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Smith v State of Queensland (Queensland Health)[2023] QIRC 296

Smith v State of Queensland (Queensland Health)[2023] QIRC 296

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Smith v State of Queensland (Queensland Health) [2023] QIRC 296

PARTIES:

Smith, Paul

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

TD/2021/98

PROCEEDING:

Application for reinstatement

HEARING DATES:

27, 28, February 2023, 1, 2 and 3 March 2023 and 18 August 2023

DELIVERED ON:

13 October 2023

DATES OF FINAL WRITTEN  SUBMISSIONS:

Applicant's written submissions filed on 9 June 2023, written submissions in reply filed on 7 July 2023, further  written submissions filed on 1 September 2023 and further written submissions in reply filed on 20 September 2023

Respondent's written submissions filed on 30 June 2023 and further written submissions filed on 15 September 2023

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The Directions Orders contained in paragraph [400] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – Applicant employed by the Respondent in the Gold Coast Hospital and Health Service – Applicant attended work-related social function – three allegations that the Applicant, while at the function, contravened cl 1.5 a. of the Code of Conduct for the Queensland Public Service by failing to treat a work colleague and a member of the public with courtesy and respect – external investigation concluded that the allegations were capable of being substantiated – disciplinary process found that the three allegations were substantiated – Applicant's employment terminated  – Applicant applied for reinstatement – whether Applicant's dismissal harsh, unjust or unreasonable – two of the three allegations substantiated on the evidence – Applicant's dismissal was unreasonable because dismissal was disproportionate to the grounds upon which the Applicant was liable for discipline – whether Applicant should be provided a remedy under the Industrial Relations Act 2016 – reinstatement impractical because Applicant's position was abolished – Applicant's re-employment not impracticable – further evidence needed as to whether the Applicant can be re-employed pursuant to s 321 of the Industrial Relations Act 2016

STATUTES – SUBORDINATE LEGISLATION – CONSTRUCTION – RELEVANT PRINCIPLES – ORDINARY AND GRAMMATICAL CONSTRUCTION – whether the Code of Conduct for the Queensland Public Service is a statutory instrument within the meaning of the Statutory  Instruments Act 1992 – construction of cl 1.5 a. of the Code of Conduct for the Queensland Public Service – meaning of 'members of the public' – construction based on the text of the Code of Conduct for the Queensland Public Service

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Code of Conduct for the Queensland Public Service, cl 1.5

Discipline: Directive 14/20, cl 8.3

Discipline (Directive 05/23), cl 9.3

Industrial Relations Act 2016, s 316, s 319, s 320, s 321 and s 322

Public Service Act 2008, s 137, s 187, s 188 and s 190

Public Sector Act 2022, s 91

Public Sector Ethics Act 1994, s 6, s 10 and s 12A

Statutory  Instruments Act 1992, s 7, s 14 and sch 1

CASES:

Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 028

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Browne v Dunn (1894) 6 R 67

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39

Carey v President of the Industrial Court of Queensland [2004] QCA 62; (2004) 2 Qd R 359

Etherton v Public Service Board [1983] 3 NSWLR 297

Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503

Fox v Percy [2003] HCA 22; (2003) 214 CLR 118

G v H [1994] HCA 48; (1994) 181 CLR 387

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

Lam v Gold Coast Hospital and Health Service [2021] ICQ 010

Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94

Marchant v Workers' Compensation Regulator [2023] QIRC 203

Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

Nesbit v State of Queensland [2021] ICQ 005

Nicholson v Heaven and Earth Gallery Pty Ltd [1994] IRCA 43; (1994) 57 IR 50

Queensland Teachers Union of Employees v Department of Education [2000] QIC 65; (2000) 165 QGIG 767

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1

Re Mullen [1995] 2 Qd R 608

Robbins v Harness Racing Board [1984] VR 641

R v A2 [2019] HCA 35; (2019) 269 CLR 507

Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496

Smith v State of Queensland (Queensland Health) and Anor [2021] QIRC 340

Stark v P&O Resorts (Heron) Island (1993) 144 QGIG 914

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter [2014] FWCFB 7198

Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

TEXT CITED:

JRS Forbes, Justice in Tribunals (The Federation Press, 2002)

APPEARANCES:

Mr T. Spence of Counsel, instructed by Mr N. Saines of Saines Legal for the Applicant.

Ms A. Freeman of Counsel instructed by Ms L. Trickey of McCullough Robertson for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Mr Paul Smith was employed by the State of Queensland, through Queensland Health ('the Department'), in the Gold Coast Hospital and Health Service ('the Health Service'). Mr Smith was employed in the position of Service and Data Manager, classification AO5. Mr Smith was so employed from 29 June 2020.
  1. [2]
    Mr Smith was dismissed from his employment, effective 25 October 2021, by the Chief Executive of the Health Service, Mr Ron Calvert. This was because of Mr Smith's substantiated conduct.[1]  The substantiated conduct did not occur during Mr Smith's ordinary hours of work in his position; it occurred at a Health Service sponsored event that took place on the evening of 4 December 2020 at the Gold Coast Convention and Exhibition Centre ('the Centre') known as the Golden Gala Awards ('the Gala').  The Gala was an awards night sponsored by the Gold Coast Hospital Foundation.
  1. [3]
    Following the Gala, and complaints made about Mr Smith's alleged conduct, an external investigation was undertaken. A disciplinary process followed.
  1. [4]
    In his letter to Mr Smith dismissing him, Mr Calvert stated that he was reasonably satisfied Mr Smith was guilty of misconduct within the meaning of s 187(1)(b) of the           Public Service Act 2008 ('the PS Act').[2]  This stated disciplinary finding was contrary to the actual disciplinary finding, made in the course of the disciplinary process, by Ms Hannah Bloch, Executive Director, People and Corporate Services ('Ms Bloch'). Ms Bloch found that there were grounds to discipline Mr Smith pursuant to s 187(1)(g) of the PS Act.[3]
  1. [5]
    There were three substantiated allegations. Ms Bloch found that during the Gala, Mr Smith failed to treat two people with courtesy and respect as required by cl 1.5 a. of the Code of Conduct for the Queensland Public Service ('the Code'), namely:
  • Mr Smith failed to treat Ms Emma Mockler, a co-worker, with courtesy and respect when he engaged her in a heated conversation and after repeated requests to move away from Ms Mockler, he remained in her presence making her feel intimidated ('Allegation One' or 'the first substantiated allegation');[4]
  • Mr Smith failed to treat Ms Cameal Bekkeli, a member of the public,[5] with courtesy and respect when he engaged her in an aggressive manner after ignoring repeated requests to move away from Ms Mockler ('Allegation Two' or 'the second substantiated allegation');[6] and
  • Mr Smith failed to treat Ms Mockler, a co-worker, with courtesy and respect when he engaged her in an aggressive manner in the passage of the Centre after she (Ms Mockler) stepped in front of him and Ms Bekkeli ('Allegation Three' or 'the third substantiated allegation').[7]
  1. [6]
    By application filed on 15 November 2021, Mr Smith, pursuant to ch 8, pt 2 of the Industrial Relations Act 2016 ('the Act'), applied for reinstatement. Mr Smith contends that his dismissal was unfair in that it was harsh, unjust or unreasonable. The remedy Mr Smith seeks is re-employment to a position, classification AO5, together with other orders compensating him for lost remuneration and maintaining his continuity of service. The Department resists Mr Smith's application, both as to whether his dismissal was harsh, unjust or unreasonable and, if it was, as to the remedy he seeks.
  1. [7]
    In my view, having regard to the evidence, and to the submissions of the parties, the questions for my determination are:
  • did cl 1.5 a. of the Code apply to Mr Smith at the Gala, such that he was obliged to treat Ms Mockler and Ms Bekkeli with courtesy and respect?
  • were the three allegations fairly and properly drawn such that Mr Smith was afforded procedural fairness?
  • on the evidence, did Mr Smith engage in the conduct the subject of the three substantiated allegations?
  • on the evidence, was the conduct in which Mr Smith did engage, conduct that contravened, without reasonable excuse, cl 1.5 a. of the Code in a way that was sufficiently serious to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act?
  • was Mr Smith's dismissal harsh, unjust or unreasonable having regard to the matters referred to in s 320 of the Act? and, if so
  • should the Commission make an order under s 321 or s 322 of the Act?
  1. [8]
    For the reasons that follow, I find that:
  • Mr Smith's dismissal was unfair, within the meaning of s 316 of the Act, because it was unreasonable;
  • Mr Smith's re-employment is not impracticable; and
  • I will further hear the parties about other positions, at the AO5 classification, that the Department has available.

The Industrial Relations Act 2016 and the applicable legal principles

  1. [9]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [10]
    A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted.  Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer.  Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[8]
  1. [11]
    In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[9]
  1. [12]
    Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
  • whether the employee was notified of the reason for dismissal;
  • whether the dismissal related to:

–the operational requirements of the employer's undertaking, establishment or service; or

–the employee's conduct, capacity or performance; and

  • if the dismissal related to the employee's conduct, capacity or performance:

–whether the employee had been warned about the conduct, capacity or performance; or

–whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

  • any other matters the Commission considers relevant.
  1. [13]
    In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[10]
  1. [14]
    If it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[11]
  1. [15]
    In matters involving dismissal for misconduct, the correct approach was confirmed in Lam v Gold Coast Hospital and Health Service ('Lam')[12] where Davis J, President relevantly stated:

[21]  It is sufficient for me to observe that the Deputy President correctly approached his task by reference to the following:

  1. The application to the QIRC is not an appeal from the decision to dismiss.
  1. The QIRC must hear all the evidence relevant to the question of whether the dismissal was unfair and to make a determination on that issue.
  1. The QIRC must determine whether the four allegations are proved on the balance of probabilities applying the Briginshaw principles.
  1. If the allegations are proved, the QIRC must determine whether those allegations amount to misconduct as defined in the PS Act.
  1. The QIRC must then apply Chapter 8, Part 2 of the IR Act and determine whether the dismissal was unfair.[13]
  1. [16]
    In my view, leaving aside the fact that Lam was a case that involved misconduct within the meaning of the PS Act, the above principles generally apply to an application for reinstatement where, as in the present case, the allegation is that a public service  employee contravened, without reasonable excuse, a relevant standard of conduct contained in the Code, contrary to s 187(1)(g) of the PS Act.
  1. [17]
    I say generally, because:
  • in White v State of Queensland (Central Queensland Hospital and Health Service) ('White'),[14] Deputy President O'Connor[15] stated that while it is accepted that an applicant carries the overall onus of proving that their dismissal was harsh, unjust or unreasonable, in cases involving a dismissal on grounds which allege serious or criminal misconduct, the onus of proof shifts from the applicant employee to the respondent employer (in relation to proving that serious or criminal misconduct); and
  • in Alfred v State of Queensland (Department of Justice and Attorney General) ('Alfred'),[16] Deputy President O'Connor:

–stated while the standard of proof to be applied is on the balance of probabilities, it is not the case that a high degree of satisfaction as to the evidence, as described in Briginshaw v Briginshaw ('Briginshaw')[17] is required where an employee is dismissed for a contravention of the Code; and

–in so doing, his Honour rejected an argument from the applicant that the principle in Briginshaw applied in that case because the consequence for the applicant, his dismissal, was grave.[18]

  1. [18]
    In relation to the question of the onus of proof about the alleged conduct, Mr Smith was not dismissed for misconduct within the meaning of the PS Act.[19] Mr Smith was dismissed for contravening, without reasonable excuse, cl 1.5 a. of the Code in a way that was sufficiently serious to warrant disciplinary action. The cases where the onus of proof shifts to an employer to prove certain conduct are, in my opinion, limited to misconduct[20] or criminal conduct.[21]
  1. [19]
    By comparison to cases involving misconduct, this is not a case where the substantiated allegations against Mr Smith involved serious wrong doing on his part to the extent that the onus of proving those allegations, on the balance of probabilities, shifts to the Department. The substantiated allegations, or the disciplinary findings of fact, upon which Mr Smith was actually dismissed, were that he failed to treat two people with courtesy and respect, contrary to cl 1.5 a. of the Code.[22] 
  1. [20]
    As to the principle in Briginshaw,[23] that principle does not go to the standard of proof but to the standard of evidence, such that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of fraudulent or criminal conduct.[24]
  1. [21]
    Mr Smith submitted that the principle in Briginshaw applies in terms of whether or not the strength of the evidence establishes that he engaged in the conduct the subject of the three substantiated allegations.[25] The Department submitted that the onus was on Mr Smith to prove that his dismissal was harsh, unjust or unreasonable on the balance of probabilities '… applying the principles espoused in Briginshaw'.[26]
  1. [22]
    However, in G v H,[27] Deane, Dawson and Gaudron JJ[28] relevantly stated:

It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that “[t]he seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal”. Thus, if there is an issue of “importance and gravity”, to use the words of the trial judge, due regard must be had to its important and grave nature.

Not every case involves issues of importance and gravity in the Briginshaw v Briginshaw sense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided.[29]

  1. [23]
    While the consequence for Mr Smith arising from the substantiated allegations has been grave, namely his dismissal, this is not a case where the substantiated allegations against Mr Smith involved serious wrong doing on his part. In the absence of full argument on this point, I will follow Alfred.  I will not accept that the principle in Briginshaw applies in terms of whether or not the strength of the evidence establishes that Mr Smith contravened cl 1.5 a. of the Code.

The parties' cases in outline

  1. [24]
    In summary, Mr Smith submits that:
  • in relation to the first substantiated allegation:

–his alleged conduct was mischaracterised and exaggerated by Ms Mockler and Ms Bekkeli;

–he used no profane language, engaged in no physical violence and made no threats of violence; and

–it was Ms Mockler who acted in an unnecessarily aggressive manner towards him, used profane language and made a threat of violence;[30]

  • in relation to the second substantiated allegation:

–his alleged conduct was mischaracterised and exaggerated by Ms Bekkeli;

–he used no profane language, engaged in no physical violence and made no threats of violence; and

–it was Ms Bekkeli who acted in an unnecessarily aggressive manner towards him, calling him a '… low life scum bag' and telling him to '… fuck off';[31]

  • in relation to the third substantiated allegation:

–Ms Mockler actively chose to engage with him by moving approximately five metres across the Centre foyer to place herself between him and Ms Bekkeli; and

–he used no profane language, engaged in no physical violence and made no threats of violence;[32]

  • further, or in the alternative:

–he was denied procedural fairness during the investigation into the incidents at the Gala because:

  • the complaints against him were initiated by Ms Tracey Brook, at that time employed in the Health Service as Director, Transformation Office, who was motivated by significant prejudice against him; and
  • the evidence given by Ms Mockler, Ms Bekkeli and Mr Roy Bekkeli –  Ms Bekkeli's husband who was present at the Gala – was exaggerated and mischaracterised his conduct by reason of their prejudiced opinions of him;[33] and

–his (alleged) conduct, if substantiated, was not serious enough to warrant his dismissal where:

  • he was not suspended from his employment and continued to attend the workplace without incident between the date of the Gala and his dismissal; and
  • he undertook appropriate training and demonstrated personal insight to ensure that the conduct on 4 December 2020 was not repeated;[34] and
  • he should be re-employed in an AO5 role with the Health Service, where his continuity of service is maintained and that he is compensated for his loss by reason of his dismissal.[35]
  1. [25]
    The Department, in summary, contends that:
  • Mr Smith's conduct, the subject of the three allegations, is substantiated on the evidence, both at the time of the disciplinary process and at the hearing of this matter;
  • Mr Smith was afforded procedural fairness throughout the disciplinary process, which is not denied by Mr Smith;
  • Mr Smith's dismissal was not disproportionate to the conduct so proved and his short length of service, such that the termination of his employment was not unfair;
  • Mr Smith's reinstatement is not reasonably practicable as his position was abolished on 1 July 2022 as a result of organisational change, which is not disputed by Mr Smith;
  • in the event that re-employment is considered by the Commission, it would not be practicable as there has been a complete loss of trust and confidence, such that Mr Smith's relationship with the Department is irretrievable;[36]
  • Mr Smith's submission that he was denied procedural fairness during the external investigation should be rejected;[37] and
  • the Commission should conclude that:

–Mr Smith did engage in the alleged conduct on 4 December 2020 at the Gala; and

–Mr Smith's conduct was in breach of the Code, which was sufficiently serious to warrant the disciplinary action of termination pursuant to section 187(l)(g) of the PS Act.[38]

Relevant background

  1. [26]
    To appreciate the submissions made by the parties, and my approach to determining Mr Smith's application, it is convenient, at this point, to set out some of the background facts. 

Mr Smith's separation from his wife and their mutual undertakings

  1. [27]
    During the period of Mr Smith's employment in the Health Service, his estranged wife, Ms Kathleen Smith, also worked in the Health Service. Ms Smith is still employed in the Health Service. Ms Smith has been employed in the Health Service since November 2014.[39] Ms Smith did not give evidence.
  1. [28]
    Mr Smith and Ms Smith, after approximately 15 years of marriage, separated in February 2020.[40] They have two children.
  1. [29]
    On about 25 February 2020, Ms Smith made an application for a Protection Order under the Domestic and Family Violence Protection Act 2012 against Mr Smith. Mr Smith made a cross-application for a Protection Order against Ms Smith.[41] On 7 May 2020, Mr Smith and Ms Smith, without any admission of liability, mutually agreed to withdraw their applications for Protection Orders and they entered into a mutual undertaking, whereby they agreed, inter alia, '… not to approach each other within 100 metres', except in certain named circumstances ('the first mutual undertaking').[42]
  1. [30]
    On around 11 May 2020, Mr Smith applied for the position from which he was dismissed, namely, Service and Data Manager, classification AO5, Diagnostic and Sub-speciality Services ('the Service and Data Manager position').[43] 
  1. [31]
    Soon after the first mutual undertaking, on about 15 May 2020, Mr Smith proposed amendments to it, including that they were both allowed to be within 100 metres of each other – but keeping 1.5 metres social distancing – at schools, churches and sporting events.[44] Mr Smith accepted that this proposed amendment did not allow for him and    Ms Smith to be within 100 metres of each other at a workplace ('the proposed amendment').[45] In cross-examination, Mr Smith accepted that the proposed amendment was '… the state of play' between him and Ms Smith at that time and at the time when he started working at the Health Service. From this evidence, I infer that the proposed amendment was accepted by Ms Smith on or about 15 May 2020 ('the second mutual undertaking').[46]

The hand sanitizer allegation made by Mr Smith against Ms Smith

  1. [32]
    By email dated 1 June 2020, Mr Smith sent an email to Mr Calvert, '… as a whistleblower who is afforded protection under the Whistleblowers Protection Act 1994'  alleging that Ms Smith has stolen '… Microshield hand sanitiser and numerous office supplies such as notebooks, pens, sticky notes and folders for her personal use at home'. Mr Smith described Ms Smith's alleged conduct as '… a serious example of misconduct worthy of investigation in confidence' and that it was not '… an isolated incident and it has been happening over several years'.[47] Mr Smith attached, to that email, photographs that he had taken when they were still together,[48] '… of the Microshield hand sanitiser that she has in her current and usual place of residence'[49] ('the hand sanitiser allegation').
  1. [33]
    By letter dated 19 November 2020, Mr Mark Luchs, Acting Chief Digital Officer, Transformation and Digital Services, advised Mr Smith that the Health Service's Matters Assessed Committee  ('the MAC') determined that the hand sanitiser allegation met the standards of suspected corrupt conduct, level 3, which did not require the allegation to be reported to the Crime and Corruption Commission, but that the relevant management team had commenced local actions. Mr Smith was further informed that '… appropriate action has been taken to deal with the matter'.[50]
  1. [34]
    In cross-examination, Mr Smith disagreed that by sending the email to Mr Calvert, he was trying to cause problems for Ms Smith at her place of work.[51]

Mr Smith's employment interview and the commencement of his employment in the Health Service

  1. [35]
    On 4 June 2020, Mr Smith was interviewed for the Service and Data Manager position, but, in the course of the interview, he did not inform the interviewers:
  • that Ms Smith worked in the Health Service;[52]
  • of the first mutual undertaking;[53] and
  • of the second mutual undertaking.[54]
  1. [36]
    On 29 June 2020, Mr Smith commenced full-time employment in the Health Service.[55]  
  1. [37]
    Mr Smith's evidence was that, at that time, he did not inform the Health Service of the second mutual undertaking because he understood he did not have to do so because it was a civil matter.[56]
  1. [38]
    Ms Smith worked at the same location as Mr Smith, being the Gold Coast University Hospital in Southport. Ms Smith worked in the Digital Engagement Team.  Mr Smith worked in Diagnostic and Sub-speciality Services.  Mr Smith's evidence was that            Ms Smith worked in a building (the Cohort Building) which was approximately 900 metres from the building in which Mr Smith worked in the Hospital.[57]
  1. [39]
    Mr Smith was trained in the Code when he commenced employment with the Health Service.[58]
  1. [40]
    On about 12 July 2020, a copy of the first mutual understanding was provided to Ms Jacquelynne Roberts, Human Resources Business Partner of the Health Service, by an email chain from other employees of the Health Service, including Ms Tracey Brook, at that time, Director of Digital Engagement. Ms Brook had received the copy of the first mutual undertaking from Ms Smith.[59]
  1. [41]
    By email sent on 22 July 2020 from Mr Smith to Ms Roberts, Mr Smith informed Ms Roberts of  the second mutual undertaking.[60]
  1. [42]
    Mr Smith's position involved him providing a high level of leadership to a team of people[61] and he was aware that his managerial behaviour set the tone for the conduct of all employees within the Health Service.[62]

Ms Brook's letter and the safety plan for Ms Smith in 2020

  1. [43]
    On 27 July 2020, Ms Brook sent a three page letter to Mr Calvert and Ms Bloch, entitled ' Not now, not ever: A manager's view of supporting staff  affected by domestic and family violence' ('Ms Brook's letter'). 
  1. [44]
    Ms Brook's evidence was that she sent that letter because she was '… disappointed that Paul Smith was not required to declare, as part of the recruitment process, that he was unable to go within 100 metres of another GCHHS employee.' Ms Brook stated she '… was also disappointed that Kathleen no longer felt safe at work due to Paul's employment within GCHHS.'[63]
  1. [45]
    In Ms Brook's letter, she set out information provided to her by Ms Smith about:
  • her separation from Mr Smith;
  • specific allegations Ms Smith made to her about Mr Smith's alleged behaviour towards her in respect of their separation; and
  • as best as I understand it from the terms of Ms Brook's letter, the first mutual undertaking.[64]  
  1. [46]
    Ms Brook then set out:
  • her understanding of the impact these matters were having on Ms Smith at work; and
  • what were, from her point of view, five current issues in the workplace, namely:

–that '… there is nothing in policy that says he has to declare his relationship to Kathleen or disclose the legal agreement he signed that outlines the conditions of the contract';

–there is now a complex situation to manage concerning Ms Smith's safety and that those in Ms Smith's support network '…  have to be careful about how they behave around her husband in case he feels he is being treated unfairly and puts in a complaint';

–what was once Ms Smith's safe place '… isn't any more';

–Mr Smith's conflict of interest should have been declared and his failure to do so was a '… potential code of conduct breach'; and

–she (Ms Brook) had her own conflict of interest to declare in that if there were any further complaints about Ms Smith's behaviour, she (Ms Brook) would not be able to remain impartial in that she would be '… suspicious about the intent behind it'.[65]

  1. [47]
    By email dated 28 July 2020, Ms Bloch responded to Ms Brook's letter by stating that she completely agreed that '… there are some fundamental gaps in the current policy framework' and that she was '…. so disappointed to hear it could be exploited in such a way as this case'. Ms Bloch also stated that she would '… chat to the team about our options and we are seeking some legal advice as well.' Ms Bloch further stated that if there was '… anything else we can do to support Kathleen please do not hesitate to let me know.'[66] Mr Calvert did not read Ms Brook's letter until it was brought to his attention for the purposes of him preparing his affidavit for this proceeding.[67]
  1. [48]
    Various meetings, email exchanges and communications, between representatives of the Health Service and Mr Smith,[68] and between representatives of the Health Service and Ms Smith,[69] occurred from about July 2020 until later in 2020 because the Health Service wanted to develop a safety plan for both Mr Smith and Ms Smith. As best as I understand the evidence, a safety plan had been developed for Ms Smith in about 2020,[70] although it is not clear if this was a workplace safety plan actually developed by the Health Service for Ms Smith or one that Ms Smith had developed herself with assistance from persons outside of the Health Service.[71]
  1. [49]
    Mr Smith did not see the need for a safety plan to be developed for him at that time (2020).[72]

The review of Mr Smith's Professional Development Plan regarding his communication style

  1. [50]
    In a letter dated 25 September 2020 from Ms Karlene Willcocks, Executive Director, Diagnostic and Sub-speciality Services, Mr Smith was provided with an opportunity to respond to concerns raised about his behaviour towards his subordinate employees. Mr Smith responded by letter dated 2 October 2020.[73] 
  1. [51]
    By letter dated 17 November 2020, Ms Willcocks advised Mr Smith that she was of the view his '… communication style was perceived by the complainants as direct, imposing, uncaring and at times, arrogant' and that she was disappointed he had not reflected on his verbal and non-verbal communication style and how it impacts on others throughout '… this process'.  In order to support Mr Smith to improve his communication and engagement style, Ms Willcocks recommended Ms Felicity Blainey, Administration Manager, review Mr Smith's Professional Development Plan as a priority to ensure that he was supported to '… improve your interpersonal communication'. Ms Willcocks further encouraged Mr Smith to actively participate in any training or development opportunities offered to him and to focus on how he could demonstrate sustained improvement in this area.[74]

The fraud allegation made by Mr Smith against Ms Smith

  1. [52]
    By work email sent on 30 November 2020, from Mr Smith to Mr Ronald Potts, the Health Service's Director of Statutory Compliance and Conduct, Mr Smith stated that:
  • Ms Smith had initiated a vexatious domestic violence order on him, which was withdrawn in lieu of her agreeing to a mutual undertaking '… to which she placed orders on herself to be of good behaviour';
  • his solicitor and his father reminded him of similar acts and similar facts '… which reflects the dishonest personal characteristics' his estranged wife '… has and which she will continue to demonstrate in her work and home life', namely:

–he had been made aware that Ms Smith '… fraudulently took leave' on a particular date while his daughter was in his care at his residence;

–Ms Smith took leave on a particular date so they could both attend mediation for the purpose of settling some parenting matters;

–on two particular dates, Ms Smith moved house, which once again had nothing to do with her '… DV narrative that she had already withdrew from court on the 07 May 2020'; and

–he believed Ms Smith '… has continued to use this DV narrative to her own advantage in the workplace, and this has been at the detriment of myself.'[75]

  1. [53]
    Mr Smith then went on to state a number of other matters, including that:
  • he had been the subject of an investigation because Ms Smith had stated she felt unsafe as a result of, as I understand it, the first mutual undertaking;
  • she had deliberately provided misleading information to Human Resources;
  • he received emails from Ms Smith on her Queensland Government email seeking money from him, he believed Ms Smith was using her position of authority to demand as such and he sought that the matter be investigated; and
  • Ms Smith was dishonest and she was deceitful in that she was fraudulently taking leave to which she was not entitled and was '… speaking untruths to her manager and colleagues'.[76]
  1. [54]
    In cross-examination, Mr Smith disagreed that by sending the email to Mr Potts, he was trying to cause problems for Ms Smith in the workplace.[77]
  1. [55]
    By email dated 16 December 2020 from Mr Potts, Mr Smith was advised that his complaint that Ms Smith had fraudulently taken leave on four particular dates had been assessed against the relevant leave records, and that the information suggested the leave was approved and taken for appropriate purposes, but that some further enquiries were still needed which would be carried out by the Workplace Relations Unit. Further Mr Smith was advised that the use of emails by Ms Smith was consistent with the Information Communication Technology policies and that he (Mr Potts) did not intend to process the matter further.[78]

The 2021 consent Protection Orders

  1. [56]
    On 17 May 2021, Protection Orders, made by consent between Mr Smith and Ms Smith and without admissions, were issued by the Southport Magistrates Court.  They both agreed to be prohibited '… from following, approaching, approaching to be within 100 metres' of each other '...when at any place'[79] ('the 2021 consent Protection Orders').

Mr Smith's 2021 Health Service Safety Plan

  1. [57]
    According to Ms Roberts, in May 2021, Mr Smith told Human Resources of the Health Service that he had concerns for his safety.[80] Between May and June 2021, the Health Service, with Mr Smith's input, developed a safety plan for him ('Mr Smith's 2021 safety plan').[81]
  1. [58]
    In her letter to Mr Smith dated 16 June 2021, attaching Mr Smith's 2021 safety plan as developed by the Health Service, Ms Katie Castles, Manager, HR Business Services stated:

Dear Mr Smith

I refer to recent discussions with you regarding the protection orders issued by the Southport Magistrates Court on 17 May 2021 concerning you and Ms Kathleen Smith pursuant to section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (Orders).

The Orders impose the following conditions that pertain to you, as the respondent:

  1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
  2. The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved (exceptions are detailed in the order).
  3. The respondent is prohibited from following, approaching, approaching to within 100 metres of the aggrieved when at any place (exceptions are detailed in the order).

Gold Coast Hospital and Health Service (GCHHS) has a duty to provide and maintain a safe working environment for all employees, so far as reasonably practicable. The positions that Ms Kathleen Smith and you hold are both located at the same workplace, Gold Coast University Hospital (GCUH). GCHHS's role is therefore to facilitate your compliance with the Orders to the extent that GCHHS can, consistent with its WHS obligations.

The purpose of this letter is to outline the steps taken by GCHHS to date and how it proposes to support you in your employment.

…

Proposed safety plan and our expectations

Whilst GCHHS is not subject to the Orders, we are committed to promoting a healthy and safe working environment in which everyone is treated fairly and with respect, and in which no individual feels bullied, threatened or intimidated. Your safety whilst at work is our priority.

Having considered the Order conditions, the position of GCHHS is that you may be considered to have approached the other person if you:

  1. knowingly physically move/place yourselves to be within 100 m of the other person on the same floor or in the same area of the workplace:
  1. deliberately walk up to the other person in the workplace, with intent or knowledge that this action is bringing you closer to the other person.

GCHHS considers that the Orders do not prevent you from:

  1. accidentally encountering the other person in the workplace e.g. if one person is taking an elevator and it opens to the other person;
  1. being located or working on different levels of the same building in relation to the other person at the same time;
  2. being located or working on the same level of the same building, provided no attempt is made:
    1. to physically move/place one person to be within 100 m of the other person; and/or
    2. for either person to deliberately walk up to the other person, with intent or knowledge that this action is bringing the person closer to the other person.

Based on the above position of GCHHS and in conjunction with the risk assessment and your safety plan, which GCHHS will regularly review, I am reasonably satisfied that it is possible under these specific circumstances for you both to remain employed by GCHHS and work at the same workplace, being GCUH.

To support your safety plan, it is important that you have a clear understanding of how GCHHS expects you to respond to various situations at work.

  1. While at work, you are not to deliberately contact the other person, or to walk up to the other person in the workplace with intent or knowledge that this action is bringing you closer to the other person.
  1. You are to comply with the controls identified in your safety plan.
  1. In the event you find yourself in a scenario where you may be in direct violation of the Order or your safety plan, you are to immediately remove yourself from the situation. We also ask that you promptly let you [sic] line manager know.
  1. You are not to seek or solicit information from GCHHS records or from other employees concerning [the other employee's] whereabouts, movements, work arrangement, duties, job performance, social interactions or similar.
  1. If not already completed and undertaken within the last six months, you must complete the following training by 25 June 2021:
    1. Ethics, Integrity and Accountability, Fraud and Control Awareness and PID (LOL)
    2. Safer Dynamic Risk Assessment (LOL)
    3. OVP Conflict Management and Challenging Behaviour Awareness (LOL)
    4. Understanding Domestic and Family Violence
    5. Familiarise yourself with the Disaster and Emergency Management arrangements, including Code Black procedures, which is available on the GCHHS Intranet page.
  1. Attend and complete a tour provided by our security team of both the internal and external emergency call points for GCUH.
  1. Consider downloading a safety app such as Help Me or Emergency Plus, this can be a vital source of escalation if necessary.
  1. Where possible, please remain in areas under CCTV footage within the Health Service grounds including parking lots (be advised cameras are not present in the back of house stairwells).
  1. Promptly ensure that you communicate to your line manager any change to your situation and your safety plan has been updated to reflect these changes (as appropriate).[82]
  1. [59]
    Mr Smith denies that he has engaged in any conduct towards Ms Smith '… that would meet the definition of domestic violence' and his evidence is that at no time has he been '… charged with or convicted of breaching a Protection Order'.[83]
  1. [60]
    In cross-examination, Mr Smith denied that there was a risk he might come in contact with Ms Smith at the workplace because of the different buildings in which they worked and the size of the workforce and the workplace.[84] I do not accept that evidence. The different buildings in which they worked were, on Mr Smith's evidence, 900 metres apart. In my view, as a matter of common sense, there was a real possibility they may, in either coming to or leaving work or in moving around the Hospital, view each other or that one would view the other or that they may come in close proximity to one another.
  1. [61]
    However, despite the close proximity of the buildings in which Mr Smith and Ms Smith worked, and the chances that they may come within 100 metres of each other when attending their places of work, there is no evidence that Mr Smith, in the time he worked in the Health Service between June 2020 and October 2021:
  • contravened the second mutual understanding;
  • contravened the 2021 consent Protection Orders; or
  • contravened or acted in a way that was inconsistent with the Health Service's expectations of how Mr Smith was to respond to various situations at work, as set out in Ms Castles' letter to Mr Smith dated 16 June 2021, as emphasised above.
  1. [62]
    Similarly, there is no evidence that Ms Smith ever made a complaint to the Health Service alleging that Mr Smith, as an employee of the Health Service, acted towards her, in any way, that was inconsistent with the second mutual understanding, the 2021 consent Protection Orders or the Health Service's expectations of Mr Smith as set out in Ms Castles' letter.
  1. [63]
    At no time, prior to his dismissal, was Mr Smith suspended from duty.[85]

Did cl 1.5 a. of the Code apply to Mr Smith at the Gala such that he was obliged to treat Ms Mockler and Ms Bekkeli with courtesy and respect?

  1. [64]
    Both parties accepted that the Code applied to Mr Smith, when he was at the Gala, in respect of Ms Mockler. Both parties, initially, also accepted that the Code applied to Mr Smith, when he was at the Gala, in respect of Ms Bekkeli.

Allegation One

  1. [65]
    The application clause of the Code relevantly provides that it applies to employees of Queensland public service agencies. As to when it so applies to such employees, the application clause provides:

The Code applies at all times when we are performing official duties including when we are representing the Queensland Government at conferences, training events, on business trips and attending work-related social events.

  1. [66]
    Having regard to the text of the application clause quoted immediately above, my view is that the Code applies to an employee of a Queensland public service agency at conferences, training events and on business trips, when they are representing the Queensland government.
  1. [67]
    Further, in my view, given the use of the word '.. and' in the application clause quoted above, it seems to me that attending work-related social events is a separate circumstance from when the Code applies to an employee of a Queensland public service agency. From a practical point of view, it is accurate to conclude that an employee would be representing the Queensland government if attending a conference, a training event, or while on a business trip. It is less accurate to conclude that an employee always represents the Queensland government at a work-related social event. An employee could be representing the Queensland government at a work-related social event depending on the social event and the reasons the employee was attending the event.
  1. [68]
    Clause 1.5 of the Code provides:

1.5  Demonstrate a high standard of workplace behaviour and personal conduct

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

We will:

a.  treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

b. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment

c. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients

d. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and

e. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

  1. [69]
    The Gala was a social event sponsored by the Gold Coast Hospital Foundation. It reasonably meets the description of a work-related social event.
  1. [70]
    On balance, given that the Code applies to an employee of a public service agency when attending a work-related social event, my view is that cl 1.5 of the Code generally applied to Mr Smith when he was at the Gala. This is because the sub-heading to cl 1.5 of the Code refers to demonstrating a high standard of workplace behaviour '… and personal conduct'.  The reference to personal conduct, as a separate matter to workplace behaviour, in my view, seems to extend the application of the clause to the non-workplace behaviour of an employee, such as an employee's behaviour at a work-related social event.
  1. [71]
    On the date of the Gala, Ms Mockler was an employee of the Health Service, even though she worked in a different part of the Health Service to Mr Smith. Ms Mockler, therefore, would reasonably meet the description of a 'co-worker' within the meaning of cl 1.5 a. of the Code.

Allegation Two

  1. [72]
    In my view, there is a question as to whether Ms Bekkeli was a member of the public, within the meaning of cl 1.5 a. of the Code, in terms of Mr Smith's interaction with her at the Gala.
  1. [73]
    Ms Bekkeli was not employed in the Department[86] and the reason she was at the Gala was to accompany her husband[87] who did work in the Health Service.
  1. [74]
    Was it the case, as seemed to be accepted by Mr Smith,[88] that he was bound by cl 1.5 a. of the Code in respect of Ms Bekkeli?
  1. [75]
    For the reasons given above, the Code applied to Mr Smith, in respect of Ms Mockler,  when he was at the Gala, because the Gala was a work-related social event and she was a co-worker.
  1. [76]
    It is arguable that the material part of cl 1.5 a. of the Code, in so far as it concerns an employee dealing with members of the public, primarily concerns the circumstance where the employee deals with a member of the public in an official capacity, namely, when discharging their duties and responsibilities as an employee of a public service agency. This is because cl 1.5 a. of the Code provides that employees will treat:

[C]o-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them and recognise that others have the right to hold views which may differ from our own.

  1. [77]
    The reference to being '… appropriate in our relationships with them', in my view, may only connote the relationship that an employee has with members of the public in an official capacity. Mr Smith, while at the Gala, certainly had a requisite relationship with Ms Mockler because she was a co-worker. However, it is open to argue that cl 1.5 a. of the Code cannot bind an employee, in respect of their dealing with a member of the public, where there is no connection with the duties and responsibilities of their position.[89]
  1. [78]
    That is, having regard to the heading of cl 1.5, the preamble, the words used in cl 1.5 a. and the words used in cl 1.5 as a whole, does the obligation on an employee, to whom the Code applies, contained in cl 1.5 a. of the Code, to treat members of the public with courtesy and respect:
  • only concern the circumstance where an employee deals with a member of the public directly as part of their employment? or
  • concern any circumstance where an employee deals with a member of the public at any time, including when the employee is attending a work-related social event?
  1. [79]
    I directed the parties to make further written submissions on this point after they had filed their final written submissions.
  1. [80]
    In summary, Mr Smith submitted that:
  • the Code was a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 such that, having regard to the combined effect of s 14(1) and sch 1 of the Statutory  Instruments Act 1992, s 14A(1) of the Acts Interpretation Act 1954 applied to the Code, namely, that in the interpretation of a provision of the Code, the interpretation that will best achieve the purpose of the Code, is to be preferred to any other interpretation;[90]
  • the Code was prepared pursuant to s 12A of the Public Sector Ethics Act 1994 and cl 1.5 of the Code is set out in the part of the Code that relates to 'Integrity and impartiality' as provided for in s 6 of the Public Sector Ethics Act 1994;[91]
  • the Explanatory Notes to the Bills that have led to the current operation of the provisions of the Public Sector Ethics Act 1994, that set standards for public officials to demonstrate integrity and impartiality, confirm that such provisions apply to public officials in performing their official functions;[92]
  • having regard to s 10 of the Public Sector Ethics Act 1994[93] and to the application clause of the Code, the interpretation that best achieves the purpose of cl 1.5 of the Code, having regard to its context and purpose as a whole, is that:

–cl 1.5 of the Code applies to the conduct of a public official when discharging their duties and responsibilities as an employee of a public service agency; and

–conversely, cl 1.5 of the Code does not apply where an employee deals with a member of the public at any time, including when the employee is attending a work-related social event;[94] and

  • because he (Mr Smith) was not at the Gala to discharge the duties and responsibilities as an employee of a public service agency, then Ms Bekkeli was not a member of the public within the meaning of cl 1.5 a. of the Code, or, in the alternative, if he was discharging his duties and responsibilities, Ms Bekkeli was not a member of the public given Ms Bekkeli attended in a private capacity as a guest of her husband.[95]
  1. [81]
    The Department:
  • accepted that the Code is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992, and that the approach to its construction follows the ordinary principles of construction that apply to statutes, including that context, as well as text, is to be considered and that the task is still a text based activity;[96]
  • submitted that:

–the effect of the relevant provisions of the Public Sector Ethics Act 1994, in respect of the content of the Code and its application, turns on the proper interpretation of the words of the Code;[97]

–the application clause of the Code provides that it applies to relevant employees at all times when they are performing their official duties '… including when we are representing the Queensland Government at conferences, training events, on business trips and attending work-related social events'; and because the application clause provides an inclusive meaning of the concept of performing official duties, the Code applies to an employee of a public service agency when attending work-related social events so that such attendance falls within the meaning of '…performing official duties';[98]

–cl 1.5 of the Code is headed 'Demonstrate a high standard of workplace behaviour and personal conduct' and then goes on to provide that a relevant employee will 'treat … members of the public with courtesy and respect';[99] and

–if cl 1.5 of the Code of Conduct only applied to employees dealing with others directly in relation to their duties as an employee, then the clause would not refer to 'personal conduct' and 'private conduct' and the inclusion of those terms clearly anticipates a broader application of clause 1.5 rather to employees directly performing their role as an employee;[100] and

  • further submitted that the:

–Code applied to Mr Smith as an employee of a public service agency whilst he attended the Gala as a work-related social event and that contention was expressly accepted by Mr Smith in his evidence;[101] and

–Ms Bekkeli was a member of the public for the purposes of cl 1.5 a. of the Code, because, on the evidence, as she was not a co-worker or a client of the Health Service, she was a member of the public within its ordinary meaning.[102]

  1. [82]
    I prefer the Department's submissions.
  1. [83]
    Having regard to the principles of construction of a statute, my view is where the meaning of a provision of a statutory instrument, such as cl 1.5 a. of the Code, is disputed, then in construing that provision, both the text and context of the provision is to be considered.[103] Further, consideration of the context includes the instrument's surrounding provisions, what may be drawn from other aspects of the instrument, and the instrument as a whole; and it extends to the mischief which it may be seen that the instrument is intended to remedy.[104] In addition, a consideration of the context of statutory text includes the legislative history and extrinsic materials, and understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text; but legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself.[105]
  1. [84]
    The application clause of the Code is very clear. It provides that the Code applies at all times when an employee of a Queensland public service agency is performing official duties including when such an employee is representing '… the Queensland Government at conferences, training events, on business trips and attending work-related social events'.
  1. [85]
    For the reasons I have given earlier, I surmised that it was open to conclude that the standard of conduct required by cl 1.5 a. of the Code may have only applied when an employee was performing their official duties and responsibilities.
  1. [86]
    However, my view is that, on balance, having regard to the text and purpose of the application clause, and to the text of cl 1.5 as a whole, cl 1.5 a. imposes a standard of conduct on an employee in respect of a member of the public at a work-related social event. There are a number of reasons for this.
  1. [87]
    First, having regard to the application clause, the entire Code, in respect of the standards of conduct for the ethics principles embodied in it, apply when a relevant employee is attending a work-related social event. Clearly enough then, one of the purposes of the Code is to ensure that an employee complies with those standards, not only when the employee is performing the duties of their position, but also in the other circumstances contemplated in the application clause of the Code, including attending a work-related social event.
  1. [88]
    Secondly, the heading to cl 1.5 refers to an employee's personal conduct as well as to the employee's workplace behaviour, which contemplates that clause applies to an employee's conduct away from the workplace.
  1. [89]
    Thirdly, the text of cl 1.5 of the Code is consistent with the application clause. The first paragraph of that clause provides that an employee, to whom the Code applies, has a responsibility to always conduct and present themselves in a professional manner and demonstrate respect for all persons, whether fellow employees, clients or members of the public. These words expressly contemplate that cl 1.5 of the Code has application beyond when the employee is performing the duties and responsibilities of their position.
  1. [90]
    Fourthly, cl 1.5 a. then provides that such an employee will treat co-workers, clients and members of the public with courtesy and respect and be appropriate in such an employee's relationship with those persons, including members of the public. Having regard to the combined effect of the application clause and the text used in cl 1.5 a., the obligation to treat members of the public with respect and courtesy extends to members of the public with whom an employee comes in contact, or with whom they have a relationship (in the broad sense used) when they are performing their official duties and responsibilities, but also when an employee is attending a work-related social event.
  1. [91]
    Fifthly, on the text used, it is open to conclude that the standard of conduct contained in cl 1.5 d., which refers to an employee ensuring their '… private conduct' maintains the integrity of the public service and their ability to perform their duties, contemplates private conduct of the kind different to that contemplated in cl 1.5 a., namely, private conduct which may be inconsistent with the particular duties and responsibilities of the position held by an employee in the public service.
  1. [92]
    Sixthly, the descriptions of the purposes behind the various Bills that gave rise to the Public Sector Ethics Act 1994, as described in the relevant Explanatory Notes, cannot have the effect of suggesting another meaning that is contrary to the plain meaning of the relevant text of the Code and contrary to the context of the relevant provisions of the Code.
  1. [93]
    As referred to earlier, the Gala reasonably meets the description of a work-related social event. Ms Bekkeli was not a co-worker of Mr Smith. Ms Bekkeli attended the Gala because she was accompanying her husband who was employed in the Health Service. There is no evidence that Ms Bekkeli was a client of Mr Smith in his capacity as an employee in the Health Service.  To that extent, as regards Mr Smith's attendance at the Gala, Ms Bekkeli was a member of the public. 
  1. [94]
    Therefore, having regard to the broad application of the Code, in terms of Mr Smith's interactions with her at the Gala, Ms Bekkeli was in no different position compared to that of a member of the public with whom Mr Smith may have had an interaction in the course of performing the duties and responsibilities of his position. 
  1. [95]
    For these reasons, the Code bound Mr Smith while he was at the Gala in respect of Ms Bekkeli. 

Allegation Three

  1. [96]
    For the same reasons as given above, on the date of the Gala, Ms Mockler was an employee of the Health Service.  Therefore, Ms Mockler would reasonably meet the description of a 'co-worker' within the meaning of cl 1.5 a. of the Code.

Were the three allegations fairly and properly drawn such that Mr Smith was afforded procedural fairness?

  1. [97]
    By letter dated 25 May 2021, Mr Grant Brown, Acting Executive Director, People and Corporate Services, invited Mr Smith to show cause why he should not be disciplined in relation to the three allegations ('the first show cause').[106] This letter contained the three allegations, the subject of the three substantiated allegations, and the particulars of those allegations.
  1. [98]
    Mr Brown's letter followed an investigation, and delivery of an investigation report, undertaken by an external Investigator ('the Investigator'). The investigation report is dated 31 March 2021.[107]
  1. [99]
    As a matter of fact, the Investigator drafted the three allegations from the statements gathered after the Gala and after interviewing certain witnesses (other than Mr Smith).[108] This was as a result of the Terms of Reference set for the Investigator.[109] The Investigator found the three allegations could be substantiated.[110] As best as I can make out from the evidence, the particulars were drawn later by the Health Service.[111] The allegations put to Mr Smith in the first show cause were the same as those drafted, without any particulars, by the Investigator.

Allegation One

  1. [100]
    As at 4 December 2020, s 187 of the PS Act relevantly provided:

Grounds for discipline

  1. A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has–

…

  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  1. In this section–

…

relevant standard of conduct, for a public service employee, means–

  1. a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
  1. [101]
    Section 190 of the PS Act relevantly provided that in disciplining a public service employee, a chief executive must comply with the PS Act, any relevant directive of the chief executive of the Public Service Commission and the principles of natural justice.
  1. [102]
    At the material time, the relevant directive was Discipline: Directive 14/20 ('the Directive'). Clause 8.3 of the Directive relevantly provided:

8.3 Show cause process for disciplinary finding

  1. The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. Written details of each allegation in clause 8.3(a) must include:
  1. the allegation
  1. the particulars of the facts considered by the chief executive for the allegation
  1. the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. [103]
    There is a real issue with the way the first allegation and its particulars were drawn.
  1. [104]
    The allegation and the particulars, as stated by Mr Brown, were:

Allegation one

On 4 December 2020 you failed to treat Ms Emma Mockler, a co-worker, with courtesy and respect when you engaged her in a heated conversation and after repeated requests to move away from her, you remained in her presence making her feel intimidated.

Particulars of allegation one:

  1. You attended the Golden Gala Awards on 4 December 2020 with Ms Aimee Ballantine, Project Manager, Transformation Office and other staff from Diagnostic and Sub-specialty Services. Ms Emma Mockler, Business System Analysis, Digital Solution Delivery Service, says that on the night she was made aware you were in attendance, accompanied by her work colleague Ms Ballantine.
  2. Ms Mockler says that at approximately 9.30 pm you engaged with her as you passed her and reminded her she knew you.
  3. Ms Mockler says later that evening at approximately 10.30pm shortly before the conclusion of the function you and Ms Aimee Ballantine approached the Digital Engagement team's table. Ms Mockler described the interaction as follows:
  • At the table you bent down next to her, and while about 30 centimetres from her face you said in a forceful manner 'I know you know who I am', 
  • she felt 'dumbfounded' by this,
  • she stated she was not interested in knowing what you had to say, and stood up and faced you and said words to the effect 'I don't care what you have to say, I am not interested, just get away',
  • you failed to move away and kept repeating words to the effect of 'you think you know the whole story,'
  • after you had repeated this about four times, Ms Mockler looked toward Ms Ballantine and called on her to 'get [you] away, you brought him over, get [you] away' and
  • Smith v State of Queensland (Queensland Health) [2023] QIRC 296you did not leave so she turned away from you and sat down, and she was comforted by Ms Camille [sic] Bekkeli.

See pages 15-16 of the report.

  1. Ms Camille [sic] Bekkeli, a guest of a GCHHS employee, advised that:Smith v State of Queensland (Queensland Health) [2023] QIRC 296
  • she was seated at the Digital Engagement team's table when you and Ms Ballantine approached the table,
  • she observed you in a conversation with Ms Mockler which initially appeared friendly, but Ms Mockler subsequently rose from her seat and you were 'in her face'.
  • Ms Bekkeli says you were only a couple of inches from Ms Mockler, who was wedged with her back to a chair and you in front of her. She says she could see              Ms Mockler trembling and your actions towards her appeared intimidating.
  • Ms Bekkeli says whilst she did not hear the conversation, she saw Ms Mockler put her hand up in front of you which appeared to indicate she wanted you to stop.

See pages 18-19 of the report.

  1. I am concerned your reported behaviour toward Ms Mockler may have been disrespectful and discourteous, and may have caused her to feel intimidated and vulnerable when you allegedly did not leave the table, despite being asked to a number of times.
  1. [105]
    Clause 1.5 a. of the Code is set out above. The relevant part of that clause, having regard to Allegation One, is that: 'We will… treat co-workers, … with courtesy and respect'.
  1. [106]
    Sub-clauses 8.3(b)(i) and (ii) of the Directive set out the common way disciplinary allegations or disciplinary charges are formalised in disciplinary proceedings of the kind commenced against Mr Smith. That is, by:
  • setting out the legal prohibition, that is, the allegation or the 'charge'; and
  • then providing the particulars or facts of the allegation or 'charge'.[112]
  1. [107]
    Such disciplinary allegations are drawn in such a way so as to ensure that natural justice is afforded to the employee.[113]
  1. [108]
    The drafter of the first allegation (the Investigator) conflated the allegation and the particulars of the allegation. The Department, in putting Allegation One to Mr Smith, did not comply with sub-cls 8.3(b)(i) and (ii) of the Directive.
  1. [109]
    The relevant part of cl 1.5 a. of the Code refers to the requirement to treat '… co-workers, clients and members of the public with courtesy and respect'. It does not refer to the matters that are contained after the word '… when' in Allegation One.
  1. [110]
    Allegation One should have been:

On 4 December 2020, you failed to treat Ms Emma Mockler, a co-worker, with courtesy and respect contrary to cl 1.5 a. of the Code of Conduct for the Queensland Public Service.

  1. [111]
    Paragraph e) of the particulars of Allegation One, being Mr Brown's expressed concern about Mr Smith's alleged conduct, had no place in the particulars. Mr Brown's expressed concern was not an allegation of fact that went to the alleged contravention of cl 1.5 of the Code.
  1. [112]
    The Department, in conducting the show cause process for the disciplinary finding against Mr Smith, should have complied with cl 8.3 of the Directive. Agencies, in conducting a show cause process for a disciplinary finding, must comply with the equivalent provision in the current applicable directive.[114]

Allegation Two

  1. [113]
    The allegation and the particulars, as stated by Mr Brown, were:

Allegation two

On 4 December 2020 you failed to treat Camille [sic] Bekkeli, a member of the public, with courtesy and respect when you engaged her in an aggressive manner after ignoring repeated requests to move away from her and Emma Mockler.

Particulars of allegation two:

  1. Ms Camille [sic] Bekkeli, a member of the public, attended the event with her husband Roy Bekkeli, who was the manager of the Digital Engagement team at the time. Mrs Bekkeli was seated at the Digital Engagement team's table and witnessed the events described in Allegation one.
  1. Ms Bekkeli says that immediately after the verbal exchange between you and Ms Mockler she stood up and also engaged verbally with you. She says she told you 'in no uncertain terms' to go. She recalls that she told you 'you need to just go' and you responded, 'who are you?'.Smith v State of Queensland (Queensland Health) [2023] QIRC 296

See page 31 of the report.

  1. Ms Bekkeli advised that she then said, 'I'm Camille, Roy's wife' and you responded, 'but no, who are you, you know nothing'. Ms Mockler said she didn't know what you were talking about and she then said, 'Just go, just go'.
  1. Ms Bekkeli says she felt Emma Mockler's safety was being threatened.
  1. In a statement provided by Craig Woodrick, Senior Project Manager, he recalls:
    • he saw Ms Mockler at the Digital Engagement table in tears, and a heated conversation occurring between you and Ms Bekkeli, and
    • in order to diffuse the situation he introduced himself to you and suggested you move outside the function area, and the two of you subsequently left the room together.Smith v State of Queensland (Queensland Health) [2023] QIRC 296

See page 27 of the report.

  1. I am concerned that your behaviour toward Ms Bekkeli may have been disrespectful and discourteous when you allegedly failed to move away from her and Ms Mockler, despite being asked to a number of times.
  1. [114]
    The drafting of Allegation Two and of paragraph (f) of the particulars of this allegation have the same flaws as I have identified for Allegation One and in paragraph e) of the particulars of that allegation.
  1. [115]
    The allegation that Mr Smith engaged Ms Bekkeli in an aggressive manner after ignoring repeated requests to move away from her and Ms Mockler could not and should not have formed part of the allegation and should have only formed part of the particulars.
  1. [116]
    As before, Mr Brown's expressed view in paragraph f) of the particulars had no place being there.
  1. [117]
    Further, I cannot see, having regard to the specific allegation about Mr Smith's alleged conduct toward Ms Bekkeli, how the particulars in paragraphs d) and e) have any relevance to that allegation.

Allegation Three

  1. [118]
    The allegation and the particulars, as stated by Mr Brown, were:

Allegation three

On 4 December 2020 you failed to treat Emma Mockler, a co-worker, with courtesy and respect when you engaged her in an aggressive manner in the passage of the Gold Coast Convention Centre after she stepped in front of you and Camille [sic] Bekkeli.

Particulars of allegation three:

  1. Ms Mockler says that at the end of the event, when she and other members of the Digital Engagement team were leaving the function, you walked past the group going in the opposite Smith v State of Queensland (Queensland Health) [2023] QIRC 296direction and made what sounded like provocative comments.
  1. Ms Mockler says that as you walked past you put your arm out and held your hand very close to Ms Bekkeli's face, in a threatening manner.

See page 38 of the report.

  1. Ms Mockler says once you were 7 or 8 metres past the group you then turned and 'stormed' back toward the group in an aggressive manner. She says she felt it was necessary to then Smith v State of Queensland (Queensland Health) [2023] QIRC 296stand between you and Mrs Bekkeli to prevent any further incident.
  1. Ms Mockler advised that your aggressive behaviour frightened her.
  1. Ms Mockler says whilst gesturing for you to stop she told you "you need to stop, just go, just stop this rubbish ..... like just piss off'.

See page 40 of the report.

  1. Ms Bekkeli also reported that you walked past the group and raised your right hand towards her face. She says you made a 'choking action' when you were about a metre away from her, and then after the group then turned and looked at you, you 'charged' back toward the group. Ms Bekkeli says Ms Mockler stood in front of her to shield her from you and said words to you to the effect of 'you need to go, stop it, go away'.

See page 46 of the report.

  1. Holly Britton, a Clinical Applications Officer in the Digital Engagement Team was also in the group leaving the event, and witnessed the actions giving rise to Allegation Three. Ms Britton reports Ms Mockler received a phone call from someone telling her you were walking toward the group, and the group engaged in a conversation in order to not engage with you as you passed. She recalls that something was said by someone after you passed, and you then turned and 'charged' toward the group. Ms Britton says Ms Mockler then stepped in front of Ms Bekkeli, put her hands up and told you to 'walk away, leave us alone'.

See 48 of the report.

  1. I am concerned your behaviour in approaching his group of people may have been unnecessarily aggressive, and you may have failed to show Ms Mockler due courtesy and respect.
  1. [119]
    Again, the drafting of Allegation Three and of paragraph h) of the particulars of this allegation have the same flaws as I have identified for Allegation One.
  1. [120]
    The allegation that Mr Smith engaged Ms Mockler in an aggressive manner in the passage of the Centre after she stepped in front of him and Ms Bekkeli could not and should not have formed part of the allegation and should have only formed part of the particulars.
  1. [121]
    Again, Mr Brown's expressed view in paragraph h) of the particulars had no place being there.
  1. [122]
    There is a further issue. In his letter, Mr Brown relevantly stated:

Possible grounds for discipline

Having considered the information currently available to me in respect of Allegations one, two and three, I consider there may be grounds for you to be disciplined pursuant to the Public Service Act 2008.

a)  section 187(1)(g) in that you may have contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action.

Specifically, Clause 1.5 of the [sic] The Code of Conduct for the Queensland Public Service which provides as follows:

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

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

We will:

  • treat co-workers clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  • ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment.
  1. [123]
    The obligation referred to in the second dot point referred to immediately above is a reference to cl 1.5 b. of the Code. The standard of conduct contained in that paragraph of cl 1.5 of the Code was not reflected in any of the allegations made to Mr Smith in the first show cause.

The disciplinary findings of fact

  1. [124]
    In respect of Allegation One, Ms Bloch found that allegation, as put to Mr Smith in the first show cause, was substantiated[115] as she did in respect of Allegation Two,[116] and as she did in respect of Allegation Three.[117] It is from those disciplinary findings of fact that Ms Bloch then determined there were grounds to discipline Mr Smith pursuant to s 187(1)(g) of the PS Act.
  1. [125]
    Ms Bloch, therefore, in coming to the disciplinary finding decision, made her decision other than by merely considering if Mr Smith failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect as referred to in cl 1.5 a. of the Code. Ms Bloch went on to find that Ms Smith made Ms Mockler feel intimidated (Allegation One) and engaged her in an aggressive manner (Allegation Three), and that Mr Smith engaged Ms Bekkeli in an aggressive manner (Allegation Two). These additional findings go beyond the matters contained in cl 1.5 a. of the Code.  Did this have any effect on the provision of procedural fairness to Mr Smith?
  1. [126]
    The concern of procedural fairness is to avoid practical injustice.[118] The loss of an opportunity to advance a case will amount to a failure to provide procedural fairness.[119]
  1. [127]
    In Manescu v Baker Hughes Australia Pty Ltd,[120] the Full Court of the West Australian Industrial Appeal Court put the issue the following way:
  1. A power conferred by statute is to be exercised with procedural fairness to those whose interests may be adversely affected by the exercise of that power.
  1. The principles of procedural fairness require that a party be given an opportunity to present their case and be heard (the hearing rule).
  1. The requirements of procedural fairness are not fixed or immutable.  Procedural fairness is directed to avoid practical injustice, and what is necessary to avoid practical injustice will depend upon the particular circumstances.
  1. The hearing rule requires a decision-maker to provide a party to proceedings a reasonable opportunity of presenting his or her case.  A breach will give rise to practical injustice where the breach results in the denial of an opportunity to make submissions, and that denial is material to the decision made by the decision-maker.[121]
  1. [128]
    The findings of fact in each of the three allegations, that went beyond whether Mr Smith failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect, should have formed part of the particulars of each allegation. Having said that, there is no evidence that Mr Smith suffered from any practical injustice from these failings. That is, there is no evidence that Mr Smith was prevented or hindered in understanding and responding to these allegations.[122] While there was a failure to comply with the Directive in terms of the form of the allegations and particulars, in substance, there was no practical injustice suffered by Mr Smith in terms of him not being put on notice, or of not appreciating, what was being alleged against him.
  1. [129]
    In my view, the evidence is that Mr Smith appreciated it was alleged that he failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect and that the other parts of the allegations were matters that were really particulars. Mr Smith did not raise this issue in his submissions.
  1. [130]
    However, there is a more substantive difficulty with Ms Bloch's decision.
  1. [131]
    All three allegations were framed, in respect of cl 1.5 of the Code, on the basis that          Mr Smith failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect as expressly provided for in cl 1.5 a. of the Code.
  1. [132]
    In her disciplinary findings decision, set out in her letter to Mr Smith dated 26 July 2021, Ms Bloch relevantly stated:

Grounds for discipline

Having considered the information available to me in respect of the allegations, including your response, I consider there are grounds to discipline you pursuant to the Public Service Act 2008 section:

187(1)(g) in that you contravened, without reasonable excuse a standard of conduct under the Code of Conduct for the Queensland Public Service, specifically:

Clause 1.5 of the code which provides as follows:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

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

We will:

  • Treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that Smith v State of Queensland (Queensland Health) [2023] QIRC 296others have the right to hold views which may differ from our own.
  • Ensure our private conduct maintains the integrity of the public service and our ability to perform our duties.[123]
  1. [133]
    The reference in the last dot immediately above is to cl 1.5 d. of the Code. That paragraph of cl 1.5 of the Code or, at the very least, the words contained in it, never formed part of any of the three allegations put to Mr Smith in the first show cause. Only the matter referred to in cl 1.5 a. of the Code formed part of the three allegations put to Mr Smith.
  1. [134]
    What is the effect, if any, of Ms Bloch's findings of fact? Mr Smith was never asked to respond to the allegation that he failed to ensure his private conduct maintained the integrity of the public service and his ability to perform his duties. It was not clear if Mr Calvert relied on this finding by Ms Bloch to base his decision to dismiss Mr Smith. This is because in his letter dismissing Mr Smith, he (incorrectly) stated that Ms Bloch determined that Mr Smith was guilty of misconduct within the meaning of s 187(1)(b) of the PS Act.
  1. [135]
    However, for the reasons given above, Ms Bloch found that there were grounds to discipline Mr Smith under s 187(1)(g) of the PS Act because he breached the Code in respect of cl 1.5 a. and in respect of cl 1.5 d.
  1. [136]
    I directed the parties to make further written submissions on this point.
  1. [137]
    Mr Smith submitted that:
  • s 190 of the PS Act required that the Department had to comply with the principles of natural justice in disciplining him; and
  • prior to the decision by Mr Calvert, he was given no opportunity to respond to Ms Bloch's allegation that he had contravened cl 1.5 d. of the Code and, as a consequence, he was denied natural justice and thereby suffered a practical injustice in respect of the disciplinary process.[124] 
  1. [138]
    The Department submitted that:
  • all three allegations made against Mr Smith were consistently framed as failures to treat Ms Mockler and Ms Bekkeli with courtesy and respect at the Gala, which clearly fell within the ambit of cl 1.5 a. of the Code and such allegations were so described:

–by the Investigator;

–in the first show cause; and

–in the second show cause;[125]

  • despite Ms Bloch's findings of fact, Mr Smith has suffered no practical injustice because:

–at all times, Mr Smith was apprised of the particulars of the conduct that was the basis of the decision to terminate his employment and those particulars '… were fulsome and detailed and remained consistent across the entire disciplinary process';[126]

–Mr Smith's responses to the first show cause and to the second show cause focused on the conduct the subject of the allegations, rather than any issue taken with the subclauses of cl 1.5 of the Code that were being relied upon for the purposes of s 187(1)(g) of the PS Act;[127]

–even if there had been a submission or response made by Mr Smith as to the appropriateness of reliance upon cl 1.5 d. of the Code, this would not have made any material difference to the outcome because a finding that the conduct contravened cl 1.5 a. of the Code was clearly open and capable of constituting a ground for discipline in this matter;[128] and

–Mr Calvert's evidence was that he made his decision to terminate Mr Smith's employment on the basis that Mr Smith had contravened cl 1.5 a. of the Code.[129]

  1. [139]
    I accept the Department's submissions. Not every failure to comply with a particular disciplinary process, and thereby, a determination that there has been a breach of the rules of natural justice, will mean that a person has suffered a practical injustice in respect of the adverse decision that has been made.
  1. [140]
    In the present case, despite the findings of fact made by Ms Bloch about cl 1.5 d. of the Code, the uncontested evidence before the Commission is that Mr Calvert did not rely upon that finding of fact in making his decision to terminate Mr Smith's employment. In his evidence in chief, Mr Calvert stated that:
  • when he reviewed the draft termination letter, his focus was not on what ground of liability under the PS Act was being relied on to discipline Mr Smith because '… it had already been determined by Hannah Bloch'; and
  • he understood that Mr Smith had been found by Ms Bloch, by virtue of his conduct on 4 December 2020, to have clearly failed to treat a co-worker and a member of the public with courtesy and respect and therefore, pursuant section 187(1)(g) of the PS Act, Mr Smith had contravened, without reasonable excuse, a standard of conduct under the Code and was liable to disciplinary action.[130]
  1. [141]
    It seems to me that, having regard to the material provided by the Investigator and in the first and second show causes, the reference in Ms Bloch's findings of fact that Mr Smith contravened cl 1.5 d. of the Code, whilst regrettable, was not acted upon by Mr Calvert. Indeed, in considering whether or not Mr Smith's dismissal was unfair, I will only be considering the findings of fact made by Ms Bloch that Mr Smith contravened cl 1.5 a. of the Code and that Mr Calvert's decision to dismiss Mr Smith was made on the basis that Ms Bloch found that Mr Smith contravened cl 1.5 a. of the Code.
  1. [142]
    For these reasons, despite Ms Bloch's findings of fact about cl 1.5 d. of the Code,  I do not consider Mr Smith to have suffered any practical injustice.

On the evidence, did Mr Smith engage in the conduct the subject of the three substantiated allegations?

  1. [143]
    Under this heading, and the sub-headings that follow, I am only considering whether or not Mr Smith engaged in the conduct the subject of the three substantiated allegations.
  1. [144]
    That is, under this heading, I am not determining whether, on the facts that I find,                   Mr Smith contravened, without a reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action. I will consider this latter issue under the next major heading.

The two alleged incidents at the Gala and the three substantiated allegations

  1. [145]
    There were two incidents that allegedly occurred on the evening of the Gala, that involved Mr Smith, in respect of which the allegations were made.
  1. [146]
    The first incident allegedly occurred at approximately 10:30 pm when Mr Smith was at the table where a group of people, consisting of some members of the Digital Engagement team and some of their partners ('the DET table'), were present ('the first alleged incident').
  1. [147]
    The second alleged incident occurred at the end of the Gala when some members of that same group came into the same proximity to that of Mr Smith when leaving the Gala ('the second alleged incident'). 
  1. [148]
    The first and second substantiated allegations relate to the first alleged incident. 
  1. [149]
    The third substantiated allegation relates to the second incident.

The seating arrangements at the Gala and the relevant persons in attendance

  1. [150]
    Exhibit 22 is a seating floorplan of the Centre for the Gala. The tables were in a banquet style arrangement.
  1. [151]
    Mr Smith attended the Gala with Ms Aimee Ballantine.[131] Ms Ballantine is employed in the Health Service.  Mr Smith and Ms Ballantine were seated at Table 72.
  1. [152]
    Some of the employees of the Digital Engagement Team, and some of their partners, were at Tables 145 and 146 which were some distance from Table 72.  Some employees of the Solutions Delivery Services Teams were also at these two tables. Tables 145 and 146 were closest to the entry doors and exit doors.
  1. [153]
    Seated at tables 145 and 146 were:
  • Ms Mockler, at that time an employee in the Digital Engagement Team;
  • Mr Craig Woodrick, at that time an employee in the Solutions Delivery Services Team;
  • Mr Roy Bekkeli, at that time an employee in the Digital Engagement Team; and
  • Ms Bekkeli.
  1. [154]
    Also in attendance that evening at the Gala were:
  • Ms Brook; and
  • Ms Holly Britton, (at that time, employed in the Health Service as a Clinical Applications Officer, Clinical Informatics Team).
  1. [155]
    Mr Smith, Ms Ballantine, Ms Mockler, Ms Bekkeli, Mr Bekkeli, Ms Britton and Mr Woodrick were direct witnesses, to varying degrees, of the first incident. They all gave evidence and were cross-examined.
  1. [156]
    Mr Smith, Ms Ballantine, Ms Mockler, Ms Bekkeli and Mr Bekkeli were direct witnesses, to varying degrees, of the second incident. They all gave evidence and were cross-examined.
  1. [157]
    There are material conflicts in the evidence given by some of these witnesses. These conflicts need to be resolved in determining the contested issue of whether Mr Smith engaged in the conduct in the first, second and third substantiated allegations.
  1. [158]
    I am, of course, cautious about determining the credit of these witnesses solely by my observations of them when they were giving their evidence.[132]
  1. [159]
    The rational resolution of an issue involving the credibility of witnesses requires reference to, and the analysis of, any evidence independent of the parties which is apt to cast light on the probabilities of the situation.[133]  In the circumstances of the evidence that has been given by the eye witnesses to the two incidents, it seems to me that there are better guides to determining the reliability of their evidence.
  1. [160]
    In Rush v Nationwide News Pty Ltd (No 7),[134] Wigney J stated:

309 Aside from demeanour, there are other factors or considerations which may assist a judge in determining the credibility of a witness and the reliability of his or her evidence.  Those considerations include: whether the witness has previously given an account of the events in question and, if so, whether that previous account is consistent or inconsistent with the evidence given by the witness; the plausibility and apparent logic of the events described by the witness; and the consistency of the account of the events described as compared with other objectively established events.  Such considerations often turn out to be a much surer guide to the reliability of the evidence given by a witness about disputed events.  As Atkin LJ observed in Société d’Avances Commerciales (Société Anonyme Egyptienne) v Merchants’ Marine Insurance Co (The “Palitana”) (1924) 20 Ll L Rep 140 at 152; cited in Fox v Percy at [30]:

… I think that an ounce of intrinsic merit or demerit in the evidence, that is to say, the value of the comparison of evidence with known facts, is worth pounds of demeanour.

310 This is a case where such considerations, as opposed to witness demeanour, provide the main key to the resolution of the conflicts in the evidence. 

  1. [161]
    In my view, this is also a case where such considerations, as opposed to witness demeanour, provide the main keys to the resolution of the conflicts in the evidence. 

Did Mr Smith engage in the conduct the subject of the first substantiated allegation?

Mr Smith's submissions

  1. [162]
    Mr Smith referred to Ms Bloch's evidence that his dismissal was the appropriate penalty because witnesses were intimidated and scared by his actions and '… the nature of the incident at the DET table lasted for approximately ten minutes and it was so heated that several individuals recognised the escalating aggression and attempted to intervene'.  However, Mr Smith submits that the evidence shows that:
  • a reasonable person would not have felt scared or intimidated by Mr Smith's conduct at approximately 10.41 pm when he spoke to Ms Mockler at the DET table ('the first proposition');
  • Ms Mockler's contentions that she felt scared or intimidated were not supported by the evidence ('the second proposition'); and
  • Ms Mockler's response to Mr Smith at the DET table was disproportionate and unreasonable and she was not harassed by Mr Smith ('the third proposition').[135]
  1. [163]
    As to the first proposition:
  • the interactions between Mr Smith and Ms Mockler at the DET table (according to the estimated timeline in Mr Smith's submissions),[136] lasted two to three minutes, in circumstances where Ms Mockler made several requests within 30 seconds;[137]
  • prior to Mr Smith speaking to Ms Mockler at approximately 10.41 pm, he was involved in two 'selfies' with Ms Mockler;[138]
  • Ms Mockler, although she knew Mr Smith, did not want to interact with him and pretended not to know him when he introduced himself;[139] and
  • Mr Woodrick's evidence that Ms Mockler had spoken to him about the difficulties between Mr Smith and Ms Smith, contradicts Ms Mockler's evidence in cross-examination that she did not know anything about their marriage.[140]
  1. [164]
    As to the second proposition, it was submitted on behalf of Mr Smith[141] that Ms Mockler's evidence contradicted what she said during the external investigation. The submission referred to Ms Mockler's evidence in chief, that when she met Mr Smith outside the function room, Mr Smith was smirking at her throughout that interaction which made her uncomfortable.[142] The submission was that this evidence was inconsistent with what she told the Investigator in that she did not say to him that Mr Smith smirked at her and made her feel uncomfortable during that interaction.[143]
  1. [165]
    It was also submitted on behalf of Mr Smith that:
  • at no time did Ms Mockler indicate to Mr Smith that she felt uncomfortable, intimidated or harassed when she posed in the selfies with Mr Smith and Ms Ballantine;
  • despite Ms Mockler's evidence that she was not comfortable with Mr Smith being there, in relation to the photographs being taken, the photographs are both probative and cogent evidence that Ms Mockler's evidence, that she was uncomfortable with Mr Smith prior to and during the period when the photographs were taken, is implausible;
  • the photographs are evidence that Mr Smith would have no reasonable cause to apprehend that Ms Mockler was uncomfortable with his conduct prior to and during the period when the photographs were taken; and
  • Mr Smith denies inserting himself into the background when the photographs were being taken, and it was never put to Ms Ballantine that Mr Smith's participation in the photographs was unwelcome, such that Mr Smith's evidence, the evidence of Ms Ballantine and the photographs themselves support Mr Smith's case that he was not an unwelcome participant and Ms Mockler willingly participated in the photographs with Mr Smith being present.[144]
  1. [166]
    Finally, in relation to the second proposition, it was submitted that:
  • in the absence of any knowledge of Ms Mockler's personal opinion of him,              Mr Smith had no reason to apprehend that interacting with Ms Mockler would result in a confrontation – which, according to his evidence, occurred after he thanked Ms Mockler for understanding that there were two sides to the story –  namely, Ms Mockler standing up and saying: 'Fuck off or I'll punch you in the face.';[145]
  • the evidence was that Mr Smith accompanied Ms Ballantine to the DET table, such that Mr Smith did not seek out those persons;[146] and
  • Ms Ballantine did not concede that she was wrong in her evidence that Ms Mockler stated she would punch Mr Smith in the head, and Ms Ballantine further stated that Mr Smith did not act in an intimidating manner to Ms Mockler.[147]
  1. [167]
    As to the third proposition, it was submitted on behalf of Mr Smith that:
  • him being 30 cm from Ms Mockler's face, in a loud environment, cannot be characterised as being uncomfortably close to her, or very forceful or intimidating;
  • Ms Mockler confirmed that she did not ask Mr Smith to move away from her prior to her having an 'adrenaline rush' and prior to her standing up;
  • Ms Mockler stated to the Investigator that she '… felt sort of intimidated' and that Mr Smith had '… really ruffled my feathers and upset me', but did not state that she felt harassed or intimidated;
  • if Ms Mockler legitimately felt aggrieved by Mr Smith's conduct, she was not trapped and could have walked away;
  • on Ms Mockler's own evidence (namely Mr Smith saying: 'I know you know who I am' and 'You think you know the whole story, you know nothing'), Mr Smith did not harass her within the meaning of the Department's Workplace Harassment Human Resources Policy because:

–no reasonable person would consider the conduct of Mr Smith to be offensive, humiliating, intimidating or threatening; and

–there is no evidence Mr Smith swore at her or engaged in or threatened physical violence towards her.[148]

The Department's submissions

  1. [168]
    The Department submits that:
  • the evidence of Ms Mockler and Ms Britton should be accepted over that of Mr Smith and Ms Ballantine;[149]
  • the culmination of the evidence of all the witnesses at the table was that Mr Smith initiated and engaged in a heated conversation with Ms Mockler, which caused her to become visibly upset as seen by others at the DET table;[150]
  • during the interaction, Ms Mockler stood up, told Mr Smith repeatedly to leave her alone and go away, and she asked Ms Ballantine to get Mr Smith away from her;[151]
  • in the disciplinary process, Mr Smith did not dispute that he was asked to leave the table repeatedly, yet he remained in Ms Mockler's personal space and kept talking to her and he claimed this was because he was confused about why Ms Mockler could not recall meeting him on one other social occasion;[152]
  • Mr Smith acknowledged that he had a part to play in the events, but claimed that the incident resulted from misunderstandings and a lack of communication, and his excuse for his behaviour was that had he known that his ex-wife had implemented a safety plan and that her co-workers knew about it, the incident may have been avoidable;[153]
  • it is difficult to see why Mr Smith's presence at the table that night, and his apparent statements to Ms Mockler that they knew each other from a previous occasion, would prompt a confrontation; however, even if Ms Mockler knew about Mr Smith's marriage breakdown with Ms Smith, and the implementation of a safety plan, the evidence of Ms Mockler was that she did not know anything specific about the conduct of Mr Smith or the reasons for the breakdown of the marriage, simply that she knew of the separation and that a safety plan was in place at the workplace for Ms Smith;[154]
  • what is more likely is that when Ms Mockler pretended to not know Mr Smith earlier in the evening, as she candidly admitted in her evidence, this agitated Mr Smith and prompted him to initiate the conversation with her (at the DET table) and say words to the effect of: 'I know you know who I am';[155] and
  • Mr Smith had no reason to attend that table that night, did not need to interact with those present, he offered no reason, legitimate or otherwise, for being there and the incident could have been entirely avoided had Mr Smith chosen not to engage directly with Ms Mockler at the table at all, which was reasonably open to him, just as it was open to him to step back and away from Ms Mockler, and remove himself from the situation, each time she asked him to do so.[156]
  1. [169]
    The Department further submitted that:
  • the conversation with Ms Mockler about previously meeting her at a child's birthday party occurred earlier in the evening around 9.30pm in a separate interaction and not when Mr Smith was at the DET table;[157]
  • it does not make sense for Mr Smith to have had two nearly identical conversations with Ms Mockler;[158]
  • Mr Smith introduced evidence in re-examination at the hearing that when he was speaking to Ms Mockler at the table, he said words to the effect of                  '… Thanks for understanding there are always two sides to the story' prior to Ms Mockler telling him to 'Fuck off' and 'I'll punch you in the face';[159]
  • Ms Mockler denies telling Mr Smith to 'fuck off' and denies stating that she would punch him in the face, and the only person who corroborates Mr Smith's version on that point is Ms Ballantine;[160]
  • in Ms Ballantine's interview with the Investigator on 19 February 2021, which occurred only two months after the Gala, she relevantly stated:

–she did not know exactly where it happened and how it escalated, and she did not recall much (even with the assistance of her notes);

–she did not recall whether she was talking to Ms Mockler or somebody else '.. because there was a few of us standing around at that point and that's where I'm honestly I'm a little bit blurred with that'; and

–when asked if she saw Mr Smith at all when he was conversing with Ms Mockler just before the comment, Ms Ballantine stated: 'No. Not that I remember. Again, it's very... blurred.';[161] and

  • the Commission should be satisfied that Ms Ballantine's evidence is confused and Ms Ballantine is not clear about her recollection of incidents that happened that night, in that she merges the interactions together and recalls events that do not appear to have happened, particularly when no other witness gives evidence of those matters;[162]
  • conversely, Ms Britton did not hear Ms Mockler say to Mr Smith 'Fuck off' and 'I'll punch you in the face' when she, the person closest to Ms Mockler at the time, would have most likely heard such comments if they were spoken;[163] and
  • it is more likely that it was Mr Smith who was spoiling for a fight, and not Ms Mockler, due to Ms Mockler's evidence of her conversation with Ms  Ballantine after the interaction the subject of Allegations One and Two, in which Ms Ballantine described Mr Smith's state, saying words to the effect of, '… Paul is so angry', and '… Kathleen is to blame for his anger' and '… you don 't know what Kathleen has done to him'.[164]
  1. [170]
    In reply, Mr Smith submitted that I should not accept the Department's submission that Mr Smith sought to engage with Ms Mockler for the reason that he was agitated about their earlier interaction because, inconsistently with the rule in Browne v Dunn,[165] it was never put to Mr Smith that he was so agitated.[166]

Mr Smith did engage in the conduct the subject of the first substantiated allegation.

  1. [171]
    This allegation, and its particulars, are set out in paragraph [104] of these reasons. In my view, Mr Smith did engage in the conduct the subject of the first substantiated allegation. There are six reasons for this.
  1. The timing of Mr Smith's conversation about when he first met Ms Mockler
  1. [172]
    Ms Mockler's evidence was that the first conversation she had with Mr Smith that evening, in Ms Ballantine's presence, was about one hour before the incident at the DET table. This was when Ms Mockler was with a Ms Stephanie Power and that during this conversation, after Mr Smith said he knew Ms Mockler (to which she gave him a puzzled look) and after he said he was Ms Smith's ex-husband, she (Ms Mockler) then said that she had met him before '… at Brooke's daughter's first birthday' ('the earlier conversation').[167]
  1. [173]
    Ms Mockler's evidence to the Investigator given on 15 February 2021, about the earlier conversation, was consistent with her evidence to the Commission.[168]
  1. [174]
    Mr Smith's evidence in chief was:
  • he amicably participated in the taking of a group photo which included Ms Mockler and Ms Ballantine;
  • later in the night, he was accompanied by Ms Ballantine to a table where Ms Mockler and Mr and Ms Bekkeli were seated; and
  • when he accompanied Ms Ballantine to the DET table, and in an effort to create conversation, he asked Ms Mockler if she remembered him, as he had previously met Ms Mockler when he was married to Ms Smith, and during this conversation he reminded Ms Mockler how they met each other previously at a baby shower.[169]
  1. [175]
    In his interview with the Investigator, when he was asked about the earlier conversation, Mr Smith stated it was inaccurate and that he did not recall '… that ever happening'.[170] In cross-examination, Mr Smith accepted it was possible that the earlier conversation occurred to the extent that Ms Mockler said they had previously met at a birthday party following which they all went their separate ways.[171]
  1. [176]
    Ms Ballantine's evidence in chief was that the first time she was in a conversation with Mr Smith and Ms Mockler that evening was when, at the DET table, Ms Ballantine asked Ms Mockler if she knew Mr Smith, to which Ms Mockler responded by saying that she did not know Mr Smith. Ms Ballantine's evidence was that Ms Bekkeli was also involved in that conversation. According to Ms Ballantine, this interaction took place after she took the photographs of her and Ms Mockler, two of which included Mr Smith, at the DET table.[172]
  1. [177]
    Ms Ballantine was interviewed by the Investigator on 19 February 2021, just over two months from the Gala. Initially, Ms Ballantine's evidence to the Investigator was consistent with her evidence in chief.[173]  When the Investigator put to Ms Ballantine the earlier conversation (that Mr Smith and Ms Mockler, earlier in the evening, had a conversation about him knowing her) Ms Ballantine's evidence was that she '… did not know if this was the same conversation'[174] and that while she did not deny that earlier conversation happened, she did not recall it.[175] In cross-examination, when the substance of the earlier conversation was put to her, Ms Ballantine said she did not recall the conversation.[176]
  1. [178]
    Ms Bekkeli gave no evidence to the Investigator,[177] or to the Commission,[178] that when she was at the DET table, she was involved in a conversation with Ms Mockler,                    Ms Ballantine and Mr Smith about Ms Ballantine introducing Mr Smith to Ms Mockler.
  1. [179]
    On this issue, I prefer the evidence of Ms Mockler. This is because:
  • Ms Mockler's evidence is consistent with her earlier statement to the Investigator;
  • Ms Ballantine's evidence is equivocal and I accept the Department's submission that Ms Ballantine may well be confused whether the earlier conversation involving her, Mr Smith and Ms Mockler happened at the time of the incident at the DET table or earlier;
  • Mr Smith's evidence about whether the earlier conversation happened is equivocal; and
  • Ms Bekkeli gives no evidence consistent with that of Ms Ballantine.
  1. Mr Smith's evidence about saying to Ms Mockler: 'Thanks for understanding there are always two sides to the story'
  1. [180]
    In Mr Smith's re-examination, he was asked what he said to Ms Mockler following his denial, in cross-examination, that he said: 'I know you know who I am. And you think you know the whole story. You know nothing.'
  1. [181]
    Mr Smith's evidence in re-examination was:

I thanked Ms Mockler, by using words to the effect of, “Thanks for understanding there are always two sides to the story.” I said that as a measure of gratitude, given the fact that I had known Ms Mockler before and I had not been ignored or shunned by previous mutual colleagues. That’s what I said to Ms Mockler.

All right. And what was Ms Mockler’s response to that?---Ms Mockler stood up directly, right into my face, and then said, “Fuck off or I’ll punch you in the face.”[179]   

  1. [182]
    I have a difficulty with Mr Smith's evidence that he said: 'Thanks for understanding there are always two sides to the story' to Ms Mockler ('the thanks for understanding statement').
  1. [183]
    As submitted by the Department, Mr Smith gave no evidence in chief that he made the thanks for understanding statement to Ms Mockler.[180] However, Mr Smith opened his case by stating that he had said that phrase, and that Ms Mockler's response was that as he had stated in his evidence in re-examination.[181] Further, Mr Smith, in his interview with the Investigator, stated:

I said very limited words to Emma Mockler as in my sworn affidavit to the Queensland Police Force we, there was a general discussion. She was quiteSmith v State of Queensland (Queensland Health) [2023] QIRC 296 jovial and happy. We took a photo. I believe that photo would be on Amy's phone, it wasn't on my phone. She took a photo of all three of us. And you know she hadn't shunned or despised me, which I have been the subject of many I guess forms of harassment or mobbing in the workplace to date. I knew these colleagues were Digital Engagement. I had not [sic] reason not to walk with my colleague up to this table to say hello to these people that I had previously had drinks with, family functions, attended friends places and so forth. After the photo I made words to the effect of thank you for your understanding, there are always two sides to the story. That was simply, and then after that comment Emma then told me, she jumped up into my face, verbally abused me and threatened me with assault and she told me fuck off or I'll punch you in the face. This is the very first start of the verbal abuse and attack that I encountered on that night. I am the victim here.[182]

  1. [184]
    However, in my view, it lacks plausibility that:
  • Mr Smith would unilaterally make the thanks for understanding statement without him or Ms Mockler first making any statement or comment about his separation from Ms Smith; and,
  • Ms Mockler would act, according to Mr Smith, in such a physical and abusive way to Mr Smith by him simply stating words to the effect of: 'Thanks for understanding there are always two sides to the story.'
  1. [185]
    Even if I accepted Mr Smith's evidence that, at the DET table at about 10.30 pm, he had stated to Ms Mockler that they had met previously '… at Brook's baby shower', it does not make any reasonable sense that Mr Smith would then make the thanks for understanding statement. There is, in my view, no logical connection between the two statements made by Mr Smith.
  1. [186]
    In coming to this conclusion, I also note that Ms Ballantine, in her evidence in chief, stated that Mr Smith made the thanks for understanding statement at the DET table after                  Ms Mockler had said she did not know Mr Smith, which was after she (Ms Ballantine) had introduced him to Ms Mockler.[183] Ms Ballantine told the Investigator that Mr Smith made the thanks for understanding statement at the same time, on the evening of the Gala, as she stated in her evidence in chief.[184]
  1. [187]
    However, in cross-examination, Ms Ballantine did not refer to Mr Smith making the thanks for understanding statement. Ms Ballantine's further evidence in cross-examination was that, at the point in time after she introduced Mr Smith to Ms Mockler, and Ms Mockler said she did not know Mr Smith, to which Mr Smith mentioned that they had met before, she (Ms Ballantine) did not hear what transpired between Mr Smith and Ms Mockler.[185]
  1. [188]
    Further, for the reasons I have given earlier, my view is that Ms Ballantine is confused about when the material conversations occurred.
  1. [189]
    For the reasons I have given, I do not accept that Mr Smith made the thanks for understanding statement at the time immediately before he says he was the subject of verbal abuse and a threat by Ms Mockler.
  1. Ms Mockler did not want to engage with Mr Smith at the Gala
  1. [190]
    Ms Mockler's evidence in chief is that during the earlier conversation, after Mr Smith said that he knew her and that she recalled meeting him once before, she decided she did not wish to engage with Mr Smith because she knew that his marriage to Ms Smith had broken down, that Ms Smith had a safety plan in place and she did not want to become involved in those matters. It is for that reason why she said she did not initially respond to Mr Smith, after he said that he knew her, and gave him a puzzled look.[186]
  1. [191]
    When Mr Smith then said that they had met before and he mentioned his surname, Ms Mockler's evidence was that she maintained her puzzled expression and did not respond to Mr Smith.[187] It was at that point that Mr Smith identified himself as                          Ms Smith's ex-husband, and then Ms Mockler stated that she had met him before '… at Brooke's daughter's first birthday'.[188]
  1. [192]
    Ms Mockler's evidence in chief, about this issue, was generally consistent with the  statement she wrote on 15 December 2020 about the evening of the Gala[189] and with the evidence she gave to the Investigator during the interview on 15 February 2021.[190]                          Ms Mockler's evidence in cross examination was that she chose to pretend that she did not know Mr Smith because she did not want to have a conversation with him.[191]
  1. [193]
    Again, as referred to earlier, Mr Smith's evidence in cross-examination, when the earlier conversation was put to him, was that, in general, he did not recall the conversation. Mr Smith also stated that it was possible there was '… just general discussion'.[192] Further, for the reasons given earlier, my view is that Ms Ballantine is confused about when the words, the subject of the first conversation, took place.
  1. [194]
    Having regard to the above evidence, I find that in the earlier conversation,  Ms Mockler, in her interaction with Mr Smith, deliberately feigned confusion as to whether she knew Mr Smith.
  1. It is more plausible that Mr Smith further engaged with Ms Mockler, after about 10.30 pm, because of the earlier conversation
  1. [195]
    Ms Mockler's evidence in chief was that:
  • after Ms Ballantine took the photographs, she (Ms Mockler) stood up and moved a few metres away and turned back towards Ms Britton to continue a prior conversation they were having, when she noticed Mr Smith crouching next to her and that he said to her words to the effect of: 'I know you know who I am';
  • she turned towards Mr Smith and gave him a puzzled look, but did not say anything;
  • Mr Smith continued to speak to her and said to her words to the effect of: 'You think you know the whole story, you know nothing.';
  • Mr Smith's tone of voice was unsettling, made her feel uncomfortable and he was smirking at her throughout this interaction;
  • Mr Smith nodded at her and stood back up, although he remained standing very close to her and continued to look down at her;
  • she stood up and turned towards Mr Smith, who was very close to her, and said words to the effect of: 'I don't know you, and I don't want to know you. Go away'  and she repeated to Mr Smith words to the effect of: 'Go away' or 'Leave me alone' three times;
  • Mr Smith did not move away, continued to smirk at her and each time she told him to go away, he said words to the effect of 'You don't know the whole story' or 'You don't know the truth' and his tone of voice did not change as he responded to her; and
  • she was becoming increasingly frustrated by Mr Smith's refusal to move away from her, and her voice became louder each time she repeated herself.[193]
  1. [196]
    In cross-examination, Mr Smith denied that he sought out those at the DET table because they were friends with his ex-wife.[194] Ms Ballantine's evidence is that it was she who stopped at the DET table (on her and Mr Smith's way to the toilets) when he spoke to Ms Mockler.[195] I accept this evidence. It is consistent with Ms Mockler's evidence that Ms Ballantine approached her at that time.[196] Ms Mockler and Ms Ballantine were friends.[197] It makes reasonable sense she (Ms Ballantine) would stop to talk to Ms Mockler. That then gave Mr Smith a further opportunity to speak to Ms Mockler, an opportunity which he took.
  1. [197]
    However, in terms of the interaction between Mr Smith and Ms Mockler at the DET table, my view is that the more plausible explanation for their interaction was that Mr Smith wanted to make the point with Ms Mockler that he knew, that she knew, who he was. This arose from the earlier conversation and Ms Mockler's feigned confusion about whether or not she knew Mr Smith.  In my view, this makes perfect sense when regard is had to what Ms Mockler states were the words said to her by Mr Smith.
  1. [198]
    Indeed, it makes further sense that Mr Smith said words to the effect of: 'You do not know the whole story' when regard is had to the email he sent to Mr Potts on                                         30 November 2020, just a few days before the Gala.  In that email, regarding the fraud allegation he made against Ms Smith (referred to in paragraph [52] of these reasons), Mr Smith complained that Ms Smith was dishonest, and deceitful in that she was '… speaking untruths to her manager and colleagues'.[198]
  1. [199]
    Further, in his interview with the Investigator, Mr Smith said Ms Smith:

[H]as spread lies, untruths and misled people in the workplace. And that is a clear direct result from her discussing a domestic violence situation, okay, that is currently before the courts, with all of her friends.[199]

  1. [200]
    Mr Smith, when challenged by the Investigator about how he knew this, stated:

Why would I, why else would I be the subject of being shunned, being despised, having my name defamed in Queensland Health. I hear it, it's forms of harassment in the current workplace.[200]

  1. [201]
    At the time of the Gala, on 4 December 2020, Ms Mockler was a work colleague of Ms Smith.[201]
  1. [202]
    Ms Britton's evidence in chief corroborates Ms Mockler's evidence to the extent:
  • of her observations of Ms Mockler and Mr Smith during and immediately after their interaction; and
  • of what she was able to hear Ms Mockler say to Mr Smith and to Ms Ballantine.[202]
  1. [203]
    Ms Bekkeli could not hear what was being said between Mr Smith and Ms Mockler but, relevantly, observed Mr Smith talking directly into Ms Mockler's ear and that Ms Mockler was gesturing to Mr Smith with her hands that he should move away from her.[203]
  1. [204]
    Mr Bekkeli did not become involved in the first incident until after Ms Bekkeli became involved in the matter at the DET table.[204] Mr Woodrick did not go to the DET table until after Mr Bekkeli went to the DET table.[205]
  1. [205]
    In my view, the weight of evidence supports Ms Mockler's evidence to the extent of what Mr Smith said to her, his physical proximity to her when he was talking to her and that he did not immediately leave her presence when she demanded it.
  1. [206]
    As to the Browne v Dunn point taken by Mr Smith in his submissions in reply, in Marchant v Workers' Compensation Regulator,[206] I stated of the rule in Browne v Dunn:
  1. [130]
    In the often cited decision about this rule, Allied Pastoral Holdings Pty Ltd v Commissioner of Taxation, Hunt J relevantly stated:

It has in my experience always been a rule of professional practice that, unless notice has already clearly been given of the cross-examiner's intention to rely upon such matters, it is necessary to put to an opponent's witness in cross-examination the nature of the case upon which it is proposed to rely in contradiction of his evidence, particularly where that case relies upon inferences to be drawn from other evidence in the proceedings. Such a rule of practice is necessary both to give the witness the opportunity to deal with that other evidence, or the inferences to be drawn from it, and to allow the other party the opportunity to call evidence either to corroborate that explanation or to contradict the inference sought to be drawn. That rule of practice follows from what I have always believed to be rules of conduct which are essential to fair play at the trial and which are generally regarded as being established by the decision of the House of Lords in Browne v Dunn (1894) 6 R 67.

  1. [131]
    In Amcor Ltd v Barnes, Vickery J relevantly stated of the rule:

[107] The rule in Browne v Dunn was analysed by Goldberg J in White Industries (Qld) Pty Ltd v Flower & Hart (a firm).  From this and other authorities the following elements of the rule may be discerned:

  1. The rule in Browne v Dunn is a rule of fairness which requires a party or a witness to be put on notice that a statement made by the witness may be used against the party or witness or to be put on notice that an adverse inference may be drawn against the witness or an adverse comment made about the witness in order that the witness may respond to that issue and give an explanation: Browne v Dunn [1894] 6 R 67 Lord Herschell LC (at 70), Lord Halsbury (at 76-7); Bulstrode v Trimble [1970] VR 840 at 849; Karidis v General Motors Holdens Pty Ltd [1971] SASR 422 at 425-6; Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 at 623; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 216.
  1. The significance of the rule is that it requires notice to be given of a proposed attack on a witness or on the witness' evidence where that attack is not otherwise apparent to the witness.  The rule does not require that there be put to the witness every point upon which his or her evidence might be used against him or her or against the party who calls the witness: Browne v Dunn, Lord Herschell LC (at 70); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
  1. Where, it is manifestly clear that the party or witness has had full notice beforehand that there is an intention to impeach the credibility of the story which he is telling, such as where notice has been so distinctly and unmistakably given, and the point upon which he is impeached, and is to be impeached, is so obvious, that it is not necessary to waste time in putting questions to him upon it, the rule may be dispensed with, where no unfairness will arise: Browne v Dunn, Lord Herschell LC (at 71); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217.
  1. Notice of the relevant attack need not necessarily occur in cross-examination so long as it is otherwise clear that it will be made: Allied Pastoral Holdings Pty Ltd v FCT (1983) 44 ALR 607 per Hunt J (at 623); White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 217-218.
  1. The necessary notice may be effected in pleadings, in an opening or in the manner in which the case is conducted: Seymour v Australian Broadcasting Commission [1977] 19 NSWLR 219 at 224-5, 236; Jagelman v FCT (1995) 31 ATR 467 at 472 -3; Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1 at 15; White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169 at 218.  To this list I would add notice given through witness statements or affidavits exchanged in advance of the trial.
  1. The rule has its foundation in the fair administration of justice: Browne v Dunn, Lord Halsbury (at 76-7).[207]
  1. [207]
    While Mr Smith had notice of Ms Mockler's evidence of the earlier conversation and her feigning of her lack of knowledge of Mr Smith, there was no real notice given to him that part of the Department's case was that he was agitated by the earlier conversation, and that his agitation was the reason he approached Ms Mockler at the DET table (particularly when Mr Smith, in his evidence in cross-examination, seemed to admit that he did have an earlier conversation with Ms Mockler.[208]) However, I have not found that was the reason he was at the DET Table.
  1. [208]
    I have found that Mr Smith was at the DET table because he was following Ms Ballantine to the toilets when they walked past the DET table and Ms Ballantine stopped to talk to her friend, Ms Mockler; and that Mr Smith then used that opportunity to further engage with Ms Mockler about her knowledge of him.
  1. The photographs do not support Mr Smith's case
  1. [209]
    I am not of the view the photographs support Mr Smith's case.
  1. [210]
    On Mr Smith's own evidence, the two photographs, where he is in the background and Ms Ballantine and Ms Mockler are in the foreground, were taken before he had any verbal interaction with Ms Mockler when they were at the DET table.[209]  I accept that Ms Mockler knowingly posed in those photographs, with Mr Smith in the background,[210] and that she shows no signs of distress in the photographs.[211]
  1. [211]
    However, because they were taken before the verbal interaction between them, they cannot logically support Mr Smith's version of events.
  1. Ms Mockler's reaction
  1. [212]
    Mr Smith's evidence in chief was that after he asked Ms Mockler if she remembered him, and then reminded her how they met each other previously at a baby shower, Ms Mockler, in response, stood up from the table and made statements to the effect of:
  • 'Fuck off'; and
  • 'I'll punch you in the face'.[212]
  1. [213]
    Ms Ballantine's evidence in chief was that, after she introduced Mr Smith to Ms Mockler at the DET table, and Mr Smith and Ms Mockler engaged in a discussion, she                            (Ms Ballantine) stood up and started talking to Mr Hinde (who was standing next to the table), she then looked to her side to see and hear Ms Mockler raise her voice, turn to her (Ms Ballantine) and say words to the effect of: 'Get him away from me or I'll punch him in the fucking head.'[213]
  1. [214]
    Ms Mockler's evidence was that:
  • she was becoming increasingly frustrated by Mr Smith's refusal to move away from her, and her voice became louder each time she repeated herself;
  • she did '… not recall swearing at Mr Smith';
  • she did not:

–say to Mr Smith 'Fuck off or I’ll punch you in the face' or words to that effect; or

–make any threat of violence against Mr Smith; and

  • after the third time she repeated herself to Mr Smith and he did not move away from her, she turned to look towards Ms Ballantine, called over to Ms Ballantine in words to the effect of: 'You need to get him away from me' at which point she then sat down, felt overwhelmed and started to cry.[214]
  1. [215]
    Ms Britton's evidence was that after she heard Ms Mockler repeat '… several times in a raised voice words to the effect of "Get away from me" and "Please get away from me"' and after Mr Smith did not move away, she heard Ms Mockler shout out to Ms Ballantine '… words to the effect of "Aimee, you need to get him away from me"'.[215]
  1. [216]
    Ms Bekkeli, whose evidence was that she observed the interaction between Mr Smith and Ms Mockler at the DET table, gave no evidence before the Commission[216] or to the Investigator[217] of Ms Mockler saying anything audible to Ms Ballantine.
  1. [217]
    Both Mr Smith[218] and Ms Ballantine[219] told the Investigator that Ms Mockler made the statements they attributed to her in their evidence to the Commission. Ms Britton told the Investigator that Ms Mockler '… called out, she's like Aimee you need to get him away from me, get him away from me'.[220]  
  1. [218]
    I was not convinced of Mr Smith's version of events by his evidence in cross-examination. While he said that Ms Mockler told him to '… fuck off', when I asked         Mr Smith to repeat an answer he gave in cross-examination – when it was put to him that he said to Ms Mockler that she did not know the whole story and she did not know the truth – he did not repeat his answer but, in a self-serving way,  said that Ms Mockler told him to '… fuck off or she would punch me in the face'.[221]
  1. [219]
    Ms Ballantine denied that she was wrong about her evidence on this discrete point.[222]
  1. [220]
    Ms Mockler's evidence in cross-examination was that she did not say to Mr Smith, words to the effect of: 'Fuck off otherwise I will punch you in the fucking face'[223] or 'Fuck off and I'll punch you in the face.'[224]
  1. [221]
    Ms Britton's evidence in cross-examination on this point was:

So if Ms Mockler had in fact said, “Fuck off” to Mr Smith, would you have been able to hear that?---If her voice was raised, I would say yes, because I heard her other statement of saying, “Get away from me”, or - - -

Right?--- - - - “You need to get him away from me”. 

Right?---So I feel if that was said, I would have heard that.

Okay?---But I don’t recall if she did or didn’t.

All right. And she also said, “I’ll punch you in the face”, didn’t she?---I did not hear that. No.

Okay. And was that – do you think that you didn’t hear that because the music was too loud, or - - -?---No, because I don’t believe that she said that. I just heard her saying, “Get away from me. You need to get him away from me”.[225]

  1. [222]
    The weight of evidence is against the allegation that that Ms Mockler swore and made a threat of violence directly to Mr Smith. No one in their immediate vicinity heard Ms Mockler make such a statement and threat directly to Mr Smith.  On her own admission, Ms Mockler's voice was raised at about that point in her interaction with Mr Smith.
  1. [223]
    Ms Ballantine says that Ms Mockler said to her (Ms Ballantine) words to the effect of: 'Get him away from me or I'll punch him in the fucking head.'[226] No one else in the immediate vicinity gave evidence that they heard Ms Mockler make such a statement to Ms Ballantine. However, I cannot make a finding about this evidence. While Mr Smith's version of events was put to Ms Mockler and Ms Britton, Ms Ballantine's was not.
  1. [224]
    Mr Smith also submitted that Ms Mockler stated that she felt intimidated and harassed by Mr Smith because that is what Ms Brook told her to say in Ms Brook's text message to Ms Mockler on  5 December 2020, in circumstances where, before that text was sent, Ms Mockler did not state she had felt harassed or intimidated by Mr Smith.[227] That text message, sent the next day on Saturday, 5 December 2020 at 8.53 am, is annexed to           Ms Brook's affidavit.[228] Ms Brook, quite reasonably, took prompt steps to marshal a statement from Ms Mockler about the events from the night before.[229] However, the questions asked of Ms Mockler were reasonably open ended questions. They were not telling or directing Ms Mockler what to say.
  1. [225]
    Ms Brook gave evidence about what she said Ms Mockler told her, in a telephone conversation on 5 December 2020, about how she felt from her interaction with Mr Smith from the Gala. Ms Brook said that Ms Mockler told her '… it was harassment' and that Mr Smith's '… behaviour was very intimidating'. However, Ms Brook did not make a contemporaneous note about that conversation.[230] Indeed, Ms Brook, in her statement about the events of that night made on 7 December 2020, which referred to her communication with Ms Mockler on 5 December 2020, made no mention of Ms Mockler feeling that she was harassed or intimidated by Mr Smith. Ms Brook's evidence in cross-examination about why she did not include those matters in her statement dated 7 December 2020 – because she simply did not record them – was not convincing.[231]
  1. [226]
    On 6 December 2020, Ms Mockler texted Ms Brook and referred to her concern about running into Mr Smith at work in that:

If he was comfortable forcing a conversation about his personal life with me at a work function, while I was surrounded by many close colleagues, what's to stop him from doing it at the hospital?[232]

  1. [227]
    Ms Mockler did, in the statement she made on 15 January 2021, state that she felt threatened, intimidated and confused after Mr Smith said to her words to the effect that she did not know the whole story and she knew nothing.[233] However, Ms Mockler's later evidence to the Investigator was equivocal about this issue. Ms Mockler stated that she '… felt sort of intimidated'[234] and that Mr Smith had '… ruffled her feathers and upset' her.[235] Ms Mockler did not give any evidence in chief that she was intimidated by Mr Smith's conduct towards her. Ms Mockler's evidence was that because of Mr Smith's tone of voice and proximity, she felt he was trying to intimidate her[236] not that he had succeeded.
  1. [228]
    Understandably, Ms Mockler felt uncomfortable by Mr Smith's words to her. When Mr Smith did not leave her presence, after she told him to go away, this upset her and she began to cry, having regard to her own evidence[237] and to Ms Britton's evidence.[238] 
  1. [229]
    However, I do not find that Ms Mockler was intimidated by Mr Smith because:
  • Ms Mockler's own evidence was that her voice became louder each time she told Mr Smith to go away or to leave her alone, which is not consistent with her being made timid or being overawed by Mr Smith's conduct; and
  • Ms Mockler's direct statement to Ms Brook, in the text message sent on 6 December 2020, and her evidence to the Investigator and to the Commission, do not prove that she was intimidated by Mr Smith.

Conclusion

  1. [230]
    I find that just after about 10.30 pm at the Gala, at the DET table:
  • Mr Smith crouched down to Ms Mockler with his mouth to Ms Mockler's ear and said: 'I know you know who I am' and 'You think you know the whole story, you know nothing' and this made Ms Mockler feel uncomfortable;
  • Ms Mockler stood up and said to Mr Smith words to the effect of: 'I don't know you, and I don't want to know you. Go away'; 
  • Ms Mockler then said to Mr Smith words to the effect of: 'Go away' or 'leave me alone', and said words to that effect three times to Mr Smith; 
  • when Mr Smith did not leave her immediate presence, he said words to the effect of: 'You don’t know the whole story' or 'you don't know the truth'; and
  • Ms Mockler then told Ms Ballantine that she needed to get Mr Smith away from her and she then sat back down, felt upset and started to cry.

Did Mr Smith engage in the conduct the subject of the second substantiated allegation?

Mr Smith's submissions

  1. [231]
    It was submitted on behalf of Mr Smith that that Ms Bekkeli did not feel threatened, and her conduct towards Mr Smith was disproportionate and unwarranted.[239]
  1. [232]
    It was then submitted that:
  • the evidence of Ms Bekkeli should be given little weight in circumstances where she confirmed, during cross-examination, that she had formed a negative opinion about him, based on unsubstantiated allegations of domestic violence against              Ms Smith, and that she was cautious of him because she believed that he (Mr Smith) had alleged that Mr Bekkeli and Ms Smith had had an affair;[240]
  • Ms Bekkeli had no reason to involve herself in the interaction with Ms Mockler and him because it was Ms Mockler's evidence that she had already sat down by the time Ms Bekkeli interacted with him;[241]
  • his evidence was that Ms Bekkeli called him '… a fucking low life scumbag' and told him numerous times to '… fuck off' and Ms Ballantine's evidence and Mr Woodrick's evidence corroborates his evidence about the profanities he stated that Ms Bekkeli said to him;[242]
  • Ms Bekkeli confirmed that she did not feel physically threatened during this interaction and conceded that Mr Smith did not swear at her and stated that he (Mr Smith) was talking loudly 'I guess, hinging on aggressively';[243] 
  • Ms Bekkeli conceded that telling Mr Smith to '… fuck off' was aggressive;[244] and
  • on the evidence of Ms Ballantine and Mr Woodrick, Mr Smith's evidence, that he left willingly with Mr Woodrick, ought to be accepted.[245]

The Department's submissions

  1. [233]
    The Department submitted that:
  • Ms Bekkeli admits that she stood up and told Mr Smith to '… fuck off' once and told him to go away, and her evidence was that when she stood up, she thought Ms Mockler was still standing and she thought she needed to intervene;
  • Ms Bekkeli did not feel threatened for her own safety by Mr Smith, but Mr Smith was aggressive to the situation, which was corroborated by the evidence of Mr Woodrick and Mr Bekkeli who both came over to intervene;
  • Mr Bekkeli states that when he approached Ms Bekkeli and Mr Smith, he heard Mr Smith say words to the effect of: '… Who are you?', 'You don 't know me' and '… You don't know the whole story' which are words similar to those that Ms Mockler says Mr Smith said in his interactions with her immediately prior to this incident;
  • the crux of Mr Smith's primary evidence was that Ms Bekkeli jumped up and made statements to the effect of: '… Fuck you' and '… You're a fucking low-life scum bag';
  • Ms Ballantine gives evidence that Ms Bekkeli said words to the effect of, '...You're an – expletive – low-life scumbag', however Ms Ballantine's contemporaneous evidence given to the Investigator was extremely vague and she could not remember the specific words said, whereas, her evidence at the hearing now reflects the exact wording that Mr Smith told her that Ms Bekkeli said in his text message to her on the night of the Gala;
  • in re-examination, Mr Smith also stated for the first time that Ms Bekkeli appeared as if she was jumping or lunging towards him, as if someone was holding her back, and she was pointing with her finger, which was not in Mr Smith's interview with the Investigator, his show cause responses, or his affidavit material, and no other witness to this interaction supports Mr Smith's version of this description of Ms Bekkeli;
  • Mr Woodrick recalls words to the effect of '… low-life scum'  being said, but was uncertain as to who said them and stated that both parties were speaking in an aggressive tone; and
  • whilst it was accepted that the conduct of Ms Bekkeli did not help the situation, the allegation is that Mr Smith:

[A]s a manager employed by the Respondent, was expected to uphold a standard of conduct at a work event like the Golden Gala, where he was required to walk away from the situation. Instead, he sought to engage with Ms Bekkeli in an aggressive manner and refused to leave, even when asked repeatedly to do so.[246]

Mr Smith did engage in the conduct the subject of the second substantiated allegation

  1. [234]
    This allegation and its particulars are set out in paragraph [113] of these reasons.
  1. [235]
    The allegation was that, at the Gala, Mr Smith failed to treat Ms Bekkeli, a member of the public, with courtesy and respect when he engaged her in an aggressive manner after ignoring repeated requests to move away from her and Emma Mockler.
  1. [236]
    The material particulars, in so far as it was alleged that Mr Smith failed to treat Ms Bekkeli with courtesy and respect, were that;
  • immediately after the verbal exchange between Mr Smith and Ms Mockler, Ms Bekkeli stood up and also engaged verbally with Mr Smith and told him 'in no uncertain terms' to go and told Mr Smith that 'you need to just go' and he responded, 'who are you?'; and
  • Smith v State of Queensland (Queensland Health) [2023] QIRC 296Ms Bekkeli said: 'I'm Camille, Roy's wife' and Mr Smith responded by stating 'but no, who are you, you know nothing.'
  1. [237]
    Ms Bekkeli's evidence to the Investigator, following her observation of Mr Smith's interaction with Ms Mockler, was that:
  • she stood up and told Mr Smith '… under no uncertain terms' that he needed to go and then he '… came at' her, he stepped back, and at that point she said, '… you need to just go and a few other colourful words, I will be honest';
  • he came back at her, he did not launch at her '… but it was, he was quick to come back at' her and he said, 'who are you?';
  • she did not feel threatened for her safety, '… but it was an aggressive, he was aggressive towards the situation. So I felt that he was aggressive, but I didn't feel physic-, like my safety was … you know'; and
  • she identified herself and he said that she knew nothing.[247]
  1. [238]
    In her evidence to the Commission, Ms Bekkeli stated that:

20 I stood up and said to Paul words to the effect of 'you need to go', and 'leave her alone'. I felt these words were necessary because of Paul's aggressive and intimidating manner and the effect his behaviour was having on Emma.

21 Paul then stepped towards me very quickly and in an aggressive manner while saying, in a loud voice, 'who are you?'. I replied with words to the effect of 'I'm Cameal, Roy's wife'.

22 As this occurred, it was the first time I was able to see Emma's face and I noticed that she was crying.

23 Paul then said to me, in a loud manner, 'you don't know anything'. Paul repeated this to me several times.

24 I repeatedly said to Paul 'just go away' and 'fuck off'.

25 During the conversation I did not say 'fuck you'. I also did not say 'I'll  punch you in the face', or 'you're a fucking low life scum bag', or any words to the effect of those expressions.[248]

  1. [239]
    Ms Bekkeli's evidence was that about 10 seconds later, her husband, Mr Bekkeli, came over to the DET table.[249]
  2. [240]
    Mr Smith's evidence was that after Ms Mockler stood up from the table, swore at him and threatened him with violence, Ms Bekkeli made statements to him to the effect of:
  • 'Fuck you'; and
  • 'You're a fucking low life scumbag'.[250]
  1. [241]
    Indeed, Mr Smith made a statement by text to Ms Ballantine at 10.54 pm on the night of the Gala that Ms Bekkeli had called him a '…fuckin low life, fuckin scum bag',[251] (although it is not clear if this related to the events concerning Allegation Two or Allegation Three).
  1. [242]
    Ms Ballantine's evidence was that:
  • Mr Bekkeli came over to the DET table, and Mr Bekkeli and Mr Smith said hello to each other and shook hands; and
  • shortly, after Mr Bekkeli and Mr Smith started talking, Ms Bekkeli, in an aggressive tone, said to Mr Smith words to the effect of: 'You're a low life scum bag.'[252]
  1. [243]
    Mr Woodrick's evidence in cross-examination was that Ms Bekkeli used the phrase toward Mr Smith, '…low-life scumbag'.[253] Mr Woodrick tried to back track from his evidence in cross-examination, on this issue, in re-examination.[254] I prefer Mr Woodrick's evidence in cross-examination because he was very sure of his answer given in cross-examination, but was equivocal in re-examination.
  1. [244]
    Ms Bekkeli admitted swearing at Mr Smith, by telling him to '..fuck off'. Ms Bekkeli, on her own evidence, did not want to talk to Mr Smith, prior to their interaction that evening, because of an earlier allegation made by Mr Smith, that was brought to her attention by Mr Bekkeli, that Mr Bekkeli and Ms Smith had an affair.[255] In my view, the weight of evidence is that Ms Bekkeli called Mr Smith a '… fucking low life scum bag' after their initial interaction. Ms Bekkeli denied making that statement. I do not accept her denial.
  1. [245]
    Mr Smith's evidence in chief[256] about his interaction with Ms Bekkeli was very limited and his evidence in cross-examination about that interaction was similarly limited[257] other than in terms of her telling him to '…fuck off' and that Ms Bekkeli said he was a '…fucking low life scumbag'. Mr Smith's evidence as to which point, in his interaction with Ms Bekkeli, she made the statement that he was a '…fucking low life scumbag' was vague.[258] Ms Ballantine's evidence was that Ms Bekkeli made that statement after Mr Bekkeli arrived at the table.[259]
  1. [246]
    There is no reason to reject Ms Bekkeli's evidence that after she told Mr Smith to go, Mr Smith, in an aggressive manner, said: 'Who are you.' Ms Bekkeli's evidence is consistent with her evidence to the Investigator. Ms Ballantine said this interaction occurred before Ms Bekkeli called Mr Smith '…fucking low life scumbag'.
  1. [247]
    Further, Ms Bekkeli's evidence that Mr Smith said to her, in a loud voice, 'You don't know anything' (after she identified herself) is believable because it was along similar lines to what Ms Mockler said Mr Smith said to her (Ms Mockler) earlier at the DET table.
  1. [248]
    This is also consistent with Mr Smith's stated beliefs about what Ms Smith was saying about him in her workplace.

Conclusion

  1. [249]
    I find that after Ms Bekkeli said to Mr Smith words to the effect of 'you need to go', and 'leave her alone', Mr Smith stepped towards her very quickly and in an aggressive manner said, in a loud voice, 'who are you?' and after Ms Bekkeli identified herself, Mr Smith said in loud manner 'you don't know anything' a number of times.

Did Mr Smith engage in the conduct the subject of the third substantiated allegation?

Mr Smith's submissions

  1. [250]
    It was submitted on behalf of Mr Smith that:
  • this matter occurred in the foyer of the Centre after approximately 11.00 pm;[260]
  • despite Ms Mockler's alleged concerns about his conduct in relation to the first allegation, the evidence shows that Ms Mockler knew that she was walking towards Mr Smith by reason of a phone call she received when she was walking with Ms Britton;[261]
  • it was Ms Britton's evidence that she was with Ms Mockler at the top of the stairwell, to go to down to the carpark, when Ms Mockler moved across the foyer, about three or four metres, to stand between him and Mr and Ms Bekkeli;[262]
  • Ms Mockler's active engagement with him in relation to this allegation could have been avoided;[263]
  • Ms Mockler's contention that he made her feel intimidated and harassed are undermined by her conduct in the foyer when she could have avoided him but, instead, she purposely put herself in between him and Ms Bekkeli;[264]
  • the conduct of Ms Mockler was unnecessary in circumstances where:

–Ms Mockler was not with Mr Bekkeli and Ms Bekkeli when Mr Smith walked passed them;

–Ms Bekkeli only formed a view that Mr Smith had made a choking motion gesture towards her after Mr Smith had walked passed her;

–it was Ms Bekkeli's evidence that '… it happened so quickly that by the time we realised what he'd done, we'd – he'd walked past and we turned and were – threw our hands in the air as if to say what – what the hell' and she said words to the effect of: 'What the fuck'; and

–Mr Smith had walked 15 to 20 metres away when Mr Bekkeli angrily said to Mr Smith 'Where does this aggression come from? What 's your problem';[265]

  • it is implausible that Ms Bekkeli only realised that Mr Smith was using a choking motion after he had walked passed her, being conduct that Mr Smith denies, and during cross-examination, it was not put to Mr Smith that he had used a choking motion;[266]
  • Mr Bekkeli's contention that he felt threatened is contradicted by his intentional engagement with Mr Smith after Mr Smith was 15 to 20 metres away; and the failure of any person to seek the assistance of the security guard, specifically          Ms Bekkeli or Ms Mockler, demonstrates that Ms Mockler's intervention was purposeful and unnecessary;[267] and
  • an inference can reasonably be drawn from the conduct of Mr Bekkeli, Ms Bekkeli and Ms Mockler that it was their conduct that instigated the interaction in relation to this allegation because their failure to seek the assistance of the security guard demonstrates their desire to engage Mr Smith in further confrontation.[268]

The Department's submissions

  1. [251]
    The Department submitted that:
  • Mr Smith accepted at the hearing that:

–he walked past the group and then walked back towards them '…briskly; and

–that Ms Mockler stood in front of the group and put her hands up and he contends that at this point Ms Mockler assaulted him;[269] and

  • the crux of this allegation is that:

–Mr Smith had the opportunity to walk past the people from the DET table in the hall foyer without engaging with them further;

–Mr Smith had the opportunity to continue to walk away from the group once he had passed them, but instead chose to charge towards them and speak to them aggressively; and

–Ms Mockler was trying to stop the situation from escalating by telling Mr Smith to stop and to go away, and he once again refused and continued to engage in an aggressive manner.[270]

Mr Smith did not engage in the conduct the subject of the third substantiated allegation

  1. [252]
    This allegation and its particulars are set out in paragraph [118] of these reasons.
  1. [253]
    The allegation was that Mr Smith failed to treat Ms Mockler with courtesy and respect when Mr Smith engaged her in an aggressive manner in the passage of the Centre after she stepped in front of him and Ms Bekkeli.
  1. [254]
    The particulars of the allegation, in so far as it is alleged that Mr Smith failed to treat Ms Mockler with courtesy and respect were:
  • at the end of the event, when Ms Mockler and other members of the Digital Engagement team were leaving the function, Mr Smith walked past the group going in the opposite Smith v State of Queensland (Queensland Health) [2023] QIRC 296direction and made what sounded like provocative comments;
  • as Mr Smith walked past he put his arm out and held his hand very close to Ms Bekkeli's face, in a threatening manner;
  • once Mr Smith was seven or eight metres past the group he then turned and 'stormed' back toward the group in an aggressive manner, and Ms Mockler said she felt it was necessary to then Smith v State of Queensland (Queensland Health) [2023] QIRC 296stand between Mr Smith and Ms Bekkeli to prevent any further incident; and
  • Ms Mockler advised that Mr Smith's aggressive behaviour frightened her.
  1. [255]
    In her statement made on 15 December 2020, Ms Mockler stated:

Encounter 4:

When the Gala had ended, we were asked to vacate the function room.

A group of us, including Roy, Cameal (Roy's wife), Ali, Leena (Ali's wife) Holly and I walked out together, amongst others.

As we walked from the function room towards the Convention Centre exit, Aimee and Paul walked in the opposite direction to us, from the Convention Centre exit towards the function room.

Paul antagonistic as he walked past us [sic] the group.

Paul was several metres passed the group when he aggressively stormed back towards us, provoking Roy or Cameal.

I was frightened and concerned our safely [sic].

Paul's demeanour indicated he was going to start a physical altercation with Roy or Cameal.

I could feel another adrenaline rush.

I stood in his path to prevent him from getting to Roy and Cameal. My arm was extended, and my hand was up to indicate for him to stop.

I told him to stop and walk away several times.

After a short period of time he turned around and walked towards the function room.

The group of us left the Convention Centre.[271]

  1. [256]
    In her evidence in chief, Ms Mockler stated that:
  • she was two or three metres away from Mr and Ms Bekkeli when Mr Smith started coming back to the group and she quickly closed the distance and positioned herself between them and Mr Smith;
  • she needed to intervene to prevent a physical altercation between Mr Smith and Mr and Ms Bekkeli;
  • she faced towards Mr Smith and extended her arms straight out in front of her with her palms forward and her fingers towards the ceiling and said words to the effect of 'stop' and 'go away';
  • Mr Smith continued to look past her and speak towards Ms Bekkeli and she was frightened by Mr Smith's behaviour and concerned that she might become involved in a physical altercation between Mr Smith and Mr and Ms Bekkeli.[272]
  1. [257]
    Ms Mockler's evidence in cross-examination was that while she could have avoided Mr Smith and Ms Ballantine, she purposely put herself between Mr Smith and Ms Bekkeli because she was concerned for the welfare of her colleagues.[273]
  1. [258]
    However, Ms Mockler gave no evidence about what Ms Bekkeli said to Mr Smith at this time.[274]
  1. [259]
    Ms Bekkeli's evidence was that as Mr Smith was passing her, he raised his right hand to her neck and imitated a choking motion to which she responded by saying 'what the fuck' and then  Mr Smith '… charged towards us' until he was approximately one metre away from Ms Mockler who told him to go away.[275] In cross-examination, Ms Bekkeli denied that she called Mr Smith '… fucking low life scum'.[276]
  1. [260]
    Mr Bekkeli's evidence was that Mr Smith charged back towards their direction and that               Ms Mockler put herself in Mr Smith's way which was about four to five metres in front of him (Mr Bekkeli).[277]
  1. [261]
    Ms Britton's evidence was that she saw these events and that while Mr Smith came very close to Ms Mockler, Mr Smith appeared more focused on Ms Bekkeli rather than            Ms Mockler.[278] In cross-examination, Ms Britton said that Ms Mockler was with her, at a position at the top of the stairs, and then Ms Mockler moved from that point and stood in the path '… between Mr Smith and Mr and Mrs Bekkeli' and at that point, Ms Britton was either '… four or five metres' or '… three to four metres' away from them.[279]
  1. [262]
    Mr Smith's evidence was that as he was leaving the Gala:
  • he heard Ms Bekkeli make disparaging remarks about him, although he did not recall exactly what was said;
  • in response he made a questioning hand gesture towards Ms Bekkeli;
  • Mr Bekkeli made a statement to the effect of: 'What is your problem?';
  • Ms Bekkeli said words to the effect of: 'Fuck off';
  • he then asked the group, consisting of Ms Mockler, and Mr and Ms Bekkeli: 'What have I done to you?';
  • Ms Bekkeli then stated words to the effect of: 'Fucking low life scum'; and
  • following  those statements he walked away from the group.[280]
  1. [263]
    In his interview with the Investigator, Mr Smith denied that Ms Mockler walked back and stepped in front of him and Ms Bekkeli with her hands up in front of him and told him to 'stop' and 'just go'. Mr Smith told the Investigator that Ms Mockler had physically assaulted him.[281]
  1. [264]
    In cross-examination, Mr Smith gave the following evidence:

All right. And you – at this point, you had passed the group, heading towards the function rooms. Is that right?---Correct. 

All right. And you charged back towards the group?---No. Not at all.

Well, I’d suggest that you were walking towards them in an aggressive matter?---No. Not at all. I concede I walk briskly, but - - - 

All right. So you didn’t come back towards them at any point after you’d passed them?---No. I concede I walked past – I walked back towards them.

You did?---I did concede that I walked briskly back towards them. Yes. 

Briskly. Okay. Why were you walking briskly towards them?---Because I’d just again been verbally abused by Cameal. Like, I was told that I was a fucking low-life scumbag. I’d asked what their problem was. I was still very heavily confused at why I was subject of such awful abuse. I had no idea why. I was humiliated. I was  embarrassed. I had no idea why I was suffering this abuse from them.

So why didn’t you just leave?---I’d been abused all night by these people.

Okay?---I think it would be an ordinary response to ask somebody why they’re being abused when they hadn’t done anything wrong towards these people.

All right. So you agree that you walked briskly back towards them and tried to engage with them about why they were behaving this way towards you. Is that what you say?---That’s correct.

Okay. All right. And do you recall that at that point, then, Ms Mockler stepped in front of you and put her hands up?---Absolutely.

All right?---Two hands on the chest and pushed me forcefully.

Well, no, no, no?---Backwards.

I suggest to you that she put her hands up with her palms up, but she didn’t touch you at all?---That’s incorrect.

All right. And she asked what you were doing - - -?---That’s incorrect.

- - - and told you to leave?---That’s incorrect. She told me to fuck off.

All right. And you said words to the effect of: 

You don’t know the whole story, and you don’t know me.

?---No. Incorrect.

You said that several times, didn’t you?---That’s incorrect.

And you were speaking in an aggressive manner, weren’t you, towards the group?---No. Not at all.

And then you walked off?---I did walk off. Correct.[282]

  1. [265]
    Ms Ballantine's evidence was that as she and Mr Smith were leaving the Gala, she saw Ms Mockler, and Mr and Ms Bekkeli, huddled to the side of the exit bickering and looking towards her and Mr Smith, and as she and Mr Smith were passing, she heard and saw Ms Bekkeli say words to the effect of 'fuck off' and 'low life scum bag'.[283]
  1. [266]
    Having regard to Mr Smith's cross examination, his evidence supports the version of events given by Ms Mockler to the extent that he was walking briskly back towards where she and Mr and Ms Bekkeli was standing; and that Ms Mockler got between him and Mr and Ms Bekkeli and that Ms Mockler then used her hands to gesture to Mr Smith that he should move away.
  1. [267]
    However, I accept Mr Smith's evidence that the motivating factor for him walking briskly back towards that group was the words said to him by Ms Bekkeli. On her own evidence, Ms Bekkeli stated that, earlier in the evening, she had sworn at Mr Smith.[284] Both Mr Smith and Ms Ballantine gave evidence that Ms Bekkeli referred to Mr Smith as a '… low life scumbag'. I have found that earlier in the evening, Ms Bekkeli used words to the same effect to Mr Smith such that there is consistency in Ms Bekkeli using that phrase towards Mr Smith in respect of this allegation, particularly where, on her own admission in cross-examination, Ms Bekkeli had a low opinion of Mr Smith's character.[285] I find that Ms Bekkeli did refer to Mr Smith as a low life scumbag at this point in the evening when he walked past them.
  1. [268]
    I further find, based upon Ms Mockler's statement made on 15 January 2020, her evidence in chief and the evidence in chief of Ms Britton, that Mr Smith's aggression – at the point leading to and then when Ms Mockler got between him and Mr and Ms Bekkeli – was directed towards Ms Bekkeli and not towards Ms Mockler.
  1. [269]
    Ms Bloch found that whilst there was evidence that one of Ms Mockler's party made a rude or derogatory comment to Mr Smith as he passed, there was no reason for Mr Smith to '… then turn back towards the group, and engage with them in an aggressive or angry manner'.[286] With respect, that was not the allegation. The allegation was that Mr Smith failed to treat Ms Mockler with courtesy and respect when he '… engaged her in an aggressive manner in the passage of' the Centre. 
  1. [270]
    On Ms Mockler's own evidence, she put herself in between Mr Smith and Mr and Ms Bekkeli and that his aggression was directed at Ms Bekkeli. Ms Britton's evidence was to the same effect. On the evidence, Mr Smith did not engage with Ms Mockler in an aggressive manner. It was Ms Mockler who put herself between Mr Smith and                            Ms Bekkeli. Indeed, Ms Mockler's evidence in chief was that after she told Mr Smith to 'stop' and 'go away' he '… made a few more comments towards Ms Bekkeli and turned and walked away'.[287]
  1. [271]
    While Ms Mockler states she was frightened by Mr Smith's conduct, Ms Mockler made her own decision to put herself between Mr Smith and Mr and Ms Bekkeli. Mr Smith's aggression at that time was directed to Ms Bekkeli. Ms Mockler gave no evidence that Mr Smith said anything aggressive directed toward her or that he physically acted aggressively toward her.

Conclusion

  1. [272]
    For these reasons, I cannot find that Mr Smith engaged in conduct the subject of the third substantiated allegation.

On the evidence, was the conduct in which Mr Smith did engage, conduct that contravened, without reasonable excuse, cl 1.5 a. of the Code in a way that was sufficiently serious to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act?

  1. [273]
    I have found that Mr Smith engaged, in part, in the conduct the subject of the first substantiated allegation, and that he engaged in the conduct the subject of the second substantiated allegation.
  1. [274]
    It does not automatically follow that this finding means Mr Smith contravened cl 1.5 a. of the Code, in that he failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect, without reasonable excuse, in a way that is sufficiently serious to warrant disciplinary action.
  1. [275]
    There needs to be a determination of whether the facts as found meet cl 1.5 a. of the Code and then s 187(1)(g) of the PS Act.
  1. [276]
    In my view, the words 'courtesy' and 'respect' in cl 1.5 of the Code should be given their ordinary meaning. They are not technical or legal terms.

Allegation One

  1. [277]
    In relation to Allegation One, for the reasons given earlier, Mr Smith spoke to Ms Mockler in the way she described.
  1. [278]
    Mr Smith had the option to not speak to Ms Mockler, but he took the opportunity to speak to her when it arose. Given the facts I have found about Allegation One, he did so in a way that was without courtesy and respect in that after he first communicated with her and she told him to go away, he did not, and rather kept making his point that she did not know the whole story about him and Ms Smith.
  1. [279]
    There was no reasonable excuse for Mr Smith's behaviour. In his response to Ms Bloch's letter to him dated 26 July 2021, inviting him to show cause why he should not be dismissed ('the second show cause')[288] Mr Smith stated:

While not stepping back from my behaviour or the impact my actions may have had on those involved, I do view the events of 4 December 2020, resulted from misunderstandings and a lack of communication. While I understand this is said with the aid of hindsight, I do feel that had I been informed of the safety plan on foot, and been made informed that other staff were aware of allegations/undertakings involving me and my former spouse, that I would not have felt it appropriate to approach the Complainants on 4 December 2020 (and would not have done so).[289]

  1. [280]
    In my assessment, I cannot accept this as a reasonable excuse. There are two reasons for this.
  1. [281]
    First, in cross-examination Mr Smith agreed that from about 5 August 2020, he knew that the Health Service taking steps to developing a safety plan for Ms Smith.[290] To say that he would not have engaged in the behaviour in which he engaged if he had known safety plan was on foot for Ms Smith was in place belies any reasonable logic.
  1. [282]
    Secondly, as referred to earlier, in his email sent to Mr Potts on 30 November 2020 about the fraud allegation, Mr Smith complained that Ms Smith was dishonest and deceitful in that she was '… speaking untruths to her manager and colleagues'.[291] Before the Gala, Mr Smith was of the view that detrimental things were being said of him to Ms Smith's colleagues.
  1. [283]
    However, for the reasons given earlier, while this interaction upset Ms Mockler, I do not find that she was intimidated by Mr Smith.
  1. [284]
    In respect of Allegation One, I find that Mr Smith's conduct meant that he contravened, without reasonable excuse, cl 1.5 a. of the Code in that he failed to treat Ms Mockler with courtesy and respect. 

Allegation Two

  1. [285]
    In relation to Allegation Two, I have found that Mr Smith failed to treat Ms Bekkeli with courtesy and respect in that he acted aggressively towards Ms Bekkeli. Mr Smith had the option to not engage with Ms Bekkeli at the point he did.
  1. [286]
    Again, the response Mr Smith gave to Ms Bloch was no reasonable excuse. This is because, before the Gala, Mr Smith knew about a safety plan being developed for Ms Smith and he was of the view that detrimental things were being said of him to Ms Smith's colleagues.
  1. [287]
    In respect of Allegation Two, I find that Mr Smith's conduct meant that he contravened, without reasonable excuse, cl 1.5 a. of the Code in that he failed to treat Ms Bekkeli with courtesy and respect. 

A disciplinary ground existed pursuant to s 187(1)(g) of the Public Service Act 2008

  1. [288]
    Mr Smith did contravene cl 1.5 a. of the Code, in respect of Ms Mockler and Ms Bekkeli, when he failed to treat them with respect and courtesy. Mr Smith had no reasonable excuse to do so.
  1. [289]
    Because his conduct upset Ms Mockler and his conduct was aggressive towards Ms Bekkeli then, for these reasons, Mr Smith's conduct in respect of Allegations One and Two were sufficiently serious to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act.

Was Mr Smith's dismissal harsh, unjust or unreasonable having regard to the matters referred to in s 320 of the Act?

Was Mr Smith notified of the reason for dismissal?

  1. [290]
    Mr Smith was notified, in writing, of the reasons for his dismissal by Mr Calvert's letter to him dated 25 October 2021,[292] despite Mr Calvert referring to the incorrect disciplinary finding ground.
  1. [291]
    Both parties accept that the reason for Mr Smith's dismissal was that he contravened cl 1.5 a. of the Code in respect of the three substantiated allegations.

Did the dismissal relate to Mr Smith's conduct?

  1. [292]
    The dismissal related to Mr Smith's conduct at the Gala. Mr Smith's impugned conduct was that he failed to treat Ms Mockler and Ms Bekkeli with courtesy and respect, contrary to cl 1.5 a. of the Code, in respect of the three substantiated allegations.

Was Mr Smith warned about the conduct?

  1. [293]
    Mr Smith was not warned about his impugned conduct before his dismissal.
  1. [294]
    For the reasons given below, given the nature of Mr Smith's conduct, even as found by Ms Bloch and as acted upon by Mr Calvert, this was a case where Mr Smith should have been first warned about his impugned conduct.

Was Mr Smith given an opportunity to respond to the claim about the conduct?

  1. [295]
    Mr Smith was given an opportunity to respond before the disciplinary finding was made by reason of the first show cause.
  1. [296]
    For the reasons I have given earlier, despite the flaws in the way the allegation and the particulars were drawn, Mr Smith suffered no practical injustice from those flaws.
  1. [297]
    Mr Smith was also given an opportunity, by reason of the second show cause, to respond before the disciplinary penalty of termination of employment was made.
  1. [298]
    Further, for the reasons I have given earlier, despite the reference in Ms Bloch's disciplinary findings decision, that Mr Smith contravened cl 1.5 a. and cl 1.5 d. of the Code, I will act on the basis that Mr Calvert made the decision to dismiss Mr Smith on the basis Mr Smith contravened cl 1.5 a. of the Code.

Any other matters the Commission considers relevant

Was dismissal a proportionate disciplinary action?

  1. [299]
    Section 188(1) of the PS Act gives examples of disciplinary action other than dismissal. The disciplinary action taken must be disciplinary action that the chief executive considers reasonable in the circumstances.
  1. [300]
    I have found that Mr Smith's conduct in respect of Allegations One and Two was sufficiently serious to warrant disciplinary action, such that Mr Smith was liable for disciplinary action pursuant to s 187(1)(g) of the PS Act.
  1. [301]
    However, even having regard to Ms Bloch's finding that all three allegations were substantiated, there is a real question in my mind as to whether his dismissal was proportionate disciplinary action.
  1. [302]
    Both parties made submissions about whether dismissal was proportionate disciplinary action having regard to the three allegations as substantiated by Ms Bloch.
  1. [303]
    In summary, Mr Smith submitted that:
  • if any or all of Allegations One, Two or Three were substantiated, his dismissal was disproportionate in the circumstances; and
  • the circumstances were that:

–at no time prior to his dismissal was he suspended on his employment;

–he undertook refresher training; and

–there was no allegation Mr Smith engaged in any inappropriate conduct between 4 December 2020 and October 2021.[293]

  1. [304]
    The Department submitted that:
  • Mr Smith, as a manager, held a position of trust and was responsible for ensuring that he always acted as an exemplary role model to other staff and in accordance with the Code and the Health Service's Core Capability Framework ('CCF');
  • Mr Smith's conduct was serious in that he engaged in aggressive and intimidatory conduct towards two females, causing one to feel harassed, which fell far below the expected standards of behaviour for a Manager;
  • the conduct occurred at a work event and was witnessed by other employees;
  • the conduct had a detrimental effect on the health and safety of other employees;
  • the conduct was in breach of the Department's values of Integrity, Respect And Compassion;
  • Mr Smith ought to have been well aware of his obligations under the Code and the CCF because he was a senior employee who had been trained in his obligations in relation to appropriate behaviour in the workplace only months prior to the incidents;
  • Mr Smith sought to minimise his conduct by attempting to blame his ex-wife for spreading falsehoods about him and by suggesting that had he known a safety plan had been developed for his ex-wife, then the incidents would have been avoidable;
  • Mr Smith failed to demonstrate any insight as to how and why the conduct was in breach of the expected standards of behaviour and the impact of his conduct on others which indicated that management action was not likely to resolve the problems presented by his behaviour; and
  • Mr Smith's claims that the investigation was affected by bias or was somehow unfair to him were without merit and demonstrated a lack of insight and a failure to take responsibility for his conduct on the night.[294]
  1. [305]
    The Department further submitted:
  • the loss of trust and confidence in Mr Smith on the part of the Department was based on conclusions which were reasonably open to Mr Calvert when the decision to dismiss him was made, in that the conduct '….was serious and involved aggression, harassment and intimidatory conduct towards two females at a work event';
  • Mr Smith's conduct on the night had the potential to damage the reputation of the Health Service, as the attendees at the Gala included members of the public, sponsors and representatives of entities with commercial arrangements with the Health Service and these matters, in combination with Mr Smith's lack of insight into his behaviour, made it entirely untenable for the Department to continue to employ him, despite any further disciplinary matters arising during the months following 4 December 2020;
  • in relation to Mr Smith not being suspended following the events of 4 December 2020:

–the evidence of Ms Bloch, Mr Brown and Mr Calvert was that suspension was not appropriate in the circumstances;

–a number of complaints had been made by Mr Smith and against him about the Gala, and it was necessary to await the findings of the external investigation before conclusions could reasonably be drawn by the Department about what had occurred and whether disciplinary action was appropriate in the circumstances;

–Ms Bloch's evidence was that the Department acted fairly by engaging the Investigator and not pre-judging the outcome; and

  • if the Department did not treat '… this kind of aggressive conduct as a serious matter, it has the potential to set a precedent that future inappropriate conduct does not warrant termination as a disciplinary outcome';
  • Mr Smith's impugned conduct represented a pattern of inappropriate behaviour which was on par with the comparator examples of inappropriate and unsafe conduct given by Mr Brown in his evidence, particularly from the perspective of Mr Smith's inability to understand the impact his behaviour had on those around him, which led to a conclusion that Mr Smith was unable to change his behaviour;
  • Mr Smith remained employed for 10 months after the Gala, '… in part due to the length of the external investigation, but also because of the associated legal challenges Mr Smith brought in the Commission regarding the disciplinary process; and
  • there were no mitigating factors that would outweigh '… the seriousness of the misconduct engaged in in these circumstances' and that the dismissal was an appropriate penalty in all the circumstances, where management action was not likely to resolve the issues posed by Mr Smith's conduct.[295]
  1. [306]
    Ms Bloch, in her letter to Mr Smith dated 26 July 2021, set out the matters Mr Calvert would consider in determining the disciplinary action to be taken, namely:

The Chief Executive has delegation to make the decision in relation to termination and will consider all your responses, including your responses to the first show cause and the second show cause in Smith v State of Queensland (Queensland Health) [2023] QIRC 296making the final determination on the disciplinary action. The Chief Executive will also give consideration to the following:

  • the seriousness of the substantiated allegations
  • your overall work record, including any previous disciplinary actions
  • any explanation given by you
  • any extenuating circumstances which may have had a bearing on your actions or the incident 
  • the degree of risk to the health and safety of staff and clients
  • the impact the substantiated allegations have on your ability to perform the duties of your position
  • the impact the substantiated allegations have on public and client confidence in Queensland Health and the GCHHS.[296]
  1. [307]
    In Nesbit v State of Queensland,[297] Davis J, President relevantly stated:
  1. [99]
    Disciplinary proceedings differ from criminal proceedings in that the aim of discipline is not to punish but to protect the public.  However, as explained by the High Court in Rich v Australian Securities and Investments Commission, those aims are achieved by the imposition of actual punishment.  Despite the difference in the nature of disciplinary and criminal proceedings, it is generally accepted that the principle of parity applies to disciplinary proceedings.
  1. [308]
    While the Department, in its submissions, referred to the comparator cases set out in Mr Brown's evidence, tellingly, it did not make any detailed submissions about why                 Mr Smith's dismissal was proportionate having regard to those comparator cases.
  1. [309]
    In my view, even accepting that Mr Smith engaged in the conduct the subject of the three substantiated allegations (which are not the facts as I have found), my assessment would be that Mr Smith's dismissal was not proportionate to the conduct in which he was found by Ms Bloch to have engaged.
  1. [310]
    There are three reasons for this.
  1. [311]
    First, prior to the disciplinary action been commenced against Mr Smith in relation to his conduct at the Gala, Mr Smith had no disciplinary record in respect of his employment in the Health Service. Ms Willcocks' letter to Mr Smith, Exhibit 3, whilst it concerned his communication style, did not involve disciplinary action being commenced against Mr Smith and did not involve disciplinary action being taken against Mr Smith.
  1. [312]
    That Mr Smith, from a disciplinary perspective, had a good work and conduct record, points to a conclusion that Mr Smith's dismissal was disproportionate, even in respect of the three breaches of the Code as substantiated by Ms Bloch, let alone the two breaches of the Code of which I have found Mr Smith engaged.
  1. [313]
    Secondly, the comparator cases referred to by Mr Brown do not assist the Department's case. Mr Brown's evidence was:

59 Four examples of other dismissals due to inappropriate and unsafe conduct are:

  1. In 2021, a registered nurse was dismissed for entering a room without required PPE to check an alarm where a patient with suspected COVID-19 was located, and for speaking rudely with the employee who raised the nurse's actions. The employee had a prior instance of disciplinary action regarding disrespectful comments made in patient records, which resulted in performance management completed in 2018.
  1. In 2019, an environmental services officer with over 30 years of service to the GCHHS was dismissed for a single instance of harassment of a sexual nature which was in contravention of the Code of Conduct The employee had showed other staff members an image on a mobile phone asserting it was a sex toy of another employee.
  1. In 2019, an operational services officer was dismissed in relation to nine allegations relating to their failure to treat seven colleagues with courtesy and respect and a pattern of disrespectful workplace behaviour over several years. The employee's conduct included laughing in a colleague's face and making spitting noises as she passed by the person, giving a colleague the finger, verbally attacking and abusing a colleague in a hallway, and manoeuvring a food trolley on a number of occasions so that it hit other staff.
  1. In 2018, a permanent, full-time environmental services officer was dismissed for behaving in an inappropriate and threatening manner by sending emails on one afternoon to a colleague.

60  If I am applying the standards and considerations set by the matters summarised above, I am satisfied GCHHS has acted consistently in determining that Mr Smith's conduct warranted dismissal in the circumstances.[298]

  1. [314]
    These comparators are not appropriate comparators. While I appreciate it may be difficult to find comparable cases, these cases are not reasonably comparable to Mr Smith's case based upon the evidence given by Mr Brown.
  1. [315]
    In relation to the first comparator, the employee had an instance of prior disciplinary action relating to the same conduct for which the employee was dismissed. Mr Smith's circumstances are not the same.
  1. [316]
    In relation to the second comparator, the impugned conduct was not the same as Mr Smith's and, objectively, was far more serious than Mr Smith's conduct.
  1. [317]
    In relation to the third comparator, the employee's impugned conduct was far more extensive and over a longer period of time compared to Mr Smith's conduct as found by Ms Bloch.
  1. [318]
    In relation to the fourth comparator, it is difficult to see the merit of the comparison being made by the Department, when the particulars of the inappropriate and threatening conduct, by the sending of emails, is not provided. Mr Smith's conduct did not involve the sending of inappropriate and threatening emails to another person.
  1. [319]
    Thirdly, as referred to earlier, other forms of disciplinary action, other than dismissal, would have been more proportionate to Mr Smith's impugned conduct as found by Ms Bloch.
  1. [320]
    The disproportionate nature of Mr Smith's dismissal is borne out by Mr Calvert's evidence as to why he dismissed Mr Smith. Mr Calvert stated:
  1. 27
    Ultimately for me, it was clear that the termination of Mr Smith's employment was appropriate and proportionate because;
  1. Mr Smith's aggressive and intimidatory conduct on the night of the Golden Gala fell far below my view of the expected standards of behaviour for a manager;
  1. Mr Smith did not demonstrate a high level of insight into how and why his actions were unsafe and failed to meet the expected standards of behaviour;
  1. the Golden Gala Awards is a work event which is intended to be a celebration and recognition of those GCHHS staff who exemplify the values which Mr Smith failed to uphold later that night;
  1. it is only through keeping managers accountable for their behaviour that the GCHHS can make progress with its culture;
  1. Mr Smith had been employed within GCHHS for less than six months when the conduct occurred;
  1. Mr Smith's explanations for his conduct were unbelievable, being that the incidents at the Golden Gala would not have occurred if GCHHS had informed him that a safety plan was developed for his ex-wife;
  1. Mr Smith's submissions that the investigation into the incident was affected by bias or was somehow unfair to him was completely without merit and indicated to me that he had not accepted responsibility for his conduct and he did not have a high potential for modified behaviour in the future;
  1. Mr Smith's conduct at the Golden Gala has a serious detrimental effect on others; and
  1. Mr Smith's conduct was clearly against the Health Service's values of Integrity (to be open and accountable), Respect (to listen, value and acknowledge each other), and Compassion (to treat others with understanding and sensitivity).[299]
  1. [321]
    In relation to the values Mr Calvert said that Mr Smith did not meet, and the progression of the Health Service's culture:
  • while these are, in general, important matters for the Health Service, they cannot supplant an objective analysis of the actual conduct engaged in by an employee in determining a proportionate disciplinary response;
  • Mr Brown, in the first show cause,[300] never alleged that Mr Smith did not meet the Health Service's values of Integrity, Respect and Compassion;
  • while Ms Bloch found that Mr Smith's behaviour '…was not in accordance with' the Health Service's values of '… Integrity, Excellence, Respect or Compassion' (set out in the CCF),[301] she never indicated to Mr Smith that the disciplinary penalty that may be imposed on him would be expressly considered as against those values;[302] and
  • Mr Calvert's opinion that, due to Mr Smith's submissions that the investigation into his conduct was biased and unfair, he (Mr Smith) did not accept responsibility for his conduct and that he did not have a high potential for modification of his behaviour in the future, is completely at odds with the fact that there had been no repeat of Mr Smith's conduct at the Gala between 4 December 2020 (the date of the Gala) and 25 October 2021 (the date of Mr Smith's dismissal).
  1. [322]
    In my view, the balance of these competing factors were unreasonably weighed against Mr Smith when it came to the decision to dismiss him. Disciplinary action could have and should have been taken against Mr Smith that would have maintained public confidence in the Health Service in respect of the conduct of its employees. Given Mr Smith's otherwise good disciplinary record and the nature and extent of Mr Smith's impugned conduct, which occurred on the one occasion at the Gala, the reasonable course would have been to take disciplinary action against Mr Smith, other than his dismissal, and warn Mr Smith that any repeat of such conduct may result in harsher disciplinary action being taken against him, including his dismissal.
  1. [323]
    For these reasons, my view is that Mr Smith's dismissal was not proportionate to the conduct of which Ms Bloch found he engaged.
  1. [324]
    Further still, the decision to dismiss Mr Smith was disproportionate to the conduct in which I have found he engaged. In relation to Allegation One, the conduct in which Mr Smith engaged, as I have found, and as is set out in paragraph [230], involved him speaking to Ms Mockler and not moving away from her when she asked him. While that conduct made Ms Mockler feel uncomfortable and upset, it did not involve serious wrong doing on his part compared to, for example, if his conduct had been physically threatening to Ms Mockler.  In relation to Allegation Two, the conduct in which Mr Smith engaged, as I have found, and as is set out in paragraph [249], involved one instance of him speaking loudly and acting in an aggressive manner to Ms Bekkeli. That conduct did not involve serious wrong doing on his part in that Ms Bekkeli stated that she did not feel her safety was being threatened. 
  1. [325]
    The Department also submitted that the reason Mr Smith was not suspended was because it was necessary to await the findings of the Investigator before conclusions could reasonably be drawn by the Department about what had occurred and whether disciplinary action was appropriate.[303] In making this submission, the Department relied on the evidence of Mr Brown, namely, that there was no reason to suspend Mr Smith because:
  • Mr Smith had also made a complaint about the events at the Gala and the Health Service had to obtain further evidence to understand what happened that night;[304] and
  • until the Investigator made his report, Mr Brown did not believe '… the conduct was sufficient to suspend at that stage'.[305]
  1. [326]
    The Department further submitted, based on Mr Brown's evidence[306] that while                   Mr Brown thought there were risks with Mr Smith remaining in the workplace, the Health Service had other processes in place during that period to ensure that '… the parties did not cross paths'.[307] On Mr Brown's evidence, 'the parties' referred to by the Department were those involved in the events at the Gala.[308]
  1. [327]
    The Department also submitted that Mr Smith remained employed for 10 months after the Gala, '… in part due to the length of the external investigation, but also because of associated challenges Mr Smith brought to the Commission regarding the disciplinary process.[309] The evidence relied upon, for this alternative submission, was Mr Calvert's evidence in re-examination, namely:

Okay. All right. All right. Now, I’ll just move on to another topic. You were asked about Mr Smith not being suspended pending your ultimate determination in this matter and you said - you referred to there being various legal processes, and then you said that you can’t pre-empt the outcome. Do you recall saying something like that?---Yes.

What did you mean by that?---Well, I think once the – once the process started I - I - my understanding is that Mr Smith came to the QIRC and lodged various documents and they - they held things up for months.

Okay. All right. So when you’re talking about pre-empting the outcome, what - outcome of what, those various legal processes?---Sorry. What I - what I was trying to get across was we’ve - we’ve commenced a process and - when we haven’t initially suspended a member of staff and then decided to suspend them, it - it would - it would be pre-empting the outcome of that process.

All right. And the process you’re referring to is appointing the external investigators to look at the matter?---The whole thing. 

Okay?---Yep.[310]

  1. [328]
    I cannot accept these submissions by the Department.
  1. [329]
    Pursuant to s 137(1) of the PS Act, a chief executive of a Department (or, in the present case, the delegate of the chief executive of the Department) may, by notice, suspend a person from duty if the chief executive reasonably believes, for a public service officer, the proper and efficient management of the department might be prejudiced if the officer was not suspended or, for a public service employee, the employee is liable to discipline under a disciplinary law.
  1. [330]
    The Investigator's report was received by the Health Service on about 31 March 2021[311] and stated that Allegations One, Two and Three could be substantiated.[312] No action was taken to suspend Mr Smith at or just after that time.
  1. [331]
    Ms Bloch made her disciplinary finding decision on 26 July 2021. No action was taken to suspend Mr Smith at or just after that time.
  1. [332]
    The inferences I draw from these facts are that the Department, from a safety perspective, was quite comfortable in leaving Mr Smith in the workplace despite the Investigation report and Ms Bloch's disciplinary finding decision, and that Mr Calvert did not reasonably believe that the proper and efficient management of the Health Service might be prejudiced if Mr Smith was not suspended.
  1. [333]
    The '… associated challenges' referred to by the Department were:
  • a Workplace Bullying application and a General Protections application filed in the Commission by Mr Smith on 12 August 2021, both made after the Health Service's receipt of the Investigator's report and after Ms Bloch's disciplinary findings of fact; and
  • Mr Smith's application made to the Commission for an interim injunction to restrain the Department from finalising the disciplinary action against him until his General Protections application was determined,[313] being an application that was dismissed by the Commission on 1 October 2021.
  1. [334]
    In my view, any decision to suspend Mr Smith, for any of the reasons provided under s 137(1) of the PS Act, could not have pre-empted the outcome of the disciplinary proceeding commenced against him. The decision to suspend an employee pursuant to s 137(1) of the PS Act is not disciplinary action. Section 137(1) of the PS Act expressly recognises that the suspension of an employee and a disciplinary proceeding may            co-exist. The fact that the Health Service did not see Mr Smith's continued presence at work – at any time, including after the receipt of the Investigation report and after Ms Bloch's disciplinary finding decision – as amounting to any type of risk, is evidence supporting the contention that Mr Smith's dismissal was not proportionate to the conduct of which Ms Bloch found he engaged.
  1. [335]
    Further, provided Mr Calvert was reasonably satisfied that Mr Smith should have been suspended for one of the reasons under s 137(1) of the PS Act, the associated challenges could not have been a barrier to Mr Smith's suspension.  

The allegation the investigation was biased

  1. [336]
    Mr Smith submitted that the investigation was infected with such bias that the evidence contained therein ought not to have been relied upon in dismissing him.[314]
  1. [337]
    It is unnecessary to make a finding about this because, for the reasons given earlier, this proceeding is not an appeal from the decision to dismiss Mr Smith. I have made my own assessment of the evidence relied upon to dismiss Mr Smith.

The alleged breach of the Workplace Harassment Human Resources Policy

  1. [338]
    Mr Smith referred to Ms Mockler's evidence in cross-examination that she was harassed by him, and submitted that there was no evidence that he did harass Ms Mockler within the meaning of the Workplace Harassment Human Resources Policy.[315]
  1. [339]
    There is no need to make a finding about this matter. As the Department correctly submitted,[316] it was not part of any substantiated allegation that Mr Smith had contravened that policy.
  1. [340]
    For this reason, no finding can and should be made that Mr Smith harassed Ms Mockler or Ms Bekkeli within the meaning of the Workplace Harassment Human Resources Policy or at all. Mr Smith was never given an opportunity to respond to any such  allegation. For these reasons, the submission made by the Department[317] that Mr Smith harassed Ms Mockler and Ms Bekkeli is not a meritorious submission.

Mr Smith's dismissal was unfair because it was unreasonable

  1. [341]
    On the evidence before me, Mr Smith did, in part, engage in the conduct the subject of the first substantiated allegation and he did engage in the conduct the subject of the second substantiated allegation.  This meant that Mr Smith had contravened, without reasonable excuse, cl 1.5 a. of the Code in respect of Ms Mockler and Ms Bekkeli. That conduct was sufficiently serious to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act.
  1. [342]
    However, for the reasons I have given, Mr Smith's impugned conduct, even as found by Ms Bloch and acted upon by Mr Calvert, did not warrant his dismissal.
  1. [343]
    The submissions made by the Department, that management action was not appropriate in the circumstances, miss the point. Disciplinary action should have been taken against Mr Smith.
  1. [344]
    For the reasons I have given, disciplinary action short of Mr Smith's dismissal was more proportionate to the maintenance of public confidence in the Health Service in respect of the conduct of its employees. My view about this becomes more acute when regard is had to my findings that:
  • in relation to Allegation One, there is no probative evidence Ms Mockler was intimidated by Mr Smith; and
  • Mr Smith did not engage in the conduct the subject of Allegation Three.
  1. [345]
    Mr Smith's dismissal was not proportionate to the conduct of which he did engage. This makes Mr Smith's dismissal unreasonable.
  1. [346]
    Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [347]
    I am satisfied that Mr Smith's dismissal was unfair.

Should the Commission make an order under s 321 or s 322 of the Act?

  1. [348]
    Section 319 of the Act provides:

319  Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by–

  1. making an order under section 321 or 322; or
  1. dismissing the application.
  1. [349]
    Sections 321 provides:

321  Remedies – reinstatement or re-employment

  1. This section applies if the commission is satisfied an employee was unfairly dismissed.
  1. The commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
  1. If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.
  1. The commission may also– 
  1. make an order it considers necessary to maintain the continuity of the employee’s employment or service; and
  1. order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
  1. order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.
  1. This section does not limit the commission’s power to make an interim or interlocutory order.
  1. [350]
    In respect of the power of the Commission to re-employ, as contained in s 321(3) of the Act, it is necessary first to demonstrate that the employer has another position available that the Commission considers appropriate.[318]
  1. [351]
    Section 322(1) of the Act provides that if, and only if, the Commission considers reinstatement or re-employment would be impractical, the Commission may order the employer to pay the employee an amount decided by the Commission.

Is Mr Smith's reinstatement or re-employment impracticable?

  1. [352]
    Mr Smith's position has been abolished. Consequently, he does not dispute that his reinstatement is impracticable.
  1. [353]
    However, Mr Smith contends that his re-employment is not impracticable because, given the size of the workforce in the Health Service, '… it would not be impractical for him to be re-employed in an AO5 position with Queensland Health'.[319]
  1. [354]
    Mr Smith further submits that it is appropriate that an order be made that the Department pay him the remuneration lost by reason of his dismissal[320] and that his re-employment is to be on the basis that his continuity of service is maintained.[321]
  1. [355]
    The Department submits that:
  • in determining the appropriateness of reinstatement, in circumstances where an employer asserts their trust and confidence in an employee has been destroyed, the Commission must decide whether a sufficient level of trust and confidence can be restored to make the employment relationship viable;[322]
  • given the nature of the conduct which was in breach of the Code '… and the CCF, and the Applicant's lack of insight as to the impact of his conduct upon others, the Applicant by his conduct has irrevocably compromised his employment relationship and continuing suitability for employment with the Respondent';[323] and
  • the irrevocable compromise of the employment relationship is said to be particularly demonstrated by Mr Smith's conduct and behaviour in relation to his ex-wife, a fellow employee, and the circumstances in which he came to be employed with the Department, in that when he applied for the position in the Health Service, Mr Smith was aware that:

–his ex-wife was a long-standing employee of the Department within the Health Service;

–his role may involve him working at various locations around the Health Service campus and his position's primary work location may change;

–he was, at the time, subject to mutual undertakings, relevantly prohibiting the parties from having contact with, and not being within 100 metres of, each other; and

–his non-disclosure of the mutual undertakings in the recruitment process, and upon commencement of employment, created a situation that caused distress for Ms Smith, that was unnecessary and caused a concern for the Health Service having to manage Mr and Ms Smith's personal circumstances.[324]

  1. [356]
    The Department then submitted:
  • that despite knowing these things, Mr Smith did not disclose any of those matters prior to commencing his employment or any time after his commencement;
  • even though the Department accepts that there was no specific policy in place at the time which required Mr Smith to declare or disclose such information, it was reasonable for him to have done so in order to allow the Department to be able to properly manage the situation, and Mr Smith's failure to say anything about any of these matters placed the Department in a very difficult position;
  • this was compounded by the fact that Mr Smith was actively making complaints about his ex-wife regarding her conduct in that shortly before his employment interview in June 2020, Mr Smith made the hand sanitizer complaint and the fraud allegation, and the premise of these complaints were that Ms Smith had engaged in dishonest, fraudulent behaviour in relation to her employment and were serious allegations;
  • the purpose of these complaints was to make issues for his ex-wife at her workplace, being conduct that demonstrates Mr Smith's lack of insight into, and awareness of, the impacts of his behaviour and those matters placed the Department in a difficult position;
  • each of the matters raised by Mr Smith were investigated, considered not to be serious from the Respondent's perspective and were managed at a local level; and
  • none of these matters bode well for an ongoing tenable employment relationship.[325]
  1. [357]
    Finally, the Department submitted that:
  • it was  untenable for Mr and Ms Smith to continue working in the same workplace, given Mr Smith's inability to conduct himself in an appropriate manner when it comes to his ex-wife;
  • the evidence of Mr Smith's conduct during his probation period is also relevant to whether the employment relationship can be salvaged in that Exhibits 3 and 4    (namely, the review of his Professional Development Plan regarding his communication style referred to earlier in paragraphs [50]-[51]) show the Department raised issues with Mr Smith '… concerning his behaviour towards a number of females within his team' and whilst those issues were not relied upon in relation to the decision to terminate his employment, they '… are relevant to the issue of whether reinstatement is practicable';
  • Mr Smith has demonstrated over the course of his employment (and prior) an inability to understand the impact of his behaviour upon others (particularly females within the workplace) and a lack of insight into what appropriate behaviour from a manager should be; and
  • the effect of Mr Smith's conduct:

[H]ad the potential to significantly damage the Respondent's reputation and place the Respondent in an untenable position in relation to ensuring the health and safety of other employees in the workplace, given the conduct the subject of the allegations occurred at a public place where members of the public including sponsors were in attendance. Public trust and confidence would be eroded if, despite such conduct, the Applicant was to be re-employed with the Respondent, as it would send a message that inappropriate behaviour towards females is condoned by the Respondent.[326]

  1. [358]
    Generally speaking, the appropriateness of reinstatement will be considered in a common sense way: Nicholson v Heaven and Earth Gallery Pty Ltd.[327]
  1. [359]
    In respect of a consideration of what is meant by 'impracticable' President Hall in Queensland Teachers Union of Employees v Department of Education[328] stated:

It may be conceded that trust and confidence is a necessary ingredient of any employment relationship.  It follows that ‘….. a loss of trust and confidence is a relevant consideration in determining whether reinstatement is impracticable, provided that such loss of trust and confidence is soundly and rationally based: Perkins v Grace Worldwide (Australia) Pty Ltd (1997) 72 IR 186 at 191.  At the same time, the word “impracticable” does not import into s.79(1) the whole of the judge made rule against ordering specific performance of contracts of employment because of a reluctance to force parties into a personal relationship involving elements of mutual confidence, compare Perkins v Grace Worldwide (Australia) Pty Ltd (ibid) at 190, Liddell v Lembke (1994) 1 IRCR 466 at 495 per Gray J and Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394 at 396 per Marshall J.

  1. [360]
    In Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter[329]  a Full Bench of the Fair Work Commission[330] relevantly stated in respect of the issue of the rationality of the claim by a former employer of the loss of trust and confidence in a former employee:

[27]   The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

● Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.

●  Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.

●  An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.

●  The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.

● The fact that it may be difficult or embarrassing for an employer to be required to re-employ an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate.[331]

[28] Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.

  1. [361]
    Similarly, in White,[332] Deputy President O'Connor relevantly stated:

[86] The respondent drew the Commission's attention to the decision of Wilcox J in Nicolson v Heaven and Earth Gallery where his Honour wrote:

"The word "impracticable" requires and permits the Court to take into account all of the circumstance of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement; notwithstanding that the job remains available."

[87] There is no evidence before the Commission to support a conclusion that it would be "impracticable" to reinstate the applicant in the sense that such an order would impose "unacceptable problems or embarrassment or seriously affect productivity, or harmony".

[88] The applicant referred the Commission to Perkins v Grace Worldwide (Aust) Pty Ltd where the Full Bench of the Fair Work Commission wrote:

"Trust and confidence are concepts of degree.  It is rare for any human being to have total trust in another.  What is important in the employment relationship is that there be sufficient trust to make the relationship viable and productive.  Whether that standard is reached in any particular case must depend upon the circumstances of the particular case.  And in assessing that question, it is appropriate to consider the rationality of any attitude taken by a party.

It may be difficult or embarrassing for an employer to be required to re-employ a person the employer believed to have been guilty of wrongdoing.  The requirement may cause inconvenience to the employer.  But if there is such a requirement, it will be because the employee’s employment was earlier terminated without a valid reason or without extending procedural fairness to the employee.  The problems will be of the employer’s own making.  If the employer is of even average fair-mindedness, they are likely to prove short-lived.  Problems such as this do not necessarily indicate such a loss of confidence as to make the restoration of the employment relationship impracticable."

[89] Whilst I accept that it may be inconvenient or difficult for the respondent to reinstate the applicant, it is nevertheless, in my view, not impracticable for them to do so. In Auto Logistics Pty Ltd v Kovacs de Jersey P considered the meaning of word "impracticable". His Honour concluded:

"That word does in my view bear its ordinary meaning, and it is not enough, to establish practicability, to show that restoration of employment would be merely inconvenient or difficult. As the dictionaries confirm, the word means practicably impossible."

  1. [362]
    In light of the principles I referred to above, there must be some scrutiny of the submissions made by the Department. This is particularly the case given that reinstatement or re-employment are the principal remedies provided for by the Act when the Commission is satisfied the employee's dismissal has been unfair.
  1. [363]
    Assuming for the moment that the Department has another position available that I consider suitable, I am not of the view that Mr Smith's re-employment is impracticable for the reasons given by the Department.
  1. [364]
    That is to say, looking at whether there is a loss of trust and confidence between the Department and Mr Smith, that is soundly and rationally based, and considered in a common sense way, I am not persuaded that Mr Smith's re-employment is impracticable.
  1. [365]
    There are five reasons for this.
  1. [366]
    First, I accept that Mr Smith, upon his application for employment in the Health Service or, at the very least, upon his commencement of employment in the Health Service,  should have disclosed to the Department the fact that Ms Smith worked in the same location, as well as disclosing the first mutual undertaking. Even though there was no legal or policy obligation on Mr Smith's part to do so, in my view, he should have made such disclosures so that the Health Service would be aware of the obligations of both Mr Smith and Ms Smith and so that it could have taken reasonable steps, as far as was practicable, to ensure that neither of them contravened any undertaking given to each other.
  1. [367]
    Ultimately, the Health Service did become aware of the mutual undertakings given by Mr and Ms Smith, including the 2021 consent Protection Orders.
  1. [368]
    From my perspective, the Health Service acted in a very fair and proper manner in putting steps in place to ensure, as far as was practicable, the facilitation of Mr Smith's compliance with the 2021 consent Protection Orders. This was done through the development and implementation of Mr Smith's 2021 safety plan and the Health Service's express expectations of Mr Smith, as set out by Ms Castles in her letter to Mr Smith dated 16 June 2021. That letter, and the Health Service's expectations of Mr  Smith, are set out in detail in paragraph [58] of these reasons. Ms Castles stated that she was reasonably satisfied it was possible, under the circumstances set out, for Mr Smith and Ms Smith to both remain employed in the Health Service and work in the same location, being the Gold Coast University Hospital.
  1. [369]
    These steps, and the position as expressed by Ms Castles, are directly at odds with the submissions made by the Department[333] and the evidence called in aid of its submission, namely, Ms Bloch's evidence given in cross examination that Mr Smith's non-disclosure of the mutual undertakings in the recruitment process, and upon his commencement of employment, caused distress for Ms Smith that was unnecessary and caused a concern for the Health Service in having to manage a situation it should not have had to manage.[334] On the evidence before me, having regard to Ms Castles' letter, upon the Health Service becoming aware of the 2021 consent Protection Orders, it undertook a risk assessment, developed a safety plan for Mr Smith and expressly set out for Mr Smith its expectations for Mr and Ms Smith to be able to continue working within the Health Service and at the same location.
  1. [370]
    Added to this is that, for the reasons I have given earlier, the Health Service did not consider it unsafe to leave Mr Smith in the workplace between the date of the Gala and the date of his dismissal, in that Mr Smith was not suspended from duty.  In addition,  there is no evidence that Mr Smith, over that period of time, engaged in any conduct, whatsoever, in breach of any undertaking he gave to Ms Smith or in breach of the expectations the Health Service required or expected him to meet as set out in Ms Castles' letter. There is no evidence that Mr Smith, over that period of time, acted improperly or in any unsafe way toward any other employee.
  1. [371]
    Secondly, even assuming that Mr Smith's motivation for making the hand sanitiser allegation and the fraud allegation against Ms Smith was for deleterious purposes connected with the acrimony of their marriage breakup, as referred to earlier in paragraphs [32]-[34] and [52]-[55] of these reasons, both allegations made by Mr Smith to the Health Service were actually investigated by the Health Service.
  1. [372]
    The Department submitted that the purpose of these complaints was to make issues for Ms Smith at her workplace which it characterised as demonstrating Mr Smith's lack of insight into an awareness of the impacts of his behaviour and that they placed the Department in a difficult position. However, on the evidence before me, both allegations were accepted by the Health Service as ones that were legitimately made and were investigated.
  1. [373]
    In respect of the hand sanitiser allegation, after it was assessed by the MAC, and determined not to be a matter that needed referral to the Crime and Corruption Commission, management action was taken by the Health Service.
  1. [374]
    In respect of the fraud allegation, Mr Potts made an assessment of those allegations and advised Mr Smith that:
  • leave records indicated Ms Smith had taken leave for appropriate purposes, but further enquiries were still needed; and
  • the use of emails by Ms Smith was consistent with the relevant policy.
  1. [375]
    There was no finding by any relevant officer of the Health Service that these allegations were made vexatiously. Ms Smith was and is an employee in the Health Service. There was no subsequent investigation by the Health Service, of Mr Smith, that he made these allegations for reasons that may have given rise to disciplinary action being taken against him.
  1. [376]
    In these circumstances, I cannot form the view that the fact Mr Smith made these allegations means that there is a loss of trust and confidence between the Department and Mr Smith that is soundly and rationally based. The fact that senior employees of the Health Service may hold negative views about certain aspects of Mr Smith's character, because of these complaints, is not a sound and rational basis to conclude that his re-employment is impracticable. These complaints have no direct relationship to the conduct for which he was dismissed by the Health Service.
  1. [377]
    Thirdly, the Department submitted that it was untenable for Mr and Ms Smith to continue working in the same workplace given Mr Smith's inability to conduct himself in an appropriate manner when it came to Ms Smith. The difficulty I have accepting that submission is that there is no evidence that Mr Smith acted in an inappropriate manner towards Ms Smith during the time of his employment. That is to say, there is no evidence that Mr Smith acted inappropriately towards Ms Smith at any time during his employment in the Health Service in breach of:
  • the Code;
  • the PS Act;
  • any applicable Health Service policy; or
  • any undertaking he gave to Ms Smith.
  1. [378]
    Further, for the reasons given earlier, Ms Castles stated to Mr Smith that she was of the view that Mr and Ms Smith could safely work in the same workplace, namely the Gold Coast University Hospital, by reason of Mr Smith's safety plan and where Mr Smith complied with the Health Service's relevant expectations of him as set out in Ms Castles' letter. There is no evidence Mr Smith acted in a way inconsistent with those expectations, in respect of Ms Smith, during the time of his employment in the Health Service.
  1. [379]
    Fourthly, I do not accept the tenor of the submissions made by the Department about the review of Mr Smith's Professional Development Plan regarding his communication style.
  1. [380]
    True it is that the issues regarding Mr Smith's communication style concerned three female employees who reported to him. However, on a plain reading of Exhibit 3, the concern about Mr Smith's communication style, as expressed by Ms Willcocks, did not concern his behaviour towards females per se.
  1. [381]
    The evidence is that Ms Willcocks' concerns were expressed, and remedial action was taken, because of Mr Smith's communication style to his subordinate employees. Indeed, Ms Willcocks stated that, looking at the complaints collectively, she was of the view that Mr Smith's '… communication style was perceived by the complainants as direct, imposing, uncaring and at times, arrogant' and that she (Ms Willcocks) was disappointed that Mr Smith had not reflected on his verbal and non-verbal communication style or '… how it impacts on others throughout this process'.
  1. [382]
    As referred to earlier in these reasons, the issues raised by Ms Willcocks were dealt with by a review of Mr Smith's Professional Development Plan. However, there is no evidence, following Ms Willcocks' letter, of any other action being taken in relation to this issue.
  1. [383]
    For these reasons, I cannot accept the Department's submissions that these issues are relevant to whether re-employment is practicable. Clearly there was an issue with              Mr Smith's communication style to the extent that he did lack insight into how he communicated with employees who reported to him. However, that matter was brought to his attention, practical steps to change his communication style were proposed, and there is no evidence that there was a repeat of any such lack of insight on Mr Smith's part.
  1. [384]
    Finally, I do not accept the Department's submission that the effect of Mr Smith's conduct had the potential to significantly damage the Department's reputation and place it in an untenable position in relation to ensuring the health and safety of other employees in the workplace given the nature of Mr Smith's conduct at the Gala. In particular, the Department submitted that public trust and confidence would be eroded if, despite Mr Smith's conduct, he was to be re-employed as it would send the message that inappropriate behaviour towards females is condoned by the Department.
  1. [385]
    These submissions are overstated.
  1. [386]
    In the first place, there was no evidence before the Commission that Mr Smith's conduct at the Gala became public or that any sponsors of the Health Service formed any negative view of the Health Service because of Mr Smith's conduct.
  1. [387]
    In the second place, while I accept that the purpose of disciplinary action against public service employees is to protect the public and maintain public confidence, the confidence the public has of the Health Service in respect of Mr Smith's proven breaches of the Code, in respect of Ms Mockler and Ms Bekkeli, would be maintained by taking proportionate disciplinary action against Mr Smith. As I have referred to earlier, disciplinary action should have been taken by the Health Service against Mr Smith, but it should have been disciplinary action proportionate to that proven conduct.
  1. [388]
    Thirdly, while it is true that Mr Smith was found by Ms Bloch to have treated Ms Mockler and Ms Bekkeli with courtesy and respect, Mr Smith's conduct was not serious wrongdoing compared to, for example, if he had engaged in misconduct towards Ms Mockler and Ms Bekkeli. As referred to earlier, Ms Bloch considered whether Mr Smith had engaged in misconduct, and decided that he did not.
  1. [389]
    On the findings of fact I have made about Allegations One and Two, Mr Smith's conduct cannot be described as serious wrongdoing on his part.
  1. [390]
    To some extent, I do share the Department's concern about Mr Smith's lack of insight into his behaviour at the Gala. Mr Smith's evidence primarily tried to put blame on others for his conduct that led to his dismissal.
  1. [391]
    Having said that, there was some measure of insight and remorse expressed by Mr Smith.
  1. [392]
    In his response to the first show cause, Mr Smith stated that since the Gala he had:
  • re-completed his training in Ethics Integrity and Accountability, Fraud Control Awareness and Public Interest Disclosure on Learning on Line;
  • re-completed his training in Occupational Violence Prevention, Conflict Management and Challenging Behaviour Awareness on Learning on Line;
  • refreshed his knowledge of the Code and endeavoured to apply that in his daily performance and undertakings in his role of Service and Data Manager;
  • always ensured that he conducted himself in a professional, courteous and respectful manner; and
  • demonstrated his confidentiality in the matter by not discussing it with anyone other than his Line Manager, Human Resources Business Partner, his support person and with his Union.[335]
  1. [393]
    In his response to the second show cause, Mr Smith expressed to Mr Brown that he was willing to engage in mediation or other training, if appropriate, to resolve the matter.[336]
  1. [394]
    However, in my view, what is more telling on the evidence is that Mr Smith worked successfully in the Health Service, and without any other allegation or detrimental finding being made about his conduct, between the date after the Gala and the date of his dismissal. Weighing that evidence up with my concern about the degree to which Mr Smith does lack of insight about his behaviour, I cannot reasonably come to the conclusion that the Department's expressed loss of trust and confidence in Mr Smith is soundly and rationally based.
  1. [395]
    For these reasons, I am of the view that, subject to the Department identifying an available position that I consider suitable, Mr Smith should be re-employed.
  1. [396]
    There was some evidence before me, at the time of the hearing of this matter, of other vacant classification AO5 positions in the Health Service. I am unaware if those positions are still available or if other positions, at the AO5 classification level, have become available.
  1. [397]
    I will require the parties to put on further evidence about that matter, so that I may properly assess whether or not there is a position available, that I consider suitable, into which Mr Smith could be re-employed. In the first instance, that evidence should be about such available positions in the Health Service as opposed to the Department. Any other orders I may make will be dependent on my decision about there being an available and suitable position.
  1. [398]
    Section 321(3) of the Act provides that the Commission may order the employer to re-employ the employee in another position that the employer has available. As such, the Department should file its evidence first.

Conclusion

  1. [399]
    For the reasons I have given:
  • Mr Smith's dismissal was unfair because it was unreasonable; and
  • Mr Smith's re-employment, subject to another position that the Department has available and that I consider suitable, is not impracticable.

Directions Orders

  1. [400]
    I make the following Directions Orders:
  1. That the Respondent files in the Industrial Registry, and serves on the Applicant, affidavit material which identifies all current vacant positions, classification AO5, within the Gold Coast Hospital and Health Service, by 4.00 pm on Wednesday, 25 October 2023.
  1. That the Applicant files in the Industrial Registry, and serves on the Respondent, affidavit material which identifies any other current vacant positions, classification AO5, within the Gold Coast Hospital and Health Service, by 4.00 pm on Wednesday, 8 November 2023.
  1. That there be a further hearing, limited to the question of whether there is another position, classification AO5, that the Department has available and that the Commission considers appropriate for the purpose of considering the Applicant's re-employment, to be held before Deputy President Merrell at 9.00 am on Friday, 10 November 2023 at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane.
  1. By 4.00 pm on Thursday, 9 November 2023, the parties are to give notice to each other as to which deponents, if any, are required for cross-examination at the hearing on Friday, 10 November 2023.

Footnotes

[1] Exhibit 1, exhibit 'PS-14', page 156 of the Court Book ('the CB').

[2] Exhibit 1, exhibit 'PS-14', page 156 of the CB.

[3] Exhibit 10, exhibit 'HB8', page 815 of the CB.  Mr Calvert conceded the disciplinary finding of misconduct, to which he referred in his letter to Mr Smith, was in error: Exhibit 24, para. 30, page 1330 of the CB. Mr Smith accepts that Ms Bloch's disciplinary finding decision is the correct disciplinary finding: Mr Smith's written submissions filed on 9 June 2023 ('Mr Smith's submissions'), para. 4.

[4] Exhibit 10, exhibit 'HB8', pages 811-813 of the CB.

[5] Who was the wife of another employee.

[6] Exhibit 10, exhibit 'HB8', pages 813-814 of the CB.

[7] Exhibit 10, exhibit 'HB8', page 814 of the CB.

[8] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 ('Byrne'), 465 (McHugh and Gummow JJ).

[9] Ibid.

[10] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (President Hall) ('Walker').

[11] Ibid 259.

[12] Lam v Gold Coast Hospital and Health Service [2021] ICQ 010.

[13] Citations omitted.

[14] [2017] QIRC 041 ('White') [5].

[15] As his Honour then was.

[16] [2016] QIRC 028 ('Alfred') [9].

[17] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw') 361-362 (Dixon J).

[18] Alfred (n 16) [8].

[19] Ms Bloch's evidence was that she considered whether Mr Smith was liable for misconduct within the meaning of s 187(1)(b) of the Public Service Act 2008, but decided against that conclusion: Exhibit 10, para. 41, page 641 of the CB.

[20] Walker (n 10) 259 (President Hall).

[21] Stark v P&O Resorts (Heron) Island (1993) 144 QGIG 914, 916 (Chief Commissioner Hall).

[22] Exhibit 10, exhibit 'HB8' pages 811-814 of the CB.

[23] Briginshaw (n 17).

[24] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).

[25] Mr Smith's submissions, paras. 82 and 91 in relation to the first substantiated allegation, para. 112 in relation to the second substantiated allegation, and para. 135 in relation to the third substantiated allegation.

[26] The written submissions of the State of Queensland (Queensland Health) filed on 30 June 2023, ('the Department's submissions'), para. 17.

[27] [1994] HCA 48; (1994) 181 CLR 387.

[28] Ibid 399.

[29] Citations omitted.

[30] Mr Smith's submissions, para. 7. a.

[31] Mr Smith's submissions, para. 7. b.

[32] Mr Smith's submissions, para. 7. c.

[33] Mr Smith's submissions, para. 8. a.

[34] Mr Smith's submissions, para. 8. b.

[35] Mr Smith's submissions, para. 9.

[36] The Department's submissions, para. 25.

[37] The Department's submissions, para. 26.

[38] The Department's submissions, para. 27.

[39] Exhibit 16, para. 6.

[40] Exhibit 1, paras. 2 and 3.

[41] Exhibit 1, para. 5.

[42] Exhibit 16, exhibit 'JR8', pages 522 and 523 of the CB.

[43] Exhibit 16, para. 6.

[44] Exhibit 16, exhibit 'JR13', page 547 of the CB.

[45] T 1-16, ll 4-6.

[46] T 1-16, ll 16-21.

[47] Exhibit 24, exhibit 'RC1', page 1333 of the CB.

[48] T 1-12, l 6.

[49] Exhibit 24, exhibit 'RC1', page 1333 of the CB.

[50] Exhibit 21, exhibit 'GB-3', page 857 of the CB.

[51] T 1-13, ll 28-31.

[52] T 1-14, ll 9-11.

[53] T 1-14, ll 13-17.

[54] T 1-16, ll 23-26.

[55] Exhibit 1, para. 7.

[56] T 1-18, ll 34-42.

[57] T 1-16, ll 28-31.

[58] T 1-9, ll 4-23.

[59] Exhibit 16, exhibit 'JR8', pages 521-523 of the CB.

[60] Exhibit 16, exhibit 'JR8', page 545 of the CB.

[61] T 1-8, ll 43-44.

[62] T 1-9, ll 6-7.

[63] Exhibit 20, para. 43.

[64] Exhibit 20, exhibit 'TAB-10', page 1264 of the CB.

[65] Exhibit 20, exhibit 'TAB-10', pages 1265-1266.

[66] Exhibit 20, exhibit 'TAB-11', page 1268.

[67] Exhibit 24, para. 9.

[68] T 1-22, l 16 to T 1-27, l 4 and Exhibit 16, paras. 25-40.

[69] Exhibit 16, paras. 42-54.

[70] Exhibit 16, para. 44.

[71] Exhibit 16, paras. 44-53 and Exhibit 20, paras. 32-40.

[72] Exhibit 16, para. 41 and exhibit 'JR15', pages 557-558 of the CB.

[73] Exhibit 4.

[74] Exhibit 3.

[75] Exhibit 21, exhibit 'GB-4', pages 859-860 of the CB.

[76] Exhibit 21, exhibit 'GB-4', page 860 of the CB.

[77] T 1-34, ll 16-17.

[78] Exhibit 21, exhibit 'GB-5', page 863 of the CB.

[79] Exhibit 2, exhibit 'PS2-2', pages 214 and 215 of the CB.

[80] Exhibit 16, para. 74.

[81] Exhibit 16, paras. 72-78 and exhibits 'JR26' and 'JR27'.

[82] Exhibit 16, exhibit 'JR27', pages 632-634 of the CB. Emphasis added.

[83] Exhibit 2, paras. 3 and 6.

[84] T 1-17, ll 19-24.

[85] T 5-39, ll 4-6.

[86] T 3-5, l 4.

[87] Exhibit 13, para. 2.

[88] T 1-37, ll 38-40.

[89] Other paragraphs of cl 1.5 of the Code may apply in such a case, for example, paragraph d. of cl 1.5 of the Code. Further, in such a circumstance, any inappropriate or improper conduct in a private capacity by a public service employee, towards a member of the public, may amount to misconduct: see s 187(4)(b) of the Public Service Act 2008 and s 91(5)(b) of the Public Sector Act 2022.

[90] Mr Smith's further written submissions filed on 1 September 2023 ('Mr Smith's further submissions'), paras 4-8.

[91] Mr Smith's further submissions, para. 4 a. and para. 16. Section 6 of the Public Sector Ethics Act 1994 provides:

6  Integrity and impartiality

In recognition that public office involves a public trust, public service agencies, public sector entities and public officials seek to promote public confidence in the integrity of the public sector and–

  1. (a)
    are committed to the highest ethical standards; and
  1. (b)
    accept and value their duty to provide advice which is objective, independent, apolitical and impartial; and
  1. (c)
    show respect towards all persons, including employees, clients and the general public; and
  1. (d)
    acknowledge the primacy of the public interest and undertake that any conflict of interest issue will be resolved or appropriately managed in favour of the public interest; and
  1. (e)
    are committed to honest, fair and respectful engagement with the community.

[92] Mr Smith's further submissions, paras. 9-22.

[93] Section 10 of the Public Sector Ethics Act 1994 (which is contained in pt 4 of that Act which deals with the codes of conduct for public officials) provides:

10  Nature and purpose of codes

  1. (1)
    In recognition of the ethics principles and values for public service agencies, public sector entities and public officials, codes of conduct are to apply to those agencies, entities and officials in performing their official functions.
  1. (2)
    The purpose of a code is to provide standards of conduct for public service agencies, public sector entities and public officials consistent with the ethics principles and values.

[94] Mr Smith's further submissions, paras. 23-24.

[95] Mr Smith's further submissions, paras. 30-31.

[96] The further written submissions of the State of Queensland (Queensland Health) filed on 15 September 2023 ('the Department's further submissions') paras. 3-7.

[97] The Department's further submissions, paras. 8-13.

[98] The Department's further submissions, paras. 14-15. Emphasis in the original from the Department's further submissions.

[99] The Department's further submissions, para. 21.

[100] The Department's further submissions, para. 22.

[101] T 1-37, ll 38-40.

[102] The Department's further submissions, paras. 24-25.

[103] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel  CJ, Nettle and Gordon JJ).

[104] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).

[105] Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

[106] Exhibit 21, exhibit 'GB-12', pages 1176-1181 of the CB.

[107] Exhibit 21, exhibit 'GB-7', page 905 of the CB.

[108] Exhibit 21, exhibit 'GB-7', page 908, fourth paragraph of the CB.

[109] Exhibit 21, exhibit 'GB-6', para. 3.8 (a)-(c), page 870 of the CB and exhibit 'GB-7', page 907, second paragraph of the CB.

[110] Exhibit 21, exhibit 'GB-7', page 929 (Allegation One), page 939 (Allegation Two) and page 956 (Allegation Three) of the CB.

[111] Exhibit 21, para. 32.

[112] Etherton v Public Service Board [1983] 3 NSWLR 297 ('Etherton'), 303-305 (Hunt J), Robbins v Harness Racing Board [1984] VR 641, 645 (O'Bryan J) and Re Mullen [1995] 2 Qd R 608, 611-612 (Lee J). See also               JRS Forbes, Justice in Tribunals (The Federation Press, 2002) 117, namely:

A charge identifies the legal prohibition; particulars inform the person charged of the facts that are said to constitute the breach.

[113] Etherton (n 112), 304.

[114] Discipline (Directive 05/23), cl 9.3 b.

[115] Exhibit 10, exhibit 'HB8', page 813 of the CB.

[116] Exhibit 10, exhibit 'HB8', page 814 of the CB.

[117] Exhibit 10, exhibit 'HB8', page 814 of the CB.

[118] Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1, [37] (Gleeson CJ).

[119] Ibid [38].

[120] [2022] WASCA 94 (Buss, Murphy and Smith JJ).

[121] Citations omitted.

[122] Exhibit 21, exhibit 'GB-14', pages 1186-1191 of the CB.

[123] Exhibit 10, exhibit 'HB8', page 815 of the CB.

[124] Mr Smith's further submissions, paras. 33-49.

[125] The Department's further submissions, para. 27.

[126] The Department's further submissions, para. 39.

[127] The Department's further submissions, para. 40.

[128] The Department's further submissions, para. 41.

[129] The Department's further submissions, para. 42.

[130] Exhibit 24, para. 9.

[131] T 1-71, ll 6-7.

[132] Fox v Percy [2003] HCA 22; (2003) 214 CLR 118, [30]-[31] (Gleason CJ, Gummow and Kirby JJ).

[133] Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39, [34] (Keane JA, McMurdo J [64] and Douglas J [65] agreeing).

[134] [2019] FCA 496.

[135] Mr Smith's submissions, paras. 30-31 a., b. and c.

[136] Mr Smith's submissions, para. 26.

[137] Mr Smith's submissions, para. 33.

[138] Mr Smith's submissions, para. 34.

[139] Mr Smith's submissions, para. 35.

[140] Mr Smith's submissions, para. 36.

[141] Mr Smith's submissions, paras. 37-40.

[142] Exhibit 12, paras. 29-31.

[143] Exhibit 12, 'EM-04', page 293 of the CB.

[144] Mr Smith's submissions, paras. 41-48.

[145] Mr Smith's submissions, paras. 49-51.

[146] Mr Smith's submissions, paras. 52-54.

[147] Mr Smith's submissions, paras. 55-56.

[148] Mr Smith's submissions, paras. 57-75.

[149] The Department's submissions, para. 47.

[150] The Department's submissions, para. 48.

[151] The Department's submissions, para. 48.

[152] The Department's submissions, para. 49.

[153] The Department's submissions, para. 49.

[154] The Department's submissions, para. 50.

[155] The Department's submissions, para. 51.

[156] The Department's submissions, para. 53.

[157] The Department's submissions, para. 56.

[158] The Department's submissions, para. 56.

[159] The Department's submissions, para. 56.

[160] The Department's submissions, para. 57.

[161] The Department's submissions, para. 57.

[162] The Department's submissions, paras. 59-60.

[163] The Department's submissions, para. 61.

[164] The Department's submissions, para. 62.

[165] (1894) 6 R 67.

[166] Mr Smith's submissions in reply filed on 7 July 2023 ('Mr Smith's reply submissions'), paras. 29-39.

[167] Exhibit 12, paras. 24-29.

[168] Exhibit 21, exhibit 'GB-7', pages 972-973 of the CB.

[169] Exhibit 1, para. 16, page 93 of the CB.

[170] Exhibit 21, exhibit 'GB-7', page 1063 of the CB.

[171] T 1-38, l 31 to T 1-39, l 29.

[172] Exhibit 8, para. 9.

[173] Exhibit 21, exhibit 'GB-7', pages 1036-1037 of the CB.

[174] Exhibit 21, exhibit 'GB-7', page 1039 of the CB.

[175] Exhibit 21, exhibit 'GB-7', page 1040 of the CB.

[176] T 1-72, l 28 to T 1-73, l 43.

[177] Exhibit 21, exhibit 'GB-7', pages 1007-1008 of the CB.

[178] Exhibit 13, paras. 10-12 and T 3-9 to T 3-14.

[179] T 1-64, ll 18-25.

[180] See Exhibit 1, paras. 16 a. to e.

[181] T 1-4, ll 10-15.

[182] Exhibit 21, exhibit 'GB-7', page 1064 of the CB. My emphasis.

[183] Exhibit 8, para. 9 h.

[184] Exhibit 21, exhibit 'GB-7', page 1037 of the CB.

[185] T 1-78, ll 1-17.

[186] Exhibit 12, paras. 24-27.

[187] Exhibit 12, para. 28.

[188] Exhibit 12, para. 29.

[189] Exhibit 12, exhibit 'EM-03', page 281 of the CB.

[190] Exhibit 21, exhibit 'GB-7', pages 972-973.

[191] T 2-57, ll 1-8.

[192] T 1-39, ll 1-27.

[193] Exhibit 12, paras. 32-47.

[194] T 1-46, ll 4-5.

[195] T 1-75, ll 45-48.

[196] Exhibit 12, para. 34.

[197] Exhibit 12, exhibit 'EM-03', page 281 of the CB.

[198] Exhibit 21, exhibit 'GB-4', page 860 of the CB.

[199] Exhibit 21, exhibit 'GB-7', page 1065 of the CB.

[200] Exhibit 21, exhibit 'GB-7', page 1065 of the CB.

[201] Exhibit 12, para. 4.

[202] Exhibit 19, paras. 23-30.

[203] Exhibit 13, paras.17-18.

[204] Exhibit 14, paras. 20-28.

[205] Exhibit 15, paras. 14-22.

[206] [2023] QIRC 203.

[207] Citations omitted. This summary was recently adopted by Lee J in Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 [49].

[208] T 1-39, ll 1-32.

[209] T 1-40, l 11 to T 1-42, l 36.

[210] T 2-59, ll 10-11 and T 2-59, ll 28.

[211] Exhibit 9, exhibit 'AB2-3', pages 202-203 of the CB.

[212] Exhibit 1, paras. 16 c.- 16 e.

[213] Exhibit 8, paras. 9 f.- 9 i. and 9 k.

[214] Exhibit 12, paras. 47-49.

[215] Exhibit 19, para. 27.

[216] Exhibit 13, paras. 14-19.

[217] Exhibit 21, exhibit 'GB7', pages 1008-1009 of the CB.

[218] Exhibit 21, exhibit 'GB7', page 1064 of the CB.

[219] Exhibit 21, exhibit 'GB7', page 1041 of the CB.

[220] Exhibit 21, exhibit 'GB7', page 1021 of the CB.

[221] T 1-42, ll 6-21.

[222] T 1-78, ll 19-28.

[223] T 2-64, ll 40-44.

[224] T 2-67, ll 16-19.

[225] T 3-67, l 36 to T 3-68, l 3.

[226] Exhibit 8, para. 9 k..

[227] Mr Smith's submissions, paras. 76-81.

[228] Exhibit 20, exhibit 'TAB-14', page 1280 of the CB.

[229] See Exhibit 20, exhibit 'TAB-14', page 1280 of the CB.

[230] T 4-31, ll 31-32.

[231] T 4-30 l 15 to T 4-31, l 29.

[232] Exhibit 20, exhibit 'TAB-14', page 1281 of the CB.

[233] Exhibit 12, exhibit 'EM-03', page 281 of the CB.

[234] Exhibit 21, exhibit 'CB-7', page 975 of the CB.

[235] Exhibit 21, exhibit 'CB-7', page 976 of the CB.

[236] Exhibit 12, para. 40.

[237] Exhibit 12, para. 49.

[238] Exhibit 19, para. 32.

[239] Mr Smith's submissions, para. 31 d.

[240] Mr Smith's submissions, para. 94.

[241] Mr Smith's submissions, paras. 95-97.

[242] Mr Smith's submissions, paras. 97-101.

[243] Mr Smith's submissions, para. 104.

[244] Mr Smith's submissions, para. 105.

[245] Mr Smith's submissions, paras. 108-109.

[246] The Department's submissions, paras. 84-89.

[247] Exhibit 21, exhibit 'CB-7', pages 1009 -1010 of the CB.

[248] Exhibit 13.

[249] Exhibit 13, para. 26.

[250] Exhibit 1, paras. 16 e.- 16.f.

[251] Exhibit 2, exhibit 'PS2-3', page 217 of the CB.

[252] Exhibit 8, paras. 9 m.- n.

[253] T 3-43, ll 1-2.

[254] T 3-47, ll 14-17.

[255] Exhibit 13, paras. 7 and 13.

[256] Exhibit 1, para. 16 e.

[257] T 1-42, l 38 to T 1-43, l 18.

[258] Exhibit 1, para. 16 e.

[259] Exhibit 8, para. 9 n.

[260] Mr Smith's submissions, para. 115.

[261] Mr Smith's submissions, para. 116.

[262] Mr Smith's submissions, para. 117.

[263] Mr Smith's submissions, paras. 118 and 119.

[264] Mr Smith's submissions, para. 120.

[265] Mr Smith's submissions, para. 122.

[266] Mr Smith's submissions, paras. 123-124.

[267] Mr Smith's submissions, paras. 125-126.

[268] Mr Smith's submissions, para. 127.

[269] The Department's submissions, para. 103.

[270] The Department's submissions, para. 105.

[271] Exhibit 12, exhibit 'EM-03', page 282 of the CB.

[272] Exhibit 12, paras. 70-72.

[273] T 2-72, l 24 to T 2-73, l 9.

[274] Exhibit 12, para. 66.

[275] Exhibit 13, paras. 36-38.

[276] T 3-17, l 45.

[277] Exhibit 14, paras. 49-51.

[278] Exhibit 19, paras. 55-56.

[279] T 3-70, l 25 to T 3-71, l 12.

[280] Exhibit 1, para. 17.

[281] Exhibit 21, exhibit 'GB-7', pages 1080 of the CB.

[282] T 1-47, l 19 to T 1-48, l 26.

[283] Exhibit 8, para. 10. This paragraph of Ms Ballantine's first affidavit refers to 'low life scrum bag' which I assume is a spelling mistake.

[284] Exhibit 13, para. 24.

[285] T 3-6, l 4 to T 3-8, l 1.

[286] Exhibit 10, exhibit 'HB8', page 814 of the CB.

[287] Exhibit 12, para. 73.

[288] Exhibit 10, exhibit 'HB8', pages 810-817 of the CB.

[289] Exhibit 21, exhibit 'GB-15', page 1194.

[290] T 1-32, ll 7-19.

[291] Exhibit 21, exhibit 'GB-4', page 860 of the CB.

[292] Exhibit 24, exhibit 'RC8', pages 1490-1497 of the CB.

[293] Mr Smith' submissions, paras. 139-146.

[294] The Department's submissions, para. 144.

[295] The Department's submissions, paras. 145-150.

[296] Exhibit 10, exhibit 'HB8', page 816.

[297] [2021] ICQ 005. Citations omitted.

[298] Exhibit 21.

[299] Exhibit 24.

[300] Exhibit 21, exhibit 'GB-12', pages 1176-1181.

[301] Exhibit 10, exhibit 'HB8', pages 812.

[302] Exhibit 10, exhibit 'HB8', pages 815-816.

[303] The Department's submissions, paras. 146.

[304] T 4-47, ll 15-20.

[305] T 4-64, ll 27-29.

[306] T 4-51, l 48 to T 4-52, l 4.

[307] The Department's submissions, paras. 146.

[308] T 4-51, l 23 to T 4-52, l 10.

[309] The Department's submissions, paras. 149.

[310] T 5-50, ll 18-35.

[311] Exhibit 21, para. 30.

[312] Exhibit 21, exhibit 'GB-7', pages 908-909 of the CB.

[313] Smith v State of Queensland (Queensland Health) and Anor [2021] QIRC 340, [8] (Industrial Commissioner Power).

[314] Mr Smith's submissions, para. 166.

[315] Mr Smith's submissions, paras. 69-70.

[316] The Department's submissions, para. 111.

[317] See the Department's submissions, para. 145.

[318] Carey v President of the Industrial Court of Queensland [2004] QCA 62; (2004) 2 Qd R 359, [16] (McPherson JA, with Davies JA at [28] and  Mackenzie J at [29] agreeing).

[319] Mr Smith's reply submissions, para. 89.

[320] Mr Smith's reply submissions, para. 90.

[321] Mr Smith's submissions, para. 169.

[322] The Department's submissions, para. 152.

[323] The Department's submissions, para. 153.

[324] The Department's submissions, para. 154.

[325] The Department's submissions, paras. 155-158.

[326] The Department's submissions, paras. 159-160.

[327] [1994] IRCA 43; (1994) 57 IR 50, 61 (Wilcox CJ).

[328] [2000] QIC 65; (2000) 165 QGIG 767, 769.

[329] [2014] FWCFB 7198.

[330] Justice Ross, President, Deputy President Gostencnik and Commissioner Wilson

[331] Citations omitted.

[332] White (n 14).

[333] The Department submissions, para. 154(d).

[334] T 2-21, ll 4-9.

[335] Exhibit 21, exhibit 'GB-14', page 1186 of the CB.

[336] Exhibit 1, exhibit 'PS-11' page 142 of the CB.

Close

Editorial Notes

  • Published Case Name:

    Smith v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Smith v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 296

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    13 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
Abbott-Etherington v Houghton Motors Pty Ltd (1995) 63 IR 394
1 citation
Jump To
Cite 1 - (1995) 63 IR 394
Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 28
2 citations
Jump To
Cite 1 - [2016] QIRC 28
Cite 2 - [2016] QIRC 28
Allied Pastoral Holdings P/L v Federal Commissioner of Taxation (1983) 44 ALR 607
2 citations
Jump To
Cite 1 - (1983) 44 ALR 607
Cite 2 - (1983) 44 ALR 607
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Browne v Dunn (1894) 6 R 67
4 citations
Jump To
Cite 1 - (1894) 6 R 67
Cite 2 - (1894) 6 R 67
Cite 3 - (1894) 6 R 67
Cite 4 - (1894) 6 R 67
Bulstrode v Trimble [1970] VR 840
1 citation
Jump To
Cite 1 - [1970] VR 840
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Camden v McKenzie[2008] 1 Qd R 39; [2007] QCA 136
4 citations
Jump To
Cite 1 - [2007] QCA 136
Cite 2 - [2007] QCA 136
Cite 3 - [2008] 1 Qd R 39
Cite 4 - [2008] 1 Qd R 39
Carey v President of the Industrial Court Queensland[2004] 2 Qd R 359; [2004] QCA 62
4 citations
Jump To
Cite 1 - [2004] QCA 62
Cite 2 - [2004] QCA 62
Cite 3 - [2004] 2 Qd R 359
Cite 4 - [2004] 2 Qd R 359
Commissioner of Taxation (Cth) v Consolidated Media Holdings Ltd (2012) 250 CLR 503
2 citations
Jump To
Cite 1 - (2012) 250 CLR 503
Cite 2 - (2012) 250 CLR 503
Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297
2 citations
Jump To
Cite 1 - [1983] 3 NSWLR 297
Cite 2 - [1983] 3 NSWLR 297
Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55
2 citations
Jump To
Cite 1 - [2012] HCA 55
Cite 2 - [2012] HCA 55
Fox v Percy (2003) 214 CLR 118
2 citations
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Cite 1 - (2003) 214 CLR 118
Cite 2 - (2003) 214 CLR 118
Fox v Percy (2003) HCA 22
2 citations
Jump To
Cite 1 - (2003) HCA 22
Cite 2 - (2003) HCA 22
G v H (1994) 181 CLR 387
2 citations
Jump To
Cite 1 - (1994) 181 CLR 387
Cite 2 - (1994) 181 CLR 387
G v H [1994] HCA 48
2 citations
Jump To
Cite 1 - [1994] HCA 48
Cite 2 - [1994] HCA 48
Gold Coast District Health Service v Walker [2001] QIC 63
2 citations
Jump To
Cite 1 - [2001] QIC 63
Cite 2 - [2001] QIC 63
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Jagelman v FCT (1995) 31 ATR 467
1 citation
Jump To
Cite 1 - (1995) 31 ATR 467
Karidis v General Motors-Holdens [1971] SASR 422
1 citation
Jump To
Cite 1 - [1971] SASR 422
Lam v Gold Coast Hospital and Health Service [2021] ICQ 10
2 citations
Jump To
Cite 1 - [2021] ICQ 10
Cite 2 - [2021] ICQ 10
Liddell v Lembke (1994) 1 IRCR 466
1 citation
Jump To
Cite 1 - (1994) 1 IRCR 466
Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94
2 citations
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Cite 1 - [2022] WASCA 94
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Marchant v Workers' Compensation Regulator [2023] QIRC 203
2 citations
Jump To
Cite 1 - [2023] QIRC 203
Cite 2 - [2023] QIRC 203
Minister for Immigration and Multicultural Affairs, Re; Ex parte Lam (2003) 214 CLR 1
2 citations
Jump To
Cite 1 - (2003) 214 CLR 1
Cite 2 - (2003) 214 CLR 1
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) HCA 66
2 citations
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Cite 1 - (1992) HCA 66
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Nesbit v Metro North Hospital and Health Service [2021] ICQ 5
2 citations
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Cite 2 - [2021] ICQ 5
Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198
2 citations
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Cite 2 - [2014] FWCFB 7198
Nicholson v Heaven and Earth Gallery Pty Ltd [1994] IRCA 43
2 citations
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Cite 1 - [1994] IRCA 43
Cite 2 - [1994] IRCA 43
Nicolson v Heaven and Earth Gallery (1994) 57 IR 50
2 citations
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Cite 1 - (1994) 57 IR 50
Cite 2 - (1994) 57 IR 50
Perkins v Grace Worldwide (Aust) Pty Ltd (1997) 72 IR 186
1 citation
Jump To
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Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767
2 citations
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Cite 1 - (2000) 165 QGIG 767
Cite 2 - (2000) 165 QGIG 767
Queensland Teachers Union of Employees v Department of Education [2000] QIC 65
2 citations
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Cite 1 - [2000] QIC 65
Cite 2 - [2000] QIC 65
R v A2 [2019] HCA 35
2 citations
Jump To
Cite 1 - [2019] HCA 35
Cite 2 - [2019] HCA 35
R v A2 (2019) 269 CLR 507
2 citations
Jump To
Cite 1 - (2019) 269 CLR 507
Cite 2 - (2019) 269 CLR 507
Raben Footwear Pty Ltd v Polygram Records Inc (1997) 145 ALR 1
1 citation
Jump To
Cite 1 - (1997) 145 ALR 1
Re Minister for Immigration and Multicultural Affairs; Ex parte Lam [2003] HCA 6
2 citations
Jump To
Cite 1 - [2003] HCA 6
Cite 2 - [2003] HCA 6
Re Mullen[1995] 2 Qd R 608; [1995] QSC 70
2 citations
Jump To
Cite 1 - [1995] 2 Qd R 608
Cite 2 - [1995] 2 Qd R 608
Robbins v Harness Racing Board [1984] VR 641
2 citations
Jump To
Cite 1 - [1984] VR 641
Cite 2 - [1984] VR 641
Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496
2 citations
Jump To
Cite 1 - [2019] FCA 496
Cite 2 - [2019] FCA 496
Seymour v Australian Broadcasting Commission (1977) 19 NSWLR 219
1 citation
Jump To
Cite 1 - (1977) 19 NSWLR 219
Smith v State of Queensland (Queensland Health) & Anor [2021] QIRC 340
2 citations
Jump To
Cite 1 - [2021] QIRC 340
Cite 2 - [2021] QIRC 340
Societe d'Avances Commerciales (Societe Anonyme Egyptienne) v Merchants' Marine Insurance Co. (The Palitana) (1924) 20 Ll L Rep 140
1 citation
Jump To
Cite 1 - (1924) 20 Ll L Rep 140
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
2 citations
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Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
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Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
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Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34
Transport Workers ’ Union of Australia v Qantas Airways Ltd (2021) 308 IR 244
2 citations
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Cite 1 - (2021) 308 IR 244
Cite 2 - (2021) 308 IR 244
Transport Workers' Union of Australia v Qantas Airways Ltd [2021] FCA 873
2 citations
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Cite 1 - [2021] FCA 873
Cite 2 - [2021] FCA 873
White Industries (Qld) Pty Ltd v Flower & Hart (a firm) (1988) 156 ALR 169
5 citations
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Cite 2 - (1988) 156 ALR 169
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Cite 4 - (1988) 156 ALR 169
Cite 5 - (1988) 156 ALR 169
White v Queensland [2017] QIRC 41
2 citations
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Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41

Cases Citing

Case NameFull CitationFrequency
Donaldson v TAFE Queensland [2025] QIRC 1463 citations
Leigh v State of Queensland (Department of Education) [2025] QIRC 232 citations
Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2) [2025] QIRC 282 citations
Smith v State of Queensland (Queensland Health) [2024] ICQ 192 citations
Smith v State of Queensland (Queensland Health) (No 2) [2024] QIRC 212 citations
Together Queensland, Industrial Union of Employees v State of Queensland (Queensland Health) and Anor [2024] QIRC 202 citations
1

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