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Dickerson v State of Queensland (Queensland Health)[2025] QIRC 163

Dickerson v State of Queensland (Queensland Health)[2025] QIRC 163

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dickerson v State of Queensland (Queensland Health) [2025] QIRC 163

PARTIES:

Dickerson, Robert

Appellant

v

State of Queensland (Queensland Health)

Respondent

CASE NO:

PSA/2024/145

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

26 June 2025

MEMBER:

Pratt IC

HEARD AT:

On the papers

ORDERS:

  1. The Appeal is dismissed.
  1. The Decision is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – FAIR TREATMENT – where appellant employed by respondent as safety and response officer at QEII Jubilee Hospital  – where respondent made decision to substantiate allegation of misconduct – where respondent alleged that appellant initiated unwelcomed or unsolicited physical contact and conversations of a sexual nature with colleague – consideration of ss 531(2)-(3), 562B, 562C of the Industrial Relations Act 2016 – consideration of ss 130, 131(1)(d), 133(d) of the Public Sector Act 2022 – consideration of the meaning of 'fair and reasonable' – consideration of the rules of evidence in this commission where the decision to substantiate allegations may have partly been on the basis of prior findings against the appellant – held prior findings had no obvious role in substantiation of allegation – held that even if prior findings had role in substantiation of allegations, the prior findings could fairly be relied upon as similar fact or propensity evidence – held that there was unlikely to be any collusion between witnesses as alleged by the appellant – held decision-maker was justified in relying on witness accounts despite issues with hearsay and similar fact evidence – held open to decision-maker to substantiate the allegations – appeal dismissed – decision confirmed.

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 531(2),(3) 562B, s 562C

Public Sector Act 2022 (Qld) s 130, s 131(1)(d), s 133(d)

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

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

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

Gardiner v Land Agents Board (1976) 12 SASR 458

H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667

Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51

King v Workers' Compensation Regulator [2019] QIRC 134

Leigh v State of Queensland (Department of Education) [2025] QIRC 023

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23

Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763

O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534

Polizzi v Commissioner of Police (No. 2) [2017] WASC 166

Re Poochi and Minister for Immigration and Ethnic Affairs [1979] 25 AR 247.

R v Deputy Industrial Injuries Commissioner; Ex Parte Moore [1965] 1 QB 465

Schubert v State of Queensland (Queensland Health) [2024] QIRC 128

St Clair v Timtalla Pty Ltd & Anor [2010] QSC 296

Zanknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 140 ALR 701

Reasons for Decision

  1. [1]
    Mr Robert Dickerson ('Appellant') is a Safety and Response Officer employed by the State of Queensland (Queensland Health) ('Respondent') at the QEII Jubilee Hospital. The Appellant has been an employee of the Respondent since 14 October 2019. He appeals a decision made on 26 August 2024 by Ms Gillian Campbell, Executive Director, QEII Jubilee Hospital, on behalf of the Respondent substantiating an allegation of misconduct ('Allegation') made against the Appellant ('Decision').

The allegation

  1. [2]
    The Allegation arose from a complaint made on 13 May 2024 by one of the Respondent's other employees, Ms McGuigan, about an alleged incident on 12 May 2024.
  1. [3]
    The Appellant was suspended from duty on full pay from 30 May 2024. On 17 June 2024, Ms Angie Dobbrick, Acting Executive Director, QEII Jubilee Hospital, asked the Appellant to show cause in response to the Allegation, which was phrased this way:

On or about 12 May 2024 you demonstrated inappropriate behaviour when you initiated unwelcomed or unsolicited physical contact and conversations of a sexual nature Ms (sic) Lara McGuigan, Administration Officer, ED Administration, QEII Jubilee Hospital.

  1. [4]
    The particulars of the Allegation were, in summary, that the Appellant commented on Ms McGuigan's tanned skin before moving closer to Ms McGuigan and stroking her hand and arm. The evidence founding this allegation was from CCTV footage of the alleged incident and from the witness accounts of Ms McGuigan, Ms Amy Grant and Ms Renee Elder. The latter two were administration officers within ED Administration at QEII Jubilee Hospital at the time of the alleged incident.

Relevant law

Relevant legislation on the 'fair and reasonable' test

  1. [5]
    Section 562B of the Industrial Relations Act 2016 (Qld) ('IR Act') says:
  1. This section applies to a public service appeal made to the commission.
  1. The commission must decide the appeal by reviewing the decision appealed against.
  1. The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the commission—
  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [6]
    Section 562C(1) of the IR Act says:
  1. In deciding a public service appeal, the commission may—
  1. confirm the decision appealed against; or
  1. for an appeal against a promotion decision—set the decision aside, and return the matter to the decision maker with a copy of the decision on appeal and any directions permitted under a directive made by the Public Sector Commissioner that the commission considers appropriate; or
  1. for another appeal—set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [7]
    Section 130 of the PS Act says:

A person may appeal against a decision if—

  1. an appeal may be made against the decision under section 131; and
  1. the person is entitled to appeal against the decision under section 133.
  1. [8]
    Section 131(1)(d) of the PS Act says:
  1. An appeal may be made against the following decisions—…

… (d) a fair treatment decision;…

  1. [9]
    Section 133(d) of the PS Act says:

The following persons may appeal against the following decisions—

…(d) for a fair treatment decision—a public sector employee aggrieved by the decision;…

Relevant case law on the meaning of 'fair and reasonable'

  1. [10]
    Appeals of this nature are not a rehearing of the substantive case; they are a review only of the decision in issue. In Colebourne v State of Queensland (Queensland Police Service) (No. 2) (‘Colebourne’),[1] his Honour, Merrell DP, set out a comprehensive consideration of the relevant authorities on the correct test to be applied in these cases. Whether the decision is 'fair and reasonable' is a simple test applying the plain meaning of that phrase. It is not the test that is applied in the judicial review of administrative decisions.[2] Instead:

The determination of whether a decision, which is the subject of an appeal pursuant to ch 7, pt 1 of the PS Act, was 'fair and reasonable' involves a review of the decision as well as the decision-making process associated with that decision. Depending on the decision being appealed and the grounds of appeal raised, such a review may involve a review of the merits of the decision. In addition, depending on the decision being appealed and the grounds of appeal raised, a review of a decision as to whether the decision, or the decision-making process, was fair and reasonable, may involve a consideration of whether the decision maker complied with any relevant statutory provision.[3]

  1. [11]
    His Honour further held in Colebourne that the task in such appeals is to review the relevant decision and decide if it was "'fair and reasonable' [and] not whether the decision was unreasonable having regard to the legal standard of reasonableness".[4]
  1. [12]
    As Dwyer IC emphasised in Schubert v State of Queensland (Queensland Health),[5] the role of the Commission "does not extend to disturbing a decision that was reasonably open to the decision maker, even where the Commission might have decided the matter differently".[6] But where a finding was not reasonably open to a decision maker to reach, those decisions are prone to being set aside on appeal, as Caddie IC observed in Malcolm v State of Queensland (Queensland Health).[7]

Relevant legislation on the rules of evidence in this Commission

  1. [13]
    Subsections 531(2) and (3) of the IR Act say:
  1. In proceedings, the commission or Industrial Magistrates Court—
  1. is not bound by rules of evidence; and
  1. may inform itself in the way it considers appropriate in the exercise of its jurisdiction.
  1. Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of—
  1. the persons immediately concerned; and
  1. the community as a whole…

Relevant case law on the rules of evidence in this Commission

  1. [14]
    In King v Workers' Compensation Regulator ('King'),[8] his Honour, O'Connor VP, explained the nature of subsections 531(2) and (3) of the IR Act. His Honour noted that subsection 531(2) provides the Commission with the discretion to accept or reject material as it sees fit.[9] However, his Honour also observed that the discretion is not unbounded and that the Commission's duty to act judicially and to afford the parties procedural fairness meant that "the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done".[10]

Relevant case law on hearsay evidence

  1. [15]
    In Leigh v State of Queensland (Department of Education) ('Leigh'),[11] O'Neill IC considered the application of the rule against hearsay in tribunals and by decision makers whose decisions were the subject of review by such tribunals. Leigh was a case reviewing the respondent's decision to substantiate the allegation that a teacher engaged in a sexual relationship with a student. That decision was based largely on hearsay, some of it fourth hand or worse.[12]
  1. [16]
    O'Neill IC observed that the Commission is not bound by the rules of evidence and could receive hearsay evidence.[13] However, O'Neill IC noted that the rules of evidence provide the conventional means by which reliability of evidence is assessed. Despite being relieved of the rules of evidence, it is still necessary for a decision to be based on evidence that has "rational probative force".[14] O'Neill IC concluded that despite decision makers, or the tribunal, not being bound by the rules of evidence, decisions must "be based on material which tends logically to show the existence, or nonexistence, of the facts relevant to the issue which the fact-finding tribunal is being asked to determine".[15] O'Neill IC drew support for this conclusion from his Honour Brennan J's decision in Re Poochi and Minister for Immigration and Ethnic Affairs.[16] In that case, his Honour observed that hearsay evidence can be the basis of a decision where it can be fairly said to be reliable. His Honour further observed that the logical weakness of hearsay evidence may make it too insubstantial to persuade the Tribunal of the truth of serious allegations.[17] O'Neill IC further observed in Leigh that there will be cases where the weight of the hearsay evidence is so slight that it would be irrational to act upon it,[18] especially in cases dealing with serious allegations.

Relevant case law on similar fact evidence

  1. [17]
    In Mood Music Publishing Co Ltd v De Wolfe Ltd ('Mood Music'),[19] his Honour, Lord Denning, said of the admissibility of similar fact evidence in civil proceedings:

The admissibility of evidence as to 'similar facts' has been much considered in the criminal law… The criminal courts have been very careful not to admit such evidence unless its probative value is so strong that it should be received in the interests of justice: and its admission will not operate unfairly to the accused. In civil cases the courts have followed a similar line but have not been so chary of admitting it. In civil cases the courts will admit evidence of similar facts if it is logically probative, that is if it is logically relevant in determining the matter which is in issue; provided that it is not oppressive or unfair to the other side; and also that the other side had fair notice of it and is able to deal with it.[20]

  1. [18]
    His Honour's observations in Mood Music on the admissibility of similar fact evidence in civil proceedings have since been approved in Australia.[21]
  1. [19]
    In King, his Honour, O'Connor VP, considered the use of similar fact evidence in a workers' compensation appeal where it was in issue that the appellant suffered a psychiatric injury due to the conduct of her manager.[22] The appellant sought to lead similar fact evidence to prove that the manager had, on previous occasions, acted in a similar way to that alleged.[23] His Honour stated that similar fact evidence will be admissible if it "is logically probative, that is, relevant to proving a matter in issue, provided that it is not unfair or oppressive and the other side has had notice". His Honour went on to note the observations of Martin J, as his Honour then was, in St Clair v Timtalla Pty Ltd & Anor,[24] with respect to the admissibility of similar fact evidence; that the modern cases support the view that the essential criterion for admissibility is relevance.[25]
  1. [20]
    His Honour concluded that the correct approach was to admit the similar fact evidence and leave it to the ultimate trier to determine the relevance and weight of the evidence after hearing the totality of the evidence.[26]

The prior findings

  1. [21]
    The Decision refers to previous findings of inappropriate behaviour made against the Appellant ('Prior Findings'). The Appellant argues that any reliance on the Prior Findings by Ms Campbell rendered the Decision not fair and reasonable. It is worthwhile, then, to set out a summary of the Prior Findings, because they are mentioned in the Decision.
  1. [22]
    On 24 August 2023, Ms Joana Griffiths, Manager, Queensland Occupational Violence Strategy Unit ('QOVSU'), made a statement about the Appellant's conduct between 21 and 23 August 2023 at a training conference. She alleged that:
  1. throughout the training conference, the Appellant made comments that made her feel uncomfortable;
  1. on Tuesday, 22 August 2023, the Appellant said he really liked her perfume and asked what it was;
  1. on Tuesday, 22 August 2023, after Ms Griffiths offered the Appellant some homemade sweets, the Appellant said "No, but I'll have you"; and
  1. on Wednesday, 23 August 2023, the Appellant commented on how nice Ms Griffiths' dress was and how pretty she was. She said that she smiled awkwardly and that Appellant then said "I have a suit at home that would go really well with that when we go out".
  1. [23]
    On 24 August 2023, Ms Joceyln Oulds, Security Officer Ambassador Program (Wide Bay HHS) also made a statement about the Appellant's conduct between 21 and 23 August 2023 at the same training conference. She alleged that:
  1. on 21 August 2023, the Appellant approached her and said she looked lovely in jeans;
  1. on 22 August 2023, the Appellant approached her while looking at her and said he had been "checking [her] out" and that she looked "amazing in jeans and in a dress. Wow."; and
  1. on 23 August 2023, the Appellant approached her while she was seated and talking to someone else and placed his hand on her inner thigh. She alleged he said that "it's a really good thing I'm married".
  1. [24]
    Ms Lita Jeffries, Clinical Lead, QOVSU, also made a statement about the Appellant's conduct between 21 and 23 August 2023 at the same training conference. She alleged that:
  1. on 23 August 2023, Ms Oulds appeared to her to be guarded and nervous and asked to speak to Ms Jeffries privately. The two then moved to the corner of the room, where Ms Jeffries stated that Ms Oulds told her that she was anxious and uncomfortable around the Appellant because the Appellant had made multiple advances and sexualised comments towards Ms Oulds. Ms Jeffries also stated that Ms Oulds said that the Appellant made comments towards her saying "wow, you look tight in jeans" and words to the effect of "you can pull off a dress too" and "looking good today". Ms Jeffries said she reassured Ms Oulds and asked her if there was anything she could do to support her. Ms Jeffries says that Ms Oulds declined this support. Ms Jeffries also says that she told Ms Oulds that she would ensure she was not partnered with the Appellant for any activities;
  1. on 23 August 2023, Ms Jeffries spoke with Ms Griffiths about the interaction between Ms Oulds and the Appellant. Ms Jeffries stated that she was told by Ms Griffiths that the Appellant also made comments towards Ms Griffiths that she smelled nice and asked what perfume Ms Griffiths was wearing. Ms Jeffries stated that she was told by Ms Griffiths that the Appellant also made comments towards Ms Griffiths that "she looked pretty" and that "he had a suit at home that would look good with her dress when they go out together" in a suggestive tone;
  1. on 23 August 2023, Ms Jeffries stated that Ms Griffiths said she felt incredibly uncomfortable when she was offering homemade slice to conference participants as they left and the Appellant said "No thanks, but I'll have you";
  1. at the end of the day on 23 August 2023, that Ms Oulds told her that she (Ms Oulds) was still feeling uneasy and anxious and that the Appellant was still "watching" her. Ms Jeffries also stated that Ms Oulds told her that the Appellant had at one point leaned over, touched her on the leg with his hand angled towards her inner thigh and said words to the effect of "lucky I'm married";
  1. at the end of the day on 23 August 2023 that she contacted Mr Richard James, QEII Security Coordinator, to report the incident. She alleges that Mr James said there had been a previous unsubstantiated incident involving the Appellant; and
  1. during the conference, the Appellant said "I've had patients hit on me and tell me 'I'd like to take a sip of that tall dark chocolate milkshake'", "[a]t least buy me a drink first" and, in a suggestive and sexualised tone, "[c]ome on ladies. Who wants to be my partner".
  1. [25]
    Mr Brett Bricknall, Acting Executive Director, QEII Jubilee Hospital, Metro South Health, wrote on behalf of the Respondent to the Appellant asking him to show cause as to three prior notices. Mr Bricknall outlined that there were four allegations against the Appellant:
  1. between 21 and 23 August 2023, the Appellant demonstrated inappropriate behaviour when he initiated unwelcomed and unsolicited conversations of a sexual nature with fellow training attendee Ms Jocelyn Oulds;
  1. on 23 August 2023, the Appellant demonstrated inappropriate behaviour when he initiated unwanted physical contact with fellow training attendee Ms Jocelyn Oulds;
  1. between 21 and 23 August 2023, the Appellant demonstrated inappropriate behaviour when he initiated unwelcomed and unsolicited conversations of a sexual nature with fellow training attendee Ms Joana Griffiths; and
  1. between 21 and 23 August 2023 the Appellant demonstrated unprofessional behaviour when he made inappropriate comments of a sexual nature during a training conference.
  1. [26]
    All but the last of these allegations were substantiated on the basis of the evidence described above and the Appellant's response. Following another show cause letter, the Respondent, on 22 February 2024, then disciplined the Appellant by way of reprimand on the basis of the three substantiated allegations.

The show cause process

The 17 June 2024 show cause letter

  1. [27]
    Coming back to the more recent allegations, Ms Angie Dobbrick, Acting Executive Director, QEII Jubilee Hospital, wrote to the Appellant on 17 June 2024 inviting him to show cause as to the allegations against him. Ms Dobbrick first outlined the history of the matter, noting that the Appellant had been suspended with pay since 31 May 2024. She noted that the Appellant had only recently been subject to a separate disciplinary process for sexual harassment that had resulted in a reprimand.
  1. [28]
    Ms Dobbrick then outlined the evidence before her as to the Allegation, which included the witness accounts of Ms McGuigan, Ms Grant, and Ms Elder, as well as CCTV footage. Ms McGuigan alleged that the Appellant approached her and said to her "Look at you, look at you, look at the beautiful tan colour of your skin" before Appellant stroked her hand then up her arm. Ms McGuigan alleged that she then pulled away but the Appellant touched her again after she pulled away. Ms McGuigan said this alleged incident left her feeling deeply uncomfortable.
  1. [29]
    Ms Grant's account of the incident was that she recalled that a security guard approached Ms McGuigan and spoke to her. Ms Grant said that she was able to observe the movements of both the Appellant and Ms McGuigan. Ms Grant's account was that the Appellant reached out for Ms McGuigan's hand and then, after Ms McGuigan pulled away, the Appellant tried to reach for Ms McGuigan's hand again. Ms Grant stated that, throughout this exchange, Ms McGuigan looked uncomfortable and that the Appellant laughed. Ms Grant also stated that she spoke with Ms McGuigan immediately after the Appellant left the area about the interactions, and that Ms McGuigan told her she felt very uncomfortable.
  1. [30]
    Ms Elder recalled that the Appellant entered the triage area before she removed herself from that area. Ms Elder said that she did so because she had previously experienced uncomfortable interactions with the Appellant. Ms Elder stated that she heard part of the conversation and that, despite not remembering the exact wording, recalled the Appellant making remarks to Ms McGuigan about her skin colour in a flirtatious manner. Ms Elder says she heard the Appellant say to Ms McGuigan that Ms McGuigan was trying to be brown like the Appellant, not white, and that the Appellant then laughed.
  1. [31]
    According to the CCTV footage, the Appellant interacted with Ms McGuigan (who was out of frame) and during that interaction, reached out of frame in Ms McGuigan's direction. Ms Dobbrick said in this letter to the Appellant that the CCTV footage also showed Ms McGuigan approaching Ms Grant immediately after the alleged incident, talking with her and touching her own arm from her wrist upwards in the same manner that Ms McGuigan alleged the Appellant touched her.
  1. [32]
    Ms Dobbrick advised the Appellant that she considered the Appellant may have been guilty of misconduct or may have contravened, without reasonable excuse, a relevant standard of conduct in a manner sufficiently serious to warrant disciplinary action. Ms Dobbrick then gave the Appellant 14 days to respond to the show cause notice.

The Appellant's 15 July 2024 response to the show cause notice

  1. [33]
    The Appellant's union, the Australian Workers' Union ('AWU'), responded on the Appellant's behalf to the show cause notice issued on 17 June 2024. The Appellant noted that he had, since the alleged incident, undertaken sexual harassment training and become aware that his conduct could be perceived as inappropriate.
  1. [34]
    The Appellant argued that there were discrepancies in the evidence. The Appellant sought to cast doubt on Ms Elder's evidence by pointing out that Ms Elder was not in the vicinity of the alleged interaction when it occurred, as she admits she left the area and only knew where the Appellant was by the direction of his voice. The Appellant also pointed out that Ms Elder felt guilty for leaving Ms McGuigan with the Appellant, although that point is not developed. The Appellant argued that the CCTV footage showed that Ms Elder was not near enough to the Appellant to have been able to hear all of the interaction. The Appellant also submitted that he has a loud voice, and that Ms McGuigan has a quiet voice. I surmise, that the point of this submission was to argue that in these circumstances less reliance should have been placed on Ms Elder's evidence.
  1. [35]
    The Appellant also contended that there was significant gossip and rumour about him that caused the uncomfortable feeling that Ms McGuigan, Ms Grant, and Ms Elder felt towards the Appellant. The insinuation here was that the witness accounts were tainted by their unfavourable perception of the Appellant.
  1. [36]
    The Appellant also pointed out that the CCTV footage did not positively show him touching Ms McGuigan as most of his body was off screen. The Appellant contended that when the layout of the office is considered in conjunction with the CCTV footage, it is not possible to conclude that the Appellant could have both remained on screen and touched Ms McGuigan.
  1. [37]
    The Appellant also provided his own personal response as an attachment to the AWU response letter dated 15 July 2024. In it he said that he saw that Ms McGuigan had what appeared to him to be a henna tattoo on her left hand and asked her if it was a henna tattoo. The Appellant said that Ms McGuigan replied that it was not a henna tattoo, at which point in time the Appellant claimed to reach forward in order to place his hand on the desk, palm down flatly, in order to compare his hand to Ms McGuigan's hand. The Appellant claimed that Ms McGuigan had also, on several prior occasions, placed her palm down flatly to compare hands with the Appellant. The Appellant then claimed that what he said to Ms McGuigan was, "you aren't still trying to catch up to me, are you?", referring to skin colour as compared between Ms McGuigan and himself. The Appellant alleged that Ms McGuigan replied loudly enough for all nearby to hear, "Yeah, but just not as burnt looking as you". The Appellant claimed that this made him laugh out loud and that he replied, "Well that's good because I am brown, not orange".
  1. [38]
    The Appellant also alleged that the CCTV footage did not indicate that any physical contact was made, contending that Ms McGuigan was seated 2 to 3 feet to his right and thus his entire body would have had to have left the frame for him to have been able to touch her. The Appellant denied making any physical contact whatsoever with Ms McGuigan and denied that the interaction was of a sexual nature. The Appellant also contended that he and Ms McGuigan have previously had a good working relationship. The Appellant also argued that the witness accounts were embellished and fraudulent.  

The Decision

  1. [39]
    In the Decision, Ms Gillian Campbell, Executive Director, QEII Jubilee Hospital, first summarised the Allegation before traversing the abovementioned submissions made by the Appellant. Ms Campbell noted that the Appellant submitted that he had known Ms McGuigan for about two years and had a positive working relationship, having never had any negative encounters. Ms Campbell also noted the Appellant's admission to having an interaction with Ms McGuigan on or around that day and denial that any physical contact occurred and that the interaction was of a sexual nature.
  1. [40]
    Ms Campbell set out the key points of the Appellant's account, which I summarise as:
  1. the Appellant struck up a conversation with Ms McGuigan about what he believed was a henna tattoo on Ms McGuigan's hand;
  1. he laid his right hand down flat on the desk next to Ms McGuigan and remarked along the lines of "You aren't still trying to catch up to me, are you?" believing Ms McGuigan had a spray tan;
  1. Ms McGuigan responded to the effect of, "Yeah, but just not as burnt looking as you"; and
  1. That:
  1. "…to say that I touched her 'up her arm', when I only asked her about what was on her hand, is a blatant and hurtful lie";
  1. Ms McGuigan's co-workers had "fraudulently provide[d] embellished statements, to go along with hers stating that I repeatedly attempted to "grab her" when I did neither"; and
  1. the CCTV footage is incompatible with the Respondent's version of events.
  1. [41]
    Ms Campbell also considered the AWU's submissions challenging the evidence. In particular, the AWU contention that some of the evidence contained what was described as gossip and rumour and that there was some doubt as to the capacity of some of the witnesses, particularly Ms Elder, to observe the relevant exchange between Ms McGuigan and the Appellant.
  1. [42]
    Ms Campbell set out a detailed consideration of the veracity of the Appellant's account of the interaction with Ms McGuigan. Ms Campbell analysed the Appellant's account against the accounts provided by witnesses. Ms Campbell noted that the CCTV footage showed the Appellant reached forward and across, out of view of the camera frame. However, Ms Campbell observed that the upper part of the Appellant's arm, which was in frame, was moving. Ms Campbell considered that the movement of the arm was at odds with the Appellant's assertion that he had laid his hand down on the desk in front of Ms McGuigan. Ms Campbell deduced that if the Appellant's assertion were correct then his arm would not move. Ms Campbell consequently declined to accept the assertion that the Appellant laid his right hand down flat on the desk. Ms Campbell also checked the layout of the area against the CCTV footage and concluded that, contrary to the Appellant's assertion, he would have indeed been able to reach out and touch Ms McGuigan from where he was standing. Ms Campbell's conclusion was bolstered by Ms McGuigan re-enacting the interaction with Ms Grant as soon as the Appellant left the area, and by Ms Grant's account of the events.
  1. [43]
    Ms Campbell also addressed the AWU's contention that the witness accounts were unreliable. Ms Campbell acknowledged the remarks made by Ms Elder about feeling uncomfortable around the Appellant in general. Ms Campbell also acknowledged the AWU's contentions that Ms Elder, by removing herself from the area, was not in a position to hear all of the relevant conversation. Ms Campbell further noted that the Appellant's claim that Ms McGuigan must have procured her colleagues to provide embellished statements was not particularised or supported by any evidence. Ms Campbell also observed the fact that the Appellant had recently undertaken training in sexual harassment as a result of the earlier findings that he had conducted himself inappropriately within the workplace. Ms Campbell stated that that was so recent, the reprimand being issued less than three months before this incident, that she would have expected the Appellant to have had an increased level of awareness regarding how his conduct was perceived at about the time of this incident.
  1. [44]
    Ms Campbell then set out her findings. She first found on the balance of probabilities that Ms McGuigan's and Ms Grant's accounts were more consistent with the CCTV footage than the Appellant's account, largely for two reasons. Ms Campbell's first stated reason was that she deduced that the movement of the Appellant's arm was more consistent with a version of events where he moved his arm up and down than a version of events where his arm was stationary. Ms Campbell concluded that that gave credence to Ms McGuigan's and Ms Grant's account. Ms Campbell's second stated reason was that Ms McGuigan and Ms Grant could be seen to have had a conversation immediately after the alleged incident, which aligned with Ms Grant's version of events. Ms Campbell also found Ms Grant's version of events to be reliable, as the CCTV footage showed her witness the interaction.
  1. [45]
    Ms Campbell observed that Ms Elder may not have been in a position to clearly hear all of the interaction, but did consider Ms Elder's direct evidence as providing credibility to Ms McGuigan's complaint.
  1. [46]
    Ms Campbell then concluded that the Allegation was substantiated on the balance of probabilities. It followed from that conclusion that Ms Campbell found that the Appellant had been guilty of misconduct within the meaning of that term as it appears in s 91(1)(b) of the PS Act. Ms Campbell then invited the Appellant to show cause as to proposed disciplinary action of termination.

Submissions

The Appeal Notice

  1. [47]
    The Appeal Notice claims that the Decision is unfair and unreasonable because Ms Campbell gave insufficient weight to the Appellant's responses to the Allegation and relied on indirect inferences and speculation in determining if the alleged misconduct occurred.

The Respondent's submissions

  1. [48]
    The Respondent contends that it was reasonably open to Ms Campbell to conclude that the conduct occurred as alleged, given the evidence described above and the credibility of the witnesses. The Respondent argues that even though the CCTV footage did not positively capture the Appellant touching Ms McGuigan, the cross-checking of the layout of the area with the footage provides ample evidence to support the conclusion that Ms Campbell came to. The Respondent also points out that the Appellant does not refute that an interaction did occur.
  1. [49]
    The Respondent further contends that the conduct alleged constitutes sexual harassment as defined in Queensland Health HR Policy E5 – Sexual Harassment. The Respondent also notes that the Appellant had recently been disciplined for a sexual harassment incident and so ought to have been on notice as to how he should have conducted himself.
  1. [50]
    The Respondent notes that s 121(2)(c) of the IR Act describes sexual harassment as a form of serious misconduct. Also, that ss 91(1)(b) and 91(5)(a) of the PS Act combine to provide that employees may be disciplined if they are guilty of misconduct, or more specifically, inappropriate or improper conduct in an official capacity. The Respondent cites the decision of his Honour, Merrell DP, in Coleman v State of Queensland (Department of Education)[27] as authority for the principle that misconduct "contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee."[28] The Respondent submits that in the premises, it was reasonable for Ms Campbell to determine that the allegations were substantiated, that the Appellant had therefore engaged in misconduct pursuant to s 91(1)(b) of the PS Act and that he was thus liable to be disciplined.

The Appellant's submissions

  1. [51]
    The Appellant reiterates the arguments he advanced in the Appeal Notice: first, that the Respondent gave insufficient weight to the Appellant's responses to the Allegation, and, second, that the Respondent relied on indirect inferences and speculation in determining if the alleged misconduct occurred.
  1. [52]
    In support of the first argument, the Appellant submits that the principles from Briginshaw v Briginshaw apply.[29] He relies on Dixon J's description of the principle:[30]

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

  1. [53]
    The Appellant argues that the Respondent relied on the substantiated Prior Findings in reaching the Decision. The Appellant notes that he has denied the Prior Findings because he was not given any indication during the incidents that made up the Allegation that his behaviour was not appropriate and that some aspects of the alleged interactions did not happen. The Appellant argues that the conflicting account of events underpinning the Prior Findings means that Ms Campbell should not have relied on the Prior Findings in reaching the Decision.
  1. [54]
    The Appellant also argues that he did not have reason to interact with the staff for longer than necessary, seemingly because he had only been in the substantive position for 2 months. The Appellant further argues that any previous interactions with Ms McGuigan would have been limited, and so therefore it was not open to Ms Campbell to substantiate the Allegation. That submission is not developed, however.
  1. [55]
    The Appellant notes that Ms Campbell relied on the CCTV footage in reaching her decision, but argues that the footage does not show what exactly the Appellant reaches out towards or touches. The Appellant also says that there were other staff in the room when the interaction occurred, and that the Respondent should have obtained their accounts.
  1. [56]
    The Appellant further argues that Ms Grant's recollection of events should not have been relied upon because she did not have a clear recollection. And as for Ms Elder, the Appellant argues that her evidence should not have been relied upon because Ms Elder, by her own admission, was not in the room when the relevant interaction occurred.

Consideration

  1. [57]
    The Appellant brings this appeal on two grounds. The first is that Ms Campbell gave insufficient weight to his submissions when making the Decision. The second ground of appeal is that Ms Campbell relied on indirect inferences and speculation when making the Decision. The Appellant submits that these two grounds provide sufficient reasons to warrant a finding that the Decision is not fair and reasonable.

Did Ms Campbell unfairly weigh certain evidence?

  1. [58]
    With respect to the first ground of appeal, the Appellant argues that when substantiating the Decision, Ms Campbell gave too much credence to unreliable information in the form of the Prior Findings. The Appellant says that the information is unreliable because he denies those allegations and because there are different accounts of the event.  The Appellant claims that the unreliability of such information means that it was not open to Ms Campbell to rely on the Prior Findings.
  1. [59]
    Ms Campbell referred to the Prior Findings, the resulting reprimand and sexual harassment training along the way to making her conclusion. She expressed that she had "concerns that these previous matters have not been sufficient for [the Appellant] to correct [his] conduct within the workplace to align with behavioural standards of the Code of Conduct". But it is not clear that Ms Campbell relied on the Prior Findings as similar fact or propensity evidence. The fact that the Appellant recently underwent training for sexual harassment certainly provided Ms Campbell evidence of the degree to which the Appellant was aware that his actions were inappropriate and, by extension, the degree to which he knowingly disregarded his obligation to not sexually harass others. The degree of knowing disregard would be a relevant consideration as to the recklessness of any misconduct. It is, as the Respondent puts it, a relevant consideration insofar as it is "an aggravating factor in determining whether the threshold for misconduct had been met". It was open to Ms Campbell to conclude that the fact that the Appellant had recently undergone sexual harassment training created an aggravating circumstance worsening the degree of any misconduct.
  1. [60]
    However, it does not appear to me that the Appellant's recent sexual harassment training or the Prior Findings influenced Ms Campbell's findings of fact. I do not see that the Prior Findings were used as similar fact evidence to substantiate the Allegation either. The Appellant does not explicitly allege that to be the case. But it seems to be implied in the submissions concerning what Ms Campbell placed weight on when coming to her conclusions of fact in the Decision. When Ms Campbell was assessing conflicting accounts of what in fact happened, she weighed each objectively and did not at any point say she found it more likely that the Appellant engaged in the conduct alleged because he had done that sort of thing before. Ms Campbell's reference to the Prior Findings seems to me to have been more an observation that the Appellant ought to have known better rather than a finding of fact based on propensity or similar fact evidence.
  1. [61]
    In any case, I consider that the Respondent would have been entitled to rely on the Prior Findings. The findings of fact within the Prior Findings were the result of a detailed investigation that the Appellant was involved in and which was never appealed. The Appellant had fair notice of it too because it was raised in the 17 June 2024 show cause letter. The Appellant therefore was able to deal with the Prior Findings and I do not consider that any reliance upon them, if indeed there was reliance upon them, was unfair.[31]
  1. [62]
    As well, the facts involved in the Prior Findings were directly relevant to those before Ms Campbell as the conduct in question was very similar. I cannot therefore accept the Appellant's submission about propensity evidence. Whilst there is some mention in the Decision of similar fact evidence, it is clear to me that Ms Campbell reached the conclusions she did based on an objective assessment of the CCTV footage and the accounts given by the Appellant, the complainant and the two witnesses, and not on any propensity evidence falling from the Prior Findings. And even if any reliance was had by Ms Campbell on propensity evidence falling from the Prior Findings, it was not unfair for her to do so in my opinion.

Did Ms Campbell rely on indirect inferences and speculation?

  1. [63]
    The Appellant also argued that indirect inferences and speculation unfairly formed the basis of Ms Campbell's conclusions. The central point of this submission was that Ms McGuigan and the two witnesses all colluded to fabricate their accounts of the interaction.
  1. [64]
    For reasons I explain below, it is clear to me that Ms Campbell did not place undue weight on any indirect inferences or speculation. Ms Campbell sets out coherent and rational reasons for reaching her conclusions. She more than adequately justifies why her analysis of the CCTV footage, amongst other things, led her to prefer the accounts of Ms McGuigan and the two witnesses. As well, Ms Campbell found, rightly in my view, that there was no reasonable basis for accepting the assertion that the witnesses colluded to produce corroborating but false accounts of the incident. There was simply no basis upon which to objectively conclude that the witnesses had such a dislike for the Appellant that they would collude to give a false account and maintain that false account under the scrutiny of an investigation.
  1. [65]
    I cannot see any other potential issue in Ms Campbell relying on Ms Grant's account. The Appellant agitates that it was not open to Ms Campbell to accept hearsay, particularly in light of the principle in Briginshaw.[32] I surmise that the part of Ms Grant's account that the Appellant says is hearsay is the interaction Ms Grant has with Ms McGuigan following the incident.
  1. [66]
    Whether it was open to Ms Campbell to accept Ms Grant's account requires revisiting Ms Grant's hearsay evidence in light of the other evidence. The CCTV footage depicts the room in which the incident occurs. In that footage, the Appellant can be seen standing at a row of desks. The exact desk, and the person sitting there, is not visible. However, I have also been provided a drawing of a plan of that room. When the plan is cross-referenced to the footage, it is clear that the desk the Appellant was standing at was Ms McGuigan's desk. In the background of the footage, a woman can be seen looking at the area where the Appellant and Ms McGuigan are. There is nothing obstructing that woman's view. That woman is Ms Grant. It is plainly proven then that Ms Grant had excellent capacity to observe the incident. However, she was, by her own admission, not able to hear all of the conversation.
  1. [67]
    Ms Grant's eyewitness account of the event carries significant weight in my opinion. In that account, Ms Grant described how the Appellant "reach[ed] out to grab" Ms McGuigan's hand and then, after Ms McGuigan "immediately pulled back and away from him", the Appellant tried to reach for Ms McGuigan's hand again. Ms Grant also recounted that Ms McGuigan looked "uncomfortable" and that the Appellant "then tried to grab her hand again and made a comment but I wasn't able to hear it. He was laughing throughout this, however [Ms Grant] was not and looked clearly uncomfortable."
  1. [68]
    Ms Grant then says she spoke with Ms McGuigan about the interaction immediately after the Appellant left the area. Ms Grant says that Ms McGuigan told her that she felt uncomfortable during the incident. There was no other hearsay evidence given by Ms Grant. So, the only hearsay evidence in Ms Grant's statement was that Ms McGuigan told her that she felt uncomfortable during the exchange with the Appellant. Ms Grant's account is therefore almost entirely a direct eyewitness account of the event. The conversation Ms Grant recounts having with Ms McGuigan – the hearsay portion of the account – merely confirms what she saw.
  1. [69]
    In my opinion, Ms Campbell was entitled to rely on Ms Grant's eyewitness account, there being nothing to suggest it was unreliable. Ms Campbell was also entitled to rely on Ms Grant's second-hand account of Ms McGuigan's expression of feeling uncomfortable. It is true that despite Ms Campbell not being bound by the rules of evidence, Ms Campbell still needed to ensure the hearsay evidence was reliable given dangers arising from the unreliableness of a second-hand account.[33]  But here, there is no issue with the reliability of the second-hand account of the incident Ms Grant received from Ms McGuigan. Ms Grant had a first-hand account of the same incident. She saw with her own eyes the physical reaction of Ms McGuigan and the physical actions of the Appellant. She saw also Ms McGuigan's facial expressions and body language during the exchange. Ms Grant would have been able to cross-check what she saw against what Ms McGuigan said. Ms Grant's first-hand account of events would have been clear at the time of their conversation, given the conversation occurred almost immediately after the event. And so, Ms Grant was well-positioned to assess the veracity of Ms McGuigan's account of feeling uncomfortable. There was nothing unfair about relying on the second-hand account of the events in this instance.
  1. [70]
    Consequently, Ms Campbell was justified in relying on Ms Grant's evidence. To the extent that Ms Campbell relied on Ms Grant's first-hand eyewitness account, it was appropriate for her to do so given there was no reason why Ms Grant would fabricate her account or be untruthful and it was supported by CCTV footage. To the extent that Ms Campbell relied on Ms Grant's second-hand account, she was entitled to do so because of its consistency with Ms Grant's eyewitness account. In my view, it appears that Ms Campbell relied mainly on the eyewitness account. But either way, it was fair and reasonable for Ms Campbell to rely on all of Ms Grant's evidence. 
  1. [71]
    Finally, the Appellant takes issue with the credibility of the witnesses. The Appellant contends that there was some form of conspiracy between the witnesses to oust the Appellant. That contention holds no weight in my opinion. Ms Campbell found Ms McGuigan to be a credible witness. In reaching that conclusion, Ms Campbell rightly noted that the account provided by the witnesses was more readily supported by the CCTV footage. Furthermore, the Appellant said he had never had any form of falling out with Ms McGuigan. That left the Appellant's claim that Ms McGuigan had fabricated her account, and convinced two others to do the same, quite at odds with the facts. On that basis, I find that it was entirely open to Ms Campbell to conclude that those witnesses provided a more reliable version of events than the Appellant. Given these conclusions were open to Ms Campbell, I am of the view that it was fair and reasonable for Ms Campbell to decide this point as she did.
  1. [72]
    Furthermore, it was open to Ms Campbell to rely on Ms Elder's witness account. By her own admission, Ms Elder did not see the entire incident and did not clearly hear the exchange between the Appellant and Ms McGuigan. However, in the evidence Ms Elder did give, she recalled hearing the Appellant make remarks to Ms McGuigan about her skin colour in a "flirtatious manner". Ms Elder's account was that the Appellant said to Ms McGuigan that Ms McGuigan was trying to be brown, like the Appellant, instead of white, and that the Appellant laughed afterwards. In my view, Ms Elder's evidence was not nearly as probative as the evidence of the other witnesses because Ms Elder did not witness the incident clearly. But Mr Elder's evidence does align with the evidence of the other witnesses. It is still therefore evidence of some probative value as it goes to proving that the incident occurred in the way the complaint alleged it to have. Consequently, it was open to Ms Campbell to rely on the evidence in the way she did, in that it was considered within the whole of the factual matrix. It was therefore fair and reasonable for Ms Campbell to rely on that evidence, the limited degree that she did.
  1. [73]
    The totality of evidence proved that the account to be preferred was that put forward by Ms McGuigan. The three credible witness accounts of Ms McGuigan, Ms Grant and Ms Elder, combined with the CCTV footage, formed a robust foundation upon which Ms Campbell clearly, and appropriately I find, relied to substantiate the Allegations. Against this, Ms Campbell weighed the Appellant's account. It was contrary to the CCTV footage and the other witness evidence, and sought to unjustifiably impugn the credibility of those witnesses. The Appellant argues that Ms Campbell should have interviewed more witnesses, but the evidence here was already cogent. So much so that Ms Campbell was justified, in my opinion, in substantiating the Allegation on the evidence before her. This is so even having regard to the higher bar set by Briginshaw when dealing with serious allegations. I therefore find that it was fair and reasonable for Ms Campbell to substantiate the Allegation.
  1. [74]
    The Appellant only challenged the findings of fact in the Decision. However, I have also considered the Decision in respect of Ms Campbell's conclusion that the Appellant's conduct amounted to serious misconduct because it constituted sexual harassment pursuant to s 121(2)(c) of the IR Act. I accept the Respondent's submissions on this point. That conclusion was open to Ms Campbell to make in my opinion. Ms Campbell had made the findings of fact which left it open to conclude the conduct amounted to sexual harassment and therefore serious misconduct. So too, the conclusion that the Appellant was exposed to being disciplined pursuant to ss 91(1)(b) and 91(5)(a) of the PS Act, which relevantly provide for the disciplining of employees if found to have engaged in misconduct. I therefore find that this part of the Decision was fair and reasonable.

Conclusion

  1. [75]
    I consider that it was open to Ms Campbell to prefer Ms McGuigan's account of the incident along with the witness accounts of Ms Grant and Ms Elder. On my assessment of the Decision, Ms Campbell drew upon cogent evidence available to her at the time so as to reach the conclusions that underpinned the Decision, including rejecting the Appellant's assertions. So too the conclusions as to sexual harassment and serious misconduct rendering the Appellant liable to discipline. Accordingly, I am of the view that the Decision was fair and reasonable and I dismiss the Appeal. The Decision is confirmed.

Orders

  1. The Appeal is dismissed.
  1. The Decision is confirmed.

Footnotes

[1] [2022] QIRC 16 ('Colebourne').

[2] Ibid [22].

[3] Colebourne (n 1) [23].

[4] Ibid [25].

[5] [2024] QIRC 128.

[6] Ibid [8].

[7] [2024] QIRC 97, [155].

[8] [2019] QIRC 134 ('King').

[9] King (n 8) [16].

[10] Ibid [18]-[25].

[11] [2025] QIRC 23 ('Leigh')

[12] Ibid [121].

[13] Ibid [123], citing the Industrial Relations Act 2016 (Qld) s 531(2).

[14] Ibid [125], citing Polizzi v Commissioner of Police (No. 2) [2017] WASC 166.

[15] Ibid, citing R v Deputy Industrial Injuries Commissioner; Ex Parte Moore [1965] 1 QB 465, 488.

[16] [1979] 26 AR 247 ('Poochi').

[17] Ibid 256–257.

[18] Leigh (n 11) [128], citing Gardiner v Land Agents Board (1976) 12 SASR 458, 474.

[19] [1976] 1 All ER 763 ('Mood Music').

[20] Ibid 766.

[21] Zanknic Pty Ltd v Svelte Corporation Pty Ltd (1995) 61 FCR 171, 176; Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51, [70].

[22] King (n 8) [2].

[23] Ibid [7].

[24] [2010] QSC 296, [34].

[25] King (n 8) [11]-[12], citing Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23; H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667; O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534.

[26] King (n 8) [27].

[27] [2020] QIRC 32.

[28] Ibid [62].

[29] (1938) 60 CLR 336 ('Briginshaw').

[30] Ibid 362.

[31] Mood Music (n 19) 776.

[32] Briginshaw (n 29).

[33] Leigh (n 11) [128], citing Poochi (n 16) 256 – 257.

Close

Editorial Notes

  • Published Case Name:

    Dickerson v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Dickerson v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 163

  • Court:

    QIRC

  • Judge(s):

    Pratt IC

  • Date:

    26 Jun 2025

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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
2 citations
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
2 citations
Gardiner v Land Agents Board (1976) 12 SASR 458
2 citations
H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667
2 citations
Jacara Pty Ltd v Perpetual Trustees WA Ltd (2000) 106 FCR 51
2 citations
King v Workers' Compensation Regulator [2019] QIRC 134
2 citations
Leigh v State of Queensland (Department of Education) [2025] QIRC 23
2 citations
Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97
2 citations
Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd (1981) 36 ALR 23
2 citations
Mood Music Publishing Co Ltd v De Wolfe Ltd [1976] 1 All ER 763
2 citations
O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534
2 citations
Polizzi v Commissioner of Police (No. 2) [2017] WASC 166
2 citations
R v Deputy Industrial Injuries Commissioner; Ex parte Moore (1965) 1 QB 465
2 citations
Schubert v State of Queensland (Queensland Health) [2024] QIRC 128
2 citations
St Clair v Timtalla Pty Ltd [2010] QSC 296
2 citations
Zaknik Pty Ltd v Svelte Corporation (1995) 61 FCR 171
1 citation

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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