Greenwood v Queensland[2016] QIRC 125

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

Decision (Costs)

Background

1. [1]
   In a Decision now published at http://www.qirc.qld.gov.au I found the dismissal of Ms Quaneta Greenwood by State of Queensland (Queensland Health) from her position as a Speech Pathologist with Queensland Health at the then Sunshine Coast Wide Bay Health Service District (the District) was harsh, unjust or unreasonable and ordered her reinstatement to her former position.  Subsequently, through her solicitors, Ms Greenwood made an application for costs, in whole or in part, pursuant to
   s 335(1)(b) of the Industrial Relations Act 1999 (the Act) to be assessed on a party/party basis or on an indemnity scale as determined by the Commission. 

2. [2]
   Relevantly, s 335(1) provides as follows:

"(1)  The court or commission may order a party to an application to pay costs, including witness expenses and other expenses, incurred by another party only if satisfied -

1. (a)
   …
2. (b)
   for an application for reinstatement—the party caused costs, including witness expenses and other expenses, to be incurred by the other party because of an unreasonable act or omission connected with the conduct of the proceedings.

2. (2)
   …"

The Applicant's contentions

3. [3]
   The unreasonable acts or omissions of the respondent connected with the conduct of the proceedings at first hand said to underpin the validity of the application for costs were identified as follows:

1. Failure to accept Ms Greenwood's offer to settle the matter by waiving her claim for lost entitlements if she was reinstated to her former position;

2. Unnecessarily lengthening the proceedings by failing to objectively assess the respondent's prospects of success in resisting her application for reinstatement on the ground that Ms Greenwood's termination of employment was not harsh, unjust or unreasonable and, thereby, not limiting the proceedings to the question of whether reinstatement was impracticable;

3. Prolonging the proceedings by failing to properly disclose relevant material until specifically ordered to do so by the Commission; and

4. Acting unreasonably by omitting to bring to the attention of the applicant and the Commission the fact that a speech pathology position had become available in the District in circumstances where the respondent had previously argued that reinstatement was impracticable because there were no vacancies.  Such omission caused additional costs to be incurred when the applicant was required to file an application for interlocutory relief to prevent the respondent filling the vacant position pending the Commission's determination of Ms Greenwood's application for reinstatement. 

Submissions on behalf of the respondent

4. [4]
   The application for costs was opposed by the respondent, which advanced the following arguments in response to the points raised by Ms Greenwood:

2. The legitimacy of the respondent's opposition to Ms Greenwood's claim for reinstatement was demonstrated in the Commission's Reasons for Decision.  The matters referred to by the Commission contradicted the applicant's assertions that the respondent caused unnecessary prolongation of the proceedings. While the Commission took into account Ms Greenwood's evidence, appearance and comments during the hearing when it determined that reinstatement was possible, much of the substance of her evidence in reply was unknown to the respondent until she gave her evidence, due to the decision to delay the leading of a substantial part of her evidence in reply until she entered the witness box;

3. The provisions of the Health Services Act 1991 (Qld) (the HSA) imposed strict conditions on the ability of the respondent to disclose the health records of individual patients, in that s 62B of the HSA only allowed the disclosure of health records as required by law - including via an Order for disclosure.  The respondent "having considered its obligations, the nature of the application and the speech pathology entries considered in the Bell Report… disclosed redacted copies of patient records in order to meet its disclosure obligations and comply with its obligations under the HSA".  The applicant only raised the issue of the alleged inadequacy of disclosure of patient files one day prior to the commencement of the trial and augmented her requests during the hearing.  Despite earlier exchanges of correspondence between the parties on this issue no attempt was made to seek an earlier disclosure.  Consequently, any loss of hearing time was not the fault of the respondent.  Further, no additional costs were incurred because the records would have needed to be perused regardless of when they were disclosed;

4. When oral submissions were made the evidence was that no speech pathology positions existed within the District.  Once the respondent became aware of the existence of an available position it contacted the Commission and advised that it no longer sought to rely upon certain parts of the submissions which it previously made.  The application by Ms Greenwood to seek an injunction restraining the respondent from filling the vacant position was unnecessary and unwarranted.  Where an order for reinstatement or re-employment is made by the Commission the respondent employer is compelled to comply. 

Failure to compromise the application

5. [5]
   Notwithstanding my ultimate decision to order Ms Greenwood's reinstatement to her former position, the respondent did not cause costs to be incurred because of any unreasonable act or omission connected with the conduct of the proceedings by not compromising her application before, or during, the proceedings. 

6. [6]
   Rather, as Mr Murdoch - who appeared for the respondent - noted in his submissions, the Commission recorded its agreement with a number of performance, behavioural and other concerns about Ms Greenwood which had been advanced by witnesses for the respondent during the course of the trial (see for example paragraph [252]).

7. [7]
   From my perspective, many of the respondent's witnesses held longstanding concerns about Ms Greenwood's capacity to follow instructions and directions issued to her, as well as work as part of a team, and the respondent was entitled to resist her claim for reinstatement given these strongly held views. 

8. [8]
   However, in the end result and after carefully considering the evidence of these witnesses, I took into account a number of other matters - as a result of my assessment of Ms Greenwood's evidence, appearance and comments during the hearing - when I decided that:

• the difficulties between Ms Greenwood and certain members of management could be overcome;
• Ms Greenwood was capable of working with others to increase her skill levels; and
• given these points, and others, she was capable of successfully returning to her previous role as a speech pathologist.

9. [9]
   In light of the above facts, the respondent's strong opposition to Ms Greenwood's application for reinstatement was not unreasonable. 

Prolongation of proceedings

10. [10]
    In the course of my decision (see paragraphs [160] to [259], inclusive) I was particularly critical of the whole of the disciplinary/show cause process which culminated in Ms Greenwood's termination. In the course of such criticism I highlighted the significant failures of Ms Hanson, Mr Hegarty and Mr Kalimnios, respectively, to afford Ms Greenwood natural justice as well as their general failure to follow due process (see for example paragraph [250]).  

11. [11]
    In the course of my findings I recorded:

"[253] In light of those findings (as well as my comments at [250] above) the only question to be decided is whether the termination of Ms Greenwood's employment by Mr Kalimnios on 25 August 2009, in all of the circumstances, was harsh, unjust or unreasonable?  In answering that question I generally agree with Mr Watson's submission that a relevant enquiry to make is "does the punishment (termination of employment) fit the crime?". 

[254] Listening to the evidence unfold it seemed to me that Ms Greenwood's fate was almost certainly sealed once her memorandum of 18 April 2007 came into Ms Winsor's possession.  Instead of discussing the memorandum with Ms Greenwood, to clarify why it had been sent and what it was intended to say, Ms Winsor suspended Ms Greenwood and set in motion a disciplinary process which was akin to a runaway train.  It ignored warning signs and pleas for it to slow down or stop, gathering pace as it went along.

[255] Paragraph [250] above highlights the deficiencies in the steps taken by Queensland Health in progressing its disciplinary process against Ms Greenwood from the time of the second show cause letter.  By and large, while it went through the motions of providing Ms Greenwood with the second show cause letter and the proposed penalty letter, the reality was that the whole process was seriously flawed.  As noted, none of the allegations were, in any way, tied to the particular sections of the 2008 Act and/or the Code of Conduct alleged to have been breached.  Further, Ms Hanson seemed more interested in expediting the process (towards its inevitable conclusion) than providing natural justice to Ms Greenwood.  This is demonstrated by her choice of words in the proposed penalty letter where she wrote "… I believe a further extension of time is undesirable given the extensive period of additional time already allowed for you to complete your response and the need in your interest, as well as Queensland Health's interests, to bring this process to a conclusion as quickly as possible.".

[256] More importantly, however, both Mr Hegarty and Mr Kalimnios took into consideration, and gave undoubted weight to, matters totally outside the actual allegations put to Ms Greenwood when they decided, respectively, to recommend and then terminate Ms Greenwood's employment.

[257] Further, as a public sector employer, Queensland Health has a clear obligation to follow the actual processes set out in the relevant Public Service Act, not just to go through the motions.  In this case, the processes followed contained many deficiencies.  Ms Greenwood was not provided with natural justice at several stages during the process following the second show cause letter.

[258] Overall, it seemed to me that the decision to terminate Ms Greenwood's employment was based less on the matters canvassed with her during the show cause process than her previous history and reputation both within the District and Queensland Health generally.

[259] Ultimately, after considering the merits of the factors relied upon by Queensland Health to support its decision to terminate Ms Greenwood's employment (summarised at paragraph [252] above but referred to in more detail elsewhere in this Decision) as well as the procedural deficiencies (see paragraph [250] above) I have reached the conclusion that the decision of Queensland Health to terminate Ms Greenwood's employment on 25 August 2009 was harsh, unjust or unreasonable."

12. [12]
    While my choice of words at the time might have been somewhat colourful, they were designed to emphasise the point that the respondent's decision makers gave token lip service to their obligations under the Public Service Act 2008 and the public sector's Code of Conduct, so keen were they (as a group) to show Ms Greenwood "the door", and that her dismissal was very harsh, unjust and unreasonable.

13. [13]
    Given the multiple, and very significant, flaws in the disciplinary process, which should have been obvious to the respondent from the time it began to oppose Ms Greenwood's application for reinstatement, I have come to the view that the respondent did cause costs to be incurred by the other party because of the unreasonable act of attempting to argue that its decision to terminate Ms Greenwood's employment was not harsh, unjust or unreasonable. 

14. [14]
    Rather, as a model litigant, the respondent should not have attempted to defend the indefensible and should have acted to concede - notwithstanding any potential damage to the reputations of those senior officers involved in the decision making process - that Ms Greenwood's termination was harsh, unjust or unreasonable.  Importantly, such concession would not have stopped it continuing to oppose Ms Greenwood's application for reinstatement.

15. [15]
    On my estimation, the approach adopted by the respondent led to the case running for several days longer than was necessary, and I so decide.

Failure to discover patient records

16. [16]
    In opposing this aspect of the Applicant's claim, the respondent argued, firstly, that the relevant provisions of the HSA restricted its capacity to disclose patient records and, secondly, that notwithstanding such restrictions, it did disclose all documents that were "relevant to the proceedings under the Directions Order".  In so arguing, it sought to refute Ms Greenwood's contention that its failure to provide unredacted copies of the patient records examined by Ms Malcolm caused her to incur additional costs while the proceedings were stood down on several occasions until copies of the complete files were provided or extracts of the files were located after they were called for.  

17. [17]
    The nature of the content of the patient records which needed to be disclosed was discussed on Day 2 of the proceedings.  At that time, Mr Watson - who appeared for Ms Greenwood - indicated that his instructor and the legal representative of the respondent were in discussion about the provision of such material.  While the legal representatives each agreed that excising material which was not relevant to the proceedings was appropriate, they were having difficulty defining "relevant/relevance".

18. [18]
    In the course of the proceedings that day I observed that Ms Greenwood was likely to have difficulty in making sense of redacted records if she was, for example, only given two and one-half or three and one-half pages of a 10 page medical record and which only contained copies of her own entries.  In response, the respondent's representative indicated her client's preparedness to disclose "all that is relevant on the files".

19. [19]
    While the proceedings on Day 2 concluded on the basis that the respondent would discover the relevant material and the applicant had leave of the Commission to return at short notice if the material was inadequate, the records ultimately discovered contained only notes entered by Ms Greenwood in her capacity as the treating Speech Pathologist.  As such, the disclosed records provided no context whatsoever as to what might have prompted Ms Greenwood to enter the particular entry she did, nor allow her to relate that entry to other entries made by doctors, nurses and other allied health professionals.

20. [20]
    It was against this background that Ms Greenwood was expected to respond, under oath, to a number of critical comments made about her entries in a Report prepared by Ms Malcolm as the result of an "audit" of a number of patient records.  Such task was nigh on impossible to undertake without access to (essentially) the whole of the relevant patient records - a point which should have been obvious to those who undertook the original task of copying the records so that they could be disclosed to Ms Greenwood or, if not fully disclosed, available in the Commission if they were called for.

21. [21]
    Quite apart from the point made immediately above, the failure of the respondent to provide unredacted records prevented Ms Greenwood from being able to respond to particular criticisms by Ms Malcolm about the inadequacies in Ms Greenwood's record keeping in that the entries of other (in particular) allied health staff were not available to compare.  As I noted in my decision at paragraph [217], Ms Malcolm and, later, senior staff in the District and in Head Office all adopted double standards in their consideration of the nature of Ms Greenwood's entries vis a vis the entries of other staff - most particularly other allied health professionals.  

22. [22]
    Further, the alleged restrictions on the District's ability to disclose records, because of the operation of s 62A of the HSA were very much overstated.  Relevantly, the HSA states:

"62A  Confidentiality

1. (1)
   A designated person or former designated person must not disclose to another person, whether directly or indirectly, any information (confidential information) acquired because of being a designated person if a person who is receiving or has received a public sector health service could be identified from the confidential information.  (my emphasis)

Maximum penalty—50 penalty units.

…

62B  Disclosure required or permitted by law

Section 62A(1) does not apply to the disclosure of confidential information by a designated person if the disclosure is required or permitted by an Act or another law."

23. [23]
    All that the District was required to do was to black out, or otherwise delete, the name of the patient on any record and to provide some other form of coding (for example, the patient's initials) so that Ms Greenwood and her advisors could have attempted to make sense of the entries in Ms Malcolm's Report.  There was absolutely no need to redact entries made by other staff within the District.  The act of redacting entries other than those of Ms Greenwood was an unreasonable act or omission connected with the conduct of the proceedings. 

24. [24]
    As it turned out, the proceedings were stood down for all but 10 minutes on Day 5, for one hour on Day 6 and for 3 hours on Day 9 while the respondent photocopied patient records and/or had them driven down from Hervey Bay.  In addition, the flow of the proceedings was regularly interrupted as records or charts were called for and copies were found and made available.

25. [25]
    All in all, I estimate that the failure of the respondent to readily disclose what were, in the majority of cases, obviously relevant records led to the proceedings being prolonged by two days, and I so decide. 

26. [26]
    In so deciding, I specifically reject Mr Murdoch's submission to the effect that this time would still have been expended by Ms Greenwood's legal representatives if the relevant information had been disclosed earlier.  This is because such submission assumes that the time taken to read the material would have been charged at an hourly rate and that Ms Greenwood would not have been charged any more than she was.  However, as Mr Watson pointed out, in response to a specific question I asked of him, he charged a daily rate whenever he was briefed to appear in a court/tribunal for a day, irrespective of whether he worked for two hours or 10 hours.

Availability of a speech pathology position

27. [27]
    I am inclined to agree with the substance of the submissions of Mr Murdoch to the effect that it was not really necessary for Ms Greenwood to lodge her application which sought an injunction to restrain the District from filling the vacant speech pathology position, notwithstanding that the resulting proceedings led to clarification of the reporting structures in the District. 

28. [28]
    Irrespective of whether it acted to recruit one or more speech pathologists the respondent was always going to have to comply with any order of the Commission to reinstate Ms Greenwood to her former position if her application was successful.  Consequently, the respondent did not cause Ms Greenwood to incur any additional costs because of any unreasonable act or omission on its part in relation to the issue of a position becoming available.

Is an order for costs warranted?

29. [29]
    In opposing Ms Greenwood's application for costs, Mr Murdoch indicated that she had a high bar to reach to succeed in that she had to establish that the conduct of the respondent was of such character that it could be described as "objectively unjustifiable" in the relevant circumstances.  It was not sufficient to just point to the fact she was successful in her original application for reinstatement.  She was required to do much more. 

30. [30]
    In this respect, Mr Murdoch said that Ms Greenwood had to:

• demonstrate that there was some unreasonable act/s or omission/s on the part of the respondent; and
• establish some causative relationship between the impugned act/s or omission/s and the costs incurred; and
• satisfy the Commission that it should exercise its discretion to make an award for costs.

31. [31]
    My consideration of the matters raised by Mr Watson in support of Ms Greenwood's application for an award for costs (above) identifies several unreasonable acts on the part of the respondent (see paragraphs [12] to [15] and [19] to [26], respectively) sufficient to cause me to be satisfied that each of the first two tests has been satisfied and that this is an appropriate case for me to exercise my discretion to make an award for costs.

Nature of the costs

32. [32]
    Mr Watson argued very strongly that Ms Greenwood should be awarded her costs in relation to the unreasonable acts or omissions of the respondent on an indemnity basis or, if the Commission was not so minded, on a legal representative/client basis. 

33. [33]
    In doing so, he stressed that the respondent, as a model litigant, should be held to a higher standard of accountability than other participants in matters coming before the Commission.  For example, the respondent should have taken greater effort to assess the procedural steps undertaken by it which led to its decision to terminate Ms Greenwood's employment.  Had it done so, it would have identified the many failings and flaws recorded by the Commission in its decision (see for example paragraph [250]).  In addition, the respondent should also have taken greater care to meet its disclosure obligations. 

34. [34]
    Mr Watson also stressed that the Commission's decision to reinstate Ms Greenwood to her former position with full backpay and restoration of benefits was in excess of the outcome Ms Greenwood was prepared to accept when she first sought to settle the matter.  Referencing the principles set out in Calderbank^[1] he said that she should be awarded all of her costs.

35. [35]
    In my view, this is not a case where the principals recorded in Calderbank should be followed.  This is because the proceedings did not just involve arguments about the rights of the respective parties in terms of a financial outcome.  Instead, they involved one party strenuously pursuing reinstatement to her former position with the other party resisting that application just as strenuously. 

36. [36]
    Given the six month cap to any compensation which the Commission might have ordered if it found Ms Greenwood's termination to have been harsh, unjust or unreasonable but reinstatement (or re-employment) to be impracticable, any refusal to accept an offer to settle which included a claim for reinstatement - where the other party was totally opposed to such outcome - could not be said to be an unreasonable refusal to settle. 
37. [37]
    Further, notwithstanding that the respondent caused additional costs to be incurred by Ms Greenwood because of its unreasonable acts I do not consider that this is an appropriate case for costs to be awarded on an indemnity basis.  Equally, given the nature of the unreasonable acts and the respondent's status as a model litigant, I do not consider an award for costs pursuant to the usual Scale to be appropriate.

38. [38]
    Instead, I have decided to award a global amount of $17,500 to Ms Greenwood pursuant to s 335(1)(b) of the Act.  In so deciding, I have taken into account that:

• the unreasonable acts/omissions led not only to additional "court time", but also led to additional briefing/preparation time to prepare for, and deal with, those aspects of the evidence led by the respondent which went to the issue of whether the termination was harsh, unjust or unreasonable;
• Ms Greenwood incurred additional accommodation and meal costs for, at least, four additional nights because the proceedings were prolonged as a result of the respondent's acts/omissions;
• the delay in my issuing of this costs decision has resulted in Ms Greenwood losing interest on the amount for costs awarded to her.

39. [39]
    I have chosen to award a global amount, rather than adopt some other process, so as to avoid the need for the parties to incur still further costs by needing to calculate and/or agree an exact amount for costs if I, for example, ordered costs be awarded, inter alia, for time lost on Days 5, 6 and 9, respectively on a legal representative/client basis.  This is because I am apprehensive that the parties would not be able to agree on such matters and still further costs would be incurred through resumed proceedings (see the submissions of Mr Murdoch on this point at T 17-67, line 55 to T 17-68, line 10).

40. [40]
    It goes without saying that in making an award for costs in the amount of $17,500 I provide the necessary certifications to the effect that it was necessary for Ms Greenwood to be legally represented by both Counsel and Solicitor. 

41. [41]
    The amount for costs awarded is to be paid to Ms Greenwood within 22 days of the date of release of this decision. 

42. [42]
    I order accordingly.