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Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service[2019] QIRC 72

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service[2019] QIRC 72

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service [2019] QIRC 072

PARTIES:

Queensland Nurses and Midwives' Union of Employees

(Applicant)

v

West Moreton Hospital and Health Service

(First Respondent)

CASE NO:

GP/2018/29 and GP/2019/3

PROCEEDING:

General Protections 

DELIVERED ON:

HEARING DATES:

27 May 2019

18 April 2019

26 April 2019

10 May 2019

14 May 2019

MEMBER:

Black IC

HEARD AT:

Brisbane

ORDER:

1.That the West Moreton Hospital and Health Service is restrained until the hearing and determination of Matter number GP/2018/29 and Matter number GP/2019/3, or until further order, from continuing with the health service investigation into allegations against Tanja Mattner.

CATCHWORDS:

INDUSTRIAL RELATIONS ACT 2016 – General Protections – application for interlocutory orders – principles to be applied – application of s 26(3) of the Public Service Act 2008 considered.

LEGISLATION:

CASES:

Industrial Relations Act 2016 (Qld) s 280, s 282, s 284, s 285, s 290, s 291, s 305, s 306, s 314.

Public Service Act 2008 s 26.

Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57

APPEARANCES:

Mr L S Reidy, Counsel, for the applicant, directly instructed

Mr A Herbert, Counsel, for the respondent, instructed by McCullough Robertson Lawyers.

Decision

The Application

  1. [1]
    The Queensland Nurses & Midwives' Union of Employees (QNMU) lodged an application on 10 December 2018 pursuant to the general protections provisions of the Industrial Relations Act 2016 (IR Act). The application relates to actions taken against Ms Tanja Mattner by her employer, the West Moreton Hospital and Health Service (the health service). The QNMU has applied for orders against the health service and against three individual respondents, Ms Finley, Ms Giles, and Ms Curtis.
  1. [2]
    An amended application, which was filed by the QNMU on 25 February 2019, alleged that the health service took unlawful adverse action against Ms Mattner in 19 instances and sought a range of orders and injunctions. In submissions, the QNMU broadly categorised the adverse action as:
  • The suspension of Ms Mattner from her position and the direction that she perform alternative duties at the Ipswich General Hospital;
  • The requirement on Ms Mattner to show cause why she should not be disciplined in accordance with s 187 of the PS Act; and
  • The requirement that Ms Mattner participate in a workplace investigation concerning her workplace behaviour and clinical care following the receipt of allegations against her.

Interlocutory proceedings

  1. [3]
    An application for interlocutory orders was filed on 20 March 2019. While the application as filed sought three orders, during the interlocutory proceedings the QNMU  announced that it was pursuing the following two orders:
  1. (i)
    Until the hearing or determination of Matter number GP/2018/29 and Matter number GP/2019/3 or until further order, the West Moreton Hospital and Health Service be restrained by itself or its servants or agents including Verifact Pty Ltd from continuing with the health service investigation into allegations against Tanja Mattner;
  1. (ii)
    Until the hearing or determination of Matter number GP/2018/29 and Matter number GP/2019/3 or until further order, the West Moreton Hospital and Health Service be restrained by itself or its servants or agents from temporarily transferring Tanja Mattner to any position other than her substantive position of Clinical Nurse at Wolston Park Correctional Centre without the consent of Tanja Mattner.

Legislation

  1. [4]
    The QNMU alleged that the respondents had contravened s 285 and s 291 of the IR Act in that they had taken adverse action against Ms Mattner for exercising a workplace right or taking part in an industrial activity.
  1. [5]
    Under the legislative scheme, to establish a breach of s 285 of the IR Act, the following three elements need to be satisfied:
  1. (i)
    That Ms Mattner had exercised a workplace right or engaged in an industrial activity;
  1. (ii)
    That there has been adverse action; and
  1. (iii)
    That the adverse action was taken because Ms Mattner had exercised a workplace right or engaged in an industrial activity.
  1. [6]
    While it was not in dispute that adverse action had been taken against Ms Mattner, the respondents denied that adverse action had been taken because workplace rights had been exercised, or industrial activities had been engaged in, by Ms Mattner.
  1. [7]
    The matters in dispute in the substantive proceedings include:
  1. (a)
    Whether adverse action was taken because of the exercise of aworkplace right or engagement in industrial activity;
  2. (b)
    Whether the suspension and/or transfer of Ms Mattner was lawful and complied with the provisions of the Public Service Act 2008 (PS Act); and
  3. (c)
    Whether s 282(6) of the IR Act acts as a bar to the application for a general protections order in circumstances where the decision maker was considered to be acting consistent with s 26(3) of the PS Act.

Interlocutory injunction

  1. [8]
    The test to be applied when considering whether to grant an interlocutory injunction is prescribed in ABC v O'Neill[1] where Gummow and Hayne JJ said:

[65]  The relevant principles in Australia are those explained in Beecham Group Ltd v Bristol Laboratories Pty Ltd. This Court (Kitto, Taylor, Menzies and Owen JJ) said that on such applications the court addresses itself to two main inquiries and continued:

'The first is whether the plaintiff has made out a prima facie case, in the sense that if the evidence remains as it is there is a probability that at the trial of the action the plaintiff will be held entitled to relief … The second inquiry is … whether the inconvenience or injury which the plaintiff would be likely to suffer if an injunction were refused outweighs or is outweighed by the injury which the defendant would suffer if an injunction were granted.'

By using the phrase “prima facie case”, their Honours did not mean that the plaintiff must show that it is more probable than not that at trial the plaintiff will succeed; it is sufficient that the plaintiff show a sufficient likelihood of success to justify in the circumstances the preservation of the status quo pending the trial. That this was the sense in which the Court was referring to the notion of a prima facie case is apparent from an observation to that effect made by Kitto J in the course of argument. With reference to the first inquiry, the Court continued, in a statement of central importance for this appeal:

'How strong the probability needs to be depends, no doubt, upon the nature of the rights [the plaintiff] asserts and the practical consequences likely to flow from the order he seeks.'

The evidence as it is

  1. [9]
    Eleven affidavits were filed by the QNMU and ten affidavits were filed by the respondents. The QNMU sought and was granted permission to cross-examine Ms Curtis.

QNMU Affidavits

Date

Tanja Mattner

10 Dec 2018

Tanja Mattner

18 April 2019

Teresa Chase

10 Dec 2018

Veronica Therese Semple

25 Feb 2019

Veronica Therese Semple

20 March 2019

Veronica Therese Semple

15 April 2019

Veronica Therese Semple

18 April 2019

Veronica Therese Semple

23 April 2019

Veronica Therese Semple

9 May 2019

Sally Anne Higgs

16 April 2019

Rachael Ashley-Butler

18 April 2019

Respondent's Affidavits

Date

Yvonne Prince

13 December 2018

Yvonne Prince

4 March 2019

Yvonne Prince

16 April 2019

Yvonne Prince

24 April 2019

Yolanda Suarez

16 April 2019

Bretine Curtis

18 April 2019

Bretine Curtis

24 April 2019

Suzanna Trayling

24 April 2019

Dr Robyn Henderson

24 April 2019

Cara-Lee Bradley

8 May 2019

Industrial activity

  1. [10]
    In her affidavit, Ms Higgs said that in early October 2018 she had received complaints from members employed at Wolston Park about bullying and other behavioural issues involving Nurse Unit Manager, Lorraine Reid. Ms Higgs said that she spoke to Ms Bradley and Ms Henderson about the issue. She said that Ms Henderson told her that QNMU members would need to put complaints in writing before she would take action.
  1. [11]
    In an email dated 8 October 2018 Ms Mattner requested an urgent meeting with Ms Bradley and the "nursing staff at Wolston". She referred to morale and mood and referenced a "display in the health centre" which involved Nurse Unit Manager Reid and Ms Ashley-Butler. Ms Mattner said that the nursing staff that witnessed the event "were all deeply affected". She said that the matter was a serious issue which required urgent attention. In the same email, Ms Mattner asked for an explanation for why the rostering function had been taken off her.
  1. [12]
    On 15 November 2018, Ms Mattner participated in a QNMU Branch Meeting which was conducted by teleconference. In her 10 December 2018 affidavit, Ms Mattner said that during the meeting she had been outspoken about workloads, staffing, fatigue management and safety issues at Wolston Park. She said that she very strongly expressed her belief that management must be held accountable for the staffing situation in the Prison Health Services. Ms Mattner said that members, including herself, resolved that a low priority task list be developed and sent to management.
  1. [13]
    Ms Semple said that she had participated in the branch meeting. She confirmed that Ms Mattner had expressed strong views about management accountability, had suggested a stop work meeting at a time when it would have the most impact, and supported the resolution about a low priority task list.
  1. [14]
    Acting Nurse Unit Manager Burton also participated in the branch meeting. A few days after the meeting, and on 19 November 2018, she directed an email to Sally Higgs at the QNMU in which she expressed disagreement with the conduct of the meeting and the dominant role played by Ms Mattner. On 22 November 2018, Ms Burton resigned from the union.
  1. [15]
    Around the same time, and on 21 November 2018, Ms Mattner attended a meeting with the Minister at the Brisbane Correctional Centre. The next day, Ms Mattner said that she, and other nurses, received a direction from Nurse Unit Manager Dwyer to the effect that they were not to attend other centres on their days off, or at any other time, to hold meetings to discuss work related issues.
  1. [16]
    In her affidavit dated 10 December 2018, Ms Chase said that during the branch meeting and the meeting with the Minister, Ms Mattner "made complaints about the failure of management to address ongoing workloads, staffing, fatigue management and safety issues".

 Seminal events

  1. [17]
    In submissions, the QNMU said that prima facie evidence of contraventions of the Act were apparent from a narrative of events which disclosed a chronology in which Ms Mattner was treated adversely because of her active involvement in workplace issues and trade union activities.
  1. [18]
    On the QNMU narrative, the setting for the adverse action was a workplace environment in which escalating industrial disharmony was occurring because of increases in workload and working hours caused by an increasing prison population and overcrowding. The disharmony has yet to be resolved and related events include a ministerial intervention and a Crime and Corruption Commission investigation. In her 10 December 2018 affidavit, Ms Mattner said that nurses at the centre had been performing excessive overtime and enduring chronic staff shortages for the last 12 to 18 months.
  1. [19]
    For the QNMU, events started to "snowball" after the 15 November 2018 branch meeting. These events involved some level of collaboration or co-ordination between certain Nurse Unit Managers and particular staff members for the purpose of prejudicing Ms Mattner's interests. Old complaints were brought to the surface while new complaints were made. Ultimately all of these complaints found their way into the hands of a Verifact investigator, Ms Suarez.
  1. [20]
    In the first instance, complaints were introduced by Ms Polmeer during her interview with Ms Suarez on 22 November 2018. On the evidence, others complained as well. These matters caused Ms Suarez to bring the complaints to the attention of Ms Griffin. When Ms Griffin turned her mind to the complaints, she already had to hand a bundle of other complaints passed on from Ms Finley only a day earlier. Two further complaints were received from Ms Dwyer the following day.
  1. [21]
    Shortly thereafter on 25 November 2018, Ms Polmeer made a further complaint against Ms Mattner involving a pathology request form. This complaint led to a decision made in early December 2018 to transfer Ms Mattner to the Ipswich General Hospital.

Complaints made to Ms Dwyer on 20 and 21 November 2018

  1. [22]
    Ms Dwyer emailed Ms Finley (Director of Operations, Prison Health Services) and Ms Bradley (Nurse Unit Manager) on 20 November 2018 in which a file note prepared by Ms Dwyer was attached. The file note is a record of a discussion between Ms Dwyer and Ms Polmeer on 19 November 2018. Ms Dwyer said that Ms Polmeer had arranged to see her regarding concerns she had about the Wolston Correction Centre. The file note records multiple complaints against Ms Mattner.
  1. [23]
    In the file note Ms Polmeer stated that she had not previously encountered "such a level of unprofessionalism" and she identified Ms Mattner as a central figure when it came to unprofessional conduct. Included in the matters complained about by Ms Polmeer was a statement that Ms Mattner "has campaigned actively against Lorraine Reid" and had held staff meetings "telling staff to stick together against" Ms Reid.
  1. [24]
    The file note also disclosed that Ms Polmeer informed Ms Dwyer that she intended to raise the contents of the file note with the Verifact investigator that week. On this evidence, it is open to conclude that as at 20 November 2018, Ms Dwyer, Ms Bradley and Ms Finley knew that material damaging to Ms Mattner was to be provided to Ms Suarez by Ms Polmeer on 22 November 2018.
  1. [25]
    Ms Dwyer received a further email from a staff member on 21 November 2018 which included two file notes. The covering email referred to a deep concern for patients and for writer's own professional safety and stated inter alia "file notes from yesterday for you to have a look at and add to previous notes". It was Ms Mattner's view that these file notes were written by Ms Polmeer.
  1. [26]
    The two file notes were dated 20 November 2018. One referred to an incident at handover on 19 November 2018 in which Ms Mattner made fun of a patient using a crutch and told staff to take the crutch from him. The view was that such an action would be a risk to the patient's safety. In her affidavit, Ms Mattner denied that she did not handle the matter reasonably. She said that there were no adverse consequences for the patient.
  1. [27]
    The other file note related to a discussion between the writer and Ms Mattner about the distribution of S8 medication. It was alleged that during the discussion Ms Mattner became upset, spoke aggressively and refused to entertain any change to the current procedure. The issue escalated and it was claimed that Ms Mattner made personally insulting remarks, told the writer that she gave her the "shits", and said that she did not like working with the writer. Neither of the file notes, on their face, related to matters relevant to an investigation into Ms Reid.
  1. [28]
    Ms Dwyer forwarded the file notes to Ms Bradley and Ms Trayling on 22 November 2018. The following day, Ms Trayling forwarded the file notes to Ms Griffin and said "please see attached and below concerns raised re TM for consideration by Yolanda".
  1. [29]
    Ms Mattner made it clear that she did not enjoy a good relationship with Ms Polmeer. She said that Ms Polmeer was very critical of the way things were done at Wolston Park. She said that Ms Polmeer "talked down to her", and that she had shown "contempt for prison nurses". Ms Mattner questioned the validity of complaints made against her. She said that Ms Polmeer had no experience in working in prisons, that prison nursing was undertaken in a very different setting to other environments, and that a number of things have to be done differently in a prison environment.

Provision of complaints by Ms Finley on 22 November

  1. [30]
    On 22 November 2018, Ms Finley emailed Ms Griffin on 22 November 2018 a collection of emails and file notes relating to the conduct of Ms Mattner. The covering email is not included in the evidence, but Ms Prince provided the information in one of her affidavits. It is not known what prompted Ms Finley to provide the information.
  1. [31]
    While Ms Griffin received the material from Ms Finley on 22 November 2018 and some further material from Ms Trayling on 23 November 2018, the information was not provided to Ms Suarez until 29 November 2018, the day on which Ms Suarez had completed her interview program. In her 16 April 2019 affidavit, Ms Prince said that she directed that the information be provided to Ms Suarez "so that she could correlate such material with the complaints that she was receiving from employees directly".

Verifact interviews on 22 November

  1. [32]
    After completing interviews on 22 November 2018, Ms Suarez informed Ms Griffin on 23 November 2018, that some of the four interviewees had made complaints about Ms Mattner. One of the interviewees on 22 November 2018 was Ms Polmeer, and it is open to conclude that her complaint would have been part of the commentary which prompted Ms Suarez to report as she did on 23 November 2018. Prior to the interviews conducted on 22 November 2018, 19 staff members had been interviewed but none of these staff members had raised concerns about Ms Mattner's conduct.

Resignations from the union

  1. [33]
    At the same time that complaints were being made about Ms Mattner, two Nurse Unit Managers had elected to resign from membership of the QNMU. Ms Bradley had resigned on 21 November 2018 while Ms Burton resigned on 22 November 2018. Ms Finley had also resigned her membership but from an earlier date in August 2018.
  1. [34]
    The QNMU submission was to the effect that the resignations from the union may reflect some developing antipathy toward the union which was related to union activity at or around the same time, including the outspoken conduct of Ms Mattner. The QNMU submission was, in part, influenced by the content of an email sent by Ms Burton after the 15 November 2018 QNMU branch meeting in which Ms Burton participated:

Hi Sally,

I just wanted to voice my concerns regarding the QNMU meeting we just held via teleconference.

It appeared that one person overtook the meeting and spoke on behalf of all members, when this was not the case.

When you asked people to raise their hands, I saw only about half or even less than half of the members at BCC raise their hands to support a stop work meeting. I certainly am not comfortable with a stop work meeting and therefore did not raise my hand in support of this.

I think to be fair to people too scared to speak up in a dominant group, it would be better for staff to be emailed with the planned action proposed and a vote conducted.

I am also concerned that the low task priority list was made again with not all members having a say. I recognise this list from some time ago and again feel that not all members got a draft version to make comment on/or suggestions. I know as a member I only got the final version. I do not agree to everything on the low priority list.

I am happy to support appropriate action that does not impact patient safety or my job security with PHS.

Kind regards,

Kelly

Kelly Burton

  Acting Nurse Unit Manager | Prison Health Services

 Further complaints on 30 November 2018

  1. [35]
    On 30 November 2018, Ms Finley referred two complaints about Ms Mattner to Ms Curtis. One of the complaints involved an allegation made by Ms Polmeer on 25 November 2018 that Ms Mattner had destroyed a pathology slip request form.
  1. [36]
    Ms Curtis discussed the allegations with Ms Prince, Ms Trayling and Ms Griffin and subsequently spoke to Ms Henderson. It was Ms Henderson's advice that there was a significant clinical risk associated with the allegations and recommended that Ms MattNer be placed on alternative duties with more supervision.

Prima facie case

  1. [37]
    In the QNMU's view, inferences can be drawn from the rapid escalation of complaints against Ms Mattner soon after Ms Mattner had vigorously criticised management of the health service in relation to workload and related issues. These inferences are sufficient, in the QNMU submission, to support a finding that a prima facie case had been made out for the purposes of the determination of the interlocutory application.

Complaints passed on by Ms Finley

  1. [38]
    The material provided by Ms Finley to Ms Griffin on 22 November 2018 comprised copies of file notes and emails which related to incidents in the workplace occurring between 13 September 2018 and 10 October 2018. The documents are included in Ms Prince's affidavit dated 16 April 2019. The documents all involve workplace issues in which Ms Mattner was involved. Some documents are specifically relevant to the investigation that had commenced into the conduct and behaviour of Ms Reid. Other documents have no connection with the Reid investigation. For my purposes, the documents are identified by reference to the following description:
  • An email from Ms Bradley dated 13 September 2018 to Ms Mattner, Ms Ashley-Butler, Ms Polmeer and Ms Shaw dealing with roster production. A draft roster had been prepared by Ms Bradley and she was inviting input and suggestions.
  • A file note dated 26 September 2018 in relation to a meeting held between Ms Bradley and Ms Mattner relating to roster production. In the meeting, Ms Bradley stated that despite Ms Mattner being informed in an earlier meeting on 10 September 2018 that the rostering function was the responsibility of the Nurse Unit Manager, Ms Mattner had subsequently sought to maintain an involvement in the process and had discussed rosters with staff when she had no authority to do so. Offers by Ms Mattner to contribute to the process were not accepted by Ms Bradley. Ms Bradley stated that Ms Mattner's access to the roster would be removed.

In her affidavit, Ms Mattner said that she had been doing the rosters for at least three to four years before September 2018. She said that when she returned from annual leave in August 2018 she was told that she would no longer be involved in the roster production. She said that she had never been given an explanation for why she had been taken off the roster.

  • A file note dated 28 September 2018 which raised allegations of inappropriate behaviour on the part of Ms Mattner. In her affidavit, Ms Mattner said that she suspected that the file note had been written by Nurse Jo Hall. She said that the conversation reported was a "private one". It was an "ordinary private workplace conversation".
  • An email dated 3 October 2018 from Ms Reid to Ms Finley which dealt with rostering errors. While the email implies that Ms Mattner was responsible for the errors, Ms Mattner said in her affidavit that she did not produce the roster in question, and that either Lorraine Reid or Jo Hall would have produced the roster.
  • An email from a staff member to Ms Finley dated 4 October 2018 which followed on from a discussion on 3 October 2018 with Ms Finley. The email set out details of an incident in which it was alleged that Ms Mattner jeopardised patient care. In her affidavit, Ms Mattner denied any wrongdoing. She said that she would never disregard a management plan and would not have withheld medication. Ms Mattner said that she believed that this complaint had been made by Sarah Hesse.
  • An email from a staff member to Ms Finley dated 9 October 2018 in which allegations were made of intimidating behaviour by Ms Mattner in questioning the decision making of the complainant. The same staff member sent another email to Ms Finley on 10 October 2018 which referred to other clinical matters involving Ms Mattner.
  • In her affidavit, Ms Mattner said that she had no recollection at all of the 9 October 2018 incident. Ms Mattner said that she believed that these complaints had been made by Sarah Hesse. She said that she did not recall the particular episode concerning a prisoner with COPD exacerbations and she denied taking any action to undermine the nurse in question.
  • An email from a staff member to Ms Reid dated 10 October 2018 which referred to an incident in the health centre on 4 October 2018 which was the centre of Ms Mattner's 8 October 2018 complaint about Ms Reid. The writer said that Ms Mattner was orchestrating a campaign against Ms Reid by encouraging co-workers to make diary notes of interactions with Ms Reid and advising staff not to attend in Ms Reid's office unaccompanied. The email also said that "each day at handover this week Tanja has continued to undermine directions" given by Ms Reid. Shortly after receiving the email, Ms Reid forwarded the email to Ms Finley. While Ms Reid immediately forwarded the email to Ms Finley, there is no evidence of any action being taken in response to the email.

Ms Mattner said that a lot of nurses were upset by the 4 October 2018 incident and wanted to talk about it among themselves. It was arising from these discussions that Ms Mattner was motivated to email Ms Finley and Ms Bradley about the incident and to request a meeting.

Suspension, transfer and disciplinary process

  1. [39]
    On or around 3 December 2018, the health service became aware of specific allegations made against Ms Mattner in respect to two matters that were not part of the emails or file notes referred to Ms Suarez. One matter related to a pathology request form while the other related to a failure to follow the triage category procedure. On the same day, Ms Mattner was directed not to commence work and to meet with Ms Finley.
  1. [40]
    Later in the same day (3 December 2018), in correspondence signed by Ms Giles (Acting Executive Director Mental Health and Specialised Services), Ms Mattner was informed that allegations had been made about her professional conduct. Ms Mattner was told that Ms Giles had decided to temporarily transfer her to another work location and told that there would be no financial disadvantage during the temporary transfer. A meeting between the employer, Ms Mattner and the QNMU was arranged for the following morning.
  1. [41]
    The 4 December 2018 meeting was attended by Ms Mattner, Ms Chase (QNMU Industrial Officer), Ms Higgs (QNMU Organiser), Ms Henderson (Executive Director Nursing and Midwifery Services), Ms Finlay (Director of Operations/Nursing Director), and two representatives from HR.
  1. [42]
    On 5 December 2018, Ms Giles emailed Ms Chase and told her that she had decided to confirm the decision to temporarily transfer Ms Mattner. Ms Giles said that there were no suitable alternative duties available at Wolston Park or other correctional centres. She said that Ms Mattner was to be transferred to the Ipswich Hospital. She also said that in order to ensure no financial disadvantage, Ms Mattner would continue to be rostered at Wolston Correctional Centre and paid in accordance with that roster.
  1. [43]
    On the same day, the QNMU corresponded with Ms Henderson and asserted that the transfer action amounted to a suspension and that there was no lawful basis for the action taken by the employer. The QNMU also stated that the employer had elected to commence an unlawful and unjustified process against Ms Mattner notwithstanding that the employer knew of the critical workload concerns held by nurses in the prison service.
  1. [44]
    On 6 December 2018, Ms Giles wrote to the QNMU and confirmed that the direction to perform alternative duties was made according to s 137 of the PS Act. Ms Giles said that Ms Mattner will remain at the Ipswich Hospital on alternative duties until such time as the allegations against her have been properly investigated and finalised.
  1. [45]
    On 7 December 2019, Verifact's preliminary review report was provided to the health service. Ms Prince said that when she received the report she forwarded a copy of the report to Ms Curtis and Ms Giles. Ms Prince said that at the time, Ms Giles was acting in Ms Curtis' position.
  1. [46]
    In the report, Verifact stated that it had completed its preliminary inquiries and provided a brief summary report in accordance with the health service's instruction. The report confirmed that 27 employees had been interviewed. The scope of the report was described as follows:
  • Interview up to 30 employees who have raised concerns regarding their manager.
  • As per verbal instructions from your office on 23 November 2018, also provide an outline of complaints raised against Tanja Mattner, Clinical Nurse.
  • Electronically record interviews and obtain transcripts.
  • Prepare a summary of concerns raised through interviews and collate as a brief report.
  1. [47]
    The report identified ten instances of inappropriate behaviour on the part of Ms Mattner. The report stated that "there was evidence that Ms Mattner":          
  1. (i)
    Used negative, offensive, and behaviour towards other staff.
  1. (ii)
    Used intimidation, offensive physical gestures and discriminative communication methods with staff.
  1. (iii)
     Demanded that matters be undertaken as per her specific instructions. Insisting staff work in accordance with her rules which at times undermined decisions made by Ms Reid.
  1. (iv)
    Stood over Ms Reid, or instigated campaigns against her, including grooming tactics and behaviours.
  1. (v)
    Forced her decision regarding patient care onto staff, which at times compromised patient safety. Refused patient care which at times extended outside her scope of practice.
  1. (vi)
    Aggressively overrode, questioned and undermined decisions of Nurse Practitioners and Doctors with regards to patient care/treatment and processes. Worked outside her scope of practice.
  1. (vii)
    Disregarded patient needs and prescribed care, particularly regarding prescribed medications, which included delaying treatment and/or changing medications. On numerous occasions doing so based on her opinion that the patient was diverting.
  1. (viii)
    Displayed a lack of empathy, care and attention to her duties and patients.
  1. (ix)
    Showed favouritism with regards to rostering.
  1. (x)
    Created a stressful workplace environment which resulted in low staff morale in her presence.
  1. [48]
    In correspondence signed by Ms Curtis on 19 December 2018, Ms Mattner was informed that during the course of the Verifact investigation into Ms Reid, complaints had been made about her behaviour in which it was alleged that she had bullied other employees and that she had compromised patient safety.
  1. [49]
    In the correspondence, Ms Curtis determined that Ms Mattner should perform alternative duties at the Ipswich Hospital. Ms Mattner was also put on notice that the allegations may need to be referred to the Crime and Corruption Commission and to the Office of the Health Ombudsman. Ms Curtis also said that before the allegations were presented to Ms Mattner they would be better particularised.
  1. [50]
    This eventuated on 30 January 2019, when Ms Suarez emailed Ms Mattner attaching a letter detailing the allegations and asking her to attend an interview on 13 February 2019 where she would be provided with an opportunity to respond to the allegations. The following seven allegations were set out in the correspondence:          
  1. (i)
    You used offensive, intimidating, aggressive and bullying styled gestures and communication methods towards other staff.
  1. (ii)
    You demanded that matters be undertaken as per your specific instructions, in accordance with your rules, which at times undermined decisions made by Lorraine Reid.
  1. (iii)
    You stood over Lorraine Reid, or instigated campaigns against her, which displayed grooming styled tactics and behaviours.
  1. (iv)
    You enforced your decision regarding patient care onto staff, which at times compromised patient safety.
  1. (v)
    You aggressively overrode, questioned, refused and/or undermined decisions of Nurse Practitioners and General Practitioners with regards to patient care/treatment and processes; which was working outside your scope of practice.
  1. (vi)
    You showed favouritism with regards to rostering.
  1. (vii)
    You created a stressful work environment which resulted in low staff morale.
  1. [51]
    On 14 March 2019, Ms Mattner was directed to commence duties at the Outpatients Department of the Ipswich General Hospital on 18 March 2019. The direction came from the employer's lawyers, McCullough Robertson. In the letter, it was noted that Ms Mattner had not complied with the original direction to commence work at the Ipswich Hospital and had elected to take annual leave.
  1. [52]
    Ms Mattner had originally been directed to relocate to Ward 7C of the Ipswich General Hospital, but following the intervention of the QNMU, Ms Mattner was transferred to the Outpatients Department. It was Ms Higgs evidence that Ms Mattner's skills and qualifications were not suited to Ward 7C, that she may not be working within her scope of practice in that Ward, and that she doubted that adequate clinical supervision would be available to assist Ms Mattner.

Jurisdiction

  1. [53]
    The respondents submitted that the operation of s 286(2) of the IR Act and s 26(3) of the PS Act meant that Ms Mattner was prevented from alleging that decisions taken by Ms Curtis could be considered to be adverse action. The provisions are set out below:

26Work performance and personal conduct principles

(3)Further, a public service manager must—

(a)pro-actively manage the work performance and personal conduct of public service employees under the manager’s management; and

(b)if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter.

(4)In this section—

public service manager means a public service employee whose duties involve or include managing other public service employees in the carrying out of their duties.

 

 282 Meaning of adverse action

 

 (6)Adverse action does not include action that is authorised under –

  1. (a)
    this Act or any other law of the State; or
  2. (b)
    a law of the Commonwealth
  1. [54]
    The effect of the respondents' submission was that Ms Curtis was required by s 26(3) of the PS Act to take action in response to the allegations made against Ms Mattner. In these circumstances, where Ms Curtis was required by a law of the state to take prompt and appropriate action to address the allegations made against Ms Mattner, s 282(6) of the IR Act operated as a bar to Ms Mattner exercising her rights under the general protections provisions of the IR Act.
  1. [55]
    If the respondents' submission were accepted, it may mean that entities subject to the provisions of the PS Act would enjoy immunity from the operations of the general protections provisions of the IR Act notwithstanding that the action taken pursuant to s 26 (3), was taken for an improper reason as contemplated by s 285 and s 291 of the IR Act.
  1. [56]
    In my view, while s 26(3) of the PS Act requires a public service manager to take prompt and appropriate action to address unacceptable work performance, the section is premised on the basis that a correct finding has been made that unacceptable work performance has in fact occurred and that the remedy proposed by the decision maker is lawful. In a context where these issues are in dispute, I don’t accept that s 282(6) can have effect. Further, it is open to conclude that, in determining to invoke the provisions of s 137 of the PS Act, and in deciding to relocate Ms Matter to alternative duties at Ipswich General Hospital, the relevant manager has taken prompt and appropriate action.
  1. [57]
    While it is not required that I arrive at a final view on the matter, as currently informed, I prefer the QNMU submissions in relation to the matter. I do not accept that, on the facts and circumstances relevant to this proceeding, the operation of s 26(3) of the PS Act operates to preclude Ms Mattner from exercising her rights under the general protections provisions of the IR Act.

Prima facie case

  1. [58]
    The health service defended the QNMU allegations on the basis that all of the decision makers involved in the investigation of Ms Mattner's conduct had provided an affidavit in which they swore that Ms Mattner's membership of the QNMU or Ms Mattner's involvement in workplace issues was not a factor taken into account in making decisions to commence the investigation into Ms Mattner or in respect to related decisions including the transfer of Ms Mattner to the Ipswich General Hospital.
  1. [59]
    Affidavits in this regard were provided by Ms Curtis, Ms Henderson, Ms Prince, Ms Trayling and Ms Bradley. In terms of persons who may be able to contribute to an understanding of the seminal events, affidavits were not provided by Ms Dwyer, Ms Finley or Ms Griffin.
  1. [60]
    While Ms Bradley was a recipient of emails from Ms Dwyer on 20 November 2018 and 22 November 2018, she did not deal in her affidavit with any circumstances associated with the receipt of these emails. Ms Bradley did say however that she was not aware that Ms Mattner had attended union meetings or had been active in union business, until some time in 2019.
  1. [61]
    The ultimate decision maker, Ms Curtis, said in her 24 April 2019 affidavit, that throughout the decision making processes, she sought information and advice from Ms Trayling, Ms Prince, Ms Bradley, and Dr Henderson. The effect of this evidence is that a collaborative decision making process was in place and when answering the central question of why the adverse action was taken, it will be necessary to examine the evidence of all persons who contributed to, or shaped, the decision making process and its outcome.
  1. [62]
    While the QNMU agreed that a collaborative decision making process was in place, it maintained however that inquiries needed to extend beyond the reasons which motivated the senior management team to act, and must include consideration of the contributions made by relevant nurse unit managers and certain co-workers in so far as the seminal events were concerned. If it could be established through these events that the decision making process had been tainted, it was probable that the senior management team's decision making was tainted in that decision were made on a flawed understanding of the underpinning facts and circumstances.
  1. [63]
    In more particular terms, the QNMU said that Ms Curtis had very little familiarity with the relevant facts and circumstances underlying the decision to investigate Ms Reid, and the decision to extend the Verifact investigation to investigate Ms Mattner. It was submitted that Ms Curtis had no understanding of the seminal events, was not aware of any differences between Ms Mattner and some of the complainants, did not know that resignations from the QNMU may have reflected some antipathy towards Ms Mattner, and was not familiar with the fact that the Verifact investigation was commenced because of complaints made by Ms Mattner about Ms Reid.
  1. [64]
    In her evidence, Ms Curtis did not claim to be fully apprised of all the background facts and circumstances. She said, in effect, that it was not necessary for her to test the veracity of the allegations but only to accept the allegations at face value and to ensure that they were appropriately investigated.
  2. [65]
    In these circumstances, it was clear to the QNMU that any examination of the reasons for the decision to take adverse action against Ms Mattner had to extend beyond a consideration of the reasons put forward by Ms Curtis and senior managers. Until this occurred, and without findings that the seminal events were free of improper reasons, the decisions of Ms Curtis could not be regarded as reliable. Particular attention was given to the roles of Ms Finley and Ms Bradley in final submissions (T3-35):

So what that leads to is this:  that it is clear, at least on the case as we know it so far, that Ms Finley and Ms Bradley had an effect on the ultimate decision in issue here, and it is my submission that there is, once the narrative is considered, a prima facie case on the evidence not contested that two things:  Ms Bradley and Ms Finley were involved in putting together the case against Ms Mattner and, secondly, they can be inferred at this stage in the absence of evidence from Ms Finley, in particular, to have a union antipathy …

  1. [66]
    I accept that the QNMU narrative associated with the seminal events surfaces significant unanswered questions and establishes that there are serious issues to be tried in the substantive proceedings. These issues include:
  • Was there a level of co-ordination between Nurse Unit Managers and Ms Polmeer (and possibly Ms Hesse) associated with the timing of the lodgement of complaints, and the introduction of material inimical to Ms Mattner's interests in interviews with Ms Suarez?
  • In terms of complaints relevant to Ms Reid, particularly the 10 October 2018 emailed complaint, why did Ms Finley wait until 22 November 2018 before referring the complaint to Ms Griffin?
  • Why were old complaints that had never been raised with Ms Mattner, and were never acted upon, and which were unrelated to the Reid investigation, provided to Ms Griffin on 22 November 2018 before Ms Suarez had notified Ms Griffin on 23 November 2018 of what had transpired during the 22 November 2018 interviews?
  • Were the complaints gathered by Ms Suarez in interviews on and after 22 November 2018, substantially the same complaints as those already gathered by Ms Finley, Ms Dwyer and Ms Bradley?
  1. [67]
    Notwithstanding these concerns, there are competing considerations which dispute inferences that Ms Mattner was subject to adverse action because of her involvement in workplace issues or industrial activities. It will always remain the case that serious allegations had been made by co-workers about the conduct of Ms Mattner, and that the health service had no option other than to investigate those allegations.
  1. [68]
    There was nothing inappropriate in the introduction into the Reid investigation of material that included allegations that raised the possibility that Ms Reid may have been the subject of a campaign conducted with the objective of undermining her authority and bringing her into disrepute.
  1. [69]
    If Ms Mattner was implicated in those allegations, it was inevitable that, in some way or other, some form of inquiry into her conduct would have to take place. While the preferable course would have been not to introduce non-relevant allegations into the Reid investigation, ultimately all the allegations made against Ms Mattner were assigned to a separate investigative process presided over by Ms Suarez.
  1. [70]
    There is no direct evidence that the relevant actions of any of the senior management decision makers or Ms Finley, Ms Bradley or Ms Griffin were taken with an intent to harm Ms Mattner because of her involvement in workplace issues and industrial activity. Ms Bradley in particular said that she was not aware that Ms Mattner had attended union meetings or been active in union business.
  1. [71]
    Even if the complaints made during November 2018 were maliciously motivated and intended to harm Ms Mattner, it does not necessarily follow that the adverse action was taken because Ms Mattner had exercised workplace rights or engaged in industrial activities. On the evidence other motives may exist, particularly relating to a contest of some significance in the workplace between Ms Reid and Ms Mattner. While the prosecution of complaints by particular staff members may have been part of this contest, management was obliged to investigate the complaints.
  1. [72]
    It is not for me in these proceedings to make final determinations about any of these matters. The decision to be made is whether, on the evidence as it is, the QNMU has demonstrated a sufficient likelihood of success in the substantive proceedings to warrant the grant of relief.

Balance of convenience

  1. [73]
    I proceed on the basis that, on the evidence as it is, there are serious questions to be tried in the substantive proceedings. I do not assess the QNMU case as weak, but because it is circumstantial in nature, it is not necessarily a strong case. There is, however, a sufficient probability of success to conclude that the first test enunciated in ABC v O'Neill has been satisfied.
  1. [74]
    The serious questions to be tried arise from actions taken in the workplace in November 2018. At the heart of it all is a consideration of whether particular events evolved organically and innocently, or whether there was a level of co-ordination associated with the making of complaints to Ms Suarez on 22 November 2018, and the supply of file notes and materials to Ms Griffin at or around the same time, with an intent to injure Ms Mattner because of her involvement in workplace issues and industrial activities.
  1. [75]
    The respondents' prejudice arises from any failure to expeditiously conclude its investigation into allegations of misconduct made against Ms Mattner, and from the consequences of a direction to return Ms Matter to Wolston Park in circumstances where it has been alleged that she has bullied or intimidated other staff and compromised patient safety at that workplace.
  1. [76]
    Ms Mattner is prejudiced by the direction to perform alternative duties at the Ipswich General Hospital, and by the progression of the Verifact investigation before her general protections application has been decided.

Transfer/Suspension

  1. [77]
    The QNMU argued that Ms Curtis' decision to transfer Ms Mattner to Ipswich Hospital was unlawful in that it did not comply with the relevant provisions of the PS Act.
  1. [78]
    I am not persuaded on the material before me that the respondent's decisions associated with the relocation of Ms Mattner to the Ipswich General Hospital involves non-compliance with the PS Act. In my view, s 137 of the PS Act should be construed to allow, in the first instance, a determination to be made about whether a particular set of circumstances warrant suspension. If a determination is made to that effect, before implementing a suspension, the option of alternative duties must be considered.
  1. [79]
    In this matter, consistent with the scheme of the PS Act, the decision maker, having found grounds for suspension, decided to direct alternative duties. In exercising this discretion, in my view, the decision maker is not restricted to a consideration of the performance of alternative duties in the same workplace. The decision maker did not act unlawfully in concluding that the alternative duties should be performed at the Ipswich General Hospital.
  1. [80]
    In so determining I prefer the submission of the respondent in so far as it relates to the scheme of the PS Act and the construction to be given to s 137 of the PS Act (T4-11):

This is simply a case where section 137 has been invoked;  the decision-maker has asserted that they have the relevant belief that’s required by section 137(1), they do have the power to suspend but they will not be exercising it. Instead of sending the person home on full wages doing nothing, they’re going to move them to a place where they can maintain skills and abilities, and earn their wages paid by the state.

Now, that’s the scheme of the legislation and that’s exactly what happened. There is absolutely no prohibition whatsoever built in there against moving an employee from one department to another department of the Health and Hospital Service at the behest of a manager. There’s every reason to believe that 137(3) is intended to confer that right upon a manager. What possible purpose would 137(3) have if the manager was actually prohibited from giving the person the alternative duties that they found for them?  It’s necessarily part of the scheme of the legislation.

  1. [81]
    In her affidavit dated 20 March 2019, Ms Semple in addressing prejudice to Ms Mattner arising from the transfer to Ipswich General Hospital, referred to reputational damage, deskilling that will occur over time as Ms Mattner works in different clinical settings, and financial detriment through increased travel time, increased travel costs and a loss of overtime. She said Ms Mattner would incur continuing financial detriment if the decision to relocate Ms Mattner were not reversed.
  1. [82]
    These propositions however are not sufficient to persuade me that an order should be made returning Ms Mattner to Wolston Park. While Ms Mattner's employment circumstances have changed, they have not changed in a way that is causing significant prejudice. Reputational impact is contingent on the conclusion of the investigation and any disciplinary process, deskilling is unlikely to occur across the time that Ms Mattner will be required to spend at the Ipswich General Hospital, and financial detriment can be adequately remedied through the grant of orders in the substantive proceedings.
  1. [83]
    Conversely, I accept that, given the nature of the allegations against Ms Mattner, it would be problematic to return her to Wolston Park until such time as the allegations against her are resolved.

 Verifact investigation

  1. [84]
    I accept that the respondents will be prejudiced by an order suspending the Verifact investigation. The respondents understandably want to exercise their right to expeditiously investigate and resolve complaints of inappropriate workplace behaviour. Any delay in these processes is undesirable, However, on balance, I think Ms Mattner is exposed to a greater prejudice.
  1. [85]
    If the Verifact investigation is not restrained, Ms Matter will be required to concurrently progress her general protections claim while at the same time defending her interests during the various stages of Verifact investigation and any subsequent disciplinary process.
  1. [86]
    More importantly, it is inevitable that any findings made in the substantive proceedings adverse to the health service will have implications for both the Verifact investigation and any disciplinary process commenced as a result of the Verifact investigation. In this regard, the submissions of the QNMU resonate (T4-7):

There is no prejudice to the respondent. If the investigation is tainted, it shouldn’t be entitled to rely on it. The delay, in this instance, is no prejudice. It is a proper step to ensure that this process is free of any taint, before it ought proceed. And the health service, as a public sector employer, ought be keen to ensure that that is the case. It is not prejudice by a delay in something that should never have been commenced in the first place.

And assume the respondent succeeds. It pays no real price except for a short period of delay, given the hearing dates. We’re a matter of weeks away from a hearing. It is unlikely, in the circumstances, that the investigation will be anywhere near complete. And it’s an unholy – it becomes an unholy race between the Commission making its findings and Ms Suarez making her findings – an unholy race that shouldn’t be blessed by allowing it to continue.

  1. [87]
    I am satisfied that the balance of convenience considerations favour the grant of an interlocutory injunction restraining the health service from continuing with the Verifact investigation, but do not favour the grant of an injunction to return Ms Mattner to Wolston Park. Ms Mattner's continued employment at the Ipswich General Hospital mitigates any adverse consequences resulting from a delayed investigation.
  1. [88]
    It follows that an application made by the respondents to the effect that the substantive proceedings should be adjourned pending the conclusion of the Verifact investigation and any disciplinary process, cannot succeed.

Orders

  1. That pursuant to s 314 of the Industrial Relations Act 2016, until the hearing or determination of Matter number GP/2018/29 and Matter number GP/2019/3, or until further order, the West Moreton Hospital and Health Service is restrained by itself or its servants or agents including Verifact Pty Ltd from continuing with the health service investigation into allegations against Tanja Mattner.

Footnotes

[1] Australian Broadcasting Corporation v O'Neill (2006) 227 CLR 57.

Close

Editorial Notes

  • Published Case Name:

    Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service

  • Shortened Case Name:

    Queensland Nurses and Midwives' Union of Employees v West Moreton Hospital and Health Service

  • MNC:

    [2019] QIRC 72

  • Court:

    QIRC

  • Judge(s):

    Black IC

  • Date:

    27 May 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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