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AP v State of Queensland (Department of Education)[2024] QIRC 170

AP v State of Queensland (Department of Education)[2024] QIRC 170

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

AP v State of Queensland (Department of Education) [2024] QIRC 170

PARTIES:

AP

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2022/627

PROCEEDING:

Public Service Appeal – Appeal against a fair treatment decision  

Interlocutory application – Application for suppression order

DELIVERED ON:

17 July 2024

MEMBER:

Hartigan DP

HEARD AT:

On the papers

ORDER:

  1. Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld), the Appellant, the School and the witnesses are de-identified.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – appeal against a fair treatment decision – where allegations against Appellant substantiated – where Appellant claims the disciplinary finding is unfair and unreasonable – whether the decision was fair and reasonable – decision considered fair and reasonable – decision confirmed. 

EVIDENCE – MISCELLANEUOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – application in existing proceedings for suppression order – where appellant seeks name suppression and publication suppression – where respondent does oppose application – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress identifying information – application for suppression order granted.

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 451, 562, 580

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

Public Interest Disclosure Act 2010 (Qld) ss 3, 49, 55, 65

Public Service Act 2008 (Qld) ss 129, 137, 187

Public Sector Act 2022 (Qld) ss 91, 131

Human Rights Act 2019 (Qld) s 23

CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ)

J v L & A Services Pty Ltd (No 2) [1993] QCA 012; [1995] 2 Qd R 10

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

Reasons for Decision

Introduction

  1. [1]
    The Appellant is employed with the Department of Education ('the Department') in the position of Principal at a State School in Queensland ('the School').
  1. [2]
    By letter dated 26 February 2020, the Department advised the Appellant that allegations had been raised against her in relation to her conduct as the Principal of the School which may render her liable to disciplinary action pursuant to s 187 of the Public Service Act 2008 (Qld) ('Public Service Act').[1] The Department also advised the Appellant that she would be suspended with normal remuneration until "the conclusion of all necessary processes to determine [the Appellant's] liability for disciplinary action".
  1. [3]
    The Department investigated the matter, and the findings of the investigation were included in an Investigation Report.
  1. [4]
    A show cause notice was subsequently issued which put five (5) allegations to the Appellant for her response. The Department advised the Appellant that the allegations were found to be, on the balance of probabilities, capable of substantiation. The Appellant was provided with fourteen (14) days to respond as to why disciplinary findings should not be made against her.  The Department also determined to suspend the Appellant from duties on normal remuneration pursuant to s 129 of the Public Service Act.
  1. [5]
    The five (5) allegations put to the Appellant for her response in the show cause notice were as follows:

Allegation One:

At the School on or about 18 February 2020, you accessed without appropriate authority, [Teacher A]'s departmental ICT user account after obtaining her password from her.

Allegation Two:

At the School on or about 18 February 2020, without appropriate authority, you altered and/or created and/or attempted to influence a departmental record that was to be created by [Teacher A].

Allegation Three:

At the School on or about 8 November 2019, you accessed, without appropriate authority, [Teacher B]'s departmental ICT user account after obtaining her password from her.

Allegation Four:

At the School in November 2019, without appropriate authority, you altered and/or created and/or attempted to influence a departmental record that was to be created by [Teacher B].

Allegation Five:

You bullied subordinate staff members.

  1. [6]
    The Appellant provided a written response to the show cause notice. 
  1. [7]
    After receipt of the Appellant's response, the Department issued a decision with respect to all five (5) allegations ('the decision').
  1. [8]
    The Department determined that all five (5) allegations were substantiated on the balance of probabilities and consequently, that grounds to take discipline exist. The Appellant was placed on notice that, in relation to the imposition of disciplinary action, the decision maker was giving serious consideration to the termination of the Appellant's employment. The Department provided the Appellant with fourteen (14) days to respond as to why the proposed disciplinary action should not be taken against her and suspended her from duties on normal remuneration.
  1. [9]
    The Appellant appeals the decision on the following basis:
  1. The wrong legal tests were applied to the assessment and analysis of the evidence. The incorrect approach was taken to assessments of credit and the assessment of evidence.
  2. The decision relied on irrelevant considerations and failed to take into account relevant considerations.
  3. The findings were not open or reasonably open on the evidence.
  4. The decision was not fair and reasonable because of inordinate and unjustifiable delay for which there was no satisfactory explanation. The reasons for the suspension was not given until approximately 12 months after the suspension.
  5. The decision was affected by bias or a reasonable apprehension of bias.
  6. The decision relied on and was based on a flawed investigation.
  7. The conduct relied on for finding of bullying could not, even if established, amount to bullying.
  8. The decision was affected by legal error.
  9. The decision was incompatible with the Appellant's human rights.
  1. [10]
    The appeal is made pursuant to s 134 of the Public Sector Act 2022 (Qld) ('PS Act') which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [11]
    Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair and reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [12]
    I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[2] An appeal under Ch. 3, Pt 10 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [13]
    During the course of the appeal, the Appellant filed an interlocutory application seeking a suppression order. It is convenient to deal with the application at first instance before I consider the substance of the appeal.

Application for suppression order

  1. [14]
    The Appellant filed an application seeking that her name, the names of Departmental staff mentioned in the appeal submissions, and the name of the School within which the Appellant is employed, be suppressed from publication on the Supreme Court Library website.
  1. [15]
    The Appellant relies on the following grounds in support of the application:
  1. -
    My originating application is concerned with allegations against me by my colleagues and a resultant workplace investigation and disciplinary process.
  1. -
    This process is confidential and in normal circumstances would remain confidential.
  1. -
    If my name and the name of my School are published this would make it difficult for me to resume my career should my application be successful.
  1. -
    If my details are published, the identity of the colleagues who made the allegations against me will also be discover-able(sic) breaching their privacy (noting their complaints have been identified as public interest disclosure under the Public Interest Disclosure Act 2013.
  1. -
    If my details are published this could also affect the day to day operations of my school and effect the reputation of the school.

…

  1. [16]
    Directions were issued requiring the parties to provide written submissions with respect to the Appellant's application for a suppression order.
  1. [17]
    Both parties complied with the directions order.
  1. [18]
    The Appellant, in seeking the orders, bears the onus of demonstrating that circumstances exist which would justify the making of the proposed suppression order.

Relevant legislation and authorities

  1. [19]
    Section 451 of the IR Act bestows general powers on the Commission, and relevantly provides:
  1. 451
    General powers
  1. The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
  2. Without limiting subsection (1), the commission in proceedings may—

…

  1. (c)
    make an order it considers appropriate.
  1. [20]
    Section 580 of the IR Act provides for the directions the Commission may give in respect of confidential material and is set out in the following relevant terms:

580  Confidential material tendered in evidence

…

  1. The court, commission or registrar may direct—
  1. a report, or part of a report, of proceedings in an industrial cause not be published; or
  2. evidence given, records tendered or things exhibited in proceedings for an industrial cause be withheld from release or search.

…

  1. The direction may be given if the court, commission or registrar considers —
  1. disclosure of the matter would not be in the public interest; or
  2. persons, other than parties to the cause, do not have a sufficient legitimate interest in being informed of the matter.

…

  1. [21]
    Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgments and redact information for judgments if there is good reason to do so. Rule 97 relevantly provides as follows:

97 Publishing decisions etc.

  1. The registrar may publish on the QIRC website –
  1. a decision of the court, commission, or registrar; and
  2. the notice of the making or the amended of a bargaining instrument
  1. The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.

Note -

For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.

  1. The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
  1. withhold publication of a document; or
  2. modify a document, before publication, in a way that does not affect the essence of the document.

…

  1. [22]
    The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2),[4] ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
  1. Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
  1. The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
  1. The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
  1. No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
  1. Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
  1. Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
  1. A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
  1. An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
  1. ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
  1. [23]
    In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd[5] ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
  1. [40]
    The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; ‘that justice should not only be done but should manifestly and undoubtedly be seen to be done’. This is a central feature of the administration of justice under the common law.
  2. [41]
    The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in ‘open court’; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
  3. [42]
    However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
  1. [43]
    The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so.  Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.

…

  1. [44]
    It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
  1. [45]
    In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
  1. [46]
    As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'. (citations omitted).

The Appellant's submissions

  1. [24]
    The Appellant submits that the information disclosed in her appeal concerns allegations made by her work colleagues which were identified as public interest disclosures pursuant to s 65(3) of the Public Interest Disclosure Act 2010 (Qld) ('the PID Act'). Section 65(3) PID Act provides that:

65Preservation of confidentiality

  1. A person may make a record of confidential information or disclose it to someone else—

…

  1. For a proceeding in a court or tribunal

…

  1. [25]
    The Appellant contends that disclosing the names of her work colleagues who made the disclosure would not be necessary for the administration of justice and would undermine the main objects of the PID Act. Section 3 of the PID Act provides that the main objects are:

3Main objects of Act

The main objects of the Act are –

  1. to promote the public interest by facilitating public interest disclosures of wrongdoing in the public sector; and
  2. to ensure that public interest disclosures are properly assessed and, when appropriate, properly investigated and dealt with; and
  3. to ensure that appropriate consideration is given to the interests of persons who are the subject of a public interest disclosure; and
  4. to afford protection from reprisals to persons making public interest disclosures.

…

  1. [26]
    In the event an order was made to suppress the identities of the Appellant's co-workers, the Appellant contends that this would have no "practical utility" unless her identity and the name of the school within which the Appellant is employed is also suppressed. This is because if the Appellant's name is published, the Appellant submits that "it would be a simple matter for any person to reveal the names of the disclosers and the name of her school".
  1. [27]
    Further, the Appellant submits that, "persons other than parties to the application do not have a legitimate interest in being informed" of the Appellant's name, the names of Departmental staff who made the disclosure ,and the name of the school within which the Appellant works. The Appellant relies on s 55(2) of the PID Act in this regard, which provides the following:
  1. 55
    Restriction about application
  1. For an application for an injunction under this part that is before it, the industrial commission or Supreme Court may direct that—
  1. a report of the whole or part of the proceeding for the application must not be published; or
  2. evidence given, or anything filed, tendered or exhibited in the application must be withheld from release or search, or released or searched only on a stated condition.
  1. The direction may be given if the industrial commission or Supreme Court considers that—
  1. disclosure of the report, evidence or thing would not be in the public interest; or
  2. persons other than parties to the application do not have a sufficient legitimate interest in being informed of the report, evidence or thing.

…

  1. [28]
    The Appellant contends that the public interest is primarily concerned with the "fairness and effectiveness" of the investigation and disciplinary proceedings in the substantive matter and that granting her application would not have "detrimental effects" on the public interest.
  1. [29]
    The Appellant also submits that making a suppression order is "abstractly essential to the practical utility of a proceeding" because it will ensure that she can "resume her professional life". In support of this, the Appellant relies on the principles established in J v L & A Services Pty Ltd, particularly principle 5(a).
  1. [30]
    Further, the Appellant describes school principals as "lightning rods" for criticism in their community and are therefore required to attain a high level of trust from their school and the wider community in order to effectively run a school. If the Appellant's identity is published, along with her colleagues and the school within which they work, the Appellant expresses a view that it will provide "insurmountable ammunition" to the community who engage in such criticism.

The Department's submissions

  1. [31]
    The Department filed its written submissions opposing the application on 14 October 2022 insofar as it relates to the Appellant's request that her identifying information be suppressed.
  1. [32]
    The Department submits that the Appellant's application does not specifically concern the financial position or trade secrets of a party or witness as required by s 580(1) and (2) of the IR Act. Section 580(1) and (2) of the IR Act provides the following:

580Confidential material tendered in evidence

  1. Subsection (2) applies if records, tendered to the court or commission, relate to—
  1. a person’s trade secrets; or
  2. the financial position of a party or witness.
  1. The records can not, without the consent of the person, party or witness, be inspected by a person other than—
  1. a member of the court or the commission; or
  2. an expert witness for the records.

…

  1. [33]
    In response to the Appellant's reliance on section 55 of the PID Act, the Department contends that this provision only applies to injunctions about reprisals under s 49 of the PID Act and is therefore not applicable to the application.
  1. [34]
    In its submissions, the Department contends that the Appellant has not established a sufficient basis for an order to be made pursuant to r 97(3) of the Rules, in particular, establishing any public interest in the suppression sought or whether there is another sufficient reason that the discretion of the Commission to suppress her identity should be exercised. Further, the Department submits that when considering the application, the principles of open justice dictate that there should be an initial heavy weighting in favour of the principle of open justice. 
  1. [35]
    The Department submits that the disciplinary proceedings are for the protection of the public and therefore, issuing the suppression order in the terms requested by the Appellant would be contrary to the public interest.
  1. [36]
    However, the Department does submit that it is in the public interest that the identities of the Appellant's co-workers be withheld from publication by the Commission. In the event that the identities of the co-workers were to be published, the Department submits that there is a risk that persons may in the future be discouraged from making public interest disclosures.

Consideration of interlocutory application

  1. [37]
    It is noted that both parties agree that the names of the Appellant's co-workers be withheld. Having regard to the consent position of the parties and the circumstances of the matter outlined above, I consider it is appropriate for the names of the Appellant's co-workers to be withheld from publication. Accordingly, I will order pursuant to r 97 of the IR Rules, that the names of the witnesses be de-identified. 
  1. [38]
    The Appellant also requested that her name and the name of the School be de-identified.
  1. [39]
    In considering the Appellant's request I have had regard to the principle of open justice which operates, inter alia, as an overarching principle guiding judicial decision making and various aspects of procedure.
  1. [40]
    Having regard to this principle, I consider several of the matters relied on by the Appellant, including that the de-identification of the Appellant's name would permit her to resume her professional life, to be of little weight in my consideration of whether the principle of open justice should be altered in this matter.
  1. [41]
    However, in the circumstances of this case, and in the context of having determined that it is appropriate to de-identify the names of the witnesses (who also work at the School), I have determined that it is in the public interest to de-identify the name of the Appellant and the School.
  1. [42]
    If no such order were made, then knowledge of the name of the Appellant and the school might act to negate the utility of de-identifying the name of the witnesses who also work at the School. Accordingly, I will issue, pursuant to r 97 of the IR Rules, orders de-identifying the name of the Appellant, and the School.

The decision subject of the appeal

  1. [43]
    As stated above, the decision relates to five (5) allegations put by the Department to the Appellant in relation to her conduct as the Principal of the School.
  1. [44]
    The decision makers substantiated each of the five allegations and found that disciplinary grounds exist.
  1. [45]
    The reasons for the decision are included in a lengthy written document.
  1. [46]
    I refer to the following extracts from the reasons with respect to each of the allegations. The extracts are necessarily lengthy as it will be necessary, when considering the Appellant's submissions, to consider the analysis of the evidence by the decision maker.
  1. [47]
    With respect to allegation one:
  1. On the balance of probabilities, and after considering all the evidence currently before me,  I  am  satisfied  you  asked  [Teacher A]  for  her   password   to  her   laptop   on 18 February 2020 for the purpose of reviewing the response to the Complaint which [Teacher A] had prepared and which was due that same day. I am further satisfied, on the balance of probabilities, that after obtaining [Teacher A]'s password from her you accessed her Departmental ICT user account.
  2. In arriving at this decision, I have had particular regard to the above text messages and your evidence to the investigator, as well as the following:
    1. [Teacher A]'s interview transcript with the investigator on 7 December 2020 and, in particular line 446 where [Teacher A] states, ".. . Like I said, she would, the next morning she would have taken my laptop and logged in herself and checked that I sent it";
    2. your submission the only evidence I am relying on is the allegations made by [Teacher A], and your denial that you accessed [Teacher A]'s Departmental ICT account on the date alleged. I note you have provided no evidence which indicates [Teacher A]'s motive to manufacture allegations against you other than to avoid disciplinary findings herself. In fact, [Teacher A] only reported your conduct after being told by [Teacher D] she had informed [Teacher I] about it. In circumstances where, on your own evidence, you and [Teacher A] had a positive professional and personal relationship I find it unlikely that [Teacher A] would make unfounded allegations against you. For these reasons, I prefer the evidence of [Teacher A].
    3. your  submission  there  is  no  forensic   evidence  to  indicate   you  accessed   [Teacher A]'s account. I note as you had [Teacher A]'s password any access you may have made to her Departmental account would detail her as the user when it may have been you;
    4. your submissions you could not have accessed [Teacher A]'s computer as you were not in the office or near [Teacher A]'s laptop at the time alleged. I note the allegation does not particularise the time when you accessed [Teacher A]'s laptop. Whilst I accept your evidence shows you had commitments throughout 18 February 2020, including a meeting with [Teacher C] and assisting a teacher, I am not convinced that alibies you from having accessed the laptop in between these commitments;
    5. in this regard I also note at line 324 you told the Investigator "...I do recall it was a busy day, I had meetings, and yeah, so I didn't even get to discuss it or with, until you know later in the day". In support, I note [Teacher A]'s text message to you at 12.07pm on 18 February 2020 querying how things were going and whether you needed her help. That text message was sent following your text messages about [Teacher A]'s password for you to review her response to the Complaint. I am satisfied the text message indicates you still had [Teacher A]'s laptop at that time, and you certainly had her password;
    6. your text message to [Teacher A] at 9:21am stating "Hey [Teacher A] can I please have your laptop" and "I need to get working on this thing". On your own evidence, the referral to 'this thing' is a reference to the complaint response [Teacher A] was asked to provide to [the Human Resources consultant] regarding your conduct. I am therefore satisfied you intended to work on the document directly; and
    7. [Teacher A]'s text message sent to you after school on 18 February 2020, thanking you for your " help and guidance" with the response to the Complaint. In circumstances where you admit you requested [Teacher A]'s password to her laptop to enable you to check the response, I consider that the text message indicates that you reviewed the response, which you could only have done on [Teacher A]'s laptop.
  3. Therefore, having regard to all the evidence and particularly the above, I have determined that after accessing [Teacher A]'s laptop password you accessed her Departmental account on the laptop.
  4. You say the term 'appropriate authority' was used in Allegations One, Two and Three but not defined in the Investigation Report or the Information Security Guideline provided with the Report. While you deny accessing the computers, you admit to having been approached by both [Teacher A] and [Teacher B] to provide feedback on their responses to complaints.
  5. You submit if 'appropriate authority' is taken to have its normal meaning, the authority was provided by both [Teacher A] and [Teacher B].
  6. You request I define the term 'appropriate authority' with reference to the relevant guideline or policy to enable you to address the allegations.
  7. I note your query regarding the meaning of the term 'appropriate authority' as referred to in Allegations One to Four. My consideration of that term is in the context of its ordinary meaning. Noting the Concise Oxford Dictionary's definition of 'authority' as meaning 'the power or right to enforce obedience; a person or body having authority; and an influence exerted on opinion because of recognised knowledge or expertise', I have considered the term in the allegations to mean whether you had the power or right to take particular action. On balance, I am satisfied that you did not have appropriate authority, within the ordinary meaning of the term, to request [Teacher A]'s password from her and/or to access [Teacher A]'s Departmental ICT account. I am satisfied that you demanded, rather than merely requested, the password from [Teacher A]. Irrespective of [Teacher A]'s acquiescence to your demand, I consider that in light of your obligations under the Code of Conduct, the Department's Standard of Practice and ICT policy, and inherently as a Departmental employee and Principal, to act ethically at all times and to ensure security of information, you were not authorised to use [Teacher A]'s laptop password to access her Departmental ICT account.
  8. I am satisfied that your behaviour represented a serious departure from appropriate standards of behaviour expected of Departmental employees, and particularly Principals, and is of serious concern. This is particularly so given your admission to the investigator that you were familiar with the Department's ICT policy not to share passwords.
  9. I therefore find, on balance, that Allegation One is substantiated.
  1. [48]
    With respect to allegation two:
  1. You told the investigator, "[Teacher A] definitely came into my office with her computer, and she had a Word document that she wanted me to check for her, which I did, and I gave her a little bit of guidance". I note in your submissions  you stated that when [Teacher A]  left your room,  she had the draft word document  open on her computer  and you had no way of knowing the changes she made after leaving your office. I do not consider your submission mitigates your conduct. I consider that regardless of whether the document was in the draft or final form, on your own evidence, you still had influence over its contents, which was a response to an investigation in relation to your conduct.
  2. I have considered your submission you agreed to read [Teacher A]'s response as you "didn't want to let a colleague down". I do not consider this mitigates or justifies your conduct in reading a document, which you knew or ought to known should be kept confidential and was created in response to an investigation into a complaint about your conduct by another of your colleagues.
  3. I have carefully reviewed your response in which you say [Teacher A] was 'coercing' you to check over her response. You say in hindsight you should have reported this breach of confidentiality at the time. As an experienced Principal, it is concerning you only realised in hindsight (and once subject to an investigation) the importance of ensuring staff comply with the Code of Conduct and maintain the confidentiality of complaint processes. It is also notable that despite your position of authority as Principal, you chose not to refuse [Teacher A]'s request, particularly when you were incredibly busy at that time of year.
  4. I have considered your submission that you did not access [Teacher A]'s response to the Complaint either on her laptop or  your  own  laptop,  and that  you  merely  provided [Teacher A] with advice as to the professionalism of her response. You stated in your response that if the response file had been transferred on a USB and worked on your laptop (as suggested by [Teacher A]), there would have been evidence of this on your computer software.
  5. In the absence of probative evidence, I do not accept your submission that any work by you on [Teacher A]'s response, via a USB, would be identifiable on computer software. However, even if I were to accept this to be correct, your admitted knowledge of and involvement in the preparation of [Teacher A]'s response in my view still constitutes a breach of confidentiality and seriously undermines the integrity of the complaint process.
  6. Where you admit to providing [Teacher A] with guidance for the response, I find it implausible you were not aware of the level of influence you were exercising in relation to the response. I find it implausible you would not have recognised your ' guidance' would at least constitute you influencing [Teacher A]'s response. In forming this view I have considered [Teacher A]'s evidence that particular wording used in the response about you, was not her own.

…

  1. Whilst I accept that as a Principal you have a duty to ensure and seek to enhance the capability of staff and their writing skills (as you submit you often do in relation to behavioural incidents and suspensions), I consider this is significantly different from you providing guidance in relation to and/or influencing in any way the content of a response to a complaint you are the subject of. It is concerning that, as an experienced Principal, you fail to recognise the serious inappropriateness of you providing [Teacher A] with 'support' in drafting her response in relation to a complaint which you are the subject of and how doing would compromise the integrity of the investigation. Indeed, you have not indicated any remorse for doing so.
  2. On balance, I am satisfied that you did not have appropriate authority, within the ordinary meaning of the term, to provide guidance in relation to and/or influence in any  way  [Teacher A]'s response to the Complaint. This is so irrespective of whether you personally made changes to the response document (as I consider is more likely than not) or if you merely discussed preferred amendments with [Teacher A]. I am satisfied that your conduct went beyond merely providing guidance to [Teacher A] about 'wording' in her response, and that such input compromised (or at the very least had the real potential to compromise) the independence and integrity of [Teacher A]'s response.
  3. I am satisfied that your behaviour represented a serious and deliberate departure from appropriate standards of behaviour expected of Departmental employees, and particularly Principals, and is of serious concern. I have determined that your behaviour constitutes misconduct as it demonstrates not only a deliberate departure from the standards of behaviour expected of you but also an abuse of your leadership privilege as a Principal.
  4. I therefore find, on balance, that Allegation Two is substantiated.
  1. [49]
    With respect to allegation three:
  1. I have carefully considered your recollection of 8 November 2019. In particular you say:
  1. [Teacher B] came to see you before school and began to read her response to the complaint to you, from her laptop;
  2. you stopped [Teacher B] and stated "You can't lie. You have to be honest";
  3. around that time, you say you received a phone call, or someone needed to see you and [Teacher B] left to walk students to class. [Teacher B] left her laptop in your office;
  4. by the time you were able to look at the response, [Teacher B]'s laptop had locked up so at 9.16am you texted [Teacher B] and asked for her password to read her response; and
  5. [Teacher B] did not respond to you, so you continued with your work and left the laptop.
  1. You further say [Teacher B] replied to your message on 8 November 2019 at 10:45am, "Can I grab my laptop", to which you responded "Sure can", and [Teacher B] responded some time later "When you get a chance can you check the changes".
  2. You say [Teacher B] took her laptop from your office, made some amendments to the response, and subsequently asked you to check those amendments.
  3. I have noted [Teacher B]'s evidence that she sat with you on 8 November 2019 whilst you were drafting her response to the Complaint on her laptop. I have also noted your text messages with [Teacher B] in the early morning of 8 November 2019, particularly your texts about [Teacher B]'s response to the Complaint that you "had a response for [the Human Resources consultant]" and that "it's a great opportunity for you to give further information".
  4. I have had regard to your submission that [Teacher B] did not provide you with the password to her laptop, and that [Teacher B] was herself uncertain in her evidence about whether she had provided you with her password. In particular, you extracted the following from [Teacher B]'s interview with the investigator on 8 December 2020:

Line 353: [Investigator]: Did you ever give her your password?

Line 354:[Teacher B]: I think, I didn't text it to her.

Line 355:[Investigator]: Yeah

Line 356:[Teacher B]: So I don't know if, I probably, I suspect there might have been a phone call in between that text and the can I grab my laptop, to give her my password.

  1. I have also noted [Teacher B]'s evidence that she felt she had to provide her password and that if she didn't, it could affect her career at [the School]. I do not consider [Teacher B] was uncertain about whether she actually provided the password to you. She was only uncertain as to the manner in which she provided it to you. If [Teacher B] was attempting to fabricate an allegation against you, as submitted by you, I consider she would more likely have given a definitive answer to the investigator to legitimise the allegation.
  2. Having regard to all the available evidence, on balance I have determined that there is sufficient evidence for me to be satisfied that [Teacher B] gave her laptop password to you and you accessed [Teacher B]'s Departmental ICT account in relation to the preparation of [Teacher B]'s response to the Complaint against you. In coming to this finding, I have considered [Teacher B]'s evidence she did give you her password, she just could not remember how. Further, I consider your alleged conduct to be similar to Allegation One and on that basis, I consider it more likely than not you accessed [Teacher B]'s Departmental ICT account for the purpose of influencing [Teacher B]'s response to the Complaint against you.
  3. On balance, I am satisfied that you did not have appropriate authority, within the ordinary meaning of the term, to access [Teacher B]'s Departmental ICT account. I am satisfied that even if you accessed the account after [Teacher B] had entered the password as opposed to you entering the password herself, in light of your obligations under the Code of Conduct, the Department's Standard of Practice and ICT policy, and inherently as a Departmental employee and Principal, to act ethically at all times and to ensure security of information and electronic devices, you were not authorised to access the account.
  4. To that end, I am satisfied on balance that if [Teacher B] had provided her password to you for you to access her ICT account, or if she entered the password herself to enable you to access the account, she would have felt compelled to do so and it would have been a consequence of the imbalance of power and position between you and her, reflective in your earlier text messages to [Teacher B] that you 'had a response' for [the Human Resources consultant].
  5. I am satisfied that your behaviour represented a serious and deliberate departure from appropriate standards of behaviour expected of Departmental employees, and particularly Principals, and is of serious concern.
  6. I therefore find, on balance, that Allegation Three is substantiated.
  1. [50]
    With respect to allegation four:
  1. My findings in relation to Allegation Four are to be considered in the context of my findings regarding Allegation Three.
  2. I have carefully reviewed the text messages between you and [Teacher B]. In particular, I note [Teacher B] sent you a text on 6 November 2019 which read as follows, "I've almost finished the email back to [the Human Resources consultant]. Can I send a photo to you for you to check?". The photo sent to you depicts an email with the subject line 'Draft email to [the Human Resources consultant]', the body of the email reads as follows:

Morning [the Human Resources consultant],

Thank you for talking to me yesterday regarding the complaint that has been made against [the Appellant]  for questioning  [Student A] (Year 3) inappropriately on  22 October

  1. I reject your submission that this text message was unprompted by you. In circumstances where the wording of the text message to you contemplates you having prior knowledge of the 'email back to [the Human Resources consultant]', I consider it likely [Teacher B] sent you the photo in response to you offering (or at least agreeing) to give her 'support' with the complaint. I have difficulty believing that [Teacher B] would send you details of the complaint on her own initiative if you had not already discussed the complaint with her, particularly in circumstances where the complaint was in relation to your conduct. Further, I note you and [Teacher B] had a friendship outside of work and often consulted each other for support with personal issues which is evidenced by the various text messages you have provided. In the circumstances, I consider it more likely than not you assisted [Teacher B] with her response to the complaint against you.
  2. You say [Teacher B] had told you on the morning of 6 November 2019 during a run, that she was confused about responding to the complaint because she did not recall being present for the conversation with the subject, [Student A]. You say [Teacher B] asked you whether she should email [the Human Resources consultant] to let her know it was [Teacher A] in the room.
  3. You say your text message to [Teacher B] later on 6 November 2019, "Don't send the email to [the Human Resources consultant] yet", was in relation  to  your  understanding  that  [Teacher B]  would advise  [the Human Resources consultant] that she was not in the relevant room at the time of the alleged incident with [Student A], and your offer to clarify that based on timetabling information you possessed. [Teacher B] responded to your text "Not going to. Want to check all the wording is correct with you first".
  4. On your own evidence, [Teacher B] came to see you before school on 8 November 2019 and began to read her response to you. You say you stopped [Teacher B] and stated "You can't lie. You have to be honest". You reminded [Teacher B] she had told [the Human Resources consultant] she was not in the room and her response needed to reflect that. This demonstrates your input into [Teacher B]'s response to the complaint.
  5. On 8 November 2019 you exchanged the following text messages with [Teacher B]:

You: I have a response for [the Human Resources consultant] for you

[Teacher B]: Good because I have no idea what to say to  that

  1. You submit the above text messages were referring to a request by [the Human Resources consultant] that [Teacher B] submit a student protection notification in relation to the treatment of [Student A] by the classroom teacher. You say it is illogical to conclude the text messages were in relation to the response to the complaint about your alleged interactions with [Student A], as it had already been drafted by [Teacher B].
  2. I have considered your text message sent to [Teacher B] on 9 November 2019, "Thanks for a great week my lovely. Not only did we kill it with the exercise (a 4am run on an inclusive services meeting day is bloody impressive!!), but we also nailed it with protecting and little [Student A]' [sic] in the future...". You submit this text was in reference to a decision you and [Teacher B] made with [Student A]'s parents to move him into a different class for the remainder of 2019. I have caused a review of the OneSchool records for 2019 and confirm there is no record of communication with [Student A]'s parents regarding him moving classes. I am therefore unable to accept your submission in this regard.
  3. I therefore determine your communications with [Teacher B] on 6, 8 and 9 November 2019 about the response to a complaint referred to [Teacher B]'s response to [the Human Resources consultant] about the complaint concerning your alleged conduct towards [Student A].
  4. I am not convinced by your submissions the only guidance you provided [Teacher B] was in relation to informing [the Human Resources consultant] she was not present during the interactions with you and [Student A]. I have formed this view in circumstances where, on your own evidence, you allowed [Teacher B] to read her response to you and gave her advice that she had to be honest.
  5. I also note [Teacher B]'s evidence that she sat with you in your office whilst you worked on her response to the complaint on her laptop. Noting your subsequent text message to [Teacher B] on 9 November 2019 that "we nailed it with protecting and little [Student A]' [sic] in the future ...", and your earlier text on 8 November 2019 that you "had a response" for [the Human Resources consultant], I am satisfied you did directly draft the response using [Teacher B]'s laptop in her presence. However, even if you did not directly draft the response, I am satisfied that, at the very least, you advised [Teacher B] what to write in the response and reviewed the final version. I am therefore satisfied that you influenced and had input into the preparation of the response to the complaint, which was about you.
  6. In drawing that conclusion I also have had regard to your evidence that [Teacher B] told you she was not present during the alleged interaction between you and [Student A], and her text message to you on the morning of 8 November 2019 that she had 'no idea' what to say in the response.
  1. [51]
    With respect to allegation five:
  1. It is not in dispute that towards the end of 2019, you and [Teacher B] began running together before school. It is also not in dispute that [Teacher B] broke her hand two days prior to the 2020 school year and was unable to run. I have carefully reviewed the evidence of [Teacher B] during her interview with the investigator on 8 December 2020 and particularly note her claims that:
    1. during her runs with you, you would either be "having a go" at her or telling her what she needed to do during the day;
    2. after [Teacher B] broke her hand and informed you that she could not run for a while, you told [Teacher B] you and her would just walk as  you needed to talk about work with her, which was you 'Just  hammering"  her all the  time;
    3. [Teacher B] reported whilst she initially enjoyed running with you, it turned into a situation where she would feel as though you were coaching her through work during the runs and telling her how she needed to react to people. [Teacher B] said it made her feel like a "pressure cooker''; and
    4. [Teacher B] reported there were times where you would text her at 6:01am asking her where she was (as she was due to arrive for the run by 6:00am) and this caused her to feel panic.
  2. I have also carefully considered your submissions regarding your running arrangements with [Teacher B]. I note you stated:
  1. you enjoyed running alone however felt as though you were supporting [Teacher B] by allowing her to run with you;
  2. you had a strict routine to be able to fit in a run before school and [Teacher B] was aware of this and you needed to know how far away [Teacher B] was when she was late on a weekday;
  3. you deny giving [Teacher B] advice or directions about work during your running time; and
  4. after [Teacher B] broke her hand, she had an argument with [Teacher A] in the staff room. You had a discussion with [Teacher B], and she shared her frustrations about not being able to exercise because of her hand. To assist [Teacher B], you told her you were happy to begin walking with her instead. During the times following this, [Teacher B] insisted on running.
  1. It is not in dispute that [Teacher B] was dating a man named [Person A] who was not a Departmental employee. I have carefully considered the evidence of [Teacher B] during her interview with the investigator on 8 December 2020, namely:
  1. [Teacher B] had been seeing [Person A] for six and a half years and it was apparent you did not like him. [Teacher B] had to lie to you about her relationship with [Person A] and tell you she was not seeing him anymore. [Teacher B] changed [Person A]'s name in her phone and removed his personalised ring tone so you would not find out she was still seeing him;
  2. [Teacher B] gave evidence you found out she was still seeing [Person A] during a day with the leadership team at the cricket. You requested to meet with her and [Teacher A] two days later. You told [Teacher B] she had lied about still seeing [Person A] and if she did not stop seeing him you could no longer trust her. You told [Teacher B] you would not be able to have her on the leadership team if you could not trust her; and
  3. [Teacher B] reported, at lines 314 to 318 of her ROI, that she felt as though you had given her an "ultimatum" that she either cease contact with [Person A] or lose her DP position at [the School]. [Teacher B] stated she felt threatened by this.
  1. I have also had regard to the evidence given by [Teacher A] during her interview with the investigator on 7 December 2020, namely:
  1. [Teacher A] stated at line 100 of her ROI, you stated words to the effect of "I'm going to tell her, if she doesn't stop seeing this guy, she's not going to be on my team"; and
  2. you insisted you and [Teacher A] meet with [Teacher B] at the Pig 'N' Whistle. You told [Teacher B] if she did not stop seeing [Person A], she would lose her position at [the School].
  1. I have considered your evidence that you were trying to support [Teacher B] in her relationship as a friend. However, I prefer the evidence of [Teacher B] and [Teacher A] that you acted towards [Teacher B] in such a way which made her believe her employment was at risk if she did not cease her personal relationship with [Person A]. By making these comments, I consider you  behaved inappropriately..
  2. I have had regard to [Teacher D]'s evidence that she felt pressured to come to lunch with you and the team during a pupil free day at the beginning of 2020. In particular, [Teacher D] gave the following evidence:
  1. on the relevant day, [Teacher D] had been given a "massive list of jobs to do". You told the team you felt like going to lunch and [Teacher D] informed you she would not be coming as she had too much work to do; and
  2. [Teacher D] stated, at line 60 of her ROI, you said words to the effect of "We are a team, we either all go or none of us get to go. Like are we all going to miss out because you need to do your work?".
  1. You submit you recall asking what work [Teacher D] needed to complete. [Teacher D] stated she needed to complete the staff induction packs for the following day. You say you and [Teacher A] offered to assist [Teacher D] with the induction packs once you all returned from lunch. You say [Teacher D] was happy to come to lunch when she was assured the work would get done.
  2. It is not in dispute [Teacher B] was appointed to the role of Acting DP (Inclusion) at the beginning of 2020. [The acting Deputy Principal] commenced in an Acting DP position at [the School] at the beginning of 2020. It is also not in dispute [Teacher B] and [the acting Deputy Principal] were friends prior to [the acting Deputy Principal] commencing at [the School].
  3. I have had regard to [Teacher A]'s evidence, at line 104 of her ROI, that you required  [Teacher B] to have a separate office from the three deputy principals as you "didn't like how [Teacher B] and [the acting Deputy Principal] are best friends". I have also considered [Teacher B]'s evidence in relation to the seclusion of her from the three other Deputy Principals. In particular:
  1. [Teacher B] gave evidence you started to separate and isolate her from everyone else after finding out she was still seeing [Person A];
  2. [Teacher B] stated her office was moved from the administration office to a block with the inclusion team. She considered this was a deliberate move and you made comments to the effect of "you'll never work in the same office as [the acting Deputy Principal], now that I've seen how friendly you are"; and
  3. [Teacher B] gave evidence that you told her if she continued to carpool to work with [the acting Deputy Principal] you would terminate [the acting Deputy Principal]'s employment.
  1. I have carefully reviewed your submissions in relation to the above particulars. I note you say the purpose of the creation of the DP (Inclusion) role was to be enable autonomous work with the inclusion team. You say the office for the role was to be located within the Student Support Centre to allow [Teacher B] to have her own office and engage in confidential meetings with stakeholders. You say [Teacher B]'s team was located in the Student Support Centre with her. You also say [Teacher B] was aware of the location of the DP (Inclusion) role prior to applying and being appointed to the role.
  2. I note you say the allegation you would end [the acting Deputy Principal]'s contract if she continued to carpool with [Teacher B] is "inherently unbelievable".
  3. As a Principal, it is not in dispute you may have been required to speak about the importance of trust with the leadership team and other staff at various times. I have considered the evidence given by [Teacher A] and [Teacher B] to the effect trust was very important to you and in order to keep your trust they needed to inform you of all complaints, including those against you. I find it significant [Teacher A] and [Teacher B] reported they felt their acting positions would be threatened if they did not comply with you.
  4. I have also considered your submissions and note you say you would not request staff inform you of complaints unless they required your support. You submitted that trust is important to any leadership team and you and other senior Departmental employees emphasised this during meetings between September 2019 and January 2020.
  5. I have had regard to the evidence given by [Teacher A] during her interview with the investigator on 7 December 2020, in particular:
  1. [Teacher A] gave evidence that during a professional development day at Oxley Golf Course, you were "really awful" towards her including by excluding her from conversations and snatching things from her;
  2. [Teacher A] and [the former Deputy Principal] had shared an office prior to his resignation in 2019. [The acting Deputy Principal] had been appointed to fill [the former Deputy Principal]'s position and would be sharing an office with [Teacher A]. You had expressed a desire for the three Deputy Principals to be together, so [Teacher A] made arrangements with [Teacher D] to move an additional desk into the office for [the acting Deputy Principal];
  3. the day prior to the professional development day, [Teacher A] met [Teacher D] and [Teacher D]'s husband at school to assist with moving a third desk into the office they shared. [Teacher D] had decided she wanted [the former Deputy Principal]'s old desk as it was bigger. [The acting Deputy Principal] was not concerned with where she would be sitting; and
  4. you sent [Teacher A] a series of text messages that night regarding desk changes which were made the day prior.
  1. I have reviewed the following text messages between you and [Teacher A]:

You: [Teacher A] can I just check how come [the acting Deputy Principal] isn't sitting where [the former Deputy Principal] was sitting?

[Teacher A]: [the acting Deputy Principal] didn't mind where she would sit so [Teacher D] took that desk Hope that was ok?

You: Well... it's not a great spot and I don't think it's fair to make her sit looking into the hallway.

[Teacher A]: Should we switch them back? Or move her desk so it faces us? We just though [Sic] if the desk was facing us when teachers or students walk in they could see what she was doing on her laptop.

You: And [Teacher B]  will know that she should be sitting  in [the former Deputy Principal]'s old spot [the acting Deputy Principal] would have just been trying to fit in. [Teacher D] was the one to move into the office. [The acting Deputy Principal] already had a desk there. May not seem like much but it's the little things.

[Teacher A]: I can talk to [Teacher D] and get her to swap?

You: I think [the acting Deputy Principal] should be where [the former Deputy Principal] was and if [Teacher D] wants to   move into that office then she needs to work in with you guys. Kind of a bit unfair to make the new girl be the one who has to make her desk fit in with you guys when it wasn't even [Teacher D's] office.

[Teacher A]: I can call [Teacher D] tomorrow on the way in and just say I've had some thought?

You: I think you definitely should at feast have [the acting Deputy Principal]in [the former Deputy Principal]'s desk. What message are you sending to staff if you've kicked [the acting Deputy Principal] out of that desk?

I didn't realise until [the acting Deputy Principal] was sitting there this afternoon and I kind of felt sorry for her.

  1. I have had regard to your submissions concerning the incident involving the moving of the desks. In particular, you say the above text messages are evidence of how you were empathising with the new DP, [the acting Deputy Principal], and ensuring the team was working inclusively, in accordance with your managerial  responsibilities.  You  also  submit  that,  where [Teacher A] and [Teacher D] had placed [the acting Deputy Principal]'s desk had no privacy and was not conducive to getting any work done.
  2. On balance, I consider that your text message, "What message are you sending to staff if you've kicked [the acting Deputy Principal] out of that desk?" was worded in an abrupt manner to [Teacher A] and lacked courtesy. However, I am not satisfied your conduct in respect of this example reaches the threshold of failing to treat [Teacher A] with respect and/or bullying.
  3. It is not in dispute you had a conversation in your office with [Teacher A] on 20 February 2020 concerning arrangements for the [Program] which [Teacher A] was in charge of coordinating. I am satisfied, on the balance of probabilities, you spoke to [Teacher A] in an inappropriate manner during this conversation. I have carefully considered the following evidence in arriving at this decision:
  1. [Teacher C]'s recollection that [Teacher A] was very upset and crying during the conversation on 20 February 2020. [Teacher C] gave evidence to the investigator that you were implying [Teacher A] had organised the contact with [the other School] to deliberately cause problems for her;
  2. [Teacher C] told the investigator she found your demeanour towards [Teacher A] to be unacceptable in relation the nature of the meeting. I  find  it  significant  that [Teacher C] stated she would not have liked to be spoken to like that (implying the way you spoke to [Teacher A] was not respectful);
  3. [Teacher D] told the investigator on 20 February 2020 [Teacher A] came into the office and was visibly upset. [Teacher D] stated [Teacher A] was getting "smashed"with text messages from you;
  4. your admission in your response that [Teacher A] was in tears during the incident, and your statement that it was not unusual for her to be upset at the time due to personal issues you were aware of. However, I do not consider this justifies your conduct, particularly where I am satisfied that [Teacher A] was on this occasion crying in response to your actions, not her personal issues; and
  5. on your own evidence, you were frustrated with [Teacher A] at the time. I am satisfied you expressed this frustration towards [Teacher A] inappropriately.
  1. Even if I were to accept you did not speak to [Teacher A] in an intimidating and aggressive manner (which I do not), I consider the nature and language of your subsequent text messages to [Teacher A] in relation to the incident were inappropriate and caused her to feel upset. In particular, you sent [Teacher A] the following text messages:

You: [Teacher A], [Teacher C] and I are feeling sick at just hearing that [Teacher E] and [Teacher F] have gone to [the other School] (where [Teacher G] is) to arrange a football program between our two schools? I cannot tell you how much the thought of having one of our new teachers being anywhere near the person who has tried to ruin me professionally and her now having a link again with our school has sickened me. And you have supported this initiative?

[Teacher A]: Hi [Appellant] where are you?

Are you able to chat??

I didn't know it was [Teacher G] he told me a man's name

You: I am in the beginning teachers meeting and I can't tell you how sick I feel [Teacher A]

You should have checked anything with other schools by me

And I spoke to you a few weeks ago about the DP from [the other School] ringing me about [Teacher G]

I'm just shocked

  1. You submit you sent the text messages above as you were in a meeting at the time and unable to discuss the matter with [Teacher A] directly. You say you were worried she would confirm the plans regarding the [Program] before you had a chance to speak to her. Even if I were to accept this, I consider there are more respectful ways to request [Teacher A] pause discussions regarding the [Program] until you had spoken to her.
  2. I am satisfied the way you spoke to [Teacher A], particularly where you stated you felt "sick" because of her actions, without giving [Teacher A] an adequate opportunity to respond was inappropriate, disrespectful towards her as a subordinate employee and when considered with the other examples above, amounts to bullying.
  3. I have carefully considered all the evidence before me in relation to the allegation. I am willing to accept that in some instances you may not have understood the negative impact of your interactions with [Teacher B] and [Teacher A]. However, I am of the view your conduct in speaking to [Teacher A] in an abrupt manner on 20 February 2020, sending subsequent text messages to [Teacher A] regarding the crocs program and your threatening comments regarding [Teacher B]'s position should she not heed your advice to stop seeing [Person A], amounts to bullying insofar as it demonstrates repeated unreasonable behaviour by you toward your DPs which creates a risk to their health and safety. I therefore find Allegation 5 substantiated on the balance of probabilities.
  4. On the basis of my findings in relation to Allegation Five, I have determined that pursuant to section 187(1)(g) of the Act you are liable to disciplinary action because you have contravened clauses 1.5 and 3.1 of the Code of Conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [52]
    The decision maker also considered the effects of the decision on the Appellant's human rights as follows:

Human Rights

I have given consideration to the relevant sections of the Human Rights Act 2019 when making disciplinary findings against you.

I acknowledge my decision to make disciplinary findings may impact on your human rights, including the right to take part in public life (through employment in the public service), the right to privacy and the right to reputation, which extends to protect professional relationships and reputation. However, in my view any limitation is demonstrably justified. This is because the public interest in ensuring that Departmental employees, including Principals, exercise their duties in a reasonable and appropriate manner, and adhere to the Queensland Public Service Code of Conduct at all times during their employment, presently outweighs the limited potential impact on your human rights.

I have also given consideration to your human rights in relation to my decision to continue the period of your suspension from duty on normal remuneration. In particular, I consider my decision to suspend you may impact on or engage your human rights to privacy and reputation, the right to take part in public life (through employment in the public service), and freedom of movement.

However, I consider that any potential infringement of your human rights arising from me continuing the period of your suspension from duty is outweighed by the nature and seriousness of the allegations against you, and the fact that your presence in the workplace whilst the allegations remain outstanding presents a potential risk to the good order and operation of the workplace, including with respect to staffing.

Relevant legislation

  1. [53]
    Section 131 of the PS Act provides for decisions against which appeals may be made and relevantly includes:

131Decisions against which appeals may be made

  1. An appeal may be made against the following decisions –

…

  1. a fair treatment decision;

…

  1. [54]
    Section 91 of the PS Act sets out the grounds for discipline and disciplinary action generally as follows:

91Grounds for discipline

  1. A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. been guilty of misconduct; or
  1. been absent from duty without approved leave and without reasonable excuse; or
  1. contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. contravened, without reasonable excuse, a requirement of the chief executive under section 179A(1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  2. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of this Act; or
  1. this Act, other than section 39 or 40; or
  2. another Act that applies to the employee in relation to the employee’s employment; or
  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. [55]
    Discipline 05/23 ('Directive 05/23') became operative on 1 March 2023 and supersedes Directive 14/20: Discipline.
  1. [56]
    The purpose of Directive 05/23 is to outline the process for managing disciplinary action in accordance with the PS Act.
  1. [57]
    Clause 9 of Directive 05/23 sets out the disciplinary process.  Clause 9.3 sets out the show cause process for a disciplinary finding, and cl 9.4 sets out the process of making a disciplinary finding.
  1. [58]
    Relevantly, cl 9.5 of Directive 05/23 sets out the show cause process for proposed disciplinary action as follows:

9.5 Show cause process for proposed disciplinary action

  1. The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).
  1. The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.
  2. The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act.
  1. In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. the seriousness of the disciplinary finding
  1. the employee’s classification level and/or expected level of awareness about their performance or conduct obligations  
  1. whether extenuating or mitigating circumstances applied to the employee’s actions
  1. the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. the employee’s explanation (if any)
  1. the degree of risk to the health and safety of employees, customers and members of the public
  1. the impact on the employee’s ability to perform the duties of their position
  1. the employee’s potential for modified behaviour in the work unit or elsewhere
  1. the impact a financial penalty may have on the employee
  1. the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.
  1. The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
  1. [59]
    Clause 9.6 of Directive 05/23 provides for the process with respect to making a decision on disciplinary action as follows:

9.6  Decision on disciplinary action

  1. the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken
  1. the chief executive must inform the employee of the decision in writing, including:
  1. the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. excluding a termination decision, information that the employee may appeal the decision on disciplinary action
  1. for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act
  1. the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. the revised disciplinary action is objectively less onerous  than the original action proposed, or
  1. the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. the employee has suggested the disciplinary action as an appropriate alternative penalty
  1. disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

Whether the decision was fair and reasonable

  1. [60]
    As noted above, the role of the Commission in an appeal such as this, is to conduct a review of the decision to determine whether it is fair and reasonable.
  1. [61]
    The Appellant has categorised her submissions in relation to the appeal under the following headings:
  1. the Teacher A matter;
  1. the Teacher B matter;
  1. the outrageous delay prejudiced the Appellant;
  1. the unlawful suspension and incompatibility with human rights;
  1. using the wrong test to assess evidence is unfair and unreasonable; and
  1. apprehension of bias.
  1. [62]
    The Department submits that the decision was fair and reasonable. In this regard, the Department contends that there was careful consideration of all the relevant material and that it was open to the decision maker to determine that the allegations were substantiated on the balance of probabilities. Further, the Department submits that the decision to impose disciplinary action was fair and reasonable.
  1. [63]
    I will consider the appeal by adopting the Appellant's categories set out above.

The Teacher A matter

  1. [64]
    The Appellant's submissions in relation to ''the Teacher A matter'' focus on allegations one and two.
  1. [65]
    The Appellant denies the allegations that she accessed, without appropriate authority, Teacher A's departmental Information Communication Technology ('ICT') user account after obtaining her password from her and further, the Appellant denies that she, without appropriate authority, altered and/or created and/or attempted to influence a departmental record that was to be created by Teacher A.
  1. [66]
    The Appellant contends that she was repeatedly pestered by Teacher A to look at her response to a complaint against the Appellant by the former Deputy Principal and a former teacher, Teacher H ('the complaint') and to provide input to Teacher A. The Appellant submits that she ''relented'' on the day the response was due and spent a short period with Teacher A on that day while Teacher A had the response document open on her computer. The Appellant submits that she gave general "guidance" to Teacher A on ''professionalism and not using emotive language''.
  1. [67]
    Although the Appellant requested Teacher A's password, she submits that she did not use the password to login into Teacher A's ICT account because ''she did not have the time''.
  1. [68]
    Further, the Appellant submits that she "gave in" to Teacher A's request to review the document and provided her with "general guidance on professionalism and not using emotive language".
  1. [69]
    In her submissions, the Appellant contends that the decision with respect to allegation one and two was not fair and reasonable as ''the allegations were found to be substantiated effectively solely on the basis of the statement of [Teacher A]".
  1. [70]
    However, and perhaps contradictory to the above contention, the Appellant also contends that the Department's allegations and findings diverge from Teacher A's evidence particularly with respect to how and when the Appellant allegedly worked on the document.
  1. [71]
    The Department submits that in substantiating allegation one and two, regard was had to the Appellant's admissions, the evidence of Teacher A and the documentary evidence. The findings of the Department in relation to the Teacher A matter are set out in the Department's submissions. It was found that the Appellant:
  1. a.
    obtained [Teacher A]'s password to her Information Technology (ICT) user account;
  1. b.
    accessed [Teacher A]'s ICT account on [Teacher A]'s laptop; and
  1. c.
    at least, influenced a response [Teacher A] was required to prepare in relation to a complaint made by another employee of the Respondent against the Appellant ([Teacher A] Response).

…

  1. [72]
    Although the Appellant denies accessing Teacher A's ICT user account, the Department was satisfied that the Appellant had obtained Teacher A's password and ''at least, influenced a response Teacher A was required to prepare'' in relation to the Complaint.
  1. [73]
    A review of the decision identifies that the decision maker had regard to the following evidence:
  1. documentary evidence including a sequence of SMS messages between the Appellant and Teacher A sent on 18 February 2020;
  2. the evidence of the Appellant and Teacher A, including both oral and written responses;
  3. documentary evidence of the documents said to have been altered by the Appellant; and
  4. the forensic examination results.
  1. [74]
    Allegations one and two arise in the context of an earlier investigation regarding the conduct of the Appellant. Relevantly, two former teachers at the school complained that the Appellant had communicated with them in an inappropriate manner. A senior investigator was appointed by the Department to investigate the earlier complaints. The investigator requested Teacher A and other staff members to provide a response to the investigation.
  1. [75]
    Following the receipt of Teacher A's response to the investigation, the Department received a further complaint that the Appellant had interfered in the investigation process by requesting that Deputy Principals provide the password and login details to their computers so that the Appellant could review and amend their typed responses to the investigation.
  1. [76]
    In finding that allegation one was substantiated, it is apparent that the decision maker had regard to not only Teacher A's evidence but also the evidence of the Appellant and the documentary evidence in the form of the SMS messages sent on 18 February 2020.
  1. [77]
    In this regard, I am satisfied that the decision maker had documentary evidence in the form of the SMS messages which identifies that the Appellant did request Teacher A's password to her laptop and that Teacher A provided that password to the Appellant. The request for the password was made in the context of the Appellant stating in the SMS message:

Hey [Teacher A] can I please have your laptop.

I need to get working on this thing.

  1. [78]
    It was accepted by the Appellant that the reference to "this thing" was Teacher A's response to the investigation.
  1. [79]
    Whilst the Appellant denies that she accessed the laptop, there is documentary evidence consistent with Teacher A's evidence that the Appellant requested her password to access her laptop and requested to use Teacher A's laptop to work on the response.
  1. [80]
    I consider that this evidence together with the evidence of the relevant witnesses provided a factual foundation for allegation one to be substantiated. Consequently, a finding that the allegation was substantiated was available to be made on the evidence before the decision maker.
  1. [81]
    The decision maker appropriately identified that allegation one was substantiated on the balance of probabilities. A review of the reasons for the decision identified the direct oral and documentary evidence that was analysed and considered by the decision maker. I do not consider that the Appellant has identified any relevant error in the approach adopted by the decision maker.
  1. [82]
    Accordingly, the decision with respect to allegation one is fair and reasonable.
  1. [83]
    Allegation two relates to the allegation that the Appellant, without appropriate authority, altered and/or created and/or attempted to influence a departmental record that was to be created by Teacher A.
  1. [84]
    During the course of the investigation, a forensic examination of the relevant computer was conducted.
  1. [85]
    However, ultimately the findings were of little consequence to the investigation.
  1. [86]
    Relevantly, allegation two was substantiated on the basis that the decision maker found that the Appellant sought to influence a department record that was to be created by Teacher A. Relevantly, the decision maker was not satisfied that there was sufficient evidence to establish that the Appellant altered or created the relevant record.
  1. [87]
    In finding that the Appellant sought to influence the relevant record, the decision maker had regard to, inter alia, the Appellant's evidence and Teacher A's evidence.
  1. [88]
    The Appellant's evidence was that she did discuss Teacher A's response to the complaint about the Appellant with Teacher A. The Appellant's evidence was that she provided Teacher A with "guidance" which was "more around the professionalism of, you know her responses, and making things succinct" about her response.
  1. [89]
    Accordingly, on the Appellant's own oral evidence, she sought to "guide" Teacher A's response to the investigator regarding the Appellant's conduct.
  1. [90]
    Consequently, I consider it was available on the evidence before the decision maker to conclude that allegation two was substantiated on the basis that she influenced Teacher A's response. It is apparent that the decision maker substantiated allegation two on the balance of probabilities. Accordingly, I consider the substantiation of allegation two to be fair and reasonable.

The Teacher B matter

  1. [91]
    The Appellant's submissions in relation to 'the Teacher B matter' focus on allegations three and four.
  1. [92]
    Allegations three and four were made in the context of the department investigating allegations about the Appellant. Allegations three and four arise out of a complaint that was raised against the Appellant regarding her alleged inappropriate questioning of a student in Teacher B's presence.
  1. [93]
    The Appellant's case was that during the relevant period Teacher B was required to respond to two matters which were separate and distinct from the complaint being investigated by the Department. The Appellant contends that Teacher B sought her assistance in providing a response in relation to two matters.
  1. [94]
    In her submissions, the Appellant submits that, Teacher B had sent photographs of her response in relation to the complaint to the Appellant for her advice. The Appellant contends that she had not looked at the photographs at that stage and only spoke to Teacher B about the response on a run they went on together that morning. The Appellant submits that she told Teacher B ''to be honest'' and to ''not lie to protect'' her.
  1. [95]
    The second matter concerned an ''SP2 decision''[6] that Teacher B was required to make regarding the conduct of another classroom teacher. The Appellant submits that Teacher B sought the Appellant’s ''counsel on the matter'' and assistance in writing a response to Human Resources. The Appellant submits that she agreed to assist Teacher B and requested her password to access her ICT account however contends that she never received it.
  1. [96]
    The Appellant also contends that emails between herself and Teacher B were not retrieved as part of the investigation process despite Teacher B in her interview with the Department stating that such emails were exchanged.
  1. [97]
    The Department submits that the Appellant's contention that the Department failed to retrieved emails exchanged between herself and Teacher B does not undermine the decision with respect to allegations three and four.
  1. [98]
    The Department submits that allegations three and four broadly related to the Appellant's access to Teacher B's laptop and that these allegations were found to be substantiated based on the Appellant's own admissions, coupled with the evidence of Teacher B and probative documentary evidence.
  1. [99]
    The Appellant has not established the probative value of the emails. Relevantly, the emails or Teacher B's evidence that were sent, did not form part of the decision maker's reasons.
  1. [100]
    Further to this, the Department submits that in making its findings, regard was had to the following:
  1. that the Appellant admitted to asking Teacher B for her ICT password;
  1. that Teacher B read out part of the Teacher B Response to her; and
  1. that Teacher B left her laptop in the Appellant office and later collected it.
  1. [101]
    The findings of the Department with respect to the Teacher B matter are set out in the Department's submissions. In coming to its decision, the Department was satisfied that:
  1. a.
    obtained [Teacher B]'s password to her Information Technology (ICT) user account;
  1. b.
    accessed [Teacher B]'s ICT account on [Teacher B]'s laptop; and
  1. c.
    at least, influenced a response [Teacher B] was required to prepare in relation to a complaint alleging the Appellant had inappropriately questioned a student ([Teacher B] Response).

…

  1. [102]
    As noted above, allegations three and four arise in the context of an investigation regarding the conduct of the Appellant towards a student. Relevantly, as part of the investigation into that allegation, Teacher B was asked to provide a response. It is alleged that Teacher B advised the Appellant that she was to provide a response and that the Appellant sought to obtain Teacher B's password to her user account and accessed Teacher B's account and further, that the Appellant influenced Teacher B's response to the complaint.
  1. [103]
    In substantiating allegations three and four, the decision maker had regard to, inter alia:
  1. documentary evidence including screenshots of SMS messages sent between the Appellant and Teacher B;
  2. Teacher B's evidence, both oral and written; and
  3. the Appellant's evidence, both oral and written.
  1. [104]
    The documentary evidence referred to in the decision includes a screenshot of SMS messages from the Appellant to Teacher B which, inter alia, state:

I need your password

I have a response for [the investigator]. For you

  1. [105]
    There was also evidence of a text message Teacher B sent to the Appellant wherein she, after referencing the email to the investigator, requested if she could send a photo to the Appellant for the Appellant to check.
  1. [106]
    In addition to the documentary evidence, the decision maker had other evidence, including the evidence of Teacher B and the Appellant, before them.
  1. [107]
    Teacher B's evidence was that the Appellant worked on Teacher B's responses to the investigator using Teacher B's laptop. Teacher B's evidence was that a lot of the wording in her written response was that of the Appellant.
  1. [108]
    The Appellant denied the allegations generally and stated the text messages were sent in respect of separate matters. However, the Appellant accepted that she asked Teacher B for her password albeit in the context of assisting Teacher B with a separate response.
  1. [109]
    In any event, and as concluded by the decision maker, the Appellant's admission that she requested the password for another matter is not a point that assists the Appellant.
  1. [110]
    It is clear from the decision that the decision maker did not accept the Appellant's alternative explanation for the text messages.
  1. [111]
    On the evidence before the decision maker, it is available to conclude that the text messages were sent in the context of the Appellant seeking access to Teacher B's user account in order to influence Teacher B's response to the investigator. Such a conclusion is consistent with Teacher B's evidence and the objective evidence, including that the sending of the messages coincided with the timing of the preparation of the response.
  1. [112]
    I consider that the decision maker had regard to the available evidence and that it was fair and reasonable to conclude that the Appellant requested Teacher B's password, that the Appellant accessed Teacher B's laptop when Teacher B left it with the Appellant, and that the Appellant influenced Teacher B's response to the investigation. Relevantly, the decision maker did not find that the Appellant altered or created a relevant document in substantiating allegation four. Rather, allegation four was substantiated on the balance of probabilities, on the basis that the Appellant influenced Teacher B's response. Consequently, I consider that the decision with respect to allegation three and four is fair and reasonable. 

Allegation Five

  1. [113]
    Allegation five alleged that the Appellant bullied subordinate staff members. 
  1. [114]
    The decision substantiated this allegation on the balance of probabilities.
  1. [115]
    The Appellant's written submissions do not specifically contest the decision maker's reasoning with respect to allegation five. However, allegation five is raised in the context of the Appellant's submissions regarding the assessment of the evidence which will be addressed further below.

Unreasonable delay and alleged flawed investigation

  1. [116]
    The Appellant submits that the delay in the investigation and the subsequent disciplinary process has disturbed the fairness of the investigation.
  1. [117]
    As an adjunct to this contention, the Appellant argues that the "contentious oral accounts" would almost certainly have been resolved had all the computers been examined immediately. The Appellant's submissions are in broad terms in this respect but do contend that such an examination would have allowed her the ability to identify the document's properties including the date and time the document was created and worked on. 
  1. [118]
    The Appellant further contends that Teacher A, Teacher B and Teacher D were given a long period of time to provide their version of the events surrounding the allegations against the Appellant. The Appellant submits that Teacher A and Teacher B's version of the events were ''strikingly similar'' and that collusion between the witnesses is evident.
  1. [119]
    Finally, in her submissions, the Appellant expresses a view that the delay cannot be attributed to the matter being referred to the Crime and Corruption Commission ('CCC') and the Queensland Police Service ('QPS') as those reviews were completed in a timely manner. Further to this, the Appellant disputes the Department's submission that the investigation was carried out expeditiously as there is a two-year unexplained delay that followed the finalisation of the CCC and QPS referrals.
  1. [120]
    The Department submits that due to staffing issues the matter had to be reallocated to another investigator, however, maintains that the investigation and disciplinary process were conducted in as timely a manner as possible. The Department denies that any delay rendered the investigation or decision as unfair or unreasonable. Further to this, the Department contends that the Appellant has not suffered financial hardship because she has, at all relevant times, been suspended from duty on normal remuneration.
  1. [121]
    The Department submits that the Appellant's claim that the decision was based only on the oral accounts of the witnesses is misleading as the Appellant has failed to acknowledge that the Department also considered documentary evidence and the Appellant's own evidence in response to the allegations.
  1. [122]
    In respect of the Appellant’s contention that the Department failed to seize the laptops of Teacher A and Teacher B, the Department submits that a forensic examination of the laptops would not lend any evidentiary value to the investigation process. This is because the examination would not have distinguished between the relevant employee and the Appellant logging into the laptop.
  1. [123]
    The matters raised by the Appellant go beyond matters of mere delay and seek to criticise an absence of forensic computer evidence in the investigation and the possibility that the witnesses colluded with respect to their evidence.
  1. [124]
    It is noted, however, that a forensic examination of the laptops was conducted. The Appellant does not criticise in any meaningful way the examination that was conducted, nor does the Appellant identify how that forensic examination was affected (or not) by any alleged failure to seize the laptop at an earlier point in time.
  1. [125]
    The submissions also do not have regard to the particulars of the findings.  Allegations two and four were only substantiated to the extent that the decision maker was satisfied that the Appellant influenced the relevant records. The decision did not find that the Appellant either altered or created the relevant document. Accordingly, the forensic evidence referred to by the Appellant could only be relevant with respect to allegation one and three. However, obtaining the properties of any document would not assist in clarifying the matters with respect to allegation one and three.
  1. [126]
    The Appellant alleges collusion, inter alia, between Teacher A, Teacher B and Teacher D. The Appellant's contentions in this respect are no more that unsupported allegations. Further, both Teacher A and Teacher B were involved in separate incidents involving the Appellant. The findings of the decision maker were based on the separate and distinct bodies of evidence regarding two separate incidents. I am not satisfied that the Appellant has adduced any evidence of collusion between the witnesses so as to render the decision as one that is not fair or reasonable.
  1. [127]
    I am not satisfied that any of the matters raised by the Appellant under the current heading act to disturb the decision so that it is one that is not fair or reasonable.

Unlawful suspension and the Appellant's human rights

  1. [128]
    The Appellant contends that the disciplinary process and subsequent decision gave rise to an unreasonable infringement on her human rights in accordance with the Human Rights Act 2019 (Qld) ('HR Act').
  1. [129]
    In her submissions, the Appellant contends that the suspension letter contravened the requirements set out in s 137(2)(a) of the Public Service Act.[7] Section 137(2)(a) of the Public Service Act provides the following:

137Suspension

  1. The chief executive of a department may, by notice, suspend a person from duty if the chief executive reasonably believes—
  1. for a public service officer—the proper and efficient management of the department might be prejudiced if the officer is not suspended; or
  1. for a public service employee—the employee is liable to discipline under a disciplinary law.
  1. The notice must state—
  1. when the suspension starts and ends; and
  1. whether the person is entitled to remuneration for the period of the suspension; and
  1. the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration.

…

  1. [130]
    Relevantly, the suspension letter referred to by the Appellant pre-dates the decision which is the subject of this review.
  1. [131]
    The Appellant submits that the suspension letter did not provide an end date and instead provided that the suspension ''…will cease at the conclusion of all necessary processes to determine [the Appellant's] liability for discipline action''. As a result of this, the Appellant submits that the suspension was unlawful and that it ''infected'' the subsequent disciplinary process and ultimate decision.
  1. [132]
    It is not necessary for a letter of suspension to provide an end date if, for instance, an event is described with sufficient particularly instead.
  1. [133]
    Further, the Appellant submits that the conduct of the Department during the investigation process and the circumstances of the delay are not compatible with her human rights. In particular, the Appellant contends that her right to take part in public life,[8] particularly by way of employment with the public service, has been compromised. Further, the Appellant submits that her right to privacy, her right to have a reputation[9] and her right to freedom of movement[10] have as well been compromised.
  1. [134]
    In its reply submissions, the Department denies that the discipline process and decision unreasonably infringed on the Appellant's human rights. The Department submits that although the disciplinary findings may impact the Appellant's human rights, it was determined after assessing the matter and having regard to the relevant code of conduct and the public interest, that ''any limitation would be limited and was demonstrably justified''.
  1. [135]
    Further, the Department submits that the consideration of the Appellant's human rights under the HR Act support its contention that the decision was lawful, fair and reasonable.
  1. [136]
    The decision to suspend the Appellant on full remuneration appears to have had regard to and considered the Appellant's human rights.
  1. [137]
    However, in any event, I do not consider that the decision to suspend the Appellant on full remuneration is an appealable decision for the purpose of the PS Act, nor further, does it fall within the ambit of the decision which is the subject of this appeal.
  1. [138]
    For these reasons, it is unnecessary for me to consider the Appellant's submissions with respect to the earlier decision to suspend her on full remuneration any further.

The test used to assess the evidence

  1. [139]
    The Appellant submits that the matter was ''wrongly regarded'' as ''documentary in nature'' which has the effect of ''dismissing the prejudice from the delay''.
  1. [140]
    The Appellant submits that the Department's approach to assessing the evidence is ''legally erroneous, unfair and unreasonable'' because the decision maker failed to have regard to the following considerations raised by Dixon J in Briginshaw v Briginshaw:[11]
  1. ''the nature and consequences of the facts or facts to be proved'';
  1. ''the seriousness of an allegation made'';
  1. ''the inherent unlikelihood of an occurrence of a given description''; or
  1. ''the gravity of the consequences flowing from a particular finding''.
  1. [141]
    The Appellant contends that the Department did not have regard to the above matters and as a result, the investigation produced, ''inexact proofs, indefinite testimony, or indirect inferences''.[12] Further, having regard to the principles enunciated in Briginshaw v Briginshaw, the Appellant submits that the decision maker ''failed to apply the rigour required by the law for a fair and reasonable process and decision''. In her submissions, the Appellant notes by way of example that the decision maker failed to examine ''the carefully presented sequences of events supported by text messages and reasonable inferences that could be drawn from those messages''.
  1. [142]
    In its reply submissions, the Department submits that in making their decision, the decision maker ''carefully considered'' all the relevant information which included the Appellant's submissions, witness accounts and documentary evidence. In doing this, the Department submits that the decision maker assessed the credibility and probative value of the evidence gathered and their findings were open to be made on the evidence and was consistent with the relevant directive and PS Act.
  1. [143]
    I do not consider that the terms of the decision support a conclusion that the Department "wrongly regarded the matter as documentary in nature" which had the effect of dismissing the prejudice of delay.
  1. [144]
    It is apparent from the terms of the decision that this matter was comprised of both oral and written evidence, a matter that was apparent in the terms of the decision itself. The decision maker expressed a view that the delay did not render the investigation as flawed for two reasons, firstly, being that the delay was for a limited time, and secondly, "much of the evidence relied [on] was documentary in nature."
  1. [145]
    Further, the Appellant does not raise any substantive and cogent errors that arose from the delay in her submission and consequently, has not established that the delay in the investigation rendered the decision as one that was not fair and reasonable.
  1. [146]
    However, inconsistent with this contention, Appellant contends that, "the wrong test to assess evidence was applied" the Appellant acknowledges that the allegations were substantiated on "the balance of probabilities".  A review of the decision also confirms that with respect to each allegation, the decision maker substantiated the allegations "on the balance of probabilities". Consequently, the correct test was clearly applied by the decision maker.
  1. [147]
    It appears at the heart of the Appellant's submission is a contention that the decision maker failed to have regard to the principles outlined in Briginshaw v Briginshaw[13] when applying the test.
  1. [148]
    Whilst not altering the civil standard of proof, the principles in Briginshaw v Briginshaw[14] identify that the nature and gravity of the subject matter may be considered when determining if the standard of proof has been met.
  1. [149]
    I have already expressed a view with respect to the cogency of the evidence relied upon with respect to allegations one to four above. Having formed a view that it was available on the direct oral and written evidence before the decision maker to substantiate allegations one to four, I will not revisit these matters here.
  1. [150]
    As noted above however, the Appellant raises some limited contentions with respect to allegation five.
  1. [151]
    Allegation five consists of an allegation that the Appellant bullied subordinate staff members. The decision maker correctly identifies what bullying amounts to in the decision.
  1. [152]
    The allegation initially relied on a number of particulars. Ultimately, the decision maker did not substantiate a number of the particulars relied on but did find allegation five was substantiated on the basis that the Appellant spoke to Teacher A in an abrupt manner on 20 February 2020, the Appellant sent subsequent text messages to Teacher A regarding the Program and made threatening comments regarding Teacher B's position, should she not heed the Appellant's advice to stop seeing her partner.
  1. [153]
    In finding the allegation was substantiated on the basis of the above three particulars, the decision maker identified and analysed the evidence before them.
  1. [154]
    Relevantly, the decision maker had regard to documentary evidence, including SMS messages, and the oral evidence of Teacher A, Teacher B, Teacher C, Teacher D and the Appellant. The decision reveals that the decision maker considered and analysed the evidence and ultimately substantiated the allegation on the balance of probabilities.
  1. [155]
    The Appellant contends that a direct independent witness, Teacher C was not asked any questions in the context of allegation five.
  1. [156]
    A review of the investigation report indicates that Teacher C was interviewed as part of the investigation. A summary of her evidence indicates that Teacher C was interviewed about the relevant interaction between the Appellant and Teacher A and gave responsive evidence. I do not consider that the evidence is inconsistent with the findings with respect to allegation five.
  1. [157]
    I am satisfied that the correct test was applied by the decision maker with respect to each of the allegations. I do not consider that the Appellant has established that the incorrect test was applied so as to render the decision as not fair and reasonable.

Apprehension of bias

  1. [158]
    The Appellant submits that she ''is the subject of discriminatory treatment'' on the basis that the Department has not provided a reasonable explanation as to why it has not ''pursued'' Teacher A and Teacher B with respect to the alleged conduct. In her submissions, the Appellant contends that disciplinary action should have been taken against both Teacher A and Teacher B as they ''confessed'' to the alleged conduct. The Appellant submits that this ''differential treatment'' has ''the appearance of being arbitrary or capricious and raises an apprehension of predetermination about the outcome for the Appellant."
  1. [159]
    The matters raised by the Appellant fall outside consideration of whether the decision to, inter alia, substantiate each of the five allegations was fair and reasonable. The decision is made following an investigation which was informed by a terms of reference. The terms of reference identifies that consideration was being had to the Appellant's conduct.
  1. [160]
    A review of the decision has been conducted and it has been concluded that the decision was available to be made on the evidence that was before the decision maker. It is not apparent that the decision is infected by bias.
  1. [161]
    Whether the Department has determined to take or not take steps to commence a disciplinary process with respect to several of the witnesses in this matter, is an irrelevant consideration with respect to the issue to be determined in this appeal which is whether the decision is fair and reasonable.

Conclusion

  1. [162]
    For the forgoing reasons, the Appellant failed to establish that the decision which is the subject of the appeal is not fair and reasonable. Consequently, the decision is confirmed.

Order

  1. [163]
    Accordingly, I make the following order:
  1. Pursuant to r 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld), the Appellant, the School and the witnesses are de-identified.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] The Public Service Act 2008 (Qld) has since been repealed and the equivalent provision currently applicable is s 91 of the Public Sector Act 2022 (Qld).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[4] [1993] QCA 012; [1995] 2 Qd R 10.

[5] [2021] QIRC 263 [40] – [46].

[6] The Appellant's submissions described a ''SP2 Decision'' as a report of significant harm to a student as a result of actions by an employee.

[7] The equivalent provision currently applicable is s 101 of the Public Sector Act 2022 (Qld).

[8] Human Rights Act 2019 (Qld) s 23.

[9] Ibid s 25.

[10] Ibid s 19.

[11] Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw v Briginshaw').

[12] Ibid.

[13] Briginshaw v Briginshaw (n 11).

[14] Ibid.

Close

Editorial Notes

  • Published Case Name:

    AP v State of Queensland (Department of Education)

  • Shortened Case Name:

    AP v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 170

  • Court:

    QIRC

  • Judge(s):

    Hartigan DP

  • Date:

    17 Jul 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
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
2 citations
Jump To
Cite 1 - [2021] QIRC 263
Cite 2 - [2021] QIRC 263
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
J v L & A Services Pty Ltd[1995] 2 Qd R 10; [1993] QCA 12
4 citations
Jump To
Cite 1 - [1993] QCA 12
Cite 2 - [1993] QCA 12
Cite 3 - [1995] 2 Qd R 10
Cite 4 - [1995] 2 Qd R 10

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) [2024] QIRC 1932 citations
TB v State of Queensland (Queensland Health) (No. 2) [2025] QIRC 1401 citation
1

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