Quinn v State of Queensland

Industrial Relations Act 2016 (Qld) s 562B, s 562C

Industrial Relations (Tribunals) Rules 2011 s 97

Public Sector Act 2022 (Qld) s 91, s 92

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

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

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397

Rich v Australian Securities and Investment Commission [2004] HCA 42; (2004) 220 CLR 129

• [1] Mr Matthew Quinn ('the Appellant') is employed by Queensland Health as a NGR10(2) Assistant Director of Nursing - Critical Care at Ipswich Hospital within the Clinical Services Division of West Moreton Health Hospital and Health Service ('WMHHS').

• [2] By letter dated 18 February 2025, Mr Quinn was informed by the Respondent that the following allegation was substantiated:

On 18 April 2024, in your official capacity as Assistant Director of Nursing - Critical care you offered Ms P the position of Nurse Unit Manager - Emergency department in West Moreton Hospital and Health Service without the proper authority.

• [3] In the same letter of 18 February 2025, Mr Quinn was invited to show cause as to why the proposed disciplinary action of a reprimand and reduction of one increment level from NGR10(2) to NGR10(1) for a period of twelve months should not be imposed.

• [4] The Appellant provided his response on 4 March 2025 and by letter dated 24 March 2025, Mr Quinn was advised that his response was considered and that the disciplinary action to be taken would consist of a reprimand and reduction of one increment level to NGR10(1) for a period of six months ('the disciplinary decision').

• [5] On 14 April 2025, the Appellant filed a Notice of Appeal in the Industrial Registry appealing the disciplinary decision of the Respondent on 24 March 2025.

• [6] The issue to be determined in this appeal is whether the disciplinary decision dated 24 March 2025 which imposed disciplinary action of a reprimand and a reduction of one increment level from NG10(2) to NG10(1) for a period of six months, was fair and reasonable.

• [7] For the reasons that follow I am satisfied that the disciplinary decision was fair and reasonable and I confirm the decision.

• [8] Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[1]

• [9] The IR Act provides that for an appeal against a disciplinary decision, the commission:[2]

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

• [10] A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the Decision Maker.[3]

• [11] The issue for my determination is whether the decision appealed against was fair and reasonable.[4]

• [12] Section 131 of the Public Sector Act 2022 (Qld) ('the PS Act') lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that an appeal may be made against a "disciplinary decision". Section 129 of the PS Act defines a disciplinary decision as:

... a decision under a disciplinary law to discipline -

(a) A person (other than by termination of employment), including the action taken in disciplining the person.

• [13] Mr Quinn has been employed by the Respondent at all times relevant to this appeal.

• [14] Section 564(3)(d) of the IR Act requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

• [15] The Appellant received the disciplinary decision on 24 March 2025[5] and lodged his Notice of Appeal on 14 April 2025.

• [16] I am satisfied that the Appeal Notice was filed by Mr Quinn within the required 21-day timeframe.

• [17] Section 91 of the PS Act relevantly provides as follows:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. ....

(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.

(a) for a public sector employee, means -

(i) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and ...

• [18] Section 92 of the PS Act provides the meaning of "Disciplinary action" as follows:

(1) Disciplinary action is any action relating to employment, including, for example, any of the following actions -

(a) termination of employment;

(b) reduction of classification level and a consequential change of duties;

(c) transfer or redeployment;

(d) forfeiture or deferment of a remuneration increment or increase;

(e) reduction of remuneration level;

• [19] Directive 05/23: Discipline ('Directive 05/23') operated from 1 March 2023 and its purpose is to outline the process for managing disciplinary action in accordance with the PS Act.

• [20] Clause 4.8 of Directive 05/23 relevantly provides:

4.8 Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

• [21] Clause 9 of Directive 05/23 sets out the disciplinary process. Clause 9.3 sets out the show cause process for a disciplinary finding, and cl 9.4 sets out the process of making a disciplinary finding.

• [22] Relevantly, cl 9.5 of Directive 05/23 sets out the show cause process for proposed disciplinary action as follows:

9.5 Show cause process for proposed disciplinary action

(a) The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).

(b) The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.

(c) The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act.

(d) In proposing appropriate and proportionate disciplinary action, the chief executive should consider:

(i) the seriousness of the disciplinary finding

(ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations

(iii) whether extenuating or mitigating circumstances applied to the employee's actions

(iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings

(vi) the degree of risk to the health and safety of employees, customers and members of the public

(vii) the impact on the employee's ability to perform the duties of their position

(viii) the employee's potential for modified behaviour in the work unit or elsewhere

(ix) the impact a financial penalty may have on the employee

(x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

(e) A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.

(f) The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.

(g) If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

• [23] Clause 9.6 of Directive 05/23 provides for the process with respect to making a decision on disciplinary action as follows:

(a) the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken

(b) the chief executive must inform the employee of the decision in writing, including:

(i) the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice

(ii) excluding a termination decision, information that the employee may appeal the decision on disciplinary action

(iii) for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act

(c) the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:

(i) the revised disciplinary action is objectively less onerous than the original action proposed, or

(ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or

(iii) the employee has suggested the disciplinary action as an appropriate alternative penalty

(d) disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

• [24] The Code of Conduct for Queensland Public Service 2011 relevantly provides:

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

1. adhere to the policies, organisational values and organisational documents of our employing agency.

We have an obligation to seek to achieve high standards of public administration and perform our duties to the best of our abilities.

1. exercise our lawful powers and authority with care and for the purpose for which these were granted, and

• [25] The Appellant, in his Notice of Appeal, submits that the decision on penalty is unfair and unreasonable because of the following factors:

• The disciplinary action is disproportionate to the substantiated allegation;

• The Respondent has placed an inappropriate emphasis on factors not relevant when determining what disciplinary action should be imposed including:

• The Appellant's length of service with the Respondent supporting a stronger penalty rather than being a mitigating factor;

• Finding that the Appellant actively supported or encouraged Ms P to resign from her existing role;

• The significant repercussions that the Appellant's actions had on Ms P.

• The Respondent failed to give sufficient consideration to:

• The Appellant's extenuating and mitigating circumstances;

• The significant impact a disciplinary penalty could have on the Appellant's future employment with Queensland Health;

• The Appellant's acknowledgement of his conduct and apologies;

• The significant delays relating to the discipline process;

• [26] The Appellant's submissions filed on 1 May 2025 largely reflect and extend on the Grounds of Appeal as noted above. At the beginning of his submissions, however, the Appellant does include some useful background information which can be summarised as follows:

• The Appellant submits that in January 2024, a recruitment process occurred for the role of Nurse Unit Manager in the Emergency Department at Ipswich Hospital ('the role'). It is noted that the Appellant was the chair of that selection panel. As a result of this recruitment process, two candidates were interviewed and identified as suitable, Mr F and Ms P.[6] Mr F was offered the role and took up the position.

• On 17 April 2024, the Appellant submits that Mr F resigned from the role and due to having indicated on a number of occasions previously, his intention to resign, the Appellant accepted Mr F's resignation.

• On 18 April 2024 the selection panel for the role (including the Appellant), reconvened and it was determined that Ms P would be contacted to see if she was still interested in the role. The Appellant called Ms P on 18 April 2024.

• Immediately following the phone call with the Appellant, Ms P resigned from her position at the Princess Alexandra Hospital. She advised the Appellant that she had resigned from the role at Princess Alexandra by email at 12:49pm on 18 April 2024. A Request to Hire - Selecting Order of Merit in the Alternative Recruitment Section Form was sent to the delegate, Ms Johnson, for approval of the recruitment of Ms P on 22 April 2024.

• The Appellant subsequently communicated with Ms P in relation to her commencing employment. Unbeknownst to the Appellant, while this was occurring, members of senior management were discussing with Mr F the rescission of his resignation. On 26 April 2024, Mr F met with senior staff to discuss his resignation.

• On 29 April 2024 the Appellant became aware that Mr F would be allowed to rescind his resignation and the Appellant subsequently notified Ms P that the role was no longer available.

• [27] In support of his Appeal, in his submissions, the Appellant outlined the following:

• The Appellant contends that despite being aware from at least 22 April 2024, that the Appellant wished to offer Ms P the role, Ms Johnson made no steps to inform the Appellant of the possibility that Mr F would be permitted to rescind his resignation.

• The Appellant then goes on to expand on his Grounds of Appeal including:

1. The Respondent has placed an inappropriate emphasis on findings that are not relevant, or were not reasonably open to it; and

1. The Respondent failed to give sufficient consideration to relevant mitigating factors.

• In relation to Ground 1, the Appellant contends that the decision maker has concluded that his history of employment does not mitigate the seriousness of the actions. Rather than treating the factor as a neutral consideration, the Appellant contends that the Respondent then uses Mr Quinn's years of service as a factor to justify a more serious view of his conduct. The Appellant submits that this view does not take into consideration:

• the Appellant has worked for the Respondent for approximately 29 years and there have been no previous disciplinary findings against him;

• it has been 16 years since he last undertook recruitment training;

• the Appellant's assurances that a similar incident would not occur again; and

• the mitigating factors associated with the conduct which led to the identification of disciplinary grounds.

• The Appellant then objects to the Respondent's reliance on his "alleged active support or encouragement of Ms P's resignation". The Appellant contends that there is no evidence that he induced or encouraged Ms P's resignation. He submits that during the phone call on 18 April 2024, Mr Quinn made it clear that they were awaiting delegate sign off. The submission notes that the Appellant's evidence was to the following effect:

we were following a recruitment process, and [the Appellant] was seeking her interest as a preferred merit listed candidate ... clear to state we were awaiting delegate sign off.

• The Appellant submits that the Disciplinary Decision relies on a finding that the Appellant's actions subsequently had significant repercussions for Ms P. The Appellant contends that this is not the case and submits that any repercussions were primarily caused by the unusual recruitment situation, which involved:

• Ms P's immediate resignation from the PA role on 18 April 2024.

• The Health Services' decision to allow Mr F to rescind his resignation, meaning Ms P could no longer be offered the role.

• The Health Services' failure to mitigate the impact of Mr F's rescinded resignation by:

1. Informing the Appellant that it was a possibility, meaning the Appellant did not have essential information when communicating with Ms P; and

1. Informing Ms P directly that there may be additional considerations at work in relation to her appointment.

• Mr Quinn recognises that he may have been overenthusiastic in his attempts to recruit for the role however it is unreasonable to infer that his actions had significant repercussions on Ms P over and above the actions of any other person involved.

• In relation to Ground 2, the Appellant submits that there is no evidence in the disciplinary decision that the mitigating factors put forward by him have been considered by the decision maker. The mitigating factors referred to by the Appellant are those outlined in [17] above.

• [28] The Respondent filed its Outline of Submissions on 15 May 2025.

• [29] The Respondent denies that the delegated decision-maker, Mr Wallace, placed an inappropriate emphasis on factors that were not relevant when making the Disciplinary Decision.

• [30] In response to the Appellant's assertion that his employment history was treated as a matter that supported a serious disciplinary penalty, the Respondent contends that this was not the only factor considered in deciding the appropriate penalty.

• [31] The Respondent further submits that Directive 05/23 states that the delegate should consider the employee's overall work record and classification level when proposing appropriate disciplinary action.

• [32] Additionally, the Respondent submits that the Appellant should have known better than to engage in conduct which suggested predetermination of another delegate's decision given his extensive experience in recruitment, having been responsible for the intake of approximately 300 nurses in a previous role. Given this, the Respondent also contends that it is not enough for the Appellant to have assumed that the delegate would likely sign off on the recruitment of Ms P.

• [33] In response to the Appellant taking issue with the reliance on his alleged active support or encouragement of Ms P's resignation, the Respondent contends that while there may not be direct evidence of the Appellant's conduct prior to receiving the email from Ms P on 18 April 2024, it is evident that Mr Quinn was on notice of Ms P's resignation and failed to clarify with her that no formal offer had actually been made yet.

• [34] Further to this point, the Respondent submits that it was Mr Wallace's finding that the totality of the Appellant's actions between 18 April - 24 April 2024 supported a finding that Mr Quinn 'actively supported and encouraged' Ms P to resign.

• [35] In support of this finding was an email from Ms P on 29 April 2024[7] where she explained that as a result of the Appellant's actions, she withdrew her permanent conversion application, gave up her allocated car park and informed colleagues that she was ceasing her employment.

• [36] The Respondent denies that the delegated decision-maker dismissed the Appellant's response regarding his communication with Ms P. The Respondent contends that Mr Wallace carefully considered the Appellant's responses which included his timeline of events and the emails exchanged between himself and Ms P. The submission notes that Mr Wallace acknowledged:

(a) The Appellant's statement that he was clear with Ms P that he was following a recruitment process and was only seeking her confirmation that she was still interested and that all of the material would be collated for the delegate to signoff. The Respondent notes that the decision-maker reasonably decided that this statement was incongruent with the Appellant's email to Ms P on 18 April 2024 at 1:05 pm in which the Appellant, among other things, negotiated a start date and advised that, '13th May will fit in well, we'll lock it in'[8]; and

(b) that on 24 April 2024 at 8.10 am, the Appellant emailed Ms P to discuss working arrangements and mentioned that he was waiting for the approval of a letter of offer. However, Mr Wallace reasonably considered that the phrasing of the Appellant's email implied that there was already an in principle agreement in place.[9]

• [37] In light of those matters, the Respondent contends that the decision-maker was justified in finding that:

...[a]t no time, throughout all of [Mr Quinn's] engagements with Ms P or throughout Mr Parker's engagement with Ms P which was undertaken at [Mr Quinn's] request, was any caution communicated to her to wait for the final approval from the delegate prior to making any final plans.

• [38] The Respondent rejects the Appellant's assertion that the significant repercussions experienced by Ms P were a result of the 'unusual recruitment situation'. The Respondent contends this is a demonstration of the Appellant's lack of insight into his conduct.

• [39] In relation to the Appellant's contention that the matter should have been dealt with by non-disciplinary management action, the Respondent submits that this was not a matter where the positive performance management principles would apply pursuant to s 86 of the PS Act. The Respondent contends that an employee's failure to act within the limits of their authority as it relates to the recruitment of employees, causing significant repercussions for a prospective candidate, is a serious matter which is properly grounds for discipline pursuant to s 91(1)(h) of the PS Act.

• [40] In response to the Appellant's assertion that there was a lack of consideration of the mitigating factors put forward, the Respondent submits that decision-maker was aware of the mitigating factors raised by Mr Quinn and gave them sufficient consideration.

• [41] With respect to the Appellant's financial circumstances, the Respondent contends that the decision maker carefully considered this point and decided to reduce the duration of the increment reduction to six months in light of the Appellant's Show Cause response.

• [42] In further response to the Appellant's alleged encouragement of Ms P's resignation, Mr Quinn submits that as Ms P resigned from her role on 18 April 2024, any action of the Appellant following this cannot be used to support a finding that he encouraged her resignation.

• [43] The Appellant contends that he is cognisant of how his conduct may have impacted Ms P and submits that he has repeatedly expressed remorse in relation to this. The Appellant submits that it is disappointing that the Respondent does not appear to consider the Appellant's remorse as a mitigating factor.

• [44] The Appellant contends that given the number of mitigating factors he has identified, it is unfair and unreasonable to impose a serious disciplinary penalty rather than a reprimand.

• [45] I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at.

• [46] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)[10] ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.[11]

• [47] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.[12] His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[13]

Appeal Ground 1 - The decision on penalty is unfair and unreasonable

• [48] The Appellant contends that the penalty is disproportionate to the substantiated allegation due to his mitigating factors and for the reasons set out in his response to the second show cause letter.[14] This general ground is then taken up by the specific matters that the Appellant has set out in his grounds for appeal.

Respondent has placed inappropriate emphasis on findings that are not relevant

• [49] The Appellant contends that the Respondent has erred in finding that the Appellant's lengthy employment history with the Respondent was a reason which justified a more significant sanction, rather than being a mitigating factor. In his appeal submissions, the Appellant contends that the disciplinary decision does not appropriately recognise the following:

• His approximately 29 year working history with the Respondent with no previous disciplinary findings.

• That it had been 16 years since the Appellant undertook the Respondent's recruitment training.

• The Appellant's assurances that a similar incident would not occur again.

• [50] In the disciplinary decision dated 24 March 2025, the delegated decision-maker Mr Wallace noted the following:

• The Respondent's Recruitment and Selection HR Policy B1 relevantly states:

The appropriate delegate is responsible for authorising and approving decisions related to recruitment activities and appointments. A delegate can elect to be on the selection panel, however delegations for a)] decisions related to the recruitment will shift up to the delegate's line manager (the 'one up' rule).

... The panel chair must be trained in conducting recruitment and selection activities, including training on bias, prior to commencing the hiring process. It is highly recommended that panel members also complete this training.

The panel chair is responsible for leading the selection process in an open and transparent way in accordance with policy and legislation. The chair must be a Queensland Health employee appointed by the appropriate delegate and be of a higher classification level than the vacancy. The chair cannot also be the delegate for appointment of the role.

The appropriate delegate is responsible and accountable for the decision to appoint in the recruitment and selection process, and is specifically responsible for:

• possessing a thorough understanding of the requirements of recruitment and selection processes as applied within Queensland Health
• reviewing the selection report and documentation e.g. employment screening checks to ensure the process applied was completed fairly and able to withstand appropriate scrutiny, including panel composition, and integrity and merit-based assessments and decision-making
• dealing with matters of contention
• making decisions relating to the appointment recommendations made in the selection report by approving/not approving the recommendations.

• The Appellant's contention that he had extensive experience in recruitment and selection and had been responsible for the intake of approximately 300 nurses at a hospital in a former role.

• The Appellant's report that he had previously undertaken recruitment and selection training at Metro South Hospital and Health Services.

• That as a consequence of the recruitment and selection experience highlighted by the Appellant, he was aware, or ought to have been aware of his obligations to:

• adhere to the organisation's policies, organisational values and organisational documents, particularly with regard to recruitment and selection;

• exercise his lawful powers and authority with care and for the purpose for which they were granted.

• The Appellant failed to do so in breach of clauses 3.1 and 4.1 of the Code of Conduct.

• [51] Mr Wallace further noted in the disciplinary decision that the Appellant was a senior leader within the WMHHS with many years of service including in roles that required the Appellant to be responsible for recruitment. The decision-maker further noted that he considered that it was an inherent part of the Appellant's role to understand and act within the limits of his authority as it related to the recruitment of employees in his area of responsibility.

• [52] Mr Wallace further noted because of the matters outlined in the preceding paragraph, it was reasonable for him to expect that the Appellant would understand:

• His responsibilities under the Code of Conduct.
• His responsibilities in relation to his delegated authority.
• The possible consequences of his actions.

• [53] Mr Wallace noted that he had considered the Appellant's submissions and his overall work record, but these factors had to be balanced against the significance of the Appellant's substantiated conduct. The decision-maker then concluded that the Appellant's failure to act within his authority in the circumstances was unacceptable and warranted the imposition of a proportionate discipline action.

• [54] The Respondent in its submission denies that Mr Wallace placed an inappropriate emphasis on factors that were not relevant or not reasonably open to him.

• [55] The Respondent further contends that the Appellant's work history was not the only factor considered in determining the appropriate penalty.

• [56] The Respondent further notes that Directive 05/23 confirms that the chief executive officer should consider (amongst other things) the employee's overall work record and the employee's classification level and/or expected level of awareness about their conduct in proposing appropriate and proportionate disciplinary action.[15]

• [57] The Respondent goes on to contend that having regard to the Appellant's experience in recruitment, the Appellant should have known better than to engage in conduct which suggested a pre-determination of another delegate's decision. In that context, the Respondent submits that it was fair and reasonable for the decision-maker to consider the Appellant's history of employment and balance this against the significance of the substantiated conduct.

• [58] Further, the Respondent submits that comments made by the decision-maker regarding being 'particularly disappointed ... in the conduct' and that the Appellant 'should have known better than to engage in the conduct' were justified and open to be made.

• [59] In the Appellant's response[16] to the initial show cause letter dated 19 December 2024,[17] the Appellant in my view places a lot of emphasis upon his experience in recruitment and selection. He noted specifically that in his previous role he had significant experience in recruitment and selection as the main recruitment officer for a whole hospital system and that he had brought in over 300 nurses, following very strict processes, and never wavering from policy or delegation sign off requirements.

• [60] Further, the Appellant goes on to emphasise his role as a senior leader of the ED nursing team since taking on the role of the Assistant Director of Nursing Critical Care.

• [61] It is not in my view unusual that a decision-maker when considering whether to impose a penalty for a disciplinary breach and the extent of that penalty, for the decision-maker to take into particular account the experience, role, leadership responsibilities and particular skills of the subject employee.

• [62] Where the subject employee is in a leadership role and has substantial experience, in my view the employer could hold a legitimate expectation that the employee would be expected to model compliance with the Code of Conduct, and compliance in relation to the Respondent's policies and the delegated authorities.

• [63] Further, in circumstances where the Appellant himself provided the background as to his substantial recruiting and selection experience, and his self-reported consistent compliance with policy and delegation sign off requirements in the past, this was also a relevant matter for the delegated decision-maker to weigh, in determining the appropriate penalty to be applied in light of the substantiated conduct.

• [64] I am not satisfied that the decision-maker has erred in anyway in the manner in which he went about weighing the factors to reach a conclusion that the Appellant's actions warranted the imposition of a significant discipline action. I am satisfied that as regards this ground of challenge, the disciplinary decision was fair and reasonable.

Respondent erred in finding that the Appellant actively supported Ms P resigning

• [65] The submissions of the parties have been summarised regarding this ground earlier in this decision.

• [66] The Appellant contends that he made clear to Ms P during the telephone conversation on 18 April 2024, that he was only ascertaining whether Ms P was still interested in the role and that they were awaiting delegate sign off.

• [67] The Appellant further alleges that Ms P resigned prior to sending the 18 April 2024 email.[18] He further contends that there is no evidence that the Appellant's conduct prior to receiving the 18 April 2024 email from Ms P induced or encouraged Ms P's resignation.

• [68] In dealing with this ground of appeal, it is necessary as a starting point to consider the nature of the allegation put to the Appellant in the initial show cause letter dated 19 December 2024. This was in the following terms:

... on 18 April 2024, in your official capacity as Assistant Director of Nursing - Critical Care you offered Ms P the position of Nurse Unit Manager - Emergency Department in West Moreton Hospital and Health Service (WMHHS) without the proper authority.

• [69] The Respondent in its submissions filed on 15 May 2025 contends that it was the decision-maker's finding that the totality of the Appellant's actions between 18 April 2024 and 24 April 2024 supported a finding that the Appellant 'actively supported and encouraged' Ms P to resign. The finding was not limited to the Appellant's conduct solely on 18 April 2024.

• [70] The Respondent submits that this finding was reasonably open on the material available to Mr Wallace.

• [71] It is therefore necessary to analyse the relevant evidence.

• [72] The Appellant asserts that in the conversation with Ms P on 18 April 2024 he was only ascertaining if she was still interested in the role and that he was clear with her that he was following a recruitment process and waiting for Delegate sign off.[19]

• [73] This position is then walked back to some degree by the Appellant conceding that in going back over the events, he came to realise some areas of misjudgement on his part and some messaging could be perceived by Ms P as having received an offer of a position.[20]

• [74] The contemporaneous documentary evidence is more supportive of the concession made by the Appellant, rather than the Appellant being clear in his messaging to Ms P that there was no offer being made and that a formal letter of offer would issue following delegate sign-off.

• [75] The documentary evidence trail begins with the email from Mr F to the Appellant sent at 10:02 am on 17 April 2024 confirming his resignation from the Nurse Unit Manager position.[21]

• [76] At the request of the HR unit for the Appellant to document his actions, the Appellant provided an email dated 1 May 2024[22] which in detail set out his actions. The Appellant notes:

• Receiving Mr F's resignation email on 17 April 2024.

• Having a conversation with Mr F early on the morning of 18 April 2024 regarding how his resignation would be announced.

• At 10:30 am on 18 April 2024 the Appellant reconvened with the panel to discuss merit order and it was determined that the Appellant would reach out to the candidate (Ms P) who was merit listed and seek confirmation if she was still interested in the position.

• During the afternoon and prior to the GR7 ED meeting, the Appellant spoke to Ms P and confirmed that she was still interested in the role. The Appellant asserts that he stated that 'we' would follow usual process and seek line manager reference and normal checks prior to confirmation. The Appellant asserts that he did not provide a formal offer of position.

• At 3:00 pm during the ED GR7 meeting, it was announced that Mr F was going to resign and that he had spoken to the candidate who was merit listed and the Appellant confirmed that 'we' had a successful replacement.

• [77] Ms P provided an email dated 29 April 2024[23] in which she confirmed that in January 2024 she completed a formal process, interviewed and merited for the Ipswich Emergency Department Nurse Unit Manager. She goes on to assert that she received a phone call from the Appellant offering this position and she refers to attached emails with the start date arrangement.

• [78] Consistent with Ms P's position that she did receive an offer from the Appellant in the telephone call on 18 April 2024 is the email Ms P sent to the Appellant at 12:49 pm on Thursday 18 April 2024.[24] In that email Ms P thanks the Appellant for the phone call that day. Ms P goes on in the email to say:

I have notified my current line manager - Chris Inglis-Simons about an incoming referee report and incoming departure.

There is the possibility to bring back PW early from his project. A 13th May 2024 start date could align well, of course a decision for my ADON.

Currently I am completing the Management Development Program with Metro South Health which is a 4-day course over a number of months, the last day of that program is 14th May so I would like to attend that if possible. ...

Please let me know if I am required to provide you with anything else, VPD is attached for you as requested.

• [79] This email is consistent with Ms P's version that the job was offered to her by the Appellant in the conversation on 18 April 2024. It is also indicative of that conversation extending to potential starting dates which is also consistent with Ms P's version of events.

• [80] The 'VPD' referred to by Ms P in the email excerpt above refers to vaccine preventable disease certification. This indicates that in the conversation with Ms P on 18 April 2024 the Appellant requested that she provide this information. This is a further factor pointing to an offer being made.

• [81] The Appellant then responds by email on 18 April 2024[25] at 1:05 pm stating:

That all sounds great. I'm sure we can accommodate those training dates as well. I have spoken to our current NUM who is happy to stay the extra week for handover.

• [82] This email is in my view wholly inconsistent with the Appellant's version of telling Ms P that they were following a recruitment process and were waiting for delegate sign-off. If it were the case that this was the Appellant's mind-set he has not provided a plausible explanation as to why he did not immediately email Ms P re-iterating that no formal offer had been made and that her being offered the role was dependent upon the delegate signing off on the recommendation.

• [83] As noted by the decision-maker in the disciplinary finding letter dated 18 February 2025, the Appellant's actions in wording the 18 April 2024 email to Ms P in the manner he has is incongruent with his version that he was clear to Ms P that her commencement was pending approval.

• [84] As noted above, at the ED GR7 meeting at 3:00 pm on 18 April 2024, the Appellant not only notified the attendees that Mr F was resigning, but also that there was a successful replacement (this could only be Ms P). This is a further indicator that in the Appellant's mind, there was no question that Ms P would be commencing in the NUM role.

• [85] This conclusion is further reinforced by the email that the Appellant instructs Matthew Parker to send to ED staff members on Friday, 19 April 2024 at 8:08 am.[26] The subject line of that email is 'Ipswich ED NUM Update'. Mr Parker then includes a message from the Appellant in which the Appellant announces the resignation of Mr F. The Appellant goes on to note:

K will finish up here at Ipswich ED on 24th May 2024, after a week of handover for our new ED NUM, RP who joins us from PAH and is a local to the Ipswich community ...

• [86] Once again, this email is more consistent with the Appellant having offered the role to Ms P, and Ms P confirming to the Appellant her acceptance of the job offer.

• [87] There is other contemporaneous evidence which is supportive of the conclusion that the Appellant made a job offer to Ms P on 18 April 2024.

• [88] Matthew Parker, Director Support Officer at the direction of the Appellant is involved in liaising with Ms P regarding logistics for her commencing employment with West Moreton. This is evidenced by an email chain commencing on 18 April 2024 through to 22 April 2024.[27]

• [89] In an email dated 18 April 2024, at 1:13 pm (approximately eight minutes after the Appellant's email to Ms P referred to in paragraph [81]), Mr Parker sends an email to West Moreton Infection Prevention Team attaching Ms P's VPD information. In that email he notes:

We have a new ED staff member coming in May attached is all her VPD stuff for clearance.[28]

• [90] The last contemporaneous evidence is an email that the Appellant sends to Ms P on 24 April 2024[29] at 8:10 am in response to an email from Ms P the previous evening which discussed what roster the Appellant would like her to work, and her inclusion on TEAMS/Email distribution lists.

• [91] In his reply email the Appellant states:

I'm still happy with the 13th May, there is some face to face training for IWFM that week as well, we have touched base with the project lead, and he will be happy to provide any support for you.

For work arrangement, I'm fairly flexible in terms of a 19-day month or a 9-day fortnight. Your hours are set by you and how you want to assimilate into the team. We can discuss structure a bit more once you are here and finished handover.

We should have the letter of offer to you very soon, just awaiting Executive Director to sign and we will be on our way.

Just checking Chris your line manager has cleared you to go from the 13th.[30]

• [92] Once again, this is consistent with the Appellant regarding it as a foregone conclusion that Ms P would be commencing in the role. For the first time the Appellant mentions in correspondence that he is waiting for the Executive Director to sign the letter of offer, but this is very much couched as being a formality.

• [93] Ms P sent an email in reply on 24 April 2024 at 9:31 am in which she confirms she notified her current ADON in writing on Friday (presumably 19 April 2024) which provided her with three weeks' notice. Ms P. requests that the Appellant contact her ADON.[31] This appears to indicate that the formal resignation in fact occurred on 19 April 2024 (and after the email exchange between Ms P and the Appellant the day before).

• [94] The Appellant replied to Ms P. after contacting her ADON by email on 24 April 2024 at 6:28 pm as follows:

Chris has confirmed 13th May start date. See you then.[32]

• [95] It is apparent that at no time during that six day period did the Appellant caution Ms P in any way that she should hold off resigning until he confirmed that the delegate had signed off on the offer. To the contrary, all of the steps taken during that period were consistent with Ms P's version of there having been an offer made to her on 18 April 2024.

• [96] In light of the evidence summarised above, I am more than satisfied that it was open to the decision-maker to find that the Appellant had offered Ms P a role without proper authority. I am also satisfied that it was open to the decision-maker to find that the Appellant was supporting or encouraging Ms P to resign from her existing role. In my view the contemporaneous evidence summarised above supports those findings.

• [97] The Appellant has failed to establish any error by the decision-maker in his analysis of the evidence and the conclusions he has drawn from that evidence. Further, the decision-maker was entitled to take that factual background into account when determining what was a proportionate penalty to be imposed.

The alleged significant repercussions of the Appellant's actions on Ms P

• [98] The Appellant contends that the decision-maker erred in this conclusion because the significant repercussions to Ms P were caused by the unusual recruitment situation, which he alleges involved:

• Ms P's resignation on 18 April 2024.
• The Health Services' decision to allow Mr F to rescind his resignation, meaning Ms P could no longer be offered the role.
• The Health Services' failure to mitigate the impact of Mr F's rescinded resignation by informing the Appellant this could occur.

• [99] The Respondent, whilst noting that the recruitment situation was unusual, submits that this does not excuse the Appellant's conduct in offering a position to Ms P without proper authority. The Respondent contends that it was open to Mr Wallace to consider the repercussions for Ms P when determining penalty.

• [100] Ms P in her email to WMHHS dated 29 April 2024[33] notes that due to this offer:

• She removed her temporary to permanent conversion application within Metro South.

• She cancelled her car parking (4 year wait list) and completed other tasks to prepare for the move to Ipswich Hospital.

• She was concerned about reputational damage as her name had gone out to the Ipswich Emergency Department.

• The incident was going to have long term effects socially and professionally as she had to tell her 430+ head count of staff that she was departing PAH.

• Arrangements had been made for another person to come on secondment to relieve her position at PAH so she could commence at the Ipswich ED.

• [101] It is clear that the Appellant's actions did in fact have significant repercussions for Ms P. Whilst there were other factors that contributed, I am satisfied that the actions of the Appellant were a significant contributing factor to the events unfolding as they did. In light of this, I am satisfied that it was appropriate for the decision-maker to rely upon and consider the impact of the Appellant's actions on Ms P when determining the penalty to be imposed for the Appellant's substantiated conduct.

The Respondent failed to give sufficient consideration to relevant mitigating factors

• [102] The Appellant contends that the Respondent failed to give sufficient consideration to the following mitigating factors:

• The unusual recruitment situation;
• The significant impact a disciplinary penalty would have on the Appellant's future employment;
• The Appellant's cooperation with the disciplinary process and the significant delays in that process;
• The Appellant's acknowledgment of his conduct and apologies.
• The Appellant's financial circumstances.

• [103] The Respondent submits that the Appellant's conduct was a significant departure from the standards expected of someone who is highly experienced in recruitment and selection and warranted the imposition of proportionate disciplinary action.

• [104] The Respondent further submits that the decision-maker was aware of the mitigating factors raised by the Appellant and gave them sufficient consideration. The Respondent contends that the fact that the decision-maker did not afford those factors the same weight as the Appellant does not render the disciplinary decision unfair or unreasonable.

• [105] In considering this ground of appeal, it is necessary to note that the aim of a disciplinary proceeding, such as the one involving the Appellant, is firstly for the protection of the public.[34] Those aims are achieved by the imposition of actual punishment.[35]

• [106] Secondly, the aim of a disciplinary proceeding is also the maintenance of public confidence.[36]

• [107] In reaching a conclusion about the disciplinary penalty to be imposed, it seems to me that Mr Wallace has taken into account the extenuating circumstances that the Appellant has raised.

• [108] Firstly, it is clear that the potential impact of the initial penalty of a 12-month reduction of increment level has clearly been considered by the decision-maker. Mr Wallace in the disciplinary decision notes that he was persuaded by the Appellant's concerns about the financial impact to reduce the proposed penalty to a six month reduction of one increment level.

• [109] Secondly, the decision-maker specifically noted the Appellant's submission regarding his remorse and that he had accepted accountability for his errors in judgment and perceived communication errors.

• [110] Thirdly, the decision-maker has noted the Appellant's request that he take into consideration a number of matters concerning the Appellant's employment history. I am satisfied that the decision-maker has done so, but then weighed those matters against the serious nature of the Appellant's substantiated conduct. The decision-maker also noted that the Appellant's conduct had brought into question public confidence in WMHHS and its employees and their ability to conduct themselves in a lawful manner. The decision-maker noted that this was a serious discipline finding.

• [111] Fourthly, it is also clear that the decision-maker was alive to the potential consequences for the Appellant's future employment in warning the Appellant that he may be required to disclose that he had been subject to a reduction in classification level.

• [112] The decision-maker further considered the impact of the decision on the Appellant's human rights, including his right to privacy and reputation.

• [113] On an objective consideration of the disciplinary decision, there is no reason for me not to accept that the decision-maker did take the extenuating and mitigating circumstances raised by the Appellant into account. In my view, it was open to Mr Wallace, and therefore it was fair and reasonable, for Mr Wallace, having regard to the seriousness of the disciplinary finding, to conclude that the disciplinary penalty of the reduction in the Appellant's remuneration of one increment level for six months was an appropriate and proportionate disciplinary action in response to the serious consequences of the Appellant's actions.

• [114] The Appellant has not persuaded me that the disciplinary decision made by Mr Wallace was not proportionate to the conduct of the Appellant. I am therefore satisfied that the disciplinary decision was fair and reasonable.

The matter should have been dealt with via performance management

• [115] The Appellant has consistently maintained that this matter should not have been commenced as a disciplinary process, and instead that it should have been dealt with in accordance with the principles under Directive 02/24 - Positive Performance Management.

• [116] Clause 10.11 of the Positive Performance Management Directive relevantly provides:

10.11 In accordance with section 86 of the Act, a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with this directive, including the PIP requirements outlined above.

• [117] Section 91(1)(h) of the PS Act provides that the chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

• [118] In the present case the decision-maker has determined that he was satisfied that a discipline ground had been established, that being the Appellant had contravened a relevant standard of conduct, relevantly clauses 3.1(e) and 4(c) of the Code of Conduct for the Queensland Public Service.

• [119] Rather than being an issue of performance, I am satisfied that the issue relates to the conduct of the Appellant. In the initial show cause letter dated 19 December 2024 confirmed that the allegation related to the alleged conduct of the Appellant. In the initial show cause letter, the decision-maker also noted that he considered the Appellant may be liable for disciplinary action on the ground of misconduct or alternatively for a contravention of s 91(1)(h) of the PS Act.

• [120] I am satisfied that the conduct of the Appellant was objectively serious and that the allegation against the Appellant was one that was more appropriately dealt with as a disciplinary matter, rather than in accordance with the positive performance management principles.

• [121] I am therefore satisfied that the decision of Mr Wallace to treat the matter as a disciplinary proceeding was fair and reasonable in the circumstances.

• [122] For the reasons I have given, the disciplinary decision was fair and reasonable and the decision is confirmed.

• [123] For the avoidance of any doubt, I will revoke the stay of the disciplinary decision I ordered on 22 April 2025.

1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the discipline decision dated 24 March 2025 is confirmed.

2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 22 April 2025, is revoked.

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

[3] 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).

[4] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).

[5] Notice of Appeal filed 14 April 2025.

[6] Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Tribunal Rules'), the names of the successful candidates have been anonymised because they are not respondents to this Appeal and modifying the decision in this manner does not affect the essence of the document.

[7] Respondent's submissions filed 15 May 2025, Attachment 12.

[10] [2022] QIRC 16.

[11] Ibid, at [25], citing Pope v Lawler [1996] FCA 1446.

[12] Colebourne (n 15) at [21]-[22] and [25].

[13] Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the 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.

[14] Appeal Notice filed 14 April 2025 - Attachment 5 - Undated response to proposed disciplinary action.

[15] Clause 9.5(d) of Directive 05/23: Discipline 2023.

[16] Notice of Appeal filed 14 April 2025, Attachment 2 - correspondence dated 20 January 2025.

[18] Notice of Appeal, Attachment 4, page 6.

[19] Appellant's initial show cause response dated 20 January 2025.

[21] Respondent's submissions, Attachment 7.

[25] Respondent's submissions, Attachment 8.

[27] Respondent's submissions, Attachment 9.

[31] Respondent's submissions, Attachment 11.

[33] Respondent's submissions, Attachment 12.

[34] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President).

[35] Ibid, citing the High Court Rich v Australian Securities and Investment Commission [2004] HCA 42; (2004) 220 CLR 129.

[36] Police Service Board v Morris [1985] HCA 9; (1985) 156 CLR 397, 412 (Brennan J).