Connolly v State of Queensland (Department of Resources) [2021] QIRC 308

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Connolly v State of Queensland (Department of Resources) [2021] QIRC 308 PARTIES: Connolly, Paul Eden (Appellant) v State of Queensland (Department of Resources) (Respondent) CASE NO: PSA/2021/211 PROCEEDING: Public Service Appeal – Fair treatment decision DELIVERED EX TEMPORE ON: 2 September 2021 HEARING DATE: 2 September 2021 MEMBER: Dwyer IC HEARD AT: Brisbane ORDERS: 1. The appeal against the decision under review is upheld; and 2. The decision of the decision-maker dated 21 May 2021 is substituted with the decision that Mr Connolly's classification is reduced from AO8/4 to AO8/1. CATCHWORDS: PUBLIC SERVICE - APPEAL - appeal against a fair treatment decision - allegation of inappropriate and/or offensive private messages - allegation of inappropriate and/or offensive comments posted on LinkedIn - disciplinary penalty - reduction in classification level - whether decision and -- 1 of 11 -- 2 LEGISLATION: penalty was fair and reasonable - decision fair and reasonable - penalty not fair and reasonable Industrial Relations Act 2016 (Qld) s 562B, 562C Public Service Act 2008 (Qld) s 187 CASES: Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 APPEARANCES: Mr P E Connolly the appellant Ms T Hocking for the respondent Reasons for Decision Delivered ex tempore on 2 September 2021 Background [1] Mr Paul Connolly is employed by the Department of Resources ('the Department'). His Notice of Appeal filed on 9 June 2021 indicates his substantive position of AO8/4 and his title as Manager, Georesources Policy. [2] On 8 October 2020, Mr Connolly was subject to a disciplinary process. The process required Mr Connolly to address three allegations, namely: 1. On or around 12 June 2020, you sent an inappropriate and/or offensive private message through LinkedIn to Mr Damien Gould, CEO, Building Queensland. 2. During the period July 2019 – August 2020, you posted twenty-one inappropriate and/or offensive comments on or through your LinkedIn profile. 3. On or around 21 August 2020 you sent an inappropriate and/or offensive, private message through LinkedIn to an employee of the Energy Security Board. [3] By correspondence dated 1 February 2021 following a show cause process, during which Mr Connolly was given the opportunity to respond to these allegations, he was informed that the allegations were substantiated. In that correspondence on 1 February 2020, Mr Connolly was told that he could appeal that decision, or he could wait and appeal it and any subsequent penalty decision. -- 2 of 11 -- 3 [4] Mr Connolly subsequently filed a public service appeal in matter PSA/2021/83, but following a mention of that matter on 17 March 2021, Mr Connolly, with the consent of the Department, withdrew that appeal specifically for the purposes of incorporating the matters the subject of that appeal with any subsequent penalty decision appeal that he might bring. [5] Some confusion arose at the hearing on 2 September 2021 because the subsequent penalty decision did not, in my view, clearly reflect this process and erroneously gave me the impression that the substantiated allegations were not subject to challenge. To be clear, I do not regard the confusion to be in any way deliberate. It is perhaps more likely due to a misinterpretation of the language in the penalty decision letter. [6] The matter has subsequently been addressed with the parties on the record, and it ultimately became a matter of agreement between the parties that both the substantiation of the allegations and the penalty decision are to be the subject of this appeal. [7] On 21 May 2021, Mr Connolly received a letter informing him of the penalty to be imposed in respect of the substantiated allegations, namely that he would be reduced in classification from AO8/4 to AO7/4, Principal Policy Officer, with a subsequent change to duties. [8] Mr Connolly now appeals both the demotion and the substantiation of the allegations. Statutory framework for public service appeals [9] Section 562B of Industrial Relations Act 2016 (Qld) provides that these appeals are conducted by way of review. It is not a re-hearing of the merits of the decisions in relation to substantiation and penalty.1 The focus of my consideration in respect of this review is to determine whether the decision was fair and reasonable.2 [10] I have a jurisdiction that is limited to making one of the following orders. I can:3 (a) confirm the decision appealed against; or (b) for a promotion decision - 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 (c) for another appeal - set the decision aside and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 1 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 2 Industrial Relations Act 2016 (Qld) s 562B(3). 3 Ibid s 562C. -- 3 of 11 -- 4 Submissions of the parties [11] Parties have filed extensive written submission in this matter to which I have had regard. Mr Connolly further had an opportunity to make submissions at the hearing on 2 September 2021 and to the extent that he responded to a number of questions, he effectively aided in informing me of matters which (he submitted) support his arguments. [12] Mr Connolly essentially says that the allegations do not rise to the standard of misconduct found by the decision-maker and further argues that mitigating circumstances that he had raised alleviate much of the gravity of the conduct that is the subject of the allegations. [13] Mr Connolly, at the proceedings on 2 September 2021 and in submissions, has acknowledged that a reprimand would be a more appropriate sanction in respect of these matters. [14] Without needing to delve into the detail of their submissions, the Department has stood by its process and its decision as being fair and reasonable. Consideration [15] I now turn to my consideration in respect of the allegations. Allegation 1 [16] Allegation 1 was that: On or around 12 June 2020, you sent an inappropriate and/or offensive private message through LinkedIn to Mr Damien Gould, CEO, Building Queensland. [17] Mr Connolly acknowledges that his LinkedIn account is broadly publicly accessible and that it identifies him by name, and also identifies his employer. He also acknowledged in submissions at hearing that he understands the public nature of LinkedIn as a social media platform. [18] In a private message to Mr Gould, Mr Connolly made the following comment: Haha. That skanky moll Trad is dead. Roll on Halloween. I can't wait till our beautiful State is done with these Communist grubs. It's time to shine. You shouldn't have been so tight with these Communist pigs. [19] In the proceedings on 2 September 2021, Mr Connolly admits to sending this message. Mr Connolly's initial responses however, including his draft apology to Mr Gould, were a little less than candid. -- 4 of 11 -- 5 [20] While Mr Connolly has adequately explained his reluctance to be completely frank in respect of his response to this allegation i.e. that he was afraid of the show cause process and he was afraid of the consequences for him, it was this lack of candour that was in the mind of the decision-maker when determining the substantiation and the severity of the penalty. I equally consider this lack of candour on the part of Mr Connolly as an indication of his lack of insight and to some extent, a lack of contrition. [21] While I accept (and I am pleased) that Mr Connolly now fully accepts responsibility and is now able to genuinely express remorse, I would be more impressed if he had been fully open and honest about this matter from the beginning. [22] The message itself uses language that, objectively, is highly offensive. It is language that is both aggressive and misogynistic. Mr Connolly has attempted to weave the notion of political bias into his written submissions. Clearly this is a further indication that he does not fully appreciate that such language is offensive regardless of the political context. [23] The decision-maker found that this conduct amounted to misconduct within the meaning of s 187(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act'). Section 187(4) defines misconduct as meaning: (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service. [24] I agree entirely with this conclusion. Such language is highly inappropriate, but especially so coming from a senior public servant. [25] Mr Connolly alleges some professional friendship or acquaintance with Mr Gould. Yet Mr Gould still found the message sufficiently concerning and inappropriate to make a complaint about it, which suggests to me that the relationship alleged by Mr Connolly was not on the same level and not shared in the same way by Mr Gould. [26] In the circumstances where Mr Connolly sent this message from a LinkedIn account identifying him by name, and in particular, identifying him as being employed by the Department, I have no difficulty in agreeing with the finding that behaviour was inappropriate and improper conduct in a private capacity that reflects seriously and adversely on the public service. [27] Having regard to his submissions, Mr Connolly apparently fails to appreciate that when using social media, whatever hour of the day or night and in whatever context, any social media account that identifies you by reference to your employer will draw conduct into the territory of the relationship between employer and employee. It is widely uncontroversial that behaviour of employees on social media can be the subject of -- 5 of 11 -- 6 regulation and sanction by an employer if that behaviour is inappropriate and reflects poorly on the employer. [28] Further, again having regard to his submissions, Mr Connolly seeks to rely on the extensive mitigating circumstances, particularly those in relation to his medical condition during the relevant period. Whatever mitigating factors might be relevant (and there are mitigating factors that are relevant in Mr Connolly's case) they can in no way change the fact that this conduct is comfortably characterised as misconduct within the meaning of the PS Act. [29] I will address the mitigating factors, and their impact on this matter overall, in my consideration with respect to penalty. Allegation 3 [30] For convenience I will deal now with allegation 3 because it is conduct that is of a very similar nature to the conduct in relation to allegation 1. Allegation 3 is that: On or around 21 August 2020 you sent an inappropriate and/or offensive, private message through LinkedIn to an employee of the Energy Security Board. [31] The nature of the message (again, sent late on a Friday evening) was that it again came from Mr Connolly's public LinkedIn profile identifying his employer. [32] The message reads: I saw you liked the fantasy of the ISP. I thought you were a rational economist. Why do you like these stupid ISP ideas? It discredits your opinion. When Government's (sic) change that view won't be entertained. I'm gobsmacked Kerry Schott has survived. It won't be long. [33] As an objective viewer of that message, I am was initially unable to appreciate a number of the terms, and the effect, and tone of that message. I was not immediately bale to identify why it was inappropriate. During the course of the hearing Mr Connolly was able to explain to me the meaning of ISP and the identity of Ms Schott. [34] Having considered his explanation I am satisfied that it was essentially a message denigrating Ms Schott and suggesting political patronage from a former Prime Minister in a way that implies she was not worthy of the role. It is also inappropriately disparaging of the recipient's opinion about 'ISP'. [35] In this instance as with the last, the recipient of the message was sufficiently offended to complain about it. Again, Mr Connolly has suggested some level of professional acquaintance with the recipient, but that is contradicted by the fact that, again, this -- 6 of 11 -- 7 recipient was perturbed enough by the message to elevate it to status of a formal complaint. [36] For all of the same reasons that I set out above, in respect of allegation 1, I have no difficulty concluding that this conduct rises to the level of misconduct within the meaning of s 187(1)(b) of the PS Act, in that it was behaviour that was inappropriate and improper, in a private capacity, that reflects seriously and adversely on the public service. Allegation 2 [37] In relation to allegation 2, the allegation is that: During the period July 2019 – August 2020, you posted twenty-one inappropriate and/or offensive comments on or through your LinkedIn profile. [38] The comments referred to are numerous. They take the form of social media 'comments' that are generally in response to posts by other persons on the LinkedIn platform. There is no question that the conduct is repeated over many months, which is not unusual on social media platforms where people visit those platforms on a daily or regular basis. [39] Having regard to all 21 of the comments, a number of them are individually not what I would consider to be grossly offensive or inappropriate. However, each comment considered with the others (as a course of conduct) indicates a propensity on the part of Mr Connolly to make acerbic and (in one case) racist comments. [40] The finding in relation to allegation 2 was that Mr Connolly had contravened a standard of conduct, and the reference was to clause 1.5 of the Code of Conduct for the Queensland Public Service, which reads, relevantly: 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 b. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment c. ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients d. ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and e. comply with legislative and/or policy obligations to report employee criminal charges and convictions. -- 7 of 11 -- 8 [41] Mr Connolly made each of the comments from an account which identified him by name and identified his employer. [42] In respect of the comments, whilst I have indicated that some of them on their own are not obviously offensive, there are three examples which in my view are. [43] In the case of one comment, there is a reference to an article about Kareem Abdul-Jabbar, and Mr Connolly's comment in response to that article is: He should focus on teaching his son not to stab people. Hyprocrite. [44] While that comment might be considered an entirely fair observation or an opinion expressed by an individual using social media in a private capacity it is, as I said, somewhat acerbic and to some extent inappropriate given that Mr Connolly's identity and his employer are clearly referenced by reference to his LinkedIn account. [45] Further, there is a comment in response to an article with respect to natural gas. Mr Connolly's comment is: The green zealots will shout you down but the grown ups realise that you are right. [46] In that comment (without having to consider the political ideology involved) it is clearly of the character of denigration of a contrary opinion with respect to that issue i.e. by suggesting those who support environmental causes are either irrational or childish (or both). [47] Finally, and probably most significantly, there is a racist comment in respect of an article involving Afterpay and eBay, Mr Connolly comments: Agree, so long as ebay doesn't sell any Chinese crap. We should be very careful to ensure this China caused crisis does not assist China. Had the CCP told the truth early on the world could have avoided all of this pain. Disgusting scum. [48] While I accept that the views expressed by Mr Connolly in that post are popularly held by some people in the community, the subject remains hugely controversial and the theories unproven to any reliable extent. Further, terms like 'Chinese crap' infer a connection between race and the quality of the product. It is the tone of the comment and the way in which the language is used that make it inappropriate and offensive. [49] In particular, it is again a comment that is made by Mr Connolly on an account that identifies him by name and one that readily identifies him as being employed by the Department. It is, yet again, another example of Mr Connolly's lack of insight into his responsibilities to exercise discretion when using social media for comments when his employer is identifiable. -- 8 of 11 -- 9 [50] In the circumstances, having regard to the comments, but particularly those that I held out for special example, I find that the conclusion of the decision-maker in respect of substantiating allegation 2 was open to that decision-maker on those facts. Conclusion regarding allegations [51] Having regard to my consideration above, the substantiation of the allegations by the decision maker was, on the whole, fair and reasonable in all of those circumstances. Penalty [52] I now turn to my consideration with respect to penalty. [53] The penalty proposed in the decision of 21 May 2021 is that Mr Connolly's classification be reduced from AO8/4 to AO7/4. [54] I was informed at the hearing that there are three levels between AO8/4 and AO7/4, namely AO8/3, AO8/2 and AO8/1. I was informed at the hearing by Ms Hocking and Mr Connolly that the reduction in classification will produce a reduction in gross annual income for Mr Connolly of approximately $12,000.00. [55] I was informed by Ms Hocking at the hearing that notwithstanding the demotion, there is no barrier to Mr Connolly applying for a promotion at any later stage and returning to a substantive AO8/4 position, if a position became available and he was successful in obtaining that position. [56] Finally, I am also conscious that Mr Connolly has previously (and relatively recently) voluntarily relinquished a much more senior role with the public service of a substantive SO1. Clearly, Mr Connolly is and has been a relatively senior public servant over many years. Mitigating factors [57] There are significant factors of mitigation in Mr Connolly's case. Mr Connolly submits that one of those factors is contrition. I do not agree. I am not entirely convinced that Mr Connolly has expressed contrition in a timely way. [58] During the hearing, Mr Connolly clearly appeared to acknowledge and take responsibility for his actions. I was convinced of his contrition at the time of the hearing. Yet throughout the course of the show cause process leading to the decisions, Mr Connolly made numerous attacks on that process alleging, amongst other things, personal and political bias on the part of persons involved. -- 9 of 11 -- 10 [59] While all employees subject to such a process have the right to raise legitimate challenges, those raised by Mr Connolly were entirely unsupported by any evidence and without substance. They are the type of challenges that indicate a troubling degree of obfuscation and evasion on the part of Mr Connolly in circumstances where the conduct that is the subject of the allegations is indefensible and largely admitted. [60] Mr Connolly's ongoing challenge to the substantiation of the allegations, while it is something that he is entitled to do, is an indication that he still does not fully appreciate the gravity of the making of such comments, either publicly or in unsolicited messages to former work acquaintances from a social media account where his employer is identified. Overall, I doubt the sincerity in Mr Connolly's contrition and insight in relation to these matters. [61] By contrast, I have no doubt that Mr Connolly was significantly unwell between June 2019 and August 2020 when the bulk of these matters occurred. I note from submissions made at hearing and from the written submissions that much (if not all) of the conduct that is the subject of these allegations coincides or sits in close proximity to his experiencing of quite significant medical issues. Mr Connolly was already quite unwell due to unrelated workplace issues by the time the conduct in question emerged. [62] I further note that there is no similar or other disciplinary history that is alleged by the Department, and that Mr Connolly has otherwise had a lengthy and successful career in the public service at senior levels, unblemished by any other controversy. [63] Having regard to the allegations as a whole, there is a range of conduct that extends from disturbing to innocuous. For example, many of the social media quips that are the subject of allegation 2 are fairly innocuous albeit ill-advised given they were sent from an account identifying his employer. [64] Further, allegation 3, sent in the context of a private message, may have been made more confronting by the fact that the recipient had not had any recent or expected contact with Mr Connolly and was thus troubled by it. In an appropriately familiar relationship the comment may have been capable of being characterised as innocent but robust banter. In this sense it is likely that poor judgment by Mr Connolly was a large factor. [65] Having regard to the medical evidence submitted by Mr Connolly (which is not challenged) and in all of the circumstances set out above, I consider that the behaviours displayed by Mr Connolly in the period between June 2019 to August 2020 were almost certainly (and significantly) contributed to by his significant health issues. [66] While the decision-maker expresses awareness and consideration of those health issues, having regard to Mr Connolly's otherwise good work history, I am not satisfied the -- 10 of 11 -- 11 decision maker has had proper regard to the medical condition affecting Mr Connolly and its contribution to his conduct overall. [67] The conduct the subject of the allegations is plainly very much conduct that is out of character for Mr Connolly. The medical evidence describes Mr Connolly as being quite unwell. The contrast in his conduct to his otherwise unblemished and successful employment record demands a greater degree of fairness than was shown to Mr Connolly. Consideration of penalty [68] Determining a penalty in these types of matters is often an instinctive process, and while I would ordinarily be loath to disturb a decision-maker's finding on a review of this nature, I consider in this matter a reduction in grade by four levels is excessive. [69] Having regard to the serious medical issues and the extent to which they impaired Mr Connolly's judgment during the relevant period, I consider that the penalty imposed is unfair. [70] In the circumstances, I propose to substitute a decision in respect of penalty that the reduction in classification be from AO8/4 to AO8/1. Order [71] In the circumstances, I make the following orders: 1. The appeal against the decision under review is upheld; and 2. The decision of the decision-maker dated 21 May 2021 is substituted with the decision that Mr Connolly's classification is reduced from AO8/4 to AO8/1. -- 11 of 11 --