Baker v State of Queensland (Department of Education) [2025] QIRC 99

1 QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Baker v State of Queensland (Department of Education) [2025] QIRC 099 PARTIES: Baker, Vicki Appellant v State of Queensland (Department of Education) Respondent CASE NO: PSA/2024/199 PROCEEDING: Public Sector Appeal – Appeal against a fair treatment decision DELIVERED ON: 9 April 2025 MEMBER: HEARD AT: O’Neill IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: INDUSTRIAL LAW – PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a fair treatment decision – where the appellant submitted an individual employee grievance alleging bullying by her manager – where the Local Action decision proposed to take no further action in relation to the appellant’s grievance – where the appellant submitted a stage two internal review request –where the appellant appeals the internal review decision -- 1 of 26 -- 2 – whether the decision was fair and reasonable – decision was fair and reasonable LEGISLATION: CASES: Industrial Relations Act 2016 (Qld) ss 273- 275, s 562B, s 562C, s 564(3) Public Sector Act 2022 (Qld), s 129, s 131, s 133 Directive 11/20: Individual employee grievances cls 5, 8 and 9 Individual employee grievance procedure Version 4.3 Department of Education Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Cummings v State of Queensland (Queensland Health) [2022] QIRC 72 Czaja v State of Queensland (Queensland Health) [2022] QIRC 489 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252 Pope v Lawler [1996] FCA 1446 State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3. Subramaniam v The Public Prosecutor [1956] WLR 965 -- 2 of 26 -- 3 Reasons for Decision Introduction and background [1] Ms Vicki Baker ('the Appellant') is employed by the State of Queensland (Department of Education) ('the Respondent') as an AO3 Administrative Officer at Chancellor State College on the Sunshine Coast. [2] On 10 December 2024, the Appellant filed a public sector appeal in relation to an internal review decision of Ms Kym Shreeve, Executive Director, Business Partnering and Workplace Health and Safety, dated 19 November 2024 ('the decision'). [3] The background to that internal review decision was that the Appellant lodged an individual employee grievance1 ('the Grievance') on 29 July 2024 which broadly alleged bullying and discriminatory treatment (ageism) towards her by Ms Kaylene Wheatley, Business Manager at Chancellor State College. In support of the grievance the Appellant provided three emails respectively dated 19 April 2022; 22 June 2023; and 20 March 2023. [4] The grievance was assigned to Mr Brad Roberts, Executive Principal, Chancellor State College to manage and determine. Mr Roberts provided the Appellant with a Notice of Decision – Stage 1 – Local Action ('the local action decision')2 in which he found that: • That the conduct that the Appellant perceived as bullying were administrative decisions made by Ms Wheatley that were fair and reasonable. Mr Roberts further noted that moving forward, he was taking steps towards supporting Ms Wheatley and her team in ensuring a harmonious working environment. Mr Roberts determined to take no further action in relation to this complaint. • The Appellant sought to have all annual leave and long service leave she had taken because of the bullying re-credited to her. Mr Roberts noted that he did not have any authority to recredit the leave that the Appellant had applied for, approved, and taken, and nor provide financial compensation. Mr Roberts also stated that he did not intend to take any further action in relation to the Appellant. [5] The Appellant was not satisfied with the local action decision and exercised her right pursuant to the relevant directive3 to have the decision internally reviewed. The internal review request led to the matter being considered by Ms Shreeve and her decision is now 1 Respondent's written submissions filed 18 February 2025 – Annexure B: Grievance Submission Form dated 29 July 2024. 2 Ibid, Annexure C: Notice of Decision – Stage 1 – Local Action dated 12 September 2024. 3 Directive 11/20: Individual employee grievances. -- 3 of 26 -- 4 the subject of this appeal. [6] Having regard to the submissions made by the parties and the material before me, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld) ('the IR Act'), I confirm the decision. [7] My reasons follow. Proceedings in the Commission [8] The appeal notice filed by the Appellant was deficient in that it did not include any grounds or reasons for the appeal. [9] A Directions Order was issued by the Commission on 13 December 2024. [10] That Directions Order, by Order 1, required the Appellant to file in the Industrial Registry and serve on the Respondent written reasons for the appeal and any supporting documents by 4:00 pm on Friday, 20 December 2024. [11] The Appellant sent an email to the Industrial Registry on 20 December 2024 which relevantly provided: 7. REASON FOR APPEAL Full particulars of the Appeal will be provided in the written submission due by 4.00pm on Friday, 10 January 2025. [12] On 10 January 2025, the Industrial Registry received an email from the Appellant which relevantly provided: I am on medical leave at present and do not have a submission via this format at this time. [13] On 14 January 2025, in light of the non-compliance of the Appellant with the earlier Directions Order the Commission issued a Further Directions Order. [14] In accordance with that Directions Order the parties have provided written submissions as follows: • On 22 January 2025 the Appellant provided reasons for the appeal. • The Appellant filed submissions on 5 February 2025 which primarily consisted of 36 attached documents. • The Respondent’s outline of submissions filed on 18 February 2025. -- 4 of 26 -- 5 • The Appellant’s reply submissions filed on 5 March 2025. [15] I have considered all of the submissions and the attached evidence provided by the parties although they may not be specifically referenced in these reasons. [16] The parties have not applied for leave to make oral submissions, as a consequence the matter will be dealt with on the papers pursuant to s 451(1) of the IR Act. Grounds of Appeal [17] The reasons for appeal provided by the Appellant on 22 January 2025 set out the following grounds for challenging the decision: 1. The investigator's omission to interview the nine employees named by the Appellant. 2. The investigator's election to draw inferences based on the absence of witnesses to the bullying that occurred against the Appellant. 3. The investigator's failure to consider the conduct of Kay Wheatley towards the Appellant and her written correspondence to the Appellant. 4. The investigator's failure to adequately undertake a detailed investigation given the emotional harm it caused and limitation it placed on the Appellant's ability to work. 5. The investigator's failure to consider the Appellant's contemporaneous responses to the bullying. 6. The investigator's failure to refer to the known behaviour of Kay Wheatley by the Administration. 7. The investigator's failure to consider the Agreement that the College and the Union set in place for Business Manager Coaching for Kay Wheatley to address her impugned conduct. 8. The investigator's lack of understanding that compensation is appropriate where a victim of bullying is unable to attend work. 9. The investigator's failure to consider the inadequacy of the Department's response to bullying allegations and the Department's acquiescence once it became apparent Kay Wheatley would retire. 10. The investigator's determination that no bullying occurred without a thorough investigation including interviewing all employees managed by Kay Wheatley to identify patterns of inappropriate conduct consistent with the allegations made in the complaint. [18] It should be noted that the Appellant's reasons for appeal reveal a fundamental misapprehension of the review process. The reasons for appeal all concentrate on failings by the original decision-maker and fail to raise any issues of concern with the internal review decision which is the subject of this appeal. [19] This presents a difficulty because the decision under review in this appeal is the internal review of the earlier local action decision dealing with the complaints by the Appellant that make up the Grievance. The Commission cannot review how the Grievance was dealt with at the first instance in this appeal, or the complaints within the Grievance. The issue before the Commission is confined to whether the decision by Ms Shreeve was fair and reasonable. -- 5 of 26 -- 6 Is the Appellant entitled to appeal? [20] Section 131(1)(d) of the Public Sector Act 2022 (Qld) ('the PS Act') provides that an appeal may be made against a fair treatment decision. Section 133(d) of the PS Act provides that for fair treatment decisions, it is the public sector employee who is aggrieved by the decision who may appeal. [21] I am satisfied that the Appellant was aggrieved by the decision. [22] Section 129 of the PS Act relevantly provides: 129 Definitions for part In this part— … fair treatment decision means a decision a public sector employee believes is unfair and unreasonable. [23] I am satisfied that the decision is one that is able to be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal. [24] Section 564(3) of the Industrial Relations Act 2016 ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given [25] The Appellant received the decision letter on 19 November 20244 and the Appeal Notice was filed in the Industrial Registry on 10 December 2024. I am satisfied that the appeal has been brought within the required time. What decisions can the Commission make? [26] Section 562C(1) of the IR Act prescribes 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. Appeal Principles [27] Section 562B(2) and (3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable". 4 Appeal notice – Public Sector Act 2022 filed on 10 December 2024, (5). -- 6 of 26 -- 7 [28] The appeal is not conducted by way of re-hearing,5 but rather involves a review of the decision arrived at by the decision-maker and the associated decision-making process.6 [29] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the Commission member may allow other evidence to be taken into account.7 [30] The issue for my determination is whether the decision appealed against was fair and reasonable.8 Relevant Policies Directive 11/20: Individual employee grievances policy [31] Directive 11/20: Individual employee grievances policy ('Directive 11/20') relevantly states: 5. Matters that can be subject of an individual employee grievance 5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that: … (b) the conduct or behaviour of an employee, agent or contractor is unfair and unreasonable (c) the conduct or behaviour of an employee, agent or contractor constitutes bullying in the workplace, sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality (d) the conduct or behaviour of an employee is a breach of the Code of Conduct … 8. Individual employee grievance resolution principles … 8.2 Individual employee grievances are to be managed and resolved using a three-step process: (a) local action (the first stage of the individual employee grievance process) (b) internal review of a decision made following local action (the second stage of the individual employee grievance process), and (c) where applicable, external review of a decision made at internal review (the third stage of the individual employee grievance process). 8.3 Agencies, including managers and supervisors, must manage individual employee grievances: 5 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5; Industrial Relations Act 2016, s 567(1). 6 Ibid; Industrial Relations Act 2016, s 562B(2). 7 Industrial Relations Act 2016, s 567(2). 8 Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA). -- 7 of 26 -- 8 (a) in accordance with principles of natural justice, including timely decisions and the provision of adequate reasons … (c) in accordance with the procedures in clause 9. (Emphasis added) … 9. Procedures for managing and resolving individual employee grievances 9.1 Stage 1–local action … (b) An individual employee grievance submitted by an employee must be resolved in accordance with the agency’s individual employee grievance policy and procedures. This action may include, but is not limited to, one or more of the following: (i) conducting preliminary enquiries to determine appropriate options for resolution of the individual employee grievance (ii) ADR strategies, including, facilitated discussion, mediation, conciliation or negotiation (iii) gathering information, including from witnesses, and/or (iv) other reasonable action in the circumstances. … (f) After a decision has been made about an individual employee grievance– including a decision to take no action under clause 9.1(c)–the agency must provide a written decision to the employee who submitted the grievance. The decision must: (i) outline the action taken to manage the individual employee grievance and the outcome of this action (ii) provide the reasons for the decision, or the decision to take no action (iii) outline any action that the agency proposes to take, or will take, as a result of the decision; and (iv) inform the employee of their internal review rights outlined in Stage 2– internal review, including any relevant timeframes. … 9.2 Stage 2–internal review (a) If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review. … (d) An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances. … -- 8 of 26 -- 9 (h) At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision The Reto the employee. This decision must: (i) outline the action taken to review the decision made through local action (ii) outline the reasons for the decision, or the decision to take no further action (iii) outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and (iv) outline any avenues of external review that may be available to the employee, including any relevant timeframes. (Emphasis added) Request for Internal Review Form [32] The Request for Internal Review Form9 lodged by the Appellant set out the following reasons for dissatisfaction with the local action decision of Mr Roberts: The local decision failed to: a. Provide written reasons that adequately referred to the contents of documentary material (including emails) provided with the original complaint; b. Obtain statements from staff members referred to in the complaint including, Kay Wheatley and reduce to writing so that they can be the subject of further investigation; c. Properly justify the decision by referencing written statements obtained from relevant staff members. The omissions listed in items (a) to (c) resulted in a denial of procedural fairness to myself. Procedural fairness requires that all relevant information be taken into account to ensure a just and unbiased outcome and that relevant written material is specifically referred to in the decision notice and any statements taken from witnesses are reduced to writing and the contents of these statements (so far as relevant to the decision) are disclosed in the decision notice. There was no reference made regarding the “Ageism” complaint that I made. This needs to be addressed. The reviewer having no authority to recredit my leave was a failure to address the grievance resolution/desired action. My expectation was that someone in authority would have made a judgement on this. [33] In the internal review form the Appellant records that the following action would resolve her grievance: 1. That all the information that led to the decision of the Stage 1 Local Action be made available. 2. That my reasons for dissatisfaction in this review be fully addressed. 3. That the Ageism and Bullying complaints be addressed so that I can be assured of returning to a safe workplace. 9 Respondent's written submissions filed 18 February 2025: Annexure D – Request for Internal Review Form dated 24 September 2024. -- 9 of 26 -- 10 4. That any leave and entitlements that I was forced to use due to the unsafe workplace be re- instated to me in full. Submissions of the parties Appellant’s submissions [34] The only submissions made by the Appellant in the material filed on 5 February 2025 were in the following terms: 1. This Application relates to ongoing distress I have experienced arising from my allegations against workplace bullying and the Department's ongoing dismissiveness of that complaint. 2. Significantly my complaints are not isolated. The Department failed to interview all personnel who had experienced similar concerns about the toxic work environment and in so doing, have further aggravated my distress and isolated my complaints from that of other staff members. 3. In support and additional to my previous submissions to the Department and also to QIRC, I provide the following schedule of documents and comments where appropriate. [35] In addition, the Appellant attached 36 documents. Of those attachments, only the three emails referred to in paragraph [3] above, were evidence that was before the local action decision maker. [36] In relation to those emails, the email dated 19 April 202210 was an email from Ms Wheatley to the Appellant regarding the Appellant selecting a scanner that will make it easier for the Appellant to upload invoices to OneSchool as the Appellant processed them. The relevant passage that the Appellant has highlighted as ageist is excerpted as follows: … Please let me know if you are too busy to choose – I have several in mind but as you know, I don't like to get in the way of experts who know what they need to do their job well and by that yes I do mean you. Doesn't mean I won't help out though. I don't want to put extra pressure on you at this time in your life so happy to help out. (Highlighted by the Appellant) [37] The second email is an email chain involving the Appellant and Ms Wheatley with the emails spanning the period from 13 March 2023 through to 20 March 2023.11 The subject of the email chain is the Appellant being assigned to take over archiving. The Appellant has highlighted part of an email from Ms Wheatley dated 14 March 2023 which provides as follows: 10 Ibid, Annexure E: Email from Ms Wheatley dated 19 April 2022. 11 Ibid, Annexure F: Email chain from March 2023. -- 10 of 26 -- 11 I have every faith that you will be able to do it and fit it in with your current workload. Unlike your role, all the rest of your team are already working across one or more areas and I am reluctant to ask them to take on more work at this time. I know you are nervous around change so I am happy to work closely with you to make sure you understand the process. We will also monitor your workload closely as we go and obviously if it does prove too much, we will try something else. Let's find some time on Thursday to discuss further please. [38] The third email the Appellant provided is an email exchange between Ms Wheatley and the Appellant that occurs on 22 June 2023.12 In an email sent at 3:11 pm Ms Wheatley criticises the Appellant for advice she allegedly provided to another staff member and suggests that she requires additional training. In a later email sent at 3:44 pm Ms Wheatley stated: My apologies again, I am sorry that I misunderstood Malcolm. He has just explained to me again that he offered to do the corporate card payment. [39] In relation to the 36 attachments provided by the Appellant in the email dated 6 February 2025, the Respondent notes that only four of those, being the Grievance Submission Form, and the three emails summarised above, were available to Mr Roberts.13 [40] The Respondent goes on to submit that whilst the attachments to the email of 6 January 2025, may support the Appellant's allegations, those attachments were not submitted with the Grievance Submission Form, and therefore were not considered by the Local Action decision-maker, Mr Roberts.14 [41] I further note that the additional documents were also not available to Ms Shreeve in her conduct of the internal review. The Respondent therefore contends that the additional documents are not relevant in assessing whether the decision was fair and reasonable.15 [42] Pursuant to s 562B(2) of the IR Act, the Commission must decide the appeal by reviewing the decision appealed against. The review is not a fresh hearing of the matter on the merits in the form of a hearing de novo.16 [43] Pursuant to s 562B(4)(b) of the IR Act, the Commission may allow other evidence to be taken into account if the commission considers it appropriate. This discretion only applies, however, to an appeal against a promotion decision or a disciplinary decision 12 Ibid: Annexure G: Email chain dated 22 June 2023. 13 Respondent's written submissions, [14]. 14 Ibid, [15]. 15 Ibid. 16 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. -- 11 of 26 -- 12 under the PS Act. A similar provision giving a discretion to the Commission to allow fresh evidence has not been provided in respect of a fair treatment appeal. [44] The new evidence that the Appellant has presented in this appeal process appears to be contemporaneous notes and diary entries that pre-date the submission of the Grievance and therefore would have been available to the Appellant at the time that the Grievance was submitted. Equally, that evidence was available to the Appellant at the time that the internal review application was lodged by the Appellant. [45] The first four documents relate to the period 2019 and 2020 and three of those documents are medical evidence. Once again all of that evidence was available to the Appellant well prior to the submission of the Grievance form. [46] There are also statements by other staff members that are anonymised. It is not clear when these were created and given that the statements have been anonymised it is difficult to determine what weight should be afforded to this evidence. [47] The Appellant has not provided an explanation as to why this evidence was not submitted to the Local Action Decision Maker or Ms Shreeve for the purposes of the internal review. [48] Given that: • the nature of the review that the Commission undertakes is limited by s 562B(2) of the IR Act; and • none of the new evidence the Appellant now seeks to rely upon was before either decision maker; and • the Appellant has not provided an explanation for the failure to provide the new evidence to the Local Action Decision Maker when the grievance was lodged, I accept the Respondent's submission that it would not be appropriate to consider that material in determining whether Ms Shreeve's decision was fair and reasonable. Respondent’s Submissions [49] The Respondent filed written submissions on 18 February 2025. [50] The Respondent submits that the focus of a review on the reasonableness is whether the decision is so unreasonable that it lacks intelligent justification in all the relevant -- 12 of 26 -- 13 circumstances. In State of Queensland (Queensland Health) v Hume (No. 3),17 the Industrial Court of Queensland held: [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' and the word 'reasonable' means '… agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '… fair and reasonable' is a question of fact. [51] The Respondent goes on to submit that the findings in a decision which are reasonably open on the relevant material or evidence before the Decision-Maker, should not be disturbed on appeal. The Respondent contends that the decision was fair and reasonable as the decision: • was consistent with the Directive and Procedure; • had regard for the Appellant's human rights under the Human Rights Act 2019; and • additionally, the Appellant was afforded procedural fairness, with consideration being given to all of the Appellant's complaint. [52] The submissions further contend that the Appellant has not met her onus of establishing the unreasonableness of the decision.18 The Respondent submits that the Appellant's emails of 22 January 2025 and 6 February 2025 do not contain submissions in support of the Appellant's claim that the decision was not fair and reasonable. [53] I summarise the balance of the Respondent's submissions as follows: Complaints of bullying • The Respondent submits that pursuant to the IR Act, an employee is bullied if: … while the employee is at work, an individual behaves unreasonably towards the employee and that behaviour creates a risk to the health and safety of that employee.19 • The Respondent contends that in determining whether the alleged behaviour constitutes bullying for the purposes of the Act, the decision-maker must first establish whether there has been repeated unreasonable behaviour. The Respondent notes that in the Local Action Decision, Mr Roberts determined the administrative decisions of Ms Wheatley to be fair and reasonable. • It is further contended that the Appellant has failed to identify how the alleged behaviours met the threshold of repeated unreasonable behaviour. The Appellant has also not established a link between the psychological harm and the alleged 17 [2024] ICQ 3. 18 Citing Czaja v State of Queensland (Queensland Health) [2022] QIRC 489, [74]. 19 Industrial Relations Act 2016 (Qld), s 272. -- 13 of 26 -- 14 bullying behaviour. • The Respondent submits that an assessment of the Grievance and the attachments in support of the Grievance suggest that it was open to Ms Shreeve to uphold the Local Action Decision. The Respondent contends that the three emails submitted by the Appellant in support of the Grievance demonstrate Ms Wheatley: o Assigning duties to the Appellant; o Requesting the Appellant undertake training; and o Assisting with managing the Appellant's workload. • The Respondent concludes that based on an assessment of this evidence, it was open to Mr Roberts to find that these matters do not constitute bullying and to take no further action. It was therefore fair and reasonable for the decision to uphold the Local Action Decision. Failure to interview all witnesses in the Appellant's complaint • The Respondent contends that any evidence from the other witnesses mentioned in the Appellant's Grievance would have been hearsay evidence as they were not direct witnesses of the alleged bullying.20 • The Respondent contends that both the Decision-Maker and Mr Roberts were correct in not considering the evidence of the third parties as it would have had little to no probative weight. Failure to give consideration to all facts • The Respondent contends that the Decision-Maker gave appropriate consideration to the relevant facts before her at the time that the decision was made. The Respondent notes that in the decision the Decision-Maker stated: …I have spoken with Mr Roberts who confirmed that the supporting documentation which you provided, was taken into consideration when making his decision. I have also considered the supporting documentation and am satisfied that, to the extent it relates to the key themes identified by Mr Roberts in the Local Action Decision, it was considered in a fair and reasonable way. • The Respondent submits that the conduct of Ms Wheatley was considered by both Mr Roberts and Ms Shreeve as part of the decision-making process. Adequate 20 Subramaniam v The Public Prosecutor [1956] WLR 965 at 970. -- 14 of 26 -- 15 weight was attributed to this conduct and the other evidence provided by the Appellant in reaching a decision to take no further action. Failure to reimburse the Appellant for leave taken • The Respondent submits that the Procedure is intended to provide employees with guidance on the process for submitting, managing and resolving a grievance. It is not intended to be a mechanism for investigating the cause or extent of a potential workplace injury. To this end, in the Local Action Decision, Mr Roberts relevantly set out that: If you believe you have suffered a workplace injury and are seeking compensation, I would recommend speaking to your doctor in the first instance, and then speaking to either WorkCover to discuss the process for making a claim. • The Respondent notes that the Decision-Maker set out that recrediting of leave balances was not an action that could be taken as a result of the internal review. Nor was there a mechanism for the recrediting of leave under any applicable industrial instrument.21 The Respondent further notes that, pursuant to the IR Act, compensation is generally not a remedy that is available to victims of bullying.22 • The Respondent concludes that it was fair and reasonable for the local action decision-maker to not reinstate the leave, and instead, advise the Appellant of the relevant course of action in relation to the investigation of her injuries. Appellant’s Reply Submissions [54] The Appellant submits that the Respondent's submissions regarding the Local Action Decision-Maker only having four of the attachments available to him in substance establish the Appellant's complaint that the simultaneous roles of Investigator and Decision-Maker compromised the integrity of the Grievance process in this instance. [55] The Appellant submits that the Decision-Maker not only rendered the decision against the Appellant but also had the responsibility to collect evidence. The submission contends that this raises significant questions of bias and the thoroughness of the investigation. The Appellant cites in particular, that the failure to interview key witnesses named by the Appellant raises concerns about whether all pertinent evidence was considered adequately. [56] The Appellant contends that the absence of interviews with those witnesses limited the decision-making process and undermined the fairness of the outcome. It is submitted that the Respondent's attempts to exculpate the Decision-Maker's omission on the basis that 21 Respondent's submissions – Annexure A: Internal Review Decision of Kym Shreeve, 19 November 2024. 22 Industrial Relations Act 2016 (Qld), ss 273-275. -- 15 of 26 -- 16 the Appellant herself referred to the witnesses as people she had confided in, was disingenuous and an after the fact justification for the omission. [57] The Appellant submits that the concession to not investigate the potential existence of patterns of conduct of bullying behaviour against other employees demonstrates bias in the Decision-Maker's investigative approach. [58] The Appellant contends that the Respondent's submission that witness testimonies are unnecessary where specific alleged bullying events were not witnessed is a dangerous precedent. The Appellant contends that judicial precedent concerning the significance of evidence relating to an alleged bully's pattern of behaviour towards other personnel emphasizes an adequate investigation necessitates the taking of witness testimonies when evaluating bullying claims. The Appellant cites Cummings v State of Queensland (Queensland Health)23, as an example where the Commission considered patterns of behaviour toward other employees as being pertinent in assessing workplace bullying allegations. [59] The Appellant further contends that the Local Action Decision-Maker's decision to limit the documentary evidence before them to that provided by the Appellant herself undermined the investigative limb of their role. The Appellant states that in both instances the election to confine and deliberately restrict the investigation's scope is open to a finding of bias and therefore any finding made by the (Local Action) Decision-Maker was unfair and unreasonable as it was based on inadequate evidence. [60] The Appellant submits that this finding is open in circumstances where no written response from Ms Wheatley was obtained by the Decision-Maker – an election that further compromised the integrity of the Grievance process. [61] The Appellant concludes that when an individual serves as both investigator and decision-maker in a Grievance process, there exists an implicit obligation to adduce sufficient evidence, whether it is oral or documentary, to make a determination. The Appellant contends that this implied duty is critical for ensuring procedural fairness and supports the legitimacy of the decisions made. [62] The Appellant submits that the failure to undertake this comprehensive assessment in adducing evidence can lead to significant concerns regarding the fairness and credibility of the resulting decision as has occurred, in the Appellant's submissions, in this instance. Consideration [63] 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 23 [2022] QIRC 72. -- 16 of 26 -- 17 has been utilised and the decision arrived at. [64] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)24 ('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.25 [65] 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.26 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.27 [66] The Appellant's reply submissions that I have summarised above suffer from the same difficulty identified earlier relating to her reasons for appeal. The submissions focus almost entirely upon the Local Action decision rather than the internal review decision which is the subject of this appeal. In this appeal I am required to determine whether the decision of Ms Shreeve was fair and reasonable in the circumstances. It is therefore necessary to turn to that decision and to consider its contents. [67] The decision of Ms Shreeve dated 19 November 202428 is seven pages in length. In approaching the task of undertaking the internal review Ms Shreeve (hereafter referred to as 'the Decision-Maker') initially set out her understanding of the actions or conduct of Ms Wheatley that the Appellant considered to be bullying behaviour as follows: • Ms Wheatley used ageist language towards you in an email sent on 19 April 2022; • Ms Wheatley lacked an understanding of your workload and failed to provide further information about your new role as the "archiving expert"; • Ms Wheatley berated you over the provision of incorrect information/advice to Mr Malcolm Harris and others in an email sent on 22 June 2023; • Ms Wheatley's style of communication towards you was not constructive and on separate occasions caused offence, feelings of belittlement, hurt and anxiety; • Ms Wheatley unwarrantedly suggested that you undertake some OneSchool training in the Financial Policies and Accounts Payable modules; and • Ms Wheatley scheduled a calendar appointment to discuss the training and rescheduled this for 6 February 2025. [68] Ms Shreve then summarises the concerns raised by the Appellant in the internal review request under the following grounds: 24 [2022] QIRC 16. 25 Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 26 Colebourne (n 15) at [21]-[22] and [25]. 27 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. 28 It is noted that the timeframe for the provision of the internal review decision was extended to 19 November 2024 beyond the normal 14 calendar days with the consent of the Appellant. -- 17 of 26 -- 18 1. Mr Roberts omitted the contents of supporting documentation provided, or referred to, in your Grievance; 2. Mr Roberts failed to obtain and include written statements from the nine employees mentioned in your Grievance, and specifically, Ms Wheatley; 3. the decision-making process was inconsistent with the principles of procedural fairness; 4. Mr Roberts did not explicitly address the "ageism complaint" made in your Grievance; and 5. Mr Roberts was unable to recredit the long service leave and recreation leave that you accessed while absent from the workplace. [69] In the internal review decision Ms Shreeve confirms that in considering the internal review request she reviewed the following documentation: • your Grievance; • the Local Action Decision; • the material before the decision maker at the time of making the Local Action Decision; • your Internal Review Request; • the Instruments; and • the rights protected by the HR Act. [70] Ms Shreeve then goes on to address each of the concerns identified from the internal review request. [71] I consider that in adopting the approach set out in the two preceding paragraphs the steps taken by Ms Shreeve in the decision-making process giving rise to the decision were procedurally fair and reasonable. Concern 1: Mr Roberts omitted the contents of the supporting documentation provided or referred to in the grievance. [72] Ms Shreeve records that as part of her conduct of the internal review she spoke with the Local Action decision-maker and he confirmed that the material provided by the Appellant was taken into consideration when making his decision. This appears to be consistent with the contents of the Local Action Decision where the Decision-Maker states: In addition to the Instruments and your Grievance (including all of its attachments), I have also considered the following in making my decision: • information provided by yourself. • the response provided by Kay Wheatley; … The fact that a particular matter is not specifically addressed in this decision does not mean that I did not carefully consider it.29 29 Respondent's submissions – Annexure C: Local Action Decision dated 12 September 2024. -- 18 of 26 -- 19 [73] Ms Shreeve goes on to confirm that she has (independently) also considered the supporting documentation (being the three emails supplied by the Appellant), she was satisfied that, to the extent that the documentation related to the key themes identified by the Local Action decision-maker in the Local Action Decision, they were considered in a fair and reasonable way. [74] The Local Action Decision Maker made a finding after considering "all of the material available to me", that the administrative decisions made by Ms Wheatley were fair and reasonable. [75] I have reviewed the three emails provided by the Appellant apparently as evidence of the bullying conduct of Ms Wheatley that she was complaining about. [76] In relation to the email dated 19 April 202230 discussing the issue of the choice of scanner, the email appears to be polite, conciliatory and indicates a willingness on the part of Ms Wheatley to assist the Appellant should this be required. [77] Regarding the reference by Ms Wheatley to not wanting to put extra pressure on the Appellant at this time in her life, this could have any number of meanings. It could refer to the Appellant's health or events going on in her private life. I am not satisfied that it would be safe to conclude that this was ageist behaviour by Ms Wheatley. [78] It is not apparent from the contents of that email that the email could be considered to be bullying conduct by Ms Wheatley to the Appellant. [79] In relation to the email chain from March 202331 regarding the Appellant becoming the archiving expert, the emails reveal the following comments made by Ms Wheatley: • The initial email from Ms Wheatley on 13 March 2023 notes as follows: I need you to become our archiving expert immediately or as soon as you can please. You are already all over it in most of the areas and I have always valued your contribution in this space. I am only too happy to help you sort things out in this area – but we already have our outsourced program up and running so you won’t need to invent anything. Attached please find my initial draft of the tasks that you will need to do. I look forward to hearing your input. • The Appellant replied by an email sent on 14 March 2023 at 2:13 pm to the effect that she was unable to become the expert in this role or to take on any additional 30 Respondent's written submissions, (n 10). 31 Respondent's written submissions, (n 11). -- 19 of 26 -- 20 tasks at that time. • Ms Wheatley responded the same day at 2:58 pm and the relevant parts of that email are excerpted above at paragraph [37]. • On 20 March 2023 at 9:45 am Ms Wheatley sent the Appellant a further email confirming her intention to announce the Appellant as being in charge of archiving at a meeting being held the following day. Ms Wheatley goes on to note: Sorry we didn't get to catch up last week re this but Ang and I had a quick brain dump and we figure it should be no more than 10/15 hours work a year, but as I said, we will work with you and monitor the workload. • In response, the Appellant sent an email at 5:26 pm on 20 March 2023 noting that she wanted further discussion and information about the scope of this activity and the estimated workload. Ms Wheatley responded that evening by email that she was happy to meet in her office at 9:00 am the next day. [80] In relation to this email chain, I am also not satisfied that it evidences any bullying or inappropriate behaviour by Ms Wheatley. [81] Finally, in relation to the two emails from Ms Wheatley on 22 June 2023:32 • In the first email Ms Wheatley raises concerns about the Appellant providing incorrect advice to another staff member about a purchase order. Ms Wheatley also states that whilst the Appellant was absent recently, she had to rescind some advice the Appellant provided to a couple of people and share the latest policy with them. Ms Wheatley goes on to state: We don't have time to do it now, so when you get back in Term 4 can we discuss this further please as I think you need to do some training – both in financial policies and the AP module. I will book a calendar appointment for both of us in Week 1, Term 4 to discuss this further. I look forward to your thoughts. I also look forward to working with you to ensure both your knowledge and skills are up to date and as current as we can get them. • As noted in paragraph 38 above, in the second email sent on 22 June 2023, Ms Wheatley apologises to the Appellant for misinterpreting the information that had been provided to her. [82] The conclusion of the Local Action Decision Maker that the administrative decisions taken by Ms Wheatley were fair and reasonable was open on the evidence that the 32 Respondent's written submissions (n 12). -- 20 of 26 -- 21 Appellant provided in support of her grievance. [83] In the Respondent's submissions filed on 18 February 2025 it is contended that Ms Shreeve gave appropriate consideration to the relevant facts before her at the time the decision was made.33 The Respondent further specifically notes that in the Local Action Decision, the following comments are recorded: In seeking to resolve your Grievance, I have taken the following action/s: • Conducted a preliminary enquiry to determine appropriate options for resolution; • Reviewed your communications to Mr Dittman; • Spoken to Kay Wheatly regarding information shared. [84] I am satisfied that Ms Shreeve confirmed with the Local Action Decision Maker that the information provided by the Appellant was considered in the Local Action decision making process. I am further satisfied that Ms Shreeve independently considered and reviewed the supporting documentation in concluding that this information was considered in a fair and reasonable way. [85] I am satisfied that the manner in which Ms Shreeve approached the first concern was fair and reasonable and that it was open to her to reach the conclusion she has in the decision. Concern 2: Mr Roberts failed to obtain and include written statements from the nine employees mentioned in your grievance, specifically, Ms Wheatley. [86] In addressing this concern, Ms Shreeve noted that the Appellant had provided no indication in the grievance that the identified employees had independently witnessed any bullying behaviour by Ms Wheatley. To the contrary, Ms Shreeve confirms that the witnesses had been put forward by the Appellant as people she had confided in. [87] Ms Shreeve in the decision observes that there was no requirement for a decision maker to consider second hand accounts about a situation an individual was not directly involved in. Ms Shreeve as a consequence found that it was open to the Local Action Decision Maker to conclude that he had sufficient information before him to make a decision about the Appellant's grievance and that the Local Action Decision was fair and reasonable. [88] The Respondent in its written submissions contends that any evidence provided by the nine witnesses would have constituted hearsay evidence because they were not direct witnesses of the alleged bullying.34 33 Respondent's written submissions, [25]. 34 Respondent's written submissions, [24]. -- 21 of 26 -- 22 [89] The Respondent further contends that both the Local Action Decision Maker and Ms Shreeve were therefore correct in not considering the evidence of these persons as it would have little to no probative weight.35 [90] The Appellant in her reply submissions contends that bias is implicit in the Respondent's submission that the evidence from the witnesses would constitute hearsay, because such a finding is not open in circumstances where no evidence was taken.36 [91] In circumstances where: • the Appellant indicated in the Grievance Submission Form37 that she had only 'spoken' with the relevant witnesses 'about the behaviour of Kay Wheatley' toward her; and • in the absence of the Appellant providing an indication that one or more of the witnesses were present when bullying behaviour from Ms Wheatley occurred, I am satisfied that it was open to both the Local Action Decision Maker and Ms Shreeve to conclude that the evidence of the nominated employees would be of minimal assistance and have limited probative value. [92] The Appellant in her reply submissions addresses the failure by the Local Action Decision Maker to conduct what she considers to be a proper and thorough investigation which included the alleged failure to obtain 'written statements' from the nominated employees. [93] Directive 11/20 Individual employee grievances provides in Clause 9 for the procedures for managing and resolving individual employee grievances. Clause 9.1 addresses what occurs at Stage 1 – local action consideration of the grievance (which is excerpted at paragraph 31 above). [94] Clause 9.1(b) confirms that an individual employee grievance must be resolved in accordance with the agency's individual employee grievance policy and procedures. Clause 9.1(b) further confirms that the action may include but is not limited to: • conducting preliminary enquiries to determine appropriate option for resolution of the grievance; and • gathering information, including from witnesses. 35 Ibid. 36 Appellant's reply submissions, [5]. 37 Annexure B, Respondent's submissions. -- 22 of 26 -- 23 (emphasis added) [95] There is no specific requirement for a Local Action Decision Maker to obtain written witness statements. Further, the Local Action Decision Maker is given a discretion regarding the obtaining of information from witnesses, that is, whether it is to occur at all and the extent to which it occurs. [96] The Department of Education has published its own Individual employee grievance procedure ('the procedure'). Version 4.3 of that procedure was effective from 22 January 2024. Under the heading of 'Stage 1: Local action' the procedure in clauses 1 to 4 largely mirrors Directive 11/20. Clause 4 of the procedure mirrors Clause 9.1(b) of Directive 11/20, other than for the addition of a requirement for the Local Action Decision Maker to consider the human rights impacts for all persons involved. [97] The manner in which the Local Action Decision Maker has approached the resolution of the Appellant's grievance appears to be consistent with the discretions provided by both Directive 11/20 and the procedure. [98] The Appellant contends in her reply submissions that the Respondent's submission that witness testimonies are unnecessary where alleged bullying events are not witnessed is a dangerous precedent. I consider that this mischaracterises the concerns raised by the Respondent, which addressed what probative weight that could be afforded to the evidence of witnesses who were solely relied upon by the Appellant as witnesses of what she had told those witnesses. [99] The Appellant cites the decision of Commissioner Knight in Cummings v State of Queensland (Queensland Health)38 ('Cummings') as authority for the proposition that evidence of a pattern of behaviour towards other employees can be pertinent in assessing workplace bullying allegations and that this approach should be preferred over that espoused by the Respondent.39 [100] In relation to that contention by the Appellant, a number of observations can be made as follows: • In the grievance submission form40 the Appellant makes no mention of there being a pattern of bullying behaviour towards other employees. • In the grievance submission form the Appellant also does not indicate that any of the people she identifies that she had spoken to about Ms Wheatley, would be able 38 [2022] QIRC 72. 39 Appellant's reply submissions, [10]-[12]. 40 Respondent's submissions, Annexure B. -- 23 of 26 -- 24 to give evidence as to a pattern of bullying behaviour against other employees. • The relevance of the evidence of a pattern of bullying behaviour by Ms Wheatley would also be open to question. • The decision of Commissioner Knight in Cummings arose from a public sector appeal where Ms Cummings was appealing from a disciplinary action decision following the initiation of a disciplinary process and a formal investigation. This is a very different scenario to a Local Action Decision Maker providing an outcome at Stage 1 of a grievance process. • I further consider that the decision in Cummings is in fact not an authority for the proposition contended by the Appellant that a pattern of behaviour towards other employees can be pertinent to assessing a bullying allegation. [101] In light of the contents of Clause 9 of Directive 11/20 and the contents of the procedure, I am satisfied that it was open to Ms Shreeve to conclude that the manner in which the Local Action Decision Maker made his decision and the information he relied upon was fair and reasonable. I am therefore satisfied that the decision was fair and reasonable as it relates to Concern 2. Concern 3: The decision-making process was inconsistent with the principles of procedural fairness. [102] In the decision Ms Shreeve noted that the Appellant's complaint in the Internal Review Request was that there had been a denial of procedural fairness in the Local Action Decision because of the points raised in Concerns 1 and 2. [103] Ms Shreeve noted that the fact that not every matter raised in the Appellant's grievance was specifically mentioned by the Local Action Decision Maker, did not render the decision unfair or unreasonable, where the key issues had been addressed. Ms Shreeve went on to conclude: Having reviewed the information relevant to this matter, I am satisfied Mr Roberts addressed the allegations you made regarding Ms Wheatley and carefully considered her response in light of the materials you provided. Further, there is no requirement within the Instruments, or otherwise, for Mr Roberts to obtain written statements from the nine employees mentioned in your Grievance and include these within his decision. I am therefore satisfied you were given the opportunity to present your case to an unbiased adjudicator and that Mr Roberts took all relevant information into consideration before making a decision. As such, I consider the Local Action Decision was fair and reasonable. [104] Following a review of the material that was before the Local Action Decision Maker, the Local Action Decision itself, the decision, and the submissions of the parties in this -- 24 of 26 -- 25 appeal, I am satisfied that the conclusion reached by Ms Shreeve was open to her. I am therefore satisfied that as regards Concern 3, the decision was fair and reasonable. Concern 4: Mr Roberts did not explicitly address the "ageism complaint" made in your Grievance. [105] In the decision, whilst acknowledging that the Local Action Decision did not make a specific reference to the Appellant's ageism complaint, Ms Shreeve indicated that she was satisfied that the Local Action Decision Maker had before him, and took into account the relevant material, including the ageism allegation and the email of 19 April 2022. [106] Ms Shreeve further concluded that the fact that this allegation was not specifically mentioned in the Local Action Decision did not mean that it had not been investigated by Mr Roberts. Ms Shreeve concluded her consideration of this concern as follows: To clarify, processes and decisions do not need to be perfect or ideal to be considered fair and reasonable. A Decision Maker is not required to take action or respond to an individual employee grievance on a "line by line" basis. Rather, they may do so by identifying key themes. I am satisfied that Mr Roberts made an objective assessment of the information provided and the circumstances surrounding the email dated 19 April 2022, on which you based your claim of ageism. Accordingly, I do not find Mr Roberts' decision to be unfair or unreasonable. [107] As noted above when addressing Concern 1, the Local Action Decision Maker confirmed in his decision that he had considered the Appellant's grievance (including all of its attachments), the information provided by the Appellant and the response provided by Ms Wheatley. This would mean that he has considered the email of 19 April 2022 that the Appellant relied on as proof of her allegation of "ageism" in reaching the decision that the administrative decisions taken by Ms Wheatley were fair and reasonable. [108] It would have been preferable for the Local Action Decision Maker to have specifically addressed the issue of "ageism" in the Local Action Decision. The fact that he has failed to do so does not in my view render the Local Action Decision unfair or unreasonable for the reasons outlined by Ms Shreeve in the decision. [109] I am satisfied that the conclusions reached by Ms Shreeve in relation to Concern 4 were open to her on the evidence available to her. I am therefore satisfied that as regards Concern 4, the decision was fair and reasonable. Concern 5: Mr Roberts was unable to recredit the long service leave and recreation leave that you accessed whilst absent from the workplace. [110] The Respondent in its appeal submissions contends that the grievance procedure is intended to provide employees with guidance on the process for submitting, managing, and resolving a grievance. The Respondent submits that it is not intended to be a -- 25 of 26 -- 26 mechanism for investigating the cause or extent of a potential workplace injury.41 [111] In the Local Action Decision42 the Decision-Maker confirmed that he did not have any authority to recredit her leave or to provide financial compensation. The Decision- Maker further noted that if the Appellant believed that she had suffered a workplace injury and was seeking compensation, he recommended that the Appellant speak to her doctor in the first instance, and then to WorkCover, or seek independent legal or union advice. [112] Ms Shreeve in her decision43 also confirmed that a recrediting of the Appellant's leave balances was not an action that could be taken as a result of the Internal Review. Ms Shreeve further noted that there were no provisions within the Public Service Officers and Other Employees Award 2015, Department of Education Certified Agreement 2022, Public Sector Act 2022 or Industrial Relations Act 2016, to recredit the Appellant with the leave she accessed while absent from the workplace. [113] The Respondent further submits in its written submissions that, pursuant to the IR Act, compensation is generally not a remedy that is available to victims of bullying.44 [114] I am satisfied that the approach taken to the request by the Appellant for the re- crediting of her leave by both the Local Action Decision Maker and Ms Shreeve in the decision was fair and reasonable in the circumstances. Conclusion [115] I find that the internal review decision of Ms Shreeve appropriately considered the Appellant's concerns and was sound and that it was open to her to find that the decision of the Local Action Decision Maker, Mr Roberts, was fair and reasonable. [116] In all of the circumstances I consider the decision of Ms Shreeve was fair and reasonable. Order [117] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 41 Respondent's submissions, [29]. 42 Respondent's submissions, Annexure C. 43 Ibid, Annexure A. 44 Respondent's submissions, [30]; Industrial Relations Act 2016 (Qld), ss 273-275. -- 26 of 26 --