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Perry v State of Queensland (Queensland Health) (No. 3)[2024] ICQ 12

Perry v State of Queensland (Queensland Health) (No. 3)[2024] ICQ 12

INDUSTRIAL COURT OF QUEENSLAND

CITATION:

Perry v State of Queensland (Queensland Health) (No. 3) [2024] ICQ 012

PARTIES:

SANDRA (ANDREA) PERRY

(Appellant)

v

STATE OF QUEENSLAND (QUEENSLAND HEALTH)

(Respondent)

CASE NO.:

C/2023/49

PROCEEDING:

Appeal

DELIVERED ON:

20 May 2024

HEARING DATE:

11 April 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDER:

The appeal is dismissed.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – APPEALS – APPEAL TO INDUSTRIAL COURT – Appellant is a public service employee employed  by the Respondent – Appellant was the subject of a disciplinary finding decision – Appellant appealed to the Queensland Industrial Relations Commission against the  disciplinary finding decision – Queensland Industrial Relations Commission confirmed the disciplinary finding decision – Appellant appealed to the Industrial Court of Queensland against the decision of the Queensland Industrial Relations Commission – nature of appeal to Industrial Court of Queensland  – whether any error of law in the decision of the Queensland Industrial Relations Commission – no relevant error in the decision of the Queensland Industrial Relations Commission – appeal dismissed

LEGISLATION:

Directive 05/23: Discipline, cl 9

Industrial Relations Act 2016, s 529, s 557, s 558, s 562B, s 562C, s 565 and 567

Industrial Relations (Tribunals) Rules 2011, r 132, r 139 and r 226

Public Sector Act 2022, s 91

Public Service Act 2008, s 187

Work Health and Safety Act 2011, s 19

Work Health and Safety Regulation 2011, s 39

CASES:

Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639

du Boulay v Worrell & Ors [2009] QCA 63

Gambaro v Workers' Compensation Regulator [2017] ICQ 005

Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106

House v The King [1936] HCA 40; (1936) 55 CLR 499

McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7

Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541

Perry v State of Queensland (Queensland Health) [2023] QIRC 348

Perry v State of Queensland (Queensland Health)     [2024] ICQ 005

Shaw v Workers' Compensation Regulator [2022] ICQ 024

State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 003

Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549

COUNSEL:

Mr G. Perry as agent for the Appellant

Mr E. Shorten of Counsel for the Respondent

SOLICITORS:

MinterEllison for the Respondent

Reasons for Decision

 Introduction

  1. [1]
    These reasons assume familiarity with paragraphs [1] to [5] of the earlier decision in Perry v State of Queensland (Queensland Health) ('Perry No. 1').[1] Unless otherwise indicated, the definitions used in Perry No. 1 are also used in these reasons.
  1. [2]
    The issue for my determination is whether the Primary Decision is affected by an error of the kind referred to in s 557 of the IR Act.
  1. [3]
    For the reasons that follow, the Primary Decision is not affected by any such error.
  1. [4]
    The consequence is that Ms Perry's appeal to this Court against the Primary Decision will, pursuant to s 558(1)(a) of the IR Act, be dismissed.

Background

  1. [5]
    Ms Perry is employed in the Department in the position of Team Leader, Operational Services at the Gold Coast University Hospital ('the Hospital'). The Hospital is operated by the Gold Coast Hospital and Health Service ('the Health Service'). Ms Perry has been employed in that position since September 2013.[2]
  1. [6]
    Following an external investigation and release of an investigation report, by letter dated 7 March 2022 from Mr Grant Brown, Acting Executive Director, People and Operations, Ms Perry was asked to show cause why, pursuant to the Public Service Act 2008 ('the PS Act'), a disciplinary finding should not be made against her in respect of two allegations. Ms Perry was interviewed by a representative of the external investigator prior to the release of the investigation report.
  1. [7]
    Allegation One was:

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you obtained a uniformed polo shirt designed for an Environmental Services Porterage employee and provided it to Tania Walker, a person who was not authorised to possess this apparel.[3]

  1. [8]
    Twelve paragraphs of particulars followed, including:
  • reference to closed-circuit television footage on 12 July 2021, which showed Ms Perry and Ms Walker, a Casual Pool Coordinator, travelling in elevators together when, between the times of 18:57:26 and 18:57:59, Ms Perry handed Ms Walker '… what appears to be an Environmental Services polo shirt.'; and
  • that during the interview with the representative of the external investigator, Ms Perry stated:
  1. –she obtained an Environmental Services polo shirt from a cabinet in her work area;
  1. –later, she left the polo shirt on a desk in Ms Walker's work area and walked to Ward C with Ms Walker to visit a patient of the Hospital ('the patient');
  1. –she spent a few minutes with the patient before leaving Ward C and returning to the basement; and
  1. –she left the polo shirt with Ms Walker and told Ms Walker she would collect the polo shirt, but did not remember that she had left the polo shirt with Ms Walker until she received the letter of allegations from the external investigator.[4]
  1. [9]
    Mr Brown stated that, in relation to this allegation, he considered that Ms Perry may be liable for disciplinary findings on the basis that, pursuant to s 187(1)(g) of the PS Act, Ms Perry may have contravened, without reasonable excuse, cl 1.1 of the Code of Conduct for the Queensland Public Service ('the Code'), namely:

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:

  • Ensure our decision making is ethical[5]
  1. [10]
    Allegation Two was:

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you failed to comply with a Public Health Directive, restricting personal visitations in Queensland Hospitals, by visiting a patient in Ward C at the Gold Coast University Hospital.[6]

  1. [11]
    Fourteen paragraphs of particulars followed, including:
  • in a statement dated 19 September 2021 signed by the patient, the patient stated that Ms Perry and Ms Walker visited her at about 7.00 pm on 12 July 2021; and
  • that during the interview with the representative of the external investigator, Ms Perry stated:
  1. –she believed, as a staff member, that she was not a personal visitor;
  1. –the patient asked her to visit;
  1. –she was unsure why she accompanied Ms Walker on a visit to the patient and was not aware if she (Ms Walker) was entitled to visit the patient; and
  1. –no exemption was sought, or request made, prior to visiting the patient with Ms Walker on 12 July 2021.[7]
  1. [12]
    Mr Brown stated that, in relation to this allegation, he considered that Ms Perry may be liable for disciplinary findings on the basis that, pursuant to s 187(1)(g) of the PS Act, Ms Perry may have contravened, without reasonable excuse, cl 4.1 of the Code, namely:

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:

  • Comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction.[8]
  1. [13]
    In reply to Mr Brown's letter, Ms Perry provided:
  • a 21 page response;[9]
  • a statutory declaration from the patient, which confirmed that at about 7.00 pm on 12 July 2021, Ms Perry and Ms Walker visited the patient at the Hospital;[10] and
  • a written response by Ms Perry's trade union, The Australian Workers Union of Employees, Queensland  ('the AWU').[11]
  1. [14]
    In summary, the AWU, on behalf of Ms Perry, submitted that:
  • Ms Perry had never denied she gave the polo shirt to Ms Walker;[12]
  • Ms Perry denied that she gave the polo shirt to Ms Walker for the purposes of granting her (Ms Walker) access to the restricted areas within the Hospital;[13]
  • the patient had been visited by other members of staff on the same day Ms Perry visited the patient;[14] and
  • Ms Perry's choices were based on compassionate grounds and were not a wilful act to disregard the Hospital's lockdown protocols.[15]
  1. [15]
    By letter dated 26 April 2023 from Mr Brown, Ms Perry was informed that the two disciplinary allegations made against her were found to be substantiated ('the disciplinary finding decision').[16]
  1. [16]
    By appeal notice filed on 10 May 2023, Ms Perry commenced a public service appeal against the disciplinary finding decision to the Queensland Industrial Relations Commission.
  1. [17]
    On 11 May 2023, the Industrial Commissioner, to whom Ms Perry's public service appeal was allocated:
  • stayed the disciplinary finding decision; and
  • made Directions for the parties to file and serve submissions for the purposes of determining Ms Perry's public service appeal on the papers.[17]
  1. [18]
    By the Primary Decision, the Industrial Commissioner found that the disciplinary finding decision was fair and reasonable and, pursuant to s 562C(1)(a) of the IR Act, confirmed the disciplinary finding decision. 

The Primary Decision

  1. [19]
    Following an introduction, the Industrial Commissioner, in the Primary Decision, set out:
  • Ms Perry's appeal grounds against the disciplinary finding decision;[18]
  • the matters the Commission had jurisdiction to determine in respect of Ms Perry's appeal against the disciplinary finding decision;[19]
  • the relevant principles for hearing and determining a public service appeal under the IR Act;[20] and
  • the relief that could be granted by the Commission.[21]
  1. [20]
    The Industrial Commissioner then set out how she was going to approach Ms Perry's appeal. In this regard, the Industrial Commissioner marshalled the parties' submissions and evidence in respect of the following matters:
  • whether the conduct the subject of the two allegations occurred;
  • whether disciplinary grounds had been established; and
  • whether the process was procedurally fair.
  1. [21]
    I will summarise the Primary Decision by reference to those matters.

Did the conduct the subject of the allegations occur?

  1. [22]
    In relation to Allegation One, the Industrial Commissioner found that, in light of admissions made by Ms Perry, it was fair and reasonable for Mr Brown to find that Allegation One was substantiated.
  2. [23]
    In this regard, the Industrial Commissioner, by reference to Ms Perry's material as footnoted in the Primary Decision, stated:[22]

[50]  With respect to Allegation one, Mrs Perry admitted that she obtained a uniformed polo shirt and provided it to Ms Walker on 12 July 2021. Mrs Perry admitted that she knew that Ms Walker was not authorised to have the uniformed polo shirt. Mrs Perry admitted to the investigator that she was aware of the process for signing out a uniformed polo shirt but she did not follow that process.

  1. [24]
    Furthermore, as pointed out by the Respondent in its submissions to this Court, the Industrial Commissioner correctly noted that when Mr Brown framed Allegation One, it was not put on the basis that there was any specific intention by Ms Perry in providing the polo shirt to Ms Walker.[23]
  2. [25]
    In relation to Allegation Two, the Industrial Commissioner, by reference to the material before her, stated:[24]
  1. [56]
    With respect to Allegation two, Mrs Perry has admitted to visiting a patient on 12 July 2021.  That is clear.
  1. [57]
    There was a Public Health Directive in place on 12 July 2021.  Although Mr Lacy referred to the wrong directive in his investigation report, I note that Allegation two does not specify which Public Health Directive - but rather it simply alleged that Mrs Perry's conduct failed to comply with "a Public Health Directive, restricting personal visitations in Queensland Hospitals." 
  1. [58]
    It is not in dispute between the parties that it was the Queensland Health's Hospital Entry Direction that applied on 12 July 2021.  In correspondence dated 26 April 2023, Mr Brown accepted the Appellant's submission that:

… Mr Lacy relied on the wrong public health direction during the Investigation Report.  I accept this is correct, and the applicable public health direction on 12 July 2021 was the Hospital Entry Direction. 

  1. [59]
    However, Mr Brown's correspondence went on to state that had no material impact on his findings because the requirements of the public health directions were substantially the same in that respect:

 … this has no material impact on my finding because the requirements of the public health direction relied on by Mr Lacy are substantially the same as those contained in the Hospital Entry Direction.  I do not accept that it is reasonable for you to have formed a view that you were not a 'visitor' for the purposes of the Hospital Entry Direction because you were a staff member working at the hospital.  The requirements of the Hospital Entry Direction are clear and unambiguous.  I do not find that your view is supported by the wording of the Hospital Entry Direction, which describes the circumstances in which a patient of a hospital in a restricted area (which included the Gold Coast City area per the Queensland COVID-19 Restricted Areas (No. 15) in place at the time) may have visitors.  This is also reflected in the 'Staff alert Coronavirus update' issued on 2 July 2021.

  1. [60]
    The Public Health Directive in place at the relevant time restricted personal visitations in Queensland Hospitals.  In her interview with Mr Lacy on 5 October 2021, Mrs Perry stated that no exemption was sought, or request made prior to visiting the patient with Ms Walker on 12 July 2021.
  1. [26]
    The Industrial Commissioner then went on to consider the evidence in relation to the nature of Ms Perry's visit to the patient. The Industrial Commissioner decided:[25]
  1. [61]
    The final test with respect to the whether or not allegation two ought be substantiated is the nature of Mrs Perry's visit to the patient.  Mrs Perry submitted that "her choices were based on compassionate grounds", that both she and Ms Walker were "visiting this patient in a personal capacity" and that she was aware that the patient's "immediate family was shut out at this time from visiting due to Co-Vid".  Further, Mrs Perry told Mr Lacy that she believed that as a staff member she was not a personal visitor, that she was unsure why she accompanied Ms Walker to visit the patient and that she was not aware whether Ms Walker was entitled to do so.
  1. [62]
    Mrs Perry admitted that she showed Mrs Walker to where the patient was located within the hospital.  Further, the response provided by the AWU dated 4 April 2022 includes the following summary points:

xi 5.3 - Ms Perry highlights that her choices were based on compassionate grounds and were not a wilful act to disregard the GCUH's lockdown protocols.

xii 7 - Ms Perry notes that the investigator has erroneously relied on CHO Directive No. 4 as the in-force directive at the time of the incident.  Ms Perry correctly highlights that CHO directive 1 was in force at the time and was much more limited in terms of application.  Further, CHO directive (No. 1) does not have any provisions relating to staff being included as part of those prohibited from visiting patients in the wards.  The misconception was that prohibition applied to 'outside visitors' and not staff.

xiii 8 - Ms Perry highlights that both Ms Perry and Ms Walker were workers and visiting this patient in a personal capacity.

  1. [63]
    The COVID-19 Alert sent to all staff on 2 July 2021 stated:

Statewide restrictions on hospitals, aged care, disability care and correctional facilities will continue to apply with no personal visitors allowed for the next two weeks.  This means that visitors are not permitted in our facilities, with the exception of end of life care, care of a minor, support person in the birth suite or a disability carer.

  1. [64]
    Mr Brown observed that:

 … I consider that the fact (the patient's) 'immediate family was shut out at this time from visiting due to Co-Vid' (page 5 of the response to allegations dated 5 October 2021) should have been an indication that visitation from hospital staff members would also be restricted.

  1. [65]
    Mr Brown stated that "I have taken into account your suggestion that there is no boundary between your visit to (the patient) on 12 July 2021 and the other visits made to (the patient) in the course of your duties. However, I have considered both your account of your visit with (the patient) and (the patient's) statement, which support the suggestion that you visited (the patient) to provide emotional support in your capacity as her friend, and not in the course of your usual duties.  Similarly, it was not within your role to accompany Ms Walker to visit (the patient), especially in circumstances where Ms Walker is employed in an administrative role and does not attend the wards or visit patients in the usual course of her work." 
  1. [66]
    I concur with Mr Brown's assessment of the evidence with respect to Allegation two.  That is, that Mrs Perry did visit the patient, that a Public Health Directive restricting personal visitations in Queensland Hospitals was in place on 12 July 2021, and that the nature of Mrs Perry's visit to the patient was personal not work-related.
  1. [67]
    On that basis, it was fair and reasonable for Mr Brown to find Allegation two to be substantiated.

Have disciplinary grounds been established?

  1. [27]
    The Industrial Commissioner, in considering this matter, referred to s 91(1)(h) of the Public Sector Act 2022 (the equivalent of s 187(1)(g) of the repealed PS Act), namely, that a public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.[26] The Industrial Commissioner stated that because of Ms Perry's admissions, the decision maker (Mr Brown) could be reasonably satisfied disciplinary grounds had been established.[27]
  1. [28]
    In particular, the Industrial Commissioner stated that she considered Ms Perry's explanation for her visit to the patient, namely, to provide emotional support to the patient in her capacity as a friend and not in the course of her usual duties. The Industrial Commissioner found that the explanation did not meet the threshold test for a '… reasonable excuse'. In making this determination, the Industrial Commissioner stated she agreed with Mr Brown's assessment that the Health Service reasonably expected employees to comply with public health directions applicable to their employment.[28]

Was the process procedurally fair?

  1. [29]
    The Industrial Commissioner, for the comprehensive reasons she gave in paragraphs [75] to [91] of the Primary Decision, found that the disciplinary process, adopted by the Department, complied with the relevant provision of the relevant directive, namely cl 9 of Directive 05/23: Discipline.
  1. [30]
    For all these reasons, the Industrial Commissioner found that the disciplinary finding decision was fair and reasonable and, pursuant to s 562C(1)(a) of the IR Act, confirmed the disciplinary finding decision.[29]

Ms Perry's appeal to this Court

  1. [31]
    There are a number of difficulties with Ms Perry's application to appeal against the Primary Decision to this Court.
  1. [32]
    Pursuant to s 557(1) of the IR Act, a person aggrieved by a decision of the Commission may appeal, as of right, to this Court on the ground of error of law or excess, or want, of jurisdiction.
  1. [33]
    Pursuant to s 557(2) of the IR Act, a person aggrieved by decision of the Commission may appeal to this Court on a ground other than error of law or excess, or want, of jurisdiction, only with the Court's leave which, pursuant to s 565 of the IR Act, must be given if the Court is satisfied it is in the public interest to do so and may not be given on any other basis.
  1. [34]
    Further, s 567 of the IR Act provides:

567  Nature of appeal

  1.  An appeal to an industrial tribunal, other than a public service appeal to the commission, is by way of re-hearing on the record.
  1.  However, the industrial tribunal may hear evidence afresh or additional evidence if the industrial tribunal considers it appropriate to effectively dispose of the appeal.
  1. [35]
    An appeal by way of re‑hearing is a procedure for the correction of error in that the existence of an error, whether of law or fact, on the part of the court at first instance, is an indispensable condition of a successful appeal.[30] Even where it can be demonstrated that there is an error of law or of fact in the decision appealed against, it must be shown that the error of law or fact vitiates the decision before an appellate court would allow the appeal.[31]
  1. [36]
    If a decision, the subject of a public service appeal, was determined by the Commission to be, or not to be, fair and reasonable,[32] and there is an appeal to this Court against the decision of the Commission alleging it is affected by an error of law, then, for the reasons I recently gave in State of Queensland (Queensland Health) v Hume (No. 3),[33] the deferential standard of appellate review, as articulated in House v The King, is applied.[34]
  1. [37]
    In that regard, the High Court in House v The King relevantly stated:

The manner in which an appeal against an exercise of discretion should be determined is governed by established principles. It is not enough that the judges composing the appellate court consider that, if they had been in the position of the primary judge, they would have taken a different course. It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but, if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.[35]

  1. [38]
    For the reasons that I give below, as best as I understand her case on appeal following a consideration of the oral submissions made on behalf of Ms Perry, the substantive complaint raised by her about the Primary Decision concerns the finding in respect of Allegation Two, namely, that the Industrial Commissioner, in deciding that Mr Brown's decision about Allegation Two was fair and reasonable, failed to take into account certain  relevant considerations. As such, the complaint made by Ms Perry is that the Industrial Commissioner erred in law in deciding that Allegation Two was substantiated.
  1. [39]
    However, Ms Perry's application to appeal:
  • does not state concise grounds of appeal; and
  • attaches a document comprising 57 paragraphs, which is headed 'Appellant's Outline of the Argument', and which contains a range of contentions and submissions.
  1. [40]
    Rule 132(1)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') provides that pt 5 of the Rules applies to an appeal to this Court from a decision of the Commission. Part 5, div 3 of the Rules specifically applies to an application to appeal pursuant to s 557 of the IR Act. Relevantly, r 139(2)(c) of the Rules provides that an application to appeal must be filed and state '… concise grounds of the appeal.'
  1. [41]
    In addition to the document attached to Ms Perry's application, Ms Perry filed written submissions on 16 February 2024 ('Ms Perry's principal submissions') and filed further written submissions in reply on 2 April 2024 ('Ms Perry's reply submissions').
  1. [42]
    As the Respondent submitted:
  • Ms Perry's application to appeal, and her principal submissions, raise broad-ranging matters of both fact and law, some of which do not appear to immediately arise out of, or be connected to, the Primary Decision;
  • several themes emerge from Ms Perry's application to appeal and her principal submissions which are critical of the Industrial Commissioner's approach in the Primary Decision; and
  • Ms Perry's application to appeal, and her principal submissions, weave around those themes while relitigating the substance of the matter, including by way of fresh arguments, submissions that are plainly wrong, vague criticisms and new allegations that are not justiciable by the Court.
  1. [43]
    Mr Shorten of Counsel, who appeared for the Respondent, submitted that because of the failure of Ms Perry to comply with r 139(2)(c) of the Rules, the Court could, pursuant to s 226 of the Rules, set aside the proceeding or declare Ms Perry's application ineffectual.
  1. [44]
    There is force in this submission for two reasons.
  1. [45]
    First, although Ms Perry was self-represented at the time she filed her application to appeal and her written submissions, she was bound by the Rules just as much as a legally represented litigant. In du Boulay v Ivor Worrell & Ors[36] Muir JA stated:[37]

[69] It may be that self-represented litigants should be afforded a degree of indulgence and given appropriate assistance.  But if a self-represented person wishes to litigate, he or she is as much bound by the rules of Court as any other litigant.  Those rules exist to facilitate efficient, fair and cost-effective litigation.  The Court's duty is to act impartially and ensure procedural fairness to all parties, not merely one party who may be disadvantaged through lack of legal representation.  The other party to the litigation is entitled to protection from oppressive and vexatious conduct regardless of whether that conduct arises out of ignorance, mistake or malice.

  1. [46]
    Similarly, in Gambaro v Workers' Compensation Regulator[38] Martin J, President stated:

[13] The purpose of the rules is to provide for the just and expeditious disposition of proceedings. It is contrary to this purpose for a party to file protracted or ambiguous notices of appeal, or to supplement a notice with large amounts of material that will not assist the court in the determination of the matter. The consequence of the appellant’s noncompliance with the rules is that the court may set aside or strike out part or all of the notice of appeal.

[14]  Although the appellant is unrepresented, this does not excuse his noncompliance. A lack of legal representation is a misfortune, not a privilege. In Robertson v Hollings, Keane JA (with whom Fraser JA and Cullinane J agreed) said:

"[L]itigation is not a learning experience. The courts do not permit litigants, even unrepresented litigants, to prosecute claims which cannot proceed fairly to the other parties. It is no doubt unfortunate for Mrs Robertson that she does not have the benefit of competent legal advice and representation; but her misfortune in this regard does not license her to proceed unconstrained by the rules according to which adversarial litigation is conducted."[39]

  1. [47]
    Secondly, in an appeal to a court like this Court, the grounds of appeal play a determinative role. The jurisdiction of an appellate court ordinarily depends on the grounds of appeal that can be legally raised in support of the appeal. Under the common law system of justice, jurisdiction is the authority to decide issues between the parties and, in the case of an appellate court, that authority is governed by the issues raised in the notice of appeal and any notice of contention relied on to support the judgment against which the appeal is brought.[40] A ground of appeal is a basis upon which the appellant will contend that the judgment, or a part of the judgment, should be set aside or varied by the court in the exercise of its appellate jurisdiction.[41]
  1. [48]
    These principles must be recognised and observed by self-represented appellants in this Court.
  1. [49]
    However, in the present case, the Respondent did not make an earlier application to set aside the proceeding or to declare, as  ineffectual, Ms Perry's application to appeal.[42] Rather, the Respondent has met the themes that emerge from Ms Perry's various submissions about why the Primary Decision was wrong. It further submits that Ms Perry's appeal to this Court can be determined on its merits by considering those specific themes.
  1. [50]
    I will deal with Ms Perry's appeal on its merits given the Respondent's approach.
  1. [51]
    In her oral submissions to this Court, Ms Perry's challenge to the Primary Decision was in respect of the Industrial Commissioner's decision about Allegation Two. I will first deal with Ms Perry's challenge to the Primary Decision about Allegation Two.

Ms Perry's complaints about the Primary Decision in respect of Allegation Two

  1. [52]
    At the hearing of Ms Perry's appeal, leave was given to Ms Perry to be represented by her husband as an agent within the meaning of s 529(1)(e) of the IR Act.
  1. [53]
    Ms Perry's principal and reply submissions, and the oral submissions made by Mr Perry, were not clear and were difficult to follow. There was no structure to the oral submissions made by Mr Perry and, in many instances, they were ambiguous. As a consequence, I had to ask Mr Perry a number of questions, during the course of his oral submissions, to clarify the specific complaints that were being made about the Primary Decision.
  1. [54]
    I understand Ms Perry's complaints about the Primary Decision, so far as it concerns Allegation Two, to be as follows.
  1. [55]
    First, as set out in paragraph [63] of the Primary Decision, on 2 July 2021, a COVID-19 Alert was issued by a Dr Jeremy Wellwood to all staff in the Department, including Ms Perry, namely:

Statewide restrictions on hospitals, aged care, disability care and correctional facilities will continue to apply with no personal visitors allowed for the next two weeks.  This means that visitors are not permitted in our facilities, with the exception of end of life care, care of a minor, support person in the birth suite or a disability carer  ('the July COVID-19 Alert').[43]

  1. [56]
    Secondly, at the time of the July COVID-19 Alert, s 39 of the Work Health and Safety Regulation 2011 was in operation and provided:

39 Provision of information, training and instruction

  1. This section applies for section 19 of the Act to a person conducting a business or undertaking.
  2. The person must ensure that information, training and instruction provided to a worker is suitable and adequate having regard to—
    1. (a)
      the nature of the work carried out by the worker; and
    1. (b)
      the nature of the risks associated with the work at the time the information, training or instruction is provided; and
    1. (c)
      the control measures implemented.
  3. The person must ensure, so far as is reasonably practicable, that the information, training and instruction is provided in a way that is readily understandable by any person to whom it is provided.

Maximum penalty–60 penalty units.[44]

  1. [57]
    Thirdly, at the time of the July COVID-19 Alert, the Department had in place a series of policies dealing with work health and safety issues, described by Mr Perry as               '…the 401 series'.[45]
  1. [58]
    The relevance of the policies, contained in the 401 series, according to Mr Perry, was that:
  • consistently with s 19 of the Work Health and Safety Act 2011[46]and s 39 of the Work Health and Safety Regulation 2011, the policies in the 401 series[47] provided that:
  1. –the work health and safety manager of the Hospital was responsible for the health and safety of the workers in Ms Perry's specific work unit in the Hospital,[48] which Mr Perry referred to as Operational Support Services ('OSS');[49]
  1. –after appropriate risk assessments, senior managers within OSS were responsible for giving instructions to workers within OSS about health and safety issues;[50] and
  1. –instruction for work health and safety procedures was to be provided to workers in OSS.[51]
  1. [59]
    Fourthly:
  • the July COVID-19 Alert emanated from a direction, given by the Chief Health Officer, that members of the public, not staff, could not visit patients;[52]
  • because the policies contained in the 401 series provided that senior managers were to give instructions to workers within OSS about health and safety issues, the obligation to give a direction to staff about not visiting patients, after undertaking a risk assessment, was with the senior managers within the OSS and no such direction should have come from outside of OSS;[53]
  • there was no instruction given by the senior managers of OSS that employees within OSS could not visit patients when the employees were on duty;[54] and
  • in any event, there was a well-known culture of staff visiting patients in breach of directions that they could not visit patients.[55]
  1. [60]
    Fifthly:
  • the July COVID-19 Alert was ambiguous about whether it applied to staff in OSS[56] and, as a consequence, Ms Perry made a mistake about the application of the July COVID-19 Alert because she thought it only applied to public visitors and not to staff;[57]  and
  • no instruction was given to employees within OSS about the July COVID-19 Alert.[58]
  1. [61]
    Mr Perry submitted that these considerations were relevant and were not taken into account by the Industrial Commissioner in coming to the conclusion in the Primary Decision that Mr Brown's decision, that Allegation Two was substantiated, was fair and reasonable.[59]
  1. [62]
    Mr Perry asserts that the complaints about the Primary Decision made in this Court were referred to in the written material that was filed with Ms Perry's appeal notice to the Commission.[60] Accepting that to be the case, in paragraph [35] of the Primary Decision, the Industrial Commissioner stated that she had carefully considered all submissions and materials.
  1. [63]
    In determining that Mr Brown's decision about Allegation Two was fair and reasonable, the Industrial Commissioner, in her reasons, did not refer to the specific complaints Ms Perry made to this Court about that decision.
  1. [64]
    In my view, the matters raised on behalf of Ms Perry, by Mr Perry, do not give rise to any error of law (or of fact) in the Primary Decision. There are a number of reasons for this.
  1. [65]
    First, Ms Perry does not dispute that on 12 July 2021, she visited the patient in question, not as part of her duties in her position, but by way of a personal visit to the patient.[61]
  1. [66]
    Secondly, despite the submissions Mr Perry made on behalf of Ms Perry about the responsibility of senior managers within the OSS to give instruction to workers within OSS about health and safety issues, the July COVID-19 Alert was issued by the Department to all staff. Mr Perry does not contend that the July COVID-19 Alert was invalidly made.[62]
  1. [67]
    Thirdly, there is no ambiguity about the content of the July COVID-19 Alert. Specifically, it stated that the existing Statewide restrictions '… on hospitals' would continue to apply with '… no personal visitors allowed for the next two weeks.' The July COVID-19 Alert was issued on 2 July 2021. Ms Perry was working in the Hospital as at that date.
  1. [68]
    Further, to add absolute clarity, the July COVID-19 Alert then provided:

This means that visitors are not permitted in our facilities, with the exception of end of life care, care of a minor, support person in the birth suite or a disability carer.

  1. [69]
    It was not submitted that any of the named exceptions applied to the patient Ms Perry visited.
  1. [70]
    As submitted by the Respondent, the July COVID-19 Alert could not have been clearer. It expressly provided that, in a hospital, no personal visitors were allowed for the next two weeks. 
  1. [71]
    Fourthly, because of the clear and specific purpose of the July COVID-19 alert, no training or instruction was needed to be given to the staff to whom it applied, including Ms Perry. That is, the July COVID-19 alert was quite unlike the matters contemplated in s 39 of the Work Health and Safety Regulation 2011. That section provides that training and instruction is required to be given to workers that is suitable and adequate having regard to the nature of the work carried out by the worker and the nature of the risks and control measures implemented. The July COVID-19 alert clearly and specifically prohibited personal visits to patients for the following two weeks, other than in respect of the named exceptions. 
  1. [72]
    Fifthly, the July COVID-19 Alert was issued prior to Ms Perry's personal visit to the patient on 12 July 2021. No submission was made that Ms Perry was unaware of the July COVID-19 Alert as at the date of her visit to the patient. In fact, the express submission made by Mr Perry was that Ms Perry misunderstood the July COVID-19 Alert.[63]
  1. [73]
    Sixthly, if there was evidence of a culture of staff undertaking personal visits to patients, despite the July COVID-19 Alert or some other similar direction, then that is not a matter that was relevant in deciding whether the decision by Mr Brown, that Allegation Two was substantiated, was fair and reasonable. 
  2. [74]
    This is because:
  • the July COVID-19 Alert applied to Ms Perry;
  • Ms Perry was aware of the direction contained in the July COVID-19 Alert;
  • on the undisputed facts before the Industrial Commissioner, Ms Perry did not comply with that direction; and
  • the assertion or fact that other employees may have not complied with the July COVID-19 Alert, or a similar direction, is irrelevant to the question of whether Ms Perry herself contravened, without reasonable excuse, a reasonable and lawful instruction given to her.
  1. [75]
    The assertion that other staff may have contravened the July COVID-19 Alert cannot change the fact that Ms Perry contravened the direction contained in it. Any evidence of a culture of non-compliance by other staff with such a direction may be relevant to the determination of any disciplinary penalty to be imposed against Ms Perry. However, that is a matter for the relevant decision-maker to determine.
  1. [76]
    Finally, for all these reasons, the complaints made to this Court, about the various risk assessment and health and safety obligations of senior managers in Ms Perry's work unit, divert attention from the actual issue that was before the Industrial Commissioner. The task confronting the Industrial Commissioner was to decide whether the disciplinary finding decision, in respect of Mr Brown's decision that Allegation Two was substantiated, was fair and reasonable. None of the issues raised by Ms Perry in her appeal to this Court were relevant to that determination. The task of the Industrial Commissioner was not to analyse, by reference to the Department's work health and safety obligations, and to its policies about those matters, whether the instruction the subject of the July COVID-19 Alert was more appropriately issued and implemented from within Ms Perry's work unit. The July COVID-19 Alert applied throughout the State in the middle of the COVID-19 pandemic. Further, the July COVID-19 Alert was unambiguous in its terms. No training was required to understand it. Fundamentally, the Industrial Commissioner had to decide whether the July COVID-19 Alert applied to Ms Perry and whether she had contravened the reasonable and lawful instruction contained in it.
  1. [77]
    While the Industrial Commissioner carefully considered all submissions and materials before her, the Industrial Commissioner was correct not to be guided or affected by the considerations pressed by Ms Perry. They were irrelevant to the decision to be made by the Industrial Commissioner.
  1. [78]
    The decision by the Industrial Commissioner that the disciplinary finding decision, to the extent it concerned Allegation Two, was fair and reasonable, is not affected by any error of law. Further, on the basis of the admissions made by Ms Perry about her visit to the patient, there was no mistake of fact or error of fact made by the Industrial Commissioner in the Primary Decision.

Ms Perry's complaints about the Primary Decision in respect of Allegation One

  1. [79]
    In her principal submissions, Ms Perry submits that the relevant OSS Uniform and Dress Code lacked clear restrictions or definitions and that OSS managers failed to provide instructions '… beyond this policy, leading to easily accessible uniforms without standardised security or consistent policy.' Ms Perry then submits:

This inconsistency resulted in mixed messaging observed on 12 July 2021 and until weeks after that. Despite allegations of inappropriate possession of a Red Polo Shirt, there's a lack of evidence supporting a breach of policy, suggesting a rush to judgment. The possession of the shirt does not warrant charges or tarnish the entity's reputation, as there is no material damage. The CSI investigation of the incident identified procedural errors, and Mr Brown ignored this factor.

  1. [80]
    These submissions fail to take into account the material before the Industrial Commissioner. That material included Ms Perry's admission that she knew Ms Walker was not authorised to have the uniformed polo shirt, and her admissions that she was aware of the process for signing out a uniformed polo shirt and that she did not follow that process. In light of those admissions, any submission about a lack of clarity or a lack of training about uniforms are irrelevant considerations. Further, as set out earlier, there was no part of Allegation One that concerned any specific intent on the part of Ms Perry. Any issues about any damage to the Department may be matters relevant to the determination of the disciplinary penalty. They are not relevant as to whether the disciplinary finding decision was fair and reasonable.
  1. [81]
    Ms Perry did not particularise the alleged procedural errors about Allegation One in her submissions to this Court. In Ms Perry's submissions to the Industrial Commissioner, under the heading of 'Summary of apparent mistakes', some procedural errors are asserted.[64] Most of these were about Allegation Two. As best as I can make out, the relevant assertion about Allegation One was that there was no proof Ms Walker wore the polo shirt. Given the content of Allegation One and the admissions made by Ms Perry, it is unsurprising that matter was not relevant to the decision made by Mr Brown. For the same reasons, it was irrelevant to the decision of the Industrial Commissioner. No errors of law or of fact are disclosed in the Primary Decision about Allegation One.

Conclusion

  1. [82]
    For the reasons given, none of the complaints made by Ms Perry about the Primary Decision have any validity.
  1. [83]
    Ms Perry's appeal should be dismissed.
  1. [84]
    Ms Perry's disciplinary matter should be finalised by the Department.

Order

  1. [85]
    I make the following order:

The appeal is dismissed.

Footnotes

[1] [2024] ICQ 005.

[2] Perry v State of Queensland (Queensland Health) [2023] QIRC 348 ('the Primary Decision'), [1]-[2] (Industrial Commissioner McLennan).

[3] Form 89 - Appeal notice - Public Sector Act 2022 filed by Ms Perry on 10 May 2023 ('Ms Perry's appeal notice'), Attachment 'AP-01', page 2 of 8.

[4] Ms Perry's appeal notice, Attachment 'AP-01', page 2 of 8.

[5] Ms Perry's appeal notice, Attachment 'AP-01', page 3 of 8.

[6] Ms Perry's appeal notice, Attachment 'AP-01', page 3 of 8.

[7] Ms Perry's appeal notice, Attachment 'AP-01', pages 3-5 of 8.

[8] Ms Perry's appeal notice, Attachment 'AP-01', page 5 of 8.

[9] Ms Perry's appeal notice, Attachment 'AP-02'.

[10] Ms Perry's appeal notice, Attachment 'AP-03'.

[11] Ms Perry's appeal notice, Attachment 'AP-04'.

[12] Ms Perry's appeal notice, Attachment 'AP-04', para. 4 b).

[13] Ms Perry's appeal notice, Attachment 'AP-04', para. 5 a).

[14] Ms Perry's appeal notice, Attachment 'AP-04', para. 6 v).

[15] Ms Perry's appeal notice, Attachment 'AP-04', para. 6 ix).

[16] Ms Perry's appeal notice, Attachment 'AP-05'.

[17] The Primary Decision (n 2) [16].

[18] Ibid [17].

[19] Ibid [18]-[22].

[20] Ibid [27]-[30].

[21] Ibid [31].

[22] Footnotes omitted.

[23] The Primary Decision (n 2), paras. [52]-[55]. .

[24] Footnotes omitted.

[25] Footnotes omitted.

[26] The Primary Decision (n 2), [68] and [71].

[27] Ibid [72].

[28] Ibid [73] and [74].

[29] Ibid [93]-[94].

[30] Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; (2018) 264 CLR 541, [30] (Gageler J).

[31] Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639, 645 (Shepherdson J, Kelly J at 640 agreeing) and McEnearney v Simon Blackwood (Workers’ Compensation Regulator) [2019] ICQ 7, [5] (Martin J, President).

[32] Within the meaning of s 562B(3) of the Industrial Relations Act 2016.

[33] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 003, [58]-[64].

[34] [1936] HCA 40; (1936) 55 CLR 499 ('House')

[35] House (n 34) 504-505 (Dixon, Evatt and McTiernan JJ).

[36] [2009] QCA 63 (Frazer JA at [72] agreeing).

[37] Citations omitted.

[38] [2017] ICQ 005.

[39] Citations omitted.

[40] Gipp v The Queen [1998] HCA 21; (1998) 194 CLR 106, [58] (McHugh and Hayne JJ).

[41] Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another [2002] FCAFC 157; (2002) 234 FCR 549, [4] (Branson J).

[42] As occurred, for example, in Shaw v Workers' Compensation Regulator [2022] ICQ 024.

[43] T 1-41, ll 19-31.

[44] T 1-81, l 36.

[45] T 1-35, l 28 and l 45. The number 401 is a principal identification number given by the Department to that series of polices. A specific policy referred to by Mr Perry was QH-IMP-401-3: 2020 'Health, safety and wellbeing risk management standard', see T 1-83, ll 5-9.

[46] Which, relevantly, imposes a duty on a person conducting a business or undertaking, to ensure, so far as is reasonably practicable, the health and safety of workers engaged by the person.

[47] T 1-82, ll 34-35.

[48] T 1-36, ll 33-44.

[49] T 1-35, ll 35-36.

[50] T 1-51, ll 31-46.

[51] T 1-64, ll 26-35.

[52] T 1-45, ll 6-11.

[53] T 1-43, l 34 to T 1-44, l 30.

[54] T 1-43, ll 29-38, 1-45, ll 13-16 and 1-46, ll 41-43.

[55] T 1-42, ll 19-25 and T 1-44, ll 38-44.

[56] T 1-43, ll 14-16.

[57] T 1-48, ll 39-44.

[58] T 1-64, ll 1-21.

[59] T 1-81, ll 21-22.

[60] T 1-64, ll 17-20 and T 1-81, ll 21-25.

[61] T 1-46, ll 22-26.

[62] T 1-48, ll 25-32.

[63] T 1-48, ll 25-44.

[64] Ms Perry's appeal notice, Attachment 'AP-02', pages 19 and 20.

Close

Editorial Notes

  • Published Case Name:

    Perry v State of Queensland (Queensland Health) (No. 3)

  • Shortened Case Name:

    Perry v State of Queensland (Queensland Health) (No. 3)

  • MNC:

    [2024] ICQ 12

  • Court:

    ICQ

  • Judge(s):

    Merrell DP

  • Date:

    20 May 2024

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
Barmuncol Pty Ltd v Maroochy Shire Council [1983] 2 Qd R 639
2 citations
Jump To
Cite 1 - [1983] 2 Qd R 639
Cite 2 - [1983] 2 Qd R 639
du Boulay v Worrell [2009] QCA 63
2 citations
Jump To
Cite 1 - [2009] QCA 63
Cite 2 - [2009] QCA 63
Gambaro v Workers' Compensation Regulator [2017] ICQ 5
2 citations
Jump To
Cite 1 - [2017] ICQ 5
Cite 2 - [2017] ICQ 5
Gipp v R (1998) 194 CLR 106
2 citations
Jump To
Cite 1 - (1998) 194 CLR 106
Cite 2 - (1998) 194 CLR 106
Gipp v The Queen [1998] HCA 21
2 citations
Jump To
Cite 1 - [1998] HCA 21
Cite 2 - [1998] HCA 21
House v R (1936) HCA 40
2 citations
Jump To
Cite 1 - (1936) HCA 40
Cite 2 - (1936) HCA 40
House v The King (1936) 55 CLR 499
2 citations
Jump To
Cite 1 - (1936) 55 CLR 499
Cite 2 - (1936) 55 CLR 499
McEnearney v Simon Blackwood (Workers' Compensation Regulator) [2019] ICQ 7
2 citations
Jump To
Cite 1 - [2019] ICQ 7
Cite 2 - [2019] ICQ 7
Minister for Immigration and Border Protection v SZVFW (2018) 264 CLR 541
2 citations
Jump To
Cite 1 - (2018) 264 CLR 541
Cite 2 - (2018) 264 CLR 541
Minister for Immigration and Border Protection v SZVFW & Ors [2018] HCA 30
2 citations
Jump To
Cite 1 - [2018] HCA 30
Cite 2 - [2018] HCA 30
Perry v State of Queensland (Queensland Health) [2023] QIRC 348
2 citations
Jump To
Cite 1 - [2023] QIRC 348
Cite 2 - [2023] QIRC 348
Perry v State of Queensland (Queensland Health) [2024] ICQ 5
2 citations
Jump To
Cite 1 - [2024] ICQ 5
Cite 2 - [2024] ICQ 5
Shaw v Workers' Compensation Regulator [2022] ICQ 24
2 citations
Jump To
Cite 1 - [2022] ICQ 24
Cite 2 - [2022] ICQ 24
State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3
2 citations
Jump To
Cite 1 - [2024] ICQ 3
Cite 2 - [2024] ICQ 3
Sydneywide Distributors Pty Ltd & Anor v Red Bull Australia Pty Ltd & Anor [2002] FCAFC 157
2 citations
Jump To
Cite 1 - [2002] FCAFC 157
Cite 2 - [2002] FCAFC 157
Sydneywide Distributors Pty Ltd and Another v Red Bull Australia Pty Ltd and Another (2002) 234 FCR 549
2 citations
Jump To
Cite 1 - (2002) 234 FCR 549
Cite 2 - (2002) 234 FCR 549

Cases Citing

Case NameFull CitationFrequency
Perry v State of Queensland (Queensland Health) (No. 4) [2025] QIRC 1381 citation
1

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