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  4. Renner v State of Queensland (Queensland Health) - [2021] QIRC 179

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Renner v State of Queensland (Queensland Health)[2021] QIRC 179

Renner v State of Queensland (Queensland Health)[2021] QIRC 179

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Renner v State of Queensland (Queensland Health) [2021] QIRC 179

PARTIES:

Renner, Martha

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2020/447

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

28 May 2021

MEMBER:

Power IC

HEARD AT:

On the papers

OUTCOME:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

INDUSTRIAL LAW – Public Service Appeal – allegations substantiated – consideration of penalty – penalty imposed was fair and reasonable.

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 179A, 187, 188 and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Reasons for Decision

Introduction

  1. [1]
    Ms Martha Renner ('the Appellant') is employed as an Early Intervention Clinician ('EIC') in the Child Health Service, Child and Youth Community Health Service ('CYCHS'), Children's Health Queensland Hospital and Health Service ('CHQ') by the State of Queensland (Queensland Health) ('the Respondent').
  1. [2]
    By letter dated 10 December 2020, the Respondent informed the Appellant of the decision to impose a reprimand and reduction of remuneration level from pay point HP4.4 to HP4.1 for 12 months pursuant to s 188(1) of the Public Service Act 2008 (Qld) ('the PS Act').
  1. [3]
    By appeal notice filed on 24 December 2020, the Appellant appealed against the decision, pursuant to s 194(1)(b)(i) of the PS Act.

Appeal principles

  1. [4]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that the section applies to a public service appeal made to the Commission. Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [5]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [6]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision to impose the disciplinary penalty of reprimand and reduction of remuneration level was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [7]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Background – substantiation of allegation

  1. [8]
    On 3 July 2020, the first notice to show cause ('show cause one') was issued and was received by the Appellant on 15 July 2020.
  1. [9]
    On 28 July 2020, the Appellant's response to show cause one was received by the Respondent.
  1. [10]
    On 15 September 2020, the second show cause notice ('show cause two') was issued to the Appellant. This decision substantiated the allegation and proposed a disciplinary penalty.
  1. [11]
    On 28 September 2020, the Appellant's response to show cause two was received by the Respondent.
  1. [12]
    On 15 December 2020, the Appellant was issued with the decision on disciplinary action dated 10 December 2020 in which Mr Craig Kennedy, Acting Executive Director, Community, Mental Health and Statewide Services, CHQ, stated the following:

I refer to my letter dated 9 September 2020 in which I afforded you seven calendar days to show cause why the following disciplinary action should not be taken:

  • a reprimand; and
  • reduction of remuneration level from paypoint HP4.4 to HP4.1 for 12 months.

The disciplinary action was proposed in relation to the following allegation:

Allegation one

It is alleged that you have failed to follow a lawful and reasonable direction to comply with the Care Coordination model of care, as issued to you in correspondence of 27 April 2020, from Ms Joanne Allen-Keeling, then acting Divisional Director, Child and Youth Community Health Service, Children's Health Queensland (CHQ).

  1. [13]
    The 'decision' for the purposes of this appeal is the decision by the Respondent to impose the disciplinary action as outlined above.

Grounds of appeal

  1. [14]
    In the appeal notice, the Appellant appeals the disciplinary findings on the basis that the allegations are not capable of having been substantiated, and the disciplinary penalty on the basis that it is disproportionate to the circumstances.
  1. [15]
    The Appellant subsequently provided the following submissions clarifying the grounds of appeal:

… my appeal is not in response to the second show cause notice – my appeal is in response to Mr Kennedy's decision in relation to disciplinary action in his letter dated 10 December 2020 and the decision to reduce my classification level.

  1. [16]
    The Appellant included in the appeal notice, submissions objecting to the disciplinary finding. These submissions are summarised as follows, that:
  • the Appellant complied with the direction of 28 April 2020 by entering clients into the Care Coordination spreadsheet and did not wait until the disciplinary process commenced;
  • the date of 21 September 2020 should not be considered as a cut-off date by which reviews had to be initiated or organised. Client reviews were scheduled to be completed in the month of September 2020 and were completed in that month;
  • the disciplinary action appears to be based on an interpretation of the model of care that requires adherence to rigid timeframes. It was never the Appellant's intention not to add clients to the list or to conduct client reviews, however, this occurs as and when appropriate to her role as a Social Worker;
  • during the course of the year, the implementation of the model of care requirements has evolved. For example, clients were to be opened after the third visit, however, the Appellant has now been instructed to add clients to the list after the first visit;
  • the timeframes for entering clients in the Care Coordination spreadsheet was unreasonable and having a high client workload impacts on other duties;
  • the mistake made by the Appellant when reporting reviews with EIC colleague and Nurses was not to give the discussion a separate heading on the system, that is, 'Care Coordination Review' and to record the notes under her own entry; and
  • client reviews scheduled for September 2020 and December 2020 have been completed and are on the Care Coordination spreadsheet with the Appellant's clients entered, opened and reviewed.
  1. [17]
    The Appellant submitted the following reasons for the appeal with respect to the disciplinary penalty, that:
  • the purpose of the disciplinary action is to minimise or eliminate risk. This is not achieved by this penalty as the Appellant is now compliant with the direction of 27 April 2020 as acknowledged by Mr Kennedy;
  • the allegation will not have an adverse impact on the Appellant's ability to perform the duties of her position because she is a professional and will continue to meet the needs of clients as determined by the model of care;
  • the penalty decided upon is unfair and unreasonable and will have long term, significant and far reaching detrimental effects on the Appellant and her family;
  • the Appellant details her working history as a social worker following graduation in 2001 and submits that there have been no complaints about the level of care provided to clients and the community. The Appellant submits that she has over 50 compliments from clients who are very satisfied with the level of clinical care and support provided;
  • the Appellant submits that she takes her work seriously and comes to work to provide the best care she can for her clients. The Appellant submits that she does not disrespect her colleagues but questions the benefits of what is asked of her;
  • with respect to financial stress and hardship, the Appellant submits that she relies on her income to pay bills, provide food and shelter and to plan for a comfortable retirement. The decrease in salary from HP4.4 to HP4.1 is $319 per fortnight ($8,330 per year). The Appellant submits that this decrease to her wages will severely impact on her ability to pay rates and utilities, to make mortgage repayments, and to meet family commitments and provide support to her extended family members overseas. It will also have a longer term and cumulative adverse effect on her superannuation benefit and retirement income;
  • the Appellant submits that a financial penalty will only serve to increase an already stressful situation;
  • the Appellant notes that the proposed disciplinary action of reduction of remuneration level constitutes 'serious disciplinary action' as defined within s 179A(4) of the PS Act and this may cause difficulties should she seek to be employed elsewhere in the public service;
  • with respect to the professional impact of the disciplinary penalty, the Appellant states that she has worked very hard to get to where she is now and any professional penalty (reprimand) will be psychologically and financially damaging to her;
  • the Appellant states that she is an effective and efficient clinician as evidenced by the volume of positive 'Tell Us How We Are Doing' responses from the clients she supports;
  • the Appellant submits that any professional penalty will impact on her standing with her colleagues, with the clients she supports, the professional knowledge that she disseminates, her contribution to the work environment and her work with non-governmental organisations, due to the hidden burden this will have on her; and
  • the Appellant submits that she would accept the imposed penalty as reasonable if she were currently non-compliant with the direction of 27 April 2020. However, the desired outcome of the direction has been achieved in that she is complying with the Care Coordination model of care and that compliance began before the commencement of the show cause process. On this basis the Appellant submits that the imposed penalty is punitive, not appropriate and not proportional.

Submissions

  1. [18]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Respondent's submissions

  1. [19]
    The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's appeal notice. In summary, the Respondent submits that:
  • the Respondent adheres to the Care Coordination model of care, the requirements of which are outlined in the Care Coordination – Service delivery model for management of complex care in the Child Health Service Procedure ('the Procedure');
  • a Team Brief was undertaken on 8 November 2018 regarding the model of care whereby all child health service employees were informed that families who continue to be seen by the EIC on an ongoing basis (after the third session), should be 'opened' to Care Coordination with the Clinical Nurse Consultant ('CNC'), and regular Care Coordination reviews should take place as outlined in the Procedure;
  • on 27 April 2020, Ms Joanne Allen-Keeling, then acting Divisional Director, CYCHS, issued the following direction to the Appellant:

"You [the Appellant] are directed to actively participate in the Care Coordination model of care. This includes entering all of your allocated clients into the Care Coordination spreadsheet on SharePoint in a timely manner and actively participating in the Care Coordination meetings. In relation to your existing clients, you are directed to enter all relevant data into the Care Coordination spreadsheet on SharePoint, within the following timeframes:

  • all clients are to be added to the 'follow-up list' by close of business on 5 May 2020; and
  • any clients requiring Care Coordination review or opening to Care Coordination are to be undertaken with the Clinical Nurse Consultant (CNC) or Ms Foster by close of business on 8 May 2020."
  • shortly after receiving the direction on 27 April 2020, the Appellant advised Ms Elizabeth Peters, Nurse Unit Manager, Coorparoo Child Health Service, the Appellant's Line Manager, that she did not intend to comply with the direction;
  • on 18 May 2020, 10 days after the time frame prescribed for the compliance with the direction had passed, Ms Peters met with the Appellant to ask her if she required additional time to comply with the direction. In response, the Appellant refused to comply and stated that she was there for "her clients and not for a process";
  • on 20 May 2020, an audit of the Appellant's client list was undertaken, of the 23 clients on the Appellant's client list, nine were significantly overdue for review, and no reviews had been conducted since the direction was issued on 27 April 2020;
  • on 8 June 2020, Ms Peters again met with the Appellant to advise her that she had scheduled working time in ESM (the booking platform) for the Appellant to complete the 'opens' and reviews as per the direction on 27 April 2020. The Appellant advised Ms Peters that she did not want to complete the reviews or 'opens'. The Appellant did not use the scheduled time to comply with the direction;
  • on 12 June 2020, a second audit of the Appellant's client list was completed and again, no reviews had been conducted since the direction was issued on 27 April 2020;
  • in the Appellant's response to the show cause one, the Appellant submitted:
  1. that the Care Coordination model was obsolete and no longer necessary for EICs;
  2. asserted that she participates in monthly one-to-one clinical supervision (which all clinicians are required to do and is separate to Care Coordination), does peer reviews with her EIC colleague and has regular discussions with Nurses who refer clients;
  3. that she completed peer reviews with her EIC colleagues and had regular discussions with Nurses who had referred clients and that this simply hasn't been captured properly in the ieMR system; and
  4. that she complied with the direction in stating that she entered her clients into the Care Coordination spreadsheet the day after the direction was issued on 28 April 2020 and that she did not consider that any of her clients required opening or review until September 2020.
  • Mr Kennedy considered all the evidence available and notably considered the following:
  1. the Procedure and Team Brief outline that families who continue to be seen by the EIC on an ongoing basis (after the third session), should be 'opened' to Care Coordination with the CNC, within five working days of appointment;
  2. there were clients who had been seen for in excess of three appointments (up to 24), without being 'opened' or reviewed, in accordance with the Procedure;
  3. as outlined in the Procedure, under 'Clinician Responsibilities', the Appellant was required to use the Care Coordination Review form to complete that reviews;
  4. that on three separate occasions after the direction was issued, the Appellant refused to undertake any 'opens' or reviews;
  5. Ms Peters' scheduled time in the booking system so that the Appellant could complete the opens and reviews as required, in compliance with the direction. The Appellant did not use the time for that purpose and did not raise client workload as a barrier to complying with the direction;
  6. two separate audits were undertaken to determine whether the Appellant had followed the direction, both demonstrating the Appellant had failed to commence and conduct reviews in accordance with the direction and the Procedure;
  7. there was no evidence on any CHQ system that the CNC or EIC Lead has access to, that the Appellant had completed any reviews in accordance with the Procedure; and
  8. Whilst the Appellant entered clients into the Care Coordination spreadsheet, she did not conduct an 'open' with the CNC or EIC Lead prior to doing this, as required by the direction or the Procedure.
  • Mr Kennedy determined the Appellant had, without reasonable excuse, contravened a direction given to the Appellant as a public service employee by a responsible person and therefore substantiated the allegation on the balance of probabilities.
  1. [20]
    The Respondent submits that the decision to substantiate the allegation due to the ongoing refusal and failure to follow the direction and that the decision that the Appellant is liable for disciplinary action under the PS Act is a fair and reasonable decision.
  1. [21]
    The Respondent notes that the Appellant is seeking to appeal the decision to substantiate the allegation in show cause one and the disciplinary penalty imposed, and makes the following jurisdictional objection:

The Appellant was informed that the allegation had been substantiated in show cause two dated 15 September 2020. In accordance with the Queensland Industrial Relations Commission (QIRC) Public service appeals guide, the Appellant had 21-days after the decision was received to submit her appeal. The Appellant was informed of this 21-day timeframe and given details of where to find more information about the appeals process, in the correspondence.

The Respondent submits that the Appellant has exceeded the 21-day time frame for appealing the decision to substantiate the allegation, and respectfully submits that the Commission should not consider this decision in hearing the Appellant's application.

  1. [22]
    The Respondents submits that the decision on penalty was fair and reasonable for the following reasons:
  1. the Appellant's non-compliance with the Care Coordination Model of Care had the potential to impact on patient care;
  2. the Appellant has failed to respond to the concerns about patient risk;
  3. the Appellant was given seven opportunities over a four-month period to comply with the requirements of the Care Coordination model, prior to the disciplinary process being initiated.
  4. the Appellant has taken limited accountability for non-compliance with the model of care and the direction, and took no action to complete the opens and reviews within the prescribed time frame of 8 May 2020, during the opportunities she was given after the direction or until after the serious disciplinary action was proposed in these second show cause; and
  5. the Appellant has previously been warned in relation to her failure to follow a lawful and reasonable direction.
  1. [23]
    The Respondent submits that the imposition of a reprimand alone would not have been appropriate or proportionate given the serious nature of the substantiated allegation and that the Appellant had been warned previously in relation to complying with lawful and reasonable directions.
  1. [24]
    The Appellant was remunerated to complete all duties and responsibilities outlined in her role description. As outlined in show cause one, a key component of the Appellant's role is linked to compliance with the model of care. As the Appellant did not perform key components of the role she was being remunerated for, the Respondent submits that a reduction in remuneration is an appropriate disciplinary action.
  1. [25]
    The Respondent submits that based on the Appellant's behaviour and responses throughout the show cause process and as recently as her submission to the Commission, the Appellant does not appear to understand the serious nature of her conduct. The Respondent submits that the imposition of the disciplinary penalty is appropriate to convey the seriousness of the matter, the risk to patient care, importance of compliance with the model of care and to deter the Appellant from acting in a similar nature in the future, in circumstances where a non-disciplinary warning and local management action had not achieved this. 

Appellant's submissions in reply

  1. [26]
    The Appellant, in accordance with the Directions Order, filed submissions in reply to the Respondent's submissions. In summary, the Appellant submits that:
  • the Appellant was unaware that the decision to substantiate the allegation was appealable;
  • in regard to the file note, Ms Peters' subjective interpretation of events and the context of the interaction is important. The interaction was not a meeting, it was two encounters that lasted no more than a few minutes. The second encounter, after the Appellant read the letter, was distressing and the Appellant cannot recollect the exact words she used. The Appellant was not aware a file note would be made and was not provided with the opportunity to review the file note in order to confirm its accuracy. The Appellant does not recall refusing to comply with the direction;
  • the reviews had been conducted but were recorded against the relevant Nurse. At the time the Appellant was not aware of the audit or its findings and was not provided with any opportunity to provide feedback, correct any inaccuracies or misinterpretation of the data or to correct the way in which reviews were recorded;
  • in none of the Respondent's materials does the Appellant state that the Care Coordination model was obsolete and no longer necessary for EICs. The Appellant questioned the value of the Care Coordination reporting process for EIC's interventions and asked the Nurse Unit Manager to support change;
  • the Respondent's annexures do not contain a submission that peer reviews have not been captured properly in ieMR;
  • it is not the case that she did not 'consider' that any of her clients required opening or review until September 2020. It was the case in fact that there were no new clients to go on the list and that all reviews were scheduled for September 2020;
  • the Respondent states that Mr Kennedy considered all the evidence available including the Appellant's response to show cause one. However, the Respondent has not included positive client feedback about the level of care related to them and their families, psychological and emotional well-being;
  • the Team Briefing, which is an update of the Care Coordination model relevant to EICs, has 'opening' of clients with the CNC to occur after the third client consultation, but it does not require a particular timeframe in which that is to occur;
  • irrespective of her misgivings about the process and the subjective words that were used in conversations recorded on file notes, she did comply with the direction;
  • records of completed reviews have been recorded in ieMR throughout the period that the Care Coordination has been in place. CNC and EIC Lead have access to the ieMR as does any other authorised person within CHQ;
  • there has been no adverse impact on client care of a failure to respond to client risk. The Appellant submits that there has never been any suggestion from her peers, colleagues or supervisors or external agencies that her client's safety has been compromised because of the way in which she carries out her role;
  • an example of addressing client risk is a case on 7 May 2020 mentioned in show cause one and the Appellant's response to it. The CNC and Nurse Unit Manager were informed about possible risks to this client, interventions applied, and follow-up necessary. The CNC acknowledged the Appellant's interventions by recording that in ieMR system on 12 May 2020 at 15.43pm; and
  • she carries out her role with professionalism and diligence as evidenced by letters from her clinical supervisor, colleagues, an external stakeholder and direct feedback from clients.
  1. [27]
    The Appellant further outlined the key components of her role as described in the role description and disputes the statement that she did not perform a key component of her role.

Consideration

  1. [28]
    Consideration of an appeal of this kind requires a review of the decision to impose disciplinary action pursuant to s 188(1) of the PS Act to determine if the decision was fair and reasonable in the circumstances. This follows a decision by the Respondent that grounds exist for the Appellant to be disciplined pursuant to s 187(1)(d).
  1. [29]
    I note the Appellant's submission that the appeal is against the imposition of the disciplinary penalty only. The Respondent correctly submits that the decision to substantiate the allegation (disciplinary finding) could have been appealed as a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act within the 21 day period following that decision. Although the particulars of the allegation can be considered as part of the consideration as to the reasonableness of the penalty, I accept that the allegation has been substantiated by the Respondent, with this appeal solely relating to the issue of the disciplinary penalty.
  1. [30]
    On 27 April 2020, Ms Allen-Keeling issued the Appellant with correspondence outlining a lawful direction that the Appellant comply with the requirements of the Care Coordination model of care and provided timeframes for this to occur. The action was undertaken after the Appellant articulated her intention to not comply with the model and stated that she would not be completing the relevant tasks, as recorded by Ms Peters in a file note. Ms Allen-Keeling noted in the letter that the Appellant had not presented clients for discussion at the monthly Care Coordination meetings and that as of 28 February 2020, only four of the approximately 52 clients allocated to the Appellant were visible on the Care Coordination spreadsheet.
  1. [31]
    Ms Allen-Keeling expressed her concern that, in the event the Appellant was unexpectedly unable to attend the workplace, it would take a considerable amount of time and effort for management to identify the Appellant's client list and to ensure continuity of care for clients. This was identified as presenting a considerable risk to both patients and employees of the Child Health Service.
  1. [32]
    The Appellant disputed that she did not follow this lawful direction and maintained that the Procedure was complied with in accordance with this direction. The Respondent, however, reasonably concluded that this was not the case as there was no completed Care Coordination review forms saved on the ieMR for any of the clients listed in the audits and no evidence on any CHQ system to which the CNC or EIC Lead has access. The Appellant refers to ieMR records which were annexed to the submission, however, the date upon which these records were generated is unclear.
  1. [33]
    The Appellant submits that her notes were placed under Nurses' records or that they were recorded but not titled 'Care Coordination'. The Appellant states that she did not wait until the disciplinary process commenced to comply with the direction of 28 April 2020. The evidence suggests that the Appellant complied partially with the direction prior to the disciplinary process commencing. In my view, a professional clinician at the HP4 level is capable of adhering to the basic requirements as outlined in the Care Coordination Procedure. This Procedure document outlines prescriptive processes to be followed by the clinician. The document outlines clear expectations of clinicians through checklists and process flowcharts leaving little ambiguity as to the requirements of the model. I accept the Appellant's submission that some of the processes may have changed since its introduction, however, the Procedure was still required to be followed pursuant to the lawful direction of the Respondent. In an environment in which the Respondent has felt compelled to issue a written direction, a reasonable response by the Appellant would have been to ensure that her actions were in compliance with the procedural requirements of the direction.
  1. [34]
    Early in this process, the Appellant expressed her personal disagreement with the model's procedural requirements to her colleagues, advising Ms Peters that she would not comply with the model and would not be completing the associated tasks. The Appellant submits that she does not recall refusing to comply with the direction, however, I accept the file note written by Ms Peters as reliable on the basis that it was made contemporaneously.  It appears that the Appellant's failure to comply with the lawful direction was more plausibly a result of her personal opposition to the process than a question of workload or misunderstanding the requirements.
  1. [35]
    Following show cause one, the Respondent considered the Appellant's submissions and determined that the allegation was substantiated. The Respondent proposed in show cause two, disciplinary action of a reprimand and reduction of remuneration level from pay point HP4.4 to HP 4.1 for 12 months.
  1. [36]
    After consideration of the Appellant's response to show cause two, the Respondent determined that the proposed penalty will be imposed. The Respondent demonstrated that the Appellant's submissions were considered, acknowledging that she had 'partially' complied with the direction by adding clients to the follow up list. However, the Respondent determined that the Appellant had still not completed or documented any Care Coordination review nor 'opened' any clients to Care Coordination with the CNC or EIC Lead, as directed.
  1. [37]
    The Appellant submits that she did not state that the Care Coordination model was obsolete and no longer necessary for EICs, as submitted by the Respondent. The Appellant's statement in the response to show cause one was the following:

My belief and advocacy may have got me to this position because since the commencement and integration of ieMR and ESM the coordination list and process was obsolete or no longer necessary for EICs as everyone who has access can see the clients allocated to individual clinicians scheduled in their electronic diaries, and see all interventions undertaken in their notes. [emphasis added]

  1. [38]
    The Appellant referred to 'the coordination list' as being obsolete rather than the 'Care Coordination model'. I do not consider that anything turns on this difference as the direction referred to completion of the coordination list as part of the model.
  1. [39]
    The Appellant submits that the penalty is harsh and unreasonable, describing the allegation as being minor in nature and not warranting the proposed penalty. It is clear from the Appellant's submissions to the show cause notices that she does not view the allegation as serious, stating, "I apologise if adding these names to a separate coordination list without permission is grounds for punishment". Although it may be difficult to appreciate from an individual perspective, organisations can only function when employees fulfil their roles in accordance with lawful directions. It is not for the employee to determine that they will only follow directions that they consider to be of significance. A secondary aspect to the nature of the allegation is that the direction was not minor in nature. Compliance with a consistent model of care procedure is critical to ensuring that client care notes can be obtained and reviewed in the same manner across the service.
  1. [40]
    I accept the Respondent's submission that refusal to comply with the direction posed a genuine risk to patient care. Consequently, the Appellant's failure to follow the lawful direction could not be characterised as minor in nature. The Appellant views her primary role as supporting clients, however, the ability to ensure that clients can continue to receive consistent and appropriate support in the Appellant's absence depends on the completion of the required notes and adherence to consistent procedures. This task may not be the single focus of the role, however, I accept that it is a crucial task to ensure consistency and minimise client risk.
  1. [41]
    To be clear, it was entirely reasonable for the Appellant to voice her concerns regarding the use of a particular model to those in management roles through appropriate feedback mechanisms. It is not, however, reasonable to ignore or only partially comply with a lawful and reasonable direction because of personal disapproval of the policy decision regarding the model in use.
  1. [42]
    The Appellant disputes the statement that she did not perform a key component of her role. The role description as attached to the Respondent's submissions outlines a number of key responsibilities which include the following:
  • Maintain accurate and confidential records of client assessments, therapy/interventions and reports in keeping with the medio-legal requirements of the service.

…

  • Utilise high-level communication, consultation and conflict resolution skills to work collaboratively in a multidisciplinary team and promote the role for Early Intervention Clinician to effect optimal health outcomes for clients/families.
  • Utilise a trans-disciplinary approach to provide family-centred, coordinated and seamless services to meet the complex needs of children and their families.
  • Contribute, as part of the work unit, to capacity building, teaching and training with key stakeholders, colleagues and service providers. 
  1. [43]
    On the basis of the above responsibilities, it was reasonable for the Respondent to determine that failure to follow the direction to comply with the requirements of the Procedure was inconsistent with those key responsibilities.
  1. [44]
    I note the Appellant's proposal of an alternative penalty of a 'warning notice' in her response to show cause two. On 26 October 2016, a non-disciplinary warning was issued to the Appellant for a similar matter where she had not complied with a lawful and reasonable direction to attend meetings to discuss workplace issues and behaviour. The Appellant was informed at that time that this non-disciplinary warning may be taken into consideration should similar behaviour occur in the future. The evidence of previous failures to follow lawful direction lends weight to the Respondent's submission that a reprimand would not be a sufficient penalty in these circumstances.
  1. [45]
    The Appellant submits that the penalty will decrease her wages which will severely impact on her ability to meet her financial commitments and will have an adverse effect on her retirement income. The Appellant also notes that the proposed disciplinary action of reduction of remuneration level constitutes 'serious disciplinary action', as defined within s 179A(4) of the PS Act and this may cause difficulties should she seek to be employed elsewhere in the public service.
  1. [46]
    I accept that the Appellant will be impacted financially as a consequence of the reduction in remuneration, however, I note that this penalty is for 12 months only. The consequences for the Appellant's future employment in the public service may be impacted on the basis that the action constitutes 'serious disciplinary action' within the PS Act, however, the previous warning has not had the desired impact of ensuring that the Appellant follow lawful directions in the workplace. The Respondent correctly noted that the disciplinary action was appropriate when a non-disciplinary warning and local management had not achieved this outcome.  
  1. [47]
    The Appellant's submission that the purpose of disciplinary action is to minimise or eliminate risk is not entirely accurate. The purpose of disciplinary action also extends to providing a deterrent to employees from engaging in similar conduct in the future. The fact that the Appellant may be currently compliant with the direction does not address the original failure to follow the lawful direction.
  1. [48]
    I note that the Appellant submitted a number of references and evidence of client feedback as part of this appeal. These documents suggest that the Appellant performs her role to a high standard and is generally well regarded. The Appellant submits that the Respondent may not have considered positive aspects of her work in reaching the decision. The nature of disciplinary action is that it is imposed as a consequence of a disciplinary finding. Whilst positive work performance generally may be considered, this does not outweigh the disciplinary finding. Even the highest performing employees may be subject to disciplinary action if they fail to follow lawful direction from their employer. It is unfortunate that the Appellant finds herself in this situation, however, the Respondent has an obligation to ensure that lawful directions are followed by their employees. Future adherence to the requirements to follow these directions will allow the Appellant to continue working to this high standard in the other parts of her role. 
  1. [49]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[5] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[6]

  1. [50]
    Applying the principles outlined above, I do not consider that the decision to impose a reprimand and reduction in remuneration for a period of 12 months lacks justification in the circumstances. The penalty is, in my view, proportionate to the substantiated conduct.
  2. [51]
    Based on the information before me, I am satisfied that the decision to impose a disciplinary penalty of a reprimand and 12 month reduction in remuneration is fair and reasonable in the circumstances.

Order

  1. [52]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] IR Act s 562B(2).

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] [2019] QSC 170.

[6] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Renner v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Renner v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 179

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    28 May 2021

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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