State of Queensland (Department of Justice and Attorney-General) v Campbell
[2018] QIRC 82
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- State of Queensland (Department of Justice and Attorney-General) v Campbell[2018] QIRC 82
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State of Queensland (Department of Justice and Attorney-General) v Campbell[2018] QIRC 82
State of Queensland (Department of Justice and Attorney-General) v Campbell[2018] QIRC 82
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | State of Queensland (Department of Justice and Attorney-General) v Campbell [2018] QIRC 082 | |
PARTIES: | State of Queensland (Department of Justice and Attorney-General) (Applicant) v Danielle Campbell (Respondent) | |
CASE NO: | B/2018/8 | |
PROCEEDING: | Application to dismiss B/2018/8 | |
DELIVERED ON: | 29 June 2018 | |
HEARING DATE: | 26 June 2018 | |
MEMBER: HEARD AT: | Vice President Linnane Brisbane | |
ORDER: | That matter B/2018/8 be dismissed as further proceedings by the Commission are not necessary or desirable in the public interest. | |
CATCHWORDS: | INDUSTRIAL LAW – Application to dismiss application for an order to stop bullying – Applicant not in the workforce – Applicant has not been in the workforce for ten months – No risk to the health and safety of the Applicant as she is not in the workplace – Application dismissed as further proceedings by the Commission are not necessary or desirable in the public interest. | |
LEGISLATION: | Industrial Relations Act 2016 s 272, s 275, s 541 | |
CASES: | Quaedvlieg v Boral Resources (Qld) Pty Ltd [2005] 180 QGIG 1209 and 1210 Francine Pritchard v Simon Blackwood (Workers’ Compensation Regulator) [2014] ICQ 002
| |
APPEARANCES: | Dr M Spry, Counsel instructed by Crown Law for the State of Queensland (Department of Justice and Attorney-General). Mr M Rawlings, Counsel instructed by Susan Moriarty & Associates for Ms Campbell. | |
Reasons for Decision
[1] This is an application by the State of Queensland (Department of Justice and Attorney-General) pursuant to s 541 of the Industrial Relations Act 2016 (Act) to dismiss matter B/2018/8. B/2018/8 is an application by Ms Danielle Campbell for an Order to stop bullying. Ms Campbell's application was filed in the Industrial Registry on 9 March 2018.
[2] Ms Campbell commenced employment with Queensland Corrective Services (Service) in or about January 2012 as a Transitions Co-ordinator at the Lotus Glen Correctional Centre. Ms Campbell sought to move back to Brisbane and took a position as a Correctional Counsellor at the Brisbane Correctional Centre where she worked for a short period before commencing employment at the Wolston Correctional Centre as a Correctional Counsellor. During the last three years of her employment with the Service, Ms Campbell states, in her application, that she has been unwell, has frequented hospital on a number of occasions and has had substantial amounts of time off work due to her disability (her physical medical conditions). Ms Campbell suffers from an autoimmune disease which has caused her to suffer many other medical conditions according to her application in B/2018/8.
[3] According to Ms Campbell's account contained in her application, in or around November 2016 her disease caused her to undergo a hysterectomy. Ms Campbell returned to work approximately four weeks after the hysterectomy in December 2016. Ms Campbell alleges that, on her return to work, she was taken off her normal duties and provided with alternate duties. I am unaware from her application, of the period of time that Ms Campbell had off work in 2016 as a result of her disease although she has indicated in her application that she had a substantial amount of time off work due to her disability. Ms Campbell alleges that she was "mortified" and pleaded with her line Manager to return her to her substantive position of Counsellor. Ms Campbell alleges that she was only returned to her substantive duties after a period of five months.
[4] The State of Queensland relied upon the material contained in its application to dismiss B/2018/8 and, in particular, the Affidavit of Peter Hollis, the Service's Director of Human Resources. The history of Ms Campbell's employment given by Mr Hollis paints a somewhat different picture of Mr Campbell's employment. The material provided by Mr Hollis was not disputed by Ms Campbell. It seems that Ms Campbell was absent from work during the period 28 September 2016 to 15 January 2017 i.e. a period of 3.5 months. It was during this period that Ms Campbell underwent the hysterectomy.
[5] Whilst the Service does not dispute that Ms Campbell sought to be returned to her substantive role upon her return to work in January 2017, the Service was concerned as to her fitness to return to her substantive role. On 13 March 2017, the Service sought further information from Ms Campbell to assist with its safe and responsible management of her and her physical medical conditions in the workplace.
[6] On or about 7 April 2017, Ms Campbell advised the Service that she would not authorise the Service to speak to her treating doctors. As I indicated during the course of the hearing of this application, the issues arising in Ms Campbell's employment with the Service as and from 7 April 2017 resulted, to a significant degree, from her failure to authorise the Service to speak with her treating doctors. It was Ms Campbell's prerogative not to authorise the Service to speak with her treating doctors but it was also the prerogative of the Service to ensure that it had sufficient medical evidence so as to not cause further detriment to Ms Campbell's health.
[7] On 21 May 2017 Ms Campbell submitted a request for reasonable adjustments in the workplace. In this request Ms Campbell listed the side effects of her physical medical conditions as follows:
- fatigue and fever;
- joint pain, stiffness and swelling;
- skin lesions;
- Raynaud's (circulation issues with extremities);
- shortness of breath;
- chest pain;
- dry eyes;
- headaches; and
- insomnia.
[8] Ms Campbell also indicated in that correspondence that she had been waitlisted to have part of her bowel removed and that this had caused her some discomfort at times. The adjustments that Ms Campbell was seeking were as follows:
- a desk that allowed her to stand when necessary;
- a 9 day full-time fortnight so that she could accommodate ongoing medical appointments; and
- the ability to start later than her normal rostered commencement time as she suffered from issues with movement in the morning and she had sleep issues that caused her fatigue and tiredness in the mornings.
[9] In her request for reasonable adjustments, Ms Campbell relied upon correspondence from her general medical practitioner. In that correspondence Dr Andre Nadler says that Ms Campbell has "severe chronic health conditions under various ongoing specialist care", that these include "an autoimmune inflammatory arthritis and complex bowel problems, that she is on long term medication" which had recently been changed, that she was struggling with "sleep secondary to pain which causes fatigue and tiredness in the mornings" and that she would benefit from a "later start at work". Further, that Ms Campbell's "abdominal pain and joint pain" would benefit from changes in position at work using a stand up desk and that she has ongoing "regular medical appointments requiring time off work".
[10] Ms Campbell also relied upon correspondence from Dr Ruth Hodgson, a Gastroenterologist at The Prince Charles Hospital, who reported that Ms Campbell suffers "from a medical condition that does cause her some discomfort at times" and that Ms Campbell can describe in more detail the "particular situates that exacerbate her discomfort" and that "standing at work" would be beneficial rather than sitting.
[11] The Service agreed to a period of "reasonable adjustment" for the period 24 July 2017 to 20 October 2017 with a review to be undertaken on 20 October 2017. This period of easonable adjustment was documented and signed by Ms Campbell on 24 July 2017.
[12] Ms Campbell has been absent from the workplace since 31 August 2017. This was notified to the Service via an e-mail from Ms Campbell on 30 August 2017 and supported by a medical certificate from her treating general medical practitioner which certified her as having a "medical condition". Ms Campbell lodged a claim for workers' compensation on 30 August 2017 alleging "depression and anxiety" arising out of workplace bullying. In the documentation provided in respect of this application, this is the first occasion that Ms Campbell is seen to suffer from "mental health medical conditions". Ms Campbell has remained absent from the workplace since the date of this e-mail.
[13] Ms Campbell apparently then visited her general medical practitioner on 27 November 2017 and was issued with a workers' compensation medical certificate by Dr Nadler. Dr Nadler certified that Ms Campbell, on 27 November 2017, was suffering from "depression and anxiety" with no capacity for work for the period 27 October 2017 to 31 August 2018 i.e. a period of ten months. On the material before me there is no evidence of Ms Campbell previously suffering from "depression and anxiety" or any mental health medical condition. Yet Dr Nadler, a general medical practitioner, certifies Ms Campbell as having no capacity for work for a ten month period because of "depression and anxiety". I find Dr Nadler's conduct in certifying Ms Campbell to be unable to perform any work for a ten month period in such circumstances to be astounding. According to the workers' compensation medical certificate, Ms Campbell, whilst suffering from depression and anxiety, was only to be reviewed again by her general medical practitioner on 31 January 2018.
[14] In a decision dated 18 January 2018, WorkCover Queensland rejected Ms Campbell's claim for workers' compensation "as the injury arose out of reasonable management action" according to Mr Hollis' Affidavit.
[15] On 5 March 2018 the Service notified Ms Campbell that it was acting under s 174 of the Public Service Act 2008 in requiring her attendance at an Independent Medical Examination (IME) to be conducted by Dr Nicholas Jetnikoff on 22 March 2018. This correspondence was signed by the Acting General Manager of Wolston Correctional Centre, Mr Alan Houchin. The direction to attend an IME was subsequently withdrawn.
[16] On 1 May 2018, Mr Peter Shaddock, the Service's Acting Deputy Commissioner, issued a direction to Ms Campbell to attend an IME to be conducted by Dr Karen Chau, Psychiatrist, on 31 May 2018. Mr Shaddock was satisfied that the conditions outlined in s 174(b) of the Public Service Act 2008 had been met. Ms Campbell had been absent from the workplace since 30 August 2017 and Mr Shaddock reasonably suspected that Ms Campbell's absence from work was caused by a mental or physical illness or disability. In this regard Mr Shaddock relied upon medical certificates, including no doubt the medical certificate from Dr Nadler dated 27 November 2017 that certified that Ms Campbell had no capacity to perform any work for a ten month period. Mr Shaddock required Ms Campbell to attend the IME relying upon s 175 of the Public Service Act 2008. Correspondence to Dr Chau dated 1 May 2018 was provided in the Service's material.
[17] On 28 May 2018 Ms Campbell lodged in the Industrial Registry a public service appeal against that decision of Mr Shaddock to require her to attend the IME on 31 May 2018.
[18] Mr Rawlings, Counsel for Ms Campbell, submitted that Ms Campbell had a prima facie case that she had been bullied by Service staff. He briefly outlined the allegations of bullying contained in Ms Campbell's application. I intend to deal with each of those allegations of bullying contained in paragraph 3 of the Written Submissions of Ms Campbell in this proceeding as follows:
• that Ms Campbell did not get paid for a period of four weeks, despite the Service indicating that there were no issues with payroll. There is no evidence that this was an ongoing issue and Ms Campbell's wages, except for an overpayment notified to Ms Campbell on 12 September 2017 which is dealt with as a separate allegation of bullying, has been paid correctly.
• that Ms Campbell returned from a period of personal leave having had a hysterectomy and was provided with administrative duties for a period of five months without being returned to her substantive position. Ms Campbell's return to her substantive role was the subject of contention from her return to work in January 2017. It must be remembered that Ms Campbell had been absent from the workplace from 28 September 2016 to 15 January 2017 which is a substantial absence from the workplace.
• there were a series of requests from Ms Campbell to return her to her substantive role "without the approval of management". I am unable to understand what "without the approval of management" means in the circumstances. I can only surmise that it refers to the fact that Service management did not approve her returning to her substantive role. In this regard Ms Campbell relies upon paragraph 4 of her application i.e. that it
"took five months and only after multiple requests from the Applicant to be placed back on the team roster and returned to her substantial [sic] position. Finally, and most importantly, there is no evidence QCS contacted Ms Campbell's Doctors to provide a list of the inherent requirements of her position, to request a reasonable return to work program, nor request a return to work program in assistance to Ms Campbell as QCS employee, constituting a further failure of their obligations."
The evidence before me is that on 13 March 2017, the Service sought further medical information from Ms Campbell to assist with its safe and responsible management of Ms Campbell and her conditions in the workplace". On or about 7 April 2017, "Ms Campbell advised QCS that she would not authorise "the Service "to speak to her treating doctors". I, once again, refer to the evidence provided by Mr Hollis that Ms Campbell refused the Service permission to speak with her treating doctors.
It must also be remembered that Ms Campbell had been absent from the workplace during the period 28 September 2016 to 15 January 2017.
Ms Campbell had sufficient opportunity to respond to Mr Hollis' sworn material prior to the hearing of this application. An Affidavit of Mr Geoffrey Taylor was filed in the Industrial Registry just prior to the commencement of this hearing. Nothing in that Affidavit called into question the statement by Mr Hollis that Ms Campbell refused to give the Service permission to contact her treating doctors.
Paragraph 4 of Ms Campbell's application raises a credit issue when the evidence is that she clearly did not give the Service permission to contact her treating doctors.
• Ms Campbell submitted a request for reasonable adjustments to accommodate for impairments, attaching supporting medical evidence. This request was submitted on 21 May 2017. As mentioned previously on 24 July 2017 Ms Campbell, her general medical practitioner, Mr Wait of RRTWC, Ms Byrne, Ms Campbell's Manager and Mr Simmons, the General Manager signed a Reasonable Adjustment Agreement.
• as Ms Campbell asserts, she was medically fit to return to her substantive role and she made many requests to return to her substantive role as a Corrections Counsellor. In this regard Ms Campbell relies upon paragraph 6 of her substantive application. Paragraph 6 provides as follows:
"On 22 June 2017, the Applicant made multiple requests over the five month period to go back to full time work as she is fit to return to her substantive position, however her requests were denied in an ad hoc meeting held on 23 June 2017. The Applicant advised the 3 other people at this ad hoc meeting – Ms Byrne (Ms Dominque Denaro, Acting Senior Psychologist and Ms Leigh Ittensohn), that she would like to reschedule the meeting with a support person. The Applicant further requested an email from Ms Leigh Ittensohn restating that her request had been declined. The e-mail was sent to the Applicant on the same day …"
I must say I have difficulty understanding paragraph 6 of Ms Campbell's application as it starts with "on 22 June 2017" and then states that Ms Campbell had made" multiple requests over a five month period". During this period the Service had sought to speak with Ms Campbell's treating doctors to assist the Service with "its safe and responsible management of Ms Campbell" and her conditions in the workplace. Ms Campbell would not authorise the Service to speak with her treating doctors. As I indicated during the course of the hearing, had Ms Campbell acceded to the Service's request, the Service may have been able to allay its fears about its responsibilities insofar as Ms Campbell is concerned. Much of what has occurred since 7 April 2017 can be traced back to Ms Campbell's failure to authorise the Service to speak with her treating doctors.
• On 23 June 2015, Ms Campbell says she forwarded an e-mail (referred to in the abovementioned dot point) to the Service's Workplace Engagement Unit. The alleged bullying is that the Manager of the Workplace Engagement Unit responded to Ms Campbell as follows:
"This has escalated way past the point where I am comfortable remaining silent. I have to take up a couple of the things I now have knowledge of to the GM because it exposes the agency and it is not in keeping with the way this agency does business.
May I please have your permission to raise the most concerning things with the GM and the executive."
Nothing in the documentation provided on this issue supports an allegation of bullying of Ms Campbell.
- Ms Campbell was invited to an agency meeting directly related to her role, and then was uninvited by her supervisor without an explanation. On 30 June 2017 Ms Ittensohn forwarded an e-mail to Ms Campbell notifying her "very sorry, the invitation to the meeting was meant for Ann". The "Ann" that is mentioned is Ann Campbell, a person with the same surname as the Applicant in the substantive application i.e. Ms Campbell. This event does not support any allegation of bullying by Ms Ittensohn against Ms Campbell. All that it shows is that Ms Ittensohn sent an invitation to the wrong Ms Campbell and on 30 June 2017 she sought to rectify the situation.
In my view Ms Campbell is clutching at straws if she perceives this e-mail as any example of bullying of her by Service employees.
• on 13 July 2015 Ms Campbell states that she was invited to a meeting with eight of the Service's management and was told that her e-mail to the Workplace Engagement Unit was being treated as a complaint. Ms Campbell alleges that she was not consulted in relation to treating her e-mail as a complaint. It is noted that, in the e-mail of the Manager of the Workplace Engagement Unit of 23 June 2015, Ms Campbell was asked for permission to raise the issues in her e-mail with the "GM and the executive". Ms Campbell's response to this is not known. This allegation of bullying is said to relate to paragraph 9 of Ms Campbell's application which provided as follows:
"On 13 July 2017 a meeting was requested by Ms Byrne regarding reasonable adjustments to the Applicant's working arrangements. Also discussed was the bullying complaint that had been submitted that was actioned without the Applicant's consent by Mr Fortescue. The Applicant had only asked him to assist her with a 9-day fortnight and progression from a PO2.6 to a PO3. There were a significant number of managers in this meeting: the Acting General Manager, the OHS officer, HR Payroll, two Senior Psychologists, the Intel Manager, the HR manager, and an administration person, the Applicant, and her support person. The Applicant felt nervous and intimidated by the number of management personnel present at the meeting."
If a complaint of bullying was made by Ms Campbell (which she admits in paragraph 9 of her application) then it was encumbant upon the person she complained to (I assume that is Mr Fortescue) to act on the complaint i.e. unless Ms Campbell withdrew that complaint. There is no evidence that Ms Campbell withdrew the complaint she made to the Workplace Engagement Unit on 23 June 2017, alleging some form of bullying behaviour by someone. Once again the issue raised in the written submission does not identify even a prima facie allegation of bullying.
I find Ms Campbell's conduct, in making a complaint of bullying against a Service employee (Mr Fortescue or any other employee), and then expect that they will not pass on the complaint to their Manager concerning. To then accuse that Service employee of bullying her by disclosing the information is more than concerning. In my view what Ms Campbell has attempted to do, is to put another Service employee's employment in jeopardy. That employee paid Ms Campbell the courtesy of informing her that he had to disclose her complaint to his supervisors. In now alleging that this employee has bullied her by disclosing the complaint, Ms Campbell has probably now made her continued employment in the Department almost impossible. If you make a complaint of bullying then you need to have the evidence to support that complaint prior to making it. Ms Campbell was prepared to make a complaint about bullying in order to have Mr Fortescue assist her in obtaining a 9 day fortnight and an increase in salary. The fact that he is required to disclose the content of that complaint then forms the basis of an allegation by Ms Campbell of bullying behaviour by Mr Fortescue.
• on 31 July 2015 Ms Campbell received an e-mail from Mr Fortescue advising of the outcome of her "Complaint of Bullying to the Workplace Engagement Unit". This allegation is contained in paragraph 10 of Ms Campbell's application. Mr Fortescue advised that her complaint did not meet the classification of workplace bullying. This response itself is now contended to be an act of bullying on the part of Mr Fortescue and/or other Service employees. It is contended that Ms Campbell was not given a further opportunity to provide evidence prior to the complaint being concluded. One would think that in making a bullying complaint, Ms Campbell would have included, in her complaint, all necessary information to substantiate the complaint. I see nothing that, prima facie, would amount to bullying by Mr Fortescue or any other employee in this aspect of Ms Campbell's application.
• on 22 August 2017 it is alleged that "without investigation or a support person present" Ms Campbell was called to a meeting to respond to allegations that another employee had made against her. It is then said that this made her feel uncomfortable and the Service's conduct was contrary to its policies. This allegation of bullying is said to relate to paragraph 11 in Ms Campbell's application. Paragraph 11 states as follows:
"On 22 August 2017, following what was initially a minor incident between the Applicant and a colleague when they were working out together as work colleagues, a complaint was made to Ms [Ann] Campbell and Ms Byrne against the Applicant. A meeting was called with Ms [Ann] Campbell, Ms Byrne, Ms Shairler, the Applicant and her support person. At the meeting the Applicant was repeatedly subjected to accusations that she had acted to 'intimidate' a colleague and the expression of feelings of the Applicant's colleague who was not even in the meeting, nor was a copy or evidence of any complaint provided to the Applicant. The Applicant refutes these undetailed accusations and believes them to have been fabricated. (Is this all factually correct and complete?)"
I do not know what the reference is to the last statement in paragraph 11. As for the allegation contained in the written submission in the current application, Ms Campbell did have a support person present if paragraph 11 of her application is correct. Once again the Service received a complaint from another employee. The complaint was directed against Ms Campbell. Ms Campbell acknowledges that there was a "minor incident between" the two. It is appropriate that the Service gave Ms Campbell the opportunity to respond (with a support person) at an early time instead of sending the matter to its Ethical Standards Unit. I suspect that the complaint has not been fully investigated given that Ms Campbell has not returned to work since 31 August 2017 and this meeting occurred on 22 August 2017. No aspect of bullying is contained in the material filed in support of either application.
• the next allegation of bullying raised in this current hearing is that the Service, in correspondence dated 12 September 2017, advised Ms Campbell that she had received an overpayment of wages. This correspondence was forwarded to Ms Campbell from Ms Annette Witt, the Manager – Overpayments, Queensland Shared Services in the Department of Science, Information Technology and Innovation. It was not forwarded to Ms Campbell from the Service. The two Departments are quite separate.
This correspondence stated that the overpayment had been generated in the pay period ending 17 September 2017 due to the late advice and insufficient leave available to Ms Campbell for 1 August 2017, 15 August 2017 and 25 August 2017 to 30 August 2017. The amount of the overpayment was said to be $815.70.
Ms Campbell was advised that she was paid otherwise than in accordance with the relevant industrial instruments and that the payment of $815.70 was thus unauthorised. Ms Witt attached a Declaration and Repayment Agreement which listed options available to Ms Campbell for repayment of that amount.
It is obvious that Ms Campbell has not signed any repayment contract. The Service is not responsible for the payment of wages to Ms Campbell. The Department responsible for the payment of Ms Campbell's wages is the Shared Service agency within the Department of Science, Information Technology and Innovation. It is obvious that, as soon as Queensland Shared Services became aware of the overpayment that the Department of Science, Information Technology and Innovation sought repayment of that amount from Ms Campbell. The Service did not seek the repayment of those monies from Ms Campbell. Ms Campbell had obviously applied for paid leave that she was not entitled to.
It is most appropriate that Queensland Shared Services attempt to recover any overpayment in wages of government employees as soon as it becomes aware of the overpayment. The overpayment is public monies and Ms Campbell was not entitled to the payment of $815.70 that she had received. There is no aspect of bullying whatsoever in circumstances where a different Department from Ms Campbell's employer (and the Respondent to her bullying application) seeks to recover public monies.
• the next allegation of bullying is that Ms Campbell on 5 March 2018 received a direction to attend an IME which did not meet the requirements of the Public Service Commission Guidelines. The Service withdrew this direction. There is no aspect of bullying in the Service issuing a direction to attend an IME on 5 March 2018 and then when the Service was made aware that the direction did not meet the requirements of the Public Service Commission Guidelines, the Service withdrew its direction. There is no aspect of bullying in this allegation.
• the next allegation of bullying relied upon by Ms Campbell is that on 9 March 2018 she filed an Application in the Industrial Registry for an Order to Stop Bullying. This cannot form an allegation of bullying by the Service.
[19] In my view Ms Campbell has not shown any prima facie case sufficient to support a bullying application. As mentioned previously had Ms Campbell authorised the Service to make contact with her treating doctors then much of her issues with the Service would have been dealt with at that time. Whilst this aspect of Ms Campbell's claim in B/2018/8 is not required to make a determination of the State of Queensland's application to dismiss B/2018/8, I have dealt with Ms Campbell's allegations of bullying in detail to indicate my view that she does not have a prima facie argument of bullying in the workplace against the Service.
Legislative Provisions
[20] Section 541(b) of the Act provides as follows:
"541 Decisions generally
The court or commission may, in an industrial cause do any of the following -
…
- (b)dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
- (i)the cause is trivial; or
- (ii)further proceedings by the court or commission are not necessary or desirable in the public interest;
…"
Section 272 of the Act provides as follows:
"272 When is an employee bullied in the workplace
- (1)An employee is bullied in the workplace if -
- (a)while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards -
- (i)the employee; or
- (ii)a group of employees of which the employee is a member; and
- (b)that behaviour creates a risk to the health and safety of the employee.
Note -
For the meaning of employee for this chapter, see section 8 (2).
- (2)To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner."
Section 275 of the Act provides as follows:
"275 Commission may make orders to stop bullying
- (1)This section applies if -
- (a)an employee has made an application under section 273; and
- (b)the commission is satisfied that -
- (i)the employee has been bullied in the workplace; and
- (ii)there is a risk that the employee will continue to be bullied in the workplace.
- (2)The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace.
- (3)In considering the terms of an order, the commission must take into account -
- (a)if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity - those outcomes; and
- (b)if the commission is aware of any procedure available to the employee to resolve grievances or disputes - that procedure; and
- (c)if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes - those outcomes; and
- (d)any other matter the commission considers relevant."
Analysis
[21] The State of Queensland (Department of Justice and Attorney-General) seeks to have Ms Campbell's application for an order to stop bullying (B/2018/8) dismissed on the basis that the Commission is restricted to making the orders established by the legislation. Dr Spry contends that s 272 requires that an employee be bullied in the workplace whilst the employee is at work. Ms Campbell is not at work and therefore she is not "in the workplace" and has not been "in the workplace" since 31 August 2017 i.e. for almost a ten month period.
[22] Further, s 272 of the Act not only requires that the employee be at work but also requires that "an individual or group of individuals repeatedly behaves unreasonably towards" the employee or a group of employees of which the employee is a member, and that behaviour creates a risk to the health and safety of the employee. Section 272(2) of the Act then provides that to remove any doubt, it is declared that s 272(1) "does not apply to reasonable management action carried out in a reasonable manner".
[23] In terms of s 275 of the Act, Dr Spry, Counsel for the State of Queensland, submitted that prior to the making of any order, the Commission must be satisfied as follows:
- that an application has been made under s 273 of the Act. This is conceded by the State of Queensland;
- that Ms Campbell has been bullied in the workplace. This the State of Queensland does not concede; and
- that there is a risk that Ms Campbell will continue to be bullied in the workplace.
[24] Dr Spry asserts that this last element does not meet the statutory test i.e. that the conduct is ongoing, that the bullying conduct is ongoing and continuing and that there is a risk that it will continue unless orders are made by the Commission. That, according to the State of Queensland, is made clear by s 275(2) of the Act. Throughout the provisions of the Act dealing with bullying the term "in the workplace" is regularly used.
[25] Dr Spry submitted that the provisions in the Act are narrower than the provisions on bullying in the Fair Work Act as the federal provisions concern bullying "whilst at work" whereas the Queensland provisions deal with bullying "in the workplace". Further, the State of Queensland submits that s 275(1)(b)(ii) of the Act is also important i.e. there must be a risk that the employee will continue to be bullied in the workplace.
[26] On its face, Ms Campbell's application in B/2018/8 does not meet the statutory test. I was asked by Dr Spry to assume that Ms Campbell was in fact bullied in the workplace. The last date where Ms Campbell alleges that she was subject to bullying behaviour is 22 August 2017. Ms Campbell went on sick leave as and from 31 August 2017. The Applicant has not been "in the workplace" since that time.
[27] Whilst Ms Campbell does not now rely upon the direction to her to attend an IME, the first such direction was given on 5 March 2018 and her application to stop bullying was filed in the Industrial Registry on 9 March 2018. Whilst this direction was subsequently revoked, Ms Campbell was, on 29 March 2018, advised that the Service required a medical clearance from her treating doctor or an authority to speak with her treating doctor, if she sought to return to work earlier than her current period of incapacity. Ms Campbell was further advised that, if the medical clearance was not forthcoming, the Service would require Ms Campbell to attend a further IME.
[28] Ms Campbell submitted a request for a return to work plan form on 30 April 2018. Ms Campbell provided no medical clearance from her treating doctor and nor did she authorise the service to speak with her treating doctor. On 8 May 2018 Ms Campbell received further correspondence requiring her to attend an IME with Dr Chau, Psychiatrist. Solicitors for Ms Campbell then issued correspondence to the Service requesting a suspension of the appointment with Dr Chau as Ms Campbell would be either "prepping for surgery" or "recovering from surgery" on the date of the appointment with Dr Chau. As I understand the position no such surgery was performed on Ms Campbell. Dr Chau was advised by Ms Campbell's representatives in correspondence dated 23 May 2018 that Ms Campbell would not be attending the IME. Ms Campbell was requested, in correspondence dated 25 May 2018, to provide medical evidence in relation to the surgery referred to in the e-mail of 9 May 2018 and her fitness to attend the IME on 31 May 2018.
[29] The Service was advised on 28 May 2018 that Ms Campbell's doctor had determined to explore treatment options other than surgery and requested that the IME on 31 May 2018 be suspended to "avoid the stress historically associated" with attendance at an IME. Ms Campbell filed a Public Service Appeal on 31 May 2018 against the decision to direct her to attend an IME. Ms Campbell has left the Service with no other option other than to require her to attend an IME.
[30] On 27 November 2017 Ms Campbell's treating doctor certified that she had no capacity for any type of work from 27 October 2017 to 31 August 2018 because of a diagnosis of depression and anxiety. On the material provided in this application, the requirements of Part 7 of the Public Service Act 2008 have been met given that Ms Campbell has been absent from the workplace since 31 August 2017. Any Manager of Ms Campbell would reasonably suspect that Ms Campbell's absence from duty since 31 August 2017 has been caused by a mental or physical illness or disability. This is particularly so when one considers the medical certificates issued by her general medical practitioner.
[31] Whilst Ms Campbell did not, in this application, pursue her allegation that the requirement for her to attend an IME was a form of bullying, no government employee could expect not to have to attend an IME to confirm their ability to undertake the requirements of their substantive position within the Queensland public service in the circumstances in which Ms Campbell finds herself. The purpose of an IME is to ascertain whether Ms Campbell can perform the duties of her substantive position and/or whether she needs reasonable adjustment to enable her to perform those duties. Attendance at an IME is as Dr Spry submitted, preparatory to doing any work and does not meet the tests established in s 272 of the Act. Ms Campbell is not in the workplace and has not been in the workplace since 31 August 2017.
[32] The State of Queensland submits that no allegation of bullying in Ms Campbell's application is ongoing – they have all ceased and they are not continuing because Ms Campbell has not been at work since 31 August 2017. The last allegation of bullying relied upon by Ms Campbell is the overpayment correspondence on 12 September 2017 i.e. correspondence received from a different Department to the Service seeking repayment of monies overpaid to her in September 2017. This has nothing to do with the conduct of the Service which is the Respondent to her bullying application in B/2018/8.
[33] Ms Campbell did not address the issues raised by the State of Queensland in respect of ss 272 and 275 of the Act. Instead Counsel for Ms Campbell relied upon the provisions of s 541(b) of the Act and the Commission's discretion to discontinue an action when further proceedings are not in the public interest. In this regard reliance was placed on the decision of Hall P in Quaedvlieg v Boral Resources (Qld) Pty Ltd[1]:
"There is now a consciousness of the need for some level of efficiency in the use of the courts as a public resource. That, of course, must not displace the need for reasonable access to the courts and the provision of justice according to law in each matter, but it highlights the fact that the former laissez faire attitude by courts towards the leisurely conduct of actions at the will of the parties has ended.
At the same time the rules of court are not an end in themselves. They do not exist for the discipline of practitioners or clients, or for the protection of courts from inefficient litigants, but rather as a means of ensuring that issues will be defined in an orderly way and that parties have the opportunity of full preparation of their case before the trial commences. The rules also afford defendants the means of bringing to an end actions in which the other party will not abide by the rules."
[34] Mr Rawlings submitted that this approach was followed by the Industrial Court of Queensland in Francine Pritchard v Simon Blackwood (Workers' Compensation Regulator)[2], and by the Queensland Industrial Relations Commission in Allan v State of Queensland[3]. Mr Rawlings submitted that the Commission should consider the following:
- the nature of the remedy, as a preventative measure rather than remedial orders and the declarative nature of the remedy;
- the nature and purpose of the Stop Bullying Order is to support on-going employment;
- the period and nature of conduct alleged in the application is reasonably particularised, and capable of reasoned response;
- the determination of the Commission is likely to resolve the dispute for the betterment of the parties on-going employment;
- the statutory standard to make an application is Ms Campbell's "reasonable belief that the Service has been bullied". I assume this submission is that Ms Campbell has a reasonable belief that the Service has bullied her;
- the alleged conduct, if substantiated, would reflect a break-down in compliant management processes, meaning a decision of the Commission may result in the Service improving existing processes; and
- the current proceedings do not impact on the on-going management of Ms Campbell's employment, as current medical evidence indicates that she will be fit to return to work in September 2018. There is no evidence of this before me.
[35] Ms Campbell's application in B/2018/8 is not an application concerning a dispute where general provisions of the Act may apply. Ms Campbell's application is a specific application and the Commission has been given specific power to deal with such applications. The role of the Commission in s 275 of the Act is to make orders provided the two aspects of s 275(1) of the Act have been met i.e. that Ms Campbell has made an application under s 273 of the Act and the Commission is satisfied that Ms Campbell has been bullied in the workplace and there is a risk that Ms Campbell will continue to be bullied in the workplace.
[36] Whilst it is accepted that Ms Campbell has made an application under s 273 of the Act there is no evidence whatsoever that Ms Campbell is at risk of a continuation of any bullying in the workplace. Whilst I have formed the view that the allegations of bullying raised in B/2018/8 do not have much substance and that the actions of Service management would appear to meet the reasonable management action carried out in a reasonable manner test in s 272(2) of the Act, I do not rely in my determination on this aspect of s 275 of the Act.
Conclusion
[37] The submission by Dr Spry concerning the effect of s 272 of the Act has substantial merit. Ms Campbell has not been in the Service's workplace since 31 August 2017. There is no risk to her health and safety at this time or at the time she filed her application in B/2018/8. Thus the requirement found in s 272(1)(b) of the Act has not been met.
[38] As for s 275 of the Act, before any order to stop bulling can be made by the Commission, the Commission must be satisfied that Ms Campbell "has been bullied in the workplace" and that there is a "risk" that Ms Campbell "will continue to be bullied in the workplace". There was no risk of Ms Campbell being bullied in the workplace when she filed her application in B/2018/8 on 9 March 2018 as she was in receipt of a medical certificate that stated that she had no capacity for any work until, at the earliest, 31 August 2018. Similarly there is no risk of Ms Campbell being bullied in the workplace at the current time because she continues to be absent from the workplace under the medical certificate issued by Dr Nadler on 27 November 2017.
[39] The exercise my discretion and dismiss B/2018/8 under s 541(b) of the Act. In circumstances where Ms Campbell has not met the requirement of s 272 and where s 275 could not be utilised to grant her the relief that she seeks, I do find that application B/2018/8 should be dismissed and that further hearing of the application and/or deciding the application is not necessary or desirable in the public interest. Ms Campbell cannot succeed in her application in B/2018/8.
[40] In those circumstances I dismiss B/2018/8 as further proceedings in the matter are not necessary or desirable in the public interest.
[41] I therefore issue the following order:
That matter B/2018/8 be dismissed as further proceedings by the Commission are not necessary or desirable in the public interest.
I certify that the preceding forty-one paragraphs are a true copy of the Reasons for Decision of Vice President Linnane.
D.M. Linnane, Vice President
Dated: 29 June 2018