Spence v State of Queensland (Queensland Health)
[2025] QIRC 262
•2 October 2025
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
| CITATION: | Spence v State of Queensland (Queensland Health) [2025] QIRC 262 |
| PARTIES: | Spence, Peter v State of Queensland (Queensland Health) |
| CASE NO: | PSA/2024/150 |
| PROCEEDING: | Public Sector Appeal – Fair Treatment Decision |
| DELIVERED ON: | 2 October 2025 |
| MEMBER: | McLennan IC |
| HEARD AT: | On the papers |
| ORDERS: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
| CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against disciplinary findings – where the appellant was employed as a senior dental technician – where two conduct allegations against the appellant were substantiated – where the appellant appeals the disciplinary finding decision – whether the disciplinary finding decision was fair and reasonable |
| LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564 Public Sector Act 2022 (Qld) s 3, s 4, s 90, s 91, s 129, s 131, s 133 Directive 05/23: Discipline cl 7, cl 9, cl 13 Directive 17/20: Workplace investigations cl 6 |
| CASES: | Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 Briginshaw v Briginshaw (1938) 60 CLR 336 Chamberlain v The Queen (No 2) (1984) 153 CLR 521 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170 |
Reasons for Decision
Background
Mr Peter Spence ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent').
Mr Spence works as a Senior Dental Technician within Gold Coast Hospital and Health Service ('GCHHS'), Oral Health Services, Surgical and Critical Care Division. He has been employed by Queensland Health for over 30 years.[1]
[1] Appeal Notice filed 16 September 2024, Correspondence from Mr Grant Brown to Mr Peter Spence dated 28 August 2024 (Second Show Cause Notice, SSCN), 2.
Mr Spence and Ms Fiona Weber both performed duties in the Oral Health laboratory.
Over time, their working relationship soured. When Ms Weber complained to Mr Glenn Knuth (direct line manager) about an incident with Mr Spence back in August 2023, Mr Knuth told the pair to "stay away" from each other.[2] Unsurprisingly, Mr Knuth's determination did not resolve the matter.
[2] Respondent's submissions filed 8 October 2024, [15.5].
Tensions between the pair culminated in alleged workplace assaults and verbal abuse.
Ms Weber complained to Mr Knuth, and then to her union (UWU). A formal grievance was escalated to Mr Ron Calvert (Chief Executive, GCHHS). Mr Spence was suspended from duty - and an external investigator was appointed to conduct an independent investigation into the workplace conduct allegations. Interviews were conducted with laboratory staff, including Mr Spence. The investigator examined three allegations made against Mr Spence, though the final report concluded only two allegations were "capable of being substantiated" "if the decision maker accepts the evidence and reasoning outlined within this report."[3] A show cause process ensued. The result was a Disciplinary Finding Decision (DFD) to substantiate the two allegations - and a disciplinary penalty was proposed, for Mr Spence's response.
[3] Appellant's submissions filed 25 September 2024, QH07/24 Final Report prepared by Ashdale, June 2024 (Investigation Report), 2.
The Disciplinary Finding Decision is the subject of this appeal only.
Chronology
A brief chronology is set out below:
Date
Alleged incident / Event
10 January 2024
There was physical contact between Mr Spence and Ms Weber. Each alleged the other had intentionally bumped into them.
11 January 2024
There was physical contact between Mr Spence and Ms Weber. Each alleged the other had intentionally bumped into them.
In addition, Ms Weber alleged Mr Spence said words to the effect of "you are stupid" and/or "your turn is coming".
Ms Weber reported the incident to Mr Knuth (direct line manager).
5 March 2024
Ms Weber alleged Mr Spence verbally abused her.
11 March 2024
The United Workers' Union (UWU) submitted a formal grievance to Mr Ron Calvert (Chief Executive, GCHHS), on behalf of Ms Weber. UWU requested GCHHS investigate the complaint.
20 March 2024
Mr Grant Brown (Executive Director, People and Operations, GCHHS) advised Mr Spence of the complaint, and that he would be suspended from duty on normal remuneration.
11 April 2024
Mr Calvert appointed Mr Nicholas Joss (Principal investigator, Ashdale) to independently investigate the alleged workplace conduct concerns.
31 May 2024
Mr Joss interviewed Mr Spence.
24 June 2024
The external investigation concluded. A final report was produced.
16 July 2024
Mr Brown issued Mr Spence with the First Show Cause Notice (FSCN). Mr Spence was invited to show cause why disciplinary findings should not be made against him, in respect of two allegations.
8 August 2024
UWU responded to the FSCN, on behalf of Mr Spence.
28 August 2024
Mr Brown issued Mr Spence with the Disciplinary Finding Decision (DFD), within the Second Show Cause Notice (SSCN). That is, that the two allegations against him were 'substantiated', on the balance of probabilities.
In addition, Mr Brown invited Mr Spence's response to the Proposed Disciplinary Action (PDA) of 'termination of employment'.
Disciplinary Finding Decision
By letter dated 28 August 2024, Mr Brown issued the Disciplinary Finding Decision to 'substantiate' two allegations against Mr Spence:[4]
[4] Correspondence from Mr Grant Brown to Mr Peter Spence dated 28 August 2024 (SSCN).
1.On 11 January 2024, you directed inappropriate physical and verbal behaviour towards Ms Fiona Weber by:
inappropriately walking into her; and/or·
speaking inappropriately to her by saying words to the effect of "you are stupid" and/or "your turn is coming".·
2.On 5 March 2024 and other unknown dates, you failed to treat Ms Weber with courtesy and respect when you spoke inappropriately towards Ms Weber by calling her words to the effect of:
· an idiot; and/or
· a lazy motherfucker; and/or
· a lazy bitch; and/or
· 'cuntstable'.
Grounds for Discipline
With respect to Allegation 1, Mr Brown found Mr Spence was "guilty of misconduct, that is inappropriate or improper conduct in an official capacity", within the meaning of s 91(5)(a) of the Public Sector Act 2022 (Qld) (PS Act). On that basis, Mr Brown decided that grounds for discipline arose under s 91(1)(b) of the PS Act.[5]
[5] Correspondence from Mr Grant Brown to Mr Peter Spence dated 28 August 2024 (SSCN), 4.
With respect to Allegation 2, Mr Brown found Mr Spence had "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action" namely the Code of Conduct for the Queensland Public Service ('the Code'). On that basis, Mr Brown decided that grounds for discipline arose under s 91(1)(h) of the PS Act.[6]
[6] Ibid 5.
Appeal Rights
Mr Brown advised Mr Spence that he had the right to appeal to the Queensland Industrial Relations Commission (QIRC), if he believed the Disciplinary Finding Decision was unfair and unreasonable.[7]
[7] Ibid 6.
Mr Spence exercised his right to appeal the "fair treatment decision" in the QIRC.
Shortly after Mr Spence filed this Appeal on 16 September 2024, I issued a Directions Order that stayed the Disciplinary Finding Decision until the determination of this appeal or further order of the Commission.[8]
[8] Directions Order issued 18 September 2024, 1.
Appeal Grounds
Mr Spence submitted the following appeal grounds:[9]
1. The external investigator made errors in his report to the delegate.
2.The delegate did not sufficiently consider the information I provided in my response to the external investigation report.
3.The delegate did not put sufficient weight on all of the evidence provided by Mr Knuth, Mr Titley or Mr Diaz.
[9] Appeal Notice filed 16 September 2024, 4.
Jurisdiction
Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act provides that an appeal may be made against "a fair treatment decision". Where a fair treatment decision is defined to be:
… a decision a public sector employee believes is unfair and unreasonable.[10]
[10] Public Sector Act 2022 (Qld) s 129.
Mr Spence has been an employee of the Respondent at all times relevant to this appeal.
I am satisfied that the fair treatment decision can be appealed.
Timeframe to Appeal
Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
Mr Brown's decision letter was dated 28 August 2024, and given to Mr Spence that day. This appeal was filed on 16 September 2024.
I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.
Appeal principles
Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[11]
[11] Industrial Relations Act 2016 (Qld) s 562B(3).
A public service appeal under the IR Act is not by way of rehearing,[12] but involves a review of the decision arrived at and the decision–making process associated therewith.
[12] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.
What decisions can the Industrial Commissioner make?
In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
·confirm the decision appealed against; or
·set the decision aside and substitute another decision; or
·set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions
The parties filed written submissions in accordance with the Directions Order issued.
I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.
Relevant provisions of the PS Act
Section 3 of the PS Act provides:
3 Main purposes of Act
The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
Section 4 of the PS Act provides:
4 How main purpose is primarily achieved
The main purpose of this Act is to be achieved primarily by —
…(c) creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
(i)providing for the key rights, obligations and employment arrangements of public sector employees; and
(ii)maximising employment security and permanency of employment; and
(iii)taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
(iv)ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
(v)ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
(vi)setting a positive performance management framework for public sector employees; and
(vii)fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and
…
Section 91 of the PS Act relevantly provides as follows (emphasis added):
(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
…
(b)been guilty of misconduct; or
…
(h)contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
Section 91(5) of the PS Act relevantly provides:
(5) In this section –
misconduct means -
(a)inappropriate or improper conduct in an official capacity; or
(b)…
Example of misconduct –
victimising[13] another public sector employee in the course of the other employee's employment in the public sector
[13] The Macquarie Dictionary defines 'victimise' as:
1. to make a victim of.
2. to punish unfairly.
3.to discipline or punish selectively, especially as a result of an industrial dispute: four men were victimised by management after the strike.
4.to treat unfairly, especially in the area of employment, usually on the basis of sexism, racism, etc.
5.to dupe, swindle, or cheat: to victimise tourists.
6. to slay as or like a sacrificial victim.
Relevant provisions of the Directive
Directive 05/23: Discipline (the Directive) provides (emphasis added):
7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
7.2 Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
a. the seriousness of the employee's personal conduct and/or work performance, and
b. whether the matter should be resolved through management action instead, and
c. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
d. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
e. whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
f. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
g. whether further information is required to make a decision to commence a disciplinary process, and h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
…
9.3 Show cause process for disciplinary finding
a. the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
b. written details of each allegation in clause 9.3(a) must include:
i. the allegation
ii. the particulars of the facts considered by the chief executive for the allegation
iii. the disciplinary ground under section 91 of the Act that applies to the allegation
c. when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
d. a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
e.the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
f.if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
9.4 Decision on grounds (disciplinary finding)
a.the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
b.the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
c. for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
d. the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
e. if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation f. if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
9.5 Show cause process for proposed disciplinary action
a. the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
b. the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
c. the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
d. in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
i. the seriousness of the disciplinary finding
ii. the employee's classification level and/or expected level of awareness about their performance or conduct obligations
iii. whether extenuating or mitigating circumstances applied to the employee's actions
iv. the employee's overall work record including previous management interventions and/or disciplinary proceedings
v. the employee's explanation (if any)
vi. the degree of risk to the health and safety of employees, customers and members of the public
vii. the impact on the employee's ability to perform the duties of their position
viii. the employee's potential for modified behaviour in the work unit or elsewhere
ix. the impact a financial penalty may have on the employee x. the cumulative
impact that a reduction in classification and/or pay-point may have on the employee
xi. the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding
e. a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
f. the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
g. if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
…
13. Appeals
13.1 A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.
The Directive defines relevant terms as follows:
Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the: relevance of the evidence to the allegations seriousness of the allegations inherent likelihood or improbability of a particular thing or event occurring gravity of the consequences flowing from a particular finding.
…
Disciplinary ground has the meaning provided for under section 91 of the Act.
…
Misconduct has the meaning provided for under section 91(5) of the Act.Questions to be Decided
The question to be decided is:
·Was the Delegate's Disciplinary Finding Decision fair and reasonable?
Mr Spence's appeal grounds are directed to his contention that Mr Brown should not have decided to substantiate the two allegations against him.
Mr Spence also complains that the process was procedurally unfair because:
·"The investigative process by both the investigator and then by QH has not demonstrated that the investigation was conducted with the presumption that the allegations may have been false."[14]
·"I was not provided with the full investigation report, not have I been provided with the full transcript of all of the witness interviews. This has limited my ability to respond to the allegations and in the preparation of this appeal."[15]
[14] Appellant's submissions filed 25 September 2024, [35].
[15] Appellant's submissions filed 25 September 2024, [36].
Summary of Findings
The summary of findings are:
1.With respect to Allegation 1:
a) I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'.
b) I find that it was fair and reasonable for the Delegate to determine that the substantiated conduct "meets the threshold for misconduct".
2.With respect to Allegation 2:
a) I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'.
b) I find that it was fair and reasonable for the Delegate to determine that the substantiated conduct "contravened, without reasonable excuse, a relevant standard of conduct", namely the Code of Conduct.
3.Mr Spence was afforded procedural fairness.
I have detailed my consideration of each of these elements below.
Balance of probabilities
The Delegate's disciplinary finding decision was made on the 'balance of probabilities'. The wording of Briginshaw v Briginshaw ('Briginshaw')[16] is incorporated into the Directive, and there is no contention that said principle does not apply in this instance.
[16] (1938) 60 CLR 336.
The Directive prescribes that:
… For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
· relevance of the evidence to the allegations
· seriousness of the allegations
· inherent likelihood or improbability of a particular thing or event occurring
· gravity of the consequences flowing from a particular finding.[17]
[17] Directive 05/23: Discipline, 'Definitions'.
In civil matters, the standard of proof is the balance of probabilities.[18] The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:
… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…
(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[19]
[18] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.
[19] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.
It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur. It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'. Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence. In Chamberlain v The Queen (No 2)[20] Gibbs CJ and Mason J provided:
When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …[21]
[20] (1984) 153 CLR 521.
[21] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.
The question is then whether it was open for the Delegate to be reasonably satisfied of each of the disciplinary findings. That question informs whether the decision was fair and reasonable. It is not a hearing de novo.
'Fair and Reasonable'
In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[22] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
[22] [2024] ICQ 3.
His Honour observed that, for appeals of this type, "the question of whether the internal decision was fair and reasonable was not to be answered by the application of the test of legal reasonableness" in the decision of the Supreme Court in Gilmour v Waddell & Ors.[23]
[23] [2019] QSC 170.
In State of Queensland (Queensland Health) v Hume,[24] his Honour explained (citations omitted):
[24] [2024] ICQ 3.
[41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '… fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.
[42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '… fair and reasonable', are used in other than their ordinary meaning.
[43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.
[44] Similar arguments made to the Commission have been rejected by the Commission.
[45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.
…
[48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:
• that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and
• that the legislative intention is that those words, that make up the phrase '… fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.
[49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '… free from bias, dishonesty, or injustice'46 and the word 'reasonable' means '… agreeable to reason or sound judgment'.47 Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact.
[50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '… including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.
[51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.
…
[53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.
Could the Delegate be 'reasonably satisfied' that discipline grounds have been established?
Section 91 of the PS Act prescribes that a chief executive "may discipline the employee if the chief executive is reasonably satisfied the employee has" done the "act or omission" constituting the disciplinary ground.
In this appeal, the Appellant challenges the disciplinary finding made by the Respondent. A disciplinary finding means a finding that a disciplinary ground exists.[25]
[25] Public Sector Act 2022 (Qld) s 90.
The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act. That includes where the employee has "been guilty of misconduct".[26]
[26] Ibid s 91(1)(b).
The consideration of "misconduct" under s 91 of the PS Act is significant in this matter.
In the case of Ball v State of Queensland (Queensland Corrective Services) ('Ball')[27] O'Connor VP relevantly explained (emphasis added, citations omitted):
[27] [2021] QIRC 116.
[79]Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.
[80]In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy. The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.
…
[83]Daubney J, in considering s10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent. Rather, each term should be read as giving colour to the other. His Honour held that:
'[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.
[84]Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW). Kirby P said:
But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.
In Ball, O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[28] in these terms (emphasis added):
In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[29]
[28] [2020] QIRC 032.
[29] Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 [86], citing Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 13 [62].
Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service,[30] in which he also held that (emphasis added):
[30] [2020] QIRC 067.
In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[31]
[31] Ibid [36].
Consideration – Allegation 1
Allegation 1:
On 11 January 2024, you directed inappropriate physical and verbal behaviour towards Ms Fiona Weber by:
inappropriately walking into her; and/or·
speaking inappropriately to her by saying words to the effect of "you are stupid" and/or "your turn is coming".·
Was it fair and reasonable for the Delegate to determine that Allegation 1 is 'substantiated'?
10 January 2024 incident
Before considering Allegation 1, Mr Spence raised an issue with respect to Ms Weber's claim that he had also intentionally bumped into her the day before. Mr Spence said that it was in fact Ms Weber who had intentionally bumped into him. He submitted:
On 10 January 2024 at approximately 10:20 hours I was walking through a corridor and I felt someone bump into me from behind. I heard the person speaking loudly at the time and I recognised the voice to be that of Ms Fiona Weber. I do not recall what she was saying. I did not reply and I do not know where she went after that.[32]
[32] Appellant's submissions filed 25 September 2024, [17].
The external investigator was unable to substantiate the earlier 10 January 2024 allegation.[33] It was not included in the FSCN for Mr Spence's response. It does not form part of the DFD, subject of this appeal.
[33] Ibid [16]; Respondent's submissions filed 8 October 2024, [15].
Mr Spence submitted that the 10 January 2024 incident is relevant because:
On 11 January 2024 Ms Weber repeated her conduct from 10 January 2024 where she bumped into / collided with me, potentially intentionally.[34]
…
The only evidentiary difference between the allegations in the investigation in relation to 10 January 2024 and 11 January 2024 is that there is hearsay evidence to support the 11 January 2024 allegation.
QH has not given sufficient weight to the events of the 10 January 2024 as outlined in the transcript of my interview with the investigator in understanding my immediate verbal response to the event that occurred on 11 January 2024.[35]
[34] Appellant's submissions filed 25 September 2024, [18].
[35] Ibid [20]-[21].
Mr Spence also submitted the 10 January 2024 incident was relevant to consideration of Allegation 1 because it provided context for the comments, he said he made on 11 January 2024. He asserted that "My statements with words to the effect of "you cannot keep doing that" is in response to Ms Weber colliding into me on the previous day."[36]
[36] Appellant's reply submissions filed 9 October 2024, [7].
The Respondent disputed Ms Spence's contention that "the only difference" between the 10 January 2024 and 11 January 2024 incidents was the "hearsay evidence" about the 11 January 2024 allegation.
The Respondent stated hearsay evidence was not relied upon by the investigator or Delegate with respect to the 10 January 2024 incident. That is demonstrated by the fact that the 10 January 2024 allegation was not able to be substantiated by the external investigator, in circumstances where Ms Weber and Mr Spence each accused the other, in the absence of any witnesses. It was not considered sufficient to rely on what Ms Weber later told Ms Nolte and Ms Irving about what had occurred between she and Ms Spence.
It is clear that hearsay evidence was not relied upon because the 10 January 2024 matter was not put to Mr Spence in the FSCN.
11 January 2024 incident
However, Mr Spence's precise claim was that hearsay evidence was relied upon to substantiate the 11 January 2024 allegation – not the 10 January 2024 incident, as responded to by the Respondent. That is apparently because Mr Spence contended that there were "no eyewitness accounts of the collision of 11 January 2024" and "the only evidence relied upon…is Ms Weber's witness statement and hearsay evidence from those who were told about the alleged incident by Ms Weber,"[37] as submitted by Mr Spence.
[37] Appellant's submissions filed 25 September 2024, [22]-[24].
Mr Spence refuted the Respondent's position that "the evidence of Mr Titley was the primary evidence relied upon to substantiate allegation in that Mr Titley was the only witness present in the laboratory"[38] at the time of the 11 January 2024 incident – and that Mr Titley's evidence "corroborated the account of Ms Weber."[39] Mr Spence submitted that is because:
·Mr Titley did not actually see the physical collision between Mr Spence and Ms Weber because it was in his peripheral vision.[40] He was not an eyewitness to the incident.[41]
·Mr Titley's evidence to the investigator[42] was that he had observed Mr Spence being "in shock" after the collision and being asked "what did you do that for?"[43]
·Mr Spence entered the plaster room carrying a flask of reline and headed to where he was to be working. He was focused on his work.[44]
·Ms Weber's hand drawn map showed "she was moving from the bench towards the point of collision".[45]
·Mr Titley's evidence was that "There was plenty of room for people to walk around, unless Ms Weber was leaving quickly or Mr Spence was not watching where he was going."[46]
·Mr Titley did not witness Ms Weber tucking herself into the bench so Mr Spence could comfortably walk past.[47]
·Ms Weber walked into Mr Spence, as he walked towards his workbench focused on the flask of reline he was carrying. Mr Spence said "I was shocked by the collision and the immediate accusation of Ms Weber's, as Mr Titley correctly observed.[48]
·Mr Titley's evidence "more closely corroborated" Mr Spence's account of events.[49]
[38] Respondent's submissions filed 8 October 2024, [13.1].
[39] Appellant's reply submissions filed 9 October 2024, [6].
[40] Investigation Report, 15-16.
[41] Appellant's reply submissions filed 9 October 2024, [6].
[42] Investigation Report, 16.
[43] Appellant's reply submissions filed 9 October 2024, [6].
[44] Ibid.
[45] Ibid.
[46] Appellant's reply submissions filed 9 October 2024, [6].
[47] Ibid.
[48] Ibid.
[49] Ibid.
The Respondent submitted that:
·Mr Titley was the "only witness present" at the time of the 11 January 2024 incident.[50]
[50] Respondent's submissions filed 8 October 2024, [13.1].
·Mr Titley was not one of the people Mr Spence submitted was in a clique against him.[51]
[51] Ibid [15.3].
·Mr Titley was present at the time of the 11 January 2024 incident, as Mr Spence advised the investigator that:[52]
[52] Ibid.
Now he's looking at her and you'd probably have to ask Simon [Mr Titley] how long she was standing there for because I've got no idea.[53]
[53] Interview Transcript, 130.
…
Now at the time it was only Simon [Mr Titley], her and me walking in. There wasn't anyone else in there. He would have had the best view of the whole lot but he was working so I don't know if he actually saw it happen.[54]
[54] Interview Transcript, 134.
·The Investigation report contained "significant analysis and reasons for why the allegation found to be capable of being substantiated".[55]
[55] Respondent's submissions filed 8 October 2024, [15.4].
·Detailed reasons for the substantiation of the allegations were also contained in the SSCN.[56]
[56] Respondent's submissions filed 8 October 2024, [15.4].
·The Delegate relevantly considered:
o Mr Titley was a reliable witness.[57]
[57] Ibid.
o Mr Titley's evidence was consistent with Ms Weber's evidence.[58]
o Ms Weber made contemporaneous complaints to Ms Irving and Mr Knuth.[59]
o Mr Titley corroborated Ms Weber said words to the effect of "what did you do that for", after the collision with Mr Spence. Mr Spence acknowledged she said words to that effect in his response to the FSCN, though did not offer any further context to the comment made.[60]
In his FSCN response, Mr Spence stated:
After we collided, there was a short altercation with Ms Weber. I said words to the effect of "you cannot keep doing this. It is wrong. You can't keep touching people and banging into people. Your time is coming if you keep doing this." I did not say to Ms Weber "you're stupid" or words to that effect. While I do not recall the ins and outs of the conversation, I concede that Ms Weber may have said "what did you do that for?" and I may have said "what?"[61]
o The map of the work area showed there was ample space for Mr Spence "to walk past Ms Weber (who was stationary) and noted Mr Titley advised Ms Weber left the plaster mid-way through a job following the incident."[62]
·The Respondent rejects Mr Spence's contention that no reasons were provided as to why his witness statements were not preferred.
·Ms Weber had previously complained to Mr Knuth about Mr Spence, in an incident on 15 August 2023. The investigator noted it was "more probable than not that as tensions increased, the escalation in Mr Spence's behaviour resulted in Mr Spence displaying his frustration in other ways, which led to physical contact."[63]
[58] Ibid.
[59] Ibid.
[60] Ibid.
[61] Ibid Attachment E: Mr Spence's Show Cause Response, [5].
[62] Respondent's submissions filed 8 October 2024, [15.4].
[63] Ibid [15.5].
Further, Mr Spence submitted that:
·the 11 January 2024 collision was a repeat of Ms Weber's conduct towards him the previous day.[64]
·the 10 January 2024 incident provided "context" for his comment to Ms Weber on 11 January 2024, that she "cannot keep doing that."[65]
·the investigator "misrepresented where I was in the plaster room at the time of the collision with Ms Weber…when deciding that Allegation 1 is substantiated."[66]
[64] Appellant's submissions filed 25 September 2024, [18].
[65] Appellant's reply submissions filed 9 October 2024, [7].
[66] Appellant's submissions filed 25 September 2024, [19].
The Investigation report recounted Mr Titley's account of what occurred, as follows:
§ The incident occurred peripheral to him. Ms Weber was standing at the bench opposite him, approximately one to one and a half metres away from he was standing, the main doors to the plaster room were behind him.
§ He did not quite remember what was going on and he may have had earphones in, but he recalled Ms Weber leaving quite abruptly, which was unusual as she left what she was doing. Ms Weber and Mr Spence had an altercation.
§ He could not recall her exact wording, but Ms Weber said something to the effect of, 'why'd you do that for?' It happened at the end of the bench, and she sort of left in a hurry.
§ He was pretty sure it was just him and Ms Weber working in the plaster room initially. He did not notice Mr Spence enter the room and only noticed him when he was standing at the bench where the incident happened.
§ He was pretty sure it happened after Mr Spence walked into the plaster room. He and Ms Weber were already present working there. He could not recall which way Mr Spence walked or which way they bumped shoulders. There was plenty of room for people to walk around, unless Ms Weber was leaving quickly or Mr Spence was not watching where he was going.
§ He did not see the actual physical contact between Mr Spence and Ms Weber because it was in his peripheral vision but heard some of the conversation where Ms Weber questioned why he did that. All he heard Mr Spence say was 'what?' as in shock, like what has he done.
§ He thought nothing of the incident and thought they were mucking around or being silly.
…
§ He had not heard Mr Spence swear at Ms Weber directly. They may have had little digs at each other from across the room, but he had not heard anything he thought was inappropriate.
§ He had heard Mr Spence call Ms Weber lazy in the past but was unsure of the context. It depended on how a person took it, being called lazy, may be humiliating to some people.
With respect to my own consideration of the various components of Allegation 1, I note that the following matters are not in dispute:
·That the physical collision between the pair occurred on 11 January 2024;
·One party 'walked into' the other;
·Mr Spence conceded that he told Ms Weber "…your time is coming…"[67] (That is, "words to the effect of … and/or "your turn is coming", as contained in the allegation).
[67] Respondent's submissions filed 8 October 2024, Attachment E: Mr Spence's Show Cause Response, [5].
The contested elements of Allegation 1 are therefore:
·Did Mr Spence 'walk into' Ms Weber – or did Ms Weber 'walk into' Mr Spence?
·Was the physical collision between the pair that resulted "inappropriate" or accidental?
·Was Mr Spence's conceded remark to Ms Weber "inappropriate"?
It is accepted that the pair physically collided. The question is whether that was intentional or accidental – and if it was intentional, who did it?
Although the alleged incident of 10 January 2024 was not able to be substantiated, Mr Spence has made submissions about it here to provide some "context".[68] Mr Spence submitted that Ms Weber had intentionally bumped into him from behind on 10 January 2024, that he knew it was her because he "recognised the voice" but "did not reply." Given the entrenched tensions between the pair, including persistent sniping in the workplace, it seems most unlikely that Mr Spence did not turn around and say something to Ms Weber at the time, if the incident occurred as Mr Spence said it did. Witnesses have attested to Mr Spence's predilection for making commentary on, and airing his opinions about, the work of other colleagues in the workplace. That includes expressing views about Ms Weber working at the computer constituting 'laziness'. In that context, it does not follow that Mr Spence would hold back from making a comment to Ms Weber about "intentionally bumping" into him from behind on 10 January 2024, if that had occurred.
[68] Appellant's reply submissions filed 9 October 2024, [7].
I support the Delegate's assessment that the more relevant "context", in considering which version of events was more probable to have occurred, was the backdrop Ms Weber's contemporaneous complaints to Ms Irving and Mr Knuth regarding Mr Spence's prior conduct towards her.[69]
[69] Respondent's submissions filed 8 October 2024, [15.4].
Mr Spence submitted that QH did not give sufficient weight to the 10 January 2024 incident "in understanding my immediate verbal response" to the collision on 11 January 2024. However, although Mr Spence said he told Ms Weber words to the effect of "you cannot keep doing this. It is wrong. You can't keep touching people and banging into people…", Mr Titley's and Ms Weber's accounts of the verbal exchange does not support Mr Spence making that rather lengthy remark to her at the time at all. It appears Mr Spence's argument is that if Ms Weber intentionally bumped him from behind on 10 January 2024, then it follows that she was also the aggressor in the 11 January 2024, rather than himself. However, for the reasons I have outlined above, Mr Spence's version of the 10 January 2024 appears to me unlikely. It does not advance Mr Spence's position with respect to Allegation 1. Out of an abundance of fairness to Mr Spence, the external investigator found the 10 January 2024 incident to be unable to be substantiated. I agree that is the sensible outcome, in these particular circumstances where it is the word of Mr Spence against the word of Ms Weber.
What Mr Titley, Mr Spence and Ms Weber all agree on though, is that immediately after the collision on 11 January 2024, Ms Weber immediately challenged Mr Spence by saying "something to the effect of, 'why'd you do that for?'" and his verbal reply was "What?"[70] Mr Titley's evidence was that Mr Spence said "what?" as "in shock, like what has he done."[71] Ms Weber then left the plaster mid-way through a job following the incident[72] which was "unusual".[73] There had been an "altercation."[74] Although the collision occurred in Mr Titley's "peripheral"[75] vision, he was nonetheless the only other witness to the incident that occurred opposite him "approximately one and a half metres away." In my view, even if Mr Titley was not looking at the pair when the collision occurred, the exchange he heard between Ms Weber and Mr Spence is sufficient for me to find that it was Mr Spence who "walked into" Ms Weber, on the balance of probabilities. That is because the three all agree Ms Weber immediately challenged Mr Spence upon collision. Mr Spence's retort of "what?" appears to me rather contrived – clearly he was aware that a physical collision had occurred between them, regardless of who had walked into who. The natural response in the event of a genuine accident, whether you liked the person you bumped into or not, would be to offer words such as "excuse me", "I beg your pardon", "I'm sorry, I didn't see you there" or similar – not to feign that you did not know what they were referring to by saying "what?" Mr Spence's "shock" (as described by Mr Titley) may have been his response to being immediately called out by Ms Weber, in front of a witness, given her earlier complaint about his conduct towards her. My view is further supported by Ms Weber's act of immediately leaving the room "mid-way through a job". That reflected her upset at the "altercation", that again supports the proposition she was not the aggressor.
[70] Respondent's submissions filed 8 October 2024, Attachment E: Mr Spence's Show Cause Response, [5].
[71] Mr Titley's account, contained in the Investigation Report.
[72] Respondent's submissions filed 8 October 2024, [15.4]
[73] Mr Titley's account, contained in the Investigation Report.
[74] Mr Titley's account, contained in the Investigation Report.
[75] Mr Titley's account, contained in the Investigation Report.
Relevantly too, when Ms Weber left the plaster room she told Ms Irving what had happened. "Ms Irving then made contemporaneous notes of the incident, recording that Mr Spence had purposefully bumped into Ms Weber's shoulder."[76]
[76] Investigation Report, 34.
For the above reasons, I believe Mr Spence deliberately walked into Ms Weber. That was inappropriate.
As earlier noted, Mr Spence conceded that he told Ms Weber "…your time is coming…"[77] That remark constituted "words to the effect of … and/or "your turn is coming", as contained in the allegation. While Mr Spence asserted he said these words by way of chiding Ms Weber about the "intentional bumping" the previous day, I have not accepted his proffered submissions as to the "context" of the 10 January 2024 incident. As I have not accepted the incident on 10 January 2024 occurred as Mr Spence said it had, it follows that I cannot accept Mr Spence's explanation for the remark to Ms Weber that "your time is coming." In my view, the phrase uttered to her immediately after a physical collision is a veiled threat at least. For those reasons, Mr Spence's conceded remark to Ms Weber "inappropriate".
[77] Respondent's submissions filed 8 October 2024, Attachment E: Mr Spence's Show Cause Response, [5]; Transcript of Interview with Mr P. Spence, 30.
I have considered, and endorse, the comprehensive reasoning provided by the Delegate in the Disciplinary Finding Decision correspondence that carefully explained why the allegation is 'substantiated'.
On that basis, I support the Delegate's determination that Allegation 1 is "substantiated." That disciplinary finding decision was fair and reasonable.
Was it fair and reasonable for the Delegate to determine that the substantiated conduct "meets the threshold for misconduct"?
As Merrell DP reasoned in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service,[78] it is also the case here that Mr Spence has engaged in "inappropriate…conduct in an official capacity…and includes a deliberate departure from accepted standards…"[79]
[78] [2020] QIRC 067.
[79] Ibid [36].
I support the Delegate's determination that the substantiated Allegation 1 meets the threshold for misconduct, in the particular circumstances of this case.
Consideration – Allegation 2
Allegation 2:
On 5 March 2024 and other unknown dates, you failed to treat Ms Weber with courtesy and respect when you spoke inappropriately towards Ms Weber by calling her words to the effect of:
· an idiot; and/or
· a lazy motherfucker; and/or
· a lazy bitch; and/or
· 'cuntstable'.
Was it fair and reasonable for the Delegate to determine that Allegation 2 is 'substantiated'?
The key matter with respect to Allegation 2 is whether or not Mr Spence addressed any such remarks towards Ms Weber. If found to have done so, then the conduct is self-evidently "inappropriate".
The external investigator noted that Mr Titley "had heard Mr Spence call Ms Weber lazy in the past but was unsure of the context. It depended on how a person took it, being called lazy, may be humiliating to some people." Mr Titley appeared to have understated the impact of the term. I cannot think of a "context" where being called lazy by a colleague was not humiliating, though I hasten to note the allegation referenced "lazy" as an adjective to another expletive. It is not sufficient to find that Mr Spence called Ms Weber "lazy" alone, in order to substantiate Allegation 2.
Mr Spence accepted that he had called Ms Weber "Constable" (as distinguished from "Cuntstable", a term he denied using) because her husband was a police officer. I consider Mr Spence's explanation to be rather thin. Mr Spence appeared to bestow nicknames on colleagues in relation to how he felt about them. For example, he called Ms Tammy Beer "Fourex" because he both loves XXXX beer and liked Ms Beer.[80] Mr Spence did not like Ms Weber, and it follows that he gave her a nickname to match.
[80] Transcript of Interview with Mr Spence, 29.
Although Mr Spence denied calling Ms Weber "Cuntstable", Ms Schulte, Ms Irving and Ms Nolte reported he had done so to the external investigator.[81] I find it likely that he did so given his admitted history of workplace swearing, use of nicknames relevant to his feelings about colleagues, that he did not like Ms Weber - and also that her husband was a police officer. If it were only the case that Ms Weber's husband was a police officer, I consider it unlikely that he would have given her that particular nickname.
[81] Investigation Report, 36.
Specifically, on 5 March 2024, it was alleged that Mr Spence made disparaging remarks to Ms Weber (and others). Ms Schulte reported that Mr Spence called Ms Weber "a lazy bitch and Ms Irving recalled Mr Spence calling her and others 'idiots' regarding the broken equipment. Ms Weber reported that as a result of the broken equipment, Mr Spence called her and others lazy cunts, which was corroborated by Mr Turner."[82] In the FSCN dated 16 July 2024, the particulars of the allegation put for Mr Spence's response included that:
·On 5 March 2024, Ms Weber overheard Mr Spence refer to staff as "lazy cunts", in conversation with Mr Knuth about damaged equipment.[83]
·Mr Turner told Ms Deborah Goodwin (A/Service Director, Ora Health Services) that on 5 March 2024 he heard Mr Spence "call out a comment across the lab directed at Ms Weber – 'lazy bunch of cunts'."[84]
·Mr Turner told Ms Goodwin that Mr Spence "yells across the lab and calls them 'a bunch of lazy motherfuckers' which is directed at Ms Weber (see: pages 10-11 of Investigation Report)."[85]
·Ms Schulte told the investigator that Mr Spence referred to Ms Weber as a "lazy bitch" on 5 March 2024. The remark was made "in [Ms Weber's] direction across the lab" and said in "a loud booming voice." Ms Shulte said Mr Spence regularly called Ms Weber a "lazy bitch."[86]
·Ms Irving advised Mr Spence had called Ms Weber and others: "lazy motherfuckers"; "Cuntstable"; "Lazy bitch"; "Lazy bitch in the corner"; "Lazy cunts".[87]
·Ms Nolte told the investigator that she had heard Mr Spence call Ms Weber a "lazy cunt" on an ongoing basis.[88]
·Mr Dinkelmann told the investigator that he had heard Mr Spence call Ms Weber "a lazy Sheila".[89]
[82] Investigation Report, 35.
[83] FSCN dated 16 July 2024, 6.
[84] Ibid.
[85] Ibid
[86] Ibid.
[87] Ibid 7.
[88] Ibid.
[89] Ibid 8.
Further, witnesses reported Mr Spence making such remarks about, and within earshot of, Ms Weber and other colleagues. Whether or not Mr Spence considered various colleagues to be part of a clique against him, it remains that numerous colleagues all gave accounts to the external investigator of Mr Spence speaking inappropriately to, and about, Ms Weber. The external investigator wrote that:
The six witnesses interviewed, as well as the statement provided by Mr Turner, all reported incidents where Mr Spence had referred to Ms Weber as lazy. Notably, Natalie Schulte, Helen Irving, Charlene Nolte, Paul Dinkelman, Simon Titley, Gerard Turner and Gerado Diaz reported hearing Mr Spence call Ms Weber variations of the following:
· Lazy
· A lazy bitch
· A lazy motherfucker
· A lazy cunt
· A lazy Sheila
· The lazy bitch in the corner.[90]
[90] Investigation Report, 35.
Given the mountain of evidence above from numerous colleagues about Mr Spence's demeaning remarks to and about Ms Weber – together with Mr Spence's concession that he swears in the laboratory "from time to time",[91] has referred to Ms Weber as "lazy",[92] and to colleagues "idiots"[93] for not cleaning the machines – it was more likely than not that Mr Spence engaged in the conduct subject of Allegation 2, on the balance of probabilities.
[91] Appellant's submissions filed 25 September 2024, [28].
[92] Ibid [29]; Appellant's response to FSCN, [22].
[93] Appellant's response to FSCN, [21].
It was fair and reasonable for the Delegate to have found Allegation 2 to be substantiated.
Was it fair and reasonable for the Delegate to determine that the substantiated conduct "contravened, without reasonable excuse, a relevant standard of conduct", namely the Code of Conduct.?
For the conduct the subject of Allegation 2, that I have confirmed to be substantiated, I support the Delegate's determination that Mr Spence "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, pursuant to s 91(1)(h) of the Act."
Both the Delegate's finding, and identification of the grounds for discipline, was fair and reasonable.
Was Mr Spence afforded procedural fairness?
With respect to procedural fairness, Mr Spence's grounds of appeal were that:[94]
1. The external investigator made errors in his report to the delegate.
2.The delegate did not sufficiently consider the information I provided in my response to the external investigation report.
3.The delegate did not put sufficient weight on all of the evidence provided by Mr Knuth, Mr Titley or Mr Diaz.
[94] Appeal Notice filed 16 September 2024, 4.
With respect to the above complaints, the purpose of the investigation conducted was to gather and analyse information as to whether the allegations could be substantiated or not. The final report prepared by the external investigator and source documentation is then provided to the Delegate. It is then up to the Delegate to determine whether or not "to accept the evidence and reasoning contained in the report" and decide if a disciplinary process will be initiated or otherwise. As Directive 17/20: Workplace Investigations cl 6.7 provides, there is no obligation for the decision-maker to agree with the investigator's findings. While I consider the report prepared by the external investigator to be thorough, measured and well-reasoned, even if Appeal Grounds 1 and 2 occurred as Mr Spence said it did, the disciplinary process that ensued provided Mr Spence with a further opportunity to respond to the allegations. The procedural fairness requirements inherent in the disciplinary process mandated ensured Mr Spence had opportunity to draw attention to any perceived inaccuracy in the Investigation Report – or to emphasise salient points made by either Mr Knuth, Mr Titley, Mr Diaz or himself, to the external investigator - that may have had a material impact on the disciplinary findings. Contrary to Mr Spence's arguments, the Delegate's decision letter reveals very careful attention to Mr Spence's response to the allegations and provides detailed reasoning as to why the allegations were determined to be substantiated. On that basis then, Mr Spence's grounds of appeal are not made out.
Mr Spence also asserted that "The investigative process by both the investigator and then by QH has not demonstrated that the investigation was conducted with the presumption that the allegations may have been false."[95] It is not clear what I am to make of that submission. However, I note that although the "investigation examined three primary allegations against Mr Spence",[96] only two of the three were assessed to be "capable of being substantiated."[97] It appears to me then that the investigation was "conducted with the presumption that the allegations may have been false" because in fact one of the three allegations was not substantiated. Relevantly too, Mr Spence confirmed to the external investigator that he was "satisfied with the way the interview was conducted",[98] in the presence of Mr Peter Alley (UWU).
[95] Appellant's submissions filed 25 September 2024, [35].
[96] Investigation Report dated June 2024, 2.
[97] Investigation Report dated June 2024, 33-36.
[98] Transcript of Interview with Mr P. Spence, 32.
Further, Mr Spence said that "I was not provided with the full investigation report, nor have I been provided with the full transcript of all of the witness interviews. This has limited my ability to respond to the allegations and in the preparation of this appeal."[99] I cannot accept this because Mr Spence has made extensive submissions in support of this appeal, and his show cause response contains several references to pages within the Investigation Report in support of his contentions. Mr Spence's ability to defend the allegations has not been limited. Further, the Respondent has fairly noted the sound reasons for redactions were that:
…the investigation report was redacted to protect Ms Weber's and Mr Knuth's privacy regarding Ms Weber's personal medical information and the outcome of the allegation against Mr Knuth, which should not be known to the Appellant.[100]
[99] Appellant's submissions filed 25 September 2024, [36].
[100] Respondent's submissions filed 8 October 2024, [17].
Conclusion
Both the Delegate's disciplinary finding decisions with respect to Allegations 1 and 2, and identification of the grounds for discipline for each, were fair and reasonable.
Mr Spence was afforded procedural fairness, in the determination of the disciplinary finding decision.
I order accordingly.
Orders
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
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