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[2026] QIRC 37
General information, not legal advice.
Queensland Industrial Relations Commission
2026-02-12
Dalton J
Original judgment source is linked above.
PUBLIC SECTOR APPEAL - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - appeal against disciplinary finding - where the appellant was employed as an enrolled nurse - where conduct allegation substantiated - where the appellant appeals the disciplinary finding decision - whether the disciplinary finding decision was fair and reasonable.
Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564
Public Sector Act 2022 (Qld) s 90, s 91, s 129, s 131
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521
Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)
Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170
State of Queensland (Queensland Health) v Hume [2024] ICQ 3
[1] Mr Steven Hill (the Appellant) is employed as an Enrolled Nurse at Redlands Residential Care Facility (RRC), Community and Oral Health Services (COHS), Metro South Health (MSH) on a permanent part-time basis. Mr Hill has been employed by Queensland Health, State of Queensland (the Respondent) since 4 December 2023.
[2] On 4 March 2024, Mr Hill was directed to leave the workplace.[1] He was suspended from duty a few days later.
[3] Mr Hill was advised by Ms Lesley English (Executive Director, Community and Oral Health Services, Metro South Health; 'the Delegate') of the workplace conduct allegations against him in the First Show Cause Notice (NTSC1), received on 3 October 2024. He responded to the NTSC1 on 31 October 2024.
[4] On 10 January 2025, Mr Hill received correspondence from the Delegate substantiating two allegations (NTSC2).[2] The termination of Mr Hill's employment was proposed.
[5] Mr Hill filed this appeal against the disciplinary finding decision to substantiate the following allegation against him:
On an unknown date, you engaged in inappropriate conduct of a sexual nature involving Resident...[X].
[6] Mr Hill does not appeal against the determination to substantiate the second allegation against him. The second allegation is not subject of this Decision.
[7] Section 131 of the Public Sector Act 2022 (Qld) (the PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act provides that an appeal may be made against "a fair treatment decision". Where a fair treatment decision is defined to be:
... a decision a public sector employee believes is unfair and unreasonable.[3]
[8] Mr Hill has been an employee of the Respondent at all times relevant to this appeal.
[9] I am satisfied that the fair treatment decision can be appealed.
[10] Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
[11] The Delegate's decision letter was dated 10 January 2025 and was received by Mr Hill that same day. This appeal was filed on 31 January 2025.
[12] I am satisfied that the Appeal Notice was filed within the required timeframe of 21 days.
[13] Section 562B(3) of the IR Act provides that the purpose of a public sector appeal is "to decide whether the decision appealed against was fair and reasonable."[4]
[14] A public sector appeal under the IR Act is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision-making process associated therewith.
[15] Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
[16] Pursuant to section 451(1) of the IR Act, this matter has been decided without a hearing.
[17] In the recent Industrial Court of Queensland decision in State of Queensland (Queensland Health) v Hume,[6] Deputy President Merrell held that the words 'fair and reasonable' are to be given their ordinary meaning, in the determination of public sector appeals.
[18] In State of Queensland (Queensland Health) v Hume,[7] 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.
[19] The Delegate's disciplinary finding decision was made on the 'balance of probabilities'.[8] The wording of Briginshaw v Briginshaw ('Briginshaw')[9] is incorporated into the Directive 05/23: Discipline (the Discipline Directive),[10] and there is no contention that said principle does not apply in this instance.
[20] The Discipline Directive prescribes that (emphasis added):
...For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
[21] In civil matters, the standard of proof is the balance of probabilities.[12] The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:
... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...
(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[13]
[22] It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur. It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'. Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence. In Chamberlain v The Queen (No 2) [14] Gibbs CJ and Mason J provided:
When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged ...[15]
[23] The question is then whether it was open for the Delegate to be "reasonably satisfied"[16] of the disciplinary finding with respect to Allegation One. That question informs whether the decision was fair and reasonable. It is not a hearing de novo.
[24] The Delegate advised Mr Hill that he had the right to appeal to the Queensland Industrial Relations Commission (QIRC), if he believed the Disciplinary Finding Decision was not fair or reasonable.[17]
[25] Mr Hill exercised his right to appeal the "fair treatment decision"[18] in the QIRC.
[26] Shortly after Mr Hill filed this Appeal on 31 January 2025, I issued a Directions Order that stayed the Disciplinary Finding Decision until the determination of this appeal or further order of the Commission.[19]
What decisions can the Industrial Commissioner make?
[27] In deciding this appeal, section 562C of the IR Act provides that the Industrial Commissioner may:
[28] The parties filed written submissions in accordance with the Directions Order issued.
Was the Delegate's Disciplinary Finding Decision fair and reasonable?
[30] For the reasons explained below, with respect to Allegation One:
a) I find that it was fair and reasonable for the Delegate to determine that the allegation is 'substantiated'.
b) I find that it was fair and reasonable for the Delegate to decide that grounds for discipline arose pursuant to section 91(b) of the PS Act, specifically that Mr Hill was "guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the Act".[20]
[31] I have detailed my consideration of each of these elements below.
[32] Mr Hill strenuously denied the allegation of inappropriate conduct of a sexual nature.[21]
[33] Mr Hill submitted the following appeal grounds, with respect to Allegation One:
[34] With respect to Allegation One, Mr Hill submitted that:
Inconsistent reported disclosures by the Resident
The Appellant asserted that constituted a "denial rather than an affirmation that inappropriate sexual conduct occurred."[33]
The Appellant submitted the above were inconsistencies in how the Resident stated she was touched.
No direct evidence and corroborating evidence available
Inconclusive evidence given excessive weight - Description of Mr Hill
Time it took to present the Appellant with the allegation
[36] The Respondent's submissions attached emails containing Disclosers One and Two accounts of their discussions with the Resident.
[37] The first account recorded that:[60]
[38] The second account recorded that:[61]
[39] The following chronology has been drawn from the submissions and NTSC2 correspondence:
Mr Hill employed by Queensland Health as an Enrolled Nurse.[62]
Mr Hill provided "documented"[63] hygiene care to the Resident (shower, hair wash, massage and a clothing change).
Mr Hill provided "documented"[64] hygiene care to the Resident (sponge bath, moisturiser application and a clothing change).
Shortly after, Discloser One reported that the Resident: "appeared distressed indicated a wish to no longer be dressed by men;" described him as "creepy;" said he "always wants to cuddle;" and that he told her that "her husband would be ok with him touching her."[65]
The Resident told Discloser One that the man she was concerned about was "the big one" and that "he touches my nipples."[66]
When Discloser Two discussed the Resident's concerns with her, the Resident again identified the man "had been making her uncomfortable and that he touches 'her boobs' and was observed by clinical staff to be upset by recounting this..."[67]
Discloser One (Assistant in Nursing) raised concerns that the male nurse had engaged in inappropriate conduct of a sexual nature with the Resident.[68]
Mr Hill was directed to leave the workplace.[69]
The Resident "described [the male nurse] to the QPS as 'horrible' and 'creepy' and said that he touched her on the 'boobs and right nipple' on purpose."[70]
Notification that Mr Hill's conduct would be investigated by the Office of the Health Ombudsman.[72]
Mr Hill issued with first Show Cause Notice.[73]
QNMU responded to the first Show Cause Notice, on behalf of Mr Hill.[74]
The Delegate advised Mr Hill that both allegations were substantiated and the disciplinary penalty of termination of employment was proposed.[75]
On an unknown date, you engaged in inappropriate conduct of a sexual nature involving Resident...[X].
[40] I have reviewed the decision arrived at, and the process undertaken, by the Delegate in finding that Allegation One is "substantiated."
[41] I confirm the Delegate's decision was fair and reasonable, so will not disturb it.
[42] The Delegate's determination was made "on the balance of probabilities."[76] That is the standard of proof required. While the allegation is very serious, as is the "gravity of the consequences flowing from"[77] that finding (specifically, the proposed termination of employment), I confirm the Delegate could be reasonably satisfied that Mr Hill engaged in inappropriate conduct of a sexual nature involving the Resident.
[43] There were a number of relevant considerations that have persuaded me that is the correct course. My reasons follow.
[44] While there were no eye-witnesses to the alleged conduct, that is not unusual for complaints of this type.
[45] Further, the conduct was said to have occurred in private, in the course of Mr Hill undertaking personal care duties in the Resident's room. Given the combined circumstances of location and contact, it would be highly unlikely that there would be any passers-by that may have been an eye-witness to the conduct. The absence then of an eye-witness does not count against a finding that the conduct complained of occurred as the Resident alleged.
[46] Neither the Discipline Directive or Briginshaw test require an eye-witness to support a Complainant's account of events.
[47] In my view, the Resident's recount of the conduct to Disclosers One and Two (and then to QPS) was consistent, helpfully proximate to the alleged conduct occurring, and supported by an observed change in her behaviour. The Resident also consistently provided a clear physical description of the male staff member, that was sufficient to identify the person in question. Taken in combination with the other circumstances of this case, a finding that the allegation is substantiated on the balance of probabilities is fair and reasonable.
[48] While the Appellant has argued that the extent of the Resident's Dementia diagnosis, her remarks about future plans with "Jeff", her ambiguous identification of Mr Hill as the subject of the allegation, and her first comment to a Discloser on 2 February 2024 should have led the Delegate to conclude the allegation was not to be substantiated - I instead find the Resident's account of what occurred to her, and by whom, credible and so ought to be believed.
[49] With respect to the Disclosers' source emails dated 4 March 2024, the Resident is reported to have described being touched on "her nipples" and "her boobs" by a male who was "creepy" and "always wanted to cuddle."[78] Those comments were recorded as being made by the Resident on 3 and 4 March 2024, proximate to the Disclosers' email reports. The contemporaneous accounts the Disclosers have provided are important here.
[50] Documentation showed that Mr Hill provided personal care to the Resident on 17 February 2024 and 2 March 2024. It is significant that the Resident started to make statements about she did not like being attended to by men less than four hours after Mr Hill had provided personal care to the Resident on 2 March 2024. Further, the Resident noted the male staff member she found "creepy"[79] was not at the facility, when Mr Hill's rostered shift had concluded some time earlier.
[51] Relevantly, the Discloser's email dated 4 March 2024 described a conversation between three staff (including the Discloser and Mr Hill) regarding the Resident's request for Mr Hill to change her out of a favourite top. The Discloser considered that was "very odd as [the Resident] loves her cat tops."[80] It appears to me most probable that Mr Hill changed the Resident's top in order to engineer an opportunity to engage in the alleged conduct, rather that doing so at the Resident's request.
[52] Only a few days later, the Resident told the QPS that the male nurse touched her boobs and right nipple and tried to kiss her. In my view, the Resident's accounts to the Disclosers and QPS provide a consistent account of the repeated and unwanted contact of a sexual nature by that particular person meeting Mr Hill's description.
[53] I note the Respondent's submission that the QPS decided not to proceed with criminal proceedings against Mr Hill because the Resident was unable to articulate to a criminal standard what had occurred - not because there was "insufficient evidence" as the Appellant had first submitted.[81] The Respondent's correction was not disputed in the Appellant's Reply Submissions.
[54] With respect to the matter of the Resident's change in behaviour, Mr Hill submitted that the Respondent's determination that the Resident's "sudden change in behaviour", including becoming "visibly upset when discussing her experience with the male nurse identified, expressing fear and relief when the male nurse was no longer in the facility and requesting that no men dress her" as "a likely sign of trauma resulting from an incident", fell short of the required standard of proof in the Briginshaw test. The Appellant submitted that patients with dementia may "become upset and have heightened emotions that are not grounded in reality."[82]
[55] The Respondent's submissions readily acknowledge that "some individuals suffering from dementia experience suspicion and delusion."[83] However, the Delegate had explained in the NTSC2 correspondence that the Resident had lived at the facility since early 2022 and her request for "female only staff" was made and documented on 2 March 2024 (less than three months after Mr Hill's commencement and on the date her provided personal care to her). The Respondent submitted that the Resident had made no other complaints of a similar nature in her time at the facility, either before or since.
[56] In the NTSC2 correspondence, I note the Delegate had reasoned that "Behavioural signs displayed by residents with dementia should also be carefully considered when assessing the possibility of sexual abuse, particularly given their ability to verbally articulate experiences can be restricted." That is a pertinent point. The Delegate has not relied exclusively on the Resident's observed change of behaviour to arrive at her decision - it is but one aspect of the particular circumstances of the case that she has carefully weighed in finding the allegation to be substantiated.
[57] It is also noteworthy that the Delegate was well-qualified and experienced to assess the material before her to make such judgement. As the Respondent submitted, the Delegate "holds a Master of Gerontology and has worked in the health and aged care sectors since 1993 as both a practising physiotherapist and as a manager. Based on her review[84] of the materials, including Resident's...clinical evaluations, the Decision Maker was satisfied that [the] Resident's...account was sufficiently credible and coherent to be relied upon."[85]
[58] While the Respondent's submissions added that "the treating multi-disciplinary team, some of whom had an ongoing care relationship with Resident...and understood her level of cognitive impairment and mental state, did not assess that her impairment was so significant that she ought not be believed,"[86] I consider this to be supplementary to the Delegate's own review of all documentation available to her. The Appellant's representatives have (astutely) advanced a possible procedural problem here, by reference to clause 9.3(d) of the Discipline Directive, in that the assorted opinions of other health practitioners were not presented to Mr Hill within the NTSC1 correspondence outlining the allegations. However, my review of the NTSC1 correspondence confirmed that the requirements of the Discipline Directive were met because Mr Hill was provided with "a copy of all evidence relevant to the facts considered...for the allegation." The NTSC1 correspondence details the particulars of the allegation and referred to the attachments of numerous source documents relevant to those facts as outlined. In my view, "evidence" is different from opinions - and it is further unclear as to whether any such opinions were offered or sought before the Delegate issued the NTSC2 correspondence or at the time the Respondent prepared its submissions. Even if I am wrong on that point, and the assorted opinions of "the treating multi-disciplinary team" were considered to be "evidence" that was before the Delegate but not provided to Mr Hill, I believe there was no inherent unfairness or unreasonableness because of the extent of the particulars and supporting documentation provided an abundance of material to enable Mr Hill to fully understand the allegation put and respond to it. Given all of the other considerations the Delegate has weighed in finding Allegation One to be substantiated, I would not disturb her determination on the basis of clause 9.3(d) of the Discipline Directive alone in this case.
[59] With respect to the Resident's dementia diagnosis, the Appellant further argued that she may be "mistaken or confused as to what she believes occurred."[87] The Appellant's submissions noted that the NTSC1 correspondence stated that the Resident has "a Psychogeriatric Assessment Score of sixteen (16) indicating a moderate impairment. Resident...is not considered to have severe dementia."[88] This point was not raised in the Appellant's response to NTSC1 dated 31 October 2024, though was advanced in the Reasons for Appeal filed 31 January 2025. Firstly, I note the Psychogeriatric Assessment Score sets out ranges describing the severity of cognitive impairment to include: "10-15 = moderate, and 16-21 = severe." The Appellant correctly noted that the Resident's score of 16 equates to "severe" cognitive impairment, though it is self-evidently at the lowest point in that range. The Respondent submissions stated that the scale provides an "indication of the progression of dementia, compared to a median range found in the community"[89] and that the score of a dementia patient "may be influenced by external factors other than psychogeriatric disorders such as poor education, occupation, emotional stress and medication."[90] The Appellant's submissions include reference to a journal article describing the use of the score to be "a tool for cognitive assessment for the purposes of aged care funding...".[91] For those reasons, the Resident's score is but one factor to consider in weighing whether or not her evidence is sufficient and reliable - and it ought not be rejected due to her score on the lowest point of "severe" range, in my view.
[60] The next issue to consider is the Appellant's contention that the Resident's comment (at approximately 4:30 pm on 2 March 2024) constituted a denial, rather than complaint, that inappropriate conduct had occurred, when she said that "If I let him, he would, I tell him I have a husband". I consider it pertinent though that the Resident further elaborated that same day "after dinner" that "he tells me that Jeff's ok with it." That begs the question of what was the "it" that had occurred? According to the Discloser's email dated 4 March 2024, the Resident also appeared sad when, during the same exchange, she further told the Discloser that he "always wants to cuddle", "he's creepy" and that she no longer wanted men dressing her. As the Delegate reasoned in the NTSC2 correspondence, while the Resident initially stated "If I let him, he would, I tell him I have a husband", "she then proceeded to provide a consistent recollection regarding the location in which the individual touched her, their appearance and the way in which they made her feel on three (3) separate dates. By [the] Resident...indicating on 2 March 2024 that if she let the male touch her, he would, this also suggests that Resident...is confident about how this individual would react based on a past experience." I agree that is a sensible conclusion to draw. Taken together then with the Resident's following consistent accounts of being touched inappropriately on the boobs and nipples, the remark does not negate the weight of other credible evidence in support of the Delegate's finding to substantiate the allegation.
[61] With respect to whether or not the Resident's description of Mr Hill was sufficient to identify him as the perpetrator, I observe that she consistently described the "uniquely identifiable" physical characteristics of the "male nurse" as having a large build, blonde hair and wearing a particular shirt colour. As the Respondent explained, Mr Hill was "the only staff member to closely match this description" because the other two male enrolled nurses that worked in the same location in the relevant period were "of different ethnicities with dissimilar personal appearances."[92] When taken together with the Resident's comments to a Discloser after dinner on 2 March 2024 that "I'm glad he isn't here, he's creepy" (at a time when Mr Hill's shift had ended and he was no longer at the facility), and to the QPS on 7 March 2024 that he was "not here now" (as he was directed to leave the workplace on 4 March 2024), I accept the Delegate could be satisfied that the male nurse in question was Mr Hill. In my view, the Resident's inability to remember Mr Hill's name does not disturb that, given he had only been working in the facility for a few months.
[62] The Appellant further argued the Respondent relied on a "weak inference" with respect to the Resident's account of the timing of the alleged conduct, in her statement to QPS.[93] The Respondent had reasoned that the Resident "reported the incident occurred in her room...[and] estimated it was approximately 'a month ago'...[Mr Hill] provided care to [the] Resident...on 17 February 2024, which was twenty...days prior to [the] Resident's...discussion with QPS..."[94] I do not consider that to be a weak inference to timeframes but rather quite a solid recollection, in the particular circumstances of this case.
[63] With respect to the time taken to present Mr Hill with the allegation for his response, the Appellant submitted that the delay of approximately 6 months (the period of time between the statements from Disclosers One and Two and the QPS interview material all being available to the Respondent - and the allegations being provided to Mr Hill in the NTSC1 correspondence) resulted in Mr Hill's "capacity to recall specifics, or identify and call on witnesses...[being] severely curtailed."[95] I accept the Respondent's submission that the commencement of the disciplinary process was delayed until QPS issued clearance for the matter to be dealt with by the employer. That is not unusual. I would also note that the allegation particulars were well set out in the NSC1 correspondence, with numerous supporting documents and relevant statements attached. That detailed material was sufficient for Mr Hill to well understand the allegation against him and indeed he was able to provide a written response to it, with representative assistance, on 31 October 2024. In my view, the six month delay was not unreasonable whilst the employer waited for QPS clearance to act on such a serious allegation, in all of the particular circumstances above.
[64] Finally, I will address the Appellant's submission that "the Respondent has not been able to demonstrate why they took some statements from [the Resident] to be true (the allegations) and not others. The decision maker had a positive obligation to seek out all relevant information such as the...statements [the Resident] made about Jeff and whether [the Resident] is often stating things that are not factual."[96] This is in relation to a Discloser's email (dated 4 March 2024) describing the beginning of a conversation with the Resident on 2 March 2024 at 4:30 pm. That email was provided as an attachment to the NTSC1 correspondence (dated 3 October 2024) presumably because it went on to set out what the Resident said to the Discloser about the conduct complained of that was subject of the allegation against Mr Hill. The statement referring to future plans with Jeff and a cat was not commented upon at all in Mr Hill's response, sent by his representative on 31 October 2024. Nor did that particular statement appear in the Delegate's reasons for substantiating the allegation in the NTSC2 correspondence. The most probable reason for its omission in both those correspondence was because it was not considered to be "relevant information" to the allegation of inappropriate conduct by Mr Hill. That is also my view of the matter.
[65] However, if I am wrong on that point, and the Resident's comment about future plans with Jeff and a cat may be considered to be relevant to this case, that does not mean that the Resident "is often[97] stating things that are not factual,"[98] as submitted by the Appellant. It may be that the Resident made one remark that is not factual (something that any person may do, deliberately or mistakenly - and does not mean that all they say ought be otherwise disregarded because of it). Another possibility is that the comment may actually have been made by Jeff (either sincerely - or simply to make her happy at the prospect of having a cat). In any case, it cannot be assumed that the Resident's remark is unlikely to be true solely on the grounds that Jeff is not her husband.
[66] For those reasons, my decision does not turn on the passing curiosity of the Resident's remark about future plans with Jeff and a cat. In my view, that is not relevant information that the Delegate ought to have interrogated, given the weight of all the other evidence and particular circumstances persuasive of a finding that it was more probable than not that the conduct subject of Allegation One occurred.
Could the Delegate be 'reasonably satisfied' that discipline grounds have been established?
[67] Section 91 of the PS Act prescribes that a chief executive "may discipline the employee if the chief executive is reasonably satisfied the employee has" done the "act or omission" constituting the disciplinary ground.
[68] In this appeal, Mr Hill challenges the disciplinary finding made by the Respondent, with respect to Allegation One. A disciplinary finding means a finding that a disciplinary ground exists.[99]
[69] The disciplinary grounds are set out in section 91(1)(a)-(h) of the PS Act. That includes where the employee has "been guilty of misconduct."[100]
[70] In this case, the "decision maker was reasonably satisfied that the conduct more likely occurred than not occurred and that the conduct was a significant breach of reasonably expected standards."[101]
[71] For the conduct subject of Allegation One, that I have confirmed to be 'substantiated', I support the Delegate's determination that Mr Hill's conduct constitutes "misconduct," pursuant to section 91(1)(b) of the PS Act.
[72] In my view, both the Delegate's disciplinary finding decision, and identification of the grounds for discipline, were fair and reasonable.
[73] The release of this Decision lifts the stay of the Delegate's disciplinary finding decision. That is now confirmed.
Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, I will confirm the decision appealed against.
[1] Appeal Notice filed 31 January 2025, Reasons for Appeal, [4].
[2] Correspondence from Ms Lesley English (Executive Director, Community and Oral Health Services, MSH) to Mr Steven Hill dated 10 January 2025.
[3] Public Sector Act 2022 (Qld) s 129.
[5] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[8] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.
[11] Directive 05/23: Discipline, 'Definitions'.
[12] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.
[13] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 363.
[15] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536.
[17] Correspondence from Ms Lesley English (Executive Director, Community and Oral Health Services, MSH) to Mr Steven Hill dated 10 January 2025, pg 7.
[18] Appeal Notice filed 31 January 2025, pg 2.
[19] Directions Order issued 4 February 2025, 1.
[20] Correspondence from Ms Lesley English (Executive Director, Community and Oral Health Services, MSH) to Mr Steven Hill dated 10 January 2025.
[21] Appeal Notice filed 31 January 2025, [12].
[22] Appeal Notice filed 31 January 2025, [13].
[23] Appeal Notice filed 31 January 2025, [13].
[24] Appeal Notice filed 31 January 2025, [14].
[25] Appellant's Reply Submissions filed 26 February 2025, [11]-[13].
[26] Appellant's Reply Submissions filed 26 February 2025, [13].
[27] Appeal Notice filed 31 January 2025, [17].
[28] Appellant's Reply Submissions filed 26 February 2025, [14].
[29] Appeal Notice filed 31 January 2025, [16].
[30] Appellant's Reply Submissions filed 26 February 2025, [14]-[15].
[31] Appeal Notice filed 31 January 2025, [18].
[32] Appeal Notice filed 31 January 2025, [23] - I note that while the February date was referenced in the Schedule A Reasons for Appeal, attached to the Appeal Notice - and also contained in Mr Hill's response to the NTSC1 - the Allegation One particulars provided to Mr Hill in the NTSC1, repeated again in the Decision Letter dated 10 January 2025, were dates in March.
[33] Appeal Notice filed 31 January 2025, [23].
[34] Appeal Notice filed 31 January 2025, 'Reasons for Appeal', [23, ii] contained the date "3 February 2024". The date recorded in the Decision Letter was instead "3 March 2024". I accept the date was 3 March 2024. I note that while the February date was referenced in the Schedule A Reasons for Appeal, attached to the Appeal Notice - and also contained in Mr Hill's response to the NTSC1 - the Allegation One particulars provided to Mr Hill in the NTSC1, repeated again in the Decision Letter dated 10 January 2025, clearly stated the March (not February) date.
[35] Appeal Notice filed 31 January 2025, 'Reasons for Appeal', [23, iii] contained the date "4 February 2024". The date recorded in the Decision Letter was instead "4 March 2024". I accept the date was 4 March 2024. I note that while the February date was referenced in the Schedule A Reasons for Appeal, attached to the Appeal Notice - and also contained in Mr Hill's response to the NTSC1 - the Allegation One particulars provided to Mr Hill in the NTSC1, repeated again in the Decision Letter dated 10 January 2025, clearly stated the March (not February) date.
[36] Appeal Notice filed 31 January 2025, [27].
[37] Appeal Notice filed 31 January 2025, [28].
[38] Appeal Notice filed 31 January 2025, [31].
[39] Appeal Notice filed 31 January 2025, [33].
[40] Appeal Notice filed 31 January 2025, [17].
[41] Appeal Notice filed 31 January 2025, [37].
[42] Appeal Notice filed 31 January 2025, [41].
[43] Appeal Notice filed 31 January 2025, [40].
[44] Respondent's submissions filed 19 February 2025, [21].
[45] Respondent's submissions filed 19 February 2025, [22].
[46] Respondent's submissions filed 19 February 2025, [28].
[47] Respondent's submissions filed 19 February 2025, [29].
[48] Respondent's submissions filed 19 February 2025, [30].
[49] Respondent's submissions filed 19 February 2025, [31].
[50] Respondent's submissions filed 19 February 2025, [32].
[51] Respondent's submissions filed 19 February 2025, [33].
[52] Respondent's submissions filed 19 February 2025, [34].
[53] Respondent's submissions filed 19 February 2025, [35].
[54] Respondent's submissions filed 19 February 2025, [36].
[55] Respondent's submissions filed 19 February 2025, [36].
[56] Respondent's submissions filed 19 February 2025, [37].
[57] Respondent's submissions filed 19 February 2025, [38].
[58] Respondent's submissions filed 19 February 2025, [39].
[59] Respondent's submissions filed 19 February 2025, [40].
[60] Emails dated 4 March 2024 and 28 August 2024.
[62] Respondent's submissions filed 19 February 2025, [3].
[63] NTSC2 correspondence dated 10 January 2025, page 2.
[64] Respondent's submissions filed 19 February 2025, [24].
[65] Respondent's submissions filed 19 February 2025, [24].
[66] Respondent's submissions filed 19 February 2025, [25].
[67] Respondent's submissions filed 19 February 2025, [26].
[68] Respondent's submissions filed 19 February 2025, [6].
[69] Appeal Notice filed 31 January 2025, Reasons for Appeal, [4].
[70] Respondent's submissions filed 19 February 2025, [27].
[71] Respondent's submissions filed 19 February 2025, [7].
[72] Respondent's submissions filed 19 February 2025, [8].
[73] Respondent's submissions filed 19 February 2025, [9].
[74] Respondent's submissions filed 19 February 2025, [10].
[75] Respondent's submissions filed 19 February 2025, [11].
[76] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.
[77] Directive 05/23: Discipline, 'Definitions'.
[78] Emails dated 4 March 2024 and 28 August 2024.
[79] Emails dated 4 March 2024 and 28 August 2024.
[81] Appeal Notice filed 31 January 2025, [29].
[82] Appeal Notice filed 31 January 2025, [36].
[83] Respondent's submissions filed 19 February 2025, [39].
[85] Respondent's submissions filed 19 February 2025, [38].
[86] Respondent's submissions filed 19 February 2025, [38].
[87] Appeal Notice filed 31 January 2025, [18].
[88] Appeal Notice filed 31 January 2025, [19].
[89] Respondent's submissions filed 19 February 2025, [37].
[90] Respondent's submissions filed 19 February 2025, [37].
[91] Appeal Notice filed 31 January 2025, [20].
[92] Respondent's submissions filed 19 February 2025, [30].
[93] Appeal Notice filed 31 January 2025, [37]-[38].
[94] Appeal Notice filed 31 January 2025, [37].
[95] Appeal Notice filed 31 January 2025, [41].
[96] Appellant's Reply Submissions filed 26 February 2025, [14]-[15].
[98] Appellant's Reply Submissions filed 26 February 2025, [14]-[15].
[99] Public Sector Act 2022 (Qld) s 90.
[101] Respondent's submissions filed 19 February 2025, [42].
Hill
State of Queensland
(1938) 60 CLR 336
(1984) 153 CLR 521
(1992) 67 ALJR 170