Cook v State of Queensland (Queensland Health) [2024] QIRC 214

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cook v State of Queensland (Queensland Health) [2024] QIRC 214 PARTIES: Cook, Ian (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2023/172 PROCEEDING: DELIVERED ON: Public Sector Appeal – Disciplinary Decision 30 August 2024 MEMBER: HEARD AT: Power 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: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 131 of the Public Sector Act 2022 (Qld) – whether substantiation of allegations was fair and reasonable – whether disciplinary finding of misconduct was fair and reasonable – decision fair and reasonable – appeal dismissed. LEGISLATION AND OTHER INSTRUMENTS: Discipline Direction 05/23, cl 5, cl 7 Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Sector Act 2022 (Qld), s 91 -- 1 of 24 -- 2 CASES: Australian Competition and Consumer Commission v Productivity Partner Pty Ltd (Trading as Captain Cook College) (No 4) [2021] FCA 752 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Goodall v State of Queensland [2018] QSC 319 Mathieu v Higgins [2008] QSC 209 Reasons for Decision Introduction [1] Mr Ian Cook ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as the Director, Program Performance, Health Capital Division. [2] By letter dated 31 May 2023, Mr Damian Green, Acting Deputy Director-General, Corporate Services Division, ('the decision maker') wrote to the Appellant inviting him to show cause in relation to the following allegations – 1. In your application for the position of Manager, Program Management Office, Capital and Asset Services, Corporate Services Division, Queensland Health submitted on 12 April 2022 as part of recruitment process QLD/CSD412432, you provided misleading and/or incomplete information which was relied upon by Queensland Health in appointing you to the position. 2. In your application for the position of Director, Program Performance, Health Capital Division, Queensland Health submitted on 9 September 2022 as part of recruitment process QLD/HCD440280, you provided misleading and/or incomplete information. 3. In your application for the position of Director, Program Performance, Health Capital Division, Queensland Health submitted on 5 October 2022 as part of recruitment process QLD/HCD446440, you provided misleading and/or incomplete information which was relied upon by Queensland Health in appointing you to the position. [3] The Appellant provided a response to the show cause notice on 12 June 2023. [4] On 28 August 2023, the decision maker notified the Appellant of his determination in relation to disciplinary findings and proposed disciplinary action ('the decision'). -- 2 of 24 -- 3 [5] The decision maker found that Allegation 1, Allegation 2, and Allegation 3 were substantiated, and determined pursuant to s 91(1)(b) of the Public Sector Act 2022 (‘the PS Act’) that the Appellant was guilty of misconduct by engaging in inappropriate or improper conduct in an official capacity. [6] The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of termination of his employment. [7] On 4 September 2023, the Appellant filed an appeal notice appealing against a disciplinary decision dated 28 August 2023 pursuant to s 131(1)(c) of the PS Act. [8] The issue for determination is whether the disciplinary finding was fair and reasonable. Legislative Framework [9] Section 91 of the PS Act provides the following grounds for discipline: 91 Grounds for discipline (1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— (a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or (f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (g) contravened, without reasonable excuse, a provision of— (i) this Act, other than section 39 or 40; or (ii) another Act that applies to the employee in relation to the employee's -- 3 of 24 -- 4 employment; or (h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. (3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95. (4) To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles. (5) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed. Example of misconduct— victimising another public sector employee in the course of the other employee's employment in the public sector relevant standard of conduct — (a) for a public sector employee, means— (i) standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or (ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and (b) for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and (c) for a public sector employee who is a fire service officer under the Fire Services Act 1990—includes a code of practice under section 7B of that Act. responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law. [10] Clause 5.3 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector: -- 4 of 24 -- 5 5.3 Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law. [11] Clause 7 of the Directive provides the requirements to commence a discipline process: 7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91. 7.2 Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess: a. the seriousness of the employee's personal conduct and/or work performance, and b. whether the matter should be resolved through management action instead, and c. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and 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, and 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, and 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, and g. whether further information is required to make a decision to commence a disciplinary process, and h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter. -- 5 of 24 -- 6 Appeal principles [12] The appeal must be decided by reviewing the decision appealed against.1 As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [13] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination in this matter is whether the decision by the Respondent to substantiate the allegations and make a disciplinary finding was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [14] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) 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. Grounds of appeal [15] In the appeal notice, the Appellant provided the following reasons for appeal: The letter from the A/DDG, Corporate Services Division dated 28/08/2023 found that 3 separate allegations (that I provided misleading and/or incomplete information as part of my applications for three separate recruitment processes) were substantiated, and found that I was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the PS Act. Despite the A/DDG's findings, I maintain that I did not deliberately mislead Queensland Health. I responded to the Show Cause Notice truthfully and honestly and provided supporting documentation as well as an explanation of what had transpired. I am of the view that the explanations and supporting documentation provided in my response to the Show Cause Notice demonstrated that no finding of misconduct should be made. I consider that the decision to find the allegations substantiated and that you are guilty of misconduct is unfair and unreasonable. 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland & Anor [2018] QSC 319, 5. 4 IR Act, s 562B(3). -- 6 of 24 -- 7 In the decision, the A/DDG advises that he did not accept much of the information in my response to the show cause notice, including describing some of the submissions as "implausible" and "self-serving and to reflect poorly on your credibility" and "false and not made in good faith" and that I "knowingly and deliberately included incomplete and misleading information in your application". In the decision, the A/DDG places significant emphasis on a perceived "inconsistency" between my submission that I held a "reasonable assumption" that all required disclosures had already been made, and my submission that my failure to update my resume was an "inadvertent oversight". Respectfully, there is no "inconsistency". I maintain that, in my belief that all of the required disclosures had already been made and that the matter had been concluded many months previous (as part of the QLeave process), I considered that I was OK to continue my career in the Queensland Public Service, and I simply did not turn my mind to updating that section of my resume when applying for the new roles. After citing this perceived "inconsistency", the A/DDG goes on to state "where you have failed to put forward any credible explanation... ...I consider it more likely than not that you knowingly and deliberately included this information to improve your chances of being selected for appointment". I maintain that the explanation I provided was both credible and truthful and that the A/DDG in dismissing my truthful explanation as not credible, has reached an unfair decision (that I am guilty of misconduct and proposes termination of my employment) that will have a significant adverse affect [sic] on my career. Accordingly, I am appealing the decision made by the A/DDG as I believe it is unfair and unreasonable.5 Submissions [16] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Appellant's Submissions [17] In support of the Appeal, the Appellant submits the following: • The Appellant did not deliberately mislead the Respondent. The Appellant's Response to the Show Cause Notice ('the Response') was truthful and honest and provided supporting documentation as well as an explanation of what had transpired. • The Response demonstrated that no finding of misconduct should be made. The Appellant further believes that the decision to find the allegations substantiated and that the Appellant was guilty of misconduct is unreasonable and unfair. 5 Appellant's Appeal Notice, filed 4 September 2023, pg 4. -- 7 of 24 -- 8 • If a decision is made that misconduct has occurred, then the decision should be based on the facts of the circumstances as outlined in the Response, being that it was a single, inadvertent oversight, and not three deliberate acts of deceit. In light of those facts, to propose a penalty of termination of the Appellant's employment is unfair and unreasonable, and the Appellant submits that an alternative and less severe penalty should be proposed. • In the decision, the decision maker advised that he did not accept much of the information in the Response, including describing some submissions as 'implausible', 'self-serving and to reflect poorly on your credibility', 'false and not made in good faith', and stating that the Appellant 'knowingly and deliberately included incomplete and misleading information in your application'. • In the decision, the decision maker put significant emphasis on a perceived 'inconsistency' between the Appellant's submission that he held a 'reasonable assumption' that all required disclosures had already been made, and the Appellant's submission that his failure to update his resume was an 'inadvertent oversight'. • The decision maker did not adequately explain why he perceived an 'inconsistency' existed. • The Appellant submits there is no 'inconsistency'. The Appellant maintains that he believed that all required disclosures had already been made to the Queensland Public Service and that the matter had been concluded many months prior as a part of the QLeave process. The Appellant considered that the required disclosures had been made and that he could put the federal court matter behind him. The Appellant states that he had been advised of this in writing by QLeave’s general manager. The Appellant believed that he was now okay to continue his career in the Queensland Public Service, and with that mindset he simply failed to turn his mind to whether he needed to update the section of his resume regarding his experience as CEO of Productivity Partners when applying for new roles. • In the decision, the decision maker clarifies that it is not alleged that the figures included in the summary of the Appellant’s performance in the CEO role were inaccurate, or that the Appellant embellished or exaggerated his achievements in the CEO role. • The Appellant does not generally disclose the outcome of the federal court matter to others unless he feels obliged to do so. Where the Appellant considers that an obligation to disclose exists, the Appellant makes the required disclosures to the relevant parties. This is evidenced in the -- 8 of 24 -- 9 disclosures made to QLeave, which were included as attachments to the Response. • Although the Appellant held the belief that all required disclosures to the Queensland Public Service had been made and that the matter had been finalised during his time with QLeave, the Appellant was cognisant during the relevant recruitment processes that an obligation to disclose the outcome of the federal court proceedings may arise again. For example, if the Appellant was asked to provide information regarding his civil law history as part of the Pre-Employment check phase of the relevant recruitment processes. However, the Respondent did not request any information regarding the Appellant’s civil law history as part of the pre-employment check phase, nor did the Appellant consider at any stage during the relevant recruitment processes that an obligation to make an additional disclosure had arisen. • The Appellant maintains that he submitted the applications, provided the requested pre-employment check information, accepted the letters of offer, and entered the employment contracts in good faith. • The Appellant argues that if the Respondent is of the view that a person’s civil law history is relevant to its decision on whether to enter an employment contract, then respectfully, it should include such specific inquiries in the due diligence phase of its recruitment processes. The Appellant understands that other organisations with the Queensland Public Service request civil law history information as part of the pre-employment processes (such as the Queensland Police Service and the Crime and Corruption Commission). • In the decision, the decision maker advised that he did not accept that the Appellant had assumed, or that it was reasonable for the Appellant to assume, that QLeave would share information with the Respondent regarding his disclosures of the Federal Court matter. The Appellant did not hold that assumption, and he is unsure what led the decision maker to believe that he held that assumption. • After citing the erroneous perceived ‘inconsistency’ between the ‘reasonable assumption’ and the ‘inadvertent oversight’, the decision maker goes on to state in the decision ‘where you have failed to put forward any credible explanation… …I consider it more likely than not that you knowingly and deliberately included this information to improve your chances of being selected for appointment’. • Having formed the view that the Appellant had ‘knowingly and deliberately’ misled the selection panel, the decision maker goes on to find that the three -- 9 of 24 -- 10 declarations made as part of application process, being that the information contained in the Appellant’s application was true and accurate, were false and not made in good faith. • The Appellant maintains that the explanation he provided in his Response was both credible and truthful, and that he made the declarations in good faith. The Appellant argues that the decision maker in dismissing the Appellant’s truthful explanation as not credible has reached an unfair decision that will have a significant adverse effect on the Appellant’s career. • Procedural fairness requires that a person be given a fair hearing before a decision adversely affecting the person’s rights and interests is made. In dismissing the Appellant’s truthful explanation of the circumstances in the Response as not credible, the decision maker has failed to meet the requirement of a ‘fair hearing’ prior to making his decision. • The Appellant considers the decision maker’s findings that the Appellant has behaved in a dishonest manner during the 3 recruitment processes and in his Response to be inconsistent with the fact that: a. In the Appellant’s 7 years working for the Queensland Government there has never been any evidence of dishonesty; and b. As a result of the comprehensive review of the Appellant’s conduct as CEO of Productivity Partners performed by the ACCC as part of the investigation that led to the federal court decision, they found that ‘There is no allegation of dishonesty on the part of Cook.’ • The Appellant submits that he is not a person who would ever be motivated to deliberately mislead a potential employer/selection panel in order to gain a job offer. As well as being in breach of the Queensland Public Service Code of Conduct, a job offer solicited under such circumstances would be an undermining presence every single day that the Appellant attempted to perform the required duties of the role. It is not a situation that the Appellant wishes to find himself in. • The Appellant further submits that even if he was the ‘type of person’ who was motivated to deliberately mislead a selection panel in order to solicit a job offer, the circumstances are such that no one of sound mind would behave in the way that the decision maker has described in his decision due to the following: a. Australia is currently experiencing economic conditions of full employment as well as a skilled labour shortage. In such an -- 10 of 24 -- 11 economic climate there is simply no need for the Appellant to deliberately mislead potential employers to get a job commensurate with his skills, qualifications, knowledge, and experience. b. As evidenced by the selection reports attached to the Show Cause Notice, the Appellant interviews sufficiently well for it to not be necessary for him to deliberately mislead potential employers in order to gain a role commensurate with his skills, qualifications, knowledge, and experience. c. The Respondent is one of Queensland’s largest employers and has thousands of roles in accounting, administration, and project management. The organisation is constantly recruiting and seeking to attract suitable candidates for these roles. It is not necessary for the Appellant to deliberately mislead a selection panel in order to gain a position within the organisation that is commensurate with his skills, qualifications, knowledge, and experience. d. The Respondent is not so exclusive or desirable an employer to warrant a person to deliberately seek to mislead selection panels to join or be promoted within the organisation. • The Appellant argues further that it is implausible for a person to act in the manner that the decision maker has described in his decision for the following reasons: a. For the Manager position, accepting the letter of offer came with the significant opportunity cost of foregoing the Appellant’s permanent substantive role at QLeave. The Appellant accepted the letter of offer in good faith and was confident of ongoing employment in the Queensland Public Service. This was important for the financial security of the Appellant’s family. The Appellant did not accept the letter of offer with the knowledge that he had deliberately included incomplete and/or misleading statements in order to improve his chances of being selected. Doing so would have unnecessarily put the Appellant’s family’s financial security at risk. b. For the Director position, given that the Appellant had already been working in the Health Capital Division Program Management Office (‘PMO’) in the Manager role and had performed those duties to a high standard for a number of months, and the Director role was so similar in nature to the Manager role that the most relevant experience for the selection panel to consider to assess the Appellant’s suitability for the role was clearly going to be that which the Appellant gained in the Manager role. The Appellant asserts that no one of sound mind would deliberately seek to mislead the selection panel regarding -- 11 of 24 -- 12 a role which the Appellant had left almost 8 years previously and would have little (if any) effect on the panel’s assessment of the Appellant’s suitability for the role being recruited for? The Appellant argues that to take such an unnecessary risk for so little potential gain would be implausible in the circumstances. • The Appellant submits that despite the federal court decision, he still has a life to lead, a family to provide for, and a contribution to make to his community. The Appellant considers himself to be a person of integrity and someone who always strives to act in accordance with the Queensland Public Service Code of Conduct. The Appellant argues that he has not, and would never, act in the manner that the decision maker has described in his decision. In dismissing the Appellant’s truthful explanation of the circumstances surrounding the matter as not credible, the decision maker has failed to adhere to the principles of procedural fairness, and the decision to substantiate the allegations and to propose a disciplinary action to terminate the Appellant’s employment is unfair, unreasonable, and represents an unwarranted violation of the Appellant’s human right to take part in public life through employment in the public service. Respondent's Submissions [18] The Respondent filed submissions which are summarised below – Background • Between March 2013 and February 2017, the Appellant was employed as the Director and CEO of Productivity Partners Pty Ltd (trading as Captain Cook College (‘the College’)) (‘the CEO Role’). • On 2 July 2021 and 5 July 2021, the Federal Court of Australia found that between 7 September 2015 and 18 December 2015, the College had engaged in, and the Appellant was knowingly concerned in or was a party to, systemic unconscionable conduct contrary to s 21 of the Australia Consumer Law. The Federal Court disqualified the Appellant from managing corporations for three years, ordered him to pay a penalty of $250,000, and ordered him to make a contribution towards the costs of the ACCC. • The Appellant commenced employment with the Respondent in May 2022. Review of Decision • The Respondent notes that the Appellant appears to be attempting to appeal both the disciplinary findings made against him and the proposed disciplinary -- 12 of 24 -- 13 action of the termination of his employment. The decision maker has not made any decision about what disciplinary action, if any, will be taken against the Appellant as a result of the disciplinary findings made against him. The Respondent argues that the Commission has no power to determine an appeal against proposed disciplinary action. The Respondent further argues that the Commission does not have jurisdiction to determine whether the proposed penalty is fair and reasonable. • The Respondent submits that the decision to make disciplinary findings against the Appellant was fair and reasonable. The decision maker’s findings were reasonably open to the decision maker on the evidence available at the time. The Respondent repeats and relies on the decision maker’s reasoning as set out in the decision. • The Appellant does not dispute that his applications that are the subject of the allegations against him included information that was incomplete and/or misleading. However, the Appellant claims his conduct should be considered ‘a single inadvertent oversight, not three deliberate acts of deceit’. • Where the Appellant has not put forward any credible explanation for his conduct, it was reasonably open to the decision maker to find, on the balance of probabilities, that the Appellant had knowingly and deliberately included the incomplete or misleading information to improve his chances of being selected for appointment to the relevant position. • The Appellant suggests that if the Respondent considered his civil law history was relevant, it should have requested this information as part of its preemployment process. As set out in the decision, the decision maker did not consider there was any obligation on the Appellant to disclose his civil law history as a whole. However, the Appellant was required to provide a complete and accurate summary of his relevant work history, including his performance in the CEO role. Further, to the extent his CV specifically referred to his performance in the CEO role, he was required to provide a complete and honest account of his performance in that role. • The Appellant’s previous conduct that was the subject of the Federal Court’s findings against him had a material impact on certain figures included in his CV (specifically, the turnover and profits of the College during the 2016 financial year). This conduct had serious consequences for the College, including reputational damage and potential fines/costs orders. By failing to mention these findings anywhere in the job applications he submitted to the Respondent, the Appellant misled the relevant selection panels about his performance in the CEO role (which he represented was positive) and failed to provide a complete and accurate summary of his relevant work history. -- 13 of 24 -- 14 • The Respondent disputes the Appellant’s assertion that he put forward a credible explanation for his conduct that was the subject of the findings against him. • The Respondent argues that it was reasonably open for the decision maker to consider that the Appellant’s submissions that his conduct was the result of an ‘inadvertent oversight’ were implausible. • The Federal Court’s decisions, which were published just over nine months prior to the date on which the Appellant submitted his application that was the subject of Allegation 1, had significant consequences for the Appellant. In particular, he was disqualified from managing corporations for three years, personally ordered to pay a $250,000 fine, and ordered to make a contribution towards the costs of the ACCC. Given the significance of the recently published decisions for the Appellant, they would have been at the forefront of his mind at the time that he submitted his applications. The Respondent submits that this conclusion is consistent with the Appellant’s submission that he was ‘cognisant’ that an obligation to disclose the Federal Court’s decisions may arise during the relevant recruitment processes. In the circumstances, it was open to the decision maker to not accept as credible the Appellant’s explanation that he simply overlooked the need to refer to them on each of the three occasions in which he updated and submitted his CV between April and October 2022. • For the reasons set out in the decision, it was also reasonably open to the decision maker to reject the Appellant’s submission that he omitted to mention the Federal Court’s decisions based on his ‘reasonable assumption’ that all required disclosures had been made to his previous employer, QLeave. • The decision maker did not accept this assumption was reasonable as QLeave is a separate government entity and is unable to share information about its employees with the Respondent. • The Appellant now submits that he did not at any time hold an assumption that QLeave would share information about the Federal Court’s decisions with the Respondent. It is therefore unclear on what basis the Appellant believed that his disclosures to QLeave discharged his obligation to provide complete and accurate information about his relevant work history to the Respondent. • The Appellant was required to provide a complete and accurate summary of his relevant work history, including a complete and honest account of his performance in the CEO role, to the Respondent’s selection panels assessing -- 14 of 24 -- 15 his suitability for the positions for which he applied. The information the Appellant provided to QLeave did not obviate this requirement and there was no reasonable basis for Mr Cook to assume that it did so. • In his Response, the Appellant submitted that he did not make ‘additional disclosures’ to the Respondent regarding the decisions of the Federal Court ‘based on a reasonable assumption that all required disclosures had already been made to the Queensland Public Service’ by way of his provision of information about the Federal Court’s decisions to QLeave; and the failure to update his CV to refer to the Federal Court’s decisions was an ‘inadvertent oversight’. • Those submissions are plainly inconsistent. The Appellant’s failure to mention the Federal Court’s findings against the College and himself during the relevant recruitment processes could not have been both a conscious decision based on his misguided belief that ‘all required disclosures had already been made’ and a mistake due to inadvertence. In the circumstances, it was open to the decision maker to consider the explanations put forward by the Appellant were inconsistent and reflected poorly on his credibility. • The Appellant claims that because the decision maker did not accept his explanations for the conduct that was the subject of the allegations against him, he has been denied a ‘fair hearing’. • The Respondent submits that it is clear from the correspondence in this matter that the decision maker carefully considered all the material before him, including the Appellant’s explanations in relation to his conduct that was the subject of the allegations against him, prior to making disciplinary findings against him. The Respondent argues that the Appellant has been afforded procedural fairness. • The Respondent disputes the following assertions made by the Appellant in his submissions: a. there is no evidence that he has acted dishonestly during his employment in the public sector. In light of the decision-maker's findings, there is evidence that [the Appellant’s] conduct was dishonest on the basis that he knowingly and deliberately provided incomplete and/or misleading information to [the Respondent] on three separate occasions; b. the decision-maker's findings are "inconsistent" with the fact that the ACCC did not allege [the Appellant] acted dishonestly. While the ACCC did not allege [the Appellant] acted dishonestly, the Federal Court found [the Appellant] was knowingly concerned in or a party to systemic unconscionable conduct contrary to the Australian Consumer Law. In any event, the decision-maker's findings that [the Appellant] knowingly and deliberately provided incomplete and/or misleading information to [the Respondent] on -- 15 of 24 -- 16 three separate occasions is separate and distinct from [the Appellant’s] conduct the subject of the Federal Court proceedings; c. it was not necessary for him to "deliberately mislead" [the Respondent] in order to get a job commensurate with his skills, qualifications, knowledge and experience. Given the seriousness of [the Appellant’s] conduct the subject of the Federal Court decisions, and the nature of the positions to which [the Appellant] was appointed, the decision-maker found that, had [the Appellant] provided a complete and accurate summary of his performance in the CEO role which included information about the Federal Court decisions, he would not have been considered suitable for, and ultimately appointed to, the Manager and Director positions; d. he had little to gain from deliberately including the incomplete and/or misleading information in his applications in respect of the Director positions. [the Appellant] would not have been considered suitable for the positions if he had provided a complete and accurate summary of his performance in the CEO role. Consideration [19] The matter under appeal is the decision to make a disciplinary finding of misconduct following the substantiation of three allegations against the Appellant. The Appellant has also made a number of submissions regarding the proposed disciplinary action. A decision on the appropriate disciplinary action has not yet been made by the Respondent and does not form part of this appeal. [20] The background relevant to the disciplinary finding involves the Appellant’s previous role as CEO for Captain Cook College (‘the College’) between March 2013 and February 2017. Following action taken by the Australian Competition and Consumer Commission (‘the ACCC’) on 5 July 2021, the Federal Court found that the Appellant was knowingly concerned in, or a party to, systemic unconscionable conduct taken by the College. The College was engaged in this conduct between 7 September 2015 and 18 December 2015 in contravention of s 21 of the Australian Consumer Law.6 [21] The unconscionable conduct that was the subject of the Federal Court’s decision related to the deliberate removal of, or material changes to, processes that mitigated the dual risks of advisor misconduct and through that, or independently of that, unsuitable consumers being enrolled as students with the objective of increasing revenue and profit. [22] It is common ground that the Appellant was in charge of the College’s business and strategy when the process changes were introduced. The process changes led to significantly increased enrolments and profits from consumers who either should not have been enrolled as students or should not have continued to be enrolled past the census date after which fees were incurred. 6 Australian Competition and Consumer Commission v Productivity Partners Pty Ltd (trading as Captain Cook College) (No 4) [2021] FCA 752 -- 16 of 24 -- 17 [23] The decision maker referred to the following comments made by the ACCC in relation to the contravening conduct – We brought this case because there was clear evidence that Captain Cook College enrolled vulnerable and disadvantaged consumers in courses they were unlikely to ever complete or receive any vocational benefit from despite incurring a large VET FEE-HELP debt. Over 90 per cent of those consumers did not complete any part of their online course, and about 86 per cent of them never even logged into their course. Captain Cook College sought to maximise its profit at the expense of students who were left with a debt, and at the expense of the Commonwealth, which made substantial payments under the VET FEE HELP scheme, which was funded by taxpayers. [24] The Federal Court disqualified the Appellant from managing corporations for three years, ordered the Appellant to pay a penalty of $250,000, and ordered the Appellant to make a contribution towards the costs of the ACCC. [25] The allegations outlined in paragraph [2] relate to the Appellant’s application for three positions within the Program Management Office, Capital and Asset Services, Corporate Services Division, Queensland Health. The first allegation relates to the application for the position of Manager on 12 April 2022, the second allegation relates to the application for the temporary position of Director on 9 September 2022, and the third allegation relates to the application for the permanent position of Director on 5 October 2022. [26] It is not in dispute that the Appellant submitted applications for all three positions comprising of an online application form, a covering letter and a CV outlining his work history and achievements as part of each recruitment process. [27] The decision maker outlined in the disciplinary decision that he was satisfied that the Appellant knew, or ought to have known, that certain information included in the application was incomplete and misleading in the following circumstances - • Your CV contained a summary of your time in the CEO role including the following statements: Delivered turnover and profit growth for Productivity Partners: FY14 Turnover $10.5 million Profit $2.1 million, FY15 Turnover $19.5 million, Profit $4.0 million, FY16 Turnover $42.6 million Profit $17.0 million. ... With assistance from my management team, we expanded our operations, opened seven new campuses, recruited and trained new staff and contractors to develop a coordinated team of over 100 people. • You omitted to disclose anywhere in your CV (or elsewhere in your application for the Manager position or at any point during the relevant recruitment process) the findings made by the Federal Court against the College and you on 2 July 2021 and 5 July 2021 respectively. -- 17 of 24 -- 18 • You therefore represented that your performance in the CEO role was positive and led to the growth of the business and increased turnover and profits in the 2016 financial year without disclosing that: - those figures were, at least in part, attributable to conduct found by the Federal Court to constitute systemic unconscionable conduct in contravention of s 21 of the ACL; and - you were involved in devising and implementing process changes which were found by the Federal Court to constitute systemic unconscionable conduct in contravention of s 21 of the ACL and which caused reputational damage to the College and rendered it liable to potential penalties under the ACL, including pecuniary penalties and costs orders. [28] The decision confirmed that the allegations are not that the financial amounts included in the summary of the Appellant’s performance in the CEO role were inaccurate, rather that the information was incomplete in that it omitted to mention the matters resulting in the Federal Court decision and was therefore misleading. [29] The decision maker did not accept that the Federal Court’s findings were unrelated to the representations made in the Appellant's CV about turnover and profit, with his reasons outlined as follows - In your CV, you made representations about the profit and turnover made by the College in the 2016 financial year. The process changes had a very significant impact on the turnover and profits of the College during the 2016 financial year. In particular, the process changes led to a large increase in the number of enrolments at the College from about 1,300 consumers during the 10 months prior to the implementation of the process changes, to about 7,000 consumers during the approximately four-month period that the process changes were in operation. This led to a large increase in the amount of VET FEE-HELP (VFH) revenue the College was entitled to claim from the Federal Government. Of the $61.57 million in VFH revenue the College claimed during the period 1 November 2014 to 18 December 2015, $54.17 million was in respect of consumers whose enrolment was processed while the process changes were in operation. This is reflected in the figures included in your CV, which suggest the profit made by the College in the 2016 financial year increased by more than 400 percent (from $4 million in 2015 to $17 million in 2016). [30] The Appellant submits that his conduct involved a single inadvertent oversight rather than three deliberate acts of deceit. The Appellant prepared three applications for the three different roles over a significant period of time which provided him three opportunities to consider the material included in his CV. On each occasion the Appellant updated his CV, however, he did not alter the positive description of his performance as CEO of the College despite the adverse Federal Court decision. It was open to the decision maker to determine that a separate act of misconduct had occurred each time the Appellant submitted his application with the misleading details included in his CV. [31] The Appellant submits that the decision placed significant emphasis on a perceived inconsistency between his submission that he held a ‘reasonable assumption’ that all required disclosures had already been made, and the submission that his failure to update his resume was an ‘inadvertent oversight’. -- 18 of 24 -- 19 [32] The Appellant submits that no inconsistency exists and maintains his belief that all required disclosures had already been made to the Queensland Public Service as part of the QLeave process. The Appellant contends that while he did not assume that QLeave would share information with the Respondent regarding his disclosures of the Federal Court matter, he considered that 'all required disclosures to the Queensland Public Service had been made and that the matter had been finalised during [his] time with QLeave.’ The Appellant submits that the information in his CV was accurate based on the circumstances that existed when originally drafted it in late 2016 but was not subsequently updated in light of the Federal Court decision. [33] In the decision, the decision maker determined that the Appellant’s submission that his failure to amend his CV was an ‘inadvertent oversight’ was inconsistent with his submission that he held a ‘reasonable assumption’ that all required disclosures had been made. Such a view was open to the decision maker on the basis that an oversight suggests that the Appellant had simply not considered updating that part of his CV, whilst a reasonable assumption suggests that the Appellant had considered the matter but formed the view that sufficient disclosures had already been made. It is either the case that the Appellant did not update his CV because of an oversight, or alternatively, because he was of the view that it was not necessary. It was reasonable for the decision maker to determine that these explanations were not consistent. [34] The Appellant submits that he was cognisant during the recruitment process that an obligation to disclose the outcome of the Federal Court proceedings may again arise as part of the pre-employment check, but that the Respondent did not request the information regarding his civil law history. The decision maker did not suggest that the Appellant was required to disclose the outcome of the Federal Court proceedings, as outlined in the decision - To be clear, I am not suggesting that you were required to disclose the full details of your civil law history. However, you were required to provide a complete and accurate summary of your relevant work history, including your performance in the CEO role. Further, to the extent that your CV specifically referred to your performance in the CEO role, you were required to provide a complete and honest account of your performance in that role. [35] The decision outlined clearly that the issue was not that the Appellant did not disclose his civil law history, rather it was that he included material in his CV which was incomplete and misleading. The Appellant submitted that he did not generally disclose the outcome of the Federal Court matter to others unless he felt he was obliged to do so. There is a significant difference between not disclosing matters unless obliged, and wilfully relying upon achievements to bolster one’s employment history which are misleading. The profits outlined in the Appellant’s CV were directly impacted by the conduct that was the subject of the Federal Court’s findings. It was open to the decision maker to determine that the Appellant’s failure to mention these findings in the three job applications misled the -- 19 of 24 -- 20 relevant selection panels about his performance in the CEO role and did not constitute a complete and accurate summary of his work history. [36] The Appellant contends that the explanation provided in his response to the show cause notice was credible and truthful and that the decision was unfair. The decision maker did not accept the Appellant’s explanation that his conduct was the result of an ‘inadvertent oversight’. In circumstances where, less than a year prior to the first application, the Appellant had been disqualified from managing corporations for three years, ordered to pay a $250,000 fine and ordered to make a contribution towards the costs of the ACCC, it was more likely than not that that the Federal Court matter was at the forefront of the Appellant’s mind. As contended by the Respondent, this was consistent with the Appellant’s submission that he was cognisant that an obligation to disclose the Federal Court’s decision may arise during the recruitment process. In such circumstances, it was open to the decision maker to determine that it was implausible that the Appellant's failure to amend his CV was due to an inadvertent oversight. [37] The Appellant submits that the decision maker failed to meet the requirements of a ‘fair hearing’ by dismissing his explanation of the circumstances as not credible. The requirements of procedural fairness do not require that a party’s explanation be accepted, only that the party be heard. Procedural fairness requires that the party be given an opportunity to respond to the case against it. I am satisfied that the Appellant was provided with an opportunity to respond to the allegations and that his response was considered as part of the decision making process. The fact that his explanation was not accepted does not render the procedure unfair. I note that in the Appellant’s response to the show cause notice, he stated “Your letter affords me the opportunity to respond as to why disciplinary findings should not be made against me”. I am satisfied that the Appellant was provided procedural fairness in this matter. [38] The Appellant submits that the finding that he had behaved in a dishonest manner is inconsistent with the fact that there has been no evidence of dishonesty in the 7 years in which he has worked for the Queensland Government, and that the Federal Court determined that ‘there was no allegation of dishonesty on the part of Cook’. The decision did not suggest that the Appellant had engaged in a pattern of dishonest conduct whilst employed by the Queensland Government. The only allegations made were related to the Appellant’s provision of misleading information in his three applications. The fact that the Appellant has not been found to have engaged in other misleading conduct does not render the substantiation of these allegations unreasonable. [39] Although the Federal Court matter did not involve allegations of dishonesty on the part of the Appellant, the Court did find that the Appellant had been knowingly concerned in or a party to systemic unconscionable conduct contrary to the Australian Consumer Law. This ‘unconscionable’ conduct contributed to the glowing financial figures the Appellant outlined in his CV. In these circumstances, it was open to the decision maker to determine that the Appellant had deliberately provided misleading information on three separate -- 20 of 24 -- 21 occasions as part of his applications. [40] The Appellant submits that there would be no need for him to mislead a selection panel given the following factors - • the selection reports indicate that he interviews sufficiently well such that it would not be necessary to mislead potential employers; • the current economic condition in Australia including a current skilled labour shortage; • an organisation the size of the Respondent is constantly seeking to attract suitable candidates in accounting, administration and project management; and • the Respondent is not so exclusive or desirable an employer to warrant a person to deliberately seek to mislead selection panels to join or be promoted within the organisation. [41] I find these submissions perplexing given that there were a number of applicants for these roles who participated in the recruitment process and were ultimately not successful. The Respondent had the opportunity to select other applicants following the recruitment process, but determined that the Appellant’s application was the most meritorious. Regardless of the economic conditions, skilled labour shortage, or the desirability or otherwise of the Respondent as an employer, the recruitment to the positions involved a competitive process. Even if it were the case that the there were no other applicants due to labour shortages and a lack of desire to work for the Respondent, anyone who is motivated to apply for a position is presumably going to put forward documentation to maximise the likelihood that they will be successful in the recruitment process. The contention that a candidate will not be motivated to mislead selection panels based on their likelihood of success is not persuasive. [42] Whilst the Appellant may be of the view that he would have been the successful applicant regardless of the information in his CV relating to his position at the College due to his interview performance, this is an entirely speculative submission. The decision maker outlined his consideration of the weight given to the Appellant’s experience in the decision - Having carefully considered the relevant selection report as a whole, I accept that the selection panel placed significant weight on your experience with QLeave as a Senior Finance Office (AO5), A/Training Manager (AO6), A/Manager Client Services (AO7) and Principal Compliance Officer (AO6) when determining your suitability for the Manager position. However, I do not accept that the panel placed no or only ‘minor’ weight on your performance in the CEO role where: • Your experience in the CEO role was directly relevant to the essential requirements of the Manager position. The role description for the Manager position stated that the following were essential requirements of the role: - experience in a leadership role in an environment focused on finance -- 21 of 24 -- 22 and business improvement, preferably within a capital environment; - Extensive experience in leading and managing multidisciplinary teams to achieve project objectives and drive best practice systems and processes. • Your performance in the CEO role therefore would have been a relevant consideration at the shortlisting stage of the recruitment process, which is described in the selection report as follows: ‘Candidate CVs were reviewed against Role Description requirements including key responsibilities and role fit’. • This is confirmed in the summary of the applicants for the Manager position used by the selection panel when shortlisting … which I have considered in light of your submission that the panel placed no or only minor weight on your performance in the CEO role. The summary notes that you had “15 years of Accounting, Administrative and Project Management [experience]”, and “extensive accounting/finance background” and “strong business improvement experience”. • Further, in their report, the selection panel noted that you “demonstration a significant background in finance and leadership positions”. • I consider it implausible that the panel would not have had regard to your experience in the CEO role when reviewing your CV against the essential requirements of the role description for the Manager position and determining that you had a “significant background” in “finance and leadership positions” and “strong business improvement experience”. [43] I am satisfied that the decision maker considered the Appellant’s submission along with the selection reports. It was open to the decision maker to determine on the balance of probabilities that the panel relied on the summary of the Appellant’s performance in the CEO role when determining his suitability for the Manager position. The decision maker similarly considered the essential requirements of the Director position and considered on the balance of probabilities that the panel relied on the summary of the Appellant’s performance in the CEO role when determining his suitability for the Director position. Accordingly, it was reasonable to conclude that the Appellant would not have been considered suitable for these positions had he provided a complete and accurate summary of his performance in the CEO role. [44] The Appellant submits that it is implausible for a person to act in the manner that the decision described in relation to the Manager position, as accepting the letter of offer came with it the significant opportunity cost of foregoing his permanent substantive role at QLeave. The Appellant submits that he accepted the letter of offer in good faith and was confident of ongoing employment in the Queensland Public Service. The Appellant contends that he did not accept the letter of offer with the knowledge that he had deliberately included incomplete and/or misleading statements in order to improve his chances of being selected as doing so would have unnecessarily put his family’s financial security at risk. [45] The Appellant felt that it was necessary to disclose the action taken against him in the Federal Court to QLeave at the time the action was occurring. This was entirely appropriate conduct and reflects his understanding of the seriousness of the action against him. In the Appellant’s email of 13 August 2018, he advises that he may require leave -- 22 of 24 -- 23 from work to give evidence and is mindful of the possibility that news of the ACCC proceedings may enter the public domain. The Appellant states that he did not assume that QLeave had informed the Respondent of the Federal Court decision. In these circumstances, the decision to outline a positive assessment of his CEO history connected to the ‘unconscionable conduct’ was misleading. The view that this could not have been deliberate given that it would have put his family’s financial security at risk is unconvincing. It was entirely open to the Appellant to apply for roles outside of QLeave and pursue his career within the Queensland Public Sector. However, in doing so, the Appellant, like any other applicant, must ensure that his CV does not mislead potential employers. [46] Regarding the Director position, the Appellant submits that the most relevant experience for the selection panel to consider was going to be that which he gained in the Manager role. The Appellant submits that it is implausible that he would deliberately seek to mislead the selection panel regarding a role that he had left almost 8 years previously that would have little if any effect on the panel’s assessment. [47] The Appellant’s assumption that his experience as CEO of the College had little if any effect on the panel’s assessment is not persuasive. I note the Respondent’s submissions that the Appellant would not have been considered suitable for any of the positions had a complete and accurate summary of his performance in the CEO role been provided. It was reasonable for the decision maker to not accept the Appellant’s submission that he would not seek to mislead the selection panel on the basis that the CEO role had little effect on their assessment. [48] On 28 August 2023, the decision maker determined that the allegations against the Appellant outlined at paragraph [2] had been substantiated. The decision maker determined that the Appellant was guilty of misconduct pursuant to s 91(1)(b), that is inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a) of the PS Act. [49] As noted by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman')7 the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct within the definition of misconduct in s 91(5). [50] After considering the observations of Justice Daubney in Mathieu v Higgins,8 Deputy President Merrell outlined in Coleman the following view of the term 'misconduct' in the PS Act: In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of 7 [2020] QIRC 032 8 [2008] QSC 209 -- 23 of 24 -- 24 the privilege and confidence enjoyed by a public service employee.9 [51] The Appellant’s decision to provide a misleading CV to the Respondent on three separate occasions in order to advance his career prospects is, in my view, a deliberate departure from accepted standards. Using entirely positive terms to describe the increased profits obtained partly as a result of conduct found to be unconscionable by the Federal Court is misleading. A CV is taken to be an honest reflection of a person’s employment history, and although there may well be errors, any representations that intentionally mislead a potential employer are outside the bounds of accepted standards. [52] The decision outlined consideration of the Appellant’s human rights and determined that any limitation on the Appellant’s rights to take part in public life, freedom of movement, right to privacy, and the right to reputation is demonstrably justified because it is in the public interest to ensure that public servants do not provide incomplete and/or misleading information in recruitment processes. I accept the Appellant’s submission that he has a right to participate in public life, however, I note that this right must be balanced with the Respondent’s right to ensure that potential employees are hired on the basis of accurate information about their employment history. [53] I note the selection panel notes and referee reports obtained as part of the recruitment processes for the three positions. It appears that the Appellant has been a competent and respected employee within the Queensland Public Service. It is unfortunate that his failure to recognise the importance of transparency in the recruitment process has resulted in ad adverse disciplinary finding. Despite this, the relationship between an employee and employer is one that requires trust and confidence.10 In circumstances where the Respondent has reasonably determined that the Appellant behaved in a manner that was misleading, it was open to determine that the Appellant had engaged in misconduct. [54] I am satisfied that the decision made to substantiate the allegations and make a disciplinary finding of misconduct was fair and reasonable in all of the circumstances. Order [55] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 9 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 10 I note the matter of Charles Tham v Hertz Australia Pty Limited T/A Hertz [2018] FWC 3967 in which the Fair Work Commission considered that the misrepresentation of an employee’s history on a CV was significant enough to justify an employer’s loss of trust and confidence in the employee. -- 24 of 24 --