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Gurdler v State of Queensland (Queensland Health)[2024] QIRC 213

Gurdler v State of Queensland (Queensland Health)[2024] QIRC 213

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gurdler v State of Queensland (Queensland Health) [2024] QIRC 213

PARTIES:

Gurdler, Kristyn

Appellant

v

State of Queensland (Queensland Health)

Respondent

CASE NO:

PSA/2024/63

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

30 August 2024

MEMBER:

Caddie IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1) of the Industrial Relations Act 2016:

  1. The decision appealed against in relation to disciplinary findings is confirmed.
  2. The decision appealed against in relation to disciplinary action is set aside and returned to a new decision- maker, with a copy of this decision.
  3. The new decision-maker will be a suitably senior officer from another HHS or the Department, with appropriate delegation.
  4. The show cause notice on disciplinary action is to be issued within 21 days of this decision.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where disciplinary findings made against the appellant post-separation – where appellant appeals the substantiation of allegations – whether the decision was fair and reasonable – where an investigation preceded the disciplinary process – where the Commission has no jurisdiction for judicial review – whether the appellant engaged in the conduct subject of the allegations – where the appellant alleges insufficient particulars to respond to the allegations – where the appellant alleges the disciplinary process failed to afford natural justice – where the allegations are substantiated – where failure to provide a show cause process on disciplinary action was unfair and unreasonable – where the decision on disciplinary action is set aside and returned to a new decision-maker.

LEGISLATION AND INSTRUMENTS:

Code of Conduct for the Queensland Public Service (1 January 2011).

Crime and Corruption Act 2001 (Qld) s 15.

Hospital and Health Boards Act 2011 (Qld) Pt 9.

Industrial Relations Act 2016 (Qld) ss 531, 562B, 562C, 564.

Judicial Review Act 1991 (Qld) s 3.

Public Sector Act 2022 (Qld) ss 91, 95, 98, 131, 133.

Public Sector Commission Directive 5/23 – Discipline (1 March 2023).

Public Sector Commission Directive 17/20 – Workplace Investigations (25 September 2020 – 9 June 2024).

Public Sector Commission Directive 22/09 – Gifts and Benefits (1 January 2010).

Queensland Health HR Guideline QH-GDL-113-1:2017 – Conflicts of Interest.

Queensland Health HR Policy E9: Requirements for reporting suspected corrupt conduct (August 2019).

Queensland Health HR Policy E10: Discipline (June 2021).

Uniform Civil Procedure Rules 1999 (Qld) rr 166, 167.

CASES:

Attorney-General for the State of Queensland v Wood [2023] QSC 78.

Blatch v Archer [1774] 1 Cowp 63.

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

British Railways Board v Herrington [1972] AC 877.

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16.

Coutts v Close [2014] FCA 19.

Ebner v Official Trustee in Bankruptcy [2000] HCA 63; (2000) 205 CLR 337.

Goodall v State of Queensland & Anor [2018] QSC 319.

Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162.

In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586.

Ivers v McCubbin [2004] QSC 342.

King v Workers' Compensation Regulator [2019] QIRC 134.

Maher v Isaac Regional Council [2020] QIRC 191.

Manttan v State of Queensland (department of Education) [2022] QIRC 238.

McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308.

Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326.

Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283.

PDS Rural Products Ltd v Corthorn (2004) 143 IR 354.

Perry v State of Queensland (Queensland Health) [2023] QIRC 348.

QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419.

Regan v State of Queensland (Department of Education) [2022] QIRC 335.

Schaale v Hoechst Australia Ltd (1993) 47 IR 249.

Vega Vega v Hoyle & Ors [2015] QSC 111.

Reasons for Decision

  1. [1]
    Ms Kristyn Gurdler ('the Appellant') was employed by the State of Queensland (Queensland Health) ('the Respondent') in the Children's Health Queensland Hospital and Health Service ('CHQHHS'), acting as a Principal Project Officer, Facilities and Capital Infrastructure.[1]
  1. [2]
    On 15 February 2022, the Appellant received a letter from Mr Frank Tracey, Health Service Chief Executive, CHQHHS ('the decision-maker'), advising that he was in receipt of information from the Crime and Corruption Commission which raised concerns about her workplace conduct. Mr Tracey advised Ms Gurdler that she would be placed on alternative duties while the concerns were being investigated.[2]
  1. [3]
    An investigation subsequently commenced pursuant to Part 9 of the Hospital and Health Boards Act 2011 (Qld) ('HHB Act').
  1. [4]
    On 20 May 2022, the Appellant tendered her letter of resignation, effective 3 June 2022.
  1. [5]
    On 12 July 2023, Mr Tracey wrote a letter to the Appellant, noting that following the investigation of the Appellant's involvement in procurement activity, she was being asked to show cause ('first show cause letter') as to why a disciplinary finding should not be made against her in respect of eight allegations.
  1. [6]
    The allegations broadly related to the Appellant failing to declare her own conflicts of interest and those of her direct supervisor, Ms Melinda Fitzgerald, Property and Leasing Manager at CHQHHS, that were known to her. These conflicts were in relation to the Appellant's father, Mr Mark Gurdler, Director of ICM Maintenance Pty Ltd, and other ICM employees. They in summary include:
  1. Failure to fully and transparently declare a conflict of interest in her role in the procurement and contract management of the Tony Albert Boomerang Art Sculpture Installation Project between 2016 and 2018 ('Boomerangs Project').
  1. Failure to report a conflict of interest held by Ms Melinda Fitzgerald in relation to the Boomerangs Project.
  1. Failure to fully and transparently declare a conflict of interest in her role in the procurement and contract management of the Alderley Village Refurbishment works in 2018.
  1. Failure to report a conflict of interest held by Melinda Fitzgerald in relation to the Alderley Village Refurbishment works.
  1. Failure to declare a conflict of interest in her role in the procurement and contract management of the Queensland Children's Hospital Ophthalmology Outpatient Area remodelling project in 2018.
  1. Failure to report on a conflict of interest held by Melinda Fitzgerald in relation to the Ophthalmology Outpatient Area remodelling project.
  1. Failure to fully and transparently declare a conflict of interest in her role in the procurement and subsequent contract management of the Deception Bay Community Facility Design and Construct Project in 2019.
  1. Failure to fully and transparently declare a conflict of interest in her role in the procurement and subsequent contract management of the Level 8B Playpen to Office Space Project in 2019.
  1. [7]
    The first show cause letter was supplemented with 23 attachments to be considered by the decision-maker in relation to the allegation:

• Attachment 1 – Alternative arrangements [sic.] letter dated 15 February 2022

• Attachment 2 – Your resignation letter received 20 May 2022

• Attachment 3 – Acknowledgement of your resignation by Mr Fletcher

• Attachment 4 – Investigation report summary of findings

• Attachment 5 – Public Sector Commission Discipline Directive 5/23[3]

• Attachment 6 – Chapter 3 of the Public Sector Act 2022, section 95

• Attachment 7 – Role Description – Facilities Support Officer

• Attachment 8 – Details of 43 Longboard Circuit, Salt Village Kingscliff NSW 2487

• Attachment 9 – Email from Ms Fitzgerald dated 7 March 2018

• Attachment 10 – Acknowledgement of Obligation Form dated 10 May 2018

• Attachment 11 – Tender submission by ICM for Alderley Village dated 21 May 2018

• Attachment 12 – CHQHHS024-2018 Alderley Village Evaluation report dated 29 May 2018

• Attachment 13 – QH Conflicts of Interest Guideline[4]

• Attachment 14 – Email correspondence with ICM re Ophthalmology project

• Attachment 15 – Email to Ms Fitzgerald dated 7 March 2018, subject line 2D/E Final Quotes

• Attachment 16 – Email correspondence dated 17 April 2018 to ICM advising of successful offer

• Attachment 17 – Email correspondence dated 16 July 2019 relating to the Deception Bay project

• Attachment 18 – Acknowledgement of Obligation declaration form dated 25 July 2019

• Attachment 19 – CHQHHS191-2019 Deception Bay Evaluation Report

• Attachment 20 – Acknowledgement of obligation form regarding the Playpen Project

• Attachment 21 – CHQHHS108-2019 Level8B Playpen Evaluation Report

• Attachment 22 – Code of Conduct for the Queensland Public Service

• Attachment 23 – Human Resources Policy E10 - Discipline 

  1. [8]
    The Appellant, through her lawyers, responded to the first show cause letter ('first show cause letter response') on 11 August 2023. The Appellant's response raised, amongst other issues, that the investigation conducted under Part 9 of the HHB Act, and the subsequent disciplinary process, were invalid. This was raised with reference to the decision of Vega Vega v Hoyle[5] and disclosure requirements in Queensland Health Human Resources Policy E10: Discipline.[6]
  1. [9]
    Following consideration of the first show cause letter response, Mr Tracey issued a revised show cause letter ('second show cause letter') to the Appellant's legal representatives on 6 September 2023. Mr Tracey did not agree with the assertion made that the investigation was invalid but indicated he would not rely on the redacted summary of outcomes attached to the first show cause notice. Mr Tracey also amended the possible grounds for discipline for allegations two, four, and six.
  1. [10]
    A further three attachments supplemented the second show cause letter to replace the documents identified in the first show cause response as not within the timeframe of the allegations:

• Attachment 24 – Discipline Directive 5/23

• Attachment 25 – Queensland Health Conflicts of Interest Guideline QH-GDL-113-1:2017

• Attachment 26 – HR Policy E9 – Requirements for reporting corrupt conduct

  1. [11]
    On 21 September 2023, the Appellant's legal representatives provided a response to the second show cause letter ('second show cause response'). The Appellant's legal representatives maintained their assertions that the investigation was invalid, and add new allegations of apprehended bias on behalf of Mr Tracey on the basis that he has relied upon evidence taken in the investigation process. The second show cause letter response then went on to identify particulars in each of the eight allegations which the Appellant's lawyers alleged no evidence had been provided for.
  1. [12]
    The Appellant's legal representatives further alleged:

… you have not provided any evidence to establish most of the particularised facts contained in the First Show Cause Notice.

You cannot simply assert particularised facts without providing our client with the evidence that you rely upon to establish those facts.

It is not for our client to cast her mind back up to seven years and try to remember whether the facts you particularise are true and correct or not, particularly in circumstances where she is no longer an employee of the CHQHHS and therefore has no access to relevant documentation.

  1. [13]
    On 11 March 2024, Mr Tracey issued the Appellant, through her lawyers, with a disciplinary finding decision ('the decision letter'). It found that on the balance of probabilities, allegations one, two, three, and seven were substantiated and allegations four, five, six and eight were not substantiated. Mr Tracey found:

• In relation to Allegation 1, 3 and 7, I find that pursuant to section 91(1)(h) of the Act, Ms Gurdler contravened, without reasonable excuse, a relevant standard of conduct applying under an approved code of conduct, namely clause 1.2 (Managing conflicts of interest) of the Code of Conduct for the Queensland Public Service.

• In relation to Allegation 2, I find that pursuant to section 91(1)(h) of the Act, Ms Gurdler contravened, without reasonable excuse, a relevant standard of conduct applying under an approved code of conduct, namely clause 1.1 (Commit to the highest ethical standards) of the Code of Conduct for the Queensland Public Service.

  1. [14]
    Pursuant to ss 95(7) and 95(8) of the PS Act, Mr Tracey also decided that had the Appellant's employment not ended, the disciplinary action that would have been taken against her was a reduction in classification level, and therefore decided to make a disciplinary declaration.
  1. [15]
    The decision to substantiate the allegations and the decision to make a disciplinary declaration were communicated in the same decision letter.
  1. [16]
    In making the decision to issue a disciplinary declaration, the decision-maker had regard to the following factors:

• Children's Health Queensland is committed to ensuring its employees act ethically, professionally, impartially, and upload [sic.] the principles of the Code of Conduct.

• As a public sector employee, Ms Gurdler understood, or ought to have understood, the standards of conduct expected of her and the seriousness of the conduct that was alleged against her.

• Given the very nature of her role as Principal Project Officer meant that she had regular involvement in tenders for public works, and ought to have been particularly alert to appropriately managing actual or suspected conflicts of interest of herself or others in accordance with the Code of Conduct.

  1. [17]
    The disciplinary decision to substantiate allegations one, two, three and seven leading to disciplinary findings and the decision to issue a disciplinary declaration are the subject of this appeal, filed 2 April 2024.
  1. [18]
    Directions for submissions were issued on 3 April 2024, along with a reminder to lawyers purportedly acting for the Appellant that legal representation is not permitted in public sector appeals pursuant to s 530A of the PS Act.
  1. [19]
    On 15 April 2024, the Appellant by email objected to the documents filed by the Respondent as being incomplete for failing to include a copy of an external investigator's report, and lacking documentary evidence relied upon by the decision-maker to particularise the allegations. The Appellant as a result requested an extension of time on filing her submissions.
  1. [20]
    A mention was held on 19 April 2024 to discuss these objections. At the mention I noted that my review is limited to the material that was available to the decision-maker at the time the decision was made. I determined that the information relevant was the material contained in the first and second show cause notices, and their attachments, and requested that the Respondent file the missing attachments. I determined that the investigation report preceding the disciplinary process was not required for my review.[7]
  1. [21]
    I also indicated to the Appellant that the sole focus to date on procedural and legal issues meant, based on my preliminary review of the file, and without the benefit of her submissions, there was no material before the Commission responding to the substance of the allegations.[8]
  1. [22]
    Following from the mention, I issued new directions which specified the Respondent's material set out in the show cause letters which was yet to be filed, and extended the timeframe for the parties to file submissions. Both parties subsequently filed their submissions and submissions in reply.

Appeal grounds

  1. [23]
    The Appellant appeals the decisions on the basis that the findings are unfair and unreasonable. The Appellant's grounds as listed in the appeal notice are:

1.The decision (and the preceding disciplinary process) was made in reliance upon an investigation conducted under Part 9 of the Hospital and Health Boards Act 2011 that was invalid because of a denial of natural justice in the course of that investigation: Vega Vega

2. The decision is infected by a reasonable apprehension of bias on the part of the decision-maker.

3. The decision-maker relied upon a QH guideline that was not in operation and therefore had no application to Allegations 1 and 2 and, in any event, did not establish the positive duty alleged against the Appellant in Allegation 2.

4. The decision as [sic.] made in contravention of s 9.3(d) of PSC Directive 5/2 "Discipline".

5. The decision was made in contravention of s. 3 and Schedule 1 of the Queensland Health HR Policy E10 – Discipline.

6. The decision in relation to Allegation 2 was based upon a positive duty that did not exist.

7. There was insufficient relevant evidence to satisfy the decision-maker that Allegations 1, 2, 3 and 7 were substantiated on the balance of probabilities.

8. The decision-maker had regard to irrelevant and unreliable evidence.

9. It was not reasonably open to the decision-maker to be satisfied that the Appellant had contravened section 91(1)(h) of the Public Sector Act.

10. It was not reasonably open to the decision-maker to be satisfied that, had the Appellant still been employed, disciplinary action of a reduction in her classification level would have been fair and reasonable and therefore the decision to issue a disciplinary declaration was unauthorised.

11. The decision to impose a disciplinary declaration 6 months after receiving the Appellant's most recent submissions and without first issuing a second show cause notice on proposed penalty was made in contravention of (a) ss 9.4, 9.5 and 9.6 of Directive 5/23; (b) ss. 3.1 and 3.2 of QH HR Policy E10; and (c) the rules of natural justice.

Outcomes sought

  1. [24]
    The Appellant seeks that the decisions relevant to this appeal be dismissed.
  1. [25]
    The Respondent submits that the disciplinary decision be confirmed on the basis that it was fair and reasonable, having regard to the evidence available and the procedurally fair way in which the process was undertaken.  In submissions in reply, the Respondent submits that if the combined show cause disciplinary process was unfair and unreasonable, the appropriate course would be to remit the matter to the decision-maker to issue a fresh notice to show cause on disciplinary action.

Is the Appellant entitled to appeal?

  1. [26]
    Section 131 of the Public Sector Act 2022 (Qld) ('PS Act') outlines the categories of decisions against which an appeal may be made. Section 131(1)(c) of the PS Act provides that an appeal may be made against 'a disciplinary decision'. Section 133 of the PS Act provides a public sector employee or former public sector employee aggrieved by the decision is entitled to appeal under a Directive.
  1. [27]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
  1. [28]
    I am satisfied that the decisions may be appealed against, that Ms Gurdler is entitled to appeal, and that the appeal was lodged within the required time.

Appeal principles

  1. [29]
    Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.' The words "fair" and "reasonable" have their ordinary meanings.[9] The Commission is not confined, in relation to "reasonableness," to legal reasonableness.[10]
  1. [30]
    Appeals under ch 11 pt 6 div 4 of the IR Act are not by way of re-hearing.[11] Findings made in the decision which are reasonably open to the decision-maker are not expected to be disturbed on appeal.[12]

What decisions can the Commission make?

  1. [31]
    Section 562C of the IR Act provides:

562C Public service appeals – decision on appeal

…

  1. In deciding a public service appeal, the commission may—

(a) confirm the decision appealed against; or

…

(c) for another appeal — set the decision aside, and substitute another decision or return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Relevant legislative framework and other instruments

The Public Sector Act

  1. [32]
    The capacity for the Department to commence a disciplinary process against a former employee is contained within s 95 of the Public Sector Act 2022 (Qld) ('PS Act'):

95Disciplinary declaration if employment as a public sector employee ends

(1)This section applies if—

(a)a person is employed in a public sector entity (the former entity); and

(b)a disciplinary ground arises in relation to the person; and

(c)after the disciplinary ground arises the person's employment as a public sector employee ends for any reason.

…

(3)The former public sector employee's previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public sector employee in relation to the disciplinary ground.

(4)The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment.

(5)However, subsection (4) does not stop disciplinary action being taken following an appeal or review.

(6)Subsection (4) does not affect—

(a)an investigation of a suspected criminal offence; or

(b)an investigation of a matter for the purpose of notifying the Crime and Corruption Commission of suspected corrupt conduct under the Crime and Corruption Act 2001.

(7)In disciplining the former public sector employee, the former public sector employee's previous chief executive may make a disciplinary declaration and may not take any other disciplinary action.

(8)The former public sector employee's previous chief executive may only make a disciplinary declaration if the disciplinary action that would have been taken against the employee if the employee's employment had not ended would have been—

(a)termination of employment; or

(b)reduction of classification level.

…

(10)In this section—

disciplinary declaration means a declaration of—

(a)the disciplinary finding against the former public sector employee; and

(b)the disciplinary action that would have been taken against the former public sector employee if the employee's employment had not ended.

…

  1. [33]
    The Act also sets out broadly the procedure in s 98:

98 Procedure for disciplinary action

In disciplining a public sector employee or former public sector employee under this Act, a chief executive of a public sector entity must comply with this Act and any relevant directive.

  1. [34]
    With regards to the available grounds for discipline, s 91 of the PS Act provides:

91Grounds for discipline

(1)a public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

(h)contravened, without excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

(5)In this section—

…

relevant standard of conduct—

(a)for a public sector employee, means —

(i)a standard of conduct applying to the employee under an approved code under the Public Sector Ethics Act 1994; or

(ii)a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

The Code of Conduct for the Queensland Public Service

  1. [35]
    The Code of Conduct for the Queensland Public Service[13] relevantly provides:

Standards of conduct

1.1 Commit to the highest ethical standards

As public service employees we are required to ensure that our conduct meets the highest ethical standards when we are fulfilling our responsibilities.

We will:

a. ensure any advice that we provide is objective, independent, apolitical and impartial

b. ensure our decision making is ethical

c. engage with the community in a manner that is consultative, respectful and fair, and

d. meet our obligations to report suspected wrongdoing, including conduct not consistent with this Code.

1.2 Managing conflicts of interest

A conflict of interest involves a conflict between our duty, as public service employees, to serve the public interest and our personal interests. The conflict may arise from a range of factors including our personal relationships, our employment outside the public service, our membership of special interest groups, or our ownership of shares, companies, or property.

As public service employees we may also experience conflicts of interest between our public service ethics and our professional codes of ethics (for example as health care professionals or as lawyers), or with our personal beliefs or opinions.

Having a conflict of interest is not unusual and it is not wrongdoing in itself. However failing to disclose and manage the conflict appropriately is likely to be wrongdoing.

As public service employees we are committed to demonstrating our impartiality and integrity in fulfilling our responsibilities and as such we will:

a. always disclose a personal interest that could, now or in the future, be seen as influencing the performance of our duties. This will be done in accordance with our agency policies and procedures

b. actively participate with our agency in developing and implementing resolution strategies for any conflict of interest, and

c. ensure that any conflict of interest is resolved in the public interest.

The Discipline Directive (05/23) and the Queensland Health Discipline Policy (E10)

  1. [36]
    Clauses 7.1 and 7.2 of the Discipline Directive[14] relevantly provides:

7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

7.2 Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

a.the seriousness of the employee's personal conduct and/or work performance, and

b.whether the matter should be resolved through management action instead, and

c.whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and

d. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and

…

g. whether further information is required to make a decision to commence a disciplinary process, and

h. for a breach of a relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

  1. [37]
    Discipline Policy E10 provides further information as to where a contravention of a relevant standard of conduct is likely to be sufficiently serious to warrant disciplinary action:

6 Discipline for conduct

…

The circumstances in which a contravention of a relevant standard of conduct … is likely to be considered sufficiently serious to warrant disciplinary action are where the delegate forms a view that management action is not likely to address and/or resolve the work performance matter. In forming their view, the delegate must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the delegate must consider:

…

• whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration)

…

  1. [38]
    Clause 9.3 of the Discipline Directive relevantly provides:[15]

9.3Show cause process for disciplinary finding

a.the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)

b.written details of each allegation in clause 9.3(a) must include:

i.the allegation

ii.the particulars of the facts considered by the chief executive for the allegation

iii.the disciplinary ground under section 91 of the Act that applies to the allegation

…

d.a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence

…

  1. [39]
    Clause 9.4 of the Discipline Directive relevantly provides:

9.4 Decision on grounds (disciplinary finding)

a.the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities

b.the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding

c.for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established

d.the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals

e.if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation

…

  1. [40]
    HR Policy E10 further provides with regards to the decision on grounds that for each finding the delegate must state what ground/s of the PS Act the employee's performance or conduct has breached, with only one ground to be proffered per allegation.[16]
  1. [41]
    Clause 9.5 of the Discipline Directive relevantly provides:

9.5 Show cause process for proposed disciplinary action

…

d. in proposing appropriate and proportionate disciplinary action, the chief executive should consider:

i.the seriousness of the disciplinary finding

ii. the employee's classification level and/or expected level of awareness about their performance or conduct obligations

iii.whether extenuating or mitigating circumstances applied to the employee's actions

iv.the employee's overall work record including previous management interventions and/or disciplinary proceedings

v.the employee's explanation (if any)

vi.the degree of risk to the health and safety of employees, customers and members of the public

vii.the impact on the employee's ability to perform the duties of their position

viii.the employee's potential for modified behaviour in the work unit or elsewhere

…

xi.the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding

…

f.the chief executive must provide the employee with a minimum of seven 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.

g. 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. [42]
    Clause 9.6 of the Discipline Directive relevantly provides:

9.6 Decision on a disciplinary action:

a. 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

b. the chief executive must inform the employee of the decision in writing, including:

i.the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice

ii.information that the employee may appeal the decision on disciplinary action (except for a termination decision)

…

  1. [43]
    Clauses 9.7 and 9.8 of the Discipline Directive relevantly provide:

9.7 The chief executive may combine the procedural elements of a show cause process for disciplinary finding and a show cause process for proposed disciplinary action where:

a.the particulars of the evidence being relied on to determine discipline liability are not likely to be disputed (for example, where the employee has been found guilty, or pleaded guilty, to a criminal offence in relation to the conduct the subject of the discipline process, regardless of whether a conviction is recorded in relation to that offence), and

b.the chief executive reasonably believes the progression or finalisation of the matter is in the best interests of the employee

9.8 Action taken against a former public sector employee under section 95 and 96 of the Act must comply with the requirements of sections 98 of the Act.

  1. [44]
    Clause 4.3 of Attachment One to HR Policy E10 further provides in relation to combining processes:

The delegate may combine the disciplinary finding (refer to section 4.2 of this Attachment) and the show cause notice on disciplinary action within the same written correspondence.

  1. [45]
    The Policy also provides guidance on issues of bias and natural justice at cl 9:

9 Natural justice

Natural justice (also known as procedural fairness) is the right for a person to be made aware of and respond to information which will be used in the course of a decision that may adversely affect the person. The principles of natural justice must be applied when undertaking the disciplinary process. Natural justice must be afforded before making a decision on an allegation and any disciplinary action.

An employee subject to a discipline process is to be sufficiently informed about the allegations and evidence against them, as well as any proposed action or disciplinary decision, so that the employee may respond to the case against them. The employee is to be provided a reasonable opportunity to be heard, i.e. to make a full and detailed response regarding the information (the hearing rule).

The decision maker needs to ensure they are unbiased and any conflicts of interest (actual, possible or perceived) in the matter and/or its outcome are declared, monitored and appropriately managed (the rule against bias).

The Workplace Investigations Directive

  1. [46]
    Clause 8.3 of the Public Sector Commission Directive 17/20: Workplace Investigations ('the Workplace Investigations Directive')[17] in effect at the time of the decision relevantly provides:[18]

8. Natural justice in investigations

8.1  Investigations must be conducted in a fair and balanced manner with no predetermined views.

8.2  An investigator must:

(a)Act fairly and without bias, ensuring they do not make findings for which they have a conflict of interest

(b)inform a subject employee of the substance of any allegations against them, or grounds for adverse comment about them

(c)give participants in an investigation a reasonable opportunity to put their case, whether in writing or at an interview, or otherwise hear all relevant parties and consider submissions from them

(d)make reasonable enquiries before finalising an investigation

(e) conduct the investigation in a timely way.

8.3 Natural justice does not require that the subject employee be given access to every document seen by, or information given to an investigator. The subject employee must be made aware of what they are accused of and by whom, with sufficient particularity to be able to answer the allegations and be given the opportunity to answer the allegations.

Approach to the appeal

  1. [47]
    This appeal requires me to consider:

• Whether it was fair and reasonable for the decision-maker to determine four of the eight allegations were substantiated, giving rise to a ground/s for discipline; and

• Whether it was fair and reasonable for the decision-maker to decide to issue a disciplinary declaration.

  1. [48]
    This involves consideration of the decisions arrived at having regard to the information available to the decision-maker, as well as the process followed.
  1. [49]
    In deciding this appeal, I have reviewed all the filed material and matters discussed at the mention, including the respective submissions of the parties.
  1. [50]
    Rather than summarising all submissions, I will incorporate those submissions as relevant to my consideration of the key questions to be decided in this appeal.

Question 1 – Was the Part 9 investigation invalid and is it relevant to the decisions subject to appeal?

  1. [51]
    The relevant appeal ground for this question is:

 1. The decision (and the preceding disciplinary process) was made in reliance on an investigation conducted under Part 9 of the Hospital and Health Boards Act 2011 that was invalid because of a denial of natural justice in the course of the investigation. Vega Vega [sic.]

  1. [52]
    In the appeal notice and submissions,[19] the Appellant contends that the decisions and the preceding investigation and disciplinary process are invalid. These submissions, first made by the Appellant's lawyers during the disciplinary process, and then the Appellant in this appeal, are based on an argument that the investigation under Pt 9 of the HHB Act denied the Appellant natural justice by failing to provide evidentiary material or the draft evidentiary report before it was delivered to the decision-maker.[20] As stated in the Appellant's submissions:

… Vega Vega is binding upon the Commission. This is not an application for judicial review. However, if the Commission is satisfied that the investigation report was legally invalid and therefore the commencement of the disciplinary process that resulted in the Decision was itself legally unauthorised and invalid, the Commission must be satisfied that the decision appealed against is not fair or reasonable because it is a purported statutory decision that has no legal authorisation.

  1. [53]
    The Respondent rejects the assertion that Ms Gurdler was denied natural justice or procedural fairness in the investigation, contending there is no statutory obligation under the HHB Act requiring an investigator to provide all evidentiary material to a subject officer, nor to provide a draft report for comment. Further they do not agree with the characterisation of Vega Vega, stating it was specific to its facts and does not set out mandatory requirements that apply in every case.
  1. [54]
    The Respondent further submits[21] that the investigation report was not considered by the decision-maker and the redacted summary of relevant alleged conduct attached to the first show cause notice would be disregarded. The material that was relied upon by the decision-maker was provided to the Appellant.  Finally, they contend that regardless of any views in relation to the validity of the investigation, the investigation process is not a disciplinary process and does not form part of the disciplinary process relevant to this appeal.

Consideration

  1. [55]
    The assertion that Vega Vega is binding on the Commission is misconceived.
  1. [56]
    The Appellant alleges a denial of natural justice in the investigation and refers to the show cause responses prepared by her lawyers. They argued that Vega Vega makes it clear that natural justice must be afforded to the subject of a Part 9 Investigation. That seems uncontroversial.
  1. [57]
    It is also uncontroversial that the decision of Lyons J in Vega Vega provides a practical demonstration of how the rules of procedural fairness must be applied when an investigator is conducting a complex disciplinary investigation, and is then producing a significant disciplinary report, for the final decision-maker to decide whether specific disciplinary findings and action should be taken.[22] The concern of procedural fairness is to avoid practical injustices such that a person has not lost an opportunity to put any information or argument to a decision-maker or has otherwise suffered any detriment.[23]
  1. [58]
    It does not follow however, as submitted by the Appellant, that because of Vega Vega's finding of invalidity, the Commission is bound to (or even in a position to) make a similar finding of invalidity. Vega Vega itself sets out that flexible adaptation in the circumstances of every case is required so that fair procedures are adopted.[24]
  1. [59]
    It also does not follow that because the Appellant was not provided copies of all relevant evidence relied on by the investigator in their report (as distinct from the decision-maker), that natural justice has not been afforded and the investigation is in any way automatically invalidated. 
  1. [60]
    The issue with the Appellant's submission is two-fold. Firstly, natural justice does not, as a rule, require Queensland Health to provide the Appellant with a complete investigation report with complete copies of witness interviews.[25] What is required is a person be made aware of what they are accused of with sufficient particularity to be able to respond to the allegations and to be given the opportunity to respond to the allegations.[26] In Vega Vega, the interviews which were not disclosed had significance to the allegations.[27] In Ms Gurdler's case, the allegations are more straightforward.
  1. [61]
    Secondly, the Part 9 investigation is not a 'disciplinary process' reviewable under the PS Act.[28] The references the Appellant's show cause responses makes to s 199 of the HHB Act giving rise to a greater obligation of disclosure than "ordinary workplace investigations" are not relevant.
  1. [62]
    The crux of the problem with the Appellant's Vega Vega submission is apparent when considering the following extract of the Appellant's show cause response:

It is clear that, having considered the investigation report, you purported to initiate a disciplinary process against our client pursuant to s. 95(1) of the PS Act in reliance upon that report.

However, as the Investigation Report is legally invalid, your purported decision to initiate a disciplinary process against our client pursuant to s. 95(1) of the PS Act is fatally infected by that invalidity and is, itself, invalid.

  1. [63]
    This foundational proposition is rejected. While the Appellant alleges the investigation report is invalid, no application for judicial review was made. The report remains functionally valid, until and unless it is found not to be. Even if the investigation report was found to be invalid, it does not then follow that there is any 'fatal infection' of the disciplinary finding and declaration decisions. Section 95(1) of the PS Act only requires that a discipline ground arises. Whether the ground has arisen is independent of the investigation report.
  1. [64]
    Further, despite the assurance that the Appellant is not seeking judicial review, the invitation made to the Commission to determine the investigation was legally invalid seems to be just that. Section 3 of the Judicial Review Act 1991 (Qld) ('JR Act') makes it clear that a 'court' for the purposes of the JR Act means the Supreme Court.
  1. [65]
    Sections 562B and 562C of the IR Act clearly set out the decisions the Commission may make in Public Sector Appeals. The key consideration for the Commission is to decide whether the decision appealed against was fair and reasonable. While elements of an investigation or show cause process before a decision-maker may in certain circumstances render a decision unfair or unreasonable, it is not the role of the Commission to determine whether the investigation process was legally invalid. This would be beyond the Commission's jurisdiction.
  1. [66]
    This is further supported by cl 4.4 of the Workplace Investigations Directive which was in effect at the time of the investigation, [29] and provides:

4.4  A workplace investigation, whether internal or external, is not a disciplinary step. It is a separate process to any formal disciplinary process as provided for under chapter 6 of the PS Act.

  1. [67]
    A finding that the investigation report was legally invalid is not one I can make, and even if I could make it, it has no direct relevance to the decisions subject to this appeal.
  1. [68]
    The decision-maker made clear in the second show cause notice that he did not rely on matters set out in the impugned report, and would not rely on the summary attached to the first show cause notice. Instead, he would rely on the particulars articulated relating to each allegation, and evidence provided; including the replacement policy documents from the relevant time periods. The Appellant was then afforded the further opportunity to show cause, which would also appropriately form part of the decision-making process.
  1. [69]
    There was no practical injustice or lost opportunity[30] suffered by the Appellant as a result of not being provided the report. The allegations subject of the discipline process were set out, particulars were provided, the relevant discipline grounds allegedly contravened were specified and the Appellant had sufficient opportunity to respond. The Appellant did respond through her lawyers. The decision to focus on technical objections rather that the substance of the allegations was a choice of the Appellant and does not reflect on the disciplinary process.
  1. [70]
    For the reasons outlined above, I make no finding in relation to the validity of the investigation report, and consider this question is not relevant to the decisions subject to this appeal and the jurisdiction to be exercised. The Appellant's first appeal ground is dismissed.

Question 2 – Was the decision-maker infected by a reasonable apprehension of bias?

  1. [71]
    The relevant appeal ground for this question is:

 2. The decision is infected by a reasonable apprehension of bias on the part of the decision-maker.

  1. [72]
    In submissions, the Appellant refers to statements made in the second show cause response to argue that having purportedly read and relied upon the investigation report, the decision-maker could not un-know and un-read that material – despite assurances that it would not be relied upon when making the decision. The Appellant provides further submissions that the Commission should be satisfied there is at least a reasonable apprehension of bias given the decision-maker's 'conduct as a whole in making the decision.' [31]
  1. [73]
    The decision-maker responds to this issue in the decision letter, stating:

I am satisfied that I am able to put the information contained in the summary of report findings (which I withdrew my reliance on in my letter of 6 September 2023) out of my mind for the purpose of my continuing involvement in this disciplinary process concerning Ms Gurdler…

  1. [74]
    The Respondent further submits that the Appellant has not identified any basis for alleging a reasonable apprehension of bias, and argues the decision is not infected as there is no basis for the allegation to be made.
  1. [75]
    The Respondent also submits in their reply that the Disciplinary Directive and HR Policy E10 make clear the disciplinary process does not require or include any investigation. The discipline process can be commenced once a Chief Executive is 'reasonably satisfied' a ground for discipline exists. The investigation was merely one way for the Health Service to gather facts about alleged conduct.  The disciplinary process commences when allegations are put.[32] The second show cause notice was issued in reliance on material attached to that notice and the first show cause notice, excluding the investigation report summary of findings. The Respondent also confirms that the decision-maker never considered the full report.[33]

Consideration

  1. [76]
    The allegation of apprehended bias first arises in the second show cause response due to action taken by the decision-maker to address the Appellant's concerns about the investigation process, and its relationship to the disciplinary process in the first show cause response. The action was to expressly withdraw any reliance on the redacted summary document supplied to the Appellant in the first show cause notice. 
  1. [77]
    For the reasons provided in relation to the Appellant's first appeal ground, I do not accept the investigation forms part of the disciplinary process relevant to this appeal. The allegations to be answered by the Appellant that would give rise to disciplinary grounds were put, and the opportunity to respond afforded. Indeed, in direct response to issues raised by the Appellant's representatives, matters were clarified, documents replaced or withdrawn, and additional time afforded to enable the Appellant to be heard in relation to the revised material and grounds. The fact that the decision-maker had knowledge of the investigation and determined that a disciplinary process should be commenced by putting allegations does not of itself establish a reasonable apprehension of bias.
  1. [78]
    In Attorney-General for the State of Queensland v Wood,[34] Davis J relevantly stated:

Legal principles

[13] It is well-established that the test for determination of applications for disqualification and apprehended bias is an objective one:

"[whether] a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question the judge is required to decide."[35]

[13] The application of the test is a two-part process. Firstly, "it requires the identification of what it is said might lead a judge … to decide a case other than on its legal and factual merits”. Secondly, there must be a logical connection between that matter and the feared departure from the judge deciding the case on its merits.

  1. [79]
    The rule against bias, actual or apprehended, is directed to prejudgment incapable of being altered by evidence or argument. It is not directed to predisposition capable of being swayed by evidence or argument. In Minister for Immigration and Multicultural Affairs v Jia Legeng,[36] Gleeson CJ and Gummow J said:

"Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. …

Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion." [37]

  1. [80]
    The factors identified by the Appellant that might lead to the decision-maker deciding the case other than on its legal and factual merit are stated in the show cause process to be his knowledge of the investigation report and its findings; and in these proceedings to be his conduct as a whole in making the decision.
  1. [81]
    The second part of the test is to establish a logical connection between these factors and the feared departure from deciding on the merits. As outlined in the first show cause notice and the first show cause response, the investigation was sparked by allegations in relation to Ms Gurdler's conduct being notified to the Health Service by the Crime and Corruption Commission (CCC). These allegations were externally investigated, and the process included an interview with Ms Gurdler in relation to those allegations. The investigator formed a view that the allegations in relation to Ms Gurdler were capable of substantiation on the balance of probabilities. The decision-maker commenced a disciplinary process pursuant to the relevant provisions of the PS Act as Ms Gurdler 'may be liable for disciplinary findings.'
  1. [82]
    A decision-maker should not be precluded from making a decision simply because they have had to form a state of satisfaction that there was a case to answer. This is a requirement for the disciplinary process to commence. This is not the same as a positive finding the conduct has occurred. It is not evidence of prejudgement. If this were the case, every decision-maker assessing available information to consider whether allegations may give rise to discipline, as they must, would be precluded from continuing as the decision-maker. I reiterate that the question is not whether the decision-maker's mind was blank, but whether their mind was open to persuasion.[38]
  1. [83]
    The available evidence relevant to the allegations, the particulars, and the discipline grounds enlivened should the conduct be substantiated, were laid out for the Appellant through the first and second show cause notices (following feedback from the Appellant's representatives in response to the first show cause notice). While the adequacy of that evidence and information is contested in this appeal, the Appellant was afforded the opportunity to respond to the case laid out. Those responses and any evidence supporting the argument that the allegations should not be substantiated, would then have been available to the decision-maker to consider when the decision was being made. This was the Appellant's opportunity to persuade. The fact that she didn't take that opportunity did not mean the decision-maker was incapable of persuasion.
  1. [84]
    The second factor relied upon in the current proceedings is in relation to the decision‑maker's 'conduct as a whole,' which is not further explained in submissions. There is clear evidence in the disciplinary process that the decision-maker has been persuaded by arguments made by the Appellant's representatives, leading to a second show cause notice and a finding that four of the eight allegations were not capable of substantiation on the balance of probabilities. While there are defects in the process particularly relating to the disciplinary action decision, that is not evidence of 'conduct' supporting apprehended bias – it is proof the process was imperfect and in a significant enough way to impact the sustainability of the resultant disciplinary action decision on appeal.
  1. [85]
    For the reasons I have explained above, I find there was no reasonable apprehension of bias. The Appellant's second appeal ground is dismissed.

Question 3 – Was there sufficient evidence to substantiate the allegations on the balance of probabilities?

  1. [86]
    The relevant appeal grounds for this question are:[39]

7.There was insufficient relevant evidence to satisfy the decision-maker that Allegations 1, 2, 3 and 7 were substantiated on the balance of probabilities.

8.The decision-maker had regard to irrelevant and unreliable evidence.

3.The decision-maker relied upon a QH guideline that was not in operation and therefore had no application to Allegations 1 and 2 and, in any event, did not establish the positive duty alleged against the Appellant in Allegation 2.

6.The decision in relation to Allegation 2 was based upon a positive duty that did not exist.

  1. [87]
    Four of the eight allegations were found to be substantiated, giving rise to the finding that Ms Gurdler had contravened, without reasonable excuse, a relevant standard of conduct under the Code of Conduct; being cl 1.2 (Managing conflicts of interest) for allegations one, three and seven, and cl 1.1 (Commit to the highest ethical standards) for allegation two.
  1. [88]
    The Appellant states she repeats and relies upon the various submissions set out in the Appellant's second show cause response. The Appellant further submits in relation to these responses:

… The Appellant identified all of the alleged factual particulars for which no evidence was provided to her by the Respondent. Either the evidence establishing the identified alleged factual particulars was not provided to the Appellant or there was no evidence to establish them. On either basis, the Decision was not fair or reasonable.

…

In addition, the perfunctory reasons for the Decision do not identify what evidential basis the Respondent had for being satisfied that each of Allegations 1, 2, 3 and 7, including the particulars of those allegations specified in the First NTSC, had been established on the balance of probabilities…

  1. [89]
    The Respondent denies that the decision was based on insufficient, irrelevant, or unreliable evidence. The substantiated allegations related to failures to declare or report conflicts of interest, and it should be uncontroversial that those conflicts existed. They further submit that none of the Appellant's responses say that she appropriately declared, managed, or reported those conflicts. They also argue that it is not possible to provide documentary evidence that something was not done, as in the case of failure to declare or report conflicts.
  1. [90]
    The Respondent further rejects the assertion that there was no 'positive duty' to report a conflict of interest held by another employee, stating the obligation is clearly set out in HR Policy E9[40] and cl 3.5 of the COI Guideline.[41] The second show cause notice listed these references so that the Appellant could provide a response to the decision-maker by reference to documents applicable in the time period relevant to the alleged conduct. They further contend the obligation was ongoing.

Consideration

  1. [91]
    The allegations were structured such that there was a short paragraph describing the base allegation, followed by alphabetically itemised particulars setting out the relevant facts and attaching documentary evidence where available. Given the significance of this issue to determination of the appeal, I have set out the full text of the substantiated allegations and particulars from the show cause notice as follows:
  1. [92]
    Allegation one:

Allegation One

It is alleged that during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the Tony Albert Boomerang Art Sculpture Installation project between 2016 and 2018 (Boomerangs Project), you failed to fully and transparently declare a Conflict of Interest regarding your relationship with Mr Mark Gurdler, Director ICM Maintenance Pty Ltd and other ICM employees.

The particulars of Allegation one are as follows:

a) Mr Gurdler of ICM is your father.

b) CHQHHS entered into a Facilities Management Services Contract with Compass Group Healthcare Hospitality Services Pty Ltd (Medirest) on 31 March 2014. 

c) Honeywell Limited was engaged by Medirest as the Hard FM Services Subcontractor (Building Engineering Maintenance Services) at the commencement of the FM Contract.

d) In 2015, ICM Maintenance was subcontracted to Honeywell under the Facilities Management Contract, then operating at CHQHHS.

e) You worked for ICM Maintenance while they were subcontracted by Honeywell under the Facilities Management contract, then operating at CHQHHS.

f) On 12 December 2016, you commenced employment with CHQHHS in the role of Facilities Support Officer (Attachment 7).

g) Ms Melinda Fitzgerald, Manager Property and Leasing at CHQHHS was the panel chair for your recruitment process mentioned above.

h) At all times relevant to this allegation, you reported directly to Ms Fitzgerald.

i) Ms Fitzgerald was the panel chair for the procurement process relating to the Boomerangs installation project.

j) On 27 January 2017, ICM was formally awarded the Tony Albert Boomerang Art Sculpture Installation project at $88,963 (ex GST) to complete the installation.

k) In October 2017, Mr Gurdler sent an email to Ms Fitzgerald with the gift of accommodation for dates in December 2017. You were aware of and had contributed towards this gift.

l) The gifted accommodation at 43 Longboard Circuit, Salt Village Kingscliff NSW 2487 for a 10-day period of stay between 26 December 2017 to 5 January 2018 held an approximate value of $14,000 (Attachment 8).

m) You and Mr Gurdler attended Ms Fitzgerald [sic.] wedding in December 2017.

n) On 7 March 2018, Ms Fitzgerald communicated to all parties involved with the Boomerangs Project that you would be the lead contact between CHQHHS and ICM (Attachment 9).

o) Following several variations, as of 2 August 2018, the cost of the installation was $212,078.60 (incl. GST).

p) CHQHHS is not in receipt a conflict-of-interest declaration by you in relation to the Boomerangs Project in which you were significantly involved and ICM (your father's company) was the contractor awarded the installation works.

  1. [93]
    Allegation two:

Allegation two

It is alleged that during the procurement and subsequent contract management processes conducted by CHQHHS between 2016 and 2018 in relation to the Boomerangs Project, you failed to report a conflict of interest held by Ms Melinda Fitzgerald, Property and Leasing Manager at CHQHHS, regarding the nature of her relationship with Mr Gurdler of ICM and other ICM employees.

The particulars of Allegation two are as follows:

a) At all times relevant to this allegation, you reported directly to Ms Fitzgerald.

b) Ms Fitzgerald was the panel chair for the procurement process relating to the Boomerangs project.

c) You had contributed towards the gift of accommodation by ICM to Ms Fitzgerald and also attended Ms Fitzgerald's wedding.

d) As referenced above, the accommodation at 43 Longboard Circuit, Salt Village Kingscliff NSW 2487 for a 10-day period of stay between 26 December 2017 to 5 January 2018 gifted to Ms Fitzgerald as a wedding present held an approximate value of $14,000.

e) CHQHHS has no records of a report made by you in relation to Ms Fitzgerald's accepting of the gift and or [sic.] her involvement in the project after receiving this gift.

  1. [94]
    Allegation three:

Allegation three

It is alleged that during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the Alderley Village Refurbishment works in 20189, you failed to declare a Conflict of Interest fully and transparently regarding your relationship with Mr Gurdler and other ICM employees.

The particulars of Allegation three are as follows:

a) At all times relevant to this allegation, you reported directly to Ms Fitzgerald.

b) In December 2017, you and Mr Gurdler (your father) had contributed towards a substantial gift of accommodation to Ms Fitzgerald for her wedding to Mr James Venables which you also both attended.

c) On 9 May 2018 CHQHHS issued a Request for Quote (RFQ) CHQHHS-024-2018 in relation to refurbishment works required for the Child Health Facility located at Alderley Village.

d) The RFQ was released to three suppliers in a closed tender procurement process, including ICM Maintenance.

e) On 10 May 2018, you completed an Acknowledgement of Obligation declaration form (Attachment 10) in which you stated, in part; "I note that I have a family relationship (father) within ICM Construction and Maintenance."

f) Section 2.1 of the Acknowledgement of Obligation declaration states; I warrant that before signing this declaration, I have disclosed on this document all the past, current and anticipated interests which may conflict with my impartial involvement in the evaluation process. No further information was provided other than that mentioned above.

g) Ms Fitzgerald signed your Acknowledgement of Obligation declaration as a witness on 10 May 2018.

h) ICM subcontract electrical work to N&P electrical which employs Mr Venables who is Ms Fitzgerald's husband.

i) N&P Electrical were the subcontractors mentioned by ICM in their Tender Form for Minor Works for Alderley Village dated 21 May 2018 (Attachment 11).

j) As a panel member for the Alderley Village Refurbishment procurement process, you submitted an evaluation of the received tenders on 29 May 2018 (Attachment 12).

k) ICM were the successful offeror at $59,818 (ex GST) to complete the Alderley Village Refurbishment works

l) CHQHHS is not in receipt of a full conflict-of-interest declaration by you in relation to the Alderley Village refurbishment works in which you were significantly involved and ICM (your father's company) was the contractor awarded the tender with N&P Electrical as the sub-contractors.

m) CHQHHS has no records of assessments, decisions made and or [sic.] actions taken in relation to your declaration of 10 May 2018 as evidence that the conflicts were appropriately managed in line with the QH Conflicts of Interest Guideline (Attachment 13).

  1. [95]
    Allegation seven:

Allegation seven

It is alleged that during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the Deception Bay community Facility Design and Construct Project in 2019, you failed to declare a Conflict of Interest fully and transparently regarding your relationship with Mr Gurdler and other ICM employees.

The particulars of Allegation seven are as follows:

a) At all times relevant to this allegation, you reported directly to Ms Fitzgerald.

b) From 16 July 2019, you were involved in the procurement process including correspondence relating to the RFQ1 and Evaluation Plan for the Deception Bay project (Attachment 17).

c) On 25 July 2019, you completed an Acknowledgement of Obligation declaration form (Attachment 18) in which you stated, in part; "I note that I have a family and personal relationship with possible tender invitees within ICM."

d) On 29 July 2019 CHQHHS issued a RFQ CHQHHS 191-2019 for the Deception Bay Community Facility Design and Construct Project (Deception Bay)

e) In a closed tender procurement process, the RFQ was released to four suppliers including ICM Project Solutions Ltd, with Mr Gurdler as the contact.

f) As a panel member for [the] Deception Bay procurement process, you signed the evaluation of the received tenders on 26 August 2019 (Attachment 19) in which the comments section of the Panel Certification states; I declare that I have evaluated all offers received in accordance with the approved evaluation strategy outlined in the Evaluation Plan. I have also completed an Obligation of Acknowledgement form and have no declared conflicts (my bolding). The recommended offer maximises value for money and delivers the department's requirements.

g) Your signed panel certification on 26 August 2019 is in direct conflict with the Acknowledgement of Obligation declaration form signed by you dated 25 July 2019.

h) ICM were the successful tenderer for the Deception Bay project, at $162,669.14 (ex GST) to complete the works.

i) CHQHHS has no records of assessments, decisions and or actions taken in relation to your partial declaration of conflict dated 25 July 2019, as evidence that the conflicts were appropriately managed in line with the QH Conflicts of Interest Guideline.

  1. [96]
    I consider the base allegations have been clearly set out with detailed particulars sufficient to enable the Appellant to provide a response. The allegations relate to three separate named projects and encompass procurement activities and the subsequent contract management processes. Three of the allegations relate to a failure to declare or adequately declare and manage the conflict with ICM, and in one case, its sub-contractor N&P Electrical. The fourth allegation relates to a failure to report the conflict of her direct supervisor Ms Fitzgerald.
  1. [97]
    A significant concern I have with the Appellant's submissions within these proceedings, and within the show cause process under scrutiny is that they provide neither confirmation, denial, justification or mitigation for most of the facts in issue so as to explain why the Appellant objects to the facts as they have been particularised.
  1. [98]
    It is in the second show cause response that the Appellant's representatives state that evidence "to substantiate… the following particularised facts" was not provided for nearly every particular of every allegation, such that the only particulars not impugned were:[42]

• Allegation one: particulars (a) and (n)

• Allegation two: nil

• Allegation three: particulars (e), (f), and (g)

• Allegation seven: particulars (b), (c), (f), and (g)

  1. [99]
    It is relevant to my decision whether the evidence relied upon by the decision-maker supports the allegations to the required standard. It is equally relevant whether the evidence was disclosed to the Appellant during the show cause process. Both factors may render a decision unfair and unreasonable.
  1. [100]
    However, I must also decide, notwithstanding any alleged deficiencies, whether the Appellant was able to respond to the allegations, and what the Appellant has said regarding their substance. There is a difference between sufficient evidence for the decision-maker to consider, and sufficient particulars being provided to the Appellant to enable a response. The response forms part of the evidence to be considered in making the decision.[43]
  1. [101]
    While the employer is not expected to conduct enquiries with the forensic thoroughness or skills of police or lawyers,[44] the alleged facts must be sufficiently particularised and any connection between the alleged breach of policy or the Code of Conduct must also be particularised to allow a fair opportunity to respond.[45]
  1. [102]
    In making the apparent non-admissions, the Appellant states in her show cause response which she relies upon:[46]

You cannot simply assert particularised facts without providing our client with the evidence that you rely upon to establish those facts.

It is not for our client to cast her mind back up to seven years and try to remember whether the facts you particularise are true and correct or not, particularly in circumstances where she is no longer an employee of the CHQHHS and therefore has no access to relevant documentation.

  1. [103]
    I must now determine what effect the Appellant's non-admissions should have on the evidence and allegations. While the Commission is not strictly bound by the rules of evidence,[47] it may have regard to those rules,[48] and by extension the rules and principles of civil procedure. I consider this exercise necessary in this case, where the show cause responses the Appellant relies upon were prepared by lawyers and make technical arguments scrutinising each particular in a manner akin to pleadings. In doing so, I have considered that the show cause process was not a court or commission proceeding, however, reiterate that the Appellant has referred to and endorsed the show cause responses as part of her submissions.
  1. [104]
    Rule 166 of the Uniform Civil Procedure Rules 1999 (Qld) provides that an allegation of fact made by a party in a pleading is taken to be admitted by an opposite party unless the allegation is denied or stated to be not admitted. Statements of denial or non-admission must be qualified by a direct explanation for the party's belief that an allegation is untrue or cannot be admitted. Rule 167 further contemplates costs considerations where a court considers denials and non-admissions unreasonable. Just as it has been said that the rules of evidence are founded in experience, logic, and above all, common sense,[49] aspects of the rules of civil procedure are similarly grounded.
  1. [105]
    I agree with the Appellant that as a general principle, particulars need to be supported by evidence. However, as contemplated by the UCPR, and as a matter of common sense, there will be some particulars which are so trivial or that could not possibly be outside the Appellant's knowledge, recollection, or reasonable acceptance, such that the Appellant cannot in good faith contest them. To do so would serve no purpose other than to possibly delay and frustrate the show cause process – or to underpin an argument that the decision-maker could not reach a state of reasonable satisfaction that the conduct had occurred.
  1. [106]
    I have determined that many of the particulars outlined against the substantiated allegations would fall into the above category. The Appellant is logically aware of her employment history, who she reported to at CHQHHS, whether she contributed to a gift of accommodation, whether that gift was for Ms Fitzgerald, the approximate value of the gift or at least of her own contribution, whether Ms Fitzgerald was the chair of her selection panel, Ms Fitzgerald's relationship to Mr Venables of N&P Electrical, her own relationship to people within ICM and their positions in that company, and whether she was invited to or attended Ms Fitzgerald's wedding. These are matters reasonably within her own knowledge and were capable throughout the disciplinary process of being responded to, including by direct denial.
  1. [107]
    For matters that she did not know or did not recollect, then the Appellant could have made that clear in her response to those particulars. This may be the case in relation to the particulars asserting facts in relation to contract arrangements pre-dating her CHQHHS employment, even though it is particularised she worked for one of the relevant contract parties (ICM). It might also be the case in relation to specific details such as values of contracts or modifications to contracts that were not recollected and unable to be verified by virtue of no access to the health service systems. The onus would then be on the Respondent to supply further details or accept the explained non-admission or denial when balancing the evidence.
  1. [108]
    All evidence is to be weighed according to the proof which was in the power of one party to have produced, and the other to have contradicted.[50] As put by the authors of Cross on Evidence: [51]

The evidence against a party may be greatly strengthened by that party's failure to give an explanation, or by the inadequacy of the explanation which the party does give. Similarly, delay in giving an explanation goes to weight because delay can suggest a contrivance and a desire to impede checking by the sceptical. These negative facts can, therefore, be regarded as a species of retrospectant evidence.

…

The absence of an explanation is only significant when the party against whom the prima facie case is proved can reasonably be expected to give an innocent explanation if there is one. When these requirements are satisfied, the failure to give an explanation will support an inference against the party who does not produce one. The inference is that the silence proceeds from a consciousness liability.

  1. [109]
    While a party is entitled to provide no evidence, and indeed this can be a tactical choice in proceedings, a party adopting that tactic cannot complain if a court draws from the facts which have been disclosed all reasonable inferences as to what are the facts which the party has chosen to withhold.[52]
  1. [110]
    Ms Gurdler has further demonstrated she had the capacity to respond directly to selected particulars as she has done in submissions in the current proceedings.

Rebuttal in the appeal process

  1. [111]
    The Appellant discusses whether the allegations are capable of being substantiated in her submissions, stating:
  1. Allegation 1 – The Appellant was not involved in the procurement process that awarded the Boomerangs project, she became project lead after all procurement activities had concluded and she was a junior administrative officer with no financial or procurement delegations. It was widely known amongst the Respondent's Procurement Team and its senior management (including the Respondent's Chief Finance Officer, Alan Fletcher) that the Appellant was Mr Gurdler's daughter (they share their surname). Nothing was hidden. Neither the Appellant nor her Father were invited to or attended Ms Fitzgerald's wedding.
  1. Allegation 2 – The allegation is a logical nonsense. Ms Fitzgerald could not have had a conflict of interest when she was the Chair of the procurement process for the Boomerangs project due to the gift of accommodation referred to in the particulars, because the project was awarded on 27 January 2017 and the gift was allegedly given in October 2017.
  1. Allegation 3 – The Appellant's declaration stated "I note that I have a family relationship (father) within ICM Construction and Maintenance. I Acknowledge and will follow the expected and outlined obligations in regards to probity and CHQ Confidentiality I will ensure to follow correct CHQ Procurement processes and keep procurement matters confidential". This declaration was accepted by the Respondent's Procurement Officer, Panel Chair, two additional panel members, the Procurement and Contracts Management Team Member and the Procurement and Contract Manager. The Respondent failed to particularise, either as an allegation or finding, how the Appellant's declaration was not "full and transparent".

…

  1. Allegation 7 – The Appellant's declaration of a conflict of interest is not disputed. The Respondent has not particularised, either as an allegation or finding, how the Appellant's declaration was not "full and transparent". The project evaluation plan contemplates (at page 5) that a panel member that has declared a conflict of interest may remain on the panel if the panel chairperson has been consulted and believes (in consultation with the Procurements and Contract Management Team) that the panel member can still perform their duties without bias and will fully maintain confidentiality. The proforma certification declaration does not admit of the very circumstance that is contemplated and provided for on page 5 of the same document – ie. that a panel member may have a declared conflict of interest that has nonetheless not disqualified them from being part of the panel. In the circumstances, it is not surprising that the Appellant signed the declaration despite the apparent inconsistency - she had no other option. The internal inconsistency is of the Respondent's own making.
  1. [112]
    The Respondent states in reply that the Appellant did not deny the allegations in either of her show cause responses, and that the information now provided is not supported by the available evidence and was not before the decision-maker. They further submit that each of the allegations relate to the procurement processes and the subsequent contract management processes conducted by CHQHHS.

Therefore to the extent certain activities or conflicts arose after the procurement phase had ended, the Appellant was under a continuing obligation to declare or report conflicts of interest whether perceived or actual.

  1. [113]
    I agree with the Respondent that the details supplied in submissions by the Appellant had not been provided through the show cause process and were not before the decision‑maker. It is clear the decision-maker was not able to consider any impact of the recent responses in his assessment of the evidence to form a view on the balance of probabilities the allegations were capable of being substantiated. It would not be appropriate to disturb conclusions reasonably arrived at on the basis of the information he had available when the decision was made – including the significant number of unexplained non-admissions made by the Appellant.
  1. [114]
    I have already determined that it was reasonable to expect the Appellant would have been able to respond to most of the particulars from her own knowledge or explain where and why this was not the case. The Appellant in their submissions has for the first time responded to some of those particulars, including by direct denial. Per s 531(2)(b) of the IR Act, I have discretion to consider information I consider relevant which was not available to the decision-maker when the decision was made. I consider this information relevant not to suggest that it should alter the decisions subject to appeal, but whether having the information could have made any material difference to the conclusions reached.

Allegation one

  1. [115]
    In relation to allegation one, I agree with the Respondent that Ms Gurdler's involvement in the post-procurement phase of the Boomerangs Project as lead (despite her AO3 classification) was a sufficient basis to allege there was an obligation to report and manage the conflict, which she did not do. Ms Gurdler not being directly involved in the procurement phase of the Boomerangs Project does not negate the substance of the allegation, even though it could have been more specific.
  1. [116]
    I note that Ms Gurdler has never denied, including in her recent submissions, that there was a conflict that should have been declared, or that she did not declare it. She has relied on submissions in the second show cause response that no evidence has been produced to confirm the conflict was not declared. Her current submissions confirm that Mr Gurdler is her father and that this was well known; including by senior officers. Nothing was hidden. Ms Gurdler also does not deny that she was working for ICM when they were subcontracted to perform work for CHQHHS in 2015 before her direct employment with CHQHHS in December 2016, and her subsequent nomination as project lead to the ICM Boomerangs Project in March 2017. Ms Gurdler does not deny that she contributed to a gift of accommodation for Ms Fitzgerald along with her father, but she does deny for the first time in her submissions that neither her nor her father were invited to or attended Ms Fitzgerald's wedding.
  1. [117]
    In considering the above, even in the absence of attending the wedding, it beggars belief that anyone involved in this process, including the Appellant, could form a reasonable view that the above arrangements would pass the pub test let alone actual governance requirements. Something being well-known or obvious does not override each officer's obligations to declare or report perceived or actual conflict.[53] The argument that the decision-maker failed to provide evidence that the conflict was not declared in a circumstance where the lack of evidence is evidence in itself that even the basic declaration had not been filed, does not reflect well on the Appellant.
  1. [118]
    The decision-maker states that Ms Gurdler was afforded the opportunity to respond to all allegations and that for the substantiated allegations she was provided with evidence relevant to the facts he intended to rely on.
  1. [119]
    The decision-maker did not accept it was possible to provide documentary evidence of a declaration not made, and reaffirms that CHQHHS is not in receipt of such a declaration in relation to the Boomerangs Project. He relies on the email of 7 March 2018, in which Ms Fitzgerald reminds Mr Gene Stewart (ICM Project Manager) of her earlier advice that Ms Gurdler is the CHQHHS lead on the Project and is to be included in all documentation related to it. The decision-maker also relies on the declaration dated 10 May 2018 which Ms Gurdler did make in relation to the Alderley Shop 4 refurbishment works, in which she states: "I note I have a family relationship (father) within ICM Construction and Maintenance." This establishes the relationship that would equally give rise to the conflict in the Boomerangs Project, and proves Ms Gurdler was aware of the conflict with ICM and a requirement to report it.
  1. [120]
    It was reasonable for the decision-maker to conclude that a conflict existed that should have been declared. The lack of the declaration is sufficient evidence to demonstrate this was not done. The lack of any denial through the disciplinary process, and the recent confirmation that the relationship was well known and not hidden, supports the finding that no declaration was made. The recent denial in relation to the wedding attendance would not alter the simple facts in relation to this allegation.
  1. [121]
    Furthermore, the new submission that Ms Gurdler was too junior; having no financial or procurement delegation to seemingly warrant any conflict declaration; is not borne out by the email trail referenced by the decision-maker and provided to the Appellant in the show-cause process. Following the 7 March 2018 email, Ms Fitzpatrick is replaced by Ms Gurdler as the CHQHHS person the ICM Project Manager addresses emails to. Other emails in the chain show Ms Gurdler chastising the Project Manager and drawing attention to ongoing fiscal and time pressures being experienced with the project. This suggests she was exercising some authority in relation to the project. In any event, given the nature of her relationship with the company, any work-related involvement in the contract management phase should have been declared – no matter what her pay grade. The declaration would have enabled an assessment about the actual extent of her authority, allowing appropriate management strategies to be discussed and adopted.

Allegation two

  1. [122]
    In relation to allegation two, the Appellant does not respond directly to the substance of the allegation, being that she failed to report a conflict of interest held by Ms Fitzgerald during the procurement and contract management phases of the Boomerangs Project; evidenced by the failure to report the gift of accommodation provided to Ms Fitzgerald. The Appellant rejects the allegation as 'logical nonsense,' because there was no conflict at the time of the gift. The Appellant submits this is because the project was awarded on 27 January 2017, and the gift was allegedly given in October 2017. While I note the giving of the gift has never been denied; including in the recent submissions where direct denials on some particulars have been provided; it is clear the allegation is not confined simply to the awarding of the contract to ICM. It also includes the ongoing contract management process, including Ms Fitzgerald's decision to appoint Ms Gurdler as the lead in March 2018. The Respondent in its submissions contends the failure to report enabled Ms Fitzgerald's ongoing involvement in ICM related projects, including the Alderley Project in which the company her husband worked for was a named entity in the ICM bid.
  1. [123]
    At the time of the decision, the Appellant relied on a technical argument in both show cause responses. The Appellant argued that no positive duty to report the conflict was supported by the decision-maker's evidence. The Appellant stated there was only an assertion that Ms Gurdler failed to report a conflict held by Ms Fitzgerald; a more senior officer that Ms Gurdler. The Appellant contended the documents referred to (including the replacement documents) were not applicable at the time of the conduct. The Appellant further relied on the generic response in the second show cause notice that no evidence was supplied in relation to any of the particulars listed for allegation two. In relation to the screenshot provided to evidence the approximate value of the gift to Ms Fitzgerald, it was argued that it was not clear where that information had come from, or even if it was taken from the correct year.
  1. [124]
    The decision letter states in relation to allegation two, it is not possible to provide further documentary evidence of a report by Ms Gurdler regarding Ms Fitzgerald's acceptance of the gift from Mr Gurdler of ICM and Ms Gurdler. It is confirmed that CHQHHS is not in receipt of a report in relation to the gift. He states there is no documentary evidence that could be provided in relation to attendance at Ms Fitzgerald's wedding.
  1. [125]
    I have already determined that it was reasonable to expect the Appellant would have been able to respond to most of the particulars from her own knowledge, or explain where and why this was not the case. This includes whether she contributed to the gift along with Mr Gurdler of ICM, and its approximate value or at least the value of her own contribution to it. It was possible for Ms Gurdler to confirm whether she was invited to and/or attended Ms Fitzgerald's wedding.
  1. [126]
    It was reasonable for the decision-maker to form the view that the lack of the report in relation to acceptance of the gift is evidence that no such report was made. It was reasonable for the inference to be drawn that in the absence of any denial of the gift throughout the show cause process (and now in this proceeding), that the gift was more likely than not to have been given and no report of it was ever made. The only related direct denial in this proceeding is that Ms Gurdler and her father were not invited to or attended the wedding.
  1. [127]
    This brings me to consideration of any requirement upon Ms Gurdler to report the perceived or actual conflict of Ms Fitzgerald. The relevant instruments being relied on at the time of the decision were the Code of Conduct; which requires meeting obligations to report wrongdoing, including conduct not consistent with the Code of Conduct; HR Policy E9, and the COI Guideline. This second show cause notice provides:

I refer you to clause 3.5 of the COI Guideline, which states: 'Public sector employees have a responsibility to report any corrupt conduct (e.g. abuse of public office) when they have an honest belief, on reasonable grounds, that corrupt conduct has occurred (refer Requirements for reporting corrupt conduct HR Policy E9). An employee who fails to identify, declare and manage a conflict of interest could be the subject of a public interest disclosure made by another employee under the Public Interest Disclosure Act 2010 (Qld).'

The Department of Health HR Policy E9 – Requirements for reporting corrupt conduct (Reporting Corrupt Conduct Policy) lists examples of conduct that constitutes corrupt conduct, one of which is 'not declaring conflicts of interest'. Attached to this letter is a copy of the HR Policy E9 (attachment 26), which applied to Ms Gurdler at the relevant times.

  1. [128]
    The Appellant argued throughout the process that these obligations were not live at the time of the alleged failure to report. In relation to the HR Policy E9, whilst the version attached is the August 2019 version of the policy, the history section makes clear that no relevant amendments of substance had occurred since at least 2014. The only substantial change since that time was the incorporation of the new definition of corrupt conduct in the Crime and Corruption Act 2001 (Qld) effective from 1 March 2019, which incorporated consideration of conduct by those people not officers of the public sector.[54]
  1. [129]
    The COI Guideline makes clear that it is a new Guideline as of April 2017, introduced to support existing human resources policies including HR Policy E9. It refers in its opening paragraph to the ongoing obligation of employees under the Code of Conduct. Clause 3.5 of this Guideline sets out the responsibility to report conduct of others, referring specifically to HR Policy E9 (as it logically was in April 2017) and the general obligation under the Code of Conduct.
  1. [130]
    I concur with the view of the decision-maker that on balance the obligation to report did exist in relation to the acceptance of the gift (and arguably a disclosure in relation to the giving of the gift by herself and ICM). If not at the time the gift was given, there was certainly an ongoing obligation to report that arose when Ms Gurdler was appointed as the lead of the Boomerangs Project by Ms Fitzgerald, or at the time of Ms Fitzgerald's ongoing involvement in procurement or contract management involving ICM. This ongoing involvement is confirmed in the Boomerangs Project email trail, whereby Ms Fitzgerald was continuing to engage with Mr Gurdler and Mr Gene Stewart (ICM Project Manager). Even after Ms Fitzgerald emailed ICM on 7 March 2018 to advise that Ms Gurdler was the lead, Ms Fitzgerald continued to be copied in as a recipient in the emails.
  1. [131]
    In relation to the information supplied by the decision-maker about the approximate value of the gift of accommodation, notwithstanding the issues raised by the Appellant there is no doubt the gift would have been of significant value and certainly far in excess of the reporting threshold of $150.[55] The Appellant could easily have put this question beyond doubt.

Allegation three

  1. [132]
    In relation to allegation three, in current proceedings the Appellant contends that despite the allegation of deficiency in her disclosure relating to the Alderley Village procurement process, the declaration was accepted by (and therefore presumably acceptable to) the procurement officer, panel chair, panel members, procurement team members and procurement manager. The Appellant argues the Respondent failed to particularise, either as an allegation or finding, how the Appellant's declaration was not "full and transparent."
  1. [133]
    In the second show cause response, Ms Gurdler outlined no objection (or any other comment) to the particulars that she completed an Acknowledgement of Obligation declaration form signed 10 May 2018, witnessed by Ms Fitzgerald on the same date. It stated:

I, Kristyn Gurdler, in the position of A/Property and Leasing Officer, Facilities Management.

Declare that the following are all the past, current and anticipated interests which may give rise to a real or apparent conflict with my impartial involvement in the evaluation process.

I note that I have a family relationship (father) within ICM Construction and Maintenance. I Acknowledge and will follow the expected and outlined obligations in regard to Probity and CHQ Confidentially (sic.) I will ensure to follow correct CHQ Procurement processes and keep Procurement matters confidential.

  1. [134]
    This is the first declaration provided by the Appellant relating to a tender process involving ICM. The decision-maker concludes he is not satisfied that the declaration fully and transparently declared the conflict. The particulars relied upon from the show cause process relate to;

• The gift provided to Ms Fitzgerald by Mr Gurdler of ICM and Ms Gurdler;

• Mr Gurdler of ICM being her father;

• Ms Fitzgerald witnessing the declaration;

•ICM subcontracting electrical work to N&P Electrical, a company listed in ICM's project tender document;[56] 

• Mr Venables, who works for N&P Electrical, is Ms Fitzgerald's husband;

• That there is no documentary evidence of any action taken by Ms Gurdler to address the conflict throughout the tender process; and finally

• ICM was awarded the contract.

  1. [135]
    I have already determined that it was reasonable to expect the Appellant would have been able to respond to most of the particulars from her own knowledge or explain where and why this was not the case.
  1. [136]
    For this allegation I find from consideration of the declaration itself, it objectively does not fulfil its own requirement of outlining "all the past, current or apparent interests which may give rise to a real or apparent conflict with my impartial involvement in the evaluation process."  I form this view on the basis that it notes Ms Gurdler has a family relationship (father) in ICM, but does not name him or outline how his position in the company might be a significant issue. Mr Gurdler is a director of ICM.
  1. [137]
    Further, it does not outline any previous employment the Appellant had at ICM, or name anyone else within the company that she may have a relationship with through her employment or familial relationship with the company. The declaration also does not highlight the past or potential conflict arising from her direct supervisor, who witnessed the declaration, being married to an employee of N&P Electrical – a named subcontractor for ICM.
  1. [138]
    The COI Guideline, which applied at all times relevant to this allegation, states at cl 3.4 that Employees are responsible for identifying and disclosing their own conflicts of interest, having regard to how a member of the public would view the employee's decision as being influenced by their personal interests or associations. Further at cl 3.5:

Should an actual or perceived conflict of interest arise an employee must promptly identify and disclose any conflict of interest that might affect or be perceived to affect, the proper performance of their work. …

  1. [139]
    In sch 2 to the COI Guideline, it further states:

Stage 1: Identify

…

An employee must declare as much information as is necessary to allow the matter to be adequately addressed and/or investigated to determine whether a conflict exists. A record of the disclosure should be kept by the employee along with records of any subsequent discussions.

  1. [140]
    Furthermore, as noted above at [35], cl 1.2 of the Code of Conduct provides that public servants are required to actively participate with their agencies in developing and implementing resolution strategies for any conflict of interest.
  1. [141]
    These obligations were Ms Gurdler's, and in spite of any failure by others involved in the process to interrogate the inadequacy in managing the conflict, this does not lessen the responsibility of Ms Gurdler in relation to her own conduct. It is particularised that other than the disclosure subject to this allegation, no records exist relating to how the conflict would be managed or monitored, including records that are required to be kept by the employee. The decision-maker says that he has carefully considered the evidence, including the responses provided by Ms Gurdler, and determined that the factual allegations are substantiated.

Allegation seven

  1. [142]
    In relation to allegation seven, the Appellant does not dispute their declaration in relation to a conflict arising in the Deception Bay Project. The Appellant reiterates, as was the case for allegation three: "the Respondent has not particularised as either an allegation or finding, how the Appellant's declaration was not "full and transparent.""
  1. [143]
    In this case, the declaration signed on 25th July 2019, states:

I, Kristyn Ashleigh Gurdler, in the position of Property and Leasing Officer, Facilities and Capital Infrastructure

Declare that the following are all the past, current and anticipated interests which may give rise to a real or apparent conflict with my impartial involvement in the evaluation process. …

I note that I have a family and personal relationship with possible tender invitees within I.C.M.

I Acknowledge and will follow the expected and outlined obligations in regards to Probity and CHQ Confidentially (sic.) I will ensure to follow correct CHQ Procurement processes and keep Procurement matters confidential.

  1. [144]
    In the response to the particulars for this allegation during the show cause process, the Appellant does not object to or offer any comment either regarding her involvement in this procurement process from 16 July 2019, or that she made the declaration above. Similarly, for the particulars regarding her subsequent declaration in the evaluation phase of the tender, where she declared in direct contrast with her earlier Acknowledgement of Obligation, she signed off:

I declare that I have evaluated all offers received in accordance with the approved evaluation strategy outlined in the evaluation plan. I have also completed and Obligation of Acknowledgement form and have no declared conflicts. The recommended offer [from ICM] maximises value for money and delivers the department's requirements.

  1. [145]
    On the balance of the particulars, the default objections were relied upon in the second show cause response. That is, there was no evidence in support of the particulars and no documentary evidence of the records that do not exist was provided. I have already determined that it was reasonable to expect that the Appellant would have been able to respond to most of the particulars from her own knowledge, or explain where and why this was not the case. Such is the case in relation to this allegation – including that Mr Gurdler was the contact listed for ICM in this procurement process, and that ICM were the successful tenderers.
  1. [146]
    In submissions in the current proceedings, the Appellant provides information in support of her conduct in this process. She indicates that the process itself contemplates a person with a declared conflict, appropriately managed and considered by the panel chair and others, might not be removed from the procurement process. It is stated that the documentation, which concurrently provides for this possibility yet requires a declaration that no conflict exists, created the situation whereby the inconsistent declaration had to be provided – not through any desire of the Appellant to deliberately mislead in relation to her situation.
  1. [147]
    The Respondent replies that the comments were capable of being edited or the declaration not signed as is. It is clear, they state, that both declarations in this case cannot be true.
  1. [148]
    The decision-maker determines that the evidence of the two contradictory statements, and consideration of the response in the show cause process, is sufficient to determine there was not a full and transparent declaration of the conflict. It states, in fact, the Appellant made inconsistent declarations.
  1. [149]
    I agree and consider the objectively inadequate nature of the declaration referring only to "a family and personal relationship with possible tender invitees within ICM," could not be reasonably described as providing all the relevant details to allow for a proper assessment of the extent of the conflict to be determined, nor for appropriate conflict management to be put in place.
  1. [150]
    The reasons I lay out for the inadequacy of the declaration in relation to allegation three are relevant here. While it is assumed the family relationship is with her father, who is the ICM contact for this procurement process, the declaration also provides for a personal relationship that is not elaborated. The failure to particularise the personal relationship with another ICM employee speaks to an objection raised by the Appellant in the show cause process, that "other ICM employees" referenced in the allegations are not particularised and named. This declaration from the Appellant confirms that a relationship exists with at least one other ICM employee who is not her father. It is also not her partner, who the Appellant advises was not employed by ICM until late 2020 in her first show cause response.
  1. [151]
    The fact that the clearly inadequate declaration was not objected to by others in the process does not render the findings in relation to the Appellant's own conduct in this allegation as unfair or unreasonable.

A finding on the balance of probabilities

  1. [152]
    As addressed above and in consideration of each of the allegations, the Appellant has argued that the failure of the decision-maker to provide evidence to support the particulars precludes the decision-maker from deciding on the balance of probabilities that the allegations are substantiated. Further, the Appellant submits that the decision-maker does not adequately outline in the decision letter how the standard of proof has been met in reliance of the evidence relevant to each allegation.
  1. [153]
    It is well settled and reflected in the Discipline Directive that while the standard of proof does not alter from case to case, the strength of evidence required to meet the standard does vary, as described in Briginshaw v Briginshaw.[57]
  1. [154]
    In Perry v State of Queensland, McLennan IC summarised the Briginshaw principle as follows (citations omitted):

[46]  In civil matters, the standard of proof is the balance of probabilities. The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

[The] nature of the issue necessarily affects the process by which reasonable satisfaction is attained.158

  1. [155]
    Reviewing the evidence the decision-maker relied on in coming to his decision, and my determination that many of the particulars were capable of being responded to but were not, a sufficient basis exists for reasonable satisfaction that the conduct as described in the allegations occurred on the balance of probabilities. That is, at the civil standard; more likely than not,[58] at the reasonable satisfaction of the tribunal.[59] I also agree with the Appellant that the allegations were serious, which makes her decision to rely on technical points throughout the show cause process, and not to provide rebuttal to the particulars in the alternative to those technical points, unfortunate.
  1. [156]
    While the allegations were serious, they were not overly complex. In most cases, the documented evidence enabled a reasonable conclusion to be reached. The absence of documented material in the context of an allegation that a required report or declaration was not made also constitutes sufficient evidence to enable a conclusion to be reached.  The information provided by the Appellant in submissions in the current proceeding was also weighed in my review against the evidence relied upon by the decision-maker. As outlined above, the new information would not be sufficient to disturb the conclusions reached, but might have some relevance in consideration of the show cause on disciplinary action.
  1. [157]
    The Appellant raises concern with what she describes as perfunctory reasons laid out in the decision letter. The Discipline Directive requires, inter alia:

9.4 Decision on grounds (disciplinary finding)

a.the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities

b.the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding\

c.for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, …

  1. [158]
    The Appellant in these proceedings has repeated and relied upon responses made to the two show cause notices in relation to the decision on findings. The decision-maker in his decision also relies on his responses made to the Appellant's contentions captured in the second show cause notice, and particulars in the first show cause notice, thereby incorporating those responses and details into his conclusions in addition to the particular pieces of evidence considered crucial alongside any response from the Appellant. While technically all of the relevant consideration should have been combined into the decision letter, I do not consider this to be a deficiency leading to any identified or actual disadvantage to the Appellant. 
  1. [159]
    I consider for all of the reasons above,  it was fair and reasonable for the decision-maker to substantiate allegations one, two, three and seven on the balance of probabilities.
  1. [160]
    The Appellant's third, sixth, seventh and eighth appeal grounds are dismissed.

Question 4 – Having substantiated allegations one, two, three and seven, was it open to the decision-maker to determine that the Appellant had contravened section 91(1)(h) of the Public Sector Act?

  1. [161]
    The relevant appeal ground for this question is:

 9. It was not reasonably open to the decision-maker to be satisfied that the Appellant had contravened section 91(1)(h)

  1. [162]
    The Appellant relies on submissions made in both show cause responses and contends that the factual findings underpinning the decision that the Act had been contravened were flawed.
  1. [163]
    The Respondent submits it was reasonably open to the decision-maker to be satisfied of the contravention, having regard to the evidence available and the responses provided by the Appellant's legal representatives on her behalf.

Consideration

  1. [164]
    I refer to my findings above that the substantiation of allegations one, two, three and seven was fair and reasonable, based on the information before the decision-maker reviewed on the balance of probabilities. My consideration must now turn to whether it was open to the decision-maker to determine the conduct warranted the findings that Ms Gurdler contravened without reasonable excuse a standard of conduct in the Code of Conduct sufficiently serious to warrant disciplinary action.
  1. [165]
    On any objective view, the situation wherein two officers in the Facilities Management Department were directly involved in procurement and contract management processes related to companies with whom they both have significant personal connections to is concerning. This is particularly so, as ineffective oversight and assurance measures allowed inadequate reporting and management of these conflicts to continue over several years. By any measure this is a significant governance failure within the Health Service.
  1. [166]
    The Appellant apportions blame to other more senior people in the Health Service involved in or responsible for the procurement processes. Those people should certainly be accountable to the extent of their own responsibility. The Appellant also had responsibility under the Code of Conduct and COI Guideline to be transparent and declare and report conflicts of which she was logically aware.[60] As stated in cl 1.2 of the Code of Conduct:

Having a conflict of interest is not unusual and it is not wrongdoing. However failing to disclose and manage the conflict appropriately is likely to be wrongdoing.

  1. [167]
    The person with the best knowledge of the nature of her relationships within ICM and the positions held by those with whom the connection existed was the Appellant herself. It was firstly incumbent upon her to disclose the full extent and impact of her interests and relationships with ICM, and to the extent relevant with N&P Electrical. No information was supplied by Ms Gurdler in relation to the Boomerangs Project, and the information supplied by Ms Gurdler in the two disclosure documents linked to substantiated allegations was clearly inadequate. It may be the case that had the disclosures been more detailed, someone in the assurance structure (not burdened by their own conflict) might have intervened to identify the most obvious appropriate response to manage the declaration was removal from her involvement in the matters creating the conflict.[61]
  1. [168]
    This should have occurred from the point of engagement given how significant ICM's involvement in contracts within CHQHHS was,[62] and that Ms Gurdler not only had a familial relationship with a key person in the company, but she also previously worked for them and had an admitted personal relationship with at least one other ICM employee. It should have been obvious to Ms Gurdler, Ms Fitzgerald and others that Ms Gurdler should not have been involved in any of the matters relating to ICM during her employment within that Department and certainly not contract management and procurement responsibility.
  1. [169]
    Issues regarding failure of other more senior people in the Health Service to address the inadequacies or understand how improper the whole situation was might be better ventilated as mitigation in relation to the disciplinary action that should have been taken if the employment had not ended – it does not alter that in relation to her own conduct the allegations have been substantiated and are sufficiently serious to meet the test in the ground.
  1. [170]
    The Appellant complains that it is not made clear in the show cause process or in the decision how the conduct is said to have breached the grounds relied upon, or how the decision-maker concluded it met the test. As indicated in the decision-letter and supported by the submissions in this appeal:

I have considered your assertion in your letter of 21 September 2023 that the proposed disciplinary grounds are 'misconceived, unsustainable' or 'unparticularised' but do not agree. Nor do I agree the proposed grounds in respect of the standards of conducti the Code of Conduct from the Queensland Public Service (Code of Conduct) cannot sensibly be responded to. The headings to clauses 1.1 (Commit to the highest ethical standards) and 1.2 (Manage conflicts of interests) of the Code of Conduct and the description that follows clearly outlines the relevant standard of conduct.

  1. [171]
    Allegations one, three and seven related to failures to declare or adequately declare and manage perceived and actual conflicts of interest. Having substantiated the conduct, it was reasonable for the decision-maker to confirm the view outlined in the second show cause notice that this conduct, if proven, would amount to a breach of a required standard of conduct; being the failure, without reasonable excuse, to manage conflicts of interest. This includes the requirements in cl 1.2 of the Code of Conduct noted above at [35].
  1. [172]
    Allegation two related to a failure to report a conflict held by Ms Fitzgerald. Having substantiated the conduct, it was reasonable for the decision-maker to confirm the view outlined in the second show cause notice that this conduct, if proven, would amount to a breach of a required standard of conduct; being the failure, without reasonable excuse, to commit to the highest ethical standards when fulfilling responsibilities. This includes the requirements in cl 1.1 of the Code of Conduct that public servants will provide objective and impartial advice, make ethical decisions, and meet obligations to report suspected wrongdoing, including conduct not consistent with the Code.
  1. [173]
    The decision-maker has also formed a view in relation to the conduct for the four substantiated allegations that the failure to comply with the required standard was sufficiently serious to warrant disciplinary action. As outlined above, this view was formed on the basis that Ms Gurdler understood, or ought to have understood, the standards of conduct expected, and should have been more alert given the nature of her role. I concur that this was a reasonable view given the nature and context of the substantiated conduct.
  1. [174]
    The Appellant's ninth appeal ground is dismissed.

Question 5 – Did the decision regarding disciplinary findings contravene the discipline directive and QH Policy E10?

  1. [175]
    The relevant appeal grounds for this question are:

4. The decision as [sic.] made in contravention of s 9.3(d) of PSC Directive 5/2 "Discipline".

5. The decision was made in contravention of s. 3 and Schedule 1 of the Queensland Health HR Policy E10 – Discipline.

  1. [176]
    As previously outlined above at [38], cl 9.3(d) of the Discipline Directive requires:

d. a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence

  1. [177]
    HR Policy E10 Clause 3 and Attachment One are more broad ranging. Clause 3 relates to a delegate being able to discipline an employee only where they are reasonably satisfied based on the evidence before them that the employee has engaged in relevant conduct. Attachment One[63] outlines the entire discipline process and is generally consistent with the Discipline Directive.
  1. [178]
    The Appellant relies on responses provided in the first and second show cause notices. The Appellant contends that either the evidence establishing the identified alleged factual particulars was not provided to the Appellant, or there was no evidence to establish them. The Appellant contends on either basis the decision was not fair or reasonable.
  1. [179]
    The Respondent submits that the decision-maker provided a copy of all evidence relevant to and relied upon in his decision. The Respondent further submits there was no denial from the Appellant in relation to the allegations. The Appellant has not identified any evidence relied upon in the decision that was not provided to her in the show cause process.  
  1. [180]
    These submissions seem to relate to the earlier arguments regarding the provision of or reliance on the report arising from the preceding investigation process, and the 'failure' of the decision-maker to provide evidence to support each of the particulars relied upon. My earlier findings in relation to those matters are relevant here.
  1. [181]
    To the extent the reference to the Attachment is making a broader point about purported flaws in the disciplinary process both in general and as it relates to the decision on findings, I do not agree.
  1. [182]
    Each of the steps the decision-maker was required to undertake were undertaken. The allegations and particulars were put to the Appellant, who was afforded ample opportunity to respond. While technical issues were raised by the Appellant through the show cause process on findings, technical deficiencies accepted by the decision-maker were remedied, or in the alternative, disagreements were explained. This led to the second show cause notice, which provided a further opportunity to respond.  It was in this response that the Appellant took significant issue with the evidence in relation to almost every particular, and did not provide any response to the substance of the allegations. The decision-maker then made the decision based on the documentary evidence available and the Appellant's responses, including the absence of denials. Based on this consideration, the decision-maker formed a view that four of the allegations were not able to be substantiated on the balance of probabilities, but that there was sufficient evidence to find that allegations one, two, three and seven were substantiated and gave rise to the grounds outlined in the decision-letter. This fundamentally complies with HR Policy E10.
  1. [183]
    I further note Dwyer IC's comments in McNeil v State of Queensland [64] as relevant:

 [68] The function of the Commission is to review a decision to determine whether it is fair and reasonable. While a failure to comply with an applicable directive might have the capacity to render a decision unfair or unreasonable in a particular set of circumstances, it is equally true that it may only amount to a technical defect in the process that otherwise produces no unfairness. A failure to conform with a directive will not, of itself, render a decision unfair and unreasonable.

  1. [184]
    The Appellant's fourth and fifth appeal grounds are dismissed.

Question 6 – Had the Appellant still been employed, would a disciplinary action of reduction in classification level be fair and reasonable?

  1. [185]
    The relevant appeal ground for this question is:

10. It was not reasonably open to the decision-maker to be satisfied that, had the Appellant still been employed, disciplinary action of a reduction in her classification level would have been fair and reasonable and therefore the decision to issue a disciplinary declaration was unauthorised.

  1. [186]
    The Appellant submits that given the failure to provide a reasonable factual basis for determining a disciplinary ground existed, it was not reasonably open to the decision-maker to make a disciplinary declaration that:

a) A disciplinary finding was made that a disciplinary ground(s) existed with respect to the Appellant (Disciplinary Finding); and/or

b) Had the Appellant still been employed ,disciplinary action of a reduction in her classification level, would have been taken against the Appellant. (together disciplinary action).

  1. [187]
    The Respondent argues in submissions that it was open to Mr Tracey to determine that if the Appellant's employment had not ended, the disciplinary action that would have been taken against her would be a reduction in her classification level, based on the evidence provided and taking account of the responses made on behalf of the Appellant.

Consideration

  1. [188]
    As reproduced above at [32], a disciplinary declaration is the only disciplinary action able to be taken against a former employee. It must consist of the substantiated ground/s and declare what the action would have been against the employee if the employment had continued. To be able to issue the declaration, the decision-maker must be satisfied that the appropriate action which would have been taken was a reduction in classification level or termination of employment.
  1. [189]
    As outlined in the decision letter, a Declaration is considered to be serious disciplinary action which Ms Gurdler may be required to disclose to a chief executive of a Department if seeking employment with that Department.
  1. [190]
    Having determined that a disciplinary ground had been substantiated, the decision-maker appropriately turned his mind to what action would have been taken if the employment had continued. The decision-maker asserts that for the reasons reproduced at [16] above, he is satisfied that the action he would have taken against Ms Gurdler if her employment had not ended would have been a reduction in classification level.
  1. [191]
    Whether this was a determination reasonably open to the decision-maker will be considered in combination with the next question.

Question 7 – Did the disciplinary declaration decision contravene the Discipline Directive, Discipline Policy E10, or the rules of natural justice?

  1. [192]
    The relevant appeal ground for this question is:

11. The decision to impose a disciplinary declaration 6 months after receiving the Appellant's most recent submissions and without first issuing a second show cause notice on proposed penalty was made in contravention of (a) ss 9.4, 9.5 and 9.6 of Directive 5/23; (b) ss. 3.1 and 3.2 of QH HR Policy E10; and (c) the rules of natural justice.

  1. [193]
    A number of arguments are advanced in the Appellant's submissions in support of ground eleven. Firstly, by reference to the PS Act, the Appellant highlights the difference between a disciplinary finding prescribed in s 90 and disciplinary action in s 92. It is noted that a disciplinary declaration against a former public sector employee is a disciplinary action by virtue of s 95 of the PS Act, however, a declaration can only be made if the action that would have been taken was reduction in classification or termination of employment. Section 98 of the PS Act requires that when disciplining a current or former public sector employee, the chief executive must comply with the Act and any relevant directive. The statutory framework is used by the Appellant to argue that the requirement for a former public sector employee to be heard in relation to a disciplinary finding and disciplinary action is the same as for an ongoing employee. It is further submitted that in any event, the first and second show cause notices were clear in that they were asking the Appellant to show cause in relation to disciplinary findings only.
  1. [194]
    The Respondent argues that because there is only one possible disciplinary action, based on a choice between reduction in classification level or termination, a second show cause process was not required. It further submits there is no express obligation to run a separate show cause process. In the alternative, the Respondent submits this should have been clear to the Appellant, who could have (but chose not to) make arguments as to action in their second show cause response.
  1. [195]
    The Respondent also submits that a combined show cause process is allowed under the Directive. The Respondent argues such a combined show cause process is applicable on the basis that it was in the Appellant's interests to expedite the process in this way, given she had not been an employee for some time.
  1. [196]
    The Appellant contends in response that the limitation on the possible outcome is not a relevant exemption, and ignores the condition precedent that the decision-maker must first decide whether the action that would have been taken was reduction in classification or termination. The Appellant contends that she was entitled to show cause as to why the decision-maker should not be satisfied under the Discipline Directive.

Consideration

  1. [197]
    I agree with the Appellant. The Appellant had a right to be heard in relation to the proposed disciplinary action, which the decision-maker could have included in the decision letter on findings. It is common practice in disciplinary decision letters that the letter states the decision/s on findings and includes a show cause notice on the proposed disciplinary action/s. HR Policy E10 provides for this as follows:[65]

The delegate may combine the disciplinary finding (refer to section 4.2 of this Attachment) and the show cause notice on disciplinary action within the same written correspondence.

  1. [198]
    This is different to a combined show cause process, which is permitted by the Discipline Directive and HR Policy E10 only if particular requirements are met. While the Respondent is suggesting what occurred here was a combined process, both show cause notices were clearly in relation to disciplinary findings only.
  1. [199]
    To suggest the Appellant could have included a response on disciplinary action as part of the second show cause response unreasonably shifts responsibility for the right to be heard on this question from the decision-maker to the Appellant. The decision-maker can only move to determine disciplinary action in the absence of a response from an employee, where the invitation to provide the response has been made but not taken up.[66] Such is not the case here.
  1. [200]
    Former employees would not be able to argue that a disciplinary action other than a disciplinary declaration should be taken. The Act makes clear this is the only possible action. The show cause process would provide an opportunity for the Appellant to be heard as to whether the findings reasonably give rise to the disciplinary action of  a reduction of classification level, had the employment not ended, as a pre-condition to any declaration being made. A decision could then be made, after having regard to any submissions made by the Appellant. A post-employment disciplinary process cannot reasonably mean the two nominated disciplinary actions are simply options from which the decision-maker can make an unfettered choice in complete isolation of any submissions in mitigation the person subject to that decision is entitled to make.
  1. [201]
    To illustrate this point, I compare Ms Gurdler's show cause process to one described by Pidgeon IC in Regan v State of Queensland.[67] The decision which Pidgeon IC upheld involved a combined show cause notice on disciplinary findings and disciplinary action in a post-separation matter. The show cause notice in that decision relevantly set out:

[77]In the Show Cause letter provided to Mr Regan on 23 February 2022, Mr Regan was invited                             to respond to the proposed disciplinary declaration. The letter informed him that the                                           decision-maker would specifically consider:

• The seriousness of the disciplinary finding;

•Mr Regan's classification level and/or expected level of awareness about his                                           performance and conduct obligations;

• whether extenuating or mitigating circumstances applied to his actions;

•his overall work record including previous management interventions and/or                                           disciplinary findings;

•the explanation given by him; the degree of risk to the health and safety of employees,                                           customers and members of the public; and

•the likely impact the disciplinary action will have on public and customer confidence                                           in the Department and its proportionality to the gravity of the disciplinary finding.

  1. [202]
    In contrast, the first show cause letter issued to Ms Gurdler simply states the following:[68]

Notice to show cause

I now afford you the opportunity to show cause, in writing, why a disciplinary finding should not               be made against you on the grounds as set out above.

  1. [203]
    Likewise, the second show cause letter issued to Ms Gurdler states:[69]

Further opportunity to show cause

In light of the incorrect versions of policy documents being provided previously, and the amended               possible grounds for discipline in relation to Allegations 2, 4 & 6, I now afford Ms Gurdler a further               opportunity to show cause, in writing, why a disciplinary finding should not be made against her on               the grounds outlined in this and the initial show cause letter.

  1. [204]
    It is clear to me what has occurred in this case was no show cause process on disciplinary action – not a combined show cause process. The failure to seek a response from the Appellant prior to determining what the outcome would have been renders this part of the process unfair and unreasonable. The decision to issue a declaration based on the unilateral view as to what would have occurred if the employment had not ended is not fair and reasonable.
  1. [205]
    As reproduced above at [32], the PS Act sets a two‑year time limit for disciplinary findings or disciplinary action to be made or taken after the end of the employee's employment. Relevantly in this case, the Act also provides the two-year limit does not stop disciplinary action being taken following an appeal. This affords an opportunity for this flaw in the process to be rectified through a show cause process on disciplinary action.
  1. [206]
    Appeal grounds ten and eleven are allowed.

Conclusion

  1. [207]
    I have determined that the decision to find the allegations are substantiated, giving rise to disciplinary grounds, was fair and reasonable. It was also conducted in a manner that was procedurally fair. The appeal against the decision on findings is dismissed.
  1. [208]
    I have determined that the process involved to decide to issue a disciplinary declaration was not fair and reasonable. The decision ought to be set aside in order to allow a show cause process in relation to disciplinary action to occur.

Existing or new decision-maker

  1. [209]
    In the Appellant's further written submissions filed 21 May 2024, she states that it would not be appropriate for the Commission to send the disciplinary action decision back to the original decision-maker. The Appellant submits in summary:

•The decision-maker has already reached a final and concluded view and is therefore               disqualified due to bias or reasonable apprehension of bias;

•The decision-maker's advisers have also formed a concluded view and are therefore               biased or there is a reasonable apprehension of bias that would infect any               alternative decision-maker within the health service; and

•There is no other appropriate alternate decision-maker in CHQHHS, as the original               decision-maker is the chief executive. Any other officer would be more junior               and disinclined to make a contrary decision.

  1. [210]
    I consider the issue of apprehended bias to be relevant in this context, as an actual decision has already been made by the decision-maker. This is a state beyond pre‑judgement. For the reasons outlined by the Appellant, I agree that a new decision‑maker is required. The new decision-maker should be a suitably senior officer with the appropriate delegation from another HHS or from the Department.
  1. [211]
    As it may take some time for the Department to identify the appropriate decision-maker and for that new decision-maker to develop the required notice, the show cause notice on disciplinary action should be issued within 21 days of this decision being released.
  1. [212]
    I order accordingly.

Order

Pursuant to s 562C(1) of the Industrial Relations Act 2016:

1. The decision appealed against in relation to disciplinary findings is confirmed.

2.The decision appealed against in relation to disciplinary action is set aside and returned to a new decision-maker, with a copy of this decision.

3.The new decision-maker will be a suitably senior officer from another HHS               or the Department, with appropriate delegation.

4.The show cause notice on disciplinary action is to be issued within 21 days of this decision.

Footnotes

[1] The Appellant's employment originally commenced on 12 December 2016 as a Facilities Support Officer (AO3). The Appellant's substantive role prior to resignation was as an AO6.

[2] The Appellant maintained her higher AO7 level salary during this period.

[3] The Respondent later acknowledges in the disciplinary process that they accidentally attached the previous Discipline Directive and the modern Conflict of Interest Guideline, and rectify this.

[4] The Respondent also later acknowledges in the disciplinary process that they accidentally attached the modern Conflicts of Interest Guideline rather than the Guideline in place at the time of the impugned conduct, and rectify this.

[5] Vega Vega v Hoyle & Ors [2015] QSC 111 ('Vega Vega').

[6] Queensland Health HR Policy E10: Discipline (June 2021) ('HR Policy E10').

[7] Transcript of mention held on 19 April 2024 p 1-3 lines 14 – 31.

[8] Ibid p 1-3 line 33 – p 1-4 line 7.

[9] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 (Merrell DP), [25].

[10] Ibid.

[11] Goodall v State of Queensland & Anor [2018] QSC 319, 5 as to the former, comparable provisions in the Public Service Act 2008 (Qld).

[12] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].

[13] Code of Conduct for the Queensland Public Service ('the Code of Conduct') cls 1.1, 1.2.

[14] Public Sector Commission Directive 5/23 – Discipline ('Discipline Directive').

[15] Emphasis added.

[16] HR Policy E10 (n 6) Attachment One cl 4.2.

[17] Now superseded by Public Sector Commission Directive 1/24: Workplace Investigations

[18] Emphasis added.

[19] The Appellant's submissions expressly adopt the submissions made by her lawyer in the first and second show cause responses at [2].

[20] Letter of Farren McRae Lawyers dated 11 August 2023, filed 11 April 2024 ('First show cause response'), p 3; Letter of Farren McRae Lawyers dated 21 September 2023, filed 11 April 2024 ('Second show cause response'), p 1 – 4.

[21] Email of Peter Sparrow, Director, HR Operations sent to the Industrial Registry, dated 18 April 2024, in response to an email of the Appellant sent to the Industrial Registry, dated 17 April 2024.

[22] Vega Vega (n 5), [176]; Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162, [33].

[23] Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, [57]. (Gageler and Gordon JJ); Manttan v State of Queensland (Department of Education) [2022] QIRC 238, [7].

[24] Vega Vega (n 5), [173]. See also Kioa v West (1985) 159 CLR 550, [33].

[25] See e.g. Coutts v Close [2014] FCA 19, [114].

[26] Ivers v McCubbin [2004] QSC 342, [31]; Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162, [62].

[27] Vega Vega (n 5), [176] – [177].

[28] Noting that 'disciplinary decision' is defined in s 129 of the PS Act as a decision under a 'disciplinary law,' and a Part 9 HHB Act investigation does not fall under the definition of a 'disciplinary law' as it appears in Sch 2 of the PS Act, having regard to the functions of a health service investigator set out in s 189 being to investigate and report on matters. No disciplinary powers are afforded to the investigator. This view is further supported by cl 4.4 of the former Workplace Investigations Directive (or cl 5.5 of the modern Workplace Investigations Directive 1/24), set out below at [66].

[29] Note that Directive 17/20 is now superseded by Directive 1/24: Workplace investigations. The modern clause is cl 5.5. The reference to ch 6 of the PS Act refers to ch 6 of the former Public Service Act 2008 (Qld). The disciplinary processes in the modern PS Act are contained in ch 3.

[30] See above at [57].

[31] Appellant's submissions filed 26 April 2024, [3].

[32] The discipline process is set out in cl 9 of the Discipline Directive (n 14).

[33] See above at [54].

[34] Attorney-General for the State of Queensland v Wood [2023] QSC 78.

[35] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337 at [6]. Note Kiefel CJ and Gageler J in GYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15; (2023) 97 ALJR 419 at [37]-[38] adopt the Ebner test, referring to it as a "double might" test.

[36] Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17; (2001) 205 CLR 507.

[37] Ibid at 531-532.

[38] Ibid.

[39] Reproduced in the order I will discuss them.

[40] Queensland Health HR Policy E9: Requirements for reporting suspected corrupt conduct (August 2019) ('HR Policy E9').

[41] Queensland Health HR Guideline QH-GDL-113-1:2017 – Conflicts of Interest ('COI Guideline').

[42] Emphasis added. By not impugned, I mean that no comment was made in relation to them at all – not that they were admitted.

[43] Refer to [83] above.

[44] Schaale v Hoechst Australia Ltd (1993) 47 IR 249.

[45] Maher v Isaac Regional Council [2020] QIRC 191, [33].

[46] As outlined at [12] above.

[47] IR Act s 531(2)(a).

[48] King v Workers' Compensation Regulator [2019] QIRC 134, [18] – [25].

[49] PDS Rural Products Ltd v Corthorn (2004) 143 IR 354, [48]-[50].

[50] Blatch v Archer [1774] 1 Cowp 63.

[51] Cross on Evidence (14th Australian ed, Lexis Nexis, 2021) (JD Heydon ed), [1190], [1205].

[52] British Railways Board v Herrington [1972] AC 877 at 930

[53] Noting cl 1.1 of the Code of Conduct (n 13) regarding reporting suspected wrongdoing, including conduct not consistent with the Code.

[54] Crime and Corruption Act 2001 (Qld) s 15.

[55] Public Sector Commission Directive 22/09 – Gifts and Benefits (1 January 2010) cl 7.4.

[56] Respondent's bundle of documents filed 26 April 2024, Attachment 11: tender submission by I.C.M. Construction (QLD) Pty Ltd for Alderley Village dated 21 May 2018 ('the Alderley Tender')

[57] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[58] In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563, 586.

[59] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361–2

[60] Code of Conduct (n 13) cl 1.2; COI Guideline (n 41) cl 3.5

[61] See sch 2 of the COI Guideline (n 41). In the section titled "Stage 2: Manage," it details the six major options for managing a conflict of interest.

[62] The Alderley Tender (n 56) outlines ICM's extensive involvement at the Health Service.

[63] Which the Appellant refers to as schedule 1.

[64] McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308.

[65] HR Policy E10 (n 6), Attachment One cl 4.3. Emphasis added.

[66] Discipline Directive (n 14) cl 9.5(g), reproduced above at [41].

[67] Regan v State of Queensland (Department of Education) [2022] QIRC 335.

[68] Emphasis underlined.

[69] Emphasis underlined.

Close

Editorial Notes

  • Published Case Name:

    Gurdler v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Gurdler v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 213

  • Court:

    QIRC

  • Judge(s):

    Caddie IC

  • Date:

    30 Aug 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
Attorney-General v Wood [2023] QSC 78
2 citations
Jump To
Cite 1 - [2023] QSC 78
Cite 2 - [2023] QSC 78
Blatch v Archer (1774) 1 Cowp 63
2 citations
Jump To
Cite 1 - (1774) 1 Cowp 63
Cite 2 - (1774) 1 Cowp 63
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Briginshaw v Briginshaw (1938) HCA 34
3 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Cite 3 - (1938) HCA 34
British Railways Board v Herrington [1972] AC 877
2 citations
Jump To
Cite 1 - [1972] AC 877
Cite 2 - [1972] AC 877
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Coutts v Close [2014] FCA 19
2 citations
Jump To
Cite 1 - [2014] FCA 19
Cite 2 - [2014] FCA 19
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
2 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Ebner v Official Trustee in Bankruptcy (2000) HCA 63
1 citation
Jump To
Cite 1 - (2000) HCA 63
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Hail Creek Coal Pty Ltd v Construction, Forestry, Mining & Energy Union (2004) 143 IR 354
2 citations
Jump To
Cite 1 - (2004) 143 IR 354
Cite 2 - (2004) 143 IR 354
Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162
3 citations
Jump To
Cite 1 - [2022] QIRC 162
Cite 2 - [2022] QIRC 162
Cite 3 - [2022] QIRC 162
In re H (Minors) (Sexual Abuse: Standard of Proof) [1996] AC 563
2 citations
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Cite 1 - [1996] AC 563
Cite 2 - [1996] AC 563
Ivers v McCubbin [2004] QSC 342
2 citations
Jump To
Cite 1 - [2004] QSC 342
Cite 2 - [2004] QSC 342
King v Workers' Compensation Regulator [2019] QIRC 134
2 citations
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Cite 1 - [2019] QIRC 134
Cite 2 - [2019] QIRC 134
Kioa v West (1985) 159 C.L.R 550
1 citation
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Cite 1 - (1985) 159 C.L.R 550
Maher v Isaac Regional Council [2020] QIRC 191
2 citations
Jump To
Cite 1 - [2020] QIRC 191
Cite 2 - [2020] QIRC 191
Manttan v State of Queensland (Department of Education) [2022] QIRC 238
2 citations
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Cite 1 - [2022] QIRC 238
Cite 2 - [2022] QIRC 238
McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308
2 citations
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Cite 1 - [2023] QIRC 308
Cite 2 - [2023] QIRC 308
Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326
2 citations
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Cite 1 - (2015) 256 CLR 326
Cite 2 - (2015) 256 CLR 326
Minister for Immigration and Border Protection v WZARH [2015] HCA 40
2 citations
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Cite 1 - [2015] HCA 40
Cite 2 - [2015] HCA 40
Minister for Immigration and Multicultural Affairs v Jia Legeng [2001] HCA 17
2 citations
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Cite 1 - [2001] HCA 17
Cite 2 - [2001] HCA 17
Minister for Immigration v Jia Legeng (2001) 205 CLR 507
2 citations
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Cite 1 - (2001) 205 CLR 507
Cite 2 - (2001) 205 CLR 507
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
2 citations
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Cite 1 - [2023] QIRC 283
Cite 2 - [2023] QIRC 283
Perry v State of Queensland (Queensland Health) [2023] QIRC 348
1 citation
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Cite 1 - [2023] QIRC 348
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs [2023] HCA 15
2 citations
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Cite 1 - [2023] HCA 15
Cite 2 - [2023] HCA 15
QYFM v Minister for Immigration, Citizenship, Migrant Services and Multicultural Affairs (2023) 97 ALJR 419
2 citations
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Cite 1 - (2023) 97 ALJR 419
Cite 2 - (2023) 97 ALJR 419
Regan v State of Queensland (Department of Education) [2022] QIRC 335
2 citations
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Cite 1 - [2022] QIRC 335
Cite 2 - [2022] QIRC 335
Schaale v Hoechst Australia Ltd (1993) 47 IR 249
2 citations
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Cite 1 - (1993) 47 IR 249
Cite 2 - (1993) 47 IR 249
Vega Vega v Hoyle [2015] QSC 111
2 citations
Jump To
Cite 1 - [2015] QSC 111
Cite 2 - [2015] QSC 111

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 2872 citations
1

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