Eason v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Eason v State of Queensland (Queensland Health) [2023] QIRC 241
PARTIES:	Eason, Philip (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2023/57
PROCEEDING:	Public Sector Appeal – Appeal against a fair treatment decision
DELIVERED ON:	15 August 2023
HEARING DATE:	15 August 2023
MEMBER: HEARD AT:	Dwyer IC Brisbane
ORDER:	*1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016* (Qld), the decision appealed against is confirmed.**
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where a decision was made to substantiate an allegation against appellant – where appellant contends that the decision to substantiate the allegation is unfair and unreasonable – whether the decision to substantiate allegation was fair and reasonable – decision appealed against confirmed
LEGISLATION: CASES:	Industrial Relations Act 2016 (Qld) ss 562B, 562C Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
APPEARANCES:	Mr A. Santelises, The Australian Workers’ Union of Employees, Queensland for the Appellant Ms T. O'Connor for the State of Queensland (Queensland Health)

Reasons for Decision (delivered ex tempore)

Background

Mr Philip Eason is employed by the State of Queensland (Queensland Health) ('the Respondent') as a supply supervisor. On 30 November 2022, Mr Eason was formally advised of an allegation made against him, namely:

It is alleged that between 27 October 2021 and 2 November 2021 you failed to demonstrate appropriate workplace conduct when engaging with [a subordinate co-worker].

The allegation emerged from a complaint by the subordinate co-worker regarding an incident said to have occurred on 1 November 2021. Following a formal investigation of the incident, the investigator found the allegation to be substantiated. In particular, the investigation finding was as follows:
On 1 November 2021 Mr Phillip Eason verbally and/or physically abused a subordinate co-worker.
The particulars of the allegation were in essence that on 1 November 2021, Mr Eason had deliberately approached the co-worker, grabbed him and pushed him.[1]
[1] There were two additional allegations that Mr Eason had verbally abused the subordinate co-worker but neither of these were substantiated.
While the investigation process included interviews with a number of witnesses, including at least one eyewitness, the incident in question was also captured on CCTV.
Following a show cause process in which Mr Eason was invited to show cause why a disciplinary finding should not be made against him, a decision was made on 20 March 2023 substantiating the allegation and finding that Mr Eason was liable to discipline. The decision letter also advised Mr Eason that the decision-maker was contemplating termination of his employment.
Mr Eason now appeals the decision substantiating the allegation. To be clear, the decision under review does not include a review of the sanction of termination of employment being considered by the decision maker.
Principles of appeal
Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') confers jurisdiction on the Queensland Industrial Relations Commission ('the Commission') to review a decision. The review is not a fresh hearing of the matter on the merits in the form of a hearing de novo.[2] The purpose of the review is to determine whether a decision is fair and reasonable.[3]
[2] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[3] Industrial Relations Act 2016 (Qld) s 562B(3).
Further, the powers of the Commission with respect to the conduct of such a review are limited. The orders that the Commission can make in respect of such appeals are that it can:
·        confirm the decision appealed against;
·        set the decision aside and substitute it with another decision; or
·        set the decision aside and return the matter to the decision-maker with appropriate directions.[4]
[4] Industrial Relations Act 2016 (Qld) s 562C(1).
Consideration
The parties filed written submissions in accordance with directions. It is not necessary in these reasons to restate the submissions in detail. Suffice to say that Mr Eason contends that his contact with the subordinate co-worker largely came about due to him stumbling on his arthritic ankle. This explanation is rejected by the Respondent.
In this matter, the decision letter sets out the portions of the Code of Conduct for the Queensland Public Service ('the Code') said to have been contravened by Mr Eason. Relevantly, the decision letter refers to clause 1.5(a) of the Code which provides:
We will treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.
At no stage in this matter has Mr Eason ever denied his intention to instigate unsolicited physical contact with a subordinate co-worker.
From the date of the incident Mr Eason provided a number of responses in respect of the allegation. He was initially interviewed by an investigator from the Respondent's Ethical Standards Unit. The investigation report is a broadly thorough document that captures key evidence from relevant witnesses. However, on close reading of the interview with Mr Eason, the investigator fails to elicit a proper explanation as to how he came to have physical contact with the subordinate co-worker.[5] At its highest, the evidence of Mr Eason gathered in the interview process is that he was giving the subordinate co-worker a 'gee up'.
[5] See Attachment 2 to the Respondent’s submissions filed 3 May 2023, in particular, the investigation report interview with Phillip Eason, at pages 7, 15, and 16.
But having regard to the record of interview conducted between the investigator and Mr Eason in its totality, it is plain that Mr Eason acknowledges that there was physical contact. He does not suggest that it was anything other than intentional and, at one point in the interview, acknowledges that he is 'tactile'. Having regard to Mr Eason's responses to the interview, there is a clear acknowledgment that his physical contact with the subordinate co-worker was intentional.
Further, and consistent with this conclusion, in the show cause response that Mr Eason subsequently provided through his union representative in January 2023, there was an express acknowledgment that Mr Eason had intended to give the subordinate worker 'a hug and a pat'. But also (some 12 or more months after the event) it was said for the first time in that show cause response that Mr Eason 'stumbled and fell' onto the subordinate co-worker due to Mr Eason having a swollen arthritic ankle.
On any version of the accounts given by Mr Eason, he has conceded conduct that would plainly amount to a breach of the Code. That is to say, he has acknowledged that he intended to initiate unsolicited physical contact with the subordinate co-worker. Regardless of whether it was a 'hug and a pat' that went awry due to a stumble, or a 'gee up', it is still unsolicited physical contact.
On Mr Eason's own admissions, a contravention of the Code is made out. Before proceeding to determine what this means for the appeal, the entire body of evidence supporting the finding of contravention ought to be considered.
The Commission has had the advantage of viewing the relevant CCTV footage in this matter and has done so in the presence of both parties to this appeal. Having viewed the footage, it is clear that it gives an unambiguous view of the incident. Having viewed the footage, a number of incontrovertible conclusions can be reached.
Firstly, it is clear that Mr Eason did not stumble. His movement in the footage towards the subordinate co-worker is swift and fluid and plainly deliberate. Further, the clasping of the back or side of the subordinate co-worker's neck in the upper trapezoid region is a classic 'scruff-of-the-neck' grip consistent with it being intentional.
Further, Mr Eason is observed to use controlled force to unbalance the subordinate co-worker. It is clearly controlled as the footage demonstrates Mr Eason first destabilising and then immediately stabilising the falling subordinate co-worker quite quickly.
Having regard to the footage, there can be no doubt that the contact initiated and ultimately executed by Mr Eason against the subordinate co-worker was intentional. In those circumstances, it was clearly open to the decision-maker to conclude that Mr Eason's conduct breaches the Code.
Indeed, even without the CCTV footage, Mr Eason's own admissions of intending to give the co-worker 'a pat and a hug' would ultimately be enough to conclude a breach of the Code. His asserted innocent intention in initiating such contact is a mitigating circumstance only.
It follows in those circumstances that I consider the decision to substantiate the allegation to be fair and reasonable, and that the decision under review should be confirmed.
Other matters
There is a need to make some comment about the proposed penalty. Firstly, it must be reiterated that the Commission in this matter has no jurisdiction to interfere with a proposed penalty. A proposed penalty is not a decision and does not form part of the decision under review. That said, it would be remiss of the Commission not to offer an observation in circumstances where it held some concerns.
The CCTV footage is entirely consistent with statements made by Mr Eason early in the investigation process; namely, that he intended to give the co-worker a 'gee-up'. Without descending into a debate about the meaning of this phrase, it is commonly appreciated that this term is a colloquial phrase that can have a broad range of meanings, but in this instance, it appears to have meant a joking display of mock anger at the subordinate co-worker, who had recently taken a day of sick leave.[6]
[6][6] This is supported not only by Mr Eason's responses during his interview, but also by words attributed to him by another witness (See the Investigation Report from the last paragraph of page 19).
It is obvious from Mr Eason's body language in the CCTV footage that it was not a genuinely aggressive contact. In particular, Mr Eason was observed in the CCTV footage smiling throughout it. Further, the conduct ceased very quickly, and both he and the subordinate co-worker immediately resumed normal posture in the corridor and then moved freely and without any apparent tension into another workspace.
It is unfortunate that Mr Eason has, perhaps as an afterthought, relied on his stumbling excuse. That is plainly not made out in the images, and it is a version of events that only emerged in the show cause process some 12 months after he was interviewed. To be fair to Mr Eason, this late (but unsustainable) addition to his account of events might be more a feature of desperation than dishonesty.
Putting that to one side, I entirely accept that Mr Eason's conduct on 1 November 2021 was, as he describes it, an attempt to 'gee up' a subordinate co-worker; that is, it was a very misguided attempt at humour on the part of Mr Eason and it badly backfired. But I do not consider it was in any way malicious or genuinely aggressive.
The problem for Mr Eason is that his subordinate co-worker was not to know that, and Mr Eason should not have assumed that he would.
Further, it is important to note that even a poorly executed joke can have the potential to contravene the Code. In this case, the subordinate co-worker has allegedly suffered a psychological injury. Having regard to the CCTV and the degree of force used by Mr Eason, it is fortunate that there was not also a physical injury sustained. The risks created by Mr Eason's horseplay are not trivial matters and cannot go unpunished.
It is entirely a matter for the decision-maker as to what sanction is ultimately imposed on Mr Eason, but it is my view that Mr Eason's 13 to 14 years of unblemished employment history and the obvious lack of malice accompanying his actions ought to be considered as compelling mitigators against termination. But that is not a decision for the Commission to consider in this appeal, and I am mindful that there may be facts which are not before the Commission on this occasion that may be equally compelling in adding a more serious hue to these events.
Order
For all of those reasons and in all of those circumstances I make the following order:
1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

[2023] QIRC 241

15 August 2023