See v WorkCover Queensland

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION	See v WorkCover Queensland [2023] QIRC 133
PARTIES:	See, Ray (Appellant) v WorkCover Queensland (Respondent)
CASE NO:	PSA/2023/25
PROCEEDING:	Public Sector Appeal – Appeal against a disciplinary decision
DELIVERED ON:	16 May 2023
HEARD AT: MEMBER:	On the papers Pidgeon IC
ORDERS:	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – where the appellant is employed by the respondent as a Customer Support Representative – where the appellant has been found liable to discipline over a substantiated allegation regarding his conduct at a meeting – where the respondent has imposed a disciplinary penalty of a reduction in remuneration – where disciplinary decision fair and reasonable – decision confirmed
LEGISLATION AND OTHER INSTRUMENTS:	Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 91, 129, 131, 133, 289, 324 Public Service Act 2008 (Qld) ss 187, 188 (repealed) WorkCover Code of Conduct WorkCover Employing Office Certified Agreement 2018 cl 3

Reasons for Decision

Introduction

Mr Ray See (the Appellant) is employed by WorkCover Queensland (the Respondent) as a Customer Support Representative.
Mr See appeals a disciplinary decision of 1 February 2023 by Mr Danik Lucas, Head of Customer and Community Advisory at WorkCover Queensland (the decision-maker).
The disciplinary decision letter was preceded by a show cause process. The following allegation was found to be substantiated by the decision-maker in a disciplinary finding letter of 10 January 2023:
Allegation one
On 27 October 2022, you acted inappropriately during an employee update meeting facilitated by a representative of the People Group when you:
a)       Interrupted Holly Dennien, Head of People Operations on more than one occasion; and/or
b)       Stated words to the effect of:
i.‘… there appears to be no bargaining…’; and/or
ii.‘no, no, no’ in a tone described as aggressive; and/or
iii.‘WorkCover was forced to work remotely because of Covid, it wasn’t a choice’; and/or
iv.‘seeing ‘wellness’ makes your blood boil’; and/or
v.‘what’s the point’; and/or
vi.‘what would you know’; and/or
vii.‘You’re here late’ in a tone described as sarcastic; and/or
viii.You ‘… do not trust WorkCover’.
c)       Continued to discuss your personal circumstances after being asked to discuss these outside of the meeting.
d)       Made sarcastic noises; and/or

e) Exhibited expressions, including:
i.Sighing; and/or
ii.Rude; and/or
iii.Abrupt; and/or
iv.Disparaging.

The allegation relates to Mr See’s conduct during a meeting facilitated by Ms Holly Dennien, Head of People Operations, People Group, regarding a Certified Agreement. Mr See attended the meeting in person, with other attendees joining remotely.
The Respondent says that with respect to Mr See’s conduct at the meeting:
a.In his role, Mr See’s skills and knowledge requirements include well-developed interpersonal skills to develop rapport and interact with customers and others, demonstrated ability to work effectively with others and actively contribute to a team environment and the ability to meet service levels and team goals by establishing and maintaining good working relationships;
b.Mr See is required to demonstrate WorkCover’s five core capabilities that embody its values, including acting with integrity and demonstrating respect for others;

c.WorkCover’s Code of Conduct also applies to and must be upheld by Mr See;

d.The meeting was facilitated by Ms Dennien (Head of People, Operations, People Group) regarding a Certified Agreement. Mr See attended the meeting in person;

e.During the meeting, Mr See repeatedly interrupted Ms Dennien, including making comments and expressions as described above in the Allegation;

f.When Jane Stevens (Head of Government) entered the meeting room (in response to an on-line attendee’s concerns about Mr See’s conduct) and asked Mr See to ‘keep his comments to after the meeting’, he responded defensively stating ‘…you are late to this meeting’; and

g.Two other attendees contracted Ms Dennien after the meeting noting Mr See’s conduct was ‘offensive’ and ‘totally inappropriate’.

Based on his finding, the decision-maker determined with respect to Allegation One, Mr See was liable for disciplinary action. The decision-maker wrote:
Pursuant to section [1871(g)] of the Public Service Act 2008 (the Act), you are guilty of contravening, without a reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, with the relevant standard applying to you under the Code, specifically:
i.Principle 1: Integrity and impartiality which provides as follows:
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:
-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; and/or
-ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
Mr See was afforded a period of 14 days to show cause why disciplinary action should not be imposed.

Following the show cause process, the decision-maker determined to discipline the Appellant. Mr Lucas outlines the disciplinary action as follows:
… I have determined to impose the following disciplinary action under section 188(1) of the Act:
·        A reduction of remuneration from Grade 2 (08) to Grade 2 (07). Your performance will be reviewed in accordance with the annual performance review schedule.
·        Completion of the following courses through LinkedIn Learning, with a focus on self-awareness and emotional intelligence:
oCourse name: Developing your emotional intelligence (Instructor – Gemma Leigh Roberts).
oCourse name: Developing self-awareness (Instructor – Gemma Leigh Roberts).
·        Following completion of the course, discuss your learnings and practices you intend to implement from those learnings.
The decision-maker goes on to advise Mr See that the reduction in remuneration will take effect following the 21-calendar day appeal period unless Mr See advised at an earlier date of his intention not to appeal the decision. Further, annual performance reviews for all employees are scheduled for June/July 2023, and Mr See’s remuneration will be adjusted accordingly based on the rating he receives with effect from October 2023.
Mr See subsequently filed his appeal notice on 22 February 2023, within 21 days of receiving the disciplinary decision letter. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required timeframe.
I stayed the disciplinary action pending the outcome of the appeal on 23 February 2023.
For clarity, it does not appear that Mr See appeals the finding that the allegation was substantiated. To that extent, he accepts that the conduct occurred. What is under appeal in this matter is the disciplinary action imposed as set out at [7].
Is the Appellant entitled to appeal?
The Appellant filed his appeal before the commencement of the new Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time the disciplinary decision was made and when Mr See filed his appeal.

Section 324 of the PS Act relevantly provides:
(1)     This section applies if—
(a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
(b)      immediately before the commencement, the appeal had not been decided.
(2)     From the commencement, the appeal must be heard and decided under chapter 3, part 10.

Immediately before the commencement of the new PS Act, Mr See’s appeal had not been decided. I will therefore decide Mr See’s appeal under ch 3, pt 10 of the new PS Act.

Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(c) provides that an appeal may be made against a disciplinary decision.
Section 129 of the PS Act relevantly states:
129      Definitions for part
…
disciplinary decision means a decision under a disciplinary law to discipline—
(a)      a person (other than by termination of employment), including the action taken in disciplining the person; or
(b)      a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.

Section 133 of the PS Act explains who may appeal a disciplinary decision:

133 Who may appeal
…
(c) for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive

Appeal principles

Section 562B(3) of the Industrial Relations Act 2016 (the 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'.
Relevantly to this matter, s 562B(4) of the IR Act states that:
For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission —
(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b) may allow other evidence to be taken into account if the commission considers it appropriate.
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 sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
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.

Legislative framework and other instruments

Mr See was found liable for discipline under s 187(1)(g) of the Public Service Act 2008 (Qld). This has been replaced by s 91(1)(h) of the new PS Act. It provides:

91 Grounds for discipline
(1) A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
…
(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

The Respondent relies upon the WorkCover Code of Conduct. It relevantly provides:

Principle 1: Integrity and impartiality
Ethics Obligation
A WorkCover employee should seek to promote public confidence in the integrity of the public sector and WorkCover and should:
·        be committed to the highest ethical standard
·        accept and value their duty to provide advice which is objective, independent, apolitical and impartial
·        show respect towards all persons, including employees, clients and the general public
·        acknowledge the primacy of the public interest and undertake that any conflict of interest issue will be resolved or appropriately managed in favour of the public interest
·        be committed to honest, fair and respectful engagement with the community.
Required standards of conduct
…
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:
·        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
·        ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
·        ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
·        ensure our private conduct maintains the integrity of the public service and our ability to perform our duties
·        comply with legislative and/or policy obligations to report employee criminal charges and convictions.

Mr See’s reasons for appeal

Mr See says that the decision is unfair and unreasonable as the penalty of a reduction in remuneration is harsh and disproportionate to the substantiated allegation. Further, the Appellant says that the decision-maker relied on irrelevant considerations and ignored relevant considerations in deciding the disciplinary action.
The Appellant contends that the decision is harsh for the following reasons:
·The reduction in pay is permanent rather than temporary and will result in long-term disadvantage to the Appellant’s wages and superannuation contributions.
·Mr See says he is the sole provider for his family as his wife is a full-time carer for their two children who have ongoing needs. He says the long-term impacts of the penalty will impact their lives significantly.
·If the disciplinary outcome impacts the Appellant’s annual performance review in June/July, the WorkCover Employing Office Certified Agreement 2018 allows the Respondent to reduce the Appellant’s pay point by one to three pay points. Over 12 months, this would set the Appellant’s remuneration behind by at least one increment.
Mr See says the harshness caused could be ameliorated by applying the reduction across a specified period of time, such as a year. Alternatively, he says a monetary penalty rather than a reduction in pay point would be less harsh.
The Appellant contends that the penalty is not proportionate to the allegations for the following reasons:
·The decision-maker misinterpreted the Appellant’s request for a proportionate penalty in his show cause response as a contention that no inappropriateness occurred.
·The decision-maker made the decision on the basis that the allegations span multiple instances. Rather, the allegation refers to multiple instances during one event. It is therefore not proportionate to provide the same penalty for one event as another employee might receive for multiple events.
·The decision-maker has not considered Mr See’s history of employment and the likelihood of the behaviour being a ‘one off’.
The Appellant further contends that the Respondent relied on irrelevant considerations in determining the penalty, including that the Appellant failed to engage with the employer regarding individual matters raised at the relevant meeting. The decision-maker considered a new allegation that Mr See spoke about WorkCover negatively when responding to the show cause document.
Finally, Mr See says the decision-maker ignored a relevant consideration, namely that Mr See has a good history as an employee with the Respondent.
For these reasons, the Appellant seeks that the decision be substituted with another decision, namely:
a. A reprimand and completion of the relevant courses; or
b. A one off monetary penalty and completion of the relevant courses; or

c. A reprimand and completion of the relevant courses, with an acknowledgement that this outcome may impact future progression.

Respondent's submissions

The Respondent says the decision to impose the disciplinary penalty was fair and reasonable as:
·Mr See’s conduct departed from the expectations of him as an employee of WorkCover.
·Mr See’s inappropriate comments and expressions continued after he was specifically asked to stop.

·The decision-maker determined that it was not necessary for Mr See’s conduct to involve swearing or threats for it to be considered inappropriate.

·Mr See had completed compliance modules focused on WorkCover’s Code of Conduct.

·Mr See was well aware of the expected level of performance and conduct given the duration of his service.

·Mr See has continued to focus on his view that WorkCover has failed to support him.

·The Respondent holds concerns for Mr See’s ability to modify his behaviour in future.

·The conduct was not a one off. Mr See disparaged WorkCover in his show cause response, he did not raise his concerns in the appropriate forum, and the impact caused to Mr See was considered by the decision-maker.

The Respondent says that the meeting on 27 October 2022 was not the first occasion on which Mr See had been spoken with about how he conducts himself. The Respondent says that on 23 August 2022, just over two months before the conduct subject of this disciplinary decision, Mr See was issued with a letter of warning (non-disciplinary), which resulted from the following actions during a conversation with a claimant on 14 July 2022:
i.provided support to a claimant despite a conflict of interest being identified;
ii.spoke poorly of WorkCover and his colleagues (in particular stating ‘I am not in the claims area so I can’t help you past here, but in all honesty… I think they have done a terrible job… The system has let you down’ and ‘… someone has closed the claim so it’s one less that they have to do’; and
iii.failed to accurately record the content of the conversation.
The Respondent says that in the letter of warning, Mr See was warned that if future instances of similar conduct occurred, the non-disciplinary warning may be taken into consideration in determining how the matter will be dealt with. The Respondent says that Mr See was also directed to complete training by 31 August 2022.
With regard to the conduct in the 27 October 2022 meeting and with reference to Mr See’s show cause response, the Respondent says, ‘it is clear that notwithstanding the warning, Mr See has continued to demonstrate limited insight or self-reflection regarding his actions.’ The Respondent says that Mr See does not appear to accept that his conduct offended Ms Dennien or Ms Stevens, but rather he maintains it was their ‘perception’. The Respondent says it is also important to note that three other attendees at the meeting raised concerns with Mr See’s conduct.
The Respondent says that the decision-maker acknowledged Mr See’s previous ‘effective’ performance rating, however, the expectations regarding Mr See’s conduct apply at all times.
The Respondent says that in determining the disciplinary penalty, the decision-maker acknowledged and carefully considered the impacts the proposed disciplinary action would have on Mr See, and in particular the impacts on his family, noting his submissions about the impact on his financial circumstances. The Respondent says that following these considerations, the decision-maker decided to implement disciplinary action less onerous than that originally proposed, noting that the original proposal was a reduction of two pay points. The Respondent says that the disciplinary action will have a financial impact on Mr See of approximately $54.04 per fortnight.

Further, the Respondent says that the discipline action is commensurate to Mr See’s substantiated conduct and is confirmation of its position that the conduct will not be tolerated.
The Respondent submits that Mr See’s proposed disciplinary action involving a reprimand or one-off monetary penalty and the completion of relevant courses would not adequately address the seriousness of the conduct.
In response to Mr See’s ground of appeal that the reduction in pay point is a ‘permanent, unbound reduction’, the Respondent notes that annual performance reviews occur annually in around June/July and that Mr See’s salary may remain the same if rated as ‘needs improvement’, increase by two pay points if rated as ‘effective’ or increase by three pay points if rated as ‘superior’.

Mr See’s submissions

Mr See submits that the disciplinary action to be imposed is disproportionate to his conduct and that this results in the decision being unreasonable.
Mr See says that the Respondent has failed to take into account the context of the meeting on 27 October 2022, which was a ‘consultative meeting in which employees raise concerns and seek information about changes.’ Mr See says that this alters the seriousness of the breaches of the Code of Conduct.
Mr See says that the Respondent’s description of the meeting as an ‘employee update’ fails to account for the consultative nature of the meeting. Mr See also says that the position of the Respondent is that it was not only his conduct that was inappropriate but also the content of the discussion. Mr See says that he is concerned that both the content of his statements and his inappropriate behaviours have been considered breaches of the Code of Conduct.
With regard to the matter which resulted in Mr See receiving a non-disciplinary warning, Mr See says that this conduct was ‘significantly different’ to the conduct involved in the current matter. Mr See says that conduct involved discussions he had with a third-party client of the Respondent, whereas the current conduct involves discussions in the workplace and at an internal consultation meeting.
Mr See says that there is ‘little to no significant overlap’ in the allegations raised in both instances but the Respondent appears to link the two on the basis of him speaking negatively in relation to WorkCover. Mr See says that where the conduct in relation to the two matters is significantly different, the weight the Respondent placed on this point in determining the disciplinary action to impose is harsh and unreasonable.
With regard to the Respondent’s submission that Mr See’s response to the show cause notice involves continuing expression of negative views about WorkCover, Mr See says that ‘information provided in response to a show cause penalty document that truthfully outlines an employee’s version of events should not be subject to disciplinary action’.
Mr See says that the effect of the approach taken by the decision-maker is that ‘no employee is able to raise concerns about their employer either in a public forum or a private one’.
Mr See submits that while the Code of Conduct requires employees to communicate in an appropriate manner, it does not mandate that an employee never say anything negative about their employer, rather, it mandates that concerns should not be aired publicly or call the public service into disrepute. The Appellant says it is difficult to see how a response to a show cause notice could result in a breach of the Code of Conduct.
Mr See disputes the Respondent’s submission that he has not accepted that the conduct during the meeting offended Ms Dennien or Ms Stevens. Mr See says that he has offered to apologise to both Ms Dennien and Ms Stevens. Mr See says that his statements in the show cause response have been incorrectly interpreted by the decision-maker and appear to be considered ‘a third instance of “similar conduct”’ by the Respondent.
With regard to the impact of the drop in increment to his remuneration, Mr See says that there is a clear difference in the seriousness of a penalty that is bound by a year, such as a reduction in pay point for 12 months, and a penalty that does not have that boundary. Mr See says that the entitlements in the enterprise bargaining agreement do not alter the impact of the decision of the Respondent nor the permanent nature of the reduction in increment.
Mr See suggests that there is a ‘real possibility that the decision of the Respondent will result in more than one penalty’ as the disciplinary process may be brought up in the annual review process and prevent Mr See from progressing.
Mr See says that the decision not to place a time limit on the reduction in salary may mean that his salary is impacted for years and that the ‘potential for this disciplinary action to impact the Appellant multiple times’ makes the decision harsh and unreasonable.
Consideration

Mr See does not appeal the disciplinary finding which gives rise to disciplinary action. Therefore the focus of this appeal is on whether the disciplinary decision was fair and reasonable. In particular, I note that an appeal of this nature does not involve me considering the matter afresh and determining what disciplinary action I would have imposed, rather whether it was reasonably open to the decision-maker to impose the disciplinary action of a reduction in remuneration.

Mr See has set out the reasons he believes the reduction in pay point is harsh, unfair and unreasonable. I will approach my consideration of this matter by addressing the grounds upon which Mr See says the decision was unfair and reasonable.

Appeal Ground: Financial impact of penalty

I have considered Mr See’s ground of appeal regarding the significant impact of the proposed penalty. Mr See raised this matter in his show cause response and as a result, the decision-maker determined to reduce Mr See’s remuneration by one pay point rather than two. I find that the decision-maker gave proper consideration to Mr See’s submissions regarding the financial impact of the penalty and adjusted the proposed disciplinary action as a result of those submissions. I accept that the financial penalty will have a financial impact on Mr See, however I do not find that this serves to make the decision unfair or unreasonable.
Appeal Ground: Proportionality of the penalty to the substantiated conduct; irrelevant considerations in determining penalty
That Mr See admits that his behaviour was inappropriate is evidenced by his decision to appeal only the disciplinary penalty and not the disciplinary finding.
Mr See says that the decision-maker appears to have treated the various elements set out in the particulars of the allegation as multiple events of inappropriate conduct rather than multiple instances during the one event. I disagree. It seems to me that the decision-maker placed focus on the fact that Mr See’s conduct in the meeting continued after he had been asked to take up his individual issues at a different time and after a more senior member of staff arrived, and attempted to intervene following other people present at the meeting raising issues with Mr See’s conduct. It appears clear that Mr See understood that attempts were being made to ask him to temper his behaviour and that he not only ignored such attempts but responded rudely and aggressively to these interventions. I accept that it was open to the Respondent to determine that Mr See’s recent completion of modules such as WorkCover’s Code of Conduct meant that he was aware of the expected level of performance and conduct expected of him.
Mr See says that the decision-maker has not taken into account his ‘history of employment’ and the ‘likely one-off nature of the allegations’. However, it appears that the employer did take into account his history, particularly the recent history involving a non-disciplinary warning to Mr See regarding his interaction with a customer. Mr See argues that there is no overlap between his conduct in speaking negatively about WorkCover to a client and the conduct at the consultative meeting. I accept that the non-disciplinary warning related to Mr See’s conduct with a client and to that extent was external communication rather than conduct at an internal meeting. However, I find it was open to the decision-maker to have regard to a recent intervention with Mr See in relation to his communication choices. I think it is also relevant that this non-disciplinary warning also resulted in a direction that Mr See engage with the Code of Conduct to remind himself of the expectations of him as a WorkCover employee and that such action was required to be undertaken by 31 August 2022.
I understand that Mr See thinks that irrelevant considerations were taken into account, being that he did not take up an opportunity to engage with the employer about his individual issues and that he spoke negatively about WorkCover in his show cause notice. While I understand the point Mr See makes, in that the focus should be on the conduct at the meeting of 27 October 2022, I also find that it was open to the decision-maker to have regard to all material available in determining whether a lesser penalty would be as likely to result in Mr See not conducting himself in a similar way again.
I accept that a show cause notice is an individual’s opportunity to put their version of events forward and that they should be able to do so in a robust manner given they are placed in a position of defending themself. However, it appears to me that in mounting his defence, Mr See argues that his behaviour was not as serious in circumstances where it occurred at an internal meeting; that the purpose of the meeting was consultation; and that he did not swear at anyone. I do not think that the decision-maker has treated Mr See’s show cause response submissions as a ‘third incident’, rather has considered them in the context of the level of remorse and insight Mr See has demonstrated. Mr See has every right to raise these arguments in defence of himself, however I also find that it was reasonable for the decision-maker to give weight to these submissions in determining the likelihood of Mr See conducting himself this way in the future.

Appeal Ground: The context of the meeting which was a ‘consultative meeting’

Mr See argues that the fact that his conduct occurred during a consultative meeting alters the seriousness of the breaches of the Code of Conduct. It does not. The Code of Conduct applies to all work-related conduct (and in some cases, conduct in a private capacity). Workplace consultation meetings are indeed a place where individuals should be able to express robust perspectives about the workplace and suggest solutions or changes which may address their concerns. However, such perspectives must be communicated in a way that complies with the Code of Conduct. To that extent, I do not think the Respondent was expecting things said by Mr See in the meeting to be positive or that it was the negative feedback he was providing that made the conduct inappropriate.
The particulars of the allegation, which are accepted by Mr See, clearly give rise to a finding of inappropriate behaviour in breach of the Code of Conduct. This is all the more so in circumstances where Mr See did not heed a request to follow up regarding his personal issues or perspectives at a later time and continued and where a manager entered the room to intervene, Mr See’s reaction to her was to comment that she was late to the meeting.
It can also be the case, that it is not the sentiment of the comments made by the individual but the words chosen and the way in which the message is delivered which gives rise to the breach of the relevant standard of conduct. I disagree with Mr See’s submission the disciplinary penalty means the Respondent believes that no employee is able to raise concerns about their employer either in a public forum or a private one. However, it is clear that WorkCover has an expectation that when such concerns are raised, this is done so in an appropriate and respectful manner.
In any case, the disciplinary finding has been made and was not appealed. If Mr See was of the view that the context of the meeting meant that the conduct was not serious enough to represent a breach of the Code of Conduct, it was open to him to appeal the disciplinary finding decision.
Appeal Ground: The reduction in pay point is a ‘permanent, unbounded reduction, not a temporary one’
I understand Mr See’s argument to be that in the event his annual performance review does not result in a rating of ‘effective’ or ‘superior’ at the mid-year performance review process, either this year, or in the future, the reduction in remuneration would be permanent. The Respondent says that Mr See’s performance will be reviewed notwithstanding the disciplinary process and that if he is to be rated as ‘effective’ or ‘superior’, his income will be increase per cl 3.2 of the Certified Agreement. In the event Mr See is rated as ‘Needs Improvement’, his pay point will remain the same.
To that extent, the reduction in remuneration is not permanent or unbound, but movement from the reduced level is reliant on the outcome of a performance review process. Mr See is concerned that this disciplinary process may be taken into account at his performance review, and that this will impact his salary progression. In circumstances where the reduction in salary has been imposed as a disciplinary action, it would be unfair for the conduct subject of the disciplinary matter to give rise to a further penalty by way of being taken into account in the performance review.
Practical effect of the disciplinary action
As I understand it, the reduction in one pay point was to be applied 21 days following 1 February 2023, unless Mr See indicated that he would not appeal the decision, in which case, the reduction in pay point would commence at the next pay cycle. Mr See was advised that if the mid-year performance review process resulted in an increase in his pay point, this would be implemented from October 2023, per the agreement.
In such circumstances, the pay reduction was to last approximately 8 months, in that any relevant incremental rise would be awarded in October 2023.
Mr See’s submissions indicate that, given the operation of the Agreement, in the event he is not rated as ‘effective’ or ‘superior’ at the mid-year review, his remuneration will be increased by one pay point ‘by default’. I note that this does not accord with the submissions of the Respondent who say that Mr See would receive no increment. A ‘default’ increase would see him return to his pre-disciplinary action pay level. This is what happens when a time-limited disciplinary action comes to an end. The employee returns to the position they were in prior to the action being imposed. However, in Mr See’s case, it appears that he retains the opportunity via the performance review to receive an increase of more than one pay point. I have already noted that it would be unfair for Mr See’s conduct at the 27 October 2022 meeting to be taken into account for the purposes of the annual performance review.
I am satisfied that due to the operation of the performance review based pay approach in cl 3 of the Agreement, the disciplinary action is not permanent or unbound. Though, I do note that the initial disciplinary action was to commence in late February 2023 and continue until October 2023, in the event that a performance review increase was applied. I placed a stay on that disciplinary action and with the release of this decision, the stay on the implementation of the disciplinary penalty will be lifted.
It is my view that the Respondent has envisaged a situation where the disciplinary penalty will be lifted following the annual performance review process. In such circumstances, I find that if Mr See does not receive a performance-based increase, he should receive a lift of one pay point taking him back to his position pre-disciplinary action.
It is a matter for the Respondent to consider the impact of that stay in determining the period of time the reduction in remuneration will remain in place. In the circumstances, I find that it would not be appropriate for the Respondent to impose the disciplinary penalty for a period longer than that commensurate with the period it originally envisaged the reduction in remuneration would be in place, being from late February 2023 until October 2023.
Conclusion

For the reasons set out above, I find that it was open to the decision-maker to impose the disciplinary action set out in [8]. In the event Mr See’s performance review does not result in an outcome of ‘effective’ or ‘superior’, the reduction in remuneration of one pay point should be removed at whatever time the Respondent had determined the performance review increase would be applied. I understand that initially, this appeared to be as per the annual timetable for performance review but that the stay imposed on the disciplinary action may mean that a different timeline is now required. This is a matter for the Respondent.
The decision of 1 February 2023 is confirmed. However the practical implementation of the disciplinary action should be guided by these reasons for decision.
Order
I make the following order:

1.Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

[2023] QIRC 133

16 May 2023