Fitzgerald v State of Queensland

Commission Chief Executive Guideline 01/17: Discipline cl 1, sch 1

State of Queensland (Queensland Health) v Hume [2024] ICQ 3

• [1] Ms Melinda Fitzgerald (the Appellant) was employed by Queensland Health, Children's Health Queensland Hospital and Health Service (the Respondent; CHQHHS) as a Manager of Property, Facilities and Leasing.
• [2] The Appellant resigned effective 30 March 2022.[1]
• [3] On 22 July 2024, Mr Frank Tracey, Health Service Chief Executive of the Respondent made a post-employment disciplinary declaration pursuant to s 95 of the Public Sector Act 2022 (Qld) (PS Act) (the Decision) in relation to the Appellant's conduct while in employ of the Respondent.
• [4] The Decision outlined the following disciplinary findings which were made on 6 September 2023:

Allegation One: is substantiated, namely that you failed to declare a Conflict of Interest regarding your relationship with Mr Mark Gurdler, Director ICM Maintenance Pty Ltd during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the following projects.

1. Tony Albert Boomerang Art Sculpture Installation project between 2016 and 2016 (Boomerangs Project)
2. Alderley Village Refurbishment works in 2018.
3. The remodelling of the Ophthalmology Outpatient Area on level 2D at the Queensland Children's Hospital (QCH) in 2018.

Allegation Two: is substantiated, namely that you accepted and failed to declare a gift of holiday accommodation from Mr Gurdler in October 2017 for a 10-day period of stay at a holiday home in Kingscliff NSW from 26 December 2017 to 5 January 2018 valued at approximately $14,000 (based on cost estimates for the same period of stay between 2022 and 2023).

Allegation Three: is substantiated, namely that during the procurement and subsequent contract management processes conducted by CHQHHS between 2016 and 2018 in relation to the Boomerangs Project, you failed to manage a conflict of interest held by Ms Kristyn Gurdler, whilst in a number of positions with Faculties Management at CHQHHS regarding her relationship with Mr Gurdler of ICM construction who were successful contractors for the project.

Allegation Four: is substantiated, namely during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the Alderley Village Refurbishment works in 2018, you failed to manage a declared conflict of interest held by Ms Gurdler, then acting Property and Leasing Officer, Facilities Management at CHQHHS regarding her relationship with Mr Gurdler of ICM construction who were the successful contractors for the project.

Allegation Five: is substantiated, namely that during the procurement and subsequent contract management processes conducted by CHQHHS in relation to the remodelling of the Ophthalmology Outpatient Area on level 2D at the Queensland Children's Hospital (QCH) in 2018, you failed to manage a conflict of interest held by Ms Gurdler, regarding her relationship with Mr Gurdler of ICM Construction Pty Ltd and other ICM employees. ICM was the single supplier contractor awarded the project.

Allegation Six: is substantiated, namely that on 16 March 2022, following the suspension meeting held with you by Ms Naomi Hebson, Executive Director People and Governance at CHQHHS and Ms Joyce Chege-Resing, Senior Human Resources Consultant at CHQHHS, it is alleged that you failed to follow a lawful direction by not immediately handing in your work mobile phone.

Allegation Seven: is substantiated, namely that following the suspension meeting held with you on 16 March 2022, it is alleged that you provided false and misleading information when you handed in your mobile phone allegedly having removed potential evidence contained in it that directly related to the subject of the investigation.

• [5] In the Decision, Mr Tracey determined that the disciplinary action which would have been taken had the Appellant remained in the employment of the Respondent, was termination of her employment.
• [6] On 12 August 2024, the Appellant filed an appeal against the Decision.

• [7] Following the Appellant's resignation, the Respondent undertook an investigation into several allegations against the Appellant throughout 2022 and 2023.
• [8] A timeline of the Respondent's investigation is produced below:

Mr Tracey issued a notice to show cause with seven allegations for Ms Fitzgerald's response (the First Show Cause)

Ms Fitzgerald's lawyers responded to the First Show Cause.

Mr Tracey issued a decision finding the seven allegations were substantiated, and determined that pursuant to section 91(1)(h) of the PS Act Ms Fitzgerald had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action being a breach of the Code of Conduct for the Queensland Public Service section 1.2 'Manage Conflicts of Interest'. The letter provided Ms Fitzgerald an opportunity to show cause for the proposed disciplinary action of making a disciplinary declaration (the Second Show Cause).

On 19 September 2023, Ms Fitzgerald's lawyers responded to the Second Show Cause raising concerns about the findings but did not respond to the proposed disciplinary action of a disciplinary declaration.

Mr Tracey responded to the concerns raised in the Second Response and gave Ms Fitzgerald a further and final opportunity to respond to the proposed disciplinary declaration (the Third Show Cause).

Ms Fitzgerald's lawyers responded to the Third Show Cause (Third Response). Again, the Third Response did not respond to the proposed disciplinary declaration and raised procedural concerns about the disciplinary findings.

Ms Fitzgerald's lawyers wrote to Mr Tracey stating they assumed the disciplinary process had ended with no disciplinary action taken

Mr Tracey issued a decision on the proposed disciplinary action and resolved to make a disciplinary declaration that, if Ms Fitzgerald remained employed, her employment would have been terminated.

• [9] In her Appeal Notice filed on 12 August 2024, the Appellant submitted that the Decision was unfair and unreasonable because (emphasis added):

The basis of this appeal is very simple - can the QIRC determine the decision maker made a fair and just decision within the time frames of the Public Service Act 2022 (Qld).

The decision maker made a disciplinary declaration in breach of the express condition of section 95(4) of the Public Service Act 2022 (Qld) that requires such action to be taken within two years from the end of the employee's employment:

1. Employment ceased on 30 March 2022
2. A decision to impose a disciplinary declaration (take disciplinary action) was made 22 July 2024

It would also be open to argue that I was denied procedural fairness by making the disciplinary declaration. This is because throughout the process, it was raised on my behalf that I have been denied procedural fairness and asked for the directives to be followed. Those issues are revealed by the correspondence throughout the disciplinary process.

There was a denial of procedural fairness by non-compliance with relevant directives and policies by the delegate:

1. The decision maker did not provide a copy of all evidence relevant to the facts considered, despite it being repeatedly requested, in breach of Directive 05/23.
2. The decision maker did not review all relevant material before making a decision, in breach of Directive 05/23.
3. The decision maker engaged in unexplained and unreasonable delays throughout the disciplinary process, in breach of Directive 05/23.
4. The decision maker relied upon a redacted investigation report in its findings instead of reviewing the evidence that informed the findings, in breach of Directive 17/20 and/or Directive 01/24.

1. The decision be set aside; and
2. Substitute a decision that no disciplinary action may now be taken due to operation of s 95(4) of the Act.

• [10] In accordance with the Directions Order issued on 16 August 2024, the parties filed written submissions.
• [11] I have carefully considered all submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal.

• [12] Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. A "disciplinary decision" is appealable under s 131(1)(c) of the PS Act.
• [13] Section 129(b) of the PS Act defines a "disciplinary decision" to encompass a decision under a disciplinary law to discipline "a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment".
• [14] Section 133(c) of the PS Act prescribes that a former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive. The Appellant meets that requirement.
• [15] Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission.

• [16] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes.
• [17] The Decision was given on 22 July 2024 and the Appeal Notice was filed on 12 August 2024. Therefore, I am satisfied the Appeal Notice was filed by the Appellant within the required timeframe.

• [18] Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • set the decision aside and return the matter to the decision-maker with a copy of the decision on appeal and any directions considered appropriate; or
  • set the decision aside and substitute another decision.

95 Disciplinary declaration if employment as public sector employee ends

(a) a person is employed in a public sector entity (the former entity); and

(b) a disciplinary ground arises in relation to the person; and

(c) after the disciplinary ground arises the person's employment as a public sector employee ends for any reason.

(2) However, this section does not apply in relation to a person who is a former public sector employee if the person's previous chief executive is aware -

(b) the previous chief executive or the chief executive officer of the Crime and Corruption Commission has taken, is taking, or intends to take disciplinary action against the person, under the Crime and Corruption Act 2001, chapter 6, part 1, division 9, in relation to the disciplinary ground.

(3) The former public sector employee's previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public sector employee in relation to the disciplinary ground.

(4) The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment.

(5) However, subsection (4) does not stop disciplinary action being taken following an appeal or review.

(a) an investigation of a suspected criminal offence; or

(b) an investigation of a matter for the purpose of notifying the Crime and Corruption Commission of suspected corrupt conduct under the Crime and Corruption Act 2001.

(7) In disciplining the former public sector employee, the former public sector employee's previous chief executive may make a disciplinary declaration and may not take any other disciplinary action.

(8) The former public sector employee's previous chief executive may only make a disciplinary declaration if the disciplinary action that would have been taken against the employee if the employee's employment had not ended would have been -

(9) The making of the disciplinary declaration does not affect the way in which the employee's employment ended, or any benefits, rights or liabilities arising because the employment ended.

disciplinary declaration means a declaration of -

(a) the disciplinary finding against the former public sector employee; and

(b) the disciplinary action that would have been taken against the former public sector employee if the employee's employment had not ended.

previous chief executive, of a person, means the person's chief executive before the employment of the person as a public sector employee ends for any reason.

• [20] Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
• [21] The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at by the Respondent and the associated decision-making process.
• [22] Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal. In reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.

• [23] In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[2] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
• [24] In State of Queensland (Queensland Health) v Hume,[3] his Honour explained (citations omitted):

[41] Where I have difficulty with the Department's submissions is in respect of its construction of the phrase '... fair and reasonable' and the implication of that construction on the review of a decision in deciding a public service appeal. This difficulty arises for a number of reasons.

[42] First, having regard to the relevant text of the IR Act, there is no reason to conclude that the words 'fair' and 'reasonable', that make up the phrase '... fair and reasonable', are used in other than their ordinary meaning.

[43] The Department accepted that the Commission was not sitting in judicial review of a decision that could be appealed. However, the Department submitted the focus of the Commission's consideration ought to be whether the decision was reasonable applying a Wednesbury and Li approach in terms of reasonableness, as opposed to the Commission considering for itself what was reasonable. The text of s 562B(3) of the IR Act does not indicate that the Commission is assigned to review relevant decisions according to the principles of judicial review. That is, the statutory text does not indicate that those words are meant to be construed in the technical sense pressed by the Department; namely, that 'reasonable' involves a consideration of whether the decision met the legal standard of reasonableness.

[44] Similar arguments made to the Commission have been rejected by the Commission.

[45] Mr McKay of Together Queensland, Industrial Union of Employees, which is the agent for Mr Hume, referred to the decision of Nicholson J in Pope v Lawler as authority for the proposition that the words 'fair' and 'reasonable' in s 562B(3) of the IR Act have their ordinary meaning.

[48] Allowing for the clear differences in the applicable legislation, the reasoning of Nicholson J supports the conclusions I have reached above, namely:

• that s 562B(3) of the IR Act, by its terms, does not strictly ascribe to the words 'fair' and 'reasonable' the technical meanings pressed by the Department; and

• that the legislative intention is that those words, that make up the phrase '... fair and reasonable' in s 562B(3) of the IR Act, are to be given their ordinary meaning.

[49] The word 'fair', in the context it is used in s 562B(3) of the IR Act, means '... free from bias, dishonesty, or injustice' and the word 'reasonable' means '... agreeable to reason or sound judgment'. Whether a decision the subject of a public service appeal is '... fair and reasonable' is a question of fact.

[50] Secondly, to ascribe the technical meanings, pressed by the Department, to 'fair' and 'reasonable' would be inconsistent with the role of the Commission in respect of its original jurisdiction in deciding public service appeals. Section 447(1)(n)(i) of the IR Act provides that one of the Commission's functions is to deal with applications brought under the IR Act or another Act, '... including for public service appeals.' By s 447(2) of the IR Act, the Commission must perform its functions in a way that is consistent with the objects of the IR Act, and avoids unnecessary technicalities and facilitates the fair and practical conduct of proceedings under the IR Act.

[51] By s 531(2) of the IR Act, in proceedings, the Commission is not bound by the rules of evidence and may inform itself in the way it considers appropriate in the exercise of its jurisdiction. Section 531(3) of the IR Act relevantly provides that the Commission is to be guided in its decisions by equity, good conscience and the substantial merits of the case having regard to the interests of the persons immediately involved and the community as a whole.

[53] The limitation on legal representation in such appeals is inconsistent with the view that the words 'fair' and 'reasonable' have the technical meanings attributed to them by the Department.

Was the decision made within the required timeframe?

• [25] The Appellant's primary submission is that the decision was unfair and unreasonable as the Respondent did not comply with s 95(4) of the PS Act. That is, the Respondent did not take the "disciplinary action" within two years of the Appellant's employment ceasing.
• [26] The Appellant's employment ceased on 30 March 2022. The disciplinary declaration was given on 22 July 2024.
• [27] The Respondent submitted that while the disciplinary declaration was made more than two years after the Appellant's employment ceased, s 95(4) of the PS Act requires that "disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment". The Respondent made its disciplinary finding decision relevant to the conduct on 19 September 2023, which was within the two-year period following the cessation of the Appellant's employment.
• [28] Section 95(3) of the PS Act outlines that a former public sector employee's previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public sector employee in relation to the disciplinary ground. Section 95(4) of the PS Act requires that the disciplinary findings or disciplinary action be made or taken within two years. If it had been intended that both any disciplinary finding and disciplinary action be taken within two years, the provision would read that 'the disciplinary finding and disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment'.
• [29] I agree with the Respondent's interpretation of the provision. Had the legislature intended for both the disciplinary finding and disciplinary action to be made and taken within two years of the employee's employment ceasing, the provision would contain the word "and" instead of "or".
• [30] Although not referred to in the parties' submissions, I have had regard to the Public Sector Commission, Commission Chief Executive Guideline 01/17: Discipline (the Guideline) which provides the following guidance in relation to the equivalent provisions of the Public Service Act 2008 (Qld) regarding the disciplinary process for an employee who leaves an organisation after a disciplinary ground arises, but before the disciplinary process is commenced or finalised:

Chapter 6 provides for a disciplinary process to commence or continue against a public service employee who continues to be a public service employee in a different organisation to that in which the disciplinary ground arose. Section 187A allows the previous chief executive to make a disciplinary finding or delegate this authority to the employee's current chief executive. In continuing such a disciplinary process, s188 provides for the taking of disciplinary action against the employee.

Chapter 6 also provides for the commencement and continuation of a disciplinary process against a former public service employee, provided the process (which might consist of a disciplinary finding only or in certain cases, comprise both a finding as well as disciplinary action in the form of a 'disciplinary declaration') is completed within two years of the employee's employment ending (refer s188A). A 'disciplinary declaration' can only be made if the disciplinary action that would have been taken against the employee if their employment had not ended would have been termination or reduction in classification level.[4]

• [31] Clause 1 of the Guideline states it does not bind or substitute for decision makers needing to exercise their managerial discretion in line with the PS Act (emphasis added):

This Guideline is an aid to managing disciplinary processes under the Public Service Act 2008 (PSA), Chapter 6 ('Disciplinary action for public service employees and former public service employees'). This Guideline is to be used as an adjunct to (that is, not instead of) the PSA. Its purpose is to only provide guidance. It does not bind or substitute for decision makers needing to properly exercise their managerial discretion in line with the PSA, in response to the unique set of facts of each actual case.

This Guideline highlights that a disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. An early conversation, even in the context of a likely disciplinary process, provides the best hope for:

• avoiding an unnecessary and disproportionately protracted dispute.

This Guideline also recognises that there will be occasions when it will be necessary and appropriate for managers (or other delegate) to commence and complete a disciplinary process, and if circumstances warrant it, the process may result in a decision to dismiss the employee.

• [32] While I have reviewed the Guideline which refers to the analogous provision of the Public Service Act 2008 (Qld), I do not accept that s 188A of the Public Service Act 2008 (Qld) requires a disciplinary declaration to be made within two years of the employee's employment ending, as long as the disciplinary findings were made within the two-year period. That is, the disciplinary finding or disciplinary action ought to be taken within the two-year period.
• [33] In the case of making a 'disciplinary declaration', there is nothing contained within s 95 of the PS Act or Directive which provides that the disciplinary finding must be 'made' at the same time as the disciplinary action being imposed-. Section 95(10) of the PS Act defines 'disciplinary declaration' as a declaration of the disciplinary finding against a former public sector employee; and a declaration of the disciplinary action that would have been taken against the former public sector employee, if the employee's employment had not ended. As outlined at s 95(7), in disciplining a former public sector employee, the former public sector employee's previous chief executive may make a disciplinary declaration and may not take any other disciplinary action. This means the only disciplinary action that can be taken in circumstances where an employee is no longer in the employ of the public sector, is by making a 'disciplinary declaration'.
• [34] Disciplinary action cannot be taken until disciplinary findings have been made. The language of s 95(4) of the PS Act appears to cover circumstances where the chief executive takes disciplinary action at the same time they make the disciplinary finding. This is provided for only in limited circumstances outlined at cl 9.7 of Directive 05/23: Discipline (the Directive), where the chief executive may combine the procedural elements of a show cause process for disciplinary finding and a show cause process for proposed disciplinary action - in which case the disciplinary action would be taken at the time the findings are made. When the usual process unfolds, where the disciplinary finding and action decisions are made separately, the use of the word "or" in s 95(4) of the PS Act creates the alternative, that one "or" the other must be made within the required timeframe.
• [35] Section 95 leaves it open for the Respondent to make the disciplinary finding within the two-year timeframe after the employee's employment ended and take disciplinary action at a later time.

• [36] Whilst the Appellant did not elaborate on the procedural fairness arguments she raised in her Appeal Notice, I will briefly address them based on the material provided. The Appellant did not submit any evidence in support of her procedural fairness arguments. I note in the Appellant's written submission sent via email on 21 August 2024, the Appellant appears to have abandoned the procedural fairness arguments as she submits:

What I am asking of the QIRC is to determine whether or not Mr Frank Tracey complied with the below section from the Public Sector Act 2022:

Subdivision 3Disciplinary action against former public sector employee

95 Disciplinary declaration if employment as public sector employee ends

(3) The former public sector employee's previous chief executive may make a disciplinary finding or take or continue to take disciplinary action against the former public sector employee in relation to the disciplinary ground.

(4) The disciplinary finding or disciplinary action must be made or taken within a period of 2 years after the end of the employee's employment.

Attachment 1 shows that Mr Tracey acknowledged my resignation and confirmed my last day of employment was 30 March 2022. Over the course of the 2 year period post employment, and during the investigation, Mr Tracey only ever indicated he had made a Disciplinary Finding against me and a proposed Disciplinary Declaration "I refer to my letter dated 12 July 2023, in which Ms Fitzgerald was advised that pursuant to section 95 of the Public Service Act (the Act), I was considering taking disciplinary action". Mr Tracey did not advise of a Post Separation Disciplinary Declaration until 22 July 2024 (Attachment 2). Is this within his delegation to do so? As stated above and in the Act, the finding or action must be taken within 2 years. My interpretation of this is it must be one or the other or both, but it must be within 2 years post separation.

Throughout the course of this investigation, I complied with all of Mr Tracey's requests for response within time frames he set, sometimes short, even though his organisation did not provide the same level of response. I took this investigation very seriously, I left the job I loved because of it and I would go months on end without hearing anything at all.

Whilst I have several grievances with how Mr Tracey conducted this investigation, the above is the basis of my appeal. Did Mr Tracey follow the Act or not?

• [37] I have already addressed the question of whether Mr Tracey complied with the PS Act and determined that it was open to Mr Tracey to make the disciplinary finding decision within the prescribed timeframe and take disciplinary action at a later date.
• [38] Based on the material before me, I see that no procedural failures can be made out. The Appellant was provided with an opportunity to show cause on the allegation and proposed disciplinary grounds.[5] The Respondent adequately particularised the alleged conduct and provided evidence in support of the allegations.[6] The Appellant provided a response to the allegations and did not dispute that she failed to declare and manage conflicts of interest.
• [39] Mr Tracey then made the disciplinary findings that seven allegations against the Appellant could be substantiated. The Appellant was given two opportunities to show cause on the proposed disciplinary action of a disciplinary declaration.[7] The Appellant's representatives responded on behalf of the Appellant which were considered by the Respondent.
• [40] The Respondent considered the serious nature of the allegations, which were that the Appellant "failed to protect the interests and reputation of the CHQHHS and the State; preferred her personal interests over those of CHQHHS: and engaged in conduct that could have been damaging to CHQHHS's reputation and relationship with other suppliers, contractors and the general public".
• [41] While the delay in the disciplinary process was unfortunate, the Respondent submitted that it was the result of human resourcing difficulties. While this is not ideal, given the serious nature of the disciplinary findings I do not consider that the delay was disproportionately unreasonable given that new staff had to familiarise themselves with the matter and evidence before the disciplinary declaration was made.
• [42] The Respondent appropriately determined that a disciplinary declaration was reasonable and proportionate given the seriousness of the conduct - which I consider to be of the utmost seriousness.

• [43] For the reasons outlined above, I find that the Decision was fair and reasonable.
• [44] I order accordingly.

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

[1] Appellant's submissions sent via email dated 21 August 2024, Attachment 1.

[2] [2024] ICQ 3.

[4] Public Sector Commission, Commission Chief Executive Guideline 01/17: Discipline, Schedule 1.

[5] Respondent's submissions filed 6 September 2024, Attachment 1.