Donaldson v TAFE Queensland [2025] QIRC 146

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Donaldson v TAFE Queensland [2025] QIRC 146 PARTIES: Donaldson, Trevor (Appellant) v TAFE Queensland (Respondent) CASE NO: PSA/2025/41 PROCEEDING: Public Sector Appeal – Fair treatment appeal DELIVERED ON: 3 June 2025 MEMBER: HEARD AT: O'Neill IC On the papers ORDERS: 1. Pursuant to s 539(j) of the Industrial Relations Act 2016 (Qld) time be extended for the Appellant to file an appeal of the disciplinary finding decision dated 20 February 2025 until 14 March 2025. 2. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld) the decision in relation to Allegation 1 is confirmed. 3. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) the decision in relation to Allegation 2 is set aside and I return the matter to the decision-maker with a copy of these reasons for fresh consideration. -- 1 of 35 -- 2 CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant is employed by the respondent as a teacher at a TAFE college – where allegations of misconduct made against the appellant – fair treatment appeal against a disciplinary finding – where disciplinary action yet to be taken – where the appellant appeals against the substantiation of the allegations – whether the appellant engaged in the conduct the subject of the allegations – whether the decision to substantiate the allegations was fair and reasonable – the decision was not fair and reasonable LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 91, s 92 Discipline Directive 05/23, cl 7, and cl 9 Code of Conduct for Queensland Public Service 2011 Australian Building and Construction Commissioner v Ingham [2020] FCA 1632 Berenyi v Maynard & Anor [2015] QSC 370 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Coleman v State of Queensland (Department of Education) [2020] QIRC 32 Etherton v Public Service Board of NSW (1983) 3 NSWLR 297 Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2) (2012) 269 FLR 100; [2012] FMCA 349 -- 2 of 35 -- 3 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) Leigh v State of Queensland (Department of Education) [2025] QIRC 23 O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 R v Perrin [2017] QCA 194 Smith v State of Queensland (Queensland Health) [2023] QIRC 296 Taikato v The Queen (1996) 186 CLR 454 Reasons for Decision Introduction [1] Mr Trevor Donaldson ('the Appellant') appeals a decision of TAFE Queensland ('the Respondent') to substantiate allegations against him. [2] The Appellant is permanently employed by the Respondent as a Teacher (Plumbing) for TAFE Queensland, South West Region. [3] On 17 December 2024, the Appellant received a letter from the Respondent advising him that concerns were held regarding his conduct and invited the Appellant to show cause as to why a disciplinary finding should not be made against him ('the show cause letter'). [4] The show cause letter outlined two allegations for the Appellant to respond to. These were as follows: 1. [The Appellant] dishonestly obtained and/or used public/former assets, being a TAFE Queensland 'fire pump' and 'shed', that were previously installed at the Toowoomba Campus, without authority and/or for personal gain. -- 3 of 35 -- 4 2. On 22 April 2024, [the Appellant] inappropriately emailed confidential procurement information (a quote from Gould Industries) to a competitor supplier (Plummit) without approval and/or a genuine business reason. [5] The Appellant provided a response to the Allegations on 20 January 2025. [6] In a disciplinary finding letter dated 20 February 2025, the Respondent advised Mr Donaldson that both allegations had been substantiated and that he was liable for disciplinary action ('the decision letter'). The decision letter contains a proposed disciplinary action of termination of the Appellant's employment. [7] At the time of the preparation of this decision, no decision has been made with respect to the imposition of the proposed disciplinary action. [8] These reasons will only address the disciplinary findings and will not touch upon the proposed disciplinary penalty of termination of the Appellant's employment. [9] The Appellant filed a Notice of Appeal in the Industrial Registry on 14 March 2025, appealing the decision to substantiate the allegations as contained in the correspondence dated 20 February 2025. [10] The issue to be determined in this appeal is whether the disciplinary finding decision dated 20 February 2025, which found the two allegations to be substantiated, was fair and reasonable. [11] For the reasons that follow I am satisfied that the decision to find Allegation 1 to be substantiated was fair and reasonable. I am not satisfied that the decision to find Allegation 2 to be substantiated was fair and reasonable and I set aside the disciplinary finding in relation to Allegation 2. I will return the matter to the decision-maker with a copy of these reasons. The decision letter [12] As noted above the decision-maker's findings were contained in the decision letter dated 20 February 2025. [13] In relation to Allegation 1 the decision-maker made the following findings: • The Appellant admitted to creating a listing using his personal account "Tjd Don" on Facebook Marketplace for a "3 cylinder Diesel fire/transfer pump". • The Appellant confirmed this was the former asset owned by the Respondent (known as the 'Fire Pump'). The Respondent paid for this asset and the garden shed to be removed and disposed of by Plummit as part of the procurement contract for -- 4 of 35 -- 5 the new fire pump. • The Appellant had not provided evidence of having obtained appropriate authority from the Respondent to acquire the former assets. This ought to have been raised with the Appellant's Educational Team Leader and/or the Faculty Director to seek direction as to whether the Appellant's acquisition of them was appropriate, particularly given the Appellant's involvement in the procurement process pertaining to the work being completed at the TAFE Queensland site. • The decision-maker considered that the Appellant had been dishonest in his acquisition of the assets because: o he had been involved in the procurement of the works to be carried out by Plummit; o he had acted as a point of contact for them at campus; o he would have had awareness that the items were to be removed from campus, as this was detailed in the scope of works; o if the Appellant's intent to use the Fire Pump as a 'training aid' was genuine, a reasonable person would have discussed that proposal with their supervisor prior to removing the items from Campus and taking them to the Appellant's personal property; o the Appellant had not, as part of his response, indicated that he held any similar intent for the Garden Shed. • The decision-maker did not accept the Appellant's submission that the Garden Shed 'had no value' at the time that it came into the Appellant's possession, given that he was able to list it on Facebook Marketplace sometime later for a price of $2,500.00 The decision-maker considered that the Garden Shed would therefore have held value at the time of acquisition. • Additionally, the decision-maker did not accept the Appellant's contention that he was 'assisting' Plummit in their disposal of the assets. The decision-maker noted that TAFE Queensland still bore the cost of the removal and disposal of the assets. [14] The decision-maker concluded in relation to Allegation 1 that: Based on the evidence before me, I am satisfied that you did not sufficiently refute the particulars of the allegation. You did not provide any evidence of obtaining appropriate authorisation to remove these former TAFE Queensland assets to your personal property. I consider that you dishonestly obtained the assets by using knowledge obtained as part of your role within TAFE Queensland. I -- 5 of 35 -- 6 am satisfied that the assets were sought and utilised for personal gain, by way of attempting to retrieve a personal financial benefit valued at $5,500 and $2,500 by listing the items on 'Facebook Marketplace'. I remain unconvinced that your intentions were to use the Fire Pump for TAFE Queensland's benefit, particularly given there is no evidence this was discussed with, or approved by, anyone within TAFE Queensland. [15] In relation to Allegation 2, the decision-maker made the following findings: • The Appellant had not provided a reasonable excuse to forward the entire quote document from Gould Instruments to Plummit. • The decision-maker considered other means were appropriately available to assist the Appellant in navigating the installation process, without placing confidential and sensitive information at risk, for example by redaction, or separately providing the relevant information to Plummit. • Plummit and Gould Instruments were competitors because both organisations had the ability to be approached by, and supply, equipment to TAFE Queensland to support plumbing training. • The Appellant was not in a position to make a determination as to whether or not Plummit received a 'commercial advantage' by receiving Gould Industries' confidential information. • The Appellant's actions in sharing Gould Industries' information with Plummit was: o a departure from the expectations placed upon him in relation to fair, equitable and transparent procurement practices; o an inappropriate use of Gould Industries' confidential information; o a breach of the relevant Procurement and Purchasing Procedure of TAFE Queensland. [16] In light of the above findings, the decision-maker found both allegations to be substantiated. Appeal Principles [17] Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.' -- 6 of 35 -- 7 [18] A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the decision-maker.1 [19] The issue for my determination is whether the decision appealed against was fair and reasonable.2 What decisions can the Commission make? [20] Section 562C(1) of the IR Act outlines that the Commission may determine to either: • confirm the decision appealed against; • 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; or • set the decision aside and substitute another decision. Is the Appellant entitled to appeal? [21] A disciplinary finding decision that allegations have been substantiated is not a disciplinary decision as defined in s 129 of the Public Sector Act 2022 (Qld) ('the PS Act'). In the present case disciplinary action has not yet been taken against the Appellant. The Respondent is therefore not correct in asserting in paragraph 15 of its written submissions filed on 14 April 2025 that the appeal should be made pursuant to s 131(c) of the PS Act. [22] Pursuant to s 132(4)(b) of the PS Act, a fair treatment appeal is available regarding a finding made pursuant to s 91 of the PS Act that a disciplinary ground exists for the person.3 [23] Section 131 of the PS Act lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that a fair treatment decision may be appealed. [24] Fair treatment decisions are defined within s 129 of the PS Act, which relevantly states: 129 Definitions for part … fair treatment decision means a decision a public sector employee believes is unfair and unreasonable. 1 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). 2 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA). 3 Section 32(4)(b) of the Public Sector Act 2022 (Qld); see also O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283, [31] (Industrial Commissioner Power). -- 7 of 35 -- 8 [25] The Appellant has been employed by the Respondent at all times relevant to this appeal. [26] I am satisfied that the disciplinary finding decision contained in the decision letter is one that can be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal. Time limit for appeal [27] Section 564(3) of the IR Act requires that the appeal be lodged in the Queensland Industrial Relations Commission within 21 days after the decision being appealed against is made. [28] This meant that the appeal had to be filed on or before 13 March 2025. [29] The Appellant emailed the Industrial Registry on 13 March 2025 attaching his Appeal Notice, but failed to attach a copy of the decision letter to that email. As a consequence of that failure, the Industrial Registry did not accept the appeal for filing that day. [30] This was remedied by the Appellant on 14 March 2025, and on that date the Appeal Notice was filed and accepted by the Industrial Registry. [31] The issue of the appeal being filed one day late has not been raised by the Respondent. [32] I am satisfied that the Appellant has provided an adequate explanation for his failure to file the appeal by 13 March 2025, noting that the Appellant did in fact attempt to file the Appeal Notice on 13 March 2025. [33] I am also satisfied that the Respondent has not, and could not be prejudiced in any way by the late filing of the appeal by one day. [34] I therefore grant the Appellant an extension of time of one day to file the appeal. Relevant Legislation and Policies [35] Section 91 of the PS Act relevantly provides as follows: 91 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— (b) been guilty of misconduct; or … -- 8 of 35 -- 9 (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. … (5) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed. Example of misconduct— victimising another public sector employee in the course of the other employee's employment in the public sector [36] Discipline 05/23 ('Directive 05/23') operated from 1 March 2023 and its purpose is to outline the process for managing disciplinary action in accordance with the PS Act. [37] Clause 9 of Directive 05/23 sets out the disciplinary process. Clause 9.3 sets out the show cause process for a disciplinary finding, and cl 9.4 sets out the process of making a disciplinary finding. [38] Relevantly, cl 9.5 of Directive 05/23 sets out the show cause process for proposed disciplinary action as follows: 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) -- 9 of 35 -- 10 (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/agency 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 7 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. [39] Clause 9.6 of Directive 05/23 provides for the process with respect to making a decision on disciplinary action as follows: 9.6 Decision on disciplinary action (a) the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken (b) the chief executive must inform the employee of the decision in writing, including: (i) the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice (ii) excluding a termination decision, information that the employee may appeal the decision on disciplinary action (iii) for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act -- 10 of 35 -- 11 (c) the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that: (i) the revised disciplinary action is objectively less onerous than the original action proposed, or (ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or (iii) the employee has suggested the disciplinary action as an appropriate alternative penalty (d) disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised. Grounds of Appeal [40] The grounds of appeal outlined by the Appellant in the Notice of Appeal can be summarised as below: • The findings in respect to Allegation 1 were made without sufficient evidence. • The evidence that was available before the decision maker does not support a finding that the Allegations should be substantiated. • The decision was procedurally unfair. Proceedings in the Commission [41] A Directions Order was issued to the parties on 17 March 2025, inviting the provision of written submissions as follows: • Appellant's outline of submissions filed on 31 March 2025. • Respondent's outline of submissions filed on 14 April 2025. • Appellant's reply submissions filed on 22 April 2025. [42] I have considered all of the submissions and attached evidence provided by the parties although they may not be specifically referred to in these reasons. -- 11 of 35 -- 12 Appellant Submissions [43] The Appellant filed his submissions on 31 March 2025. His submissions can be summarised as follows: • In relation to Allegation 1, the Respondent has only made findings regarding seven of the 27 particulars which were outlined in the show cause letter. The Appellant contends that it is neither fair nor reasonable to wholly substantiate an allegation on so few particulars. • The Appellant submits that it is not fair and reasonable to make an assessment as to dishonest intent in circumstances where the decision-maker has not reviewed and made conclusions about the bulk of the particulars where it goes to determining the Appellant's state of mind. • Mr Donaldson contends that it was never explicitly put to him that he dishonestly obtained assets by using knowledge obtained by virtue of his employment. The Appellant submits that the evidence before the decision-maker was not sufficient to meet the definition of 'dishonesty', having regard to the principles contained within Briginshaw v Briginshaw ('Briginshaw').4 • Whilst there is no definition of 'dishonestly' provided for in the PS Act, nor in any Queensland Government policies or directives, the Appellant contends that it is well accepted that dishonesty requires a dishonest mental state. The Appellant then refers to the decision of R v Perrin,5 and submits that this would require the decision-maker to identify an intention or belief or knowledge which makes the act dishonest by ordinary notions and which does not include an intention to defraud. • The Appellant submits that an allegation of dishonesty is an allegation of potential criminal conduct, and the gravity of the consequences flowing from a finding of dishonesty are equally serious. Therefore, the decision-maker needed to take into account the seriousness of the consequences of the finding, the seriousness of the allegation, the quality of evidence and other relevant circumstances. The Appellant contends there was insufficient evidence to support a finding that he was dishonest, having regard to the standard of proof required under Briginshaw. • In relation to Allegation 2, the Respondent in the decision letter states that the conduct of sharing procurement information with a competitor is a breach of the TAFE Queensland procurement and Purchasing Procedure. In response to this, Mr Donaldson contends that he had never received training or information outlining 4 (1938) 60 CLR 336. 5 [2017] QCA 194, [72]-[76]. -- 12 of 35 -- 13 the procedure or any expectations placed on him in relation to procurement practices. • The Appellant submits that sections 5.4 and 5.5 of the procedure relied on by the Respondent states that TAFE Directors, Managers and Supervisors are responsible for ensuring staff are aware of and comply with the procurement practices. • The Appellant contends that it was unfair and unreasonable to make a finding that the Appellant acted inappropriately, and that the Appellant ought to have been aware of its procurement expectations and procedures in circumstances where TAFE Queensland had failed in its obligations to provide him, as a teacher, with training about its procurement practices. [44] The Respondent filed their submissions in the Industrial Registry on 14 April 2025. Their submissions can be summarised as follows: • The Respondent cites Directive 05/23 and the TAFE Queensland 's Discipline Procedure ('the Discipline Procedure') and contends that the correct appeal ground is s 131(c) of the PS Act. • The Respondent rejects that the decision was not fair and reasonable and submits that it was reasonably open to the decision maker to make a finding that each allegation was capable of substantiation on the balance of probabilities. • The Respondent submits that all evidence including the Appellant's response to the allegations were duly considered in making the findings. • In response to the Appellant's claim that it was not fair and reasonable to substantiate an allegation on so few particulars, the Respondent contends that all particulars were fully considered, and that the standard of proof was met. The Respondent further submits that the Appellant's claim lacks foundation, particularly since the specifics relied upon were not adequately disputed in the Appellant's show cause response. Further, the Respondent contends that the Appellant made admissions to several factual elements of the alleged conduct, including the following: a) Discussed the need to upgrade the fire pump with the plumbing team; b) Was the only knowledgeable plumbing teacher at TAFE Toowoomba, hence tasked with obtaining quotes for the new pump; c) Received a quote and email from the Contractor in April 2024; d) Communicated the scope of works for the initial quote to the Contractor; e) Reviewed the quote to ensure it met the new training package requirements; f) Acted on behalf of the team and managers in the decision-making process; g) Listed the Assets for sale on Facebook; h) Claimed the Garden shed was offered by the Contractor to avoid disposal costs; i) Took the old pump and shed to their family farm; -- 13 of 35 -- 14 j) Used the pump as a teaching aid before deciding to sell it; k) Repaired and listed the shed for sale on Facebook; l) At no time said anything about the pump before it was posted on Facebook; m) Recognised that his actions could be perceived as improper. • The Respondent further submits that Allegation 1 was supported by a credible witness statement made by a TAFE Queensland student, which raised that the Appellant had discussed the removal and disposal of the fire pump with students, and the corresponding Facebook Marketplace listing was reported. • In response to the Appellant's assertion that the decision maker ought not to be able to make a determination in relation to his 'dishonesty', the Respondent quotes a section contained in R v Perrin, which was relied on by the Appellant. The relevant section they refer to states "intention to defraud is a subjective state of mind of the accused, but to be assessed as dishonest according to the standards of ordinary, decent people, an objective test".6 • The Respondent contends that the Appellant's conduct can reasonably be characterised as 'dishonest'. This is based on the ordinary meaning of the word which includes "in a way that is not honest7" or "in a way that is not honest or fair, deceitfully or fraudulently".8 • The Respondent contends that the decision-maker reasonably interpreted the concealment of the Appellant's actions related to the assets as 'dishonest'. The Respondent submits that the lack of honesty and transparency, along with insufficient evidence of the Appellant's claimed intent, supports this view. The Respondent therefore contends that it was fair and reasonable for the decision- maker to find that Allegation 1 was substantiated, and that finding was not based on 'mere speculation' as suggested by the Appellant. • As regards Allegation 2, in response to the Appellant's assertion that he was not trained in fair, transparent and equitable procurement practices, the Respondent contends that Mr Donaldson was adequately trained in the principles of the Code of Conduct for the Queensland Public Service ('Code of Conduct') which the Respondent submits mandates transparency and integrity in decision-making. • The Respondent contends that Allegation 2 is not a breach of procurement practices, but rather a contravention of section 91(1)(b) of the PS Act on the grounds that the substantiated allegation was determined as 'misconduct' within the meaning of inappropriate or improper conduct in an official capacity. 6 R v Perrin [2017] QCA 194, [80]. 7 Cambridge Dictionary (online at 2 June 2025) 'dishonestly'. 8 Collins Dictionary (online at 2 June 2025) 'dishonestly'. -- 14 of 35 -- 15 • Further the Respondent submits that the Appellant did not raise this point in his Show Cause response and therefore it is unjustifiable to claim that the decision maker erred by not considering lack of training as a causal factor. • The Respondent also submits that the Appellant failed to refute Allegation 2 as a whole, and did not provide a reasonable explanation, nor genuine business reason for sending the entirety of the confidential quote of a competitor supplier to the Contractor. Appellant's Reply Submissions [45] The Appellant filed his reply submissions in the Industrial Registry on 22 April 2025. His submissions can be summarised as follows: • The Appellant contends that he never received a quote and email from the contractor, Plummit. • In response to the Respondent's assertion that they relied on a 'credible witness statement', the Appellant submits that there is no corroborative evidence nor any identified evidence relied upon to support a finding that the witness statement is 'credible' or more reliable than the Appellant's clear denial. • The Appellant further submits that no explanation has been provided by the decision-maker as to why the decision-maker has preferred the evidence of the unnamed student over that of the Appellant. The Appellant contends that relying on what is merely an unsubstantiated opinion in this context is unfair and unreasonable. The Appellant further contends that it is untenable to suggest that such evidence supports a reasonable and definite inference of the Appellant's "guilt". • The Appellant submits that on the totality of the evidence, it is neither fair nor reasonable for the decision maker to make a finding of dishonesty. Mr Donaldson contends that there is no evidence to suggest that he took any steps to deceive or hide his conduct. The Appellant rejects that a lack of communication is indicative of an intent to conceal his actions, or that the absence of self-disclosure amounts to a lack of transparency. • In response to the Respondent's submissions regarding the Appellant not previously raising issues regarding a lack of training, Mr Donaldson contends that it is unreasonable to posit that the lack of training is irrelevant to substantiating the allegation. -- 15 of 35 -- 16 Consideration [46] I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at. [47] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)9 ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.10 [48] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.11 His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.12 Decision to substantiate the allegations Allegation 1 [49] This allegation alleges that the Appellant has dishonestly obtained and/or used public/former assets, being the 'fire pump' and 'shed'. [50] This allegation amounts to an allegation of misappropriation or theft of TAFE assets by the Appellant. [51] In the Appeal Notice, the Appellant alleges that the finding in relation to Allegation 1 was made without sufficient evidence and the evidence before the decision maker did not support a conclusion of dishonesty. [52] In his submissions, the Appellant has developed (perhaps not to their full extent) a number of arguments or contentions as to why the decision to find Allegation 1 to be substantiated was not fair and reasonable. I will address each of those arguments in the following sections. Insufficient evidence to support a finding that the Appellant was dishonest 9 [2022] QIRC 16. 10 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 11 Colebourne (n 15) at [21]-[22] and [25]. 12 Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the 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. -- 16 of 35 -- 17 [53] The finding by the delegated decision-maker that she was satisfied that the Appellant acted dishonestly in obtaining TAFE's former assets appears to have been a significant factor in her finding not only that Allegation 1 was substantiated, but that also the Appellant's conduct amounted to misconduct for the purposes of s91(1)(b) of the PS Act. [54] The Appellant has challenged the finding that he acted dishonestly in taking possession of the former TAFE assets. He asserts in his submissions that he has not acted dishonestly. [55] As noted above, the allegation that the Appellant has dishonestly obtained the former TAFE assets is a serious allegation which implies misappropriation or theft of TAFE property by the Appellant. The Appellant in his submissions contends that an allegation of dishonesty is an allegation of potential criminal conduct, and the gravity of the consequences flowing from a finding of dishonesty are equally serious. As a consequence, the Appellant contends that the principle in Briginshaw v Briginshaw13, applies and that there must be clear, cogent and convincing evidence before a finding of serious misconduct can be made. [56] I addressed the issue of the relevant standard of proof required in the course of a public sector disciplinary process in Leigh v State of Queensland (Department of Education)14 as follows: [93] Dixon J observed that in civil cases the degree of satisfaction may depend on the nature of the issue at hand. His Honour (in an oft quoted passage) said (emphasis added): Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding, are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters “reasonable satisfaction” should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Every one must feel that when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.15 [94] The High Court returned to this topic in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd,16 where the plurality of Mason CJ, Brennan, Deane and Gaudron JJ observed: 13 [1938] HCA 34. 14 [2025] QIRC 023. 15 Briginshaw v Briginshaw [1938] HCA 34. 16 (1992) 110 ALR 449. -- 17 of 35 -- 18 The ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove. Thus, authoritative statements have often been made to the effect that clear or cogent or strict proof is necessary 'where so serious a matter as fraud is to be found'. Statements to that effect should not, however, be understood as directed to the standard of proof. Rather, they should be understood as merely reflecting a conventional perception that members of our society do not ordinarily engage in fraudulent or criminal conduct and a judicial approach that a court should not lightly make a finding that, on the balance of probabilities, a party to civil litigation has been guilty of such conduct. As Dixon J commented in Briginshaw v Briginshaw: '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'.17 [95] The relevant standard of proof for this appeal remains the civil standard of balance of probabilities or reasonable satisfaction, however, if the Briginshaw principle is applied, the "clarity" or "cogency" of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations.18 [57] Given the nature of the allegations against the Appellant, I am satisfied that Briginshaw applies to the circumstances of this appeal. [58] In his appeal submission the Appellant contends that there is no definition of "dishonestly" or "dishonest" provided by the PS Act, nor in the Code of Conduct, nor in any directives published by the Public Sector Commission. [59] The Appellant goes on to submit "dishonesty" requires a dishonest mental state. The Appellant then contends that in order for the decision-maker to determine dishonesty, it necessitates that the decision-maker identifies an intention or belief or knowledge which makes the act "dishonest by ordinary notions".19 [60] The Respondent, in responding to this argument in its reply submissions, notes that in R v Perrin20, Morrison JA confirmed that the act must be shown to be dishonest according to ordinary notions, that is, to be decided by the standards of ordinary, decent people. [61] Both parties have made reference to the Perrin decision, which I note involved an appeal to the Court of Appeal in a criminal matter where the burden of proof was beyond 17 Briginshaw v Briginshaw [1938] HCA 34. 18 Briginshaw v Briginshaw [1938] HCA 34; Refjek v McElroy (1965) 112 CLR 517 at 521. 19 See R v Perrin [2017] QCA 194 at [72]-[76] and [80]. 20 [2017] QCA 194 at [80] per Morrison JA. -- 18 of 35 -- 19 reasonable doubt in relation to multiple charges of aggravated fraud and aggravated forgery. [62] The present case involves a review of a finding by the decision-maker in a disciplinary process where the burden of proof remains on the balance of probabilities, albeit with application of the Briginshaw principle in light of the serious nature of the allegations of misconduct by the Appellant. [63] The Respondent in its submissions points to the facts/findings I have excerpted in paragraph 44 from a) to m) as matters that the Appellant had effectively admitted to which supported the findings by the decision-maker. [64] The Respondent in paragraph [28] of its written submissions contends that the Appellant's conduct in obtaining the assets can reasonably be characterised as "dishonest" based on the ordinary meaning of the word which includes: • "in a way that is not honest";21 • or "in a way that is not honest or fair, deceitfully or fraudulently".22 [65] It is then necessary to examine the actions of the Appellant to determine whether those actions could be shown to be dishonest according to standards of ordinary, decent people. [66] In determining whether the actions of the Appellant were dishonest, in my opinion there are a number of undisputed facts which assist in determining that issue. I consider those to be as follows: • The Appellant holds a permanent position as a teacher within TAFE Queensland and has done so for a number of years prior to the events in 2024. • The Appellant is the only plumbing teacher at TAFE Toowoomba who had knowledge and experience in the operation and maintenance of a fire hydrant pump. He was therefore requested to obtain three quotes for the purchase and installation of a new fire pump at the TAFE Toowoomba campus. • The Appellant's involvement in the procurement process continued in 2024 following the procurement process being re-initiated. The Appellant's involvement in the process commenced after a second quote was received from Plummit on 11 21 Cambridge Dictionary (online at 2 June 2025) 'dishonestly'. 22 Collins Dictionary (online at 2 June 2025) 'dishonestly'. -- 19 of 35 -- 20 April 2024 which was also sent to the Appellant.23 • The Appellant was the main point of contact between TAFE Toowoomba and Plummit for the installation of the fire pump.24 The Appellant confirmed that he did have interactions with Plummit staff after May 2024, including Mr Densley, in connection with the installation process.25 • The Appellant's involvement with Mr Densley from Plummit as part of the installation process included (as part of the plumbing team) showing Mr Densley the potential installation site on the TAFE Toowoomba Campus, and speaking to, or emailing Mr Densley a few times during the installation process, and in connection with the final stage of the process through to about October 2024.26 • In relation to the supply and installation of the BBK fire pump by Plummit to TAFE Toowoomba, the Appellant signed a conflict of interest form on 20 May 2024 which included the following term: … (c) I acknowledge that the following are some examples of situations where a Conflict of Interest can occur: (i) where I receive any form of benefit, including a pecuniary interest, sponsored travel, a gift, hospitality from a party that is tendering for TAFE Queensland's work ("Offeror"); …27 • The Appellant had a discussion with a representative from Plummit in which he asked if he could have the fire pump from the TAFE Toowoomba Campus. • The Appellant took possession of both the fire pump and the garden shed which were formerly installed at the TAFE Toowoomba Campus. • The fire pump and garden shed were removed to the Appellant's farm property. • There is no evidence of the Appellant raising with TAFE management of his intention to take possession of the fire pump and the garden shed prior to its removal. • There is no evidence of the Appellant seeking permission or authority to take possession of the fire pump and garden shed, from his line manager or any other management representative from TAFE, either prior to taking possession of the fire 23 Appellant's Outline of Submissions, Annexure 2 (Show Cause Response letter dated 21 January 2025), page 4, [6]. 24 Ibid, page 7, [22]. 25 Show Cause Response Letter dated 21 January 2025, page 9, [49]. 26 Ibid, pages 9-10, [50]. 27 Show Cause Letter dated 17 December 2024, Attachment 10. -- 20 of 35 -- 21 pump or at the time of taking possession of the assets. • There is no evidence of the Appellant seeking permission or authority from his line manager or other TAFE management to take the fire pump and the garden shed to his farm property. • There is no evidence of the Appellant informing his line manager or anyone else from TAFE that he had taken possession of the fire pump and garden shed in the weeks following this occurring. • There is no evidence of the Appellant informing his line manager or other teaching staff in the plumbing team of his thought/intention to use the wet end from the fire pump as a training aid. • There is no evidence of the Appellant seeking permission or authority to use the wet end from the fire pump removed from the TAFE Toowoomba Campus as a training aid. • The Appellant listed both the fire pump and the garden shed on Facebook Marketplace and thereby he intended to obtain a personal benefit from the sale of these assets. The garden shed was listed for sale at a price of $2,500.00. The fire pump was initially listed for sale at a price of $6,500.00 which was later dropped to $5,500.00 and then $2,500.00. • There is no evidence of the Appellant informing his line manager or other management at TAFE Toowoomba of his intention to sell the assets, nor is there any evidence of him seeking permission to do so. [67] The Appellant in his show cause response dated 21 January 2025 confirms that his attempts to sell the garden shed were unsuccessful, and that the garden shed remains on his farm. The Appellant makes no mention of what occurred with the fire pump, so presumably he was successful in selling this. [68] In addition, the Appellant in his show cause response ultimately concedes in relation to Allegation 1 that he now fully recognises that his actions could reasonably give rise to perceptions of impropriety or misuse of position by persons who did not have knowledge of the contract in place with Plummit or who were not part of any conversation that he had outside of the TAFE Queensland grounds with a Plummit worker.28 [69] On the basis of the facts set out above, the large majority of which are either admitted, or not disputed by the Appellant, in my view there is clear and cogent evidence sufficient to satisfy the Briginshaw principle that the Appellant had obtained and/or used 28 Show Cause Response letter dated 21 January 2025, page 14, [93]. -- 21 of 35 -- 22 public/former assets being the TAFE fire pump and garden shed, without authority, and for personal gain. [70] If that were the extent of the allegation, it was clearly made out on the evidence available to the decision-maker and it was open to the decision-maker to make those findings. [71] In framing the allegation, however, the decision-maker has added that the Appellant undertook the actions forming the basis of Allegation 1 dishonestly. [72] From the Appellant's response to the show cause notice and his submissions provided in support of the appeal, it appears that he defends the allegation of dishonesty on the following grounds: • the evidence available to the decision-maker was not sufficient to support a finding of dishonesty. • His taking possession of the fire pump and garden shed in the circumstances he outlines in his show cause response was opportunistic and done without dishonest intent. The Appellant appears to place some weight on the fact that on his version the conversation with the Plummit worker occurred after the assets had been removed from TAFE property and that the conversation also occurred outside of the TAFE Campus. • His first thought was to utilise the wet end from the pump as a training aid and in fact did so on one occasion. • It was only after he made repairs to the fire pump and got it working, and made repairs to the garden shed that he decided to sell both items on Facebook Marketplace. • The Appellant contends that he took no action to deceive or hide his conduct, noting that he listed the assets on a public and commonly used marketplace linked to his social media account that contained identifying details. [73] In Australian Building and Construction Commissioner v Ingham,29 his Honour Rangiah J provided the following commentary regarding the circumstances in which it is appropriate for a decision maker to draw an inference from facts before the decision maker: The facts proved must give rise to a reasonable and definite inference, not merely to conflicting inferences of equal degree of probability so that the choice between them is a mere matter of conjecture …30 29 [2020] FCA 1632. 30 Ibid, [136] per Rangiah J. -- 22 of 35 -- 23 [74] Essentially, what this means is that for the delegated decision-maker in the present case to be able to draw an inference of dishonesty on the part of the Appellant, it is necessary that the proven facts point to that conclusion as a definite inference. [75] If the Appellant's explanation as to how he came into possession of the assets is accepted, it still appears that: • Despite the assets being removed from the Toowoomba TAFE Campus, the assets remained public assets owned by TAFE. The fact that they had been removed from the campus did not act to transfer ownership in the assets to Plummit. • An opportunistic taking or acquisition of assets can still be dishonest, an example of this would be stealing by finding. • The fact that the conversation with the Plummit representative allegedly occurs outside the TAFE campus is in my view irrelevant as to whether there has been a dishonest taking of the assets by the Appellant. [76] The Appellant had signed a conflict of interest form in relation to this very transaction (involving Plummit), approximately three months earlier in which he acknowledged that it could be a conflict of interest where he received any form of benefit, including a pecuniary interest or a gift from Plummit, who had successfully tendered for the supply and installation of the new fire pump. [77] The Appellant knew the assets were public assets. It is also clear that both the old fire pump and the garden shed had some value, even just as scrap. [78] The Appellant has not indicated that he was unaware of the necessity to obtain permission to take possession of the assets. The Appellant has not provided any explanation for his failure (at any time, and either before or after taking possession of the assets) to inform TAFE management: • Firstly, of his intention to take possession of both assets; • Secondly, of the fact that he had taken possession of both assets. [79] The Appellant has also failed to provide any convincing explanation for his failure to seek permission or authority to take the assets. [80] Finally, the Appellant failed to inform TAFE management of the fact that he had listed both assets for sale. He also failed to seek permission to do so. [81] On an objective assessment of the conduct of the Appellant according to the standards of ordinary, decent people, I believe it was open to the decision-maker to find that the -- 23 of 35 -- 24 Appellant had not acted honestly in taking the assets. This was an inference that was clearly open on the facts that I have found established as set out in paragraph [66] above. [82] I am satisfied that it was open to the decision-maker on the evidence available to substantiate Allegation 1. Particulars of Allegation 1 [83] In his submissions filed on 31 March 2025, the Appellant makes specific note that the decision-maker provided 27 particulars in support of Allegation 1 in the show cause letter dated 17 December 2025.31 The Appellant goes on to note that the decision-maker only made findings in respect of seven of those particulars.32 [84] The Appellant goes on to submit that the show cause letter included several particulars that concerned the extent of the Appellant's involvement in the procurement process and were relevant to making a finding as to whether the Appellant had a dishonest intent. The Appellant submits that it is not fair and reasonable to make an assessment as to dishonesty, in circumstances where the decision-maker has not reviewed and made conclusions about the bulk of the particulars, all of which might be relevant to determining the Appellant's relevant state of mind.33 [85] For the reasons I have set out above, I am satisfied that the decision-maker has set out a sufficient basis in the decision letter for Allegation 1 having been substantiated and the particulars relied upon (including admissions made by the Appellant) in reaching that finding. The finding of misconduct [86] On the basis of the substantiated allegation, the decision-maker determined that the Appellant had contravened s 91(1)(b) of the PS Act, on the grounds of misconduct. [87] Section 91(1)(b) of the PS Act provides that a public service employee may be disciplined if the chief executive is reasonably satisfied that the employee is guilty of misconduct. [88] "Misconduct" is defined in s 91(5) of the PS Act as "inappropriate or improper conduct in an official capacity or inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed". 31 Appellant's submissions filed 31 March 2025, [21]. 32 Ibid. 33 Ibid. -- 24 of 35 -- 25 [89] The issue of what constitutes misconduct for the purposes of the PS Act was considered by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman').34 In that matter, his Honour noted that the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct within the definition of misconduct in s 91(5). [90] After considering the observations of Justice Daubney in Mathieu v Higgins,35 his Honour in Coleman provided the following commentary on the meaning of 'misconduct' in the former iteration of the PS Act: 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.36 [91] I am satisfied that the actions of the Appellant which have found to be substantiated in relation to Allegation 1 constitute a deliberate departure from accepted standards, or an abuse of the privilege and confidence enjoyed by a public service employee. In my view there was a sound basis for the decision-maker to find that there had been "misconduct" within the meaning of s 91(1)(b) of the PS Act. Allegation 2 [92] This allegation related to the conduct of the Appellant on 22 April 2024 in emailing confidential procurement information to a competitor supplier without approval and/or a genuine business reason. The email was sent by the Appellant to Mr Darren Densley, the Owner/Director of Plummit at his email address. [93] In the show cause correspondence dated 17 December 2024 it was alleged that there was no evidence that the Appellant's sending of the Gould Industries quote to Mr Densley was authorised or for a legitimate TAFE Queensland work purpose. [94] The email sent by the Appellant to Mr Densely on 22 April 2024 was attached to the show cause correspondence.37 [95] An email from Michelle Battersby, Procurement Officer, TAFE Queensland dated 29 November 202438 confirms that she was requested to procure Hydrant Flow Testers for 5 regions (including Toowoomba) and she received quotes from two suppliers Flame Stop Queensland and Gould Instruments on 25 and 28 March 2024 respectively. Ms Battersby in that email goes on to confirm: 34 [2020] QIRC 032. 35 [2008] QSC 209. 36 Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62] per Merrell DP. 37 Show cause correspondence dated 17 December 2024, Attachment 18 – email dated 22 April 2024. 38 Ibid, Attachment 20. -- 25 of 35 -- 26 • The evaluation panel for the quotes did not include the Appellant. Mr Andrew Thwaite was the representative from TAFE Queensland Southwest on the evaluation panel. • The Appellant did provide some input into the selection, in which he noted concerns about the Gould Instrument flow tester due to calibration issues. • Mr Thwaite endorsed the purchase of this flow tester on 22 April 2024, the same day that the Appellant forwarded the Gould Instruments quote to Mr Densley. • From a procurement perspective, it is not appropriate at all to send a competitors quote to a supplier. Ms Battersby was not aware that the Appellant had spoken to Plummit nor forwarded the quote to him (Mr Densley). [96] The other evidence said to be relevant to this allegation was as follows: • An email exchange between the Appellant and Darren Densley from Plummit dated 22 and 23 October 2024 which appears to relate to testing equipment and logbooks for the new system being installed at the TAFE campus.39 • An email from Ms Robyn Allen, Manager, Procurement and Purchasing dated 2 December 2024 in which she records: 40 This is a truly disturbing and disappointing action by Trevor and definitely breaches procurement policy and procedure – throw performance and code of conduct in there and it's the perfect storm. … The risk that he has placed on TAFE's reputation cannot be understated. We strive to deal fairly, compliantly and transparently with all our suppliers, as per the Queensland Procurement Policy, and our own framework. Suppliers need to be able to trust that we will keep their information as commercial in confidence at all times. [97] The Appellant provided his response to the show cause correspondence on 21 January 2025.41 In relation to Allegation 2 the Appellant contended: • Gould Industries was not a competitor for Plummit because Plummit is a fire protection plumbing installation business, and was not involved in manufacturing, whereas Gould Industries is an instrumentation manufacturer of flowmeters and testing instruments. 39 Show cause correspondence dated 17 December 2024, Attachment 19. 40 Ibid, Attachment 20. 41 Show Cause Response dated 21 January 2025. -- 26 of 35 -- 27 • A company like Plummit would not ordinarily supply the testing equipment provided by Gould Instruments. Plummit received no commercial advantage by receiving the quote. • The Appellant's reason for providing the quote to Plummit was to ensure that the installation process was smooth and no further delays were encountered. He noted that Plummit was installing all of the items that connect before and after the Gould device. His response notes as follows: 103. Not one member of the plumbing team had experience working with Gould Instruments products, including the Hydrant Pro Digital Electromagnetic Fire Hydrant Flowmeter (GI-HPS00) and the Next Generation High Accuracy Ultrasonic Digital Fire Hose Reel Flowmeter (GI-DFHRFM 1 & 2). 104. Because of this, we did not know whether we needed Plummit to provide any additional equipment or services to work with the items provided by Gould Instruments. I emailed Plummit so they were aware of what equipment they would be working with and to identify if there was anything we needed to know about. 105. Mr Densley then contacted told me that one of the devices provided by Gould Instruments did not include a Queensland Fire Brigade Tread. This is atypical. I called Gould Instruments. They confirmed that whilst the tread was not included in the quote, they could provide it. I accordingly asked them to amend the quote. Had I not provided sought advice from Mr Densley, there may have been a further delay as Plummit would not have been able to finish the work without the Tread. 106. My only purpose in sending the information to Plummit was to provide that link between the equipment being supplied and the installers to identify any potential problems. I simply sent through to the complete bundle of information I already had about the Gould Instruments. When I was doing that I did not think about the confidentiality of the price information contained in those documents. 107. Even though there could not be any commercial advantage to Plummit in connection with those quotes obtained by TAFE Queensland's procurement team. I did not think about confidentiality when I was sending the documents to Plummit because I was only doing it to assist the installation process. I did not think I needed to obtain any approval before contacting Plummit for that purpose. I was unaware that there was confidential information that I should have removed or redacted. [98] The Appellant's show cause response therefore contained admissions to the conduct of forwarding the email containing the Gould Instruments quote to Mr Densley and that the information forwarded contained commercially confidential quote information relating to pricing. [99] The Appellant in his submissions contends that the decision to substantiate Allegation 2 was not fair and reasonable because he had not received appropriate training in TAFE procurement practices and as a consequence, it was unfair to find that he had acted inappropriately, and that he ought to have been aware of TAFE's procurement expectations and procedures. -- 27 of 35 -- 28 [100] The Respondent in its submissions provides two responses to this contention by the Appellant: • Firstly, the Respondent submits that the breach outlined for Allegation 2 was not a breach of procurement practices, but rather a contravention of s 91(1)(b) of the PS Act, on the grounds that the substantiated allegation was determined to be 'misconduct' within the meaning of inappropriate or improper conduct in an official capacity. The Respondent submits that the lack of training was irrelevant to the substantiation of Allegation 2. • Secondly, the Respondent notes that the Appellant's show cause response did not raise the issue of the alleged lack of training as the cause of his conduct. The Respondent notes the admission made by the Respondent that he 'did not consider' the confidentiality of the quote document before sending it to the Contractor. [101] In his reply submissions, the Appellant contends that the finding of misconduct is predicated on the decision-maker's finding that the Appellant's conduct the subject of Allegation 2 constituted a "departure from the expectations placed upon [the Appellant] in relation to fair, equitable and transparent procurement practices … and is a reach of the relevant Procurement and Purchasing Procedure of TAFE Queensland." [102] The Appellant contends that it was patently unfair and unreasonable to posit that the lack of training is irrelevant to the substantiation of the allegation in this context. [103] The Appellant further contends that he had submitted a reasonable explanation, if not a genuine business reason, as set out in the excerpts from his show cause response provided above. [104] There appears to be a number of difficulties with the position adopted by the Respondent as set out in paragraph [100] above. [105] Firstly, when one considers the contents of the decision letter dated 20 February 2025 in relation to Allegation 2, the decision-maker has clearly stated: Your action in sharing Gould Industries' information with Plummit is a departure from the expectations placed upon you in relation to fair, equitable and transparent procurement practices, is an inappropriate use of Gould Industries' confidential information, and is a breach of the relevant Procurement and Purchasing Procedure of TAFE Queensland. (emphasis added) Overall, I find that you have not adequately refuted the evidence presented in the particulars of Allegation 2. It is clear that you sent the email to Plummit on 22 April 2024, without providing evidence of your authority to share Gould Industries' confidential information with them. Additionally, you did not demonstrate a legitimate business reason for sending the entire quote, which included confidential pricing and contact details of Gould Industries. Sharing this information with Plummit was inappropriate and unnecessary for their purposes. (emphasis added) -- 28 of 35 -- 29 In my review of the evidentiary material available to me, including your Response, I find that, on the balance of probabilities, Allegation 2 is substantiated. [106] Objectively reading the decision letter, it is difficult to avoid a conclusion that the decision-maker has in fact relied upon findings that the Appellant breached the relevant Procurement and Purchasing Procedure of TAFE Queensland and by his actions departed form the fair, equitable and transparent procurement practices as at least part of the basis for finding Allegation 2 was substantiated. [107] The proximity of the first paragraph excerpted in paragraph [105] above, to the second and third paragraphs setting out the reasons for the allegation being substantiated, and that factual finding reinforces this conclusion. [108] I therefore do not believe it is open for the Respondent to assert that the alleged breach by the Appellant was a contravention of s 91(1)(b) of the PS Act, on the grounds that the substantiated allegation was determined to be 'misconduct' within the meaning of inappropriate or improper conduct in an official capacity. [109] Secondly, there is a difficulty about the particularisation of Allegation 2 in the show cause letter dated 17 December 2024. In that correspondence, the particulars of Allegation 2 were contained in four dot points at the base of page 4 and the top of page 5. The particulars provided did not allege that the Appellant had breached TAFE's Procurement and Purchasing Procedure. Further, the particulars did not allege that the Appellant's actions departed from "fair, equitable and transparent procurement practices". [110] It is vital in providing procedural fairness to an employee in a disciplinary proceeding that the allegations he or she has to answer are fully and appropriately particularised in such a way that the Appellant is apprised of the case that they have to meet. [111] This point was made clearly by his Honour Hunt J in Etherton v Public Service Board (NSW) ('Etherton').42 In Etherton, the charge against Mr Etherton was expressed in the following way: It has been alleged that you are guilty of a breach of discipline within the meaning of par (e) of s 85 of the Public Service Act, 1979, namely negligence, carelessness, inefficiency and incompetence in the discharge of your duties. The particulars of this breach are that you failed to carry out your duties as a senior district officer, Bondi Junction Community Welfare Office, Department of Youth and Community Services, in a satisfactory manner.43 42 [1983] 3 NSWLR 297. 43 Ibid, at 299. -- 29 of 35 -- 30 [112] The show cause correspondence required Mr Etherton to respond within three days in writing either admitting or denying the charge. [113] Mr Etherton requested further particulars from the Board regarding the allegation, however, these were refused by the Board. Instead, the Board advised that the case against Mr Etherton would be based on the following matters: • Mr Etherton's performance in the case work relating to G, N, B, L, N, J, C, H, and S families; and • Mr Etherton's handling of an application for a license by Ms JHW. This should not be regarded as an exhaustive list of the matters to be raised. Mr Etherton or his representative is welcome to inspect the Board's file on this matter at any time.44 [114] The Board contended it was not obliged to identify the precise acts or omissions of Mr Etherton that it relied on to establish the charge against him and that he should 'be able to work out for himself the case which he had to meet.'45 Hunt J undertook a thorough and detailed review of the relevant authorities, and held that the Board was required “to identify with precision” what was said to have been the “negligent, careless, inefficient or incompetent discharge of the officer’s duties.46 In that context, his Honour held: In my view, therefore, the plaintiff was entitled to particulars of the specific acts or omissions relied upon to establish the charge against him and to have identified for him specifically whether he is alleged in relation to each such act or omission to have been negligent, careless, inefficient or incompetent. [115] In Berenyi v Maynard & Anor,47 her Honour Philippides JA in determining a judicial review application which dealt with the termination of Ms Berenyi's employment following a disciplinary process conducted under the Public Service Act 2008 observed as follows regarding the obligation to provide sufficient particulars of a charge: [80] There can be no doubt that natural justice imposes an obligation on an administrative tribunal hearing a disciplinary charge, where dismissal may result on the charge being made out, to furnish particulars of the charge of breach of discipline: see R v Little; Ex parte Fong [1983] 1 VR 237. As Street CJ observed in Public Service Board (NSW) v Etherton (1985) 1 NSWLR 430 at 432 (endorsing the decision of Hunt J in Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 at 307[8]), the requirements of natural justice impose an obligation on a prosecuting authority (in that case the Public Service Board hearing disciplinary charge) to furnish such particulars as will fairly enable the accused person to understand and to meet the case being made against him. Likewise, Samuels JA (at 434) stated, “I know of no ground in principle or authority which exempts the Public Service Board from compliance with those principles of natural justice which entail that an 44 Ibid, at 300. 45 Ibid, at 301. See also 305-306. 46 Ibid, at 306. 47 [2015] QSC 370. -- 30 of 35 -- 31 accused person must be informed of the nature of the case which is sought to be made against him.48 [116] The failure by the Respondent to particularise Allegation 2 to include the particulars regarding the TAFE Procurement and Purchasing Procedure and that the Appellant's actions departed from "fair, equitable and transparent procurement practices" effectively denied the Appellant the opportunity of providing information relevant to these particulars (for example his contentions regarding a lack of training) prior to the decision- maker finding Allegation 2 to be substantiated. Given this, I am satisfied that the substantiation of Allegation 2 was not fair and reasonable. [117] The third issue with the Respondent's response as summarised in paragraph [100] above, is that the Respondent attempts to argue that the Appellant should be prevented from maintaining his argument about a lack of training in TAFE's procurement procedures as an exculpatory factor because he did not include this information in his response to the show cause letter dated 17 December 2024. [118] I am satisfied that the reason why the Appellant failed to provide this information in his response to the show cause letter was because the Appellant failed to appropriately particularise Allegation 2 as noted above. [119] As a consequence of this, the Appellant was not on notice about the allegation regarding procurement policies and procedures. Given this, the point taken by the Respondent in its submissions dated 14 April 2025 is particularly unfair. In my view this reinforces the finding that the substantiation of Allegation 2 in these circumstances was not fair and reasonable. [120] There is an additional difficulty with the manner in which the Respondent particularised Allegation 2 in the show cause correspondence dated 17 December 2024. The third dot point particular for Allegation 2 provided as follows: On 22 and 23 October 2024, you and Mr Densley exchanged emails about equipment being supplied to TAFE Queensland, including information about ongoing maintenance of this equipment through 'Plummit'. [121] It is difficult to see what possible relevance this particular has to an allegation regarding alleged misconduct committed by the Appellant in forwarding the email to Plummit on 22 April 2024 some six months prior to the email communication in October 2024. [122] Clause 9.3(b) of the Discipline Directive confirms that written details of each allegation in clause 9.3(a) must include: (ii) the particulars of the facts considered by the chief executive for the allegation. 48 Ibid, at [80]. -- 31 of 35 -- 32 [123] In Smith v State of Queensland (Queensland Health),49 Deputy President Merrell in the context of a reinstatement application addressed a show cause notice which contained irrelevant material in the allegations and material said to be particulars which did not bear any relationship to the allegations which formed the substance of the show cause notice. [124] His Honour noted that the drafter of the first allegation (the Investigator) conflated the allegation and the particulars of the allegation and included in paragraph (e), irrelevant and non-factual material.50 His Honour concluded: [112] The Department, in conducting the show cause process for the disciplinary finding against Mr Smith, should have complied with cl 8.3 of the Directive. Agencies, in conducting a show cause process for a disciplinary finding, must comply with the equivalent provision in the current applicable directive. [125] No explanation was provided in the show cause letter by the delegated decision-maker as to the relevance to Allegation 2 of the particulars regarding the October 2024 email exchange between the Appellant and Mr Densley from Plummit. [126] In his show cause response dated 21 January 2025,51 the Appellant expresses some confusion about this particular and states that he cannot identify the relevance of an unrelated email exchange in October 2024 to Allegation 2. The Appellant further notes that there is no allegation connected with the email exchange. [127] The Appellant goes on to explain the purpose of the email exchanges which were in relation to the testing equipment that Plummit was supplying and installing. Disciplinary Ground [128] In the decision letter dated 20 February 2025, the decision-maker determined that on the basis of the substantiation of Allegation 2, the Appellant had contravened s 91(1)(b) of the PS Act and was guilty of misconduct. [129] As noted above, in Coleman, Deputy President Merrell confirmed that for the purposes of the PS Act, "misconduct" 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.52 [130] In the decision letter, the decision-maker did not accept that the Appellant had provided a reasonable excuse to forward the entire quote document from Gould Industries to Mr 49 [2023] QIRC 296. 50 Smith v State of Queensland (Queensland Health) [2023] QIRC 296, [108]-[111]. 51 Appellant's Outline of Submissions filed 31 March 2025, Annexure 2. 52 Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62] per Merrell DP. -- 32 of 35 -- 33 Densley. [131] The Appellant provided an explanation in his show cause response regarding the reason why he provided the Gould Industries quote to Mr Densley. The Appellant confirmed that this was done for operational reasons to ensure that the installation of the fire pump occurred seamlessly and that there was no issue with connecting the BKB pump with flowmeters provided by Gould Industries. He contends that there was a genuine business reason for his actions, albeit he concedes he made a mistake by emailing the whole quote containing confidential pricing information. [132] The Appellant went on to confirm that following the provision of that information to Mr Densley, he was contacted by Mr Densley and informed that one of the Gould Industries instruments did not include a Queensland Fire Brigade thread. The Appellant was able to order the thread from Gould Industries and the installation of the BKB pump occurred without any issues. [133] The Appellant states that his only purpose in sending the information to Plummit was to provide that link between the equipment being supplied and the installers to identify any potential problems. The Appellant confirms that he did not think about the issue of confidentiality, and he also did not think that he needed to obtain any approval before contacting Plummit. [134] In Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2),53 Lucev FM (as his Honour then was) after referring to Taikato v The Queen54 said as follows: Ultimately, an excuse acceptable to a reasonable person, bearing in mind the purpose of the legislation, is a reasonable excuse.55 [135] There is no other evidence that appears to contradict the explanation provided by the Appellant. I would consider that the explanation provided by the Appellant does provide an excuse acceptable to a reasonable person for the Appellant's intent in providing the Gould Industries information regarding the flowmeters to Mr Densley. His mistake clearly was the failure to either redact the pricing information and the contact information, or alternatively, to cut and paste the relevant information regarding the flowmeters into another email to Mr Densley. [136] In terms of Plummit's supply of the BKB pump to TAFE, I do not consider that the information provided by the Appellant to Mr Densley placed them in a position of commercial advantage for that tender. Whilst making that finding, I acknowledge that there are a number of possible scenarios where the pricing information could be used by Plummit to either advantage Plummit or to disadvantage Gould Industries. 53 (2012) 269 FLR 100; [2012] FMCA 349. 54 (1996) 186 CLR 454, at 464 per Brennan CJ, Toohey, McHugh and Gummow JJ. 55 Fair Work Ombudsman v Finetune Holdings Pty Ltd (No 2) (2012) 269 FLR 100; [2012] FMCA 349, [26]. -- 33 of 35 -- 34 [137] The Appellant maintains that he had not received training in TAFE's procurement policies and procedures and the Respondent has not provided any evidence that contradicts this. [138] I note that the Appellant signed a conflict of interest declaration on 20 May 2024 in relation to his involvement in the purchase of the BKB pump. The contents of that conflict of interest form placed the Appellant on notice about his obligations regarding confidential information, however, it post-dated his sending of the email to Mr Densley on 22 April 2024. There is no other evidence available to me to establish that the Appellant had signed a similar conflict of interest declaration prior to sending the email on 22 April 2024. [139] On the basis of the evidence before the decision-maker as outlined above, I am not satisfied that a disciplinary ground of misconduct was open to the decision-maker in relation to Allegation 2. [140] In the circumstances outlined above, I do not believe that the actions of the Appellant could be regarded as being a deliberate departure from accepted standards, nor serious negligence to the point of indifference, nor an abuse of the privilege and confidence enjoyed by a public service employee. [141] With the allegation properly particularised and supported by relevant evidence I am satisfied that there is a basis to establish a disciplinary ground against the Appellant in relation to Allegation 2. As a consequence, in respect of Allegation 2, I intend to set aside the substantiation of the allegation, and I further intend to send the matter back to the decision-maker for fresh consideration. Conclusion [142] The questions in this appeal were whether the disciplinary finding decision was fair and reasonable. [143] For the reasons I have given, I have found that: • The finding that Allegation 1 was substantiated was fair and reasonable and that this decision is confirmed. • The finding that Allegation 2 was substantiated was not fair and reasonable. I have set aside the finding in relation to Allegation 2 and I have returned the matter back to the decision-maker with a copy of these reasons for fresh consideration. [144] To remove any doubt, I will revoke the stay of the disciplinary decision I ordered on 17 March 2025. -- 34 of 35 -- 35 Order [145] For those reasons, I make the following orders: 1. Pursuant to s 539(j) of the Industrial Relations Act 2016 (Qld) time be extended for the Appellant to file an appeal of the disciplinary finding decision dated 20 February 2025 until 14 March 2025 2. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld) the decision in relation to Allegation 1 is confirmed. 3. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) the decision in relation to Allegation 2 is set aside and I return the matter to the decision- maker with a copy of these reasons for fresh consideration. -- 35 of 35 --