Mehrtens v State of Queensland (Queensland Health)
[2023] QIRC 68
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- Unreported Judgment
- Mehrtens v State of Queensland (Queensland Health)[2023] QIRC 68
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Mehrtens v State of Queensland (Queensland Health)[2023] QIRC 68
Mehrtens v State of Queensland (Queensland Health)[2023] QIRC 68
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Mehrtens v State of Queensland (Queensland Health) [2023] QIRC 068 |
PARTIES: | Mehrtens, Glen (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/936 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary decision |
DELIVERED EX TEMPORE ON: | 21 February 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision – where several allegations against the Appellant substantiated – where Appellant denies the allegations – where Appellant claims decision lacked procedural fairness – decision with respect to allegations 2, 3 and 4 fair and reasonable in the circumstances – decision with respect to allegation 1 returned to decision-maker |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562B |
CASES: | Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018 |
Reasons for Decision (ex tempore)
Background
- [1]Mr Glen Mehrtens is employed as an electrician with Queensland Health. Mr Mehrtens was suspended on full pay on 25 February 2021 as a result of a series of allegations made about his conduct. Mr Mehrtens was not formally advised of the details of the allegations until 17 December 2021, some 10 months later.
- [2]As explained by Queensland Health at the hearing of these proceedings, the complaints were numerous and the terms of reference of the investigation were expanded during the investigation when further complaints emerged. The investigation involved thirteen witness interviews in relation to eleven different witnesses. While a delay of 10 months to inform an employee of the full details precipitating their suspension is not desirable, it is understandable how it has occurred in these circumstances.
- [3]The independent investigation report was completed on 14 March 2022. Mr Mehrtens was interviewed in respect of the allegations on 24 January 2022 and, following a finding that Mr Mehrtens might be liable for disciplinary action, he was invited to respond to four allegations on 6 May 2022.
- [4]The show cause letter sent to Mr Mehrtens attached a copy of the (redacted) investigation report. Following some industrial interjections by Mr Mehrtens union (including disputes about the redacted report) he was again asked to show cause on 26 July 2022. He responded to that request on 18 August 2022.
- [5]On 4 October 2022, following consideration of Mr Mehrtens show cause response letter, Mr Mehrtens was advised by Mr Mark Slade ('the decision-maker') that a finding had been made substantiating each of the four allegations and that the decision-maker considered he was liable to disciplinary action ('the decision'). Mr Mehrtens was advised that Queensland Health was considering termination of his employment.
- [6]Mr Mehrtens was given seven days to respond to this proposed disciplinary action but instead has filed this appeal in relation to the decision.
- [7]The substantiated allegations for which Mr Mehrtens has been found liable to disciplinary action read as follows:
Allegation one - on a date in September 2020, you breached the Code of Conduct for the Queensland Public Service ('the Code') by harassing Ms Z[1], by saying words to the effect of, "gays will burn in hell" and "Elton John is a dirty faggot"
Allegation two - on a date in September 2020, you breached the Code by harassing Ms Z by displaying lesbian, gay, bisexual, transgender, intersex, queer and ally ('LGBTIQA+') paraphernalia in and around your workstation at the Logan Hospital in view of Ms Z and others.
Allegation three - on 18 February 2021, you breached the Code by sexually harassing Ms Z by saying words to the effect, "I came in that bitch" in the presence of Ms Z and others.
Allegation four - between late-2019 and early-2021, you breached the Code by harassing Ms P when you demonstrated a pattern of inappropriate behaviour towards her.
- [8]Mr Mehrtens' appeal concerns the decision substantiating the allegations and that he is liable to disciplinary action. To be clear, it is noted the jurisdiction of the Commission on such appeals does not extend to the disciplinary penalty being considered by a decision-maker.
Statutory framework for public service appeals
- [9]Public service appeals are dealt with pursuant to chapter 11 of the Industrial Relations Act 2016 (Qld). The nature of public service appeals is a review of the decision appealed against. In this instance, the decision appealed against is the decision of Mr Mark Slade, dated 4 October 2022.
- [10]
- [11]It is trite to observe that in giving consideration to this appeal, I am not bound to overturn a decision under review simply because I might have determined it differently. If findings are reasonably open on the available evidence, and the process in reaching them did not otherwise miscarry, then a decision ought not be disturbed.
Submissions
- [12]Following a direction of the Commission, the parties filed extensive written submissions in support of their respective positions in these proceedings. I do not intend to summarise the submissions in these reasons, but the salient portions will be referred to where necessary in my consideration of the matter.
Consideration
Introduction
- [13]Given the nature of the allegations, Queensland Health engaged an independent investigation firm to interview witnesses and compile a report on factual findings. Independents reports of this nature are an increasingly common approach to such circumstances and will, if conducted competently, allow for thorough, professional and genuinely independent analysis of evidence relevant to a complaint or complaints.
- [14]When such an investigation has been undertaken in a professional and comprehensive manner e.g. where witnesses have been personally interviewed, it can be difficult (if not dangerous) for a court or tribunal conducting a review of a decision to disturb an investigation conclusion. This is especially so in circumstances where the review body has not had the forensic advantage that comes from hearing and seeing a witness give their account of events.
- [15]In circumstances where the Commission is satisfied that an investigation report relied on by a decision-maker has been thoroughly and properly undertaken, it will only be exceptional circumstances that will lead to a finding that a decision was unfair and unreasonable.
- [16]In his submissions, Mr Mehrtens has made a number of broad criticisms of the investigation process. Having regard to both the investigation report and the documented show cause process adopted by Queensland Health, I can see no error that would give rise to any procedural unfairness affecting the process or the decision.
The allegations
- [17]For reasons that are set out below I propose to deal with the allegation 1 last.
Allegation 2
- [18]Allegation 2 is an allegation that Mr Mehrtens displayed LGBTIQA+ paraphernalia in the workplace in view of Ms Z and others.
- [19]There is no dispute that Mr Mehrtens displayed this paraphernalia in the workplace. There is some dispute as to the timing of when it occurred, and some dispute as to the extent to which the display of paraphernalia was excessive. A resolution of these areas of dispute is not especially crucial to the decision-maker’s finding in my view.
- [20]The finding that this conduct breaches the Code relies on a number of background facts, many of which are also not in dispute, namely:
- It is not disputed that Mr Mehrtens had a colleague (Mr B) who held strong religious views opposing homosexuality;
- Mr Mehrtens had another colleague who was openly gay (Ms Z); and
- Mr Mehrtens had apparently no history of displaying this paraphernalia prior to this instance.
- [21]In this context, Queensland Health asserts that Mr Mehrtens' actions were not an act of support for his gay colleague but were instead a ploy to provoke comment from Mr B and thus create conflict between Mr B and Ms Z. This assertion is founded in part on an instinctive foundation. That is to say, it was the complaint of Ms Z to the investigators that Mr Mehrtens' conduct was disingenuous and a ploy to promote 'toxicity' in the workplace. Conversely, Mr Mehrtens asserts his intentions were genuine.
- [22]Ms Z expressed her view to investigators and (importantly) her view was founded in her knowledge of Mr Mehrtens through working with him over a period of time. She instinctively, given her personal knowledge of Mr Mehrtens, did not consider his conduct was done for the genuine purpose of showing support for LGBTQIA+ colleagues. In those circumstances, the investigator preferred the account of Ms Z in respect of the intentions of Mr Mehrtens.
- [23]I have no reason to doubt the reliability of the view formed by the investigator in those circumstances. The investigation report demonstrates that the investigator undoubtedly had a more fulsome opportunity to consider the witness account of events and evaluate credibility. There is no suggestion by Mr Mehrtens (or anyone) that Ms Z acted with malice or dishonestly, and no evidence that the investigation failed to obtain fulsome evidence sufficient to evaluate Ms Z's complaint.
- [24]The investigator was entitled to rely on and give greater weight to Ms Z's instinctive reaction, and the decision-maker was equally entitled to rely on that conclusion.
- [25]While the volume of the material displayed by Mr Mehrtens is in dispute, and while I think that the evidence on that point is less reliable, I can see no reason to disturb the decision in this respect. In those circumstances, I consider that the decision, with respect to allegation 2 is fair and reasonable.
Allegation 3
- [26]In respect of allegation 3 Ms Z says that on 18 February 2021, she heard Mr Mehrtens say the words, "I came in that bitch" in the workplace. In particular, Ms Z clearly identifies Mr Mehrtens as having said the offending phrase. She says this because she was present and that she heard him say it.
- [27]Further, the investigation revealed that another employee (Mr Kiemann) confirmed that the phrase was said but he has no recollection as to who said it.[4]
- [28]Mr Mehrtens denies saying it and otherwise does not recall it being said. Ms Z is adamant in her recollection and Mr K corroborates that the phrase was uttered. In those circumstances the investigator and the decision-maker ultimately both preferred the evidence of Ms Z.
- [29]Mr Mehrtens statement to investigators was to the effect that he was not present at the relevant time. But findings of the investigator cross referencing the timing of a text message sent to Ms Z by another colleague appear to contradict this.[5]
- [30]Mr Mehrtens complains that there were other people present but they were not interviewed. Mr Mehrtens' unreliable response about his absence at the relevant time was already grounds to prefer the account of Ms Z. While interviewing of multiple witnesses might have produced multiple accounts and possibly cast doubt generally, it was unlikely to have altered Ms Z's clear account of events. Given the adamant nature of Ms Z's complaint and the fact that it was this event that prompted her to walk out and (finally) make a formal complaint about Mr Mehrtens conduct more broadly, I can appreciate why her evidence was so compelling.[6]
- [31]The evidence available to the decision-maker was sufficient in my view to reach the conclusion on the balance of probabilities that the statement was made. In the circumstances of Ms Z's clear recollection and the partial corroboration by Mr Kiemann, the finding that Mr Mehrtens made the statement was open to the decision-maker. It follows that I consider that the decision in relation to allegation 3 is fair and reasonable.
Allegation 4
- [32]Allegation 4 has three sub-allegations. They are referred to in the decision letter as a 'pattern of inappropriate conduct', but they are more properly dealt with by breaking them into their separate instances.
- [33]These allegations emerged during the investigation in relation to allegations 1, 2, and 3, and are essentially a complaint of bullying conduct from another female employee, namely Ms P.
- [34]The first sub-allegation is (if true) most serious, in that it is a phrase attributed to Mr Mehrtens that is both threatening and abusive. If true, it is wholly irrelevant that the phrase was uttered about Ms P (as opposed to her). The alleged comment, namely, "I've got to stop hating that bitch" was reported to Ms P by another colleague (Mr D).
- [35]Mr D was present with Mr Mehrtens when Mr Mehrtens made the comment and in Mr D's impression (formed from the immediate context of their discussions), the clear inference drawn by Mr D was that Mr Mehrtens was referring to Ms P. Mr D then told Ms P what Mr Mehrtens had said, allegedly about her.
- [36]Mr Mehrtens was questioned about the phrase and did not deny saying it. But he contends that he was referring to a male colleague who, as part of a mutually shared joke, he refers to as "bitch".
- [37]The investigator had the benefit of interviewing Mr D. There was no suggestion by Mr Mehrtens (or any other evidence before me) that would suggest that Mr D was motivated by bias or malice against Mr Mehrtens. Further, in my view, the explanation offered by Mr Mehrtens for the use of the phrase borders on risible.
- [38]The investigator accepted the inference drawn from Mr D was accurate. The decision-maker relied on this. In those circumstances, I consider that the conclusion was open to the investigator and to the decision-maker, and in the circumstances, was fair and reasonable.
- [39]A second sub-allegation made by Ms P against Mr Mehrtens is in respect of circumstances where the facts are not significantly in dispute. It is alleged that Mr Mehrtens offered Ms P an apology which she asserts was not genuine, and that he delivered it in a way that she found intimidating i.e. while he stood over her when she was sitting at her desk.
- [40]Again, the interviewer, having had the benefit of eliciting the evidence directly from Ms P, preferred to rely on her impression of the intent of Mr Mehrtens when he stood at her desk. In the circumstances where the investigator had the benefit of interviewing Ms P I consider they would have had the full advantage of evaluating Ms P’s account, and they were entitled to prefer it.
- [41]The third of the three sub-allegations by Ms P involves a reference to Ms P's appearance, namely that her 'shoes did not match her outfit'. A similar preference was given to Ms P’s account by the investigator and again, for the reason immediately above, I consider they were entitled to do so.
- [42]While each of the phrases that make up the second and third of the sub-allegations by Ms P are arguably innocuous or even innocent, in the context of Ms P's stated concerns about bullying behaviour on the part of Mr Mehrtens and her broader experience of him, they are potentially misconduct.
- [43]In particular, the tone and manner of the apology offered by Mr Mehrtens to Ms P is what led her to conclude that his apology was not genuine.
- [44]In all of the circumstances, and in particular where the investigator had the benefit of interviewing these witnesses in person and taking their accounts of events, I am unable to identify any error underpinning the investigation or its conclusions on this issue. Similarly, I see no reason why the decision-maker ought not rely on the finding of the investigator, and I conclude then that the decision in respect of allegation 4 is fair and reasonable.
Allegation 1
- [45]Allegation 1 relies once more on the Queensland Health proposition that Mr Mehrtens actions were motivated by a desire to stoke disharmony and conflict between Ms Z and Mr B.
- [46]The allegation in the show cause letter dated 6 May 2022 alleges Mr Mehrtens told Ms Z that Mr B had made the homophobic remarks. That is to say, it alleges Mr Mehrtens made these comments directly to Ms Z.
- [47]But Mr Mehrtens in his response, while admitting to the comments, says he shared the homophobic remark to another colleague, and that Ms Z (who was nearby) came over and joined that conversation.[7] This 'admission' appears to presume that Ms Z overheard those comments.
- [48]Either of these two versions might support a theory that Mr Mehrtens was sharing this information in a disingenuous way and was seeking to fuel a dispute between Ms Z and Mr B. But there is a difficulty with this allegation. The version of relevant events given by Ms Z to the investigators is quite different.
- [49]Ms Z did not relate any scenario to investigators that was consistent with either the formal allegation or Mr Mehrtens 'admission'. Ms Z told investigators that the offending homophobic remarks were shared with her by a third colleague (Mr P) who told her that Mr Mehrtens had reported to him that Mr B had said them to him. [8]
- [50]The difficulty that arises from this is that, for the Queensland Health's theory about Mr Mehrtens' true intentions to have any plausibility in the circumstances described by Ms Z, Mr Mehrtens would need to have known or expected that the third colleague (Mr P) would pass those comments on to Ms Z. There is no evidence of this in the investigation report or anywhere else. Even putting this consideration to one side, there is no apparent reason why the allegation that was investigated and that was put to Mr Mehrtens differs so significantly to the complaint shared by Ms Z with the investigator.
- [51]Whatever the explanations might ultimately be, there is something of a glaring factual inconsistency here that was not resolved by the investigator.
- [52]I note as an aside here that it had originally been alleged that Mr Mehrtens had falsely attributed these homophobic comments to Mr B. It seems, having regard to the material, that the investigation and subsequent process miscarried to some extent when (seemingly unexpectedly) Mr B actually (albeit broadly) adopted the offensive comments and admitted that he was likely to have said words to that effect. And while the investigator still went on to find that Mr Mehrtens had falsely attributed the comments to Mr B, Queensland Health in their decision letter appeared to pull back from the allegation of the false attribution of the statements to Mr B.
- [53]In my view, while the conduct that is admitted by Mr Mehrtens in respect of this allegation is (of itself) worthy of sanction, it is inherently unsound to rely on his account of events to substantiate a complaint by Ms Z that is in fact founded on a wholly different scenario.
- [54]It would appear that the investigator failed to put Mr Mehrtens contrary factual scenario to Ms Z. It might very well be that even though Mr Mehrtens admits making the comments to the other colleague, and while he seems to presume Ms Z overheard him, Ms Z may not have heard him at all.
- [55]Evidence of this type (once resolved) will inevitably place a new complexion on the facts upon which the decision-maker can rely on to make a decision. In my view, even where the investigator may have failed to close off on this outstanding contradiction, the decision-maker was free to (and ought to) have done so before reaching a conclusion.
- [56]For this reason, I consider the decision in respect of allegation 1 to be unfair and unreasonable but I hasten to add, I do not consider it appropriate in this appeal to simply set that finding aside. It is not that the allegation cannot be substantiated. It is simply that the factual investigation is incomplete. In the circumstances I propose to make orders sending the matter back to the decision-maker for further consideration in respect of allegation 1.
Conclusion
- [57]Before turning to the orders, I consider it prudent to place on the record some concluding remarks. I would preface those remarks by saying that it is not the role of the Commission to undertake a review of a proposed penalty in such appeals. But in the circumstances of this matter, I think it appropriate to make some comment about the findings.
- [58]While I have found with respect to allegations 2, 3 and 4 the conclusions were open to the decision-maker, this ought not to be construed as an endorsement by the Commission of the complete validity of those findings. Allegations 1, 2 and 4 against Mr Mehrtens rely (to a large extent) on accepting evidence from witnesses or complainants who infer malicious intent on his part. Mr Mehrtens unsurprisingly protests his innocence.
- [59]I note the investigation report delves into what appears to be a toxic and dysfunctional culture in the relevant workplace and indeed, references to Mr Mehrtens' role in this culture in the various witness accounts appear to be plentiful. But proving that the conduct that is the subject of the allegations was part of a deliberate campaign to precipitate conflict will ultimately require a considerable degree of compelling evidence.
- [60]While I am satisfied that the investigation report has exposed conduct by Mr Mehrtens that is undoubtedly worthy of sanction, and while I can readily contemplate circumstances where that conduct would warrant his dismissal, it is my observation that a more robust body of evidence will need to be compiled by Queensland Health in order to demonstrate that termination of employment is justified.
Order
- [61]I make the following order:
1. Pursuant to section 562C(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed insofar as the decision relates to allegations 2, 3 and 4; and
2. Pursuant to section 562C(b) of the Industrial Relations Act 2016 (Qld), the decision appealed against insofar as it relates to allegation 1 is set aside and returned to the decision-maker with a copy of this decision for further consideration.
Footnotes
[1] In accordance with Rule 97(3) of the Industrial Relations (Tribunals) Rules 2011 (Qld), I have anonymised the names of the complainants and witnesses.
[2] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
[4] See submissions of Mr Mehrtens filed 18/11/22 - Exhibit ‘GM-1 T’ at paragraph 6.2.5(g).
[5] See submissions of Mr Mehrtens filed 18/11/22 - Exhibit ‘GM-1 T’ at paragraph 1.4.3(b)-(d).
[6] No doubt the investigator’s decision not to interview witnesses on this issue was also influenced by their conclusions with respect to Mr Kiemann who was said to be also involved (see Kiemann v The State of Queensland (Queensland Health) [2023] QIRC 069 at [27]-[32])
[7] See submissions of Mr Mehrtens filed 18/11/22 - Exhibit ‘GM-1 T’ at paragraph 7.2.3(d).
[8] See submissions of Mr Mehrtens filed 18/11/22 - Exhibit ‘GM-1 T’ at paragraph 4.1.4(a)-(c).