AW v State of Queensland (Department of Environment and Science) [2021] QIRC 36

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: AW v State of Queensland (Department of Environment and Science) [2021] QIRC 036 PARTIES: AW (Appellant) v State of Queensland (Department of Environment and Science) (Respondent) CASE NO: PSA/2020/259 PROCEEDING: Public Service Appeal – Appeal against a disciplinary decision DELIVERED ON: 1 February 2021 MEMBER: HEARD AT: Pidgeon IC On the papers OUTCOME: 1. The disciplinary finding made by the delegate regarding the second allegation is set aside. 2. The remaining disciplinary findings made by the delegate are confirmed. 3. The disciplinary penalty imposed by letter dated 28 September 2020 is confirmed. LEGISLATION: Code of Conduct for the Queensland Public Service Industrial Relations Act 2016 s 562B -- 1 of 24 -- 2 Public Service Act 2008 s 194 Commission Chief Executive Guideline 01/17: Discipline Reasons for Decision [1] AW (the Appellant) is employed by the State of Queensland as a Ranger in Charge with Queensland Parks and Wildlife Service, Department of Environment and Science (the Department). On 3 December 2019, the Appellant was informed that there were allegations against him which may give rise to discipline and he was to undertake alternative duties until the matter is resolved. On 17 January 2020, the Appellant was told that there were further allegations regarding his behaviour and conduct and a decision had been made to suspend him from duty on normal remuneration. [2] Ms Susan Chrisp, Deputy Director-General, Corporate Services is the delegate for the matter and engaged an external investigator, Devaney Investigations, to investigate the allegations. [3] On 26 February 2020, the Appellant was provided with correspondence informing him that allegations had been made against him. He was informed that the matter was being investigated and that he was required to participate in an interview. Schedule 1 to the letter listed 15 allegations and particulars. Schedule 2 set out the provisions that the Appellant may be in breach of if the specific allegation was substantiated. [4] The investigation was completed on 30 April 2020 and the investigation report was provided to the delegate for consideration. Based on the investigation report, the delegate decided to commence a disciplinary process. [5] On 22 June 2020, the Appellant was provided with correspondence informing him that the investigation had concluded and that he would be given a redacted copy of the investigation report. Attached to that correspondence was an investigation report summary. In short, there was insufficient evidence to reach a finding on seven of the allegations. A further seven allegations were deemed capable of substantiation on the balance of probabilities and one was deemed partially capable of being substantiated on the balance of probabilities. In an additional letter dated 22 June 2020, the Appellant was invited to show cause why he should not be disciplined in relation to the remaining allegations which are as follows: Allegation one It is alleged that on or around 11 November 2019, during the deployment on the Reef Ranger, you touched or slapped MSA (a pseudonym) on the bottom in the freezer room. Allegation two On several occasions throughout the deployment on the Reef Ranger between 8 and 15 November 2019, you touched MSA (a pseudonym) on the bottom. -- 2 of 24 -- 3 Allegation three It is alleged that on an unknown date between 8 and 15 November 2019, while on board the Reef Ranger, you said to MSA (a pseudonym) words to the effect of 'My stomach has lost its elasticity just like your arse'. Allegation four It is alleged that on or around 14 November 2019, while MSA (a pseudonym) was sitting on the bow of the Reef Ranger, you straddled and pulled or dragged MSA into your body when she tried to stand up. Allegation five It is alleged that between 8 to 15 November 2019, you massaged MSA's (a pseudonym) shoulders while on board the Reef Ranger. Allegation six It is alleged that on or around 14 November 2019 while on board the Reef Ranger, you were aggressive and intimidating towards MRB (a pseudonym). Allegation seven It is alleged that on or around 16 May 2017 while on deployment to Lizard Island, you commented on the way MSC (a pseudonym) and MSD (a pseudonym) looked saying words to the effect of 'oh you guys scrub up well, look at you, all nice in your dresses'. Allegation eight It is alleged that on or around 16 May 2017 while on deployment to Lizard Island, you stripped your clothes off in front of departmental employees and Lizard Island resort staff. [6] The Appellant, through his lawyers, provided responses to these allegations. On 12 August 2020, the Appellant was informed of the findings on the allegations against him. [7] With regard to allegation one, the delegate determined to make a finding of an alternative allegation, specifically that: "On or around 11 November 2019 during the deployment on the Reef Ranger, you touched MSA inappropriately while in the freezer room". [8] The delegate found that allegations two and three were substantiated. [9] With regard to allegation four, the delegate determined to make a finding of an alternative allegation, specifically that "on or around 14 November, while MSA was sitting on the bow of the Reef Ranger, you hugged or put your arms around her when she was trying to stand up". [10] The delegate found that on the balance of probabilities there is not sufficient evidence to conclude that the conduct subject of allegation five constitutes a breach of the Code of Conduct and therefore does not provide a ground for discipline. [11] Allegation six was found to be substantiated. [12] While finding allegation seven capable of being substantiated on the balance of probabilities, the decision maker found that there was not sufficient evidence to conclude -- 3 of 24 -- 4 that the conduct constitutes a breach of the Code of Conduct for the Queensland Public Service (the Code) and therefore does not provide a ground for discipline. [13] Allegation eight was found to be substantiated. [14] The Appellant was informed that the decision maker was giving serious consideration to: • a 12 month transfer into a terrestrial parks position, located in Cairns; • a 12 month classification drop to OO5/4, after which, conditional upon performance (including conduct) measures being met, you would return to OO6/1; • online code of conduct training; and • appropriate behaviour training. [15] On 7 September 2020, through his lawyers, the Appellant responded to the proposed disciplinary action. [16] On 28 September 2020, the Appellant was informed that the following decision had been made regarding disciplinary action: • a 12 month transfer to a terrestrial position, located in Cairns, with no supervisory responsibility; • a 6 month increment drop to OO6/1; • The ability to increment up to an OO6/2 after 6 months if there are no performance or conduct concerns raised (after this continue to increment as per normal); • Online code of conduct training; and • Appropriate Workplace Behaviour training. [17] The disciplinary decision letter mentioned above informed the Appellant that he may appeal the decision within 21 calendar days of receiving the decision. [18] On 14 October 2020, the Appellant filed an appeal notice with the Industrial Registry. The reasons for appeal as listed on the notice can be summarised as such: • The investigator has approached the investigation in a biased manner; • the investigator has given insufficient weight to the actual contents of the complainant and witness evidence; • insufficient weight was given to the fact that all staff on the last night of the deployment had been consuming alcohol, some very heavily; -- 4 of 24 -- 5 • allegations one through four, and interactions with MSA, insufficient weight given to: - Nature of the relationship and MSA repeatedly pursuing his company during and after work hours including after the freezer room incident took place. - MSA herself saying she believed he had no inappropriate intentions; - Insufficient evidence that he touched MSA's bottom several times during the deployment, he did not do this and finds the allegation distressing; and - His evidence that he had no idea his actions were regarded as unwelcome or inappropriate during the deployment and that he was never approached about it. • allegation six: insufficient weight given to witness statements that all staff on the last night of deployment had been consuming alcohol, some very heavily, including MRB and MSA (as supported by witness statements); • allegation eight: a significant breach of confidentiality which led to a person who was not on the deployment coming forward with an allegation from three years previous for the first time, that allegation led to the matter being escalated to the CCC and to his suspension. That person later admitted to the investigator that the most serious aspects had not actually been witnessed. The allegations are largely untrue and have caused significant damage to his reputation and well-being; and • penalties: - insufficient weight given to his high work performance and unblemished work record for 30 years before these allegations; - insufficient weight given to the evidence that he had no idea his actions were unwelcome or inappropriate; - insufficient consideration given to his remorse for what he did do wrong; and - penalties already endured (suspension) including significant emotional distress, reputational damage and financial loss. Is the Appellant entitled to appeal? [19] Section 194 of the Public Service Act 2008 ("the PS Act") lists various categories of decisions against which an appeal may be made. Section 194(1)(b)(i) provides that an appeal may be made against a decision under a disciplinary law to discipline a person (other than by termination of employment), including the action taken in disciplining the person. -- 5 of 24 -- 6 [20] The Appellant received a letter containing disciplinary findings on 28 September 2020 and filed an appeal against the decision with the Industrial Registry on 14 October 2020, within 21 days after receipt of the notice. [21] The Appellant was at all relevant times an employee of the agency. [22] I am satisfied that the Appellant may appeal the decision. Appeal Principles [23] Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable". [24] Relevantly to this matter, s 562B(4) of the IR Act states that "for an appeal against a decision about...disciplinary action, the Commission must decide the appeal having regard to the evidence available to the decision maker when the decision was made". [25] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal. [26] A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. In determining the appeal, I will address the following issues: 1) Was the decision to substantiate the allegations and determine that there was a disciplinary finding fair and reasonable? And, if so: 2) Was the decision to implement the disciplinary action outlined above at [16] fair and reasonable? What decisions can the Commission make? [27] In deciding this appeal, s 562C of the Industrial Relations Act 2016 (IR Act) provides that the Commission may: (a) confirm the decision appealed against; or … (b) 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. Was the decision to substantiate the allegations and determine that there was a disciplinary finding fair and reasonable? -- 6 of 24 -- 7 The investigation – the Appellant's submissions [28] The Appellant says that due to the nature of the allegations at the outset and the gathering of additional evidence as a result of the breach of confidentiality, the investigator approached the investigation in a biased manner and gave insufficient weight to the actual contents of the complainant and witness evidence. [29] The Appellant contends that interviewing MSA first and then all witnesses before speaking to him creates a risk that the evidence collected was very one-sided before meeting with him. [30] Further, the Appellant says that the investigator asked 'leading questions' and that more weight was placed on the evidence of MSA and other witnesses who she has a relationship with outside of the workplace compared to that of himself and MRG, both of whom are senior long term employees. [31] The Appellant points to MSA's statement to the Acting Principal Ranger where she says she was confident the behaviour was not coming from a place of ill-intent, rather misjudgement and in the context of friendly banter, that MSA had likened their relationship to a father/daughter relationship and also as a friend. He says that he never had or displayed any sexual interest in MSA. [32] The Appellant says that the investigator and the Department appear to have completely disregarded the level of alcohol consumed by the crew on the final night of the deployment. He further says that the Department overlooked the failure of the two officers in charge to take steps to control the level of drinking activity. The investigation – Department submissions [33] In response, the Department says that the investigator approached the investigation in a fair and reasonable manner and provided detailed analysis of their assessment of witness evidence and credibility. [34] The Department says that it is appropriate that the investigator probe and test evidence with witnesses and that this can include providing information to them and querying whether it aligns with their knowledge/recollection of events. [35] The Department submits that it is standard practice in a workplace investigation for the investigator to first interview the complainant, then witnesses and lastly the subject officer, to avoid multiple interviews. [36] As the Appellant raised concerns during the investigation of bias and collusion, additional interviews were undertaken to assess and provide information to the delegate -- 7 of 24 -- 8 regarding these concerns. The Department says that this reflects the extent to which the department went to ensure a fair and thorough investigation process. [37] The Department submits that the relationship between the Appellant and MSA was considered during the investigation and disciplinary process however it does not negate MSA's ability to raise concerns nor the fact that the Appellant's behaviour was inappropriate and unwelcomed. The Department says that the Appellant himself admitted on several occasions that the behaviour was inappropriate. [38] With regard to the Appellant's submissions about the additional allegations, the Department says that there is no evidence a breach of confidentiality gave rise to these allegations. Further, the Department says that given the serious nature of the allegations, once the Department became aware of them, it was appropriate to include them. Consideration: The investigation process was fair and reasonable Lizard Island Allegations [39] In circumstances where the Department became aware of the Lizard Island allegations, it was appropriate for them to be investigated and addressed. While the Appellant disagrees with the particulars relating to the allegations, his responses indicate that some form of events did occur that night reflective, in part, of the matters put to him. I am satisfied that the Appellant had an adequate opportunity to respond to the additional allegations. Alcohol consumption [40] The alcohol consumption of employees on the evening of some of the events subject of the allegations added additional complexity to the investigation and the considerations of the decision maker. I am satisfied that this has been addressed by the investigator. [41] The executive summary of the investigation report addresses the issues of alcohol consumption and intoxication: There is a significant amount of conflicting evidence about who was intoxicated and who was not. In the absence of objective evidence, the Investigator has determined that the only fair way to assess whether an employee was intoxicated on the evening of 14 November 2019, is to accept their own evidence about their level of intoxication. It then follows that AW, MRG, MRB, MRF were not intoxicated and MSA was intoxicated earlier in the evening but less so later in the evening once she had stopped drinking. In relation to the Lizard Island Deployment, AW refused to answer the Investigator's questions about his level of intoxication on Lizard Island and the Investigator has therefore relied upon the consistent witness evidence to reach a finding that on the balance of probabilities, AW was intoxicated while on the Lizard Island Deployment. -- 8 of 24 -- 9 [42] The delegate notes that alcohol was consumed and the Appellant's submissions that those in authority condoned the alcohol use but determines that this does not excuse a person in the Appellant's position consuming alcohol or negate the behaviour subject of the allegations. I also find that this determination was reasonably open to the delegate when taking into account the Appellant's role and position along with department policy, the Code and the PS Act. Nature of relationship between the Appellant and MSA [43] In submissions dated 18 November 2020, the Appellant repeats submissions made elsewhere regarding the relationship with MSA. In particular, the Appellant states: MSA sought out my individual company many times during the deployment, including on the second-last night of the deployment. I was fishing alone off the back deck after hours. MSA sought me out and sat close to me and chatted for some time. This was entirely initiated by MSA. I said in my previous submission that "without denying responsibility for my actions, surely this must give the Department some pause to consider that MSA surely felt comfortable in my presence, and that I had no reason to think that my practical joking with MSA was unwelcome or unacceptable to her?' [44] With regard to the relationship between MSA and the Appellant, the executive summary of the investigation report states: The investigator is of the view that there is sufficient evidence to make a finding that the relationship between MSA and AW is that of a supervisor and a subordinate and that they did not have a friendship outside the workplace. There is sufficient evidence to prove that there is a significant power imbalance in the relationship in the sense of rank but also with AW being a permanent employee for almost 10 years with strong support generally in QPWS (with his wife also in a senior position in QPWS) and MSA being a new temporary employee with QPWS. The Investigator also notes that AW would be approximately double the age of MSA. [45] I note the investigation report states the following when discussing comprehensiveness: Throughout the course of the investigation, AW provided an alternate version of events as an explanation of the some of his alleged conduct. In fairness to AW, the investigator has sought out (or made attempts to seek out) evidence that would support his explanations and versions of events. [46] The delegate does take into account the submissions regarding the nature of the relationship between the Appellant and MSA and determines that the nature of the relationship did not excuse the behaviour which took place. [47] The events subject of these allegations occurred in the workplace and on work trips. While the nature of the relationship between the Appellant and MSA was rightly taken into account by both the investigator and the delegate, it is the work context and the role of the Appellant as supervisor and MSA as subordinate that must be considered. I find -- 9 of 24 -- 10 that this determination was reasonably open to the delegate when taking into account the Appellant's role and position, department policy, the Code and the PS Act. The investigation process, the credibility of witnesses and the culture of the workplace [48] I have reviewed all material available to me including the standard of proof, sufficiency of evidence and interview processes followed by the investigator that are contained within the investigation report. [49] The credibility concerns about witnesses raised by the Appellant are dealt with in considerable detail from page 45-52 of the report. Collusion concerns raised by the Appellant are dealt with from page 52-54. I do not intend to summarise or reproduce all of that material here, however, I note the following comments of the Investigator regarding collusion: …The fact that interviewees were away on Deployment at the time has likely resulted in them having more conversations between each other about an incident than might otherwise occur if they were in their usual environment. The investigator cannot rule out entirely that those discussions have not impacted on the evidence provided to the Investigator. However, the evidence provided by interviewees was not aligned to the point where the Investigator's suspicions were raised. The Investigator does not believe collusion has occurred. In relation to some allegations, it was clear that interviewees were not aware that others had seen or reported the same incident. That was an indication to the Investigator that conversations about those incidents had not occurred. … While the Investigator does not consider collusion to have occurred during the course of the investigation, the Investigator understands there is a strong camaraderie among the QPWS team and accepts that some of the interviewees spoke about the events in advance of being informed that a formal investigation would occur. The Investigator has asked probing questions throughout the investigation to test the independent recollection of interviewees. The Investigator is satisfied that the interactions and conversations between QPWS employees has not compromised the integrity of the findings in this Investigation Report.1 [50] With regard to the workplace culture on the deployment and the accounts of 'friendly banter' or 'joking around' given by those interviewed for the investigation: Generally, in workplaces where there is evidence of a culture of banter or 'joking around' and where a subject officer has responded to allegations about their conduct by explaining their behaviour as 'just banter', it is important that the culture of the workplace is taken into consideration even when the dynamics between employees or the workplace culture is suboptimal and has not been endorsed by the department. Generally, context must be considered when assessing allegations but there is a line to be drawn and conduct will not necessarily be explained away by the prevailing culture in the workplace. In relation to the allegations against AW, in fairness to him, where he has responded that the conduct was for the purpose of banter or joking around, the Investigator has considered the conduct in the context of a workplace where there is a culture of that type of behaviour. The Investigator has then 1 Investigation report filed with the Respondent's submissions of 28 October 2020 at 4.132-3 and 4.137. -- 10 of 24 -- 11 considered how others responded to or felt about the conduct as well as considering the reasonable person test.2 [51] I am of the view that the investigation and interview process was properly conducted and that the investigator has addressed the relevant contextual information and concerns raised by the Appellant. [52] With the exception of Allegation 2, which I address below, I am of the view that a proper process has been followed and natural justice has been afforded to the Appellant. I am satisfied that the Appellant's concerns about the process and the investigation have been adequately addressed by the Department and by the investigator as part of the investigation report. Was it fair and reasonable to substantiate the allegations/alternative allegations? Allegation one (Alternative Allegation) [53] I have reviewed the investigation report which sets out the evidence considered in relation to allegation one. The investigator finds that the evidence makes the allegation capable of being substantiated. [54] The disciplinary finding letter notes that the decision maker has considered the investigation findings and the Appellant's submissions. the Appellant's response acknowledged that he touched MSA on the upper leg with a pen and that it was part of the usual 'banter' between colleagues. [55] In his submissions accompanying this appeal, the Appellant says that upon reflection, he understands that his action was not appropriate, and he deeply regrets this. He says that MRB as a direct witness and officer-in-charge did not say anything to him at the time or raise any concern. He also says that he had no indication from MSA that she was uncomfortable, and she continued to seek out his companionship after the incident, including after work hours. [56] The delegate determined that there was sufficient evidence to support a view that the Appellant's behaviour was neither invited nor welcome. The decision maker said: …I do not accept that your responsibility for your conduct is diminished by you not having been explicitly advised at the time that the behaviour was considered inappropriate. You are a supervisor, a long serving employee and a senior member of this department. You have a responsibility to uphold and promote acceptable workplace behaviour at all times, irrespective of who is assigned as the officer in charge on a vessel. 2 Investigation report filed with Respondent submissions 28 October 2020 at 4.97 and 4.98. -- 11 of 24 -- 12 While I consider that there is evidence that supports a conclusion that you touched MSA on the bottom, by your own admissions your conduct in touching MSA (in any manner) was inappropriate.3 [57] The final disciplinary outcome letter dated 28 September 2020 states that following the Appellant's response letter, his concerns were considered, noting: "You acknowledge touching MSA which is not appropriate workplace behaviour and I do not consider this to be friendly banter under any circumstances". [58] I have considered all of the material provided to me with regard to Allegation 1 (including submissions, show cause letters and responses and the relevant section of the investigation report) and the delegate's finding of an 'alternative allegation' and I have found no information which would lead me to displace the delegate's finding that the alternative allegation is substantiated and that it provides grounds of discipline under the PS Act namely the contravention without reasonable excuse of cl 1.5(a) of the Code: 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 relations with them, and recognise that others have the right to hold views which may differ from our own. Allegation two [59] Allegation two differs from the other allegations in that it relates to an unspecified number of events over a series of days. [60] In Schedule 1 – Allegations and Particulars which was attached to the correspondence of 6 February 2020, allegation two was set out as follows: Allegation 2 On several occasions throughout the deployment on the Reef Ranger between 8 and 15 November 2019, you touched MSA on the bottom. Particulars: (a) you touched, grabbed or slapped MSA on the bottom; and (b) this conduct would occur sometimes twice a day during the deployment [61] In his appeal notice, the Appellant strongly denies this allegation and says that he has been forthcoming with the investigator regarding any 'touching' of MSA, specifically, he recalls several occasions of touching MSA. 3 Second show cause letter dated 12 August 2020. -- 12 of 24 -- 13 [62] The Appellant says that the evidence provided by MSA and MSE was 'in very broad terms, lacking dates, locations, alleged conduct and corroborating witnesses'. Although MSA stated that the touching took place in front of other people, the Appellant says that no one except MSE said they saw anything of this nature, even when prompted by the investigator. [63] The Appellant further says that MSA did not give any further evidence that there were other instances except for allegation one, and at one point said to the investigator, "not…not specifically, like I'm sure you can prompt me".4 the Appellant says that there has been a serious miscarriage of justice for the Department to conclude that the allegation was substantiated where there are no details of where or when this allegedly occurred. He says that to make such a serious finding in the absence of clear evidence and relying only on the vague recollection of one witness, MSE, undermines a fair and just process. [64] In the disciplinary findings letter dated 12 August 2020, the delegate noted the Appellant's submissions and the importance of careful consideration of the evidence, particularly with a serious allegation like this and said: • Although not specific, MSA does confirm to being touched on the bottom by you on several occasions throughout the deployment. MSA goes on to explain that these incidents occurred 'maybe like twice a day…probably at most on a bad day.' • Further, the evidence provided by MSE as a direct witness is clear, she witnessed you touching MSA on the bottom on multiple occasions in multiple locations throughout the deployment. Your own evidence in the investigation report recounts numerous incidents where you admit to touching MSA by hugging or putting your arms around her. [65] The delegate determined to accept the evidence of MSA and MSE. This appears to be based on an acceptance of the investigator's conclusion that MSA and MSE could not give more specific details being due to the length of the deployment and routine tasks. The delegate said that the investigator's conclusions were reasonable and plausible given the circumstances surrounding this allegation. [66] After further consideration of the Appellant's response letter dated 7 September 2020, the delegate says with regard to allegation two: "there is enough evidence to suggest that you did touch MSA on the bottom regularly, (at least daily) on the accounts of MSA and MSE". [67] The investigation report deals with allegation two from pages 132 – 163. I have considered the statements of witnesses and the analysis of the investigator. I have also reviewed all information provided with regard to allegation two in the submissions and the show cause process. 4 Investigation report filed with Respondents submissions 28 October 2020 at page 156. -- 13 of 24 -- 14 [68] The witnesses involved were able to give specific and detailed accounts of the other occasions that touching took place, for example with regard to allegation one and allegation four. the Appellant himself provided the investigator and the decision maker with a list of occasions where he recalled touching MSA. [69] The investigator concludes this allegation in the investigation report with the following comments: The strength of evidence necessary to substantiate an allegation of this seriousness needs to be sufficiently robust. This is not a 'he said', 'she said' scenario. There is a credible witness who has repeatedly reported and confirmed witnessing AW touch MSA on the bottom during the deployment. The evidence of MSE and MSA has been definite that the conduct occurred, albeit indefinite about where and when it occurred (which has been explained). The Investigator has a reasonable degree of satisfaction that the alleged conduct has occurred and that AW did touch MSA's bottom on several occasions on the Deployment. [70] The allegation is of a serious nature and should have contained more detailed particulars if it were to be put to the Appellant as a part of the investigation. Natural justice dictates that the Appellant should 'know the case he has to answer' and the particulars of the allegation did not allow him to do this. [71] However, the allegation was investigated in the terms it was put to the Appellant and a finding was made. [72] In the case of Briginshaw v Briginshaw, Dixon J considered the balance of probabilities as a standard of proof: The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may held according to indefinite gradations of certainty; and this had led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters, "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.5 5 Briginshaw v Briginshaw (1938) 60 CLR 336, 361-362. -- 14 of 24 -- 15 [73] The evidence with the regard to this particular allegation suggests it is possible that some form of behaviour occurred as alleged. While it is the case that the evidence regarding the other allegations pertaining to interactions between the Appellant and MSA establishes that inappropriate behaviour occurred, I am not persuaded that the evidence gathered with regard to this allegation is sufficient to establish it on the balance of probabilities. [74] The finding that allegation two was substantiated is set aside, as is the subsequent finding regarding grounds for discipline arising from allegation two. Allegation three [75] Allegation three in the show cause process is considered as allegation five in the investigation report. [76] In his appeal notice, the Appellant admits saying words to that effect and accepts that this was not appropriate. The Appellant points to MSA's behaviour throughout the deployment which he says 'was playful, she was singing and dancing, and touching and showing her body. This included her calling attention to how hard her own body was several times'. The Appellant also points to MSA's statement to the Acting Principle Ranger that she was 'confident the behaviour was not coming from a place of ill-intent, rather misjudgement and in the context of friendly banter'. [77] The Appellant says insufficient weight has been given to the context of the comment. He says it is noteworthy that MSA continued to pursue his company during and after work hours in the days after this incident. [78] In the disciplinary decision letter dated 12 August 2020, the delegate says: I have carefully considered the information available to me and note, in particular; • you admit to making a comment to that effect (although not those exact words) to MSA; • you explain that the context in which you made the comment needs to be considered; and • you accept that even though you made the comment, which was critical of your own appearance, it was an inappropriate and offensive comment to make. I accept your admission of the alleged conduct, however, taking into account your role as a Ranger in Charge, I do not consider that your conduct in making inappropriate comments about a colleague was acceptable, regardless of the context you describe. [79] I have considered all information available regarding this allegation, including that the Appellant acknowledges that he did make the comments subject of the allegation. I have considered the context the Appellant says the comments were made in, and the investigator and delegate's consideration of the Appellant's explanation. -- 15 of 24 -- 16 [80] There is no information before me to disturb the delegate's finding that allegation three is substantiated and provides grounds for discipline under the PS Act namely the contravention without reasonable excuse of cl 1.5(a) of the Code, as outlined above at [58]. Allegation four – Alternative Allegation [81] Allegation four is considered in the investigation report as allegation six and is set out from page 181 to 207. [82] The analysis of the evidence is detailed and I note that the investigator approaches the allegation as one which is very serious and that the standard of proof in substantiating such an allegation is high. [83] The Appellant acknowledges that he did have an interaction with MSA which involved an 'awkward hug' and states that she was 'very intoxicated'. The delegate refers to the investigator's finding on page 206 of the report: AW says that he was not intoxicated and has a 'good memory' of the night but does recall MSA trying to get up or wriggle out of his arms when he hugged her or put his arms around her.6 [84] The Appellant disputes MSE's witness account and says that she did not have a clear view of the interaction. the Appellant also notes that MSE also admitted to consuming alcohol that night, as did every person on board. the Appellant said that he had no reason to believe that MSA had any concerns about his behaviour and that he was exercising a duty of care to her because she was so upset. [85] The Appellant says that he is concerned about MSA's credibility as to specifics of the night as she had told the investigator that there were things she did not remember and that she was intoxicated. [86] The Appellant points to 'supporting evidence' that MSA followed him around during and after work hours, including the night before this particular event when he was fishing alone off the deck and MSA sought him out for companionship, sat close to him and chatted. [87] The Appellant's appeal notice states, "I recall having my arm over the back of her shoulders, but I did not impede her from standing up. This allegation is very serious and the evidence does not support it". [88] The disciplinary decision letter sets out the information the Appellant had provided in the show cause process regarding this allegation. The delegate responds to the 6 See further at paragraph [90]. -- 16 of 24 -- 17 Appellant's contention that there is no line of sight from the wheelhouse by stating that there is a clear line of sight from the wheelhouse to the waterline in front of the boat. [89] The delegate determined to make a finding of an alternative allegation after stating: All evidence (including the hearsay from those who received the information after the event) indicates that MSA was upset and/or crying and you went to comfort her. MSA and MSE claim that she tried to pull away while you, in some manner, attempted to stop her from leaving. I am also persuaded by the investigator's finding on page 206 of the report: AW says that he was not intoxicated and has a 'good memory' of the night but does recall MSA trying to get up or wriggle out of his arms when he hugged her or put his arms around her. [90] In the Appellant's response letter of 7 September 2020 he states that the report has been misquoted with regard to him stating that he 'does recall MSA trying to get up or wriggle out of his arms when he hugged her or put his arms around her'. In fact, the Appellant says that he said he did not recall this. [91] In the final disciplinary letter, the delegate says: • I have checked the transcript and can verify that you in fact stated that you 'did not recall her doing that' when asked if MSA tried to wiggle out of your arms when you hugged her; • despite the above, there is still plausible evidence from MSA and MSE that she attempted to pull away and your own evidence admits that you did in fact hug MSA on this occasion as alleged; and • I have no reason to doubt MSE's evidence that she did view the incident from the wheelhouse and it is more likely than not that this did occur. [92] It is clear that the delegate has given consideration to all of the available material and that this has resulted in a determination to substitute allegation four with the alternative allegation. I am of the view that the evidence supports the finding of an alternative allegation. There has been no material put before me which disrupts the delegate's finding that the alternative allegation was substantiated and that the conduct provides grounds for discipline under the PS Act namely the contravention without reasonable excuse of cl 1.5(b) of the Code: 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: … b. ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment. -- 17 of 24 -- 18 Allegation six [93] Allegation six is considered as allegation 13 in the investigation report, pages 302-362. [94] The investigator undertook detailed interviews with relevant parties and the relevant parts of the interviews are abstracted at this section of the report. The investigator notes that some of the material considered also relates to what was allegation 12 in the report as there is some crossover between the witness statements. [95] The investigation finds that while some aspects of the original particulars for this allegation are not able to be substantiated, that the evidence substantiates that the Appellant was aggressive and intimidating towards MRB. [96] The Appellant's appeal notice states that he admits the interaction happened with MRB when he went to ask him why MRG was so upset and had tendered his resignation. He says that he was frustrated and perplexed with all the sudden drama on board, some of which he had no knowledge of who or how it started. the Appellant makes reference to the intoxication of staff on board that night and says that "this failure on the part of the leaders present appears to have been completely overlooked in the investigation". [97] The Appellant goes on to say: In circumstances where the leaders had acquiesced in the staff becoming intoxicated, I suggest that it is somewhat understandable that when I heard of the late-night resignation of a long-standing employee (MRG), that I express my utter surprise about this to the Officer in Charge, perhaps even using expletives. Nonetheless, I do fully admit that my behaviour was unbecoming of my position and I regret this. I have asked to write MRB a letter of regret. [98] I note that in the finding letter dated 12 August 2020, the delegate states the following with regard to allegation six: I have carefully considered the information available to me and note, in particular: • you admit that an interaction occurred with MRB in the hallway to the entrance of the wheelhouse; • you admit that you most probably swore at MRB; • you point out that with all staff participating in drinking, those in charge failed to take steps to control the level of drinking activity. I do not accept that this behaviour would be tolerated in any circumstance, no matter what the levels of intoxication might have been at the time. I understand that you may have been surprised to hear about MRG's resignation, however I disagree that this in any way excuses your behaviour towards MRB especially as he was the Officer in Charge at the time. [99] I have considered all of the material available to me with regard to allegation six. The evidence with regard to this allegation, including the Appellant's own recollection of the -- 18 of 24 -- 19 incident supports the delegate's finding that the allegation is substantiated and provides grounds of discipline under the PS Act namely the contravention without reasonable excuse of cl 1.5(a) of the Code as outlined above at [58]. Allegation eight [100] I note that on page 55, the investigator describes the Appellant's decision not to respond to questions regarding the Lizard Island allegations. [101] I further note that the Appellant provided information about the Lizard Island allegations following the initial interview. [102] The background evidence regarding the Lizard Island Deployment is set out at paragraphs 4.367 to 4.385 of the report. This allegation is dealt with in the investigation report as allegation 15. [103] The Appellant's appeal submissions raise a concern about how the person who raised the matters subject of this allegation came to know that an investigation was taking place. He says that there has been a breach in confidentiality and that to his knowledge no action has been taken. The Appellant raises concerns about the amount of time that has elapsed between these events and them being raised. He is also concerned about collusion and the nature of the evidence presented. [104] In his appeal submissions, the Appellant states: I splashed in the shallow water, out of sight of the patrons at the bar and my colleagues, in an area of the beach where bar patrons often swim. This is a common, acknowledged swimming area. It is secluded from bar patrons by vegetation and is not visible from the bar, being some 80m away. To me this is no different to splashing in a resort swimming pool after hours, and I cannot understand why MSC and MSD decided this was so offensive. [105] The Appellant provided information with regard to Allegation 8 in his show cause response dated 20 July 2020. This information was taken into account by the delegate who said: I have carefully considered the information available to me and note, in particular: • you admit that you swam in the ocean after dinner; • you removed your clothes and swam in your underwear (at no time were you naked); • you may have invited the others but did not encourage skinny dipping; • you admit that swimming after a few drinks may not necessarily be safe; and • you were unaware that your conduct made MSC and MSD uncomfortable. I agree that swimming in the ocean after having a few drinks is not safe and is not a responsible act by a supervisor of the department whilst on a work trip. In addition, encouraging or inviting others to join you in this unsafe environment is inappropriate and it is expected that you model and promote appropriate behaviour, not unsafe conduct, at all times, including while on work trips. -- 19 of 24 -- 20 [106] Following consideration of the Appellant's response letter of 7 September 2020 where he provided information that he was not completely naked and that he believes his reputation has been tarnished, the delegate said, in the disciplinary decision letter: • Although you state that you did not get completely naked when swimming at Lizard Island, it is still inappropriate to go swimming, in your underwear, in front of colleagues. I also note the safety risks associated with such behaviour. [107] I note the Appellant's submission that his actions were no different to swimming in a resort swimming pool after hours. While it is the case that swimming attire and underwear are in some cases not very different in terms of the amount of flesh they expose, there is a difference between going swimming with colleagues after hours on a work trip in swimwear and disrobing after dinner to swim in one's underwear in front of other people, both work colleagues and members of the public/staff of the resort. [108] With regard to the Appellant's contention that the events happened 'after hours', I also note that the department's workplace behaviour policy specifically states: 3. Principles The Department is committed to creating a positive, ethical and healthy workplace culture which is compatible with human rights. This includes a workplace culture free from workplace bullying, sexual harassment and unlawful discrimination where: … • All employees have the right to work in an environment free from intimidation, threat, humiliation, violence or aggression and such inappropriate behaviour will not be tolerated. This includes upholding standards of appropriate behaviour outlined in this policy, while on work-related trips or at work-related functions or events. … 7. Responsibilities Employees • Model appropriate behaviour, treat others with dignity and respect and promote a positive, ethical and healthy workplace. … Managers and supervisors • Model and promote appropriate behaviour … • Monitor the workplace to ensure acceptable standards of conduct are observed. [109] Clause 1.5(d) of the Code provides: 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: -- 20 of 24 -- 21 d. ensure our private conduct maintains the integrity of the public service in our ability to perform our duties. [110] The Appellant admits that he removed his clothing and swam in the ocean in his underwear while under the influence of alcohol. He also says that he may have invited others to join him. The events took place during a work trip and after a dinner with work colleagues and fall within both the Department's workplace behaviour policy and the relevant section of the Code. [111] Having given consideration to all material available to me regarding allegation eight, there is no material which would cause me to disturb the delegate's determination that the allegation is substantiated and provides grounds for discipline under the PS Act. Was the decision to implement the disciplinary action fair and reasonable? [112] The Appellant provided detailed submissions regarding the penalty being imposed on him. He submits that he has been forthcoming, co-operative and responsive to the investigation. Where he fell short of the expectations of his role, he has acknowledged this and expressed his regret and asked to write a letter of apology to those involved. [113] The Appellant doesn’t consider that the Departmental penalties are justifiable given the matters he has addressed in his response, the personal toll of the investigation and findings and the evidence gathered. [114] The Appellant says that the penalty proposed by the Department is harsh, unjust and unreasonable. The financial impacts he has already experienced are significant and includes the loss of a 'once-in-a-lifetime' AO7 opportunity in Papua New Guinea which he was due to commence a few days after he was suspended, the loss of overtime and other opportunities. The Appellant says he has also funded legal representation to "defend myself against the full force of the Department, which engaged an HR lawyer as an investigator before it even began communicating with me about the allegations".7 [115] The Appellant says that the emotional damage he has suffered has been significant and has required him to seek ongoing care and support for his mental health. [116] The proposed alternative penalty put forward by the Appellant is that the Department reduce his pay increment by one paypoint (to 006/3) and transfer him into a different section of marine parks where he would not be supervising staff for a period of six months in a compliance or infrastructure role where he believes his skills are suited and needed after which time he would return to his current position as Ranger in Charge. 7 Appellant appeal notice filed 14 October 2020. -- 21 of 24 -- 22 [117] The Appellant says that he has spent the last almost ten years obtaining specialist qualifications for the benefit of the Department in marine conservation and is one of few commercial divers. Removing him from the marine parks division would substantially decrease the human capital he can contribute to the Department's resources in the marine parks unit. [118] The Appellant submits that he has already suffered anxiety and stress during the course of the investigation and feels he cannot deal with a big change like having to move to a new work location and start learning about a completely new area and work environment for a 12 month period. [119] Finally, the Appellant says he believes the policies, procedures and training relevant to staff living, working and relaxing in very close quarters on live-aboard vessels for extended periods are lacking, and in the circumstances, this should be taken into account as a mitigating factor. [120] In addition to the Appellant's submissions made in support of this appeal, I have reviewed the extensive submissions made by the Appellant's lawyers on his behalf during the disciplinary process. [121] As is outlined above at paragraphs [14] - [16] the final disciplinary action determined by the delegate was reduced from what was proposed in the final show cause letter. It was determined that the Appellant's wage reduction would be to OO6/1 instead of OO5/4 and that he would remain at that level for a period of six months before the ability to increment up to OO6/2 after six months if there are no performance issues and to increment as per normal after this. [122] The delegate said that while the Appellant asserts that he has been penalised by the loss of an AO7 opportunity, higher duties is not an entitlement and is never guaranteed. [123] The delegate further said "while I appreciate your advice of a commitment of no repeat occurrences, this does not absolve you of responsibility for what are serious and significant substantiated allegations". [124] The delegate determined to maintain the 12 month transfer to a terrestrial position, located in Cairns, with no supervisory responsibility. [125] Relevantly, the delegate said, I believe these actions are reasonable and appropriate having considered the serious nature of this matter, the repeated instances of the behaviour and failure to comply with the department's expectations as a supervisor. [126] The Department says that the Appellant has failed to provide any new information with respect to the disciplinary allegations or his responses throughout the appeal process and refers to the disciplinary letters dated 12 August 2020 and 28 September 2020. -- 22 of 24 -- 23 [127] The Department rejects the Appellant's assertion that his culpability is diminished because no-one explicitly told him his conduct towards his subordinate was unwelcome/inappropriate. [128] The Department says it is reasonable to expect a long-standing employee and supervisor to understand and behave appropriately and in accordance with the Code and departmental policies, particularly the Workplace Behaviour Policy. [129] The Department says that the penalty is fair and reasonable given the seriousness of the findings, including the corrupt conduct referral and multiple breaches of the Code. [130] The delegate reduced the original proposed penalty to a lesser penalty after taking into account the Appellant's work performance and history, his remorse, and the emotional distress, perceived reputational damage and financial loss. [131] Further, the Department says that the Appellant's suggestion of a number of letters of regret and assisting with drafting policy is not considered an appropriate or measured penalty. The Department says this is reflective of a failure to take responsibility for his actions and the impact they have had on his subordinate and others involved in the process. [132] I have considered all of the material and submissions provided to me. I have reviewed the available evidence upon which allegations one, three, four, six and eight were substantiated on the balance of probabilities, the explanations of the Appellant as to the circumstances surrounding his behaviour and the financial impact of the penalty. [133] In circumstances where I have determined that allegation two, as it was put to the Appellant in this process, is set aside, I have considered whether the disciplinary penalty decision remains appropriate [134] I have no knowledge of what action has been taken with regard to the conduct of others involved in the deployment where the conduct subject of allegations one-six took place. However, I wish to note that the Appellant is and was responsible for his conduct in the workplace. An absence of particular policies regarding conduct while on deployment or after hours while on work trips is a poor excuse for a senior employee to depart from the standards expected of public servants under the Code. [135] Notwithstanding the removal of allegation two, the remaining allegations are of a serious nature and represent breaches of the Code constituting a ground for discipline under the PS Act. The disciplinary finding relates to a number of behaviours and occurrences that are of particular seriousness and significance when taken in the context of the Appellant's role as a Ranger in Charge. -- 23 of 24 -- 24 [136] In the circumstances and given the nature of the substantiated conduct, I find that the disciplinary penalty determined by the delegate is fair and reasonable. [137] With the exception of the finding regarding allegation two, the decision is confirmed. -- 24 of 24 --