Hood v State of Queensland (Queensland Health)
[2021] QIRC 186
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- Hood v State of Queensland (Queensland Health)[2021] QIRC 186
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Hood v State of Queensland (Queensland Health)[2021] QIRC 186
Hood v State of Queensland (Queensland Health)[2021] QIRC 186
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hood v State of Queensland (Queensland Health) [2021] QIRC 186 |
PARTIES: | Hood, Bradley John (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2020/378 |
PROCEEDING: | Public Service Appeal – Disciplinary Finding Decision – Fair Treatment Decision |
DELIVERED ON: | 1 June 2021 |
MEMBER: HEARD AT: | Power IC 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 – whether disciplinary finding was fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), s 187 Public Service and Other Legislation Amendment Act 2020 (Qld), s 39 |
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]Mr Bradley John Hood ('the Appellant') has been employed as a NG5(7), Registered Nurse by the Sunshine Coast Hospital and Health Service ('SCHHS') for the State of Queensland (Queensland Health) ('the Respondent') within the Medical Assessment Planning Unit ('MAPU') at the Nambour General Hospital ('NGH') since 16 February 2000.
- [2]By appeal notice filed on 1 December 2020, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act') appealed against the disciplinary finding decision made by Ms Karlyn Chettleburgh ('the decision maker'), Chief Operation Officer, SCHHS, dated 11 November 2020 ('the decision').
- [3]The Appellant has indicated in the appeal notice that he is appealing against a discipline decision, however, a disciplinary penalty has not been imposed on the Appellant in the decision. The decision that is the subject of the appeal is the disciplinary finding to substantiate three of the five allegations with respect to the Appellant's conduct at work as a result of complaints made by two student nurses.[1]
- [4]At this stage of the disciplinary process, the Respondent has made a disciplinary finding and provided the Appellant the opportunity to respond to consideration of imposing a disciplinary penalty of forfeiture of four remuneration increments[2] and a reprimand. This appeal will be taken as a fair treatment appeal pursuant to s 194(1)(eb) of the PS Act relating to the decision to substantiate the allegations and subsequent disciplinary finding.
Appeal principles
- [5]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.
- [6]The appeal must be decided by reviewing the decision appealed against.[3] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[4] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision making process associated therewith.
- [7]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[6] As noted above, the appeal is against a fair treatment decision. Therefore, the issue for determination is whether the decision of the decision maker to substantiate the allegations were 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?
- [8]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- (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 issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.
The substantiated allegations
- [9]The decision outlined reasons with respect to five allegations made against the Appellant. As noted above, only three of the five allegations were substantiated. Given that the Appellant appeals only the substantiated allegations, it is unnecessary for me to consider the allegations that have not been substantiated.
- [10]The substantiated allegations, as outlined in the decision, were:
Allegation One
It is alleged that between 28 January 2020 and 15 February 2020, you acted inappropriately in your interactions with [student nurse one], University Southern Queensland during her placement in MAPU, NGH that may be considered sexual in nature.
The allegation includes, but is not limited to the following:
i. You communicated inappropriately with [student nurse one] during a conversation you held with her on her first shift in relation to the medical condition of your son and the application of cream to your son's penis.
ii. You communicated inappropriately with [student nurse one] on multiple occasions in relation to catheter procedures being carried out by nurses of the opposite sex to the patient.
iii. You inappropriately exposed an explicit photograph of a semi-naked female and made subsequent inappropriate comments.
iv. You referred to [student nurse one] inappropriately when you referred to her as "babe, sugar, honey, darling".
v. You made inappropriate physical contact with [student nurse one] on multiple occasions.
vi. You communicated inappropriately with [student nurse one] during a conversation you held with her in relation to where [student nurse one]'s dog slept.
vii. You made inappropriate comments to [student nurse one] on multiple occasions during general conversation that may be considered sexual in nature.
…
Allegation two
It is alleged that between 28 January 2020 and 15 February 2020, you acted inappropriately in your interactions with [student nurse two], University Southern Queensland during her placement in MAPU, NGH that may be considered sexual in nature.
…
Allegation five
It is alleged that between 28 January 2020 and 16 February 2020 you made inappropriate comments to [student nurse one] about student nurses.
…
Grounds of appeal
- [11]In the appeal notice, the Appellant outlined the following grounds of appeal. In summary, the Appellant contends that:
- the decision maker has relied too heavily on the unwitnessed and unverified derogatory comments attributed to the Appellant by student nurse one, which the Appellant denies;
- the decision maker's determinations exhibit bias as demonstrated by the failure to acknowledge the relevance of several of the Appellant's responses; and
- it was unfair that the decision maker attributed the lack of motive for student nurse one's allegations as being detrimental to the Appellant's credibility.
- [12]The Appellant outlined the following reasons with respect to the particular allegations:
Allegation 1(i)I believe the conversation was appropriate, current, relevant, of interest and in accordance with collegial inclusivity.
Allegation 1(ii)Fails to identify the actual issues i.e. my issue being the non consent/consent of the client (not of the gender performing[sic] the procedure) & the segway for me to highlight my personal views ( based on experience) and how in fact one could assume it may be confronting for a woman if two males were to perform this procedure. At no time was existing policy in question or challenged by me.
Allegation 1(iii)Fails to discern relevance of my clarification of the nature of the photo & its subject - I am only trying to point out the facts & her comments that it only demonstrated contempt is unfair & shows bias.
Allegation 1(iv)Fails to consider that the use of pet names was not exclusively used for the students of which the students were aware.
Allegation 1(v)I deny making any unnecessary physical contact with either of the students
Allegation 1(vi)Shows bias against me…. I believe my question was an acceptable social question to ask (take out the commentary attributed to me).
Allegation1 (vii)Shows a bias against me …
Allegation2An explanation was given to [student nurse two] very early in our shift as to the condition of my eye sight and my requirement to be near a monitor in order to see, the incident she refers to took place much later in the day.
Allegation5Wrong determination. I was only stating facts to the students regards an RNs duties[sic] of care.
Submissions
- [13]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.
Appellant's submissions
- [14]The Appellant, in accordance with the Directions Order, filed submissions in support of his appeal. In summary, the Appellant expanded upon the reasons outlined in his appeal notice and submits the following:
- with respect to allegation one (i), the conversation regarding the Appellant's son's medical condition was:
- a)Current – as it was an event that occurred only the previous day
- b)Relevant – as it was a medical event requiring a half day visitation to the emergency dept. and my son was being cared for by a student nurse.
- c)Of interest- as who would know that "mango sap" could cause such a reaction and who would guess the possible complications of non-circumcision, it highlights the importance of proper hand washing hygiene and leads to questions surrounding the scenario of mango sap coming into contact with a person's eye.
- d)In accordance with collegial inclusivity- we are actively encouraged to include the students into the working group, even to take our breaks together.
- e)Appropriate – I believe it is a common practice to discuss with colleagues in most workplace environments one's children's trials and tribulations, given this was a medical event and we are nurses, I believe the conversation was appropriate.
- the Appellant denies making any sexual references claimed by student nurse one and the Respondent's view that it is an attempt to discredit student nurse one shows bias against the Appellant;
- with respect to allegation one (ii), the Respondent fails to identify the actual issues and fails to see the relevance of the Appellant broaching the scenario of a female being catheterised and being confronted by two males;
- with respect to allegation one (iii), the Appellant believes there is a difference to being exposed to a topless photo to that of a naked photo and the Respondent's statement that the Appellant is showing contempt shows a bias against the Appellant;
- with respect to allegation one (iv), whilst the Appellant agrees that the occasional use of 'pet names' when addressing colleagues is less than professional, the Respondent fails to recognise that student nurses were not singularly referred to in this manner. Additionally, students did not inform the Appellant of their discomfort;
- with respect to allegation one (v), the Respondent showed a lack of insight as to the exact number of shifts worked with student nurse one. The number of shifts being seven shifts, as stated by student nurse one, as opposed to five shifts is relevant as it reduces the amount of time of impact the Appellant could possibly have on the student;
- with respect to allegation one (vi), the Respondent's inability to find evidence to suggest student nurse one had anything to gain by purposely sexualising her version of events should not detract from the Appellant's own credibility as the Respondent failed to afford the Appellant the same consideration amounts to bias. When the communication is taken in context, the conversation was not inappropriate;
- with respect to allegation one (vii), the Respondent failed to acknowledge that the Appellant's perspective is entirely different to student nurse one's unsupported false commentary;
- with respect to allegation two, it is unfair to expect the Appellant to reasonably assume that a person is uncomfortable when the person gives no indication of such, especially as the Appellant's own behaviour mirrored the other person's behaviour; and
- with respect to allegation five, the Respondent has been unfair, fails to consider the positive impacts the Appellant may have had on the students and has taken this allegation out of context. The Appellant was merely outlining to the students the broad duties of care involved with being a registered nurse so as to clarify the expectations during placement.
Respondent's submissions
- [15]The Respondent, in accordance with the Directions Order, filed submissions in response to the Appellant's submissions. In summary, the Respondent relies on the decision which provided reasons for the determinations made, with reflections being made upon various versions of events.
- [16]The Respondent further submits that:
- with respect to allegations one (i) and (ii), the conversations were not appropriate and the Respondent rejects attempts by the Appellant to continue to cloak inappropriate conduct under the guise of clinical respectability, despite there being no clinical justification for discussion around the Appellant's son's genitalia, nor was there any need for his commentary regarding unsupported views about the catheterisation;
- whilst there may be contention as to the specific terminology used, it was open to the decision maker to determine who provided the more credible version of events;
- with respect to allegation one (iii), the Respondent does not share the same view of the Appellant that the features and/or identity of the women in the photo lessens the impact the incident had on the complainant, nor detracts from the seriousness of the matter;
- it was open to the decision maker to substantiate allegation one (iv) as the Appellant acknowledges to having used 'pet names' and that it was 'less than professional' to do so;
- with respect to allegation one (v), the Respondent does not share the Appellant's assertion that the exact number of shifts worked with student nurse one has significant weight, particularly as the Appellant admitted to making physical contact with student nurse one;
- with respect to allegation one (vi), whilst the Appellant may deny he was inappropriate when discussing student nurse one's puppy, it was open to the decision maker to find the additional commentary complaint of, involving sexual innuendo, had occurred;
- with respect to allegation one (vii), the decision maker has considered the evidence before her and found that it was more likely than not, that the conduct described by the complainant had occurred;
- with respect to allegation two, the Appellant is a very experienced clinical practitioner who should be well versed in the need for adequate personal space in the workplace. Further:
- (a)there is no issue with the Appellant needing close proximity to a monitor, only to his inappropriate proximity to other persons in the workplace;
- (b)whilst the complaints were raised jointly by the two student nurses, there is no evidence to suggest that there was any ulterior motive;
- (c)the Appellant continues to discount the impact of his conduct on vulnerable students, dependent upon the Appellant for the successful completion of their university placement with the Health Service;
- (d)the Appellant was in a position of power at all times; and
- (e)whilst there may have been a small delay in addressing the Appellant's conduct, the Appellant was placed on alternative duties within 48 hours of formalisation of particulars. Accordingly, the delay should not be considered to be mitigation of the Appellant's conduct;
- allegations one and two relates to the Appellant's conduct towards the two student nurses and whilst the complaints have their own individual examples of offending conduct, there is a number of common themes about the Appellant and his conduct towards them;
- with respect to allegation five, the Appellant has made admissions that teaching students 'falls below' his other 'duties of care' and it is reasonable to believe that the Appellant has made students aware of their low priority. Additionally, the Appellant's line manager has referenced prior discussions about the Appellant's lack of support for the 'collaborative learning and practice model'; and
- at all times during the disciplinary process, the Appellant has been afforded an opportunity to understand and respond to the matters of complaints. The Respondent has complied with its obligations to investigate serious complaints regarding the conduct of the Appellant and there is no evidence to suggest the decision maker acted with bias.
Appellant's submissions in reply
- [17]The Appellant, in accordance with the Directions Order, filed submissions in reply to the Respondent's submissions. In summary, the Appellant submits that:
- there is no evidence or corroboration of the disrespectful/derogatory comments attributed to the Appellant by student nurse one and that the Appellant has been profiled on a gender/age bias by the Respondent, which jaundiced the Respondent's views of the Appellant's responses and credibility;
- the Respondent is suggesting that discussions surrounding men's health issues is inappropriate within the confines of an acute hospital setting amongst other health professionals infers that other men's health issue topics are taboo subjects for conversation and shows a bias against the Appellant and other men. If it had been a female discussing these topics with another female rather than a male discussing with a female, the Respondent would not have found them to be inappropriate;
- the Appellant cannot have any faith that his responses have been viewed objectively or fairly with the Respondent rejecting attempts by the Appellant "to continue to attempt to cloak inappropriate conduct under the guise of clinical respectability";
- the Appellant's 'disputation' has never been that of denying liability as to his responsibilities regarding personal devices and has only been that of clarification of the exact nature of the photo that was accidently revealed;
- it should be noted that student nurse two, has declined to progress with her original complaint and does not corroborate student nurse one's allegations pertaining to the alleged derogatory/sexual statements attributed to the Appellant. Further, student nurse two states in her statement the following:
I would also like to add that I enjoyed learning from Brad as he does have a lot of experience and knowledge to share.
- the Respondent's assertion of his conduct on vulnerable students is patently false as it is the student facilitator who has the mandate to pass or fail a student's practical placement. As the student facilitator never requested feedback from the Appellant regarding a student's performance, the Appellant challenges the assumption of 'power' by the Respondent;
- the Respondent does not refute the priorities regarding the 'duties of care' as the priorities are above other duties of care and does not equate to students being of a low priority; and
- the discussions had with the Appellant's line manager was centred around clarification of such issues as chain of command and reporting processes. Any criticism of the model cannot be construed as a lack of support.
- [18]The Appellant further notes that he was not in receipt of a 'file note' that was attached to the Respondent's submissions:
It is noted that the respondent has included a "note file" …that I have not been privy to beforehand… this is undated, unsigned and untested……as such, I don’t believe it should be viewed as corroboration of allegations brought against me. It does however give me an opportunity to respond. I was told of this "unofficial" complaint in November 2019 ( pre dating the current allegations ), I was upset by this to the point of making an appointment to see my DON ( Graham Wilkinson ) on a day in my holidays (late November/early December), in which to make him aware of the complaint, to voice my concerns as to me feeling vulnerable and unsafe in my work environment to false allegations of this nature and to ask for advice on how I could minimize the risks of this reoccurring . These concerns have only escalated due to the events of recent times and I sent a further email to Mr Wilkinson 26/8/2020 stating this to be the case and it being a major obstacle for me being able to return to the workplace, my expectation being that this email was forwarded to the respondent… To this date I have not received a reply. I would with respect appreciate a response as I do have a proposal to put forward to the respondent that may be acceptable to both parties with a view towards me returning to the workplace.
Consideration
- [19]Consideration of an appeal of this kind requires a review of the decision that the allegations were substantiated to determine if the decision was fair and reasonable in the circumstances.
- [20]A total number of five allegations were put to the Appellant and after consideration of his response, three of the five allegations were substantiated.
- [21]The Appellant appeals the decision to substantiate allegations one, two and five. These allegations are outlined in paragraph [10].
- [22]The Respondent relied on the account provided by the two student nurses to substantiate the allegations, along with partial admissions from the Appellant. The Appellant's admissions related generally to the events occurring, although providing a different explanation as to the context of each event.
Allegation one
- [23]Particulars (i) and (ii) of allegation one relates to conversations involving the application of cream to the Appellant's son's penis and catheter procedures being carried out by nurses of the opposite sex to the patient. It is common ground that the conversations occurred, albeit with different terminology. The Respondent considered the Appellant's submissions and determined that there was no genuine clinical reasoning for such discussions. Student nurse one describes the Appellant as using inappropriate language in both conversations, however, the Appellant categorises the conversations as based on a medical condition and concerns about patient consent. The Appellant submits that there was a contradiction between student nurse one's statement surrounding the indwelling urethral catheter ('IDC') insertion and the account provided by the facilitator. The accounts are different in that in the facilitator's account, the Appellant was not present when the IDC insertion occurred. I am not of the view that this inconsistency is significant as the issue of concern is the Appellant's language used following the event. On the basis that student nurse one's version of the conversations was preferred over the account provided by the Respondent, it was reasonable for the Respondent to conclude that these discussions resulted in student nurse one feeling uncomfortable and offended. The Appellant submits that his concern was with respect to the sole issue of patient consent. This allegation does not relate to the issue of patient consent, rather, it relates to the Appellant's description of IDC insertion in terms that are inappropriate.
- [24]Particular (iii) of allegation one relates to the Appellant's action in exposing an explicit photograph of a semi-naked female before making inappropriate comments. The Appellant submitted that the photo was of a woman who was topless rather than naked as alleged and was significantly older than that suggested by student nurse one. The Appellant submitted that the woman was 55 years old and not 'in her 40s' as suggested by student nurse one. The Respondent determined that this response from the Appellant showed contempt for student nurse one, from which the Appellant bases his claim of bias. The characterising of the Appellant's response as showing contempt was open to the Respondent and does not indicate bias. It is disingenuous for the Respondent to take issue with the extent of the nudity and the age of the person involved, when the clear issue was whether it was appropriate to show a photo of this kind in the workplace to a student under supervision. The comments attributed to the Appellant after the photo was shown were also inappropriate. It was reasonable for the Respondent to determine that it was not appropriate conduct in the workplace.
- [25]Particular (iv) of allegation one relates to the Appellant referring to student nurse one inappropriately when he referred to her as "babe, sugar, honey, darling". The Appellant does not dispute that he uses 'pet names' and concedes that the use of such names was 'less than professional'. The Appellant submits that the students did not inform him of their discomfort and denied him the opportunity to be more vigilant with his manner of address. It was not the responsibility of the student nurses to inform an experienced nurse of the appropriate manner in which they should be addressed. It is standard workplace practice to address colleagues appropriately and the use of the terms described are clearly not appropriate in the workplace. The Respondent acted reasonably in substantiating this particular of allegation one, given the Appellant's concession.
- [26]Particular (v) of allegation one refers to the Appellant's inappropriate physical contact with student nurse one on multiple occasions. The Appellant disputed the Respondent's outline of the number of shifts he worked with student nurse one, stating that he only worked with student nurse one on five shifts rather than the seven shifts stated by the Respondent. The Appellant submits that the discrepancy is significant as it reduces the amount of time he could possibly have had any impact on student nurse one by approximately 30%. In my view, this discrepancy is not significant due to the Appellant's admission that he either intentionally or unintentionally touched student nurse one. The Appellant again submits that he could not be expected to know that physical interactions would make student nurse one uncomfortable as she gave no indication of discomfort. Again, it is not the responsibility of the student nurse to inform an experienced nurse that physical touching makes them uncomfortable. Any sort of awareness on the part of the Appellant would have ensured that he refrained from touching the students or excused himself if he needed to move closely beside them. On the basis that the Appellant conceded that he made physical contact with student nurse one, it was open to the Respondent to substantiate particular (v) of the allegation.
- [27]Particular (vi) of allegation one refers to the Appellant's inappropriate communication with student nurse one during a conversation he held with her in relation to where student nurse one's dog slept. The Appellant denies that this conversation was inappropriate, however, the Respondent determined the additional commentary complained of by student nurse one involving sexual inuendo had occurred. The Appellant submits that the conversation was taken out of context and extended to matters beyond where the dog slept to include the breed, colour and age of the dog. This may be accurate, and it would explain to some extent why the Appellant is of the view that the conversation was not inappropriate. The issue is not that the conversation was 'mostly' appropriate, rather the issue is that sexual inuendo had occurred when discussing where the dog slept. After determining that student nurse one's account was to be accepted, the Respondent reasonably determined that this had occurred and substantiated this part of the allegation.
- [28]Particular (vii) of allegation one related to inappropriate comments to student nurse one on multiple occasions during general conversation that may be considered sexual in nature. The Appellant submits that the Respondent did not take into account his entirely different perspective. The Respondent stated that the evidence was considered before a determination was made that it was more likely than not the conduct as described by student nurse one had occurred. It was open to the Respondent to prefer the account of these conversations provided by student nurse one over the account provided by the Appellant. The Respondent reasonably gave weight to the lack of motive for two student nurses to make such allegations in circumstances where they had just commenced a student placement. After the Respondent had accepted that the account provided by student nurse one was accurate, it was reasonable to conclude that the comments made had been said by the Appellant and were inappropriate.
Allegation two
- [29]Allegation two was that the Appellant acted inappropriately in his interactions with student nurse two during her placement that may be considered sexual in nature. The Appellant submits that it is unfair to expect him to be aware of another persons' level of comfort due to his close proximity to them in the work environment. The Appellant also submits that he needed to have close proximity to a monitor due to eyesight difficulties. The Respondent determined that there were no concerns regarding the Appellant's requirement that he have close proximity to the monitor, only to inappropriate proximity to other persons in the workplace. The Respondent concluded that as an experienced clinical practitioner, the Appellant should be well versed in the need for adequate personal space in the workplace. This conclusion was reasonably open to the Respondent.
- [30]The Appellant submits that student nurse two declined to progress with her original complaint and does not corroborate student nurse one's allegations pertaining to the alleged derogatory/sexual statements attributed to him. There is no information before the Commission to suggest that student nurse two has recanted from the statement provided. I note student nurse two's statement that she enjoyed learning from the Appellant as he had a lot of experience and knowledge to share.
- [31]The Respondent notes that Allegation one and Allegation two relate to the Appellant's conduct toward the two student nurses and despite the complainants having their own individual examples of the offending conduct, there are a number of common themes about the Appellant's conduct.
- [32]The Respondent acknowledges that the complaints about the Appellant were raised jointly by the students, however, submits there is no evidence to suggest they were motivated by any ulterior motive.
- [33]The Respondent considered that the Appellant discounts the impact of his conduct on vulnerable students, dependent upon the Appellant for the successful completion of their university placement. The Respondent notes that the Appellant was in a position of power over the students and the fact they did not feel comfortable challenging him directly about his conduct does not lessen the impact. The Appellant challenges the assumption that he has 'power' on the basis that it was the student facilitator who has the mandate to pass or fail a student's practical placement.
- [34]The question of power is not simply a matter of who has the formal power to assess the student and pass or fail their practical placement. Student nurses who are assigned to experienced nurses for placement will generally be subject to a power imbalance given that they are not tenured employees and an adverse impression on a nurse may impact on their placement outcome. The student facilitator would undoubtedly consider any reports from nurses that reflect upon the competency of the student nurse, even if these reports are not sought out by the facilitator. The Respondent is correct in assessing that a power imbalance exists between the parties.
Allegation five
- [35]Allegation five relates to the Appellant's conduct in making inappropriate comments to student nurse one about student nurses. The Respondent determined that on the basis of the Appellant's admissions that teaching students 'falls below' his other 'duties of care', it was reasonable to believe that he made the students aware of their low priority. The Respondent also relies upon the Appellant's line manager, who has referenced prior discussions about the Appellant's lack of support for the 'collaborative learning and practice model'.
- [36]The Appellant submits that this conversation was taken out of context and that he was merely outlining to the students what he has always believed to be the broad duties of care involved with being a registered nurse so as to clarify what expectations they may have on their placement. The Appellant submits that the Respondent failed to consider the positive impacts he may have had on students, giving examples such as giving each student a document in point form on how to perform a 'head to toe' physical assessment of a client and showing them angiograms/plasty being performed on 'heart lab' on the computer.
- [37]With disciplinary matters, positive actions within the workplace generally do not 'outweigh' inappropriate conduct. The Appellant may be correct in asserting that he has engaged in a range of positive behaviours with the students, however, this does not negate the demeaning nature of his comments with respect to the level of priority attributed to students. The Appellant's admissions as to his comments, when considered with student nurse one's account, indicate that the statement was significantly more disparaging than making students aware of 'their low priority'. On the basis that student nurse one's account was accepted, it was open to the Respondent to substantiate this allegation.
General
- [38]The Appellant was afforded procedural fairness throughout the process, commencing with an opportunity to provide a response to an inquiry regarding the circumstances surrounding the complaints at first instance. He was then provided an opportunity to respond to the show cause notice in which the allegations were detailed. This response was considered along with all of the evidence available to the Respondent before a disciplinary finding was made.
- [39]The Appellant has submitted multiple times that the decision to accept the accounts provided by the student nurses indicate a bias against him. There is no evidence that the Respondent acted with bias. When confronted with two versions of events, the Respondent has a responsibility to determine which version is more likely than not to be an accurate account of events as they occurred. The decision to prefer one version of events as more likely to have occurred, on the balance of probabilities, does not indicate the presence of bias.
- [40]The Appellant submits that the comments attributed to him by student nurse one were unwitnessed and uncorroborated. This does not prevent the Respondent from accepting student nurse one's version of events, particularly when a complaint in a similar vein was made by student nurse two.
- [41]I accept the Respondent acted to separate student nurse one once the nature of the allegations was clarified. The Appellant was placed on alternative duties within 48 hours of the concerns being formalised which is a reasonable timeframe in the circumstances.
- [42]The Appellant submits that the history of friction between himself and the student facilitator suggests that there may have been collusion between the two student nurses and the facilitator. The Appellant suggests that student nurse two may have been the subject of peer pressure to make her allegations and be motivated by wanting to please her facilitator upon whom she was dependent on to pass the practical component of her course. There is no evidence before me that student nurse two felt any such pressure or that collusion occurred between the students. It would not be unreasonable for the students to speak about their experience with each other before bringing their concerns to their facilitator prior to submitting their complaints.
- [43]The Appellant submits that the allegations may have been in response to his criticism following the IDC insertion incident. The Respondent accepted student nurse one's account of the Appellant's comments following this incident, which were not appropriate. If the inappropriate language had not been used, there would have been no grounds for complaint.
- [44]The Appellant refers to the statement made by student nurse one that during the student debrief sessions they "dig up dirt on you, Brad". Student nurse one confirmed that this statement was made but states that it was said as part of a joke. The Respondent accepted that this statement was said as a joke. It may well be that the friction between the Appellant and the student facilitator resulted in the student facilitator being more alert to matters relating to the Appellant. Regardless, had the Appellant not engaged in the behaviours as alleged, there would have been no disciplinary finding.
- [45]The file note dated 11 November referred to by the Appellant was not relevant to the current process and it does not appear to have been considered by the Respondent in the disciplinary findings.
- [46]Following the substantiation of allegations one, two and five, the Respondent determined that there are grounds for the Appellant to be disciplined pursuant to s 187(1)(f)(ii)[7] of the PS Act in that he has contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code of Conduct for the Queensland Public Service. This specifically relates to clause 1.5 which is outlined below:
We have a responsibility to always conduct ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public. We Will treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships.
- [47]It was open to the Respondent to determine that the Appellant had contravened the Code of Conduct following substantiation of the allegations.
- [48]The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[8]
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.[9]
- [49]Applying the principles outlined above, I do not consider that the decision to substantiate allegations one, two and five lacks justification in the circumstances. The decision is, in my view, reasonable.
- [50]Based on the information before me, I am satisfied that the decision to substantiate allegations one, two and five is fair and reasonable in the circumstances.
Order
- [51]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] Referred to as 'student nurse one' and 'student nurse two' in this decision.
[2] From NG5(7) to NG5(3).
[3] IR Act s 562B(2).
[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.
[5] 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.
[6] IR Act s 562B(3).
[7] This section has since been amended as a result of the s 39 of the Public Service and Other Legislation Amendment Act 2020 (Qld). The relevant provision post amendment is s 187(1)(g) of the PS Act.
[8] [2019] QSC 170.
[9] Ibid [207]-[209].