QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:
	Moran v State of Queensland (Queensland Health) [2024] QIRC 281

PARTIES:	
	Roger Moran
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2024/97
	
PROCEEDING:
	Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:
	29 November 2024
	
MEMBER:

HEARD AT:	Caddie IC

On the papers

ORDER:
	The appeal is dismissed.

CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where disciplinary findings made against the appellant – where appellant appeals the substantiation of the allegations – whether the decision was fair and reasonable – whether the appellant engaged in the conduct subject of the allegations – where the allegations are substantiated – where the appeal is dismissed. 
	
LEGISLATION:

CASES:	Industrial Relations Act 2016 (Qld) s 562B.

Public Sector Act 2022 (Qld) ss 91, 131, 133.

Public Sector Commission Directive 05/23 – Discipline (1 March 2023) cl 9.4.

Public Sector Commission Directive 17/20: Workplace Investigations (25 September 2020 – 9 June 2024).

Briginshaw v Briginshaw (1938) 60 CLR 336

Goodall v State of Queensland & Anor [2018] QSC 319..

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283.

Perry v State of Queensland [2023] QIRC 348.	

Reasons for Decision

	Background

[1]	Mr Roger Moran is employed by Queensland Health as an Environmental Services Officer at the Gold Coast University Hospital.

[2]	On 14 September 2023, Mr Mark Drew, a colleague of Mr Moran, submitted a witness statement reporting that Mr Moran engaged in repeated inappropriate behaviour including of a sexual nature, directed towards him. 

[3]	Mr Moran was informed of the complaint on 5 October 2023 and due to the nature of the alleged conduct was suspended from duty on normal remuneration. 

[4]	An external investigation was conducted with the investigator concluding the allegations were, on the balance of probabilities, capable of being substantiated. The Investigation Report lists the allegations as follows:

1.	On or around 11 September 2023, at the Gold Coast University Hospital (GCUH), Mr Moran made inappropriate physical contact with Mark Drew by approaching him from behind and using his two hands to grab his chest.

2.	On or around 14 September 2023, at the GCUH, Mr Moran made inappropriate physical contact with Mark Drew by twisting his left nipple.

3.	On unknown dates at the GCUH, on multiple occasions, Mr Moran failed to treat Mark Drew with courtesy and respect by:
		a.	attempting to grab Mr Drew's genitals and/or;
	b.	making inappropriate comments regarding Mr Drew's weight.

[5]	Mr Grant Brown, the delegated decision-maker for the Gold Coast Health and Hospital Service, wrote to Mr Moran to advise his view that Mr Moran may be liable to disciplinary findings pursuant to s 91 of the PS Act. The letter invites Mr Moran to show cause as to why a disciplinary finding should not be made against him. The letter sets out the allegations, the particulars for each allegation, and the possible discipline grounds for each of the allegations should they be substantiated. The possible discipline grounds were identified as misconduct or contravention without reasonable excuse of a relevant standard of conduct.

[6]	Mr Moran, through his union, the Australian Workers' Union of Employees, Queensland ('AWU'), provided a detailed response to the show cause notice.  

[7]	On 5 June 2024, Mr Brown issued Mr Moran with a disciplinary finding decision. Mr Brown found all three allegations were substantiated, and that for each Mr Moran had breached a relevant standard of conduct pursuant to s 91(1)(h) of the Public Sector Act 2022 ('PS Act'), being cl 1.5 of the Code of Conduct.

[8]	This is the decision subject of the appeal filed by Mr Moran on 10 June 2024.

[9]	In the decision letter, Mr Moran was also advised that serious consideration was being given to the disciplinary action of termination of employment. He was given seven days to provide a response as to why the proposed disciplinary action should not be taken.

[10]	As no decision has been made in relation to the proposed disciplinary action, this appeal is confined to whether it was fair and reasonable for Mr Brown to determine that the allegations were substantiated and gave rise to a discipline ground.

Appeal grounds

[11]	Mr Moran appeals against the decision on the basis that the findings are unfair and unreasonable. No specific grounds were identified in the application. However, through submissions, Mr Moran argues the allegations were not capable of substantiation on the balance of probabilities, given his outright denials in relation to some conduct and the lack of any witness verification.

Outcomes sought

[12]	Mr Moran seeks that the decision be set aside and substituted with a decision that the allegations are unsubstantiated.

[13]	Queensland Health seeks that the decision be confirmed given it is fair and reasonable, and the process was undertaken in a procedurally fair way.

Is the Appellant entitled to appeal?

[14]	Section 131 of the PS Act outlines the categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a 'fair treatment decision', which includes a finding under s 91 that a disciplinary ground exists for a person. Section 133 (d) of the PS Act provides a public sector employee aggrieved by the decision is entitled to appeal. 

[15]	Section 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') requires an appeal to be lodged within 21 days after the day the decision appealed against is given.

[16]	I am satisfied that the decision is one that may be appealed against, that Mr Moran is entitled to appeal, and that the appeal was lodged within the required time.

Appeal principles and approach

[17]	Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. The appeal is not by way of re-hearing. Findings made in the decision which are reasonably open to the decision-maker are not expected to be disturbed on appeal.

[18]	I am required to consider whether it was fair and reasonable for Mr Brown to determine that the allegations against Mr Moran were substantiated and gave rise to a ground for discipline. This involves consideration of the decision arrived at having regard to the information available to Mr Brown at the time the decision was made, as well as the process followed. Rather than summarising the parties' submissions in their entirety, I will refer to them as relevant to my decision.

[19]	Section 562C of the IR Act provides in deciding this appeal, I may confirm the decision appealed against or 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.

Relevant legislative framework and other instruments

The Public Sector Act

[20]	Mr Moran was found liable for discipline by Mr Brown under s 91(1)(h) of the PS Act. It relevantly provides:

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 —
	…
(h)	contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
			…
			(5)	In this section —
				…
				'relevant standard of conduct' —
				(a)	for a public sector employee, means —
(i)	for 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
…

The Discipline Directive

[21]	The Discipline Directive sets out the procedural steps for the requirements to commence a discipline process, a show cause process, disciplinary findings, and disciplinary action, and the relevant considerations for the decision-maker. Clause 9.4 of the Directive sets out:

9.4	Decision on grounds (disciplinary finding)
a.	The chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
b.	the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
c.	for each finding in clause 9.4(a), the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
…

Was the decision to substantiate each allegation on the balance of probabilities fair and reasonable?

[22]	It is relevant to my decision whether the evidence relied upon by Mr Brown supports the allegations to the required standard. Mr Moran argues his positive intent in relation to allegation one, the lack of eyewitness evidence for allegations two and three, and the generalised nature of the witness statements for allegation three, means that standard could not have been met. 

[23]	It is well settled and reflected in the Discipline Directive that while the standard of proof does not alter from case to case, the strength of evidence required to meet the standard does vary, as described in Briginshaw.

[24]	In Perry v State of Queensland, McLennan IC summarised the Briginshaw principle as follows (citations omitted):

[46]	In civil matters, the standard of proof is the balance of probabilities. The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:

… 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…

[The] nature of the issue necessarily affects the process by which reasonable satisfaction is attained.

[25]	In the decision letter, Mr Brown sets out for each allegation a summary of Mr Moran's response, Mr Brown's findings, and the basis for the findings he makes. For each allegation, Mr Brown considers Mr Moran's response, and the findings contained within the investigation report, including statements made by Mr Moran, Mr Drew, and three of their colleagues: Mr Ward, Mr Dean, and Mr Bombala. 

Allegation One
 
[26]	The decision-letter sets out allegation one as follows:

On or around 11 September 2023, it is alleged that at the start of your shift in the caged area at Gold Coast University Hospital, you made inappropriate physical contact with Mr Mark Drew, by approaching him from behind and using his two hands to reach around and grab his chest.

[27]	Mr Moran does not deny that he did approach Mr Drew from behind using two hands to grab his chest. However, Mr Moran denies that the interaction was of a deliberate, sexual nature. 

[28]	Mr Moran describes what happened as a 'brief hug with a little bit of a squeeze, just like any other hug...' 'I stopped hugging him and walked away because he didn't say anything.' He submits the hug was given in the context of Mr Moran and Mr Drew having a good friendship at work, and Mr Moran knowing that Mr Drew's mother had recently died. 

[29]	Mr Brown reasoned that regardless of any intent Mr Moran physically touched a colleague without consent and without any regard to the potential internal distress and trauma that may result. Mr Brown further reasoned that Mr Moran's own evidence and that of Mr Drew in the investigation calls into question the assertion of a friendly relationship which would give rise to any touching. 

[30]	I concur with Mr Brown. The conduct is substantiated by Mr Moran's own admission. The context of the behaviour offered as mitigation is then not supported by other evidence he provided in the investigation.

[31]	Like Mr Brown, I am also struck by Mr Moran's lack of apparent insight or awareness of how inappropriate this behaviour was. In what was purported to be a consoling gesture, he said nothing before or during the 'hug' and then walked away when Mr Drew allegedly said nothing. If neither man spoke, how was Mr Drew to know this was a consoling gesture, and how was Mr Moran to know if Mr Drew felt consoled? This seems unlikely, and indeed Mr Drew states that he did object and was gobsmacked by the behaviour. 

[32]	It is only through the discipline process that Mr Moran claims to have become aware how inappropriate his conduct was, and in his show cause response he offers a classic non‑apology that he is "deeply sorry that Mark has taken this hug as inappropriate."

[33]	Mr Brown determined that details of what Mr Drew said, and the offered apology, were ultimately not relevant to whether or not the conduct occurred. There is no dispute that it did.  

[34]	I confirm Mr Brown's decision that allegation one is substantiated.

Allegation two

[35]	The decision letter sets out allegation two as follows:

On or around 13 September 2023, it is alleged that in the caged area at Gold Coast University Hospital, you made inappropriate physical contact with Mr Mark Drew, by twisting his left nipple.

[36]	Mr Moran denies twisting Mr Drew's nipple and otherwise denies making inappropriate contact. He states he cannot recall what had exactly happened in the interaction with Mr Drew, but he would have remembered twisting his nipple – particularly if he had twisted the nipple with the intention of causing harm. He does submit he may have had interactions with Mr Drew that meant he either touched him because of proximity or inadvertently brushed past him. Mr Moran described incidental contact as being common in the 'cage' area of his workplace, especially as Mr Drew is a large man. 

[37]	Mr Moran states that in relation to this unavoidable and inadvertent physical contact, it wasn't done with any intent to cause harm or hurt, and it was never sexual; just as any inadvertent contact with him by Mr Drew was not taken in that way. He states, "if any of my interactions have caused Mark harm, I am extremely sorry."

[38]	Mr Drew indicates he reacted to the incident by saying in a higher tone "Roger, I've told you not to touch me," and that Mr Moran "kind of laughed it off and scoffed." Mr Drew further indicated, "In a loud voice I said to him that was very inappropriate and I told him to stop. He shrugged this off and kept on his way." Mr Drew felt totally humiliated by the behaviour and believed it was done to belittle him.

[39]	In his submissions, Mr Moran argues there was no substantive evidence or witnesses to support the allegation that Mr Moran twisted Mr Drew's nipple. Mr Moran refers to the investigation report stating witnesses "did not see the incident itself." He argues this prevents any reasonable conclusion that the incident occurred.

[40]	While it is correct that none of the witnesses claim to have seen the event, they were in the vicinity and have been able to provide other relevant information. Mr Dean and Mr Ward confirmed they heard Mr Drew saying "don't touch me," or "don't do it again." Following that, Mr Dean saw Mr Moran leave with a smile on his face. Mr Dean also states that after the incident, he saw Mr Drew upset and distressed and him saying, "If he does it again, I'm going to file note him." A third witness, Mr Bombala, indicated he was not aware of the specifics of the incident, although noted that Mr Drew mentioned that Mr Moran tried to grab him, but did not provide any further detail.

[41]	It is this corroboration which underpins Mr Brown's reasoning that the incident was more likely than not to have occurred in the manner outlined by Mr Drew. He weighed this against Mr Moran's lack of evidence to account for his location and conduct at the time the incident occurred. 

[42]	I concur that this conclusion was reasonably open to Mr Brown given the corroboration between the witnesses. There is no suggestion that the witness evidence lacks credibility or is otherwise biased. All witnesses attest to having an equivalent working relationship with Mr Moran and Mr Drew. 

[43]	I confirm Mr Brown's decision to substantiate allegation two.  

Allegation three

[44]	The decision-letter sets out allegation three as follows:

On unknown dates over a period of approximately eight years, it is alleged that you failed to treat Mr Mark Drew with courtesy and respect by attempting to grab his genitals and making inappropriate comments about his weight. 

[45]	It is not clear why the two different components of this allegation, previously denoted by points (a) and (b), have been combined into a single sentence in the show cause notice. There is separate and different evidence in relation to the 'attempting to grab genitals' component and the 'inappropriate weight comments' component of the allegation. Both components must be considered separately to determine whether each component is more likely than not to have occurred. 

[46]	Other than the two specific types of conduct complained of, this is a very broad allegation encompassing a long period of time.  Mr Drew in his investigation interview confirms the behaviour was ongoing, but that he is unable to provide specific dates or times. He states the attempts to grab his genitals may have occurred on 20 or 50 occasions over that time. It is indicated the behaviour occurs in the cage, as there are no cameras in that area. He states the comments criticising his weight also continued occurring over time, until the comments reached the point where Mr Drew had enough. Mr Drew states he took himself away from Mr Moran, so Mr Moran could pick on someone else. He considers that Mr Moran went out of his way to make his life a misery.

[47]	Dealing with the comments regarding weight first, Mr Moran admits to making inappropriate comments about Mr Drew's weight, however, frames it in the context of conversations about Mr Drew's fitness and suggestions he made on how Mr Drew could keep fit and at a reasonable weight. Mr Moran with the benefit of hindsight acknowledges the comments were inappropriate. Witness accounts in the investigation report relied on by Mr Brown further indicate that Mr Moran was not the only person to make inappropriate comments regarding Mr Drew's weight, and that multiple staff had done so.

[48]	The investigation found that Mr Ward heard Mr Moran say on different occasions, "I suppose he's going to be eating KFC tonight," and "I think he eats a lot of KFC." Mr Ward also reported that Mr Drew sought his assistance in the past regarding how to deal with Mr Moran, as Mr Drew was sick of Mr Moran making comments towards him. Both Mr Drew and Mr Bombala confirm these comments were upsetting to Mr Drew.

[49]	Mr Moran, on his own account to the investigator, recalled making comments including "I suppose he's going to be eating KFC tonight." These statements are not consistent with concern for health and wellbeing. Mr Moran again apologises for any comment Mr Drew feels was inappropriate. There was never any intent to cause Mr Drew harm. 

[50]	Mr Brown weighed the evidence, including Mr Moran's admission, and determined that this aspect of the allegation was substantiated. The fact that Mr Moran was not the only person making inappropriate comments about Mr Drew's weight does not absolve him of his responsibility for his own conduct. 

[51]	I agree that Mr Brown's conclusion is reasonable.  

[52]	In relation to the attempts to grab Mr Drew's genitals, there is no evidence, including from Mr Drew, that there was ever physical contact.  Mr Drew indicates the repeated behaviour made him feel uncomfortable and that he had told Mr Moran to stop. Mr Moran denies ever attempting to touch or touching Mr Drew's genitals and states their friendship did not extend to anything so personal.

[53]	None of the witnesses reported ever seeing this behaviour. Mr Ward and Mr Bombala say they heard Mr Drew tell Mr Moran "Don't do it, stop it" and stating "he's tried to touch me," but this evidence does not appear to be tied to specific instances of attempted genital grabbing identified by Mr Drew. Mr Bombala, whose credibility is not in question, does report that Mr Drew mentioned this occurring, and he could understand how Mr Drew may feel about that. This is the most direct link to confirmation that the conduct had in fact occurred.

[54]	In the investigation report, and accepted by Mr Brown in his decision, is then what seems to be a conflation of the likelihood of the genital grabbing behaviour with the witness reports of a workplace culture in which Mr Moran was known to play around, muck around, and play tricks. The examples provided by the witnesses included hiding or moving things, taking a key out of a machine someone was trying to move, teasing and joking. It does not seem reasonable to infer the witnesses were suggesting this would go to the extent of grabbing at a co-worker's genitals. They did not see Mr Moran perpetrate this behaviour against Mr Drew or anyone else. They also seem to refer to this behaviour as evidence that there was no campaign targeting Mr Drew, as this was a feature of Mr Moran's interactions with all colleagues. The difference was that Mr Drew reacted to and was upset by the behaviour.

[55]	For this component of the allegation, I agree with the submissions made on behalf of Mr Moran that Mr Brown has not connected substantive evidence proving multiple incidents of genital grabbing with Mr Moran being known for playing tricks. I am however persuaded by the evidence of Mr Bombala that on at least one occasion, Mr Drew has directly reported to him that this conduct occurred. This provides a reasonable basis to conclude to the extent of that report only, the conduct was more likely than not to have occurred.  

[56]	While this does not alter my conclusion that allegation three has been reasonably substantiated, the alleged scale of the genital grabbing behaviour has not been demonstrated to the necessary standard. 

[57]	For the reasons above, I have determined a sufficient basis exists for reasonable satisfaction that allegations one, two and three are substantiated on the balance of probabilities. That is, at the civil standard; more likely than not, at the reasonable satisfaction of the tribunal.

Having substantiated the allegations, was it open to Mr Brown to determine Mr Moran contravened s 91(1)(h) of the PS Act?     

[58]	My consideration must now turn to whether it was open to Mr Brown to determine the conduct warranted his finding that Mr Moran contravened without reasonable excuse a standard of conduct sufficiently serious to warrant disciplinary action. 

[59]	The standard found to be breached is cl 1.5 of the Code of Conduct, which states:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct
			
We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:
a.	treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.
b.	ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment.
c.	ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients.

[60]	Mr Moran, who does not consider there was a sufficient basis for the allegations to be substantiated, obviously does not agree that the behaviour rises to a ground for discipline. In his submissions and during the discipline process, Mr Moran argues the lack of intent, his recent remorse and his offer of apology should mitigate against the behaviour being at a level warranting disciplinary action. I do not agree.

[61]	As clearly articulated in the show cause notice, the underlying conduct in these allegations was serious. Mr Drew made a complaint regarding the conduct to the Queensland Police Service as well as to hospital management. The particulars in the show cause notice reference the Health Service Workplace Harassment and Sexual Harassment Policy, and his duties and responsibilities under his role description which would be breached if the allegations were proven. The AWU in Mr Moran's show cause emphasise they have confirmed with Mr Moran that he understands the seriousness of the allegations. 

[62]	The substantiated conduct objectively breaches each part of cl 1.5. Lack of intent, lack of understanding or newfound remorse do not constitute reasonable excuses for the breach. A culture of this behaviour being perpetrated in the work area is not a reasonable excuse for the breach. 

[63]	Across the three allegations, a pattern of inappropriate verbal and physical behaviour towards Mr Drew without any regard to its impact on him has been demonstrated. This behaviour has had very real consequences for Mr Drew's wellbeing and safety at work. 

[64]	The finding that the conduct is sufficiently serious to warrant disciplinary action is fair and reasonable in the circumstances.

What is the purpose and status of the external investigation report?

[65]	Notwithstanding that this appeal is only in relation to the disciplinary finding, for completeness I will address the submission made on behalf of Mr Moran that the only disciplinary penalty that should be imposed is the one proposed by the investigation report. The investigation report recommended a reminder to staff about the Code of Conduct. The penalty proposed by the decision-maker is one of termination of employment. The AWU argues that termination is disproportionate.

[66]	The Workplace investigations Directive applicable at the time of the conduct outlines there will be some matters where a workplace investigation is warranted, such as for matters which may proceed to discipline. It goes on to expressly state that a workplace investigation, whether internal or external, is not a disciplinary step but a separate process to any formal discipline process.

[67]	The purpose of the investigation as stated in the investigation report is 'to assess the allegations and to make findings in relation to whether the allegations were capable of substantiation.' The purpose of the investigation is not to make findings on disciplinary grounds or in relation to disciplinary action. That responsibility rests solely with the decision-maker.

[68]	It is clear from the investigation report that the proposed education about the Code of Conduct is based on the evidence highlighting a broader cultural issue that the Health Service may wish to address. It is not relevant to the current appeal.

Was the process procedurally fair?

[69]	There is no suggestion in any of the material before me that the process was not conducted in accordance with the requirements of the Act and Directive. Objectively, this is also the case. 

[70]	An investigation was conducted as part of the process to determine whether there was a basis to commence a disciplinary process. There is no suggestion the investigation was not carried out in accordance with the applicable directive. 

[71]	The formal disciplinary process commenced with a show cause process and an approved extension of time for Mr Moran to participate. Mr Brown addresses the submissions made by Mr Moran in outlining the reasons for forming his view that the allegations had been substantiated and gave rise to the nominated disciplinary ground. The reasoning is laid out in the letter.

[72]	While Mr Moran has raised issue with the conclusions reached by Mr Brown in his assessment of the evidence, and to a limited extent, I have agreed with that view, that does not render the process itself unfair.  

Conclusion

[73]	I have determined that the decision to find each of the allegations are substantiated and give rise to disciplinary grounds is fair and reasonable. 

[74]	I find the disciplinary process was undertaken in a procedurally fair way. I order accordingly.

Orders
1.	The appeal is dismissed.