Condon v State of Queensland (Queensland Health) [2023] QIRC 23

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: Condon v State of Queensland (Queensland Health) [2023] QIRC 023 Condon, Corey (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2022/951 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 24 January 2023 MEMBER: HEARD AT: ORDERS: McLennan IC On the papers 1. Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, I decline to hear the appeal against the Disciplinary Finding Decision. 2. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Disciplinary Action Decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where conduct allegations substantiated – where appeal against disciplinary finding decision was filed out of time – whether appeal against disciplinary finding decision should be heard out of time – where disciplinary action imposed – whether disciplinary action decision was fair and reasonable – whether disciplinary action was appropriate and proportionate -- 1 of 20 -- 2 LEGISLATION & OTHER INSTRUMENTS: CASES: Industrial Relations Act 2016 (Qld) s 451, s 562, s 562A, s 562B, s 562C, s 564, s 567 Public Service Act 2008 (Qld) s 3, s 187, s 188, s 194 Directive 14/20 Discipline cl 4, cl 5, cl 7, cl 8 Queensland Health, Human Resources Policy: Discipline E10 (QH-POL-124) (June 2021) cl 2 Breust v Qantas Airways Ltd (1995) 149 QGIG 777 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298 Bruce Anthony Piggott v State of Queensland [2010] ICQ 35 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) House v The King (1936) 55 CLR 499 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010 Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232 -- 2 of 20 -- 3 Reasons for Decision [1] Mr Corey Condon (the Appellant) is employed as a Cook/Supervisor (OO3.4 classification) in Food Services at The Park – Centre for Mental Health (The Park) with West Moreton Hospital and Health Service (WMHHS), Queensland Health, State of Queensland (the Department; the Respondent). [2] Mr Condon has worked at The Park for 32 years and received multiple awards for his service. [3] On 3 May 2022, Mr Philip Juffs1 issued Mr Condon with a show cause notice (the First Show Cause Notice) pertaining to three allegations: Allegation one It is alleged that on 3 October 2021, you acted inappropriately towards Ms Gabrielle Broadbent, Operational Officer when you did one or more of the following: • Spoke sarcastically towards Ms Broadbent about cleaning up the chicken juice you had caused to spill and were aggressive to Ms Broadbent indicating that she should be cleaning the bench; • Yelled at Ms Broadbent "Gabby don't leave! Come back here! Don't walk out!" and "You wait for tomorrow or Tuesday it will start tomorrow you watch!" Allegation two It is alleged that on 15 September 2021, you make an inappropriate comment to Ms Jessica Boettcher, Operational Officer, when you said "I am surprised you aren't pregnant by now." Allegation three It is alleged that you acted inappropriately when you unnecessarily touched Ms Patricia Smith, Operational Officer, and/or Ms Jessica Boettcher, Operational Officer, in the workplace. [4] That correspondence further advised Mr Condon that: • the allegations were sufficiently serious such that it cannot be managed through more informal processes such as management action; • he was suspended from duty with pay, as Mr Condon should not remain in his current role and workplace at this time; and • it was not appropriate to place Mr Condon on alternative duties whilst the allegations against him were outstanding. [5] Mr Condon provided a written response to the First Show Cause Notice on 26 May 2022. He denied engaging in the alleged conduct. [6] On 9 June 2022, Mr Juffs advised of the Disciplinary Finding Decision (Second Show Cause Notice) as follows: 1 Executive Director Allied Health, West Moreton Health. -- 3 of 20 -- 4 • the three allegations were likely to have occurred and are therefore substantiated, on the balance of probabilities; • there are grounds for Mr Condon to be disciplined pursuant to s 187(1)(g) of the Public Service Act 2008 (Qld) (the PS Act) in that he has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant discipline action, namely the Code of Conduct for the Queensland Public Service. Specifically, cl 1.5 of the code which provides as follows: 1.5 Demonstrate a high standard of workplace behaviour and personal conduct We have a responsibility to always conduct and present ourselves in a professional manner and demonstrate respect for all persons, whether fellow employees, clients or members of the public. We will: a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them and recognise that others have the right to hold views which may differ from our own and b. ensure our conduct reflect our commitment to a workplace that is inclusive and free from harassment. • consideration is currently being given to the disciplinary penalty of: • a reprimand; and • a demotion to a lower classification (from OO3.4 to OO2.4). [7] That correspondence also explained Mr Condon's appeal rights to the QIRC, if he believed Mr Juffs' decision to find all of the allegations substantiated was not fair or reasonable. [8] That correspondence also explained Mr Condon's right to request a review by the Public Service Commission, if he believed there was a procedural defect in the handling of this discipline matter. [9] Mr Juffs approved extensions of time for Mr Condon to respond to the Second Show Cause Notice. [10] While the AWU emailed Mr Juffs on 6 September 2022 questioning the integrity of the process against Mr Condon, it does not appear that any appeal of the Disciplinary Finding -- 4 of 20 -- 5 Decision was filed with the QIRC nor was the Public Service Commission requested to conduct a review of the process undertaken. [11] On 16 September 2022, the AWU responded to the Second Show Cause Notice on behalf of Mr Condon. The union contested the integrity of the evidence and stated that the proposed disciplinary penalty was harsh. Further, it submitted "that local Management discussion should take place between the parties concerned to address these matters", rather than any disciplinary penalty. [12] On 5 October 2022, Mr Juffs advised of his Disciplinary Action Decision. Following the AWU's advocacy on behalf of Mr Condon, Mr Juffs determined to instead impose the lesser disciplinary penalty of: • a reprimand; and • direction to complete the following training courses within 3 months: o Workplace Behaviour and Ethics, Corrupt Conduct and PIDS; o Coaching skills for Leaders; and o Conversations that make a difference. [13] With respect to the direction to complete training, Mr Juffs also appropriately noted that: I have attached a summary of the training courses. All courses are available for enrolment on West Moreton learning-on-line (WM LOL) and you will be supported during worktime to complete this training. [14] In communicating his Disciplinary Action Decision, Mr Juffs revisited the concerns he held about Mr Condon's repeated actions and lack of insight into its impact on several colleagues. Mr Juffs emphasised that: It is for these reasons, and the concerns documented in my correspondence of 9 June 2022, that I believed it was untenable to return you to the Cook/Supervisor position at The Park and held the view that you were demonstrably unfit to hold a supervisory position. Whilst I continue to hold these concerns, I have spent time reflecting on the concerns raised and the strength of the evidence in each allegation… [15] Despite the serious nature of the substantiated allegations against Mr Condon, it would appear from Mr Juffs' comments that the strenuous representations made by the AWU successfully averted Mr Condon's demotion to a lower classification (from OO3.4 to OO2.4) and the retention of his supervisory position. [16] In addition to imposing a reprimand and the direction to complete online training, the Disciplinary Action Decision also revoked Mr Condon's suspension from duty, with his return to work to take effect on Monday, 10 October 2022. -- 5 of 20 -- 6 [17] On 24 October 2022, Mr Condon filed an Appeal Notice in which he submitted that: …the decision is unfair and unreasonable on the basis that: a. the three allegations should not have been substantiated on the balance of probabilities, and the same has been outlined in the responses from the Appellant and his representatives; and b. that on the basis of the questionable integrity of the evidence, that the proposed disciplinary action is disproportionate to the conduct alleged. [18] In the Appellant's reply submissions filed 8 November 2022, Mr Condon again outlines arguments as to why he believes Mr Juffs' decision to substantiate the allegations was unreasonable. [19] The Appeal Notice outlines the remedy Mr Condon seeks in these terms: The Appellant submits that in light of: a. the said submissions about the Allegations put to him; and b. that the Appellant has had no prior disciplinary action laid against them by the Respondent. The proposed disciplinary action that is set to take effect on 26 October 2022 is disproportionate to the conduct alleged. In turn, the Appellant submits that the disciplinary action should be rescinded and, in the alternative, that only training is provided to the Appellant. [20] Out of fairness to Mr Condon, I will accept the Appeal Notice as an appeal of both the Disciplinary Finding Decision and Disciplinary Action Decision, however for reasons that follow, I will decline to hear the appeal against the Disciplinary Finding Decision. [21] On 25 October 2022, I issued a Directions Order that stayed the Disciplinary Action Decision until the determination of this appeal or further order of the Commission. Jurisdiction [22] Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person." [23] Mr Condon has been an employee of the Respondent at all times relevant to this appeal. [24] I am satisfied that the Disciplinary Finding Decision and Disciplinary Action Decision can be appealed. -- 6 of 20 -- 7 Timeframe to Appeal [25] Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. [26] The Disciplinary Action Decision was given to Mr Condon on 5 October 2022 and the Appeal Notice was filed with the Industrial Registry on 24 October 2022. Therefore, I am satisfied that the Appeal Notice, as it pertains to the Disciplinary Action Decision, was filed by Mr Condon within the required timeframe. [27] However, the Disciplinary Finding Decision was given to Mr Condon on 9 June 2022. In accordance with s 564(3) of the IR Act, an appeal of the Disciplinary Finding Decision should have been filed on or by 30 June 2022. Therefore, the Appeal Notice, as it pertains to the Disciplinary Finding Decision, was filed almost four months out of time. Should the appeal against the Disciplinary Finding Decision be heard out of time? [28] I am empowered by the IR Act to extend the time for filing an Appeal Notice.2 The IR Act does not provide any criteria against which I am to determine whether or not to extend time. [29] Mr Condon bears the positive burden of demonstrating that the justice of the case requires the indulgence of an extension of time to file the appeal.3 However, this issue has not been raised by Mr Condon or the Respondent. [30] The question of whether to extend the time for filing an application under the IR Act is fundamentally an exercise of discretion. Such an exercise must be undertaken judicially and according to the rules of reason and justice, not arbitrarily or capriciously or according to private opinion.4 Several factors inform the exercise of my discretion. [31] In Breust v Qantas Airways Ltd, Hall P set out the following considerations:5 • The length of the delay; • The explanation for the delay; • The prejudice to the Appellant if the extension of time is not granted; • The prejudice to the Respondent if the extension of time is granted; and 2 Industrial Relations Act 2016 (Qld) s 564(2). 3 Megan Reimers v Aramaki Company (Australia) t/a Camira Child Care Centre [2002] 170 QGIG 1010; Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 547. 4 House v The King (1936) 55 CLR 499, [2]. 5 (1995) 149 QGIG 777. -- 7 of 20 -- 8 • Any relevant conduct of the Respondent. Length of delay [32] The appeal was filed almost four months out of time. The 21-day appeal period has been determined by the legislature to be the appropriate period for a person to file an appeal. That is clearly stated in the IR Act. I consider almost four months to be a substantial amount of time. Explanation for the delay [33] Mr Condon has not provided a reason for the delay in filing his Appeal Notice. [34] In the Disciplinary Finding Decision correspondence dated 9 June 2022, Mr Juffs relevantly stated the following (emphasis added): If you believe my decision to find all of the allegations substantiated , is not fair or reasonable, you may lodge a Public Service Disciplinary Appeal through the Queensland Industrial Relations Commission within 21 days of receipt of this letter. [35] Mr Condon ought to have known there is a 21-day time limit within which he needed to file an appeal with the QIRC - that was clearly explained to him. Therefore, in the absence of Mr Condon's own explanation, I conclude there is no reasonable explanation for the delay. Prejudice to Mr Condon [36] The obvious prejudice is that Mr Condon would lose the opportunity for an independent review of the Disciplinary Finding Decision, and any subsequent relief. I appreciate that outcome is not an insubstantial detriment. Prejudice to the Respondent [37] I note the Respondent did not put forward submissions with respect to prejudice. Notwithstanding, delay itself is considered to give rise to a general presumption of prejudice to the Respondent.6 Furthermore, minimal additional prejudice to the Respondent in and of itself is an insufficient basis to grant an extension of time.7 [38] When Mr Condon responded to the Disciplinary Finding Decision that contained the proposed disciplinary action, he proceeded to respond to the proposed disciplinary action. By not appealing the Disciplinary Finding Decision within the required timeframe, Mr Condon may have indicated to the Respondent that he intended to proceed with the disciplinary process. Had Mr Condon appealed the Disciplinary Finding Decision within the required timeframe, it is likely the Respondent would have stopped the disciplinary 6 Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541, 556. 7 Brodie-Hanns v MTV Publishing Ltd (1995) 67 IR 298, 300. -- 8 of 20 -- 9 process and would not have considered the penalty until after that appeal had been determined. The Respondent has now taken the time to review Mr Condon's response, consider an appropriate disciplinary action and communicate that accordingly. [39] For those reasons, I find the Respondent would suffer prejudice should I decide to exercise my discretion to hear the appeal out of time. Conduct of the Respondent [40] The Respondent's conduct appropriately comprised advising Mr Condon of his appeal rights. There is nothing in the filed materials that suggests the Respondent's conduct contributed to the delay. Prospects of success [41] Mr Condon's prospects of success at a substantive hearing are a relevant consideration.8 However, I note the guidance on this factor provided by President Hall in Bruce Anthony Piggott v State of Queensland (emphasis added, citations removed): In addition to these factors, the prospects of an application succeeding at a substantive hearing are also relevant, so that where it appears that an applicant has no, or very limited, prospects of success, the Commission should not grant an extension of time. However, the occasions for rejecting an application for an extension of time on the ground that the applicant has poor prospects of success will be few, and generally, the merits of an application are part of the general consideration of all relevant factors. In assessing the prospects of the substantive application succeeding, in the context of deciding an application to extend time, the merits or lack thereof of the substantive application must be clear cut, and will usually flow from formation of a view that there is an obstacle that no amount of evidence can overcome. Cases where a view may be formed so adverse to the applicant as to justify the refusal to extend time on that ground, will be rare.9 [42] In my preliminary view of the substantive matter, the merits (or lack thereof) are not clear cut at this stage. However, the factors outlined above, coupled with Mr Condon's lack of explanation for the delay lead to my conclusion that this appeal, as it pertains to the Disciplinary Finding Decision, should not be heard out of time. Conclusion [43] Section 562A(3)(b)(iii) of the IR Act provides: 562A Commission may decide not to hear particular public service appeals … (3) The commission may decide it will not hear a public service appeal against a decision if— … 8 Geoffrey John Erhardt v Goodman Fielder Food Services Limited (1999) 163 QGIG 20; Roger Carter Paterson v Medical Benefits Fund of Australia Limited (1998) 159 QGIG 232. 9 [2010] ICQ 35, [6]. -- 9 of 20 -- 10 (b) The commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal- … (iii) should not be heard for another compelling reason. [44] The reasons outlined above, being noncompliance with the statutory timeframe coupled with no reasonable grounds to extend that time, are sufficiently compelling reasons to refrain from hearing the appeal as it pertains to the Disciplinary Finding Decision pursuant to s 562A(3)(b)(iii) of the IR Act. [45] I will now proceed to consider the appeal as it pertains to the Disciplinary Action Decision. Appeal principles [46] Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."10 This is the key issue for my determination. Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission: (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commission considers it appropriate. [47] A public service appeal under the IR Act is not by way of rehearing,11 but involves a review of the decision arrived at and the decision–making process associated therewith. [48] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal. Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.12 [49] Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing. What decisions can the Industrial Commissioner make? [50] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: • confirm the decision appealed against; or • set the decision aside and substitute another decision; or 10 Industrial Relations Act 2016 (Qld) s 562B(3). 11 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). 12 Industrial Relations Act 2016 (Qld) s 567(2). -- 10 of 20 -- 11 • 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. [51] The remedy Mr Condon seeks is that the: …Respondent should rescind the proposed disciplinary action or in the alternative, provide direction to the Appellant to conduct training. Submissions [52] The parties filed written submissions in accordance with the Directions Order issued on 25 October 2022. [53] I have carefully considered all submissions and materials. I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided. Relevant provisions of the PS Act [54] Section 3 of the PS Act provides: 3 Main purposes of Act and their achievement (1) The main purposes of this Act are to— (a) establish a high performing apolitical public service that is— (i) responsive to Government priorities; and (ii) focused on the delivery of services in a professional and non–partisan way; and (b) promote the effectiveness and efficiency of government entities; and (c) provide for the administration of the public service and the employment and management of public service employees; and (d) provide for the rights and obligations of public service employees; and (e) promote equality of employment opportunity in the public service and in other particular agencies in the public sector. (2) To help achieve the main purposes, this Act— (a) fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and … [55] Section 187 of the PS Act relevantly provides as follows (emphasis added): (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— -- 11 of 20 -- 12 … (g) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. [56] Section 188 of the PS Act relevantly provides: 188 Disciplinary action that may be taken against a public service employee (1) In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances. Examples of disciplinary action— • termination of employment • reduction of classification level and a consequential change of duties • transfer or redeployment to other public service employment • forfeiture or deferment of a remuneration increment or increase • reduction of remuneration level • imposition of a monetary penalty • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments • a reprimand Relevant provisions of the Directive [57] Directive 14/20 Discipline (Directive 14/20) relevantly provides (emphasis added): 7. Discipline for conduct 7.1 Section 187 of the PS Act provides a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. 7.2 The circumstances in which a contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action are where the chief executive forms a view that management action is not likely to address and/or resolve the work performance matter. 7.3 In forming a view under clause 7.2, the chief executive must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the chief executive must consider: (a) whether the matter has been assessed as meeting the definition of corrupt conduct and has been referred to the Crime and Corruption Commission, or has been referred to the Queensland Police Service as a potential criminal offence (b) whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration) -- 12 of 20 -- 13 (c) whether implementing management action would eliminate or effectively control the risk to the health and safety of employees, or other people, posed by the alleged conduct (d) whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector (e) whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct (f) if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct. 8. Discipline process 8.1 Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice. 8.2 The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process. 8.3 Show cause process for disciplinary finding (a) The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding): (b) Written details of each allegation in clause 8.3(a) must include: (i) the allegation (ii) the particulars of the facts considered by the chief executive for the allegation (iii) the disciplinary ground under section 187 of the PS Act that applies to the allegation. (c) A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence. (d) The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension. -- 13 of 20 -- 14 (e) If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them. 8.4 Decision on grounds (disciplinary finding) (a) A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities. (b) The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding. (c) For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established. (d) The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. (e) If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action. If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing. 8.5 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 188 of the PS 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 -- 14 of 20 -- 15 (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (ix) the impact a financial penalty may have on the employee (x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/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 8.5(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. 8.6 Decision on disciplinary action (a) A 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 Industrial Relations Act 2016. (c) A 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 -- 15 of 20 -- 16 (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 [58] Mr Condon's appeal is brought on the basis that: • the three allegations should not have been substantiated, on the balance of probabilities; and • "that on the basis of the questionable integrity of the evidence, that the proposed disciplinary action is disproportionate to the conduct alleged." [59] I note there is overlap between the issues, but for completeness I will deal with each of the issues in turn. Ought the three allegations have been substantiated? [60] For the reasons explained above, I decline to hear the appeal against the Disciplinary Finding Decision. Therefore, I am proceeding on the basis that the three allegations have been substantiated - and I will consider whether it was fair and reasonable for the Respondent to impose the Disciplinary Action Decision. Whether the proposed disciplinary action is proportionate to the conduct? [61] Clause 2.1 of the Discipline HR Policy E10 (the Policy) provides that: At any stage of the discipline process the delegate can decide to: • continue with the discipline process • take management action • take no further action.13 [62] The Policy makes it clear that the delegate is not obligated to take action in response to a substantiated allegation. [63] However, cls 7.2 and 7.3 of Directive 14/20 are relevant in determining whether conduct is sufficiently serious to warrant disciplinary action. Clause 7.2 pertains to "circumstances in which a contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action…" Clause 7.3 goes on to outline considerations "in forming a view under clause 7.2…" 13 Attachment One - Discipline Process. -- 16 of 20 -- 17 [64] Mr Juffs decided to discipline Mr Condon because he was satisfied that the substantiated allegations were "sufficiently serious to warrant disciplinary action". Under the express terms of cl 7.3(b), management action could not be considered an appropriate response in the circumstances. [65] It is both commendable and appropriate that Mr Juffs has also decided to support Mr Condon to change his workplace behaviours through a proactive training strategy. In my view, that is required in this case due to Mr Condon's lack of insight and his continuation in a supervisory position. I have also observed Mr Condon's apparent fixation on the shift from what was once a male-dominated kitchen workplace at The Park, to one that is now predominantly female. I would join with Mr Juffs in encouraging Mr Condon to "consider that if you maintain professional, courteous and polite communication with all staff you would not need to tailor your communication style and therefore reduce the risk of having comments or your communication misinterpreted." [66] Further, s 188 of the PS Act provides that (emphasis added): In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances. [67] The seriousness of Mr Condon's conduct is one of a few relevant considerations to determine whether to commence a disciplinary process pursuant to Directive 14/20. [68] I will now proceed to consider whether the disciplinary action was "reasonable in the circumstances". [69] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):14 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. The pluarity in Li said: 14 [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76]. -- 17 of 20 -- 18 … when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful … … there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker … … it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused. … Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. [70] Clause 8.5(d) of Directive 14/20 contains the factors to be considered in "proposing appropriate and proportionate disciplinary action."15 Those factors are as follows: (i) the seriousness of the disciplinary finding (ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations (iii) whether extenuating or mitigating circumstances applied to the employee's actions (iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings (v) the employee's explanation (if any) (vi) the degree of risk to the health and safety of employees, customers and members of the public (vii) the impact on the employee's ability to perform the duties of their position (viii) the employee's potential for modified behaviour in the work unit or elsewhere (ix) the impact a financial penalty may have on the employee (x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee (xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding. [71] Mr Condon submitted that a reprimand was not reasonable in this case. I have earlier observed that the express terms of cl 7.3(b) does not permit management action to be an appropriate response in these circumstances. With respect to the range of disciplinary actions available, Mr Juffs has determined to apply a reprimand - the least severe option available. Following representations made by the AWU, Mr Juffs determined to resile from his initial considerations to demote Mr Condon. [72] On that point, I note that a reprimand is a form of disciplinary action that does not affect an employee's remuneration, classification level or duties. Although the reprimand will 15 Directive 14/20 Discipline cl 8.5(d). -- 18 of 20 -- 19 certainly be marked against Mr Condon's name - and may be a factor in the consideration of any future disciplinary processes initiated against him - in light of the nature of the substantiated allegation, I accept the imposition of a reprimand to be a fair and reasonably proportionate disciplinary action with a view to deterring similar behaviour in the future. [73] Mr Juffs has been circumspect as to Mr Condon's potential to modify his behaviour through additional training alone, in circumstances where he denies wrongdoing and continues to assert that such repeated actions in relation to several subordinates was reasonable. I consider that Mr Condon's failure to recognise the inappropriateness of his conduct is persuasive of a need for a disciplinary action to deter future behaviour of a similar kind and to aid in the potential for modified behaviour. I agree that training would serve to assist Mr Condon to remain in a supervisory position employed at The Park, but something more is warranted here. [74] It has been earlier noted that Mr Condon's commitment to The Park has stretched over 32 years and he has received multiple awards during that time. Mr Juffs also acknowledged that he was "not aware of any previous disciplinary action against you." [75] Further to the above, Mr Condon's role as a supervisor and expected level of awareness are relevant considerations that support the imposition of a disciplinary action rather than management action. [76] The Policy provides that the delegate considers the degree of risk to the health and safety of employees, customers and members of the public in determining an appropriate disciplinary action. Mr Condon's actions clearly disregarded the health and safety of his colleagues. That further supports the imposition of a disciplinary action. [77] On behalf of Mr Condon, the AWU broadly submitted that: …local Management discussion should take place between the parties concerned to address these matters and that the process the Health Service has undertaken has not been undertaken in accordance with agreed Qld Health industrial instruments and is more in line with a "Witch Hunt" of Mr Condon, and more to justify the Health Service's suspending Mr Condon on leave with pay. While I appreciate the union's strenuous representation of its member, that sweeping assertion is insupportable on the evidence before me. [78] I agree with Mr Juffs' assessment of that position, as follows: …I am satisfied that there was ample justification to commence a discipline process and the process has followed the principles of natural justice. The decision to suspend of a stand-alone decision and a disciplinary penalty is not required to justify that decision. [79] In consideration of all the circumstances of this matter, Mr Juffs' determination of the appropriate disciplinary action was extremely measured. -- 19 of 20 -- 20 Conclusion [80] As the appeal against the Disciplinary Finding Decision was filed almost four months out of time with no explanation, I have declined to hear that aspect of the appeal. [81] I find that the Disciplinary Action Decision to impose a reprimand and direct training to be undertaken is fair and reasonable. [82] I order accordingly. Orders: 1. Pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016, I decline to hear the appeal against the Disciplinary Finding Decision. 2. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the Disciplinary Action Decision appealed against is confirmed. -- 20 of 20 --