QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

PARTIES:	
	PA v State of Queensland (Queensland Health) [2022] QIRC 027

PA
(Appellant)

v

State of Queensland (Queensland Health)
(Respondent)
	
CASE NO:
	PSA/2021/395
	
PROCEEDING:
	Public Service Appeal – Appeal against a disciplinary decision
	
DELIVERED ON:
	3 February 2022	
HEARD AT:

MEMBER:
	On the papers

Pidgeon IC
	
ORDERS:	Pursuant to section 562C(1)(a) Industrial Relations Act 2016 the decision appealed against is confirmed.
	
CATCHWORDS:

LEGISLATION:

CASES:	PUBLIC SERVICE - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - public service appeal - appeal against a fair treatment decision - where the appellant engaged in inappropriate conduct - whether the decision to reduce remuneration of the appellant was fair and reasonable.

Industrial Relations Act 2016, s 562B, s 562C

Public Service Act 2008, s 194

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

Gilmour v Waddell & Ors [2019] QSC 170

Reasons for Decision

Background

[1]	PA (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Manager of the Mt Isa Digital Partnership Team (Mt Isa DPT), Customer Services Branch, eHealth Queensland.  The role is at the AO6 classification level. 
 
[2]	Mt Isa DPT is a site within a larger DPT called the Northern DPT.  Northern DPT is managed by a DPT Manager (AO8) and includes sites at Mt Isa, Townsville and Mackay which each have a site manager at the AO6 classification level. 

[3]	In their role as Manager, Mt Isa DPT, the Appellant was responsible for the management of five positions. These were:

•	Senior Technology Officer (AO4) (Employee 1);

•	Senior Technology Officer (AO4) (Employee 2);

•	Admin Technology Officer (AO3) (Employee 3);

•	Technology Officer (AO3) (Employee 4); and

•	Technology Officer TMP (AO3) – currently unoccupied.  

[4]	Between 16 July 2020 and 26 July 2020, three of the four individuals who report to the Appellant lodged formal complaints including allegations of inappropriate conduct (including bullying and harassment) and separately, racial and religious discrimination. Additional complaints were received from clients of the Appellant about their conduct in June and July 2020.  These complaints were similar to the allegations made by the three employees.

[5]	The allegations against the Appellant by the three employees were assessed by the Department of Health Ethical Standards Unit as suspected corrupt conduct due to the seriousness of the allegations and the reporting relationship that existed between the Appellant and the three complainants. 

[6]	Due to the seriousness of the allegations, the suspicion of corrupt conduct and the potential complexity of matters involving many complainants and witnesses, the Deputy Director-General, eHealth Queensland engaged an external investigator to investigate the allegations.

[7]	Dr Joshua Shingles, Associate Director, Mapien commenced the investigation in August 2020 and provided the investigation report in September 2020. the Appellant was interviewed throughout the investigation process and was provided an opportunity to respond and present any information they chose to include as part of the investigation. 

[8]	The investigation report identified 22 separate allegations of inappropriate conduct against the Appellant.  Following the investigation process, Dr Shingles recommended that three allegations were substantiated, seven allegations were partially substantiated, and 12 allegations were unsubstantiated.  

[9]	Following receipt of the investigation report, a decision was made to accept the findings and commence a disciplinary process.  However, before the process could commence, the Appellant commenced a period of sick leave between 9 November and 21 December 2020.  the Appellant also had leave approved between 21 December 2020 and 26 January 2021. On 16 December 2020, the Appellant was informed that the process would be placed in abeyance until their return from leave in 2021.

[10]	On 11 February 2021, the Appellant received the first notice to show cause letter dated 27 January 2021. This letter condensed the substantiated and partially substantiated allegations referred to at [8] into five allegations.  

1.	Between November 2019 and July 2020, you engaged in behaviour that constituted bullying and harassment towards [an employee], Senior Technology Officer, Mt Isa Digital Partnership Team (DPT), Customer Services Branch.

2.	In April 2020, you engaged in inappropriate conduct toward [an employee], Senior Technology Officer, Mt Isa DPT, Customer Services Branch and [an employee], Technology Officer, Mt Isa DPT during a Teams meeting. 

3.	Between April 2020 and July 2020, you engaged in inappropriate conduct toward [an employee]. 

4.	On two occasions between June 2020 and July 2020, you were rude and abrupt to staff members of the North West Hospital and Health Service when they attended the Mt Isa DPT office for assistance. 

5.	You have engaged in religious discrimination against [an employee]. 

[11]	On 2 March 2021, the Appellant provided their response.

[12]	On 12 May 2021, the Appellant received a second notice to show cause letter dated 10 May 2021.  Following this, the Appellant's union, Together Queensland (TQ) raised concerns about the second show cause letter.  On 21 July 2021, representatives of the Respondent met with the Appellant and TQ representatives to discuss the dispute that had been raised. Following discussions, agreement was reached between the parties that the second show cause notice would be amended to provide further explanation of how the delegate reached their findings for each allegation, including the evidence relied upon. The letter was then reissued to the Appellant on 16 August 2021.

[13]	On 10 September 2021, following an approved request for an extension of time to respond to the further show cause notice, the Appellant provided their response. 

[14]	On 27 October 2021, the Appellant received a decision on disciplinary action to be taken against them.  

[15]	The decision on disciplinary action made by Executive Director Michael Berndt found that the substantiation of allegations 1-4 amounted to the contravention without reasonable excuse, of a relevant standard of conduct that is sufficiently serious to warrant disciplinary action. The substantiation of allegation 5 saw the Appellant guilty of misconduct.

[16]	Mr Berndt informed the Appellant that the following disciplinary action would be implemented:

-	reduction in classification level to an AO5
-	change in duties to no managerial or supervisory responsibilities of any staff

The Appeal

[17]	I am satisfied that the Appellant is an employee of the Respondent with standing to bring an appeal and that the decision subject of the appeal is appealable. The appeal was filed within the relevant timeframes. 

[18]	The appeal notice makes it clear that the decision on disciplinary penalty is the only one being appealed against:

I am submitting this appeal as I believe the decision on disciplinary penalty is unfair and unreasonable.  I believe the penalty of reducing my classification level from AO6.4 to AO5 is harsh as it will have significant financial implications on myself, specifically as a mature age, single [person] nearing retirement.

[19]	the Appellant requests that the decision be set aside and substituted with a decision imposing a lower monetary sanction or a reduction in pay point from AO6.4 toAO6.1.

[20]	I am proceeding on the basis that the decision being appealed against is the disciplinary action decision received 27 October 2021. 

[21]	Therefore, the issue to be decided in this appeal is whether it was fair and reasonable for Mr Berndt to determine the disciplinary penalty of reduction of classification level from AO6.4 to AO5.

Is the Appellant entitled to appeal?

[22]	Section 194 of the PS Act lists various categories of decisions against which an appeal may be made.  Section 194(1)(b) provides that an appeal may be made against

(b) 	a decision under a disciplinary law to discipline-
(i) 	a person (other than by termination of employment), including the action taken in discipling the person; ...
[23]	The appeal notice was filed with the Industrial Registry on 17 November 2021 within 21 days of the decision being received on 27 October 2021. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time. 

Appeal Principles

[24]	Section 562B(3) of the Industrial Relations Act 2016 (IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".

[25]	Relevantly to this matter, s 562B(4) of the IR Act states that

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission-

(a)	must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
(b)	may allow other evidence to be taken into account if the commission considers it appropriate.

[26]	Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal. 

[27]	A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. 

[28]	In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:

(a)	confirm the decision appealed against; or
…

(c)	For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 

[29]	The relevant principles in considering whether a decision is 'unreasonable' were discussed by Ryan J in Gilmour v Waddell & Ors [2019] QSC 179:

The focus of a review of the reasonableness or unreasonableness, of a decision is on whether is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power. 

A court considering an argument that a decision is unreasonable is not undertaking a merits review.  If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it. 

The plurality in Li said:
…
	…when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice.  That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful…

…there is an area within which a decision maker has a genuinely free discretion. That area reside within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision-maker….

…it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object…The legal standard of reasonableness must be the standard indicated by the true construction of the statute.  It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

…Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

[30]	Directive 14/20: Discipline (the Directive) addresses the relevant factors to be considered in proposing appropriate and proportionate disciplinary action:

8. 	Discipline process
…
8.5		Show cause process for proposed disciplinary action
…
(d)	In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
(i)	The seriousness of the disciplinary finding
(ii)	The employee's classification level and/or expected level of awareness about their performance or conduct obligations
(iii)	Whether extenuating or mitigating circumstances applied to the employee's actions
(iv)	The employee's overall work record including previous management interventions and/or disciplinary proceedings
(v)	The employee's explanation, if any
(vi)	The degree of risk to the health and safety of employees, customers and members of the public
(vii)	The impact on the employee's ability to perform the duties of their position
(viii)	The employee's potential for modified behaviour in the work unit or elsewhere
(ix)	The impact a financial penalty might have on the employee
(x)	The cumulative impact that a reduction in classification and/or pay-point may have on the employee
(xi)	The likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

[31]	The meaning of 'misconduct' was considered in the decision of Coleman v State of Queensland (Department of Education) [2020] QIRC 032 where Merrell DP held:

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

Appellant's Appeal

[32]	the Appellant's appeal appears to be founded on two grounds. The first is the harshness of the disciplinary decision given their financial circumstances.  The second is that the Appellant says Mr Berndt has also given weight to previous conduct matters said to have never been raised with the Appellant, and the Appellant having only been made aware through the disciplinary penalty decision. 

Respondent's submissions

[33]	The Respondent says that the disciplinary penalty was imposed following: receipt of several complaints; an independent investigation; and a thorough disciplinary process. 

[34]	The Respondent says that each of the considerations listed at [30] were taken into account by the decision maker in reaching a decision.  The Respondent asked that along with the submissions filed, I refer to the reasons for decision pages 2-7. 

Alternative penalties suggested by the Appellant

[35]	The Respondent says that the decision maker specifically considered alternative penalty options put forward by the Appellant and addressed these in the decision letter.  With regard to the request in this appeal that the decision be substituted with either a lower monetary sanction; or reduction of paypoint rather than classification level, the Respondent says that it is critical to note that the Appellant does not dispute the disciplinary findings, only the severity of the penalty. The Appellant does not submit that no penalty should be imposed, rather, seeks for a lesser penalty to be imposed.

[36]	With respect to the alternative penalty sought, the Respondent says that the Appellant has acknowledged that there are limited AO6 positions with the Appellant's skillset in eHealth Queensland, particularly in regional locations and only one in Mt Isa.

[37]	With regard to a substituted decision that the Appellant remain in an AO6 role, the Respondent says:

(a)	At the Appellant's own volition, [they have] chosen to sell their property in Mt Isa and permanently re-locate [redacted].
(b)	The Appellant has claimed throughout this process that [they] cannot live and work in Mt Isa.
(c)	A reduction in paypoint (as sought by the Appellant) from AO6.4 to AO6.1 would result in the Appellant being forced to return to Mt Isa to fufil the functions of their role as the Mt Isa DPT Manager.
(d)	There are no other AO6 roles that the Appellant could fulfil, as all AO6 roles in regional locations involve the management of staff. 
(e)	There are currently no permanently vacant AO6 positions that the Appellant could be permanently appointed to elsewhere in the Respondent's establishment.

Disciplinary findings are serious and are not in dispute

[38]	The Appellant is employed as an AO6 DPT site manager and in that role, manages staff.  Three of the four staff reporting to the Appellant have substantiated complaints against the Appellant and these have been assessed as breaches of the Code of Conduct for the Queensland Public Service.

[39]	The substantiated behaviour is serious and warrants a serious penalty.  Allegations put to the Appellant involved inappropriate dealings with team members based on their cultural diversity and one allegation involved conduct associated with the religious beliefs and practices of one of their reporting staff.

[40]	The Appellant has been afforded substantive and procedural fairness through the investigation and disciplinary process.  Together Queensland have provided high quality representation to the Appellant and at no point have concerns been raised about the disciplinary findings.

[41]	While there were issues with the second notice to show cause, these were addressed by agreement between the parties and the process continued. 

[42]	The Appellant has voluntarily sold their property and moved from Mt Isa and no longer lives where their substantive position is based. the Appellant's substantive position cannot be filled remotely as it need to manage the staff and work located on-site in Mt Isa. 

Appellant's submissions in reply

[43]	The Appellant says that the penalty is disproportionately harsh and that it was unreasonable for matters never directly raised with them to be considered when determining penalty.

[44]	The Appellant acknowledges that they are not appealing the disciplinary finding but points out that they continued to dispute the findings throughout the process. 

Mandatory considerations

[45]	It is submitted that the employer has failed to consider the mandatory considerations listed at [30]. A failure to appropriately consider a mandatory consideration renders a decision unlawful.

[46]	While some consideration is given to cl 8.5(d)(ix) of the Directive, it is minor in nature and does not acknowledge the significant financial detriment that would be suffered by someone towards the end of their career. 

Penalty is harsh 

[47]	The Appellant says that given their mature age and nearing retirement, the penalty is harsh. The financial calculations undertaken by the Appellant to include in their response to the second show cause notice show that if the current penalty of lowering to AO5.1 was implemented, there is a potential to suffer a loss of over $135,000 or upwards of $215,000 dependent on years worked until retirement. 

[48]	If the penalty were to be reduced to lowering the increment from AO6.4 to AO6.1, there will be a lesser overall impact and the penalty would no longer be harsh. 

[49]	The overall impact was not acknowledged by the Delegate and has not been addressed in the Respondent's submissions.  As impact of financial penalty must be considered, not to acknowledge it renders the decision unfair and unreasonable. 

Reliance upon material not previously presented

[50]	In the penalty outcome letter at page 6, Mr Berndt noted that he had considered two previous conduct matters that arose in March and June 2019.   the Appellant says they were never advised of these concerns in the way that they have been described nor informed that they would be considered by Mr Berndt in his policy considerations. 

[51]	The information regarding the March and June 2019 was sought by TQ and a review of that material makes it clear that these conduct matters were not presented to the Appellant in the way the Delegate suggests. 

[52]	As the material was not provided to the Appellant to allow them to respond to and address the concerns, the information ought not to have been considered and then relied upon by the Delegate.  This demonstrates a fatal flaw in the process. 

[53]	The employer has obligations under the PS Act to pro-actively manage performance and conduct issues.  The employer's failure to comply with the management principles of the PS Act should not now be utilised to the detriment of the Appellant. 

Alternative penalty

[54]	It is inaccurate to say that there are no AO6 roles that could be filled by the Appellant as all require the management of staff.  TQ points to many AO6 roles across the service that do not require management or supervision of staff, such as project officer roles.

[55]	TQ says that it is concerned that in determining the final penalty decision, the employer has considered that there are currently no permanent AO6 roles the Appellant could be appointed to.  This is not a consideration under cl 8.5(d) of the Directive.

[56]	If the employer has determined to lower the employee's increment or classification level, it is the employer's obligation to find an alternative role.

Available relief

[57]	The alternative proposal put by the Appellant is either a lower monetary sanction, or a reduction in increment level from AO6.4 to AO6.1. If the penalty were reduced, the Appellant would be prepared to return to their substantive role.  This would be fair and reasonable considering all the circumstances and the severe and negative impact the penalty would have on the Appellant's personal and professional life. 

Respondent's submissions in reply

[58]	The Respondent again states that it considered the matters at cl 8.5(d).  The delegate was not persuaded by the Appellant's argument with regard to the financial impact the proposed disciplinary action would have.  the Appellant may disagree with the outcome but it does not render the decision unlawful or even unreasonable. 

[59]	With regard to the Appellant's argument regarding the harshness of the penalty, the Respondent says that harshness is a consideration in unfair dismissal proceedings but that the question in this appeal is whether the decision was fair and reasonable.  Findings made by the Department, which are reasonably open to it, should not be disturbed on appeal. As stated by Ryan J in Gilmour, 'if a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.'

[60]	The Respondent repeats its submissions about the seriousness of the conduct the Appellant engaged in and that the conduct warrants a serious disciplinary penalty. 

[61]	The Respondent says that it was open to it to terminate the Appellant's employment, given they were found to have engaged in misconduct as defined by the PS Act and several instances of bullying. Taking into account the full range of matters, the Respondent elected a mid-range penalty rather than the lesser penalty of reduction in paypoint and allow the Appellant to keep their position as a manager of staff whom they had discriminated against and bullied. 

[62]	The Respondent says that discipline is meant to be of significance to the affected employee. If minor penalties were imposed in response to serious inappropriate behaviour, there would be little public deterrence for such behaviour.  There is public interest in penalties being sufficiently significant to send signal to the Appellant and potentially other employees that such behaviour is not tolerated. 

[63]	With regard to what TQ says is 'material not previously presented' the Respondent concedes that no formal action occurred resulting from these matters but asserts that they were raised with the Appellant at the time. 

[64]	The Respondent says that the Appellant has previously conceded that there are limited AO6 positions in eHealth Queensland.  It is disingenuous and not within the Appellant's knowledge to now say that there are AO6 roles elsewhere and then claim that the Respondent is obligated to find an alternative role.  It appears that the Appellant is saying that a job should be created for them. 

[65]	Creating a job every time someone engages in seriously inappropriate and possibly illegal conduct, is not in the public interest, nor does it present an appropriate deterrent to inappropriate conduct. 

[66]	With regard to the Appellant's statement that in order to support them being subject to a lesser penalty and remaining at an AO6 level, they would be prepared to return to their substantive role in Mt Isa, the Respondent says that returning to the role of manager in Mt Isa is not an option.  

[67]	The Respondent says that the conduct was assessed by the Ethical Standards Unit as corrupt conduct. Three of the four employees reporting to the Appellant's substantive position raised formal complaints and are Public Interest Disclosers. the Appellant has noted throughout the process that they struggle to manage these people due to their varied cultural and religious backgrounds. the Appellant has also stated that they had to sell and move away from Mt Isa and relocated with the consent of the Respondent.

Consideration

[68]	The Appellant raises two grounds of appeal.  I will deal with each in turn. 

Financial impact of penalty

[69]	It is clear that the disciplinary penalty will have a significant impact on the Appellant given their age and proximity to retirement.  I note that the Respondent does not deny that the impact is significant and in fact states that it deliberately chose a penalty that would reflect the seriousness of the conduct. 

[70]	I have reviewed the decision letter and with regard to financial impact on the Appellant, I note that at page 2, Mr Berndt says

I have carefully considered all the evidence available to me in relation to the above disciplinary findings.  I have had regard, in particular, to the entirety of your response provided on 10 September 2021 and note the following matters raised by you in relation to the appropriateness of the proposed disciplinary action.
You say from the commencement of this process you have been impacted by:
-	not completing rosters normally scheduled, such as escalation on-call and subsequent management of after-hour incidents and estimate a reduction in income of approximately $20 000 (exclusive of superannuation contributions and accumulation) 
-	exclusion from management training opportunities that your peers have undertaken as recent as July and August 2021. 
Additionally, your response states that the proposed disciplinary penalty of a reduction in classification level will cause substantial financial stress and hardship due to your mature age and marital status as a single [person], including your ability to maximise voluntary superannuation contributions until you retire.
….
Overall, you submit that the penalty proposed is extremely harsh and unreasonable. 

[71]	The letter goes on to say

…I have considered very carefully the submissions you make with respect to the proposed disciplinary action.  However, there is nothing in the submissions made by you that lead me to consider the imposition of a different disciplinary penalty other than the proposed: 
-	reduction in classification level to an AO5 
-	change in duties to no managerial or supervisory responsibilities of any staff.
In reaching my decision on disciplinary action to be taken, I have had regard to the following:
-	the seriousness of the disciplinary finding, in particular your conduct the subject of Allegation five is extremely serious and note:
o	it was completely inappropriate to question (employee) repeatedly about his religious beliefs/practices and completely unacceptable to propose to disadvantage him by telling him he had to make up work time, either before or after his shift so that he could take part in his religious practices during work time.
o	this is a significant departure from the acceptable standards expected of a public service manager, and your actions in the form of unreasonable management action is an abuse of the privilege and confidence enjoyed by a public service manager.
o	you did not treat (employee) respectfully in relation to his religious beliefs and practices, nor have you complied with the manager responsibilities as set out under the Department of Health Anti-discrimination, human rights and vilification Human Resources Policy (E2).
o	your conduct demonstrates an escalating pattern of inappropriate and disrespectful behaviour, which is completely unacceptable as a public service manager.
o	your conduct poses a serious work, health and safety risk to customers and eHealth Queensland employees
o	Department of Health and Hospital Service Employees ought to be able to come to work without being discriminated against because of their religious beliefs.
-	the seriousness of the disciplinary finding, in particular your conduct the subject of Allegation one to four is very serious…
….
-	your classification level (AO6) and the expected level of awareness about your conduct obligation, where there is a reasonable expectation that a manager would:
o	approach staff in a respectful manner, even in situations where they believe that staff have failed to follow management direction
o	utilise the multiple tools/resources available to guide managers on how to manage employee performance appropriately
o	treat our customers with the utmost respect and I do not consider that managing COVID19 restrictions is a reasonable excuse for the tone and behaviour you exhibited towards (employee) was appropriate
o	act in a supportive manner towards employees under their supervision and to encourage teamwork between peers
o	act in a supportive manner and to work collaboratively with their team members to solve problems
o	to be supportive of flexible working arrangements and that these are to be based on what works best for the individual whilst taking into account service delivery as outlined in the Department of Health Flexible working arrangements Human Resources Policy (C5)
-	I have carefully considered your
o	Age (54 years old)
o	length of service within eHealth Queensland (4 years, 8 months)
o	submissions regarding the financial and mental hardship you have, and will suffer if the penalty is implemented, and the cumulative impact this will have on your ability to achieve your desired retirement plans
o	submission that your reputation and privacy in Mt Isa came to an untenable point resulting a loss of friendship and community. I note that if this is a correct assessment of the situation you find yourself in, in the Mt Isa community, that it is your own actions which have brought about that situation. I accept your submission and consider your employment relationship in Mt Isa has irretrievably broken down.  While I have a significant empathy with your situation, I consider the seriousness of your conduct and the Department's duty of care to manage frontline IT support to the HHS, and our work, health and safety obligations to our staff outweigh these matters.
….

[72]	Also, relevantly, at the bottom of page 6 of the letter, Mr Berndt says

Finally, I have considered imposing a less serious disciplinary action, including:
o	a reprimand or sanction involving a lesser monetary impact (including your proposed reduction in increment level).  I believe this is not a sufficient penalty to resolve and/or deter your inappropriate conduct, specifically the conduct the subject of Allegation 5…

[73]	Having reviewed all of the material available to me, there is no evidence that the decision maker did not consider the submissions of the Appellant regarding the financial impact on them or that the decision maker failed to consider cl 8.5(d)(ix) of the Directive.  To the contrary, it is clear that the decision maker did consider the financial impact on the Appellant and weighed this up against other factors to be considered, particularly the seriousness of the conduct.

[74]	I do not accept the Appellant's submission that the Respondent made the decision to reduce their classification to AO5 because there are no AO6 vacancies. It is clear to me that the decision to reduce the Appellant's classification level was made on the basis of the seriousness of their conduct and not on the basis of available roles at the AO6 level.   It appears to me that the decision maker responds to the Appellant's suggestion that they be transferred at level or reduced to increment AO6.1 with or without managerial or supervisory responsibilities by explaining

o	transfer at level and reduction in increment as an AO6.1 with managerial or supervisory responsibilities, however your conduct provides an ongoing concern for a continuation of unacceptable conduct and the potential adverse impact this would have on the wellbeing of employees and customers.
o	transfer at level and reduction in increment as an AO6.1 without managerial or supervisory responsibilities of any staff, for the same reasons in the abovementioned dot point and recognising that available roles within eHealth Queensland, Customer Service Branch at the AO6 level all require managerial responsibility. 
…

[75]	The Appellant's ground of appeal that the financial impact on their was not considered cannot succeed.

[76]	A reduction of classification was a disciplinary penalty available to the decision maker and I do not find that it was unreasonable for that penalty to be determined on the basis of the substantiated allegations regarding the Appellant's conduct. 

Reliance upon material not previously presented

[77]	The Appellant contends that it was unfair for the decision maker to consider the following

-	for completeness, your conduct subject to Allegations one and Allegation four is similar to the concerns raised by Ms Lisa Davies-Jones, Chief Executive, North West Hospital and Health Service (NWHHS) on 28 March 2019. To summarise, their concerns were:
o	your approach with staff across the HHS, and
o	a lack of improvement in your communication style.
Further, Mr Peter Scott, then Chief Financial Officer, NWHHS on 19 June 2019 emailed raised concerns about an interaction between you and Ms Curtly Smith, Manager Executive Support Services, NWHHS.  While I determined both parties could have been more appropriate in the way the matter was approached, it is also a concern to me that you do not appear to have moderated the way in which you speak to our customers and your colleagues. I note that additional training and support was provided to you, in particular:
o	mentoring from Ms Emma Anderson, Manager, Service Transitions and Operations, Service Management and Improvement over a 12-month period, and
o	increased coaching and supporting by Ms Julie Hume, Manager, Northern DPT, Customer Services Branch, consisting of on-site support approximately once every month, with one-one-one meetings held via video conference every week. 
The fact that you have not moderated your conduct, despite these additional supports is a concern to me and indicates either a lack of awareness and/or reckless disregard of the standard of conduct expected of a public service manager. 
-	I have also carefully considered your submission that you have undertaken relevant online training and development provided by Queensland Health, the Queensland Human Rights Commission and the Fair Work Ombudsman. While I am pleased you are taking a positive step in this regard, the nature and seriousness of your conduct in the workplace has caused me to lose trust and confidence in your ability to conduct yourself in an appropriate manner as a public service manager.  I note that the management action taken against you for similar conduct in 2019 and the training you completed since this time was not effective to address your conduct in the workplace, namely:
o	Code of Conduct (31/10/2019; 6/10/2020)
o	Code of Conduct for Managers (6/10/2020; for completeness and as provided in your submission, 13/09/2021)
o	Conflict and Challenging Behaviour Awareness (13/11/2019),
o	Bullying, Sexual Harassment and Discrimination (26/07/2019) and
o	Ethics, Integrity and Accountability (04/01/2019)
-	I am satisfied that you are aware or ought to have been aware of the standard of conduct expected of departmental employees, and in particular that of a public service manager, and you have provided no reasonable defence for ignorance of your obligations.
-	I am satisfied that you were aware or ought to have been aware of your requirements to understand and comply with the Department of Health's Workplace Harassment (E13), Flexible working arrangements (C5) and Anti-discrimination, human rights and vilification (E2) Human Resources Policies and you have provided no reasonable defence for ignorance of your obligations. 

[78]	It is clear that the disciplinary decision has been made on the basis of the five substantiated allegations.  There is no evidence in the reasoning set out at pages two to four of the decision letter that the conduct of 2019 was considered by the decision maker when establishing the seriousness of the conduct.   

[79]	Clause 8.5(d)(ii) of the Directive involved the decision maker considering the Appellant's classification level and/or expected level of awareness about their performance or conduct obligations.  The decision letter makes it clear that the decision maker comprehensively reviewed this factor.  the Appellant was a public service manager who had had no shortage of training and refreshers in the key documents and policies that formed the basis of their obligations as a manager at AO6 level.  

[80]	Clause 8.5(d)(iv) of the Directive required consideration of the Appellant's overall work record including previous management interventions and/or disciplinary proceedings.  I accept that the conduct of 2019 referred to at [77] above was not dealt with by way of a disciplinary proceeding.  However, it is clear to me that it led to what could be described as 'management interventions'.  That conduct may not have been put to the Appellant in the form of allegations, but it is clear to me that the conduct led to some 'management intervention' and that management intervention was of a nature that would have served to provide support to the Appellant to understand what was required of their in communicating with colleagues and clients. 

[81]	Together Queensland provided me with correspondence received by them when they asked for documentation to support the information in the decision regarding management action in response to the 2019 conduct.   The email reply from Garrick Peisley said:

Thank you for your email, please find attached concerns received from the HHS (Peter Scott and Lisa Davis-Jones) regarding the Appellant.  The material was not issued to the Appellant as the matters the Appellant was made aware of the concerns raised and the matters were addressed.  the Appellant was undertaking mentoring and additional support from their Manager (Ms Hume) at the time.  Ms Hume, eHealth Management felt that the Appellant was getting the performance feedback and support required and therefore no Material documents were issued. 

[82]	Approaching concerns through management action rather than through a disciplinary process is not an unusual way to deal with matters in the public service and falls within the scope of the discipline guideline/policy. I accept that the Appellant received the mentoring and additional support, even if this did not occur in the context of having matters formally presented to their or raised with her. Given the support was provided to the Appellant by way of management action, it was fair for the decision maker to consider this in the context of cl 8.5 of the Directive.  Particularly in the context of cl 8.5(d)(ii), (iv) and (viii). 

[83]	While the management action in relation to the 2019 matters is included in the comprehensive seven page decision letter provided to the Appellant, the purpose of its inclusion is 'for completeness'.  In my view the substantiated allegations were, on their own, reason enough for the decision maker to determine that the Appellant's disciplinary penalty should include a reduction in classification and the removal of any responsibility for the management of staff. 

[84]	I note that the outcome will have a financial impact on the Appellant, however I also note that the decision maker has informed the Appellant that career advancement opportunities will remain open to them in the future.  

[85]	When considering all of the material available to me, including the material relied upon in arriving at the disciplinary finding, the material exchanged regarding the disciplinary penalty and the submissions made in this appeal, I find that the decision regarding the disciplinary penalty was fair and reasonable.  

[86]	The decision appealed against is confirmed.