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Nguyen v State of Queensland (Queensland Health)[2021] QIRC 267

Nguyen v State of Queensland (Queensland Health)[2021] QIRC 267

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nguyen v State of Queensland (Queensland Health) [2021] QIRC 267

PARTIES:

Nguyen, Thi Hien

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/74

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

2 August 2021

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. That the decision maker's determination to substantiate Allegation Four was fair and reasonable on the evidence before her at that time.
  2. The decision maker shall conduct a fresh review as to whether or not Allegation Two is to be substantiated. The further submissions made by Ms Nguyen during this appeal process are to be considered by the decision maker.
  3. 'Management action' is the appropriate course to address MSHHS's concerns in this matter.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – allegations of inappropriate conduct against the appellant – whether decision was fair and reasonable – where respondent failed to consider all the relevant information – consideration of appropriate approach – where finding on one allegation was fair and reasonable – where finding on second allegation not fair and reasonable

LEGISLATION & OTHER

INSTRUMENTS:

Code of Conduct for the Queensland Public Service (January 2011)

Directive 14/20 Discipline cl 4, cl 6, cl 7, cl 8, cl 14

Directive 15/20 Positive Performance Management cl 4, cl 5, cl 6, cl 7, cl 9

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567

Metro South Health, Addiction and Mental Health Services, Procedure: Adult – Acute Behavioural Disturbance Management (ABDM) within the Acute Adult Inpatient Psychiatric Units (MSAMHS.PR1027/v3/03/2020)

Metro South Health, Addiction and Mental Health Services, Procedure: Seclusion of Consumers (MSAMHS.PR2034/v3/05/2020)

Public Service Act 2008 (Qld) s 3, s 25, s 25A, s 26, s 186C, s 187, s 187A, s 188, s 194, s 195

Queensland Health, Human Resources Policy: Discipline E10 (QH-POL-124) (June 2020) cl 2, cl 3, cl 4

CASES:

Ambrey v Oswin [2004] QSC 224

Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321

Barker v Queensland Fire and Rescue Authority (2000) QSC 395

Briginshaw v Briginshaw (1938) 60 CLR 336

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

Gilmour v Waddell & Ors [2019] QSC 170

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170

Reasons for Decision

  1. [1]
    Ms Thi Hien Nguyen (the Appellant) is currently employed as a Registered Nurse (RN) with the Metro South Hospital and Health Service (MSHHS).  She works at the Metro South Addiction and Mental Health Service (MSAMHS), Ward 2C, Logan Hospital. 
  1. [2]
    Ms Nguyen commenced employment with Queensland Health (the Respondent) on 12 October 2015.
  1. [3]
    Four allegations regarding Ms Nguyen's workplace conduct on 23 July 2020 were put to her in correspondence from Mr Kieran Kinsella, Executive Director, MSAMHS dated 11 November 2020 (the Allegations Letter).
  1. [4]
    A disciplinary process ensued.  Ms Nguyen was invited to provide written submissions in response to the allegations, including whether she admitted or denied the allegations and any relevant explanation.  She replied in correspondence dated 3 December 2020 (the Response Letter).
  1. [5]
    Subsequently, two of the four allegations concerning Ms Nguyen were found to be substantiated. 
  1. [6]
    In correspondence dated 4 January 2021 (the Decision Letter), Ms Linda Hipper, A/Executive Director, MSAMHS (the decision maker) found that Ms Nguyen had "acted inappropriately and unreasonably" on 23 July 2020 when she:

Allegation two

…placed Consumer UR312466 in emergency seclusion, without reasonable grounds or explanation.[1]

Allegation four

…authorised and assisted in the removal of Consumer UR312466 clothing from her body, without explanation or an opportunity for the consumer to remove the clothing herself.[2]

  1. [7]
    On the balance of probabilities, the decision maker considered there were grounds for Ms Nguyen to be disciplined under s 187(1)(g) of the Public Service Act 2008 (Qld) (PS Act).  In particular, that she may have contravened, without reasonable excuse, a relevant standard of conduct (namely the Code of Conduct for the Queensland Public Service) in a way that is sufficiently serious to warrant disciplinary action. 

Specifically, with respect to Allegation Two:[3]

Principle

Value

Action

3

Commitment to the system of government

3.1 Commit to our roles in public service:

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

e. Adhere to the policies, organisational values and organisational document of our employing agency.[4]

Specifically, with respect to Allegation Four:[5]

Principle

Value

Action

1

Integrity and Impartiality

1.1 Commit to the highest ethical standards:

As public service employees we are required to ensure that our conduct meets the highest ethical standards when we are fulfilling our responsibilities.

b. Ensure our decision making is ethical.

  1. [8]
    The Decision Letter also proposed a disciplinary penalty in the following terms:

  Proposed disciplinary action

In relation to the imposition of a disciplinary action, I am currently giving serious consideration to the disciplinary action of:

  • A reprimand.

 Furthermore, I am giving serious consideration to the management action of:

  • completion of "Introduction to Trauma: Becoming Trauma Informed" training via LEAP online; and
  • shadowing a peer support worker for a shift.
  • to support the management action, a temporary secondment for a period of 3 months as a Registered Nurse to ward 2J/K, Logan Hospital.

However, in accordance with the principles of natural justice, no final determination of the disciplinary action has been made, or will be made, until you have had the opportunity to respond.[6]

  1. [9]
    On 17 February 2021, Ms Nguyen filed an Appeal Notice against the decision.  She appointed her union – the Queensland Nurses' and Midwives' Union of Employees (the QNMU) – as her representative.
  1. [10]
    The following day, Mr Ben Jenkins, Director, Employment Relations, Metro South HR, MSHHS confirmed that the show cause process had now paused, to enable Ms Nguyen's appeal to be heard and determined.[7]  That undertaking was again confirmed in MSHHS's submissions.[8]

Appeal Grounds

  1. [11]
    Ms Nguyen's appeal is brought on the following grounds:[9]
  1. The two disciplinary findings have been made without full consideration of all the relevant information.
  1. The decision to "impose a disciplinary penalty is premature".
  1. The appropriate approach to "improve any perceived performance deficits" is as outlined in Directive 15/20: Positive Performance Management (PPM Directive), rather than in Directive 14/20: Discipline (Discipline Directive) in the circumstances.
  1. [12]
    My determinations regarding those appeal grounds may be summarised as follows:
  1. It was open to the decision maker to find that Allegation Four was substantiated, on the information available to her.
  1. It was not open to the decision maker to find that Allegation Two was substantiated. 
  1. There has been no decision to impose a disciplinary penalty.  A proposed penalty cannot be subject to review at this stage as only decisions can be appealed. A 'proposal' is not a 'decision'.
  1. Addressing the two substantiated allegations in accordance with the PPM Directive is not the appropriate approach in this case, as that pertains to the management of 'work performance' rather than 'conduct' concerns.  However, the substantiated allegation should be addressed through the 'management action' rather than 'disciplinary action' pathway.[10]

Jurisdiction

  1. [13]
    Section 194 of the PS Act identifies the categories of decisions against which an appeal may be made. Section 194(1)(b)(i) of the PS Act provides that an appeal may be made "against a decision under a disciplinary law to discipline – a person (other than by termination of employment), including the action taken in disciplining the person."
  1. [14]
    Ms Nguyen has been an employee of the Respondent at all times relevant to this appeal.
  1. [15]
    I am satisfied that the decision made by MSHHS pertaining to Ms Nguyen, contained in the Decision Letter dated 4 January 2021, can be appealed in part.  For the reasons that follow, the proposed penalty section of the letter is not capable of appeal.
  1. [16]
    Ms Nguyen has filed this matter under s 194(1)(b) of the PS Act as an appeal against a disciplinary decision.  I note that MSHHS has submitted the appeal may be treated as a fair treatment decision under s 194(1)(eb) of the PS Act.  I have included the relevant extracts of the PS Act at paragraph [41] below.  Foundationally though, in either case, I am required to consider whether the decision made was fair and reasonable - and so I will proceed on that basis.

Timeframe to Appeal

  1. [17]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [18]
    The decision was given to Ms Nguyen on 27 January 2021. 
  1. [19]
    The Appeal Notice was filed with the Industrial Registry on 17 February 2021.
  1. [20]
    I am satisfied that the Appeal was filed by Ms Nguyen within the required timeframe.

Appeal principles

  1. [21]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[11]  This is the key issue for my determination.  Subsection (4) provides that for an appeal against a decision about disciplinary action, the commission:
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [22]
    A public service appeal under the IR Act is not by way of rehearing,[12] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [23]
    Findings made by MSHHS, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Queensland Industrial Relations Commission member may allow other evidence to be taken into account.[13]
  1. [24]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [25]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Decision Letter

  1. [26]
    The decision maker determined that Allegation Two and Allegation Four are substantiated on the balance of probabilities.
  1. [27]
    On the basis of those findings, the decision maker determined there to be grounds for Ms Nguyen to be disciplined pursuant to s 187(1)(g) of the PS Act in that she "may have contravened, without reasonable excuse, a relevant standard of conduct (namely the Code of Conduct for the Queensland Public Service) in a way that is sufficiently serious to warrant disciplinary action".[14]
  1. [28]
    The decision maker included an 'Analysis' of each allegation, by way of explanation as to how she arrived at her findings on the balance of probabilities.

Submissions

  1. [29]
    In accordance with the Directions Order issued on 22 February 2021, the parties filed written submissions.
  1. [30]
    The Appellant's Submissions were filed on 1 March 2021. 

Attachment 1 contained an email from Mr Terry Burgess, Nursing Director, Addiction and Mental Health Services, Logan Hospital, Metro South Health dated 15 May 2020.

  1. [31]
    The Respondent's Submissions were filed on 17 March 2021. 

Attachment 1 contained the Allegations Letter dated 11 November 2020; File Note dated 4 August 2020 authored by Ms Liz Powell, Director of Nursing, Addiction and Mental Health Services; extracts of PS Act, ss 187, 187A, 188; Code of Conduct for the Queensland Public Service dated 1 January 2011; Queensland Health, Human Resources Policy: Discipline E10 (QH-POL-124) dated June 2020; Metro South Health, Addiction and Mental Health Services, Procedure: Adult – Acute Behavioural Disturbance Management (ABDM) within the Acute Adult Inpatient Psychiatric Units (MSAMHS.PR1027/v3/03/2020); Metro South Health, Addiction and Mental Health Services, Procedure: Seclusion of Consumers (MSAMHS.PR2034/v3/05/2020).

Attachment 2 contained Ms Nguyen's written response to the four allegations dated 3 December 2020 (the Response Letter).

Attachment 3 contained the Decision Letter dated 4 January 2021.[15]

  1. [32]
    The Appellant's Reply Submissions were filed on 26 March 2021.
  1. [33]
    The Appeal Notice filed 17 February 2021 refers to the PPM Directive and Discipline Directive.  These documents have also been subject of my consideration.
  1. [34]
    I have carefully considered all submissions and materials.  I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' positions in my consideration of each question to be decided.

 Relevant provisions of the PS Act

  1. [35]
    The purposes of the PS Act are found at s 3 (emphasis added):

3 Main purposes of Act and their achievement

  1. (1)
    The main purposes of this Act are to—
  1. (a)
    establish a high performing apolitical public service that is—
  1. (i)
    responsive to Government priorities; and
  1. (ii)
    focused on the delivery of services in a professional and non–partisan way; and
  1. (b)
    promote the effectiveness and efficiency of government entities; and
  1. (c)
    provide for the administration of the public service and the employment and management of public service employees; and
  1. (d)
    provide for the rights and obligations of public service employees; and
  1. (e)
    promote equality of employment opportunity in the public service and in other particular agencies in the public sector.
  1. (2)
    To help achieve the main purposes, this Act—
  1. (a)
    fixes principles to guide public service management, public service employment and the work performance and personal conduct of public service employees; and

     …

  1. [36]
    Section 25(2) of the PS Act relevantly provides as follows (emphasis added):

  Public service employment is to be directed towards promoting –

  1. (a)
    best practice human resource management,  ;

  …

  1. [37]
    Section 25A of the PS Act relevantly provides as follows (emphasis added):
  1. (1)
    For best practice human resource management and in recognition that public service employees are selected on merit under the merit principle, the management of public service employees must be directed towards the following –

…

  1. (e)
    providing opportunities and support to employees for improving performance;
  1. (f)
    continuously improving performance through the provision of training and development;
  1. (g)
    identifying at the earliest possible stage performance that does not meet expectations;
  1. (h)
    integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.
  1. (2)
    The principles mentioned in subsection (1) are the positive performance management principles.

…

  1. [38]
    Section 26(3) of the PS Act relevantly provides as follows (emphasis added):

Further, a public service manager must –

  1. (a)
    pro-actively manage the work performance and personal conduct of public service employees under the manager's management; and
  1. (b)
    if a case of unacceptable work performance or personal conduct arises, take prompt and appropriate action to address the matter.
  1. [39]
    Section 186C of the PS Act relevantly provides as follows (emphasis added):

Requirement to apply positive performance management principles before taking disciplinary action for performance

A public service employee's chief executive must not take disciplinary action against a public service employee for a matter relating to the employee's performance until the chief executive has complied with a directive under section 25A(3) about applying the positive performance management principles in relation to the matter.

  1. [40]
    Section 187 of the PS Act relevantly provides as follows (emphasis added):
  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

  …

  1. [41]
    Section 194 of the PS Act relevantly provides as follows:
  1. (1)
    An appeal may be made against the following decisions—

…

(b) a decision under a disciplinary law to discipline—

 (i) a person (other than by termination of employment), including the action  taken in disciplining the person; or

…

(eb)a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

…

  1. (2)
    However –

(a)if an appeal may be made under this section against a decision, other than under subsection (1)(eb), the appeal can not be made under subsection (1)(eb);

…

  1. [42]
    Section 195 of the PS Act relevantly provides as follows:

(3A) A person can not appeal against a fair treatment decision —

…

 (b) made under chapter 6, part 2, other than a finding under section 187 that a disciplinary  ground exists for the person; or

…

Relevant provisions of the Directives

  1. [43]
    The Discipline Directive relevantly provides:

7. Discipline for conduct

7.1 Section 187 of the PS Act provides a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises.

7.2 The circumstances in which a contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action are where the chief executive forms a view that management action is not likely to address and/or resolve the work performance matter.

7.3 In forming a view under clause 7.2, the chief executive must consider whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development. Additionally, the chief executive must consider:

  1. (a)
    whether the matter has been assessed as meeting the definition of corrupt conduct and has been referred to the Crime and Corruption Commission, or has been referred to the Queensland Police Service as a potential criminal offence
  1. (b)
    whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence, or maladministration)
  1. (c)
    whether implementing management action would eliminate or effectively control the risk to the health and safety of employees, or other people, posed by the alleged conduct
  1. (d)
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector
  1. (e)
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct
  1. (f)
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct.

 8. Discipline process

8.1 Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice.

8.2 The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.

8.3 Show cause process for disciplinary finding

  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

8.4 Decision on grounds (disciplinary finding)

  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

8.5 Show cause process for proposed disciplinary action

  1. (a)
    The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).
  1. (b)
    The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.
  1. (c)
    The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act.
  1. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee's explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. (e)
    A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.
  1. (f)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. (g)
    If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 8.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
  1. [44]
    The PPM Directive relevantly provides (emphasis added):

4Principles

4.3Management of all employees must be directed towards the positive performance principles in section 25A of the PS Act.

…

4.5Section 26 of the PS Act requires managers to proactively manage employees' work performance and to take prompt and appropriate action if unacceptable work performance arises.

4.6Section 186C of the PS Act requires a chief executive to apply positive performance management principles before taking disciplinary action for work performance.

…

5Positive performance management

5.1Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles:

…

5.2Chief executives are required to integrate the positive performance management principles into their agency's management practices and policies.

5.3Managers are required to incorporate the positive performance management principles into their management practices.

6Processes for managing employee work performance

Positive performance management

6.1Agencies must incorporate the positive performance management principles and the processes detailed in clauses 5.1 – 5.3 into their policies and processes about managing employee work performance to ensure:

(a)managers set clear expected outcomes linked to organisational performance objectives and plans, including through the use of performance development agreements in lined with agency policies

(b)managers provide regular and constructive feedback on an employee's work performance, including recognising work performance that meets and exceeds expectations, and feedback on areas of work performance that need improvement, as is appropriate in the circumstances

(c)managers promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct

(d)constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector.

7Decision to commence a structured process to manager unacceptable work performance in a supportive way

7.1The process for managing unacceptable work performance must be supportive, directed to the positive performance management principles, and take into account factors (work related and non-work related) that may be affecting the employee:

…

7.3Prior to determining whether it is fair and reasonable to initiate a PIP, the chief

executive must ensure the following conditions have been met:

(a)the expected level of work performance for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance

(b)the expected level of work performance was relevant and appropriate to the role

(c)the unacceptable work performance or the gap between actual and expected work performance was previously raised, documented and discussed with the employee

(d)the employee was offered appropriate support and allowed a reasonable period of time to self-correct.

…

9 Definitions

Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, poor work performance or unacceptable behaviours at the earliest possible opportunity.

Consideration of the disciplinary findings made

  1. [45]
    I will now consider whether MSHHS's determination to substantiate Allegation Two and Allegation Four was fair and reasonable.

Balance of probabilities

  1. [46]
    The decision maker substantiated the two allegations on the 'balance of probabilities'.  The wording of Briginshaw v Briginshaw[16] is incorporated into the Disciplinary Directive, and there is no contention that said principle does not apply in this instance. 
  1. [47]
    Clause 14 of Discipline Directive prescribes that:

 For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • Relevance of the evidence to the allegations
  • Seriousness of the allegations
  • Inherent likelihood or improbability of a particular thing or event occurring
  • Gravity of the consequences flowing from a particular finding.
  1. [48]
    In civil matters, the standard of proof is the balance of probabilities.[17]  The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed.  As explained by Dixon J in Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[18]

  1. [49]
    It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur.  It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'.  Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence.  In Chamberlain v The Queen (No 2), Gibbs CJ and Mason J provided:

When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged…[19]

  1. [50]
    The question is then whether it was open for the decision maker to be reasonably satisfied of each of the substantiated disciplinary findings.  That question informs whether the decision was fair and reasonable.  It is not a hearing de novo.
  1. [51]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170 (emphasis added, citations removed):[20]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

Allegation Two - Consideration

During your shift commencing 23 July 2020, in your role as a Registered Nurse in Charge, Ward 2C, Short Stay, Logan Hospital, you acted inappropriately and unreasonably when you placed Consumer UR312466 in emergency seclusion, without reasonable grounds or explanation.[21]

  1. [52]
    The allegation was put to Ms Nguyen for her response.  She did so in correspondence dated 3 December 2020.  In summary, Ms Nguyen stated that:
  1. (a)
    This action was not taken inappropriately or unreasonably, or without grounds or explanation.
  1. (b)
    The consumer had been asked to remain in her room for her own safety, given its location directly across from the staff station, the requirement for 15 minute visual observations due to risk of self-harm and in recognition of her vulnerability in a mixed ward at that time.
  1. (c)
    The consumer did not remain in her room as requested and was located in the sitting area generally used by only male consumers.  The consumer declined to return to her room. 
  1. (d)
    At Ms Nguyen's invitation, she agreed to accompany her around the ward for about 5 minutes.  During this time, the consumer was disruptive, using abusive language and asking to be discharged.  The consumer went to several exit doors in an attempt to abscond.  Upon finding it locked, she would bang on the door in frustration.
  1. (e)
    The consumer had been admitted under a treatment authority and was unable to be discharged at that time.
  1. (f)
    The consumer was asked multiple times to quieten down as others were sleeping, to return to her room and discuss her discharge with the doctor in the morning.  The consumer refused to listen to any staff.  Verbal de-escalation was attempted but was unsuccessful. 
  1. (g)
    The consumer again demanded that her oral medication be provided.  She was advised that no oral medications were available to her.  The consumer became increasingly agitated and upset.  She continued to insist upon her regular oral medication.  Ms Nguyen had already explained on a number of occasions that she was not permitted to have oral medication.
  1. (h)
    Due to the consumer's ongoing disruptive and abusive behaviour, and as Ms Nguyen was not able to safely manage the consumer on her own, she contacted security for assistance.
  1. (i)
    Security attended and engaged with the consumer, who after some conversation reluctantly returned to her room.[22]
  1. (j)
    The consumer was asked to stay in her room and not to leave.  The consumer was advised she could be given IMI medication to assist her to settle and sleep but instead demanded oral medication.  The consumer was again advised oral medication was not an option for her, as directed by the doctor and recorded in the EIMR.
  1. (k)
    The consumer became dismissive and increasingly agitated, as she tried to push past security staff in an attempt to leave the room.  Security staff physically restrained the consumer and IMI medication was administered by Ms Nguyen in an attempt to settle her.  Prior to the arrival of security, Ms Nguyen had explained on multiple occasions that the IMI medication was the only available option.  Ms Nguyen drew on her experience to form the view the medication was clinically indicated and the nature of the consumer's admission provided authority to administer medication without her explicit consent in the circumstances.  Having reviewed the footage, some of the sound is inaudible however Ms Nguyen is certain the consumer was made aware by both herself and the security staff that she would soon receive the IMI medication.
  1. (l)
    During restraint, the "consumer was fighting security – kicking, screaming and punching at security, striking one of the security officers in the testicles.  Due to this behaviour, I decided that the consumer needed to be moved to a safer environment with less stimulation, in order to allow the medication time to take effect.  I made this clinical decision based on my knowledge of her health history, which presented a risk that her behaviour could lead to more serious events such as self harm.  This can be verified in her consumer history.  The consumer was verbally informed of this decision."[23]
  1. (m)
    Ms Nguyen asked another RN to contact the Psych Registrar on call to inform the consumer is being moved to emergency seclusion and have them attend and review the consumer as soon as possible.
  1. (n)
    Ms Nguyen asked a Clinical Nurse (CN) to prepare an emergency seclusion room and she did so.
  1. (o)
    The consumer was moved by security to the emergency seclusion room, "screaming and fighting with security the whole way."  The CN and an Enrolled Nurse (EN) were present when Ms Nguyen and security arrived with the consumer to assist with the seclusion.
  1. [53]
    In the course of this Appeal process, Ms Nguyen has provided further information in support of the appropriateness of her decision to authorise the consumer's seclusion and in response to MSHHS's concern with the period of time between administering an IMI and the seclusion order being issued.[24]  The further information provided by Ms Nguyen was not available to the decision maker at the time of issuing the Decision Letter.
  1. [54]
    In the Appeal Notice, it was submitted that "Ms Nguyen now has the benefit of understanding what the delegate has relied upon to substantiate the allegations before her and appeal the decision to substantiate the allegations" and "The basis of this appeal is Ms Nguyen reports the delegates have not fully considered all the relevant information in arriving at their decision to substantiate two (2) allegations." 
  1. [55]
    I note that the Discipline Directive prescribes that disciplinary findings must result from the chief executive's review of "all relevant material, including any submissions from the employee" and for each such disciplinary finding, the chief executive "must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established."[25]  Queensland Health's Discipline Policy also provides that "Allegations must be supported by objective evidence which has taken into account all relevant materials."[26] 
  1. [56]
    The Decision Letter does not contain all these components, with respect to Allegation Two.
  1. [57]
    Specifically, while the decision maker has approached the requirement of the Discipline Directive in the usual way - by summarising Ms Nguyen's written response to the particular allegation immediately underneath it – that summary inclusion inexplicably stops short of the entirety of Ms Nguyen's response. Importantly, the Decision Letter summary of Ms Nguyen's response stops before recording her account of how and why she made and effected the decision to place the consumer in emergency seclusion.  That is a critical omission by the decision maker, as it goes to the very heart of the allegation.  Ms Nguyen's grounds of appeal include that she cannot be assured that the delegate has "fully considered all the relevant information in arriving at their decision to substantiate" this allegation.  I agree that is the case, with respect to the recording of Ms Nguyen's response to Allegation Two in the Decision Letter at the very least.

Allegation Two - Finding

  1. [58]
    As the Decision Letter does not include reference to the material paragraphs in Ms Nguyen's Response Letter, I cannot be satisfied that all relevant material has been considered by the decision maker in making the disciplinary finding, as required. 
  1. [59]
    On that basis, I find that it was not open for the decision maker to be satisfied to the requisite standard that Allegation Two was substantiated at this time.  As such, the decision was not fair and reasonable.

Allegation Two - Remedy

  1. [60]
    The question then is what is the appropriate remedy?  In my view, the appropriate course is that Allegation Two cannot be considered to be substantiated at this time.  Instead, the matter will be returned to the decision maker to be considered afresh.  The decision maker's consideration of whether Allegation Two is found to be substantiated or not shall include the further information provided by Ms Nguyen in the course of this appeal, together with this Decision.

Allegation Four - Consideration

During your shift commencing 23 July 2020, in your role as a Registered Nurse in Charge, Ward 2C, Short Stay, Logan Hospital, you acted inappropriately and unreasonably when you authorised and assisted in the removal of Consumer UR312466 clothing from her body, without explanation or an opportunity for the consumer to remove the clothing herself.[27]

  1. [61]
    The allegation was put to Ms Nguyen for her response.  She did so in correspondence dated 3 December 2020.  In summary, Ms Nguyen stated that:
  1. (a)
    Ms Nguyen denied acting inappropriately when she authorised and assisted in the removal of the consumer's clothing.
  1. (b)
    She believed it was reasonable and clinically indicated to remove all her clothing due to her chronic suicidal history.  As per the risk assessment and her clinical judgement, the recommended method for safety of the consumer is to have all clothing removed and be placed in a seclusion gown.  Due to the consumer's aggressive behaviour and concerns for the safety of staff in attendance at that time, security staff continued to assist in managing this consumer.
  1. (c)
    Security assisted in the continued use of restraint for the safety of all involved.
  1. (d)
    The consumer was advised that her clothing would be removed and changed to seclusion attire.  This procedure was immediately initiated. 
  1. (e)
    Security continued to assist with restraint, as it continued to be indicated by her aggression.
  1. (f)
    Ms Nguyen was concerned that if restraint was released, the consumer may try to harm herself or the staff in attendance, consistent with her behaviour immediately prior to arriving in seclusion.
  1. (g)
    As soon as this procedure had been completed, restraint was immediately concluded.
  1. [62]
    My observations at paragraphs [53] – [55] above are also relevant here.  I recognise that in the course of this Appeal process, Ms Nguyen has provided further information in support of the appropriateness of her decision to authorise and assist in the removal of the consumer's clothing in seclusion in response to MSHHS's concerns.   The further information provided by Ms Nguyen was not available to the decision maker at the time of issuing the Decision Letter.

Allegation Four - Finding

  1. [63]
    The conclusions that have been drawn from the evidence before the decision maker reasonably justified her determination that Allegation Four is substantiated, as the evidence established that it was more probable than not that the alleged conduct occurred.
  1. [64]
    Queensland Health's Discipline Policy states that "The employee is to be provided a reasonable opportunity to be heard, i.e. to make a full and detailed response regarding the information (the hearing rule)."[28]  However, a reasonable opportunity is not an unfettered opportunity.  MSHHS followed the requirements for the show cause process with respect to a disciplinary finding.[29]  Written details provided to Ms Nguyen for her response included the allegation, particulars, the disciplinary ground applicable to the allegation and a copy of all evidence / documentation considered relevant to the facts.  I further note that the required time period of 14 days was initially provided in which Ms Nguyen was to respond, but that an extension of time was sought and granted. 
  1. [65]
    With the benefit of hindsight, I appreciate that Ms Nguyen now reflects that a more detailed defence to Allegation Four may have been warranted - and that if it had been put then perhaps "the provision of further information would lead the respondent to arrive at a different outcome"[30].  However, the question for my determination is whether or not the decision maker's determination to substantiate the allegation was fair and reasonable on the information before her.
  1. [66]
    On that basis, I find that it was open for the decision maker to be satisfied to the requisite standard that Allegation Four was substantiated. As such, that decision was fair and reasonable.

Procedural fairness

  1. [67]
    Ms Nguyen has submitted that "The analysis contained in the outcome provided further insights not detailed in the original allegations regarding the concerns held by the Respondent, which the Appellant had not previously had an opportunity to address.  The Appellant believes the provision of further information would lead the respondent to arrive at a different outcome regarding allegations 2 and 4."[31]  Further that "The Appellant was not privy to all relevant information informing the decision maker when she was provided with an opportunity to respond."[32]
  1. [68]
    Unfortunately, Ms Nguyen did not go on to identify or explain precisely what "further insights" or "relevant information" she did not have the opportunity to respond to.
  1. [69]
    Absent any specific identification of such evidence said to be before the decision maker that Ms Nguyen was denied the opportunity to respond to, it is not clear what I am to make of that submission. 
  1. [70]
    The only potential issue that may be inferred from Ms Nguyen's complaint may be that of the security footage.  I note the Allegations Letter invites Ms Nguyen to view the BWC footage taken by the Safety Response Officer on the 23 July 2020 when they attended her call to assist with consumer UR312466.[33]  The Clinical Review conducted by Ms Liz Powell, Director of Nursing, MSAMHS signed 25 August 2020 was provided as an attachment to the Allegations Letter and refers to "security footage", "the footage", "the CCTV footage".[34]  These terms appear to be used interchangeably, as Ms Powell refers to "the CCTV footage" in circumstances where the Safety Response Officers are present.  Where the Clinical Review assesses events prior to the attendance of the Safety Response Officers, Ms Powell refers to other sources, such as "the patient's physical restraint record notes".[35]  In her written response to the Allegations Letter, Ms Nguyen acknowledges that she has "viewed available footage" and that she was able "to view footage from the body worn cameras only.  I requested to view the ward CCTV, this footage was not available."[36]  The Decision Letter 'Analysis' sections for Allegation Two and Four stated that "From review of the footage…" and "The conduct exhibited in the footage…" both refer to the emergency seclusion event, in which the Safety Response Officers were present.  It is a reasonable inference to draw then that the "footage" referred to was the BWC footage that Ms Nguyen had viewed prior to preparing her written response.  The Respondent's submissions also refers to the term "CCTV footage"[37] but as this is in the context of referring to Ms Powell's Clinical Review, I consider that the term has been used interchangeably with BWC footage, for reasons explained above.
  1. [71]
    My careful review of both the Allegations Letter and the Decision Letter persuades me that the evidence relied upon was put to Ms Nguyen for her response as required. 
  1. [72]
    I note the Discipline Directive prescribes that the written details of each allegation must include: the allegation; the particulars of the facts considered by the chief executive for the allegation; and the disciplinary ground under s 187 of the PS Act that applies.  Further that "a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee…"[38]  The Allegations Letter contains these components.
  1. [73]
    The format of Ms Nguyen's written submissions suggests some regret that she had not conveyed to the decision maker a more comprehensive account of the entirety of the circumstances of Allegations Two and Four at the time of providing her written response to the Allegations Letter.  Having now received MSHHS's Decision Letter indicating the proposed disciplinary penalty, I appreciate Ms Nguyen's reflection that there may have been some utility in the provision of further additional information.[39]  However, that circumstance is quite different from a lack of procedural fairness.
  1. [74]
    Queensland Health's Discipline Policy states that "An employee subject to a discipline process is to be sufficiently informed about the allegations and evidence against them, as well as any proposed action or disciplinary decision, so that the employee may respond to the case against them.  The employee is to be provided a reasonable opportunity to be heard, i.e. to make a full and detailed response regarding the information (the hearing rule)."[40] 
  1. [75]
    I accept that Ms Nguyen was afforded procedural fairness in the course of the process undertaken in the following ways: the opportunity to view the BWC footage taken by the Safety Response Officer when they attended her call to assist on 23 July 2020; the opportunity to view relevant sections of the clinical chart of consumer UR312466; the extension of time granted to submit the written response to the Allegations Letter; the written notation that she may wish to seek union assistance in preparing her response; and the identification of her appeal rights should she wish to exercise them. 
  1. [76]
    However, as I have found above, a critical omission in the Decision Letter with respect to Allegation Two requires the decision maker to undertake a fresh consideration of all the relevant evidence and submissions to establish the appropriate disciplinary finding.

Consideration of whether decision to "impose a disciplinary penalty is premature"[41]

  1. [77]
    Ms Nguyen submitted that "the decision to impose a disciplinary penalty is premature".[42]
  1. [78]
    The PS Act at s 194 sets out the types of 'decisions' which may be appealed.  That includes a decision to impose discipline.[43] 
  1. [79]
    However, the Decision Letter provides as follows:

  Proposed disciplinary action

In relation to the imposition of a disciplinary action, I am currently giving serious consideration to the disciplinary action of:

  • A reprimand.

 Furthermore, I am giving serious consideration to the management action of:

  • completion of "Introduction to Trauma: Becoming Trauma Informed" training via LEAP online; and
  • shadowing a peer support worker for a shift.
  • to support the management action, a temporary secondment for a period of 3

  months as a Registered Nurse to ward 2J/K, Logan Hospital.

However, in accordance with the principles of natural justice, no final determination of the disciplinary action has been made, or will be made, until you have had the opportunity to respond.[44]

  1. [80]
    In considering what constitutes a decision, Cullinane J found in Ambrey v Oswin that:

A decision must, for the purposes of the act be one which is "final --- operative and determinative --- in a practical sense of the issue in fact falling for --- consideration."[45]

  1. [81]
    Further, White J in Barker v Queensland Fire and Rescue Authority found that a decision:

… must have a quality of finality, not being a step taken on the way to the possible making of an ultimate decision. It must have the essential quality of being a substantive as distinct from a procedural determination …[46]

  1. [82]
    The proposal of a disciplinary penalty - followed by an invitation for submissions as to "why the above proposed disciplinary action should not be imposed"[47] within a reasonable timeframe - is not a final and operative decision.  It is a procedural determination that further action may be taken. 
  1. [83]
    As such, that portion of the Decision Letter is not appealable, as it is not a decision. 

Consideration of the appropriate approach to "improve any perceived performance deficits"[48]

  1. [84]
    I have found that it was open to the decision maker to conclude that Allegation Four was substantiated on the evidence before her. 
  1. [85]
    I now turn to consider the appropriate pathway to address MSHHS's concerns. 
  1. [86]
    The purposes of the PS Act are found at s 3 and have been reproduced at paragraph [35].  As such, determining what is fair and reasonable in this instance includes consideration of the rights of Ms Nguyen, alongside MSHHS's obligation to provide a safe and efficient workplace for staff and patients.
  1. [87]
    The Appeal Notice stated that "Further, the QNMU asserts the decision to impose a disciplinary penalty is premature in the circumstances due to the requirement to completely exhaust the steps outlined in the Public Service Directive [POSITIVE PERFORMANCE MGMT], and allow Ms Nguyen the opportunity to improve any perceived performance deficits prior to commencing a disciplinary proceeding under Public Service Directive [DISCIPLINE]."[49]
  1. [88]
    The contention that the two allegations be addressed under the PPM Directive is not the appropriate approach in this case, as that pertains to the management of 'work performance' issues rather than 'conduct' concerns.[50]  The entirety of the PPM Directive is centred on management of work performance. 
  1. [89]
    That reasoning is also supported with reference to the Discipline Directive.  Clause 5 'Requirements to commence a discipline process' details the decision criteria for assessing whether to commence a disciplinary process for a 'work performance' and / or 'personal conduct' matter.  Clause 6 'Discipline for performance' references s 186C of the PS Act and provides that

…a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.

That appears to be the particular provision relied on by Ms Nguyen.

  1. [90]
    However, cl 7 'Discipline for conduct' of the Discipline Directive sets out the decision criteria for assessing whether to commence a disciplinary process for a "contravention of a relevant standard of conduct under section 187(1)(g) of the PS Act".  That is the precise grounds for discipline referenced in the Decision Letter.  Unlike the preceding provision regarding discipline for work performance, there is no requirement that the PPM Directive be first complied with in respect of such conduct matters.  The wording of s 186C of the PS Act is consistent with the interpretation I have applied, referring only to disciplinary action for "performance".
  1. [91]
    While I find that MSHHS's determination to address the conduct concerns under the Disciplinary Directive is correct, the substantiated allegation is best suited for resolution through the 'management action' rather than 'disciplinary action' pathway in my view.[51]  My reasons follow.
  1. [92]
    The Discipline Directive contains the principles that (emphasis added):

 4.1Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct.  Early intervention, even in the context of a likely disciplinary process, provides the best hope for:

  • the cessation of unacceptable conduct
  • early resolution
  • preserving working relationships, and
  • avoiding an unnecessary and disproportionately protracted dispute.

4.2 Discipline is not appropriate for matters that may be dealt with:

  1. (a)
    through management action, which may include use of alternative dispute resolution (ADR), use of warnings, or other management action that is reasonable in the circumstances
  1. (b)
    under the directive on positive performance management.
  1. [93]
    Further, Queensland Health's Discipline Policy states:

2 Requirement to consider management action

Before commencing the disciplinary process, the delegate must consider whether management action could more appropriately address the concern.  A disciplinary process is not suitable for management action and managers need to undertake early intervention to address unacceptable conduct.[52]

  1. [94]
    As explained above, as the two allegations have been characterised as pertaining to Ms Nguyen's workplace "conduct" on 23 July 2020, cl 7 'Discipline for conduct'[53] is particularly relevant to my consideration.  To paraphrase the relevant provision, disciplinary action for a conduct contravention would be embarked upon where management action is considered to be unlikely to resolve the work performance matter.[54] 
  1. [95]
    In forming that view, consideration must be given to "whether there are more proactive strategies than disciplinary action to manage the personal and professional development of employees, including through training and development"[55] – and the following factors must be considered:
  1. (a)
    Whether the matter is corrupt conduct or a potential criminal offence
  1. (b)
    "Whether management action is an appropriate response based on the nature of the alleged conduct (for example, management action is not appropriate for matters involving theft, fraud, sexual harassment, negligence or maladministration)"[56]
  1. (c)
    Whether implementing management action would eliminate or effectively control the risk to health and safety posed by the conduct
  1. (d)
    Whether management action would alleviate or mitigate the impact of the conduct on the employee, colleagues, workplace, complainant and reputation of the public sector
  1. (e)
    Whether management action has recently been taken for previous similar incidents but did not result in sustained correction of employee conduct
  1. (f)
    "if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether

the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct."[57]

  1. [96]
    With respect to those mandatory considerations, the Decision Letter does not contain any elaborated reasoning for MSHHS's determination that the substantiated allegations be addressed through a disciplinary process - rather than management action exclusively - other than by reference to the wording of s 187(1)(g) of the PS Act.  It is recognised that the 'proposed disciplinary action' contained in the Decision Letter was expressed as a combination of both 'disciplinary action' and 'management actions.'  Clearly, MSHHS has considered both pathways to addressing the conduct concerns. 
  1. [97]
    In considering whether the determination to pursue a 'disciplinary action' and 'management action' pathway was fair and reasonable in the circumstances, I have relied on the decision criteria detailed in cl 7.3 of the Disciplinary Directive.  On the basis of the material before me, I find that addressing the two substantiated conduct allegations through a 'proposed disciplinary action' mechanism is precipitous in Ms Nguyen's case.  My reasons follow.
  1. (a)
    With respect to the two allegations, the Decision Letter does not assert that constituted corrupt conduct or a potential criminal offence.[58] 
  1. (b)
    The nature of the two allegations are inconsistent with the examples given of where management action is not appropriate.[59]
  1. (c)
    In my view, management action to correct the conduct concerns would serve to "eliminate or effectively control the risk to health and safety posed by the conduct"[60] in this case.
  1. (d)
    In my view, management action to correct the conduct concerns would serve to "alleviate or mitigate the impact of the conduct on the complainant"[61] in this case.
  1. (e)
    It cannot be said here that "Management action has recently been taken for previous similar instances…but did not result in sustained correction of the employee's conduct."[62]  Rather, it was submitted that "A review of the Appellant's employment history across the past six (6) years demonstrates the Appellant performs the role of an RN with the skill and experience consistently required by the Respondent in their day to day activities of providing good quality health service to Queenslanders."[63]  Ms Nguyen's claim of an unblemished disciplinary history was not contested by the MSHHS either at the time of the Decision Letter or in the Respondent's submissions filed.  On the basis that remains unchallenged, I accept it to be true.
  1. (f)
    I note that the two allegations occurred during the shift on 23 July 2020.  In that sense, it can be said to be an "isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours)."  In those circumstances, the final factor that must be considered is "whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct."[64]  Given the Decision Letter proposed a combination of disciplinary action (the proposed reprimand) and proposed suite of management actions (online training, shadowing a peer support worker for a shift, temporary secondment), it appears that MSHHS does have the required confidence that management action will correct the conduct. 
  1. [98]
    I also note that Ms Nguyen has offered the following undertakings in the course of this Appeal process:

"The Appellant remains committed to continuous improvement in her conduct and performance and providing the best possible care for Queenslanders in her role as a Registered Nurse with the Metro South Hospital and Health Service."[65]

"The Appellant is committed to continuous improvement in all areas of her work as an RN, and confirms she is keen to undertake additional online education offered to her by the Respondent."[66]

  1. [99]
    Even in her initial response to the Allegations Letter, Ms Nguyen had reflected with empathy that "I am saddened this consumer reports being distressed by the events of this day.  I acknowledge that being an inpatient mental health consumer is a difficult time and I work hard to ensure the safety of all people within the service, including consumers, visitors and colleagues."[67]
  1. [100]
    The above factors are significant and should be given the appropriate weight by MSHHS in determining whether a 'disciplinary' response or 'management action' is ultimately best suited to addressing the substantiated allegation.  

Conclusion

  1. [101]
    In the course of this appeal, Ms Nguyen has rejected the proposed disciplinary penalty as premature.  She has asked that the decision maker give consideration to her further submissions, length of service, clinical experience and otherwise unblemished employment record. 
  1. [102]
    I appreciate that with a decision in this appeal now released, the paused process will reset at the point of the decision maker's fresh consideration of Allegation Two.  That will include the further submissions made by Ms Nguyen during this appeal process. 
  1. [103]
    My determination that it was fair and reasonable for the decision maker to find Allegation Four to be substantiated means that process will resume with the decision maker's consideration of an appropriate proposal of management action. 
  1. [104]
    In light of my findings confirming MSHHS's determination of Allegation Four, I encourage the parties to collaboratively engage as to how the conduct concerns may be appropriately addressed.  I have recognised that MSHHS has not yet 'determined' the disciplinary action and management actions, but rather has only 'proposed' it.  With reference to the mandatory decision criteria contained in the Discipline Directive, I have explained why I consider 'management action' to be the appropriate course on the evidence before me. 
  1. [105]
    Certainly, there appears to be great potential for the precise nature of the appropriate management action support to be settled by agreement between the parties within one or more of the 'proposed management actions' contemplated by MSHHS in the Decision Letter – or indeed by any other suggestions that Ms Nguyen or her union may go on to propose in response.  For example, I note that Ms Nguyen has already positively embraced MSHHS's offer of the directly relevant online training that may be made available to her.  However, while I have identified those matters for the parties to progress – the question of precisely what management action(s) is appropriate in these circumstances is beyond the scope of this Appeal.
  1. [106]
    I order accordingly.

Orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. That the decision maker's determination to substantiate Allegation Four was fair and reasonable on the evidence before her at that time.
  2. The decision maker shall conduct a fresh review as to whether or not Allegation Two is to be substantiated.  The further submissions made by Ms Nguyen during this appeal process are to be considered by the decision maker.
  3. 'Management action' is the appropriate course to address MSHHS's concerns in this matter.

Footnotes

[1] Decision Letter, dated 4 January 2021, page 2.

[2] Decision Letter, dated 4 January 2021, page 4.

[3] Decision Letter, dated 4 January 2021, page 3.

[4] Including the MSAMHS Procedure PRO2034/V3/05/2020.

[5] Decision Letter, dated 4 January 2021, page 5.

[6] Decision Letter, dated 4 January 2021, page 6.

[7] Email from Mr Ben Jenkins, Director, Employment Relations, Metro South HR, MSHHS dated 18 February 2021.

[8] Respondent’s submissions filed 17 March 2021, page 2, [14].

[9] Appeal Notice filed 17 February 2021, page 4.

[10] With respect to the mandatory decision criteria detailed at cl 7.2 – 7.3 of the Discipline Directive.

[11] Industrial Relations Act 2016 (Qld) s 562B(3).

[12] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[13] Industrial Relations Act 2016 (Qld) s 567(2).

[14] Decision Letter, dated 4 January 2021, pages 3 and 4.

[15] This document was also provided as an Attachment to the Appeal Notice filed on 17 February 2021.

[16] (1938) 60 CLR 336 ('Briginshaw').

[17] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170 – 171.

[18] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[19] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.

[20] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[21] Decision Letter, dated 4 January 2021, page 2.

[22] Ms Nguyen’s account of events to this point only was included in the Decision Letter.  This is problematic as the actual act of placing the consumer in emergency seclusion (subject of Allegation Two) had not even occurred at this point of Ms Nguyen’s explanation in her written response.

[23] Response Letter, dated 3 December 2020, page 3.

[24] Appellant’s submissions filed 1 March 2021 and Appellant’s Reply submissions filed 29 March 2021.

[25] Directive 14/20 Discipline cl 8.4(a)–(c).

[26] Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 4.

[27] Decision Letter, dated 4 January 2021, page 4.

[28] Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 3.

[29] Directive 14/20 Discipline cl 8.3

[30] Appellant’s submissions filed 1 March 2021, page 1, [7].

[31] Appellant’s submissions filed 1 March 2021, page 1, [6] – [7].

[32] Appellant’s Reply submissions filed 29 March 2021, page 2, [8].

[33] Allegations Letter, page 10.

[34] Clinical Review.

[35] Clinical Review, page 4.

[36] Response Letter dated 3 December 2020, page 1.

[37] Respondent’s submissions filed 17 March 2021, page 4, [24].

[38] Directive 14/20 Discipline cl 8.3(b) – (c).

[39] Appellant’s submissions filed 1 March 2021 stated "The Appellant notes in her original response:" and then "Further, noting the outcome, the Appellant notes:", page 2, [13] – [14] and page 3, [21] – [22].

[40] Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 3.

[41] Appeal Notice filed 17 February 2021, page 4.

[42] Ibid.

[43] Public Service Act 2008 (Qld) s 194(1)(b)(i).

[44] Decision Letter, dated 4 January 2021, page 6.

[45] Ambrey v Oswin [2004] QSC 224, [32] citing Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321, 337.

[46] (2000) QSC 395.

[47] Decision Letter, dated 4 January 2021, page 6.

[48] Appeal Notice filed 17 February 2021, page 4.

[49] Ibid.

[50] Directive 15/20 Positive Performance Management cl 1.2.

[51] With respect to the mandatory decision criteria detailed at cl 7.2 – 7.3 of Directive 14/20 Discipline.

[52] Queensland Health, Human Resources Policy, Discipline, E10 (QH-POL-124), June 2020, cl 2.

[53] Directive 14/20 Discipline.

[54] Directive 14/20 Discipline cl 7.2.

[55] Ibid cl 7.3.

[56] Ibid cl 7.3(b). 

[57] Ibid cl 7.3(f).

[58] Ibid cl 7.3(a).

[59] Ibid cl 7.3(b).

[60] Ibid cl 7.3(c).

[61] Ibid cl 7.3(d).

[62] Ibid cl 7.3(e).

[63] Appellant’s submissions filed 1 March 2021, page 4, [28].

[64] Directive 14/20 Discipline cl 7.3(f).

[65] Appellant’s Reply submissions filed 29 March 2021, page 2, [9].

[66] Appellant’s submissions filed 1 March 2021, page 4, [26].

[67] Response Letter, dated 3 December 2021, page 4.

Close

Editorial Notes

  • Published Case Name:

    Nguyen v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Nguyen v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 267

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    02 Aug 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
Ambrey v Oswin [2004] QSC 224
2 citations
Jump To
Cite 1 - [2004] QSC 224
Cite 2 - [2004] QSC 224
Australian Broadcasting Tribunal v Bond (1990) 170 CLR 321
2 citations
Jump To
Cite 1 - (1990) 170 CLR 321
Cite 2 - (1990) 170 CLR 321
Barker v Queensland Fire and Rescue Authority [2000] QSC 395
2 citations
Jump To
Cite 1 - [2000] QSC 395
Cite 2 - [2000] QSC 395
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
R v Chamberlain (1984) 153 C.L.R 521
2 citations
Jump To
Cite 1 - (1984) 153 C.L.R 521
Cite 2 - (1984) 153 C.L.R 521

Cases Citing

Case NameFull CitationFrequency
Manttan v State of Queensland (Department of Education) [2022] QIRC 2382 citations
Robynson v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2022] QIRC 2442 citations
1

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