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  4. Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) - [2016] QIRC 18

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Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)[2016] QIRC 18

Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)[2016] QIRC 18

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] QIRC 018

PARTIES:

Gobus, Henry

(Applicant)

v

State of Queensland (Cairns and Hinterland Hospital and Health Service)

(Respondent)

CASE NO:

TD/2015/6

PROCEEDING:

Application for reinstatement

DELIVERED ON:

12 February 2016

HEARING DATES:

19 – 21 October 2015

HEARD AT:

Cairns

MEMBER:

Deputy President Kaufman

ORDER:

The application is dismissed. 

CATCHWORDS:

INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - termination of employment - recruitment process – reprisal action – Public Interest Disclosure – whether operative factor in decision to dismiss

LEGISLATION:

CASES:

Industrial Relations Act 1999, s 73, s 77

Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500

Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20

Byrne v Australian Airlines Limited (1995) 185 CLR 410

Gold Coast District Health Service v Walker (2001) 168 QGIG 258

Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914

APPEARANCES:

Mr H Gobus, in person.

Dr M Spry, of counsel, instructed by C Lyndon, Minter Ellison Lawyers, for the Respondent.

Reasons for Decision

  1. [1]
    Mr Henry Hubert Gobus has applied to the Commission for relief following the termination of his employment by the State of Queensland (Cairns and Hinterland Hospital Health Service) ('the agency').  He seeks reinstatement to his former position on the basis that the termination of his employment was unfair within the meaning of s 73 of the Industrial Relations Act 1999 ('the Act').
  1. [2]
    The applicant contends that his dismissal was unfair for a number of reasons, generally falling into two categories; first that the applicant's dismissal was due to his alleged Public Interest Disclosure ('PID') of 18 August 2014 ('18 August letter'), and was therefore a dismissal for an invalid reason; and, secondly, that the applicant's dismissal was harsh, unjust, or unreasonable.

Relevant legislation and authorities

  1. [3]
    Section 73 of the Act relevantly provides:

"73 When is a dismissal unfair

 (1) A dismissal is unfair if it is-

  1. (a)
    harsh, unjust or unreasonable; or
  1. (b)
    for an invalid reason.

 (2) Each of the following is an invalid reason—

 ...

 (f) the making by anyone, or a belief that anyone has  made or may make—

  1. (i)
    a public interest disclosure under the Public Interest Disclosure Act 2010; …"
  1. [4]
    In an oft cited passage in Bostik (Australia) Pty Ltd v Gorgevski (No 1)[1],Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

"These are ordinary non-technical words which are intended to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of that decision on the employer. Any harsh effect on the individual employee is clearly relevant but of course not conclusive. Other matters have to be considered such as the gravity of the employee's misconduct."

  1. [5]
    Guidance on what might be considered 'harsh, unjust, or unreasonable' can be found in the judgment of McHugh and Gummow JJ in Byrne v Australian Airlines Limited[2]:

"… It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted."

  1. [6]
    These cases were decided in a different legislative context and there has been much jurisprudential writing on the concept of what constitutes an unfair termination of employment under various iterations of federal and state legislation.  Nevertheless, in my view, the passages set out above continue to serve as a useful overarching guide to the manner in which the exercise of determining whether a particular dismissal was unfair should be conducted.
  1. [7]
    Mr Gobus, of course, bears the onus of demonstrating, on the balance of probabilities, that the termination of his employment was unfair.[3]

Background to the termination

  1. [8]
    The applicant's employment at the agency commenced in March 2005.[4]  At the date of his dismissal the applicant was working in Cairns as a psychologist in the Acute Care Team.[5]
  1. [9]
    Until 25 May 2012, when Mr Gobus unsuccessfully sought promotion to a different position within the agency, there were no apparent problems with his performance at work.  During the course of the 25 May interview the applicant perceived a degree of impropriety stemming from another applicant allegedly having prior knowledge of an interview question.  On 26 May 2012, as a result of this perception, and prior to the other person being awarded the position, Mr Gobus made what would later be deemed[6] a PID to the Minister for Health.[7]
  1. [10]
    The PID contained a number of defamatory, or potentially defamatory, statements. The applicant was highly critical of the agency and several senior members of its staff. He did not mince his words.
  1. [11]
    On 28 September 2012, Mr Gobus sent a further letter to the Minister for Health expanding on the events outlined in the PID of 26 May 2012.[8]  It, again, made highly derogatory remarks about several of his colleagues and management personnel.
  1. [12]
    Mr Gobus' 28 September letter prompted Dr Donna Goodman, Acting Executive Director of Allied Health, to discuss the applicant's professional conduct with him in a meeting on 10 October 2012.[9]  The outcome of the meeting placed Mr Gobus under the supervision of one of his colleagues until that person was "…satisfied that [it] was no longer required."[10]  The duration of the supervision is unclear. 
  1. [13]
    On 24 October 2012, Caroline Wagner, Executive Director People and Culture, wrote to Mr Gobus and informed him that the investigation started in June 2012 had not substantiated his PID allegations of May 2012.  The letter also informed him that there had been some "concerns raised" about his conduct.  Mr Gobus responded to the concerns on 12 November 2012.  It is not necessary to go into the details.
  1. [14]
    On 19 November 2012 Mr Gobus lodged an ultimately unsuccessful appeal against the promotion decision that had given rise to the PID.
  1. [15]
    On 13 March 2013 the applicant sent another letter to the Minister for Health about the recruitment decision.  The applicant was informed on 7 May 2013, in writing, that the issues outlined in the letter had already been investigated and no further response from the Minister would be forthcoming.[11]
  1. [16]
    A show cause letter was sent to the applicant on 31 July 2013 in relation to the "concerns" raised in the 24 October 2012 letter.[12]  Mr Gobus was informed that his explanations for some of the concerns about his conduct had been accepted but that there were still grounds for discipline and action was being considered.  The remaining grounds were:

"1.On or around 28 September 2012 you accessed and/or copied confidential patient information… without authority and when it was not a requirement of your role.

 2.On 28 September 2012 at 9.11am you inappropriately sent an email with the subject "official misconduct - attempting to pervert justice - fraudulent falsification of records" from your Queensland Health email account which:

  1. attached confidential information identifying three patients… and the treatment they received; and/or
  2. was sent to ten recipients (as outlined in Attachment One) who were not involved in the direct care of the patients and/or did not require the information.

 3.On 28 September 2012, in sending the email with the subject "official misconduct - attempting to pervert justice - fraudulent falsification of records" to the ten recipients (as outlined in Attachment One), you failed to follow the appropriate process to address workplace concerns. "

  1. [17]
    Each of the allegations stemmed from Mr Gobus' 28 September 2012 PID with its attachments.
  1. [18]
    Mr Gobus was provided fourteen days within which to respond to those allegations.  No response was received by the agency.
  1. [19]
    The applicant was sent a second show cause letter on 20 October 2013[13] informing him that the allegations outlined in the letter of 24 October 2012[14] had been substantiated and that disciplinary action would follow.  The reasons supporting the substantiations were numerous.  The proposed disciplinary action would see Mr Gobus forfeit two remuneration increment levels for a period of twelve months.  Mr Gobus was provided with an opportunity to explain why the disciplinary action should not be imposed.   The applicant's response to the second show cause letter was received on 31 October 2013 with an attachment dated 30 October 2013.
  1. [20]
    In a letter dated 19 November 2013 the agency informed Mr Gobus of its decision to impose a disciplinary penalty of forfeiture of two remuneration increments for a period of twelve months.  Mr Gobus unsuccessfully appealed the disciplinary decision.[15]
  1. [21]
    On 13 May 2014,[16] Mr Gobus sent an email to Ms Lucille Griffiths, Director of Allied Health, Mental Health and ATODS.  The email requested that there be some "conflict resolution" between himself and Ms Cherie Schaeffer.  Mr Gobus asked me to note that this was the first action that he had taken, that could in any way be characterized as a complaint, since his letter to the Minister of 13 March 2013.
  1. [22]
    Ms Schaeffer was the applicant who allegedly had had prior knowledge of an interview question for the interview on 25 May 2012.  Mr Gobus' PID, and subsequent correspondence with numerous people, discussed Ms Schaeffer's relationship with Dr Tim Shaw (who had been a member of the panel for the 25 May interview) and her lack of qualifications for the position she obtained.  The working relationship between Mr Gobus and Ms Schaffer, post 25 May 2012, does not appear to have been a happy one.
  1. [23]
    Ms Griffiths acknowledged the request for conflict resolution on 14 May 2014 and told Mr Gobus that she would follow up on that request.[17]  There was no further correspondence about the request.
  1. [24]
    On 6 June 2014,[18] Mr Gobus was informed of allegations of workplace harassment made against him by Ms Schaeffer; the letter was quite detailed.  The allegations were general statements that Mr Gobus had spoken negatively about Ms Schaeffer, repeated unsubstantiated claims about her, belittled and criticized her, spoken to her rudely and in a demeaning manner, excluded her from conversations in order to embarrass her and, subjected her to ridicule.
  1. [25]
    Mr Gobus was invited to an interview with Mrs Karen Buckingham, Human Resources Manager, in order to discuss the complaint so that he could provide his recollection of the events.  The letter also invited Mr Gobus to lodge a written response.  Ms Wagner also told Mr Gobus that she was:

"…only considering this matter at this stage.  If after considering any response from you provided in writing or at interview, I determine further action is required, I will contact you again to provide details of the further action."

  1. [26]
    The applicant’s response to the letter was received by Mrs Buckingham via email on 24 June 2014.[19] It stated the following:

 "Hi Karen

 I have the concern that the allegations are very general

 Could you provide me with

Time date and place and person for each of the listed allegations and description of the circumstances

 This would enable me to respond to the allegations from an informed perspective

 Kind regards

 henry"

  1. [27]
    The applicant’s reasonable request for more information was met with a comprehensive and cooperative reply the following day[20] which clearly set out the steps being taken to investigate the complaints.
  1. [28]
    Mr Gobus’ response to that email on 26 June 2014[21] expressed concern that, if the investigations were still ongoing, he would continue to be called back for further interviews.  As a result of this, Mr Gobus resolved:

"Until that [sic] time that I receive a notice that Queensland Health has now closed all the enquiries in relation to this complaint it would be unfair to me to respond prematurely.

I look forward for Queensland Health to provide me with a notice that they have closed their enquiries and I am happy to respond to any matters raised."

  1. [29]
    Unfortunately, instead of waiting for that response from the agency, or following it up, Mr Gobus sent another letter to the Minister for Health on 18 August 2014.
  1. [30]
    The 18 August 2014 letter to the Minister summarized the history of Mr Gobus' workplace complaints in stronger language than he had previously used and then outlined the outcomes sought.  Mr Gobus characterized the letter as a further PID.  I doubt that this is an appropriate characterization as the letter is more a complaint about his perception of events.  The applicant also attached the initial PID made by him in 2012 and a bundle of correspondence which had arisen between then and 18 August 2014.
  1. [31]
    On 29 August 2014, some 11 days after Mr Gobus' 18 August letter, he was informally told that the allegations made by Ms Schaefer has been investigated, the investigation had concluded, and that no disciplinary action would be taken against him.[22]  At this point the agency was unaware that Mr Gobus had sent the 18 August letter.  On the same day, 29 August 2014, Mr Gobus lodged a complaint with the Anti-Discrimination Commission Queensland.  The agency received notice of the ADCQ complaint on 26 September 2014.
  1. [32]
    On 12 September 2014 the agency, having by then been informed of Mr Gobus' 18 August letter, sent him a letter setting out allegations about his conduct and explaining that there may be grounds for discipline.  The letter referred to Mr Gobus' previous disciplinary matter and that during its course he had been asked to familiarize himself with Human Resources Policy E13 - Workplace Harassment and the actions that may be taken against employees who make "malicious, frivolous or vexatious complaints."   The letter also contained the following paragraphs:

"In the letter [of 31 July 2013] you received a warning that your future behavior must, at all times, be professional and appropriate and comply with the Code of Conduct for the Queensland Public Service. You were also warned to be mindful of how your actions and comments may be perceived by others.  It was further highlighted that if you fail to behave professionally, appropriately and in line with the Code of Conduct for the Queensland Public Service, the warning would be taken into consideration in determining an appropriate course of action.

It is noted that in your correspondence to the Minister for Health dated 18 August 2014, a copy of which was received by my office on 29 August 2014, you have repeated unsubstantiated claims made previously, including in respect of recruitment and selection processes, associated investigations, statements and alleged actions by Queensland Health Management and employees that have previously been addressed under Appeal A7709 and a decision handed down by President D. R. Hall, Industrial Court of Queensland on 26 February 2013 dismissing your appeal.

I note that in your correspondence to Minister Springborg you include a series of new allegations against employees of this Health Service and include your belief that Commissioner Black, Queensland Industrial Relations Commission, who dismissed your appeal against a disciplinary decision PSA/2013/102 on 4 March 2012, has 'opened the door for Queensland Health to continue their bullying and victimization campaign against me.' "[23]

  1. [33]
    The allegation put to Mr Gobus in the same letter was:

"That in your correspondence to the Minister dated 18 August 2014, you have continued to make repeated unsubstantiated claims in respect of recruitment and selection process, associated investigations, statements and alleged actions of Queensland Health Management and employees that have previously been addressed under Appeal A7709 and Public Service Appeal PSA/2013/102."

  1. [34]
    Mr Gobus was provided 14 days within which to respond to the allegation.  His reply was received on 3 October 2014.
  1. [35]
    On 4 December 2014 the agency posted a second show cause letter (dated 1 December 2014) to Mr Gobus explaining that the allegations had been substantiated and that he might respond to the proposal to terminate his employment within 7 days.  This second show cause letter was not received by Mr Gobus until 8 December 2014.[24]
  1. [36]
    Mr Gobus' response to the second show cause letter was posted on 18 December 2014,[25] the same day that the agency signed, but did not send, a letter terminating Mr Gobus' employment.  He did not contact the agency on receipt of the second show cause letter to inform it that he had not received it until after the deadline for reply.
  1. [37]
    The agency received Mr Gobus' response on 19 December 2014.[26]
  1. [38]
    Mr Gobus received the letter of termination on 31 December 2014.[27]

Submissions of the applicant

  1. [39]
    Mr Gobus sought to revisit and re-agitate many historical matters; the events leading to the making of his PID, warnings and disciplinary decisions, etc.[28] I declined to let him lead evidence of this nature.
  1. [40]
    Mr Gobus submits that his approach to the events outlined above was generally with the intention of avoiding conflict.  As he explained during the hearing:

"From the 28th of September [2012] I have not conducted myself in any way inappropriately, have not complained to the Minister.  I went back in the workforce.  There were senior positions vacant and I tried to relieve in those and I was not allocated to those.  I did not complain, even though I thought it was unfair.  I did not write to the Minister.  I did not write to the CEO or the senior staff members.  I copped it on the chin and I just kept doing my work and I worked well."[29]

  1. [41]
    He went on to say:

"I did whatever was possible not to re-agitate.  I wanted to move forward.  That was my set.... I just want to get on, do my work, let them have their pound of flesh… just carry on.  Even when Ms Hartley-Jones wrote to me in July 2013 I did not respond … because I didn't want to go back there, but I also didn't complain about it.  I tried to ignore it.

Two months afterwards I got another letter.  My response to that letter shows my attitude.  It was brief and was non-explicit.  It was simply stating, "Look I made a PID" virtually saying, "Please leave me alone."  Then I got another letter in December that I got disciplined.  That was my - my reaction. I didn't write to the Minister.  I didn't complain.  I went to QIRC and simply because the letter stated, "you have the right of appeal," and that's what I exercised.

After that did I write to the Minister?  I wrote to no one …. I kept doing my work.  My pay was reduced.  I didn't agitate anyone.  I didn't have any conflict at work.  I just kept working …. I could have complained then for reprisal, that I wasn't given senior positions even though I was entitled to it, and a number of other things that might have happened to me.  I didn't.  I didn't tell my colleagues what was going on.  I just kept doing my work."[30]

  1. [42]
    Mr Gobus would later submit that:

"It is only after … these allegations came against me in 2014 that I did go outside Queensland Health that I did approach the Anti-Discrimination Commission and I made the public interest disclosure … to the Minister, Mr Lawrence Springborg.[31]

  1. [43]
    Mr Gobus submitted that his letter to the Minister on 18 August 2014 was his last resort.[32]  After having requested conflict resolution between himself and Ms Schaeffer, and then not receiving any, he did not know where to "go to get support."[33]
  1. [44]
    Submissions were also made regarding the harshness of the decision to terminate Mr Gobus' employment.  Mr Gobus gave some evidence[34] about his financial situation and that he had been struggling to "make ends meet."[35] 

Submissions of the agency

  1. [45]
    Dr Spry, counsel for the agency, submitted that the letter sent by Mr Gobus on 18 August 2014[36] was not a PID and therefore Mr Gobus' submission that his dismissal was invalid as it was a reprisal for the making of a PID cannot stand.  Having regard to my ultimate conclusion I do not need to determine this point.
  1. [46]
    Alternatively, Dr Spry submitted that it was unnecessary to determine whether the letter of 18 August 2014, and its attachments, constituted a PID given that the unchallenged evidence was to the effect that Mr Gobus' dismissal was, not because he had made a PID (assuming for the moment that the letter of 18 August 2014 was a PID), but rather because he continued with his persistent denigration and inappropriate treatment of his colleagues, after having been warned not to do so.
  1. [47]
    Dr Spry also referred to a selection of statements made by Mr Gobus over the course of the events outlined above.  A number of these are set out below:

Mr Gobus' opinion of Mr Shaw during the 2012 recruitment process:

"[21]I suspect strongly that Mr Shaw did not want to use the meritorious selection process because he wanted to maintain control over senior vacant positions as lures for future girlfriends….

…

[62]It then dawned on me that members from the Acute Care Team had warned me that Mr Shaw is a sociopath and that he surrounds himself with persons who need him and manipulates situations to his favour."

Mr Gobus' view of Queensland Health and its attitude towards him:

"[69]The events that followed show the operation of Queensland Health as an elaborate organized network of many senior Queensland health officials who behave badly towards an employee they are displeased with.

[70]I would say that Queensland Health's organized efforts were deliberate to emotionally, psychologically, financially and even physically injure me. Deliberate because these persons are mental health professionals!

[71]The perpetrators know to provide an action in a certain manner to cause the greatest emotional trauma. These perpetrators organise, plan and scheme to deliver their traumatic package in unison.

[72]The truth is an irrelevant matter, what appears to be important to Queensland Health is to maintain the intimidation and fear campaign against the person of their displeasure.

…

[74]… since I reported the matter of official misconduct by the then Team Leader Mr Shaw and his girlfriend Ms Schaeffer I have been bullied and victimized, lied to, and ignored and unfairly accused and financially penalized based on blatant falsehoods, for the past two years and continuing to the present with unrelenting intensity.

[75]This bullying and victimization is blatant, because the persons perpetrating it blatantly lie, deceive and behave poorly without any embarrassment or hesitation, including the CEO of Queensland Health Julie Harley-Jones [sic]."

Mr Gobus' continued rejection of the appeals process stemming from the disciplinary action taken against him:

"[234]I summarized the issues for president Dr hall [sic] in this letter and this document provides a good insight into my side of the argument.  Mr Dunster also filed Queensland Health's argument which I find completely misleading….

[235]I lost the appeal, but that was only because Dr Hall was misled by Queensland health…. "

  1. [48]
    There are other examples covering much the same ground. In essence, it was submitted that Mr Gobus’ grievances, when sending the 18 August letter, with its attachments, were not confined to Ms Schaeffer but rather that they extended to the broader team in which he worked as well as a general suspicion and dislike of Queensland Health.[37]

Dismissal for an invalid reason

  1. [49]
    Unlike the position in Barclay's case,[38] where the respondent bore the onus of demonstrating that the dismissal was not for a prohibited reason, the agency bears no such onus here.  Nevertheless some of the observations of the High Court are instructive in determining whether Mr Gobus’ dismissal was for an invalid reason:

"Dr. Harvey [the decision maker] gave evidence of her reason for taking adverse action against Mr Barclay and also gave positive evidence that this was not for a prohibited reason and that she would have taken the same action against a person circulating a similar email who was not an officer of the AEU.  That evidence was accepted by the primary judge and his findings in that regard were not challenged before the Full Court [footnote omitted]."[39]

  1. [50]
    French CJ and Crennan J continued:

"The appellant discharged the burden cast upon it to show that the reason for the adverse action was not a prohibited reason, and that Mr Barclay's union position and activities were not operative factors in him being required to show cause. The appeal must be upheld and consequential orders made."[40]

  1. [51]
    The evidence of Ms Hartley-Jones, like the evidence of Dr Harvey in Barclay[41], was not challenged. Ms Hartley-Jones was a witness of credit. Accordingly, I accept Ms Hartley-Jones' evidence that:

"Mr Gobus' action in sending a letter to the minister in itself was also not a factor that I took into account in making my decision to substantiate the allegation against him." [42]

…

"The reason that I made the decision to substantiate the allegation was that Mr Gobus's behavior towards his colleagues as contained in his letter [of 18 August 2014] to the Minister was well below the standard I expect of a senior member of a professional team."[43] 

  1. [52]
    In my view, the letter of 18 August 2014 was not a PID, it was really no more than a litany of unsubstantiated allegations.  However, it is unnecessary for me to finally determine this issue because the decision leading to Mr Gobus' termination was not based upon the act of his sending the letter but upon the way in which he behaved.  Mr Gobus was not dismissed for an invalid reason within the meaning of s 73(2) of the Act.  The making of the alleged PID was not an operative factor in the decision to terminate Mr Gobus' employment.

Matters to be considered in deciding the application

  1. [53]
    The balance of Mr Gobus’ application is based upon his dismissal being harsh, unjust or unreasonable. Section 77 of the Act provides:

"77Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the

commission must consider–

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to–
  1. (i)
    the operational requirements of the employer's undertaking,

 establishment or service; or

  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or

 performance–

  1. (i)
    whether the employee had been warned about the conduct,

capacity or performance; or

  1. (ii)
    whether the employee was given an opportunity to respond

to the allegation about the conduct, capacity or performance;

and

  1. (d)
    any other matters the commission considers relevant."

 Notification of reason for dismissal

  1. [54]
    The agency informed the applicant of his dismissal via the letter dated 18 December 2014.[44]  Mr Gobus received this letter on 31 December 2014.  The delay in posting the letter was to avoid the news of his termination being delivered just before Christmas.[45]  The termination letter contained the following passages:

"…it is noted that you have received a warning that your future behaviour must, at all times, be professional and appropriate and comply with the Code of Conduct for the Queensland Public Service. I am of the belief that your behaviour has not improved since this warning, and you have continued to make repeated unsubstantiated claims regarding Queensland Health Management and employees.

As a Queensland Health employee, you occupy a position of considerable trust and responsibility. Your actions did not project the desired image of a Queensland Health employee and I no longer have trust and confidence in you.  

Having regard to the above factors, I have decided the appropriate disciplinary action to impose in this circumstances is the termination of your employment with immediate effect.  You will be paid your outstanding industrial entitlements to the date of this letter, together with pay in lieu of notice."

  1. [55]
    I am satisfied that the applicant was given notification of the reason for his dismissal. 

What the dismissal was related to

  1. [56]
    Mr Gobus’ dismissal clearly related to his conduct as an employee of the agency.

Whether there was warning or whether there was an opportunity to respond

  1. [57]
    In these circumstances it must be determined if Mr Gobus was warned about his conduct and/or, provided with an opportunity to respond to the allegation about his conduct. 
  1. [58]
    In a letter to the applicant signed 31 July 2013, Ms Hartley-Jones advised the applicant as follows:

"You are warned that your future behaviour must be, at all times, professional and appropriate and comply with the Code of Conduct for the Queensland Public Service.  You are also warned to be mindful of how your actions and comments may be perceived by others.  This warning is not considered disciplinary action however if you fail to behave professionally, appropriately and in line with the Code of Conduct for the Queensland Public Service I will take this warning into consideration in determining an appropriate course of action."

  1. [59]
    This, together with the sequence of events summarized in paragraphs 29 to 31 of this decision, demonstrates that Mr Gobus was warned about his conduct and given an opportunity to respond to the allegations against him.

Other relevant matters

  1. [60]
    Section 77(d) requires that I consider any other matters relevant to the determination of this application.  The applicant throughout the course of this matter raised a number of issues.

Late receipt of applicant’s response to final show cause letter

  1. [61]
    Mr Gobus submitted that the agency should have rescinded its decision to terminate his employment once it received his response on 19 December 2014.  In my view, the failure of the agency to rescind its letter of dismissal due to the late receipt of the applicant’s response to the agency’s final show cause letter[46] does not render the termination harsh, unjust, or unreasonable.
  1. [62]
    The allegation being spoken of was put to Mr Gobus in the agency's letter of 12 September 2014.  The following letter from the agency, dated 1 December 2014,[47] informed Mr Gobus that the allegations had been substantiated and that the termination of his employment was being considered.  As outlined above, Mr Gobus was provided 7 days, from the date of his receipt of the letter, to respond and show why his employment should not be terminated.  Although the agency’s letter was sent on 4 December 2014 and received by him on 8 December, Mr Gobus’ response[48] was not received until 19 December 2014 – outside the timeframe permitted to him - after the decision to terminate his employment had been made.  Ms Hartley-Jones said of her decision to terminate Mr Gobus’ employment:

"As I had no further information to consider regarding the appropriate disciplinary penalty, I continued to consider that termination of employment was appropriate in the circumstances for the reasons outlined above."[49]

  1. [63]
    His response, through no fault of his or of the agency, was not received until after the termination letter had been drawn and signed.  The decision had been made.  Importantly, Ms Hartley-Jones said her decision would not have changed had she received the letter before the decision was taken.[50]  In any event the response was brief and not one that reasonably could have been expected to have led to a different outcome.  Mr Gobus responded to the effect that he had made a PID and that the termination of his employment would be a reprisal, and therefore illegal, and that he had not been afforded natural justice.

The applicant's work

  1. [64]
    Mr Gobus called four witnesses who were all colleagues of his.  In effect they provided character references.  The witnesses, and their respective statements,[51] spoke generally to his work ethic and proficiency in the workplace.  I accept that Mr Gobus was an excellent worker.
  1. [65]
    Nevertheless, the matter in issue is whether Mr Gobus was unfairly dismissed.  His proficiency as a psychologist is not in issue.  Counsel for the agency submitted that the character evidence[52] did not touch on the reasons for Mr Gobus' dismissal, nor did the witnesses know much about the Mr Gobus' relationships with management.  I accept the agency’s submission that this evidence, whilst it might be relevant to the question of reinstatement, does not go to the fairness of the dismissal.

Conflict avoidance

  1. [66]
    As outlined above, Mr Gobus submitted that he had sought to cooperatively navigate his workplace conflicts.  He tendered an email conversation which, in his submission, demonstrated his wish to prevent matters escalating.[53]  I find it difficult to reconcile the purported intention of the applicant with his actions shortly thereafter.  Upon receiving notice of the complaint made by the person with whom he sought "conflict resolution", Mr Gobus chose not to assist the agency's investigation, as evidenced by his decision not to attend an interview with Mrs Buckingham.[54]
  1. [67]
    By making the decision to send the 18 August letter, with its attachments, Mr Gobus demonstrated that he was not, in fact, willing to avoid the conflict in which he was involved at work.  Rather, he continued to agitate matters which had previously been dealt with and which had been warned not to re-agitate.  I cannot accept that Mr Gobus’ alleged willingness to undergo ‘conflict resolution’ renders his dismissal harsh, unjust, or unreasonable.

Impact on the applicant’s family

  1. [68]
    Mr Gobus said that he has drawn the balance of his superannuation[55] in order to "make ends meet."[56]   I do accept that Mr Gobus has experienced financial pressure as a result of his termination.  I also note his age, the difficulty that he has encountered in finding new work,[57] and that he has two dependent children, one of whom he shares custody of with his former wife.
  1. [69]
    Ms Hartley-Jones was, seemingly, aware that Mr Gobus had children but unaware that they were dependent upon him.[58] Mr Hartley-Jones said she makes "decisions based on the interests of the service and the protection of patients and staff."[59] This attitude is reasonable. It is, ultimately, for me to consider whether a termination of employment was harsh.
  1. [70]
    In the circumstance, the matters raised by Mr Gobus do not render the termination of his employment unfair.

Conclusion

  1. [71]
    In Stark v P&O Resorts (Heron Island)[60] Chief Commissioner Hall, as he then was, wrote:

"Where… an application... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make.  Ordinarily intervention will be justified only where the employer has abused the right to dismiss.  Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immune from interference by the Commission…."

  1. [72]
    Although, I accept it is not the role of the Commission to stand in the shoes of the employer, as was said by the Federal Court in Bostik:  "a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable."[61] (emphasis added)
  1. [73]
    Considering the words 'harsh, unjust, or unreasonable' in their ordinary way and viewing the decision of the agency objectively I am unable to find that the termination of Mr Gobus’ employment was unfair.
  1. [74]
    The application is dismissed.

Footnotes

[1] Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28.

[2] Byrne v Australian Airlines Limited (1995) 185 CLR 410, 465.

[3] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259.

[4] T1-17.

[5] T1-17.

[6] Ex. A14.

[7] Ex. A13.

[8] Ex. A29.

[9] Ex. A1.

[10] Ex. A1.

[11] Ex. R6, [14].

[12] Ex. A4.

[13] Ex. A5.

[14] Ex. A2.

[15] Ex. R2.

[16] Ex. A30.

[17] Ex. A30.

[18] Ex. A6.

[19] Ex. A7.

[20] Ex. A8.

[21] Ex. A9.

[22] Mr Gobus was sent a letter formally documenting the outcome of the investigation (that the allegations had not been substantiated) on 10 September 2014 (Ex. A12).

[23] Ex. A15.

[24] T1-43.

[25] T1-45

[26] T3-22.

[27] T1-17.

[28] See: McDowell v Townsville City Council [2015] QIRC 163

[29] T3-31.

[30] T3-31.

[31] T3-38

[32] T3-38.

[33] T3-38.

[34] Ex. A31.

[35] T3-40.

[36] Ex. R1.

[37] Ex. R1.

[38] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500.

[39] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500, 524.

[40] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500, 524.

[41] Board of Bendigo Regional Institute of Technical and Further Education v Barclay and Another (2012) 248 CLR 500.

[42] Ex. R6, [46].

[43] Ex. R6, [47].

[44] Ex. A24.

[45] Ex. R6, [67].

[46] Ex. A23.

[47] Ex. A21.

[48] Ex. A23.

[49] Ex. R6, [64].

[50] Ex. R6, [70].

[51] Exs. A25, A26, A27, A28.

[52] Exs. A25, A26, A27, A28.

[53] Ex. A30.

[54] See [25] - [26].

[55] Ex. A31.

[56] T3-40. 

[57] T3-40.

[58] T2-33.

[59] T2-33.

[60] Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914, 916.

[61] (1992) 36 FCR 20, 28.

Close

Editorial Notes

  • Published Case Name:

    Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • Shortened Case Name:

    Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service)

  • MNC:

    [2016] QIRC 18

  • Court:

    QIRC

  • Judge(s):

    Deputy President Kaufman

  • Date:

    12 Feb 2016

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
Board of Bendigo Regional Institute of Technical and Further Education v Barclay (2012) 248 CLR 500
5 citations
Jump To
Cite 1 - (2012) 248 CLR 500
Cite 2 - (2012) 248 CLR 500
Cite 3 - (2012) 248 CLR 500
Cite 4 - (2012) 248 CLR 500
Cite 5 - (2012) 248 CLR 500
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
3 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Cite 3 - (1992) 36 FCR 20
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
McDowell v Townsville City Council [2015] QIRC 163
1 citation
Jump To
Cite 1 - [2015] QIRC 163
Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914
2 citations
Jump To
Cite 1 - (1993) 144 QGIG 914
Cite 2 - (1993) 144 QGIG 914

Cases Citing

Case NameFull CitationFrequency
Flanagan v State of Queensland (Department of Natural Resources, Mines and Energy) [2022] QIRC 1992 citations
Gobus v Cairns Hinterland Hospital and Health Service [2018] QCATA 1212 citations
Gobus v State of Queensland (Cairns and Hinterland Hospital and Health Service) [2016] ICQ 152 citations
Royce v Queensland [2018] QIRC 1432 citations
1

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