Dorante-Day v Marsden [2019] QSC 125

[1] The applicant is employed by the Public Safety Business Agency (PSBA) under the Public Service Act 2008 (Qld) (PSA) holding the position of Technical Communications Team Leader, Technical Officer, Level 4 and at the relevant time was acting in higher duties as a Technical Officer, Level 5. The respondent is employed by the PSBA in the position of General Manager, Human Resources and holds a delegation from the Chief Operating Officer with respect to the employment of staff.

[2] A complaint had been made by a manager employed by the PSBA who had been auditing the applicant's leave and documents supporting the leave after he had a telephone conversation with the applicant on 11 May 2018 and considered he had been threatened by the applicant. The written complaint was dated 17 May 2018. The acting director of the department within which both the complainant and the applicant are based passed the complaint to Ms Patane who is the principal advisor in complaints management within Human Resources of the PSBA who forwarded the complaint to the respondent on 31 May 2018.

[3] In his affidavit filed on 6 December 2018, the respondent deposed to the fact that on the basis of the allegations in the complaint, he formed the belief the applicant may be liable to discipline under one of the grounds of discipline set out in s 187 of the PSA. The respondent asked Ms Patane to consult with Mr Cameron Allen (the applicant's director) as to whether there were any alternative duties that the applicant could be assigned to. The respondent was advised that there were no alternative duties available. The respondent deposed as follows in paragraph 12 of his affidavit:

"Some of the allegations were that Mr Dorante-Day had engaged in threatening behaviours. One aspect of the complaint was that the complainant felt threatened and bullied. The allegations, on the face of the complaint, were serious and I formed the view that they needed to be investigated."

[4] Pending a full investigation of the complaint, the respondent decided to suspend the applicant from duty on normal remuneration effective from 1 June 2018 and the applicant was given notice of that decision by letter dated 1 June 2018 that included the following:

"I have received a complaint dated 17 May 2018 concerning allegations of inappropriate workplace behaviour in that:

• You have demonstrated threatening behaviour towards your supervisor by indicating that he was under scrutiny by authorities and that he needed to be careful;
• You have raised your voice on several occasions against your supervisor where other employees were able to hear;
• You have shown complete disregard and disrespect to your supervisor and other employees.

Section 189(1) of the Public Service Act 2008 (PSA) provides that an employee may be suspended from duty if the chief executive reasonably believes that the employee is liable to discipline. In accordance with the Public Safety Business Agency HR delegations of 5 September 2017 I have been delegated the functions of the chief executive for this matter.

On preliminary consideration of the material before me, I reasonably believe you are liable to discipline.

Until this matter is resolved, I have decided that you should not remain in your current workplace, as I hold concerns about the welfare of other employees. I have considered all possible alternative duties to which you could be assigned in the meantime, however, in considering the seriousness of the allegations and comments in relation to escalating of these matters, I have formed the view that no alternative duties can be assigned to you at this time.

Given the nature of the allegations, I have decided to suspend you from duty on normal remuneration, effective from today."

[5] By the amended application for a statutory order of review filed on 6 July 2018, the applicant applies to review the respondent's decision to suspend him. The relief that the applicant seeks, as set out in his outline of argument filed on 14 March 2019, is that the suspension decision be quashed. The applicant also seeks that "evidence of criminal activity exposed during the course of the review, that would be covered by the Queensland Criminal Code, be handed over to the Queensland Police Service ... for further investigation". That is not the role of the Court on an application for a statutory order of review.

[6] The respondent has extended the suspension on normal remuneration, so that at the hearing of this application, that remained the position.

[7] Section 187 of the PSA empowers the chief executive to discipline a public service employee if the chief executive is reasonably satisfied that one of the disciplinary grounds provided for in s 187(1) of the PSA exists. In disciplining an employee, the chief executive may take the action, or order the action be taken, (which is defined as disciplinary action) that the chief executive considers reasonable in the circumstances. Examples are given in s 188(1) of different types of disciplinary action ranging from termination of employment through to a reduction of remuneration level or a reprimand.

[8] Section 189 of the PSA deals with suspension of the employee liable to discipline:

"(1) The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.

(2) However, before suspending the employee, the chief executive must consider all alternative duties that may be available for the employee to perform.

(3) The chief executive may cancel the suspension at any time."

[9] The expression "disciplinary law" is defined in the PSA to mean the PSA, a disciplinary provision of an industrial instrument, or a law prescribed under a regulation.

[10] Section 190 of the PSA regulates the procedure for disciplinary action:

"(1) In disciplining a public service employee or former public service employee or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

(2) However, natural justice is not required if the suspension is on normal remuneration."

[11] The complaint was set out in a written form, as a result of a telephone call the complainant had with the applicant on 11 May 2018. It is apparent from the terms of the complaint that it covers other dealings between the parties, in addition to the telephone call on 11 May 2018. The complaint included the following:

"He then started by saying that Ross had told him that I was looking into his leave balances etc and that I may give him a call about his leave.

He went on to say that he was being victimised, and everything he did was by the book and as he was entitled to.

He also said that he had submitted a formal complaint against me, which he wrote when he was asked by HR to refrain from using the departments name in the new idea some 4 weeks ago. The complaint was about fraudulent activity and miss representation about a Microwave document that he had written having names removed from his submitted work.

He said he had sent this to Peter Griffin, and told me he had been made aware that Cameron Allen was managing this. He also said he was under great stress as nothing had happened or been addressed in relation to his letter and how would I feel if I had to turn up to work every day knowing nothing was or had happened about his complaint. I told him I had been informed he had submitted a letter but I had no idea about what was in it or what was it about. I had not been told.

He then said - threatened - that I was under scrutiny by authorities that were overlooking the Royal issue and everything I was doing was being watched and documented and that I needed to be careful on what I did.

He also said to the effect, that if I wanted to get into a driverless car heading for a cliff, then I would go over the cliff. Or words to that effect."

[12] The complaint then records that the complaint told the applicant that he was checking his leave balance, because as a manager he needed to ensure that the department was ensuring his leave was processed correctly, as in leave without pay etc.

[13] The complainant recorded in the complaint that he told the applicant that he did not have any knowledge of the complaint submitted by the applicant and "that my intentions were totally around working out with him on what or how, was the best way to support him in doing his work and how we could help him in meeting his personal issues". The complainant records the applicant's response:

"He said that because Cameron had not done anything about his complaint, he was under a lot of stress in the workplace and this was causing him to be taking his stress home and this was impacting him and his family."

[14] The complainant then summarises his characterisation of the conversation he had with the applicant in these terms:

That I have acted in a fraudulent manner and have miss represented work carried out by an employee and been reported to Peter Griffin.

That I am in a driverless car heading for a cliff and its going over the cliff.

That I am under scrutiny by authorities and that I have been reported.

That I have victimised an employee and that I need to stop victimising him."

[15] The complaint then set out the complainant's response to assertions made by the applicant in the telephone conversation. The complainant noted that he had not taken any action, as he was not aware of the content of the applicant's complaint and that he had started a process to address the applicant's absenteeism, including carrying out an audit of his leave and identifying several discrepancies between his recorded absenteeism and submitted documentation, and that the applicant had been asked on several occasions to rectify those identified issues and had not done so to date.

[16] The complainant asks for advice on options in relation to being threatened by an employee. The complaint recorded:

"I feel threatened by this employee who has no regard for myself or the impact of his actions against me, including having this employee shout at me in a common workplace and order me into my office to discuss an issue he didn't like. Showing no respect and belittling me in public."

[17] The complaint then concludes with the complainant's observations on the applicant's complaint of fraud and misrepresentation the applicant had made against the complainant in relation to the removal of the applicant's name from "a Microwave document":

"My understanding is that if you work for the QLD Govt, then anything you produce is the property of the QLD Govt and not the individual.

This complaint has no truth to it as I am not aware of this issue or his submissions content let alone the statements made in his phone call, this is the first I have heard about them in detail.

I believe I am being subjected to bullying, disrespected and verbally and physically threatened in the workplace by an employee, no employee should have to put up with these types of actions in the workplace."

[18] In order to understand some of the references in the complaint, the applicant's material filed in support of the application provides detail of other action taken by and against the applicant which explains the references.

[19] The applicant had made a complaint in January 2018 to Ms Patane about concerns he had with his name and consultation history being taken off a document entitled "Technical Design - PSBA Cairns/Townsville Microwave". He then lodged a complaint about the same subject with Queensland Crime and Corruption Commission (CCC) on 25 January 2018 in which he made allegations against the complainant and another employee for taking credit for the design which he alleged amounted to fraud and plagiarism. (The CCC took no action in relation to the applicant's complaint for the reasons set out in the letter from the CCC to the applicant dated 12 February 2018, but the applicant was not aware of that outcome until he made inquiries of the CCC in April 2018, as he did not receive the letter on or around the date it was dated.) It seems that the applicant pursued his complaint with the PSBA in respect of the failure of the complainant and others to attribute his authorship of the Microwave document. Although the applicant asserted in his amended application that the complaint to the PSBA was made in February 2018, he exhibits material that suggests it was pursued in April 2018.

[20] The applicant was interviewed by the New Idea for an article that dealt with his quest to establish his parentage. In the course of the interview, the applicant expressed the view that police and "all the emergency services up in Queensland" were behind him in his quest. Ms Patane generated a Conduct and Performance Excellence (CaPE) category 1 complaint in relation to this matter. The applicant's supervisor, Mr Humphreys, was requested by Ms Patane to meet with the applicant and ask him to desist from mentioning his workplace, the Queensland Police Service and emergency services in any future dealings with the media. Mr Humphreys did that on 27 March 2018 and that appeared to resolve the complaint generated against the applicant. The applicant had a number of issues that he recorded in his email of 27 March 2018 addressed, amongst others, to Mr Humphreys, Mr Allen and Ms Patane that were mostly the subject of a meeting between Mr Humphreys and the applicant on 3 April 2018.

[22] Although there are four numbered grounds of review, within the numbered grounds there are more than four grounds of review. The main grounds for review can be summarised as follows:

• (a) is s 190(2) of the PSA unconstitutional by being in breach of the applicant's rights under articles 14, 16 and 17 of the International Covenant on Civil and Political Rights (ICCPR)?
• (b) was the respondent's evaluation of the complaint, assessment of the appropriate action to be taken and consideration of alternative remedies in breach of the rules of natural justice;
• (c) was due process followed?
• (d) was the respondent's decision influenced by fraud?
• (e) was there insufficient evidence to warrant the decision?
• (f) was the respondent's decision contrary to law?
• (g) did the subsequent investigation led by Ms Patane result in a breach of the rules of natural justice or is otherwise tainted?
• (h) was the letter of 1 June 2018 adequate notice of the suspension decision?
• (i) did the respondent take into account irrelevant considerations in exercising the power of suspension?

[23] On 24 September 2018 the applicant filed a notice of a constitutional matter under s 78B of the Judiciary Act 1903 (Cth) in respect of his contention that s 190(2) of the PSA is unconstitutional in removing the principles of natural justice from the decision made under s 189(1) of the PSA. No Attorney-General sought to intervene in this proceeding.

[24] The ratification by the Commonwealth of Australia of the ICCPR on 13 November 1980 does not give the ICCPR legislative status in this State. The Parliament of Queensland may be informed by the ICCPR in its approach to the exercise of legislative power, but the ICCPR is not a part of the substantive law of this State. It is a matter for the State Legislature whether it wishes to exclude the principles of natural justice in any specified administrative process of decision making provided for in legislation.

[25] In any case, none of articles 14, 16 or 17 of the ICCPR is relevant to this proceeding.

[26] The applicant also relies on s 38(a) of the Judiciary Act 1903 (Cth) to assert that, as his application arises "directly under any treaty", the High Court of Australia has the exclusive jurisdiction to hear his matter. The applicant's application is to review the respondent's decision under s 189(1) of the PSA and the applicant is incorrect in his characterisation of the nature of his application as arising under a treaty. Section 38(a) of the is not invoked by the applicant's assertion that the ICCPR makes s 190(2) of the PSA unconstitutional.

Did the rules of natural justice apply to the respondent's decision?

[27] The applicant refers to the observations made by Bond J in Wirth v Mackay Hospital and Health Service [2016] QSC 39 at [22]- [23]:

"[22] In my view, where s 190 obliges compliance with the principles of natural justice, the phrase 'in disciplining' must be taken to refer not merely to the s 188 process of deciding what particular disciplinary action to impose, but, necessarily, to the antecedent decision by a chief executive whether he or she is reasonably satisfied that particular grounds for discipline exist. The phrase 'in disciplining' covers both types of decision. It seems to me that nothing else makes sense. Why would the legislature contemplate that natural justice must be accorded only to what is - in effect - the sentencing decision and not to the antecedent question of guilt or innocence?

[23] Even if, contrary to my view, I had concluded the language used in s 190 was inapposite expressly to encompass the s 187 decision, I would not have inferred from the legislature's failure to make a positive statement about natural justice in relation to such a decision that its intention was that the chief executive was not obliged to comply with the principles of natural justice when making the s 187 decision."

[28] On the basis of the analysis in Wirth, the applicant asserts that, when the respondent was considering whether he reasonably believed the applicant was liable to discipline under a disciplinary law, the respondent was bound to observe the principles of natural justice, despite s 190(2) of the PSA. In contrast, it is submitted on behalf of the respondent that the respondent was proceeding under s 189(1) of the PSA and not making a disciplinary decision under s 187 or s 188 of the PSA to which the principles of natural justice apply.

[29] Wirth was concerned with an application for statutory order of review in respect of a finding made pursuant to s 187(1)(b) of the PSA by the chief executive of the hospital that Dr Wirth was guilty of misconduct and the subsequent decision made pursuant to s 188(1) of the PSA by the same decision maker to terminate Dr Wirth's employment.

[30] In Wirth solicitors were engaged by the hospital to investigate a serious problem in its emergency department concerning communications and the working relationship between staff and were specifically directed to complaints involving Dr Wirth and other staff members. After taking statements from employees, including Dr Wirth, the solicitors presented a report that made findings adverse to Dr Wirth and recommended the hospital should commence a formal disciplinary process against him. The chief executive of the hospital reviewed the report and issued the show cause notice to Dr Wirth that was recommended by the report. The hospital refused to supply the report to Dr Wirth. Dr Wirth provided full written submissions in response to the show cause notice. The chief executive found ten allegations against Dr Wirth to be substantiated and, in a number of instances, found the complainant's version of events to be more credible than Dr Wirth's version. The chief executive made a finding that Dr Wirth had contravened s 187(1)(b) of the PSA. The chief executive ultimately made the decision to terminate Dr Wirth's employment.

[31] Bond J found at [100]-[101] that both the disciplinary finding decision and the disciplinary action decision were not made in compliance with principles of natural justice, as Dr Wirth was not provided with the solicitors' report or the evidence it contained and he was denied the opportunity of making any responsive submissions as to credibility of the witnesses whose evidence was adverse to him or to critique the findings made by the solicitors in the report on which the chief executive relied.

[34] One of the applicant's complaints is that the respondent proceeded under s 189(1) of the PSA, when the respondent should have first considered proceeding under s 137(1) of the PSA. The applicant contends that suspension under s 137 would be more appropriate for him, as it would not have assigned to the applicant the "guilt' which follows from suspension on the basis that he is liable to discipline. Section 137 falls within part 4, chapter 5 of the PSA which is concerned with termination, suspension and related matters concerning a public servant's employment. Section 137 applies only to suspension that is independent of the disciplinary process. In fact, s 137(10) expressly provides that s 137 "does not limit or otherwise affect section 189". The condition precedent for s 189 to apply is the formation of a reasonable belief on behalf of the decision-maker that the relevant employee "is liable to discipline under a disciplinary law". If that condition exists, then the decision-maker may consider a suspension under s 189 of the PSA. It is not the case where the condition precedent for exercising the power under s 189 exists that the decision-maker is bound to consider acting under s 137, rather than s 189.

[35] The respondent acted relatively swiftly in making the suspension decision after receiving the complaint on 31 May 2018. That timing does not show that due process was not followed.

[36] The applicant submits the respondent has failed to comply with the Commission Chief Executive Guideline 01/17: Discipline (the Guideline) that applies to disciplinary action for public service employees pursuant to chapter 6 of the PSA. At the outset, it should be noted that the Guideline is expressed in terms of being an adjunct to the PSA and that its purpose is only to provide guidance and it does not bind or substitute the requirement for decision makers to exercise their managerial discretion properly in line with the PSA, in response to the unique facts of each case.

[37] The applicant relies on paragraph 11 of the Guideline which sets out the steps that should be taken by the decision-maker in response to a complaint. The applicant complains that the respondent did not comply with paragraph 11.5 that states:

"Generally, a face-to-face meeting with the employee who is subject to the allegations should be arranged as early as possible to discuss the allegation(s) and provide them copies of relevant material (for example, a report, a letter detailing the complaint/allegations or a show cause letter) and explain their meaning and purpose."

[38] The applicant also relies on the respondent's failure to comply with the requirement under paragraph 11.8(a) of the Guideline to keep a record of the alternative duties considered and the reasons they were deemed unworkable. In that regard, the applicant also relies on the respondent's failure to comply with the proforma suspension letter set out in schedule 5 to the Guideline which provides for the alternative duties that were considered to be listed and for reasons to be set out as to why the decision-maker formed the view that no alternative duties were possible at that time.

[39] The obligation on the respondent to consider all alternative duties that may have been available for the applicant to perform was mandatory under s 189(2) of the PSA.

[40] Although the respondent did not list the alternative duties that he considered, it is apparent from the reasons the respondent gave for concluding that there were no alternative duties to which the applicant could be assigned that it was the seriousness of the allegations against the applicant and comments that the applicant had made that were construed as "escalating of these matters" and the respondent's concern about the welfare of other employees which resulted in the conclusion there were no alternative duties. Those circumstances explain why the respondent did not follow the proforma letter exactly. The fact that no document was generated with respect to the respondent's consultation regarding alternative duties does not mean that the respondent's statement in paragraph 11 of his affidavit that Mr Allen advised there were no alternative duties available for the applicant should not be accepted.

[41] It is not relevant to have regard to some of the material that has been gathered by Ashdale in investigating the complaint and is now relied on by the applicant to complain about the process of the decision-making to suspend him, as that material was not before the respondent and does not discredit the genuineness of the respondent's decision making at the time he made the suspension decision.

[42] The respondent was not bound to comply in all respects with the Guideline. The respondent was bound to comply with s 189 of the PSA. I am not satisfied that the applicant has shown that there was a failure to comply with the procedures required by law to be observed in relation to making the suspension decision that is amenable to review.

Was the respondent's decision influenced by fraud?

[43] The applicant does not attribute bad faith to the respondent personally, but relies on attributing bad faith to others and it is thereby asserted that the respondent's decision was affected by the fraud of the others. The applicant describes the first instance of fraud as "the fraudulent manner in which the Planning and Design Unit (PDU) took ownership and authorship of the Communications Infrastructure Development Centre's (CIDC) Microwave Design Document, which the applicant spent nine months researching, investigating, and creating, at the order of [the complainant] without any acknowledgement." The second instance of fraud asserted by the applicant is the fabrication of the complaint and fake "evidence" created by "the biased collusion of Margaret Patane, [the complainant] and Cameron Allen that was placed before the decision maker".

[44] In relation to the first allegation of fraud, the respondent in paragraph 19 of his affidavit deposes to the fact that at the time of making the decision on 1 June 2018 to suspend the applicant on normal remuneration, he was not aware that the applicant had made a complaint to the CCC. The respondent's decision therefore could not have been affected by the fraud alleged by the applicant that is the subject of the complaint to the CCC.

[45] In relation to the second allegation of fraud, the applicant relies on a discrepancy that he perceives between the complainant stating in his complaint that he was "physically threatened" and what is recorded in a subsequent investigation report undertaken by Ashdale for the PSBA in respect of the complainant's complaint that recorded the following answer in response to a question to the effect of did the complainant feel the applicant was threatening him:

"Yes I did, totally. Threatening my lifestyle, my job, me. And in all the words he said he was threatening me, not physically, like I'm not scared of him physically but that he was having me investigated. For what I don't know..."

[46] That discrepancy is not sufficient to support the serious allegation that the applicant makes against the complainant, Ms Patane and Mr Allen that they colluded to create evidence. In any case, the respondent did not treat the allegations made by the complainant against the applicant as involving physical threats, but as threats that the complainant was under scrutiny by authorities, raising his voice to the complainant when other employees could hear, and as "complete disregard and disrespect" to the complainant and other employees.

[47] The applicant does not show that the respondent's suspension decision was induced or affected by the fraud of others.

Was there insufficient evidence to warrant the decision?

[48] The applicant seeks to rely on s 20(2)(h) of the JRA in asserting within ground 2 of the grounds for review that there was insufficient evidence to warrant the action. As shown by the above summary of the complainant's complaint, it was lengthy, detailed and showed the serious impact the applicant's behaviour was having on the complainant. The complaint (even though untested) enabled the respondent to form the reasonable belief the applicant was liable to discipline under s 187(1) of the PSA and to justify making the suspension decision.

[49] The applicant asserts that the respondent did not identify in the decision the disciplinary law under which the applicant was liable to discipline. The respondent expressly identified in the decision letter that the power of suspension that was applicable was s 189(1) of the PSA. The expression "disciplinary law" that is used in s 189(1) is defined in the PSA. Although the respondent did not identify in the letter of 1 June 2018 that he considered the applicant was liable to discipline under s 187(1) of the PSA (as he stated in paragraph 9 of his affidavit), the respondent identified the serious allegations of inappropriate workplace behaviour that triggered the exercise of the suspension power. It cannot be seriously suggested that conduct of that type was not amenable to discipline under at least s 187 of the PSA. In those circumstances and provided the respondent had formed the reasonable belief required to act under s 189(1), the respondent was not bound to identify for the applicant at the time of giving notice of the suspension decision the particular disciplinary law referred to in s 189(1) of the PSA that he was relying on for the purpose of exercising the suspension power.

[50] There is nothing otherwise raised in the applicant's material that provides any arguable basis for this general ground that has not been covered otherwise by the applicant's specific complaints.

[51] The suspension decision preceded Ms Patane's investigation. As it is the suspension decision that is the subject of this review application, it is neither necessary nor relevant to address the applicant's assertions in respect of the investigation by Ms Patane.

Was the letter of 1 June 2018 adequate notice of the suspension decision?

[52] The respondent's letter of 1 June 2018 conveys the suspension decision in unequivocal terms and provides the reasons for it. It was adequate notice.

Did the respondent take into account irrelevant considerations?

[53] The applicant asserts in his application that the decision of the respondent is "overt retaliatory action" that is based around the public issue of the question of the applicant's paternity and is not based on his work performance.

[54] The respondent in paragraphs 22 and 23 of his affidavit deposed to being aware at the time he made the decision on 1 June 2018 of the New Idea article that appeared in or around late March 2018 concerning the applicant's claim regarding his paternity and on 27 March 2018 being made aware of email communications between the applicant, his project manager and Ms Patane concerning issues arising from that publication. The respondent then set out in paragraph 24 of his affidavit that he understood that:

"... a low level Public Service Commission Conduct and Performance Excellence (CaPE) issue had been raised with Mr Dorante-Day about the manner in which aspects of his employment and his employer's attitude to his claim regarding his paternity had been addressed in the story."

[55] In paragraph 26 of his affidavit, the respondent stated that the applicant's claim in regard to his paternity was not a matter which he took into account when determining to suspend him on normal remuneration.

[56] There is nothing that is raised in the material relied upon by the applicant that controverts the respondent's statement that he did not take into account the applicant's paternity claim when making the suspension decision. In light of the respondent's statement, there is no basis to draw an inference that because the respondent knew about the applicant's paternity claim, he must have taken it into account.

[57] As none of the grounds for review relied upon by the applicant have been established, it follows that the amended application for a statutory order of review must be dismissed.

[58] I will give the parties an opportunity to consider these reasons before they are required to file and serve short written submissions on the question of costs. I encourage the parties to agree on a timetable for the exchange of written submissions and, if it is appropriate, then I will deal with the question of costs on the papers, unless either party requests a hearing. In order to facilitate that process, I will adjourn the question of costs to a date to be fixed.