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  • Unreported Judgment

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service

 

[2020] QIRC 49

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: 

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2020] QIRC 049

PARTIES: 

Queensland Nurses and Midwives' Union of Employees

(Applicant)

v

West Moreton Hospital and Health Service

(First Respondent)

CASE NO:

GP/2018/29 and GP/2019/3

PROCEEDING:

General Protections 

DELIVERED ON:

HEARING DATES:

3 April 2020

25 February 2019

18 April 2019

26 April 2019

10 May 2019

14 May 2019

4 June 2019

5 June 2019

6 June 2019

2 October 2019

MEMBER:

Black IC

HEARD AT:

Brisbane

ORDER:

  1. Application dismissed.
  2. Order for suppression of particular exhibits.

CATCHWORDS:

INDUSTRIAL RELATIONS ACT 2016 – General Protections – whether workplace right exercised –whether commencement of investigations constitutes adverse action – whether suspension on full pay and a placement on alternative duties constitutes adverse action – whether the exemption provided in s 282(6) of the IR Act applies to decisions made under sections 137 and 187 of the PS Act, and Part 9 of the Hospital and Health Boards Act 2011–whether a collaborative decision making process involved.  

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 280, s 282, s 284, s 285, s 290, s 291, s 305, s 306, s 314.

Public Service Act 2008 s 3, s 137, s 187, s 188.

Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd and Others (No 3) [2013] FCA 525

Board of Bendigo Regional Institute of Technical and Further Education and Advancement v Barclay [2012] HCA 32

Bowling v General Motors-Holden Pty Ltd [1980] FCA 176.ommonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329

Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 32

Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Telstra Corporation (Australian Industrial Relations Commission, Vice President Lawler, 2 July 2003)

Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131

Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046

Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462

Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020

Foster v Secretary to the Department of Education and Early Childhood Development (Vic) [2008] VSC 504

Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22

Kimpton v Minister for Education of Victoria (1996) 65 IR 317

Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1

Police Federation of Australia v Nixon (2008) 168 FCR 340

Schipp & Anor v The Star Entertainment Qld Limited [2019] ICQ 009

Shea v TRUenergy FCA (2014) IR 242

Shea v TRUenergy Services Pty Ltd (No 6) [2014] FCA 271

Wayne Douglas Blair v Australian Motor Industries Limited [1982] FCA 143

APPEARANCES:

Mr L S Reidy of Counsel, directly instructed, for the applicant.

C Murdoch QC and Mr J C Dwyer of Counsel, instructed by McCullough Robertson Lawyers, for the respondents.

Decision

The Applications

  1. [1]
    The Queensland Nurses & Midwives' Union of Employees (QNMU) lodged an application on 10 December 2018 pursuant to the general protections provisions of the Industrial Relations Act 2016 (IR Act). The application relates to actions taken against Ms Tanja Mattner by her employer, the West Moreton Hospital and Health Service (the health service). A subsequent application was filed on 26 February 2019.
  1. [2]
    In its initial application (GP 2018/29), the QNMU applied for orders against the health service. In its subsequent application (GP 2019/3), the QNMU also sought orders against three individual respondents, Ms Finley, Ms Giles, and Ms Curtis.  Ms Finley is the Director of Operations or Nursing Director for the Prison Health Service; Ms Giles is the Acting Executive Director Mental Health and Specialised Services for the health service; Ms Curtis was at various times the Acting Executive Director Mental Health and Specialised Services and the Executive Director Mental Health and Specialised Services for the health service.
  1. [3]
    The QNMU requested that both applications be joined. The respondents did not oppose the joinder and a decision to join matter GP 2018/29 with matter GP 2019/3 was made on 26 April 2019.
  1. [4]
    An application amending matter GP 2018/29 was filed by the QNMU on 25 February 2019. The respondent did not object to the amendments being made. The amended application alleged that the health service took unlawful adverse action against Ms Mattner in contravention of sections 285 and 291 of the IR Act. The amended application identified 19 instances of alleged unlawful adverse action and sought a range of orders and injunctions.

Witness evidence

  1. [5]
    A considerable number of affidavits were filed during the course of the proceedings. In addition, oral testimony was provided by the following:

For the respondents:

  • Bretine Curtis in the interlocutory matter
  • Bretine Curtis in the substantive matter
  • Evelyn Dwyer
  • Michelle Giles
  • Sarah Hesse
  • Robyn Henderson
  • Cara-Lee Bradley
  • Yvonne Prince
  • Marie Finley

For the applicant:

  • Tanja Mattner
  • Vonnie Semple

Affidavit evidence

  1. [6]
    The following affidavits were filed in in the proceedings either at the interlocutory stage or in relation to the substantive hearing:

For the applicant:

Affidavit

Date

Tanja Mattner

10 December 2018

Tanja Mattner

18 April 2019

Tanja Mattner

17 May 2019

Tanja Mattner

3 June 2019

Veronica Therese Semple

25 Feb 2019

Veronica Therese Semple

26 Feb 2019

Veronica Therese Semple

20 March 2019

Veronica Therese Semple

15 April 2019

Veronica Therese Semple

23 April 2019

Veronica Therese Semple

9 May 2019

Teresa Chase

10 Dec 2018

Sally Anne Higgs

16 April 2019

Rachael Ashley-Butler

16 April 2019

Kim Harris

17 May 2019

Sally Gill

17 May 2019

Helen Cosic

17 May 2019

  1. [7]
    For the respondents:

Affidavit

Date

Yolanda Suarez

16 April 2019

Yolanda Suarez (unredacted version)

18 April 2019

Yvonne Prince

13 December 2019

Yvonne Prince

4 March 2019

Yvonne Prince (unredacted version)

15 April 2019

Yvonne Prince (redacted version)

16 April 2019

Yvonne Prince

24 April 2019

Yvonne Prince

20 May 2019

Bretine Curtis

18 April 2019

Bretine Curtis

24 April 2019

Suzanna Trayling

24 April 2019

Suzanna Trayling

17 May 2019

Dr Robyn Henderson

24 April 2019

Dr Robyn Henderson

31 May 2019

Cara-Lee Bradley

8 May 2019

Cara-Lee Bradley

24 May 2019

Michelle Giles

21 May 2019

Kirsty Lee Koch

21 May 2019

Evelyn Dwyer

17 May 2019

Sarah Hesse

31 May 2019

Lauren Griffin

31 May 2019

Maree Finley

31 May 2019

Legislation

  1. [8]
    The relevant parts of the relevant sections of the IR Act are reproduced hereunder:

280 Action to which this part applies

Subject to section 281, this part applies to the following action—

  1. (a)
    action taken by an employer;
  1. (b)
    action that affects, is capable of affecting or is taken with intent to affect the activities, relationships or business of an employer;
  1. (c)
    action that consists of advising, encouraging or inciting, or action taken with intent to coerce, an employer—
  1. (i)
    to take, or not take, particular action in relation to another person; or
  1. (ii)
    to threaten to take, or not take, particular action in relation to another person.

282 Meaning of adverse action

  1. (1)
    Adverse action is taken by an employer against an employee if the

employer—

  1. (a)
    dismisses the employee; or
  1. (b)
    injures the employee in his or her employment; or
  1. (c)
    alters the position of the employee to the employee's prejudice; or
  1. (d)
    discriminates between the employee and other employees of the employer.

  1. (5)
    Adverse actionincludes—
  1. (a)
    threatening to take action covered by subsections (1) to (4); and
  1. (b)
    organising to take action covered by subsections (1) to (4).
  1. (6)
    Adverse action does not include action that is authorised under—
  1. (a)
    this Act or any other law of the State; or
  1. (b)
    a law of the Commonwealth.

284 Meaning of workplace right

  1. (1)
    A person has a workplace right if the person—
  1. (a)
    has a right to the benefit of, or has a role or responsibility under, an industrial law, industrial instrument or order made by an industrial body; or
  1. (b)
    is able to start, or participate in, a process or proceedings under an industrial law or industrial instrument; or
  1. (c)
    is able to make a complaint or inquiry—
  1. (i)
    to an entity having the capacity under an industrial law to seek compliance with that law or an industrial instrument; or
  1. (ii)
    if the person is an employee—in relation to his or her employment.
  1. (2)
    In this section—

industrial body means—

  1. (a)
    the commission; or
  1. (b)
    the court, or another court or commission (however called), exercising industrial law functions and powers corresponding to the commission's functions and powers.

285 Protection

A person must not take adverse action against another person—

  1. (a)
    because the other person—
  1. (i)
    has a workplace right; or
  2. (ii)
    has, or has not, exercised a workplace right; or
  3. (iii)
    proposes to or proposes not to, or has at any time proposed to or proposed not to, exercise a workplace right; or
  1. (b)
    to prevent the exercise of a workplace right by the other person.

291 Protection

  1. (1)
    A person must not take adverse action against another person because the other person —
  1. (a)
    is or is not, or was or was not, an officer or member of an industrial association; or

(b)  engages, or has at any time engaged or proposed to engage, in industrial activity within the meaning of section 290(a) or (b); or

(c)  does not engage, or has at any time not engaged or proposed to not engage, in industrial activity within the meaning of section 290 (c) to (f). 

Note—

This section is a civil penalty provision.

  1. [9]
    The QNMU alleged that the respondents had contravened s 285 and s 291 of the IR Act in that they had taken adverse action against Ms Mattner for exercising a workplace right and taking part in industrial activities.
  1. [10]
    Under the legislative scheme, to establish a breach of s 285 or s 291 of the IR Act, the following three elements need to be satisfied:
  1. (i)
    That Ms Mattner had exercised a workplace right or engaged in an industrial activity;
  1. (ii)
    That there has been adverse action; and
  1. (iii)
    That the adverse action was taken because Ms Mattner had exercised a workplace right or engaged in an industrial activity.
  1. [11]
    It is for the applicant to prove that a workplace right has been exercised, industrial activity had been engaged in, and that there is evidence of adverse action. If these preconditions have been satisfied then, pursuant to s 306 of the IR Act, it is for the respondents to prove that the adverse action taken was not taken for a prohibited reason.

 

Statutory presumption

 

  1. [12]
    Section 306 of the IR Act provides:

 

306  Reason for action to be presumed unless proved otherwise

 

  1. (1)
    Subsection (2) applies if—

 

(a) in an application in relation to a contravention of a provision of this part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and

 

(b) taking that action for that reason or with that intent would be a contravention of the provision.

  1. (2)
    It is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.
  2. (3)
    Subsection (2) does not apply in relation to orders for an interim injunction.

 

  1. [13]
    Given that s 306 of the IR Act is in materially the same terms as s 361 of the Fair Work Act (FW Act), and in circumstances where s 361 of the Commonwealth legislation has been subject to considerable judicial attention, it is accepted that relevant principles are to be found principally by reference to decisions handed down in the Commonwealth jurisdiction. Section 361 of the FW Act, in its relevant parts, is set out below:

 

361  Reason for action to be presumed unless proved otherwise

            

  1. (1)
    If:

 

  1. (a)
      in an application in relation to a contravention of this Part, it is alleged that a person took, or is taking, action for a particular reason or with a particular intent; and
  1. (b)
      taking that action for that reason or with that intent would constitute a contravention of this Part;

 

it is presumed that the action was, or is being, taken for that reason or with that intent, unless the person proves otherwise.

 

  1. (2)
    Subsection (1) does not apply in relation to orders for an interim injunction.

 

  1. [14]
    The effect of the presumption set out in s 306 of the IR Act was explained by Gaudron J in Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia:[1]

 

The only issue is whether [the action] was engaged in for a "prohibited reason" or for reasons including a "prohibited reason". Section 298V of the Act operates to create a presumption that it was. And it also operates to place the onus on those who contend otherwise to show that it was not.

 

  1. [15]
    In this matter, the respondents argued that not all the preconditions had been satisfied. The respondents did not accept that Ms Mattner had exercised a workplace right, nor did they concede that adverse action had been taken against Ms Mattner.

 

  1. [16]
    If a determination is made that the preconditions have been satisfied, then it is for the respondents to prove, on the balance of probabilities, that the adverse action was not taken for a prohibited reason or for reasons including a prohibited reason. Expressed differently, the s 306 presumption is only rebutted where there is sufficient evidence to support a positive finding to the effect that none of the operative reasons for the conduct was a prohibited reason.[2]

 

  1. [17]
    In this regard, the fundamental inquiry to be made is why was the adverse action taken.

 

Matters in contention in substantive proceedings

 

  1. [18]
    The parties accepted that the following matters require determination in these proceedings:

 

  1. (a)
    Whether the despatch of an email by Ms Mattner on 8 October 2018 constituted the exercise of a workplace right;
  2. (b)
    Whether the actions taken against Ms Mattner fall within the definition of "adverse action";
  3. (c)
    If findings in favour of the applicant are made in respect to (a) and (b) above, whether the respondents took the adverse action identified because Ms Mattner had exercised a workplace right or had participated in industrial activities; and
  4. (d)
    If findings are entered to the effect that the first respondent has contravened the IR Act, whether the natural person respondents were "involved in" the contraventions within the meaning of s 571 of the IR Act.

 

 The applicant's case

 

  1. [19]
    Given the denials expressed by the respondents, the applicant prosecuted a circumstantial case which was said to make it unlikely that the respondents could prove that adverse action was not taken for prohibited reasons. The applicant submitted that there was a strong circumstantial case that Ms Finley and Ms Bradley were actuated by prohibited reasons and that these reasons motivated them to be the prime movers in the misfortune that Ms Mattner suffered. The applicant also submitted that its case would be reinforced by findings of credit adverse to Ms Bradley, Ms Finley, Ms Dwyer and Ms Hesse.

 

  1. [20]
    The applicant's submission was that the ultimate determination should not rest on any individual examination of issues, but rather be the product of a complete review which recognised a chain of behaviour in which a series of events should be considered as links in the chain which ultimately led to inexplicable and disproportionate responses being adopted by the respondents as events unfolded.

 

  1. [21]
    It was submitted that prima facie evidence of contraventions of the Act were apparent from a narrative of events which disclosed a chronology in which Ms Mattner was faced with increasing hostility from the respondents because of her involvement in workplace issues and trade union activities. It was the applicant's case that the evidence around these events laid an evidentiary foundation of sufficient substance to support a conclusion that the respondents did take the adverse action because the applicant had exercised a workplace right or had participated in industrial activities.

 

  1. [22]
    The applicant said that three separate events characterised the prohibited action. In the first event, Ms Bradley intervened to prejudice the applicant's standing by facilitating the introduction of complaints against the applicant during the Verifact investigation. This intervention occurred on 8 November 2018 and was motivated by a desire to retaliate against the applicant because the applicant had complained about NUM Reid on 8 October 2018 and which complaint had led to the commissioning of an external investigation into Ms Reid's behaviour and her removal from her normal work location.

 

  1. [23]
    The second event involved Ms Finley's decision to refer a bundle of complaints against Ms Mattner to HR and the Verifact investigator on 22 November 2018. Except for the Polmeer complaint, all the complaints were old and had either not required action or had been resolved. Ms Polmeer's complaint should have been dealt with by NUM Dwyer and there was no valid reason for its distribution to Ms Bradley, Ms Finley and HR.

 

  1. [24]
    The applicant submitted that there was no obvious or plausible reason for the decision to revive old complaints on 22 November 2018. Absent a credible or plausible reason, the most likely reason, and the true reason for acting on the complaints, was that Ms Finley was motivated by a prohibited reason. Ms Finley knew that Ms Mattner had complained on 8 October 2018 and she had become aware of Ms Mattner's participation in the 19 November 2018 QNMU meeting and knew that Ms Mattner had strongly advocated the escalation of industrial action.

 

  1. [25]
    On the applicant's account, the decision to commence the Verifact Part B investigation turned on these two management interventions by Ms Bradley and Ms Finley. These interventions changed the course of an otherwise entirely benign process in terms of implications for Ms Mattner, into an inquiry into Ms Mattner's conduct and behaviour. 

 

  1. [26]
    The third event related to the manner in which the respondents responded to the pathology and VMO complaints made by Ms Hesse on 25 November 2018. The applicant submitted that the response to this complaint lacked integrity and that the process was manipulated by Ms Finley to ensure Ms Mattner was brought into further disrepute and to ensure Ms Mattner was moved out of Wolston Park. On the applicant's narrative, this was the final step in an escalating response by Ms Finley and Ms Bradley to harm Ms Mattner because of her involvement in workplace issues.

 

Findings

 

  1. [27]
    The following findings are made on the evidence and for the reasons that follow:

 

Did Ms Mattner exercise a workplace right?

 

  • Ms Mattner exercised a workplace right in complaining about Ms Reid's conduct and behaviour on 8 October 2018; in participating in a QNMU branch meeting on 19 November 2018; and in participating in the Minister's meeting on 21 November 2018.

 

Was adverse action taken?

 

  • Adverse action was taken in the commencement of a show cause disciplinary process on 19 December 2018 in relation to the 25 November 2018 Hesse allegations;
  • There is a significant doubt that the commencement of the Part B Verifact process constituted adverse action. Nothing more has happened other than that Ms Mattner has been asked to respond to specified allegations. Ms Mattner has yet to respond to the allegations and it is not known whether any of the allegations will be substantiated. It is questionable that Ms Mattner's security in employment has been reduced in a context where some complaints have been made against Ms Mattner, and where the health service has determined that the complaints should be investigated by an external party;
  • In the event that I may be wrong about my conclusion that the decision to ask Verifact to investigate allegations against Ms Mattner did not amount to adverse action, I have elected to proceed, in the determination of the application, on the basis that the commencement of the Part B investigation did constitute adverse action;
  • Adverse action has not been taken in decisions of the respondents to suspend and transfer Ms Mattner pursuant to s 137 of the PS Act.

 

Who made the decisions to take adverse action?

 

  • The decisions to take adverse action were the product of a collaborative decision-making process. Ms Trayling, Ms Prince, Dr Henderson, Ms Curtis, Ms Bradley and Ms Finley all made contributions to the decision-making process;
  • All the decision makers were familiar with the underpinning factual matrix and the justification for the taking of adverse action was anchored to this factual matrix;
  • Neither Ms Bradley nor Ms Finley made a disproportionate contribution to the decision-making process;
  • Both Ms Bradley and Ms Finley acted on the advice of HR in supporting decisions to take adverse action;
  • HR played the pivotal role in the determination of responses to the Hesse and Verifact allegations;
  • A dispersed decision-making process, on the facts and circumstances of this case, makes it unlikely that the decisions to take adverse action were motivated by prohibited reasons.

 

Did the decision makers know that Ms Mattner had exercised a workplace right and had participated in industrial activities?

 

  • Neither Ms Trayling, Ms Prince, Dr Henderson nor Ms Curtis knew, at the relevant times, that Ms Mattner had made a complaint against Ms Reid, or that Ms Mattner had attended union meetings on 19 November 2018 and 21 November 2018;
  • Ms Bradley and Ms Finley knew that Ms Mattner had exercised a workplace right on 8 October 2018;
  • Neither Ms Finley nor Ms Bradley knew at the relevant times that Ms Mattner had attended union meetings on 19 November 2018 and 21 November 2018.

 

Was the adverse action taken because Ms Mattner exercised a workplace right on 8 October 2018 or because Ms Mattner participated in industrial activities on 19 and 21 November 2018?

 

  • There was no serious suggestion made by the applicant that Ms Prince, Ms Trayling, Ms Curtis or Dr Henderson were motivated by a prohibited reason in their contributions to the decision-making process. None of these decision makers knew that Ms Mattner had exercised a workplace right or had participated in industrial activities.
  • The evidence is insufficient to establish any causal connection between the exercise of a workplace right on 8 October 2018 and decisions taken by the respondents to take adverse action.
  • While Ms Bradley may have known that nurse practitioners would make complaints to Ms Suarez in their Verifact interviews, her decision to allow nurse practitioners to complain was not causally associated with the exercise of a workplace right by Ms Mattner on 8 October 2018.
  • Any determinative role held by Ms Bradley had most likely ended before Ms Mattner participated in industrial activities. She had some responsibility for events when she relieved Ms Dwyer for the week commencing 26 November 2018, but at this point the management of Ms Mattner's conduct and behaviour had become a collaborative exercise in which HR was the principal player.
  • The substantial and operative reason for Ms Finley's decision on 22 November 2018 to refer complaints to Ms Prince, was Ms Finley's understanding that the complaints made against Ms Mattner needed to be acted on by management. Nor do I accept that Ms Finley was the determinative player following her referral of the pathology form allegation to Ms Prince and Ms Trayling. HR was the determinative player and Ms Finley acted on their advice. Whatever the extent or nature of Ms Finley's contribution after 25 November 2018, her contribution was not motivated by prohibited reasons.

 

Workplace right

 

  1. [28]
    The applicant said that Ms Mattner exercised a workplace right when she despatched an email on 8 October 2018 in which she drew attention to a workplace incident which she said distressed many staff, and requested that management convene an urgent meeting to address a number of serious issues. The respondents did not accept that the applicant exercised a workplace right in despatching the 8 October 2018 email.

 

Industrial activities

 

  1. [29]
    The applicant submitted that Ms Mattner engaged in an industrial activity when she participated in a QNMU meeting on 19 November 2018 and when she attended a meeting with the Minister at the Brisbane Correctional Centre on 21 November 2018. The Minister convened the meeting for the purpose of hearing from nurse representatives about workplace issues.

 

  1. [30]
    On 19 November 2018, Ms Mattner participated in a QNMU Branch Meeting which was conducted by teleconference. In her 10 December 2018 affidavit, Ms Mattner said that during the meeting she had been outspoken about workloads, staffing, fatigue management and safety issues at Wolston Park. She said that she very strongly expressed her belief that management must be held accountable for the staffing situation in the Prison Health Services. Ms Mattner said that members, including herself, resolved that a low priority task list be developed and sent to management.

 

  1. [31]
    Ms Semple said that she had participated in the branch meeting. She confirmed that Ms Mattner had expressed strong views about management accountability, had suggested a stop work meeting at a time when it would have the most impact, and supported the resolution about a low priority task list.

 

  1. [32]
    On 21 November 2018, Ms Mattner attended a meeting with the Health Minister at the Brisbane Correctional Centre. The next day, Ms Mattner said that she, and other nurses, received a direction from Nurse Unit Manager Dwyer to the effect that they were not to attend other centres on their days off, or at any other time, to hold meetings to discuss work related issues.

 

  1. [33]
    In her affidavit dated 10 December 2018, Ms Chase said that during the branch meeting and the meeting with the Minister, Ms Mattner "made complaints about the failure of management to address ongoing workloads, staffing, fatigue management and safety issues".

 

  1. [34]
    It was not in dispute that the applicant's participation in the QNMU Branch Meeting on 19 November 2018, and her participation in the meeting convened by the Minister at the Brisbane Correctional Centre on 21 November 2018, constituted industrial activities pursuant to s 290 of the IR Act.

 

Was a workplace right exercised?

 

  1. [35]
    Ms Mattner's 8 October 2018 email was sent at 1.50 pm to both Ms Bradley and Ms Finley. In the email Ms Mattner requested an urgent meeting with Ms Bradley and the "nursing staff at Wolston". She referred to morale and mood and referenced a "display in the health centre" which involved Nurse Unit Manager Reid and Ms Ashley-Butler. Ms Mattner said that the nursing staff who witnessed the event "were all deeply affected". She said that the matter was a serious issue which required urgent attention. The email is reproduced hereunder:

  

 Hi Cara

 

I am not quite sure if Marie has gone on leave yet. I would like to request an urgent meeting this week with you (and Marie if she is still available) and the nursing staff at Wolston. The morale and mood is such that it is affecting to (sic) centre – particularly after last Thursdays display in the health centre. The nursing staff that witnessed the events are all deeply affected, and this has unearthed many serious issues that require urgent attention. Wolston nursing staff would very much appreciate your guidance towards a speedy resolution.

 

  1. [36]
    Ms Bradley replied to the email at 2.43 pm that day, thanked Ms Mattner for the email and said that she would discuss the email with Ms Finley and get back to the applicant. Ms Bradley did not ask any questions or seek any particulars about the matters in issue.

 

  1. [37]
    When Ms Mattner acknowledged receipt of Ms Bradley's email at 4.08 pm on the same day, she asked for an explanation for why the rostering function had been taken off her. In this email, she said inter alia:

 

Apologies for going on about the roster, but I am being punished and I don’t know why? I have done the rosters for the past couple of years – and they were all given to Lore for sign off. I always did fair and equitable rostering, no favouritism, and all staff seemed happy with the rosters. I have been removed from the NUM folder on j:drive, and I no longer have access to the NUM office key. A conversation and some truth and transparency would be appreciated.

 

  1. [38]
    In her affidavit, Ms Higgs said that in early October 2018 she had received complaints from members employed at Wolston Park about bullying and other behavioural issues involving Nurse Unit Manager, Lorraine Reid. Ms Higgs said that she spoke to Ms Bradley and Dr Henderson about the issue and told them that members were considering lodging a grievance in respect of Ms Reid's behaviour. She said that Dr Henderson told her that QNMU members would need to put complaints in writing before she would take any action.

 

  1. [39]
    Ms Finley said in her affidavit that it was her recollection that in early October 2018 Ms Higgs had alerted Dr Henderson to "a number of issues at Wolston" and that "there was discussion amongst the nurses at Wolston to write a letter outlining their complaints".

 

  1. [40]
    It is accepted that meetings with staff took place on 9 October 2018 and 10 October 2018. Ms Bradley, Ms Finley and Ms Koch met with staff on 9 October 2018, while on 10 October 2018 the meeting was attended by Dr Henderson, Ms Bradley, Ms Finley and, for part of the meeting, Ms Koch.

 

  1. [41]
    In her 3 June 2019 affidavit, Ms Mattner said that she attended both meetings. She said that Ms Finley had convened the first meeting and that about five staff members, including herself, spoke a lot. Ms Mattner said that she spoke about the incident in the health club on 4 October 2018 and that she spoke about a range of other issues including bullying and threats relating to AHPRA registration. Ms Mattner said that at the second meeting, Dr Henderson did most of the talking for management. She also said that, at the second meeting, she repeated much of what she had said in the first meeting.

 

  1. [42]
    Either during the 10 October 2018 meeting or soon thereafter, Dr Henderson informed staff that the concerns expressed would be investigated. Around the same time, Ms Reid was reassigned to a different work location for the duration of the investigation.

 

  1. [43]
    On the evidence, only Ms Koch, Ms Bradley and Ms Finley knew about the 8 October 2018 email. In her oral testimony, Dr Henderson said that while she was part of the management response to staff concerns about Ms Reid, she was not aware that Ms Mattner was a complainant and that she did not know any of the staff that attended the meeting that she had addressed.[3] It was her understanding that staff were concerned that they may be at risk of losing their registration and that staff needed some reassurance around that issue:

 

Okay. And the – and – so you don’t know about what an – Verifact was instructed to do but you provided the funding for it, essentially?---So it seemed to me that – and this is my recollection – that there was some angst amongst staff and in my view that was in relation to, you know, suggestions by Lorry Reid that people could be reported inappropriately and lose their registration. That was my view and so in terms of supporting an investigation to understand more fully what the quantum of that was – that was why I supported the Verifact review. It – it provided natural justice for Lorry Reid but it also provided an opportunity or a platform for staff to actually be able to talk to whatever they needed to as well, objectively.[4]

 

  1. [44]
    The effect of the applicant's submission was that Ms Mattner instigated the complaint against Ms Reid. It was her intervention following upon Ms Higgs discussions with Dr Henderson and Ms Bradley that led to the meetings convened by management on 9 and 10 October 2018. It was during these meetings that various complaints were aired about Ms Reid, and it was a result of these meetings that Dr Henderson undertook to commence an investigation in the behaviour and conduct of Ms Reid.

 

  1. [45]
    The applicant relied on a decision of Justice Dodds-Streeton in Shea v TRUenergy[5] in which her Honour, in her summary of principal findings, described a "complaint" as:

 

… a communication which, whether expressly or implicitly, as a matter of substance, irrespective of the words used, conveys a grievance, a finding of fault or accusation.[6]

 

  1. [46]
    Justice Dodds-Streeton had developed her reasoning of what might constitute a complaint in another section of her judgment:

 

626     As held in Ratnayake, it is, in my view, unnecessary that the employee, in making a complaint that he or she is able to make, expressly identifies the communication as a complaint or grievance, or uses any particular form of words. It is necessary only that relevant communication, whatever its precise form, would be reasonably understood in context as an expression of grievance or a finding of fault which seeks, whether expressly or implicitly, that the employer or other relevant party at least take notice of and consider the complaint.

 

627    Whether an employee has made a complaint is a matter of substance, not form, which should be determined in the light of all the relevant circumstances. It does not depend solely on the words used …

 

  1. [47]
    The respondents did not accept that the email conveyed a grievance, a finding of fault, or an accusation. It was the respondents' submission that, on its face, the email does no more than request a meeting with Ms Bradley and Ms Finley. The submission was that a reading of the words used discloses that the email "was not a complaint about anything, and is not made pursuant to any entitlement or right".

 

  1. [48]
    It was relevant in the respondents' perspective that the applicant never claimed that the email constituted a complaint pursuant to s 284 of the IR Act until the first day of the substantive proceedings on 5 June 2019. When the applicant's general protections application was filed on 10 December 2018, the adverse action was identified as the applicant's suspension and transfer and commencement of a disciplinary process against her. In the amended application filed on 25 February 2019, the adverse action was generally identified as the suspension and transfer and the commencement of investigations into Ms Mattner's conduct or behaviour.

 

  1. [49]
    It may be open to conclude, on all the evidence that it was Ms Higgs, not the applicant, who had articulated and communicated the complaint about Ms Reid. It is not known on what basis Dr Henderson concluded that it was necessary for QNMU members to put complaints in writing before any action would be taken, but having communicated that requirement it is likely that the despatch of Ms Mattner's email was consequential.

 

  1. [50]
    The contextual material makes it known that a complaint from staff in relation to Ms Reid would not have surprised either Ms Finley or Ms Bradley. Nor, given the very brief and limited information in her email, did Ms Mattner expect that it would be a surprise. The email was written in a context which reflected that all parties understood what was being conveyed.

 

  1. [51]
    In my view it can safely be inferred from the evidence that Ms Bradley and Ms Finley understood that, in sending the email, Ms Mattner was completing the formality required by Dr Henderson.

 

  1. [52]
    In doing what Dr Henderson requested, I am satisfied that the applicant has played a significant part in the complaint process which had been commenced on behalf of staff by Ms Higgs. In despatching the email, the applicant was confirming that staff wanted a resolution to an ongoing issue which she understood management were aware of, and in respect of which, management were expecting some form of complaint or communication.

 

  1. [53]
    The evidence is sufficient to support a finding that Ms Mattner has exercised a workplace right pursuant to s 284 of the IR Act.

 

Adverse action

 

  1. [54]
    Pursuant to s 282(1) of the IR Act, "adverse action" includes action taken by an employer against an employee which injures the employee in her employment or alters the position of the employee to the employee's prejudice.

 

  1. [55]
    On my understanding of the applicant's submissions, the claimed adverse action can be defined as follows:

 

  • The decision to commence an investigation into complaints made against Ms Mattner during the Verifact investigation into Ms Reid, and into complaints referred to HR by Ms Finley and Ms Dwyer on 22 November 2018;
  • The decision to commence on 19 December 2018 a show cause disciplinary process in response to allegations about a pathology slip and VMO process;
  • Decisions taken on 3 December 2018 and 19 December 2018 to suspend the applicant and place her on alternative duties at the Ipswich General Hospital.

 

  1. [56]
    The applicant submitted that all three events injured Ms Mattner in her employment and altered her position to her prejudice. The respondents however did not accept that any of the actions identified by the applicant as "adverse action" could be so characterised because:

 

  1. (i)
     The respondents were authorised by a law of the state, pursuant to s 282(6) of the IR Act, to take the action that they did;
  1. (ii)
     Neither the Verifact Part B investigation, nor the show cause disciplinary process resulting from the pathology slip and VMO complaints, amounted to adverse action in that neither activity has injured the applicant in her employment or altered her position to her prejudice;
  1. (iii)
     The relocation of the applicant to Ipswich did not result in any detriment or prejudice.

 

Were decisions claimed to constitute adverse action authorised by a law of the state?

 

  1. [57]
    The "General protections" provisions of the IR Act are set out in Part 1 of Chapter 8. Section 278 of Division 1 (Introduction) identifies the purposes of Part 1 of Chapter 8, while s 279 of Division 1 includes definitions for Part 1. Section 279 provides that the definition of "adverse action" is to be found in s 282.

 

  1. [58]
    Section 282 is included in Division 3 of Part 1. Division 3 deals with "Workplace rights". Division 4 of Part 1 deals with "Industrial activities". Sections 285 (Division 3) and 291 (Division 4) prohibit adverse action. The definition of "adverse action" for the purposes of Division 4 is also to be found in s 282.  While the definition is included in Division 3, it applies to Division 4 by virtue of the operation of s 279. This construction is confirmed by a reading of the Explanatory Memorandum to the Industrial Relations Bill 2016 where it is said at page 54 that "clause 279 defines particular terms used in this part" (Part 1).

 

  1. [59]
    Section 282 of the IR Act identifies the "Meaning of adverse action". Subsection (1) through to subsection (5) of the section identifies what constitutes adverse action, while subsections (6) and (7) exclude particular actions from the definition of adverse action. 

 

  1. [60]
    Section 282(6) of the IR Act provides that "adverse action" does not include action that is authorised under the IR Act or under any other law of the State.

 

  1. [61]
    Section 282(1) of the IR Act provides, inter alia, that "adverse action" is taken by an employer against an employee if the employer "injures the employee in his or her employment" or "alters the position of the employee to the employee's prejudice". The relevant effect of s 285 and s 291 of the IR Act is that these sections prohibit an employer from taking adverse action because an employee has exercised a workplace right or has engaged in an industrial activity.

 

  1. [62]
    The "purposes" of the general protections' provisions are set out in s 278 of the IR Act and include:

 

  1. (3)
     The purposes of this part are as follows—

 

  1. (a)
     to protect workplace rights;
  1. (b)
     to protect freedom of association by ensuring that persons are—

(i) free to become, or not become, members of industrial associations; and

(ii) free to be represented, or not represented, by industrial associations; and

(iii) free to participate, or not participate, in lawful industrial activities;

  1. (c)
     to provide protection from workplace discrimination;
  1. (d)
     to provide effective relief for persons who have been discriminated against, victimised or otherwise adversely affected as a result of contraventions of this part.

 

  1. [63]
    The explanatory memorandum to the Industrial Relations Bill 2016, at page 54, comments on the purpose of Part 1 as follows:

 

The focus for the general protections part under this Bill is to provide rights and obligations for public sector and local government sector employees and employers.

 

  1. [64]
    It was the respondent's submission that all of the actions claimed by the applicant to constitute adverse action, were actions that the respondents were empowered to take pursuant to particular provisions of relevant State Acts. That is, that particular laws of the state included express provisions which empowered the health service to act as it did in suspending and transferring the applicant, and in commencing investigations into Ms Mattner's conduct.

 

  1. [65]
    The decision to relocate the applicant to Ipswich was a decision made pursuant to s 137(3) of the PS Act, the decision made to commence a show cause disciplinary process in response to the pathology slip and VMO allegations was a decision made pursuant to Chapter 6 of the PS Act, while the decision made to commence a health service investigation in relation to various complaints made against Ms Mattner was made pursuant to Part 9 of the Hospital and Health Boards Act 2011 (HHB Act).

 

  1. [66]
    The applicant did not accept however that the particular provisions relied on by the respondents could have the effect claimed. The applicant maintained that it would require a very specific legislative intent to be manifested in the PS Act or other state law for the health service to be granted immunity from the relevant IR Act provisions. It would be contrary to the purposes of the general protections' provisions of the IR Act if the provisions relied on were to have the effect of, or to provide authority for, the respondents to injure Ms Mattner in her employment or to alter her position to her prejudice.

 

  1. [67]
    Justice Gaegler discussed the modern approach to statutory construction in his minority judgment in SZTAL v Minister for Immigration and Border Protection,[7] in the following terms:

 

36 Drawing on that statement, and its antecedents, Brennan CJ, Dawson, Toohey and Gummow JJ said in CIC Insurance Ltd v Bankstown Football Club Ltd36:

 

"[T]he modern approach to statutory interpretation (a) insists that the context be considered in the first instance, not merely at some later stage when ambiguity might be thought to arise, and (b) uses 'context' in its widest sense to include such things as the existing state of the law and the mischief which, by legitimate means such as those just mentioned, one may discern the statute was intended to remedy."

 

37 Both of those passages have been "cited too often to be doubted". Their import has been reinforced, not superseded or contradicted, by more recent statements emphasising that statutory construction involves attribution of meaning to statutory text. The task of construction begins, as it ends, with the statutory text. But the statutory text from beginning to end is construed in context, and an understanding of context has utility "if, and in so far as, it assists in fixing the meaning of the statutory text".

 

38 The constructional choice presented by a statutory text read in context is sometimes between one meaning which can be characterised as the ordinary or grammatical meaning and another meaning which cannot be so characterised. More commonly, the choice is from "a range of potential meanings, some of which may be less immediately obvious or more awkward than others, but none of which is wholly ungrammatical or unnatural", in which case the choice "turns less on linguistic fit than on evaluation of the relative coherence of the alternatives with identified statutory objects or policies".

 

39 Integral to making such a choice is discernment of statutory purpose. The unqualified statutory instruction that, in interpreting a provision of a Commonwealth Act, "the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation", "is in that respect a particular statutory reflection of a general systemic principle".

   

  [Citations omitted]

 

  1. [68]
    In Darlington v State of Queensland (Darlington),[8] Martin J observed:

 

[15]  The fact that it is not immediately obvious how s 277(11) works with s 73 because of the use of the words "proposed contravention" does not mean that a court is at liberty to ignore them or treat them as superfluous. All words must prima facie be given some meaning and effect. See Project Blue Sky Inc & Ors v Australian Broadcasting Authority. Further, s 14A of the Acts Interpretation Act 1954 provides:

 

"(1) In the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act is to be preferred to any other interpretation."

 

[16]  It must be accepted, though, that there are occasions in which it may not be possible to provide a full and accurate meaning to every word. See Solution 6 Holdings Ltd & Ors v Industrial Relations Commission of New South Wales & Ors. If that is the case, then the "sections of a statute must be construed so as to make the statute a consistent and harmonious whole; and, ‘if after all, it turns out that that cannot be done, the construction that produces the greatest harmony and the least inconsistency is that which ought to prevail.’"

 

[Citations omitted]

 

  1. [69]
    For the applicant, the starting point in the exercise of statutory construction was to review the purposes of Part 1 set out in s 278 of the IR Act. Further to this examination, it was relevant that Division 2 of Part 1 (Application of this part) cast the application of the Part in very broad terms and with very little qualification. Section 280(a) provided that Part 1 applies to "action taken by an employer", while the only exclusions to this provision were to be found in s 281 which excluded action subject to the Fair Work Act and an action for unfair dismissal.

 

  1. [70]
    The applicant said that sections 278 and 280 of the IR Act are indicative of a legislative intention that the general protection provisions provide absolute and wide protection for employee's workplace rights and freedoms of association.

 

  1. [71]
    The applicant relied on s 14A of the Acts Interpretation Act in submitting that the respondents' argument was counterintuitive and contrary to the legislative purpose. It was noted that Schedule 1 to that Act provides that "purpose", for an Act, includes "policy objective". If s 282(6) were able to be applied in the way proposed by the respondents, the applicant said that it would effectively undermine the purposes of Part 1 of Chapter 8, and render the protections provided as useless.

 

  1. [72]
    In more particular terms, the applicant also relied on Federal Court of Australia judgments in the matters of CFMEU v Rio Tinto Coal[9] and CFMEU v De Martin & Gasparini Pty Limited[10].

 

  1. [73]
    The matter in issue in CFMEU v Rio Tinto related to the validity of differential payments made by Rio Tinto to groups of employees. A consequence of the differential payment arrangements was that payments made to non-CFMEU members were greater than payments made to CFMEU members. The argument pressed by Rio Tinto in an application to strike out was that all payments were made in accordance with "workplace instruments" as defined in the FW Act. For CFMEU members, payments were made in accordance with an enterprise agreement. It was in this context that Rio Tinto argued that its differential or discriminatory payments were authorised by sections 50, 51, and 52 of the FW Act.

 

  1. [74]
    Section 50 of the FW Act provides that a person must not contravene a term of an enterprise agreement. Section 51 of the FW Act provides that an agreement must "apply" to a person before rights or obligations can be enforced. Section 52 of the FW Act provides the circumstances in which an enterprise agreement applies to an employer, employee and employer organisation.

 

  1. [75]
    It was Rio Tinto's submission that these provisions of the FW Act required Rio Tinto to pay employees in accordance with the terms of the relevant industrial instruments. For the CFMEU members, this meant that the payments made in accordance with their enterprise agreement were to be seen as payments authorised by the terms of the FW Act.

 

  1. [76]
    In his decision, Flick J concluded that the payments made by Rio Tinto to CFMEU members pursuant to the enterprise agreement could not be properly regarded as payments "authorised" under the Fair Work Act or, alternatively, payments made "by or under" the Fair Work Act. Justice Flick said that the payments "remain as payments made in accordance with and pursuant to the terms" of the agreement. Sections 50, 51, and 52 of the Fair Work Act were not considered to be provisions which provided real authority to engage in conduct which otherwise fell within the definition of adverse action.

 

  1. [77]
    It was as a consequence of this reasoning that the respondents argued that, if the judgement of Flick J was authority for anything, it was authority for the proposition that it was necessary to identify particular provisions in a State law which specifically authorised a particular course of action or conduct. Unlike the case in CFMEU v Rio Tinto, the respondents were not relying on a provision of an enterprise agreement, but were relying on specific provisions of the Hospital and Health Boards Act 2011 and the PS Act to authorise a particular course of action in the event of certain conduct occurring or reasonably believed to be occurring in the workplace. It was the respondents' submission that:

 

… there is an authority under the Public Service Act to commence a disciplinary process, and that’s what occurred in the show cause process here.  In respect of Verifact investigation, the respondent is empowered to conduct an investigation under section 190, subsection (2) of the Hospital and Health Boards Act.  Therefore, the relevant legislation authorises that which is said to be the adverse action.  So this is not a situation where something else is being relied upon as the source of the power and the actual provision relied upon did not provide the authority, as was the case in Rio Tinto or as was the case in De Martin.  The provisions of the relevant statutes that are relied upon authorise the action. (Transcript 02.10.19 at page 53).

 

  1. [78]
    The determination of the respondents' arguments in these proceedings turns on the resolution to two matters. The first matter relates to the construction of s 282 of the IR Act and considers the interaction between s 282(6) and s 282(1) of the IR Act. The second matter considers whether the provisions of the State Acts relied on by the respondents "authorised" the taking of the adverse actions, in circumstances where Justice Flick's reasoning around the use of the term "authorise" is followed. 

 

 Section 282 of the IR Act

 

  1. [79]
    Justice Flick considered the interaction between the FW Act equivalents of s 282(6) of the IR Act and s 282(1) of the IR Act, and discussed whether the exclusion provided in s 282(6) of the IR Act could displace the protection afforded by s 282(1) of the IR Act. He concluded, on the facts and circumstances of the case that he was deciding, that to construe s 282(6) in the manner advocated by the employer would be to "impermissibly intrude into the protection otherwise afforded" by s 282(1).

 

  1. [80]
    Section 342(3) of the FW Act is expressed in the same terms as s 282(6) of the IR Act, while s 342(1) of the FW Act is expressed in the same term as s 282(1) of the IR Act. Justice Flick reasoned (by reference to the sections of the IR Act) that the exclusion in s 282(6) from what would otherwise be adverse action under s 282(1) was to be construed in a manner which gives effect to both the prohibition on adverse action (ss 285 and 291), and the exclusion. In this regard, he considered that if Rio Tinto's position were adopted, it would give "unnecessary and unwarranted pre-eminence" to the exclusionary provision at the expense of the protection afforded. It was his Honour's reasoning that:

 

In other statutory contexts a "wide construction" has not been placed upon an exemption where to do so would be "inconsistent" with the general scheme of the Act: Waters v Public Transport Corporation (1991) 173 CLR 349 at 369 per Mason CJ and Gaudron J.

 

 

Section 342(3), in this confined statutory context, provides an exception.  Section 342(3) should obviously not be construed in a manner which would render the protections meaningless.  That which s 342(3) contemplates, it is concluded, is "action" that is expressly "authorised" by the Fair Work Act or "action" that is sanctioned or approved by a provision (for present purposes) relevantly found elsewhere in the Fair Work Act

 

The "authority" which is referred to is an "authority" which takes its content from the "adverse action" which is prohibited.  In the present context, the "authority" to which s 342(3)(a) is referring to is an "authority" to engage in conduct which otherwise falls within Item 1(d).  Section 50, 51 and 52 provide no real "authority”.

 

If attention is confined to the terms employed in s 342 and the legislative objective sought to be achieved by that one provision, Rio Tinto’s submission is rejected as to the "wide construction" sought to be given to s 342(3) and the narrow operation to be given to s 342(1).

 

  1. [81]
    Consistent with the principles enunciated by Justice Gaegler in SZTAL, the constructional choice may turn on the "evaluation of the relative coherence of the alternatives with identified statutory objects or policies", and that "integral to making such a choice is discernment of statutory purpose".

 

  1. [82]
    In the absence of an express provision in either the PS Act or the HHB Act authorising the taking of adverse action, I accept that to construe s 282(6) in the manner advocated by the respondents would be inconsistent with the purposes of Part 1 of Chapter 6 of the IR Act and would render the protections contained in the section 282(1) meaningless.

 

  1. [83]
    For the reasons that follow, I accept that the required express provision is provided in the case of s 137 of the PS Act, but not provided in Chapter 6 of the PS Act, nor in Part 9 of the HHB Act.  

 

Authorise

 

  1. [84]
    In Visy, Justice Flick had concluded that the particular sections of the FW Act relied on by Rio Tinto provided no real authority for the action taken. In so concluding, Justice Flick stated that caution needed to be exercised in assigning a meaning to the word "authorised", that a wide construction was to be avoided, and that the ordinary and natural meaning of the term "authorise" did not support the position advanced on behalf of Rio Tinto.

 

  1. [85]
    In ascertaining the ordinary and natural meaning of the word "authorise", the Macquarie Dictionary definition of the word was referenced:

 

1. to give authority or legal power to; empower (to do something). 2. to give authority for; formally sanction (an act or proceeding). 3. to establish by authority or usage: authorised by custom. 4. to afford a ground for; warrant; justify.[11]

 

  1. [86]
    Justice Flick closely considered the use of the term "authorise" as it is used in the equivalent of s 282(6) of the IR Act and stated that, if the ordinary meaning of the term were applied, then the application of s 282(6) required the identification of some provision of a state law which gave "authority or legal power" to take a particular action:

 

If this ordinary meaning of the term is to be applied to s 342(3)(a), the success of Rio Tinto’s primary submission thus depends upon the identification of some provision of the Fair Work Act which gives "authority or legal power" or which "empowers" Rio Tinto to make discriminatory payments.

  1. [87]
    Whether or not the provisions of the Acts relied on by the respondents authorise the taking of the action in question is a matter for consideration. Section 187 of the PS Act provides that an employee may be disciplined and identifies grounds for discipline:

 

187      Grounds for discipline

  1. (3)
     A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
     performed the employee’s duties carelessly, incompetently or inefficiently; or
  1. (b)
     been guilty of misconduct; or

   

   

 

  1. [88]
    Section 187 of the PS Act does provide any unconditional authorisation for a public sector employer to injure an employee in employment or alter the position of an employee to their prejudice. It is only if a legitimate finding is made that a ground for discipline exists that some form of disciplinary action can be taken. If legitimate grounds do not exist, the section could not be construed to authorise the taking of adverse action. In these proceedings, the factual contest requires a determination to be made about whether disciplinary action may have been taken, not because of misconduct, but because Ms Mattner exercised a workplace right or participated in an industrial activity. Section 282(6) could not operate to prevent an inquiry into the legitimacy of the grounds or reasons for taking adverse action.

 

  1. [89]
    Whether s 187 of the PS Act is the source of power or legal authority to commence an investigation is also doubted. The principal purpose of the section is to identify grounds for discipline and to provide guidance to public sector employers around the type of conduct or behaviour which should or could attract disciplinary action. This section operates consistent with the purposes of the legislation which are enunciated in s 3 of the PS Act.

 

  1. [90]
    While the purposes of the PS Act include the provision of the rights and obligations of public servants, its purposes are predominantly focussed on administrative, management, and efficiency objectives as disclosed by s 3 of the PS Act:

 

3 Main purposes of Act and their achievement

  1. (3)
     The main purposes of this Act are to—
  1. (a)
     establish a high performing apolitical public service that is—

(i)responsive to Government priorities; and

(ii)focused on the delivery of services in a professional and non-partisan way; and

  1. (b)
     promote the effectiveness and efficiency of government entities; and
  1. (c)
     provide for the administration of the public service and the employment and management of public service employees; and
  1. (d)
     provide for the rights and obligations of public service employees; and
  1. (e)
     promote equality of employment opportunity in the public service and in other particular agencies in the public sector.

 

  1. (3)
     To help achieve the main purposes, this Act—
  1. (a)
     fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and
  1. (b)
     establishes a Public Service Commission to—

(i)enhance the public service’s human resource management and capability; and

(ii)review and improve the overall effectiveness and efficiency of government entities; and

  1. (c)
     establishes a chief executive service and a senior executive service to provide the public service with high performing leaders who will actively promote the purposes and the principles.

 

  1. [91]
    It is more likely the case that the source of power or legal authority for the commencement of an investigation and the taking of disciplinary action is to be found in the common law. It could not be said in my view that but for the operation of s 187 of the PS Act, a public sector employer could not commence any investigation into suspected misconduct or could not take disciplinary action in the event that the misconduct was proven. A distinction can to be drawn between an action which is taken pursuant to a provision of an Act, and an action which is expressly authorised by an Act provision in circumstances where the action would not otherwise be permissible at law. Section 219 of the PS Act is evidence of an intention that the PS Act not displace the operation of the common law in a disciplinary setting: 

 

219  Effect of Act on the State

  1. (3)
      Subject to subsection (3), this Act binds the State.
  1. (3)
     A person who employs another person under this Act employs the person as the authorised agent of the State.
  1. (3)
     The right or power of the State recognised at common law to dispense with the services  of a person employed in the public service is not abrogated or restricted by any provision of this Act.

 

  1. [92]
    While Part 9 of the HHB Act is titled "Health service investigations", the Part is dedicated to setting legislative parameters for the appointment of "health service investigators" and the codification of the powers and responsibilities of health service investigators. In my view, Part 9 of the HHB Act does not include provisions relevant to the decision-making processes of a health service which culminate in a decision to commence an investigation or to invoke the powers available under Part 9 of the HHB Act. Rather, the section proceeds on the basis that the health service has decided to commence an investigation and had taken the step provided for under Part 9 to appoint a health service investigator for particular reasons.

 

  1. [93]
    It follows that Part 9 of the HHB should not be characterised as a source of legal power or authority enabling the health service to commence an investigation into allegations of misconduct.

 

Section 137 of the PS Act

 

  1. [94]
    Section 137 of the PS Act relevantly provides:

 

137  Suspension other than as disciplinary action

  1. (1)
    The chief executive of a department may, by notice, suspend a public service officer from duty if the chief executive reasonably believes the proper and efficient management of the department might be prejudiced if the officer is not suspended.

 

 

  1. (2)
    However, before suspending the officer, the chief executive must consider all alternative duties that may be available for the officer to perform.

 

  1. (3)
    The period of the suspension can not be more than the period that the chief executive reasonably believes is necessary to avoid the prejudice.

 

  1. [95]
    In my view, s 137 of the PS Act can be distinguished from s 187 of the PS Act on two grounds. Firstly, s 137 does provide an express source of legal power or authority in circumstances where but for the section, the actions authorised by the section could not be taken.

 

  1. [96]
    The respondents' action in suspending Ms Mattner and placing her on alternative duties were authorised by s 137 of the PS Act and could not have been taken if this specific authorisation were not provided by s 137 of the PS Act.

 

  1. [97]
    Secondly, there is a basis to conclude that the legislature intended that the exercise of this specific source of power not be considered adverse action. In this regard the provisions empowering the suspension of an employee pursuant to s 137 of the PS Act are analogous with provisions authorising the stand down of employees in particular circumstances. The explanatory memorandum relevant to the introduction of the FW Act identified, by way of illustration, the power to stand down as an action which falls within the exclusion provided in the section equivalent to s 282(6) in the IR Act.

 

1388. Subclause 342(3) provides that action is not adverse action if it is authorised by or under this Bill, any law of the Commonwealth or State or Territory law prescribed by the regulations.

 

Illustrative example

Paragraph 524(1)(c) authorises an employer to stand down an employee during a period in which the employee cannot usefully be employed because of a stoppage of work for any cause for which the employer cannot reasonably be held responsible. An employer who stands down an employee in these circumstances will not have taken adverse action against the employee because the stand down was authorised by law.

 

  1. [98]
    I am satisfied, on balance, that s 282(6) of the IR Act precludes a finding of adverse action in the case of decisions made by the respondents under s 137 of the PS Act. If I am wrong in this regard, consideration needs to be given to whether the decisions of the respondents to suspend and place Ms Mattner on alternative duties might otherwise be regarded as adverse action.

 

Was suspension and transfer adverse action

 

  1. [99]
    Two decisions were made to suspend Ms Mattner and place her on alternative duties. The first decision was made on 3 December 2018 in response to the pathology slip and VMO allegations while the second decision was made on 19 December 2018 in response to the Verifact related allegations. Neither decision was made in a disciplinary context.

 

  1. [100]
    The applicant maintained that Ms Mattner's relocation to Ipswich Hospital was to be considered adverse action. In submissions, the following factors were said to demonstrate how the applicant was injured in her employment or how her position had been altered to her prejudice:

 

  • Adverse financial consequences arising from lesser remuneration;
  • Reputational damage;
  • Loss of promotional opportunities;
  • Diminished job satisfaction;
  • Adverse elements arising from a change from a correctional environment, where the applicant had worked since 2010, to a hospital environment.
  1. [101]
    In her affidavit dated 20 March 2019, Ms Semple in addressing prejudice to Ms Mattner arising from the transfer to Ipswich General Hospital, referred to reputational damage, deskilling that will occur over time as Ms Mattner works in different clinical settings, and financial detriment through increased travel time, increased travel costs and a loss of overtime. She said Ms Mattner would incur continuing financial detriment if the decision to relocate Ms Mattner were not reversed.

 

  1. [102]
    It was Ms Mattner's evidence[12] (Affidavit: 17 May 2019) that the process deployed by the respondents had severely and irreparably damaged her reputation within WMHHS and had adversely affected her capacity to obtain future employment. The process had removed opportunities for her to apply for leadership positions including acting or temporary NUM positions which attracted a higher rate of pay. She said that the difference between her rate of pay, and the rate of pay of a Nurse Unit Manager, was $566.00 per fortnight.

 

  1. [103]
    In submissions, another area of prejudice was identified which had not been canvassed in the evidence.[13] It was submitted that the involuntary relocation of Ms Mattner had caused a fundamental alteration to her contract of employment in that while her substantive position was that of clinical nurse, she was working at the Ipswich Hospital as a registered nurse performing mainly administrative duties. In making this submission, the applicant relied on the judgment in Foster v Secretary to the Department of Education and Early Childhood Development (Vic)[14]where a teacher had been removed from his teaching role and assigned to demeaning and menial duties.

 

  1. [104]
    As I followed the argument, while her remuneration level may have remained unchanged, it was proposed that Ms Mattner had nevertheless suffered a significant professional detriment arising from the change in work location. The respondents however maintained that Foster could be distinguished on the facts.

 

  1. [105]
    The respondents did not accept that Ms Mattner had been injured or prejudiced in her relocation to Ipswich. In their view, the areas of adverse action identified by the applicant and Ms Mattner were predominantly speculative in nature and not factual. As the respondents saw it, Ms Mattner had put forward a "series of opinions and assertions and speculation, as opposed to evidence of there being any actual adverse affectation of her position." The respondents also contested the relevance of unsubstantiated propositions advanced by the applicant which projected Ms Mattner's predicament beyond a disciplinary stage and speculated excessively on possible outcomes including that her reputation had been irreparably damaged and that her prospects of obtaining future employment, presumably in a context of termination, had been adversely affected.

 

  1. [106]
    For my part, I decline to attach significant weight to reputational factors; I note that Ms Mattner's placement at Ipswich was not effected under the disciplinary provisions of the PS Act; I do not consider that remuneration has changed significantly; and it is unlikely that travel arrangements have changed for the worse either in a temporal or monetary sense. Nor am I inclined to attach significant weight to claims of diminished promotional opportunities or of a potential loss of income if access to acting NUM positions is denied. In my view these claims are more speculative than real. While Ms Mattner identified the potential amount of income foregone if she did not access shifts as an acting NUM, and while she suggested in her evidence that she had previously occupied the acting NUM role, she did not provide evidence about when the acting up occurred and for how long. There was no evidence adduced to the effect that she acted in the NUM role during the period of time relevant to the proceedings.   

 

  1. [107]
    I am not satisfied that the placement of Ms Mattner at Ipswich Hospital should be considered adverse action. Ipswich Hospital was one of a number of facilities managed by the West Moreton Hospital and Health Service. Ms Mattner was a professional nurse and her clinical care role in the outpatients department at the Ipswich Hospital does not present as an inferior workplace setting. I accept that differences in the regulatory, administrative and clinical arrangements may be encountered, but the differences in my view are not differences of substance or differences which inflict significant harm on Ms Mattner.

 

 The investigations

 

  1. [108]
    Ms Mattner was subject to two investigations. Both investigations had caused decisions to be made to suspend her and place her on alternative duties at Ipswich Hospital pursuant to s 137 of the PS Act. The first investigation (the pathology and VMO issues) was finalised some time in the first quarter of 2019, while the second investigation (the Verifact investigation) was suspended, initially with the consent of the respondents pending the outcome of applications for injunctions, and subsequently as a result of a decision of the Commission on 27 May 2019 which stayed the investigation pending the determination of the substantive proceedings.

 

  1. [109]
    The first investigation resulted from complaints made against Ms Mattner by a nurse practitioner, Ms Hesse, on 25 November 2018. The second investigation was a by-product of an external investigation which had been commissioned in October 2018 into the conduct and behaviour of Ms Reid. During staff interviews conducted by the investigator, some concerns had been raised about Ms Mattner's conduct and behaviour. At the end of the interview process, the concerns about Ms Mattner were collated and provided to the respondents in the form of a preliminary report. A file review of historical complaints involving Ms Mattner had also been completed and referred to the investigator.

 

  1. [110]
    On 19 December 2019, Ms Curtis determined to commence a disciplinary process against Ms Mattner in respect to the pathology and VMO issues, and on the same date put Ms Mattner on notice that allegations had been made about her during the Verifact process. On 31 January 2019, these allegations were formalised and Ms Mattner was asked to respond to the allegations.

 

Verifact investigation

 

  1. [111]
    In correspondence dated 31 October 2018, the health service appointed Verifact as a health service investigator pursuant to s 190(2) of the HHB. The powers of the health service investigator were said to include to access, copy or take extracts from relevant documents, including confidential information. Further, the investigator was obliged to make every reasonable effort to obtain information or documentation that is relevant.

 

  1. [112]
    The investigator was directed to interview persons that the investigator believed may have information relevant to the complaint and to request the health service to give reasonable and lawful directions to employees relating to the investigation. These directions included the maintenance of confidentiality and the provision of copies of documents in the employees' possession or control.

 

  1. [113]
    The correspondence also provided guidance relating to the interview of additional participants. Any person interviewed was to be provided the opportunity to nominate employees who they believe have relevant information, and to explain why they believe that the employee has information relevant to the investigation. Whether or not such employees are interviewed is subject to the discretion and approval of the Delegate.

 

  1. [114]
    While questions were raised by the applicant about the appropriateness of the respondent's decisions to use the Verifact process for purposes not originally contemplated, it has not seriously been asserted that the respondents acted unlawfully in expanding the interview list, in Ms Suarez's approach to interviews including her decision to allow interviewees to discuss matters not pertaining to Ms Reid, or arising from the direction to prepare a supplementary report about complaints made about Ms Mattner.

 

  1. [115]
    Ms Suarez interviewed 27 employees over a period commencing on 1 November 2018 and ending on 29 November 2018. As at 5 November 2019, Ms Suarez had interviewed 19 employees. Not all the witnesses who were initially scheduled for interview participated in an interview. On or about 9 November 2018, additional witnesses were nominated for interview by the health service.

 

  1. [116]
    On 23 November 2018, Ms Suarez reported to Ms Griffin, the health services human resources contact point for the investigation, that a number of employees interviewed on 22 November 2018 had complained about the conduct or behaviour of Ms Mattner. In response to this disclosure, the health service instructed Ms Suarez to allow this type of input without prompting future interviewees and, at the end of the process, to compile a report which summarised the complaints made.

 

  1. [117]
    On 22 November 2018, Ms Finley had emailed Ms Trayling and Ms Griffin with copies of complaints that had been made about the applicant. On 23 November 2018, Ms Trayling emailed Ms Griffin with a copy of complaints made by Ms Polmeer in relation to workplace incidents on 19 November 2018. On 29 November 2018, Ms Griffin provided Ms Suarez with copies of the complaints made about Ms Mattner.

 

  1. [118]
    Ms Suarez completed her work in relation to the complaints made against the applicant on 6 December 2018 and forwarded her report to Ms Prince on that day. Ms Prince said that when she received the report, she forwarded a copy of the report to Ms Curtis and Ms Giles. Ms Prince said that at the time, Ms Giles was acting in Ms Curtis' position while Ms Curtis was on annual leave. On Dr Henderson's evidence, she also received the Verifact report on 7 December 2018.

 

  1. [119]
    In the report, Verifact stated that it had completed its preliminary inquiries and provided a brief summary report in accordance with the health service's instruction. The report confirmed that 27 employees had been interviewed. The scope of the report was described as follows:

 

  • Interview up to 30 employees who have raised concerns regarding their manager.
  • As per verbal instructions from your office on 23 November 2018, also provide an outline of complaints raised against Tanja Mattner, Clinical Nurse.
  • Electronically record interviews and obtain transcripts.
  • Prepare a summary of concerns raised through interviews and collate as a brief report.

 

  1. [120]
    In her affidavit, Ms Suarez said that thirteen interviewees had made complaints relating to the conduct of Ms Mattner during the course of her investigation. As I understand the evidence, based on the transcript of interviews and on the material supplied by Ms Prince on 29 November 2018, Ms Suarez identified ten instances of inappropriate behaviour alleged to have been engaged in by Ms Mattner. These instances were set out in Verifact's 6 December 2018 report which stated that "there was evidence that Ms Mattner":

 

  1. (i)
    Used negative, aggressive, offensive, and bullying behaviour towards other staff.
  1. (ii)
     Used intimidation, offensive physical gestures and discriminative communication methods with staff.
  1. (iii)
     Demanded that matters be undertaken as per her specific instructions. Insisting staff work in accordance with her rules which at times undermined decisions made by Ms Reid.
  1. (iv)
     Stood over Ms Reid, or instigated campaigns against her, including grooming tactics and behaviours.
  1. (v)
     Forced her decision regarding patient care onto staff, which at times compromised patient safety. Refused patient care which at times extended outside her scope of practice.
  1. (vi)
     Aggressively overrode, questioned and undermined decisions of Nurse Practitioners and Doctors with regards to patient care/treatment and processes. Worked outside her scope of practice.
  1. (vii)
     Disregarded patient needs and prescribed care, particularly regarding prescribed medications, which included delaying treatment and/or changing medications. On numerous occasions doing so based on her opinion that the patient was diverting.
  1. (viii)
     Displayed a lack of empathy, care and attention to her duties and patients.
  1. (ix)
     Showed favouritism with regards to rostering.
  1. (x)
     Created a stressful workplace environment which resulted in low staff morale in her presence.

 

  1. [121]
    Dr Henderson said in her 24 April 2019 affidavit that after reading Ms Suarez's report she had serious concerns about the clinical implications and risks arising out of the allegations against Ms Mattner. Dr Henderson said that she was concerned that Ms Mattner may have been acting outside the scope of her practice and that Ms Mattner may be putting patients at risk.

 

  1. [122]
    In her 19 December 2018 correspondence, Ms Curtis informed Ms Mattner that she had received information which raised allegations about her workplace behaviour. Ms Curtis then advised Ms Mattner that because of the seriousness of the allegations, she had requested that the allegations be better particularised so that they can be put to Ms Mattner for her response. After this, Ms Curtis said that she would be "in a better position to consider if any further action, including disciplinary action, is necessary". Ms Mattner was advised by Ms Curtis that she was obliged to consider whether the allegations would require referral to the Crime and Corruption Commission or to the Office of the Health Ombudsman.

 

  1. [123]
    Ms Mattner was also informed by Ms Curtis that she believed, pursuant to s 137 of the PS Act, there were grounds to suspend the applicant from duties and place her on alternative duties at Ipswich Hospital.

 

  1. [124]
    On 30 January 2019, Ms Suarez emailed Ms Mattner and informed her that she had been instructed by the first respondent to conduct an investigation into particular allegations that had been made against her. Correspondence attached to the email set out the allegations and invited Ms Mattner to respond to the allegations in a formal interview which was scheduled for 13 February 2019. The following seven allegations were set out in the correspondence:

 

  1. (i)
     You used offensive, intimidating, aggressive and bullying styled gestures and communication methods towards other staff.
  1. (ii)
     You demanded that matters be undertaken as per your specific instructions, in accordance with your rules, which at times undermined decisions made by Lorraine Reid.
  1. (iii)
     You stood over Lorraine Reid, or instigated campaigns against her, which displayed grooming styled tactics and behaviours.
  1. (iv)
     You enforced your decision regarding patient care onto staff, which at times compromised patient safety.
  1. (v)
     You aggressively overrode, questioned, refused and/or undermined decisions of Nurse Practitioners and General Practitioners with regards to patient care/treatment and processes; which was working outside your scope of practice.
  1. (vi)
     You showed favouritism with regards to rostering.
  1. (vii)
     You created a stressful work environment which resulted in low staff morale.

 

  1. [125]
    On my understanding, the interview scheduled for 13 February 2019 did not eventuate and Ms Mattner has yet to respond to the allegations. In her evidence, Ms Prince confirmed, by reference to Exhibit 17, that after Ms Mattner had responded to the allegations brought against her, the Verifact investigator would consider the relevant evidence and provide a written report including findings of fact in relation to particular conduct and behaviour.

 

  1. [126]
    On 18 February 2019, Verifact was appointed by the health service as a health service investigator for the purpose of investigating allegations made against Ms Mattner.

 

Pathology and VMO investigation

 

  1. [127]
    At 3.02 pm on Sunday 25 November, 2018, Ms Hesse emailed Ms Dwyer, Ms Bradley and Ms Finley and said that she had witnessed Ms Mattner tearing up a pathology slip (Annexure MF-1 to Ms Finley's affidavit). In a subsequent email to Ms Finley at 7.00 pm that same day, Ms Hesse complained that Ms Mattner had not entered names in the Visiting Medical Officer (VMO) register as requested and had disparaged the use of the VMO triage process. Her evidence in the proceedings was recorded at T2-19:

 

What was that?---That Tanja had stated that she doesn’t believe in the triage categories and she doesn’t use them. So my concern from that was that the patients wouldn’t be seen at an appropriate – clinically appropriate time and that, previously there had been discussions with Tanja, where thing – people hadn’t been added to the VMO list.

 

  1. [128]
    Ms Finley responded to Ms Hesse's initial email at 4.11 pm on the same day. In her email, which was copied to Ms Dwyer, Ms Bradley, Ms Trayling and Ms Hair, she asked Ms Hesse to provide the pieces of pathology paper to her or Ms Bradley as soon as possible; asked whether Ms Hesse could determine who the pathology slip related to and for information about the request; asked if the pathology request could be rewritten; and asked Ms Hesse to prepare a file note of the incident.

 

  1. [129]
    At 11.18 am on Monday 26 November 2018, Ms Trayling in response emailed Ms Finley, Ms Bradley, Ms Koch, Ms Griffin and Ms Prince in the following terms:

 

Good Afternoon Marie

 

Thank you for sending this through. Please collect and put together what we can of the pathology prescription and perhaps take a copy of that (as together as possible) for the file. Due to the patient safety risk we could consider suspension but we are obliged to consider alternative options first pending further investigation of these matters. Marie, can you talk to Robyn Henderson about transferring Tanja out whilst we look into this and other pending matters (likely matters to come from investigation and matters raised by Anthony S). If there is an option for transfer out please let me know and we can make arrangements for correspondence.

 

  1. [130]
    Ms Trayling's communication discloses that the immediate consideration for HR on the receipt of another complaint about Ms Mattner was whether the risk to patient safety necessitated Ms Mattner's suspension. This advice was provided in a context where complaints had been made against Ms Mattner in the Verifact process and where there was knowledge of other complaints including the complaints of Mr Schoenwald.

 

  1. [131]
    It was Ms Hesse's evidence that she provided Ms Bradley and Ms Finley with the pieces of pathology paper on her next working day which was 29 November 2018. She said that after meeting with Ms Bradley and Ms Hesse, she completed the requested file note. The file note was emailed to Ms Finley, Ms Bradley, and Ms Dwyer at 9.28 am on 29 November 2018.

 

  1. [132]
    In her file note, Ms Hesse said that the pathology slip issue occurred at 9.45 am on 25 November 2018 and that the VMO issue occurred at 2.05 pm on 25 November 2018. In terms of the VMO issue, Ms Hesse initially expressed concern that Ms Mattner would not comply with her request and directly enter names into the VMO spreadsheet. Ms Hesse said that there had previously been discussions with Ms Mattner about patients not being added to the VMO list, and that she was concerned that Ms Mattner's practice might lead to patients not being seen at clinically appropriate times. This concern motivated her to check whether the names that she asked to be added to the VMO list had in fact been added. She said that when she checked some hours after her request was made, the names had not been included.

 

  1. [133]
    Ms Hesse said that after requesting Ms Mattner to enter names in the VMO register, a general discussion took place about the use of triage categories during which discussion Ms Mattner said that she does not use the triage categories. Ms Hesse said that both herself and Ms Polmeer held similar concerns about patients not being seen in accordance with their triage categories and that both herself and Ms Polmeer stated that the categories were to be used on all referrals to the VMO. As I understood the file note, there was an open disagreement between Ms Mattner and Ms Hesse and Ms Polmeer over this issue.

 

  1. [134]
    When Ms Finley received the file note from Ms Hesse, she immediately forwarded a copy of the file note to Ms Prince and Ms Koch. In this email, Ms Finley told Ms Prince that she had alerted Dr Henderson to the issue and that she would meet with Ms Prince to discuss the matter. Soon thereafter at 11.08 am, Ms Prince emailed (Annexure MF-2 to Ms Finley's affidavit) Ms Finley, Dr Henderson, Ms Griffin, Ms Koch and Ms Trayling with her advice. The advice was subsequently passed on to Ms Curtis by Ms Finley. In her advice Ms Prince said inter alia:

 

Thank you for your information about an incident on 25 October (sic) 2018 regarding Ms Tanya Mattner, Clinical Nurse.

 

I further note that practice issues have recently been raised with Ms Mattner and include:

 

  • a reminder dated 3 August 2018, to Ms Mattner from yourself reminding her of her scope of practice as a nurse.
  • an incident on 13 October 2018, whereby Ms Mattner failed to refer a patient to the PAH for review after being advised to do so by the Nurse Practitioner. This issue was addressed with Ms Mattner by Ms Evelyn Dwyer and Ms Mattner indicated it was an error of judgement.

 

Due to the significant patient safety issue raised in this most recent incident and in view of the recent history, it would be open to yourself and Bretine to consider whether Ms Matner should be suspended on pay while the matter is further investigated. Prior to making a decision about suspension, the Health Service is obliged to consider whether it could provide Ms Matner with alternative duties. An alternative position in Prison health is unlikely to be suitable as staff have increased autonomy in their decision making and there is insufficient supports available to monitor Ms Matner's practice.

 

 

As you are aware, the investigator has finalised interviews in relation to prison health concerns and we believe the report will be received no later than 10 December 2018. Any further interviews related to this matter will be negotiated after receipt of the report. The investigator has advised that there are some matters which have raised (sic) which relate to Ms Matner however we do not have details of this yet. Therefore I would not reference the investigation in your meeting with Ms Matner about the above issues. 

 

  1. [135]
    It is evident, at the very start of the respondents' consideration of the Hesse complaints, that the human resources response to the Hesse complaints was going to be significantly influenced by a broader and historical review of the applicant's conduct and behaviour. Ms Trayling had referred in her email to issues emerging from the Verifact investigation and from complaints made by Nurse Practitioner, Mr Schoenwald, while in her 30 November 2018 email, Ms Prince drew attention to practice issues occurring on 3 August 2018 and 13 October 2018.

 

  1. [136]
    The 13 October 2018 incident was not included in the bundle of documents sent by Ms Finley to Ms Prince on 22 November 2018. Rather, it had come to light on 29 November 2018 when Ms Bradley referred a file note to Ms Trayling and Ms Finley.[15] When Ms Bradley was asked during cross-examination why she elected to produce a file note on 29 November 2018 relating to an incident that had occurred in October 2018, she replied that she did not remember. While she also did not recall how she found the file note, she agreed that, that in order to retrieve the file, she would have been required to access the NUM drive and search for the note. She did not however specifically recall undertaking that exercise.

 

  1. [137]
    While Ms Bradley did not recall why she produced the file note, an email sent by Ms Prince to Dr Henderson on 30 November 2018 (Annexure RH-2 to Dr Henderson's 31 May 2018 affidavit) suggests that a discussion had taken place about whether practice and clinical care concerns would justify a decision under s 137 of the PS Act. That discussion had resulted in the identification of the two issues referenced in Ms Prince's 30 November 2018 email (Annexure MF-2 to Ms Finley's affidavit).  

 

  1. [138]
    On 30 November 2018, Ms Finley referred the complaints about Ms Mattner to Ms Curtis. Ms Curtis discussed the allegations with Ms Prince, Ms Trayling and Ms Griffin and subsequently spoke to Dr Henderson. It was Dr Henderson's advice that there was a significant clinical risk associated with the allegations and recommended that Ms Mattner be placed on alternative duties with more supervision.

 

  1. [139]
    Ms Mattner said in her 17 May 2019 affidavit that soon after commencing work on Monday 3 December 2018, and at around 6.50 am, she was directed by Ms Finley to meet with her to discuss an issue that had arisen and which required clarification. Ms Finley told her to finish work and said that she would not be resuming her duties that day. Ms Mattner immediately sought advice from the QNMU who told her that no official was available to attend the meeting with Ms Finley. When Ms Finley was advised of this, she instructed Ms Mattner to go home and not to resume work.

 

  1. [140]
    Dr Henderson said that Ms Finley had informed her on 3 December 2018 that a meeting with Ms Mattner would not take place because Ms Mattner could not obtain union representation. Later in the day, Dr Henderson was involved in a teleconference with Ms Prince, Ms Trayling and Ms Koch. A diary note of the teleconference is in the evidence as annexure RH-3 to the affidavit of Dr Henderson dated 31 May 2019. In her evidence in the proceedings, Dr Henderson explained what she meant by a notation "insufficient information":

 

Okay. And the top note is you’ve got insufficient information?---Yes.

 

About what?---About what is – so I think in my mind – we have insufficient information. So in terms again of natural justice; someone has made an allegation that someone’s torn up a pathology form but we don’t have – insufficient information to say that was real, do you know? So somebody has – so Tanja needed to be invited to a conversation to actually provide us with what happened. So  that’s what that insufficient information means.

 

Yes, and so that includes insufficient information as to whether she had, in fact, done it?---Yes, so we needed to have a talk - - -

 

Yes?--- - - - about and understand from her perspective what had happened.[16]

  1. [141]
    It appears that Ms Mattner was provided with an opportunity to provide her perspective at a meeting scheduled for 4 December 2018. In an email to the applicant at 4.45 pm on 3 December 2018, Dr Henderson informed the applicant that correspondence from the health service was attached and said that "we will meet to discuss this further tomorrow at 9.30 am". The correspondence attached to the email had been drafted by Ms Prince and reviewed by Dr Henderson before its signature by Ms Giles. In her affidavit, Ms Chase said that she spoke to Dr Henderson on the phone late in the afternoon of 3 December 2018. She said that Dr Henderson told her that a purpose of the 4 December 2018 meeting was for Dr Henderson to get to the bottom of what had happened that caused the stand down of the applicant.

 

  1. [142]
    In the correspondence forwarded to Ms Mattner and the QNMU on 3 December 2018, Ms Giles informed Ms Mattner that the allegations related to incidents in which she allegedly tore up a patient's pathology form; refused to add four patients to the VMO spreadsheet; and indicated that she did not use the triage category procedure. The correspondence stated that Ms Mattner was to be temporarily transferred to another work location and that:

 

You will remain in the temporary position until further enquiries can be made into the allegations and the outcome of those enquiries have been considered, or unless otherwise determined. Please note you will be given an opportunity to provide a response on all of the information gathered by the Health Service in relation to the matter.

 

  1. [143]
    The meeting held the following morning was attended by Ms Mattner, Ms Chase (QNMU Industrial Officer), Dr Henderson, Ms Finley for part of the meeting, Ms Trayling and Ms Prince. Ms Mattner said in her 17 May 2019 affidavit that in the meeting the QNMU requested that she be returned to work and that her line manager should be asked to discuss the allegations with her. The only account included in Ms Henderson's affidavit was that Ms Chase berated the health service and claimed that the health service had taken adverse action against the applicant. Ms Chase said in her affidavit that she suggested to Dr Henderson and the HR representatives that the appropriate course of action was to ask Ms Mattner's line manager to speak informally to Ms Mattner to determine if the allegations had any substance. Neither Ms Trayling nor Ms Prince dealt with the meeting in their affidavits.

 

  1. [144]
    On 5 December 2018, Ms Giles emailed Ms Chase (Annexure 3 to the affidavit of Ms Mattner dated 17 May 2019) and confirmed the decision to "to temporarily transfer" Ms Mattner to alternative duties. Ms Giles said that as there were no suitable alternative duties for Ms Mattner at "The Park or other correctional centres", she was to be temporarily transferred to Ipswich Hospital. She said that in order to ensure no financial disadvantage, Ms Mattner would continue to be rostered at Wolston Correctional Centre and paid in accordance with that roster. Ms Giles also said:

 

To be clear, the Health Service does not consider that Ms Mattner should be suspended at this time as the patient safety risks identified in the allegations can be managed by temporarily removing her from the correctional setting into a more supervised environment. We undertake to expedite our enquiries into the concerns raised so that all relevant information can be presented to Ms Mattner for her response and so that these concerns can be resolved as quickly as possible. The temporary transfer into alternative duties will be regularly reviewed to ensure it remains necessary.

 

  1. [145]
    In the 5 December 2018 email, Ms Giles also responded to a QNMU request that the issue be resolved informally in a meeting with Ms Mattner and the QNMU. In the email Ms Giles said:

 

Thank you for meeting with Robyn Henderson, Suzanna Trayling, Yvonne Prince and Marie Finley yesterday to discuss the temporary transfer of Ms Tanya Mattner while enquiries are undertaken in relation to concerns raised about her clinical practice. I have been briefed on the meeting and as per the discussion, I have consulted with Ms Finley to discuss whether the matter can be resolved by way of an informal meeting with the QNMU and Ms Mattner. After careful consideration of the issues, we have decided to confirm the decision to temporarily transfer Ms Mattner into alternative duties.

 

  1. [146]
    On 6 December 2018, Ms Giles wrote to the QNMU and confirmed that the decisions that she had taken were taken pursuant to s 137 of the PS Act. Ms Giles' correspondence included the following:

 

Section 137(1) requires me to have the reasonable belief that the proper and efficient management of the West Moreton Health Service (the Health Service) would be prejudiced. In my view, given the nature of the allegations against Ms Mattner, and significant risk to patient safety, it is reasonable and appropriate that she does not remain in her substantive position at this time.

 

  1. [147]
    In an email to Ms Mattner on 11 December 2018, Ms Curtis noted that Ms Mattner had refused to commence alternative duties and informed Ms Mattner that directions given by Ms Giles on 3 December 2018 and 5 December 2018 constituted lawful directions and that if she did not attend the alternative duties, she would not be paid. Ms Mattner was also told that her failure to comply with a lawful and reasonable direction could result in disciplinary action.

 

  1. [148]
    Email exchanges entered into the evidence as Exhibit 11 disclose that on or about 13 December 2018, Ms Prince raised the possibility that the pathology form allegation might be false. After being provided with particular information by Ms Bradley, and having reviewed progress notes which revealed that "attempts were made to take the required bloods for pathology", Ms Prince asked Ms Bradley whether the information in the progress notes "have justified why the pathology form was ripped up on 25/11".

 

  1. [149]
    Ms Prince followed up this email with an email to Ms Curtis in which she referred to her exchange with Ms Bradley and said to Ms Curtis that the question for her was "whether any of this information changes your view" that the applicant still needs to be "out of WCC and in alternative duties". Ms Prince then stated:

 

I think Robyn has a viewpoint which is clear but you would need to consider it as well. If you think she could be returned to her role without risk to patient safety then we could lift the alternative duties and continue to deal with the matter as per the show cause or meeting whichever you decide on.

 

We would then be reimposing the alternative duties in relation to Matter 2 (the investigation report – if you agree after reading it).

 

  1. [150]
    Ultimately, the health service decided not to change course and the allegations against Ms Mattner were formalised on 19 December 2019. In a show cause letter of that date, Ms Curtis said that she was of the view that Ms Mattner may be liable for disciplinary action pursuant to sections 187 and 188 of the PS Act. The applicant was asked to show cause why disciplinary action should not be taken against her in respect to two allegations:

 

Allegation One:

 

On 25 November 2018, you, without reasonable excuse, destroyed a pathology request form for patient B12019.

 

Allegation Two:

 

On 25 November 2018, you failed to add patient names to the Visiting Medical Officer (VMO) triaging spreadsheet for another staff member. You also made comments that indicate you don't agree with the triage process and/or don’t use triage categories.

 

  1. [151]
    Ms Mattner was informed that, "in accordance with the principles of natural justice, no determination of your liability has been made or will be made in relation to the allegations until you have had the opportunity to respond". Both the QNMU and Ms Mattner provided responses to the show cause notice on 21 January 2019.
  2. [152]
    It is not in dispute that by the end of the proceedings the investigation into the pathology slip issue had been completed and that the allegations made against Ms Mattner had been found to have been unsubstantiated.

 

Did the decisions to commence investigations constitute adverse action?

 

  1. [153]
    Two investigations into the conduct and behaviour of Ms Mattner were commenced by the respondents. The pathology slip and VMO allegations resulted in a show cause disciplinary process being commenced. This process has now concluded, and the allegations made against Ms Mattner have been found to be unsubstantiated. The Part B Verifact investigation into complaints made about the applicant had progressed to the stage where Ms Mattner has been asked to respond to seven allegations levelled against her. This investigation has been suspended pending the outcome of these proceedings and Ms Mattner had not yet responded to the allegations.

 

  1. [154]
    The respondent submitted that, as a consequence of the investigations, no findings had been made that could cause any injury to Ms Mattner and she had not been prejudiced by her temporary transfer to Ipswich. The pathology slip and VMO investigation had concluded and no finding adverse to Ms Mattner had been made. Under the terms applicable to the Ipswich placement, Ms Mattner would not suffer any detriment in that she remained employed, was to perform meaningful and useful work, and would continue to be remunerated on the same terms as she was at Wolston. No findings of fact had been made in the Verifact investigation, and no finding that Ms Mattner was liable for discipline had been entered.

 

  1. [155]
    The applicant submitted that, on the authorities, an investigation can constitute adverse action by prejudicial alteration of position. An investigation brought in good faith and carried out properly can constitute adverse action where it threatens the possibility of dismissal because it operates to reduce the security of future employment of the applicant. It was submitted that both of the investigations or processes commenced by the respondents went beyond an investigative stage and had put the applicant "in a real battle to defend her career and her livelihood".

 

  1. [156]
    The authorities were reviewed by Justice Murphy in Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd.[17] Justice Murphy said that the authorities indicate:

 

… that a properly conducted investigation brought in good faith may nevertheless give rise to a deterioration in the employment advantages enjoyed by an employee, thereby constituting adverse action.

 

  1. [157]
    In Kimpton v Minister for Education of Victoria,[18] North J observed that he did "not regard it as hopeless or untenable to contend that the requirement to participate in the investigatory process may amount to a relevant injury or prejudicial alteration".

 

  1. [158]
    In Jones v Queensland Tertiary Admissions Centre Ltd (No 2)[19] Collier J observed:

It follows that, on these authorities, commencement of an investigation by an employer into conduct of an employee can in certain circumstances constitute adverse action against that employee for the purposes of s 342, either as injury or alteration of the position of the employee.[20]

 

  1. [159]
    In Police Federation of Australia v Nixon,[21] Ryan J concluded that a disciplinary process "before the laying of the charge" should not be considered adverse action:

 

… amenability to a disciplinary charge brought in good faith and on a proper prima facie evidentiary basis is a normal incident of employment and does not of itself, before the laying of the charge, constitute an adverse affection of, or deterioration in, the advantages enjoyed by the employee" in the sense used by the High Court in the passage from Patrick Stevedores …

 

  1. [160]
    In Community and Public Sector Union and Another v Telstra Corporation (CPSU v Telstra),[22] the Full Court had noted that the majority in Patrick Stevedores accepted that reduced security in future employment fell within the definition of adverse action:

 

[17] The question is whether, by sending the e-mail to its recipients, Telstra had altered the position of any of its employees to the employee’s prejudice within the meaning of s 298K(1)(c).  In Patrick Stevedores (CLR at 18) the majority of the High Court held that the sub-section covers "not only legal injury but any adverse affection of, or deterioration in, the advantages enjoyed by the employee before the conduct in question".  The majority also observed (at 20) that the reorganisation of companies within the Patrick Group resulted in the security of the employer companies’ businesses being "extremely tenuous" with the "security of the employees’ employment [being] consequentially altered to their prejudice".  The reorganisation did not directly affect or alter any legal rights or obligations of the employees but it left their future employment less secure.  Although this issue was not in dispute, the majority appears to have had no difficulty in accepting reduced security of future employment as falling within s 298K(1)(c) because it brought about an adverse affection of, or a deterioration in, the advantages enjoyed by the employees before the reorganisation.

 

[18] Where the alteration of position is alleged to be indirect or consequential, as in Patrick Stevedores and in the present case, a difficult question may arise as to whether a prejudicial alteration of position has in fact occurred.  Answering that question may involve questions of degree.  It is sufficient for present purposes to say that if the prejudicial alteration is real and substantial, rather than merely possible or hypothetical, it will answer the description in s 298K(1)(c).

 

  1. [161]
    It is relevant that the reduced security of employment at the centre of CPSU v Telstra, was the real prospect that some employees would lose their jobs:

 

[12] The offer of a voluntary redundancy, without more, has been held not to constitute a threat to cause injury to the employee’s position (Maritime Union of Australia v Geraldton Port Authority (1999) 93 FCR 34 at 73).  However, in the present case there was more.  Telstra’s implementation of "downsizing" exposed its employees to a prospect of redundancy that was not truly voluntary.  The process involved the selected employee accepting redundancy or redeployment, but if redeployment had been selected but was unavailable the employee was to be dismissed.  In those circumstances the selection of an employee for redundancy altered the employee’s position to his or her prejudice.

 

  1. [162]
    The applicant submitted that the term "prejudicial alteration of position" is to be given a wide meaning. The jurisprudence associated with the term as it appeared in Commonwealth legislation was explained by Evatt J in Wayne Douglas Blair v Australian Motor Industries Limited:[23]

 

The relevant history of s.9 of the Act (the precursor of s.5) is that since 1904 when the Act first came into operation sanctions have been provided against an employer who dismissed an employee in certain proscribed circumstances. In 1909 (s.2 of Act No.28 of 1909) the phrase "or injure him in his employment" was inserted whilst in 1914 (s.2 of Act No.18 of 1914) the phrase "or alter his position to his prejudice" was added. It is clear in my view that the words were added to the section to overcome a situation in which an employer did something short of dismissing an employee but which was something which could be said to be harmful to him in his employment.

 

  1. [163]
    What "something short of" dismissal might be understood to mean is informed by the discussion in Visy about whether a "warning" or a "suspension" could constitute adverse action. In terms of "suspension", Murphy J agreed with the observations of Ryan J in Police Federation v Nixon where it was stated that the term "alteration" for the purpose of adverse action required substantive change, and that "suspension from duties" constituted such substantive change. In Visy, Justice Murphy concluded that "the removal of an employee from their employment against his or her will, even temporarily, will usually be adverse to their interests". However, the facts and circumstances in Visy are distinguished from the subject proceedings in that:

 

  • The employer's policy provided that suspension was only to be utilised in cases of serious misconduct warranting consideration of summary dismissal; and
  • The worker was provided with a letter of suspension which advised that he was at risk of summary dismissal;
  • The worker was suspended at home and not placed on alternative duties. 

 

  1. [164]
    Justice Murphy also gave consideration to whether a "warning" could constitute adverse action. In this regard, he endorsed the observations of Branson J in Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd[24]  (Coal and Allied Operations) who concluded in effect that if a warning could lead to termination, it may constitute adverse action:

I accept the contention of the applicant that the issuing to an employee of a "written warning" of a "serious or major breach" within the meaning of the document "Disciplinary Procedure" has the effect of making the employee’s continuing employment less secure. Conduct engaged in by an employee who has received such a warning could lead to the termination of his or her employment although the same conduct engaged in by an employee who had not received a warning would not lead to the termination of that employee’s employment.

 

  1. [165]
    I have a reservation about any unequivocal proposition that a warning can constitute adverse action. It seems to me that if a warning results from an investigation commenced in good faith, and if, as typically is the case, the warning puts the employee on notice that any further transgression may lead to a loss of job, such a set of circumstances should not produce a finding of adverse action. If an employee, despite being given the opportunity to correct inappropriate behaviour, transgresses again and brings the termination of employment into play, it is the employee's action and not the employer's action that has reduced their security of employment and put their continuing employment at risk. In these circumstances, the delivery of a warning intended to correct behaviour, and which only brings the prospects of termination into play when the employee offends again, could not be an action taken by the employer amounting to adverse action.

 

  1. [166]
    In Blair v Australian Motor Industries Limited, Evatt J concluded that the facts in that matter did not support a finding that the giving of the "first warning" to an employee was either an injury to him in his employment or an alteration of his position to his prejudice within the meaning of the Commonwealth Act:

 

In regard to the questions whether there was an injury or an alteration of Mr Bicknell's position to his prejudice; in my view his legal rights were the same after the warning as they were before the warning. His contract of employment remained the same; his job was the same; his wages were the same; his duties and responsibilities were the same; his status was the same; his position was the same and there was no "deprivation of any immediate practical incidents of his employment". The prosecutor argues that the warning meant that Mr Bicknell was one step closer to possible dismissal in the future and that this effectively meant that immediately after the warning Mr Bicknell had been injured in his employment or his position had been altered to his prejudice. This argument is rejected. Whatever may be the meaning of the phrases "injure him in his employment or alter his position to his prejudice" in the opening words of s.5(1) of the Act, I am clearly of the view that a mere warning given in the circumstances referred to does not so injure or alter an employee's position to his prejudice.

 In Visy, Murphy J equated a reduction in the security of future employment with the term "threatens the possibility of dismissal":

 

It must be accepted that an investigation which threatens the possibility of dismissal, as in the present case, will operate to reduce the security of future employment of the employee concerned.  If it does so, CPSU v Telstra at 17 to 18 is authority for the proposition that it constitutes adverse action.

 

  1. [167]
    Murphy J used the expression about threatening dismissal in a factual context where the employee in question had been suspended in circumstances of suspected serious misconduct which may warrant summary dismissal and where the employee was informed in writing that he was at risk of summary dismissal.

 

  1. [168]
    It is clear that the authorities support a conclusion that the commencement of an investigation or the conduct of an investigation may constitute adverse action as defined in s 282 of the IR Act. Whether the investigation does constitute adverse action is a determination to be made having regard to the particular facts and circumstances of each case. This was evident in CPSU v Telstra, where it was said that the prejudicial alteration should be "real and substantial", not merely "possible or hypothetical", and in Patrick Stevedores, where in accepting that reduced security in future employment altered the position of the employee to his or her prejudice, the majority did so in a context where the employer's business was described as "extremely tenuous".

 

  1. [169]
    In this matter, absent the factor of suspension, the question is whether, in any substantial sense, Ms Mattner's position has been altered to her prejudice in the commencement of a show cause disciplinary process or in the launching of a Part B Verifact investigation. 

 

  1. [170]
    In respect to the 25 November 2018 Hesse allegations, Ms Mattner was informed on 19 December 2018 that the health service was of the view that Ms Mattner may be liable to disciplinary action and she was asked to show cause why she should not be held to be liable to be disciplined. Ms Mattner was also informed that no determination about her liability had been made, or would be made, until such time as she responded to the allegations. Subsequently, Ms Mattner responded to the allegations and the allegations were held to be unsubstantiated.

 

  1. [171]
    If the suspension of the applicant on 3 December 2018 was to be considered a factor, it is relevant that a suspension under s 137 is not deemed to be disciplinary action; the applicant was assured that she would not suffer any loss of remuneration; that the issues in question would be resolved expeditiously; and that the transfer was only a temporary measure.

 

  1. [172]
    The applicant emphasised that the response to the 25 November 2018 Hesse allegations had culminated in the commencement of a disciplinary process. In the 19 December 2018 show cause correspondence, Ms Mattner was informed that she may be liable to discipline pursuant to s 187 of the PS Act. If found liable to discipline, Ms Mattner faced disciplinary action under s 188 of the PS Act, including termination of employment.

 

  1. [173]
    On the authorities, I am satisfied that the commencement of the disciplinary process on 19 December 2018 is evidence of "adverse action" as defined. It is not the outcome of the disciplinary process which is the determinative consideration, but whether the commencement of the disciplinary process has altered Ms Mattner's position to her prejudice.

 

  1. [174]
    The second set of allegations arising from, or related to, the Verifact process had not reached the same point on 19 December 2018 and it is doubtful that the 19 December 2018 communication could be characterised as an event which foreshadowed substantial change or where termination of employment could be seen to be on the horizon.

 

  1. [175]
    On 19 December 2018, Ms Mattner had been informed that a number of allegations had been made against her but that a view could not be concluded about whether "any further action, including disciplinary action" was necessary until the allegations were better particularised and put to Ms Mattner for response. Ms Mattner was also put on notice that her alleged conduct may require a referral to the CCC and the Health Ombudsman, and that she would be suspended and placed on alternative duties at Ipswich Hospital.

 

  1. [176]
    The better particularised allegations were put to Ms Mattner by Ms Suarez in correspondence dated 31 January 2019 where Ms Mattner was informed that Ms Suarez was investigating the allegations made against her and that she was to be given an opportunity to respond to the allegations. Ms Mattner was informed that "at the conclusion of inquiries a report outlining the allegation, evidence, findings and recommendations will be prepared for management consideration".

 

  1. [177]
    In circumstances where the suspension was not adverse action and where Ms Mattner has yet to respond to the allegations, it is arguable that Ms Mattner's position has been altered to her prejudice or that she has been harmed in her employment. Nothing has happened other than that some allegations have been made and Ms Mattner has been asked to respond to the allegations. There is no presumption that Ms Mattner may be liable for discipline and it would speculative to suggest that her security in employment has been reduced.

 

  1. [178]
    The applicant however submitted that, notwithstanding the particular stage that the investigation had reached, the process still had the effect of making Ms Mattner's employment more precarious. The applicant also considered that the factual scenario could be interpreted to allow a conclusion that the process went beyond a mere investigation and should be regarded as a disciplinary process with real threats of consequences including dismissal.

 

  1. [179]
    While I hold a significant reservation that the respondents' response to the Verifact related allegations, including the commencement of the Part B Verifact investigation, amounts to adverse action, I have decided to proceed on the premise that the response, including the particularising of allegations, can be construed as "adverse action".

 

Who made the decisions to take adverse action?

 

  1. [180]
    The decisions in question were the decisions to commence the Verifact Part B investigation; the decision to commence a show cause process in relation to the 25 November 2018 Hesse allegations; and the decisions to suspend and transfer Ms Mattner.

 

  1. [181]
    The relevant delegated decision-making authority was held by Ms Curtis and, in her absence for five working days, Ms Giles. Ms Finley said in her evidence that she did not have the authority to stand down or suspend the applicant.

 

  1. [182]
    Ms Giles was the delegated decision maker between 3 December 2018 and 7 December 2018 when Ms Curtis was on annual leave. Ms Giles signed the 3 December 2018 correspondence effectively suspending the applicant and placing her on alternate duties at Ipswich. Ms Curtis signed the correspondence dated 19 December 2018 which asked the applicant to show cause why she should not be liable for discipline in relation to two allegations which arose from the 25 November 2018 Hesse complaint. Ms Curtis also signed separate correspondence dated 19 December 2018 which informed the applicant that complaints had been made against her during the Verifact process and that, pursuant to s 137 of the PS Act, she was being suspended and placed on alternate duties at Ipswich.

 

  1. [183]
    It was Ms Giles' evidence that, before Ms Curtis went on leave, and on Friday 30 November 2018, Ms Curtis briefed her on developments associated with the suspension and transfer of Ms Mattner. Ms Curtis told Ms Giles that she thought that some action should be taken to move Ms Mattner out of Wolston.

 

  1. [184]
    It was Ms Giles' understanding at that point in time that Ms Curtis had received advice from both Ms Finley and Dr Henderson in respect of the matters in issue. The effect of Ms Giles' affidavit evidence was that in making her decision on 3 December 2018 to suspend and place the applicant on alternative duties, she relied on the briefing from Ms Curtis and on information and advice that had been provided by Ms Finley and Dr Henderson. Ms Giles also agreed that in her decision making there was a significant reliance on the advice provided by HR, and said that relevant correspondence signed by her, or emails despatched under her name, had been drafted by HR.

 

  1. [185]
    Dr Henderson said that she was the professional nursing lead for the health service. She said that Ms Finley informed her on 29 November 2018 that an allegation had been made that Ms Mattner had torn up a pathology slip. Dr Henderson said that, on receiving this notification, her main concern was for the safety of the patient and the status of the pathology.

 

  1. [186]
    In her 31 May 2019 affidavit, Dr Henderson said that on 30 November 2018 she received a "number of emails about how to manage the situation involving the torn up pathology slip and whether to stand Ms Mattner down from duty or to find her alternate duties". She said that on the same day, she had liaised with Ms Curtis "to confirm whether or not Ms Mattner should be stood down from duty". Included in the emails received on 30 November 2018 was an email from Ms Prince (Annexure RH-2 to the 31 May 2018 affidavit of Dr Henderson) which attached a Riskman entry and a file note dated 15 October 2018 and which included the following commentary: 

 

Here is the previous issue. I think there are enough concerns to move her until we get a response to the most recent issue. We will find out about any other matters on receipt of the investigation report next week.

 

  1. [187]
    Ms Curtis said in her 18 April 2019 affidavit that Ms Finley briefed her about the 25 November 2018 Hesse allegations on Friday 30 November 2018. On the same day, Ms Finley had passed on to Ms Curtis the emailed advice provided to her by Ms Prince. It is likely that there was no further relevant communications between Ms Finley and Ms Curtis after 30 November 2018 because either Ms Finley or Ms Curtis were on leave after that date.

 

  1. [188]
    Ms Curtis had also, on the same day, spoken to Ms Prince, Ms Trayling and Ms Griffin "about what had occurred and how to manage the situation". She said that she sought the advice of Dr Henderson in respect to nursing and clinical issues and that Dr Henderson had told her that the pathology slip issue was serious and that a significant level of clinical risk was associated with it. Dr Henderson recommended that Ms Mattner be placed on alternative duties with more supervision.

 

  1. [189]
    In terms of the Verifact allegations, it was Ms Curtis' evidence that she was provided with a copy of the Verifact report on 7 December 2018 and that she had been briefed on the report on 10 December 2018 by either Ms Prince or Ms Trayling when she returned from leave. In her 24 April 2018 affidavit, Ms Curtis said that, on 11 December 2018, she met with Ms Prince, Ms Trayling, Ms Bradley and Dr Henderson.

 

  1. [190]
    Ms Curtis said that at this meeting the Verifact report was discussed and consideration given to whether a Part B investigation was required. It was her recollection that Ms Prince, Ms Trayling and Ms Bradley provided most of the advice. She said that Ms Bradley provided advice on the operational implications arising from the Verifact allegations including any possible adverse impacts on the workforce. In her evidence, Ms Bradley said, in effect, that she gave advice in relation to staffing coverage if Ms Mattner did not work at Wolston and where Ms Mattner might perform her alternative duties (T2-68):

 

Well, what was the point you were making as far as you can recall?---From memory, we had a discussion about if Tanja was not in that workplace, what it would mean for the operations there, considering that it was short-staffed already, and that Lorry wasn’t there and I mean, we had looked at other centres, like other correctional centres, but I can’t remember beyond that what the discussion was.

 

  1. [191]
    Dr Henderson said, in her 24 April 2019 affidavit, that it is likely that she voiced her concerns about the Verifact report to Ms Curtis:

 

When I read the Verifact Report, I had serious concerns about the clinical implications and risks arising out of the allegations against Ms Mattner. I was specifically concerned that if the allegations were true Ms Mattner may have been acting outside the scope of her practice and putting patients at risk. It was my view that an investigation would allow these serious clinical issues to be properly and equitably investigated.

 

  1. [192]
    On the affidavits of both Ms Prince (24 April 2019) and Ms Trayling (17 May 2018), a further meeting involving Ms Prince, Ms Trayling and Ms Curtis took place on 14 December 2018. At paragraph 9 of her affidavit, Ms Prince said:

 

… in this meeting, Ms Trayling and I advised Ms Curtis about the correct manner in which the allegations in the Verifact Report should be managed. We also advised Ms Curtis of the option of a part B investigation and the pros and cons of conducting a Part B investigation either internally or externally. We advised that an external investigation would be quicker and independent given the investigator was already across the material having conducted the Part A investigation.

 

  1. [193]
    In her affidavit, Ms Trayling said that Ms Curtis was advised that the Verifact Report informed management "about the employee experience at Wolston Correctional Centre" and that a better understanding of those issues was needed. Ms Prince also stated in her affidavit that the recommendations that she made to Ms Curtis about the Part B Verifact Investigation were made "on the basis of the evidence available to me in the Verifact Report and after receiving clinical advice from Dr Henderson".

 

  1. [194]
    Ms Curtis said that she had determined that it was appropriate that the allegations be fully investigated and a report prepared. She said that the Part B investigation was not disciplinary action, nor was it purported to be disciplinary action. She said that the purpose of the investigation was to get the applicant's response to the allegations presented to the applicant and to ask the investigator to make factual findings.

 

  1. [195]
    The effect of Ms Curtis' evidence was that, while she made the final decision, she made decisions in a collaborative manner after taking advice from Ms Prince, Ms Trayling, Ms Bradley and Dr Henderson.

 

  1. [196]
    Ms Curtis said that she made the decision to place the applicant on alternative duties after she had considered advice received from Dr Henderson, Ms Finley and Ms Bradley. She said that from 10 December 2018 to 31 December 2018, Ms Finley was on leave and Ms Bradley was acting in Ms Finley's position. Ms Curtis said that during this period she sought advice from Ms Bradley in relation to the Hesse allegations and that Ms Bradley had advised her that the concerns were serious enough to progress to the show cause stage.

 

  1. [197]
    In terms of the show cause notice issued on 19 December 2018 arising from the Verifact investigation, Ms Curtis said that none of her decision making was made in isolation and that she always sought advice from various stakeholders including professional and clinical advice from Dr Henderson.

 

  1. [198]
    The applicant's narrative around decision making was relatively straight forward. In the first instance the applicant submitted that a dispersed decision-making process was in play and that a number of persons had made contributions to the process. This meant that the Commission was required to examine the contributions made by each person who had a material effect on the ultimate decision.

 

  1. [199]
    The applicant did not accept that either Ms Giles or Ms Curtis could be characterised as the sole decision makers, and did not accept that either had made a material contribution to the decision making process.

 

  1. [200]
    The applicant dismissed Ms Giles' contribution as perfunctory and entirely reliant on the contributions of Ms Finley, Ms Curtis, Dr Henderson and HR. Ms Curtis' decision making was similarly characterised at least to the extent that it was entirely reliant on Ms Finley and Ms Bradley for the factual basis of the allegations made against Ms Mattner. The applicant said that neither Ms Curtis nor Ms Giles went beyond what was presented to them when it came to decision making.

 

  1. [201]
    The applicant also submitted that the contributions made by Dr Henderson and Ms Prince needed to be evaluated in a context where they also acted on a factual substratum provided by Ms Finley and Ms Bradley. The applicant did not accept that Ms Finley's contribution to the decision-making process relied on Ms Prince's advice, and maintained that Ms Prince did no more than give Ms Finley options in terms of a suitable response to the allegations. In the applicant's view, the HR advice was peripheral, and that Ms Finley was always going to select an option that facilitated the removal of Ms Mattner from Wolston. 

 

  1. [202]
    In the applicant's narrative, there was no place for any conclusion other than that Ms Finley, with Ms Bradley's assistance, controlled and manipulated the decision-making process.

 

  1. [203]
    The effect of this narrative was that Ms Curtis, Dr Henderson, Ms Prince and Ms Trayling were mere bystanders, and to the extent that they did have a contribution to make to the decision-making process, it was a contribution which was flawed in that it relied in its formulation on information provided by either Ms Finley or Ms Bradley which misrepresented the true state of affairs.

 

  1. [204]
    While I accept that if Ms Bradley and Ms Finley were motivated by improper reasons, they would have been more likely to have favoured or encouraged a punitive response to both the Verifact complaints and the 25 November 2018 Hesse complaints, in the prevailing collaborative decision-making process such advocacy, in my view, would have needed to be supported by, or consistent with, the underlying factual matrix. This is, however, where the applicant's narrative stumbles because the underlying factual matrix (summarised below) supports the decisions taken by all the decision makers and is consistent with any decision taken by Ms Finley or Ms Bradley to support the taking of adverse action:

 

  • On 22 November 2018, a number of complaints made against Ms Mattner over the preceding two months were referred to HR for evaluation and advice;
  • On 23 November 2018, Ms Suarez briefed HR on complaints made about Ms Mattner during the Verifact interviews;
  • On 25 November 2018, Ms Hesse emailed Ms Finley with complaints about Ms Mattner. Ms Finley immediately referred the complaint to HR;
  • On 26 November 2018, Ms Trayling in HR responded to Ms Finley and provided an advice geared around the probability of suspension;
  • On 29 November 2018, Ms Hesse prepared a file note in relation to the matters raised on 25 November 2018;
  • On 30 November 2018, Ms Prince provided advice to Ms Finley and others in relation to the response to the allegations made against Ms Mattner;
  • On 6 December 2018, Ms Suarez provided her report summarising the complaints made against Ms Mattner.

 

  1. [205]
    The following can be concluded from the factual matrix:

 

  • It was logical, sensible and consistent with the arrangement reached with Ms Prince on 22 November 2018 for Ms Finley to immediately refer the Hesse complaint to HR;
  • HR assessed the Hesse complaint in the context of Ms Mattner's complaint history;
  • HR's immediate view included consideration of suspension as the most appropriate response;
  • Ms Trayling's 26 November 2018 advice and Ms Prince's 30 November 2018 advice was pivotal and shaping the course of the respondents decision making.

 

  1. [206]
    Importantly, the factual matrix set out above is a matrix with which most, if not all, of the decision makers would have been familiar when making contributions to the decision-making process. All of the documentary evidence had been reviewed by Ms Trayling and Ms Prince, while on the evidence, both Ms Curtis and Ms Henderson had access to at least the 30 November 2018 advice from Ms Prince and the 6 December 2018 Verifact report. Additionally, in respect to the pathology slip issue, Ms Curtis said that she sought HR advice from Ms Prince, Ms Trayling and Ms Griffin and clinical advice from Dr Henderson. In terms of the Verifact report, Ms Curtis said that she had initially been briefed by Ms Prince and Ms Traying and had met separately with Ms Prince and Ms Trayling on 14 December 2018. The evidence supports a conclusion that it would have been unlikely that either Ms Bradley or Ms Finley could have misrepresented or otherwise distorted the factual matrix relevant to the decisions to take adverse action.

 

  1. [207]
    When it comes to the ascertainment of the reasons for why adverse action was taken, while the applicant challenged the veracity of the allegations made in the complaints against Ms Mattner and did not accept that the complaints warranted a disciplinary response, it did not challenge the credit of complainants other than in the case of Ms Hesse.

 

  1. [208]
    In this regard the applicant argued that Ms Hesse was not a witness of credit and that it was likely that she had colluded with Ms Finley and Ms Bradley to bring about the demise of Ms Mattner. The applicant regarded Ms Hesse's 25 November 2018 email as a concoction bearing little resemblance with the true facts. For my part, it is not necessary that I make any finding about the veracity of the complaint. I am satisfied however that the Hesse allegations were genuinely made, and that the respondents, in the context of Ms Mattner's complaints history, were entitled to treat the complaints as serious and to determine a commensurate response.

 

  1. [209]
    In my view the predominate basis for the decisions to take adverse action, including any decision taken on 3 December 2018, was the evidence associated with complaints made against Ms Mattner. While the applicant maintained that Ms Finley and Ms Bradley acted for improper reasons, there was no suggestion that the record of complaints was false or that the complaints had been fabricated. There was no challenge to Ms Suarez's evidence and no suggestion was made that she inaccurately compiled a summary of the complaints made against Ms Mattner in her 6 December 2018 report.

 

  1. [210]
    Once the complaint had been referred to HR, advice was immediately provided to the effect that, having regard to other complaints about Ms Mattner that had been recently reviewed by HR, and having regard to complaints which had emerged during the Verifact process, the suspension of Ms Mattner pursuant to s 137 of the PS Act was an option to be considered, if not the preferred option. When the decision to suspend was made, it was made by reference to a pattern of complaints including the most recent complaint made by Ms Hesse. This decision did not require any finding to be made in relation to the Hesse allegations and none were made, nor had any significant investigation into the Hesse complaints been commenced.  This state of affairs had been clearly communicated to the applicant and Ms Mattner on 3 December 2018 and 5 December 2018.

 

  1. [211]
    It is in this factual context that the applicant's preoccupation with the actions taken or not taken by Ms Bradley, Ms Finley and Ms Hesse, immediately after the complaints were received cannot be fruitful. In this regard, and in submissions, the applicant variously submitted that Ms Finley had without reason portrayed to others that the Hesse allegations had to be addressed with urgency; that she progressed the response to the allegations in a "rushed and shambolic" manner; that Ms Finley was not interested in processing the Hesse allegations in what the applicant called "the ordinary way"; that neither Ms Prince, Ms Curtis, Ms Giles, nor Dr Henderson had any material influence in the formulation of the response; that Ms Finley had no interest in options other than a removal from the Park; and that she ignored the possibility of alternative duties within the Park.

 

  1. [212]
    In my view, the decision-making process mainly turned on the HR advice. Ms Prince and Ms Trayling were clearly concerned with a pattern of behaviour which involved the neglect of patient care. This concern was initially driven by the complaints made by Ms Hesse on 4 October 2018, Mr Schoenwald on 9, 10 and 11 October 2018, Ms Polmeer on 19 November 2018, and by their understanding of the nature of the complaints that had emerged from the Verifact process. It was self-evident that HR considered that the pattern of unacceptable behaviour needed to be addressed and provided advice consistent with their concerns.

 

  1. [213]
    While an attack on the credit of Ms Finley and Ms Bradley was a central part of the applicant's narrative, in my view, that narrative is not consistent with the facts associated with the decision-making process where the influence of both Ms Finley and Ms Bradley has been significantly over-stated. Beyond the decision-making process itself, it is relevant that Ms Finley's annual leave commitments meant that her last involvement in the matters in issue was likely to have been 7 December 2018. In Ms Bradley's case, while she relieved Ms Dwyer in the week commencing 26 November 2018, she was not involved in matters in issue between 3 December 2018 and 9 December 2018. It is likely that, by the time that Ms Bradley began acting in Ms Finley's role on 10 December 2018, the die had been cast and the respondents' course of action substantively resolved.

 

  1. [214]
    In my view the evidence supports a finding that Ms Prince and Ms Trayling exercised a pivotal role in the decision-making process and that Dr Henderson had the predominant say in terms of whether patient safety was likely to be compromised if Ms Mattner were allowed to continue in her substantive role, and what alternative duties were suitable for allocation to Ms Mattner. Ms Curtis' active involvement in the decision-making process was self-evident on the evidence. It cannot follow that either Ms Finley or Ms Bradley exercised a disproportionate level of influence on the decision-making process and that it was more likely than not that once the Hesse complaint had been referred to HR, Ms Finley and Ms Bradley largely acted on HR's advice in determining their responses to the pathology slip complaint, or the 6 December 2018 Verifact report.

 

Respondent's knowledge of workplace rights or industrial activities

 

  1. [215]
    All of the respondents' witnesses including the respondents' decision makers denied that  Ms Mattner's membership of the QNMU, or her involvement in workplace issues including her participation in particular meetings, were factors taken into account in making decisions to commence investigations into Ms Mattner's conduct and behaviour, or in the related decisions to suspend Ms Mattner and place her on alternative duties at the Ipswich General Hospital.

 

  1. [216]
    In most instances the denials were based on a lack of knowledge of Ms Mattner's membership of the QNMU, of her involvement in the complaint against Ms Reid, her participation in a union branch meeting on 19 November 2018, or her participation in the Minister's meeting on 21 November 2018.

 

  1. [217]
    It is not in dispute that only Ms Koch, Ms Bradley and Ms Finley knew that the applicant had made the 8 October 2018 complaint. Ms Bradley and Ms Finley were the recipients of the email despatched by Ms Mattner on 8 October 2018, while Ms Koch said in her affidavit that she attended one of the staff meetings and that she understood that Ms Mattner was one of the staff members who had raised concerns about Ms Reid. While Dr Henderson had been informed by Ms Higgs that staff were upset, and while she had participated in one of the meetings called to discuss staff concerns, she said that she did not know that it was Ms Mattner who requested the meeting.

 

  1. [218]
    In terms of Ms Mattner's participation in industrial activities, all of the respondents who were alleged to have engaged in prohibited conduct gave evidence to the effect that they did not know that Ms Mattner had attended the union meeting on 19 November 2018, and did not know that she had attended the meeting with the Minister on 21 November 2018.

 

  1. [219]
    Some witnesses provided information additional to direct denials. Ms Bradley said that she was not aware that the applicant had attended union meetings or had been active in union business, until sometime in 2019. Ms Bradley also said that because she was a Nurse Unit Manager, which was a line management role, she was not invited to, or excluded from, particular QNMU meetings. Ms Finley said that she was not aware that Ms Mattner had attended particular union meetings nor was she aware that Ms Mattner had been vocal or outspoken about union activities.

 

  1. [220]
    Ms Prince said, in her 24 April 2019 affidavit, that she only became aware that Ms Mattner was a union member on or around 3 December 2018. Ms Trayling said, in her 24 April 2019 affidavit, that she had commenced in her then current role on 12 November 2019 and that, at the time that she commenced, she did not know Ms Mattner.  She said that she only became aware on 4 December 2018 that Ms Mattner was a member of the QNMU.
  2. [221]
    Dr Henderson said in her 24 April 2019 affidavit that she did not know that Ms Mattner was a union member until 3 December 2018 and that she only became aware on 23 April 2019 that Ms Mattner had been attending union meetings. Dr Henderson said that Ms Mattner had never attended any union meetings that she attended, nor to her knowledge, had Ms Mattner attended any of the Prison Health Services Nursing Consultative Forums.

 

  1. [222]
    The respondents argued that if the Commission accepted the respondents' evidence, particularly in circumstances where the respondents had not been challenged about the veracity of such assertions, that was the end of the matter.  That is, if a finding is entered to the effect that the respondents did not know that Ms Mattner attended the two meetings, then the respondents could not have been actuated by the attendances to take adverse action. As the respondents put it, "if you don’t know something, it can’t be something that motivates you to engage in particular conduct".

 

  1. [223]
    It was the applicant's case that a finding that at least Ms Finley and Ms Bradley knew about Ms Mattner's participation in the two meetings was able to be made on two grounds. Firstly, the evidence of very frequent interactions among Nurse Unit Managers and between Nurse Unit Managers and Ms Finley made it likely that Ms Finley and Ms Bradley would have known about what had transpired at the union branch meeting and the Minister's meeting. In particular, Acting Nurse Unit Manager Burton attended the union meeting and it is probable that she would have shared her knowledge of the union meeting with other NUM's. Secondly, findings of credit adverse to Ms Finley, Ms Bradley, Ms Hesse and Ms Dwyer would be a sufficient basis to doubt the veracity of their denials.

 

  1. [224]
    Ms Burton participated in the 19 November 2018 meeting and attempted or requested to attend the 21 November 2018 meeting with the Minister. She was however excluded from the Minister's meeting. The applicant proposed that an inference could be drawn from the evidence that it was probable that Ms Burton would have discussed what had transpired during the 19 November 2018 meeting with other nurse unit managers. The applicant said that there was ample evidence of a high degree of interaction between nurse unit managers and managers. It followed in the applicant's submission that Ms Bradley and Ms Finley would have known about what Ms Mattner had to say during the 19 November 2018 meeting. This conclusion was made more likely in the applicant's submission by Ms Burton's decision to email the QNMU after the 19 November 2018 meeting and complain about Ms Mattner's conduct.

 

  1. [225]
    While there is no evidence that Ms Burton had briefed either Ms Bradley or Ms Finley about what had transpired at the union meeting, intuitively I accept that it was possible that the information could have been passed on via indirect channels. What is less clear is when any information may have been passed on.  There was a very brief time window within which the information would have had to have been received by Ms Finley if the information were to be associated with her decision to refer complaints about Ms Mattner to HR on the morning of 22 November 2018.

 

  1. [226]
    In circumstances where Ms Burton did not give evidence in the proceedings, the inference proposed by the applicant can only be justified by reference to general propositions that there would have been ample opportunity for relevant information to be passed from Ms Burton to other nurse unit managers and to Ms Bradley and Ms Finley. The opportunities were identified as NUM huddles, normal workplace interactions, and a number of formal and regularly scheduled meetings. No evidence was given however about whether meetings were scheduled on 20 or 21 November 2018 and it is doubtful that an inference could permissibly be drawn from speculation that the information may have been communicated during daily workplace interactions or during NUM huddles or handovers on 20 or 21 November 2018.

 

  1. [227]
    There are reasons for why an inference should not be drawn. Operational dynamics including different shift work and rostering practices make communication more difficult. No evidence was adduced to the effect that Ms Burton was rostered to work on the two days in question. It is known that Ms Bradley was not engaged in a front-line role at the time but was acting in the role of service development manager for Prison Health Services. These arrangements may make it less likely that Ms Bradley would have been the conduit for the transfer of information from Ms Burton to Ms Finley. While Ms Finley liaised closely with nurse unit managers, it does not necessarily follow, given the scope of her role and responsibilities, that she accessed information in real time and it could be expected that delays would occur in the consumption of general non-urgent communications.

 

  1. [228]
    The evidence is not sufficiently robust to support a finding that Ms Finley knew before she met with Ms Prince on 22 November 2018 that Ms Mattner had attended a union meeting on 19 November 2018.

 

  1. [229]
    In terms of the Minister's meeting, there is no evidence from which I could infer that any of the respondents knew that Ms Mattner had attended the Minister's meeting. In this regard the evidence discloses that:

 

  • Ms Burton was excluded from the meeting and did not attend the meeting;
  • Ms Curtis, who was the only relevant manager or executive who attended at the Brisbane Correctional Centre for the Minister's visit, said that she did not know which staff attended the closed union meeting;
  • While the Minister's visit was taking place, a senior management meeting involving Ms Finley, Ms Dwyer and others was taking place;
  • While Ms Mattner suggested in her affidavit that management knew that she attended the meeting, I decline to attach significant weight to what remained as either hearsay or speculative affidavit evidence;
  • While Ms Finley had visibility of the "gate list" or list of external visitors such as QNMU officials, she had no visibility of the names of staff attending from the various correctional centres;
  • There was some confusion around the arrangements for the Minister's visit and the decision to include a meeting with staff appeared to be a relatively late change to the itinerary;
  • The applicant did not lead evidence revealing when the decision to hold the meeting with nurses was made; who decided which nurses were to be invited to attend or be eligible to participate; and how and when notice of the meeting was communicated;
  • Ms Mattner was rostered off on the day of the meeting and would not have been required to seek time off from work to attend the meeting. Further there was no evidence to the effect that she sought permission to attend at the Brisbane Correctional Centre on a non-working day. 

 

  1. [230]
    The email exchange between Dr Henderson and Ms Finley on 21 November 2018 does not include any discussion about, or interest in, which staff attended the Minister's meeting. Further, I accept Ms Finley's evidence that the matter of interest to management was whether the Minister was able to be persuaded to increase funding to the health service.

 

  1. [231]
    I am satisfied, on balance, that the respondents' decision makers did not know that Ms Mattner had attended union meetings on 19 November 2018 and 21 November 2018.

 

The reliability of the respondents' evidence

 

  1. [232]
    In Board of Bendigo Regional Institute of Technical and Further Education and Advancement v Barclay,[25] French CJ and Crennan J stated that:

 

The task of a court in a proceeding alleging a contravention of s 346 is to determine, on the balance of probabilities, why the employer took adverse action against the employee, and to ask whether it was for a prohibited reason or reasons which included a prohibited reason.  This appeal was concerned with identifying the correct approach to that task.[26]

 

  1. [233]
    In enunciating the principles relevant to "the correct approach" French CJ and Crennan J stated inter alia:

 

… The imposition of the statutory presumption in s 361, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains "why was the adverse action taken?".

 

This question is one of fact, which must be answered in the light of all the facts established in the proceeding. Generally, it will be extremely difficult to displace the statutory presumption in s 361 if no direct testimony is given by the decision-maker acting on behalf of the employer. Direct evidence of the reason why a decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker or because other objective facts are proven which contradict the decision-maker's evidence. However, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engage in industrial activity.[27]

 

  1. [234]
    French CJ and Crennan J further said that the Court's judgment in Bowling v General Motors-Holden Pty Ltd,[28] remained authoritative in relation to a number of propositions including the following:

 

It is a misunderstanding of, and contrary to, Bowling to require that the establishment of the reason for adverse action must be entirely dissociated from an employee's union position or activities. 

 

 

… The onus of proving that an employee's union position and activity was not an operative factor in taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence.

 

 

… it is appropriate for a decision-maker to give positive evidence comparing the position of the employee affected by the adverse action with that of an employee who has no union involvement.[29]

 

  1. [235]
    In their judgment in Barclay, Gummow and Hayne JJ noted that, in Bowling, Gibbs J accepted the "substantial and operative factor" criterion adopted by Mason J. Their Honours then referred to the following part of the decision of Gibbs J, and chose to add the emphasis shown:

 

The onus of proving that the fact that the employee held the position was not a substantial and operative factor in the dismissal is to be discharged according to the balance of probabilities and is not to be made heavier by any presumption that if an employee who is dismissed for disruptive activities happens to be a shop steward the latter circumstance must have had something to do with his dismissal.  If in the present case evidence had been given by the directors responsible that the employee was dismissed because he was guilty of misconduct or because his work was unsatisfactory, and that in dismissing him they were not influenced by the fact that he was a shop steward or indeed that he was dismissed in spite of that fact, and that evidence had been accepted, the onus would have been discharged.[30]

 

  1. [236]
    The conclusions of Gummow and Hayne JJ included the following:

 

In determining an application under s 346 the Federal Court was to assess whether the engagement of an employee in an industrial activity was a "substantial and operative factor" as to constitute a "reason", potentially amongst many reasons, for adverse action to be taken against that employee.  In assessing the evidence led to discharge the onus upon the employer under s 361(1), the reliability and weight of such evidence was to be balanced against evidence adduced by the employee and the overall facts and circumstances of each case; but it was the reasons of the decisionmaker at the time the adverse action was taken which was the focus of the inquiry.

 

Whilst it is true to say, as do the respondents, that there is a distinction between discharging the onus of proof and establishing that the reason for taking adverse action was not a proscribed reason, there is nothing to suggest that the conclusions drawn by the primary judge, and the findings and reasons upon which these were based, did not take this into consideration.  As Lander J concluded, if the reasons for the conclusions and the facts for which they were formulated are not challenged, then the contravention of s 346 cannot be made out.  This proposition should be accepted.  To hold otherwise would be to endorse the view that the imposition of an onus of proof on the employer under s 361(1) creates an irrebuttable presumption at law in favour of the employee.[31]

 

  1. [237]
    Care must be taken to consider all the evidence in the proceedings and significant determinations may turn on inferences justified on the evidence. As Smithers and Evatt JJ said in Bowling v General Motors-Holden Pty Ltd,[32] the reverse onus provision:

 

Proceeds upon the basis that the real reason for a dismissal may well be locked up in the employer's breast and impossible, or nearly impossible, of demonstration through ordinary forensic processes.

 

  1. [238]
    It was the applicant's case that particular facts and circumstances questioned the reliability of the respondent's assurances that the adverse action was not taken for a prohibited reason. Evidence of hostility towards the applicant and a motivation to injure and prejudice the applicant in employment was to be found in particular activities engaged in by particular individuals who made an indispensable contribution to the relevant decision making.

 

  1. [239]
    The applicant submitted that, prima facie, "highly unusual acts of Ms Finley and Ms Bradley in both the pathology slip issue and the Verifact issue call for a plausible explanation, but on the evidence, such plausible explanations were not provided". The applicant said that an analysis of the evidence supported acceptance of a circumstantial case that Ms Finley and Ms Bradley had taken action against the applicant for prohibited reasons.

 

  1. [240]
    Three developments were central to the applicant's submission. Firstly, Ms Bradley had dramatically altered the course of the Verifact investigation, and to the applicant's detriment, by unexpectedly adding staff members to the list of employees to be interviewed by the Verifact investigator, Ms Suarez.

 

  1. [241]
    Secondly, for improper reasons, Ms Finley had unexpectedly decided to gather up old complaints involving the applicant and to pass on these complaints to human resources. Importantly, this development came very soon after the 19 November 2018 union meeting and coincided with the interview by Verifact of staff members who Ms Finley knew would complain about the applicant.

 

  1. [242]
    Thirdly, Ms Finley's failure to respond in a timely and forensic manner to the Hesse allegations of 25 November 2018, disclosed a thought process in which Ms Finley opportunistically and maliciously used the allegations to remove the applicant from the workplace.

 

  1. [243]
    Beyond these central considerations, the applicant also argued that other decisions taken either by Ms Finley, Ms Bradley or others, demonstrated an intent to harm and prejudice Ms Mattner in her employment. On the evidence, the applicant submitted that these decisions could not be justified in ordinary circumstances, and could only be logically explained by a motivation on the part of the decision makers to harm Ms Mattner's interests. A list of all the factors put forward by the applicant are set out below:

 

  1. (a)
     Antipathy toward the QNMU demonstrated by a range of factors; 
  1. (b)
     Ms Bradley's decision to expand the Verifact witness list;
  1. (c)
     The timing of Ms Finley's decision to refer old complaints about the applicant to human resources and Verifact;
  1. (d)
     A excessively hasty and flawed response to Ms Hesse's pathology complaint in which immediate consideration was given to Ms Mattner's suspension and transfer before any attempt had been made to verify the allegations;
  1. (e)
     The decisions of Ms Finley and Ms Dwyer to direct staff including the applicant not to attend meetings at other correctional centres;
  1. (f)
     Ms Dwyer's failure to take responsibility for the resolution of complaints made by Ms Polmeer on 19 November 2018 and her unnecessary step of referring the complaints to Ms Finley, Ms Bradley and Ms Koch before commencing or completing any basic inquiry into the matters in issue;

 (g)  Ms Bradley's decision to introduce an old complaint on 29 November 2018.

 

  1. [244]
    Further, the applicant advanced significant attacks on the credit of a number of the respondent's witnesses. It was put that doubts around credit undermined the reliability of the evidence of these witnesses and suggested that their explanations for why adverse action was taken should not be accepted.

 

Ms Bradley's intervention

 

  1. [245]
    In its 31 October 2018 correspondence to Verifact, the health service had asked Verifact to interview up to thirty employees who had raised concerns about their manager. In the same correspondence the health service said that the investigator should interview twenty four employees and named the employees and included their classification. The correspondence allowed for additional interviews to be conducted in particular circumstances. Additions to the interview list were to be approved by the Delegate who was identified as the Executive Director, Mental Health and Specialised Services (Ms Curtis). Ms Griffin was nominated as the first point of contact for Verifact. When the interview stage ended on 29 November 2018, twenty seven employees had been interviewed by Ms Suarez.

 

  1. [246]
    Prior to the despatch of the 31 October 2018 correspondence, Jen Hair, a HR Advisor, had emailed the Verifact investigator, Ms Suarez, on 30 October 2018 and had provided her with an interview schedule. This schedule had provided for 20 employees to be interviewed at various times between 1 November 2018 and 5 November 2018. From this email exchange it appears that the production of the list was a human resources function and that there may not have been any operational input. Ms Koch, Ms Griffin and Ms Parfitt were copied into Ms Hair's email. Ms Koch was at the time a HR Business Partner, Ms Griffin a workplace relations adviser and Ms Parfitt a recruitment consultant.

 

  1. [247]
    In her affidavit dated 21 May 2019, Ms Koch said that she and Jen Hair "worked on compiling the list of employees" who would be interviewed by Verifact. She said that it "was intended that the views of all members of the team at Wolston Correctional Centre be canvassed in the investigation". The product of Ms Hair's and Ms Koch's work was the list of 24 witnesses which was provided to Verifact in the 31 October 2018 correspondence. This list included one nurse practitioner (Mr Schoenwald), one enrolled nurse, five clinical nurses and seventeen registered nurses.

 

  1. [248]
    Ms Suarez had completed 19 of the 24 requested interviews by 5 November 2018. While Ms Suarez explained that Ms Polmeer had cancelled her scheduled interview, she did not explain why other scheduled interviews were not rescheduled and were not conducted at all. The five employees who were included in the original list, but not interviewed, were:

 

  • Rachael Polmeer
  • Rachael Ashley-Butler
  • Sarah Ritter
  • Kate Gormley
  • Anthony Schoenwald

 

  1. [249]
    Ms Suarez said in her affidavit that between 6 November 2018 and 22 November 2018 she liaised with Ms Griffin "to arrange further witnesses". Consistent with this, Ms Koch said that on 9 November 2018 she had emailed Ms Griffin and informed her that the original scheduled interviews had been completed, but that Ms Bradley wanted further witnesses interviewed, viz:

 

  • Rachael Polmeer
  • Eileen Lawrence
  • Sarah Hesse
  • Paul Baker
  • Chris Wallis
  • Raquel How

 

  1. [250]
    Ms Bradley's decision to add to the interview list was made in circumstances where she was acting as Director of Operations, she or Ms Finley may not have had any involvement in the compilation of the original interview list, and where only nineteen out of a possible thirty employees had been interviewed by Verifact. Of the six employees added to the interview list, four employees were nurse practitioners, one was an administrative staff member who wanted to be interviewed, while the remaining employee, Ms Polmeer, was on the original list but required rescheduling. 

 

  1. [251]
    Ms Bradley's evidence was that she asked for additional staff to be interviewed because she "wanted the investigation to be more representative of the work environment at Wolston". In so far as the reference is to nurse practitioners, it is noted that only one nurse practitioner was included in the original list, and that nurse practitioner (Mr Schoenwald) did not participate in his scheduled interview. Consequently, nurse practitioner views would not be heard if Ms Bradley did not act to add names to the interview list.

 

  1. [252]
    Ms Bradley said that she thought it was appropriate to add nurse practitioners to the witness list "as the investigation concerned workplace issues at Wolston and while these employees were not permanently located at Wolston, they still had experience there and could provide further insight in the investigation". This evidence is best understood in conjunction with the related evidence given by Ms Koch.

 

  1. [253]
    Ms Koch said in her affidavit that it was her understanding that the original list of 24 witnesses "would have been retrieved from the HR system under the Wolston Correctional Centre organisational unit". She said that the nurse practitioners and Ms Lawrence "would have been listed under different organisational units which is why they were not captured by the original list". It was her unchallenged evidence that "it was consistent with the original intent and scope of the investigation for these individuals to be included and therefore this request from Ms Bradley was not unusual or unreasonable".

 

  1. [254]
    Ms Polmeer had missed her scheduled interview on 2 November 2018. Ms Bradley said that she did not know of any disaffection between Ms Polmeer and Ms Mattner. This evidence is consistent with the facts to the extent that Ms Polmeer did not commence work with the health service until July 2018 and would only have been supervised by Ms Bradley for about six weeks between September 2018 and 12 October 2018.

 

  1. [255]
    Ms Bradley said that she had included Ms Lawrence, who was part of the administrative cohort, on the interview list because Ms Lawrence had approached her and requested to be interviewed. Ms Bradley agreed during her evidence in the proceedings that she knew that Ms Lawrence was a friend of Ms Reid.

 

  1. [256]
    In terms of what had been disclosed about nurse practitioners in the evidence, Ms Hesse had made a prior complaint about Ms Mattner on 4 October 2018 and Ms Bradley agreed that she knew of the differences between Ms Hesse and Ms Mattner. Ms Finley said in her evidence that Ms How was a QNMU delegate who she had liaised with over the low priority task list.

 

  1. [257]
    The transcripts of interview of the four nurse practitioners added to the list by Ms Bradley are in the evidence as Exhibit 17. Mr Baker had been working at the Wolston Correctional Centre, on average, for two days per week since July 2017. He was very circumspect when addressing issues and any criticism of Ms Mattner was mainly directed at some interpersonal deficiencies in Ms Mattner's communication style.

 

  1. [258]
    While Ms How had worked previously as a nurse practitioner at Wolston Correctional Centre (WCC), since December 2015 she had worked at WCC approximately once every two months. She said however that she spent more time at WCC between 24 September 2018 and 7 October 2018. She mentioned that Mr Schoenwald worked predominantly at WCC. Ms How described three significant incidents that occurred in September 2018 involving Ms Mattner and which reflected adversely on Ms Mattner.

 

  1. [259]
    Mr Wallis worked at WCC on one day each week and occasionally across a weekend. He had been performing work at WCC across a ten year period. Mr Wallis expressed concern about Ms Mattner's performance over the last six months. Mr Wallis said however that his concerns were not derived from first hand knowledge but rather were derived from what he had been told by other nurse practitioners including Ms Hesse and Mr Shoenwald.

 

  1. [260]
    Ms Hesse said that up to the end of October 2018, she worked at WCC for three days a week. From the start of November 2018 she worked at WCC for one and a half or two days a week. Ms Hesse reported ongoing issues with Ms Mattner. In particular she described two incidents, one of which was the incident that she had complained about on 4 October 2018.

 

  1. [261]
    Two other additions had been made to the interview list, but not by Ms Bradley. Ms Suarez said in her affidavit that on 12 November 2018 she had received email confirmation from Ms Griffin of the remaining interviews to be conducted on 22 and 23 November 2018. She said that three of these interviewees were not available on 22 or 23 November 2018 and that their interviews were rescheduled to 29 November 2018. These interviewees included Mr Blair, a clinical nurse consultant, and Ms Kimlin, a diversional therapist, who were the new additions to the interview list. On Ms Suarez's evidence, the second round of interviews had been settled on 12 November 2018, however, in her affidavit, Ms Koch said that Ms Finley had asked her to add Mr Blair to the witness list on or around 20 November 2018. 

 

  1. [262]
    It was Ms Koch's understanding that Mr Blair had contacted Ms Finley and had asked that he be interviewed because he had relevant information to contribute. Ms Koch said that she believed the addition of Mr Blair to the witness list was consistent with the original intent and scope of the investigation and that she did not consider the request to include him in the process to be unusual or unreasonable.

 

  1. [263]
    Ms Kimlin had raised issues relevant to the investigation in her 10 October 2018 email to Ms Reid. It is not known who caused Ms Kimlin's name to be added to the witness list, and the only evidence relevant to the subject was that provided by Ms Suarez who intimated that Ms Kimlin was added to the list on or about 12 November 2018. This version is consistent with Ms Finley's suggestion that she may have referred Ms Kimlin's email to HR before she went on annual leave.

 

  1. [264]
    In submissions, the applicant raised the prospect that, in adding to the interview list, Ms Bradley may have been motivated by a desire to ensure that Ms Reid's interests were protected. The submission was that "this was the act of someone seeking to redress a perceived imbalance against Ms Reid and deflect attention to somebody else".

 

  1. [265]
    The evidence, in my view, does not point to a conclusion that Ms Bradley was motivated to protect Ms Reid at Ms Mattner's expense. There is no evidence that Ms Bradley was acting to protect Ms Reid's interests and that, in some way or other, Ms Mattner became collateral damage in Ms Bradley's endeavours. In introducing Ms How to the Verifact interview list, Ms Bradley introduced a very strong critic of Ms Reid's management and interpersonal style. Ms Lawrence was entitled to present her point of view and the transcript reveals that she declared a conflict of interest to Ms Suarez at the start of her interview.

 

  1. [266]
    That is not to say that Ms Bradley had an obligation to exclude from the interview list persons who may be known to support Ms Reid, or persons who held different views to those who had complained about Ms Reid. No fair investigation could proceed on the basis that only contributions adverse to Ms Reid were entitled to be heard. I accept however that this process has exposed divisions in the workplace and that some staff, including Ms Kimlin and Ms Lawrence, questioned Ms Mattner's motivation in making or supporting complaints against Ms Reid. There is nothing improper in allowing these divisions to be explored in the Verifact investigation.

 

  1. [267]
    The applicant went further however and submitted that in adding names to the interview list, Ms Bradley was consciously introducing persons to the process who she knew would complain about Ms Mattner. The applicant saw this as a form of manipulation of the Verifact process with the objective of diverting the process from its original purpose of investigating Ms Reid's conduct and behaviour, to a process preoccupied with hearing complaints about Ms Mattner and bringing Ms Mattner into disrepute. The suggestion that the Verifact process did not thoroughly investigate Ms Reid was not seriously pursued and is not supported by any evidence.

 

  1. [268]
    The applicant's main complaint however was that the interview list had been manipulated to harm Ms Mattner's interests because Ms Mattner had made a complaint on 8 October 2018. This improper purpose was said to be evident in an analysis of the transcripts of Verifact interviews which revealed that while persons interviewed on or before 5 November 2018 raised no significant complaint about Ms Mattner, all persons interviewed after this date had complained about Ms Mattner.

 

  1. [269]
    On Ms Suarez's evidence, thirteen out of twenty-seven interviewees made complaints about the conduct of Ms Mattner. Five out of nineteen interviewees had complained in interviews conducted on or before 5 November 2018. All of the interviewees interviewed after 5 November 2018 complained about Ms Mattner. While, in submissions, the applicant questioned whether Ms Suarez's calculations were accurate, Ms Suarez was not required for cross-examination and no challenge was raised to the accuracy of her evidence. 

 

  1. [270]
    While the applicant asked that particular inferences be drawn from the data analysis, I am cautious about interpreting the date in isolation of other considerations and in circumstances where innocent explanations may be available.

 

  1. [271]
    Firstly, the order of interviews might have, in its construction, prioritised the interview of that cohort of employees who it was believed had grievances about Ms Reid and were preoccupied with the articulation of these grievances. There was no evidence to this effect, but it may have occurred. Further, the timing of interviews was in some respect a matter of chance and a different order of interview may have produced different perspectives. For example, had Ms Polmeer and Mr Schoenwald been interviewed on their scheduled date of 1 November 2018 and had complained about Ms Mattner, the result would be that one-third of interviewees would have complained about Ms Mattner before 6 November 2018, making the inference sought to be drawn by the applicant more elusive.

 

  1. [272]
    Secondly, if the applicant were correct and none of the first 19 interviews included any complaint about Ms Mattner, nothing turns on this outcome unless Ms Bradley held that knowledge and then looked for ways to reverse the trend. In this regard there was no evidence that Ms Bradley knew what had been said in the interview process before 8 November 2018. In her evidence in the proceedings, she said that she did not know Ms Suarez, and that she had no contact with Ms Suarez during the course of the investigation. There was no evidence that either Ms Suarez or someone in human resources had briefed Ms Bradley between 1 November 2018 and 8 November 2018 about what had been reported by employees during the Verifact interviews.

 

  1. [273]
    Thirdly, while an inference may be drawn to the effect that Ms Bradley may have known or suspected that some of the persons who she added to the interview list might complain about Ms Mattner, it does not follow that Ms Bradley has acted for an improper reason. Rather, it was more likely that Ms Bradley acted because she knew that nurse practitioners held legitimate concerns about the conduct and behaviour of Ms Mattner, and in a context where she believed that the Verifact investigation included a consideration of all workplace conduct, and where no nurse practitioner was to be interviewed following Mr Schoenwald's withdrawal, she considered it appropriate to allow nurse practitioners to ventilate their concerns with Ms Suarez.

 

  1. [274]
    I do not accept the applicant's submission that Ms Bradley's decision to add to the interview list was causally connected with the fact that Ms Mattner had made a complaint on 8 October 2018.

 

  1. [275]
    There was no evidence of any animosity toward the applicant in the management response to the complaint which demonstrated some acknowledgement or acceptance of what Ms Higgs had conveyed when she made her representations to management.
  1. [276]
    Dr Henderson said that it was in early October 2018 that Ms Higgs raised the concerns. Very soon after that, and on 8 October 2018, the applicant had communicated her request to Ms Bradley. If staff complaints about Ms Reid were not considered to be genuine, it is unlikely that management would have responded as it did. There is no basis to conclude that Ms Mattner's involvement in the process was in any way unwelcomed.

 

  1. [277]
    Almost immediately after Ms Mattner's 8 October complaint, and by 10 October 2018, two meetings of staff had been convened by Ms Finley and Ms Bradley and Dr Henderson had elected to attend the second meeting and address that meeting. Either at the second meeting or soon thereafter, an external investigation into Ms Reid's conduct had been announced and around the same time, Ms Reid was removed from the workplace pending the completion of the investigation. At the meetings, Ms Mattner was not alone in complaining about Ms Reid's conduct or behaviour. It was Ms Mattner's evidence that she was one of five staff members who were outspoken.

 

  1. [278]
    Individually, there is no evidence that Ms Bradley resented the representations about Ms Reid's conduct made by Ms Higgs and Ms Mattner, and her own experiences with Ms Reid and any knowledge that she had about Ms How's opinions on the subject suggest that it was more likely that Ms Bradley would have been sympathetic to the complainants than the converse.

 

  1. [279]
    On balance, this factual scenario does not support a conclusion that either Dr Henderson, Ms Finley or Ms Bradley were motivated to take reprisal action against the applicant.

 

  1. [280]
    It is in these circumstances that I do not conclude that the substantial or operative reason for Ms Bradley's decision to add five names to the interview list was associated with the exercise of a workplace right by Ms Mattner. In my view, the reason was not connected with Ms Mattner's complaint against Ms Reid but was most likely motivated by a desire that nurse practitioners be given the opportunity to discuss with Ms Suarez the difficulties that they were having with Ms Mattner. To this extent, Ms Bradley may have known that nurse practitioners would complain about Ms Mattner, but this does not mean that her actions were taken for a prohibited reason.

 

  1. [281]
    The applicant strongly pressed submissions in support of findings of credit adverse to Ms Bradley, Ms Finley, Ms Dwyer and Ms Hesse. While I am satisfied by a clear margin that the applicant's attack on the credit of Ms Finley, Ms Dwyer and Ms Hesse cannot be sustained, the conclusion on Ms Bradley's evidence is more problematic because of her consistent failure to recall particular events of significance which, in the ordinary course of events, she would have been expected to recall. Notwithstanding this, I am not satisfied for the reasons that follow that Ms Bradley was unresponsive, deliberately evasive, or less than ingenuous, in giving her evidence. 

 

  1. [282]
    Part of the difficulty was that the applicant tried to weave a particular narrative around Ms Bradley's involvement in key events which tended to overlook the fact that Ms Bradley rotated through various positions during the relevant period. As a consequence, the cross-examination generally proceeded on the basis that Ms Bradley had a continuous association with, and responsibility for, particular matters in issue.

 

  1. [283]
    In truth, however, Ms Bradley was moving in and out of different roles and her responsibilities changed from role to role. In these circumstances, it logically follows that during particular intervals, while she may have been copied into particular email communications, she may have had no specific responsibility for the issue mentioned, or the issue would not have ranked high on her priority list. This was the effect of Ms Bradley's evidence when she said that she had moved between six different positions during 2018 and she had received, or would have received, emails in respect of subjects in which she was no longer interested because she had moved on from one role to the other.

 

  1. [284]
    Ms Bradley's substantive role was as a Nurse Unit Manager at the Brisbane Youth Detention Centre. However, during the latter period of 2018, she did not occupy this role, but was acting in the role of Service Development Manager for Prison Health Services. In September 2018, Ms Bradley was deployed into the role of acting Nurse Unit Manager at the Wolston Park Correctional Centre. She occupied this role for parts of September and October 2018 before relieving Ms Finley as acting Director of Operations between 15 October 2018 and 12 November 2018. In the period between 1 September 2018 and 25 November 2018, Ms Bradley could not have supervised Ms Mattner for more than six weeks without making any adjustments for leave or rostering differences.

 

  1. [285]
    Ms Dwyer said in her evidence in the proceedings that Ms Bradley was acting in the Service Development Manager role during November and December 2018. It follows that between 12 November 2018 and 26 November 2018, Ms Bradley was engaged in the service development manager role and not in a nurse unit manager role at WCC. She reverted to the Acting Nurse Unit Manager role however between 26 November 2018 and 30 November 2018 when Ms Dwyer took one weeks' annual leave. It is presumed that Ms Bradley returned to the service development role the following week before again relieving Ms Finley as director of operations between 10 December 2018 and 31 December 2018.

 

  1. [286]
    Ms Bradley in giving her evidence was not inclined to assist the cross examination in the identification of issues, and preferred to give literal and brief responses to questions. If she did not specifically recall searching for a file, sitting across the table from someone on a specific day, or composing or reading a particular email, she responded accordingly.

 

  1. [287]
    In a number of instances Ms Bradley could not answer questions notwithstanding that the questions were about issues that she should have been familiar with and which had been discussed in documents that had been disclosed or had been included in the evidence.

 

  1. [288]
    Ms Bradley also had difficulty in answering some questions which were not controversial and where the answers were already available on the face of documents tendered into the evidence. In one other instance where Ms Bradley said that she could not recall the answer, the answer was subsequently provided and it supported Ms Bradley's position, suggesting that her failure to recall was not selective or limited to questions which, if answered truthfully, may harm her position.

 

  1. [289]
    A review of some of the instances where Ms Bradley could not recall particular events or circumstances is set out below:

 

  • When Ms Bradley was asked what role she was performing on 22 November 2017, she said that she did not recall. Ms Bradley's answer was unremarkable in a context where she did not know whether, on that particular date, she was acting in the strategic development role, or relieving Ms Dwyer, or perhaps may have not been rostered to work at all.
  • When Ms Bradley was asked whether she had a recollection of receiving Ms Hesse's email dated 25 November 2018, she said "no" notwithstanding that the email was already in the evidence, was a document of significance which she must have been familiar with, and that she was named as a recipient of the email. 
  • When Ms Bradley was asked questions about an email and attachment that she provided to HR on 29 November 2018, she said that she did not know why she provided the email or attachment. Despite this response she agreed that she would have retrieved the documents from the NUM folder. The email and attachment were tendered into the evidence, and it was apparent on the face of the email and a related email which Ms Prince had sent on 30 November 2018, that the purpose of the email was to support a decision to suspend Ms Mattner. The reason why Ms Bradley was asked to locate the email appeared fairly obvious on the documentary evidence mentioned.
  • Despite Ms Hesse saying in her 31 May 2019 affidavit and in her 7 February 2019 file note that she met with Ms Bradley and Ms Finley on 29 November 2018, and where Ms Finley did not deny that the meeting took place in her oral testimony, Ms Bradley said in her evidence that she did not recall the meeting.
  • When Ms Bradley was asked why she did not interview staff who witnessed, or who were in the room, when Ms Mattner allegedly tore up the pathology form, Ms Bradley was unable to provide an explanation, despite the production subsequently of an email that established that Ms Bradley was advised not to question staff at the relevant point in time.

 

  1. [290]
    In other areas, the applicant submitted that Ms Bradley was less than ingenuous in (a) claiming that she did not always receive notices of meeting from the QNMU and (b) in suggesting that the Verifact investigation was something other than an inquiry into Ms Reid's conduct.

 

  1. [291]
    Ms Bradley had implied in her evidence that there may have been a practice to exclude NUMs from meetings or certain meetings.  The applicant rejected the proposition on the basis of Ms Semple's evidence that, after conducting a search of the QNMU records, she concluded that Ms Bradley had received all notices.

 

  1. [292]
    I am reluctant to find against Ms Bradley on the basis that a search of QNMU records disclosed that Ms Bradley should have received the notices. This does not constitute direct evidence that Ms Bradley had received and read the notices. Beyond this, there is evidence in the proceedings of a differential treatment for NUMs when it came to communications or meeting attendance. Differential treatment was evident in Ms Burton's exclusion from the Minister's meeting. Further, the possibility of differential treatment had also been raised in Ms Burton's email to the QNMU on 19 November 2018 when she said inter alia that she recognised the low priority task list "from some time ago", claimed that not all members received a draft version with the opportunity to comment, and said that she had only been given the final version of the task list.

 

  1. [293]
    For reasons discussed elsewhere in this decision, I do not accept that Ms Bradley was misrepresenting the truth when she said that the Verifact investigation was not restricted solely to a consideration of complaints against Ms Reid.

 

  1. [294]
    Ms Bradley's decision to add names to the interview list on 8 November 2018 preceded Ms Mattner's involvement in union meetings on 19 and 21 November 2018 and is an action which does not enjoy a sufficient causal connection with the complaint made by Ms Mattner on 8 October 2018.

 

  1. [295]
    By the time that Ms Mattner had attended her first union meeting on 19 November 2018, the facts suggest that Ms Bradley's part in the applicant's narrative had substantively narrowed.  If Ms Bradley's principal responsibilities are determined by the role that she held, she would have had, as Service Development Manager, no responsibility for matters in issue between 12 November 2018 and 10 December 2018, other than for one week in late November 2018 when she relieved Ms Dwyer as NUM.

 

  1. [296]
    By the time that Ms Bradley had commenced her role as Acting Director of Operations on 10 December 2018, her role had transitioned into a supportive and advisory role as opposed to a determinative role in circumstances where the decision making process was highly collaborative and where Ms Curtis, Dr Henderson and Ms Prince were the principal players.

 

  1. [297]
    Further, it is my view that once the pathology and VMO issues had been referred to HR and escalated to Dr Henderson and Ms Curtis, it cannot be factually asserted that Ms Bradley, while maintaining an advisory role, had significantly influenced any key decision nor caused any miscarriage of the decision-making processes.

 

Ms Finley's intervention

 

  1. [298]
    The applicant argued that Ms Bradley's and Ms Finley's interventions in the Verifact process should be seen on a continuum in which there was escalating hostility towards Ms Mattner. Ms Bradley would have briefed Ms Finley on her return from leave on what she had done in terms of the Verifact investigation, following which Ms Finley took similar steps to introduce further complaints about Ms Mattner into the Verifact process. In both instances, the result of the intervention was the same and both Ms Bradley and Ms Finley knew that the results would be inimical to Ms Mattner's interests.

 

  1. [299]
    Ms Finley referred a number of complaints made against Ms Mattner to Ms Prince on 22 November 2018. The complaints were subsequently forwarded to Ms Suarez on 29 November 2018. In her 16 April 2019 affidavit, Ms Prince said that she directed that the information be provided to Ms Suarez "so that she could correlate such material with the complaints that she was receiving from employees directly". 

 

  1. [300]
    While the applicant contended that the complaints should never have been activated and referred, the temporal connection between the referral of the complaints and other events was also contentious. The referral coincided with Verifact interviews where it was known by Ms Finley that complaints about Ms Mattner would be introduced by Ms Polmeer and came very soon after Ms Mattner's participation in industrial activities on 19 and 21 November 2018.

 

  1. [301]
    Ms Finley said in her affidavit that, in her position, she receives "lots of complaints" from staff. She said that she received a number of complaints about the applicant in October 2018. On 4 October 2018 she had received a complaint by Ms Hesse; on 9, 10, and 11 October she received complaints made by Mr Schoewald; and on 10 October 2018 she was provided with a copy of a complaint that Ms Kimlin had made to Ms Reid. Ms Finley said that she was not "able to action these complaints in any significant capacity" because she commenced a period of annual leave at the end of her day's work on 12 October 2018 and said that she did not resume work until 12 November 2018. Ms Finley said that upon her return from leave, she had over 1000 emails to action. The effect of her evidence was that she did not get to review the complaints, or give the complaints further consideration, until some time after her return from leave. Additionally, at or around the same time, Ms Finley had received a further complaint about Ms Mattner. On 20 November 2018, Ms Dwyer had emailed her with a file note which documented concerns articulated by Ms Polmeer on 19 November 2018.

 

  1. [302]
    Copies of the complaints were emailed to Ms Griffin and Ms Prince on 22 November 2018 at 11.56 am. Details of the complaints, which are in the evidence as Annexure YP-1 to Ms Prince's affidavit of 16 April 2019, are listed below:

 

  1. (a)
    An email and file note prepared by Ms Bradley on 13 and 26 September 2018 dealing with rostering;
  2. (b)
    An unsigned file note dated 28 September 2018 in which it is claimed that Ms Mattner made disparaging remarks about nurse practitioner, Mr Schoenwald; 
  3. (c)
    An email from Ms Reid dated 3 October 2018 which appeared to be related to the rostering issues dealt with by Ms Bradley;
  4. (d)
    An email dated 4 October 2018 from Ms Hesse;
  5. (e)
    Emails dated 9 and 10 October 2018 from Mr Schoenwald;
  6. (f)
    An email dated 10 October 2018 from Ms Kimlin;
  7. (g)
    An email dated 20 November 2018 from Ms Dwyer to Ms Finley, Ms Bradley and Ms Koch, which attached a file note prepared by Ms Dwyer in relation to a discussion she had with Ms Polmeer on 19 November 2018. Ms Dwyer stated in her email that a further file note would be provided by a pharmacist who also had concerns about what is presumed to be Ms Mattner's behaviour. 

 

  1. [303]
    Further complaints about Ms Mattner had found their way to HR through different channels. Ms Polmeer had particularised her complaints about Ms Mattner and forwarded file notes to Ms Dwyer on 21 November 2018. Ms Dwyer in turn had referred a copy of the file notes to Ms Bradley and Ms Trayling. Additionally, Mr Schoenwald had sent a third email to Ms Finley on 11 October 2018. While this email was not included in the bundle of materials sent to Ms Griffin and Ms Prince on 22 November 2018, Ms Finley had earlier emailed this complaint to Ms Bradley and Ms Koch on 11 October 2018. Ms Koch in turn had forwarded the content to Ms Hair and Ms White who were part of the health services resources team.

 

  1. [304]
    The applicant disputed Ms Finley's claim that, upon her return from annual leave, she was required to address unresolved complaints made about Ms Mattner. In the applicant's view, Ms Finley had mischaracterised the status of the complaints and had misrepresented the importance or significance of the complaints in asserting that they required the attention of HR.

 

  1. [305]
    I do not accept that Ms Finley was misleading HR in her description of the relevant material and, in broad terms, I accept her explanation that it was not usually her role to action the complaints and that she was unsure of the status of the complaints. She was entitled as Director of Operations, and having the benefit of a significant HR support cohort, to simply refer what she had and to leave it to HR to evaluate the material and determine relevance. It was HR's responsibility to determine which, if any, of the file notes or emails required further attention from a performance management perspective, and which were considered relevant to Ms Suarez's work.

 

  1. [306]
    In the end result however, whether or not individual complaints had been acted on, was not the influential consideration. The more important consideration is whether the complaints disclosed a pattern of unacceptable behaviour occurring over time which had reached a point where action needed to be taken.

 

  1. [307]
    It was also relevant that, on Ms Mattner's 17 May 2019 affidavit evidence, none of the complaints referred by Ms Finley had been presented to her for a response:

 

I have never had these complaints or concerns raised with me directly until now. I have never been made aware of these concerns and complaints. I would have expected any genuine concerns and complaints to have been raised with me informally first or under formal grievance processes. I cannot respond to vague and general allegations like this other than to say that I have not done anything to justify concerns and complaints.[33]

 

  1. [308]
    It followed, on the applicant's perspective, that if the complaints had not warranted immediate attention, there could be no legitimate reasons for them to introduced at a later date and that it was probable that the introduction of the complaints was related to Ms Mattner's involvement in workplace issues. However, an alternative view would be that while through oversight or an avoidance to act on individual incidents no action was taken, those circumstances changed upon an accumulation of complaints and proof of a pattern of unacceptable behaviour. 

 

  1. [309]
    In submissions, the applicant had completed an analysis of the complaints referred by Ms Finley and had come up with the following conclusions:

 

  • The 13 September 2018 email from Ms Bradley was not a complaint at all;
  • The 26 September 2018 file note raised an issue that was over and done with and finalised;
  • The 28 September 2018 file note was unsigned and did not raise a complaint or a concern;
  • The 3 October 2018 email exchanges about rostering issues did not raise a complaint or a concern;
  • The 4 October 2018 Hesse complaint had been reviewed by the NUM. Ms Finley had concluded that the complaint did not require her attention and that it was being adequately dealt with;
  • The Schoenwald complaints were finalised and resolved by Ms Finley when she attended at Wolston on 11 October 2018. These matters were not current and should not have been referred to HR;
  • The Kimlin complaint was considered to have raised behaviours on the applicant's part which were entirely legitimate and required no investigation. Ms Finley's claim that she had forwarded the complaint to Jen Hair in HR for attention was challenged.

 

  1. [310]
    My analysis of the material included in YP-1 is different to that advanced by the applicant. For my part:

 

  • While the 13 September 2018 email does not constitute a complaint or a concern, its content is related to the 26 September 2018 file note. This file note was relevant because it addressed particular behavioural problems associated with rostering, including a concern that Ms Mattner had been attending at Wolston on her day off and had made unauthorised changes to rosters. In the file note Ms Mattner is warned that she has no responsibility for rostering and that she is not to be at work outside her rostered hours;
  • The 28 September 2018 file note appears to be more a record of conversation rather than a complaint. The file note may serve some purpose in that it is a record of Ms Mattner making disparaging remarks about a nurse practitioner, Mr Schoenwald, and is relevant to differences in opinion in relation to S4 and S8 medications;
  • The 3 October 2018 email exchanges deal with rostering errors which may or may not have some connection with Ms Mattner. The relevance of this email is its connection to the earlier records of discussion about rostering practices;
  • In the 4 October 2018 email, Ms Hesse provided a detailed account of how Ms Mattner had jeopardised the care of a high risk patient. There is no evidence that this matter had been resolved. Ms Finley said in her evidence that if a Riskman entry had been completed, the NUM would open the file and review it. As I understood her evidence, that was her expectation, but she did not know whether that had happened. Irrespective of whether the issue had been resolved or not, it was relevant in that it recorded an alleged breach of patient care and was an issue which needed to be considered in conjunction with any other similar complaint;
  • In his 9 October 2018 email, Mr Schoenwald said that Ms Mattner had questioned him multiple times about his treatment of a patient. He said that he had to ask Ms Mattner to leave his room. The effect of Ms Finley's evidence in the proceedings was that she addressed the issue at a handover on 11 October 2018.  The email is a record of continuing issues between Ms Mattner and Mr Schoenwald;
  • The 10 October 2018 email records a further complaint by Mr Schoenwald to the effect that a significant patient incident had not been entered into the notes. Ms Mattner had been one of the attending nurses. There is no evidence to the effect that this complaint had been addressed;
  • Ms Kimlin's complaint dated 10 October 2018 was more than commentary on what might be regarded as legitimate activity by the applicant. The complaint alleged that Ms Mattner was undermining directions given by Ms Reid "at every opportunity" and recorded other complaints about Ms Mattner's behaviour which was described as "disturbing and unprofessional". In a clinical care setting, the allegations were serious;
  • The 19 November 2018 file note prepared by Ms Dwyer in relation to a discussion that she had with Ms Polmeer was clearly relevant to any review of Ms Mattner's conduct.

 

  1. [311]
    In my view the content of the material in question did warrant escalation to HR. Further, it appears to me that applicant's characterisation of the complaints may have been misconceived in that the issue of consequence was not whether individual complaints or concerns had been addressed with Ms Mattner by her line manager, but whether the accumulation of complaints against her required some form of senior management or human resources intervention.
  2. [312]
    While the applicant questioned the truthfulness of Ms Finley's evidence around the status of complaints and the necessity for her to pass on the complaints to HR when she did, I prefer Ms Finley's evidence to the extent that, while belated, it was correct for her to conclude that the accumulation of complaints against Ms Mattner required some form of assessment and advice on the part of HR. In this regard, I note that:

 

  • While Ms Hesse said she would complete a Riskman report, no management action was taken in respect to her 4 October 2018 complaint;
  • While Ms Finley said that she had addressed Mr Schoenwald's 9 and 10 October 2018 complaints, she had referred Mr Schoenwald's 11 October 2018 complaint to Ms Koch and Ms Bradley on 11 October 2011 (Annexure MF-10 to Ms Finley's affidavit). Ms Koch in turn had forwarded the complaint to Ms Jen Hair and Ms White in human resources also on 11 October 2018. Ms Finley said that she did not know what HR had done with the information;
  • Ms Finley said that she did not action Ms Kimlin's complaint before going on annual leave, and there is no evidence that she actioned it on return from leave before forwarding it to HR on 22 November 2018. Ms Finley said in her evidence (T3-55) that she may have forwarded the email to Ms Hair in human resources for review;
  • A management response was required to the Polmeer complaints;
  • Both Ms Polmeer's and Ms Kimlin's complaints were directly relevant to the investigation into Ms Reid's conduct and behaviour, and needed to be referred to HR and to the Verifact investigator;
  • It is not known whether a pharmacist's complaint referred to in Ms Dwyer's 20 November 2018 file note had been referred to HR by the pharmacist's line manager;
  • Ms Finley's practice appeared to be to ask, encourage or direct NUMs and nurse practitioners to keep her informed of staff issues. The emails in the evidence spanning a significant period of time confirmed this practice;
  • Ms Finley had been consistent in her evidence in explaining that while she was copied into file notes or emails outlining staff complaints, it was generally not her responsibility to action those complaints. It was typically a matter for the NUM and human resources to take the appropriate action.

 

  1. [313]
    In her evidence in the proceedings, Ms Finley maintained that she was unaware of the status of at least some of the complaints that she had referred:

 

And then from that scuttlebutt, you segued into Ms Mattner generally, so you changed the whole of the conversation?---I’d said that I had other things that had come across my desk. I’d asked where the previous things were up to. I didn’t know whether these had been addressed and by who, and I asked whether or not they would be able to review. She said send them down, which I did, and they were going to let me know what was finalised, what wasn’t, what were the next steps.[34]

 

  1. [314]
    In her affidavit, Ms Finley said in effect that she decided to refer the collection of complaints to human resources because she wanted to ensure that HR had all the relevant information before them in respect to the Verifact investigation. It was her view that because an investigator was currently conducting an investigation "relevant to issues with nurses at Wolston that it was entirely appropriate for this investigator and HR" to consider the issues raised in the complaints that she had referred. The applicant however  saw the matter differently and submitted that:

… although Ms Finley knew on 22 November that the Verifact investigation was about allegations of bullying against Ms Reid, she intended that it was going to take a turn by certain staff making serious accusations against Tanja and, by her own admission, she was wanting these "complaints and concerns" to add to the weight of accusations.

 

  1. [315]
    Ms Finley said that she had been prompted to forward the collection of complaints to human resources by an exchange between herself and Ms Prince during a meeting held on 22 November 2018.

 

  1. [316]
    Ms Finley's meeting with Ms Prince had resulted from an email sent by Ms Prince to Ms Finley at 10.38 am about a Crime and Corruption Commission (CCC) notification detailing an allegation that a nurse at Wolston Park had borne a child fathered by a prisoner. In the course of this discussion, Ms Finley had mentioned that Ms Mattner had been a friend of the nurse in question and that this exchange had prompted Ms Finley to inform Ms Prince about other issues of concern that had been raised involving Ms Mattner.

 

  1. [317]
    It was Ms Prince's evidence that after discussing the CCC matter, the conversation moved to complaints about the applicant:

 

And then from there proceeded to talk about these complaints and concerns?---Yes. I understood that she had – from that conversation, she had been receiving complaints or concerns about Ms Mattner.

 

Yes?---But – but she had been on leave.

 

And so what she said to you was the complaints and concerns had come to her when she was on leave, was that right?---Well, I – I can’t remember the exact conversation. I know Marie had been on leave. She ca – when I was speaking to her she had these complaints and concerns that sounded like they had not been addressed - - -

Yeah?--- - - - by anyone, either HR or our team. Our team weren’t aware of them, so I invited her to send them to our team so that we could have a look at them and give her the advice that we would give to a manager.

 

But during that conversation she mentioned something about her being on leave?---Marie was – had been on leave, yes.

 

Yes, and so your understanding was that that had something to do with them not being dealt with?---Yes, and – and it possibly was also because people in HR that would be Ms Finley’s normal contact had also been on leave. That’s my understanding, is that there may have been some delays because of that.[35]

 

  1. [318]
    While the connection between the applicant and the CCC notification may have been obscure, what is consistent with the factual matrix in my view is that Ms Finley had received on and after 4 October 2018 a number of significant complaints about Ms Mattner which warranted, but had not attracted, any significant management response. When Ms Finley belatedly drew Ms Prince's attention to these complaints on 22 November 2018, it was inevitable that some review into the veracity of the complaints had to be undertaken. In her evidence Ms Prince confirmed this position when she said that when she was speaking to Ms Finley on 22 November 2018, Ms Finley "had these complaints and concerns that sounded like they had not been addressed".

 

  1. [319]
    I do not accept the applicant's criticism of Ms Finley's practice to store complaints in an electronic folder (the Wolston folder) and the description of the folder as a "dirt file".

 

  1. [320]
    Both NUMs and nurse practitioners reported directly to Ms Finley and it appeared to be a common practice for nurse practitioners and NUMs to give Ms Finley visibility of complaints and performance concerns. Ms Finley's practice of saving particular types of documents in a specific folder was an entirely unremarkable and sensible human resource management practice. While the applicant may have preferred to divert attention from Ms Mattner's performance history, the facts associated with Ms Mattner's performance justified the creation and maintenance of the Wolston folder.

 

  1. [321]
    The central matter for consideration is whether Ms Finley's explanation for why she referred complaints to HR when she did, can be accepted as reliable, or whether on all of the evidence it should be concluded that the probable reason for her so acting was her desire to punish Ms Mattner for her involvement in workplace issues and her participation in union meetings on 19 November and 21 November 2018. The principal considerations supporting the applicant's position were the failure of the respondents to act on complaints when they occurred, and the temporal connection between the decision to act on the complaints and Ms Mattner's participation in industrial activities.

 

  1. [322]
    The effect of Ms Finley's evidence was that she referred the complaints to Ms Prince because she believed that the conduct and behaviour addressed in the complaints required review. It followed that any the temporal connection between her decision to refer complaints to HR, and Ms Mattner's attendance at union meetings, was a coincidence.    

 

  1. [323]
    For Ms Finley, the timing issue was driven by a number of factors, in respect of which she provided a relatively straightforward and uncomplicated explanation.  Ms Finley said that she had received some significant complaints about the conduct and behaviour of Ms Mattner between 4 October 2018 and 19 November 2018. These complaints had been referred to her either in the week before or the week after she took four weeks leave, and on her evidence may not have been actioned or effectively dealt with. On her return from leave on 12 November 2018, she was required to deal with a very large backlog of emails and was only prompted to turn her mind to the complaints about Ms Mattner when she met with Ms Prince on 22 November 2018.

 

  1. [324]
    When Ms Finley told Ms Prince about the complaints, Ms Prince asked her to refer the complaints to HR for review and subsequent advice. Ms Finley said that she followed the advice that she was given and emailed the complaints to Ms Prince. On 29 November 2018 Ms Prince caused the complaints to be referred to Ms Suarez who was asked to prepare a report in relation to those complaints and other complaints that had emerged from the Verifact interviews. 

 

  1. [325]
    Factors which make it more likely that Ms Finley's explanation is accepted as reliable include:

 

  • Ms Finley's decision to refer the complaint should be considered nothing other than a routine performance management function triggered by an accumulation of individual complaints which had not been previously addressed;
  • The timing of the decision can be explained by Ms Finley's return from annual leave, her receipt soon after returning from leave of a further complaint against Ms Mattner, and her discussion with Ms Prince about the complaints on 22 November 2018;
  • It cannot be doubted that the issues raised, particularly by Ms Hesse, Mr Schoenwald, Ms Kimlin and Ms Polmeer, were significant and serious when taken at face value, and that management would have been remiss had it not responded to the complaints;
  • Because Ms Polmeer's complaint included allegations that Ms Mattner had fabricated complaints against Ms Reid, Ms Finley was obliged to refer this complaint to the Verifact investigator.

 

  1. [326]
    Beyond these considerations, if Ms Finley did not know that Ms Mattner had attended a union meeting on 19 November 2018 and did not know that Ms Mattner had attended the Minister's meeting on 21 November 2018, her decision to refer the complaints could not have been actuated by the fact that Ms Mattner had attended these meetings. This also means that nothing turns on the fact that the complaints were referred very soon after Ms Mattner's attendance at union meetings on 19 and 21 November 2018.

 

  1. [327]
    While the applicant saw the introduction into the Verifact process of complaints against Ms Mattner as evidence of improper conduct, there are significant reasons why this may not be the case. Firstly, both Ms Bradley and Ms Finley treated the Verifact process as a process which was capable of considering all workplace issues, not just issues relating to Ms Reid. Secondly, Ms Finley was direct in her evidence in saying that the appropriate course at the time was to refer the complaints made by co-workers against Ms Mattner to the Verifact investigator. Thirdly, in my view on an examination of all the evidence, it was inevitable that Ms Mattner's conduct would attract attention in the Verifact interviews because of the nature of the Kimlin and Polmeer complaints. Both of these complaints included allegations that Ms Mattner may have played an improper role in Ms Reid's downfall. These allegations were directly relevant to the Verifact investigation into Ms Reid's conduct, and the exculpatory nature of some of the content required that these complaints be considered as part of the Reid investigation.

 

Scope of Verifact investigation

 

  1. [328]
    A matter attracting attention in the proceedings was whether the Verifact investigation was limited to a review of Ms Reid's conduct or was a more general review of workplace concerns.

 

  1. [329]
    While it was generally accepted that the investigation was commenced for the purpose of reviewing the conduct and behaviour of Ms Reid, the effect of the evidence of a number of the respondents' witnesses was that the investigation included a general review of workplace conduct, or of the workplace culture, at Wolston. 

 

  1. [330]
    The terms of reference for the investigation were set out in correspondence sent to Verifact on 31 October 2018 by the Chief Executive of the health service.[36] The correspondence noted that while written complaints had not been made, various employees had verbally raised concerns of bullying and harassment and inappropriate behaviour on the part of their manager. In clause 3 (Scope), the Verifact investigator was asked to interview up to 30 employees who have raised concerns regarding their manager; to electronically record interviews and prepare transcripts; and to prepare a summary of concerns raised which were to be collated as a brief report. It is not known whether the terms of reference were provided to Ms Bradley and nurse unit managers. Ms Finley was on leave at the time and may not have been familiar with the terms of reference.

 

  1. [331]
    In her affidavit, Ms Finley said that in circumstances where she had received a number of complaints about Ms Mattner, and given that an investigator was currently conducting an investigation relevant to issues with nurses at Wolston Park, it was entirely appropriate for this same investigator and HR to consider the issues associated with the complaints, as well as the issues associated with Ms Reid.

 

  1. [332]
    The applicant did not accept that Ms Finley's evidence was either plausible or truthful. The submission was that Ms Finley knew that the Verifact investigation was an investigation into staff complaints made about Ms Reid and that she knew that it was not an investigation into staff complaints at large. In these circumstances, it was probable that Ms Finley was using the investigation for the illegitimate purpose of causing harm to Ms Mattner. Ms Finley however denied that she had any familiarity with the conduct of the investigation. In her affidavit, she said in effect that while she understood, on her return from annual leave, that an investigation had been progressing, she had not been involved in any of the decisions associated with the investigation.

 

  1. [333]
    Ms Bradley equivocated in giving her evidence on the subject. On the one hand, she agreed that the investigation was an investigation into the conduct and behaviour of Ms Reid, while on the other hand she said that the investigation was not about Ms Mattner, but was about Wolston, the workplace.

 

  1. [334]
    Ms Dwyer had arrived at the Wolston Correctional Centre on 15 October 2018 for the purpose of relieving Ms Reid who had been removed from site during the Verifact investigation. Her evidence was to the effect that she knew that there was an investigation, and that the investigation had been commenced as a result of staff complaints about Ms Reid, but she did not know much about the matters in issue. She also said however that it was her understanding that the investigation was "about the culture of Wolston Correctional Centre". Apparently based on this understanding, it was her practice "to say to all staff to be involved", and to raise concerns with the investigator if they needed to.

 

  1. [335]
    Ms Polmeer said that she did not know that the investigation was confined to a discussion about Ms Reid. Ms Hesse gave similar evidence in that she said that the investigation included all matters affecting the workplace. A basis for Ms Polmeer's and Ms Hesse's understanding of the scope of the investigation may be found in the letters they received requesting that they attend for an interview. Included in the evidence is a copy of the interview request sent to Ms Mattner on 29 October 2018.[37] While the letter refers to concerns that had been raised about alleged inappropriate workplace behaviour and conduct, the letter did not identify Ms Reid, nor her rank.  If a template letter were used for the purpose of interview requests, and if Ms Hesse and Ms Polmeer received the template letter, it may be that they could have misconstrued the terms of reference.

 

  1. [336]
    More significantly, it was Ms Suarez's evidence that a decision had been made by the health service that the Verifact investigation was to consider all workplace issues, and that the investigation was not confined to a review of complaints about Ms Reid. The effect of Ms Suarez's unchallenged affidavit evidence was that she had been instructed by the health service to receive any workplace concerns:

 

I typically commence each witness interview with some basic questions such as the person's name, position and length of service. In many investigations I have a set of allegations or specific questions to ask. West Moreton however had instructed me to ask more generally if the witnesses had any concerns about their workplace or their manager, in this case Ms Lorraine Reid. However when I interviewed some of the witnesses, and gave them the opportunity to raise concerns about the workplace or their manager, they raised concerns about Ms Mattner instead of, or in addition to, any complaints they may have had about Ms Reid. In none of the cases had I mentioned Ms Mattner by name or position to those witnesses before they raised their complaints about her.

 

  1. [337]
    I am unable to attach any improper motivation to the respondent's decision to use the Verifact investigation for a broader purpose than that defined in the terms of reference. Ms Suarez's evidences makes it clear that this decision was arrived at before interviews commenced. Natural justice and procedural fairness considerations were not offended. The broader purpose was not to investigate complaints about Ms Mattner and interviewees were not asked questions about Ms Mattner. The broader purpose was to encourage discussion about any workplace concerns held by staff at Wolston.

 

  1. [338]
    It is not known who instructed Ms Suarez to conduct the investigation in the manner described, but it most likely would have been one of the HR staff with whom she liaised  or reported to. Given the instruction passed on to Ms Suarez, it might be expected that Ms Finley, Ms Bradley and Ms Dwyer were aware of the broader scope of the Verifact investigation.

 

  1. [339]
    Given Ms Suarez's uncontested evidence, I accept that the Verifact investigation was conducted on the basis that it was not exclusively concerned with views or opinions about Ms Reid, and was also concerned with the opinions of employees about the workplace generally.

 

Pathology slip and VMO response

 

  1. [340]
    In her affidavit, Ms Hesse said that she made the 25 November 2018 pathology slip complaint against Ms Mattner:

 

… because I was concerned about the patient's safety and the potential risks to patient safety if the pathology was not collected for this patient. If I had not witnessed the events of 25 November 2019, I do not believe we would have caught that the patient had not had his pathology collected. I was also concerned that confidential information had been destroyed in an inappropriate manner.

 

  1. [341]
    The applicant was not circumspect in attempting to discredit the complaint which was described as spurious. In an attack on Ms Hesse's character and professional standing, the effect of the applicant's submission was that Ms Hesse was not motivated by professional and clinical concerns but was fabricating or exaggerating particular circumstances to bring Ms Mattner into disrepute.

 

  1. [342]
    The applicant said that the complaint should be seen as a manifestation of antipathy toward Ms Mattner which was demonstrated by previous incidents in which Ms Hesse had complained about Ms Mattner and was evident in the sarcastic tone employed in Ms Hesse's email exchange with Ms Finley on 25 November 2018 when Ms Hesse said:

 

I wasn't able to grab all but I can piece together what I have. This just astounds me. Rachael Polmeer and I tried to reason with her today regarding the spreadsheet for VMOs. It's official. You can't reason with her.

 

  1. [343]
    It is factually correct that Ms Hesse had complained about Ms Mattner on 4 October 2018 during her Verifact interview, and on 25 November 2018. But Ms Hesse was not alone in complaining about Ms Mattner and a number of other nurse practitioners had raised significant complaints about Ms Mattner. Further, on a prima facie analysis of the complaints made by Ms Hesse, they could not be dismissed as being frivolous or inconsequential. While the 25 November 2018 complaint was ultimately not substantiated, the 4 October 2018 complaint drew attention to what was considered to be a serious error in clinical care and a refusal by Ms Mattner to follow the directions of a nurse practitioner.

 

  1. [344]
    I accept that while Ms Hesse's use of sarcasm in the crafting of her 25 November 2018 email was unnecessary, it was likely sarcasm borne out of frustration with Ms Mattner's failure to follow VMO procedures and Ms Mattner's general disinclination to comply with nurse practitioner requests.

 

  1. [345]
    While the applicant submitted that Ms Hesse provided both "incredible and conflicting accounts" in relation to what she saw and did on 25 November 2018, Ms Hesse defended her actions during cross-examination in a clear and concise manner:

 

And so would you not accept then, that this is – or do you accept this; that to set what occurred in motion, based on what you did, was a complete overreaction to a rational analysis of what you found?---No.

 

And that there was simply no basis for you to make the accusation you did about Ms Mattner?---No. There was basis. It was my concern.

 

And you’ve given – that’s – that’s how you rationalise it, based on – and so the way you rationalise is the evidence you’ve given in this proceeding; is that how you rationalise it?---Yes.

 

And I suggest to you that having only days before, gone to Verifact and unloaded on Ms Mattner, this was another opportunity for you to sink the boot into her?---No.

 

And you knew you would have a receptive audience with Ms Dwyer, Ms Finley and Ms Bradley?---Receptive as in what, exactly?

 

They would be sympathetic to any claims made against Ms Mattner?---No. I escalated it to them because they were her – my manager and her manager.

 

And you knew that would get her into trouble?---No. I did that because I had concern for patient care, and I escalated my concern and what they did with that information is not anything to do with me.[38]

 

  1. [346]
    In her evidence in the proceedings, Ms Hesse said that she acted on the information that she had and what she had seen, and then elected to escalate the matter. She said that she escalated the matter because patient care was potentially impacted and that the correct procedure for disposing of a pathology form had not been followed.

 

  1. [347]
    It was Ms Hesse's evidence that she saw Ms Mattner "standing at the pathology file sorting pathology"; that she heard paper being ripped and saw that Ms Mattner had "torn up pathology paper in her hands"; and that Ms Mattner proceeded to throw the paper into the bin. Despite what she saw, when Ms Hesse challenged Ms Mattner, Ms Mattner denied that she had torn up pathology paper. About fourty minutes later, Ms Hesse conducted a search of the rubbish bin to try to find the torn pathology paper. As a result of the search, Ms Hesse retrieved two pieces of pathology paper.

 

  1. [348]
    Ms Hesse agreed that there was no way of knowing if both pieces were from the same form. She said that while a fax imprint was not evident on either piece of paper, both pieces were consistent with the way that the Princess Alexandra Hospital communicates their pathology requests to Wolston.

 

  1. [349]
    A photocopy of the two pieces is in the evidence as Annexure 2 to Ms Semple's 15 April 2019 affidavit. One piece includes the Queensland Government crest and the heading "Pathology Queensland". This piece includes a reference to "PAH" and "Pre-Arrival", and includes a name, which may or may not be the patient's name, and below the name are the words "Wolston Correctional Cnt".

 

  1. [350]
    The second piece includes provision for the "Requesting Doctor's Signature", the "Date Requested", and a space for the inclusion of who to copy the report to. A number of words are included in small print on this piece. Some of the words refer to "Pathology Queensland" and to "pathology provider".

 

  1. [351]
    While the complaint was made on 25 November 2018, Ms Mattner was not told that allegations had been made against her until 3 December 2018. She was to be informed of the allegations at a meeting with Ms Finley at or around 7.00 am that day but this meeting did not eventuate and Ms Mattner was informed of the allegations in correspondence emailed to her later in the same day. Ms Mattner said that she did not consider that the information provided to her on 3 December 2018 provided adequate details of the allegations.

 

  1. [352]
    In submissions, the applicant extensively criticised the management response to the Hesse complaint. The applicant submitted that inferences could be drawn to the effect that Ms Finley had used and manipulated the Hesse complaints in a malicious endeavour to destroy Ms Mattner's career with the health service. It was further submitted that even if the truth of Ms Hesse's account were accepted, what she saw did not justify a complaint.

 

  1. [353]
    According to the applicant, Ms Finley acted opportunistically and with excessive haste in determining to move Ms Mattner out of Wolston without due process and without any legitimate foundation. In so proceeding, the respondents made no attempt to verify the underpinning facts and circumstances before escalating the complaint. These conclusions, on the submission of the applicant, were open by reference to a number of factors.

 

  1. [354]
    Firstly, normal performance management or human resource procedures were not followed. It was Ms Mattner's evidence that the incident reported by Ms Hesse should never had been referred direct to Ms Finley and Ms Bradley, but should have been addressed in the first instance by her line manager:[39]

 

So have you had experience with dealing with certain other types of issues as a Nurse Unit Manager?---Yes.

 

Including issues where complaints have been made about the clinical practice of staff?---Yes.

Now, based on that experience and your experience in the Prison Health Service, what – if you could just step through what’s the usual practice for dealing with something like that?---The initial step would be to go to the – my line manager and then the line manager would come to me and speak with me directly. Now, this – this alleged incident happened on a Sunday, the Nurse Unit Manager, I would expect, would speak to me on the Monday and we would go through the whole matter. Particularly if there are concerns for patient safety. That’s when they – it should have been looked into as to whether this patient had bloods done; whether they weren’t; whether there was an actual form in the first place.

 

  1. [355]
    A difficulty for Ms Mattner's preferred response is that Ms Dwyer had commenced a period of leave and Ms Bradley was the acting NUM replacing Ms Dwyer. The issue then becomes whether Ms Bradley should have dealt with the matter on an informal basis. A reason for her not so doing may have been that at 11.18 am on Monday 26 November 2018, Ms Trayling had emailed Ms Bradley and others and said that due to the patient safety risk, suspension could be considered.

 

  1. [356]
    Secondly, Ms Finley did not examine the two pieces of paper when they were provided by Ms Hesse. Thirdly, the most basic and obvious checks of the status of the pathology request were ignored until after the decision to suspend had been made. Copies of the pathology form were not requested from the Princess Alexandra Hospital until 5 December 2018; no check was made to determine if the bloods in question had been ordered; and the patient's chart, which was held at Wolston, was not reviewed. Fourthly, despite the fact that workers, others than Ms Mattner and Ms Hesse, were in the room when the paper was torn, no attempt was made to interview witnesses.

 

  1. [357]
    The applicant was highly critical of Ms Finley's and Ms Bradley's failure to immediately recognise that Ms Hesse's conclusions could never have been validly drawn from two small pieces of unrelated paper. It was improbable that experienced nursing professionals such as Ms Finley and Ms Bradley would not have immediately questioned how conclusions could be drawn from this evidence. The explanation for Ms Finley's disproportionate response was to be found in a motivation to cause the applicant "maximum vexation and distress".

 

  1. [358]
    In her affidavit, Ms Finley said in effect that during the course of the week commencing 26 November 2018, she had arranged for a check to be done of the Auslab system and saw that the pathology had not been collected from the patient. She said that she understood that the patient had a malignancy and needed the pathology collected before he could have surgery. These matters conveyed serious clinical implications.

 

  1. [359]
    In her 29 November 2011 file note (Attachment SH-2 to her affidavit), Ms Hesse confirmed that the pathology request from the PAH for the patient named on the torn pathology form had not been actioned "as there was nothing recorded in the pathology software program AUSCare".
  2. [360]
    The effect of Ms Finley's evidence in the proceedings was that she had asked Ms Hesse to make particular enquiries in relation to the pathology request (T3-78):

 

… My – my – my first questions about this when I got it was (a) – like, I could see that it’d c – it’d come from PA; she’d said it’d come from PA. I – the first questions I had when I was alerted about it was, can you see a name, can you check on – to see whether or not pathology’s p – being collected; can you check the file and see what’s suppose – what was supposed to happen. She came back to me to let me know that this person had a malignancy, was booked for surgery. There – there wa – the pathology hadn’t been collected. I asked her to rectify that, so it didn’t hold - - - (up treatment).

 

  1. [361]
    The applicant submitted that, to the extent that Ms Finley had claimed that she had received answers to these questions by 29 November 2018, any such claim was contradicted in the evidence of Ms Hesse and Dr Henderson. It was the applicant's understanding of the evidence that Dr Henderson did not get this information from Ms Finley when she spoke to Ms Finley on 29 November 2018 and that Ms Hesse did not collect the information until the following week, and on 5 December 2018.

 

  1. [362]
    In her 31 May 2019 affidavit, Dr Henderson said that when Ms Finley advised her of the Hesse complaint on 29 November 2018, she wanted to know the answers to particular questions. The applicant concluded that the effect of Dr Henderson's evidence was that she did not get answers to the questions until some time later and that Ms Finley was not correct in saying that she provided answers to questions on 29 November 2018. In fairness to Ms Finley, Dr Henderson's recall of events was not laser-like. While she said that one particular issue remained unresolved for some time, her recollection generally was that "I can't specifically recall but I would imagine what she would've said would be that she would find out and give me more information".

 

  1. [363]
    Dr Henderson said that the information that she was given by Ms Finley at the time, which I take to be 29 November 2018, was that the patient was unwell and that it was important that he receive his blood tests. She said that her primary concern was for the patient and whether the patient would get his blood taken as scheduled:

 

So in relation to your query about where the patient was, what did Ms Finley tell you?---Well, wasn’t specific and I – honestly I wanted to know definitively; what was the story with the patient?

 

Yes?---Was he on anticoagulant therapy? Where was he? What was the impact? Was it just routine bloods or was it something that was really indicative of and really important to his treatment protocol? So I was trying to clarify that and I still – it wasn’t until much later that I realised or I was told that it was testosterone therapy.

 

Yes?---So I – and that’s as much as I know. But that was my concern; my primary concern, and would be, how I would roll on that.[40]

 

  1. [364]
    The evidence is not clear in determining when Dr Henderson got the answers that she was looking for, but the evidence does disclose that the relevant investigations did occur over time. Ms Hesse had established on or before 29 November 2018 that no pathology had been collected from the patient in question. Ms Hesse said in her oral testimony that when she emailed an enquiry about the pathology form to the PAH on 5 December 2018, she was told that such a form did not exist. Ms Hesse also said that the PAH provided, at the same time, a copy of the patient's discharge summary.

 

  1. [365]
    Ms Bradley had also been making enquiries and an email in the evidence as Exhibit 11 suggested that she had completed her enquiries by 13 December 2018. In the email Ms Bradley told Ms Prince:

 

Please see attachment. I have highlighted the relevant areas of the outpatient note. The patient was seen in the Bone Clinic 15 November 2018. The recommendation was for the patient to commence Testosterone replacement and the registrar requested repeat bloods in the week following the appointment. The notes state that the bloods need to be collected prior to commencing testosterone. The patient has not commenced testosterone and even though he was in hospital the requested pathology still needed to be collected. The patient has not yet commenced testosterone.

 

The patient was transferred to PAH on 23 November after complaining of pain (no description of pain) and bloody urine.

 

  1. [366]
    Whatever be the truth of the matter, the complaint of a neglectful and tardy response was pressed by the applicant for two reasons. Firstly, if Ms Finley had been less than truthful in her evidence, a finding of credit adverse to Ms Finley may be justified. Secondly, the timing of decisions by the respondent to make basic enquiries about the pathology form allegation was considered significant. The applicant's proposition was that Ms Finley's failure to act immediately after 25 November 2018 to ask obvious questions and to get quick answers which would potentially resolve the issues in controversy, was consistent with a state of mind that Ms Finley wanted the complaint to be true or to have the appearance of truthfulness for as long as it was necessary for the health service to commit to removing Ms Mattner from Wolston.

 

  1. [367]
    When the respondents did gather information, the applicant said that in areas the information was manifestly wrong. In this regard, it was established after the event that the patient in question did not have a malignancy and that the blood test was required for testosterone treatment. For the applicant, a treatment for malignancy was fabricated to elevate the apparent seriousness of the issue and to add false urgency around the response to the allegation and the need to transfer Ms Mattner.

 

  1. [368]
    I am not persuaded to accept the applicant's narrative. Firstly, while the applicant was entitled to question the adequacy and the speed of the response to the pathology slip allegation, in my view the applicant's criticisms largely misconceive what was occurring with the respondent's decision-making processes. These processes proceeded on the premise that the allegations may be true and were consequentially preoccupied with dealing with two issues of urgency. The first issue related to the ascertainment of the safety of the patient who it was presumed required blood to be drawn. The second issue revolved around whether an act of apparent neglect with significant clinical consequences, considered in the context of the history of past complaints, required Ms Mattner's immediate suspension. At this point in time, Ms Prince or Ms Trayling had visibility of Ms Finley's bundle of complaints on 22 November 2018, Ms Polmeer's file notes on 22 November 2018, and Ms Suarez's feedback on 23 November 2018 relating to complaints about Ms Mattner that had emerged during Verifact interviews.

 

  1. [369]
    Secondly, the applicant has mischaracterised Ms Finley's role in the response to the Hesse allegations. Having, only a few days before, agreed to refer a number of complaints about Ms Mattner to Ms Prince for review and advice, Ms Finley acted predictably and consistently in immediately referring the Hesse complaint to human resources. In so doing, Ms Finley included no explanatory comment nor did she suggest any course of action. In my view, it was self-evident to all concerned that the Hesse complaint had to be evaluated in the context of previous complaints.

 

  1. [370]
    Not unexpectedly, given the gravity of the allegations, the referral of the Hesse allegations drew an immediate response from HR when Ms Trayling linked the Hesse complaint to previous complaints, and started the discussion about the suspension of Ms Mattner.

 

  1. [371]
    From this point on, in my view, the final decision on suspension predominantly turned on the advice provided by Ms Trayling and Ms Prince which was to the effect that, having regard to Ms Mattner's complaint history and particular concerns about patient welfare, Ms Mattner's suspension was an appropriate response. This was the effect of Ms Finley's evidence in the proceedings:

 

So the conclusion then is, in your view, Ms Mattner needed to go out of the centre?---Yeah, I think that what I got from Yvonne was because there had been some other clinical matters that it would be the best option.

 

Well, the truth of the matter is that all Ms Prince did was give you some advice that that was an option that could use if you wished?---Yeah. That’s right. Yeah.

Put the decision back on you and you were keen enough to take up that option that that’s what was executed?---If that’s – if that’s the advice that we get, yes. I’m happy to accept the advice. They’re the experts.[41]

 

  1. [372]
    The probability that Ms Finley would act on Ms Prince's advice or defer to Ms Prince's expertise was made evident in the affidavit evidence of Ms Prince on 4 March 2019 when she described her expertise in the following terms:

 

My job entails providing specialist advisory and consulting services to Human Resource Business Partners and delegates across the Health Service in relation to complex industrial and workplace relations matters including discipline, investigations, grievances, appeals, public interest disclosures, performance management and official misconduct.

 

  1. [373]
    Thirdly, while the respondents may have formed a prima facie view that the allegations might be correct, they never purported, in making their decision to place Ms Mattner on alternative duties, that they had completed an investigation into the 25 November 2018 Hesse allegations. The respondents had consistently informed Ms Mattner and the QNMU that decisions taken to suspend and transfer were taken pending an investigation into the pathology slip and VMO allegations. The respondents were always careful in stating that no conclusion had been reached and would not be reached until the investigation was completed.

 

  1. [374]
    In Ms Giles' 3 December 2018 correspondence, she informed Ms Mattner that she would remain in her alternative position "until further enquiries can be made into the allegations and the outcome of those enquiries have been considered". The respondents had also committed to an expeditious investigation. In Ms Giles' 5 December 2018 email to the QNMU, she said inter alia that "We undertake to expedite our enquiries into the concerns raised so that all the relevant information can be presented to Ms Mattner for her response and so that these concerns can be resolved as quickly as possible".

 

  1. [375]
    Finally, it is relevant that in making the decision to suspend Ms Mattner, the respondents took the precaution of not acting pursuant to disciplinary provisions, but acted pursuant to s 137 of the PS Act. Under this section, before suspending the applicant or placing her on alternative duties, the respondents were required to satisfy themselves that the proper and efficient management of the health service might be prejudiced if the applicant were not suspended. In my view this belief was formed on an emerging pattern of concerning conduct on the part of the applicant, and not solely on the Hesse allegations.

 

  1. [376]
    In the proceedings, no serious challenge was launched by the applicant to the effect that the discretion exercised by the respondents pursuant to s 137(1) of the PS Act had not been validly exercised.

 

  1. [377]
    In my view, while Ms Bradley and Ms Finley were part of the decision making process  dealing with the response to Ms Hesse's 25 November 2018 complaint, the process was mainly dependent on advice provided by Ms Prince and Ms Trayling who took the lead role in tactical decision making and compliance issues. Ms Finley's involvement in the matter ended on 7 December 2018 which was her last day at work before she proceeded on a period of annual leave.

 

  1. [378]
    The decision-making process was not susceptible to any misrepresentation around the underpinning facts which were, in large part, evident to all the decision makers by reference to the documentary evidence. Further, any failure on the part of Ms Finley, Ms Bradley or Ms Hesse to more rapidly determine the underpinning truth of the allegations, was irrelevant to the decision taken to suspend which was taken on the premise that the Hesse allegations may be true and that the truth of the allegations was made more likely by reference to the extent and nature of past complaints. 

 

Correctional centre visit

 

  1. [379]
    Ms Finley said in her affidavit that she was aware of the Minister's attendance at the Brisbane Correctional Centre on 21 November 2018 and that she subsequently became aware that the Minister would meet with nurses. She did not attend the Brisbane Correctional Centre on the day of the Minister's visit.

 

  1. [380]
    While Ms Higgs participated in the Minister's visit, she did not include in her affidavit any information about the closed meeting, nor about who participated in the closed meeting. Ms Semple said in her 20 March 2019 affidavit that nurses from the prison health service including the applicant, and the QNMU, met with the Minister for Health on 21 November 2018.  The applicant said in her 17 May 2019 affidavit that prison nurses were invited to attend a meeting with the Minister.

 

  1. [381]
    It is not in dispute that the Health Minister arrived at the Brisbane Correctional Centre at around 11.15 am on 21 November 2018. While the run sheet relevant to the visit was alluded to in an email trail in the evidence as Exhibit 16, the run sheet was not entered into the evidence. The subject matter in the email trail referred to the Minister's West Moreton Hospital and Health Service Prison Visit, while the trail itself disclosed that a QNMU representative would participate in the visit.

 

  1. [382]
    On my review of the email trail, it appeared that at some point on 20 November 2018, the Director of Communications for the health service provided a copy of the run sheet to Ms Freeman, Ms Curtis and Ms Finley. Ms Finley then forwarded the document to Mr Shaddock. Mr Shaddock responded to this email at 6.02 pm on 20 November 2018 and informed various recipients that the QNMU had indicated that a QNMU group would attend the site for the purpose of conducting a meeting with the Minister; that neither he nor Ms Finley had any visibility in terms of who was co-ordinating the meeting; that Ms Finley had indicated that, given the numbers, she would "drop off the planned activity"; and that "if the situation does not alter again", the site visit would be restricted to the Reception Store and Health Centre, following which the QNMU delegates would meet with the Minister. The email trail suggests that there was a degree of last-minute planning and some confusion about what was to happen on the day of the Minister's visit.

 

  1. [383]
    The applicant relied on the email trail and Ms Finley's evidence that she knew that an acting NUM, Ms Burton, was excluded from the Minister's meeting, to submit that a finding should be made that Ms Finley was aware that the Minister was meeting a delegation of QNMU members and that the meeting was to be a closed meeting. However, I accept Ms Finley's evidence that her initial information was to the effect that the Minister was only going to visit the Brisbane Correctional Centre and that she had received late notice that a QNMU meeting would be held. Consistent with this flow of information, Ms Finley asserted that she did not know, until after the event, that the meeting was to be a closed meeting.

 

  1. [384]
    While Ms Burton was excluded from the meeting, it is not known when she became aware that the meeting was a closed meeting and that she was not allowed to participate. However, the fact that Ms Burton apparently intended to participate in the meeting and was subsequently excluded, indicates that she was not aware in advance that the meeting was a "closed" meeting.

 

  1. [385]
    There is no evidence that Ms Finley knew anything about who would participate in the meeting, who called the meeting, and what was the purpose of the meeting.  Because she was involved in the preparation of the "gate list", Ms Finley did know something about external parties attending, including QNMU officials, but she had no visibility of which staff from the health service were attending.

 

  1. [386]
    Ms Curtis was the only health service management representative to participate in the Minister's visit. It was her evidence that the Minister was taken for a walk around the correctional facility and that, following the tour, the closed QNMU meeting was held. The effect of Ms Curtis' evidence in the proceedings was that while Ms Higgs was present during the Minister's visit, she was not aware of which prison health service staff participated.

 

  1. [387]
    While Ms Mattner said in her 10 December 2018 affidavit that she was aware that management knew that she attended the Minister's meeting, I decline to accept this evidence for a number of reasons. Firstly, Ms Mattner did not explain how she became aware, or who it was in management who knew that she attended the meeting. Secondly, there was no attempt in the proceedings to elevate this statement beyond the status of hearsay evidence. Thirdly, only Ms Curtis participated in the Minister's visit and she did not know which staff attended the closed QNMU meeting. Fourthly, concurrent with the Minister's visit, a Senior Management Meeting was being held at the Park from 10.15 am to 11.45 am. Fifthly, all of the respondents' witnesses testified to the effect that they did not know who attended the closed meeting. Finally, Ms Mattner was not rostered to work on the day of the meeting, and she did not need to ask permission to attend the meeting.

 

  1. [388]
    The evidence does not support a finding that any of the respondents knew that Ms Mattner attended a meeting with the Minister on 21 November 2018.

 

Complaints received by NUM Dwyer on 19 November 2018

 

  1. [389]
    Ms Polmeer had followed up on her oral complaint to Ms Dwyer on 19 November 2018 by emailing two file notes detailing her concerns about Ms Mattner. The documents were emailed to Ms Dwyer on 21 November 2018 who in turn had forwarded the material to Ms Bradley and Ms Trayling on 22 November 2018. The material, which is in the evidence as Annexure YP-2 to Ms Prince's 15 April 2019 affidavit, is listed below:

 

  • An email from Ms Polmeer sent to Ms Dwyer on 21 November 2018;
  • A file note prepared by Ms Polmeer on 20 November 2018 alluding to various events including an incident involving the applicant during the previous week (some time in the week commencing 12 November 2018);
  • An unsigned file note dated 20 November 2018 about a patient with acute back pain.

 

  1. [390]
    In her complaint, Ms Polmeer had stated that she had not previously encountered "such a level of unprofessionalism" and she identified Ms Mattner as a central figure when it came to unprofessional conduct. Included in the matters complained about by Ms Polmeer was a statement that Ms Mattner "has campaigned actively against Lorraine Reid" and had held staff meetings "telling staff to stick together against" Ms Reid. Ms Polmeer indicated that she intended to raise the contents of the file note with the Verifact investigator that week.

 

  1. [391]
    Ms Mattner had defended herself against Ms Polmeer's allegations in her 18 April 2019 affidavit. In her affidavit, Ms Mattner said that Ms Polmeer was very critical of the way things were done at Wolston Park; that Ms Polmeer "talked down to her"; and that she had shown "contempt for prison nurses". Ms Mattner also observed that Ms Polmeer had no experience in working in prisons; that prison nursing was undertaken in a very different setting to other environments; and that a number of things have to be done differently in a prison environment.

 

  1. [392]
    Ms Dwyer said in her 17 May 2019 affidavit that her substantive position was as a Nurse Unit Manager at the Brisbane Correctional Centre. She had commenced working at the Wolston Correctional Centre in a relieving capacity from 15 October 2018 for the purpose of covering for Ms Reid who had been moved off site following the complaints made about her and during the course of the Verifact investigation.

 

  1. [393]
    In submissions, the applicant criticised Ms Dwyer for providing Ms Finley and Ms Bradley with a copy of the complaints. It was the applicant's view that Ms Dwyer should not have made a record of the complaint and should not have copied Ms Finley, Ms Bradley and Ms Koch with the complaint details. Rather, it was put to Ms Dwyer that as a "general principle", when a complaint is made, the first thing a manager should do is deal with, and resolve, the complaint. This was the effect of Ms Mattner's evidence when she said that complaints were dealt with in that manner in her experience. 
  2. [394]
    At this point Ms Dwyer was drawn into the conspiracy woven by the applicant and it was asserted that there was no plausible explanation for Ms Dwyer passing on the Polmeer complaints to Ms Bradley, Ms Finley, or HR "except that it formed part of an exercise to build a dossier" on Ms Mattner, and that Ms Dwyer was part of the exercise.

 

  1. [395]
    While Ms Dwyer accepted in her evidence that the normal course of action in the event of a complaint was in the first instance to try to resolve the issue informally, she did have plausible reasons for electing to pass on the complaints to Ms Finley, Ms Bradley, and HR:

 

  • Ms Dwyer's involvement at WCC was for a limited period and it was appropriate that she apprise others of a significant human resource issue;
  • Ms Dwyer had received Ms Polmeer's material either on 19 November 2018 or 21 November 2018 and only a few days before she was to commence one weeks' annual leave on 23 November 2018. There was limited time in which to make enquiries and get a response from Ms Mattner;
  • It was necessary to inform Ms Bradley of the complaint because Ms Bradley was assigned to relieve Ms Dwyer when she commenced her annual leave; 
  • In a context where Ms Dwyer knew that an investigation into workplace issues was underway, she considered the appropriate course was to pass the information on to Ms Finley, Ms Bradley and Ms Koch from human resources.

 

  1. [396]
    In my view, in circumstances where Ms Dwyer was employed at WCC on a temporary assignment, where Ms Dwyer was about to commence a period of leave, where she was to be relieved by Ms Bradley while on leave, where her association with the complaints was likely to be curtailed by a lack of continuity, and where the seriousness of the allegations necessitated a referral of the complaints to senior management and HR, it was both appropriate and necessary for Ms Dwyer to refer the complaints to HR and to Ms Bradley and Ms Finley.

 

  1. [397]
    These were the substantial and operative reasons for Ms Dwyer's decisions associated with the Polmeer complaints. Ms Dwyer's reasons for her decisions did not include a prohibited reason. 

 

Antipathy toward union

 

  1. [398]
    The applicant submitted that possible disaffection or antipathy toward union activities was made more likely by friction caused by a long running industrial campaign being waged by the QNMU and which was causing operational disruption for the health service. Relevant to the applicant's participation in and support for the campaign, the applicant argued that the evidence supported inferences being drawn to the effect that:

 

  • Both Ms Finley and Ms Bradley were aware of the applicant's advocacy in support of a stop work meeting and her outspokenness at the branch meeting on 19 November 2018;
  • That Ms Finley was aware that the applicant attended the Minister's meeting on 21 November 2018; and
  • Ms Finley and Ms Bradley had an unfavourable attitude toward the union and the applicant because of the applicant's conduct on 19 November 2018 and because she attended the meeting on 21 November 2018.
  1. [399]
    The applicant said that the drawing of the inferences was justified on the following facts:

 

  • Ms Bradley's claim that she had been excluded from union meetings;
  • Ms Bradley's refusal to acknowledge any collaboration or consultation with Ms Burton, Ms Finley and Ms Dwyer about resignation from the QNMU;
  • The resignation of Ms Finley, Ms Bradley, Ms Burton and Ms Dwyer from the QNMU;
  • Ms Finley's evasiveness when asked whether she knew that the Minister's meeting on 21 November 2018 was a closed meeting and her failure to acknowledge that she and Dr Henderson had an interest in the outcome of the closed meeting;
  • Ms Finley did not accept that the management concern was about "wound up" staff and instead maintained that the interest was in funding;
  • Ms Finley was aware that Ms Burton had been excluded from the Minister's meeting;
  • Ms Finley's direction that staff not attend meetings at other correctional centres.

 

QNMU campaign

 

  1. [400]
    The applicant promoted the view that a QNMU campaign intended to address chronic problems in the prison health system was the cause of frayed relationships between QNMU members and the health service. These frayed relationships made it more likely that the respondents were motivated to take reprisal action against the applicant when her advocacy for union causes and campaigns came to the attention of the health service.

 

  1. [401]
    On the QNMU narrative, the setting for the adverse action was a workplace environment in which escalating industrial disharmony was occurring because of increases in workload and working hours caused by an increasing prison population and overcrowding. The disharmony has yet to be resolved and related events included a ministerial intervention and a Crime and Corruption Commission investigation. In her 10 December 2018 affidavit, the applicant said that nurses at the centre had been performing excessive overtime and enduring chronic staff shortages for the last 12 to 18 months.

 

  1. [402]
    I am reluctant to attach any significant weight to the applicant's scene setting narrative because it is not clear to me on the evidence that the health service and the QNMU were the principal antagonists in any industrial disharmony. There may have been things that the health service could have done to placate the QNMU but, on the evidence, the remedy to the matters of concern to the QNMU went well beyond the capacity or jurisdiction of the health service. This reasoning is derived from a consideration of Exhibit 15 (PWC Offender Health Services Review Report) which, in its key findings, identified a number of "unaddressed systemic challenges" which are listed below:

 

  • An increase in total prisoner numbers of 19.4 per cent on an average annual head count basis between 2015 and 2018 (including prisoners in public and private prisons)0F3 1F4
  • Overcrowding of the prisoner population, with most correctional centres operating above built capacity
  • The consequences of overcrowding, including the need for QCS to change their processes in order to maintain safety and security
  • The continued use of a historic funding model that may no longer reflect the costs of service delivery at correctional health centres
  • Complex health needs of prisoners
  • The nature of different correctional centres (eg reception centres versus placement centres) drives variation in workload and cost.
  • The lack of suitable infrastructure within which to deliver health care services
  • Conflict between the corporate objectives of QCS and the delivery of health services.

 

  1. [403]
    Having identified the challenges, the report concluded in effect that the challenges cannot be overcome by an individual offender health service or even a single health service:

 

These system-wide challenges cannot be addressed by an individual clinician, an individual offender health service, or even a single HHS; rather they require system leadership.

 

  1. [404]
    The health service delivers offender health services under a service agreement entered into with Queensland Health. While the applicant provided some extracts from the service agreement,[42] these extracts did not disclose the extent and nature of the health service's accountabilities.

 

Low priority task list

 

  1. [405]
    The applicant submitted that Ms Mattner's advocacy around the low priority task list and a stop work meeting was a matter of substantial moment and her advocacy would have increased the probability of reprisal. There was little direct evidence supporting a proposition that either a stop work meeting or the development of a low priority task list were matters which would cause significant operational disruption to the prison health service, and both Ms Finley and Ms Dwyer rejected any suggestion that they would have engaged in reprisal action because of Ms Mattner's advocacy.

 

  1. [406]
    Ms Finley rejected the insinuation that as a manager she would resent union interference and any disruption caused by a union arranged stop work meeting. It was Ms Finley's evidence:

 

And my question to is, as the manager that has to deal with it, there is an inherent conflict – isn’t there – in your role as manager delivering the services and the union and its members advocating for or taking stop-work meeting action, isn’t there?---There’s not conflict. People are en – entitled to – to take action. And if we were notified of that action, there would be a meeting of more than just myself to look at how we would manage that at any given time.

 

So that’s your answer to that question?---Yes. Well, we’re – we’re talking hypothetically. The – people are – they’re entitled to – to take action. And if we got notification of that – but then we were just – it – it would be probably to the CE, I imagine, and then it would come down and – and there would be a meeting about how we would manage that, and notifications we would make in terms of delivery of patient care.

 

Which is your primary concern – isn’t it – in the delivering services – delivering patient care?---Yeah, we – we – we do need to deliver patient care, yes.

 

And if the union, on behalf of its members, is advocating industrial action, that conflicts with the delive – delivery of patient care?---Yes, depending on the when and the timing and – and – and how we would – and then we would work through how we would manage that.[43]

 

  1. [407]
    In terms of the low priority task list, while Ms Finley expressed a concern about the implications for individual staff if they declined to provide patient care in what was, or would later be found to be, emergent circumstances, Ms Dwyer said in effect that it was business as usual if nurse managers were required to deal with a low priority task list:

 

And you don’t want, as a Manager, to have to deal with low priority task lists, do you?---They don’t worry me at all.

 

They don’t worry you at all?---No.

 

And the tasks are not done and that’s of no concern whatsoever?---We prioritise our work. We’re a primary health care centre.

 

But you’re not worried in the least the tasks don’t get done if they’re low priority?---We prioritise to another day.

 

And there’s a clash between that, isn’t there, in your mind between a low priority task list and patience safety?---No.

Isn’t it?---No, there’s not.[44]

 

  1. [408]
    The minutes of the Senior Management Meeting on 21 November 2018 (Annexure MF-19 to Ms Finley's affidavit) disclosed, at Item 7.3, that a low priority task list was issued by the QNMU on 16 October 2018. While Ms Mattner may have supported the continuation of the task list on 19 November 2018, it is not known whether the task list changed or became more onerous to comply with after the 19 November 2018 meeting.

 

  1. [409]
    There is insufficient evidence to support a finding that Ms Mattner's advocacy around the low priority task list would have been viewed by the respondents as an issue of significant consequence and would have motivated the taking of adverse action.

 

Ms Finley's email exchange

 

  1. [410]
    The applicant submitted that the health service's sensitivity to the outcomes of union meetings or the Minister's meeting was on display in an email exchange between Dr Henderson and Ms Finley and others on 21 November 2018 (Annexure MF16 to Ms Finley's affidavit). The email exchange commenced with Ms Finley distributing a copy of a QNMU notice convening a meeting the following day. The meeting was convened for the purpose of updating members on the outcomes of the Minister's meeting.

 

  1. [411]
    While the applicant sought to draw inferences of improper conduct from the email exchange, in my view, no such inferences are available. Senior management of the health service had entirely legitimate reasons for demonstrating an interest in the union meeting. Firstly, because it could throw light on the outcome of the Minister's meeting including any discussion around funding, and secondly because of the need to plan for any operational disruption.

 

  1. [412]
    The applicant also proposed that the email exchange demonstrated an improper interest in the outcome of the Minister's meeting. In this regard, Dr Henderson had replied to Ms Finley's email and had, inter alia, asked Ms Finley where things were up to as a result of the Minister's visit. In response, Ms Finley had told Dr Henderson that she had no information about the meeting other than that it was a "closed meeting". She added that the QNMU had called a meeting for lunchtime the next day.

 

  1. [413]
    I have a significant difficulty in accepting the applicant's reasoning around the management interest in the Minister's meeting. I prefer Ms Finley's evidence which was to the effect that her significant interest in the outcome of the Minister's meeting at the Brisbane Correctional Centre was whether additional funding for the health service would be released. There is nothing in the email trail that suggested that Ms Finley knew, or was interested in, who attended the union meeting, or that she was in any way disaffected by the conduct of the meeting. It seems to me that if the meeting, and the QNMU campaign, contributed to the release of additional funding to the health service, the interests of the QNMU and the health service could be said to be aligned.

 

Resignations from QNMU

 

  1. [414]
    The applicant's submission was to the effect that the resignations from the union reflected a developing antipathy toward the union on the part of Ms Finley and particular nurse unit managers, and an antipathy which was related to union activities around the same time including the applicant's involvement in union activities and her advocacy supporting particular campaign activities promoted by the QNMU.

 

  1. [415]
    The applicant did not accept the evidence of Ms Bradley and Ms Finley that they had resigned as members of the QNMU because the alternative association's fees were much less than the fees charged by the QNMU. Rather a narrative was preferred to the effect that the resignations demonstrated a hostility toward the QNMU and a bias against Ms Mattner because of her active involvement in the union.

 

  1. [416]
    This narrative is not sufficiently connected with the facts to be accepted. Firstly, both Ms Dwyer and Ms Finley had resigned from the union prior to Ms Mattner exercising a workplace right or participating in an industrial activity.  Further, while affidavits in the proceedings were filed by three QNMU officials, none testified about a history of anti-union sentiment being evident in their relationships with Ms Finley, Ms Bradley, Dr Henderson or Nurse Unit Managers (other than Ms Reid) employed by the health service prior to December 2018. There is also no evidence that the QNMU was concerned by the resignations when they occurred. Despite the competition provided by the alternative association, evidence was not adduced to the effect that the QNMU responded to the resignations, sought reasons for resignation, or in any way tried to retrieve the situation.

 

  1. [417]
    It was also suggested that Ms Bradley, Ms Finley, Ms Dwyer and Ms Burton collaborated in arriving at individual decisions to resign their memberships. In this regard, Ms Finley said that she may have discussed the matter with Ms Dwyer, but Ms Bradley denied discussing her decision to resign with anyone. Ms Burton did not give evidence in the proceedings, but her resignation came soon after she had expressed her displeasure at the manner in which the QNMU had conducted its branch meeting on 19 November 2018 and had been excluded from the QNMU meeting with the Minister on 21 November 2018. It may be open to conclude that these experiences, which were unique to Ms Burton, would have contributed to Ms Burton's decision to leave the union.

 

  1. [418]
    I am not inclined to accept the applicant's perspective on the resignations. Firstly, the chronology does not suggest any co-ordination or collaboration. Ms Dwyer had resigned from the QNMU in August 2019, Ms Finley in September 2019, and Ms Bradley in November 2018. I accept that it was likely that there was general awareness across the nursing community of the entry into the market place of the Nurses Professional Association of Queensland (NPAQ) and that there may have been some general discussion about the NPAQ between Nurse Unit Managers. Consistent with this, there may also have been some general awareness of who had resigned or intended to resign from the QNMU, but this does not mean that resignations were the product of collaboration or co-ordination. Secondly, a substantial leap in deduction is required to establish that decisions about membership of the QNMU translated into vindictive acts against the interests of Ms Mattner. Thirdly, the decision of Ms Dwyer and Ms Finley to resign from the QNMU preceded the relevant events involving Ms Mattner and there could be no causal association between the resignations and the events. Further, if Ms Finley were motivated to harm Ms Mattner, such a motivation was not apparent in the health service's response to Ms Mattner's 8 October 2018 complaint.

 

  1. [419]
    Ms Burton had resigned from the QNMU on 22 November 2018, one day after she was refused entry to the Minister's meeting and three days after she had complained to the QNMU about the conduct of the 19 November 2018 QNMU branch meeting. After the 19 November 2018 meeting, Ms Burton directed the following email to Sally Higgs at the QNMU:

 

Hi Sally,

I just wanted to voice my concerns regarding the QNMU meeting we just held via teleconference.

It appeared that one person overtook the meeting and spoke on behalf of all members, when this was not the case.

 

When you asked people to raise their hands, I saw only about half or even less than half of the members at BCC raise their hands to support a stop work meeting. I certainly am not comfortable with a stop work meeting and therefore did not raise my hand in support of this.

 

I think to be fair to people too scared to speak up in a dominant group, it would be better for staff to be emailed with the planned action proposed and a vote conducted.

 

I am also concerned that the low task priority list was made again with not all members having a say. I recognise this list from some time ago and again feel that not all members got a draft version to make comment on/or suggestions. I know as a member I only got the final version. I do not agree to everything on the low priority list.

 

I am happy to support appropriate action that does not impact patient safety or my job security with PHS.

 

Kind regards,

Kelly

Kelly Burton

  Acting Nurse Unit Manager | Prison Health Services

 

  1. [420]
    It may well be that, in sending this email, Ms Burton is disclosing some of her reasons for resignation from the QNMU. But there is nothing irrational or unreasonable about the manner or substance of her communication. She raised what she believed to be valid concerns about the conduct of the meeting and about the union's selective distribution of drafts associated with the low priority task list. There is no evidence that the QNMU provided a response to Ms Burton. Two days later, Ms Burton was excluded from the Minister's meeting. It is not surprising that Ms Burton exercised her right to withdraw from the Union.  

 

 

 

Compliance breaches

 

  1. [421]
    A Prison Health Services Senior Management Meeting was held on 21 November 2018 commencing at 10.15 am. The minutes of the meeting are in the evidence as Exhibit 6. The minutes include at Item 5.2 a record of a discussion about compliance breaches relative to the Corrective Services Act. The minutes included the following statement:

 

People need to be aware that they are not to be on site in any centre, that they are not employed to work in and within the hours they are employed to work. Staff must have business to be at a centre, visits are not allowed.

 

  1. [422]
    An action item resulting from the discussion was that Nurse Unit Managers were to highlight compliance obligations at health centre team meetings.

 

  1. [423]
    Ms Mattner said that following the meeting, NUM Dwyer informed nurses, including herself, that they were not to attend other centres on their days off, or at any other time, to hold meetings to discuss work-related issues.

 

  1. [424]
    In her affidavit, Ms Dwyer said that at the Senior Management Meeting held on 21 November 2018, Ms Finley instructed participants to inform nurses that they were not to attend other correctional centres without lawful authorisation or purpose. Nurse were also not permitted to attend at their own centres on their non-rostered days. Such actions were said to involve compliance breaches and breaches of s 164 of the Corrective Services Act 2006.

 

  1. [425]
    It was Ms Dwyer's evidence that she informed staff of the compliance requirements at a staff meeting of nurses on shift at Wolston on 23 November 2018. The minutes of the staff meeting are in the evidence as Annexure ED-2 to the affidavit of Ms Dwyer. Item 7.1.4 of the minutes confirm that the instruction was passed on to staff. This item of the minutes also noted that Ms Dwyer told attendees that the "access for union meeting/teleconferences is still being clarified".

 

  1. [426]
    Ms Finley confirmed that she had directed NUMs to advise staff of the rules pertaining to visits to other centres. She said that she did this because she had received an email on 4 October 2018 in relation to governance, risk and compliance which included compliance information relating to staff visiting other correctional centres. Her evidence was to the effect that the information made clear that nursing staff were not to attend any correctional centre on their days off or any correctional centre where they were not rostered to work. Ms Finley said that she subsequently sought confirmation of her understanding of the compliance regime on 30 November 2018 and was informed that her understanding was correct.

 

  1. [427]
    While Ms Finley said that the timing of her instruction relating to staff movements was in response to a reminder that she had received about compliance requirements six weeks earlier, I accept that she may also have been prompted to issue the instruction because of possible breaches of compliance associated with staff attendances at the Minister's meeting. If this be the case, I can see nothing improper about Ms Finley's course of action. If it were known that staff had attended the meeting at the Brisbane Correctional Centre without appropriate authorisation, she was obliged to address the issue.

 

 

Summary and Conclusion

 

  1. [428]
    The central question to be answered in the determination of the appeal is why was the adverse action taken? It is for the respondents to articulate their reasons for taking the adverse action and to prove, on the balance of probabilities, that these reasons should be preferred to any other reasons which are advanced and which suggest that the adverse action was taken for a prohibited reason or for a reason including a prohibited reason. It is the identification of the substantial or operative reason for taking adverse action that is critical enquiry.

 

  1. [429]
    In its simplest form, the adverse action involved decisions taken by the respondents to investigate allegations made against Ms Mattner. A consequence of the primary decisions to investigate, was that secondary decisions were made pursuant to s 137 of the PS Act to suspend Ms Mattner and place her on alternative duties at a different work location. For reasons already given, the secondary decisions made under s 137 of the PS Act do not constitute adverse action.

 

  1. [430]
    If the decisions to commence investigations constituted adverse action, then the central question becomes whether the respondents' reasons for making the decisions that they did, are accepted as reliable. That is, that the reasons are accepted as constituting the true reasons for why decisions were made to investigate allegations. This is a determination to be made by reference to all of the evidence in the proceedings. The determination necessarily includes consideration of evidence adduced and arguments advanced by the applicant which support propositions that the respondents' reasons are not to believed, and that it is more likely than not that the adverse action was taken for prohibited reasons, or for reasons including a prohibited reason. 

 

  1. [431]
    The respondents said that they commenced the investigations because allegations or complaints had been made against Ms Mattner, which on any objective review, required the respondents to investigate the complaints or allegations. The substantial and operative reason for taking adverse action was the perceived need or obligation to deal with complaints made about Ms Mattner and to ensure that interpersonal failures were addressed and that patient safety was not compromised.

 

  1. [432]
    An evaluation of the respondents' reasons requires particular questions to be answered. Firstly, were the complaints or allegations made against Ms Mattner of sufficient severity to warrant some form of management response. Secondly, if some form of management response was required, was a formal investigation required, or should the matters in issue have been resolved through informal counselling. Thirdly, issues of timing need to be resolved both in respect to whether or not past complaints had been acted on and addressed, and also in respect to the temporal connection between the referral of the complaints on 22 November 2018, and Ms Mattner's attendance at union meetings on 19 November and 21 November 2018. Finally, was anything improper associated with the respondents' approach to the Verifact process and with the decisions made to treat the process as a general workplace investigation suitable for consideration of complaints about Ms Mattner.

 

 

 

 

The nature or severity of the complaints

 

  1. [433]
    Between 4 October 2018 and 19 November 2018, some significant complaints or concerns had been expressed about the applicant's conduct and behaviour. Whether or not these complaints, when viewed in isolation, warranted a disciplinary response may be open to argument. What can be accepted however is that when all the conduct and behaviour complained about is reviewed, management was obliged to conduct some form of investigation into the behaviour complained about. A summary of significant complaints is set out below:

 

10 September 2018 – In a file note dated 10 September 2018, Ms Bradley emphasised that responsibility for rostering rests with the NUM and that Ms Mattner was not involved. She said Ms Mattner was not an intermediary between staff and the NUM in relation to roster development.  Ms Bradley also said that she felt "undermined by TM going to the Centre, having discussions with staff about shifts and changing the roster when she had no authority to do so". 

 

4 October 2018 complaint by Ms Hesse – An email from Sarah Hesse to Ms Finley about Ms Mattner's conduct in which patient care had been jeopardised. The complaint arose from a decision by Ms Mattner to discontinue Warfarin medication because of an upcoming procedure. Ms Hesse said that this decision contradicted current practice which was that Warfarin be decreased and not stopped. Ms Hesse said that if Ms Mattner was concerned about the use of Warfarin she should have escalated her concern. In electing to stop the use of Warfarin, Ms Mattner put a high risk patient at increased risk.

 

9 and 10 October complaints by Mr Shoenwald - An email from Mr Schoenwald to Ms Finley included allegations of intimidating behaviour by Ms Mattner in questioning the decision making of Mr Schoewald. Mr Schoewald said that he needed to ask Ms Mattner to leave the room. Mr Schoewald sent another email to Ms Finley on 10 October 2018 which included an allegation that Ms Mattner had not included in the notes an incident in which a patient who suffered frequent COPD exacerbations, had "called a code" and complained that he felt that he was going to stop breathing.

10 October 2018 complaint by Ms Kimlin – An email from Ms Kimlin to Ms Reid included allegations against Ms Mattner, including that Ms Mattner was continually undermining directions given by Ms Reid.

 

11 October 2018 complaint by Mr Schoewald - In a further email to Ms Finley dated 11 October 2018, Mr Schoewald elected to summarise what he described as "some major bullying and slander issues".

 

His summary captured incidents occurring from July 2018 to the 10 October 2018 incident that was dealt with in his separate email of that date. In all, this summary email included commentary on 13 incidents all of which involved Ms Mattner. Ms Finley forwarded the email to Ms Koch and Ms Bradley on 11 October 2018. Ms Koch subsequently forwarded the email to Kathryn White and Jen Hair in human resources.

 

15 October 2018 complaint - Ms Mattner had been counselled by Ms Dwyer in relation to this complaint. A file note of the complaint is in the evidence as Exhibit 10. The complaint related to an event in which a Nurse Practitioner had advised a registered nurse that a patient should be immediately sent to the Princess Alexandra Hospital for review. However, on the same day Ms Mattner had intervened and directed that the patient should not be sent to the PAH but should stay at Wolston where he would continue to be assessed and that the patient would be reviewed again the following day. Ms Mattner had erred by not following the Nurse Practitioner's advice in the first instance, and then if she believed that circumstances warranted the advice not being followed, in not discussing the matter with the Nurse Practitioner before electing not to send the patient to the PAH.

 

19 November 2018 complaints - Ms Dwyer emailed Ms Finley and Ms Bradley on 20 November 2018 in which a file note prepared by Ms Dwyer was attached. The file note is a record of a discussion between Ms Dwyer and Ms Polmeer on 19 November 2018. Ms Dwyer said that Ms Polmeer had arranged to see her regarding concerns she had about the Wolston Correction Centre. The file note recorded multiple complaints against Ms Mattner. 

 

Ms Dwyer received a further email from Ms Polmeer on 21 November 2018 which included two file notes. The covering email referred to a deep concern for patients and for the writer's own professional safety. One of the file notes related to a discussion between Ms Polmeer and Ms Mattner about the distribution of S8 medication. It was alleged that during the discussion Ms Mattner became upset, spoke aggressively and refused to entertain any change to the current procedure. The issue escalated and it was claimed that Ms Mattner made personally insulting remarks, told Ms Polmeer that she gave her the "shits", and said that she did not like working with Ms Polmeer.

 

  1. [434]
    In my view the complaints were serious in that they alleged an unacceptable disregard for directions given by nurse practitioners, an unacceptable disregard for patient care, and significant interpersonal failures.

 

Was the response to the complaints proportionate?

 

  1. [435]
    The complaints as individual items, do not appear to have been addressed or adequately addressed in most instances. The opportunity for the informal resolution of minor issues had passed and the overriding consideration was whether the complaints history required a response of some substance. It would have been a failure of management had this not occurred.

 

  1. [436]
    The number of the complaints and complainants, the severity of the complaints, and the implications for team work, operational efficiency and patient care support a conclusion that a formal investigation was warranted and that the use of an external investigator to review complaints and investigate allegations was appropriate.

 

Temporal considerations

 

  1. [437]
    The effect of the applicant's submission was that in circumstances where Ms Finley had no legitimate reason to act on historical complaints, her decision to refer complaints to HR soon after Ms Mattner had attended union meetings, was most likely motivated by an improper purpose.

 

  1. [438]
    The effect of Ms Finley's evidence was that there was no connection between her decision to refer the complaints on 22 November 2018 and Ms Mattner 8 October 2018 complaint and her participation in industrial activities on 19 and 21 November 2018. Apart from her denial that she did not refer the complaints for a prohibited reason, and that she did not know that Ms Mattner had attended union meetings, the timing of the referral was attributed to (a) her absence on annual leave and her failure to action particular complaints before she went on leave; (b) the receipt of another complaint soon after her return from annual leave; (c) the fact that on her return from annual leave she had over 1,000 emails to respond to and that this volume of emails delayed her actioning the outstanding complaints until on or around 22 November 2018; and (d) that she was prompted to address the complaints about Ms Mattner in a conversation that she had with Ms Prince on the morning of 22 November 2018. In regard to this latter consideration, Ms Prince provided corroborating evidence.

 

  1. [439]
    I do not find these explanations to be implausible. On objective review, action on unattended complaints had been delayed by Ms Finley's absence on annual leave and it would have been apparent to Ms Finley on her return from leave that the complaints needed evaluation and review. Her actions were consistent with this imperative.

 

Was the Verifact investigation manipulated for improper reasons?

 

  1. [440]
    The Verifact investigation was conducted by Ms Suarez from the start as an investigation which included consideration of all workplace issues at the Wolston Correctional Centre and was not confined to a consideration of complaints made against Ms Reid.

 

  1. [441]
    Ms Bradley did not change the course of the Verifact investigation on 8 November 2018. When she said that that she wanted the Verifact interview list to be more representative, she most likely meant that she wanted the views of nurse practitioners to be heard. In so doing I accept that she knew that some of the nurse practitioners had concerns about both the interpersonal and professional conduct of Ms Mattner. To the extent that she facilitated the introduction of complaints against Ms Mattner however, she did not do so because Ms Mattner had exercised a workplace right.

 

  1. [442]
    Ms Finley was direct in asserting that she considered it appropriate to use the Verifact process to investigate complaints about Ms Mattner. Given my finding that the decision to investigate the complaints was justified, and given Ms Suarez's evidence to the effect that it was intended that the Verifact process listen to all workplace complaints, there was nothing irregular or improper in Ms Finley acting as she did.

 

 Decision

 

  1. [443]
    The evidence does not support a finding that Ms Bradley's decision to add to the Verifact interview list on 8 November 2018 was causally associated with the exercise of a workplace right by Ms Mattner.

 

  1. [444]
    The proposition that Ms Finley was motivated by a prohibited reason in addressing complaints made against Ms Mattner or in responding to the 25 November 2018 Hesse allegations is not supported by a factual matrix in which, at least since September 2018, concerns and complaints had been expressed in regard to Ms Mattner's conduct and behaviour and that the complaints disclosed a pattern of alleged behaviour which inevitably would have attracted attention and required review or investigation.

 

  1. [445]
    It was unlikely that Ms Finley knew on or before 22 November 2018, about Ms Mattner's participation in the 19 November 2018 or 21 November 2018 union meetings and her reasons for referring complaints to HR for consideration and advice are consistent with the factual matrix.

 

  1. [446]
    In circumstances where Ms Finley's explanations for acting are accepted, the temporal coincidence connecting Ms Finley's decision to refer complaints with Ms Mattner's attendance at union meetings, is not sufficient to sustain the proposition that Ms Finley was motivated by improper reasons.

 

  1. [447]
    The responses to the 25 November 2018 Hesse complaints were predominantly guided by HR, and decisions on how to respond were made collaboratively on the documentary evidence, including the 6 December 2018 Verifact report. Neither Ms Finley nor Ms Bradley made a disproportionate contribution, and given the factual foundation for acting, it is unlikely that they altered the course of the decision-making process by making false representations.

 

  1. [448]
    The evidence supports a balance of probabilities finding that the substantial and operative reason for commencing the Verifact Part B investigation was the pattern of complaints made against Ms Mattner and the extent and nature of those complaints.

 

  1. [449]
    The evidence also supports a balance of probabilities finding that the respondents' reasons for commencing an investigation into the allegations made by Ms Hesse on 25 November 2018 were the existence of the complaint itself, Ms Mattner's complaint history, and the implication in the complaints for patient care.

 

  1. [450]
    The evidentiary platform supports a conclusion that the substantial and operative reason for the taking of adverse action was the respondents' obligation to respond to complaints made about Ms Mattner and to have those complaints appropriately investigated. The respondents' reasons for taking adverse action did not include prohibited reasons.

 

  1. [451]
    The application is dismissed.

 

Order for suppression

 

  1. [452]
    The Commission makes the following order for suppression:

 

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

 

Industrial Relations Act 2016

 

Queensland Nurses and Midwives’ Union of Employees

Applicant

 

v

 

West Moreton Hospital and Health Service

First Respondent

 

Marie Finley

Second Respondent

 

Michelle Giles

Third Respondent

 

Bretine Curtis

Fourth Respondent

 

APPLICATION TO DEAL WITH A DISPUTE PURUSUANT TO SECTION 309

 

Matter no. GP/2018/29 and GP/2019/3

 

CONSENT ORDER

 

FURTHER to the Hearing before Industrial Commissioner Black on 2 October 2019, IT IS ORDERED THAT:

 

  1. Pursuant to s 580 of the Industrial Relations Act 2016, until further order, the Verifact Report and the attachments to the Verifact Report marked as Exhibit 17 in the proceedings are:
    1. not to be published;
    2. withheld from release or search.

 

 

Dated 3 April 2020

Footnotes

[1] Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1, 60.

[2] Commonwealth Bank of Australia v Finance Sector Union of Australia (2007) 157 FCR 329.

[3] T2-24.

[4] T2-28.

[5] Shea v TRUenergy FCA (2014) IR 242.

[6] Ibid.

[7] SZTAL v Minister for Immigration and Border Protection [2017] HCA 34

[8] Darlington v State of Queensland (Queensland Police Service) [2016] ICQ 020.

[9] Construction, Forestry, Mining and Energy Union v Rio Tinto Coal Australia Pty Ltd [2014] FCA 462.

[10] Construction, Forestry, Mining and Energy Union v De Martin & Gasparini Pty Limited (No 2) [2017] FCA 1046.

[11] Macquarie Dictionary 6th edition (2013)

[12] Affidavit of Tanja Mattner dated 17 May 2019.

[13] T5-67.

[14] Foster v Secretary to the Department of Education and Early Childhood Development (Vic) [2008] VSC 504.

[15] Exhibits 9 and 10.

[16]  T2-32.

[17] Automotive, Food, Metals, Engineering, Printing and Kindred Industries Union and Another v Visy Packaging Pty Ltd and Others (No 3) [2013] FCA 525.

[18] Kimpton v Minister for Education of Victoria (1996) 65 IR 317.

[19] Jones v Queensland Tertiary Admissions Centre Ltd (No 2) (2010) 186 FCR 22.

[20] Ibid, 80.

[21] Police Federation of Australia v Nixon (2008) 168 FCR 340.

[22] Community and Public Sector Union and Another v Telstra Corporation Ltd [2001] FCA 267.

[23] Wayne Douglas Blair v Australian Motor Industries Limited [1982] FCA 143.

[24] Construction, Forestry, Mining and Energy Union v Coal and Allied Operations Pty Ltd (1999) 140 IR 131, 95.

[25]  Board of Bendigo Regional Institute of Technical and Further Education and Advancement v Barclay [2012] HCA 32.

[26]  Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500, [5].

[27] Ibid, [43]-[45].

[28] Bowling v General Motors-Holden Pty Ltd [1980] FCA 176.

[29] Ibid, [62]-[63].

[30] Ibid, [88].

[31] Ibid, [127]-[128].

[32] Bowling v General Motors-Holden Pty Ltd [1980] FCA 176.

[33] Affidavit of Ms T Mattner, 17 May 2019, paragraph 38.

[34] T3-44.

[35] T3-14.

[36] Exhibit 17.

[37] Exhibit 1.

[38] T2-17.

[39] T1-17.

[40] T2-29.

[41] T3-84.

[42] Exhibit 14.

[43] T3-39.

[44] T1-39.

Close

Editorial Notes

  • Published Case Name:

    Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service

  • Shortened Case Name:

    Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service

  • MNC:

    [2020] QIRC 49

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    03 Apr 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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