Kiemann v State of Queensland (Queensland Health)
[2023] QIRC 69
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- Unreported Judgment
- Kiemann v State of Queensland (Queensland Health)[2023] QIRC 69
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Kiemann v State of Queensland (Queensland Health)[2023] QIRC 69
Kiemann v State of Queensland (Queensland Health)[2023] QIRC 69
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Kiemann v State of Queensland (Queensland Health) [2023] QIRC 069 |
PARTIES: | Kiemann, Mark (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2022/938 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary decision |
DELIVERED EX TEMPORE ON: | 22 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 three allegations against the Appellant substantiated – where Appellant denies the allegations – where Appellant claims decision lacked procedural fairness – decision fair and reasonable in the circumstances – decision confirmed |
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 Mehrtens v State of Queensland (Queensland Health) [2023] QIRC 068 |
Reasons for Decision (ex tempore)
Background
- [1]Mr Mark Kiemann is employed as an electrician with Queensland Health. It is noted at the outset that the antecedent facts of this matter are closely related to another proceedings recently dealt with by the Commission in the matter of Mehrtens v State of Queensland (Queensland Health) ('Mehrtens')[1]. Similarly to Mr Mehrtens, Mr Kiemann was stood down on full pay on 25 February 2021 following an incident in the workplace said to have occurred on 18 February 2021.
- [2]Following an extensive investigation of allegations and a comprehensive show cause process, Mr Kiemann was advised on 5 October 2022 of a decision that disciplinary findings were made against him in respect of three allegations, and that the termination of his employment was being considered ('the decision'). It is this decision that Mr Kiemann now appeals.
- [3]Relevantly, the allegations that are the subject of the disciplinary finding are as follows:
Allegation one - On dates in September 2020, Mr Kiemann breached the Code of Conduct for the Queensland Public Service ('the Code') by harassing Ms Z[2] by singing words to the effect of "I'm walking on eggshells".
Allegation two - On 18 February 2021 Mr Kiemann breached the Code by sexually harassing Ms Z by saying words to the effect of "I just came in her twice" in the presence of Ms Z and others.
Allegation three - On 18 February 2021 Mr Kiemann breached the Code by harassing Ms Z by physically standing in her path as she attempted to leave the workshop.
Statutory framework for public service appeals
- [4]Public service appeals to the Commission are dealt with pursuant to Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'). The nature of public service appeals is that of a review of the decision appealed against.[3]
- [5]
- [6]Further, when reviewing a decision, the Commission is not bound to overturn that decision merely because a member conducting the review might have made a different decision. If the findings of the decision-maker who made the decision under review are reasonably open on the available evidence and the process in reaching the decision did not otherwise miscarry, then a decision should not be disturbed.
Submissions of the parties
- [7]The parties in this appeal have filed written submissions in accordance with directions issued by the Commission. I have read and considered those submissions in full but I do not intend to summarise them in these reasons, save for any references to salient portions referred to in my consideration.
Consideration
Introduction
- [8]The allegations confronting Mr Kiemann were the subject of an independent factual investigation that culminated in a report summarising inter alia statements provided by various interviewees (including Ms Z) in respect of the alleged conduct.
- [9]As noted in the decision of Mehrtens, independent reports of this nature are an increasingly common approach to such circumstances and (usually) allow for thorough, and genuinely independent analysis of the available evidence.
- [10]Where it appears to the Commission that such an investigation has been undertaken in a proper and comprehensive manner, and where a decision-maker then relies on the investigation findings, it can be difficult (if not dangerous) for a court or tribunal conducting a review of such a decision to disturb the investigation conclusions.
- [11]Investigations of complaints that involve conflicting factual accounts and e.g. the potential implication of malicious intent will invariably require an evaluation of the credit or reliability of witnesses. An appropriately skilled and independent investigator will have the forensic advantage of hearing and seeing a witness give their account of events and will be uniquely positioned to express a conclusion about facts that can be objectively established on the balance of probability.
- [12]That is not to say that investigation reports and investigators should be regarded as infallible. But in circumstances where it is apparent that a report has been thoroughly and independently undertaken and is unaffected by obvious error, it should only be exceptional circumstances that give rise to a conclusion that a decision under review that relies on such a report was unfair and unreasonable.
- [13]In this matter I note there are a number of passing criticisms of the investigation process made by Mr Kiemann. Having regard to both the investigation report and the documented show cause process adopted by Queensland Health I can find no error that would give rise to any procedural unfairness to Mr Kiemann.
Allegation 1
- [14]In respect of Allegation 1, it is alleged that Mr Kiemann was singing 'I'm Walking on Eggshells'[6] in the vicinity of Ms Z and in a manner that was harassing to her.
- [15]There is no dispute that Mr Kiemann sings this song using those words. Further, he does not dispute that he sings it audibly such that others might hear it.
- [16]Further again, it is not in dispute that the singing was heard by Ms Z (who is a gay woman who works in Mr Kiemann's workplace) proximate in time to another incident where it was alleged that Mr Kiemann's colleague (Mr Mehrtens) had displayed LGBTIQA+ paraphernalia in the workplace (ostensibly to provoke tensions between a conservative Catholic colleague and Ms Z).
- [17]Mr Kiemann insists that when he sings this song to himself, it is done as a reminder to 'be careful not to upset or offend somebody' but is otherwise not directed at anyone. Queensland Health rejects this explanation and considers the context of this conduct (as set out above) is what renders it a breach of the Code.
- [18]It is not controversial that there is some degree of disharmony or tension in the relevant workplace. In this context it is asserted by Queensland Health that Mr Kiemann's conduct in this regard is related to the broader range of conduct involving both Mr Kiemann and Mr Mehrtens which it is alleged is designed to provoke their Catholic colleague into making comments that will likely upset Ms Z.
- [19]It is not in dispute that Mr Kiemann was heard singing the song proximate to the time when Mr Mehrtens displayed LGBTIQA+ paraphernalia in the workplace. Ms Z was offended by that conduct because she felt her sexuality was the subject of a disingenuous display of support by Mr Mehrtens that was, in reality, purely for the purposes of triggering Mr B and promoting toxicity in her workplace.
- [20]In that setting, Ms Z perceived Mr Kiemann's conduct was directed at her in reference to the provocative paraphernalia on display. She described Mr Kiemann as singing it in a jovial manner and felt that it was part of 'an open joke'.
- [21]The investigator had the opportunity to interview both Ms Z and Mr Kiemann. The investigator accepted Ms Z's interpretation of the actions of Mr Kiemann. Having heard Mr Kiemann's explanation about his singing, I am equally inclined to dismiss it as implausible. Having regard to the facts before the decision-maker, I am inclined to consider Mr Kiemann's actions were, in all probability, in the nature of a taunt.
- [22]However, it is not necessary for me to make a finding in this regard. Suffice to say, in all of the circumstances, I consider the conclusion was open to the investigator to prefer Ms Z's interpretation and reach a conclusion that Mr Kiemann's conduct was humiliating or harassing to Ms Z.
- [23]It follows then that I consider the decision-maker's decision in respect of allegation 1 is fair and reasonable.
Allegation 2
- [24]In respect of allegation 2, it is not in dispute that both Ms Z and Mr Kiemann heard the words "I came in her twice" spoken during the incident in the workplace on 18 February 2021. Ms Z has (without wavering) attributed the comment to Mr Kiemann. Mr Kiemann denies that he said it.
- [25]Relevantly, when interviewed, Mr Kiemann originally told investigators that he did not know who else was present on the day in question. He subsequently revealed that he had taken notes a short time after the incident and further, that he had an idea of who had said it, but he would not reveal those names to the investigator nor share his contemporaneous notes.[7]
- [26]In those circumstances, the investigator concluded that in all probability Mr Kiemann had uttered the offensive phrase.
- [27]Mr Kiemann complains that other potential witnesses were not interviewed and therefore the apparently clear recollection of Ms Z had not been tested. He alleges that this undermines the reliability of the investigation conclusion and therefore the finding against him.
- [28]I note relevantly that there is (potentially) at least one witness in proximity to the events on 18 February 2021 who has describes the scene as 'a joke being told by Mr Mehrtens and Mr Kiemann'.[8]
- [29]While the decision of the investigator not to interview other potential witnesses might be regarded as somewhat risky, I consider that risk is very much mitigated by the fact that Ms Z is clear in her recall that it was Mr Kiemann who made the comment. Further Mr Kiemann confirms that these words were uttered.
- [30]But the most compelling indicator that Mr Kiemann was the person who uttered the offending phrase is that Mr Kiemann responded to the allegation in a manner that I would describe as being entirely consistent with the appearance of culpability in that he:
- – initially denied that he knew who was present at the relevant time; but then
- – later revealed that he had notes in relation to the incident that were relatively contemporaneous (but refused to reveal those notes to the investigator); and
- – told the investigator he had an idea who did say it but refused to share that information with the investigator.[9]
- [31]In adopting this latter position and the 'code of silence', Mr Kiemann purported to be 'protecting' his colleagues from what he was experiencing i.e. being stood down and investigated. If that was what he was genuinely doing, it was an ill-advised tactic but also, it is conduct likely to expose him to further allegations of misconduct with respect to withholding information material to allegations of misconduct in the workplace.
- [32]There is however a plausible and compelling inference that can be drawn from Mr Kiemann's inconsistency and subsequent silence in response to this issue. It is open to infer that Mr Kiemann is in all probability the person responsible for the comment. Maintaining silence in some faux act of 'honour' is really just an unimaginative ploy to create doubt about his culpability. This was the inference drawn by the investigator and one which I consider was reasonably open on the facts.
- [33]In the circumstances it follows that I consider the decision regarding allegation 2 to be fair and reasonable.
Allegation 3
- [34]In respect of allegation 3, Ms Z says that the language used by Mr Mehrtens and Mr Kiemann on 18 February 2021 made her feel uncomfortable and upset to the point that she needed to leave the workplace.
- [35]Ms Z was observed by at least one other witness to be upset at the relevant time she left the premises.[10] Ms Z gives a clear account that as she got up to leave, Mr Kiemann walked towards her and positioned himself in a way that effectively blocked her exit.[11] Ms Z felt that her sudden exit was drawing the unwanted attention of the others which made her uncomfortable, and that the delay caused by Mr Kiemann obstructing her path prolonged her discomfort.
- [36]During her interview with the investigator Ms Z (to her great credit) would not speculate what Mr Kiemann's intentions were in obstructing her exit. But she was very clear about the fact that Mr Kiemann walked towards her at the same time that she got up to leave, positioned himself in a manner that obstructed her exit, and did not move when she said, "excuse me". This caused her to have to 'slink' past Mr Kiemann to continue her exit.[12]
- [37]This part of her experience was prominent in her description of the events that she found distressing that day and, if accepted, leaves open an inference that Mr Kiemann's conduct was deliberate and harassing.
- [38]By contrast to Ms Z's clear and consistent description, the net effect of Mr Kiemann's somewhat disjointed and confused response to the allegation is that he does not recall Ms Z being there or seeing her leave.[13]
- [39]There are two parts to be considered in respect of this allegation and the responses given: Firstly, did Mr Kiemann obstruct Ms Z's path and secondly, did he do so deliberately. The investigator concluded both questions in the affirmative.
- [40]In particular, the investigator being conscious of the workplace layout considered the route taken by Ms Z in exiting would have made it unlikely for Mr Kiemann not to have seen Ms Z or have seen her leaving. Further, the route that Ms Z says she took to exit the premises was corroborated by the colleague who had been sitting next to her immediately before she left.[14]
- [41]The investigator had the benefit of evaluating the credit of Ms Z and Mr Kiemann and ultimately considered Ms Z's account credible. In my view, Mr Kiemann's unlikely account that he did not see Ms Z leaving adds significant weight to the proposition that his actions in obstructing Ms Z were intentional and intended to harass.
- [42]In all of those circumstances I can see no barrier to the conclusion reached by the investigator on the available evidence or the reliance on that conclusion by the decision-maker. It follows that I consider the decision in respect of allegation 3 to be fair and reasonable.
Order
- [43]I make the following order:
1. The decision appealed against is confirmed.
Footnotes
[1] Mehrtens v State of Queensland (Queensland Health) [2023] QIRC 068.
[2] Names of witnesses have been anonymised in accordance with the discretion available pursuant to s 97(3) of the Industrial Relations (Tribunals) Rules (Qld) 2011.
[3] Industrial Relations Act 2016 (Qld) s 562B.
[4] 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.
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] A parody of the 1985 hit song by Katrina and The Waves 'Walking on Sunshine'.
[7] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 6.2.5(a)-(f).
[8] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 5.5.3(j) – though I note the hearsay nature of this statement.
[9] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 6.2.5(a)-(f).
[10] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 5.7.1(b)-(c).
[11] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 4.1.6(g)-(h).
[12] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 4.1.6(h)-(i).
[13] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 6.2.5(m).
[14] See submissions filed 21/11/22 – Exhibit 'MK-1S' at paragraph 5.7.1(d)-(e).