Waugh v State of Queensland (Department of Education)
[2023] QIRC 332
•16 November 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Waugh v State of Queensland (Department of Education) [2023] QIRC 332 |
PARTIES: | Waugh, Julie-Anne Nancy v State of Queensland (Department of Education) |
CASE NO: | PSA/2023/115 |
PROCEEDING: | Public Sector Appeal |
DELIVERED ON: | 16 November 2023 |
HEARING DATE: | 16 November 2023 |
MEMBER: HEARD AT: | Dwyer IC Brisbane |
ORDER: | Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal. |
| CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the appellant appealed an internal review decision – where the allegations that comprise the appellant’s appeal were considered and rejected by WorkCover Queensland and by the Workers’ Compensation Regulator on review – consideration of whether the appeal should not be heard for a compelling reason |
| LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A, s 562C |
| APPEARANCES: | The appellant appeared on her own behalf Ms L. Pankhurst for the respondent |
Reasons for Decision (delivered ex tempore)
Introduction and background
Ms Julie-Anne Waugh is employed as a primary school teacher by the State of Queensland (Department of Education) (‘the Respondent’). On 12 June 2023, Ms Waugh filed a public sector appeal in relation to an internal review decision of Ms Rachel Borger, Executive Director, Integrity and Employee Relations, dated 22 May 2023 (‘the decision’).
The relevant antecedents to the review are that Ms Waugh originally lodged a grievance alleging her principal was, in short, bullying her. The primary decision-maker in respect of that grievance had an option to either refer the matter for a formal investigation or to a facilitated mediation. The primary decision-maker elected to proceed to a facilitated mediation.
Ms Waugh was not content with this decision and exercised her right pursuant to the relevant directive[1] to have the decision internally reviewed. The request led to the matter being considered by Ms Borger and her decision is now the subject of this appeal.
[1] Directive 11/20: Individual employee grievances.
It is not understating things to say that Ms Waugh’s complaints against her principal are extensive and, in some cases, the allegations are serious. Under the rather innocuous title of ‘bullying’, the particulars alleged include:
· multiple incidents of making false allegations;
· orchestrating situations so the principal could bully and harass her;
· making slanderous allegations regarding her conduct towards a student; and
· coercing a parent to make a false allegation against her.
Proceedings before the Commission
Upon the filing of this appeal, the Commission issued directions for the parties to file submissions. The appeal notice and the submissions revealed two things that concerned the Commission.
Firstly, the appeal notice in particular demonstrated that Ms Waugh had a seriously misconceived idea of the remedies that were available to her through a public sector appeal.
Attached to Ms Waugh’s appeal notice is a lengthy submission that inter alia asks the Commission to consider multiple historical complaints about the principal that date back as far as September 2019. Further, that document concludes under a heading ‘Remedy’, which then, over a course of about three pages, sets out an extensive financial claim for lost wages and medical expenses.
Plainly, none of these matters are relevant to the review of Ms Borger’s decision, nor are they matters that are within the Commission’s jurisdiction when dealing with public sector appeals.[2]
[2] See Industrial Relations Act 2016 (Qld) s 562C.
Secondly, there were references to actions that had been undertaken already by Ms Waugh with respect to her complaints against the principal, namely, a workers’ compensation claim, and that these matters involved consideration of the same or largely the same material facts.
At a mention of the matter on 8 September 2023, Ms Waugh confirmed that her extensive allegations had been considered independently by WorkCover Queensland (‘WorkCover’) and also by the Workers’ Compensation Regulator (‘the Regulator’), who reviewed the decision of WorkCover. Ms Waugh confirmed that claim involved largely the same facts that were the subject of the grievance. [3]
[3] T 1-4, ll 10-45.
Both WorkCover and the Regulator rejected the claim. Ms Waugh says that she did not file an appeal against the decision of the Regulator in part because of the cost that she was quoted by the lawyers acting for her at the time but also, she said, ‘because human resources in Far North Queensland wrote the response and that the principal had lied’ or words to that effect.[4]
[4] T 1-4, ll 35-45.
Additionally, Ms Waugh revealed at the mention on 8 September 2023 that she had a complaint also involving the same allegations currently stayed before the Queensland Human Rights Commission. Her recent submissions filed on 9 October 2023 suggest that this complaint is now unlikely to proceed, however, she now foreshadows a general protections claim, which will be discussed later in these reasons.[5]
[5] At paragraphs [23] – [25].
It was explained to Ms Waugh at the mention on 8 September 2023 that these matters, in the Commission’s view, were a duplication of the issues that she was seeking to have dealt with by the Respondent in respect of her grievance. It was explained that this was a compelling reason why the Commission ought not hear her appeal.[6]
[6] T 1-7 – T 1-8.
The Commission foreshadowed the exercise of the discretion available to it pursuant to s 562A of the Industrial Relations Act 2016 (Qld) (‘IR Act’) and directed the parties to file submissions in relation to that section. Those submissions were filed and have been considered in full by the Commission.
Relevant legislative provisions
If the appeal in this matter were heard, there are only three possible outcomes available in accordance with the terms of the IR Act. Firstly, the Commission can determine to confirm the decision under review. Secondly, the Commission can determine to set the decision under review aside and substitute it with a new decision. Thirdly, the decision can be set aside and the matter returned to the decision-maker for further consideration with appropriate directions.[7]
[7] Industrial Relations Act 2016 (Qld) ss 562C(1)(a),(c).
Section 562A of the IR Act provides:
562A Commission may decide not to hear particular public service appeals
(1) …
(2) …
(3) The commission may decide it will not hear a public service appeal against a decision if—
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
(Emphasis added)
Consideration
The limited scope of the Commission’s jurisdiction means that it cannot forensically evaluate the primary complaints to a degree of satisfaction that would allow the Commission to confidently substitute a different decision. The only conceivable outcome of any benefit to Ms Waugh (of the three available) would be a return of the matter to the decision-maker with the possibility of a recommendation the complaints be investigated, and that is where the duplication arises.
Ms Waugh’s application for workers’ compensation was in every sense the most logical action for her to pursue in respect of the multiple concerns she had about her principal. But in making a claim for workers’ compensation, an applicant is required to undergo an objective and independent scrutiny of the grounds upon which they rely. This necessarily involves, at the workers’ compensation level, a claims officer obtaining a list of complaints and obtaining responses from relevant witnesses.
In making the claim for workers’ compensation, Ms Waugh had the benefit of an independent evaluation of her multiple allegations against the principal. She did not have the benefit just once, she had it twice, by virtue of a review of the WorkCover decision by the Regulator.
Both WorkCover and the Regulator are independent government entities. Moreover, they are extremely experienced at evaluating evidence and reaching well considered conclusions about the reasonableness of the conduct of managers in relation to certain claims. Ms Waugh’s claim, which she confirms involves many (if not all) of the same allegations antecedent to this appeal, was rejected at both levels.
While Ms Waugh has cited the cost of an appeal as a reason for why she did not further challenge the conclusion of the Regulator, it is noted that a great many applicants for compensation appear self-represented in this Commission as appellants when they wish to appeal such decisions. The prohibitive cost in pursuing these quite serious complaints is an implausible excuse for not further challenging the decision of the Regulator.
The great concern for the Commission is that, given there have already been two independent examinations of the matters Ms Waugh complains about and, given that neither has found the principal’s conduct to be unreasonable, there could be no utility in returning this matter to the Respondent and directing yet another investigation of those matters.
While it is acknowledged that the review process conducted by the Regulator might not extend necessarily to the depths of a workplace investigation, the decision of the Regulator in relation to Ms Waugh’s claim was attached to the Respondent’s submissions filed on 18 October 2023. That decision, which is 23 pages in length, reveals a very comprehensive review the evidence gathered in respect of the allegations made by Ms Waugh. The Regulator’s decision further reveals very clear and well-balanced findings about the reasonableness of the actions of the principal. In many respects, it appears to the Commission that Ms Waugh, in bringing this appeal, is simply wishing to reagitate her claim via this appeal because she is unable to accept those outcomes.
Of more concern is this passage in her submissions filed 9 October 2023:[8]
A Public Service Appeal about the respondent’s decision not to investigate my significant and readily corroborated allegations is unlikely to be heard at QHRC. But it may be alternatively heard as part of a general protection (SIC) application and would benefit from a Commissioner’s opinion on this matter.
[8] Submissions of the Appellant filed 9 October 2023, para. 15(iii).
In this passage, Ms Waugh is effectively (albeit inadvertently) disclosing an ulterior purpose for this appeal which might amount to an abuse of process. Such a reason is not a legitimate basis to bring proceedings in a public sector appeal.
Whatever the case may be, it is the Commission’s view that it does not need to consider whether Ms Borger’s decision was fair and reasonable. Even if it was found that it was not, another investigation of the same complaints would be a wasteful duplication of resources in circumstances where two conclusive decisions have already been made.
In the Commission’s view, this is a sufficiently compelling reason to not hear this appeal.
Order
The Commission makes the following order:
Pursuant to s 562A(3) of the Industrial Relations Act 2016 (Qld), the Commission will not hear the appeal.
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