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  4. Phillips v State of Queensland (Department of Transport and Main Roads (No. 2) - [2024] QIRC 138

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Phillips v State of Queensland (Department of Transport and Main Roads (No. 2)[2024] QIRC 138

Phillips v State of Queensland (Department of Transport and Main Roads (No. 2)[2024] QIRC 138

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v State of Queensland (Department of Transport and Main Roads (No. 2) [2024] QIRC 138

PARTIES:

Phillips, Helen

(Applicant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

GP/2022/7

PROCEEDING:

Application in existing proceedings

DELIVERED ON:

30 May 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

The orders are contained in paragraph [88] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – GENERAL PROTECTIONS – Application in existing proceedings – where Applicant seeks disclosure of further documents – where Respondent objects to the request for further disclosure – where Applicant seeks a decision regarding the disclosure request.

LEGISLATION:

Industrial Relations Act 2016 (Qld)

Industrial Relations (Tribunals) Rules 2011 (Qld) r 46, 41(2)(o)

CASES:

Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 14

Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25

Watton v TAFE Queensland (No. 2) [2021] QIRC 299

Reasons for Decision

Introduction

  1. [1]
    On 26 April 2022, Ms Helen Phillips ('the Applicant') filed a general protections application pursuant to ch 8 pt 1 div 3 of the Industrial Relations Act 2016 (Qld) ('the IR Act') against the State of Queensland (Department of Transport and Main Roads) ('the Respondent').
  1. [2]
    On 18 May 2023 the Commission issued a Further Directions Order (4) ordering disclosure between the parties.
  1. [3]
    The Respondent disclosed to the Applicants a 'Form 23 – List of Documents' and the parties then exchanged correspondence regarding the documents.
  1. [4]
    On 18 August 2023, the Applicant filed a 'Form 4 – Application in Existing Proceedings' ('the Application') seeking a decision that the Respondent fulfil the requirements of Orders 3 and 5 of Further Directions Order (4) issued on 18 May 2023.
  1. [5]
    The Applicant was directed to contact the Commission and the Respondent by 6 October 2023 to confirm if she intended to press her Application.
  1. [6]
    By email on 6 October 2023, the Applicant advised the Commission that the Applicant wished to continue her Application.
  1. [7]
    A Further Directions Order (6) was issued on 1 September 2023 directing parties to file submissions in regard to the Application. An extension was granted via a Further Directions Order (8) issued on 2 November 2023.
  1. [8]
    Parties filed submissions in accordance with the Further Directions Orders and the Applicant sought leave to make oral submissions via correspondence filed on 20 November 2023.
  1. [9]
    Parties made oral submissions at a hearing of the Application on 23 January 2024.

Documents sought

  1. [10]
    The Respondent advised the Commission at the hearing that a number of documents sought in the Application had been provided to the Applicant prior to the hearing. The remaining documents sought were categorised as follows –

No.

Description of request for document(s)

1.(i)(a)

The decision given to Ms Lori Wilson about 5 May 2020 for her complaint.

1.(i)(b)

All documents that led Ms Rachelle Storm to state in her email to the applicant of 17 December 2019 at 11:46hr (Applicant document#27), "Whilst Warren and Randall were not involved in the complaints management process, they were aware there were some issues of contention between yourself and Lori and had considered implementing interventions at the local level accordingly. So whilst it may seem from your perspective that their interventions were related to the complaint management process, I can assure you that is not the case."

1.(i)(d)

The Appeal application for Appeal number PSA/2020/141, Lori Wilson v State of Queensland (Department of Transport and Main Roads).

1.(i)(e)

All documents relevant to the "proposed change of taking over formal management of Neil and Kristeen" Ms Rachelle Storm refers to in her email to Mr Randall Fletcher on 6 May 2020 (Respondent document #21), that is:

"I also recommend that Lori attends the People Matters course as it supports her aspirations of progressing to an AO8 position, and aligns with the proposed change of taking over formal management of Neil and Kristeen."

1.(i)(g)

All documents, in particular variously between Ms Adele Rogers, Ms Elle Ackland, Mr Joshua Hannan, Ms Rachelle Storm and Mr Randall Fletcher in relation to the Applicant's request of 11 May 2020 to have her reporting relationship changed so that she did not have to report directly to Mr Randall Fletcher and resulting in the decision that the Applicant had to remain reporting to the Executive Director until after the Applicant had signed an Employee Performance Development Agreement (epda)

Note:

  1. During a phone meeting between Ms Adele Rogers and the Applicant (Applicant document #106) on 11 May 2020, Ms Rogers told the Applicant she had just sent an email to Ms Elle Ackland with the Applicant's request to return to reporting to her Director, and advised it was a conversation Ms Ackland would need to have with someone within PP&I, advising it was probably going to have to be Mr Joshua Hannan.
  2. During a regular Executive Director / Manager meeting on 14 May 2020 (Applicant document #96), Mr Randall Fletcher confirmed to the Applicant that until the Applicant's epda was in place her reporting relationship wouldn't be changing and he wanted to make that clear.

1.(ii)(a)

"Organisational Structural and Cultural Review" Report (Mapien Report) (Respondent document #77) – all versions provided to the department. There was an initial document provided to Mr Joshua Hannan, the Applicant is of the understanding Mr Hannan requested additional people be interviewed and an amended report be provided.

1.(ii)(b)

All documents relevant to any change to scope and requests for additional work for the Organisational Structural and Cultural Review report development.

1.(iii)(a)

All documents relevant to Ms Rachelle Storm being informed / updated about the Individual Employee Grievance as described by Ms Storm in her email to Mr Joshua Hannan on 5 August 2021 (Respondent document #118):

"Please be advised that Helen has lodged a grievance which includes, amongst other issues, decisions you have made in relation to Lori Wilson's employee complaint from 2019. Alarna Lane-Mullins has been appointed as the delegate for this matter, and she has instructed that the grievance process is to be placed on hold until Helen has been medically cleared to return to work and participate in all workplace discussions. I will inform you if/when the grievance process commences".

1.(v)(a)

The request by Ms Rachelle Storm about directing an employee who is on an approved QSuper income protection claim for an IME to the Case Management Unit referred to in Respondent document #118.

2.(v)(a)

All documents, in particular variously between Mr Randall Fletcher, Mr Warren Batts, Ms Rachelle Storm, Ms Henrietta Meineke, Mr Kevin Freiburg, Ms Chelsea Akers and officers from the Case Management Unit in relation to the incident where Mr Batts threatened and abused the Applicant on 23 December 2019.

3.(i)(c)

All documents relevant to Mr Warren Batts documents about "Recent Events" (TMR Documents #147 and 148) forwarded to Mr Randall Fletcher eg were they forwarded to anyone else, was any action taken in relation to the content which among other things expressed significant dissatisfaction with the HR complaint management process for Ms Lori Wilson's complaint about the Applicant.

3.(iii)(a)

All documents relevant to Ms Julie Mitchell's decision to uphold Mr Joshua's Hannan's decision of 5 May 2020 in relation to Ms Lori Wilson's complaint about the Applicant, in particular her advice to Ms Wilson that she would request Mr Hannan initiate a "relationship and performance review … as a matter of urgency and that it would include interviewing all team members to assess the existing cultural situation and identify options for how this can be improved" as detailed in TMR Document #163.

Legal framework

  1. [11]
    Rule 46 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the Rules') outlines the following with respect to the duty of disclosure:
  1. (1)
    If a directions order requiring disclosure of documents is made, a party must disclose any document that—
  1. (a)
    is directly relevant to the proceeding or a matter in issue in the proceeding; and
  1. (b)
    is in, or comes into, the possession of the party.
  1. (2)
    A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.
  1. (3)
    Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.
  1. [12]
    The Commission may make an order requiring disclosure of documents pursuant to Rule 41(2)(o) of the Rules.
  1. [13]
    In Watton v TAFE Queensland (No. 2), Industrial Commissioner Hartigan determined the following:
  1. [9]
    By operation of r 46 of the Tribunals Rules, the obligation in respect of disclosure applies to documents relevant to an allegation in issue in the proceedings. Where disclosure has been made by a party, another party seeking further disclosure must establish that there are documents in the possession or power of the other party which are relevant to an issue in dispute which have not been disclosed by that other party.
  1. …
  1. [11]
    The purpose of the Statement of Facts and Contentions is to allow each party to properly set out and particularise the relevant facts and legal contentions raised in order to place the Commission and other party on notice as to what the parties' respective case will be. Whilst not formally recognised as such, the Statement of Facts and Contentions have a function akin to pleadings.
  1. [12]
    Accordingly, when determining whether a document, or category of documents is directly relevant, I will do so by considering whether the document or category of documents is directly relevant to an allegation in issue as identified in the ASOFC and RASOFC. The "directly relevant" test set out in r 46 of the Tribunals Rules is intended to impose a threshold on the process of discovery.[1]
  1. [14]
    In the decision of Huyghe v State of Queensland (Mackay Hospital and Health Service) Commissioner Knight summarised principles for determining whether a document is 'directly relevant' as set out in CFMEU v BHP Coal Pty Ltd (No 2)–
  1. (a)
    Whether a document is directly relevant to an issue in the proceeding is a question of fact in the circumstances of the case;
  1. (b)
    'directly' should not be understood to mean that which constitutes direct evidence, to the exclusion of circumstantial evidence. Rather, 'directly relevant' means something which tends to prove of disprove the allegation in issue; and
  1. (c)
    A document will not be 'directly relevant' if, rather than tending to provide an issue in dispute, it merely tends to prove something that may be relevant to ta disputed issue.[2]
  1. [15]
    President Davis considered the question of relevance in Mohr-Edgar v Legal Aid Queensland, stating –

To be relevant, a document does not have to in itself prove the case of the party seeking production of it. It is sufficient if the document tends to prove or disprove an allegation in issue in the proceedings.[3]

Consideration

  1. [16]
    As outlined above, the test to determine if documents must be disclosed is whether the documents are directly relevant to a matter in issue in the proceeding. Each category of document sought will be addressed in turn below.

Document 1.(i)(a)

  1. [17]
    The Applicant submits that 'the decision given to Ms Lori Wilson about 5 May 2020 for her complaint' is directly relevant for the following reasons –
  • The outcome letter provided to Applicant on 5 May 2020 for the complaint appears to be materially different to the outcome letter provided to Ms Wilson.
  • The outcome letter to Lori Wilson regarding her complaint against the Applicant as her manager is directly relevant to the Proceeding because the Amended Statement of Facts and Contentions ('the ASOFC'), dated 4 September 2023, alleges:
  1. (a)
    the complaint was:
  1. i.
    progressed by Mr Joshua Hannah (General Manager, Transport Strategy and Planning) (GM TSP) on 18 December 2019 on the basis of the material provided by Ms Wilson;
  1. ii.
    not managed in compliance with TMR's Managing Employee Complaints Procedure v3.0 (5 September 2017) (the Procedure); and
  1. (b)
    the adverse action was taken to discredit the Applicant and justify removing her permanently from oversight of the contract which she had raised issues about management of.
  • The outcome letter given to the Applicant did not specify "reasons" for any of the decisions made in relation to the Complaint:
  1. (a)
    when the Applicant requested reasons, she was told by Ms Rachelle Storm (Complaint Case Manager, PPI HR):
  1. "The letter sent to you explains the basis for Josh's decision, I refer you specifically to page 2 of the letter for the reasoning behind the decision……The actions outlined in the letter are being implemented to address the core reasons behind the interpersonal conflict between yourself and Lori (being the unresolved matters from the facilitated mediation process), and to enable both yourself and the DCS team to operate to its full potential."
  1. (b)
    despite the complaint allegations not being given to the Applicant, the complaint allegations never having been put to the Applicant to respond to, and Mr Hannan deciding the complaint allegations were unsubstantiated.
  1. [18]
    TMR's Managing Employee Complaints Procedure c3.0 (5 September 2017) states: 
  1. 7.5.7 Provision of a written decision
  1. After a decision has been made about a complaint ...., the decision-maker must provide a written decision to the employee who made the complaint. The decision must:
  1. –Outline the action taken to manage the employee complaint and the outcome of this action.
  1. –Provide the reasons for the decision
  1. –Outline any action that the decision-maker proposes to take, or will take, as a result of the decision
  1. [19]
    The Applicant expects the outcome letter to Ms Wilson will reveal details of:
  1. (a)
    what Ms Wilson's complaint comprised – the emails disclosed to date as being Ms Wilson's complaint (as described in the Delegate's brief) are not conclusive;
  1. (b)
    the action Mr Hannan took to manage the complaint;
  1. (c)
    the outcome of the complaint as given to Ms Wilson;
  1. (d)
    reasons for Mr Hannan's decisions; and
  1. (e)
    the action Mr Hannan informs Ms Wilson will be taken.
  1. [20]
    The Applicant further submits that this document will explain why the actions that the Applicant has alleged are adverse actions were taken and should be disclosed.
  1. [21]
    The Respondent submits that any outcome letter to Lori Wilson, Principal Program Advisor, regarding her complaint against the Applicant as her manager (the 'LW Complaint') is not directly relevant to the Proceeding and the Respondent objects to its disclosure. The Respondent’s submit that the Applicant's Amended Statement of Facts and Contentions ('ASOFC') only alleges that an unspecified person took adverse action against the Applicant in making the decision on 5 May 2020 regarding the LW Complaint (para 3(i)(c) of the SOFC) and contend that any outcome letter or other correspondence provided to Ms Wilson by the Respondent's employee(s) is not directly relevant to whether the decision maker's decision on 5 May 2020 to not substantiate the allegations against the Applicant was adverse action against the Applicant. Further, any internal appeal process by Ms Wilson of the LW Complaint has no relevance to the Proceeding.
  1. [22]
    The Respondent submits that the Applicant's reasons for seeking the outcome letter, including that providing the document would ensure the Applicant's argument in the Proceedings was properly conceived, demonstrate that she is simply undertaking a fishing expedition to identify whether there is a case at all.
  1. [23]
    The Respondent further submits that the allegations relate to the process by which decisions were made about the LW Complaint rather than the outcome.
  1. [24]
    Notwithstanding the Respondent's submissions, the Respondent confirms that both the outcome letter to the Applicant, and the outcome letter to Ms Wilson regarding the LW Complaint, were provided in the same exact terms.
  1. [25]
    In the ASOFC, the Applicant contends that she suffered adverse action on the basis that the complaint by Ms Wilson was -
  1. (a)
    progressed by Mr Hannan;
  1. (b)
    not managed in compliance with the Respondent's procedure;
  1. (c)
    decided on 5 May 2020 to include 'expectations' of the Applicant as if the complaint had been substantiated;
  1. (d)
    kept active by the Respondent by committing to re-enliven the complaint process if Ms Wilson withdrew the appeal; and
  1. (e)
    used as an example of outstanding performance issues the Respondent would be addressing following the Applicant's return from sick leave.[4]
  1. [26]
    While I understand some of the broader allegations may not be in issue, such as the 'expectations' outlined in the decision of 5 May 2020, the actual complaint is directly relevant to the allegation that the decision included such expectations 'as if the complaint had been substantiated'. The content of the complaint is directly relevant to the issue of whether the 5 May 2020 decision included 'expectations' that may be considered as substantiating the complaint.
  1. [27]
    The LW Complaint is directly relevant to the contention that the decision of 5 May 2020 included 'expectations' of the Applicant as if the complaint had been substantiated.
  1. [28]
    Application to order disclosure of Document 1.(i)(a) is granted.

Document 1.(i)(b)

  1. [29]
    The documents sought by the Applicant are all documents that led Ms Rachelle Storm to state the following in her email to the Applicant of 17 December 2019:

"Whilst Warren and Randall were not involved in the complaints management process, they were aware there were some issues of contention between yourself and Lori and had considered implementing interventions at the local level accordingly. So whilst it may seem from your perspective that their interventions were related to the complaint management process, I can assure that is not the case."

  1. [30]
    The Applicant submits that the documents are relevant because the HR Complaint Case Manager has stated she had an informed view by (and before) the 17th of December 2019 that the senior leadership team of the Applicant's work area (Director, Executive Director) were aware of "some issues of contention between yourself and Lori and had considered implementing interventions at the local level accordingly."
  1. [31]
    The Applicant submits the following -
  • In order to prepare a reasonable outline of evidence and argument, the Applicant needs to establish what those "issues of contention" that the HR Case Manager was aware of. For example, the Applicant complained variously to her Director (Mr Warren Batts) about the performance issues and behaviour of Ms Wilson and sought support from the Director to commence working with Ms Wilson to address these concerns (paragraph 1 of Amended SOFC). If other "issues of contention" had been raised by the Director, Development Facilitation and/or Executive Director Transport System Management to the HR complaint case manager, the issues raised by the Applicant should also have been made known to the HR complaint case manager by this time.
  • Disclosure of the requested documents will provide definitive evidence of what was known by the HR Complaint Manager and what wasn't known by the HR Case Complaint Case Manager when she decided to progress the complaint to delegate 2x removed from the subject officer of the complaint (Applicant) and 3x removed from the complainant (Ms Wilson) rather than follow the TMR's Managing Employee Complaints Procedure and ensure local action was taken first.
  1. [32]
    Paragraph 1 of the ASOFC outlines the Applicant's complaints to her Director Mr Warren Batts about the behaviour of Ms Wilson. The Applicant submits that if there were other 'issues of contention' that had been raised to the HR complaint case manager, the issues raised by the Applicant should also have been made known to the HR complaint case manager by this time. That submission does not indicate how the documents sought are directly relevant to a matter in the Proceedings. The category of documents sought are not directly relevant to a matter in the Proceedings.
  1. [33]
    Paragraphs 3(i)(a)-(e) of the ASOFC outline a claim of adverse action taken against the Applicant in relation to Ms Wilson's complaint. Any documents relating to Mr Warren Batts and Mr Randall Fletcher being previously aware of 'issues of contention' between the Ms Wilson and the Applicant are not directly relevant to these matters. I also note that there are no relevant allegations against Ms Storm.
  1. [34]
    In circumstances where Mr Batts and Mr Fletcher were not involved in the management process involving Ms Wilson's complaint, their knowledge of other issues of contention is not directly relevant to a matter in Proceedings.
  1. [35]
    Application to disclose Documents 1(i)(b) is dismissed.

Document 1.(i)(d)

  1. [36]
    The Applicant seeks disclosure of the Appeal application for Appeal number PSA/2020/141, Lori Wilson v State of Queensland (Department of Transport and Main Roads).
  1. [37]
    The Applicant submits –
  • Ms Wilson informed one of her colleagues her appeal was because "HR didn't write her complaint properly", which is relevant to the matters in this Proceeding. This colleague stated they would provide the Applicant with an affidavit of the conversation they had with Ms Wilson to submit in the Proceedings if required.
  • It is not clear which 'complaint' Ms Wilson was talking about when she said 'complaint' to her colleague, that is, the original complaints she made variously between 18 November – 2 December 2019 which have been combined to call 'the complaint' or the request for internal review of the decision of 5 May 2020 for her complaint.
  • Disclosure of the primary document would establish which 'complaint' Ms Wilson referred to, so it would no longer be in contention which 'complaint' HR assisted the preparation of.
  1. [38]
    The Respondent submits –
  • Any appeal application by Ms Wilson is not directly relevant to the Proceeding and the Respondent objects to its disclosure.
  • The submissions in support of the Applicant's request for this document again highlight the broad fishing expedition that the Applicant is undertaking for documents that are not directly relevant to matters in issue in the Proceeding.
  1. [39]
    I accept the Respondent's submission that the words of an unnamed employee about an unspecific complaint are hearsay and unfounded.
  1. [40]
    The ASOFC alleges that the Applicant was subject to adverse action when a commitment was made to Ms Wilson to re-enliven the complaint process, if she withdrew her public service appeal. Ms Wilson's Appeal application is related to the allegation in paragraph 3(i)(d) of the ASOFC that the complaint was 'kept alive' by the Respondent making a commitment to Ms Wilson that if she withdrew the appeal the Respondent would re-enliven the complaint process. However, being broadly related to the allegation does not make the document directly relevant. The Appeal application is not directly relevant to whether a commitment was made to Ms Wilson in return for her withdrawing the appeal. The contents of the Appeal application would neither prove nor disprove that allegation.
  1. [41]
    Application to disclose Document 1.(i)(d) is dismissed.

Document 1.(i)(e)

  1. [42]
    The Applicant seeks all documents relevant to the "proposed change of taking over formal management of Neil and Kristeen" Ms Rachelle Storm refers to in her email to Mr Randall Fletcher on 6 May 2020, that is:

"I also recommend that Lori attends the People Matters course as it supports her aspirations of progressing to an AO8 position, and aligns with the proposed change of taking over formal management of Neil and Kristeen."

  1. [43]
    The Applicant submits that these documents are relevant to the Proceeding, particularly paragraph 4 of the ASOFC which states: 'I allege the Respondent took the adverse action to discredit me, justify removing me permanently from oversight of the contract …' The proposal for Ms Wilson to take over management of Neil and Kristeen aligns with removing the Applicant from oversight of the contract.
  1. [44]
    The ASOFC alleges that the Respondent took adverse action against the Applicant in relation to temporary changes to her reporting lines, with the Applicant reporting to Mr Fletcher instead of Mr Batts following a complaint by the Applicant about Mr Batts. The ASOFC does not make any allegations regarding the proposal for Ms Wilson to take over management of 'Neil and Kristeen'. Any documents related to this proposed change are not directly relevant to the allegation in paragraph 4 of the ASOFC that the reason for the adverse action was to 'discredit' the Applicant and to justify removing her from oversight of the contract.
  1. [45]
    Application to disclose Documents 1(i)(e) is dismissed.

Document 1.(i)(g)

  1. [46]
    The Applicant seeks the following documents in this category –

All documents, in particular variously between Ms Adele Rogers, Ms Elle Ackland, Mr Joshua Hannan, Ms Rachelle Storm and Mr Randall Fletcher in relation to the Applicant's request of 11 May 2020 to have her reporting relationship changed so that she did not have to report directly to Mr Randall Fletcher and resulting in the decision that the Applicant had to remain reporting to the Executive Director until after the Applicant had signed an Employee Performance development Agreement (epda)

Note:

  1. During a phone meeting between Ms Adele Rogers and the Applicant (Applicant document #106) on 11 May 2020, Ms Rogers told the Applicant she had just sent an email to Ms Elle Ackland with the Applicant's request to return to reporting to her Director, and advised it was a conversation Ms Ackland would need to have with someone within PP&I, advising it was probably going to have to be Mr Joshua Hannan.
  1. [47]
    The Applicant submits that the ASOFC raises an allegation that returning to the normal organisational reporting structure was contingent on the Applicant having an epda in place.
  1. [48]
    The Applicant submits that these documents are relevant not because they constitute adverse action on their own, but because they may contain rationale, strategic goal, or specific motivations as to why it was necessary for the Applicant to continue to report to an Executive Director despite the original complaint's outcome that the complaint was unsubstantiated. In addition, the Applicant had requested a change back to normal reporting relationships because she didn't feel safe reporting to the Executive Director, and it was affecting her health and wellbeing.
  1. [49]
    The ASOFC does not refer to the Applicant's request on 11 May 2020 to have her reporting relationship changed. I note that paragraph 9(i) and paragraph 10 allege that adverse action was taken by not allowing the Applicant's reporting line to revert back when the new A/Dir DF was appointed in late January 2020. However, there are no allegations relating to the request on 11 May 2020 and documents related to that request are not directly relevant to this matter.
  1. [50]
    Application to disclose Document 1.(i)(g) is dismissed.

Document 1.(ii)(a) and Document 1.(ii)(b)

  1. [51]
    The Applicant requested all versions of the 'Organisational Structural and Cultural Review' Report ('the Mapien Report') provided to the department [Document 1.(ii)(a)] and all documents relevant to any change to scope and requests for additional work for the Mapien Report development [Document 1.(ii)(b)].
  1. [52]
    In regard to Document 1.(ii)(a), the Applicant submits the following –
  • The [Mapien Report] appears to have been initiated by Ms Julie Mitchell. This assumption is based on correspondence from Ms Mitchell to Mr Joshua Hannan on 5 June 2020 as a consequence of her role as a decision-maker for Ms Wilson's request for internal review of Mr Hannan's decision.
  • While Ms Mitchell upheld Mr Hannan's decision about the complaint, she said she had advised Ms Wilson she would send Mr Hannan a letter requesting he initiate and progress the relationship and performance part of the review outlined in his decision letter as a matter of urgency. She included very specific details about the review despite the allegations in Ms Wilson's complaint never having been investigated and Mr Hannan decided Ms Wilson's allegation did not meet the definition of workplace bullying as defined by the TMR Guide to Preventing and Responding to Workplace Bullying, Sexual Harassment and Unlawful Discrimination.
  • The [Mapien Report] is the only review/investigation that was undertaken that had relevance to Ms Wilson's complaint. Because of the specific nature of the Terms of Reference, the [Mapien Report] should have information about workplace matters such as whether there was any substance to Ms Wilson's allegations or not or if there were any working relationship issues of staff in DCS which may be impacting on performance and what those issues were.
  • This information should have informed future management actions taken by Mr Hannan with respect to the Applicant's employment and is therefore relevant to understanding why in particular, the adverse action described in paragraph 24(iii) of the Applicant's Amended SOFC was taken and therefore directly relevant to a matter in the Proceedings.
  1. [53]
    In regard to Document 1.(ii)(b), the Applicant submits the following -
  • The applicant was invited to participate in a 'Culture Review' for the DCS team on 5 August 2020 by Mr Hannan. The terms of Reference prepared stated the review was to conduct an Organisational Structural and Cultural Review of the DCS team. The intent of the review was clear in the Terms of Reference but concealed from the Applicant who was only told about a Culture Review.
  • The Amended SOFC alleges the [Mapien Report] was undertaken to justify removing the Applicant from oversight of a contract she had raised issues about the management of and/or take disciplinary actions.
  • The genesis and reasons for additional work being undertaken in relation to the finalising of the Review are therefore relevant to a matter in the Proceedings.
  1. [54]
    The Respondent made the following submissions regarding both Documents ii(a) and (b) –
  • The documents in both above categories are not directly relevant to the Proceeding and the Respondent objects to their disclosure. The Amended SOFC only raises an allegation of adverse action by Mr Hannan in appointing Mapien to conduct a cultural review.
  • The Proceeding does not relate to the conduct of the cultural review, nor its outcomes (including any report by Mapien relating to the review). The Applicant did not participate in the cultural review, and the Applicant did not return to the workplace during or after the completion of the cultural review, and therefore has not been impacted at all by any outcomes.
  • The Applicant requests these documents on the basis that 'This information should have informed future management actions taken by Mr Hannan with respect to the Applicant's employment' specifically in relation to her allegation that Mr Hannan took adverse action against the Applicant in directing her to attend an independent medical examination (IME) on 6 September 2021. The Applicant's position does not draw any link between a cultural review of the DCS Team, that the Applicant had no participation in, and the Applicant being directed to attend an IME in September 2021, after having been absent from the workplace on personal leave since 25 May 2020. Further, the Applicant has not established how any documents relating to the [Mapien Report], will go to proving that Mr Hannan took adverse action, in making an IME direction because of the Applicant's alleged exercise of a workplace right in submitting a grievance on 21 July 2021.
  • The Applicant requests the genesis and reasons for additional work being undertaken relating to the cultural review on the basis that 'The Amended SOFC alleges the Cultural Review was undertaken to justify moving the Applicant from oversight of a contract she had raised issues about the management of and/or take disciplinary actions'. The Amended SOFC only alleges Mr Hannan took adverse action in appointing Mapien to conduct a cultural review, not matters thereafter relating to that cultural review. This adverse action is alleged in relation to the Applicant's ambiguous reference to an unknown number of complaints in October 2019 and a complaint of 18 November 2019 about Ms Wilson in relation to the vendor contract with The Citadel Group for the electronic Development Application Management system (eDAM) Migration project (eDAM Contract).  The Applicant does not draw any link between how the [Mapien Report] is related to the alleged removal of the Applicant from oversight of the eDAM Contract and/or the taking of unspecified disciplinary action(s), in circumstances where the Applicant did not participate in the [Mapien Report] in any way, nor did she return to work during or after completion of the cultural review to have been affected at all by any outcomes.
  1. [55]
    The ASOFC alleges that Mr Hannan engaged in adverse action by appointing Mapien to conduct a cultural review to discredit the Applicant, to justify removing her from oversight of a contract, and to have cause to take disciplinary actions against her.  The contents or findings of the report are irrelevant to an assessment of whether the decision to engage Mapien was adverse action that was taken for a prohibited reason. The matter in issue, as outlined at paragraph 3(ii) of the ASOFC, is the reason the decision was made to conduct the review rather than the contents of the review.
  1. [56]
    I am satisfied however that documents relevant to any change to scope and requests for additional work for the Mapien Report are directly relevant. These documents are relevant to the reasons that the report was sought and are directly relevant to the allegation at paragraph 4 of the ASOFC that the review was sought to discredit the Applicant, to justify removing her from oversight of a contract and to have cause to take disciplinary actions against her. 
  1. [57]
    The Application to order disclosure of Document 1.(ii)(a) is dismissed.
  1. [58]
    The Application to order disclosure of Document 1.(ii)(b) is granted.

Document 1.(iii)(a)

  1. [59]
    The Applicant seeks disclosure of all documents relevant to Ms Rachelle Storm being informed / updated about the Individual Employee Grievance as described by Ms Storm in her email to Mr Joshua Hannan on 5 August 2021, as follows -

"Please be advised that Helen has lodged a grievance which includes, amongst other issues, decisions you have made in relation to Lori Wilson's employee complaint from 2019. Alarna Lane‑Mullins has been appointed as the delegate for this matter, and she has instructed that the grievance process is to be placed on hold until Helen has been medically cleared to return to work and participate in all workplace discussions. I will inform you if/when the grievance process commences".

  1. [60]
    The Applicant submits –
  • The requested documents are the information Ms Storm (the officer preparing all the decision documentation for Mr Hannan) was given and what information Ms Storm passed on to Mr Hannan (decision-maker) who made a decision to direct the Applicant to attend an IME appointment with a psychiatrist 6 days after the Applicant's Request for Internal Review of a confidential individual Employee Grievance (grievance) decision being finalised.
  • The Amended SOFC alleges the action was taken to give a reason for transferring or retiring the Applicant. Ms Storm's and Mr Hannan's knowledge of a confidential grievance about them immediately created a conflict of interest for both of them.
  • The documents are requested so the Applicant can confirm to what extent and depth of knowledge of the grievance the decision-maker (Mr Hannan) and the officer preparing all the decision documentation (Ms Storm) had about the grievance.
  1. [61]
    The Respondent submits –
  • These documents are not directly relevant to the Proceeding and the Respondent objects to their disclosure. The Amended SOFC alleges the Applicant exercised a workplace right by submitting a grievance to the Respondent on 21 July 2021 (July Grievance). The Amended SOFC does not raise any allegations regarding Ms Storm or Mr Hannan being a decision maker in respect of the Applicant's July Grievance.
  • The Amended SOFC only alleges that Mr Hannan took adverse action against the Applicant in directing her to attend an IME on 6 September 2021 (Sep 21 IME). This adverse action is alleged in relation to the Applicant's submission of the July Grievance. 
  • The Amended Form 23 includes documents that are directly relevant to Mr Hannan's decision to direct the Applicant to the Sep 21 IME, including the material before Mr Hannan in making this decision.
  1. [62]
    In the ASOFC, the Applicant alleges that she exercised a workplace right by submitting an Individual Employee Grievance to the Respondent on 21 July 2021 (July Grievance)[5] and that she was then subject to adverse action when, inter alia, Mr Hannan directed her to attend an IME appointment with a psychiatrist.
  1. [63]
    The Respondent is correct in their submission that the ASOFC does not raise any allegations that Ms Storm or Mr Hannan were a decision maker in respect of the July Grievance. Mr Hannan was the decision maker in respect of the alleged adverse action in directing the Applicant to attend the IME.
  1. [64]
    I am not persuaded that documents informing or updating Ms Storm regarding the July Grievance are directly relevant to a matter in issue as Ms Storm is not the subject of an allegation of adverse action.
  1. [65]
    The Application to order disclosure of Document 1.(iii)(a) is dismissed.

Document 1.(v)(a)

  1. [66]
    The Applicant seeks disclosure of "the request by Ms Rachelle Storm about directing an employee who is on an approved QSuper income protection claim for an IME to the Case Management Unit referred to in Respondent document #118".
  1. [67]
    The Applicant submits the following –
  • These documents are directly relevant to the Proceeding because the Respondent's Case Management Unit was overseeing the decision process for the Applicant's Individual Employee Grievance, at the time they were requested to provide advice from Ms Storm about directing the Applicant who was on approved QSuper income protection insurance payments to attend an IME. The CMU were aware of the reasons the Applicant was on sick leave and the situation the Applicant was in, including that she was a public interest discloser, yet rather than providing advice reflective of their coordination role of complex matters, the CMU facilitated:
  1. (a)
    Ms Lane-Mullins decision of 11 August 2021 to place the Applicant's grievance on hold to allow her time to recover from her illness
  1. (b)
    Mr Scales' internal review decision of 26 August 2021 to uphold Ms Lane-Mullins decision
  1. (c)
    Mr Hannah's direction to the Applicant to attend an IME with a psychiatrist, which was given only 6 days after Mr Scales' decision on 6 September 2021.
  1. [68]
    The Respondent submits –
  • The Amended SOFC only alleges that Mr Hannan took adverse action against the Applicant in directing her to attend the Sep 21 IME.
  • The Applicant has not established how any documents relating to advice from the Case Management Unit about directing employees on approved QSuper income protection for an IME, will go to proving that Mr Hannan took adverse action in making the Sep 21 IME direction, in circumstances where Ms Storm advised that Mr Hannan could proceed with directing the Applicant to attend an IME.
  1. [69]
    I am not satisfied that the documents sought are directly relevant to the allegation in the ASOFC that Mr Hannan engaged in adverse action by directing the Applicant to attend an IME. The contents of any documents relating to advice from the Case Management Unit as to whether an employee on QSuper can be directed to attend an IME are not directly relevant to establishing the reasons that Mr Hannan made the decision.
  1. [70]
    The Application to order disclosure of Document 1.(v)(a) is dismissed.

Document 2.(v)(a)

  1. [71]
    The Applicant seeks disclosure of "all documents, in particular variously between Mr Randall Fletcher, Mr Warren Batts, Ms Rachelle Storm, Ms Henrietta Meineke, Mr Kevin Freiburg, Ms Chelsea Akers and officers from the Case Management Unit in relation to the incident where Mr Batts threatened and abused the Applicant on 23 December 2019".
  1. [72]
    The Applicant submits that any action taken in relation to the Applicant's email is required to "ensure Outline of Evidence and Outline of Argument are correct".
  1. [73]
    In paragraph 6 of the ASOFC, the Applicant alleges that Mr Batts threatened and abused the Applicant on 23 December 2019.
  1. [74]
    The category of documents sought is very broad and goes well beyond what may reasonably be considered as directly relevant to the conduct alleged. The issue to be determined is whether Mr Batts engaged in the conduct as alleged. The documents sought are not directly relevant to that issue.
  1. [75]
    The Application to order disclosure of Document 2.(v)(a) is dismissed.

Document 3.(i)(c)

  1. [76]
    The Applicant seeks "all documents relevant to Mr Warren Batts documents about "Recent Events" (TMR Documents #147 and 148) forwarded to Mr Randall Fletcher eg were they forwarded to anyone else, was any action taken in relation to the content which among other things expressed significant dissatisfaction with the HR complaint management process for Ms Lori Wilson's complaint about the Applicant".
  1. [77]
    The Applicant submits –
  • Any documents or actions taken regarding this email are relevant to the actions taken by the HR Complaint Case Manager and / or delegate for the complaint made by Ms Wilson about the Applicant.
  • These documents are directly relevant to the Proceeding because the Amended SOFC alleges a complaint about the Applicant, made by Ms Wilson around 19 November 2019 was not managed in compliance with TMR's Managing Employee Complaints Procedure v3.0 and Mr Batts' comments provided an opportunity for the management of Ms Wilson's complaint to be put right.
  1. [78]
    The Respondent submits –
  • The Amended SOFC only alleges that Mr Batts took adverse action against the Applicant in the December Interaction [at paragraphs 6 and 7]. The Amended Form 23 includes documents that are directly relevant to the December Interaction.
  • Documents 147 and 148 disclosed by the Respondent are records by Mr Batts on 12 and 13 January 2020 respectively about the December Interaction, after it takes place. Any documents relating to whether action was taken with respect to any dissatisfaction by Mr Batts with the management of the LW Complaint, are not directly relevant to whether Mr Batts took the alleged adverse action against the Applicant in the December Interaction.
  1. [79]
    This category of documents sought by the Applicant is also very broad in nature and could reasonably be described as a fishing expedition. The documents that the Applicant submits may exist cannot be directly relevant to a matter in issue in the Proceeding where the allegation is only that Ms Wilson's complaint about the Applicant was not managed in compliance with the Complaints Procedure. Whether the documents were forwarded to others and whether or not Mr Batts' comments provided an opportunity for the management of the LW complaint 'to be put right' is not directly relevant to the allegation that the LW Complaint was not managed in compliance with the Respondent's Complaints Procedure.
  1. [80]
    The Application to order disclosure of Document 3.(i)(c) is dismissed.

Document 3.(iii)(a)

  1. [81]
    The Applicant seeks disclosure of "All documents relevant to Ms Julie Mitchell's decision to uphold Mr Joshua Hannan's decision of 5 May 2020 in relation to Ms Lori Wilson's complaint about the Applicant, in particular her advice to Ms Wilson that she would request Mr Hannan initiate a "relationship and performance review … as a matter of urgency and that it would include interviewing all team members to assess the existing cultural situation and identify options for how this can be improved" as detailed in TMR Document #163".
  1. [82]
    The Applicant submits –
  • Ms Mitchell upheld a decision by Mr Hannan that a complaint made by Ms Wilson about the Applicant was not substantiated even though it was clear no investigation of the allegations had been undertaken.
  • Rather than give an amended decision to return the complaint to the decision-maker and have it [sic] complaint investigated, she stated in correspondence to Mr Hannan on 5 June 2020 that she has 'concerns that working relationships of staff within the unit which may be impacting on performance' and requested a relationship and performance review as a matter of urgency as if the allegations had been substantiated.
  • The documents requested are to gain an understanding of the reasons for her decision and actions in relation to her decision.
  • [The] documents are directly relevant to the Proceeding because the Amended SOFC alleges a complaint about the Applicant, made by Ms Wilson around 19 November 2019 was not managed in compliance with TMR's Managing Employee Complaints Procedure v3.0 (5 September 2017).
  1. [83]
    The Respondent submits –
  • The Amended SOFC only alleges that Mr Hannan took adverse action in progressing the LW Complaint and that an unspecified person took adverse action in making the decision on 5 May 2020 regarding the LW Complaint [as per paragraph 3(i)(a)-(c)].
  • Any internal appeal process by Ms Wilson of the LW Complaint, including any decision upholding the outcome of the LW Complaint (that the allegations against the Applicant were unsubstantiated), has no relevance to the Proceeding.
  • The Amended SOFC also alleges adverse action by Mr Hannan in appointing Mapien to conduct a cultural review [outlined at paragraph 3(ii) of the Amended SOFC]. The Respondent repeats and relies on paragraphs 31 and 32 of these submissions, that the Amended Form 23 contains documents directly relevant to Mr Hannan's decision to appoint Mapien to conduct a cultural review, including relevantly Ms Mitchell's request to Mr Hannan that he engage an external consultant to review the DCS 'team dynamics to identify the nature of relationships and interactions within the specific team as a whole' and the request for a quote from Mapien, including the scope of structural and cultural review.
  1. [84]
    The ASOFC alleges at paragraphs 3(i)(b)-(c) that the complaint by Ms Wilson against the Applicant (the LW Complaint) was not managed in compliance with the Respondent's Complaints Procedure and that the decision of 5 May 2020 included 'expectations' of the Applicant as if the complaint had been substantiated.
  1. [85]
    I note the Respondent's submissions that their Amended Form 23 contains documents directly relevant to Mr Hannan's decision to appoint Mapien to conduct a cultural review. However, the allegation regarding Mr Hannan's appointment of Mapien is distinct from the allegation that the LW Complaint was not managed in compliance with Complaints Procedure.
  1. [86]
    Documents regarding Ms Mitchell's decision of 5 May 2020 upholding Mr Hannan's decision with respect to the LW Complaint are directly relevant to a matter in issue in the Proceeding, with that issue being the allegations outlined at paragraphs 3(i)(b)-(c) of the ASOFC.
  1. [87]
    The Application to order disclosure of Document 3.(iii)(a) is granted.

Orders

  1. [88]
    I make the following orders:
  1. The following documents are to be disclosed to the Applicant within 21 days of this order –
  • Document 1.(i)(a)
  • Document 1.(ii)(b)
  • Document 3.(iii)(a)
  1. The application for disclosure of the following documents is dismissed –
  • Document 1.(i)(b)
  • Document 1.(i)(d)
  • Document 1.(i)(e)
  • Document 1.(i)(g)
  • Document 1.(ii)(a)
  • Document 1.(iii)(a)
  • Document 1.(v)(a)
  • Document 2.(v)(a)
  • Document 3.(i)(c)

Footnotes

[1] Watton v TAFE Queensland (No. 2) [2021] QIRC 299, 9.

[2] Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 14, 20.

[3] Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25, 42; citing Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2021] 1 Qd R 276, 282 and Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323, 45.

[4] Applicant's Amended SOFC, filed on 11 September 2023, 3.

[5] Applicant's Amended SOFC, filed on 11 September 2023, 23.

Close

Editorial Notes

  • Published Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads (No. 2)

  • Shortened Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads (No. 2)

  • MNC:

    [2024] QIRC 138

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    30 May 2024

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
Huyghe v State of Queensland (Mackay Hospital and Health Service) [2022] QIRC 14
2 citations
Jump To
Cite 1 - [2022] QIRC 14
Cite 2 - [2022] QIRC 14
Mercantile Mutual Custodians Pty Ltd v Village/Nine Network Restaurant & Bars Pty Ltd [2021] 1 Qd R 276
1 citation
Jump To
Cite 1 - [2021] 1 Qd R 276
Mohr-Edgar v Legal Aid Queensland [2023] ICQ 25
2 citations
Jump To
Cite 1 - [2023] ICQ 25
Cite 2 - [2023] ICQ 25
Watton v TAFE Queensland (No.2) [2021] QIRC 299
2 citations
Jump To
Cite 1 - [2021] QIRC 299
Cite 2 - [2021] QIRC 299
Xstrata Queensland Ltd v Santos Ltd [2005] QSC 323
1 citation
Jump To
Cite 1 - [2005] QSC 323

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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