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  4. McNeil v State of Queensland (Electoral Commission of Queensland) - [2023] QIRC 308

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McNeil v State of Queensland (Electoral Commission of Queensland)[2023] QIRC 308

McNeil v State of Queensland (Electoral Commission of Queensland)[2023] QIRC 308

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308

PARTIES:

McNeil, Moira

(Appellant)

v

State of Queensland (Electoral Commission of Queensland)

(Respondent)

CASE NO:

PSA/2023/69

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

23 October 2023

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562A of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a fair treatment decision – where appellant lodged a grievance in accordance with Directive 11/20 – Individual employee grievances – where allegations that were the subject of the grievance were unsubstantiated – where appellant requested an internal review of the finding – where allegations that were the subject of the grievance could not be substantiated on the balance of probabilities – consideration of whether to hear the appeal – where there are compelling reasons to not hear the appeal 

LEGISLATION AND OTHER INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld) s 10, s 119, s 164A

Industrial Relations Act 2016 (Qld) s 562A, s 562B, s 562C

Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32

Code of Conduct for the Queensland Public Service

Directive 11/20 - Individual employee grievances cl 8

Directive 17/20 – Workplace investigations cl 6, cl 9

CASES:

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

Reasons for Decision

Background

  1. [1]
    Ms Moira McNeil is employed as a Senior Elections Officer by the Electoral Commission of Queensland ('the Respondent') within the Data Insights and Spatial Team ('the team').
  1. [2]
    The team has three members, namely Ms McNeil, Dr Yan Liu and another colleague. According to Ms McNeil, the team has 'worked closely for over 8 years with well-established work relationships built on trust, respect, free of any performance, conduct issues or controversy'.[1] 
  1. [3]
    Mr Pat Healy commenced his role as supervisor of the team in February 2022.
  1. [4]
    At some stage over the ensuing months following Mr Healy's commencement, Dr Liu lodged an application for workers' compensation. As a consequence of her injury, Dr Liu was absent for approximately one month.[2] The details of the claim are not before the Commission save for the fact that the claim arises in the context of conduct of Mr Healy, and that the claim was accepted in or about the middle of October 2022.
  1. [5]
    Significantly, in respect of Dr Liu's claim, Ms McNeil provided a statement to WorkCover Queensland ('WorkCover') in support of the claim[3] and also provided Dr Liu with personal support while her claim was being processed.[4]
  1. [6]
    On 28 October 2022, Ms McNeil posted two GIFs in the team's group chat (including Mr Healy). The message accompanying them was a birthday salutation to Dr Liu. The GIFs that Ms McNeil posted were of a cupcake and a calendar with a message saying, 'A birthday is like a new year…'.
  1. [7]
    Shortly thereafter Mr Healy sent a message to all of the members of the team. The message included 'Happy Birthday Yan [smiling emoji]' and was accompanied by an animated GIF. The GIF depicted a (computer generated) clip of an orangutan dancing.
  1. [8]
    Ms McNeil was immediately concerned about the impact the GIF would have on Dr Liu. Ms McNeil was offended by the GIF which she considered both racist and sexually inappropriate. Ms McNeil subsequently took her complaint to Ms Flewell-Smith, a human resources officer employed by the Respondent.
  1. [9]
    During the initial conversation between them, it seems that Ms Flewell-Smith struggled to immediately appreciate how the GIF was either racist or sexually inappropriate. Accordingly, Ms Flewell-Smith asked Ms McNeil some questions to better understand the complaint including whether she would have been offended by the GIF if it had been sent by someone other than Mr Healy. Ms Flewell-Smith also indicated she would not require a complaint in writing and would address the matter directly with Mr Healy.
  1. [10]
    Ms McNeil considered that these responses from Ms Flewell-Smith were 'judgmental' and 'lacked objectivity and empathy'. Ms McNeil also complained that she was discouraged from putting her complaint in writing.
  1. [11]
    Consequently, on 31 October 2022, Ms McNeil lodged a grievance in accordance with Directive 11/20 - Individual employee grievances. The salient portions of the grievance read:[5]

''Dear Human Resources,

I am writing to lodge a formal complaint about an objectionable and offensive post circulated to members of the Spatial Team of ECQ on Microsoft Teams.

On Friday 28 October 2022 at 7:55am my Team Leader Pat Healey sent a Happy Birthday message to my team member Yan Liu. The animated graphic that was attached to the birthday greeting demonstrated objectionable behaviour, including unacceptable direct and indirect racist and sexual innuendo overtones.

The animated graphic is an orangutangs dancing in a sexually provocative (or pornographic) manner.

The message was distressing, I am shocked and deeply offended personally. I was immediately extremely anxious and concerned for the feelings of my colleague Yan, the target of the group message. The distributed graphic sent on Microsoft Teams is inappropriate and unsuitable in any workplace, and completely unacceptable to consider sending to a female subordinate, particularly to a person of Asian descent.

Through our training on the Code of Conduct for the Queensland Public Service and anti-discrimination most of us know the power of racism, and that calling a person an ape is racist with direct cogitations to evolutionary theories and the suggestion people of non-European origin are more like apes than humans.''

  1. [12]
    The grievance also contained a grievance against Ms Flewell-Smith that relevantly alleged:[6]

''[…] I was disturbed, troubled and upset to be advised by the HR representative that people have ''different tolerances'', suggesting I am too sensitive.

…

The HR representative questioned if I was offended by the sender, and if I would still be offended if the graphic was sent by another colleague.

That view does not uphold the required non-judgmental listening to my concern, of acceptance, objectivity, understanding, genuineness, and empathy. These core conditions are necessary for HR to demonstrate to create a safe, comfortable environment in which a person can speak openly. ''

  1. [13]
    No formal complaint has ever been made by Dr Liu about the GIF.
  1. [14]
    On 7 November 2022, the Respondent engaged an independent investigator from McGrathNicol ('the investigator') to investigate the allegations that were the subject of Ms McNeil's grievance. The investigator interviewed Ms McNeil, Dr Liu, their other colleague and Mr Healy regarding the GIF. The investigator also interviewed Ms McNeil and Ms Flewell-Smith in respect of the complaint made about Ms Flewell-Smith.
  1. [15]
    The investigator's report concluded that the allegations were not capable of being substantiated.
  1. [16]
    On 9 February 2023, Mr Damien Parker, Director, Corporate Services, made a decision in respect of Ms McNeil's grievance that effectively adopted the findings of the investigator.
  1. [17]
    Ms McNeil subsequently applied for an internal review of Mr Parker's decision on 22 February 2023. The grounds for the internal review were extensively set out across ten pages of correspondence dated 22 February 2023 and were, in essence, all assertions of technical or procedural failings by Mr Parker or the investigator.[7]
  1. [18]
    On 24 March 2023, the internal review decision was made by the Electoral Commissioner, Mr Pat Vidgen. Mr Vidgen determined to set aside Mr Parker's decision because of inter alia a lack of adequate reasons.  A substituted decision was made by Mr Vidgen that the allegations the subject of Ms McNeil's grievance could not be substantiated on the balance of probabilities ('the decision'). The decision contained extensive reasons.
  1. [19]
    Ms McNeil now appeals the decision. The grounds of this appeal set out in the Appeal Notice filed on 13 April 2023 relevantly state:

“I believe the decision made on my grievance by Mr Vidgen on 24 March 2023 is unfair and unreasonable and is made contrary to section 9.2(d) of Directive 11/20: Individual employee grievances as I believe the decision lacked an evident and intelligible justification from the facts and relied on the investigator's opinion, and not relevant facts, to determine on the balance of probabilities contrary to section 6.7(b) of Directive 17/20 Workplace investigations.”

Section 562A of the Industrial Relations Act 2016 (Qld)

  1. [20]
    The matter was mentioned before the Commission on 23 April 2023. At the mention Ms McNeil was informed by the Commission that, having regard to the subject matter of the appeal, a preliminary view had been formed that the cause was trivial. It was explained at that time to Ms McNeil that the Commission, being aware of the circumstances, did not consider the GIF to be offensive for the reasons alleged or at all.[8] In those circumstances, consideration was being given to exercising the discretion under s 562A of the Industrial Relations Act 2016 (Qld) ('the IR Act') to not hear the appeal.
  1. [21]
    As required under s 562A of the IR Act, Ms McNeil was invited to provide submissions outlining why she has an arguable case for the appeal.[9] Directions to that effect were issued on 4 May 2023 and the parties subsequently filed submissions.
  1. [22]
    The following reasons set out the Commission's consideration with respect to the exercise of its discretion pursuant to s 562A.

Relevant legislation

  1. [23]
    Chapter 11 of the IR Act gives the Commission jurisdiction to determine public service appeals.[10] Section 562B of the IR Act provides that these appeals are conducted by way of a review of the decision appealed against.[11]
  1. [24]
    Of particular relevance to this matter it is noted that a review of a decision is not a rehearing of the matter on its merits e.g. like a hearing de novo.  The singular function of the Commission is to decide if the decision was fair and reasonable.[12]
  1. [25]
    Section 562A of the IR Act provides:

562A Commission may decide not to hear particular public service appeals

  1. …
  1. …
  1. The commission may decide it will not hear a public service appeal against a decision if—
  1. the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
  1. the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
  1. is frivolous or vexatious; or
  1. is misconceived or lacks substance; or
  1. should not be heard for another compelling reason.

(Emphasis added)

Ms McNeil's submissions

  1. [26]
    Ms McNeil submits that the Respondent did not discuss her grievance with her, nor did it seek any clarification pursuant to cl 8.1 of Directive 17/20 – Workplace investigations or cl 9.1(b) of Directive 11/20 - Individual employee grievances.
  1. [27]
    Ms McNeil says that as part of her interview for the purposes of the investigation, she identified relevant facts that ought to be considered and identified witnesses that could corroborate these facts or make other relevant statements. Ms McNeil contends that there is no evidence that the witnesses put forward by her were interviewed. 
  1. [28]
    Ms McNeil submits that in making the decision, the decision maker erroneously relied on the investigator's findings to effectively act as the decision maker in respect of the grievance and make findings on the balance of probabilities. Ms McNeil says this is contrary to cl 6.7(b) of Directive 17/20 – Workplace investigations, which relevantly states:

''The findings of an investigation:

  1. are not binding on the chief executive.
  2. are not evidence that can be relied upon by the chief executive. The chief executive may only rely on the evidence that has informed the findings.''
  1. [29]
    In respect of provisions of the Anti-Discrimination Act 1991 (Qld) ('AD Act') pertaining to racial discrimination and sexual harassment, Ms McNeil submits that the decision is unreasonable in that it:
  • did not give appropriate weight to evidence that Mr Healy discriminated against Dr Liu; and
  • relied upon Mr Healy's motivations behind sending the GIF to Dr Liu.
  1. [30]
    Ms McNeil submits that the decision did not give appropriate weight to the fact that all recipients of Mr Healy's message and the accompanying GIF (i.e. the three members of the team) considered it to be racist, offensive or otherwise inappropriate in a workplace setting.
  1. [31]
    Ms McNeil submits that it was unreasonable for the decision maker to expect her to approach Mr Healy directly with her concerns in circumstances where she was uncomfortable in doing so and where she considered his behaviour may have been unlawful.
  1. [32]
    Ms McNeil closes her submissions by contending that her concerns could have been resolved earlier had human resources not been 'outwardly dismissive and deflective, downplaying the need to respond'. Ms McNeil says her interactions with human resources afforded her no confidence that her concerns would be dealt with unless she put them in writing by way of a grievance.

The Respondent's submissions

  1. [33]
    The Respondent opens its submissions by contending that the decision was fair and reasonable and Ms McNeil has not demonstrated that she has an arguable case in this appeal. In the circumstances, the Respondent submits that the Commission ought to exercise its discretion under s 562A and not hear the appeal.
  1. [34]
    In response to Ms McNeil's submissions, the Respondent submits (in summary):
  • that neither cl 8.1 of Directive 17/20 – Workplace investigations nor cl 9.1(b) of Directive 11/20 - Individual employee grievances support her argument;
  • it was a matter for the investigator, not Ms McNeil, to decide witnesses relevant to the investigation;
  • the decision maker made an independent, objective finding after having given proper and thorough consideration to all of the relevant material, including the evidence of witnesses; and
  • the decision maker's consideration of Mr Healy's intention for sending the GIF was not unreasonable.

Ms McNeil's reply submissions

  1. [35]
    Ms McNeil was given an opportunity to reply to the submissions of the Respondent and did so on 12 July 2023. In her reply submissions, Ms McNeil points to various errors of facts and law identified in the submissions of the Respondent. In summary, Ms McNeil submits: 
  • the Respondent misrepresented the scope of the grievance in its submissions. The grievance, Ms McNeil says, is not solely in respect of the GIF, and extends to concerns of bullying and racial vilification;
  • the decision maker failed to hear from all relevant parties contrary to its obligation under cl 8.2(c) of Directive 17/20 – Workplace investigations;
  • the decision maker failed to consider all of the relevant facts, namely the WorkCover claim; and
  • the effect of s 10(3) of the AD Act means that Mr Healy's motivations for sending the GIF is irrelevant and ought not to have been considered by the decision maker.

Consideration

Circumstances of the appeal

  1. [36]
    It is regrettable that a controversy surrounding a single email containing a birthday message has been able consume countless public sector working hours, thousands of taxpayer dollars in lost productivity and fees for the investigation and now, many hours of the limited and valuable resources of this Commission. It is a testament to the inefficiencies created by the layers of policies and directives in which the public service is mired that this great waste of time and money has been able to occur.
  1. [37]
    With each of the numerous layers of complaint and review available to her, Ms McNeil's original complaint has expanded to become more and more elaborate. What started as a complaint to Ms Flewell-Smith about the GIF then became a grievance about the GIF and Ms Flewell-Smith. The grievance triggered an independent investigation into the GIF and Ms Flewell-Smith, which in turn lead to the decision by Mr Parker. The decision of Mr Parker then triggered an internal review to Mr Vidgen about Mr Parker's decision about the complaint about the GIF and Ms Flewell-Smith but also, it now contained complaints about the investigator. Mr Vidgen's internal review decision then produced an appeal of his decision about Mr Parker's decision about the grievance about the complaint about the GIF and Ms Flewell-Smith and the investigator. 
  1. [38]
    This comical (but accurate) description of the journey of Ms McNeil's complaint reveals just how many opportunities she has legitimately had available to her to press the same complaint about the GIF over and over and over again.
  1. [39]
    With each rejection of her complaint about the GIF, Ms McNeil responds with ever expanding, increasingly fervent arguments citing multiple reasons purporting to show why (she says) each decision maker fell into error. All of these cited reasons are of a technical or procedural nature e.g. failure to speak to witnesses or to comply with a directive.
  1. [40]
    It seems entirely beyond the scope of Ms McNeil's capacity to contemplate that each decision maker or the investigator might have objectively and independently concluded that the conduct of Mr Healy was simply not offensive. According to Ms McNeil, every one of the four individuals who have separately considered her complaint are wrong, and the reasons why they are all wrong expand with each elevation of her complaint.
  1. [41]
    The first to consider the complaint was Ms Flewell-Smith. She did not immediately accept the GIF was offensive.[13] Then, for doing no more than attempting to seek better understanding, and for reality testing Ms McNeil's perceptions, Ms Flewell-Smith became the subject of a separate complaint by Ms McNeil.
  1. [42]
    It must be noted that Ms Flewell-Smith's initial reaction was not only reasonable, but it was an entirely proper exercise of her professional functions. It is not the role of human resources professionals to simply accept and process a complaint. Before formalising or elevating a matter it is appropriate to ask questions, including some that might challenge or confront a party making the complaint. This is especially important where the subject matter of a complaint does not objectively or immediately reveal any wrongdoing.
  1. [43]
    The questions Ms Flewell-Smith asked were entirely proper in the circumstances and her inclusion by Ms McNeil in this complaint (for simply doing her job) speaks volumes about Ms McNeil's troubling lack of insight into the role of human resources professionals and her incapacity to be objective. 
  1. [44]
    Following the lodging of her grievance Ms McNeil then had the benefit of an independent investigation into her complaints. Ms McNeil had full access to the investigator at an interview and was able to comprehensively explain the basis for her complaint. Further, the transcript of Ms McNeil's interview plainly reveals that the investigator fully understood the basis upon which Ms McNeil was complaining.[14]
  1. [45]
    While the investigator understood the complaints, the investigation concluded that they were not substantiated. Ms McNeil complains inter alia that the investigator did not speak to certain witnesses that she had nominated. This is addressed in more detail below but suffice is to say at this time that it is not for Ms McNeil to decide who is and who is not relevant to the investigation of her complaint. In any event, it is concluded below that there was no such failing by the investigator.
  1. [46]
    Having the benefit of the investigator's findings the matter then progressed to Mr Parker.  Mr Parker relied on the investigation findings in coming to his decision, though Ms McNeil then contended (in a 10-page request for internal review) inter alia that Mr Parker erred in a multitude of ways, including non-compliance with directives, etc.[15]
  2. [47]
    The matter was then elevated to Mr Vidgen to consider. Mr Vidgen's decision identifies errors by Mr Parker. Mr Vidgen issues an entirely fresh decision. That in itself is indicative of the independent nature of his internal review and the diligence with which he applied himself.  Though not according to Ms McNeil because, yet again, there is no support for her complaint about the GIF or a decision condemning Mr Healy.
  1. [48]
    And now there is this appeal.
  1. [49]
    At this point in the process the original complaint of Ms McNeil about the GIF is almost wholly consumed into an ever-widening array of complaints about the handling of her complaint. These extend to assertions of non-compliance with directives, failures by the investigator to speak to nominated witnesses or consider evidence, failures by the decision makers to reach a decision independently, and a failure to consider Mr Healy's conduct in the context of provisions of the AD Act to name only some.
  1. [50]
    Notwithstanding the great volumes of submissions filed in this matter (which attach numerous policies, articles, Codes of Conduct and directives) it is apparent they are all put before the Commission by Ms McNeil in support of her primary assertion that the conduct of Mr Healy was objectively offensive. The bulk of the material purports to point to shortcomings of the process undertaken by each of the individuals who investigated or made a decision about Ms McNeil's complaint, and why they each got it wrong.  It is on this basis that Ms McNeil says the decision under review is unfair and unreasonable.
  1. [51]
    Having regard to the material, it is obvious that Ms McNeil is labouring under a number of significant misconceptions, hence the contemplation of the discretion under s 562A of the IR Act. 

Observation about the GIF

  1. [52]
    Before dealing with the matters relevant to the exercise of the discretion available under s 562A of the IR Act, it will be necessary to consider whether the GIF is offensive in the manner asserted by Ms McNeil or at all.
  1. [53]
    Ms McNeil's personal feelings about the conduct of Mr Healy are not in doubt. It is accepted that Ms McNeil genuinely perceives that the GIF sent by Mr Healy was racist and sexually inappropriate. But the triggering of personal outrage is not the test for whether conduct is objectively offensive.
  1. [54]
    It should also be noted that the Commission broadly accepts the premise upon which Ms McNeil's assertions about the GIF are based. References and images of primates as racist caricatures of persons of e.g. African or Asian extraction are well documented historically. But the mere inclusion of an image of an orangutan in an electronic message to a person of Asian ethnicity cannot, of itself, lead to a conclusion that such conduct is inherently racist.
  2. [55]
    Images of primates per se are not immediately open to characterisation as racist. In the common experience of such racial slurs, a reference to or image of a primate will include  additional factors evoking an inference that prompts the listener or viewer to make a link between the primate reference and race. On some occasions this form of racism will be overt e.g. where a person of African or Indigenous extraction is directly referred to as an ape.[16] In other circumstances the simian allusion might be more subtle e.g. in the form of a cartoon depicting a character with a discreet blend of racially unique physical traits and primate characteristics.[17]
  1. [56]
    In every case, consideration of the context is critical to achieve an accurate and objective evaluation of the impugned conduct.
  1. [57]
    The parties in this appeal have had an opportunity to put the relevant factual context before the Commission. Indeed, Ms McNeil was specifically invited during her interview with the investigator to identify any contextual conduct by Mr Healy that might aid in the racist characterisation of his message. She provided nothing.[18] 
  1. [58]
    The relevant facts are uncontroversial. In summary: Mr Healy sent an electronic message to Dr Liu within a group communication. The content was a 'happy birthday' message and it was accompanied by a GIF that depicted a dancing orangutan. The GIF in question was a stock image contained within the electronic messaging system operated by the Respondent. Indeed, it is a GIF that is quite ubiquitous in most messaging systems. It was not created or altered in any way by Mr Healy. It was sent by Mr Healy in the context of other birthday messages originally initiated by Ms McNeil only minutes earlier.[19]
  1. [59]
    Noting the uncontroversial facts it is not difficult to understand Ms Flewell-Smith's initial reaction, or to see how the investigator's conclusion was open to them. While it is true that Dr Liu is Asian and that orangutans are primates found in Asian countries, in the view of the Commission there is nothing about the context in which Mr Healy sent the GIF that links these facts in a way that would cause an objective observer to conclude that Mr Healy's birthday wishes to Dr Liu could reasonably be interpreted as a racial slur.  The opinions of Ms McNeil's co-workers about the GIF are not the test for an objective evaluation of Mr Healy's conduct. 
  1. [60]
    For completeness, the Commission does not consider that the GIF was sexually inappropriate either. The GIF depicts a computer-generated image of an orangutan dancing. Some of the dance moves depicted in the clip might be regarded as mildly risqué to more conservative individuals, but not to the point of being objectively offensive.
  1. [61]
    While the GIF might conjure sexually provocative themes in the mind of Ms McNeil, that is a feature of her unique perception which is informed by her personal values, experiences, and bias. That is not the test of whether something is objectively offensive.
  1. [62]
    In the view of the Commission, the GIF is not sexually provocative. It would require something well beyond a stretch of the imagination for the GIF to produce a conclusion in the mind of a reasonable person that the dance moves 'performed' by an orangutan would possibly offend Dr Liu or other recipients in the way contemplated by s 119 of the AD Act.
  1. [63]
    The complained of conduct of Mr Healy is patently innocuous. It is this conclusion that evokes the consideration of the discretion pursuant to s 562A of the IR Act.

Section 562A considerations

  1. [64]
    Section 562A(3) of the IR Act grants the Commission a discretion to not deal with a public service appeal in circumstances where the Commission reasonably believes inter alia that the appeal should not be heard for 'another compelling reason'.
  1. [65]
    Ms McNeil's complaint that the GIF was both racist and sexually inappropriate is plainly unsustainable. Upon reaching this conclusion it then becomes clear that every other argument made by Ms McNeil in this appeal relates to alleged procedural or technical errors in handling that complaint.
  1. [66]
    When one appreciates the fundamentally misconceived nature of the original complaint, there is a palpable futility in proceeding, item by item, through these remaining areas of controversy raised by Ms McNeil.  That is to say, no matter how many oversights or errors might be proven to have occurred, proving them would never have the consequence of re-characterising Mr Healy's plainly innocuous actions into e.g. a breach of the Code of Conduct.
  1. [67]
    Pursuit of the appeal merely to pedantically prove that there were technical failures to e.g. comply with directives is the epitome of a trivial cause.
  1. [68]
    The function of the Commission is to review a decision to determine whether it is fair and reasonable.[20] While a failure to comply with an applicable directive might have the capacity to render a decision unfair or unreasonable in a particular set of circumstances, it is equally true that it may only amount to a technical defect in the process that otherwise produces no unfairness. A failure to conform with a directive will not, of itself, render a decision unfair and unreasonable.
  1. [69]
    Despite this very compelling reason to not hear the appeal, it is still necessary to dispense with some of the technical or procedural errors referred to by Ms McNeil because some of her submissions allude to defects in the process that are ostensibly serious. In fairness to Ms McNeil these matters warrant some brief consideration.
  1. [70]
    Without particular precision or priority the Commission notes the most significant of those matters are (broadly):
  1. that the investigator failed to speak with relevant witnesses; and
  1. that the decision maker failed to 'identify and apply' the relevant thresholds under the AD Act.

i.  Other witnesses

  1. [71]
    It appears that the investigator spoke to Ms McNeil, Dr Liu, Mr Healy and the other colleague who received the GIF, and also to Ms Flewell-Smith. In the absence of any broader relevant facts alleged by Ms McNeil, in the Commission's view, these are all of the witnesses material to the allegations.
  1. [72]
    Ms McNeil has contended that the investigator's conclusions were flawed because they failed to speak to witnesses she had nominated. The record of interview reveals the witnesses referred to by Ms McNeil appear to be two managers, namely Mr William Huey and Mr Peter McGraw and a female employee who she refused to name.[21]
  1. [73]
    The extent of the 'evidence' these witnesses could offer would appear to be that, shortly after the incident, they were approached by Ms McNeil for their opinions on the appropriateness of the GIF.[22] The fact that Ms McNeil has spoken to colleagues about her perspective and garnered their support does not make the opinions of those colleagues relevant to an objective evaluation of Mr Healy's conduct.
  1. [74]
    Further, it is impossible to ascertain to what extent those colleague's opinions were informed or influenced by Ms McNeil's representations that solicited them. The entire point of an independent investigation is independence i.e. objective consideration of the relevant conduct that is free of conscious or subconscious bias that might impair perspective.
  1. [75]
    In the Commission's view there is no evidence to suggest that speaking to these additional witnesses nominated by Ms McNeil would have added any merit to her complaint or produced a different conclusion about the conduct of Mr Healy. The opinions of Mr Huey and Mr McGraw are in no way directly relevant to an independent and objective evaluation of Mr Healy's conduct. An independent and objective conclusion is not reached by a 'majority vote' of Ms McNeil's colleagues.
  1. [76]
    The alleged 'failure' of the investigator and the other decision makers to have regard to the opinions of Ms McNeil's nominated witnesses in no way undermines the validity of the conclusions they each have reached. In those circumstances this aspect of Ms McNeil's appeal does not warrant further consideration.

  ii.  Failure to 'identify and apply the AD Act'

  1. [77]
    Ms McNeil has complained that the decisions are flawed because they failed to 'identify and apply' the relevant thresholds under the AD Act. The first observation that needs to be made about this is that Mr Vidgen both identified and applied the AD Act in the decision under review.[23] The problem, it seems, is that Mr Vidgen did not apply it in the way Ms McNeil wanted it applied.
  1. [78]
    In any event, while the Bullying, Sexual Harassment, and Discrimination policy ('the policy') cites the AD Act as part of its 'framework'[24] it does not require an investigator or decision maker to consider the complaint as if it were a complaint made pursuant to the AD Act.[25]
  1. [79]
    A decision maker or investigator might apply their understanding of the AD Act to evaluate the gravity (or otherwise) of conduct under consideration. But a conclusion that conduct amounts to an actual contravention of the AD Act is ultimately a matter of law. It is a conclusion that can only be definitively reached after a prescribed hearing process, conducted in a procedurally fair way, by a specialised court or tribunal vested with the jurisdiction to make such a finding. 
  1. [80]
    While it may be that conduct that e.g. contravenes the Code of Conduct for the Queensland Public Service (‘the Code of Conduct’) is found by a court or tribunal to also contravene the AD Act, it would be beyond the authority of a public sector decision maker in these circumstances to purport to make definitive findings to that effect. It is also not for Ms McNeil to simply declare a contravention of the AD Act.
  1. [81]
    Accordingly, the 'failure' of decision makers to expressly consider Mr Healy's conduct within the framework of the AD Act does not undermine the merit of their respective conclusions. The policy plainly establishes that the appropriate standard within which to consider Mr Healy's conduct was the Code of Conduct.[26]
  1. [82]
    Additionally, to the extent it is necessary to deal with it, Ms McNeil has made numerous assertions that Mr Healy's intention or motive for his conduct is irrelevant when considering whether he has contravened the AD Act. This proposition is uncontroversial as a matter of law.[27] But it is only relevant in the context of consideration of impugned conduct, by a court or tribunal, in the context of an actual complaint made pursuant to the AD Act. Stated motive or intention is still relevant in the broader context. 
  1. [83]
    Mr Healy's intention or motive is entirely relevant in that broader context and especially so with respect to consideration of his conduct within the framework of the Code of Conduct.[28] These are matters that the investigator and decision makers were well within the bounds of reasonableness to consider when evaluating the true nature of Mr Healy's conduct.
  1. [84]
    In any event, even if one disregards Mr Healy's asserted innocent intent entirely, his conduct remains objectively inoffensive.
  1. [85]
    Further with respect to the AD Act, Ms McNeil makes reference to the fact that the Commission has exclusive jurisdiction for workplace related anti-discrimination matters. That is true, though only when that jurisdiction is invoked by referral of a complaint from the Queensland Human Rights Commission.[29] There is no jurisdiction to consider and resolve complaints of AD Act contraventions in the context of a public service appeal.
  1. [86]
    Having brief regard to these two of the more significant criticisms of the process, it is plain that even if the Commission were inclined to review the decision, the grounds posited by Ms McNeil as rendering the decision unfair and unreasonable are misconceived.
  1. [87]
    More generally, it ought to be noted that Ms McNeil's reply submissions contain assertions that rely on gross misconceptions.  At paragraph 2 of her reply submissions Ms McNeil asserts her grievance was not limited to the GIF. She now seeks to portray her grievance as encompassing Mr Healy's conduct more broadly.
  1. [88]
    A simple review of the grievance[30] reveals that it exclusively deals with Ms McNeil's complaint about the GIF and Ms Flewell-Smith. The closest it gets to incorporating anything broader is a sentence in the closing paragraph that reads:

''Given the circumstances between my Team Leader Pat Healy and Yan Lui I expect corrective action…''

  1. [89]
    This is presumably a reference to the workers' compensation claim made by Dr Liu and the circumstances giving rise to it. But it, in no way, broadens the grievance beyond the GIF and Ms Flewell-Smith. If that was Ms McNeil's intention, it is her own failure to communicate that clearly that has limited the scope of the matter.
  1. [90]
    Further, Ms McNeil complains that the decision maker failed to consider the relevant context of the WorkCover claim. What Ms McNeil appears unable to appreciate is that the workers' compensation claim made by Dr Liu is a confidential matter between Dr Liu and WorkCover. The Respondent is not a respondent to that claim. Mr Healy is a not a respondent to that claim.
  1. [91]
    The details giving rise to Dr Liu's claim are not matters upon which the Commission should speculate. However, the Commission is very conscious that the statutory test for an 'injury' under the Workers' Compensation and Rehabilitation Act 2003 (Qld) contemplates a vast array of circumstances.[31] Further, the fact that Mr Healy’s conduct might be identified as being causative of Dr Liu's injury does not immediately give rise to an inference of conduct on his part that would breach the Code of Conduct. 
  1. [92]
    While the Commission cannot (and should not) be privy to the confidential details of Dr Liu's claim in these proceedings, it can safely be assumed that if there was conduct by Mr Healy that was both causative of Dr Liu's injury and relevant to Ms McNeil's complaint, Ms McNeil would have put it on the record by now.     
  1. [93]
    There are many other grounds relied on by Ms McNeil in her voluminous material, but they are matters of such insignificance to the objectively uncontroversial conduct at the root of her complaint that they do not warrant any further consideration.

Conclusion

  1. [94]
    Section 562A of the IR Act vests a discretion in the Commission to not hear a public service appeal. The discretion can be invoked where the Commission considers inter alia there is a compelling reason not to do so. In this matter there are at least two compelling reasons.
  1. [95]
    Firstly, on any objective view, the conduct of Mr Healy is not offensive or inappropriate in the manner alleged by Ms McNeil, or at all. Four independent individuals have considered Ms McNeil's complaint about Mr Healy. None of them have shared Ms McNeil's outrage. Now, the Commission has also considered Mr Healy's conduct, and it too comprehensively rejects Ms McNeil's complaint. 
  1. [96]
    There is even less merit (if that be possible) in Ms McNeil's complaint against Ms Flewell-Smith.
  1. [97]
    In the circumstances, where the impugned conduct that has triggered this entire process is found to be demonstrably innocuous, that finding of itself is a compelling reason to refuse to hear an appeal.
  1. [98]
    Secondly, beyond the rejection of her complaint about the conduct of Mr Healy and Ms Flewell-Smith, every matter further complained of across the multiple layers of review and appeal is a matter that alleges procedural or technical error.
  1. [99]
    The error of Mr Parker has been acknowledged and addressed by Mr Vidgen. Insofar as Ms McNeil alleges errors in the failure to speak to nominated witnesses or to apply the AD Act etc, there are no errors.
  1. [100]
    To the extent that Ms McNeil alleges other errors of a procedural or technical nature e.g. failure to comply with a directive, these are immaterial given the objectively innocuous nature of the conduct of Mr Healy and Ms Flewell-Smith. They do not render any of the decision unfair or unreasonable.
  1. [101]
    A process of reviewing or even correcting each of these alleged errors would be an exercise in time wasting second only in magnitude to the exercise undertaken by this Commission in preparing these reasons. No matter how effective any remedial process to address the technical errors was, the material facts relevant to the complaints will not alter, and the outcome for Ms McNeil's complaint would never change.

Order

  1. [102]
    For all of these compelling reasons, the Commission will not hear Ms McNeil's appeal. 
  1. [103]
    The Commission makes the following order.
  1. Pursuant to s 562A of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal.

Footnotes

[1] The Appellant's submissions filed 1 June 2023 ('the Appellant's submissions'), para. 3.

[2] The Appellant's submissions in reply filed 12 July 2023 ('the Appellant's reply submissions'), attachment 'MM17', page 5.

[3] The Appellant's submissions, para. 7.

[4] The Appellant's reply submissions, attachment 'MM17', page 5.

[5] Form 89 - Appeal notice filed 13 April 2023 ('appeal notice'), attachment 'MM1', page 5.

[6] Appeal notice, attachment 'MM1', page 5.

[7] Appeal notice, attachment 'MM3'.

[8] T 1-3, ll 10-30.

[9] Industrial Relations Act 2016 (Qld) s 562A(3).

[10] Ibid s 562B.

[11] See also Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[12] Industrial Relations Act 2016 (Qld) s 562B(3).

[13] Appeal notice, attachment 'MM2'.

[14] The Appellant's reply submissions, attachment 'MM17'.

[15] Appeal notice, attachment 'MM3'.

[16] For example, the incident involving AFL player Adam Goodes in 2013: see, Greg Baum and Michael Gleeson, 'Goodes ''gutted'' after racial slur', The Age, (online, 25 May 2013) .

[17] For example, the 'Charlie Hebdo' magazine cover depicting the former French Justice Minister Christiane Taubira (a woman of African extraction) as a monkey: see, Kim Willsher, 'French magazine faces legal inquiry over racist slur against politician', The Guardian, (online, 14 November 2023) .

[18] The Appellant's reply submissions, attachment 'MM17', page 17.

[19] The Appellant’s submissions, attachment 'MM07', page 7.

[20]Industrial Relations Act 2016 (Qld) s 562B(3).

[21] The Appellant's reply submissions, attachment 'MM17', page 19.

[22] The Appellant's reply submissions, attachment 'MM17', page 12.

[23] Appeal notice, attachment 'MM5', para. 39–42, page 7.

[24] The Respondent's submissions filed 20 June 2023 ('the Respondent's submissions'), attachment 5, page 51, Appendix 2.

[25] The Respondent's submissions, attachment 5, page 43, 'Guiding Principles'.

[26] See the Respondent’s submissions, attachment 5, page 43, 'Rationale' and 'Guiding Principles'.

[27] See Anti-Discrimination Act 1991 (Qld) ss 10(2), (3).

[28] See Clause 1.5 of the Code of Conduct.

[29] Anti-Discrimination Act 1991 (Qld) s 164A.

[30] Appeal notice, attachment 'MM1'.

[31] Workers' Compensation and Rehabilitation Act 2003 (Qld) s 32.

Close

Editorial Notes

  • Published Case Name:

    McNeil v State of Queensland (Electoral Commission of Queensland)

  • Shortened Case Name:

    McNeil v State of Queensland (Electoral Commission of Queensland)

  • MNC:

    [2023] QIRC 308

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    23 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Baldwin v State of Queensland (Queensland Health) [2025] QIRC 2242 citations
Egan v State of Queensland (Department of Education) [2024] QIRC 1682 citations
Gurdler v State of Queensland (Queensland Health) [2024] QIRC 2132 citations
Huey v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 3152 citations
Jackson v State of Queensland (Queensland Health) [2024] QIRC 2222 citations
1

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