Berry v Queensland Museum Network [2022] QIRC 248

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Berry v Queensland Museum Network [2022] QIRC 248 PARTIES: Berry, Ian (Appellant) v Queensland Museum Network (Respondent) CASE NO.: PSA/2021/385 PROCEEDING: Public Service Appeal – Fair Treatment Decision DELIVERED ON: 27 June 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 – where individual employee grievance lodged in accordance with Directive 11/20 - Individual employee grievances – where Appellant was dissatisfied with the stage 1 local action decision and lodged a stage 2 internal review – where Appellant dissatisfied with the internal review decision – whether the internal review decision was fair and reasonable – internal review decision fair and reasonable LEGISLATION: Criminal Code Act 1899 (Qld) Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ch 7 CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 -- 1 of 10 -- 2 Eiser v State of Queensland (Queensland Health) [2021] QIRC 191 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision Introduction [1] Mr Ian Berry ('the Appellant') is employed as a permanent TO3, Senior Museum Technician with the Queensland Museum Network ('the Respondent'). [2] On 12 August 2021, the Appellant lodged an individual employee grievance against the Appellant's supervisor, Mr Dan Houweling, TO4 Head, Exhibition Workshop, raising allegations with respect to the conduct of Mr Houweling towards the Appellant. [3] On 20 August 2021, Ms Natalie Blackwell, Manager, Human Resources and Organisational Development, advised the Appellant that his grievance provided allegations of workplace conduct issues and was being treated in accordance with the Conduct and Performance Excellence Framework ('CaPE Framework'). [4] On 16 August 2021, Ms Patrice Fogarty, A/Director, Public Engagement, who was appointed as delegate for the matter, determined the matter to be category 2 within the CaPE Framework, being that the grievance alleged conduct that is inconsistent with the conduct standards expected of a public sector employee. [5] Subsequent to obtaining further information from Mr Houweling, on 1 September 2021, Ms Fogarty determined the matter remain as category 2 and that the matter be addressed through remedial workplace action. [6] On 27 September 2021, the Appellant was provided with a letter dated 8 September 2021 outlining the outcome of the grievance lodged. [7] On 8 October 2021, the Appellant lodged an internal review request to Dr Jim Thompson, Chief Executive Officer, and a decision on the internal review request was subsequently provided to the Appellant on 22 October 2021. [8] By appeal notice filed in the Queensland Industrial Relations Commission, the Appellant appealed against the internal review decision of Dr Thompson, pursuant to ch 7 of the Public Service Act 2008 (Qld). -- 2 of 10 -- 3 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 ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [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 internal review decision of Dr Thompson dated 22 October 2021 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 (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 outlined the following reasons for appeal: … I am submitting this appeal as I do not believe the decision issued was fair nor reasonable under section 194(1)(eb) of the PSA. I am dissatisfied with the outcome of the internal review process as listed in the letter dated 22 October 2021. In his decision, Mr Thompson failed to outline the actions taken to review the decision made through local action and also failed to outline the reasons for his decision, or the decision to take no further action as is required in clauses 9.2(h)(i) and (ii) of Directive 11/20 – Individual employee grievances (Directive 11/20). Due to this failure, I am seeking the following outcome: - External independent review of concerns raised in initial grievance and internal review processes; - Confirmation of a safe system of work upon my return to the workplace. 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 Public Service Act 2008 (Qld). 4 IR Act s 562B(3). -- 3 of 10 -- 4 Relevant provisions of Directive 11/20 - Individual employee grievances [13] Clause 9.2 of Directive 11/20 - Individual employee grievances ('the Directive') provides for stage 2 internal review of a local action decision: 9.2 Stage 2–internal review (a) If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review. … (d) An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances. (e) If the chief executive or delegate is satisfied that: (i) the reasons for seeking an internal review are insufficient (ii) the request for internal review is frivolous or vexatious, or (iii) the employee has unreasonably refused to participate in local action to resolve the individual employee grievance the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h). (f) A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless: (i) 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 (ii) where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance. … (h) At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must: (i) outline the action taken to review the decision made through local action (ii) outline the reasons for the decision, or the decision to take no further action (iii) outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and (iv) outline any avenues of external review that may be available to the employee, including any relevant timeframes. [14] Clause 9.3 of the Directive provides for stage 3 external review: 9.3 Stage 3–external review (a) If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include: (i) a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act … -- 4 of 10 -- 5 Respondent's submissions [15] The Respondent outlined a chronology of events regarding the grievance process in its submissions. With respect to the internal review decision, the Respondent submits that the information provided to the Appellant was sufficient to enable the Appellant to understand the actions undertaken by Dr Thompson in reviewing Ms Fogarty's decision and the reasons for his decision. The Respondent submits that Dr Thompson: (a) provided the Appellant the actions undertaken in reviewing the original decision and outlined the reasons for his decision; (b) advised the Appellant in conducting the internal review that his role was to consider whether the actions or decisions that the Appellant had complained of were unfair or unreasonable, and to assess whether the actions and decisions were reasonably open to Ms Fogarty based on the information available to her at the time; (c) outlined in the internal review response his assessment and determination of Ms Fogarty's original determination of the matter; (d) acknowledged the Appellant's dissatisfaction with the outcome of the matter. Notwithstanding where a conduct matter is raised, responsibility for managing the matter rests with the Respondent, subject to any relevant legislative provisions or provisions of a directive; (e) advised the Appellant that Ms Fogarty's role as delegate was to assess and determine the matter under the Directive, the CaPE Framework and relevant legislative instruments which included providing directions relating to future actions; (f) restated Ms Fogarty's determination of the matter was to undertake remedial workplace action; (g) advised the Appellant that he considered Ms Fogarty's determination of the matter was based on careful consideration of the seriousness of the alleged conduct, the information gathered through management enquiry and natural justice mechanisms and consequently, the most appropriate way to resolve the matter; (h) confirmed Ms Fogarty had advised the Appellant that no formal action would be taken, meaning that Ms Fogarty determined not to undertake disciplinary action; (i) reiterated that Ms Fogarty had advised the Appellant of her reasoning in that she considered the alleged conduct was behaviour/conduct which was inconsistent with the conduct standards expected of a public sector employee; (j) confirmed Ms Fogarty did not determine the matter as assault under the Criminal Code Act 1899 (Qld); (k) noted Ms Fogarty had made no decision to transfer Mr Houweling from the position of Head of Exhibitions Workshop, and Exhibition Services; -- 5 of 10 -- 6 (l) restated the intent of undertaking a facilitated discussion was to provide both parties the opportunity to rebuild trust where there has been hurt; and (m) determined the actions and decisions of Ms Fogarty were reasonably open to her in the circumstances, based on the information available to her at the time. [16] The Respondent refutes the Appellant's assertion that Dr Thompson made the decision to take no further action in accordance with the Directive. The Respondent submits all correspondence provided the Appellant the decision, reasons and future actions. [17] The Respondent further submits that the Appellant was not provided information relating to the actions the Respondent took with regard to considering the substantiation of the allegations raised against Mr Houweling as it would be unreasonable and a breach of privacy to provide the Appellant information relating to these outcomes and associated evidence. Appellant's submissions [18] In response to the Respondent's submissions, the Appellant submits, in summary, that: (a) the Directive outlines a clear procedure for managing and resolving individual employee grievances and the internal review outcome letter merely states that the decision made through local action was fair and reasonable; (b) Dr Thompson provided no reasons to explain upon what basis he had come to those conclusion as outlined in his decision. Dr Thompson's decision only outlined the considerations of Ms Fogarty in her reaching her original decision regarding the grievance submitted and provides no clarity as to how he came to his conclusions; (c) at no point in the internal review decision is there evidence that Dr Thompson has undertaken an independent and unbiased review of the process followed and decision made by Ms Fogarty. This does not adhere to the obligations found at cls 9.2(h)(i) and (ii) of the Directive, rendering the decision flawed; (d) the decisions, or lack therefore, provided to the Appellant throughout the grievance process fails to articulate what the relevant facts were, how the review was undertaken and fails to explain how the conclusions were drawn. The paucity of reasoning afforded is so inadequate that the Appellant is concerned that rights of appeal are rendered meaningless, and that he is left with a sense of grievance that his concerns have not been properly considered which would be an unfair and unreasonable outcome; (e) as a result of the failure to provide reasons for upholding the decision made at local level, the Appellant can only conclude that the Dr Thompson concurs that: (i) the decision to determine the matter in accordance with the CaPE Framework was open to the delegate; -- 6 of 10 -- 7 (ii) no discipline action would be taken in relation to the matter. Although Ms Fogarty did consider that the alleged conduct was inconsistent with the standards expected of a public service employee; and (iii) mediation between the parties was appropriate to rebuild the workplace relationships; (f) an internal review is not a meaningful process if it merely repeats the decision that has already been made, without providing any reasons as to why the initial decision is confirmed; (g) the Appellant has no greater understanding of how the conclusions were made by Dr Thompson as a result of the internal review decision;5 (h) the submissions of the Respondent further reinforce that Dr Thompson merely reiterated the decision of Ms Fogarty; (i) the Respondent has relied heavily upon the CaPE Framework to make determinations in this matter. While assessment can occur under the CaPE Framework, the Appellant submits that the Directive is still the process that ought to be followed when making determinations arising from individual employee grievances; and (j) by simply reconfirming the original grievance decision, Dr Thompson has not sufficiently addressed the concerns with the appropriateness of the original resolution proposed which the Appellant expressed in the internal review request. Consideration [19] Consideration of an appeal of this kind requires a review of the internal review decision to determine if the decision was fair and reasonable in the circumstances. [20] The Appellant's grounds of appeal relate primarily to the adequacy of reasons provided in the internal review decision by Dr Thompson. Clause 9.2(h) of the Directive provides that at the completion of the internal review, including a decision to take no further action under cl 9.2(e), the chief executive or delegate must provide a written decision to the employee. There is no dispute that the Appellant was provided with a written decision following the internal review by Dr Thompson. [21] Clause 9.2(h) of the Directive also provides that the decision must do the following: (i) outline the action taken to review the decision made through local action (ii) outline the reasons for the decision, or the decision to take no further action (iii) outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and (iv) outline any avenues of external review that may be available to the employee, including any relevant timeframes. 5 Eiser v State of Queensland (Queensland Health) [2021] QIRC 191, [27]. -- 7 of 10 -- 8 [22] There is no dispute that the decision satisfied the requirements of cls 9.2(h)(iii) and (iv), with the Appellant submitting only that that the decision did not satisfy the requirements of cls 9.2(h)(i) and (ii). The Appellant submits that the decision did not outline the action taken to review the decision made through local action or the reasons for the decision. [23] An internal review requires the decision maker to consider the local action decision. The decision by Dr Thompson was a 'review' and the only determination required was whether the decision by Ms Fogarty was fair and reasonable. If there are no aspects of the local action decision that are considered unfair or unreasonable, it is open to the decision maker to confirm the decision under review. [24] The decision by Ms Fogarty determined that the conduct alleged by the Appellant was considered conduct inconsistent with the conduct standards expected of a public sector employee. Ms Fogarty determined that the matter be dealt with through remedial workplace action in accordance with the CaPE Framework. Ms Fogarty further stated: As a management action, I will meet with Mr David Allen, Manager, Exhibition Services, to bring him into awareness. This will ensure Ms Allen [sic] understands the situation and is able to identify situations and address concerns within the team. In an endeavour to re-build the professional relationship between yourself and Mr Houweling, I will also make arrangements for you both to participate in a facilitated discussion. It is an expectation that you participate in this process to positively contribute to the resolution of this matter. I am confident you will actively engage in this reflective and developmental process. Further information regarding this facilitated discussion will be sent to you in due course. [25] The Appellant was dissatisfied by Ms Fogarty's decision and consequently requested an internal review. As part of that process, the Appellant submitted that Ms Fogarty's decision was not fair and reasonable because it did not satisfy the requirements under cls 9.1(f)(i) and (ii) of the Directive in that the decision did not outline the action taken to manage the individual employee grievance and provide the reasons for the decision. The Appellant submitted that Ms Fogarty's proposal of a facilitated discussion between the parties in the workplace did not identify how that management action would resolve his grievance or ensure his safety given the nature of the incident. [26] Following consideration of Ms Fogarty's decision, Dr Thompson outlined the following in his internal review decision: Ms Fogarty's determination of the matter was based on careful consideration of the seriousness of the alleged conduct, the information gathered through management enquiry and natural justice mechanisms and consequently, the most appropriate way is [sic] to resolve the matter. … The Directive states that the decision must outline the action taken to manage the grievance. On 27 September 2021, the delegate's decision of the matter was provided to you. The delegate advised you no formal action would be taken, meaning the delegate determined not to undertake disciplinary action. The delegate advised you she considered the alleged conduct was behaviour/conduct which was inconsistent with the conduct standards expected of a public sector employee. The delegate did not determine that the matter met the definition of assault under the Criminal Act 1899 [sic]. No determination was made to transfer Mr Howeling from the position of Head of Exhibitions Workshop, and Exhibition Services. The delegate advised the matter would be addressed through retraining, development and remedial action in the workplace. -- 8 of 10 -- 9 … The intent of undertaking a mediation as a remedial workplace action is to provide a supportive mechanism for parties to have opportunity to rebuild trust where there has been hurt. I have been informed of the impact the interaction has had on your health. I understand this is being addressed through the rehabilitation and return to work process. QMN will apply the principles the Workplace Rehabilitation Policy, coupled with medical advice from your treating practitioner to provide a safe and supportive return. I urge you to consider the mediation as an important step in building that safe and supportive return… As advised by Ms Natalie Blackwell, Manager, Human Resources & Organisational Development via email on 8 October 2021, there is no expectation for you to undertake workplace action whilst you are unfit for work. Discussions relating to your capability to return to your substantive position will occur in accordance with the Workplace Rehabilitation process and will be determined in accordance with medical advice. [27] The decision by Dr Thompson demonstrated the action taken to review the decision by Ms Fogarty. The words 'action taken to review' do not appear in the decision, however this is not a requirement. Dr Thompson's decision reflects the actions taken as part of his consideration. Dr Thompson considered the requirements of the Directive and compared those requirements to the contents of Ms Fogarty's decision. Dr Thompson considered each of the determinations in Ms Fogarty's decision and considered that they were fair. Dr Thompson then addressed the grounds upon which the Appellant sought the review and demonstrated consideration of mediation as an appropriate mechanism for parties to 'rebuild trust where there has been hurt'. Following this consideration, Dr Thompson outlined further, his consideration of the proposed remedial workplace action in the context of the Appellant's health. [28] Any reasonable assessment of the decision would determine that the reasons for the decision were made clear to the Appellant. It is sometimes the case that an employee seeking a review would like greater detail to be provided in such decisions, particularly in matters in which they disagree with the outcome. Whilst more fulsome explanations may be sought, the requirement is only that the reasons for the decision can be understood. In the circumstances of this matter, I am satisfied that sufficient detail was included in the decision to explain why the decision was made. [29] An internal review decision is simply a review of the local action decision and hence the decision maker is not required to include information regarding other management actions. I accept the Respondent's submission that to provide the Appellant with information relating to the actions taken with regard to considering the substantiation of the allegations raised against Mr Houweling would be unreasonable and a breach of privacy. [30] It may be the case that the Appellant's concerns lie primarily with the outcome of both the decision of Ms Fogarty and the internal review. There appear to be difficult interpersonal issues within the Appellant's workplace which have led to the Appellant's initial complaint. The Appellant may be disappointed that the decision makers have not accepted his proposed solutions, particularly in light of the significant impact the situation appears to have had on his health. These factors do not render the decision under appeal to be unfair or unreasonable. I note that the decision confirms that the Appellant's capacity to return to work will be determined in accordance with medical advice, which will presumably ensure that the Appellant is not required to engage in remedial action until he is medically fit to do so. -- 9 of 10 -- 10 [31] The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:6 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.7 [32] Applying the principles outlined above, I do not consider that the decision appealed against lacks justification in the circumstances. [33] Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances. Order [34] I make the following order: Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. 6 [2019] QSC 170. 7 Ibid [207]-[209]. -- 10 of 10 --