Eiser v State of Queensland (Queensland Health)
[2021] QIRC 191
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- Unreported Judgment
- Eiser v State of Queensland (Queensland Health)[2021] QIRC 191
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Eiser v State of Queensland (Queensland Health)[2021] QIRC 191
Eiser v State of Queensland (Queensland Health)[2021] QIRC 191
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Eiser v State of Queensland (Queensland Health) [2021] QIRC 191 |
PARTIES: | Eiser, Ian (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2021/59 |
PROCEEDING: | Public Service Appeal – appeal against a decision taken under a directive |
DELIVERED ON: | 2 June 2021 |
MEMBER: HEARD AT: | Power IC On the papers |
OUTCOME: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appellant directed to attend independent medical examination – whether the internal review complied with Directive 10/20 Independent Medical Examinations – internal review not fair and reasonable |
LEGISLATION: | Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 174, 175, 179AA, 194 and 201 Directive 10/20 Independent Medical Examinations, cls 4, 5 and 7 |
CASES: | Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) |
Reasons for Decision
Introduction
- [1]Mr Ian Eiser ('the Appellant') is employed as a permanent full-time surplus officer (formerly Finance Manager) for the State of Queensland (Queensland Health) ('the Respondent') within the Finance Division at Darling Downs Hospital and Health Service ('DDH').
- [2]The Appellant appeals an internal review decision ('the decision') of Dr Peter Gillies, Health Service Chief Executive, DDH, confirming the decision of Ms Hayley Farry, Executive Director Workforce, DDH, directing the Appellant to attend a medical assessment and submitting to an independent medical examination ('IME') pursuant to ss 174 and 175 of the Public Service Act 2008 (Qld) ('the PS Act').
- [3]In the appeal notice the Appellant erroneously nominated the appeal as one against a disciplinary finding. This error was clarified in the Appellant's submissions in which he stated that the appeal was against a decision made under a directive pursuant to s 194(1)(a) of the PS Act.
Appeal principles
- [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.
- [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.
- [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, therefore, is whether the internal review decision 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?
- [7]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.
Legislative framework
- [8]Chapter 5, part 7 of the PS Act provides the basis to direct an employee to attend an IME on the basis of mental or physical incapacity.
- [9]Section 174 of the PS Act provides:
174 Application of pt 7
This part applies to a public service employee if—
- (a)the employee is absent from duty or the employee’s chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
- (b)the chief executive reasonably suspects that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.
- [10]Section 175 of the PS Act provides:
175 Chief executive may require medical examination
The chief executive may-
- (a)appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
- (b)require the employee to submit to the medical examination.
- [11]Section 179AA of the PS Act provides that a directive of the Public Service Commission chief executive may provide for matters relevant to how part 7 is to be applied in relation to a public service employee and that in acting under part 7, a chief executive must comply with any such relevant directive. The relevant directive is Directive 10/20 Independent Medical Examinations ('the Directive').
Submissions
- [12]The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.
Respondent's Submissions
- [13]The Respondent filed submissions in response to the appeal, summarised as follows:
- the Appellant has been absent from the workplace since 23 June 2019, not 22 May 2017. It is acknowledged that this was an error in the IME direction letter provided to the Appellant;
- on 21 January 2021, the Appellant emailed Ms Sue Brooks, Workplace Health and Safety, DDH, with his medical certificate and advised that he would be having a medical procedure and looking to return to work in June 2021;
- the Appellant's current medical certificate dated 19 January 2021, advises that he remains unfit for work for the period 19 January 2021 to 19 April 2021. The medical certificate states that the prognosis, 'how long the symptom(s) will affect the patient's capacity to work or study', is more than 24 months; and
- on 17 November 2020, Ms Michelle Oldfield, Senior Human Resource Advisor, DDH, attempted to contact the Appellant by phone and left a message.
- [14]The Respondent submitted the following with respect to the IME process:
- On 19 November 2020 Ms Oldfield contacted the Appellant to discuss the IME and process. The outcome of the discussion was the following:
- (a)the IME direction and process were clarified;
- (b)the IME direction letter and correspondence package was sent via registered post on 13 November 2020;
- (c)Ms Oldfield advised she would also send these documents via email to the Appellant's personal email address;
- (d)Ms Oldfield would be available to clarify or provide any further information; and
- (e)Ms Oldfield clarified that the Appellant had a discussion with Ms Brooks about the IME being referred to human resource for coordination. The Appellant advised Ms Oldfield this was correct;
- on 19 November 2020, the Appellant emailed Ms Oldfield advising:
- (a)that 8am was too early to allow travel to Brisbane to attend the medical specialist appointment; and
- (b)that he felt this was 'putting additional stress on him' and while he did not think Ms Oldfield was being inconsiderate, that she may not realise what it is like to have put this pressure on him due to his 'life threatening condition';
- Ms Oldfield advised the Appellant by phone on 20 November 2020 that she was looking into options for accommodation for his IME and would be in contact shortly thereafter. Ms Oldfield responded to the Appellant's email on 23 November 2020, advising that approval had been given for accommodation the night prior to the medical appointment. Ms Oldfield also explained that there was no other alternative specialist appointment available for the remainder of the year and advised that she would be in contact with him the following day;
- on 24 November 2020, Ms Oldfield contacted the Appellant by phone and confirmed that approval for accommodation was received and outlined the process for financial reimbursement. The Appellant then advised he was concerned about the inclusion of his age and date of birth in the documentation provided to the medical specialist for the IME. He stated that he felt this was age discrimination. Ms Oldfield advised this is standard information provided to all medical specialists in this process so that they may make a proper assessment of the individual. The Appellant said he would seek further advice on this matter;
- Ms Oldfield received an email from the Appellant on 27 November 2020 advising that he was preparing documentation to exercise his right to appeal to the Commission regarding the direction to attend an IME. The Appellant stated that he is happy to attend the IME providing it is postponed until the first quarter of 2021 and that he would lodge the appeal if the Respondent did not accept the proposal by 1 December 2020; and
- on 30 November 2020, Ms Oldfield advised the Appellant of the following decision from Ms Farry:
- (a)DDH continues to have concerns about his ability to perform the duties of his role fully and safely;
- (b)further medical advice is needed to identify suitable roles, duties or adjustments for him to be safely deployed at work; and
- (c)an IME is an appropriate course of action due to his continuing absence.
- [15]The Respondent submitted the following with respect to the internal review and process:
- on 2 December 2020, the Appellant emailed his request for an internal review to Dr Gillies;
- on 3 December 2020, the Appellant sent an email to Ms Oldfield advising:
- (a)that all official correspondence is to be sent by registered mail with a signature; and
- (b)that he is withdrawing Queensland Health's authority to send official correspondence to his private email address;
- on 15 December 2020, Dr Gillies provided a letter dated 14 December 2020 to the Appellant. In this correspondence, the Appellant was advised:
- (a)the request for an internal review relating to the IME was noted;
- (b)DDH cancelled the scheduled IME appointment;
- (c)that all further communication would be sent via registered post as requested; and
- (d)that Dr Gillies would write again once the matter was reviewed; and
- Dr Gillies provided the internal review and response letter to the Appellant on 23 December 2020 and advised as follows:
- (a)that the IME appointment was cancelled;
- (b)DDH continued to have concerns regarding the Appellant's ability to perform the duties of his role safely or satisfactorily, due to health concerns and continuing absence from work. This was outlined in the DDH Memorandum Requesting the Independent Medical Examination; and
- (c)DDH remained unclear about suitable roles, duties or adjustments to safely deploy the Appellant at work and that an IME remains the appropriate course of action at this time.
- [16]The Respondent submits that an IME direction is reasonable and appropriate given the Appellant's continued absence from the workplace and current medical advice from his treating practitioners.
Appellant's Submissions
- [17]The Appellant filed submissions on 3 March 2021, summarised as follows:
- DDH have stated in their submission that the Medical Certificate dated 18 January 2021 states that the prognosis is greater than two years. Perhaps this would be the case if the Appellant did not receive treatment. The Certificate also mentions the word 'stent' twice as 'due for' and 'planned' and appears that DDH have ignored this. Angioplasty is the procedure that the Appellant will have in April to repair the artery. This was advised to the Respondent in a telephone conversation on 21 January 2021;
- in the same consultation, it was stated that the Appellant will be fit to return to work after the procedure. This provided the DDH with a longer-term prognosis and the capacity to return to the workplace. As such, the direction was unnecessary to progress given information existed demonstrating a timeframe relating to a return to the workplace;
- DDH have relied on old medical advice from February 2020. They did not request up to date advice before issuing the direction. Had a request been made to provide further and better medical information from treating practitioners, the Appellant would have been able to provide updated and current medical information, which also included a long-term prognosis of likely return to the workplace;
- the response to the internal review from DDH dated 23 December 2020, received by post on 15 January 2021, was limited and failed to provide information supporting the reasons why the direction was issued. In addition, it did not address why the Appellant was not given 28 days' notice of the direction to attend the IME on 16 December 2020 and why the Appellant was not advised that he could request an internal review as provided for in the Directive;
- DDH have not considered the affect the COVID-19 restrictions have had on the Appellant's treatment plan. Given the Appellant was in a high health risk health position, he was required to self-isolate for six months. The Appellant followed the nutrition and exercise plan under the guidance of a Naturopath that prevented the heart disease from progressing. Following a stress test and CT Angiogram in November 2020, a decision was made to have an angioplasty procedure, with the Appellant's medical team advising that he will be fit for work after the procedure and appropriate recovery time; and
- the Appellant wrote to DDH and requested that they use compassion as required in the Directive. They replied stating that although they felt for his position, the direction to attend the IME stands and if the Appellant is experiencing trouble because of this direction, to see their psychologist. The Appellant does not believe that this is a satisfactory response.
- [18]The Appellant made submissions with respect to the recent history of his substantive employment role and the decision by DDH to abolish the role and subsequently place him in another AO7 position. The Appellant raised concerns with respect to the process concerning his proposed resignation, redundancy and management of his employment pursuant to other directives.
Consideration
- [19]This appeal arises following an internal review by Dr Gillies of the decision under the Directive to direct the Appellant to attend an IME.
- [20]The Appellant raised the following concerns in his letter requesting a review of the direction to attend an IME:
- the grounds upon which the decision maker was basing her belief were not included;
- the Appellant was not contacted or involved at any time while the decision was being made, contrary to clause 4.4 of the Directive;
- the Appellant was notified less than 28 days before the medical appointment and did not agree to a shorter period, contrary to clause 5.5 of the Directive; and
- the direction did not explain the Appellant's right to seek an internal review of the decision and timeframes.
- [21]The decision outlined the following response:
…
Following a review of the direction, DDH continues to have concerns regarding your ability to perform the duties of your role safely or satisfactorily, due to health concerns and continuing absence from work which was outlined in the DDH Memorandum Requesting the Independent Medical Examination.
Therefore, we remain unclear about suitable roles, duties or adjustments for you to be safely deployed at work and accordingly an IME is an appropriate course of action at this time.
…
- [22]The decision is required to adhere to the provisions within the Directive. Clause 7.4 of the Directive outlines the following:
The internal review should determine whether the decision was made in compliance with the conditions in section 174 of the PS Act and the procedural requirements of this directive…
- [23]Clause 7.6 of the Directive outlines the following:
The review decision maker must provide the employee with written notice of the review decision, including the basis and reasons for the decision…
- [24]The decision did not consider whether the decision was made in compliance with the procedural requirements of the Directive, contrary to the requirements of clause 7.4 of the Directive. The decision did not provide adequate reasons for the decision, contrary to clause 7.6 of the Directive. The decision included only a determination that the DDH had concerns about the Appellant's ability to perform his duties safely or satisfactorily due to health concerns and continuing absence from work. A fair and reasonable review decision would have addressed the concerns raised by the Appellant in his request for an internal review, and included the basis for determining that the requirements allowing for an IME direction had been met.
- [25]An internal review is not a meaningful process if it simply repeats the decision that has already been made by a different decision maker. The Directive provides employees with the opportunity to have the decision reviewed, and the employee is entitled to have their concerns addressed and the review conducted in accordance with the Directive.
- [26]The decision did not adhere to the requirements of the Directive and so cannot be considered fair and reasonable.
- [27]I note that returning the decision back to the Respondent for a fresh review may or may not change the substantive outcome with respect to the direction to attend an IME. This does not render the process futile. An internal review decision that is compliant with the Directive will at the very least provide the Appellant with a more fulsome understanding of the reason that the decision to direct him to an IME was made.
- [28]I order accordingly.
Order:
- The decision appealed against is set aside.
- The decision is returned to the decision maker along with a copy of this decision and they are directed to:
- a.Conduct a fresh internal review in compliance with Directive 10/20 Independent Medical Examinations within 21 days of the date of this decision.
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).