Brown v TAFE Queensland [2024] QIRC 15

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: PARTIES: CASE NO: PROCEEDING: DELIVERED ON: HEARING DATE: MEMBER: HEARD AT: Brown v TAFE Queensland [2024] QIRC 15 Brown, Trevor (Appellant) v TAFE Queensland (Respondent) PSA/2023/212 Public Sector Appeal – Appeal against a discipline finding decision 18 January 2024 18 January 2024 Dwyer IC Brisbane ORDER: 1. The decision appealed against is confirmed. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding decision – appellant accused of engaging in inappropriate and/or disrespectful conduct – appellant accused of improper and/or unethical conduct by servicing vehicles during ordinary working hours for personal gain and/or benefit – appellant accused of failing to maintain adequate supervision and/or leaving students unattended for extended periods of time – whether the appellant engaged in the conduct subject of the allegations – where the allegations can be substantiated – where the chief executive can -- 1 of 8 -- 2 be reasonably satisfied disciplinary grounds have been established – where the disciplinary finding was fair and reasonable - decision appealed against confirmed LEGISLATION: Industrial Relations Act 2016 (Qld), s 526B, s 562C CASES: Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. APPEARANCES: The appellant appeared on his own behalf. Mr W. Davey for the respondent. Reasons for Decision (delivered ex tempore) Introduction and background [1] Mr Trevor Brown is employed by TAFE Queensland ('TAFE') ('the respondent') as a Leading Vocational Teacher in Hervey Bay. Mr Brown has been employed by the respondent since approximately 2001 and in teaching more generally since 1990. [2] In August 2023, Mr Brown was subject to a show cause process which arose in the context of three allegations, namely:  Allegation 1, that on 20 of July 2023, Mr Brown engaged in inappropriate and/or disrespectful conduct towards his manager;  Allegation 2, that in July 2023, Mr Brown engaged in improper and/or unethical conduct by servicing vehicles during ordinary working hours for personal gain and/or benefit; and  Allegation 3, that in July 2023, Mr Brown failed to maintain adequate supervision, and/or left students of Certificate II automotive course unattended for extended periods of time. [3] Mr Brown provided his responses to the allegations in correspondence dated 4 September 2023. In essence, Mr Brown conceded parts of Allegations 1 and 2, but denied Allegation 3 in its entirety. The details of Mr Brown’s response are discussed more fully later in these reasons. -- 2 of 8 -- 3 [4] Following Mr Brown’s response, Mr Mark Riley, General Manager, TAFE, East Coast Region, advised Mr Brown in correspondence dated 2 November 2023 that each of the allegations were substantiated ('the decision'). [5] By Appeal Notice filed 7 November 2023, Mr Brown appealed the decision. Relevant legislative provisions [6] Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides the Commission with jurisdiction to deal with public sector appeals. [7] Section 562B of the IR Act provides the Commission must decide an appeal by reviewing the decision appealed against. A review is not a fresh hearing of the matter.1 The function of the Commission in reviewing a decision is to determine if the decision is fair and reasonable.2 [8] Section 562C of the IR Act relevantly prescribes the types of orders that the Commission can make. In deciding this appeal, s 562C(1) of the IR Act provides that Commission may: (a) confirm the decision appealed against; or (b) …; 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. … Submissions [9] Following the Directions Order issued on the 27 November 2023, the parties filed extensive written submissions addressing the matters in contention between them. A hearing of the matter was subsequently scheduled to allow the parties to speak to their submissions and for the Commission to better inform itself of the matters in contest. [10] Having reviewed the written submissions, it was immediately apparent to the Commission that certain critically important documents had not been included in the respondent’s material. 1 Industrial Relations Act 2016 (Qld) s562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 2 Industrial Relations Act 2016 (Qld) s 562B(3). -- 3 of 8 -- 4 [11] At the hearing of the matter, it was confirmed the documents that had accompanied the show cause letter provided to Mr Brown on 21 August 2023 had not been included in the material filed by the respondent. It can only be assumed this was an oversight, given the show cause letter dated 21 August 2023 itself was provided amongst the filed material. The hearing was briefly adjourned and the representative for the respondent was able to forward the attachments that had accompanied the show cause letter to the Commission for its consideration. [12] With one exception, Mr Brown had previously been provided with the attachments sent to the Commission during the hearing. Additionally, the respondent also provided a file note recording a formal interview conducted by TAFE Queensland staff with Ms Jody Ridgeway. Mr Brown was also provided with a copy of that file note and had an opportunity while the matter was stood down to consider it.3 The relevance of that file note will be discussed later in these reasons. [13] The parties’ extensive written submissions and the subsequently supplied attachments that are now Exhibit 1 were considered by the Commission. They will not be reproduced in these reasons, save for the salient portions referred to in the consideration that follows. Consideration [14] In a matter of this type, the question of whether a decision is fair and reasonable will typically involve consideration of the information available to the decision maker at the time of making their decision, and whether it was sufficient to support the conclusions that they have reached in their decision. [15] In this review, the Commission has had an opportunity to carefully consider the evidence said to support the findings and to discuss that evidence with the parties directly at the hearing. Each of the three allegations have been considered separately. Allegation 1 [16] In relation to Allegation 1, it is noted that Mr Brown’s show cause response included admissions to conduct that was plainly inappropriate or disrespectful. At the hearing of the matter, Mr Brown was invited to concede his appeal with respect to Allegation 1, which he quite properly did. [17] It ought to be clearly noted however, that Mr Brown does not concede all the language and actions that make up the particulars of Allegation 1. Further, to the extent Mr Brown has conceded his conduct was inappropriate, he asserts that it arises in the context of compelling mitigating factors. The concessions by Mr Brown do not prevent him from 3 The documents comprising the attachments to the show cause letter and the file note were received by the Commission and were entered into evidence and collectively marked as Exhibit 1. -- 4 of 8 -- 5 relying on those mitigating factors when he later responds to the respondent during the next stage of the show cause process. [18] In the circumstances of Mr Brown’s concession, it is not necessary to further consider Allegation 1, though for completeness, it ought to be added that even if there was no concession, Allegation 1 was plainly capable of substantiation when one has regard to Mr Brown’s responses. Allegation 2 [19] Allegation 2 is somewhat complex. It is helpful to reduce Allegation 2 into separate elements. The essence of Allegation 2 is that Mr Brown engaged in improper and/or unethical conduct. [20] The manner in which Mr Brown is said to have done this is:  by servicing vehicles during ordinary hours of duty, and  doing so for personal gain or benefit. [21] The factual setting for this allegation is that Mr Brown serviced a private vehicle on the 20 July 2023 during work hours and received cash payment for the work. [22] Mr Brown does not contest these facts but says that:  servicing a private vehicle during work hours is a routine feature of the curriculum known as 'live work';  it was done to provide practical instruction to students;  he had permission to do this from Ms Jody Ridgeway; and  the money received by him was merely reimbursement for products that he had purchased himself and used in the servicing of the vehicle. [23] Having regard to the two elements of the allegation, it is clear the substantiation of either or both those elements would satisfy the allegation of improper or unethical conduct, subject to the merits of Mr Brown’s explanation. [24] With respect to the first element i.e., conducting the service during work hours, Mr Brown has said this was 'live work' authorised by Ms Ridgeway. In the findings set out in the decision, Mr Riley states in response to this that "local management inquiries did not provide evidence to support your assertion". -- 5 of 8 -- 6 [25] Following the request for evidence to support this finding at the hearing of this matter, the respondents produced the file note of the meeting between investigators and Ms Ridgeway.4 [26] Having regard to the answers provided by Ms Ridgeway that are revealed in the file note, it is clearly anything but a rejection of Mr Brown’s contention. While Ms Ridgeway unequivocally rejects granting permission to receive payment for live work, she falls well short in her answers of denying knowledge or approval of the practice of live work, even if approval was only tacit. [27] Beyond speaking to Ms Ridgeway, it appears that the respondent made no other inquiries about whether the practice of live work (regardless of payment) is still a routine practice at TAFE. It is noted Mr Brown now contends he can provide names of other teachers who perform this work (but he has never offered to do so previously). [28] All in all, it seems the evidence around whether the practice of live work is ongoing as alleged by Mr Brown is still a little unclear. [29] Additionally, there are conflicting accounts from witnesses as to whether the service of the vehicle on 20 July 2023 was done with or without the involvement of students. In the event of the facts ultimately establishing the latter i.e. without the involvement of students, it would be difficult for Mr Brown to explain his conduct as legitimate. [30] Overall, if the allegation in this instance was simply that Mr Brown had serviced a car during working hours, it could be confidently concluded in this appeal that there is insufficient evidence (at this time) to substantiate that allegation. [31] But in this matter, there is more to this allegation than just performing the service during working hours. [32] Allegation 2 also includes an element alleging that Mr Brown received a cash payment for performing the service to the vehicle. Again, Mr Brown does not deny this. Further, the owner of the vehicle has confirmed (in writing) that she paid Mr Brown somewhere between $260 and $270 in cash in return for the service. [33] It is uncontroversial in this matter that Mr Brown did not disclose this payment until confronted with the allegation in the show cause process. His response was that the payment was to cover the costs of parts and products used to service the vehicle and which he says he supplied and brought in from home. 4 See Exhibit 1. -- 6 of 8 -- 7 [34] When questioned by the Commission at the hearing of this matter, Mr Brown submitted that the $260 that he received was, approximately, a dollar-for-dollar reimbursement for the costs of the parts that he supplied. Further Mr Brown submitted at hearing that, if necessary, he could provide some documentary evidence to reconcile the payment with his expenditure. [35] With respect to Mr Brown’s offer to produce documentary evidence to reconcile the transaction, it is noted that Mr Brown has never attempted to do this previously. Given the allegation was communicated to him a little over a month after the incident in question, it is curious he did not make this offer at that time. Mr Brown would have been under no illusion that it was a serious allegation. One would expect that August 2023 was the occasion where he would have been best placed to produce the necessary documents. [36] Mr Brown’s failure to be fully transparent about the cash payment is problematic. What can confidently be concluded on the established facts is that Mr Brown received approximately $260 after servicing a private vehicle during work time. While his explanation for the payment is not implausible, the difficulty for Mr Brown is that his explanation has not been as robust as it possibly could have been when asked about this matter much earlier. [37] In those circumstances, the substantiation of Allegation 2 by the decision maker is not, in the Commission’s view, outside the realms of reasonableness, and certainly not unfair. Mr Brown may yet provide compelling evidence to reconcile the payment he received, but at this time the Commission is concerned only with the matters available to the decision-maker at the time of making his decision. Allegation 3 [38] Allegation 3 is founded in a series of comments made by students during discussions with investigators when they were being questioned about Allegations 1 and 2. The attachments that were supplied by the respondent during the hearing today include file notes of those discussions.5 [39] The file notes variously record at least 5 – 6 students reporting that Mr Brown:  leaves them unattended;  leaves them alone in the classroom;  in a 90-minute class, Mr Brown came in twice, but was then gone for an hour;  was servicing a car while the students worked on theory; 5 See Exhibit 1. -- 7 of 8 -- 8  left the students to work on theory while he worked on a car; and  left the students alone for most of the day. [40] At this stage in the disciplinary process, the Commission is not concerned with whether the allegations can be proven to the requisite standard. The singular focus is whether the evidence available to the decision maker was sufficient to support a conclusion that the allegation is substantiated. [41] In this instance, while noting that the evidence of the students is in a very rudimentary and untested form, there is a common theme evident in the account provided by a number of students. This, of itself, is compelling and in the Commission’s view, it is sufficient to support a finding that the allegation is substantiated. However, a more robust body of evidence from the students would be necessary if it was to be relied on to justify e.g. termination of employment. Conclusion [42] In all the circumstances, and noting the concession made by Mr Brown in relation to Allegation 1, I find the decision in respect of all three allegations was fair and reasonable. [43] Noting no final determination has been made with respect to a penalty, it is prudent to add that each party should carefully consider the Commission’s evaluation of the evidence set out in these reasons before proceeding to impose a penalty, especially one as serious as termination of employment. [44] To be clear, the allegations Mr Brown faces are potentially quite serious and worthy of the sanction of termination if proven, both collectively or individually. These reasons should not be construed as an indication that either party cannot successfully prove or defend the allegations, but there is work to be done on both sides before any final determination is made. Order [45] The Commission makes the following order: 1. The decision appealed against is confirmed. -- 8 of 8 --