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  4. Pflaum v State of Queensland (Department of Education) - [2024] QIRC 50

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Pflaum v State of Queensland (Department of Education)[2024] QIRC 50

Pflaum v State of Queensland (Department of Education)[2024] QIRC 50

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pflaum v State of Queensland (Department of Education) [2024] QIRC 050

PARTIES:

Pflaum, Michael

(Appellant)

v

State of Queensland (Department of Education)

(Respondent)

CASE NO:

PSA/2023/124

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

26 February 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

  1. Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, I decline to hear the appeal against the Disciplinary Finding Decision.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Disciplinary Action Decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where the appellant is employed as a Deputy Principal – where conduct allegations substantiated – where appeal against disciplinary finding decision was filed out of time – whether appeal against disciplinary finding decision should be heard out of time – where disciplinary action imposed – whether disciplinary action decision was fair and reasonable – whether disciplinary action was appropriate and proportionate

LEGISLATION & OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 3, s 272, s 451, s 562A, s 562B, s 562C, s 564, s 567

Industrial Relations Act 1999 (Qld) s 74

Public Sector Act 2022 (Qld) s 3, s 4, s 91, s 92, s 93

Directive 05/23 Discipline cl 4, cl 7, cl 9, cl 10, cl 13

CASES:

Aon Risk Services v Australian National University (2009) 239 CLR 175

Breust v Qantas Airways Ltd (1995) 149 QGIG 777

Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541

Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298

Bruce Anthony Piggott v State of Queensland [2010] ICQ 35

Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20

Gilmour v Waddell & Ors [2019] QSC 170

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

House v The King (1936) 55 CLR 499

Lockhart v Queensland Health [2014] QIRC 012

Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232

Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138

Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189

Reasons for Decision

  1. [1]
    Mr Michael Pflaum (the Appellant) is currently employed by the State of Queensland (the Respondent) within the Department of Education (the Department), as a full-time Deputy Principal (DP1-03)[1] at Lockyer District State High School (the school).[2] 
  1. [2]
    Mr Pflaum commenced with the Department in 1999.[3]
  1. [3]
    The Integrity and Employee Relations Unit (IER Unit) of the Department conducted investigations into numerous matters concerning Mr Pflaum's alleged conduct as a Deputy Principal at the school.  Those allegations were subject of two Investigation Reports in November 2021.  The investigator concluded that 6 of the 15 allegations were "capable of substantiation", on the balance of probabilities.  A show cause process then ensued.[4]
  1. [4]
    Since March 2021, Mr Pflaum has been performing alternative duties at the Darling Downs South West Regional Office.[5]
  1. [5]
    On 2 February 2023, Mr Pflaum was advised that the following allegations against him were found to be substantiated (the Disciplinary Findings Decision):
  1. Allegation Two:
  1. During 2020, at Lockyer District State High School, you repeatedly engaged in inappropriate and unprofessional behaviours toward your colleagues and parents of students at the school.  Specific instances include but are not limited to:
  1. a.
    On 25 May 2020, engaging in behaviour toward Mr Matthew Schultze, Teacher, that was inappropriate and unprofessional.
  1. b.
    On 5 June 2020 and 12 June 2020, engaging in behaviour toward Ms Jennyfer Sloane, being a parent of a student at Lockyer District State High School, that was inappropriate and unprofessional.
  1. c.
    On 27 August 2020, engaging in behaviour toward Ms Christie Robb, Head of Department, that was inappropriate and unprofessional.
  1. d.
    On 2 December 2020, engaging in behaviour toward Ms Kathy Wagner, Head of Department, that was inappropriate and unprofessional.
  1. Allegation Three:
  1. On 2 December 2020, at Lockyer District State High School, you failed to comply with a reasonable direction given to you by Mr David Miller, Executive Director, by interacting with a colleague in an unprofessional manner.
  1. [6]
    On the basis of the Disciplinary Findings Decision above, Ms R. Borger (the Decision Maker) determined:
  • Allegation Two, I find that pursuant to section 91(1)(h) of the PS Act you have contravened, without reasonable excuse, a standard of conduct applying to you under an approved code of conduct, specifically clauses 1.5 and 3.1 of the Code of Conduct in a way that is sufficiently serious to warrant disciplinary action.
  • Allegation Three, I find that pursuant to section 91(1)(d) of the PS Act, you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.[6]
  1. [7]
    In the 2 February 2023 correspondence, the Decision Maker advised Mr Pflaum that she was currently giving serious consideration to imposing the following disciplinary action (the Disciplinary Action Decision):
  • A disciplinary transfer to a school within 50 minutes' drive of your residential address … unless an alternative geographical area is agreed; and
  • A demotion from the position of Deputy Principal [DP1-03] to the position of Head of Department [H02-03]; with a restriction on applying for deputy principal roles for a period of 12 months.[7]
  1. [8]
    Mr Pflaum was afforded the opportunity to show cause as to why the proposed disciplinary action should not be taken.
  1. [9]
    After considering Mr Pflaum's response, the Decision Maker revised the proposal at [7] above.  On 9 June 2023, Mr Pflaum was advised that a less onerous Disciplinary Action Decision had been made.  That is, in addition to the disciplinary transfer to another school, Mr Pflaum would be subject to a "reduction of remuneration from Deputy Principal [DP1-03] to [DP1-02] for a period of 12 months, and a direction that you undertake professional coaching support sessions / workplace behaviour training sessions".
  1. [10]
    The Appeal Notice outlines the remedy Mr Pflaum seeks in these terms:

I am appealing the process, findings and disciplinary action in relation to the "Decision on disciplinary action – transfer, reduction in remuneration level and direction" 09 June 2023

  1. [11]
    Out of fairness to Mr Pflaum, I will accept the Appeal Notice as an appeal of both the Disciplinary Finding Decision and Disciplinary Action Decision - however for reasons that follow, I will decline to hear the appeal against the Disciplinary Finding Decision.
  1. [12]
    On 4 July 2023, I issued a Directions Order that stayed the Disciplinary Action Decision until the determination of this appeal or further order of the Commission.

Chronology

  1. [13]
    A chronology of the process undertaken by the Department is set out below:[8]

17 October 2022

First Show Cause Notice:[9]

Mr Pflaum was asked to show cause why disciplinary findings should not be made against him, in relation to the allegations.

31 October 2022

Response to the First Show Cause Notice:[10]

Mr Pflaum provided his written response.

2 February 2023

Second Show Cause Notice:[11]

Mr Pflaum was advised of the disciplinary findings made, and the proposed disciplinary action.

17 February 2023

Response to the Second Show Cause Notice:[12]

Mr Pflaum provided his written response.

9 June 2023

Discipline Action decision issued.[13]

30 June 2023

Mr Pflaum filed an Appeal Notice in the Industrial Registry.

Jurisdiction

  1. [14]
    Section 131(1) of the Public Sector Act 2022 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made, that includes "a disciplinary decision". Section 129 of the PS Act provides that a disciplinary decision "means a decision under a disciplinary law to discipline - a person (other than by termination of employment), including the action taken in disciplining the person."
  1. [15]
    Mr Pflaum has been an employee of the Respondent at all times relevant to this appeal.
  1. [16]
    I am satisfied that the Disciplinary Finding Decision and Disciplinary Action Decision can be appealed. 

Timeframe to Appeal

  1. [17]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [18]
    The Disciplinary Action Decision was given to Mr Pflaum on 9 June 2023 and the Appeal Notice was filed with the Industrial Registry on 30 June 2023. Therefore, I am satisfied that the Appeal Notice, as it pertains to the Disciplinary Action Decision, was filed by Mr Pflaum within the required timeframe.
  1. [19]
    However, the Disciplinary Finding Decision was given to Mr Pflaum on 2 February 2023. In accordance with s 564(3) of the IR Act, an appeal of the Disciplinary Finding Decision should have been filed on or by 23 February 2023.  Therefore, the Appeal Notice, as it pertains to the Disciplinary Finding Decision, was filed about four months out of time.

Should the appeal against the Disciplinary Finding Decision be heard out of time?

  1. [20]
    I am empowered by the IR Act to extend the time for filing an Appeal Notice.[14] The IR Act does not provide any criteria against which I am to determine whether or not to extend time.
  1. [21]
    Mr Pflaum bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[15]

Appellant's position

  1. [22]
    From what I can discern of his submissions, Mr Pflaum has offered the following explanation as to why he did not appeal the earlier disciplinary findings decision:

I received the first letter in September 2020.  This issue has been going on for almost three years.  While Ms Borger points out the one time I did not appeal the decision, the process is very wearing and stressful and it is hard to keep repeating the same information when it is not taken seriously, believed or investigated.[16]

…

Every time I receive a communication, it creates a lot of stress.  I have not had warning about correspondence, leading me to experiencing hypervigilance about email communication.  Ironically, I received one of the communications on 'Are you OK' day.  I had no care or support other than a few colleagues who have shown simple kindness.[17]

Respondent's position

  1. [23]
    The Respondent submitted that "Notwithstanding the contentions of the Appellant with respect to the disciplinary findings, the Respondent respectfully submits the decision the subject of the Appeal is limited to the Discipline Decision."[18]  That is because:

The Appellant was advised of his appeal rights with respect to the disciplinary findings under the former Public Service Act 2008 that a disciplinary ground exists, however, did not exercise those rights at the time of the discipline finding decision.  The Respondent respectfully submits that any appeal with respect to the discipline finding decision would be significantly out of time and, further, is not the subject of this Appeal.[19]

Consideration

  1. [24]
    The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.[20] Several factors inform the exercise of my discretion.
  1. [25]
    In Breust v Qantas Airways Ltd,[21] Hall P set out the following considerations:
  • The length of the delay;
  • The explanation for the delay;
  • The prejudice to the Appellant if the extension of time is not granted;
  • The prejudice to the Respondent if the extension of time is granted; and
  • Any relevant conduct of the Respondent.
  1. [26]
    The Appellant bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.[22]  
  1. [27]
    Some additional considerations were provided by Linnane VP in Geoffrey John Erhardt v Goodman Fielder Food Services Limited.[23] These were usefully summarised by Industrial Commissioner Thompson in Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services),[24] which is paraphrased below:
  • The 21-day time limit must be respected and should not easily be dispensed with; and
  • The Applicant's prospects of success at a substantive hearing is always a relevant matter in that where it appears an Applicant has no, or very limited prospects of success, the Queensland Industrial Relations Commission (QIRC) would not normally grant an extension of time.
  1. [28]
    Those cases were considering s 74(2)(b) of the Industrial Relations Act 1999 (Qld). However, they were answering substantively the same question as in this case; what should inform the exercise of my discretion in extending the time to bring proceedings? As such, I find their assessment of the relevant factors to be highly persuasive in informing the exercise of my discretion. 
  1. [29]
    Additionally, my discretion is informed by the purposes of the IR Act, including providing an industrial relations framework that is fair and balanced.[25] In that regard, I am guided by the commentary of French CJ in Aon Risk Services v Australian National University:[26]

… Also to be considered is the potential for loss of public confidence in the legal system which arises where a court is seen to accede to applications (for the exercise of discretion) made without adequate explanation or justification.[27]

Length of delay

  1. [30]
    The appeal was filed approximately four months out of time.
  1. [31]
    The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act.
  1. [32]
    The character of the delay, be it excessive, reasonable or otherwise, takes its colour from the surrounding circumstances.[28] It is true that in some cases delays of several weeks have been considered to be not excessive.[29] However, in such cases the delay is usually accompanied by a substantial explanation such as legal representative error, natural disasters or the like.[30] That is not the case here.
  1. [33]
    In Lockhart v Queensland Health,[31] Deputy President Kaufman found that 42 days beyond the statutory limit of 21 days was a significant delay.[32]
  1. [34]
    Given the additional circumstances surrounding the delay, prejudice and conduct of the parties outlined below, I have determined a four-month delay is both significant and unreasonable in this case.

Explanation for the delay

  1. [35]
    Mr Pflaum has not provided any specific reason for his delay in appealing the disciplinary findings decision, beyond a rather broad statement that "the process is very wearing and stressful and it is hard to keep repeating the same information when it is not taken seriously, believed or investigated."
  1. [36]
    In the Disciplinary Finding Decision correspondence dated 2 February 2023, The Decision Maker relevantly stated the following (emphasis added):

Appeal entitlements

If you believe that my decision to find Allegations Two and Three substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge an appeal under the appeal provisions of the PS Act within 21 days of receipt of this letter.

…

  1. [37]
    As the above extract shows, Mr Pflaum ought to have known there is a 21-day time limit within which he needed to file an appeal with the QIRC - that was clearly explained to him.  Therefore, I conclude there is no reasonable explanation for the delay.

Prejudice to Mr Pflaum

  1. [38]
    The obvious prejudice is that Mr Pflaum would lose the opportunity for an independent review of the Disciplinary Finding Decision, and any subsequent relief.  I appreciate that outcome is not an insubstantial detriment.

Prejudice to the Respondent

  1. [39]
    I note the Respondent did not put forward submissions with respect to prejudice. Notwithstanding, delay itself is considered to give rise to a general presumption of prejudice to the Respondent.[33] Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.[34]
  1. [40]
    When Mr Pflaum responded to the Disciplinary Finding Decision that contained the proposed disciplinary action, he proceeded to respond to the proposed disciplinary action. By not appealing the Disciplinary Finding Decision within the required timeframe, Mr Pflaum may have indicated to the Respondent that he intended to proceed with the disciplinary process. Had Mr Pflaum appealed the Disciplinary Finding Decision within the required timeframe, it is likely the Respondent would have stopped the disciplinary process and would not have considered the penalty until after that appeal had been determined. The Respondent has now taken the time to review Mr Pflaum's response, consider an appropriate disciplinary action and communicate that accordingly.
  1. [41]
    For those reasons, I find the Respondent would suffer prejudice should I decide to exercise my discretion to hear the appeal out of time.

Conduct of the Respondent

  1. [42]
    The Respondent's conduct appropriately comprised advising Mr Pflaum of his appeal rights. There is nothing in the filed materials that suggests the Respondent's conduct contributed to the delay.
  1. [43]
    Rather, I consider the Respondent has paid careful attention to its obligations in this case.
  1. [44]
    In the Decision Maker's 2 February 2023 correspondence, Mr Pflaum was "comprehensively informed" of the reasons for substantiating some of the allegations and his right to appeal the disciplinary findings decision.  That was appropriate.
  1. [45]
    In the 9 June 2023 correspondence,[35] The Decision Maker explained to Mr Pflaum that he already had several opportunities to provide evidence and make submissions in relation to the allegations, before her disciplinary findings were made – and he had done so.  She wrote:

…

In my letter of 2 February 2023, I also advised you of your appeal entitlements if you believed my decision to find Allegations Two and Three were substantiated was unfair and unreasonable.  Notwithstanding this, you did not lodge a public service appeal disputing the disciplinary findings made by me on 2 February 2023.

Although I am satisfied you have been afforded numerous opportunities to provide submissions in respect to your liability the subject of the Allegations against you, as an act of good faith, I have carefully considered your further submissions regarding the Allegations to determine whether I am persuaded to change the findings in my letter of 2 February 2023.

In this respect I also confirm I have drawn my own conclusions independently regarding Allegations Two and Three, based on a consideration of all of the material including each of the matters raised by you in your Responses.  I have assessed the evidence, on the balance of probabilities, having regard to the test in Briginshaw v Bringinshaw (1938) 60 CLR 336.  However, ultimately, I am not persuaded to change my findings as outlined in my letter dated 2 February 2023.[36]

…

  1. [46]
    Demonstrating an abundance of fairness, the Decision Maker's Disciplinary Action Decision correspondence then once again addressed some matters raised by Mr Pflaum with respect to the disciplinary findings she had earlier made.[37]
  1. [47]
    Mr Pflaum's failure to appeal against the Disciplinary Findings Decision on time was not the result of any conduct of the Respondent.

Prospects of success

  1. [48]
    Mr Pflaum's prospects of success at a substantive hearing are a relevant consideration.[38] However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed):[39]

In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.[40]

  1. [49]
    The merits (or lack thereof) are not clear cut at this stage. However, the factors outlined above, coupled with Mr Pflaum's inadequate explanation for the delay lead to my conclusion that this appeal, as it pertains to the Disciplinary Finding Decision, should not be heard out of time.

Conclusion

  1. [50]
    Section 562A(3)(b)(iii) of the IR Act provides:
  1. 562A
    Commission may decide not to hear particular public service appeals
  1. …
  1. (3)
    The commission may decide it will not hear a public service appeal against a decision if—
  1. …
  1. (b)
    The commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal-
  1. …
  1. (iii)
    should not be heard for another compelling reason.
  1. [51]
    The reasons outlined above, being noncompliant with the statutory timeframe coupled with no reasonable grounds to extend that time, are sufficiently compelling reasons to refrain from hearing the appeal as it pertains to the Disciplinary Finding Decision pursuant to s 562A(3)(b)(iii) of the IR Act.
  1. [52]
    I will now proceed to consider the appeal as it pertains to the Disciplinary Action Decision.

Appeal principles

  1. [53]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[41]  This is the key issue for my determination.  Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission:
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [54]
    A public service appeal under the IR Act is not by way of rehearing,[42] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [55]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[43]
  1. [56]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.
  1. [57]
    There is no dispute that Mr Pflaum is a public sector employee aggrieved by the Disciplinary Action Decision dated 9 June 2023 - and is eligible to make an appeal under the PS Act.[44]

What decisions can the Industrial Commissioner make?

  1. [58]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  • confirm the decision appealed against; or
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [59]
    The parties filed written submissions in accordance with the Directions Order issued on 4 July 2023.
  1. [60]
    The Appellant's submissions were filed on 11 July 2023.
  1. [61]
    The Respondent's submissions were filed on 18 July 2023.
  1. [62]
    The Appellant's reply submissions were filed on 25 July 2023.
  1. [63]
    I have carefully considered all submissions and materials.  I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.
  1. Relevant provisions of the PS Act
  1. [64]
    Section 3 of the PS Act provides:
  1. 3
    Main purpose of Act
  1. The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
  1. [65]
    Section 4 of the PS Act describes how that main purpose is primarily achieved:
  1. 4
    How main purpose is primarily achieved
  1. The main purpose of this Act is to be achieved primarily by —
  1. …
  1. (c)
    creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by-
  1. (i)
    providing for the key rights, obligations and employment arrangements of public sector employees; and
  1. …
  1. (v)
    ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and
  1. (vi)
    setting a positive performance management framework for public sector employees; and
  1. (vii)
    fixing principles to guide public sector managers and the work performance and personal conduct of public sector employees; and
  1. …
  1. (d)
    establishing a high-performing, apolitical public sector by effective stewardship that-
  1. …
  1. (v)
    ensures public resources are managed efficiently and their use is accountable.
  1. [66]
    Section 91 of the PS Act relevantly provides as follows (emphasis added):
  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. …
  1. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or[45]
  1. …
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.[46]
  1. [67]
    Sections 92 and 93 of the PS Act relevantly provides:
  1. 92
    Meaning of disciplinary action
  1. (1)
    Disciplinary action is any action relating to employment, including, for example, any of the following actions -
  1. (a)
    termination of employment;
  1. (b)
    reduction of classification level and a consequential change of duties;
  1. (c)
    transfer or redeployment;
  1. (d)
    forfeiture or deferment of a remuneration increment or increase;
  1. (e)
    reduction of remuneration level;
  1. (f)
    imposition of a monetary penalty;
  1. (g)
    if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;
  1. (h)
    a reprimand.
  1. …
  1. 93
    Disciplinary action against public sector employee
  1. (1)
    In disciplining a public sector employee, the employee's chief executive may take the disciplinary action, or order the disciplinary action be taken, against the employee that the chief executive considers reasonable in the circumstances.
  1. …
  1. Relevant provisions of the Directive
  1. [68]
    Directive 05/23 Discipline (Directive 05/23) relevantly provides (emphasis added):
  1. 4.
    Principles
  1. 4.7
    A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:
  1. a.
    the end of unacceptable conduct
  1. b.
    early resolution
  1. c.
    preserving working relationships
  1. d.
    avoiding an unnecessary and disproportionately protracted dispute
  1. 4.8
    Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.
  1. 4.9
    A chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until they have complied with the positive performance management directive in relation to the matter.
  1. 4.10
    Discipline under chapter 3 of the Act must:
  1. a.
    be conducted in in a timely way, to the extent that is within the control of the chief executive, and without any unreasonable unexplained delay, and
  1. b.
    be fair, appropriate and proportionate to the seriousness of the work performance matter, and
  1. c.
    comply with the requirements of the Act, the provisions of this directive and the principles of procedural fairness
  1. …
  1. 7.
    Requirements to commence a discipline process
  1. 7.1
    Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  1. 7.2
    Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
  1. a.
    the seriousness of the employee's personal conduct and/or work performance, and
  1. b.
    whether the matter should be resolved through management action instead, and
  1. c.
    whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
  1. d.
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
  1. e.
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
  1. f.
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  1. g.
    whether further information is required to make a decision to commence a disciplinary process, and
  1. h.
    for a breach of relevant standard of conduct under section 91(1)(h) , that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
  1. 7.3
    Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.
  1. …
  1. 9.
    Discipline process
  1. 9.1
    Section 98 of the Act provides that in disciplining a public sector employee, or former public sector employee, a chief executive must comply with the Act and this directive.
  1. 9.2
    The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.
  1. 9.3
    Show cause process for disciplinary finding
  1. a.
    the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
  1. b.
    written details of each allegation in clause 9.3(a) must include:
  1. i.
    the allegation
  1. ii.
    the particulars of the facts considered by the chief executive for the allegation
  1. iii.
    the disciplinary ground under section 91 of the Act that applies to the allegation
  1. c.
    when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
  1. d.
    a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
  1. e.
    the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
  1. f.
    if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. 9.4
    Decision on grounds (disciplinary finding)
  1. a.
    the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
  1. b.
    the chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding
  1. c.
    for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
  1. d.
    the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
  1. e.
    if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation
  1. f.
    if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
  1. 9.5
    Show cause process for proposed disciplinary action
  1. a.
    the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
  1. b.
    the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
  1. c.
    the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
  1. d.
    in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. i.
    the seriousness of the disciplinary finding
  1. ii.
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. iii.
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. iv.
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. v.
    the employee’s explanation (if any)
  1. vi.
    the degree of risk to the health and safety of employees, customers and members of the public
  1. vii.
    the impact on the employee’s ability to perform the duties of their position
  1. viii.
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. ix.
    the impact a financial penalty may have on the employee
  1. x.
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. xi.
    the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding
  1. e.
    a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
  1. f.
    the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. g.
    if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
  1. 9.6
    Decision on disciplinary action:
  1. a.
    the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken
  1. b.
    the chief executive must inform the employee of the decision in writing, including:
  1. i.
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. ii.
    information that the employee may appeal the decision on disciplinary action (except for a termination decision)
  1. iii.
    for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act
  1. c.
    the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. i.
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. ii.
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. iii.
    the employee has suggested the disciplinary action as an appropriate alternative penalty
  1. d.
    disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public sector employee has expired, or any appeal lodged is finalised.
  1. 9.7
    The chief executive may combine the procedural elements of a show cause process for disciplinary finding and a show cause process for proposed disciplinary action where:
  1. a.
    the particulars of the evidence being relied on to determine discipline liability are not likely to be disputed (for example, where the employee has been found guilty, or pleaded guilty, to a criminal offence in relation to the conduct the subject of the discipline process, regardless of whether a conviction is recorded in relation to that offence), and
  1. b.
    the chief executive reasonably believes the progression or finalisation of the matter is in the best interests of the employee
  1. 9.8
    Action taken against a former public sector employee under section 95 and 96 of the Act must comply with the requirements of sections 98 of the Act
  1. 10.
    Support persons and industrial representatives
  1. 10.1
    A subject employee may be supported by a person of their choosing and/or represented by an industrial representative of a union to which the person is a member, provided the support person:
  1. a.
    is not otherwise involved in the disciplinary process (for example, as a subject employee or witness)
  1. b.
    does not provide direct evidence on behalf of, or otherwise talk for the subject employee.
  1. 10.2
    If a support person is an officer of a union to which the employee is a member, the officer also has a role to support their member’s interests, including actively ensuring that procedural fairness has been afforded to their member
  1. …
  1. 13.
    Appeals
  1. 13.1
    A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.
  1. 13.2
    A subject employee has a right of appeal in relation to a direction given to a chief executive about the handling of a work performance matter, to the extent the direction affects the subject employee, as provided for under section 131 of the Act.
  1. 13.3
    The appeals directive should be referenced for information regarding appeal right and associated timeframes.
  1. …
  1. Definitions
  1. Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.

Grounds of Appeal

  1. [69]
    Mr Pflaum stated he appeals against "the process, findings and disciplinary action in relation to the "Decision on disciplinary action – transfer, reduction in remuneration level and direction" 09 June 2023".[47] 
  1. [70]
    Mr Pflaum's submissions chronicle numerous complaints and disappointments, as the basis for his contention that the decision was unfair and unreasonable.  As best as I can discern from the extensive materials filed in this matter, Mr Pflaum's arguments are as follows:
  1. 1.
    The Disciplinary Findings Decision (dated 2 February 2023) was wrong
  • Allegation Two (a), (b) and (d) should not have been substantiated;[48]
  • Allegation Three should not have been substantiated;[49]
  • The Decision Maker was wrong to prefer the 'version of events' of other witnesses, rather than Mr Pflaum;[50]
  • The Disciplinary Findings Decision amounts to adverse action against Mr Pflaum.[51]
  1. 2.
    The process utilised was not fair and reasonable
  • Allegation Two (c) should have been "redirected to the region or the school as per standard process";[52] 
  • The workplace investigation process should not have progressed because positive performance management principles were not followed.[53]  The principal compiled a 'running record' of incidents that were not discussed with Mr Pflaum;[54] 
  • Procedural fairness / natural justice not provided;
  • Inadequate consideration of Human Rights;[55]
  • Mr Pflaum stated that he was not afforded the presumption of innocence, as shown by the decision to remove him immediately from the school;[56]
  • The "language in both letters is personal and offensive", as it contained "blanket judgements on my professional character and make statements that are simply not true (eg that I was provided the opportunity to provide my own witnesses) …"[57]
  • Mr Pflaum stated that he was not permitted to contact colleagues to provide evidence in support, as all communication emphasised the importance of confidentiality;[58] 
  • The Decision Maker was wrong to consider that a past investigation in 2013 indicated a 'pattern of behaviour';[59]
  • Mr Pflaum was assured of support, but was not provided with any.  Mr Pflaum stated that the Department's actions constitute "a failure in their duty of care to me in providing a safe workplace where I could undertake my duties, which has resulted in significant psychological and reputational harm …"[60]
  • The Department has expended a lot of resources to investigate allegations that have mostly been unsubstantiated;[61]
  • He was subject of workplace bullying, that amounts to occupational violence";[62]
  • Mr Pflaum was provided with "little meaningful work" and "put into an open office area in Regional Office".[63]  Mr Pflaum contends that this amounts to workplace bullying.
  1. 3.
    The Disciplinary Action Decision (dated 9 June 2023) was not fair and reasonable
  • Mr Pflaum contends that the Disciplinary Action Decision is unfair and disproportionate, as "… the damage to my professional reputation, career and health and well-being is out of proportion to the alleged offences;"[64]
  • The decision maker failed to consider that Mr Pflaum has "been stressed and experiencing burn-out at Lockyer District High School due to a toxic work culture … and discrimination by the Principal".[65]
  1. [71]
    In addition to the above, Mr Pflaum's submissions traversed numerous other matters:
  • Purported safety issues and concerns, associated with the alleged conduct of other employees;
  • The Department allocated no resources to investigate the allegations made by Mr Pflaum against others;[66]
  • There has been no investigation or interest in the abuse of the public disclosure and reporting process, despite "clear evidence that at least two public service officers submitted false reports";[67]
  • Mr Pflaum complained that allegations resulted in his referral to the Crime and Misconduct Commission, following "malicious and vexatious complaints and the abuse of the public interest disclosure process";[68]
  • Mr Pflaum stated he has been discriminated against because of "cultural background[69] and not being a member of a professional association", specifically the Queensland Association of Secondary School Principals;[70]
  • Complaint of social exclusion because he was not invited to the Principal's "office for socialising and work discussions", and his office was located away from the other Deputy Principals;[71]
  • Complaint that Mr Pflaum was "not consulted about the allocation of my portfolio as Deputy Principal";[72]
  • Complaint that Mr Pflaum was "never given the opportunity to undertake the role of Acting Principal";[73]
  • The Principal recorded when Mr Pflaum undertook "caring duties for my children" and "wore jeans to work", in the 'running record'.[74]
  1. [72]
    For the reasons explained above, I decline to hear the appeal against the Disciplinary Finding Decision.  Therefore, I am proceeding on the basis that the allegations have been substantiated - and I will consider whether or not it was fair and reasonable for the Respondent to impose the Disciplinary Action Decision.
  1. [73]
    I note there is overlap between the issues, but for completeness I will deal with each of the issues in turn.

Was the process utilised fair and reasonable?

  1. [74]
    Mr Pflaum set out several reasons as to why he considered the process undertaken to be unfair and unreasonable.[75] 
  1. [75]
    With respect to his view that Allegation Two (c) should have been "redirected to the region or the school as per standard process",[76] Mr Pflaum submitted that:

In relation to the incident with Ms Robb, I have already indicated that both her and I were victims of a toxic workplace culture that led to unnecessary conflict and a siege mentality.  I regret what I did, I brought it to my supervisor's attention an instance (Ms Robb) where I got it wrong in a response to an action that a group of colleagues had taken in not consulting and immediately sought to rectify.  Rather than support the restorative process, my workplace chose to use this to compile a list of complaints from ones they had conspired to collect earlier, many of which were unsubstantiated …"[77]

  1. [76]
    Mr Pflaum stated that the Department has "allowed discrimination and prejudicial conduct in investigating and judging me for what could be considered as communication and conflict, better managed at school level."[78]  Mr Pflaum's view is that "… once the large majority (of allegations) were found to be unsubstantiated, some with no evidence at all, I should have been returned to my work and the remaining allegations progressed how they should have been in the first place, referred back to the school to manage."[79]
  1. [77]
    With respect to Mr Pflaum's contention that the matter ought to have been "redirected" to local management, that is a curious proposition in circumstances where he had also made several complaints about his alleged treatment by the Principal.  Mr Pflaum complained that the Principal treated him unfairly and excluded him because he was German, not part of the Queensland Association of Secondary School Principals, and his office was located away from the other Deputy Principals.  If that were so, I would consider it fairer to have the matter addressed by impartial departmental officers, external to the school.  That is what indeed occurred.
  1. [78]
    Another reason why the matter could not be "redirected" locally was that the Decision Maker believed it sufficiently serious to warrant a disciplinary process.  It was open to her to determine that management action was not appropriate here, after consideration of the mandatory factors set out at cl 7.2 of Directive 05/23.  Those reasons were sound and have not been disturbed here.
  1. [79]
    Secondly, Mr Pflaum believed that the workplace investigation process should not have progressed because positive performance management principles were not followed.[80]  Numerous allegations of poor conduct were made against Mr Pflaum by colleagues and parents of students at the school.  Self-evidently, an investigation occurred to gather information from witnesses, complainants and Mr Pflaum himself.  If a workplace investigation had not taken place, several of the allegations against Mr Pflaum would not have been found to be 'unsubstantiated'.  That was to Mr Pflaum's benefit, not disadvantage.
  1. [80]
    Clearly, anyone can make an allegation - but that must be assessed on the evidence as to whether it is more likely than not to have occurred 'on the balance of probabilities'.  That is the role of the decision maker, informed by the investigation undertaken.
  1. [81]
    The practice of employing positive performance management before the allegations were tested in an investigation would presume the conduct alleged had occurred.  That would be to prejudge the matter.  Appropriately, that was not the case here. 
  1. [82]
    Directive 05/23 provides that a chief executive must not take disciplinary action against an employee for a matter relating to their performance until they have complied with the positive performance management directive.[81]  The Decision Maker noted though that the Disciplinary Finding Decision pertained to Mr Pflaum's conduct, not work performance. 
  1. [83]
    Directive 05/23 contains the definition of management action (emphasis added):

Management action is independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance.  Following a disciplinary finding…management action can accompany or substitute for disciplinary action.  If appropriate, management action can replace an ongoing disciplinary process at any stage.  While not limited, management action is predominantly focused on corrective action.

  1. [84]
    In this case, following the Disciplinary Finding Decision, the Decision Maker decided to apply the requirement for Mr Pflaum to participate in training.  That direction was a practical support for Mr Pflaum that was predominantly focused on corrective action.  As envisaged in the definition above, it accompanied a Disciplinary Action Decision to transfer Mr Pflaum and reduce his remuneration for 12 months.
  1. [85]
    For those reasons, I consider that the Decision Maker has complied with the terms of Directive 05/23.
  1. [86]
    With respect to Mr Pflaum's contention that the principal compiled a 'running record' of incidents that were not discussed with him,[82] I agree that is regrettable if it occurred as Mr Pflaum said it did.  Clause 4.7 of Directive 05/23 encourages managers to undertake early intervention to address unacceptable conduct because it provides the best opportunity for: an end of the conduct; early resolution; preservation of working relationships; and avoiding an unnecessary and disproportionately protracted dispute.  That object was certainly defeated in this case.  However, my observation as to what may be improved in future does not deflect responsibility from Mr Pflaum as a Deputy Principal, who should have a clear understanding of the standard of conduct expected of a senior leader and longstanding departmental employee.
  1. [87]
    Further, Mr Pflaum asserted that he had not been provided with procedural fairness.  The chronology contained at [13] above detailed the process undertaken to hear Mr Pflaum ahead of any decision being made, in accordance with Directive 05/23. 
  1. [88]
    The First Show Cause notice dated 17 October 2022 afforded Mr Pflaum 14 days[83] to respond as to why disciplinary findings should not be made against him in relation to the allegations.  He was reminded of confidentiality requirements and the process whereby he could contact the nominated departmental officer "if you believe you need to contact any other person".[84]  Mr Pflaum responded to the First Show Cause notice on 31 October 2022.
  1. [89]
    The Second Show Cause notice dated 2 February 2023 afforded Mr Pflaum 7 days[85] to respond to the disciplinary findings and proposed disciplinary action.  Once again, confidentiality requirements were mentioned and Mr Pflaum was "reminded also of the direction not to discuss this matter with your work colleagues or any person likely to have information relevant to the allegations against you apart from your union, legal representative or support person without seeking my prior consent."[86]
  1. [90]
    That correspondence also explained Mr Pflaum's appeal rights to the QIRC (including timeframes) if he believed the Decision Maker's decision to find Allegations Two and Three substantiated is unfair and unreasonable.  Mr Pflaum did not appeal the disciplinary finding decision (until filing this appeal on 30 June 2023).
  1. [91]
    On 17 February 2023, Mr Pflaum responded to the Second Show Cause notice. In that correspondence, Mr Pflaum again disputed the Disciplinary Finding Decision because he believed it was "relevant to the severity of the disciplinary penalty against me."  Notwithstanding that, Mr Pflaum did accept the proposed imposition of a disciplinary transfer in writing at that time.  His efforts were focused on arresting the proposed demotion from Deputy Principal to Head of Department, setting out reasons why he considered that penalty to be too harsh.
  1. [92]
    On 9 June 2023, the Decision Maker then advised of her Disciplinary Action Decision.  After evidently carefully considering Mr Pflaum's arguments against demotion, the Decision Maker determined to instead impose a lesser disciplinary penalty of 'reduction in remuneration for 12 months' though maintaining the position of Deputy Principal.
  1. [93]
    With respect to the direction to complete training, the Decision Maker appropriately went on to explain when that would occur, what the training would encompass, how many hours it would be and who would contact Mr Pflaum to arrange it.[87] 
  1. [94]
    Despite the serious nature of the substantiated allegations against Mr Pflaum, the Decision Maker's consideration of his response to the proposed disciplinary action succeeded in averting Mr Pflaum's demotion to a lower classification and his retention of a Deputy Principal position.
  1. [95]
    Mr Pflaum also complained that there was inadequate consideration of his Human Rights.[88]  I do not agree that was the case.  In her correspondence to Mr Pflaum, the Decision Maker acknowledged the decision: may limit his human rights; particularised what human rights may be limited; how they may be limited; and the impact that may have on him.  The Decision Maker then proceeded to explain why any limitation on Mr Pflaum's human rights is reasonable and justified.  The Decision Maker then concluded that to be "legitimate purposes which outweigh the potential impact on your human rights" and that her "decision was therefore compatible with human rights."[89]  The entirety of that consideration appeared under the heading "Human Rights".  For those reasons, I believe the Decision Maker's consideration of Mr Pflaum's human rights has been clearly demonstrated.
  1. [96]
    Contrary to Mr Pflaum's assertion, I find that the process used did afford him natural justice, in accordance with the provisions of Directive 05/23.
  1. [97]
    Mr Pflaum also submitted that he was not afforded the presumption of innocence, as shown by the decision to remove him immediately from the school.[90]  Whilst this appeal cannot be made against the March 2021 decision to place Mr Pflaum on alternative duties at Regional Office, I do note that the correspondence clearly stated that "no finding has been made, nor will be made, in relation to the allegations against you until such time as you have been afforded an opportunity to respond" but that the delegate decided that Mr Pflaum must not remain at the school until the allegations about his conduct had been resolved because "I hold concerns regarding the safety and wellbeing of staff, students and parents of Lockyer District State High School."[91]  I would observe that there were numerous allegations made by various people about Mr Pflaum's workplace conduct.  In my view, it was fair and reasonable for the Department to decide to place Mr Pflaum on alternative duties at Regional Office whilst investigation into those matters occurred.  In the normal course, that is done to preserve the integrity of that process and to safeguard the colleagues, parents and students who had made allegations.  The duty to safeguard complainants needs to be balanced with the duty to Mr Pflaum - the Department did so by not suspending Mr Pflaum, but instead arranging a placement for him at Regional Office so he could continue to work and be paid, whilst the required process was undertaken.  I find that approach was fair and reasonable.
  1. [98]
    Mr Pflaum also complained that the "language in both letters is personal and offensive", as it contained "blanket judgements on my professional character and make statements that are simply not true (eg that I was provided the opportunity to provide my own witnesses) …"[92] 
  1. [99]
    I have carefully reviewed the numerous correspondence sent to Mr Pflaum in the course of this process.  While direct, I consider that the language and tone of the written materials are entirely appropriate.  It is not personal and offensive.  The "blanket judgements" on Mr Pflaum's "professional character" are the decision maker's reasons as to why she preferred the version of events supplied by one (in some cases, several) witness over Mr Pflaum's account.  In assessing the material available to her, the Decision Maker must be satisfied 'on the balance of probabilities' that the allegation occurred.  As the Decision Maker, she is required to provide adequate reasons for the conclusions reached.  Comprehensive reasoning of a very high standard was contained in the correspondence issued to Mr Pflaum in the course of this process.  That is commendable, as it enabled Mr Pflaum to understand why the Decision Maker found some allegations against him to be substantiated and others not.  In doing so, Mr Pflaum had the opportunity to appeal the Disciplinary Finding Decision if he did not accept that to be correct.  He did not do so.  I have also observed that the Decision Maker provided an equally thorough explanation as to why she determined to impose the particular Disciplinary Action Decision, that is subject of this appeal.  It is apparent that Mr Pflaum continues to resist the disciplinary findings, and strenuously objects the Decision Maker's assessment.  However, that matter has been finalised and it is not open to Mr Pflaum to continue to reagitate it.  The time to appeal that particular element has passed.
  1. [100]
    Mr Pflaum stated that he was not permitted to contact colleagues to provide evidence in support, as all communication emphasised the importance of confidentiality.[93]  Mr Pflaum submitted:

I have not had the opportunity of seeking any evidence as I am unable to contact my colleagues.  While Ms Borger indicates that I did not seek permission, no-one has ever indicated prior to this that this option was available to me, on the contrary it was emphasised that I shall not make contact with any one in a state school and I have not had adequate time to seek permission and find statements from people …[94] 

  1. [101]
    The time for Mr Pflaum to have sought any such evidence from colleagues was before the Decision Maker made the Disciplinary Finding Decision, that was provided to him on 2 February 2023.  Relevantly then, I note that the Decision Maker's earlier correspondence to Mr Pflaum, inviting him to respond as to why disciplinary findings should not be made, does not deny Mr Pflaum the opportunity to contact colleagues. 
  1. [102]
    Instead, the correspondence explained what is not to be done, the reasons why that is so, the possible consequences of doing so, who to contact if Mr Pflaum does need to contact a colleague, and his ability to have a support person or union to represent him.  The Decision Maker's correspondence expressly stated (emphasis added):[95]

The investigations and this disciplinary process are confidential.  You are directed not to make comments on social media, or to discuss these matters with you work colleagues or any person likely to have information relevant to the allegations against you apart from your union, legal representative or support person.  This is to ensure the integrity of the discipline process.  If you believe you need to contact any other person, please make this request to Ms Khan so that it can be determined whether this is appropriate.  You may be supported by a person of your choosing and/or represented by an industrial representative of a union to which you are a member, provided the support person:

  1. a.
    is not otherwise involved in the disciplinary process (for example, as a subject employee or witness)
  1. b.
    does not provide direct evidence on your behalf.

…

Further, I invite you to contact Ms Jarunee Khan, A/Principal Advisor, Performance and Conduct, either by email at … or on telephone … should you have any queries in regard to the content of this letter.

  1. [103]
    Mr Pflaum asserted that the decision maker was wrong to consider that a past investigation in 2013 indicated a 'pattern of behaviour.'[96]  What the Decision Maker's correspondence actually said was (emphasis added):[97]

I also acknowledge that you have a previously unblemished disciplinary history.  However, whilst formal disciplinary action has not been taken against you, I am aware that in 2013 following an investigation into your conduct which related to alleged workplace harassment of a number of colleagues, you were advised that the investigators identified issues with the manner in which you engage and communicate with staff.  I therefore consider that following the 2013 matter you should have been even more aware of the obligations on you to comply with departmental expectations.

  1. [104]
    I have referred to the provisions of Directive 05/23, regarding the factors that a chief executive should consider in proposing appropriate and proportionate disciplinary action.  Clause 9.5(d)(iv) of Directive 05/23 includes recommended consideration of "the employee's overall work record including previous management interventions and/or disciplinary proceedings" and cl 9.5(d)(ii) refers to "the employee's classification level and/or expected level of awareness about their performance or conduct obligations".  Relevantly, the Decision Maker referred to the earlier 2013 investigation into conduct allegations made against Mr Pflaum because it was one factor that informed her decision as to the "appropriate and proportionate disciplinary action"[98] to be imposed.  I note that the Decision Maker's correspondence contained her consideration of the other relevant factors in Directive 05/23 provisions as well.  She has provided a most detailed explanation as to her reasons for deciding the disciplinary action to be taken in this case.  I commend that approach.
  1. [105]
    Mr Pflaum submitted that he was assured of support, but it was not provided.  I note that the correspondence issued by the Department invariably contains detailed information about the availability of confidential, one-on-one support that is available for all Principals, Deputy Principals and Heads of Campus (school leaders), together with the telephone number and email address for making an initial appointment.  It was noted in the correspondence issued to Mr Pflaum in the course of this process that "This service is additional to the Department's external Employee Assistance Program, also provided by LifeWorks, which also offers free, confidential counselling to all departmental employees.  Appointments with LifeWorks can be made directly by calling 1800 …"[99]  In my view, Mr Pflaum was consistently reminded of the support available to him during the course of this process.  His complaint is not made out.
  1. [106]
    Mr Pflaum stated that the Department's actions constitute "a failure in their duty of care to me in providing a safe workplace where I could undertake my duties, which has resulted in significant psychological and reputational harm …"[100]  For the reasons explained above, the Department acted appropriately in providing Mr Pflaum with alternative duties at Regional Office whilst the allegations were investigated, given the nature of the complaints against him and the need to also consider the risk to others in the school community.
  1. [107]
    While Mr Pflaum complained that the Department has expended a lot of resources to investigate allegations that have "largely been found to be unsubstantiated",[101] it remains the case that Allegation Two (containing four separate incidents of "inappropriate and unprofessional behaviours towards colleagues and parents of students at the school) and Allegation Three (failure to comply with a reasonable direction, by interacting with a colleague in an unprofessional manner) were substantiated by the Decision Maker in her disciplinary finding decision.  It seems then that the Department appropriately determined that the numerous allegations made about Mr Pflaum's conduct should be investigated.  Where allegations are made, investigated and found to be 'unsubstantiated', it means there is insufficient evidence to do so 'on the balance of probabilities'. 
  1. [108]
    Mr Pflaum asserted that his treatment throughout the process amounts to workplace bullying because he was provided with "little meaningful work" and "put into an open office area in Regional Office".[102]  Mr Pflaum submitted that "… due to the extended timeframe and lack of communication from the Integrity and Ethics team about timelines, regional office staff have been unsure of what to allocate me in relation to work and how my capabilities can best be used."[103] 
  1. [109]
    Section 272 of the IR Act states (emphasis added):
  1. When is an employee bullied in the workplace
  1. (1)
    An employee is bullied in the workplace if –
  1. (a)
    while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards –
  1. (i)
    the employee; or
  1. (ii)
    a group of employees of which the employee is a member; and
  1. (b)
    that behaviour creates a risk to the health and safety of the employee.
  1. (2)
    To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
  1. [110]
    Placing Mr Pflaum in an open office work area at Regional Office does not constitute bullying but rather is a practical way to manage any potential risk to staff members at that workplace in circumstances where it has been alleged by numerous complainants that Mr Pflaum acted inappropriately and unprofessional towards them. 
  1. [111]
    In my view, the Decision Maker's determination to utilise Mr Pflaum on alternative duties in Regional Office was the correct course here.[104]  In the circumstances of this matter, that placement fulfils the test of "reasonable management action carried out in a reasonable manner".  It is not bullying.
  1. [112]
    Similarly, it is unreasonable for Mr Pflaum to contend that the investigation and disciplinary process can be arranged to precise timeframes.  Factors such as witnesses' availability for interview, unplanned absences, time taken to analyse and synthesise information gathered and prepare a report, other competing demands and priorities of the delegate, and time taken to consider and respond to the various submissions, can all combine to extend the timeframes for these processes.  As Mr Pflaum states he was told by Regional Office staff, the timeframes he experienced were not unusual.  It is an important process to get right.  The bigger concern would have been if there was an unseemly rush with either the investigation or discipline process that led Mr Pflaum to believe that he had not been heard, or his responses had not been genuinely considered by the Decision Maker - that was not the case here. 

Do any of the 'other matters' raised make the Disciplinary Action Decision unfair and unreasonable?

  1. [113]
    With respect to Mr Pflaum's remaining complaints about other matters, they are irrelevant to the question of whether the Disciplinary Action Decision was fair and reasonable.  An assortment of grievances harboured by Mr Pflaum over a lengthy period has no bearing on the matter at hand. 
  1. [114]
    With respect to the litany of those other matters raised by Mr Pflaum, I concur with the Respondent that Mr Pflaum is entitled to raise such issues "utilising the relevant departmental policies and procedures as may be appropriate."[105] 

Was the Disciplinary Action Decision fair and reasonable?

  1. [115]
    Clause 9.4(e) of Directive 05/23 provides that:

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

  1. [116]
    Directive 05/23 makes it clear that the delegate is not obligated to take action in response to a substantiated allegation. 
  1. [117]
    However, cls 7.1 and 7.2 of Directive 05/23 are relevant in determining whether conduct is sufficiently serious to warrant disciplinary action. Clause 7.2(h) pertains to circumstances in which a contravention of a relevant standard of conduct under section 91(1)(h) of the PS Act is likely to be considered "sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter."  Clause 7.2 goes on to outline considerations in determining whether to commence a disciplinary process, including:
  • The seriousness of the conduct;
  • Whether the matter is a Public Interest Disclosure (PID);
  • Whether the chief executive has "reasonable concerns about the employee's potential for modified behaviour through management action …"; and
  • "Whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector …".
  1. [118]
    The Decision Maker decided to discipline Mr Pflaum because she was satisfied that the substantiated allegations were "sufficiently serious to warrant disciplinary action".[106]  Under the express terms of cl 7.2(b) of Directive 05/23 and s 91(1)(h)-(2) of the PS Act, management action alone could not be considered an appropriate response in the circumstances. 
  1. [119]
    Further, s 93(1) of the PS Act provides that (emphasis added):

In disciplining a public sector employee, the employee's chief executive may take the disciplinary action, or order the disciplinary action be taken, against the employee that the chief executive considers reasonable in the circumstances.

  1. [120]
    The seriousness of Mr Pflaum's conduct is one of a few relevant considerations to determine whether to commence a disciplinary process pursuant to Directive 05/23.
  1. [121]
    I will now proceed to consider whether the disciplinary action decision was "reasonable in the circumstances". 
  1. [122]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[107]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

  1. [123]
    Clause 9.5(d) of Directive 05/23 contains the factors to be considered "in proposing appropriate and proportionate disciplinary action."  Those factors are as follows:
  • the seriousness of the disciplinary finding
  • the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  • whether extenuating or mitigating circumstances applied to the employee's actions
  • the employee's overall work record including previous management interventions and/or disciplinary proceedings
  • the employee's explanation (if any)
  • the degree of risk to the health and safety of employees, customers and members of the public
  • the impact on the employee's ability to perform the duties of their position
  • the employee's potential for modified behaviour in the work unit or elsewhere
  • the impact a financial penalty may have on the employee
  • the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  • the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding.

Disciplinary Action Decision

  1. [124]
    The Disciplinary Action Decision subject of this appeal is:

I have decided to impose a Disciplinary Transfer, a reduction of remuneration from Deputy Principal [DP1-03] to [DP1-02] for a period of 12 months, and a direction that you undertake professional coaching support sessions / workplace behaviour training sessions under sections 92 and 93 of the PS Act.[108]

  1. [125]
    That is different to that initially proposed by the Decision Maker on 2 February 2023:
  • a disciplinary transfer to a school within 50 minutes' drive of your residential address…unless an alternative geographical area is agreed; and
  • a demotion from the position of Deputy Principal [DP1-03] to the position of Head of Department [HD02-03]; with a restriction on applying for deputy principal roles for a period of 12 months.[109]
  1. [126]
    On 17 February 2023, Mr Pflaum responded to the proposed disciplinary action.  He said emphasis added):

I accept the logic of a disciplinary transfer being imposed, but I do not accept that a demotion from DP to HOD is appropriate and will provide my submissions as to why this proposed penalty is too harsh.[110]

…

In conclusion, I accept that a transfer is necessary but submit that a demotion to Head of Department [H02] is disproportionate to the offences and not in the public interest.  I have years of relevant experience in leadership roles and this experience will be wasted should I now be forced to step back into a HOD role.

If the decision maker feels that some extra sanction is required in addition to a disciplinary transfer, I submit that a reprimand is more proportionate to the allegations that have been substantiated.[111]

  1. [127]
    While Mr Pflaum submitted that the Disciplinary Action Decision was not fair and reasonable, I have earlier observed that the terms of Directive 05/23 and PS Act support that management action alone is not an appropriate response in these circumstances. 
  1. [128]
    I will now consider each element of the Disciplinary Action Decision in turn:

Disciplinary transfer

  1. [129]
    The Decision Maker advised Mr Pflaum that:

Darling Downs South West Region has been consulted in regard to the transfer location and advised that currently there is no suitable permanent vacancy available for you.  However, the Region is able to transfer you temporarily to Highfields State School during which time, you will be supported to return to the school environment while the Region continues to find a suitable transfer location for you.[112]

  1. [130]
    Having earlier accepted that a transfer was "logical" and "necessary"[113] on 17 February 2023, Mr Pflaum has now submitted, in the course of this appeal, that the transfer decision is unfair and unreasonable.[114]  Mr Pflaum stated (emphasis added):

The circumstances of my immediate removal from the school, the inability to contact any of my colleagues, some of whom were friends, to explain, removing my social supports, placement at regional office where for a period of time I spent days with no-one talking to me resulting in being treated for depression, should be considered enough of a consequence for the one incident that I have agreed occurred.  To impose a disciplinary transfer is unfair and unreasonable.[115]

  1. [131]
    With respect to Mr Pflaum's arguments above, I note that most (if not all) of those conditions were present at the time he had earlier accepted the transfer decision.[116]  In the same (or similar) set of circumstances, I consider it is fundamentally unreasonable for Mr Pflaum to first agree with a transfer on 17 February 2023 - only to object to it four months later in this appeal. 
  1. [132]
    While Mr Pflaum has referred to his placement at regional office as a sufficient penalty or 'consequence' for "the one incident that I have agreed occurred" - his experience at regional office does not appear to have been altogether negative.  Mr Pflaum submitted that:

Working at regional office, I have had the opportunity to work with people who are respectful and use a strengths-based approach.  However due to the extended timeframe and lack of communication … regional office staff have been unsure of what to allocate to me in relation to work and how my capabilities can best be used.[117] 

  1. [133]
    Mr Pflaum stated that he had been assured by "a number of people" there that the timeframe for the investigation and thence disciplinary process to run its course was "normal".[118]  Mr Pflaum talked most positively about his motivation, exceptional results and consistent feedback in this period, despite the circumstances of his placement.[119] 
  1. [134]
    What remains then of Mr Pflaum's complaints about his location at regional office seemingly are that "for a period of time I spent days with no-one talking to me" (presumably when he was new to that workplace), that he disliked being "put into an open office area in Regional Office" and that he was "immediately removed" from the school (that he called a "toxic" work environment, in which he had a series of unfortunate interactions with several different people, in any case). 
  1. [135]
    The other aspect of Mr Pflaum's position that I must disturb is that the Disciplinary Action Decision pertains only to "the one incident that I have agreed occurred".  It plainly does not.  The Disciplinary Action Decision is made to address all allegations that the Decision Maker had found to be substantiated, in the earlier disciplinary finding decision. 
  1. [136]
    For those reasons, I find that the 'disciplinary transfer decision' element of the Disciplinary Action Decision was fair and reasonable.

Reduction in remuneration for 12 months

  1. [137]
    Mr Pflaum did not accept the proposed demotion from Deputy Principal to Head of Department, stating that penalty was "too harsh" and "disproportionate" to the "offences" and "not in the public interest" because his long experience in leadership positions would be "wasted". 
  1. [138]
    Instead, Mr Pflaum suggested an alternative penalty of 'a reprimand', rather than a demotion to the position of Head of Department.[120] 
  1. [139]
    The 9 June 2023 correspondence comprehensively explains the reasons why the Decision Maker did not consider Mr Pflaum's alternative penalty suggestion of 'a reprimand' was sufficient.[121]  The decision letter painstakingly demonstrates careful attention to the various factors that ought to inform "appropriate and proportionate disciplinary action", as contained in Directive 05/23.[122] 
  1. [140]
    The Decision Maker appears circumspect about Mr Pflaum's potential to modify his behaviour through additional training alone, in circumstances where he still continues to reagitate the disciplinary findings decision - and deflect his repeated conduct in relation to several colleagues and parents of students.  I consider that is persuasive of a need for a disciplinary action to deter future behaviour of a similar kind and to aid in the potential for modified behaviour. I agree that training would serve to assist Mr Pflaum to remain in as a Deputy Principal, but something more is warranted here.
  1. [141]
    It has been noted that Mr Pflaum's commitment to the Department has stretched over 27 years, including substantial rural and remote service, and acting as Principal on occasions.  That is most commendable. 
  1. [142]
    While the Decision Maker acknowledged that Mr Pflaum had "a previously unblemished disciplinary history" she noted a previous investigation into alleged conduct towards colleagues in 2013.[123] 
  1. [143]
    Further to the above, Mr Pflaum's role as a Deputy Principal, longstanding departmental employee and expected level of awareness are relevant considerations that support the imposition of a disciplinary action rather than management action.
  1. [144]
    Directive 05/23 also provides that the delegate considers the degree of risk to the health and safety of employees, customers and members of the public in determining an appropriate disciplinary action. Mr Pflaum's actions clearly disregarded the health and safety of his colleagues. That further supports the imposition of a disciplinary action.
  1. [145]
    In the end, the Decision Maker concluded that Mr Pflaum's alternative disciplinary penalty proposal was not accepted because merely a transfer and reprimand would not "adequately reflect the seriousness of your conduct or would be appropriate in the circumstances."[124]
  1. [146]
    With respect to the range of disciplinary actions available,[125] the Decision Maker ultimately settled on a different disciplinary action that "is objectively less onerous than the original action proposed".[126] After careful consideration of Mr Pflaum's response to the proposed disciplinary action, the Decision Maker decided not to pursue the earlier proposal to demote him from 'Deputy Principal' to 'Head of Department'. 
  1. [147]
    It is clear by the reasoning contained within the 9 June 2023 correspondence[127] that the Decision Maker has thoroughly calculated, and particularised, the financial repercussions of a reduction in remuneration in various scenarios.  That is commendable in the absence of Mr Pflaum providing any particularised submissions, in respect of "the impact the proposed demotion would have on (him) financially."
  1. [148]
    In communicating her decision about the Disciplinary Action Decision in her letter of 9 June 2023,[128] the Decision Maker took into account that Mr Pflaum had received "positive feedback in relation to performance" whilst at regional office and that "no complaints or concerns have been raised regarding your interactions with your colleagues in the workplace".  The Decision Maker said that showed Mr Pflaum was "capable of understanding and complying with departmental expectations" regarding conduct - and was one of the pivotal arguments that appeared to have persuaded her to afford Mr Pflaum "a final opportunity to regain my trust and demonstrate to me that you can modify your conduct moving forward and model the behaviour expected of a Deputy Principal."[129]
  1. [149]
    For those reasons, I find that the 'reduction in remuneration for 12 months' element of the Disciplinary Action Decision was fair and reasonable.

Training

  1. [150]
    In her 9 June 2023 correspondence, the Decision Maker stated:

… to support you in understanding and meeting your obligations moving forward as a Deputy Principal with the Department, I also consider it appropriate to implement management measures to assist you in your professional development, with the aim of improving your ability to develop productive and collegiate working relationships with your colleagues and the community at large (including parents of students).  I have therefore decided to direct you to attend professional coaching support sessions and/or attend workplace behaviour training sessions which will focus on respectful and appropriate behaviour in the workplace.[130]

  1. [151]
    I endorse the Decision Maker's decision to support Mr Pflaum to improve his workplace behaviours through a proactive training strategy.  That is appropriate because Mr Pflaum will continue as a Deputy Principal in a new school.  It is important that Mr Pflaum succeeds in establishing positive professional relationships with those in a new school community. 
  1. [152]
    The common theme of the disciplinary findings indicate to me that such support is a critical guard to any reoccurrence.  I note that the Decision Maker has made clear that "any future substantiated allegations of misconduct and/or a breach of the Code of Conduct or Standard of Practice will be viewed very seriously and may result in the termination of your employment."[131] 
  1. [153]
    In my view, it is fair-minded and appropriate for the Department to support any employee on (or approaching) their 'last chance' with quality, targeted training.  I would encourage Mr Pflaum to embrace such support.
  1. [154]
    For those reasons, I find that the 'training' element of the Disciplinary Action Decision was fair and reasonable.
  1. Conclusion
  1. [155]
    As the appeal against the Disciplinary Finding Decision was filed about four months out of time, with inadequate explanation, I have declined to hear that aspect of the appeal.
  1. [156]
    The Disciplinary Action Decision subject of this appeal is the Decision Maker's determination to impose a Disciplinary Transfer, a reduction of remuneration from Deputy Principal [DP1-03] to [DP1-02] for a period of 12 months, and a direction that training be undertaken.  In consideration of all the circumstances of this matter, I find that determination of the appropriate and proportionate disciplinary action to be fair and reasonable. 
  1. [157]
    I order accordingly.
  1. Orders:
  1. Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, I decline to hear the appeal against the Disciplinary Finding Decision.
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Disciplinary Action Decision appealed against is confirmed.

Footnotes

[1] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 11.

[2] Appeal Notice filed 30 June 2023, 1.

[3] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 5.

[4] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 17 October 2022, 1-2.

[5] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 10.

[6] Correspondence from Ms R. Borger, Executive Director, Integrity and Employee Relations, People, Department of Education to Mr M. Pflaum dated 9 June 2023, 2.

[7] Ibid.

[8] Respondent's submissions filed 18 July 2023, 1.

[9] Ibid Attachment 1.

[10] Ibid Attachment 2.

[11] Ibid Attachment 3.

[12] Ibid Attachment 4.

[13] Ibid Attachment 5.

[14] Industrial Relations Act 2016 (Qld) s 564(2).

[15] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547.

[16] Appellant's submissions filed 25 July 2023, 1.

[17] Appellant's submissions filed 25 July 2023, 2.

[18] Respondent's submissions filed 18 July 2023, [13].

[19] Ibid [28].

[20] House v The King (1936) 55 CLR 499, [2].

[21] (1995) 149 QGIG 777.

[22] Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 at 547.

[23] (1999) 163 QGIG 20.

[24] [2015] QIRC 138.

[25] Industrial Relations Act 2016 (Qld) s 3.

[26] (2009) 239 CLR 175.

[27] Ibid [30].

[28] Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189.

[29] Susan Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129.

[30] Ibid.

[31] [2014] QIRC 012.

[32] Ibid [25].

[33] Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556.

[34] Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300.

[35] The Disciplinary Action Decision correspondence.

[36] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 3.

[37] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 3-5.

[38] Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232.

[39] [2010] ICQ 35.

[40] Ibid [6].

[41] Industrial Relations Act 2016 (Qld) s 562B(3).

[42] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[43] Industrial Relations Act 2016 (Qld) s 567(2).

[44] Respondent's submissions filed 18 July 2023, [14].

[45] With respect to the disciplinary finding decision for Allegation 3.

[46] With respect to the disciplinary finding decision for Allegation 2.

[47] Appeal Notice filed 30 June 2023, Attachment 1, 1.

[48] Ibid 2.

[49] Ibid.

[50] Ibid 4.

[51] Ibid 2.

[52] Ibid.

[53] Ibid.

[54] Ibid 1.

[55] Ibid 6.

[56] Ibid.

[57] Ibid 3.

[58] Ibid 2-3.

[59] Ibid 3.

[60] Ibid 4.

[61] Ibid 5.

[62] Ibid 4.

[63] Ibid 5.

[64] Appeal Notice filed 30 June 2023, Attachment 1, 3.

[65] Ibid.

[66] Ibid 5.

[67] Ibid 1.

[68] Ibid 3.

[69] German.

[70] Appeal Notice filed 30 June 2023, Attachment 1, page 4; Appellant's submissions filed 11 July 2023, page 2

[71] Appellant's submissions filed 11 July 2023, 2.

[72] Ibid.

[73] Appellant's submissions filed 11 July 2023, 2.

[74] Appeal Notice filed 30 June 2023, Attachment 1, 5.

[75] See paragraph [70](2) of this Decision.

[76] Appeal Notice filed 30 June 2023, Attachment 1, 2.

[77] Appellant's submissions filed 25 July 2023, 1.

[78] Appeal Notice filed 30 June 2023, Attachment 1, 4.

[79] Appellant's submissions filed 11 July 2023, 2.

[80] Appeal Notice filed 30 June 2023, Attachment 1, 2.

[81] Directive 05/23 Discipline cl 4.9.

[82] Appeal Notice filed 30 June 2023, Attachment 1, 1.

[83] Directive 05/23 Discipline cl 9.3(e); Correspondence from Ms R. Borger to Mr M. Pflaum dated 17 October 2022, 3.

[84] Correspondence from Ms R. Borger to Mr M. Pflaum dated 17 October 2022, 4.

[85] Directive 05/23 Discipline cl 9.5(f); Correspondence from Ms R. Borger to Mr M. Pflaum dated 2 February 2023, 3.

[86] Correspondence from Ms R. Borger to Mr M. Pflaum dated 2 February 2023, 3.

[87] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 12.

[88] Appeal Notice filed 30 June 2023, Attachment 1, 6.

[89] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 13.

[90] Appeal Notice filed 30 June 2023, Attachment 1, 6.

[91] Correspondence from Ms J. Valentine, Executive Director, Integrity and Employee Relations, Department of Education to Mr M. Pflaum dated 24 March 2021, 1.

[92] Appeal Notice filed 30 June 2023, Attachment 1, 3.

[93] Appeal Notice filed 30 June 2023, Attachment 1, 2-3.

[94] Appellant's submissions filed 11 July 2023, 1.

[95] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 17 October 2022, 4-5.

[96] Appeal Notice filed 30 June 2023, Attachment 1, 3.

[97] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 9.

[98] Directive 05/23 Discipline cl 9.5(d).

[99] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, page 13; Correspondence from Ms R. Borger to Mr M. Pflaum dated 17 October 2022, 5.

[100] Appeal Notice filed 30 June 2023, Attachment 1, 4.

[101] Ibid 5.

[102] Ibid.

[103] Ibid.

[104] Correspondence from Ms J. Valentine to Mr M. Pflaum dated 24 March 2021, 1.

[105] Respondent's submissions filed 18 July 2023, [29].

[106] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 1.

[107] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[108] Correspondence from Ms R. Borger, Executive Director, Integrity and Employee Relations, People, Department of Education to Mr M. Pflaum dated 9 June 2023, 2.

[109] Correspondence from Ms R. Borger to Mr M. Pflaum dated 2 February 2023, 2.

[110] Correspondence from Mr M. Pflaum to Ms R. Borger dated 17 February 2023, 1.

[111] Ibid 6.

[112] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 11.

[113] See paragraph [88] of this Decision.

[114] Appellant's submissions filed 11 July 2023, 1.

[115] Ibid.

[116] 17 February 2023.

[117] Appeal notice filed 30 June 2023, 5.

[118] Ibid.

[119] Ibid. Although this sits somewhat awkwardly with Mr Pflaum's later submission that "little meaningful work provided to me" at Regional Office, as it would appear the two propositions cannot comfortably coexist.

[120] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 10.

[121] Pages 8-11 in particular.

[122] Directive 05/23 Discipline cl 9.5(d).

[123] Correspondence from Ms R. Borger to Mr M. Pflaum dated 9 June 2023, 11.

[124] Ibid 10.

[125] Public Sector Act 2022 (Qld) s 92(1).

[126] Directive 05/23 Discipline cl 9.6(c)(i).

[127] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 10-11.

[128] Correspondence from Ms R. Borger, Executive Director, Integrity and Enterprise Bargaining, Human Resources to Mr M. Pflaum dated 9 June 2023, 10.

[129] Ibid.

[130] Ibid 11.

[131] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Pflaum v State of Queensland (Department of Education)

  • Shortened Case Name:

    Pflaum v State of Queensland (Department of Education)

  • MNC:

    [2024] QIRC 50

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    26 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
Aon Risk Services Australia Limited v Australian National University (2009) 239 CLR 175
2 citations
Jump To
Cite 1 - (2009) 239 CLR 175
Cite 2 - (2009) 239 CLR 175
Breust v Qantas Airways Limited (1995) 149 QGIG 777
2 citations
Jump To
Cite 1 - (1995) 149 QGIG 777
Cite 2 - (1995) 149 QGIG 777
Briginshaw v Briginshaw (1938) 60 C.L.R 336
1 citation
Jump To
Cite 1 - (1938) 60 C.L.R 336
Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541
4 citations
Jump To
Cite 1 - (1996) 186 CLR 541
Cite 2 - (1996) 186 CLR 541
Cite 3 - (1996) 186 CLR 541
Cite 4 - (1996) 186 CLR 541
Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298
2 citations
Jump To
Cite 1 - (1995) 67 IR 298
Cite 2 - (1995) 67 IR 298
Erhardt v Goodman Fielder Food Services Ltd. (1999) 163 QGIG 20
3 citations
Jump To
Cite 1 - (1999) 163 QGIG 20
Cite 2 - (1999) 163 QGIG 20
Cite 3 - (1999) 163 QGIG 20
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lloyd v Department of Communities, Child Safety and Disability Services [2013] QIRC 129
1 citation
Jump To
Cite 1 - [2013] QIRC 129
Lockhart v Queensland Health [2014] QIRC 12
2 citations
Jump To
Cite 1 - [2014] QIRC 12
Cite 2 - [2014] QIRC 12
Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010
3 citations
Jump To
Cite 1 - [2002] 170 QGIG 1010
Cite 2 - [2002] 170 QGIG 1010
Cite 3 - [2002] 170 QGIG 1010
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Patterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232
2 citations
Jump To
Cite 1 - (1998) 159 QGIG 232
Cite 2 - (1998) 159 QGIG 232
Piggott v State of Queensland [2010] ICQ 35
2 citations
Jump To
Cite 1 - [2010] ICQ 35
Cite 2 - [2010] ICQ 35
Susan Lloyd v State of Queensland (Department of Communities, Child Safety and Disability Services) [2015] QIRC 138
2 citations
Jump To
Cite 1 - [2015] QIRC 138
Cite 2 - [2015] QIRC 138
Tonia Shelley v McRoberts Agency [2009] 190 QGIG 189
2 citations
Jump To
Cite 1 - [2009] 190 QGIG 189
Cite 2 - [2009] 190 QGIG 189

Cases Citing

Case NameFull CitationFrequency
Patterson v State of Queensland (Queensland Corrective Services) (No. 2) [2024] QIRC 2872 citations
TB v State of Queensland (Queensland Health) [2025] QIRC 562 citations
1

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