Margetts v State of Queensland (Queensland Health) (No 2)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Margetts v State of Queensland (Queensland Health) (No 2) [2025] QIRC 305
PARTIES:	Margetts, Craig (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2025/20
PROCEEDING:	Public Sector Appeal – Fair Treatment
DELIVERED ON: HEARING DATE:	10 November 2025 16 April 2025
MEMBER: HEARD AT:	O'Neill IC Brisbane
ORDERS:	The orders contained in paragraph [321] of these Reasons for Decision.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – where the appellant employed by Queensland Health as a senior health administrator – where allegations of misconduct made against the appellant arising from private conduct – alleged conduct involved private conversations by text or messenger – where disciplinary findings have been substantiated – fair treatment appeal against a disciplinary finding – where disciplinary action yet to be taken – where the appellant appeals against the substantiation of the allegations –– whether the decision to substantiate the allegations was fair and reasonable – the decision was not fair and reasonable.
LEGISLATION: CASES: APPEARANCES:	Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 40, s 91, s 92 Code of Conduct for Queensland Public Service 2011 cl 1.5d Discipline Directive 05/23 cl 7 and cl 9 Positive Performance Management: Directive 15/20 cl 1.2, cl 4, cl 5, cl 6 and cl 9 Positive Performance Management: Directive 02/24 cl 1.1, cl 5 and cl 6 AB v State of Queensland (Department of Education) [2024] QIRC 49 Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 Australia Meat Holdings Pty Limited v Q-COMP [2007] ICQ 44 (2006); 186 QGIG 527 Barker v Barker (1976) 13 ALR 123 Benn v State of Queensland (Department of Education) [2025] QIRC 236 Berenyi v Maynard & Anor [2015] QSC 370 Bobrenitsky v Sydney Trains [2023] FCAFC 96 Briginshaw v Briginshaw (1938) 60 CLR 336 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Comcare v Banerji (2019) 267 CLR 373 Donaldson v TAFE Queensland [2025] QIRC 146 Etherton v Public Service Board of NSW (1983) 3 NSWLR 297 Fisher v Gaisford (1997) 48 ALD 200 Gaisford v Fisher & Ors (1997) 45 ALD 87 Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255 Gill v Department of Industry, Technology & Resources [1987] VR 681 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 Hutchinson v State of Queensland (Queensland Health) [2021] QIRC 317 Johnson v Department of Justice and Attorney-General [2005] QIRC 163 (2005); 180 QGIG 934 Keenan v Leighton Boral Amey Joint Venture (2015) 250 IR 27; [2015] FWC 3156 Laws v London Chronicle (Indicator Newspapers) Ltd [1959] 2 All ER 285 Leigh v State of Queensland (Department of Education) [2025] QIRC 23 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 Margetts v State of Queensland (Queensland Health) [2025] QIRC 242 McManus v Scott-Charlton (1996) 140 ALR 625 Medical Board of Australia v TXA (No 2) [2023] QCAT 115 Melbourne City Link Authority v Teford Pty Ltd (2001) 113 LGERA 102 Minister for Immigration and Border Protection v WZARH (2015) 256 CLR 326 MyEnvironment Inc v VicForests (2013) 42 VR 456 Newton v Toll Transport Pty Ltd [2021] FWCFB 3457 Nield v State of Queensland (Queensland Health) [2023] QIRC 294 North v Television Corporation Ltd (1976) 11 ALR 599 O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Pope v Lawler [1996] FCA 1446 Public Employment Office Department of Attorney General and Justice (Corrective Services NSW) v Silling [2012] NSWIRComm 118 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Rose v Telstra Corporation Limited [1998] IRCommA 1592 Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 Starr v Dept of Human Services [2016] FWC 1460 State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3 State of Queensland (Queensland Health) v Nield [2025] ICQ 021 Sydney Trains v Bobrenitsky [2022] FWCFB 32 Vanmeld Pty Ltd v Fairfield City Council [2000] NSWCA 51; (2000) 106 LGERA 454 Wirth v Mackay HHS & Anor [2016] QSC 39 Dr C. Margetts Mr D. Marskell of Metro North Hospital and Health Service for the Respondent

Reasons for Decision

This appeal raises the issue of the extent to which an employer can address alleged conduct by an employee in their private life as a workplace disciplinary matter. In particular, the appeal raises the issue as to the extent to which private online conversations between an employee and someone unrelated to the workplace, which occur outside of work hours, can be the subject of disciplinary action by an employer.
Dr Craig Margetts ('the Appellant') is employed by Metro North Hospital and Health Service ('MNHHS') as a Director of Medical Services Reliever.
The Appellant has been continuously employed by Queensland Health since 16 July 2001. The Appellant first commenced working for MNHHS in 2014 and has been in the role of Director of Medical Services Reliever since April 2022.
On 19 June 2023, a complaint was made to MNHHS regarding the Appellant's engagement with two members of the "public".

The Appellant was requested to attend a meeting with the Chief Medical Officer, Dr Elizabeth Rushbrook and Mr Brett Bourke[1] to discuss the complaint on 27 June 2023.
[1] At the relevant time Mr Bourke appears to have held the role of General Manager, Workplace Relations for MNHHS.
In a letter dated 23 May 2024, the Appellant was afforded an opportunity to show cause as to why two allegations should not be substantiated ('SC-1').[2] The allegations were:
1. On various occasions in or about January 2023, you sent inappropriate text messages to a member of the public, specifically Ms ABW[3].
2. On various occasions in or about June 2023, you engaged with members of the public, including Ms ABW and Mr KM, in an inappropriate manner.
[2] Appellant's submissions filed 12 March 2025: Enclosure 1 – Show Cause Notice dated 23 May 2024.
[3] See Margetts v State of Queensland (Queensland Health) [2025] QIRC 242: The names of the members of the "public" have been anonymised as a result of a suppression application which was addressed and granted in this decision.
No explanation has been provided for the delay of approximately eleven months in issuing SC-1 to the Appellant following the meeting on 27 June 2023.
The Appellant provided a response to the allegations outlined in SC-1 on 5 September 2024 via correspondence from his solicitors ('Show Cause Response').[4]
[4] Appellant's submissions filed 12 March 24: Enclosure 2 – Show Cause Response dated 5 September 2024.
In a disciplinary finding decision dated 20 January 2025, Dr Rushbrook advised the Appellant that the two allegations were substantiated ('the decision').[5] It is this decision that is the subject of the appeal.
[5] Respondent's submissions filed 20 March 2025: Attachment 1 – Disciplinary finding decision dated 20 January 2025.
No decision has been made with respect to the imposition of the proposed disciplinary action. These reasons will only address the disciplinary findings and will not touch upon the proposed disciplinary penalty of termination of Dr Margetts' employment.
The Appellant filed his appeal against the decision of Dr Rushbrook on 5 February 2025.
The issue to be determined in this appeal is whether the decision dated 20 January 2025, which found the two allegations to be substantiated, was fair and reasonable.
For the reasons that follow I am not satisfied that the decision to find Allegations 1 and 2 to be substantiated was fair and reasonable. I have set aside the disciplinary finding and substituted a decision that Allegation 1 and Allegation 2 are not substantiated.
Appeal Principles
Section 562B(3) of the Industrial relations Act 2016 (Qld) ('the IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[6]
[6] Industrial Relations Act 2016 (Qld) s 562B(3).

A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the decision-maker.[7]

[7] 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).
The issue for my determination is whether the decision appealed against was fair and reasonable.[8]
[8] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).
What decisions can the Commission make?
Section 562C(1) of the IR Act prescribes that the Commission may determine to either:
·confirm the decision appealed against;
·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; or
·set the decision aside and substitute another decision.
Relevant Legislation

Section 90 of the Public Sector Act 2022 (Qld) ('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.
Section 91 of the PS Act sets out the grounds for discipline as follows:
91 Grounds for discipline
(1)A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

(b)been guilty of misconduct; or
…
(h)contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
(Emphasis added)
(2)A disciplinary ground arises when the act or omission constituting the ground is done or made.
…
(5)In this section—
misconduct means—
(a)inappropriate or improper conduct in an official capacity; or
(b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
Example of misconduct—
victimising another public sector employee in the course of the other employee's employment in the public sector

Section 1.5 of the Code of Conduct for the Queensland Public Service 2011 ('the Code of Conduct') relevantly states:
1.5 Demonstrate a high standard of workplace behaviour and personal conduct
We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

(a) 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
(b) ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
(c)ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
(d) ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
(e)comply with legislative and/or policy obligations to report employee criminal charges and convictions.
(Emphasis added)

Relevant provisions of the Directives

Directive 05/23: Discipline ('Discipline Directive') relevantly provides:
4.       Principles
…
4.2     Chief 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.
4.3     Under 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.
…
4.7     A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:
a.       the end of unacceptable conduct
b.       early resolution
c.       preserving working relationships
d.       avoiding an unnecessary and disproportionately protracted dispute
4.8     Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.
4.9     A chief executive must not take disciplinary action against an employee for a matter relating
to the employee’s performance until they have complied with the positive performance
management directive in relation to the matter.
4.10    Discipline 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
7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
7.2     Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
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.
7.3     Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee’s performance until the chief executive has complied with the directive about positive performance management.
8.       Discipline for conduct in a private capacity

8.1     In addition to considering the requirements listed at clause 7, a chief executive must consider whether they are reasonably satisfied alleged conduct could amount to misconduct which reflects seriously and adversely on the public sector entity in which the employee is employed in determining whether to commence a discipline process in relation to an employee’s conduct in a private capacity.
8.2     In making a determination under clause 8.1, a chief executive must give consideration to the way in which the person’s alleged conduct in a private capacity, if it became known to a reasonable person, reflects seriously and adversely on the entity taking into account all the circumstances including:
(a) the person’s role in the entity, and
(b) the entity’s functions and responsibilities, and
(c) the responsibility on government entities to act with integrity, accountability, in the public interest and in a way that maintains public trust.
8.3     A chief executive must also ensure that proper consideration is given to human rights under the HR Act.
9. Discipline process
…
9.3 Show 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.
…

The Discipline Directive includes a definition section at the end of the Directive where the following relevant terms are defined:
…
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.
…
Management action is independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance. Following a disciplinary finding (refer to section 90), management action can accompany or substitute for disciplinary action. If appropriate, management action can replace an ongoing disciplinary process at any stage. While not limited, management action is predominantly focused on corrective action. (emphasis added)
…
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). (emphasis added)

Is the Appellant entitled to appeal?

A disciplinary finding decision that allegations have been substantiated is not a disciplinary decision as defined in s 129 of the PS Act. In the present case disciplinary action has not yet been taken against the Appellant.
Pursuant to s 132(4)(b) of the PS Act a fair treatment appeal is available regarding a finding made pursuant to s 91 of the PS Act that a disciplinary ground exists for the person.[9]
[9] Section 32(4)(b) of the Public Sector Act 2022 (Qld); see also O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283, [31].
Section 131 of the PS Act lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that a fair treatment decision may be appealed. Fair treatment decisions are defined within s 129 of the PS Act, which relevantly states:
fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.
I am satisfied that the Disciplinary Finding Decision is one that can be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal.
Section 564(3) of the IR Act requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
The Appellant received the decision letter on 20 January 2025 and the Appeal Notice was filed in the Industrial Registry on 5 February 2025. I am satisfied that the appeal has been brought within the required time.

The Disciplinary Finding Decision

In the decision dated 20 January 2025 the delegated decision-maker, Dr Rushbrook, found that both allegations were likely to have occurred and were therefore substantiated. Dr Rushbrook further found that there were grounds to discipline the Appellant under ss 91 and 92 of the PS Act.
The decision-maker's reasons were set out in an attachment[10] to the decision letter.
Allegation 1: On various occasions in or about January 2023, you sent inappropriate text messages to a member of the public, specifically ABW
[10] Attachment 1: Statement of Reasons, (n4).
The decision-maker noted that the Appellant did not deny sending ABW the messages referenced in SC-1. The decision-maker went on to note that the Appellant had allegedly admitted in the meeting with her on 27 June 2023 that he directly informed ABW of his role and employment with the Health Service to build trust with her. The decision-maker noted that the Appellant refuted making this statement, but she had conferred with Mr Brett Bourke, A/Chief People and Culture Officer who had the same recollection.
This lead the decision-maker to find that the Appellant had "inappropriately and improperly attempted to leverage [his] position and senior leadership status with the Health Service to inappropriately engage with a member of the public". The decision-maker found that the manner in which the Appellant (allegedly) chose to leverage his employment was not respectful to his role within the Health Service, the services that the Health Service provides to the community or to ABW. The decision-maker also found that it lacked integrity.
The decision-maker noted that as a medical specialist and senior leader within the Health Service's Medical Administration Team, he could be required to participate in recruitment processes for any roles within the Health Service, including Administration Support roles.
The decision-maker noted that during an intimate conversation with ABW (ABW had disclosed that she was applying for an administration role in a private health facility), that the Appellant made statements to ABW about what she should do if interviewed by him, specifically that she "should proceed to take [her] kickers (sic) off put them on the table with [her] skirt up and put [her] feet up on the death (sic) with [her] legs apart'.
The decision-maker held that the Appellant had failed to reflect the Health Service's values and commitment to ethical public administration. Further, by making statements such as this, the Appellant brought the Health Service into disrepute and questioned the Health Service's ability to conduct open and transparent recruitment and selection processes.
The decision-maker also found (in support of the substantiation of Allegation 1) that as a trained and skilled Medical Administrator, the Appellant ought to have identified ABW as suffering from mental health concerns following her messaging the Appellant on 4 January 2023 at 6:54pm and 6:56pm disclosing that she had a history of illicit psychedelic drug use, toxic relationships, emotional abuse, specifically stating that she went through a traumatic and financially ruinous six years.
The decision-maker found that instead of ceasing communications with ABW, he had continued to engage in numerous inappropriate conversations/comments with ABW that were not conducive to her mental health and wellbeing, arguably linking those discussions to the Appellant's employment with the Health Service.
Allegation 2: On various occasions in or about June 2023, you engaged with members of the public, including ABW and KM, in an inappropriate manner.

The decision-maker premised her findings about Allegation 2 by again relying upon the alleged admission by the Appellant in the meeting on 23 June 2023 that he had disclosed his employment with the Health Service to "build trust", and therefore, inappropriately and improperly attempted to leverage his position and status with the Health Service to engage with a member of the public.
The decision-maker confirmed that she had not been provided with copies of the messages that KM had sent to the Appellant. The decision-maker went on to find that regardless of the context in which the Appellant was messaging ABW in June 2023, in circumstances where the Appellant had already directly used his employment with the Health Service as a strategy to "build trust", it was not appropriate or respectful for the Appellant to question a member of the public's sexuality, as he had done in his message to ABW on or about 17 June 2024 at 10:24am.
The decision-maker then addressed the text messages to ABW on 18 June 2024 and found that these were inappropriate because the Appellant questioned her employment as a "sex worker", and the frequency with which she solicited people and the number of clients she had. The decision-maker observed that as a Health Service employee:
… we all have an obligation to ensure we communicate respectfully, appropriately and with integrity and impartiality when we engage with any member of the public where we have made them aware of our employment with the Health Service. Given you opted to interlink your conversations with ABW with your employment, these requirements applied to your conversation.[11]
[11] Attachment 1: Statement of Reasons, (n4), p 10.
In response to the Appellant's contention that ABW did not reveal mental health issues until her message on 18 June 2023 at 4:40 pm, the decision-maker found that this was inaccurate.
The decision-maker made the same finding for Allegation 2 as that noted in paragraph [36] of these reasons for decision.
The decision-maker found that having been a registered medical practitioner for more than 20 years and as an experienced specialist Medical Administrator/Director of Medical Services, the Appellant ought to have identified these concerns at the time and treated any ongoing communication and engagement with ABW sensitively, so as to not further impact ABW's mental health.
The last matter relied upon to substantiate Allegation 2 was a message sent to ABW on 18 June 2023, at 5:57 pm, directed to KM. The decision-maker notes that in that message the Appellant called KM a "pimp" and that following KM's messages the Appellant stated that he had reviewed and enjoyed the images ABW had shared with him.
The decision-maker found that the Appellant made this statement to someone who knew of his employment with the Health Service, and to further antagonise and inflame an already heated discussion.
Grounds of Appeal
The Appellant in his Appeal Notice contended that the disciplinary finding decision was unfair and unreasonable and relied on the following grounds to support his appeal[12]:
·The Chief Executive failed to take into consideration the Appellant's submissions made on 5 September 2024 and the material in its possession.
·The Chief Executive's determination to substantiate Allegation 1 and 2 is plainly unsound and unsupported on the evidence.
·The Chief Executive's overarching determination that the Appellant inappropriately and improperly attempted to leverage his position and senior leadership status with the Health Service to inappropriately engage with a member of the public is plainly unsound and unsupported on the evidence.
·The Chief Executive's reliance on a recollection of an alleged statement by the Appellant in a meeting on 27 June 2023 is unsatisfactory where he was denied procedural fairness in that meeting and plainly unreasonable as it disregards the balance of the material in its possession.
[12] Form 89 – Appeal Notice filed 5 February 2025.
The Appellant contends that the decision should be set aside, and in lieu thereof, an order declaring that the decision-maker's determination to substantiate Allegation 1 and 2 was not fair and reasonable and no grounds for discipline exist under s 91(1) of the PS Act.

Submissions
A Directions Order was issued on 6 February 2025 inviting the parties to file submissions in relation to the Appeal. A further amended Directions Order was issued on 13 February 2025, in response to a request for an extension of time from the Appellant.
Written submissions were filed by the parties in accordance with the Directions Order dated 13 February 2025.
On 1 April 2025, the Respondent via email correspondence to the Industrial Registry made a request to make oral submissions before me.
A mention was held before me on 7 April to discuss the Respondent's request and leave was granted for the Respondent to make oral submissions.
Oral submissions were heard before me on 16 April 2025.
I have considered all of the submissions provided by the parties. Although some of that material may not be specifically referred to in these reasons, it has been considered in deciding the appeal.
Appellant's Submissions
The Appellant's submissions were filed on 12 March 2025 and can be summarised as below:
·       The Appellant contends that the Respondent failed to take into consideration numerous salient points relating to the nature of the relationship between the Appellant and ABW including:
o   The private, consensual and intimate nature of their relationship which commenced through 'Secret Benefits', an online dating website.
o   While messaging online, ABW disclosed that she had a partner who was aware she was dating other men.
o   Their relationship progressed and they began messaging in WhatsApp where they shared details about themselves, their interests and their personal lives.
o   The Appellant vaguely disclosed to ABW that he worked in 'Healthcare Management' and nothing further, though accepts there was an inadvertent disclosure of his name. To be clear on this point, the Appellant denies ever informing ABW of his role or employment with MNHHS.
·       The Appellant submits that had the above factors been appropriately considered, it would have been evident that the communications were appropriate to the standard romantic relationship between two consenting adults.
27 June 2023 meeting
·        Dr Margetts contends that the Respondent places disproportionate reliance on its recollection of an alleged statement by the Appellant in the 27 June 2023 meeting. The Appellant submits that the alleged statement that Dr Margetts "directly informed ABW of his role and employment with the Health Service to build trust with her" was used to determine that he "inappropriately and improperly attempted to leverage his position and senior leadership status to inappropriately engage with a member of the public".
·       The Appellant contends that there was plainly evidence to the contrary about whether in fact the Appellant directly told ABW about his name, role and employment at MNHHS. As noted above, the Appellant denies sharing such details although he admits telling ABW in vague terms about working in a healthcare in an administrative role.[13]

·       The Appellant submits that a number of concerning issues were raised in relation to the procedural fairness of the 27 June 2023 meeting as follows:
o   no notice was provided as to what would be discussed during the meeting;
o   he was not offered to have a support person present with him;
o   Dr Margetts contends that the Respondent's recollection of the meeting is not supported by evidence such as a contemporaneous file note.
[13] Enclosure 2 – Response to Show Cause Notice dated 5 September 2024 at [3.12] – [3.13].

The overarching determination
·       The Appellant submits that the crux of the overarching determination is that it is inappropriate for a public sector employee to share information about their employment with the Health Service as a mechanism for 'building trust' to develop and maintain relationships with members of the public.

·       The Appellant maintains that there is insufficient evidence to suggest that this in fact occurred, other than an alleged statement made in the 27 June 2023 meeting. The Appellant contends that the evidence in the text messages suggests to the contrary – that the relationship developed organically and genuinely. The Appellant contends that there is nothing improper or inappropriate about sharing employment information when commencing a romantic relationship.
·       The Appellant submits that it was not open for the Respondent to conclude that there was inappropriate conduct by the Appellant where there is nothing improper or inappropriate about sharing employment information when commencing a romantic relationship.
·       The Appellant further contends that it is uncontroversial when meeting new people, romantic or otherwise, that there is an exchange of information to build connection, understanding, and naturally, 'trust'. The Appellant contends that the Respondent's fixation on the word 'trust' in this context suggests an exploitative intention by the Appellant with respect to ABW which is entirely absent on the evidence.
Applicability of Standard 1.5(d) of the Code of Conduct
·       The Appellant disputes the applicability of the above standard to the circumstances of this case, where an employee deals with, in their private and personal capacity, consenting adult partners and other personal relationships in a way that was entirely appropriate with community experiences in the circumstances.

·       The Appellant contends that the focus of the text of clause 1.5(d) is whether the conduct 'maintains the integrity of the public service' and the 'ability to perform duties'.[14] The Appellant contends that these words suggest a connection between the impugned act and whether such act does two things: fails to uphold public sector integrity and raises concerns about the employee's performance of their duties.

[14] The Appellant cites as an example Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue [2009] HCA 41 at [47].
· In relation to the first part of the clause, the Appellant submits that guidance can be drawn from previous decisions dealing with misconduct within the meaning of s 91(5)(b) of the PS Act.[15] The Appellant contends that those decisions relate to conduct which uncontroversially diminished public confidence in accordance with community standards such as relationships between teachers and students,[16] and being subject to criminal charges.[17]

[15] That being 'inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity'.
[16] Leigh v State of Queensland (Department of Education) [2025] QIRC 23.
[17] AB v State of Queensland (Department of Education) [2024] QIRC 49: this decision involved a decision to suspend the employee based on charges relating to firearms, drugs and unlawful stalking which grounded the reasonable belief the employee was liable to discipline, specifically a finding of misconduct under ss 91(1)(b) and 91(5) of the PS Act.
·       The Appellant also contends that guidance can be drawn from decisions with breaches of s 11 of the Australian Public Service Code of Conduct,[18] where the conduct undermined the fundamental value of public service integrity in being impartial and apolitical through online publication of vitriolic comments.[19]

[18] An employee must at all times behave in a way that upholds the APS Values and APS Employment Principles and the integrity and good reputation of the employee's Agency and the APS.
[19] The Appellant cites as examples Comcare v Banerji (2019) 267 CLR 373 and Starr v Dept of Human Services [2016] FWC 1460.
·       With respect to the second part of the clause, the Appellant relies on the decision of Rose v Telstra Corporation Limited ('Rose')[20] to submit that there must be a requisite connection between personal conduct and whether it was incompatible with the employee's duty as an employee. I will address the applicability of this decision later in these reasons.

·       The Appellant submits that in reliance on the above principles, there was nothing in the communications inconsistent with the integrity of the public service or the values of the Health Service where such communications are consistent with ordinary community experience about romantic relationships, and subsequent communications in June would be reasonably understood in the context of a breakdown of this relationship and the unexpected and threatening involvement of a third party.

·       In relation to the Respondent's concern about the Appellant continuing as a Senior Medical Officer Specialist in Medical Administration, the Appellant contends that the Respondent has not established any intelligible and real connection with the duties of this role but instead relies on an apparent failure to acknowledge ABW's assertions about her mental wellbeing and a vague finding that the conduct was not 'psychologically safe and appropriate'.

· The Appellant concludes his submissions by contending that the Respondent's decision was unsound and unsupported on the evidence. The Appellant further submits that the Commission would find that the proposed disciplinary action cannot stand since the disciplinary finding decision is fundamentally flawed and the requirements of Discipline Directive are not satisfied.[21]
[20] [1998] IRCommA 1592.
[21] See Nield v State of Queensland (Queensland Health) [2023] QIRC 294. Subsequent to the Appellant filing his submissions on 12 March 2025, the Industrial Court overturned the Nield decision on 25 October 2025 in State of Queensland (Queensland Health) v Nield [2025] ICQ 021. I have as a consequence given this part of the Appellant’s submissions no weight.
Respondent Submissions

The Respondent's submissions were filed on 20 March 2025 and are summarised as below:
·The Respondent maintains that the evidence available supports that the two allegations against the Appellant are capable of being substantiated.
·In response to the Appellant submissions in relation to the alleged statement made during the June 27, 2023, meeting, the Respondent contends that Dr Rushbrook and Mr Bourke were both present at the meeting and have a vivid recollection of statement. Therefore, the Respondent contends that it was reasonably open to Dr Rushbrook to consider the alleged statement disclosed to her in the meeting when determining that the two allegations were capable of being substantiated.
·The Respondent contends that the Appellant's conduct was sufficiently serious to warrant discipline for the following reasons:
othe Health Service is responsible for providing public health services to members of the Northern Brisbane community.
oThe Appellant disclosed his employment details (as confirmed by the Appellant in the 27 June 2023 meeting).
oThe Appellant was aware of ABW's vulnerabilities and prior trauma experiences.
oGiven the Appellant's senior position within MNHHS, and his experience in managing complex discipline processes, it is expected that the Appellant would model appropriate behaviour and engagement with the community, especially in instances whereby members of the public are aware of his employment.
oAfter disclosing his employment with ABW, the Appellant sent the members of the public a message referring to them as sex worker, a pimp and insinuating one of the members of the public could be a paedophile.

The Respondent submits that the Appellant's conduct is inconsistent with the Health Service’s interests as a public health service because the Appellant was made aware by ABW that she had a history of psychedelic drug use, toxic relationships and emotional abuse. The Respondent contends that given the Appellant’s standing as a Senior Medical Officer, he should have identified these concerns and their associated mental health impacts and engaged with her in a manner that did not cause further mental health conditions. The Respondent submits that this is not aligned with the Medical Board's expectations to protect and promote the health of individuals and the community.
The Respondent contends that the Appellant's conduct eroded the safety and confidence of ABW and KM in MNHHS. The Respondent contends that this is evidenced by KM's complaint to MNHHS and the attack on the Appellant's suitability as a senior medical officer.
The Respondent maintains the decision to substantiate the two allegations as a breach of clause 1.5(d) of the Code of Conduct was fair and reasonable.
In response to the Appellant's submissions in relation to procedural fairness, the Respondent contends that Dr Margetts was provided with a copy of the evidence that was before the delegate and that his response on 5 September was genuinely considered by the Respondent.
Appellant's Submissions in Reply

The Appellant's reply submissions were filed on 31 March 2025 and accompanied by an Affidavit from Dr Margetts. The submissions are summarised as below:
·The Appellant submits that the Respondent has failed to outline how the communications with ABW and KM were 'inappropriate'. He contends that it was not open to describe the Appellant's communications as inappropriate where there was no evidence of impropriety, coercion or undue influence. The Appellant contends that this is the first determination prior to any finding as to whether there was a contravention of clause 1.5(d) of the Code of Conduct without reasonable excuse in a way sufficiently serious to warrant disciplinary action pursuant to s 91(1)(h) of the PS Act.
·In response to the Respondent's assertion that Appellant ought to have identified ABW's mental health concerns and conducted himself in a psychologically safe way in light of this, the Appellant contends that this position is unsupported by objective evidence and accepts without reservation ABW's subsequent assertion about her mental health at the time. These assertions when read in context were aimed at eliciting an apology from Dr Margetts.
·In relation to concerns about procedural fairness, the Appellant submits that the Respondent fails to acknowledge the failure to provide him with notice of the concerns prior to the meeting on 27 June 2023.
·With respect to the alleged contravention of clause 1.5(d) of the Code of Conduct, the Appellant contends that a link cannot fairly and reasonably be drawn between Dr Margett's personal conduct and the workplace.
·In his Affidavit, Dr Margetts refers to relevant medical conditions that were impacting him at the time. He further confirms that at the time of the communications with ABW in June 2023, he was not taking his medication. The medication enables Dr Margetts to rehearse multiple communication phraseology and assist in succinctness, reducing impulsiveness, acting on moral outrage and avoiding oversharing.
·The Appellant contends that he does not usually take this medication outside of work unless he anticipates a particularly stressful or interpersonally demanding situation. Dr Margetts confirmed that his employer is aware of his disability and medication.
Oral Submissions
Respondent's Oral Submissions
The Respondent requested the opportunity to make oral submissions to the Commission.
In its oral submissions the Respondent sought to distinguish the factual circumstances of the appeal from those dealt with in Rose v Telstra Corporation Limited (Rose).[22]
[22] [1998] IRCommA 1592.
The Respondent firstly noted that the Appellant is a public sector employee, and that public sector employees are expected to ensure that their private conduct does not bring the public sector into disrepute. The Respondent then seeks to distinguish the decision of Rose on the basis that private and non-government organisations like Telstra do not have a comparable legislative framework around private conduct and how individual instances can bring an organisation into disrepute.[23]
[23] T 1-2, (16 April 2025) lines 44-48.
The Respondent further contends that these organisations typically do not have a code of conduct that outlines an employee's obligations when it comes to their private conduct. The Respondent places reliance on clause 1.5(d) of the Code of Conduct, which the Respondent contends confirms a public sector employee's obligations relating to their private conduct.
In relation to the submission made in the preceding paragraph, I would observe that any close reading of the Rose decision would reveal that in July 1996 (and prior to the incident that gave rise to Mr Rose being subject to a disciplinary process and terminated) that Telstra had in fact published a Code of Conduct entitled 'Our Company Values and Our Code of Conduct' which did include a provision which addressed conduct outside of work.
The Respondent contends that the State of Queensland has placed a high level of responsibility on public sector employees to ensure that their private conduct does not bring the employer and their employment into disrepute compared with private and non-government organisations such as Telstra. The Respondent cites the observations of his Honour Vice President O'Connor in Gilbert v Metro North Hospital Health Service & Ors[24] that the public sector disciplinary regime is designed to protect the public, maintain proper standards of conduct by public sector employees and protect the reputation of the public service.

[24] [2021] QIRC 255, at [239] per O'Connor VP.
The second matter raised by the Respondent were the professional expectations of a senior medical officer, the Respondent contends that the Appellant fell short of those expectations. The Respondent submits that Dr Rushbrook, being the Chief Medical Officer, was appropriately qualified to assess the Appellant's conduct as being inappropriate.
The Respondent further contends that in making that decision, the Respondent relied upon the Australian Medical Board's Good Medical Practice: A Code of Conduct for Doctors in Australia, which states that the Appellant has a responsibility to protect and promote the health of individuals and the community.
The Respondent contends that the Appellant acted inconsistent with the professional office he holds when making statements that were socially offensive, perceived as threatening and directed at an individual with mental health concerns. The Respondent concluded that in those circumstances, it was appropriate for the Respondent to assess the Appellant's private conduct against the professional office he holds with the public sector, and to find that he was liable for discipline. In support of its argument, the Respondent cites the decisions of Gilbert v Metro North Hospital and Health Service & Ors[25] and Hutchinson v State of Queensland (Queensland Health).[26]

Appellant's Oral Submissions

[25] [2021] QIRC 255.
[26] [2021] QIRC 317.
The Appellant submits that the crux of the Respondent's oral argument is that the decision was fair and reasonable because his (private) conduct reflected adversely on the 'integrity' of the Health Service due to his position as Director of Medical Services Reliever. The Appellant notes that this position concentrates on the reputation of the public sector.
In response, the Appellant contends that this position fails to engage with parts of the PS Act which the decision was made under. In relation to the findings made in the decision that there had been a breach of clause 1.5(d) of the Code of Conduct, the Appellant submits that the decision and the Respondent's submissions do not address, in any reasonable and balanced manner:
·Firstly, how the communication was inappropriate, in circumstances where they were sent to the Appellant's romantic partner ABW and the subsequent messages were in the context of her husband KM suddenly wanting an apology from him for infidelity many months after the relationship with ABW had amicably broken up.
The Appellant further contends the alleged impropriety arises from a statement (which the Respondent gave him no notice that the Respondent would use against him).[27] The Appellant notes that he has vehemently denied making this statement throughout the process and the text messages do not support this allegation.
[27] This being the alleged admission by the Appellant during the meeting on 27 June 2023 that he had told ABW of his role and position with the Respondent in order to build 'trust' with her.
The Appellant also submits that the allegation also appears to fully accept ABW's later assertions about being vulnerable in their relationship – which the Appellant alleges were suddenly and suspiciously made many months after they had amicably broken up – which he suggests points towards the complaint being vexatious.

·Secondly, if his communications were considered to be inappropriate, how the communications did two things:
(1)     Did not maintain the integrity of the public service where community expectations about the conduct of public sector employees would acknowledge that they are entitled to pursue their own consensual romantic relationships in their private lives; and

(2)     Impacted the Appellant's ability to perform his duty as a Medical Administrator where his scope of clinical practice does not include mental health practice and there is no evidence that he had demonstrated any values incompatible with his role.

·Lastly, how the communications were sufficiently serious to warrant disciplinary action where it was completely engaged in his private capacity, and fell short of conduct which would be considered serious by the community who would not pass any judgment or moral standing on a romantic relationship entered into an employee's personal life, which involved consenting adults.
In relation to the Respondent's reliance upon the Gilbert[28] and Hutchinson[29] decisions, the Appellant contends that these are of limited assistance because:

[28] Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255.
[29] Hutchinson v State of Queensland (Queensland Health) [2021] QIRC 317
·They involved allegations of misconduct which involves a different legal test (as opposed to a breach of clause 1.5 of the Code of Conduct).

·Hutchinson involved a nurse who was convicted on her plea of guilty of the offence of fraud and who was sentenced to a period of imprisonment. The Appellant submits that this is clearly distinguishable. The Appellant further contends in that case there was a clear and discernible link between the conduct and public sector integrity.

·To the extent that these cases assist in determining 'maintenance of the integrity of the public service', they must be distinguished. The Appellant contends that this is not a case where the conduct is considered so morally reprehensible it is inconsistent with the values of the public service. He further asserts that the Respondent's finding that his communications lacked 'integrity' and 'respect' finds no support on the evidence except for KM's initiating complaint in which he makes serious and unfounded allegations about the Appellant such as he "taking advantage" of ABW and engaging in "blackmail".
The Appellant submits that clause 1.5 of the Code of Conduct expressly requires a nexus between the private conduct of a public servant and their role within the public sector. The Appellant contends that the Respondent has not established the nexus between his communications and the performance of his role. The submission further notes that the Appellant is not trained to identify mental health issues.
The Appellant's oral submissions conclude by making the following general points:
·The conduct must be judged for what it actually was, not what the complaint alleged it was.

·If the Respondent's submissions are accepted, the State of Queensland would be empowered to take disciplinary action against its employees for all matters arising from their private romantic consensual relationships. The Appellant contends that this would create an untenable situation.

·The Appellant contends that had he conducted himself in the way suggested by the Respondent, he would have practiced outside the scope of his practice and breached the Medical Board's Code of Conduct by engaging in a boundary violation.

·The Respondent's focus on the reputation of the public sector unrealistically assumes the community's expectations of the public sector. The Appellant contends that the community would not unreasonably concern themselves with the private romantic details of the lives of public sector employees where common experience says that such matters can be complicated and are therefore intensely individual matters which do not concern the employer or the employee's performance of their role in any way.

·The submission goes on to note that the Respondent's reliance on his medical registration also attempts to hold him to an unreasonable standard of conduct in his private life. On the issue of the community's expectations of certain behaviour by medical practitioners consistent with their standing to promote the health of the community, the Appellant cites the observations of Judicial Member McGill SC in Medical Board of Australia v TXA (No 2).[30]
[30] [2023] QCAT 115.
That decision involved a professional disciplinary matter in which the medical practitioner had propositioned the wife of a patient regarding an extramarital affair. Judicial Member McGill SC made the following relevant observations:

[25] I do not consider that the mere fact that the respondent sought to enter into a sexual relationship with Mrs P, viewed in isolation, amounted to a breach of professional standards on his part. The Tribunal, acting under the National Law, is not a court of morals. No doubt the community expects medical practitioners to behave themselves in a general sense, but I do not consider that community attitudes today are necessarily hostile to adultery. They would not be the same as community attitudes one hundred, or even seventy years ago, when Christian standards of morality had much greater influence in the community. I doubt if many in the community would be much troubled by the idea of a married medical practitioner, in private life, making a pass at a married person. No doubt there is conduct which is so morally reprehensible that it is inconsistent with community expectations of a medical practitioner, but I consider that this falls a long way short of that.[31]
[31] Ibid, 7 at [25].
(citations omitted)

· The final matter raised by the Appellant is that the Respondent's decision is incompatible with a number of human rights that the Chief Executive was required to have regard to pursuant to the Human Rights Act 2019 (Qld) including:
oSection 15 – right to be treated equally before the law without discrimination (given his disability of which his employer was aware);
oSection 21 – right to freedom of expression;
oSection 25 – right to not have privacy unlawfully or arbitrarily interfered with.

Suspension

In the decision letter the delegated decision-maker, in addressing the issue of whether the Appellant's suspension should be continued, made reference to her previous correspondence of 18 October 2024.
By email dated 1 October 2025, the Industrial Registry requested both parties to provide information regarding when the Appellant was first subjected to suspension. The Respondent did not provide a response to this request.
The Appellant provided an email to the Industrial Registry on 2 October 2025 which set out the following timeline of events relating to his suspension from work:
·        27/6/2023 - Initial meeting and verbal instruction not to attend the workplace as I was on "Rostered Not Required" or "RNR" - a form of suspension that avoids formal escalation to the CE office.
·        3/7/2023 - Reiteration of "RNR" during meeting with Daniel Davidson from Meridian Lawyers.
·        6/12/2023 - Formal Suspension #1 - includes references to the meetings on 27/6/2023 and 3/7/2023 - Suspension from duty "on normal remuneration” - 3 months. Expiry 6/3/2024. (letter attached)
·        20/3/2024 - Formal Suspension #2 – "I have decided to continue with your suspension from duty on normal remuneration" - Expiry 16/6/2024 (letter attached)
…
·        23/5/2024 - Initial Show Cause Letter
·        17/6/2024 - Formal Suspension #3 – "I have decided to continue with your suspension from duty on normal remuneration" - Expiry 20/10/2024
·        17/6/2024 - Formal Suspension #4 – "I have decided to extend your suspension from duty on normal remuneration" - Expiry 19/1/2025
Consideration
I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at.

[2025] QIRC 305

10 November 2025 16 April 2025