  1. the Appellant's behaviour was appropriate, professional and the Appellant acted with integrity with a commitment to follow policies. Further, the Appellant's actions were motivated by the interests of protecting the safety and wellbeing of all students including Student X;
  1. there is no incident report by any staff to indicate that Student X was physically hurt. Further, there are no parent notes to indicate that Student X went home hurt;
  1. the management action recommended for this type of low-level interaction is an informal resolution and not a protracted disciplinary process for an eight month period as per the Guidelines;
  1. the Appellant was not afforded the presumption of innocence that her recollection of events was not considered factual;
  1. the allegation was based on what was perceived to have happened rather than what occurred and there was no sound evidentiary basis upon which the allegation could be substantiated, consistent with the Briginshaw principle;
  1. there has been a lack of reasonable communication from the Respondent during the disciplinary process; and
  1. the limitation of the Appellant's human rights is not reasonable as the Appellant acted appropriately in the circumstances.
  1. [14]
    The Appellant further raises concerns regarding the integrity of the investigation process and asserts that confidentiality has been breached regarding the allegation made against the Appellant.

Respondent's submissions

  1. [15]
    The Respondent outlines an extensive chronology of the disciplinary process and contends that the disciplinary decisions were reasonably open to the Respondent and should not be disturbed.
  1. [16]
    The Respondent makes the following submissions regarding the process:
  • On 9 November 2020, the Respondent received an allegation regarding the Appellant's conduct towards Student X on 4 November 2020. At that time, Student X was a Year 3 student at the school who had a verified disability and was non-verbal.
  • On 8 December 2020, the Appellant was suspended from duty on normal remuneration. This suspension was cancelled on 19 April 2021 when the Appellant commenced alternative duties undertaking administrative and project work at a different school.
  • On 14 December 2020, the Respondent referred the allegation against the Appellant to the Crime and Corruption Commission (CCC). On 19 January 2021, the CCC referred the allegation back to the Respondent for management.
  • On or about 19 January 2021, the Respondent commenced an investigation into the allegation against the Appellant. This investigation was concluded on or about 3 August 2021.
  1. [17]
    The Respondent makes the following submissions regarding the decision on disciplinary finding:
  • On 23 May 2022, Ms Gillies-Day ('the decision maker') invited the Appellant to show cause (First Show Cause Notice) as to why a disciplinary finding should not be made against her under the PS Act in relation to the following allegation:

On 4 November 2020, at [the school], you acted in a physically inappropriate manner towards (Student X) by pulling his hair.

  • Attached to the notice was six attachments including the Investigation Report.
  • Following consideration of the Appellant's response, the decision maker substantiated the allegation and made the following disciplinary finding:

''.. I have determined that pursuant to sections 187(1)(g) of the Act you contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct under the Public Sector Ethics Act 1994, namely Clause 3.1 of the Code of Conduct for Queensland Public Service (Code of Conduct), in a way that is sufficiently serious to warrant disciplinary action.''

  1. [18]
    The Respondent makes the following submissions regarding the decision on disciplinary action:
  • 11 July 2022 the decision maker invited the Appellant to show cause (Second Show Cause Notice) as to why the following disciplinary action should not be imposed against her under the PS Act in relation to the disciplinary finding:

- a reprimand;

- a reduction of classification level from Experienced Senior Teacher (ES401) $4169.00 per fortnight), to Senior Teacher (4yr trained) ($4016.20 per fortnight), for a period of twelve months. At the completion of twelve months, you will revert to Experienced Senior Teacher (ES401); and

- a transfer to another school (to be determined within 50 minutes of your home, unless an alternative geographical area is agreed.

  • Following consideration of the Appellant's response, Ms Borger advised the following:

''.. I have determined not to impose the proposed reduction of classification level against you, however, there is nothing in the submissions made by you that lead me to consider that the imposition of a reprimand and transfer would not be a reasonably appropriate and proportionate outcome.

…

Accordingly, I have determined to impose the following disciplinary action under section 188(2) of the PS Act:

- a reprimand; and

- a disciplinary transfer to another school (to be determined by the relevant Regional Directors) within 50 minutes of your home, … unless an alternative geographical area is agreed. ''

  1. [19]
    The Respondent submits that whilst the Appellant has continually denied the Allegation, the Respondent concluded that on the balance of probabilities, based upon its assessment of the available evidence, the Allegation was substantiated.
  1. [20]
    The Respondent submits that it genuinely engaged with the Appellant throughout the process and in recognition of her response to the disciplinary finding decision, abandoned a proposed disciplinary action.
  1. [21]
    The Respondent further submits that the disciplinary action imposed of a reprimand and a transfer are towards the lower end of the disciplinary scale.

Appellant's submissions

  1. [22]
    The Appellant submits that the management action recommended for this type of low-level interaction is an informal resolution and not a protracted disciplinary process as per the Guidelines. The Appellant refers to the following passage in the Guidelines:

If there is no physical injury or minor scratches and minor bruising to the student and the employee has no known adverse history or pattern of behaviour, this incident may be dealt with via localised fact finding culminating in informal resolution being facilitated between the parties…

  1. [23]
    The Appellant refers to an email where it was outlined that 'there was no injury reported'. The Appellant further refers to a statement from a witness who stated that 'he was already making noise, the noise didn't change' when asked if the Student X was in pain and highlights that she has had no previous allegations in her career with the Respondent of over 30 years.
  1. [24]
    The Appellant made extensive submissions in respect of her suspension from duty on 8 December 2020, submitting that, on the balance of probabilities, the suspension breached Directive 16/20 Suspension and the requirement to consider alternative duties. The Appellant further submits that this cannot have been reasonable management action taken in a reasonable way, referring to the case of Maher v Workers' Compensation Regulator.[6]
  1. [25]
    The Appellant highlights that she was not notified of the substance of the allegation against her until 12 July 2021, approximately 8 months after being suspended. The Appellant notes that the process followed in another incident by another teacher in November 2022 appeared to be fair and reasonable as that teacher was notified of the specifics of the allegation within two hours of the incident. The Appellant submits that two of the witnesses and the Queensland Teachers Union of Employees supports a more timely process.
  1. [26]
    The Appellant submits that, in all probability, a breach of confidentiality occurred, noting concerns about staff discussing an incident with Student X at the bike track.
  1. [27]
    The Appellant submits that the decision to withhold details of the allegation for a protracted period of time, not being provided with the opportunity to have a support person present at the time of suspension and the disregard for the likely breach in confidentiality, cannot be reasonable management action taken in a procedurally fair way.
  1. [28]
    The Appellant further submits that:
  1. evidence of the witnesses was contradictory and based on perception;
  1. support was not provided from Head of Student Services for complex case status until late November 2020 in preparation for transition into a new class for 2021;
  1. no formal evidence was provided by the witnesses with only a secondary statement paraphrased through the principal with no notes taken provided and no follow up interview;
  1. the Appellant's intervention to provide feedback for Student X's needs and to keep everyone safe from harm fell within the Respondent's policies and was a proportionate response in the circumstances; and
  1. her support for the Student was misconstrued by witnesses with obscured vision.

Respondent's submissions in reply

  1. [29]
    In reply, the Respondent submits that the Appellant's quoted passage of the Guidelines is not relevant to the decisions. The Respondent outlines that it is relevant only to the management of allegations which have been assigned an 'SP1' categorisation by the Respondent. The Respondent submits that, on 9 November 2020, the Allegation was assigned an 'SP2' categorisation by the Respondent, as evidenced in the investigation report.

Consideration

Disciplinary finding decision

  1. [30]
    Consideration of the disciplinary finding decision requires a review of the decision to substantiate the allegation to determine if the decision was fair and reasonable in the circumstances.
  1. [31]
    The Respondent submits that they had inadvertently provided erroneous information to the Appellant that an appeal may be filed at the conclusion of the disciplinary process against both the disciplinary finding and disciplinary action decisions, rather than an appeal being filed within 21-days after each decision. Accordingly, the Respondent consented to an extension of time for the decision on disciplinary findings to be determined. In my view an appeal against a disciplinary decision pursuant to s 131(1)(c) of the PS Act may incorporate both the disciplinary finding and disciplinary action decisions.[7] An extension of time is therefore not necessary as the appeal notice was filed within the 21- day statutory timeframe following the decision on disciplinary action.
  1. [32]
    The allegation related to the Appellant’s conduct toward a student with a verified disability who is non-verbal. The Respondent alleged that the Appellant ''acted in a physically inappropriate manner towards Student X by grabbing his hair and pulling him towards the bike shed''.
  1. [33]
    The original notification of the incident came from Mr A who stated the following:

On 4/11/20 at approx. 930am at the Bike Track I saw [the Appellant] pull [Student X’s] hair. Student X was not behaving and had hit [the Appellant] beforehand. However, what I saw happened well after the hitting and [Student X] was pulled so hard by his hair that he was almost pulled off his feet. I saw this, I know [K] saw this, [Ms C] was there but I am unsure if she saw this. This was in my view very painful for [Student X] and a cruel act.

  1. [34]
    The decision maker outlined in the decision pertinent parts of the investigation interview with Mr A, including the following:
  • Mr A considered that you were within your rights to protect yourself when Student X was hitting out at you. However, after approximately three to four seconds after the 'scuffling', the Appellant walked from Mr A's right side, to his left side, and was directly in front of him when the Appellant pulled Student X by his hair at the bottom of his neck and behind his ear, and walked toward the biked shed;
  • The Appellant pulled Student X's hair for around three to four seconds;
  • When the Appellant grabbed Student X's hair and walked past Mr A and Ms B, the Appellant was about one and a half metres away from them;
  • In response to the Appellant's actions, Student X appeared to be confused, scared and terrified. He stumbled as he was being pulled toward the bike shed;
  • Student X's hair was long enough to grab onto, about 40 to 50 mm;
  • The distance from the seat to the bike shed was approximately six metres;
  • The Appellant's conduct in pulling Student X by the hair was unwarranted, uncalled for, inappropriate and cruel;
  • The Appellant pulled Student X's hair for approximately three to four seconds before Mr A approached the Appellant;
  • Mr A cannot recall what he said to the Appellant however his intention in approaching her was to make her stop; and
  • Mr A believed that Ms B reported the incident as they were both shocked and disappointed by the conduct they witnessed. Further, as Student X is non-verbal, they were trying to provide him with a voice to tell somebody what happened.
  1. [35]
    The decision summarised the information provided by Ms C, including the following:
  • Ms C had worked with the Appellant for two years in her role to support the Appellant in her duties;
  • Ms C was standing approximately four to five metres away from the Appellant and Student X at the time the incident occurred. Student X was making lots of noise and was being non-compliant and hitting;
  • The Appellant had her arm between Student X's shoulder blades and escorted him to the bike shed. Whilst walking, the Appellant's arm moved up Student X's head and she saw the Appellant holding Student X's hair. Particularly, she stated that the Appellant grabbed hold of Student X's hair and kept walking him along;
  • She was only able to look up at the Appellant and Student X for a few seconds before returning her attention to the students she was watching. However, when she looked up at the Appellant again, the Appellant was 'still' holding Student X's hair;
  • The Appellant held Student X's hair on the top of his head, using her left hand;
  • After the incident occurred, Mr A approached the Appellant. Ms C did not recall what Mr A said to the Appellant, but she believed he asked if she was okay and to check if Student X was okay; and
  • Following the incident with Student X, the Appellant apologised to Ms C for what happened with Student X. Whilst she cannot recall exactly what the Appellant said, she recalls that the Appellant apologised for what happened with Student X and she believed that the Appellant was apologising for being physical with Student X.
  1. [36]
    The decision outlined pertinent parts of the Appellant's interview with the investigator, summarised as follows:
  • Student X had been hitting out at staff and students in the morning, and on the walk to the bike track;
  • The Appellant is unable to recall why Student X was redirected from the seat at the bike track, but the only reason you would do it, was if he had harmed or intended to cause harm to another person;
  • The Appellant does not generally work on trying to redirect Student X's behaviour, but 'put in a behaviour plan so that all the issues so [you] don’t have to manage behaviour. [You] manage the things before'. Most of Student X's issues are sensory, so you put together a sensory program within the classroom timetable;
  • The Appellant usually provides feedback on Student X's arms by running her fingers up and down his forearm or massage his fingers as they are walking.
  • The Appellant explained that students with autism spectrum disorder do not have a good idea of where they are in space and that they can get feedback from pressure, some students like a light touch and some like a really firm touch. Student X liked very firm touch;
  • The Appellant did not know whether touching Student X's head was an approved strategy and recorded in Student X's individual learning plan;
  • In relation to the allegation, the Appellant provided a low tone, calm, verbal instruction with signs for Student X to stand. The Appellant placed her hand on Student X's head to provide feedback and to ensure both parties were safe and protected from harm. The Appellant guided Student X to a quiet, safe place on the grassed area, near the bike shed to sit, which he did. The Appellant did this because it provided vision to other students in the class for safety and it provided proximity and selective attention to Student X;
  • The Appellant's hand was flat on Student X's head. At no point did the Appellant exert any force on Student X's hair or head to redirect him;
  • [Mr A] came to assist and advised the Appellant that the area was open to people being able to observe, as it overlooked the beach, the car park, the staff car park, the walking path and the coffee van, and he expressed something about being reported by a parent, on another occasion. [Mr A] then attempted to talk to Student X, and he hit [Mr A].
  • The Appellant does not generally put her hand on Student X's head, but because he had been quite aggressive in the morning, she wanted to keep herself as far away as she could, to provide feedback. Further, putting her hand on his head also gave her feedback as to whether Student X was going to move forward suddenly to hit, because it was easier for you to step out of the way than to remove his hand;
  • During morning tea time, the Appellant reflected on the incident that occurred with Student X with [Ms C], and said that she would have preferred not to have put her hand on Student X's head because it may have looked as if she were causing harm to him and not just providing him feedback and keeping at a distance to keep her safe.
  1. [37]
    The Appellant submits that she was not advised of the substance of the allegations against her until 12 July 2021, approximately 8 months following her original suspension. This period seems to be quite lengthy, however it appears that a secondary unrelated disciplinary process was underway throughout much of this time. As I understand it, this secondary process was withdrawn.
  1. [38]
    The Appellant submitted photographs of the bike track and marked the position of Student X and Mr A with an implied suggestion that Mr A's view was obscured. These images do not demonstrate that Mr A's vision of the event was obscured, particularly given that the incident occurred whilst the Appellant was walking with Student X.
  1. [39]
    The decision indicated that particular weight was giving to Mr A's account on the basis that he was so concerned by the Appellant's conduct that he approached the Appellant at the time of the incident and reported the conduct afterwards. The decision maker determined that the Appellant's evidence was unclear and inconsistent. These findings were open to the decision maker on the basis of the investigator interviews. It was also reasonable to determine that there was no evidence of a reason for the witnesses to contrive their evidence.
  1. [40]
    The decision maker determined that grabbing Student X's hair and pulling him toward the bike shed was highly inappropriate and unreasonable and did not align with the Appellant's obligations to adhere to the Restrictive Practices Procedure and the allegations against employees in the area of student protection Guidelines. In addition, the decision maker determined that the Appellant's conduct fell below the standards expected as an Experienced Senior Teacher at a Special School, in how the department expects Teachers to interact with a student with an identified intellectual disability. It was open to the decision maker to determine that on the basis of the findings above, the Appellant had contravened, without reasonable excuse, a standard of conduct, namely cl 3.1 of the Code of Conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [41]
    The Appellant denied any inappropriate physical contact with Student X, including grabbing and pulling Student X's hair. The Appellant submitted that the only contact made with Student X was in a way of support and correction with the physical contact falling into the permitted range outlined in the Restrictive Practice Policy and Guidelines. The Appellant submits that the physical interaction was necessary in the circumstances where Student X was creating a risk of harm to himself, other students and the Appellant, was reasonable in nature and a proportionate response.
  1. [42]
    The decision maker considered the Appellant's response but notes that no evidence was provided to support the contention that Student X had been a risk to the safety of other students. The decision maker notes that Mr A and Ms C could not identify any immediate foreseeable risk of harm to Student X or other students, rather the consistent evidence was that Student X was hitting the Appellant and being non-compliant and in response the Appellant grabbed him by the hair and walked him toward the bike shed.
  1. [43]
    The decision maker also determined that even if it were the case that Student X had been creating a risk of harm to other students, the kind of physical intervention used by the Appellant was not appropriate or proportionate in the circumstances. This conclusion was open to the decision maker on the evidence before them. 
  1. [44]
    The Appellant submits that there was no incident report by any staff to indicate that Student X was physically hurt and that there were no parent notes to indicate that the Student went home hurt. The Appellant refers to an email from Ms Gabrielle Callaghan, Senior Complaints and Risk Advisor where it was outlined that 'there was no injury reported'. I note the Appellant's reference to a section of the Guidelines which states ''If there is no physical injury or minor scratches and minor bruising to the student and the employee has no known adverse history or pattern of behaviour, this incident may be dealt with via localised fact finding culminating in informal resolution being facilitated between the parties.'' The Appellant submits that she has had no previous allegations in her career with the Respondent of over 30 years. The Respondent submits that the quoted paragraph is relevant only to the management of allegations which have been assigned an SP1 categorisation by the Respondent. On 9 November 2020, the Allegation was assigned an SP2 categorisation, which is a categorisation of more serious conduct. In circumstances where the conduct was determined to be of a more serious nature, it was open to the Respondent to pursue a disciplinary process rather than informal resolution through management action.
  1. [45]
    The decision maker considered that the evidence of Ms C and Mr A was consistent enough to determine that the Appellant used her left hand to grab Student X's hair and pulled him toward the bike shed. It was open to the decision maker to place significant weight on the evidence of these witnesses on the basis that they were standing no more than five metres away at the time of the incident. Accordingly, it was open to the decision maker to determine that the Appellant had acted in a physically inappropriate manner towards Student X by pulling his hair. The disciplinary finding that the Appellant had contravened without reasonable excuse a standard of conduct, namely cl 3.1 of the Code of Conduct in a way that is sufficiently serious to warrant disciplinary action was fair and reasonable in the circumstances.

Disciplinary action decision

  1. [46]
    It is firstly noted that the decision maker proposed a penalty of reduction in renumeration, a reprimand and a transfer. Following consideration of the Appellant's response, the decision maker determined that the disciplinary action imposed will be a reprimand and transfer only.
  1. [47]
    The Appellant made detailed submissions about her background and commitment to teaching students with intellectual and other disabilities. The Appellant submits that she is an experienced teacher who has worked with students from 18 months to 20 years of age with varied and significant disabilities.
  1. [48]
    The Appellant made significant submissions about the impact of the proposed reduction in renumeration, however it is unnecessary to consider these submissions as the Respondent has decided not to impose this disciplinary action.
  1. [49]
    The Appellant included a medical certificate in her submissions indicating that a 50 minutes drive each way to work would cause significant harm to her rheumatological condition. The disciplinary action decision included the transfer of the Appellant to 'another school (to be determined) within 50 minutes of [the Appellant's] home'. The reference to a 50 minute drive is a maximum timeframe, and it may be the case that the school to which the Appellant is transferred will be less than a 50 minute drive. I note the decision maker's direction to the Appellant to provide evidence of her medical condition to the Region who will consider her medical condition when considering the disciplinary transfer to another school.
  1. [50]
    The decision maker considered the Appellant's length of service with the Department and noted that the Appellant had not been the subject of allegations prior to this disciplinary process. It was open to the decision maker to consider that these factors do not outweigh the seriousness of the conduct in circumstances where the Appellant had 32 years of experience and had undertaken various training courses and workshops on the expectations of appropriate conduct towards students.
  1. [51]
    The decision outlined consideration of the Appellant's human rights, acknowledging that the decision to impose disciplinary action may limit the Appellant's right to take part in public life (through employment in the public service) and the right to privacy and reputation (which extends to protect professional relationships and reputation) because the findings and disciplinary action will form part of the Appellant's formal disciplinary history which may need to be disclosed in certain circumstances. The decision maker determined that any limitation on these rights was reasonable and demonstrably justified as the disciplinary action has the legitimate purpose of protecting the public, maintaining proper standards of conduct by public service employees and protecting the reputation of the public service. It was open to the decision maker to determine that this purpose outweighs the potential impact on the Appellant’s human rights.
  1. [52]
    In circumstances where the substantiated allegation and disciplinary finding was serious, I accept that the disciplinary action is towards the lower end of the disciplinary scale. It is in my view fair and reasonable that the Appellant be transferred to another school at level and subject to a reprimand.
  1. [53]
    The Appellant made substantial submissions contending that the suspension decision was not made in accordance with the Suspension Directive. An appeal against a suspension decision must be filed within the statutory timeframe of 21 days. It is not possible to delay filing an appeal against a suspension decision until a decision is made regarding disciplinary action without reasonable explanation for the delay.  It appears from the Respondent's submissions that at no time was the Appellant suspended without remuneration in relation to this disciplinary process, and as such that decision was not appealable pursuant to s 131 of the PS Act. The Appellant's submissions seem to relate to a decision to suspend the Appellant without renumeration in connection to a second disciplinary process that was subsequently discontinued. The suspension process and allegation that the Suspension Directive was not followed in the unrelated secondary disciplinary process cannot be considered as part of this appeal.
  1. [54]
    The Appellant submits that 'in all probability' a breach of confidentiality occurred following staff discussions of an incident with Student X. The Appellant submits that this does not follow the relevant terms of reference and guidelines for allegations against employees in the area of student protection. In circumstances where the conduct was witnessed by a number of people, it is unclear where the breach in confidentiality occurred. Whilst the Respondent is obliged to maintain confidentiality, there is no evidence before me that the Respondent was responsible for any contravention of this obligation.
  1. [55]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[8] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[9]

  1. [56]
    Applying the principles outlined above, I do not consider that the disciplinary decisions lack justification in the circumstances. The disciplinary action is, in my view, proportionate to the substantiated conduct.
  1. [57]
    Based on the information before me, I am satisfied that the decisions are fair and reasonable in the circumstances.

Suppression

  1. [58]
    The Appellant submits that all persons and the school be de-identified in the decision as publication may identify the name of the student which is contrary to public interest.
  1. [59]
    The relevant principles applied in exercising the discretion for suppression have been summarised in Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),[10] where Deputy President Hartigan observed:
  1. [22]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:

97  Publishing decisions etc.

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

Note -

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

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

…

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

…

  1. [44]
    It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
  1. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
  1. [46]
    As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.
  1. [60]
    As noted above in Aurizon, it is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying children. Identifying details including the Appellant's name, witness names and the school may well result in the identification of Student X. In circumstances where such details may lead to the identification of Student X, non-publication of the names of witnesses and the Appellant along with the school is appropriate.
  1. [61]
    Pursuant to r 97(3) of the Industrial Relations (Tribunal) Rules 2011 (Qld), the Appellant's name, witness names, and the school name will be supressed in any publication of this decision.

Orders

  1. [62]
    I make the following orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed; and
  1. Pursuant to Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the Appellant, witnesses, and the school in this appeal are not to be published.

Footnotes

[1] PS Act, s 93(1), (repealed).

[2] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[3] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.

[4] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[5] IR Act s 562B(3).

[6] [2021] QIRC 313.

[7] See Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330 and O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283.

[8] [2019] QSC 170.

[9] Ibid [207]-[209].

[10] [2023] QIRC 167, [22] – [24]. Citations omitted.

Close

Editorial Notes

  • Published Case Name:

    AN v State of Queensland (Department of Education)

  • Shortened Case Name:

    AN v State of Queensland (Department of Education)

  • MNC:

    [2023] QIRC 289

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    05 Oct 2023

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

Cases Cited

Case NameFull CitationFrequency
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
1 citation
Jump To
Cite 1 - [2021] QIRC 263
Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 330
2 citations
Jump To
Cite 1 - [2021] QIRC 330
Cite 2 - [2021] QIRC 330
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167
2 citations
Jump To
Cite 1 - [2023] QIRC 167
Cite 2 - [2023] QIRC 167
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
2 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1995] 2 Qd R 10
Maher v Workers' Compensation Regulator [2021] QIRC 313
2 citations
Jump To
Cite 1 - [2021] QIRC 313
Cite 2 - [2021] QIRC 313
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
1 citation
Jump To
Cite 1 - [2023] QIRC 283

Cases Citing

Case NameFull CitationFrequency
Carr v State of Queensland (Department of Education) [2024] QIRC 2103 citations
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
1

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