Hornberg v State of Queensland [2025] QIRC 185 | Case summary

Queensland Industrial Relations Commission|2025-07-17|Before: Dalton J

PUBLIC SECTOR ¾ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where the Appellant subjected to disciplinary process - where allegations substantiated - where Appellant subjected to formal reprimand - where Appellant contends penalty is unfair and unreasonable - whether disciplinary decision to impose reprimand fair and reasonable - decision fair and reasonable

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Briginshaw v Briginshaw [1938] HCA 34

Carr v State of Queensland (Department of Education) [2024] QIRC 210

Coleman v State of Queensland (Department of Education) [2020] QIRC 32

Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Radanovic v State of Queensland (Department of Education) [2024] QIRC 225

Stacey v State of Queensland (Department of Education) [2024] QIRC 220

T. O'Connor, Department of Transport and Main Roads, on behalf of the Respondent

[1] Ms Nikki Hornberg is employed as a Project Costing Officer (AO3) with the Department of Transport and Main Roads ('TMR') in Warwick.

[2] In January 2024, TMR received a complaint from an employee regarding a number of her colleagues. Included in that complaint was a complaint that Miss Hornberg had made disrespectful comments about a co-worker.

[3] At some stage prior to May 2024, an independent investigation was commissioned to investigate the numerous complaints. On 1 May 2024, Miss Hornberg was interviewed in relation to the allegations pertaining to her. The investigation report was completed and supplied to TMR in July 2024. The investigation report concluded inter alia that the allegations against Miss Hornberg were capable of being substantiated.[1]

[4] TMR determined that the conduct of Miss Hornberg could amount to misconduct within the meaning of s 91 of the Public Sector Act 2022 (Qld) ('the PS Act'). In September 2024, Miss Hornberg was issued with a show cause notice inviting her to show cause why she should not be liable to disciplinary action in response to the following allegation:

It is alleged that between March and December 2023, you made disrespectful comments in the workplace about (a co-worker) ...including referring to her as "Helga" and stating "Nein, nein" or words to that effect.

[5] It is relevant to note at this juncture that the co-worker in question was a German woman who reportedly spoke with a strong German accent. It is further relevant to note that the co-worker's name is not Helga.

[6] Miss Hornberg responded to the show cause letter in October 2024. On 20 December 2024, TMR issued their decision advising Miss Hornberg that the allegation was substantiated and that she was liable to disciplinary action. Miss Hornberg did not seek to appeal that decision and as such, the substantiation of the misconduct is not matter in contest in these proceedings.[2]

[7] I would add as an aside that, even if the substantiation of the allegation were in contest in this appeal, I would not consider such a conclusion unfair or unreasonable given that Miss Hornberg admits to furtively using the name 'Helga' as a reference to the co-worker in question. In those circumstances I would consider the characterisation of such admitted conduct falls within the meaning of misconduct for the purposes of the PS Act.

[8] Following the decision of 20 December 2024, Miss Hornberg was invited to show cause why she should not be subject to the disciplinary sanction of a reprimand.

[9] Following Miss Hornberg's response in March 2025, TMR issued a decision on 11 March 2025 informing Miss Hornberg it was imposing the penalty of a reprimand ('the decision'). In addition, TMR directed that Miss Hornberg undertake some additional training.

[10] It is the penalty decision that Miss Hornberg now appeals.

[11] Before dealing with the appeal, I note that TMR contends that Miss Hornberg filed her appeal outside the statutory time limit. The alleged breach is by less than 24 hours. In the absence of any other submission or evidence I do not intend to waste scarce time and resources on such a trivial objection. While I fully appreciate that any delay can be relevant, including a very brief delay, there is a total void of demonstrable prejudice to TMR arising from this delay. The objection is purely technical and as such, I do not intend to entertain it further.

[12] Under Chapter 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act'), the role of the Commission is to review the decision appealed against.[3] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[4]

[13] An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[5] but rather, it is a review of the decision and the decision-making process.[6] The role of the Commission in such an appeal is to decide whether the decision appealed against was fair and reasonable.[7]

[14] The issue for determination in this appeal is whether the decision to impose a reprimand on Miss Hornberg was fair and reasonable.

[15] In deciding this appeal, s 562C of the IR Act provides that the Commission may:

Set the decision aside and substitute another decision; or

Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

[16] The parties filed written submissions in accordance with my directions dated 14 April 2025. I do not intend to descend into a recitation of the parties' submissions. I will make reference to the salient portions later in these reasons. However, it is necessary for me to make an observation about Ms Hornberg's submissions generally.

[17] In essence, Miss Hornberg's submission largely challenges the substantiation of the allegation. The time for that challenge has long since passed.[8] Miss Hornberg had rights of appeal in respect of the 20 December 2024 decision. To be fair to her, she was misled about her rights by TMR. TMR have imprudently purported to give legal advice to Ms Hornberg where they have stated in the 20 December 2024 decision:

If you believe that my decision to find the allegation above substantiated (disciplinary finding decision) is unfair and unreasonable, you may lodge a fair treatment appeal under the appeal provisions of section 131 of the PS Act within 21 calendar days of your receipt of this decision.

Alternatively, you may decide to wait until I have made a decision about the proposed disciplinary action and appeal both the disciplinary finding and the disciplinary action...

[18] The statement contained in the first paragraph extracted above is correct. For all of the reasons set out in Stacey v State of Queensland (Department of Education) [9] ('Stacey'), the second paragraph is wrong. TMR (and any other Departments using this template) need to cease the practice of using this template paragraph immediately.

[19] Arguably, the erroneous statement of TMR in their 20 December 2024 decision is a pre-emptive waiver of the statutory time limit that applies to that appeal. Had Miss Hornberg pressed that point it would be difficult for TMR to oppose. But, like the appellant in Stacey, Miss Hornberg expressly nominated an intention to appeal the decision received on 12 March 2025. She did not purport to exercise rights to appeal any other decision, and she cannot do so in the context of this appeal.

[20] If I am incorrect on this point, I have expressed my view about the merit of an appeal of the 20 December 2024 decision earlier in these reasons. I would not have set aside the earlier decision on the facts and submissions before me.

[21] In all of those circumstances this appeal is confined to the fairness or otherwise of the reprimand.

[22] With all due respect to Miss Hornberg, many of the submissions and grounds referred to in her Appeal Notice and her written submissions are either irrelevant or misconceived. For example, in her Appeal Notice, Miss Hornberg contends 'the decision was made on the balance of probabilities, not factual evidence'. Miss Hornberg also complains in her Appeal Notice that, during her investigation interview, 'the interviewer used persuasive and suggestive tactics'.
[23] In her written submissions Miss Hornberg contends that the evidence relied on in this matter does not meet the Briginshaw[10] standard.

[24] The evidence supplied with the submissions filed by Miss Hornberg on 12 May 2025 (including transcripts of interviews taken during the investigation) comprehensively demonstrates that each of these grounds is fundamentally misconceived. I do not intend to deal with them further. Suffice to say that, despite some flaws in the investigation process, there was more than adequate evidence of the impugned conduct. This included Miss Hornberg's own admission. The transcripts of interview reveal no impropriety on the part of the interviewer. It is apparent that Miss Hornberg misunderstands the concept of 'balance of probabilities' and the Briginshaw standard.

[25] Of pertinence in the grounds stated in the Appeal Notice, Ms Hornberg contends that her conduct ought to have been dealt with as a performance issue at a local level in accordance with the relevant discretion under the Discipline Directive 05/23 instead of as a disciplinary issue. I will address this contention later in these reasons.

[26] TMR unsurprisingly relies on the facts established by the investigation and otherwise contends that the sanction was available on the facts established through the disciplinary process.

[27] The substantiated allegation is said to contravene Clause 1.5 of the Code of Conduct for the Queensland Public Service ('the Code'). In particular I note that the Code requires Ms Hornberg to 'treat co-workers with courtesy and respect'.[11]

[28] With respect to the allegation that Miss Hornberg used the phrase 'Nein, nein' I am not entirely convinced that the evidence supporting that part of the findings was particularly strong. But, as I have already noted, Miss Hornberg did not exercise her right to appeal that finding. In any event, for the reasons that follow, the admission of the use of the name 'Helga' when referring to the co-worker in question is enough, of itself, to justify the sanction imposed.

[29] Ms Hornberg has conceded that she used the name 'Helga' in reference to her female German co-worker. She has further conceded that she did not use that name when addressing or in the presence of the co-worker in question. To put it in lay terms, she used the name 'Helga' 'behind the co-workers back'.

[30] Additionally, a number of witnesses interviewed during the investigation confirmed that Miss Hornberg had a clash with the co-worker in question over an entry in a time sheet, and that thereafter, Ms Hornberg appeared to treat the co-worker in question in a rude or abrupt manner. There was ample evidence that Ms Hornberg could be difficult to work with, and that she appeared to have a difficult relationship with the co-worker in question.

[31] To be fair to Ms Hornberg, it ought to be noted that other witnesses considered the co-worker in question to also be abrupt in her communication style. Additionally, a concerning number of the witnesses interviewed did not consider Miss Hornberg using the name 'Helga' as a reference to her co-worker to be offensive. These witnesses included a manager.

[32] While these witness accounts might point to a permissive attitude with respect to such conduct, that is most likely a reflection of the ineptitude of managers who were aware of the conduct and failed to manage it.

[33] But even taking into account a permissive attitude or management ineptitude, it is plain from the evidence (including Ms Hornberg's own concessions) that she was using the name 'Helga' discourteously and disrespectfully. So much is apparent from the fact that she did not use it when addressing the co-worker in question. Nicknames used in private are rarely compliments, and Miss Hornberg should not need a manager to tell her to refrain from such conduct.

[34] While all of these observations are relevant to the substantiation of the allegation, they are equally relevant in addressing Miss Hornberg's contention that the matter might more fairly have been dealt with as a performance issue at a local level. This contention reveals a troubling lack of insight by Miss Hornberg into the objective seriousness of her conduct.

[35] While I have concluded that Miss Hornberg has used the name 'Helga' discourteously and disrespectfully, I am not entirely certain her intention was malicious. In those circumstances I can appreciate why Miss Hornberg, considering her conduct through the lens of her own subjective intentions, struggles to appreciate why TMR have dealt with this matter with disciplinary action. But I also consider that Miss Hornberg is equally impeded by that lack of insight from understanding the potential consequences of her admitted conduct.

[36] There can be no doubt the choice of the name 'Helga' is a form of racial stereotyping. The deliberate choice of a name that has such evident Germanic roots, when used furtively with other co-workers and in the context of a somewhat fraught workplace relationship, unnecessarily draws attention to the race of the co-worker in question in a mocking way. While Miss Hornberg insists this was not the case, her real intention is most plainly revealed by the fact that she used the name to refer to her co-worker, but not when addressing her.

[37] The willingness to use racial stereotyping as a form of derision, however superficially, gives rise to the possibility of significant risk to TMR. While the co-worker in question has either not been informed about this conduct, or has not sought to action it, it is conduct that might easily give rise to a complaint under the Anti-Discrimination Act 1991 (Qld) or an injury compensable under the Workers Compensation and Rehabilitation Act 2003 (Qld). Quite apart from the possible injury or hurt and humiliation that might be suffered by the relevant individual, a claim under either of these Acts could expose TMR to significant vicarious liability claim and costs associated with addressing such claims.

[38] The fact that none of these things has occurred does nothing to lessen the seriousness of the fact that Miss Hornberg has conducted herself in a way that creates that risk. It is that conduct that requires sanction.

[39] While such conduct could have been dealt as a performance issue at a local level, the decision to treat the matter as misconduct was a discretion open to TMR. The term 'misconduct' is defined in the PS Act as:[12]

Inappropriate or improper conduct in an official capacity.

[40] Additionally, the PS Act includes the following example of misconduct:

Victimising another public sector employee in the course of the other employees employment in the public sector.

[41] While the term 'victimising' is not defined in the PS Act, its ordinary meaning would include ridiculing another employee. That has certainly occurred in my view.

[42] In Coleman v State of Queensland (Department of Education)[13] Deputy President Merrell considered the definition of misconduct and concluded that 'misconduct' contemplates:

...a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.

[43] Miss Hornberg has certainly departed from the accepted standard prescribed in the Code. She has certainly done so deliberately. In those circumstances I have no difficulty with the characterisation of her actions as 'misconduct' within the meaning of s 91 of the PS Act.

[44] The discretion to address this conduct through a disciplinary process was always available to TMR. The fact that the Discipline Directive might recommend otherwise does not undermine that discretion and to whatever extent it might limit it, I consider there is nothing unfair or unreasonable about implementing a disciplinary process in the circumstances of this case. As I have previously observed, a failure to adhere to the prescribed procedures of a Directive is not, of itself, sufficient to render a decision unfair and unreasonable.[14]

[45] In her submission before the Commission during the hearing of this matter, Miss Hornberg also took issue with TMR's reference to her 'risk of reoffending'. I consider that, to the extent that such a risk was relied on by the decision maker to impose the sanction of a reprimand, it was more than adequately justified by Miss Hornberg's demonstrated lack of insight and contrition for her admitted conduct. Even more concerning is that having had the benefit of the Commission's views on this appeal comprehensively presented to her during the hearing, Ms Hornberg still pressed for this determination.

[46] While Miss Hornberg has every right to a determination of her appeal in this manner, her ongoing insistence that the sanction is unfair and unreasonable demonstrates that she continues to lack critical insight into the objective seriousness of her conduct.

[47] For completeness I note that Miss Hornberg's contentions included a submission that she was denied procedural fairness as a consequence of receiving only a redacted copy of the investigation report. I do not accept this for a number of reasons. Firstly, the report incorporated multiple complaints against multiple personnel. The extensive redactions were necessary to ensure that Miss Hornberg was not allowed access to private matters pertaining to other employees. Secondly, in light of Miss Hornberg's admissions about her conduct, the contents of the investigation report (redacted or not) were entirely unnecessary to reasonably arrive at the conclusion of misconduct.

[48] In all of the circumstances I consider that the decision under review is fair and reasonable.

[49] In the circumstances I make the following Order:

[1] The report is Attachment 2 to the written submissions filed by Ms Hornberg on 12 May 2025. At page three of the attachment there is a summary of the diverse complaints against numerous personnel, including Ms Hornberg.

[2] Radanovic v State of Queensland (Department of Education) [2024] QIRC 225 at [25]- [28] ('Radanovic'). See also Carr v State of Queensland (Department of Education) [2024] QIRC 210; Stacey v State of Queensland (Department of Education) [2024] QIRC 220.

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[9] [2024] QIRC 220 [10] - [17].

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336.

[14] Ehrlich v State of Queensland (Queensland Corrective Services) [2024] QIRC 209 at [23].

Compensation and Rehabilitation Act 2003

Hornberg v State of Queensland

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