Mathers v State of Queensland [2024] QIRC 282 | Case summary

Queensland Industrial Relations Commission|2024-12-02|Before: Dalton J

PUBLIC SECTOR ¾ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY - where Appellant employed as Cook Supervisor of the Respondent - where Appellant charged with serious criminal offences in 2021 - where Appellant committed for trial before the District Court in 2022 - where Appellant acquitted of the charges - where Respondent had a policy obligating employees to notify it if they have been charged or convicted of an indictable offence - where the Appellant did not inform the Respondent of the charges - where the Appellant subjected to disciplinary process - where allegations substantiated - where Appellant subject to formal reprimand - where Appellant contends he was not aware of the policy - where Appellant relied on legal advice that he was under no obligation to disclose the charges to the Respondent - whether disciplinary decision to impose reprimand fair and reasonable - decision fair and reasonable

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

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

A. Punch, Metro North Hospital and Health Service, on behalf of the Respondent

[1] Mr Brian Mathers is employed by Queensland Health ('the respondent') as a Cook Supervisor at the Redcliffe Hospital.

[2] In or about November 2021 Mr Mathers was charged with a number of serious criminal offences ('the charges'). The charges were predominately indictable offences. The charges were unrelated to his duties with the respondent.

[3] On or about February 2022 Mr Mathers appeared in the Redcliffe Magistrates Court and was committed for trial before the District Court in Brisbane. Between 8 November 2023 and 3 May 2024, Mr Mathers was either acquitted or found not guilty in relation to each charge.

The respondent had a policy ('the policy') that obliged employees to notify them if they have been charged or convicted of an indictable offence.

Mr Mathers had received Code of Conduct training as recently as June 2020. That training did not expressly identify or explain the policy but rather, directed participants to integrity related policies, including the policy.

Mr Mathers did not inform the respondent of his charges in accordance with the policy (or at all).

The respondent was first made aware of the charges when they were contacted by the Office of the Health Ombudsman in or about February 2022 at which time, when asked, Mr Mathers then disclosed them.

[5] As a consequence of his failure to notify the respondent of the charges, Mr Mathers was subject to a disciplinary process. The process centred on two allegations, namely:

that Mr Mathers had failed to inform the respondent of the charges;

that Mr Mathers had failed to inform the respondent that he had appeared in court in relation to the charges.

[6] An earlier decision of the respondent determined the allegations were substantiated. Mr Mathers did not appeal this decision.

[7] The remainder of the disciplinary process culminated in a decision dated 4 July 2024 in which it was relevantly determined that Mr Mathers should receive a formal reprimand for his conduct ('the decision').

[8] It is this decision that Mr Mathers now appeals.

[9] Under Chapter 11 of the IR Act, the role of the Commission is to review the decision appealed against.[1] The IR Act does not define the term 'review'. The term 'review' will take its meaning from the context in which it appears.[2]

[10] An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,[3] but rather, it is a review of the decision and the decision-making process.[4] The role of the Commission in such an appeal is to decide whether the decision appealed against was fair and reasonable.[5]

[11] The issue for determination in this appeal is whether the decision to impose a formal reprimand on Mr Mathers was fair and reasonable.

[12] 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.

[13] The parties were directed to file written submissions in the matter. Additionally, a short hearing was conducted on 29 November 2024. While I have read the written submissions, I do not intend to restate them in full in these reasons. The salient portions will be referred to in my consideration later in these reasons.

[14] With respect to the positions of the parties revealed by the submissions, it is sufficient to note that Mr Mathers has not disputed that existence of the policy or that he failed to comply with it. His appeal is largely one about the mitigating circumstances which, he says, negate the imposition of a penalty. Mr Mathers has consistently contended inter alia that:

He cannot be expected to be familiar with every one of the respondent's numerous policies;

He obtained legal advice about his obligations to disclose the charges at the relevant time and was advised that he did not have to.

[15] The respondents contend that, on the undisputed facts of this matter, the decision is fair and reasonable.

[16] It should be noted at the outset that I have some degree of sympathy for Mr Mathers. He was confronted with a relatively unique dilemma and no doubt wanted to protect his privacy in circumstances where he had not been convicted of the charges. He believed (apparently correctly) that he would not be convicted and, given the matters did not arise in the context of his employment, he elected to conceal them.

[17] The stigma of merely being charged with criminal offences can have lasting detrimental impact on professional and personal relationships. There is something counter-intuitive about a compulsion to disclose mere charges in those circumstances (as opposed to convictions).

[18] However, the respondent has a significant duty of care to the public it serves. While mere charges are not of themselves a basis to determine an employee's fitness to remain in the workplace, they are an indicator of an undetermined risk. The spectrum of possible risk to other employees or members of the public that is posed by an employee charged with indictable offences is broad. The risk also varies depending on the nature of the charges and the role performed by the employee charged.

[19] Among the wide range of foreseeable possibilities arising from the risk is significant harm (or worse) to co-workers, patients, or members of the public. For this reason, the management of that risk creates a reasonable requirement that employees charged with indictable offences disclose that fact to the respondent to allow proper management of the risk.

[20] While I can fully understand Mr Mathers reticence to disclose the charges, the importance of his obligation to do so cannot be ignored. It is in this context that I now consider whether Mr Mathers asserted mitigating factors off set the need to sanction his breach of this important policy.

[21] A prominent assertion by Mr Mathers is that he failed to disclose the charges on legal advice. In essence, Mr Mathers contends that his lawyer acting for him in relation to the charges advised him he did not need to disclose them.

[22] At an earlier mention of this matter, I explored this submission with Mr Mathers. I indicated to Mr Mathers that if he intended to rely on such a submission, I would expect him to make some effort to have the lawyer in question verify this advice. I informed Mr Mathers that I would not be reaching potentially adverse conclusions about the advice he received without some form of independent evidence from the lawyer in question.

[23] In the circumstances I informed Mr Mathers that, contrary to the usual practice with such appeals, I would consider additional evidence of this nature. Subsequently, Mr Mathers provided an email from his (former) lawyer and a Statutory Declaration from his wife.

[24] The email from his (former) lawyer revealed that she had long ago left the firm where she was working at the relevant time and no longer had access to the file or her notes. The lawyer did not recall precisely what advice she gave except that she did recall she recommended he get independent employment law advice on his disclosure obligations.

[25] The Statutory Declaration from Mr Mathers wife states that she was present with him during his legal consultation and that the lawyer answered the question asked about disclosure by stating that 'these are charges, not convictions, so no need to inform your employer yet' or words to that effect.

[26] In the circumstances, it is not necessary for me to resolve the truth or otherwise of what advice Mr Mathers was given. I accept the lawyer's recollection. But I also accept that Mr Mather and his wife left the consultation with a genuine belief that he did not have to disclose the charges to the respondent. In the common experience of legal consultations, especially where there are multiple issues of great personal significance, it is not unusual for someone in Mr Mathers position to miss subtle qualifications or provisos contained in advice. I consider that is what has most probably happened here.

[27] But more importantly, the email from his former lawyer that was produced by Mr Mathers reveals that he was clearly conscious of the possibility of his obligation to disclose the charges. It was the very reason for his inquiry. In my view this is significant because, even without a knowledge of the policy, Mr Mathers' mind was turning to consider his obligations to disclose the charges. The fact that Mr Mathers chose to ask his (criminal) lawyer is perhaps understandable. But there were other (obvious) sources of this information that may have produced the correct response. Mr Mathers could have checked the respondent's policies online. Or he could have posed a hypothetical to a colleague or manager who might be more familiar with the obligation.

[28] In my view, the fact that Mr Mathers turned his mind to the obligation to disclose gives rise to an obligation for him to ensure he got a reliable answer to the question. Simply declaring that he obtained legal advice in these circumstances does not displace the obligation under the policy. I accept it is a mitigating factor, but I also consider that consideration of that factor has been demonstrated by the respondent and it was taken into account.

[29] It is not disputed by the respondent that, even now, the policy is not expressly addressed in staff training. It is submitted by the respondent that the Code of Conduct training contains 'information about' the policy. Upon his recent return to work (after an extensive absence) Mr Mathers undertook his Code of Conduct training again and it was not disputed by the respondent that there was no direct reference to the policy.

[30] Mr Mather has contended that 'he cannot be expected to know every policy'. To some extent he is correct about this. While there is no evidence before me as to the precise number of policies and directives impacting Mr Mathers, common experience with the public sector would suggest there are at least dozens. It is , in my view, highly unrealistic to anticipate that every public sector employee will develop an encyclopaedic knowledge of every policy upon completion of on line, self-supervised training. But they do not have to.

[31] Mr Mather overlooks the fact that the policies and directives are available either on a staff intranet in most public sector workplaces or on the internet. A simple Google search reveals this.[6] While I have no doubt that Mr Mather (quite reasonably) could not be expected to know every policy at any given time, it seems it would have been a very simple task to inform himself.

[32] Mr Mathers submission more generally contain grievances about the delay in the disciplinary process being concluded, and assertions that his periods of suspension without pay are punishment enough.

[33] The delay is readily explained by the corelating delay in the resolution of criminal proceedings. Mr Mathers quite incorrectly asserts that the respondent's delay in proceeding with his disciplinary process was based on a presumption of his guilt on the charges. Plainly the delay in the outcome of the criminal proceedings was a matter out of the respondent's control. But the outcome was an important consideration for the respondent because, had Mr Mathers been convicted, an entirely different disciplinary process would have to be commenced (subject to any appeals) or more particularly, added to the existing process.

[34] While I appreciate that Mr Mathers found himself in an unusual situation, I do not consider that he took all steps reasonably open to inform himself of his obligations. Even if I am wrong about that, I do not consider that the legal advice or the absence of policy specific training relieved him of his obligation to comply with the policy.

[35] While I accept that his non-compliance was not a deliberate act of deceit, and that his failure to comply with the policy was not entirely his fault, I am unable to be satisfied that these factors render the decision unfair and unreasonable.

[36] It follows that I consider the decision is fair and reasonable.

[37] In the circumstances, I make the following Order:

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

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

Mathers v State of Queensland

At a glance

Court

Decision date

Before

Source

Judgment (56 paragraphs)

Parties

Legislation Cited (1)