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  • Unreported Judgment

Zink v Townsville Hospital and Health Service

 

[2019] QIRC 181

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Zink v Townsville Hospital and Health Service [2019] QIRC 181

PARTIES: 

Zink, Shannan

(Applicant)

v

Townsville Hospital and Health Service

(Respondent)

CASE NO:

D/2019/21

PROCEEDING:

Arbitration of Industrial Dispute

DELIVERED ON:

22 November 2019

HEARING DATES:

9 May 2019

1 and 2 August 2019

16 September 2019 - Applicant's Submissions

4 October 2019 - Respondent's Submissions

14 October 2019 - Applicant's Reply Submissions

MEMBER:

Thompson IC

HEARD AT:

Brisbane

ORDER:

  1. That the Show Cause Notice issued by Galluccio to Zink on 14 January 2019 be withdrawn, forthwith.
  2. The THHS Chief Executive (Keyes) pursuant to s 103(1) of the PS Act exercise the power to appoint an appropriately qualified person to replace Galluccio as the delegate in the disciplinary process involving Zink.

The delegate ought not be a person subordinate to Keyes or a person who had been involved previously in the disciplinary process relating to Zink.  It is likely the replacement delegate will be a person external to the THHS.

  1. Once appointed, the delegate should be provided with all relevant documentation including:
  • complaints;
  • complainants' witness statements;
  • any other witness statements;
  • Investigation Report; and
  • any other material relevant to the disciplinary process.

Note:  Any material relating to aspects of Zink's cooperation or otherwise with the investigation is to be withheld from the replacement delegate.

  1. Within thirty (30) days of the delegation taking effect, the delegate is required to determine, based upon the material provided to them whether grounds for discipline pursuant to s 187 of the PS Act exist and, if so, should Zink's employment continue to be suspended pursuant to s 189(1) of the PS Act.
  2. If the delegate determines that grounds for discipline pursuant to s 187 of the PS Act exist in respect of Zink, a new Show Cause Notice should be issued and at the same time Zink be provided with the complainants' witness statements and any other witness statements to be relied upon by the delegate, unredacted, except in circumstances where there is content that relates to a person's medical circumstances.
  3. In the interim, Zink is to remain suspended from employment on the remuneration to which she is entitled for the duration of the suspension.

However, if after thirty (30) days from the appointment of the replacement delegate, no decision has been made regarding whether the disciplinary process is to proceed or otherwise, Zink would be able to make application to the Commission regarding relief in respect of her suspension.

CATCHWORDS:

INDUSTRIAL LAW – ARBITRATION OF INDUSTRIAL DISPUTE – WHERE APPLICANT SEEKING ORDERS – where applicant suspended from duty – where applicant given notice of show cause – whether applicant liable to be disciplined in relation to certain allegations – where applicant submitted a formal grievance regarding the show cause decision and related matters – where investigation report commissioned – where applicant seeking orders setting aside the respondent's decisions to suspend the applicant from duty.

LEGISLATION:

Industrial Relations Act 2016, s 9, s 261, s 262, s 448, Schedule 5

Hospital and Health Boards Act 2001 (Qld), s 20

Public Service Act 2008, s 23, s 137, s 138, s 187, s 189, s 190, s 192

Hospital and Health Boards Regulation 2012, Schedule 1AA

Public Service Regulation 2018, Clause 4, Schedule 3

CASES:

Kioa v West (1985) 159 CLR 550

Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39

VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88

South Australia v O'Shea (1987) 163 CLR 378

Vega Vega v Hoyle & Ors [2015] QSC 111

Coutts v Close [2014] FCA 19

QSU v Sunshine Coast Regional Council (2009) 192 QGIG 79

Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16

AMEPKU v QR (2000) 165 QGIG 526

Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services) [2017] QIRC 48

Dorante-Day v Marsden [2019] QSC 125

George v Rockett (1990) 170 CLR 104

Mason v MWREDC Limited [2011] FCA 1512

Berenyi v Maynard [2015] QSC 370

Minister for Immigration and Citizenship v SZMDS (2010) HCA 16; 240 CLR 611; 84 ALJR 369

APPEARANCES:

Mr M. Black, Counsel instructed by Mr P. Turner, Maurice Blackburn for the Applicant.

Ms A. Coulthard, Counsel instructed by Ms N. McMahon, McCullough Robertson for the Respondent.

Reasons for Decision

  1. [1]
    A Notice of Industrial Dispute was filed in the Queensland Industrial Relations Commission (the Commission) by Ms Zink (the applicant/Zink) on 27 February 2019 pursuant to s 261 of the Industrial Relations Act 2016 (the IR Act) notifying of a dispute with the Townsville Hospital and Health Service (the respondent/THHS).

Agreed Documents

  1. [2]
    By virtue of an agreement between the parties two bundles of documents (Volumes 1 and 2)[1] were tendered in the proceedings.

Applicant's outline of submissions

  1. [3]
    The applicant provided written submissions (dated 26 July 2019) prior to the commencement of the evidentiary phase of the hearing.

Introduction

  1. [4]
    The applicant is employed as Legal Counsel for the respondent.  However, since 17 May 2018 she has been suspended from duty.  On 14 January 2019 the respondent's delegate issued a notice to the applicant giving her fourteen days to show cause why he should not be satisfied that she was liable to be disciplined in relation to certain allegations.
  1. [5]
    On 7 February 2019 the applicant submitted a formal grievance to the respondent regarding the show cause decision and related matters.  The applicant was dissatisfied with the respondent's response to the grievance and filed the present dispute on 27 February 2019.  To resolve the dispute the applicant seeks the following orders:
  1. (a)
    An order setting aside the respondent's decisions to suspend the applicant from duty on 17 May 2018 and on 14 January 2019 or a declaration that those decisions were invalid or unreasonable.
  1. (b)
    An order that the Investigation Report commissioned by the respondent and dated 9 January 2019 be excluded from consideration in any disciplinary process undertaken by the respondent.
  1. (c)
    An order setting aside the show cause notice issued on 14 January 2019, and requiring:
  1. (i)
    Before any further consideration of disciplinary action is taken, the Respondent is to disclose to the Applicant full copies (without redactions) of any records of interview or witness statements obtained during the investigation of the relevant allegations.
  1. (ii)
    Any further consideration of disciplinary action be undertaken by a delegate other than Mr Salvatore (Sam) Galluccio.

Jurisdiction

  1. [6]
    The subject matter of the applicant's formal grievance dated 7 February 2019 is an "industrial matter" for the purposes of s 9 and Sch 5 of the IR Act.  The Commission has jurisdiction to settle the dispute by arbitration,[2] including the power to "make another order or exercise another power the commission considers appropriate for the prevention of, or the prompt settlement of, the dispute".[3]
  1. [7]
    Under s 448(1)(b) of the IR Act, the Commission may "hear and decide":
  1. (b)
     all questions -
  1. (i)
    arising out of an industrial matter; or
  2. (ii)
    involving deciding the rights and duties of a person in relation to an industrial matter; or
  3. (iii)
    it considers expedient to hear and decide about an industrial matter.
  1. [8]
    Generally, the Commission "has the power to do all things necessary or convenient to be done for the performance of its functions" (s 451(1)), including the power to make such decision or order it considers appropriate (s 451(2)).

Basic Facts

  1. [9]
    The applicant commenced as District Solicitor with the respondent in February 2007.  She remained in that position until a restructure of Queensland Health in 2012, at which time the respondent (the Townsville Hospital and Health Service) was formed and her role became known as Legal Counsel with the respondent.
  1. [10]
    The applicant is employed within the Health Service Legal Unit in Douglas, Townsville.  She reports directly to the respondent's Chief Executive who, since November 2017, has been Mr Kieran Keyes.  Her primary responsibility is to provide legal advice to the Chief Executive, the Executive and the respondent's staff generally.  The Legal Unit has two administrative positions and three legal officer positions, the occupants of which report directly to the applicant as Legal Counsel.
  1. [11]
    On 17 May 2018 the applicant was handed a letter of the same date in a meeting with Mr Keyes and Mr Galluccio (the respondent's Executive Director of Human Resources and Engagement).  The letter included statements to the effect that:
  1. (a)
    the respondent had "received a number of complaints against" the applicant;
  2. (b)
    preliminary investigations into the complaints had "raised significant matters that go to the issue of the proper and efficient management" of the respondent; and
  3. (c)
    the applicant's employment was suspended with effect from 17 May 2018 until the respondent "has determined what further action is appropriate, including any management or disciplinary action".
  1. [12]
    The applicant disputed the suspension decision by way of a letter to Mr Keyes dated 22 May 2018.  However, on 25 May 2018, Mr Keyes rejected the applicant's complaints and confirmed the suspension.
  1. [13]
    By letter dated 27 June 2018 (received by the applicant on 29 June 2018), Mr Galluccio advised the applicant that the respondent had commissioned an investigation "into allegations about your conduct in the workplace" and that the Investigator, Ms Corlia Roos, had spoken with "relevant witnesses" and reviewed documentation.  The letter included statements to the effect that:
  1. (a)
    if "the allegations against you have been substantiated, THHS may consider commencing a disciplinary process against you".
  2. (b)
    the applicant was requested to attend an interview with Ms Roos on 10 July 2018, and the applicant should "allow at least four hours for the interview".
  1. [14]
    Enclosed with Mr Galluccio's letter was a document titled "Confidential - Allegations concerning Shannan Zink".
  1. [15]
    On 3 July 2018, the applicant emailed Mr Galluccio to say that she would not have sufficient time to prepare for an interview on 10 July 2018.  Mr Galluccio responded on 10 July 2018, advising that the interview would take place on 23 July 2018.
  1. [16]
    On 23 July 2018, the applicant attended for the interview with Ms Roos.  The applicant submitted to Ms Roos a letter dated 23 July 2018, in which it was contended that it was inappropriate for the applicant to be required to respond to the allegations until after she was given certain information (including all documentation and witness statements obtained in relation to the investigation).
  1. [17]
    Amongst other things, it became apparent to the applicant during the interview that Ms Roos had possession of a number of witness statements.  However, Ms Roos did not give copies of those statements to the applicant.
  1. [18]
    On 6 August 2018, Mr Galluccio wrote to the applicant and, amongst other things, asserted that the applicant had been "unwilling" to respond to each of the allegations.  The letter included statements to the effect that:
  1. (a)
    Mr Galluccio was "of the view that you have been given sufficient information to answer questions put to you by Ms Roos ... and to respond to the Allegations".
  2. (b)
    Mr Galluccio was, however, "prepared to provide you with relevant extracts of five witness statements that have been prepared to date ... and five documents referred to therein".
  1. [19]
    The witness statements enclosed with the letter were from employees of the Respondent:  Ms Hall, Ms Haley, Ms Gianoulis, Ms Grant, and Ms Minchio.  Significant parts of those statements had been redacted or "blacked out".
  1. [20]
    Mr Galluccio's letter of 6 August 2018 gave the applicant "an opportunity to attend a further interview with Ms Roos" on 24 August 2018 or, alternatively, to provide a written response or submissions by 20 August 2018.
  1. [21]
    On 21 August 2018, the applicant provided a medical certificate to the respondent.
  1. [22]
    On 31 August 2018, the applicant retained solicitors and (through them) sought from Mr Galluccio further time to respond to the allegations.  The applicant's solicitors also requested further information (including unredacted copies of the witness statements).
  1. [23]
    On 10 September 2018, Mr Galluccio wrote to the applicant's solicitors.  That letter again asserted that the applicant had been provided with "sufficient information" to enable her to respond to the allegations and refused to provide unredacted copies of the witness statements.  The letter advised that the recording of the applicant's interview with Ms Roos would be provided and that a "two week extension" was granted (i.e. until 24 September 2018).
  1. [24]
    On 24 September 2018, the applicant (through her solicitors) requested an extension until 13 October 2018 due to health issues.  On 25 September 2018, Mr Galluccio granted an extension until 12 October 2018.
  1. [25]
    On 12 October 2018, the applicant (through her solicitors) wrote to Mr Galluccio and provided a statement in response to the allegations, along with supporting material.  The cover letter repeated the applicant's request for disclosure of the unredacted witness statements and other relevant material.
  1. [26]
    On 19 October 2018, the Respondent (through its solicitors) wrote to the applicant's solicitors acknowledging receipt of the applicant's response to the allegations.  In that letter, it was asserted that the witness "statements were redacted to remove superfluous information and to protect the health and safety of the interviewees".  No further material was disclosed.
  1. [27]
    On 2 November 2018, the Respondent (through its solicitors) again wrote to the applicant's solicitors.  That letter included advice that:
  1. (a)
    the respondent was willing to provide the applicant with remote access to her work email account and electronic files "to facilitate any final responses" she might be able to provide in relation to some of the allegations.
  2. (b)
    any further response was to be provided by 16 November 2018.
  1. [28]
    On 16 November 2018, the applicant (through her solicitors) wrote to the respondent's solicitors.  That letter reiterated the complaint about the applicant not having been provided with unredacted copies of the witness statements.  The letter also enclosed a supplementary statement from the applicant following the access that had been granted to her work emails.
  1. [29]
    On 7 December 2018, the respondent (through its solicitors) acknowledged receipt of the applicant's supplementary statement and invited the applicant to attend a further interview with Ms Roos.
  1. [30]
    On 12 December 2018, the applicant (through her solicitors) requested a copy of any document containing the questions Ms Roos intended to ask at the interview.  The respondent's solicitors advised that there was no specific list of questions.
  1. [31]
    On 13 December 2018, the applicant attended a further interview with Ms Roos (accompanied by her solicitor).  During that interview, it became apparent that since the first interview Ms Roos had interviewed two more witnesses (Mr Keyes and Ms Kelly).  Ms Roos did not provide copies of any statements or records of interview of those witnesses, but said: "they're just witnesses in the matter, not complainants".
  1. [32]
    Later on 13 December 2018, the applicant (through her solicitors) wrote to the Respondent asking for details of all witnesses and copies of all witness statements or interviews (including those of Mr Keyes and Ms Kelly).
  1. [33]
    On 18 December 2018, the respondent (through its solicitors) confirmed to the applicant that Ms Roos had interviewed Mr Keyes and Ms Kelly in addition to the five witnesses whose redacted statements had already been provided.  The letter declined to provide statements from Mr Keyes and Ms Kelly, asserting that those witnesses "did not raise any new allegations".
  1. [34]
    On 3 January 2019, the applicant (through her solicitors) renewed her request for disclosure of the records of interview of Mr Keyes and Ms Kelly.  The letter also asked the respondent to advise whether the other witnesses had participated in any supplementary interviews.
  1. [35]
    On 14 January 2019, Mr Galluccio issued a show cause notice to the Applicant.  Amongst other things, that letter:
  1. (a)
    advised that Ms Roos' investigation had concluded and a report had been prepared "based on careful consideration of all evidence concerning the allegations made about your conduct, including your oral and detailed written submissions and the interviews conducted with the complainants and witnesses".
  2. (b)
    provided access (by way of an online 'link') to Ms Roos' report dated 9 January 2019 (the Investigation Report) and stated that "Full particulars of the allegations are those which are indicated as 'substantiated' in the report".  The letter also set out a "summary" of the allegations.
  3. (c)
    stated that there was only a limited waiver of legal privilege over the content of the Investigation Report and that "privilege has not been waived over the terms of reference of the investigation".
  4. (d)
    under the heading "Proposed Disciplinary Grounds", advised that Mr Galluccio would be the decision maker for the matter.
  5. (e)
    stated that the applicant had "a period of fourteen (14) calendar days from the date of this letter to show cause why I should not be reasonably satisfied that you are liable to be disciplined in relation to the above allegations".
  1. [36]
    The Investigation Report was over 100 pages plus lengthy attachments.  The Investigation Report stated that it was attaching the Terms of Reference, but it did not in fact do so.
  1. [37]
    Amongst other things, the Investigation Report:
  1. (a)
    Noted that Ms Roos had been "engaged for the purpose of independently conducting a fact finding investigation and reporting on the circumstances which relate to the allegations" and specifically referred to written complaints from Ms Hall, Ms Minchio and Ms Grant.
  2. (b)
    Expressed significant adverse views about the applicant's credibility.
  3. (c)
    Stated that Ms Roos had made findings on the balance of probabilities and had found thirteen allegations substantiated;  nine allegations substantiated in part;  and insufficient evidence to substantiate three allegations.
  4. (d)
    Identified that Ms Roos had initially been provided with three draft statements (from Ms Hall, Ms Minchio, and Ms Haley) but had ultimately interviewed eight employees (including the applicant).  The Report identified six complainants:  Ms Haley, Ms Hall, Ms Grant, Ms Minchio, Ms Gianoulis, and Ms Kelly.
  1. [38]
    On 22 January 2019, the applicant (through her solicitors) wrote to the Respondent.  In that letter, she sought an extension until 28 February 2019 to respond to the show cause notice.  The letter enclosed a medical certificate.
  1. [39]
    On 24 January 2019, the respondent (through its solicitors) stated that it was willing to allow an extension until 11 February 2019 for any response from the applicant.
  1. [40]
    On 7 February 2019, the applicant submitted a grievance to Mr Galluccio regarding his show cause notice and related issues.  On 8 February 2019, the Respondent (through its solicitors) agreed to maintain the status quo pending resolution of the grievance.
  1. [41]
    On 26 February 2019, the respondent (through its solicitors) gave the applicant:
  1. (a)
    A letter from Mr Galluccio requiring a response to his show cause letter by 1 March 2019.
  2. (b)
    A letter from Mr Stephen Eaton (the respondent's Chief Operating Officer) stating he had "conducted a thorough investigation into your grievance" and determined that the grievance was not substantiated.
  1. [42]
    On 27 February 2019, the applicant filed the present Notice of Industrial Dispute.  By way of correspondence between the parties, the respondent agreed to suspend the disciplinary process "until further notice".

The suspension decisions

  1. [43]
    The first suspension decision was made on 17 May 2018 by Mr Keyes.  That decision was made under s 137 of the Public Service Act 2008 (the PS Act), purportedly on the basis that Mr Keyes held a "reasonable belief that the proper and efficient management of the Legal Unit of THHS may be prejudiced if you remain in your current position".  The applicant submitted:
  1. (a)
    Mr Keyes acted unreasonably by failing to give the applicant procedural fairness or any advance notice of the suspension.
  2. (b)
    Mr Keyes acted unreasonably by failing to give the applicant any advance notice of the purpose of the meeting of 17 May 2018, and failing to give the applicant any opportunity to have a support person present at that meeting.
  3. (c)
    At the time of making the first suspension decision, there were no sufficient grounds for Mr Keyes to reasonably believe that "the proper and efficient management of the department might be prejudiced if the officer is not suspended" as required by s 137(1) of the PS Act.  The Commission should find that there were no such grounds.
  4. (d)
    At the time of making the decision, Mr Keyes did not fully or properly "consider all alternative duties that may be available for the officer to perform" as required by s 137(3) and did not "indicate alternative duties which were considered and why they were deemed unworkable" as required by Clause 3 of the HR Policy E14.  The Commission should find that there were reasonable alternative duties that the Applicant could have performed (including legal or administration work from home or from an alternative workplace, or duties in the Patient Safety Office).
  5. (e)
    In making the decision, Mr Keyes imposed a suspension of indefinite or indeterminate length contrary to s 137(2)(a) and Clause 3 of the HR Policy E14.
  1. [44]
    The second suspension decision was made on 14 January 2019 by Mr Galluccio.  That decision was made under s 189 of the PS Act, purportedly on the basis that he reasonably believed the applicant was liable to discipline under a disciplinary law.  The applicant will submit that:
  1. (a)
    At the time of making the decision, there were no sufficient grounds for Mr Galluccio to reasonably believe that "the employee is liable to discipline under a disciplinary law" as required by s 189(1) of the PS Act.  The Commission should find that there were no such grounds.
  2. (b)
    At the time of making the decision, Mr Galluccio did not fully or properly "consider all alternative duties that may be available for the employee to perform" as required by s 189(2) and did not "indicate alternative duties which were considered and why they were deemed unworkable" as required by clause 3 of the HR Policy E14.  The Commission should find that there were reasonable alternative duties that the applicant could have performed (including legal or administrative work from home or from an alternative workplace, or duties in the Patient Safety Office).
  3. (c)
    In making the decision, Mr Galluccio imposed a suspension of indefinite or indeterminate length contrary to s 137(2)(a) and clause 3 of the HR Policy E14.
  1. [45]
    The applicant submits that the Commission should find both suspension decisions were made contrary to law and policy;  were unreasonable or without reasonable grounds;  and should be set aside.

The Investigation Report

  1. [46]
    The applicant submitted that it would be unfair and unreasonable for any disciplinary decision maker to rely on the Investigation Report prepared by Ms Roos, and so the Report should be excluded from consideration in any future disciplinary process.
  1. [47]
    Relevantly, the Investigation Report included the following features:
  1. (a)
    The Report included the Investigator's comments and concerns about the applicant's level of cooperation without recognising or giving due regard to the applicant's right to dispute issues involving procedural fairness.
  2. (b)
    The Report expressed the Investigator's opinions, in a forceful way, in relation to matters such as the credibility of witnesses and the likelihood of events.
  3. (c)
    The Report went beyond merely compiling the facts and evidence, and extended to including the Investigator's conclusions about whether various actions were appropriate or reasonable, thereby not merely making findings of fact but purporting to determine the proper characterisation of those facts.
  4. (d)
    The Report expressed the Investigator's opinions as to the ultimate conclusions to be reached by the decision-maker; namely whether certain allegations were or were not substantiated.
  5. (e)
    Many of the Investigator's findings, opinions, conclusions and characterisations of fact were adverse to the applicant.
  1. [48]
    The Investigation Report and its contents came about in circumstances where (prior to the issue of the Investigation Report):
  1. (a)
    The applicant was not provided with a copy of the Investigator's letter of engagement or terms of reference.
  2. (b)
    The applicant was not provided with copies of the original or subsequent complaints.
  3. (c)
    The applicant was not given adequate particulars of the complaints prior to being required to attend an interview with the Investigator.
  4. (d)
    The applicant was not provided with copies of all evidence available to the Investigator, including:
  1. (i)
    The statements from Ms Hall, Ms Grant, Ms Minchio, Ms Haley and Ms Gianoulis (the applicant having only been given redacted copies).
  2. (ii)
    Statements or records of interview in respect of Mr Keyes and Ms Kelly.
  3. (iii)
    Any further statements or records of interview in respect of witnesses interviewed after submission of the applicant's written response (including Ms Grant, Ms Michio, Ms Haley and Ms Gianoulis).
  1. (e)
    The applicant was not provided with a transcript of her interview of 13 December 2018.
  2. (f)
    The applicant was only given limited access to relevant records from the workplace.
  3. (g)
    The applicant was expressly told by the Investigator that Ms Kelly was not a complainant, even though the Investigation Report subsequently classified Ms Kelly as a complainant.
  1. [49]
    It is further submitted that a reasonable, objective observer would perceive the Investigator to have demonstrated a pre-judgment of the applicant's cooperativeness or credibility; including because:
  1. (a)
    After the first interview between Ms Roos and the applicant, Ms Roos told Mr Galluccio that the applicant had been "unwilling" to answer any of her questions when that was not a fair characterisation of events.
  2. (b)
    During the second interview between Ms Roos and the applicant, Ms Roos described Ms Kelly as only being a witness, not a complainant, but then without further notice to the applicant classified Ms Kelly as a complainant in the Investigation Report.
  3. (c)
    During that second interview, Ms Roos through her words and tone of voice, conveyed that she was unhappy with the applicant and that (in Ms Roos's opinion) at least part of the applicant's statement was not "an accurate description".
  1. [50]
    For those reasons, it is submitted that it would be unfair and unreasonable for any decision maker to rely on the Investigation Report for the purposes of any disciplinary process under the PS Act.  The findings, conclusions and opinions expressed in the Report have the real potential to unfairly prejudice or influence a decision maker against the applicant.

The Show Cause decision

  1. [51]
    On 14 January 2019, Mr Galluccio's show cause letter advised the applicant that he had delegated authority for the purposes of dealing with her matter.  He set out a summary of eight allegations but said "Full particulars of the allegations are those which are indicated as 'substantiated' in the" Investigation Report.  Mr Galluccio said that he had "independently reached the view that as a result of your conduct, if proven, you may be subject to disciplinary action".  He went on to say, when dealing with suspension, that:  "I reasonably believe that you are liable to discipline under a disciplinary law".
  1. [52]
    Mr Galluccio's letter expressly stated that he intended to consider the Investigation Report when assessing the alleged conduct.  He advised the applicant that she had 14 days to respond, failing which he would make a decision without her response.
  1. [53]
    The applicant submits that Mr Galluccio's show cause decision is unfair and unreasonable, because:
  1. (a)
    In making the decision, Mr Galluccio relied on the Investigation Report (which, for the reasons set out above, should not have been relied upon).
  2. (b)
    Mr Galluccio made no effort to exclude from the process prejudicial information that was not part of the allegations being advanced, including in relation to the various allegations that were not substantiated in the Investigation Report.
  3. (c)
    The show cause decision required the applicant to respond to ambiguously framed allegations, because it referred to the allegations as being "those which are indicated as 'substantiated' in the" Investigation Report without identifying whether the allegations described as substantiated in part were to be included in that reference.
  4. (d)
    The show cause decision required the applicant to respond to allegations made against her without disclosure of the material referred to in the Investigation Report.
  5. (e)
    Before issuing the show cause notice, Mr Galluccio failed to fully or properly "consider whether management action could more appropriately address the concern" as required by clause 2 of HR Policy E10.
  1. [54]
    Further, the applicant submitted that an objective observer would reasonably apprehend that Mr Galluccio might not bring an impartial mind to the resolution of any disciplinary matters regarding the applicant, because:
  1. (a)
    Mr Galluccio had a close and continuing involvement in the process and investigation, right from the start when the first suspension decision was made on 17 May 2018 (and including being the 'point of contact' during the suspension).
  2. (b)
    During the investigation process, Mr Galluccio formed a view adverse to the applicant because he believed she had attended an interview with Ms Roos "unwilling to respond to each of the Allegations".
  3. (c)
    During the investigation process, Mr Galluccio formed a view adverse to the applicant because he considered that "she failed to engage in the process and refused to answer Ms Roos' questions".
  4. (d)
    During the investigation process, Mr Galluccio expressed disappointment with the applicant's conduct in part because of his view that it inconvenienced Ms Roos who "had travelled to Townsville from Brisbane specifically to interview you".
  5. (e)
    Mr Galluccio had access to evidence and statements which have not been disclosed to the applicant.
  6. (f)
    Mr Galluccio repeatedly refused to grant the applicant access to the full witness statements that are available.
  7. (g)
    When Mr Galluccio granted an extension of time on 25 September 2018, he peremptorily determined that there would "be no further extensions" thereby prejudging that question and precluding any fair assessment of future circumstances.
  8. (h)
    Mr Galluccio has already formed a belief that the applicant is liable to disciplinary action.
  1. [55]
    Finally, the applicant submitted that Mr Galluccio is not an appropriate delegate to take on the role of decision maker in the disciplinary process having regard to matters set out in the preceding paragraph and because Mr Galluccio is a subordinate employee to one of the witnesses in the disciplinary process (i.e. Mr Keyes).
  1. [56]
    The applicant seeks orders as set out in paragraph [5] above. (References to specific documents omitted)

Respondent's outline of submissions

  1. [57]
    The respondent also provided written submissions (dated 26 July 2019) prior to the commencement of the evidentiary phase of the hearing.

Overview

The Dispute

  1. [58]
    Pursuant to s 261 of the IR Act the Notifier, Shannan Zink gave notice to this Commission of an industrial dispute concerning her employment with the respondent, THHS.
  1. [59]
    The dispute arises out of a formal grievance made by Ms Zink under clause 7.2(b) of the Hospital and Health Services General Employees Queensland Health Award State 2015 (the Award).  That grievance and this dispute concerns the following actions taken by THHS:
  1. (a)
    a decision by the chief executive of THHS pursuant to s 137(1) of the PS Act to suspend Ms Zink's employment (as Legal Counsel) with THHS;
  2. (b)
    an investigation conducted on behalf of THHS into complaints made against Ms Zink by her co-workers in the legal unit at THHS and the report of that Investigator into those complaints;
  3. (c)
    a decision by the chief executive's delegate to issue a show cause notice to Ms Zink in respect of those complaints which the Investigator had found there was sufficient evidence to substantiate in whole or in part;
  4. (d)
    a decision by the chief executive's delegate pursuant to s 189 of the PS Act to suspend Ms Zink's employment with THHS.
  1. [60]
    In broad summary, Ms Zink complains (as set out in her grievance) that each of the above actions were taken contrary to the PS Act, certain workplace policies and/or involved a denial of natural justice or procedural fairness.

The statutory framework for the employment of health service employees

  1. [61]
    THHS is a prescribed Hospital and Health Service.[4]  Pursuant to s 20 of the Hospital and Health Boards Act 2001 (Qld) (the HHB Act), THHS may employ health service employees.  It is pursuant to that power that THHS employs Ms Zink as a health service employee in the position of Legal Counsel.
  1. [62]
    Section 69 of the HHB Act provides that a health service employee is employed under that Act and not under the PS Act.  However, s 66 of the HHB Act provides that the conditions of employment for a health service employee includes 'the applied Public Service law'.  As a consequence of s 23 of the PS Act and Clause 4 of Schedule 3 to the Public Service Regulation 2018, the following sections of the PS Act apply to Ms Zink's employment and arise for consideration in this dispute:  s 137 (contained in Chapter 5 which deals with staffing generally) and ss 187, 188, 189 and 190 (contained in Chapter 6 which deals with disciplinary action).
  1. [63]
    The Code of Conduct of the Queensland Public Service 2011 (Code of Conduct), and some Department of Health workplace policies also apply to Ms Zink's employment.

The s 137 suspension decision

  1. [64]
    Section 137 is contained in Part 4 of Chapter 5 of the PS Act.  Chapter 5 is headed 'Staffing Generally'.  Part 4 is headed 'Termination, Suspension and Related Matters'.
  1. [65]
    Mr Kieran Keyes (Mr Keyes), in his capacity as chief executive of THHS, made a decision, pursuant to s 137(1) of the PS Act, to suspend Ms Zink from duty (the s 137 suspension decision).  The suspension was on normal remuneration.
  1. [66]
    Mr Keyes communicated his s 137 suspension decision to Ms Zink orally at a meeting he had with her on 17 May 2018 and by letter dated 17 May 2018 (the suspension letter).
  1. [67]
    Ms Zink's employment is no longer suspended under s 137.  That suspension came to an end when the decision was made on 14 January 2019 (by Mr Keyes' delegate) to suspend her employment under s 189 of the PS Act.

The s 137 suspension decision was not contrary to law or policy

  1. [68]
    Ms Zink complains that the s 137 suspension decision is flawed as it was contrary to law or policy because:
  1. (a)
    Mr Keyes did not have a reasonable basis for his belief that the proper and efficient management of the department might be prejudiced if her employment was not suspended;
  2. (b)
    the suspension letter did not provide a date when the suspension would end contrary to s 137(2) of the PS Act and Clause 3 of the Department of Health's HR Policy E14 - Suspension of Employees (Policy E14);
  3. (c)
    Mr Keyes did not consider all alternative duties that may be available for Ms Zink to perform as required by s 137(3) of the PS Act nor consider the matters at Clause 2 of Policy E14;
  4. (d)
    Mr Keyes did not monitor the suspension or otherwise consider the factors at Clause 8 of Policy E14.
  1. [69]
    Policy E14, as it applied in May 2018, did not apply to a prescribed hospital and health service.[5]  Accordingly, Mr Keyes was not obliged to follow any of the requirements in Policy E14 in making his decision under s 137.
  1. [70]
    As to the basis for his belief, Mr Keyes states in the suspension letter that preliminary investigations have raised 'significant matters that go to the issue of the proper and efficient management of THHS'.  In his statement of evidence, Mr Keyes explains the basis for his belief that the proper and efficient management of the legal unit might be prejudiced if Ms Zink's employment were not suspended.  His evidence demonstrates that he had the requisite reasonable belief and his basis for that belief.  It is submitted, that on the evidence, there is no basis upon which the Commission could conclude that Mr Keyes did not hold the requisite statutory belief in coming to his decision.
  1. [71]
    It is accepted that the suspension letter did not provide a specific date upon which the suspension would end.  Subsection 137(2)(a) requires that the notice must state when the suspension 'starts and ends'.  It does not, however, require that this be expressed as a specific date.  The suspension letter states that the suspension 'unless otherwise advised, will end once THHS has determined what further action is appropriate, including any management or disciplinary action'.  This is to be read in the context of what Mr Keyes said to Ms Zink at the meeting on 17 May 2018 that there would be an investigation into the complaints that had been made and in a letter dated 25 May 2018 from Mr Keyes to Ms Zink in which he stated that ' … the length of your suspension will be determined by the duration of the investigation and its outcome'.  It is submitted that this is sufficient to satisfy the requirement in s 137(2)(a).
  1. [72]
    The suspension letter states that Mr Keyes considered all alternative duties that might have been available for Ms Zink to perform.  Specifically, Mr Keyes states that 'all alternative duties that may be available to you to perform were considered but none were identified that are commensurate to your salary and skill level and within a reasonable driving distance of your place of residence'.  Further, in his statement, Mr Keyes explains how he came to make that determination.  It is submitted that Mr Keyes has discharged the obligation in s 137(3) to consider all alternative duties that may have been available for Ms Zink to perform before making his suspension decision.

The s 137 suspension decision did not require procedural fairness

  1. [73]
    Ms Zink complains that the s 137 decision is flawed because she was not afforded natural justice or procedural fairness in the manner in which the decision was reached because she was:
  1. (a)
    not afforded an opportunity to respond to any proposal to suspend her employment prior to the employment being suspended;
  2. (b)
    was not provided with the basis in evidence or any allegations said to provide the basis for the chief executive's belief that the proper and efficient management of the department might be prejudiced if her employment were not suspended;
  3. (c)
    not advised of any date when the suspension would end or be reviewed;
  4. (d)
    not aware of, nor given any opportunity to participate in or respond to, the matters raised in the preliminary investigation referred to in the suspension notice;
  5. (e)
    not advised that she could have a support person present at the meeting in which the suspension was communicated to her.
  1. [74]
    The suspension letter informed Ms Zink that THHS had received a number of complaints alleging breaches of Human Resources policies including, but not limited to, the Workplace Harassment Human Resources Policy (E13).  In the meeting on 17 May 2018, Mr Keyes explained that there were complaints from more than one complainant and that the complaints were serious.  One of the complainants was identified by name.  To that extent, Ms Zink was made aware of the nature of the allegations that had been made against her.
  1. [75]
    THHS otherwise accepts that the steps set out in [72](a), (b), (d) and (e) above were not taken when suspending Ms Zink's employment pursuant to s 137.  (As to specifying the end date of the suspension, this is dealt with above).
  1. [76]
    However, THHS submits that there is no requirement to afford natural justice in suspending employment under s 137.
  1. [77]
    As noted above, s 137 is contained in Chapter 5 of the PS Act which is concerned with 'staffing generally'.  The heading to s 137 is 'suspension other than as disciplinary action'.
  1. [78]
    The Explanatory Memorandum to the Public Service Bill 2008 explains that s 137 provides flexibility for a chief executive to suspend from duty for non-discipline reasons and that the clause does not require adherence to natural justice as the employee retains the benefit of normal remuneration and continuity of employment.[6]
  1. [79]
    This is to be contrasted with the power to suspend under Chapter 6 of the PS Act which concerns disciplinary action.  Section 189, which is contained in Chapter 6, is headed 'Disciplinary action for public service employees and former public service employees'.  Under s 189, the Chief Executive may suspend an employee if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.  Section 190, which deals with procedure for disciplinary action, expressly provides that natural justice is not required where a suspension is on normal remuneration: s 190(2).
  1. [80]
    Reading together the two powers of suspension in the PS Act, and having regard to the purpose of s 137 as referred to in the Explanatory Memorandum, it would be inconsistent with parliament's intention to conclude that a suspension under s 137 - which is on normal remuneration - requires natural justice whilst a disciplinary suspension under s 189 on normal remuneration does not.
  1. [81]
    Were that submission not accepted, it does not follow that THHS would have been required to take each of the steps Ms Zink asserts should have been taken.  What is required to discharge an obligation of procedural fairness depends upon the nature of the power being exercised, the way in which the exercise of that power affects a person's rights and interests, the context of the decision making power in question including the part it has in the overall decision making process.  The enquiry is always whether overall it can be said that a practical injustice has occurred.[7]  Relevant to that assessment, in the context of a s 137 decision, those matters would include:
  1. (a)
    the purpose of which s 137 gives a chief executive power to suspend employment;
  2. (b)
    the statutory context including that a s 137 suspension is not a suspension as part of a disciplinary process;
  3. (c)
    that the PS Act expressly sets out what is required in the making of a s 137 decision and that those steps have been complied with; and
  4. (d)
    in the context of the broader process overall there has been an opportunity to be heard and no practical injustice has occurred.[8]
  1. [82]
    Having regard to each of those matters, THHS submits if there were an obligation to afford procedural fairness (which is disputed) there has been no denial of procedural fairness.

The investigation and Investigator's report

  1. [83]
    Soon after the s 137 suspension decision, an independent Investigator was appointed to conduct an investigation.  That investigation was conducted and the Investigator concluded her investigation with a written report.  The Investigator made findings (set out in the report), on the balance of probabilities, that there was sufficient evidence to substantiate a number of the allegations that had been made against Ms Zink by her coworkers and which had been the subject of her investigation.
  1. [84]
    In summary, by reference to the grievance, Ms Zink alleges that:
  1. (a)
    the investigation was not conducted according to law and policy;
  2. (b)
    during the investigation she was denied procedural fairness; and
  3. (c)
    she was not afforded procedural fairness in the manner in which the decisions, findings or recommendations in the report were reached.
  1. [85]
    Ms Zink claims that on these bases the investigation and the report are so flawed that THHS should not have relied upon them in making the show cause decision or the s 189 suspension decision which followed from the consideration of the report by the chief executive's delegate.  THHS rejects these claims and submits that the investigation was conducted and the report was prepared according to law and policy and that Ms Zink has been afforded procedural fairness.

Overview of the appointment of an independent Investigator, the investigation and the Investigation Report

  1. [86]
    At the meeting on 17 May 2018, Mr Keyes told Ms Zink that an investigation would be commenced immediately.
  1. [87]
    Ms Corlia Roos of Q Workplace Solutions (QWS) was appointed to conduct the independent investigation on or about 24 May 2018.  Ms Roos is an experienced Workplace Investigator.
  1. [88]
    Ms Roos outlines the process of her investigation in her report and in her statement of evidence.  In summary, that process involved:
  1. (a)
    interviewing eight employees of THHS over the period from 29 May 2018 to 19 December 2018 (five (sic) of whom made complaints about Ms Zink's workplace conduct and are referred to by her as the complainants);
  2. (b)
    preparing a written list of the 25 allegations the complainants had made against Ms Zink about her conduct in the workplace and providing (through THHS) that written list of allegations to Ms Zink on 27 June 2018 (the allegations);
  3. (c)
    interviewing Ms Zink (with her support person) about some of the allegations in a face to face interview with her at THHS on 23 July 2018;
  4. (d)
    preparing signed statements of the complainants' evidence.  Ms Roos explains that she redacted parts of those statements which were about matters not within the scope of her investigation;
  5. (e)
    receiving and reading two written submissions from Ms Zink dated 12 October 2018 and 16 November 2018 in response to the allegations and the complainants' statements (which had been provided, in their redacted form, to Ms Zink by THHS on 6 August 2018);
  6. (f)
    interviewing two witnesses on 10 December 2018 and preparing written statements of their evidence;
  7. (g)
    conducting a further interview with Ms Zink by telephone on 13 December 2018;
  8. (h)
    receiving documents from THHS, the complainants and witnesses and asking Ms Zink questions about those documents where relevant.
  1. [89]
    During the course of the investigation:
  1. (a)
    on 6 August 2018, THHS provided Ms Zink with copies of the complainants' statements (as redacted by Ms Roos) and the five documents referred to in those statements;
  2. (b)
    on 10 September 2018, THHS provided Ms Zink with a link to access the recording of her interview with Ms Roos on 23 July 2018;
  3. (c)
    on 2 November 2018, THHS provided Ms Zink with access to her email account and electronic files for a period of one week.
  1. [90]
    Also, during the course of the investigation, Ms Zink asked for a number of extensions of time within which to provide her responses.  These extensions were granted.
  1. [91]
    After concluding her investigation, Ms Roos prepared a written report, which she delivered on 9 January 2019.
  1. [92]
    The written report (and attachments) was provided to Ms Zink on 14 January 2019 under cover of the show cause letter from the chief executive's delegate (Mr Galluccio) to Ms Zink.

The investigation was conducted in a way which was procedurally fair

  1. [93]
    Whether a person has been afforded procedural fairness depends upon the facts and circumstances of each particular case, i.e.[9]:
  1. (a)
    the nature of the interest affected and the way in which that interest is affected;
  2. (b)
    the nature of the inquiry;
  3. (c)
    the subject matter; and
  4. (d)
    the rules under which the decision maker is acting.
  1. [94]
    In assessing these factors, the process in its entirety, particularly where a decision making process involves different steps or stages before a final decision is made, should be considered.[10]
  1. [95]
    The investigation conducted by Ms Roos was a fact finding investigation.  The investigation is not itself a step in the disciplinary process provided for in Chapter 6 of the PS Act.[11]  It was a step in a broader process which may or may not have resulted in the commencement of a disciplinary process under Chapter 6 of the PS Act.  This was explained to Ms Zink at the commencement and during the course of the investigation.  Mr Galluccio also reiterated this in the show cause letter when he described the investigation as 'a fact finding investigation' and, goes on to say that 'no determination [by him] of your liability has been made, or will be made, in relation to the allegations until you have had had an opportunity to respond'.
  1. [96]
    In the context of a fact finding investigation, THHS submits that Ms Zink was given a sufficient and reasonable opportunity to respond to all of the allegations and to put anything she wished to the Investigator relevant to her interests.  There was no unfairness or practical injustice caused by any of the matters of which Ms Zink complaints in her grievance.
  1. [97]
    Procedural fairness did not require (as is alleged) that Ms Zink:
  1. (a)
    be provided with a copy of the Investigator's terms of reference.  It was sufficient that she was told what was being investigated and, that the investigation process was explained to her;
  2. (b)
    be provided with copies of the original complaints or be told the names of the original complainants.  The list of allegations provided to Ms Zink identified the complainants.  During the course of the investigation, Ms Zink was provided with copies of the complainants' redacted statements;
  3. (c)
    be provided with unredacted copies of the complainants' statements.  Procedural fairness requires that a person have the opportunity to respond to credible, relevant and significant material that will be relied upon by the decision maker.[12]  Whether procedural fairness requires a person to be given unredacted copies of witness statements depends on whether that is necessary to enable the person to address or rebut prejudicial information that will be relied upon by the decision maker.[13]  Here, the redactions contained material not relevant to the investigation; and, as such, the redacted material was not relied upon by the Investigator whose investigation concerned the listed allegations.  The redacted material will not be relied upon by Mr Galluccio;
  4. (d)
    be provided with a copy of the transcript of her interview with the Investigator on 13 December 2018 before Ms Roos finalised her report;
  5. (e)
    be provided with recordings and transcripts of further discussions Ms Roos had with complainants after Ms Zink submitted her second written response, in circumstances where Ms Zink had been given a reasonable opportunity to address issues relevant to her interests.
  1. [98]
    Further, there was no failure to afford procedural fairness by reason of the fact that Ms Zink was not provided with copies of the statements of the witnesses (Mr Keyes and Ms Kelly) prior to the report being concluded because any relevant matters arising from Ms Roos' discussions with those witnesses were put by her to Ms Zink in their telephone conversation on 13 December 2018.
  1. [99]
    THHS did not, as alleged, demand that Ms Zink respond to allegations whilst being under a medical incapacity.  As noted above, Ms Zink sought extensions of time to agreed dates on the basis of medical incapacity and extensions were granted to accommodate Ms Zink's requests.
  1. [100]
    There is no evidence, having regard to Ms Roos' report, to support Ms Zink's allegation that she (Ms Roos) was biased or that a hypothetical fair minded observer would not apprehend a lack of impartiality on Ms Roos' part.  Nor can a fair reading of the report support the allegations that Ms Zink makes about Ms Roos' findings of credibility (as to her evidence or that of the complainants) or the views that she expressed about Ms Zink's co-operation during the investigation.
  1. [101]
    Overall, Ms Zink was given sufficient detail of the allegations, the evidence of those making the allegations and any relevant documents in order to answer the allegations.  Ms Zink was given the opportunity to respond to the allegations in two meetings with Ms Roos and in two written submissions, was given copies of the complainants' statements (in their redacted form) prior to making those written submissions and had access (for a period of time) to her emails and electronic files for the purpose of putting to Ms Roos any information or documents that Ms Zink determined to be relevant.
  1. [102]
    Many of the other allegations that Ms Zink makes about the findings in the report do not go to issues of procedural fairness but to the substantive outcome of the investigation and her disagreement with Ms Roos' findings of fact.  These are, of course, all matters upon which she can make submissions to Mr Galluccio in response to the show cause letter.

The Disciplinary Process:  The Show Cause Letter

The statutory provisions and relevant policy

  1. [103]
    Chapter 6 of the PS Act provides for 'Disciplinary action for public service employees and former public service employees'.  The sections in Chapter 6 of relevance are ss 187, 188, 189 and 190.
  1. [104]
    The phrase 'in disciplining' as used in s 190 has been held to refer to both:[14]
  1. (a)
    the decision of a chief executive to take disciplinary action which the chief executive considers reasonable in the circumstances, that is, the action provided for in s 188(1); and
  2. (b)
    the antecedent decision of a chief executive as to whether he or she is reasonably satisfied that particular grounds for discipline exist, those being the grounds set out in s 187.
  1. [105]
    With respect to procedure, s 190 of the PS Act relevantly provides that 'in disciplining' a public service employee a chief executive must comply with the PS Act and the principles of natural justice.  (As discussed below, the principles of natural justice do not apply to a suspension on full remuneration: s 190(2)).
  1. [106]
    Also of relevance to the content of natural justice in the disciplinary process provided for in Chapter 6 of the PS Act is the Department of Health Human Resources Policy E10 (Policy E10).  Policy E10 applies to employees of prescribed hospitals and health services.[15]

The Show Cause Letter

  1. [107]
    Mr Galluccio, as the chief executive's delegate, has not yet made a disciplinary finding decision or a disciplinary action decision i.e. he has not made either of the decisions provided for in ss 187 and 188.  He has issued a show cause letter.
  1. [108]
    Prior to issuing the show cause letter, the assessment contemplated by clause 1 of Attachment 1 to Policy E10 had taken place.  That assessment was that further information needed to be obtained in relation to the complaints that had been made and that this information would be obtained through a fact finding investigation.  That assessment was made by Mr Keyes.  He explains that in light of the potentially serious nature of the complaints he considered it appropriate that a fact finding investigation be commenced and this be undertaken by an external Investigator.  As outlined above, that investigation was conducted in a way which was procedurally fair.
  1. [109]
    Clause 2 of Attachment 1 to Policy E10 provides that when the delegate is satisfied that all relevant documentation is available to them, and they have given careful consideration to the information, they can make a determination on whether they are reasonably satisfied that there may be grounds for discipline under s 187 of the PS Act and whether to commence a disciplinary process.
  1. [110]
    In issuing the show cause letter, Mr Galluccio has complied with Clause 2.  He has considered Ms Roos' report and made the determination required of him.  It is clear from the language used in the show cause letter that Mr Galluccio has not formed the view that the conduct alleged has in fact occurred.  He says that he has reached the view that 'as a result of your conduct, if proven, you may be subject to disciplinary action' and that 'no determination of your liability has been made, or will be made, in relation to the allegations until you have had an opportunity to respond'.
  1. [111]
    The show cause letter identifies which allegations Mr Galluccio will be considering and the provisions of s 187 of the PS Act the conduct alleged would breach if proven.
  1. [112]
    Mr Galluccio has provided to Ms Zink all of the information on which he intends to rely, which is the Investigation Report, as provided to Ms Zink and relevant legislation and policies.  Mr Galluccio, in his statement, confirms that he will only have regard to this information.
  1. [113]
    There is no basis on the evidence (or, at all) to support the allegation that Mr Galluccio has been 'involved' in the investigation such as to support any finding that he may not bring an impartial mind to bear in his decision making.
  1. [114]
    Ms Zink's other grievances regarding the show cause letter seek to pre-empt a failure by Mr Galluccio to afford procedural fairness in respect of decisions he has not yet made in the disciplinary process on a number of bases that cannot be substantiated:
  1. (a)
    that she does not have a copy of the terms of reference:  the 'work required' of the Investigator is set out in the report.  Ms Zink can test the findings of fact made by Ms Roos against those terms of reference in any submissions she wishes to make to Mr Galluccio;
  2. (b)
    that she has not been provided with the complainants' statements in unredacted form:  Mr Galluccio says in his statement that he will be relying on the Investigator's report in the form provided to Ms Zink.  As discussed above, there can be no denial of procedural fairness in not being provided with evidence on which the decision maker does not intend to rely.
  3. (c)
    she has not been provided with any further statements, recordings or transcripts of the complainants' interviews with Ms Ros following the submission of her written response on 12 October 2018:  these too (where such further material exists) are not in the Investigator's report and so will not form part of the evidence considered by Mr Galluccio.  As noted earlier, procedural fairness would not require Ms Zink to have access to recordings and transcripts;[16]
  4. (d)
    an opportunity to test or answer the evidence of Mr Keyes and Ms Kelly:  Ms Zink has that opportunity as their statements are attached to the report.

The Disciplinary Process:  the s 189 suspension

  1. [115]
    Mr Galluccio also decided, pursuant to s 189 of the PS Act, to suspend Ms Zink's employment.  He gave Ms Zink notice of this decision in the show cause letter.
  1. [116]
    Section 190 sets out the procedure for disciplinary action.  Relevantly, s 190(2) provides that natural justice is not required if a suspension is on normal remuneration.  Ms Zink's suspension is on normal remuneration.
  1. [117]
    Also, relevant to the s 189 Suspension Decision is Policy E14.
  1. [118]
    In the grievance, Ms Zink makes a number of complaints about the s 189 suspension decision which cannot be sustained:
  1. (a)
    that Mr Galluccio did not have reasonable basis for his belief that Ms Zink is liable to discipline under a disciplinary law as required by s 189(1):  the submission made in respect of the show cause letter supports a finding that this allegation is not supported on the evidence;
  2. (b)
    the notice did not state when the suspension would end:  the show cause letter provides that the suspension 'will end once THHS has determined what further action is appropriate'.  This is sufficient to comply with the statutory requirement and Policy E14.  In that regard, the submissions made in relation to the s 137 suspension decision apply equally here.
  3. (c)
    Mr Galluccio did not consider all alternative duties that may have been available for Ms Zink to perform in accordance with s 189(2) and clause 2 of Policy E14:  Mr Galluccio explains in the show cause letter and in his statement how he discharged this obligation.
  4. (d)
    any obligation by Mr Galluccio to monitor the suspension or otherwise consider the factors at clause 8 of Policy E14 has in a practical sense been overtaken by the grievance and by this dispute.
  1. [119]
    In conclusion, THHS submits that there are no bases upon which the Commission can set aside any of the decisions made or steps taken by THHS.  Ms Zink now has an opportunity to present any evidence and make any submissions to Mr Galluccio in response to the allegations the subject of the show cause process.  To that end, Ms Zink has been given all of the material upon which Mr Galluccio intends to rely apart from any other material Ms Zink may now choose to put to him. (References to specific documents omitted)

Witnesses

  1. [120]
    The witness for the applicant was Shannan Zink (Zink).
  1. [121]
    The witnesses for the respondent were as follows:

Salvatore Galluccio, (Galluccio) Executive Director HR & Engagement, THHS;

Corlia Roos, (Roos) Workplace Investigator, QWS; and

Kieran Keyes, (Keyes) Chief Executive, THHS.

Applicant

Zink

  1. [122]
    Two affidavits were tendered in the proceedings by Zink who currently occupies the position of Legal Counsel for the respondent albeit having been suspended from the employment firstly since 17 May 2018 and then 14 January 2019 as a consequence of decisions made by the respondent.
  1. [123]
    The role of Legal Counsel has the primary responsibility to provide authoritative and independent strategic legal advice on a range of complex and sensitive matters to the Health Service Chief Executive, the Executive and the respondent's staff with eighty percent of the workload relating to medico-legal matters.
  1. [124]
    On 17 May 2018 pursuant to s 137(1) of the PS Act she was given notice of her impending suspension from duty, absent of any other information.  Advice was given by Keyes, Galluccio and one other that she was required to leave the premises immediately without being provided with a copy of the terms of reference for the investigation or the identity of the person(s) who had made complaints against her.

The suspension notice did not:

  • identify any reason that the proper and efficient management of the department might be prejudiced if there was no suspension;
  • identify any alternative duties (if any) that had been considered for her prior to suspension;
  • identify the end date of the suspension;
  • provide details of or opportunity to respond or participate in matters raised in the preliminary investigation; and
  • afford the opportunity to respond to the suspension of the employment.
  1. [125]
    Zink unsuccessfully disputed her suspension and was advised that:

"no further information or documentation will be provided to you at this stage, other than to reassure you that the length of your suspension will be determined by the duration of the investigation and its outcome".

  1. [126]
    On 29 June 2018 she received written advice regarding an investigation that had been commissioned by the respondent regarding her conduct in the workplace and that the role of the Investigator was to ensure she would be afforded the opportunity to respond to each of the allegations levelled against her.  Attached to the correspondence were details of the allegations that had been made against her and a request that she present for an interview on 10 July 2018, allowing at least four hours for that process.
  1. [127]
    Zink took issue with timelines around the interview and subsequently attended on the new date of 23 July 2018 where she provided the Investigator with correspondence regarding the conduct of the investigation and requested:
  • clarification in relation to the status of the investigation;
  • provision of all documentation, witness statements to be utilised in the investigation; and
  • copy of appointment letter and terms of reference.
  1. [128]
    In the course of the interview she was strongly encouraged to respond to questions, having been reassured by the Investigator that it was a "fact finding investigation only" and she had been engaged to simply determine the truth of the facts.  Despite being extremely reluctant she felt it was in her best interest to respond to the questions.  It became clear during the interview that the Investigator had taken statements from a number of witnesses which were requested by Zink but not forthcoming.  The interview ended when she became extremely distressed about the questions being put to her due to being in shock and to the week prior to the suspension when the office dynamics were really good.
  1. [129]
    On 6 August 2018 she received correspondence under the signature of Galluccio which expressed disappointment on her unwillingness to respond to each allegation, despite being provided with what he suggested was sufficient information to respond.  Nevertheless, the respondent was prepared to provide relevant extracts of five witness statements to her and the opportunity to attend for a further interview or in the alternative provide a written response to the allegations by 5.00 pm on 20 August 2018.  Attached to the correspondence were five witness statements from Hall, Haley, Gianoulis, Grant and Mincho with significant amounts of the information redacted.  This correspondence caused her a great deal of anxiety and notwithstanding repeated requests for the status of the investigation and the provision of all relevant documentation, she was denied access to the documentation.
  1. [130]
    On 31 August 2018 her legal representative wrote to the respondent requesting an extension of the date to respond and detailing information required for Zink to prepare a response, which resulted in the extension being granted, but beyond a copy of the interview material being provided the balance of the request was refused.  A further extension was sought on 24 September 2018 due to ill health and was subsequently granted but not before a Notice of Industrial Dispute was filed in the Commission.
  1. [131]
    On 12 October 2018 she submitted a very comprehensive statement with annexures in response to the allegations which was accompanied by correspondence that alleged:
  • the suspension was unlawful;
  • she had not been provided with access to relevant information (including the original complaints); and
  • that some of the allegations were discriminatory, in that they appeared to be premised on concerns about her mental health.
  1. [132]
    Lawyers acting for the respondent forwarded correspondence to Zink (dated 19 October 2018) which disputed that sufficient information had not been given to her for the purpose of responding to the allegations.  A supplementary response was provided to the respondent on 16 November 2018.  The respondent on 7 December 2018 requested Zink to present for another interview.  On the day prior to the interview lawyers acting for Zink sought a list of questions to be posed to her at the interview only to be advised there was no specific list of questions and the interview was an opportunity for her to clarify responses already given.
  1. [133]
    Zink attended the interview on 13 December 2018 when it became evident the Investigator had conducted interviews with Keyes and Sharon Kelly yet she had no knowledge of the existence of any statements from them.  The issue was raised with the Investigator who indicated they were witnesses and not complainants and she stated she would seek further instructions on whether they were able to be provided to Zink.  The interview concluded in a manner, according to Zink, where the Investigator (Roos) had spoken to her in a "terse tone of voice".
  1. [134]
    Following the interview, further requests were made by Zink in relation to the identity of all witnesses interviewed, copies of any recordings, transcripts and copies of any transcript or statement produced in the investigation not already disclosed.  The requests for material were refused.
  1. [135]
    On 14 January 2019 a show cause letter (dated 14 December 2018) was received by Zink requiring a response within 14 days, accompanied by a copy of the Investigation Report.  Subsequently, an amended show cause letter was received with a change of date to 14 January 2019.

Investigation

  1. [136]
    It was claimed the investigation had not been conducted according to law or policy, nor was Zink afforded natural justice or procedural fairness in the investigation, in being denied the opportunity to be able to fully and properly respond to the allegations or defend herself prior to the Investigation Report being completed.

Investigation Report

  1. [137]
    Zink took exception to the decisions, finding and recommendations of the report for reasons that included:
  • Investigator held or would reasonably be perceived to have held a bias against her;
  • Investigator made a subjective conclusion about her credibility which was not supported by evidence;
  • Investigator substantiated or partially substantiated a number of allegations without a proper basis in evidence;
  • Investigator relied upon evidence that had not been provided to her with an opportunity to test;
  • Investigator made comment on matters beyond the terms of reference or proper scope of the investigation;
  • Investigator made no finding of collusion or that breach of confidentiality had occurred between the witnesses despite matters raised by her throughout the investigation; and
  • Investigation Report was otherwise irremediably flawed due to the deficiencies in the investigation.

Show Cause Decision

  1. [138]
    The decision to issue the show cause notice (subsequently amended) was not made according to law and policy and even if the decision maker in the show cause process tried to make independent findings, they would still be influenced by comments and conclusions in the Investigation Report.  Further, even if the information withheld from her was not considered, it may well have significance to her ability to respond to the allegations.

Second Suspension Decision

  1. [139]
    The second suspension decision had not been made according to law and policy, nor was she afforded natural justice or procedural fairness in the manner in which the decision was reached, specifically:
  • the delegate had no reasonable basis for a belief she was liable to discipline pursuant to the PS Act because it was improper to rely on the Investigation Report;
  • the notice of suspension did not state when the suspension would end and was in effect, of indeterminate length, contrary to s 192(2)(a)(i) of the PS Act and Department of Health's HR Policy E14 - Suspension of Employees;
  • alternate duties that may have been available were not considered either at her workplace or another workplace;
  • allegations against her had not related to performance therefore there was no reason why she couldn't perform legal duties at a different location;
  • contrary to clause 2 of Policy E14, the decision maker had failed to give consideration to a multitude of options that included:
  • temporary transfer;
  • direction to work under close supervision;
  • work from home; and
  • access accrued recreation or long service leave.
  • there was no evidence that consideration had been given to:
  • safety or wellbeing of other employees, clients or members of the public if she remained at work;
  • alleged behaviour so unacceptable it was likely to cause loss or damage to the respondent;
  • if the investigation would be compromised should she remain in the workplace; and
  • likelihood she would continue with the alleged unacceptable conduct and potential impact if that was to occur.
  1. [140]
    There was no evidence that the delegate had monitored the suspension or otherwise or whether there had been consideration she should remain suspended; or whether circumstances had changed, for example, the notification of a grievance disputing the suspension.

Notification of grievance

  1. [141]
    On 22 January 2019 her legal representative sought an extension of time to respond to the show cause to 28 February 2019 which was subsequently extended to 11 February 2019.
  1. [142]
    On 7 February 2019 she submitted a formal grievance under the Hospital and Health Service General Employees (Queensland Health) Award 2015 (the Award) and in doing so sought that the respondent:
  • suspend the disciplinary process whilst the grievance remains unresolved;
  • not require her to provide a response to the show cause while the grievance remains unresolved; and
  • take no further steps adverse to her whilst the grievance remains unresolved.
  1. [143]
    On 8 February 2019 the legal representative for the respondent confirmed the grievance would be dealt with at the Stage 3 grievance level and the following status quo would be maintained:
  • current disciplinary process would be suspended pending the outcome of the grievance;
  • the timeframe required to provide a response to the show cause notice would be extended by the time period it takes the respondent to investigate and respond to the grievance; and
  • she would remain suspended on full pay.
  1. [144]
    The respondent provided correspondence (dated 26 February 2019) which asserted that her grievance had not been substantiated and a response was required to the show cause by 1 March 2019.  According to Zink the respondent had not adequately addressed her grievance and she instructed her legal representative to notify a dispute in the QIRC.  On the same date she again requested that the status quo (previously sought) be maintained.
  1. [145]
    On 28 February 2019 the legal representative for the respondent provided to Zink the following confirmation:

Notwithstanding the above, we confirm that the current disciplinary process regarding your client will be suspended until further notice.  When our client re-instigates the disciplinary process your client will be provided with 48 hours to provide any responses to the show cause notice, reflecting the time remaining for her to respond prior to your client lodging the Notice of Industrial Dispute.  In the meantime, your client will remain suspended on full pay.

  1. [146]
    Zink in an affidavit in response took issue with the evidence of Keyes and Galluccio regarding alternate duties, stating that there were a large number of potential alternative duties available including aspects of her current role that could have been undertaken without interacting with her team members.  At any point of time there were vacant roles in each department that she was able to perform and these included administrative positions.  Zink could also have undertaken work as a Patient Safety Officer in which she could have taken complaints, investigated such complaints and then provided a response.  Also included in the role were tasks such as drafting Root Cause Analysis Reports and Clinical Incident Reports for which she had received training.  It was acknowledged that the Patient Safety Officer role did not require legal input, but it was often recommended.
  1. [147]
    Other roles identified by her in which she could have been placed included:
  • human resources;
  • mental health advocate; or
  • a legal role at an alternate Hospital and Health Service.
  1. [148]
    Other issues to which she took exception included:
  • access to electronic documents;
  • Employee Assistance Program (EAP) and the intent not to utilise the service provided by the respondent;

(Note: Expenses up to $1,500.00 were subsequently approved)

  • reassurance from Galluccio that she would be given full access to documents to assist with her submissions only to be denied such access by him.
  1. [149]
    In response to the statement of Roos she denied having refused to address the majority of the allegations.  There were also denials around statements said to have been made by her to Roos.  In the course of the interview she had become anxious, suffering a high level of stress when she learned that Roos had statements signed from members of the Legal Unit.  Lengthy breaks taken during the interview reflected on the stress and anxiety she was suffering.  Zink also denied claims that she had changed her evidence.
  1. [150]
    Under cross-examination, Zink recalled a meeting with Keyes on 17 May 2018 where he handed her a letter which suspended her employment on normal remuneration and advised her he had received a number of complaints which he took seriously.  The letter mentioned the complaints were about bullying and harassment and Keyes told her of his intention to appoint an external Investigator.  The information provided on the day had in her mind not been enough, but she agreed when she left the meeting it was known that Emma Hall was one of the complainants.
  1. [151]
    On her attendance at a meeting with Roos on 23 July 2018, there were discussions about the process of the investigation and that it was to be a "fact finding investigation".  Zink had no recall of the conversation that ensued which was said to include the offer of a "dummy run" on one of the allegations.  Agreement was reached to proceed with the interview and after a short break Roos informed her that she would only have to respond to allegations in which she thought there was sufficient information available on the day.  Zink nominated the allegations that she was prepared to respond to on the day.  She did recall the Investigator indicating it would be to her benefit to co-operate and she would make certain that the statement produced was truthful and accurate.  Zink had no recall that Roos said words to the effect, "It's my job to give you as much clarity as I can around the allegations".
  1. [152]
    Zink did not accept the proposition regarding the ending of the interview having to occur because she had to pick up her child for cheerleading practice even though the transcript of the interview at page 1123 recorded the comments.  She knew that four hours allowed for the interview would never work "due to the fact that I'd been through these before; and four hours is never enough time".  The meeting according to the witness had ceased prior to the scheduled time of 1.00 pm because she was in shock and highly distressed.  In her affidavit at paragraph 39 it stated: "Shortly after 1.00 pm the interview had stopped".
  1. [153]
    At paragraph 44 of her first affidavit it stated that:

Despite not properly particularising the allegations, I was compelled to provide a response or else suffer the consequences of a disciplinary process.  This has caused a significant amount of ongoing anxiety and stress.

  1. [154]
    Zink was unable to point to any correspondence which described the investigation as a disciplinary investigation but relied upon her own file note which recorded Keyes saying it would be a Part 9 investigation.  Zink maintained that Galluccio had informed her she would have "full access" to all documents.  Zink confirmed that on 13 December 2018 in the interview with Roos she would not engage about evidence from Keyes and another without first having access to the written statements provided by them to the Investigator.
  1. [155]
    In re-examination, she gave evidence that the following extracts from correspondence generated by Galluccio (dated 27 June 2018) were sufficient for her to reach an understanding that "a disciplinary process would commence after the investigation, subject to the outcome":

Please be aware, this is not a disciplinary process.  No findings have been made at this stage. …

Following the conclusion of the investigation, if the allegations against you have been substantiated, THHS may consider commencing a disciplinary process against you.

Respondent

Keyes

  1. [156]
    Since 29 June 2018 Keyes held the substantive role of Chief Executive with the respondent having previously occupied positions of Acting Chief Executive and Chief Operating Officer going back to 2012.  As Chief Executive his responsibilities include managing more than 6,000 people with an operating budget in excess of one billion dollars.
  1. [157]
    Keyes had worked with Zink since 2012 and as Legal Counsel she reported directly to him in addition to providing legal advice to him and the Executive on a range of issues.  He also dealt with other members of the Legal Unit from time to time on commercial matters that did not require Zink's involvement.
  1. [158]
    In or around April 2018 he was advised that complaints had been received from several members of the Legal Unit in relation to Zink's behaviour and conduct in the workplace.  In light of the potential serious nature of the complaints he considered it appropriate that a fact finding investigation be commenced, utilising an external Investigator from New South Wales, so there were no negative effects on Zink's reputation.
  1. [159]
    At the time he had the delegated authority to consider the potential suspension from duty of Zink and after consideration of the complaints, provisions of the PS Act relating to suspension and the Human Resources Policy E14, he determined she should be suspended from duty pending the outcome of a comprehensive investigation into the allegations regarding her behaviour.
  1. [160]
    The basis of the decision to suspend Zink from her duties was the belief that the proper and efficient management of the business may have been prejudiced if the suspension did not occur.  Factors considered in forming his belief were:
  • the seriousness of the allegations raised by multiple employees, that required further investigation;
  • indication of a serious risk to the health and safety of workers in the Legal Unit contained within the allegations, and the need to ensure that THHS complies with its workplace health and safety obligations;
  • the risk that, if not suspended, Zink may have had the opportunity to interfere with the investigation by altering, removing or deleting evidence, or seeking to influence witness testimony;
  • the risk that, if not suspended, Zink may take reprisal action against THHS workers involved; and
  • that there were no other THHS workers senior to Zink in the Legal Unit who could have supervised her behaviour.
  1. [161]
    Before effecting the suspension he considered whether there were any alternate duties that she may have been able to perform as an alternative to being suspended on full pay:
  • the Legal Unit is a small team based in one office, and it would be inefficient and ineffective to separate Zink from other members of the team, particularly in view of the fact that Zink had on previous occasions clearly stated that she would only work in certain locations across THHS due to the importance of and proximity to her files;
  • as a solicitor, there were no suitable alternative roles within THHS that Zink could have performed;
  • there was a need to ensure that Zink remained separate from the complainants and other potential witnesses; and
  • it was necessary to limit Zink's access to THHS information and information technology resources to prevent potential interference with the investigation.
  1. [162]
    A meeting was held on 17 May 2018 attended by Zink, Galluccio and himself where he gave Ms Zink a letter informing her of her suspension on grounds that he reasonably believed that the proper and efficient management of the business may be prejudiced if she was not suspended.  Zink was informed that he had not formed a view on the complaints and that the issues would be independently investigated by someone external.
  1. [163]
    Keyes accepted Zink's record of the 17 May 2018 meeting with the exception of her having no recall of him informing her that there were complaints from persons other than Hall.  On 22 May 2018 he received correspondence from Zink objecting to her suspension and in a response (dated 25 May 2018) he continued to deny his decision making was flawed due to:
  • lack of procedural fairness;
  • failure to consider alternative duties;
  • bias; and
  • any other grounds.
  1. [164]
    An external Investigator (Roos) from QWS was appointed to investigate the complaints and interviewed Keyes by telephone on 10 December 2018 when he was questioned on Zink's working relationship with Hall.  He had no further involvement with the investigation due to being interviewed and delegated to Galluccio all future decisions relating to Zink.
  1. [165]
    Keyes, in response to Zink's evidence regarding alternate employment opportunities including work at other hospitals, a human resources role, mental health advocate or in a legal team in another location, indicated that he didn't have the power to unilaterally effect a placement with another health service and he was not aware of her capabilities for a human resources role.
  1. [166]
    Under cross-examination, Keyes evidenced that as Chief Executive he was answerable to the Hospital and Health Service Board and that the Head of the Legal Team reported directly to him.  In November 2017 he was approached by employees of the Legal Unit who made some allegations regarding Zink's behaviour although at the time they weren't seeking to formalise the concerns.  He informed them that should they wish to formalise the concerns he would ensure they were investigated appropriately.  Whilst he formed no view on the allegations he certainly did hold the view that the persons raising the concerns were genuine.  In forming the impressions that the complaints were genuine, he did so without an investigation or raising the issues with Zink.  He had formed the view that none of the persons raising the complaints were engaging in a vexatious rant and he held concerns for their welfare.
  1. [167]
    In or around April 2018, he received advice from Galluccio that three individual officers had made written complaints which he subsequently considered to be serious in their nature.  He had discussions with Galluccio around the need to seek legal advice on how an investigation might be conducted but had no discussions about the substance of the complaints.  An officer in Galluccio's team undertook a preliminary investigation into the complaints which he understood consisted of discussions with various people who had made approaches to the human resources department about Zink's conduct.  An analysis and presentation of the information gathered was provided by Galluccio.
  1. [168]
    At the meeting on 17 May 2018, he informed Zink that a part 9 investigation would be commenced using an independent Investigator from interstate.  In the course of the meeting Zink raised concerns about accessing the office and files because in previous matters she had not been provided with access which prompted Galluccio to tell her that full access to the necessary documents would be provided.  Keyes accepted that he had no particular information that Zink was likely to interfere with the investigation or take reprisal action prior to the decision to suspend her from work.  The complainants were given specific instruction to keep confidential the matters in question and they were permitted full access to the records throughout the process to do their roles but access to the records for the preparation of their statements was not granted.
  1. [169]
    Keyes felt it was impracticable to provide alternate employment in another legal office because logistically it would have been problematic and the allegations were such that, if proven, his trust in legal counsel would have been eroded.  These reasons were also applicable for non-legal administrative roles.  Keyes was involved in the decision to appoint the Investigator but could not recall if he was the decision maker and had not been appraised of the progress of the investigation prior to being interviewed by the Investigator.  It had been his intention to be the decision maker to any potential disciplinary action.  He was aware of a number of redacted statements given to Zink but he had no involvement in that decision.
  1. [170]
    In re-examination, the evidence was that the fact finding investigation was to establish whether the beliefs and concerns of the complainants could actually be relied upon before putting them to Zink.  He saw no need over the period of suspension to review the suspension, but did have some contact with Zink during that time and approved an unusual arrangement for employee assistance to Zink.  At no time during the suspension did Zink inform him of any other skills or qualifications that would have enabled her to perform any other role.

Roos

  1. [171]
    Roos, an admitted Barrister to the Supreme Court and Labour Court of South Africa, had significant experience with regard to employment and in particular since 2001 when she emigrated to Australia.  Since March 2018 she held the role of Practice Leader for QWS and whilst that required her to supervise all investigations conducted in Queensland, she also continued to conduct workplace investigations herself.  To date she has conducted 25 fact finding investigations and overseen 70 workplace investigations for QWS.
  1. [172]
    Roos was engaged by lawyers acting for the respondent to conduct an independent workplace investigation and prepare a report following a number of formal complaints made by employees of the THHS regarding the behaviour of Zink.  Roos conducted interviews with eight employees of the respondent which included the complainants and Zink.
  1. [173]
    Two interviews were held with Zink on:
  • 23 July 2018 in person; and
  • 13 December 2018 via telephone.

In addition, Zink provided two sets of written responses to the allegations.

First Interview 23 July 2018

  1. [174]
    The first interview had to be rescheduled as Zink did not feel that eight days was enough time to prepare.  The interview took place on 23 July 2018 and Zink was accompanied by a barrister who presented as a support person rather than her legal representative.  At the outset of the meeting Zink informed her that she had no intention of participating in the interview and instead provided a letter addressed to Galluccio.  The actual time spent discussing the allegations was approximately two hours despite four hours being scheduled for the interview.  The remainder of the time was spent:
  • explaining the investigation process;
  • answering Zink's questions regarding Roos' role; and
  • providing Zink with further details of the allegations.
  1. [175]
    Zink took several lengthy breaks with her support person during the interview and also expressed concerns about not having enough details to respond to the allegations.  Zink was informed that in addition to the allegations and particulars already provided to her in writing, she would be provided with all relevant evidence available to Roos as they discussed each allegation and she would be given a full opportunity to respond to all the information.
  1. [176]
    A "mock question session" was engaged in to illustrate how the process would work, at which time Zink was informed that this was an example and it was up to her to decide whether she would participate in the interview process.  Zink elected to have a private discussion with her support person, returning to indicate she was willing to respond to six allegations of her choosing, on the basis that she felt there were enough details regarding those allegations.
  1. [177]
    After a little more than an hour into the interview Zink was offered the chance of a break but indicated she was "right to go" and then there was a discussion about changing venues for the purpose of the last two hours of a four hour session.  Zink stated that she knew the four hours would never work and that she had to pick up her child for cheerleading practice.  Once the six chosen allegations had been responded to, Zink informed Roos that she would let her know whether the remaining allegations would be dealt with by written response or not.  Zink had not appeared distressed during the first interview, was well prepared and had some text messages and photos readily on hand to show Roos.  An audio recording was made with Zink's consent and the transcript attached to the Investigation Report.

Second Interview - 13 December 2018

  1. [178]
    A second interview conducted via telephone saw Zink accompanied by a solicitor who presented as both her support person and legal representative.  During the interview Zink interrupted her on several occasions with Roos keeping her responses short to avoid antagonising her.  Zink had been queried in relation to an email which she claimed supported her version of events regarding concerns about Emma Hall, but had been unable to produce the email.  Roos provided her with a copy of the email to which Zink referred leading to a change in her evidence regarding the email.
  1. [179]
    This interview also was recorded with Zink's consent and a transcript attached to the Investigation Report.

Investigation Report

  1. [180]
    Notwithstanding that the interviews were directed to only discuss complaints relating to Zink's behaviour they often raised aspects of her performance.  These aspects were redacted from their statements as they were not matters that fell within the scope of the investigation.
  1. [181]
    Where it was necessary to reach a view on credibility, this was articulated in the report in relation to each allegation and supported by evidence.

Investigation Process

  1. [182]
    The focus on the investigation was to get as much detail as possible from the respondent and the interviews with Zink were followed up with the potential witnesses who had been mentioned by Zink in her responses.
  1. [183]
    In terms of the allegations against Zink she gave consideration to:
  • the likelihood of the conduct having occurred based on the evidence; and
  • the gravity of the consequences that may have followed a factual finding.
  1. [184]
    In evidence in chief, she provided additional evidence beyond that contained in her affidavit tendered in the proceedings.  At the first interview with Zink on 23 July 2018 an explanation was provided as to how the investigation would be conducted into a number of complaints from a number of different complainants and that the complainants had already been spoken to and she had viewed other material about the matters raised.  The purpose of the interview was for her to respond to the allegations identified in correspondence prior to the interview.  Zink was informed that it was to be a fact finding investigation to find out if the complaints were accurate.  Beyond providing the Investigation Report to her instructor/s she had no further involvement in the matter.
  1. [185]
    The first interview on 23 July 2018 commenced with an introduction from Roos which brought an initial response from Zink that she wouldn't be participating in the interview and provided a letter addressed to Galluccio.  Following lengthy discussions and a number of breaks, Zink explained her concerns particularly around the lack of detail for her to be able to respond and also at one stage had concerns about being able to understand what the allegations were about.  Zink subsequently responded to some allegations.
  1. [186]
    On the redaction of material in statements provided to Zink, it fell into two categories being:
  • very personal emotive opinion that didn't actually relate to the factual allegations and in some cases related to their own personal medical conditions;  and
  • a large component related to the complainants raising issues regarding Zink's work performance including her interaction with clients, none of which was covered by the scope of her instructions and were not put to Zink in the investigation.
  1. [187]
    Following receipt of Zink's full response, Roos decided to interview Keyes and Kelly as two further witnesses who needed to be spoken to regarding specific evidence relating to some of the allegations.
  1. [188]
    Under cross-examination Roos confirmed her engagement by lawyers acting for the respondent and the first contact she had with Galluccio was on 29 May 2018 upon commencement of the interview process.  The instructions received were to carry out a fact finding investigation into allegations that related to certain conduct said to have been belittling or humiliating with a level of inappropriateness.  The instructions did not extend to actually giving an opinion on bullying and harassment or whether there were breaches of the employer's policy that could constitute bullying and harassment.
  1. [189]
    Briefing material supplied by the instructor included statements from each of the complainants and policies of the respondent which were attached to the original report.  No preliminary investigation or analysis had been undertaken prior to the commencement of the investigation.  The intent of the investigation was to determine whether the allegations could be substantiated and the instructions did not extend to actually giving an opinion because she never provided findings whether bullying or harassment occurred with the report being prepared for the instructors.
  1. [190]
    The interviews undertaken were the subject of consent audio recordings which were normally not provided to the instructor unless specifically requested and in this case an audio recording of Zink's interview was requested by the instructor.  In the course of the interviews conducted by Roos, notes were taken and backed up with the audio recordings.  Roos had purposely chosen not to work off the complainant's statements because they contained information that was outside the scope of the investigation.  Statements were prepared from the material provided at the interview and forwarded in draft form to the complainants before they were specifically signed by the interviewee.
  1. [191]
    At the time of the interview with Zink on 23 July 2018 she had finalised statements from five persons which indicated the evidence was settled in terms of what they were saying and at that point no redactions had been made to the statements.  The issue of redaction had only been considered as a consequence of Zink requesting copies of the statements prompting Roos to recommend they be provided in a redacted form.  Roos understood that Zink had raised a number of issues about the process in correspondence to Galluccio (which she had actually never read in detail).  Roos' intention at the time was to understand Zink's concerns before the interview could proceed acknowledging it was not unusual for persons not to understand how workplace investigations worked.
  1. [192]
    Roos held the view that to provide all witness statements to Zink prior to the interview would have been highly unusual however they did furnish her with redacted statements.  It was the first time that Roos had provided statements in such circumstances.  There were sound reasons for not providing statements in the course of investigations including the possibility of people having to work together in the future and that they often contained derogatory or defamatory statements.  Following the interview with Zink she spoke to Galluccio about what had occurred at the interview because she had presented a letter at the interview addressed to Galluccio which no longer reflected exactly what had happened on the day.  The letter was not given to Galluccio because it was Roos' recall that Zink kept the letter.  Roos gave further evidence about Zink's unwillingness to participate fully in the investigation without access to more material than had been provided.
  1. [193]
    The redaction process had been very difficult for Roos and she had tried to leave in everything that she thought related broadly to the allegations and to ensure that it was a complete picture which required an exercise of judgement.  It was her evidence that she erred on the side of caution in redacting the statements and the redacted statements provided to Zink were the same as those given to her instructors unless she had picked the wrong one from her filing system by mistake.  Roos repeated her evidence regarding the matters considered when undertaking the redacting process and in particular the "old conundrum" in workplace investigations on what to provide to a respondent when dealing with interpersonal relationships.
  1. [194]
    The statement taken from Keyes had neither been redacted nor provided to Zink and it was only the statements of the five complainants that were given to Zink in the redacted form.  Roos conceded that some issues existed with the uploading of some of the statements in connection with her report.
  1. [195]
    Roos had concerns regarding Zink's co-operation with the investigation following the interview of 23 July 2018, particularly the comments about her future responses being in "writing only" but in cross-examination accepted she had informed her in the meeting they would meet again.  Zink had gone "back and forth" during the meeting.  The claim by Zink regarding being distressed in the meeting of 23 July 2018 was not an accurate reflection of what occurred and it was Roos' position that she was never distressed during the course of the interview.  At the second interview on 13 December 2018 Roos accepted that Zink was informed by her she wasn't disputing she was distressed at the first interview.
  1. [196]
    Roos had issue with allegations by Zink on 12 October 2018 that she wasn't aware who all the complainants were because she had been provided with that information.  By the time the second interview was held on 13 December 2018 Roos had concerns about Zink's responses to the allegations and at the time was frustrated because it was difficult to get a straight answer from Zink.  Roos also disputed that the tone of her voice was terse in the previous interview and she had not raised her voice as alleged.  The references to views on credibility contained in the report was relevant to how an interviewee conducted themselves in the interview.  The failure of Zink to provide emails said to support her position had also impacted on her credibility.  In completing the report Roos had tried really hard to just focus on the unredacted parts of the statements and tested the different versions of the complainants' evidence with other complainants.  The interview process had been an important part of assessing the credibility of witnesses.  Roos accepted that her instructor or the employer could form their own view of her report either agreeing or disagreeing.  Roos agreed that if the ultimate decision maker wanted to make an assessment on whether Minchio gave her evidence with conviction and confidence they would need to listen to the audio recordings.  There had been no mention in the terms of reference that her report was being prepared for the purpose of being relied upon to make a disciplinary decision, but she was "alive" that there may be further steps regarding Zink.
  1. [197]
    In re-examination Roos confirmed the investigation had been fact finding workplace investigations and provided an explanation regarding the attachments to the report and provided to the instructor.  In terms of the assessments regarding credibility of someone's evidence it was just about which version of facts were more credible and likely to be corroborated with reference to the facts.  Roos gave clarification about her approach to determine findings of credibility which included, in Zink's case, that she was a legal professional, but had made no mention of that in the report or of three of the complainants being lawyers.

Galluccio

  1. [198]
    Galluccio had been employed by the respondent as the Executive Director, Human Resources and Engagement since 4 July 2017 which required him to exercise executive level responsibility for the strategic workforce agenda and the operational responsibility for the full spectrum of end to end human resources.
  1. [199]
    He interacted with the Legal Unit on a limited basis as they were involved in very few HR/Employment law cases.  The Legal Unit included the following personnel:
  • Shannan Zink, Legal Counsel;
  • Melanie Gianoulis, Senior Lawyer, Contracts;
  • Emma Hall, Principal Solicitor;
  • Jennifer Grant, Senior Lawyer;
  • Deanna Minchio, Legal Support Officer; and
  • Deborah Haley, Legal Claims Manager.
  1. [200]
    Galluccio attended a meeting with Zink and Keyes on 17 May 2018 where Keyes handed Zink a letter informing her of being suspended from duty pending an investigation into complaints received concerning her.  Galluccio explained to Zink he would be her point of contact during her suspension, would update her on the progress of the investigation and should she require site or electronic access to any documents, prior approval would be required.  Zink was offered EAP access which was refused.  At the conclusion of the meeting Zink was required to leave the premises after being able to collect her personal effects in a manner that avoided causing her embarrassment.
  1. [201]
    A short time after Zink left the meeting he received a call advising she had been collecting documents and files, disobeying specific instructions not to access any of the respondent's documents or files.  As Zink's designated contact person, he provided frequent updates that included the following exchanges:

1 June 2018 investigation update;

8 June 2018  advice no further update;

15 June 2018  Investigator finalising witness statements;

22 June 2018 advised of meeting with Zink and the Investigator in next few weeks;

27 June 2018 confirmed meeting with the Investigator on 10 July 2018;

3 July 2018 received email from Zink advising did not have sufficient time to prepare for scheduled meeting with the Investigator and was seeking appropriate advice;

10 July 2018 sent email to Zink advising that meeting rescheduled for 10.00 am 23 July 2018, giving her over three weeks from receipt of letter on 29 June 2018 to prepare for interview;

17 July 2018 email to Zink confirming new date for meeting with Investigator;

19 July 2018 Zink confirmed attendance at the interview with a support person;

20 July 2018 Zink requested an alternate venue for meeting - granted;

23 July 2018 received letter from Zink delivered to the Investigator;

6 August 2018 sent letter to Zink expressing disappointment in her unwillingness to respond to allegations;

 advised a further meeting with Investigator scheduled for 24 August 2018;

20 August 2018 email to Zink about attendance at interview;

21 August 2018 medical certificate provided by Zink unfit for work to 4 September 2018;

21 August 2018 Zink provided with an extension of time (to 31 August 2018) for written submissions;

31 August 2018 extension sought on behalf of Zink to provide written submissions;

10 September 2018 granted further extension and provided access to recording of her interview with the Investigator;

24 September 2018 received medical certificate and requesting extension to 13 October 2018;

25 September 2018 Notice of Industrial Dispute filed in QIRC;

26 September 2018 discontinuance of application in QIRC;

12 October 2018 Zink's lawyers respond to allegations in the form of a statement from her;

2 November 2018 Zink provided with details of how to access her email account and electronic files for one week;

16 November 2018 a supplementary statement and medical certificate provided by Zink;

7 December 2018 Zink offered opportunity to attend telephone interview on 13 December 2018;

12 December 2018 Zink's lawyers request copy of questions to be put to Zink on 13 December 2018;

13 December 2018 lawyers for Zink requested additional information about interview of the same date;

18 December 2018  advice given to Zink's lawyers that no further material would be provided as full details of the allegations had been provided; and

9 January 2019 final Investigation Report delivered which fully substantiated 13 allegations and partially substantiated nine allegations.

  1. [202]
    Galluccio as the delegate considered the report and formed the initial view that the content of the report raised serious concerns about Zink's conduct and could amount to a breach of the Code of Conduct for the Queensland Public Service or the Queensland Government Workplace Harassment Policy E13.  He determined that Zink should be suspended from duty under s 189(1) of the PS Act as he reasonably believed she was liable to discipline under a disciplinary law.
  1. [203]
    Prior to implementing the suspension he considered whether there were any alternate duties that she may have been able to perform however that was not possible because:
  • the Legal Unit was a small based team in one office and it was not practicable to separate her from the team;
  • as a solicitor she did not have the apparent skills or experience to take up other roles; and
  • there was a need to ensure Zink remained separated from the complainants.
  1. [204]
    A show cause notice was issued to Zink on 14 January 2019 providing her with 14 days to show cause why she shouldn't be liable for discipline in relation to the substantiated and partially substantiated allegations.  Galluccio informed her that his considerations would include:
  • the Investigation Report;
  • the Code of Conduct;
  • the PS Act; and
  • the Human Resource Policy E10 - Discipline.
  1. [205]
    Lawyers acting for Zink in correspondence (dated 21 January 2019) requested an extension of time to reply and enclosed a medical certificate.  A fourteen day extension was granted.
  1. [206]
    A formal grievance was received from Zink on 7 February 2019 which the respondent advised on 8 February 2019 would be dealt with as a Stage 3 grievance under clause 7.2(b) of the Award with the status quo being maintained whilst the grievance was being investigated.
  1. [207]
    The Chief Operating Officer for the respondent was asked to investigate the grievance as he had no previous involvement in the investigation and had only limited involvement with Zink in a previous role.  On 25 February 2019 Zink was informed that no aspects of her grievance had been substantiated.
  1. [208]
    Zink was advised the following day in light of the outcome of the grievance the disciplinary process was enlivened with a response to the show cause being required by 1 March 2019.
  1. [209]
    A Notice of Industrial Dispute was filed in the QIRC on 27 February 2019 and Zink was advised that the current disciplinary process would be suspended until further notice.
  1. [210]
    Further, in evidence in chief, he confirmed that he provided Zink with a link to both the Investigation Report and attachments on 9 January 2019 which was the same link given to him by the respondent's lawyers.  The considerations relating to alternate duties that may have been an option for Zink were made against a background of her role as chief legal counsel and her suitability for other roles.
  1. [211]
    Under cross-examination it was the evidence that Galluccio had access to an internal briefing about the complaints against Zink prior to the meeting he attended on 17 May 2018 with Keyes and Zink.  It was his understanding there had been a preliminary investigation that led to the briefing and whilst his recall was limited it was normally the case to agree or disagree based on the recommendations.  He had no specific recall of any discussion about this matter prior to the referral process but had been informed by Keyes of the pending suspension of Zink.  In the course of the meeting Zink raised concerns about the need to access relevant documents and records during the investigation process and he informed her access would be given at the appropriate time.  A short time after the meeting there was an issue with Zink seeking to access documents contrary to a verbal instruction to get her things and go home.
  1. [212]
    During the investigation he was in regular contact with Zink providing updates in relation to the investigation but did not himself have any involvement in the investigation process beyond decisions about the timeframes for Zink to do things or to provide material.  Following the interview between Zink and the Investigator on 23 July 2018, he was provided with a letter from Zink and later she was provided with a number of redacted statements on someone else's advice and not as a result of a decision by him.  He became aware of Zink's unwillingness to answer questions following discussions with the respondent's lawyers and was disappointed because he wanted to progress the matter in a timely manner for the benefit of all concerned.  Included in his disappointment were the costs incurred in having the Investigator come to Townsville for the interview.
  1. [213]
    At the commencement of the investigative process there had been no plan for him to be the decision maker, but sometime prior to December 2018 when it was confirmed Keyes was potentially a witness, the delegation was effected.  A letter prepared by him on 14 January 2019 to Zink advised that the Investigator had found sufficient evidence to substantiate thirteen of the allegations and it was conceded by Galluccio that the letter was unclear regarding the allegations that had only been partially substantiated.  It had also been his intention that Zink respond to allegations where there was insufficient evidence for "completeness" but he recanted this aspect in cross-examination.  He accepted that a show cause notice identifying which allegations were proceeding needed to be issued before further actions were taken.  If he was to continue as the decision maker, he would rely upon the Investigation Report and whatever information he obtained from Zink.  In terms of the decision to suspend Zink it had been done at a time when he had decided to proceed with the disciplinary process and the allegations were serious.  No inquiries were made with the Health Service regarding any non-legal roles.  Galluccio had not turned his mind to a situation where he may need to determine whether to accept the evidence of Keyes over Zink in circumstances where he reported directly to Keyes.

Submissions

Applicant

Nature of the proceedings - Commission's powers

  1. [214]
    The submission referenced relevant sections of the IR Act including:

s 447(1) -

  1. (i)
    resolving disputes by conciliation of industrial matters and, if necessary, by arbitration or making an order;

(o) making declarations about industrial matters;

s 262(3)(b) and (4)(d) - power to make orders the Commission considers appropriate regarding settlement or prevention of disputes;

s 451(1) and (2) and s 448(1)(b) - power and functions of the Commission; and

s 463(1) - powers of the Commission to make a declaration about an industrial matter.

  1. [215]
    The Commission does not sit in "judicial review" but instead reviews the merits of the action in question.  Authorities supportive of that proposition were:

QSU v Sunshine Coast Regional Council[17];

Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3)[18];

The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees AND QR - adopted the approach:

As a basic right and principle, the employer has a right to organise a business in the way in which it considers the most efficient manner … This prerogative/right is subject to it being exercised in a manner which could not be described as harsh, unjust or unreasonable.[19]

Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services)[20].

  1. [216]
    In the present case the employer's decision related to the process of taking disciplinary action and the Commission is fully empowered to resolve the dispute by making its own findings of fact and determining what actions are appropriate.  The actions in question are to be treated as part of the employer's "prerogative" and upon the evaluation of the facts would intervene if the employer's actions were harsh, unjust or unreasonable.

Relevance of rules of natural justice

  1. [217]
    The respondent had focussed on the strict application of the concept of natural justice as applied in judicial review cases.  A finding of a breach of the rules of natural justice would be a powerful indicator that the relevant conduct was "harsh, unjust or unreasonable" however the concept of natural justice does not mark the limits of what might be "harsh, unjust or unreasonable".  In Byrne v Australian Airlines Ltd[21] (in the context of unfair dismissal) it was stated:

The distinction between procedure and substance is elusive …

That is not to say that the steps taken, or not taken, before termination may not in a given case be relevant to consideration of whether the state of affairs that was produced was harsh, unjust or unreasonable.  Thus, it has been said that a decision which is the product of unfair procedures may be arbitrary, irrational or unreasonable.  But the question under cl 11(a) is whether, in all the circumstances, the termination of employment disobeyed the injunction that it not be harsh, unjust or unreasonable.  That is not answered by imposing a disjunction between procedure and substance. It is important that matters not be decided simply by looking to the first issue before there is seen to be any need to enter upon the second.

  1. [218]
    It was appropriate for the Commission in reviewing an employer's actions in an industrial dispute jurisdiction to rely on the same approach.  This should be done by consideration of all relevant facts and circumstances (both procedural and substantive) to assess whether the employer's action was justified or "harsh, unjust or unreasonable" and go broadly to the overall fairness and reasonableness of the action.

Grounds for relief in relation to the suspension decisions

  1. [219]
    There were two separate suspension decisions made, one on 17 May 2018 and the other on 14 January 2019.  The applicant seeks an order to set aside those decisions or declare them to be harsh, unjust or unreasonable.  The applicant challenged the position of the respondent regarding rules of natural justice not applying to a decision under s 137 of the PS Act for reasons that included:

First suspension

  • Zink was not given a chance to be heard before the suspension;
  • it was unreasonable for Keyes not to allow Zink to be heard;
  • potential witness interference could have been ameliorated;
  • no offer of a support person for Zink at the first meeting;
  • no other options alternate to the suspension were offered;
  • seriousness of the allegations cannot be satisfied as it was not disclosed prior to the meeting of 17 May 2018;
  • details of any "serious risk to health and safety" would have been ameliorated if duties alternate to the Legal Unit were found; and
  • there was no evidence to suggest interference in the process was likely, nor that reprisal action against the respondent's employees would occur.
  1. [220]
    Keyes had not considered all alternate duties that may have been available as required by s 137(3) of the PS Act and had not come to his role as a decision maker with a "clean slate", having been approached in November 2017 with allegations about Zink's behaviour which he considered were genuine complaints.  Having not informed Zink of the previously formed adverse views, an objective bystander might reasonably have apprehended that Keyes had not brought an impartial mind to the task.  Keyes had acted in a procedurally unfair manner.
  1. [221]
    Keyes had failed to comply with s 137(2)(a) of the PS Act in that he was required to state in the suspension notice when the "period of the suspension starts and ends".  Section 137(4) of the PS Act provides that the "period of suspension cannot be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice".  Keyes was required to form a view about the reasonableness of the period when making the decision.
  1. [222]
    The intention of s 137 of the PS Act is that any suspension must be for a fixed and identifiable "period" of time and the delegate must be able to ascertain that "period" of time at the outset in order to comply with s 137(4) of the PS Act.  As used in s 137 of the PS Act, the term "period" does not contemplate an end date determined by reference to some future event.
  1. [223]
    The suspension notice stated the suspension "will end once THHS has determined what further action is appropriate, including any management or disciplinary action".  This failed to state when the period of suspension would end and in effect created an indefinite suspension.  The indefinite nature of the suspension meant that Zink was in a constant state of uncertainty as to when the suspension would end.
  1. [224]
    The decision to suspend Zink on 17 May 2018 was harsh, unjust or unreasonable.

Second suspension

  1. [225]
    The second suspension was made by Galluccio on 14 January 2019 in accordance with s 189 of the PS Act.  The rules of natural justice did not apply to this decision because of s 190(2) of the PS Act that expressly excluded the operation of those rules when a suspension under s 189 of the PS Act is effected on normal pay.  Nevertheless, having regard to all relevant facts and circumstances, there is a question as to whether the decision to suspend was "harsh, unjust or unreasonable" for reasons that included:

Section 189(1) of the PS Act requires the decision maker to "reasonably" believe the employee was liable to discipline under a disciplinary law.  In Dorante-Day v Marsden, Mullins J said:

The condition precedent for s 189 to apply is the formation of a reasonable belief on behalf of the decision-maker that the relevant employee 'is liable to discipline under a disciplinary law'.  If that condition exists, then the decision-maker may consider a suspension under s 189 of the PSA.[22]

  1. [226]
    In George v Rockett (Rockett)[23] the High Court of Australia said that a reasonable belief "requires the existence of facts which are sufficient to induce that state of mind in a reasonable person".  A belief does not require a finding on the balance of probabilities, but requires more than suspicion.
  1. [227]
    Thus, Galluccio who was required pursuant to s 189(1) of the PS Act, to believe on the facts Zink was liable to discipline, had failed due to insufficient facts that the belief was a reasonable one.  Galluccio had in correspondence (dated 14 January 2019) stated "I reasonably believe that you are liable to discipline under a disciplinary law" relying only on the body of the Investigation Report without the attachments.  The evidence revealed that he was confused about what s 189(1) of the PS Act required him to believe and confused about what he in fact did believe.  It was not sufficient for there to be a belief that an employee may be liable for discipline, see Mason v MWREDC Limited[24].  The test under s 189(1) of the PS Act requires belief that the employee is liable for "discipline" which means taking disciplinary action.
  1. [228]
    Galluccio had not properly considered whether there were alternative duties available for Zink to perform but had simply relied on the three factors as Keyes had in effecting the first suspension, being:
  • Legal Unit was a small team based in a small office and it was not practicable to separate Zink from other members of the team;
  • as a solicitor she lacked the apparent skills, experience or qualifications to take up other roles and had made no enquiries about such roles; and
  • the need to ensure Zink remained separate from the complainants given the nature of the matters which had been substantiated in the Investigation Report.
  1. [229]
    Galluccio had impermissibly imposed what amounts to an indefinite suspension on Zink and it could not be discerned from his correspondence when the suspension ends.
  1. [230]
    The decision in all circumstances was "harsh, unjust or unreasonable" and should be set aside.

Relief in relation to the Investigation Report

  1. [231]
    The Investigation Report ought to be excluded from consideration in future disciplining processes on the basis of being "harsh, unjust or unreasonable" for a decision maker to rely on the report because:
  • the procedures adopted in the production of the report were unfair or unreasonable because of a lack of clarity and particulars;
  • the respondent acted unfairly or unreasonably by refusing to give adequate disclosure during the investigation process;
  • the process afforded to Zink during the investigation to access and review records held by the respondent was unfair and inadequate; and
  • a reasonable, objective observer might perceive the Investigator to have demonstrated a prejudgement of Zink's cooperativeness and credibility.
  1. [232]
    There was a body of substantial reasoning in the submission to support the proposition it would be unfair and unreasonable for any decision maker to rely on the Investigation Report for the purposes of any disciplinary process under the PS Act, with the findings and opinions expressed in the Report having the real potential to unfairly prejudice or influence a decision maker against Zink.

Relief in relation to the show cause decision

  1. [233]
    The show cause notice issued to Zink on 14 January 2019 ought to be dealt with in the following way:
  • show cause notice be set aside because it was ambiguous and inherently unfair for reasons that related to:
  • insufficient particulars impacted on procedural fairness, see Berenyi v Maynard[25];
  • a plain reading of the notice identifies issues in regard to the substantiated and partially substantiated allegations;
  • Galluccio conceded "further clarity's needed" and that aspects of the show cause notice were not clear;
  • it would be "harsh, unfair or unreasonable" to proceed with the existing show cause notice.
  • the respondent should be required to disclose all relevant evidence including:
  • all evidence obtained by the Investigator, in particular full copies of witness statements (unredacted), copies of audio recordings of witness interviews and copies of initial complaints;
  • full disclosure of the Investigation Report and its annexures.  See Wirth v Mackay Hospital and Health Service (Wirth)[26]; and
  • it would be "harsh, unjust and unreasonable" for the respondent to proceed with the disciplinary process without giving Zink full disclosure.
  • Galluccio was not an appropriate delegate to proceed with any future disciplinary process because:
  • his close involvement in the investigation process creates a perception that he may not be an impartial decision maker;
  • at the commencement of the investigation process there were no plans for Galluccio to be the decision maker thus no arrangements were made to keep him independent of the process;
  • he had a close and continuing involvement in the investigation from the very beginning and had brought the complaints to Keyes' attention;
  • he was nominated "point of contact" following the initial suspension on 17 May 2018;
  • decisions made by him or views expressed supported the proposition he may not be an impartial decision maker;
  • during the investigation process he made decisions about what material would be disclosed to Zink putting him in a position of conflict;
  • he had been disappointed with the way he perceived Zink's approach to the investigative process;
  • formed a view that Zink had failed to engage in the process which was plainly adverse to her;
  • on imposing the second suspension on 14 January 2019 he had formed a view Zink was "liable to discipline" and had engaged in misconduct;
  • he intends to approach the disciplinary decision making process in an unfair way by relying upon the Investigator's assessment of facts rather than his own assessment;
  • as his direct superior officer (Keyes) is a witness in the disciplinary matter, there is an inherent conflict of interest in that he would have two conflicting roles and a reasonable objective observer might reasonably apprehend that he could be inclined towards preferring the evidence of Keyes; and
  • to allow Galluccio to be the decision maker in all the circumstances would be sufficient to give rise to a perception of bias and there should be an order that a delegate other than Galluccio be appointed.

Conclusion

  1. [234]
    The following relief was sought:
  • an order setting aside the respondent's decisions to suspend the applicant from duty on 17 May 2018 and on 14 January 2019;
  • an order that the Investigation Report commissioned by the respondent dated 9 January 2019 be excluded from consideration in any disciplinary process undertaken by the respondent against the applicant;
  • an order setting aside the show cause notice issued on 14 January 2019;
  • an order requiring that, before any further consideration of disciplinary action is taken, the respondent is to disclose to the applicant full copies (without redactions) of any complaints, records of interview (including audio recordings), and witness statements obtained during the investigation of the relevant allegations; and
  • an order requiring that any further consideration of disciplinary action be undertaken by a delegate other than Mr Salvatore Galluccio.

Respondent

  1. [235]
    The applicant asked for the Commission to make a number of orders in settlement of her grievance about certain actions taken by the respondent in respect of her employment which were said to have been taken contrary to the PS Act, certain workplace policies and a denial of natural justice.  The particulars were set out in a formal grievance made by the applicant.
  1. [236]
    The respondent submitted that:
  • in the arbitration of an industrial dispute it is not, as submitted by the applicant, to decide whether the actions complained of were "harsh, unjust or unreasonable";
  • in any event the applicant had not established that the respondent's actions were either harsh, unjust or unreasonable or otherwise not lawful having regard to the relevant powers and discretions under the PS Act; and
  • the orders sought were not appropriate for the settlement of an industrial dispute.

Commission's Jurisdiction to settle Industrial Disputes

  1. [237]
    The submission identified the sections of the IR Act relevant to the functions and powers of the Commission in regard to the settlement of industrial disputes by arbitration.  They included:
  • s 262;
  • s 345;
  • s 447 and
  • s 451.
  1. [238]
    The applicant also submitted that pursuant to s 463 of the IR Act the Commission also had the power to make a declaration about industrial matters and as such had a discretion where an application has been made to the Commission by, inter alia, a person who may be directly affected by the declaration.

Nature of the Commission's arbitral function

  1. [239]
    The submissions challenged the assertions of the applicant regarding the correct approach to the arbitration of an industrial dispute, submitting that the function of the Commission is to consider all of the facts and circumstances and make such findings as may be necessary in relation to the law and fact and the rights and obligations of the parties.  Upon undertaking the functions, the Commission determines what are the appropriate steps for settlement of the dispute by making such orders as permitted by the IR Act.
  1. [240]
    The Commission is not required to test an employer's decision or conduct as to whether it was "harsh, unjust or unreasonable" as is the concept in relation to unfair dismissals and this concept should not be imported into the exercise of an arbitral function as the benchmark for settling an industrial dispute.  There is no legislative basis for doing so and the authorities relied upon by the applicant do not support constraining the Commission's arbitral dispute settling function.
  1. [241]
    The authorities relied upon by the applicant involved the settlement of industrial disputes that concerned the limits of managerial prerogative in matters such as the reduction of hours and manning levels and are not apposite to the settlement of this industrial dispute.  In any event, the "managerial prerogative cases" relied upon by the applicant were cases in which the Commission was not prepared to intervene.

Relevance of the decision making context

  1. [242]
    In determining what orders, if any, might be made to the settlement of the dispute, it was submitted that the context of the dispute was critically relevant.  In this case the relevant rights and duties are imposed by the PS Act and not under an Award or enterprise agreement, and are therefore governed by the principles of statutory interpretation and the common law principles as to what is required of a decision maker.
  1. [243]
    In approaching the settlement of the dispute in the manner urged by the applicant, the Commission might be led into an error of making orders that, in effect, impose obligations that were not required as a matter of law.  This would be particularly so in circumstances where the PS Act expressly provides that the rules of procedural fairness do not apply.
  1. [244]
    Chapter 7 of the PS Act acknowledges the Commission has jurisdiction to arbitrate this industrial dispute or exercise the functions of the IR Act.  However, the following provisions were not relevant to the Commission's consideration:
  • the applicant's submission that, in arbitrating the dispute, the Commission is required to determine whether the respondent's decisions were unfair or unreasonable; and
  • what orders might be appropriate to settle the dispute.

Section 137 Suspension Decision

  1. [245]
    The rules of procedural fairness do not apply to a decision to suspend under s 137 of the PS Act and in the alternative, having regard to the purpose of the suspension power under s 137, the rules of procedural fairness were complied with.  The task of the Commission is to consider the overall fairness of the procedure and substance when reviewing the suspension decision.
  1. [246]
    The applicant's position was inconsistent with the purpose for which the chief executive is given a non-disciplinary power to suspend and ignores that the power is concerned with staffing generally.  To require procedural fairness in respect of a non-disciplinary suspension on normal remuneration under s 137 of the PS Act, when legislation expressly excludes procedural fairness in respect of a suspension under s 189 of the PS Act on normal remuneration, is at odds with a sensible reading of the PS Act and would be counter-intuitive.

The basis for a s 137 suspension: Mr Keyes' reasonable belief

  1. [247]
    The chief executive by notice may pursuant to s 137 of the PS Act suspend a public service officer from duty if they reasonably believe the proper and efficient management of the department might be prejudiced if the officer is not suspended.  The evidence according to the applicant showed insufficient grounds to find that management of the department might be prejudiced which misconceives the role of the Commission in arbitrating an industrial dispute and the proposition regarding the nature of reasonable belief that Keyes was required to have when making the decision.
  1. [248]
    The exercise of the power to suspend under s 137 of the PS Act only required Keyes to be of a reasonable belief, based on the information and circumstances before him, and does not require the Commission to review all the evidence available to Keyes in order to determine whether the Commission itself would have reasonably come to the same state of belief.
  1. [249]
    The Commission, based on Keyes' evidence regarding the complaints and written advice he received had formed the view the complaints were serious, should be satisfied that he held the required reasonable belief genuinely and was not irrational, illogical nor supported by illogical grounds.  In the consideration of the proper and efficient management of Queensland Health, it was relevant for Keyes to consider the management of the Legal Unit.

The requirement to consider alternative duties

  1. [250]
    Keyes discharged his obligation under s 137 of the PS Act in considering all alternate duties before suspending Zink's employment.  In the second affidavit provided by Zink there had been a number of alternate positions put forward that could have been considered and were each dealt with by Keyes in his evidence with explanations given as to why they were not viable alternatives.  Also in some cases there were no vacancies at the time for the roles.

Keys' impartiality as the decision maker

  1. [251]
    It was conceded that Keyes had been approached by certain staff in November 2017 with complaints about Zink's behaviour which he took seriously at the time and formed a view they were genuine.  Importantly, he had formed a view about whether the complaints were true or not.  The genuineness of the complaints and their truth was consistent with Keyes' evidence that he told the staff they should formalise the complaints if they wanted them to be properly investigated.  A fair minded lay observer would not reasonably apprehend that Keyes "might not bring an impartial mind" to his decision.

Indefinite period of suspension

  1. [252]
    The letter of suspension had complied with s 137(2)(a) of the PS Act to state when the suspension "starts and ends".  Section 137(2)(a) of the PS Act does not refer to the "period" of suspension but requires the notice to state when the suspension "starts and ends".
  1. [253]
    An order to set aside the s 137 suspension decision would not be an appropriate settlement of dispute because:
  • there was no basis for a finding that Keyes had not exercised his discretion properly; and
  • the order would lack utility as the decision was made on 17 May 2018 and ended when the second suspension decision was made on 14 January 2019.  The grievance procedure under the Award and the industrial dispute were notified after the s 137 suspension had ended.

Investigation and Investigator's report

  1. [254]
    Following the s 137 suspension an independent Investigator was appointed to conduct an investigation into complaints that had been made about Zink by her co-workers.  A report was produced which set out the findings in respect of the allegations that had been put to Zink.
  1. [255]
    Zink sought to have the report excluded from consideration in any future disciplinary process on the basis it would be "harsh, unjust or unreasonable" for a decision maker to rely on the report because:
  • procedures were unfair due to lack of clarity and particulars;
  • inadequate disclosure during the investigation;
  • process afforded to Zink to access records was unfair and inadequate; and
  • Investigator demonstrated pre-judgement of Zink's cooperativeness and credibility.
  1. [256]
    The respondent submitted that the investigation and the report were not steps in the disciplinary process provided for under the PS Act although Galluccio had considered the report in his suspension decision and in the issue of a show cause letter.

Clarity and particulars

  1. [257]
    Zink was informed on 17 May 2018 that there would be a "Part 9 investigation" which was an investigation into the complaints by the co-workers.  There had been a recent "Part 9 investigation" involving Zink and presumably she would have been familiar with the provisions of the Hospital and Health Boards Act 2011 (Qld).  The nature of the investigation was clarified in correspondence and by the Investigator at the first meeting on 23 July 2018.
  1. [258]
    There was no prejudice to Zink from Keyes' erroneous characterisation of the investigation on 17 May 2018 nor that it had subsequently not been expressly corrected.  In all circumstances, it was disingenuous of Zink to assert that she was misled or didn't know the nature of the investigation.
  1. [259]
    There was sufficient particulars of the allegations provided to Zink to enable a response and a fair opportunity given to respond to them having regard to:
  • the allegations (drafted by the Investigator) were attached to correspondence (dated 27 June 2018).  The authority cited by Zink in support of the request for particulars of the allegations was related to a disciplinary process and not apposite to the investigation;
  • at the meeting on 23 July 2018 the Investigator informed Zink that evidence gathered about each allegation would be provided.  At that meeting Zink was "willing to respond but only to those allegations that she thought were sufficiently particularised for her to respond to".  At that point Zink clearly thought that some of the allegations were sufficiently particularised;
  • the Investigator was at pains to ensure fairness and did not exert any pressure on Zink to respond to any of the allegations at the first meeting;
  • the evidence did not support that there was a practical injustice to Zink proceeding with the meeting on 23 July 2018 because she was shocked and distressed;
  • it would have been entirely premature to provide Zink with potential disciplinary grounds at the commencement of a fact finding investigation and before any decision had been made under s 187 of the PS Act;
  • Zink was provided with the relevant evidence by being given copies of the complainant's statements so far as those statements contained evidence relevant to each allegation.  As to the six allegations responded to at the meeting on 23 July 2018, all information held by the Investigator had been provided; and
  • Zink had a further three opportunities to respond to the allegations including written responses which totalled 118 pages.
  1. [260]
    In Wirth, Bond J, in respect of the provision of particulars in a show cause process, said he was not persuaded that there was any practical injustice cause by the inadequacy of the particulars because "the real point was the evidence".
  1. [261]
    The claim that Zink had her capacity to respond to the allegations during the investigation, unfairly hindered, had not been made out.

Disclosure

  1. [262]
    The claim by Zink was that inadequate disclosure existed during the investigation because she had not been provided with:
  • original written complaints and preliminary investigation material;
  • unredacted statements of complaints;
  • statements of Keyes and Kelly; and
  • all statements or records of interview including audio recordings.
  1. [263]
    Adequate disclosure in Zink's terms would be full disclosure which was contrary to the authority of Coutts v Close, where it was held that there was no obligation to provide unredacted transcripts of interviews between the Investigator and witnesses.  In making that finding, Griffiths J said:

Generally speaking . . . however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an 'open file' policy which would have the effect of disclosing every submission or piece of evidence to an affected party . . .  Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.[27] (references omitted)

  1. [264]
    It would be at odds with the decision in Wirth to find that procedural fairness required that during an antecedent fact finding investigation an employee had to be provided with evidence that was not going to be relied upon.

Audio recording of interviews

  1. [265]
    The authorities in the context of this investigation did not require Zink to be provided with audio recordings of the interviews with the complainants or other witnesses in circumstances where she had been provided with the evidence.

Original complaints and preliminary investigation

  1. [266]
    The original written complaints were provided to the Investigator with the terms of reference for the investigation.  In the report the Investigator noted that there were complaints about Zink's workplace behaviour and performance with the investigation confined to the behaviour.
  1. [267]
    The fact that the Investigator had not provided Zink with the original complaints does not amount to procedural unfairness, with there being no evident practical injustice, given she was provided with all relevant credible and significant material that the decision maker would rely upon in respect of the allegations.

Complainant's written statements

  1. [268]
    There is no authority to support the proposition that procedural fairness always requires a person to be given full copies of witness statements.  The question is whether overall the person had sufficient information disclosed to them to have a fair hearing and whether that evidence was relevant, credible and significant to the allegations.
  1. [269]
    According to the Investigator the redacted material fell into two broad categories:
  • personal opinion and information that did not relate to the allegations put to Zink; and
  • information relating to Zink's work performance which was outside the scope of the investigation.
  1. [270]
    The Investigator's role required her to be arbiter of what evidence was to be redacted from the complainants' statements and as an experienced Investigator she was well placed to undertake that task.  The Investigator when preparing her report was careful to make sure that she did not inadvertently take into account something from her memory.
  1. [271]
    It was entirely appropriate in the context of the settlement of an industrial dispute to have regard to providing material that was not relevant to the investigation and that may have had a detrimental impact on the future working relationship between Zink and her coworkers in the Legal Unit.

Statements of Keyes and Kelly

  1. [272]
    There was no practical injustice to Zink in not being provided with written statements from them in circumstances where the Investigator offered to provide evidence orally to her at the telephone interview on 13 December 2018.

Access to records

  1. [273]
    Zink was provided with access to emails and electronic files after the 23 July 2018 interview at which time she had been furnished with:
  • the allegations;
  • she had responded to six of them; and
  • she had been provided with the complainants redacted statements.
  1. [274]
    Whilst there is a complaint from Zink that the opportunity to access her emails and electronic records was insufficient, it is not apparent from the record of interview on 13 December 2018 that she was hindered in her ability to locate relevant documents.  It was telling that Zink had not identified broad categories of documents that she required in order to adequately respond to the allegations.
  1. [275]
    There was no practical injustice to Zink and it was noted that the complainants' statements were not predominantly or principally based on what was set out in documents and documents upon which they relied were attached to their statements.

Prejudgement as to cooperation and credibility

  1. [276]
    It was submitted by Zink that an objective observer might perceive that the Investigator had demonstrated a prejudgement of her cooperativeness and credibility.  The fact that the Investigator had made a number of comments in her report about the credibility of her evidence was not improper or inherently unfair because findings of credibility are necessary in weighing up different versions of events.  There was evidence from the Investigator that Zink raised concerns about the credibility of the complainants which resulted in her testing different versions of the complainants' evidence with other complainants to address Zink's concerns.
  1. [277]
    The complaint about prejudgement was supported by the following claims:
  • failure of the Investigator to suspend the meeting of 23 July 2018;
  • during the telephone interview of 13 December 2018 the Investigator raised that there were some inaccurate assertions in her statement of 12 October 2018;
  • allegations of the Investigator having spoken in a "terse voice" at the 23 July 2018 meeting which was denied by the Investigator; and
  • finding made about Zink's cooperation during the investigation affected the Investigator's view on her credibility.  This was not accepted by the respondent on the basis it was an entirely proper function of an investigation, for the Investigator to test the evidence and make findings on credibility.
  1. [278]
    The evidence does not support a finding that a fair minded observer might reasonably apprehend prejudgement of the Investigator on Zink's credibility.

Relief Sought

  1. [279]
    There was no basis for the Investigation Report to be excluded from the disciplinary process for the reasons advanced by the respondent.  If the Commission had concerns about a decision maker it should not have regard to the statements made by the Investigator about Zink's cooperation with the investigation.  These statements could be excluded from consideration by the disciplinary decision maker.

Section 189 Suspension decision

  1. [280]
    The employment of Zink was suspended by Galluccio on 14 January 2019 pursuant to s 189 of the PS Act.
  1. [281]
    The chief executive is empowered by s 189 of the PS Act to discipline an employee of the public service if reasonably satisfied that one of the disciplinary grounds provided for in s 187(1) of the PS Act exists.  In disciplining an employee, the chief executive may take the action, or order the action to be taken, that the chief executive considers reasonable in the circumstances.  Section 189(1) of the PS Act provides that a chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.  The expression "disciplinary law" is defined in the PS Act to mean this Act, a disciplinary provision of an industrial instrument, or a law prescribed under a regulation.
  1. [282]
    Section 190 of the PS Act regulates the Procedure for disciplinary action as follows:
  1. (1)
     In disciplining a public service employee or former public service employee or suspending a public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.
  1. (2)
     However, natural justice is not required if the suspension is on normal remuneration.
  1. [283]
    The suspension decision was neither a disciplinary finding nor disciplinary action and as conceded by Zink that by virtue of s 190(2) of the PS Act, Galluccio was not required to afford natural justice in the decision to suspend pursuant to s 189 of the PS Act because the suspension was on normal remuneration.  To seek to impose an obligation that the legislature has expressly excluded would be inconsistent with judicial authority.[28]
  1. [284]
    According to the argument advanced by Zink, the suspension decision was harsh, unjust or unreasonable because:
  • the exercise of the power under s 189(1) of the PS Act miscarried;
  • alternate duties that may have been available were not considered; and
  • suspension was for an indefinite period.
  1. [285]
    In Dorante-Day v Marsden[29], Mullins J described as a condition precedent to the application of s 189 of the PS Act, the formation of a reasonable belief on behalf of the decision maker, that the relevant employee "is liable to discipline under a disciplinary law".  The reference to "condition precedent" does not mean there must "exist facts which are sufficient to induce that state of mind in a reasonable person", relying in support for that proposition on Rockett.
  1. [286]
    Section 189 of the PS Act provides that the power to suspend may be exercised if the chief executive "reasonably believes the proper management of the department might be prejudiced if the officer is not suspended".  This requires the chief executive to evaluate and assess whether there is a reasonable belief about a state of affairs.  Gummow ACJ and Kiefel J cited in Minister for Immigration and Citizenship v SZMDS[30] that the critical question in the formation of a state of mind is whether the formation is irrational, illogical and not based on findings or inferences supported by logical grounds.
  1. [287]
    Galluccio gave written evidence that after consideration of the Investigation Report, he formed the initial view that the content of the report raised "serious concerns" about Zink's conduct that "could amount to the breach of the code of conduct or harassment policy".  In oral evidence he referred to "the number and breadth of the allegations and the issues" and the letter issued by him on 14 January 2019 correctly sets out the statutory test of whether an employee "is liable to discipline under a disciplinary law".
  1. [288]
    A fair assessment of his evidence under cross-examination was not that he did not know what belief he was required to form in making the suspension decision or that he did not reasonably form that belief, but that he was concerned to make clear to the Commission he had not yet made a disciplinary finding.  The fact that he had not also considered the statements of the complainants and witnesses at the time of making his suspension decision is not a basis for concluding that he did not have sufficient facts upon which to base his reasonable belief.

Consideration of alternative duties

  1. [289]
    In Galluccio's consideration of whether there were alternative duties the Applicant could perform he considered the "nature of the matters" in making his assessment.  The fact he made no enquiries about Zink's skills to perform non-legal roles and made no enquiries about those roles does not of itself establish that he failed to discharge his obligation to consider alternative duties given his overriding concern about the seriousness of the allegations.

Suspension for an indefinite period

  1. [290]
    The respondent's conduct in stating that the suspension would come to an end by reference to a future defined and ascertainable event complies with the requirement in s 192(2)(a)(i) of the PS Act.

Show Cause notice

Ambiguity and unfairness

  1. [291]
    The Commission was being asked to set aside the show cause notice issued by Galluccio on 14 January 2019 on the basis that it is ambiguous and inherently unfair.  The respondent accepts that the show cause notice was ambiguous in the manner it set out the allegations to which Zink was required to respond, however it was open for her to seek clarification of the matters which were said to be ambiguous.  In any event, it is open to the respondent to issue a fresh show cause notice addressing those ambiguities.

Requirement to provide full disclosure

  1. [292]
    There was a concession by Zink that concerns over the show cause notice could be remedied by the issuing of a fresh show cause notice, however it was submitted that the notice must be accompanied by:
  • full copies of the witness statements;
  • copies of audio recordings of interviews with the witnesses; and
  • copies of the initial complaints.
  1. [293]
    In terms of natural justice, Bond J in Wirth held that natural justice as a minimum standard required that Dr Wirth be provided with all the information the decision maker intended to rely upon when determining whether an allegation could be substantiated and advised what evidence was being relied upon to support the allegation.[31]  That standard has been met here and the argument that Zink needed access to information the decision maker is not going to rely upon to test the credibility of the complainants' evidence, is a weak argument and should not be accepted.
  1. [294]
    As to the redaction of statements there are reasons why that occurred which includes:
  • some of the redacted information was of a private nature;
  • whilst the complainants' acknowledged their statements would be annexed to the Investigator's report, there was no evidence of them being told their statements would be provided to Zink; and
  • it cannot be assumed that the disclosure of the redacted material would not cause prejudice.
  1. [295]
    Disclosure of the redacted material, which does not relate to the allegations, but relates to other matters not the subject of the investigation or the show cause notice is likely to protract, rather than settle the dispute.
  1. [296]
    An alternative approach would be for the Commission to review the statements in their unredacted form to independently decide whether providing Zink with the unredacted material or parts thereof would assist in settling the dispute.

Galluccio's appropriateness as a decision maker

  1. [297]
    In response to the claim that Galluccio would not be an appropriate decision maker, the respondent submitted that:
  • he had not had a "close and continuing" involvement in the investigation;
  • he was not involved in the preliminary investigation;
  • decisions made or views expressed by him during the course of the investigation were not adverse or critical of Zink to a point where an assessment could be made that he may not be impartial;
  • the suspension decision had not lead to a conclusion that he had prejudged the allegations around Zink having engaged in misconduct;
  • from Galluccio's evidence the Commission could not conclude that he would not make his own independent and objective assessment on all the evidence put to him; and
  • whilst he reports to Keyes that does not of itself create an "inherent conflict of interest" with there being no evidence to suggest that he would be inclined to accept or reject evidence of Keyes because of that relationship.

Conclusion

  1. [298]
    There was no basis for making the orders sought by Zink and that they were not in any event, appropriate for the resolution of the industrial dispute.
  1. [299]
    The following orders would be appropriate for the resolution of the industrial dispute:
  • no orders be made as to the first and second suspension decisions;
  • the respondent withdraw the show cause notice;
  • the chief executive withdraws his delegation of powers to Mr Galluccio and delegates his powers under Chapter 6 of the PS Act, in respect of the applicant's employment, to a person who has not been involved in the initial complaints or any preliminary investigation of those complaints, the suspension decisions, the investigation conducted by Ms Roos, the grievance procedure or, this industrial dispute; and
  • that delegate be provided with the Investigator's report (as provided to the applicant) but excluding the statements made with respect to the applicant's cooperation with the investigation and also excluding the material inadvertently included in the redacted statements of the complainants.

Applicant's reply submissions

  1. [300]
    The previous submissions filed in the proceedings were reaffirmed and further submissions were made in respect of six topics.

Commission's function

  1. [301]
    Agreement existed in respect of the following propositions put by the respondent:
  • the Commission's function was to consider all of the facts and circumstances and to determine what steps were appropriate for the settlement of the dispute; and
  • the Commission's function was not constrained by the test of whether the action was "harsh, unjust or unreasonable".
  1. [302]
    There were contentions however, with those being:
  • the Commission is fully empowered to resolve the dispute by making its own findings of fact and determining what actions are appropriate, in a sense conducting a review of the merits of the case; and
  • even if this case was to fall within the type of "managerial prerogative" referred to in AMEPKU v QR[32] and Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3),[33] the Commission may nevertheless intervene if the action in question is "harsh, unjust or unreasonable".
  1. [303]
    The Commission when determining what (if any) orders are appropriate for the prevention of, or prompt settlement of the dispute pursuant to s 262(4)(d) of the IR Act would have regard for what was lawful and what in the circumstances was fair and reasonable.

Suspension decisions

  1. [304]
    In response to submissions from the respondent in relation to the suspension decisions it was submitted:
  • the respondent's reliance on the matter of Minister for Immigration and Citizenship v SZMDS[34] was misplaced as in this case the Commission does not sit in judicial review of the employer's conduct;
  • in general, if either of the suspension decisions was made in an unreasonable way or with unreasonable results, then that is a sufficient basis for the Commission to make orders to settle the dispute about the suspension;
  • it was not disputed that Galluccio did not enquire about Zink's skills to perform non-legal work roles and made no enquiries about those roles.  This brings into account the issues of lawfulness and reasonableness of the suspension decisions;
  • regardless of whether the failure (in both suspension decisions) to state a specific end date amounts to a breach of either s 137 or s 189 of the PS Act, the practical effect is that Zink was suspended from her employment with no means of knowing or ascertaining when the suspension may end or be reviewed;
  • setting aside the first suspension does not lack utility.  An order to set aside this decision would resolve the dispute between the parties; and
  • in regard to the second suspension, if Zink's complaints were upheld, the Commission could order (via a fresh delegate) a review or reconsideration of whether her employment should remain suspended.

Investigation Report

  1. [305]
    In response to the respondent's submissions on this issue it was submitted:
  • on the independence of the Investigator it may be accepted that the Investigator was not directly engaged by the respondent but was engaged by a law firm retained by the respondent.  There was no evidence of any particular steps taken by either the respondent or the law firm to establish that independence;
  • the claim that Zink should have worked out for herself the nature of the investigation should be rejected because it seeks to disavowal the respondent of its obligation to clearly communicate its decisions and actions to her;
  • the description of the role of the Investigator as an "arbiter of the evidence" suggests a sense of inevitability however the Investigator was an agent of the respondent's legal representative and acted on the respondent's instructions.  The respondent having elected to delegate the role of gathering and presenting evidence solely to the Investigator did not inoculate the process from scrutiny; and
  • the assessment by the Investigator of Zink's credibility was affected by the fact that the Investigator formed the view that the process had become protracted because of Zink's conduct.  There was nothing about Zink's cooperation with the process that would justify any adverse credibility finding, yet the Investigator proceeded to find various allegations to be substantiated against a background of finding all witnesses to be cooperative and credible, except Zink.  The exclusion of the Investigation Report should be preferred to merely excluding selected aspects of the report.

Disclosure

  1. [306]
    On the question of disclosure it was stated:
  • the respondent argued that procedural fairness did not require full disclosure to Zink of all material relevant to the proposed disciplinary process.  The Commission's function includes the determination of what was fair and reasonable, or appropriate, in order to settle the dispute about the extent of disclosure to be made in this particular case;
  • regardless of whether the withholding of full disclosure would be lawful on judicial review, it was submitted that withholding disclosure would be unreasonable in this particular case.  The Investigation Report forms the centrepiece of the disciplinary proceedings against Zink and without full disclosure of the material that was relied upon by the Investigator, the ability of Zink to contest adverse conclusions is substantially undermined;
  • if the respondent was permitted to rely on the Investigation Report, fairness dictates that it should disclose all material that influenced the preparation of that report; and
  • the "alternative approach" of having the Commission review the full statements to determine if it would be appropriate to disclose to Zink is not supported by any authority.  The unilateral inspection of documents by a court, even where that is appropriate, creates a risk that exposure to the material may disqualify the judicial officer from continuing to hear the matter.  This proposal is not appropriate.

Show cause notice

  1. [307]
    The concession by the respondent that the "show cause notice is ambiguous" justifies the relief sought and an order to set aside the show cause notice should be made.

Galluccio as decision maker

  1. [308]
    On the appropriateness of Galluccio as the decision maker it was submitted:
  • there was a close and continuing involvement by Galluccio in the investigation process and the characterisation by the respondent as him having made decisions of an "administrative nature" should be rejected; and
  • the relationship between Keyes and Galluccio (manager/subordinate) creates a conflict of duty or interest, and creates a reasonable perception that Galluccio might be influenced by that relationship when acting as the decision maker.
  1. [309]
    In any event, the respondent appears to accept that an appropriate order would be for the chief executive to withdraw the existing delegation and to delegate the relevant powers to a person who has not been involved in the relevant processes.

Conclusion

  1. [310]
    The task for the Commission is to determine whether certain aspects of a disciplinary process engaged in by the respondent were fair and reasonable in circumstances where Zink, as the subject officer, had specifically challenged the actions of the respondent and in particular the persons delegated to conduct the said process.
  1. [311]
    The Commission was not charged with making findings regarding the subject matter of the disciplinary process involving Zink and consequently those matters have not been the subject of consideration in the course of the arbitration.

Legislation

  1. [312]
    In the course of the proceedings both parties in written submissions turned their minds to the legislative provisions of the IR Act which were said to enliven the jurisdiction of the Commission.  They included:
  • s 262 - Action on industrial dispute;
  • s 447 - Commission's functions;
  • s 448 - Commission's jurisdiction;
  • s 451 - General powers; and
  • s 463 - Power to make declarations about industrial matters.
  1. [313]
    There was no contest between the parties in respect of the Commission being able to exercise the decision making functions pursuant to the provisions of the IR Act.

The Relief sought by Zink

  1. [314]
    The applicant in opening submissions sought the following relief:
  1. (a)
    An order setting aside the respondent's decisions to suspend the applicant from duty on 17 May 2018 and on 14 January 2019 or a declaration that those decisions were invalid or unreasonable.
  1. (b)
    An order that the Investigation Report commissioned by the respondent and dated 9 January 2019 be excluded from consideration in any disciplinary process undertaken by the respondent.
  1. (c)
    An order setting aside the show cause notice issued on 14 January 2019, and requiring:
  1. (i)
     Before any further consideration of disciplinary action is taken, the Respondent is to disclose to the Applicant full copies (without redactions) of any records of interview or witness statements obtained during the investigation of the relevant allegations.
  1. (ii)
    Any further consideration of disciplinary action be undertaken by a delegate other than Mr Salvatore (Sam) Galluccio.
  1. [315]
    The respondent in effect opposed each of the items subject of the relief application.

17 May 2018 - Suspension

  1. [316]
    The suspension had been at the hands of the Chief Executive of the respondent (Keyes) who had the delegated authority to exercise such discretion providing he held the reasonable belief that the "proper and efficient management of the department might be prejudiced if the officer is not suspended".
  1. [317]
    The PS Act at s 137(2)(3), (4) and (5) provides the following mandatory requirements for the suspension of an officer in circumstances similar to that of Zink:
  1. The notice must state -
  1. when the suspension starts and ends; and
  2. the remuneration to which the officer is entitled for the period of the suspension under subsection (5); and
  3. the effect that alternative employment may, under subsections (6) and (7), have on the entitlement.
  1. However, before suspending the officer, the chief executive must consider all alternative duties that may be available for the officer to perform.
  2. The period of the suspension can not be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice.
  3. During the period of the suspension the officer is entitled to normal remuneration, less any amount earned by the officer from alternative employment that the officer engages in during the period.
  1. [318]
    In correspondence generated by Keyes and handed to Zink at a meeting on 17 May 2018 she was informed that:
  • a number of complaints had recently been received regarding allegations of breaching Human Resources Policies applicable to her including but not limited to Workplace Harassment Human Resource Policy;
  • preliminary investigations had been conducted which raised significant matters that went to the issue of the proper and efficient management of the THHS;
  • based on the content of the complaints, Keyes held the reasonable belief that the proper and efficient management of the Legal Unit may be prejudiced if Zink was to remain in her current role and as such he believed suspension was warranted;
  • consideration had been given to alternative duties that may have been available for her to perform but none had been identified commensurate to her salary and skill level within a reasonable driving distance to her place of employment;
  • the suspension would commence from 17 May 2018 and unless otherwise advised would end once THHS had "determined what further action is appropriate including any management or disciplinary action";
  • the suspension was not by way of a disciplinary action; and
  • during the period of the suspension her THHS contact would be Galluccio.
  1. [319]
    In respect of her employment, further advice in the correspondence included:
  • she would receive her normal remuneration, less any amount earned in alternate employment;
  • the terms and conditions of her employment including the provisions of the Code of Conduct and other relevant policies would continue to apply; and
  • Employee Assistance Service was available.
  1. [320]
    In evidence in chief, Keyes identified a number of other factors considered regarding his belief that the proper and efficient management of the business may have been prejudiced should a suspension not occur.  These included:
  • seriousness of the allegations raised by multiple employees;
  • workplace health and safety risks and obligations;
  • if not suspended Zink, may have had the opportunity to interfere in the investigation or take reprisal action against the complainants; and
  • there was no one senior to Zink in the Legal Unit to supervise her behaviour.
  1. [321]
    In respect of alternate duties, it was Keyes' evidence that one of the difficulties was Zink had previously "clearly stated" she would only work in certain locations across the business due to the importance of being in the proximity of her files.  Also, according to Keyes, the fact that Zink was a solicitor meant there were limited alternative roles in the business which she could perform.
  1. [322]
    Keyes in or around November 2017 had been approached by employees of the Legal Unit regarding allegations about Zink's behaviour which prompted a suggestion from him that such concerns should be formalised.  Whilst that had not occurred he nevertheless had some knowledge that subordinate staff to Zink were raising issues, be it informally, of alleged conduct by Zink and when coupled with letters of complaint, again from subordinates of Zink including some who occupied legal roles in the Legal Unit, were received in April 2018, he was faced with ensuring that the Unit continued to operate in a proper and efficient way.
  1. [323]
    Solely on whether Keyes held a "reasonable belief" that for the Legal Unit to continue to operate in a proper and efficient manner, it could only do so by the imposition of a suspension on Zink pursuant to s 137 of the PS Act, I am satisfied that based on the evidence of Keyes in the proceedings there were grounds that sufficiently support he held a reasonable belief at the time of making the decision on 17 May 2018.  Significantly, the nature of the complaints against Zink were serious, and in amongst Keyes' considerations it was important that as the Chief Executive of the business he met his duty of care and responsibilities to the subordinate staff of Zink, in what would more likely than not have been "testing" circumstances had she remained in her role as Legal Counsel for the respondent.
  1. [324]
    In terms of alternative duties the evidence of Keyes was that he had considered if there were any alternate duties which Zink may have been able to perform and in his judgement there were no such duties that could have been allocated to her, citing difficulties that included:
  • her status as a solicitor;
  • the need to ensure she remained separate from the complainants and other potential witnesses; and
  • to prevent potential interference with the investigation.
  1. [325]
    Further compounding the situation were the factual circumstances that the respondent was a prescribed hospital and health service which denied him the opportunity to unilaterally effect a placement with another health service.  There were also issues regarding trust if the allegations were to be proven which hindered a placement in another legal office.
  1. [326]
    Zink had not, subject to the requisite standard of proof, established that Keyes failed to meet his obligations in accordance with s 137(3) of the PS Act.
  1. [327]
    Argument was advanced by Zink that the decision to suspend her employment was invalid for reasons that included the failure to state when the period of suspension would end, specifically no date was nominated as an end date.
  1. [328]
    The notice of suspension stated in clear terms that the suspension would end once "THHS had determined what further action was appropriate, including any management or disciplinary decision".  There were in my view obvious difficulties in identifying an end date when there was to be an external investigation undertaken which the respondent could not manage to the point of guaranteeing when such investigation would be completed and in any event the PS Act at s 137(2)(a) does not require a numerical date to be included in the notice of suspension.  Effectively, what occurred was that once the final Investigation Report was received by the respondent on 9 January 2019, the delegate determined that a show cause notice be issued and the suspension under s 137 of the PS Act was ended and a new suspension under s 189 of the PS Act was initiated.
  1. [329]
    In the course of the s 137 suspension, Zink received the remuneration for which she had an entitlement, with no evidence advanced she was "out of pocket" or disadvantaged financially due to the suspension.
  1. [330]
    Putting aside the argument from the respondent that there was no utility in interfering with the s 137 suspension, I am satisfied that in all the circumstances, the Chief Executive in suspending the employment of Zink on 17 May 2018 had done so in a manner that was compliant with s 137 of the PS Act and ought not be disturbed.

14 January 2019 - Suspension

  1. [331]
    The initial suspension of Zink under s 137 of the PS Act remained in place until 14 January 2019 when correspondence (incorrectly dated 14 December 2018) was received by her that had the effect of commencing a "new" suspension from 14 January 2019.
  1. [332]
    The correspondence under the signature of Galluccio required Zink's participation in a show cause process in respect of allegations said to have been substantiated in an Investigation Report prepared by QWS (dated 9 January 2019).  The report was attached to the correspondence and a summary contained in the correspondence stated the following:
  • used inappropriate and unprofessional language in the workplace, in the presence of your colleagues;
  • engaged with Deborah Haley in an aggressive and intimidating manner causing her distress and to take time off work;
  • engaged with Jennifer Grant in a belittling, humiliating and threatening way;
  • had aggressive and unprofessional temper outbursts in the workplace;
  • directed Deanna Minchio to remove bank guarantees from the safe, knowing that they were not securely stored;
  • pressured colleagues on an interview panel to change the scores of candidates for the Legal Support Officer role in December 2017;
  • repeatedly and unreasonably questioned and challenged Emma Hall, made belittling, humiliating, threatening, intimidating and untruthful comments to Ms Hall and unreasonably excluded and alienated her from work colleagues.  This behaviour has caused Ms Hall distress and to take time off work; and
  • failed to cooperate fully with the investigation conducted by Corlia Roos and gave contradictory evidence when questioned about the allegations.
  1. [333]
    In terms of the suspension the correspondence informed Zink that s 189(1) of the PS Act stated:

The chief executive may suspend a public service employee from duty if the chief executive reasonably believes the employee is liable to discipline under a disciplinary law.

Further, pursuant to s 190(2) of the PS Act:

However, natural justice is not required if the suspension is on normal remuneration.

  1. [334]
    Galluccio confirmed he had the delegated authority to consider the suspension of Zink's employment on behalf of the chief executive and whilst no findings had been made in relation to the allegations levelled against her, based on the matters raised by the Investigation Report, he held a reasonable belief that Zink was liable for discipline under a disciplinary law.  Also, pursuant to s 189(2) of the PS Act, he had given consideration to all alternative duties that she may have been able to perform that were commensurate with her salary and skill level and had not been able to source alternate duties within the THHS.
  1. [335]
    Accordingly, she was to be suspended on full pay commencing from the receipt of the correspondence and "unless otherwise advised, will end once THHS has determined what further action is appropriate, including any management or disciplinary action" with the terms and conditions of her employment continuing to apply.
  1. [336]
    Should there be any questions regarding the content of the correspondence or the process she was advised to contact Galluccio.
  1. [337]
    The case for Zink in respect of this suspension was that in all circumstances the decision to suspend the employment was "harsh, unjust or unreasonable" on the basis that Galluccio had not met the test under s 189(1) of the PS Act which required belief that Zink was liable for discipline.  The evidence according to Zink revealed that Galluccio was both confused about what s 189(1) of the PS Act required of him and about what he did in fact believe.
  1. [338]
    Reliance was placed upon Rockett where the High Court of Australia had said that reasonable belief "requires the existence of facts which are sufficient to induce that state of mind in a reasonable person".[35]  That particular matter related to the issue of a search warrant that identified two objects of the search in a criminal proceedings as a bundle of A4 pages in the handwriting of the [then] Sir Terence Lewis and a part of the transcript of evidence.  The High Court at paragraph 23 of the decision stated:

In fact, neither of the objects of search (that is, the bundle of A4 pages and the part of the transcript of evidence) was identified in the complaint or the purported search warrant by a description which required that it contain some statement or statements relevant to the commission of one or other of the alleged offences.  The sworn complaint was inadequate to found a conclusion that the identified bundle of documents would, if found, actually contain such a statement or statements. Consequently, the complaint was inadequate to found the magistrate's conclusion that there were reasonable grounds for "believing" that the designated objects of the search would, if found, afford evidence as to the commission of an offence.  It follows that the terms of the search warrant were not supported by the sworn material placed before the magistrate.[36]

  1. [339]
    Significantly, the circumstances in this matter stand apart from those in Rockett, in that in this case Galluccio had formed a reasonable belief that Zink was liable to discipline under a disciplinary law, based not upon a "fishing expedition", but after having been provided with the Investigation Report (of some 109 pages) which had arisen from an investigation into complaints made against Zink from subordinate employees in the Legal Unit.  The terms of reference for the investigation stated:
  • You are engaged for the purpose of independently conducting a fact-finding investigation and reporting on the circumstances which relate to the allegations made by the above employees (identified above), including:

Workplace Bullying and Harassment

  1. That Ms Zink bullied and harassed Ms Hall or otherwise acted in breach of THHS policies, as outlined in Ms Hall's written complaint;
  2. That Ms Zink bullied and/or harassed Ms Minchio or otherwise acted in breach of THHS policies, as outlined in Ms Minchio's written complaint;
  3. That Ms Zink bullied and harassed Ms Grant or otherwise acted in breach of THHS policies, as outlined in Ms Grant's written complaint.
  1. [340]
    The findings of the Investigator having been assessed on the evidence available and on the balance of probabilities were that of the twenty-five allegations put to Zink, there was sufficient evidence to substantiate thirteen of the allegations and a further nine allegations were substantiated in part.  The substantiated allegations included:

. . . allegations that the Respondent (Zink) made inappropriate remarks to team members, acted in an aggressive and intimidating manner towards team members, made belittling and humiliating comments to team members, had temper outbursts in front of team members, repeatedly and unreasonably questioned team members, mislead team members, and inappropriately criticised team members in front of other team members.

  1. [341]
    Galluccio in the correspondence confirming the suspension of Zink from 14 January 2019 indicated that in accordance with the principles of natural justice, no determination of her liability had been made in relation to the allegations, and that such would remain until she had the opportunity to respond.
  1. [342]
    I am satisfied that a reasonable person provided with the Investigation Report, as had been the case with Galluccio, could have held a reasonable belief that Zink may well be liable to discipline under a disciplinary law on the basis of the substantiation and partsubstantiation of twenty-two allegations by the Investigator, particularly when the nature of the allegations as they related to workplace activity were taken into account.
  1. [343]
    The reliance by Galluccio on the same factors as Keyes relating to alternate duties not being available was the subject of criticism by Zink, however in the correspondence received by her on 14 January 2019 he stated, "I have given consideration to alternate duties that are commensurate with your salary and skill level.  From my discussions, I believe there are no suitable alternate duties within THHS".  I accept on the face that Galluccio had undertaken an assessment of what alternate duties may have been available and bearing in mind there was an absence of cogent evidence from Zink identifying specific vacancies available at the time in which she could have been placed, then the suspension was not deficient for this reason.
  1. [344]
    On the failure of Galluccio to identify a numerical end date of the suspension, this should be considered in the same context as the earlier suspension based in this case on the requirements of s 192(2)(a) of the PS Act that requires a notice of suspension to state, "When the suspension starts and ends" and not a numerical date.
  1. [345]
    As was the case with the earlier suspension, Zink continued to receive the remuneration to which she was entitled and no argument was advanced that this had not occurred.
  1. [346]
    I am satisfied that the decision of Galluccio in suspending the employment of Zink on 14 January 2019, pursuant to s 189 of the PS Act, should not for the purposes of this application be disturbed for the reason that it had been carried out in accordance with the requirements of the said Act.

Investigation Report - Excluded from any disciplinary process

  1. [347]
    In correspondence forwarded to Zink (dated 25 May 2018) under the signature of Keyes she was informed that the THHS were committed to thoroughly investigating the complaints made against her and that QWS had been appointed as the Investigator.
  1. [348]
    In further correspondence (dated 27 June 2018) under the signature of Galluccio, advice was given to Zink that the Investigator (Roos) had now had the opportunity to speak with relevant witnesses and review documentation relating to the allegations about her conduct.  The role of the Investigator was to ensure that she was afforded the opportunity to respond to each of the allegations that had been made against her.  An attachment to the correspondence provided a summary of the particulars of each allegation.
  1. [349]
    As part of the investigation Zink was requested to attend an in-person interview with Roos on 10 July 2018 at 10.00 am for the purposes of discussing these matters.  A period of four hours had been set aside for the interview with advice that included:
  • having the opportunity to provide any information she believed was relevant to each allegation, including any documentation/material;
  • at her discretion she would be afforded the opportunity following the interview to provide any additional documentation for consideration by the Investigator; and
  • a support person was welcome to attend the interview with her.

Appointment of Investigator

  1. [350]
    The appointment of the Investigator had been facilitated by McCullough Robertson (THHS's Legal Representatives) who provided the Terms of Reference to the Investigator on 24 May 2018.

Basis of objection

  1. [351]
    The argument identified by Zink as the basis for excluding the Investigation Report from being considered in the disciplinary process included:
  • the production of the report was unfair or unreasonable due to the lack of clarity and particulars;
  • the refusal of adequate disclosure during the investigation process;
  • inadequate access to records held by the respondent; and
  • the Investigator was said to have demonstrated a prejudgement of Zink's cooperativeness and credibility.
  1. [352]
    The evidence in the proceeding affirms that in respect of the investigation process there were numerous occasions where Zink had sought to depart from the timelines put in place by the Investigator, firstly in respect of presenting for interview and then in providing written responses to the Investigator following the interview process.  Each of the requests made by Zink were accommodated by the Investigator and had the effect of extending the period of the investigation.
  1. [353]
    The evidence in the proceedings from the Investigator (Roos) revealed that:
  • she held legal qualifications;
  • had significant experience with regard to employment matters; and
  • she had conducted 25 fact finding investigations and overseen 70 workplace investigations for QWS.
  1. [354]
    In the first interview with Zink on 23 July 2018 time was spent explaining the investigation process, answering questions about her role and providing further details around the allegations.  A "mock question session" was engaged in, at the Investigator's suggestion, to illustrate to Zink how the process would work.
  1. [355]
    According to the recall of the Investigator, Zink had not appeared distressed during the first interview, had responded to allegations she considered were accompanied by sufficient detail and had taken several lengthy breaks during the course of the interview.  In the second interview which was conducted by telephone she evidenced that Zink had interrupted her on several occasions and she had kept her responses short to avoid antagonising her.
  1. [356]
    The purpose of the Investigation had been fact finding to determine whether the complaints were accurate and to obtain as much detail as possible from Zink to enable follow up to occur with potential witnesses mentioned by Zink in the interview.  Beyond providing the Investigation Report to her instructor, the Investigator had no further involvement in the matter.
  1. [357]
    Despite criticisms levelled by Zink regarding the investigation process, it is evident that she was afforded every opportunity to participate in the process, including the provision of written and supplementary written responses, in addition to two interviews which on the face had the effect of nullifying the allegation of prejudgement that had been levelled against the Investigator due to this exercise of natural justice by the Investigator.
  1. [358]
    The parties remain at odds over the issue of disclosure to Zink of material relevant to the investigation into the allegations against her, mainly in terms of having been provided with documentation that in some cases had been significantly redacted.  The Investigator gave evidence that in conducting the redaction process she had erred on the side of caution to ensure that she left in everything that related broadly to the allegations.  There were sound reasons, according to the Investigator, for not providing statements in the course of an investigation because they often contained derogatory or defamatory statements and there was always the possibility of persons having to work together in the future.
  1. [359]
    In regard to concerns raised about the Investigator having demonstrated a prejudgement of Zink's cooperativeness and credibility, the Investigation Report in the Summary of Findings contained the following;

Credibility

Complainants and witnesses

The complainants and witnesses interviewed during the course of the investigation were cooperative with the Investigator and the process.  The Investigator did not hold any concerns in relation to the credibility of any complainant or witness.

The Respondent raised with the Investigator, both in her written responses and during her oral evidence, a concern that the complainants have colluded in presenting their evidence and compiling their statements.  The Respondent also alleged that the complainants may have breached their obligations to maintain confidentiality throughout the investigation.  The Respondent did not provide the Investigator with any evidence in support of her claims, other than numerous observations in her written responses that there were similarities in the evidence and terminology used by the complainants.  The Investigator considered the Respondent's concerns and finds that there is no evidence of collusion amongst the complainants, nor of breaches of confidentiality.

Respondent

The Investigator does, however, hold concerns regarding the credibility of the Respondent, and the delays experienced in obtaining the Respondent's responses to the allegations.  The Investigator formed the view that the Respondent was not forthcoming in her evidence, at times evasive and also contradicted her own evidence.  The Respondent also failed to provide the Investigator with documentation, though she had access to the documentation and she claimed in her responses that those documents were important.  The Respondent made very few concessions regarding her own behaviour and conduct towards her team members, and the Investigator formed the view that she had limited understanding of the impact of her behaviour on her team members.  The Respondent was also unwilling to take any responsibility for numerous negative interactions with her team members (as substantiated in this report), but was quick to shift blame to others.

  1. [360]
    In circumstances where allegations had been made against a senior employee, that were serious in nature, it would be highly unusual for the employer not to conduct some form of investigation to establish the genuineness or otherwise of the complainants before deciding whether it was appropriate for a disciplinary process to be undertaken.
  1. [361]
    In this case the THHS chose to have their legal representatives engage an external provider for the purposes of a fact finding investigation following complaints of serious misconduct and behaviour against Zink by a number of subordinate co-workers.  At the conclusion of the investigative process an Investigation Report was furnished to the THHS legal representatives and subsequently passed on to their client.
  1. [362]
    The Investigation Report tendered in the proceedings was in the view of the Commission a document of some standing in terms of both presentation and content, reflecting the thoroughness of the Investigator in undertaking the fact finding investigation.  The evidence from Zink in the proceedings regarding the conduct of the investigation is not accepted regarding deficiencies in the investigation process being of a level which would prompt a finding that the investigation ought be excluded from consideration in any disciplinary process undertaken by the respondent.  In particular, it is not evident that there was a lack of clarity in the report in respect of particulars of the allegations, nor does the evidence support Zink having been denied adequate access to records to assist with her response to the allegations, when on 10 September 2018 she was provided access to the recording of her interview with the Investigator.  Also, on 2 November 2018 Zink was given details how to access her email account and electronic files for one week.
  1. [363]
    The Investigator in preparing the Investigation Report as mentioned earlier, expressed a view regarding issues with credibility relating to Zink and others which in the circumstances of having conducted an investigation of this nature could hardly be considered as unreasonable.

Disclosure to Zink of full copies (without redaction) of any records of interview or witness statements obtained during the investigation of the relevant allegations

  1. [364]
    On 29 June 2018 Zink received written advice from the respondent regarding the commissioning of an investigation and the role of the Investigator in the investigation of complaints that had been made regarding her conduct in the workplace.  Attached to that correspondence were details of the allegations which prompted her to generate correspondence where she requested:
  • provision of all documentation and witness statements to be relied upon in the course of the investigation; and
  • a copy of the appointment letter and the terms of reference for the proposed investigation.
  1. [365]
    On 6 August 2018, following the 23 July 2018 interview with the Investigator, correspondence was forwarded to Zink under the signature of Galluccio where he expressed his disappointment regarding her unwillingness to respond to each allegation despite having been provided with what he considered to be sufficient information.  In any event, he indicated he was prepared to provide what he believed to be relevant extracts of five witness statements prior to her attending a further interview or providing written responses.
  1. [366]
    Zink in providing written responses to the Investigator on 12 October 2018 again raised concerns in terms of not having been given access to information relevant to the allegations, including the original complaints, and had at all times been consistent in challenging the lack of relevant disclosure.  In opening submissions, Zink identified deficiencies in the disclosure process that included:
  • having not been provided with copies of all the evidence available to the Investigator in the form;
  • statements in full from Hall, Grant, Minchio, Haley and Gianoulis (having only been provided with redacted copies);
  • statements or records of interview in respect of Keyes and Kelly; and
  • any further statements or records of interview in respect of witnesses interviewed after Zink's written response.
  1. [367]
    The Investigator/THHS had been reluctant to positively address the requests made by Zink for the production in full of material in their possession said to be relevant to the allegations levelled against Zink and the subsequent investigation of such allegations.
  1. [368]
    In the evidence during the proceeding, the Investigator provided an explanation on the supply of the redacted statements to Zink as it related to that material.  It was the case that there were two categories of redaction, those being:
  • material that was very personal, emotive opinion that didn't relate to the factual allegations and in some cases related to the complainant's own personal medical conditions; and
  • a large component of the complainants' material raised issues regarding Zink's work performance including her interaction with clients, none of which was covered by the scope of her instructions and were not put to Zink in the investigation.
  1. [369]
    The Investigator held the view that it was highly unusual to furnish Zink with the redacted statements and it was the first time she had ever engaged in such conduct.  Sound reasons existed for not providing such material that included:
  • the possibility of people having to work together in the future; and
  • the material often contained derogatory or defamatory statements.
  1. [370]
    The Investigator evidenced that the redaction process had been very difficult and she had left in everything that she thought related broadly to allegations to ensure it was a complete picture.  A question arose out of the evidence of the Investigator regarding whether the redacted statements provided to Zink were the same as those provided to the instructors who had engaged her.  It was possible she may have picked the wrong one from her filing system.  There was also the concession that some issues existed with the uploading of some of the statements in connection with the Investigation Report.  The disclosure to date had not included any witness statements taken in connection with the investigation.
  1. [371]
    The THHS in opposing further disclosure had relied upon the authority of Coutts v Close regarding the obligation to provide unredacted transcripts of interviews between an Investigator and witnesses, where Griffiths J had said:

Generally speaking . . . however, and subject naturally to the particular statutory context, procedural fairness does not require that a decision maker adopt an 'open file' policy which would have the effect of disclosing every submission or piece of evidence to an affected party . . . Ultimately, the fundamental issue here is whether the applicant was given a reasonable opportunity to address issues relevant to his interests.[37]

  1. [372]
    Also, it was the case that to accede to Zink's request it would be at odds with the decision in Wirth where it found that procedural fairness required that during an antecedent fact finding investigation, an employee did not have to be provided with evidence that was not going to be relied upon.
  1. [373]
    In this case, Zink had been informed that all of the redacted sections of the provided statements contained material that was not relevant to the considerations of the Investigator and in correspondence (dated 18 December 2018), the following advice was given to Zink's lawyers by lawyers acting for the THHS:

As previously stated, our client has engaged Ms Roos to conduct a workplace investigation.  Although allegations have been put to your client and her responses sought, this is not a disciplinary process and no disciplinary determinations will be made by Ms Roos.  This is a fact finding investigation and, therefore, procedural fairness does not require your client to be provided with copies of statements or recordings of interviews and these will not be provided.

We can confirm that Ms Roos has interviewed Emma Hall, Jennifer Grant, Deanna Minchio, Deborah Haley, Malanie Gianoulis, Sharon Kelly and Kieran Keyes.  Your client was provided with the statements produced by the first five interviewees as a matter of courtesy and to encourage her responses to the matters which form the subject of the investigation.  The latter two witnesses were only interviewed this week, in response to issues relating to the allegations which were then mentioned by your client in her supplementary statement.  These two additional witnesses did not raise any new allegations and, therefore, your client will not be provided with statements from these interviews.

  1. [374]
    In Wirth, there were questions raised over the failure of the decision maker to meet minimum standards, that before a decision was made on whether or not an allegation was actually established, Dr Wirth ought to have been provided with:
  • all the information the delegate intended to rely upon when determining whether an allegation could be substantiated; and
  • what evidence was being relied upon to support the allegation.
  1. [375]
    In this case, Zink was informed that certain material contained in the complainants' statements (redacted) had not been considered relevant to the allegations.  On the authority of Wirth there was the appearance of Zink having received all material relevant to the investigation of the allegations.  However, it has emerged as a consequence of the Investigator's evidence, that there was some uncertainty about what had been provided to Zink and the Investigator's instructors which requires the issue of disclosure be further considered.
  1. [376]
    The matter of disclosure is in this instance of more importance than when sought in the investigation stage of the process, because of the fact that Zink is now being required to participate in a show cause process, following the decision of Galluccio that he reasonably believed Zink was liable to discipline under a disciplinary law.
  1. [377]
    I intend, based upon consideration of the evidence, to vary the disclosure of the complainants' statements to Zink, which amongst other things, provides Zink with material said not to have been considered and if the evidence of the Investigator stands then fears held by Zink would be put to rest.  On the other hand, if there exists material that may assist Zink going forward should the disciplinary process continue, then that would be viewed as an extension of natural justice.
  1. [378]
    I am mindful of the concerns raised against any additional disclosure in respect of the effect it may have should the parties re-establish the workplace relationship, however Zink proceeded to request the additional disclosure with her "eyes wide open" to that factor and this would have to be considered in those terms if such concerns emerge at a later date.
  1. [379]
    In final written submissions there was an extended proposition advanced by Zink that disclosure ought to reflect the following:
  • an order requiring that, before any further consideration of disciplinary action is taken, the respondent is to disclose to the applicant full copies (without redactions) of any complaints, records of interview (including audio recordings), and witness statements obtained during the investigation of the relevant allegations.
  1. [380]
    In determining if there should be some relief granted to Zink in respect of disclosure, I have considered the full gamut of disclosure sought in final submissions and believe that in its entirety it would be beyond what would reasonably be expected in affording natural justice to Zink.

Any further consideration of disciplinary action be undertaken by a delegate other than Galluccio

  1. [381]
    In terms of this order sought by Zink, it was the case that in final submissions the THHS conceded that the disciplinary process going forward could not reasonably continue as planned and offered the following as orders appropriate for the resolution of the industrial disputation between the parties:
  • the respondent withdraw the show cause notice;
  • the chief executive withdraws his delegation of powers to Mr Galluccio and delegates his powers under Chapter 6 of the PS Act, in respect of the applicant's employment, to a person who has not been involved in the initial complaints or any preliminary investigation of those complaints, the suspension decision, the investigation conducted by Ms Roos, the grievance procedure or, this industrial dispute;
  • that delegate be provided with the Investigator's report (as provided to the applicant) but excluding the statements made with respect to the applicant's cooperation with the investigation and also excluding the material inadvertently included in the redacted statements of the complainants.
  1. [382]
    Zink acknowledged the concession by the THHS that the existing delegation be withdrawn and in submissions in reply revisited the previous argument around the continuing involvement of Galluccio in the disciplinary process identifying the following concerns:
  • Galluccio's continuing involvement in the investigation process;
  • characterisations of Galluccio as having made decisions of an 'administrative nature' during the investigative process; and
  • the relationship between Keyes and Galluccio (Manager/subordinate) created a conflict of duty or interest.
  1. [383]
    On consideration of the position advanced by each party, I intend to make orders regarding the ongoing show cause process that includes the appointment of another delegate to review the ongoing disciplinary process.

Findings

  1. [384]
    On consideration of the evidence, material and submissions before the proceedings, I make the following findings:
  • 17 May 2018 - Suspension was compliant with s 137 of the PS Act and ought not be disturbed;
  • 14 January 2019 - Suspension was compliant with s 189 of the PS Act and ought not be disturbed;
  • the Investigation Report prepared by Roos in respect of the allegations that had been levelled against Zink by subordinate employees ought not be excluded from any ongoing disciplinary process, on the basis that subject to the requisite standard of proof Zink had failed to establish that the report was deficient to the extent it would warrant such exclusion;
  • the THHS be required to extend the disclosure of material to Zink beyond that already provided;
  • the existing show cause notice be withdrawn, forthwith; and
  • the delegation of powers by Keyes to Galluccio to act as the delegate in respect of the disciplinary process involving Zink be withdrawn forthwith.

Orders

  1. [385]
    It is ordered:
  1. That the Show Cause Notice issued by Galluccio to Zink on 14 January 2019 be withdrawn, forthwith.
  1. The THHS Chief Executive (Keyes) pursuant to s 103(1) of the PS Act exercise the power to appoint an appropriately qualified person to replace Galluccio as the delegate in the disciplinary process involving Zink.

The delegate ought not be a person subordinate to Keyes or a person who had been involved previously in the disciplinary process relating to Zink.  It is likely the replacement delegate will be a person external to the THHS.

  1. Once appointed, the delegate should be provided with all relevant documentation including:
  • complaints;
  • complainants' witness statements;
  • any other witness statements;
  • Investigation Report; and
  • any other material relevant to the disciplinary process.

Note:  Any material relating to aspects of Zink's cooperation or otherwise with the investigation is to be withheld from the replacement delegate.

  1. Within thirty (30) days of the delegation taking effect, the delegate is required to determine, based upon the material provided to them whether grounds for discipline pursuant to s 187 of the PS Act exist and, if so, should Zink's employment continue to be suspended pursuant to s 189(1) of the PS Act.
  1. If the delegate determines that grounds for discipline pursuant to s 187 of the PS Act exist in respect of Zink, a new Show Cause Notice should be issued and at the same time Zink be provided with the complainants' witness statements and any other witness statements to be relied upon by the delegate, unredacted, except in circumstances where there is content that relates to a person's medical circumstances.
  1. In the interim, Zink is to remain suspended from employment on the remuneration to which she is entitled for the duration of the suspension.

However, if after thirty (30) days from the appointment of the replacement delegate, no decision has been made regarding whether the disciplinary process is to proceed or otherwise, Zink would be able to make application to the Commission regarding relief in respect of her suspension.

Footnotes

[1] Exhibit 1.

[2] s 262(3)(b).

[3] s 262(4)(d).

[4] Section 20(4) of the Hospital and Health Boards Act 2001 (Qld) and Schedule 1AA of the Hospital and Health Boards Regulation 2012.

[5] The version of Policy E14 annexed to Ms Zink's first statement that appears as annexure SZ2 to Ms Zink's statement of 7 June 2018 only took effect in October 2018.  Prior to that, Policy E14 did not apply to a prescribed hospital and health service.

[6] Public Service Bill 2008, Explanatory Notes, p 31.

[7] For a statement of that principle see e.g.: Kioa v West (1985) 159 CLR 550 per Mason J, pp 584-585.

[8] Wirth v Mackay Hospital land Health Service & Anor [2016] QSC 39 [113].

[9] Kioa v West (1985) 159 CLR 550, 584-585.

[10] South Australia v O'Shea (1987) 163 CLR 378 per Mason CJ, 389.

[11] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [19]-[33].

[12] Kioa v West (1985) 159 CLR 550, 629;  VEAL v Minister for Immigration and Multicultural and Indigenous Affairs (2005) 225 CLR 88, 96-97.

[13] Vega Vega v Hoyle & Ors [2015] QSC 111;  Coutts v Close [2014] FCA 19, [114].

[14] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [21]-[25].

[15] Ibid, [33]-[34].

[16] Coutts v Close [2014] FCA 19, [114].

[17] QSU v Sunshine Coast Regional Council (2009) 192 QGIG 79.

[18] Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16.

[19] The Automotive, Metals, Engineering, Printing and Kindred Industries Industrial Union of Employees AND QR, as cited by Asbury C.

[20] Case v State of Queensland (Department of Attorney-General, Queensland Corrective Services) [2017] QIRC 48.

[21] Byrne v Australian Airlines Ltd (1995) 185 CLR 410, [129]-[130].

[22] Dorante-Day v Marsden [2019] QSC 125, [34].

[23] George v Rockett (1990) 170 CLR 104, 116.

[24] Mason v MWREDC Limited [2011] FCA 1512.

[25] Berenyi v Maynard [2015] QSC 370, [80].

[26] Wirth v Mackay Hospital and Health Service [2016] QSC 39.

[27] Coutts v Close [2014] FCA 19, 114.

[28] Dorante-Day v Marsden [2019] QSC 125, [29]-[33].

[29] Ibid, [34].

[30] Minister for Immigration and Citizenship v SZMDS (2010) HCA 16; 240 CLR 611; 84 ALJR 369, 40.

[31] Wirth v Mackay Hospital land Health Service & Anor [2016] QSC 39, [99].

[32] AMEPKU v QR (2000) 165 QGIG 526.

[33] Queensland Nurses Union of Employees v Sundale Garden Village, Nambour (No 3) (2006) 182 QGIG 16.

[34] Minister for Immigration and Citizenship v SZMDS [2010] HCA 16; 240 CLR 611; 84 ALJR 369.

[35] George v Rockett (1990) 170 CLR 104, [8].

[36] Ibid, [23].

[37] Coutts v Close [2014] FCA 19.

Close

Editorial Notes

  • Published Case Name:

    Shannan Zink v Townsville Hospital and Health Service

  • Shortened Case Name:

    Zink v Townsville Hospital and Health Service

  • MNC:

    [2019] QIRC 181

  • Court:

    QIRC

  • Judge(s):

    Thompson IC

  • Date:

    22 Nov 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.
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