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  4. Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) - [2021] QIRC 237

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Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 237

Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)[2021] QIRC 237

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships) [2021] QIRC 237

PARTIES:

Gunning, Matthew

(Appellant)

v

State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

(Respondent)

CASE NO.:

PSA/2021/117

PROCEEDING:

Public Service Appeal - Appeal against disciplinary decision

DELIVERED ON:

7 July 2021

MEMBER:

HEARD AT:

Merrell DP

On the papers

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 7 April 2021, is revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – disciplinary action taken against appellant pursuant to s 188 of the Public Service Act 2008 – appeal against disciplinary action – whether disciplinary action taken was proportionate to conduct – whether disciplinary action was unnecessary and not warranted – whether disciplinary action was fair and reasonable – disciplinary action was fair and reasonable – decision appealed against confirmed

LEGISLATION:

Code of Conduct for the Queensland Public Service, cl 1.5 and cl 3.1

Directive 15/20 Positive performance management

Industrial Relations Act 2016, s 539, s 562C and s 566

Public Service Act 2008, s 187 and s 188

CASES:

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

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Reasons for Decision

Introduction

  1. [1]
    Mr Matthew Gunning is employed by the State of Queensland in the position of Residential Care Officer ('RCO') within Accommodation Support and Respite Services ('AS & RS') of the Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships ('the Department'). The classification of Mr Gunning's position is OO4 and he is presently paid at pay-point 4 of that classification level.
  1. [2]
    By letter dated 10 March 2021 from Mr David Makinson, Director, South East Service Area of AS & RS, Mr Gunning was informed, in respect of a disciplinary finding made against him, that Mr Makinson, pursuant to s 188(1) of the Public Service Act 2008 ('the PS Act'), was imposing on him the disciplinary action of a reduction in his remuneration level from OO4/4(QF) to OO4/3(QF) for a period of six months ('the decision').
  1. [3]
    By appeal notice filed on 31 March 2021, Mr Gunning, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. The issue for my determination is whether the decision appealed against, and the decision-making process associated with that decision, was fair and reasonable.[1]
  1. [4]
    By order dated 7 April 2020, the decision was stayed pursuant to s 566(1) of the Industrial Relations Act 2016 ('the IR Act') until the appeal was decided and/or finalised. The parties filed and served written submissions about the appeal. Pursuant to s 539(c) of the IR Act, no hearing was conducted. The Australian Workers' Union of Employees, Queensland act as agent for Mr Gunning.
  1. [5]
    In my view, for the reasons that follow, the decision was fair and reasonable. For that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.

Background

  1. [6]
    AS & RS provides assistance to people with an intellectual disability in shared living arrangements and in short-term accommodation, and engages persons as RCOs in the provision of that service.
  1. [7]
    The role profile of a RCO under the heading of 'Your contribution' provides:

The role of the Disability Support Worker (Residential Care Officer) (DSW-RCO) is to work as part of a team supporting people with an intellectual disability in planning for and attaining lifestyles and futures which meet their individual needs and abilities that are valued in the community. As a DSW-RCO you will work with people using a person centred approach in their homes or in respite centres actively assisting them to participate in activities including leisure, personal care and household management. You will also promote participation and friendships in the local community.

  1. [8]
    One of the key requirements of the position of a RCO is:
  • Complying with the organisation's instructions and policies for Workplace Health and Safety to ensure that you do not place yourself or others at risk of injury
  1. [9]
    There is no dispute that the Department has a number of documented policies and procedures to be observed by RCOs in respect of the health and safety of its clients.
  1. [10]
    One such procedure is entitled 'Preventing and responding to abuse, assault and neglect of people with disability' ('the Procedure') which, at s 5, relevantly provides:

5 Process

All AS&RS officers and volunteers have an obligation to report and respond to the abuse, assault or neglect of people with a disability. Any AS&RS officer who becomes aware of an incident of abuse, assault or neglect of a person with a disability has an obligation to ensure that:

  • the safety and best interests of the person subjected to abuse, assault or neglect are paramount in any action taken, and
  • the matter is reported immediately using the appropriate channels, as stipulated in the policy.

Failure to report injuries, incidents or signs and indicators of abuse and/or neglect constitutes a breach of duty. Failure to report injuries, incidents or signs that could be a result of staff misconduct or negligence may constitute a breach of the DSQ Code of Conduct, and may result in disciplinary action.

The show cause on facts

  1. [11]
    In 2020, Mr Gunning and other officers were the subject of an investigation (called a Local Management Enquiry) by the Department concerning their alleged failure to provide appropriate care to clients of the Department. A report was completed in June 2020. The author of the report found that certain allegations concerning Mr Gunning were capable of being substantiated on the balance of probabilities and recommended that the relevant delegate seek advice from Human Resources regarding any consideration of commencing or not commencing disciplinary action.
  1. [12]
    By letter dated 6 January 2021, Mr Makinson advised Mr Gunning that he was of the view that Mr Gunning may be liable for disciplinary action pursuant to s 187(1) and s 188 of the PS Act in respect of two allegations.
  1. [13]
    The first allegation was that on or around 14 September 2019, Mr Gunning failed in his duty of care towards a named client by:
  • not obtaining medical treatment for an injury sustained to the client's arm at the time Mr Gunning first became aware of the injury; and
  • not reporting the injury.
  1. [14]
    The second allegation was that between 11 January 2019 and 14 November 2019, Mr Gunning failed to appropriately document and communicate concerns relating to the health and well-being of another named client. Detailed particulars of both allegations were provided in this correspondence.
  1. [15]
    In relation to the second allegation, the particulars[2] were:
  1. At all times relevant to this matter, you were responsible for providing care to client [name deleted] and two other clients at the residence.
  1. During 2019, [name deleted] had a series of health issues and a number of concerns, in particular, but not limited to:
  • A bout of conjunctivitis and open wounds on her chest and hand;
  • Faeces around and under her finger nails; and
  • Her toe nails had grown so long that they were curled over the ends of her toes and back into the flesh on the tips of her toes.
  1. During your investigation interview, when the investigator asked you:
  • What normal process you follow to ensure duty of care for [name deleted] is undertaken, you replied "I always look at her and note anything different".
  • To explain the practice the [location deleted] Team carryout in relation to personal care/toileting for [name deleted], you replied "We assist at times with washing, washing hands, bathing, earplugs. There's a plan in place for toileting. I check toilet is reasonable. She does block the toilet sometimes. I check that her hands are sanitised. Wash them, put on sanitiser".
  • Are there any plans in place, you replied "Showering plan that says to make sure she wears earplugs and a cap as she gets ear infections."
  • Why you believe that [name deleted] suffered a bout of conjunctivitis and open wounds on her chest and hand which have potentially occurred due to [name deleted] contacting bacteria or other sources of infection and then rubbing and/or scratching herself, you replied "difficult as prior to change of medication she was anxious and had erratic mood swings. She was erratic. This is why we have a job, managing this".
  • What other supports we could put in place for [name deleted] to support her health and wellbeing, you replied "if we remove hankies, there is less chance of infection. Her scratching is periodic and maybe due to stress from living with [name deleted]. He is loud and vocal. Possibly more apparent for self-harm if [name deleted] is being loud ".
  • What you could tell them about Ms Hahn observing faeces around and under [name deleted] fingernails, you replied "I have never seen faeces under nails. Never. Never read in report book or it may be possible but I can't remember".
  • How concerns about clients are documented or shared, you replied "we have discussions in team meetings, talk among staff, trial strategies. The hankie withdrawal has helped. I couldn't tell you how long she had the hankie and it caused infection".
  • How concerns were communicated, you replied "If we had any real concerns, we ring the Team Leader. Joanna [Ms Lenske] rang two to three times a day, She visited weekly. DSTL would be there several times a week. Medicals are documented, I take medication files and get these completed. I note in the report book".
  • If you recall whether it was recorded in the Report Book or any communication regarding faeces under [name deleted] nails, you replied "I didn't see one. Generally, I would find things in the book. Every few days seemed like a major crisis. So much on our plate, we were brow beaten and we were overwhelmed".
  • Whether you noticed that [name deleted] toenails had grown so long that they were curled over the ends of her toes and back into the flesh on the tips of her toes, you replied "I did not observe this".
  • Whether you were aware of the recommendation provided by the Podiatrist to support the [location deleted] Team to carryout personal care to [name deleted] toenails, you replied "no, I don't believe this is our job anyway. If I'm asked to do this, I get conflicting advice. Never seen a plan that talks about nail filing".
  • What the practice is for escalating your own or the team's concerns regarding clients, you replied "I ring TL [Team Leader] first thing".
  • If you are ringing, how this is evidenced, you replied "I put a notation in the report book about client welfare, I comment. I always do this regularly in the health and comments section. I do this regularly".
  • How you would raise an issue, you replied "I would write an agenda or Report Book. I would find a way. I say Joanna [Ms Lenske], I am not the Team Leader of this house but I am forever telling people the small things that I harp about. I would say to Joanna if I had to say something".
  • Whether team minutes were available to read and whether you read them, you replied "yes they are available and yes I read them".
  1. [16]
    There were a number of attachments to the letter including a redacted copy of the investigation report.
  1. [17]
    In relation to both allegations, Mr Makinson stated:

Possible Grounds for Discipline

If accepted, the allegation could constitute grounds for discipline pursuant to section 187(1)(a) of the PS Act in that you have engaged in serious under performance of your duties by carelessly neglecting the health and hygiene needs of a client in your care.

Alternatively, the allegation could constitute grounds for discipline pursuant to section 187(1)(g) of the PS Act, in that you have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. Specifically, the Code:

  • Principle 1 - Integrity and impartiality, 1.5 - Demonstrate a high standard of workplace behaviour and personal conduct - (c) ensure the safety, health and welfare of ourselves and others in the workplace, whether co-workers, or clients.
  • Principle 3 - Commitment to the system of government, 3.1 - Commit to our roles in public service - (e) adhere to the policies, organisational values and organisational documents of our employing agency.
  1. [18]
    In relation to the second allegation, Mr Makinson also stated:

The allegation, if proven, could constitute grounds for discipline pursuant to one of the abovementioned subsections of the PS Act because you:

  1. Failed to ensure [name deleted] health, safety and wellbeing in a manner consistent with the DS Act, HSQS and departmental policy, procedure and practice guidelines, by not recording and reporting [name deleted] personal hygiene and ongoing health issues.
  1. Failed to seek advice from your Team Leader or DSTL in relation to [name deleted] personal hygiene and ongoing health issues in order to ensure [name deleted] received high quality care.
  1. [19]
    Mr Makinson afforded Mr Gunning the opportunity to respond, in writing, within 14 days of Mr Gunning's receipt of Mr Makinson's letter, to show cause why a disciplinary finding should not be made against him in relation to the two allegations.
  1. [20]
    Mr Gunning responded by email dated 12 January 2021. Mr Gunning stated that:
  • he had fully participated in the investigation process;
  • he was distressed and saddened by the accusations made against him as a RCO; and
  • he had consulted with his Union to act on his behalf, and that he and his Union were in agreement that, at that stage, there was nothing further he could add.

The show cause on penalty

  1. [21]
    By letter dated 28 January 2021, Mr Makinson informed Mr Gunning that he had fully and carefully considered all the evidence available to him including Mr Gunning's response. Mr Makinson was satisfied that, on the balance of probabilities, both allegations were substantiated.
  1. [22]
    In relation to the second allegation, Mr Makinson stated:

Analysis

I note that in your response you provided no new or further information for me to consider in relation to this matter. During your interview you suggested that you ensure your duty of care to [name deleted] by always looking at her and noting anything different. However, if you had done this as part of your role, you would have noticed the open wounds to [name deleted] chest and hand and the conjunctivitis she was suffering. As an RCO you hold a position of trust and have an obligation to ensure the health, safety and wellbeing of the clients you serve. By failing to notice or treat [name deleted] injury, you not only put [name deleted] health and safety at risk, but your actions were a departure from that expected of an experienced RCO.

  1. [23]
    Mr Makinson determined, on the basis of his finding of the second allegation, that Mr Gunning contravened s 187(1)(a) of the PS Act in that he engaged in serious under performance of his duties by carelessly neglecting the health and hygiene needs of the client in his care. Specifically, Mr Makinson stated this was because Mr Gunning:
  • failed to ensure the client's health, safety and well-being by neglecting his responsibilities to attend to the client's care; and
  • failed to seek medical attention for the client.
  1. [24]
    Mr Makinson informed Mr Gunning that he was currently giving serious consideration to reducing his remuneration level from OO4/4(QF) to OO4/3(QF) and afforded Mr Gunning seven days from the date of his receipt of Mr Makinson's letter to make submissions in relation to that proposed disciplinary action.
  1. [25]
    In doing so, Mr Makinson relevantly stated:

Your written response, if any, will be considered in my final determination of any disciplinary action that may be taken in accordance with section 188 of the Act, together with consideration of all other available information and relevant matters including:

  • the seriousness of your conduct
  • your overall work record
  • any extenuating circumstances which may have had a bearing on your conduct or the assessment of it
  • the degree of risk to the health and safety of staff and clients posed by your conduct
  • the potential impact of your conduct on your ability to perform the duties of your role
  • the potential impact of your conduct on public and client confidence in the department; and
  • any explanation that you have already provided.

If I have not received your response within seven days, I will make a decision based on the material currently available to me.

  1. [26]
    Mr Gunning responded to Mr Makinson's correspondence dated 28 January 2021 by email dated 19 February 2021.
  1. [27]
    In responding, Mr Gunning made submissions that went to the two disciplinary findings made by Mr Makinson. On my reading of Mr Gunning's submissions, made in response to Mr Makinson's correspondence dated 28 January 2021, Mr Gunning made no submissions that went to whether the proposed disciplinary action was, in respect of the two substantiated allegations found by Mr Makinson, fair, reasonable and proportionate.

The decision

  1. [28]
    Mr Makinson, very fairly, gave further consideration to the disciplinary findings he had made earlier in his correspondence dated 28 January 2021 by having regard to the further submissions made by Mr Gunning.
  1. [29]
    In relation to the first substantiated allegation, Mr Makinson took into account the further submissions made by Mr Gunning about the facts and determined that there was insufficient evidence to proceed with the allegation and that he would be taking no further action in relation to it.
  1. [30]
    In relation to the second substantiated allegation, Mr Makinson took into account the further submissions made by Mr Gunning about the facts. In this regard, Mr Makinson determined:

You state in your response that "During this Time Period we are left with a vague timeline, 11 Months [11 January 2019 and 14 November 2019] but no specific Date nor Time for which I am solely responsible". The timeframe used to undertake the investigation, was as a result of several concerns being raised regarding the health and wellbeing of client [name deleted] over this period. I am aware that there are other staff members involved in the care of [name deleted] and the matters raised involve all those responsible for her care, not just yourself.

You also indicated in your response that there were a number of time periods that you were away from [location deleted] during which you may have been on sick leave, recreation leave, redeployed or placed on area relief and therefore could not be responsible for providing care to [name deleted] during these times. I have reviewed your roster for the period in question and have found that during this timeframe you were rostered to work at [location deleted] for a period of 218 days. Of the 218 days you were on sick leave for 11 days and on recreation leave for 18 days. Therefore, you were responsible for providing care to [name deleted] for a period of 189 days during this time.

You attest that your conduct regarding [name deleted] care was reasonable throughout the period in question and that [name deleted] attended all medical appointments required when necessary on your shifts. I have considered the transcript of your investigation interview and your response regarding the care you provided to [name deleted]. Given the severity of [name deleted] health issues and concerns over a long duration, I do not believe that your actions were in keeping with that of an experienced RCO. You also hold a position of trust and have an obligation to ensure the health, safety and wellbeing of the clients you serve. By failing to notice or treat [name deleted] health and wellbeing and subsequently report her health issues and concerns as identified in your investigation interview, you placed her health at risk which is a departure from what is expected of you in your role.

  1. [31]
    Having regard to the above, Mr Makinson confirmed his decision of 28 January 2021 that, pursuant to s 187(1)(a) of the PS Act, Mr Gunning was liable for disciplinary action pursuant to s 188 of the PS Act on the grounds that he engaged in serious under performance of his duties by carelessly neglecting the health and hygiene needs of a client in his care. Clearly, this decision related only to the second substantiated allegation.
  1. [32]
    In this regard, Mr Makinson determined to impose a lesser penalty than that proposed in his previous letter and determined that he would take the disciplinary action of reducing Mr Gunning's remuneration from OO4/4(QF) to OO4/3(QF) for a period of six months.
  1. [33]
    In imposing the above disciplinary action, Mr Makinson relevantly decided:

I expect that this disciplinary penalty will serve to correct your behaviour and that from this point forward you will be mindful of your responsibilities and obligations as they relate to you carrying out your duties towards our clients. I strongly warn you that in future, any substantiated inappropriate conduct will not be tolerated and may result in a more serious disciplinary outcome, up to and including consideration of the termination of your employment.

Mr Gunning's appeal grounds and submissions

  1. [34]
    Mr Gunning contended that the disciplinary decision was not fair and not reasonable because the disciplinary penalty imposed was:
  • disproportionate to the conduct alleged;
  • unnecessary considering the context of the allegations; and
  • not warranted on the basis of the information provided by him.

The penalty was disproportionate

  1. [35]
    Mr Gunning submitted that having regard to his length of service, demonstrated ability and good prior conduct, the disciplinary penalty imposed was disproportionate.
  1. [36]
    Mr Gunning pointed to the fact that he had been employed by the Department since 31 October 2000, had demonstrated his ability with the Department considering his length of service, did not have any prior disciplinary action taken against him and had received citations, commendations and awards for his positive work conduct.
  1. [37]
    Mr Gunning submitted that no disciplinary action, on the basis of these mitigating factors, should be taken against him and that the disciplinary action imposed was harsh considering his '… unblemished disciplinary history.'

The disciplinary action was unnecessary and not warranted

  1. [38]
    Mr Gunning referred to his cooperation with the investigation and the dates of responses he provided. Mr Gunning then summarised the responses he provided to the Department, earlier in the disciplinary process, about the second allegation. In this regard, Mr Gunning submitted:
  1. The Appellant submits that the Respondent has not taken into consideration the entire particulars of the submissions provided, and that if the Respondent turned its mind to appreciate and understand the entire particulars provided by the Appellant, it would not have made the decision in question.
  1. The Appellant refers to the case of Mathieu v Higgins in which Daubney J expressed the view that Kirby P's view in Pillai v Messiter was instructive. In the latter case, Kirby P said the following:

… But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

  1. In consideration of the decision in Mathieu v Higgins, the Appellant submits that there has not been a deliberate departure from the accepted standards, and refers to his responses outlined to the Respondent.
  1. The Appellant submits that this is a matter that should have been properly and appropriately dealt with through ordinary performance reviews, particularly given the Appellant's unblemished employment record with the Respondent.[3]
  1. [39]
    The relief sought by Mr Gunning is that the disciplinary penalty be rescinded.

The Department's submissions

Whether the disciplinary penalty was proportionate

  1. [40]
    The Department submitted that:
  • the evidence before the relevant delegate included reports that, over a long duration, the client had suffered a bout of conjunctivitis and open wounds on her chest and hands, had faeces around and under her fingernails, had toenails that had grown so long they were curled over the ends of her toes and back into the flesh on the tips of her toes;
  • the relevant delegate weighed all this evidence against Mr Gunning's denials of the allegation and claims that his conduct regarding the client's care was reasonable throughout the period in question;
  • Mr Gunning also claimed that he ensured his duty of care to the client by always looking at the client and noting anything different, however, given the severity and duration of the client's ongoing health issues, the delegate determined that on the balance of probabilities, Mr Gunning neglected his responsibilities as a RCO by not paying attention to the client's ongoing health issues, thereby failing to ensure the client's health, safety and well-being and consequently failed to record or, in the alternative, report the client's ongoing health issues;
  • the delegate did consider Mr Gunning's employment history in his decision, both in relation to the disciplinary finding and penalty, however, given the severity and duration of the client's health issues and concerns, the delegate did not believe that Mr Gunning's actions of failing to notice the client's health issues and appropriately documenting and communicating them, were in keeping with that of an experienced RCO; and
  • despite Mr Gunning's employment history and the awards and citations he submitted (which were not previously submitted by Mr Gunning to the decision maker), the Department submitted that Mr Gunning had not maintained the standards he achieved early in his career and that, as a consequence, the disciplinary penalty was required to correct his behaviour.

Whether the disciplinary action was unnecessary and not warranted

  1. [41]
    The Department submitted that there was no finding that Mr Gunning had been found guilty of misconduct but rather that he had contravened s 187(1)(a) of the PS Act which concerns serious under performance of duties, with the consequence that the case law referred to by Mr Gunning has no bearing on the findings made against him.
  1. [42]
    The Department, in response to the submissions Mr Gunning made about his responses during the disciplinary process, relevantly submitted:
  1. The department submits that points 16(a)(ii), 16(a)(iii) and 16(a)(iv) are contradictory and without evidence. Mr Gunning states in 16(a)(ii) that he verbally reported concerns about [name deleted] care to his Team Leader and [name deleted] care providers however, in addition to there being no evidence of this, Mr Gunning stated at 16(a)(iv) that during the relevant period he did not see any new or unusual health issues with [name deleted]. Mr Gunning also stated that he, 'did not report any issues with [name deleted] health and welfare because he did not witness any.' Further, in relation to point 16(a)(iii), the department submits that there is no evidence that Mr Gunning recorded or communicated that one of [name deleted] podiatrist instructed him not to cut her toenails. Mr Gunning's claim is contrary to the podiatrist's instruction on 27 June 2019 for [name deleted] nails to be filed weekly and the memo dated 15 November 2019 that stated that clients' nails need to be checked for trimming every Sunday.

…

  1. Mr Gunning advised in point 20 that the matter should have been properly and appropriately dealt with through performance reviews. The department submits that the delegate was of the view that, given Mr Gunning's extensive experience as an RCO and the multiple reminders that were provided through memos to staff regarding health care to clients of the house, a performance improvement plan would not be an appropriate measure to correct Mr Gunning's behaviour. Rather, the delegate was of the view that more significant action was required in this instance.
  1. In summary the department submits that Mr Gunning failed to undertake his duties with due care and diligence to ensure the safety, health and wellbeing of [name deleted]. It was evident to the delegate that, despite Mr Gunning being an experienced RCO and the reminders of his obligations in regards to providing health support for clients through the distribution of numerous memos, Mr Gunning continued to neglect his responsibilities to care for [name deleted] and consequently failed to communicate or document her ongoing health issues. The delegate therefore determined that a significant penalty was required to correct Mr Gunning's behaviour and ensure that he did not repeat his actions. The department submits that the delegate's decision was well considered, necessary and proportionate when balanced against Mr Gunning's inappropriate conduct and that the disciplinary penalty was not harsh, unjust or unreasonable in the circumstances.[4]

Mr Gunning's submissions in reply

  1. [43]
    In his reply, Mr Gunning submitted that:
  • the submission by the Department that the disciplinary action is warranted because of his long career and clear record means that, in effect, he is being disadvantaged by having no previous disciplinary performance issues;
  • the Department's submissions that the penalty is warranted because he was made aware of issues through memoranda sent to all staff is not meritorious because the relevant memoranda were either sent outside the relevant time period or were not relevant to the subject allegation;
  • the circulation of some memoranda to staff, not solely to himself, does not constitute positive management performance under s 25A of the PS Act or under Directive 15/20 Positive performance management because the action did not draw to his attention the performance the Department believed required improvement;
  • rather than being disadvantaged for his unblemished record and career, the Department should have dealt with the issues through positive performance management processes;
  • some of the lack of personal care findings regarding the client did not happen during one of his shifts and the Department has provided no evidence that such incidents occurred during one of his shifts;
  • he did communicate concerns about the client by, for example, in one of his investigation interviews, identifying the hanky which the client carried which might be the cause of conjunctivitis; and
  • in relation to the client's general care, including her sores and toenails, he did follow the care and medication plans for those matters.
  1. [44]
    In summary, Mr Gunning submitted:
  1. The penalty proposed by the Respondent will have a significant impact on the Appellant's ability to provide for his family. The Appellant has four (4) dependent children at home. His pay decrease will negatively affect his family presently, and the Appellant's future superannuation once he retires.
  1. The Appellant loves his job and cares about the clients in his care. He takes pride in his role and is willing to undergo any refresher training the Respondent deems necessary.
  1. In all of the circumstances, the Appellant submits that the Respondent should have dealt with these matters through a positive performance principles process, rather than choose to discipline him.
  1. The Appellant requests that the decision be set aside and substituted for a decision that the Appellant participate in appropriate training and/or a performance improvement program.

The decision appealed against is fair and reasonable

  1. [45]
    Mr Gunning, in his submissions, challenges the decision substantiating the second allegation and the decision imposing the disciplinary penalty on the basis that the second allegation was substantiated.
  1. [46]
    In my view, Mr Makinson's decisions in respect of the substantiation of the second allegation, and in relation to the penalty imposed, were fair and reasonable.

The disciplinary action was necessary and was warranted

Mr Gunning's cooperation with the investigation and the provision of responses

  1. [47]
    The first basis upon which Mr Gunning contends the disciplinary action was unnecessary and was not warranted was due to his cooperation with the investigation and the responses he provided.
  1. [48]
    This is not a basis to contend that the substantiated allegation made by Mr Makinson was unnecessary and unwarranted. That Mr Gunning cooperated with the investigation and answered questions cannot, logically, mean that the substantiation of the second allegation was unwarranted.
  1. [49]
    Clearly, Mr Gunning provided responses to the author of the investigation report and during the disciplinary process. These were taken into account by Mr Makinson. Mr Makinson referred to Mr Gunning's evidence, during his interview as part of the investigation, in which Mr Gunning suggested that he ensured his duty of care to the client concerned by looking at her and noting anything different. Mr Makinson also found that in Mr Gunning's response to the show cause on facts, Mr Gunning provided no new or further information for Mr Makinson to consider in the matter.
  1. [50]
    Mr Gunning submitted that the reason for the brevity of his response dated 12 January 2021 was his father's serious illness in December 2020. Mr Gunning expressly submitted that he was not in a position to respond thoroughly to the show cause on facts for that reason. No mention of his father's illness, as being the reason for the brief response, was referred to in any response to Mr Makinson. Furthermore, in his response dated 12 January 2021, Mr Gunning stated that he had consulted with his Union to act on his behalf and that he and his Union were '… in agreement that at this stage there is nothing further I can add.' For these reasons, there was nothing unfair or unreasonable in Mr Makinson taking Mr Gunning's response dated 12 January 2021 at face value.
  1. [51]
    There was no dispute that the client concerned had the injuries noted in the investigation. Mr Makinson found that if Mr Gunning had observed the client and noted anything different, as part of his role, he would have noticed the open wounds to the client's chest and hand, and the conjunctivitis from which she was suffering. There is nothing unfair or unreasonable in respect of Mr Makinson's approach to the evidence that was before him in coming to this conclusion.

The alleged failure of the decision maker to determine that Mr Gunning had not engaged in misconduct

  1. [52]
    In Mr Makinson's correspondence dated 6 January 2021, being the show cause on facts, he stated that if the facts concerning the second allegation were substantiated, Mr Gunning could be liable pursuant to s 187(1)(a) of the PS Act. That section relevantly provides that a public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee had engaged in '… repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently.'
  1. [53]
    Mr Makinson did not allege that if the second allegation was substantiated, Mr Gunning could be guilty of misconduct within the meaning of s 187(1)(b) of the PS Act. The case law referred to by Mr Gunning in his submissions in relation to this matter concerns the meaning of 'misconduct' in statutes that provide for disciplinary action and does not concern an allegation that an employee has engaged in serious under performance of the employee's duties.
  1. [54]
    On the basis of the investigation report and in light of Mr Gunning's response dated 12 January 2021, it was open to Mr Makinson to conclude, as he did, that the second allegation was substantiated, namely, that Mr Gunning had engaged in serious under performance of his duties by carelessly neglecting the health and hygiene of the relevant client that was in his care.
  1. [55]
    For this reason, Mr Makinson's decision that the second allegation was substantiated was fair and reasonable.

The other issues raised by Mr Gunning

  1. [56]
    In his submissions, Mr Gunning, in paragraph 16, set out other reasons why the disciplinary action was unnecessary and not warranted.
  1. [57]
    The fact that Mr Gunning denied the allegations and provided context, by way of his responses to the show cause issued against him, does not render Mr Makinson's decision not fair and not reasonable.
  1. [58]
    Mr Gunning asserts that he did verbally raise concerns in relation to the client's care with his team leader and the client's care providers as appropriate. However, in his submissions, Mr Gunning does not expressly point to any evidence in support of that assertion.
  1. [59]
    I have read the summary of Mr Gunning's interview that took place on 6 March 2020 as part of the investigation. Mr Gunning was interviewed in the presence of his support person. In his interview, Mr Gunning stated that he had been a RCO in the house, in which the client the subject of allegation two was being supported, for about three years. There are only three clients who reside at that one house. At no time did Mr Gunning state that he verbally raised concerns in relation to the client's care, or with his team leader, in relation to the client's health issues (conjunctivitis, open wounds on her chest and hand, faeces under the client's fingernails and the state of the client's toenails) that were the subject of the allegation.
  1. [60]
    In his submissions in reply, Mr Gunning referred to the fact that he had identified the hanky carried by the client, which might be a cause of conjunctivitis, as being a clear example of him communicating concerns about, and suggesting support for, the client contrary to the allegation. While this is an example of Mr Gunning complying with his relevant duties as a RCO, it does not render Mr Makinson's finding, that Mr Gunning failed to ensure the client's health, safety and well-being, not fair and not reasonable.
  1. [61]
    Indeed when it was put to Mr Gunning that the client suffered a bout of conjunctivitis and open wounds on her chest and hand in 2019, he stated: 'It's possible.' When asked what normal processes he followed to ensure that his duty of care for the client was carried out he stated: 'Always look at her and note anything different. Like all clients.' None of these responses, in my view, are supportive of Mr Gunning's submission. The responses were part of the evidence upon which Mr Makinson could fairly and reasonably come to his conclusion that the second allegation was substantiated. In my opinion, it is remarkable that if Mr Gunning was making the observations of the client as he suggested, that the client's conjunctivitis, the open wounds to the client's chest and hands, the faeces under the client's fingernails and the state of the client's toenails, went unnoticed by him.
  1. [62]
    In his submissions, Mr Gunning referred to his recollection that on an unspecified date in 2020, he recalled asking one of the client's podiatrists if he could clip the client's toenails in between podiatry appointments to which the podiatrist responded in the negative because if Mr Gunning nicked the client's skin it could cause an infection. Mr Gunning submitted that he took this as a direction from a service provider and did not try to clip the client's toenails. In his interview, Mr Gunning did not expressly refer to this alleged conversation with the (unnamed) podiatrist. Mr Gunning stated that he did not believe it was a RCO's job to file the client's nails and that if a podiatrist asked him to file the client's nails, he would ask the podiatrist how to do it and to ask for a plan to be developed so everyone would know. Mr Gunning stated he had never seen a plan that talked about nail filing. Yet, the evidence was that a specifically named podiatrist visited the client in the months of April, June, September and November 2019. On 27 June 2019, the podiatrist, in writing, recommended that the client's nails be filed on a weekly basis to help keep them short.
  1. [63]
    In the interview, Mr Gunning stated he did not observe that the client's toenails had grown so long that they were curled over the end of her toes and back into the flesh on the tips of her toes. Again, in my view, it is remarkable, if Mr Gunning was making the observations of the client as he suggested, that the (undisputed) state of the client's toenails went unnoticed by him.
  1. [64]
    Mr Gunning further submitted that he was not present on some dates when the client's health and welfare were of concern, namely, that he had been on leave for 14 days prior to 8 December 2019. However, the allegation was that between 11 January 2019 and 14 November 2019, he failed to appropriately document and communicate concerns relating to the health and well-being of the client. For this reason, I am not persuaded that the submission made by Mr Gunning means that the disciplinary action taken against him was unnecessary or not warranted.
  1. [65]
    Mr Gunning then submitted that the client's mother and appointed guardians raised no concerns with him in relation to the client's health. I am not persuaded by this submission. No evidence was provided in support of this submission, for example, relevant statements from the client's mother or the appointed guardians. For this reason, I am not persuaded that this submission means that the disciplinary action taken against Mr Gunning was unnecessary or not warranted.
  1. [66]
    Mr Gunning also submitted that the original allegation was that he failed to document and communicate concerns in relation to the client's health and well-being but that Mr Makinson's finding in his letter dated 28 January 2021 was that Mr Gunning failed to attend to the client's care, being a finding that is materially different and goes beyond the original allegation. Specifically, Mr Gunning submitted that he responded to the alleged failure to document and communicate and not an allegation that the actual care he provided to the client was inadequate.
  1. [67]
    The Department submitted that Mr Makinson, in his decision dated 28 January 2021, found that Mr Gunning contravened s 187(1)(a) of the PS Act because he failed to ensure the client's health, safety and well-being by neglecting his responsibilities to attend to the client's care and that he failed to seek medical attention for the client. However, the Department then submitted that finding was not materially different to, and did not go beyond, the original allegation in that documenting and reporting concerns are fundamental components of Mr Gunning's requirement to attend the client's care.
  1. [68]
    I agree.
  1. [69]
    The allegation in the show cause on facts was that between 11 January 2019 and 14 November 2019, Mr Gunning failed to appropriately document and communicate concerns relating to the health and well-being of the client. The extensive particulars of that allegation are set out earlier in these reasons.
  1. [70]
    Mr Makinson also stated, as reproduced in paragraph [18] of these reasons, that the allegation, if proven, could constitute grounds for discipline because Mr Gunning failed to ensure the client's health, safety and well-being in a manner consistent with the Department's policies, procedures and practice guidelines by not recording and reporting the client's personal hygiene and ongoing health issues and failing to seek advice from his team leader in relation to the client's personal hygiene and ongoing health issues in order to ensure the client received high-quality care. This was part of the allegation against Mr Gunning. For these reasons, the express finding made by Mr Makinson in his letter dated 28 January 2021 was not materially different to the allegation he actually put to Mr Gunning for his response about facts dated 6 January 2021.

The disciplinary action was proportionate

  1. [71]
    Mr Gunning points to his length of service, his demonstrated ability and his good standard of prior conduct. Mr Makinson, in determining the disciplinary penalty, reduced the penalty from that originally contemplated in his correspondence dated 28 January 2021 (a reduction in pay-point for a period of 12 months) because Mr Makinson, in the decision, did not take any further action in relation to the first allegation.
  1. [72]
    Mr Makinson did not expressly state that he took into account, in determining the disciplinary penalty of a reduction in pay-point for a period of six months, Mr Gunning's length of service and work record. However, in my view, having regard to the nature of the substantiated second allegation, and taking into account Mr Gunning's long and otherwise good work record, I cannot conclude that the disciplinary penalty imposed was not fair or not reasonable.
  1. [73]
    The aim of disciplinary proceedings is not to punish but to protect the public; however, such an aim is achieved by the imposition of actual punishment subject to the principle of parity.[5] On the basis of the substantiated allegation, Mr Gunning did engage in serious under performance of his duties. To ensure the protection of the public, some punishment needs to be imposed on Mr Gunning. The basis upon which Mr Makinson imposed the disciplinary penalty was that of deterrence. A reduction in Mr Gunning's pay-point for a period of six months, in my view, reasonably meets that purpose.
  1. [74]
    In his submissions in reply, Mr Gunning refers to the impact a reduction in pay-point will have on his family of four dependent children. No evidence was provided in support of that submission. No doubt there will be some financial impact on Mr Gunning. A disciplinary penalty that results in a reduction in remuneration has such an effect. However, that is part of the deterrent effect of the disciplinary penalty.

Conclusion

  1. [75]
    The question in this case is whether Mr Makinson's decision dated 10 March 2021 was fair and reasonable.
  1. [76]
    For the reasons given above, the decision was fair and reasonable.
  1. [77]
    The decision appealed against is confirmed.
  1. [78]
    To avoid any doubt, the order staying the decision appealed against, made on 7 April 2021, is revoked.

Orders

  1. [79]
    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. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against, made on 7 April 2021, is revoked.

Footnotes

[1] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [6] (Deputy President Merrell).

[2] Footnotes omitted.

[3] Citations omitted.

[4] Footnotes deleted.

[5] Nesbit v Metro North Hospital and Health Service [2021] ICQ 005, [99] (Davis J, President).

Close

Editorial Notes

  • Published Case Name:

    Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • Shortened Case Name:

    Gunning v State of Queensland (Department of Seniors, Disability Services and Aboriginal and Torres Strait Islander Partnerships)

  • MNC:

    [2021] QIRC 237

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    07 Jul 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
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
2 citations
Jump To
Cite 1 - [2020] QIRC 203
Cite 2 - [2020] QIRC 203
Nesbit v Metro North Hospital and Health Service [2021] ICQ 5
2 citations
Jump To
Cite 1 - [2021] ICQ 5
Cite 2 - [2021] ICQ 5

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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