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  4. Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) - [2021] QIRC 265

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Rimland v State of Queensland (Department of Communities, Disability Services and Seniors)[2021] QIRC 265

Rimland v State of Queensland (Department of Communities, Disability Services and Seniors)[2021] QIRC 265

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rimland  v State of Queensland (Department of Communities, Disability Services and Seniors) [2021] QIRC 265

PARTIES:

Rimland, Suzanne

(Appellant)

v

State of Queensland (Department of Communities, Disability Services and Seniors)

(Respondent)

CASE NO:

TD/2019/60

PROCEEDING:

Application for reinstatement

DELIVERED ON:

30 July 2021

HEARING DATE:

19 and 20 April 2021

MEMBER:

HEARD AT:

Pidgeon IC

Brisbane

ORDER:

The application is dismissed

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – application for reinstatement – where the applicant became an employee affected by workplace change – where the applicant was in the process of redeployment – where the applicant declined transfers on the basis of suitability matters involving skill and a medical condition – where the applicant is directed to attend an independent medical examination pursuant s 175 of the Public Service Act 2008 – whether the chief executive should be reasonably satisfied the employee is not performing their duties satisfactorily – whether the chief executive should have formed a reasonable suspicion that employees unsatisfactory performance is caused by mental illness – whether the applicant refused to follow a lawful direction – where employee failed to participate in an independent medical examination

LEGISLATION:

Industrial Relations Act 2016 (Qld), s 316, s 317, s 320

Public Service Act 2008 (Qld), s 174, s 175, s 187

Directive 17/16 – Supporting employees affected by workplace change

Directive 1/18: Managing employee Health, Safety and wellbeing - Independent Medical Examinations

CASES

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

Gold Coast District Health Service v Walker (2001) 168 QGIG 258

Laegal v Scenic Rim Regional Council [2018] QIRC 136

APPEARANCES:

Ms S Rimland as self-represented applicant

Ms C Laird of Mazars for the Respondent

Decision

Background

  1. [1]
    Ms Rimland was employed by the State of Queensland in the Respondent then known as Communities, Disability Services and Seniors.  In 2018, Ms Rimland became an employee affected by workplace change and a process was commenced to seek to place her in an alternative position under (now superseded) Directive 17/16 – Supporting employees affected by workplace change (the SEAWC Directive).
  1. [2]
    Following a range of events which will be considered below, the Respondent made a decision to direct Ms Rimland to attend an Independent Medical Assessment under s 175 of the Public Service Act 2008 (PS Act).
  1. [3]
    On 7 May 2019, Ms Rimland received a show cause letter inviting her to respond to one allegation and to the proposed disciplinary penalty being considered by the decision maker.  The letter provided the following background to the allegation and proposed disciplinary penalty:

As you are aware, there have been significant concerns in relation to the department's ability to successfully place you in an appropriate position since your National Disability Insurance Scheme (NDIS) impacted role ended in July 2017.  This has included a history of unsuccessful attempts to place you in suitable, alternative employment, including a recent permanent placement in the Department of Child Safety, Youth and Women.  You were subsequently transferred back to the department when that placement failed after a very short time. Due to the concerns about your capacity for work and/or fitness for duty, the Directive 17/16 – Supporting Employees Affected by Workplace Change (SEAWC) pathway cannot be used to identify an appropriate placement for you.

I note that you provided a letter dated 31 July 2018 from your General Practitioner that was potentially contradictory; although it supported your continued employment as a psychologist in the Queensland Government, it also advised that due to an unspecified medical condition, there were significant restrictions on the type of role you can safely undertake. These restrictions are largely incompatible with the type of work required of a psychologist in a public service human services organisation. Given these medical concerns, you were placed in a temporary role performing basic administrative work.

Given your reported restrictions, it appears that your capacity to perform the inherent requirements of a range of roles are more limited than would be reasonably expected on the basis of your qualifications and reported experience. Accordingly, as the underlying basis for these limitations remain unclear, it was deemed necessary for the department to seek more definitive medical information in order to fully understand the nature and extent of any underlying medical illness or significant vulnerabilities that may pertain to you, before considering any future placement opportunities.

Consequently, you were directed under section 175 of the Act, to attend an IME at the expense of the department. The following IMEs were subsequently scheduled and you were advised of the details as follows, but you refused to attend either one.

….

Given that you failed to attend the two scheduled IMEs, I have determined that it is not viable to continue with this course of action. I am of the view that the department has now expended significant resources and exhausted every option reasonably available that could have facilitated your placement in a position that you believe is suitable for your specialised competency. Given your reported limitations, and the provision of your treating medical practitioner's advice that your workplace must not exacerbate your unspecified medical condition, the only option remaining to the department was to seek further medical advice by way of an IME, which was precluded by your refusal to attend on multiple occasions. Given this, I am of the view that I have no option other than to take disciplinary action against you…[1]

  1. [4]
    The allegation was set out as follows:

It is alleged that you have failed to follow a reasonable direction to attend an Independent Medical Examination (IME).

If accepted, this allegation could constitute grounds for discipline pursuant to section 187(1)(d) of the Act, in that you have contravened, without reasonable excuse, a direction given to you as a public service employee by a responsible person.

The allegation, if proven, could constitute grounds for discipline pursuant to the abovementioned subsection of the Act because you were directed, but failed, to attend two IMEs during the month of April 2019, which were scheduled to guide the department in supporting your ongoing employment.

  1. [5]
    In that letter, Ms Rimland was also asked to show cause with regard to a potential disciplinary penalty:

If a disciplinary finding is made in relation to the above allegation, section 188(1) of the [PS] Act provides examples of disciplinary action that the delegate may consider reasonable in the circumstances. I am currently giving serious consideration to:

  • termination of your employment.
  1. [6]
    Ms Rimland responded to the show cause letter:

I do not agree with the proposal to terminate my employment. In view of the fact that there continues to be no response to my concerns including no substantiation of any claims made about failed attempts to place me that are in any way linked to my behaviour or competence, such course of action is without grounds. Your staff seem to be remiss in their understanding of discrimination and employment law, let alone capacity to listen, investigate and make fair claims.

As you are aware there is now QIRC involvement (appeal in process), I suggest you wait until all evidence has been examined.  In the meantime, the unwarranted and unprofessional behaviour towards me, including false claims without evidence being examined (targeting of me in an unfair and hostile manner) will result in medical response as previously warned to Eric Harper. Therefore you may yet get your medical assessment but via more legal and valid means.

  1. [7]
    Following Ms Rimland's response to the show cause letter, the allegation was substantiated and the decision maker terminated Ms Rimland's employment on 21 June 2019.
  1. [8]
    Ms Rimland contends that the direction to attend the IME was unlawful and that it then follows that it was unfair for her to be dismissed for not following the direction to attend the IME.
  1. [9]
    The Respondent maintains that the Direction to attend the IME was valid and that Ms Rimland's refusal to attend the IME was a breach of the Code of Conduct and that the disciplinary action of termination of employment under s 188(1) of the PS Act  was not unfair.
  1. [10]
    In order to determine whether the termination was unfair, it is necessary to consider whether the direction to attend the IME was lawful.  This requires consideration of whether Ms Rimland was not performing her duties satisfactorily and whether it was reasonable for the chief executive to form a reasonable suspicion that the unsatisfactory performance was caused by mental or physical illness or disability.
  1. [11]
    For reasons which follow, I have determined that the direction to attend the IME was lawful and reasonable, and the subsequent termination of Ms Rimland's employment was not unfair, as it was not harsh, unjust or unreasonable.

Legislation and Directives

  1. [12]
    Section 320 of the Industrial Relations Act 2016 (IR Act) sets out the matters to be considered by the Commission in hearing an application under s 317.

320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider –

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  2. (b)
    whether the dismissal related to –
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance –
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  2. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [13]
    The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[2] The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.[3]
  1. [14]
    The relevant parts of the Public Service Act 2008 (PS Act) are:

174 Application of pt 7

This part applies to a public service employee if —

  1. (a)
    the employee is absent from duty or the employees'  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

  1. (a)
    appoint a doctor to examine the employee and give the achieve executive a written report on the examination; and
  1. (b)
    require the employee to submit to the medical examination.

…

187 Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or

…

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

• termination of employment

• reduction of classification level and a consequential change of duties

• transfer or redeployment to other public service employment

• forfeiture or deferment of a remuneration increment or increase

• reduction of remuneration level

• imposition of a monetary penalty

• if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments

• a reprimand

…

  1. [15]
    The relevant parts of the SEAWC Directive are:

7. Principles

7.1  The government's commitment to employment security, as a key component of fairness for employees, is set out in the Employment security policy. Consistent with the policy departments and employees are responsible for pursuing best value service delivery through performance improvement and skills development strategies in preference to downsizing, restructuring or outsourcing.

7.2  Notwithstanding clause 7.1, the government acknowledges that workplace change may occur that impacts on staffing requirements, including as a result of external (e.g. Federal) initiatives. Where such change occurs:

  1. (a)
    open and timely communication will underpin the actions of departments and employees

…

  1. (c)
    in accordance with this directive, affected permanent employees will be actively supported to find suitable alternative employment, including through effective case management (see clause 11)
  1. (c)
    in accordance with this directive, the employee organisation(s) affected permanent employees will actively participate in efforts to find suitable alternative employment
  1. (e)
    departments will notify the employee organisation(s) for affected employees of the change and workforce strategies. The timing of such notification must be reasonable having regard to the scale and context of staffing impacts.

9.  Actions following workplace change

9.1.  Where workplace change results in permanent employees being displaced from a substantive (ongoing) role, departments and affected employees must work cooperatively to transfer (or with the employee's consent, redeploy) the employee to  suitable alternative (ongoing) role.

…

10.  Registration process

…

10.3 When registering, an affected employee must:

  1. (a)
    nominate between one and three role categories in which they have the most skill and experience
  2. (b)
    attach a copy of their current resume, including details of at least one referee who can comment on their conduct and performance within the last 12 months

11.  Actions to support employment security

11.1 Departments and affected employees must work cooperatively in supporting employment security, s set out in the Employment security policy and this directive

…

11.4. An affected employee is responsible for participating in reasonable opportunities for retraining/development and transfer (and, if they have consented to it, redeployment). This includes, but is not limited to:

  1. (a)
    actively participating in the placement process
  1. (b)
    working with their case manager to identify and undertake appropriate(re)training/development opportunities
  1. (c)
    positively engaging in suitability assessments
  1. (d)
    identifying, and where appropriate, applying for vacancies outside the referral process
  1. (e)
    as appropriate, taking action in response to feedback from selection or referral processes

…

12. Referral of vacancies for service-wide priority transfers, redeployment and longer term secondment

…

12.4 Where a releasing department identifies a possible match, they must refer the relevant employee/s by submitting a short statement outlining the reason for possible suitability to the receiving department, along with the employee’s resume.

  1. (a)
    A full-time employee may only be referred for a part-time vacancy with their consent.
  1. (b)
    A part-time employee may be referred to a full-time vacancy. The employee may elect to maintain their current part-time percentage, or increase their part-time percentage or agree to a full-time role.

…

  1.  Suitability assessments

…

13.3.  Where an affected employee is assessed as suitable, a transfer or secondment (at level) direction, or a redeployment/secondment (to a lower level) offer is made, with date of effect specified.2 An affected employee’s agreement to a redeployment/secondment to a lower level should be recorded in writing.

  1. (a)
    The date of commencement of duty must be discussed between the employee and the receiving department, taking into account, as applicable, approved leave and/or a current placement. Where an employee is not on leave, or undertaking a placement (e.g. a secondment) a commencement date of two calendar weeks will generally be considered appropriate.
  1. (b)
    An affected employee may make a submission to the releasing department that the transfer or secondment (at level) direction is unreasonable. This submission should be made within five business days of notification of the transfer direction. If the submission is accepted, the transfer or secondment direction is withdrawn. If the submission is not accepted, the transfer or secondment direction stands.3
  1. (c)
    Notwithstanding clause 13.3(b), an affected employee may decline a transfer or secondment (at level) direction on one occasion only without having to demonstrate unreasonableness. In such cases, the employee remains on the register and eligible for further referrals.
  1. [16]
    The relevant parts of the now superseded Directive 1/18: Managing employee Health, Safety and wellbeing - Independent Medical Examinations (the IME Directive) are:

8. Statement of intent and expectation

8.1 The Queensland Government is committed to supporting public service employees who experience illness or injury to maintain their employment, including where appropriate, through the application of reasonable adjustment.

9. Decision to require an employee to submit to a medical examination

9.1 In some cases, early communication and management efforts may not be successful in addressing performance issues or current absences.

9.2 Where the conditions in section 174 are satisfied, section 175 of the PS Act provides that a chief executive may appoint a doctor to examine the employee and give the chief executive a written report on the examination. It also provides that a chief executive may require the employee to submit to the medical examination. Failure to comply may be grounds for discipline action.

9.3 The conditions in sections 174(a) and (b) of the PS Act must both be met before a chief executive may require the employee to submit to a medical examination. Firstly, section 174(a) requires that an employee is either absent from duty (which is a question of fact) OR the chief executive must have sufficient grounds, supported by evidence, to be reasonably satisfied the employee is not performing his or her duties satisfactorily. For the second part, 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.

9.4 The chief executive is to provide the employee with at least two weeks’ notice of a medical examination appointment unless the employee agrees to a shorter notice period. The direction to require an employee to submit to a medical examination must set out the basis and reasons for the direction under section 174.

Was the direction to attend the IME reasonable and lawful?

  1. [17]
    In order for the chief executive to require the employee to submit to a medical examination under s 175 of the PS Act, both sub-sections of s 174 must apply:
  • Section 174(a) requires that the employee is absent from duty or the chief executive must be reasonably satisfied the employee is not performing his or her duties satisfactorily. 
  • Section 174(b) requires that the chief executive reasonably suspects that the absence or unsatisfactory performance is caused by mental or physical illness or disability.

Section 174(b)

  1. [18]
    The Respondent refers to the decision in Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209, and submits Merrell DP considered the term 'reasonably suspects' and having consideration to two occasions where the term was considered in the context of the Migration Act 1958,[4] opined that the following considerations provide a sound guide to a person required to make a section under s 174(b):
  • for the suspicion of a chief executive (or his or her delegate) that a public service employee's absence is caused by metal or physical illness or disability to be reasonable, it must be justifiable upon objective examination of the 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 the 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 him or her at a particular time or what was reasonably capable of being known at that time.[5]
  1. [19]
    The Respondent submits that the direction to attend the IME was issued by a 'responsible person' in accordance with s 175 of the PS Act.  Ms Rimland was given the direction, or had the direction confirmed by the Deputy Director-General and the Director-General.[6]
  1. [20]
    It is the Respondent's contention that there is incontrovertible evidence that it was reasonable for the employer to consider that Ms Rimland suffered from a mental or physical illness or disability and that this mental illness or disability caused the conduct which is considered to be unsatisfactory performance.
  1. [21]
    The Respondent says that s 174(b) of the PS Act does not require a formal diagnosis.  The information which led the delegate to believe that Ms Rimland had a mental illness or disability consisted of a report from a social worker dated 5 July 2018,[7] and a letter from Ms Rimland's treating general practitioner dated 31 July 2018.[8]
  1. [22]
    Mr Harper, the decision-maker, was not cross-examined during the hearing.  His affidavit, tendered by consent, states that when referred to some psychology roles as part of the SEAWC process, Ms Rimland would cite that her health would be put at risk.[9]
  1. [23]
    The evidence demonstrates that Ms Rimland was asked on several occasions to provide a diagnosis to support her disclosure of a self-identified condition.  The evidence also demonstrates that Ms Rimland never provided a diagnosis as requested. 
  1. [24]
    For reasons which I will expand on later, I find that the existence of the Social Worker letter, the doctor's letter and Ms Rimland's own self-assessment regarding roles she thought she could not undertake due to her self-identified condition were evidence enough for the delegate to form a reasonable suspicion that she was experiencing a mental or physical illness or disability.

Section 174(a)

  1. [25]
    Ms Rimland says that the direction to attend the IME was not lawful as s174 (a) has not been satisfied as there is no evidence that she was absent nor underperforming. Ms Rimland's performance was not unsatisfactory and she had never had any performance issues raised with her during her employment and therefore the direction was not reasonable or lawful as it did not comply with s 174 of the PS Act.
  1. [26]
    The Respondent believe Ms Rimland's interpretation of s 174 of the PS Act and the Directive is too narrow and not supported by documentation or case law.  In response, the Respondent rely on cl 8.1 of the IME Directive which outlines the intent of the Directive being to support public service employees to maintain their employment using reasonable adjustment where required where ill or injured. 
  1. [27]
    Neither the PS Act nor the IME Directive define 'not performing…duties satisfactorily'.
  1. [28]
    With regard to s 174(a) of the PS Act, the Respondent says that 'performing satisfactorily' in this section is broader than 'underperformance' and goes far wider than a task-oriented assessment. The unsatisfactory performance was Ms Rimland's failure to properly engage and co-operate in the placement process as she was obliged to do as an employee affected by workplace change under the SEAWC Directive. Where Ms Rimland did engage with the process, she sought to apply limitations to role options without supporting evidence, not undertaking all of the duties of a position or failing to provide medical evidence when and of the nature requested.
  1. [29]
    Ms Rimland submits that she received intimidating emails suggesting she was not adequately participating in the SEAWC process and that in those emails she was unnecessarily asked to provide medical information[10] as a reasonable excuse to rule out a 'unilateral' referral.[11]
  1. [30]
    The Respondent submits that the purpose of s 174 and the IME Directive is undermined if a referral for an IME cannot be made in the circumstances of Ms Rimland.   The Respondent says:
  • All alternative avenues had been pursued to support Ms Rimland and to enable identification of deployment or redeployment options;
  • Ms Rimland's conduct/performance thwarted them all; and
  • Medical information was needed and Ms Rimland was not co-operating as she was required to do.
  1. [31]
    The Respondent says that the conduct outlined above was a measure of poor performance.  The letter directing Ms Rimland to attend the IME makes it clear that the purpose was to obtain medical information to enable reasonable adjustments to be made, if necessary.  The Respondent says that in the absence of this medical information which was sought, Ms Rimland who was at the time a SEAWC employee, could not meaningfully participate in the process. 
  1. [32]
    I accept that 'satisfactory performance of duties' for the purposes of s 174(a) goes beyond Ms Rimland's specific role requirements as a psychologist and encompasses the performance required of her as a participant in the SEAWC process.
  1. [33]
    Clause 11.4 of the superseded SEAWC Directive provides an inexhaustive list of the responsibilities of an affected employee. I find that these can be considered duties of an employee for the purposes of s 174(a) and that the Directive purposely provides the responsibilities to create a clear expectation of the employee participating in the process.  Ms Rimland was an affected employee, the Directive applies to affected employees and therefore the responsibilities listed at cl 11.4 applied to her. 
  1. [34]
    It was Ms Rimland's participation in the process that was the cause for determining that she was not satisfactorily performing her duties.  The determination regarding satisfactory performance of duties was made on the basis of Ms Rimland's participation in the SEAWC process.  Ms Rimland contends that the Respondent did not comply with the requirements of the SEAWC process.  In order to decide if it was reasonable for the delegate to determine that s 174(a) had been satisfied, it is necessary to consider the extensive evidence before the Commission regarding the SEAWC process.

The SEAWC Process

  1. [35]
    The Respondent relies on various parts of the SEAWC Directive as replicated at the beginning of these reasons for decision.
  1. [36]
    Mr Harper's affidavit states:

Part of Ms Rimland's duties as an employee generally and as an employee subject to SEAWC specifically was that she co-operate with the employer.  Ms Rimland was not doing this, she was rejecting roles without good reason, she was applying for roles and then withdrawing from those applications without good reason and when she was placed in another Department she refused to undertake some of the role requirements.[12]

  1. [37]
    The Respondent sets out the following information regarding the SEAWC process:
  • The employee affected by workplace change who is displaced is registered;
  • registration involves the employee providing the information set out in cl 10.3 of the SEAWC Directive;
  • the information does not restrict the roles that may be suitable for the employee but is used in assisting the employee to find a suitable alternative role;
  • as per 12.4 of the SEAWC Directive, when the employing Respondent identifies a possible match, they must refer the relevant employee;
  • there is no obligation on the employing Respondent to seek the permission of the employee to make a referral;
  • the work is mandatory, not optional nor discretionary in circumstances where the Respondent identifies a possible match;
  • where an employee is identified as suitable, under cl 13.3 an offer must be made to the employee;
  • employees may on one occasion, decline the offer without having to demonstrate unreasonableness; and
  • other than this one occasion, where an employee is made an offer, if they do not wish to accept it they must within five business days of notification of the transfer, make a submission to the releasing department, that the transfer is unreasonable.[13]
  1. [38]
    The Respondent says that it did not rigorously apply the obligation regarding declining of offers to Ms Rimland.  Mr Harper's evidence was that the Respondent took a lenient approach to Ms Rimland and did not seek to enforce the strict terms of the SEAWC Directive in terms of the scope for rejecting offered positions. Mr Harper said that the Respondent wanted to keep Ms Rimland in the process so that she could ultimately be found a role.[14]
  1. [39]
    The Respondent points to the definition of suitability in the SEAWC Directive and says that 'suitability' is not necessarily a 'like for like' situation. Suitability is an objective measure based on transferrable skills and acknowledges that there may be a need for additional training or retraining to enable the employee to apply those skills, abilities etc. to the new role.[15]
  1. [40]
    The Respondent says that Ms Rimland confirms that she:
  • Is a qualified psychologist;
  • was employed in this capacity;
  • holds general registration with the Australian Health Practitioner Regulation Agency (AHPRA); and
  • with appropriate training, management and supervision, it was reasonable to expect she could do all jobs which required a general registration psychology qualification.[16]
  1. [41]
    Given the above, the Respondent submit it was reasonable to identify roles which required a psychological qualification (generalist registration) even where some additional training and development may have been required.  The Respondent says that for example, Ms Rimland did not have counselling skills but that it is reasonable that a person who holds formal qualifications in psychology could master these skills with training and support.  Ms Rimland confirmed in cross-examination that this was a reasonable expectation.[17]
  1. [42]
    On 17 July 2018, Mr Harper wrote an email to Ms Rimland stating:

I understand that you are a psychologist and as such this would be part of your day to day role in most psychologist roles, therefore it is the expectation that you would participate in any reasonable suitability assessment for your profession within the Ipswich Region.

…

It is important to reinforce clearly that the SEAWC process is not an entitlement process and nor is it based on personal preference. Suitability assessments are premised on reasonable match given your skill profile and a capacity assessment against suitable jobs. This does not preclude you from looking for roles that you may wish to otherwise consider on a personal preference basis, or which may sit outside of your assessed suitability.[18]

The Oxley Service Centre Role

  1. [43]
    Ms Rimland was appointed to a position at the Oxley Service Centre in the Brisbane Region. The Respondent says that it was a temporary role but with potential to be extended, however there was no guarantee that Ms Rimland would be successful in obtaining the role on an ongoing basis.  
  1. [44]
    Ms Rimland explains she experienced difficulties in this role, including that she received no training and she felt she was not supported to maintain her secondment[19] which was considered positive for the development opportunities it offered her.[20]
  1. [45]
    Ms Rimland says that Brisbane Region undermined her efforts in the appointment by refusing to allow her to work to Award conditions.[21] Ms Rimland says that the failure of the Brisbane Region Human Resources Management to resolve this issue made it necessary for her to ask to be removed from that role which she did via email to Mr Harper on 25 May 2018.[22] The request was granted and Ms Rimland was returned to a generalist clinical team.
  1. [46]
    Ms Rimland says that as a result of this she lost an opportunity to develop skills for the few ongoing roles that would remain post-NDIS and her efforts to engage in acceptable activities under the SEAWC Directive were undermined.[23]
  1. [47]
    Following this, Ms Rimland was seconded to the National Disability Insurance Agency.

Ms Rimland's performance as an employee affected by workplace change leading to application of s 174(a) of the PS Act

  1. [48]
    The Respondent submits that the evidence of Mr Harper sets out clearly the sequence of events leading to his decision to make the referral under s 174 of the PS Act.  Further, the Respondent says that Ms Rimland makes reference to many of the same matters in her evidence, though with different emphasis.[24]
  1. [49]
    With regard to the SEAWC process and its application to Ms Rimland, the Respondent submits the following:
  • The aim of the process is to reasonably match employees to roles they can perform;
  • the matching process does not only equate to roles that Ms Rimland has a preference for;
  • the matching process does not exclude roles for which Ms Rimland would require additional training and development within her qualifications and capacity;
  • Ms Rimland's substantive position was as a psychologist;
  • Ms Rimland is a registered psychologist with general registration.
  • general registration means that Ms Rimland has not specialised in a recognised speciality such as organisational or clinical psychologist;
  • a general psychologist can normally work across a number of practice areas;
  • the fact that Ms Rimland had not worked in a particular area of practice within the scope of a general psychologist did not prohibit such roles from being considered, provided appropriate support and training could be provided;
  • Ms Rimland confirmed in cross-examination that she, as a registered general psychologist could, with appropriate training and support, do all jobs which required general psychologist registration.[25]
  1. [50]
    Ms Rimland says that she communicated her concern that the employer was not implementing the SEAWC process according the Directive on numerous occasions.  Ms Rimland points to communications to the employer where she said she was not receiving referral to roles matching her SEAWC registration papers and resume.[26]
  1. [51]
    Ms Rimland submits that her SEAWC registration papers also indicate that she was generous in agreeing to be deployed in regions much further away than her home region or residence, even to the point of moving to Toowoomba.[27]
  1. [52]
    The Respondent says that the SEAWC process is an alternative to redundancy and that Ms Rimland was not required to identify regions other than those where she had a genuine interest in seeking employment opportunities.
  1. [53]
    Ms Rimland says that her last SEAWC Case Management Review Report prepared by the Brisbane Region was hostile and did not conform to the requirements of the review as set out in the SEAWC Directive.  From July 2017 - March 2018, while still in the South-West Region, the Respondent referred Ms Rimland to two vacancies for possible deployment: Borallon Prison and Brisbane Youth Detention. Ms Rimland says that her reason for not accepting the Youth Detention referral was accepted but she was subsequently referred back to the Youth Detention role where she was asked to supply medical information to excuse her from the 'unilateral referral'.[28]  Ms Rimland says that even if she had secured the role via a suitability assessment, she still had the right under the SEAWC Directive to refuse that deployment.[29]
  1. [54]
    Ms Rimland says that she received multiple 'unilateral referrals' which is inconsistent with the SEAWC Directive.  Ms Rimland has a number of concerns with this process and raised them in her dispute with the Respondent:
  • Forcing receiving agencies to put together multi-person panels to interview a deployee without a skills or experience match was a self-defeating process;
  • Ms Rimland expected that some receiving agencies might simply increase the barriers to employing deployees; and
  • there was an impact on the morale of deployees who were rejected for roles, including roles for which they were over-qualified.[30]
  1. [55]
    The Respondent says that Ms Rimland's reference to 'unilateral referral' mispresents that requirement at cl 12.4 of the Directive by inferring that there is an obligation for mutuality in a referral that does not exist.

Brisbane Youth Detention Centre role

  1. [56]
    On 13 July 2018, Ms Rimland was referred by email to the position of Staff Welfare Officer with Brisbane Youth Detention Centre, Youth Justice Services, Service Delivery. The role only required general registration and therefore Ms Rimland was relevantly qualified.[31] 
  1. [57]
    The Respondent says that Ms Rimland was not co-operative with the referral.  On 17 July 2018, Mr Harper sent an email to Ms Rimland stating that he had a reasonable expectation that she will participate in suitability assessment for the position unless she can provide valid reasons with evidence as to why this would not be appropriate.[32]
  1. [58]
    In response, Ms Rimland sent an email to Mr Harper on 17 July 2018.  Ms Rimland was seeking advice as to whether she was required to provide an official response or document. Mr Harper responded to Ms Rimland:

Suzanne – it needs to be formally submitted as evidence to assess you (sic) claim to be excused from this particular suitability assessment on merit.…If it pertains to your ability to be matched through the suitability assessment in general (and not just in this instance) it needs to stipulate that and explain why.  In that scenario we will assess your reasons and then may seek further HR advice about the course of action. [33]

  1. [59]
    On 17 July 2018, Ms Rimland replied to Mr Harper's email.

Dear Eric

Attached is a recent letter to my GP that provides recent background to my wish to not be placed in a role where I respond to the needs of people recently traumatised through work incidents or DV.

I have travelled well professionally since departing Qld Health but event/s at Ipswich DS office while I worked very long hours for AHPRA conditions removal resulted in me experiencing very distressing responses to certain events.

Full blown trauma responses were experienced such that I required medication sleep (sic) and also anti-depressants. Mark Leslie was my DCP and I alerted him to my background that came up at Ipswich given the Ipswich events. He was aware of what I was going through and watched me closely for my work capacity. He advised me that it didn't interfere with my work in the area of assessment and intervention for disability clients. My trauma responses were very surprising for me and also very difficult.

The deployment process also parallels events in Qld Health where I was treated as a deployee upon being removed from the unit where the allegations arose. I cannot emphasis enough how distressing my last two years were in Qld Health and the re-emergence of similar responses during 2017.

Early 2018 I became very exhausted and required medical help (sleep and anti-depressants). I get shaky even dealing with this issue now. I am OK to meet to explain the depth of my responses to anything where I am expected to perform in the face of very threatening or distressing events.

I am Ok to have conversations such as our recent meeting with Michelle to entertain certain roles (e.g. child safety) because I can be reassured that my well-being can be protected eg. Mentor, training, support etc.

But dealing with in-the-moment or recent traumatised staff, as a counsellor I fell (sic) is something I cannot do. I am still getting intervention for dealing with my responses and I don't feel the Psych Board would endorse me working in such a role (staff wellbeing officer). I have professional obligation to raise the limits of my capacity to work in such an area.

I would rather work in an AO role than do work that triggers me for trauma.[34]

  1. [60]
    While Ms Rimland referred to the attached letter as being from her doctor, it was written by a social worker, Doug Bourke and was dated 5 July 2018.[35]
  1. [61]
    Mr Bourke's statement says that he is not qualified to diagnose Ms Rimland but states:
  • Ms Rimland was exhibiting symptoms consistent with other people he had worked with who were diagnosed with PTSD;
  • he would expect that if diagnosed, Ms Rimland would meet the diagnostic criteria for PTSD;
  • he recommended that a process be implemented to clarify if there was such a diagnosis; and
  • the suspected PTSD is asserted to be related to historical events.
  1. [62]
    Ms Rimland does not think that the Social Worker's report made it reasonable for her employer to be concerned about her mental health from a medical perspective.[36]
  1. [63]
    With regard to the Brisbane Youth Detention Centre role, Ms Rimland says:
  • She did not meet the merit-based requirements for the role and this was supported by feedback from a previous deployment suitability matching process;[37]
  • she agreed to the referral to the Youth Detention Centre role but was advised by her employer against this course of action;
  • that she was asked to provide unnecessary medical information to excuse her from a role that she could not perform without possessing the demonstrated experience;
  • assuming that training for the role, after her appointment, would enable her to do the job is false, as critical incidents at detention centres are not able to be predicted or avoided on the basis that she was not yet trained to deal with them; and
  • she would be left at risk for actions by AHPRA and she is subsequently aware, the Queensland Public Service for acting outside her area of competence.

The request for further medical evidence

  1. [64]
    Mr Harper determined that Ms Rimland would need to provide medical evidence as the report of the social worker was not sufficient to be relied upon.[38]  On 23 July 2018, Mr Harper sent an email to Ms Rimland stating:

I will need you to provide a diagnosis from your General Practitioner and/or treating specialist in order for me to cease to put you forward for roles according to your current skills and abilities (and which are consistent with your substantive role profile).

…this information is important to ensure that we are all very clear on your parameters for placement under the SEAWC process (which have an evidence basis).[39]

  1. [65]
    Mr Harper was specific about the things that Ms Rimland was going to be required to provide:
  1. A professional diagnoses (sic) and why the condition precludes you from working as a psychologist and or similar roles to what you had been employed for within DCDSS.
  1. Further information about suitable administrative roles that you would have the skills and abilities for, in order for us to assess your suitability for such roles.
  1. If you are unable to work as a fully registered professional Psychologist, I require the length of time that you would be unable to practice and the likelihood of you returning to practice as a registered Psychologist.

In short, we need evidence that clarifies why you are not suitable for role profiles that are consistent with your current DCDSS substantive position.

  1. [66]
    Ms Rimland did not provide the information requested in that email. Ms Rimland said that there is no requirement in the SEAWC Directive that medical evidence is required for evidence of a poor personal fit (or skills deficit).[40]
  1. [67]
    The Respondent says it is irrelevant that there is no such reference in the Directive as it is standard industrial practice that where a medical condition is asserted to prevent an employee from undertaking functions, tasks or roles, that medical evidence is to be provided.[41]

Medical Reason v Poor Personal Fit and the request for a doctor's diagnosis

  1. [68]
    The Respondent says that Ms Rimland preferred to characterise her reason for limiting the scope of the search for a new role as 'poor personal fit'  but that the Respondent saw Ms Rimland's asserting that she could not work with a particular type of client or in a certain environment because of past trauma and its ongoing impact on her medical health as a medical issue, not an issue of poor personal fit.[42]
  1. [69]
    The Respondent says that in identifying that irrespective of skills match, she was not able to personally respond to people in the acute phase of trauma,[43] Ms Rimland was clearly identifying a potential medical limitation, despite choosing to characterise it as an issue of 'personal fit'.
  1. [70]
    The Respondent submits that it is not possible to characterise Ms Rimland's inability to work with traumatised people because of her own personal mental health issues as a personal fit issue and that it was unquestionably a medical issue on which proper medical evidence was required.
  1. [71]
    At hearing, Ms Rimland maintained that it was not a medical issue as there was no diagnosis at the time.  Ms Rimland was relying on her own assessment of her capacity to work with and respond to traumatised people.[44]
  1. [72]
    Ms Rimland also noted that if there had been a riot before she had received training in counselling skills she would have been placed 'in a position of working outside my area of competence' as required by my ethical obligations to AHPRA.[45]
  1. [73]
    Ms Rimland's email to Mr Harper dated 23 July 2018 stated that she would not meet the suitability requirements for the detention job, like she did not meet the suitability requirements for the prison job (i.e. no counselling background).[46]
  1. [74]
    The Respondent says that the above is a further demonstration that Ms Rimland was failing to co-operate with the SEAWC process and that Ms Rimland was seeking remove herself from a potential match for reasons that are not valid.  The Respondent says that the assessment for the role in the adult prison is not a general exclusion from jobs involving counselling skills.  The assessment relevantly states:

Overall it was assessed that the level of training and skill development required by Ms Rimland would make her currently unsuitable to transfer into this position. Given the imminent increase in prisoner numbers, BTCC requires skilled psychologists who are able to undertake the role with limited training and support.[47]

  1. [75]
    Ms Rimland's email of 23 July 2018 states:

I respectfully again point out that I cannot be forced to be assessed against a job that I know I am not able to perform because I am sure efforts will be made to document that I 'refused' an offer.[48]

  1. [76]
    The Respondent says that there is no evidence that Ms Rimland was being 'forced' to be assessed and that she was being asked to provide evidence as to why she would not participate in a suitability assessment which met the requirements of the SEAWC Directive.  The requirement to undertake training and support with counselling skills did not make a role unsuitable. It was the assertion that Ms Rimland could not undertake a role because of her own inability to respond to people in the acute phase of trauma that caused the request for the medical information.
  1. [77]
    In response to Ms Rimland, Mr Harper wrote an email on 23 July 2018 stating:

You are pre-empting the process by not providing reasonable evidence to enable a matching assessment therefore, it is critical that you work with us to support your position and our capacity to match you to a role.

You are absolutely obliged and required to attend reasonable matching assessments, unless you can provide adequate evidence (and that is what we are asking for).

As per my previous email since you are advising that you have limitations on what you can be matched to it is both reasonable and appropriate for you to provide information so that we can than asses pre-matching and suitability given your circumstances. The whole objective is to place you in a suitable role.

It is a requirement for all SEWC [sic] registered staff to provide reasonable and compelling evidence as to why they cannot be matched to roles that would otherwise be deemed suitable to this extent await your evidence for consideration.[49]

  1. [78]
    Ms Rimland's response to this email said that she would 'do the assessment for Youth Detention and see what they say when I tell them my concerns'.[50]  Mr Harper responded:

Suzanne, I am not intimating that is the best thing to do. I am simply trying to make the point that you can greatly assist us (and yourself) by providing some concrete evidence which details what is or is not suitable in terms of role criteria in light of your condition. That way we will only match to appropriate roles.[51]

  1. [79]
    The Respondent says that it is important to note that by the time the email dated 23 July 2021 had been sent, Ms Rimland had provided the report from her social worker and had received the email from Mr Harper setting out clearly what medical information was required to be provided. 
  1. [80]
    At 2.33pm on 23 July 2018, Ms Rimland replied to Mr Harper to advise that her doctor was away but that she had an appointment for when the doctor returned.[52]  Ms Rimland later sent Mr Harper another email at 5.25pm.  In that email, Ms Rimland says: "You will not get any diagnostic information from my doctor, only comment about unsuitability for direct trauma related work".[53]
  1. [81]
    On 24 July 2018, Mr Harper sent an email to Ms Rimland clarifying the information required:

A doctor's letter is find (sic) as long as it is clear about the parameters of conditions under which you can or cannot work (ie specifically roles around trauma related service with some examples would be helpful).[54]

Other roles

  1. [82]
    In response to Ms Rimland's email of 17 July 2018 indicating that she would work in administrative stream roles rather than do work that triggers her for trauma, on 23 July 2018, Ms Ferguson provided Ms Rimland with information on an administrative position in the Department of Housing.  Ms Rimland declined this role in an email that said, "No, I do not agree to this referral".[55]
  1. [83]
    Ms Rimland was part of a selection exercise for a Victims of Crime position.  This was a closed merit process and Ms Rimland withdrew before the process was concluded. When the role was subsequently readvertised, the advertisement contained a warning that employees would be exposed to distressing information and Ms Rimland did not apply for the readvertised role.[56]

The doctor's letter provided by Ms Rimland on 7 August 2018

  1. [84]
    On 7 August 2018, Ms Rimland provided a letter from her doctor stating:

As per Ms Rimland's consent for this communication, I do not include any diagnostic particulars nor do I comment on Ms Rimland's professional qualifications as might be required for any given position. I aim to provide a framework within which a suitable role can be found that provides a safe, predictable and stable work environment that will not exacerbate Ms Rimland's medical condition.  To the best of my knowledge, Ms Rimland's medical condition does not impair her capability as a psychologist.

My advice assumes that employment security policies and Qld government directives supporting employees affected by workplace change are being followed. Ms Rimland greatly benefits from procedural predictability and transparency, special attentions to these details is of utmost importance.

I strongly recommend that Ms Rimland avoid roles that involve a high risk of exposure to conflict or hostility e.g. 'front line' child protection.  I recommend that Ms Rimland avoid a role that involves management or assessment of [acutely][57] traumatised clients e.g. traumatised staff of youth detention or prisons.  Ms Rimland is best placed to assess the impact of a given role on her health and responsiveness to clients. Ms Rimland would greatly benefit from a period of workplace stability, utilising her professional skills, ideally with accessible and supportive management and mentors.

I hope this has been of some assistance.[58]

  1. [85]
    Ms Rimland's email to Mr Harper attaching the doctor's letter stated the following:

Attached is the letter from my doctor.  She offered to make any changes or edit as I thought necessary. I accepted the letter as is, but then this morning added the word "acutely". By this I mean to add that I mean that I have worked with clients, eg teens in the child protection system who are likely to have some trauma in their background, however, my role was not to respond to their trauma… Therefore, my meaning of adding "acutely" is that I should not work as a trauma response practitioner where I am required to respond to the acute phase of trauma.

  1. [86]
    Under cross-examination, Ms Rimland stated at first that she did not recall saying to her doctor that the doctor should not provide diagnostic information in the letter.  When asked about the letter stating that the doctor was following Ms Rimland's instructions in not providing a diagnosis, Ms Rimland said it was the doctor who said to her that she did not need to provide a diagnosis. However, Ms Rimland maintained that the employer had no grounds to ask for a diagnosis and that the request was inappropriate.  She said that she 'did my best providing information that was not necessary, that wasn't actually legally required'.[59]
  1. [87]
    The Respondent says that it is clear that Ms Rimland specifically defied the requirement of Mr Harper in his email that Ms Rimland was to provide specific medical information including a diagnosis and that Ms Rimland had provided only limited consent to her doctor which prohibited the doctor from providing the information required by her employer.
  1. [88]
    Ms Rimland maintains that she believed her ability to respond to people in acute phase of trauma would be compromised but that she had never been diagnosed.[60] However, during cross-examination, Ms Rimland said that there had been a diagnosis by her doctor as part of an insurance process but that she had challenged the doctor about this and said that the diagnosis was wrong.[61]  It is unclear when that diagnosis was made.
  1. [89]
    Ms Rimland agreed that she had hand-altered the letter provided by her doctor 'because that reflected the conversations she and I were having'.[62]  When asked if it was appropriate to alter medical reports, Ms Rimland said that it was appropriate and that the change she made was later confirmed to be accurate and signed off by her doctor.[63]  Ms Rimland was asked whether before amending the letter herself, she went back and asked the doctor to amend it.  Ms Rimland said that there was no need for that and that she didn't want to limit her chances of redeployment.[64]
  1. [90]
    The Respondent says that the letter from the doctor does not provide detail or any guidance to the Department other than that Ms Rimland has "a condition".  The Respondent says that this is consistent with Ms Rimland seeking to maintain that there is a difference between a condition and a diagnosis and her prior assertion to Mr Harper that he would not receive any diagnostic information, despite being directed to provide this medical information.
  1. [91]
    Mr Harper's evidence was that the circumstances outlined in the email made the utility of the letter minimal at best.

The Department could not in good judgement rely on the medical letter Ms Rimland had provided as it was imprecise and provided little to no guidance to the Department in identifying suitable opportunities. Ms Rimland had been repeatedly requested to provide additional medial evidence to assist in the SEAWC process. Ms Rimland, despite these repeated requests did not do [so]. Ms Rimland has also made an addition to the medical letter and it was not clear if this was her view or if it was shared by her doctor.[65]

  1. [92]
    Ms Rimland has an update of the letter from her doctor dated 3 December 2019,[66] however the Respondent says that it has no evidence of ever receiving it. The letter is the same as the original letter of 31 July 2018 except that the word 'acute' has been added in.  The Respondent says that at the date of the letter, Ms Rimland had not worked in the Queensland Public Service for over five months.
  1. [93]
    The Respondent says that despite concern about the correspondence from the doctor,  Ms Rimland was informed that she would not be referred for roles that exposed her to 'the management or assessment of traumatised clients'. [67]   The Respondent says that this was the only exclusion provided to Ms Rimland in the SEAWC process.[68]

The National Injuries Insurance Agency role

  1. [94]
    The Respondent says that in August 2018, Ms Ferguson emailed Ms Rimland regarding an AO5 role with National Injuries Insurance Agency.  This role was considered to be a suitable match. Ms Rimland replied to Ms Ferguson and identified those areas of the role where she did not think that she had the current skills and would require training.[69]
  1. [95]
    Ms Ferguson responded to Ms Rimland and advised that she had assessed the role description against the role Ms Rimland had held before being displaced. Ms Ferguson also advised that she had verified her position with a Team Leader in Disability Services who agreed that the responsibilities of the two roles were a match but that Ms Ferguson would refer the matter to Mr Harper. The Respondent says it is important to note that in the email, Ms Ferguson explained what had already been explained by Mr Harper, and is in the Directive, being that a suitability assessment is to determine suitability for the role with training and support provided to undertake the role after a period of time.[70]
  1. [96]
    On 22 August 2018, Ms Rimland responded to Ms Ferguson by email.  The email stated:

I have not read any further about your views. In any event medical advice will be a no. Eric [Mr Harper] was advised no roles with inherent conflict/hostility.

  1. [97]
    The Respondent says that this correspondence demonstrates that Ms Rimland was again refusing to participate in the process or at the very least was setting in place barriers to participation on what the Respondent says was a spurious basis.
  1. [98]
    The Respondent says that the medical exemption provided to Ms Rimland did not extend to 'roles with inherent conflict/hostility' and that Ms Rimland was seeking to extend the medical limitation on roles which may be considered.
  1. [99]
    On 23 August 2018, Ms Ferguson wrote to Ms Rimland to advise her that Mr Harper considered the role to be a suitable match and that Ms Rimland was expected to participate in the suitability assessment.[71]
  1. [100]
    In reply, Ms Rimland's email stated:

Being forced to attend assessments for jobs totally inappropriate is hostility and conflict, something that my doctor has documented as contrary to my well being. Eric is fully aware of this documented advice.

I have spoken with AO5 Service Access officers who have stated that the position was referred to all of them, that some are expressing interest, and that the role for me is totally inappropriate. As you see, the role is not a match. I do not agree that this is a job match. Please send appropriate referrals for me to consider. I will not work with you anymore. Please arrange another case manager.[72]

  1. [101]
    With regard to the above, the Respondent says:
  • The only exclusion which had been agreed was that Ms Rimland would not be referred for roles that exposed her to 'the management or assessment of traumatised clients';
  • there was no agreement that Ms Rimland would not be referred for roles which may include an element of hostility or conflict;
  • Ms Rimland is a psychologist, it is almost inconceivable that such a professional role would not at times be exposed to hostility or conflict;
  • the content of the email of 23 August 2018 is inappropriate in that it is rude and hostile to Ms Ferguson; and
  • this is an escalation of Ms Rimland's failure to co-operate with the SEAWC process which is an obligation of her employment.
  1. [102]
    On 24 August 2018, Ms Rimland wrote to Mr Walker, Manager, NDIS Workforce Transition.[73]  In that email, Ms Rimland stated that Ms Ferguson had been 'hostile and disrespectful, not working collaboratively with me'.  Mr Walker responded to this email on that same day.  In the email, Mr Walker denied the accuracy of the content of Ms Rimland's email and makes reference to two referrals made to Ms Rimland by Ms Ferguson and reminded Ms Rimland of her obligation to participate in the suitability assessment process.

The ongoing suitability assessment process

  1. [103]
    The Respondent sets out a number of examples it says demonstrates the escalating difficulty resulting from Ms Rimland's engagement in and co-operation with the suitability assessment process over time.
  1. [104]
    Ms Ferguson did not refer Ms Rimland for a vacancy for a Case Manager Courts Referral due to advice that this was not a suitable role due to the risk of being exposed to trauma. Ms Rimland was advised of the decision and then contacted the agency directly and asked to be referred for the role. Ms Rimland was referred for the role as requested but was subsequently deemed to be unsuitable.[74]
  1. [105]
    On 24 August 2018, Ms Rimland asked to be referred to a role in Queensland Health. When asked about not being referred to Queensland Health (as per a previous agreement following Ms Rimland's request not to be referred to Queensland Health), Ms Rimland withdrew her request.[75]
  1. [106]
    With regard to roles in Queensland Health, the Respondent says that under cross-examination Ms Rimland admitted to providing inconsistent information about her willingness to look at roles in Queensland Health.  Ms Rimland was asked about her inconsistent attitude to opportunities with Queensland Health to which she answered 'it was probably dependent on how I was coping at the time...[76] The Respondent says is further evidence that Ms Rimland's conduct at the relevant time was such that it was reasonable for the delegate to believe that there may be a mental illness causing Ms Rimland to be less than co-operative with the process.
  1. [107]
    In response to the Respondent's submissions regarding Queensland Health and the cross-examination of Ms Rimland on these matters, Ms Rimland says:
  • Until September 2017, prior to the closure of the South-West Disability Service, Ms Rimland had been advised by her South-West Clinical Supervisor to focus on completing her AHPRA registration requirements before focussing on SEAWC opportunities;
  • the same supervisor had also advised Ms Rimland not to return to Queensland Health but she was uncertain of this as she was receiving conflicting advice from another supervisor;
  • the employer's own consultant advised her in 2018 to pursue Queensland Health (child mental health); and
  • in any event the employer agreed that she would not be referred to Queensland Health.
  1. [108]
    On 31 August 2018, Ms Rimland requested to be referred to a PO3, Child Safety Role at Browns Plains.  The Respondent says that this was in direct contradiction to the letter Ms Rimland had provided from her general practitioner which specifically sought to exclude roles in front line Child Safety.[77]
  1. [109]
    On 17 September 2018, following the request on 24 August 2018 to be referred for a role in Queensland Health, Ms Rimland was sent a role at the Children's and Youth Mental Health (CYMHS).  Ms Rimland's response was 'No one has changed the situation/understanding that I not be referred to Queensland Health'.[78]  The Respondent says that adding further confusion to Ms Rimland's conduct, on 16 April 2018, Ms Rimland emailed to say that she had decided to attempt placement in CYMHS.[79]
  1. [110]
    Ms Rimland says that the emails she sent communicating with her South-West SEAWC Case Manager on the potential of referrals to Queensland Health were sent 'much earlier'.[80]
  1. [111]
    Ms Rimland says that that email demonstrates that she had commenced training in a contemporary counselling framework given feedback from Borallon Prison about her lack of contemporary counselling skills.  Ms Rimland says that the training was paid for her and not the employer and is another example of her efforts to fully participate in the SEAWC process.[81]
  1. [112]
    With regard to a suitability assessment for a PO3 Court Link position which had been identified as a potential role for Ms Rimland, the Respondent says:
  • Ms Rimland was assessed as not suitable for the position;
  • in the assessment report the panel mentions more than once that Ms Rimland had advised that she had a medical certificate from her doctor indicating that she should not be in roles where she would be exposed to 'inherent conflict';
  • the panel expressed concern that Ms Rimland did not display the capacity to navigate the complex presenting issues and respond with confidence to the challenging presentation styles of criminal justice clients;
  • Ms Rimland did not have an exemption in relation to roles with 'inherent conflict'.
  1. [113]
    Ms Rimland's affidavit for this matter states: "When I accepted the referral to a PO3 Court Link Position I made no assertions during the suitability assessment that I had a medical condition that would excuse me from the role".[82]
  1. [114]
    The Respondent says that the evidence demonstrates that Ms Rimland had told the panel that she had a medical certificate saying that she should not be in roles where she would be exposed to 'inherent conflict' but also told the panel that she 'did not think the role would present a concern to her/her doctor'.  The Respondent says that the criminal justice system is an environment in which conflict would be expected and that the practical effect of providing the information to the panel would be to raise concerns about Ms Rimland's medical suitability for the role.[83]
  1. [115]
    On 24 October 2018, Ms Rimland confirmed she was willing to be considered for the role of Service Officer (Transition and Post Care Support).  The Respondent says that the role is with the Department of Child Safety at the South Brisbane Office. When Ms Rimland was told of the change of location and asked if she would still like to be considered for the role, her response was 'yes that is fine…Thank you'.[84]  However, under cross-examination, Ms Rimland referred to the transfer as '…unilaterally transferred to that - against the SEAWC process…'.[85]  The Respondent says that this cannot be correct given Ms Rimland had agreed to be considered for the role.
  1. [116]
    On 19 November 2018, Ms Rimland was transferred to the above role with the Department of Child Safety.[86] Mr Harper's statement explains that it is his understanding that Ms Rimland refused to undertake some of the functions allocated to her at Child Safety and that she subsequently provided them the letter from her doctor stating why she should not undertake those functions.[87]
  1. [117]
    In a letter dated 18 December 2018, the Department of Child Safety advised Ms Rimland,

I am aware that subsequent to your transfer to DCSYW there have been various discussions regarding your employment and on 10 December 2018, you provided a medical certificate dated 31 July 2018 from Dr Bianca Pettigrew, …Which provided limitations on the type of work that you can safely undertake. After full and careful consideration, it is apparent that the role falls within the scope of the medical exclusions and therefore it is not a suitable role for you, as per the definition in Directive 17/16.[88]

  1. [118]
    On 19 December 2018, Mr Harper wrote to Ms Rimland to confirm that she would be transferred back to the department effective 7 January 2019 and that she would remain on special leave until that time.[89]
  1. [119]
    Mr Harper says that it was at this point that he decided more medical information was required.

Actions following Ms Rimland's return to her initial Department and the direction to attend the IME

  1. [120]
    Mr Harper advised Ms Rimland that on her return she would remain a SEAWC, but that until such time as issues regarding her fitness for work were resolved, she would not participate in the SEAWC process.[90]
  1. [121]
    Ms Rimland says that being withdrawn from the SEAWC process had an adverse effect in that she was no longer able to view the list of vacancies quarantined for deployees and she was not receiving any referrals that her clinician colleagues were receiving.[91]
  1. [122]
    The Respondent maintains that the action of withdrawing Ms Rimland from the SEAWC process pending medical advice was a reasonable and necessary action on the part of the Respondent to protect the health and wellbeing of Ms Rimland and others.[92]
  1. [123]
    Ms Rimland refers to another deployee that she believes to be working in a meaningful, funded role with the Respondent and that any suggestion that her time was up is false as there are no time limits associated with the SEAWC process.[93]
  1. [124]
    In response, the Respondent says that the circumstances of an unnamed south west deployee are irrelevant and that there is no suggestion that Ms Rimland's 'time was up'.  The Respondent says that the evidence clearly and consistently supports that Ms Rimland was not co-operating in the SEAWC process and that she was referred to the IME process to obtain necessary medical information.   The Respondent says that the removal from the SEAWC process was only until the IME information was available to inform the process and that it cannot be known what would have occurred once Ms Rimland was returned to the SEAWC process following the IME as Ms Rimland refused to attend the IME.
  1. [125]
    Mr Allan Holtz, a consultant from Workplace Edge was engaged to assist in determining the appropriate way forward in the management of Ms Rimland. On 14 February 2019, Ms Cummings, Acting Regional Director advised Ms Rimland of the process to be followed for the IME.  The process involved a meeting with Mr Holtz prior to him preparing a brief for the doctor who would be conducting the IME. The email encouraged Ms Rimland to take part in the process. Ms Rimland responded to this email by inserting comments replying to different parts of the email.  Ms Rimland's responses indicated that on the contrary to Ms Cummings' understanding, she had never agreed to participate in an IME under the PS Act. In the final part of the letter, Ms Cummings said 'I encourage you to engage with this process.  You may wish to have a support person present with you during the discussion with Allan Holtz'. Ms Rimland's inserted response to that was: 'There will be no meeting – let's try a more appropriate approach'.[94]
  1. [126]
    Ms Rimland says that she was co-operating with the Respondent until she became aware that the medical information required by the Respondent would be obtained through an IME under s 175 of the PS Act.[95]
  1. [127]
    The Respondent says that there is no evidence of Ms Rimland co-operating with the Respondent regarding the provision of medical information.  The Respondent acknowledges that Ms Rimland may have been initially confused as to the mechanism to be used to obtain information regarding her fitness for work, however, there is no evidence that Ms Rimland had agreed at any time to provide any additional medical evidence to the Respondent and that if such evidence existed, Ms Rimland would have provided it in these proceedings.
  1. [128]
    During cross-examination, Ms Rimland said that she was never going to participate in the IME process.[96]  Ms Rimland's statement says that she had previously been ill health retired from Queensland Health and that her Clinical Director had repeatedly advised her not to return to Queensland Health.[97]
  1. [129]
    Ms Rimland believed the IME process had been misused against her in the past. The Respondent says that while this may explain why Ms Rimland refused to participate in the process, it does not excuse it.[98]
  1. [130]
    On 15 February 2019, Ms Cummings sent an email to Ms Rimland regarding the consultant process in preparation for the IME and to confirm her understanding of the information provided by Ms Rimland. Ms Cumming said:

From your comments I am of the understanding that you do not choose to participate in a conversation with the organisational consultant we have engaged to develop the brief for the independent doctor.  I will let Alan know he can complete his brief without your input, if you change your mind please let me know.

To which Ms Rimland responded: 'There will be no independent medical assessment'.[99]

  1. [131]
    Following this, on 8 March 2019, Ms Cummings invited Ms Rimland to attend a meeting on 12 March for the purpose of discussing her fitness for work and the next steps in relation to Ms Rimland's suitability for participation in the placement process.  Ms Rimland was requested to bring a support person. Ms Rimland replied and provided her own matters to be discussed at that meeting. These matters included her position that the purpose of the meeting was not about fitness for duty or suitability for participation in the placement process but was about the Respondent's implementation of the SEAWC policy and why the Respondent were not 'sensitive to the information already provided by health professionals'.[100]
  1. [132]
    The meeting on 12 March 2019 did not take place.  A meeting was held on 29 March 2019 where Ms Rimland was formally provided with a letter referring her to an IME.[101]  The date provided for the assessment in that letter was incorrect and Ms Rimland was issued with an apology and by email dated 9 April 2019 advising that a new letter would be provided.  Ms Rimland's response to this email was 'Can you also inform them that a new date is unnecessary as I will not be attending.'[102]
  1. [133]
    On 16 April 2018, Ms Rimland was provided with a new direction to attend an IME.[103] Following this, Ms Rimland raised concerns regarding the SEAWC process and the referral to an IME.[104]
  1. [134]
    On 26 April 2019, the Respondent provided Ms Rimland with a response to her concerns. This email also reminded Ms Rimland that she had been issued with a direction to attend the IME and that if she did not comply, the department delegate will need to consider further options which may include disciplinary action.[105]
  1. [135]
    On 30 April 2019, the Director-General wrote to Ms Rimland and confirmed the requirement for her to attend the IME and that if she did not attend, disciplinary action may be taken.[106]
  1. [136]
    Ms Rimland did not attend the IME as directed.  There is no dispute that Ms Rimland did not attend the IME.[107]
  1. [137]
    Ms Rimland was of the opinion that the process up until this point was for the purposes of redeploying her, this opinion was derived firstly from her belief that there is no evidence that any health condition has impacted her performance; and secondly, Mr Harper's language surrounding the IME information being used to find suitable roles and her 'next steps for work placement'.
  1. [138]
    Ms Rimland says that the IME Directive requires 'early communication'  and the meeting she was asked to attend was to 'discuss next steps for work placement and associated matters' and that she had requested an Occupational Health and Safety document be part of the discussion.  Ms Rimland says that at the meeting, she was subjected to a mainly one-way conversation from Mr Harper and was handed the IME referral letter simply stating the reason as being to 'assist with the management of the health issues impacting on your employment in your substantive position of Clinician'.[108]  Ms Rimland says that this is not the open and transparent discussion required by the IME Directive.  Ms Rimland says that the allegations sent to the medical assessor were not available to her at any time.
  1. [139]
    Ms Rimland says that sufficient grounds, supported by evidence are required for determination that she was not performing her duties satisfactorily and that mutual sharing of information is expected to occur.  Ms Rimland says that these requirements have not been met.  Ms Rimland says that she repeatedly asked for the performance deficit information be made available to her and that nothing was provided.
  1. [140]
    Ms Rimland says that the Acting Director-General advised that she was not allowed to see the information about her that was being sent to the medical assessor.
  1. [141]
    During cross-examination, Mr Findlay, Director of Human Resources Strategies, Services and Assistance talked about why the evidence sent to the consulting psychiatrist had not been shared with Ms Rimland at the time.  Mr Findlay said that the approach taken was consistent with his experience over many years and that there can be concerns that provision of the information may interfere with the IME process and that there can also be concerns for the employee.[109]  Mr Findlay also said that the IME assessment was just one part of the process and that Ms Rimland would be provided with all of the documents and given an opportunity to provide a response before a decision was made.[110] and natural justice would be provided as part of the process.[111]
  1. [142]
    Ms Rimland says that she made a Public Service Appeal against the IME direction and that the appeal was prevented when her employer terminated her employment.

Consideration re: s 174 of the PS Act – was the direction to attend the IME fair and reasonable?

  1. [143]
    Given that the unsatisfactory performance relied upon by the Respondent was with regard to Ms Rimland's participation in the SEAWC process and Ms Rimland claims it was the Respondent's implementation of the SEAWC process that was problematic, rather than her participation in it, I found it necessary to set out the evidence before me regarding the process from paragraphs [35] to [142].  Following the process as described by each of the parties, I am left with the impression that both parties found the process frustrating. However, I am satisfied that it was Ms Rimland's failure to satisfactorily participate in the process that caused the Respondent to temporarily withdraw her from the process pending the receipt of independent medical advice.
  1. [144]
    Ms Rimland's demeanour as a witness indicated to me a level of defiance with regard to the roles identified for her and the expectations of her as an employee affected by workplace change. Ms Rimland appeared to believe she was entitled to direct the process herself and to not participate unless the proposed role was one she herself had identified or that met her expectation as to a preferred fit. It was clear to me from her evidence that Ms Rimland was participating in the SEAWC process on her own terms and this included her persistent refusal to acknowledge that the vague advice provided in the letters from her social worker and her doctor was not sufficient to support the identification of appropriate placements for her. Where Ms Rimland suggested there were medical issues that prevented her from being deployed to certain roles, it was only reasonable that the Respondent be provided that medical information in order to continue with the process.
  1. [145]
    While Ms Rimland is correct to point out that the SEAWC Directive does not refer to the provision of medical evidence, it was she who identified that she was suffering from an ill-defined and undiagnosed condition that was impacting on her capacity to participate in the placement process and engage in suitability assessments.
  1. [146]
    While there were occasions when Ms Rimland did not participate as required or requested on the basis of a self-assessment of her skills and experience, there were a number of occasions when the reason given was exposure to patients experiencing trauma and then later, exposure to conflict.  In these cases, the issue was about whether there was a psychological condition preventing Ms Rimland from undertaking a role, not a matter of her possessing the skills to undertake the role.
  1. [147]
    Ms Rimland maintained that she did not have a diagnosis, however, a diagnosis was not necessary. I find that the social worker's letter, the doctor's letter and Ms Rimland's self-assessment that she was suffering from a condition or that exposure to conflict or people experiencing trauma could cause her harm, were compelling reasons to for the delegate to form a reasonable suspicion that she was experiencing a mental or physical illness or disability and to determine to make a direction under s 175 of the PS Act.
  1. [148]
    As has been previously discussed, I find that the expectations set out in the SEAWC Directive were duties required of Ms Rimland as an affected employee.  I further find that the extensive evidence regarding the SEAWC process demonstrates that Ms Rimland was not satisfactorily performing those duties and it was reasonable for the delegate the delegate to have concluded the same.
  1. [149]
    Having determined that s 174(a) and (b) of the PS Act had been met, it was reasonable and lawful for the delegate to determine that Ms Rimland should be referred for the IME.
  1. [150]
    Ms Rimland says that the IME Directive has not been followed and that there was meant to be further consultation with her.  The problem I have with this submission is that it is clear that Ms Rimland was requested to provide a diagnosis from her doctor on multiple occasions and she refused to do so.  Ms Rimland was asked to meet with the consultant who had been engaged to work with Ms Rimland on the process of determining what steps to take following her withdrawal from the SEAWC process on the basis of concerns for her health.  Ms Rimland made a decision to not participate in the process.
  1. [151]
    In the absence of Ms Rimland voluntarily providing what I would consider essentially follow up medical information or diagnosis to refine the advice she was relying on to deem herself unable to undertake roles which had been identified as a match for her, it is unclear what other option was available to the employer.
  1. [152]
    Ms Rimland is an employee of the public service whose job had been impacted by workplace change.  It was not tenable for her to continue to participate in the SEAWC process when she was not able to be placed in a position where she could undertake her role as a psychologist either with or without additional training. To that end, it was necessary for the Respondent to find out what, if any, medical condition Ms Rimland was experiencing and to be able to use this information to place her in an appropriate role.
  1. [153]
    I have no reason to believe, based on the evidence before me, that the purpose of the IME was for any reason other than to support Ms Rimland's continued participation in the SEAWC process.  It was simply unacceptable for the Respondent to continue attempting to place Ms Rimland in alternative roles when she was self-identifying that these roles would or could place her at risk.
  1. [154]
    Ms Rimland provided reasons for her refusal to attend the IME and the delegate determined that these were not a reasonable basis for her refusal. Ms Rimland agrees that she was directed to attend the IME and says that when she realised it was an IME under Part 7 of the Act, she stopped co-operating.[112]
  1. [155]
    The matter escalated and in the end, it was the Director-General directing Ms Rimland to attend the IME. 
  1. [156]
    I note Ms Rimland's submission that she believes the information brief sent to the employer's medical specialist contained false statements.[113]  As Ms Rimland never attended the IME, the doctor did not take the information brief into account in any assessment of Ms Rimland. Ms Rimland did not have the brief at the time she made the decision that she would not attend the IME. 
  1. [157]
    I have considered the IME briefing note and the attached file notes and other information to the extent that it has been put before me in evidence.  However, given the IME never took place, I do not intend to address the material further than to note that it is in evidence.

The Show Cause Disciplinary Process

  1. [158]
    On 7 May 2019, Mr Hayes wrote to Ms Rimland giving her an opportunity to show cause why disciplinary action should not be taken. Ms Rimland was also given the opportunity to show cause on the proposed penalty of termination of employment.[114]  The explanation given to Ms Rimland for initiating the show cause process is set out in part at paragraph [3] above. 
  1. [159]
    Ms Rimland says that the employer made no investigation and instead sent one show cause notice in which it determined that the grounds for discipline had been met.   Ms Rimland says that the discipline guidelines state that only when factual evidence is available, such as through criminal proceedings etc. that the two notices can be combined.
  1. [160]
    It is important to note that Ms Rimland did not call Mr Harper for cross-examination and that his evidence was tendered by consent.  Mr Findlay was called for cross-examination and it was established at the hearing that he could comment generally about show cause disciplinary processes given his knowledge and experience but that he would not be able to speak directly to the decision making process regarding Ms Rimland.
  1. [161]
    At the hearing, Ms Rimland questioned Mr Findlay about why the two show cause processes (disciplinary finding and proposed penalty) had been undertaken simultaneously.  Mr Findlay explained the show cause disciplinary process generally based on his knowledge and experience:

---and in this case, Mr Hayes would have determined that, you know, that there was clear evidence through multiple delegates, that, and multiple occasions, that, you know, you were asked or directed to attend IME as a lawful direction, without – and you know, you had an opportunity to provide a reasonable excuse, and in the eyes of Mr Hayes, you weren't able to do that. So it was a fairly – I guess, it's a fairly simplified process in terms of why it was combined, because there – there was not much more, and Mr Hayes felt he had everything that he required, and he gave you an opportunity, one last time, to provide a response that might alter his thinking around the possibility of being liable to discipline and the penalty of termination.[115]

  1. [162]
    Ms Rimland said that she had raised a dispute about the way the SEAWC process was being implemented and that the employer didn't engage with the required process and steps of the dispute resolution process.  Ms Rimland says she was never contacted to provide her input into any dispute resolution process and she was never shown any documents or appraised of any performance issues. Ms Rimland says that the employer's failure to engage in the SEAWC processes has not been examined.[116]
  1. [163]
    There are a series of communications Ms Rimland points to as being a part of her escalating a dispute regarding the SEAWC implementation and the IME.  These include raising the matter first with Mr Walker, Mr Harper and her Case Manager.  Ms Rimland then wrote to the Deputy Director General and finally the Acting Director General.
  1. [164]
    Ms Rimland asked Mr Findlay about this matter during cross-examination.  Mr Findlay explained that he was not the delegate but that he was aware of Ms Rimland's matter.  Mr Findlay agreed that Ms Rimland had provided a lot of information about the SEAWC process and that he was aware Ms Holme,[117] had provided a response to Ms Rimland and that Ms O'Connor, the Director-General also responded.  Ms Rimland put it to Mr Findlay that the grievance process set out in the Award required the decision maker to 'consult with the relevant parties' and that this meant that he needed to consult with her.  Mr Findlay replied that as Ms Rimland had sent through material, the delegate may have felt that he had consulted with Ms Rimland and received her information.[118]
  1. [165]
    Ms Rimland put it to Mr Findlay that at the third stage of the dispute, the Acting Director General was provided advice that was then provided to Ms Rimland in a letter.  Ms Rimland said that this does not reflect consultation, co-operation or discussion as referred to by section A of cl 7.2 of the Award and that the Award states that it may be necessary to appoint someone to investigate matters. Mr Findlay replied:

[Mr Findlay]  I'll answer it - - -

[Ms Rimland]  Yes?--- - - -

[Mr Findlay]  best I can, Ms Rimland. There was a lot of information, a lot of material throughout your concerns about being exempt for an independent [indistinct] examination. You submitted a lot of material along the way. The Director-General and the Acting Director-General and Mr Hayes considered that they had sufficient information based on all of that to, you know, make that decision and respond to you. We certainly do not engage investigators, only where we felt that there was an absolute need to do that and that – it doesn't always happen that there's an investigator because it's not needed in many cases where there's sufficient information available for someone to make – make a decision based on what – what is available.  So in this case, three independent people, and I'll – and if I include Mr – Mr Harper, there's four people who – and Eric Harper, I'm sure, actually did talk to you along the way. So there would've been some discussion, I'd be pretty confident of that. There was an exchange of emails, there was, you know, your opportunity to provide material to different delegates who each looked at what was there and made – made the decision that they made…[119]

  1. [166]
    The Respondent points to the evidence of Mr Findlay that each stage of the process was met by the Respondent and that the relevant parties are not required to meet with a party if they have sufficient cogent and reliable information to make a decision at each relevant stage.
  1. [167]
    Ms Rimland referred to her show cause response (which is set out above at [6]) and asked Mr Findlay if he agreed that in that response, Ms Rimland had said that she had lodged an appeal with the Commission and that the matter should be able to run its course.  Mr Findlay agreed that Ms Rimland's response had said that but said that from what he recalled, it was a public service appeal and that there was no stay order in place to prevent action from continuing.[120]
  1. [168]
    The Respondent says that Mr Findlay's evidence directly addressed the dispute resolution procedure.  Mr Findlay stated that in his view the Award had been complied with and that it is not necessary to hold discussions where the facts of a matter are known, as was the situation with Ms Rimland's complaint.  The Respondent denies any failure to engage in the SEAWC process.[121]
  1. [169]
    Ms Rimland confirmed that she had been given and had taken the opportunity to respond to both the finding and the proposed penalty.[122]  Ms Rimland responded to the show cause notice on 22 May 2019.[123]
  1. [170]
    The Respondent says that although Ms Rimland's response is short, it clearly addresses both her failure to attend the IME and also the proposed penalty.
  1. [171]
    On 21 June 2019, Ms Rimland was provided with a letter terminating her employment due to her failure to follow a reasonable direction to attend the IME.[124]
  1. [172]
    Ms Rimland says that it was only after her dismissal that she became aware that the employer was suggesting that she could not be placed as a deployee and that she was not participating in the deployment process.  Ms Rimland says that the evidence shows that this is false.[125]  The Respondent says that it has at no time suggested that Ms Rimland could 'not be placed as a deployee'. The Respondent says it sought to work with Ms Rimland to identify opportunities and when this failed due to Ms Rimland seeking to apply restrictions to the process without medical evidence, she was referred to an IME to obtain the necessary medical evidence.[126]
  1. [173]
    The Respondent says that Ms Rimland was spoken to and written to on multiple occasions regarding her obligations under the SEAWC and that she was not considered to be meeting these obligations. Further to this, the Respondent says that it is unclear what more it could do to demonstrate concerns regarding a health issue other than to request on a number of occasions that medical information be provided.
  1. [174]
    Ms Rimland says that choosing termination in the context of her right to appeal and the unresolved dispute of the IME referral is harsh and unjust. 

Consideration – show cause process

  1. [175]
    At the outset, I note that while Ms Rimland raised concerns about the two parts of the show cause process – that being an opportunity to respond to the allegation or disciplinary finding and the opportunity to respond to the proposed disciplinary action of termination were merged or truncated into the one show cause process. There is nothing precluding the two parts of the show cause process occurring.
  1. [176]
    In these circumstances, there was one allegation against Ms Rimland. That allegation was that Ms Rimland had failed, without reasonable cause, to follow the Direction to attend the IME. Ms Rimland was advised on two occasions (26th and 30th April) that failure to follow the direction could lead to disciplinary action.  It was not in dispute that Ms Rimland had not attended the IME.  In fact, she indicated on a number of occasions that she was not going to attend the IME and would not attend an IME.  In the circumstances, I do not see that there was cause for there to be an investigation into whether Ms Rimland had attended the IME.  It is clear that she did not.
  1. [177]
    The show cause process gave Ms Rimland the opportunity to provide reasons why it was reasonable for her to refuse to attend the IME and why, if it was found that she had no reasonable excuse, she should not be terminated.  Ms Rimland provided a response.
  1. [178]
    There is nothing before me to suggest that Ms Rimland was not afforded an opportunity to respond to the allegation or that the show cause process was not conducted properly.
  1. [179]
    While Ms Rimland submits that there was never a proper consideration of her issue or grievance, I find that her issue was considered by various people who determined that the process was being implemented reasonably and that an IME was necessary.  While Ms Rimland did not agree with the outcome provided in response to her concerns, it is not correct to say that her matter wasn't properly considered.
  1. [180]
    The delegate was Mr Eric Harper.  His evidence was tendered by consent.  I have considered both his evidence and Ms Rimland's responses to his evidence.

Section 320 of the IR Act.

Informed of reason for dismissal: s 320a

  1. [181]
    Ms Rimland was notified of the reason for her dismissal in the letter of termination.[127]

Employee's conduct, capacity and performance: s 320(b)(ii)

  1. [182]
    The termination of Ms Rimland's employment related to her 'conduct, capacity or performance'.  The disciplinary process followed Ms Rimland's failure to follow a lawful and reasonable direction to attend the IME.  The direction was lawful and reasonable following the delegate determining that s 174(a) and (b) had been met. The delegate determined that Ms Rimland had breached s 187(1)(d) of the PS Act in that she contravened without reasonable excuse, a direction given to the employee as a public service employee by a responsible person.

Was the employee warned about the conduct?: s 320(c)(i)

  1. [183]
    It is not disputed that Ms Rimland had been warned as to the consequences of refusing to comply with the direction to attend the IME.  On both 26 April 2019 and 30 April 2019 Ms Rimland was informed 'if you do not attend, the departmental delegate will need to consider further options in accordance with the Public Service Act 2008 which may include disciplinary action.'[128]

Was the employee given an opportunity to respond?: s 320(c)(ii)

  1. [184]
    Ms Rimland was given the opportunity to respond to the to the claim about her capacity, conduct or performance. The show cause letter provided to her on 7 May 2019 addressed both the conduct (not complying with the direction to attend the IME) and the proposed penalty of termination of her employment.[129]  Ms Rimland responded to the show cause notice on 22 May 2019.[130]

Other matters to be considered by the Commission: s 320(d)

  1. [185]
    With regard to any other matters the Commission considers relevant, I have considered Ms Rimland's submission that she had lodged a public service appeal against the IME direction and that she had made reference to this in her show cause response. I note that there was no stay in place and that as such, the employer was not stopped from continuing with the disciplinary action.  Section 207 (now repealed) of the PS Act had the effect that the public service appeal lapsed when Ms Rimland was terminated and was no longer employed by the State of Queensland. While Ms Rimland's public service appeal was not considered as a result of the disciplinary action being imposed, I have considered whether the direction to attend the IME was fair and reasonable and have decided that it was. The disciplinary action imposed against Ms Rimland was termination and this is not an action able to be appealed through the public service appeal avenue. This current application for reinstatement is the appropriate avenue to have a disciplinary action of termination considered by the Commission. 

Conclusion

  1. [186]
    Essentially, Ms Rimland's argument was that the direction to attend the IME was not lawful and therefore her termination for refusing to follow the direction was unfair.  For the reasons I have given above, I find that the direction was lawful and that Ms Rimland did not provide any reasonable grounds to refuse the direction.
  1. [187]
    The delegate determined that Ms Rimland had not provided an adequate reason for refusing to follow the direction to attend the IME. Having determined that the allegation was substantiated, it was fair and reasonable for the delegate to determine that the grounds for discipline were established.
  1. [188]
    Given that without the IME information, the delegate had determined that it would not be possible to continue the process of finding an appropriate placement for Ms Rimland, I cannot see that one of the other types of disciplinary action available under the relevant section of the PS Act would have been appropriate.
  1. [189]
    There is no evidence before me that the termination of Ms Rimland was harsh, unjust or unreasonable. I find that termination was not unfair.
  1. [190]
    The application for reinstatement is dismissed.

Footnotes

[1] Exhibit 4, SF10.

[2] Laegal v Scenic Rim Regional Council [2018] QIRC 136.

[3] Gold Coast District Health Service v Walker (2001) 168 QGIG 258, [259] (Hall P).

[4] Goldie v Commonwealth of Australia [2002] FCA 433; (2002) 117 FCR 566 and Ruddock v Taylor [2005] HCA 48; (2005) 222 CLR 612.

[5] Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209, [39].

[6] Exhibit 4, SF1, SF7.

[7] Exhibit 3, EH6.

[8] Exhibit 3, EH13.

[9] Exhibit 3, paras 18, 23, 44. 

[10] Affidavit of Ms Rimland sworn 25 October 2021, ex 15.

[11] Submissions of Ms Rimland filed 30 April 2021, para 9.

[12] Exhibit 3, para 73.

[13] Submissions of the Respondent filed 5 May 2021, para 32-35

[14] Exhibit 3, para 20.

[15] Submissions of the Respondent filed 5 May 2021, para 38.

[16] T1-23.

[17] T1-24, L8.

[18] Affidavit of Ms Rimland sworn 25 October 2021, ex 13

[19] Affidavit of Ms Rimland sworn 25 October 2021.

[20] Exhibit EH 4, page 27.

[21] Affidavit of Ms Rimland sworn 25 October 2021.

[22] Affidavit of Ms Rimland sworn 25 October 2021, ex 5; T1-24, Ll 37-38.

[23] Submissions of Rimland filed 30 April 2021, para 8.

[24] Submissions of the Respondent filed 5 May 2021, para 45.

[25] Submissions of the Respondent filed 5 May 2021, para 46.

[26] Affidavit of Ms Rimland sworn 25 October 2021, exhibits 1, 18, 19; Exhibit 4, SF3.

[27] Submissions of Ms Rimland filed 30 April 2021, para 7.

[28] Affidavit of Ms Rimland sworn 25 October 2021, ex 15

[29] SEAWC Directive, cl 13.3(c).

[30] Submissions of Ms Rimland filed 20 April 2021, para 9.

[31] Affidavit of Ms Rimland sworn 25 October 2021, ex 12.

[32] Affidavit of Ms Rimland sworn 25 October 2021, ex 13.

[33] Affidavit of Ms Rimland sworn 25 October 2021, ex 15.

[34] Exhibit 3, EH6.

[35] Exhibit 3, EH6.

[36] T1-30, Ll37-40.

[37] Affidavit of Ms Rimland sworn 25 October 2021, ex 7.

[38] Exhibit 3, para 32.

[39] Exhibit 3, EH7.

[40] Affidavit of Ms Rimland sworn 25 October 2021, para 24.

[41] Submissions of the Respondent filed 5 May 2021, para 62.

[42] Submissions of the Respondent filed 5 May 2021, para 63.

[43] Affidavit of Ms Rimland sworn 25 October 2021, para 19.

[44] T1-28, Ll4-32.

[45] Affidavit of Ms Rimland sworn 25 October 2021, para 19.

[46] Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[47] Affidavit of Ms Rimland sworn 25 October 2021, ex 7.

[48] Affidavit of Ms Rimland sworn 25 October 2021, ex 17

[49] Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[50] Exhibit 3, EH9.

[51] Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[52] Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[53] Exhibit 3, EH10.

[54] Exhibit 3, EH10.

[55] Exhibit 3, EH12.

[56] Exhibit 3, EH12.

[57] Ms Rimland added the word 'acutely' in handwriting to the letter before providing it to Mr Harper.

[58] Exhibit 3, EH13.

[59] T1-32, Ll37-38.

[60] T1-28.

[61] T1-35, Ll10-14.

[62] T1-35, Ll45-47.

[63] T1-36, Ll1-27.

[64] T1-36, Ll29-44.

[65] Exhibit 3, para 24.

[66] Affidavit of Ms Rimland sworn 16 December 2021, ex C.

[67] Exhibit 3, EH13.

[68] Exhibit 3, EH14.

[69] Affidavit of Ms Rimland sworn 25 October 2021, ex 18.

[70] Exhibit 3, EH16.

[71] Affidavit of Ms Rimland sworn 25 October 2021, ex 18.

[72] Exhibit 3, EH16.

[73] Exhibit 3, EH16.

[74] Exhibit 3, EH 17.

[75] Exhibit 3, EH 17.

[76] T1- 44, Ll5-7.

[77] Exhibit 3, EH17

[78] Exhibit 3, EH17.

[79] Exhibit 3, EH3.

[80] Submissions of Ms Rimland filed 30 April 2021, para 5.

[81] SEAWC Directive, cl 11.4(e).

[82] Affidavit of Ms Rimland sworn 25 October 2021, para 32.

[83] Affidavit of Ms Rimland sworn 25 October 2021, ex 22.

[84] Exhibit 3, EH18.

[85] T1-37, L32.

[86] Exhibit 3, para 59.

[87] Exhibit 3, para 60; T1-39, L45 - T1-40, L23.

[88] Affidavit of Ms Rimland sworn 25 October 2021, ex 26.

[89] Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[90] Exhibit 3, EH 19.

[91] Exhibit 4, SF3.

[92] Submissions of the Respondent filed 5 May 2021, para 200.

[93] Submissions of Ms Rimland filed 30 April 2021, para 13.

[94] Exhibit 3, EH 21.

[95] T1-44, L40 - T1-45, L13.

[96] T1-46, Ll28 - 39.

[97] Affidavit of Ms Rimland sworn 25 October 2021, para 17.

[98] T1-46, Ll23-26; T1-47, Ll28-35; Affidavit of Ms Rimland sworn 25 October 2021, ex 17.

[99] Exhibit 3, EH21.

[100] Exhibit 3, EH22.

[101] Exhibit 3, EH23.

[102] Exhibit 3, EH30.

[103] Exhibit 4, SF1.

[104] Exhibit 4, SF2, SF3.

[105] Exhibit 4, SF5.

[106] Exhibit 4, SF7.

[107] T1-47, Ll28-29.

[108] Affidavit of Ms Rimland sworn 25 October 2021, para 49.

[109] T2-22, Ll10-24; T2-25, Ll8-15.

[110] T2-25, Ll16-22.

[111] Respondent's submissions filed on 5 May 2021, para 208.

[112] T1-47, Ll37-45.

[113] T1-19, Ll25 - 30.

[114] Exhibit 4, SF10.

[115] T2-20, Ll5-14.

[116] Submissions filed by Ms Rimland on 30 April 2021, para 14.

[117] Exhibit 4, SF6 is an email trail which identifies Ms Holme in separate instances as both 'Assistant Director-General' and 'A/Director-General' in her signature block.

[118] T2-7, L44 – T2-8, L10.

[119] T2-10, Ll1 - 17.

[120] T2-16, Ll1-8.

[121] Respondent submissions filed 5 May 2021, para 202.

[122] T1-49.

[123] Exhibit 4, SF11.

[124] Exhibit 4, SF13.

[125] Submissions of Ms Rimland filed 30 April 2021, para 17.

[126] Submissions of the Respondent filed 5 May 2021, para 205.

[127] Exhibit 4, SF13.

[128] Exhibit 4, SF5, SF7.

[129] Exhibit 4, SF10.

[130] Exhibit 4, SF11.

Close

Editorial Notes

  • Published Case Name:

    Rimland v State of Queensland (Department of Communities, Disability Services and Seniors)

  • Shortened Case Name:

    Rimland v State of Queensland (Department of Communities, Disability Services and Seniors)

  • MNC:

    [2021] QIRC 265

  • Court:

    QIRC

  • Judge(s):

    Member Pidgeon IC

  • Date:

    30 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
Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209
3 citations
Jump To
Cite 1 - [2021] QIRC 209
Cite 2 - [2021] QIRC 209
Cite 3 - [2021] QIRC 209
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Goldie v Commonwealth of Australia [2002] FCA 433
1 citation
Jump To
Cite 1 - [2002] FCA 433
Goldie v Commonwealth of Australia (2002) 117 FCR 566
1 citation
Jump To
Cite 1 - (2002) 117 FCR 566
Laegal v Scenic Rim Regional Council [2018] QIRC 136
2 citations
Jump To
Cite 1 - [2018] QIRC 136
Cite 2 - [2018] QIRC 136
Ruddock v Taylor (2005) 222 CLR 612
1 citation
Jump To
Cite 1 - (2005) 222 CLR 612
Ruddock v Taylor [2005] HCA 48
1 citation
Jump To
Cite 1 - [2005] HCA 48

Cases Citing

Case NameFull CitationFrequency
Rimland v State of Queensland (Department of Communities, Disability Services and Seniors) [2022] ICQ 95 citations
1

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