Carson v State of Queensland (Department of Environment and Science) [2022] QIRC 307

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Carson v State of Queensland (Department of Environment and Science) [2022] QIRC 307 PARTIES: Carson, Jennifer Rose (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) CASE NO.: PSA/2022/310 PROCEEDING: Public Service Appeal – Disciplinary Decision DELIVERED ON: 9 August 2022 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – allegations substantiated – consideration of penalty – penalty imposed was fair and reasonable. LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 187, 188 and 194 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 Coleman v State of Queensland (Department of Education) [2020] QIRC 032 Gilmour v Waddell & Ors [2019] QSC 170 -- 1 of 9 -- 2 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24 Power v State of Queensland (Department of State Development Tourism and Innovation) [2021] QIRC 053 Reasons for Decision Introduction [1] Ms Jennifer Rose Carson ('the Appellant') is employed by the State of Queensland (Department of Environment and Science) ('the Respondent') in the position of OO3(3) Ranger (Indigenous Identified) in Lake Eacham in North Queensland. [2] On 19 January 2022, Mr James Newman, Executive Director, Northern Parks and Forests Regional Operations, Queensland Parks and Wildlife Service ('the decision maker'), issued a notice to show cause ('NTSC') to the Appellant, requesting the Appellant show cause within 14 calendar days, on the following allegation: On Friday, 9 July 2021 you stole money to the value of $700 from your colleagues Themi Graham, Ranger and Stuart Russell, Ranger, which was left in a departmental vehicle. [3] The particulars which underpin the above allegation was outlined in the NTSC as follow: I understand you have recently been found not guilty by the Magistrates Court in Atherton in relation to two charges of stealing under the criminal code. The Queensland Public Service, however, has a different standard of proof for discipline matters, that being 'on the balance of probabilities'. The department is therefore able to put the allegation of theft to you for response, particularly as it is alleged to have occurred during work. … Particulars a) On Friday, 9 July 2021 Mr Graham, Mr Russell and you were tasked with servicing Lake Eacham, Curtain Fig, Lake Barrine and Malanda Falls. b) After lunch, at Malanda Falls, Mr Graham and Mr Russell took a blower each to service the Turtle Viewing and Tulip Oak tracks. c) During this time, Mr Graham and Mr Russell had left their possessions, including their wallets, in the vehicle. d) You stayed back with the vehicle and had possession of the keys for the vehicle. with no specific tasks to undertake at this location. e) You locked the vehicle when you needed to leave the vehicle. f) Once finished their tasks, Mr Graham and Mr Russell returned to the vehicle, with Mr Russell returning first and needing to have the vehicle unlocked by you. g) As that was the final location for the day, you all then returned to base and unloaded the vehicle. -- 2 of 9 -- 3 h) Once you had gone to the office, Mr Graham and Mr Russell checked their wallets and noticed that cash was missing, to the total value of $700 ($50 from Mr Russell's wallet and $650 from Mr Graham's wallet). [4] On 1 February 2022, a response to the NTSC was provided by the Appellant's solicitors. [5] On 7 February 2022, a disciplinary finding decision was issued by the decision maker to the Appellant, advising that the allegation has been substantiated. The decision maker further advised that grounds exist for discipline pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld) ('the PS Act') and that serious consideration was being given to impose a disciplinary penalty of a reduction in increment from OO3(3) to OO3(2) for a period of 12 months. The Appellant was provided with seven calendar days to respond to the proposed disciplinary action. [6] On 8 February 2022, the Appellant provided a response to the disciplinary finding decision. [7] By letter dated 17 February 2022, the decision maker informed the Appellant of the decision to impose a disciplinary action of a reduction in increment from OO3(3) to OO3(2) for a period of 12 months, pursuant to s 188 of the PS Act. [8] By appeal notice filed on 23 February 2022, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the PS Act. Appeal principles [9] The appeal must be decided by reviewing the decision appealed against.1 Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under chapter 11, part 6, division 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [10] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision to impose the disciplinary action of a reduction in increment from OO3(3) to OO3(2) for a period of 12 months was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [11] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 9 -- 4 (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of Appeal [12] In the appeal notice, the Appellant outlines the following reasons for appeal: It is not fair and reasonable to give me disciplinary action because: - I am not guilty and have been found not guilty by a court of law - the charges were literally thrown out because there is no evidence. - On the balance of probabilities, I am innocent: - I am 37 years old with no history of dishonesty. It simply does not make sense and is highly improbable that I would start petty crime at this point in my life. - I offered for the people accusing me of theft to search my car and backpack so they could be sure I did not steal the money. It is highly improbable that I would make that offer if I had stolen the money. - The complainants elected not to search my car and backpack. It is highly probable they chose to do this because they were making false accusations and knew they would not find anything. There is no evidence whatsoever that I stole money except for the statements from two colleagues There are a number of inconsistencies and highly improbable factors within their statements as follows: - It is highly improbable and unreasonable for a person to carry $600 cash in their wallet and leave it in an unsecured vehicle all day. - Each of the complainants said they both checked their wallet at the same time at Malanda Falls, they did not buy anything at Malanda Falls, so why did they both check their wallets? - It is improbable that a reasonable person would check their wallet, confirm there is $600 in it, and then leave it in an unlocked work vehicle. - it is unreasonable to accuse or discipline a work colleague for stealing money, with no evidence, when the colleagues left their money in an unsecured car - In the entire time I had worked at the Eacham Ranger Base, I had never been given the keys to the car, except for this one occasion at Malanda Falls. It is probable that the two complainants gave me the keys on this occasion so they could frame me for theft. It indicates theirt (sic) claims are vexacious (sic). Appellant's submissions [13] The Appellant submits that she was found not guilty by a Magistrate on all charges against her and the only evidence presented was the testimony of the two complainants, which was found to be not credible, inconsistent and unreliable. Further, there was no other evidence, such as video surveillance, eye-witness testimony or fingerprints. The Appellant submits that the Respondent should not discipline the Appellant for something for which she has been found not guilty when the Respondent is relying solely upon testimony that the Magistrates Court found to be not credible, inconsistent and unreliable. [14] The Appellant submits that the Respondent 'completely disregards' the Appellant's responses to the NTSC, which included the following: a. I am being victimised by the complainants. b. I offered for the complainants to check my car and backpack for the allegedly stolen money because I had nothing to hide. -- 4 of 9 -- 5 c. The statements provided by the complainants were inconsistent: first it was claimed that $450 went missing, and that amount was later increased to $650. They also contradicted themselves making statements in the magistrates court. d. It is a very long bow to draw to claim that I, who has been self-sufficient for all my working life and has been a responsible employee throughout my working career would, at the age of 37, turn to petty crime. e. There is no evidence against me. f. When the matter was raised with me by my superiors I made a full and frank disclosure and cooperated in every way. g. I was found not guilty in the magistrates court. h. It is unusual for someone to carry cash on their person, particularly the amount alleged by one of the complainants. [15] The Appellant submits that no reasonable justification was provided for the disciplinary action decision. The Appellant submits that the decision maker did not reasonably consider the evidence that has been put before him and gave no reasonable justification for proceeding with the disciplinary action. [16] The Appellant submits that the disciplinary process was tokenistic as only a 'perfunctory or symbolic effort was made in order to give the appearance that the process had been undertaken correctly'. The Appellant submits that the Appellant's responses were not carefully considered which is evident in the responses of the decision maker which lacked any meaningful analysis or considerations of the large amount of evidence that was provided. [17] The Appellant submits that procedural fairness was not applied in the decision making as it is evident that the decision maker placed more weight on the statements of the complainants. The Appellant further submits that this indicates the existence of bias as well as the unwillingness to consider the evidence. Respondent's submissions [18] The Respondent submits that the Appellant's contention that she should not be disciplined for 'something that I have been found not guilty of' is misconceived. The Respondent submits that the decision maker is not bound by the decision of a court in criminal proceedings, and it was reasonably open for the decision maker to make a finding that the allegation against the Appellant was substantiated. The Respondent notes the following: i. The assessment of the allegation against Ms Carson in the criminal proceeding was on the basis of 'beyond reasonable doubt'. This requires proof by a preponderance of the evidence or proof by clear and convincing evidence. ii. The delegate's consideration of disciplinary matters was on the balance of probabilities which is the standard proof in civil matters and requires that the accepted version is the most probable version of the events. iii. The application of the civil standard of proof has been extensively considered by courts with the application of the Briginshaw principle. For the reasons detailed in the discipline correspondence…, the Respondent submits that the delegate gave appropriate consideration to the seriousness of the allegation, the inherent likelihood (or unlikelihood) of the allegation, the available evidence and the gravity of consequences in determining the allegation against the Appellant to be substantiated. iv. The delegate was reasonably entitled to rely on the information before them in making the discipline finding and determining the discipline action; the delegate was not required to -- 5 of 9 -- 6 prefer the Appellant's account of the criminal proceedings in assessing the information before them. [19] The Respondent refutes the Appellant's submission that the decision maker failed to give due consideration to the Appellant's responses. The Respondent submits that the decision maker was not required to expressly articulate every consideration, but rather ensure that sufficient information was provided to explain the conclusions reached.5 The Respondent submits that the decision maker's consideration of the Appellant's submission is set out in the letters dated 7 February 2022 and 17 February 2022 and further notes the following: i. The appellant's assertions that she is being 'victimised' by the complaints was based solely on their raising of the theft allegations. ii. The delegate was entitled to prefer the testimony of the complainants in assessing the information before them. i. Ms Carson's response to the first show cause notice relied on the assertion that the theft occurred at an earlier time than that stated by the complainants. The trip started from Lake Eacham and stopped at the Curtain Fig, Lake Barrine and Malanda Falls in that order. ii. Both complainants advised that they had used their wallets at a stop at Lake Barrine before travelling to Malanda Falls where Ms Carson locked the vehicle and remained with the vehicle with the keys during that stop while the complaints (sic) conducted maintenance work at that location. They stated that the amount of cash in their wallets was as expected in the stop at Lake Barrine but was missing money after the Malanda Falls stop. iii. The delegate considered that the complainant's version was on the balance of probabilities the more probable version of the events and considered the allegation to be substantiated. [20] The Respondent notes that, in making a disciplinary action decision, the decision maker was not required to reassess factors relevant to their decision to substantiate the allegation. [21] The Respondent submits that the Appellant's submission that she was not afforded procedural fairness because the decision maker preferred the evidence of the complainants is misconceived. The Respondent submits that where conflicting information exists, it is incumbent upon the decision maker to consider both/each version and it was open to the decision maker to prefer a particular version. The Respondent submits that such a decision does not render the process procedurally unfair. Consideration [22] Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(b) of the PS Act. [23] It should firstly be noted that it was open to the Appellant to appeal the decision to substantiate the allegation within 21 days of receipt of that decision dated 7 February 2022. The decision that is the subject of this appeal is the disciplinary action imposed following substantiation of the allegation dated 17 February 2022. Whilst the allegation 5 citing Power v State of Queensland (Department of State Development Tourism and Innovation) [2021] QIRC 053. -- 6 of 9 -- 7 and disciplinary finding may form part of the consideration as to whether the disciplinary action is fair and reasonable, in most circumstances the initial decision to substantiate an allegation will not be disturbed in an appeal of this kind. [24] After consideration of all the material before me, I am not persuaded that the substantiation of the allegation and disciplinary finding was not fair and reasonable. The substantiated allegation was that on 9 July 2021, the Appellant stole money from two colleagues which had been left in a department vehicle. [25] The Appellant's submissions rely substantially upon the Magistrates Court's decision in her matter. The Respondent is not compelled to follow a determination in a court considering different legislation and a different standard of proof when considering the allegation. The Respondent's assessment of the allegation on the balance of probabilities required them to accept the version of events that was the most probable in the circumstances. The decision maker was not required to be satisfied beyond reasonable doubt as was the case for the Magistrate in the criminal proceedings. [26] The Appellant submits that the complainants in this matter were 'vexatious' and suggests that they had conspired to 'frame' her. The Appellant provides no reasons as to why the two complainants would engage in this conduct and there is no evidence of any history of tension between the parties. It was open to the decision maker to determine that any allegations of victimisation only emerged after the complaint was made relating to the theft of money and hence was not persuasive. I accept that the decision letter could have provided a more expansive consideration of the Appellant's submissions, however I note that the decision maker is not required to address every consideration.6 The decision maker is required to explain the reasons for the decision and, in my view, that has occurred in this matter. [27] The Respondent gave appropriate consideration to the principles of Briginshaw,7 by considering the seriousness of the allegation, the inherent likelihood of the allegation, the available evidence and the gravity of consequences if the allegation is substantiated. It was open to the decision maker to accept the evidence of the two complainants who made the allegation of theft as being the most probable version of what had occurred. After the decision maker was satisfied that the conduct had been substantiated, it was open to them to determine that the conduct was in contravention of s 187(1)(b) of the PS Act. [28] Section 187(1)(b) of the PS Act provides that a public service employee may be disciplined if the chief executive is reasonably satisfied that the employee is guilty of misconduct. Section 187(4) provides that misconduct to mean, inter alia, 'inappropriate or improper conduct in an official capacity'. 6 Minister for Aboriginal Affairs v Peko-Wallsend Ltd [1986] HCA 40; (1986) 162 CLR 24. 7 Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336. -- 7 of 9 -- 8 [29] In Coleman v State of Queensland (Department of Education),8 Deputy President Merrell opined the following with respect to the definition of misconduct as contained in s 187(4)(a) of the PS Act: In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.9 [30] The substantiated allegation refers to an action that is clearly a deliberate departure from accepted standards in that it involved theft. It was, therefore, open to the decision maker to determine that the allegation constitutes misconduct. [31] The Appellant submits that she was not provided procedural fairness because her responses were not properly considered as demonstrated by the decision maker's decision to accept the evidence of the complainant employees. There is no evidence that the Appellant was denied procedural fairness, with the Appellant provided an opportunity to respond to both the proposed disciplinary finding and the disciplinary action. The fact that the Appellant's responses were not accepted does not mean they were not considered. Ultimately, the decision maker considered the evidence provided by the Appellant and that of the complainants and determined that, on the balance of probabilities, the evidence of the Appellant was not preferred. [32] Following the decision to substantiate the allegation, the Respondent made the decision to impose the disciplinary action of a temporary reduction in increment from OO3(3) to OO3(2) for 12 months. Although the Appellant clearly objects to the substantiation of the allegation, no submissions were made as to the appropriateness of the disciplinary action. In the absence of any submissions on this point, and in consideration of the serious nature of the disciplinary finding, I am satisfied that this action is appropriate given the disciplinary finding. [33] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:10 The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances. The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.11 [34] Applying the principles outlined above, I do not consider that the decision to impose a reduction in increment from OO3(3) to OO3(2) for a period of 12 months lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct. 8 [2020] QIRC 032. 9 Ibid [62]. 10 [2019] QSC 170. 11 Ibid [207]-[209]. -- 8 of 9 -- 9 [35] Based on the information before me, I am satisfied that the decision to impose a disciplinary action of a reduction in increment from OO3(3) to OO3(2) for a period of 12 months is fair and reasonable in the circumstances. Order [36] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. -- 9 of 9 --