Hutchison v State of Queensland (Queensland Health)
[2021] QIRC 317
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- Unreported Judgment
- Hutchison v State of Queensland (Queensland Health)[2021] QIRC 317
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Hutchison v State of Queensland (Queensland Health)[2021] QIRC 317
Hutchison v State of Queensland (Queensland Health)[2021] QIRC 317
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 |
PARTIES: | Hutchison, Alison (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2021/250 |
PROCEEDING: | Public Service Appeal – Fair Treatment Appeal |
DELIVERED ON: | 14 September 2021 |
MEMBER: | Pidgeon IC |
HEARD AT: | On the papers |
OUTCOME: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed. |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against disciplinary finding – where the appellant was convicted of fraud for conduct external to employment – whether that conduct grounds to substantiate allegations of misconduct under Public Service Act 2008 – whether Human Rights Act 2019 was considered when making disciplinary finding |
LEGISLATION: | Human Rights Act 2019, s 15, s 32, s 34, s 58 Industrial Relations Act 2016, s 562B, s 562C Public Service Act 2008, s 187, s 188, s 192A, s 194, s 195 Code of Conduct for the Queensland Public Service Directive 14/20: Discipline |
CASES: | Castles v Secretary of the Department of Justice [2010] VSC 310 Commissioner of Taxation v Day (2008) 236 CLR 163 Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300 Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255 Gilmour v Waddell & Ors [2019] QSC 170 R v Wilhelm [2010] NSWSC 378 Wirth v Mackay Hospital and Health Service [2016] QSC 39 |
Reasons for Decision
- [1]Ms Hutchison (the Appellant) is employed by the State of Queensland (Queensland Health), (the Respondent) as a Clinical Nurse at Cairns and Hinterland Hospital and Health Service (CHHHS).
- [2]On 11 December 2020, Ms Hutchison plead guilty and was subsequently convicted of a charge of Fraud – dishonestly gain benefit/advantage under s 408C(1)(d) of the Criminal Code (Qld).
- [3]Ms Hutchison was sentenced to a period of imprisonment of eighteen months, to be suspended after a period of three months, with an operational period of two years.
- [4]Following a period of incarceration, on 12 March 2021, Ms Hutchison was suspended from duty on normal remuneration pursuant to s 137(1)(b) of the Public Service Act 2008 (the PS Act).
- [5]A show cause process was initiated on 4 May 2021 when Ms Hutchison was asked why disciplinary findings should not be made against her in relation to the following allegation:
On 11 December 2020, you pleaded guilty to and were subsequently convicted of the following charge:
• Section 408C(1)(d) of the Criminal Code Act 1899 (Qld) ("Criminal Code") – Fraud – dishonestly gain benefit/advantage
That on the 24th day of February at Cairns City or elsewhere in the State of Queensland, one Alison Jane Hutchison dishonestly gained a benefit for herself.
- [6]On 24 June 2021, Ms Hutchison was provided with a letter and an accompanying statement of reasons under the hand of Erica Gallagher, Executive Director People and Engagement, CHHHS. The letter informed Ms Hutchison that
- the allegation was substantiated on the balance of probabilities; and
- on the basis of that finding, pursuant to s 187(1)(b) of the PS Act, Ms Hutchison is guilty of misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act.
- [7]The letter went on to outline proposed disciplinary action and invited Ms Hutchison to show cause why proposed disciplinary action should not be taken. At this stage it is clear that disciplinary findings have been made but that no decision on disciplinary action. The proposed disciplinary penalty is not a decision which can be appealed.
- [8]It became clear to me as I read Ms Hutchison's submissions that she was also seeking to appeal the 'decision to commence a disciplinary process'. For reasons provided below, I have determined that the decision to commence a disciplinary process is not able to be considered as part of this appeal.
- [9]In her notice of appeal filed on 14 July 2021, Ms Hutchison states that the determination is unfair and unreasonable as:
- the determination is unfair and unreasonable within its common meaning;
- the determination of 24 June does not comply with the responsibilities necessitated under Policy E10, misconduct; and/or
- the determination is inconsistent with the Appellant's rights pursuant to the Human Rights Act 2019 (Qld) (HR Act).
- [10]In deciding this appeal I am considering whether it was fair and reasonable for the delegate to substantiate the allegation set out at [4] and determine that disciplinary grounds were established as set out at [5].
Is the Appellant entitled to appeal?
- [11]Section 194 of the PS Act lists various categories of decisions against which an appeal may be made. Section 194(1)(b)(i) 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. Ms Hutchison's appeal was lodged as an appeal against a disciplinary decision. At this stage, there has been no decision made to discipline Ms Hutchison. Ms Hutchison's appeal is against the finding that grounds for discipline have been established and therefore is better characterised as a fair treatment appeal. I determined to proceed in this way and the parties have made submissions as per directions.
- [12]Ms Hutchison received a letter containing disciplinary findings on 25 June 2021 and filed an appeal against the decision with the Industrial Registry on 14 July 2021, within 21 days after receipt of the notice.
- [13]I am satisfied that the Appellant may appeal the decision as a fair treatment appeal.
Appeal Principles
- [14]Section 562B(3) of the IR Act provides that the appeal is to be decided by reviewing the decision appealed against and that "the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable".
- [15]Hartigan IC in Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300 refers to the principles of an unreasonable decision as outlined by Ryan J in Gilmour v Waddell & Ors [2019] QSC 170:
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.[1]
- [16]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision maker, should not be expected to be disturbed on appeal.
- [17]A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision maker. To determine the appeal, I will consider whether the decision to substantiate the allegations and determine that there was a disciplinary finding was fair and reasonable.
- [27]In deciding this appeal, s 562C(1) of the Industrial Relations Act 2016 (IR Act) provides that the Commission may:
- (a)confirm the decision appealed against; or
- (b)For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Background
- [28]It is not in dispute that Ms Hutchison was convicted of the criminal offence. In the statement of reasons attached to the decision being appealed, Ms Gallagher said:
- Significantly, you admit that the allegations made against you detailing the facts of the criminal offence are true.
- I have reviewed the material available to me, including the transcript of the proceedings and am satisfied that on 11 December 2020 you appeared before Magistrate Pinder at the Cairns Magistrates Court and plead guilty to the abovementioned charge the subject of the allegation.
- I have reviewed the transcript of the sentencing decision and am satisfied that on 11 December 2020 you were convicted of the charge the subject of the allegation against you. Further, Magistrate Pinder made the following Order:
- a.that you be imprisoned for a period of eighteen months, to be suspended after a period of three months, with an operational period of two years; and
- b.a conviction be recorded.
- You do not deny that you were subsequently imprisoned on 11 December 2020, and were released from prison after serving a period of three months.
- Having regard to the above, including your admissions, I am satisfied that the allegation is substantiated on the balance of probabilities.
- [29]Having established that the allegation was substantiated on the balance of probabilities, Ms Gallagher then turned to the grounds for discipline and the reasons for determining that Ms Hutchison was guilty of misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act.
- [30]Ms Gallagher noted that Ms Hutchison was employed in her position of Clinical Nurse at the time the conduct subject of the criminal charge occurred. Ms Gallagher also listed the duties and responsibilities of Ms Hutchison's role.[2]
- [31]Ms Gallagher said that as an employee of CHHHS, Ms Hutchison is required to ensure that her private conduct does not reflect seriously and adversely on the public service. Ms Gallagher said that she had given consideration to the nature and seriousness of the offending and the circumstances surrounding Ms Hutchison's conduct.
- [32]Later in the statement of reasons Ms Gallagher said:
- In my view, the charge of fraud against you is extremely serious. Your offence was a planned fraud, a deliberate action, reasonably sophisticated and involved significant application of dishonesty. Your dishonesty extended from your false report made to police, a fraudulent insurance claim and dishonest denials during your interview with the police.
- Significantly, you did not cooperate with police in circumstances where you denied that you had committed the fraud in a record of interview, which then resulted in the police, (being another agency of the State of Queensland) being required to further investigate the offence.
- The public expects that all public servants, and in particular staff within a health service charged with providing services to some of the State's most vulnerable people, will act with honesty and integrity. This level of dishonesty (whilst it occurred in your private capacity) is clearly incompatible with the expected standards of a public service employee, and with the duties and responsibilities of your position with the Health Service.
- [33]Ms Gallagher noted the submissions on mitigating factors made on Ms Hutchison's behalf during the hearing of the matter and the background facts Ms Hutchison provided in her response to the first show cause notice. The background facts were:
- During the time the offence was committed, Ms Hutchison was in a controlling and abusive relationship with her partner and was therefore vulnerable;
- Ms Hutchison's partner planned the crime and she felt compelled to comply with his plan;
- Ms Hutchison takes full responsibility for her role in committing the criminal offence, but submits that it was not something that she would have done on her own volition.
- [34]Ms Gallagher concluded that the background factors listed above were 'insufficient to justify the extent of your dishonesty, including during your interview with the police'. With regard to the mitigating factors raised at the hearing of the matter, Ms Gallagher found that these were taken into account by Magistrate Pinder in the sentencing decision and that they did not change or justify the nature of the conduct Ms Hutchison had admitted to engaging in.
- [35]Ms Gallagher stated that she found it significant that a review of the transcripts showed that Ms Hutchison's employment with CHHHS was made public during the course of the criminal proceedings. This occurred in the context of Ms Hutchison's lawyer referring to a letter provided for the proceedings from Ms Patricia Smith, Ms Hutchison's immediate line manager.
- [36]Ms Gallagher went on to cite two articles published in the Cairns Post in December 2020 which outlined the details of Ms Hutchison's criminal offence and identified that she was employed by the Health Service as a Clinical Nurse. Ms Gallagher said that she noted Ms Hutchison's submission that she did not write the articles and that the information
was only obtained by journalists through attending the court hearing, however it was clear that the nature of the criminal charges, and Ms Hutchison's identify as an employee of the Health Service were detailed on the public record, in open court and in the newspaper.
- [37]Ms Gallagher's statement of reasons concluded:
- Having regard to all the circumstances, I am satisfied that the conduct you engaged in was highly dishonest, inappropriate and improper, and negatively undermines the public's confidence and trust in the Health Service and brings the organisation into disrepute.
- Having regard to the above, I am satisfied that you have engaged in inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the Act and, therefore, are guilty of misconduct pursuant to s 187(1)(b) of the Act.
Ms Hutchison's submissions
- [38]Ms Hutchison submits that:
- it was not open to the Respondent to decide to bring disciplinary proceedings against Ms Hutchison on the basis of her human rights as provided for under the HR Act;
- the grounds for the decision to substantiate the allegation and the decision that disciplinary grounds exist (and the decision to propose disciplinary action), were unfair and/or unreasonable pursuant to s 562B of the IR Act.
- the decisions were unfair/unreasonable on the basis that they were entirely incompatible with Ms Hutchison's human rights pursuant to the HRA; and
- the respondent was required to and failed to, make decisions that were compatible with Ms Hutchison's human rights.
Right to a fair and public hearing
- [39]Ms Hutchison had a right to a fair and public hearing pursuant to s 31 of the HR Act.
- [40]Ms Hutchison had a right to legal representation and the use of witnesses in a criminal trial pursuant to s 32(2)(d)-(h) of the HR Act.
- [41]The statement of reasons provided to Ms Hutchison considered that her employment with the Respondent was stated in open court and published in the Cairns Post. Ms Hutchison's employment was raised in the context of a character reference provided by her supervisor in an official capacity.
- [42]Ms Hutchison says that the argument that flows is that she is being punished for a character reference written by Ms Smith in an official capacity. Ms Smith did not act outside of the Code of Conduct for the Queensland Public Service (Code of Conduct) by writing the character reference.
- [43]Ms Hutchison properly exercised her rights in a public hearing through the use of legal representation and a character witness. It was not open to the Respondent to make a decision to bring forth an allegation against Ms Hutchison on the basis of the exercising of her rights.
- [44]It was not fair for the disciplinary finding to be made in reliance on what flowed from Ms Hutchison properly exercising her rights to a fair and public hearing. Formulating decisions on the basis of the transcript of or the legal argument presented at a fair and reasonable hearing was not reasonable.
- [45]The Respondent formulating any and all decisions on the basis of Ms Hutchison exercising her rights, renders her unequal before the law and not 'entitled to equal protection of the law without discrimination' pursuant to s 15(3) of the HR Act.
Right not to be punished more than once
- [46]Pursuant to s 34 of the HR Act, the Appellant has the right not to be punished or tried more than once for an offence.
- [47]The word 'punished' is not defined under sch 1 of the HR Act and would therefore take on its ordinary meaning. According to Macquarie Australia's National Dictionary, the word 'punish' is defined as 'subject to a penalty, or pain, loss, confinement, death, etc., for some offence, transgression or fault.'
- [48]The Respondent had an obligation according to cl 4.5 of the Public Service Commission Directive 14/20: Discipline (the Directive), 'to act and make decisions in a way that is compatible with human rights'.
- [49]The heart of the issue is whether the decision that grounds existed to bring forth an allegation, infringed on the human right of the Appellant not to be further punished or tried for an offence of which she has already been convicted.
- [50]Had the Respondent made a decision that was compatible with the human right of Ms Hutchison, the decision ought to have been that no grounds existed to bring forth an allegation and disciplinary proceedings by the fact that she had already been tried, punished and convicted for that criminal offence.
- [51]It was not fair to bring a disciplinary process against Ms Hutchison for the criminal conviction. Additionally, the decision was not reasonable as it subjects Ms Hutchison to being punished a second time for the same offence.
Losing the right to a proper defence due to extra-curial punishment
- [52]Ms Hutchison submits that as discussed in R v Wilhelm [2010] NSWSC 378, the effects of publicity surrounding a criminal case and the effects that would have on the offender's future employment prospects were termed extra-curial punishment.
- [53]A Court is required to ensure that the punishment is just in all the circumstances.[3] A court must ensure that the punishment will help the offended rehabilitate.[4] Finally a court must have regard to any mitigating circumstances and any other relevant circumstances.[5] The sentencing process is non-mechanical and involves the consideration of multiple factors.[6]
- [54]Ms Hutchison has suffered extra-curial punishment by way of the articles posted on Cairns Post suffering at the hands of public opinion.
- [55]Subjecting Ms Hutchison to a disciplinary process is a continuation of the extra-curial punishment.
- [56]Ms Hutchison has lost the right and opportunity to properly plead mitigating circumstances in her sentencing trial. The disciplinary process has in effect robbed Ms Hutchison of the opportunity to plead during the trial, the mitigating circumstance that the sentencing could lead to the termination of her employment. The disciplinary process results in Ms Hutchison losing the right to a fair and public hearing and this in turn renders the decision to bring a disciplinary process against her not fair and not reasonable.
Submissions of the Respondent
- [57]The Respondent notes that Ms Hutchison is only able to appeal the disciplinary finding and says that the Commission lacks jurisdiction to hear and determine the 'decision to bring the allegation' or the 'decision to propose disciplinary action of termination'.
The decision was fair and reasonable
- [58]As a preliminary matter, the PS Act makes clear that a public servant's inappropriate or improper conduct in a private capacity may be a ground for discipline. Section 187(4)(b) of the PS Act provides that 'misconduct' includes:
Inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
- [59]The central argument of Ms Hutchison's appeal appears to be that it would be unlawful or unreasonable for the Respondent to take disciplinary action against her because she has already been punished by way of a criminal conviction and term of imprisonment.
- [60]Ms Hutchison would appear to be conflating punishment in the criminal jurisdiction and disciplinary action to be taken by her employer, being an administrative process taken pursuant to chapter 6 of the PS Act.
- [61]The Respondent considers it uncontroversial that a criminal conviction for fraud (whilst it occurred in a private capacity) could, and in this instance does fall within the meaning of 'misconduct' pursuant to s 187(4)(b) of the PS Act. It would cause an absurd outcome if an employer were not able to take disciplinary action against an employee for misconduct within the meaning of the PS Act, where that conduct is so serious it resulted in a criminal conviction.
Right to a fair and public hearing
- [62]The Respondent does not cavil with Ms Hutchison's submission that pursuant to ss 31 and 32 of the HR Act, she has a right to a fair and public hearing, the right to legal representation and the use of witnesses.
- [63]Ms Hutchison was charged and convicted in open court. Therefore it was reasonable for the Respondent to have regard to anything said or done in open court, including for instance, any evidence, legal arguments or character references. As these matters were discussed in open court, it is relevant to the Respondent's consideration of whether the conduct '…reflects seriously and adversely on the public service'. The Respondent contends that this is basis of the disciplinary finding and not, as Ms Hutchinson submits, a result of her exercising her rights.
- [64]The Respondent acknowledges that the publishing of a news article is outside of Ms Hutchison's control, but submits that it is entitled to consider and place reliance on articles (amongst other things) when determining whether her conduct reflects seriously and adversely on the public service.
- [65]Accordingly, the Respondent submits that it has not made a decision incompatible with Ms Hutchison's right to a fair and public hearing or any other rights under the HR Act.
Right not to be punished more than once
- [66]The Respondent submits that the disciplinary finding does not attempt to try or punish Ms Hutchison for the criminal offence of fraud. The Respondent has made a disciplinary finding that Ms Hutchison's conduct is such that it constitutes misconduct pursuant to s 187(1)(b) of the PS Act within the meaning of s 187(4)(b).
- [67]When determining what disciplinary action to take, the primary aim is to protect the public and the integrity of the public service, not to punish the employee per se.
- [68]The Respondent submits that it has not made a decision incompatible with Ms Hutchison's right not to be tried or punished more than once or any other rights under the HR Act and/or in the alternative in the event that s 34 of the HR Act extends to a disciplinary finding pursuant to the Act, the Respondent submits that it validly limited Ms Hutchison's human rights as contained in s 34 of the HR Act only to the extent that is reasonable and demonstrably justifiable pursuant to s 13 of the HR Act.
- [69]If Ms Hutchison's submissions were to be accepted, the State of Queensland (as an employer) would be prevented from taking disciplinary action against public servants for any conduct resulting in a criminal conviction.
Lost right to a proper defence due to extra-curial punishment
- [70]With regard to the two cases referred to by Ms Hutchison,[7] the Respondent does not consider the cases to be relevant or of assistance to the Commission in determining whether the decision appealed against was fair and reasonable.
- [71]The Respondent submits that:
- any 'extra curial punishment' suffered by way of the articles posted on the Cairns Post are outside the control or otherwise of the Respondent;
- commencing a disciplinary process pursuant to chapter 6 of the PS Act is not a 'continuation of extra-curial punishment'. The commencement of a disciplinary process for misconduct in a private capacity is expressly permitted pursuant to s 187 of the PS Act;
- the disciplinary process did not 'rob' Ms Hutchison of the opportunity to plead during the trial the mitigating circumstances that an effect of sentencing could be the termination of her employment.
Decisions were not otherwise unfair and/or unreasonable
- [72]Ms Hutchison has not articulated how the decision was otherwise unfair and unreasonable. For completeness, the Respondent submits that the decision was fair and reasonable noting that:
- Ms Hutchison was informed of the specific nature of the allegation against her by way of the First Show Cause Notice and provided with copies of the documents to be considered by Ms Gallagher in relation to the matter;
- Ms Hutchison provided a response to the first show cause notice which was considered by Ms Gallagher;
- Ms Hutchison was given detailed reasons in the second show cause notice why Allegation 1 was substantiated (noting Ms Hutchison accepted the allegation in her response);
- it was open to Ms Gallagher to find that Allegation 1 was substantiated; and
- it was open to Ms Gallagher to find that Ms Hutchison is guilty of misconduct pursuant to s 187(1)(b).
Ms Hutchison submissions in reply
Jurisdictional objections
- [73]With respect to jurisdiction, Ms Hutchison accepts that the decision to propose disciplinary action of termination is not a decision that can be appealed.
- [74]With regard to the Respondent's submission that the 'decision to commence disciplinary action' is not a decision that can be appealed, Ms Hutchison says that the decision to commence disciplinary action was made pursuant to cl 5.1 of the Directive. Section 194(1)(a) of the PS Act states that an appeal may be made against a decision to take, or not take, action under a directive.
"Careful" consideration of Human Rights
- [75]Pursuant to s 58 and s 58(5) of the HR Act, the Respondent was required to give proper consideration to Ms Hutchison's human rights whilst making any decisions and imposes the obligation to identify the human rights that may be affected by the decision.
- [76]Ms Hutchison points to page 12 of 'A guide for public entities'[8] which describes the obligation under s 58 of the HR Act to be both substantive and procedural.
- [77]The Respondent submits that if there has been an infringement of human rights, it was done so in compliance with s 13 of the HR Act. However, Ms Hutchison says that the interplay between s 58 of the HR Act and s 13 of the HR Act places the obligation on the Respondent to demonstrate the human rights that were taken into consideration when making any decisions before and during the disciplinary process.
- [78]Clause 8.3(c) of the Directive placed an obligation on the Respondent to provide Ms Hutchison with evidence relevant to the facts considered. The Respondent made a mere statement that Ms Hutchison's human rights had been taken into consideration but failed to demonstrate the human rights that were taken into consideration and failed to do so in its written submissions.
- [79]Ms Hutchison says that it is open for the Commission to infer that there was no consideration to Ms Hutchison's human rights. Further, the decision to bring forth the allegation was unfair and unreasonable as the Respondent has failed to demonstrate a proper consideration of Ms Hutchison's human rights.
Queensland Health Policy E10 (QH-POL-124)
- [80]Pursuant to cl 1 of the policy, the Respondent was required to give proper consideration to Ms Hutchison's human rights. Clause 4 sets out what the Respondent must have considered when determining whether to commence a disciplinary process. Ms Hutchison refers to Wirth v Mackay Hospital and Health Service[9] which she says states that the policy was a minimum standard and as a result the employee must be provided all the information to be relied upon when determining an allegation.
- [81]At every step of the process, the Respondent was required to consider the human rights of the Appellant prior to making a final determination. In particular, 'whether further information is required to commence a disciplinary process'. The Respondent was required to demonstrate that consideration and provide Ms Hutchison with the necessary information and has failed to do so.
Right to a fair and public hearing
- [82]In making the decision, the Respondent relied on the submissions made in open court and the publishing of news articles in considering whether the conduct 'reflects seriously and adversely on the public service'.
- [83]If the Respondent had properly considered Ms Hutchison's human rights, it would have viewed the conduct in the context of the conduct alone and not relied on Ms Hutchison's proper exercise of her human rights.
- [84]To rely on the record of the court in order to determine whether the conduct reflects seriously and adversely on the public service is inappropriate, infringes on her human right and results in an unfair/unreasonable decision.
Losing right to proper defence due to extra-curial punishment
- [85]The decision taken by the Respondent can be characterised as extra-curial punishment as it arises outside the confines of the sentences imposed by the court. This alone renders the decisions of the Respondent unfair and unreasonable. Further and in the alternative, the decision has retrospectively robbed Ms Hutchison of her rights to properly plead the possibility of losing her employment as a mitigating factor during her sentencing hearing.
Decisions were otherwise unfair and unreasonable
- [86]The heart of Ms Hutchison's submissions is that the decisions were unfair and unreasonable because they were inconsistent with her human rights.
- [87]Further or in the alternative, the decisions were unfair and unreasonable within the common meaning of the words.
- [88]The injustice arises from the very fact that Ms Hutchison had plead guilty and served a period of imprisonment and to be subjected to further punishment is unjust.
- [89]The decision is unreasonable because Ms Hutchison's conduct and conviction are completely unrelated to her duties in the public service and any reading of the allegations shows that it was not the fraud that has offended her employer, rather that her manager wrote a reference and that this mentioned Queensland Health and further that it became the subject of media attention.
- [90]It is open for the Commission to find that it is the public embarrassment of media attention while exercising the appellant's human rights that is the real and motivating reason.
- [91]The finding of misconduct is unfair and unreasonable because it was nearly entirely anchored over the reporting of the conviction, not the fraud in and of itself.
- [92]Ms Hutchison respectfully submits that it was unreasonable that the finding of misconduct was made and set it aside and substitute it for no finding of misconduct.
Consideration
Jurisdiction
- [93]There is no question that the proposed disciplinary action is not a decision that can be appealed.
- [94]With regard to the decision to commence a disciplinary process, s 195 of the PS Act sets out Decisions against which appeal cannot be made. Relevantly, it states that a person cannot appeal against a fair treatment decision made under chapter 6, part 2, other than a finding under s 187 that a disciplinary ground exists for the person.
- [95]Chapter 6, part 2 of the PS Act deals with disciplinary action for public service employees and former public service employees. Section 192A deals with directives about disciplinary action and investigating grounds for discipline and grievances. The relevant Directive to this matter states that the employee has appeal rights with regard to the disciplinary finding or the disciplinary decision.
- [96]In my view, the decision to commence a disciplinary process is not capable of being appealed, though it is clear that considerations of whether the proper process is followed in disciplinary matters can impact on whether a disciplinary finding or decision is fair and reasonable.
- [97]Even if I am wrong with regard to that, I make the following observations: firstly, if it was Ms Hutchison's intention to appeal the decision to commence the disciplinary process by way of an appeal against a decision to take action under a directive, such an appeal would need to have been made within 21 days of the first show cause notice being provided to her.
- [98]Not only did Ms Hutchison not appeal or dispute the commencement of the disciplinary process, in her response to the show cause notice, she says:
I write in response to your correspondence dated 4/5/2021, namely Show Cause 1.
I accept the introduction, background and allegation on you (sic) letter, but wish to add some detail to this. I also accept that you have complied with the Discipline Directive of the Queensland Public Service.[10]
- [99]For those reasons, I will not give further consideration to the decision to commence a disciplinary process.
- [100]It is accepted by all parties that Ms Hutchison is able to appeal the disciplinary finding.
The substantiation of the allegation
- [101]There is no dispute that it was open to Ms Gallagher to find the allegation substantiated. Ms Hutchison's response to the show cause notice accepted the conduct alleged and there is no doubt that Ms Hutchison was convicted and served three months of an 18 month sentence.
- [102]It is also not in dispute that Ms Hutchison was employed by the Respondent at the time of the conduct which forms the basis of the allegation. The issue to be considered is whether it was open to Ms Gallagher to find that Ms Hutchison's conduct constituted misconduct, that is inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service within the meaning of s 187(4)(b) of the PS Act.
The finding of misconduct
- [103]Ms Gallagher's decision found that the offence committed by Ms Hutchison was 'extremely serious'. Specifically, Ms Gallagher found that 'the public expects that all public servants, and in particular staff within a health service…will act with honesty and integrity' and that 'this level of dishonesty…is clearly incompatible with the expected standards of a public service employee, and with the duties and responsibilities of your position with the Health Service.'
- [104]Ms Gallagher's decision also makes reference to public reporting of the matter and that Ms Hutchison's employment with the Respondent was raised at the hearing of the matter.
- [105]Ms Hutchison argues that her employment became known during the hearing due to the provision of a reference from her line manager. She further submits that the reporting of the behaviour by the media was a matter out of her control.
- [106]With regard to Ms Hutchison's submissions regarding her human right to a fair and public hearing pursuant to s 32 of the HR Act. It is not in dispute that Ms Hutchison had this right. I can see no evidence in the decision letter nor in the submissions that the Respondent has taken a position that Ms Smith should not have provided a character reference to Ms Hutchison for the purposes of the hearing.
- [107]I understand that the point being made by Ms Hutchison is that her employment with the public service would not have come to the attention of the media had she not used the reference as part of her defence and had the media not been in the room.
- [108]I agree that this may be the case, however the description of misconduct in a private capacity does not include only misconduct publicised by the media.
- [109]Section 187(4)(b) of the PS Act describes conduct that reflects seriously and adversely on the public service. There is nothing in the meaning listed in the PS Act that required that the conduct has been published or is widely known. It is not necessarily the publicising of the conduct that is the problem, it is the fact of the conduct itself. It is enough that the nature of the conduct is such that it reflects seriously and adversely on the public service. Once a relevant person, in this case Ms Gallagher, becomes aware of the behaviour and forms a concern that it is misconduct, it is incumbent upon them to commence the process under the Directive or E10, even if they are the only person who is aware of the allegation.
- [110]There will be cases where a public servant is asked to show cause as to why a substantiated allegation does not meet the definition of misconduct under s 187(4)(b) and there has been no publicity associated with their conduct. In this case, prior to the media reporting of the matter, it was no secret to the Respondent that Ms Hutchison had been found guilty and served a prison sentence. The Respondent was informed of the charges, Ms Hutchison's line manager provided her with a reference and Ms Hutchison's lawyer contacted the Respondent to let them know that Ms Hutchison had been taken into custody immediately following the hearing.
- [111]It is a fact that the matter was reported in the media and that Ms Hutchison's employment with the Respondent was discussed during the hearing. Ms Gallagher makes reference to the media reporting and the transcript of the hearing in her decision by way of highlighting that the conduct has become public knowledge. However, I cannot accept Ms Hutchison's contention that the disciplinary finding was made in reliance of what flowed from her exercise of her human rights to a fair and public hearing. The disciplinary finding flowed from Ms Hutchison's conduct subject of the allegation in the show cause letter.
- [112]With regard to Ms Hutchison's submission that the Respondent's reference to the transcript of her hearing was unfair or offends her human rights, I would note that the right to a fair hearing involves 'the right to have the charge or proceeding decided by a competent, independent and impartial court or tribunal after a fair and public hearing'[11] and that 'all judgements or decisions made by a court or tribunal in a proceeding must be publicly available'.[12] I cannot see that there is anything improper about Ms Gallagher informing herself about Ms Hutchison's conduct by accessing a publicly available document. Ms Gallagher had no more or less access to the court proceedings than any other member of the public, including the media.
- [113]While I note that the media reporting of the matter was a part of the material considered by Ms Gallagher and contributed to her conclusions that this was conduct that reflects seriously and adversely on the public service, I do not accept that the 'real motivating factor' for the commencement of the disciplinary process was that Ms Hutchison's criminal conduct was made public.
- [114]Public servants may engage in less than ideal conduct in their private capacity but that conduct could not be considered to 'reflect seriously and adversely on the public service'. In this case, Ms Gallagher has determined that the issues of trust and honesty relevant to Ms Hutchison's conduct was such that it reflected seriously and adversely on the public service. In doing so, she also had reference to the detail of the conduct and the duties and responsibilities of Ms Gallagher's role.
- [115]It was fair and reasonable for Ms Gallagher to determine that Ms Hutchison was guilty of misconduct pursuant to s 187(4)(b).
Extra-Curial Punishment
- [116]With regard to Ms Hutchison's submissions regarding the 'loss of right to a proper defence due to extra-curial punishment', I cannot accept the submission that the 'disciplinary process has in effect robbed Ms Hutchison of the opportunity to plead during the trial, the mitigating circumstance that the sentencing could lead to the termination of her employment'. Ms Hutchison was an experienced public servant who would have completed Code of Conduct training on a regular basis and who, as a nursing professional, would have regular responsibilities to keep up her credentialling or registration.
- [117]The Code of Conduct addresses personal conduct under Principle 1: Integrity and impartiality. Relevantly:
1.5 Demonstrate a high standard of workplace behaviour and personal conduct
…
- d.ensure our private conduct maintains the integrity of the public service and our ability to perform our duties, and
- e.comply with legislative and/or policy obligations to report employee criminal charges and convictions.
- [118]Ms Hutchison would have been well aware that her behaviour in a private capacity may result in an allegation of behaviour that does not reflect the Code of Conduct.[13] It was open to Ms Hutchison to plead the possible impact on her employment as a mitigating circumstance during the hearing and the sentencing process. Ms Hutchison knew that her employer required her to report employee criminal charges and convictions.
- [119]Further, the transcript of proceedings indicates that Magistrate Pinder was aware of Ms Hutchison's employment with the Respondent and noted that her character references note she is a person who is highly regarded in her profession. Ms Hutchison's profession was discussed in the hearing. It was open to Ms Hutchison's representative to make submissions regarding the potential for disciplinary action under the PS Act and Code of Conduct.
- [120]I have no doubt that Ms Hutchison continues to suffer the consequences of her actions well beyond the serving of a custodial sentence. A public service disciplinary process is one of the possible consequences for a public servant who commits a criminal offence, or in fact, simply behaves in a private capacity in an 'inappropriate or improper way'. It seems trite to say, but the only way for Ms Hutchison to have avoided the consequences of her conduct would have been to not commit the crime in the first place.
- [121]In circumstances where the show cause process has been undertaken in accordance with the relevant legislation and Directive and Ms Hutchison has exercised her right to appeal by way of the current matter before me, I am unable to agree with Ms Hutchison's submission that the 'respondent formulating any and all decisions on the basis of Ms Hutchison exercising her rights, renders her unequal under the law and not 'entitled to equal protection of the law without discrimination' pursuant to s 15(3) of the HR Act. The decision was not undertaken in response to Ms Hutchison exercising her rights. The decision was undertaken in response to Ms Hutchison's criminal conduct.
Section 34 HR Act: the right not to be punished more than once
- [122]Ms Hutchison was convicted for her criminal conduct. I agree that pursuant to s 34 of the HR Act, she has a right not to be punished more than once for the same crime. But to suggest that a public service disciplinary process is an attempt to try or punish Ms Hutchison a second time for the same offence is misguided.
- [123]
It is clear from the above authorities that the purpose of the disciplinary regime under the PS Act is protective, not punitive. In other words, the regime under Chapter 6 of the PS Act is intended to protect the public, maintain proper standards of conduct by public service employees and protect the reputation of the public service.[16]
- [124]Ms Hutchison has been asked to show cause why she should not be disciplined in relation to a finding of misconduct under the PS Act. The allegation relates to the conduct she was tried and punished for in the criminal matter but it is founded on the basis that the behaviour 'reflects seriously and adversely on the public service'. The disciplinary process as established by the PS Act and the accompanying directive and other policies exists to maintain the integrity of the public service.[17]
Proper Consideration of Human Rights - adequacy of reasons for decision provided to Ms Hutchison
- [125]It is not in dispute that Ms Gallagher was required to give proper consideration to Ms Hutchison's human rights in making the decision on disciplinary grounds. The submission is that Ms Gallagher did not demonstrate that she had taken Ms Hutchison's human rights into account or give proper consideration to human rights in her written reasons.
- [126]Ms Gallagher's letter stated
I confirm that upon considering the appropriate disciplinary action to propose, I have given consideration to the relevant sections of the Human Rights Act 2019 (Qld) and the Public Service Commission Discipline Directive (14/20).
- [127]
(1) It is unlawful for a public entity –
- (a)to act or make a decision that is not compatible with human rights; or
- (b)in making a decision to fail to give proper consideration to a human right relevant to the decision.
…
- (5)For subsection (1) (b), giving proper consideration to a human right in making a decision includes, but is not limited to –
- (a)identifying the human rights that may be affected by the decision; and
- (b)considering whether the decision would be compatible with human rights.
- [128]The obligations on decision makers are commonly described as both substantive and procedural. The substantive obligation is that set out at s 58(1)(a) and the procedural obligation at s 58(1)(b).[19]
- [129]The requirement for a decision maker to give proper consideration to human rights is also stated at cl 4.5 of Directive.
Under the Human Rights Act 2019 a decision maker has an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.
- [130]Further, Queensland Health Policy E10 (QH-POL-124) states at clause 1 under the heading 'Discipline in Queensland Health':
A decision maker has an obligation under the Human Rights Act to act and make decisions in a way that is compatible with human rights. When making a decision under this policy, the delegate is to give proper consideration to human rights.
- [131]'Proper consideration' is not clearly defined in the HR Act or the Directive. However, the test for proper consideration has been considered in relation to s 38 of the Charter of Human Rights and Responsibilities Act 2006 (Vic) which contains a provision similar to s 58(1) of the Qld HR Act stating that it is unlawful for a public authority in making a decision, to fail to give proper consideration to a relevant human right.[20] Castles v Secretary of the Department of Justice [2010] VSC 310 states that proper consideration involves:
understanding in general terms which of the rights of the person affected by the decision may be relevant and whether, and if so how, those rights will be interfered with by the decision that is made. As part of the exercise of the justification, proper consideration will involve balancing competing private and public interests. There is no formula for such an exercise and it should not be scrutinised over-zealously by the courts.
While I accept that the requirement in s 38(1) to give proper consideration to a relevant human right requires a decision-maker to do more than merely invoke the Charter like a mantra, it will be sufficient in most circumstances that there is some evidence that shows the decision-maker seriously turned his or her mind to the possible impact of the decision on a person's human rights and the implications thereof for the affected person, and that the countervailing interests or obligations were identified.[21]
- [132]It is clear that the simple inclusion in a decision of a sentence to the effect that 'human rights have been taken into consideration' does not provide the person affected by the decision with any useful information. However, I do not think that it is necessary that a decision maker write in great detail about the consideration of human rights undertaken in relation to decisions being made.
- [133]If the decision maker comes to the conclusion that the human rights of the employee are not interfered with as a result of the decision, the inclusion of a statement to this effect may provide some confirmation to the employee that 'proper consideration' has occurred. Indeed, it would only be proper for the decision maker to include such a statement if they had properly considered the employee's human rights.
- [134]The Respondent has argued that in the event that it has acted to limit Ms Hutchison's human rights, this 'was reasonably and demonstrably justifiable pursuant to section 13 of the HR Act'. I note that this was a submission made in reply for these proceedings and not the position of the decision maker in the decision of 24 June 2021.
- [135]If the decision maker determines that human rights have been limited but that this is permissible under s 13 HRA, it is necessary to explain this reasoning to the employee. Likewise, it may be the case that the decision maker decides that s 58(2) of the HR Act is relevant and that:
Subsection (1) does not apply to a public entity if the entity could not reasonably have acted differently or made a different decision because of the statutory provision, a law of the Commonwealth or another State or otherwise.
However, in such a case, 'proper consideration' would involve explaining this to the affected employee.
- [136]The HR Act and the relevant Directive and policy places the obligation on the decision maker to give proper consideration to human rights. However, it is also open to an employee responding to a show cause notice to bring to the decision maker's attention any information regarding the specific human rights that the employee believes are relevant and should be taken into account by the decision maker.
- [137]With regard to the statement included in the letter and set out at [126], one may infer that Ms Gallagher gave consideration to the relevant sections of the HR Act and determined that they had no impact on the decision. However, it is unclear if this is the case. Additionally, the statement refers only to the consideration of human rights with regard to the proposed disciplinary action. This leaves the reader to infer that in order to come to the proposed disciplinary action, human rights were properly considered in first establishing the ground for discipline.
- [138]It may be that Ms Gallagher should have provided more detail about the proper consideration of human rights undertaken in making the decision. However, there is no evidence before me to suggest that Ms Gallagher did not consider Ms Hutchison's human rights in making the decision. I have given consideration to all of the material before me, including the submissions of Ms Hutchison with regard to her human rights. I cannot find that any of the factors raised can serve to interfere with the finding that the allegation was substantiated and that grounds for discipline were established. When considering all of the facts in this matter, I cannot find that Ms Gallagher's statement regarding consideration of human rights serves to make the decision unreasonable. Given this, I see no utility in returning this decision to the decision maker to undertake the exercise of reissuing it with an expanded explanation regarding the consideration of human rights.
Conclusion
- [139]The reasons that were provided as an attachment to the letter of 24 June 2021 were extensive and provided adequate detail for Ms Hutchison to understand how the disciplinary finding decision was made and what information was taken into account. The conduct subject of the allegation was not denied by Ms Hutchison and
Ms Gallagher's decision that finding the conduct was misconduct was reasonably justified.[22]
- [140]Ms Hutchison will be able to put forward arguments raised in her submissions for this matter that the criminal conduct was not of a nature that should lead to her dismissal when she answers the second show cause letter. I imagine that the response to the second show cause letter will also highlight Ms Hutchison's exemplary work history, her deep professional knowledge and capacity to make an ongoing contribution to the Respondent as evidenced in the professional reference provided to her by her immediate supervisor.
- [141]The decision of 24 June 2021 is confirmed.
Footnotes
[1] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[209] as cited in Fenner v State of Queensland (Queensland Police Service) [2021] QIRC 300.
[2] Paragraph 15, Statement of Reasons Attachment A to letter of 24 June 2021.
[3] Penalties and Sentences Act 1992 (Qld), s 9(1)(a).
[4] Ibid s 9(1)(b).
[5] Ibid s 9(2)(g)-(r).
[6] Markarian v The Queen (2005) 228 CLR 357.
[7] Markarian v The Queen (2005) 228 CLR 357; R v Wilhelm [2010] NSWSC 378.
[8] Queensland Human Rights Commission, Queensland's Human Rights Act 2019: A guide for public entities
[9] [2016] QSC 39.
[10] Respondent submissions filed 12 August 2021, attachment 2.
[11] HR Act, s 31(1).
[12] Ibid, 31(3).
[13] Code of Conduct, page 4.
[14] [2021] QIRC 255.
[15] Commissioner of Taxation v Day (2008) 236 CLR 163, [34]-[35]; Commissioner of Taxation v Futuris Corp Ltd (2008) 237 CLR 146, [55]; Bragg v Secretary, Department of Employment Education and Training (Federal) [1996] FCA 1536.
[16] Gilbert v Metro North Hospital Health Service & Ors [2021] QIRC 255, [239].
[17] The Directive, cl 4.3.
[18] Section 9 of the HR Act provides a meaning of public entity and relevantly includes (a) a government entity within the meaning of the PS Act, s 24; (b) a public service employee. The Respondent is a government entity according to s 24 of the PS Act.
[19] Explanatory Memorandum, Human Rights Bill 2018 (Qld), 34; Queensland Human Rights Commission 'Queensland's Human Rights Act 2019 A guide for public entities' page 12; Innes v Electoral Commission of Queensland & Anor (No 2) [2020] QSC 293, [261].
[20] HR Act, s 38(1).
[21] [2010] VSC 310, [185]-[186].
[22] See footnote 1.