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Tyquin v Metro North Hospital and Health Service[2019] QIRC 197

Tyquin v Metro North Hospital and Health Service[2019] QIRC 197

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Tyquin v Metro North Hospital and Health Service [2019] QIRC 197

PARTIES: 

Tyquin, Megan

(Applicant)

v

Metro North Hospital and Health Service

(Respondent)

CASE NOS:

B/2019/56

PROCEEDING:

Application for an order to stop bullying

DELIVERED ON:

16 December 2019

HEARING DATES:

16 December 2019

MEMBER:

HEARD AT:

Merrell DP

Brisbane

ORDER:

The Applicant's application for disclosure is dismissed.

CATCHWORDS:

INDUSTRIAL LAW - application for an order to stop bullying - application in existing proceedings for disclosure - whether application for disclosure should be made when substantive proceeding adjourned by consent

LEGISLATION:

Industrial Relations Act 2016 (Qld) s 272, s 273, s 274, s 275 and s 536

Industrial Relations (Tribunals) Rules 2011 (Qld) r 41 and r 46

Fair Work Act 2009 (Cth) s 789FF

Uniform Civil Procedure Rules 1999 (Qld) Ch7, pt 2

CASES:

MitchellShaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408

Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4) [2016] QIRC 75

Mr K. Johnson of Bluekey Lawyers for the Applicant

APPEARANCES:

Mr P. Sparrow for the Respondent

Reasons for Decision

Introduction

  1. [1]
    Ms Megan Tyquin is employed by Metro North Hospital and Health Service ('the Health Service') as an Administration Officer, classification AO3, in the Quality, Innovation and Patient Safety Service at the Royal Brisbane and Women's Hospital ('the Hospital').
  1. [2]
    On 10 September 2019, Ms Tyquin, pursuant to s 273 of the Industrial Relations Act 2016 ('the Act'), filed an application for an order to stop bullying ('the bullying application').  Attached to the bullying application was an affidavit from Ms Tyquin sworn on 10 September 2019.  In that affidavit, Ms Tyquin relevantly states that:
  • she has submitted three formal complaints of bullying by a colleague of hers and that 'management' has done nothing to resolve the situation;
  • she has been physically intimidated and verbally abused over the past year and a half which has put her under significant stress, and that this conduct included:
  1. being intimidated into signing a document she describes as 'an EMF' which relinquished her position before she could seek union advice;
  2. being physically intimidated by having the work colleague she names in her affidavit standing within her personal space and making derogatory comments about her and her husband;
  3. having files thrown down next to her on her desk scaring her while she focused on work;
  4. being called derogatory names; and
  5. being verbally abused;
  • despite having applied for and been successful in getting two other temporary jobs, her requests to take up those opportunities were denied;
  • she has unsuccessfully requested that she be transferred to another unit within the Hospital;
  • the behaviour is ongoing and her health is continuing to suffer because of the stress she is under from that working environment; and
  • she has been subject to disciplinary proceedings since 27 May 2019 and she has been subject to a Performance Improvement Plan since November 2018, both of which, because of their protracted nature, have caused her significant stress.
  1. [3]
    On 29 October 2019, Ms Tyquin filed an application in existing proceedings seeking disclosure of a particular document ('the disclosure application'). The details of the decision sought in the disclosure application are:
  1. That by way of disclosure in this proceeding, the respondent produce to the applicant herein a log of activity within the respondent's computer systems (including email) which was based upon or involved use of the applicant's credentials on 4 September 2019 from 3.45 to 6 pm local time;
  1. Such further or other direction as the commission may seem meet.
  1. [4]
    Accompanying the disclosure application was a further affidavit from Ms Tyquin in which she relevantly states:
  • she believes that the co-worker named in her bullying application had accessed her email account and possibly other Queensland Health systems by inputting her information technology credentials, or after she had inadvertently failed to log off on 4 September 2019;
  • she seeks disclosure of a 'log of activity accordingly';
  • she had made a complaint about this matter internally within Queensland Health and has made the cybersecurity section aware of the situation under a formally logged job;
  • she is informed that the matter is under investigation but she is not aware that production of the activity log would tend to prejudice the investigation;
  • she has already given her employer all information she has that is relevant so far as she knows and she is unaware of anything that would appear in the log which would tend to prejudice or be contrary to her employer's '… confidentiality obligations to any third party';
  • she has no objection to the deletion of any information in the log, the disclosure of which would prejudice the interests of other persons; and
  • her husband, who is a solicitor, has written on three occasions to the Acting Manager of Employee Relations about production of the log and has not had any definite indication as to whether and when '…the respondent will give me this disclosure'.
  1. [5]
    I heard the disclosure application today. 
  1. [6]
    At the hearing, both parties indicated that the bullying application had been the subject of conciliation conferences before Industrial Commissioner Pidgeon in September, October and November 2019 and that, as a consequence of that process, the bullying application had, by consent, been adjourned.
  1. [7]
    I was also informed by the Health Service that Ms Tyquin is currently working at the Hospital in the Quality, Innovation and Patient Safety Service and but in a different 'pod' and that her duties had been re-arranged.
  1. [8]
    The Health Service does not seem to dispute that the log of activity is a document that exists and is in its possession due to its investigation of Ms Tyquin's further allegation of the misuse of her email; however, it will not voluntarily provide it to Ms Tyquin for a number of reasons, including that its investigation may be prejudiced by providing access to the log of activity to Ms Tyquin. 
  1. [9]
    In my view, after having heard the parties, Ms Tyquin's application seems to be, in reality, an application to inspect and copy the log of activity.
  1. [10]
    The question for my determination is whether, having regard to all relevant circumstances, I should make the order sought by Ms Tyquin.
  1. [11]
    In my view, Ms Tyquin's disclosure application should be dismissed. 
  1. [12]
    My reasons follow.

The relevant legislative provisions

The Act

The workplace bullying provisions in the Act

  1. [13]
    Chapter 7 of the Act deals with employees bullied in the workplace.  Section 272 of the Act provides:

272 When is an employee bullied in the workplace 

  1. (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).

  1. (2)
    To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner.
  1. [14]
    Section 273 of the Act provides that an employee who reasonably believes the employee has been bullied in the workplace may apply to the Commission for an order under s 275.
  1. [15]
    Section 274 of the Act provides that the Commission must start to deal with an application under s 273 within 14 days after the application is made.  The note to that section provides that the Commission may, for example, decide to hold a conference or conduct a hearing about the matter.
  1. [16]
    Section 275 of the Act provides:

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.

  1. (3)
    In considering the terms of an order, the commission must take into account-
  1. (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
  1. (b)
    if the commission is aware of any procedure available to the employee to resolve grievances or disputes—that procedure; and
  1. (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.

  1. [17]
    Chapter 7 of the Act was enacted following the December 2015 report of the Industrial Relations Legislative Reform Reference Group which reviewed the industrial relations framework in Queensland.  Recommendation 32 of that Reference Group was that employees be given access to an anti-bullying jurisdiction, through the Queensland Industrial Relations Commission, similar to that as provided through the Fair Work Commission.[1]
  1. [18]
    It is obvious, from the terms of s 275(1)(b)(ii) of the Act, that for the Commission's discretion to be enlivened to make an order to prevent the employee from being bullied in the workplace, the Commission must be satisfied that there is a risk that the employee will continue to be bullied in the workplace. 
  1. [19]
    Such a construction has been confirmed by the Fair Work Commission in the equivalent provision in s 789FF(1)(b)(ii) of the Fair Work Act 2009.[2]

The Act's provisions about disclosure

  1. [20]
    Section 536 of the Act deals with interlocutory proceedings. 
  1. [21]
    That section relevantly provides that for conducting proceedings under the Act, the Commission may make orders or give directions the Commission considers just and necessary in relation to interlocutory matters to be taken 'before the hearing of the proceedings' and that includes matters about discovery.[3]

The Industrial Relations (Tribunals) Rules 2011

  1. [22]
    Rule 41(1) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules') relevantly provides that the Commission may make a directions order about the conduct of the proceeding on the application of a party or on the initiative of the Commission.  Rule 41(2)(o) provides that a directions order may relate to requiring disclosure of documents and r 41(2)(p) provides that a directions order may relate to requiring inspection of documents.
  1. [23]
    Rule 46 of the Rules deals with a party's duty of disclosure and provides:

(1)  If a directions order requiring disclosure of documents is made, a party must disclose any document that—

(a) is relevant to the proceeding or a matter in issue in the proceeding; and

(b)  is in, or comes into, the possession of the party.

(2)  A party must act under subrule (1) until the proceeding is concluded or the matter in issue is admitted, withdrawn, struck out or otherwise disposed of.

(3)  Subrule (1) does not apply to a document in relation to which there is a valid claim to privilege from disclosure.

  1. [24]
    It is immediately apparent that, unlike ch 7, pt 2 of the Uniform Civil Procedure Rules 1999 (Qld), which confers a duty on each party to disclose each document in the possession or under control of the party and directly relevant to an allegation in issue in the pleadings or directly relevant to a matter in issue in the proceeding, a party's duty of disclosure under s 536 of the Act or under r 46 of the Rules only arises if an order is made by the Commission.
  1. [25]
    The scope of rr 41 and 46 was reviewed in Weston and Parer v State of Queensland (Department of Justice and Attorney General) (No 4)[4] where Commissioner Fisher relevantly stated:
  1. [4]
    The case law relating to disclosure establishes a number of principles including the following which are relevant to the task confronting the Commission:
  • A decision of the Commission to order disclosure is a quintessential exercise of discretion.
  • To be discoverable a document must relate to the question or issues to be decided by the proceedings.
  • A document is relevant if it contains information which enables the party calling for production of the document to advance its own case or damage the case of their adversary or it is a document which may fairly lead to a train of enquiry which may have either of those consequences.
  • A party will not be required to produce documents where to do so would be oppressive.
  • A request for disclosure must not be in the nature of a fishing expedition in the sense that it is an endeavour not to obtain evidence to support a case but to discover whether there is a case at all.
  • Orders for disclosure should not be made for the purpose of enabling a party to attack credibility.[5]

Ms Tyquin's submissions

  1. [26]
    Ms Tyquin, in summary, submitted that:
  • the disclosure application arose as an emergent matter concerning the use of her work email;
  • she did not seek general disclosure; and
  • the log of activity is one which may be useful to advance her case.

The Health Service's submissions

  1. [27]
    The Health Service' submissions included a detailed chronology of the relevant events that led to the disclosure application.
  1. [28]
    The Health Service submitted, amongst other matters, that disclosure should not be ordered because, due to the parties' consent to adjourn the bullying application, that application was not being progressed before the Commission and, as such, no prejudice would be suffered by Ms Tyquin in not making the disclosure order sought.
  1. [29]
    In reply, Ms Tyquin relevantly submitted that the bullying application had not been stayed but, in effect, adjourned to Industrial Commissioner Pidgeon's chambers.

This is not a case where the Commission should exercise its discretion and make a disclosure order

  1. [30]
    I am not persuaded by Ms Tyquin's submissions.
  1. [31]
    There are two reasons for this.
  1. [32]
    First, due to the parties' consent, the bullying application has been adjourned and is not presently progressing to any hearing for orders under s 275 of the Act.
  1. [33]
    Secondly, from what I have been informed by the Health Service, which was not disputed by Ms Tyquin, she is currently working in the Quality, Innovation and Patient Safety Service at the Hospital in accordance with agreements reached arising out of the conciliation conferences held by Industrial Commissioner Pidgeon. That is, there is no immediate claim by Ms Tyquin that there is a risk she will continue to be bullied in the workplace.
  1. [34]
    Because there is presently no question or issue to be decided by the proceedings commenced by Ms Tyquin, there is no basis for me to exercise my discretion and make a directions order requiring disclosure or inspection of any document, let alone the log of activity.

Conclusion

  1. [35]
    For the reasons given above, Ms Tyquin's application for disclosure is dismissed.

Footnotes

[1] Industrial Relations Legislative Reform Reference Group, A Review of the Industrial Relations Framework in Queensland, (Report dated December 2015) 85-87.

[2]MitchellShaw v Australia and New Zealand Banking Group Limited T/A ANZ Bank; Bianca Haines [2014] FWC 3408, [15] (Deputy President Gostencnik).

[3]Industrial Relations Act 2016 , s 536(f).

[4] [2016] QIRC 75 ('Weston').

[5]Weston (n 4) (citations omitted) (emphasis added).

Close

Editorial Notes

  • Published Case Name:

    Tyquin v Metro North Hospital and Health Service

  • Shortened Case Name:

    Tyquin v Metro North Hospital and Health Service

  • MNC:

    [2019] QIRC 197

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    16 Dec 2019

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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