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  4. Storey v State of Queensland (Queensland Health) - [2021] QIRC 195

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Storey v State of Queensland (Queensland Health)[2021] QIRC 195

Storey v State of Queensland (Queensland Health)[2021] QIRC 195

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Storey v State of Queensland (Queensland Health) [2021] QIRC 195

PARTIES:

Storey, Maria

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/88

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

4 June 2021

MEMBER:

HEARD AT:

Knight IC

On the papers

ORDER:

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 – appeal against a disciplinary decision – where participant must complete transition program within twelve months – where program must be completed in sequence – where assignment submitted on multiple occasions – where assignment awarded a fail mark – where completion of program is listed as a requirement in position description – whether appellant failed to meet requirements of the program – whether appellant meets minimum employment requirements – where allegation substantiated – whether decision fair and reasonable

LEGISLATION AND INSTRUMENTS:

Directive 15/20 Positive performance management

G9 Performance and development

G11 Performance improvement

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 187, 197

CASES:

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Office, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

  1. [1]
    Ms Maria Storey is currently employed as a Registered Nurse ('RN'), in the Intensive Care Unit ('the ICU'), at the Princess Alexandra Hospital ('the PAH'), within the Metro South Hospital and Health Service ('MSH').
  2. [2]
    In a decision letter dated 17 February 2021, Ms Adrianne Belchamber, Acting Executive Director of the PAH, confirmed the substantiation of an allegation that Ms Storey had failed to meet the requirements of the Transition Support Program ('the TSP') being undertaken in her role with the ICU at the PAH ('the decision'). 
  3. [3]
    Pursuant to ch 7, pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'), Ms Storey is appealing Ms Belchamber's decision. Section 197 of the PS Act provides that such an appeal is to be heard and determined under ch 11 of the Industrial Relations Act 2016 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  4. [4]
    An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of re-hearing but involves a review of the decision arrived at and the decision-making process associated therein.[1]
  5. [5]
    In a practical sense, this means it is not the role of the Commission to step into the shoes of Ms Belchamber and decide what else might have been done in response to the events or issues which underpinned the allegation. Instead, the purpose of the appeal is to determine whether the decision made by Ms Belchamber in so far as the allegation was substantiated, was fair and reasonable.[2]
  6. [6]
    In my view, for the reasons which follow, the decision was fair and reasonable.

Background

  1. [7]
    In a show cause notice dated 23 October 2020, Ms Storey was invited to respond to an allegation that, if substantiated, may have amounted to grounds upon which she could be disciplined, pursuant to s 187(1) of the PS Act. The allegation was set out as follows:[3]

Allegation One

You have failed to meet the requirements of the Transition Support Program – Intensive Care – Adult and therefore do not meet the minimum employment requirements for working in the Intensive Care Unit, PAH.

  1. [8]
    The correspondence confirmed Ms Belchamber considered the information available to her in relation to the allegation, suggested there may be grounds for Ms Storey to be disciplined pursuant to the PS Act, specifically:[4]
  1. (a)
    section 187(1)(9) in that you may have engaged in repeated unsatisfactory performance or serious underperformance of your duties, including, for example, by performing duties carelessly, incompetently or inefficiently.
  1. [9]
    Ms Storey was provided with fourteen days in which to respond to the allegation and accompanying particulars.
  2. [10]
    The Queensland Nurses and Midwives' Union of Employees ('the QNMU'), responded to the allegation on Ms Storey's behalf. In correspondence dated 20 November 2020, the QNMU submitted that Ms Storey:[5]
  • denied failing to meet the minimum employment standards for working in the ICU at the PAH, contending she had voluntarily and enthusiastically agreed to complete the TSP;
  • was not aware the completion of the TSP was a requirement of her employment;
  • commenced working in the ICU as part of an Australian Defence Force ('ADF') placement, officially commencing employment with the PAH in December 2019;
  • submitted assignment one in error, which occurred for several reasons associated with challenging personal circumstances, including school closures, home schooling and the breakdown of her marriage;
  • was provided with broad and limited feedback about assignment one, notwithstanding the feedback for assessment envisaged by the TSP Participant Guide;
  • was denied an opportunity to specifically recognise and correct matters of concern, along with the option to defer her participation;
  • was afforded limited consideration in respect of her challenging personal circumstances;
  • acknowledged she resubmitted the assignment on 17 August 2020 and was subsequently notified of a fail grade;
  • expressed disappointment that at the same time she received feedback about the assignment, was also advised she would be unable to receive a "Queensland Health Statement of Completion" certificate for the TSP;
  • was not afforded a meaningful opportunity to develop or improve her performance in relation to assignment submissions as provided for in policies G9 Performance and development and G11 Performance improvement;
  • could not recall participating in any supported education or offline/non-clinical forums since her commencement with MSH;
  • although failing the assignment, had successfully completed other aspects of the program including four modules and a preliminary Clinical Performance Assessment Tool ('CPAT').

The decision

  1. [11]
    In correspondence dated 17 February 2021, Ms Belchamber wrote to Ms Storey, advising the allegation (as set out at [7] above) had been substantiated.
  2. [12]
    In the decision-letter, Ms Belchamber set out the reasons for her decision, noting:[6]
  • the TSP is not unique to the ICU at the PAH;
  • the TSP is a mandatory accredited course run in all Queensland Health tertiary hospitals, due to the acuity of patients admitted in larger hospitals;
  • there are strict participation and assessment guidelines in place with the relevant partnering universities, such that hospitals are generally not permitted to operate outside those guidelines;
  • any deviation could potentially undermine the PAH's continuing arrangements with participating universities;
  • Ms Storey was well aware of the requirement to successfully complete the TSP prior to commencing with the PAH ICU and her subsequent resignation from the ADF;
  • while still employed by the ADF, but on placement with the PAH, Ms Storey was provided with two of the phase books from the TSP, with a recommendation to work through them ahead of her formal placement in the TSP. Moreover, that although not compulsory, the workbooks had not been returned by Ms Storey for guidance, nor marking;
  • during Ms Storey's interview for the role in the PAH ICU, the TSP, including the requirements of the program, were discussed at length;
  • Ms Storey responded to specific questioning in relation to her understanding of the TSP during the interview for the role in the ICU;
  • the role description associated with the position Ms Storey accepted, specifically noted:

This position requires the applicant to undertake the Transition to Practice Nurse Education Program – Intensive Care Adults, if not previously completed or if he/she does not hold a post graduate qualification in Intensive Care Nursing. The Program must be completed within a one-year time frame.[7]

and,

  • MSH did not accept Ms Storey was not aware that the completion of the TSP (including the quantity of the work required to complete the program), or alternatively completion of a relevant post graduate certificate, was a mandatory requirement for employment in the PAH ICU.
  1. [13]
    Ms Belchamber rejected Ms Storey's claims she was denied an opportunity to recognise and correct matters of concern with her assignment, noting:[8]
  • after determining her assignment contained a significant amount of plagiarism, Ms Storey was provided with an opportunity to resubmit the assignment – which was essentially a second version;
  • despite receiving a fail mark on the resubmitted version, Ms Storey was provided with yet another opportunity to submit the assignment within an agreed timeframe of two months, providing ample opportunity for her to seek further feedback, support and assistance in order to obtain a passing grade; and
  • the TSP guidelines are quite prescriptive, setting out a participant's obligations to complete assessment within required timeframes and seek support and guidance from nominated educators, as required.
  1. [14]
    In her decision-letter, Ms Belchamber acknowledged the PAH's obligations to Ms Storey to provide support in the form of resources and people but highlighted the expectation that, as an adult studying at a tertiary level, it was incumbent on Ms Storey to be responsible for her own learning.[9]
  2. [15]
    Attention was also focussed on the opportunity provided to Ms Storey on 11 August 2020 to have a version of her draft assignment reviewed prior to final submission, in addition to being provided example assignments, to assist with demonstrating the requirements of the assessment.[10]
  3. [16]
    Ms Belchamber highlighted two extensions approved by the PAH, prior to Ms Storey submitting her assignment, the development of a learning plan, and examples of other support provided in the lead up to the commencement of her assignment.[11]
  4. [17]
    Although Ms Storey's disclosure of her marital challenges on 6 July 2020 was acknowledged in the correspondence, Ms Belchamber observed that she did not request a deferral of the program or advise such matters were impacting her ability to work or complete the program.[12]
  5. [18]
    Ms Belchamber concluded the decision by noting:[13]

It would appear that rather than take responsibility for your own actions, you are attempting to blame to [sic] the ICU management team and the education and facilitation team [in circumstances where Ms Storey] … commenced with the ICU with full knowledge that you would be required to undertake a 12-month TSP program … You have been provided with extensive support and resources as required as well as access to two nurse educators and two clinical facilitators across seven days per week.

… You were provided more than the maximum number of attempts to pass assignment one of the program … Subsequently, due to failing assignment one … you are not eligible for the articulation certificate, and subsequently do not meet the minimum employment requirements to continue to be employed within PAH ICU.

Ms Storey's grounds of appeal and submissions

  1. [19]
    The primary ground of appeal relied on by Ms Storey in her appeal notice relates to a failure on the part of MSH to specifically address or consider the application of the "PSD directives" when substantiating the allegation.
  2. [20]
    In accordance with a Directions Order issued by the Commission, Ms Storey's representatives provided further submissions in support of her appeal which went further than the material contained in the appeal notice. Taken together, Ms Storey's concerns fall into four broad categories, namely:
  1. (a)
    she was given insufficient opportunity and support to improve her performance;
  2. (b)
    she was unaware that completion of the TSP was mandatory;
  3. (c)
    her performance was hindered by challenging personal circumstances; and
  4. (d)
    MSH failed to specifically apply or consider the application of various relevant directives, for examples, G9 Performance and development, G11 Performance improvement and Directive 15/20 Positive performance management, both during the period that the allegation occurred and while MSH was determining if the allegation was capable of being substantiated.
  1. [21]
    Additional matters relied on by Ms Storey in support of her appeal, include:
  • it is inappropriate for MSH to rely on outcomes from an earlier CPAT assessment, but in any event it chose to engage Ms Storey despite being aware of the results;[14]
  • Ms Storey was not offered an opportunity to defer her participation in the TSP, nor was she aware extensions were available for assignments;[15]
  • a file note attached to the decision-letter (Attachment 3) and relied on by MSH is not a contemporaneous record about discussions, in so far as it relates to any conversations that were held during Ms Storey's initial interview for the ICU role;[16]
  • although it is acknowledged the TSP was discussed in the interview, Ms Storey has no recollection of being informed the completion of the TSP was mandatory;[17]
  • feedback provided by Mr Gant on or around 11 August 2020 was vague and generalised;[18]
  • further discussions with a Mr Joe Jennings resulted in less clarity as to what Ms Storey was required to do in relation to the assignment;[19]
  • Ms Storey was not provided with specific or targeted support to improve or develop her performance with the specific goal of passing the assignment;[20]
  • Ms Storey has no recollection of a "learning plan" referred to in MSH's submissions but is able to recall a timetable was put in place in relation to the TSP guidelines for various modules, which have been met;[21] and
  • Ms Storey is committed to continuous improvement in all areas of her work as an RN and is keen to undertake any additional education offered to her.[22]

MSH's submissions

  1. [22]
    In support of its decision to substantiate the allegation, MSH submitted:
  • it was open to the decision-maker to determine Ms Storey had failed to satisfy the requirements of the TSP, therefore failing to meet reasonable performance and capability requirements;[23]
  • MSH was consistently clear from the outset about the expectation for Ms Storey, as an inexperienced ICU nurse, to complete the TSP;[24]
  • Ms Storey was provided with a number of supports to assist her to successfully complete her assignments and the TSP, both before and after being formally notified of concerns regarding her assignment;[25]
  • once Ms Storey's personal circumstances became known to the MSH, she was afforded the opportunity to submit her assignment a third time, three months after its due date and approximately one month after her personal circumstances were disclosed – therefore the assertion MSH has failed in its responsibility to account for factors in mitigation is inconsistent with the facts;[26]
  • the completion of the TSP is crucial for MSH to have confidence in nursing employees (in terms of their skills and knowledge) in circumstances where they are caring for the most critically ill patients in the community;[27]
  • until the disciplinary process commenced, Ms Storey did not raise any concerns with the level of support being offered by PAH;[28]
  • Ms Storey's inability, after several heavily supported submissions, to achieve a passing grade in the first assignment, which arguably is the first hurdle of the program, gives rise to serious concerns about whether it is appropriate for her to work as an ICU nurse;[29]
  • Ms Storey's submissions she was aware of, and enthusiastic about completing the TSP are at odds with her claims she was unaware of the requirement to complete the program;[30]
  • panel interview notes confirm the TSP was specifically discussed during the interview process. Moreover, Ms Storey's pleaded ignorance as to the importance or requirements of the program are inconceivable;[31] and
  • on commencement of the TSP, participants are provided with a participant guide which sets out the structure, learning outcomes and assessment requirements of the program, including which assessments are due to be handed in or completed during each phase of the program. Moreover, the guide sets out the responsibilities of participants and the steps to be taken to seek extensions or defer the program.[32]
  1. [23]
    In concluding its submissions, MSH noted:[33]

… It is essential that clinicians in the ICU are qualified, competent and held to the highest standards of performance. The risks associated with underperformance in the ICU can be dire ...

Ms Storey was aware of the requirements to complete the TSP…[and] was provided with extensive support … Despite this, Ms Storey has not addressed shortcomings to such an extent that she has been able to achieve a passing grade.

It is this inability that gives clear rise for the ability of the MSH to find fairly and reasonably that Ms Storey is liable to be disciplined ...

Was the disciplinary decision fair and reasonable?

  1. [24]
    In reviewing the decision, which is the subject of this appeal, I am required to review the decision made by Ms Belchamber on 17 February 2021. In the decision, she confirmed the allegation set out at [7] above had been substantiated.
  2. [25]
    My role here is to determine whether the decision to substantiate the allegation, and the decision-making processes associated with the decision, were fair and reasonable.
  3. [26]
    In its submissions, the MSH set out a chronology of events that occurred from mid‑May 2020 until 17 August 2020, in respect of the completion of assignment one, including requests for extensions, events such as the initial plagiarism incident and additional dates permitting resubmission of the third version of assignment one.
  4. [27]
    The assignment was submitted on 17 August 2020, having been initially due on 18 May 2020.
  5. [28]
    These dates, in so far as they specifically related to agreed deadlines by which Ms Storey was obliged to turn in or resubmit her assignment are not in dispute. Nor have I been able to identify submissions, on the part of Ms Storey, which specifically refute the particulars of the allegations, as set out below:[34]

Particulars:

  1. You commenced the Transition Support Program – Intensive Care Adult on 12 December 2020.
  2. The Transition Support Program, Intensive Care – Adult Participant Guide (the Guide) outlines your responsibilities together with the submission details for all assessment pieces.
  3. To successfully complete the Transition Support Program, you must successfully complete the two assignments, two CPATs and four modules. The Guide states that 'where all relevant components have not been successfully completed a Queensland Health Statement of Completion cannot be issued'.
  4. On 9 June 2020 you submitted assignment one.
  5. You failed assignment one due to a plagiarism return rate of 61%.
  6. As per the Guide, after a first episode of plagiarism, you may be advised to resubmit. However, this would be graded as a 'resubmit' grade if passed.
  7. After a please explain process, you were provided with the opportunity to re-submit assignment one, which you did on 14 June 2020. This submission was considered your first submission.
  8. On 18 June 2020, Mr Gant assessed your assignment, and returned a 'fail grade'.
  9. As this was your first submission, you were provided with the opportunity to submit a 'second submission'.
  10. You submitted your second submission on 17 August 2020.
  11. This second submissions also returned a 'fail grade', even after it was independently assessed by an external moderator.
  12. The Guide clearly states in part: 'if the submission does not achieve a 'pass' mark, an 'unsuccessful' grading will be recorded. There is no further recourse for appeal and the participant will not be awarded a QLD Health Statement of Completion'.
  1. [29]
    Instead, aside from Ms Storey's contention she was not aware of the mandatory nature and significance of not completing the TSP program, the main reasons she considers Ms Belchamber's decision not to be fair and reasonable, primarily concern the failure of MSH to take into consideration her challenging personal circumstances and the inadequate support and feedback provided to her, at or around the time the assignment was due. It is also argued Ms Storey was not given an opportunity to improve her performance or meet and exceed the requirements of the program in accordance with several policies and a Directive.

Awareness of the TSP and the requirements of the program

  1. [30]
    Although Ms Storey acknowledges her participation in the TSP was discussed in her interview, she maintains the submissions provided by MSH fail to demonstrate she was aware that completion of the TSP was a mandatory component of her employment in the ICU.
  2. [31]
    Conversely, MSH submits its representatives were clear from the outset about the need for Ms Storey, as an inexperienced ICU nurse to complete the TSP.
  3. [32]
    During the appeal process, the Commission was provided with a copy of the relevant position description for the role of a registered nurse in the ICU.
  4. [33]
    Under the headings "Your Key Responsibilities", and more specifically, "Clinical/Specialist/Technical Knowledge", is the following paragraph:[35]

…

  • Demonstrates depth of knowledge, skills, experience and competence as an RN in Intensive Care nursing/midwifery practice
  • Ongoing commitment to:
    • This position requires the applicant to undertake the Transition to Practice Nurse Education Program – Intensive Care Adults, if not previously completed or if staff member does not hold a post graduate qualification in Intensive Care Nursing.
    • This Program must be completed within a one-year time frame ...
  1. [34]
    Within Ms Storey's submissions, I am unable to locate any attempt on her part to dispute the content of the position description. Nor does she submit that she was not provided with a copy of the position description.
  2. [35]
    Attached to the submissions provided to the Commission by the MSH is a signed record of a series of questions directed to Ms Storey during her interview on 17 October 2019.[36] Ms Storey's responses to questions related to the TSP, as they were recorded by Ms Petra Strube, Ms Rebecca Gauci and Mr Damon Bruce, form part of the relevant attachment.
  3. [36]
    Having regard to the interview and selection records, I accept one of the questions asked during the interview related to Ms Storey's awareness of the TSP and, as part of the same question, any challenges she anticipated would accompany her employment in the ICU.
  4. [37]
    Within Ms Storey's submissions, I have been unable to identify any attempt on her part to dispute the authenticity of those documents. Nor does Ms Storey deny she was asked questions about her understanding of the TSP during the interview process.
  5. [38]
    Separately, the Commission has been provided with a file note dated 12 January 2021, signed by Ms Strube, Ms Gauci and Mr Bruce, which ostensibly contains a record of discussions with Ms Storey during her interview for the role in the ICU, which was held more than twelve months earlier.[37]
  6. [39]
    Ms Strube, a nurse educator at the PAH ICU, recorded her recollections of the discussions with Ms Storey, in the following way:

… the panel discussed that Maria had some prior ICU experience but no formal ICU qualification. Due to this, the standard interview questions were an adaptation to specifically suit Maria's needs. They included both the opportunity to discuss Transition Support Program (TSP) as she would be required to undertake this program as well as assess her ICU clinical knowledge – see Section 3 of interview record.

Two of the interview questions specifically refer to the TSP. Regarding both her prior knowledge of TSP and how she would cope managing the workload of the study requirements of TSP as well as working clinically in the ICU. She answered that she knew that there were assessments, it was a 12-month program and workbooks involved, that all needed to [be] completed on time – see interview record.

As the educator on the panel it is my role to clarify the TSP program requirements. I explained to Maria that she had already received some of the TSP workbooks for her own informal learning while on ADF placement which she had not been required [to] returned [sic] for marking. I explained to her however if she to gain a position in the ICU, she would need to complete all TSP requirements for submission and marking, compared to the information process she had while on ADF placement.

...

I had further knowledge that Maria had attempted to undertake post graduate studies at UTAS (University of Tasmania) at the encouragement of her ADF employers … For this course she was required to undertake a UTAS CPAT … This assessment was aborted on the day due to her failing to meet the course requirements.

  1. [40]
    In the file note, Ms Strube explained she understood Ms Storey had eventually withdrawn from the UTAS course, having not been able to meet the course requirements. According to Ms Strube, due to being aware of those events, she:

... further expanded on the requirements of TSP more than normal to ensure she understood that if she was to gain employment at PAH ICU, [Ms Storey] would be required to undertake the full requirements of TSP as part of her position. At that time, I informed her there was [sic] 2 nurse educators and 2 clinical facilitators that would support this program …

  1. [41]
    Ms Storey's representative does not specifically dispute the comments included in the file note, nor is it submitted those discussions did not occur. The fact that the note is not a contemporaneous record of the interview is however highlighted. On this issue, I am in agreement.
  2. [42]
    MSH has provided the Commission with a copy of the TSP participant guide ("the guide").[38] The guide sets out the structure, learning outcomes and assessment requirements of the program, including when assessments are due to be handed in or completed during each phase of the program. The responsibilities of participants and the necessary steps to be taken to seek extensions or deferment of the TSP are also set out in some detail within the participant guide.
  3. [43]
    I am unable to locate in Ms Storey's submissions any attempt to dispute the authenticity of the participant guide, nor an indication that she did not receive a copy at the commencement of the program.
  4. [44]
    Having reviewed the participant guide, I accept it is quite prescriptive in that it sets out:
  • the purpose, aims, objectives and design of the program, including the due dates for the completion of modules and assignments;
  • the roles and responsibilities of the participant;
  • relevant "resource persons"; and
  • details as to program progression and assessment, including the requirements for written and clinical assessment, requests for extensions, academic integrity obligations, an appeals process, applying for a deferral, and resignations.
  1. [45]
    But for the fact that the program is undertaken in a hospital setting, the participant guide is very much what one would anticipate in a tertiary education environment, including the requisite obligations and requirements in so far as extensions, deferrals and assessments are concerned.
  2. [46]
    In her reply submissions, Ms Storey's representative sets out her position in respect of her awareness of the TSP and her obligations to complete the course, in the following way:[39]

The Respondent has not demonstrated the Appellant was made aware the TSP was part of the 'minimum employment requirement for working in the Intensive Care Unit, PAH' prior to the commencement of this disciplinary proceeding.

  1. [47]
    On balance, having considered the content of the relevant position description, the interview and selection records, the file note signed by all three participants on the interview panel, the TSP participant guide and the submissions of both Ms Storey and MSH, I am not persuaded Ms Storey was unaware of the requirement to undertake and complete the TSP program, which in turn was a requirement of her employment within the ICU.
  2. [48]
    Although it is the case that the file note signed by all three panel members was completed more than a year after the interview process, I am of the view the preponderance of evidence supports the conclusion Ms Storey was aware the completion of the TSP was a requirement of her working in the PAH ICU.
  3. [49]
    In so far as the substantiation of the allegation that is the subject of this appeal, was predicated on Ms Storey's understanding of the minimum requirements for working in the ICU of the PAH, her awareness of the TSP and her obligations while undertaking the program, I am satisfied the conclusions reached by Ms Belchamber in her decision were fair and reasonable.

Personal circumstances

  1. [50]
    Ms Storey submits that significant personal challenges in her personal life while undertaking the TSP impacted her capacity to participate in the "out of work hours" component of the TSP. Ms Storey's representative argues she was not afforded an opportunity to defer the program.
  2. [51]
    MSH maintains that once Ms Storey's personal circumstances became known, she was afforded the opportunity to submit her assignment a third time, three months after its due date and approximately one month after she disclosed her circumstances. Moreover, that Ms Storey was offered further assistance ahead of resubmitting the assignment.
  3. [52]
    Although I accept MSH may not have explored the option of a deferral with Ms Storey, the difficulty I have with her submissions on this issue is the participant guide makes it clear that seeking a deferral is an option under the program. Moreover, just as it does for obtaining an extension, the guide sets out in some detail the requirements for applying for a deferral of the program.
  4. [53]
    It is clear in the participant guide that it was open to Ms Storey to explore a potential deferral of the TSP with MSH, but she did not pursue this option.
  5. [54]
    I am also satisfied the extensions provided to Ms Storey, along with the additional time to resubmit her assignment were more than reasonable, particularly when one considers that the original due date for submission of the original assignment was 18 May 2020.
  6. [55]
    In the end, Ms Storey, after disclosing the challenges she was experiencing in her personal life, was given a further extension until 17 August 2020 to resubmit her assignment, which was also approximately three months after the initial due date.

Insufficient opportunity and support to improve her performance

Failure to afford Ms Storey relevant opportunities in accordance with the relevant Directives and Policies

  1. [56]
    Given the overlapping nature of the issues raised, it is convenient to address the final grounds of appeal together.
  2. [57]
    In her reply submissions, Ms Storey slightly narrowed her arguments in support of this ground, noting that it was not her intention to assert a lack of general educational support within the ICU practice environment.
  3. [58]
    Instead, Ms Storey complains the support afforded to her, specifically in relation to the completion of the assignment, was inadequate. In particular, she contends that had she received the level of feedback provided to her at the time her assignment was submitted and assessed on 17 August 2020, she may well have passed the assignment.
  4. [59]
    I have some difficulty with Ms Storey's submissions in respect of this aspect of her appeal for several reasons, including:
  • MSH agreed to two requests for extensions in relation to assignment one, which was originally due to be submitted on 18 May 2020;
  • having failed assignment one, which was submitted on 9 June 2020, due to a plagiarism return rate of 61%, MSH, in accordance with the participant' guide, provided Ms Storey with a further opportunity to resubmit, with the assignment due on 14 June 2020;
  • after being awarded a fail mark on the resubmitted assignment, Ms Storey was afforded a further opportunity to resubmit the assignment again, with an agreed submission date of 17 August 2020;
  • prior to submitting assignment one on 17 August 2020, Ms Storey met with a nurse educator, Mr Jennings who provided Ms Storey with sample assignments and further guidance in relation to how to approach critical analysis;
  • Ms Storey was also provided with feedback from Mr Mitch Gant, Acting Nurse Educator, ICU, prior to submitting assignment one on 17 August 2020;
  • other feedback, in the form of a written "marking summary" document, was provided to Ms Storey and although somewhat limited, specifically notes concerns in relation to Ms Storey's ability to undertake critical analysis, an issue that appears to have been raised on several occasions; and
  • Ms Storey was able to access resources through the Clinicians Knowledge Network, along with a list of recommended textbooks, readings and other library resources.
  1. [60]
    Ms Storey complains that the feedback she received was the "same vague, generalised feedback on her draft as she was provided in her failed assignment" but it is not clear from her submissions as to how she contends the feedback impacted her ability to obtain a pass mark.
  2. [61]
    Clause 8 of the participant guide describes the type of support a participant in the TSP program can expect to receive while undertaking the program. In so far as it might be relevant to the successful completion of an assignment, the listed support includes the provision of academic support, encouragement, constructive feedback on performance and development and verbal and written assessment on formative assessments throughout the program.
  3. [62]
    In the absence of any further detail from Ms Storey as to how the feedback she received from Mr Jennings or Mr Gant was vague and generalised or not in alignment with the obligations set out in the guide, I'm not persuaded she was provided with insufficient support or opportunity to improve her performance, in so far as it is relevant to the successful completion of assignment one. 
  4. [63]
    It is further argued that Ms Storey was "not afforded the opportunity to improve her performance" or "meet and exceed the requirements of the program", as provided for in Queensland Health policies, namely:
  • G9 Performance and development;
  • G11 Performance improvement; and
  • Directive 15/20 Positive performance management.
  1. [64]
    Attached to Ms Storey's written submissions are copies of the policies and Directive identified at [63]. However, other than assertions that Ms Storey has not been afforded an opportunity to, for example, improve her performance, there is limited (if any) detail within the submissions as to how the actions (or inaction) of MSH or the PAH are in breach of the relevant policies or Directives.

G9 Performance and development

  1. [65]
    In so far as it might relate to the circumstances of this appeal and Ms Storey's successful completion of assignment one, the purpose of the policy G9 Performance and development is to improve individual performance by:
  • clarifying the work standards…expected of employees
  • focusing on mutual responsibility and regular conversations between managers and employees
  • collaboratively identifying how employees will be supported in performing their role and how they can be developed to support the future workforce requirements of Queensland Health.
  1. [66]
    The policy sets out how various objectives under the policy might be approached or achieved. For example, the development of a performance and development plan or career success plan and so on.
  2. [67]
    In the absence of any submissions directly relevant to the application of G9 Performance and development and how MSH has failed to provide support to Ms Storey, in a context that is relevant to this appeal and Ms Storey's obligations under the TSP, I am not able to be persuaded Ms Storey has been denied an opportunity to improve, such that it would render Ms Belchamber's decision unfair or unreasonable.

G11 Performance improvement

  1. [68]
    I have arrived at a similar conclusion in relation to Ms Storey's submissions in respect of policy G11 Performance improvement.
  2. [69]
    The purpose of G11 Performance improvement is to "provide a framework for identifying and improving satisfactory performance". The policy sets out expectations for both employees and their managers, in relation to performance improvement, performance monitoring and performance improvement processes.
  3. [70]
    Under cl 2 of the policy, managers and supervisors are required to effectively monitor employee performance and discuss performance concerns with employees at the earliest possible stage. When an informal process does not lead to a satisfactory improvement in performance, a formal performance improvement process may be commenced.
  4. [71]
    The performance improvement process must be documented and supported by relevant evidence to demonstrate performance concerns and improvements.
  5. [72]
    Ms Storey argues she has not been afforded the opportunity to improve her performance as provided for in G11 Performance improvement, but does not elaborate as to how or why this is the case, in the context of her participation in the TSP or failure to obtain a satisfactory result for assignment one.
  6. [73]
    As best I can tell, her representative appears to be arguing Ms Storey should have been afforded the opportunity to participate in a performance improvement process in relation to her challenges in the TSP, prior to being required to respond to the allegation which forms the basis of this appeal.
  7. [74]
    The difficulty with such an approach, in my view, is that Ms Storey, on accepting her role within the ICU, agreed to participate in an accredited course, with strict participation and assessment requirements. I am satisfied the requirements of the program were clearly communicated to Ms Storey on or before her commencement with the ICU. She was provided with three opportunities to resubmit her assignment over a period of three months and afforded multiple extensions. I am also satisfied MSH took appropriate steps to communicate its concerns in relation to assignment one.
  8. [75]
    Moreover, MSH would have experienced significant difficulties aligning the framework set out in the G11 Performance improvement with the TSP design, processes, assessment timelines and requirements.

Directive: 15/20 Positive performance management ('the PPM')

  1. [76]
    The stated purpose of the PPM includes the promotion of best practice human resource management, including through the application of the positive performance management principles set out at s 25A of the PS Act.
  2. [77]
    The PPM sets out processes for managing employee work performance, including processes for induction, probation, performance, and development agreements. It also sets out relevant processes for the management of unacceptable work performance, in a supportive way, including the introduction of performance improvement plans.
  3. [78]
    Other than an assertion that Ms Storey has not been afforded the opportunity to meet and exceed the requirements of the TSP, there is limited (if any) detail within her submissions as to how the actions (or inaction) of MSH or the PAH are in breach of the PPM.
  4. [79]
    For the reasons set out [59], [74] and [75] above, I am not persuaded Ms Storey was denied an opportunity to meet and exceed the requirements of the program or that MHS has breached its obligations under the PPM, such that the decision of Ms Belchamber could be considered unfair or unreasonable.

Conclusion

  1. [80]
    For the reasons given above, I consider the decision to substantiate the allegation set out in Ms Belchamber's decision-letter dated 17 February 2021, was fair and reasonable.
  2. [81]
    The decision appealed against is confirmed.

Orders

  1. [82]
    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] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[2] Industrial Relations Act 2016 (Qld) s 562B(3); Page v John Thompson and Lesley Dwyer, As Chief Executive Office, West Moreton Hospital and Health Service [2014] QSC 252, [61].

[3] Ms Storey's submissions filed 10 March 2021, Attachment Q1, 3 (emphasis removed).

[4] Ibid.

[5] Ibid Attachment Q2.

[6] MSH's submissions filed 17 March 2021, Attachment 1, 2-3.

[7] Emphasis removed.

[8] MSH's submissions filed 17 March 2021, Attachment 1, 3-4.

[9] Ibid Attachment 1, 4.

[10] Ibid.

[11] Ibid.

[12] Ibid.

[13] Ibid Attachment 1, 5.

[14] Ms Storey's submissions filed 10 March 2021, [20].

[15] Ibid [17(d)], [39].

[16] Ibid [24].

[17] Ibid [26].

[18] Ibid [30].

[19] Ibid [31].

[20] Ibid [35].

[21] Ibid [35].

[22] Ibid [43].

[23] MSH's submissions filed 17 March 2021, [35].

[24] Ibid [36].

[25] Ibid [37].

[26] Ibid [38].

[27] Ibid.

[28] Ibid [39].

[29] Ibid [40].

[30] Ibid [41]-[42].

[31] Ibid [43]; Attachment 8.

[32] Ibid [44]; Attachment 9.

[33] Ibid [45], [47]-[48] (paragraph numbering omitted).

[34] Ms Storey's submissions filed 10 March 2021, Attachment Q1, 3 (emphasis in original).

[35] Attached to the copy of the decision filed 3 March 2021.

[36] MSH's submissions filed 17 March 2021, Attachment 8.

[37] Attached to the copy of the decision filed 3 March 2021.

[38] MSH's submissions filed 17 March 2021, Attachment 9.

[39] Ms Storey's reply submissions filed 24 March 2021, [15(c)].

Close

Editorial Notes

  • Published Case Name:

    Storey v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Storey v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 195

  • Court:

    QIRC

  • Judge(s):

    Member Knight IC

  • Date:

    04 Jun 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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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