Queensland Judgments
Authorised Reports & Unreported Judgments
  • sclq logo
  1. Caselaw
  2. QIRC
  3. 2015
  4. State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura - [2015] QIRC 30

Authorised Reports & Unreported Judgments
Exit Distraction Free Reading Mode
  • Unreported Judgment

State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura[2015] QIRC 30

State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura[2015] QIRC 30

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura [2015] QIRC 030

PARTIES:

State of Queensland (Metro South Hospital and Health Service)

(Applicant)

v

Misiura, Andrew

(Respondent)

CASE NO:

B/2014/73

PROCEEDING:

Application to Dismiss Proceeding

DELIVERED ON:

19 February 2015

HEARING DATE:

22 January 2015

MEMBER:

Industrial Commissioner Fisher

 
  1. The industrial dispute D/2013/83 is dismissed.
  2. The Application for Directions is dismissed.
  3. No order as to costs.
 

INDUSTRIAL LAW - APPLICATION TO DISMISS PROCEEDING - notice of industrial dispute - application for directions - order sought to strike out or dismiss the two actions on grounds that further proceedings are not necessary or desirable in the public interest - incident of racial abuse - harassment and victimisation - investigations into alleged misconduct - remuneration - discovery - conciliation conference - whether industrial dispute resolved - appropriate to dispose of industrial dispute - dismissed industrial dispute and application for directions.

CASES:

Industrial Relations Act 1999, s 120, s 229, s 230(3)(b), s 230 (4), s 274(2)(b), s 326, s 331(b), s 335(1)(a), Schedule 5

Public Service Act 2008, s 200(3)(a)

Public Interest Disclosure Act 2010

Industrial Relations (Tribunals) Rules 2011, Rule 8

Queensland Health Nurses and Midwives Award - State 2012

Department of Corrective Services v The Queensland Public Sector Union of Employees (2006) 182 QGIG 152

APPEARANCES:

Mr J. Merrell, Counsel instructed by Crown Law for the Applicant.

Mr P. Bridgman, Counsel instructed by Susan Moriarty Lawyers for the Respondent.

Decision

  1. [1]
    The State of Queensland (Metro South Hospital and Health Service) has made an application seeking that the Queensland Industrial Relations Commission strike out or dismiss in their entirety:
  • the Notice of Industrial Dispute Matter No D/2013/83 lodged by Andrew Misiura in the Commission on 16 May 2013 under s 229 of the Industrial Relations Act 1999; and
  • the Application for Directions in relation to Industrial Dispute Matter No D/2013/83 filed by Dr Misiura in the Commission on 18 July 2014 under s 326 of the Act.
  1. [2]
    MSHHS relies on the power found at s 274(2) of the Act for orders by the Commission to strike out or dismiss these two actions.  Alternatively, an order pursuant to s 331(b) of the Act is sought for the Commission to strike out or dismiss the two actions on the grounds that further proceedings by the Commission are not necessary or desirable in the public interest.
  1. [3]
    Dr Misiura contends that his dispute is not resolved and seeks that it be progressed in the Commission.  In particular, Dr Misiura contends that the following are some of the matters that remain unresolved:
  • the incident of racial abuse;
  • harassment and victimisation;
  • the investigations into the alleged misconduct;
  • remuneration received by him during the dispute; and
  • discovery.

Chronology

  1. [4]
    Dr Misiura has been employed as a Registered Nurse at the Princess Alexandra Hospital, since 2004.  He holds a doctorate in Chemistry.  Until 2013, Dr Misiura had an unblemished work record.
  1. [5]
    Dr Misiura submitted a written report on 31 July 2012 about an incident of racial discrimination he witnessed involving two other nurses.
  1. [6]
    On 20 February 2013, Associate Professor Crompton, Executive Director Mental Health MSHHS, wrote to Dr Misiura advising him that he was in receipt of serious allegations about his behaviour in the workplace.  Those allegations were to be referred to the Crime and Misconduct Commission to determine whether they amounted to suspected official misconduct.  Dr Misiura was also advised that he was to work day shift hours until further notice although he would continue to be paid in accordance with his projected roster.
  1. [7]
    On 27 March 2013, Associate Professor Crompton again wrote to Dr Misiura advising that he was in receipt of serious concerns regarding his administration of medication.  These concerns were also referred to the CMC to determine whether they amounted to suspected official misconduct. As a result, Dr Misiura was directed to cease administering medication until further notice.
  1. [8]
    Susan Moriarty and Associates, acting for Dr Misiura, lodged a Notice of Industrial Dispute (D/2013/83) on 16 May 2013.  It set out various events that had occurred in the workplace commencing with Dr Misiura's report of racial abuse.  Dr Misiura contended that following the lodging of this report he had been subject to reprisal action including two complaints of suspected official misconduct; a complaint to the Australian Health Practitioners Registration Agency (AHPRA); and ostracism and hostility from his co‑workers.  The Notice set out two outcomes sought from a conciliation conference:  a transfer from his current nursing location to another location and for MSHHS to comply with its Discipline Policy to undertake a preliminary assessment of the allegations to justify their proposed characterisation as "official misconduct".
  1. [9]
    The first conciliation conference was held before Deputy President Swan on 20 May 2013.  At that conference Dr Misiura was represented by Susan Moriarty, Principal, Susan Moriarty and Associates.  Ms Moriarty advised that Dr Misiura had been transferred to East Wing prior to the conference.  It appears Dr Misiura was transferred because he was concerned he was being harassed and victimised as a result of lodging his report of racial abuse.  Ms Moriarty sought a recommendation from the Commission that MSHHS discontinue the investigations into the allegations of suspected official misconduct against Dr Misiura.
  1. [10]
    The representative of MSHHS at the conference, Geoff Bassett, Director Industrial Relations, informed the Commission that the CMC had referred the first allegation of suspected official misconduct (the conduct allegation) back to MSHHS for investigation and the second allegation (the medication allegation) was also likely to be so referred.  In those circumstances MSHHS had no capacity to discontinue the investigations.  Further, Dr Misiura would be interviewed as part of the investigation into the first allegation.  MSHHS would determine what action needed to be taken in the event the second allegation was referred back by the CMC.  Dr Misiura's right to administer medications would be restored were the allegation be found to be baseless.
  1. [11]
    The Commission recommended that no adverse action be taken against Dr Misiura during the investigation process because he was unable to perform all of his usual duties as a registered nurse.
  1. [12]
    A second conciliation conference was resumed before Deputy President Swan on 21 June 2013 at the request of Dr Misiura.  At that conference Dr Misiura was represented by Paul Murray, Solicitor of Susan Moriarty and Associates.  Mr Bassett again represented MSHHS.  The conference appears to have been requested for the following reasons.  Firstly, a new allegation had been added to the medication complaint and secondly, Dr Misiura was still being bullied and harassed by a staff member despite his transfer to the East Wing.  In addition, it appeared that Dr Misiura may be returned to his previous work location.
  1. [13]
    Deputy President Swan recommended that Dr Misiura stay in the East Wing until the resolution of the investigations.  In addition, she set out a series of steps to be taken by the parties including meetings between the parties and discovery of documents.  Deputy President Swan also advised that either party could seek the relisting of the conference.
  1. [14]
    In compliance with the outcomes of the conciliation conference a meeting between the parties occurred on 2 July 2013.  They discussed the issue of discovery of documents relating to the two allegations of suspected official misconduct.  Mr Murray provided to MSHHS a list of documents that were in the possession of Dr Misiura and on which he intended to rely.  MSHHS did not respond in kind because, according to Mr Bassett, "prior to the meeting MSHHS did not know with certainty the scope of the matters in issue … which would form the basis of any list of documents prepared."  MSHHS did not request documents from Mr Murray as it had all of the relevant documents provided on his list.
  1. [15]
    On 4 July 2013, MSHHS sent an email to Susan Moriarty and Associates disclosing various documents.  Mr Murray said that email was not received.  On 5 July 2013 MSHHS further corresponded with Susan Moriarty and Associates advising that it was reviewing the categories of documents sought by Dr Misiura to ensure that it did not breach its various statutory obligations.  It anticipated having its list of documents available by 9 July 2013.
  1. [16]
    Dr Misiura was due to be interviewed by the investigator appointed by MSHHS in relation to the conduct allegation on 25 July 2013.  On 10 July 2013, Mr Bassett advised Susan Moriarty and Associates that during the interview Dr Misiura could access a range of documents.  These were documents upon which the investigator intended to rely at the interview.  However, those documents could not be copied or retained by Dr Misiura and certain other documents would not be provided.  The reasons for this approach were set out in the correspondence and concerned certain statutory obligations of MSHHS.
  1. [17]
    As it transpired Dr Misiura declined to attend the interview with the investigator on legal advice.
  1. [18]
    On 31 July 2013, AHPRA wrote to Dr Misiura advising that it had decided not to take any further action in relation to the notification as it had "a reasonable belief that the notification is vexatious and frivolous."  The grounds of that decision included that "[w]hilst the administration of an S4 drug by a registered nurse may be against the organisation's policy it is not in breach of the duties and responsibilities of a registered nurse" and "[t]he matter is a minor breach of organisational policy and even if proved would not warrant action by the Board."
  1. [19]
    Despite the finding by AHPRA, the medication allegation was still investigated by MSHHS.
  1. [20]
    On 9 September 2013, Dr Richard Ashby, Chief Executive, MSHHS, informed Dr Misiura that in relation to the medication allegation he had determined that:

"… you have breached the Metro South Health procedure regarding controlled Drugs - Schedule 8 and the procedure on Listed Schedule 3 and Listed Schedule 4 Medication Management."

  1. [21]
    Dr Ashby decided not to take any action against Dr Misiura in relation to this matter and considered it closed.  Dr Misiura was also advised that "should an allegation about a similar issue be brought to my attention in future, you may be liable for disciplinary action".  Dr Ashby further decided that all staff of the Metro South Health Mental Health Services at the Princess Alexandra Hospital, including Dr Misiura, would be provided with education and training in relation to medication policies.
  1. [22]
    Dr Misiura was advised on 31 October 2013 by Dr Ashby that the various allegations in relation to his conduct could not be substantiated and as a result, no action would be taken against him.  However, Dr Ashby noted that Dr Misiura had refused a lawful direction to be interviewed on the grounds of legal advice received.  Dr Ashby accepted that Dr Misiura acted in good faith by not attending, however, the legal advice on which he had received was not accepted.  Dr Ashby then said:

"That being said, I put you on notice that any future instances of failing to follow a reasonable or lawful direction may result in disciplinary action for misconduct."

  1. [23]
    On 4 October 2013, Dr Misiura filed an appeal under the Public Service Act 2008.  In his decision, Commissioner Thompson, acting as an Appeals Officer under that Act, said that the appeal grounds were identified as "a grievance under Part Three of the Queensland Health Nurses and Midwives Award - State 2012."  The grievance concerned the failure of MSHHS to comply with directions issued by the QIRC.  In making his decision as the Appeals Officer, Commissioner Thompson considered the grounds of appeal and the Notice of Industrial Dispute that had been lodged on 16 May 2013 and concluded that the appeal and the dispute notice "seemingly related to the same grievance with reliance upon the same factual material."  Accordingly, he declined to hear the appeal in accordance with s 200(3)(a) of the PS Act on the basis that the appellant had made an application to the Commission relating to the decision, whether or not the application has been fully decided.
  1. [24]
    In response to correspondence received from Susan Moriarty and Associates, on 14 November 2013, Dr Ashby advised, amongst other matters, that:
  • Dr Misiura would resume normal rotating rosters effective 16 December 2013;
  • Dr Misiura would recommence dispensing medication on successful completion of the medication policies education; and
  • discussions were to be held with Dr Misiura about his longer term placement as the complaints against him had been finalised.
  1. [25]
    On 3 February 2014, Dr Ashby again corresponded with Susan Moriarty and Associates advising that Dr Misiura would remain permanently in the East Wing and be required to rotate through the roster.  Further, Dr Ashby stated:

"It is noted that the QIRC declined to hear the Appeal lodged in relation to the Grievance submitted by Dr Misiura as the same matters were the subject of Dispute D/2013/83.  It is acknowledged that Dr Misiura may wish to reactivate this dispute.

However, all of the issues relating to the allegations against Dr Misiura have been closed as confirmed by the CMC and Dr Misiura has been transferred to the East Wing.  Therefore, Metro South Health will not be taking further action regarding these matters."

  1. [26]
    Susan Moriarty and Associates made a Right to Information request on behalf of Dr Misiura on 18 June 2013.  Documents were still being released up to 4 April 2014.  Correspondence with the Office of the Information Commissioner continued until 9 May 2014.
  1. [27]
    On 18 July 2014, Dr Misiura lodged an Application for Directions in the Registry of the Commission.  Dr Misiura sought directions for the future conduct of the dispute (D/2013/83) and various Orders from the Commission as follows:

"(1) that the employer give discovery of documents to Dr Misiura in the terms directed by Deputy President Swan on 21 June 2013, no later than 4pm 1 August 2014;

  1. (2)
    a declaration under the Industrial Relations Act 1999 that the reports of purported investigations into Dr Misiura are void and of no effect;
  1. (3)
    an order that the employer correct Dr Misiura's personnel records:
  1. (a)
    to note that the investigations are void and of no effect;
  2. (b)
    to note that no complaint was made against Dr Misiura that he had breached the S8 medication protocol or policy;
  3. (c)
    to note that the complaint as to medications was frivolous and vexatious;
  1. (4)
    that a penalty in the sum of 135 penalty units (being $14,850) be paid to Dr Misiura by the employer pursuant to s. 120 of the Industrial Relations Act 1999;
  1. (5)
    that the employer take all reasonable measures to prevent Dr Misiura being subjected to further:  vexations complaints;  retaliatory behaviour contrary to the Public Interest Disclosure Act 2010 (PID Act) (that is, reprisal); or prohibited conduct contrary to the Industrial Relations Act 1992;
  1. (6)
    that the Director-General, Queensland Health appoint an independent investigator, agreed to by Dr Misiura, to investigate and report to the Director-General and Dr Misiura no later than 1 September 2014, on: the treatment of Dr Misiura's initial complaint by Metro South Health; the subsequent managerial treatment of Dr Misiura by Metro South Health; and the treatment by Metro South Health of the vexations and retaliatory complaints against Dr Misiura made after his initial report.

Further I apply for directions as to the conduct of this application in relation to the following matter:

 (1) arbitration pursuant to s 230(3)(b) of the Industrial Relations Act 1999 at a date to be set by the Commission."

  1. [28]
    The application was allocated to Deputy President Swan who convened a conference of the parties on 31 October 2014.

Position of the Parties

  1. [29]
    MSHHS contends that the matters raised in the Notice of Industrial Dispute have been resolved and there is no current dispute before the Commission.  As a result, there is no unresolved dispute to arbitrate.  In addition, MSHHS contends that the Application for Directions is in truth an application for substantive relief as it seeks orders, declarations, a civil penalty and other relief.  These outcomes are not ones that can be determined by the Commission in its arbitration jurisdiction.  MSHHS thus concludes that "this is a clear case where the combined effect of the notice of industrial dispute and the application for directions cannot succeed on any view of the facts or the law" and seeks that its application be granted.
  1. [30]
    Dr Misiura contends that it is not for MSHHS to determine that the dispute has been resolved; it is a question of fact to be determined by the Commission and MSHHS bears the onus of establishing there is no dispute.  In his submission, the matters in dispute have evolved and changed over the course of the dispute.  These matters, and any outstanding issues from the Notice of Industrial Dispute, should be conciliated or arbitrated in the public interest.  On that basis, the application by MSHHS should be dismissed.
  1. [31]
    Dr Misiura also submits that the Application for Directions primarily seeks directions regarding the conduct of the dispute and the discovery of documents.  He concedes the Application for Directions would be disposed of in the event the Application to Dismiss the Notice of Industrial Dispute were to succeed.

Consideration and Findings

  1. [32]
    Clearly, the parties are at odds as to whether the industrial dispute has been resolved.  In order to determine the application before the Commission, a view must be reached about that matter.  Therefore, the Commission proposes to examine each of the issues raised by Dr Misiura as remaining unresolved from his dispute. 

Has the industrial dispute been resolved?

  1. [33]
    The Notice of Industrial Dispute lodged on 16 May 2013 is lengthy, running to some six pages.  It identified the following series of events:
  1. (i)
    Dr Misiura was a witness to an incident raising allegations of race discrimination;
  2. (ii)
    Dr Misiura experiences a series of adverse interactions with colleagues arising out of his provision of a witness statement during the course of a grievance investigation;
  3. (iii)
    Dr Misiura is twice charged with "suspected official misconduct" (the conduct and medication allegations); and
  4. (iv)
    Dr Misiura is referred to AHPRA.
  1. [34]
    The Notice then listed "adverse actions" taken against Dr Misiura and stated that these actions were in the nature of reprisal actions or victimisation of him.
  1. [35]
    Two outcomes were identified in the Notice of Industrial Dispute.  It is clear that the first outcome sought by Dr Misiura of a transfer was achieved prior to the first conciliation conference.  The second outcome sought was the characterisation of the allegations.  In light of the advice provided by MSHHS, the discontinuance of the investigation into the allegations was sought instead.  However, this outcome was unachievable because of the CMC required processes effective at that time.
  1. [36]
    Ordinarily, the dispute should have ceased at that point as the matters about which the Commission's assistance had been sought were dealt with.  However, Dr Misiura has identified five particular matters arising out of the dispute that he contends remain unresolved.  These are now considered in no particular order below.

Discovery

  1. [37]
    Dr Misiura contends that MSHHS failed to discover documents in accordance with the directions given by Deputy President Swan at the second conference held on 21 June 2013 and such discovery should now occur despite the investigations having concluded.  The purpose of seeking discovery is because Dr Misiura is ignorant as to matters affecting his career and reputation.  Further, MSHHS should be held to account for its undertakings to the Commission.
  1. [38]
    MSHHS contends that Deputy President Swan did not issue directions for discovery.  The oral submissions made on behalf of Dr Misiura tend to support that view as it was said, "that process of discovery that was undertaken by way of agreement before this Commission."  In the circumstances it may be useful to clarify what occurred at the conference.
  1. [39]
    The transcript of the second conciliation conference shows that while Deputy President Swan spoke about directions and discussed time frames with respect to the exchange of documents, no formal directions were issued.  As Deputy President Swan made clear, the time frames were not issued as orders as the proceedings before her were by way of a conciliation conference.  The Commission set out a process to be followed and the parties agreed to that.
  1. [40]
    Was that process as it related to discovery followed?  Mr Bassett referred to correspondence sent to Susan Moriarty and Associates on 4 July 2013, however, Mr Murray, in his Affidavit said that that letter was not received.  When the list of documents had not been discovered as promised, he sent an email to Mr Bassett seeking their whereabouts.  No response was received to that email.  To support his evidence, tendered through Mr Bassett, was a document retrieved from the now superseded email system showing that he emailed documents to Susan Moriarty and Associates on 4 July 2013.  However, I note that the document shows that while some correspondence was delivered to a Queensland Health address, the correspondence to Susan Moriarty and Associates was "transferred".  In the absence of a better, technical explanation of the email delivery system and the difference, if any, between "delivered" and "transferred" as well as Mr Murray's evidence that the documents were not received by his firm, the Commission cannot be satisfied that Mr Bassett's correspondence was received by Susan Moriarty and Associates.
  1. [41]
    Dr Misiura seeks that MSHHS be held to account for its undertakings given to the Commission.  Although I do not accept that any party to the dispute gave undertakings, I am of the view that the parties reached an understanding, with the Commission's assistance, as to a process to be followed.  Parties are expected to honour such a process.  I accept that MSHHS imperfectly complied with the process as a technical problem occurred in the delivery process.  MSHHS relied on its statutory obligations to prevent it from disclosing certain documents.  Other documents were made available while yet others were to be shown to Dr Misiura at the interview.  It is not appropriate in these proceedings for the Commission to consider or determine whether the legal reasons given by MSHHS are soundly based.  However, relevant to my determination of the application before the Commission is that Dr Misiura did not seek a relisting of the dispute conference to inform the Commission of the alleged departure by MSHHS from the understood process about discovery.
  1. [42]
    Rather, it was not until 12 months later that a formal step was taken in the Commission to ensure compliance with the process established.  The Commission notes that Dr Misiura had made a Right to Information request in June 2013, prior to the resumption of the conciliation conference, and there was a release of documents over time.  He had also lodged a grievance and ultimately a public service appeal about the apparent disregard by MSHHS of the discovery process agreed between the parties before the Commission.  Despite this activity, he did not seek a resumption of the conciliation conference to resolve the discovery issue.  This would have been a quick and inexpensive step to have taken particularly when Dr Misiura first believed the understanding about discovery had not been honoured.
  1. [43]
    The particularly pertinent question is whether discovery of documents remains a matter arising from the Notice of Industrial Dispute at this point.  It is important to note at the outset that discovery was discussed in the second conciliation conference in the context of the issues raised in the industrial dispute.  When the parties met on 2 July 2013 they discussed discovery in relation to the two allegations of suspected official misconduct made against Dr Misiura.  In that light, discovery is more properly considered as a consequential issue, discussed as a way that Dr Misiura could better understand the reasons the allegations had been made against him.
  1. [44]
    Dr Misiura might be dissatisfied with the way in which MSHHS handled discovery however the basis for proceeding down the path of discovery has now been overtaken.  The investigations have concluded.  No disciplinary action was taken against Dr Misiura albeit that an adverse finding was made by Dr Ashby in relation to the medication allegation.  Discovery is not then an outstanding issue from the industrial dispute.
  1. [45]
    It is worth noting that Dr Misiura had the opportunity to appeal the disciplinary finding under the PS Act.  The appeal process requires parties to provide documents relevant to the appeal.  Those documents are exchanged.  An appeal against the disciplinary finding on the medication complaint was not lodged.

Remuneration

  1. [46]
    Another argument made against the application by MSHHS is that the remuneration paid to Dr Misiura remains an issue in dispute.  MSHHS had advised Dr Misiura when the conduct allegation was first raised that his roster would be altered.  However, he would continue to be remunerated at the rate of his projected rostered working hours inclusive of penalty payments to ensure he was not financially disadvantaged.
  1. [47]
    Dr Misiura attests that MSHHS did not adhere to this commitment and refers to some email exchanges between the Queensland Nurses' Union of Employees and payroll of MSHHS seeking that he be paid according to his projected roster.  Dr Misiura says the matter of the correct remuneration remains outstanding.
  1. [48]
    The email exchanges relied on by Dr Misiura occurred in April 2013, before the dispute notification was lodged by Susan Moriarty and Associates.  Although Mr Bassett said remuneration had been mentioned at the conciliation conferences, it was his understanding there had been a couple of payroll glitches and these had been resolved.  Any concerns about quantum had not been raised with him.
  1. [49]
    My attention was not drawn to any references in the transcripts of the dispute conferences to any concerns being raised on the part of Dr Misiura about the quantum of his remuneration nor was I able to locate any such references.  Dr Misiura does not attest to the matter being discussed in the conciliation conferences - either on or off the record.  It was not a matter raised in the Notice of Industrial Dispute and the references made in Dr Misiura's Affidavit predate the lodging of that Notice.  The Application for Directions seeks a range of relief but does not include the remuneration issue.  In the circumstances I am not satisfied that it is either an outstanding issue or one that has evolved from the industrial dispute. 

Incident of Racial Abuse and Harassment and Victimisation

  1. [50]
    These two matters are connected.  Dr Misiura made reports both orally and in writing about racial abuse as a result of an incident he witnessed.  He claims that these reports were public interest disclosures and were not treated seriously by MSHHS.  Following these reports Dr Misiura began experiencing negative incidents at work, was ostracised and harassed.  These matters are raised in the Notice of Industrial Dispute.  It is contended that these matters remain matters of dispute and should be "properly dealt with in the public interest at conciliation or arbitration."
  1. [51]
    I accept the submissions made on behalf of Dr Misiura that his concerns about these matters were relegated once the allegations of suspected official misconduct were levelled against him.  His priority became responding to these allegations to ensure he maintained a clean employment record.
  1. [52]
    These events purportedly occurred from July 2012 to January 2013 and before Dr Misiura's relocation to the East Wing.  Although Dr Misiura sought a transfer as an outcome in the Notice of Industrial Dispute and this was obtained prior to the conciliation conference, no other specific outcomes in relation to these issues were sought or pursued at the dispute conferences.  Dr Misiura now contends the issues remain outstanding but it is not clear what action from the Commission is contemplated.  The submissions made on his behalf note that no applications have been made under the IR Act or the PID Act but state the absence of any application does not mean that there are no issues in dispute.  Reference was made to the dynamic nature of disputes and the fact that they evolve over time.
  1. [53]
    These are not "new" or "changed" issues resulting from the evolution of the industrial dispute.  They are ones that were raised in the original Notice of Industrial Dispute.  I am not persuaded that the Notice of Industrial Dispute should remain on foot in circumstances where the alleged events occurred two years ago; Dr Misiura is now located in another work area; and the specific relief sought was not identified or pursued after the transfer occurred.  The Application for Directions specifies some relief which might address Mr Misura's concerns but the power sought to be exercised by the Commission in providing that relief is unclear or unable to be exercised through conciliation or arbitration. 

The Investigations into the Alleged Misconduct

  1. [54]
    Dr Misiura contends that although the complaints did not result in disciplinary penalties being imposed upon him, he nonetheless received threats from his employer in relation to his employment.  These threats remain matters in dispute as they amount to a series of final warnings; are not limited by time; remain on his record and as such impact on his career.
  1. [55]
    The Commission does not accept these contentions.  Dr Ashby was doing no more than notifying Dr Misiura of possible ramifications of any future similar conduct.
  1. [56]
    The evidence of Mr Bassett and Catriona McPherson, Solicitor, Crown Law, also made clear that no material relating to the investigations into the allegations of suspected official misconduct is retained in Dr Misiura's personnel file.  Separate, confidential files, which have restricted access, are kept for that purpose.

Conclusion

  1. [57]
    The Commission accepts the submissions made by MSHHS that Mr Bassett's affidavit shows that:
  1. (a)
    there are no outstanding allegations, complaints, investigations or discipline processes on foot against Dr Misiura;
  1. (b)
    no material relating to the investigations conducted with respect to the complaints of suspected official misconduct against Dr Misiura has been retained on his personal file;
  1. (c)
    there are currently no restrictions in place regarding Dr Misiura's authority to distribute medications, other than those imposed upon all registered nurses;
  1. (d)
    neither Dr Misiura nor his legal representative raised any issues with MSHHS about the industrial dispute from 3 February 2014 until his  application for directions made on 18 July 2014; and
  1. (e)
    Dr Misiura has at all relevant times remained working in the East Wing and has not raised any issues with MSHHS in 2014 regarding his work environment and/or the conduct of his colleagues.
  1. [58]
    I have not accepted that the five matters identified by Dr Misiura as requiring resolution through conciliation or arbitration remain outstanding or, for reasons given later, can be dealt with in the manner claimed in the Application for Directions.  I note that these five matters were said to be "some" of the matters that remain outstanding from the dispute.  It could reasonably be thought that a respondent to an Application to Dismiss Proceeding would have identified the full gamut of unresolved issues so that their position could be fully considered by the Commission given that success of the Application to Dismiss necessarily finalises the industrial dispute.  The Commission does not propose to permit the industrial dispute to continue so that Mr Misiura might pursue unspecified unresolved issues.
  1. [59]
    Further, Dr Misiura was advised by Deputy President Swan after the second conciliation conference that the conference would be relisted if required.  Commissioner Thompson also advised in the public service appeal matter that the possibility existed of the dispute being referred to arbitration.  Dr Ashby too indicated the possibility of the dispute being re-activated.  Despite all of this advice, no steps were taken from 21 June 2013 until 18 July 2014 by Dr Misiura to further prosecute the dispute in the Commission.
  1. [60]
    For the foregoing reasons it is appropriate to dispose of the industrial dispute. 
  1. [61]
    The Application to Dismiss Proceeding was brought under s 274(2) of the IR Act with s 331(b) cited as an alternative provision.  Section 229 of the IR Act provides that a dispute is initiated by way of notice given to the Industrial Registrar.  Rule 8 of the Industrial Relations (Tribunals) Rules 2011 confirms that a Notice of Industrial Dispute is not an application albeit that it starts proceedings.   In Department of Corrective Services v The Queensland Public Sector Union of Employees,[1] Hall P said that the power under s 274(2)(b) is available to the Commission to dismiss or grant an application whereas the relevant power to leave an industrial dispute unresolved by dismissing it or refraining from hearing it is found in s 331(b) of the IR Act.  It seems to me that this power may also be exercised where a dispute has been resolved.  In the circumstances I have decided not to proceed under s 274(2)(b) but to consider the alternative provision of s 331(b) of the IR Act.
  1. [62]
    Section 331(b) permits the Commission to dismiss or refrain from further hearing or deciding a cause where the cause is trivial or further proceedings by the Commission are not necessary or desirable in the public interest.  An industrial cause includes an industrial dispute:  Schedule 5 of the IR Act.
  1. [63]
    In my view the appropriate course is, pursuant to s 331(b), to dismiss the cause, that is, the industrial dispute, D/2013/83, because further proceedings are not necessary or desirable in the public interest for the reasons set out in paragraphs [57] to [59] of this decision.

The Application for Directions

  1. [64]
    It was submitted on behalf of Dr Misiura that were the Notice of Industrial Dispute to be dismissed then the Application for Directions would also be dismissed as the latter was related to the conduct of the industrial dispute.  Although the Commission has dismissed the industrial dispute the result is that the Application for Directions can then have no effect and is dismissed pursuant to s 274(2)(b) of the IR Act.  I would record that I would have dismissed the Application for Directions in any event.  Set out below are some of my reasons that course would have been adopted.
  1. [65]
    The Application for Directions seeks outcomes that the Commission would be unable to exercise using either its conciliation or arbitral powers.   It is a grab bag of remedies sought without regard to the jurisdiction the Commission would be required to exercise to deliver the relief.  For example, the Application for Directions seeks a civil penalty be imposed on MSHHS.  Section 120 is contained within the Civil remedies provisions of Part 4, Chapter 4 of the IR Act.  These provisions are discreet.  An order for a penalty can only be made on application under that section and a decision from the Commission that a person has contravened Part 4.  As MSHHS notes, no such application has been made and the Commission cannot make that finding using its arbitral power.
  1. [66]
    The Application also seeks a decision with reference to the PID Act.  There is an issue as to whether the complaint made by Dr Misiura constitutes a public interest disclosure and the actions said to have been taken against him were reprisal actions.  It is not a matter for the Commission to determine in these proceedings, but in my view these characterisations might be difficult to establish having regard to the meaning of "public interest disclosure" under the PID Act.  In any event, it is likely that the decisions sought from the Commission with respect to public interest disclosure issues are beyond the power of the Commission under the IR Act and particularly in its arbitration jurisdiction.  The PID Act empowers the Commission to grant an injunction in circumstances of a reprisal.  However, to achieve that remedy the application has to be made under that Act.
  1. [67]
    The Commission also accepts the submission made by MSHHS that the declarations and consequential orders sought by Dr Misiura through his Application for Directions would arguably be an exercise of the Commission's judicial power and beyond the power of the Commission under s 230(4) of the IR Act.
  1. [68]
    For these reasons, the Application for Directions is not one that on any view of the facts or the law can succeed.  In that case s 274(2)(b) of the IR Act would permit the Commission to dismiss the Application for Directions.[2] 

Costs

  1. [69]
    MSHHS seeks that Dr Misiura pay the costs of and incidental to its Application to Dismiss Proceeding.  No particular submissions were made by MSHHS in support of this order.
  1. [70]
    Dr Misiura opposes any order for costs being made, arguing that the costs power is limited to cases where an application was brought vexatiously or without reasonable cause: s 335(1)(a) of the IR Act.
  1. [71]
    In the absence of submissions that the Notice of Industrial Dispute and the Application for Directions were made vexatiously or without reasonable cause, I am not disposed to award costs.
  1. [72]
    Order accordingly.

Footnotes

[1] Department of Corrective Services v The Queensland Public Sector Union of Employees (2006) 182 QGIG 152, 153.

[2] Department of Corrective Services v The Queensland Public Sector Union of Employees (2006) 182 QGIG 152, 153.

Close

Editorial Notes

  • Published Case Name:

    State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura

  • Shortened Case Name:

    State of Queensland (Metro South Hospital and Health Service) v Andrew Misiura

  • MNC:

    [2015] QIRC 30

  • Court:

    QIRC

  • Judge(s):

    Fisher IC

  • Date:

    19 Feb 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
Department of Corrective Services v The Queensland Public Sector Union of Employees (2006) 182 QGIG 152
3 citations
Jump To
Cite 1 - (2006) 182 QGIG 152
Cite 2 - (2006) 182 QGIG 152
Cite 3 - (2006) 182 QGIG 152

Cases Citing

Case NameFull CitationFrequency
Ganly v Queensland Audit Office [2015] QIRC 1083 citations
Naidoo v George [2016] QIRC 804 citations
State of Queensland (Queensland Health) v Together Queensland, Industrial Union of Employees [2024] QIRC 2893 citations
1

Require Technical Assistance?

Message sent!

Thanks for reaching out! Someone from our team will get back to you soon.

Message not sent!

Something went wrong. Please try again.