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  4. Huey v State of Queensland (Electoral Commission of Queensland) - [2023] QIRC 315

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Huey v State of Queensland (Electoral Commission of Queensland)[2023] QIRC 315

Huey v State of Queensland (Electoral Commission of Queensland)[2023] QIRC 315

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Huey v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 315

PARTIES:

Huey, William

(Appellant)

v

State of Queensland (Electoral Commission of Queensland)

(Respondent)

CASE NO:

PSA/2023/79

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

3 November 2023

MEMBER:

Dwyer IC

HEARD AT:

On the papers

ORDER:

  1. Pursuant to s 562A(3) 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 purported to lodge a grievance in accordance with Directive 11/20 – Individual employee grievances – where the respondent did not accept the appellant’s grievance – consideration of whether to hear the appeal – where there are compelling reasons not to hear the appeal

LEGISLATION AND OTHER INSTRUMENTS:

Directive 11/20 – Individual employee grievances cl 5

Directive 17/20 – Workplace investigations cl 8

Industrial Relations Act 2016 (Qld) s 429, s 562A, s 562C

Public Service Act 2008 (Qld) s 26

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

CASES:

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

State of Queensland v Dodds [2021] ICQ 7

Reasons for Decision

Introduction and background

  1. [1]
    Mr William Huey is employed by the State of Queensland (Electoral Commission of Queensland) ('the Respondent') in the role of Team Leader, Elections and Industrial Elections.
  1. [2]
    This appeal has a significant factual relationship to the appeal recently the subject of consideration by the Commission in McNeil v State of Queensland (Electoral Commission of Queensland) ('McNeil').[1] Part of the relevant factual summary in this matter is already summarised in McNeil and for efficiency does not need to be repeated in these reasons.[2]
  1. [3]
    In short, this appeal also relates to the message sent via Microsoft Teams from Mr Pat Healy (Team Leader) to Dr Yan Liu, Ms Moira McNeil and another employee of the Respondent in the Data Insights and Spatial team on 28 October 2022. The message read 'Happy Birthday Yan [smiling emoji]' and was accompanied by an animated GIF depicting a computer-generated clip of an orangutan dancing ('the GIF').
  1. [4]
    Mr Huey was not a direct recipient of the message. It came to his attention when it was shown to him on 28 October 2022 by Ms McNeil. Ms McNeil was concerned about the effect that the GIF would have on Dr Liu because Ms McNeil considered it was both racist and sexually inappropriate.
  1. [5]
    After having been shown the GIF, Mr Huey contends that he formed 'a reasonable belief of an ongoing pattern of negative treatment towards Dr Liu by Mr Healy' and sought to raise his concerns with Ms Jerri Flewell-Smith of the Respondent's human resources department.[3] He met with Ms Flewell-Smith on 28 October 2022 and discussed his concerns.
  1. [6]
    Mr Huey followed up his meeting with Ms Flewell-Smith by subsequently sending an email ('his complaint') on 28 October 2022 that relevantly read:[4]

''Hi Jerri,

This morning I was provided a copy (screenshot) of a message posted by the Team Leader – Spatial and Data to his workgroup.

The message contained a birthday message for one of his team, Yan, as well as a GIF. The GIF was a video of a dancing monkey. The monkey appears to be an orangutan.

The person this message was addressed to is a woman, whose family are originally from Vietnam. Using a monkey in this way is 'probably' inappropriate.

Another member of the team who viewed the GIF is a man of African origins. Using a monkey in this way in a message that he will definitely see is also inappropriate.

You may be aware that the subject of the message has recently been involved in a workplace dispute with her Team Leader. A WorkCover claim for the affects of workplace bullying has been accepted by them.

I was a witness to a previous incident involving these staff members and provided a statement to WorkCover about that in their investigation.

In that context I find the use of the GIF to be completely inappropriate and I expect ECQ to take strong action in response.

If zero tolerance for workplace bullying has any meaning then this action cannot be ignored taking into account the contextual matters raised here.

Happy to discuss further to assist.''

  1. [7]
    Mr Huey contends that his complaint represented a formal grievance within the meaning of cl 5 of the Directive 11/20 – Individual employee grievances ('the Directive').
  1. [8]
    Mr Huey received a response from Ms Flewell-Smith that same day. He says that he took this to be a formal receipt of his formal complaint. The response relevantly read:[5]

''Hey Bill,

Always happy to discuss workplace issues as they arise and thank you for calling me about the below.

…

I have spoken to Yan twice today about the situation. She disclosed that she felt some discomfort from receiving the gif purely from a relationship perspective, as she felt that her and Pat are not close enough to be sharing a gif of that nature (e.g. a more jovial, energetic gif). I shared with Yan that (from the assistance I have been giving her and pat recently) I felt Pat was attempting to celebrate her birthday and that I didn't think it was his intention to offend her. I know Pat has been taking my advice on effective communication seriously, is genuinely concerned about Yan's health and wants to assist her in any way he can. Yan agreed and advised that she did not feel that Pat sent the gif on purpose to upset her, but felt that this wasn't a professional way to celebrate her birthday while they are building their working relationship.

Both Yan and Pat have been making a great effort to improve their communication. I meet with Yan regularly and she has shared on a multiple occasions that herself and Pat are getting along well…

…

You have also shared some of your own views about the meaning and intention behind the gif, but from my knowledge of the current situation I don't believe the use of that particular gif was intentionally racially motivated. Yan did not share concerns with me related to race from the gif.

As discussed in our chat, whilst Yan's WorkCover claim has been accepted this does not confirm that bullying and harassment occurred… While WorkCover have determined that the workplace was a factor for a portion of Yan's claim, it is not part of their assessment to make a decision on whether bullying and harassment occurred.

I can confirm I am working with Yan on a suitable way to address the discomfort she raised and to ensure the team can continue building better communication and better relationships with each other.

ECQ takes claims of bullying and harassment seriously so thank you for the call and for raising your concerns with me. As mentioned, I will now address this with Yan and Pat privately. Please let me know if there's anything else you'd like clarification on.''

(Emphasis added)

  1. [9]
    It is not clear what steps Mr Huey took (if any) to verify these reassurances from Ms Flewell-Smith with Dr Liu although, it could be safely assumed that, if Dr Liu has contradicted Ms Flewell-Smith’s account of events, Mr Huey would have raised that by now.
  1. [10]
    Dr Liu has never made any formal complaint about the GIF.
  2. [11]
    On 31 October 2022 Ms McNeil lodged a grievance in respect of the GIF and Ms Flewell-Smith's conduct in accordance with the Directive.[6] On 7 November 2022, as a consequence of Ms McNeil's grievance, the Respondent engaged an independent investigator to investigate the allegations.[7]
  1. [12]
    On 17 November 2022, Mr Huey contacted human resources seeking an update on the progress of his complaint. Notably, Mr Huey did not direct this enquiry to Ms Flewell-Smith. Mr Huey directed his enquiry to a generic human resources email address, notwithstanding that he had an email address for Ms Flewell-Smith. The relevance of this observation is discussed later in these reasons.
  1. [13]
    Mr Huey was informed in a reply email from human resources on 17 November 2022 that the matter was currently being investigated, but that no further information could be disclosed to him. He was assured the matter was being managed in a timely and confidential manner.[8] Mr Huey was invited to contact human resources if he had any further concerns. Mr Huey did not immediately take any further action.
  1. [14]
    After a period of leave, Mr Huey contacted human resources on or about 6 January 2023, seeking an update on the matter. Mr Huey was verbally informed that the investigation had concluded and the investigator’s report was with the delegate. Notably, Mr Huey did not react to this news in any way that would indicate he was concerned about the progress of his complaint at that time. In fact, he did not act on this information at all.
  1. [15]
    On 24 February 2023, Mr Huey was directed to attend a meeting with the Assistant Commissioner and the Director of Corporate Services (Mr Damien Parker) of the Respondent concerning Ms McNeil's grievance. Presumably he was informed that the complaints made by Ms McNeil were unsubstantiated. Mr Huey then asked about his own complaint but was told that it had not been considered at that point.
  1. [16]
    Over the following days, Mr Huey began email correspondence with Mr Parker in which he expressed concerns that his complaint had not been dealt with. Mr Parker responded with comments to the effect that Mr Huey's email of 28 October 2022 might not have meet the relevant criteria of a 'grievance'. It is here where the familiar ballet of bureaucratic dispute begins to take form.
  1. [17]
    The back and forth between Mr Huey and Mr Parker is set out in an email chain found at 'WH07' to Mr Huey's submissions (filed 31 May 2022) and reveals the (potential) oversight in dealing with Mr Huey's complaint, though this is not conceded by Mr Parker. What is uncontroversial though is that Mr Huey's complaint was not formally actioned beyond Ms Flewell-Smith's response on 28 October 2022.
  1. [18]
    As the email exchange continues and the dispute escalates, Mr Parker eventually finds a way to legitimately extract himself from the issue by 31 March 2023 and hands the matter to the Electoral Commissioner, Mr Pat Vidgen. 
  1. [19]
    On 17 April 2023, Mr Huey received an outcome letter in respect of his complaint. The outcome letter indicated that his complaint should not be accepted and dealt with under the Directive ('the decision'), for reasons including inter alia Mr Vidgen did not consider Mr Huey had demonstrated the requisite 'honest belief based on reasonable grounds' and also that the subject matter was already dealt with in Ms McNeil's grievance.
  1. [20]
    Mr Huey now appeals the decision. The grounds of this appeal are set out in the Form 89 – Appeal Notice filed in the Industrial Registry on 21 April 2023. They relevantly state:

''I contend that I have not been given an opportunity to provide relevant information in support of my complaint and have therefore been denied natural justice as ECQ failed to provide me with a fair hearing on my complaint.

I believe that I have followed ECQ's Employee Complaint policy and the relevant Directives to the best of my ability. I further contend that the consideration of this matter, such as it was, is in breach of Directive 11/20 – Individual employee grievances mandatory obligations, including affording me procedural fairness in making a decision on my complaint lodged on the 28th October 2022.

Given the decision was made by the Chief Executive of ECQ I have been denied the opportunity to appeal this matter internally and must seek to appeal to the Queensland Industrial Relations Commission for the decision to be reviewed.''

Proceedings before the Commission

  1. [21]
    The matter was mentioned before the Commission on 4 May 2023. At the mention, the Commission informed Mr Huey of its limited powers in respect of public sector appeals, in that it may only confirm the decision, substitute the decision with another decision, or set the decision aside and return the matter to the decision maker.[9]
  1. [22]
    The Commission further informed Mr Huey of its preliminary view that there would be no utility in dealing with his appeal in circumstances where Ms McNeil's grievance, which dealt with essentially the same issues, had already been the subject of an external investigation (and at that time was the subject of a similar appeal). The Commission put to Mr Huey that returning his matter to the decision maker would therefore serve no purpose.[10]
  1. [23]
    Mr Huey's response to the Commission's comments is set out later in these reasons but suffice is to say, he contended that there was a significant point of difference with his matter that (he said) could justify either re-opening or re-conducting the investigation into Mr Healy's alleged improper conduct.
  1. [24]
    The Commission remained sceptical but was compelled by s 562A(3)(b) of the Industrial Relations Act 2016 (Qld) ('IR Act')  to give Mr Huey an opportunity to make submissions as to why he had an arguable case. In the circumstances, the Commission issued directions requiring Mr Huey to file submissions outlining why he has an arguable case for the appeal pursuant to s 562A of the IR Act.

Relevant legislation

  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)

Submissions of the parties

Mr Huey's submissions

  1. [26]
    Mr Huey submits that the Respondent did not comply with cl 8.1 of Directive 17/20 – Workplace investigations as it failed to enable Mr Huey to participate and therefore did not ensure the external investigation was conducted in a fair and balanced manner.
  1. [27]
    Mr Huey submits that he had an honest belief that a breach of the Code of Conduct occurred as he had knowledge of a number of prior (negative) interactions between Dr Liu and Mr Healy.
  2. [28]
    In respect of the decision maker's conclusion that Mr Huey failed to establish a sufficient link between his concerns about Mr Healy sending the GIF and the WorkCover claim, Mr Huey submits that the 28 October 2022 email did not represent the totality of the evidence he intended to provide in respect of the concerns raised. Mr Huey says that he expected that all related matters would be considered at a later date.
  1. [29]
    Mr Huey submits that it was incumbent on the Respondent to take local action in respect of the grievance in order to comply with the Directive. Mr Huey says that by refraining from doing so, the Respondent has not upheld the standards contemplated by s 26 of the Public Service Act 2008 (Qld) and has failed to ensure the provision of natural justice.

The Respondent's submissions

  1. [30]
    The Respondent opens its submissions by contending that the 28 October 2022 email was, in essence, not a formal complaint within the meaning of the Directive. The Respondent submits that nowhere in the 28 October 2022 email does he indicate that it should be taken as a 'formal complaint'.
  1. [31]
    The Respondent further submits that Ms Flewell-Smith's response to the 28 October 2022 email makes it clear that she did not consider it to be a formal complaint. The Respondent says that it any event, the concerns raised in the 28 October 2022 email were actioned promptly and appropriately through local action in its response to Ms McNeil's complaint. .
  1. [32]
    The Respondent submits that the decision maker was correct in deciding that Mr Huey had not demonstrated he had an honest belief, based on reasonable grounds, to justify raising the allegations that were the subject of his grievance. This submission is made on the basis that Mr Huey did not establish a sufficient link between his concerns about Mr Healy sending the GIF and the WorkCover claim.
  1. [33]
    The Respondent closes its submissions by noting that Mr Huey contends inter alia that the decision ought to be set aside and the decision maker be directed to conduct an investigation into the matters raised in the 28 October 2022 email. On this point, the Respondent says that the matters raised in the 28 October 2022 had already been thoroughly ventilated throughout the course of an external investigation. The Respondent therefore submits that there is no utility in the orders sought by Mr Huey.

Mr Huey's reply submissions

  1. [34]
    Huey filed reply submissions on 7 July 2023 pertaining to errors of facts and law he says were demonstrated in the submissions of the Respondent. In summary, Mr Huey submits:
  • neither the Directive nor the Respondent's Employee Complaints Policy requires the explicit use of the words 'formal complaint' in order to lodge a grievance;
  • neither HR's response to the 28 October 2022 email nor the decision constitute local action as contemplated by the Directive;
  • the decision maker's inability to establish a sufficient link between Mr Huey's concerns about Mr Healy sending the GIF and the WorkCover claim was as a result of Mr Huey's omission from the external investigation;
  • the decision maker did not seek any input from Mr Huey before deciding that he did not hold an honest belief, based on reasonable grounds, to justify raising the allegations that were the subject of his grievance;
  • the concerns raised in the 28 October 2022 email ought to be re-investigated as the decision did not purport to take into account 'an apparent pattern of behaviour that led up to sending of the GIF'; and
  • Mr Huey's appeal is not frivolous, vexatious, nor does it lack in substance.

Consideration

Appeal grounds

  1. [35]
    The Commission can only reiterate the lamentations expressed in Mc Neil.[11] In doing so, it ought to be made clear that no criticism is made of the Respondent in respect of their handling of the complaint, either in this matter or in respect of Ms McNeil's complaint. The source of this great waste is the labyrinth of directives and policies that are intended to serve a legitimate purpose, but which contain innumerable layers of detail that can be utilised as footholds for highly resistant or unreasonable parties to perpetuate trivial and unreasonable disputes.  
  1. [36]
    Further, because the Commission has already extensively examined and explained why Mr Healy's conduct and the GIF is not offensive in McNeil,[12] there is no need for that effort to be repeated in these reasons at further cost of time to the Commission.
  2. [37]
    As with McNeil, the conclusion that the conduct of Mr Healy is objectively inoffensive is a large part of what informs the discretion to not hear this appeal. However, while the conduct of Mr Healy in sending the GIF to Dr Liu remains at the core of Mr Huey's complaint, his grounds for appeal arise in distinctly different circumstance to Ms McNeil.
  1. [38]
    Unlike Ms McNeil who refused to accept decisions by multiple individuals that the conduct of Mr Healy was not objectively offensive, the central issue in Mr Huey's appeal is the failure of the Respondent to deal with his complaint in accordance with the manner prescribed in the Directive.
  1. [39]
    In short, Mr Huey says his complaint ought to have been processed as a formal grievance under the Directive.[13] If it had (he says) he could have provided information that would portray Mr Healy's conduct as much less innocuous than it appears.
  1. [40]
    It is uncontroversial that Mr Huey's complaint was not processed in the manner prescribed under the Directive.
  1. [41]
    The contest in this appeal fundamentally arises because the Respondent says that Mr Huey's email of 28 October 2022 does not constitute a grievance within the meaning of the Directive and therefore there was no obligation for a formal process beyond the email reply sent by Ms Flewell-Smith.
  1. [42]
    At the mention of these proceedings on 4 May 2023, the Commission questioned Mr Huey about his objectives with respect to the appeal:[14]

COMMISSIONER: …Can you tell me Mr Huey, what outcome you would be seeking in respect of this appeal? If you could pick an outcome of your choice, what outcome would you seek?

MR HUEY: Thank you, Commissioner. The outcome I seek is for my complaint to be dealt with in accordance with directives, and I don't believe that's what's occurred in this case.

…

MR HUEY: I don't want to relitigate what we're talking about I guess, we're not here to try the case as it were, I just want a formal decision in accordance with the directives.

COMMISSIONER: Okay. And the difficulty I have with that, Mr Huey, is that whilst I appreciate your submission about the failure to deal with the complaint… to put it in very blunt terms, I wonder what the point would be in dealing with your compliant now. Given that it deals with the same subject matter that has already been dealt with. What else could your input add to the matter that might change or have some material impact on things?

MR HUEY: So thank you, Commissioner. I guess the key point here that, from my perspective, appears to have been missed is that this matter is much more serious than it appears because the context in which it occurred. This was a single incident within a pattern of behaviour that I observed from Dr Liu's supervisor to her over a period of time. It was, if you like, the last in a series and it caused me to make that formal complaint. It may not be known to you, Commissioner, but three days prior to this incident occurring there was a WorkCover finding that Dr Liu had been the subject of workplace harassment and bullying. And I saw this incident as a reaction to that finding, hence my complaint.

(Emphasis added)

  1. [43]
    And so, with this exchange, the true case made by Mr Huey is made clear. In short, he contends that if his complaint was formally dealt with under the Directive, the full context of conduct preceding the sending of the GIF could have been revealed, and the conduct of Mr Healy in sending that message to Dr Liu would take on a much more sinister hue.
  1. [44]
    Therefore, in considering whether Mr Huey has an arguable case for the purposes of s 562A of the IR Act, it is not simply a question of whether his email of 28 October 2022 was a complaint that should have been dealt with under the Directive. There is also a need to consider what evidence Mr Huey has of this 'pattern of behaviour' he alleges and whether it materially alters the otherwise innocuous nature of the GIF. 

Was the complaint a 'grievance' for the purposes of the Directive?

  1. [45]
    Leaving aside the strict terms of the Directive relied on by Mr Vidgen, the email sent by Mr Huey is plainly a complaint. So much is obvious where Mr Huey states at the end of that email 'I expect ECQ to take strong action in response'.
  1. [46]
    The language of cl 5.1 of the Directive purports to establish a prerequisite for a grievance as 'an honest belief, based on reasonable grounds' by the 'current public service employee' making the complaint. A more fertile ground for disagreement than this wording would be hard to imagine. This is precisely the type of language referred to above that creates triggers for lengthy, expensive, and often pointless disputation.
  1. [47]
    The Commission will not be drawn into a technical examination of whether Mr Huey's complaint was a grievance for the purposes of the Directive. For all of the reasons that follow, it ultimately does not matter. If pressed, the Commission would consider that a generous view of 'honest belief' and 'reasonable grounds' is called for.
  1. [48]
    Even if Mr Huey's complaint of 28 October 2022 was a grievance for the purposes of the Directive, the effect of any failure by the Respondent to formally address it, while prima facie liable to create unfairness, is significantly off set by Mr Huey's own conduct in the months that followed.
  1. [49]
    When one has regard to the conduct of each party from 28 October 2022 (and after) it appears to an objective observer that Mr Huey was not expecting and was not pressing to have his complaint dealt with formally under the terms of the Directive. In those circumstances, any unfairness arising from the technical failure by the Respondent to formally address the complaint is entirely negated.
  1. [50]
    The first example of this conduct is the email response from Ms Flewell-Smith. Mr Huey's complaint on 28 October 2022 was responded to by Ms Flewell-Smith that same day. Her response is expressed in the email as a confirmation of the conversation she had with Mr Huey earlier that day and is sent approximately four hours after Mr Huey's complaint email.[15]
  1. [51]
    The response sent by Ms Flewell-Smith (which is set out in full above at [8]) is comprehensive and addresses a number of key issues concerning Mr Huey's complaint. Firstly, Ms Flewell-Smith confirms that she has spoken directly with Dr Liu and that Dr Liu only felt uncomfortable about the GIF because it was too jovial given the relationship she had with Mr Healy. She did not consider it was intended to offend her and was feeling optimistic about restoring her relationship with Mr Healy.
  1. [52]
    Also in her response, Ms Flewell-Smith directly addresses the relevant context asserted by Mr Huey i.e. the WorkCover claim. Ms Flewell-Smith carefully and properly explains to Mr Huey that an accepted claim is not synonymous with a conclusion that Mr Healy engaged in bullying and harassment. It would seem that this was included because Mr Huey had been improperly conflating those propositions. Indeed, he continues to do so even in this appeal. 
  1. [53]
    Importantly, the email response from Ms Flewell-Smith does not acknowledge Mr Huey's email of 28 October 2022 as a grievance under the Directive and neither does it identify 'next steps' or any other action. It effectively concludes with a reassurance and an indication that Ms Flewell-Smith intends to deal with the matter between Mr Healy and Dr Liu privately.
  1. [54]
    Remembering that Mr Huey is (or was) a union representative, this response ought to have immediately triggered concern if he was (as he now says) expecting his complaint to be addressed formally. But even without such experience, the unambiguous tone of Ms Flewell-Smith's response is completely inconsistent with the matter being dealt with as a formal complaint. Yet Mr Huey did nothing to correct this. Instead, he waited three weeks to follow up. 
  1. [55]
    On 17 November 2022, Mr Huey emailed 'Human Resources'. He attached the chain of emails exchanged with Ms Flewell-Smith on 28 October 2022 and enquired as to 'what action had been taken to resolve the matter'.
  2. [56]
    Notably, there is no explanation as to why Mr Huey did not send this follow up email to Ms Flewell-Smith or even include her in his follow up in circumstances where he had been communicating with her directly previously. One might speculate that it was because Mr Huey, having no doubt discussed the matter with Ms McNeil, took a similarly adverse view of Ms Flewell-Smith by this stage and sought to avoid further dealings with her.[16]
  1. [57]
    But whatever the explanation might be, one would expect Mr Huey would appreciate the importance of continuity in terms of complaint handling. If it had been Mr Huey's intention to prompt some action when he contacted human resources on 17 November 2022, his failure to take it up with the officer to whom he alleges he made his complaint would inevitably increase the risk of compounding any misunderstanding that might have already occurred.
  1. [58]
    In any event, another member of the human resources team responded on 17 November 2022 and confirmed the matter was being investigated. Significantly, the response also claimed confidentiality about the specifics of the matter and an inability to discuss with Mr Huey.
  1. [59]
    The claim of confidentiality by the human resources officer in that email should have caused significant alarm for Mr Huey. As the person who has purportedly made the complaint, one would expect he would (by either experience or instinct) have expected to be involved with the investigation. Indeed, Mr Huey confirms his understanding of this in his submissions where he cites the relevant clause of the Directive, but then completely fails to explain why he did not immediately press the issue with human resources.[17]
  1. [60]
    Mr Huey's lack of reaction in these circumstances is more than a little curious. 
  1. [61]
    After this exchange on 17 November 2022, Mr Huey says nothing and takes a period of leave over Christmas. He does not action the matter further until 6 January 2023. 
  1. [62]
    On or about 6 January 2023, Mr Huey indicates that he spoke to 'human resources' again.[18] It was presumably a telephone or an in person discussion because no emails have been provided to confirm what enquiry was made or to whom. In any event, Mr Huey contends he was told on 6 January 2023 that the investigation was completed and the delegate was considering the outcome.
  1. [63]
    On the kindest interpretation of the facts to this point, it is arguably within the bounds of reasonableness to suppose that perhaps Mr Huey innocently missed the indications in communications from Ms Flewell-Smith and human resources that were plainly inconsistent with what (he says) he thought was happening. But on this occasion, the response from human resources would or should have left Mr Huey in no doubt that his complaint was not being formally addressed.
  1. [64]
    As someone who alleges he considered himself a complainant at that time, and who had allegedly expected his complaint was being formally addressed under the Directive (with which he is plainly familiar), the information that the investigation had been completed without his input should have prompted an immediate reaction from Mr Huey e.g. wanting to know why he had not been interviewed.
  1. [65]
    Instead, consistent with his nonresponses on 28 October 2022 and 17 November 2022, he said nothing, and he did nothing.  It can only be a matter of speculation as to how long Mr Huey would have continued to sit passively, doing and saying nothing, now a full two months since he made his complaint.
  1. [66]
    The next action on the matter was at the initiative of the Respondent, approximately six weeks later.
  1. [67]
    On 24 February 2023, Mr Huey was summoned (at his employer's request) to a meeting where he was informed of the outcome of Ms McNeil's complaint. It was only after receiving that news that Mr Huey thought to raise his complaint.
  1. [68]
    A cynical person might conclude on these facts that, by at least 6 January 2023, Mr Huey was content for Ms McNeil's complaint to be the vehicle to deal with his own complaint. But then, when he found out on 24 February 2023 that Ms McNeil's complaint was found by the Respondent to be unsubstantiated, he was so aggrieved by that, that he then began scrambling to revive his own complaint in a bid to contradict that finding. Ultimately though, the reasons for not acting are not relevant. It is his conduct between October 2022 and February 2023 as it appears to an objective observer that negates any unfairness.
  1. [69]
    As concluded in McNeil, a failure to comply with a Directive will not, of itself, render a decision unfair and unreasonable.[19] Mr Huey has repeatedly demonstrated a thorough knowledge of the Directive. He is (or was) a union representative who has presumably had some degree of training on such matters. But even if none of this was true, there are no less than three communications from the Respondent's human resources department between 28 October 2022 and 6 January 2023 that even the most unsophisticated of individuals would have understood were inconsistent with his complaint being formally addressed in accordance with the Directive.
  2. [70]
    To whatever extent the Respondent might have fallen into error by failing to formally address his complaint, the communications between the parties reveal that Mr Huey was (or should have been) capable of appreciating the Respondent's apparent error and could (or should) have intervened earlier to correct it.
  1. [71]
    The technical argument that Mr Huey now makes that his complaint was not dealt with as prescribed by the Directive, while arguably correct, is entirely stripped of merit by Mr Huey's own dilatory conduct and renders futile any further consideration of the appeal on those grounds.
  1. [72]
    Subject to consideration of the second aspect of Mr Huey's contention that follows, this conclusion gives rise to the first of two compelling reasons for which the Commission considers the appeal should not be heard.  

Pattern of behaviour of Mr Healy

  1. [73]
    Mr Huey's failure to genuinely pursue his complaint negates any unfairness to him, but the failure of that technical argument alone may arguably not be a sufficient compelling reason not to hear the appeal. If the end result of a successful review for Mr Huey would merely result in a 're-hash' of the investigation undertaken in response to Ms McNeil's complaint then, without question, further consideration of Mr Huey's appeal would serve no purpose.
  1. [74]
    But Mr Huey is insistent that there is genuinely compelling evidence of what (he alleges) is a 'pattern' of improper behaviour by Mr Healy towards Dr Liu. Mr Huey contends that this added dimension undermines the otherwise innocuous character of the conduct of Mr Healy in sending the GIF to Dr Liu. Mr Huey contends that the GIF was just one incident in this pattern of improper behaviour.
  1. [75]
    Before considering Mr Huey's submissions, it is relevant to note that the appellant in McNeil attempted to retrospectively allege a relevant broader context after her complaint was found unsubstantiated. Upon examination of her formal grievance it was concluded in that appeal that the complaint by that appellant pointed to no such context.[20]
  1. [76]
    On a plain reading of Mr Huey's complaint of 28 October 2022, it is equally focused on the GIF. But, in contrast to the complaint in McNeil, it does allude to the recently accepted workers' compensation claim and 'an incident' about which Mr Huey gave a statement to WorkCover.
  1. [77]
    If Mr Huey is correct in his assertions about a pattern of improper behaviour capable of characterising the GIF as offensive, then in the Commission's view, this would be sufficiently serious to overcome the effects of Mr Huey's failure to genuinely pursue his complaint and the otherwise inconsequential technical failure of the Respondent to formally consider it. 
  1. [78]
    In those circumstances it becomes necessary to consider whether, on the evidence Mr Huey says he has, there is an arguable case that unfairness or unreasonableness might have arisen from the Respondent's declining to deal with his complaint. Of critical importance to that consideration will be:
  1. is there evidence of a pattern of improper conduct preceding the GIF incident; and if so    
  1. is it capable of altering the otherwise innocuous nature of the GIF.

i.  Pattern of conduct

  1. [79]
    Before the fateful GIF incident in October 2022, it is noted that Mr Healy commenced employment with the Respondent in or about February 2022. Mr Huey contends that throughout that eight month period, he observed what he alleges was a 'difficult' working relationship shared between Mr Healy and Dr Liu.
  1. [80]
    By way of particulars of this difficult relationship, he cites two examples of conduct. Additionally, in his written submissions, Mr Huey states very broadly that Dr Liu 'brought to his attention' concerns that 'Mr Healy was not providing her with effective direction, clarification of work tasks and supervision, was demeaning her work and obstructing her form performing and fulfilling her work duties'.[21] This is the totality of the evidence of the 'pattern' of behaviour Mr Huey has presented to the Commission.
  1. [81]
    The first of the two examples of the alleged difficult relationship occurred in or about early 2022. Noting that Mr Healy commenced in February 2022, it is presumed this incident occurs around that time. Dr Liu made a request for a flexible working arrangement that would see her working from home several days a week.[22]
  1. [82]
    Mr Huey says (without any particulars) that Mr Healy's response was 'obstructive'. Dr Liu apparently consulted Mr Huey in his capacity as a union representative for assistance and Mr Huey subsequently referred her to Together Queensland, Industrial Union of Employees for assistance.[23]
  1. [83]
    Despite the Commission making him aware of the need to demonstrate an arguable case, and despite having an opportunity to put his evidence before the Commission, Mr Huey provides no objective evidence to support his contention that this incident is evidence of a 'difficult relationship', let alone bullying. In particular, he does not cite what conduct Mr Healy displayed that might objectively be considered as 'obstructive'.
  1. [84]
    To merely oppose a proposal for a flexible working arrangement is not, of itself, an ‘obstructive’ act for a manager. It is trite to observe that negotiations over flexible working arrangements often produce frustration between both negotiating parties without that necessarily being an indication that one or other party is being unreasonable.
  1. [85]
    The second example cited by Mr Huey refers to an incident he says occurred in or about April or May 2022. Mr Huey says he observed Mr Healy on a telephone call to someone he later learned (from Ms McNeil) was allegedly Dr Liu. Mr Huey says that the tone of the call was 'intimidating, demeaning, threatening and aggressive' and at its conclusion, Mr Healy terminated the telephone call abruptly and proceeded to 'slam' down the handset.[24] This incident was the subject of Mr Huey’s ‘statement’ to WorkCover.
  1. [86]
    Mr Huey's 'statement' to WorkCover was apparently given verbally but appears to have been subsequently transcribed and provided to Mr Huey via email. The 'statement' is in the form of  a 'Q&A' from the WorkCover claims officer.
  1. [87]
    Relevantly, the verbal 'statement' was apparently given on 14 October 2022. A cursory examination reveals it to be anything but the product of a competent forensic interview. The relevant part is worth summarising here:[25]

WorkCover: Has the claimant ever mentioned being harassed by the employer, or any difficulties in the workplace such as bullying by work colleague?

Huey: Yan has raised issues about being bullied in the workplace. She has raised an incident with me and I advised her to think very seriously in raising a grievance with HR. I'm not sure what she did from there.

WorkCover: Direct witness to any specific events?

Huey: April/May this year I overheard a call between the TL of spatial and another person, whom I was not aware.

I heard a raise (SIC) voice speaking over the phone and it was very clear. He was being accusing of the other member of the conversation, can't do their work properly or communicate properly. They couldn't do their job properly.

The tone of the call was intimidating, demeaning, threatening and aggressive.

…

I did reach out to Yan through Moira, to convey that I had heard the other end of the conversation and that I was available to help if needed.

  1. [88]
    It is genuinely disappointing to come to the realisation that, when Mr Huey refers to 'the statement' he gave to WorkCover, this is it.
  1. [89]
    Given the confidence displayed by Mr Huey at the mention of the matter on 4 May 2023, the Commission held some expectation the 'statement' would be compelling.  Indeed, given the significant imprimatur ascribed to it by Mr Huey in the lead up to receiving his submissions, some time was spent by the Commission scouring the filed material expecting something of greater forensic value would be found. But as that task was undertaken,  with the turn of each page, expectation gradually gave way to a combination of incredulity and quiet despair.
  1. [90]
    When having regard to the 'statement' it must be appreciated that it is the end product of Mr Huey's unrestricted opportunity to provide all the detail he had in respect of his alleged observations of bullying and harassment of Dr Liu at the hands of Mr Healy. He gave the 'statement' in October 2022 and so presumably disclosed every relevant observation covering the period between February and October 2022.  And yet, given that opportunity, the only actual example he was able to give was a singular and subjective account of a telephone conversation that took place in April or May 2022.
  1. [91]
    When one examines what little detail is contained in the 'statement' it immediately reveals critical gaps, such as:
  • Mr Huey has no direct knowledge whether this telephone conversation was with Dr Liu. He is only told this by Ms McNeil;
  • Mr Huey is unable to offer information about the full context of the conversation i.e. what the person on the other end of the line was saying; and
  • At the time he gave the statement, Mr Huey had apparently not spoken directly to Dr Liu about it. For some unexplained reason he says he 'reached out' to Dr Liu through Ms McNeil and was otherwise wholly oblivious of Dr Liu's personal views on the matter.   
  1. [92]
    If all of that was not sufficient to cast doubt on the reliability of Mr Huey's account, there is not a single piece of evidence to suggest that this incident formed the basis of any claim by Dr Liu for workers' compensation (which was apparently made three to four months after this alleged incident) or, if it did, what conclusions were reached by WorkCover about it.
  1. [93]
    Accepting Mr Huey's version at its highest, the telephone conversation he describes might potentially amount to 'reasonable management action taken in an unreasonable way'.[26] Subject to a large variety of other considerations, that conclusion might result in a workers' compensation claim being accepted but it is not, of itself, consistent with a conclusion that Mr Healy has bullied Dr Liu or even that he acted in any improper way.
  1. [94]
    Mr Huey plainly misunderstands the nature of workers' compensation claims in respect of psychological injuries. Put very simply, if an injury is alleged to have arisen in the context of management action, that injury will not give rise to entitlement to compensation if the management action in question is considered reasonable and is taken in a reasonable way. Conversely, a claim will be accepted if WorkCover considers the management action alleged to have caused the injury was unreasonable or was taken in an unreasonable way.
  1. [95]
    The concepts of 'unreasonable management action' or action 'taken in an unreasonable way' incorporate a vast array of possibilities that are as diverse and unique as each claim. Findings of this type could easily include any number of innocuous errors by an otherwise well-meaning manager, including conduct that would not contravene the Code of Conduct for the Queensland Public Service. In the absence of relevant facts pertaining to the acceptance of Dr Liu's claim, it is not for the Commission (or Mr Huey) to speculate on what conduct of Mr Healy might have contributed to Dr Liu's injury.
  1. [96]
    The 'statement' and the mere fact that Dr Liu's workers' compensation claim was accepted are not compelling evidence of improper conduct or bullying by Mr Healy, as part of a pattern or otherwise.
  1. [97]
    As a final observation on reliability, it is noted that there is no suggestion that Mr Huey reported the incident in April or May 2022 to the Respondent. There appears no doubt that Mr Huey, as a union representative, clearly appreciates the conduct he describes is improper. One has to wonder why Mr Huey waited until October 2022 to provide any form of statement, and even then it is to WorkCover, not the Respondent.  
  1. [98]
    Further, it ought to be noted at this juncture that Mr Huey sought to rely on a confidential WorkCover document pertaining to Dr Liu that was attached to his submission. His conduct in this regard raises some serious concerns which are addressed separately below. 
  1. [99]
    The two incidents that Mr Huey has particularised appear to have occurred sometime between February and May 2022. Beyond these two examples of the alleged 'pattern' of conduct of Mr Healy, the only other allegations Mr Huey makes are set out in his submissions.
  1. [100]
    These additional allegations are collected in summary form in a single paragraph of Mr Huey's submissions. It is alleged that Dr Liu told Mr Huey that Mr Healy 'did not provide her with effective direction, clarification of work tasks and supervision, was demeaning her work and obstructing her from performing and fulfilling her work duties'.[27]
  1. [101]
    The lack of detail accompanying this superficial submission says it all. Even if one puts aside the second-hand nature of this submission, there is no indication when these things occurred or (importantly) if they are a series of separate allegations (as opposed to a complaint of a single incident). 
  1. [102]
    At this point in the proceedings, having been clearly advised of the Commission's concerns about the futility of his appeal, one would expect that a litigant so fervently invested as Mr Huey would have been able to inundate the Commission with evidence to demonstrate the alleged 'pattern' of improper behaviour by Mr Healy. Instead, after having been given every opportunity to make his case, which has caused many hours and taxpayer dollars to be expended, Mr Huey has presented evidence that evokes the (metaphoric) sounds of crickets chirping.
  1. [103]
    According to Mr Huey, the imperative for his appeal to be heard and the reason why it was set apart from the circumstances in McNeil, was that in his case, if his complaint was formally dealt with, he could show that there was a pattern of improper conduct that placed the GIF sent by Mr Healy into a far more sinister context. Mr Huey was most adamant about this on 4 May 2023 where he informed the Commission:[28]

MR HUEY: […] I guess the key point here that, from my perspective, appears to have been missed is that this matter is much more serious than it appears because the context in which it occurred. This was a single incident within a pattern of behaviour that I observed from Dr Liu's supervisor to her over a period of time…

(Emphasis added)

  1. [104]
    Mr Huey has utterly failed to demonstrate any such 'pattern' of conduct. Beyond his problematic 'statement' to WorkCover, Mr Huey has done no more than (at best) subjectively allude to a collection of routine tensions in an entirely third hand account of the working relationship between Mr Healy and Dr Liu. Not only is there no evidence presented that reliably or objectively indicates Mr Healy has bullied Dr Liu, but there is also no hint of a 'pattern'.

ii.  Do allegations alter the otherwise innocuous nature of the GIF?

  1. [105]
    The Commission has already considered and dismissed the evidence said to support a 'pattern' of behaviour.  But for completeness, whether there is a pattern of behaviour or not, the issue is sufficiently serious that it is appropriate to briefly consider whether any of the allegations Mr Huey has made might cause an objective observer to conclude that Mr Healy's conduct in sending the GIF was racist or otherwise offensive.
  1. [106]
    The starting point is to note that Mr Huey's complaint was, in essence, that the GIF would be offensive to Dr Liu because (he alleges) a computer enhanced image of a dancing orangutan carried racist connotations.
  1. [107]
    In McNeil, the Commission accepted the broad premise of such a complaint, in that there is a well-documented history of primates being used, by words or in images, to make racial slurs against people of African, Asian or Indigenous extraction.[29] But the Commission also concluded that images of primates do not, of themselves, evoke racist themes. There will always need to be some additional factor within the context of impugned conduct that gives rise to such an inference.[30] It only remains to be said that such an inference must be objectively appreciable to an observer, possessed of all of the relevant facts, in order for such conduct to be characterised as racist.
  1. [108]
    The relevant timeline of events in Mr Huey's appeal begins with Mr Healy's arrival in February 2022. On Mr Huey's account, there were two specific events that he considers to be relevant context, namely the alleged 'obstruction' by Mr Healy in respect of Dr Liu's proposed flexible work arrangements, and the alleged abusive telephone conversation. These events are said to have occurred sometime between February and May 2022. The other allegation set out in Mr Huey's submissions has insufficient particulars to confidently ascribe any date, or even identify if it is a single or multiple complaints.
  1. [109]
    If one suspends reality for a moment and ignores the fact that these allegations are fraught with deficiencies, the next observation of relevance is their lack of proximity to late October 2022 when Mr Healy sent the GIF.
  1. [110]
    There is no evidence presented by Mr Huey that provides any suggestion that problems between Mr Healy and Dr Liu were evident to him from May to October 2022. Indeed, his 'statement' to WorkCover was given in October 2022 and appeared to be limited to incidents from February to May 2022.  No doubt had Mr Huey been privy to relevant incidents after May 2022, they would have been contained in his 'statement' to WorkCover.
  1. [111]
    While the details of Dr Liu's workers' compensation claim lodged on 25 August 2022 might provide insight into the evidentiary gap, those details are not in evidence in this proceeding. In the absence of any evidence, the Commission will not speculate.
  1. [112]
    The proximity of the last event identified by Mr Huey in (about) May 2022 to the GIF message in October 2022 is far too remote to reasonably infer any connection between those events let alone alter the characterisation of Mr Healy's conduct from innocuous to racist.
  1. [113]
    Consequently it can be concluded that not only is there no reliable evidence of a  'pattern' of improper conduct by Mr Healy, but none of the allegations are sufficiently proximate (in time or subject matter) to the GIF message to create any inference that the dancing orangutan could be objectively construed as a racist slur.
  1. [114]
    For all of the foregoing compelling reasons, the Commission will not hear Mr Huey's appeal.

Conclusion and other observations

  1. [115]
    Mr Huey has failed to demonstrate an arguable case worthy of being heard. His assertion that there was a relevant 'pattern' of conduct by Mr Healy, capable of objectively inferring an offensive characterisation to the GIF, is completely unsupported by the evidence he presented. Beyond that, at the very highest, he is able to point to a technical contravention by the Respondent in failing to formally consider his complaint.
  1. [116]
    But the limited powers of the Commission in reviewing decisions can offer no remedy of any practical utility. There is no point in returning the matter for investigation of conduct that is patently inoffensive. There is even less value in doing so in circumstances where the alleged contravention by the Respondent could have been promptly remedied had Mr Huey been more diligent with prosecuting his complaint.
  1. [117]
    Apart from this summary of the reasons, there are some other matters that ought to be addressed.
  1. [118]
    If read in isolation, these reasons may give the impression that the Commission has dealt with Mr Huey heavy-handedly. Or it may be that some of the language used might give the appearance of frustration seeping through the Commission's otherwise impenetrable judicious façade. Lest there be any misunderstanding to that effect, it ought to be stressed that these reasons did not emerge in a vacuum and there is an important broader context that dictates the tone taken in these reasons.
  1. [119]
    The starting point of that context is to read these reasons in conjunction with the reasons provided in McNeil. Both appeals are inextricably related in respect of most of the material facts. It would appear that Mr Huey and Ms McNeil are the only people familiar with the GIF incident who characterise it as racist and who are convinced of Mr Healy's malevolence. The Commission does not doubt the sincerity with which Mr Huey believes these things. But given the glaring paucity of evidence to support those conclusions, and the objectively inoffensive nature of the GIF, the conduct of Mr Huey and Ms McNeil in pressing these appeals has many of the classic hallmarks of a folie au deux.
  1. [120]
    But more significantly, it is important to note when reading these reasons that before any submissions were filed and any consideration was undertaken by the Commission, Mr Huey was given the benefit of a mention before the Commission on 4 May 2023. At that mention the potential for this outcome was carefully, firmly, but also respectfully explained to him. Specifically, the transcript of that mention (some of which is set out above) confirms that inter alia the limited scope of orders available to Mr Huey and the Commission's concerns were painstakingly explained in a comprehensive and respectful manner.
  1. [121]
    Mr Huey attended by telephone. Nothing about Mr Huey's responses indicated that he was affected by any intellectual deficit and indeed, given the role he performs with the Respondent he was presumed to be both an intelligent and reasonable litigant. In those circumstances it was hoped that Mr Huey, being given the benefit of the Commission's earnest insights, might be convinced to reconsider his appeal rather than put the parties and the Commission to the expense and time of dealing with it.
  1. [122]
    Plainly he was not persuaded by the Commission's observations and, in the face of the Commission's best efforts, Mr Huey decided he would attempt to convince the Commission that he had an arguable case. No criticism can be made of Mr Huey for exercising a right that was plainly his pursuant to s 562A(3) of the IR Act. But there is  a very large difference between having a right and capriciously or unreasonably exercising that right.
  1. [123]
    Mr Huey was insightful enough to identify that a contravention of a directive and a 'pattern' of improper conduct were, at least in theory, valid grounds to advance his appeal. At the mention on 4 May 2023, the Commission was careful to refer to its concerns as 'preliminary' views, being mindful that any final view on the matter could not be reached without hearing Mr Huey's submission about his arguable case. Mr Huey's confident assertions at the mention left the Commission more than willing to expend its valuable time to properly consider his case.
  1. [124]
    The mention on 4 May 2023 was not undertaken to provide a 'sporting' challenge to Mr Huey. It was, in large part, to give Mr Huey the benefit of the Commission's objective insight and importantly, to invite him to reflect on his position. Having read his submissions, there is no evidence that Mr Huey did so. Given the Commission continues to hold the view that Mr Huey is an intelligent person, it is impossible to accept that he truly reflected on the quality of the evidence he intended to rely on.
  1. [125]
    One does not need to be a lawyer to see the problems with the case advanced by Mr Huey. Even in the absence of legal skills, he must be reasonably expected to have some degree of insight. It also cannot be overlooked that Mr Huey served as a union representative and so might further be expected to have elevated levels of insight about evidence necessary to support allegations in workplace disputes, even if only to a small degree beyond the average public servant.
  1. [126]
    The assertion that the GIF was a racist slur is, on the evidence, so thoroughly unsustainable that the most likely explanation for Mr Huey's decision to proceed is that he has done so unreasonably. Whether his emotions have robbed him of objectivity or  whether driven by malice, the cause of his unreasonableness is irrelevant. The problem is that, in doing so, he has caused the Respondent to expend its resources preparing submissions and he has diverted the Commissions resources away from other matters of genuine controversy that are awaiting resolution.
  1. [127]
    Further, the unreasonableness of Mr Huey's decision to proceed is compounded by the fact that, given legal representation is prohibited in Public Sector Appeals, there can be no costs consequences in proceedings of this nature before the Commission.[31]
  1. [128]
    In the face of such obvious unreasonableness, and in circumstances where there will be no consequences for Mr Huey at all, it is an important matter of public interest that these reasons at least partially serve as an admonishment for such wasteful conduct. 
  1. [129]
    Finally, there is an irony not lost on the Commission that, in determining to not hear Mr Huey's matter, a far more complex and time consuming set of reasons has emerged. While this is regrettable, the Commission considers there are public interest factors that warrant this exercise.
  1. [130]
    Public sector appeals were previously dealt with by the Public Service Commission.  They are now exclusively dealt with by the Commission under ch 11 of the IR Act. Further, decisions on such appeals were previously private as between the parties. In more recent years, there has been a practice adopted where the decisions have been published on the Queensland Courts website and are freely accessible by the general public.
  1. [131]
    In those circumstances it can be confidently assumed that the changes legislated for the jurisdiction and disposition of public sector appeals is an indicator that the legislature has begun to regard them as matters of some legal and public consequence. This is juxtaposed with what the Commission has observed to be a less then earnest approach taken by parties, especially appellants, who elect to appeal decisions. At times one gains the impression that the Commission is considered by parties as just 'the next bureaucrat decision maker' in the process. To be fair, this is no doubt a feature of the historical (but now outdated) understanding of public sector appeals amongst some public sector employees.  
  1. [132]
    This decision ought to serve as a cautionary beacon to public sector employees contemplating appeals, or those responsible for responding to them. The Commission is a court of record in Queensland.[32] Once an appeal is filed in the Commission, the Commission will discharge its functions in a manner that inter alia meets all the requirements of natural justice and procedural fairness. But it will also expect matters to proceed efficiently and will be intolerant of any unnecessary waste.  To this end, parties can expect to be held to a standard commensurate to litigants in any other Court.
  1. [133]
    In those circumstances, no party, either an appellant or a responding department, should engage in such appeals in the Commission without a proper degree of circumspection and evaluation of the merits of their respective arguments.   

Use of WorkCover document

  1. [134]
    Mr Huey has repeatedly persisted with what can now only be described as disingenuous assertions that the acceptance of Dr Liu's workers' compensation claim was on the basis that Mr Healy 'bullied' her. The assertion is disingenuous because Mr Huey has been urged (twice) not to make it in circumstances where it was explained to him why it was erroneous. Yet he still persists with it.
  1. [135]
    Mr Huey was expressly advised not to make the assertion by Ms Flewell-Smith in her email in response to Mr Huey's complaint of 28 October 2022. Ms Flewell-Smith carefully and comprehensively explained the complexities around workers' compensation claims, and the danger of conflating the acceptance of a claim with a finding that substantiates bullying allegations. Notwithstanding this, Mr Huey repeated the assertion to the Commission in his Appeal Notice.  
  1. [136]
    At the mention of this matter on 4 May 2023 the Commission addressed this with Mr Huey:[33]

COMMISSIONER: All right. So you make the statement in paragraph 2 of part 7 of your appeal that the Workers Comp decision…concludes an injury caused by bullying and harassment. That's not language that you typically…find as part of a conclusion of a WorkCover decision. Are you privy to the decision by WorkCover in respect of Dr Liu? Have you read and understood the decision?

MR HUEY: No sir, I have not.

COMMISSIONER: All right. So…that's your summation of what you think the outcome of the WorkCover decision was, is that right?

MR HUEY: That is correct, Commissioner, yes.

(Emphasis added)

  1. [137]
    Yet again, seemingly unperturbed by the cautions offered from the Commission about making this unfounded assertion, Mr Huey repeated the assertion in his submissions filed on 31 May 2023. But this time, apparently determined to cast Mr Healy as a bully, Mr Huey provided 'proof'. Or at least, it was what he thought was proof.
  1. [138]
    Following the Commission's counselling on 4 May 2023 at the mention, Mr Huey somehow managed to gain access to a confidential workers' compensation document belonging to Dr Liu and attached it to his submissions.[34]  He now relies on it to 'prove' his bullying allegation.
  1. [139]
    The document in question appears to be a screen shot from a claimant account with WorkCover. It is plainly the account pertaining to a claim made by Dr Liu. The important part (as far as Mr Huey is concerned) is best illustrated by setting it out as it appears in the document:[35]

Claim Summary

Claim number:   (redacted)

Lodged with WorkCover:  25 Aug 2022

Injury and location:  Bullying and harassment

Claim decision:  Accepted

  1. [140]
    For a variety of reasons that follow, the document is not admitted as part of this appeal.
  1. [141]
    To the extent the document contains information about Dr Liu's claim, it can confidently be anticipated that the characterisation of the 'injury' in the document as 'bullying and harassment' is nothing more than a convenient but misleading summary. In fact, taken on face value, it appears to describe an injury of 'bullying' that occurred at a place called 'harassment'.
  1. [142]
    It is trite to observe that 'bullying and harassment' is not a term used to describe any form of recognised injury. It might be a term used to describe an alleged cause of an injury, but it is wholly incorrect as a description of an injury.
  1. [143]
    To be absolutely clear: WorkCover decisions (as opposed to forms like the one set out above) comprehensively set out allegations and evidence. In the case of psychiatric injuries, the decision maker makes conclusions about inter alia whether management action is reasonable or not. They do not a la Enid Blyton, identify individuals as 'bullies' or even characterise conduct as 'bullying and harassment'. Any WorkCover decision maker who purported to express such a view in a decision would be acting ultra vires. The matters relevant to consideration by WorkCover are confined predominately to the elements contained within s 32 of the Workers’ Compensation and Rehabilitation Act 2003 (Qld).
  1. [144]
    In those circumstances, as has been repeatedly explained to Mr Huey, the acceptance of Dr Liu's workers' compensation claim is in no way synonymous with a finding that the Dr Liu's injury was 'caused by bullying and harassment' as he asserts. Mr Huey would be well advised to cease making such statements because they carry harmful inferences about Mr Healy. 
  1. [145]
    Further, the WorkCover document attached as 'WH02' to Mr Huey's submissions is plainly not authored by Mr Huey or Dr Liu and appears to be a short summary of key details of Dr Liu's claim. There is no evidence from the author to explain the rationale behind the entries though logic would dictate that, even without explanation, they are not proof of anything.
  1. [146]
    Apart from the document being inadmissible, there is a more concerning aspect to Mr Huey's tendering of this document.
  1. [147]
    There is no indication as to whether Dr Liu gave Mr Huey permission to access or use a confidential document from her WorkCover file in his own public service appeal. If Dr Liu did not give permission, then Mr Huey should anticipate that he could be disciplined for such misconduct. It is no small thing to breach the confidentiality of an injured colleague, especially when it is for personal purposes.
  1. [148]
    Secondly, even if Dr Liu did give Mr Huey access to her confidential records, one has to wonder on what pretext she was convinced to do so. It begs the question whether Dr Liu knew or knows that giving access to Mr Huey included the use of her confidential document in this public proceeding.
  1. [149]
    Even if Mr Huey did obtain Dr Liu's full permission to access and use her confidential workers' compensation document in these proceedings, that would be (at best) an act that could only be described as selfish and disrespectful to a standard that arguably contravenes the Code of Conduct.  While the Commission can well appreciate that Mr Huey has tendered this document in a (misconceived) attempt to prove that the GIF was sent by Mr Healy as part of a course of offensive conduct, one has to wonder about the genuineness of the concern that Mr Huey professes to have for Dr Liu when he is prepared to impose upon her to expose the confidential details of her workers' compensation claim purely to pursue his narrative that Mr Healy is a 'bully'.
  1. [150]
    The precise circumstances of Mr Huey's acquisition and use of the WorkCover document warrant close consideration by the Respondent. 

Epilogue

  1. [151]
    The Commission has significant sympathy for Dr Liu. She has been dragged into this controversy by two individuals who have purported to act in her interests, but who have for all appearances actually been pursuing their own misconceived or possibly even nefarious agenda against Mr Healy. However well meaning they might profess to be, it would appear that neither Mr Huey nor Ms McNeil gave any thought to the effects of prolonging this roundly unpleasant dispute over the course of more than 12 months, or its very public conclusion in these reasons.
  1. [152]
    It is not difficult to imagine the impact that bringing these appeals and the inevitable delay in conclusions has had on the process of the rebuilding of the relationship between Dr Liu and Mr Healy. Ms Flewell-Smith discussed this in very optimistic terms in her email to Mr Huey on 28 October 2022. Despite the animosity that has no doubt lingered in this workplace over the last 12 months, it is the Commission's sincere hope that process of rebuilding can now continue.    

Order

  1. [153]
    In all of the circumstances, the Commission makes the following order.
  1. Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal. 

Footnotes

[1] [2023] QIRC 308 ('McNeil').

[2] Ibid [2]–[8].

[3] Mr Huey's written submissions filed on 31 May 2023 ('Mr Huey's submissions'), paras. 14–15.

[4] Mr Huey's submissions, attachment 'WH03', pages 4–5.

[5] Mr Huey's submissions, attachment 'WH04', pages 12–13.

[6] McNeil (n 1) [11].

[7] Ibid [14].

[8] Mr Huey's submissions, attachment 'WH06', page 17.

[9] See Industrial Relations Act 2016 (Qld) s 562C.

[10] T 1-5, l 36 – T 1-6, l 14.

[11] McNeil (n 1) [36].

[12] Ibid [52]–[63].

[13] Mr Huey seeks to draw out other technical arguments involving other directives, but they are inconsequential given the broader findings of the Commission in this matter.

[14] T 1-6, ll 16 – 46.

[15] Mr Huey's submissions, attachment 'WH04', pages 12–13.

[16] McNeil (n 1) [12].

[17] Mr Huey's submissions, para. 20.

[18] Mr Huey's submissions, para. 22.

[19] McNeil (n 1) [68].

[20] McNeil (n 1) [87]–[89].

[21] Mr Huey's submissions, para. 7.

[22] Mr Huey's submissions, para. 8.

[23] Mr Huey's submissions, para. 8.

[24] Mr Huey's submissions, attachment 'WH01', page 7.

[25] Mr Huey's submissions, attachment 'WH01', pages 6–7.

[26] See Workers' Compensations and Rehabilitation Act 2003 (Qld) s 32(5).

[27] Mr Huey's submissions, para. 7.

[28] T 1-6, ll 38–42.

[29] McNeil (n 1) [54]–[56].

[30] Ibid [54]–[56].

[31] See s 530A(3) of the IR Act. Though cost orders would be available (subject to the Court’s discretion) where a party has leave to be legally represented and succeed in appeal proceedings regarding a Public Sector Appeal decision before the Industrial Court of Queensland: see State of Queensland v Dodds [2021] ICQ 7.

[32] Industrial Relations Act 2016 (Qld) s 429.

[33] T 1-7, ll 8–20.

[34] Mr Huey's submissions, attachment 'WH02', page 8.

[35] Mr Huey's submissions, attachment 'WH02', page 8.

Close

Editorial Notes

  • Published Case Name:

    Huey v State of Queensland (Electoral Commission of Queensland)

  • Shortened Case Name:

    Huey v State of Queensland (Electoral Commission of Queensland)

  • MNC:

    [2023] QIRC 315

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    03 Nov 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
McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308
2 citations
Jump To
Cite 1 - [2023] QIRC 308
Cite 2 - [2023] QIRC 308
State of Queensland v Dodds [2021] ICQ 7
2 citations
Jump To
Cite 1 - [2021] ICQ 7
Cite 2 - [2021] ICQ 7

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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