Following the deliberations of a five-person selection panel appointed by Queensland's Department of Education (Department), the Department's then Deputy Director-General found himself in hot water with allegations that he engaged in misconduct in the recruitment process for a principal to head the new Brisbane South State Secondary College (Principal A).
In the investigation conducted by the Public Service Commission, Bob Gee, Director-General of the Department of Agriculture (Decision Maker), it was found that the then Deputy Director-General was guilty of misconduct in relation to five of the six allegations against him and guilty of breaching the Queensland Code of Conduct for the Public Service in relation to the sixth allegation. The Queensland Industrial Relations Commission (QIRC) has affirmed the Decision Maker's findings on appeal.
Background
In September 2021, the Decision Maker presented his disciplinary findings to the then Deputy Director-General regarding the six allegations levelled against him. It was found that the then Deputy Director-General had:
- inappropriately involved himself in the recruitment process
- misled Principal A during the recruitment process
- failed to record accurate reasons for the decision to re-advertise the role
- inappropriately changed the student enrolment numbers to justify the decision to re-advertise the role
- attempted to conceal his instructions to change the student enrolment numbers
- provided misleading and false information to the Director-General, which was later issued in a media statement.
The then Deputy Director-General appealed the decision to the QIRC on the basis that:
- the Decision Maker failed to afford natural justice and procedural fairness in the investigation, in accordance with the Industrial Relations Act 2016 (Qld) (IR Act) and the Public Service Act 2008 (Qld) (PS Act)
- the then Deputy Director-General's right to privacy and reputation under the Human Rights Act 2019 (Qld) (HR Act) had been breached by the Decision Maker in the course of its investigation.
Ground 1: Was natural justice afforded?
Presiding member Vice-President O'Connor (Member) ultimately found that the Decision Maker had not treated the then Deputy Director-General unfairly as their conduct had been lawfully informed by Directive 14/20: Discipline and the PS Act. It was held that the Department's formal show cause process had afforded natural justice to the then Deputy Director-General by permitting him to participate in the investigation and providing full particulars of the allegations to which the then Deputy Director-General responded.
This finding was made despite submissions by the then Deputy Director-General that the Decision Maker and investigator should be removed from the matter for failing to adopt the rules of natural justice set out in the Crime and Corruption Commission's Corruption in Focus guide. The then Deputy Director-General made further submissions that the Decision Maker's refusal to provide all relevant witness statements for his review before the end of the investigation was in breach of natural justice.
These submissions were dismissed by the Member, affirming a sentiment of Gleeson CJ that "the ultimate question remains whether there has been unfairness; not whether an expectation has been disappointed".
The Member affirmed the accepted test for misconduct provided by Kirby P in Pillai v Messiter (No 2) (1989) 16 NSWLR 197, which requires more than "mere professional incompetence or ... deficiencies" but rather "a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration".
In respect of fact-finding, the Member confirmed that inferences may only be drawn from facts that have been proven. The Decision Maker was held to have rightly considered the then Deputy Director-General's submissions, highlighted the relevant evidence, made findings of fact and applied the legal rules to those proven facts. The Commission did not raise any issue with the Decision Maker's approach in this respect.
In his decision, the Member addressed each allegation and made a number of notable comments, including that the then Deputy Director-General acted outside of his authority by unlawfully overruling the decision of the selection panel and authorised delegates to approve the appointment of Principal A as principal for the new school. The then Deputy Director-General could not point to a document to support his assumed authority to interfere in the recruitment decision.
The then Deputy Director-General's amendment to enrolment figures and later attempts to conceal the amendment was considered inappropriate and without proper basis by the Member. In addition, the then Deputy Director-General's behaviour was a "deliberate departure from accepted standards of integrity and honesty" and amounted to misconduct in the eyes of the Member.
Ground 2: Was there a breach of human rights?
The second appeal ground was also dismissed. The Member found that Chapter six of the PS Act, which covers the discipline of existing and former public service employees,imposes a reasonable limit on human rights. In balancing the importance of preserving an individual's right to reputation and privacy against the importance of protecting the integrity of the public service, under section 13(2) of the HR Act, the Member considered that the alleged interference with the then Deputy Director-General's human rights could be justified.
The QIRC ultimately dismissed the appeal and affirmed the Decision Maker's findings.
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