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  • Unreported Judgment

Paxton v Children's Health Queensland, Hospital and Health Service

 

[2020] QIRC 8

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Paxton v Children's Health Queensland, Hospital and Health Service [2020] QIRC 008

PARTIES: 

Paxton, Brian

(Applicant)

v

Children's Health Queensland, Hospital and Health Service

(Respondent)

CASE NO:

B/2019/50

PROCEEDING:

Application for an injunction

DELIVERED ON:

15 January 2020

HEARING DATES:

23 August 2019

27 November 2019

4 December 2019 - Applicant's submissions

11 December 2019 - Respondent's submissions

MEMBER:

Thompson IC

ORDERS:

1. The disciplinary action commenced on 12 March 2019 against Paxton is to cease forthwith and be recommenced afresh pursuant to subsequent orders made by the Commission specifying the conduct to be observed by the CHQHHS initially and then the delegate appointed in connection with the process.

2. A formal investigation into the allegations that had been levelled against Paxton as a result of the complaint formally made by Gray on 8 July 2019 is to be commissioned by the CHQHHS, utilising the services of a provider external to the Health Service.

3. The CHQHHS is to exercise the lawful powers of delegation available to appoint an appropriately qualified person to perform the role as the delegated decision maker in the disciplinary action involving Paxton.

The appointed delegate will be someone without any previous involvement in the disciplinary process, thus far, and from outside the work unit where Paxton is employed.

4. Upon appointment, the delegate should be provided with all relevant material relating to the disciplinary action excluding the previously issued Show Cause Notices.  Further, upon completion of the formal investigation, a copy of any report emanating from that procedure is to be provided to the delegate without delay.

5. The delegate, once in possession of all material pertinent to the disciplinary action, is required to determine based upon the material at their disposal, whether grounds exist for discipline pursuant to s 187 of the PS Act and, if so, should Paxton's employment continue to be suspended in accordance with s 189(1) of the PS Act.

6. If it is determined by the delegate that grounds exist for a disciplinary action pursuant to s 187 of the PS Act, a new Show Cause Notice will be issued, and at the same time Paxton should be provided with all material to be relied upon in the determination of the said action.

7. In the interim, Paxton is to remain suspended from employment on his full remuneration.

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR AN INJUNCTION - where employer has made a series of allegations against employee for misconduct - where disciplinary process - where second show cause notice issued - whether lack of particulars provided in show cause notice - whether process inadequate and flawed

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld), s 451, s 463, s 473, s 539

Public Service Act 2008, s 187, s 188, s 189

Hospital and Health Boards Act 2011, s 30

Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336

Dorante-Day v Marsden [2019] QSC 125

George v Rockett (1990) 170 CLR 104

Berenyi v Maynard & Anor [2015] QSC 370

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

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

Minister for Immigration and Citizenship v SZMDS (2010) HCA 16

Etherton v Public Service Board of New South Wales (1985) 1 NSWLR 430

Walters v Drummond & Ors [2019] QSC 290

APPEARANCES:

Mr M. Rawlings, Counsel instructed by Ms T. Bidgood, Susan Moriarty & Associates for the Applicant.

Mr M. McKechnie, Counsel instructed by Ms H. Smith, Minter Ellison for the Respondent.

Decision

 Background

  1. [1]
    An application was lodged with the Industrial Registrar on 5 August 2019 by Brian Paxton (Paxton/the applicant) pursuant to s 473 of the Industrial Relations Act 2016 (the IR Act), seeking an injunction against the Children's Health Queensland, Hospital and Health Service (CHQHHS/the respondent) in the following terms:
  1. The Respondent is restrained from taking further action in relation to any factual matter contained in the statement of Ms Gray dated 8 July 2019;
  2. The show cause processes commenced on 3 April 2019 and 9 July 2019 are permanently stayed and cannot be re-recommenced without the leave of the Commission;
  3. No part of the show cause processes commenced on 3 April 2019 and 9 July 2019 can be used in any future action without the leave of the Commission;
  4. In the alternative, the show cause processes commenced on 3 April 2019 and 9 July 2019 is (sic) set aside and may only be recommenced after the completion of formal investigation conducted by a person who is not an employee of the Respondent.

Standard of Proof

  1. [2]
    The standard of proof upon which an application of this nature must be determined is that of "on the balance of probabilities".

Evidence

  1. [3]
    In the course of the proceedings evidence was provided by three witnesses.
  1. [4]
    The Queensland Industrial Relations Commission (the Commission) in deciding to precis the evidence of the witnesses and submissions, notes that all the material has for the purposes of this decision been considered in its entirety.

Witness Lists

  1. [5]
    The witness for the applicant was:
  • Paxton.
  1. [6]
    The witnesses for the respondent were:
  • Dominic Tait (Tait); and
  • Alan Fletcher (Fletcher).

Pre-hearing submissions

  1. [7]
    Prior to the evidentiary phase of the proceedings both parties filed written outlines of argument identifying their areas of focus in the hearing proper.

Applicant

  1. [8]
    There were declarations sought with consequential orders to follow as a result of the Notice to Show Cause issued on 9 July 2019 claimed to be inadequate due to a lack of particularisation being provided.  In the alternative, the process of issuing the Notice to Show Cause was flawed for reasons that related to:
  • lack of experience to determine the factual imputations of the Notice ;
  • the Notice had on its face been predetermined; and
  • CHQHHS had failed to comply with the appropriate disciplinary guideline in the conduct of the process.

Further, the suspension was contrary to the PS Act due to the decision maker having failed to comply with the appropriate disciplinary guideline in the conduct of the process.

Background

  1. [9]
    The disciplinary process had seemingly commenced by the suspension on 12 March 2019 with a second Show Cause Notice issued on 9 July 2019.  An application for an injunction was filed by Paxton on 5 August 2019.

Legal Framework

  1. [10]
    The relevant legislative and other provisions were identified as follows:
  • s 189(1) PS Act;
  • s 187(1)(f)(ii) of the PS Act; and
  • clause 1.5, Queensland Public Service Code of Conduct.

Deficient Notice to Show Cause

  1. [11]
    Areas where the Notice was said to be relevant were inadequate and unfair aspects were identified as:
  • lack of adequate particularisation;
  • disciplinary law;
  • procedural fairness; and
  • application.

Procedural deficiencies in the process

  1. [12]
    Procedural deficiencies were identified as:
  • decision maker does not possess the expertise or knowledge to determine operational matters;
  • the content of the Notice revealed that a pre-judgement had been made by the decision maker in regard to the allegations; and
  • failure to comply with the disciplinary process.

Suspension unlawful

  1. [13]
    The suspension of Paxton was unlawful for a number of reasons that included:
  • decision maker did not have access to a written complaint, benefit of an investigation report or a factual report from the complainant;
  • had not interviewed the complainant;
  • only had a verbal report on non-specific allegations;
  • allegations were not specific enough to determine a contravention of any policy;
  • allegations were not reasonably capable of meeting the Briginshaw v Briginshaw[1] (Briginshaw) standard; and
  • decision was not made on the basis of information which had been lawfully or reasonably obtained.

Respondent

  1. [14]
    The application was seeking to quash the disciplinary process on the grounds that the process followed by the employer had been inadequate and flawed contrary to the requirements of the PS Act.  The critical issues before the Commission were:
  • decision issued to Paxton on 11 March 2019 was unlawful;
  • Show Cause Notice (dated 9 July 2019) contained inadequate particulars; and
  • Show Cause Notice was flawed.

Background

  1. [15]
    The circumstances which led to the application related to a complaint made by Brianna Gray (Gray) regarding Paxton's conduct towards her which was said to have made the workplace feel unsafe for her.  Allegations against him included:
  • suggestions he had power or influence over Gray's future career in the Health Service;
  • engaged with Gray in an overly personal manner by use of gestures and pet names;
  • frequently positioned himself in close proximity to Gray, initiating unwelcome physical contact;
  • questioned Gray on multiple occasions about travel arrangements to and from work; and
  • routinely initiated informal and personal conversations with Gray in a manner that was unnecessarily exclusive.
  1. [16]
    Paxton was suspended on full pay and required to undertake a show cause process which to date had not been responded to.

Was the suspension lawful

  1. [17]
    The case for Paxton was that the suspension was contrary to s 189(1) of the PS Act as the decision maker could not have held a reasonable belief that Paxton was liable to discipline in the circumstances.  Authorities cited by the CHQHHS which were said to support the decision to suspend were:
  • Dorante-Day v Marsden (Dorante-Day)[2]; and
  • George v Rockett[3].
  1. [18]
    The decision maker (Tait) was experienced and had a well-established process for reviewing, assessing and making decisions with respect to employment matters and had been provided with relevant details regarding the complaint from People and Culture.  The relevant information was obtained by Tait who then formed the reasonable belief that the alleged conduct by Paxton towards Gray was contrary to the Code of Conduct and if proven he may have been liable to discipline.
  1. [19]
    The nature of the allegations made by Gray provided a clear reasonable basis for "inclining one's mind towards assenting rather than rejecting" the proposition that Paxton would be liable to discipline.  Suspension on full pay was both necessary and appropriate in the circumstances and therefore lawful.

Particularisation of the Show Cause Notice

  1. [20]
    The submission advanced on behalf of Paxton was without merit with the requirements for particulars having been met in the Show Cause Notice which set out the allegations as specific acts or omissions.  In the matter of Berenyi v Maynard & Anor[4] (Berenyi), Philippides JA considered the requirements for particulars in the context of a disciplinary action and the threshold test for providing sufficient particulars.  Details provided to Paxton included:
  • dates on which alleged conduct occurred;
  • location of such conduct and people involved; and
  • nature of conduct and where relevant specific wording.
  1. [21]
    The Show Cause Notice was absent of ambiguity and it was difficult to comprehend how much more detail would be required before Paxton could respond to the case alleged against him.  There was strong inference available that Paxton was feigning such confusion because he simply did not want to respond to the allegations.

No procedural deficiencies

  1. [22]
    The claim from Paxton that there were procedural deficiencies was based upon the following:
  • lack of knowledge and experience of the decision maker;
  • pre-judgement made based upon the content of the language used in the Show Cause Notice; and
  • compliance with the disciplinary process.
  1. [23]
    The present decision maker (Fletcher) had approximately 30 years of experience having held senior management and executive level positions and had a thorough knowledge and understanding of the CHQHHS operations and its values, culture and expectations of all employees.  Fletcher, like Tait, had a clear, reasonable and established process for reviewing and assessing disciplinary matters which included seeking advice and feedback from other groups and this was entirely appropriate and consistent in relation to employment matters in a large corporation.
  1. [24]
    The pre-judgement concerns related to the following language in the Show Cause Notice: "Show Cause . . . why you should not be disciplined in relation to the allegations".
  1. [25]
    A similar issue had been considered in Wirth v Mackay Hospital and Health Service & Anor (Wirth):

I think it was clear enough that each letter was in fact seeking to take a course consistent with Policy E10.  The show cause letter was identifying allegations and explaining their significance and giving Dr Wirth an opportunity to make submissions which would then be taken into account before making a finding on whether or not the allegation was made out.  And the letter of 4 December 2014, was seeking to do the same thing in relation to penalty.[5]

  1. [26]
    The Show Cause Notice from the perspective of the CHQHHS had provided Paxton with the opportunity to make submissions, which would then have been taken into account before any finding was made on whether he was liable for discipline in relation to the allegations.
  1. [27]
    On the matter of compliance with the disciplinary processes, the claim by Paxton that the failure of the CHQHHS to conduct a "preliminary assessment" as referred to in the Commission Chief Executive Guideline 01/17, Discipline (Guideline) was refuted by the CHQHHS on the basis that it did not form part of the "applied public service law" which governed the conditions of employment for a health service employee.  The steps in the Guideline were substantively the same as those in the Department of Health Human Resources Policy E10, which attracted the following commentary from Bond J in Wirth:

On receipt of an allegation against an employee, there must first be a preliminary assessment of the matter which will address whether there is a suspicion of official misconduct (which might require reference elsewhere); whether management action could more appropriately address the allegations; and whether further information needs to be obtained and how this should occur.  The conclusion of the preliminary assessment is a decision whether the delegate is reasonably satisfied the evidence before them supports the commencement of the disciplinary process.[6]

  1. [28]
    Fletcher was provided with the comprehensive written statement of Gray as well as the draft show cause letter which had cross-referenced each of the allegations to the relevant sections of her statement.  Upon review of these documents, Fletcher determined that Paxton may have been liable to disciplinary action pursuant to ss 187 and 188 of the PS Act.
  1. [29]
    The "preliminary assessment" of the allegations was reasonable and appropriate in the circumstances, with it becoming clear that Paxton's complaint was not so much about whether the "preliminary assessment" took place, as it was a complaint about the result of that process.

Conclusion

  1. [30]
    The only fair outcome at this stage of the show cause process is for Paxton to respond to the complaint to enable the decision maker to make a decision regarding the allegations.

Witness Evidence

Applicant

  1. [31]
    The evidence of Paxton was tendered in the proceedings as follows:
  • an Affidavit affirmed by Paxton on 5 August 2019;[7] and
  • A Statement of Evidence under the signature of Paxton, dated 30 September 2019.[8]
  1. [32]
    In the course of the proceedings the respondent did not require Paxton for the purposes of cross-examination.

Affidavit - 5 August 2019

  1. [33]
    Paxton, a Social Worker (HP5), Clinical Lead (Medical/Oncology) at the CHQHHS commenced employment on 29 November 2014 had taken issue with a disciplinary process which he described as "manifestly deficient" for reasons that included:
  • being requested to attend a meeting with Tim Wood (Wood), Director of Social Work where he was handed a suspension letter but not invited to have a support person present;
  • had received no previous advice regarding any conduct issues; and
  • no documentation, witness statements, or evidence to be relied upon had been provided.
  1. [34]
    On 11 April 2019 requests were made to the CHQHHS for documents, in correspondence addressed to Tait, with the correspondence not acknowledged by the employer.  Subsequently, the grievance process under the award was activated on behalf of Paxton on 8 May 2019 which raised issues that included:
  • failure to follow departmental documentation governing the disciplinary process which was a breach of natural justice;
  • predetermination of disciplinary action due to being tainted by "controversial material" from a disciplinary process initiated in 2004 against him in a different government department, finalised two years after he had left;
  • material relating to the 2004 matter had been unlawfully obtained by the decision maker (Tait);
  • requests of the CHQHHS to follow protocol and provide relevant documents, reports and witness statements had been ignored; and
  • the suspension of employment had prejudiced Paxton.
  1. [35]
    On 6 June 2019 the CHQHHS gave an undertaking to the Commission to complete the following:
  • replace the decision maker who will not be from my current work unit;
  • provide me (Paxton) with the letter of delegation;
  • procure a comprehensive statement from the complainant;
  • recast the show cause allegations;
  • provide me (Paxton) with an external contact person (external to the team e.g., HR);
  • provide timeframes for receiving a new show cause letter and complainant witness statement;
  • confirm that alternative duties were not considered because, due to the nature of the allegations and that it was determined it was inappropriate to consider temporary deployment elsewhere; and
  • provide an assurance that the new decision maker will not have access to the contentious file note nor be advised or notified of its existence or contents.
  1. [36]
    Advice was provided to Paxton on 1 July 2019 regarding a new decision maker and contact person which was followed up on 9 July 2019 with the issue of a new show cause letter and a statement that had been provided by Gray.
  1. [37]
    Paxton upon a review of the amended show cause letter and Gray's statement formed the view that the amended show cause letter was "manifestly deficient" for a number of reasons that included:
  • the seven allegations and multiple sub-allegations levelled against him were absent of reference to any part of the Public Service Act 2008 (Qld) (the PS Act) or workplace instrument;
  • the Chief Executive could not reasonably be satisfied that the allegations could be grounds for discipline;
  • the amended Show Cause Notice had unfairly and unreasonably requested him to state whether or not he accepted that each allegation had been substantiated or partially substantiated, inferring that each allegation had been pre-judged by the substituted decision maker;
  • a response to the allegations was required in the absence of any detail of which policy, legislation or obligation the individual allegations related to;
  • some of the allegations relied upon questionable evidence which led to concerns around pre-judgement of allegations against the correct standard of proof; and
  • the substituted decision maker and the CHQHHS had failed to follow relevant principles of natural justice, relevant directives and guidelines in relation to the PS Act requirements.
  1. [38]
    Paxton went on to evidence that the conduct of the CHQHHS had been intentionally intimidating, overbearing, significantly unfair, unjust and leading to a deficient disciplinary process.  It was also extremely difficult to respond to the Show Cause Notice due to the lack of sufficient detail and particularisation to enable procedural fairness.
  1. [39]
    Paxton sought from the Commission:
  1. (a)
    A declaration that:
  1. The allegations in the Show Cause Letter dated 3 April 2019 are manifestly deficient and inadequate;
  2. the Show Cause Process:
  1. is unfair and unjust because it failed to comply with prescribed departmental documents governing 'disciplinary processes';
  2. is unfair and unjust because it failed to attach any particulars or, witness statement or evidence so I could know and answer the case against me;
  3. is unfair and unjust because it further failed to disclose allegations that are sufficiently serious to warrant a show cause process;
  4. breached natural justice principles, failed to afford me procedural fairness, was unlawful and otherwise inequitable and unfair;

and that, by reason of (i) to (ii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. (b)
    A declaration that:
  1. The allegations in the Respondent's Amended Show Cause Letter dated 9 July 2019 is manifestly deficient and inadequate;
  2. The Amended Show Cause Process:
  1. is unfair and unjust because it failed to disclose a breach of the relevant workplace instrument;
  2. is unfair and unjust because it further failed to disclose sufficient seriousness to warrant a show cause process;
  3. breached natural justice principles, failed to afford me procedural fairness, was unlawful and otherwise inequitable and unfair;

and that, by reason of (i) to (ii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. (c)
    A declaration that:
  1. My suspension on 11 March 2019 was unfair and unjust because it failed to comply with prescribed departmental documents governing 'disciplinary processes' in relation to suspension;
  2. was unjust and unfair because it failed to fairly and reasonably particularise any allegations for which I was to respond;
  3. carried out in reliance on a manifestly deficient and inadequate show cause letter and show cause process.

and that, by reason of (i) to (iii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. (d)
    An injunction pursuant to s 473 of the IR Act:
  1. Prohibiting the respondent from taking further action against me in relation to any allegation contained in the statement of 9 July 2019 and including any action causing/contributing to/designed to lead to the termination of my employment whilst this application is being determined.

The following consequential relief or orders or directions pursuant to ss 451(1) and (2), 463(2), 473 and 539 of the IR Act:

  1. An injunction prohibiting the Respondent from taking any action against me in relation to the Show Cause Process or Amended Show Cause Process and including any action causing/contributing to/designed to lead to the termination of my employment whilst this application is being determined; and
  2. An order that the Show Cause Process or Amended Show Cause Process in relation to both letters as mentioned in paragraphs 15 and 5[9] be quashed and set aside;
  3. A direction that the Respondent, by any of its agencies, units, employees or agents, not to take any action of any kind in connection with my employment in respect of the matters contained in the show cause letters as mentioned in paragraphs 15 and 5;[10]
  4. An order that my suspension of 11 March 2019 be quashed and set aside;
  5. An order that I be reinstated to the position from which I was suspended on 12 March 2019;
  6. Or in the alternative to (e), the (sic) be employed in a similar or directly comparable Clinical Lead position to the position from which I was suspended on 12 March 2019 within Queensland Health without loss of remuneration, status or benefits.

Affidavit - 30 September 2019

Second Show Cause Notice

  1. [40]
    In terms of the first Show Cause Notice it had been conceded by the CHQHHS that it was not sufficient, however the amended Show Cause Notice was said to purportedly comply with the requirements of the public service policy, which was disputed by Paxton for reasons that included:
  • allegations were vague and not specifically linked to a particular breach of policy or legislation;
  • the factual ambiguity of the allegations made it difficult to determine which (if any) of the allegations had contravened the policies of the public service;
  • there was no reference to:

- sexual harassment or allegations thereof;

- any policy which defined scope or definition of harassment;

- particular aspects of Gray's allegations which the CHQHHS was of the view may constitute sexual harassment or harassment; and

- how the terms of sexual harassment or harassment were defined.

Nature of the Decision Maker

  1. [41]
    The concern with regard to the decision to change the original decision maker and replace them with the Chief Financial Officer (Fletcher) was because the allegations in the main relate to the manner in which Social Work unit operates and interacts, and it was difficult to see how a person without experience in that environment would be in a position to make qualitative and subjective assessments about the minutiae of the unit's operations.

Gray's statement

  1. [42]
    This statement was provided with the second notice and did not include the nature or scope of her complaint which triggered the first Show Cause Notice.  The CHQHHS had taken the view that the allegations were "he-said, she-said", however to understand the dynamics of the workplace and the operations of the social work team, it was important to understand context.

Student Placement Program

  1. [43]
    The aim of the program was to familiarise students with the operations of a clinical social worker and this generally occurs towards the completion of their studies, serving as a learning tool for where social work theory becomes practice.  The program usually spans a semester of the university year and provides the health service with an idea about the quality of graduates and potential employees for the future which explains why student placements are treated like members of the clinical team towards the end of placement.
  1. [44]
    Paxton gave evidence around the placement process, particularly regarding the supervisory structure which allowed for each student to be assigned two supervisors as a point of contact but did not restrict interaction of the student to only those supervisors assigned to them.  As a member of the clinical team, Paxton was involved with students during their service as he believed that ensuring the student's success in their placement and educating them to be appropriate graduates was part of his role.

Structure of Social Work Unit

  1. [45]
    The Director (Wood) was responsible for the oversight of all clinical social workers within the Social Work Department including supervision of the HP5 for the Rehabilitation Team.  Below the Director were:
  • Consultant Social Worker (HP6);
  • Clinical Leads (HP5);
  • Senior Social Workers (HP4); and
  • Social Workers (HP3).
  1. [46]
    Accordingly, as a Clinical Lead the responsibilities for Paxton included the welfare and professional practices of those staff who were working on each shift, as well as providing professional guidance, oversight of working complex cases and ensuring staff worked within their skill set.

Workplace culture and social interactions

  1. [47]
    Due to the nature of social work which creates a unique working dynamic, there are often discussions around ideologies and philosophical positions as well as the sharing of personal stories with one another.  Whilst the sharing of personal stories might be considered unprofessional in another workplace, it is common place in social work environments.  In the case of students, this is a focus on the use of self and the linkage to dealing with patients and the theory to practice.  Paxton denied the assertions by Gray that he was the only member of the permanent staff to have lunch in the "student room" or that he only did that when she was present.

Gray's allegations

  1. [48]
    Paxton responded to allegations that had been levelled against him by Gray in what he described as a "general manner" rather than address her statement line by line.  The responses included:
  • it was not abnormal that in the early part of Gray's placement that he met with her as he had met all students within their first two weeks of placement as part of their orientation;
  • Gray's allocated supervisors were primarily placed in the Pediatric Intensive Care Unit which was situated two floors below where she was placed and it was not surprising she saw more of him than her allocated supervisors as he commenced work on the same level where she worked;
  • he denied references regarding his attitude towards the student assigned to him which implied he did not enjoy being the supervisor;
  • on the use of nicknames, it was said to be commonplace throughout the team and not a reflection of being overly familiar.  It was more common than not for members to refer to each by a shortened name or nickname.  Paxton could not understand that "B1" or "Miss Bree" could be considered as inappropriate nicknames;
  • he recalled Gray speaking openly about her personal ideologies including discontinuing her association with her Evangelical Church and how her religious views influence a professional practice.  Paxton only participated in such conversations when the topic was opened by the colleague, but in any event, he considered them to be an essential part of clinical practice;
  • Paxton was surprised that Gray mentioned an offer to drive her part way home from work as the offer had only been made on two or three occasions and never forcibly refused.  The offer had been made as a result of his recognition that students were under a significant financial burden as the placements were unpaid.  The offer would not have required him to deviate from his ordinary journey;
  • the material regarding the allegation that he had paged Gray often or for no purpose was difficult to refute in the absence of information about the pages in question.  He had paged her in accordance with protocol in his role as Clinical Lead in monitoring performance of duties.  The pages were never personal;
  • Paxton responded to his attendance at the emergency department to support Gray as occurring because it was a particularly complex referral and not commonly dealt with by clinicians with such limited experience.  He subsequently directed her to hand over the case to the after hours Social Worker.  He checked in on Gray the next morning to enquire about both the professional aspects of the case and her personal well-being.  Gray became very defensive and he suggested she discuss the matter with her supervisor.  The situation regarding the referral was so significant that it was escalated to the Director; and
  • on the references to a number of interactions relating to recruitment, his only involvement would have been in relation to HP5s holding positions on the selection panels, with recruitment decisions being made by the Director.  He had no recollection of any conversations with Gray about recruitment because such conversations are commonplace and occur annually for each new class of student placements.  He had made no promise or threat regarding her future employment with CHQHHS.

Relationship with Gray

  1. [49]
    Paxton had maintained a collegiate relationship with Gray at all times and had not treated her in a manner that was different to any other person.

Respondent

Tait

  1. [50]
    Tait is the Executive Director of Clinical Services at CHQHHS which includes membership of the Executive Leadership Team reporting directly to the health service Chief Executive.  The role requires him to have operational responsibility for the overall performance and operational functioning of the Queensland Children's Hospital.  The direct responsibility includes the following divisions:
  • medicine;
  • surgery;
  • clinical care; and
  • clerical support.
  1. [51]
    The Social Work Department falls within the Clerical Support Division and in a previous role he had direct oversight of that Department.
  1. [52]
    Pursuant to s 30(2) of the Hospital and Health Boards Act 2011 (HHB Act) he is an authorised sub-delegate with respect to the employment of staff.  Additionally, he holds a level 2 delegation of authority (through the sub-delegation) which authorises the making of decisions concerning the employment of health service employees, including the undertaking of performance management action against an employee.
  1. [53]
    Tait regularly, in the exercise of the delegated authority, made decisions with respect to commencing a show cause process or taking steps to suspend an employee's employment.  Prior to a referral to him for decision making, the matter is initially reviewed and assessed at a local level by the Service Director in consultation with a relevant person from People and Culture, and failing resolution, it then goes to a Divisional Director who will refer the matter to him for a determination of an appropriate course of action.
  1. [54]
    The usual practice adopted by Tait when undertaking a decision making process was to:
  • obtain relevant detail from People and Culture, business partner and the Divisional Director; and
  • review the draft correspondence proposed to be provided to the employee.
  1. [55]
    Clarification may be sought from persons involved in the process and a meeting could be requested to discuss the matter or further investigation is undertaken before a decision is made.

Matter involving Paxton

  1. [56]
    In or around March 2019 in meetings with Michael Lewczuk (Lewczuk) the then Acting Divisional Director, Clinical Support, Tait was notified of an issue that could involve the management of an employee (Paxton) in the Social Work Department.  According to Lewczuk, more than one staff member within the Social Work Department had raised concerns with some allegations being made about Paxton's conduct in the workplace with a staff member.
  1. [57]
    Tait attended a meeting on 11 March 2019 with Lewczuk, Wood and Elle Ackland (Ackland), then a Manager within People and Culture, where Ackland presented information gathered from Gray which identified a number of allegations regarding Paxton's conduct towards Gray.  A draft suspension letter was tabled at the meeting.
  1. [58]
    On the basis of the information presented to him he formed the view that it was appropriate to commence a show cause process in relation to Paxton particularly having taken into consideration the following:
  • Gray's position and relationship with Paxton;
  • the period of time over which the alleged conduct was said to have occurred;
  • the alleged conduct was contrary to the Code of Conduct for Public Service Employees;
  • the alleged conduct was inconsistent with health service expectations of their employees; and
  • if proven, Paxton may be liable to discipline in respect of the alleged conduct.
  1. [59]
    Upon reaching that conclusion, he was required to give consideration as to how the health service would manage Paxton's ongoing employment during the show cause process and in doing so concluded that there were no suitable alternate duties available for the following reasons:
  • nature of the allegations and information regarding Paxton's conduct created a real concern for the safety of health service employees, not limited to the Social Work Department;
  • due to the Social Work Department operating as a single unit whose staff cover a number of multi-discipline areas, there was no alternative unit where Paxton could be temporarily relocated during the process; and
  • as a front line social worker, Paxton would not be able to perform his role working offsite.
  1. [60]
    Accordingly, he determined that it was reasonable and appropriate to suspend Paxton's employment on full pay during the show cause process pursuant to s 189 of the PS Act.
  1. [61]
    On 12 March 2019 having reviewed the draft suspension letter provided to him, he caused the said letter to be given to Paxton in the course of a meeting which was attended by Wood and Isabella Smith (Smith), a Senior HR Consultant.
  1. [62]
    Under cross-examination, Tait confirmed the acting Director of Clinical Support (Lewczuk) advised of a complaint that had been made against Paxton and of Wood having been made aware of the situation.  Whilst he was concerned about understanding the complaint, he made no further enquiries about who was involved.  On 11 March 2019 he was presented with a draft suspension letter, prepared by Ackland, on the basis of information obtained at a meeting with Gray on or around 6 March 2019.  Tait made the decision to suspend Paxton on 11 March 2019, relying upon the notes of a meeting with Gray which were the only written form of her complaint against Paxton.
  1. [63]
    Tait considered the complaint was of a sufficient nature to warrant suspension, being allegations of sexual harassment and that the complaint was capable of being substantiated.  Tait had no recollection of any meeting that was held with staff following Paxton's suspension.  Tait was unable to provide any reasoning why the show cause letter was issued some three weeks beyond the suspension of Paxton.
  1. [64]
    Tait had formed a reasonable belief Paxton ought to be suspended based on the content of documentation which contained:
  • a file note of a meeting attended by Gray, Wood and Meagan O'Keefe (O'Keefe) on 6 March 2019.  The meeting had been requested by Gray as a result of concerns about Paxton's behavior;
  • a page (dated 28 February 2019) which documented a significant number of allegations relating to Paxton's conduct in respect of Gray; and
  • handwritten notes relating to Paxton's interactions with Gray.[11]
  1. [65]
    At no time during his involvement in the disciplinary process had he spoken to O'Keefe despite the fact she was an attendee at the 6 March 2019 meeting.

Fletcher

  1. [66]
    Fletcher, the Chief Finance Officer of the CHQHHS, has the primary responsibility for financial control, governance, operational performance and key performance indicators for the health service with direct responsibility for the following teams and portfolios:
  • financial services, which incorporates management accounting and financial accounting;
  • procurement and contracting services;
  • revenue services;
  • facilities management and capital infrastructure; and
  • the disruption and disaster management unit, in relation to the assurance component of business continuity for clinical and non-clinical services.
  1. [67]
    Additionally, he has the oversight of financial governance and assurance, risk management and compliance activities within the health service reporting directly to the health service Chief Executive and Health Service Board.
  1. [68]
    Fletcher acknowledged that whilst not directly involved in the day to day operations of the health service or responsibilities for clinical service areas outside of his portfolios, he sought to ensure that the health service's four core values permeate and are driven throughout all facets of the service.

Delegations

  1. [69]
    Under his current role he holds an authorised sub-delegation role at a level 2 delegation which authorises him to undertake performance management action with respect to an employee, including issuing a Show Cause Notice and suspending an employee's employment.
  1. [70]
    When exercising his delegated authority, it was his usual practice to engage with the People and Culture Team and the Senior Director of Human Resources to:
  • ensure that any decisions, accountabilities and expectations are within his delegation;
  • obtain advice in relation to the matter under consideration; and
  • seek feedback regarding a proposed decision to ensure that the decision was balanced.
  1. [71]
    In the past 12 months he had exercised his sub-delegation twice with respect to employment issues and on each of those occasions he had:
  • received support and advice from the People and Culture Team, including feedback on all aspects of the matter and his proposed decision; and
  • thoroughly considered the sensitivities and mechanics of the matter as part of his decision making process to ensure the appropriate outcome was reached.
  1. [72]
    Fletcher considered he was capable of exercising his delegated authority fairly and appropriately, even in circumstances where he may lack direct experience or knowledge of the specific details of how a particular team or employee works.

Paxton's Show Cause Notice

  1. [73]
    On or around late June 2019 he was approached by the Senior Director of Human Resources regarding a matter involving two employees (Paxton and Gray) in the Social Work Department.  He was requested to act as decision maker regarding whether to issue Paxton with a Show Cause Notice in response to allegations made by Gray regarding Paxton's conduct towards her.
  1. [74]
    Fletcher considered he was able to act as the decision maker in respect of the show cause as:
  • he did not know either Paxton or Gray;
  • had no prior involvement in the matter; and
  • had no direct responsibility for the Social Work Department and therefore could remain independent from the individuals involved.
  1. [75]
    On 9 July 2019 he was provided with a copy of a statement by Gray (dated 8 July 2019) and a draft Show Cause Notice by the Senior Director of Human Resources after which he formed the view:
  • the matters gave rise to serious allegations regarding Paxton's conduct; and
  • the alleged conduct was inconsistent with the core values of the health service and may have contravened the Code of Conduct.

In particular, he considered the alleged conduct was not consistent with the values of respect, care and integrity or the expected behaviour of a health service employee.  On that basis, Paxton may have been liable for disciplinary action pursuant to ss 187 and 188 of the PS Act and he determined that the Show Cause Notice be provided to Paxton via his legal representatives on 9 July 2019.

  1. [76]
    Fletcher was satisfied that the draft show cause letter upon which he relied provided:
  • an appropriate summary of the detail of the allegations raised by Gray in her statement;
  • sufficient information with respect to the process to be followed; and
  • a reasonable opportunity for Paxton to respond to or provide feedback in relation to the allegations.
  1. [77]
    Under cross-examination, Fletcher acknowledged that towards the end of June 2019, he was requested to be the decision maker in Paxton's disciplinary process and at a meeting on 9 July 2019 he was provided with Gray's complaint for the first time.  Fletcher had not prior to these proceedings sighted Exhibit 4 and accepted that his role in the disciplinary process involving Paxton would be to make factual findings even though he had:
  • no clinical experience as a social worker;
  • no direct knowledge of the expectations of a student social worker in the department;
  • no experience or appreciation of the expectations of a graduate social worker;
  • no experience with supervision arrangements of junior clinicians in the social work area; or
  • no knowledge of the operational requirements of a Hot Desk Lead.
  1. [78]
    Fletcher had not been required to make any decision regarding the suspension of Paxton due to him being suspended previously, nor had he been shown a copy of the suspension letter.  He had an awareness of the statement made by Gray and when he considered the Show Cause Notice in draft form at the meeting on 9 July 2019, he took into account each allegation, assuming they could all be substantiated, and if they were not refuted, then each allegation was capable of being a breach of the Code of Conduct.  At the time he had not thought it necessary to conduct any more factual investigations into the allegations.

Submissions

Applicant

Overview

  1. [79]
    Paxton by way of the application was seeking declarations that the disciplinary process was unfair and void ab initio.  He sought consequential orders.
  1. [80]
    It was submitted that:
  • the decision maker could not have been 'reasonably satisfied' that Paxton would be liable for disciplinary action at the time of the suspension;
  • the allegations in the Show Cause Notice lacked precision and were consequentially unfair;
  • the decision maker lacked the relevant expertise to determine the factual circumstances relating to the allegations; and
  • the respondent had failed to comply with the relevant disciplinary process to conduct a fair preliminary assessment.

Suspension not lawful

  1. [81]
    Questions were raised in respect of the decision to suspend Paxton and the role of Tait as the decision maker on the basis he could not have reasonably believed that Paxton would be liable to discipline.  The legal test to be applied was supported by authorities that included:
  • Zink v Townsville Hospital and Health Service;[12]
  • Dorante-Day v Marsden;[13] and
  • Minister for Immigration and Citizenship v SZMDS.[14]
  1. [82]
    The test required an examination of the belief held by the decision maker at the time the decision was made and if the belief that the worker was liable to disciplinary action was not reasonable, then the power to suspend is not enlivened.  The purpose of the provision to suspend an employee is to ensure the safety of the workplace whilst affording an employee procedural fairness.  However, the framing of the provision, requiring a threshold of reasonable belief, displaces the power to suspend from simply a procedural matter, and ensures that a person accused of conduct which is not sufficient enough to impact the safety of the workplace or their employment status, is not removed from the workplace.  Tait in evidence conceded that the mere suspension of a person may impact their reputation.
  1. [83]
    In this case the considerations of the decision maker included:
  • receipt of a verbal indication from a direct report (Lewczuk) that multiple staff had been commenting on Paxton's actions;
  • he did not take action in relation to the abovementioned report;
  • he attended a meeting with Wood, Ackland and Lewczuk on 11 March 2019 where he was provided with a file note;[15]
  • he had not spoken to O'Keefe, who was present at the taking of the complaint, before making the decision to suspend Paxton;
  • he only considered the file note[16] having no regard to any other report; and
  • no other information was provided to him at the 11 March 2019 meeting.
  1. [84]
    On the evidence available to the Commission it was submitted that the substance of the allegations was insufficient to give rise to the belief a public service employee would be liable to disciplinary action.  The action to suspend Paxton's employment when contrasted against the Human Resources Policy E10 left open considerations regarding management action including corrective counselling, which provided for an outcome that was not disciplinary action.  The statutory intent of s 189(1) of the PS Act was not to remove workers from the workplace who were likely to be permitted to continue in their role with supervision or guidance.
  1. [85]
    It was conceded by Tait in evidence that further enquiries were required to be undertaken and it was Paxton's position that the allegations of Gray, available to Tait at the time, would at their highest warrant no more than corrective counselling for communication skills.
  1. [86]
    The remoteness and lack of specifics of the allegations were insufficient to warrant a reasonable decision maker to form the belief that Paxton would be liable to disciplinary action.

Allegations lacked sufficient precision

  1. [87]
    The allegations against Paxton were said to be vague and not capable to interpretation in an unambiguous manner which made it difficult to understand how the allegations contravened the Code of Conduct.  The claim by the respondent that the level of detail in the allegations was a compelling feature was not the test for adequate particularisation and the fact that a vague allegation is explained in lengthy terms does not displace the prejudice of a duplicitous or vague allegation.
  1. [88]
    The particularisation of the allegation in this regard did not relate to the evidence of the complainant, rather it related to the imputations that the statement of Gray tendered to establish a contravention of the Code of Conduct.  Particulars connecting the factual allegations to the purported contravention of a disciplinary law was required and was deficient in the Show Cause Notice.
  1. [89]
    Paxton, due to the number of factual permutations of the allegations, was unable to respond in a meaningful manner.  The decision maker ought to have followed a line of reasoning that included:
  • sub-allegations should be assessed for factual accuracy and if accepted the decision maker moves to assess the main allegations;
  • the main allegations are to be assessed to determine whether the allegations had been substantiated, based on findings of the suballegations.  The assessment was around the nature of the conduct rather than a finding that the conduct occurred; and
  • considerations are then given to the factual findings and the conduct assessed to decide whether the Code of Conduct had been contravened.
  1. [90]
    In circumstances where the decision maker at their discretion considers the findings of one allegation to support or reinforce the findings of another allegation can lead to a chain of reasoning, that would place Paxton in a position where he could not reasonably know the factual basis for his response to alleged breaches of the Code of Conduct.
  1. [91]
    Further, in relation to insufficient particulars, the Show Cause Notice appears to be stating that:
  • the CHQHHS believes it is enough that the conduct of Paxton may constitute harassment towards Gray without the requirement that the conduct was harassment or without a description of the nature of the alleged harassment; and
  • the allegations of contravention of the Code of Conduct were in subjective terms without description or definition.
  1. [92]
    The terms of the letter of suspension, the submission and the CHQHHS submissions appear to view the allegations with greater seriousness than the alleged contraventions in the Show Cause Notice.  There is an inherent ambiguity in the application of the Code of Conduct which is seemingly being applied in a manner to pursue a disciplinary process for sexual harassment whilst no such intention was apparent in the face of the Show Cause Notice.

Decision maker lacks expertise

  1. [93]
    It was submitted, despite the CHQHHS position that the decision maker's extensive experience in the Public Service was a sufficient qualification, Paxton does not accept he holds the relevant expertise to determine this matter particularly in the absence of a factual investigation where he will be required to make factual findings.  The decision maker in this case must assess the allegations for their appropriateness and professionalism within the context of the roles of Paxton and Gray at the time.
  1. [94]
    The decision maker (Fletcher) gave evidence that:
  • he did not have experience in the field of social work;
  • he did not have experience or appreciation for the role of a student with the Social Work Department;
  • he did not have experience of the requisite level of supervision required for a student placement in the Social Work Department; and
  • he did not know the scope of the role of a Hot Desk Lead.
  1. [95]
    A factual understanding was in this case necessary because of the allegations that Paxton was:
  • inappropriate in the nature, extent and substance of his interactions with Gray;
  • had provided a higher than normal degree of oversight of Gray's work;
  • inappropriate in his language and interactions in the student pod; and
  • was unprofessional in his interactions with Gray.

The decision maker does not have the experience of the working environment to assess such conduct.

  1. [96]
    The requirement for the appropriate expertise was compounded by the nature of the process because the decision maker had indicated he would not be interviewing Gray or witnesses, just relying on two written statements.  The decision maker was not aided by a factual investigation report which would have provided interviews of relevant witnesses and assessment of the objective factual circumstances.

Pre-judgement of the allegations

  1. [97]
    It was submitted that the process engaged in by the CHQHHS amounted to a prejudgement of the allegations against Paxton with two indicators of that being:

Lack of factual investigations:  The CHQHHS had not engaged in a factual investigation in relation to the allegations in that they had not interviewed the complainant, associated witnesses or Paxton.  In allegations of subjective misconduct, the failure to obtain a factual report was concerning with neither Gray or Paxton having the benefit of an investigator exploring their recollections.  The process had become inherently unfair.

Framing of the allegations:  The framing of the allegations had predetermined that those allegations, if accepted, constituted the subject finding in the primary allegations.  This may become an issue for the decision maker because of his insufficient experience to assess the conduct or absence of a factual investigation.

Compliance with Policy

  1. [98]
    The preliminary assessment undertaken by the CHQHHS was flawed as the decision maker did not have the relevant information to conduct the assessment.  According to Fletcher's evidence there had only been a consideration of the allegations in their written form with him, seemingly, endorsing the Show Cause Notice in its draft form.  The policy required the CHQHHS to assess the allegation against an employee as a whole and not with selected information.

Respondent's Further Submissions

Lawfulness of the suspension

  1. [99]
    The suspension decision was not as claimed by Paxton unlawful because Tait did not possess the relevant reasonable belief required by s 189(1) of the PS Act.  To accept this proposition would be a mischaracterisation of Tait's evidence and the legal test for "reasonable belief".

Reasonable belief

  1. [100]
    The argument advanced by Paxton was said to overstate the standard required to establish the reasonable belief.  The relevant test remains as set out in George v Rockett[17] and requires only an "inclination of the mind towards assenting to, rather than rejecting, a proposition".  The test is a low threshold and challenging a decision on the basis of the reasonableness of a belief was difficult.
  1. [101]
    In Walters v Drummond & Ors it was stated by Brown J:

Where a provision requires the decision-maker to be satisfied of a matter or hold a belief, as opposed to the existence of an objective fact, it may be difficult to show that the decision-maker has erred in reaching his or her decision or that the decision could not reasonably have been reached.  The decision is not, however, one that is unexaminable.[18]

  1. [102]
    Her Honour went on to further state:

The Court is able to review the objective existence of the criteria for 'reasonable belief' in determining whether the decision was within jurisdiction.  It is not for the Court to substitute its opinion or belief for that of the decision-maker.  However, for the exercise of the power to be lawful, the decision-maker must have held that belief and the facts and circumstances known to the person must have constituted objectively reasonable grounds for the belief.[19]

. . .

In reaching this conclusion, I am conscious of the fact that a stringent test is imposed in respect of the ground of legal unreasonableness and that, while a 'reasonable belief' must be supported by objective circumstances, what is required is less than proof and the belief can be founded on slender evidence.  I am also conscious of the fact that the power under s 189 is exercised at the outset of the disciplinary process, which may be before a full consideration of the issues and evidence involved.  The letter set out the matters upon which Mr Drummond relied in forming a reasonable belief and, at least superficially, provided an evident and intelligible justification for that belief. Further, the terms of the letter support the fact that he considered those matters within the statutory framework of s 189.  The BDO Report, supported by the CCC's comments, could reasonably support the belief that Professor Walters was liable to discipline under a disciplinary law at the preliminary stage at which the decision was made.  I do not find that the belief was not reasonable or that the ground of legal unreasonableness is made out.[20]

  1. [103]
    In the matter of Zink v Townsville Hospital and Health Service, the Commission as constituted stated:

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.[21]

  1. [104]
    In respect of the decision made by Tait to suspend Paxton it was necessary to consider whether or not the information before him was sufficient to incline his mind towards assenting to, rather than rejecting the position that Paxton was liable for discipline.

Tait's evidence

  1. [105]
    The assertion by Paxton, that Tait in evidence indicated before he took any more steps he wanted to discuss the matter with all persons present at the taking of the complaint, was rejected.  The evidence being that, in accordance with his usual practice, he had tested the relevant evidence by confirming that the persons who were recorded in the file note as being present, were in fact present at the meeting.  Tait had never said he had intentions to talk with all persons present before taking any more steps.
  1. [106]
    Tait had not restricted his considerations to just the file note when assessing the reasonableness of his belief, but also the discussions which occurred at the meeting on or around 11 March 2019.  There was a concession by Tait that further enquiries would have been required before any ultimate decision on discipline was made which was precisely the point of the show cause process.  The suspension and the show cause processes were two separate decisions which was plainly understood by Tait who presented as a trustworthy, logical and reasonable witness.
  1. [107]
    The argument regarding the unlawfulness of the suspension must be rejected.

Particulars complaint

  1. [108]
    A plain reading of the show cause letter and the attachments reveals that it contained ample particulars to enable Paxton to respond and the "ambiguity" alleged by him was invented by him in an attempt to make his case more complicated than it was.  All that is ultimately required of the particulars are those that are sufficient to put Paxton on notice regarding the case he had to meet.
  1. [109]
    The reliance placed on Etherton v Public Service Board of New South Wales (Etherton)[22] by Paxton was questioned by the CHQHHS on the basis that this case was in a different category and was the bare opposite of Etherton, because in this instance there was a detailed statement and cross references in the Show Cause Letter, which provided particulars of specific acts or omissions relied upon in respect of the alleged breaches.  Paxton either engaged in the conduct as alleged or did not which is for him to respond to.
  1. [110]
    In the matter of Berenyi v Maynard & Anor there was discussion by Philippides JA about Etherton as follows

The applicant placed particular reliance on Etherton as apposite to the present case. There the breach of discipline charged under the Public Service Act 1979 (NSW) was that the applicant was 'negligent, careless, inefficient or incompetent in the discharge of his duties'.  The only particulars of the breach provided were that the applicant 'failed to carry out [his] duties as a senior district officer … in a satisfactory manner'. The Public Service Board conceded that no precise statement of the specific acts or omissions relied upon in respect of the alleged breach was provided [23]

Paxton could not have been in any reasonable doubt about the case he was required to meet and the reliance on the show cause letter which contained the relevant factual allegations both individually and collectively created no ambiguity or unfairness for him.

  1. [111]
    There was clarity in the Show Cause Notice about which provisions of the Code of Conduct were alleged to have been breached and there was no evidence that the decision maker intended to unfairly or arbitrarily apply some different test or treat the allegations as more serious than they were on their face.  The argument regarding the unfairness of the Show Cause Notice must be rejected.

Fletcher's expertise

  1. [112]
    The contentions regarding the case being unique to the operation of the Social Work Department was a misrepresentation of the allegations against Paxton and they must be rejected on that basis.  There was no concession by the CHQHHS that Fletcher had conceded he did not have the experience of the working environment to assess the appropriateness of the objective conduct and it was misleading for Paxton to suggest that was the case.  Fletcher gave evidence that he did not have the experience in social work of the operations of the Social Work Department but it was an entirely different matter to say he lacked the experience to determine the appropriateness of the objective conduct.  It was a further misrepresentation by Paxton, to state that Fletcher would not interview the complainant or witnesses and intended to make findings on the basis of two written statements.  Fletcher in his written statement also had stated the process by which he would seek further information if he considered it was required.
  1. [113]
    The submissions made by Paxton on this matter were no more than mere speculation and the arguments about Fletcher's experience should be rejected.

Pre-judgement

  1. [114]
    Whilst advancing an argument about pre-judgement in respect of Fletcher, there had been a failure to put relevant questions to him and to raise such matters after the evidence had closed was unfair.  The arguments reveal a pedantic approach to analysing the matters that may have been considered or assumed by the decision maker which was not the correct approach.
  1. [115]
    A plain reading of the Show Cause Notice revealed no pre-judgement and there was nothing upon which the Commission could base a finding that Fletcher had pre-judged anything or that he was not "open to persuasion".  Accordingly, the argument advanced by Paxton regarding pre-judgement must be rejected.

Conclusion

  1. [116]
    The application must be set aside.

Conclusion

Background

  1. [117]
    The application lodged by Paxton on 5 August 2019 sought that an injunction be granted against CHQHHS in the following terms:
  1. The Respondent is restrained from taking further action in relation to any factual matter contained in the statement of Ms Gray dated 8 July 2019;
  1. The show cause processes commenced on 3 April 2019 and 9 July 2019 are permanently stayed and cannot be re-recommenced without the leave of the Commission;
  1. No part of the show cause processes commenced on 3 April 2019 and 9 July 2019 can be used in any future action without the leave of the Commission;
  1. In the alternative, the show cause processes commenced on 3 April 2019 and 9 July 2019 is (sic) set aside and may only be recommenced after the completion of formal investigation conducted by a person who is not an employee of the Respondent.
  1. [118]
    In an affidavit also lodged on 5 August 2019 Paxton applied to the Commission for the following three declarations to be sanctioned by the Commission:
  1. (a)
    A declaration that:

i. The allegations in the Show Cause Letter dated 3 April 2019 are manifestly deficient and inadequate;

ii. the Show Cause Process:

a. is unfair and unjust because it failed to comply with prescribed departmental documents governing 'disciplinary processes';

b. is unfair and unjust because it failed to attach any particulars or, witness statement or evidence so I could know and answer the case against me;

c. is unfair and unjust because it further failed to disclose allegations that are sufficiently serious to warrant a show cause process;

d. breached natural justice principles, failed to afford me procedural fairness, was unlawful and otherwise inequitable and unfair;

and that, by reason of (i) to (ii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. (b)
    A declaration that:

i. The allegations in the Respondent's Amended Show Cause Letter dated 9 July 2019 is manifestly deficient and inadequate;

ii. The Amended Show Cause Process:

a. is unfair and unjust because it failed to disclose a breach of the relevant workplace instrument;

b. is unfair and unjust because it further failed to disclose sufficient seriousness to warrant a show cause process;

c. breached natural justice principles, failed to afford me procedural fairness, was unlawful and otherwise inequitable and unfair;

and that, by reason of (i) to (ii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. (c)
    A declaration that:

i. My suspension on 11 March 2019 was unfair and unjust because it failed to comply with prescribed departmental documents governing 'disciplinary processes' in relation to suspension;

ii. was unjust and unfair because it failed to fairly and reasonably particularise any allegations for which I was to respond;

iii. carried out in reliance on a manifestly deficient and inadequate show cause letter and show cause process.

and that, by reason of (i) to (iii), the show cause process should be quashed and set aside and the letter and its content not used for any purpose in the future.

  1. [119]
    Further, in the same affidavit (5 August 2019) additional injunctions and orders were sought in the following form:
  1. (d)
    An injunction pursuant to s 473 of the IR Act:

i. Prohibiting the respondent from taking further action against me in relation to any allegation contained in the statement of 9 July 2019 and including any action causing/contributing to/designed to lead to the termination of my employment whilst this application is being determined.

The following consequential relief or orders or directions pursuant to ss 451(1) and (2), 463(2), 473 and 539 of the IR Act:

a) An injunction prohibiting the Respondent from taking any action against me in relation to the Show Cause Process or Amended Show Cause Process and including any action causing/contributing to/designed to lead to the termination of my employment whilst this application is being determined; and

b) An order that the Show Cause Process or Amended Show Cause Process in relation to both letters as mentioned in paragraphs 15 and 5  be quashed and set aside;

c) A direction that the Respondent, by any of its agencies, units, employees or agents, not to take any action of any kind in connection with my employment in respect of the matters contained in the show cause letters as mentioned in paragraphs 15 and 5 ;

d) An order that my suspension of 11 March 2019 be quashed and set aside;

e) An order that I be reinstated to the position from which I was suspended on 11 March 2019;

f) Or in the alternative to (e), the (sic) be employed in a similar or directly comparable Clinical Lead position to the position from which I was suspended on 12 March 2019 within Queensland Health without loss of remuneration, status or benefits.

  1. [120]
    The view of the Commission is that the various forms of relief identified by Paxton were assembled in a more complex form than would ordinarily be required in these circumstances and had the effect of being somewhat burdensome in the determination of the matters before the Commission.  Therefore, the intention of the Commission is to tackle the issues in a manner whilst diverging from the format proposed by Paxton, nevertheless responds suitably to the areas of friction that exist between the parties, culminating in findings and the likely issue of subsequent orders.

Suspension of employment

  1. [121]
    Paxton claimed that the suspension of his employment on 11 March 2019 had been unfair and unjust for reasons including:
  • failed to comply with prescribed departmental guidelines that regulated disciplinary processes; and
  • the suspension was contrary to s 189(1) of the PS Act as the decision maker could not have held a reasonable belief that Paxton was liable to discipline in the circumstances.
  1. [122]
    Section 189(1) of the PS Act provides:

Suspension of Public Service employee liable to discipline

  1. (1)
    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.
  1. [123]
    In terms of the suspension of employment, Paxton was handed correspondence by Tait on 12 March 2019 (dated 11 March 2019) which advised:

I refer to your employment as a Social Worker within the Division of Clinical Support, Children's Health Queensland Hospital and Health Service (CHQHHS), and information I have received which raises concerns about your conduct and workplace behavior.  The information I have received alleges that you have sexually harassed a colleague.  Please note that I will write to you outlining in more detail the nature of the allegations.

 . . .

 I reasonably believe due to the nature of the allegations you may be liable to discipline and it would not be appropriate for you to remain in the workplace due to the concerns I have about your alleged conduct.  Accordingly, pursuant to section 189(1) of the Act, I have decided to suspend you from duty on full pay, effective immediately.

 Your suspension will remain in place until further enquiries can be made into you alleged conduct or unless otherwise determined.  Please be advised that I will review your suspension regularly.

 Before making a decision to suspend you I considered all alternative duties that may have been available for  you to perform.  I determined that it would not be appropriate for you to perform alternative duties on the basis of serious concerns regarding the nature of the allegations.

  1. [124]
    In evidence, Tait informed the Commission of the considerations relied upon in deciding to suspend Paxton's employment and in doing so made no mention of the sexual harassment of a colleague as referred to in the suspension letter but went to "conduct in the workplace, including relationships with a staff member".  Tait had participated in a meeting on 11 March 2019 with reasonably senior staff, one of whom was the (then) Manager HR Operations (Ackland) who presented material gathered including information from Gray which identified a number of allegations regarding Paxton's conduct towards Gray.  This resulted in Tait forming the view that the alleged conduct was contrary to the Code of Conduct and inconsistent with the Health Services expectations to the point that if proven, Paxton may have been liable to discipline.
  1. [125]
    Tait under cross-examination confirmed the material relied upon to make the decision to suspend Paxton was limited to the notes taken at a meeting attended by Gray prior to 11 March 2019 and most certainly didn't include the statement of complaint subsequently made by Gray (dated 8 July 2019) where allegations in respect of Paxton's conduct were formally provided to the employer.
  1. [126]
    An examination of the material available to Tait at the time he formed the reasonable belief Paxton may have been liable for discipline under a disciplinary law revealed at best a file note, prepared by the Director of Social Work (Wood) that emanated from a meeting held on 6 March 2019 attended by Gray, a Senior Social Work Supervisor (O'Keefe) and Wood.
  1. [127]
    The file note, amongst other things, recorded that:
  • a request had been made by Gray to "discuss observed behaviours concerning" Paxton;
  • the issue had "gone on for a long time" but was getting worse;
  • a one page list of concerns prepared by Gray was tabled at the meeting;
  • conduct of concern included:
  • Paxton would regularly page her (3 times a week) for no reason which was described as "odd";
  • she felt uncomfortable with offers from Paxton to drive her home from work;
  • he had "used her personal number";
  • physical approaches included "high fives";
  • reference to another student allegedly "targeted" by Paxton;
  • Paxton sought information about her personal circumstances; and
  • Paxton spoke negatively about his wife.
  1. [128]
    In the action/outcome section of the file note it was recorded that Wood "anticipated speaking to Brian (Paxton) regarding this matter but will follow process and seek advice".  Also, given the concerns, Gray would be provided with other duties upon Paxton's return to work on 11 March 2019.
  1. [129]
    A one page document (dated 28 February 2019) purported to have been prepared by Gray was tendered in the proceeding.  The document was unsigned, not addressed to anyone in particular and referenced conduct by Paxton that included:
  • offering her a lift home from work;
  • had taken a "keen interest" in her and was "very impressed" with her as a student;
  • sent a message requesting her to meet him for lunch on level 7;
  • Paxton would often sit next to her and direct personal questions at her about diet, exercise, relationships, family and religion;
  • sit on her desk and smile at her;
  • poke his tongue out at her; and
  • use "pet names" such as B1, Brie cheese and grass hopper.
  1. [130]
    Neither the file note nor the one page document recorded any information that might reasonably indicate behaviour that would fit into the "sexual harassment" mould referred to by Tait in the letter of suspension.
  1. [131]
    In determining whether Tait had sufficient grounds to support his conclusion that he reasonably believed Paxton, on the information available to him at the time, was liable for discipline under a disciplinary law, it must be noted that this was done in the absence of a complaint having formally been made by Gray.
  1. [132]
    In the matter of Dorante-Day consideration was given to a suspension of employment under s 189 of the PS Act, with Mullins J firstly making reference to a deposition from the respondent that stated:

. . .

'Some of the allegations were that Mr Dorante-Day had engaged in threatening behaviours.  One aspect of the complaint was that the complainant felt threatened and bullied.  The allegations, on the face of the complaint, were serious and I formed the view that they needed to be investigated.'

Pending a full investigation of the complaint, the respondent decided to suspend the applicant from duty on normal remuneration effective from 1 June 2018 and the applicant was given notice of that decision by letter dated 1 June 2018 that included the following:

'I have received a complaint dated 17 May 2018 concerning allegations of inappropriate workplace behaviour . . .'.[24]

Her Honour went on to find:

 The respondent acted relatively swiftly in making the suspension decision after receiving the complaint on 31 May 2018.  That timing does not show that due process was not followed.[25]

  1. [133]
    The argument around reasonable belief is generally more robust in circumstances where a decision maker acts upon a complaint, rather than was the case in this matter where Tait had acted on information that in ordinary terms was barely sufficient or adequate to enable a decision such as to one taken by Tait to stand even the barest of scrutiny.
  1. [134]
    I am satisfied on the evidence and material before the proceedings that Tait, in reaching the conclusion that he held a reasonable belief Paxton may have been liable for discipline under a disciplinary law, had done so in the absence of sound grounds to support the decision.
  1. [135]
    In or around late June 2019, Fletcher was requested to act as the decision maker in respect of Paxton and on 9 July 2019 he was furnished with a copy of the full statement made by Gray which led him to conclude that Paxton may have been liable to discipline under ss 187and 188 of the PS Act.  With regard to the issue of suspension, Fletcher in the course of cross-examination, accepted the proposition that he had never made a decision about suspension and "didn't need to make that decision because he had already been suspended".  In fact, Fletcher was never shown the suspension letter.
  1. [136]
    As the newly appointed decision maker, it was in the view of the Commission necessary for Fletcher to have at least considered the issue of suspension for reasons that included:
  • having in his possession the 11 page statement prepared by Gray which contained at paragraph 135 the following:
  • "I thought long and hard about making a complaint but I felt I had to.  Not just for myself but so no one else had to experience it"; and
  • the agreement reached previously in the Commission around the level of information provided at the time of issuing the first show cause letter and the commitment by CHQHHS to provide further information.
  1. [137]
    It could have been the case that upon consideration of the complaint by Gray in its full form may have led Fletcher to conclude there was a reasonable belief Paxton may have been liable for discipline pursuant to the PS Act and suspension, rather than simply relying on the earlier suspension which had all the characteristics of being deficient, based upon the information available to Tait at the relevant time.
  1. [138]
    For the reasons expressed so far the decision to suspend Paxton (dated 11 March 2019) must be set aside however it will be necessary to address the issue of possible enduring suspension later in this decision.

Show Cause Notices 3 April 2019 and 9 July 2019

  1. [139]
    Paxton was issued with a Show Cause Notice under the signature of Tait on 3 April 2019.  In the course of a conciliation conference on 6 June 2019 that occurred following the activation of the grievance process by Paxton, a number of undertakings were given by the CHQHHS regarding the disciplinary process involving him, one of which was to "recast the show cause allegations".
  1. [140]
    In correspondence sent to Paxton on 24 June 2019 the legal firm acting for the CHQHHS advised the following about the Show Cause Notice:

 No later than COB on 8 July 2019, provide a revised show cause letter, including a copy of the complainant's statement.

  1. [141]
    On 9 July 2019 a second Show Cause Notice was issued to Paxton under the signature of Fletcher, which amongst other things stated:

 Your grievance in the matter D/2019/67 relates to concerns you hold about the Original Show Cause and the involvement of particular individuals in the process relating to the Original Show Cause.

 Consistent with the agreement that no action will be taken by the Health Service in relation to the Original Show Cause, and you are not required to provide any further response in relation to it.  Instead, you will need to reply to this revised show cause.

  1. [142]
    In terms of the relief sought by Paxton that the first Show Cause Notice be "quashed and set aside and the letter and its content not be used for any purpose in the future", it is not necessary for the Commission to make such a finding on the basis of the agreement reached between the parties that a revised show cause be issued, thereby effectively voiding the notice.
  1. [143]
    Paxton sought a similar outcome in respect of the second Show Cause Notice, despite that notice on the face containing significantly more detail than the first notice issued on 3 April 2019.
  1. [144]
    The Human Resources Policy E10 at Attachment One - Discipline process identifies the obligations of an employer in putting allegations to an employee as part of a disciplinary process:

3. Disciplinary process

. . .

When putting allegations to the employee, the employee must also be:

  • advised what sections of the Public Service Act (section 187) the employee’s alleged actions may have breached (for example section 187(1)(a) that the employee may have performed their duties carelessly, incompetently or inefficiently)
  • provided with all the information the delegate intends to rely upon when determining whether an allegation can be substantiated. The employee should be advised what evidence is being relied upon to support the allegation/s.

. . .

  1. [145]
    On examination of the second Show Cause Notice it is evident that Paxton was advised:
  • Fletcher had decided he may be liable to discipline pursuant to ss 187 and 188 of the PS Act in relation to his conduct towards Gray which gave rise to serious allegations concerning his professional behaviour and obligations;  and
  • of the allegations that had been levelled against him in a form that identified:
  • the allegations;
  • summary of the allegations that for the most part identified the date and location of the alleged conduct;
  • particulars of such conduct;
  • cross-referenced the alleged conduct against the relevant sections of the statement that had been made by Gray; and
  • enclosed copies of the relevant sections of the PS Act and provided the Code of Conduct.
  1. [146]
    Paxton in the course of the proceedings persued a course where he questioned the particularisation of the allegations or more to the point, the lack thereof, and pointed out what in his view would have been a more preferable approach to have been taken in this situation.  This included:
  • sub-allegations should be assessed for factual accuracy and if accepted the decision maker moves to assess the main allegations;
  • the main allegations are to be assessed to determine whether the allegations had been substantiated based on findings of the sub-allegations.  The assessment was around the nature of the conduct rather than a finding that the conduct occurred; and
  • considerations are then given to the factual findings and the conduct assessed to decide whether the Code of Conduct had been contravened.
  1. [147]
    Interestingly, in spite of the consistent claim by Paxton the allegations were of a nature that prevented him from being able to respond in a meaningful manner, it was the case in his Statement of Evidence,[26] he responded to Gray's allegations in paragraphs 31 to 49 inclusive in an expressive form which tended to somewhat blunt this line of argument.
  1. [148]
    The Commission accepts that in matters where a show cause notice may be issued to an employee it is open for that person to reasonably challenge the content, particularly in circumstances where it is perceived they are at a disadvantage, in being able to respond in an appropriate manner.
  1. [149]
    I am not satisfied that Paxton had in this situation been placed in a position where the second Show Cause Notice was so lacking in detail that it would have been unfeasible for him to respond to the allegations as required by the notice.  Accordingly, the declaration being sought that would result in the second Show Cause Notice being "quashed and set aside" is not acceded to on the basis that the allegations lacked sufficient precision as maintained by Paxton.

Note:  In any event, for reasons that will become obvious in the latter stages of this decision the second Show Cause Notice will have no practical role in the disciplinary process going forward.

Decision maker lacked the expertise

  1. [150]
    In March 2019 ,Tait as an authorised sub-delegate pursuant to s 30(2) of the HHB Act, acted in the position of decision maker in regard to a disciplinary process involving Paxton.  It is not of dispute that he issued a letter of suspension (on full pay) from employment to Paxton on 12 March 2019 and authorised a Show Cause Notice be given to Paxton on 3 April 2019.
  1. [151]
    On 6 June 2019 at a conciliation conference before the Commission an undertaking was given by the CHQHHS that Tait would be replaced as the decision maker and another person appointed to the role who was not from Paxton's work unit.
  1. [152]
    In or around late June 2019, Fletcher who held the same level of delegation as Tait, was requested to act as the decision maker in the Paxton disciplinary process.  He gave unchallenged evidence that on two occasions in the previous 12 months he had exercised the sub-delegation relying on support from the People and Culture Team.
  1. [153]
    Paxton exhibited a disquiet with the appointment of Fletcher as the decision maker for a range of reasons that included:
  • not experienced in the field of social work;
  • had no appreciation or experience of the role of a student in the Social Work Department;
  • had no experience about the level of supervision required for student placement; and
  • had no knowledge of the scope of a Hot Desk Lead.
  1. [154]
    The CHQHHS suggested that Paxton had misrepresented the contentions of the case against him, being unique to the operation of the Social Work Department and further misrepresented the manner in which Fletcher would undertake the decision maker role, going forward with these arguments as no more than mere speculation.
  1. [155]
    On my view, it was clear that Fletcher had the relevant delegation to act as the decision maker in Paxton's disciplinary process and if the matter was to be continued without any intervention from the Commission, the shortcomings alleged by Paxton regarding Fletcher's lack of knowledge or expertise around what happens in the Social Work Department wouldn't have been sufficient to have him removed from the role.  Of more concern, in the view of the Commission, would have been his failure to revisit the initial suspension of Paxton.
  1. [156]
    To accept the position advanced by Paxton would restrict the ability for any person outside of the Social Work Department to occupy the role of decision-maker and when that is viewed in the context of the undertaking that was required of the CHQHHS in June 2019 not to appoint a person from Paxton's work unit, it seems a tad inconsistent.
  1. [157]
    It had not been established based on the requisite standard of proof that Fletcher lacked the expertise to act in the role of decision maker in Paxton's disciplinary process should it have continued in the original form.

Formal Investigation

  1. [158]
    There was no contest that a formal investigation had not been commissioned by the CHQHHS following receipt of the complaint from Gray or in the pre-complaint period when the suspension of Paxton's employment was effected.  The application lodged with the Industrial Registry on 5 August 2019 sought amongst other things the following injunction:

In the alternative, the show cause processes commenced on 3 April 2109 and 9 July 2019 is (sic) set aside and may only be recommenced after the completion of formal investigation conducted by a person who is not an employee of the Respondent.

  1. [159]
    The Public Service Commission Chief Executive Guideline 01/17: Discipline provides at clause 11.9 - Investigation a relevant guide in respect of a formal investigation:

11.9 Investigation

a) The nature of the allegations themselves will inform whether formal investigation is necessary. An early conversation with the employee about their alleged conduct may prevent any need for a formal or informal investigation or disciplinary process.

  1. (b)
    If the decision maker considers an investigation is warranted, they then need to determine if an internal or external provider is most appropriate. If the latter, ensure there are probity safeguards and compliance with procurement procedures (for example, establish terms of reference, realistic time frames and availability of required funding).
  1. (c)
    Decision makers may wish to consider the PSC’s Conduct and Performance Excellence (CaPE) Service resource Managing Workplace Investigations: a practical guide for the Queensland public sector where consideration is given to a workplace investigation into allegations of inappropriate conduct or poor performance. The Crime and Corruption Commission’s (CCC) investigation guide Corruption in focus: a guide to dealing with corrupt conduct in the Queensland public sector provides comprehensive advice on conducting investigations for allegations of official misconduct.

Confidentiality considerations

  1. (d)
    All participants in a disciplinary process must remain mindful of their ethical responsibilities, including any obligations of confidence that arise. All parties involved in an investigation and/or discipline process should be directed to not discuss the matter in the workplace. Where the employee who is subject to the discipline process might wish to speak with colleagues to assist them in their response to a show cause process, they should approach their contact officer to act as an intermediary on their behalf to oversee and coordinate communications.
  1. [160]
    When the issue of Paxton's conduct was first raised with Tait it had been done in a manner where he was informed that there were multiple complainants or in Tait's own words, "More than one, yes".  Tait had at the time made no further inquiries about who the other staff members were but was more concerned about understanding the nature of the allegation.  In the material given to Tait at the time of determining whether Paxton may have been liable to discipline there was a handwritten note which on the face had been completed by Gray and contained the following notations:
  • "Now reflecting on this I saw it happening to other students"; and
  • "Maddy Bennet couldn't work with him".
  1. [161]
    Clearly at the time of his involvement in the disciplinary process he wasn't faced with simply a set of circumstances where it was about "She said, he said", but had been informed by a subordinate manager there had been multiple complaints about Paxton's conduct and notes from Gray given to him that referenced other students being in a similar predicament and naming another who allegedly couldn't work with him.
  1. [162]
    Acquiescing that Tait's handling of the disciplinary matter was absent of a formal complaint, there was still in the view of the Commission sufficient "red flags" to, at a bare minimum, cause him to consider the commissioning of an investigation, however he chose to disregard such factors.
  1. [163]
    Fletcher, upon appointment as the decision maker, really did little beyond "follow the leader" in accepting firstly the suspension of Paxton without any re-consideration of those circumstances and gave no evidence that he had "cast his mind" to the matter of a formal investigation, despite having access to Gray's 11 page complaint which documented a multitude of allegations in respect of Paxton's conduct.
  1. [164]
    On the reading of Gray's correspondence there was, in the opinion of the Commission, a number of points made that would lead a reasonable person to at least consider the prospect of an investigation of the allegations by an external party.  These included such commentary as:
  • ". . . I noticed from quite early on in my placement that Mr Paxton spent more time talking to another student and me than he did to the student he was responsible for"; (paragraph 8)
  • "Mr Paxton also engaged with one other student and me far more often than any other supervisor, including my own supervisors"; (paragraph 11)
  • "Mr Paxton started referring to the other student and me by the pet names 'B1 and B2'; (paragraph 13(c)) and
  • "I was speaking to one of the other students about whether she wanted to work at QCH one day.  She replied that she did not want to work here because of Mr Paxton" (paragraph 30).[27]
  1. [165]
    The failure of both decision makers at separate times to, at the very least, give consideration to having the complaints formally investigated is just a further example of this disciplinary process lacking the necessary quality reasonably expected in the circumstances.

Restraint from taking further action against Paxton

  1. [166]
    One of the relief orders sought by Paxton was that:

A direction that the Respondent, by any of its agencies, units, employees or agents, not to take any action of any kind in connection with my employment in respect of the matters contained in the show cause letters as mentioned in paragraphs 15 and 5.[28]

  1. [167]
    Accepting the relief sought identifying the matters contained in the show cause letters as being exempt from any consideration or action into the future, the obvious corollary would be that the complaint from Gray fades into the distance, never having been tested.  The impact of such an outcome in the workplace would create a bothering precedent, although more importantly it would prevent the employer from exercising their inherent duty of care in relation to one's employment.
  1. [168]
    Furthermore, there would be an unwelcome consequence for Paxton in the matter not proceeding with the potential for his standing in the workplace to be negatively impacted.  The following exchange took place in the proceedings when counsel for Paxton cross-examined Tait:

MR RAWLINGS:  Now, you're aware, obviously, that allegations of sexual harassment are serious?---Yes.

Those allegations can have an impact upon an individual's career. Are you aware of that?---Yes.

MR RAWLINGS:  And you're also aware that not just substantiated sexual harassment allegations could hurt someone's career, but also merely the existence of a complaint can cause someone to change standing in the workplace. You're aware of that?---Yes.[29]

  1. [169]
    The proposition that the CHQHHS or any of its units, agents or employees be injuncted from proceeding with any action against Paxton in the future is rejected for the reasons that have been outlined in the preceding paragraphs.

Findings

  1. [170]
    On the consideration of the evidence, material and submissions before the proceedings, subject to the requisite standard of proof, I have determined that the disciplinary action against Paxton commenced on 12 March 2019 with the suspension from employment on full remuneration and the subsequent issue of Show Cause Notices on 3 April 2019 and 9 July 2019 had been carried out in a manner that if allowed to continue to evolve without intervention by the Commission, the fundamental elements of equity and good conscience would not have reasonable prospects of being met.
  1. [171]
    Accordingly, the said disciplinary action is to cease forthwith and is to be recommenced in accordance with orders to be made by the Commission in respect of the conduct of the disciplinary process.
  1. [172]
    In consideration of the application, a number of conclusions have been drawn by the Commission in respect of the following:
  • suspension of Paxton;
  • Show Cause Notices issued;
  • decision maker's level of expertise;
  • lack of a formal investigation; and
  • employer restraint from taking further action in the disciplinary process.
  1. [173]
    Of the abovementioned conclusions some will be addressed in orders to be made by the Commission, others will require no formal finding as their relevance will be extinguished by the decision to cease the existing disciplinary action.  The one exception that requires a specific mention, is the matter of Paxton's employment status, as a result of concluding the suspension implemented on 12 March 2019 be set aside.
  1. [174]
    The Commission, cognisant of the material before the proceedings that had not been available to Tait in March 2019, namely the eleven (11) page complaint provided to the CHQHHS by Gray on 8 July 2019, finds that in the circumstances it would be judicious for an order to be made in the form of an interim suspension of Paxton's employment to enable the compliance with the orders to be made in terms of the recommencement of the disciplinary process.

Orders

  1. [175]
    It is ordered:
  1. The disciplinary action commenced on 12 March 2019 against Paxton is to cease forthwith and be recommenced afresh pursuant to subsequent orders made by the Commission specifying the conduct to be observed by the CHQHHS initially and then the delegate appointed in connection with the process.
  1. A formal investigation into the allegations that had been levelled against Paxton as a result of the complaint formally made by Gray on 8 July 2019 is to be commissioned by the CHQHHS, utilising the services of a provider external to the Health Service.
  1. The CHQHHS is to exercise the lawful powers of delegation available to appoint an appropriately qualified person to perform the role as the delegated decision maker in the disciplinary action involving Paxton.

The appointed delegate will be someone without any previous involvement in the disciplinary process, thus far, and from outside the work unit where Paxton is employed.

  1. Upon appointment, the delegate should be provided with all relevant material relating to the disciplinary action excluding the previously issued Show Cause Notices.  Further, upon completion of the formal investigation, a copy of any report emanating from that procedure is to be provided to the delegate without delay.
  1. The delegate, once in possession of all material pertinent to the disciplinary action, is required to determine based upon the material at their disposal, whether grounds exist for discipline pursuant to s 187 of the PS Act and, if so, should Paxton's employment continue to be suspended in accordance with s 189(1) of the PS Act.
  1. If it is determined by the delegate that grounds exist for a disciplinary action pursuant to s 187 of the PS Act, a new Show Cause Notice will be issued, and at the same time Paxton should be provided with all material to be relied upon in the determination of the said action.
  1. In the interim, Paxton is to remain suspended from employment on his full remuneration.
  1. [176]
    I so order.

Footnotes

[1] Briginshaw v Briginshaw [1938] HCA 34; 60 CLR 336.

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

[3] George v Rockett (1990) 170 CLR 104, 115-116.

[4] Berenyi v Maynard & Anor [2015] QSC 370, [80]-[91].

[5] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC 39, [107].

[6] Wirth v Mackay Hospital and Health Service & Anor [2016] QSC, [33](a).

[7] Exhibit 1.

[8] Exhibit 2.

[9] Exhibit 1.

[10] Ibid.

[11] Exhibit 4.

[12] Zink v Townsville Hospital and Health Service [2019] QIRC 181, [285]-[286].

[13] Dorante-Day v Marsden [2019] QSC 125.

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

[15] Exhibit 4.

[16] Ibid.

[17] George v Rockett [1990] HCA 26; (1990) 170 CLR 104, 14.

[18] Walters v Drummond & Ors [2019] QSC 290, [195].

[19] Ibid, [199].

[20] Walters v Drummond & Ors [2019] QSC 290, [209].

[21] Zink v Townsville Hospital and Health Service [2019] QIRC 181, [288].

[22] Etherton v Public Service Board of New South Wales (1985) 1 NSWLR 430.

[23] Berenyi v Maynard & Anor [2015] QSC 370, [81].

 

[24] Dorante-Day v Marsden [2019] QSC 125, [3]-[4].

[25] Ibid, [35].

[26] Exhibit 2.

[27] Exhibit 5, ANF-2.

[28] Exhibit 1.

[29] T2-11, L25-29.

Close

Editorial Notes

  • Published Case Name:

    Paxton v Children's Health Queensland, Hospital and Health Service

  • Shortened Case Name:

    Paxton v Children's Health Queensland, Hospital and Health Service

  • MNC:

    [2020] QIRC 8

  • Court:

    QIRC

  • Judge(s):

    Member Thompson IC

  • Date:

    15 Jan 2020

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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