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  4. Horton v State of Queensland (Department of Justice and Attorney-General) - [2024] QIRC 278

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Horton v State of Queensland (Department of Justice and Attorney-General)[2024] QIRC 278

Horton v State of Queensland (Department of Justice and Attorney-General)[2024] QIRC 278

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Horton v State of Queensland (Department of Justice and Attorney-General) [2024] QIRC 278

PARTIES:

Horton, Jan

(Appellant)

v

State of Queensland (Department of Justice and Attorney-General)

(Respondent)

CASE NO.:

PSA/2023/192

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

27 November 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) –

  1. Allegations 1, 2, 3, and 4 are substantiated and associated disciplinary findings are confirmed;
  1. Allegation 5 is not substantiated and the disciplinary finding relating to this allegation is set aside.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a decision pursuant to s 131(1)(c) of the Public Sector Act 2022 (Qld) – whether substantiation of allegations was fair and reasonable – whether disciplinary findings were fair and reasonable.

LEGISLATION AND OTHER INSTRUMENTS:

Anti-Discrimination Act 1991 (Qld)

Code of Conduct for the Queensland Public Service, cl 1, cl 3

Discipline Directive 05/23, cl 4, cl 5, cl 7

Discipline Directive 14/20, cl 4

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Positive Performance Management Directive 15/20

Public Sector Act 2022 (Qld), s 91, s 131, s 187

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Coleman v State of Queensland (Department of Education) [2020] QIRC 32

Goodall v State of Queensland [2018] QSC 319

Reasons for Decision

Introduction

  1. [1]
    Ms Jan Horton ('the Appellant') is employed by the State of Queensland (Department of Justice and Attorney-General) ('the Respondent') as a Court Services Officer (AO3) and Enforcement Officer, Supreme, District and Land Court Service, Brisbane.
  1. [2]
    By letter dated 24 February 2023, Ms Brigita Cunnington, Acting Deputy Director‑General, Justice Services, ('the decision maker') wrote to the Appellant asking her to show cause in relation to the following allegations –

…

I am in receipt of an investigation report prepared by the Ethical Standards Unit (ESU) dated 24 November 2022 (the Investigation Report) regarding your alleged conduct.

…

I am also in receipt of a number of emails sent by you over the period 2018 to 2022. Having carefully reviewed the emails, I am of the view you may be liable for disciplinary findings pursuant to s 187 of the [Public Sector Act 2022] in relation to a further two allegations…

You are now required to show cause as to why disciplinary findings should not be made against you in relation to the following allegations, as reframed by me, on the grounds as set out below.

…

ALLEGATION 1

On 24 April 2021, in the matter of … you failed to comply with the Police Action Plan completed by the Registrar, Kristine Gillespie, in response to a 'red alert' being advised by Police, and proceeded to attend the house at … and speak with a male occupant.

…

ALLEGATION 2 (Allegation 3 in the Investigation Report)

Between 13 April 2022 and 22 April 2022, you failed to comply with a lawful direction issued by Amanda O'Brien, Deputy Principal Registrar and Sheriff of Queensland not to perform any enforcement officer or bailiff duties on behalf of the Department whilst under alternate work arrangements by continuing to engage in arrangements for an eviction scheduled for 23 April 2022.

…

ALLEGATION 3 (Allegation 4 in the Investigation Report)

On an unknown date in January 2022, without authority, you released a copy of the Department's draft 'Mandatory Vaccination Requirements' policy to Cloe Read, Reporter, Brisbane Times.

…

ALLEGATION 4

On a number of occasions between 2018 and 2022, you sent inappropriate emails to your colleagues, as follows:

  1. On 5 November 2018, you sent an unprofessional and disrespectful email to Khamelia Adams, Team Leader (at the time) in which you made offensive and derogatory comments about the Department and your colleagues;
  2. On 21 October 2019, you sent an unprofessional and disrespectful email to Amanda O'Brien, A/Deputy Principal Registrar and Sheriff of Queensland (at the time);
  3. On 4 August 2020, you sent an unprofessional and disrespectful email to Ms Adams, Senior Registrar (at the time); and
  4. On 10 March 2022 and 17 March 2022, you sent unprofessional and disrespectful emails to Mr Darren Davies, Director, Strategy and Support, in which you made offensive and derogatory comments about the Department and its management team.

…

ALLEGATION 5

On 7 April 2021 and 27 October 2021, you sent inappropriate emails to a group of colleagues in which you made derogatory and offensive comments about the Department and its management team.

…

  1. [3]
    The Appellant provided a response to the show cause notice on 14 March 2023.
  1. [4]
    On 1 September 2023, the decision maker notified the Appellant of her determination in relation to disciplinary findings and proposed disciplinary action ('the decision').
  1. [5]
    The decision maker found that Allegations 1 and 5 were substantiated and determined pursuant to s 91(1)(h) of the Public Sector Act 2022 ('the PS Act') that the Appellant was liable for disciplinary action because she had contravened, without reasonable excuse, the Code of Conduct for the Queensland Public Service ('the Code of Conduct') in a way that was sufficiently serious to warrant disciplinary action.
  1. [6]
    The decision maker also found that Allegation 2 was substantiated and determined pursuant to s 91(1)(d) of the PS Act that the Appellant was liable for disciplinary action because she had contravened, without reasonable excuse, a direction given to her as a public sector employee by a responsible person.
  1. [7]
    The decision maker further found that Allegations 3 and 4 were substantiated and determined that pursuant to s 91(1)(b) of the PS Act that the Appellant was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the PS Act.
  1. [8]
    The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of termination of her employment. On 14 September 2023, the Appellant responded to the proposed disciplinary action.
  1. [9]
    On 26 September 2023, the Appellant filed an appeal notice appealing against a disciplinary decision dated 28 August 2023 pursuant to s 131(1)(c) of the PS Act.
  1. [10]
    The issue for determination is whether the disciplinary finding was fair and reasonable.

Legislative Framework

  1. [11]
    Section 91 of the PS Act provides the following grounds for discipline:

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—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. been guilty of misconduct; or
  1. been absent from duty without approved leave and without reasonable excuse; or
  1. contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  1. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  1. contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  1. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of—
  1. this Act, other than section 39 or 40; or
  1. another Act that applies to the employee in relation to the employee's employment; or
  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.
  1. To remove any doubt, it is declared that 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.
  1. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  1. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee's employment in the public sector

relevant standard of conduct —

  1. for a public sector employee, means—
  1. standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  1. for a public sector employee who is a fire service officer under the Fire Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

  1. [12]
    Clause 5.3 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector:
  1. 5.3Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.
  1. [13]
    Clause 7 of the Directive provides the requirements to commence a discipline process:
  1. 7.1Section 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.
  2. 7.2Where 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:
  1. the seriousness of the employee's personal conduct and/or work performance, and
  1. whether the matter should be resolved through management action instead, and
  1. 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
  1. 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
  1. whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
  1. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  1. whether further information is required to make a decision to commence a disciplinary process, and
  1. for a breach of 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. 7.3Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.

Appeal principles

  1. [14]
    The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [15]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the decision by the Respondent to substantiate the allegations and make the subsequent disciplinary findings were fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [16]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [17]
    In the appeal notice, the Appellant stated that she was appealing false allegations of misconduct being made against her.

Submissions

  1. [18]
    The Commission issued a Directions Order directing both parties to file submissions following receipt of the appeal notice. The Respondent sought leave to provide further submissions upon receipt of the Appellant's submissions in reply. The Appellant was also granted leave to provide further submissions.

Appellant's Submissions

  1. [19]
    In support of the Appeal, the Appellant submits the following in summary:
  1. The Appellant has over numerous years reported minor to serious issues of maladministration within enforcement to the Respondent and other external agencies.
  1. In retaliation, the Department has attempted to end the Appellant's duties and terminate her employment by condoning false allegations of misconduct made against the Appellant and beginning a formal disciplinary investigation into the Appellant.
  1. The Appellant has never received any management action in relation to the allegations. The decision by the Department to begin a disciplinary investigation is to achieve the more severe outcome of terminating the Appellant's employment.
  1. The Appellant made submissions that suggest the investigator and the decision maker were uninterested in the motives behind the staff who had made the complaints. The Appellant believes these complaints were vexatious and in breach of DJAG workplace policy and argued that there had been vexatious allegations made against her in the past. The Appellant argued that the decision maker and investigator did not investigate the origins of the allegations thoroughly in order to protect the Department. The Appellant referred to an appendix supporting her arguments about vexatious allegations and an appendix about the Department attempting to protect itself.
  1. The Appellant made submissions that the Department contravened cl 7.2 and cl 7.3 of the Directive and the Queensland Public Sector Commission's 'Managing workplace investigations guideline' by failing to engage in management action before beginning a disciplinary action. The Appellant referred to emails between other staff members as proof that management action was not considered, and her disciplinary process was treated differently to "start building a case" against her.
  1. The Appellant appears to submit that the investigator and decision maker were incapable of remaining impartial or objective during their investigation as they were senior managers for the Respondent. The Appellant argued that this likely resulted in undue influence in the Department's favour during the initial Ethical Standards Unit ('ESU') investigation and subsequent disciplinary proceedings. The Appellant referred to an appendix on background culture and an appendix on procedural fairness to support her allegations.
  1. The Appellant states that the investigator and the decision maker did not disclose their relationships with other managers/employees of the Department, including a 'friendly relationship' between the investigator and one of the staff who made allegations against the Appellant.
  1. The Appellant argues that the Department failed to comply with their duty to ensure that she was given sufficient details by refusing to provide the accusers' names to her. The Appellant believes that this was relevant evidence and its denial prevented her from responding to the case properly.
  1. The Appellant also argues that the ESU in their original investigation failed to comply with procedures requiring that allegations be dealt with in a timely manner.
  1. The Appellant argues that the investigator and the decision maker both prejudged her and the outcome for the investigation. The Appellant believes that the decision maker has been selective in the evidence she reviewed and gave more weight to the Department's evidence over the Appellant's show causes responses and expertise.
  1. The Appellant believes that the decision maker has upgraded the allegations to attract the penalty of termination while also ignoring or manipulating the Appellant's evidence explaining her actions. The Appellant also states that the decision maker has drawn incorrect inferences in her decision and attacked her character. The Appellant refers to another appendix in relation to her work experience.

Respondent's Submissions

  1. [20]
    The Respondent filed submissions which are summarised below –
  1. The Respondent argues that the Appellant does not appear to dispute that she engaged in the conduct that is the subject of the allegations against her. However, she does appear to dispute the characterisation of that conduct (i.e. that it was inappropriate). The Respondent submits that the Appellant's conduct that is the subject of the allegations was clearly inappropriate and there is no basis for the Appellant's claims that the allegations against her are 'vexatious' or that the current disciplinary process was commenced 'in retaliation' for any complaints she may have made to the Respondent or any external agency.
  1. The Respondent argues that the decision maker determined to commence the discipline process after carefully and independently considering all the relevant material and evidence, and based on her view that the allegations against the Appellant were sufficiently serious to warrant disciplinary action. As set out in the Second Show Cause Notice issued on 1 September 2023 ('the SSCN'), the decision maker had only limited knowledge of the Appellant's past complaints and no involvement in managing or responding to them.
  1. The evidence in relation to the allegations against the Appellant is entire documentary. The Appellant does not claim that any of that evidence has been fabricated, or otherwise dispute the factual basis for the allegations against her (although she does dispute the characterisation of her alleged conduct in that she submits that it was not inappropriate). There is therefore no basis for the Appellant's claim that the allegations against her are "vexatious".
  1. The Respondent argues that the Appellant makes a large number of claims about the employees who reported her conduct to the ESU, including that they act out of 'revenge' or 'spite'. The Respondent disputes these claims. In any event, where the Appellant does not dispute the factual basis for the allegations against her, the motivations of the complainants do not have any bearing on whether the disciplinary findings against her are fair and reasonable.
  1. The Respondent disputes the Appellant's assertion that Ms Adams, Senior Registrar, Court of Appeal & Adjudications, Supreme, District and Land Courts Service, had previously made "vexatious allegations" against her or engaged in "wage theft".
  1. The Respondent also disputes the Appellant's assertion that the email from Ms O'Brien, Sheriff of Queensland, to Ms Adams dated 29 July 2020 suggests that the outcome of the ESU investigation or disciplinary process was "pre‑determined". The email simply affirmed that Ms Adams had done the right thing in reporting suspected wrongdoing to the ESU.
  1. The Respondent argues that the Appellant has been afforded procedural fairness at each stage of the investigation and discipline process. The Appellant was provided with sufficient information to respond to the allegations against her. The Respondent disputes her assertion that she needed to know the identities of the complainants in order to answer the allegations against her. The Appellant was able to provide a comprehensive response to the allegations put to her during the investigation process. The Appellant has been provided with all documents and evidence relied upon by the decision maker.
  1. The Respondent disputes the Appellant's assertion that the ESU Investigation was not impartial. The departmental employees who prepared the Investigation Report had no actual, potential, or perceived conflict of interest in relation to the matter.
  1. In her submissions, the Appellant makes a number of allegations against the investigator. The Respondent disputes these allegations. In any event, while the investigator authorised the investigation of the allegations against the Appellant, she did not conduct the investigation herself. For completeness, the Respondent denies that the investigator and staff member have anything more than a professional working relationship. The emails to which the Appellant refers in her submissions are evidence of nothing more than the type of professional, collegial interactions that one might expect between senior managers in an organisation.
  1. The Respondent denies the Appellant's assertion that the decision maker prejudged the matter. As set out in the SSCN, the decision maker gave careful consideration to all material relevant to the allegations against the Appellant, including her responses, and made findings based on her independent review of the evidence and other material before her, rather than relying on the analysis or conclusions of the ESU investigation. The fact that the decision maker did not accept certain parts of the submissions made in the Appellant's responses does not mean that she "ignored" them or acted in a biased manner.
  1. The Respondent argues that the Appellant appears to suggest that the decision maker's decision not to make a finding against the Appellant in relation to one aspect of her alleged conduct that was the subject of Allegation 1 is evidence of bias on the part of the decision maker. On the contrary, this demonstrates the decision maker carefully and independently considered the material before her and declined to make findings where she felt they were not supported by that material.
  1. The Respondent disputes the Appellant's claim that the decision maker "asked the ESU" to "find more allegations" against the Appellant or made attempts to "bulk up" the allegations. As set out in the SSCN, the decision maker determined to commence a disciplinary process in respect of the Appellant's conduct after it was brought to her attention in early 2023. She asked the Appellant to show cause in relation to her alleged conduct that was the subject of Allegations 4 and 5 because she considered the alleged conduct to be concerning.
  1. The Respondent acknowledges that the ESU investigation into the Appellant's conduct was not commenced until approximately one year after receipt of concerns about the Appellant's conduct that was the subject of Allegation 1. The ESU investigation was commenced following preliminary enquiries into the Appellant's alleged conduct which also led to the identification of a further allegation. These preliminary enquiries were necessary, and the Respondent submits the investigation was not unreasonably delayed in the circumstances.
  1. The Respondent also argues that the Appellant has not been disadvantaged by the length of time between the Respondent being notified of the allegations against her and the commencement of the ESU investigation. The Appellant was able to provide comprehensive responses to the allegations against her during the investigation and the discipline process. At no point in those responses did the Appellant assert that she was unable to recall events or matters relevant to the allegations against her.
  1. The Respondent provides the following submissions in response to the Appellant's assertion that the Respondent should have taken management action against her rather than commencing a disciplinary process.
  1. The decision maker gave due consideration to whether the Appellant's conduct could be appropriately addressed via management action but ultimately determined to commence a disciplinary process. The Respondent submits this was fair and reasonable where:
  1. the nature and seriousness of the allegations against the Appellant meant that they could most appropriately be addressed via a disciplinary process;
  2. viewed as a whole, the Appellant's conduct is suggestive of a pattern of inappropriate behaviour whereby the Appellant was alleged to have wilfully disregarded Departmental policies, procedures, directions, and reminders over a number of years; and
  3. in respect of the Appellant's conduct that was the subject of Allegations 4 and 5, the Appellant had been reminded about her obligations to communicate respectfully and professionally on 4 August 2020 and 17 March 2022 and her inappropriate behaviour persisted regardless. On this basis, it was open to the decision maker to conclude that management action would be unlikely to prevent the conduct reoccurring.
  1. The Appellant's suggestion that she was 'never previously informed that the emails [that were the subjects of Allegations 4 and 5] were emails of misconduct' is inaccurate. On multiple occasions, the Appellant had been advised that her emails were unprofessional and inappropriate and/or reminded of her obligations to communicate professionally and respectfully in the workplace including on 4 August 2020 (in relation to the email that was the subject of Allegation 4(c)), 15 February 2021 (in relation to an email not the subject of the current discipline process), and 16 March 2022 (in relation to one of the emails the subject of Allegation 4(d)).
  1. The Respondent was not required to comply with the requirements of the Public Sector Commission's Positive Performance Management Directive where the allegations against the Appellant relate to her inappropriate conduct rather than issues relating to her performance.

Appellant's Submissions in Reply

  1. [21]
    The Appellant's filed submissions in reply which are summarised below –
  1. The Appellant argues that the Department behaved recklessly by breaching legislative requirements and DJAG procedures to ensure all public service employees are treated with equal rights and to engage in management action before and during any disciplinary action taken against them. The Appellant argues that in paragraphs (b) and (p) of the above summary of the Respondent's submissions the Respondent agrees that this right was denied to the Appellant. The Appellant submits that this enabled the Department to orchestrate a disciplinary process against the Appellant with no evidentiary basis for denying management intervention.
  1. The Appellant states that she has provided sufficient evidence to show that her actions in holding the Department accountable for acts of maladministration and serious misconduct within enforcement have raised elements of retaliative punishment against her.
  1. The Appellant argues that the Department's ethos enabled the decision makers to accept false and vexatious allegations made against the Appellant to legitimise their disciplinary decisions. The Appellant further argues that evidence suggests that as far back as 2020, the ESU and enforcement managers already had a plan in operation to remove the Appellant from her employment.
  1. In paragraphs (h) and (i) of the above summary of the Respondent's submissions, attempts are made to distance the investigator from this impartial investigation of the Appellant.
  1. The Appellant argues that to date, no evidence has been provided by the Department to show that the Appellant has participated in misconduct, either unknowingly, intentionally, or recklessly.
  1. In response to the Respondent's submissions, summarised above in paragraph (m), the Appellant argues that the ESU did not consider the nature of Allegation 1 to be serious enough to address until one year later. As the matter resolved on its own as a one-off occurrence, it should have been dismissed. Despite this, the decision maker wants the harsh and unjust penalty of termination for this allegation.
  1. The Appellant further argues that the decision maker found that the ESU Allegation 2 (claim form) was not misconduct, but she cannot bring herself to declare that Allegation 2 was a false allegation of misconduct made by Ms Kristine Gillespie.
  1. The Appellant is not the only enforcement officer who has spoken to a person on a red alert service, amended claim forms, or sent emails about enforcement matters which management may not like (there is not numerous emails of misconduct).
  1. The Appellant submits that the disciplinary action is meant to send a clear message to other enforcement officers who want to raise issue with enforcement maladministration that they will be disciplined and/or terminated for any challenges made to the Department.
  1. The Appellant argues that the equity of this decision is far from fair or impartial, and it involves evidence of victimisation against the Appellant. The Appellant submits that the Queensland Human Rights Commission ('QHRC') agrees with her. To discipline the Appellant for both roles, and to ignore the Appellant's long work history completed to a high standard, wherein there are no allegations against the Appellant's major administration role, reveals the Department's intentions. The Appellant submits that there is no logical sense as to why the Appellant would act with misconduct while the Appellant was holding the Department accountable for its misconduct.

Respondent's Further Submissions

  1. [22]
    The Respondent filed further submissions which are summarised below –
  1. The Respondent refutes the Appellant's assertion that there is any legislative requirement or Departmental procedure that requires the Department to engage in management action "before or during any disciplinary action". Under the Public Service Commission's Discipline Directive 14/20 (which was in force at the time that the discipline process was commenced) the decision maker was required to consider whether the Appellant's alleged conduct could appropriately be addressed via management action prior to commencing any disciplinary process. For the reasons outlined in the Respondent's submissions, summarised above at paragraph (p), it was fair and reasonable for the decision maker to determine that the Appellant's alleged conduct could not appropriately be addressed by way of management action.
  1. The Respondent refutes the Appellant's assertion that her conduct that was the subject of Allegation 1 was a "one off occurrence". The Appellant's conduct that was the subject of the allegations against her (including Allegation 1) is suggestive of a pattern of behaviour whereby the Appellant has wilfully disregarded Departmental policies, procedures, directions, and reminders over a number of years.
  1. The Respondent denies the Appellant's claim that the disciplinary findings against her are intended to send a "clear message" to other enforcement officers. The disciplinary process, and all findings against Ms Horton, are confidential and therefore cannot possibly serve the purpose alleged by the Appellant.
  1. The Respondent denies the Appellant's claim that the QHRC (or any other body) has made any finding or determination that the Appellant has been subjected to "victimisation". This claim appears to relate to a complaint by the Appellant that was recently referred to this Commission.
  1. Finally, the Respondent refutes the Appellant's assertion that she has a "long work history completed to a high standard" in light of the decision maker's findings against her. While Allegations 1 and 2 relate to conduct which occurred while Ms Horton was performing duties in her capacity as an enforcement officer, Allegations 3, 4, and 5 relate to her employment with the Department more generally.

Appellant's Further Submissions in Reply

  1. [23]
    The Appellant filed further submissions in reply which are summarised below –
  1. The Appellant disputes the argument made in the Respondent's Further Submissions and summarised above in paragraph (a) about non-legal requirements for disciplinary procedures. The Appellant argues that the Department is a party obliged to follow the PS Act and Discipline Directive 14/20, now superseded by the Directive, along with the Department's own disciplinary procedures. The Appellant drew attention to cl 4.1 and cl 4.2 of Directive 14/20 in support of this argument.
  1. The Appellant argues that she was advised in the letter of allegations issued on 23 June 2022 that management intervention was an option but was later advised by the decision maker that management action was not an option. The Appellant submits that the decision maker provided no evidence as to why it was decided that management action was not an option. The Appellant has not previously been subject to management action, so the decision maker cannot make that claim. The Appellant argues that the allegations against her are not allegations of serious misconduct.
  1. The Appellant submits that as the ESU did not consider the allegations to be severe enough to action urgently, the matter could have been resolved through management intervention. The Appellant believes that the Department's failure to follow the principles of the Directive and seek management action are indicative of the Department's overall intent to terminate her employment. The Appellant argues that the decision could not have been reasonable and fair nor impartial.
  1. The Appellant disputes the Respondent's characterisation of the five allegations as a pattern of behaviour with one collective punishment. The Appellant argues that the Respondent's description of "…a pattern of behaviour … wilfully disregarded departmental policies, procedures, directions and reminders over a number of years…" is the first time that she has been described this way. The Appellant reiterates that Allegation 1 is a "one off occurrence" as it has happened once in her service of over one thousand documents during her career, a quarter of which would have been a red alert service.
  1. The Appellant disputes the Respondent's statement that the disciplinary process is confidential on the basis that staff would be able to link her termination with her reporting of enforcement issues.
  1. The Appellant also disputes the Respondent's argument that QHRC had not made a finding about victimisation. The Appellant refers to the fact that the QHRC has referred the matter on to this Commission as evidence that reprisals have been taken against her.
  1. The Appellant argues against the Respondent's joining of her two independent roles into one collective role with one collective punishment. The Appellant maintains that all allegations against her have been in relation to her enforcement role, and that there have been no allegations from her administration managers in relation to her administrative role.

Consideration

  1. [24]
    This appeal requires a review of the decision maker's decision to determine if it was fair and reasonable in all of the circumstances.
  1. [25]
    The decision addressed a number of the Appellant's general submissions prior to considering each allegation. These submissions related to criticisms of the investigation and allegations of bias, allegations of motives for complainants, and an alleged time delay.
  1. [26]
    The decision maker considered the Appellant's submissions regarding the investigation and reasonably determined that the allegations of bias were unfounded. Notwithstanding this finding, the decision maker stated that they had carefully reviewed the information and evidence gathered during the course of the investigation and had not relied on the analysis or conclusion of the investigator but had reached their own conclusions based on an independent review of the evidence.
  1. [27]
    The Appellant raised allegations regarding the motives for complainants, alleging that people have colluded to make false allegations against her. The Appellant repeats these allegations in her written submissions, contending that the Department's disciplinary process is "in retaliation" to the Appellant's previous complaints to the Respondent and external agencies. It was reasonable for the decision maker to not accept these submissions, noting that the evidence in relation to the allegations is entirely documentary and the findings were made on the basis of cogent evidence regardless of the motivations of other employees. At no stage did the Appellant contend that the conduct did not occur as alleged, rather, she challenged the disciplinary findings. In these circumstances it was open to the decision maker to dismiss the allegations regarding motivations of other employees.
  1. [28]
    The decision maker acknowledged the time delay in the ESU investigation but determined that it was reasonable for the ESU to commence an investigation after conducting preliminary enquiries into the Appellant's alleged conduct which led to the identification of further allegations.
  1. [29]
    The decision maker's response to the Appellant's general submissions in the decision were fair and reasonable.

Allegation 1

On 24 April 2021, in the matter of … you failed to comply with the Police Action Plan completed by the Registrar, Kristine Gillespie, in response to a 'red alert' being advised by Police, and proceeded to attend the house at … and speak with a male occupant.

  1. [30]
    It is not in dispute that the Appellant received a warrant that was identifiable as a 'red alert' warrant and that the Appellant entered the property, engaged in a conversation with a person present at the residence, and handed that person the notice of eviction.
  1. [31]
    The Appellant submits that she did not receive a copy of the Action Plan provided by Ms Gillespie which stated that multiple persons of interest with multiple warnings resided at the property and that letterbox service of the warrant was authorised.
  1. [32]
    The decision maker considered an email from Ms Gillespie on 13 July 2021 which stated the following –

A red alert was received for this matter stating that "multiple persons of interest with multiple warnings reside at this address". A Police Action Plan was created by me and provided to you with the enforcement warrant. The Police Action Plan authorised you to serve the notice of eviction via the letterbox…

… Can you please also advise me why you did not comply with the police action plan devised, which only required letterbox service.

  1. [33]
    The decision maker also considered the Appellant's response to Ms Gillespie –

I did comply with the directions and placed the notice into the letterbox. As I was placing the notice in the letterbox, a male person … came to the door and he was not one of the people named on the red alert…

  1. [34]
    It was reasonable for the decision maker to determine that if it were the case that Ms Gillespie had failed to provide the Action Plan, the Appellant would have identified this in her response email.
  1. [35]
    It was open to the decision maker to determine that the Appellant's submission was self‑serving and reflected poorly on her credibility and that it was more likely than not that the Appellant received a copy of the Action Plan.
  1. [36]
    The decision maker also considered that even if the Appellant had not received the Action Plan, the Appellant, as a very experienced enforcement officer, ought to have known that she was not permitted to visit the property in the absence of a police officer and was only authorised to serve the warrant by placing it in the letterbox at the property in accordance cl 5.3 of the Department's procedure – Request Police Information Check and Allocate Warrant. This procedure provides that where a red alert has been received an enforcement officer "shall not proceed with the enforcement or visit the premises in the absence of at least one police officer and must comply with the plan devised".
  1. [37]
    The Appellant's submissions were considered by the decision maker, particularly those related to the Appellant's contention that she "assessed the situation" before entering the property and that the conversation lasted for "less than one minute". It was reasonable for the decision maker to determine that the Appellant could not have known whether the person was a person of interest with multiple warnings when the conversation commenced nor how long the conversation was going to last. It was reasonable for the decision maker to consider that the Appellant considered the procedure to be optional rather than one requiring strict compliance when undertaking enforcement duties.
  1. [38]
    The decision outlined the Department's duty to ensure in so far as is reasonably practicable the health and safety of its employees, noting that failure to follow the procedure may place enforcement officers and others at risk of significant injury or harm.
  1. [39]
    The decision maker determined that the Appellant demonstrated a reckless disregard at best for her obligations under the Action Plan and at worst knowingly and deliberately contravened those obligations. Where there is a clear guideline for serving warrants in the circumstances in which the Appellant found herself, it was open to the decision maker to determine that the Appellant had either recklessly disregarded her obligations or deliberately contravened those obligations.  Accordingly, it was fair and reasonable to determine that the Appellant contravened, without reasonable excuse, a standard of conduct, namely cl 1.5 and cl 3.1 of the Code of Conduct pursuant to s 91(1)(h) of the PS Act.

Allegation 2

Between 13 April 2022 and 22 April 2022, you failed to comply with  a lawful direction issued by Amanda O'Brien, Deputy Principal Registrar and Sheriff of Queensland not to perform any enforcement officer or bailiff duties on behalf of the Department whilst under alternate work arrangements by continuing to engage in arrangements for an eviction scheduled for 23 April 2022.

  1. [40]
    The letter from Ms O'Brien to the Appellant dated 4 April 2022 advised that the Appellant was to undertake alternate work arrangements on and from 5 April 2022 and advised the following –

you are not authorised to perform any enforcement officer or bailiff duties on behalf of the department under these interim work arrangements.

  1. [41]
    On 30 March 2022 an eviction was scheduled for 23 April 2022 at a property.
  1. [42]
    It was open to the decision maker to reject the Appellant's submission that she could not 'interpret' what to do in relation to enforcement work that was already in progress. The decision maker reasonably determined that if the Appellant was unsure of her obligations, then clarification could have been sought from the decision maker.
  1. [43]
    The decision maker considered an email exchange between the Appellant and a Mr Thompson, who was a creditor's agent, in relation to the eviction on 13 April 2022 in which the Appellant responded, "sounds good" to Mr Thompsons's statement, "I'll see you at the property on the morning of 23 April (8.30am)". I accept that the Appellant's actions in liaising with Mr Thompson and confirming approval of the eviction arrangements were enforcement officer duties.
  1. [44]
    The decision maker also considered an email sent to the Appellant from Ms Gillespie, A/Deputy Senior Registrar, on 22 April 2022 –

Thanks Jan. With the one scheduled tomorrow [23 April 2022], I was of the understanding that you were not currently authorised to perform enforcement officer duties. Are you intending on doing this one yourself or have you asked another EO to do it for you?

  1. [45]
    The Appellant provided the following response to Ms Gillespie's email –

This eviction was scheduled before the questionable action made by Amanda O'Brien which has been reported … I will be doing this eviction myself however, if I am not going to get paid I am not doing it.

  1. [46]
    The email exchanges outlined above and the failure of the Appellant to take any steps to advise the Registry that the eviction was proceeding and needed to be reallocated was sufficient evidence that the Appellant intended to engage in enforcement officer duties by attending the eviction on 23 April 2022.
  1. [47]
    The email from the Appellant to Ms Gillespie did not indicate that the Appellant was 'confused' as to her obligations, rather, it clearly stated that the Appellant would be attending the eviction unless she was not going to be paid for it.
  1. [48]
    The direction to undertake alternate work arrangements and the confirmation that the Appellant was not authorised to perform any enforcement officer of bailiff duties was unambiguous. It was reasonable for the decision maker to determine that the Appellant failed to comply with Ms O'Brien's direction not to perform any enforcement officer of bailiff duties and this conduct was insubordinate and inappropriate.
  1. [49]
    Following the substantiation of this allegation, it was fair and reasonable to determine that the Appellant had contravened, without reasonable excuse, a direction given as a public sector employee by a responsible person in accordance with s 91(1)(d) of the PS Act. 

Allegation 3

On an unknown date in January 2022, without authority, you released a copy of the Department's draft 'Mandatory Vaccination Requirements' policy to Cloe Read, Reporter, Brisbane Times.

  1. [50]
    The decision confirms that the Appellant does not deny providing a copy of the Consultation Draft to Cloe Read, Reporter, Brisbane Times.
  1. [51]
    The decision maker considered the Appellant's role as a Court Services Officer and Enforcement Officer for the Department and determined that in this role the Appellant was not required or authorised to provide the Consultation Draft to a member of the media.
  1. [52]
    The Consultation Draft was placed on the intranet to allow staff to ask questions and provide feedback about the draft in information sessions organised by the Department. In this context, it was open to the decision maker to determine that the Appellant's actions were not disclosing 'wrongdoing in the public sector' but were undertaken simply because the Appellant opposed the proposed policy.
  1. [53]
    It is implausible that the Appellant genuine believed that the Consultation Draft was evidence of 'wrongdoing' in the public sector. In circumstances where, as an employee of the Department, the Appellant has a duty to keep official information confidential and use such information only for authorised purposes, it was open to the decision maker to determine that the Appellant breached this duty in releasing the Consultation Draft to a member of the media.
  1. [54]
    The Appellant's action in breaching the employer's confidence by releasing official information without authorisation was serious. It was fair and reasonable for the decision maker to determine that the Appellant was guilty of misconduct, that is, inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the PS Act.

Allegation 4

On a number of occasions between 2018 and 2022, you sent inappropriate emails to your colleagues, as follows:

  1. On 5 November 2018, you sent an unprofessional and disrespectful email to Khamelia Adams, Team Leader (at the time) in which you made offensive and derogatory comments about the Department and your colleagues;
  2. On 21 October 2019, you sent an unprofessional and disrespectful email to Amanda O'Brien, A/Deputy Principal Registrar and Sheriff of Queensland (at the time);
  3. On 4 August 2020, you sent an unprofessional and disrespectful email to Ms Adams, Senior Registrar (at the time); and
  4. On 10 March 2022 and 17 March 2022, you sent unprofessional and disrespectful emails to Mr Darren Davies, Director, Strategy and Support, in which you made offensive and derogatory comments about the Department and its management team.
  1. [55]
    It is not in dispute that the Appellant sent the emails as outlined in the allegations.
  1. [56]
    The email in allegation 4(a) was sent by the Appellant in response to an email from Ms Adams in which she stated "Please do not engage or harass members of the enforcements team in regard to how they are discharging the duties of their role".
  1. [57]
    The Appellant's email was as follows –

Thanks for your response,

But dont accuse me of harassment, as I have not spoken to the Enforcement team for 7 days, and the only time I spoke to them, was to inform them that they have made a mistake in not legally providing us with documents we have a legal right to serve. You need to bring this up with the Attorney General, if what I told them was incorrect.

You forget that we are a part of the enforcement team, where is your support for team members who have basically had their rights and incomes illegally stolen from them. Look up what harassment is, merely pointing out a mistake by co-workers is not harassment. Don't let your hate of me, cloud the truth of what has been done.

Additionally, I would not see it as appropriate to communicate any queries with Linda [Gardner, Registrar Applications]. Remember this is the person who has taken it upon herself to "take money from our pocket" do you realise how serious this is.

  1. [58]
    The decision maker determined that the Appellant employed a confrontational and disrespectful tone throughout the email in issuing instructions and demands to Ms Adams which were inappropriate.
  1. [59]
    The decision maker also determined that the Appellant's comments regarding "illegally stolen" rights and incomes, and the suggestion that she would not communicate with Ms Gardner because she had "taken money from our pocket", were offensive and derogatory.
  1. [60]
    The Appellant submitted that the email was reflective of her frustration at Ms Adam's inexperience which was "apt to cause problems" but did not contend that the email was appropriate.
  1. [61]
    In the reasons for the decision, the decision maker stated that the Appellant was entitled to ask questions and raise concerns, however, this must be done in a professional and respectful manner.
  1. [62]
    I accept that the tone of the email was unprofessional and disrespectful, and the content of the email was offensive and derogatory. The Appellant's frustration does not negate the disrespectful nature of the communication. On this basis, it was open to the decision maker to substantiate this allegation.
  1. [63]
    The email referred to in allegation 4(b) was sent by the Appellant to Ms O'Brien, Acting Deputy Principal Registrar and Sheriff of Queensland. The email is as follows –

If it is not my turn, please do not allocate the next Arrest Warrant to myself … To give an EO consecutive Arrest Warrants would be unjust. For the past 13 years that I have been serving these, this has always been the practice. Who decided that this was to change? … To allocate another Arrest warrant to myself without others having had their turn, would be to act unethically and discriminatory towards myself. When the other E/Os have had their turn at enforcing an Arrest Warrant, then I will take my turn with Arrest Warrants as per normal.

  1. [64]
    The Appellant denies that the email was inappropriate, unprofessional, confrontational, or disrespectful.
  1. [65]
    The decision maker determined that the Appellant employed a confrontational and disrespectful tone which was inappropriate when communicating with her line manager.
  1. [66]
    The decision states that the Appellant is entitled to ask questions and raise concerns about the manner in which arrest warrants were allocated by the Registry, however, these concerns must be raised in a respectful and professional manner.
  1. [67]
    I accept that the tone of the Appellant's email is disrespectful in that it appears to unilaterally inform the Appellant's manager of the way in which the Appellant will work, stating that she will only enforce an Arrest Warrant when she approves of the process. That is not a respectful manner in which to communicate with a manager. Accordingly, it was open to the decision maker to substantiate the allegation.
  1. [68]
    The email referred to in allegation 4(c) was sent by the Appellant to Ms Adams, Senior Registrar and Sheriff of Queensland. In response to an email from Ms Adams advising that a component of a claim for payment made by the Appellant would not be paid while that claim was subject to further review, the Appellant sent the following email –

There was no additional time after the locksmith had left, the Locksmith, agent and myself all left at the same time. What are you talking about. This is illegal and I will take further action.

  1. [69]
    The decision maker determined that the Appellant employed a condescending, confrontational, and disrespectful tone throughout the email. The Appellant's statement "What are you talking about" was considered to imply that Ms Adams was being nonsensical in a manner that the decision maker considered inappropriate.
  1. [70]
    The decision maker determined that the statement that the Department was engaging in "illegal" behaviour had no reasonable basis.
  1. [71]
    The ability of the Appellant to ask questions and raise concerns was confirmed by the decision maker, noting that that this must occur in a professional and respectful manner.
  1. [72]
    If the Appellant was of the view that the review of her claim for payment was "illegal" then the basis upon which she formed such a view could have been outlined in a professional and courteous manner. This email reflects a disrespectful tone that is condescending and unnecessarily combative. Accordingly, it was open to the decision maker to substantiate this allegation.
  1. [73]
    Allegation 4(d) refers to emails sent by the Appellant to Mr Davies outlined below –

… the ATO informs me that whilst it can be timely, I should be hearing something from DJAG now. We need dates. Also E/Os have informed me that they are not prepared to accept a five year back payment. We want all of our unpaid superannuation not just five years.

…

The Audit exposed the error and management from Julie Steel down proceeded to cover it up … The lack of transparency and accountable as it has been hidden by management. Qld E/Os have been exploited by the Department and I believe it is time the Integrity commission is also informed. We need to be shown some respect and we want action now not in several years/

  1. [74]
    Mr Davies sent an email to the Appellant reminding her of the obligation under the Code of Conduct to be respectful in her correspondence with him. The Appellant responded to Mr Davies with the following email –

… I said that the audit report findings of 2019 were covered up, not this investigation. When the department refused to acknowledge the error and answer questions about the unpaid fees – what would you call this? It definitely was not transparency and accountability. I have sought information from a number of external sources as to the departments activities and they are of the same opinion … My conduct towards you and others has been respectful, provided me with evidence that I was not respectful to you. Where in the below email [a reference to the email above at [75]] has this been dis-respectful…

  1. [75]
    The decision maker determined that the demands to Mr Davies were confrontational, demanding, and disrespectful. Specifically, the decision maker determined that the Appellant's email suggested Ms Steel and other managers had acted unethically by intentionally and inappropriately concealing information about the findings of an audit conducted by the Department in 2019, asserted the Department had "exploited" certain employees, and implied the Department had not treated enforcement officers with respect.
  1. [76]
    The decision maker referred to previous advice from Ms Steel on 4 August 2020 to the Appellant about the unprofessional and inappropriate tone of her email outlined in allegation 4(c), specifically reminding the Appellant of her obligation to remain professional in communications in the workplace. On the basis of this advice, and the original email from Mr Davies, it was open to the decision maker to determine that the Appellant wilfully disregarded the reminder to communicate respectfully.
  1. [77]
    The Appellant's response that "asking questions cannot be considered disrespectful" was rejected by the decision maker. The decision maker reasonably determined that the statement "what would you call this?" was rhetorical rather than a genuine question. It was reasonable for the decision maker to consider that the manner in which the Appellant sought information in the email was disrespectful and inappropriate.
  1. [78]
    The decision maker determined that the emails sent as outlined in allegations 4(a) to 4(d) were inappropriate, disrespectful, and unprofessional, some of which contained offensive and/or derogatory comments about the Department and its management team.
  1. [79]
    After considering the content of the emails, I consider that the decision maker's decision to substantiate the Allegation 4 was fair and reasonable.
  1. [80]
    The decision maker's disciplinary finding in relation to Allegation 4 will be considered below.

Allegation 5

On 7 April 2021 and 27 October 2021, you sent inappropriate emails to a group of colleagues in which you made derogatory and offensive comments about the Department and its management team.

  1. [81]
    The Appellant did not deny sending the following emails to a group of bailiffs and enforcement officers –

7 April 2021

Good morning Bailiffs,

…

Yesterday, I received confirmation from our policy team that up until the audit of 2019, those in charge at DJAG had misinterpreted the UCPFees …

I tried to get this clarified by the Sheriff in 2019, but she would not answer my question. They have been keeping this a secret. Now we get a service fee every time we go to a premises. I leave you with this thought – how much money have you been underpaid over numerous years due to the incompetence of DJAG and those in charge.

27 October 2022

Good morning all,

I have an update for past and present Bailiffs/E/Os.

…

I also am still working on getting our unpaid service fees … You can see that we are very exploited and disrespected by the top managers in DJAG. If I want information from them they are reluctant to reveal anything. I have to go the Justice Minister to get things done…

  1. [82]
    The decision maker determined that the Appellant's email made a number of offensive and derogatory comments about the Department and/or its management team, including Ms O'Brien. Particularly, the email stated the Department, and its management team were incompetent and suggested senior managers within the Department had "exploited and disrespected" enforcement officers and had engaged in unethical conduct including intentionally concealing an alleged underpayment from the staff affected.
  1. [83]
    The decision maker determined that the comments were highly inflammatory and intended to foster conflict and disharmony in the workplace. In response to the Appellant's submission that the comments were not derogatory because they were "the truth", the decision maker determined the following –

If you genuinely held concerns about the conduct of senior managers within the Department, you were aware of the avenues through which you could appropriately raise your concerns. Regardless of whether your concerns were validly held, your conduct in making offensive and derogatory comments about the Department and its senior managers in emails to your colleagues was inappropriate and unprofessional. …

  1. [84]
    The decision maker considered that the Appellant's decision to maintain her claims that the Department and its senior managers are incompetent, unethical, exploitative, and disrespectful demonstrates a very concerning lack of trust and confidence in the Department.
  1. [85]
    The decision states that the Appellant sent the emails to a number of bailiffs and enforcement officers who were part of an email group with which the Appellant discussed matters relating to her employment with the Department. These emails were not sent to managers or supervisors.
  1. [86]
    I am not persuaded that a reasonable interpretation of the Appellant's two emails is that they contained derogatory and offensive comments, particularly in circumstances in which they were not sent to a particular manager. An employee stating to colleagues that they felt exploited and disrespected, and that a real or perceived entitlement was not paid due to 'incompetence' might be considered highly critical, however, to determine it to be derogatory and offensive is an overreach. Employees are allowed to communicate with each other about their working conditions and share information with colleagues about conditions of their employment, where such information is not confidential. If the sharing of this information becomes disruptive to the work environment or is deliberately misleading, management action may be taken to address the conduct, however, there is no evidence that this occurred in this matter. On the evidence provided, Allegation 5 should not have been substantiated.
  1. [87]
    In circumstances where I am not satisfied that Allegation 5 is substantiated, the disciplinary finding associated with this allegation is set aside.
  1. [88]
    The decision maker considered the Appellant's human rights and determined that any limitation on these rights is demonstrably justified because the public interest in ensuring that public servants do not breach departmental policies, procedures, and directions, release official information the media without authority, and communicate with and about their colleagues in an appropriate manner outweighs the limited potential impact on the Appellants human rights. This was a fair and reasonable determination.

Disciplinary findings

  1. [89]
    The decision maker determined that having substantiated Allegation 1, the Appellant contravened, without reasonable excuse, a standard of conduct applying to them, namely cl 1.5 and cl 3.1 of the Code of Conduct for the Queensland Public Service in a way that is sufficiently serious to warrant disciplinary action, pursuant to s 91(1)(h) of the PS Act. This disciplinary finding was open to the decision maker and was fair and reasonable on the basis of the substantiated conduct.
  1. [90]
    The decision maker determined that having substantiated Allegation 2, the Appellant is liable for disciplinary action on the basis that the Appellant contravened, without reasonable excuse, a direction given to the Appellant as a public sector employee by a responsible person pursuant to s 91(1)(d). This disciplinary finding was open to the decision maker and was fair and reasonable on the basis of the substantiated conduct.
  1. [91]
    The decision maker determined that having substantiated Allegation 3, the Appellant is guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the PS Act.
  1. [92]
    Other than the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct. In Coleman v State of Queensland (Department of Education),[5] Merrell DP outlined the following consideration of the term 'misconduct' –

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[6]

  1. [93]
    The Appellant's conduct in forwarding confidential information to the media without authorisation is an abuse of the privilege and confidence enjoyed by a public service employee. I am satisfied that this conduct was inappropriate and improper and accordingly it was open to the decision maker to determine that the Appellant was guilty of misconduct.
  1. [94]
    The decision maker determined that having substantiated Allegation 4, the Appellant is guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the PS Act. I am satisfied that the conduct substantiated in this allegation is a deliberate departure from accepted standards. It is not acceptable for employees to ignore the requirement to communicate respectfully with all other employees, including their managers. Whilst the Appellant may have been frustrated by 'management' in general, there were individuals on the receiving end of these belligerent emails. The conduct was inappropriate and improper, particularly given that two of the emails in question were sent after the Appellant had been reminded of her obligation to communicate respectfully and professionally. 
  1. [95]
    The decision maker determined that having substantiated Allegation 5, the Appellant contravened, without reasonable excuse, a standard of conduct applying to them, namely cl 1.5 and cl 3.1 of the Code of Conduct for the Queensland Public Service in a way that is sufficiently serious to warrant disciplinary action, pursuant to s 91(1)(h) of the PS Act. On the basis that I have found that this allegation should be set aside, this disciplinary finding is also set aside.

Other issues

  1. [96]
    The Appellant made submissions about broader matters unrelated to the allegations. I will consider these in turn below.
  1. [97]
    The Appellant submits that the Department's disciplinary process has been undertaken "in retaliation" to the Appellant's previous complaints to the Respondent and external agencies. The Appellant submits that complaints were vexatious, and the "origins" of the complaints were not investigated, annexing an appendix about past "vexatious allegations".  This decision does not relate to allegations made by the Appellant against other employees. If the Appellant is of the view that the ESU did not act appropriately regarding her complaints, there are other processes that can be pursued to review that decision. As outlined in this decision, the evidence in relation to the allegations is entirely documentary. Speculation as to the motivations of other employees does not displace the existence of cogent evidence supporting the substantiation of the allegations. The allegations were substantiated in a fair and reasonable decision, with the exception of Allegation 5. There is no dispute that the Appellant sent the emails upon which Allegation 5 was based, with my finding relating solely to the characterisation of the conduct. I do not consider this or any of the allegations to be vexatious in nature.
  1. [98]
    The Appellant submits that she has never received management action in relation to the allegations in breach of the Queensland Public Sector Commission's 'Managing workplace investigations guideline'. I note that on multiple occasions the Appellant was reminded to ensure that her emails were professional and courteous. It was open to the decision maker to determine that management action was not appropriate to address this conduct. In circumstances where the Appellant's conduct reflects a pattern of disregard for policies, procedures, and directions, it was fair and reasonable for the Department to commence a disciplinary process. The obligation to engage in management action in accordance with the Positive Performance Management Directive only arises in relation to matters of performance. In circumstances where the allegations related to inappropriate conduct, it was open to the Department to pursue a disciplinary process.
  1. [99]
    The Appellant contends that the investigator and decision maker were not impartial during the process as they were senior managers for the Department, annexing documents on "background culture" to her submissions. The Appellant submits that the investigator and decision maker did not disclose their relationships with other employees of the Department, particularly a "friendly relationship" between the investigator and one of the staff who made allegations against the Appellant. The Respondent submits that the employees who prepared the investigation report had no actual, potential, or perceived conflict of interest in relation to the matter. The investigator authorised the investigation of the allegations but did not conduct the investigation and the Respondent denies that the investigator and employee have anything more than a professional working relationship.
  1. [100]
    I have read the emails referred to by the Appellant and am not persuaded that they are evidence of a lack of impartiality. The emails reflect a tone relatively common amongst standard communication between employees.
  1. [101]
    Despite submitting that one of the employees who made allegations against the Appellant had a friendly relationship with the investigator, the Appellant makes a contradictory submission that the Department failed to provide sufficient details by refusing to provide the names of those who made the allegations. The Appellant was provided with procedural fairness and was able to provide a response to the allegations after receiving all the evidence relied upon by the decision maker. The manner in which the conduct became known to the Department, or the identity of employees who advised the Department of the conduct, is not relevant in circumstances where the evidence relied upon was documentary in nature. The views, opinions, or motivations of those who raised complaints is not relevant to a determination of whether the conduct occurred as a matter of fact.
  1. [102]
    The Appellant submits that the investigator and decision maker prejudged her in that the decision maker had been selective in the evidence reviewed and had given more weight to the Department's evidence than the Appellant's expertise and responses to the show cause notices. There is no evidence that the Appellant was pre‑judged, with the decision maker's findings reflecting a consideration of the material before her including the Appellant's response. It is not an indication of bias or pre‑judgment for a decision maker to determine that they do not accept submissions made by a party.
  1. [103]
    The Appellant submits that the decision maker has "upgraded" the allegations to allow for the penalty of termination whilst ignoring the Appellant's evidence explaining her actions, annexing a further appendix detailing her work experience. The Appellant's evidence was not ignored, with the decision detailing the decision maker's consideration of the Appellant's submissions. The decision on disciplinary action has not yet been made and is not the subject of this appeal, however, I note that termination of employment is an option for a whole range of disciplinary findings, not just misconduct.
  1. [104]
    The Appellant contends that she is not the only enforcement officer who has spoken to a person on a red alert service, amended claim forms, or sent emails about enforcement matters which management may not like. This may be true, but this does not reflect the entirety of the allegations. Regardless, each employee's conduct must comply with the Code of Conduct and where there has been a contravention, the employee may be subject to an individual disciplinary process. This is more likely when there has been a pattern of indifference or wilful defiance of the policies and procedures of the Department.
  1. [105]
    I accept the Respondent's submission that the Appellant's claim that the disciplinary findings are intended to send a message to other enforcement officer is misguided on the basis that all findings are confidential and cannot serve the purpose alleged by the Appellant.
  1. [106]
    The Appellant contends that the QHRC "agrees" with her that the decision involves evidence of victimisation against the Appellant. The evidence that reprisals have been taken against her is, according to the Appellant, the referral of her complaint to this Commission. This submission is entirely misguided. Matters are referred to the Commission from the QHRC without judgement as to the prospective merits of the claim. The only assessment conducted by the QHRC for a matter of this type is whether the allegation can be characterised as being capable of contravening the Anti-Discrimination Act if the facts in matter are proven. Any judgement as to the merits of a claim of victimisation is then made by this Commission after a formal legal process.
  1. [107]
    The Appellant submits that all allegations against her have been in relation to her enforcement role and no allegation have been made from her administration managers in relation to the administrative role. The purpose of such a submission is unclear, with employees of the State of Queensland subject to the Code of Conduct and PS Act regardless of their role.
  1. [108]
    In all of the circumstances, I am satisfied that the decision, with the exception of findings in relation to Allegation 5, was fair and reasonable.

Order

  1. [109]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) –

  1. Allegations 1, 2, 3, and 4 are substantiated and disciplinary findings are confirmed;
  1. Allegation 5 is not substantiated and the disciplinary finding relating to this allegation is set aside.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3] Goodall v State of Queensland & Anor [2018] QSC 319, 5.

[4] IR Act, s 562B(3).

[5] [2020] QIRC 032

[6] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 13 [62]

Close

Editorial Notes

  • Published Case Name:

    Horton v State of Queensland (Department of Justice and Attorney-General)

  • Shortened Case Name:

    Horton v State of Queensland (Department of Justice and Attorney-General)

  • MNC:

    [2024] QIRC 278

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    27 Nov 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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
Horton v State of Queensland (Department of Justice and Attorney General) [2025] QIRC 2062 citations
Horton v State of Queensland (Department of Justice and Attorney-General) [2025] ICQ 71 citation
Horton v State of Queensland (Department of Justice and Attorney-General) (No. 2) [2025] ICQ 132 citations
1

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