Queensland Services, Industrial Union of Employees v Brisbane City Council

[2014] QIRC 32

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Queensland Services, Industrial Union of Employees
v Brisbane City Council [2014] QIRC 032
PARTIES:	Queensland Services, Industrial Union of
Employees
(Applicant)
v
Brisbane City Council
(Respondent)
CASE NO:	D/2012/204
PROCEEDING:	Application to revoke disciplinary findings and
disciplinary penalty
DELIVERED ON:	14 February 2014
HEARING DATES:	8 August 2013 and 20 December 2013
MEMBER:	Industrial Commissioner Black
ORDERS :	1.  Application dismissed
2.  Disciplinary findings and disciplinary

penalty confirmed

CATCHWORDS:	INDUSTRIAL DISPUTE – dispute notification - conciliation conference unsuccessful – matter referred to arbitration – section 331 application –
disciplinary findings and disciplinary penalty challenged
CASES:	City  of Brisbane Act 2010 s. 194(3),
Industrial Relations Act 1999 s331(b)(ii),
Briginshaw v Briginshaw (1938) 60 CLR 336.
APPEARANCES:	Mr. A. Herbert, Counsel, instructed by the Brisbane City Council. Mr N. Henderson, Queensland Services, Industrial Union of Employees.

Introduction

[1]     This matter arises from the notification of an industrial dispute by the Queensland Services, Industrial Union of Employees (QSU) in relation to the employment by the Brisbane City Council (Council) of Mr Mark Higgin. The dispute notification was lodged with the Registry on 14 September 2012.

[2] Mr Higgin was subject to disciplinary action on two occasions in 2012. The first warning was issued on 16 February 2012 and the second warning was issued on 9 July 2012. Under Council's disciplinary processes employees may request an internal review of the decision taken. After the internal review, avenues of appeal are available to Council employees. At the time that Mr Higgin was disciplined, a Council employee dissatisfied with a disciplinary measure had the right to notify the Commission of a dispute or had the right to institute an appeal against the disciplinary decision pursuant to s. 194(3) of the City of Brisbane Act 2010 (COB Act). Following amendments to the COB Act in December 2012, the right of appeal was limited to the commencement of proceedings in the Commission.

[3]     In respect to the warning issued on the 16 February 2012, Mr Higgin did request an internal review. On 22 March 2012, Mr Higgin was advised that the original decision to discipline was confirmed. In respect to the warning issued on 9 July 2012, Mr Higgin did not request an internal review but addressed the matters in issue in a dispute notification lodged with the Registry on 14 September 2012.

[4]     The first warning arose out of allegations that Mr Higgin had made inappropriate comments to female co-workers at a workplace function in December 2011. The second warning arose out of allegations that Mr Higgin made inappropriate comments in April 2012 to a different female co-worker in both an office setting and also during a car trip to another council office.

[5] Consequent upon the lodgment of the dispute notification on 14 September 2012, a conciliation conference was convened by the Commission on 2 October 2012 in an endeavour to resolve the dispute. This conference was not successful and the matters in dispute were referred for arbitration. Subsequently Council launched an application under s. 331 of the Industrial Relations Act 1999 (the Act) seeking a declaration from the Commission that further proceedings arising from the dispute notification were neither necessary nor desirable in the public interest and that the Commission should exercise its discretion under s. 331(b)(ii) of the Act to decline to exercise any of its powers in respect to the dispute notification, other than the power of dismissal.

[6] The section 331(b)(ii) application was decided by the Commission as currently constituted on 18 March 2013. The effect of the decision was that the Commission would refrain from further hearing some parts of the dispute, but would hear those parts of the dispute that:

	related to the second warning, including the disciplinary process, the disciplinary findings and the disciplinary penalty, including the matters raised in paragraph 12 of the dispute notification; and
	involved a consideration of whether the second warning penalty was reasonable when all aspects of this disciplinary process were considered in conjunction with the disciplinary findings and the disciplinary penalty determined by Council on 16 February 2012.

[7]     The Commission declined to hear those parts of the dispute that sought to challenge the validity or the appropriateness or reasonableness of the disciplinary process, disciplinary findings or the disciplinary penalty associated with the first warning, and sought to require Council to remove from its records any material or documentation related to the first warning.

[8]     It follows that the principal matters for determination in this decision relate to the warning issued by Council on 9 July 2012. Findings will need to be made in respect to the disciplinary process, the disciplinary finding and the disciplinary penalty. A consideration of the outcome of the disciplinary process relating to the first warning of 16 February, 2012 is also relevant.

[9]     The paragraph 12 matters referred to in the 18 March 2013 decision relate to the remedy sought by the QSU on behalf of Mr Higgin. The remedy sought is that:

(i)       Mr Higgin be reinstated retrospectively to his substantive position with effect from 9 July 2012, and that all wages owing should be repaid;

(ii)      Mr Higgin's supervisory duties should be restored. In this regard it is acknowledged by the QSU that it would not be practicable to restore the supervisory duties retrospectively; and

(iii)    The final warning issued to Mr Higgin on 9 July 2012 be removed from Mr Higgin's file

Chronology

[10]   The chronology associated with this matter is set out below:

First Warning:

6 December 2011 -	First incident
17 January 2012 -	Council issues Show Cause letter
24 January 2012 -	Mr Higgin's response to allegation
16 February 2012 -	Council confirms disciplinary action and formal
warning issued
24 February 2012-	Mr Higgin requests an internal review
20 March 2012 -	Review officer confirms formal warning
Second Warning:
19 April 2012 -	Second incident
9 May 2012 -	Mr Higgin interviewed about incident
5 June 2012 -	Council issues Show Cause letter
13 June 2012 -	Mr Higgin's response to allegations
9 July 2012 -	Disciplinary action confirmed and final warning issued

First Warning

[11]  The first warning was communicated in correspondence dated 16 February 2012. The correspondence discloses that the warning was issued following a determination that the following allegation had been substantiated:

"Victimisation/Harrassment in the Workplace. On 6 December 2011, at a work function, inappropriate comments were made to a female staff member relating to her removing clothing and dancing on a table."

[12]  The resulting disciplinary penalty involved a formal warning and additional matters which were set out in the correspondence dated 16 February 2012 and which are reproduced hereunder:

"Your continued employment with Brisbane City Council is dependent upon

you:

	Complying with Council's Code of Conduct at all times;
	Complying with all of Council's policies and procedures at all times;
	Effectively managing the internal issues within your team;
	Completing a refresher Code of Conduct training by 1 March 2012; and
	Team Leader training including the Grievance Resolution Procedure and managing poor performance and misconduct to be completed by 30 March 2012.

Furthermore, as a consequence of your actions you will immediately be removed from your role as a Contact Officer. Any subsequent return to the role of Contact Officer will be as a result of your success in participating in the appropriate recruitment process.

Any further instances of misconduct may result in termination of your employment with Brisbane City Council."

Second Warning

[13]   The letter dated 9 July 2012 set out the substantiated allegations of misconduct:

Allegation One:	That on 19 April 2012 you repeatedly spoke to Lillian Atkins in an inappropriate manner in the office prior to travelling together by car to another Council Office.
Allegation Two:	That on 19 April 2012, while travelling in the car with you, you continued to speak inappropriately to Lillian Atkins.

[14]  The disciplinary penalty involved a formal final warning and the imposition of the following sanctions:

	A requirement to participate in a Formal Performance Management Plan for a period of 12 months, with monthly progress review meetings;
	A requirement to undergo training and development under a specifically prepared Training Plan including participation in a coaching and training program.
	The removal of Team Leader duties; and
	A temporary demotion from the substantive role of Principal Investigator, Band 7, Pay Point 4, to Band 7, Pay Point 2 for a period of 12 months. However after a six month period, Mr Higgin was eligible to return to his Team Leader role and to progress to Band 7 Pay Point 3 provided that he had consistently complied with the Code of Conduct and met expectations outlined in the Performance Management Plan.

[15]  At the conclusion of the 12 month period, provided expectations were met, Mr Higgin would be returned to his substantive position at Band 7, Pay Point 4.

Additional Evidence

[16]  The hearing into these matters was held on 8 August 2013 following which the decision in the matter was reserved. However, on 29 November 2013, and before the release of the decision, the QSU wrote to the Commission and applied for a re- opening of the proceedings to enable the Union to present fresh evidence. For the purpose of determining the QSU application the matter was listed for hearing on 20 December 2013. At the conclusion of the hearing I informed the parties that I did not intend to accede to the QSU request.

[17]  The QSU argued that fresh evidence should be allowed for the purpose of correcting evidence given by Ms Atkins dealing with whether she had made complaints about Council staff other than Mr Higgin. In her evidence on 8 August 2013 Ms Atkins was asked whether she had made other similar complaints. She answered to the effect that she had made a complaint about someone and provided some detail. The QSU submission was that they now had evidence of a second complaint made by Ms Atkins, and that they wanted the opportunity to present this evidence and to recall Ms Atkins for the purpose of giving her an opportunity to respond to the new evidence and explain her position.

[18]  In my view the QSU and Mr Higgin had ample opportunity to challenge Ms Atkins' credit during the proceedings held on 8 August 2013. Ms Atkins made her complaint against Mr Higgin on 19 April 2012 and the dispute notification was filed on 14 September 2012. The QSU and Mr Higgin have had sufficient time to make enquiries into Ms Atkins history, a course of action that would have reasonably been foreseen. If they held a reasonable doubt about the veracity of Ms Atkins evidence about prior complaints they could have pursued the matter with Ms Mason and Mr Salvati, during cross-examination on 8 August 2013. Further if the QSU were to lead evidence of a second complaint made by Ms Atkins, the QSU would then have to establish that the complaint was frivolous or capricious before establishing a connection between this complaint and the determination to be made in the current matter.

[19]  In this regard, it was the submission of Council that if the sole purpose of the application by the QSU for additional evidence was to attack Ms Atkins credit, then such evidence would be inadmissible under the rules of evidence.

[20]   After considering the competing submission I have not been persuaded to allow the introduction of fresh evidence. These proceedings arise out of a dispute notification filed on 14 September 2012. Some three months after the proceedings have closed and over two years after the dispute notice was filed, the applicant seeks to call additional evidence. The effect of the application would be to cause the respondent to conduct further investigations and to call additional evidence itself by way of rebuttal. Additionally Ms Atkins would need to be recalled. I am not persuaded that sufficiently compelling circumstances exist to warrant this course of action. After 8 August 2013 the respondent was entitled to presume that the litigation had ended. It would cause a significant allocation of resources if the respondent were required, in effect, to defend the application a second time.

Objections to Evidence

[21]  Council objected to the inclusion of paragraphs 6 to 44 of the first statement of Mr Higgin which is in the evidence as Exhibit 1. These paragraphs contain material relevant to the first warning which, it was submitted, should be excluded given the decision of the Commission dated 18 March 2013 which had the effect of narrowing the scope of the matters to be subject to arbitration.

[22]   In the end result the objection was not pressed on the condition that it was accepted that the specified paragraphs would only be considered for the purpose of providing background, and would not be taken into account in the determination of the matter except to an extent consistent with the 18 March 2013 decision.

Review of Disciplinary Process

[23]  The incident which gave rise to the warning occurred on 19 April 2012 and a complaint filed shortly thereafter. While Mr Higgin was informally advised of the complaint in a meeting with Mr Hodgson and Mr McCahon, no details of the complaint were provided at that time. This information was provided in a subsequent meeting held on 9 May 2012. Mr Higgin attended this meeting with Mr Tarnawski from the QSU, while Mr Hodgson and Ms Mason represented Council. Mr Higgin's version of events differed from that provided by Ms Atkins who had made the complaint. In the circumstances Mr Hodgson indicated that an investigation may be required. Subsequently Mr Higgin received a show cause notice dated 5 June 2012. A précis of his 9 May 2012 interview was attached to the show cause notice. The notice and the précis are in the evidence as Attachment 5 to Exhibit 1.

[24]   The show cause notice indicated that an internal investigation into the complaint had been finalised and that the findings of the investigation were to substantiate the allegations. The investigation had been conducted by Ms Cindi Mason. The show cause notice included the following paragraph on page 3:

"I have therefore determined that the most appropriate action for me to take is to issue you with a 'Show Cause' letter allowing you a formal opportunity to provide your version of events in writing to me".

[25]  Mr Higgin's response to the show cause notice is in the evidence as Attachment 6 to Exhibit 1. In his response he expressed a number of views and requested a meeting with Mr Salvati prior to any final decision being taken. Mr Salvati acceded to this request for a meeting and the meeting took place.

[26]  In his prepared statement (Exhibit 1) Mr Higgin did not seriously advance any proposition that would support a finding that the disciplinary process was flawed or that he had been denied natural justice arising from the way the process had been conducted. He did indicate in paragraph 88 that he had previously made a formal complaint of bullying against Mr McCahon, and that Mr Turville was also involved. He said that these concerns were dismissed when he raised them with Mr Salvati.

[27]  Mr Higgin had also raised these allegations during the meeting with Mr Hodgson and Ms Mason on 9 May 2012. His précis of interview included a statement made on behalf of Mr Higgin to the effect that Mr Higgin had been the victim of a witch hunt by Branch Manager, Brett Turville. A statement was also made that Mr Higgin had "no faith in the judgment or impartiality of the divisional manager".

[28]  Notwithstanding that Mr Higgin raised the prospect of a conflict of interest and that he had been the victim of a witch hunt during the process, he did not advance any material in support of these allegations in the proceedings before the Commission.

[29]  There is no basis upon which I could conclude that, in terms of procedural elements, the disciplinary process was flawed or that Mr Higgin was denied natural justice arising from the manner in which the investigation was conducted. He was fully informed of the allegations made against him and he was given the opportunity to explain his version of events and to respond to the show cause notice of 5 June 2013. His request for a face to face meeting with Mr Salvati prior to any conclusion being reached was granted.

Review of Disciplinary Findings

[30]  In Mr Higgin's view there was insufficient evidence to sustain the disciplinary findings against him. In his response to the 5 June 2012 show cause letter, Mr Higgin expressed his disagreement with Council's findings that the allegations made against him have been substantiated. The précis of interview also discloses that Mr Higgin disagreed in a number of respects with versions of events put to him. On 25 July 2012, Mr Higgin informed Council by email that, while he agreed to sign an amended version of a Performance Management Plan, he reserved the right to challenge the results of the investigation in an appropriate forum.

[31]  While consistently challenging the outcome of the disciplinary investigation, Mr Higgin's defence of the allegations made against him was muted in some respects. This is illustrated by his written response to the show cause letter dated 5 June 2013 (Attachment 6 to Exhibit 1) and by the content of his discussion with Mr Salvati. In the latter case it was Mr Higgin's evidence that he met with Mr Salvati for the purpose of explaining his version of events and that during the meeting he had made it clear that he did not accept the findings of the investigation and that he did not accept that the allegations against him should have been substantiated. However it was Mr Salvati's evidence that Mr Higgin did not raise anything that was not contained in his letter other than to draw attention to, and explain, his financial circumstances. His evidence is recorded at T2-41:

"And what did Mr Higgins say to you about the matter? Did he tell you anything that wasn't set out in the letter?---The only additional thing Mr Higgins talked about was his financial situation. That's the only thing I can find that's not in this letter that was raised.

Did he provide you with a detailed factual version of the events that differed from the version of events provided by Ms Atkins and detailed in the investigation report?--- No. No, he did not."

[32]  Council argued that Mr Higgins response to the show cause letter issued by Council on 5 June 2012 indicated an acceptance on his part of the validity of the claims made against him, that he had acknowledged the error of his ways, and that he did not dispute the disciplinary findings. It followed in Council's view that Mr Higgin's application to the Commission should be viewed in this context. Council relied on the following extract from the response to the show cause letter:

"After receiving a formal warning on 16 February 2012, I established some strategies that I thought would ensure that no further incidents would occur. These strategies include; not attending workplace social functions, not initiating or engaging in non-business related discussions, distancing myself from members of the team who it may be seen that I am friends with. Clearly these strategies did not deliver the outcomes I had anticipated. I will therefore be searching for personal development opportunities such as "mindfulness" training or interpersonal skills which can help me to deliver the message I am contemplating to others in a non-offensive way. I intend to undertake this training within Council or via an external source if such training is not available internally and at my own expense if necessary."

[33]  However the QSU challenged Council assertions that Mr Higgin had acknowledged his mistakes and confessed to his sins. The QSU submitted that Mr Higgin never accepted that the warnings were warranted and that he continued to agitate about the imposition of the disciplinary penalties, including the compounding effect of the warnings which led to the diminution of his income and his loss of status. In his evidence Mr Higgin explained that his muted opposition should not be construed as an admission of guilt, but that it reflected his cynicism about the process and his belief that the outcome proposed in the show cause notice would not be changed.

[34]  Some time after she returned to Green Square from West End, Ms Atkins said that she typed up a note about both the incident at Green Square and the incident occurring during the car trip to West End. This note is in the evidence as Attachment 2 to Exhibit 6. Subject to considerations of credit, the note provides a contemporaneous account of Ms Atkins version of events on 19 April 2012.

[35]  The main thrust of the QSU case on behalf of Mr Higgin was that the investigation conducted by Ms Mason was flawed and that, on an objective view of the evidence, it would be difficult to substantiate the allegations. The flaws articulated by the QSU are set out below:

	That having substantiated Allegation One based on the corroborating evidence of Mr Tasker and preferring Ms Atkins version to the version of Mr Higgin, Ms Mason erred in that she was predisposed to preferring Ms Atkins version relating to Allegation Two where there was no corroborating evidence. Ms Mason should have viewed each allegation entirely independently of each other. The QSU challenged Ms Mason's conclusion on page 4 of the investigation report that although Mr Higgin denied making certain comments to Ms Atkins while travelling in the car to West End, it was "plausible that this conversation did occur as Atkins indicated, and that this resulted in Atkins feeling frightened and uncomfortable".
	That the finding in respect of allegation two is contradicted by the fact that Ms Atkins conducted herself normally at West End and did not seek alternative transport home. There was no evidence suggesting that Ms Atkins was distressed in any way during her stay at West End.
	Inconsistencies in Ms Atkins 19 April 2012 note and her précis of interview relating to events occurring during the trip to West End. The inconsistencies related to when Ms Atkins took a phone call and whether Mr Higgin said that he would "take" Ms Atkins to a basement or "lock" Ms Atkins in a basement. Ms Atkins précis of interview is in the evidence as Attachment 3 to Exhibit 6.
	Ms Mason's conclusions went beyond what was claimed to have occurred by Ms Atkins. The complaint was that Ms Mason did not appropriately reconcile differences in the recollections of Ms Atkins and Mr Tasker relating to the exchanges that took place at Green Square. The précis of interview of Pat Tasker (Attachment 4 to Exhibit 6) revealed that he heard Mr Higgin say something like "no phone calls, don't disturb Lillian and I. We want to be alone". The significant difference between Ms Atkin's version and Mr Tasker's version is the use of the words "we want to be alone".
	The QSU submitted that because only Mr Tasker recalled the words "we want to be alone", Ms Mason should have raised this matter with Ms Atkins. However Ms Atkins was not asked whether she recalled these words being stated. It followed in the view of the QSU that Ms Mason has accepted that the words "we want to be alone" were uttered. The submission was then put that given that the phrase in question was clearly suggestive, Ms Mason erred in taking it into account, particularly in a context where the other words used could be regarded as neutral in terms of suggestiveness. The importance of the QSU submission was underscored by Ms Atkins evidence during the proceedings when she agreed that Mr Higgin did not use the words "we want to be alone".
	Ms Mason also failed to reconcile differences relating to Mr Tasker's recollection that Ms Atkins said something like "no Mark, that is inappropriate". This objection, or similar words, was repeated on one or two occasions according to Mr Tasker. However Ms Atkins said in her 19 April note that she used the words "stop it now, thank you". The QSU took the view that this difference should have been explored by Ms Mason in her investigation and that in not surfacing the difference Ms Mason may have erred in accepting Mr Tasker's version as the correct version.

[36]   It was the QSU submission that the failure of the investigation to resolve these discrepancies and inconsistencies suggested deficiencies in the process employed and pointed to errors in the conclusion arrived at.

[37]   In my view, nothing of significance swings on whether the words "that is inappropriate" were used. Mr Tasker did not say that he heard Ms Atkins say the words "that is inappropriate", he said she used words like that. If these words were excluded from the précis of interview it would not diminish from Mr Tasker's general recollection of what transpired including that he heard Ms Atkins say forcefully the words "No Mark!".

[38]   I cannot find anything in Ms Mason's report content which indicates that she specifically relied on Mr Tasker's recollection of the words "we want to be alone". All Ms Mason said was that Mr Tasker's version of events supports the version provided by Ms Atkins. I believe that Ms Mason was correct in so concluding. In exchanges such as this weight is to be given both to the actual words spoken and to how those words are understood. Additionally, any innuendo attaching to the words delivered is relevant. In this regard Ms Atkins says in her note of 19 April 2012 that "I did not like the implication of the comments that were made, they made me feel uncomfortable". The determination to be made is whether such an inference or conclusion could reasonably be arrived at. It is in this regard that Mr Tasker's version is significant. In the précis of Mr Tasker's interview it is reported that Mr Tasker "saw Atkins raise her hand and it was clear to him that she did not like what was being said to her". Mr Tasker expressed the opinion in the interview that he thought it was inappropriate for Mr Higgin to say what he said, and he said that he thought that Mr Higgin's tone was "suggestive" and "risky" and that the comments had a "nuance" to them. In my view these are the operative considerations and I conclude that Ms Mason was correct in finding that Mr Tasker's version of events supported Ms Atkins version of events.

[39]    The QSU also criticised Ms Mason's conclusion in respect to the second allegation. In her note of 19 April 2012 Ms Atkins said that she became uncomfortable and frightened by two statements made by Mr Higgin. She first became concerned when she observed Mr Higgin appear to take the car in a direction away from West End and not directly to the intended destination. When she asked Mr Higgin where he was going he declined to say and simply responded with the words "you'll see". A short while after this response Mr Higgin said "Take you to a basement, torture you, play Frank Sinatra music".

[40]   The QSU drew attention to differences between Ms Atkins précis of interview and her note of 19 April 2012. The précis of interview recorded that she alleged that Mr Higgin said "lock you in a basement" while in the note she said the words were "take you to a basement". In its submissions the QSU said that the deviation in language was significant and that it was "surprising that in any competent and thorough investigation, significant discrepancies like that weren't picked up and at least enquired into". In her oral evidence, when asked to explain the use of the word "take" in her 19 April 2012 statement and the use of the word "lock" in the précis of interview, Ms Atkins said that she was unsure which word was used on the day. Given the context, I don't consider that it matters much which word was used. Ms Atkins could reasonably be expected to be distressed or concerned by the implication arising from either phrase.

[41]   The other difference alluded to by the QSU went to when Ms Atkins took a phone call during the car trip to West End. In her statement of 19 April 2012, Ms Atkins said that she received a phone call while exiting the Go Between Bridge and that the phone call ended as the car pulled into the West End building. However, the précis of interview recorded that she took the phone call as they were pulling in to the building at West End. In my view no material difference arises from the two versions. The difference is not significant in itself nor could the difference support any finding of credit adverse to Ms Atkins.

[42]    The QSU argued that knowledge of the events and circumstances associated with the first warning delivered to Mr Higgin in February 2012 infected the investigative process with bias and contributed to a tendency for Council to favour Ms Atkins version over Mr Higgin's version. I am not disposed to accept this submission. While Mr Higgin's prior warning for inappropriate behaviour was a background consideration, I accept that the substantiation of both allegations by Ms Mason constituted findings which were reasonably open to her on the particular facts and circumstances relating to the second warning. While the disciplinary penalty would have been different had the first warning not existed, I am satisfied that the allegations arising from the second warning would have been substantiated irrespective of the first warning.

[43]    In my view there was a clear basis for Ms Mason to prefer Ms Atkins version over Mr Higgin's version of events at Green Square. The basis is the corroborating evidence of Mr Tasker. I acknowledge however that the resolution of the conflict in the versions dealing with the car trip to West End is a more difficult exercise, particularly given that these events were not witnessed by others. Ms Mason explained how she arrived at her decision at T2-79 in the following terms:

"Then when she went on to tell the account of - from her point of view, of the - of the trip between Green Square and West End, I could understand how she would feel very uncomfortable. She said to me that she was very frightened. She told a story of a - of a conversation that happened in the car. In my report, I said that there was no other party there that could, you know - could confirm her version of events, but that on the balance of probabilities, that I would think that it's more likely that her version was the accurate version. I guess it just didn't make sense to me, that if I looked at what Mr Higgin had said, that all seemed quite innocuous and it didn't make sense to me why someone would go to all the trouble of making a formal complaint, and would've been so visibly upset and impacted by this interchange with Mr Higgin, if - if the - you know, she had just - it just didn't make sense to me and I thought she was the more credible witness, most definitely.

But you've got no basis for drawing that conclusion, have you?---Well, I felt that I did, in that I felt that Mr Tasker had backed up what Ms Atkins had said about the - the conversation at Green Square and, also, that Ms - I believed that Ms Atkins was genuinely upset and frightened by the incident that had occurred".

[44]    In her explanation Ms Mason agreed that the conclusion she had reached in respect to the events at Green Square did influence her finding in respect to the events occurring during the car trip to West End. Her evidence in this regard is set out at T285:

"Yes, but you've used that to inform yourself for the rest of your findings,
haven't you?---Yes.

Yes, so you've used the fact that you believe what was said at the Green Square was corroborated by Mr Tasker, to give you some basis for concluding that Ms Atkins' story about the car trip is the one to be preferred?---Also, Ms Atkins, I thought, was a very credible witness. She was visibly upset by the events. She seemed to me to be a reasonable person and my assessment was that - that this must've been very uncomfortable for her to have come forward with a complaint. Complaints are not easy things to make, and it's a very difficult process to go through that. Why would anyone just out of the blue make this up and willingly do it? That, to me, was implausible, that she would make this up to have a go at Mr Higgin. That, to me, was implausible."

[45]   Having reviewed Ms Mason's reasoning I am unable to disagree with the approach she adopted in resolving the conflicting versions provided by Mr Higgin and Ms Atkins. In essence Ms Mason took into account the proven indiscretion committed by Mr Higgin in Green Square, the demeanour of Ms Atkins during her interview, the failure to surface any motivation for malicious intent on the part of Ms Atkins, the unlikelihood that Ms Atkins would make a complaint for no reason at all, and the content of the contemporaneous note prepared by Ms Atkins on 19 April 2012. I accept that there was sufficient information to support a balance of probabilities conclusion that Ms Atkins version should be preferred.

[46]  The QSU also submitted that Ms Atkins did not appear distressed during the period of time she spent with Mr Higgin at the West End building. Her demeanour was not consistent with what might be expected from a person frightened or traumatized by events occurring in the trip from Green Square to West End. Nor in the circumstances would Ms Atkins have been expected to travel back to Green Square with Mr Higgin. The QSU took the view that insufficient consideration was given in the investigation to these inconsistencies and had these matters been correctly weighed by Ms Mason it would not have been possible for her to substantiate the second allegation.

[47]   It was Ms Mason's evidence that during her investigation she did ask Ms Atkins why she did not take another form of transport back to Green Square. The evidence is recorded at T2-82:

"Now, did you ask Ms Atkins why she didn't choose to take some other form
of transport from West End back to the Green Square offices?---Yes, I did.

Oh, and what did she say?---She said that she needed to get back - she needed to return - to work. She didn't really have much of an explanation beyond that."

[48]   Ms Mason further evidence about Ms Atkins stay at West End is recorded at T2-83:

"So she was happily wandering around with him, wasn't she?---Well, you're
concluding that she happily did that. On what evidence do you base that?
You weren't there.

Well, did she have to go with him? Did you ask him, ask her? Sorry?---She was at there to do - she was there on duty to do a job and she did it. She's told me that she was not happy returning to Green Square in the car with him, but she knew she had to get back to work.

See, the reality is, is it not, Ms Mason, that you've just accepted everything Ms Atkins has told you without - without - exception, isn't it?---I've questioned her. I've asked for more detail when it hasn't - in my mind, a particular point hasn't been clear."

[49]   While the QSU submission dealing with the demeanour of Ms Atkins at West End is relevant, I note that at paragraph 13 of her prepared statement (Exhibit 5), Ms Atkins says that she was only at West End for about half an hour. This is the only evidence given about the duration of the stay. Given that Mr Higgin and Ms Atkins were at West End for a relatively short period of time, I do not intend to attach much weight to the QSU submission in this regard. Additionally, given that Mr Higgin and Ms Atkins were interacting with other people in a public environment, there would be no reason to expect Ms Atkins to be overtly nervous or apprehensive during her time at West End. Also, there was no evidence led to the effect that Ms Atkins demeanour was joyful or exuberant or loud or noisy. That is, she was not exhibiting behaviour significantly inconsistent with a subdued demeanour which might be expected to prevail following the events at Green Square and the trip to West End.

[50]  Having considered all the evidence, it is my view that Council has not acted unfairly or unreasonably in concluding that the allegations made against Mr Higgin were substantiated.

Review of Disciplinary Penalty

[51]  Mr Higgin was temporarily demoted from his substantive role and relieved of his team leader responsibilities. In terms of a financial penalty he was demoted from Band 7, Pay Point 4, to Band 7, Pay Point 2, for six months. After six months, provided conditions were met, his team leader duties were to be restored and his pay elevated to Band 7, Pay Point 3. At the end of the 12 month period he would be paid at Band 7, Pay Point 4.

[52]  Mr Higgin has been employed by Council for approximately 35 years. It was the QSU view that insufficient regard had been had to Mr Higgin's long period of service with his employer. He filed two supplementary statements addressing the impact of the penalty imposed on him by Council. In these statements Mr Higgin gave evidence of the hardship caused to him by the financial penalty and also of the impact on his health and well being of the disciplinary process, its outcome and the financial penalty.

[53]  The QSU challenged the conclusion of the Council that when the two incidents are viewed together, they give rise to a pattern of behaviour. It was the QSU view that the complaints should have been resolved independent of each other and that the fairest approach would have been for Council to determine the second complaint on the basis that this was a rare event in an otherwise long and distinguished career of Mr Higgin, and not to be unduly influenced by the fact that two incidents occurred within close proximity.

[54]  It was Mr Salvati's evidence that, given that the allegations against Mr Higgin were substantiated, he could not have imposed a lesser sanction. He said at paragraph 20 of his prepared statement (Exhibit 4) that he considered that the penalty imposed:

"was the lowest penalty that could reasonably be imposed in the circumstances, and that to remove the sanction imposed on his conduct would be to send a very unfortunate and wrong message to Mark and to other employees who may be minded to engage in such conduct in the future."

[55]  It was clear on the evidence that Mr Salvati was primarily motivated in fixing a penalty by Mr Higgin's status or rank in the organisation; by the fact that he was a supervisor of Ms Atkins; and also by the fact that the incidents on 19 April 2012 followed closely after the conclusion of an earlier disciplinary process in which not dissimilar complaints against Mr Higgin were investigated.

[56]  The QSU however described the penalty as severe involving a loss of income and a demotion from a supervisory role. It was of particular significance that the punishment meted out in July 2012 was based on the cumulative effect of both the first and second warnings. The QSU submission was set out at T2-90:

"Those matters or those punishments that he's been subjected to as consequence of the findings in this matter are serious punishments. The reduction in income in the gross sense of $6,000 per annum for six months and then three or so thousand dollars for the balance, means that, in a gross sense, in the year that the lower rates of pay were 45 being experienced, he's suffered a loss of income of in excess of $4,000 in rough terms. I say rough terms because in reality the dollars, the few extra dollars over the 4,000 don't really matter. $4,000 is a significant penalty and if one thinks about someone coming before the courts, a fine of $4,000 is a substantial fine. And, essentially, that's what this is. This is a Council imposed fine in relation to the

conduct which they believe that Mr Higgin engaged in."

[57]  Council on the other hand asserted that the punishment fitted the crime. Their submission was set out at T2-112:

"…the financial impost accompanied by the reduction in responsibilities that

was put on him for a 12 month period in two six month increments was a very, very light penalty indeed and is the very least, one would say, given the fact that the previous penalty that had been placed on him does not appear to have worked or had any particular curative effect. Perhaps this one might and

[indistinct] of which he claims in respect of the amounts that have been – he

has been denied as a result of the penalty that was imposed on him are a very minor imposition compared to the loss of his employment and the council [indistinct] in the modern era it is in a position where if it doesn't take robust steps in relation to an employee with that sort of predisposition they stand the risk of being vicariously liable for what they do. So in those circumstances, even if you were disposed to consider the matter by reference to the question of whether the council acted dramatically beyond what might be considered fair for what happened, having regard to his record and having regard to council's responsibility to protect its female workforce from male nonsense, in my submission, that is probably the lightest penalty, as Mr Salvati said, that he could conceivably impose. On the figures that I've done, based on what we've had from payroll but we'll have all this corrected, the actual penalty over 12 months was $1,928."

…

"In any event, given the choice between termination of employment and losing less than $50 a week, as we submit is the correct figure, it's pretty clear that he got off very lightly."

[58]  I am unable to conclude that the disciplinary penalty imposed by Council on Mr Higgin was unfair or unreasonable. Council said in effect that given that the 16 February warning did not produce the anticipated salutary effect, it was obligated to take stricter action and to impose a more serious sanction to ensure that an appropriate correction of Mr Higgin's behaviour was achieved. I can find no fault with Council's reasoning in this regard. Further, having arrived at a conclusion that a more severe sanction was required, I do not consider that Council acted harshly or unreasonably in imposing a temporary reduction in salary by two pay points.

Conclusion

[59]  The QSU submitted that while the matter should be decided on the balance of

probabilities the Commission should be guided in its application of this test by the

1

words of Dixon J in Brigginshaw :

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

[60] However Council advocated a different approach (T2-96):

"That is not the appropriate principle at all. That is turning the principle on its head. The employer has the right to deal with workplace infractions. An

employee who contends that there has – that the exercise of that right has

resulted in an unreasonable or unjust outcome has the capacity and the onus of demonstrating that the outcome has been unjust or unreasonable. They must show that the outcome was manifestly unfair or was reached in a manifestly unfair way. And the onus in that regard falls on the employee to persuade the Commission that the outcome in the circumstances was so plainly unjust and unfair that it warrants the Commission interfering with the capacity with a right of the employer to manage their own business in relation to such matters."

[61]    In respect to these submissions I proceed on the basis that the determination in this matter is to be made on a balance of probabilities finding on the question of whether the decisions taken by the Council in respect to the disciplinary process, the disciplinary findings and the disciplinary penalty, were, in all the circumstances of this case, fair and reasonable.

[62]   Mr Higgin received confirmation of his first written warning on 20 March 2012. Very soon thereafter on 19 April 2012, the second indiscretion is alleged to have occurred. Importantly, the nature of the offences, actual or alleged, are similar. The first incident involved the making of a number of inappropriate comments to female co-workers. The second incident also involved the making of inappropriate comments to a female co-worker. Both conversations included a level of sexual innuendo. It was also a significant consideration in both of these matters that Mr Higgin held a position of some seniority and that his behaviour compromised standards of leadership.

[63]   I confirm what I said in paragraph 40 of my decision of 18 March 2013 that it is difficult to conceive how Council could conclude the disciplinary process resulting from the second incident in isolation of the disciplinary finding and disciplinary penalty arrived at in response to the first incident. It follows that Council was entitled to determine a penalty for the second incident which took into account the fact that a similar offence had been committed a few months earlier.

[64]  Mr Salvati said that he accepted that Mr Higgin did not intend to cause physical harm to Ms Atkins during the car trip to West End. He also conceded that Mr Higgin's comments were open to interpretation and were suggestive rather than overtly threatening. These concessions in my view were appropriately made and it is important that Mr Higgin's offences be kept in perspective. In my view Council did keep the matter in perspective and took a measured and fair approach to the determination of Ms Atkins's complaint. I think the disciplinary penalty arrived at by Council is evidence of such a balanced approach.

[65]  After a close consideration of all the relevant facts and circumstances it is my view that the decisions taken by Council in its disciplinary findings and disciplinary penalty were reasonably open to it on the evidence. Accordingly I decline to grant the remedy sought by the applicant either in part or whole.

[66] The application is dismissed.

[67] I so order.
1 Briginshaw v Briginshaw (1938) 60 CLR 336