Rycroft v State of Queensland (Queensland Health)
[2021] QIRC 134
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- Rycroft v State of Queensland (Queensland Health)[2021] QIRC 134
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Rycroft v State of Queensland (Queensland Health)[2021] QIRC 134
Rycroft v State of Queensland (Queensland Health)[2021] QIRC 134
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134 |
PARTIES: | Rycroft, Raymond Kenneth (Appellant)
v
State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2020/373 |
PROCEEDING: | Public Service Appeal – Fair treatment decision |
DELIVERED ON: | 8 April 2021 |
HEARING DATE: | 8 April 2021 |
MEMBER: | Industrial Commissioner Dwyer |
HEARD AT: | Brisbane |
ORDER: | Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
|
CATCHWORDS: | INDUSTRIAL LAW – Public Service Appeal – appeal against a fair treatment decision – proposed decision to terminate employment – evidence relied on by decision maker sufficient to support findings. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Service Act 2008 (Qld) s 194(eb) |
CASES: | Briginshaw v Briginshaw (1938) 60 CLR 336 Goodall v State of Queensland (unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. Tan v Xenos (No.3) [2008] VCAT 584 |
Reasons for Decision
Delivered ex tempore on 8 April 2021
Background
- [1]Mr Raymond Rycroft is employed by the Metro North Hospital and Health Service ('the health service') as a wards person. On 10 July 2020, Mr Rycroft was provided with details of seven allegations in relation to his conduct and invited to formally respond to these allegations.
- [2]Mr Rycroft provided his detailed response to the allegations on or about 3 August 2020.
- [3]On 9 November 2020, Ms Janelle Peel, the Acting Director, Patient Services with the health service wrote to Mr Rycroft advising that following a review of his response all seven allegations were substantiated ('the decision').
- [4]The correspondence confirmed that Ms Peel had decided that there were grounds for disciplinary action and that she was considering terminating Mr Rycroft’s employment. This is the decision that Mr Rycroft now appeals.
- [5]Mr Rycroft was given the option to show cause on the penalty however he elected to appeal the decision pursuant to section 194(eb) of the Public Service Act 2008 (Qld).
Nature of Appeal
- [6]Section 562B of the Industrial Relations Act 2016 (Qld) ('the IR Act') requires me to review the decision appealed against. It is trite to observe that the review is not a rehearing.[1]
- [7]The purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.[2]
What decisions can the Industrial Commissioner make?
- [8]Section 562C of the IR Act provides relevantly that I may either:
- (a)confirm the decision appealed against; or
- (b)set the decision aside and substitute another decision; or
(c) set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Submissions of the parties
- [9]In respect of this appeal, the parties have filed extensive written submissions. I have read these submissions and I do not propose to reproduce them in detail in these reasons. I will refer to the salient parts throughout the course of my reasons.
- [10]In addition to this, the parties have had an opportunity to make submissions at the hearing on 8 April 2021, and also to answer a number of questions that I have put to them regarding their submissions and the matter generally.
- [11]In essence, for a mixture of reasons, Mr Rycroft contends that the decision is not fair and reasonable. To a large extent, the submissions of Mr Rycroft assert that either the conduct complained of was not inappropriate or alternatively, that the conduct complained of did not happen.
- [12]There are other matters raised in Mr Rycroft’s submissions with respect to unfairness in his reply submissions which I will deal with later in these reasons.
- [13]The question for me in this matter is whether, on the evidence available to the decision-maker, the substantiation of the allegations and the subsequent proposal to dismiss Mr Rycroft was fair and reasonable. It follows that I must now consider the allegations and the evidence purporting to support them.
Allegation 1
- [14]Allegation 1 is that:
On 26 February 2019, after repeated instructions from a co-worker not to enter, Mr Rycroft entered a room described as ‘resus room 1’ whilst a young, unconscious and partially undressed female patient was being treated.
- [15]Significantly, Mr Rycroft does not dispute the following facts. Firstly, he does not dispute that he attempted to enter resus room on the day and time in question. Secondly, he does not dispute (and indeed, confirmed through his representative here at the hearing today) that he was told twice by a colleague, Mr Ehrke, that he was not to enter.
- [16]Further, he does not dispute that he subsequently returned after having twice been told not to enter resus room 1, and he entered the room while the patient was still inside.
- [17]I note that Mr Rycroft was not clear in this written response to the show cause process as to whether he actually entered resus room 1. Further, when questioned by me at the hearing, Mr Rycroft was similarly unclear and indeed (initially) the response to my question was that he did not enter resus room 1 but rather, he simply reached under the curtain to pick up a piece of paper off the floor.
- [18]This suggestion was rejected by representatives of the health service who were able to produce some CCTV footage of the incident. I stood the matter down briefly and, following a review of the CCTV footage, it was ultimately conceded by Mr Rycroft that in fact he did enter resus room 1 after having twice been told not to.
- [19]There is then, on Mr Rycroft’s own admissions, uncontested facts that he entered the resus room 1 against the express direction not to do so.
- [20]While perhaps not a direction from a superior, the direction of Mr Ehrke was well founded in the circumstances to protect patient privacy. The collection of a piece of paper from the floor whilst a patient who was unconscious and semi-naked was neither urgent nor necessary at that time.
- [21]Mr Rycroft’s own admission is, in my view, more than sufficient to substantiate allegation 1 and in the circumstances I would regard his behaviour to be misconduct. It follows that I consider the finding of the decision-maker to substantiate allegation 1 to be fair and reasonable.
- [22]I would say further as an aside that the statement of reasons provided to Mr Rycroft with the decision alludes to footage in the CCTV recordings that shows Mr Rycroft entering resus room 1, multiple times prior to the arrival of Mr Ehrke.
- [23]The suggestion by the decision-maker is that the unconscious, undressed young female patient was probably in the room at those times when Mr Rycroft entered. Due to technical difficulties in viewing the footage I did not take the opportunity to view it at the hearing, particularly as I considered that the evidence already available was sufficient to substantiate the allegation against Mr Rycroft.
- [24]However, if the conclusions reached by the decision-maker based on the CCTV footage are sustainable, and the CCTV footage reveals Mr Rycroft entering the room (multiple times) of an unconscious and semi-naked young female patient, then his conduct would be far more serious than what has already been established.
- [25]I note that Mr Rycroft did not, at any time, question Mr Ehrke why he should not go into that room at that time. I was curious about this to the point that I asked that question of Mr Rycroft during the hearing, and it was confirmed that Mr Rycroft never asked Mr Ehrke why he could not go into the resus room.
- [26]Whilst this additional aspect to the incident has no bearing on my decision already enunciated above, the fact that Mr Rycroft did not challenge Mr Ehrke’s direction would suggest to me that Mr Rycroft knew full well why he could not go in to the resus room, and it is concerning to me that he was so insistent on doing so in those circumstances.
Allegation 2
- [27]In relation to allegation 2, the allegation is that:
Between January and February of 2019, Mr Rycroft engaged in inappropriate communications with the First Complainant, an enrolled nurse with the Health Service.
- [28]The particulars of the First Complainant's complaint are that, over some time, Mr Rycroft began spending more time talking to her in the workplace and that he called her names like, 'honey', 'darling' and 'sweetie'. The First Complainant then complains that Mr Rycroft sat at her table in the staff café, uninvited, and began asking her questions about where she lived.
- [29]Establishing in this conversation that she lived on the north side (as he did also), he then suggested that if he saw her at the local shops he would buy her a coffee.
- [30]The First Complainant complains that the conduct of Mr Rycroft made her feel uncomfortable. Moreover, his questioning about where she lived and what shops she might be visiting had her worried that he would find out where she lived or that she would see him at her local shops.
- [31]Mr Rycroft admits to the following: he admits firstly that he referred to the First Complainant as 'darl' sometimes, but not often. That is to say, he does not dispute that he called the First Complainant, 'darl'. Mr Rycroft denied using the other terms such as 'honey' or 'sweetie'.
- [32]Mr Rycroft further admits that he had a conversation in the cafe with the First Complainant in which he discussed where she lived and suggested a coffee if he ran into her.
- [33]A significant point of difference in respect of the facts surrounding this allegation is that Mr Rycroft denies that he simply sat at the First Complainant's table uninvited. Mr Rycroft contends that he was sitting at a table and the First Complainant was sitting at another table and they began a conversation at which point, he then got up and moved to her table.
- [34]Even if I accept his version of events, he still has sat down at the First Complainant's table uninvited.
- [35]Mr Rycroft seeks to characterise the interaction with the First Complainant as simply friendly.
- [36]In this instance the decision-maker was confronted with two accounts that were largely similar but with important small differences. The biggest difference in the two accounts in relation to these interactions between the First Complainant and Mr Rycroft was the respective characterisation that each party placed on these interactions.
- [37]I note that the First Complainant has provided a formal statement in which she carefully and thoughtfully sets out her recollections and the concerns that she had arising from Mr Rycroft’s interactions with her. I also note that at the time of these conversations with Mr Rycroft, the First Complainant was a young woman aged 19. Mr Rycroft on the other hand, from my observations, looks to be a man in his late 50s to this early 60s and in any event, somewhat significantly older than the First Complainant.
- [38]There does not appear to be, nor is there alleged to be, any motive for the First Complainant to misrepresent these facts. Her uneasiness about her interactions with Mr Rycroft are no doubt based on her instinct but in all the circumstances, I am inclined to trust her instinct. A significantly older male colleague seeking out a younger female colleague for conversations in which he calls her or speaks to her using affectionate terms such as 'darl', and where he asks questions of a probing and personal nature, such as "where do you live?" is not, in my view, something that can easily be characterised as 'friendly' conversation.
- [39]The interactions described by the First Complainant and (largely) conceded by Mr Rycroft in my view fit the classic pattern of an escalation for sexual harassment. That such conduct occurred in the absence of witnesses is a particular feature of this in my experience. The absence of witnesses provides Mr Rycroft with what he no doubt regards as his defence: deniability. It provides him with the opportunity to place a 'spin' on the interactions and to characterise them as simply friendly or innocent conversations. Unfortunately for Mr Rycroft, I have heard all of that too many times before. I do not accept it.
- [40]At this point I should add that there was a submission by Mr Rycroft, through his representative, as to the standard of proof needing to meet the Briginshaw standard.[3] I understand the Briginshaw standard.[4] I do not consider the absence of corroborating evidence to be an impediment in these circumstances.
- [41]In my view, the decision-maker was entitled to prefer the evidence of the First Complainant, as set out in her statement. On the basis of her evidence, the conclusion made by the decision-maker that allegation 2 could be substantiated was entirely open to the decision-maker. I consider that the decision to substantiate allegation 2 was open on the evidence and fair and reasonable.
Allegation 3
- [42]In respect of allegation 3, the allegation is that:
Between October and November 2019, Mr Rycroft asked a female colleague, the Second Complainant, inappropriate questions.
- [43]The Second Complainant, who was not significantly acquainted with Mr Rycroft, alleges that he asked her at work one evening if she had a boyfriend. Later, on another occasion, the Second Complainant alleges that Mr Rycroft appeared 'out of nowhere' and sat at her table in the staff café. Upon seating himself at her table, he began to ask her numerous, inappropriate questions. Again, he asked whether she had a boyfriend, how long she and her boyfriend had been together, where she lived, and where she shopped.
- [44]At this point, the Second Complainant (who barely knew Mr Rycroft) says in her complaint that she found his questions "weird" and that they made her feel uncomfortable.
- [45]In his formal response to the show cause, Mr Rycroft denies the conduct alleged by the Second Complainant entirely. In particular, he denies that he asked the Second Complainant if she had a boyfriend and whilst his response is that he 'does not recall' having a conversation with the Second Complainant at the café (which I note is not strictly a denial) he goes on to say that he certainly did not have a conversation with her about the topics that she alleges.
- [46]In the circumstances, again confronted on this occasion with two very different accounts, the decision-maker preferred the account of the Second Complainant. So do I. For all of the reasons that I outlined above in relation to the complaint by the First Complainant, the absence of corroborating testimony does not preclude a decision-maker (or me) from concluding that the conduct occurred on the balance of probabilities.
- [47]I am particularly influenced by the fact that there is no evidence or suggestion that the Second Complainant had a motive to concoct such allegations. I am also influenced by the fact that the Second Complainant 's complaint is very precise and very clear in that she alleges, amongst other things, that Mr Rycroft asked her if she had a boyfriend. This is highly unlikely to be an error or misunderstanding, particularly given that Mr Rycroft denies ever asking the question.
- [48]Further, the allegation made by the Second Complainant bears a striking and disturbing similarity to the complaint of the First Complainant. The decision-maker is not applying a criminal standard of proof. While similar fact evidence in any context ought to be treated with caution, I see no reason why it cannot be fairly relied on in a show cause process. This is especially so where it is compelling and points to a pattern of inappropriate behaviour complained of by two entirely separate and independent complainants.
- [49]I consider that the decision-maker was entitled to prefer the evidence of the Second Complainant in these circumstances. Again, there is no suggestion or evidence that the Second Complainant was motivated to concoct her account of Mr Rycroft’s conduct. It follows, then, that I consider the decision to substantiate allegation 3 to be fair and reasonable.
Allegation 4
- [50]In respect of allegation 4, the allegation is that:
Mr Rycroft approached the First Complainant and attempted to engage her and called her "darl".
- [51]In his formal response to the show cause process, Mr Rycroft has admitted calling the First Complainant "darl". In his show cause response, he simply repeated and relied on his earlier response to allegation 2, which includes this admission.
- [52]In those circumstances the conclusion of the decision-maker to substantiate allegation 4 was the only conclusion open to the decision-maker. It follows that the conclusions was fair and reasonable in my view.
Allegation 5
- [53]In respect of allegation 5, the allegation is that:
Mr Rycroft was cleaning a female locker room and failed to use appropriate signage.
- [54]The particulars of the complaint are that the First Complainant and her (female) colleague entered the women's locker room and found Mr Rycroft in there wiping the sinks. There was no sign or warning outside the locker room that Mr Rycroft would be inside. the First Complainant and her colleague were disturbed to find Mr Rycroft in there.
- [55]Mr Rycroft admits that he was in the locker room. He says however, that there are no signs that he could use for the purposes of warning female patrons that he was in the female locker room and ultimately, in his response, he couldn't see any particular problem with his conduct given that there were no policies or procedures dictating how he should act in those circumstances.
- [56]I am prepared to accept there was a lack of signage or appropriate signage available for Mr Rycroft to place outside the entry way to the locker room. I am also prepared to accept, based on responses from the health service representative in the hearing on 8 April 2021, that there is no formal policy or procedure requiring a male cleaner to place a warning sign or some other method of warning at the entry to the female locker rooms or toilets and vice versa.
- [57]I am not prepared however, to accept that Mr Rycroft was oblivious to basic social convention and that e.g. his unannounced presence in a female locker room would cause some alarm for women entering. I am also unconvinced that Mr Rycroft would not be sufficiently socially aware that he ought to take steps to advertise his presence in advance to any women about to enter the locker room for example, by placing his cleaning trolley in the entryway.
- [58]I note, in response to certain questions asked today, that the cleaning trolley was in close proximity to the locker room. There is no reason then why Mr Rycroft simply could not have wheeled it across and placed it at the entry to the locker room to alert entering women to his presence.
- [59]Given that Mr Rycroft admits that he was there, and given he also admits that he took no steps to advertise his presence in the ladies' locker room, I consider the finding of the decision-maker was open on the facts. It follows that I consider the finding to substantiate allegation 5 is fair and reasonable.
Allegation 6
- [60]In relation to allegation 6, the allegation is that:
Mr Rycroft inappropriately entered resus room 6 while staff were working on a medically unstable patient.
- [61]The allegation made by the First Complainant is that Mr Rycroft entered the resus cubicle unannounced to empty a bin at a time when the First Complainant and another staff member were treating an unstable and elderly patient. I note from particulars to the allegation, that the curtain to the resus cubicle was only partially open.
- [62]In respect of this complaint, a statement was obtained from the First Complainant's colleague who was also in the resus room (the Third Complainant). The Third Complainant recalls the incident somewhat but did not consider the conduct of Mr Rycroft unusual.
- [63]Mr Rycroft does not dispute that he entered the room through a partially drawn curtain at a time when a patient was being treated. His purpose for entering the room was to empty bins.
- [64]Regardless of the view of the Third Complainant, the uninvited entry through a partially drawn curtain into a resus cubicle, at a time when a patient was being treated, is highly improper. The opinion of the Third Complainant is ultimately irrelevant, given the significant breach of patient privacy by Mr Rycroft, whose only task in the room at the time was to empty bins. I cannot understand (and Mr Rycroft cannot satisfactorily explain) what the urgency was and why that could not have waited until a more appropriate time.
- [65]In the circumstances, Mr Rycroft's response to the show cause was to the effect of, 'if the Third Complainant had no problem with it, then I’ve got nothing to answer for'. In my view, the admitted conduct of Mr Rycroft left entirely open to the decision-maker the conclusion that allegation six was substantiated.
- [66]It follows in the circumstances that I regard the decision to substantiate allegation six, as fair and reasonable.
Allegation 7
- [67]In respect of allegation seven, the allegation is that:
Mr Rycroft impeded clinical workflow when he blocked the access door to the medication room.
- [68]It is alleged that Mr Rycroft unnecessarily entered a small and crowded medication room and, in the performance of his duties emptying rubbish bins, he blocked the door whilst emptying these bins. Mr Rycroft in his response has described his actions on the day in question and his description is a fairly consistent description with the usual duties of a cleaner.
- [69]There is no suggestion from the respondent that he was not supposed to be cleaning or emptying bins in that room. There is no suggestion that his presence in that room was in any way inappropriate or not a proper part of his duties.
- [70]In those circumstances I cannot see how the decision-maker could find this particular allegation to be substantiated. In the circumstances, I find that the decision to substantiate allegation seven is not fair and reasonable.
Proposed penalty
- [71]The decision that is the subject of the appeal includes the substantiation of the seven allegations but also includes the decision to propose disciplinary action in the form of termination of employment and, for completeness, I will address the proposed penalty as well.
- [72]Notwithstanding my decision regarding allegation 7, the remaining allegations 1 to 6 point to a disturbing and serious pattern of conduct by Mr Rycroft. The allegations that are substantiated on the evidence point to repeated breaches of the privacy of vulnerable patients, including a young, unconscious, semi-naked female. They also point to repeated inappropriate conversations with at least two female co-workers and conversations which, in my view, have a disturbing feature to them in where Mr Rycroft queries where the women live, where they shop and in one case, whether the woman in question had a boyfriend.
- [73]Notwithstanding that allegation seven cannot be substantiated, the proposal of termination of employment in the context of the remaining allegations is entirely appropriate. It follows that I regard the proposal of termination of Mr Rycroft’s employment in these circumstances to be fair and reasonable.
Appellant's submissions regarding unfairness
Managing Workplace Investigations: a practical guide for the Queensland public sector
- [74]Before making orders, I turn to some other matters raised by Mr Rycroft in his reply submissions that I mentioned earlier with respect to the submissions of the parties. In submissions in reply filed on 10 February 2021, a number of matters were raised by Mr Rycroft through this representative. In particular, I wanted to deal with two of them.
- [75]Firstly, it has been submitted that there was some unfairness that flowed in the course of the show cause process because of an alleged failing of 'separation of investigator and decision-maker'. On further consideration the submission appears to be about a failure by the health service to comply with the 'Managing Workplace Investigations: a practical guide for the Queensland Public Sector' ('the Guide'). Mr Rycroft makes a submission that the health service failed to follow the Guide.
- [76]I have had regard to the Guide as it was attached to the material supplied to the Commission. It is a guide. It is not a directive, it is not a form of binding policy. While it provides useful and detailed information about the conduct of investigations, I cannot identify that it is anything other than a recommended 'best practice' insofar as procedures for the conduct of investigations.
- [77]In any event, whether it is binding or not, or whether there are in fact departures from it or not, the bulk of the conduct that makes up the allegations has been admitted by Mr Rycroft.
- [78]I can identify no prejudice or unfairness in the process undertaken. The real point of difference between the parties is the way in which Mr Rycroft characterises his behaviour. He says that his conversations with the women in question were innocent or friendly. He says that this conduct in entering cubicles where patients were being treated was legitimate, and the health service says otherwise. Having independently considered the facts available to decision maker, I agree with the conclusions reached by the decision maker.
Separation of investigator and decision maker
- [79]As to the separation of the investigator and the decision-maker, I must confess to being a little confused by the submission. The submission deals with an investigation being conducted by a Mr Peter King who tasked staff member by the name of Grace Davey to conduct interviews. The decision-maker is a Ms Peel.
- [80]I cannot identify, with respect to the show cause process and the investigation accompanying it, any clear or obvious breaches of procedural fairness. If there are any, they are likely to be mere blemishes on the process and of no consequence to the overall procedural fairness owed (and given) to Mr Rycroft.
Previous reprimand
- [81]Secondly, there is a submission made with respect to the health service providing in their submissions, a copy of a previous reprimand issued to Mr Rycroft. The previous reprimand, which I understand was not challenged by Mr Rycroft, deals a series of allegations of other, entirely different, inappropriate behaviours by Mr Rycroft in the workplace. I note that those allegations relate to inappropriate physical contact with patients and staff members.
- [82]The submission by Mr Rycroft is entirely correct. A previous reprimand is of no relevance and cannot be taken into account by me in my determination with respect to the review of the decision that is the subject of this appeal.
- [83]I have not had regard to that the previous reprimand when evaluating the fairness and reasonableness of the decision. I would simply add, however, that whilst it is not relevant to my decision, the previous reprimand is a matter that is entirely relevant to the decision of the health service when considering whether to terminate Mr Rycroft’s employment.
Order
- [84]In all of the circumstances I make the following orders:
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld):
- The decisions to substantiate allegations one to six is confirmed;
- The decision to substantiate allegation seven is set aside and substituted with a decision that allegation seven is not substantiated; and
- The decision insofar as it proposes termination of Mr Rycroft's employment is confirmed.