Navaratnam v State of Queensland (Department of Employment, Small Business and Training)
[2022] QIRC 68
•7 March 2022
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: PARTIES: | Navaratnam v State of Queensland (Department of Employment, Small Business and Training) [2022] QIRC 068 Navaratnam, Kathiravelu v State of Queensland (Department of Employment, Small Business and Training) |
CASE NO: | PSA/2021/388 |
PROCEEDING: DELIVERED ON: | Public Service Appeal – Appeal against a decision under a directive 7 March 2022 |
| HEARING DATES: | 18 February 2022 |
MEMBER: HEARD AT: | Pidgeon IC Brisbane |
ORDERS: | The decision appealed against is confirmed. |
CATCHWORDS: LEGISLATION: | PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLLY - PUBLIC SERVICE APPEAL - where the appellant lodged a grievance - where the appellant lodged a complaint regarding how a grievance was dealt with - where the appellant sought an internal review of that decision - where the appellant now seeks an external review of that decision Public Service Act 2008, s 194 Industrial Relations Act 2016, s 539 and s 564. Appeals Directive 07/20 Individual employee grievances Directive 11/20 |
Reasons for Decision
Background to matter
Dr Navaratnam is employed by the State of Queensland as Senior Lead Auditor, Quality and Compliance, Investment Division with Department of Employment, Small Business and Training.
The Respondent's submissions set out a useful summary addressing the matters which led to the complaint and subsequent response and internal review. The following paragraphs are based on those submissions.
In September 2019, one of Dr Navaratnam's colleagues sent him and another colleague an email titled, 'Happy Chinese Horoscope' (horoscope email). The email contained the zodiac animals for the author and two recipients of the email being: a mouse, a monkey and a rabbit.[1]
[1] Respondent's submissions filed 17 December 2021, [1].
In October 2019, the colleague who sent the horoscope email made a complaint about Dr Navaratnam. In December 2019, Dr Navaratnam made a complaint about the colleague and the horoscope email (original complaint).[2]
[2] Ibid, [2].
That complaint by Dr Navaratnam did not follow the normal process and was sent by email to the Director-General of the Respondent. The Respondent says that it took the complaint seriously and dealt with it appropriately.
The original complaint was addressed at the local management level by Mr Verrankamp, Principal Ethics and Integrity Advisor and resolved with Dr Navaratnam's agreement. It was agreed that the Respondent would speak with the colleague about the matter. At that time, the discussion did not occur. Additionally, Dr Navaratnam was not provided with a formal written outcome closing out the original complaint.[3]
[3] Ibid, [3].
Separate to the above, Mr Navaratnam had, between 21 December 2020 and 19 April 2021 made a number of complaints concerning his employment and the management of the Department. On 9 March 2021, the Department appointed an external investigator to begin investigating aspects of Dr Navaratnam's complaints. During the interviews and email exchanges with the external investigator on 16 April 2021, Dr Navaratnam complained that he believed no action was ever taken in regards to the horoscope email complaint, that he had never received an apology and was never advised of any outcomes of that complaint.[4]
[4] Ibid, Attachment 4, pages 2, 3.
Some of the complaints Dr Navaratnam had made became part of the terms of reference for an investigation into the matter. It was determined that the horoscope email matter was to be dealt with separately. In a letter informing Dr Navaratnam the approach that would be taken, Deputy Director-General Steven Koch stated
Complaint 15 (Horoscope Email) is also a serious matter. However, it has already been the subject of local management action. I understand from supporting documents provided to me, you met with Mr Verrenkamp at that time. The Department believed the matter had therefore been resolved. Nevertheless, I acknowledge your recent concern that you believe your original complaint about (the employee's) email to you in 2019 was mismanaged, and had not been resolved.
As the delegate for this matter and in accordance with the Individual Employee Grievances Directive, I have instructed Acting Manager, Human Resources, Sharon Bellingham to undertake a review into Mr Verrenkamp's management of Complaint 15 and provide me with a report on her findings. I also note there may be other witnesses to the matter including (employee) who may be interviewed regarding the historical management of your complaint.
If I determine that the management action at the time was not appropriate, or I feel something further ought be done, I will consider taking further management action. In due course, you will receive a letter notifying you of the outcome of the administrative review. As such, Complaint 15 will not form part of the TOR for the current investigation.[5]
[5] Ibid, Attachment 4, page 3.
On 5 August 2021, Mr Koch again wrote to Dr Navaratnam to tell him that Ms Bellingham, A/Manager Human Resources, had concluded her administrative review of the process undertaken by the Department in response to the horoscope email complaint. Mr Koch explained that he holds 'appropriate delegated authority to determine the outcome of that administrative review, and this correspondence contains my decision in that regard'.[6] Mr Koch explained the process undertaken by Ms Bellingham. Mr Koch then summarised Ms Bellingham's findings:
[6] Ibid, Attachment 2.
· You did not follow the correct process to lodge your Original Complaint. At the time, that process was set out in the Managing Complaints Policy, which is now the Individual Employee Grievance Policy. Instead, you wrote directly to the Director-General.
· The Director-General appointed Mr Verrenkamp to investigate and consider your complaint.
· Your description of [the employee's] conduct fell within category one of the CaPE Framework. It was therefore necessary for the department to address the Original Complaint promptly, and make a record of the action taken and the reasons for that action.
· Mr Verrenkamp took steps to discuss the matter with you. He communicated to Ms Rhiannon Howell, Chief HR Officer, that he believed local management action in the form of a managerial enquiry would be the appropriate action.
· Mr Verrenkamp provided you with the Notes, which were titled 'Outcome Advice'. Such outcome advice could have been presented in a more detailed and formal manner, and best practice requires this would take the form of correspondence to you.
· (The employee who sent the Horoscope Email) was not spoken to by the department about your Original Complaint.
Having outlined Ms Bellingham's findings, Mr Koch then provided his determination
Decision and reasons about your Process Complaint
I have reviewed Ms Bellingham's report dated 26 July 2021, and the evidence referred to therein. I have formed my own views on the basis of that evidence. I have also considered your Original Complaint against the CaPE Framework.
Having considered all those materials and the background set out at the beginning of this letter, I have determined that:
· You made your Original Complaint in December 2019 about the (employee's) email from September 2019, in response to a complaint the (employee) raised about you in October 2019.
· You did not consider the (employee) to be acting maliciously be sending that email or engaging in the related conversations.
· Mr Verrankamp correctly identified that you perceived the (employee's) email to be insensitive, and therefore some action was warranted. The conduct you complained of was no ongoing. In particular, you felt that the (employee) should be advised that you believed the Horoscope Email was insensitive towards your ethnicity and skin colour.
· Mr Verrankamp proposed, and you agreed, that the appropriate outcome of your Original Complaint would be for a manager to speak with (the employee) regarding sending the Horoscope Email and provided with some advice about sensitivity in corresponding with colleagues in the department.
· At the time, you did not seek an apology, nor confirmation that (employee) had been spoken to, or any other outcomes. While your Original Complaint was in December 2019, you did not make any enquiries about the outcome of the matter until April 2021.
· Unfortunately, Mr Verrankamp did not meet with (employee) to have that discussion at a time proximate to your Original Complaint. In his discussions with Ms Bellingham, Mr Verrankamp explained that, around that time, (employee) had recently made a complaint about you. He therefore felt it was not an appropriate time to address your complaint with her, and the meeting with (employee) about the Horoscope Email was not subsequently actioned.
Accordingly, I am reasonably satisfied that best practice was not followed in closing off your Original Complaint. The department ought to have provided you with a formal outcome letter rather than the Notes. The discussion between the department and (employee) in regard to your Original Complaint also ought to have occurred. I have determined that these two steps were an oversight by the department, which need to be addressed.
Mr Koch then addressed the next steps to be taken by the Department
Actions of the department as a result of my decision
I am reasonably satisfied that a conversation with (employee) about the need for sensitivity when corresponding with colleagues remains an appropriate outcome to address your original concern. I will therefore be instructing Ms Vanessa Pye to arrange this local management action.
To confirm, this letter constitutes the outcome letter with respect to your process complaint.
At this stage, the Respondent says that it rectified those issues by speaking with the colleague and by the issuing of the letter from Mr Koch dated 5 August 2021.
On 5 October 2021, Dr Navaratnam wrote to Mr Warwick Agnew, Director-General, seeking an internal review of the Mr Koch's decision (formal outcome letter). The internal review decision is outlined below and confirmed the decision.
In his letter requesting an internal review, Dr Navaratnam lists reasons the Director-General should 'review and overturn' the decision
The decision made by the Deputy Director General was:
1. Based on informal and on-procedural discussion took place with a Human Resources staff is unfair and a natural justice has been denied to me.
2. The invalid and non-reliable process followed to reach decision did not include all relevant issues and it is biased against me.
3. There is evidence that Deputy Director-General failed to validate the information provided to him and use them as face value in his decision making. Thus the decision will not stand public test.
4. The DEBST misled me and failed a duty of care to advise me to follow a due process when I requested for an investigation from you.
5. Failed to consider no action, no apology, and no formal letter of notification of the staff involved in the racial abuse.
6. Purposively neglected the conflict of interest of the internal investigator lead to the item #5 above and no action was taken to completely isolate the internal investigators from this process.
7. Failed to consider the impact the racial abuse had obvious and silent impact on my life, career and health. This is one of the key contributor to my mental breakdown and anxiety about the DESBT and my work. This is a life or death situation to me. This should not be overlooked.
8. In support of the DESBT and the management staff did not treat this racial abuse a serious matter at any point in time and instead rushed to defend it. No action were taken until I request you for an investigation.[7]
[7] Ibid, Attachment 5.
Dr Navaratnam goes on to provide detailed specifics of his complaint.[8] I have summarised these submissions as follows:
[8] Ibid, Attachment 5, pages 1 – 4.
·Concerns about Mr Verrankamp's handling of the matter through management action at level;
·he had also raised discriminatory comments about this age and these were not investigated;
·he only received information about the administrative review when he requested a response on 23 September 2022;
·the racial abuse was not included in the Terms of Reference for the investigation into his complaints;
·there has been a conflict of interest with Mr Verrankamp undertaking an investigation;
·a number of matters related to the Investigation of his other complaints;
·he did not receive an apology;
·he is on sick leave and should have all leave refunded;
·matters regarding Workcover; and
·the process has not addressed racial abuse and shows the Department is not serious about racial abuse.
Finally, Dr Navaratnam states that he requests that racial abuse be included in the terms of reference for the investigation; a refund of all of his leave; after leave is refunded he can make a decision about whether to stay with the department or leave.[9]
[9] Ibid, Attachment 5, page 4.
On 26 October 2021, Dr Navaratnam received a decision dated 21 October 2021 from David Lucas, Acting Deputy Director-General, Engagement Division. That decision outlined a summary of the decision which was subject of the internal review and then went on to say:
The nature of an internal review
The internal review is a consideration of whether the Decision was fair and reasonable. It is not a re-investigation of the matters the subject of the Decision.
As summarised in the Decision, clause 9.2(b) of the Directive provides that your Request must:
(a) clearly state the reasons for your dissatisfaction with the Decision, and not merely state a belief that the Decision was unfair and unreasonable; and
(b) state the action you believe would resolve your grievance.
As such, re-wordings or reiterations of the Complaint or the Process Complaint in and of themselves are not relevant to determining whether the Decision was fair and reasonable. It is necessary for you to explain to me why the Decision was unfair or unreasonable.
Further, issues outside the scope of the Decision (such as the Complaint Management Decision or other decisions made on behalf of the Department or by another agency concerning your employment), are not relevant to whether the Decision was fair and reasonable.
Summary of my decision and reasons about your Review
I have considered the process undertaken to arrive at the Decision, including the investigation of the Process Complaint undertaken by [the employee]. I have also considered your Request. For the reasons set out in this letter and below, I have found that your Request does not adequately explain nor evidence why the Decision was unfair or unreasonable.
From the outset, I have found that much of your Request is a re-assertion of your Original Complaint or Process Complaint. Further, you now characterise the 2019 Horoscope Email as 'racial abuse'. Your request repeatedly claims that the Decision did not grapple with your Process Complaint. That is not borne out on the material before me.
The Decision found that the action proposed at the time of your Original Complaint, which you agreed to at that time, was appropriate. Unfortunately, that agreed action (discussion with [the employee]) was not carried out when it ought to have been. The outcome of the Decision was that the original outcome was to be undertaken, and you were formally notified of such. That outcome, and the underpinning reasoning, is fair and reasonable. There is no reason why the passage of time should result in a more severe outcome.
As best I can understand your Request I have summarised your reasons for requesting an internal review and addressed those below.
The decision goes on to address the reasons Dr Navaratnam requested a review. In addressing each reason, Mr Lucas states the reason, considers Dr Navaratnam's submissions with regard to that reason and comes to a conclusion. It appears that Mr Lucas has considered Dr Navaratnam's four page request for internal review in its entirety and distilled the request into some key reasons. I find that the reasons are a fair representation of the matters Dr Navaratnam raises in his request.
With regard to 'Reason 1', that the complaint about the horoscope email was originally managed in an 'informal' manner, which resulted in a denial of natural justice, Mr Lucas said:
You suggest that you and Mr Verrenkamp discussed personal issues which caused you to lose focus on the issues the subject of the Complaint, and that your various meetings about the matter sometimes 'did not last even 15 minutes'. You also say that Mr Verrenkamp 'really wanted to manage this grievance at his level', and 'Accordingly he brained washed me and throw words to me that he wanted to hear from me (sic).' You go on to say that you were not provided with a formal outcome letter at a time proximate to your complaint.
It is correct that Mr Verrenkamp dealt with your Original Complaint, and reported his conclusions to the Department. All complaints should be resolved as promptly and fairly as possible, and that involves utilising local management action whenever appropriate. There was nothing inappropriate about that approach. Nor were you denied natural justice by virtue of that approach: your complained was considered, Mr Verrenkamp met with you to discuss your complaint, and an outcome was agreed at the time.
Further, the Decision specifically acknowledged that while you had been provide with a copy of meeting notes containing the agreed outcome, you ought to have been given a formal outcome letter. The Decision went on to provide you with that written outcome. That was the appropriate resolution of the matter in my view.
'Reason 2' related to Dr Navaratnam's allegation that Mr Verrenkamp engaged in 'silent and friendly bullying and intimidation', and had a conflict of interest when he discussed your complaint with you, because he engaged in conduct such as telling you to 'consider this young lady's future career.' The decision said:
It is particularly difficult to understand your reasoning in this aspect of your Request.
First, insofar as this reason is a re-phrasing of your Process Complaint, it does not explain why the Decision was unfair and unreasonable.
Second, as you already explained, local management action was the appropriate means to resolve your Original Complaint. That is evident in the fact that it resulted in an outcome agreed by you at the time.
Third, your allegation that Mr Verrenkamp told you to 'consider this young lady's future career' was never an aspect of your Process Complaint. It is therefore outside the scope of this internal review, and so it is unnecessary for me to determine whether it is true or not.
Even if it were true, it does not alter the appropriateness of the outcome of the Decision.
'Reason 3' was Dr Navaratnam's allegation that the decision maker was 'biased against' him. Mr Lucas' response to this reason was:
This is a very serious allegation, and therefore requires an appropriate degree of supporting evidence.
There is no material before me whatsoever which indicates the decision maker for the Decision was biased against you. The Decision set out all the relevant material, and arrived at a fair and reasonable conclusion. I am reasonably satisfied your concern of bias is unsubstantiated.
'Reason 4' was Dr Navaratnam's allegation that the investigator had a 'conflict of interest', was 'found to have conflict of interest on this matter' and the Decision 'purposively neglected the conflict of interest of the internal investigator'. The response to this reason was:
I do not know why you believe Ms Bellingham was 'found to have a conflict of interest' in this matter. No such finding has been made by the Department. To confirm, there is no evidence before me that Ms Bellingham had a conflict of interest in relation to her investigation of your Process Complaint.
Given your Request refers to a number of matters outside the scope of the Decision, it may be that you are referring to someone else. If that is the case, your purported ground for review is irrelevant to the Decision and therefore outside the scope of my decision.
'Reason 5' is Dr Navaratnam's contention that not all relevant issues were considered in the Decision. In response, Dr Lucas said:
You assert that:
I made similar running comments regarding Mr Anthony Ferry's discriminative comments based on my age with Matthew and Ms Lois. However, on this occasion, this age issue was included in the terms of reference because the DEBST management realised that this can be rejected under the pretext of no corroborative evidence to support it. Thus, the exclusion of the racial issues was not justifiable by any standard. It is not a cold case. Therefore, investigation was partial and incomplete; and the decision by the Deputy Director General was biased and not well founded. I could not find any difference between on the comments I made about the age discrimination and racial abuse. (sic)
You also suggest that the 'racial abuse was deliberately removed from the (terms of reference).
The question of which aspects of your complaints would be further considered, and the nature of that further consideration, was the subject of the Complaint Management Decision in May 2021. Those issues are therefore beyond the scope of this internal review into the Decision.
The relevant issues for consideration in the Decision were the handling of your Original Complaint, and the appropriate outcome of your Process Complaint. Those issues were addressed in the Decision.
'Reason 6' deals with Dr Navaratnam's contention that the Department did not take his original complaint or his process complaint seriously and that no action was taken until he requested that action be taken. The decision 'failed to consider the impact' of the substance of your complaint on Dr Navaratnam's life, career and health. In response to this reason, Mr Lucas said:
The Decision expressly found that while local action was taken upon receipt of your Original Complaint, there had been an oversight, and determined how that oversight was to be corrected (namely by undertaking the action agreed in 2019).
That error was not realised until you made your Process Complaint. Once that occurred, the Department promptly determined to have your concern investigated and then decided the matter.
Further, the Decision maker clearly considered that, even in light of that context, you may still want some support to process your Original Complaint and the Decision. the Decision concluded by advising you that if you wanted any further support, you could access Employee Assistance. That option remains open to you.
'Reason 7' was that the Decision 'failed to consider no action, no apology, and no formal letter of notification'. Mr Lucas said:
The Decision specially deals with those issues.
The Decision found that: appropriate action was agreed upon at the time (but unfortunately not undertaken); you did not seek an apology at the time of your Complaint; and you ought to have received a formal notification (in addition to the informal notification you were provided with) which the Decision maker went on to provide you.
For completeness, even in your Request, you do not seek an apology as an outcome to your grievance.
'Reason 8' was that Dr Navaratnam had only received the Decision 'upon my request', and 'other than the informal email correspondence', and 'did not get a formal letter from the Human Resources about the outcomes of the investigation conducted'. Mr Lucas said:
The Decision letter was mistakenly sent to your work email on 1 September 2021, rather than your personal email. The Department acknowledged that error and provided you with additional time to lodge your Request. The Decision did not become unfair or unreasonable by virtue of that circumstance.
'Reason 9' was Dr Navaratnam's contention that an investigation into his other complaints was not properly undertaken, due to issues including the investigator 'exerted undue pressure on (you)'. Mr Lucas said
This is another matter outside the scope of this internal review. Your other complaints are subject to a separate process, which was determined and explained in the Complaint Management Decision.
'Reason 10' was Dr Navaratnam's allegation that the Department has treated him unfairly regarding his WorkCover application. Mr Lucas said:
I am not aware of the details of any claim you may have with WorkCover Queensland concerning your employment. Further, as previously explained in this correspondence, the fact that you may have a matter with WorkCover Queensland is entirely separate form this internal review. It has no relevant to the fairness and reasonability of the Decision.
Mr Lucas also considered the outcomes that Dr Navaratnam was seeking in his request for internal review. With regard to the outcome sought regarding racial discrimination being included in the Terms of Reference for the investigation, Mr Lucas said that this issue was determined in a different decision and was 'therefore not an appropriate outcome from this internal review of the Decision'.
With regard to the outcomes Dr Navaratnam sought regarding his WorkCover and a request to have his leave refunded, Mr Lucas explained that the WorkCover matter was entirely separate from the internal review and that refunding his leave because of separate processes was not an appropriate outcome of the internal review. With regard to Dr Navaratnam's request that upon his leave being refunded he could consider his future with the Department, Mr Lucas said
The department will continue to support you whilst you are on leave and will work collaboratively with you when you have the necessary medical clearance to return to work. I am aware the department has offered alternative duties to you previously, and should it be necessary as part of a future return to work program, the department will be able to accommodate alternative duties and other reasonable adjustments as required.
The Decision concludes by informing Dr Navaratnam of his appeal rights.
In his appeal notice filed 12 November 2021, Dr Navaratnam lists his reasons for appeal:
The decision made by the Director General/His Representative (Acting Deputy Director General, Engagement Division) was not fair and reasonable and failed me natural justice. The decision by them was:
1. Not supported by Employee Grievance Form, record of interview and third-party representation and validation, actions taken and outcomes.
2. Based on incomplete and informal unwritten records and recollections by the initial reviewer (Mr Matthew Verrenkamp) that cannot be verified. Appropriate departmental procedures were not followed.
3. The process followed and decision made were conducted in secret; fabricated, and secretly concluded and closed without providing me with the final letter.
4. There is evidence that Director General/his representative totally failed to validate the information provided to them during his internal review process. Instead, they simply followed the decision made by the Deputy Director-General, Investment. This is nothing more than a domino decision.
5. Conflict of interest by the initial reviewer (Mr Matthew Verrenkamp) of my complaints was not informed to me and he was not isolated from this and subsequent investigation processes.
6. I have documented the prejudice in my performance development plan. The Department did not take appropriate steps to be compliant to its own zero tolerance policy on racial discrimination and abuse.
Is the Appellant entitled to appeal?
Section 194 of the Public Service Act 2008 (The PS Act) lists various categories of decisions against which an appeal may be made. Section 194(1)(eb) provides that an appeal may be made against "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)".
The appeal notice was filed with the Industrial Registry on 12 November 2021 within 21 days of the decision being received on 26 October 2021. I am satisfied that the Appellant may appeal the decision.
Appeal Principles
Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
A public service appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision of 11 October 2021 was fair and reasonable.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Consideration
Dr Navaratnam's submissions accompanying his reasons for appeal provide background by explaining the Horoscope email and the complaint made. I would characterise the submissions accompanying the appeal notice and also the submissions made through the appeal process as either addressing the issues above or raising new points of appeal. I will deal with them has best I can to ensure that all points are dealt with.
The material before me indicates that there is no dispute that the horoscope email was sent to Dr Navaratnam by the colleague. A copy of the email has been provided to me.
Further, it is clear that following Dr Navaratnam's complaint about the email, raised in the context of a 'counter complaint' following the colleague making a complaint about him, Mr Verrankamp dealt with the matter at a local level.
Dr Navaratnam received and subsequently confirmed, notes of the meeting which stated that the agreed outcome of the complaint would be that the Department would have a conversation with the colleague about the inappropriateness of the email and the need for sensitivity when communicating with colleagues.
As I understand it, that closed the matter and it was considered by the Department to have been dealt with through management action at the local level. I note here, that if Dr Navaratnam was unhappy with this outcome to his complaint, it was at that point that he had the opportunity to raise a grievance or request an internal review of the handling of the matter. This did not occur.
Some considerable time later, Dr Navaratnam again raised the issue of the horoscope email and the handling of the matter in the context of a range of complaints he made regarding a number of people and issues over a period of time.
It was determined that given the complaint about the horoscope email appeared to have been dealt with at the local level and to that extent was not a 'new' complaint, it was to be dealt with differently.
The first, and in my mind, entirely reasonable step taken was that an employee, Ms Bellingham, was delegated the task of undertaking an administrative review to determine what happened at the time.
Ms Bellingham reported her findings to Mr Koch, and it is uncontroversial that at the time of the original complaint about the horoscope email, there had been an agreement between Dr Navaratnam and Mr Verrenkamp that the Respondent would have a conversation with the colleague regarding the need for sensitivity when communicating with colleagues. Importantly, the review also found that no such discussion had ever occurred with the colleague and that no provision of a formal outcome of the complaint occurred.
Mr Koch then wrote to Dr Navaratnam to outline the steps which had been taken and to inform him that he had directed that the conversation with the colleague occur. Mr Koch said that his formal letter to Dr Navaratnam should be taken to be the formal outcome of the complaint.
As is outlined above, Dr Navaratnam then requested the internal review to be undertaken. That internal review was undertaken by Mr Lucas and a decision was provided to Dr Navaratnam.
Aspects of Dr Navaratnam's appeal
Conflict of interest by the initial reviewer (Mr Verrankamp) of my complaints was not informed to me and he was not isolated from this and subsequent investigation process
This appeal ground seems to relate in part to the actions taken by Mr Verrankamp at the time of the complaint. The submissions go to the nature of the meetings held between Dr Navaratnam and Mr Verrankamp and that the process was 'informal'. The decision of Mr Lucas does not make findings about the initial process undertaken by Mr Verrankamp other than to accept Ms Bellingham's finding that that the agreed outcome which resulted from it was not fulfilled and there was no formal notification to Dr Navaratnam that the matter had been resolved.
It is unclear to me what Dr Navaratnam means when he says that Mr Verrankamp should have been 'isolated from this and the subsequent review process'. It does not appear, on the material before me, that Mr Verrankamp was involved in any further review beyond providing Ms Bellingham with information about the events as they occurred at the time. He certainly doesn't appear as a decision maker with regard to the complaint response letter or the internal review letter.
As an aside, Ms Bellingham's findings would indicate that Mr Verrankamp was a willing and forthright participant in her review and told her that he had not closed off the matter.
The process followed and decision made were conducted in secret; fabricated, and secretly concluded and closed without providing me with the final letter
There is no evidence before me that the steps taken by Mr Koch occurred in secret. Mr Koch's letter to Dr Navaratnam openly outlines the steps that were taken, the findings that were made and tells Dr Navaratnam that the letter services as the 'final letter'.
There is also an issue regarding Dr Navaratnam's receipt of that letter from Mr Koch. The Department states that the letter was sent to the wrong email address in error and this was rectified with the result that Dr Navaratnam received the letter. The Department extended the period of time for him to seek an internal review of that decision to ensure Dr Navaratnam received natural justice.
I note that Dr Navaratnam says that the delay in receiving that letter caused him to delay commencing other appeals and that he has suffered detriment as a result. Dr Navaratnam's decisions in regard to actions he will take on his other appeals are a matter for him, and not something I will address in this appeal.
The letter was provided to Dr Navaratnam. He requested an internal review. The internal review took place. That internal review decision is now subject of this appeal.
There is no evidence that Dr Navaratnam has been denied natural justice with regard to the decision.
The decision of Mr Lucas was not supported by 'employee grievance form, record or interview and third-party representation and validation, actions taken and outcomes
The decision of Mr Lucas was based on incomplete and informal unwritten records and recollections by the initial reviewer (Mr Verrankamp) that cannot be verified. Appropriate departmental procedures were not followed
There is evidence that Director General/his representative totally failed to validate the information provided to them during his internal review process. Instead, they simply followed the decision made by Deputy Director General, Investment. This is nothing more than a domino decision
I have been unable to conclude that Mr Lucas's decision was not supported by proper information provided to him with regard to the decision of Mr Koch, including the administrative review undertaken by Ms Bellingham and the relevant notes outlining Mr Verrankamp's recollection of events at the time.
While Dr Navaratnam makes reference in his submissions to not receiving audio recordings of interviews, the Respondent says that no such recordings exist. I note that Dr Navaratnam received a 'record of interview' via the notes Mr Verrankamp provided to him following their agreement on an outcome to the matter. The evidence before me demonstrates that at that time, Dr Navaratnam confirmed to Mr Verrankamp that the notes represented an appropriate, agreed outcome reached at a local management level.
There is no evidence before me that this was 'nothing more than a domino decision'. It appears to me that Mr Lucas has carefully gone through Dr Navaratnam's request for internal review and identified various grounds of appeal. It then appears that he has addressed each of these in a sufficient way for Dr Navaratnam to understand what conclusions he has come to with regard to each.
I have documented the prejudice in my performance development plan. The Department did not take appropriate steps to be compliant with its own zero tolerance policy on racial discrimination and abuse.
Dr Navaratnam's performance development plan is not a part of the relevant matters for me to consider in undertaking this external review.
The Respondent submits that it has made no finding of racial discrimination or abuse and that it has not been required to do so.
I understand this ground of appeal relates to Dr Navaratnam's frustration that his original complaint about the horoscope email did not result in the agreed local action being taken or a formal outcome of the matter. I note that both of these things have now occurred.
I further note that at a hearing held on 18 February 2022 for the purpose of Dr Navaratnam making oral submissions in support of his appeal, Dr Navaratnam again stated that he did not trust that 'action had been taken on this matter'.[10] Dr Navaratnam said, 'I was not sure about whether that matter has actually been discussed with my co-staff, whether there is a kind of action that has been taken…'.[11] With reference to the decision letter, Dr Navaratnam said, 'There was a kind of vague statement in that – you know, there was a – said, okay, this will read this out, not been actually taken up yet. It will be, you know, taken. It will be, you know – so at that point, it was not actually to contacted yet'.[12]
[10] T1-1, ll41-43.
[11] T1-16, ll34-36.
[12] T1-17, ll11-14.
As the interaction with Dr Navaratnam continued at the hearing, he reiterated his mistrust that action had been taken
COMMISSIONER: So the letter from Mr Koch tells you that he has directed an employee – he's directed and delegated to them the role of having the conversation with the colleague. And then he says:
This letter constitutes the outcome letter.
So that's what Mr Koch said. I don't know that I'd refer to that as a vague statement. That's a pretty specific statement to you about what he is directing to have occur.
DR NAVARATNAM: Commissioner, I agree with that and those or that – you know, there are terms used "ought to have occurred". I'm instructing that line manager to – that means it didn't happen and when Sharon Bellingham, you know, investigated this process and she has clearly report in her report, no, you know, follow up action has been, you know, undertaken.[13]
[13] T1-17, l36 – T1-18, l2.
Dr Navaratnam agreed that part of his appeal was that he did not believe that the action the Department said would happen was going to happen.[14]
[14] T1-26, l1-2.
Dr Navaratnam also said:
I think it is very important that the Commissioner should seek an evidence of what the action has been actually taken as report by, you know, Mr Steve Koch or the David Lucas on this matter, and also that – what the – you know, the – whether the department has really implemented those actions, you know, from the Ms Sharon Bellingham recommendation on that one…[15]
[15] T1-31, ll22-27.
There is no evidence before me to suggest that the action referred to in the letter did not occur. Ms Kahler was the Department's representative at the hearing. I note her submissions in response to Dr Navaratnam
MS KAHLER: …Dr Navaratnam has stated that he's not confident that all the actions that were to be followed by the department that had not been undertaken initially may not have been undertaken, specifically the conversation with his colleague. If I could refer to submission 17 of the respondent's submissions of the 17th December. It reads:
Those remedies have been actioned. When a representative of the respondent spoke to the colleague about the horoscope email [the employee] was deeply concerned that the appellant had interpreted the horoscope email in such a manner. She advised the respondent that she absolutely did not intend to offend the appellant and that the monkey is her Chinese horoscope, not the appellant's. It is understood the appellant's zodiac year is the rat.
Dr Navaratnam appears to be of the view that there should have been disciplinary action taken against the colleague who sent the email. I note that this may be a view Dr Navaratnam has formed in the months and years since the event. It appears to me that at the time of the event, Dr Navaratnam agreed that the appropriate outcome of the matter would be for a conversation to be had with the colleague about the nature of the email.
Refusal to include racial discrimination in the external review
The terms of reference for the external investigation undertaken in response to Dr Navaratnam's complaints is not a matter for this appeal and I will not address the submissions here or make further comment about that process.
Personal impact on Dr Navaratnam, sick leave, WorkCover matter
Dr Navaratnam submits that racial abuse has had an impact on his life, career, health and family. He says that this is a 'key contributor to my mental breakdown and anxiety about the DEBST and my work'.
I note that Dr Navaratnam made various references to taking sick leave and to a potential WorkCover claim. These matters are not relevant to this appeal.
I also note that Dr Navaratnam has been informed of and has accessed the Employee Assistance Program and that the Department has said that when he decides to cease his voluntary sick leave and has clearance from his doctor to return to work, it will cooperate with any return to work plan.
The appeal cannot succeed
For the foregoing reasons, Dr Navaratnam's appeal cannot succeed. There is no evidence before me that the decision of Mr Lucas was not fair and reasonable.
The Respondent submits that the appeal is no more than Dr Navaratnam expressing general disagreement with the reasoning in the internal review decision. I agree.
While Dr Navaratnam has stated that he has not received procedural fairness, the evidence before me demonstrates the process followed reflects the requirements of Directive cl 9.1(f) and cl 9.2.
A disagreement with the outcome of a review is not evidence that procedural fairness has not been afforded to an appellant. Dr Navaratnam has not been able to establish that he has been denied natural justice.
I understand that Dr Navaratnam is aggrieved about the matter and the failure of the Department to take the local action agreed upon at the time. However, as a result of his complaint, those matters have now been rectified. I understand that Dr Navaratnam may feel that this is 'too little, too late' and I accept that the Department's actions at the time of the horoscope email were not ideal, however the Department have taken steps to remedy this issue. I note that this issue is just one narrow part of a broader picture involving a range of other complaints made by Dr Navaratnam and Dr Navaratnam's health issues.
Dr Navaratnam raised a complaint. The complaint was investigated and an outcome was provided. That outcome sought to rectify the matters subject of the complaint.
The matter was appropriately dealt with by Mr Koch and it was entirely open to Mr Lucas to decide that Mr Koch's decision was fair and reasonable.
The internal review decision of Mr Lucas is confirmed, and the appeal is dismissed.
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