Egan v State of Queensland (Department of Education) [2024] QIRC 168

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Egan v State of Queensland (Department of Education) [2024] QIRC 168 PARTIES: EGAN, Marissa (Appellant) v State of Queensland (Department of Education) (Respondent) CASE NO: PSA/2024/40 PROCEEDING: Public Sector Appeal – Appeal against a Fair Treatment Decision DELIVERED ON: 15 July 2024 MEMBER: HEARD AT: Caddie IC On the papers ORDER: 1. That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision is set aside, and replaced with the following decision: 2. A formal investigation by an external investigator is to be conducted into the matters raised in the September 14 material. The matters are to be referred to an appropriate Senior Executive delegate within the Department, who is a person who has not previously been involved in consideration of the IEG or Internal Review. The conduct of the workplace investigation is to comply with the requirements of the Workplace -- 1 of 35 -- 2 Investigations Directive 01/24 and the Public Sector Commission Managing Workplace Investigations Guide. The scope of the investigation should be finalised in consultation with the Appellant and her union (if nominated by the Appellant) to ensure it encompasses all matters relevant to the investigation. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed as a Head of Department at Junction Park State School – where the appellant appeals an internal review decision upholding a local action decision relating to the appellant's lodged internal employee grievance – decision was not fair and reasonable – order that matter be referred for investigation. LEGISLATION: CASES: Code of Conduct for the Queensland Public Service (1 January 2011). Industrial Relations Act 2016 (Qld) ss 562B, 562C. Public Sector Act 2022 (Qld) ss 129, 131, 133. Public Sector Commission Directive 11/20 – Individual Employee Grievances (25 September 2020) cls 4, 5. Queensland Department of Education Employee Grievance Procedure (22 January 2024). Clayton v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 228. Cunnington v State of Queensland (Queensland Health) [2024] QIRC 5. -- 2 of 35 -- 3 Goodall v State of Queensland & Anor [2018] QSC 319. McNeill v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308. Whitson v State of Queensland (Department of Education) [2023] QIRC 202 Reasons for Decision Introduction [1] At all times relevant to the appeal, Ms Marissa Egan ('the Appellant') was employed by the Department of Education ('the Respondent'), as a Head of Department (Curriculum) at Junction Park State School ('JPSS'). [2] On 9 September 2022, the Appellant submitted an individual employee grievance ('IEG') to Mr Hugh Goodfellow, Assistant Regional Director, regarding the conduct of Mr John Bray, Principal, JPSS. A discussion between the Appellant and Mr Bray, facilitated by Mr Goodfellow and Ms Laurelle Woollett, Principal Advisor, Capability – Metropolitan Region, took place on 1 December 2022 ('the local management action'). [3] On 14 September 2023, the Appellant submitted a Request for Internal Review of the deemed Local Action Decision ('LAD'). Appended to this request was a 38-page chronology produced by the Appellant, particularising concerns including extensive, relentless adverse treatment, discrimination and workplace bullying by Mr John Bray and JPSS management, and further victimisation the Department had allowed to occur against the Appellant and employees the Appellant named in her grievance.1 [4] On 3 October 2023, Ms Therese Stephan, Employee Relations Advisor, was appointed as the Appellant's Internal Review Contact. On 30 October 2023 the matter was returned to the Metropolitan South Region to prepare a Stage 1 LAD, as it was determined no decision had been made by a local decision-maker to enable an internal review to occur. After further correspondence Ms Stephan confirmed on 8 November 2023 that further information provided by the Appellant as part of her 14 September internal review request would be considered by the local decision-maker in the Stage 1 Local Action Decision, and that said further information would be provided to the Metropolitan South Region for their consideration. 1 Respondent's bundle of documents filed 5 April 2024, pp 93 – 96 ('Respondent's bundle of documents'). -- 3 of 35 -- 4 [5] On 22 November 2023, Mr Goodfellow issued a LAD setting out the actions he had taken to resolve the Appellant's Grievance in 2022, and his findings: Local action I considered that informal action has been taken, however, no satisfactory resolution was reached. I further considered that your Grievance included sufficient information to enable me to take appropriate action. Accordingly, the following local action has been taken to manage your Grievance: • a preliminary enquiry to determine appropriate options for resolution; • a facilitated discussion between yourself and Mr John Bray on 1 December 2022. As an outcome of this action, in addition to the Policy, Procedure and your Grievance, the following were considered in making a decision: • the outcome from the facilitated discussion on 1 December 2022. • Code of Conduct and Standard of Practice. • The definition of bullying in the workplace. • Part 2 of the Human Rights Act 2019 (HR Act). Decision made through local action As a result of the local action, the following decision has been made with respect to your Grievance: • the administrative decision, that you are aggrieved by, was fair and reasonable. • the conduct or behaviour of Mr Bray was fair and reasonable. • the conduct or behaviour of Mr Bray did not constitute bullying in the workplace. • the conduct or behaviour of Mr Bray was not a breach of the Code of Conduct. [6] On 5 December 2023, the Appellant submitted a Request for Internal Review of the LAD. On 20 February 2024, Ms Rachel Borger, Assistant Director-General, People, Department of Education ('the decision-maker') issued an internal review decision letter ('the decision letter'). The decision upholds the LAD of Mr Goodfellow. [7] The internal review decision of Ms Borger is the subject of this appeal. Scope of the internal review decision [8] Ms Borger summarises her understanding that Ms Egan is aggrieved because of the following issues (original emphasis): Grievance In your grievance, you alleged Mr Bray treated you poorly, discriminated against you because you were pregnant and planned to take maternity leave in 2022, and excluded you from the senior leadership team. You requested action (specifically an apology and/or acknowledgement from Mr Bray and the reimbursement of 15 hours of sick leave) in respect of the following "key aspects" of the Grievance: -- 4 of 35 -- 5 • Mr Bray's decision to decline to support your request to join the Metropolitan Aspiring Leaders Program 2022-2023; • Mr Bray's "unfair and unreasonable" decision to deduct 15 hours of sick leave for the period 30 May 2022 to 1 June 2022; • The "unfair and unreasonable" discontinuation of your role as Acting Deputy Principal in May 2022; • Mr Bray's "unfair and unreasonable" decision to cancel two days of professional development via text message; • The "unfair" recruitment process relating to the appointment of an Acting Deputy Principal for Term 3 2022; • the communication of the decision not to backfill your (Head of Department) (HOD) Curriculum role while you were on maternity leave to all other members of the senior leadership team and some teachers before it was communicated to you; and • the announcement of the potential workplace reform that would remove your position of HOD Curriculum at JPSS in 2023 on Mr Bray's final day prior to scheduled leave. In your initial internal review request, dated 14 September 2023, you made the following allegations: • the leadership team at JPSS had been "relentless" in its targeted adverse treatment and discrimination against you; • You had been subjected to "targeted and relentless workplace bullying" by Mr Bray throughout 2022 and 2023; • Ms Hunter acted "in alliance" with Mr Bray to withhold critical information relating to the attendance of Mr Jason Evans and Ms Anita Manning, Metropolitan Teaching and Learning (T&L) team, at the Week 10 staff meeting by responding to your questions about the meeting in a vague manner; and • Ms Lewis and Ms Wagels had been "victimised" because of their involvement in issues related to your Grievance. [9] The decision-maker then summarised the Appellant's concerns into the following eight grounds: 1. The Local Action Decision does not consider the additional information which was referred back to the Metropolitan South region on 30 October 2023 for consideration as part of your Grievance. 2. Mr Goodfellow did not "fulfill his responsibility in gathering information, including from witnesses" in order to make a fair and reasonable assessment. 3. Mr Goodfellow did not refer the matter to the Department's Intake and Assessment team despite the matter meeting the threshold for further investigation or lodge the Grievance "on the record". 4. Mr Goodfellow did not make reasonable efforts to resolve the issues raised in your Grievance "as early and informally as possible". 5. A conflict of interest arises as a result of Mr Goodfellow's role as a decision-maker in respect of the Local Action Decision and his alleged failure in taking "appropriate and timely action to address allegations of workplace bullying and unlawful discrimination" which you say were first raised on 24 August 2022. 6. The Local Action Decision fails to consider all issues outlined in the Grievance and in the additional information submitted on 14 September 2023. 7. The reasons for Mr Goodfellow's Local Action Decision are "incorrect, based on falsified information and without consideration of evidence" which you say was included in your Grievance and the additional information submitted on 14 September 2023. -- 5 of 35 -- 6 8. The issues outlined in the Grievance have been "reframed" by Mr goodfellow so that the Local Action Decision provides a justification for operational decisions only and does not respond to all evidence of unreasonable conduct and behaviour of Mr Bray. [10] The decision-maker also identifies new allegations in the internal review request, not previously contained in other material lodged by the appellant. Ms Borger indicates these matters are outside the scope of the internal review of the LAD and will not be considered. They are: • allegations concerning Mr Goodfellow's alleged failure to comply with his obligations under the Department's Preventing workplace bullying, sexual harassment and unlawful discrimination policy and s 40(3) of the Public Sector Act 2022; • allegations about the conduct of Mr Bray, Ms Hunter, Ms Reeves, Ms Tracy Caple, Business Manager and Ms Katherine Perry, Deputy Principal, which were not the subject of your Grievance or the additional information submitted in September 2023; and • an allegation that the Department as a whole has failed in its duty of care to you.2 [11] The decision-maker concludes the LAD was fair and reasonable providing detailed reasons in response to the Appellant's concerns summarised below: • Concern 1 and 6 – Failure to consider all issues and information The local decision-maker focussed on the 'key aspects' of the grievance and not the attached 11-page chronology or the additional information provided on 14 September 2023. This is considered reasonable as the grievance document highlights 'key aspects' for which particular action is required and that had formed the basis of the grievance discussion on 1 December 2022. The additional information provided on 14 September 2023 would be referred to a fresh local decision-maker. • Concern 2 – Failure to gather witness information There was no requirement to gather witness evidence. The process requires the decision-maker to take action to resolve the grievance which he did by convening the 1 December 2022 meeting and summarising the outcomes into an email on 6 December 2022. The action taken by the local decision-maker accords with the requested actions in the grievance and there was no indication until four months later that the issues in the grievance remained unresolved. It is further considered that the evidence from the nominated witnesses would have had no impact on the outcome. • Concern 3 – Failure to refer matter to Integrity Unit The local decision-maker had authority to determine if the subject matter of the grievance met the threshold for discipline and/or warranted investigation. Liaison 2 Decision letter of Rachel Borger dated 20 February 2024, p 8; contained in Notice of Appeal filed 12 March 2024 ('Decision letter'). -- 6 of 35 -- 7 occurs with the Integrity Unit if it has been determined that the threshold has been met. As the local decision-maker found no conduct constituting bullying or a breach of the code of conduct, liaison with the Integrity Unit was not required. Further it is asserted the Appellant elected not to refer the matter herself on July 10, 2023, when asked if she would like to do so by a member of the Integrity Unit. • Concern 4 – Failure to follow IEG leading to further adverse treatment It was reasonable for the local decision-maker to consider the action he took to resolve the grievance as sufficient. His failure to provide a written decision as required by the process is acknowledged, however despite this process flaw, the actions he took to resolve the grievance were reasonable. It is also reasonable for him to assume that the issues in the grievance had been resolved as there was no contrary indication until four months later and in that communication no further action was requested other than support for compassionate transfer. • Concern 5 – Alleged conflict of interest The action taken by the local decision-maker was appropriate and there is no evidence that he failed to take reasonable steps to ensure staff at JPSS complied with legislative and policy requirements. Mr Goodfellow did not have an actual or perceived conflict of interest which necessitated the referral of the grievance to another decision-maker. • Concern 7 – Reasons are incorrect, based on false information and do not consider evidence Looking at each of the key aspects of the grievance it was reasonably open to the local decision-maker to reach the conclusions contained in the LAD. In some instances, the outcome aligned with the requested resolution. The reasons outlined in the LAD are fair and reasonable. There is no evidence those reasons are inaccurate or based on false information or insufficient evidence. • Concern 8 – Alleged 'reframing' of issues raised in the Grievance While the Grievance related to concerns about the conduct and behaviour of Mr Bray, each key aspect of the grievance related to an operational decision made by him. This is not reframing but reasonable and appropriate consideration of those decisions as central to the resolution of the grievance. -- 7 of 35 -- 8 Actions to be taken from the internal review [12] The decision-maker indicates that the additional material submitted in the September 14, 2023 internal review request will be referred to a new internal decision-maker for a LAD within 28 days.3 No other action will be taken. The appeal notice [13] The appeal notice filed 12 March 2024 sets out 16 grounds for the appeal. 1. The Internal Review decision acknowledges that the Local Action Decision provided by Mr Goodfellow does not address all issues which were outlined in my Grievance against Mr Bray. 2. Ms Borger incorrectly refers to "key aspects" identified by me in my Grievance. These "key aspects" were identified by Mr Goodfellow. 3. As the 'key aspects' were identified by Mr Goodfellow and not me (the appellant), the Internal Review decision to only address the 'Key aspects of your grievance as identified by you' is not fair and reasonable. 4. The 'Grievance Particulars' within the Individual Employee Grievance submitted on 9 September 2022 stated: See attached statement dated 09/09/2022. The Internal Review decision refers to an '11 page chronology of events' which is my statement of the Grievance Particulars. My statement of the Grievance Particulars have been referred to as 'additional issues', rather they are the issues of my Grievance. 5. My Grievance outlined an extended timeline of adverse treatment from Mr Bray. It is unfair and unreasonable for a Local Action Decision to be made without consideration of all issues in my Grievance. 6. The additional information provided on 14 September 2023 outlined continued adverse treatment by Mr Bray after submission of my IEG against him. Mr Goodfellow's failure to consider this information in determining that Mr Bray's conduct and behaviour did not constitute bullying in the workplace, was unfair and unreasonable. 7. The Grievance outlined an extended timeline of bullying in the workplace by Mr Bray. Based on the particulars of the Grievance, it is unfair and unreasonable of Mr Goodfellow to determine not to gather witness evidence. 8. I was on maternity leave until 18 July 2023. The Queensland Teachers Union had been advocating for a compassionate relocation due to the adverse treatment I had experienced at JPSS. I was contacted by the Intake and Assessment team after the matter was referred to 3 Ms Borger in the decision letter (n 2) noted that she would refer the additional information provided by the Appellant in September 2023 to a fresh decision-maker to consider and issue a Stage 1 LAD. The Appellant in their submissions dated 23 April 2024 noted at [16] and pp 144-147 of their bundle of documents filed 23 April 2024 that this LAD was due on 20 March 2024, but was not completed. The attached correspondence from Kym Shreeve, Executive Director, Business Partnering dated 4 April 2024 noted that any proposed action would be postponed until this appeal's determination. At [8] of the Respondent's submissions filed 19 April 2024, this is described as placing on hold consideration of how to deal with the additional information, rather than placing on hold any proposed action. -- 8 of 35 -- 9 them in July 2023. As I had not returned to work from maternity leave but had been in communication with Mr Goodfellow, I considered the matter as ongoing. On 31 August 2023, I was notified that my request for compassionate relocation had been approved. I submitted an Internal Review request 14 days later with 'a deemed decision' of my Grievance from September 2023. 9. It is unfair and unreasonable of Mr Goodfellow to determine after one facilitated discussion that the conduct or behaviour of Mr Bray over an extended period of time did not constitue [sic.] bullying in the workplace or a breach of the Code of Conduct. 10. The Director for HR Business Partnering Metropolitan Employment Relations Unit, Chris Hodgson, only became aware of the Grievance after the Queensland Teachers Union became involved to advocate for a resolution to the ongoing matter on my behalf. Within a week of becoming aware, Chris Hodgson approved my request for compassionate relocation. 11. It is unfair and unreasonable to determine that one facilitated discussion in December 2022 is considered sufficient to resolve my Grievance, given the circumstances. Adverse treatment continued beyond submission of my Grievance on 9 September 2022. Mr Goodfellow was made aware of this continued adverse treatment and failed to take any further action, as outlined in my request for an Internal Review. 12. I was advised via email on 30 October 2023 by Therese Stephan, Employee Relations Advisor, Integrity and Employee Relations that there was an 'absence of a Local Action Decision' and 'the matter was returned to Metropolitan South Region in order that the appropriate action is undertaken'. There was not 'a procedural flaw', but an absence of a Local Action Decision. 13. I was on maternity leave until 18 July 2023 and considered the matter to be ongoing. I did advise Mr Goodfellow of further adverse treatment, as outlined in my request for an Internal Review in March 2023 & April 2023. Mr Goodfellow could have taken further action but did not. 14. Further adverse treatment continued beyond submission of my Grievance against Mr Bray on 9 September 2022. Mr Goodfellow did not ensure that I was provided with a safe and supportive workplace on return from maternity leave in July 2023 which had a significant impact on my health and personal wellbeing. 15. My WorkCover claim is currently the subject of an appeal. WorkCover has determined that my psychological injury is a workplace injury but that it is a result of a 'reasonable management action'. 16. The additional material referred back to the Metropolitan South Employment Relations Unit in providing a Local Action Decision outlined continued adverse treatment which Mr Goodfellow was aware of and failed to take action in response. The Local Action Decision provided by Mr Goodfellow on 22 November 2023 was unfair and unreasonable in the circumstances as there was a conflict of interest. Is the Appellant entitled to appeal? [14] Section 131 of the Public Sector Act 2022 (Qld) lists the categories of decisions which may be appealed. Section 131(1)(d) provides appeals may be made against fair treatment decisions. Fair treatment decisions are defined in s 129 as being a decision that a public -- 9 of 35 -- 10 sector employee believes is unfair and unreasonable. Section 133 of the PS Act provides that for a fair treatment appeal, a public sector employee aggrieved by the decision may appeal that decision. [15] I am satisfied that the decision is one that may be appealed against, that Ms Egan is entitled to appeal, and that the appeal was lodged within the required time. Appeal principles [16] Section 562B (3) of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against. The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable. Appeals under ch 11 pt 6 div 4 of the IR Act are not by way of re-hearing.4 What decisions can the Commission make? [17] Section 562C of the IR Act relevantly provides: 562C Public service appeals – decision on appeal … (1) In deciding a public service appeal, the commission may — (a) confirm the decision appealed against; or … (c) for another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant instruments The Directive [18] Ms Egan's grievance was lodged pursuant to Public Sector Commission Directive 11/20 – Individual Employee Grievances ('the Directive'). [19] Clause 4 of the Directive outlines the policy principles contemplated by the Directive's framework including; 4. Principles 4.1 The Queensland Government is committed to creating positive and healthy workplace cultures, where employees, supervisors and managers: (a) make decisions and take actions that are fair and transparent, and take responsibility for the consequences of their decisions and actions (b) question actions that are inconsistent with the public service values and Code of Conduct for the Queensland public service (c) treat each other with respect independent of their status or disagreement 4 Goodall v State of Queensland & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the PS Act. -- 10 of 35 -- 11 (d) listen to understand and show empathy for others (e) work together to resolve issues early and as informally as possible. [20] With regards to the matters that can be the subject of an IEG, the Directive states: 5. Matters that can be the subject of an individual employee grievance 5.1 An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that: (a) an administrative decision, which they are aggrieved by, is unfair and unreasonable (b) the conduct or behaviour of an employee, agent or contractor is unfair and unreasonable (c) the conduct or behaviour of an employee, agent or contractor constitutes bullying in the workplace, sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality (d) the conduct or behaviour of an employee is a breach of the Code of Conduct (e) an act or decision is not compatible with human rights under the HR Act. The Department's Individual Employee Grievances Procedure [21] The Department of Education's Individual Employee Grievances Procedure ('the procedure") is consistent with the Directive and includes the following Policy Statement: The department is committed to providing a positive workplace culture, where all employees have the right to lodge a grievance and have confidence that the department will address and appropriately manage and resolve all grievances thoroughly, impartially and in a timely manner. [22] With regards to Stage 1 of the IEG process, the procedure relevantly states: Stage 1: local action … 4. A Local Action Decision Maker will undertake action to resolve the grievance. This action may include, but is not limited to: • conducting preliminary enquiries to determine appropriate options for resolution; • considering human rights impacts for all persons involved and ensuring decisions are compatible with human rights as defined in the HR Act; • arranging alternative dispute resolution strategies including facilitated discussion, mediation, conciliation or negotiation. In circumstances relating to sexual harassment, this may be offered by [sic.] should only occur if agreed to by the aggrieved; • gathering information, including from witnesses; and/or • taking other reasonable action in the circumstances 5. If the Local Action Decision Maker determines that the grievance would meet the threshold for discipline (in accordance with Public Service Commission Directive 05/23: Discipline) and/or require a workplace investigation (in accordance with Public Service Commission Directive 17/20: Workplace investigations) the Local Action Decision Maker will liaise with the Intake and Assessment team regarding a referral on the matter to be managed in accordance with the respective directives. If the referral is accepted by the Intake and Assessment team, the Local Action Decision Maker will advise the aggrieved employee of the referral in finalisation of the Individual Employee Grievance process. -- 11 of 35 -- 12 … 7. The Local Action Decision Maker must make a decision about a grievance as soon as possible, or within 28 calendar days of receipt of the written grievance (or from the date that the information required to submit a grievance is received from the employee), unless an extension has been mutually agreed. A party to the grievance is not to unreasonably withhold their agreement. 8. In relation to grievances about administrative decisions, if the Local Action Decision Maker's decision is not made within 28 days, the department is deemed to have confirmed the administrative decision and the employee may request an internal review (within 14 days of the deemed decision). … 10. The Local Action Decision Maker must provide a written decision (including a decision to take no action) to the aggrieved employee outlining: • any actions taken to manage the grievance and the outcome of these actions; • the reasons for the decision (including reasons for a decision to take no action); • any action the department proposes to take, or will take, as a result of the decision; and • the employee's right to an internal review, including any relevant timeframes. [23] With regards to Stage 2 of the IEG process, the procedure relevantly states: Stage 2: Internal Review 1. If an employee is dissatisfied with a decision made at the local action stage, the employee may request an Internal Review … 2. The request must: • be submitted to [email protected] within 14 days of the employee receiving a copy of the decision; • clearly state the reasons for dissatisfaction with the Local Action decision, and not merely state a belief that the decision was unfair and unreasonable; and • state the action the employee believes would resolve the grievance. 3. An Internal Review considers the process undertaken to manage the grievance at Stage 1: Local Action, including information considered, and any resultant decision. An Internal Review is not a reinvestigation of the grievance, but a determination as to whether the Local Action Decision was fair and reasonable in the circumstances. 4. Once a request for an Internal Review is received, the department must notify the employee in writing (including email): • that the request has been received; • of the name and contact information for the contact person for the Internal Review; and • of the 14-day timeframe for making a decision about the outcome of an Internal Review. 5. An Internal review is to be completed by the Internal Review Decision Maker, who determines whether the decision at Stage 1: Local Action was fair and reasonable in the circumstances. -- 12 of 35 -- 13 … 7. An Internal Review decision must be made as soon as possible, and within 14 days of receipt of a written request from an employee. This timeframe applies unless: • the timeframe has been extended by mutual agreement between the parties (a party to the individual employee grievance is not to unreasonably withhold their agreement); or • where the Internal Review Decision Maker can demonstrate that reasonable attempts have been made to progress the individual employee grievance. … 9. At the completion of an Internal Review, (including a decision to take no further action), the Internal Review Decision Maker must provide a written decision to the employee that outlines: • the action taken to review the decision made at Stage 1: Local Action; • the reasons for the decision, including a decision to not take further action; • any action that the Internal Review Decision Maker proposes to take, or will take, as a result of the Internal Review; and • any avenues of External Review that may be available to the employee, including any relevant timeframes. Approach to the appeal [24] This appeal requires the Commission to decide whether it was fair and reasonable for Ms Borger to decide to uphold the Stage 1 LAD as being fair and reasonable in the circumstances. [25] This involves consideration of the decision arrived at, having regard to the information available to the decision-maker at the time the decision was made, and the process followed. [26] In determining the appeal, I have reviewed and considered all the filed materials, which are substantial. Given the significant amount of material and the convoluted journey of this IEG to Appeal, I consider a process chronology to be useful in this case. This chronology has been drawn from the filed materials of both parties. Process Chronology Date Event 25 April 2022, 27 May 2022, and 7 June 2022 The LAD of Mr Goodfellow notes informal action was attempted to resolve the dispute between the Appellant and Mr Bray on these dates as outlined in the IEG submission form. 26 July 2022 The Appellant met with Ms Laurelle Woollett to discuss alleged adverse treatment. -- 13 of 35 -- 14 29 July 2022 The Appellant requested support from Ms Woollett, Principal, Capability, Metropolitan Region, via email, and discussed alleged adverse treatment. The Appellant alleges Ms Woollett responded later that day, and again on 4 August 2022, about arranging a meeting which never went forward. 24 August 2022 The Appellant has an informal meeting with Mr Hugh Goodfellow, where she first raised the issues she was facing. The LAD of Mr Goodfellow notes this is also the date that she first raised concerns regarding support for an application for permanency as a Head of Department. 5 September 2022 The Appellant commences parental leave. 9 September 2022 The Appellant submitted an Internal Employee Grievance to Mr Hugh Goodfellow, regarding the conduct and decision- making of Mr John Bray. The following documents were included: • Grievance Submission • Grievance Summary with detailed chronological timeline • Appendix 1 & Appendix 2 which are referenced within my Grievance Summary as supporting documentation. Mr Goodfellow emails the Appellant to advise Mr Bray was on leave and that he would begin making enquiries on his return in early October 2022. 1 December 2022 Mr Goodfellow, in managing the Grievance, made preliminary inquiries which culminated in arranging a facilitated discussion. The facilitated discussion involved Mr Goodfellow, Ms Laurelle Woollett, the Appellant, and Mr John Bray.5 At the conclusion of the meeting, it was decided that the Appellant would meet with the leadership team of JPSS near the end of Term 1 2023 to support her return to work following her parental leave planned for Term 2 2023. 5 December 2022 Mr John Bray is on extended leave until 17 April 2023. 6 December 2022 Mr Goodfellow emailed the Appellant, noting the results from the facilitated discussion. Mr Goodfellow stated, "...the meeting provided an effective opportunity to address the concerns [the Appellant] raised." He indicates he will be in contact towards the end of Term 1 to organise the leadership meeting for Term 2. 20 March 2023 The Appellant states Ms Megan Reeves, Acting Principal, JPSS, advises in a phone conversation her request to return 5 The involvement of Mr Goodfellow and Ms Woollett aligns with the Appellant's IEG. -- 14 of 35 -- 15 part-time to her substantive role as Head of Department – Curriculum, on return from parental leave, was denied by Mr Bray. 21 March 2023 The Appellant emails Ms Reeves regarding the conversation and the advice she had received from the Queensland Teachers' Union ('QTU') regarding her rights. 27 March 2023 Ms Reeves communicates with staff to confirm John Bray's return to JPSS and the regional appointment of another person to be full-time Head of Curriculum for term 2. The Appellant emailed Ms Reeves and copied in Mr Goodfellow raising issues of alleged adverse treatment and discrimination regarding leadership refusing her part-time return to work. The Appellant attaches the relevant email exchange. 29 March 2023 Ms Reeves communicates with staff to advise of John Bray's appointment at another school from term 2. 22 April 2023 The Appellant emailed Mr Goodfellow replying to his email of 6 December 2022: • Explaining the delayed response; • Advising her grievance concerns were not addressed at the meeting and providing details; • Indicating the alleged conduct was ongoing- o evidenced by the treatment of her return to her substantive role on a part time basis; and o the question over whether her role had been filled in her absence. • Indicating she felt unsafe and had extended her leave; • Seeking support for compassionate transfer; • Awaiting his advice around next steps; and • Indicating availability to speak or meet in person at any time to discuss further. 4 May 2023 By email, Mr Goodfellow apologises for the delayed response, attaches a compassionate transfer form and indicates he will speak to Ms Reeves about providing support for the transfer request. 18 May 2023 The Appellant attends a meeting on-site with Ms Reeves to discuss return to work post-parental leave. 24 May 2023 The Appellant is advised by QTU Organiser Mr Caleb Rook that a discussion had been held on 22 May 2024 with Mr Goodfellow regarding her return-to-work issues and grievance -- 15 of 35 -- 16 process. The details of that discussion are summarised in an email.6 16 June 2023 The Appellant submitted a formal request for relocation on compassionate grounds. 18 June 2023 The Appellant emails further details of her IEG to the Review Panel for Relocation Chair as suggested by HR Representative Ms Jodie Clayton. 10 July 2023 The Appellant is contacted by Ms Selina Morton, Complaints and Risk Advisor, Integrity – Intake, Referrals and Partnerships of the Department's Integrity Unit. The Appellant states Ms Morton asked if she would like to refer a complaint. The Appellant states she responded asking why the matter had only been recently referred to the integrity team.7 The decision- maker states in the decision letter that the Appellant advised that she did not want to refer a complaint for consideration.8 18 July 2023 The Appellant returns to work but states she is performing her substantive role in name only due to the ongoing full-time employment of the regional appointee.9 1 August 2023 The Appellant receives correspondence from the QTU indicating her request for relocation was denied, as the issues raised in her Grievance were resolved. The Appellant notes at the time of receiving this email she was in Megan Reeves' office for a scheduled meeting, and the Appellant shared the email with Ms Reeves.10 8 August 2023 The Appellant describes herself as suffering incapacity due to ill health. From this point in time, she was on leave.11 14 August 2023 The QTU forwarded documents to Chris Hodgson to support the Appellant's case, including: • Updated timeline of alleged events at JPSS (38-page document of issues between 2022 – 2023); and • Email from Hugh Goodfellow post-meeting, dated 6 December 2022; and • Appellant's Head of Department – Curriculum return to work timeline 2023v2 (16-page document with chronology and supporting documentation). 21 & 22 August 2023 The Appellant emailed Melinda Covill, Manager, Teacher Talent and Mobility, documents regarding alleged adverse 6 Appellant's bundle of documents filed 23 April 2024, p 163 ('Appellant's bundle of documents'). 7 Respondent's bundle of documents (n 1) p 50. 8 Decision letter (n 2), p 6. 9 Appellant's bundle of documents (n 6), pp 38, 106, 136. 10 Ibid, p 42. 11 Ibid, p 27. -- 16 of 35 -- 17 treatment, bullying and discrimination to support her request for compassionate transfer.12 In the week of 21 August 2023, a meeting takes place between QTU representatives, and Chris Hodgson, Director, HR Business Partnering, Metropolitan Region13. 28 August 2023 The Appellant notified Ms Reeves that she was extending her sick leave further and requested an increase to her FTE and approval to access her long service leave.14 29 August 2023 An email from the Appellant's GP to Ms Covill requesting an expedited resolution of the matters was received. Ms Covill emailed the Appellant to advise she was not involved in the matter. 30 August 2023 The QTU advised the Appellant that Chris Hodgson and Melinda Covill agreed to support her compassionate relocation. 31 August 2023 The Appellant's request for transfer on compassionate grounds was approved. The Appellant was advised by phone of this by Diminee Parnell, People Branch. The Appellant later the same day received confirmation by email. 14 September 2023 The Appellant submitted a Request for Internal Review of the 'deemed decision' in her IEG and included a 38-page attachment particularising further concerns. The Appellant included five documents in her Request: • Request for Internal Review; • Grievance Submission (9-page document of issues between 2021-2022); • Grievance summary; • Email from Hugh Goodfellow post-meeting, dated 6 December 2022; and • Updated timeline of alleged events at JPSS (38-page document of issues between 2022 – 2023). 19 September 2023 The Appellant contacted the QTU to seek advice regarding further support for her Grievance. 21 September 2023 The Appellant sent a follow-up email to the Internal Reviews team as she had not yet received acknowledgement from the Department regarding her request for an internal review. 12 Correspondence dated 22 August 2023, filed 23 April 2024. 13 Appellant's bundle of documents (n 6), p 170. 14 Ibid, p 46. -- 17 of 35 -- 18 The Appellant received a response later that morning, noting the matter was referred to the Metropolitan South team to action as a Stage 1 LAD. 3 October 2023 Ms Therese Stephan, Employee Relations Advisor, emailed the Appellant to advise that she was the Appellant's Internal Review contact. The Appellant emailed Ms Stephan to seek clarification, as the Appellant understood the matter was transferred to Metropolitan South to action as a Stage 1 LAD. Ms Stephan advised the Manager of the Internal Review team determined the matter should be actioned as an internal review, not an IEG. 10 October 2023 Ms Stephan emailed the Appellant advising she was gathering information prior to drafting a response, and asked when the Complainant lodged her Grievance and summary document, and any communications she had in relation to her Grievance. The Appellant replied to Ms Stephan on the same day, providing further information regarding her Grievance, and of events the Appellant alleged occurred between 26 July 2022 and 6 December 2022. The Appellant also states that she provided the following documents which she submits were not considered by Mr Goodfellow: • Email chain with Megan Reeves & Hugh Goodfellow dated 27/03/2023; • Email chain with Hugh Goodfellow dated 22/04/2023; • Email of Grievance submission dated 09/09/2022; • Email to Melinda Covill dated 21/08/2023; • Email from Hugh Goodfellow dated 04/05/2023; and • Letter from the Appellant's doctor sent to Melinda Covill dated 29/08/2023. 11 October 2023 Ms Stephan confirmed receipt of the Appellant's additional information. 18 October 2023 Ms Stephan emailed the Appellant to advise her that the Internal Review was progressing, and that she sought further information from the Region. The Appellant then emailed Ms Stephan asking for a turnaround estimate. -- 18 of 35 -- 19 19 October 2023 Ms Stephan emailed the Appellant advising no commitment could be made on turnaround estimate. 28 October 2023 The Appellant emailed Ms Stephan requesting an update on the Internal Review. 30 October 2023 Ms Stephan emailed the Appellant to advise it had become clear there was no LAD to review and that the matter had been returned to the Metropolitan South Region to prepare a LAD. On the same date, the Appellant provided information to the Metropolitan South Region Employment Relations Unit for consideration of the Grievance.15 6 November 2023 The Appellant emailed Ms Stephan asking if the Metropolitan South Region would review all matters which continued to occur beyond her submission of the original IEG on 9 September 2022. 8 November 2023 The Appellant was advised by Ms Stephan that the concerns and issues raised merited further inquiries at a local level. The Grievance would be returned to Metro South Region for a Stage 1 LAD and the additional information provided as part of her Stage 2 Internal Review Request would be considered as part of that Grievance.16 20 November 2023 The Appellant emailed the Metro South Employee Relations Unit to follow up the progress of her Grievance, noting three weeks had passed since the Grievance was returned by the internal review team for a LAD. The Unit confirmed by reply email that Hugh Goodfellow would be providing the Appellant with a letter soon. The Appellant replied inquiring if Mr Goodfellow was appointed as the local action decision-maker, however did not receive a reply until Mr Goodfellow issued the Stage 1 LAD two days later. 22 November 2023 The Stage 1 Local Action Decision is issued by Mr Goodfellow finding: • the administrative decisions were fair and reasonable; and 15 The Appellant refers to this in p 1 of her Request for Internal Review Form dated 5 December 2023, contained in p 26 of the Appellant's bundle of documents (n 6). 16 This email is contained in p 77 of the Appellant's bundle of documents (n 6). The Briefing Note dated 16 February 2024 contained in p 40 of the Respondent's bundle of documents (n 1) incorrectly referred to this correspondence as being sent on 11 December 2023. -- 19 of 35 -- 20 • the conduct or behaviour of Mr John Bray was fair and reasonable, did not constitute bullying in the workplace, and was not a breach of the Code of Conduct. 5 December 2023 The Appellant emailed a Request for Internal Review form to the Department, requesting that the LAD of Mr Goodfellow made 22 November 2023, be reviewed. 6 December 2023 Ms Therese Stephan emailed the Appellant notifying her that she was the Appellant's contact person for the Grievance, and that the Internal Review was underway. 19 December 2023 The Appellant agreed to an extension of time of the Internal Review to 29 January 2024. 25 January 2024 Mr Scott Bewley, Principal Advisor, replaced Ms Therese Stephan as contact person for the Appellant's inquiries. Mr Bewley acknowledged the Appellant's previous agreement to extend the Internal Review to 29 January 2024 and requested a further extension to 12 February 2024. 29 January 2024 The Appellant agreed to a further extension of the Internal Review to 12 February 2024 and sought clarification on its scope. 31 January 2024 Mr Scott Bewley confirmed the Internal Review was not a reinvestigation of the grievance but would determine whether the LAD was fair and reasonable in the circumstances. 20 February 2024 The Internal Review Decision letter was issued. 12 March 2024 Appeal filed. Respondent's submissions [27] The Respondent largely supports the consideration and findings of Ms Borger in the decision letter. A summary of those submissions follows. Key aspects and additional information [28] The Respondent confirms that the IEG lodged by the Appellant identifies key aspects of the grievance in the 'Desired Actions' section of the document. Further, the Respondent states that the resolution meeting held on 1 December 2022 focussed on these key aspects without objection by the Appellant. [29] It is further submitted that as the LAD related to the action taken by the local decision- maker in reference to the IEG, the matters identified in the September 14 internal review request were out of scope. They submit this was reasonable; however, they note the 14 September material was referred by the decision-maker to a new local decision-maker for local action. -- 20 of 35 -- 21 Local decision-maker determines the approach [30] The Respondent confirms Mr Goodfellow reasonably determined the approach to be taken to resolving the IEG. The Respondent submits interviewing witnesses is an option and not a requirement of the Directive, and the decision not to interview particular witnesses was unlikely to materially alter the outcome. It was therefore, in the Respondent's submissions, open to Mr Goodfellow to determine that the facilitated discussion was the action taken to resolve the grievance. It is further asserted that it was reasonable for the local decision-maker to assume the action taken was not disputed by the Appellant, as she did not reply to the 6 December 2022 email until four months later, and she did not formally dispute the outcomes until September 2023. [31] The Respondent submits that even if the Appellant's delay was justified, it does not render the 20 February 2024 decision unfair or unreasonable. [32] The Respondent reiterates the view of the decision-maker that referral to the Integrity Unit was a matter for the local decision-maker to determine, and notes the Appellant never requested that this should occur. Issues with the IEG procedure [33] The Respondent disputes the Appellant's characterisation of the 1 December 2022 meeting as insufficient action to resolve her grievance. The Respondent also disputes that there was no local action decision taken by Mr Goodfellow until the LAD was issued in November 2023. The Respondent submits there is a distinction between deciding the matter within 28 days, and issuing the final written decision, referring to Power IC in Cunnington v State of Queensland:17 [45] In most instances, simple grievances will be resolved by a decision within a 28-day timeframe. However, in circumstances involving the use of an external investigator, as was the case in this matter, it is not unusual for the final decision to be given beyond that timeframe. Clause 9.1(d) of the Directive provides that the Department is required to make 'a decision about an individual employee grievance'. Mr Lucas made the decision that the grievance be subject to an external investigation. That decision was consistent with the requirements of the Directive. Depending on the complexity of the grievance, it is not necessary that a final outcome be provided within 28 days, only that a decision be made about the grievance. [34] The Respondent further submits the fact that the written decision was not issued until November 2023 does not, of itself, render the internal review decision unfair and unreasonable. The Respondent refers to Dwyer IC in McNeill v State of Queensland18 in making this submission:19 17 Cunnington v State of Queensland (Queensland Health) [2024] QIRC 5, [45]. 18 McNeil v State of Queensland (Electoral Commission of Queensland) [2023] QIRC 308, [68]. 19 Original emphasis, citations omitted. -- 21 of 35 -- 22 [68] The function of the Commission is to review a decision to determine whether it is fair and reasonable. While a failure to comply with an applicable directive might have the capacity to render a decision unfair or unreasonable in a particular set of circumstances, it is equally true that it may only amount to a technical defect in the process that otherwise produces no unfairness. A failure to conform with a directive will not, of itself, render a decision unfair and unreasonable. [35] Finally, the Respondent queries the relevance of the Workers' Compensation appeal referred to in ground 15 of the appeal notice, and argues that the Appellant has not identified any basis for Mr Goodfellow's alleged conflict of interest at the time of issuing the LAD. Outcome Sought [36] The Respondent submits the 20 February 2024 decision is fair and reasonable and that the decision appealed against should be confirmed. Appellant's submissions [37] In reply, the Appellant submits, in summary, that the LAD was not fair and reasonable due to a range of errors with the process and findings, and that the decision-maker (and Respondent) erred when confirming the process and resultant decision. While much of the material repeats information in the filed notice of appeal, the Appellant addresses in some detail why, in her submission, it was not reasonable for Mr Goodfellow to determine her concerns had been addressed and that there was no wrongdoing. Matters ongoing and unresolved [38] The Appellant contends it was reasonable that she considered the matters to be ongoing as both parties were on extended leave. The Appellant was on parental leave. She further submits the conduct continued following the December meeting, in relation to issues around her return to work from parental leave on a part-time basis. These issues were raised with Ms Reeves, the QTU and Mr Goodfellow by email. [39] On 22 April 2023 the Appellant submits she directly communicated with Mr Goodfellow to indicate her delayed response to his email of 6 December 2022 was due to her personal health and family circumstances since the informal meeting. In the email the Appellant indicates her concerns have not been resolved, provides detailed reasons for the assertion, and provides details of alleged continuing inappropriate conduct. The Appellant submits this is evidence that the matters were ongoing and unresolved, and that this was clearly communicated to the local decision-maker. The Appellant describes the response of Mr Goodfellow to this email as inadequate. -- 22 of 35 -- 23 [40] The Appellant provides details of the ongoing advocacy occurring on her behalf by the QTU with Mr Goodfellow and other regional management representatives. This related to her desire for compassionate transfer and her unresolved grievance. The ultimate decision to approve her request for relocation on compassionate grounds demonstrated 'acknowledgement of merit given to the grievance.' Other process issues [41] The Appellant cites Merrell DP in Clayton v State of Queensland,20 and addresses the decision-maker's dismissal of the likely impact of witness evidence had it been gathered. In reference to submissions that other witnesses were not called 'as they would not further assist the situation or her insight…'21 his Honour states: [60] …if this was her rationale, then it does not make any reasonable sense. Ms Slater could not know if any nominated witnesses to the alleged events had any information about the alleged events unless she asked them . … [42] The Appellant submits the statement of Ms Borger that "In my view you cannot reasonably complain about the fact that Mr Goodfellow did not gather witness evident [sic.] in relation to the Grievance almost one year after Mr Goodfellow advised you, he considered your concerns had been effectively addressed" is unfair and unreasonable. [43] The Appellant restates her concern over the local decision-maker's repeated failure to consider all the issues in her grievance, as well as the detailed information and particulars she provided. The failure to inquire and instead narrow the decision to the action and decision of the December 2022 meeting is inadequate and incorrect. The confirmation of the approach by the decision-maker renders her decision unfair and unreasonable. Conflict of Interest [44] The Appellant refers to p 25 of her December internal review request22 to find the basis for the alleged conflict. The alleged conflict, in summary, included that there was correspondence between the Appellant and Mr Goodfellow where the Appellant contends Mr Goodfellow did not respond appropriately to her requests for support, and that LAD records of conversations which took place at the informal meeting were incorrect and contradicted concerns the Appellant emailed to Mr Goodfellow, which were not responded to. Outcome sought 20 Clayton v State of Queensland (Department of Transport and Main Roads) [2021] QIRC 228 ('Clayton') 21 Ibid, [59]. 22 Appellant's bundle of documents (n 6), p 50. -- 23 of 35 -- 24 [45] The Appellant submits the internal review decision is unfair and unreasonable and requests it be set aside and replaced with a different decision. Respondent's submissions in reply [46] In reply, the Respondent submits that the LAD is not the decision under review and the Commission is not required to determine if it was fair and reasonable. [47] The Respondent accepts that local action decision-makers are required to provide written decisions in respect of a grievance but does not accept the Appellant's contention that the purpose of a LAD is to provide a written decision. The Respondent instead states that the purpose of a LAD is to address and respond to grievances at a workplace or regional level. [48] The Respondent maintains that it was reasonable for the decision-maker to determine to deal with the additional information not addressed by the LAD by referral to a fresh local decision-maker. Further that it was reasonable for Ms Borger to conclude that new allegations raised in the 5 December request for Internal Review were outside of its scope. [49] The Respondent denies that Mr Goodfellow's response to the Appellant's email of 22 April 2023 was inadequate, given the action the Appellant requested was to support her application for compassionate transfer – which Mr Goodfellow did. [50] The Respondent acknowledges the Appellant's reference to Clayton but submits its relevance to this appeal is not made clear, and in any event the facts are distinguishable from this matter. [51] In relation to the Appellant's reasonable belief that the matter was ongoing, the Respondent submits it is irrelevant in determining whether the 20 February decision was fair and reasonable. Further, while the Appellant may have considered the 1 December meeting was ineffective, the Respondent submits it was fair and reasonable for Mr Goodfellow to consider it resolved the grievance in the circumstances. [52] Finally, the Respondent rejects the contention that the acceptance of the compassionate relocation request demonstrates the grievance has merit and has no impact on the fairness or reasonableness of the 20 February 2024 decision. Appellant's further submissions in reply [53] The Appellant sought leave to provide further submissions in response and this was granted. -- 24 of 35 -- 25 [54] The appellant reiterates her earlier submissions that the LAD was based on a procedure that: • did not follow the IEG procedure; • failed to gather witness evidence; and • failed to consider and address all of the issues raised. [55] For these reasons, the Appellant contends that upholding the LAD renders the 20 February 2024 decision fatally flawed. [56] Substantial submissions are made by the Appellant in relation to why she considers Mr Goodfellow had a conflict of interest when the IEG was referred back to him as local action decision-maker (for the third time) on 30 October 2023. This includes the submissions made below: The LAD decision maker had a Conflict of Interest & the Internal Review decision failed to recognise this. … 13. In reply to [20] of the Respondent's submissions, the Appellant will now clarify the significance of the email sent to Mr Goodfellow on 22 April 2023, and his failure to respond in a fair and reasonable way. The email was in excess of 2700 words and again, outlined the significant level of adverse treatment & workplace bullying Ms Egan had been subjected to, and the documented history of unlawful discrimination on the grounds of pregnancy and family responsibilities, which was continuing even while on maternity leave. Ms Egan stated the significant impact this has had on her personal health and wellbeing, and that she 'held serious concerns about returning to an unsafe workplace where I am not supported in a part- time capacity.' The final paragraph stated, 'I look forward to hearing from you in the near future with advice around next steps. I am available to speak with you at any time or make arrangements to meet in person to discuss further.' The Appellant was requesting support in the continued issues she was experiencing. Mr Goodfellow was aware of the adverse treatment against Ms Egan and should have intervened to prevent the continuation of the course of conduct. As a last resort only, the Appellant was seeking support in a compassionate transfer. The Appellant maintains that Mr Goodfellow's response was inadequate, and in fact managerial misconduct. Ms Borger's failure to see the conflict of interest by Mr Goodfellow in providing a LAD 22 November 2023 deems the Internal Review decision unfair and unreasonable in the circumstances. … 15. The Appellant further submits that 'additional material' had already been referred from the Internal Review team to the MSR ERU on 30 October 2023. The Appellant submits that the grievance should have been referred to 'a fresh decision maker' at that point in time, not almost 5 months later on 20 February 2024. The Internal Review decision by Ms Borger is not fair & reasonable in the circumstances. [57] The Appellant further submits why the facts in Clayton are relevant to the facts in her appeal: -- 25 of 35 -- 26 17. … Like Clayton, the Appellant provided a detailed timeline of unfair & unreasonable conduct of Mr Bray from April 2022 to August 2022 in her IEG submitted 9 September 2022. Mr Goodfellow failed to investigate all of these events. Further adverse treatment continued beyond submission of the IEG… As in the case of Clayton, given the Appellant's complaint concerned a pattern of behaviour over a period of time, it would have been fair & reasonable for Mr Goodfellow to have at least put all of those matters to the other employees (Mr Bray & Ms Reeves) for their response. In being fair & reasonable to the Appellant, that should have at least been done. This course was not undertaken by Mr Goodfellow… [58] Further submissions were made in relation to the failure to gather witness statements: Failure to gather information from witnesses 18. At [9]-[10] of their submissions, the Respondent states, 'The Appellant ought to have been aware since at least 1 December 2022 that the action Mr Goodfellow was taking in respect of the grievance was not to gather witness evidence, but instead, to have a facilitated discussion between her & Mr Bray.' In response, the Appellant submits that Mr Goodfellow did not disclose that he had not sought witness statements prior to the meeting, nor did he disclose that he wouldn't in the future. Mr Goodfellow also did not disclose that the only action he was taking in respect of the grievance was to have an informal meeting. The Appellant submits that the discussions held at the meeting in fact warranted further enquiries to be made by Mr Goodfellow. The Appellant considered the matter as ongoing & unresolved. The Appellant repeats & relies on [23]-[31] of her submissions. [59] The Appellant responds to the Respondent's submission that the Commission need not consider the reasonableness of the LAD. The Appellant submits that because the internal review considers the process undertaken at Stage 1, including information considered and any resultant action, it is relevant for the Commission to consider the process and resultant decision as confirmed by Ms Borger. Consideration Scope of the Commission's review [60] The decision appealed against is the internal review decision of Ms Borger. That decision arises from her consideration of the LAD at Stage 1 according to the requirements of the Directive and the Procedure. As Pidgeon IC reasons in Whitson v State of Queensland:23 [79] I understand Mr Whitson's submission that the appeal relates to both the local action decision and the internal review. I understand the point Mr Whitson makes is that any consideration of whether the internal review decision was fair and reasonable necessitates a consideration of the local action decision. The approach I am taking in considering this appeal is to focus on the decision under review, that being the internal review decision of Ms Borger. However, it is clear that in considering the internal review decision, it is necessary to have regards to Mr Craig's local action decision. 23 Whitson v State of Queensland (Department of Education) [2023] QIRC 202, [79]. -- 26 of 35 -- 27 [61] This approach follows similar reasoning adopted by Merrell DP in Clayton:24 [22] Mr Clayton states he is appealing '…both my original complaint outcome and the two subsequent internal reviews.' … While it can only be Ms Smith's internal review decision that Mr Clayton can appeal, given Ms Smith's decision was an internal review of Ms Slater's two decisions, I will give consideration to all of the appeal grounds…in determining whether or not Ms Smith's decision was fair and reasonable. [62] I agree with this approach, while also reiterating that this appeal is not a fresh hearing of the underlying grievance. Reasons for appeal Reasons 1- 5: Key aspects of the original grievance [63] The decision-maker determined it was appropriate for Mr Goodfellow to only address the key aspects of the grievance as those were the matters that Mr Goodfellow considered were clearly specified by the Appellant. This led the decision-maker to further decide the failure to address or consider the particulars of the grievance set out in the Appellant's attachment to the IEG was also reasonable. This foundational proposition is then used as the basis to find that it was reasonable for the local decision-maker to constrain the consideration of the alleged conduct to the listed administrative decisions from that section of the document. [64] I do not agree. In the IEG Form under the heading 'Grievance Categorisation,'25 the Appellant indicates the grievance relates to administrative decisions and conduct and behaviour and an alleged breach of the Code of Conduct.26 Further, under the heading of 'Grievance Particulars,' the Appellant states "Based on my honest belief, the following are the reasonable grounds which support this grievance: See attached statement dated 09/09/22."27 The statement is titled 'Grievance Summary.' The attached statement was, in the Appellant's submissions, intended to set out the particulars of her entire grievance and should not have been characterised as additional information. [65] On my own review, the particulars seem to chart the perceived change in relationship between the Appellant and the Principal, Mr Bray, and place the impugned decisions and behaviour in the context of what the Appellant argues is a course of discriminatory or bullying conduct. Whether or not that information would have been sufficient to demonstrate a breach of the Code of Conduct as bullying or discrimination cannot be known as it was never considered. The local action decision-maker, supported by the decision-maker, confined their consideration instead to key aspects of the grievance. 24 Clayton (n 20). 25 Respondent's bundle of documents (n 1), p 26. 26 Code of Conduct for the Queensland Public Service (1 January 2011). 27 Respondent's bundle of documents (n 1), p 27. -- 27 of 35 -- 28 [66] The term 'key aspects" only appears in the 'Desired Action/s' section of the IEG at point three as follows: 3. Mediation facilitated by an external party (preferably Laurelle Woollett or Hugh Goodfellow) and an apology from John Bray which acknowledges the ongoing unfair treatment I was subjected to by him over a period of time from the end of May 2022 to the end of July 2022, inclusive of the following key aspects of my grievance: [67] I do not accept the inference of the decision-maker that any grievance process is confined only to resolution of issues as outlined in the desired action section of the form and not to "additional issues" for which no "specific action" has been identified. This is particularly the case when the "additional issues" have clearly been attached as the Grievance Particulars and point three of the Desired Action/s section refers broadly to ongoing unfair treatment. I cannot see anything in the Directive, the Procedure or the IEG form that would support this narrow reading. [68] It therefore follows that I do not accept the following statement by the decision-maker: While your grievance related to concerns you held about the behaviour and conduct of Mr Bray. Each of the "key aspects" of the Grievance (as identified by you) related to an operational decision by Mr Bray. I consider your key concerns related to the operational decisions made by Mr Bray and, for the most part, it was reasonable and appropriate for Mr Goodfellow to resolve your Grievance by determining whether those operational decisions were fair, reasonable and/or appropriate. [69] By upholding the local action decision-maker's approach to the grievance as though it was a consideration of separate operational decisions, the decision-maker has failed to consider those decisions as examples of alleged unfair treatment for an alleged improper purpose when taken together and as part of a broader set of particulars, and over a period of time up to and including the 14 September 2023 particulars. Reasons 6 and 13: Information provided on 14 September 2023 [70] As the LAD was ultimately confined to the action and decision made by the local action decision-maker in 2022, the decision-maker found it was reasonable that the 14 September additional information was considered out of scope. It is acknowledged however that in circumstances where the Appellant had been advised that this material would be considered as part of the finalisation of the original IEG, it had been referred to a fresh local action decision-maker. This course of action is affirmed by the Respondent as fair and reasonable. 28 [71] It is not clear on any of the material before me how it came to be that despite repeated assurances to the Appellant that the additional information would be considered as part of finalisation of Stage 1 of the IEG, the LAD as issued on 22 November 2023 was 28 It is noted this action has been put on hold by the Respondent pending the outcome of this appeal. -- 28 of 35 -- 29 confined only to the steps taken in December 2022. Keeping in mind the seriousness of these allegations, it is more confounding when considered alongside the way in which the 14 September 2023 information was handled when it was originally provided by the Appellant as part of the first internal review request. It is relevant that the Appellant considered this material to be further evidence of a continuing course of discriminatory conduct she was being subjected to, even while she was absent on parental leave and after her return. [72] I am not convinced that the decision-maker referring this material for local action for a third time29 (albeit with a fresh decision-maker), is fair and reasonable in the circumstances. Reasons 7 and 8: Failure to interview witnesses and Integrity Unit referral [73] The decision-maker determined it was reasonable for the local action decision-maker to not interview witnesses, and that the two witnesses nominated in the internal review request could not have made a material difference. In support of the first contention, the decision-maker and Respondent rely on the agency grievance procedure to correctly contend, in the Commission's view, that interviewing witnesses is not mandated. However, the Appellant argues that given the seriousness of the allegations encompassing conduct over a significant period of time, it was unreasonable not to gather witness evidence at all. [74] The decision-maker further addresses the Appellant's concern in the internal review request that the local action decision-maker failed to refer the matter or liaise with the Department's Integrity Unit Intake and Assessment Team in relation to investigating the serious issues raised over time in the grievance process. Again, the decision-maker correctly states liaising is required if the decision-maker determines that the matters meet the threshold required.30 The decision-maker also states the Appellant never asked the local decision-maker to refer the matter and herself did not take up an offer to refer the matter when asked by a member of the Team on 10 July 2023. The decision-maker argues this might have led to a formal workplace investigation including interviewing relevant witnesses. [75] I cannot see in the material before me that this assertion by the decision-maker is directly challenged by the Appellant, however in the notice of appeal she states that she was still on maternity leave, that she had been in contact with Mr Goodfellow and considered the matter ongoing. 29 Refer to the chronology at [26] of this decision – particularly the entries for 21 September 2023, 8 November 2023, and 20 February 2024. 30 Queensland Department of Education Employee Grievance Procedure (22 January 2024), Stage 1: Local Action cl 5; Decision letter (n 2), p 7. -- 29 of 35 -- 30 [76] If the Appellant failed to take up the opportunity when it was offered directly, it would be unreasonable for the Appellant to rely on the local action decision-maker not seeking a referral and the decision-maker confirming this action, as a ground for appeal. Reasons 9, 11, 12 and 14: The Grievance was not resolved, local action was inadequate, and the conduct was ongoing and not addressed [77] The second foundational proposition of the decision-maker is that it was entirely reasonable for Mr Goodfellow to assume the key aspects of the grievance had been resolved to the satisfaction of the Appellant due to the facilitated discussion he had convened. This statement is based on an email sent by Mr Goodfellow to the Appellant on 6 December 2022 reproduced in the decision letter as follows:31 Morning Marissa I just wanted to thank you again for sharing so clearly last week how decisions at Junction Park had affected you. I also believe that John was genuine in his apologies and the meeting provided an effective opportunity to address the concerns you raised. I will contact you towards the end of term 1 to organise a JPSS leadership team meeting before your return to work in Term 2 … [78] This statement was correct up until 22 April 2023, when the Appellant replies to the 6 December email making it clear the issues were not resolved. In the email, the Appellant explains the delay in her response was due to family and health issues (noting she was still on parental leave). The Appellant advises her grievance concerns were not addressed at the meeting, indicating that the alleged conduct is ongoing, as evidenced by her difficulty exercising her rights to return to her substantive role on a part time basis. She further raises that she feels unsafe returning and had extended her leave. The Appellant seeks support for compassionate transfer and awaits Mr Goodfellow's advice around next steps. The Appellant notes her availability to speak or meet in person at any time to discuss further. [79] It is worth noting that even though much is made of the four-month delay in Ms Egan's reply, no LAD had been issued at this stage. [80] The Respondent in its submissions relies on Cunnington,32 disputing that there was in fact a LAD, as a LAD is distinct from Mr Goodfellow's written decision on 22 November 2023.33 That is, the LAD is the local action itself, rather than the written decision following the action. The Respondent submits that it is not necessary that a final outcome be provided within 28 days; only that 'a decision' be made about the grievance, and that Mr Goodfellow took reasonable steps to resolve the grievance as early and informally as 31 Decision letter (n 2), p 6. 32 n 17. 33 Respondent's submissions filed 5 April 2024, [23]. -- 30 of 35 -- 31 possible. Earlier at [23] of its submissions, the Respondent notes the facilitated discussion was one of the actions available and open to Mr Goodfellow to resolve the grievance, which was not objected to by the Complainant, and there was no evidence of dissatisfaction until her response on 22 April 2023. [81] The only document that exists at this time to suggest Mr Goodfellow has determined the grievance has been resolved is the email sent by himself, wherein he asserts the concerns were addressed. There can be no reasonable suggestion following receipt of the email in reply that the issues had been addressed or resolved to the Appellant's satisfaction. [82] While the proposition in Cunnington that it is not unusual for final decisions to be given beyond the 28-day timeframe is true; and is certainly true in this matter; that is not the point. In Cunnington, the decision was to refer the matter to external investigation. That is not equivalent to this case where the 'decision' was to take no further action including no action to address allegations of ongoing inappropriate conduct. [83] On 4 May 2023, Mr Goodfellow responds to the Appellant's email by apologising for the delay, as he followed up the Appellant's request in relation to the transfer and attaches the compassionate transfer request form. The decision-maker concludes this response was reasonable as the only action the Appellant requested was Mr Goodfellow's support for compassionate transfer. I do not accept this view, and as outlined in the Appellant's submissions referenced at paragraph [56] above, the email related to all of the matters it contained, and the referenced next steps and availability to meet were not confined to the Appellant seeking compassionate transfer. [84] The Respondent in submissions then reiterates that it was a reasonable assumption that the grievance was resolved when they state that the Appellant did not 'formally' dispute the December 2022 outcomes until the Appellant lodged the first internal review request on 14 September 2023. This submission does not reflect well on the Department and ignores the fact that the internal review request related to what the Appellant characterises as a deemed decision, as there was still no LAD issued. This was a fact that was later confirmed by Ms Therese Stephan, the Departmental contact person for the 14 September internal review, on 30 October 2023. An internal review could not be undertaken in the absence of a LAD. [85] By the time Mr Goodfellow issued his LAD on 22 November 2023, he was in receipt of the Appellant’s response to his 6 December 2022 email, had received several emails regarding alleged ongoing inappropriate conduct, had had at least one conversation with the QTU, and had received the 14 September 2023 material. It is the 22 November 2023 LAD that was subject to the internal review – not based on what Mr Goodfellow thought reasonable when he sent his email on 6 December 2022, but what was reasonable when the decision was finally made. -- 31 of 35 -- 32 [86] It is further submitted by the Respondent that even if the Appellant did not agree that the issues were resolved, it was reasonably open to Mr Goodfellow to determine the steps he had taken were reasonable and sufficient to resolve the grievance and for the decision- maker to confirm that view in her internal review decision. [87] However, there seems to have been no common understanding of where the process was at. This was exacerbated by the two main actors being on extended leave, and the Appellant continuing to face related issues even after the facilitated discussion. These issues and the feeling of not being heard have prompted the Appellant to respond by providing more and more information, becoming increasingly frustrated with the process (and process U-turns), and being more strident in her efforts to follow up with the Department for an outcome. [88] This unfortunately was counterproductive, as more information and an expanding list of subject officers got added to the Appellant's grievances and the underlying issues got lost or were easier to lose in impenetrable 38-page documents containing embedded email trails. This is not intended as a criticism of the Appellant; this is a failure of the process and is not consistent with the policy statement that: The department is committed to providing a positive workplace culture, where all employees have the right to lodge a grievance and have confidence that the department will address and appropriately manage and resolve all grievances thoroughly, impartially and in a timely manner. [89] The Appellant was officially advised that she would be provided with a Stage 1 LAD that was inclusive of the issues raised in her original grievance, as well as the allegations of related ongoing unfair treatment documented in the 14 September internal review request. The 22 November 2023 LAD failed to address all issues documented in the original grievance, did not address the allegations of ongoing inappropriate conduct and made findings about serious allegations of bullying and discriminatory behaviour based on a single facilitated discussion in December 2022. The internal review finding that this outcome was fair and reasonable cannot reasonably be made out by the decision-maker in these circumstances. Reason 10: What Chris Hodgson knew [90] The essence of the Appellant's appeal ground is that it was unfair and unreasonable that Mr Chris Hodgson, as Director for HR Business Partnering, was unaware of the Appellant's grievance until the QTU became involved. Ms Borger notes in the decision that she is unaware of what the Appellant means when she indicated the grievance was not formally lodged, as there is no such requirement in the relevant instruments. I agree that what Mr Hodgson knew and when is not a relevant consideration for this appeal. This appeal ground has not been made out. -- 32 of 35 -- 33 Reason 15: Workcover appeal about reasonable management action [91] The Appellant cites a pending Workers Compensation appeal as a reason for this appeal. This is in response to the decision-maker's finding that there are a range of matters regarding alleged management failure that are new matters not contemplated in the IEG or the 14 September 2023 additional information. [92] I agree it was reasonable for the decision-maker to determine that new matters not within the combined operation of the LAD and 14 September 2023 internal review request were not within the remit of the internal review. Reference to an appeal under different legislation with a different respondent does not persuade me otherwise. This appeal ground has not been made out. Reason 16: The alleged conflict of interest [93] The decision-maker determined there was no perceived or actual conflict of interest for the local action decision-maker in determining the IEG and issuing the LAD. Further, the action taken was in the Respondent's submission reasonable based on Mr Goodfellow's reasonable view that the issues in the initial IEG had been effectively resolved. The Appellant argues the continued failure of the local action decision-maker to address the ongoing adverse treatment brought to his attention created the alleged conflict – that it would not be in his interests to consider the full scope of the alleged conduct as this would also highlight his failings as a manager. [94] While I understand the argument being made by the Appellant, the time to make that argument was the point at which she was advised the matter, including the 14 September material, was being referred back to the region for LAD. [95] To raise that issue for the first time on 5 December 2023 in the internal review request was too late for this to be a persuasive reason for appeal of the internal review decision. Particularly, as the Appellant addresses, the LAD was confined to the steps taken and views formed as part of the original local management action in 2022. [96] Further, I do not accept the Appellant's submission that the referral of this material by the decision-maker to a fresh local decision-maker confirms the conflict of interest existed at the time of the LAD. In the Commission's view, it confirms the 14 September material which the Appellant was advised would be considered as part of the finalisation of the IEG but ultimately was not – was a matter requiring rectification. It also acknowledges that the Appellant had since raised an alleged conflict for Mr Goodfellow that was before the decision-maker. It would have been extraordinary if the decision- maker had referred that material back to Mr Goodfellow in those circumstances. This appeal ground has not been made out. Conclusion -- 33 of 35 -- 34 [97] On any objective review it would be reasonable to conclude that the progress of Ms Egan's IEG was less than optimal. As outlined above, the process issues go far beyond the failure of the local action decision-maker in issuing a LAD 14 months after the Grievance was lodged. [98] The issues go to lengthy delays and process U-turns, an unfairly narrow view of the matters to be addressed, local action confined substantially to one facilitated meeting, disproportionate weight given to the Appellant's delay in advising the local action had not resolved the grievance, and a failure to address the ongoing issues. [99] Due to the process issues identified, I have not needed to consider the particular findings of the decision-maker as they related to her review of the individual operational decisions. Nor have I made alternate determinations in relation to the upholding of the conduct findings of the local decision-maker. Instead, I have found that significant aspects of the internal review decision were not fair and reasonable having regard to procedural fairness. This means the internal review decision subject to this appeal must be set aside. [100] However, I do not see any value in simply returning this matter to the decision-maker or yet another local action decision-maker. The Appellant and the Principal no longer work in the same school. Compassionate transfer was approved for the Appellant, and I understand she is working in a role at her substantive level but that the position may or may not be ongoing. If the arrangement is not permanent, I would recommend the Department prioritise active support for the Appellant to find a suitable permanent role at that level. [101] In submissions, the Appellant has indicated an ongoing interest in ensuring the September 14 issues are investigated and addressed, and the Respondent acknowledges they are yet to be investigated, subject to the outcome of this appeal. [102] These matters warrant formal investigation by an external investigator reporting to an appropriate Senior Executive delegate within the Department (not region). The delegate should be a person who has not previously been involved in consideration of the IEG or internal review. The conduct of the workplace investigation is to comply with the requirements of the Workplace Investigations Directive 01/24 and the Public Sector Commission Managing Workplace Investigations Guide. [103] The scope of the investigation should be finalised in consultation with the Appellant and her union (if nominated by the Appellant) to ensure it encompasses all matters relevant to the investigation. [104] I order accordingly. -- 34 of 35 -- 35 Order 1. That pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision is set aside, and replaced with the following decision: 2. A formal investigation by an external investigator is to be conducted into the matters raised in the September 14 material. The matters are to be referred to an appropriate Senior Executive delegate within the Department, who is a person who has not previously been involved in consideration of the IEG or internal review. The conduct of the workplace investigation is to comply with the requirements of the Workplace Investigations Directive 01/24 and the Public Sector Commission Managing Workplace Investigations Guide. The scope of the investigation should be finalised in consultation with the Appellant and her union (if nominated by the Appellant) to ensure it encompasses all matters relevant to the investigation. -- 35 of 35 --