Hayes v State of Queensland (Queensland Health)
[2020] QIRC 234
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- Unreported Judgment
- Hayes v State of Queensland (Queensland Health)[2020] QIRC 234
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Hayes v State of Queensland (Queensland Health)[2020] QIRC 234
Hayes v State of Queensland (Queensland Health)[2020] QIRC 234
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hayes v State of Queensland (Queensland Health) [2020] QIRC 234 |
PARTIES: | Hayes, Emma (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2020/272 |
PROCEEDING: | Public Service Appeal – Fair Treatment |
DELIVERED ON: | 24 December 2020 |
MEMBER: | Knight IC |
HEARD AT: | On the Papers |
ORDERS: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – where decision that allegations substantiated against appellant – whether decision fair and reasonable. |
LEGISLATION: | Industrial Relations Act 2016 Public Service Act 2008 |
CASES: | Briginshaw v Briginshaw (1938) 60 CLR 336 Kiao v West (1985) 159 CLR 550 Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30 Vega Vega v Hoyle & Ors [2015] QSC 111 |
Reasons for Decision
- [1]Ms Emma Hayes ('the appellant'), a registered nurse with the West Moreton Hospital and Health Service in Queensland Health ('the respondent'), appeals a finding under s 187 of the Public Service Act 2008 ('the Act') that grounds exist to discipline her.
- [2]She organised a social event – 'ED Xmas in July Party' – within a Facebook group, 'Ipswich ED Social Group'. It comprised colleagues who work in the emergency department. Allegations arose out of the party:
Allegation 1: On 18 July 2020, you inappropriately lifted your skirt and showed your underwear to a West Moreton Health employee at a work-related social event.
Allegation 2: On 18 July 2020, you did not demonstrate the expected behaviours of a West Moreton Health employee at a work-related social event held in a public venue.
- [3]Determination of this appeal turns on whether it was fair and reasonable for the respondent to substantiate the allegations. For reasons which follow, I allow the appeal, set aside the decision and substitute in lieu thereof the decision that the allegations are unsubstantiated.
Grounds of Appeal
- [4]The appellant argues she was denied natural justice (or procedural fairness) in circumstances where the evidence relied upon was:
- hearsay;
- heavily redacted thus impeding her ability to make an informed response; and
- duplicated in both allegations.
- [5]Her appeal notice contained additional grounds of appeal that:
- impugn the lawfulness of the disciplinary process where, she says, further and better particulars of the allegations and the evidence supporting them were not provided; and that
- the respondent, despite concluding allegation one did not amount to sexual harassment, substantiated the allegation regardless.
Background
- [6]Roughly a fortnight after the party, the appellant received correspondence inviting her to respond to the allegations. The Queensland Nurses and Midwives' Union ('the union'), who represented the appellant throughout the process, requested further and better particulars, as well as the evidence relied upon. The respondent provided heavily redacted emails, including a photograph, and file notes which summarised discussions regarding the party between witnesses and Nurse Unit Manager, Ms Kirsty Franklin.
- [7]The photograph depicts the appellant posing and drinking among friends at one of their residences before the party. It was derived from a Facebook page and emailed to Ms Franklin.
- [8]The union voiced its concerns as to the absence of 'direct witness statements or objective first person evidence', the reliance upon hearsay, and the erasure of any contextual information through the 'heavy and significant' redaction of material which, in all, was said to have stymied the appellant's making of an informed response.
- [9]In refusing to provide unredacted copies, the respondent explained the 'information that has been redacted either identifies individuals that have been identified as PID's or is not relevant to [the appellant]'. An assurance was made that the decision-maker would only rely upon the redacted versions in deciding the matter. In relation to hearsay, it was said:
The Health Service has not relied upon hearsay and only witnesses to the events should be relied upon. I would like to confirm that I held conversations with parties that were identified as witnesses to the events and this is why there is an email to parties confirming conversations.
- [10]The union provided its response to the show cause notice which included a statement by the appellant.
- [11]By letter dated 1 October 2020, the respondent, considering the disciplinary penalty of a reprimand, substantiated both allegations. Due to typographical errors to be discussed below, it was retracted and reissued on 13 October 2020.
- [12]That (final letter), the basis of this appeal, conveys the respondent's substantiation of both allegations.
Consideration
Typographical Blemishes
- [13]The decision letter dated 1 October 2020 aroused some confusion. Although the letter states allegation one is 'not able to be substantiated', the 'statement of reasons' attached thereto concludes in summary that, on the contrary, allegation one is substantiated. The letter was retracted and reissued on 13 October 2020.
- [14]It appears, furthermore, that both letters misstated the numeral of the provision of the Act – s 187(1)(d) rather than s 187(1)(f)(ii) – under which grounds for discipline arose.
Ms Franklin's Role – Duplicitous?
- [15]A discussion occurred at the appellant's instigation with Ms Franklin prior to formal allegations being made. The appellant complains that, unbeknown to her at that time, Ms Franklin, having already assumed an 'investigative role', possessed 'contemporaneous knowledge' of the incidents and, her impartiality comprised, proceeded to harvest information then used against her.
- [16]On the materials before me, I am not persuaded Ms Franklin played a 'dual role of line manager and investigator'. It was the appellant who approached Ms Franklin in the first instance, who was then under an obligation to provide support as expected of any line manager. She was not the decision-maker, nor did she have input into any conversations with witnesses following the material dated 21 July 2020. At most, before this time, she appeared to function as a receptable of, and conduit for, information concerning the incidents.
Duplication of Allegations
- [17]The allegations are that the appellant lifted her skirt to another employee at a 'work-related' social event and, separately, failed to demonstrate the expected behaviours of an employee thereat.
- [18]Quite plainly, the terms of the allegations overlap. The first allegation contains subject matter covered by the second and, like one Matryoshka doll into another, should have been subsumed by it. I have some sympathy for the appellant's concerns about the substantiation of 'two separate findings by duplicating the particulars' from one allegation to another. This, to my mind, artificially ascribed greater gravity to the incidents, disciplinary process and proposed penalty.
The Spectre of Sexual Harassment in Allegation One
- [19]The appellant contends that allegation one could not be sustained once the respondent concluded that her conduct did not amount to sexual harassment. This contention might have held merit if, in its terms, the allegation alleged sexual harassment. But it was never predicated upon the occurrence of sexual harassment. In fact, the only mention of sexual harassment, as best I understand, was in the initial show cause letter dated 7 August 2020 and, even then, its invocation and reference to the relevant policy was tangential and later abandoned altogether.
Evidentiary Concerns: The Redactions and Hearsay
- [20]I have considered all the parties' filed submissions, and while I do not intend on canvassing the entirety of the evidence considered in the substantiation of the allegations in these reasons, I will set out some of the more important material.
- [21]Ms Franklin received an email on 20 July 2020 which set out the sender's grievance:
I am aware that there is a lot of hearsay, and a lot of rumours. But I am also aware that many of my colleagues are frustrated by the lack of disciplinary action regarding the behaviour that [redacted] witnessed from RN [S.P],[1] as well as [redacted] belief by the management team that events have been exaggerated...
- [22]In a file note dated 21 July 2020, Ms Franklin paraphrases the account of one witness. It is heavily redacted. I am uncertain whether the witness signed the statement. So far as it relates to the appellant, the file note provides:
[Redacted] provided the following information in relation to [S.P]:
...
- [Redacted] stated that at this time [the appellant] went over to members of the public and asked them to stop looking as all those present were from Ipswich ED and that they knew what to do regarded care for [S.P]
...
- The female member of the venue stated back to [the appellant] that she had raised concerns about [S.P] and her behaviour to [the appellant] many times during the night.
- The female member of the public stated that [the appellant] was intoxicated.
- [The appellant] denied being intoxicated.
- The female member of the public stated that she had witnessed [the appellant] being removed from the male toilets on numerous occasions during the night.
- [The appellant] flashed her underwear.
- [23]There is also an email of Ms Jen Hair, Senior Workplace Relations Advisor, dated 30 July 2020, its subject line redacted. It contains virtually nothing of direct relevance to the appellant.
- [24]Next, there are two emails, both dated 30 July 2020 and heavily redacted, which bear the subject lines 'Conversation 27.07.2020'. The first provides:
... During our conversation you advised:
- [Redacted] arrived at the event at approximately 4:30pm and that [redacted], [the appellant], [redacted] were quite intoxicated.
- [The appellant] flashed her underwear on multiple occasions in an area accessible to the public.
- [Redacted], [the appellant], [redacted] were not acting like they typically would and their behaviour was erratic, they were running around and couldn't sit still.
- [25]The second reads as follows:
...
- [Redacted] were talking with friends at the party and there were [sic] a group of people acting strangely including [redacted], [the appellant], [redacted]. The behaviour [redacted] noticed was that they were overly friendly and "hyped out".
...
- At approximately 8:00pm, [the appellant] lifted her skirt and flashed her underwear directly at [redacted] resulted in [redacted] feeling uncomfortable.
- [26]Earlier in these reasons, I noted the existence of a photograph derived from a Facebook page and emailed to Ms Franklin. The decision-maker (correctly) decided not to rely upon the photograph in circumstances where, taken at a private residence among friends, it is clearly irrelevant.
- [27]A recurrent grievance pressed by the appellant during the show cause process, and now here, concerns the comprehensive redaction of file notes and emails upon which the respondent relied to substantiate the allegations. This was done, according to the respondent, to protect the identities of those making public interest disclosures and to remove material 'not relevant' to the appellant.
- [28]I share the appellant's unease as to the extent of the redaction. The question of whether material is relevant is subjective; the appellant had no say in the matter. And, one might ask, if the material were irrelevant, and not unnecessarily prejudicial to some other party, why not disclose it? It may well contextualise, or put into proportion or perspective, what transpired. As the Federal Court has held:
The obligation to disclose potentially adverse information imposed by the rules of procedural fairness is not discharged by determining that which may ultimately prove to be relevant or significant to the final opinion reached. Although some information may be capable of being put to one side at the outset of a decision-making process, other information may be more immediately central to the ultimate conclusions to be reached. Yet other information may be less centrally important but nevertheless not capable of being summarily cast aside. Some information which may not initially appear to be of central importance may, if disclosed, occasion further factual input and may ultimately assume greater importance to the ultimate conclusion.[2]
- [29]The appellant's other grievance – reliance on hearsay – has merit. I accept that an administrative decision-maker is not bound by the rules of evidence. I also accept that the respondent's method – obtaining information from the individuals then paraphrasing and recording it in file note or email format before providing those individuals with the opportunity to either sign the document or provide written feedback – is not necessarily fatal to the veracity of its findings.
- [30]But here, the lynchpin of the investigation was witness commentary. Where the evidence – the only evidence – relied upon to substantiate the allegations was the recollections of witnesses, one might have expected at least first-hand statements to be adduced from each witness, or a transcribed interview conducted, rather than paraphrased or summarised notes in heavily redacted form.
- [31]I agree with the Lyons J who held in Vega Vega v Hoyle & Ors[3] that it was 'insufficient to provide extracts from statements rather than the entire content of the interviews' in circumstances where the interviews were 'significant' and 'crucial to the findings and recommendations'.[4] Full disclosure avoided, in Her Honour's mind:
a possibility that the investigators and reviewers might miss favourable aspects of the evidence or deliberately cherry pick unfavourable parts and that such a possibility grows more likely as the complexity and detail of the investigation grows.[5]
- [32]The file note dated 21 July 2020 and, with one exception, the emails, are not firsthand accounts of witnesses at the party but rather Ms Franklin's paraphrases of what was said by those witnesses.
- [33]One appreciates the appellant's criticism that much of the email's contents 'cannot be tested or evaluated and there is a possibility of fabrication, exaggeration, distortion or inaccuracy'.
Conclusion
- [34]The appellant claims she was denied natural justice and procedural fairness. By way of illustration, the Public Service Commission's Discipline Guideline 01/17 defines that:
Natural justice (also known as 'procedural fairness') – is a common law requirement with two parts: (a) the hearing rule and (b) the rule against bias. Both are integral to a disciplinary process. When a person's rights or interests may be adversely affected by a decision they should be informed about the allegations (and evidence) against them and provided with an opportunity to be heard (the hearing rule). The decision maker should be unbiased in that they don’t have an actual, possible or perceived conflict of interest in the matter and/or its outcome (the rule against bias).[6]
- [35]In Kioa v West, it was said that the principles of natural justice have a flexible, 'chameleon-like' quality, the content of which depends on the circumstances of the case, including the nature of the inquiry, the subject-matter, and the rules under which the decision-maker is acting.[7]
- [36]Mason J wrote:
In this respect the express 'procedural fairness' more aptly conveys the notion of a flexible obligation to adopt fair procedures which are appropriate and adapted to the circumstances of the particular case. The statutory power must be exercised fairly, i.e., in accordance with procedures that are fair to the individual...[8]
- [37]The procedures, in the main, were fair. The appellant was provided ample opportunity to be heard. She was also provided with the same material on which the decision-maker based the disciplinary decision, and a decision-maker who was unbiased and free from conflicts of interest.
- [38]That said, I have decided to allow the appeal for two principal reasons. Firstly, and less significantly, the process suffered from deficiencies in the form of typographical blemishes related to the grounds for discipline as set out in the Act, therefore leading to confusion about the basis on which the appellant was being disciplined. As well, there was an unwarranted duplication of the allegations. These deficiencies, though immaterial perhaps in isolation, amounted to undermine the disciplinary process.
- [39]Secondly, I have serious misgivings as to the quality of the evidence relied upon. The file notes and emails contain limited detail. The appellant is mentioned either fleetingly or not at all. In some cases, the expanse of redacted content dwarves the content pertaining to her. The 'statements', which are not first-hand but instead paraphrased, contain hearsay, subjective perceptions and references to inuendo or gossip. The redactions deny any possibility of understanding the context surrounding the incidents.
- [40]By contrast, the appellant's evidence – for instance, her statement dated 7 September 2020 – was empathically clear and direct. She did not obfuscate or dissimulate in any way.
- [41]In the case of Briginshaw v Briginshaw, Dixon J considered the balance of probabilities as a standard of proof:
The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[9]
- [42]On balance, having considered the materials before the Commission, I do not feel an actual persuasion that the incidents occurred in the manner in which they have been framed. The evidence lacks the probative force necessary, in my opinion, to found the conclusion that the allegations are substantiated on the balance of probabilities.
Disposition
- [43]Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision dated 13 October 2020 is set aside and substituted in lieu thereof with a decision that the allegations are not substantiated.
- [44]I order accordingly.
Footnotes
[1] An alias has been used.
[2] Minister for Immigration and Citizenship v Maman (2012) 200 FCR 30, 46 [50] (Flick and Foster JJ) (my underlining).
[3] [2015] QSC 111.
[4] Ibid 43-44 [174]-[177].
[5] Ibid 43 [172].
[6] my emphasis.
[7] (1985) 159 CLR 550, 584-585 (Mason J), 612 (Brennan J).
[8] Ibid 585 (Mason J).
[9] (1938) 60 CLR 336, 361-362 (my emphasis).