QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Joyce v State of Queensland (Department of Environment and Science) [2024] QIRC 279
	
PARTIES:
	Joyce, Michael
(Appellant)

v

State of Queensland (Department of Environment and Science)
(Respondent)
	
CASE NO.:
	PSA/2024/5
	
PROCEEDING:

DELIVERED ON:
	Public Sector Appeal – Decision

29 November 2024	
MEMBER:

HEARD AT:	Power IC

On the papers
	
ORDER:	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
	
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 131(1)(b) of the Public Sector Act 2022 (Qld) – whether decision on management action was fair and reasonable – decision fair and reasonable – appeal dismissed. 
	
LEGISLATION AND OTHER INSTRUMENTS:	Acts Interpretation Act 1954, s 27B, s 38

Code of Conduct for the Queensland Public Service

Commission Chief Executive Guideline 01/17, cl 9

Discipline Directive 05/23, cl 4, cl 5, cl 7, cl 9

Industrial Relations Act 2016 (Qld), s 451, s 562B, s 562C, s 564

Positive performance management Directive 15/20

Public Sector Act 2022 (Qld), s 91, s 101, s 122, s 129, s 131, s 132

Suspension Directive 06/23, cl 4
	
CASES:	Baker v State of Queensland (Queensland Health) [2024] QIRC 4

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Burnside v State of Queensland (Queensland Health) [2023] QIRC 344

Goodall v State of Queensland [2018] QSC 319

Limpus v State of Queensland (Department of Environment and Science) [2023] QIRC 184

Lu v State of Queensland (Queensland Health) [2024] QIRC 031

Marsh v State of Queensland (Department of Education) [2021] QIRC 79

Power v State of Queensland (Department of State Development, Tourism and Innovation) [2021] QIRC 53
	
Reasons for Decision

Introduction

[1]	Mr Michael Joyce ('the Appellant') is employed by the State of Queensland (Department of Environment and Science) ('the Respondent') as the Regional Manager, Northern Wildlife Operations, Queensland Parks and Wildlife.

[2]	On 21 April 2023, an Individual Employee Grievance regarding the Appellant's behaviour was received by the Workforce Relations and Integrity team within People and Culture.

[3]	On 6 July 2023, the Appellant was advised that allegations regarding his conduct had been received and that inquiries were being undertaken. Mr Andrew Buckley, Assistant Director General, Management and Operations, Queensland Park and Wildlife Service and Partnerships ('the decision maker') advised that the Appellant would be placed in alternative duties in a different office.

[4]	On 15 September 2023, the final investigation report was received by the Department, which found that one allegation was substantiated.

[5]	By letter dated 29 September 2023, the decision maker wrote to the Appellant inviting him to show cause in relation to the following allegation:

Allegation One
It is alleged that on or around 1 March 2023, you spoke inappropriately about the Executive Director, Ms Kirstin Kenyon, to the team. 

Particulars
a)	On or around 1 March 2023, you organised a team meeting in the Cairns office to discuss workplace behaviour.
b)	During this meeting you referred to Ms Kirstin Kenyon, Executive Director, as a "fucking idiot".

[6]	The Appellant provided a response to the show cause notice on 16 October 2023.

[7]	On 20 November 2023, the decision maker notified the Appellant of his determination in relation to the disciplinary findings, the decision on management action, and the proposed disciplinary action ('the decision').

[8]	The decision maker found that Allegation 1 had been substantiated and determined that pursuant to s 91(1)(h) of the Public Sector Act 2022 ('the PS Act') the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action.

[9]	The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of a reprimand.

[10]	The Appellant was granted an extension and provided his response on 1 December 2023.

[11]	On 13 December 2023, the decision maker notified the Appellant of his determination as to the disciplinary action.

[12]	The Appellant's Appeal Notice appealing against a disciplinary decision pursuant to s 131(1)(c) of the PS Act was accepted for filing on 8 January 2024.

[13]	The issue for determination is whether the decision was fair and reasonable. 

Legislative Framework

[14]	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)	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 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.

[15]	Clause 5.3 of the 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.

[16]	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

[17]	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.

[18]	The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for determination in this matter is whether the decision by the Department to take the management action as outlined in the decision 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?

[19]	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 matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

[20]	In the appeal notice, the Appellant attached a schedule providing his reasons for the appeal. The schedule is summarised as follows:

(a)	The Appellant has taken full accountability for his actions and does not dispute that he has made a singular lapse in his judgement that resulted in the incident. The Appellant has an exemplary work performance history and no discipline history in his 29-year career. The Appellant has not had similar instances previously in his career and has not had any further instances since the incident.

(b)	The Appellant does not believe that the decision maker has properly weighed the evidence to determine whether the allegation was substantiated on the balance of probabilities. The Appellant submits that he used the term out of desperation in a stressful situation when referring to management, but that the decision maker did not give sufficient weight to his evidence. 

(c)	The Appellant contends that the matter was an isolated incident in extenuating circumstances over a 29-year career, and so the matter should have been dealt with under the Positive performance management directive (Directive 05/23) or, failing that, that the matter could have been adequately resolved through local management action.

(d)	The Appellant contends that the management action being taken by the Department in addition to the disciplinary penalty is excessive.

Submissions

[21]	The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The Respondent sought leave to provide further submissions upon receipt of the Appellant's submissions in reply. The Appellant was also granted leave to provide further submissions.

Appellant's Submissions

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

(a)	The Appellant reiterated that he has taken full accountability for his actions and has an exemplary work performance history and no discipline history in his 29-year career, with no further instances since the incident.

(b)	The Appellant argues that the Department did not following cl 4.8 of the Directive as they failed to adequately consider alternative dispute resolution or the issuing of warnings before arriving at their disciplinary decision.

(c)	The Appellant referred to cl 9.3 of the Directive and the Commission Chief Executive Guideline 01/17: Discipline and argued that the investigation report is not evidence in its own right, and that the decision maker should have referred to the specific evidence contained in the report instead of broadly referring to the report.

(d)	The Appellant understands that the decision maker substantiated that he used the term "fucking idiot" when referring to Ms Kirstin Kenyon, Executive Director, but argues that the decision maker did not refer to what evidence was used to substantiate that those words were specifically used by the Appellant.

(e)	The Appellant provided evidence during the investigation interview process that he likely used the term out of desperation in a stressful situation when referring to management, but the decision maker did not refer to any evidence in their decision that suggests that the Appellant used the term "fucking idiot" when specifically referring to Ms Kenyon.

(f)	The decision maker does specify that "I do not agree that your poor choice of words was in desperation to settle the situation" but does not specify how they arrived at that conclusion on the balance of probabilities. The Appellant submits that the decision maker is relying upon their personal opinion instead of evidence when arriving at that conclusion.

(g)	The Appellant does not believe that there has been any evidence presented which indicates that the Appellant repeatedly used the offensive term, and the Appellant submits that the investigation material seems to indicate that it was a singular use of a term that the Appellant regrets using in the moment, which he has expressed remorse and embarrassment about.

(h)	The Appellant argues that the decision maker would also be bound by s 27B of the Acts Interpretation Act 1954 in that they should have included the findings on material questions of fact, and referred to the evidence on which those findings were based.

(i)	The Appellant further argues that the failure to include information required by legislation should render the decision unfair and unreasonable. This is consistent with the approach taken by Pidgeon IC in Burnside.

(j)	The Appellant contends that the Decision Notice is deficient due to the lack of references to the evidence being relied upon by the decision maker and should contribute towards the decision being unfair and unreasonable.

(k)	The Appellant submits that the decision maker failed to adequately consider cl 7.1 of the Directive.

(l)	As an isolated incident in extenuating circumstances over a 29-year career, the Appellant contends that the matter should have instead been dealt with under the Positive performance management (Directive 15/20).

(m)	In the alternative, the Appellant submits that the decision maker failed to adequately consider cl 7.2 of the Directive as local management action such as the use of warnings or alternative dispute resolution would have adequately addressed or resolved this particular matter.

(n)	The Appellant further argues that the management action by the Department in addition to the disciplinary penalty are excessive. Despite the decision maker stating that the management action is independent of the disciplinary process, the specific management action proposed appears to penalise the Appellant further and does not serve a general purpose beyond being punitive in nature.

(o)	The Appellant reiterates that he is willing to provide the verbal and written apologies and complete the Leading at DES training program assigned in the management action. The Appellant does not seek to challenge the management action and agrees that they are appropriate and relevant to the circumstances.

(p)	The Appellant further accepts that he may need to continue to perform alternative duties while this training is completed, and the apologies are provided to the relevant parties. However, the Appellant argues that the training and delivery of apologies would only take weeks to complete, and not 12 months as has been decided.

(q)	The Appellant submits that he was originally directed to perform alternative duties in accordance with s 101(3) of the PS Act and the Suspension Directive 06/23. This was communicated to the Appellant via a letter from the decision maker dated 4 July 2023, and that his alternative duties were extended via an additional letter from the decision maker dated 21 September 2023.

(r)	The Appellant submits that cl 4.7 of the Suspension Directive 06/23 states that suspension is not disciplinary action and should not be used as a form of punishment.

(s)	The Appellant argues that there is no utility in keeping him separated from his team for 12 months, especially when he has already been performing alternative duties for several months. The decision for the Appellant to perform alternative duties forms part of the disciplinary action due to the excessive timeframe and its punitive nature.

(t)	The Appellant states that the Department cites "cultural capability uplift" as part of the reason why the 12 months of alternative duties is required. The Appellant argues that because he will be returning to the Manager role at some point in the future, the team will experience decreased stability while going through cultural capability uplift with a different manager. The Appellant will also miss key parts of the cultural capability uplift by being separated from the team for 12 months.

Respondent's Submissions 

[23]	The Respondent filed submissions which are summarised below – 

(a)	The Respondent submits that despite advising in his 16 October 2023 response that he accepted the allegation against him, the Appellant has now submitted that the Department should have dealt with this matter under Directive 15/23: Positive Performance Management.

(b)	The Respondent submits that the Appellant's arguments are misguided for the following reasons:

(i)	The Directive confirms that a discipline ground does not arise where conduct fails to satisfy the work performance and personal conduct principles. The finding that a ground for discipline exists against the Appellant is on the basis of a breach of a standard of conduct contained in the Code of Conduct for the Queensland Public Service ('the Code of Conduct'); not a breach of the principles contained in s 40 of the PS Act.

(ii)	The Directive confirms that discipline action may be taken where a breach of a standard of conduct is sufficiently serious as the delegate has formed a view that management action is not likely to adequately address the matter.

(c)	The Respondent refers to the recent case of Baker where Commissioner Pidgeon stated that:

This matter relates to conduct and not performance and there was therefore no requirement for Mr Spence-Thomas to first apply positive performance management principles before commencing a disciplinary process.

(d)	In accordance with cl 7 of the Directive, the delegate considered the matter serious enough to commence a disciplinary process, finding that the use of alternative resolution options (i.e. management action) would not adequately address or resolve the matter due to the level of disrespect shown by the Appellant's behaviour and conduct directed at his Executive Director.

(e)	Alternative dispute resolution in the form of verbal feedback has been used previously to address a customer complaint from 2022 regarding the Appellant's use of inappropriate language. This is a further reason why the decision maker believed that alternative resolution options would not adequately address or resolve the matter.

(f)	In his appeal, the Appellant has sought to challenge the basis on which the decision maker determined that the allegation is substantiated. The Respondent respectfully submits that the Appellant's arguments in this regard are without merit. The Respondent submits that:

(i)	the Appellant was provided with sufficient information to understand the allegation against him;
(ii)	the Appellant advised of his acceptance of the investigation findings, evidencing his understanding of the evidence against him; and
(iii)	the Appellant was provided with sufficient information to understand the basis of the decision.

(g)	The Respondent rejects the suggestion that it "referred broadly to the investigation report". As detailed in the Show Cause Notice dated 29 September 2023, specific sections relating to the allegation and evidence were provided. Pages 11 to 16 of the report were specifically identified.

(h)	As detailed in the letter dated 20 November 2023, the decision maker made the finding that the Appellant referred to the Executive Director as a "fucking idiot" based on the decision maker's acceptance of the finding and witness statements provided during the investigation and based on the Appellant's inability to deny the allegation.

(i)	The decision maker did not allege that the Appellant used the phrase on more than one occasion. All parties agree that this is a single incident. The Appellant also admits in his submissions that he regrets using 'a' term in the moment and expresses remorse.

(j)	The Respondent submits that it was open to the decision maker, on the balance of probabilities, to determine that the allegation had been substantiated. This was based on multiple witnesses and the fact that the Appellant regretted his actions, although he was unable to recall his exact phrasing.

(k)	The Respondent argues that the decision maker is not required to detail every aspect of their consideration and is instead only required to show any mandatory consideration and the core basis upon which the decision was made. The Respondent refers to the decision of Power v State of Queensland (Department of State Development, Tourism and Innovation)  to support this contention. The Respondent submits that this requirement was complied with.

(l)	The Respondent also submits that the management action mentioned in the Appellant's submissions is not appealable. The Respondent cites Limpus v State of Queensland (Department of Environment and Science) to support this.

(m)	The Respondent submits that the disciplinary penalty in this instance is a reprimand. In regard to the management action, the Respondent submits that:

(i)	the management action decided upon by the decision maker will continue to be implemented now that the Appellant has returned to the workplace;
(ii)	the Respondent refutes the Appellant's assertion that the management action is to penalise him further and do not serve a genuine purpose beyond being punitive in nature;
(iii)	the Appellant has expressed no issue with other management action imposed. He will be placed on alternative duties for a period of 12 months, at level within the same branch;
(iv)	the Appellant will have a chance to participate in the cultural capability uplift programme while undertaking the alternate role; and
(v)	it was decided that placing the Appellant in an alternate role during this time is what is best for the team to try to repair and build the culture in preparation for the Appellant to return.

Appellant's Submissions in reply

[24]	The Appellant filed submissions in reply which are summarised below – 

(a)	The Appellant clarifies that he is disputing the disciplinary penalty decision made by the Respondent. The Appellant submits that he has made submissions to this effect during the Show Cause process and in his initial submissions to the Commission.

(b)	The Appellant submits that the Respondent claims that the decision maker formed the view that management action was not likely to adequately address the matter, however, the Respondent did not include in their original decision any detail regarding why or how they came to that conclusion.

(c)	The Appellant is unaware of any formal feedback in relation to a customer complaint in 2022 and has not been involved in alternative dispute resolution at any time. This information was not provided to the Appellant during the Show Cause process, and the Appellant was unable to respond to it. The Appellant contends that it was unfair and unreasonable for the Respondent to rely on this information when arriving at their disciplinary penalty decision without giving the Appellant the opportunity to respond to it.

(d)	The Appellant submits that the Respondent did not comment on other forms of management action, such as the use of warnings, and why the use of a warning would not have adequately dealt with this matter.

(e)	The Appellant contests the Respondent's reliance on Baker and argues that s 122 of the PS Act states that personal conduct matters can in some circumstances be considered a work performance matter.

(f)	The Appellant argues that the management action is appealable as the management action referred to in Limpus occurred prior to the discipline process that was the subject of the appeal. The Appellant submits that the management action forms part of the disciplinary decision in this case, and so they should be within the scope of the appeal.

(g)	The Appellant submits that under s 131(1)(b) of the PS Act, the management action would be considered a directive decision under the Directive.

(h)	Alternatively, the Appellant argues that if the management cannot be classed as a directive decision, then it could be considered a fair treatment decision under s 131(1)(d) of the PS Act.

Respondent's Further Submissions 

[25]	The Respondent filed further submissions which are summarised below – 

(a)	The Respondent submits that the Appeals Guide states that a fair treatment appeal cannot include a decision made under Chapter 3, Part 8, Division 3 of the PS Act, other than a finding under s 91 of the PS Act that a disciplinary ground exists for a person. As such, the Respondent submits that the Commission cannot consider this appeal as a fair treatment appeal.

(b)	The Respondent also submits that the Commission may lack the jurisdiction to hear this appeal as the matter was filed out of time. The decision on disciplinary penalty was provided to the Appellant in a letter that was delivered on 13 December 2023, and the appeal was lodged with the Industrial Registry on 8 January 2024.

(c)	The Respondent submits that it questioned the timeframe when it received the appeal but was advised by the Industrial Registry that as the Registry was closed from 22 December 2023 to 2 January 2024, this period is not considered part of the appeal timeframe.

(d)	The Respondent refers to the recent decision of Lu in which Pratt IC stated that:

… s 38(2) of the Interpretation Act operates (relevantly in this instance) to exclude only the last day upon which filing could occur within the prescribed period if that last day is an 'excluded day'. That is – a day on which the Commission is not open, such as a public holiday. Section 38(2) of the Interpretation Act does not operate to extend the 21-day limitation period by the number of days within that 21-day period where the Commission was closed.

(e)	The Respondent submits that the present circumstances are virtually identical to Lu, and that the Respondent would have raised the jurisdictional barrier initially if not for the advice from the Industrial Registry. Accordingly, the Respondent argues that the Appellant's 21-day time period for filing expired at the close of business on 3 January 2024.

(f)	The Respondent further submits that the Respondent clearly advised the Appellant of the time limit for filing an appeal.

(g)	The Respondent notes that the Appellant filed his appeal on 8 January 2024, and that the Registry was open on 3 January 2024, meaning there was no impediment to the Appellant filing his appeal. The Respondent further notes that the Appellant signed and dated his Appeal Notice on 28 December 2023, and as such there is no apparent reason for the delay in filing.

(h)	The Respondent submits that the appeal was filed five (5) days out of time, with no apparent reason for the delay. The Respondent argues that the 21‑day timeframe for an appeal must be respected and should not be easily dispensed with.

(i)	The Respondent notes that the Appellant's initial submissions on 23 January 2024 included a section titled "Balance of Probabilities" that specifically addressed the disciplinary finding and referenced the Directive. The Respondent also notes that the Appellant stated that "I have attached to this application the decision being appealed against, which is a decision made by Andrew Buckley (A/Deputy Director General) dated 11 November 2023 ("the disciplinary findings decision")".

(j)	The Respondent submits that the Appellant's further submissions filed on 12 February 2024 that he is now "primarily disputing the disciplinary penalty decision" and that he "accepts the disciplinary findings".

(k)	The Respondent argues that the Appellant has changed the basis for his appeal by abandoning his appeal against the disciplinary finding and challenging only the penalty that has been applied.

(l)	The Respondent submits that as the Appellant has clarified that he is only appealing the disciplinary decision, there is no decision for the Commission to make with respect to the disciplinary finding, and the only outstanding issue surrounds the appropriateness of the sanction.

(m)	The Respondent confirms that on 26 June 2022, Ms Kirstin Kenyon, Executive Director, confirmed that she had provided formal feedback to the Appellant in relation to a customer complaint. The Appellant was reminded to act in a professional manner when interacting with members of the public. The Appellant was provided natural justice and had the opportunity to respond at the time.

(n)	The Respondent continues to rely upon Limpus to justify that the management action imposed is not appealable. The requirement for the Appellant to act in alternate duties, undertake training, and apologise are the management action detailed in the letter dated 11 December 2023.

Appellant's Further Submissions 

[26]	The Appellant filed further submissions which are summarised below – 

(a)	The Appellant contests the Respondent's argument that management action cannot be reviewed within the original discipline penalty decision notice, and that management action is not disciplinary action.

(b)	The Appellant has previously submitted that the Commission has jurisdiction to review the matter as either a 'directive decision' and/or a 'fair treatment appeal'. The Appellant contends that only one of these options needs to be true for the Commission to review this matter. The Appellant further contends that the Commission's function to review the matter remains largely unchanged regardless of whether the appeal is considered a disciplinary appeal, a directive decision appeal, or a fair treatment appeal.

(c)	The Appellant argues that the circumstances set out in Lu are distinct from this appeal in multiple important ways. In Lu, the Appellant filed their Appeal Notice 'out of time' when measured against the legislated timeframes. By contrast, the Appellant submitted his Appeal Notice on 28 December 2023, but was advised by the Industrial Registry that an administrative error in the Appeal Notice needed to be rectified.

(d)	The Registry provided this response only to the Appellant's work email which he was not monitoring during the leave period. The Appellant had specifically nominated his personal email on the Appeal Notice to mitigate this risk. The Appellant submits that he was unable to read the Registry's email and respond prior to 8 January 2024. The Appellant argues that if he had received the email to his personal email address, he would have rectified the error immediately.

(e)	The Appellant argues that the substantive matter that he was appealing via the Appeal Notice on 3 January 2024 is identical to the matter that the Appellant submitted in his subsequent Appeal Notice on 8 January 2024. The submission on the subsequent Appeal Notice on 8 January 2024 was merely to correct an administrative error, it was not to submit an entirely new appeal application.

(f)	The Appellant submits that the correction of a minor administrative error should not render his appeal application 'out of time'. The decision subject to this appeal was made on 11 December 2023, which means that the Appellant's Appeal Notice submitted on 28 December 2023 was within the legislated timeframe.

(g)	The Appellant submits that even if his above reasoning is incorrect, the Commission can exercise its discretion to hear matters that are filed 'out of time' in certain circumstances. The Appellant refers to s 564(2) of the IR Act to support this submission.

(h)	The Appellant requests that the initial Appeal Notice be seen as a mitigating factor by the Commission. The Appellant was under the genuine belief that he had successfully submitted his Appeal Notice on 28 December 2023, and only discovered that further action was needed to rectify an administrative error on 8 January 2024.

(i)	The Appellant stresses that 8 January 2024 was the first opportunity that he had to read the Registry's email and correct the administrative error contained within the first Appeal Notice. The Appellant submits that the Respondent does not appear to reference any prejudice that they have suffered due to the 'out of time' period and argues that this is because the Respondent was not prejudiced.

(j)	In the event that the Commission does agree that the Appeal Notice was filed out of time, the Appellant requests that the Commission exercise its discretion to allow the appeal under the circumstances.

(k)	The Appellant argues that as the Respondent raised the timeframe jurisdictional argument after the formal submissions had concluded, the Respondent appears to be relying upon a purely technical defence where the Respondent will suffer no prejudice by not doing so. The Appellant submits that this is contrary to the Model Litigant Principles.

(l)	The Appellant submits that he has consistently submitted during these proceedings that he is primarily appealing the disciplinary penalty decision. The Appellant has made submissions regarding the validity of certain elements of the process, and that Alternative Dispute Resolution and the use of warnings may have been more appropriate instead of a disciplinary decision.

(m)	The Appellant submits that discussion of disciplinary findings is appropriate in the context of addressing a disciplinary penalty decision.

(n)	The Appellant disputes the Respondent's submission that he is changing the basis of his appeal and submits that review and critique of disciplinary findings is reasonable in the context of determining the fairness and reasonableness of a disciplinary penalty. The Appellant argues that it is not inconsistent to appeal a disciplinary penalty, but challenge elements of the disciplinary findings and the process on which the penalty was decided.

(o)	The Appellant argues that the Respondent has introduced additional evidence that was not put to him in the disciplinary or appeal processes. The Appellant takes issue with the email from Ms Kenyon on 29 June 2022 and argues that he was not a party to the email and was not aware of it prior to the Respondent's further submissions.

(p)	The Appellant strongly disputes that the conversation with Ms Kenyon could be classified as 'formal feedback' and argues that the Respondent does not provide any evidence about the content of the conversation or how it could be interpreted as formal feedback. The Appellant does not believe that any written directions or warnings resulted from the conversation, and he was not advised that the conversation would be recorded anywhere or included on his employment record.

(q)	The Appellant also disputes that he was provided with "natural justice and had the opportunity to respond" and argues that the Respondent has not provided any documentation that includes his natural justice response.

(r)	The Appellant argues that it is entirely unfair for the decision maker to rely upon this supposed "formal feedback" discussion and other unsubstantiated allegations without providing the Appellant with the procedural fairness to respond to it. The Appellant further argues that it is unfair that the decision maker did not document what appears to be an important piece of evidence that swayed their decision-making process.

(s)	The Appellant refers to a meeting called by the Respondent on 4 March 2023 where the Respondent identified that the Management Action relating to performing alternative duties for a period of 12 months was related to other factors not included in the decision notice.

(t)	The Appellant claims that the Respondent also identified that there was no particular reason for the 12-month alternative duties on top of the 6-months already away from the Appellant's substantive role. The Respondent allegedly stated that it was a consequence of matters that had not been put to the Appellant as part of procedural fairness and confirmed that the alternative duties would likely be less than the 12 months. The Appellant contends that this further supports his claim that the management action was unfair or unreasonable.

(u)	The Appellant submits that the Limpus decision relied upon by the Respondent does not appear to state that management action is not appealable. The Appellant argues that management action is often the result of administrative decisions, which can be appealed via multiple pathways including directive decision appeals and fair treatment appeals.

(v)	The Appellant further argues that Limpus can be distinguished from the present matter as that matter involved management action being imposed months before the disciplinary decision, whereas in the present case, the disciplinary action and management action were communicated to the Appellant on the same day as part of the same decision notice.

Consideration

The out of time argument

[27]	The Respondent raises a jurisdictional objection to the appeal being heard on the basis that the appeal was filed outside of the 21-day appeal timeframe. The decision was delivered to the Appellant on 13 December 2023 and the appeal was filed on 8 January 2024. 

[28]	The Respondent submits that they questioned the timing of the appeal when it was first received and were advised by a Registry Officer that as the Registry was closed from 22 December 2023 to 2 January 2024, this period is not considered part of the appeal timeframe. 

[29]	The Respondent refers to the recent decision in Lu v State of Queensland (Queensland Health) ('Lu') in which Commissioner Pratt considered s 38(2) of the Acts Interpretation Act 1954 in determining that the section does not operate to extend the 21-day limitation period by the number of days within that 21-day period where the Commission was closed. 

[30]	The Respondent submits that the Appellant's 21-day time period for filing expired at the close of business on 3 January 2024, and as the Registry was open on this day, there was no impediment to the Appellant lodging his appeal by the due date.

[31]	The Appellant emailed the Appeal Notice to the Registry on 28 December 2024 as evidenced by an email attached to his submissions. The Appeal Notice confirms the Appellant's submission that he provided his personal email address as the contact address on the Appeal Notice as he was not monitoring his work email during the leave period.

[32]	The Registry emailed the Appellant on 3 January 2024, to his work email address, advising the Appellant to amend his Appeal Notice if he was seeking to appeal only one decision, or lodge another Appeal Notice if he was seeking to appeal two separate decisions. The Appellant amended the Appeal Notice and filed the amended Notice on 6 January 2024. 

[33]	Unlike in the circumstances in Lu, the Appellant does not rely upon the time period during which the Registry was closed to seek an extension of the 21-day time period in order to file his appeal. The Appellant lodged the Appeal Notice within the 21-day timeframe but was advised twelve days later of an error on the form requiring him to resubmit an amended Notice. This email was inadvertently sent to the Appellant's work email address rather than the personal address provided in the Appeal Notice. In these circumstances, I accept the Appellant had a satisfactory explanation for the appeal ultimately being filed outside of the 21-day time period. I consider it would be unjust to not extend the time period to accept filing of the appeal where the Appellant had taken clear action to exercise his appeal rights. In circumstances where there is no evidence of prejudice to the Respondent, leave is given to extend the timeframe for filing the appeal in accordance with s 564(2) of the IR Act.

The framing of the appeal

[34]	The decision to be determined on appeal is whether the decision dated 11 December 2023 was fair and reasonable. Despite the Appellant's submissions, which appear to take issue with the disciplinary finding, the Appellant states the following – 

To be clear, I am not requesting the Commission disturb the overall disciplinary findings decision. There are elements of how the Respondent has substantiated the allegations that I believe need to be weighed when considering an appropriate and proportionate disciplinary penalty. I am seeking the Commission to consider disturbing the disciplinary penalty decision specifically. 

As a further clarification to my original submissions, as part of the relief I am seeking from the Commission, I am seeking whether the management action relating to alternative duties is fair and reasonable.

[35]	The decision maker referred to his previous decision to substantiate an allegation that the Appellant spoke inappropriately about the Executive Director, Ms Kirstin Kenyon, to the team. On the basis of this substantiated conduct, the decision maker determined that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action in accordance with s 91(1)(h) of the PS Act.

[36]	In the decision, the decision maker outlined the following reasons for his decision – 

I have carefully considered all the material before me, including your response. I disagree with your statement that this matter would be better handled under the Positive Performance Management Directive. As previously explained, this matter is serious, you are in a management position with the department and long-standing public servant of over 29 years. I believe the disrespect you have shown your Executive Director is inexcusable. As this is a singular incident, I have determined to impose discipline action in the form of a reprimand. 

In reaching my decision on disciplinary action to be taken, I have had regard to the factors set out in PSC Directive: Discipline 05/23 and in particular note:

•	the seriousness of the substantiated allegation – namely that your position of manager is to model appropriate behaviour and respect for all employees
•	while you do not recall saying the words as alleged you accept the findings and agree that your actions were unacceptable
•	that a reprimand is the lowest disciplinary penalty available and while this allegation is serious I note that this is a singular incident; and
•	my expectation that an experienced, long term public servant such as yourself would have a fulsome understanding of the obligations set out in the Code of Conduct for the Queensland Public Service. 

[37]	The decision further outlined the following – 

In addition, I have determined to impose the following management actions.

•	Temporary alternative duties commensurate with your classification level at Verde Tower, 445 Flinders St, Townsville for a period of 12 months starting from when you are medically cleared to return to work (attached)
•	During this 12 month period, you are to complete all modules of the department's Leading at DES training program (attached)
•	Provide the team with a verbal apology for your behaviour; and
•	Provide Kirstin with a written apology

…

In reaching my decision on the abovementioned management actions, I have had regard to the following:

•	Temporary alternative duties will allow you the space and opportunity to fully partake in the training and reflect on your own management style, this will also facilitate a transition to return to your substantive role once the training is completed and you have demonstrated the learnings from this training.
•	The team are currently undergoing a cultural capability uplift and need stability at this time and therefore due to the management concerns raised during the investigation process I do not find it appropriate for you to be managing the team whilst this is underway, however once you have completed the above training you may be included in elements of this exercise; and
•	Providing an apology to both Ms Kenyon and the team is necessary to rebuild the relationships.

[38]	The Appellant states that the grounds for seeking this appeal are based on the contention that the decision is unfair and unreasonable. Although the Appellant states that he disputes the disciplinary penalty, his submissions indicate that it is the management action imposed in the decision that he objects to rather than the actual disciplinary penalty of a reprimand.  

[39]	The Respondent submits that the management action outlined in the decision is not appealable on the basis that it is not disciplinary action. 

[40]	Pursuant to s 131(1)(c), an appeal may be filed against a disciplinary decision. A 'disciplinary decision' is defined in s 129 as a decision under a disciplinary law to discipline a person (other than by termination of employment) including the action taken in disciplining the person. The action taken in disciplining the Appellant in this matter is the decision to impose a reprimand. The actions outlined as 'management action' do not form part of the decision to discipline the Appellant, nor the disciplinary action taken  against the Appellant. Accordingly, the decision as it relates to management action may not be the subject of an appeal against a disciplinary decision. 

Jurisdiction pursuant to s 131(1)(d) – A fair treatment decision

[41]	The Appellant submits that the management action may be appealed as a fair treatment decision pursuant to s 131(1)(d) of the PS Act on the basis that a fair treatment decision includes decisions a public sector employee believes are unfair and unreasonable. Section 91 of Chapter 3, Part 8, Division 3 of the PS Act states that:

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.

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;

[42]	A fair treatment appeal cannot include a decision made under Chapter 3, Part 8, Division 3 of the PS Act, other than a finding under s 91 of the PS Act that a disciplinary ground exists for a person. As the decision under appeal is one made under Chapter 3, Part 8, Division 3 of the PS Act, and does not arise out of a finding under s 91, it cannot be the subject of a fair treatment appeal.

Jurisdiction pursuant to s 131(1)(b) – A directive decision

[43]	In the alternative, the Appellant contends that the management action is appealable as a directive decision. Section 131(1)(b) of the PS Act provides for an appeal of a directive decision defined in s 129 as a decision to take, or not to take, action under a directive. 

[44]	The Respondent submits that management action is not appealable, citing Marsh v State of Queensland (Department of Education) ('Marsh') and Limpus v State of Queensland (Department of Environment and Science) ('Limpus').   

[45]	In Marsh, Commissioner Hartigan (as she then was) determined that a decision to counsel an employee and direct the employee to re-read the Code of Conduct was not disciplinary action and accordingly could not be the subject of a disciplinary appeal. Commissioner Hartigan proceeded to determine that if the matter was to have been filed as a fair treatment appeal pursuant to s 91 of the PS Act, the decision would have been upheld.

[46]	In Limpus, Commissioner Pidgeon determined that management action in that matter was not disciplinary action as it did not form part of the decision to take disciplinary action. 

[47]	In both Marsh and Limpus, the Appellant did not seek to have the appeal determined as an appeal against a decision under a directive. 

[48]	It would be unjust to deny an employee an opportunity to appeal a decision relating to management action simply on the basis that such a decision was made in the context of a disciplinary process. Decisions about management action are appealable as an appeal against a directive decision, or through a fair treatment appeal in limited circumstances. I also note that decisions about management action are not outlined in the list of decisions about which appeals cannot be made pursuant to s 132 of the PS Act.

[49]	The decision reflects consideration of the Directive when determining the management action to be taken when the decision maker referencing the following clause of the Directive – 

Management action is independent of the disciplinary process and should be considered as the first response and/or alternative to the disciplinary process in managing unacceptable conduct or performance. Following a disciplinary finding (refer to section 90), management action can accompany or substitute for disciplinary action. Procreate, management action can replace an ongoing disciplinary process at any stage. While not limited, management action is predominantly focused on corrective action.

[50]	The Directive provides that management action may be taken as part of a disciplinary process. The decision under appeal is one that involves management action taken as part of a disciplinary process. Accordingly, I consider that the Appellant may appeal the decision as it relates to management action as an appeal of a directive decision, that is the Directive. 

[51]	The Appellant's Appeal Notice indicates that the decision appealed against is a disciplinary decision. Whilst the decision containing the disciplinary action is a disciplinary decision, the same decision also outlined the management action. In these circumstances, it was perhaps understandable that the Appellant indicated that it was an appeal against a disciplinary decision rather than a directive decision. The Appellant’s submissions also seem to reflect a view that the management action was part of the disciplinary ‘penalty’. To avoid unnecessary delay associated with re-filing, I will consider this appeal as an appeal against a directive decision. There is no prejudice to the Respondent in proceeding in this manner as the same test applies under the PS Act, that is, whether the decision was fair and reasonable. 

Appellant's work performance history

[52]	A substantial part of the Appellant's submissions relate to the disciplinary finding on the basis that the Appellant believes the disciplinary action is disproportionate. As stated above, the only disciplinary action is that of a reprimand and no submissions are made regarding this action. The Appellant's submissions will be considered as they relate to the management action.

[53]	The Appellant submits that he has an exemplary work performance history and no discipline history in his 29-year career. He further states that he has taken full accountability for his actions and does not seek to dispute the overall view that he made a singular lapse in judgement that resulted in the incident. 

[54]	The Respondent refers to an incident in 2022 regarding a complaint about the Appellant.  The Respondent submits that on 26 June 2022, Ms Kristin Kenyon, Executive Director, confirmed that she had discussed the matter with the Appellant and reminder him to act in a professional manner when interacting with members of the public. The Respondent submitted the email from Ms Kenyon to Workforce Relations and Integrity at DES Complaints and three other departmental employees at the time stating the following – 

I have discussed the matter with Mike Joyce and he has provided further information about the incident as attached. He has been reminded to act in a professional manner when interacting with members of the public and not to park government assets on the street. 

[55]	The Appellant disputes the characterisation of his conversation with Ms Kenyon as 'formal feedback', stating that from his recollection there were not written directions or warnings resulting from the conversation. The Appellant states that he objects to the Respondent raising 'new evidence' in this matter. 

[56]	The email is contemporaneous evidence that the Appellant had been reminded to act in a professional manner in 2022, irrespective of the circumstances that gave rise to the complaint. The Appellant does not deny that this conversation occurred, and there was no assertion by the Respondent that written directions or warnings resulted from the conversation. It was open to the Respondent to refer to this event in response to the Appellant's submission that he had an exemplary work performance history.

Alleged deficiencies in the decision

[57]	The Appellant refers to cl 9.4(d) of the Directive which provides the following – 

a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence

[58]	The Appellant also refers to the requirement in the Public Service Commission's Chief Executive Guideline 01/17 that "the evidence being relied on for each ground (for example, refer to relevant parts of the investigation report" be provided.

[59]	The Appellant was provided with the investigation report as part of the disciplinary process. In circumstances where the allegation related to a single comment and the Appellant was referred to page numbers within the investigation report, reference to specific paragraph numbers was not required. The evidence relied upon was clear to the Appellant and there was no indication that the Appellant did not understand the evidence before the decision maker.  

[60]	The Appellant submits that the decision is deficient because the decision maker does not specify how they determined that they did not accept his explanation that his "poor choice of words" was not made "in desperation to settle the situation". The Appellant contends that there has not been evidence presented that suggested that he repeatedly used an offensive term, with the investigation indicating that there was a singular use of a term. 

[61]	The decision clearly stated that the allegation related to a singular incident which was taken into account in determining the action to be taken. The decision on appeal does not state that the decision maker did not accept the Appellant's explanation. In circumstances where the decision maker relied upon the evidence of the investigation report which contained witness accounts of the context in which the statement was made, it was open to the decision maker to place limited weight on such an explanation. 

[62]	The Appellant contends that the decision maker failed to consider cl 7.1 of the Directive which states that an act or omission does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds in s 91 of the PS Act. 

[63]	The Directive provides that a discipline ground does not arise where conduct fails to satisfy the work performance and personal conduct principles. However, the disciplinary finding in this matter was that the Appellant had breached a standard of conduct contained in the Code of Conduct. The Directive provides that disciplinary action may be taken where a breach of a standard of conduct is sufficiently serious, and the delegate has formed a view that management action is not likely to adequately address the matter. 

[64]	The Respondent submits that the decision maker considered that the matter was serious enough to commence the disciplinary process on the basis that management action would not adequately address the matter due to the level of disrespect shown by the Appellant's behaviour. Given the seniority of the Appellant and his length of service, it was open to the decision maker to find that a disciplinary ground existed. 

[65]	The Appellant submits that as the matter was an isolated incident "in extenuating circumstances over a 29-year career", the matter should have been dealt with under the Positive Performance Management Directive 15/20. On the basis that the allegation related to conduct rather than performance, there was no obligation for the Respondent to apply positive performance management principles before commencing the disciplinary process. 

The management action

[66]	The Appellant submits that the management action in addition to the disciplinary action is excessive, stating that the proposed management action penalises him further and does not serve a genuine purpose. The Appellant states that he is willing to provide the verbal and written apologies and complete the Leading at DES training program. However, the Appellant contends that while alternative duties may be appropriate during the period the action occurs, the action would take only weeks to complete. The Appellant contends that the team going through 'cultural capability uplift' with a different manager decreases stability and he will miss key elements of the cultural capability uplift by being separated from the team for 12 months. The Appellant contends that the decision to perform alternative duties forms part of the disciplinary action due to the "excessive timeframe and its punitive nature".

[67]	The decision maker outlined in the decision that as part of the management action, the Appellant was to undertake temporary alternative duties commensurate with his classification level for a period of 12 months.

[68]	The decision maker outlined his consideration of this action, stating that temporary alternative duties will allow the Appellant the space and opportunity to fully participate in the training and reflect on his own management style. Whilst I accept the Appellant's submission that the training will not take 12 months to complete, it was open to the decision maker to determine that such a transfer was required to allow the Appellant to reflect on his own management style. The transfer was not simply to allow for the time to undertake the training, but rather to demonstrate the learnings from the training. I also note that there was no prejudice to the Appellant in terms of salary or entitlements from this decision. 

[69]	The Appellant contends that his absence will decrease stability and he will be missing key elements of the cultural capability uplift by being separated from the team. It was open to the decision maker to prioritise management action to improve the Appellant's management style over potentially decreased stability due to the Appellant's absence. The decision also states that the Appellant may be included in elements of the exercise upon completion of the training. Such inclusion would minimise the likelihood of the Appellant missing key elements of the uplift. 

[70]	The Appellant's submissions indicate that he does not object to participating in all of the modules of the Leading at DES training program and is willing to provide the team with a verbal apology and a written apology to Ms Kenyon. 

[71]	After considering all the circumstances, the decision in this matter as it relates to management action was fair and reasonable in the circumstances. 

Order

[72]	I make the following order:

1.	Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.