Smith v State of Queensland (Queensland Health)
[2023] QIRC 296
•13 October 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Smith v State of Queensland (Queensland Health) [2023] QIRC 296 |
PARTIES: | Smith, Paul v State of Queensland (Queensland Health) |
CASE NO.: | TD/2021/98 |
PROCEEDING: | Application for reinstatement |
HEARING DATES: DELIVERED ON: | 27, 28, February 2023, 1, 2 and 3 March 2023 and 18 August 2023 13 October 2023 |
DATES OF FINAL WRITTEN SUBMISSIONS: | Applicant's written submissions filed on 9 June 2023, written submissions in reply filed on 7 July 2023, further written submissions filed on 1 September 2023 and further written submissions in reply filed on 20 September 2023 Respondent's written submissions filed on 30 June 2023 and further written submissions filed on 15 September 2023 |
MEMBER: HEARD AT: | Merrell DP Brisbane |
ORDERS: | The Directions Orders contained in paragraph [400] of these reasons for decision. |
| CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – Applicant employed by the Respondent in the Gold Coast Hospital and Health Service – Applicant attended work-related social function – three allegations that the Applicant, while at the function, contravened cl 1.5 a. of the Code of Conduct for the Queensland Public Service by failing to treat a work colleague and a member of the public with courtesy and respect – external investigation concluded that the allegations were capable of being substantiated – disciplinary process found that the three allegations were substantiated – Applicant's employment terminated – Applicant applied for reinstatement – whether Applicant's dismissal harsh, unjust or unreasonable – two of the three allegations substantiated on the evidence – Applicant's dismissal was unreasonable because dismissal was disproportionate to the grounds upon which the Applicant was liable for discipline – whether Applicant should be provided a remedy under the Industrial Relations Act 2016 – reinstatement impractical because Applicant's position was abolished – Applicant's re-employment not impracticable – further evidence needed as to whether the Applicant can be re-employed pursuant to s 321 of the Industrial Relations Act 2016 STATUTES – SUBORDINATE LEGISLATION – CONSTRUCTION – RELEVANT PRINCIPLES – ORDINARY AND GRAMMATICAL CONSTRUCTION – whether the Code of Conduct for the Queensland Public Service is a statutory instrument within the meaning of the Statutory Instruments Act 1992 –construction of cl 1.5 a. of the Code of Conduct for the Queensland Public Service – meaning of 'members of the public' – construction based on the text of the Code of Conduct for the Queensland Public Service |
LEGISLATION: | Acts Interpretation Act 1954, s 14A Code of Conduct for the Queensland Public Service, cl 1.5 Discipline: Directive 14/20, cl 8.3 Discipline (Directive 05/23), cl 9.3 Industrial Relations Act 2016, s 316, s 319, s 320, s 321 and s 322 Public Service Act 2008, s 137, s 187, s 188 and s 190 Public Sector Act 2022, s 91 Public Sector Ethics Act 1994, s 6, s 10 and s 12A Statutory Instruments Act 1992, s 7, s 14 and sch 1 |
CASES: | Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 028 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Browne v Dunn (1894) 6 R 67 Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 Camden v McKenzie [2007] QCA 136; (2008) 1 Qd R 39 Carey v President of the Industrial Court of Queensland [2004] QCA 62; (2004) 2 Qd R 359 Etherton v Public Service Board [1983] 3 NSWLR 297 FederalCommissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 Fox v Percy [2003] HCA 22; (2003) 214 CLR 118 G v H [1994] HCA 48; (1994) 181 CLR 387 Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258 Lam v Gold Coast Hospital and Health Service [2021] ICQ 010 Manescu v Baker Hughes Australia Pty Ltd [2022] WASCA 94 Marchant v Workers' Compensation Regulator [2023] QIRC 203 Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170 Nesbit v State of Queensland [2021] ICQ 005 Nicholson v Heaven and Earth Gallery Pty Ltd [1994] IRCA 43; (1994) 57 IR 50 Queensland Teachers Union of Employees v Department of Education [2000] QIC 65; (2000) 165 QGIG 767 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex Parte Lam [2003] HCA 6; (2003) 214 CLR 1 Re Mullen [1995] 2 Qd R 608 Robbins v Harness Racing Board [1984] VR 641 R v A2 [2019] HCA 35; (2019) 269 CLR 507 Rush v Nationwide News Pty Ltd (No 7) [2019] FCA 496 Smith v State of Queensland (Queensland Health) and Anor [2021] QIRC 340 Stark v P&O Resorts (Heron) Island (1993) 144 QGIG 914 SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 Thinh Nguyen and another v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australian Chapter [2014] FWCFB 7198 Transport Workers’ Union of Australia v Qantas Airways Limited [2021] FCA 873; (2021) 308 IR 244 White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041 |
| TEXT CITED: | JRS Forbes, Justice in Tribunals (The Federation Press, 2002) |
| APPEARANCES: | Mr T. Spence of Counsel, instructed by Mr N. Saines of Saines Legal for the Applicant. Ms A. Freeman of Counsel instructed by Ms L. Trickey of McCullough Robertson for the Respondent. |
Reasons for Decision
Introduction
Mr Paul Smith was employed by the State of Queensland, through Queensland Health ('the Department'), in the Gold Coast Hospital and Health Service ('the Health Service'). Mr Smith was employed in the position of Service and Data Manager, classification AO5. Mr Smith was so employed from 29 June 2020.
Mr Smith was dismissed from his employment, effective 25 October 2021, by the Chief Executive of the Health Service, Mr Ron Calvert. This was because of Mr Smith's substantiated conduct.[1] The substantiated conduct did not occur during Mr Smith's ordinary hours of work in his position; it occurred at a Health Service sponsored event that took place on the evening of 4 December 2020 at the Gold Coast Convention and Exhibition Centre ('the Centre') known as the Golden Gala Awards ('the Gala'). The Gala was an awards night sponsored by the Gold Coast Hospital Foundation.
[1] Exhibit 1, exhibit 'PS-14', page 156 of the Court Book ('the CB').
Following the Gala, and complaints made about Mr Smith's alleged conduct, an external investigation was undertaken. A disciplinary process followed.
In his letter to Mr Smith dismissing him, Mr Calvert stated that he was reasonably satisfied Mr Smith was guilty of misconduct within the meaning of s 187(1)(b) of the Public Service Act 2008 ('the PS Act').[2] This stated disciplinary finding was contrary to the actual disciplinary finding, made in the course of the disciplinary process, by Ms Hannah Bloch, Executive Director, People and Corporate Services ('Ms Bloch'). Ms Bloch found that there were grounds to discipline Mr Smith pursuant to s 187(1)(g) of the PS Act.[3]
[2] Exhibit 1, exhibit 'PS-14', page 156 of the CB.
[3] Exhibit 10, exhibit 'HB8', page 815 of the CB. Mr Calvert conceded the disciplinary finding of misconduct, to which he referred in his letter to Mr Smith, was in error: Exhibit 24, para. 30, page 1330 of the CB. Mr Smith accepts that Ms Bloch's disciplinary finding decision is the correct disciplinary finding: Mr Smith's written submissions filed on 9 June 2023 ('Mr Smith's submissions'), para. 4.
There were three substantiated allegations. Ms Bloch found that during the Gala, Mr Smith failed to treat two people with courtesy and respect as required by cl 1.5 a. of the Code of Conduct for the Queensland Public Service ('the Code'), namely:
·Mr Smith failed to treat Ms Emma Mockler, a co-worker, with courtesy and respect when he engaged her in a heated conversation and after repeated requests to move away from Ms Mockler, he remained in her presence making her feel intimidated ('Allegation One' or 'the first substantiated allegation');[4]
·Mr Smith failed to treat Ms Cameal Bekkeli, a member of the public,[5] with courtesy and respect when he engaged her in an aggressive manner after ignoring repeated requests to move away from Ms Mockler ('Allegation Two' or 'the second substantiated allegation');[6] and
·Mr Smith failed to treat Ms Mockler, a co-worker, with courtesy and respect when he engaged her in an aggressive manner in the passage of the Centre after she (Ms Mockler) stepped in front of him and Ms Bekkeli ('Allegation Three' or 'the third substantiated allegation').[7]
[4] Exhibit 10, exhibit 'HB8', pages 811-813 of the CB.
[5] Who was the wife of another employee.
[6] Exhibit 10, exhibit 'HB8', pages 813-814 of the CB.
[7] Exhibit 10, exhibit 'HB8', page 814 of the CB.
By application filed on 15 November 2021, Mr Smith, pursuant to ch 8, pt 2 of the Industrial Relations Act 2016 ('the Act'), applied for reinstatement. Mr Smith contends that his dismissal was unfair in that it was harsh, unjust or unreasonable. The remedy Mr Smith seeks is re-employment to a position, classification AO5, together with other orders compensating him for lost remuneration and maintaining his continuity of service. The Department resists Mr Smith's application, both as to whether his dismissal was harsh, unjust or unreasonable and, if it was, as to the remedy he seeks.
In my view, having regard to the evidence, and to the submissions of the parties, the questions for my determination are:
·did cl 1.5 a. of the Code apply to Mr Smith at the Gala, such that he was obliged to treat Ms Mockler and Ms Bekkeli with courtesy and respect?
·were the three allegations fairly and properly drawn such that Mr Smith was afforded procedural fairness?
·on the evidence, did Mr Smith engage in the conduct the subject of the three substantiated allegations?
·on the evidence, was the conduct in which Mr Smith did engage, conduct that contravened, without reasonable excuse, cl 1.5 a. of the Code in a way that was sufficiently serious to warrant disciplinary action pursuant to s 187(1)(g) of the PS Act?
·was Mr Smith's dismissal harsh, unjust or unreasonable having regard to the matters referred to in s 320 of the Act? and, if so
·should the Commission make an order under s 321 or s 322 of the Act?
For the reasons that follow, I find that:
·Mr Smith's dismissal was unfair, within the meaning of s 316 of the Act, because it was unreasonable;
·Mr Smith's re-employment is not impracticable; and
·I will further hear the parties about other positions, at the AO5 classification, that the Department has available.
The Industrial Relations Act 2016 and the applicable legal principles
Section 316 of the Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted. Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[8]
[8] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410 ('Byrne'), 465 (McHugh and Gummow JJ).
In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[9]
[9] Ibid.
Section 320 of the Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
·whether the employee was notified of the reason for dismissal;
·whether the dismissal related to:
- the operational requirements of the employer's undertaking, establishment or service; or
- the employee's conduct, capacity or performance; and
·if the dismissal related to the employee's conduct, capacity or performance:
- whether the employee had been warned about the conduct, capacity or performance; or
- whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
·any other matters the Commission considers relevant.
In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[10]
[10] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (President Hall) ('Walker').
If it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the Act.[11]
[11] Ibid 259.
In matters involving dismissal for misconduct, the correct approach was confirmed in Lam v Gold Coast Hospital and Health Service ('Lam') [12] where Davis J, President relevantly stated:
[21] It is sufficient for me to observe that the Deputy President correctly approached his task by reference to the following:
1. The application to the QIRC is not an appeal from the decision to dismiss.
2. The QIRC must hear all the evidence relevant to the question of whether the dismissal was unfair and to make a determination on that issue.
3. The QIRC must determine whether the four allegations are proved on the balance of probabilities applying the Briginshaw principles.
4. If the allegations are proved, the QIRC must determine whether those allegations amount to misconduct as defined in the PS Act.
5. The QIRC must then apply Chapter 8, Part 2 of the IR Act and determine whether the dismissal was unfair.[13]
[12] Lam v Gold Coast Hospital and Health Service [2021] ICQ 010.
[13] Citations omitted.
In my view, leaving aside the fact that Lam was a case that involved misconduct within the meaning of the PS Act, the above principles generally apply to an application for reinstatement where, as in the present case, the allegation is that a public service employee contravened, without reasonable excuse, a relevant standard of conduct contained in the Code, contrary to s 187(1)(g) of the PS Act.
I say generally, because:
·in White v State of Queensland (Central Queensland Hospital and Health Service) ('White'),[14] Deputy President O'Connor[15] stated that while it is accepted that an applicant carries the overall onus of proving that their dismissal was harsh, unjust or unreasonable, in cases involving a dismissal on grounds which allege serious or criminal misconduct, the onus of proof shifts from the applicant employee to the respondent employer (in relation to proving that serious or criminal misconduct); and
·in Alfred v State of Queensland (Department of Justice and Attorney General) ('Alfred'),[16] Deputy President O'Connor:
- stated while the standard of proof to be applied is on the balance of probabilities, it is not the case that a high degree of satisfaction as to the evidence, as described in Briginshaw v Briginshaw ('Briginshaw')[17] is required where an employee is dismissed for a contravention of the Code; and
- in so doing, his Honour rejected an argument from the applicant that the principle in Briginshaw applied in that case because the consequence for the applicant, his dismissal, was grave.[18]
[14] [2017] QIRC 041 ('White') [5].
[15] As his Honour then was.
[16] [2016] QIRC 028 ('Alfred') [9].
[17] [1938] HCA 34; (1938) 60 CLR 336 ('Briginshaw') 361-362 (Dixon J).
[18] Alfred (n 16) [8].
In relation to the question of the onus of proof about the alleged conduct, Mr Smith was not dismissed for misconduct within the meaning of the PS Act.[19] Mr Smith was dismissed for contravening, without reasonable excuse, cl 1.5 a. of the Code in a way that was sufficiently serious to warrant disciplinary action. The cases where the onus of proof shifts to an employer to prove certain conduct are, in my opinion, limited to misconduct[20] or criminal conduct.[21]
[19] Ms Bloch's evidence was that she considered whether Mr Smith was liable for misconduct within the meaning of s 187(1)(b) of the Public Service Act 2008, but decided against that conclusion: Exhibit 10, para. 41, page 641 of the CB.
[20] Walker (n 10) 259 (President Hall).
[21] Stark v P&O Resorts (Heron) Island (1993) 144 QGIG 914, 916 (Chief Commissioner Hall).
By comparison to cases involving misconduct, this is not a case where the substantiated allegations against Mr Smith involved serious wrong doing on his part to the extent that the onus of proving those allegations, on the balance of probabilities, shifts to the Department. The substantiated allegations, or the disciplinary findings of fact, upon which Mr Smith was actually dismissed, were that he failed to treat two people with courtesy and respect, contrary to cl 1.5 a. of the Code.[22]
[22] Exhibit 10, exhibit 'HB8' pages 811-814 of the CB.
As to the principle in Briginshaw,[23] that principle does not go to the standard of proof but to the standard of evidence, such that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of fraudulent or criminal conduct.[24]
[23] Briginshaw (n 17).
[24] Neat Holdings v Karajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 171 (Mason CJ, Brennan, Deane and Gaudron JJ).
Mr Smith submitted that the principle in Briginshaw applies in terms of whether or not the strength of the evidence establishes that he engaged in the conduct the subject of the three substantiated allegations.[25] The Department submitted that the onus was on Mr Smith to prove that his dismissal was harsh, unjust or unreasonable on the balance of probabilities '… applying the principles espoused in Briginshaw'.[26]
[25] Mr Smith's submissions, paras. 82 and 91 in relation to the first substantiated allegation, para. 112 in relation to the second substantiated allegation, and para. 135 in relation to the third substantiated allegation.
[26] The written submissions of the State of Queensland (Queensland Health) filed on 30 June 2023, ('the Department's submissions'), para. 17.
However, in G v H,[27] Deane, Dawson and Gaudron JJ[28] relevantly stated:
It has been clear since the decision in Briginshaw v Briginshaw that in civil cases the standard of proof is on the balance of probabilities, with due regard being had to the nature of the issue involved so that “[t]he 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”. Thus, if there is an issue of “importance and gravity”, to use the words of the trial judge, due regard must be had to its important and grave nature.
Not every case involves issues of importance and gravity in the Briginshaw v Briginshawsense. The need to proceed with caution is clear if, for example, there is an allegation of fraud or an allegation of criminal or moral wrongdoing, as in Briginshaw v Briginshaw where the allegation was adultery by a married woman, an allegation involving serious legal consequences when that case was decided.[29]
[27] [1994] HCA 48; (1994) 181 CLR 387.
[28] Ibid 399.
[29] Citations omitted.
While the consequence for Mr Smith arising from the substantiated allegations has been grave, namely his dismissal, this is not a case where the substantiated allegations against Mr Smith involved serious wrong doing on his part. In the absence of full argument on this point, I will follow Alfred. I will not accept that the principle in Briginshaw applies in terms of whether or not the strength of the evidence establishes that Mr Smith contravened cl 1.5 a. of the Code.
The parties' cases in outline
In summary, Mr Smith submits that:
·in relation to the first substantiated allegation:
- his alleged conduct was mischaracterised and exaggerated by Ms Mockler and Ms Bekkeli;
- he used no profane language, engaged in no physical violence and made no threats of violence; and
- it was Ms Mockler who acted in an unnecessarily aggressive manner towards him, used profane language and made a threat of violence;[30]
[30] Mr Smith's submissions, para. 7. a.
·in relation to the second substantiated allegation:
- his alleged conduct was mischaracterised and exaggerated by Ms Bekkeli;
- he used no profane language, engaged in no physical violence and made no threats of violence; and
- it was Ms Bekkeli who acted in an unnecessarily aggressive manner towards him, calling him a '… low life scum bag' and telling him to '… fuck off';[31]
[31] Mr Smith's submissions, para. 7. b.
·in relation to the third substantiated allegation:
- Ms Mockler actively chose to engage with him by moving approximately five metres across the Centre foyer to place herself between him and Ms Bekkeli; and
- he used no profane language, engaged in no physical violence and made no threats of violence;[32]
[32] Mr Smith's submissions, para. 7. c.
·further, or in the alternative:
- he was denied procedural fairness during the investigation into the incidents at the Gala because:
§the complaints against him were initiated by Ms Tracey Brook, at that time employed in the Health Service as Director, Transformation Office, who was motivated by significant prejudice against him; and
§the evidence given by Ms Mockler, Ms Bekkeli and Mr Roy Bekkeli – Ms Bekkeli's husband who was present at the Gala – was exaggerated and mischaracterised his conduct by reason of their prejudiced opinions of him;[33] and
- his (alleged) conduct, if substantiated, was not serious enough to warrant his dismissal where:
§he was not suspended from his employment and continued to attend the workplace without incident between the date of the Gala and his dismissal; and
§he undertook appropriate training and demonstrated personal insight to ensure that the conduct on 4 December 2020 was not repeated; [34] and
·he should be re-employed in an AO5 role with the Health Service, where his continuity of service is maintained and that he is compensated for his loss by reason of his dismissal.[35]
[33] Mr Smith's submissions, para. 8. a.
[34] Mr Smith's submissions, para. 8. b.
[35] Mr Smith's submissions, para. 9.
The Department, in summary, contends that:
·Mr Smith's conduct, the subject of the three allegations, is substantiated on the evidence, both at the time of the disciplinary process and at the hearing of this matter;
·Mr Smith was afforded procedural fairness throughout the disciplinary process, which is not denied by Mr Smith;
·Mr Smith's dismissal was not disproportionate to the conduct so proved and his short length of service, such that the termination of his employment was not unfair;
·Mr Smith's reinstatement is not reasonably practicable as his position was abolished on 1 July 2022 as a result of organisational change, which is not disputed by Mr Smith;
·in the event that re-employment is considered by the Commission, it would not be practicable as there has been a complete loss of trust and confidence, such that Mr Smith's relationship with the Department is irretrievable;[36]
·Mr Smith's submission that he was denied procedural fairness during the external investigation should be rejected;[37] and
·the Commission should conclude that:
- Mr Smith did engage in the alleged conduct on 4 December 2020 at the Gala; and
- Mr Smith's conduct was in breach of the Code, which was sufficiently serious to warrant the disciplinary action of termination pursuant to section 187(l)(g) of the PS Act.[38]
[36] The Department's submissions, para. 25.
[37] The Department's submissions, para. 26.
[38] The Department's submissions, para. 27.
Relevant background
To appreciate the submissions made by the parties, and my approach to determining Mr Smith's application, it is convenient, at this point, to set out some of the background facts.
Mr Smith's separation from his wife and their mutual undertakings
During the period of Mr Smith's employment in the Health Service, his estranged wife, Ms Kathleen Smith, also worked in the Health Service. Ms Smith is still employed in the Health Service. Ms Smith has been employed in the Health Service since November 2014.[39] Ms Smith did not give evidence.
[39] Exhibit 16, para. 6.
Mr Smith and Ms Smith, after approximately 15 years of marriage, separated in February 2020.[40] They have two children.
[40] Exhibit 1, paras. 2 and 3.
On about 25 February 2020, Ms Smith made an application for a Protection Order under the Domestic and Family Violence Protection Act 2012 against Mr Smith. Mr Smith made a cross-application for a Protection Order against Ms Smith.[41] On 7 May 2020, Mr Smith and Ms Smith, without any admission of liability, mutually agreed to withdraw their applications for Protection Orders and they entered into a mutual undertaking, whereby they agreed, inter alia, '… not to approach each other within 100 metres', except in certain named circumstances ('the first mutual undertaking'). [42]
[41] Exhibit 1, para. 5.
[42] Exhibit 16, exhibit 'JR8', pages 522 and 523 of the CB.
On around 11 May 2020, Mr Smith applied for the position from which he was dismissed, namely, Service and Data Manager, classification AO5, Diagnostic and Sub-speciality Services ('the Service and Data Manager position').[43]
[43] Exhibit 16, para. 6.
Soon after the first mutual undertaking, on about 15 May 2020, Mr Smith proposed amendments to it, including that they were both allowed to be within 100 metres of each other – but keeping 1.5 metres social distancing – at schools, churches and sporting events.[44] Mr Smith accepted that this proposed amendment did not allow for him and Ms Smith to be within 100 metres of each other at a workplace ('the proposed amendment').[45] In cross-examination, Mr Smith accepted that the proposed amendment was '… the state of play' between him and Ms Smith at that time and at the time when he started working at the Health Service. From this evidence, I infer that the proposed amendment was accepted by Ms Smith on or about 15 May 2020 ('the second mutual undertaking').[46]
[44] Exhibit 16, exhibit 'JR13', page 547 of the CB.
[45] T 1-16, ll 4-6.
[46] T 1-16, ll 16-21.
The hand sanitizer allegation made by Mr Smith against Ms Smith
By email dated 1 June 2020, Mr Smith sent an email to Mr Calvert, '… as a whistleblower who is afforded protection under the Whistleblowers Protection Act 1994' alleging that Ms Smith has stolen '… Microshield hand sanitiser and numerous office supplies such as notebooks, pens, sticky notes and folders for her personal use at home'. Mr Smith described Ms Smith's alleged conduct as '… a serious example of misconduct worthy of investigation in confidence' and that it was not '… an isolated incident and it has been happening over several years'.[47] Mr Smith attached, to that email, photographs that he had taken when they were still together,[48] '… of the Microshield hand sanitiser that she has in her current and usual place of residence'[49] ('the hand sanitiser allegation').
[47] Exhibit 24, exhibit 'RC1', page 1333 of the CB.
[48] T 1-12, l 6.
[49] Exhibit 24, exhibit 'RC1', page 1333 of the CB.
By letter dated 19 November 2020, Mr Mark Luchs, Acting Chief Digital Officer, Transformation and Digital Services, advised Mr Smith that the Health Service's Matters Assessed Committee ('the MAC') determined that the hand sanitiser allegation met the standards of suspected corrupt conduct, level 3, which did not require the allegation to be reported to the Crime and Corruption Commission, but that the relevant management team had commenced local actions. Mr Smith was further informed that '… appropriate action has been taken to deal with the matter'.[50]
[50] Exhibit 21, exhibit 'GB-3', page 857 of the CB.
In cross-examination, Mr Smith disagreed that by sending the email to Mr Calvert, he was trying to cause problems for Ms Smith at her place of work.[51]
[51] T 1-13, ll 28-31.
Mr Smith's employment interview and the commencement of his employment in the Health Service
On 4 June 2020, Mr Smith was interviewed for the Service and Data Manager position, but, in the course of the interview, he did not inform the interviewers:
·that Ms Smith worked in the Health Service;[52]
·of the first mutual undertaking;[53] and
·of the second mutual undertaking.[54]
[52] T 1-14, ll 9-11.
[53] T 1-14, ll 13-17.
[54] T 1-16, ll 23-26.
On 29 June 2020, Mr Smith commenced full-time employment in the Health Service.[55]
[55] Exhibit 1, para. 7.
Mr Smith's evidence was that, at that time, he did not inform the Health Service of the second mutual undertaking because he understood he did not have to do so because it was a civil matter.[56]
[56] T 1-18, ll 34-42.
Ms Smith worked at the same location as Mr Smith, being the Gold Coast University Hospital in Southport. Ms Smith worked in the Digital Engagement Team. Mr Smith worked in Diagnostic and Sub-speciality Services. Mr Smith's evidence was that Ms Smith worked in a building (the Cohort Building) which was approximately 900 metres from the building in which Mr Smith worked in the Hospital.[57]
[57] T 1-16, ll 28-31.
Mr Smith was trained in the Code when he commenced employment with the Health Service.[58]
[58] T 1-9, ll 4-23.
On about 12 July 2020, a copy of the first mutual understanding was provided to Ms Jacquelynne Roberts, Human Resources Business Partner of the Health Service, by an email chain from other employees of the Health Service, including Ms Tracey Brook, at that time, Director of Digital Engagement. Ms Brook had received the copy of the first mutual undertaking from Ms Smith.[59]
[59] Exhibit 16, exhibit 'JR8', pages 521-523 of the CB.
By email sent on 22 July 2020 from Mr Smith to Ms Roberts, Mr Smith informed Ms Roberts of the second mutual undertaking.[60]
[60] Exhibit 16, exhibit 'JR8', page 545 of the CB.
Mr Smith's position involved him providing a high level of leadership to a team of people[61] and he was aware that his managerial behaviour set the tone for the conduct of all employees within the Health Service.[62]
[61] T 1-8, ll 43-44.
[62] T 1-9, ll 6-7.
Ms Brook's letter and the safety plan for Ms Smith in 2020
On 27 July 2020, Ms Brook sent a three page letter to Mr Calvert and Ms Bloch, entitled ' Not now, not ever: A manager's view of supporting staff affected by domestic and family violence' ('Ms Brook's letter').
Ms Brook's evidence was that she sent that letter because she was '… disappointed that Paul Smith was not required to declare, as part of the recruitment process, that he was unable to go within 100 metres of another GCHHS employee.' Ms Brook stated she '… was also disappointed that Kathleen no longer felt safe at work due to Paul's employment within GCHHS.'[63]
[63] Exhibit 20, para. 43.
In Ms Brook's letter, she set out information provided to her by Ms Smith about:
·her separation from Mr Smith;
·specific allegations Ms Smith made to her about Mr Smith's alleged behaviour towards her in respect of their separation; and
·as best as I understand it from the terms of Ms Brook's letter, the first mutual undertaking.[64]
[64] Exhibit 20, exhibit 'TAB-10', page 1264 of the CB.
Ms Brook then set out:
·her understanding of the impact these matters were having on Ms Smith at work; and
·what were, from her point of view, five current issues in the workplace, namely:
- that '… there is nothing in policy that says he has to declare his relationship to Kathleen or disclose the legal agreement he signed that outlines the conditions of the contract';
- there is now a complex situation to manage concerning Ms Smith's safety and that those in Ms Smith's support network '… have to be careful about how they behave around her husband in case he feels he is being treated unfairly and puts in a complaint';
- what was once Ms Smith's safe place '… isn't any more';
- Mr Smith's conflict of interest should have been declared and his failure to do so was a '… potential code of conduct breach'; and
- she (Ms Brook) had her own conflict of interest to declare in that if there were any further complaints about Ms Smith's behaviour, she (Ms Brook) would not be able to remain impartial in that she would be '… suspicious about the intent behind it'.[65]
[65] Exhibit 20, exhibit 'TAB-10', pages 1265-1266.
By email dated 28 July 2020, Ms Bloch responded to Ms Brook's letter by stating that she completely agreed that '… there are some fundamental gaps in the current policy framework' and that she was '…. so disappointed to hear it could be exploited in such a way as this case'. Ms Bloch also stated that she would '… chat to the team about our options and we are seeking some legal advice as well.' Ms Bloch further stated that if there was '… anything else we can do to support Kathleen please do not hesitate to let me know.'[66] Mr Calvert did not read Ms Brook's letter until it was brought to his attention for the purposes of him preparing his affidavit for this proceeding.[67]
[66] Exhibit 20, exhibit 'TAB-11', page 1268.
[67] Exhibit 24, para. 9.
Various meetings, email exchanges and communications, between representatives of the Health Service and Mr Smith, [68] and between representatives of the Health Service and Ms Smith,[69] occurred from about July 2020 until later in 2020 because the Health Service wanted to develop a safety plan for both Mr Smith and Ms Smith. As best as I understand the evidence, a safety plan had been developed for Ms Smith in about 2020,[70] although it is not clear if this was a workplace safety plan actually developed by the Health Service for Ms Smith or one that Ms Smith had developed herself with assistance from persons outside of the Health Service.[71]
[68] T 1-22, l 16 to T 1-27, l 4 and Exhibit 16, paras. 25-40.
[69] Exhibit 16, paras. 42-54.
[70] Exhibit 16, para. 44.
[71] Exhibit 16, paras. 44-53 and Exhibit 20, paras. 32-40.
Mr Smith did not see the need for a safety plan to be developed for him at that time (2020).[72]
[72] Exhibit 16, para. 41 and exhibit 'JR15', pages 557-558 of the CB.
The review of Mr Smith's Professional Development Plan regarding his communication style
In a letter dated 25 September 2020 from Ms Karlene Willcocks, Executive Director, Diagnostic and Sub-speciality Services, Mr Smith was provided with an opportunity to respond to concerns raised about his behaviour towards his subordinate employees. Mr Smith responded by letter dated 2 October 2020.[73]
[73] Exhibit 4.
By letter dated 17 November 2020, Ms Willcocks advised Mr Smith that she was of the view his '… communication style was perceived by the complainants as direct, imposing, uncaring and at times, arrogant' and that she was disappointed he had not reflected on his verbal and non-verbal communication style and how it impacts on others throughout '… this process'. In order to support Mr Smith to improve his communication and engagement style, Ms Willcocks recommended Ms Felicity Blainey, Administration Manager, review Mr Smith's Professional Development Plan as a priority to ensure that he was supported to '… improve your interpersonal communication'. Ms Willcocks further encouraged Mr Smith to actively participate in any training or development opportunities offered to him and to focus on how he could demonstrate sustained improvement in this area.[74]
[74] Exhibit 3.
The fraud allegation made by Mr Smith against Ms Smith
By work email sent on 30 November 2020, from Mr Smith to Mr Ronald Potts, the Health Service's Director of Statutory Compliance and Conduct, Mr Smith stated that:
·Ms Smith had initiated a vexatious domestic violence order on him, which was withdrawn in lieu of her agreeing to a mutual undertaking '… to which she placed orders on herself to be of good behaviour';
·his solicitor and his father reminded him of similar acts and similar facts '… which reflects the dishonest personal characteristics' his estranged wife '… has and which she will continue to demonstrate in her work and home life', namely:
- he had been made aware that Ms Smith '… fraudulently took leave' on a particular date while his daughter was in his care at his residence;
- Ms Smith took leave on a particular date so they could both attend mediation for the purpose of settling some parenting matters;
- on two particular dates, Ms Smith moved house, which once again had nothing to do with her '… DV narrative that she had already withdrew from court on the 07 May 2020'; and
- he believed Ms Smith '… has continued to use this DV narrative to her own advantage in the workplace, and this has been at the detriment of myself.'[75]
[75] Exhibit 21, exhibit 'GB-4', pages 859-860 of the CB.
Mr Smith then went on to state a number of other matters, including that:
·he had been the subject of an investigation because Ms Smith had stated she felt unsafe as a result of, as I understand it, the first mutual undertaking;
·she had deliberately provided misleading information to Human Resources;
·he received emails from Ms Smith on her Queensland Government email seeking money from him, he believed Ms Smith was using her position of authority to demand as such and he sought that the matter be investigated; and
·Ms Smith was dishonest and she was deceitful in that she was fraudulently taking leave to which she was not entitled and was '… speaking untruths to her manager and colleagues'.[76]
[76] Exhibit 21, exhibit 'GB-4', page 860 of the CB.
In cross-examination, Mr Smith disagreed that by sending the email to Mr Potts, he was trying to cause problems for Ms Smith in the workplace.[77]
[77] T 1-34, ll 16-17.
By email dated 16 December 2020 from Mr Potts, Mr Smith was advised that his complaint that Ms Smith had fraudulently taken leave on four particular dates had been assessed against the relevant leave records, and that the information suggested the leave was approved and taken for appropriate purposes, but that some further enquiries were still needed which would be carried out by the Workplace Relations Unit. Further Mr Smith was advised that the use of emails by Ms Smith was consistent with the Information Communication Technology policies and that he (Mr Potts) did not intend to process the matter further.[78]
[78] Exhibit 21, exhibit 'GB-5', page 863 of the CB.
The 2021 consent Protection Orders
On 17 May 2021, Protection Orders, made by consent between Mr Smith and Ms Smith and without admissions, were issued by the Southport Magistrates Court. They both agreed to be prohibited '… from following, approaching, approaching to be within 100 metres' of each other '...when at any place'[79] ('the 2021 consent Protection Orders').
[79] Exhibit 2, exhibit 'PS2-2', pages 214 and 215 of the CB.
Mr Smith's 2021 Health Service Safety Plan
According to Ms Roberts, in May 2021, Mr Smith told Human Resources of the Health Service that he had concerns for his safety.[80] Between May and June 2021, the Health Service, with Mr Smith's input, developed a safety plan for him ('Mr Smith's 2021 safety plan').[81]
[80] Exhibit 16, para. 74.
[81] Exhibit 16, paras. 72-78 and exhibits 'JR26' and 'JR27'.
In her letter to Mr Smith dated 16 June 2021, attaching Mr Smith's 2021 safety plan as developed by the Health Service, Ms Katie Castles, Manager, HR Business Services stated:
Dear Mr Smith
I refer to recent discussions with you regarding the protection orders issued by the Southport Magistrates Court on 17 May 2021 concerning you and Ms Kathleen Smith pursuant to section 37 of the Domestic and Family Violence Protection Act 2012 (Qld) (Orders).
The Orders impose the following conditions that pertain to you, as the respondent:
1. The respondent must be of good behaviour towards the aggrieved and not commit domestic violence against the aggrieved.
2. The respondent is prohibited from contacting or attempting to contact or asking someone else other than a lawyer to contact the aggrieved (exceptions are detailed in the order).
3. The respondent is prohibited from following, approaching, approaching to within 100 metres of the aggrieved when at any place (exceptions are detailed in the order).
Gold Coast Hospital and Health Service (GCHHS) has a duty to provide and maintain a safe working environment for all employees, so far as reasonably practicable. The positions that Ms Kathleen Smith and you hold are both located at the same workplace, Gold Coast University Hospital (GCUH). GCHHS's role is therefore to facilitate your compliance with the Orders to the extent that GCHHS can, consistent with its WHS obligations.
The purpose of this letter is to outline the steps taken by GCHHS to date and how it proposes to support you in your employment.
…
Proposed safety plan and our expectations
Whilst GCHHS is not subject to the Orders, we are committed to promoting a healthy and safe working environment in which everyone is treated fairly and with respect, and in which no individual feels bullied, threatened or intimidated. Your safety whilst at work is our priority.
Having considered the Order conditions, the position of GCHHS is that you may be considered to have approached the other person if you:
1. knowingly physically move/place yourselves to be within 100 m of the other person on the same floor or in the same area of the workplace:
2. deliberately walk up to the other person in the workplace, with intent or knowledge that this action is bringing you closer to the other person.
GCHHS considers that the Orders do not prevent you from:
1. accidentally encountering the other person in the workplace e.g. if one person is taking an elevator and it opens to the other person;
2. being located or working on different levels of the same building in relation to the other person at the same time;
3. being located or working on the same level of the same building, provided no attempt is made:
a.to physically move/place one person to be within 100 m of the other person; and/or
b.for either person to deliberately walk up to the other person, with intent or knowledge that this action is bringing the person closer to the other person.
Based on the above position of GCHHS and in conjunction with the risk assessment and your safety plan, which GCHHS will regularly review, I am reasonably satisfied that it is possible under these specific circumstances for you both to remain employed by GCHHS and work at the same workplace, being GCUH.
To support your safety plan, it is important that you have a clear understanding of how GCHHS expects you to respond to various situations at work.
1. While at work, you are not to deliberately contact the other person, or to walk up to the other person in the workplace with intent or knowledge that this action is bringing you closer to the other person.
2. You are to comply with the controls identified in your safety plan.
3. In the event you find yourself in a scenario where you may be in direct violation of the Order or your safety plan, you are to immediately remove yourself from the situation. We also ask that you promptly let you [sic] line manager know.
4. You are not to seek or solicit information from GCHHS records or from other employees concerning [the other employee's] whereabouts, movements, work arrangement, duties, job performance, social interactions or similar.
5. If not already completed and undertaken within the last six months, you must complete the following training by 25 June 2021:
a.Ethics, Integrity and Accountability, Fraud and Control Awareness and PID (LOL)
b.Safer Dynamic Risk Assessment (LOL)
c.OVP Conflict Management and Challenging Behaviour Awareness (LOL)
d.Understanding Domestic and Family Violence
e.Familiarise yourself with the Disaster and Emergency Management arrangements, including Code Black procedures, which is available on the GCHHS Intranet page.
6. Attend and complete a tour provided by our security team of both the internal and external emergency call points for GCUH.
7. Consider downloading a safety app such as Help Me or Emergency Plus, this can be a vital source of escalation if necessary.
8. Where possible, please remain in areas under CCTV footage within the Health Service grounds including parking lots (be advised cameras are not present in the back of house stairwells).
9. Promptly ensure that you communicate to your line manager any change to your situation and your safety plan has been updated to reflect these changes (as appropriate).[82]
[82] Exhibit 16, exhibit 'JR27', pages 632-634 of the CB. Emphasis added.
Mr Smith denies that he has engaged in any conduct towards Ms Smith '… that would meet the definition of domestic violence' and his evidence is that at no time has he been '… charged with or convicted of breaching a Protection Order'.[83]
[83] Exhibit 2, paras. 3 and 6.
In cross-examination, Mr Smith denied that there was a risk he might come in contact with Ms Smith at the workplace because of the different buildings in which they worked and the size of the workforce and the workplace.[84] I do not accept that evidence. The different buildings in which they worked were, on Mr Smith's evidence, 900 metres apart. In my view, as a matter of common sense, there was a real possibility they may, in either coming to or leaving work or in moving around the Hospital, view each other or that one would view the other or that they may come in close proximity to one another.
[84] T 1-17, ll 19-24.
However, despite the close proximity of the buildings in which Mr Smith and Ms Smith worked, and the chances that they may come within 100 metres of each other when attending their places of work, there is no evidence that Mr Smith, in the time he worked in the Health Service between June 2020 and October 2021:
·contravened the second mutual understanding;
·contravened the 2021 consent Protection Orders; or
·contravened or acted in a way that was inconsistent with the Health Service's expectations of how Mr Smith was to respond to various situations at work, as set out in Ms Castles' letter to Mr Smith dated 16 June 2021, as emphasised above.
Similarly, there is no evidence that Ms Smith ever made a complaint to the Health Service alleging that Mr Smith, as an employee of the Health Service, acted towards her, in any way, that was inconsistent with the second mutual understanding, the 2021 consent Protection Orders or the Health Service's expectations of Mr Smith as set out in Ms Castles' letter.
At no time, prior to his dismissal, was Mr Smith suspended from duty.[85]
Did cl 1.5 a. of the Code apply to Mr Smith at the Gala such that he was obliged to treat Ms Mockler and Ms Bekkeli with courtesy and respect?
[85] T 5-39, ll 4-6.
Both parties accepted that the Code applied to Mr Smith, when he was at the Gala, in respect of Ms Mockler. Both parties, initially, also accepted that the Code applied to Mr Smith, when he was at the Gala, in respect of Ms Bekkeli.
Allegation One
The application clause of the Code relevantly provides that it applies to employees of Queensland public service agencies. As to when it so applies to such employees, the application clause provides:
The Code applies at all times when we are performing official duties including when we are representing the Queensland Government at conferences, training events, on business trips and attending work-related social events.
Having regard to the text of the application clause quoted immediately above, my view is that the Code applies to an employee of a Queensland public service agency at conferences, training events and on business trips, when they are representing the Queensland government.
Further, in my view, given the use of the word '.. and' in the application clause quoted above, it seems to me that attending work-related social events is a separate circumstance from when the Code applies to an employee of a Queensland public service agency. From a practical point of view, it is accurate to conclude that an employee would be representing the Queensland government if attending a conference, a training event, or while on a business trip. It is less accurate to conclude that an employee always represents the Queensland government at a work-related social event. An employee could be representing the Queensland government at a work-related social event depending on the social event and the reasons the employee was attending the event.
Clause 1.5 of the Code provides:
1.5 Demonstrate a high standard of workplace behaviour and personal conduct
We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.
We will:
a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own
b. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
c. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
d. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
e. comply with legislative and/or policy obligations to report employee criminal charges and convictions.
The Gala was a social event sponsored by the Gold Coast Hospital Foundation. It reasonably meets the description of a work-related social event.
On balance, given that the Code applies to an employee of a public service agency when attending a work-related social event, my view is that cl 1.5 of the Code generally applied to Mr Smith when he was at the Gala. This is because the sub-heading to cl 1.5 of the Code refers to demonstrating a high standard of workplace behaviour '… and personal conduct'. The reference to personal conduct, as a separate matter to workplace behaviour, in my view, seems to extend the application of the clause to the non-workplace behaviour of an employee, such as an employee's behaviour at a work-related social event.
On the date of the Gala, Ms Mockler was an employee of the Health Service, even though she worked in a different part of the Health Service to Mr Smith. Ms Mockler, therefore, would reasonably meet the description of a 'co-worker' within the meaning of cl 1.5 a. of the Code.
Allegation Two
In my view, there is a question as to whether Ms Bekkeli was a member of the public, within the meaning of cl 1.5 a. of the Code, in terms of Mr Smith's interaction with her at the Gala.
Ms Bekkeli was not employed in the Department[86] and the reason she was at the Gala was to accompany her husband[87] who did work in the Health Service.
[86] T 3-5, l 4.
[87] Exhibit 13, para. 2.
Was it the case, as seemed to be accepted by Mr Smith,[88] that he was bound by cl 1.5 a. of the Code in respect of Ms Bekkeli?
[88] T 1-37, ll 38-40.
For the reasons given above, the Code applied to Mr Smith, in respect of Ms Mockler, when he was at the Gala, because the Gala was a work-related social event and she was a co-worker.
It is arguable that the material part of cl 1.5 a. of the Code, in so far as it concerns an employee dealing with members of the public, primarily concerns the circumstance where the employee deals with a member of the public in an official capacity, namely, when discharging their duties and responsibilities as an employee of a public service agency. This is because cl 1.5 a. of the Code provides that employees will treat:
[C]o-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.
The reference to being '… appropriate in our relationships with them', in my view, may only connote the relationship that an employee has with members of the public in an official capacity. Mr Smith, while at the Gala, certainly had a requisite relationship with Ms Mockler because she was a co-worker. However, it is open to argue that cl 1.5 a. of the Code cannot bind an employee, in respect of their dealing with a member of the public, where there is no connection with the duties and responsibilities of their position.[89]
[89] Other paragraphs of cl 1.5 of the Code may apply in such a case, for example, paragraph d. of cl 1.5 of the Code. Further, in such a circumstance, any inappropriate or improper conduct in a private capacity by a public service employee, towards a member of the public, may amount to misconduct: see s 187(4)(b) of the Public Service Act 2008 and s 91(5)(b) of the Public Sector Act 2022.
That is, having regard to the heading of cl 1.5, the preamble, the words used in cl 1.5 a. and the words used in cl 1.5 as a whole, does the obligation on an employee, to whom the Code applies, contained in cl 1.5 a. of the Code, to treat members of the public with courtesy and respect:
·only concern the circumstance where an employee deals with a member of the public directly as part of their employment? or
·concern any circumstance where an employee deals with a member of the public at any time, including when the employee is attending a work-related social event?
I directed the parties to make further written submissions on this point after they had filed their final written submissions.
In summary, Mr Smith submitted that:
·the Code was a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992 such that, having regard to the combined effect of s 14(1) and sch 1 of the Statutory Instruments Act 1992, s 14A(1) of the Acts Interpretation Act 1954 applied to the Code, namely, that in the interpretation of a provision of the Code, the interpretation that will best achieve the purpose of the Code, is to be preferred to any other interpretation;[90]
·the Code was prepared pursuant to s 12A of the Public Sector Ethics Act 1994 and cl 1.5 of the Code is set out in the part of the Code that relates to 'Integrity and impartiality' as provided for in s 6 of the Public Sector Ethics Act 1994;[91]
·the Explanatory Notes to the Bills that have led to the current operation of the provisions of the Public Sector Ethics Act 1994, that set standards for public officials to demonstrate integrity and impartiality, confirm that such provisions apply to public officials in performing their official functions;[92]
·having regard to s 10 of the Public Sector Ethics Act 1994[93] and to the application clause of the Code, the interpretation that best achieves the purpose of cl 1.5 of the Code, having regard to its context and purpose as a whole, is that:
- cl 1.5 of the Code applies to the conduct of a public official when discharging their duties and responsibilities as an employee of a public service agency; and
- conversely, cl 1.5 of the Code does not apply where an employee deals with a member of the public at any time, including when the employee is attending a work-related social event;[94] and
·because he (Mr Smith) was not at the Gala to discharge the duties and responsibilities as an employee of a public service agency, then Ms Bekkeli was not a member of the public within the meaning of cl 1.5 a. of the Code, or, in the alternative, if he was discharging his duties and responsibilities, Ms Bekkeli was not a member of the public given Ms Bekkeli attended in a private capacity as a guest of her husband.[95]
[90] Mr Smith's further written submissions filed on 1 September 2023 ('Mr Smith's further submissions'), paras 4-8.
[91] Mr Smith's further submissions, para. 4 a. and para. 16. Section 6 of the Public Sector Ethics Act 1994 provides:
6 Integrity and impartiality
In recognition that public office involves a public trust, public service agencies, public sector entities and public officials seek to promote public confidence in the integrity of the public sector and–
(a) are committed to the highest ethical standards; and
(b) accept and value their duty to provide advice which is objective, independent, apolitical and impartial; and
(c) show respect towards all persons, including employees, clients and the general public; and
(d) 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; and
(e) are committed to honest, fair and respectful engagement with the community.
[92] Mr Smith's further submissions, paras. 9-22.
[93] Section 10 of the Public Sector Ethics Act 1994 (which is contained in pt 4 of that Act which deals with the codes of conduct for public officials) provides:
10 Nature and purpose of codes
(1) In recognition of the ethics principles and values for public service agencies, public sector entities and public officials, codes of conduct are to apply to those agencies, entities and officials in performing their official functions.
(2) The purpose of a code is to provide standards of conduct for public service agencies, public sector entities and public officials consistent with the ethics principles and values.
[94] Mr Smith's further submissions, paras. 23-24.
[95] Mr Smith's further submissions, paras. 30-31.
The Department:
·accepted that the Code is a statutory instrument within the meaning of s 7 of the Statutory Instruments Act 1992, and that the approach to its construction follows the ordinary principles of construction that apply to statutes, including that context, as well as text, is to be considered and that the task is still a text based activity;[96]
[96] The further written submissions of the State of Queensland (Queensland Health) filed on 15 September 2023 ('the Department's further submissions') paras. 3-7.
·submitted that:
- the effect of the relevant provisions of the Public Sector Ethics Act 1994, in respect of the content of the Code and its application, turns on the proper interpretation of the words of the Code;[97]
- the application clause of the Code provides that it applies to relevant employees at all times when they are performing their official duties '… including when we are representing the Queensland Government at conferences, training events, on business trips and attending work-related social events'; and because the application clause provides an inclusive meaning of the concept of performing official duties, the Code applies to an employee of a public service agency when attending work-related social events so that such attendance falls within the meaning of '…performing official duties';[98]
- cl 1.5 of the Code is headed 'Demonstrate a high standard of workplace behaviour and personal conduct' and then goes on to provide that a relevant employee will 'treat … members of the public with courtesy and respect';[99] and
- if cl 1.5 of the Code of Conduct only applied to employees dealing with others directly in relation to their duties as an employee, then the clause would not refer to 'personal conduct' and 'private conduct' and the inclusion of those terms clearly anticipates a broader application of clause 1.5 rather to employees directly performing their role as an employee;[100] and
·further submitted that the:
- Code applied to Mr Smith as an employee of a public service agency whilst he attended the Gala as a work-related social event and that contention was expressly accepted by Mr Smith in his evidence;[101] and
- Ms Bekkeli was a member of the public for the purposes of cl 1.5 a. of the Code, because, on the evidence, as she was not a co-worker or a client of the Health Service, she was a member of the public within its ordinary meaning.[102]
[97] The Department's further submissions, paras. 8-13.
[98] The Department's further submissions, paras. 14-15. Emphasis in the original from the Department's further submissions.
[99] The Department's further submissions, para. 21.
[100] The Department's further submissions, para. 22.
[101] T 1-37, ll 38-40.
[102] The Department's further submissions, paras. 24-25.
I prefer the Department's submissions.
Having regard to the principles of construction of a statute, my view is where the meaning of a provision of a statutory instrument, such as cl 1.5 a. of the Code, is disputed, then in construing that provision, both the text and context of the provision is to be considered.[103] Further, consideration of the context includes the instrument's surrounding provisions, what may be drawn from other aspects of the instrument, and the instrument as a whole; and it extends to the mischief which it may be seen that the instrument is intended to remedy.[104] In addition, a consideration of the context of statutory text includes the legislative history and extrinsic materials, and understanding context has utility if, and in so far as, it assists in fixing the meaning of the statutory text; but legislative history and extrinsic materials cannot displace the meaning of the statutory text, nor is their examination an end in itself.[105]
[103] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, [14] (Kiefel CJ, Nettle and Gordon JJ).
[104] R v A2 [2019] HCA 35; (2019) 269 CLR 507, [33] (Kiefel CJ and Keane J, with Nettle and Gordon JJ at [148] generally agreeing).
[105] FederalCommissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503, [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).
In respect of the hand sanitiser allegation, after it was assessed by the MAC, and determined not to be a matter that needed referral to the Crime and Corruption Commission, management action was taken by the Health Service.
In respect of the fraud allegation, Mr Potts made an assessment of those allegations and advised Mr Smith that:
·leave records indicated Ms Smith had taken leave for appropriate purposes, but further enquiries were still needed; and
·the use of emails by Ms Smith was consistent with the relevant policy.
There was no finding by any relevant officer of the Health Service that these allegations were made vexatiously. Ms Smith was and is an employee in the Health Service. There was no subsequent investigation by the Health Service, of Mr Smith, that he made these allegations for reasons that may have given rise to disciplinary action being taken against him.
In these circumstances, I cannot form the view that the fact Mr Smith made these allegations means that there is a loss of trust and confidence between the Department and Mr Smith that is soundly and rationally based. The fact that senior employees of the Health Service may hold negative views about certain aspects of Mr Smith's character, because of these complaints, is not a sound and rational basis to conclude that his re-employment is impracticable. These complaints have no direct relationship to the conduct for which he was dismissed by the Health Service.
Thirdly, the Department submitted that it was untenable for Mr and Ms Smith to continue working in the same workplace given Mr Smith's inability to conduct himself in an appropriate manner when it came to Ms Smith. The difficulty I have accepting that submission is that there is no evidence that Mr Smith acted in an inappropriate manner towards Ms Smith during the time of his employment. That is to say, there is no evidence that Mr Smith acted inappropriately towards Ms Smith at any time during his employment in the Health Service in breach of:
·the Code;
·the PS Act;
·any applicable Health Service policy; or
·any undertaking he gave to Ms Smith.
Further, for the reasons given earlier, Ms Castles stated to Mr Smith that she was of the view that Mr and Ms Smith could safely work in the same workplace, namely the Gold Coast University Hospital, by reason of Mr Smith's safety plan and where Mr Smith complied with the Health Service's relevant expectations of him as set out in Ms Castles' letter. There is no evidence Mr Smith acted in a way inconsistent with those expectations, in respect of Ms Smith, during the time of his employment in the Health Service.
Fourthly, I do not accept the tenor of the submissions made by the Department about the review of Mr Smith's Professional Development Plan regarding his communication style.
True it is that the issues regarding Mr Smith's communication style concerned three female employees who reported to him. However, on a plain reading of Exhibit 3, the concern about Mr Smith's communication style, as expressed by Ms Willcocks, did not concern his behaviour towards females per se.
The evidence is that Ms Willcocks' concerns were expressed, and remedial action was taken, because of Mr Smith's communication style to his subordinate employees. Indeed, Ms Willcocks stated that, looking at the complaints collectively, she was of the view that Mr Smith's '… communication style was perceived by the complainants as direct, imposing, uncaring and at times, arrogant' and that she (Ms Willcocks) was disappointed that Mr Smith had not reflected on his verbal and non-verbal communication style or '… how it impacts on others throughout this process'.
As referred to earlier in these reasons, the issues raised by Ms Willcocks were dealt with by a review of Mr Smith's Professional Development Plan. However, there is no evidence, following Ms Willcocks' letter, of any other action being taken in relation to this issue.
For these reasons, I cannot accept the Department's submissions that these issues are relevant to whether re-employment is practicable. Clearly there was an issue with Mr Smith's communication style to the extent that he did lack insight into how he communicated with employees who reported to him. However, that matter was brought to his attention, practical steps to change his communication style were proposed, and there is no evidence that there was a repeat of any such lack of insight on Mr Smith's part.
Finally, I do not accept the Department's submission that the effect of Mr Smith's conduct had the potential to significantly damage the Department's reputation and place it in an untenable position in relation to ensuring the health and safety of other employees in the workplace given the nature of Mr Smith's conduct at the Gala. In particular, the Department submitted that public trust and confidence would be eroded if, despite Mr Smith's conduct, he was to be re-employed as it would send the message that inappropriate behaviour towards females is condoned by the Department.
These submissions are overstated.
In the first place, there was no evidence before the Commission that Mr Smith's conduct at the Gala became public or that any sponsors of the Health Service formed any negative view of the Health Service because of Mr Smith's conduct.
In the second place, while I accept that the purpose of disciplinary action against public service employees is to protect the public and maintain public confidence, the confidence the public has of the Health Service in respect of Mr Smith's proven breaches of the Code, in respect of Ms Mockler and Ms Bekkeli, would be maintained by taking proportionate disciplinary action against Mr Smith. As I have referred to earlier, disciplinary action should have been taken by the Health Service against Mr Smith, but it should have been disciplinary action proportionate to that proven conduct.
Thirdly, while it is true that Mr Smith was found by Ms Bloch to have treated Ms Mockler and Ms Bekkeli with courtesy and respect, Mr Smith's conduct was not serious wrongdoing compared to, for example, if he had engaged in misconduct towards Ms Mockler and Ms Bekkeli. As referred to earlier, Ms Bloch considered whether Mr Smith had engaged in misconduct, and decided that he did not.
On the findings of fact I have made about Allegations One and Two, Mr Smith's conduct cannot be described as serious wrongdoing on his part.
To some extent, I do share the Department's concern about Mr Smith's lack of insight into his behaviour at the Gala. Mr Smith's evidence primarily tried to put blame on others for his conduct that led to his dismissal.
Having said that, there was some measure of insight and remorse expressed by Mr Smith.
In his response to the first show cause, Mr Smith stated that since the Gala he had:
·re-completed his training in Ethics Integrity and Accountability, Fraud Control Awareness and Public Interest Disclosure on Learning on Line;
·re-completed his training in Occupational Violence Prevention, Conflict Management and Challenging Behaviour Awareness on Learning on Line;
·refreshed his knowledge of the Code and endeavoured to apply that in his daily performance and undertakings in his role of Service and Data Manager;
·always ensured that he conducted himself in a professional, courteous and respectful manner; and
·demonstrated his confidentiality in the matter by not discussing it with anyone other than his Line Manager, Human Resources Business Partner, his support person and with his Union.[335]
[335] Exhibit 21, exhibit 'GB-14', page 1186 of the CB.
In his response to the second show cause, Mr Smith expressed to Mr Brown that he was willing to engage in mediation or other training, if appropriate, to resolve the matter.[336]
[336] Exhibit 1, exhibit 'PS-11' page 142 of the CB.
However, in my view, what is more telling on the evidence is that Mr Smith worked successfully in the Health Service, and without any other allegation or detrimental finding being made about his conduct, between the date after the Gala and the date of his dismissal. Weighing that evidence up with my concern about the degree to which Mr Smith does lack of insight about his behaviour, I cannot reasonably come to the conclusion that the Department's expressed loss of trust and confidence in Mr Smith is soundly and rationally based.
For these reasons, I am of the view that, subject to the Department identifying an available position that I consider suitable, Mr Smith should be re-employed.
There was some evidence before me, at the time of the hearing of this matter, of other vacant classification AO5 positions in the Health Service. I am unaware if those positions are still available or if other positions, at the AO5 classification level, have become available.
I will require the parties to put on further evidence about that matter, so that I may properly assess whether or not there is a position available, that I consider suitable, into which Mr Smith could be re-employed. In the first instance, that evidence should be about such available positions in the Health Service as opposed to the Department. Any other orders I may make will be dependent on my decision about there being an available and suitable position.
Section 321(3) of the Act provides that the Commission may order the employer to re-employ the employee in another position that the employer has available. As such, the Department should file its evidence first.
Conclusion
For the reasons I have given:
·Mr Smith's dismissal was unfair because it was unreasonable; and
·Mr Smith's re-employment, subject to another position that the Department has available and that I consider suitable, is not impracticable.
Directions Orders
I make the following Directions Orders:
1. That the Respondent files in the Industrial Registry, and serves on the Applicant, affidavit material which identifies all current vacant positions, classification AO5, within the Gold Coast Hospital and Health Service, by 4.00 pm on Wednesday, 25 October 2023.
2. That the Applicant files in the Industrial Registry, and serves on the Respondent, affidavit material which identifies any other current vacant positions, classification AO5, within the Gold Coast Hospital and Health Service, by 4.00 pm on Wednesday, 8 November 2023.
3. That there be a further hearing, limited to the question of whether there is another position, classification AO5, that the Department has available and that the Commission considers appropriate for the purpose of considering the Applicant's re-employment, to be held before Deputy President Merrell at 9.00 am on Friday, 10 November 2023 at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane.
4. By 4.00 pm on Thursday, 9 November 2023, the parties are to give notice to each other as to which deponents, if any, are required for cross-examination at the hearing on Friday, 10 November 2023.
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