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Murphy v Darling Downs Hospital and Health Service[2015] QIRC 145

Murphy v Darling Downs Hospital and Health Service[2015] QIRC 145

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Murphy v Darling Downs Hospital and Health Service [2015] QIRC 145

PARTIES:

Murphy, Lesleigh Eunice

(Applicant)

v

Darling Downs Hospital and Health Service

(Respondent)

CASE NO:

TD/2013/78

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

5 August 2015

HEARING DATES:

7-9 April 2014 (hearing)

19 May 2014 (Appellant's submissions)

13 June 2014 (Respondent's submissions)

27 June 2014 (Appellant's submissions in response)

MEMBER:

Industrial Commissioner Knight

ORDERS :

  1. Application dismissed

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - where worker suffered previous physical and psychological workplace injuries - where worker made complaints of bullying regarding co-worker - where Applicant resisted providing medical clearance - employer regarded clearance crucial in circumstances - employer terminated services due to inability to ensure safety of worker -  application dismissed.

CASES:

Hospital and Health Boards Act 2001

Industrial Relations Act 1999

Public Service Act 2008

Public Service Regulation 2008

Work Health and Safety Act 2011

Abbott - Etherington v Houghton Motors Limited (1995) 63 IR at 397

Australian and International Pilots Association v Qantas Airways Ltd [2014] FCA 32

Barsha v Motor Financial Wizard Sales Pty Ltd (2002) 171 QGIG 139

Battle v Bundagen Co-Operative Ltd (No 2) [2011] NSWCA 38

Costello v State of Queensland (Department of National Parks, Recreation, Sport and Racing) [2014] QIRC 064

Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 [37]

Lee Dawn Raw and State of Queensland (Queensland Health) (TD/2011/43)

LGSS Pty Ltd v Egan [2002] NSWSC 1171

Liddle v Lembke (1994) 56 IR 447

Lisa Slavin v Horizon Holdings Pty Ltd (U2011/12564) (2012) FWA 5588

McVeigh v Willarra Pty Ltd [1984] FCA 379

Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50

Quaneta Greenwood and Queensland Health (TD/2009/187)

Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767

R Forrest and Harvey Bay Golf and Country Club Inc QIRC (No B1246 of 1995)

R v Darling Island Stevedoring and Lighterage Co Ltd [1938] 60 CLR 601

Re Kenner; Ex Parte Minister for Education [2003] WASCA 37

Schoeman v Director-General Department of Attorney-General and Justice [2013] NSWRIR Comm 1018

Stewart v Creek Gold (2003) 174 QGIG 105

Thompson v IGT (Australia) Pty Ltd [2008] FCA 994; 173 IR 395

APPEARANCES:

Mr K. Watson instructed by Susan Moriarty and Associates for the Applicant.

Mr C. Murdoch instructed by Minter Ellison for the Respondent.

Decision

  1. [1]
    This is an application for reinstatement made by Ms Lesleigh Murphy (Ms Murphy/"the Applicant") against Darling Downs Hospital and Health Service ("the Respondent") which has been made pursuant to s 74 of the Industrial Relations Act 1990 ("the Act").
  1. [2]
    The Applicant seeks reinstatement to her formerly held position of Clinical Nurse Consultant for the Child Protection Unit ("CPU") at the Toowoomba Hospital.  Ms Murphy held this permanent full time position at the level of a Nurse Grade 7.

Witnesses

  1. [3]
    Witnesses for the Applicant were:
  • Ms Lesleigh Murphy - the Applicant;
  • Dr Oliver Wagner - General Practitioner;
  • Mr Timothy Bush - Accountant.
  1. [4]
    Witnesses for the Respondent were:
  • Ms Jodie O'Dea - Principal Human Resource Consultant, Darling Downs Hospital and Health Service, Queensland Health;
  • Dr Peter Bristow - Chief Executive, Darling Downs Hospital and Health Service, Queensland Health;
  • Ms Colleen Rasmussen - Director of Nursing/Facility Manager, Dalby Hospital;
  • Ms Carolyn Bourke - Nurse Unit Manager, Harbison Maternity & Special Care Nursery, Toowoomba Hospital;
  • Lyn Rowland - Chief Human Resource Officer, Queensland Health.

 The Applicant's employment history

  1. [5]
    The Applicant is seeking reinstatement or compensation on the basis she claims she was unfairly dismissed on the grounds that:
  1. (a)
    the word "request" cannot form the basis of a direction or instruction in any circumstances and she was thus "not guilty" of the conduct for which she was charged; and
  2. (b)
    she says she was not afforded natural justice; or
  3. (c)
    if the Commission is against her on (a) and (b), then she says her dismissal was "gravely disproportionate" to her conduct.

 The background to the Application

  1. [6]
    In order to understand the background to this Application, it is helpful firstly to refer to a chronology provided by the Respondent which details a series of events which have occurred between itself and Ms Murphy over a relatively extensive period of time.
  1. [7]
    This is necessary as the Applicant's claim, essentially, but not only, relies upon an interpretation of relevant Legislation and law relating to employment within the public sector.  In terms of the chronology, the Applicant makes no direct criticism of the factual elements as it relates to correspondence sent and received between the parties.

 The Respondent's outline of the chronology of events

  1. [8]
    Ms Murphy had been absent from her substantive position since 9 November 2009 as a result of a medical condition.
  1. [9]
    The Respondent required a clearance for Ms Murphy to return to her substantive position given that her specialist medical evidence that such a return would be "detrimental".
  1. [10]
    Over a period of ten months, Ms Murphy refused to provide a medical clearance, notwithstanding that she had said she was ready and fit to return to her substantive role.
  1. [11]
    The Respondent submits that in circumstances where:
  1. (a)
    the Respondent made lawful requests for the Applicant to provide a clearance;
  2. (b)
    the Applicant was clearly made aware that her persistent refusal to provide a clearance was regarded by her employer as a serious matter;
  3. (c)
    despite this, she continued to maintain the incorrect position that a clearance was not necessary or had been provided; and
  4. (d)
    she was given ample opportunity to provide such a clearance and avoid termination of employment;

 the dismissal was not harsh, unjust or unreasonable and the application should be dismissed.

 The Respondent's submissions concerning the history of absences by Ms Murphy

  1. [12]
    There had been a number of periods of absences from work by Ms Murphy because of stress and anxiety.
  1. [13]
    On about 25 January 2008, Ms Murphy had suffered both physical and psychological injuries for which she took extended leave and received workers' compensation.
  1. [14]
    Ms Murphy returned to work on about 17 November 2008 on a suitable duties program.  As a part of that program, Ms Murphy commenced a placement on about 5 March 2009 in the Child Protection Unit (CPU) at the Toowoomba Base Hospital.  Later she was appointed to the permanent position with the CPU as a Clinical Nurse Consultant (Child Protection) at a Nurse Grade 7 classification level.  In that position, Ms Murphy said the work could encompass both "important responsibilities" and also could be "very emotional". 
  1. [15]
    On 2 November 2009, Ms Murphy lodged a workers' compensation claim in respect of circumstances relating to her appointment to the CPU and alleged bullying behaviour by another employee.  This claim was accepted, but only in relation to the circumstances relating to her appointment to CPU.  It is noted 9 November 2009 was the last day worked by Ms Murphy at CPU.  Ms Murphy commenced leave on the following day citing workplace stress.
  1. [16]
    In April 2010, Ms Murphy tried to return to work on a suitable duties program with the District Education Unit.  This was unsuccessful for her.  A further period of leave occurred for alleged stress and anxiety.  In September 2010, Ms Murphy sought financial support from the Respondent to retrain as a midwife by undertaking a Master of Midwifery course.  The fee for the year was $13,080.00 and was paid by Ms Murphy accessing the Queensland Health Study and Research Assistance Scheme (SARAS).
  1. [17]
    In April 2011, Ms Murphy sought a placement at the Dalby Hospital.
  1. [18]
    The Applicant agreed to providing a medical clearance prior to commencing her placement at the Dalby Hospital.  That Report was provided by Dr Prior (Psychiatrist) on 11 May 2011.  Dr Prior supported Ms Murphy's return to work in the work placement role but did not clear her return to her substantive position with the CPU or in the Acute Psychiatric Services saying that it would be detrimental to her to do so. 
  1. [19]
    Ms Murphy commenced work as a student midwife at Dalby Hospital from 18 July 2011.  Her ability to do this work was authorised by her General Practitioner, Dr Wagner.
  1. [20]
    On 30 April 2012, Ms Murphy's then solicitors wrote to the Respondent advising that it was unlikely that Ms Murphy would be able to find graduate work at Dalby Hospital as a midwife as she was not in a financial position to accept a reduction in pay and conditions.  At that time she was still being paid at her substantive level as a CNC, which is higher than that of a graduate midwife.  Ms Murphy told the Respondent that on completing her midwife course, she wished to return to her substantive role and she claimed to be unaware of any impediment to her return to her substantive position.
  1. [21]
    The Respondent detailed the occasions upon which it had made requests to Ms Murphy for a medical clearance.  These were:

21.06.2012 A meeting was held with the Applicant and her Solicitor where the Respondent advised Ms Murphy that it required an independent medical report prior to her return to work.  The Respondent also sought her consent to attend an examination with a Psychiatrist of her choice from a panel of three specialists.

Ms Murphy refused to consent to this. 

28.06. 2012 The Respondent wrote to Ms Murphy reiterating its request that she consent to this type of examination explained above.

Ms Murphy again refused this request. 

06.08.2012 In light of Ms Murphy's refusal, the Respondent advised that it would accept a medical clearance from her General Practitioner, Dr Prior which addressed the series of questions set out in the Respondent's Solicitor's letter dated 06.08.2012. 

No response was received from Ms Murphy to this request.

06.09.2012 The Respondent advised Ms Murphy that if she failed to provide reports from Dr Prior, a direction pursuant to the Public Service Act 2008 would likely occur.

No response was received from Ms Murphy to this request.

10.09.2012 Ms Murphy's industrial relations representative sought clarification concerning the request made on 06.09.2012.  This was provided by the Respondent on 10.09.2012.  The Respondent gave Ms Murphy until noon on 11.09.2012 to respond.  If she failed to do this, a direction pursuant to the Public Service Act 2008 would likely issue.

No response was received from Ms Murphy to this request.

20.09.2012 Ms Murphy was directed pursuant to s 175 of the Public Service Act 2008 to attend an independent medical examination with Dr Phillipson, Psychiatrist.

Ms Murphy sought clarification of the direction. 

09.11.2012 Ms Murphy was directed to attend a re-scheduled appointment with Dr Philipson pursuant to s 175 of the Public Service Act 2008. 

Ms Murphy refused to attend. 

11.02.2013 Ms Murphy was requested to provide medical evidence by 25.02.2013 that she was able to return to her substantive position.

Ms Murphy responded on 25.02.2013 but did not provide a clearance as required. 

05.03.2013 A conciliation conference was held in the Queensland Industrial Relations Commission where Ms Murphy produced a handwritten letter from Dr Wagner.  The Respondent advised that the letter was not an acceptable clearance because it contained conflicting advice and was not from a specialist.  There was a discussion about Ms Murphy obtaining specialist medical advice by 25.03.2013, but Ms Murphy disputed in these proceedings that she had agreed to do this.

  1. [22]
    At the end of this process, which was some ten months after the initial request for a medical clearance, Ms Murphy had still not provided a clearance and the Respondent commenced a disciplinary process.
  1. [23]
    It was put to Ms Murphy in correspondence from Dr Bristow (Chief Executive of the Darling Downs Hospital and Health Service) that she respond to the allegation that she had failed to follow a lawful direction given to her on 11 February 2013 to provide medical evidence on 25 February 2013 that she was able to return to her substantive position.
  1. [24]
    Dr Bristow advised Ms Murphy of the possibility of disciplinary action being taken against her.  If it was determined by Dr Bristow, after considering Ms Murphy's response, that this allegation was substantiated, then this would result in the termination of Ms Murphy's employment.  Ms Murphy was given 14 days to respond to both the allegation and the proposed penalty of termination of employment.
  1. [25]
    Ms Murphy responded by correspondence of 10 May 2013.  The Respondent's disciplinary Policy was referred as "a guide" to the separation of show cause notices for liability for discipline and liability for penalty.  Notwithstanding that, Ms Murphy did not dispute the issue and responded in respect of both the allegation and proposed penalty.
  1. [26]
    Consequently, on 26 August 2013, Ms Murphy's employment was terminated.  Ms Murphy was paid five week's pay in lieu of notice in accordance with the applicable Award.

The Applicant's submissions

  1. [27]
    The Applicant in this matter, Ms Lesleigh Murphy commenced her employment with the Respondent in or about 2003 in the position of a Registered Nurse.  On 22 August 2013, Ms Murphy's employment was terminated by the Respondent.
  1. [28]
    The termination letter stated that Ms Murphy had not discharged the requirement placed upon her to show that she was not guilty of a certain action which was set out in the termination letter.  That "action" was that of not obeying a lawful and reasonable direction or a lawful instruction.  The allegations said to sustain these propositions were contained in a letter directed to the Ms Murphy by Dr Bristow.  inter alia, that letter states: 

"To facilitate you returning to your substantive position, I request you provide medical evidence that you are able to return to your substantive position.  If I do not receive medical advice concerning your return to work by 25 February 2013, I will have to consider my options in relation to your employment which may include a direction to attend a medical examination in accordance with the Public Service Act 2008 due to your absence from work."

  1. [29]
    Ms Murphy claimed that she had not been directed to do this, but rather requested to do so by Dr Bristow.  To that end, the Applicant set out the Macquarie Dictionary (Fifth Edition) meaning of the word "direction" as

 "Order:  Command"

  1. [30]
    The word "request" is defined as:-

"the act of asking for something to be given, or done, especially as a favour or courtesy; solicitation or petition or that which is asked for."

  1. [31]
    The Respondent says that the breach of the approved Code of Conduct is the Applicant's failure to follow a lawful instruction.  However, the Applicant says that there is nothing in the letter of 11 February 2013 can be characterised as either a direction or an instruction.
  1. [32]
    It is submitted that the Respondent has no ability to proceed against the Ms Murphy because no relevant breach could be made out.

The Applicant's submissions concerning relevant Legislation and questions of

Law

  1. [33]
    The Applicant states that there is no doubt on a proper construction of the termination letter send by Dr Bristow that he was requesting that Ms Murphy obtain a medical clearance to work rather than directing her to do so.  Previously in correspondence, Dr Bristow had used the word "direction" as used in the Public Service Act 2008.
  1. [34]
    LGSS Pty Ltd v Egan[1] states:

"The dictionary definitions convey the idea that a direction, in a context such as is provided by s 58 is an order or instruction.  This may be contrasted with the idea of consent or agreement to a proposal, which is an act of assent or acquiesence to something external to the person consenting or agreeing."

Section 187 of the Public Service Act 2008

  1. [35]
    Section 187 of the Public Service Act 2008 states:

"187Grounds 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. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  1. (f)
    contravened, without reasonable excuse -
  1. (i)
    a provision of this Act; or
  1. (ii)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; …"

Provisions of the Act applied under the Act, s 23

  1. (1)
    The provisions of the Act stated in schedule 2, part 1 are applied to -
  1. (a)
    for a health service employee employed by a Hospital and Health Service - the Service in which the employee is employed; and
  1. (b)
    or a health service employee employed by the Department of Health -that department.
  1. (2)
    The provisions of the Act stated in schedule 2, part 2

The Applicant submits that "it would appear that these provisions of the PublicService Act 2008 are applicable because of s 5B of the Public Service Regulation2008."

Source of power other than the Public Service Act 2008

  1. [36]
    The Applicant says that it cannot be implied that the Respondent could direct Ms Murphy to provide the necessary medical clearance.  The conditions of employment under s 66 of the Hospital and Health Boards Act 2001 appear to exclude a relevant contract of employment from consideration unless the contract is a fixed term contract.  For Ms Murphy, this wasn't the case.  Section 175 of the Public Service Act 2008 permits a chief executive to require an employee such as Ms Murphy to undergo a medical examination under certain circumstance, but when Ms Murphy's employment status is examined, then the implication of such a term is not warranted.[2]
  1. [37]
    The obligation to afford Ms Murphy natural justice in the course of a disciplinary proceeding is a mandatory requirement during all stages pursuant to s 190 of the Public Service Award 2008.[3]
  1. [38]
    The principles of natural justice which were not applied in relation to Ms Murphy relates to the fact that there was no separate hearing upon the question of guilt of Ms Murphy and the question of penalty.  The Applicant states that "the decision to terminate the Applicant as well as finding that the Applicant was guilty of the relevant breaches of the Public Service Act 2008 occurred at the same time."
  1. [39]
    In Battle v Bundagen Co-Operative Ltd (No 2)[4] at paragraph 66, His Honour stated:

"I agree with Campbell J that there is no rule of law mandating a two stage process in all circumstances.  In cases like Gall and Forge, where there are both a substantial number of different findings on guilt that could be made and also a considerable range of consequential penalties that could be imposed, it is generally the case that natural justice does require first a determination of what findings are made on guilt and second an opportunity to be heard concerning the range of possible penalties.  Otherwise, it is not possible for submissions concerning penalty to be appropriately focused."

  1. [40]
    Also, the Public Service Act 2008 at s 188 provides a range of disciplinary action which may be taken together with a range of different penalties that may be imposed.  The Applicant says that natural justice provides a separate opportunity to address that aspect once the finding is made.
  1. [41]
    The Applicant claimed that Ms Murphy had been misled regarding the decision‑making process.  The correspondence from Dr Bristow (the "show cause" letter) stated:

"If you do not respond within fourteen calendar days of receiving this letter I will make a decision based on the information currently before me". 

  1. [42]
    In cross-examination, Dr Bristow acknowledged he, at that point, was making no decision as to penalty.
  1. [43]
    The relevance of this evidence is that Ms Murphy had previously taken proceedings against the Respondent pursuant the Public Service Act 2008 in July 2013.  There is no need to delve into those proceedings save to say that the President of the Industrial Court at that time had determined that the Appeal was premature because no disciplinary decision had yet been made.  Dr Bristow's decision was made after those proceedings in the Industrial Court.  This was confirmed by Dr Bristow in evidence and the Applicant says that if Dr Bristow was making a decision on whether a breach had occurred (which appears to have happened), then Ms Murphy had a legitimate expectation that such a decision would be made known to her so that she could exercise her appeal rights pursuant to s 194 of the Public Service Act 2008.
  1. [44]
    Section 197 of the Public Service Act 2008 requires that such a decision should have been communicated to Ms Murphy.  Pursuant to that section of the Public Service Act 2008, Ms Murphy would have been provided with 21 days within which to lodge an Appeal.  By the actions taken by Dr Bristow, Ms Murphy was denied any right to have his decision reviewed and thus she was denied natural justice.
  1. [45]
    The evidence of Ms Lyn Rowland was that she was the relevant decision maker on the question of termination.
  1. [46]
    In making this decision, Ms Rowland relied upon material including a briefing note which had not been made available to Ms Murphy for her to comment upon.  It was submitted that this constituted a clear breach of natural justice.
  1. [47]
    It is useful to this particular claim of Ms Murphy to refer inter alia, to some of the statements within that briefing note:

Paragraphs 19 and 23 respectively state:

"The Health Service attempted to engage with Ms Murphy to determine if there were other suitable alternative positions within the Health Service.  A number of options were put to her, however, she did not accept these options, proposing instead positions and allowances the Health Service considered unreasonable."

and

"In March 2013 a conference was held in the Queensland Industrial Relations Commission in relation to an appeal (lodged by Ms Murphy) under the Public Service Act 2008 (in October 2012).  During the conference Ms Murphy advised the Commissioner that she had a medical clearance and intended to provide this to the Health Service by 25 March 2013".

  1. [48]
    The Applicant says that both statements are untrue and is against the evidence before the Commission in this matter.  Ms Rowland took from the material that Ms Murphy had attempted once to return to her substantive position.  The Applicant says that this was incorrect and Ms Murphy was given no opportunity to correct this mistake.

Harsh Unjust and Unreasonable

  1. [49]
    Section 73(1)(a) of the Industrial Relations Act 1999 says that a dismissal is said to be "unfair if it is harsh, unjust or unreasonable".  The Applicant submits that a dismissal may be unjust because the employee was not guilty of the conduct upon which the employer acted and it may be unreasonable because the dismissal is disproportionate to the misconduct.[5]
  1. [50]
    The Applicant submits that Ms Murphy was not guilty of the misconduct alleged against her and termination of her employment was gravely disproportionate to the alleged misconduct levelled against her.
  1. [51]
    The Applicant stated that the correspondence from Dr Bristow on 11 February 2013 referred only to a medical clearance.  It had not referred to a particular type of medical clearance.  It was only in March 2013 at the conference in the Queensland Industrial Relations Commission that it was made known to Ms Murphy what was actually required by the Respondent and that was a medical clearance from a medical specialist.
  1. [52]
    The Applicant said that Ms Murphy had genuinely attempted to provide a medical clearance to the Respondent and this was clear when one referred to the letter from Dr Wagner of 1 March 2013.
  1. [53]
    The Applicant submits that these factors raise the question as to "whether the so called 'direction' had in fact been spent by the time [of] the compulsory conference of 5 March 2013."

Reinstatement or Re-employment

  1. [54]
    Reinstatement or re-employment may be ordered by the Commission pursuant to ss 78 and 79 of the Industrial Relations Act 1999.  If those options are impracticable, then compensation may be awarded.
  1. [55]
    The Applicant says that there would be nothing which would lead the Commission to determine that reinstatement was likely to impose unacceptable problems for the Respondent, nor that it would be unlikely to affect the productivity or harmony of the respondent's workplace.[6]
  1. [56]
    Within this context, the evidence from Ms Brabrook was that she would have no difficulty working with Ms Murphy.  The Applicant says that there had been no evidence adduced by the Respondent to suggest that there would be any difficulty in reinstating Ms Murphy.  The Applicant states that the speculative views expressed by both Dr Bristow and Ms Rowland as to the impracticability of reinstatement do not represent evidence.
  1. [57]
    To support its claim for reinstatement, the Applicant submits that the following observations require consideration:
  1. "The Applicant was not working in her usual position when working at the Dalby Hospital and so observations made about her conduct that there are not particularly germane to what may happen in her future working capacity as a child protection liaison officer working in the Toowoomba Hospital;

and

  1. In any event, employment is not a popularity contest."[7] 
  1. [58]
    Because Ms Murphy has been the subject of an invalid decision as there had been no direction given to her and consequently no breach by her and further/alternatively she was denied natural justice, Ms Murphy is entitled to the observance of established rights and obligations under the law and there is nothing impracticable in insisting on the observance of the same by the Respondent."[8]
  1. [59]
    In the event that the Commission determines that reinstatement or re-employment is impracticable, Ms Murphy seeks the maximum amount of compensation being six months wages in accordance with s 79 of the Industrial Relations Act 1999.

The Respondent's submissions concerning relevant Legislation and questions of

Law

  1. [60]
    The Respondent referred to its obligations under the Work Health and Safety Act 2011 (Qld) ("WHS Act") to ensure as far as possible that the health and safety of its workers while they are at work.  "It also has a non-delegable duty of care to its employees at common law to avoid reasonable foreseeable risk of injury in the workplace." 
  1. [61]
    The Respondent states that the risk of further injury to the Applicant was real:
  1. (a)
    "the Appellant had a history of workplace psychological injuries; [Ms Murphy's claims for psychological injuries arising from workplace incidents in 2008 and 2009]
  2. (b)
    the Applicant's rehabilitation and return to work program between July 2011 and June 2012 was away from the CPU as recommended by Dr Prior and supported by Dr Wagner.  [Dr Wagner's suitable duties program 25 July 2011] [Dr Prior's report 11 May 2011]
  3. (c)
    Dr Prior's opinion was that returning the Applicant to her substantive position in the CPU would be "detrimental to her health"  [Dr Prior's Report 11 May 2011]
  4. (d)
    the Applicant insisted on returning to her substantive position in the CPU."
  1. [62]
    The Respondent submits that when considering those factors, it was not only reasonable but also necessary for the Respondent to require an updated medical opinion before allowing Ms Murphy to return to her substantive position in the CPU.

Source of power to direct an employee to provide medical advice

  1. [63]
    The Respondent submits that at common law it is permitted that an employer can require an employee to attend a medical assessment to determine whether the employee is fit to perform his or her duties and whether he or she can do so safely, provided the direction is on reasonable terms and is reasonably necessary.[9]

The request was on reasonable terms

  1. [64]
    The Respondent submits that all of its requests were reasonable:

"The Respondent:

  1. (a)
    undertook to pay for the required independent medical examination;
  2. (b)
    agreed for the Applicant's solicitors to review and comment on the draft briefing letter to the specialist; and
  3. (c)
    when the Applicant would not consent to an independent medical examination, said it would accept an updated report from Dr Prior which answered a series of questions which the Respondent provided to the Applicant's solicitors." 

Direction under s. 175 of the Public Service Act 2008

  1. [65]
    Section 175 of the Public Service Act 2008 (the Act) permits a chief executive to require an employee to submit to a medical examination under certain circumstances.  The assertion made by the Applicant that this didn't apply to Ms Murphy was incorrect.
  1. [66]
    The Commission has previously held that the ill-health retirement provisions are not a "code" and do not prescribe the sole circumstances in which an employee can be directed to attend a medical assessment.[10]
  1. [67]
    In Schoeman v Director-General Department of Attorney-General and Justice[11] the New South Wales Industrial Relations Commission held the common law is not displaced and a direction to attend a medical assessment at common law may be issued where the statutory requirements for directing a public servant to attend an examination are not activated.  Also in Australian and International Pilots Association v Qantas Airways Ltd[12], Rares J did not accept the statutory framework to ensure that pilots were fit to fly under the Civil Aviation Safety Regulations 1998 supplanted the employer's entitlement to require a sick or injured employee to provide it with information in relation to the employee's medical condition. 
  1. [68]
    The Respondent submitted that Part 7 of Chapter 5 of the Public Service Act 2008 "reveals no basis upon which it could be inferred as a matter of construction that it was intended to be a code in respect of medical examination of employees.  This is evident from, inter alia, its limited scope of application and its apparent focus on providing a power to take 'action' under s 178."
  1. [69]
    In summary on this point, the Respondent says that Part 7 of Chapter 5 of the Public Service Act 2008 does not have the effect of displacing the power of the Respondent as an employer to request the Applicant to attend a medical examination.

Grounds for Discipline

  1. [70]
    R v Darling Island Stevedoring and Lighterage Co Ltd[13] establishes that the duty of an employee to obey a direction of the employer is fundamental to the employment relationship provided such a direction is lawful and reasonable. 
  1. [71]
    The Act at s 187 permits the chief executive to discipline an employee if the chief executive is reasonably satisfied that the employee has:
  1. (a)
    contravened, without reasonable cause, a direction given to the public service employee by a responsible person (s 187 (1)(d); or
  2. (b)
    contravened, without reasonable excuse, a standard of conduct applying to the employee under a code of conduct approved under the Public Service Ethics Act 1994 (s 187(1)(f)(ii).
  1. [72]
    In the circumstances of this matter, the Respondent submits that Ms Murphy contravened a direction and acted in breach of the relevant code of conduct by her refusal to provide, pursuant to Dr Bristow's request, a clearance to return to her substantive role. 

Request vs Direct

  1. [73]
    The Applicant has sought to distinguish the meaning of both of these words within the context of the Applicant's claim that Dr Bristow only requested Ms Murphy to obtain a medical clearance before her return to work, rather than directing her to do so.
  1. [74]
    The Respondent states that "an instruction couched in polite terms may still be a lawful and reasonable direction with which the employee must comply if the employee understands the imperative character of the request and the potential consequences of non-compliance."[14]
  1. [75]
    By 11 February 2013, the Respondent claims it was not seeking Ms Murphy's consent or agreement to a proposal.  To clarify this point, the Respondent referred to the language used in the initial request to Ms Murphy (dated 28 June 2012) when it sought her consent to attend an examination with a psychiatrist of her choice from a panel of three specialists.  That letter stated, inter alia, that:

"… Currently you have been absent from work since the week of 19 June 2012.  This is due to you not having a medical clearance to return to your substantive position.

As you are aware, the most recent medical advice states that it would be detrimental to your health to return to your substantive position.  The service has several times written to you drawing attention to the view of Dr Prior and requested you to provide evidence to the contrary.  You have declined to provide any further medical advice on this matter which states you are able to return to your position.

As an employee, I have an obligation to ensure the health and safety of employees and without medical evidence which states you can return to your substantive position, returning you presents an unacceptable risk to both you and the organisation."

  1. [76]
    The Respondent says that this sheds a different light upon Ms Murphy's reliance upon the word "request" to the extent that, when the letter of 11 February 2013 is read as a whole, it is clear that the provision of medical evidence was not optional.  The employer would not let Ms Murphy return to work without a medical clearance.  There can be no confusion on Ms Murphy's part as to the intent of that correspondence.  In cross-examination as to her knowledge of what was required by Dr Bristow, Ms Murphy stated ….."but he's asking me the – by request to provide him with medical information".[15] 
  1. [77]
    The Respondent stated that Ms Murphy was not entitled to elect not to comply with Dr Bristow's request.
  1. [78]
    There have been similar issues considered by the Commission in the matters of R Forrest and Harvey Bay Golf and Country Club Inc [16] and Quaneta Greenwood and Queensland Health[17] where the Commission has considered the manner in which a lawful direction may be imparted to an employee.

Natural Justice

  1. [79]
    There had been no denial of natural justice to Ms Murphy by the Respondent.  The dismissal process was in accordance with the Respondent's statutory obligations under the Public Service Act 2008 and the Act.

Single Show Cause letter appropriate

  1. [80]
    Because Ms Murphy was only issued with one show cause letter, does not invalidate that process and deny her natural justice considerations.  Ms Murphy was variously represented by the Queensland Nurses Union and a number of private law firms, and she was adequately represented.
  1. [81]
    The show cause letter of 26 April 2013 advised Ms Murphy:

"a) what the allegation against her was;

b) what the proposed penalty would be if it was determined after considering her response that the allegation was substantiated; and

c) that she had 14 days from the receipt of the letter to respond in writing to:

 i)whether she admitted or denied the allegation;

 ii)why the proposed penalty of termination of employment should not be imposed;

 iii)if she disagreed with the proposed penalty, suggest an alternative disciplinary action and the reasons why that action is more appropriate; and

 iv)any other information she considered relevant." 

  1. [82]
    Ms Murphy's written response was delivered to the Respondent on 10 May 2013.  Ms Murphy did not address the issue of penalty.
  1. [83]
    The Respondent submitted that it had only one allegation to consider with regard to Ms Murphy.  The circumstances leading up to it had been "extensively canvassed in correspondence between the parties".  Ms Murphy had always held a view regarding the supply of a medical clearance for work and those views had been well ventilated between Ms Murphy and the Respondent.
  1. [84]
    The Respondent rejected the Applicant's submissions concerning what it described as a "separate hearing on guilt".
  1. [85]
    Costello v State of Queensland (Department of National Parks, Recreation, Sport and Racing)[18] was authority for the proposition that, in the particular circumstances of the case, it was not inappropriate for an employee to be required to respond to both liability for discipline and the proposed penalty within the one action.  The Respondent held the view that Ms Murphy could be in no doubt as to the process being adopted (with such a lengthy history around the issue with the Respondent) and she had been given an adequate opportunity to respond.
  1. [86]
    What is required, as submitted by the Respondent, is that the principles of natural justice must be considered within the context of the matter at hand.  In the course of doing that, there should be no question of unfairness.  The Respondent said that Ms Murphy fully understood the process to be followed, she was aware of the potential outcome and the proposed penalty.

Lack of PSC jurisdiction not breach of natural justice

  1. [87]
    With regard to the concerns expressed by the Applicant as to her rights under the s 194 of the Public Service Act 2008 to appeal a disciplinary decision, the Respondent says that "This submission is inconsistent with her own evidence at the hearing that she deliberately did not provide a response on the matter of penalty because she assumed when Dr Bristow read her response with the full context and history, he would not pursue disciplinary action against her."
  1. [88]
    Ms Murphy had agreed during evidence that the letter of 26 April 2013 had been clear to her.  Because of the clarity of that letter, the Respondent submits that Ms Murphy cannot now complain that she did not receive a separate decision on guilt.  In the Respondent's submission, no unfairness was caused to Ms Murphy.
  1. [89]
    The Respondent further stated that:

"The Applicant responded to the 26 April 2013 show cause letter on 10 May 2013.  She lodged her ultimately unsuccessful Public Service Appeal on 20 May 2014.  The fact that the stages were combined was not raised by the Applicant in the Public Service Appeal in circumstances where she already had the show cause letter, and nor did she raise the issue subsequently prior to the decision being made by Ms Rowland."  [Respondent's submissions - paragraph 76]

Material considered by Lyn Rowland

  1. [90]
    With regard to the Applicant's claim as to the inaccuracy of the briefing note relied upon by Ms Rowland, the Respondent submits that natural justice does not require every document involved in a disciplinary process to be put to an employee for response.[19]  In this case, the Respondent said that the internal briefing note to Ms Rowland provided an internal summary and nothing more with the key material for Ms Rowland's consideration.
  1. [91]
    Added to that, the Respondent stated that if the briefing note had contained errors, (which is not conceded), those matters taken in conjunction with the other material before her were not determinative of the allegation.
  1. [92]
    Further, the Applicant's views on the issue of alternative placement were well documented in her correspondence of 10 May 2013 (show cause correspondence) and also addressed in her correspondence to Dr Bristow of 24 September, 2012, 20 November 2012 and 25 February 2013.
  1. [93]
    It was viewed as inconsequential by the Respondent that there had been a "minor" error in Ms Rowland's affidavit concerning Ms Murphy's return to work in 2010.  It is submitted that, in its overall consideration of all issues relating to Ms Murphy, this matter was not determinative of the outcome reached by the Respondent.
  1. [94]
    Significantly, it was not put to Ms Rowland during the course of her evidence that she had relied upon the briefing note to the exclusion of the annexed documents.

Remedy

  1. [95]
    Primarily, the Respondent claims that the application must be dismissed by the Commission.
  1. [96]
    The matter of reinstatement has been dealt with by Wilcox CJ in Nicolson v Heaven and Earth Gallery Pty Ltd (1994) 57 IR 50: 

"The word 'impracticable' requires and permits the Court to take into account all of the circumstance of the case, relating to both the employer and the employee, and to evaluate the practicability of a reinstatement order in a common sense way.  If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable' to order reinstatement; notwithstanding that the job remains available".

  1. [97]
    In Liddle v Lembke [20]Wilcox CJ and Keely J said:

"… although 'impracticable' does not mean 'impossible' it means more than 'inconvenient' or 'difficult'."

Medical Evidence

  1. [98]
    The Respondent states that the only current medical evidence has been obtained from Dr Prior which states clearly that Ms Murphy's return to her substantive role would be 'detrimental".  This view is supported by Dr Wagner's evidence in the hearing where he deferred to Dr Prior's opinion as he is an expert Psychiatric Specialist.
  1. [99]
    The issue of obtaining further medical evidence was raised by the Respondent to the Applicant on six separate occasions between June 2012 and March 2013.  The Respondent believes that Ms Murphy clearly understood why that advice was being sought.
  1. [100]
    All Ms Murphy had to do was acquiesce to that request but she continually refused to do so.  Significantly, the Respondent said this approach adopted by Ms Murphy throughout the whole process contributed towards destroying any trust and confidence in her by the Respondent.  Dr Bristow said that he would have no confidence that Ms Murphy would act reasonably and comply with reasonable requests in the future.
  1. [101]
    Similarly, evidence given by Ms Bourke and Ms Rassmussen, colleagues of Ms Murphy, was to the extent that she exhibited inherent misplaced mistrust of those she worked with.
  1. [102]
    After considering all of the evidence in this matter, I have firmly come to the conclusion that this application must be dismissed.
  1. [103]
    The Respondent's evidence is strong and compelling in that it has conducted its processes in relation to its disciplinary action concerning Ms Murphy in a fair and reasonable manner.  If anything, the Respondent has gone to considerable lengths to facilitate Ms Murphy's concerns over a number of years.
  1. [104]
    Ultimately, it was Ms Murphy's unwillingness to co-operate with the Respondent which was the primary cause of her dismissal.  She was given numerous opportunities to obtain a medical clearance and simply refused to do so.
  1. [105]
     The Respondent's submissions highlight the need for the Respondent to ensure the safety of its workforce (WHS).  The statutory obligations in this regard are significant.  Also one needs to consider the type of work performed by Ms Murphy within a Hospital environment.

Conclusions and Findings

  1. [106]
    In summary, I have found that:
  • The history of Ms Murphy's persistent refusal to provide a medical clearance is set out in detail by the Respondent.
  • The period of time in question is lengthy - from 21.06.2012 to 05.03.2013.
  • The case law cited in this decision by the Respondent confirms that the application of the word "request" can, and in this case did constitute a formal request requiring action on Ms Murphy's part.  This is particularly so in light of the detailed communications which had occurred between the Respondent and Ms Murphy.  There had been no ambiguity on the Respondent's part with regard to its requirement for Ms Murphy's compliance in obtaining a medical clearance.
  • Ms Murphy had been represented at various stages by the Queensland Nurses Union and Solicitors.
  • The medical evidence was to the effect that Ms Murphy was not cleared to return to her substantive role.
  • The submissions made concerning Ms Murphy's rights pursuant to s. 194 of the Public Service Act 2008 have been addressed by the Respondent and when taken into consideration with Ms Murphy's own evidence and actions, cannot be viewed as being unfair or inappropriate in the circumstances. 
  • There has been no denial of natural justice to Ms Murphy.  In fact, the evidence shows that she had been afforded every opportunity to respond to the allegations against her.  As well, the fact that the allegation and penalty were contained within the one document does not of itself render the action procedurally unfair.  Ms Murphy had lengthy communication with the Respondent, while represented, and there is no doubt at all that she was well aware of what was occurring and what views the Respondent held with regard to her lack of co-operation with it on such a fundamental issue as her fitness to continue in her substantive role.  The case law cited by the Respondent appropriately addresses that point.
  1. [107]
    Given that I have determined that the Application is dismissed, there is no requirement to consider any of the other options raised by the Applicant.
  1. [108]
    Pursuant to s. 73 (1)(a) of the Industrial Relations Act, Ms Murphy's dismissal was not "harsh, unjust or unreasonable".  The dismissal was therefore not "unfair" within the meaning of section 73.
  1. [109]
    The application is dismissed.

Footnotes

[1] [2002] NSWSC 1171.

[2] Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242 [37].

[3] Re Kenner; Ex Parte Minister for Education [2003] WASCA 37.

[4] [2011] NSWCA 38.

[5] Barsha v Motor Financial Wizard Sales Pty Ltd (2002) 171 QGIG 139.

[6] Abbott - Etherington v Houghton Motors Limited (1995) 63 IR at 397.

[7] Stewart v Creek Gold (2003) 174 QGIG 105.

[8] Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767.

[9] Thompson v IGT (Australia) Pty Ltd [2008] FCA 994.  173 IR 395 [48] to [52].

[10] Lee Dawn Raw and State of Queensland (Queensland Health) (TD/2011/43).

[11] [2013] NSWRIR Comm 1018.

[12] [2014] FCA 32.

[13] [1938] 60 CLR 601.

[14] Lisa Slavin v Horizon Holdings Pty Ltd (U2011/12564); (2012) FWA 5588.

[15] Transcript of proceedings, Murphy v Darling Downs Hospital and Health Service (Queensland Industrial Relations Commission, TD/2013/78, 7 April 2014) 51 (L. E. Murphy).

[16] QIRC (No B1246 of 1995).

[17] (TD/2009/187).

[18] [2014] QIRC 064.

[19] McVeigh v Willarra Pty Ltd [1984] FCA 379

[20] (1994) 56 IR 447 at 465.

Close

Editorial Notes

  • Published Case Name:

    Murphy v Darling Downs Hospital and Health Service

  • Shortened Case Name:

    Murphy v Darling Downs Hospital and Health Service

  • MNC:

    [2015] QIRC 145

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    05 Aug 2015

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
Australian and International Pilots Association v QANTAS Airways Limited [2014] FCA 32
2 citations
Jump To
Cite 1 - [2014] FCA 32
Cite 2 - [2014] FCA 32
Barsha v Motor Finance Wizard (Sales) Pty Ltd (2002) 171 QGIG 139
2 citations
Jump To
Cite 1 - (2002) 171 QGIG 139
Cite 2 - (2002) 171 QGIG 139
Battle v Bundagen Co-operative Ltd (No 2) [2011] NSWCA 38
2 citations
Jump To
Cite 1 - [2011] NSWCA 38
Cite 2 - [2011] NSWCA 38
Costello v State of Queensland (Department of National Parks, Recreation, Sport and Racing) [2014] QIRC 64
2 citations
Jump To
Cite 1 - [2014] QIRC 64
Cite 2 - [2014] QIRC 64
Edwards v North Goonyella Coal Mines Pty Ltd [2005] QSC 242
2 citations
Jump To
Cite 1 - [2005] QSC 242
Cite 2 - [2005] QSC 242
LGSS Pty Ltd v Egan [2002] NSWSC 1171
2 citations
Jump To
Cite 1 - [2002] NSWSC 1171
Cite 2 - [2002] NSWSC 1171
Liddle v Lembke (1994) 56 IR 447
2 citations
Jump To
Cite 1 - (1994) 56 IR 447
Cite 2 - (1994) 56 IR 447
Lisa Slavin v Horizon Holdings Pty Ltd (U2011/12564) (2012) FWA 5588
2 citations
Jump To
Cite 1 - (2012) FWA 5588
Cite 2 - (2012) FWA 5588
McVeigh v Willarra Pty Ltd [1984] FCA 379
2 citations
Jump To
Cite 1 - [1984] FCA 379
Cite 2 - [1984] FCA 379
Nicolson v Heaven and Earth Gallery (1994) 57 IR 50
2 citations
Jump To
Cite 1 - (1994) 57 IR 50
Cite 2 - (1994) 57 IR 50
Queensland Teachers Union of Employees v Department of Education (2000) 165 QGIG 767
2 citations
Jump To
Cite 1 - (2000) 165 QGIG 767
Cite 2 - (2000) 165 QGIG 767
R v Darling Island Steverdoring and Lighterage Co Ltd ex parte Halliday and Sullivan (1938) 60 CLR 601
2 citations
Jump To
Cite 1 - (1938) 60 CLR 601
Cite 2 - (1938) 60 CLR 601
Re Kenner; Ex Parte Minister for Education [2003] WASCA 37
2 citations
Jump To
Cite 1 - [2003] WASCA 37
Cite 2 - [2003] WASCA 37
Schoeman v Director-General Department of Attorney-General and Justice [2013] NSWRIR Comm 1018
2 citations
Jump To
Cite 1 - [2013] NSWRIR Comm 1018
Cite 2 - [2013] NSWRIR Comm 1018
Stewart v Creek Gold (2003) 174 QGIG 105
2 citations
Jump To
Cite 1 - (2003) 174 QGIG 105
Cite 2 - (2003) 174 QGIG 105
Thompson v IGT (Australia) Pty Ltd (2008) [2008] FCA 994
2 citations
Jump To
Cite 1 - [2008] FCA 994
Cite 2 - [2008] FCA 994

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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