Cole v State of Queensland (Queensland Health) [2024] QIRC 169

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Cole v State of Queensland (Queensland Health) [2024] QIRC 169 PARTIES: Cole, Sherrie (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2023/119 PROCEEDING: Public Sector Appeal – Disciplinary Decision DELIVERED ON: 16 July 2024 MEMBER: McLennan IC HEARD AT: On the papers ORDERS: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision: 1. That Allegation Three is not substantiated. 2. That the decision to substantiate Allegation One and not substantiate Allegation Two remain undisturbed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where the appellant is employed as a business manager – where conduct allegations substantiated – where the appellant disputes the allegation that she inappropriately arranged for an employee to be paid as 1.0 full time equivalent in circumstances where the employee -- 1 of 28 -- 2 was to work only 0.9 full time equivalent – whether the disciplinary finding decision was fair and reasonable – where the disciplinary finding decision was not fair and reasonable LEGISLATION AND INSTRUMENTS: Industrial Relations Act 2016 (Qld) s 566 Public Sector Act 2022 (Qld) s 131 Directive 05/23 – Discipline cl 5, cl 9 Reasons for Decision Background [1] Ms Sherrie Cole (Appellant) works as a Business Manager (AO8) at the Sunshine Coast Hospital and Health Service (SCHHS). She has been employed by Queensland Health since 2011. [2] Several allegations against Ms Cole were subject of a workplace investigation. That resulted in a show cause process in 2023, in which Ms Cole was required to respond to three allegations. [3] Ms Cole appeals the disciplinary finding decision (the decision)1 made by the Chief Operating Officer, SCHHS2 (the delegate) to 'substantiate' Allegation Three. Though Ms Cole did accept findings to 'substantiate' Allegation One and to 'not substantiate' Allegation Two. [4] Pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) (IR Act), the delegate's decision was stayed until the determination of this appeal or further order of the Commission.3 Appeal principles [5] No jurisdictional objections have been raised, so I will proceed to decide this appeal against a disciplinary decision pursuant to s 131(1)(c) of the Public Sector Act 2022 (Qld) (PS Act). [6] The onus is on Ms Cole to demonstrate that it was not fair and reasonable for the delegate to decide to 'substantiate' Allegation Three, on the balance of probabilities. 1 Correspondence from Ms Shaw to Ms Cole dated 5 June 2023, 8. 2 Ms Joanne Shaw. 3 Directions Order issued 29 June 2023. -- 2 of 28 -- 3 Chronology [7] A brief chronology is set out below: 25 October 2021 Ms Inge King provides a written statement (regarding matters now known as Allegation Three). 19 August 2022 Appellant received notice to attend an interview with an external investigator regarding four allegations.4 7 and 10 October 2022 External investigator requested the Appellant to provide a written response to additional questions.5 21 October 2022 Appellant provided the written responses to the external investigator.6 24 March 2023 Appellant received a 'show cause' letter, requiring her response to three allegations.7 20 April 2023 Appellant provided the 'show cause' response to three allegations.8 5 June 2023 Appellant issued with the delegate's disciplinary findings decision. 9 Allegation Three [8] The delegate found that Allegation Three was 'substantiated'. Ms Cole disputes the allegation that she: … inappropriately arranged for Inga King to be paid as 1.0 full time equivalent (FTE) in circumstances where Ms King was to work only 0.9 FTE. .10 Grounds of appeal [9] Ms Cole's grounds of appeal are that: 1. Information gathered / considered in some instances has no factual basis and is contradictory. 4 Appeal Notice filed 23 June 2023, 4. 5 Ibid. 6 Ibid. 7 Ibid; Respondent's submission filed 20 July 2023, [9]. 8 Appeal Notice filed 23 June 2023, 4. 9 That is, that Allegations 1 and 3 were 'substantiated' and that Allegation 2 was 'not substantiated'; Appeal Notice filed 23 June 2023, 4. 10 Correspondence from Ms Shaw to Ms Cole dated 5 June 2023, 1. -- 3 of 28 -- 4 2. The process has procedural fairness and natural justice flaws. 3. Lack of demonstrated evidence and rationale to support delegate's substantiation of allegation.11 Outcome sought [10] Ms Cole asked the Commission to set aside the delegate's disciplinary finding on Allegation Three and substitute it with a different decision.12 [11] The Respondent asked the Commission to confirm the decision appealed against.13 Consideration [12] I have had regard to the parties' submissions and all filed materials in reaching this decision. I have not included an exhaustive summary of those documents here, though have referred to the key matters in my consideration of each of Ms Cole's grounds of appeal. Appeal Ground Two Appellant's submissions [13] Ms Cole submitted that "There are significant procedural flaws within the process and investigation. This is not reasonable for the Respondent to still determine the process has afforded natural justice due to these procedural flaws which continued throughout the entire process."14 Her complaints with the process are as follows: 1. Ms Cole was not given the chance to respond to "new / additional information provided to the delegate" that was "crucial" to her decision to substantiate Allegation Three. In the Appeal Notice, Ms Cole elaborated (emphasis added): … the delegate advises in the outcome letter dated 5 June 2023 that she sought additional information from the employee after I provided my response to the show cause notice and this information was "crucial" to her determining the finding on this allegation, yet I was not afforded relevant natural justice to respond to this new / additional information provided to the delegate after I provided my response and before she made this finding which I consider is a significant oversight and not consistent with the requirements of the Discipline Directive 05/23.15 2. Ms Cole contested that Allegation Three matters were ever in scope of the investigation. 11 Appellant's submissions filed 6 July 2023. 12 Pursuant to s 562C of the Industrial Relations Act 2016 (Qld); Appellant's submissions filed 6 July 2023, 5. 13 Respondent's submissions filed 20 July 2023, [36]. 14 Appellant's reply submissions filed 27 July 2023, [18]. 15 Appeal Notice filed 23 June 2023, 4. -- 4 of 28 -- 5 Ms Cole submitted that her complaint is not that the Investigation Report did not include 'allegation seven', but rather that "The dispute is in reference to the actual scope of the investigation (reference SCAS 6.I - 6.II.) where my queries are explicit."16 That refers to numerous objections contained in Ms Cole's submissions:17 a. The "Scope and Purpose" section of the Investigation Report does not include the allegation concerning Ms King.18 b. The "Methodology" section of the Investigation Report does not list an interview with Ms King.19 c. The Investigation Report refers to "at least 7 possibly 11 allegations made against me". Ms Cole does not know what all the allegations were about as only three allegations were subject of the show cause process ultimately. However, Ms Cole feared "the existence of these claims / allegations has created a level of bias that has influenced the delegate".20 d. Many pages of the Investigation Report were redacted.21 e. The Investigation Report contained only a "Precis of interview with Simone Ward on 13 September 2022", rather than a copy of the interview transcript. That is a different approach than that taken for other witnesses and may have adversely affected the delegate's decision.22 f. The decision letter contained the phrase "The fact that you did offer Ms King this arrangement", although Ms Cole noted "… this was not substantiated. At no time has any evidence been provided to determine that this a fact."23 g. The decision letter contained the sentence "I do not have enough information before me, save for Ms King's opinion, to determine why you placed Ms King on this arrangement." Ms Cole asserted that means "there is no substantiated evidence, and that the opinion of Ms King has informed her decision."24 h. Although Ms King provided a statement on 25 October 2021, Ms Cole was not invited to until 19 August 2022. By that time, a significant period had then elapsed since the alleged incidents had occurred and Ms Cole was 16 Appellant's reply submissions filed 27 July 2023, [15]. 17 Filed 6 July 2023, [6]-[10]. 18 Appellant's submissions filed 6 July 2023, [6](I). 19 Ibid [6](II). 20 Ibid [6](III). 21 Ibid [6](IV). 22 Ibid [6](V). 23 Ibid [7]. 24 Ibid [8]. -- 5 of 28 -- 6 disadvantaged because she had "no access to files or other evidence that would provide me opportunity to procedural fairness and natural justice."25 i. The external investigator acknowledged the information provided to Ms Cole at her interview a month prior was incomplete. On 10 October 2022, the external investigator wrote to Ms Cole's lawyer in these terms: It's often the case that as the report is collated, it becomes apparent that some of the information may not be fully known to the subject officer. In the interests of natural justice, I want to ensure that Ms Cole is aware of everything that has been said and / or documents provided to me. My apologies that I did not fully cover (at Ms Cole's interview) the information about the appointment of Inga King (Allegation 4).26 Therefore, Ms Cole concluded that: This information should have been made available earlier and as confessed by (the external investigator) the process did not afford me procedural fairness and natural justice within the context of the interview as I was not aware or given specific information in the interview as to what I was really responding to and on what evidence that was being relied on.27 3. Ms Cole asserted the delegate's reference to (the unsubstantiated) Allegation 2 inferred "a level of bias". Ms Cole objected to the delegate's statement that "the perception of allegation two" (that was not substantiated), combined with the two substantiated allegations, could "potentially damage the reputation of the public service."28 Ms Cole represented that statement may contain "a level of bias"29 by the delegate. Respondent's submissions [14] With respect to Ms Cole's specific 'lack of procedural fairness' complaints, the Respondent submitted that: 1. Ms Cole did have a chance to respond to the information provided by Ms King (as particularised in the First Show Cause Notice), so it was not considered to be "new" information. In response to Ms Cole's complaint that the delegate obtained further "crucial" information without giving her the chance to address matters raised, prior to making her decision (as prescribed by the Directive), the Respondent stated that in the: 25 Ibid [9]. 26 Ibid [10]. 27 Ibid [10]. 28 Appellant's reply submissions filed 27 July 2023, [20]. 29 Ibid [20i]. -- 6 of 28 -- 7 … Second Show Cause Notice dated 5 June 2023, Ms Cole refers to having an understanding that Ms King was working as per her flexible work arrangement and in accordance with "policy and legislation." Ms Shaw contacted Ms King to seek her understanding regarding the flexible working arrangement in place, and in summary, Ms King advised that to her knowledge a flexible working arrangement was not signed, that she did not work from home or "rarely" undertook tasks outside of the office. The information provided by Ms King was not considered as 'new information' by Ms Shaw, merely a reiteration of Ms King's previous statements as part of the Investigation Report and as particularised in the First Show Cause Notice.30 2. Allegation Three matters were in scope of the investigation. The Respondent rejected Ms Cole's claim that the Terms of Reference of the Investigation Report did not include specific reference to Allegation Three, instead noting that: The sub-heading of the Investigation Report titled "Allegations", specifically lists all allegations in scope of the investigation, including point seven, "Ms Cole inappropriately arranged for Inga King to be paid as 1.0 full time equivalent (FTE) in circumstances where Ms King was to work only 0.9 FTE"…referred to as Allegation three.31 The Respondent stated that although the various allegations were differently numbered between the Investigation Report and the show cause notices, the "the allegation, and the particulars are the same …"32 Further, the Respondent noted that "Ms Cole provided a fulsome and direct response to Allegation three which evidences her understanding is clear, thereby it is disputed that natural justice provisions afforded to Ms Cole in this regard are impaired."33 3. The delegate's reference to (the unsubstantiated) Allegation 2 did not infer "a level of bias". The Respondent submitted that there is no evidence that the other allegations investigated "created a level of bias" that "influenced" the delegate's disciplinary finding decision.34 The delegate "was not influenced by Allegations that did not form part of the disciplinary process."35 4. Other matters In addition to the responses above, the Respondent drew the Commission's attention to several additional examples of procedural fairness provided to Ms Cole: 30 Respondent's submissions filed 20 July 2023, [31]-[32]. 31 Ibid [15]. 32 Ibid [13]. 33 Ibid [14]. 34 Ibid [20]. 35 Ibid [21]. -- 7 of 28 -- 8 • Her participation in the workplace investigation process.36 • Granting her request for more time to respond to the 'show cause' letter dated 24 March 2023.37 With respect to Ms Cole's other complaints about the external investigation process, the Respondent submitted that: • The investigator's "considerations and findings are not relevant" to the delegate's decision to make disciplinary findings.38 • The delegate "made her own independent decision, based on her independent assessment of all evidence available before her, including … the investigator's report and Ms Cole's responses."39 That was expressly stated by the delegate in the disciplinary finding decision.40 • "The investigator was not involved in the disciplinary process. The investigator's role was to collate all the evidence and material in respect to the matter and provide a report"41 for the delegate to consider. Consideration of Appeal Ground Two 1. Opportunity to respond to the further information provided by Ms King [15] The Public Sector Commission Directive 05/23 – Discipline (the Directive) provides for how discipline processes must be undertaken, importantly the terms "are binding and must be followed".42 The Directive provisions set out "procedural fairness requirements for disciplinary action … noting that requirements in this directive do not reduce the obligations on an entity at common law."43 The Directive defines 'Procedural fairness' as: … a concept used interchangeably with natural justice and is a right recognised and defined by law that involves two key elements – the hearing rule (the parties shall be given adequate notice of the case against them, and a right to respond) and the bias rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator).44 [16] The Directive provisions are highly relevant to the determination of this appeal. 36 Ibid [13]. 37 Ibid [9], [13]. 38 Ibid [18]. 39 Ibid. 40 Ibid [20]. 41 Ibid [19]. 42 Public Sector Commission Directive 05/23 – Discipline, cl 5.5. 43 Ibid cl 5.4(c). 44 Ibid ‘Definitions', 12. -- 8 of 28 -- 9 [17] Clause 9.3 'Show cause process for disciplinary finding' and cl 9.4 'Decision on grounds (disciplinary finding)' are reproduced below: 9.3 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 9.3(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 91 of the Act that applies to the allegation c. when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation d. a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence e. 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 f. if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) 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. 9.4 Decision on grounds (disciplinary finding) a. the 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 9.4(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. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals 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 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation -- 9 of 28 -- 10 f. 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. [18] I have carefully read the 5 June 2023 decision letter.45 In it, the delegate did advise Ms Cole that she had sought further information from Ms King that was "crucial" to the decision. It is also evident in that correspondence that the further information was not put to Ms Cole for her response before the delegate made her decision. That is all clearly stated in the decision letter dated 5 June 2023. [19] I note the Respondent posited that: The information provided by Ms King was not considered as 'new information' by Ms Shaw, merely a reiteration of Ms King's previous statements as part of the Investigation Report and as particularised in the First Show Cause Notice.46 [20] I cannot accept the Respondent's explanation because it entirely reimagines (if not ignores) the actual words of the delegate in the 5 June 2023 decision letter. The delegate makes clear that her further inquiry to Ms King was in response to Ms Cole's "understanding" of the flexible work arrangement (FWA) "to explain the discrepancies in (Ms King's) part-time hours worked against what she was paid (1 FTE)." That is, the delegate asked Ms King the "particular question" because of Ms Cole's show cause response.47 [21] Further, it is apparent that the delegate required more information from Ms King because her decision to substantiate Allegation Three turned on whether a FWA was actually in place or not. As the delegate herself stated "this particular question was crucial" to her disciplinary finding decision. After reproducing Ms King's response to the further inquiry, the delegate concludes immediately thereafter in the correspondence that "I am satisfied on the weight of evidence before me that there was no flexible work arrangement (FWA) in place at this time …"48 Clearly then, Ms King's answer to the delegate's further inquiry is important enough to be inserted into the decision letter because it was "evidence relied on to reach the finding",49 as required by the Directive. [22] The Respondent asserted that Ms King's response was "merely a reiteration of (her) previous statements as part of the Investigation Report and as particularised in the First Show Cause Notice".50 However, if the delegate already had the all the information required to make a decision before her, it does not follow that she took the step of making 45 Appeal Notice filed 23 June 2023, 7. 46 Respondent's submissions filed 20 July 2023, [31]-[32]. 47 Appeal Notice filed 23 June 2023, 7. 48 Ibid. 49 Public Sector Commission Directive 05/23 – Discipline, cl 9.4(c). 50 Respondent's submissions filed 20 July 2023, [31]-[32]. -- 10 of 28 -- 11 the further inquiry of Ms King. The delegate would have simply consulted Ms King's statement and investigation materials. [23] Similarly, I note the delegate has also specifically referred to Ms King's latest response in explaining why her version of events is preferred to Ms Cole's. In this, the delegate makes a particular point that both Ms King's evidence "either from the time of the service raising this with her initially in 2021, or her response to me last week" leads her to reject the notion that Ms King was a "disgruntled employee."51 By those words, the delegate has placed some weight on Ms King's response to the further inquiry made. [24] Finally, the delegate's conclusion clearly provides the reasons why she determined to find Allegation Three to be substantiated. That is, the delegate's decision was made "on the basis that there was no FWA" and because she was "confident in the evidence Ms King provides as to the genesis of this highly unusual employment arrangement."52 Both of those matters specifically referred to by the delegate as the reason for her finding were contained in Ms King's response to the further inquiry.53 [25] I cannot accept the Respondent's diminution of the delegate's failure to place Ms King's response before Ms Cole for her comment, before proceeding with making a disciplinary finding - that is a most serious omission. The delegate most certainly should have provided Ms Cole with a fair opportunity to respond to any further information, especially when it was foundational to her reasons for making the disciplinary finding. In failing to afford Ms Cole a right to respond, 'the hearing rule' has been offended. The show cause process for disciplinary finding requirements of the Directive provides that Ms Cole is entitled to have "a copy of all evidence relevant to the facts considered by the chief executive for each allegation … must be provided to the employee".54 For the reasons I have explained above, Ms King's response to the delegate's further inquiry was clearly such "evidence relevant to the facts".55 In my view, Ms Cole has been wrongly denied her right to know the entirety of the case against her and respond to it, before the decision was made. [26] I find that this serious omission is no mere blemish. It is a fatal flaw that renders the disciplinary finding process 'unfair', with respect to the Allegation Three finding. 2. Scope of the investigation [27] A review of the filed materials demonstrates that: • Correspondence to Ms Cole dated 19 August 2022 requiring her to attend an interview with the external investigator undeniably contains the substance of the 51 Appeal Notice filed 23 June 2023, 7. 52 Ibid 8. 53 Ibid 7. 54 Public Sector Commission Directive 05/23 – Discipline, cl 9.3(d). 55 Ibid. -- 11 of 28 -- 12 matter now known as "Allegation Three". The key points of the allegations are the same - that is, that Ms Cole caused the "inappropriate arrangement" to be struck for "Inga King to be paid as 1.0 full time equivalent (FTE) in circumstances where Ms King was to work only 0.9 FTE". • The slight difference in wording of the allegation investigated and that put to Ms Cole in the show cause process does not represent inherent unfairness. [28] I have also carefully reviewed the Investigation Report dated November 2022. Maintaining the same numbering as used in the Appellant's submissions above at [13] for ease of reference, I make the following observations about the Investigation Report, in response to Ms Cole's expressed concerns. a. The "Scope and Purpose" section of the Investigation Report did not include the allegation concerning Ms King [29] The "Scope and Purpose" section of the Investigation Report does not include the allegation concerning Ms King; however, the redacted text appears to be a list of areas of concern about Ms Cole's conduct (as denoted by the ";") and ends with a reference to "inappropriate conduct in relation to the recruitment and/or approval of appointments of family and friends". [30] Given the contested allegation here was that Ms Cole "inappropriately arranged" for Ms King to be paid for more hours than she worked, my view is that the particular allegation would be fairly in scope.56 b. The "Methodology" section of the Investigation Report does not list an interview with Ms King [31] The "Methodology" section of the Investigation Report does not list an interview with Ms King. Given that Allegation Seven (now known as Allegation Three) specifically names Ms King, I agree with the Appellant's position that it would be unusual if she was not interviewed as part of this process. [32] However, I do note that Ms King had already provided a statement on 25 October 2021 (a time much earlier than the various dates of interviews conducted by the external investigator, occurring in August and September 2022). It is also the case that points three and six of the "Methodology" section were redacted. It may be that Ms King's prior statement was an included material. I cannot know. [33] Notwithstanding that though, I see that Ms Cole was provided with a copy of Ms King's statement as an attachment to the first show cause notice dated 24 March 2023. As Ms Cole was provided with Ms King's statement before being asked to formally respond 56 Appellant's submissions filed 6 July 2023, Attachment 6, 4. -- 12 of 28 -- 13 to the allegation as part of the disciplinary process, my view is that she was afforded natural justice with respect to that element of the process. c. The Investigation Report refers to "at least 7 possibly 11 allegations made against me" [34] Ms Cole noted that the Investigation Report refers to "at least 7 possibly 11 allegations made against me". Ms Cole stated that she does not know what all the allegations were about as only three allegations were subject of the show cause process ultimately. However, Ms Cole feared "the existence of these claims / allegations has created a level of bias that has influenced the delegate".57 [35] No matter the number of allegations against Ms Cole that were subject of the investigation, the vast majority fell away during that initial phase. The delegate ultimately determined to proceed with only three allegations in a show cause process, and of those determined one to be "unsubstantiated". That indicates to me that the delegate was not motivated to make a finding against Ms Cole, simply on the basis that there had been many allegations to begin with. In fact, of the two remaining "substantiated" allegations, Ms Cole does not dispute the finding for one of those. On this point, I agree with the Respondent's submission that that there is no evidence that the other allegations investigated "created a level of bias" that "influenced" the delegate's disciplinary finding decision.58 For those reasons, I do not believe that Ms Cole's claim here is born out. d. Many pages of the Investigation Report were redacted [36] Ms Cole observed that many pages of the Investigation Report were redacted.59 Ms Cole noted the delegate's comment in the first show cause notice read (emphasis added) "Please note that the investigation report and attachment document have been redacted for reasons relating to privacy and confidentiality. I confirm that the redacted parts are not relevant to the allegations against you."60 [37] Perhaps understandably given there were "at least 30+ pages of information in the (Investigation Report) that is completely redacted", Ms Cole submitted that she found it "particularly hard to accept" that all the redacted materials were "not relevant to the allegations and that information contained in those pages has not been considered in this process."61 [38] The Respondent's submissions have not addressed this point directly, though did state that "(The delegate) made her own independent decision, based on her independent 57 Ibid [6](III). 58 Respondent's submissions filed 20 July 2023, [20]. 59 Appellant's submissions filed 6 July 2023, [6](IV). 60 Ibid. 61 Ibid. -- 13 of 28 -- 14 assessment of all evidence before her, including but not limited to that contained within the investigator's report and Ms Cole's responses."62 On the face of it, that submission would seem to confirm Ms Cole's concerns that the redacted material had been considered by the delegate in her decision. [39] In light of the delegate's statement in the first show cause notice, I believe it is most likely that the large amount of redacted material in the Investigation Report concerned the numerous allegations against Ms Cole that were not taken any further than that initial investigation phase. The other possibility is that the redacted material concerned matters relating to a 'Subject Officer' other than Ms Cole, noting the Contents page of the Investigation Report reads that there were "Subject Officers" (plural) and that the relevant section at page 10 of the report first briefly describes the employment history of "Ms Cole", before listing a further three blank sections underneath as "Redacted". It appears then that there may have been another three subject officers that the investigation concerned, in addition to Ms Cole. Quite properly, those matters would not concern Ms Cole and would have been redacted for "privacy and confidentiality" reasons. Taken in that context, the delegate's reassurances to Ms Cole make sense - the redacted information was not relevant to the three allegations against Ms Cole, that went on to be further considered as part of the show cause process. [40] While all that may have been better explained by the Respondent, this point does not indicate any procedural unfairness to Ms Cole. e. The Investigation Report contained only a "Precis of interview with Simone Ward on 13 September 2022", rather than a copy of the interview transcript [41] Ms Cole was concerned that the Investigation Report contained only a "Precis of interview with Simone Ward on 13 September 2022", rather than a copy of the interview transcript. Ms Cole asserted that was a different approach than that taken for other witnesses and that may have adversely affected the delegate's decision.63 [42] I see that the various interviews conducted in the course of the workplace investigation are listed at page 11 of the Investigation Report, under the heading "Methodology". I note the list of seven witnesses who had been interviewed. Relevantly, only a "precis of interview" for three of those witnesses were attached to the report, while a full "transcript of interview" was attached for the remaining four witnesses. That means roughly half the witness interviews were attached as 'transcripts' and the rest as 'precis only'. It is unhelpful that the difference in approach between witnesses has not been explained; however, Ms Ward was not the only witness whose account was reported as a 'precis' - the accounts of two other witnesses were treated the same way. For that reason, I do not 62 Respondent's submissions filed 20 July 2023, [18]. 63 Appellant's submissions filed 6 July 2023, [6](V). -- 14 of 28 -- 15 share Ms Cole's concern that the inclusion of a precis only of Ms Ward's evidence is inherently unfair. f. The decision letter contained the phrase "The fact that you did offer Ms King this arrangement" [43] Ms Cole has objected to the fact that the decision letter contained the phrase "The fact that you did offer Ms King this arrangement", as she contended "… this was not substantiated. At no time has any evidence been provided to determine that this a fact."64 [44] The delegate determined that it was Ms Cole who did offer the problematic employment arrangement to Ms King, on the balance of probabilities, though qualified that was "more than likely at the behest of Mr Docherty". [45] The delegate referred to her 'finding' on this matter as "fact" in her correspondence to Ms Cole. [46] While Ms Cole has argued that "no evidence" has been "provided to determine that this is a fact", the delegate explained that she arrived at that conclusion "on the preferred evidence" of Ms King and Ms Ward. On the "preferred evidence" of those two staff members, the delegate found that Ms Cole was the person who made the 'inappropriate arrangement" for Ms King. [47] For that reason, the delegate went on to "substantiate" Allegation Three. [48] In my view, the delegate's conflation of the word 'fact' with 'finding' is perhaps unfortunate but does not represent any specific procedural unfairness to Ms Cole. [49] The second part of Ms Cole's complaint involves whether or not it was open to the delegate to find Allegation Three to be substantiated. I will address this point in my consideration of Appeal Grounds One and Three below at [70]. g. The decision letter contained the sentence "I do not have enough information before me, save for Ms King's opinion, to determine why you placed Ms King on this arrangement." [50] The decision letter contained the sentence "I do not have enough information before me, save for Ms King's opinion, to determine why you placed Ms King on this arrangement." Ms Cole asserted that meant "there is no substantiated evidence, and that the opinion of Ms King has informed her decision."65 [51] Reading the delegate's statement in the context of the preceding sentences, the delegate apparently decided that Ms Cole was the person who offered Ms King "this arrangement" 64 Ibid [7]. 65 Ibid [8]. -- 15 of 28 -- 16 ("on the preferred evidence of Ms King and Ms Ward before me"). While the delegate stated that she did not have enough information to determine 'why' Ms Cole did so, she had nonetheless earlier written "I am further satisfied that this was more than likely at the behest of Mr Docherty who is generally described as 'intimidating'." [52] A few sentences later, the delegate declared Allegation Three to be substantiated because "there was no FWA" and "I am confident in the evidence Ms King provides as to the genesis of this highly unusual employment arrangement". The delegate's decision to substantiate Allegation Three appeared then to be based on two things: her finding of fact that there was no FWA; and the opinion of Ms King as to the origin of the arrangement (that is, Ms King's response to the delegate's late inquiry, as reproduced in the decision letter). [53] The Directive requires disciplinary finding decisions to be clearly explained, "including the evidence relied on to reach the finding".66 The delegate does not clearly state whether her decision relied upon the evidence of both Ms King and Ms Ward - or just Ms King. The contradiction contained in the three paragraphs preceding the delegate's finding does not assist the reader's understanding of her reasons. h. Although Ms King provided a statement on 25 October 2021, Ms Cole was not invited to until 19 August 2022 [54] Although Ms King provided a statement on 25 October 2021, Ms Cole was not invited to until 19 August 2022. By that time, a significant period had then elapsed since the alleged incidents had occurred and Ms Cole was disadvantaged because she had "no access to files or other evidence that would provide me opportunity to procedural fairness and natural justice."67 [55] I accept that a lengthy delay in bringing an allegation to Ms Cole for her response does place her at some disadvantage, with respect to both her ability to recall events and locate relevant documentary evidence. However, it is not unusual for these types of investigations to take some time, particularly given it concerned "at least 7 possibly 11 allegations", as was earlier noted. i. The external investigator acknowledged the information provided to Ms Cole at her interview a month prior was incomplete 66 Public Sector Commission Directive 05/23 – Discipline, cl 9.4(c). 67 Appellant's submissions filed 6 July 2023, [9]. -- 16 of 28 -- 17 [56] Ms Cole noted that the external investigator acknowledged that incomplete information was provided to at the interview a month earlier. On 10 October 2022, the external investigator wrote to Ms Cole's lawyer in these terms:68 It's often the case that as the report is collated, it becomes apparent that some of the information may not be fully known to the subject officer. In the interests of natural justice, I want to ensure that Ms Cole is aware of everything that has been said and / or documents provided to me. My apologies that I did not fully cover (at Ms Cole's interview) the information about the appointment of Inga King (Allegation 4).69 [57] Therefore, Ms Cole concluded that: This information should have been made available earlier and as confessed by (the external investigator) the process did not afford me procedural fairness and natural justice within the context of the interview as I was not aware or given specific information in the interview as to what I was really responding to and on what evidence that was being relied on.70 [58] The Respondent submitted that "… the investigator's considerations and findings are not relevant to (the delegate's) decision to make disciplinary findings. (The delegate) made her own independent decision based on her independent assessment of all evidence available before her, including but not limited to that contained within the investigator's report and Ms Cole's responses."71 That submission acknowledges the delegate's disciplinary finding decision is based on her assessment of all evidence available including the investigator's report, that contains the transcript of interview conducted with Ms Cole on 14 September 2022. Ms Cole was not aware "of everything that has been said and / or documents provided to (the external investigator)" at the time her interview took place, and the external investigator "did not fully cover (at Ms Cole's interview) the information about the appointment of Inga King (Allegation 4)." I appreciate Ms Cole's concern that the delegate considered the transcript of her interview (amongst other things) in making the disciplinary finding, yet Ms Cole was at a distinct disadvantage because the external investigator had not fully covered "the information about the appointment of Inga King". [59] When the external investigator wrote to Ms Cole on 19 August 2022 advising that a workplace interview would be held to investigate allegations against her, the correspondence stated that the service provider: … conducts their investigations following the principles of natural justice and procedural fairness. In effect, this means that employees who are the subject of workplace allegations are entitled to: • The presumption of innocence and 68 The Respondent's submissions refer to the email from the external investigator as an “alleged statement”. The email was fact, not “alleged”. It was an attachment to the Appellant's submissions filed 6 July 2023 (before the Respondent's submissions were filed on 20 July 2023). The Respondent had the email before them at time of writing. 69 Appellant's submissions filed 6 July 2023, [10]. 70 Ibid [10]. 71 Respondent's submissions filed 20 July 2023, [18]. -- 17 of 28 -- 18 • The opportunity to respond to allegations and any related evidence in an interview.72 [60] I do note that the external investigator's email dated 10 October 2022 went on to set out "The following information / documents relate to Ms King's appointment" and then offered Ms Cole an opportunity to provide any further response to it. The date of the email was a few weeks prior to the Investigation Report release, as the latter was dated November 2022. I accept that it was remiss of the external investigator not to have provided this information to Ms Cole earlier (as she appropriately acknowledged in her 10 October 2022 email). Though Ms Cole did have a chance to mitigate the disadvantage to her by making a response to that belated information, if she wished to do so. [61] Ultimately though, I concur with Ms Cole's position that procedural fairness to her within the context of the interview was infected because of the external investigator's omission. 3. Reference to Allegation Two [62] Ms Cole said the delegate's reference to the "perception" of the "unsubstantiated" Allegation 2 may contain a "a level of bias."73 That was denied by the Respondent. [63] Ms Cole has appealed only one of the three disciplinary finding decisions made by the delegate. That would indicate to me that the delegate has not acted with "a level of bias". [64] However, the more cautious approach for a delegate to take when explaining why a particular disciplinary action is proposed would be to limit the reasoning to the allegations found to be substantiated. Only the substantiated allegations give rise to any proposed disciplinary action. Unsubstantiated allegations are irrelevant at that point. 4. Other matters [65] The Respondent added that Ms Cole had been provided with procedural fairness because she had participated in the workplace investigation process74 and was granted more time to respond to the 'show cause' letter dated 24 March 2023.75 That is both appropriate and the usual course in such matters. [66] That submission is not particularly persuasive to the Respondent's argument that Ms Cole has been afforded procedural fairness. It certainly does not overcome the procedural fairness problems I have earlier identified in my consideration of Appeal Ground Two. 72 Appellant's submissions filed 6 July 2023, Attachment 1. 73 Appellant's reply submissions filed 27 July 2023, [20i]. 74 Respondent's submissions filed 20 July 2023, [13]. 75 Ibid [9], [13]. -- 18 of 28 -- 19 Appeal Ground Three and Appeal Ground One Appellant's submissions [67] Ms Cole's position is that the delegate erred in finding Allegation Three to be 'substantiated'. In the Appeal Notice, Ms Cole elaborated (emphasis added): … there is simply no evidence to support my alleged "wrong doing" in this allegation. The allegation states that I "inappropriately arranged" for an employee to be paid more hours than she was contracted to work. It is not clear what "inappropriately arranged" means, what the relevant and specific date range was for this alleged action, the basis of evidence relied on to support the substantiation of this allegation aside from a statement from the employee herself which I would consider hearsay.76 Respondent's submissions [68] The Respondent submitted that (emphasis added): Ms Cole does not dispute the employment engagement of Ms King subject of Allegation three existed. Rather she acknowledges the arrangement was 'unconventional' and attempts to dispute that she had knowledge that Ms King would be remunerated for hours she did not work. Ms Shaw does not have to accept this disputation, and based on the available evidence before her, determined it was more likely than not that Ms Cole was responsible for the arrangement for Ms King to be remunerated for more hours than she worked.77 … Compelling evidence was provided to the investigator by Ms King and Ms Ward which confirmed Ms Cole had more likely arranged for Ms King to work part-time and be paid full-time. Ms Shaw considered that evidence. Notably: "In December 2018 I was offered a full-time AO3 position by Sherrie Cole, former Business Service Manager of Surgical Services Group (SSG). I discussed with Sherrie the need for me to work part- time from 9 am each day to accommodate my daughter starting Prep at school in January 2019. At this time, I also advised Sherrie that I had been offered an AO4 role within The Project Development Unit which I was considering. Sherrie verbally promised that the Director Support Officer position I was being offered was going to be JEMS to an AO4 level soon and in the meantime, she would arrange for me to be paid full time hours while working part time to make up the pay difference (ie AO3 FT to AO4 PT). I confirm that I accepted this offer with the understanding that an AO4 movement form would be back dated to my commencement date once the JEMS process was finalised." In the context of the abovementioned statement by Ms King, Ms Shaw determined that it was more likely than not that this conversation occurred and the likely premise on which Ms King accepted Ms Cole's AO3 role and work arrangement. It was open for Ms Shaw to rely on the information available to her, which includes statements made by Ms King, consistent with the statement of Ms Ward. Ms Shaw determined the evidence provided by Ms King was credible and compelling, and considered the information provided by Ms Ward who was consistent in her description that Ms Cole had arranged for Ms King to be engaged in an arrangement that was unusual.78 [69] In the decision letter, the delegate noted Ms Cole had placed "significant weight upon the fact that your understanding was Ms King was under a Flexible Work arrangement to explain the discrepancies in her part time hours worked against what she was paid (1 76 Appeal Notice filed 23 June 2023, 4. 77 Respondent's submissions filed 20 July 2023, [25]. 78 Ibid [28]-[29]. -- 19 of 28 -- 20 FTE)", explained that question was "crucial" to her disciplinary finding decision, and reproduced Ms King's response to the delegate's further inquiry as: to my knowledge a flexible work arrangement was not signed for the initial period of time, nor did I complete work at home (or rarely) undertook tasks outside the office. I accepted the job offer with the promise from Sherrie that the position was going to be JEMs re-evaluated to an AO4 level – additional hours would not be required as a P/T AO4 wage was approximately equivalent to a F/T AO3 wage.79 Consideration of Appeal Grounds One and Three 1. Definition of "inappropriately arranged" [70] Ms Cole submitted that it is not clear what "inappropriately arranged" means. That wording is not taken from the Directive or other legislation. The ordinary meaning of the words is applied. [71] The word "inappropriately" means "improperly" or "wrongly". "Arranged" may be defined as "decided" or "approved". [72] It is clear that the allegation was that Ms Cole had 'improperly or wrongly' 'decided or approved' the arrangement for Ms King to be paid full time, but only work 0.9 FTE. [73] I do not accept there could be any confusion with respect to the meaning of the allegation. 2. The relevant and specific date range for this alleged action 0.9 FTE or 0.8 FTE [74] Ms Cole observed that the allegation contained in both the initial show cause notice dated 24 March 2023 and the decision letter dated 5 June 2023 stated "… Ms King was to work only 0.9 FTE." [75] Ms Cole submitted that she "at no time appointed Ms King at 0.9 FTE, I have not been provided with evidence that demonstrates this and further there are no specific dates provided in the allegation on when this is alleged to have occurred as the evidence relied on is 2 temporary EMP's that I endorsed appointing Ms King temporarily at 0.8 FTE."80 [76] In my view, that is rather splitting hairs. Whether it was 0.8 FTE or 0.9 FTE, the substance of the allegation put to Ms Cole for her response ought to have been understood. 79 Appeal Notice filed 23 June 2023, 7. 80 Appellant's submissions filed 6 July 2023, [2]. -- 20 of 28 -- 21 [77] The muddle in Ms King's working hours was core to the allegation raised in the first place. I would also observe that the decision to present the allegation as "0.9 FTE" rather "0.8 FTE" does not disadvantage Ms Cole. Time period [78] I note that the email from the external investigator dated 10 October 2022 attached the Employee Movement Form "signed on 10 December 2018 by Simonne Ward as Ms King's supervisor and Ms Cole (on 11 December 2018) as the delegate, indicated that Ms King was appointed as a AO3 Administration Officer Director Support Surgical…The number of part time hours was recorded as 60.8 hours per fortnight, commencing 7 January 2019 …" The external investigator provided a similar explanation in her 10 October 2022 email regarding the extension of Ms King's appointment in a further EMF from 1 July 2019 to 29 December 2019. Again, the second EMF was attached. It was also noted that Ms King became a permanent full-time employee on 15 July 2019. [79] Similar to my assessment above, the relevant and specific time range for the allegation were apparent. The arrangement commenced on 7 January 2019 and ceased upon Ms King's commencement as a permanent full-time employee in July 2019. The relevant EMFs were provided by the external investigator by email on 10 December 2018. 3. Evidence to substantiate Allegation Three [80] Relevant extracts from the delegate's decision letter include (emphasis added): I am though, also satisfied (Ms King) was promised 'a pot of gold' in the form of an AO4 position through a highly unusual and highly inappropriate employment arrangement which, I am confident on the preferred evidence of Ms King and Ms Ward before me, that you offered her. I am further satisfied that this was more than likely at the behest of Mr Docherty, who is generally described as 'intimidating'. However, you did not have to accept this direction and my expectation would have been for you to raise those through appropriate channels. The fact that you did offer Ms King this arrangement… … …have determined that, on the basis that there was no FWA, and I am confident in the evidence Ms King provides as to the genesis of this highly unusual employment arrangement, Allegation Three is substantiated on the balance of probabilities.81 [81] As the delegate has preferred the evidence of Ms King and Ms Ward, I have examined below what they actually said about 'who' made the inappropriate arrangement' for Ms King: 81 Appeal Notice filed 23 June 2023, 7-8. -- 21 of 28 -- 22 What Ms King said [82] In her 25 October 2021 statement, Ms King said that: Ms Cole offered her a full-time AO3 position; she needed to work part time; she had been offered an AO4 role and was considering doing that; and further that Ms Cole "verbally promised that the … position I was being offered was going to be JEMS to an AO4 level soon and in the meantime she would arrange for me to be paid full-time hours while working part time to make up the pay difference (i.e. AO3 FT to AO4 PT)." Ms King stated that "… this agreement was offered by Sherrie Cole through a series of phone conversations. Sherrie passed information of this verbal offer to Simonne Ward (Administration coordinator SSG) who created my movement form … Sherrie and Simonne signed all movement forms for the period in question. I am also aware that Brendan Docherty, former General Manager SSG, was aware of and in agreeance with Sherrie's offer."82 [83] In response to the further inquiry from the delegate, reproduced in the decision letter dated 5 June 2023, Ms King stated "nor did I complete work at home (or rarely) undertook tasks outside the office. I accepted the job offer with the promise from Sherrie that…additional hours would not be required …"83 [84] In summary, Ms King said she accepted Ms Cole's offer for her to work part time hours for full time pay. Ms King stated that she "rarely" undertook tasks outside the office. What Ms Ward said [85] In a statement on 17 October 2021, Ms Ward was asked "who initiated and approved the arrangement". Ms Ward answered "I was advised the GM had initiated the arrangement, with the BSM relaying the already agreed arrangement to myself. This made some sense to me as the BSM had never suggested anything like this to me previously. I was presented with the already agreed upon contract details and asked to prepare the paper contract accordingly by my BSM." Earlier in that statement, Ms Ward said she was presented with the arrangement that had "already been approved by the GM and BSM". Ms Ward said that when she queried it with Ms Cole because it was an "unusual arrangement, that I had not previously come across", Ms Cole told her that "the GM had directed that this be the arrangement to be put in place and that it was okay as he had previously operated in this manner … I feel it necessary to highlight at this point that the GM making this decision, I found to be very intimidating with very strong views and opinions and was a manager I certainly did not feel at all comfortable with questioning his experience and decision making." Ms Ward also recalled "being told that this arrangement would allow Ms King to work from home at times ie typing minutes etc."84 82 Appellant's submissions filed 6 July 2023, Attachment 7. 83 Appeal Notice filed 23 June 2023, 7. 84 Appellant's submissions filed 6 July 2023, Attachment 9. -- 22 of 28 -- 23 [86] Ms Ward's interview with the external investigator occurred sometime later, on 13 September 2022. The precis of that interview included Ms Ward's opinion that "The arrangement appeared to be more Mr Docherty's doing rather than Ms Cole who was possibly intimidated by him" and that "In most meetings Mr Docherty did most of the talking and Ms Cole took a 'back seat'." It was noted that Ms Ward learnt that Ms King would work part time but be paid full time hours sometime after her appointment, and when Ms Ward "voiced this concern to someone she was told Mr Docherty needed more of a personal assistant. She was aware Ms King undertook tasks for him such as picking up his drycleaning and doing his shopping on her way to home from work. She also typed minutes and completed other tasks assigned to her by Mr Docherty out of work hours and this was the justification for her being paid on a full-time basis."85 [87] In summary, Ms Ward understood that Mr Docherty had initiated the arrangement, with Ms Cole relaying the already agreed arrangement to her. Ms Ward added that "made some sense to me as (Ms Cole) had never suggested anything like this to me previously." [88] Then approximately a year later, Ms Ward confirmed that "The arrangement appeared to be more Mr Docherty's doing rather than Ms Cole who was possibly intimidated by him". [89] With respect to whether or not Ms King performed duties outside the office, Ms Ward said "I recollect Ms King telling me that she does things like picking up shoelaces from the supermarket for his work shoes and she picks up his drycleaning of his work clothes. This is not something I had come across before but again, being directed by the GM through my BSM, I did not feel that I was able to question this further."86 [90] A year later, Ms Ward confirmed her earlier statement that Ms King undertook tasks for Mr Docherty "such as picking up his drycleaning and doing his shopping on her way to home from work. She also typed minutes and completed other tasks assigned to her … out of work hours." What Ms Cole said [91] In a show cause response dated 20 April 2023, Ms Cole stated that "Following this conversation with Ms King, I provided her resume, the verbal reference I received and an overall summary of my thoughts of Ms King to I/GM. It was also during this time I provided him the additional context in terms of Ms King's personal situation. The I/GM was truly empathetic to this and offered for (Ms King) to work in the office school hours and work flexibly from home facilitating administrative functions he designated to her such as meeting minutes …"87 85 Ibid Attachment 10. 86 Appellant's submissions filed 6 July 2023, Attachment 9. 87 Ibid Attachment 8. -- 23 of 28 -- 24 [92] In summary, Ms Cole stated that Mr Docherty "offered for (Ms King) to work in the office school hours and work flexibly from home" typing meeting minutes and the like, as he was "truly empathetic" to "the additional context in terms of Ms King's personal situation." What the external investigator recorded [93] In the 10 October 2022 email from the external investigator, she wrote "It would be helpful if Ms Cole could confirm whether (she) asked Ms Ward to make arrangements to pay Ms King the equivalent of full-time, while knowing that Ms King would not be attending at the workplace full time. As noted above, Ms Ward maintained that it was Ms Cole who asked her to make those arrangements, at Mr Docherty's request."88 [94] The Investigation report recounted that Ms Cole had provided that "There was an agreement between Ms King and Mr Docherty that she would have a flexible working arrangement, whereby if there was work that had to be done outside of the workplace, Ms King would do that in her own time at home …" The external investigator noted Ms Cole's response to the question of "whether she had any involvement in making the arrangements for Ms King" was: "No. The only thing that I had is that she was pulled across and we, I put her on, well, I didn't put her on, I signed as delegate as a .8 contract, 60.8 hours."89 The interview with Ms Cole occurred on 14 September 2022. [95] In the report dated November 2022, the external investigator concluded that "Essentially, Ms King was working part time hours but being paid full time hours … Ms Cole was aware of the arrangement, facilitated the paperwork and did not question the ethics or escalate it to higher management. While it was apparent that the arrangement was at the request of Mr Docherty …" Further, the external investigator noted that there was " … no indication that Ms Cole was aware of the details ie where Ms King was undertaking the additional paid hours or when. In the overall circumstances, it could reasonably be considered that the arrangement was inappropriate and arranged by Ms Cole, albeit at the request of Mr Docherty. If the decision maker accepts the above evidence and reasoning then, on the balance of probabilities … Ms Cole inappropriately arranged for (Ms King) to be paid as 1.0 full time equivalent (FTE) in circumstances where Ms King was to work only 0.9 FTE, is substantiated."90 [96] In summary, the external investigator recorded that: • Ms Ward said Ms Cole asked her to make Ms King's employment arrangements, at Mr Docherty's request. 88 Ibid Attachment 12. 89 Ibid Attachment 6, 52. 90 Appellant's submissions filed 6 July 2023, Attachment 6, 56-57. -- 24 of 28 -- 25 • Ms Cole said Ms King and Mr Docherty had an agreement that "if there was work that had to be done outside of the workplace, Ms King would do that in her own time at home …"; though Ms Cole had signed the 0.8 FTE temporary contract as delegate. • In the Investigation Report, the external investigator concluded that while Ms Cole was aware of the working hours arrangement, it was done "at the request of Mr Docherty". • With respect to Ms King's working hours, there was "… no indication that Ms Cole was aware of the details ie where Ms King was undertaking the additional paid hours or when." • "… the arrangement was inappropriate and arranged by Ms Cole, albeit at the request of Mr Docherty." [97] I do not believe there was sufficient evidence for the delegate to substantiate Allegation Three, on the balance of probabilities. [98] In arriving at this conclusion, I have considered the various aspects to this particular allegation: • whether Ms King's employment arrangement was inappropriate; • who made the arrangement with Ms King; and • whether Ms King worked only 0.9 FTE. Was Ms King's employment arrangement "inappropriate"? [99] While the employment arrangement was held out to be a FWA, there was no record of one being formally completed and presented. At best, the arrangement was loose. [100] As any employment arrangement struck was not done in accordance with the relevance provisions, it can therefore be accepted to be "inappropriate" in those terms. Who made the arrangement with Ms King? [101] The delegate stated that "… I am confident on the preferred evidence of Ms King and Ms Ward before me, that you offered …" Ms King the "inappropriate employment arrangement". [102] The Respondent submitted that "Compelling evidence was provided to the investigator by Ms King and Ms Ward which confirmed Ms Cole had more likely arranged for Ms King to work part-time and be paid full-time". The Respondent added that "It was open -- 25 of 28 -- 26 for (the delegate) to rely on the information available to her, which includes statements made by Ms King, consistent with the statement of Ms Ward." [103] I have considered the statements of Ms Cole, Ms King and Ms Ward above. I do not agree with the delegate's assessment that Ms King and Ms Ward have given consistent accounts about 'who' made the arrangement with Ms King. [104] As I have summarised the evidence of the three witnesses above, Ms King alone asserted that the arrangement was offered to her by Ms Cole. [105] A different position was taken by Ms Ward and Ms Cole, who both said that Mr Docherty had initiated the arrangement for Ms King. [106] The consistent accounts about 'who' initiated the arrangement then, was that it was Mr Docherty. However, I am acutely aware that the Investigation Report did not contain or refer to any interview with Mr Docherty. It may well be the case that Mr Docherty has not had the opportunity to give his account of the matter. [107] In light of that, the conclusion I draw is that Ms King alone said that Ms Cole initiated the arrangement. Did Ms King work only 0.9 FTE? [108] Ms Ward gave a statement, and then was interviewed a year later. She maintained her position throughout that Ms King performed duties ancillary to, or directly related to, her work outside the office. Ms Ward recollected Ms King telling her "… she does things like picking up shoelaces from the supermarket for (Mr Docherty's) work shoes and she picks up his drycleaning of his work clothes."91 Ms Ward also said that Ms King typed minutes and completed other tasks assigned to her out of work hours. [109] The external investigator's email92 provided a summary of Ms Ward's response to (a subsequent I/GM)93 on 17 October 2021, including that Ms Ward was "made to believe that Ms King was actually performing 7.6 hours of work each day - 6.5 hours in the workplace and the remainder on work tasks delegated to her by the GM outside of the workplace."94 [110] Ms Cole stated that Mr Docherty "offered for (Ms King) to work in the office school hours and work flexibly from home" typing meeting minutes and the like, as he was "truly empathetic" to "the additional context in terms of Ms King's personal situation." 91 Appellant's submissions filed 6 July 2023, Attachment 9. 92 dated 10 October 2022. 93 Cang Dang. 94 Appellant's submissions filed 6 July 2023, Attachment 12. -- 26 of 28 -- 27 There is no necessity for me to address Ms King's particular circumstances here that gave rise to such empathy, though those were addressed in the provided materials. [111] Ms Cole submitted that "My involvement in Ms King's employment was that of temporary contracts where I endorsed for her to work 0.8 FTE only … It was never raised to me that Ms King was not working hours that she was being remunerated for. As I was not her direct line manager, nor assigning her tasks, nor monitoring or managing her workloads, I would not have any reason to query this. I did not see nor have any oversight of the hours that Ms King requested to be paid for over and above her contracted hours I endorsed at 0.8 FTE."95 [112] With respect to Ms King's working hours, the external investigator also considered that there was "… no indication that Ms Cole was aware of the details ie where Ms King was undertaking the additional paid hours or when." [113] Ms King stated that she "rarely" undertook tasks outside the office (so occasionally did so). [114] With respect to the reporting structure in the relevant period, it was submitted that "Ms King directly reported to Ms Simonne Ward, Administrator Coordinator, who reported to Ms Cole, Business Manager, SCC."96 Ms Cole in turn reported to the Interim General Manager, Mr Docherty, at the relevant time. Notwithstanding that though, the material before me indicates that Ms King worked to Mr Docherty, and the arrangement they were both content with was undisturbed. Other matters [115] The Respondent submitted that "Compelling evidence was provided to the investigator by Ms King and Ms Ward which confirmed Ms Cole had more likely arranged for Ms King to work part-time and be paid full-time. Ms Shaw considered that evidence. Notably …" However, I note that the chosen extract provided in the Respondent's submissions was an earlier statement of Ms King's. It was not the response the delegate had belatedly sought from Ms King, as included in the decision letter, that Ms Cole was not given the opportunity to respond to ahead of the disciplinary finding decision. Conclusion [116] While I have proceeded to consider each of the three appeal grounds submitted by Ms Cole, the appeal must succeed due to a lack of procedural fairness. [117] In my consideration of Appeal Ground 2 earlier in this Decision, I have explained that the delegate's failure to place Ms King's response before Ms Cole for her comment, before proceeding with making a disciplinary finding, is no mere blemish. It is a fatal 95 Appellant's reply submissions filed 27 July 2023, [22]-[24]. 96 Respondent's submissions filed 20 July 2023, [23]. -- 27 of 28 -- 28 flaw that renders the disciplinary finding process 'unfair', with respect to the Allegation Three finding. [118] I have also accepted Ms Cole's position that procedural fairness to her within the context of the interview was infected because of the external investigator's omission. As explained above, the delegate's disciplinary finding decision was based on her assessment of all evidence available. The delegate considered the transcript of her interview (amongst other things) in making the disciplinary finding, yet Ms Cole was at a distinct disadvantage because the external investigator had not fully covered "the information about the appointment of Inga King". [119] Notwithstanding that determination, I have proceeded to consider Appeal Grounds One and Three. I have analysed the evidence of Ms King, Ms Ward and Ms Cole. [120] For the reasons explained above, it was not fair and reasonable for the delegate to find Allegation Three to be substantiated. [121] Instead, I find that Allegation Three is "not substantiated." [122] I order accordingly. Orders Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision appealed against is set aside and substituted with the following decision: 1. That Allegation Three is not substantiated. 2. That the decision to substantiate Allegation One and not substantiate Allegation Two remain undisturbed. -- 28 of 28 --