QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Waite v State of Queensland (Department of Environment and Science) [2024] QIRC 144
	
PARTIES:
	Waite, Bryce
(Appellant)

v

State of Queensland (Department of Environment and Science)
(Respondent)
	
CASE NO.:
	PSA/2023/81
	
PROCEEDING:

DELIVERED ON:	Public Sector Appeal – Disciplinary Decision

11 June 2024
	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER:	1.	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. 
2.	The file not be subject to search and copy without leave of the Commission. 
	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY– Public Sector Appeal – where allegation substantiated – where disciplinary finding made pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld) – whether disciplinary finding was fair and reasonable – application for suppression order – consideration of principles of open justice – exercise of discretion to suppress identifying information – application for suppression order granted.
	
LEGISLATION AND OTHER INSTRUMENTS:	Code of Conduct for the Queensland Public Service

Discipline Directive 05/23, cl 5, cl 7, cl 9

Human Rights Act 2019 (Qld), s 8, s 21

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Industrial Relations Tribunal Rules 2011 (Qld), r 97

Public Sector Act 2022 (Qld), s 91
	
CASES:	Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Comcare v Banerji [2019] HCA 23

Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167

Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255

Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317

J v L & A Services Pty Ltd [1995] 2 Qd R 10

Mathieu v Higgins [2020] QSC 209
	
Reasons for Decision

Introduction

[1]	Mr Bryce Waite ('the Appellant') is employed by the State of Queensland (Department of Environment and Science) ('the Respondent') as an Agriculture Officer, Reef Compliance and Regulation, Department of Environment and Science.

[2]	Mr Scott Sullivan, Executive Director, Minerals and Northern Compliance, ('the Decision Maker') mailed correspondence on 1 March 2023 asking the Appellant to show cause on the following allegation -  

It is alleged that you made a racist comment to [the Complainant] on the evening of 22 February 2023. 
	
and

that if proven the above allegation provides grounds for discipline in accordance with section 91(1)(b) of the PS Act in that you may have been guilty of misconduct
 
[3]	Following receipt of the Appellant's response, the Decision Maker emailed correspondence on 31 March 2023 to the Appellant advising that the allegation had been substantiated and that he had made a disciplinary finding that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct pursuant to s 91(1)(b) of the Public Sector Act 2022 ('PS Act').

[4]	On 21 April 2023, the Appellant filed an appeal notice in the Industrial Registry appealing against a disciplinary decision. 

[5]	The issue for determination is whether the disciplinary finding was fair and reasonable. 

Legislative Framework

[6]	Section 91 of the PS Act provides the following grounds for discipline:

91       Grounds for discipline
 
(1)	A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

(a)	engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

(b)	been guilty of misconduct; or

(c)	been absent from duty without approved leave and without reasonable excuse; or

(d)	contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or

(e)	used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or

(f)	contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement—

(i)	failing to disclose a serious disciplinary action; or

(ii)	giving false or misleading information; or

(g)	contravened, without reasonable excuse, a provision of—

(i)	this Act, other than section 39 or 40; or

(ii)	another Act that applies to the employee in relation to the employee's employment; or

(h)	contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

(2)	A disciplinary ground arises when the act or omission constituting the ground is done or made.

(3)	Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.

(4)	To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.

(5)	In this section—
           
misconduct means—

(a)	inappropriate or improper conduct in an official capacity; or

(b)	inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee's employment in the public sector

relevant standard of conduct —

(a)	for a public sector employee, means—

(i)	a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(ii)	a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and

(b)	for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and

(c)	for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

[7]	Clause 5.3 of Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector: 

5.3	Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.

[8]	Clause 7 of the Directive provides the requirements to commence a discipline process:
 
7.1	Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91. 

7.2	Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

a.	the seriousness of the employee's personal conduct and/or work performance, and

b.	whether the matter should be resolved through management action instead, and

c.	whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and

d.	whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and

e.	whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and

f.	if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and

g.	whether further information is required to make a decision to commence a disciplinary process, and

h.	for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

Appeal principles

[9]	The appeal must be decided by reviewing the decision appealed against. As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. 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, 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. 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 provided the following reasons for appeal: 

The Disciplinary Finding relates to my conduct in a private capacity outside of work, however I disagree and dispute that my conduct has reflected seriously and adversely on the Department (my employer). To the best of my knowledge, and as per the wording of the allegations, no members of the public were aware of my conduct and I do not believe there is any evidence to suggest, on the balance of probabilities, that my conduct has actually seriously and adversely reflected on the Department. I contend that I was off duty, I was not in any clothing that suggested that I was a Departmental employee, and I did not purport to anyone that I was acting as a Departmental employee at the time of the incident. I therefore contend it is unfair and unreasonable for the Department to substantiate the allegation on the basis without referring to any evidence to support the claim that my conduct has reflected seriously and adversely upon the Department. 

I also contend it is unfair and unreasonable for the Department to conclude that termination of my employment is not harsh, unjust and unreasonable in the circumstances. The Department acknowledges in their decision that I have no disciplinary or serious performance history. It is unclear to me what evidence they are using to conclude that a penalty less severe than termination of my employment would adequately address this matter, for example a financial or pay increment penalty. Clause 9.5(e) of the Public Sector Commission Discipline (Directive 05/23) indicates that termination of my employment should only be mentioned in the Show Cause process if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated. I contend that the chief executive has unreasonably concluded that termination of my employment is appropriate in the circumstances. 

It is also inconsistent logic that the Department claims that I have "failed to show genuine remorse" as a reason for why termination of my employment is appropriate, however they earlier in the same letter states [sic] "whether or not you gave a genuine apology to [the Complainant] doesn't alter the fact that the offence occurred…" which seems to be a contradiction and may indicate that termination of my employment was a pre-determined outcome. I contend that I did apologise to [the Complainant] and I do hold remorse as I never intended to offend or upset her. I hold no ill will towards my colleagues and am seeking to maintain a professional working relationship with them all. 

The Department also claims that my response does not show my potential for modified behaviour in the work unit or elsewhere, however I was never asked in the previous correspondence to demonstrate this. The Department does not seem to refer to a pattern of behaviour or any evidence to suggest my potential for modified behaviour and therefore I believe this is an unfair and unreasonable conclusion to make, especially considering the gravity and severity of the penalty being proposed. 

I seek the decision appealed against be set aside and a substitute decision be issued proposing a different action. 

Submissions

[13]	The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. 

Appellant's submissions

[14]	In support of the Appeal, the Appellant submits the following in summary: 

•	There is no evidence to substantiate the allegation in a manner that would suggest that the Appellant is liable for discipline. The Complainant made a statement in relation to the situation on 22 February 2023 and has not stated that the Appellant made a racist comment towards the Complainant.

•	The Witness has made a witness statement in relation to the alleged events on the 22 February and has not stated or corroborated that the Appellant made a racist comment towards the Complainant. The Witness does not appear to indicate they heard any racist comment made at all.

•	The witness statement was dated 28 February 2023 and was not provided to the Appellant with the first correspondence (required as per Discipline Directive 05/23 clause 9.3(d) (dated 1 March 2023)), and yet is referred as evidence in the letter dated 31 March 2023. Whether this information was withheld intentionally or accidentally, the Respondent has denied the Appellant the right to Natural Justice and to adequately respond to particulars of the allegations.

•	The Appellant disagrees and disputes that his conduct has reflected seriously and adversely on the Respondent. To the best of the Appellant's knowledge, and as per the wording of the allegations, no members of the public were aware of his alleged conduct and he does not believe there is any evidence to suggest, on the balance of probabilities, that his misconduct has actually seriously and adversely reflected on the Respondent. The Appellant was off duty and wearing normal civilian clothing and was not carrying out any official duties. As per the Respondent's evidence, even the Witness sitting close by did not seem to hear the alleged statement, and therefore the Appellant contends that (on the balance of probabilities) no other persons would have heard the alleged statement either.

•	The Appellant was not performing duties on behalf of the Respondent at the time of the incident, and the Appellant was not representing the Queensland Government (e.g. the Appellant was not in attendance at a work-related social event) and so he is not liable for discipline under the Queensland Public Sector Code of Conduct which specifies that "The Code applies at all times when we are performing official duties including when we are representing the Queensland Government at conferences, training events, on business trips and attending work-related social events".

•	The Code of Conduct did not apply to an after-work social event unrelated to work where there was no evidence to suggest that the Appellant was representing the Queensland Government or even identifiable as a Queensland Public Sector employee.

•	It is unfair and unreasonable for the Respondent to substantiate the allegation without referring to any evidence to support the claim that the Appellant's conduct has reflected seriously and adversely upon the Respondent. 

•	The decision-maker has not correctly applied the "balance of probabilities" and seems to have preferred the Complainant's version of events without any explanation as to why the Complainant's version of event was weighted more than the Appellant's.

•	The Appellant does not have any disciplinary or formal performance management history for the Respondent to rely upon and the Respondent does not appear to be claiming that the Appellant has a pattern of this type of alleged behaviour in order to discount the Appellant's version of events in this matter. The Appellant maintains that he was involved in what may be taken as a possible controversial debate/conversation and at no time did he make a racist comment to the Complainant.

•	The Appellant acknowledges the Complainant's statement and notes they do not mention that the Appellant made a racist comment to them, just the word was used in conversation.

•	The Appellant's human rights have been impacted by this decision, in particular section 21(1) and (2), his right to hold an opinion without interference and freedom of expression to impart information and ideas of all kinds:

I concede I may have expressed my ideas in a poor fashion on this occasion. Again, I can only apologise for this with deep regret in causing [the Complainant] any distress. 

In addressing this I have been undertaking counselling with the departments EAP service via Benestar and further counselling sessions with Strive occupational rehabilitation. Both of which I have further session [sic] booked in to assist me moving forward and gaining learning perspectives.

I am committed to undertaking any further training or counselling as required by my employer to demonstrate my capacity to modify my behaviour. 

•	The Appellant contends that the Chief Executive of the Respondent has unreasonably concluded that it is appropriate for the allegation to be substantiated in the circumstances. It is also inconsistent logic that the Respondent claims that the Appellant "failed to show genuine remorse" as a reason for substantiating the allegation. However, they state in the same letter, "whether or not [the Appellant] gave a genuine apology to [the Complainant] doesn't alter the fact that the offence occurred…". The Appellant submits that the statement 'seems to be a contradiction and may indicate that this was a pre-determined outcome' as the Appellant's apology does not appear to have been adequately considered by the decision-maker.

•	The Appellant also states that the Respondent's claim that the Appellant's response does not show his potential for modified behaviour is an unfair and unreasonable conclusion to make considering the gravity and severity of the penalty being proposed.

•	The Appellant has maintained a dedicated and professional 30 plus year career with the Respondent and the Queensland Public Service as well as Queensland and Victorian State and Local Governments. The Appellant is the recipient of both the Victoria Police Service Medal and National Service Medal.

•	This incident does not reflect the broader history of the Appellant's professional conduct throughout his career and is an isolated incident.

•	The Appellant has not had any previous disciplinary action/findings made or taken against him in over 30 years of employment with Federal, State or Local Governments.

•	The Appellant puts forward other more appropriate action that should have been followed by the Respondent. Management action should have been considered in accordance with the Directive clauses 4.7 and 4.8.

•	The Appellant highlights that the disciplinary process is designed to manage risk to the department and to develop staff and is not purely a punitive tool. The Appellant proposes that an alternative course of action be considered that is less severe: 

I note that clause 4.8 of the Public Sector Commission's Discipline (Directive 05/23) states that, "Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable circumstances."

•	The Appellant seeks that the decision appealed against be set aside and a substitute decision be issued proposing a different action. 

Respondent's Submissions 

[15]	The Respondent submits that the only issue for determination is the question of whether the discipline finding is fair and reasonable on the evidence before the Decision Maker at the time the decision was made.

[16]	The Respondent further submits, in summary, that:

•	The decision made by the Decision Maker to find the allegation was substantiated is fair and reasonable based on the evidence before them, including the statements made by the Appellant admitting to the conduct which is the subject of the discipline process.

•	The Appellant was at a work dinner for the Reef Team. There is a clear connection to his employment. In the matter of Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 ('Hutchison'), Commissioner Pidgeon found that:

It is not necessarily the publicising of the conduct that is the problem, it is the fact of the conduct itself. It is enough that the nature of the conduct is such that it reflects seriously and adversely on the public service.

•	The Appellant was provided 14 days to respond to the show cause and an undated response was received by the Decision Maker on 9 March 2023 - 

In that response the appellant admitted to using the term. They further argued that the term was taken out of context – which assumes there is some context in which the use of that term is acceptable. In the department's submissions, there is not. 

The appellant states that they did not make a racist comment towards or at the complainant. While we say that the Appellant was talking to the complainant, the specific or intended recipient of the word is irrelevant. 

•	The Appellant makes a point that he was not aware that the Complainant identifies as a First Nations person. In the Respondent's view, the use of the term is abhorrent and is unacceptable no matter how a person identifies. That the Appellant continues to argue that "it is just a word" clearly shows his lack of acceptance or any modicum of responsibility. In addition, the Appellant added that it was the Complainant's choice to join in the conversation, thereby, once again, blaming the Complainant for being offended — as if believing that if the conversation had remained only between the Appellant and the Witness, no one could have taken offense.

•	In the Appellant's response he states that "l am fully aware of my obligations in relation to appropriate behaviour in the workplace and whilst engaging with colleagues." The Respondent contests this view by the Appellant, given his repeated use of the term in his response, as well as seeking out a former colleague to let the Respondent know they would use the term regularly in their day-to-day conversations. The fact that another employer tolerated that term as a "coping mechanism" is an appalling reflection on that team and that employer and will never be considered by the Respondent as justification for its use. The Appellant argues that in this previous workforce, the team they worked in "banded together to disempower the term". They did not. They simply demonstrated that casual racism in that team was an acceptable, everyday occurrence.

•	The Appellant attempted to argue that as a Jewish person, he has no problem being called "a Jew'', somehow attempting to relate that to using the term in question. He even states that he is happy to be called a Jew. Calling someone a Jew is not anti-Semitic. It is the correct term for someone of the Jewish faith. It is a result of a person's religion. There are many derogatory terms for a person of the Jewish faith that they may not accept quite as readily.

•	The term used by the Appellant is not a description of a person's religion or faith -   

There is no definition of that word that does not commence with "a disparaging term..." or "a derogatory term...". It is not "just a word". It is described as a racial slur, and its origins relate to African slaves on United States farms, human beings sold as property with no rights.

This department has a significant engagement with traditional owners across the state, as employees and as stakeholders, and to suggest that any employee using that term would be acceptable under any circumstance is completely misguided.

•	The Appellant refers to staff using profanity in the workplace, likening that to the term he used – and continued to use and justify. They are not the same. To suggest that they are again fails to understand the gravity of the term and the position the Appellant holds in the public sector. 

•	The Appellant's argument that this process is adding to the mental stress he has suffered over a number of years for a variety of reasons is not relevant. He has not tried to justify his use of the term due to their stress. And there seems to be no justification that the term was used as "stress relief". It was, pure and simple, a racist term he used in public with work colleagues.

•	The Appellant being disciplined for his behaviour is reasonable in the circumstances. The Respondent would not cease the discipline process because of other events that happened in the Appellant's life. His circumstances and issues in his personal life do not excuse his responsibilities to be appropriate and respectful in all communications and to adhere to the Code of Conduct for the Queensland Public Service.

•	The Appellant argues that the Decision Maker is contradictory in finding that the Appellant failed to show genuine remorse, and that he never intended to offend or upset the Complainant. The Appellant's apology amounted to suggesting he was sorry if the Complainant was offended. That is blaming the Complainant for feeling offended. That is not a genuine apology. At no stage has the Appellant shown genuine remorse — even in this appeal. That the Complainant was offended was somehow their fault — not the Appellant's, and certainly not due to the fact that the Appellant used "just a word" on several occasions.

•	The Appellant argues that his human rights have been "impacted" by the decision, in particular his right to hold an opinion and his right to freedom of speech. Neither of these rights are without limit. The Appellant's apparent ignorance of racial slurs and his belief that it is "just a word" are not a human right.

•	On 31 March 2023, the Decision Maker wrote to the Appellant, advising that the Appellant did not deny that the offensive and racist term was used (indeed, he admitted it repeatedly during his Show Cause Response), and rejecting any claim that a reasonable person could contemplate that the term could be used without it causing offence.

•	In addition, the Decision Maker found that the Appellant's behaviour was seen as a breach of the Respondent's resolute commitment to feeling safe at work, including work events, and that the Respondent has a zero tolerance for racism. The Decision Maker also found that the Appellant tried — repeatedly — to defend the behaviour in an effort to normalise his use of the offensive word.

•	The Respondent highlights that the Appellant submits that he seeks "the decision appealed against be set aside and a substitute decision be issued proposing a different action". The only decision the Appellant can challenge is the Decision Maker's finding that the allegation is substantiated.

•	On the basis of the Appellant's repeated admissions to his use of the term, both in his show cause response and in his submissions to this Commission, there is no basis to set aside the decision of the Decision Maker.

Appellant's Reply

[17]	The Appellant provided the following submissions in reply -  

•	The Respondent's reference to Hutchison is irrelevant as the circumstances in that matter are totally different.

•	The Appellant disputes that the dinner was work related, contending that -  

The impromptu meal was not; (a) organised by my employer, (b) paid for by my employer, (c) I was not identifiable as a Public Service employee, (d) not all the people at the dinner were Public Service Employees.  

•	The Appellant apologised to the Complainant as outlined in the Appellant's reply to the show cause notice referred to by Respondent. The Appellant clearly stated that he was sorry, and that the Appellant was sorry for offending the Complainant. The Complainant has interpreted this as a 'non apology', 'which is [their] opinion which I have no control of and one [they are] entitled to'.  

•	The Decision Maker stated 'The appellant's apology amounted to them suggesting they were sorry if the complainant was offended. That is blaming the complainant for feeling offended. That is not a genuine apology.'  The Appellant submits that this is an inaccurate interpretation of the conversation and one that the Decision Maker has put forward to support the Complainant and discounts the Appellant's recollection of the conversation. The Appellant submits that this is a very biased opinion and interpretation of facts.

•	The Decision Maker has stated, 'And at no stage has the appellant shown genuine remorse', yet in the show cause notice the Decision Maker acknowledged the fact that the Appellant apologised.   

•	The Appellant failed to see how the continuing reference to 'an apology' has any bearing on the allegation and a finding being substantiated on the balance of probabilities. 

Consideration

Suppression Decision

[18]	On 7 June 2023, the Respondent filed a 'Form 4 – Application in existing proceedings' seeking that the names of the Complainant and the Witness be suppressed in accordance with rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'). 

[19]	Rule 97 of the Rules is outlined as follows - 

97    Publishing decisions etc.

(1)	The registrar may publish on the QIRC website –

(a)	a decision of the court, commission, or registrar; and

(b)	the notice of the making or the amended of a bargaining instrument.

(2)	The registrar must, if the commission directs, publish an amendment of a bargaining instrument on the QIRC website.

Note -
For other documents the registrar must publish on the QIRC website, see sections 160, 161, 215, 230 and 459 of the Act.

(3)	The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –

(a)	withhold publication of a document; or

(b)	modify a document, before publication, in a way that does not affect the essence of the document.

[20]	In the case of J v L & A Services Pty Ltd (No 2) the following principles were established governing the exercise of discretion to issue suppression orders:

1.	Although there is a public interest in avoiding or minimising disadvantages to private citizens from public activities, paramount public interests in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings be open to the public and able to be reported and discussed publicly.

2.	The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…

3.	The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.

4.	No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.

5.	Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:

(a)	Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…

(b)	A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.

(c)	An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.

6.	... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…

[21]	The Respondent states that both individuals hold concerns for their personal safety and wellbeing should they be identified in the publication of this decision.

[22]	The Appellant filed submissions opposing the Application to suppress the name of the Complainant, however, I note that these submissions do not refer to the Witness. The Appellant submits that the Respondent's submissions fail to establish good reasons that outweigh the principle of open justice and there is no 'good reason to do so'. 

[23]	The Appellant submits that the cases of J v L & A Services Pty Ltd (No 2),  Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs), and Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd can be distinguished from this matter on their facts. 

[24]	The Respondent submits that both the Complainant and Witness have identified concerns over their mental health and feeling psychologically unsafe both following the incident and in considering their identities being linked to the published decision in this matter. 

[25]	In the matter of Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd, Vice-President O'Connor stated the following – 

"the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm."

[26]	 I note the decision of Deputy President Hartigan in Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) in which she stated the following – 

"Further, it is my practice, where possible and appropriate to do so, to limit the identifying details of a complainant in a public sector appeal."

[27]	I am satisfied that suppressing the names of the Complainant and the Witness will not affect the essence of the decision pursuant to rule 97(3)(b) of the Rules and that their mental health concerns provide good reason to do so in order to avoid harm. Accordingly, I have determined that the Complainant and the Witness will not be identified by name in these reasons. I have also determined that the file not be subject to search and copy without leave of the Commission. 

Substantive Decision

[28]	The decision that is the subject of this appeal is the decision by the Decision Maker to substantiate the allegation and make a disciplinary finding. The disciplinary action has not yet been determined and consequently is not a decision that can be appealed at this stage.

Allegation

[29]	The allegation put to the Complainant was outlined as follows – 

It is alleged that you made a racist comment to [the Complainant] on the evening of 22 February 2023

and

that if proven the above allegation provides grounds for discipline in accordance with section 91(1)(b) of the PS Act, in that you may have been guilty of misconduct. 

[30]	In the notice to show cause letter, the particulars of the allegation were outlined as follows – 

a)	On the evening of Wednesday 22 February 2023 at the Oxford Hotel in Rockhampton, you made a statement to [the Complainant] which included the phrase "my white nigger"

b)	When challenged about this statement you further stated words to the effect "what, it's just a word, nigger"

c)	When further questioned about your statements by [the Complainant] the following day on Thursday 23 February you told [the Complainant] you were "sorry you felt offended"

d)	When questioned about this incident by your supervisor … you admitted making a comment including the word "nigger". 

[31]	The Appellant submits that he did not make a racist comment to the Complainant but that he was in a conversation with the Witness when the word "nigger" was used. The Appellant contends that the Complainant overhead it and took it out of context. 

[32]	The decision states that the Appellant's assertion that the comment was made in conversation with the Witness and not the Complainant was denied by the Witness who stated, "I was not listening to any conversation when I heard [the Complainant] become quite upset to which I began listening to their conversation again". 

[33]	The decision considered the Appellant's submissions that the context in which he used the term was that his daughter and her friends used the term as a greeting. The decision reasonably determined that this context ignores the social and historical context of the term.

[34]	The decision also considered the Appellant's submissions regarding the First Nations status of the Complainant, determining that the fact that the Appellant was unaware of this status did not change the offensive nature of the term. This was a reasonable conclusion, as the term is offensive regardless of the race of the person to whom it is directed. 

[35]	The Decision Maker determined that the Appellant had admitted to using the word 'nigger' on the night in question and determined that the explanation did not provide a reasonable excuse for its use. On the basis of the evidence before the Decision Maker, including the Appellant's own admissions, it was open to the Decision Maker to find that the allegation had been substantiated. 

[36]	The Appellant contends that the witness statement provided by the Witness was not provided to him at first instance and does not support the allegation. The Appellant had the benefit of viewing the witness statement prior to filing his submissions in this matter and this had no material impact on the outcome. I am not persuaded that the delay in the provision of the statement caused any prejudice to the Appellant.  

[37]	The Appellant contends that there is no evidence to substantiate the allegation in a manner that would suggest he is liable for discipline, and that the statement by the Complainant did not state that the Appellant made racist comment 'towards' her. The Complainant's statement outlines the Complainant's clear recollection that the Appellant made the comment and the Complainant's response to the comment being made. This is consistent with the allegation that the Appellant 'made a racist comment to [the Complainant]'.  

[38]	The Witness provided a statement stating that they had not been listening to the conversation when they heard the Complainant become upset and so began listening to the conversation at that point. The Witness heard the Complainant explain why the racist term was offensive to them and others at the table. 

[39]	The Respondent should have provided the Appellant with the statements provided by the Complainant and the Witness in accordance with cl 9.3(d) of the Directive. It was a blemish on the process that this did not occur. However, the allegation put to the Appellant simply outlines the claims made in the Complainant's statement. The Appellant's own account does not depart significantly from that given by the Complainant in their statement. In these circumstances, I am not persuaded that the Appellant's response would have been different had he had the benefit of seeing the Complainant's statement prior to responding to the first show cause letter. I note that the submissions provided in this appeal, which were made after obtaining the statements, do not vary as a consequence of viewing the statements. It does not appear that the Appellant has suffered any prejudice as a consequence of not receiving the statements earlier in the process. 

[40]	On the account provided by the Complainant and the Appellant's own account, it was open to the Decision Maker to determine that the Appellant had made a racist comment to the Complainant. 

Disciplinary finding

[41]	The Decision Maker made the following disciplinary finding – 

I have carefully considered all the material before me including your submissions and I have determined that Allegation one is substantiated on the balance of probabilities and based on information provided by all parties. You do not deny that the offensive and racist term was used, and I reject any claim that a reasonable person could contemplate that the term can be used without it causing offence. 
 
On the basis of my finding in relation to Allegation one, I have determined that, pursuant to section 91(1)(b) of the PS Act, you have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely the Code of Conduct, specifically:

section 91(5)(b) defines misconduct as

inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed. 

[42]	The Appellant submits that he is not liable for discipline under the Code of Conduct for the Queensland Public Service ('the Code of Conduct') as he was not performing duties on behalf of the Respondent at the time of the incident. The Appellant contends that he was not representing the Queensland Government and was not in attendance at a work‑related social event. The Appellant states that the Code of Conduct did not apply to an after-work social event unrelated to work and there was no evidence that he was identifiable as a Queensland Public Sector employee. The Respondent submits that the Appellant was at a work dinner for the Reef Team but does not contend that the conduct occurred whilst the Appellant was working in an official capacity. 

[43]	Section 91(5) of the PS Act defines 'misconduct' as follows – 
(a)	inappropriate or improper conduct in an official capacity; or

(b)	inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
[emphasis added]

[44]	The Decision Maker determined that the Appellant's conduct contravened s 91(5)(b) in that it was inappropriate or improper conduct in a private capacity that reflects seriously and adversely on Respondent. 

[45]	The Appellant's submission that the Code of Conduct did not apply as there was no evidence that he was identifiable as a Queensland Public Sector employee is misconceived. Section 91(5)(b) clearly anticipates conduct in a private capacity and does not require that the employee be identified as a public sector employee. I note the decision in Hutchison in which Commissioner Pidgeon considered circumstances in which a public servant may engage in less than ideal conduct in their private capacity, but such conduct may not be considered to 'reflect seriously and adversely on the public service'. Commissioner Pidgeon determined the following – 

It is not necessarily the publicising of the conduct that is the problem, it is the fact of the conduct itself. It is enough that the nature of the conduct is such that it reflects seriously and adversely on the public service. 

[46]	Deputy President Merrell noted in Coleman v State of Queensland (Department of Education) ('Coleman') that the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct apart from the definition in s 91(5).

[47]	In Coleman, Deputy President Merrell referred to the observations of Justice Daubney in Mathieu v Higgins when considering the term 'misconduct', stating the following – 

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.

[48]	It was open to the Decision Maker to determine that the conduct of the Appellant in using the racist term when talking to a work colleague was a deliberate departure from accepted standards. The proposition that such conduct by an employee would not reflect adversely on the public service cannot reasonably be accepted. It was reasonable to determine that the conduct reflects seriously and adversely on the public sector entity. 

Preference for the evidence of the Witness

[49]	The Appellant submits that the Decision Maker did not correctly apply the 'balance of probabilities' and appears to have preferred the Witness's version of events to the Appellant's without providing an explanation as to why this was the case. The Appellant submits that he does not have a disciplinary history for the Respondent to rely upon and the Respondent does not appear to claim that the Appellant has exhibited a pattern of this type of behaviour. The Appellant maintains that he was involved in 'what may be taken as a possible controversial debate/conversation' and did not make a racist comment to the Witness.

[50]	The allegation is not that the Appellant 'called' the Complainant by the racist term, it was that he made the racist comment to the Complainant. Even if the Appellant's account is preferred, his own version confirms that he made the racist comment to a co-worker. The Appellant's assertion that it was in the context of a 'controversial debate/conversation' does not mean that the conduct did not occur. Regardless, the statement provided by the Witness is broadly consistent with the statement provided by the Complainant. Accordingly, it was open to the Decision Maker to accept the Witness's version of events. 

Human Rights 

[51]	The Appellant contends that his human rights have been impacted by this decision, specifically s 21(1) and (2) of the Human Rights Act 2019 (Qld) ('the HR Act'), being his right to hold an opinion without interference and freedom of expression to impart information and ideas of all kinds. 

[52]	The Respondent submits that these rights are not without limit. The decision outlined consideration of the Appellant's human rights, stating – 

I have also considered the impact on your human rights of this decision. I acknowledge that the direction contained in the Policy may impact your human rights, however I consider that any impact is reasonable and justifiable given the potential to cause further impact to members of the department's workforce. 

[53]	Section 21 of the HR Act is outlined as follows – 

21  Freedom of expression

(1)	Every person has the right to hold an opinion without interference.

(2)	Every person has the right to freedom of expression which includes the freedom to seek, receive and impart information and ideas of all kinds, whether within or outside Queensland and whether—

(a)	orally; or

(b)	in writing; or

(c)	in print; or

(d)	by way of art; or

(e)	in another medium chosen by the person.

[54]	The Respondent's decision will be incompatible with a human right where it limits the right in a way that is not reasonable and demonstrably justifiable.

[55]	In Gilbert v Metro North Hospital Health Service & Ors ('Gilbert') Vice President O'Connor considered the matter of Comcare v Banerji regarding the application of s 21 of the HR Act in the public sector employment context - 

The High Court in Comcare v Banerji [2019] HCA 23 (Banerji), has now confirmed, albeit in the context of the implied freedom of political communication, that the values and behavioural expectations of the Australian Public Service ('APS'), as contained in the Public Service Act 1999 (Cth) including the APS Code of Conduct ('Code'), do not offend the implied freedom. As a consequence, the Commonwealth was entitled to terminate the employment of Ms Banerji, for a series of anonymous 'tweets' critical of her employer and others.

What Banerji is illustrative of is that a public sector employee cannot contravene the behavioural expectations of their employer and expect immunity in reliance on the HR Act in respect of their rights to freedom of expression and freedom of association. Within the employment relationship, the employer's reasonable and lawful instructions about an employee's conduct, typically expressed in the form of a Code of Conduct, remain paramount. 

[56]	The Appellant's rights pursuant to s 21(1) and s 21(2) of the HR Act do not override the Respondent's reasonable and lawful instructions as expressed in the Code of Conduct. As outlined in Gilbert, expectations that an employee’s conduct will be consistent with the Code of Conduct are paramount. 

[57]	I am satisfied that the Decision Maker demonstrated consideration of the Appellant's human rights. In circumstances where the Appellant admitted using a racist term and the evidence of the Complainant was that this caused them offence, it was open to the Decision Maker to determine that any limitations on the Appellant's human rights were reasonably justified given the potential of the Appellant's conduct to impact other members of the Respondent's workforce. 

Apology

[58]	The Appellant conceded that he 'may have expressed [his] ideas in a poor fashion on this occasion' and stated that he could only apologise for this with deep regret in causing the Complainant any distress. The Appellant submits that the Respondent's logic is inconsistent as they claim that his failure 'to show genuine remorse' substantiates the allegation, but also claim that 'whether or not [the Appellant] gave a genuine apology to [the Complainant] doesn't alter the fact that the offence occurred.' The Appellant contends that this is an indication that his apology has not been adequately considered and this is indicative of a pre-determined outcome.

[59]	The decision outlined the following consideration of the Appellant's apology – 

Whether or not you gave a genuine apology to [the Complainant] doesn't alter the fact that the offence occurred, and that [the Complainant] took offense. The department considers that the comment is highly inappropriate, regardless of [the Complainant's] response to it. [The Complainant's] response demonstrates the impact that comments of this nature can and do have. 
 
[60]	The Decision Maker's determination that the Appellant failed to show genuine remorse was fair and reasonable given that the Complainant's statement focused on the distress caused by the lack of remorse demonstrated by the Appellant. It seems that if the Appellant had provided a genuine apology instead of stating that he was sorry that the Complainant 'had felt offended', this matter may have resolved at that point. 

[61]	It was open to the Decision Maker to state that the Appellant had failed to show genuine remorse whilst noting that, irrespective of whether a genuine apology was made, it was clear that the offence had occurred. This does not indicate a pre-determined outcome, as the allegation relates only to whether the conduct had occurred – not whether the Appellant was genuinely remorseful or not. 

Other issues

[62]	The Appellant submits that the Respondent's claim that his response does not show his potential for modified behaviour in the work unit or elsewhere is unfair because he was never asked to demonstrate this. The Appellant contends that this was an unfair and unreasonable conclusion to make as the Respondent did not refer to a pattern of behaviour or any evidence to indicate his potential for modified behaviour. 

[63]	It was not necessary that the Respondent specifically direct the Appellant to demonstrate his capacity to modify his behaviour in the workplace. The Appellant was invited to respond to the allegation, and it was open to the Appellant to include any submissions he considered relevant. I note that a decision has not yet been made regarding proposed disciplinary action and so this does not form part of this appeal.

[64]	The Appellant submits that management action should have been considered in accordance with cl 4.7 and cl 4.8 of the Directive. The Appellant contends that disciplinary processes are designed to manage risk to the Respondent and to develop staff, and that they should not be used as a purely punitive tool.  

[65]	The Appellant is correct in his submission that disciplinary processes are not punitive tools. In Gilbert, Vice President O'Connor made the following determination after considering provisions regarding 'misconduct' – 

It is clear from the above authorities that the purpose of the disciplinary regime under the PS Act is protective not punitive. In other words, the regime under Chapter 6 of the PS Act is intended to protect the public, maintain proper standards of conduct by public service employees and protect the reputation of the public service.

[66]	Clauses 4.7 and 4.8 of the Directive refer to 'early intervention' to address unacceptable conduct. It is not necessary that all instances of unacceptable conduct be subject to management action prior to disciplinary action. The circumstances of the conduct are relevant and, particularly in situations involving potential misconduct, it is not unreasonable for the Respondent to pursue a disciplinary process to maintain proper standards of conduct by public service employees.  

[67]	After considering all the information before the Commission, I am satisfied that the decision was fair and reasonable. 

Order

[68]	I make the following order:

1.	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. 
2.	The file not be subject to search and copy without leave of the Commission.