Schubert v State of Queensland (Queensland Health)
[2024] QIRC 128
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- Unreported Judgment
- Schubert v State of Queensland (Queensland Health)[2024] QIRC 128
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Schubert v State of Queensland (Queensland Health)[2024] QIRC 128
Schubert v State of Queensland (Queensland Health)[2024] QIRC 128
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 |
PARTIES: | Schubert, Ralph Manfred (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/246 |
PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 21 May 2024 |
HEARING DATE: | 21 May 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDER: | The decision under review is confirmed |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against fair treatment decision – where appellant recipient of improper workplace conduct – where appellant made formal complaint about the conduct – where investigation and internal review of the complaint substantiated the conduct – where respondent took appropriate action to address the conduct – whether decision substantiating and addressing conduct was fair and reasonable – decision fair and reasonable – decision confirmed |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562B, s 562C |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Background
- [1]Mr Ralph Schubert is employed as a truck delivery driver with Queensland Health Support Services (‘the respondent’) in Maryborough.
- [2]On 4 May 2023, Mr Schubert was subjected to verbal abuse by a colleague at work. Mr Schubert made a formal complaint about the conduct of his colleague on 8 May 2023 (‘the complaint’), and the matter was dealt with in accordance with Directive 11/20: Individual employee grievances (‘the Directive’).
- [3]Significantly, the written complaint supplied by Mr Schubert fully particularised the incident on 4 May 2023. Additionally, the complaint made incidental reference to other alleged improper conduct but did not include any discernible particulars.
- [4]The complaint was dealt with by the Transport and Logistics Manager, Mr Craig Byrne. On 15 September 2023, Mr Byrne communicated his decision to Mr Schubert. In essence, Mr Byrne concluded that the complaint in relation to the incident on 4 May 2023 was upheld, and that appropriate action would be taken against the named colleague.
- [5]Problematically, Mr Byrne additionally took the opportunity to caution Mr Schubert about an incidental issue without having given Mr Schubert any notice or opportunity to respond. Understandably, Mr Schubert sought an internal review of Mr Byrne’s decision in accordance with the Directive.
- [6]On 28 November 2023, the Acting Deputy Director General, Corporate Services Division, Mr Damian Green issued an internal review decision. Mr Green identified that Mr Byrne had erred in his decision to caution Mr Schubert, and also that he had failed to ascertain an indication of the outcome being sought by Mr Schubert. Having said that, Mr Green otherwise concluded that the decision of Mr Byrne was fair and reasonable (‘the decision’). This is the decision Mr Schubert now appeals.
Nature of Appeal
- [7]
- [8]An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The role of the Commission in such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] Importantly, the role of the Commission does not extend to disturbing a decision reasonably open to a decision maker, even where the Commission might have decided the matter differently.
- [9]The issue for determination in this appeal is whether the decision of Mr Green was fair and reasonable.
What decisions can the Commission make?
- [10]In deciding this appeal, section 562C of the IR Act provides that the Commission may:
- a.Confirm the decision appealed against; or
- b.Set the decision aside and substitute another decision; or
- c.Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions and hearing
- [11]The parties filed submissions in accordance with directions issued on 18 January 2024. The submissions will not be reproduced in these reasons. Any salient portion of the parties’ submissions will be referenced, where relevant, later in these reasons.
- [12]In addition to the written submission, a hearing was conducted on 21 May 2024. At that hearing, Mr Schubert had an opportunity to address questions from the Commission regarding his written submissions and the matter generally.
- [13]As a consequence of Mr Schubert’s responses at hearing, the Commission gleaned an understanding from Mr Schubert that the complaint was in the context of a lengthy history of alleged workplace dysfunction. Mr Schubert indicated he had previous issues with other staff that had resulted in him being absent and in receipt of workers’ compensation payments. Further, Mr Schubert alluded to other employees experiencing similar problems.
- [14]While Mr Schubert’s submissions at the hearing aided the Commission to understand the context to Mr Schubert’s appeal, it is noted that the matters he alluded to were not in the form of sworn evidence. They were anecdotal in nature, and most importantly, were not relevant to the decision under review. Nevertheless, the background was helpful in an ancillary way.
Consideration
- [15]The respondent’s submissions filed on 12 March 2024 ask a very pertinent question of Mr Schubert:
Both the Stage 1 grievance and the Stage 2 internal review found the conduct raised by the Appellant had occurred, and that appropriate action had been taken to address this. It is unclear from either the Appeal notice or the submission why the Appellant considers the decision to find that the inappropriate behaviours he had raised had occurred and that appropriate actions to address the incident were taken is not fair or reasonable.
- [16]Having considered all the filed material, the Commission was left asking the same question. At the hearing of the matter, Mr Schubert was asked to provide an answer. Mr Schubert was still unable to provide a clear answer in that respect. Notwithstanding, it became apparent that he had perhaps expected the complaint would have wider ramifications within his workplace.
- [17]It seems that his somewhat peripheral reference to historical issues and other affected employees in the complaint was, in retrospect, a hint of a broader complaint. But it was by no means clearly announced. In those circumstances it is understandable and reasonable that Mr Byrne (and later, Mr Green) focused on the incident on 4 May 2023 only.
- [18]Additionally, at the hearing, Mr Schubert brought to the Commission’s attention that he had in fact raised a matter involving an incident with the same colleague that occurred on 12 May 2023. Relevantly, Mr Schubert sent a text to his supervisor about the incident on the same day but did not follow up when his supervisor did not action it.
- [19]In an email filed with Mr Schubert’s material, the fate of the complaint about the 12 May 2023 incident is revealed.[6] In that email, Mr Schubert reports that he further reported the matter to Mr Byrne on 26 May 2023 when he rang to discuss the 4 May 2023 incident. Mr Schubert reports that Mr Byrne invited him to make a further compliant, but (in Mr Schubert’s own words) he was ‘over’ making reports. In Mr Schubert’s view, he felt he had done enough by simply telling Mr Byrne. It seems that when invited to follow the proper procedure for filing a grievance, Mr Schubert declined to do so. In those circumstances, no unfairness can arise from the respondent’s response to the 12 May 2023 matter.
- [20]In his written and oral submissions, Mr Schubert has been unable to demonstrate how the decision vindicating his complaint and delivering consequences to his antagonist was unfair or unreasonable. An appeal against a decision that wholly favours the person making the appeal is a little more than unusual. While the Commission understands the broader aspects of Mr Schubert’s concerns, there is no remedy for those matters available to him in these proceedings.
- [21]Having considered the filed material and submissions, there is no material flaw in the process followed by the respondent, nor is the decision of Mr Green unfair or unreasonable.
- [22]Mr Schubert’s emotional distress is not doubted. The full details of the causes of that distress and the merits of Mr Schubert’s assertions about a dysfunctional workplace are not matters for the Commission to determine in these proceedings. The respondent is plainly on notice of these matters and no doubt well aware of their duties to investigate, especially when it would appear that Mr Schubert has sustained a workplace injury as a consequence.[7]
- [23]For completeness, it is worth noting that it is the Commission’s view that a manager more skilled or experienced in the field of human resources may possibly have identified the hints at broader issues that were present in the complaint. But they were only hints, and they were so faint as to likely be invisible to the unskilled observer.
- [24]It might also have been that having received the complaint about the matter on 12 May 2023, the respondent would not have left the discretion to Mr Schubert to pursue it formally. But again, Mr Schubert’s lack of preparedness to pursue it largely legitimises the inaction of the respondent.
- [25]These hypothetical alternative responses would have been legitimate. But that conclusion in no way renders the actual response of the respondent unfair or unreasonable. It is not for the Commission to substitute its preferred response in a review of this type. The actions of the respondent in respect to this matter were all fairly and reasonably open to them on the facts and consequently, the decision is fair and reasonable.
Order
- [26]In all of the circumstances, I make the following order:
The decision under review is confirmed.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B.
[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.
[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Ibid.
[5] Industrial Relations Act 2016 (Qld) s 562B(3).
[6] See email from Mr Schubert to WorkCover Queensland dated 25 November 2023.
[7] Mr Schubert disclosed during the hearing that he was currently off work on workers’ compensation due to stress.