CITATION: | Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2022] ICQ 009 |
PARTIES: | SUZANNE RIMLAND (appellant) v STATE OF QUEENSLAND (DEPARTMENT OF COMMUNITIES, DISABILTY SERVICES AND SENIORS) (respondent) |
FILE NO/S: | C/2021/16 |
PROCEEDING: | Appeal |
DELIVERED ON: | 22 April 2022 |
HEARING DATE: | 8 December 2021 |
MEMBER: | Davis J, President |
ORDER/S: | The appeal is dismissed |
CATCHWORDS: | INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – UNFAIR DISMISSAL – WHAT CONSTITUTES – where the appellant was employed as a psychologist in the Department of Communities, Disability Services and Seniors – where her employment became affected by “workplace change” – where the appellant became subject to Directive 17/16 – Supporting employees affected by workplace change (SEAWC Directive) – where the Chief Executive was satisfied that the appellant was not performing her duties satisfactorily – where the Chief Executive suspected that the unsatisfactory performance was caused by mental or physical illness or disability – where the alleged unsatisfactory performance of duties was a failure to fulfil the applicant’s obligations under the SEAWC Directive – whether performance of obligations under the SEAWC Directive are “duties” – where the Chief Executive directed the appellant to attend an Independent Medical Examination – where the appellant did not attend the Independent Medical Examination – whether the direction to attend the Independent Medical Examination was lawful – where the appellant was given a show cause notice in relation to failing to appear at the Independent Medical Examination – whether the show cause notice complied with Guideline 01/17: Discipline – whether non-compliance invalidated the disciplinary process – whether the failure to appear at the Independent Medical Examination constituted a ground for discipline – where the Queensland Industrial Relations Commission dismissed the appellant’s unfair dismissal application – whether the appellant has shown error of law or excess or want of jurisdiction Directive 1/18 - Managing employee Health, Safety and Wellbeing - Independent Medical Examinations under the Public Service Act 2008 Directive 17/16 - Supporting employees affected by workplace change Queensland Public Service Officers and Other Employees Award - State 2015 Industrial Relations Act 2016, s 317, s 320, s 531, s 557, s 565 Industrial Relations (Tribunals) Rules 2011, r 139(2)(c) Public Service Act 2008, s 9, s 47, s 53, s 174, s 175, s 177, s 187, s 188 Work Health and Safety Act 2011 |
CASES: | Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, followed Byrne v Australian Airlines Ltd (1995) 185 CLR 410, followed Byrnes v Kendle (2011) 243 CLR 253, cited Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209, followed Ex parte McLean (1930) 43 CLR 472, cited Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, followed George v Rockett (1990) 170 CLR 104, followed Goldie v Commonwealth of Australia (2002) 117 FCR 566, cited Hussien v Chong Fook Kam [1970] AC 942, followed Kioa v West (1985) 159 CLR 550, followed Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, followed New South Wales v Robinson (2019) 266 CLR 619, cited Queensland Bacon v Rees (1966) 115 CLR 266, cited R v Elfar; R v Golding; R v Sander [2017] QCA 149 and [2018] 1 Qd R, cited R v Rondo (2001) 162 A Crim R 562, cited Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1, followed Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265, related Ruddock v Taylor (2005) 222 CLR 612, cited State of New South Wales v Smith (2017) 95 NSWLR 662, cited SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936, followed The Australian Workers’ Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67 , cited The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507, followed Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2022] ICQ 6, cited |
APPEARANCES: | The appellant appeared for herself C Laird for the respondent |
Background
“7. Principles
7.1 The government’s commitment to employment security, as a key component of fairness for employees, is set out in the Employment security policy. Consistent with the policy departments and employees are responsible for pursuing best value service delivery through performance improvement and skills development strategies in preference to downsizing, restructuring or outsourcing.
7.2 Notwithstanding clause 7.1, the government acknowledges that workplace change may occur that impacts on staffing requirements, including as a result of external (e.g. Federal) initiatives. Where such change occurs:
…
9. Actions following workplace change
9.1. Where workplace change results in permanent employees being displaced from a substantive (ongoing) role, departments and affected employees must work cooperatively to transfer (or with the employee’s consent, redeploy) the employee to a suitable alternative (ongoing) role.
9.2 Where a suitable alternative role cannot be immediately identified, the department must notify the affected employee in writing that they will be registered for priority transfer (and/or redeployment) in accordance with this directive.
9.3 Notwithstanding clause 9.2, a department will consider expressions of interest initiated by affected employees for a voluntary redundancy.
9.4 The department may also invite employees to express interest in a voluntary redundancy where there is a reasonable basis for believing the cohort of affected employees would be interested in receiving such an invitation.
9.5 An expression of interest under clause 9.3, or an invitation to express interest under clause 9.4 does not oblige the department to make an offer nor an affected employee to accept an offer.
9.6 An offer of a redundancy is on the terms provided for in the directive on early retirement, redundancy and retrenchment.
10. Registration process
10.1 …[4]
10.3 When registering, an affected employee must:
11. Actions to support employment security
11.1 Departments and affected employees must work cooperatively in supporting employment security, as set out in the Employment security policy and this directive[5]
…
11.3 A case manager must be assigned to support an affected employee who has been displaced following workplace change. The case manager’s role includes, but is not limited to:
11.4 An affected employee is responsible for participating in reasonable opportunities for retraining/development and transfer (and, if they have consented to it, redeployment). This includes, but is not limited to:
12. Referral of vacancies for service-wide priority transfers, redeployment and longer term secondment[6]
…
12.4 Where a releasing department identifies a possible match, they must refer the relevant employee/s by submitting a short statement outlining the reason for possible suitability to the receiving department, along with the employee’s resume.
…
13. Suitability assessments
13.1 Where an affected employee is referred under clauses 11.2 or 12 a suitability assessment must be undertaken by the receiving department. A representative of the releasing department must be involved in the suitability assessment process.
…
13.3 Where an affected employee is assessed as suitable, a transfer or secondment (at level) direction, or a redeployment/secondment (to a lower level) offer is made, with date of effect specified. An affected employee’s agreement to a redeployment/secondment to a lower level should be recorded in writing.
13.7 Affected employees who are assessed as unsuitable must be provided with a copy of the suitability report and with constructive feedback by the recruiting manager to assist them in future referrals/applications. Unless otherwise agreed between the parties, feedback is to be provided within two business days of the suitability report being provided to the affected employee.
(emphasis added)
“174 Application of pt 7
This part applies to a public service employee if—
175 Chief executive may require medical examination
The chief executive may—
“8. Statement of intent and expectation
8.1 The Queensland Government is committed to supporting public service employees who experience illness or injury to maintain their employment, including where appropriate, through the application of reasonable adjustment…
9. Decision to require an employee to submit to a medical examination
9.1 In some cases, early communication and management efforts may not be successful in addressing performance issues or current absences.
9.2 Where the conditions in section 174 are satisfied, section 175 of the PS Act provides that a chief executive may appoint a doctor. to examine the employee and give the chief executive a written report on the examination. It also provides that a chief executive may require the employee to submit to the medical examination. Failure to comply may be grounds for discipline action.
9.3 The conditions in sections 174(a) and (b) of the PS Act must both be met before a chief executive may require the employee to submit to a medical examination. Firstly, section 174(a) requires that an employee is either absent from duty (which is a question of fact) OR the chief executive must have sufficient grounds, supported by evidence, to be reasonably satisfied the employee is not performing his or her duties satisfactorily. For the second part, in section l74(b), the chief executive must have sufficient grounds, which have been documented, to support their reasonable suspicion that the employee’s current absence or unsatisfactory performance is caused by a mental or physical illness or disability.
9.4 The chief executive is to provide the employee with at least two weeks’ notice of a medical examination appointment unless the employee agrees to a shorter notice period. The direction to require an employee to submit to a medical examination must set out the basis and reasons for the direction under section 174.” (emphasis added)
“187 Grounds for discipline
…
188 Disciplinary action that may be taken against a public service employee
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 …” (emphasis added)
“It is alleged that you have failed to follow reasonable direction to attend an Independent Medical Examination (IME).
If accepted, this allegation could constitute grounds for discipline pursuant to section 187(1)(d) of the Act, in that you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.
The allegation, if proven, could constitute grounds for discipline pursuant to the abovementioned subsection of the Act because you were directed, but failed, to attend two IMEs[11] during the month of April 2019, which were scheduled to guide the department in supporting your ongoing employment.”
And:
“If a disciplinary finding is made in relation to the above allegation, section 188(1) of the [PS] Act provides examples of disciplinary action that the delegate may consider reasonable in the circumstances. I am currently giving serious consideration to:
• termination of your employment.” (emphasis added)
The current appeal
“557 Appeal from commission
“1 Appeal is in accordance with the Industrial Relations Act 2016, Chapter 11, Part 6 s. 557(i )(a) - error of law
4 The decision fails in its test of the evidence across a wide range of assertions. Hearsay is accepted as fact and exhibits ignored. This impacts the reasoning in the decision regarding the existence or not of grounds for a referral to an Independent Medical Examination (IME) under the Public Service Act Part 7 (Mental or Physical incapacity) and my challenge to its lawfulness. There is no evidence in the papers that anything other than the employer’s interpretation of the SEAWC Directive and failure to provide and respect OH&S response (the supplied medical letter) was the reason for the IME[16] referral. There are numerous references throughout the decision document to unsupported[17] (lacking evidence) employer claims about my ‘refusal’ to accept a referral, including to psychology roles, in context of the supplied medical letter and the SEAWC Directive. The content of the supplied private medical letter and repeated offers by my doctor to engage with the employer were ignored by the employer and an IME would have provided no additional information (according to Part 7 of the Public Service Act). The only reason to pursue an IME was to provide false claims to the medical practitioner, which I was not allowed to see and which the Commissioner dismissed as irrelevant to the case. Claims presented for the IME were based on hearsay, lack of acceptable evidence. My analysis of the quality of this evidence was ignored, including the missing information and contradictory information.”
Was the quality of the evidence lacking?[24]
“[173] The Respondent says that Ms Rimland was spoken to and written to on multiple occasions regarding her obligations under the SEAWC and that she was not considered to be meeting these obligations. Further to this, the Respondent says that it is unclear what more it could do to demonstrate concerns regarding a health issue other than to request on a number of occasions that medical information be provided.”
Proper construction of s 174; are SEAWC Directive obligations part of “duties”?[30]
“11 Relationship between chief executives and their public service employees
“53 Rulings by commission chief executive
(ba) a matter relating to the application of chapter 6 or 7 to a former public service employee; or
“(3) A directive binds the persons to whom it applies.”
Did the QIRC misapply or fail to apply various provisions?[38]
Clause 11.3 of the SEAWC Directive
“[143] Given that the unsatisfactory performance relied upon by the Respondent was with regard to Ms Rimland’s participation in the SEAWC process and Ms Rimland claims it was the Respondent’s implementation of the SEAWC process that was problematic, rather than her participation in it, I found it necessary to set out the evidence before me regarding the process from paragraphs [35] to [142]. Following the process as described by each of the parties, I am left with the impression that both parties found the process frustrating. However, I am satisfied that it was Ms Rimland’s failure to satisfactorily participate in the process that caused the Respondent to temporarily withdraw her from the process pending the receipt of independent medical advice.” (emphasis added)
Clause 12 of the SEAWC Directive
Clauses 13.3(b) and (c) of the SEAWC Directive
By Part 7 of the Public Service Act (Mental and Physical Incapacity) - the Department was not entitled to seek a diagnosis
“177 Medical examination report
Work Health and Safety Act 2011
The Queensland Public Service Officers and Other Employees Award - State 2015
“7.2 Employee grievance procedures - other than Award matters
Stage 1: In the first instance the employee shall inform such employee’s immediate supervisor of the existence of the grievance and they shall attempt to solve the grievance. It is recognised that an employee may exercise the right to consult such employee’s union representative during the course of Stage 1.
Stage 2: If the grievance remains unresolved, the employee shall refer the grievance to the next in line management (‘the manager’). The manager will consult with the relevant parties. The employee may exercise the right to consult or be represented by such employee’s union representative during the course of Stage 2.
Stage 3: If the grievance is still unresolved, the manager will advise the chief executive and the aggrieved employee may submit the matter in writing to the chief executive if such employee wishes to pursue the matter further. If desired by either party the matter shall also be notified to the relevant union.
Stage 1: Discussions should take place between the employee and such employee’s supervisor within 24 hours and the procedure shall not extend beyond 7 days.
Stage 2: Not to exceed 7 days.
Stage 3: Not to exceed 14 days.
Did the QIRC properly find “reasonable suspicion” of mental illness?[51]
“Suspicion in its ordinary meaning is a state of conjecture or surmise where proof is lacking: ‘I suspect but I cannot prove.’ Suspicion arises at or near the starting-point of an investigation of which the obtaining of prima facie proof is in the end.”[55]
“I provide an assessment on the current psychological situation of Suzanne,[63] based on six counselling sessions. Whilst not formally qualified to diagnose, I have had extensive experience in working clinically with many people suffering Post Traumatic Stress responses.
During our contact Suzanne has displayed patterns of somatic behaviours and reactions as well as cognitions and emotional responses consistent with past clients I have assisted, who were formally diagnosed with PTSD.
Suzanne was initially referred by Dr Bianca Pettigrew, on 17/04/2018, and the following were listed in the Mental Health Assessment and Plan she provided, ‘terrible insomnia, intrusive ruminations, low mood in context of profound fatigue and feeling overwhelmed with work and prospect of finding new job’. At the start of the initial session, I administered the Dass 21, with results in the normal range, (Depression-10, Anxiety-2 and Stress-1) the highest scores of 2 were against items 5, (lack of initiative), item 10 (nothing to look forward too), and item 13 (down hearted and blue).” (emphasis added)
And later:
“I suspect that Suzanne may, in fact, be eligible for a diagnosis of Post-traumatic Stress Disorder (Syndrome), by an appropriately qualified practitioner.” (emphasis added)
“Suzanne spoke of her insomnia, feelings of depression, lack of motivation and a sense of hopelessness. I gave her homework around consolidating these strategies, as action towards reducing the intrusiveness of the issues mentioned in her care plan.”
And later:
“I again expressed my thoughts that her behaviour was consistent with other clients I had worked with who suffered PTSD. She then remembered that when she left Queensland Health after ‘blowing the whistle’, she did receive a diagnosis of PTSD from Dr. Bill Wilke, this however was rejected by APHRA, who instead accepted an opinion that she suffered ‘Adjustment Disorder’.” (emphasis added)
“As a result of my clinical contact with Suzanne on 14/04/2018, 1/05/2018 and 17/05/2018, 24/05/18 and 7/06/18 and 25/06/18; I would recommend that Suzanne be formally assessed to determine whether or not a diagnosis of Post-Traumatic Stress Disorder (Syndrome) is appropriate in relation to her involvement as a whistle blower and the traumatic aftermath from that situation. I would also request that a treatment plan be developed for Suzanne.” (emphasis added)
“As per Ms Rimland’s consent for this communication, I do not include any diagnostic particulars nor do I comment on Ms Rimland’s professional qualifications as might be required for any given position. I aim to provide a framework within which a suitable role can be found that provides a safe, predictable and stable work environment that will not exacerbate Ms Rimland’s medical condition. To the best of my knowledge, Ms Rimland’s medical condition does not impair her capability as a psychologist.”
And later:
“I strongly recommend that Ms Rimland avoid roles that involve a high risk of exposure to conflict or hostility e.g. ‘front line’ child protection. I recommend that Ms Rimland avoid a role that involves management or assessment of [acutely][64] traumatised clients e.g. traumatised staff of youth detention or prisons. Ms Rimland is best placed to assess the impact of a given role on her health and responsiveness to clients. Ms Rimland would greatly benefit from a period of workplace stability, utilising her professional skills, ideally with accessible and supportive management and mentors.”
Was the discipline process followed?[65]
“1. Initial enquiries and considerations.
“1. PURPOSE
This Guideline is an aid to managing disciplinary processes under the Public Service Act 2008 (PSA), Chapter 6 (‘Disciplinary action for public service employees and former public service employees’). This Guideline is to be used as an adjunct to (that is, not instead of) the PSA. Its purpose is to only provide guidance. It does not bind or substitute for decision makers needing to properly exercise their managerial discretion in line with the PSA, in response to the unique set of facts of each actual case. …” (emphasis added)
“[176] In these circumstances, there was one allegation against Ms Rimland. That allegation was that Ms Rimland had failed, without reasonable cause, to follow the Direction to attend the IME. Ms Rimland was advised on two occasions (26th and 30th April) that failure to follow the direction could lead to disciplinary action. It was not in dispute that Ms Rimland had not attended the IME. In fact, she indicated on a number of occasions that she was not going to attend the IME and would not attend an IME. In the circumstances, I do not see that there was cause for there to be an investigation into whether Ms Rimland had attended the IME. It is clear that she did not.
[177] The show cause process gave Ms Rimland the opportunity to provide reasons why it was reasonable for her to refuse to attend the IME and why, if it was found that she had no reasonable excuse, she should not be terminated. Ms Rimland provided a response.
[178] There is nothing before me to suggest that Ms Rimland was not afforded an opportunity to respond to the allegation or that the show cause process was not conducted properly.”
Conclusions
[1] This directive has since been superseded.
[2] 7.2(b) provides that priority of continuing employment will be given to permanent employees over temporary contracted employees.
[3] Clause 7.3 casts the obligation to implement workplace strategies upon the relevant department and clause 7.4 preserves the force of relevant industrial instruments. Clause 8 concerns governance arrangements for workplace change.
[4] Clauses 10.1 and 10.2 provide for a register of affected employees.
[5] Clause 11.2 has no relevance here.
[6] Clauses 12.1 to 12.3 concern advertising of vacancies.
[7] Clause 13.2 concerns the timing of the suitability assessment.
[8] Clauses 13.4, 13.5 and 13.6 are machinery provisions concerning the suitability assessment.
[9] This directive has since been superseded.
[10] There is no contest that the direction was given by a “responsible person”.
[11] In fairness only one; the later one.
[12] Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265.
[13] Industrial Relations Act 2016, s 320.
[14] In the grounds this word was “ageny”, an obvious typographical error.
[15] This is an obvious reference by Ms Rimland to the decision from which the current appeal is mounted.
[16] Independent Medical Examination.
[17] This was misspelled as “unsuported”; just a typographical error.
[18] I have assigned “Point 1” to “Point 8” to the headings in Ms Rimland’s written submissions.
[19] “The first complaint”.
[20] “The second complaint”.
[21] “The third complaint”.
[22] “The fourth complaint”.
[23] “The fifth complaint”.
[24] The first complaint; Point 5.
[25] See the decision by Merrell DP, where the relevant authorities are referred to in The Australian Workers’ Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67 at [38]-[46].
[26] Rimland v state of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265 at [12]-[13] and subsequent reasoning.
[27] Industrial Relations Act 2016; s 531(2)(a) and (b).
[28] See Exhibit 17 and paragraph [25] to Ms Rimland’s affidavit filed 25 October 2019.
[29] Ms Rimland’s written submissions, paragraph 16.
[30] The second complaint; Point 2, Ms Rimland’s written submissions, paragraph 9.
[31] Public Service Act 2008, s 9(1).
[32] Statutory notes omitted.
[33] Public Service Act 2008, s 47(6).
[34] Statutory notes omitted.
[35] Byrne v Australian Airlines Ltd (1995) 185 CLR 410 at 419-421, Ex parte McLean (1930) 43 CLR 472 at 479 followed and applied in Together Queensland Industrial Union of Employees v State of Queensland (Queensland Corrective Services) [2022] ICQ 6 at [19].
[36] Alcan (NT) Alumina Pty Ltd v Commissioner of Territory Revenue (2009) 239 CLR 27, Federal Commissioner of Taxation v Consolidated Media Holdings Ltd (2012) 250 CLR 503, SZTAL v Minister for Immigration and Border Protection (2017) 91 ALJR 936 at [14], [35]-[40] and The Queen v A2; The Queen v Magennis; The Queen v Vaziri (2019) 269 CLR 507 at [32] and see generally Byrnes v Kendle (2011) 243 CLR 253 at [95]-[116].
[37] Public Service Act 2008, s 47(3).
[38] The third complaint, Point 1, Point 2, Point 3, Point 6, Point 7.
[39] SEAWC Directive, clause 10.1.
[40] SEAWC Directive, clause 10.3.
[41] To the extent that it is relevant to the present dispute.
[42] Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265, paragraphs [35]-[83].
[43] To the extent that it is relevant to the current dispute.
[44] Set out at paragraph [5] of these reasons.
[45] SEAWC Directive, clause 12.4(a).
[46] To the extent that it is relevant to the current dispute.
[47] Paragraphs [53] and [54] of these reasons referring to paragraph [143] of the QIRC’s decision.
[48] Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265 at [162]-[168].
[49] Letter 17 April 2019 to Ms Clare O'Connor, Director-General, Department of Communities, Disability Services and Seniors.
[50] Clause 7.2(h).
[51] The fourth complaint, Point 2.
[52] Public Service Act 2008, s 174(a).
[53] Public Service Act 2008, s 174(b).
[54] [1970] AC 942.
[55] At 948.
[56] (1990) 170 CLR 104 at 115.
[57] Ruddock v Taylor (2005) 222 CLR 612, New South Wales v Robinson (2019) 266 CLR 619 and see the earlier case of Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 at 303.
[58] (2001) 126 A Crim R 562.
[59] At [53] and see also State of New South Wales v Smith (2017) 95 NSWLR 662 at [117] and [118] and R v Elfar; R v Golding; R v Sander [2017] QCA 149 at [32] reported in part at [2018] 1 Qd R 608.
[60] [2021] QIRC 209.
[61] (2002) 117 FCR 566.
[62] At [39].
[63] A reference to Ms Rimland.
[64] Ms Rimland added the word “acutely” in handwriting to the letter before providing it to Mr Harper.
[65] The fifth complaint; Point 4.
[66] At cl 10.1.
[67] Mobil Oil Australia Pty Ltd v Federal Commissioner of Taxation (1963) 113 CLR 475, Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam (2003) 214 CLR 1 at [37]-[38], Kioa v West (1985) 159 CLR 550 at 627.
