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Nesbit v Metro North Hospital and Health Service[2021] ICQ 5

Nesbit v Metro North Hospital and Health Service[2021] ICQ 5

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

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

PARTIES:

ANTHONY NESBIT

(appellant)

v

METRO NORTH HOSPITAL AND HEALTH SERVICE

(respondent)

FILE NO/S:

C/2020/9

PROCEEDING:

Appeal

DELIVERED ON:

12 March 2021

HEARING DATE:

26 October 2020

MEMBER:

Davis J, President

ORDERS:

Appeal dismissed

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES UNFAIR DISMISSAL – where the appellant was dismissed from his employment on the basis of seven allegations of contravention of the Code of Conduct for the Queensland Public Service – where the appellant applied for reinstatement alleging unfair dismissal – where the application was dismissed by the Commission on the basis that all seven allegations were proved and the dismissal was not harsh, unjust or unreasonable, for the purposes of s. 73 of the Industrial Relations Act (1999) – where the appellant appealed the decision of the Commission – whether the Commission made an error of fact, law or acted in excess or want of jurisdiction

Industrial Relations Act 2016, s 320, s 557, s 564
Public Service Act 2008
Public Sector Ethics Act 1994

CASES:

Amos v Wiltshire [2015] QCA 44, cited
Bostik (Aust) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, cited
Byrne v Australian Airlines Ltd (1995) 185 CLR 410, cited

Clyne v New South Wales Bar Association (1960) 104 CLR 186, followed
Doney v R (1990) 171 CLR 207, cited
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, followed
Elias and Issa v R (2013) 248 CLR 483, cited
Gilbert v The Queen (2000) 201 CLR 414, cited
House v The King (1936) 55 CLR 499, applied

Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388, considered
Lee v Lee (2019) 266 CLR 129, followed
Lowe v R (1984) 134 CLR 606, followed
Nesbit v Metro North Hospital and Health Service [2020] QIRC 66, related
Norbis v Norbis (1986) 161 CLR 513, followed
Postiglione v R (1997) 189 CLR 295, cited
R v Morant [2020] QCA 135, cited
R v R (1989) 18 NSWLR 74, cited
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129, cited
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679, followed

COUNSEL:

The appellant appeared on his own behalf

A Freeman for the respondent

SOLICITORS:

The appellant appeared on his own behalf

GR Cooper, Crown Solicitor for the respondent

  1. [1]
    Mr Anthony Nesbit, a registered nurse, was employed by Metro North Hospital and Health Service (the Service).  On 8 March 2019, Mr Nesbit was dismissed from his position as Nursing Director, Patient Flow Unit at the Royal Brisbane and Women’s Hospital (the hospital).  He brought an application for reinstatement to the Queensland Industrial Relations Commission (QIRC).
  2. [2]
    Mr Nesbit’s application for reinstatement was heard by Industrial Commissioner Hartigan sitting in the QIRC.  She dismissed the application.[1]  Against that decision, Mr Nesbit appeals.[2]
  3. [3]
    Mr Nesbit’s appeal was filed a day late[3] and he sought an extension of time.  Perhaps surprisingly, that application was opposed.  However, the only ground of opposition was that the appeal itself allegedly had no merit so that a grant of extension was futile.[4]  An extension of time was granted during the hearing of the appeal.[5]

Background

  1. [4]
    Mr Nesbit has had a long career as a nurse.  He gained his registration as a nurse in 1991.  His qualifications included hospital based training and university study.  Apart from about three and a half years when Mr Nesbit worked at the Wesley Hospital, and a period of secondment to the Prince Charles Hospital, his entire career has been spent with the Service at the hospital.
  2. [5]
    It is not necessary to analyse the particulars of Mr Nesbit’s entire career, although some aspects are relevant to the determination of the appeal. 
  3. [6]
    In 2005, the Service established the Patient Flow Unit (PFU).  The PFU consists of a group of coordinated services which support the entry of patients into the hospital, their movement through the hospital and their discharge from the hospital and reintegration into the community.  The PFU at the hospital was one of the first of its kind and is a ground-breaking service. 
  4. [7]
    Mr Nesbit was involved in the conception of the PFU and he was appointed its inaugural Nursing Director.  He held that position until he was dismissed, although he was, for a time, seconded to another position.
  5. [8]
    The position of Nursing Director of the PFU is a senior position.  It is a Level 12 nursing position.  Approximately 350 employees indirectly report to the PFU Nursing Director.  Twenty-one full-time employees are under the direct supervision of the PFU Nursing Director. 
  6. [9]
    As Nursing Director of the PFU, Mr Nesbit reported to the Executive Director of Nursing and Midwifery Services.  That position was held by Ms Alanna Geary.  It is fair to say, in a neutral way, that the circumstances which led to Mr Nesbit’s dismissal are inextricably intertwined with what became a difficult working relationship between Mr Nesbit and Ms Geary. 
  7. [10]
    Dr Amanda Dines held the position of Executive Director of the hospital.  Mr Shaun Drummond was the Chief Executive Officer of the Service.  Ultimately, Dr Dines issued a show cause notice to Mr Nesbit and Mr Drummond dismissed him.
  8. [11]
    By April 2017, Ms Geary had complained about Mr Nesbit’s work performance.  That led to a direction being given to Mr Nesbit to attend an Independent Medical Assessment (IMA) by a psychiatrist.  Mr Nesbit did not accept the validity of that direction but, in the spirit of resolving the issues that had arisen in the workplace, he submitted to the examination.
  9. [12]
    While the report on the IMA is not in evidence either before the QIRC or before me, Mr Nesbit said that the report recommended that Ms Geary not be Mr Nesbit’s direct report.
  10. [13]
    After the IMA report was received, and probably as a consequence of it, Mr Nesbit was seconded to the Prince Charles Hospital.  That secondment was not successful in that Mr Nesbit was underutilised.  He returned to the hospital on 5 July 2018 and resumed his role as Nursing Director of the PFU.
  11. [14]
    By early 2018, moves were afoot to appoint a permanent Assistant Nursing Director of the PFU.  Ms Cartlidge-Gann had been acting in the role for some time.  She applied for the position but was unsuccessful.  Ms Tracy Daelman was the successful applicant. 
  12. [15]
    The holder of the position of Assistant Nursing Director of the PFU would report directly to the Nursing Director; Mr Nesbit.  It was initially planned that Mr Nesbit would be on the selection panel but Ms Geary later decided that he would not be part of it.  The allegations levelled against Mr Nesbit all relate, directly or indirectly, to the processes which led to Ms Daelman’s appointment. 
  13. [16]
    Dr Dines issued a show cause letter to Mr Nesbit on 1 November 2018.  This contained seven allegations, although allegations 3, 4 and 5 were grouped and particularised together.
  14. [17]
    The allegations, with the particulars, are as follows:

“Allegation One - It is alleged on 25 July 2018 that Mr Nesbit breached the confidentiality of Ms Leonie Cartlidge-Gann, Clinical Nurse Consultant when he discussed her current grievance process with Ms Tracey Daelman, Assistant Nursing Director, PFU.

Particulars

  1. (a)
     You spoke to Ms Daelman in an office with the door open and suggested that you were aware of a grievance process regarding the recruitment process for the Assistant Nursing Director.
  1. (b)
     You divulged information in relation to Ms Cartlidge-Gann’s unrest with the process however that Ms Daelman should not be concerned as she was the successful applicant in the open merit process…
  1. (c)
     On 27 July 2018 Ms Alanna Geary, Executive Director Nursing and Midwifery asked you to respond to the incident on 25 July 2018. During the meeting you advised Ms Geary that you support Ms Daelman and that you were shocked Ms Geary was aware there was a ‘grievance’ going on…

Allegation Two: It is alleged that Mr Nesbit used his work mobile phone … to make calls and send text messages for matters for the period 16 September 2017 to 11 July 2018 which are in breach of the Use of ICT Services Policy.

Particulars

  1. (a)
     You have been issued with a work mobile phone … by the Service for the purpose of making and receiving work related calls as the Nursing Director, Patient Flow Unit.
  1. (b)
     As per DoH Policy – Use of ICT services … it is the expectation of the Service that ‘limited personal use’ for calls and text messages (SMS) applies when using the work phone and these should ‘be infrequent’.
  1. (c)
     You used your mobile phone to consistently make calls and send text messages (SMS) outside your normal span of work hours that do not appear to be in connection with your employment to two different phone numbers as outlined in the attached documents (Attachment 7 – … highlighted in blue and … highlighted in pink).
  1. (d)
     You have used your work mobile phone to make calls and send messages (SMS) that do not appear to be in connection with your employment and are deemed to be more than ‘limited use’ as per the Use of ICT Policy.
  1. (e)
     The mobile number … has been identified as not having any connection with your employment.
  1. (f)
     The mobile number … has been identified to belong to Ms Leonie Cartlidge-Gann.
  1. (g)
     From October 2017 to 4 July 2018 you were not performing your substantive role as the Nursing Director Patient Flow Unit, RBWH and Ms Cartlidge-Gann was on sick leave from 30 April 2018 and remains on leave from the Service.

(a) Allegation Three: It is alleged that in approximately April 2018 Mr Nesbit attempted to influence a completed recruitment process for the Assistant Nursing Director Patient Flow Unit, RBWH.

(b) Allegation Four: It is alleged that between 27 March 2018 and 30 April 2018 Mr Nesbit used the Queensland Health ICT system to send emails that were not in connection with his employment as a Nursing Director.

(c) Allegation Five: It is alleged that on multiple occasions during April 2018, Mr Nesbit used inappropriate language in email communications to Ms Cartlidge-Gann when referring to staff of the Service.

Particulars

a) On 15 March 2018 at 6:08pm … you forwarded Ms Cartlidge-Gann an email from Ms Geary titled ‘FW: Re Assistant Nursing Director Recruitment (sic).’

b) In an email dated 27 March 2018 … to Ms Cartlidge-Gann, you wrote:

‘Doing the letter it’s beyond belief what’s been pulled here. Dale[6] looks disgraceful here. She may be angry. Stay Calm. She’s really not fit to cha[i]r the panel on how she’s managed this. Alanna[7] of course will not do the right thing here. They won’t admit wrong – they’ll likely just want it to go way (sic) now. You really just want a fair crack at the job and Dale to leave you alone… they are extremely cocky. Dale may just get aggressive because you have held her to account. I think Alanna might sit back a bit here – her foot in your camp is looking good. Good luck.’

c) On 26 March 2018 you sent an email from your Queensland Health account to Ms Cartlidge-Gann with the subject ‘letter’. Attached to this email was a document that had been edited using track changes …

d) In an email dated 25 April 2018 … to Ms Cartlidge-Gann you wrote:

‘this will hold everyone to account in some way though, even if it just shows them up as poor at their job. When the panel is current panel is removed I think as a very separate matter, insist I convene the next panel. I think that would be very appropriate given that reason given for why I couldn’t be on the initial one doesn’t exist. What do you think? Lol.’

e) In an email dated 26 April 2018 … Ms Cartlidge-Gann advised,

‘I couldn’t do this appeal without your level of support critiquing and going through everything with the fine tooth (sic) comb.’

f) In an email dated 27 April 2018 to Ms Cartlidge-Gann you advised the following:

a. ‘attached is the promotions appeal using the required template. I’ve completed the key parts for your review. I think it’s strong. It states bias leading to COI is the cause for the appeal. What is considered COI in policy is identified as being present in the cause – it’s there by the fact that a grievance is present – conflict. I also think there is evidence of actual bias through Dale’s action – the timing being significant. What you’re requesting, to recommence from the point that through her actions showed bias, is almost the perfect argument and request. As you’ll see there’s just the formalities to fill in…’

b. Attached also is a scanned copy of the Appeals guide, the appeals directive and the conflict of interest procedure.

c. I think I would risk being squashed to be a fly on the wall when one first becomes aware of the Appeal and the basis of it. A simple oversight/risk missed in the planning and throughout? And they were so close…could smell victory…?! Yes, I’d risk it.

d. If you’re talking to Doreen let her know we’re trying to take the bull down. I’ll be the matador and you’ll be the clown.

g) In an email dated 30 April 2018 to Ms Cartlidge-Gann you wrote:

a. ‘who knows how Alana might twist things’

b. Anyway I hope the appeal process and what you need to do is clear and without much left to do but fill in the formalities and send it in.

Allegation Six: That Mr Nesbit attempted to cover up his actions in relation to allegations three and four as evidenced in an email to Ms Cartlidge-Gann dated 26 April 2018.

Particulars

In an email dated 26 April 2018 at 7:28am to … Ms Leonie Cartlidge-Gann you wrote:

‘I’ve had to send this via my work a/c as I now can’t access my big pond. I’ll delete and empty trash though. If you reply forward to my big pond.’

Allegation Seven: It is alleged that Mr Nesbit deliberately mislead Ms Geary when he advised her that he had not had any contact with Ms Cartlidge-Gann during discussions on 13 and 19 July 2018.

Particulars

  1. (a)
     You advised Ms Geary on 13 July 2018 that you had no contact with Ms Cartlidge-Gann and had not been aware of her (sick leave) extension until this morning.
  1. (b)
     You advised Ms Geary in a meeting dated 19 July 2018 that you had not been in contact with Ms Cartilage-Gann
  1. (c)
     During the meeting Ms Geary raised your phone bill with you, specially that it indicated you had made calls and sent text messages to Ms Cartlidge-Gann and that you were trying to support her through a difficult time
  1. (d)
     Your phone records for the period 16 September 2017 to 11 July 2018 indicated you sent text message and made calls to the mobile number … which is believed to belong to Ms Cartlidge-Gann.”
  1. [18]
    It is necessary to understand how the various disciplinary allegations interrelate. 
  2. [19]
    Mr Nesbit was aggrieved at being omitted from the selection panel for the position of Assistant Nursing Director of the PFU.  Ms Cartlidge-Gann, who, as already observed, was acting in the position for some two years, was aggrieved by the decision to appoint Ms Daelman.  Ms Cartlidge-Gann wanted assistance in challenging the appointment.  Ultimately though she did not lodge an appeal.  Whether Ms Cartlidge-Gann enlisted Mr Nesbit, or Mr Nesbit initiated Ms Cartlidge-Gann’s actions, is a matter of contention, but one that need not be resolved.
  3. [20]
    Against that background, allegation 1 emerges.  There, it is alleged that information given to Mr Nesbit by Ms Cartlidge-Gann concerning her complaints about the selection process was disclosed by him to Ms Daelman.  This was alleged to have breached Ms Cartlidge-Gann’s privacy.
  4. [21]
    Allegation 2 concerns the alleged misuse by Mr Nesbit of his mobile telephone provided to him by the Service.  Those allegations included that he was using the telephone service to telephone Ms Cartlidge-Gann over the period where he was advising and assisting her in her proposed challenge to the decision to appoint Ms Daelman as Assistant Nursing Director of the PFU.
  5. [22]
    Allegations 3, 4 and 5 also relate to the appointment of Ms Daelman as Assistant Nursing Director of the PFU.  Emails were tendered into evidence sent by Mr Nesbit where Mr Nesbit criticises the process leading to the appointment and expresses hope that he would chair the next panel.[8]  Emails were sent on the Queensland Health system[9] and allegedly derogatory language was used about staff of the Service in those emails.[10]
  6. [23]
    Allegation 6 is based on an email from Mr Nesbit to Ms Cartlidge-Gann.  In that email, Mr Nesbit spoke of trashing emails which he had sent.  The Service alleged that was a reference to the emails sent in the commission of allegations 3, 4 and 5.
  7. [24]
    Allegation 7 concerns conversations between Mr Nesbit and Ms Geary.  These occurred after the selection process and after the events the subject of allegations 3, 4 and 5.  At this point, Mr Nesbit was answerable to Ms Geary.  It was alleged that on two occasions Mr Nesbit untruthfully told Ms Geary that he had not been in contact with Ms Cartlidge-Gann when it was alleged he had been assisting her with her proposed challenge to the appointment of Ms Daelman.
  8. [25]
    Various responses to the allegations were made by Mr Nesbit.  It is unnecessary to go into further detail of the disciplinary process.  Mr Nesbit, as I will later explain, alleges that allegations concerning his performance as an employee (beyond the seven allegations) were taken into account without him being given the opportunity to respond to those issues.  Apart from that discrete complaint, there is no allegation by Mr Nesbit that he was not afforded natural justice in the process which eventuated in his dismissal.
  9. [26]
    Dr Dines considered that Mr Nesbit had contravened, without reasonable excuse, various principles of the relevant code of conduct and recommended Mr Nesbit’s dismissal.  On 8 March 2019, Mr Drummond determined that Mr Nesbit ought to be dismissed and gave him notice accordingly.
  10. [27]
    An application for reinstatement alleging unfair dismissal[11] was filed in the QIRC by Mr Nesbit.  In that application, he asserted the following grounds:

“(a) the dismissal was predicated on demonstrably flawed data;

  1. (b)
     the dismissal was based on allegations not reasonably substantiated;
  1. (c)
     the decision to dismiss was made in respect of conduct for which there had been no prior warning, discipline, or other performance management; and/or
  1. (d)
     the dismissal was a disproportionate response to any wrongdoing by the Applicant”
  1. [28]
    Industrial Commissioner Hartigan heard Mr Nesbit’s application in November 2019.  There were six witnesses who gave evidence for the Service.  Four of those I have already mentioned being Ms Geary, Dr Dines, Mr Drummond and Ms Daelman.  The other two witnesses were Lisa Pinese and Joshua Nicholls.  Ms Pinese is the Principal Human Resource Business Partner at the Royal Brisbane and Women’s Hospital.  She advised both Ms Geary and Dr Dines on various matters concerning Mr Nesbit. 
  2. [29]
    Joshua Nicholls is the Operations Specialist (Telecommunications Billing) for eHealth Queensland.  He provided some evidence as to the operation of eHealth’s telecommunication billing system.  That included that the system produces a monthly text to users of eHealth mobile telephones and the text messages link to a webpage summary which includes a statement reminding the user of their responsibility to act in accordance with the conditions of use of the mobile telephone.
  3. [30]
    Each of these witnesses provided an affidavit(s) and all but Mr Drummond were cross-examined by Mr Nesbit.  It is unnecessary, given the restricted nature of the appeal, to analyse in depth the evidence given by these witnesses.
  4. [31]
    Mr Nesbit provided affidavits, and was cross-examined by Ms Freeman of Counsel for the Service.
  5. [32]
    The Industrial Commissioner found all seven allegations proved, although did not find all particulars substantiated.  She found, in relation to allegation 7, that Mr Nesbit intentionally misled Ms Geary on 19 July 2018, but not on 13 July. 
  6. [33]
    Having found the seven allegations proved, the Industrial Commissioner considered whether the decision of dismissal was harsh, unjust or unreasonable.[12]  As already observed, she dismissed the application on 6 May 2020.

Relevant statutory provisions

  1. [34]
    Mr Nesbit was employed under the provisions of the Public Service Act 2008 (the PS Act).  Chapter 6 of the PS Act provides for disciplinary action against public service employees.  Section 187 prescribes the grounds for discipline.  Relevantly, s 187 provides:

“187 Grounds for discipline

  1. (1)
     A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
     engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or …
  1. (f)
     contravened, without reasonable excuse, a provision of this Act; or
  1. (g)
     contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
     A disciplinary ground arises when the act or omission constituting the ground is done or made. …
  1. (4)
     In this section—

misconduct means—

  1. (a)
     inappropriate or improper conduct in an official capacity; or
  1. (b)
     inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

relevant standard of conduct, for a public service employee, means—

  1. (a)
     a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. (b)
     a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994. …”
  1. [35]
    The Public Sector Ethics Act 1994 (the PSE Act) provides for the promulgation of codes of conduct.[13]  Section 24 then provides:

“24 Disciplinary action for contravention of code of conduct or standard of practice

It is the intention of Parliament that any disciplinary action for a contravention of an approved code of conduct or an approved standard of practice by a public official should be dealt with under—

  1. (a)
     if the official is a public service officer—the Public Service Act 2008; or
  1. (b)
     if the official is a local government employee—the local government legislation applying to the local government; or
  1. (c)
     if the official is not a public service officer or a local government employee but there are disciplinary processes applying to the official—the disciplinary processes; or
  1. (d)
     if there are no disciplinary processes applying to the official—the regulations.”
  1. [36]
    Here, the relevant code of conduct is the Code of Conduct for the Queensland Public Service.  The structure of the Conduct of Conduct is to identify principles of conduct and then articulate the standards of conduct.  Relevant here, there are four principles:

Principle 1: Integrity and impartiality;

Principle 2: Promoting the public good;

Principle 3: Commitment to the system of government; and

Principle 4: Accountability and transparency.

  1. [37]
    In relation to Allegation 1, the relevant principle is Principle 1 - “Integrity and impartiality”.  The relevant standard is 1.5 which relevantly provides:

“1.5. Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

a. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that other have the right to hold views which may differ from our own

b. ….. “

  1. [38]
    The principle relevant to Allegation 2 is Principle 4 - “Accountability and transparency”.  The relevant standard is 4.3 which relevantly provides:

“We are accountable for all resources that we use in the course of our duties.

We will:

  1. (a)
     be economical and avoid waste and extravagance in the use of public resources for proper purposes

…”

  1. [39]
    In relation to Allegations 3, 4 and 5, the Service relies on Principles 1 and 4, being “Integrity and impartiality” and “Accountability and transparency”.  The relevant standards are 1.5,[14] 4.1 and 4.3.[15]
  2. [40]
    Standard 4.1 is as follows:

“4.1 Ensure diligence in public administration

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

We will:

a. apply due care in our work, and provide accurate and impartial advice to all clients whether members of the public, public service agencies, or any level of government

b. treat all people equitably and consistently, and demonstrate the principles of procedural fairness and natural justice when making decisions

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

d. comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction.”

  1. [41]
    In relation to Allegation 6, the service relied upon Principle 1 - “Integrity and impartiality” and standard 1.1 which is as follows:

“1.1 Commit to the highest ethical standards

As public service employees we are required to ensure that our conduct meets the highest ethical standards when we are fulfilling our responsibilities.

We will:

a. ensure any advice that we provide is objective, independent, apolitical and impartial

b. ensure our decision making is ethical

c. engage with the community in a manner that is consultative, respectful and fair, and

d. meet our obligations to report suspected wrongdoing, including conduct not consistent with this Code.”

  1. [42]
    In relation to Allegation 7, the Service relied upon Principle 1 - “Integrity and impartiality” and standard 1.5.[16]
  2. [43]
    The disciplines that can be imposed by the Chief Executive are as prescribed by s 188 of the PS Act which, relevantly, is in these terms:

“188 Disciplinary action that may be taken against a public service employee

  1. (1)
     In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

• termination of employment

• reduction of classification level and a consequential change of duties

• transfer or redeployment to other public service employment

• forfeiture or deferment of a remuneration increment or increase

• reduction of remuneration level

• imposition of a monetary penalty

• if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments

• a reprimand …

  1. (3)
     However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  1. (4)
     Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1. (a)
     must not be more than half of the amount payable to or for the employee in relation to the payment; and
  1. (b)
     must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
     if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
  1. (ii)
     otherwise—two-thirds of the guaranteed minimum wage for each week of the period. …”
  1. [44]
    Mr Nesbit’s application to the QIRC was brought under Division 2 of Part 2 of Chapter 8 of the Industrial Relations Act 2016.  Section 316 provides as follows:

“316 When is a dismissal unfair

A dismissal is unfair if it is harsh, unjust or unreasonable.”

  1. [45]
    Section 320 prescribes the matters to be considered in deciding an application.  It provides:

“320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider—

  1. (a)
     whether the employee was notified of the reason for dismissal; and
  1. (b)
     whether the dismissal related to—
  1. (i)
     the operational requirements of the employer’s undertaking, establishment or service; or
  1. (ii)
     the employee’s conduct, capacity or performance; and
  1. (c)
     if the dismissal relates to the employee’s conduct, capacity or performance—
  1. (i)
     whether the employee had been warned about the conduct, capacity or performance; or
  1. (ii)
     whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
     any other matters the commission considers relevant.”
  1. [46]
    Section 557 provides for an appeal from a decision of the QIRC to the Court.  Section 557 provides:

“557 Appeal from commission

  1. (1)
     The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of—
  1. (a)
     error of law; or
  1. (b)
     excess, or want, of jurisdiction.
  1. (2)
     Also, the Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court, with the court’s leave, on a ground other than—
  1. (a)
     error of law; or
  1. (b)
     excess, or want, of jurisdiction.
  1. (3)
     However, subsections (1) and (2) do not apply to the Minister or another person aggrieved by a determination of the full bench under chapter 4, part 3, division 2.
  1. (4)
     If a person may appeal a decision of the commission under both subsections (1) and (2), the person may only appeal against the decision with the court’s leave on a ground mentioned in subsection (2).
  1. (5)
     In this section—

commission means the commission, other than the full bench constituted by the president and 2 or more other members.”

  1. [47]
    The orders that can be made on the hearing of an appeal are prescribed by s 558, relevantly here:

“558 What court may do

  1. (1)
     On an appeal under section 556 or 557, the court may—
  1. (a)
     dismiss the appeal; or
  1. (b)
     allow the appeal, set aside the decision and substitute another decision; or
  1. (c)
     allow the appeal and amend the decision; or
  1. (d)
     allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law. …”

The appeal

  1. [48]
    The application to appeal listed eight grounds in these terms:

“1. I have been employed for two periods by Queensland Health, most recently by Metro North Hiospital (sic) and Health Service, for over 29 years. This is a very long period of service. I have devoted the majority of my workinbg (sic) life to the respondent. I casnnot (sic) start a new career.

  1.  There is no substantiated challenge to the fact that up until my dismissal I was not just a good employee, I was an exemplary employee with an exceptional work ethic
  1.  In the 29 years of service I had never been subject to any substantiated disciplinary allegation or action up until the allegations that led to my dismissal.
  1.  In the 29 years of service I had never been guilty of any safety breach (in circumstances where I had worked for the majority of time in patient safety critical roles).
  1.  The conduct that led to my dismissal was entirely out of character, and where my intent was always to help, occurring in an environment of extreme and ongoing gaslighting where the ‘illusory truth effect’, a phenomenoin (sic) in which a listener comes to believe something primarily because it has been repeated so often, was relevant. Researchers Hasher, Goldstein and Toppiono (1997) discovered that when a statement (even when it is false) is repeated multiple times, it is more likely to be rated as true simply due to the effects of repetition. This, and the reality erosion of gaslighting in my workplace created a significant bias by most witnessess (sic) and decision makers in my case, leading to my dismissal.
  1.  I have not found alternative employment at the current time and at age 54 I will almost inevitably find it difficult to secure alternative employment, let alone employment at the level of remuneration I was earning with the respondent.
  1.  The dismissal has caused me serious hardship. In the longer term, my superannuatioin (sic) is adversely affected to a very substantial degree. It is no exaggeration to say that the dismissal, on the background it sits against, has the potential to effectively ruin my life.
  1.  Lawrence versus Coal and Allied Mining Services Pty Ltd (2010)[17] offers case law for consideration that my unqualified dismissal was manifesty (sic) harsh, reflected in points 1-7 above.”
  1. [49]
    Ground 5 suggests a challenge at least to some of the inferences drawn by the Industrial Commissioner.  The other grounds seem only to raise an issue as to whether or not the decision of dismissal was excessive in all the circumstances.
  2. [50]
    An outline of submissions was filed by Mr Nesbit to which I shall return.
  3. [51]
    Mr Nesbit represented himself on the appeal.  He was obviously nervous.  He clearly felt uneasy submitting that Industrial Commissioner Hartigan erred in her decision, but at the same time not wishing to be disrespectful to her.  The nature of an appeal is the identification of error that necessarily involves levelling criticism at the decision at first instance.  Mr Nesbit presented his case clearly and conducted himself impeccably during the appeal.
  4. [52]
    Mr Nesbit’s written submissions, which he supported with oral submissions at the hearing of the appeal, identified a number of issues beyond the grounds of appeal.  Properly, in my view, Ms Freeman of Counsel for the Service took no point about this and was prepared to meet the issues raised.  She did though take objection to the raising of issues on appeal which were not litigated before the QIRC.
  5. [53]
    Many of Mr Nesbit’s complaints concern findings of fact rather than errors of law.  The Service rightly observed that the raising of such grounds can only be done by leave and leave had not been formally sought.  However, at the hearing of the appeal, Mr Nesbit submitted that if any ground he wished to argue required leave, then leave should be granted.  He submitted that the following factors should result in the grant of leave:
  1. he was a very long-term employee of the Service;
  2. he has never before been the subject of disciplinary proceedings;
  3. he had achieved at a high level of performance for many years in senior positions;
  4. it is in the public interest to keep experienced health professionals working and therefore if his dismissal was a result of a factual error, he ought to be able to succeed on that.
  1. [54]
    There were two parts to the Industrial Commissioner’s judgment.  The first was as to the finding that each of the seven allegations were proved.  The second was that, based on these findings, the dismissal was not harsh, unjust or unreasonable.  The matters raised on the appeal can be looked at in those two categories.

The submissions challenging the finding of the seven grounds of discipline proved

Challenge to the findings at paragraph [23] of the Industrial Commissioner’s judgment

  1. [55]
    At paragraph [23], Industrial Commissioner Hartigan said:

“[23] In or about April 2017, a meeting was held between Mr Nesbit, Ms Geary and Mr Whelan, Manager for Workplace Relations, RBWH, during which Ms Geary made complaints about Mr Nesbit’s performance. Mr Nesbit says that Ms Geary had conducted a performance appraisal of his work at or around the same time but made no formal complaint about his performance during the appraisal.”

  1. [56]
    Mr Nesbit says of that finding:

“4. Regarding point 23 of my Application for Reinstatement outcome, delivered on 6 May 2020, I respectfully advise, that the meeting mentioned did not occur between myself, Ms Geary and Mr Whelan, advising me of performance issues claimed I had at the time. What occurred at the time, I advised at point 42 and 43 of my affidavit, noted under the sub heading of Performance (points 38-43) in my affidavit stamped by the Industrial Registry as received on 20 August 2019. That is, I was advised by a secondary source, the then CEO Mr Ken Whelan, that Ms Geary and Mr Whelan had advised him that I had performance issues that were not articulated, substantiated, or even discussed with me. They both advised that the issues they contended I had related to me suffering a mental illness and were significant enough to warrant a capacity assessment. Mr Whelan recognized a conflict and ordered Ms Geary and me undertake mediation.

  1.  These performance issues have never come to light and I have never had the opportunity to respond to these allegations. This ongoing claim is part of the ongoing and underlying harassment, negative bias and denial of natural justice that culminated in my dismissal, contributing to it being unfair, unjust and unreasonably harsh.”
  1. [57]
    In paragraphs 42 and 43 of his affidavit filed 20 August 2019, Mr Nesbit says this:

“42. Ms Geary had done this before. When I approached the then CEO, Ken Whelan, in early April 2017 in an attempt to stop the ongoing harassment directed towards me by Ms Geary that I had been unable to resolve he advised he had spoken with the Manager, Workplace Relations, Mark Whelan and Ms Geary to gain some insight.

  1.  He advised me they both advised the same thing, which was essentially that I had been a high achiever, but became unwell after my brother committed suicide, developing significant performance issues as a result. They both advised they had considered a capacity assessment but that this had not been progressed. I advised him that I had met with Ms Geary the week before to do my performance review and no performance issues were raised. I advised also that I was highly offended that the death of my brother had been used in this way."
  1. [58]
    Mr Nesbit’s submission raises the question as to whether conduct beyond the seven particularised allegations were considered in his dismissal.  However, Mr Nesbit’s submission, with respect, misunderstands paragraph [23] of the judgment, in particular, and misunderstands the judgment as a whole. 
  2. [59]
    The Industrial Commissioner makes no finding in paragraph [23].  That paragraph is contained in a part of the judgment headed “Background”.  The Industrial Commissioner records in that part various non-contentious facts.[18]  She also records some evidence which was contentious but without making findings.  Paragraph [23] is such a paragraph.
  3. [60]
    In paragraph [23] of the judgment, the Industrial Commissioner records Ms Geary’s evidence of a meeting and Ms Geary making complaints about Mr Nesbit’s work performance, but she also records[19] other evidence.  Importantly, at paragraph [24] of the Industrial Commissioner’s judgment she says this:

“[24] Ms Geary’s evidence is that she advised Dr Dines and Mr Drummond of her concerns about Mr Nesbit’s performance, although she confirmed under cross-examination that her concerns had not been formalised and Mr Nesbit had never been given an opportunity to formally respond to her concerns.” (emphasis added)

  1. [61]
    The Industrial Commissioner then went on to consider each of the seven allegations made against Mr Nesbit.  Nowhere is it suggested in the judgment that any conduct prior to the conduct alleged in the seven complaints is relevant to any findings made by the Industrial Commissioner.
  2. [62]
    When considering whether dismissal was harsh, unjust or unconscionable, the Industrial Commissioner turned her mind to s 320 and the individual considerations prescribed therein.  There is no suggestion that she took into account any adverse performance issues beyond those particularised in the seven complaints.  In fact, she considered Mr Nesbit’s evidence (which she accepted) that the secondment to the Prince Charles Hospital had not been properly organised.  She said:

“[30] A description of the seconded position was provided in an email from Ms Geary to Mr Nesbit dated 16 November 2017. The position was described as follows:

‘... This is a time limited project until at this stage, the end of the financial year (mid Feb - end of June) and would be required to review current nursing structure and function in relation in alignment of overall TPCH governance and in relation to reviewing patient flow and bed/ward allocations, considering the option of setting up a Patient Flow Unit similar to what we have here at RBWH. Your role as the Project Officer would be to discuss, engage with staff, run focus groups, undertake and write up a project plan, subsequent business cases, implementation plan(s) and report directly to Cherie and Anthony. The time frames are relatively tight but the envisaged outcome would articulation of the plan to key stakeholders, pitching to the TPCH Executive for ongoing consideration in written and probably presentation of finding

…

Tony I believe that you have the required skills, the position is within the expectations of a NG12 and it is an opportunity for you to work in another organisation under a supportive leader undertaking a role which you have sound background knowledge of.’

[31] Mr Nesbit undertook the secondment between February and July 2018. Unfortunately, the position Mr Nesbit was seconded to did not eventuate in the form described by Ms Geary in her email of 16 November 2017 or, ultimately, at all. It seemed to be accepted by both parties, that despite Mr Nesbit being removed from his substantive position and placed on secondment, the seconded position, in the end, did not exist.

[32] Mr Nesbit found himself in the position of having been seconded to the Prince Charles Hospital with only limited useful work available to perform. Mr Nesbit states that he brought this situation to the attention of his line manager at the Prince Charles Hospital and made himself available for any other work that was available at the hospital. He also took additional leave throughout this period.” (emphasis added)

  1. [63]
    The Industrial Commissioner made no findings that there were any valid performance issues which led to the secondment to the Prince Charles Hospital and in fact made findings in Mr Nesbit’s favour that the secondment was unsatisfactory.  She made no findings against Mr Nesbit of any general performance deficits after his return from Prince Charles Hospital.[20]
  2. [64]
    The Industrial Commissioner then considered the unsatisfactory nature of the secondment when determining whether the dismissal was unfair.  She said:

“[219] Whilst it appears that Mr Nesbit’s motivation for at least some of the conduct stemmed from his disappointment with respect to the secondment and failure to be included on the recruitment panel, such disappointment does not provide a ‘reasonable excuse’ with respect to the conduct.

[220] The substantiated conduct[21] is not consistent with Mr Nesbit’s obligations pursuant to the standards under the Code of Conduct, nor with the longstanding very senior role which Mr Nesbit performed within the Service. Given these matters, I do not find that the failure to warn Mr Nesbit about his conduct can or should materially contribute to a finding that his dismissal was unfair.” (emphasis added)

  1. [65]
    Mr Nesbit, in his written response submissions, referred to paragraph [21] of the Industrial Commissioner’s judgment.  That is in these terms:

“Mr Nesbit’s secondment to Prince Charles Hospital, and the reasons for it, and his subsequent return to RBWH are contextually relevant to the allegations.”

  1. [66]
    Of that paragraph, Mr Nesbit submitted:

“16. Commissioner Hartigan noted in her decision at point 21 that my secondment from my substantive position, the reasons for it, and my subsequent return to RBWH are contextually relevant to the allegations.

  1.  At point 23, noted in my application to appeal written submissions (point 4) the Commission has misinterpreted the facts in a matter that is contextually relevant to the allegations, specifically to the persistent claims of serious performance issues that have no basis or evidence to substantiate the much repeated claim.”
  1. [67]
    By considering the secondment to Prince Charles Hospital as “contextually relevant”, the Industrial Commissioner has not considered the secondment as something adverse to Mr Nesbit.  As I have already explained, the Industrial Commissioner made no findings of any adverse conduct of Mr Nesbit justifying (or otherwise) the secondment.  Her findings were that Mr Nesbit was aggrieved by the secondment and the sloppy nature of the way it was done and that, to a point, explained but did not excuse his later behaviour.
  2. [68]
    Mr Nesbit, during argument on the appeal, was concerned with paragraph 26 of Mr Drummond’s affidavit, filed 1 August 2019.  In that affidavit, Mr Drummond explained why he dismissed Mr Nesbit.
  3. [69]
    Paragraph 26 is in these terms:

“26. In ascertaining the appropriate disciplinary outcome, I considered Mr Nesbit’s personal circumstances, his length of employment and his clear disciplinary history.”

  1. [70]
    Mr Nesbit has interpreted the phrase “clear disciplinary history” as meaning “obvious disciplinary history”.  However, Mr Drummond meant the term in the sense of “unblemished disciplinary history”.  That is clear for a number of reasons.
  2. [71]
    Firstly, paragraph 26 is meant as an acknowledgment of factors in favour of Mr Nesbit.  The other factors mentioned in that paragraph are Mr Nesbit’s length of employment (decades) and his personal circumstances which may relate to the tragic loss of Mr Nesbit’s brother.
  3. [72]
    Secondly, at paragraph 4 of his affidavit, Mr Drummond said:

“4. Prior to the current disciplinary proceedings, I had met Anthony Nesbit on a few different occasions but had not had any interaction with him on an individual level. I was aware that Alanna Geary was having some performance issues with Mr Nesbit but I had no direct involvement in those issues.” (emphasis added)

  1. [73]
    Mr Drummond is there saying that he has no knowledge of the particulars of any performance issues which Ms Geary may have.  He does not refer to those issues again and in my view has clearly not taken them into account.
  2. [74]
    This is made particularly clear by the third factor which is that Mr Drummond’s explanation for dismissing Mr Nesbit is very precise.  No past performance is mentioned.  Indeed, allegations 1, 2, 4 and 7 did not, in Mr Drummond’s view, justify dismissal.  Mr Drummond said:

“29. I determined that Allegations 1, 2, 4 and 7 were substantiated, however they had no bearing at all on my decision to terminate Mr Nesbit’s employment”

And later:

“30. In relation to Allegation 6, I had no trust or confidence at all that any sanction less than dismissal would not result in Mr Nesbit trying at a future time to cover up any mistakes or misconduct. In my view, working in healthcare means being responsible for people’s lives and wellbeing. Misconduct or wrongdoing can potentially result in the harm and ultimately the death of people. There is a general requirement of open disclosure within the healthcare system so that if a mistake is made, it is not covered up. In relation to Mr Nesbit, I felt the employment relationship had completely broken down because of his conduct and that termination was therefore the only appropriate penalty. When I considered Allegations 3, 5 and 6 cumulatively, I had no doubt whatsoever that termination of Mr Nesbit’s employment was the only appropriate penalty.”

  1. [75]
    It is in my view clear that no alleged conduct, beyond the seven charged allegations, was taken into account by either Mr Drummond or Industrial Commissioner Hartigan.

Bias

  1. [76]
    In his first written submissions, Mr Nesbit refers to issues raised by Ms Geary before the secondment to the Prince Charles Hospital and then he submitted this:

“5. These performance issues have never come to light and I have never had the opportunity to respond to these allegations. This ongoing claim is part of the ongoing and underlying harassment, negative bias and denial of natural justice that culminated in my dismissal, contributing to it being unfair, unjust and unreasonably harsh.

  1.  The claims of serious performance issues, mental illness, and a personal relationship with Ms Cartlidge-Gann form the basis of the allegations. They heavily influence the interpretation of the events related to the allegations despite being untrue and without substance. No evidence has been provided by the respondent to support these and other claims that form the basis of the allegations.” (emphasis added)
  1. [77]
    Later, Mr Nesbit submitted:

“10. To support the allegations and provide a ‘reason’ for my actions within the allegations, the email advising me I could not be on the panel and my initial response to this were provided as evidence and attached to the initial allegations issued to me on 4 November 2018. The full e-mail communication, including a response from Ms Geary to my request for reconsideration of the matter and my response to this reflects a different story and if provided at the outset would have been problematic in supporting the initial scenario being portrayed, not supporting the allegations well when included. I believe this to be an example of the ongoing harassment I have raised as a concern, creating a bias that makes my dismissal unfair and unjust.” (emphasis added)

  1. [78]
    The Service took the view that those paragraphs of Mr Nesbit’s submissions raised an allegation of bias against Industrial Commissioner Hartigan.  Various written submissions were made by the Service which then prompted Mr Nesbit’s response as follows:

“18. The General Protections Benchbook of the Fair Work Commission clarifies that reasonable apprehension of bias means that a party to a matter before the Commission has a genuine concern that the Commission Member might not be impartial and as a result may not deal with the matter in a fair and balanced way. Citing Webb versus the Queen (1994), 181 CLR 41, 74), reasonable apprehension of bias may arise if a Commission Member has published statements that gives rise to a reasonable apprehension of prejudice.

Error of Law

  1.  While the error at point 23 may be considered a simple error of fact the situation could appear to the fair minded lay observer as a clear example of bias resulting from the repeated false claims of serious performance issues that have besmirched my character and influenced not only the decision of both Dr Dines and Mr Drummond to terminate my employment, but also the Commission, leading to a material error of law.”
  1. [79]
    I am not convinced that Mr Nesbit, in his initial written submissions, set out to allege bias against the Industrial Commissioner.  My interpretation of his initial submissions is that the raising, by the Service of performance issues beyond the seven allegations had flavoured the evidence and in that way created a bias against him.  It was more a submission that irrelevant evidence had been admitted and taken into account.
  2. [80]
    If that was the submission being made in the initial written submissions, then that submission ought to be dismissed.  For the reasons I have already given, there is nothing to suggest that alleged performance issues beyond the seven allegations were taken into account by either Mr Drummond or the Industrial Commissioner.  Mr Drummond specifically relied only upon allegations 3, 5 and 6 in determining to dismiss Mr Nesbit.  The Industrial Commissioner very clearly relied only on the proved conduct in finding that the dismissal was not harsh, unjust or unreasonable.
  3. [81]
    As already observed, once the Service categorised Mr Nesbit’s submissions as an allegation of bias against the Industrial Commissioner, Mr Nesbit then made such an allegation in his reply submissions.
  4. [82]
    A body making either an executive or judicial decision must be free from the perception of bias.  An apprehension of bias will exist and will vitiate the decision where a fair-minded lay observer might reasonably apprehend that the decision-maker has not brought an impartial mind to the process of deciding the issue before them.[22]
  5. [83]
    What Mr Nesbit submits is that because of what he says are repeated claims of poor and inappropriate performance, the Industrial Commissioner may be seen to have been influenced and therefore biased in the sense of deciding the case other than on the true issues.  As already explained, the Industrial Commissioner did not, at least on the face of her very detailed judgment, take into account any conduct of Mr Nesbit beyond the seven particularised matters.  The submission must be that having heard of the other conduct, the Industrial Commissioner subconsciously took that into account. 
  6. [84]
    There is nothing to suggest that has occurred.  There is nothing to suggest that, having directed herself on the allegations made against Mr Nesbit and the evidence relevant to those allegations, that her decision was affected by something else.  It is not uncommon for evidence which is irrelevant to come into a proceeding and then be correctly ignored by the decision-maker.  Indeed, the High Court has recognised that lay jurors in a criminal trial follow the directions of trial judges as to the use of evidence.[23]
  7. [85]
    The bias allegation has not been made out.

The finding that Mr Nesbit attempted to influence a completed recruitment process

  1. [86]
    This was the finding that substantiated allegation 3.  Mr Nesbit says that he did not attempt to influence the completed recruitment process. 
  2. [87]
    In order to attempt to do something, a person must intend the result.[24]  Questions of intention concern a state of mind and in the absence of an admission, a state of mind must be proved inferentially.  Whether there is evidence from which to draw the inference is a matter of law.[25]
  3. [88]
    The Industrial Commissioner’s findings in this respect are:

“The findings regarding allegation three

[139] Allegation three arises out of the emails between Mr Nesbit and Ms Cartlidge-Gann that are in evidence. Mr Nesbit’s emails of 26 April 2018 and 28 April 2018, referred to above, identify that Ms Nesbit has assisted Ms Cartlidge-Gann by formulating the grounds to appeal the decision of the recruitment panel and further, that he proposes to Ms Catilidge-Gann that she insist that he be on a reconvened panel.

[140] In addition to drafting a version of the promotion appeal for Ms Cartlidge-Gann to review, Mr Nesbit, in the email of 28 April 2018, provides advice to Ms Cartlidge-Gannhad as to why and how she could argue that the chair and delegate on the recruitment panel had a conflict of interest with respect to her. In doing so, he arms Ms Cartlidge-Gann with assistance to formulate the grounds for her appeal, and provides advice and information as to how she can seek a review of the promotion decision with the aim of disturbing the decision of the recruitment panel that Mr Nesbit has been excluded from.

[141] Mr Nesbit’s email of 26 April 2018 states that:

‘[w]hen the current panel is removed, I think as a very separate matter, insist I convene the next panel. I think that would be very appropriate given that reason given for[sic] why I couldn’t be on the initial one doesn’t exist.’

[142] I do not accept Mr Nesbit’s submission that he was ‘asking nothing of Ms Cartlidge-Gann’. This submission is inconsistent with the words Mr Nesbit uses in the email. The words Mr Nesbit states are clear, that is, he requests Ms Cartlidge-Gann to insist that he convene the next panel. Accordingly, not only does Mr Nesbit suggest that Ms Cartlidge-Gann seek, inter alia, to have the current pane removed but, in addition, he suggests that she also request (insists) that he convene the next panel.

[143] The reason for Mr Nesbit’s behaviour seems to stem from his disappointment with respect to his exclusion from the panel. Mr Nesbit alludes to this in his submissions[26] when he submits that he made the statement to Ms Cartlidge-Gann ‘out of frustration’.

[144] It follows, that I consider Mr Nesbit’s assistance of Ms Cartlidge-Gann goes well beyond what he describes as ‘acting as a work colleague, experienced with Queensland Health Processes. There is nothing unreasonable about that, and it is a stretch beyond proper bounds to construe my actions as a method of influencing a recruitment process.’

[145] I have concluded that Mr Nesbit’s actions are not limited to perfunctory, procedural matters as he submits. Mr Nesbit’s actions included drafting a promotion appeal, drawing some of the grounds of appeal, including with respect to the alleged conflict of interest, the provision of advice as to how Ms Cartlidge-Gann should formulate her arguments and suggestions as to the relief she should seek, including the removal of the current panel. Mr Nesbit’s interest in this outcome is identified when he suggests to Ms Cartlidge-Gann that she insist he be the one to convene a fresh recruitment panel. Mr Nesbit appears to be motivated to assist Ms Cartlidge-Gann to have the recruitment panel’s decision reviewed and he be appointed to convene a fresh panel as a reckoning for the decision to exclude him from the panel.

[146] I am of the view that on the evidence before the Commission, allegation three is substantiated and that Mr Nesbit’s conduct as particularised with respect to allegation three does not meet with a standard in the Code of Conduct.”

  1. [89]
    There was no challenge to the fact that the emails were exchanged and no doubt as to their contents.  In those circumstances, there is ample evidence to support the finding.  Mr Nesbit’s real complaint is not that the inference could not have been drawn, but rather that it shouldn’t have been drawn.  That is a question of fact, not a question of law.  However, as already observed, Mr Nesbit seeks leave to raise questions of fact and has raised issues in support of that grant of leave.
  2. [90]
    If leave were granted, then I would be in as good a position to draw inferences from the facts found by the Industrial Commissioner as was the Industrial Commissioner.[27]
  3. [91]
    I would draw the same inference from the facts as did Industrial Commissioner Hartigan.  Mr Nesbit was clearly instructing Ms Cartlidge-Gann on how to challenge the finding of the selection panel and was hoping that the decision fell.  That is the only way to explain his expression of desire to be on the next panel.
  4. [92]
    The drawing of the inference and the finding that allegation 3 was proved was correct.

Was the decision to dismiss Mr Nesbit, harsh, unjust or unreasonable?

  1. [93]
    As previously observed, Mr Nesbit submits that even if the seven allegations are proved, the penalty of dismissal was still harsh, unjust or unreasonable as the principles applying to that test were explained in Bostik (Aust) Pty Ltd v Gorgevski (No 1).[28]
  2. [94]
    The decision of the Industrial Commissioner was to make a judgment as to whether in all the circumstances the dismissal was “harsh, unjust or unreasonable”.  Her judgment was both informed and constrained by s 320 of the Industrial Relations Act which prescribes the circumstances which must be taken into account in such an assessment.
  3. [95]
    Ultimately, the decision to find or not find the dismissal “harsh, unjust or unreasonable” is not an exercise of discretion.  However, it is a matter of judgment and assessment which will only be set aside if one of the House v The King[29] errors is found.[30]
  4. [96]
    Here, Mr Nesbit made various complaints, some of which were not made to the QIRC.[31]  There is no reason justifying the receipt of those new grounds at this point. 
  5. [97]
    It was alleged, for the first time on appeal, that like conduct within the Service had not resulted in the dismissal of others.  There is no justification for enquiring now into whether that is in fact the case.  More broadly, Mr Nesbit alleges a lack of parity.
  6. [98]
    Parity is a principle of criminal sentencing which is well-established.[32]  The principle (very broadly stated) is that like offenders should be treated similarly.
  7. [99]
    Disciplinary proceedings differ from criminal proceedings in that the aim of discipline is not to punish but to protect the public.[33]  However, as explained by the High Court in Rich v Australian Securities and Investments Commission,[34] those aims are achieved by the imposition of actual punishment.  Despite the difference in the nature of disciplinary and criminal proceedings, it is generally accepted that the principle of parity applies to disciplinary proceedings.
  8. [100]
    Mr Nesbit points to the decision of Fair Work Australia in Lawrence v Coal & Allied Mining Services Pty Ltd.[35]  That was a case where a senior long-term employee with no previous disciplinary record (like Mr Nesbit) was not dismissed.  However, the parity principle requires that all circumstances in the respective cases be taken into account.  Lawrence was a case very different to the present.  It involved a safety breach which was a momentary lapse.  The employee showed remorse.  It is not enough for Mr Nesbit to point to a case where a long-standing employee of good record was not dismissed for a serious employment breach and then assert a lack of parity.
  9. [101]
    There is no discernible error in Industrial Commissioner Hartigan’s reasons for finding that the decision was not harsh, unjust or unreasonable.  She took into account the relevant statutory considerations.  She otherwise directed herself correctly on the law.  There is no identified factual error and she has taken into account all relevant considerations.  The only real criticism was that she took into account unspecified performance issues beyond the seven particular complaints.  I have earlier rejected that submission.
  10. [102]
    The only remaining argument available to Mr Nesbit is that the dismissal is manifestly excessive and therefore beyond the exercise of reasonable judgment.
  11. [103]
    In my view, Mr Nesbit fails on that ground also.  While he was a long-term employee of good record, these were serious breaches of the Code of Conduct by a senior employee in a position involving a high degree of trust and responsibility.  The breaches seriously eroded that trust.  It was clearly open for the Industrial Commissioner to find that the dismissal was not harsh, unjust or unreasonable.

Conclusions and orders

  1. [104]
    No error of law has been identified in the Industrial Commissioner’s findings that each of the seven charged complaints are proved.  No factual error was identified by Mr Nesbit and so there was no need ultimately to decide whether he ought to be given leave to raise a factual issue.
  2. [105]
    No error has been identified in Industrial Commissioner Hartigan’s finding that the dismissal was not harsh, unjust or unreasonable and that finding itself was reasonable on the evidence.
  3. [106]
    I order that the appeal be dismissed.

Footnotes

[1] Nesbit v Metro North Hospital and Health Service [2020] QIRC 66.

[2] Industrial Relations Act 1999, s 557.

[3] Industrial Relations Act 1999, s 564.

[4] Transcript of the hearing of the appeal, T 1-2.

[5] T 1-3.

[6] A reference to Ms Dale Dally-Watkins.

[7] A reference to Ms Geary.

[8] Allegation 3.

[9] Allegation 4.

[10]Allegation 5.

[11] Industrial Relations Act 1999, Chapter 8, Part 2, Division 2.

[12] Industrial Relations Act 1999, s 320, Nesbit v Metro North Hospital and Health Service [2020] QIRC 66 at [207] and following.

[13] Part 4, Division3, subdivision 1.

[14] Set out earlier.

[15] Set out earlier.

[16] Previously set out.

[17] A reference to Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388.

[18] See paragraphs [12], [13], [14], [15], [16],[ 17], [18] and [19].

[19] Again in paragraph [23].

[20] Apart from the seven particular allegations.

[21] The seven allegations; not anything else.

[22] Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337, Amos v Wiltshire [2015] QCA 44.

[23] Gilbert v The Queen (2000) 201 CLR 414 at 420 [13], 425 [31], 426 [32] and 431 [52].

[24]See generally R v Morant [2020] QCA 135.

[25] R v R (1989) 18 NSWLR 74 followed in Doney v R (1990) 171 CLR 207.

[26] Affidavit of Anthony Nesbit 28 October 2019, Exhibit A3.

[27] Lee v Lee (2019) 266 CLR 129 at [35] and see also Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679.

[28] (1992) 36 FCR 20 at 28 and see also Byrne v Australian Airlines (1995) 185 CLR 410 at 465-466.

[29](1936) 55 CLR 499.

[30] Norbis v Norbis (1986) 161 CLR 513.

[31] The attempt to introduce Dr Whitford’s psychiatric report on Mr Nesbit before the secondment.  It was alleged Mr Drummond was guilty of breach to the Public Service Code of Conduct.

[32] Lowe v R (1984) 134 CLR 606 and Postiglione v R (1997) 189 CLR 295 and more recently Elias and Issa v R (2013) 248 CLR 483.

[33] Clyne v New South Wales Bar Association (1960) 104  CLR 186 at [24].

[34] (2004) 220 CLR 129.

[35](2010) 202 IR 388.

Close

Editorial Notes

  • Published Case Name:

    Nesbit v Metro North Hospital and Health Service

  • Shortened Case Name:

    Nesbit v Metro North Hospital and Health Service

  • MNC:

    [2021] ICQ 5

  • Court:

    ICQ

  • Judge(s):

    Davis J P

  • Date:

    12 Mar 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Amos v Wiltshire [2015] QCA 44
2 citations
Jump To
Cite 1 - [2015] QCA 44
Cite 2 - [2015] QCA 44
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Clyne v NSW Bar Association (1960) 104 CLR 186
2 citations
Jump To
Cite 1 - (1960) 104 CLR 186
Cite 2 - (1960) 104 CLR 186
Doney v The Queen (1990) 171 CLR 207
2 citations
Jump To
Cite 1 - (1990) 171 CLR 207
Cite 2 - (1990) 171 CLR 207
Ebner v Official Trustee in Bankruptcy (2000) 205 CLR 337
2 citations
Jump To
Cite 1 - (2000) 205 CLR 337
Cite 2 - (2000) 205 CLR 337
Elias v The Queen (2013) 248 CLR 483
2 citations
Jump To
Cite 1 - (2013) 248 CLR 483
Cite 2 - (2013) 248 CLR 483
Gilbert v R (2000) 201 CLR 414
2 citations
Jump To
Cite 1 - (2000) 201 CLR 414
Cite 2 - (2000) 201 CLR 414
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
Lawrence v Coal & Allied Mining Services Pty Ltd (2010) 202 IR 388
3 citations
Jump To
Cite 1 - (2010) 202 IR 388
Cite 2 - (2010) 202 IR 388
Cite 3 - (2010) 202 IR 388
Lee v Lee (2019) 266 CLR 129
2 citations
Jump To
Cite 1 - (2019) 266 CLR 129
Cite 2 - (2019) 266 CLR 129
Lowe v R (1984) 134 CLR 606
2 citations
Jump To
Cite 1 - (1984) 134 CLR 606
Cite 2 - (1984) 134 CLR 606
Nesbit v Metro North Hospital and Health Service [2020] QIRC 66
3 citations
Jump To
Cite 1 - [2020] QIRC 66
Cite 2 - [2020] QIRC 66
Cite 3 - [2020] QIRC 66
Norbis v Norbis (1986) 161 C.L.R., 513
2 citations
Jump To
Cite 1 - (1986) 161 C.L.R., 513
Cite 2 - (1986) 161 C.L.R., 513
Postiglione v The Queen (1997) 189 CLR 295
2 citations
Jump To
Cite 1 - (1997) 189 CLR 295
Cite 2 - (1997) 189 CLR 295
R v Morant(2020) 5 QR 1; [2020] QCA 135
2 citations
Jump To
Cite 1 - [2020] QCA 135
Cite 2 - [2020] QCA 135
R v R (1989) 18 NSWLR 74
2 citations
Jump To
Cite 1 - (1989) 18 NSWLR 74
Cite 2 - (1989) 18 NSWLR 74
Rich v Australian Securities and Investments Commission (2004) 220 CLR 129
2 citations
Jump To
Cite 1 - (2004) 220 CLR 129
Cite 2 - (2004) 220 CLR 129
Robinson Helicopter Co Inc v McDermott (2016) 90 ALJR 679
2 citations
Jump To
Cite 1 - (2016) 90 ALJR 679
Cite 2 - (2016) 90 ALJR 679

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Case NameFull CitationFrequency
Alderding v State of Queensland (Queensland Health) [2022] QIRC 2682 citations
Borkowski v State of Queensland (Queensland Corrective Services) [2021] QIRC 3302 citations
Carle v State of Queensland (Queensland Ambulance Service) (No. 2) [2025] QIRC 762 citations
Cleal v State of Queensland (Queensland Health) [2023] ICQ 62 citations
Danaher v State of Queensland (Queensland Health) [2022] QIRC 4072 citations
Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 2372 citations
Manttan v State of Queensland (Department of Education) [2022] QIRC 2382 citations
Quinn v State of Queensland (Queensland Health) [2025] QIRC 1582 citations
Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2021] QIRC 3272 citations
Smith v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) (No. 2) [2021] QIRC 4032 citations
Smith v State of Queensland (Queensland Health) [2023] QIRC 2962 citations
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 32 citations
Turner v Queensland Ambulance Service [2022] QIRC 4712 citations
Walker v State of Queensland (Queensland Health) [2025] QIRC 1813 citations
1

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