Di Carlo v State of Queensland (Queensland Health) [2022] QIRC 61

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Di Carlo v State of Queensland (Queensland Health) [2022] QIRC 061 PARTIES: Di Carlo, Guiseppe (Joseph) (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2021/116 PROCEEDING: Public Service Appeal – Fair Treatment DELIVERED ON: 3 March 2022 MEMBER: HEARD AT: Knight IC On the papers ORDERS: 1. The appeal is allowed in part. 2. The decision appealed against is set aside in so far as it substantiates Allegation 2, and the following decision is substituted in lieu thereof: Allegation 2 is unsubstantiated. 3. The decision appealed against is otherwise confirmed. CATCHWORDS: PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a decision substantiating two allegations against the appellant – whether the appellant failed to comply with a reasonable -- 1 of 14 -- 2 direction – whether the direction had been properly made – whether the appellant engaged in repeated inappropriate workplace conduct – whether the allegation could be properly substantiated on the evidence considered – whether a greater standard of satisfaction was required to substantiate the allegation – second allegation set aside, appeal otherwise confirmed LEGISLATION AND INSTRUMENTS: Code of Conduct for the Queensland Public Service cls 1.5, 4.1 Industrial Relations Act 2016 (Qld) s 562B Public Service Act 2008 (Qld) ss 187, 197 CASES: Briginshaw v Briginshaw (1938) 60 CLR 336 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Minister for Immigration and Citizenship v Li (2013) 249 CLR 332 Reasons for Decision [1] Mr Guiseppe (Joseph) Di Carlo is employed as a Patient Support Officer with Patient Support Services ('PSS') at Prince Charles Hospital within Metro North Hospital and Health Service ('the MNHHS'). He is employed on a casual basis. [2] In a decision letter dated 23 March 2021, Mr Peter King, Director Patient Services of the MNHHS confirmed the substantiation of two allegations made against Mr Di Carlo regarding his conduct with respect to another employee ('the complainant') ('the decision'). [3] By appeal notice filed 31 March 2021, Mr Di Carlo appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).1 It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process 1 Public Service Act 2008 (Qld) s 197. -- 2 of 14 -- 3 therein.2 Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.3 Relevant Background [4] Following an unrelated workplace injury, Mr Di Carlo commenced alternative light duties at Royal Brisbane and Women's Hospital ('the RBWH') on 23 March 2020. [5] Between June and November 2020, two complaints were made against Mr Di Carlo with respect to his conduct towards a staff member of a pharmacy located within the RBWH complex. [6] The first complaint was made by the manager of the pharmacy on the complainant's behalf. Mr Di Carlo was informed of the complaint on the same day and advised that it would be managed by way of local action. [7] A signed file note dated 24 June 2020 included the following outcomes:4 • JD is to stay away from the Atrium Plaza in future; • JD will not contact the Pharmacy Staff member anymore; • JD will abide by the Code of Conduct at all time [sic] while working at the RBWH; … [8] The second complaint was made by the complainant herself. After detailing how she first met Mr Di Carlo and the circumstances which led to her manager making the first complaint, she alleged:5 ... 7. Since that time (July 2020) [Mr Di Carlo's] behaviour changed and he avoided me for several weeks. 8. However, in the past two months he has approached me at the shop, near the bathrooms which I use when at work and outside the entries as I come to or from work from the car park. At times I've seen him waiting for me near the bathrooms and I have had to turn around and return to work to avoid him. 9. On a day or so after my birthday... He asked me about my birthday and said he wanted to buy me a present. I told him I didn't want anything and that he should not give me anything. On a later day, ... I found him outside when I left work. He was standing in the rain with a wrapped gift for me. I took it from him and disposed of it. 10. I've never been direct enough to demand that he 'go away' as family have told me to do, but I am very uncomfortable with his ongoing contact and his attempts to know my business and involve me in conversations. 11. Though I had some social contact with [Mr Di Carlo] to talk about his 'issues' his behaviour quickly changed, and his approaches were unwelcome, and I went out of my way to avoid 2 Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 3 Industrial Relations Act 2016 (Qld) s 562B(3). 4 MNHHS's submissions filed 18 May 2021, Attachment MN-1. 5 MNHHS's submissions filed 18 May 2021, Attachment MN-2. -- 3 of 14 -- 4 meeting or speaking with him. However he has continued with his at times aggressive behaviour and unwelcome advances to me in or near my place of work. 12. I want him to have no contact with me. [9] Again, Mr Di Carlo was informed of the complaint on the same day. After determining that it did not meet the threshold for suspected corrupt conduct, the complaint was referred to PSS for management. Show Cause Process [10] In a show cause notice dated 4 February 2021, Mr Di Carlo was invited to respond to two allegations that, if substantiated, may have amounted to grounds upon which he could be disciplined pursuant to s 187(1) of the PS Act. The allegations were set out as follows:6 Allegation 1 It is alleged that during the period July 2020 to November 2020 while working at RBWH, you failed to follow a reasonable direction to cease further contact with [the complainant]. Information supporting Allegation 1 The following particulars are relevant to the allegation: 1. A meeting was held with you on 24 June 2020 with Mr David Fedrick, Cleaning and Wards Coordinator RBWH and the following conversation was file noted (in part) ...: • Mr Fedrick advised you that '... a complaint has come across my desk and it was regarding sexual harassment complaint ... in relation to a staff member from the Atrium Plaza Pharmacy...and you calling ... stalking ... and harassing her.' • you stated using words to the effect 'he [you] has spoken to her this morning to apologise and it wasn't going to happen anymore.' • you were further advised by Mr Fedrick: i. of your obligations in relation to the '...Code of Conduct and that harassment of any staff member was unacceptable at any time.' ii. 'The staff member felt sexually harassed and with the continual calling from him [you] it made her feel really scared and she was hiding before she started work so she didn't have to see you.' iii. That it was not 'a good idea' to still say hello to [the complainant] now 'this complaint has come up.' iv. You were directed 'not to go anywhere near that Pharmacy for any reason...'. v. The Pharmacy Manager was directed to contact Mr Fedrick [sic] if 'you go into his Pharmacy and try to talk to his staff member.' • You acknowledged that you understood. • You were provided with 'a copy of the Code of Conduct to read through, and to be mindful of the way he [you] treats other staff members.' 2. In a statement dated 10 November 2020 from [the complainant], she has stated (in part) ...: • 'He has approached me at the shop, near the bathrooms which I use when at work and outside the entries as I come to or from work from the car park. At times I've seen him 6 Appeal notice filed 31 March 2021, Attachment JC-01 (emphasis in original). -- 4 of 14 -- 5 waiting near the bathrooms and I have had to turn around and return to work to avoid him.' • 'On a day or so after my birthday ... He asked me about my birthday and said he wanted to buy me a present. I told him I didn't want anything and that he should not give me anything. On a later day, on or around 23 October I found him outside when I left work. He was standing in the rain with a wrapped gift for me. I took it from him and disposed of it.' • '... I am very uncomfortable with his ongoing contact and his attempts to know my business and involve me in conversations.' • 'Though I had some social contact with [Mr Di Carlo] initially to talk about his 'issues' his behaviour quickly changed, and his approaches were unwelcome and I went out of my way to avoid meeting or speaking with him, However, he had continued with his at times aggressive behaviour and unwelcome advances to me in or near my place of work.' 3. In a statement dated 16 November 2020 provided by you to MNHHS Integrity Unit, you stated (in part) ...: • With reference to the meeting held with you on 24 June 2020, you stated: i. '... I was told to stay away from [the complainant] ... Dave indicated that I was not to go into the Pharmacy which was at the pharmacist's request and not to speak to [the complainant].' ii. '... I agreed to these terms ...' • '...one day when I passed [the complainant] I asked if her birthday had come or gone ... I asked her if 'I can buy her a small birthday gift' ... she said 'you don't have to, I am okay'. • 'On 4 November I was waiting for [the complainant] to finish work whilst I was on my break, I had the gift wrapped in a plastic wrapper, I saw [the complainant] approach, she had a smile on her face and I said 'sorry it's late but I found it very hard to find you the right gift and I told a colleague that maybe I should purchase a massage and facial voucher however my colleague said that's too personal don't do it'.' • On 11 November 2020, 'this is the date that my supervisor told me a second complaint had been made.' 4. In a statement dated 22 December 2020 from [the complainant], she has stated (in part) ...: • '... he would try to catch my eye or be close enough to call out to me. He'd say [the complainant's name]. He would be close enough to areas I was either in pharmacy, coming or going to the toilet or from work to catch my eye and call out to me.' • '... I didn't want to have someone there at work all the time calling out to me, I just didn't need him to be there in my space all the time.' • 'Every time I went somewhere, like the toilet, he was there. He was just there all the time. He would catch me in tunnel (COVID entry/exit walkway) as I was walking through or be at the end of the walkway waiting.' • 'Another time, he was waiting near the walkway near the post office and waited to let me pass, I said 'no you go, I have to give way to my right'. I said this because I didn't want him to check me out as I walked by.' Allegation 2 It is alleged that during the period July 2020 to November 2020 while working at RBWH, you engaged in repeated inappropriate workplace conduct towards [the complainant]. -- 5 of 14 -- 6 Information supporting Allegation 2 The following particulars are relevant to the allegation: 1. This Allegation references the information provided to you in Allegation 1 above. 2. The following workplace behaviours have been reported by [the complainant] and summarised below: • Repeated approaches and repeated attempts to make contact with [the complainant] in the workplace including: i. Waiting outside bathrooms used by [the complainant], and ii. Waiting outside workplace entrance/exit points, and iii. Waiting outside the Pharmacy and calling out to [the complainant], and iv. Giving [the complainant] a gift for her birthday. [11] Attached to the show cause notice was an unsigned file note dated 24 June 2020 detailing the discussion referred to at [7] above, the second complaint dated 10 November 2020 and a further statement dated 22 December 2020 made by the complainant. [12] Mr Di Carlo was provided with fourteen days in which to respond to the allegations and accompanying particulars. Mr Di Carlo's Response [13] Mr Di Carlo responded to the show cause notice on 18 February 2021, submitting:7 • He had been informed the first complaint was made by the complainant's manager, as the complainant herself did not want to press it; • The second complaint was a consequence of a gross misunderstanding and lack of communication between the parties, as well as 'an error in judgment on both sides'; • He was not aware he was making the complainant feel uncomfortable and had he known she did not want to talk to him, he would have ceased contact immediately; • He had explicitly asked the complainant whether he could still talk to her and her response to the effect of 'We can still talk, but certain rules have to apply'; • He has never waited for the complainant outside bathrooms, the carpark or any other place, nor has he called out to her to get her attention; • He denied having entered the pharmacy to speak to the complainant after the meeting on 24 June 2020; • When their paths did cross, this was incidental and in the course of his duties, and the complainant was usually the one to initiate conversation; • The complainant's behaviour, which included friendly jokes and smiles, confused Mr Di Carlo and gave him the impression he could talk to her; 7 Appeal Notice filed 31 March 2021, Attachment JC-02. -- 6 of 14 -- 7 • The complainant had repeated a comment to Mr Di Carlo that he was her 'personal stalker'. Mr Di Carlo was incredibly offended by the joke despite the fact that the complainant had said it was funny, just a joke and she did not think that of him; • During their conversations, Mr Di Carlo was never forceful or aggressive, nor did he probe for personal information; • With respect to the birthday gift he gave her, he was under the impression that she was thankful for the gift and had initially refused only out of courtesy; • As he waited to give her the gift, the complainant had approached him to initiate conversation; • In response to a comment Mr Di Carlo made with respect to a massage voucher as a proposed birthday gift, the complainant responded that she frequently gets massages and would be getting one with her daughter that weekend; • While he conceded the discussion on 24 June 2020 occurred, he denied there was any discussion in relation to sexual harassment; • He conceded that during the meeting on 24 June 2020 he had been advised harassment of any staff member was unacceptable at any time, as well as his obligations under the Code of Conduct which he subsequently read; • He conceded that he had been told not to speak to the complainant or go near the pharmacy in which she worked, and had understood the instruction; and • His reasons for continuing to speak to the complainant resulted from misunderstandings explained above and the complainant's behaviour towards him. [14] Mr Di Carlo also stated that he now understands he may have perceived certain interactions differently to the complainant, but maintains he only ever acted with professionalism and respect towards her. The Decision [15] Attached to the decision was a 'Statement of Reasons' ('the reasons'). With respect to the first allegation, the reasons relevantly:8 • Noted the decision-maker had carefully considered all of the information available to him, including Mr Di Carlo's response of 18 February 2021; • Found the instruction not to enter the pharmacy or communicate with the complainant was clear; • Considered Mr Di Carlo's continued contact with the complainant demonstrated a complete disregard for the instructions; 8 Appeal notice filed 31 March 2021, Attachment JC-03. -- 7 of 14 -- 8 • Stated that the decision-maker was 'extremely concerned' that Mr Di Carlo did not consider his actions to be inappropriate; and • Determined that the events described in Allegation 1 were likely to be accurate on the balance of probabilities and consequently substantiated the allegation. [16] With respect to the second allegation, the reasons relevantly: • Noted Mr Di Carlo acknowledged having initiated contact with the complainant via 'greetings and acknowledgments' and in relation to her birthday; • Considered that contact constituted repeated approaches and/or attempts to initiate contact with the complainant and as such, constituted harassing behaviour towards her; and • Determined that the events described in Allegation 2 were likely to be accurate on the balance of probabilities and consequently substantiated the allegation. [17] The decision-maker concluded by noting:9 Given the information discussed above, I am of the view that you have failed to follow a reasonable instruction provide by your Manager and by doing so, your repeated behaviour towards [the complainant] constitutes harassment and this will not be tolerated in the workplace. Based on the serious nature of the allegations which have been substantiated on 'the balance of probabilities', I am proposing the disciplinary penalty of your removal from the casual pool. Grounds of Appeal [18] Mr Di Carlo appeals on the grounds that the decision-maker: Misrepresented the facts, in particular, that there was a direction not to talk to the complainant; and Failed to apply the requisite standard of proof in substantiating the allegations. [19] I note Mr Di Carlo initially raised a third ground of appeal being an alleged failure on the part of the MNHHS to separate the role of the investigator and decision-maker. That ground was abandoned in reply submissions10 and, in my view, the concession was properly made. It is not necessary to consider it further. Relevant Principles [20] The PS Act relevantly provides: 187 Grounds for discipline (1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— 9 Emphasis in original. 10 Mr Di Carlo's submissions in reply filed 26 May 2021, [4]. -- 8 of 14 -- 9 ... (d) contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or ... (g) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. ... (4) In this section— ... relevant standard of conduct, for a public service employee, means— (a) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or (b) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994. responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise. [21] The Code of Conduct for the Queensland Public Service ('the Code of Conduct') relevantly provides: 1.5 Demonstrate a high standard of workplace behaviour and personal conduct We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public. We will: a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own b. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment ... 4.1 Ensure diligence in public administration We have an obligation to seek to achieve high standards of public administration and perform our duties to the best of our abilities. We will: ... d. comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction. Submissions Misrepresenting the facts [22] Mr Di Carlo contends the MNHHS has misrepresented the facts, namely the nature of the direction.11 He submits that at no time was there a 'clear and particularised direction' 11 Mr Di Carlo's submissions attached to his appeal notice filed 31 March 2021, 2. -- 9 of 14 -- 10 not to speak to the complainant.12 While he appears to accept that it was discouraged, there was no direction preventing Mr Di Carlo from exchanging courtesies with the complainant.13 Rather, he contends he was only directed not to go near the pharmacy in which she worked.14 [23] The MNHHS denies that the direction given to Mr Di Carlo was ambiguous, or that it could be misunderstood merely as a direction not to enter the pharmacy.15 In doing so it relies on a file note made following the meeting with Mr Di Carlo on 24 June 2020 which records, under the heading 'Action/Outcome', 'JD will not contact the Pharmacy Staff member anymore'.16 The same file note also includes a line stating 'JD said that he understands, and he will not contact her anymore'.17 Failure to apply the requisite standard of proof [24] Although Mr Di Carlo concedes the MNHHS identified the correct standard of proof, being 'on the balance of probabilities', he contends it failed to apply that standard correctly.18 Relevantly, he submits that given the seriousness of the consequences for Mr Di Carlo, a higher degree of probability was required for the MNHHS to substantiate the allegations.19 Mr Di Carlo submits the MNHHS substantiated the allegations without corroborating evidence, despite reasonable explanations provided by him and simply on the basis that it considered the complainant had no reason to misrepresent events.20 Doing so, he submits, was unreasonable.21 [25] The MNHHS contends the substantiation of the two allegations was a decision that could fairly and reasonably be reached by the decision-maker based on the evidence obtained.22 It denies having failed to apply the appropriate standard of proof being the balance of probabilities.23 It submits the allegations were substantiated on the basis of the complainant's reports, witness reports and Mr Di Carlo's own statements and acknowledgements with respect to his behaviour.24 12 Ibid; Mr Di Carlo's submissions in reply filed 26 May 2021, [5]. 13 Mr Di Carlo's submissions in reply filed 26 May 2021, [6(b)]. 14 Mr Di Carlo's submissions attached to his appeal notice filed 31 March 2021, 2. 15 MNHHS's submissions filed 18 May 2021, [20.3]. 16 Ibid [20.2], Attachment MN1. 17 Ibid. 18 Mr Di Carlo's submissions attached to his appeal notice filed 31 March 2021, 2. 19 Ibid, citing Briginshaw v Briginshaw (1938) 60 CLR 336. 20 Ibid 2-3. 21 Ibid 2-3, citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332. 22 MNHHS's submissions filed 18 May 2021, [22]. 23 Ibid [21.1]. 24 Ibid [21.3]-[21.4]. -- 10 of 14 -- 11 Was the Decision Fair and Reasonable? Failure to comply with a reasonable direction [26] On 24 June 2020, Mr Di Carlo was advised of a complaint that had been made in respect of his interaction with the complainant. [27] Mr Fedrick, Mr Di Carlo's supervisor took steps to meet with Mr Di Carlo to discuss the complaint. [28] During the meeting, Mr Fedrick communicated the nature of the complaint. [29] As part of his grounds of appeal, Mr Di Carlo maintains he was not given a direction to refrain from speaking to the complainant. [30] A file note detailing the discussions between Mr Di Carlo and Mr Fedrick was provided to the Commission. The body of the file note includes:25 When JD came into the office, I informed him that a complaint has come across my desk and it was regarding sexual harassment complaint. I then informed JD that it was in relation to a staff member from the Atrium Plaza Pharmacy. And you calling her and stalking her and harassing her. JD stated that he has spoken to her this morning to apologise and it wasn't going to happen anymore. I then discussed with JD the Code of Conduct and that harassment of any staff member was unacceptable at any time. This staff member felt sexually harassed and with the continual calling from him it made her feel really scared and she was hiding before she started work so she didn't have to see you. JD said that he understands, and he will not contact her anymore. But JD stated that when he spoke to her this morning, he did ask if he could still say hello, and JD stated that she said yes, he could. I then stated to JD that isn't a good idea since this complaint has come up. I then stated to JD that I'm directing him not to go anywhere near that Pharmacy for any reason. I also informed JD that I have instructed [the pharmacy Manager] to contact me immediately if you go into his Pharmacy and try to talk to his staff member. I then asked JD did he understand. JD acknowledged that he did. JD than [sic] asked what if he had to get some medicine from the Pharmacy. I instructed JD to go to another Pharmacy and get it, due to this complaint. I then handed JD a copy of the Code of Conduct to read through. And to be very mindful of the way he treats other staff members. He might feel that he isn't doing anything wrong but other people might take it the wrong way. Which I believe this issue might have been by your understanding. 25 MNHHS's submissions filed 18 May 2021, Attachment MN-1 (Errors in original; emphasis added). -- 11 of 14 -- 12 [31] On a narrow reading of several of the paragraphs in the note, it could be argued Mr Di Carlo was given a specific direction to not enter the pharmacy. Moreover, that in relation to speaking to the complainant, Mr Di Carlo was only told 'that isn't a good idea'. [32] However, in combination with the recorded acknowledgements of Mr Di Carlo and the Action/Outcome items contained at the conclusion of the file note, the position of Mr Di Carlo's supervisor in so far as it related to any further interaction with the complainant, is clear, namely:26 • JD is to stay away from the Atrium Plaza Pharmacy in the future; • JD will not contact the Pharmacy Staff member anymore; … [33] I am satisfied, having considered the file note and the submissions of both parties, that Mr Fedrick's position, in so far as it related to Mr Di Carlo staying away from both the complainant and the pharmacy, was clear. [34] Moreover, notwithstanding the discussions between Mr Di Carlo and Mr Fedrick on 24 June 2020, on Mr Di Carlo's own evidence, there seems to be no question he engaged with the complainant on several other occasions thereafter, including on or around her birthday when he asked her if he could buy her a present. [35] On that event alone, I consider it was fair and reasonable for the MNHHS to conclude Mr Di Carlo had failed to follow a reasonable direction to cease further contact with the complainant. Repeated inappropriate workplace conduct [36] The same cannot be said for Allegation Two, which is framed in the following terms: It is alleged that during the period July 2020 to November 2020 while working at RBWH, you engaged in repeated inappropriate workplace conduct towards [the complainant]. [37] In November 2020, the complainant provided the MNHHS with a statement concerning the conduct of Mr Di Carlo in the two months prior to November 2020, which included descriptions of repeated approaches and attempts by Mr Di Carlo to engage with the complainant, notwithstanding the earlier warning to stay away, namely: Waiting outside bathrooms used by the complainant; Waiting outside workplace entrance/exit points the complainant utilised; Waiting outside the pharmacy and calling out to the complainant; and Giving the complainant a birthday gift. 26 MNHHS's submissions filed 18 May 2021, Attachment MN-1. -- 12 of 14 -- 13 [38] Other than a specific occasion concerning the complainant's birthday, the statement did not include reference to dates or times on which the events were said to have taken place. [39] The particulars relating to Allegation Two with the show cause notice, included a summary of the concerns raised by the complainant. Mr Di Carlo was requested to respond to the allegations. [40] Within his response, Mr Di Carlo: • Vigorously denied the allegations in relation to waiting outside bathrooms or waiting for the complainant in any place, other than when it was her birthday; • Denied becoming aggressive towards the complainant; • Denied calling out to the complainant; • Denied entering the pharmacy; • Noted that any interaction that did occur between the pair was inadvertent and occurred in the normal course of undertaking his duties; and • Conceded he had approached the complainant on or around her birthday and offered to buy her a present. [41] Representatives for Mr Di Carlo argue the MNHHS did not have sufficient evidence to substantiate the allegations set out in Allegation Two. [42] In the decision substantiating Allegation 2, and in response to the show cause response submitted by Mr Di Carlo, the MNHHS noted: I acknowledge your response, however in relation to allegation 1, you confirmed that you did initiate contact via 'greetings and acknowledgements' and that you did initiate contact with [the complainant] with regard to her birthday. I view these actions as repeated approaches or attempts to initiate contact with [the complainant] and as such, forms of harassing behaviours towards [the complainant], which were contrary to clear instructions not to have contact with [the complainant] which included saying hello. [43] The difficulty I have with this conclusion, although it may well be the case the MNHHS is correct, is that there is no material before the Commission to indicate the MNHHS took meaningful steps to consider Mr Di Carlo's denials or undertake further investigations to determine if there was any substance to his claims. [44] In its defence, the MNHHS argues it was open to the decision-maker to confirm the allegation, on the balance of probabilities, notwithstanding the absence of corroborating evidence and where it determined the incident was more likely to have occurred in the manner alleged. [45] Although I accept the MNHHS has identified the appropriate test, I am of the view Allegation 2, notwithstanding the general nature of the claims and the lack of dates, is -- 13 of 14 -- 14 quite serious. When viewed in conjunction with the particulars, it essentially alleges harassment of a sexual nature. [46] Given the seriousness of the allegation, I consider it was incumbent on the MNHHS having received Mr Di Carlo's denials, to take steps to obtain further and better particulars from the complainant, including, for example, dates and times when it was claimed Mr Di Carlo was loitering in the nominated areas or had approached the complainant. Likewise, CCTV materials and rosters may well have been of assistance in better understanding what had transpired between Mr Di Carlo and the complainant. [47] While I recognise the challenges, including time and cost, that often follow further investigations of this nature, the seriousness of the claims, in my view, warranted the additional effort. [48] For those reasons and in the absence of any other materials that would suggest otherwise, although I accept Mr Di Carlo contacted the complainant on at least one occasion after he had received an initial warning, I am not persuaded there was sufficient evidence before the decision-maker to meaningfully conclude Mr Di Carlo had engaged in repeated inappropriate workplace conduct towards the complainant. Conclusion [49] For the reasons given above, I consider the decision to substantiate Allegation 1 was fair and reasonable. However, in the absence of further evidence and having regard to the seriousness of the matters raised within the allegation, I do not consider the decision to substantiate Allegation 2 was fair and reasonable. It follows that the decision must be set aside in so far as it substantiates Allegation 2. [50] I order accordingly. Orders 1. The appeal is allowed in part. 2. The decision appealed against is set aside in so far as it substantiates Allegation 2, and the following decision is substituted in lieu thereof: Allegation 2 is unsubstantiated. 3. The decision appealed against is otherwise confirmed. -- 14 of 14 --