Fisher v State of Queensland

Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 158

Colebourne v Queensland (Queensland Police Service) (No 2) [2022] QIRC 16

Ehrlich v Queensland [2024] QIRC 209

Goodall v State of Queensland [2018] QSC 319

Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480

Haw v State of Queensland (Queensland Fire Department) [2026] QIRC 096

H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd (1983) 48 ALR 667; [1983] FCA 166

Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162

King v Workers' Compensation Regulator [2019] QIRC 134

Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15

O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534

Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6

St Clair v Timtalla Pty Ltd & Anor [2010] QSC 296

[1] Ms Tarita Ann Fisher, the Appellant, is employed as a Health Service Manager by the Respondent at the Cherbourg Hospital, which is part of the Darling Downs Hospital and Health Service ('the Service'). Ms Fisher's role involves managing and coordinating health services for a specific remote indigenous community of which she is also a member. The decision which Ms Fisher appeals in these proceedings ('the Decision') was delivered by Ms Kylie Pippos, Executive Director People and Culture for the Service.

[2] In broad terms, Ms Pippos concluded that Ms Fisher engaged in conduct on two separate occasions that exposed Ms Fisher to being disciplined including, potentially, dismissal. The allegations concerned disrespectful and aggressive behaviour including inappropriate comments and shouting towards other members of staff.

[3] These appeals are a review of the relevant decision only. They may critically evaluate how a decision-maker concluded a controversy, but they are not a fresh hearing of all of the evidence in a hearing de novo sense.[1] That does not mean that a review of the relevant evidence is beyond the scope of these appeals. A decision that constitutes findings of fact, where competing versions of the relevant events were weighed in the balance, is capable of review in these appeals.

[4] The test is whether the Decision was 'fair and reasonable'.[2] As to the meaning of the words 'fair and reasonable', neither should be given more weight than the other.[3] The entire phrase, 'fair and reasonable', is the test and that phrase is to be given its ordinary meaning.[4]

[5] Where it can be more obvious to see that a decision is not 'fair and reasonable' is where a material conclusion was not open to being reached.[5] Where all the conclusions reached in the decision were open to be reached, the decision will generally not be overturned on appeal unless there is something else about the decision that is not 'fair and reasonable.'

[6] Where a decision constitutes some sort of injustice, it will be prone to being overturned on appeal, even if the conclusions were open to be reached. An example might be where a process results in a decision that, on the material before the decision-maker, was open to being reached, but the process missed a critical step along the way such as depriving the appellant of the chance to put their version of, or explanation for, events before the decision-maker. A material departure from a binding Ministerial Directive by the decision-maker is another example of where a practical injustice can render the decision prone to appeal. [6] That is not to say that the process must be perfect or free from blemishes. There can still be cases where, despite an imperfect process or use of incorrect phrasing by the decision-maker, the right decision was made and the decision is still deemed fair and reasonable.[7] But it should be apparent in the decision what regard the decision-maker has had to differing versions, the conclusions they reached, and why. A failure to set out what regard was had to the relevant material can render the decision prone to being overturned on appeal.[8]

[7] Mere dissatisfaction with the outcome of a decision is not necessarily grounds for appeal.[9] So in a case like this, disagreeing as to why one account of an incident was preferred over another will not make out a ground of appeal by itself. There needs to be a persuasive reason why the Commission should find that the decision-maker's finding was wrong or not open to them, or even if it was open, not fair and reasonable for some other reason.

What is the issue for determination in this appeal?

[8] The issue in this matter is a single point as to whether the Decision was 'fair and reasonable.' Whether Ms Pippos had adequate regard to the material before her when reaching her conclusions as to whose version of relevant facts ought to be preferred is key. So too, how Ms Pippos reasoned towards reaching her conclusions that both allegations were made out will be key to resolving this appeal.

[9] 'Allegation One' was that on 19 July 2024, in the Cherbourg Community Health building, Ms Fisher behaved in an inappropriate and unprofessional manner towards Ms Billie Mitchell and Ms Gayle Horne in that she was aggressive and confrontational in raising issues about management decisions outside the scope of her responsibility. The particulars of that allegation were:

(a) Upon entry to Cherbourg Community Health, Ms Fisher made comments regarding the 'Cover Your Budoo' poster, specifically, that the term 'budoo' was culturally inappropriate given the word 'budoo' refers to 'penis' and that term should not be used;

(b) In response to Mr Koeppe's explanation of the poster's intent being to raise awareness of sexually transmitted infections due to the syphilis outbreak in the Cherbourg community, Ms Fisher responded stating words to the effect, ''Who authorised this?'' and ''Don't those idiots in Toowoomba consult with locals?'';

(c) After Mr Koeppe confirmed consultation with the Health Service and community had occurred, Ms Fisher directed her attention to Ms Mitchell and demanded to know whether any additional posters were on display. Ms Fisher then left the administrative area and proceeded towards the office of Ms Chrissy Stewart, Cherbourg Community Health manager;

(d) Upon departure, Mr Koeppe, Ms Mitchell and Ms Horne debriefed and determined that they would remove all posters to avoid another encounter with Ms Fisher;

(e) Upon re-entry to the area, now joined by Ms Stewart, Ms Fisher demanded to know from Mr Koeppe, Ms Mitchell and Ms Horne whether there were any further 'Cover Your Budoo' posters. Ms Stewart confirmed there was, located on the desk of Mr Daniel Cobbo, Administration Officer of Cherbourg Community Health;

(f) Ms Fisher subsequently left the administrative area with Ms Stewart;

(g) At approximately 3:00 PM, Ms Fisher returned to the administrative area for a third time and, as she was exiting the building, Mr Koeppe claims she raised her voice towards Ms Horne, who was in the administrative area joined to the waiting area via a window, and demanded to know where all the patients were;

(h) Ms Horne informed Ms Fisher of a scheduled server upgrade as an explanation as to the number of patients in the area;

(i) Ms Fisher responded by proceeding to the waiting area window and pressing her face against the window where Ms Horne was stationed and then in a very loud and aggressive tone, stated words to the effect of 'We should be using pen and paper... People are dying... We should be doing more' towards Ms Horne; and

(j) Ms Fisher left the premises shortly after.

[10] 'Allegation Two' is that on 13 August 2024, in a meeting room of the Women and Children's unit of Cherbourg hospital, Ms Fisher behaved in an inappropriate and unprofessional manner towards Ms Sylvia McGregor (Aboriginal and Torres Strait Islander Senior Health Practitioner) in that Ms Fisher displayed aggressive behaviour and made inappropriate comments towards Ms McGregor. The particulars of Allegation Two were:

(a) Ms McGregor claims that on 13 August 2024, at approximately 1:00 PM, she entered the Women and Children's Unit meeting room and noticed Ms Fisher sitting at the meeting table. Ms McGregor claimed that Ms Fisher instructed Ms McGregor to 'sit down';

(b) Ms McGregor alleged that Ms Fisher said words the effect of ''See all of this, all that's going. It's all of you and Lynette's fault'', which was repeated but in a loud voice;

(c) Ms McGregor sought clarification and alleged that Ms Fisher responded by stating words the effect of ''those black workers coming in to tell us how to work,'' which is claimed to have been said in a raised voice with Ms Fisher raising her hand signalling towards the office diagonally across from the meeting room. Ms McGregor interpreted this as a reference to Ms Marsha Dodd, Aboriginal and Torres Strait Islander Professional Lead, as her office was located in the direction that Ms Fisher was pointing;

(d) Ms McGregor asked Ms Fisher to stop yelling at her but claims that Ms Fisher continued to 'rant and rave' about the movement of the Preventative Diseases Clinic, further stating words the effect of ''Our mob here in community could not get CDG when the clinic was up in the hospital and that was not fair for people like myself with more than two chronic diseases... Why do we have black people coming here telling us black people how to work... The service was running properly before I left'';

(e) Ms McGregor claims that she again asked Ms Fisher to stop yelling at her which Ms Fisher is alleged to have replied ''Oh well, I'm venting''; and

(f) The alleged remarks, in particular the alleged yelling, is said to have been heard by others, each preparing written a statement later taken down as a 'File Note' after being interviewed. They were:

(i) Ms Shannon Cridge, Clinical Nurse, who says she heard it through a closed door while sitting in her office located directly opposite the meeting room whilst she was on the phone. Ms Cridge alleges that she heard words to the effect of ''black bastards... Fuck... Those people coming from Toowoomba, they don't know how to do their job... They think they know'';

(ii) Ms Judith Cooze, Assistant Director of Nursing and Midwifery, was the person on the phone to whom Ms Cridge was speaking. Ms Cooze also gave a statement saying that she could hear a raised voice through the phone;

(iii) Ms Marsha Dodd stated that she also heard the incident through the closed door of her office, which was located diagonally opposite the meeting room. Ms Dodd said that she recalls hearing Ms Fisher's voice state words to the effect of ''This is all yours and Lynette's fault... These changes, they're all yours and Lynette's fault... I have written proof... Fucking black bastards... Those black workers from Toowoomba coming in telling us how to do our job... Why do we have black people coming here telling us how to work... The preventative clinic should never have been created... Everything's gone to shit once I left'';

(iv) Mr Norton Stott (Director of Nursing at Cherbourg Hospital) stated that at about 1:30 PM on 13 August 2024, Ms Fisher entered his office and disclosed in a loud voice that she had just come from the Women and Children's Unit of Cherbourg Hospital and that she had spoken to Ms McGregor in a loud manner to ensure that she was heard by a ''Toowoomba person, as that way it will get back to the right people.'' Mr Stott alleged that he advised Ms Fisher that he was of the view that her actions did not align with the Code of Conduct, to which he says Ms Fisher responded that she did not care about the Code of Conduct and that Mr Stott worked for the Cherbourg community.

Why the Decision is not a 'disciplinary decision'

[11] As a preliminary matter, the description by Ms Fisher of the Decision in this case as a 'disciplinary decision' is incorrect. I accept the Service's submissions that the Decision is not a 'disciplinary decision' as that term is defined in s 129 of the Public Service Act 2022 (Qld) ('PS Act'). That is because this decision is not a decision to discipline Ms Fisher. Rather, it is a decision finding that the allegations have been substantiated on the balance of probabilities. That therefore leaves Ms Fisher exposed to being disciplined. However, the Decision does not actually decide on what discipline will be imposed.

[12] In any case, nothing turns on this distinction because it is not material to the outcome of this matter. Indeed, it appears simply to be an understandably innocent but mistaken reference by Ms Fisher probably due to the fact that a disciplinary process is ongoing and that this decision is part of it.

[13] In her appeal Form 89 'Notice of Appeal', Ms Fisher raises several grounds of appeal:

(a) Ms Pippos partly based her conclusions regarding Allegation One on inferring that two witnesses, who did not give statements, were fearful of ramifications from Ms Fisher. Ms Fisher contends this was not fair and reasonable because, in the absence of a statement from each, there was no reasonable basis upon which to draw that inference;

(b) Ms Pippos did not adequately consider Ms Fisher's response to the allegations;

(c) Ms Pippos relied on a conclusion that Ms Fisher did not have a satisfactory reason for being on site;

(d) The findings are not supported by objective evidence; and

(e) Ms Pippos did not take into account Ms Fisher's cultural objections in relation to the posters.

[14] In her submissions, Ms Fisher developed the last abovementioned appeal ground concerning Ms Pippos' consideration of the cultural aspects behind Ms Fisher's complaints about the posters into a submission about institutional racism. Ms Fisher argues that the Decision, and indeed the disciplinary process leading to it, is evidence of institutional racism and constitutes punishment of Ms Fisher for exercising her responsibilities as a staff member and her rights as a community member to address relevant matters.

[15] Part of this argument is the submission that Ms Fisher has been mischaracterised by virtue of an institutionalised 'angry black woman' trope, whereby black women are excluded and cast as hostile, aggressive, overbearing, ill-tempered and bitter when discharging leadership roles. Ms Fisher argues that a white man or woman acting similarly would instead be described as authoritative, decisive, caring or passionate.

[16] By this argument Ms Fisher seeks to justify her behaviour by virtue of the issue she was raising on the relevant days. Ms Fisher bases this upon her sense of obligation to passionately advocate on behalf of those in her community and those who she felt might be adversely impacted by the matters that she raised in each relevant exchange. Ms Fisher's argument is essentially that because the process giving rise to the Decision, and the Decision itself, were in response to Ms Fisher advocating on behalf of Indigenous person's rights and cultural sensitivities, the process is a product of institutional racism.

[17] Other arguments Ms Fisher advanced in her appeal submissions were that the Decision:

(a) failed to consider Ms Fisher's cultural safety, human rights and cultural rights;

(b) was inconsistent with, and a contradictory application of, the Code of Conduct; and

(c) was not timely, fair, appropriate and proportionate to the seriousness of the work performance matter.

[18] Ms Fisher argues that the Decision is not fair and reasonable where Ms Pippos drew an inference that two witnesses who, according to those who did give statements, had capacity to observe the incidents, did not give a statement out of a fear of retribution from Ms Fisher. The argument is that this inference could not have been drawn in the absence of a statement from each witness as to why they chose not to give a statement.

[19] Ms Pippos did indeed state that the reason why the two witnesses who declined to give a statement was fear. The Service submits that early in the investigation process, those two witnesses did express the reason they declined to give a statement was because they were fearful of doing so. Ms Pippos said in the Decision, ''I understand they indicated they were fearful of providing information regarding your behaviour.''

[20] I accept the Service's submission on this point. That is because Ms Pippos said clearly in the Decision that she understood that these two witnesses had indicated that the reason was fear. That is clearly at odds with the submission that Ms Pippos inferred the reason or assumed it for herself simply by virtue of the fact that no statement came from those two witnesses. I find therefore that Ms Pippos did not infer or assume that the reason why the two relevant witnesses declined to give statements was a fear of doing so. Rather, Ms Pippos accepted that fact based on what those witnesses had actually told investigators.

[21] Ms Pippos reasoned that this fact suggested to her that Ms Fisher's version of events did not fully reflect what occurred. Ms Pippos stated that the basis for that reasoning was that if the incident were as uneventful as Ms Fisher submitted, then there would be no reason for those two employees to be fearful. Ms Pippos went on to rely on the fact that those two witnesses were fearful of giving information as a basis for finding that they also likely found Ms Fisher's behaviour to be inappropriate and aggressive.

[22] Ms Fisher takes issue with Ms Pippos' reasoning on this point arguing that it is more conjecture or guesswork than it is based on evidence. That is because Ms Pippos has assumed, rather and inferred from evidence, why each witness expressed fear as a reason for declining to comment. That assumption by Ms Pippos is that each witness saw things consistent with descriptions by other witnesses but was denied in some aspects by Ms Fisher. I accept Ms Fisher's concerns here. This level of conjecture and assumption by Ms Pippos would never stand up in a court or tribunal where the rules of evidence were either mandatory or followed. Ms Pippos was not bound by the rules of evidence and neither is the Commission, but this assumption was not sound in my opinion.

[23] That said, Ms Pippos' assumption made no difference as it was entirely unnecessary given the weight of the evidence from those who actually did give a statement and were interviewed after doing so. There was also Ms Fisher's admissions, non-denials, albeit with some denials and an apology in her show cause response. Had Ms Pippos' conclusions been based entirely on the fact that two witnesses declined to comment for reasons of fear, then Ms Fisher would have a point here. However, that couldn't be further from the case in my opinion. The evidence before Ms Pippos was strong in my opinion. She cited relevant parts of it upon which she based her conclusions as to fact as well as relevant admissions by Ms Fisher. A conclusion that Ms Fisher was loud and aggressive and said the things alleged on each occasion was open to Ms Pippos based on that evidence. I do not accept Ms Fisher's arguments on this point for those reasons and the reasons I discuss in more detail below.

Were Ms Fisher's responses to the allegations considered?

[24] Ms Fisher argues that there are several elements to this point. One of those elements is the consideration by Ms Pippos of the two witnesses who declined to give evidence, which I have dealt with above.

[25] Ms Fisher also argues that Mr Koeppe's statement (about Allegation One) was 'theatrical and inflammatory'. Ms Fisher submits that Mr Koeppe's statement:

...largely recounts his feelings about an atmosphere he believes is created by my attending the health service - independent of my actions - along with impressions of my character which he also specifically identifies as formed based on accounts from largely nameless others prior to meeting me.

...attests assumptions, racist tropes and hyperbole, rather than my conduct.

[26] It is true that some of Mr Koeppe's statement does contain irrelevant material, including his conjecture and assumptions. It needs to be remembered that Mr Koeppe was simply recording his account, not giving evidence in a trial. That first written record, made shortly after the incident, did contain comments as to how he felt and his impressions of Ms Fisher. However, none of that was relied upon by Ms Pippos. When Ms Shelswell, Director of Nursing and Midwifery (South Burnett), and Ms Hunter, Senior Human Resources Advisor, interviewed Mr Koeppe on 28 August 2024, they produced a 'File Note'. That document, which was also put to Ms Fisher and considered by Ms Pippos when reviewing the case along with Ms Fisher's reply, reproduced none of that irrelevant opinion or conjecture. The File Note focused on evidence as to the facts, which was what Ms Pippos did in the Decision. I therefore reject this submission. None of that irrelevant material was relied upon in my opinion.

[27] Ms Fisher also argues that Ms Pippos did not consider the fact that Ms Fisher was emotional on the day of Allegation Two due to having lost a loved one. That is admitted, but the Service points out that that fact was never put to Ms Pippos in Ms Fisher's response to the show cause. It says that it would be unreasonable to expect Ms Pippos to have considered this unknown fact when preparing the Decision. I accept that submission for those reasons.

[28] It is possible in an appeal like this to consider evidence that was not before a decision-maker at the relevant time using the Commission's general powers to inform itself as it deems necessary.[10] The Commission can do so even where no application is made in my opinion. But for obvious reasons, it would be rare for the Commission to consider in an appeal something that was not before the decision maker because the nature of these appeals is a review of the decision, not a re-hearing. That said, there are several reason why I would not be inclined to place any weight on the fact that Ms Fisher had lost a loved one on or around the day of the incident in Allegation Two.

[29] Firstly, this fact was something that Ms Fisher had ample opportunity to put before Ms Pippos as part of her show cause response. Ms Fisher chose not to and there is no explanation as to why. In those circumstances it seems fair and reasonable to hold Ms Fisher to the facts that she placed before Ms Pippos for consideration in formulating the Decision.

[30] Secondly, this fact does not seem to me to be something that would have made any difference had Ms Pippos known about it when making the Decision. It might have added weight to the findings as to Ms Fisher's emotional state that day. But that could only have been persuasive towards proving the conduct was as alleged in my opinion. Ms Pippos' findings were that Ms Fisher was loud and aggressive that day and said the things alleged in the manner alleged. This fact seems to me to be one that, had Ms Pippos known it at the time, would only have reinforced her finding as to how Ms Fisher acted that day. It would not have had any other evidentiary value in my opinion.

[31] Thirdly, this fact sits somewhat at odds with the facts Ms Fisher presented in her response to the show cause. In response to Allegation Two, Ms Fisher attributed her emotional state and the raising her voice to being frustrated about the changes that had been introduced while she was away on leave. She said nothing about the fact that she had lost a loved one on or around that day. Giving Ms Fisher the benefit of any doubt, the fact of losing a loved one on or around that day could have been one of two reasons why Ms Fisher was 'quick to fire', so to speak. But that simply brings me to the conclusion noted immediately above. This fact, had Ms Pippos known it at the time, could only have worked to reinforce her findings as to how Ms Fisher conducted herself on that day. In my opinion, this fact would not have made any difference to the outcome had Ms Pippos known it when she was making the Decision.

[32] When considering the balance of Ms Fisher's responses in the Decision, it can be observed that Ms Pippos set out a great deal of detail from Ms Fisher's response. There was clear consideration given to that material where Ms Pippos weighed it against Ms Fisher's admissions as to the topics discussed, the location of the discussions, with whom the discussions were had, raising of voice at times, et cetera. Ms Pippos noted that much of the Allegations were admitted. Ms Pippos rejected Ms Fisher's assertions that her version of the conduct was acceptable, and that witnesses had exaggerated the nature of her conduct. That rejection, and the stated reasons for it, is clear evidence that Ms Pippos did in fact consider Ms Fisher's response and the arguments raised in it. Ms Fisher does not agree with Ms Pippos' conclusions. But there is no ground of appeal made out regarding an alleged failure to consider Ms Fisher's responses in my opinion. This ground of appeal therefore fails.

Did Ms Fisher have no satisfactory reason for being on site?

[33] Ms Fisher argues that the Decision is not fair and reasonable because in it Ms Pippos remarked that there was no satisfactory reason for Ms Fisher to have been on site on the day in question in Allegation One. This ground of appeal is misconceived in my opinion because it places far too much importance on those remarks by Ms Pippos. Ms Pippos did make this finding but she did not place great weight upon it in my view. Even so, Ms Fisher raises this as a ground of appeal and I have considered it below.

[34] This issue is confined to a finding in relation only to Allegation One, which occurred on 19 July 2024. Allegation Two was an incident that occurred on Ms Fisher's return to work on 13 August 2024. The issue here is whether it was fair and reasonable for Ms Pippos to find that Ms Fisher had no satisfactory reason for being on site on 19 July 2024 when she was on leave and not due to return for approximately another three weeks.

[35] Ms Fisher admits she was on leave and not working on the day in question. It is also not controversial that Ms Fisher had been away on leave for a lengthy period of time. So it is not as though Ms Fisher had popped into work the week after she set off on a year's leave to tidy up a few things she did not get to the week before. Yet Ms Fisher was, she admits, at the workplace, engaging with employees, directing them to answer her questions about work matters and conducting meetings with them about work matters.

[36] Ms Fisher did not argue in her show cause response that she was reacquainting herself with the workplace in readiness for her upcoming return to work either. As to Allegation One, Ms Fisher's show cause response says that she recalls (my emphasis):

...approaching the Cherbourg Community Health Service Administration area to follow up regarding the men's business [sexual] health poster that was displayed in one of the bathrooms (i.e. public toilet) in the community health building.

[37] I have underlined that part of the submission because it clearly identified Ms Fisher's reason for approaching that area of the workplace that day.

[38] In her submissions on appeal, Ms Fisher argues that it was her right, indeed an obligation, to be in the workplace raising concerns about this matter as part of her general community and professional role. Ms Fisher does not point to any evidence in support of that. However, it is clear enough that the relevant facts are, I find:

(a) At the time of Allegation One, Ms Fisher was on leave, had been for many months and was not due to return for approximately another three weeks;

(b) There was another employee acting in Ms Fisher's role at the time;

(c) Ms Fisher's role is a senior one, being the Health Service Manager; and

(d) Ms Fisher's purpose for being on site was to take up an issue that concerned her in respect of what she felt was a lack of consultation, and inappropriate wording, of the relevant men's health poster.

[39] I acknowledge that there will be, particularly for senior employees in leadership roles like Ms Fisher's, occasions where a call to duty occurs whilst on leave. However, this was a situation where the leave was lengthy and another employee was acting in Ms Fisher's role at the time. That is a large part of the underpinning reasoning to Ms Pippos' decision on this point. If this was a function of the role that Ms Fisher occupied, it was someone else's obligation to address it, not Ms Fisher's.

[40] Ms Fisher obviously feels that she had a legitimate purpose being on site that day and that it was her duty to do so, despite being on leave. That is clearly why she objects so vehemently to this finding. However, I find it was fair and reasonable for Ms Pippos to have concluded that in the circumstances where Ms Fisher was on extended leave, not due to return for about three weeks, and where someone else was acting in her role, there was no obligation or duty on Ms Fisher to engage in this kind of work. On that basis, I reject Ms Fisher's submissions and find that it was fair and reasonable for Ms Pippos to conclude as she did on this point - that Ms Fisher had no satisfactory reason for being on site that day.

Were Ms Pippos' findings supported by objective evidence?

[41] Ms Fisher's argument here is that Ms Pippos' findings were not supported by objective evidence. That seems to me to be an unsustainable argument based on my assessment above of the material that was before Ms Pippos (and even some that was not),[11] the manner in which Ms Pippos considered that material and how she set out her consideration in detail in the Decision.

[42] In the Decision, Ms Pippos clearly relies on witness accounts and correctly identifies where they corroborate on the relevant issues. In many respects, Ms Fisher does not openly deny much of the relevant alleged conduct. As Ms Pippos identifies, the relevant conversations are admitted to, as are the locations, topics discussed, much of the words used (but not all), dates, much of the conduct, and the persons who witnessed it.

[43] For example, Ms Pippos notes (in relation to Allegation One) that Ms Fisher's response 'broadly corroborates' with what was reportedly said to Ms Horne regarding using pen and paper when the computer system was down and that 'people are dying'. Ms Pippos does not say that the two versions are identical. Rather, Ms Pippos observes that there is broad corroboration between the two accounts that allows her to draw the inference that she does. Namely, preferring the account given by witnesses as opposed to that given by Ms Fisher where the two versions differ only in ways that are obviously adverse to Ms Fisher.

[44] In weighing up each contested fact, Ms Pippos had clear regard to Ms Fisher's denials of, for example, being aggressive or making comments in a loud or aggressive tone, or pressing her face against the glass window where Ms Horne was stationed in relation to Allegation One. Ms Pippos did rely on the relevant and reliable parts of Mr Koeppe's evidence, which I find Ms Pippos was entitled to do.

[45] Ms Fisher also argues that Ms Pippos erred when she relied on her findings in Allegation Two as support for her findings in Allegation One. The point of this argument being that the events of Allegation Two occurred after those of Allegation One.

[46] Ms Pippos' relevant reasoning was that the conduct in Allegation Two was very similar in nature, and close in time, to that of Allegation One. As well, Ms Fisher had made admissions in her show cause response about a lot of the relevant conduct in Allegation Two (speaking loudly and being frustrated, for example). Ms Pippos concluded that any doubts she had as to how aggressive and loud Ms Fisher was in Allegation One were supported by her findings as to how loud and aggressive Ms Fisher was in respect of Allegation Two.

[47] Ms Pippos relevantly said that based on her considerations for Allegation Two, it was evident to her that Ms Fisher had demonstrated similar inappropriate communication/behaviours towards other employees around the time of Allegation One. As part of this reasoning, Ms Pippos concluded that Ms Fisher found it difficult, or was unable to, recognise when she was being loud and aggressive. Ms Pippos came to that view by comparing the statements given by witnesses in response to Allegation Two with the admissions made by Ms Fisher as to her own emotional state (speaking loudly, being frustrated but submitting she had not intended to be aggressive, for example) and the apology and statement of regret. Consequently, Ms Pippos went on to find that it was 'entirely possible' that Ms Fisher failed to recognise that her behaviour was being perceived by witnesses in the manner it was.

[48] Ms Pippos appears to have relied on what she found in Allegation Two to be proof of Ms Fisher's propensity or tendency towards being loud and aggressive in the incident in Allegation One. Ms Pippos was not bound by the rules of evidence and nor is the Commission, but the decision and process must still be fair. In King v Workers' Compensation Regulator ('King'),[12] his Honour, O'Connor VP, explained the nature of ss 531(2) and (3) of the IR Act, which say:

(2) In proceedings, the commission or Industrial Magistrates Court -

(a) is not bound by rules of evidence; and

(b) may inform itself in the way it considers appropriate in the exercise of its jurisdiction.

(3) Also, the commission or Industrial Magistrates Court is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of -

(a) the persons immediately concerned; and

(b) the community as a whole.

[49] His Honour noted that s 531(2) provides the Commission with the discretion to accept or reject material as it sees fit.[13] However, his Honour also observed that the discretion is not unbounded and that the Commission's duty to act judicially and to afford the parties procedural fairness meant that ''the rules of evidence should only be departed from in the clearest of circumstances and where the interests of justice require it to be done.''[14]

[50] Also in King, his Honour considered the use of similar fact evidence. That was a workers' compensation appeal where it was in issue that the appellant had suffered a psychiatric injury due to the conduct of her manager.[15] The appellant sought to lead similar fact or propensity evidence to prove that the manager had, on previous occasions, acted in a similar way to that alleged.[16] His Honour stated that similar fact evidence will be admissible if it:

[11] ... is logically probative, that is, relevant to proving a matter in issue, provided that it is not unfair or oppressive and the other side has had notice, it will be admissible.

[12] As was observed by Martin J in St Clair v Timtalla Pty Ltd & Anor,[17] with respect to the admissibility of similar fact evidence, the modern cases support the view that the essential criterion for admissibility is relevance.[18]

[51] Ms Fisher had notice of the conduct alleged in Allegation Two when she responded to Allegation One. It was clear that the same sort of loud and aggressive conduct was alleged in each instance. In my opinion, the evidence as to a tendency to have acted in Allegation One in a similar way to the mostly admitted and otherwise corroborated conduct in Allegation Two was logically probative and relevant to the issue Ms Pippos had to resolve. That was the conflict between Ms Fisher's denials, her admissions and the witness accounts in Allegation One. In my view the conclusion was open to be drawn and was therefore fair and reasonable. Accordingly, I do not accept Ms Fisher's submissions on this point.

[52] Ms Fisher also argues that Ms Pippos should have discounted Ms McGregor's evidence due to lack of credibility. Ms Fisher's submission here is that Ms Pippos ought to have had regard to what Ms Fisher asserts was a lack of reliability and questionable character of Ms McGregor. That is in relation to Allegation Two. There is, however, no evidence to support that assertion. It is also not a matter that Ms Fisher put before Ms Pippos when she submitted her response to the show cause. There is no error in Ms Pippos placing weight, as she did, on Ms McGregor's account, combined with the appropriately corroborating accounts given by other witnesses and the admissions made by Ms Fisher in her response to the show cause. This submission, proffered now for the first time as a ground of appeal, is therefore rejected.

[53] Ms Fisher also argues that Ms Pippos placed inappropriate emphasis on the use by Ms Fisher of relevant phrases such as 'fucking black bastards', 'black people' and 'black workers'. There is some overlap here with the arguments advanced about cultural sensitivity and institutional racism discussed below. But the argument is a short point. Essentially, it is that Ms Pippos wrongly approached Ms Fisher's remarks as if they had been made by a non-Aboriginal or Torres Strait Islander person. Essentially, Ms Fisher's argument is that Ms Pippos has missed the cultural acceptability of Aboriginal or Torres Strait Islander persons referring to themselves in such a manner. I do not accept that submission. It is clear that Ms Pippos did give careful consideration to those submissions and that distinction argued by Ms Fisher in her response to the show cause. Ms Pippos' conclusion was clearly stated, as were her reasons. After considering these arguments, Ms Pippos found that regardless of whatever level of cultural acceptability might attach to such terms being used in a self-referring way by Aboriginal or Torres Strait Islander people, they were objectively offensive in the circumstances and not fit to be used by any senior member of staff in the workplace. That conclusion was open to be drawn. It was fair and reasonable in the circumstances for Ms Pippos to do so in my opinion.

The racism and cultural considerations arguments

[54] These arguments all have a common issue to them. These arguments include the cultural rights and cultural safety arguments as well as the institutional racism argument Ms Fisher has advanced in her submissions. The arguments can be summarised as being that Ms Pippos' decision was infected by, or the result of, 'institutional racism' and that her decision failed to appreciate the cultural issues Ms Pippos argued were significant.

[55] The common element to these arguments is the reason why they must be rejected. They all conflate the sense of duty that motivated Ms Fisher to act with the way she acted. What motivated a person to say a certain thing or act a certain way is actually a very different consideration for an employer to how it was the person acted.

[56] Motives or attitudes can be used as an evidentiary basis for concluding whether a person acted a certain way or said a certain thing. But it needs to be remembered that Ms Fisher's response to the allegations was effectively an admission that she was loud and forceful in some, but not all, instances but never meant to appear aggressive. Ms Fisher's response included an apology for any offence caused and some admissions (Allegation Two in particular) to having raised her voice, being frustrated and a statement of regret. This was far from a denial and Ms Pippos was correct in my view to take it as such.

[57] On my assessment of the materials before Ms Pippos and the Decision itself, the primary focus of all of it was the manner in which Ms Fisher went about expressing her concerns. On the one hand Ms Pippos had clear evidence from witnesses with excellent capacity to observe the events in question proving the loud and aggressive manner in which Ms Fisher spoke on each occasion. On the other hand, Ms Pippos had mostly admissions with only some denials, at best, a non-denial and apology and statement of regret from Ms Fisher for the way her conduct may have been perceived.

[58] Another point is worthy of noting here. Ms Fisher gave that apology and response after considering all of the statements gathered from witnesses and meeting notes concerning the accounts given by Mr Koeppe, Ms McGregor, Ms Cridge, Ms Cooze, Ms Dodd and Mr Stott. Ms Pippos, rightly in my opinion, considered the significance of that fact and Ms Fisher's response, which included the following:

I am sincerely sorry and apologetic towards staff affected by my actions (s) (i.e., loudness questions and comments) and if these staff perceived these as acts of aggression as this was not my intent.

[59] In my opinion, it was open to Ms Pippos to conclude that Ms Fisher simply disagreed with how she was perceived by others compared to how she perceived herself. That is, stated simply, Ms Fisher did not think her conduct to be overly loud and aggressive. I note, however, that Ms Fisher admitted that it was open to others to construe it as such. Ms Pippos was clearly influenced by that in the Decision. Ms Pippos' conclusion was open to be drawn in my opinion. It was fair and reasonable for Ms Pippos to have done so in my view.

[60] In its submissions, the Service denies the allegations of institutional racism and points to the absence of any evidence to support the claim. That submission should be accepted in my opinion for two reasons.

[61] First, there is on my assessment, as the Service submits, no evidence whatsoever to support a finding that Ms Pippos' decision was infected by or the result of 'institutional racism' as Ms Fisher alleges. In fact, the evidence is squarely at odds with such a proposition in my opinion. For example, the investigation meeting notes taken by Ms Shelswell and Ms Hunter in response to each of the witness statements are accurate and focused only on the allegations of fact on my assessment of them. They do not repeat or give weight to parts of witness accounts that are not factual. By way of illustration, in the investigation meeting notes concerning Mr Koeppe's statement, Ms Shelswell and Ms Hunter do not repeat or place weight on parts of Mr Koeppe's statement that are conjecture and opinion: 'I sensed that she speaks through people as opposed to communicating with them,' for example.

[62] Second, on its face, it is abundantly clear to me from my reading of the Decision itself, and the other material before Ms Pippos at the time, that the process and the Decision, were focused on Ms Fisher's conduct, not the issues she was raising or the fact she was raising them. I have had regard to the statements by relevant witnesses to each incident as well as the investigation meeting notes and the Decision itself. I find that the process and Ms Pippos' findings were not a response to the issues Ms Fisher raised, or the fact Ms Fisher raised those issues, but rather, the way she went about doing so in each instance.

[63] The 'angry black woman' trope argument is a little different to the institutional racism and cultural sensitivities argument. In this argument, Ms Fisher submits that an unconscious bias operated in the minds of those who initiated the complaints, those who investigated them, and also in Ms Pippos who authored the Decision. That bias, Ms Fisher argues, caused Ms Fisher's conduct on each occasion to be wrongly characterised as aggressive and unacceptable workplace behaviour. The operative force of this bias is said to be the 'angry black woman' trope. If a white man or woman acted the way Ms Fisher had on each occasion, they would have been characterised as authoritative, decisive, caring or passionate, Ms Fisher submits.

[64] The reason why that argument must be rejected is twofold. Firstly, on any reasonable and objective review of the Decision, there is no suggestion that it has been other than evidence-based upon the corroborating accounts of the witnesses. Ms Pippos places appropriate weight on the witness accounts and properly reasoned out her findings by reference to Ms Fisher's admissions and reconciling her denials that were inconsistent with the (corroborating) accounts given by witnesses.

[65] The measure of the conduct which Ms Pippos applied was objective and very specific, with reference to the Code of Conduct that required adherence to policy. Ms Pippos identified the relevant policy as being A1 - Workplace Conduct and Ethics. A copy of the policy was provided to Ms Fisher as part of the show cause process. Ms Pippos specifically referred to clause 2 of that policy, which contains the provision '[w]e treat others with respect, display reasonableness and take pride in what we do.' Ms Pippos also referred to the provision in the policy that stated '[w]e engage with others and demonstrate empathy, care, kindness, support and understanding.' These clear and logical reasons do not lend themselves to me inferring that there was any form of bias operating in Ms Pippos' mind when making the Decision as Ms Fisher invites me to do.

[66] Secondly, as the Service points out in its reply submissions, some of the complaints about Ms Fisher's manner, tone, words used and the relevant incidents were made by First Nations employees. I accept the Service's submission that this fact is very much at odds with the argument that those employees would also be affected by what Ms Fisher suggests is an unconscious bias in the form of the 'angry black woman' trope.

[67] This submission is not developed. It seems to have been folded into Ms Fisher's submissions about cultural considerations and institutional racism, which I have dealt with above. However, it is clear on the Decision itself that Ms Pippos did expressly give consideration to Ms Fisher's human rights. Ms Pippos set out several examples of such rights and reasoned that any potential infringement of them was justified in the circumstances.

Was the Code of Conduct correctly applied by Ms Pippos?

[68] The argument here is not clearly developed. Part of it appears to be that Ms Pippos is alleged to have deviated from the relevant Code of Conduct by not appropriately considering Ms Fisher's response to the show cause. That is clearly not the case, however. Based on my findings above, I accept the Service's submission that Ms Pippos gave careful consideration to Ms Fisher's responses and did not deviate from the Code of Conduct in reaching those conclusions.

[69] Ms Fisher also points to the relevant values of compassion, integrity and dignity. Ms Fisher argues that her conduct on both relevant occasions did comply with the Code of Conduct. That submission is without substance in my opinion. Again, it erroneously focuses on Ms Fisher's motives for acting whilst ignoring the manner in which she acted and the impact it had on others. On my reading of the Decision, it is abundantly clear that Ms Pippos did consider all of Ms Fisher's response and did measure that response appropriately (specifically and accurately) against the Code of Conduct and policies it obliged Ms Fisher to comply with. Ms Pippos relevantly found that despite Ms Fisher's statements as to intent, the finding was that the relevant conduct did occur and did cause offence. On my review of the Decision and the material before Ms Pippos at the time she made it, it was open to her to conclude that Ms Fisher had breached the Code of Conduct in both instances. I therefore reject this submission and this ground of appeal fails.

Was the investigation timely, fair, appropriate and proportionate to the seriousness of the work performance matter?

[70] Ms Fisher also argues that the investigation was not timely, fair, appropriate and proportionate to the seriousness of the work performance matter. The crux of this submission is that the process took a long time and the two allegations ought to reasonably have been addressed by an alternative dispute resolution rather than the process that was carried out.

[71] As to the issue of the investigation not being timely, Ms Fisher argues that it commenced on 3 December 2024 and took many months. Ms Fisher was suspended during that process. That included a direction that she not attend the Cherbourg Hospital other than to seek medical treatment or visit family and friends receiving treatment. Ms Fisher argued that these were onerous and unreasonable conditions.

[72] The difficulty I have with that submission is that it does not address any conclusions reached in Ms Pippos' decision. Rather, it appears to be a complaint about the duration of the process and the decision to suspend Ms Fisher's employment taken much earlier (and which cannot be the subject of these proceedings). To the extent these submissions address the suspension and direction not to attend the workplace with exceptions, that seems entirely reasonable in the circumstances. In my opinion, it was fair and reasonable for the Service take that approach, even though that decision is not one that can be appealed in this process.

[73] As to timing, the relevant Directive (05/23): Discipline does require that disciplinary processes be conducted and finalised in a timely way. That is not defined, however. In this case, the first show cause notice was issued on 5 December 2024. An extension for providing a response was granted at Ms Fisher's request. That had the effect of delaying the outcome to a degree. I accept the Service's submission that between Ms Fisher's response to the first show cause notice and the Service issuing the Decision on 6 June 2025, Ms Pippos had to devote significant time and consideration to the matter. I observe that Ms Fisher's response was lengthy and detailed. There were several witness accounts to take into consideration too. There were also two different incidents to consider. On my assessment of the Decision, Ms Pippos did give careful consideration to each relevant account of each incident. She also had regard to the detailed submissions that Ms Fisher made in relation to each allegation. In those circumstances, I accept that the length of this process was not such that it caused the Decision to be less than fair and reasonable. This ground of appeal therefore fails.

[74] As to the submission about the allegations more reasonably being addressed by way of an alternative dispute resolution process, Ms Fisher makes no reference to any procedure or policy that dictates that course ought to have been taken rather than the one which the Service carried out and which culminated in the Decision. I therefore do not accept that there was any breach by the Service such that would cause the Decision, or the process that led to it, to be less than fair and reasonable. On my assessment, it seems entirely appropriate that the Service conducted the process in the manner it did. This includes the process by which it formally (in writing) presented Ms Fisher with the allegations in detail, the gathering of evidence, seeking Ms Fisher's response after presenting her with all of that evidence, considering carefully that response as well as all of the evidence, and making findings with detailed reasons as to what in fact occurred on the relevant days. That seems to me to be a fair and reasonable way of approaching the allegations. I therefore reject this submission.

[75] Ms Fisher also argues that the fact that the Service is considering dismissal as the appropriate form of discipline is not fair and reasonable. The difficulty with that submission is that the Decision is simply a finding of facts. It has not decided what form or level of discipline is to be imposed. It is true that the Service has identified that it is considering making a decision to discipline in the form of a dismissal. However, that cannot be described as a 'decision'. That is simply putting Ms Fisher on notice as to how serious her situation is in my opinion. I therefore reject the submission that the Service's reference to considering potential dismissal constitutes any sort of appealable decision, or part of this decision that may be appealed.

[76] I conclude that the Decision was fair and reasonable. Each of the arguments advanced by Ms Fisher, considered in turn, are rejected. I order accordingly that:

[1] Goodall v State of Queensland [2008] QSC 319, [5], cited by Dwyer IC in Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480, [7].

[2] Industrial Relations Act 2016 (Qld), s 562B(3).

[3] Colebourne v Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [25].

[5] Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 158, [48]-[49].

[6] Public Sector Act 2022 (Qld), s 221.

[7] Ehrlich v Queensland [2024] QIRC 209.

[8] Amaya v State of Queensland (Queensland Health [2022] QIRC 117, [31]-[36], which I followed in Haw v State of Queensland (Queensland Fire Department) [2026] QIRC 096, [42].

[9] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 ('Hunt'), [85], citing Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam [2003] HCA 6, [34].

[10] Industrial Relations Act 2016 (Qld), s 531(2).

[11] The fact that Ms Fisher had lost a loved one on or around the day of the incident in Allegation Two.

[12] [2019] QIRC 134 ('King').

[17] [2010] QSC 296, [34].

[18] King (n 12) [11]-[12], citing Mister Figgins Pty Ltd v Centrepoint Freeholds Pty Ltd [1981] FCA 15; (1981) 36 ALR 23; H W Thompson Building Pty Ltd v Allen Property Services Pty Ltd [1983] FCA 166; (1983) 48 ALR 667; O'Brien v Chief Constable of South Wales Police [2005] 2 AC 534.