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  4. Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) - [2023] QIRC 327

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Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2023] QIRC 327

Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2023] QIRC 327

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2023] QIRC 327

PARTIES:

Sime, Karen

(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO:

PSA/2023/50

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

15 November 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision:

  1. The decision maker's determination to substantiate Allegations 1, 2, 4, 5 and 6 was fair and reasonable.
  1. The decision maker's determination to substantiate Allegation 3 was not fair and reasonable.
  1. Grounds for discipline exist, pursuant to s 91(1)(b) and (g)(ii) of the Public Sector Act 2022 (Qld). The disciplinary finding was fair and reasonable.
  1. Pursuant to Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the service users and the discloser in this appeal are not to be published.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding – allegations of misconduct against the appellant – whether disciplinary findings were fair and reasonable – whether the appellant engaged in the conduct subject of the allegations – where five of the six allegations can be substantiated – where the finding that discipline grounds exist was fair and reasonable

LEGISLATION & OTHER

INSTRUMENTS:

Disability Services Act 2006 s 18

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

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 3, s 4, s 40, s 85, s 86, s 90, s 91, s 132, s 133, s 314

Directive 05/23: Discipline cl 4, cl 7, cl 9

Directive 15/20: Positive Performance Management cl 4, cl 5, cl 6, cl 7, cl 9

CASES:

Ambrey v Oswin [2004] QSC 224

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116

Barker v Queensland Fire and Rescue Authority (2000) QSC 395

Briginshaw v Briginshaw (1938) 60 CLR 336

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

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

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170

Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

Reasons for Decision

  1. [1]
    Ms Karen Sime is employed as a Residential Care Officer (RCO) with the Accommodation Support and Respite Services (the Service).  She works for the Respondent, within the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (the Department) in Ipswich. 
  1. [2]
    For 16 years,[1] Ms Sime was said to have had "an unblemished employment history with the Respondent …"[2] 
  1. [3]
    Allegations of inappropriate physical and verbal workplace conduct were made against Ms Sime, initially through a Public Interest Disclosure (PID). 
  1. [4]
    The alleged incidents involved four separate clients of the Service, and were said to have occurred in the period between 15 April 2022 and 12 June 2022. 
  1. [5]
    Ethical Standards investigated.  Its reported findings, included:[3] 

That investigation found, on available evidence, that Allegations1 a-c, 2 a-c and 3 were capable of being substantiated on the balance of probabilities.  The investigation found, on available evidence, that Allegations 4 a-c were not capable of being substantiated on the balance of probabilities.

  1. [6]
    The decision maker considered the available evidence and determined to accept the investigator's finding that Allegation 4[4] is not capable of being substantiated.  Notably, the decision maker departed from the investigator's finding with respect to Allegation 2(b)[5] because:[6]

… I was not satisfied that the evidence sufficiently depicted malice or inappropriate tone in the delivery of the phrase "You can stay outside until I have cooked your dinner" to imply a punishment.  That example has therefore not been included in the examples detailed in Allegation Four of this letter.

  1. [7]
    With respect to that particular allegation, the decision maker appropriately gave Ms Sime the benefit of the doubt.
  1. [8]
    However, an additional allegation, and further examples of the inappropriate conduct alleged, emerged through the investigation process.
  1. [9]
    A show cause process ensued.  Ms Sime was invited to provide written submissions in response to the various allegations, and did so.
  1. [10]
    The disciplinary finding decision was conveyed to Ms Sime on 10 March 2023,[7] in correspondence from Mr Matthew Lupi, Deputy Director-General, Disability Accommodation, Respite and Forensic Services, Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships (the decision-maker) dated 6 March 2023 (the Decision Letter).[8]  That is the subject of this appeal.
  1. [11]
    The Decision Letter further proposed a disciplinary penalty in the following terms:

  In relation to disciplinary action, I am currently giving serious consideration to:

  • the termination of your employment.

In proposing this penalty, I have given consideration to all the points listed in section 9.5(d) of the Directive 5/23 - Discipline and in particular I noted:

  • the broad range of concerns including the physical and verbal abuse of different clients on different dates which was supported by various witness accounts (both internal and external to the department);
  • the seriousness of your actions which in my view were deliberate departures from accepted standards of client care;
  • your 15 years employment with the department and the expected experience and knowledge you should have accumulated during this time in relation to caring for and interacting with clients; and
  • the fact a number of the substantiated allegations occurred after you were placed on alternative duties following the raising of the initial allegations.

However, in accordance with the principles of natural justice, no final determination on the disciplinary action to be taken against you has, or will be, made until you have had the opportunity to comment on the proposed penalty …[9]

  1. [12]
    On 27 March 2023, Ms Sime filed an appeal against the disciplinary finding decision.  She appointed her union - the Australian Workers' Union (the AWU) - as her representative.
  1. [13]
    On 29 March 2023, I issued a Directions Order to hear the parties and to stay the disciplinary finding decision until the determination of the Appeal or further order of the Commission.[10]

Appeal Grounds

  1. [14]
    Ms Sime's appeal is brought on the following grounds:[11]
  • The decision maker ought not have determined the six allegations were "substantiated", on the balance of probabilities; and
  • The "overall proportionality of the Respondent's proposed disciplinary action of termination."
  1. [15]
    Ms Sime's position is that:

  a. The Appellant denies the allegations;

  b. The Appellant has an unblemished employment history with the Respondent (16 years);

  c. The isolated nature of the incidences, noting that more than half occurred on a singular date (15 April 2022)

  d. The lack of mal-intent on the part of the Appellant in interacting with the Patients;

  e. Contravention of the principles of natural justice by the Respondent attempting to put forward other disciplinary instances not specified;

  f. The lack of proper particulars (dates) provided to the Appellant pursuant to allegation 6;

  g. The lack of proper consideration by the Respondent as to more reasonable forms of disciplinary action as required under s 93(1) of the Public Sector Act 2022 (QLD).[12]

  1. [16]
    My consideration of whether the decision appealed against is fair and reasonable is informed by:
  • whether Ms Sime engaged in the conduct, subject of the six allegations;
  • whether the alleged conduct constitutes 'misconduct' within the meaning of s 91(5) of the Public Sector Act 2022 (Qld) (PS Act), with respect to allegations 1 to 5;
  • whether the alleged conduct constitutes a contravention of a provision of another Act that applies to Ms Sime in relation to her employment 'without reasonable excuse' within the meaning of s 91(1)(g)(ii) of the PS Act, with respect to allegation 6;
  • whether the chief executive is "reasonably satisfied" that a discipline ground has been established (as the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made);
  • whether Ms Sime was afforded procedural fairness;
  • whether the disciplinary finding was fair and reasonable.
  1. [17]
    My determinations may be summarised as follows:
  • The decision maker's determination to substantiate five of the six allegations was fair and reasonable because the conduct alleged did occur, on the balance of probabilities.
  • It was fair and reasonable for the decision maker to conclude that Ms Sime has "been guilty of misconduct," with respect to four allegations.
  • It was fair and reasonable for the decision maker to conclude that Ms Sime has contravened a provision of another Act that applies to her employment "without reasonable excuse", with respect to allegation 6.
  • The chief executive is "reasonably satisfied" that the disciplinary grounds exists. 
  • The process followed by the decision maker did afford Ms Sime natural justice and procedural fairness.
  • The finding that discipline grounds exist was fair and reasonable.
  • The proposed disciplinary action of termination of employment cannot be appealed at this time because a "decision" is yet to be made.

Jurisdiction

  1. [18]
    At the time the Appeal was filed on 27 March 2023, the relevant legislation was the new PS Act. 
  1. [19]
    The new Act was effective from 1 March 2023, when the former Public Service Act 2008 (Qld) was repealed.
  1. [20]
    The new Act contains a transitional provision that provides it "applies in relation to a disciplinary ground whether the disciplinary ground arises before or after the commencement."[13] That means that this appeal must be decided under the new PS Act.
  1. [21]
    Section 132(4)(b) of the PS Act provides that a person can appeal against a finding that a disciplinary ground exists for the person under s 91.
  1. [22]
    Section 133 of the PS Act outlines who may appeal the decision - a public sector employee aggrieved by the decision.  As an employee of the Respondent, Ms Sime is eligible to appeal.
  1. [23]
    I am satisfied that the disciplinary finding decision made pertaining to Ms Sime, contained in the Decision Letter dated 6 March 2023, can be appealed. 
  1. [24]
    The proposed disciplinary penalty of termination cannot be appealed at this time.  A 'proposal' is not a 'decision'.  The show cause process is yet to run its course to a final determination regarding any disciplinary action to be imposed. 
  1. [25]
    I have included the relevant extracts of the PS Act below.

Timeframe to Appeal

  1. [26]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [27]
    The decision was given to Ms Sime on 10 March 2023. 
  1. [28]
    The Appeal Notice was filed with the Industrial Registry on 27 March 2023.
  1. [29]
    I am satisfied that the Appeal was filed by Ms Sime within the required timeframe.

Appeal principles

  1. [30]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[14]  That is the question for my determination. 
  1. [31]
    A public service appeal under the IR Act is not by way of rehearing,[15] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  1. [32]
    Findings made by the decision maker which are reasonably open to them, should not be disturbed on appeal. 
  1. [33]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [34]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  • confirm the decision appealed against; or
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [35]
    In accordance with the Directions Order issued on 29 March 2023, the parties filed written submissions.
  1. [36]
    The Appellant's Submissions were filed on 5 April 2023.
  1. [37]
    The Respondent's Submissions were filed on 12 April 2023, along with several attachments:[16]

Attachment

Documents

1

Summary of Appellant's arguments

2

Notice to show cause on discipline finding dated 26 October 2022

3

Response to notice to show cause on discipline finding (21 November 2022)

4

Further opportunity to respond to Allegation Six dated 16 December 2022

5

Response to Allegation Six dated 6 January 2023

6

Notice to show cause on disciplinary action dated 6 March 2023

7

Discloser's email of resignation

  1. [38]
    The Appellant's Reply Submissions were filed on 19 April 2023.  Attached to those submissions were:

Date

Description

23 & 27 June 2022

Email exchange between Ethical Standards and QPS, seeking an update on the police investigation

14 March 2023

Email exchange between Ms Sime and her former manager for 5 years, in which the later confirmed that she "… was not privileged to any concerns raised in regard to your support to clients."

13 March 2023

Correspondence from another of Ms Sime's former managers, stating that in the 7 year period of their work together the Appellant was "… a strong advocate within the workplace.  There were no reports of verbal or physical abuse from clients or co-workers she worked with."

  1. [39]
    The Appeal Notice was filed 27 March 2023 and contained the following attachments:[17]

Attachment

Date

Description

KS-01

26 October 2022

Show Cause Notice - Liability for Discipline Findings

This letter set out 6 Allegations for Ms Sime's response within 14 days of receipt and confirmed that "A copy of all documentation to be considered in connection with the allegations is enclosed."

KS-02

21 November 2022

Ms Sime's Response to First Show Cause Notice

With respect to Allegation 6, Ms Sime stated "This allegation has never been presented to me prior to receipt of this letter and therefore I have not attached a response to this allegation as I am unsure of my requirements in relation to this allegation.  Could you please notify me as soon as possible of my requirements."

KS-03

16 December 2022

Opportunity for Further Response

Ms Sime was provided with a further opportunity to provide a response to Allegation 6. 

The correspondence dated 16 December 2022 explained that Allegation 6 had arisen because "As part of an investigation, further information may come to light and this information may result in additional allegations being formulated.  On receipt of the investigation report and its attachments, Ms McMullin noted claims alleging that you had not allowed [Mr C], departmental client to watch television in his home.  Ms McMullin was of the view that, if this allegation was proven, it could constitute grounds for discipline under the Public Service Act 2008.  As such, the allegation was particularised in the correspondence to you dated 26 October 2022, and you were given the opportunity, as part of the natural justice process, to provide any information you may have deemed relevant in response to the allegation."

In terms of the time permitted for Ms Sime to provide such "Further Response", it was stated that "Given the upcoming Christmas compulsory closure period for non-shift workers, I afford you the opportunity to respond by close of business, Friday, 6 January 2023."

KS-04

6 January 2023

Ms Sime's Further Response to Allegation 6

KS-05

6 March 2023

Show Cause Notice - Decision on Disciplinary Findings and Proposed Disciplinary Action

I note with approval that the department determined that "… delivery of this correspondence was held in abeyance until after your return from leave on 28 February 2023."

That correspondence explained the disciplinary findings made on each of the six allegations.  Having determined that discipline grounds exist, Mr Lupi's correspondence explained that he was now considering whether disciplinary action should be imposed against Ms Sime.  Mr Lupi stated that he was "currently giving serious consideration to: the termination of your employment" and the factors he had noted in arriving at that proposed action.

However, Mr Lupi concluded with the assurance that "…in accordance with the principles of natural justice, no final determination on the disciplinary action to be taken against you has, or will be, made until you have had the opportunity to comment on the proposed penalty.  Accordingly, you are hereby afforded a period of seven (7) days from the date of your receipt of this letter to make submissions to me in relation to the proposed disciplinary action."  He proceeded to set out some relevant considerations that Ms Sime may wish to address in her response to the proposed disciplinary action.

  1. [40]
    I have carefully considered all submissions and materials.  I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' positions in my consideration of each question to be decided.

Outcome sought - Determination of Appeal

  1. [41]
    The Respondent asked the Commission to confirm the findings because "the decision maker's decisions were fair and reasonable" and to dismiss the appeal.
  1. [42]
    The Appellant asked the Commission to "set aside completely" the Respondent's decision to substantiate the six allegations - or alternatively, to substitute it "with another decision to undertake management action and/or implement a final warning as the appropriate course."[18]

Outcome sought - Suppression Order

  1. [43]
    The Respondent also asked the Commission to order that "any publication arising from this proceeding not disclose the name of the service user, nor the discloser."  It submitted that:

The service users are vulnerable persons with intellectual difficulties who are in the care of the Queensland Government.  It is not in the public interest to disclose the persons' names or any identifying details of the persons.

The initial report has been identified as a Public Interest Disclosure (PID) and as such the Department has an obligation to do all things reasonable to protect the identity of the discloser.  The fact that the Appellant became aware of their identity arises from the nature of the allegations.  However, it is not in the public interest for a person making a PID to be named in these proceedings.[19]

  1. [44]
    The Appellant did not object to the Respondent's request for orders to suppress the names of the discloser and departmental clients.[20]
  1. [45]
    The Respondent's arguments are clear and persuasive, so I will order suppression in the terms sought.
  1. [46]
    For the reasons set above, pursuant to r 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names or identifying details of the service users and the discloser will be suppressed in any publication of this decision.

Relevant provisions of the PS Act

  1. [47]
    The main purpose of the PS Act is:

… to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.[21]

  1. [48]
    How that is primarily achieved is set out at s 4 of the PS Act, including (emphasis added):

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by —

 …

  1. creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by-

 (i) providing for the key rights, obligations and employment arrangements of public sector employees; and

 …

 (v) ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

 (vi) setting a positive performance management framework for public sector employees; and

 (vii) fixing principles to guide public sector managers and the work performance and personal conduct of public sector employees; and

 …

  1. establishing a high-performing, apolitical public sector by effective stewardship that-

…

  1. ensures public resources are managed efficiently and their use is accountable.
  1. [49]
    Section 40 of the PS Act relevantly provides as follows:
  1. In recognition that public sector employment involves a public trust, the work performance and personal conduct of each public sector employee should be guided by the following principles (the work performance and personal conduct principles)—
  1. achieving excellence in service delivery;
  1. ensuring the effective, efficient and appropriate use of public resources;
  1. giving effect to government policies and priorities;
  1. collaborating with other public sector entities with a focus on public sector-wide priorities in addition to priorities specific to particular public sector entities, if appropriate and while recognising the need for independence of particular public sector entities;
  1. providing sound and impartial advice to government;
  1. continuously improving work performance, including through training and development;
  1. carrying out duties impartially and with integrity;
  1. acting honestly, fairly and in the public interest;
  1. interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity;
  1. observing all laws relevant to the employment;
  1. ensuring the employee's personal conduct does not reflect adversely on the reputation of the public sector entity in which the employee is employed;
  1. observing the ethics principles under the Public Sector Ethics Act 1994, section 4;
  1. complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18.
  1. A public sector manager must take all reasonable steps to ensure each public sector employee under the manager's management is aware of the following matters—
  1. the work performance and personal conduct expected of the employee;
  1. the public sector principles;
  1. the values of the public sector entity in which the employee is employed;
  1. for a public service employee—the values of the public service;
  1. what constitutes corrupt conduct under the Crime and Corruption Act 2001.
  1. Also, a public sector manager must—
  1. provide working environments in which all public sector employees are—
  1. treated fairly and reasonably; and
  1. assigned work according to the employee's responsibilities as reflected in remuneration rates; and
  1. consider and give effect to the following matters when undertaking management responsibilities—
  1. the public sector principles;
  1. the values of the public sector entity in which the employee is employed;
  1. if the manager is a public service employee—the values of the public service; and
  1. ensure fairness and integrity in performing managerial functions, including when making decisions; and
  1. undertake best practice human resource management, including the application of the positive performance management principles in the following ways—
  1. pro-actively managing the work performance and personal conduct of public sector employees;
  1. constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector;
  1. taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises; and
  1. take personal responsibility for development as a manager.
  1. A chief executive of a public sector entity has overall responsibility for—
  1. ensuring the entity performs its functions in a way consistent with—
  1. the main purpose of the Act; and
  1. the ways in which the main purpose of the Act is to be primarily achieved; and
  1. the public sector principles; and
  1. ensuring managers within the entity perform managerial functions in accordance with the positive performance management principles; and
  1. ensuring public sector employees have access to fair and independent reviews and appeals; and
  1. ensuring the entity has workforce and human resource planning and practices, including systems for the regular review of employment arrangements for public sector employees.

  Note—

If the chief executive is an accountable officer under the Financial Accountability Act 2009, see also the responsibility of the chief executive to develop the strategic plan and operational plan under the Financial and Performance Management Standard 2019, section 8.

  1. [50]
    Sections 85 and 86 of the PS Act relevantly provides as follows:

85 Positive performance management principles

 (1) For best practice human resource management and in recognition that public sector employees are selected based on recruitment and selection processes under chapter 3, part 3, the management of public sector employees must be directed towards the following principles (positive performance management principles)—

  1. pro-actively managing the professional and personal development of public sector employees with a view to continuously building expertise within the public sector;
  1. ensuring regular and constructive communication between public sector managers and employees about the work performance and personal conduct principles;
  1. recognising the strengths, requirements and circumstances of individual employees and valuing their contributions;
  1. recognising performance that meets or exceeds expectations;
  1. providing opportunities and support to employees for improving performance;
  1. continuously improving performance through the provision of training and development;
  1. identifying at the earliest possible stage performance that does not meet expectations;
  1. integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

 (2) The commissioner must make a directive about how the positive performance management principles are to be applied.

86 Requirement to apply positive performance management principles before taking disciplinary action

A public sector employee's chief executive must not take disciplinary action against the employee for a matter relating to the employee's performance until the chief executive has complied with a directive made under section 85(2) about applying the positive performance management principles in relation to the matter.

  1. [51]
    Section 90 of the PS Act defines the following terms (emphasis added):

disciplinary finding means a finding that a disciplinary ground exists.

disciplinary ground means a ground for disciplining a public sector employee under section 91.

  1. [52]
    Section 91 of the PS Act relevantly provides as follows:
  1. A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

 …

 (b) been guilty of misconduct; or

 …

 (g) contravened, without reasonable excuse, a provision of—

  (i) this Act, other than section 39 or 40; or

  (ii) another Act that applies to the employee in relation to the employee's employment; or

 …

  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  1. To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  1. In this section—

 misconduct means—

 (a) inappropriate or improper conduct in an official capacity; or

 (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

 Example of misconduct—

 victimising another public sector employee in the course of the other employee's employment in the public sector

 Relevant provisions of the Directives

  1. [53]
    Directive 05/23: Discipline (Discipline Directive) relevantly provides:

4.  Principles

…

4.2  Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.

4.3  Under the Human Rights Act 2019 decision makers have an obligation to:

 a.  act and make decisions in a way that is compatible with human rights, and

 b.  give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

…

4.7  A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:

a.  the end of unacceptable conduct

b.  early resolution

c.  preserving working relationships

d.  avoiding an unnecessary and disproportionately protracted dispute

4.8  Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

4.9  A chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until they have complied with the positive performance management directive in relation to the matter.

4.10  Discipline under chapter 3 of the Act must:

 a.  be conducted in in a timely way, to the extent that is within the control of the chief executive, and without any unreasonable unexplained delay, and

 b. be fair, appropriate and proportionate to the seriousness of the work performance matter, and

 c.  comply with the requirements of the Act, the provisions of this directive and the

   principles of procedural fairness

…

7.  Requirements to commence a discipline process

7.1  Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

7.2  Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

 a.  the seriousness of the employee's personal conduct and/or work performance, and

 b.  whether the matter should be resolved through management action instead, and

 c.  whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and

 d.  whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and

 e.   whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and

 f.  if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and

 g.  whether further information is required to make a decision to commence a disciplinary process, and

 h.  for a breach of relevant standard of conduct under section 91(1)(h) , that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

7.3  Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.

9.  Discipline process

…

9.3  Show cause process for disciplinary finding

 a.  the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)

 b.  written details of each allegation in clause 9.3(a) must include:

  i.  the allegation

  ii.  the particulars of the facts considered by the chief executive for the allegation

  iii.  the disciplinary ground under section 91 of the Act that applies to the allegation

 c.  when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation

 d.  a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence

 e.  the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension

 f.  if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

…

  1. [54]
    Directive 15/20: Positive Performance Management (PPM Directive) relevantly provides:

 4 Principles

 …

 4.3 Management of all employees must be directed towards the positive performance principles in section 25A of the PS Act.

 4.4 Timely, open and regular, constructive communication is the mutual responsibility of managers and employees, who should work together to improve work performance outcomes.

 4.5 Section 26 of the PS Act requires managers to proactively manage employees' work performance and to take prompt and appropriate action if unacceptable work performance arises.

 4.6 Section 186C of the PS Act requires a chief executive to apply positive performance management principles before taking disciplinary action for work performance.

 4.7 Under the Human Rights Act 2019, decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

 5 Positive performance management

 5.1 Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles:

  …

  (e) providing opportunities and support to employees for improving performance

  (f) continuously improving performance through the provision of training and development

  (g) identifying at the earliest possible stage performance that does not meet expectations

  (h) integrating the matters mentioned in paragraphs (a) to (g) into management policies and practices.

 5.2 Chief executives are required to integrate the positive performance management principles into their agency's management practices and policies.

 5.3 Managers are required to incorporate the positive performance management principles into their management practices.

 6 Processes for managing employee work performance

  Positive performance management

 6.1 Agencies must incorporate the positive performance management principles and the processes detailed in clauses 5.1 - 5.3 into their policies and processes about managing employee work performance to ensure:

  (a) managers set clear expected outcomes linked to organisational performance objectives and plans, including through the use of performance development agreements in lined with agency policies

  (b) managers provide regular and constructive feedback on an employee's work performance, including recognising work performance that meets and exceeds expectations, and feedback on areas of work performance that need improvement, as is appropriate in the circumstances

  (c) managers promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct

  (d) constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector.

 7 Decision to commence a structured process to manager unacceptable work performance in a supportive way

 7.1 The process for managing unacceptable work performance must be supportive, directed to the positive performance management principles, and take into account factors (work related and non-work related) that may be affecting the employee:

  …

 7.2 The chief executive may initiate a performance improvement plan (PIP) as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.

 7.3 Prior to determining whether it is fair and reasonable to initiate a PIP, the chief  executive must ensure the following conditions have been met:

  (a) the expected level of work performance for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance

  (b) the expected level of work performance was relevant and appropriate to the role

  (c) the unacceptable work performance or the gap between actual and expected work performance was previously raised, documented and discussed with the employee

  (d) the employee was offered appropriate support and allowed a reasonable period of time to self-correct.

 …

 9 Definitions

Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, poor work performance or unacceptable behaviours at the earliest possible opportunity.

Standard of proof

  1. [55]
    The decision maker determined to substantiate the six allegations on the 'balance of probabilities'.  The wording of Briginshaw v Briginshaw ('Briginshaw')[22] is incorporated into the Disciplinary Directive, and there is no contention that said principle does not apply in this instance. 
  1. [56]
    The Discipline Directive prescribes that:

 … For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.[23]
  1. [57]
    In civil matters, the standard of proof is the balance of probabilities.[24]  The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed.  As explained by Dixon J in Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences …

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[25]

  1. [58]
    It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur.  It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'.  Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence.  In Chamberlain v The Queen (No 2)[26] Gibbs CJ and Mason J provided:

When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …[27]

Did Ms Sime engage in the conduct, subject of the six allegations?

  1. [59]
    I will now consider whether the decision maker's determination to substantiate the six allegations was fair and reasonable.
  1. [60]
    The Appellant's appeal was brought on grounds including that it was not open to the decision maker to substantiate the allegations against her because: the events did not occur; she had a lengthy and unblemished disciplinary record; there was no reason to prefer the evidence of other people over hers in the absence of corroboration; and that others interviewed were unreliable.
  1. [61]
    The Respondent's submissions are persuasive in countering each of these arguments, asserting that:
  • The decision maker considered all the evidence and alternative arguments put by Ms Sime in correspondence dated 6 March 2023.[28]
  • The allegations were numerous and raised by four separate individuals, including the discloser, support workers and a client's family member.[29]
  • Ms Sime provided no credible reasons why those people would fabricate allegations against her.[30] 
  • The discloser made the allegations for legitimate reasons.  Ms Sime had more to gain from denying the allegations than the discloser (or other witnesses) would from making false claims.[31]
  • Having considered the material, the decision maker concluded that the discloser, support workers and the family member of the client were credible witnesses.[32]
  • "… the initial allegations extended beyond those found by the decision maker and in considering the evidence before him he exercised his discretion to no substantiate a number of similar type elements/events."[33]
  • The decision maker considered the documented telephone conversations with the discloser that occurred shortly after the alleged events to be contemporaneous record of their version of events.[34]
  1. [62]
    The Respondent appropriately noted that the "Lack of corroboration for the events is not sufficient reason to disturb the decision."[35]
  1. [63]
    Further, the Respondent observed that "… an employment history with no past recorded conduct is not a shield,"[36] with reference to a recent Commission decision in Newman v State of Queensland (Queensland Police Service).[37]
  1. [64]
    The decision maker's correspondence explained 'why' the evidence of one witness was preferred over the other and contained careful analysis of the available material and set out conclusions on the various findings.  The elements of the show cause notice dated 6 March 2023 are comprehensive and clear. 
  1. [65]
    While the Appellant has made valiant attempts to challenge the decision maker's findings on the grounds set out in [60] and resorted to the last bastion of 'further and better particulars', those arguments have been addressed in the show cause correspondence and the Respondent's submissions.
  1. [66]
    I have found the decision maker's determination to substantiate five of the six allegations against Ms Sime to be fair and reasonable. 

Allegation 1

ALLEGATION ONE

On 15 April 2022, you engaged in inappropriate physical conduct toward a client or clients when you slapped the legs of [Ms A], client and [Mr B], client when you assisted them to transfer.

  1. [67]
    Ms Sime denied "all claims of physical abuse of [Ms A] and [Mr B]"[38] and asserted that:
  • Inconsistent terms such as "slap", "tap", "hit" and "flick" were used in the discloser's account.
  • The discloser "may or may not have actually witnessed, that is actually physically saw with (their) own eyes, the inappropriate physical conduct alleged".
  • The discloser was suspended from duty in August / September 2022 and is no longer employed with the Respondent.
  • The discloser "routinely made several complaints" against other staff without justification.
  • The Appellant had an unblemished disciplinary record and so questioned why she would begin exhibiting inappropriate conduct after such a lengthy period of employment.[39]
  1. [68]
    The Respondent submitted that:
  • "… the discloser consistently used "slap" or slapping" in their written account and in conversations with Ms Romic and Ms McMullin and it was only after the discloser was asked to describe the slap/ping that they used other terms.  The decision maker did not believe that the discloser's use of different terms was proof that the discloser was fabricating their claim."[40]
  • The decision maker concluded that the discloser witnessed the events firsthand because they "described holding one of the clients and assisting the Appellant to transfer at the time of the interaction".  The discloser further stated in their Client Report Form (CRF) that they had "observed" a number of interactions between Ms Sime and three clients, including one where Ms Sime slapped the feet and legs and two separate clients.[41]
  • The discloser was not suspended or disciplined, but was instead absent due to a work injury in September 2022.
  • The Respondent has no record of the discloser making any other complaints against other staff.
  • The discloser did not leave the employ of the Respondent on unfavourable terms but instead left for family reasons.[42]
  • "… since the commencement of the Disability Royal Commission the Respondent has invested significant resources and training in relation to the prevention of abuse, neglect and exploitation of clients.  This has resulted in new and existing employees having a keen awareness of what constitutes such abuse and, their obligation to report such events.  Regardless of the Appellant's employment history, it was entirely appropriate for the discloser to report the allegations."[43]
  1. [69]
    The decision maker comprehensively explained and elaborated his reasoning in the show cause correspondence to Ms Sime dated 6 March 2023.[44]
  1. [70]
    Further, the Respondent's submissions have effectively refuted Ms Sime's claims as to why the allegation ought not to have been substantiated.  Where the Appellant had attempted to discredit the discloser's account, the Respondent has found no evidence to support such contentions.  It was open to the decision maker to find that Ms Sime had slapped clients' feet and legs, where such interactions had been observed by the discloser. 
  1. [71]
    I am satisfied that the decision maker considered the Appellant's submission as to the inconsistent terms used for 'slapping' and accept that it was only after the discloser was asked to describe the action that they used other terms.

Allegation 2

ALLEGATION TWO

On 15 April 2022, you engaged in inappropriate physical conduct toward a client when you pushed [Mr C], client in the middle of his back.

  1. [72]
    Ms Sime denied this allegation[45] and asserted that:
  • The discloser inaccurately recounted the facts in relation to Mr C going outside, and as a result the discloser may be guilty of misconduct;
  • The discloser gave different accounts of 'when' the alleged push incident was said to have occurred.  Despite acknowledging the inconsistencies, the allegation was nevertheless substantiated.[46]
  1. [73]
    The Respondent submitted that:
  • "… both the discloser and Ms Sime were on shift from 7 am and both were charged with client care … There is no evidence that the client was wet, unclothed or unsupervised while outside."  A RCO may ask or encourage a client to come inside, however whether or not to do so is a matter of client choice.[47]
  • "The core premise put forward by (the discloser) is that (they) witnessed you push [Mr C] in the back to get him inside and this premise has carried through in all (the discloser's) accounts.  However, having reviewed the material, the specific circumstances of how and when this may have occurred are unclear.  (The discloser) was open at interview that they could not recall some details associated with their CRF and given the time that had elapsed between the incidents and the interview, that is understandable … I view (the discloser) as a credible witness who had more to lose than gain from making claims against (Ms Sime).  Further, I noted that the allegation that you pushed [Mr C] is in the same vein as other inappropriate conduct (the discloser) says (they) witnessed and it aligns with the claim that permeated throughout (the discloser's) accounts that you repeatedly told (them) that (they) was too soft with clients and that (they) needed to go in hard."[48]  The decision maker concluded that "there appeared to be two instances during the day when [Mr C] has not wanted to come inside the house" but where it was necessary for him to do so.  "Given this, it is therefore conceivable that, a RCO with a reported attitude of control and an authoritative approach may have resorted to physical contact to forcibly move [Mr C] inside the house."[49]
  1. [74]
    The decision maker comprehensively explained and elaborated his reasoning in the show cause correspondence to Ms Sime dated 6 March 2023.[50]
  1. [75]
    It was open to the decision maker to find that Ms Sime had pushed Mr C in the middle of his back as alleged, on the balance of probabilities.  In terms of the Appellant's claim of "inconsistent accounts" provided by the discloser, the decision maker has sensibly reasoned that "Having take the time to consider all the material associated with this allegation, I am of the view that there were likely two instances during the day when (the discloser) has witnessed a colleague or colleagues physically attempt to move [Mr C] inside the house.  I am also of the view that given the heightened day, the number of issues of concern and, the time elapsed between the day in question and (the discloser's) interview, (the discloser) confused the morning and evening incidents."[51] 
  1. [76]
    In considering whether it was more probable than not that this event occurred as alleged, the fact of the discloser's contemporaneous account to Ms McMullin is relevant. 
  1. [77]
    Further, I note that Ms Kelly's account to the investigator with respect to allegation five also included that Ms Sime would "… sort of open the gate and say alright, not push him out the gate but just have a hand on his back and say, see you, don't come back …"[52]  That is similar to that alleged here.

Allegation 3

ALLEGATION THREE

On 9 June 2022, you engaged in inappropriate physical conduct by forcibly placing your hands on [Mr C]'s lips and attempted to look inside [Mr C]'s mouth.

  1. [78]
    Ms Sime denied this allegation[53] and asserted that:
  • The decision maker substantiated this allegation using contrary reasoning to that adopted for allegation one.  That is, with respect to allegation three, the decision maker considered Mr C's aunt's claim was credible because if she "had made a false claim, it would not likely have been so detailed in nature and included such minor descriptive comments …"  Conversely though, with respect to allegation one, the decision maker considered "the fact that the witness could not remember such details rendered their account 'credible' by virtue of the 'fallibility of their memory'."[54] 
  • Mr C's aunt and Mr Murchie were targeting her because they did not like her.[55]
  1. [79]
    The Respondent submitted that while Ms Sime had raised some "inconsistencies between the discloser's contemporaneous accounts and their interview some 10 weeks later … the decision maker could see no reason for [Mr C's aunt] to have made a false claim and [Mr C's aunt]'s account clearly depicted a logical sequence of events which included logical descriptions of causality that, on balance, were unlikely to have been fabricated."[56] 
  1. [80]
    However, I note that the witness relevant to this particular allegation was Mr C's aunt - not the discloser.  Therefore the Respondent's reasoning as to why there were some inconsistencies in the discloser's accounts of events is not relevant here. 
  1. [81]
    With respect to this allegation only, I do not consider it was fair and reasonable for the decision maker to determine to substantiate it because he saw "no reason for [Mr C's aunt] to have wanted to make a false claim against you,"[57] for the following reasons.
  1. [82]
    Mr C's aunt told the investigator that she had sent the email on 13 June 2022 containing the allegation after receiving a telephone call from Mr Murchie saying he had found Mr C locked out of the house.  Mr C's aunt stated "… And it was then that I went, I even went to my husband, that's what it was.  I heard the double lock.  She locked him out.  That's not right.  That's what's been niggling me.  And that consequently was why I wrote the thing, because, how many times has he been locked out, that they haven't been telling me about …"  Ms Sime asserted that "I don't feel that this statement supports [Mr C's aunt]'s claim that I placed my hands on [Mr C]'s lips and attempted to look inside his mouth.  Mr C's aunt indicated that this was a very serious incident that allegedly occurred, yet she didn't report it immediately to management.  Her own statement indicates that she only sent the email after talking to Mr Murchie and only because of the assumption / accusation I had locked [Mr C] outside the house.  That appears to be the trigger for [Mr C's aunt]'s email, not the allegation of inappropriate physical contact.  To be clear, ESU have established the allegations made by Mr Murchie and [Mr C's aunt] of me locking [Mr C] out of the house - are unable to be substantiated."[58] 
  1. [83]
    At interview, Mr C's aunt admitted that she did not like Ms Sime, saying: "And I got home and I spoke to my husband and I just said to him, I just don't like her…"[59]  I appreciate that Mr C's aunt may not have liked Ms Sime because she thought she locked Mr C out of the house.  While ESU was not able to substantiate that particular allegation, it does provide a cogent reason why Mr C's aunt may have provided such account.
  1. [84]
    I agree with the Appellant's submission that the decision maker's use of contrary reasoning about witness recollections over time in order to substantiate both allegations one and three is inconsistent.
  1. [85]
    The incident was unable to be confirmed by the other support worker rostered on at the relevant time, Mr Stumer.  The decision maker noted that "It was evident from the material that Mr Stumer was not present during [Mr C's aunt] stated interaction between you and [Mr C] and therefore I am of the view that Mr Stumer's lack of recollection of the incident does not definitively support or otherwise the incident in question."[60]
  1. [86]
    For all those reasons, I cannot be satisfied to the required standard that Ms Sime engaged in the conduct subject of this particular allegation. 
  1. [87]
    Notwithstanding the decision maker comprehensively explained and elaborated his reasoning in the show cause correspondence to Ms Sime dated 6 March 2023,[61] I do not agree that it was fair and reasonable to conclude that this allegation be substantiated.
  1. [88]
    I find that allegation three is not substantiated, on the balance of probabilities.

Allegation 4

   ALLEGATION FOUR

On, but not limited to, 15 April 2022, you engaged in in appropriate verbal and non-verbal conduct toward a client or clients.  For example (but not limited to):

  1. Speaking disrespectfully to clients, by using phrases to the effect of, "Don't you dare" and "What do you think you are doing?";
  2. Stating to [Mr C], client words to the effect of, "Don't you fucking hit me";
  3. Pointing your finger at [Mr C]'s face and yelling multiple times, "Don't do that", "Come in here", "Sit down" and "Move!";
  4. Telling [Mr D], client, "Don't fucking touch me";
  5. Poking your tongue at [Mr C];
  6. Telling [Ms A], client, to "shut up"; and
  7. Yelling at [Mr C] to stop banging.
  1. [89]
    Ms Sime denied this allegation.[62]  She asserted that in finding the allegation to be substantiated, the decision maker relied on the discloser's account alone.[63]
  1. [90]
    The Respondent submitted that in circumstances where it was one person's word against the other's, the decision maker was required to "consider all the facts and evidence to determine, on the balance of probabilities, whether the incident is more likely to have occurred in the manner alleged."[64]  That includes making an assessment the credibility of the discloser and Ms Sime.  "In relation to the discloser, the decision maker could see no reason, benefit or gain for them to have made false or vexatious claims against the Appellant, particularly claims as serious as the ones alleged.  Further, by making the allegations, the discloser risked being ostracised by the Appellant and her colleagues …"  "The decision maker was of the view that the Appellant had more to gain from denying the allegations than the discloser would from making false claims and that the discloser reported the allegations for legitimate reasons.  Having considered the material the decision maker was of the view that the discloser was a credible witness."[65]
  1. [91]
    The decision maker comprehensively explained and elaborated his reasoning in the show cause correspondence to Ms Sime dated 6 March 2023.[66]
  1. [92]
    I consider the decision maker's reasoning to be sound, with respect to his assessment of the respective credibility of Ms Sime and the discloser.  In the particular circumstances, I find it was reasonably open to the decision maker to substantiate this allegation.

Allegation 5

ALLEGATION FIVE

On 12 June 2022 and other unknown dates, you engaged in psychological/emotional abuse by saying words to the effect of, "Don't bring him home early" and/or "don't come back" towards, and/or in the presence of, and/or in relation to, [Mr C], client.

  1. [93]
    Ms Sime submitted that the substantiation of this allegation was unfair and unreasonable because the decision maker "had given absolutely no consideration to the Appellant's show cause response and the contextual circumstances that preceded this conversation".[67]
  1. [94]
    Ms Sime explained that whilst she did "originally state 'I deny the conversation' with Mr Murchie I correct this immediately with 'the allegations' - meaning locking [Mr C] out of house and that I was disrespectful."  Further, Ms Sime clarified that:

I do not agree with the content of the conversation we had.  Mr Murchie indicates he stated multiple times that he would bring [Mr C] home if he wanted to as it was his home.  I disagree that any of these comments were made.

I stand by my denial of my comment being disrespectful.  Upon reflection, yes I agree that it was not appropriate to speak in front of [Mr C], and I have taken this on board and will learn from it.  I maintain that it was not said in a disrespectful manner though.  My mind was focusing on the potential impacts if [Mr C] was returned early, for all clients, including [Mr C] and staff at the house.  [Mr C] had been unsettled that morning and had pulled the hair of clients prior to Mr Murchie arriving.[68]

  1. [95]
    The Respondent submitted that the decision maker did give consideration to Ms Sime's show cause response "in relation to their concern that the client's early return could potentially negatively impact on other house clients …"[69]  While Ms Sime admitted to making such comment at interview, she denied that it was disrespectful.  Ms Sime then went on to acknowledge that, upon reflection, it was not appropriate to speak in front of Mr C and that she has taken this on board and will learn from it.  The decision maker noted that two of Ms Sime's colleagues stated that she had said words to that effect about Mr C in front of him, and that both support workers had told the investigator that Mr C was visibly upset by Ms Sime's comments.[70]
  1. [96]
    The decision maker comprehensively explained and elaborated his reasoning in the show cause correspondence to Ms Sime dated 6 March 2023.[71]
  1. [97]
    I consider the decision maker's reasoning to be sound, with respect to finding this allegation to be substantiated.  Ms Sime admitted the comment but denied it was disrespectful.  However, Ms Sime then went on to accept that her comment was not appropriate and that she would learn from it.  That is clear acknowledgement that there was inappropriate conduct on the Appellant's part, as it was "something to learn from".

Allegation 6

ALLEGATION SIX

It is alleged that on unknown dates you failed to comply with the provisions of the Disability Services Act 2006 by not allowing [Mr C], client to watch television in his home.

  1. [98]
    Ms Sime denied this allegation and complained it was not sufficiently particularised.[72]  She said:

The statement of clients not being allowed to watch television is false.  The radio might be on, but clients are given the choice of TV or radio.  [The Discloser]'s statement that clients aren't allowed to change the station or put their own music on is a misrepresentation of the facts.  Clients at [the address] do not have the abilities to operate a remote control or adjust the radio station - but they are offered the choice …[73]

  1. [99]
    The Respondent does not accept that insufficient particulars were provided to Ms Sime, making references to both the show cause correspondence to Ms Sime dated 26 October 2022[74] and further correspondence dated 16 December 2022.  The Respondent submitted that "In the course of the ongoing disciplinary process, the Appellant provided a response on 6 January 2023 identifying two possible dates, one of which was then confirmed by the delegate."[75]
  1. [100]
    The decision maker wrote:

… at interview [the Discloser] made a number of statements in relation to [their] inability to recall specific dates … In order to clarify the matter I requested a copy of the report book for [the address] for 24 March 2022 which is a shift you and [the Discloser] also worked together.  Having reviewed the report book for 24 March 2022 I noted that [Mr C] did not go on an outing that day.

At interview, [the Discloser] stated:

"… I felt when I worked with this staff member, that I couldn't do what I was trained to do and what's in the guidelines and in the policies because it's her way or the highway basically, when you're on a shift with her.  She brings a radio.  She has her own stereo, that is labelled Karen, with a label on it Karen, and that is kept at [the address], so whenever she's on shift she turns that radio on.  And that radio stays on all day, on the station she wants to listen to, for the duration of her shift.

So that means that clients aren't allowed to watch television.  Clients aren't allowed to change the station or put their own music on ...

… and I sat him down, and he wanted to eat his pear and watch Star Trek, and she said what are you doing, I had the radio on.  And I said well, you know since I've been working with [Mr C], I've worked out that he likes Star Trek and he likes to watch that and she goes, oh I can't stand that stupid show and she would turn it off.

I'm like hang on a minute, whose house is this? ...[76]

  1. [101]
    I agree that it was fair and reasonable for the decision maker to substantiate this allegation for the reasons comprehensively explained and elaborated in the show cause correspondence to Ms Sime dated 6 March 2023.[77] 
  1. [102]
    I am particularly persuaded by the decision maker's assessment that "I am of the view that if you have taken the trouble to have your own radio in the house then the radio is more likely to have been for your benefit than the benefit of the clients and I am of the view that this supports [the Discloser]'s claim that you preferred having the radio on to having the television on … I see no reason for [the Discloser] to have made false claims against you and this part of your response does not alter my view that, on the balance of probabilities [the Discloser]'s account of events is the most likely to have transpired."[78]

Does the alleged conduct constitute 'misconduct' within the meaning of s 91(5) of the PS Act, with respect to allegations 1, 2, 4 and 5?

  1. [103]
    The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act.  That includes where the employee has "been guilty of misconduct".[79] 
  1. [104]
    I have disturbed the decision maker's determination to substantiate allegation three - but have confirmed his decision to substantiate the remaining allegations.
  1. [105]
    On the basis of his findings that allegations 1 - 5 were substantiated, Mr Lupi determined that Ms Sime had (emphasis added):

… contravened section 91(1)(b) of the PS Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a). 

  1. [106]
    With respect to allegation 1, Mr Lupi clearly explained his reasons to be (emphasis added):

I am of the view that you have contravened the PS Act under this provision because by slapping [Ms A]and [Mr B], you physically abused [Ms A] and [Mr B] and deliberately departed from the accepted standard of client care you were required to provide, which constituted inappropriate conduct in an official capacity.[80]

  1. [107]
    With respect to allegation 2, Mr Lupi clearly explained his reasons to be (emphasis added):

I am of the view that you have contravened the PS Act under this provision because by pushing [Mr C] in the middle of the back, you physically abused [Mr C] and deliberately departed from the accepted standard of client care you were required to provide which constituted inappropriate conduct in an official capacity.[81]

  1. [108]
    With respect to allegation 4, Mr Lupi clearly explained his reasons to be (emphasis added):

I am of the view that you have contravened the PS Act under this provision because by using the tone, words and actions described in the allegation examples 4a and 4c to 4g, you verbally and non-verbally abused departmental clients and deliberately departed from the accepted standard of care you were required to provide to clients which constituted inappropriate conduct in an official capacity.[82]

  1. [109]
    With respect to allegation 5, Mr Lupi clearly explained his reasons to be (emphasis added):

I am of the view that you have contravened the PS Act under this provision because by saying demeaning and humiliating words to the effect of "don't bring him home early" and "don't come back" towards and in the presence of [Mr C], you engaged in psychological/emotional abuse of a client and deliberately departed from the accepted standard of client care you were required to provide which constituted inappropriate conduct in an official capacity.[83]

  1. [110]
    In his careful reasoning above, Mr Lupi has clearly explained 'why' he found Ms Sime had been guilty of misconduct.  That is because the various substantiated conduct was a deliberate departure from the accepted standard of client care she was required to provide clients.  The clarity of the explanation provided is commendable.
  1. [111]
    In determining whether or not particular conduct meets the test of 'misconduct' under s 91 of the PS Act, the following Commission decisions are useful.
  1. [112]
    In the recent case of Ball v State of Queensland (Queensland Corrective Services) ('Ball')[84] O'Connor VP relevantly explained (emphasis added, citations omitted):

 [79] Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.

 [80] In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy.  The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.

  …

 [83] Daubney J, in considering s 10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent.  Rather, each term should be read as giving colour to the other.   His Honour held that:

   '[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct.  As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.

 [84] Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW).  Kirby P said:

   But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required.  It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

  1. [113]
    In Ball, O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[85] in these terms (emphasis added):

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[86]

  1. [114]
    Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service,[87] in which he also held that (emphasis added):

In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[88]

  1. [115]
    With the above criterion firmly in mind, I believe that Ms Sime's actions indeed amounted to 'misconduct'.  That is, by physically and emotionally abusing several clients Ms Sime did 'deliberately depart' from accepted standards of care that she was paid to provide.

Does the alleged conduct constitute a contravention of a provision of another Act that applies to Ms Sime in relation to her employment 'without reasonable excuse' within the meaning of s 91(1)(g)(ii) of the PS Act, with respect to allegation 6?

  1. [116]
    The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act.  That includes where the employee has contravened a provision of another Act that applies in relation to her employment 'without reasonable excuse'.[89] 
  1. [117]
    I have confirmed that it was fair and reasonable for the decision maker to substantiate allegation six. 
  1. [118]
    The question is whether that particular conduct amounts to a contravention of the Disability Services Act 2006, 'without reasonable excuse'.
  1. [119]
    For allegation 6, Mr Lupi determined that Ms Sime had (emphasis added):

… contravened section 91(1)(g)(ii) of the PS Act, in that you have contravened, without reasonable excuse, a provision of another Act that applies to you in relation to your employment.  Specifically, the Disability Services Act 2006.

I am of the view that you have contravened the PS Act under this provision because by not allowing [Mr C] to watch television in his own home you failed to comply with Sections 18(2)(a), (d), (e) and 3(b) of the Disability Services Act 2006 by failing to:

  • respect [Mr C]'s human worth and dignity as an individual;
  • allow [Mr C] to participate actively in decisions affecting his life;
  • recognise [Mr C]'s individual autonomy and independence, including his freedom to exercise choice and control of his life; and
  • provide services in a way that resulted in the minimum restriction of [Mr C]'s rights and opportunities.[90]
  1. [120]
    The particular conduct Ms Sime was confirmed to have engaged in is set out at paragraphs [96] - [100] above.  By not allowing clients to watch television in their own home, Ms Sime did contravene the provisions of the Disability Services Act 2006.  Preventing clients from watching television because Ms Sime liked to listen to her preferred radio station on her own radio whilst at work is not a 'reasonable excuse' for such contravention.

Was the chief executive "reasonably satisfied" that a discipline ground has been established (as the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made)?

  1. [121]
    Section 90 of the PS Act defines a 'disciplinary finding' to be "a finding that a disciplinary ground exists".  'Grounds for discipline' are set out at s 91(1) of the PS Act.  Relevantly to this matter, a chief executive may discipline a public sector employee if the chief executive is "reasonably satisfied" the employee has "been guilty of misconduct"[91] or "contravened, without reasonable excuse, a provision of…another Act that applies to the employee in relation to the employee's employment …"[92]
  1. [122]
    Mr Lupi so concluded that (emphasis added):

Having determined that the above discipline grounds exist, I am now considering whether disciplinary action should be imposed against you pursuant to sections 93 and 92 of the PS Act.[93]

  1. [123]
    Having confirmed the decision maker's determination that the Appellant's conduct amounted to 'misconduct' and a contravention of a provision of another Act that applies to Ms Sime in relation to her employment 'without reasonable excuse', it follows that Mr Lupi's finding that a disciplinary ground exists was fair and reasonable.

Was Ms Sime was afforded procedural fairness?

  1. [124]
    The Discipline Directive prescribes that the written details of each allegation must include: the allegation; the particulars of the facts considered by the chief executive for the allegation; and the disciplinary ground under s 91 of the PS Act that applies.  Further that a copy of all evidence relevant to the facts considered by the chief executive for each allegation must be provided to the employee.  I note the list of attachments to the initial show cause correspondence dated 26 October 2022 sets out such materials.[94] 
  1. [125]
    The Discipline Directive provides that an employee must be provided with "a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice …"[95]  While the language used in the initial show cause notice dated 26 October 2022 required Ms Sime's response "within fourteen (14) days from the date of your receipt of this letter", I note that the Appellant's response was nonetheless provided on 21 November 2022.
  1. [126]
    The Discipline Directive prescribes that disciplinary findings must result from the chief executive's review of "all relevant material, including any submissions from the employee" and for each such disciplinary finding, the chief executive "must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established."[96] 
  1. [127]
    I am satisfied that the process undertaken has complied with the PS Act and Directive.
  1. [128]
    I have carefully reviewed the correspondence provided to Ms Sime and confirm they contain the required components.  As I have earlier observed, I commend the decision maker's clear and comprehensive reasoning in the show cause notice dated 6 March 2023.
  2. [129]
    I accept that Ms Sime was also afforded procedural fairness in the course of the process undertaken in the following ways: the further opportunity to provide a more fulsome response to allegation six; the written notification that she may wish to seek union assistance in preparing her response; and the identification of her appeal rights should she wish to exercise them. 

Was the disciplinary finding was fair and reasonable?

  1. [130]
    In this appeal, Ms Sime challenges the disciplinary finding made by Mr Lupi.  That is, the decision maker's finding that a disciplinary ground exists.
  1. [131]
    Although I have disturbed the decision maker's finding to substantiate allegation three, I confirm the remaining five allegations against Ms Sime to be substantiated.
  1. [132]
    On the basis of those five substantiated allegations, it then follows that grounds for discipline exist pursuant to s 91(1)(b) and (g)(ii) of the PS Act.  I have outlined my reasons for this conclusion in paragraphs [101] - [121] above.

Proposed disciplinary action

  1. [133]
    The grounds of appeal also included the "overall proportionality of the Respondent's proposed disciplinary action of termination."
  2. [134]
    The outcome sought by the Appellant was for the Commission to "set aside completely" the Respondent's decision to substantiate the six allegations - or alternatively, to substitute it "with another decision to undertake management action and/or implement a final warning as the appropriate course."[97]
  1. [135]
    In confirming five of the six allegations against Ms Sime to be substantiated, I have clearly not set aside completely the Respondent's decision.
  1. [136]
    With respect then to the Appellant's request that the Commission give consideration to the proposed disciplinary action of termination, the Respondent has submitted that "No disciplinary penalty has been determined."[98] 
  1. [137]
    In considering what constitutes a decision, Cullinane J found in Ambrey v Oswin that:

A decision must, for the purposes of the act be one which is "final --- operative and determinative --- in a practical sense of the issue in fact falling for --- consideration."[99]

  1. [138]
    Further, White J in Barker v Queensland Fire and Rescue Authority found that a decision:

… must have a quality of finality, not being a step taken on the way to the possible making of an ultimate decision. It must have the essential quality of being a substantive as distinct from a procedural determination …[100]

  1. [139]
    The proposal of a disciplinary penalty - followed by an invitation for submissions as to 'why the above proposed disciplinary action should not be imposed' within a reasonable timeframe - is not a final and operative decision.  It is a procedural determination that further action may be taken. 
  1. [140]
    As such, that component of the correspondence dated 26 October 2022 is not appealable. 
  1. [141]
    Where a disciplinary penalty is only 'proposed', as is the case here, it is not a 'decision' that may be appealed at this time.
  1. [142]
    I order accordingly.

Orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision:

1.   The decision maker's determination to substantiate Allegations 1, 2, 4, 5 and 6 was fair and reasonable.

2.   The decision maker's determination to substantiate Allegation 3 was not fair and reasonable.

3.  Grounds for discipline exist, pursuant to s 91(1)(b) and (g)(ii) of the Public Sector Act 2022 (Qld). The disciplinary finding was fair and reasonable.

4.   Pursuant to Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the names of the service users and the discloser in this appeal are not to be published.

Footnotes

[1] Respondent's submissions filed 12 April 2023, Attachment 2, 3.

[2] Appeal Notice filed 27 March 2023, 4 [6](b).

[3] Respondent's submissions filed 12 April 2023, Attachment 2.1, 7.

[4] Numbered as such within the investigation report.

[5] Numbered as such within the investigation report.

[6] Respondent's submissions filed 12 April 2023, Attachment 2.1, 15.

[7] Appeal Notice filed 27 March 2023, 4.

[8] Ibid Attachment 3.

[9] Correspondence from Mr Lupi to Ms Sime dated 6 March 2023, ‘Notice to Show Cause Disciplinary Action'.

[10] Directions Order issued 29 March 2023.

[11] Appeal Notice filed 27 March 2023, 4.

[12] Ibid.

[13] Public Sector Act 2022 (Qld) s 314.

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

[15] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[16] Respondent's submissions filed 12 April 2023, 7.

[17] Appeal Notice filed 27 March 2023.

[18] Appellant's submissions filed 5 April 2023, [37]-[38].

[19] Respondent's submissions filed 12 April 2023, 6.

[20] Appellant's reply submissions filed 19 April 2023, [12]-[13].

[21] Public Sector Act 2022 (Qld) s 3.

[22] (1938) 60 CLR 336. 

[23] Directive 05/23: Discipline, 'Definitions'.

[24] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.

[25] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[26] (1984) 153 CLR 521.

[27] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.

[28] Respondent's submissions filed 12 April 2023, [7].

[29] Ibid.

[30] Ibid.

[31] Ibid [8].

[32] Ibid [9].

[33] Ibid [10].

[34] Ibid [11].

[35] Ibid [27].

[36] Ibid [12].

[37] [2021] QIRC 159 [33].

[38] Appellant's submissions filed 5 April 2023, [2]; Appeal Notice filed 27 March 2023, Attachment KS-02, 4.

[39] Appellant's submissions filed 5 April 2023, [2]-[9]; Respondent's submissions filed 12 April 2023, Attachment 1.

[40] Respondent's submissions filed 12 April 2023, [13].

[41] Ibid [14].

[42] Ibid [15].

[43] Respondent's submissions filed 12 April 2023, [16].

[44] Ibid Attachment 6, 4-13.

[45] Appellant's submissions filed 5 April 2023, [10]; Appeal Notice filed 27 March 2023, Attachment KS-02, 8.

[46] Appellant's submissions filed 5 April 2023, [10]-[18]; Respondent's submissions filed 12 April 2023, Attachment 1.

[47] Respondent's submissions filed 12 April 2023, [17].

[48] Ibid Attachment 6, 15-16.

[49] Ibid Attachment 6, 17.

[50] Ibid Attachment 6, 14-18.

[51] Ibid Attachment 6, 17.

[52] Ibid Attachment 6, 33.

[53] Appellant's submissions filed 5 April 2023, [19]; Appeal Notice filed 27 March 2023, Attachment KS-02, 12.

[54] Appellant's submissions filed 5 April 2023, [19]-[23]; Respondent's submissions filed 12 April 2023, Attachment 1.

[55] Appeal Notice filed 27 March 2023, Attachment KS-02, 12.

[56] Respondent's submissions filed 12 April 2023, [19].

[57] Ibid Attachment 6, 20.

[58] Appeal Notice filed 27 March 2023, Attachment KS-02, 12.

[59] Ibid.

[60] Respondent's submissions filed 12 April 2023, Attachment 6, 21.

[61] Ibid Attachment 6, 18-23.

[62] Appellant's submissions filed 5 April 2023, [24]; Appeal Notice filed 27 March 2023, Attachment KS-02, 13-16.

[63] Appellant's submissions filed 5 April 2023, [24]-[25]; Appeal Notice filed 27 March 2023, Attachment KS-02, 13-16; Respondent's submissions filed 12 April 2023, Attachment 1.

[64] Respondent's submissions filed 12 April 2023, [20]; Notable case 18 January 2017.

[65] Ibid [8].

[66] Ibid Attachment 6, 23-32.

[67] Appellant's submissions filed 5 April 2023, [26].

[68] Appeal Notice filed 27 March 2023, Attachment KS-02, 17.

[69] Respondent's submissions filed 12 April 2023, [21].

[70] Ibid Attachment 2, 12(c) and 13(f).

[71] Ibid Attachment 6, 32-35.

[72] Appellant's submissions filed 5 April 2023, [30]; Appeal Notice filed 27 March 2023, Attachment KS-02, 19.

[73] Appeal Notice filed 27 March 2023, Attachment KS-02, 19.

[74] Pages 14-15.

[75] Respondent's submissions filed 12 April 2023, [22].

[76] Ibid Attachment 6, 36.

[77] Ibid Attachment 6, 35-38.

[78] Ibid Attachment 6, 38,

[79] Public Sector Act 2022 (Qld) s 91(1)(b).

[80] Correspondence from Mr Lupi to Ms Sime dated 6 March 2023, Allegation 1 ‘Disciplinary Finding'.

[81] Ibid Allegation 2 ‘Disciplinary Finding'.

[82] Ibid Allegation 4 ‘Disciplinary Finding'.

[83] Ibid Allegation 5 ‘Disciplinary Finding'.

[84] [2021] QIRC 116.

[85] [2020] QIRC 032.

[86] Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 [86], citing Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 13 [62].

[87] [2020] QIRC 067.

[88] Ibid [36].

[89] Public Sector Act 2022 (Qld) s 91(1)(g)(ii).

[90] Correspondence from Mr Lupi to Ms Sime dated 6 March 2023, Allegation 6 ‘Disciplinary Finding'.

[91] Public Sector Act 2022 (Qld) s 91(1)(b).

[92] Ibid s 91(1)(g)(ii).

[93] Correspondence from Mr Lupi to Ms Sime dated 6 March 2023, ‘Notice to Show Cause Disciplinary Action'.

[94] Directive 05/23: Discipline cl 9.3.

[95] Ibid cl 9.3(e).

[96] Ibid cl 9.4.

[97] Appellant's submissions filed 5 April 2023, [37]-[38].

[98] Respondent's submission filed 12 April 2023, [1].

[99] Ambrey v Oswin [2004] QSC 224, [32] citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.

[100] (2000) QSC 395.

Close

Editorial Notes

  • Published Case Name:

    Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Sime v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2023] QIRC 327

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    15 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
Ambrey v Oswin [2004] QSC 224
2 citations
Jump To
Cite 1 - [2004] QSC 224
Cite 2 - [2004] QSC 224
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116
3 citations
Jump To
Cite 1 - [2021] QIRC 116
Cite 2 - [2021] QIRC 116
Cite 3 - [2021] QIRC 116
Barker v Queensland Fire and Rescue Authority [2000] QSC 395
2 citations
Jump To
Cite 1 - [2000] QSC 395
Cite 2 - [2000] QSC 395
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159
2 citations
Jump To
Cite 1 - [2021] QIRC 159
Cite 2 - [2021] QIRC 159
R v Chamberlain (1984) 153 C.L.R 521
3 citations
Jump To
Cite 1 - (1984) 153 C.L.R 521
Cite 2 - (1984) 153 C.L.R 521
Cite 3 - (1984) 153 C.L.R 521
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
2 citations
Jump To
Cite 1 - [2020] QIRC 67
Cite 2 - [2020] QIRC 67

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
Thomas v State of Queensland (Queensland Police Service) [2025] QIRC 1531 citation
1

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