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CITE

Unreported Judgment

McHugh v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 222McLennan IC
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McHugh v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 222

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	McHugh v State of Queensland (Department of Transport and Main Roads) [2025] QIRC 222
PARTIES:	McHugh, Mary-Jane (Appellant) v State of Queensland (Department of Transport and Main Roads) (Respondent)
CASE NO:	PSA/2024/126
PROCEEDING:	Public Sector Appeal – Appeal against a fair treatment decision
DELIVERED ON:	21 August 2025
MEMBER:	McLennan IC
HEARD AT:	On the papers
ORDERS:	Pursuant to s 562C(1)(c) of the *Industrial Relations Act 2016* (Qld), the decision appealed against is set aside and substituted with the following decision: The Delegate's decision to substantiate Allegations 1 and 2 was fair and reasonable. Grounds for discipline do exist, pursuant to s 91(1)(h) of the Public Sector Act 2022 (Qld), with respect to Allegations 1 and 2 only. The Delegate's decision to substantiate Allegation 4 was not fair and reasonable.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding – where the appellant is employed as a senior human resource advisor – allegations that the appellant contravened a relevant standard of conduct – whether disciplinary findings were fair and reasonable – whether the appellant engaged in the conduct subject of the allegations – where allegations one and two can be substantiated – where allegation four cannot be substantiated – where the finding that discipline grounds exist was fair and reasonable
LEGISLATION & OTHER INSTRUMENTS:	Industrial Relations Act 2016 (Qld) s 284, s 285, s 451, s 562B, s 562C, s 564, s 571 Public Sector Act 2022 (Qld) s 3, s 4, s 9, s 40, s 90, s 91, s 129, s 131, s 133 Directive 05/23: Discipline cl 4, cl 7, cl 9
CASES:	Briginshaw v Briginshaw (1938) 60 CLR 336 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) State of Queensland (Queensland Health) v Hume [2024] ICQ 3 Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159

Reasons for Decision

[1]
Ms Mary-Jane McHugh ('the Appellant') is employed as a Senior Human Resource Advisor (AO6), with the Department of Transport and Main Roads ('TMR'; 'the Department'; 'the Respondent'), in the South Coast Region – a role she has permanently held since 4 July 2015.^[1]

[2]
This appeal concerns complaints made about Mr Peter Sommer's (contractor, Project team) poor workplace conduct, attempted guidance to him on better communication approaches, and his rather inflammatory response. Relevant too is Mr Sommer's 'return serve' criticism of a colleague's management style and project governance, and his expressed intention to pursue those matters. What flowed from that was a decision to end Mr Sommer's assignment with TMR early – and the fall out that followed.

[3]
Mr Sommer appears to have had a polarising effect on colleagues. Some found him "abrasive" and "unnecessarily aggressive;" while others considered him simply "direct."

[4]
This appeal concerns what occurred in various meetings between 5-6 May 2022.

Disciplinary Finding Decision – Subject of this appeal

[5]
Ms McHugh appeals against a disciplinary finding decision made by Ms Ann-Maree Knox, General Manager, Program Delivery and Operations ('the Delegate').

[6]
The Delegate's disciplinary finding decision was conveyed to Ms McHugh in correspondence dated 12 July 2024 (the Decision Letter).^[2] That is the subject of this appeal.

[7]
The Delegate decided to substantiate three allegations against Ms McHugh, following two investigations and the ensuing show cause process:^[3]

Allegation One

It is alleged that on or about 5 May 2022, as an employee of the Department you counselled and procured Shane McNamee's decision to cease the assignment of Peter Sommer by Public Sector People as nominated key personnel to the Department for reasons including that Mr Sommer raised concerns about, and indicated an intention to make a complaint about, Habeeb Mohamed-Hussain and the DH2LMS3 Project.

Allegation Two

It is alleged that on or about 6 May 2022, as an employee of the Department you aided and abetted Shane McNamee's decision to cease the assignment of Peter Sommer by Public Sector People as nominated key personnel to the Department for reasons including that Mr Sommer raised concerns about, and indicated an intention to make a complaint about, Habeeb Mohamed-Hussain and the DH2LMS3 Project.

Allegation Four

It is alleged that on or about 6 May 2022, as an employee of the Department, you inappropriately aided and abetted Shane McNamee's decision to cease the assignment of Peter Sommer by Public Sector People as nominated key personnel to the Department.

[8]
The Delegate decided that Ms McHugh was liable to discipline under s 91(1)(h) of the Public Sector Act 2022 (Qld), with respect to the substantiated Allegations 1 and 2:

…in that you have contravened, without reasonable excuse, a relevant standard of conduct, under the Code of Conduct for the Queensland Public Service (Code of Conduct), in a way that is sufficiently serious to warrant disciplinary action.^[4]

[9]
It has been observed that although some extracts from the Code of Conduct were reproduced in the Decision Letter, and some parts highlighted in bold font, there was no accompanying explanation for how the substantiated conduct was said to have constituted a breach of the identified sections.^[5]

[10]
Ms Knox also decided that Ms McHugh was liable to discipline under s 91(1)(a) of the PS Act, with respect to the substantiated Allegation 4:

…in that you have engaged in serious under performance of your duties, including by performing your duties carelessly, incompetently or inefficiently. I consider that there was an appropriate process in place to end Mr Sommer's assignment, and you did not follow it when advising Mr McNamee that the Department could communicate the Assignment Decision to Public Sector People under the Quick Guide. It was incumbent upon you to be appropriately familiar with the Department's processes and follow them when advising Mr McNamee in your role.^[6]

[11]
The Decision Letter further proposed a disciplinary penalty in the following terms:

I am currently giving serious consideration to imposing the disciplinary action of reduction of classification level to AO5(4) and a consequential change of duties for a period of 12 months.

My reasoning is as follows:

You are a longstanding employee of more than 17 years, who has worked in the Department since 21 August 2006. From 4 July 2015, you have held the position as Senior Human Resources Advisor, classification level AO6. In your role, you are required to advise and provide guidance on the application of relevant workplace laws and the Department's policies and procedures. Your responsibilities span all aspects of the human resource function, and you are expected to deliver a high quality human resource service, including in relation to complex and sensitive workplace issues.

It is concerning to me that, given your role and your experience in human resources, you did not adequately turn your mind to or thoroughly investigate the impact of Mr Sommer having raised concerns about Mr Mohamed-Hussain and the DH2LMS3 Project (nor Mr McNamee's commitment to action items to address these concerns), on Mr McNamee's subsequent decision to cease Mr Sommer's assignment prior to its contracted end date (which you agreed to and 100% supported).

In addition, it is incumbent on you to comply with the Code of Conduct and other applicable policies and procedures regarding the management of complaints.

In providing natural justice to you, no final decision about the disciplinary action to be taken will be made until you have been afforded the opportunity to respond.

You have 14 days from the date of receipt of this letter to show cause as to why the above disciplinary action should not be imposed. Your response will be considered in my final decision on the disciplinary action, together with consideration of the following:

seriousness of your conduct;

your overall work record, including that you were reminded of the Department's expectations, particularly given your leadership role in the region, in relation to the substantiated allegation arising out of the complaint by Mr Glenn Bird, Senior Advisor (Property), South Coast Region of 19 October 2021 of inappropriate actions, behaviour and/or conduct by you;

any explanation you provide;

any extenuating circumstances which may have had a bearing on your actions;

the degree of risk to the health and safety of employees and customers;

the impact the disciplinary finding has on your ability to perform the duties of your position; and

the impact of your conduct on the public and customer confidence in the Department.^[7]

[12]
As that proposed disciplinary penalty is not a decision that has yet been made, it cannot be subject of this appeal.

[13]
On 2 August 2024, Ms McHugh filed an appeal against the disciplinary finding decision.

[14]
I issued Directions Orders to hear the parties. The disciplinary finding decision was stayed, until the determination of the Appeal or further order of the Commission.

Jurisdiction

[15]
Section 131(1)(d) and s 129 of the PS Act provides that a person can appeal against a 'fair treatment decision' the public sector employee believes is unfair and unreasonable.

[16]
Section 133(d) of the PS Act outlines who may appeal the decision – "a public sector employee aggrieved by the decision". As an employee of the Respondent, Ms McHugh is eligible to appeal.

[17]
I am satisfied that the disciplinary finding decision made pertaining to Ms McHugh, contained in the Decision Letter dated 12 July 2024, can be appealed.

[18]
I have included the relevant extracts of the PS Act below.

Timeframe to Appeal

[19]
Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

[20]
The decision was given to Ms McHugh on 12 July 2024.

[21]
The Appeal Notice was filed with the Industrial Registry on 2 August 2024.

[22]
I am satisfied that the Appeal was filed by Ms McHugh within the required timeframe.

Appeal principles

[23]
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."^[8] That is the question for my determination.

[24]
A public service appeal under the IR Act is not by way of rehearing,^[9] but involves a review of the decision arrived at and the decision-making process associated therewith.

[25]
Findings made by the decision maker which are reasonably open to them, should not be disturbed on appeal.

[26]
Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

[27]
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

[28]
In accordance with the Directions Orders issued, the parties filed written submissions.

[29]
The Appellant's Submissions were filed on 13 August 2024.

[30]
The Respondent's Submissions were filed on 9 September 2024, along with several attachments:

Attachment	Documents
1	Letter from Mr Sommer to Neil Scales (then Director-General of the Department)
2	Mapien Report
3	Verifact Report
4	First FSCN
5	Letter from Saines Legal to Decision Maker
6	Second FSCN
7	Letter from Saines Legal to Sally Stannard (Director-General of the Department)
8	Response to Second FSCN
9	Email from S Capri
10	SSCN

[31]
The Appellant's Reply Submissions were filed on 13 September 2024. Attached to those submissions was a matrix titled "Annexure A – Summary of Evidence in Relation to Reasons for Mr Sommer's Termination."

[32]
The Appeal Notice was filed 2 August 2024 and contained the following attachments:

Attachment	Date	Description
1	12 July 2024	Disciplinary Finding Decision
2	9 November 2023	First Show Cause Notice
3	20 December 2023	Letter from Saines Legal to Ms Ann-Maree Knox, General Manager (Program Delivery and Operations)
4	18 March 2024	Email from Mr Andrew Matters to Ms Mary-Jane McHugh
5	20 March 2024	Letter from Saines Legal to Ms Ann-Maree Knox, General Manager (Program Delivery and Operations)
6	20 March 2024	Second Show Cause Notice
7	5 April 2024	Letter from Saines Legal to Ms Sally Stannard (Director-General of the Department)
8	5 April 2024	Response to Second Show Cause Notice
9	3 March 2022	Advice from Procurement Team regarding termination of contractor engagement
10	6 May 2022	File note produced by Ms Mary-Jane McHugh after 5 May 2022 meeting

[33]
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' positions in my consideration of each question to be decided.

Relevant provisions of the PS Act

[34]
The main purpose of the PS Act is:

… to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.^[10]

[35]
How that is primarily achieved is set out at s 4 of the PS Act, including (emphasis added):

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by —

…

creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by-

providing for the key rights, obligations and employment arrangements of public sector employees; and

…

ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

setting a positive performance management framework for public sector employees; and

…

[36]
Section 40 of the PS Act relevantly provides as follows:

In recognition that public sector employment involves a public trust, the work performance and personal conduct of each public sector employee should be guided by the following principles (the work performance and personal conduct principles)—

achieving excellence in service delivery;
ensuring the effective, efficient and appropriate use of public resources;
giving effect to government policies and priorities;
collaborating with other public sector entities with a focus on public sector-wide priorities in addition to priorities specific to particular public sector entities, if appropriate and while recognising the need for independence of particular public sector entities;
providing sound and impartial advice to government;
continuously improving work performance, including through training and development;
carrying out duties impartially and with integrity;
acting honestly, fairly and in the public interest;
interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity;
observing all laws relevant to the employment;
ensuring the employee's personal conduct does not reflect adversely on the reputation of the public sector entity in which the employee is employed;
observing the ethics principles under the Public Sector Ethics Act 1994, section 4;
complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18.

A public sector manager must take all reasonable steps to ensure each public sector employee under the manager's management is aware of the following matters—

the work performance and personal conduct expected of the employee;

the public sector principles;

the values of the public sector entity in which the employee is employed;

for a public service employee—the values of the public service;

what constitutes corrupt conduct under the Crime and Corruption Act 2001.

Also, a public sector manager must—

provide working environments in which all public sector employees are—

treated fairly and reasonably; and

assigned work according to the employee's responsibilities as reflected in remuneration rates; and

consider and give effect to the following matters when undertaking management responsibilities—

the public sector principles;

the values of the public sector entity in which the employee is employed;

if the manager is a public service employee—the values of the public service; and

ensure fairness and integrity in performing managerial functions, including when making decisions; and

undertake best practice human resource management, including the application of the positive performance management principles in the following ways—

pro-actively managing the work performance and personal conduct of public sector employees;

constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector;

taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises; and

take personal responsibility for development as a manager.

A chief executive of a public sector entity has overall responsibility for—

ensuring the entity performs its functions in a way consistent with—

the main purpose of the Act; and

the ways in which the main purpose of the Act is to be primarily achieved; and

the public sector principles; and

ensuring managers within the entity perform managerial functions in accordance with the positive performance management principles; and

ensuring public sector employees have access to fair and independent reviews and appeals; and

ensuring the entity has workforce and human resource planning and practices, including systems for the regular review of employment arrangements for public sector employees.

Note—

If the chief executive is an accountable officer under the Financial Accountability Act 2009, see also the responsibility of the chief executive to develop the strategic plan and operational plan under the Financial and Performance Management Standard 2019, section 8.

[37]
Section 90 of the PS Act defines the following terms (emphasis added):

disciplinary finding means a finding that a disciplinary ground exists.

disciplinary ground means a ground for disciplining a public sector employee under section 91.

[38]
Section 91 of the PS Act relevantly provides as follows:

A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

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

A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.

In this section—

…

relevant standard of conduct —

for a public sector employee, means -

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

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

…

Relevant provisions of the Directive

[39]
Directive 05/23: Discipline (Discipline Directive) relevantly provides (emphasis added):

4. Principles

…

4.2Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.
4.3Under the Human Rights Act 2019 decision makers have an obligation to:

a.
act and make decisions in a way that is compatible with human rights, and
b.
give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

…

4.7A 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:

a.
the end of unacceptable conduct
b.
early resolution
c.
preserving working relationships
d.
avoiding an unnecessary and disproportionately protracted dispute

4.8Discipline 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.
4.9A 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.
4.10Discipline under chapter 3 of the Act must:

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
b.
be fair, appropriate and proportionate to the seriousness of the work performance matter, and
c.
comply with the requirements of the Act, the provisions of this directive and the principles of procedural fairness

…

7.Requirements to commence a discipline process
7.1Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
7.2Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

a.
the seriousness of the employee's personal conduct and/or work performance, and
b.
whether the matter should be resolved through management action instead, and
c.
whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
d.
whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
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
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
g.
whether further information is required to make a decision to commence a disciplinary process, and
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.

7.3Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.
9.Discipline process

…

9.2The 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.
9.3Show cause process for disciplinary finding

a.
the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
b.
written details of each allegation in clause 9.3(a) must include:

i.
the allegation
ii.
the particulars of the facts considered by the chief executive for the allegation
iii.
the disciplinary ground under section 91 of the Act that applies to the allegation

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
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
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
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.

…

Definitions

…

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.

…

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements – the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

Standard of proof

[40]
The Delegate determined to substantiate the allegations on the 'balance of probabilities'. The wording of Briginshaw v Briginshaw ('Briginshaw')^[11] is incorporated into the Disciplinary Directive, and there is no contention that said principle does not apply in this instance.

[41]
The Discipline Directive prescribes that:

… 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.^[12]

[42]
In civil matters, the standard of proof is the balance of probabilities.^[13] The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:

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

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.^[14]

'Fair and Reasonable'

[43]
In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,^[15] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.

[44]
In State of Queensland (Queensland Health) v Hume,^[16] his Honour explained (citations omitted):

[41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.

[42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.

[43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.

[44] Similar arguments made to the Commission have been rejected by the Commission.

[45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.

…

[48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:

that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and
that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.

[49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.

[50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.

[51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.

…

[53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

Appeal Grounds

[45]
Ms McHugh's appeal against the Delegate's disciplinary finding decision was brought on the following grounds:^[17]

Factual determination – Allegations 1 and 2

The decision to substantiate Allegations 1 and 2 were not fair and reasonable.^[18]
The Delegate failed to consider the entirety of the evidence about Mr Sommer's behaviour during the 5 May 2022 meeting.
The Delegate should not have made adverse findings of credit against Ms McHugh because her "purported knowledge of the First Meeting was inconsistently relayed."^[19]
The Delegate should not have found there were "inconsistencies in the reason that Mr Sommer's engagement was ended."^[20]
Ms McHugh denied that she "counselled and procured" and "aided and abetted" the decision to terminate Mr Sommer's engagement because he raised concerns about, and intended to complain about, Mr Mohamed-Hussain and the Project because^[21] Ms McHugh first sought information on the termination of Mr Sommer's contract early on 1 March 2022, "well before Mr Sommer raised any alleged complaints."^[22]

Factual determination – Allegation 4

The decision to substantiate Allegation 4 was not fair and reasonable.^[23]
The Respondent has now conceded that "it was not reasonably open to the Decision-Maker to substantiate Allegation Four and make the consequential disciplinary finding under s 91(1)(a) of the PS Act."^[24] That withdrawal of Allegation Four is appropriate.

Procedural matters

The Decision is unfair and unreasonable due to defective procedure alone.^[25]
The Delegate did not act in accordance with the Directive, apply correct legal tests, afford Ms McHugh procedural fairness and act fairly and reasonably.^[26]
The Delegate failed to identify and explain how the substantiated conduct in Allegations 1 and 2 contravened the Code of Conduct.^[27]
The process was infected by "conflict concerns."^[28] Specifically, that Mr Andrew Matters had a personal friendship with Mr Sommers, through Mr Matters' spouse Ms Emma McGregor.
The Verifact Report should not have been relied upon by the Delegate because its scope is the same as the "retracted allegations initially posed to the Appellant within the initial show cause letter dated 9 November 2023".^[29]
The Mapien Report failed to interview two key witnesses, Ms Opie and Ms Rough. Further, Ms McHugh was not questioned in detail as to "the reasons Mr McNamee provided for making the decision to terminate Mr Sommer's engagement, and why [she] agreed with such decision."^[30]
Mr Matters and Mr Capri "were removed from the first of the investigations due to personal interest conflicts." However, on 19 June 2023, Ms McHugh learned that "Mr Capri and Mr Matters were involved in facilitating the second investigation, [when] she queried this with Mr Capri…[he] informed her that there was no longer any conflict of interest and he and Mr Matters would be inviting [her] to a meeting."^[31]
The Delegate's reference to "the substantiated allegation arising out of the complaint by Mr Glenn Bird, Senior Advisor (Property), South Coast Region of 19 October 2021 of inappropriate actions, behaviour and/or conduct by you" was both exaggerated and irrelevant. No disciplinary action was warranted or resulted from that incident.^[32]
More than two years has elapsed since the May 2022 meetings. In that time, Ms McHugh has acted in higher duties "(being AO8 Regional Business Manager between 13 July 2022 and 14 July 2023)"^[33] and instituted a proper process addressing deficiencies with early cessation of a contractor.^[34]

[46]
My consideration of whether the decision appealed against is fair and reasonable is informed by:

whether Ms McHugh engaged in the conduct, subject of Allegations 1 and 2;
whether the chief executive is "reasonably satisfied" that the alleged conduct constituted a breach of the Code of Conduct "without reasonable excuse,"^[35] with respect to Allegations 1 and 2;
whether Ms McHugh was afforded procedural fairness;
whether the disciplinary finding decision was fair and reasonable.

Summary of Findings

[47]
My determinations may be summarised as follows:

The Delegate's determination to substantiate Allegations 1 and 2 was fair and reasonable because the conduct alleged occurred, on the balance of probabilities.
The chief executive can be "reasonably satisfied" that disciplinary grounds exists, with respect to Allegations 1 and 2, because I have determined that a breach of the Code of Conduct "without reasonable excuse" did occur.
The Respondent conceded that the Delegate's determination to substantiate Allegation 4 was not fair and reasonable.
The process followed by the Delegate did afford Ms McHugh procedural fairness.

Did Ms McHugh engage in the conduct, subject of Allegations 1 and 2?

[48]
I will now consider whether the Delegate's determination to substantiate the allegations was fair and reasonable.

[49]
The parties' submissions and various attachments provide their accounts at what occurred in the various meetings held on 5-6 May 2022. Those materials inform the below presentation of the relevant events and considerations.

Complaints made about Mr Sommer, prior to 5 May 2022 meeting

[50]
Prior to the meeting held with Mr Sommer on 5 May 2022, Ms McHugh was aware of some complaints about his workplace conduct.^[36]

[51]
In March 2022, Mr Nelson Leon (external stakeholder) had complained about Mr Sommer's "unprofessional" behaviour. Mr Leon complained to Mr Shane McNamee (Manager, Project Planning and Corridor Management) and Mr Glen Bird (Property Team Leader).

[52]
Following Mr Leon's complaint, Ms McHugh sought advice from the Procurement Team regarding the appropriate process for terminating a contractor's engagement. She relayed the information obtained to Mr McNamee and Mr Bird.^[37]

[53]
On 7 April 2022, Mr Liam McNaught (contractor, Communications team) complained to Ms McHugh about Mr Sommer's "unnecessarily aggressive" behaviour towards him. Though that complaint was later withdrawn.

5 May 2022 meetings

Meeting between Mr Sommer, Mr McNamee and Ms Rough

[54]
On 5 May 2022, Mr McNamee and Ms Sarah Rough (Human Resources Advisor) met with Mr Sommer. From their perspective, the purpose of that meeting was to discuss Mr McNaught's withdrawn complaint, provide guidance to Mr Sommer about appropriate workplace conduct "going forward," and to advise Mr Sommer that his "assignment would end with the expiration of his contract (being 30 June 2024)."^[38]

[55]
However, Mr Sommer was adamant that Mr McNaught's complaint was baseless and demanded the opportunity to formally respond to it. Mr Sommer then also seized the opportunity to progress his own complaint against Mr Habeeb Mohamed-Hussain (Project Manager for the Daisy Hill to Logan Motorway Project), express governance concerns with the DH2LMS3 Project, and asked to meet with Mr Andrew Wheeler (Regional Director) about it. If denied that opportunity, Mr Sommer flagged he would complain to Mr Neil Scales (then Director-General) and the Integrity Commission.^[39]

[56]
The meeting did not go well.

[57]
A number of action items were recorded in the file note of the 5 May 2022 meeting:

A meeting with Mr Mohamed-Hussain would occur about Mr Sommer's complaint. Mr McNamee would follow up.

Mr McNamee would try to arrange a meeting between Mr Sommer and Mr Wheeler, to enable the governance concerns to be raised. Mr Sommer agreed to prepare a written outline of his concerns.

Ms Rough would provide Mr Sommer with an opportunity to provide a respond to Mr McNaught's withdrawn complaint

[58]
Mr McNamee also accepted Mr Sommer stated he would complain to the Director-General about the project's management. Mr McNamee told the investigator that:

It was just a, a very long rant which is quite concerning…

…

Well anyone's entitled to do anything…

…

At this point in time…he had an engagement until, with TMR until the 30^th of June…^[40]

[59]
With respect to Mr Sommer's stated intention to complain to the Crime and Corruption Commission, Mr McNamee told the investigator that:

Who knows what he was thinking.

…

…I don't know whether he was trying to lodge a, lodge a formal complaint about the fact that he didn't follow TMR policy. I don't know what it was about.

…

He kept going on about whistleblowers…Whatever that means.^[41]

[60]
Mr Sommer denied he was aggressive at the meeting. With respect to the non-renewal of his assignment, Mr Sommer told the investigator that he "saw that coming" – but that was because of project delays, workload and work direction.^[42] The Appellant's submissions infer the notified end of contract upon expiry was related to Mr Sommer's workplace conduct.

[61]
Ms Rough was also at the meeting. Her assessment of whether Mr Sommer's conduct at the meeting meant his continued employment was untenable was that:

There was definitely a question mark about it…but that's a hard one to say.

…

it was probably, it's still to be resolved at that point.^[43]

[62]
On the basis of the recorded action items, Ms Rough's evidence to the investigator, and Mr McNamee's concerns but confusion, it is clear to me that the decision to end Mr Sommer's contract was not made at that time.

Meeting between Ms Rough and Ms McHugh

[63]
Later the same day, Ms Rough recounted what had occurred at the meeting to Ms McHugh.

[64]
Ms Rough had a sense that the matter was one that "was probably escalating to a senior HR advisor" and so took care to relay to Ms McHugh that "There appeared to be threats of making further complaints and I thought that that was definitely something for her to be aware of."^[44]

[65]
According to the Appellant's submissions, Ms McHugh understood from the conversation with Ms Rough that:^[45]

"Mr Sommer expressed that he was unhappy" that Mr McNaught had complained about him;

Ms Rough told Mr Sommer the complaint "could be addressed by them having a conversation about expectations and how to raise issues" with colleagues;

Mr Sommer replied he knew "how to conduct himself after 30 years of experience and would not be changing his approach";

Mr Sommer remarked that the complaint was a "power play" and suggested Mr McNaught should have addressed his concerns directly with him;

As a result of Mr Sommer's response, Mr McNamee and Ms Rough "held serious concerns regarding Mr Sommer's ability to continue to work with the team until the end of his assignment;"

Mr McNamee told Mr Sommer "they were not intending on renewing his assignment post 30 June 2024";

Mr Sommer expressed dissatisfaction with Mr Habeeb Mohamed-Hussain's (Project Manager for the Daisy Hill to Logan Motorway Project) management style;

"Mr McNamee acknowledged that he was aware that Mr Sommer had raised concerns with Mr John McCormack" (Project Planning Team leader) about Mr Habeeb Mohamed-Hussain's management and that he was aware that "Mr McCormack was going to address those concerns;"

Mr Sommer remarked that "someone should be held accountable for Mr Nelson being sent bankrupt;"

Mr Sommer suggested "Mr McNamee should call Mr Warren McWright, who worked at Cross River Rail, but was also the District Director (South Coast) of the Department for a period of time, about how serious he is and what he knows;"

Mr Sommer "demanded a meeting with the Department's acting regional director to discuss his concerns…that the project had 'no governance' and 'no scope,' and if he wasn't afforded this meeting, he would complain to the Integrity Commission and/or Mr Neil Scales, being the previous Director-General;"

"Mr McNamee attempted to explain the project governance with Mr Sommer, however Mr Sommer continued to speak over Mr McNamee;"

"Mr Sommer's behaviour was described as concerning, confrontational and aggressive and appeared to be retaliatory to be being counselled in relation to the McNaught Complaint and/or being told his assignment was not going to continue post its expiry."

Meeting between Mr McNamee, Ms Opie and Ms McHugh

[66]
Later the same day, Mr McNamee and Ms Cathryn Opie (Acting Regional Business Manager) met with Ms McHugh about the meeting with Mr Sommer.^[46] Ms McHugh stated that:^[47]

Mr McNamee was concerned about Mr Sommer's behaviour during the meeting. Specifically, Mr Sommer's "response to Ms Rough's attempts at providing feedback and guidance following the McNaught Complaint, which was confrontational, aggressive and not conducive with him being able to continue to work with the project team, including statements that 'he was not going to change his ways'";

Mr McNamee and Ms Opie said they would inform the Regional Director and Deputy Regional Director regarding their concerns about Mr Sommer's poor workplace conduct and his 5 May 2022 comments "regarding the project integrity";

Mr McNamee and Ms Opie mentioned that Mr Sommer's conduct at the 5 May 2022 meeting seemed consistent with his conduct previously complained about by others;

Mr McNamee said he wanted to end Mr Sommer's assignment early due to his poor workplace conduct "but would first seek approval from the Directors;"

"As a Senior HR Advisor, [Ms McHugh] provided Mr McNamee advice that he could cease the assignment of Mr Sommer due to" his conduct at the 5 May 2022 meeting and the previous conduct complaints that had been made against him, "in accordance with his contract, with the approval of the labour hire company, being the Public Sector People";

On that basis, "Mr McNamee requested that [Ms McHugh] contact the Public Sector People to obtain their approval to end Mr Sommer's assignment early."

[67]
Mr McNamee told the investigator that he shared his concerns about Mr Sommer with Ms Opie and Ms McHugh as:

Peter was aggressive; he was making threats; he was abrupt and confrontational; and it was quite concerning.

…

…following that meeting I was concerned with interactions that he may have had with the rest of the project team.

…

…need to ensure that we…provide a safe and positive working environment…^[48]

[68]
Self-evidently, the "threats" referred to by Mr McNamee were Mr Sommer's assertions that he would pursue his complaints about management and governance of the project.

[69]
Ms Opie told the investigator that Mr McNamee expressed concerns about Mr Sommer's refusal to take onboard the behaviour expectations "…in relation to moving forward over the next couple of weeks prior to his contract finishing…"^[49] Ms Opie stated her concern was about Mr Sommer's behaviour, and the past complaints that had been made about that. Ms Opie said that Mr Sommer's complaints about the project management and governance did "Not really" factor in the decision to terminate the contract early – adding she was unconcerned about that because she "was aware of the governance of the project" and Mr Sommer was not involved in that role. In Ms Opie's view:

…I didn't think it would be an issue or something that we should be…taken seriously, but something that should be impacting the decision we made in regards to his contract because I didn't think it was an issue.^[50]

[70]
From Ms Opie's evidence, she was unconcerned about Mr Sommer's threats to complain about the project because she was certain the complaints were baseless.

[71]
Ms Opie told the investigator that before speaking with Public Sector People (labour hire provider) the following day, she had contacted the Regional Director to advise "these were the issues around behaviour, this was the process we were going to follow, was he happy with that."^[51] That aligns with the Regional Director's account that he was advised of conduct concerns - but not Mr Sommer's intention to make complaints about the project.

[72]
Ms McHugh's role at the meeting was explained by Ms Opie as:

If there are any discussions around staffing, whether they be a TMR staff member or a contractor, I would always seek advice from HR to ensure that I have the correct information…I would assume Shane felt the same way.^[52]

…

He sought advice from those within the Region, who would normally provide advice in this sort of situation. I guess it's the same process that I would follow, and I have actually been through a similar thing with a contractor myself.^[53]

[73]
Ms McHugh's file note dated 6 May 2022 recorded that the meeting between herself, Mr McNamee and Ms Opie was held "to discuss concerns raised about the conduct of Peter Sommer…during a meeting on…5^th May 2022."^[54] I consider that Mr Sommer's "conduct" at the meeting included both his reaction to the counsel provided to him about appropriate behaviour towards colleagues and his "very long rant" about project issues. That is because Ms McHugh's file note also provided that the reasons for concluding Mr Sommer's contract early were two-fold (emphasis added):

…he was unwilling to address his behaviour towards members of the project team and the significance of the comments around undertaking a whistle blower exercise against TMR that continued access to our systems was of concern…^[55]

[74]
It is clear from the evidence that:

Mr McNamee was the person, with the designated authority from TMR, who decided to end Mr Sommer's engagement early, but that he wanted to inform the Directors before advising Mr Sommer;

The decision to end Mr Sommer's contract early was made at the 5 May 2022 late afternoon meeting between Mr McNamee, Ms Opie and Ms McHugh – "as such the evidence of Mr Sommer's alleged conduct on 6 May 2022 as provided by Mr McCormack and Mr Aitcheson is irrelevant to the decision to end his assignment";

Mr McNamee's decision was "100%" supported by Ms Opie and Ms McHugh;

The reason Ms McHugh was at that meeting was to provide HR advice;

Ms McHugh advised that Public Sector People needed to be contacted and agree, in order to cease Mr Sommer's assignment early

The reasons for the decision to end Mr Sommer's assignment early were because both he was unwilling to change the way he interacted with colleagues and also he was going to "undertak[e] a whistle blower exercise" so it was important his access to TMR systems was closed down; and

Ms McHugh's advice to Mr McNamee was limited to the process of ending a contractor's engagement (liaison with Public Sector People and contract notice period) and whether there was sufficient reason to do so (poor workplace behaviour). Ms McHugh did not turn her mind to the risks of early termination of assignment, in circumstances where Mr Sommer may argue that was adverse action in response to his expressed intention to complain, though she should have done so.

[75]
As earlier noted, by the time of the 5 May 2022 meeting, Mr McNaught had withdrawn his complaint. While Mr McNamee and Ms Rough found Mr Sommer's demeanour in the meeting challenging, it was not in itself enough to end his assignment early. That is because the meeting concluded with some action items, indicating the 'next steps' that would be taken to continue to progress Mr Sommer's concerns. That would be improbable if Mr McNamee thought that Mr Sommer would not be working with TMR the next day.

[76]
The "whistle blower" threat was an entirely separate matter. Mr McNamee did not appear to understand its significance, telling the investigator that "He kept going on about whistleblowers…Whatever that means."^[56] Ms Opie was unconcerned about it, as she believed Mr Sommer's complaints were baseless. The reason for Ms McHugh's attendance at the meeting was to provide advice on proper HR processes. Despite Ms McHugh's submissions that she had received no training on the matter and that TMR's procedures on ending contractor's assignments were then inadequate, it remained that Ms McHugh was a Senior Human Resources Advisor (AO6) with TMR and had held that role for about 7 years at that time. Her subordinate, Ms Rough, knew that Mr Sommer's "threats of making further complaints"^[57] was a relevant matter to bring to Ms McHugh's attention. Mr Sommer knew that action could not be taken against him for raising a complaint, asking Ms McHugh at the meeting the following day: "Are you not aware of the whistle blower protections?"^[58] It is inconceivable then, that Mr Sommer understood the provisions but Ms McHugh was unaware of its significance. As an experienced Senior HR Advisor, Ms McHugh ought to have turned her mind not only to whether Mr Sommer's assignment could be ended early (reason, agreement of Public Sector People, and contract terms such as notice) – but she should also have advised Mr McNamee on whether it should be ceased before the assignment end date in such circumstances, especially there was less than two months to go. Whether or not the attendees could be confident that Mr Sommer's allegation(s) were baseless were not the issue.

Meeting between Ms McHugh and Mr Lahey

[77]
Later the same day, Ms McHugh spoke with Mr Scott Lahey (HR Officer who had spoken with Mr McCormack regarding Mr Sommer's concerns with Mr Mohamed-Hussain's management). Mr Lahey told Ms McHugh that Mr McCormack had said:^[59]

He "was going to try and resolve Mr Sommer's concerns himself;" and

"Mr Sommer's behaviour in the 'pod' had been 'confronting,' where he made comments loudly about Mr Mohamed-Hussain and Mr McNaught, which he viewed as 'disrespectful towards other team members and intentionally loud in the open pod so others could hear'."

6 May 2022 meetings

Meeting between Mr McNamee, Ms Opie and Ms McHugh

[78]
On 6 May 2022, Mr McNamee and Ms Opie again met with Ms McHugh about their concerns with Mr Sommer's conduct. Ms McHugh submitted that at that meeting:^[60]

"Mr McNamee and Ms Opie confirmed that Mr Sommer's assignment was to be terminated early;"

"Ms Opie confirmed that Mr Paul Noonan, Regional Director of the Department had been advised of the situation and supported the proposed termination;"

Ms McHugh confirmed she would "contact Public Sector People to arrange a meeting and seek their approval."

[79]
Ms McHugh's file note dated 6 May 2022 noted that the purpose of that meeting was to "confirm actions for the end of Peter Sommer's assignment" and that the termination clause in his contract provided notice of "10 business days or until the end of the engagement whichever is sooner."^[61]

Meeting between Ms Opie, Ms McHugh and Ms Simmons

[80]
Later the same day, Ms McHugh followed up on her commitment to Mr McNamee in a teleconference with Ms Opie and Ms Wallentina Simmons (Consultant, Public Sector People). Ms McHugh submitted that at that meeting:^[62]

Ms McHugh told Ms Simmons of the complaints about Mr Sommer's poor workplace conduct, including how he responded to Ms Rough's attempted guidance in the 5 May 2022 meeting;

Ms McHugh outlined the concerns/allegations Mr Sommer raised during the [5 May 2022 Meeting], including that Mr Sommer had mentioned going to the integrity commission and raising concerns with Mr Scales, the Department's previous Director-General, if he was not afforded a meeting with the Regional Director;

"Ms Opie raised issue with Mr Sommer's access to the Department's systems due to the stakeholder information contained within this system, as the information may be subject to provisions within the Privacy legislation;"

Ms McHugh advised that "system access is always restricted when ceasing a contractor's assignment as a result of conduct concerns [because it]…contains a significant amount of…information pertaining to external stakeholders;"

Ms McHugh "requested that Ms Simmons review the terms of Mr Sommer's contract and confirm that the Public Sector People were satisfied that Mr Sommer's behaviour was grounds for termination."

[81]
According to the file note dated 6 May 2022, Ms McHugh told Ms Simmons that they wished to end Mr Sommer's assignment early because of his behaviour towards colleagues and "the significance of his comments around undertaking a whistle blower exercise".^[63]

[82]
Ms Simmons then called back Ms McHugh and Ms Opie to advise Public Sector People "decided it was appropriate to end Mr Sommer's engagement due to his conduct." Ms Simmons agreed to attend the meeting, with Ms McHugh and Mr McNamee, at which Mr Sommer would be informed of the decision to terminate his engagement.^[64]

[83]
Within the space of just half an hour, Ms Simmons both became aware of the desire to end Mr Sommer's assignment early, Ms McHugh's expressed reasons for this, and called back to agree to it.

Meeting between Mr McNamee, Ms McHugh, Mr Sommer and Ms Simmons

[84]
Later the same day, Ms McHugh, Mr McNamee, Ms Simmons and Mr Sommer met by teleconference. Ms McHugh submitted that at that meeting:^[65]

Ms McHugh advised Mr Sommer that the Department had decided to terminate his contract due to "concerns regarding his behaviour," specifically his poor conduct at the 5 May 2022 meeting and the conduct complained of by Mr McNaught.

Mr Sommer retorted that his engagement was being terminated because of the concerns he himself had raised at the 5 May 2022 meeting.

Ms McHugh repeated that "the decision to end his assignment early was not due to any concerns [Mr Sommer] had raised, but due to [his behaviour at the 5 May 2022 meeting]… and the McNaught Complaint, which had caused his relationship with the project team to break down and become untenable."

Mr Sommer asserted that he would be "taking this matter further" and asked Ms McHugh "are you not aware of the whistleblower protections?"^[66]

Other relevant 6 May 2022 meetings

[85]
While other meetings related to Mr Sommer's exit from TMR occurred after that between various people on 6 May 2022, most notably at 12:30 pm, Ms Opie, Mr McNamee and Ms McHugh met. According to the 6 May 2022 file note (emphasis added):

…

It was discussed the potential conflict of interest that SCR [South Coast Region] believed Andrew Matters had with Peter Sommers. It was agreed that Steve Capri should be contacted.

It was discussed whether to contact Ethics team for advice. It was agreed we would wait for PDO HR to provide comment.

Cathryn Opie contacted PDO HR and spoke with Steve Capri, AO7 Principal HR Advisor, BMO who stated he had no issue with SCR ending the contractor's assignment. Steve Capri requested details to be sent in an email regarding the request for access to Peter Simmon's email account and supporting reasons for him to consider. Steve Capri advised he would confirm once he had time to read the email if we should proceed with contacting Ethics team about the matter.^[67]

…

[86]
I have found the Delegate's determination to substantiate Allegations 1 and 2 against Ms McHugh was fair and reasonable.

Allegation One

Allegation Two

[87]
Ms McHugh submitted that it was not open to the Delegate to substantiate these two allegations because:

the events did not occur as alleged;

others corroborated her version of events, so that should be preferred over Mr Sommer's account;

it was wrong to make adverse findings of credit against her;

the terminology used in the allegations infer adverse action;

she first inquired about the correct process for terminating a contractor's assignment some time earlier; and

she had a lengthy and unblemished disciplinary record.

Inconsistent reasons

[88]
Ms McHugh argued the decision to substantiate Allegations 1 and 2 were not fair and reasonable.^[68] That was because the Delegate failed to consider the entirety of the evidence, "whereby a number of witnesses described Mr Sommer's behaviour during the 5 May 2022 meeting as 'aggressive' and purport the reasons for his termination were"^[69] as reported by Ms McHugh. It was submitted that Mr McNamee, Ms McHugh, Ms Opie and Ms Rough "all provide consistent explanations of the reasons for the termination…"^[70]
[89]
As I have earlier observed, the evidence (including Ms McHugh's 6 May 2022 file note) referenced Mr Sommer's past aggressive interactions with colleagues, his poor conduct at the 5 May 2022 meeting and his complaints about the project management and governance.
[90]
The entirety of the evidence does not support Ms McHugh's submission that the reasons Mr Sommer's assignment was ended early was because of his aggressive workplace communication style.
[91]
I cannot accept the Appellant's submission.
[92]
Ms McHugh further contends that the Delegate should not have found there was "inconsistencies in the reason that Mr Sommer's engagement was ended,"^[71] as that was not a fair and reasonable conclusion to draw from her responses. Ms McHugh asserted there were consistent reasons for the termination of Mr Sommer's engagement.
[93]
Ms McHugh noted there had been "multiple concerns" raised by staff, contractors and stakeholders about Mr Sommer's "unprofessional and aggressive" workplace conduct.^[72] That is true. Though I note that matters raised had been either addressed or withdrawn, including the latest complaint made by Mr McNaught that was the stated reason for the 'expectations' discussion element of the 5 May 2022 meeting held with Mr Sommer.
[94]
Ms McHugh submitted that she "was aware that a meeting was held on 5 May 2022, where Mr Sommer's direct manager (Mr Shane McNamee), and a human resource advisor of the Respondent (Ms Sarah Rough), met with Mr Sommer to advise him of the standard of behaviour expected of him for the remainder of his engagement, which would not be continuing post the fixed term identified within his contract."^[73] The Appellant asserted she was informed by Ms Rough and Mr McNamee that Mr Sommer became "aggressive and confrontational" during the 5 May 2022 meeting and stated that was supported by their evidence.^[74] The Respondent submitted that "Ms McHugh alleges, but Mr Sommer denies, that Mr Sommer became aggressive and confrontational" during the 5 May 2022 meeting.^[75] While it may well have been the case that Mr Sommer became heightened, or even aggressive in manner, at the 5 May 2022 meeting, I have earlier explained why Mr McNamee's decision to cease his assignment early was not made at that time. That is supported by the evidence provided by Ms Rough to the investigator. The decision to terminate Mr Sommer's contract early was made later that day and the reasons expressed in Ms McHugh's contemporaneous file note are persuasive as to the reasons for that action.
[95]
Ms McHugh stated she "was then advised by Ms Rough and Mr McNamee that Mr Sommer's behaviour in the 5 May 2022 meeting was consistent with the previous complaints raised; namely that he was not willing to self-reflect nor take on negative feedback (stating that he would not be changing his behaviour), was defensive and aggressive…"^[76] While I accept that may have been true, it was not the real reason for the decision to end Mr Sommer's assignment. As Ms McHugh noted, there had been several instances of complaints about Mr Sommer's unfortunate workplace communication style, none of which were current open complaints – and none of which had yet resulted in his termination.
[96]
Ms McHugh stated that she "was aware that towards the end of the 5 May 2022 meeting, after receiving the feedback and being told that his contract would not be renewed, and his behaviour became aggressive, that Mr Sommer's began making threats"^[77] to complain about Mr Mohamed-Hussain's^[78] management style and "project governance" issues. Although Mr Sommer's comments may have been considered "retaliatory," it was not the first time he had raised those matters. Rather, he had seized the opportunity of the meeting to go on the front foot and agitate about the status of his earlier complaints.
[97]
Whilst Ms McHugh submitted that she understood Mr Sommer's "complaints were vague, without merit, and would be addressed with upper management",^[79] she was not expected to assess the complaints – but rather to recognise there was a problem with the fact of the complaints, and advise Mr McNamee accordingly of the general protections risk of proceeding with early termination of Mr Sommer's assignment in such circumstances.
[98]
Ms McHugh submitted that she was told by Mr Shane McNamee (Manager of Project Planning and Corridor Management;^[80] Mr Sommer's direct manager) and Ms Cathryn Opie (acting Regional Business Manager)^[81] on 5 May 2022 and 6 May 2022, that the reasons for wanting to terminate Mr Sommer's engagement was because of his workplace conduct."^[82] That may have been one reason for wishing to terminate Mr Sommer's contract early, but it cannot have been the sole reason. The evidence of the 6 May 2022 file note contradicted that assertion, where the reasons were identified as two-fold.
[99]
Ms McHugh stated that she had tried to provide "more detailed information each time she was questioned, or asked to respond to further allegations (with a shift in focus prompted by a different line of questioning or investigation scope), over the course of the Respondent's investigation/disciplinary process, which has spanned over 2 years..." and argued that her genuine attempt to provide "additional detail does not render her responses 'inconsistent'…"^[83] While that is commendable, I consider it was reasonably open to the Delegate to prefer the evidence of the contemporaneous file note dated 6 May 2022 to Ms McHugh's recollections some considerable period of time later.
[100]
Ms McHugh insisted that the reasons for wanting to terminate Mr Sommer's engagement was because of his workplace conduct and stated that was consistent with the evidence provided by other relevant witnesses, including Mr McNamee, Mr Aitcheson, Mr McNaught, Ms Rough, Ms Opie.^[84] I have not disagreed that TMR held concerns about Mr Sommer's workplace interactions, though have noted there were no unaddressed complaints about it at the time of the 5 May 2022 meeting and no intention to cease his assignment at that meeting, for the foregoing reasons.
[101]
On that point, I endorse the Respondent's submissions that "…it remained reasonably open to the Decision-Maker to find that the Appellant advised Mr McNamee on 5 May 2022 to end Mr Sommer's engagement for reasons which included that Mr Sommer stated an intention to complain about the Project, and that the Appellant facilitated the decision to end Mr Sommer's engagement on 6 May 2022 for reasons which included the significance of Mr Sommer's 'comments around undertaking a whistle-blower exercise against TMR'."^[85] The file note dated 6 May 2022 is evidence of that.
[102]
With respect to the Respondent's concern that "…there was inconsistency in the reason Mr Sommer's engagement was ended. The Decision-Maker considered evidence that this reason changed from being Mr Sommer's relationship with members of the project team being irretrievable to Mr Sommer displaying aggressive and erratic behaviour prior to the 5 May Meeting 1, and to Mr Sommer displaying that behaviour in the 5 May Meeting 1 also…",^[86] I consider that those reasons can comfortably coexist. Referring again to the evidence of the 6 May 2022 file note, I am persuaded that the real and motivating reason for the cessation of Mr Sommer's assignment was both that he was unwilling to accept the guidance offered contritely and instead upped the ante with respect to the withdrawn complaint of Mr McNaught – and that he then hijacked management's intended agenda to focus on what had not been done about his earlier complaint.
[103]
Ms McHugh submitted that the Delegate, and Respondent submissions, "place too great emphasis on the brief contemporaneous file note made by the Appellant on 6 May 2022 and fails to consider the evidence supporting the Reasons", including at Annexure A.^[87] For the foregoing reasons, I accept the Respondent's submissions that "…[It was "reasonably open to the Decision-Maker on the evidence available"]…[to give greater weight to] "contemporaneous file notes and the Appellant's evidence in the Mapien Report…over the Appellant's submissions in the Response."^[88]

Adverse findings of credit

[104]
Ms McHugh also argued that the Delegate should not have made adverse findings of credit against her because her "purported knowledge of the First Meeting was inconsistently relayed."^[89] Ms McHugh submitted that error infected the entire decision, rendering it unfair and unreasonable.
[105]
As Ms McHugh was not at the 5 May 2022 meeting held with Mr Sommer, she learned of what occurred in it from other management attendees, so was "unable to attest directly to its truth".^[90] The Delegate concluded that Ms McHugh had attempted to "minimise [her] involvement in the Assignment Decision, which weakens [her] credibility".^[91]
[106]
In its submissions, the Respondent sensibly conceded that "the Decision-Maker misinterpreted this approach as being inconsistent and undermining the reliability of the Appellant's account…that finding was not open to the Decision-Maker."^[92]
[107]
However the Respondent submitted that "the Decision-Maker's error in assessing the Response…is not of material significance, and does not render unfair or unreasonable the findings, in particular at paragraph 7(ss) of the SSCN, that contemporaneous file notes and the Appellant's evidence in the Mapien Report ought to be given greater weight over the Appellant's submissions in the Response. The Respondent contends that these findings were reasonably open to the Decision-Maker on the evidence available."^[93] I agree with the Respondent's position on the matter. While the Appellant submitted that it does in fact "demonstrate a fundamental defect in the Respondent's procedure, rendering the Decision unfair and unreasonable" because the decision maker stated "at paragraphs 7(h), 7(j), 7(l), 7(m), 7(n), 7(o), 7(p), 7(q), 7(uu), and 7(vv) that [it was] considered and resulted in an adverse finding of the Appellant's credibility,"^[94] my view is that cannot waive away the 'smoking gun' of the 6 May 2022 file note authored by Ms McHugh – the most contemporaneous account of the reasons for the decision to end Mr Sommer's assignment early.
[108]
I recognise that the Respondent has also accepted that it was not fair and reasonable for the Delegate to make an adverse finding of credit against Ms McHugh on those grounds. That does not mean though that the evidence of the file note dated 6 May 2022 and her evidence to the investigators should be dismissed.

Phraseology used in Allegations 1 and 2

[109]
Ms McHugh denies that she "counselled and procured" and "aided and abetted" the decision to terminate Mr Sommer's engagement because he raised concerns about, and intended to complain about, Mr Mohamed-Hussain and the Project.
[110]
Ms McHugh stated that^[95] the reasons for terminating Mr Sommer's engagement did not include his concerns about, and intention to complain about, Mr Mohamed-Hussain and the Project.^[96] I have earlier explained why I do not accept that argument. I believe part of the reason for the early cessation of Mr Sommer's assignment with TMR included those matters, as identified by Ms McHugh in the 6 May 2022 file note in particular.
[111]
The Respondent contends the phrases "counselled and procured" and "aided and abetted" come from the Macquarie Dictionary.^[97]
[112]
"The Appellant asserts such terminology…is akin to an allegation/s that the Appellant was 'involved in'…"^[98] taking adverse action^[99] against Mr Sommer because he "proposed to…exercise a workplace right"^[100] to "make a complaint or inquiry…in relation to [his] employment."^[101] That is because the words "counselled", "procured", "aided" and "abetted" describe a person "involved in" such contravention in the IR Act.^[102]
[113]
I agree with the Appellant's submission regarding the origin of those words. That is supported by the Delegate's reasoning in the Decision Letter, where she stated that Ms McHugh's (emphasis added):

…advice is flawed, because on the basis of your evidence and Response, you only considered the contractual issues and risks, not the risk of a general protections complaint being made on the basis that Mr Sommer's engagement was ended because of his complaint or intention to complain about Mr Mohammed-Hussain and the DH2LMS3 Project…^[103]

…

…The Assignment Decision would have amounted to unlawful adverse action had Mr Sommer been an employee of the Department…^[104]

[114]
I cannot understand why the Respondent's submissions failed to concede the obvious origin of the phrases contained in the Allegations.

Earlier inquiry about contract termination procedure

[115]
Ms McHugh submitted that she first sought information on the termination of Mr Sommer's contract early on 1 March 2022, "well before Mr Sommer raised any alleged complaints."^[105]
[116]
The evidence of the email reply from the Procurement team supports that was the case, following a complaint made by Mr Leon against Mr Sommer. However, although the information was sought and obtained by Ms McHugh at the earlier time, it was not acted on. Mr Sommer's assignment was not terminated early because Mr Leon had made a complaint.
[117]
Again, at the time of Mr McNaught's complaint, the information obtained about process for early termination of a contractor was not used. Mr Sommer remained in his role. Mr McNaught ultimately withdrew his complaint.
[118]
Mr McNamee and Ms Rough did not enter the 5 May 2022 meeting with an intention to cease Mr Sommer's assignment early, only to advise him that he would not be extended beyond the contract end date in almost two months' time. The evidence supported that Mr Sommer was not informed that was because of his poor workplace interactions, but was due to project delays and work arrangements. Mr Sommer's evidence was that he was unsurprised by that and "saw it coming."
[119]
The fact that information was sought, but not used, until after the meeting on 5 May 2022 does not help Ms McHugh's case.

Unblemished disciplinary record

[120]
Ms McHugh submitted that the Delegate's reference to "the substantiated allegation arising out of the complaint by Mr Glenn Bird, Senior Advisor (Property), South Coast Region of 19 October 2021 of inappropriate actions, behaviour and/or conduct by you" was both exaggerated and irrelevant. The outcome of that matter was that her comment to Ms McKenzie was determined to be behaviour that "could have been better" but did not warrant disciplinary action.^[106]
[121]
The Respondent submitted that the Delegate's reference to the 2021 incident was "irrelevant" to this appeal, though "may, at most, be relevant to the consideration of appropriate disciplinary action to be taken, if any."^[107]
[122]
While Industrial Commissioner Power observed that "A lack of disciplinary history does not preclude the Respondent from imposing a disciplinary penalty where it is warranted in the circumstances",^[108] in this case Ms McHugh has been employed by the department since 2006. Since that time, Ms McHugh worked her way up from an AO2 to now AO6 Senior HR Advisor, with only one minor matter ever raised against her – that was not even subject of a formal disciplinary process.

[123]
That is certainly worthy of weight in consideration of any appropriate penalty. However, this appeal is not against the proposed penalty – as it is a decision that is yet to be made.

[124]
In any case, the proposed penalty will likely require review now because the Respondent has accepted it was not open to the Delegate to find Allegation Four to be substantiated.

Ms McHugh's actions since May 2022

[125]
Ms McHugh submitted that although the disciplinary finding decision was said to be "reflective of the seriousness of the Appellant's behaviour in the workplace," more than two years has elapsed "since the HR Advice was given." In that time, Ms McHugh has acted in higher duties "(being AO8 Regional Business Manager between 13 July 2022 and 14 July 2023)"^[109] and instituted a proper process addressing deficiencies with early cessation of a contractor.^[110]
[126]
The Respondent submitted that was "irrelevant" to this appeal, though "may, at most, be relevant to the consideration of appropriate disciplinary action to be taken, if any."^[111]
[127]
I agree with the Respondent's submission. Ms McHugh's actions and award of higher duty responsibilities since May 2022 are not relevant to whether or not the conduct subject of Allegations 1 and 2 occurred. It is though most relevant to the Delegate's future consideration of appropriate disciplinary penalty, "if any." As the Respondent has conceded Allegation Four should not have been substantiated, it follows that the proposed disciplinary penalty should be reviewed before Ms McHugh's response is required. Ms McHugh's actions with respect to both establishing a proper process for early cessation of contractors' assignments and that she has acted in higher duties since that time may signpost that the disciplinary process experience has effected Ms McHugh's appreciation of the entirety of her role.

Finding

[128]
I have provided reasons for why I have accepted, or not accepted, the parties' respective arguments regarding Allegations 1 and 2. There were quite significant errors in the Delegate's reasoning for substantiating those two allegations. However, the reality of the entirety of the evidence about what occurred at the various meetings held on 5-6 May 2022 cannot be set aside. I concur with the Delegate's finding that:

On 5 May 2022, Ms McHugh "counselled and procured" Mr McNamee's decision to end Mr Sommer's assignment early (by agreement with Public Sector People), for reasons including that Mr Sommer raised concerns about, and indicated an intention to make a complaint about, Habeeb Mohamed-Hussain and the DH2LMS3 Project;

and

On 6 May 2022, Ms McHugh "aided and abetted" Mr McNamee's decision to end Mr Sommer's assignment early (by agreement with Public Sector People), for reasons including that Mr Sommer raised concerns about, and indicated an intention to make a complaint about, Habeeb Mohamed-Hussain and the DH2LMS3 Project.

[129]
For the foregoing reasons, it was open to the Delegate to find that Allegations 1 and 2 are substantiated.

Did Ms McHugh engage in the conduct subject of Allegation 4?

[130]
Allegation Four concerned the "correct 'contractual' method" of early cessation of Mr Sommer's contract.^[112]
[131]
The Respondent conceded the Delegate's decision to substantiate Allegation 4 was not fair and reasonable.^[113]
[132]
There is no need for me then to proceed to consider Allegation 4, as it is now "not substantiated".

Was the chief executive "reasonably satisfied" that a discipline ground has been established (as the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made)?

[133]
Section 90 of the PS Act defines a 'disciplinary finding' to be "a finding that a disciplinary ground exists". 'Grounds for discipline' are set out at s 91(1) of the PS Act. Relevantly to this matter, a chief executive may discipline a public sector employee if the chief executive is "reasonably satisfied" the employee has "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."

[134]
The Delegate so concluded that (emphasis added):

Having determined that the above discipline grounds exist, I will consider if disciplinary action should be imposed against you.

Section 93 of the PS Act states that the chief executive may take the disciplinary action, or order the disciplinary action to be taken, that the chief executive considers reasonable in the circumstances. Section 92 lists examples of disciplinary action that may be taken.

I am currently giving serious consideration to imposing the disciplinary action of…reduction of classification level to AO5(4) and a consequential change of duties for a period of 12 months…

[135]
Having endorsed the Delegate's determination (that Ms McHugh acted as alleged and that had amounted to a contravention of the Code of Conduct 'without reasonable excuse'), it follows that the Delegate's finding that a disciplinary ground existed was fair and reasonable.

Was Ms McHugh afforded procedural fairness?

[136]
The Discipline Directive provides that an employee must be provided 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 …"^[114] The show cause correspondence dated 20 March 2024 complied with that requirement.

[137]
The Discipline Directive prescribes that the written details of each allegation must include: the allegation; the particulars of the facts considered by the chief executive for the allegation; and the disciplinary ground under s 91 of the PS Act that applies. Further that a copy of all evidence relevant to the facts considered by the chief executive for each allegation must be provided to the employee. I note the list of attachments to the second show cause correspondence dated 20 March 2024 sets out such materials.

[138]
Ms McHugh has been critical of the Respondent's inattention to several procedural matters. She asserted that:

The manner in which the Respondent conducted the investigation into concerns regarding the Appellant's involvement in the decision to terminate Mr Sommer's engagement, and the corresponding disciplinary process implemented to date, has been so protracted and error laden that the Decision is unfair and unreasonable due to defective procedure alone.^[115]

[139]
Ms McHugh submitted that the Delegate did not act in accordance with the Directive, apply correct legal tests, afford [Ms McHugh] procedural fairness and act fairly and reasonably.^[116]

[140]
Ms McHugh asserted that the Delegate failed to identify and explain how the substantiated conduct in Allegations 1 and 2 contravened the Code of Conduct.^[117] The Discipline Directive prescribes that disciplinary findings must result from the chief executive's review of "all relevant material, including any submissions from the employee" and for each such disciplinary finding, 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."^[118] While the Respondent has sensibly conceded the Delegate's error in making adverse of findings of credit against Ms McHugh for the particular stated reasons above, I have not displaced the Delegate's decision to substantiate Allegations 1 and 2, given the entirety of the evidence.
[141]
In addition to the matters above, Ms McHugh submitted two further primary procedural fairness matters:

TMR's failure to identify, address and manage conflict of interest concerns; and
Problems with the two investigations, that meant TMR should not have relied on the resultant reports.

[142]
I will address each of these issues in turn.

Conflict of interest

[143]
The Discipline Directive mandates that (emphasis added):

5.5The requirements set out in these directions are binding and must be followed.

…

9.2The 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.

…

Procedural fairness is a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements – the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).

Appellant's submissions

[144]
Ms McHugh identified that the process was infected by serious "conflict concerns."^[119] Specifically, Ms McHugh asserted that Mr Andrew Matters had a personal friendship with Mr Sommers - through Mr Matters' spouse, Ms Emma McGregor. Mr Matters was involved in advising the Delegate in the disciplinary process against Ms McHugh.
[145]
I note that as early as the often cited file note dated 6 May 2022, the "potential conflict" was before the Respondent. The file note included:

It was discussed the potential conflict of interest that SCR [South Coast Region] believed Andrew Matters had with Peter Sommers. It was agreed that Steve Capri should be contacted.^[120]

[146]
Further, I note the file note dated 6 May 2022 also recorded that Mr Capri had himself expressed a view on Mr Sommer's assignment on the day it occurred. When Ms Opie contacted Mr Capri to advise him of Mr Sommer's termination shortly after, his response was reported to be that "he had no issue with SCR ending the contractor's assignment."^[121]
[147]
Ms McHugh submitted that:^[122]

Mr Matters and Mr Capri "were removed from the first of the investigations due to personal interest conflicts." However, on 19 June 2023, Ms McHugh learned that "Mr Capri and Mr Matters were involved in facilitating the second investigation, [when] she queried this with Mr Capri…[he] informed her that there was no longer any conflict of interest and he and Mr Matters would be inviting [her] to a meeting."^[123]
On 21 June 2023, Mr Matters and Mr Capri informed Ms McHugh that they "were advisors to [the Delegate]…on the matters subject to the Investigation".^[124]
Ms McHugh raised the conflict concerns with Mr Trevor Chippendale (Director of Ethical Standards) on 5 July 2023. Mr Chippendale assured Ms McHugh "that he would call the Delegate and advise that Mr Matters was not to have any involvement in any matter involving Mr Sommer's complaint."^[125]
The personal relationship was referred to "by Mr Sommer in the Verifact Investigation Report (page 37, dated 9 August 2023)".^[126]
Mr Matters sent emails to Ms McHugh regarding the process on 30 October 2023 and 6 September 2023,^[127] and 18 March 2024.^[128] That showed Mr Matters' continued involvement in the disciplinary process after the 5 July 2023 telephone call assurance from Mr Chippendale was provided to Ms McHugh.
Mr Matters' email reply to Ms McHugh on 18 March 2024 wrongly "asserted that the Appellant had provided a response to the Initial Show Cause Letter and that the Respondent had made the decision to progress 'this matter'."^[129] (Mr Matters' email reply was sent in response to Ms McHugh's representative's correspondence identifying concerns with the Initial Show Cause Letter provided and indicating her intention to respond, once those matters were clarified. Ms McHugh had not yet submitted her show cause response when Mr Matters' email was received progressing the process).
On 20 March 2024, Ms McHugh met with Mr Capri and Mr Matters regarding the "proposed progression of the Show Cause Process…[and] was informed by Mr Matters that he and Mr Capri have been supporting the decision maker to unpack the complaint and provide advice to the decision maker."^[130]
The same day, Ms McHugh received a Show Cause Letter. Attached to that were "documents identifying that Mr Matters' partner, Ms Emma McGregor, had been interviewed as part of the Investigations. Further noted…was that Mr Sommer had made comment regarding his close personal friendship with Ms McGregor."^[131]

[148]
Conflict concerns were raised by Ms McHugh during the process but were not acknowledged or addressed.^[132]
[149]
Ms McHugh's representative wrote to Ms Sally Stannard (Director-General)^[133] on 5 April 2024 and expressed "serious concerns regarding Mr Matters' ongoing and potentially influential involvement in the Show Cause Process in light of the Conflict. With this in mind, to ensure that the show cause process is objectively fair and reasonable, …without any prejudice, [Ms McHugh] respectfully requests that any progression of the Show Cause Process is delegated to an independent officer of the Department."^[134]
[150]
Inexplicably, "the Respondent did not respond to the Appellant's concerns raised within her correspondence dated 5 April 2024 nor did they provide any confirmation regarding Mr Matters' ongoing involvement in the matter, or clarification regarding the weight given to Ms McGregor's evidence."^[135]
[151]
The only correspondence received by Ms McHugh proximate to the conflict concerns expressed that may be considered a response of sorts was an email dated 31 May 2024 from Mr Capri, who advised that the Delegate has received advice on the "Show Cause matter" and "has determined that you are to receive a show cause notice on disciplinary action letter". Mr Capri then informed Ms McHugh that "Additionally, please note that I have now assumed case manager / contact responsibilities for all issues regarding this matter."^[136] That single sentence appeared to be the entirety of TMR's response to Ms McHugh's legitimate conflict concerns.
[152]
Ms McHugh concluded that the personal connection between Mr Matters (through his spouse, Ms McGregor) and Mr Sommer meant that "Mr Matters has either a conflict of interest or a perceived conflict of interest in the Investigation".^[137] Ms McHugh submitted that despite the personal relationship, the Respondent "continued to accept Ms McGregor's evidence in the matter and allow Mr Matters involvement in the disciplinary process."^[138]
[153]
Ms McHugh stated that "Both Mr Capri and the Decision-Maker were aware of the Conflict, but failed to disclose the Conflict, as required by the Respondent's Conflict of Interest Policy and Procedure."^[139]

Respondent's submissions

[154]
In response to all those conflict concerns, the rather disappointing extent of the Respondent's submissions was that it "rejects the Appellant's contention that any conflict of interest arose from the concerns raised by the Appellant (paragraph 40 of the Appeal Notice), on the basis that the Respondent is not aware of Mr Matters having a personal relationship with Mr Sommer. In any event, Mr Matters had no involvement in advising the Decision-Maker on the disciplinary process after the Appellant's concerns were raised."^[140] Those submissions do not appear to have had regard to the clear documentary evidence, such as the file note and Mr Matters' emails.

Finding

[155]
I cannot accept the Respondent's submissions.
[156]
The file note dated 6 May 2022 that was given significant weight by the Delegate made clear reference to "the potential conflict of interest that SCR believed Andrew Matters had with Peter Sommers." That evidence was certainly before the Delegate from the very beginning of this process. It does not appear that any inquiries were made at the time about the connection between Mr Matters and Mr Sommer. If inquiries had been made, and it was determined that no such potential conflict existed, I would expect that to be reported in the Respondent's submissions. That was not the case.
[157]
The Respondent submitted that it "is not aware of Mr Matters having a personal relationship with Mr Sommer." The correspondence to Ms Stannard dated 5 April 2024 identified the specific conflict concerns, with respect to Mr Matters. That correspondence was again before the Respondent, as an attachment to the Appeal Notice. The Verifact Report was also before the Delegate. That document included Mr Sommer's evidence to the investigator that "the person in the previous role of [Mr McNamee's] is one of my referees and a close friend now…" That person is Ms McGregor. Even if the Delegate was unaware of who that person was at the time of considering the report, as part of the evidence before her, Mr Capri and Mr Matters certainly would have known in their stated capacity as "advisers" to the Delegate.
[158]
The Respondent also submitted that "Mr Matters had no involvement in advising the Decision-Maker on the disciplinary process after the Appellant's concerns were raised." I do not agree. That is because I have earlier noted the evidence of the file note showed that "the Appellant's concerns were raised" on 6 May 2022. The Respondent has not refuted that Ms McHugh raised the conflict concerns with Mr Chippendale on 5 July 2023 – nor have they denied that Mr Chippendale assured Ms McHugh "that he would call the Delegate and advise that Mr Matters was not to have any involvement in any matter involving Mr Sommer's complaint".^[141] Yet Mr Matters was still involved in the disciplinary process after that date, as is evidenced by several emails. There is also the uncontested submission that Mr Matters declared to Ms McHugh at the 20 March 2024 meeting that "he and Mr Capri have been supporting the decision maker to unpack the complaint and provide advice to the decision maker." Ms McHugh raised conflict concerns in her 6 May 2022 file note, in the telephone conversation with Mr Chippendale and finally in correspondence to Ms Stannard. Documentary evidence of Mr Matters' involvement in the processes ceased only after Ms McHugh's representatives complained to Ms Stannard, though as I have earlier observed, no reply to that correspondence was provided.
[159]
The Discipline Directive mandates that the chief executive "demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process." That did not occur. Mr Matters and Mr Capri had both potentially placed the chief executive and Delegate in a most difficult position.
[160]
I agree that there were significant procedural flaws in the disciplinary process undertaken, most notably with respect to the failure to identify, declare and manage conflict of interest. I accept Ms McHugh's conclusions that:

the personal connection between Mr Matters (through his spouse, Ms McGregor) and Mr Sommer meant that "Mr Matters has either a conflict of interest or a perceived conflict of interest in the Investigation."^[142]
In those circumstances, Mr Matters should not have been involved in the disciplinary process.^[143]
Mr Matters, Mr Capri and / or the Delegate were aware of the conflict but failed to disclose it or manage it.
Little regard appeared to be given to Mr Chippendale's reported advice to the Delegate, that Mr Matters' involvement in the matter should cease.

[161]
I agree with Ms McHugh that the entire disciplinary process conducted by the Respondent was unnecessary lengthy and beleaguered with successive problems. Those included: the false start with the first letter that was then required to be withdrawn subsequent to correspondence from Ms McHugh's representative; the two investigations that followed and failure to interview Ms Rough; the recognition of conflict concerns with respect to Mr Matters and Mr Capri with respect to the first investigation but not with the second; Mr Matters' premature escalation of the process in response to Ms McHugh's representative's request for clarification and before she provided a response; failure to identify and manage perceived conflicts – astonishingly even after contact by Mr Chippendale; the inexplicable failure to respond to Ms McHugh's representative's correspondence itemising such conflict concerns; the Delegate's adverse findings of credit against Ms McHugh caused by non-attendance at the initial meeting with Mr Sommer on 5 May 2022, now conceded by the Respondent.
[162]
However, what prevents the legitimate conflict concerns from disturbing the Delegate's decision entirely is that Mr Matters was not the "decision maker" in the process. It appeared he was not even the key "adviser" to the Delegate, seemingly out-ranked by "case manager" Mr Capri. While I do accept Mr Matters told Ms McHugh that he and Mr Capri were advising the Delegate, the decision was ultimately hers. The Discipline Directive requires procedural fairness to be provided, including Ms McHugh's right "to a decision by a disinterested and unbiased adjudicator" – in this case though that person was Ms Knox, not Mr Matters.
[163]
The disciplinary process was poorly managed and beset with rather obvious problems. I have carefully considered whether those were 'enough' to displace the Delegate's decision in this case. I have ultimately concluded that would not be justified here because Mr Matters' status was not the "decision-maker," but rather the secondary contact person / adviser on the matter.

Problems with the two investigations and reports

[164]
Ms McHugh asserted there were problems with both investigations, such that the resultant reports should not have been relied upon by the Delegate.
[165]
Ms McHugh submitted that the Verifact Report should not have been relied upon by the Delegate because its scope is the same as the "retracted allegations initially posed to the Appellant within the initial show cause letter dated 9 November 2023".^[144] She argued that by retracting the initial show cause letter, the Respondent conceded the investigation and/or findings are inappropriate. Ms McHugh stated that, in those circumstances, continuing to rely on the Report is a significant procedural defect in the disciplinary process.^[145]
[166]
Ms McHugh submitted that the Mapien Report failed to interview two key witnesses, Ms Opie and Ms Rough. Ms McHugh said that report did not contain detailed questioning of her as to "the reasons Mr McNamee provided for making the decision to terminate Mr Sommer's engagement, and why [she] agreed with such decision."^[146]
[167]
The Respondent submitted that Ms McHugh gave varied reasons for the decision to end Mr Sommer's assignment early. That is because Ms McHugh told the investigator that she had stated to Mr Sommer that "the reason for the decision was that his relationship with other members of the Project has irretrievably broken down and his continued engagement was untenable. In her response during the disciplinary process, and in the PSA, Ms McHugh states that she told Mr Sommer the reason for the decision was his aggressive and confrontational behaviour in the 5 May Meeting."^[147]
[168]
The Appellant argued that was not supported by the evidence, including:

Ms McHugh's File Note dated 6 May 2022 read that "MJ McHugh explained that we (TMR) were concerned about the discussion that took place yesterday…it felt that the relationship; with the project team had broken down…"^[148]
The Mapien Investigation transcript revealed Ms McHugh was not questioned in detail about the meeting with Mr Sommer where she communicated the decision to terminate his engagement. Further, the Verifact Report recorded Ms McHugh's remarks that she "didn't provided the full account to the investigator" as "I was a bit rushed…"^[149]
Ms McHugh reported to the Verifact Investigation that she had told Mr Sommer the reason for termination was "related to his behaviours in the meeting the day before, and a discussion around the interaction with Liam Mc Naught, that Peter had responded he wasn't going to be changing his ways. That, that was the reason he was let go. That was all that I managed to get out, because Peter Sommer tried to tell me why I was letting him go."^[150]

[169]
While I accept there were issues with the investigations (such as neglecting to interview key witnesses, Ms Opie and Ms Rough), that does not mean the transcripts and reports have no relevance or utility at all.
[170]
Although Ms McHugh submitted the Verifact Report should not have been relied upon by the Delegate because its scope is the same as the "retracted allegations initially posed to the Appellant within the initial show cause letter dated 9 November 2023,"^[151] there were nonetheless relevant questions asked and responses provided by people including Ms McHugh and Mr Sommer. Transcripts and reports were produced that aided the Delegate's consideration, together with all the other evidence available to her.
[171]
Further, even though Ms McHugh stated that she did not give the "full account to the investigator" as "I was a bit rushed…,"^[152] there were other opportunities to be heard, including her show cause response.
[172]
With respect to this particular process complaint, I find it was not unreasonable for the Delegate to have carefully considered Ms McHugh's more unvarnished statements to the investigators, alongside her formal show cause response. It was appropriate for the Delegate to weigh all the available evidence when determining whether or not to substantiate the allegations against Ms McHugh. It was open to the Delegate to consider the investigation reports.

[173]
For the foregoing reasons, I find the process undertaken complied with the PS Act and Discipline Directive.

Was the disciplinary finding decision fair and reasonable?

[174]
In this appeal, Ms McHugh challenged the disciplinary finding decision made by the Delegate. That is, the Delegate's finding that the conduct occurred as alleged and that a disciplinary ground exists.

[175]
As I have endorsed the Delegate's finding to substantiate Allegations 1 and 2, it then follows that grounds for discipline do exist pursuant to s 91(1) of the PS Act. I have outlined my reasons for this conclusion above.

[176]
With respect to whether the Delegate's decision should be set aside because of procedural fairness issues, I have stopped short of doing so here even though I agree with Ms McHugh that the involvement of Mr Matters was not appropriate. That conflict was not "declared, monitored and appropriately managed" as required. While Mr Matters was not the Delegate, he nonetheless told Ms McHugh that he and Mr Capri were acting in an adviser capacity to the Delegate. Ms McHugh was right to escalate her concerns with the Delegate (through Mr Chippendale) and then to Ms Stannard. It is regrettable those concerns were not adequately responded to.

[177]
I order accordingly.

Orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision:

1. The Delegate's decision to substantiate Allegations 1 and 2 was fair and reasonable.

2. Grounds for discipline do exist, pursuant to s 91(1)(h) of the Public Sector Act 2022 (Qld), with respect to Allegations 1 and 2 only.

3. The Delegate's decision to substantiate Allegation 4 was not fair and reasonable.

Footnotes

[1] Appeal Notice filed 2 August 2024, Schedule A, [1]-[2].

[2] Ibid.

[3] Ibid.

[4] Appeal Notice filed 2 August 2024, Annexure 1, 33.

[5] Ibid Schedule A, [38].

[6] Ibid Annexure 1, 34.

[7] Ibid Annexure 1, 34-35.

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

[9] 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).

[10] Public Sector Act 2022 (Qld) s 3.

[11] (1938) 60 CLR 336.

[12] Directive 05/23: Discipline, 'Definitions'.

[13] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.

[14] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[15] [2024] ICQ 3.

[16] Ibid.

[17] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal.

[18] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [25].

[19] Ibid [27].

[20] Ibid.

[21] Appellant's reply submissions filed 13 September 2024, [12].

[22] Appeal Notice filed 2 August 2024, 66.

[23] Ibid Schedule A – Reasons for Appeal, [25].

[24] Respondent's submissions filed 9 September 2024, [21].

[25] Appellant's reply submissions filed 13 September 2024, [24].

[26] Ibid [22].

[27] Appellant's submissions filed 13 August 2024, [38].

[28] Appellant's submissions filed 13 August 2024, [40].

[29] Appellant's reply submissions filed 13 September 2024, [9].

[30] Ibid [19].

[31] Appeal Notice filed 2 August 2024, Annexure 7.

[32] Ibid Schedule A, [42].

[33] Appellant's submissions filed 13 August 2024, [41].

[34] Appeal Notice filed 2 August 2024, Schedule A, [43]-[45].

[35] Public Sector Act 2022 (Qld) s 91(1)(h) and (5); As the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made.

[36] Appeal Notice filed 2 August 2024, Schedule A, [8].

[37] Appeal Notice filed 2 August 2024, Schedule A, [8]; Annexure 9.

[38] Ibid [9].

[39] Respondent's submissions filed 9 September 2024, [6].

[40] Respondent's submissions filed 9 September 2024, Investigation, 66.

[41] Ibid 67.

[42] Ibid 21.

[43] Ibid 94.

[44] Respondent's submissions filed 9 September 2024, Investigation, 51-52.

[45] Appeal Notice filed 2 August 2024, Schedule A, [9].

[46] Appellant's submissions filed 13 August 2024, [10].

[47] Appeal Notice filed 2 August 2024, Schedule A, [12].

[48] Respondent's submissions filed 9 September 2024, Investigation, 68.

[49] Ibid 55.

[50] Ibid 56-57.

[51] Respondent's submissions filed 9 September 2024, Investigation, 56.

[52] Ibid.

[53] Ibid.

[54] Appeal Notice, 96.

[55] Appeal Notice, 97.

[56] Ibid 67.

[57] Ibid 51-52.

[58] Ibid 70.

[59] Appeal Notice filed 2 August 2024, Schedule A, [13].

[60] Ibid [14].

[61] Appeal Notice filed 2 August 2024, 96.

[62] Ibid Schedule A, [15].

[63] Ibid 97.

[64] Appeal Notice filed 2 August 2024, Schedule A, [16]-[17].

[65] Ibid [18].

[66] Ibid 99.

[67] Appeal Notice, 103.

[68] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [25].

[69] Appellant's reply submissions filed 13 September 2024, [21].

[70] Ibid [23], Annexure A – Summary of Evidence in Relation to Reasons for Mr Sommer's Termination.

[71] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [27].

[72] Appellant's reply submissions filed 13 September 2024, [8].

[73] Ibid [8].

[74] Appellant's reply submissions filed 13 September 2024, [20].

[75] Respondent's submissions filed 9 September 2024, [6b].

[76] Appellant's reply submissions filed 13 September 2024, [8].

[77] Ibid [8].

[78] Project Manager for the Daisy Hill to Logan Motorway Project.

[79] Appellant's reply submissions filed 13 September 2024, [8].

[80] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [8].

[81] Ibid [11].

[82] Appellant's reply submissions filed 13 September 2024, [8].

[83] Ibid [8].

[84] Ibid, Annexure A.

[85] Respondent's submissions filed 9 September 2024, [10].

[86] Ibid [17].

[87] Appellant's reply submissions filed 13 September 2024, [8], Annexure A.

[88] Respondent's submissions filed 9 September 2024, [17].

[89] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [27].

[90] Ibid [26].

[91] Ibid Annexure 1, 20.

[92] Respondent's submissions filed 9 September 2024, [15].

[93] Ibid [17].

[94] Appellant's reply submissions filed 13 September 2024, [7].

[95] Appellant's reply submissions filed 13 September 2024, [12].

[96] Ibid [13].

[97] Respondent's submissions filed 9 September 2024, [24].

[98] Appellant's reply submissions filed 13 September 2024, [14].

[99] Industrial Relations Act 2016 (Qld) s 285(1).

[100] Ibid.

[101] Ibid s 284.

[102] Ibid s 571.

[103] Appeal Notice filed 2 August 2024, 22.

[104] Appeal Notice filed 2 August 2024, 33.

[105] Ibid 66.

[106] Ibid Schedule A, [42].

[107] Respondent's submissions filed 9 September 2024, [24].

[108] Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159 [33].

[109] Appellant's submissions filed 13 August 2024, [41].

[110] Appeal Notice filed 2 August 2024, Schedule A, [43]-[45].

[111] Respondent's submissions filed 9 September 2024, [24].

[112] Respondent's submissions filed 9 September 2024, [18].

[113] Appeal Notice filed 2 August 2024, Schedule A – Reasons for Appeal, [25].

[114] Discipline Directive cl 9.3(e).

[115] Appellant's reply submissions filed 13 September 2024, [24]

[116] Appellant's reply submissions filed 13 September 2024, [22].

[117] Appellant's submissions filed 13 August 2024, [38].

[118] Discipline Directive cl 9.4.

[119] Appellant's submissions filed 13 August 2024, [40].

[120] Appeal Notice filed 2 August 2024, 103.

[121] Ibid 103.

[122] Appellant's reply submissions filed 13 September 2024, [18].

[123] Appeal Notice filed 2 August 2024, Annexure 7.

[124] Ibid.

[125] Appellant's reply submissions filed 13 September 2024, [18]; Appeal Notice filed 2 August 2024, Annexure 7.

[126] Appellant's reply submissions filed 13 September 2024, [18].

[127] Appeal Notice filed 2 August 2024, 45-47.

[128] Ibid Annexure 4.

[129] Appellant's submissions filed 13 August 2024, [18].

[130] Appeal Notice filed 2 August 2024, Annexure 7.

[131] Ibid.

[132] Appellant's submissions filed 13 August 2024, [40]-[41]; Appeal Notice filed 2 August 2024, 62-63.

[133] Department of Transport and Main Roads.

[134] Appeal Notice filed 2 August 2024, 63.

[135] Appellant's reply submissions filed 13 September 2024, [18].

[136] Respondent's submissions filed 9 September 2024, Attachment 9.

[137] Appeal Notice filed 2 August 2024, 63.

[138] Appellant's reply submissions filed 13 September 2024, [18].

[139] Ibid.

[140] Respondent's submissions filed 9 September 2024, [24].

[141] Appellant's reply submissions filed 13 September 2024, [18]; Appeal Notice filed 2 August 2024, Annexure 7.

[142] Appeal Notice filed 2 August 2024, 63.

[143] Appellant's reply submissions filed 13 September 2024, [18].

[144] Appellant's reply submissions filed 13 September 2024, [9].

[145] Ibid [10].

[146] Ibid [19].

[147] Respondent's submissions filed 9 September 2024, [10].

[148] Appellant's reply submissions filed 13 September 2024, [20].

[149] Ibid [20].

[150] Appellant's reply submissions filed 13 September 2024, [20].

[151] Ibid [9].

[152] Ibid [20].

Editorial Notes

Published Case Name:
McHugh v State of Queensland (Department of Transport and Main Roads)
Shortened Case Name:
McHugh v State of Queensland (Department of Transport and Main Roads)
MNC:
[2025] QIRC 222
Court:
QIRC
Judge(s):
McLennan IC
Date:
21 Aug 2025

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Cases Cited List of Cases Cited by this judgment

Case Name	Full Citation	Frequency
Briginshaw v Briginshaw	View on:JADE(1938) 60 C.L.R 336	3 citations Jump To Cite 1 - (1938) 60 C.L.R 336 Cite 2 - (1938) 60 C.L.R 336 Cite 3 - (1938) 60 C.L.R 336
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd	(1992) 67 ALJR 170	2 citations Jump To Cite 1 - (1992) 67 ALJR 170 Cite 2 - (1992) 67 ALJR 170
Newman v State of Queensland (Queensland Police Service)	[2021] QIRC 159	2 citations Jump To Cite 1 - [2021] QIRC 159 Cite 2 - [2021] QIRC 159
State of Queensland (Queensland Health) v Hume (No. 3)	[2024] ICQ 3	2 citations Jump To Cite 1 - [2024] ICQ 3 Cite 2 - [2024] ICQ 3

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McHugh v State of Queensland (Department of Transport and Main Roads)[2025] QIRC 222