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  4. Nye v State of Queensland (Queensland Corrective Services) - [2024] QIRC 37

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Nye v State of Queensland (Queensland Corrective Services)[2024] QIRC 37

Nye v State of Queensland (Queensland Corrective Services)[2024] QIRC 37

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Nye v State of Queensland (Queensland Corrective Services) [2024] QIRC 37

PARTIES:

Nye, Gerard

(Appellant)

v

State of Queensland (Queensland Corrective Services)

(Respondent)

CASE NO:

PSA/2023/216

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

14 February 2024

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

  1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and the matter is returned to the decision maker with a copy of the decision on appeal with a direction that the decision-maker provide reasons to explain the findings regarding grounds for discipline for Allegations 2, 3 and 5.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant is employed by the respondent as a Correctional Manager at Capricornia Correctional Centre –  appeal against a disciplinary finding decision – findings of misconduct and breaches of the code of conduct – allegations substantiated – insufficient reasons given to explain findings of misconduct – decision set aside and returned to the decision-maker with a copy of the decision – direction to provide reasons to explain decision on grounds for discipline

LEGISLATION AND OTHER INSTRUMENTS:

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

Public Sector Act 2022 (Qld) ss 91, 129, 131, 133

Public Service Commission Discipline Directive 14/20

Reasons for Decision

Introduction

  1. [1]
    Mr Gerard Nye (‘the Appellant’) is employed by the State of Queensland (Queensland Corrective Services) (‘the Respondent’) as a Correctional Manager at Capricornia Correctional Centre.
  1. [2]
    On 22 September 2021, Queensland Corrective Services (‘QCS’) Ethical Standards Group (‘ESG’) received a referral from General Manager Richard Butcher (‘GM Butcher’) containing complaints from four female colleagues against Mr Nye and Mr Nye’s response to those complaints.
  1. [3]
    The ESG conducted an investigation and finalised an investigation report into the matter. The investigator found the following allegation against Mr Nye was capable of being substantiated:

Allegation 1: Between January 2021 and September 2021 Correctional Manager Gerard Nye failed to treat Queensland Corrective Services employees [Employee A], [Employee B], [Employee C], [Employee D] and [Employee E] with courtesy and respect by behaving towards and conversing with them in an inappropriate manner.[1]

  1. [4]
    On 13 February 2023, Mr Gary McCahon, Deputy Commissioner Custodial Operations (‘the decision-maker’ or ‘DC McCahon’) wrote to Mr Nye suspending him from duty and inviting him to show cause in relation to the allegation set out above. The allegation was subsequently reframed into five separate allegations.
  1. [5]
    Mr Nye provided his response to the first show cause notice on 1 March 2023.
  1. [6]
    Mr Nye subsequently provided WorkCover with medical certificates and this resulted in the discipline process and suspension being placed in abeyance. This information is set out in the second show cause notice (see below from [9]).
  1. [7]
    On 16 October 2023, the decision-maker issued a second show cause notice to Mr Nye informing him of the disciplinary findings and proposed termination of his employment.
  1. [8]
    Mr Nye appeals the disciplinary finding decision of DC McCahon dated 16 October 2023.

The decision

  1. [9]
    The second show cause notice issued to Mr Nye on 16 October 2023 is 34 pages long and addresses five allegations. DC McCahon determines that the second sub-allegation of Allegation 1 is substantiated and that each of Allegations 2 to 5 are substantiated and makes a disciplinary finding in relation to each one.
  1. [10]
    The allegations are as follows:

Allegation 1: In or around 2021 at Capricornia Correctional Centre (Capricornia CC), you failed to treat your colleague, [Employee A], with courtesy and respect by:

  • failing to respect her personal boundaries;[2] and
  • sending an inappropriate email to her on 5 August 2021.

Allegation 2: Between around January and March 2021 at Capricornia CC, you failed to treat your colleague, [Employee C], with courtesy and respect by:

  • failing to respect her personal boundaries;
  • inappropriately rubbing her arm; and
  • making inappropriate sexual connotations towards her.

Allegation 3: In or around 2021 at Capricornia CC, you failed to treat your colleague, [Employee E], with courtesy and respect by:

  • making inappropriate sexual gestures towards her;
  • failing to respect her personal boundaries and shortly thereafter making an inappropriate comment to her; and
  • making inappropriate comments to her.

Allegation 4: In or around 2021 at Capricornia CC, you failed to treat your colleague, [Employee D], with courtesy and respect by:

  • failing to respect her personal boundaries; and
  • inappropriately tickling her hand.

Allegation 5: In or around 2021 at Capricornia CC, you made inappropriate comments during a staff briefing.

  1. [11]
    The decision-maker goes into some detail regarding the period of time which elapsed between Mr Nye responding to the first show cause notice on 27 February 2023 and the subsequent absence of Mr Nye from the workplace due to either illness or paid suspension.
  1. [12]
    The decision-maker then notes that while the first show cause notice was issued prior to the commencement of the Public Sector Act 2022 (Qld) (‘the PS Act’), the transitional provision makes clear that the new PS Act will apply to the discipline process.
  1. [13]
    Next, the decision-maker sets out a summary of Mr Nye’s submissions made in relation to the allegations against him in his show cause response.
  1. [14]
    DC McCahon notes additional submissions from Mr Nye providing background information regarding cultural issues at Capricornia CC, advice Mr Nye received from his union regarding the time period between the events complained of and the complaints being made, and an optometrist report stating that he needs to be within 40 centimetres of a computer screen.
  1. [15]
    The decision-maker considers Mr Nye’s submissions regarding the investigation, the outcome of the investigation and the standard to be applied by an investigator in determining whether each allegation was substantiated on the balance of probabilities. DC McCahon records Mr Nye’s submission that there has been damage caused by the ‘reckless abandonment of the procedures, breaching confidence and collating the allegations in an unregulated fashion’.
  1. [16]
    The decision-maker says that while Mr Nye has made submissions regarding his age, family situation and work history, these submissions will not be taken into account until such time as a decision is being made regarding what penalty, if any, to impose.
  1. [17]
    DC McCahon then goes on to set out his findings with regard to the five allegations from pages seven through to 28 of the letter. From pages 28 to 31, DC McCahon addresses the matters set out at [14] and [15] above.
  1. [18]
    The decision-maker explains that a disciplinary finding decision has been made, outlines Mr Nye’s appeal entitlements and requests that Mr Nye show cause as to the proposed disciplinary action. DC McCahon acknowledges that Mr Nye’s human rights may be limited by the disciplinary findings but concludes that the public interest in ensuring that Mr Nye complies with the Code of Conduct and other policies and procedures, and treats his co-workers with courtesy and respect, outweighs the impact on his human rights. The decision-maker concludes by reminding Mr Nye about the Employee Assistance Program (‘EAP’) and QCS digital support tools, and suggests that Mr Nye may also wish to seek assistance from his union.

Appeal principles

  1. [19]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [20]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [21]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [22]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. 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.
  1. [23]
    I am satisfied that the decision is one that may be appealed against and that the appeal was lodged within the required time.

Legislative framework

  1. [24]
    Mr Nye has filed a fair treatment appeal. Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  1. [25]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [26]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

  1. for a fair treatment decision— a public sector employee aggrieved by the decision.
  1. [27]
    Mr Nye was found liable by the Respondent for discipline under the PS Act. Specifically, findings of misconduct were made in relation to Allegations 2, 3, and 5 in accordance with s 91(1)(b) of the PS Act. Further, the Respondent determined that pursuant to s 91(1)(h) of the PS Act, Mr Nye breached the Code of Conduct in relation to Allegations 1 and 4. Those subsections relevantly provide:

91 Grounds 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. been guilty of misconduct; or

  …

  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [28]
    The Code of Conduct relevantly provides:

1.5  Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

  1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
  1. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  1. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  1. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
  1. comply with legislative and/or policy obligations to report employee criminal charges and convictions.

…

3.1  Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

  1. accept that the elected government has the right to determine policy and priorities
  1. be responsive to the government of the day and implement decisions and policies professionally and impartially
  1. comply with the laws of State, Australian and local governments
  1. comply with all relevant awards, certified agreements, subsidiary agreements, directives, whole-of-government policies and standards, and
  1. adhere to the policies, organisational values and organisational documents of our employing agency.[3]

Mr Nye’s reasons for appeal

  1. [29]
    Mr Nye sets out his reasons for appeal in a schedule to his appeal notice.
  1. [30]
    Mr Nye says that his employer has failed to consider his workplace and human rights and that the treatment of him during the investigation and decision-making process has been ‘wholly unreasonable and unfair’.
  1. [31]
    Mr Nye says that the investigation has breached the standards of the Queensland Investigation Guide 2018 on the premise of natural justice, duty of care and reasonable procedural fairness. Mr Nye further submits that the decision provides evidence of ‘confirmational bias, bias and irrationality’.
  1. [32]
    Mr Nye sets out a timeline regarding the first time the allegations were provided to him and the final date of the disciplinary findings decision and says ‘it cannot be considered reasonable that a workplace investigation takes over 2 years to complete’.
  1. [33]
    Mr Nye says that the investigation and the employer refused or failed to examine his submissions regarding the people who should have been interviewed by the investigator. Further, Mr Nye says that the investigation should have examined why all of the reports that gave rise to the allegations arrived at the same time and that his submission that the complaints were ‘fielded/orchestrated’ and the witnesses he said had noted ‘complicity’ by staff was not addressed. Given this, Mr Nye says that it is reasonable to suggest the investigation failed in not providing a balanced report, providing evidence of a confirmational bias. Mr Nye also notes that the investigator had all of the resources of QCS at his disposal, while Mr Nye had none.
  1. [34]
    Mr Nye notes that the Queensland Investigation Guide 2018 states that a support person should not be a witness but Mr Lyle Bellis collated witness emails; was a support person for Employee C; was a witness; was a support person to Employee A in the initial oral complaint; and Mr Bellis and Employee C were the only two witnesses who stated that they had not witnessed Mr Nye invading the space of males.
  1. [35]
    Mr Nye says that he named staff who had raised concerns with him that other staff were openly discussing the allegations made against him and were fielding or canvassing complaints from staff and these submissions were dismissed as hearsay.
  2. [36]
    Mr Nye also says that his employer was aware of his mental and emotional health as outlined in his WorkCover claim and did not fulfil a duty of care to him and offered him no realistic support.
  1. [37]
    Mr Nye says that the correct evidential standard has not been applied in that the investigator relies upon the totality of the complaints as evidence to substantiate all allegations.
  1. [38]
    Mr Nye says that he has a legitimate expectation as an employee of QCS that he will be treated fairly and reasonably and he expects a reasonable investigation process to be conducted and to receive a fair hearing without bias.
  1. [39]
    Mr Nye submits that no reasonable person would, when faced with the evidence as submitted, arrive at the outcome DC McCahon communicates in the show cause notice.
  1. [40]
    Mr Nye says that the show cause letter provides evidence that the decision-maker has relied upon information external to the reports.[4]
  1. [41]
    Mr Nye concludes that ‘the totality of the report infers a reasonable suspicion of bias and/or not demonstrating impartiality but irrationality and unreasonableness’.

Mr Nye’s submissions

  1. [42]
    Mr Nye filed submissions in support of his appeal on 30 November 2023.
  1. [43]
    Mr Nye repeats his contention that the procedural aspects of the investigation as found within Workplace investigations (Directive 17/20) and the Queensland Investigation Guide 2018 were not followed.
  1. [44]
    With regard to the allegations, Mr Nye states that Allegations 1 and 5 were reported in a reasonable timeframe and that from the outset, he admitted culpability. However, Mr Nye says that Allegations 2, 3 and 4 were raised in an unreasonable timeframe of some five to eight months following the events in question and that the allegations were substantiated on the basis of evidence which he says is ‘conjecture’.
  1. [45]
    Mr Nye says that ‘armed with this conjecture, the allegation has been elevated to include connotations of sexual inappropriateness or harassment’. Mr Nye submits that no ‘reasonable person, when armed with all the facts would import these connotations across all 5 allegations and if doing so was it unfair and unreasonable’.
  1. [46]
    My Nye says that the breach of a reasonable timeframe for investigation commencing to  its conclusion and the decision-maker’s delay in commencing the disciplinary process severely and materially disadvantaged his defence and rebuttal. Mr Nye says that as a result of the ‘deviation of the procedural aspect of the Directive 17/20 and the common law duty of care’ he was at a minimum disadvantaged and to a higher extent, suffered damage to his person, family and his reputation.
  1. [47]
    Mr Nye makes a ‘counterclaim’ of ‘staff collusion and staff breaching confidence’ by openly discussing his case and material and says that this has substantially affected his mental state when both the employer and investigator were on notice from his show cause letter.

Allegation 5

  1. [48]
    Mr Nye accepts full responsibility for his actions but argues that due to his self-reporting of the incident, the incident was ‘disposed of’ prior to being referred to ESG. Mr Nye says that while the decision-maker says in the decision ,‘I am informed that the discussion was in context to risk mitigation’, no reference is made to any document to support this statement.

Allegation 1

  1. [49]
    With regard to an inappropriate email sent on 5 August 2021 where Mr Nye said to Employee A, ‘if you have any worries or concerns or just want to chat please give me a call. Drunk or sober’, Mr Nye notes from the evidence that Employee A orally raised this issue twice with the Deputy General Manager (‘DGM’) before raising a written complaint.
  1. [50]
    Mr Nye submits that Employee A stated she had been sexually abused by a prisoner and that Mr Nye immediately informed the DGM of the issue upon receipt of that information.
  1. [51]
    Mr Nye submits that the email was sent by him to a junior member of staff as a genuine reconciliation with a ‘touch of light-hearted humour’. Mr Nye argues that the decision-maker and investigator failed to interview both the DGM and the General Manager (‘GM’) and Employee A’s spokesperson. Mr Nye says that Employee A’s spokesperson, Mr Gross, provided ‘antagonising’ comments which appear at odds with Mr Nye’s and the supervisors’ accounts. Mr Nye says the investigator has, in part, relied on Employee A’s import of Mr Gross’s conversation or opinion.
  1. [52]
    Mr Nye accepts that he did send the email and he has accepted the connotations that could be inferred from the email. However, Mr Nye refutes that imported sexual connotation and asks that the decision-maker review the decision ‘with the mitigation’ and refers to the original management response when the incident occurred and decision-makers were armed with all the relevant contemporaneous evidence.

Allegations 2, 3 and 4

  1. [53]
    Mr Nye strongly refutes Allegations 2, 3 and 4. Mr Nye concedes Allegation 2(c) and says that while he has ‘no cognition’ of the event, he suggests it is more than likely to have occurred. However, Mr Nye asks the decision-maker to take into consideration the prevailing ‘banter’ at the time and to not forget that this allegation was raised in March 2022, some 15 months after the alleged incident was said to have occurred.

Mr Nye being informed of the allegations and that an investigation would be taking place

  1. [54]
    Mr Nye says that on 20 August 2021, he was informed by a union delegate and a fellow manager of rumours circulating that female staff had raised concerns of Mr Nye’s inappropriate behaviour. Mr Nye says that on receipt of this information, he approached the GM at a ceremony in Rockhampton. On 7 September 2021, Mr Nye was formally informed of the complaints against him and was directed to provide a written response. Mr Nye says he was advised to keep the matter confidential but was never offered a support person. Mr Nye said that he informed the GM that staff were already talking about the allegations as discussed on 20 August 2021.
  1. [55]
    On 22 September 2021, Mr Nye says that he was informed by the GM that the incident had been referred to Ethical Standards and an investigation had commenced. Mr Nye says that at this point, he again raised concerns of staff collusion and a breach of confidence and says that he welcomed the Ethical Standards investigation to clear his name.
  1. [56]
    Mr Nye says that when he asked for the terms of reference for the investigation, the GM told him that he would record the conversation in his diary. Mr Nye says that shortly after this, Mr Nye broke down emotionally in front of both the DGM and GM and this is accepted in the employer’s WorkCover employer response. Mr Nye says the GM asked him who he thought was ‘orchestrating the incident’ as the GM acknowledged that ‘it did appear to be odd that all the allegations arrived at the same time’. Mr Nye says he was advised to ‘keep his head up’ or words to the effect of ‘carry on’ but that this was denied by the GM in the WorkCover employer response.
  1. [57]
    Mr Nye says that he was offered a seconded position within sentence management and then in compliance. However, Mr Nye says that he remained within the centre and no risk assessment was carried out or documented as the Queensland Investigation Guide 2018 provides.

Procedural fairness

  1. [58]
    Mr Nye points to Directive 17/20 and a range of other material which he says highlights the need for investigations to be undertaken in a timely way. Mr Nye also points to the conduct and performance excellence (‘CaPE’) guidelines regarding timing for investigation and decision-making regarding allegations.
  1. [59]
    Mr Nye asks why the investigation breached the benchmarking standards and the requirement of the directive to deal with matters in a timely manner. Mr Nye submits that breaching the standards damages the efficacy of the evidence and also harms the witnesses and the subject officer.
  1. [60]
    Mr Nye also complains about a lack of communication with him throughout the investigation process.

Delay in raising the complaints

  1. [61]
    Mr Nye submits that allegations 2, 3 and 4 all allegedly occurred between November 2020 and March 2021. Mr Nye says that the delay in raising the complaints meant that he was responding to them after a prolonged period of time and this significantly prejudiced his ability to cogently or definitively understand or answer the complaints. Mr Nye says that the delay was not fair and reasonable.
  1. [62]
    Despite the delay, Mr Nye says that he attempted to answer the questions posed and says it is unfair for adverse inferences to be drawn against him on the basis that he was unable to provide particulars of every allegation.

Direction to keep the matter confidential

  1. [63]
    Mr Nye says that the direction to not contact staff directly or indirectly with regard to the matter meant that he was essentially ‘gagged’ and not afforded the opportunity to seek evidence, mount a defence or rebut the allegations.
  1. [64]
    Mr Nye says that he raised matters which were not investigated and that no reason was provided to him as to why those matters would not be investigated.
  1. [65]
    Mr Nye says that the confidentiality requirements create a positive duty for the investigator to look into issues he raised such as: the timing of various allegations from months prior being made within seven days of each other; staff breaching the internal investigation/complaints process; staff openly discussing the matters; witnesses not being interviewed despite Mr Nye repeatedly asking for them to be interviewed; a new matter being included in the investigation and then added to Allegation 2.

Mr Nye says he raised a grievance regarding his concerns of staff complicity and breach of confidence prior to and during the investigation

  1. [66]
    Mr Nye says he raised a grievance by email and conversation with the GM and the investigator regarding staff conduct which would materially affect him and his defence.
  1. [67]
    However, Mr Nye says that he was ‘dissuaded’ from lodging a formal grievance by the investigator.

No contact officer appointed for Mr Nye

  1. [68]
    Mr Nye says that he was not afforded a contact officer as required by the Queensland Investigation Guide 2018. Mr Nye says that as a result, there was little or no communication, welfare checks or risk assessment in circumstances where he was in a very difficult and isolated environment for 18 months.

Systematic or management issues

  1. [69]
    Mr Nye notes that the investigation report states that systematic or management issues would be addressed separately to the report. Mr Nye asks if any systematic or management issues have been identified, would Mr Nye be privy to those findings which could procedurally have affected the case?

Common law obligations

  1. [70]
    With regard to Mr Nye’s oral complaint and emails that he had knowledge of staff openly discussing his case and that this was materially affecting his welfare and his integrity and that of his family, Mr Nye says that the Respondent had a duty of care and negligently breached that duty. Mr Nye says that the employer was put on notice when he emotionally broke down and this is acknowledged in his WorkCover claim employer’s response.

Support person should not be a witness

  1. [71]
    Mr Nye says that Mr Bellis was a support person and also a witness. Mr Nye asks that Mr Bellis’ statement be struck from the evidence.

Standard of proof and strength of evidence

  1. [72]
    With regard to Allegation 2(a) which Mr Nye says is the most serious of all the allegations, Mr Nye says that the decision-maker has not followed up his requests for two witnesses to give evidence. Mr Nye says that not affording him the statements of the two supervisors who were present provides evidence of procedural bias.
  1. [73]
    With regard to Allegations 3 and 4, Mr Nye says that these have ‘no substance or witnesses’. Mr Nye says that the decision-maker has drawn from the totality of the allegations which Mr Nye has stated throughout are untested and fall short of any standards of proof.
  1. [74]
    Mr Nye says that when he questioned the decision-maker regarding the allegations being made five to eight months after the actions complained of, the decision-maker has relied upon the power imbalance between Mr Nye and the complainants.  Mr Nye says that if power imbalance is a matter being considered, this can be applied to his assertion regarding being disinhibited or persuaded not to raise a grievance.
  1. [75]
    Mr Nye says that guidelines and union materials encourage complaints to be made within three months. Mr Nye says that the delay in bringing the complaints means that owing to the seriousness of the allegations ‘and the blurred historical information’, it must be acknowledged that the competence and accuracy of the information provided will have diminished over time.
  1. [76]
    Mr Nye says that the investigation report identified the case as a Category 2 CaPE however the decision-maker has preferred, without reason, to elevate the CaPE to Category 3 – termination.

Adverse action

  1. [77]
    Mr Nye suggests that the investigation and decision are unreasonable and marred by the matters he has raised and that this collectively provides inferences of adverse action by the employer.

Respondent’s submissions

  1. [78]
    Ultimately, the Respondent submits that Mr Nye’s appeal should be dismissed with the disciplinary findings confirmed. The Respondent says that the decision was fair and reasonable, and it was open to the decision-maker to make disciplinary findings on the available evidence.
  1. [79]
    The Respondent’s submissions provide a background to the matter, state the relevant legal principles, and describe its understanding of Mr Nye’s appeal grounds. The Respondent then addresses the decision-maker’s substantiation of the allegations and responds to Mr Nye’s submissions.

Standard of proof and strength of evidence

  1. [80]
    Firstly, the Respondent says that the decision-maker applied the relevant standard of proof in his consideration and application of the Briginshaw[5] principles. The Respondent says the decision-maker’s reasoning was ‘sound, considered and reasonably justified’.

Allegation 1

  1. [81]
    Turning to Allegation 1, the Respondent notes that the Appellant does not deny sending the relevant email to Employee A, but he denies that the email contained a sexual connotation.
  1. [82]
    However, the Respondent contends that Mr Nye failed to treat Employee A with courtesy and respect by sending an unprofessional and inappropriate email to a subordinate colleague after hours, on his personal mobile phone, in circumstances where Mr Nye had only spoken with Employee A once or twice previously, and with the words ‘… or just want to chat please give me a call. Any time drunk or sober’.
  1. [83]
    While Employee A found Mr Nye’s email ‘weird’, no finding was made of sexual harassment or the making of inappropriate sexual connotations. The discipline ground was that of a breach of the Code of Conduct, so the Respondent says Mr Nye’s objection is misguided and the finding should be upheld.

Allegation 2

  1. [84]
    Mr Nye ‘strongly refutes’ Allegation 2, but for Allegation 2(c) regarding his conduct involving a banana, where Mr Nye submits that a culture of ‘banter’ within the workplace is a mitigating factor.
  1. [85]
    The Respondent says Allegation 2 pertained to a complaint made by Employee C. It is alleged that Mr Nye failed to respect her personal boundaries, inappropriately rubbed her arm, and made inappropriate sexual connotations. The Respondent particularises the allegation as follows:
  1. That during a meeting with [Employee C] and Custodial Supervisors (CSs) Finegan, Lawson and Medlin, the Appellant pulled his chair towards [Employee C’s]  chair and spread his legs so that his legs were straddled on either side of [Employee C]. The Appellant leaned towards [Employee C] and made ‘slurping noises’ with a lollipop he had in his mouth. The Appellant offered the lollipop to [Employee C], to which she responded with words to the effect, ‘no thank you.’ This was set out in [Employee C’s] initial written complaint and confirmed at interview. CS Lawson corroborated that the Appellant slid alongside [Employee C] and had one of his legs on either side of her. The email from CS Medlin, provided by the Appellant as part of his response to the NTSC2 confirm that there was a ‘tub of chuppa lollies’ at the meeting, though is silent on the offering of the lollipop.
  2. That when on a phone call to CS Davis, the Appellant used his right arm to rub the top of [Employee C’s] left arm, near her bicep, several times. The Appellant admitted at interview to ‘touching’ [Employee C’s] hand. The decision-maker preferred the evidence of [Employee C] given the pattern of the Appellant failing to respect social boundaries, the overwhelming evidence that the Appellant made female staff uncomfortable and the inconsistency in the Appellant’s versions. The decision-maker’s reasoning was set out at paragraphs 45-48 of the NTSC2.
  1. That the Appellant pushed two bananas toward [Employee C], saying words to the effect of ‘would you like a banana’ and making eye contact. [Employee D] confirmed that she was witness to an incident involving a banana and a comment that was a sexual innuendo…
  1. [86]
    The Respondent notes that in his submissions, Mr Nye admits to the conduct involving the banana but says that it was ‘banter’. The Respondent refutes this submission and says that as a Correctional Manager, Mr Nye ought to have set an example for staff.
  1. [87]
    Moreover, the Respondent says that any delay in Employee C reporting these incidents does not render her allegations untruthful or the disciplinary process unfair. Rather, the Respondent accepts the explanation that a delay in reporting must be understood in the context of a power imbalance.
  1. [88]
    In addition, the Respondent says that regard was had to Mr Nye’s version of events. Mr Nye has subsequently denied the allegation after communicating at interview that he could not recall one of the incidents. Mr Nye was also afforded a right of reply by way of email at the time the complaints were raised. The Respondent therefore refutes that the decision-maker ‘benefited’ from Mr Nye’s indecisive responses.

Allegation 3

  1. [89]
    Next, the Respondent’s submissions address the decision-maker’s substantiation of Allegation 3 whereby it is alleged that Mr Nye failed to treat Employee E with courtesy and respect by making inappropriate sexual gestures towards her, failing to respect her personal boundaries, and making inappropriate comments towards her.
  1. [90]
    Mr Nye refuted the allegation at interview and in his first show cause notice, challenged Employee E’s evidence as she had resigned from the workplace and the Respondent did not provide an independent witness to corroborate the complaint.
  1. [91]
    The Respondent acknowledges that Employee E’s evidence is the only evidence supporting the allegation, but explains that the decision-maker preferred her version of events for the following reasons.
  1. [92]
    Firstly, there is an abundance of evidence about Mr Nye’s inappropriate workplace conduct, involving his failure to respect the boundaries of his female colleagues and making inappropriate comments.
  1. [93]
    Secondly, Employee E’s evidence about how Mr Nye’s conduct made her feel was consistent with the ways in which other female employees say Mr Nye has made them feel. Of particular relevance is Employee E’s evidence that Mr Nye made her feel ‘very uncomfortable’, she felt his conduct was ‘not appropriate’, and his behaviour was ‘one of the reasons why [she] left the centre’. Employee E said she did not raise the matter with Mr Nye due to ‘… a terrible power imbalance’.
  1. [94]
    Thirdly, this allegation was put to Mr Nye in the show cause letter in the following way:

… around 5pm on a Friday in or around 2021, you approached [Employee E] when she was washing her cup in the kitchen in the Administration Block at Capricornia CC when you stood in close proximity to [Employee E] during a conversation. Soon after, when [Employee E] was back at her desk, while leaning over the divider near [Employee E’s] desk, you said words to the effect, ‘are you married?’, which [Employee E] responded to you with words to the effect, ‘yes and very happily’.

  1. [95]
    The decision-maker did not accept Mr Nye’s evidence in response to the allegation. Mr Nye said at interview that he asked Employee E whether she had ‘kids and whatever family’ in the context of the two colleagues discussing Mr Nye’s family attending a regatta with Employee E’s family. Mr Nye says he had been discussing where his children could sail in the area, and Employee E suggested the Capricornia Yacht Club. Mr Nye says he asked Employee E whether she had children and a family as he would find it difficult to revert to his wife about the matter. Specifically, Mr Nye told the investigator ‘It would be a bit difficult to go back to my wife and say hey there’s this woman asking me about whatever…’. The decision-maker did not consider this to be a plausible explanation.

Allegation 4

  1. [96]
    The Respondent’s submissions then turn to Allegation 4, involving Mr Nye’s alleged failure to treat Employee D with courtesy and respect by not respecting her personal boundaries and inappropriately tickling her hand. Employee D gave evidence that Mr Nye pulled his chair close to her person, leaned in, and positioned himself within approximately 30 centimetres of her face.
  1. [97]
    The decision-maker did not accept Mr Nye’s explanation that this conduct was necessary due to his poor eyesight. The decision-maker determined that while poor eyesight might explain sitting close to a computer screen, it was not a reason to encroach on the personal space of a colleague.
  1. [98]
    Further, the decision-maker preferred the evidence of Employee D regarding Mr Nye tickling her hand. Mr Nye’s version of events ranged from strong denials of the conduct to a lack of recollection. That the decision-maker had already determined that Mr Nye had engaged in ‘unwanted touching’ towards Employee C served to corroborate this allegation.
  2. [99]
    Overall, the Respondent says that the decision-maker’s reasoning in substantiating the allegations was reasonable and justifiable. Therefore, the Respondent argues that the disciplinary findings ought to be upheld.

Other grounds of unfairness

  1. [100]
    The remainder of the Respondent’s submissions respond to other grounds of unfairness raised by Mr Nye including: collusion, failure to interview relevant witnesses, double jeopardy, duty of care and delay.

Collusion

  1. [101]
    The Respondent refutes Mr Nye’s submission that its staff have orchestrated the complaints against him. The decision-maker was satisfied that the investigation was fair and determined that no cogent evidence had been provided of collusion.
  1. [102]
    The Respondent acknowledges that some of the initial written complaints made reference to certain complainants coming forward to support other women, however the Respondent says this is not evidence of collusion. To the contrary, the Respondent says it is not unusual for the complaint of an employee to prompt other employees to make complaints of their own.
  1. [103]
    The Respondent highlights what it says to be a power imbalance between Mr Nye and the complainants and reiterates that some complainants expressed fears of coming forward or felt they would not be ‘heard’.
  1. [104]
    With that being said, the Respondent accepts that Mr Bellis’s involvement as a support person and a witness was not best practice. However, the decision-maker’s reliance on Mr Bellis’s evidence was simply in respect of ‘generalised statements that the Appellant would cross personal boundaries, not respect personal space and made women feel uncomfortable’. The evidence did not pertain to any of the particulars, except for Allegation 5, which is accepted by Mr Nye.
  1. [105]
    Therefore, the Respondent says there has been no practical injustice to Mr Nye.

Interviewing of relevant witnesses

  1. [106]
    The Respondent denies that Mr Nye was ‘gagged’ in being required to keep the discipline process confidential. The Respondent says this is standard practice and it is the role of the investigator and not the subject officer to speak to witnesses during an investigation.
  1. [107]
    As demonstrated in the investigation report, CS Finnegan had resigned and CS Medlin, CS Davis and CCO Gross were on long-term leave. It was not the case that the investigator simply refused to speak to relevant witnesses.
  2. [108]
    After Mr Nye raised his concerns about relevant witnesses not being interviewed in his first show cause notice, the Respondent requested that Mr Nye explain why those witnesses ought to be interviewed but Mr Nye did not respond.
  1. [109]
    On 20 October 2023, the Respondent confirmed it did not object to Mr Nye contacting these subject officers, and the Respondent notes that Mr Nye contacted both CS Finegan and CS Medlin.

Double jeopardy

  1. [110]
    In response to Mr Nye’s contention that the incident subject of Allegation 5 had been ‘disposed of’ prior to being referred to ESG, the Respondent says it is irrelevant whether GM Butcher had already chastised the Appellant as:
  • GM Butcher lacked the delegation to commence a discipline process;
  • Any conversation was therefore management action;
  • If the power to commence a discipline process was not exercised, then there would be no impediment to the decision-maker commencing a discipline process and making findings; and
  • Early intervention by managers, even where a disciplinary process is likely, is promoted by the Public Service Commission Discipline Directive 14/20.

Duty of care

  1. [111]
    The Respondent understands Mr Nye is aggrieved in that he believes that the Respondent breached its duty of care to him by failing to act honestly, fairly and reasonably. However, the Respondent submits the investigation was conducted in accordance with the principles of natural justice, confidentiality was maintained, the Respondent acted ethically and lawfully, and the process involved regular and transparent communications.
  1. [112]
    The Respondent points to the following:
  • After the investigator contacted Mr Nye on 11 March 2022 to arrange an interview, the subsequent direction letter issued to him referred to the EAP and invited Mr Nye to contact the investigator for further information;
  • Mr Nye and all witnesses were directed to keep the matter confidential;
  • Mr Nye was offered the opportunity to have a support person at the interview;
  • The investigator invited Mr Nye to provide any information or documentation he considered relevant by email to the investigator following the interview; and
  • When the investigation concluded on 16 June 2022, Mr Nye was again pointed to the EAP and invited to contact the ‘esgcomplaints’ email for updates.
  1. [113]
    The Respondent therefore does not accept it breached its duty of care to Mr Nye. It further notes WorkCover found the disciplinary process to constitute reasonable management action and the claim was instead accepted on the basis of  ‘overwork’.

Delay

  1. [114]
    The Respondent accepts and regrets the delay in the disciplinary process, but says this does not serve to make the disciplinary process unfair.
  1. [115]
    The investigation took seven months to finalise and there was a further period of time during which it collated and reviewed the material, and then reframed the allegation to ensure procedural fairness.
  1. [116]
    The Respondent says the evidence does not suggest a failure on its part to ensure Mr Nye received procedural fairness. It says Mr Nye has been on notice of the complaints from as early as 7 September 2021. On 22 September 2021, he was advised that the complaint had been referred to ESG, meaning he was in a position to accurately record his recollection of the events and provide an initial response to GM Butcher.

Orders sought

  1. [117]
    Overall, the Respondent submits that the decision-maker considered all of the evidence available to him in making the findings and appropriately analysed that evidence before drawing conclusions. The Respondent views the decision as fair and reasonable and submits that Mr Nye’s appeal should be dismissed with the disciplinary findings confirmed.

Mr Nye’s submissions in reply

  1. [118]
    Mr Nye’s submissions in reply address some of the allegations, and then delve into why he believes the discipline process was unfair.

Allegation 2

  1. [119]
    Firstly, Mr Nye addresses Allegation 2. Mr Nye believes he has exhausted all explanations in relation to allegations 2(b) and (c) in his earlier responses. He says, ‘Notwithstanding all allegations are in an “open room” setting in which there would have been many witnesses and/or persons present’.

Allegation 3

  1. [120]
    Mr Nye also submits there is no tangible evidence to support the substantiation of Allegation 3. In Mr Nye’s view, that the decision-maker prefers the complainant’s version of events due to the ‘abundance of other evidence’ is insufficient. Mr Nye takes issue with evidence from other allegations being wrapped into the decision-maker’s consideration of Allegation 3. He questions whether it is ‘reasonable, rational, or fair’ to rely on the entirety of the allegations to prove the case against him.

Allegation 4

  1. [121]
    Mr Nye repeats that he ‘has refuted all the allegations in totality’ and believes the decision-maker has again given inappropriate consideration to the subject matter of a variety of allegations when substantiating Allegation 4.

Unfairness in the discipline process

Standard of proof and strength of evidence

  1. [122]
    Mr Nye revisits the principles of a public sector appeal and the standard of proof required. Specifically, he responds to the Respondent’s assertion that public sector appeals are decided by reviewing the decision appealed against and determining whether the decision was fair and reasonable.[6] Mr Nye points to the Briginshaw principles and the Evidence Act 1995 (Qld) and says that ‘the dictum of learned judges suggests a higher standard of proof is required’. Further, Mr Nye says that while the Respondent says it applied Briginshaw, ‘there is no proof that the standards have been employed, given that allegations 3 and 4 use the information from all the allegation [sic] in totality to prove the case.’
  1. [123]
    Mr Nye relies on AW v State of Queensland (Department of Environment and Science),[7] White v Queensland[8] and Kumari v Metro Trains Melbourne[9] to argue that the Respondent ought to have applied a more rigorous approach to the investigation, requiring a ‘higher standard’ of proof given the seriousness of the allegations mounted against him.

Collusion

  1. [124]
    Mr Nye maintains that QCS staff have colluded against him, explaining that he provided ‘only a sample of the information’ he holds in his show cause response. He says that information he provided to the decision-maker including observations made by management have been ignored. In particular, Mr Nye says he made a contemporaneous note on 24 August 2021 of a conversation between himself and CS Medlin where ‘the supervisor stated “there’s a witch hunt and they want you out. Sexism and racism are the easiest way to get rid of someone. Greg continued and said he had cautioned the other supervisor of their actions”’.

Interviewing of relevant witnesses

  1. [125]
    Mr Nye repeats that he believes relevant witnesses were not interviewed. He says that while the investigation narrowed Allegation 2 to one meeting, there were numerous meetings with Employee C in the supervisor’s office where staff shared a computer screen or worked off an A3 spreadsheet.
  1. [126]
    At the meeting subject of the allegation, Mr Nye says Employee C, CS Lawson, CS Medlin and CS Finnigan were all present. However, Mr Nye questions why CS Medlin and CS Finnigan were not interviewed in circumstances where he felt it should have been obvious to the investigator to interview them. Mr Nye says he contacted these witnesses and suggested the investigator do the same. In Mr Nye’s submission, the ‘un-interviewed Supervisors’ would have provided evidence if they were called to do so, and their evidence might have illuminated ‘staff collusion, complicity, and breach of confidentiality’. He also says their evidence may be useful in disproving Employee C’s claim that she had spoken to a supervisor after the meeting subject of Allegation 2.
  1. [127]
    Mr Nye refutes the Respondent’s submission that the onus was on him to explain why these witnesses should have been interviewed as he was ‘on WorkCover’ at the time and when he returned to work, the Respondent did not remind him that they sought an explanation from him.
  1. [128]
    In failing to interview these relevant witnesses, Mr Nye says it can be inferred that the investigation was biased and unfair. He submits the decision-maker inappropriately relied upon the evidence of only some of the witnesses to substantiate the allegation.
  1. [129]
    Mr Nye also considers it unfair that witness evidence pertaining to discrete allegations was used to corroborate a pattern of behaviour and substantiate the allegations as a whole. In so doing, Mr Nye says the decision-maker has moulded the evidence to reach a pre-determined finding.
  1. [130]
    Mr Nye also says he finds it curious that CS Medlin was not interviewed, as Mr Nye believes CS Medlin’s evidence would have supported his submissions of ‘staff collusion and breach of confidentiality’. Instead of ascertaining the evidence as a whole by interviewing the relevant witnesses, Mr Nye says the Respondent relied only on information that he sucked a lolly to demonstrate that he behaved inappropriately. This, Mr Nye says, is further evidence of staff collusion.

Delay

  1. [131]
    Mr Nye’s submissions revisit a delay in the disciplinary process, which he says renders the decision not fair or reasonable. Whereas the Respondent relies on Jenkins v State of Queensland (Queensland Health)[10] for the proposition that a delay in the discipline process does not automatically render the process procedurally unfair, Mr Nye questions, ‘Is there a line in the sand in which the law will suggest it is too greater [sic] of a delay?’. Mr Nye estimates a delay of 24 months between the complaints and the show cause notice, and notes the case is almost 36 months old. Mr Nye says this has affected his ability to accurately rebut the allegations and provide a plausible defence.
  1. [132]
    In response to the Respondent’s submission that Mr Nye was made aware of the allegation in September 2021 and should have been able to accurately recollect the events at that stage, Mr Nye says the events in question had occurred five to eight months prior. He says he was then asked to provide a response some 12 to 14 months after the alleged incident dates.
  1. [133]
    Mr Nye says it was challenging for him to recall the events with ‘accuracy’ as he maintains he is an ‘innocent man’ and did not fully understand the allegations. He says there were also numerous similar meetings with the staff concerned both previous and subsequent to the complaint being made, leaving him with a ‘muddled quagmire of time’ and events.
  1. [134]
    In reply to the Respondent’s assertion that complainants may have come forward some time after the alleged incidents took place due to a power imbalance between them and Mr Nye in the workplace, Mr Nye says this is a superficial explanation.
  1. [135]
    Mr Nye says Employee C has over 29 years’ experience within a Human Resources setting and had frequently acted at the supervisor level. Mr Nye says Employee C had ‘unfettered access to the HR manager’. Mr Nye also says that CS Lawson is a very confident and outspoken supervisor. He says the conduct subject of the allegations did not occur, or if they did, were ‘an amalgam of many, many meetings over a protracted time’.
  1. [136]
    Mr Nye argues that the delays in the disciplinary process indicate that he has not been afforded natural justice and suggests that the process should have taken no more than three months.

Procedural fairness and natural justice

  1. [137]
    Mr Nye disputes that the Respondent engaged in regular and transparent communication with him. To the contrary, he says there was ‘almost no communication over the 24 months’. He says that the Respondent did not meet its duty of care to him by providing him with an email address and a phone number to contact.
  1. [138]
    Mr Nye says that when he contacted the investigator about a breach of confidentiality and collusion from staff, he says he received a ‘less than warm response and was dissuaded from making further enquiries’. He queries whether a ledger was kept of his calls with the investigator, as he says this would support his case.
  1. [139]
    Furthermore, Mr Nye says he had a reasonable expectation that the Respondent would comply with Directive 17/20 and departmental policies to ensure natural justice was afforded to him. However, Mr Nye observes that the process involved procedural irregularities which have impeded his case.
  1. [140]
    Mr Nye also submits that there are too many inconsistencies in the decision. He says that natural justice and procedural fairness necessitates that justice should not only be done, but seen to be done.
  1. [141]
    Mr Nye’s submissions then address decisions made ultra vires and the concepts of irrationality and unreasonableness. He cites a variety of cases to define these terms and concludes that the Commission should further examine the ‘unreasonableness and/or irrationality in the decision’. He says he considers the decision could be considered arbitrary, capricious, procedurally unfair and ultra vires. He alleges ‘adverse action’ by the Respondent.

Mitigating factors

  1. [142]
    Mr Nye reaffirms the following factors which he says are mitigating or should be taken into account:
  • He has been employed in the correctional field across many jurisdictions around the world for over 32 years with an unblemished career record;
  • He has been awarded a medal for 20 years’ exemplary service;
  • The proposed penalty of the termination of his employment would impact him detrimentally as he is married, has four children (one of whom is at school), and has a mortgage;
  • He is 58 years of age and being terminated would be a severe consequence given his age;
  • He has dyslexia, ADHD and an ocular inclusion in his left eye which impedes his vision and focus;
  • He has a disability in that he cannot read information from a spreadsheet or computer unless he is within 30 to 40 centimetres distance;
  • He has developed strategies to manage his disabilities and ‘When focusing on tasks he can become self-absorbed and possibly oblivious to others’;
  • His disabilities have ‘fuelled’ the complaints which he sees as harsh and discriminatory;
  • The complaints are suspicious and appear orchestrated, giving the impression that other staff are ‘trying to get rid of him’;
  • He is ‘an elderly person with a quirky sense of humour and disabilities’;
  • He has questioned the Respondent’s processes and practices; and
  • It is not ‘safe to prosecute this disciplinary process’ as his ‘defences have been eroded by time’.

Orders sought

  1. [143]
    Mr Nye seeks that the decision ought to be set aside and ‘a review of the procedural processes be carried out’.
  1. [144]
    He concludes with the following:

Hypothetical summary: What were you doing 8 months ago as I now want you to defend it? Several witnesses at the same time suggest you were inappropriate. How would you respond, admit, deny, question, or would you become anguished? Would your response be accurate and reliable? By the way you cannot talk to anyone. And to make it fair I’m not going to ask you any questions for another 6 months. You can respond to my decision which will [be] made in another 18 months. Sorry I didn’t hear your response in that you suggest it’s a stitch up. Regardless I’m going to terminate your employment owing to the totality of complaints.

Consideration

  1. [145]
    Mr Nye’s submissions cover a wide range of reasons for appeal. I will deal with each reason or category of concern Mr Nye has addressed.

Procedural fairness in the investigation

Length of time taken for matter to be investigated and progressed

  1. [146]
    The entire process has taken a considerable amount of time. While it is not ideal for a disciplinary process to take so long, one of the main concerns about delay is when there is a lengthy delay between the initial conduct and the opportunity for the subject officer to recall the events and provide a show cause response. It can also become problematic if witnesses are asked to provide accounts about matters that happened a considerable time ago.
  1. [147]
    Mr Nye references advice he has received from Together Queensland, Industrial Union of Employees that staff are encouraged to make complaints within a three month window of the incident. The decision-maker agreed with this but cited the ‘significant power imbalance’ between Mr Nye and a number of the complainants. DC McCahon also notes that all of the allegations regarding Mr Nye’s conduct referred to events which took place during 2021 and that the complaints were made during that year. It was open to DC McCahon to determine that any delay in complaining about the conduct was explained by the power imbalance between Mr Nye and the complainants. It was also open to DC McCahon to determine that the delay in making the complaints was not unreasonable in the circumstances and that the complaints were made within the same year as the alleged conduct.
  1. [148]
    I have considered the submissions regarding the amount of time between the alleged conduct, the complaints of the conduct and the commencement of the investigation and disciplinary process. In circumstances where the alleged conduct was said to have occurred from late 2020 until March 2021 and Mr Nye was formally told of the complaints in early September 2021 and provided with an opportunity to give an initial response, I do not think that Mr Nye has been ‘significantly prejudiced’ in his ability to understand or answer the complaints.
  1. [149]
    Mr Nye mentions several times in his submissions that the ‘guidelines’ and union materials encourage complaints to be made within three months. While this may be ideal, there is no reason why complaints cannot be made outside of this timeframe.
  1. [150]
    I disagree with Mr Nye’s submission that he was disadvantaged by the delay as it affected his capacity to provide responses. Mr Nye has been given several opportunities to provide his version of events. Mr Nye initially had a right of reply by email when the complaints were first brought to his attention. He was interviewed in relation to the matters. He then had an opportunity to provide a response to the show cause notice. This is not a situation where the first time Mr Nye has had an opportunity to consider the complaints and recall his own version of events was at the show cause stage many months following the investigation.
  1. [151]
    The Respondent accepts that there were delays in the process, including that the investigation took seven months to finalise and that there was then a process of collating and reviewing the material to ensure procedural fairness. It is always unfortunate for both the subject officer and complainants when investigation and discipline processes experience delays and occur over an extended period of time. However, it is counterproductive to rush these matters, especially when the allegations are serious and the grounds for discipline involve potential findings of misconduct.
  1. [152]
    I also note that the first show cause notice was issued on 13 February 2023 and that Mr Nye replied to it on 27 February 2023. As is set out in the decision letter, the disciplinary matter was placed in abeyance following receipt of Mr Nye’s WorkCover claim and the commencement of a period of absence from the workplace. It is important to note that any delay in the process over the course of 2023 was as a result of Mr Nye’s sick leave and that the disciplinary process was progressed following receipt of a work capacity certificate indicating that Mr Nye would be returning to work from 19 September 2023.

Mr Bellis as a support person and a witness

  1. [153]
    Mr Nye is concerned that one witness, Mr Bellis was also a support person for one of the complainants and was also responsible for collating the witness emails. I note Mr Nye’s request for Mr Bellis’s statement to be struck from the evidence.
  1. [154]
    The Respondent acknowledges that it is not best practice for a support person to also be a witness. I note the Respondent’s submissions that Mr Bellis’ evidence consisted of generalised statements about Mr Nye crossing personal boundaries, not respecting personal space and making women feel uncomfortable. I also note that the evidence of Mr Bellis which did address a specific allegation was with regard to Allegation 5 which is accepted by Mr Nye and was witnessed by many others.
  1. [155]
    I have reviewed Mr Bellis’s statement in the context of the investigation report and the decision of DC McCahon. I am not of the view that Mr Bellis’s statement has been a major factor in the decision-making or that it was afforded undue weight. For example, there is reference to Mr Bellis’ evidence given at interview at paragraph 33 of the decision letter in relation to the allegation that Mr Nye had failed to respect the personal boundaries of Employee C, however this is only one piece of information relied upon, and even without Mr Bellis’ interview statement, it seems to me that it was open to the decision-maker to find that aspect of Allegation 2 was substantiated on the basis of the reasons set out at paragraph 35(a)-(j) of the decision and to determine that this gave rise to a failure to treat Employee C with courtesy and respect.

Mr Nye suggested witnesses who weren’t interviewed

  1. [156]
    Mr Nye says that no explanation has been provided to him as to why his suggested witnesses were not interviewed. I note the Respondent’s submission that this was not a case where the investigator refused to speak to relevant witnesses. Three of Mr Nye’s suggested witnesses were on long-term leave and one had resigned. The decision-maker explained to Mr Nye in paragraph 129 of the decision that seven witnesses were interviewed in the investigation and that he was satisfied that a sufficiently comprehensive investigation was undertaken.
  1. [157]
    It also appears that the Respondent considered Mr Nye’s concerns regarding witnesses not being interviewed and invited him to provide information as to why those witnesses should be interviewed. The Respondent says that Mr Nye did not respond to that request and there is nothing in the materials to suggest that Mr Nye responded.
  1. [158]
    At paragraph 128 of the decision, the decision-maker directly addresses Mr Nye’s concern regarding certain witnesses not being interviewed. DC McCahon notes that two of the witnesses have ceased work with QCS due to extenuating circumstances and one is no longer an employee of the Queensland public sector and is living interstate. With regard to one particular witness nominated by Mr Nye, CS Davis, the decision-maker notes that CS Davis was not an eye-witness to the conduct involving rubbing Employee C’s arm as she was not physically present at the material time and was merely on the phone.  DC McCahon states that as such, any weight he would give to CS Davis’ evidence would be diminished.
  1. [159]
    After the second show cause notice was issued, it appears that the Respondent has informed Mr Nye that it had no objection to him contacting the witnesses he complains were not interviewed and that Mr Nye has made contact with two of these people.  While I have not considered Mr Nye’s response to the second show cause notice (attached to  his submissions in this appeal), I note that CS Finegan and CS Medlin have provided written statements. Consideration of these statements is a matter for the decision-maker in determining what disciplinary action, if any, will be imposed.

The requirement for confidentiality meant that Mr Nye was ‘gagged’ and could not seek evidence or mount a defence

  1. [160]
    It was not a matter for Mr Nye to interview witnesses and undertake his own investigation. If Mr Nye believed there was evidence available to help him to mount a defence, he should have raised those matters in his show cause response and in the investigation interview. It was then a matter for the investigator and decision-maker to take such matters into account.

Mr Nye says that the complaints were orchestrated

  1. [161]
    I understand that Mr Nye is suspicious that the matters subject of Allegations 2, 3 and 4 appear to have been reported at around the same time as each other although they related to matters which happened some weeks or months prior to the matters subject of Allegations 1 and 5.  Mr Nye is concerned that the complaints were canvassed and that there has been an orchestrated campaign against him. 
  1. [162]
    My understanding of the Respondent’s submissions regarding this matter is that the nature of the way the complaints were made is consistent with witnesses coming forward in circumstances where there is a power imbalance which has made people reluctant to complain for fear of repercussions. I have reviewed the emailed complaints and interview transcripts and it seems to me that there was a concern held by some of the complainants that there would be consequences for them if they complained about Mr Nye. Another theme that emerges from the interviews is that there was a concern that if the women did complain, nothing would be done to address their complaints. The Respondent acknowledges Mr Nye’s submission that the complaints were orchestrated but says it is not unusual for a complaint to prompt others to complain. I agree with the Respondent that in the absence of any evidence of collusion, complaints being made at around the same time does not undermine their truthfulness.
  1. [163]
    In his closing submissions in this appeal, Mr Nye submits that on 24 August 2021, he had a conversation with a colleague who allegedly told Mr Nye that there was a witch hunt and ‘they’ wanted Mr Nye out. Mr Nye said that CS Medlin also told him that sexist or racist conduct is ‘the easiest way to get rid of someone’. I have no direct evidence from CS Medlin before me, however if the conversation happened at around the time that there were discussions happening in the workplace regarding the complaints which were being made, it is unsurprising that such a discussion may have taken place. It is also not unusual for the term ‘witch hunt’ to be used when someone forms a view that a number of people are making complaints at the same time. As to the alleged statement that sexist or racist conduct is an easy way to get rid of someone, I would only reflect that the Code of Conduct and a range of other laws prohibit sexist or racist conduct and so it is unsurprising that an observation would be made that such complaints may give rise to a disciplinary process.
  1. [164]
    Mr Nye complains that the decision-maker did not properly address his allegation that the complaints were orchestrated. However, the decision letter addresses this matter on page 30. DC McCahon states that Mr Nye has no evidence that there had been collusion among the witnesses. DC McCahon says that on the basis of the evidence of the complainants and the evidence in corroboration, he formed the view that the complaints have substance and are genuine.
  1. [165]
    While it may be the case that the women involved felt prompted to file their complaints once they became aware of other complaints being made, this does not mean that the women colluded. That the complaints were made contemporaneously also does not serve to make the complaints false or vexatious. It was open to DC McCahon to determine that the complaints were genuine.

Mr Nye says the Department has failed in its duty of care to him

  1. [166]
    Mr Nye complains that he was aware as of 20 August 2021 that there were rumours circulating that female staff had raised complaints about him. While it may be unfortunate that such discussions were occurring, I am unsurprised that there was discussion in the workplace regarding complaints given the number of complaints made by different staff members in the same workplace against the same person. Mr Nye says that he approached the GM to discuss the rumours of complaints being made about him and that he was formally informed of the complaints on 7 September 2021 and that he told the GM that staff were already talking about the complaints.
  1. [167]
    If it is true that the complaints were being discussed any further than with support people or the recipients of the complaints, I understand Mr Nye’s dismay. However, given the nature of the complaints, I think it is to be expected that the complainants may have discussed the conduct subject of the complaints between themselves either at the time of the conduct or at a later date when they became aware of other conduct.  The time period between Mr Nye hearing that there may be complaints against him and the formal notification about the complaints was relatively short. It is understandable that there was some delay though as there is time involved in collating complaints and undertaking brief initial investigations to determine if the complaints should be put to Mr Nye for a response. The time period following Mr Nye being asked for an initial written response and him being informed on 22 September 2021 that an ESG investigation had commenced was also reasonable.
  1. [168]
    Mr Nye has made submissions that he broke down emotionally and that he had a conversation with the DGM and GM regarding his concerns that the complaints were orchestrated. Mr Nye makes a connection to his WorkCover claim, however, I note the Respondent’s submissions that the WorkCover claim was accepted on the basis of ‘overwork’ and WorkCover found that the disciplinary process constituted reasonable management action.
  1. [169]
    While Mr Nye complains that no risk assessment was carried out as required by the Queensland Investigation Guide 2018, it appears that he was offered seconded positions in sentence management and compliance.
  1. [170]
    I am unsure about whether Mr Nye had a particular person to contact regarding this matter, however I accept that Mr Nye had the capacity to seek updates on matters via the Ethical Standards complaints email and that the Respondent says Mr Nye had access to regular and transparent communication.
  1. [171]
    While I understand that Mr Nye thinks the process should have been undertaken differently, the Respondent’s submissions address the investigation and disciplinary process. It seems to me that Mr Nye was afforded information about the EAP, was invited to contact the investigator prior to the interview, was invited to bring a support person to the interview and was invited by the investigator to provide any information or documentation he thought was relevant to the matter after he had been interviewed.

Mr Nye says the correct evidential standard has not been applied

  1. [172]
    As I understand Mr Nye’s submissions on this point, he does not think that the evidence before the decision-maker was such that the allegations could be substantiated. Mr Nye cites Briginshaw as authority for the principle that the standard of evidence must be commensurate to the seriousness of the allegations.
  1. [173]
    Mr Nye complains that the delay in bringing the complaints means that despite the seriousness of the allegations, the competence and accuracy provided by witnesses will have diminished over time. While I agree that a lengthy delay can impact the evidence witnesses are able to provide, I have reviewed the transcripts and it is my view that most witnesses had quite good recall of the events they say occurred. Mr Nye appears to have no recollection of some matters or says that they did not happen.  However, a review of the transcripts does not suggest that other witnesses suffered the same problem.
  1. [174]
    Mr Nye submits that the investigator relied upon the totality of the complaints as evidence to substantiate all allegations. I have reviewed the investigation report and have identified the passage Mr Nye is likely referring to:

CM Nye admitted to potentially being in a staff member’s personal space when task focused, making an ‘erection’ comment during a briefing and to touching the wrist of [Employee C] to gain her attention when focusing on a task.

When viewed individually, a number of concerns raised by the complainants were not supported by other witness or documentary evidence. Similarly, CM Nye provided reasons for making what may be considered inappropriate remarks in email and LinkedIn messages to [Employee A] and [Employee C]. While CM Nye has generally denied any inappropriate conduct towards female staff, all complainants outlined distress about his behaviour towards them with a general consensus no one wanted to be in a room alone with CM Nye due to those concerns.

[Employee C] and [Employee E] believed CM Nye sexually harassed them while [Employee A] was ‘too scared’ to say. CM Nye sincerely believed ‘my conduct was appropriate and professional in all complaints except in the matter of the comment at the meeting’. He did not believe his conduct was sexual harassment.

The evidence in totality, indicates a consistent portrayal of inappropriate conduct directed towards female staff who work in different areas of CapCC. On the balance of probabilities, the available evidence indicates it is more likely than not that CM Nye has failed to treat female staff with courtesy and respect by behaving towards and conversing with them in an inappropriate manner.

The investigation concluded on the evidence adduced and on the balance of probability that Allegation 1[11] was capable of being substantiated.

  1. [175]
    The Respondent says that the decision-maker applied the relevant standard of proof. I have reviewed the decision and I am of the view that the decision-maker was cognisant of the seriousness of the allegations and properly considered the information available.  I also note that at paragraph 126 of the decision, the decision-maker directly addresses Mr Nye’s concerns about the standard of proof to be discharged and points out the decision relating to sub-allegation 1 which has not been substantiated on the balance of probabilities due to the evidence available.

Allegation 1

  1. [176]
    Mr Nye appears to accept that the email subject of Allegation 1 was not appropriate and that in sending it as he did, later in the evening, providing his private mobile phone number to the officer involved and including the phrase regarding her being able to contact him whether ‘drunk or sober’, Mr Nye failed to treat the officer with courtesy and respect.
  1. [177]
    I note Mr Nye’s submission that the email was sent out of concern for Employee A and the reference to her being able to call him whether ‘drunk or sober’ was intended to be ‘light-hearted humour’. However, it was open to the decision-maker to determine that these submissions did not provide a reasonable excuse for sending the email.
  1. [178]
    While Mr Nye is concerned that the investigator was influenced by comments made by Employee A’s support person in the interview and that other relevant people were not interviewed, in my view, the content of the email speaks for itself. Mr Nye accepts the connotations which could be inferred from the email. I understand that Mr Nye did not intend such connotations to be drawn by the reader, however this is what occurred and is a compelling reason for professional communications to be sent during work hours and to maintain a professional tone.
  1. [179]
    The allegation pertaining to the email is dealt with at paragraphs 4 to 19 of the decision letter. There is sufficient detail in these paragraphs for Mr Nye to understand the evidence considered by the decision-maker and the decision arrived at.
  1. [180]
    The allegation also alleged a failure to respect personal boundaries. However, I note that this aspect of the allegation was unsubstantiated on the balance of probabilities and no action will be taken in relation that allegation.
  1. [181]
    I am satisfied that while the allegation has been partially substantiated and a ground for discipline has been identified, there was no accompanying finding of sexual harassment. The decision-maker informs Mr Nye at paragraphs 18 and 19 of the decision letter that the conduct in sending the email was unprofessional and inappropriate and concludes that  Mr Nye has contravened, without reasonable excuse, a relevant standard of conduct in a way sufficiently serious to warrant disciplinary action, namely, a standard of conduct applying to Mr Nye under an approved code of conduct under the Public Sector Ethics Act 1994 (Qld). While the decision-maker does not go into further detail, I note that in the first show cause notice, at pages 4, 5 and 6 in paragraph 12(b), the specific sections of the Code of Conduct are outlined for Mr Nye and, relevant to cl 3.1 of the Code of Conduct, are accompanied by excerpts from the Department of Justice and Attorney General Workplace Policy (‘the Workplace Policy’). I am satisfied that the first show cause notice provided Mr Nye with sufficient information to understand the reason the decision-maker arrived at the ground for discipline set out for Allegation 1 in the decision of 16 October 2023.
  1. [182]
    It was fair and reasonable for Allegation 1 to be partially substantiated, giving rise to a ground for discipline pursuant to s 91(1)(h) of the PS Act.

Allegations 2, 3 and 4

  1. [183]
    Mr Nye refutes Allegations 2, 3 and 4 except for Allegation 2(c). Allegation 2 (c) which Mr Nye accepts, involved conduct in which Mr Nye presented a banana to a female colleague in a way which involved some innuendo:
  1. That the Appellant pushed two bananas toward [Employee C], saying words to the effect of ‘would you like a banana’ and making eye contact. [Employee D] confirmed that she was witness to an incident involving a banana and a comment that was a sexual innuendo…
  1. [184]
    While Mr Nye has no recollection of the conduct in 2(c), he accepts it is more than likely to have occurred and submits that the workplace had a culture of ‘banter’ at that time and that the complaint was made many months after the alleged incident was said to have occurred. The decision-maker addressed Mr Nye’s claims that the incident could be characterised as ‘banter’ and I find it was open to the decision-maker to determine that in his role as Correctional Manager, Mr Nye should be conducting himself in a way that sets an example to staff.

Allegation 2(a) and (b)

  1. [185]
    The other particulars of Allegation 2 are summarised above at [85].
  1. [186]
    When considering the nature of the complaints which have been made and the power imbalance that existed between Mr Nye and Employee C, I find it was open to the decision-maker to determine that any delay in reporting the conduct was reasonable and that a delay did not mean that her allegations were untruthful.
  1. [187]
    Allegation 2 is dealt with from page 11 of the decision.  The decision-maker notes that in Mr Nye’s initial response he states that he is ‘perplexed and dumbfounded at the statements [Employee C] has put forward as inappropriate behaviour. At no time has [Employee C] challenged, stated, or approached me regarding what she may feel as being uncomfortable or inappropriate behaviour…’.
  1. [188]
    DC McCahon sets out the information provided by Mr Nye at interview and in his show cause response. He then sets out the relevant section of Employee C’s written complaint and what Employee C said at interview.
  1. [189]
    DC McCahon then moves to the evidence of CS Gerard Lawson who supported Employee C’s evidence.
  1. [190]
    At paragraph 28 of the decision, DC McCahon states that ‘there is also evidence of you invading female officers’ personal space generally’ and refers to evidence given by Employee D and Employee A.
  1. [191]
    Regarding the allegation that Mr Nye had straddled Employee C with his legs, at interview, Mr Nye stated that he couldn’t remember it, but that if it was the case, he was sorry and it was not in his mind to do it, if it happened at all.  Mr Nye’s written response made reference to his vision problems and dyslexia which he said impact on him when needed to read shared screens. Mr Nye also states that if the conduct of straddling Employee C occurred and was witnessed, he would expect it to be reported in a timely manner.
  1. [192]
    At paragraphs 35(a)-(j) and 36, decision-maker sets out a detailed list of reasons for finding the first part of Allegation 2 substantiated.  I am satisfied that the decision-maker has carefully considered the available information and that it was open to him to find the allegation substantiated. It was further open to the decision-maker to find that the conduct failed to treat Employee C with courtesy and respect.
  1. [193]
    The second part of Allegation 2 concerned Mr Nye inappropriately rubbing the complainant’s arm.
  1. [194]
    The decision-maker sets out the evidence regarding this allegation from paragraphs 37 to 44 of the decision letter on page 17. At paragraph 45, the decision-maker explains why he prefers the complainant’s evidence. One of the matters the decision-maker took into account was that Mr Nye had accepted during the interview that he had touched the complainant’s arm but that in his written response he said he touched her hand. In either of these versions, Mr Nye touched the complainant. The decision-maker also considered the broader evidence that Mr Nye made women feel uncomfortable in the workplace and that Allegation 4 addressed a similar incident involving inappropriate touching of another complainant on the hand.
  2. [195]
    At 48 of the decision letter, decision-maker considers Mr Nye’s submission that his conduct was not intentional or a ‘conscionable act’ and states that whether or not Mr Nye intended to make a female colleague feel uncomfortable in the workplace is not the test.  I find it was open to the decision-maker to find that in rubbing the complainant’s arm without her consent, Mr Nye failed to treat her with courtesy and respect and in doing so departed from the standard of conduct expected of him and all QCS employees.
  1. [196]
    The content of the substantiated elements of Allegation 2 is serious. However, I note that when considering the various aspects of Allegation 2, the decision-maker informs Mr Nye that he has failed to treat the complainant with courtesy and respect. The first show cause notice informs Mr Nye that Allegation 2 could give rise to a ground for discipline based on misconduct or alternatively, a breach of the Code of Conduct including cl 1.5 relating to demonstrating a high standard of workplace behaviour and conduct (including to treat co-workers with courtesy and respect) and relevant to cl 3.1, the Workplace Policy and the QCS Discrimination and Harassment Policy. 
  1. [197]
    While I am satisfied that the allegation is substantiated, I find that the decision-maker has not provided Mr Nye with sufficient reasons for him to understand why the ground for discipline identified in the decision letter was misconduct per s 91(1)(b) of the PS Act, being inappropriate or improper conduct in an official capacity rather than the alternative ground for discipline based on a breach of the Code of Conduct per s 91(1)(h). Without an explanation as to the finding of misconduct per s 91(1)(b), I do not think the decision is fair and reasonable. I have determined to return this matter to the Respondent to consider and re-issue the letter with the inclusion of more detailed reasons for the ground of discipline finding relevant to Allegation 2.

Allegation 3

  1. [198]
    Allegation 3 is that Mr Nye failed to treat Employee E with courtesy and respect by making inappropriate sexual gestures towards her, failing to respect personal boundaries and making inappropriate comments.
  1. [199]
    At paragraph 72, the decision-maker notes that in his response, Mr Nye does not admit or deny the conduct that forms part of the three sub-allegations in Allegation 3 but instead challenges the complainant’s evidence as she has now resigned from QCS and is unable to provide witnesses, disputes the date range and notes the absence of any specificity in relation the allegation or a contemporaneous record or complaint. The decision-maker then sets out, at paragraph 73, the reasons he prefers the complainant’s version of events over Mr Nye’s.
  1. [200]
    I understand that Employee E has now resigned from the workplace, however this does not serve to make her allegations untruthful. Mr Nye points out that there is no other evidence supporting Employee E’s evidence. However, the Respondent says that DC McCahon preferred Employee E’s evidence on the basis that there was significant evidence regarding Mr Nye’s conduct being inappropriate and a failure to respect the boundaries of his female colleagues. Like other complainants, Employee E stated that she did not raise matters directly with Mr Nye due to the power imbalance that existed between them.
  1. [201]
    It also seems to me that the nature of the faces and gestures that the complainant says Mr Nye was making means that it is more likely than not that this would occur when there was no one present. This means it is unsurprising that there are no witnesses to the conduct.
  1. [202]
    I have reviewed the allegation and the statements and responses provided. I find that it was open to the investigator to determine that Mr Nye’s explanation for asking Employee E  about whether she was married was not plausible. I also note that with regard to another occasion of an inappropriate comment being made to Employee E by Mr Nye, in Mr Nye’s original response, he admitted to answering in response to her question about what his plans for the weekend were, ‘Why are you giving me a better invitation?’. Mr Nye denied the allegation at interview.
  1. [203]
    There are often situations where a decision-maker will need to determine which of two accounts are true in circumstances where the only two people present for a conversation or event are those presenting statements. In these circumstances, it is open to the decision-maker to consider the conflicting statements in the context of all of the other relevant material. Here, DC McCahon had a number of complaints and interview statements from other women who worked at the centre who had experienced very similar conduct as that forming Allegation 2.  I find that it was open to DC McCahon to determine on the balance of probabilities that he preferred Employee E’s version of events for the reasons set out in paragraph 73(a)-(c) of the decision letter. It was fair and reasonable for DC McCahon to find that Mr Nye had failed to treat Employee E with courtesy and respect.
  1. [204]
    In the first show cause notice, Mr Nye was informed that the conduct subject of Allegation 3 may give rise to a ground for discipline of either misconduct or a contravention of the Code of Conduct, specifically cl 1.5 with regard to demonstrating a high standard of workplace behaviour and personal conduct (which includes treating co-workers with courtesy and respect) and cl 3.1 as it relates to the Workplace Policy and the QCS Discrimination and Harassment Policy. While the decision letter states at paragraph 74 that Mr Nye failed to treat the complainant with courtesy and respect, in paragraph 75, the decision goes on to communicate a finding that Mr Nye is guilty of misconduct pursuant to s 91(1)(b) of the PS Act.
  1. [205]
    While I am satisfied that Allegation 3 is substantiated on the balance of probabilities, I do not find that the decision-maker has provided Mr Nye with sufficient reasons to explain why the ground of discipline for Allegation 3 is misconduct pursuant to s 91(1)(b) of the PS Act rather than a contravention of a relevant standard of conduct pursuant to s 91(1)(h). For this reason, I do not think the decision is fair and reasonable. The matter should be returned to the Respondent to consider and re-issue the letter with the inclusion of more detailed reasons for the ground of discipline finding relevant to Allegation 3.

Allegation 4

  1. [206]
    Allegation 4 relates to Mr Nye’s alleged conduct towards Employee D. Employee D alleges that Mr Nye did not respect her boundaries and inappropriately tickled her hand.  Mr Nye stated that his conduct could be explained by his poor eyesight and the small space available. It was fair for the decision-maker to find that while Mr Nye may have a need to sit close to a computer screen due to his eyesight, this was not an excuse to encroach on Employee D’s personal space.
  1. [207]
    With regard to the allegation that Mr Nye had tickled Employee D’s hand, it was open to the decision-maker to accept her version of events in circumstances where Mr Nye’s response to this allegation was at times by way of strong denials but at others, a lack of recollection. I understand Mr Nye’s submission that the passage of time meant that his responses may have been inconsistent and that it is not fair for the decision-maker to rely on these inconsistencies to substantiate the allegation. However, I find the decision-maker also relied upon the complainant’s evidence.
  1. [208]
    At paragraph 11, the first show cause notice identified the ground for disciplinary action as a contravention of a relevant standard of conduct, namely the Code of Conduct at cl 1.5 regarding demonstration of a high standard of workplace behaviour and personal conduct (including treating co-workers with courtesy and respect) and cl 3.1 as it relates to complying with the listed sections of the Workplace Policy.
  1. [209]
    In circumstances where similar conduct had been complained of by others and DC McCahon had accepted on the balance of probabilities that this conduct was substantiated, I find it was open to DC McCahon to substantiate this allegation on the balance of probabilities for the reasons set out at paragraph 76 to 88 of the decision and to find that Mr Nye failed to treat the complainant with courtesy and respect. It was further open to the decision-maker to determine that pursuant to s 91(1)(h) of the PS Act, Mr Nye had contravened a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

Allegation 5

  1. [210]
    Regarding Allegation 5, Mr Nye accepts this allegation and says that he takes full responsibility for his conduct, however, he says that the matter was ‘disposed of’ on the day of the meeting when he made the remarks which have been attributed to him. I understand that Mr Nye may feel as though the matter had been ‘dealt with’ when he was spoken to immediately following the conduct in question. I agree with the Respondent that early intervention by managers, even where a disciplinary process is likely, is promoted by Directive 14/20.
  2. [211]
    There is no evidence that Mr Nye received any penalty at the time he was spoken to about the conduct on the day he made the remarks. Following the local management action involving a conversation with Mr Nye, it was open to the Respondent to determine that the behaviour was of a serious enough nature that it warranted a disciplinary process. Mr Nye has been properly given an opportunity to show cause as to whether there was a reasonable excuse for his remarks. It was fair and reasonable for Allegation 5 to be dealt with under the disciplinary procedure and for the Allegation to be upheld.
  1. [212]
    I find that the decision-maker properly considered Mr Nye’s response and the justification provided for his comment subject of the allegation. The reasons provided at pages 25 to 28 are detailed and provide Mr Nye with enough information to understand why Allegation 5 was substantiated.
  1. [213]
    At pages 20 to 22 of the first show cause notice, Mr Nye is told that the conduct subject of Allegation 5 may give rise to disciplinary action on the basis of misconduct or alternatively a contravention of a relevant standard of conduct. The relevant sections of the Code of Conduct are listed as cl 1.5 relating to demonstrating a high standard of workplace behaviour and personal conduct and cl 3.1 with regard to adhering to the relevant listed policies (the Workplace Policy and the QCS Discrimination and Harassment Policy).
  1. [214]
    At paragraph 107 of the decision letter, Mr McCahon refers to ‘acting professionally and appropriately in a workplace context’ and ‘upholding the values prescribed in the Code of Conduct and other associated policies which apply to your role’. Despite these references which appear to explain a decision establishing a ground for discipline pursuant to s 91(1)(h), at paragraph 112 of the decision, Mr McCahon informs Mr Nye that he has been found guilty of misconduct pursuant to section 91(1)(b) of the PS Act.
  1. [215]
    While I confirm the decision to substantiate Allegation 5, I do not think that Mr Nye has been provided with sufficient written reasons to understand the finding that he is guilty of misconduct arising from Allegation 5. For this reason, the decision is not fair and reasonable.  The matter should be returned to the Respondent to consider and re-issue the letter with the inclusion of more detailed reasons for the ground of discipline finding relevant to Allegation 5.

Other matters

  1. [216]
    I note that Mr Nye has made submissions regarding his age, the impact on his family, his health and personality as mitigating factors to be taken into account in the determination of disciplinary action to be taken against him. These are matters for Mr Nye to address in his response to the second show cause notice regarding proposed disciplinary action.
  1. [217]
    Mr Nye has complained that the Respondent has failed to consider his human rights. I note that the decision letter recognises that Mr Nye’s human rights may be limited by the disciplinary decision but sates that the public interest in Mr Nye properly complying with the Code of Conduct and treating his co-workers with courtesy and respect outweighs any impact on his human rights. I find that Mr Nye’s human rights were considered by the decision-maker.
  1. [218]
    Mr Nye says that he has been injured because of the Respondent’s handling of the disciplinary process. I note that Mr Nye’s submissions contain several references to his WorkCover claim. Any claims that the process has injured Mr Nye are properly dealt with by way of his application for compensation.
  1. [219]
    Mr Nye refers to the Respondent negligently breaching its common law duty of care. That is not a matter for me to consider in this public sector appeal.
  1. [220]
    Mr Nye has suggested that inferences of adverse action by the employer may be drawn from the matters he has raised. If Mr Nye believes adverse action has been taken against him, he should pursue this through the correct avenues.
  1. [221]
    Mr Nye is concerned with the proposed disciplinary action being determined as termination of employment. Mr Nye notes that the investigation report identified the case as a Category 2 CaPE but that the decision-maker has elevated it to a Category 3 CaPE. Mr Nye will have an opportunity to address the proposed disciplinary action in his second show cause response.
  1. [222]
    Mr Nye says that he attempted to raise a grievance regarding the disciplinary process and his suspicion of collusion between witnesses but that he was discouraged from lodging such a grievance. I have no information about this, but I note that from page 28 to 31 of the decision letter, DC McCahon responds to a range of issues raised by Mr Nye regarding procedural fairness, the application of the process and his allegations of collusion. These matters are also addressed at length in the submissions of the parties in this appeal.

Conclusion

  1. [223]
    The decision letter is 34 pages long and provides a detailed summary of the allegations, the evidence available including the investigation findings, Mr Nye’s response and the decision-maker’s deliberations. I am satisfied that the decision-maker has considered all of the available information in order to independently reach a conclusion regarding each allegation.
  1. [224]
    I understand that disciplinary matters relating to conduct that may not have occurred in front of witnesses involve a decision-maker listening to differing versions or events, looking at all available evidence and determining on the balance of probabilities if the alleged conduct occurred. For the reasons given above, I find that it was fair and reasonable for DC McCahon to decide that the Allegations (with the exception of sub-allegation 1 of Allegation 1) were substantiated on the balance of probabilities.
  1. [225]
    The proposed disciplinary action Mr Nye has been asked to address in his second show cause response is termination of employment. Given the decision letter contains several findings of misconduct, I think it is important that Mr Nye understands the reasons why DC McCahon determined grounds for discipline of misconduct under s 91(1)(b) for Allegations 2, 3 and 5 rather than the alternative grounds for discipline arising from a contravention of a relevant standard of conduct per s 91(1)(h).
  1. [226]
    I have determined to confirm the decision to substantiate the five allegations on the balance of probabilities. I further confirm the decision regarding grounds for discipline for Allegations 1 and 4.
  1. [227]
    However, I find the provision of reasons for the findings of misconduct regarding Allegations 2, 3 and 5 is not sufficient for Mr Nye to understand how these findings were determined. For that reason, the decision is not fair and reasonable. The decision is set aside and will be returned to the decision-maker with a copy of these reasons and a direction that the decision-maker provide reasons to explain the grounds for discipline arrived at for Allegations 2, 3 and 5.

Order

  1. [228]
    I make the following order:
  1. Pursuant to 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision is set aside and the matter is returned to the decision maker with a copy of the decision on appeal with a direction that the decision-maker provide reasons to explain the findings regarding grounds for discipline for Allegations 2, 3 and 5.

Footnotes

[1] I have determined to use pseudonyms in place of the names of each complainant; I also note that the Allegation as it relates to Employee B was not pursued.

[2] This was not substantiated and no further action to be taken with regard to this sub-allegation.

[3] The relevant policies here appear to be the Department of Justice and Attorney General Workplace Policy and the QCS Discrimination and Harassment Policy.

[4] Letter from Mr Gary McMahon, Deputy Commissioner Custodial Operations to Mr Gerard Nye, 16 October 2023, [111].

[5] Briginshaw v Briginshaw (1938) 60 CLR 336.

[6] Gilmour v Waddell [2019] QSC 170.

[7] [2021] QIRC 36.

[8] [2017] QIRC 41.

[9] [2017] FWC 605.

[10] [2022] QIRC 12.

[11] The investigation was regarding one allegation that addressed the complaints together. The allegations which formed part of the show cause process were drawn out of the investigation findings.

Close

Editorial Notes

  • Published Case Name:

    Nye v State of Queensland (Queensland Corrective Services)

  • Shortened Case Name:

    Nye v State of Queensland (Queensland Corrective Services)

  • MNC:

    [2024] QIRC 37

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    14 Feb 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
AW v State of Queensland (Department of Environment and Science) [2021] QIRC 36
1 citation
Jump To
Cite 1 - [2021] QIRC 36
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Gilmour v Waddell [2019] QSC 170
1 citation
Jump To
Cite 1 - [2019] QSC 170
Jenkins v State of Queensland (Queensland Health) [2022] QIRC 12
1 citation
Jump To
Cite 1 - [2022] QIRC 12
Kumari v Metro Trains Melbourne [2017] FWC 605
1 citation
Jump To
Cite 1 - [2017] FWC 605
White v Queensland [2017] QIRC 41
1 citation
Jump To
Cite 1 - [2017] QIRC 41

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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