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Dean-Braieoux v State of Queensland (Queensland Police Service)[2021] QIRC 209

Dean-Braieoux v State of Queensland (Queensland Police Service)[2021] QIRC 209

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209

PARTIES:

Dean-Braieoux, Shelly

(Appellant)

v

State of Queensland (Queensland Police Service)

(Respondent)

CASE NO.:

PSA/2021/134

PROCEEDING:

Public Service Appeal - Decision made under a Directive

DELIVERED ON:

11 June 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

DATES OF WRITTEN SUBMISSIONS:

Appellant's written submissions filed on 14 May 2021 and Respondent's written submissions filed on 4 June 2021

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
  1. To avoid any doubt, pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, ordered on 6 May 2021, is revoked.

LEGISLATION:

Acts Interpretation Act 1954, s 36 and sch 1

Directive 10/20 Independent Medical Examinations, cl 5.3 and cl 8.1

Human Rights Act 2019, s 15, s 25, s 26, s 29 and s 37

Industrial Relations Act 2016, s 562B, s 562C and s 566

Migration Act 1958, s 189

Public Interest Disclosure Act 2010, s 13

Public Service Act 2008, s 25, s 46, s 47, s 53, s 174, s 175, s 178, s 179AA and s 194

CASES:

Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566

Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203

Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612

Reasons for Decision

Introduction

  1. [1]
    Ms Shelly Dean-Braieoux is employed as an Administration Officer, classification AO2, in the Major Brisbane Police Prosecution Corps of the Legal Division of the Queensland Police Service ('the position'). Ms Dean-Braieoux is employed by the State of Queensland.
  1. [2]
    Ms Dean-Braieoux has been absent from duty since 5 February 2020. Since 29 February 2020, Ms Dean-Braieoux has been residing in the United States of America.
  1. [3]
    Ms Dean-Braieoux appeals against a written decision dated 23 March 2021 by Ms Carolyn Harrison, Executive Director, Legal Division of the Queensland Police Service ('the Service'). That decision required Ms Dean-Braieoux, pursuant to s 175 of the Public Service Act 2008 ('the PS Act'), to submit to a medical examination, to be conducted on 29 April 2021, by Dr Nicholas Jetnikoff, Psychiatrist. Because Dr Jetnikoff's practice is in Australia, the medical examination was to be conducted by video link ('the decision').
  1. [4]
    Section 175 of the PS Act provides that the chief executive of a department may appoint a doctor to examine a public service employee, give the chief executive a written report on the examination and require the employee to submit to the medical examination if two conditions are met. The conditions are contained in s 174. They are, relevantly to the present matter, that:
  • the employee is absent from duty - s 174(a) of the PS Act; and
  • the chief executive reasonably suspects that the employee's absence is caused by mental or physical illness or disability - s 174(b) of the PS Act.
  1. [5]
    The Commissioner of the Service is the chief executive, in respect of public service employees of the Service, for the purposes of the PS Act.[1] I assume, for the purposes of my decision, that Ms Harrison is the authorised delegate of the Commissioner.
  1. [6]
    Ms Harrison, by considering certain information set out in her decision, formed the view that she reasonably suspected Ms Dean-Braieoux's absence from duty was caused by mental or physical illness or disability.
  1. [7]
    There is no dispute that Ms Dean-Braieoux can appeal the decision on the basis that it was a decision, to take action under Directive 10/20 Independent medical examinations

('the Directive'), within the meaning of s 194(1)(a) of the PS Act.

  1. [8]
    By Directions Order dated 6 May 2021, I stayed the decision and directed the parties to file written submissions. The parties have filed submissions. Despite each party being given the opportunity to request an oral hearing, neither party made such a request. Therefore, I have decided the matter on the papers.
  1. [9]
    The question for my determination is whether the decision, and the decisionmaking process, was fair and reasonable.[2] Specifically, having regard to cl 8.1 of the Directive, in considering whether the decision, and the decision-making process, was fair and reasonable, I have to determine whether it was fair and reasonable for Ms Harrison to determine that the two conditions in s 174 of the PS Act were satisfied.
  1. [10]
    There is no dispute that Ms Dean-Braieoux has been absent from duty, within the meaning of s 174(a) of the PS Act, since 5 February 2020. Consequently, the issue in this appeal is whether Ms Harrison could reasonably suspect Ms Dean-Braieoux's absence from duty was caused by mental or physical illness or disability within the meaning of s 174(b) of the PS Act.
  1. [11]
    In my opinion, the decision was fair and reasonable in that there was material before Ms Harrison upon which she could reasonably suspect that Ms Dean-Braieoux's absence was caused by mental or physical illness or disability.
  1. [12]
    My reasons follow.

Background

  1. [13]
    Despite the fact that Ms Dean-Braieoux has been residing in the United States of America since 29 February 2020, Ms Dean-Braieoux has provided the Service with five medical certificates completed on 7 February 2020, 6 April 2020, 17 July 2020, 9 November 2020 and 5 March 2021, by Dr Amelia Stephens of the Clayfield Medical Centre in Brisbane, that certify that Dr Stephens had medically examined Ms Dean-Braieoux.
  1. [14]
    The effect of these medical certificates was that Dr Stephens was of the opinion that Ms DeanBraieoux:
  • was unable to perform her usual occupation from 5 February 2020 to 4 March 2020; and
  • has and would be required to take leave from her employment due to a 'medical condition' from 21 February 2020 to 18 October 2020; and
  • has been and will be unable to perform her usual occupation from 18 September 2020 to 5 June 2021.
  1. [15]
    It also seems to be the case that the Service's Safety and Wellbeing Unit ('SWU'), in respect of Ms Dean-Braieoux, has been liaising with Dr Stephens as part of the SWU's obligations under the Workers' Compensation and Rehabilitation Act 2003 for rehabilitation and return to work programs as part of the Early Intervention Treatment Program. In this regard, by correspondence dated 9 August 2020 from Ms Lynne Brown, Senior Injury Management Advisor, Dr Stephens was requested to answer 11 questions in relation to Ms Dean-Braieoux's current medical condition.
  1. [16]
    The 11 questions were:
  1. Please indicate the current diagnosis impacting on Ms Braieoux's capacity to return to work?
  1. Please describe any current symptomatology?
  2. Please specify the current treatment regime, including time frames?
  1. Has consideration been given for a specialist referral?
  2. When do you anticipate Ms Braieoux will have a capacity to return to work on a suitable duties program? Please comment including timeframes?
  3. If you consider a suitable duties program is appropriate now, please identify any current medical restrictions, to assist in the development of a suitable duties program.
  4. If Ms Braieoux does not current [sic] have a capacity to participate in a suitable duties program, what needs to happen to facilitate this? Please comment.
  5. I am happy to arrange a case conference with you, Ms Braieoux and QSuper to discuss a return to work. Please provide a date and time convenient to you.
  6. Is the long-term goal of the suitable duties plan to return to her substantive position of Administrative Assistant (AO2), Brisbane Prosecutions, Legal Services? Task profile attached.
    1. a)
      If this goal achievable [sic], please comment, including timeframes?
    1. b)
      If the long-term goal is not achievable, please comment. Is this a permanent medical condition?
  7. Are there any concerns the QPS should be made aware of?
  8. Do you have any objection to the release of your report to the employee, employer, medical doctors, and agent, treating professionals or insurer if requested by them? Would disclosure of the information in your report be prejudicial to the officer's health or wellbeing?
  1. [17]
    Dr Stephens, by correspondence dated 14 September 2020, responded by using the corresponding numbering in Ms Brown's letter. Dr Stephens opined:
  1. Work related stress.
  2. Fatigue, agitation, difficulty sleeping, low mood, worry, reduced energy levels.
  3. Psychological therapy weekly or fortnightly depending on availibility [sic] and progress.
  4. Current options will be reviewed to potentially support Shelly further.
  5. This is uncertain due to ongoing workplace related stress Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209
  6. Returning to the workplace is not advised due to the nature of her stress currently.
  7. Resolution of conflict with her workplace.
  8. I will discuss this with Shelly and her psychologist as may not be therapeutically advised currently.
  9. I am of the opinion Shelly is able to fulfil her role from a task perspective but the workplace environment is more the concern in this case and contributor to her current distress.
  10. No.
  11. No. No.
  1. [18]
    In its submissions, the Service relevantly submitted that:
  1. While the SWU have continued to seek further information since that correspondence in September 2020 no further prognosis or current medical condition, apart from the medical certificates have been provided.
  2. The Appellant continues to be absent from the workplace and apart from an indication from the Appellant to the Injury Management Advisor of her willingness to work remotely at the QPS or another department, (information at page 7 of the correspondence letter sent to the Appellant by Executive Director Harrison on 23 March 2021 and presented in the Appellant's submission) there is no further medical information as to the capability of the Appellant to undertake any work, whether remotely or with another department.
  3. The Respondent is seeking to receive a definitive prognosis of the Appellant's current medical and psychological condition and whether the Appellant will be in a position to return to her work place when other external restraints are removed.
  1. [19]
    Annexed to Ms Dean-Braieoux's submissions was a medical certificate, partly redacted, dated 23 March 2020 from Dr Jason Wu of the Clayfield Medical Centre which stated:

Due to the current serious situation with COVID-19 world wide, I have recommended her not to travel on any international flight in the next six months. She should stay in USA (Osage Beach, Missouri, MO 65656) for the next 6 months.

  1. [20]
    Also annexed was a letter from Dr Stephens dated 30 April 2021. That letter provided:

Shelly is currently residing in the U.S.A where there is high case numbers of COVID-19 and travel risk according to the Centre for Disease Control (CDC). Travel is not routinely recommended for unvaccinated persons domestically or internationally at this time. I understand Shelly has recently completed COVID-19 vaccination course, but her dependent daughter age 15 years is currently unable to be vaccinated due to her age so is not recommended for routine travel domestically in the U.S.A or internationally. It is understandable that they would not travel separately or together at this time due to increased potential risk of COVID-19 infection, and with the recommendations in place from the CDC at present.

The Public Service Act 2008 and Directive 10/20 Independent medical examinations

  1. [21]
    Chapter 5 of the PS Act deals with staffing. Part 7 of that chapter deals with mental or physical incapacity and relevantly provides:

174 Application of pt 7

This part applies to a public service employee if-

  1. (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
  1. (b)
    the chief executive reasonably suspects that the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.

175 Chief executive may require medical examination

The chief executive may-

  1. (a)
    appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
  2. (b)
    require the employee to submit to the medical examination.
  1. [22]
    Section 179AA of the PS Act provides that a directive of the Public Service Commission chief executive may provide for matters relevant to how ch 5, pt 7 is to be applied in relation to a public service employee and that in acting under pt 7, a chief executive must comply with any such relevant directive. In that regard, cl 5.3 of the Directive relevantly provides:

Secondly, in section 174(b), the chief executive must have sufficient grounds, which have been documented, to support their reasonable suspicion that the employee’s current absence or unsatisfactory performance is caused by a mental or physical illness or disability.

The decision

  1. [23]
    In the decision, Ms Harrison set out the duties, psychological hazards, physical demands and cognitive demands of the position.
  1. [24]
    Ms Harrison recorded that the duties of the position include:
  • the accurate data entry of court results and file management on the Service's information systems;
  • the recording and management of correspondence assigned to the Police Prosecution Corps;
  • reception duties, attending to telephone calls, message services and other enquiries;
  • providing assistance to Prosecutors in various roles as required; and
  • liaising with police personnel and assisting staff in the administration functions of the Police Prosecution Corps.
  1. [25]
    Ms Harrison also recorded that the psychological hazards of the position may include:
  • exposure to verbal abuse from members of the public;
  • exposure to vicarious trauma due to being exposed to details of incidents and occurrences to which members of the public are not normally exposed;
  • the requirement to communicate with persons suffering from an altered mental state including mental illness and substance abuse; and
  • the requirement to view/transcribe material of a graphic nature.
  1. [26]
    Ms Harrison further recorded that the cognitive demands of the position involved:
  • the frequent demonstration of communication, namely, the demonstration of succinct, calm and logical communication skills to liaise with the broad spectrum of society in often demanding situations, including an effective level of verbal and written communication skills;
  • the frequent demonstration of rationality, namely, the ability to deal with challenging people, manage competing demands and emergent situations and make sound decisions under pressure;
  • the constant demonstration of the application of knowledge, namely, the demonstration of sound knowledge of policies, procedures and Service systems that apply to the role; and
  • the constant demonstration of work ethics, namely, the ability to work autonomously, as part of a team, and if required in a supervisor capacity in a diverse and dynamic work environment.
  1. [27]
    Ms Harrison then stated:

I am aware of the following:

  • You have been continuously absent from the workplace from 5 February 2020 with current medical certification to 5 June 2021;
  • You have provided medical certification as follows:
  • 5/2/20 to 4/3/20 - no medical diagnosis - is unable to perform her usual occupation
  • 21/2/20 to 30/5/20 - medical reasons - totally incapacitated
  • 21/2/20 to 12/7/20 - medical condition - total incapacity
  • 14/7/20 to 18/10/20 - medical condition - totally incapacitated
  • 18/9/20 to 27/2/21 - no medical diagnosis - is unable to perform her usual occupation;
  • 27/2/21 to 5/6/21 - no medical diagnosis - is unable to perform her usual occupation;
  • You have been residing in the United States of America since 29 February 2020;
  • In a report dated 14 September 2020, your treating General Practitioner, Dr Amelia Stephens, provided a diagnosis of "work related stress" and advised that you are unable to return to the workplace due to the nature of your current stress.

As such, pursuant to section 174 of the Public Service Act 2008 (PS Act), I am reasonably satisfied your absent since 5 February 2020 is caused by mental or physical illness or disability.

  1. [28]
    Ms Harrison then directed Ms Dean-Braieoux to submit to an independent medical examination with Dr Jetnikoff by video link on 29 April 2021 at 6.00 pm United States of America time, being 9.00 am Australian Eastern Standard Time.

Was Ms Harrison's decision fair and reasonable?

  1. [29]
    The purpose of s 175 of the PS Act is derived from a consideration of s 178 of the PS Act. That section provides:

178 Action following report

  1. (1)
    If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee's absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may-
  1. (a)
    transfer or redeploy the employee; or
  2. (b)
    if it is not reasonably practicable to transfer or redeploy the employeeretire the employee from the public service.
  1. (2)
    Subsection (1) does not limit the action that may be taken relating to the employee.
  1. [30]
    The purpose of s 175 of the PS Act is to provide the chief executive of a department with the ability to obtain a report of a medical examination by a doctor, to assist the chief executive to determine, to a state of reasonable satisfaction, if an employee's absence or unsatisfactory performance is caused by mental or physical illness or disability.
  1. [31]
    It is only after the receipt of the medical examination report and the consideration of that report, that the chief executive's discretion, to take one of the actions referred to in s 178 of the PS Act, is enlivened.
  1. [32]
    However, even if, relevantly, an employee is absent from duty, the power to require the employee to submit to the medical examination is only enlivened if the chief executive reasonably suspects the absence is caused by mental or physical illness or disability.
  1. [33]
    In the present case, the material consideration is the meaning of the phrase 'reasonably suspects' in s 174(b) of the PS Act.
  1. [34]
    The phrase 'reasonably suspects', in a different statutory context, was considered by the Full Court of the Federal Court of Australia in Goldie v Commonwealth of Australia ('Goldie').[3] In Goldie, the Full Court considered the meaning of s 189(1) of the Migration Act 1958 which provided:

If an officer knows or reasonably suspects that a person in the migration zone is an unlawful noncitizen, the officer must detain the person.

  1. [35]
    As to the meaning of 'reasonably suspects', Gray and Lee JJ stated:
  • the phrase means the detention referred to must be justifiable upon objective examination of relevant material;
  • the context of the phrase suggests that something substantially less than certainty is required;
  • reasonable suspicion, therefore, lies somewhere on a spectrum between certainty and irrationality;
  • the need to ensure that arrest is not arbitrary suggests that the requirement for a reasonable suspicion should be placed on that spectrum not too close to irrationality;
  • what is reasonable in a particular case depends upon the circumstances of that case;
  • all of the circumstances must be considered; and
  • the scheme contemplated under the Migration Act 1958 was indefinite detention pending removal or deportation under administrative fiat and those provisions confirm that the appropriate construction of s 189(1) is that an officer, in forming a reasonable suspicion, is obliged to make due inquiry to obtain material likely to be relevant to the formation of that suspicion.[4]
  1. [36]
    Stone J stated:
  • the word, 'reasonable' expresses an indeterminate standard;
  • in deciding if an officer's suspicion is reasonable, all relevant doubts and circumstances, including contradictory or insufficient evidence, should be taken into account; and
  • the reasonableness of a suspicion must be assessed in the light of the information that an officer has at the relevant time.[5]
  1. [37]
    In Ruddock v Taylor[6] ('Ruddock'), the High Court also considered the meaning of s 189(1) of the Migration Act 1958. The plurality held that what constitutes reasonable grounds for suspecting a person to be an unlawful non-citizen must be judged against what was known or reasonably capable of being known at the relevant time.[7]
  1. [38]
    In my view, similar considerations to these are a sound guide to the formation of a reasonable suspicion by a chief executive as contemplated by s 174(b) of the PS Act. This is because s 189(1) of the Migration Act 1958, and the combined effect of s 174 and s 175 of the PS Act, require that a reasonable suspicion should be formed before action is directly taken against an individual.
  1. [39]
    Therefore, having regard to the observations of Gray and Lee JJ, and Stone J in Goldie, and to the plurality in Ruddock:
  • for the suspicion of a chief executive (or his or her delegate) that a public service employee's absence is caused by mental or physical illness or disability to be reasonable, it must be justifiable upon objective examination of relevant material;
  • the reasonable suspicion should be placed on a spectrum, the spectrum being between certainty and irrationality and not too close to irrationality;
  • what is reasonable depends on all the circumstances of the case and all the circumstances must be considered;
  • all relevant doubts and circumstances, including contradictory or insufficient evidence, should be taken into account; and
  • the reasonableness of any suspicion formed by the decision maker must be justifiable in light of the facts available to him or her at a particular time or what was reasonably capable of being known at that time.
  1. [40]
    These considerations are not to supplant the statutory test in s 174(b) of the PS Act, but, as I have referred to above, my opinion is that they provide a sound guide to a person required to make a decision under s 174(b).

Ms Dean-Braieoux's submissions

  1. [41]
    Ms Dean-Braieoux submitted that not only is she employed as an Administration Officer, classification AO2, within the Major Brisbane Police Prosecution Corps of the Service, she was also '… a registered Legal Practitioner with the Queensland Law.'
  1. [42]
    Ms Dean-Braieoux submitted that pursuant to s 174(a) and s 194(1)(eb) of the PS Act, the decision was unfair and unreasonable because the suspicion that the '… Respondent holds about unsatisfactory performance, or my current absence is not reasonably held' for a number of reasons.
  1. [43]
    In summary, those reasons are that:
  • on 5 February 2020, Ms Dean-Braieoux took leave from her role to protect herself '… from further harassment harm', with the harassment, as best as I can make out, said to be issues raised by her supervisor about her work performance and the suggestion by her supervisor that she attend an appointment with a Human Services Officer, being a psychologist employed by the Service ('the HSO');
  • on or around 16 February 2020, Ms Dean-Braieoux and her daughter took a break and travelled to the United States of America during which time the COVID19 pandemic caused international borders to lockdown, in respect of which, she has received medical advice not to travel;
  • by virtue of s 37 of the Human Rights Act 2019,[8] she has a right of access to a health service that provides medical advice not to risk travel to prevent serious risks to thehealth, welfare and safety of her family;
  • by virtue of s 29[9] of the Human Rights Act 2019, 'the government' should adopt special measures to protect children which means that the best interests of a child should be taken into account in all actions affecting the child and which will depend on the child's personal circumstances; and
  • the '… Respondent's belief that my inability to return to work is caused by "mental or physical illness or disability" is unreasonable, inconsistent with the facts' and the Centre for Disease Control advice and '… Australian Government Policy'.
  1. [44]
    Ms Dean-Braieoux then submits:
  1. Pursuant to section 15 and 25 of the Human Rights Act 2019 (Qld), states that I have a right to be treated without discrimination and to protect my private information and reputation. These rights mean that public entities like the Respondent should not apply or enforce laws, policies, and programs in a discriminatory way. Respondent's decision to issue an IME despite possessing the knowledge of my location, international border shutdowns, and the safety risks of international travel is so unreasonable that it appears to be another disguised attempt for the Respondent to access my medical records and harm my reputation. I seek a referral or a review for the Respondent's decision that allowed access to my private medical information, and for discriminatory treatment for making a PID.

Public interest disclosure about non-compliant domestic violence data practices

  1. Pursuant to section 194 (1)(f) of the Public Service Act 2008 (Qld), the IME processes have been initiated through acts of reprisal from Management at Brisbane Police Prosecutions for raising public interest disclosure issues internally. The Respondent has not complied with the preparatory acts required by the Management and Employment. Principles defined in sections 25(1)(a), (d) and (e), 25(2)(a) and (b)(i), 46(1)(a) - (b), 47, 53(a), sections of the Public Service Act 2008 (Qld).
  1. [45]
    The public interest disclosure ('PID') Ms Dean-Braieoux says she made concerns her allegation that the data entry training she received for a new administrative role to which she was assigned in August 2019, within the Domestic Violence Module within the Major Brisbane Police Prosecution Corps, did not comply with all of the domestic violence data entry procedures documented in the Service's Operations Procedure Manual and Best Practice Guidelines.
  1. [46]
    Ms Dean-Braieoux then submits that:
  • she '… raised PID issues' with her supervisors verbally and in writing between 28 August 2019 and 27 November 2019;
  • following the Major Brisbane Police Prosecution Corps' alleged continued pressure on her to use the 'accepted practice' for domestic violence data practices, on 17 October 2019, she '… raised issues again and asked for an official direction in writing' which was refused;
  • following her seeking 'ethical advice' from the Queensland Law Society, she met with the relevant Inspector and made her first PID, by stating to the Inspector:
  1. her concern about the '… volatile nature of DV and that not complying with the' Service's Operations Procedure Manual presented a significant risk of harm to '… aggrieves'; and
  1. that the matter she was raising was a liability issue and could cause potential embarrassment should a death spark a coroner's inquiry;
  • she was then allegedly '… subjected to a series of targeted reprisal incidents that appear to be instigated by high-ranking officers', namely:
  1. on 21 January 2020, her supervisor made several repeated derogatory and unsupported allegations against her including labelling her as 'cognitively impaired' and 'disabled'; and
  1. on 4 February 2020, the HSO made threats on behalf of the Major Brisbane Police Prosecution Corps for her to provide consent to access her (Ms DeanBraieoux's) medical records or face disciplinary action and that the HSO fraudulently tried to access her private medical records by falsifying a consent form;
  • on 29 May 2020, she formalised '… my PID as a complaint', in response to which she received a letter, dated 14 September 2020, from the Superintendent of Prosecution Services, which stated that enquiries had been conducted into her complaint, the process was overviewed by the Service's Ethical Standards Command and that based on information available, the allegations were not capable of being supported such that no further action would be taken ('the 14 September 2020 response');
  • on 17 December 2020, she filed a request with the Ethical Standards Command to review the 14 September 2020 response and '… added additional acts of reprisal' in response to which by letter dated 22 March 2021, the Superintendent of Prosecution Services advised Ms Dean-Braieoux that no issue was found in relation to any matter she had raised about further privacy breaches;
  • on 1 June 2020, she made a complaint to the Australian Health Practitioner Regulation Agency ('AHPRA') about the issue she had raised about the HSO (referred to above) in response to which, by letter dated 19 April 2020, AHPRA found that the HSO breached '… several professional obligations, confidentiality and placed public sanctions' on the HSO; and
  • given that the HSO does not work for the Major Brisbane Police Prosecution Corps and was not a person with whom she raised her PID, '… it suggests that the abuse of power comes from someone of high rank' and:
  1. the Superintendent of Prosecution Services '… may have been part of people who attended and or influence the decisions that are made by MBPPC'; and
  1. AHPRA's decision suggests that the HSO's recording of her (Ms DeanBraieoux's) supervisor's inaccurate and unsubstantiated allegations about impairment '… may have influenced the Respondent's assertion that my absence is caused by a mental health issue or a disability.'
  1. [47]
    By way of conclusion, Ms Dean-Braieoux submitted:
  1. I seek your assistance to either conduct a review, or an independent inquiry about the contrast between the decisions, the PID data entry for domestic violence, and the Respondent's reprisal action.

The Service's submissions

  1. [48]
    The Service set out its investigation of, and its decisions concerning, Ms DeanBraieoux's allegations that she had made a PID under s 13 of the Public Interest Disclosure Act 2010.
  1. [49]
    The Service then submitted that:
  • Ms Dean-Braieoux, whilst residing in the United States of America since February 2020, had provided medical certificates from Dr Stephens (in Australia) to the SWU, including five medical certificates, with no definitive information as to the diagnosis of her condition or any prognosis as to an approximate timeline for when Ms Dean-Braieoux may be fit enough to return to work;
  • the medical certificates covered the periods:
  1. 5 February 2020 to 4 March 2020;
  1. 21 February 2020 to 12 July 2020;
  1. 14 July 2020 to 18 October 2020;
  1. 18 September 2020 to 27 February 2021; and
  1. 27 February 2021 to 5 June 2021;
  • the 11 responses from Dr Stephens in her correspondence dated 14 September 2020 to Ms Brown, identified work stress and work environment as bars to Ms DeanBraieoux returning to work and that, notably, Dr Stephens did indicate that Ms Dean-Braieoux was able to fulfil her role from a task perspective and when asked whether there were any concerns of which the Service needed to be aware, Dr Stephens' response was 'no';
  • while the SWU has continued to seek further information since the correspondence dated 14 September 2020 from Dr Stephens, no further prognosis or current medical condition, apart from the medical certificates, have been provided;
  • Ms Dean-Braieoux continues to be absent in the workplace and apart from an indication from her to the Injury Management Advisor of her willingness to work remotely with the Service or within another State government department, there is no further medical information as to the capability of Ms Dean-Braieoux to undertake any work, whether remotely or with another department; and
  • the Service is seeking to receive a definitive prognosis of Ms Dean-Braieoux's current medical and psychological condition and whether she will be in a position to return to her workplace when other external restraints are removed.
  1. [50]
    The Service then, after referring to the relevant provisions of the PS Act, the Directive and the Guidelines published by the Public Service Commission about independent medical examinations, submitted that:
  • the medical information received from Dr Stephens on 14 September 2020, with no further medical information received by the Service, other than the medical certificates stating that Ms Dean-Braieoux is unable to undertake a role for a period of time, provides the necessary nexus to establish a reasonable suspicion by the Service that Ms Dean-Braieoux has a mental or physical disability that is causing the absence; and
  • Ms Dean-Braieoux's contention that the requirement that she submit to a medical examination with Dr Jetnikoff is unfair, due to the pandemic and medical advice that she cannot currently return to Australia, is wrong because the Service is not asking Ms Dean-Braieoux to return to Australia now but, rather, the direction requiring her to submit to the medical examination is to seek medical information on a prognosis of Ms Dean-Braieoux's mental or physical condition, which is currently unknown, and which could inform the Service in providing ongoing assistance to her.
  1. [51]
    By way of conclusion, the Service submitted:
  1. The Respondent, through their ESC, has undertaken a thorough investigation into the alleged complaints and PID which had been raised by Appellant [sic]. The Appellant has been advised of the outcome of that investigation and that the PID complaints did not reach the required threshold under the legislation to be PID matters, however the complaints were investigated and unsubstantiated. The Appellant continues to state that the actions of the Respondent are forms of reprisal even after receiving information from the Superintendent of Prosecutions identifying that the Appellant was not a PI discloser. There is no reprisal against the Appellant and certainly the IME could not in any way be classed as a reprisal or an action against the Appellant.
  2. The Appellant's reference to the non compliance of the Respondent of management and employment principles in Part 3 of the PSA is ill conceived. The Respondent, the Commissioner QPS is required to provide updated reports to Government on the administration of the QPS and the effectiveness and responsiveness of its services to the Queensland Community. Other sections mentioned refer to the functions of the Public Service Commission and its responsibilities.

Ms Harrison's decision was fair and reasonable

  1. [52]
    Ms Dean-Braieoux has been absent from duty since 5 February 2020. As a consequence, the proper enquiry that Ms Harrison was to undertake was whether she reasonably suspected that Ms Dean-Braieoux's absence from duty was caused by a mental or physical illness or disability.
  1. [53]
    That was the enquiry undertaken by Ms Harrison.
  1. [54]
    For the reasons given below, Ms Harrison's decision was fair and reasonable.

The decision was justifiable upon objective examination of relevant material

  1. [55]
    Ms Harrison's decision was justifiable upon an objective examination of the relevant material. That relevant material was:
  • the five medical certificates from Dr Stephens completed on 7 February 2020, 6 April 2020, 17 July 2020, 9 November 2020 and 5 March 2021; and
  • Dr Stephens' letter to Ms Brown dated 14 September 2020.
  1. [56]
    As referred to earlier in these reasons, the effect of the five medical certificates was that upon Ms Dean-Braieoux being medically examined by Dr Stephens, Dr Stephens certified that Ms Dean-Braieoux;
  • was unable to perform her usual occupation from 5 February 2020 to 4 March 2020;
  • has and would be required to take leave from her employment due to a 'medical condition' from 21 February 2020 to 18 October 2020; and
  • has been and will be unable to perform her usual occupation from 18 September 2020 to 5 June 2021.
  1. [57]
    In Dr Stephens' letter to Ms Brown dated 14 September 2020, Dr Stephens opined that:
  • Ms Dean-Braieoux was suffering from work-related stress, the symptoms of which were fatigue, agitation, difficulty sleeping, low mood, worry and reduced energy levels;
  • it was uncertain whether a suitable duties program was appropriate for Ms DeanBraieoux due to ongoing workplace related stress; and
  • Ms Dean-Braieoux was able to fulfil her role from a task perspective but the workplace environment was more the concern in Ms Dean-Braieoux's case and was the contributor to her current distress.
  1. [58]
    Dr Wu's medical certificate, dated 23 March 2020, referred to earlier in these reasons was not material because Dr Stephens' subsequent medical certificates, referred to above, indicated that upon Dr Stephens' medical examination of Ms DeanBraieoux, Ms DeanBraieoux was either unable to perform her usual occupation or has and would require leave from her employment due to a medical condition between 5 February 2020 and 5 June 2021.
  1. [59]
    Furthermore, Dr Stephens' letter dated 30 April 2021 postdated Ms Harrison's decision and, in any event, did not deal with Ms Dean-Braieoux's mental or physical capacity to perform her usual occupation; rather, it seemed to support Ms Dean-Braieoux's decision not to travel domestically within the United States of America or internationally, due to the COVID19 pandemic. Indeed, Dr Stephens' medical certificate completed on 5 March 2021 certified that following her medical examination of Ms DeanBraieoux, Ms Dean-Braieoux had been and would be unable to perform her usual occupation between 27 February 2021 to 5 June 2021.

The decision was not irrational

  1. [60]
    Having regard to the above medical evidence upon which Ms Harrison made her decision, Ms Harrison's decision, that she reasonably suspected Ms Dean-Braieoux's absence was caused by mental or physical illness or disability, was not irrational.

All relevant circumstances were considered

  1. [61]
    In making a decision, Ms Harrison considered all relevant circumstances, namely, the medical evidence, supplied by Ms DeanBraieoux's General Practitioner, to which she referred in her decision.

There was no contradictory or insufficient evidence

  1. [62]
    In my view, there was no contradictory or insufficient evidence before Ms Harrison, when she made her decision, that would have compelled a different decision to the one she made.

The reasonableness of the suspicion was justifiable in light of the facts available at the particular time

  1. [63]
    Having regard to the medical evidence that was available to Ms Harrison, her reasonable suspicion that Ms Dean-Braieoux's absence was caused by mental or physical illness or disability was reasonable and justifiable in light of that medical evidence.
  1. [64]
    For all these reasons, Ms Harrison's decision that she reasonably suspected Ms DeanBraieoux's absence from duty was caused by mental or physical illness or disability was fair and reasonable. This is because the conditions in s 174(a) and s 174(b) of the PS Act were satisfied.
  1. [65]
    Put another way, having regard to cl 5.3 of the Directive, there was sufficient, documented grounds to support Ms Harrison's reasonable suspicion that Ms DeanBraieoux's absence was caused by mental or physical illness or disability.

The issues raised in Ms Dean-Braieoux's submissions

  1. [66]
    In my view, none of the issues raised by Ms Dean-Braieoux in her submissions are meritorious or serve to render Ms Harrison's decision not fair and reasonable.

The reasons Ms Dean-Braieoux took leave and then travelled to the United States of America

  1. [67]
    Ms Dean-Braieoux submitted that she took leave from the Service on 5 February 2020 to protect herself from further harassment harm. Assuming that to be true, it still does not detract from the objective medical evidence, referred to above, upon which Ms Harrison made her decision.
  1. [68]
    Furthermore, Ms Dean-Braieoux's voluntary decision for her and her daughter to travel to the United States of America is an irrelevant consideration having regard to the enquiry Ms Harrison had to make, namely, whether or not she reasonably suspected Ms DeanBraieoux's absence was caused by mental or physical illness or disability.
  1. [69]
    Whatever the reasons were for Ms Dean-Braieoux's voluntary travel to the United States of America, upon Ms Dean-Braieoux being medically examined by Dr Stephens, Dr Stephens certified that Ms Dean-Braieoux, from February 2020 to at least 5 June 2021, was either unable to perform her usual occupation or would be required to take leave from her employment due to a medical condition.
  1. [70]
    Further, having regard to the medical evidence at the time Ms Harrison made her decision, it was Ms Dean-Braieoux's health that was the reason she was absent from duty and not her inability to travel to Australia due to advice about restricting travel due to COVID-19. While such travel advice may be a reason for Ms Dean-Braieoux not to travel to Australia, having regard to Dr Stephens' medical certification and letter dated 14 September 2020, it was Ms Dean-Braieoux's health that was the real reason for her absence from duty.
  1. [71]
    Similarly, Ms Dean-Braieoux's reference to s 26 and s 37 of the Human Rights Act 2019 are not relevant considerations because even if it was a risk for Ms Dean-Braieoux and her daughter to travel to Australia having regard to the COVID-19 pandemic, the medical examination that Ms Harrison requires Ms Dean-Braieoux to undertake does not require Ms Dean-Braieoux, or her daughter, to leave the United States of America because it will be conducted by Dr Jetnikoff by video link from Australia.

The decision was an alleged reprisal

  1. [72]
    Ms Dean-Braieoux's submission that Ms Harrison's decision to require her to submit to a medical examination by Dr Jetnikoff is an unlawful act of reprisal, because of a PID she made, lacks any reasonable plausibility. This is because the medical evidence, to which Ms Harrison had regard in making her decision, clearly provided a justifiable and objective basis for her decision.
  1. [73]
    In addition, the matters the subject of Ms Dean-Braieoux's formalised complaint made on or about 29 May 2020, which she stated was her PID, were investigated and found to be not capable of being supported. Ms Dean-Braieoux was informed of that decision by letter dated on or about 14 September 2020 by the Superintendent of Prosecution Services which is well before the most recent medical certificates issued by Dr Stephens dated 9 November 2020 and 5 March 2021.
  1. [74]
    Ms Dean-Braieoux, as was her right, sought a review of that decision, in addition to raising other issues. By letter dated 22 March 2021 from the Superintendent of Prosecution Services, not only was the earlier decision conveyed by letter dated 14 September 2020 confirmed, Ms Dean-Braieoux was also informed that:
  • it had been determined that she was not a public interest discloser within the meaning of s 13 of the Public Interest Disclosure Act 2010; and
  • upon investigation of all of her complaints of reprisal, it was found that there was no evidence to support her allegations of reprisal.
  1. [75]
    All of these decisions taken by the Service, including the time the decisions were made, together with the medical evidence upon which Ms Harrison relied in coming to her decision, all indicate to me that it is not plausible that Ms Harrison's decision was, in any way, some form of reprisal against Ms Dean-Braieoux.
  1. [76]
    Put another way, on the material before me, I am of the view that the real reason for Ms Harrison's decision was the medical evidence that was before her.

Alleged discrimination

  1. [77]
    Ms Dean-Braieoux, by referring to s 15 and s 25 of the Human Rights Act 2019, alleged that she has a right to be treated without discrimination and to protect her private information and reputation.
  1. [78]
    Section 15(2) of the Human Rights Act 2019 provides that every person has a right to enjoy the person's human rights without discrimination. Section 25 of the Human Rights Act 2019 provides that a person has the right not to have their privacy, family, home or correspondence unlawfully or arbitrarily interfered with and not to have the person's reputation unlawfully attacked.
  1. [79]
    For the reasons I have given earlier, the decision of Ms Harrison, pursuant to s 175 of the PS Act, to appoint a doctor to examine Ms Dean-Braieoux, give a written report on the examination and to require Ms Dean-Braieoux to submit to the medical examination, was lawfully made because the elements of s 174 of the PS Act have been met. As such, her privacy has not been unlawfully or arbitrarily interfered with and her reputation has not been unlawfully attacked.

Other matters

  1. [80]
    In her submissions, Ms Dean-Braieoux referred to her supervisor making repeated derogatory and unsupported allegations about her. Even if such allegations were made, it is difficult to see, in light of the objective medical evidence upon which Ms Harrison made her decision, that there is any reasonable link between such alleged comments and Ms Harrison's decision.
  1. [81]
    Ms Dean-Braieoux also referred to the substantiated complaint she made to AHPRA about the HSO and her concern that, arising out of that substantiated complaint, her supervisors influenced Ms Harrison's decision. The submissions Ms DeanBraieoux made about this matter are speculative and, in my view, are not persuasive when considered against the medical evidence upon which Ms Harrison made her decision.
  1. [82]
    Finally, Ms Dean-Braieoux sought that the Commission conduct a review or independent enquiry about the decisions to which she referred in her submissions, the 'PID data entry for domestic violence' and the alleged reprisal action. None of these matters are justiciable before the Commission in respect of the appeal made by Ms Dean-Braieoux.
  1. [83]
    The only matter in respect of which I presently have jurisdiction to hear and determine is whether Ms Harrison's decision was fair and reasonable.

Conclusion

  1. [84]
    For the reasons given above, Ms Harrison's reasonable suspicion that Ms DeanBraieoux's absence from duty was caused by mental or physical illness or disability was justifiable upon an objective examination of the relevant material at the time of her decision.
  1. [85]
    For those reasons, Ms Harrison's decision was fair and reasonable.
  1. [86]
    I confirm the decision dated 23 March 2021 directing Ms Dean-Braieoux to attend an independent medical examination by Dr Jetnikoff, Psychiatrist.
  1. [87]
    To avoid any doubt about the effect of my decision, I will revoke the stay of the decision I ordered on 6 May 2021.

Orders

  1. [88]
    I make the following Orders:
  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
  1. To avoid any doubt, pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, ordered on 6 May 2021, is revoked.

Footnotes

[1] Acts Interpretation Act 1954 s 36 and sch 1 (definition of 'chief executive').

[2] Industrial Relations Act 2016 s 562B(3) and Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203 ('Morison'), [3]-[7].

[3] [2002] FCA 433; (2002) 117 FCR 566 ('Goldie').

[4] Goldie (n 3), [4]-[6] (Gray and Lee JJ).

[5] Ibid [51]-[52], 580 (Stone J).

[6] [2005] HCA 48; (2005) 222 CLR 612.

[7] Ibid [40] (Gleeson CJ, Gummow, Hayne and Heydon JJ).

[8] Section 37 of the Human Rights Act 2019 provides:

37  Right to health services

(1) Every person has the right to access health services without discrimination.

(2) A person must not be refused emergency medical treatment that is immediately necessary to save the

person’s life or to prevent serious impairment to the person.

[9] This is an obvious error in Ms Dean-Braieoux's submissions. Section 29 of the Human Rights Act 2019 deals with the right to liberty and security of a person. Ms Dean-Braieoux is actually referring to s 26 of the Human Rights Act 2019 (Protection of families and children) which at s 26(2) provides:

(2) Every child has the right, without discrimination, to the protection that is needed by the child, and is in the

child’s best interests, because of being a child.

Close

Editorial Notes

  • Published Case Name:

    Dean-Braieoux v State of Queensland (Queensland Police Service)

  • Shortened Case Name:

    Dean-Braieoux v State of Queensland (Queensland Police Service)

  • MNC:

    [2021] QIRC 209

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    11 Jun 2021

Appeal Status

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

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