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  4. McCarthy v State of Queensland (Queensland Health) - [2021] QIRC 379

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McCarthy v State of Queensland (Queensland Health)[2021] QIRC 379

McCarthy v State of Queensland (Queensland Health)[2021] QIRC 379

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

McCarthy v State of Queensland (Queensland Health) [2021] QIRC 379

PARTIES: 

McCarthy, Debbie

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2020/269

PROCEEDING:

Public Service Appeal – disciplinary decision

DELIVERED ON:

5 November 2021

HEARING DATE:

2 February 2021

5 March 2021 (Appellant's written submissions)

12 March 2021 (Respondent's written submissions in response)

22 March 2021 (Appellant's written submissions in reply)

MEMBER:

Hartigan IC

HEARD AT:

Brisbane

ORDERS:

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 26 October 2020 be revoked.

CATCHWORDS:

INDUSTRIAL LAW – PUBLIC SERVICE APPEAL – appeal against disciplinary – decision  made pursuant to s 187 of the Public Service Act  2008 (Qld) – where allegations substantiated – where  consideration of penalty – whether penalty is proportionate to substantiated conduct – where decision imposed is fair and reasonable – decision appealed against confirmed – stay of decision revoked

LEGISLATION:

Discipline – Directive 14/20, cl 1.1, cl 8.5, cl 8.6

Industrial Relations Act 2016 (Qld), s 562B

Public Service Act 2008 (Qld), s 187, s 188, s 194

Public Service and Other Legislation Amendment Act 2020 (Qld)

CASES:

Brandy v Human Rights and equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

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

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

Reasons for Decision

 Introduction

  1. [1]
    Ms Debbie McCarthy appeals a disciplinary decision dated 1 October 2020, made by the State of Queensland (Queensland Health) ("the Department"), which imposed a reduction in classification from Nurse Unit Manager ("NUM"), Nurse Grade 7, to Clinical Nurse, Nurse Grade 6.
  1. [2]
    Ms McCarthy is employed as a NUM at the Townsville Hospital and Health Service and has held that position since 2008.
  1. [3]
    On 24 April 2020, the Department commenced a process by putting an allegation ("allegation one") to Ms McCarthy.  In summary, allegation one alleged that Ms McCarthy had failed to manage a conflict-of-interest, being her personal interest in her daughter[1] who was employed as a Registered Nurse, and her duty to serve the public interest in her capacity as NUM emergency department on each and every occasion that Ms McCarthy became involved in and/or completed and/or approved AVAC forms and/or leave applications and/or an employee movement for her daughter and were involved in recruitment processes where she was a candidate.
  1. [4]
    Particulars were provided with respect to allegation one.
  1. [5]
    On 7 May 2020, Ms McCarthy responded to allegation one in writing.
  1. [6]
    On 22 July 2020, the Department issued a further allegation ("allegation two") to Ms McCarthy.  In summary, allegation two alleged that Ms McCarthy acted impartially and without integrity in facilitating the appointment of her daughter to a temporary 12 month 0.42FTE Registered Nurse position in the emergency department.
  1. [7]
    The Department provided particulars to allegation two.
  1. [8]
    On 5 August 2020, Ms McCarthy responded to allegation two in writing.
  1. [9]
    On 3 September 2020, the Department issued a decision with respect to allegation one and two ("the finding decision").  The decision maker determined that allegation one and allegation two were both substantiated.  Ms McCarthy was advised that on the basis that allegation one and two were substantiated, the decision maker considered that there were grounds for discipline under the Public Service Act 2008 (Qld) ("the PS Act").
  1. [10]
    Ms McCarthy was placed on notice that, in relation to the imposition of disciplinary action, the decision maker was giving serious consideration to the termination of Ms McCarthy's employment.  However, Ms McCarthy was advised that no final decision about the disciplinary action to be taken would be made until after she had been provided with an opportunity to respond.  In that same correspondence, Ms McCarthy was advised that she had a right of appeal with respect to the finding decision under the PS Act or, alternatively, that she may decide to wait until a decision has been made about the proposed disciplinary action and the appeal of both the finding and the disciplinary decisions.
  1. [11]
    On 16 September 2020, Ms McCarthy responded to the proposed disciplinary action and, in summary, submitted that whilst the substantiated allegation was not trivial, it was at the lower end of the seriousness of allegations of wrong-doing; that Ms McCarthy's overall work record, including the fact that she had no other disciplinary action what so ever, should be taken into account; that Ms McCarthy had provided an explanation with respect to her conduct which is compelling and in favour of a lesser disciplinary penalty and that there were several extenuating circumstances which had a bearing on Ms McCarthy's action.
  1. [12]
    On 1 October 2020, the Department wrote to Ms McCarthy and advised that after careful consideration of the information provided to the Department, including Ms McCarthy's response, it had determined to impose disciplinary action under s 188(1) of the PS Act and that such action was a reduction in classification from NUM to Clinical Nurse ("CN") position) and consequential changes of duties, to be effective immediately.
  1. [13]
    On 23 October 2020, Ms McCarthy filed a notice of appeal in the Industrial Registry which appeared to appeal the disciplinary decision only. 
  1. [14]
    The subject matter of the appeal is the appeal against the disciplinary decision made by Mr Kieran Keyes ("Mr Keyes"), Chief Executive of Townsville Hospital and Health Service dated 1 October 2020.
  1. [15]
    However, in the appeal notice, Ms McCarthy relied on three grounds of appeal, one of which was critical of the conclusion on evidence relied on in substantiating the allegation which was contained in the earlier disciplinary finding decision.  It could be inferred, by this ground of appeal, that Ms McCarthy sought to also appeal the disciplinary finding decision as well as the disciplinary penalty decision.
  1. [16]
    However, despite this possible inference, it was confirmed by Ms McCarthy’s representative during the course of the hearing, that Ms McCarthy only sought to appeal the disciplinary decision.[2]
  1. [17]
    By appeal notice given to the Industrial Registry on 23 October 2020, Ms McCarthy, pursuant to Ch. 7, Pt. 1 of the PS Act, appeals the disciplinary decision.  Section 197 of the PS Act provides that an appeal under Ch.7 Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the Industrial Relations Act 2016 (Qld) ("the IR Act").
  1. [18]
    On 26 October 2020, this Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the IR Act. 
  1. [19]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[3]  Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.  Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
  1. [20]
    As an IRC Member, I must decide the appeal by reviewing the decision appealed against. The word "review" has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[4]  An appeal under Ch. 7, Pt. 1 of the PS Act is not by way of re-hearing, rather, it involves a review of the decision arrived at and the decision-making process associated with it.[5]
  1. [21]
    For the reasons contained herein, I have found the decision to be fair and reasonable.

The decision

  1. [22]
    As referred to above, the decision, which is the subject of this appeal, is the disciplinary decision imposing the penalty action.[6]
  1. [23]
    The decision maker provided detailed reasons for the disciplinary decision. The reasons are referred to throughout the parties’ respective submissions.  For that reason, I will include the reasons for the disciplinary decision in full as follows:

Reasons for Decision

On 3 September 2020, I determined that there were grounds for discipline under section 186(1)(b) of the PS Act due to misconduct, and in respect of the following substantiated Allegations:

  1.    Your failure to manage a conflict of interest, being your personal interest in your daughter (Registered Nurse (RN), Emergency Department (ED), and, your duty to serve the public interest in your capacity as Nurse Unit Manager (NUM) ED, on each and every occasion that you:
  1. became involved in and/or completed and/or approved: AVAC forms and/or leave applications and/or an employee movement form for your daughter  (as per Particulars 1 to 7 in letter dated 24 April 2020): and/or
  1. were involved in recruitment processes where your daughter  was a candidate (as per Particulars 8 to 10 in letter dated 24 April 2020).
  1.    Your actions, that were partial and lacked integrity, in facilitating the appointment of your daughter to a temporary twelve-month 0.42 FTE RN position in the ED, Job Ad Reference: (JAR) TV313851, where amended TV304705 merit list was utilised.

In your response, you asked for compassion when considering this matter and that a lesser penalty be proposed. In so doing, you raised:

  • 'The part of the allegation that is substantiated, the signing of the attendance variation forms and participating in recruitment' of your daughter 'is not trivial but is at the lower end of seriousness of allegations of wrongdoing':
  • You have an excellent work record and that 'making a mistake such as those outlined are completely out of character'. You refer to 'have given 33 years of loyal and dedicated service to Queensland Health' and having had no other disciplinary actions. You state that you 'lead in every aspect of your work' and that you are 'well regarded and a resource for all streams of staff both within ED and external to the department.' You state that 'a unit such as ED needs a leader like this' due to the complex issues required to be managed whilst maintaining some of the best and most consistent KPI performance in the state and country;
  • You did not make decisions that were different for any other member of staff and you state that you 'gave examples of how (you) did the same recruitment for another staff member using the same technique';
  • You had experienced deeply personal issues over the last 18 months which had affected both your professional and personal life and for which you had endured financial and mental loss. This included supporting your daughter deal with grief which compounded your distress in 2019. You state that on reflection you were overwhelmed and needed to ask for help to assist in your role as NUM of ED, however, you felt that asking for help would be a failing. You state that you made errors but none of the concerns raised were to gain anything for yourself or your daughter.
  • That termination of your employment would have a permanent impact on your future employment, reputation and job security, and a lasting affect on your mental health;
  • Your action did not damage any patient's health or impact on staff or client's health and safety;
  • There is no impact on your ability to perform your duties in the ED as a manager and leader; and
  • Your commitment to undertake review of policies, seek counsel of your line manager, develop expected processes, undertake training and support others who may face similar personal stressors.

For the avoidance of doubt, all the allegations that have been put to you, have been substantiated. That you have not accepted this, causes me to consider whether you have accepted the gravity of your actions, and in particular, the breach of trust in your role as a leader by failing to appropriately manage the conflict of interest concerning your daughter.

In your response, you identified other recruitment processes that you suggest were similar to the process followed for your daughter . I accept that is not uncommon practice for a late application to be added to an existing recruitment process, however, where late applicants have been added to an existing recruitment process, all such applicants must be appropriately merit assessed by a panel that include at least two panel members. There is no evidence to suggest that your daughter was merit assessed by a selection panel, only that you added her to an already closed recruitment process. I consider this is the most egregious breach of trust.

You have identified several factors that you say should sway my decision from termination of your employment. These factors include a range of personal matters that you say affected your judgement in this matter, as well as your lengthy and exemplary service as a leader of a highly functioning emergency department. The personal matters you identified, together with your leadership and support for staff post the 2019 floods, have been considered in my decision.

You are correct to say that you are a highly respected leader, not only in our organisation, but across the public health sector in Queensland. In some respects, this only exacerbates the magnitude of the breach of trust placed in you. I acknowledge the length of service you have provided to the Townsville HHS. As you rightly identify, the NUM role requires leadership. However,  in addition to leadership, the responsibilities of the role include acting as a mentor and role model to registered nurses, enrolled nurses and members of a multi-disciplinary team. You are expected to set and meet the bar in respect of acceptable standards of behaviour. From the allegations that have been substantiated, in whole (not in part as you state) you have failed to both set and meet the bar.

The fact that you justify your behaviour by stating that you did not make decisions that were different for any other member of staff is a concern. As her mother, you had a conflict of interest with your daughter's interest in the workplace, that could improperly influence or be seen to influence your decisions in the performance of your public duties. Despite being live to the fact that it was necessary to manage the conflict of interest with your daughter given her employment in ED, and therefore treat her differently for the purposes of managing the conflict, you continued to approve AVACs, leave applications, and EMFs for your daughter. Further, you decided to actively participate in a recruitment process involving your daughter.

It is paramount in recruiting any employee that merit is transparently and appropriated assessed. Ensuring that meritorious person is appointed, enables the Townsville HHS to honour its legislative mandate of quality and safety in the delivery of public sector health services. As per section 28 of the PS Act, the merit principle ensures that the person who is appointed has the abilities, aptitude, skills, qualifications, knowledge, experience and personal qualities relevant to carry out the duties in question. This did not occur in your daughter's case in respect of (JAR) TV313851, where amended TV304705 merit list was utilised. Your daughter's inclusion on the merit list for TV304705, on your request, occurred without the panel for TV304705 being reconvened and without a review of your daughter's CV and references. The amended selection report for TV304705 does not include a comparative statement for your daughter indicating why she is a suitable candidate for the role, was not discussed with the other panellists, or presented for re-signing by the panellists. I do not accept your explanation that your actions were not to 'gain anything' for your daughter. You were aware that your daughter, had not been suitability assessed against TV304705, yet as a panel chair for TV313851 you referred to TV304705 (where you had arranged for your daughter  to be added to the merit list) as supporting her gaining the benefit of appointment to TV313851.

In your response, you referred to having used the same recruitment for another staff member using the same technique. I have reviewed the matters you referred to as examples in your letter of 5 August 2020, namely, the appointments of RN Bates in September 2019 and RNs Felix, Elwin and Nilsson in March 2020.

RN Bates was recruited to TV314869 by way of short selection report using merit list TV317733 (amended to include RN Bates in the Order of merit). It is noted against this amendment that RN Bates was being appointed to TV314869. It does appear that the same process was used for the appointment of RN Bates as for your daughter in TV313851 with one point of difference, and that is, amendment to merit list TV317733 was approved by the TV317733 delegate, Ms Davies on 2 October 2019 contemporaneous to her approval of the appointment of RN Bates to TV314869. By comparison, your daughter's inclusion in the amended selection report for TV304705 was not approved by the TV304705 delegate, Ms Evanson, Nursing Director.

RNs Felix, Elwin and Nilson were recruited to TV339476, TV339420 and TV312389/TV339041 respectively using merit list TV329547. The selection report for TV329547 was amended on 28 February 2020 to add the RNs as late applicants, to shortlist them as applicants with an assessment against key attributes of the role, and to add them to the order of merit. The amendment to TV329547 was approved by two original panel members (you and Ms Furlong), and there is delegate approval by Ms Evanson. Therefore, the same process was not used for these appointments as for your daughter  in TV313851.

Irrespective of whether or not the same processes were engaged in your daughter's recruitment as for RN Bates, Felix, Elwin and Nilson, or that you were not the ultimate decision maker approving the appointment, the fact remains that it was wholly inappropriate for you to have engaged in any recruitment process involving your daughter due to your conflict of interest.

You also state that Ms Davies who signed off your daughter's temporary appointment, was the NUM who employed her in ICU into a permanent RN in 2018. You state that this ICU recruitment was done without direct application being submitted to ICU and no interview. I have reviewed your daughter 's ICU appointment which occurred in March 2018, (JAR TV270647). Ms Davies was not involved in this recruitment process, however, by way of completeness, I confirm that your daughter submitted an application for the position on 29 January 2018 and was assessed by using selection techniques agreed by the panel, that is by way of written application, CV/resume referee report. A comparative statement for your daughter indicating why she was a suitable candidate for the role was undertaken, and the appointment was approved by a delegate.

I accept that extraneous personal factors may have had a bearing on your actions in the workplace, however, I do not consider that they diminish the seriousness of the substantiated allegations. In particular, your failure to manage the conflict of interest with your daughter  in defiance of an express agreement to do so, and your wilful dishonesty in procuring the benefit of your daughter's appointment to TV313851. Nevertheless, I accept that the personal factors you refer to, your lack of disciplinary history, and the length of commitment you have given to public sector health services are relevant mitigating factors when deciding an appropriate penalty to impose. Having regard to the matters above, I believe that the disciplinary action of a reduction in classification form a NUM to CN and consequential change of duties is fair, just and reasonable in the circumstances.

…

Relevant provisions of the PS Act and Directive 14/20

  1. [24]
    Section 187 of the PS Act provides for the grounds for discipline as follows:

187  Grounds for discipline

  1. (1)
    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
  1. (ea)
    contravened, without reasonable excuse, a requirement of the chief executive under section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (f)
    contravened, without reasonable excuse, a provision of this Act; or
  2. (g)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) —
  1. (a)
    a public service employee under section 187A; or
  2. (b)
    a former public service employee under section 188A .
  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee’s employment in the public service

relevant standard of conduct, for a public service employee, means—

  1. (a)
    a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  2. (b)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

  1. [25]
    Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee:

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

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

 Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
  • a reprimand
  1. (2)
    If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
  2. (3)
    However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
  3. (4)
    Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
  1. (a)
    must not be more than half of the amount payable to or for the employee in relation to the payment; and
  2. (b)
    must not reduce the amount of salary payable to the employee in relation to the period to less than—
  1. (i)
    if the employee has a dependant—the guaranteed minimum wage for each

  week of the period; or

  1. (ii)
    otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  2. (6)
    An order under subsection (1) is binding on anyone affected by it.
  1. [26]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions—

…

  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person; or
  1. [27]
    Directive 14/20: Discipline ("Directive 14/20") came into effect on 25 September 2020. The decision subject of the appeal was made after Directive 14/20 came into effect.
  1. [28]
    Clause 1.1 of Directive 14/20 states that the PS Act requires disciplinary processes to comply with the PS Act, this directive and the principles of natural justice.
  1. [29]
    The purpose of Directive 14/20 includes; to outline the process for managing disciplinary action under the PS Act, including how natural justice requirements may be met and to outline circumstances in which a contravention of s 187(1)(g) of the PS Act is likely to be considered sufficiently serious to warrant disciplinary action.[7]
  1. [30]
    Clause 8 of Directive 14/20 sets out the disciplinary process.  Clause 8.3 sets out the show cause process for a disciplinary finding, and cl 8.4 sets out the process of making a disciplinary finding.
  1. [31]
    Relevantly, cl 8.5 of Directive 14/20 sets out the show cause process for proposed disciplinary action as follows:

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).
  2. (b)
    The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.
  3. (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.
  4. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    the seriousness of the disciplinary finding
  2. (ii)
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations  
  3. (iii)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  4. (iv)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  5. (v)
    the employee’s explanation (if any)
  6. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  7. (vii)
    the impact on the employee’s ability to perform the duties of their position
  8. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  9. (ix)
    the impact a financial penalty may have on the employee
  10. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  11. (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.
  2. (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.
  3. (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. [32]
    Clause 8.6 of Directive 14/20 provides for the process with respect to making a decision on disciplinary action as follows:

8.6  Decision on disciplinary action

  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.
  2. (b)
    The chief executive must inform the employee of the decision in writing, including:
  1. (i)
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  2. (ii)
    excluding a termination decision, information that the employee may appeal the decision on disciplinary action
  3. (iii)
    for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016.
  1. (c)
    A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. (i)
    the revised disciplinary action is objectively less onerous  than the original action proposed, or
  2. (ii)
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  3. (iii)
    the employee has suggested the disciplinary action as an appropriate alternative penalty.
  1. (d)
    Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

Grounds of appeal

  1. [33]
    In her appeal notice, Ms McCarthy sets out three grounds of appeal against the disciplinary decision as follows:
  1. Appeal Ground One – the decision on penalty is unfair and unreasonable ("Appeal Ground One")
  1. (a)
    Ms McCarthy contends that allegation one was substantiated for reasons including that Ms McCarthy had acted in 'blatant disregard of the requirement to manage the conflict-of-interest' and also determined that the penalty of demotion to CN was appropriate for this reason. Ms McCarthy contends that the decision ignored or misconstrued Ms McCarthy's evidence in her 7 May 2020 response to allegation one about her awareness of the detail of the conflict-of-interest declaration. The decision ignored the fact that, when she made the decision to include her daughter as a late applicant, the 'Managing conflict of interest' document had not been prepared or signed.  Further, Ms McCarthy's submissions that she did not meet with management to discuss the detail and practical application of the 'Managing conflict of interest document', particularly given the external stressors she was suffering were ignored by the decision maker;
  1. (b)
    in the letter dated 3 September 2020, the decision maker substantiated allegation one only on the basis that Ms McCarthy did not properly manage her conflict-of-interest and excuse herself from recruitment processes involving her daughter;
  1. (c)
    the decision maker did not substantiate allegation one on the basis that Ms McCarthy did not otherwise properly apply recruitment processes for late applicants; and
  1. (d)
    the penalty is disproportionate to the severity of the allegations, as the recruitment process as described in the allegations did not depart significantly from usual processes where late applicants were added, and Ms McCarthy has satisfactorily addressed her error in not excusing herself from the recruitment process.
  1. Appeal Ground Two – the Department has not sufficiently considered relevant material ("Appeal Ground Two")
  1. (a)
    Ms McCarthy contends that the Department has not sufficiently taken into consideration her 12 years of unblemished service as NUM;
  1. (b)
    Ms McCarthy contends that the Department has not sufficiently taken into consideration her response in regard to her significant personal stressors in 2019; and
  1. (c)
    the disciplinary penalty has a permanent and ongoing detrimental impact on Ms McCarthy’s career and that her career is unlikely to ever recover from the demotion.
  1. Appeal Ground Three – the Department has not sufficiently considered relevant evidence ("Appeal Ground Three")
  1. (a)
    Ms McCarthy contends that in proposing the penalty, the Department did not consider the evidence that the delegate who signed off on the appointment for Ms McCarthy’s daughter, knew that the appointee was Ms McCarthy’s daughter and was also alive to the conflict-of-interest matter.
  1. [34]
    The Queensland Nurses Midwifery Union of Queensland ("QNMU") appeared for Ms McCarthy at the hearing of the matter and submitted that the disciplinary decision is harsh, in that a reduction of classification from NUM to CN is not merely a demotion in terms of clinical responsibilities or seniority, but a fundamental change to the nature of Ms McCarthy's relationship with her employer.  Further, the QNMU submits that there will be a significant financial implication for the demotion and notes that Ms McCarthy's salary as an NUM is $126,037 per annum.  A level 6.1 salary is $94,545 per annum.  The QNMU submits that the approximate financial loss that Ms McCarthy will incur will be approximately $30,492 per annum.  It argues that as Ms McCarthy is 51 years old, a permanent reduction to a level 6 role will result in approximately a $457,000 loss of income prior to her retirement at age 65.
  1. [35]
    In addition to the appeal grounds, Ms McCarthy also referred to the following matters in support of her appeal separately in written submissions:
  1. (a)
    the Commission may consider that the substantiation of the allegations was fair and reasonable in considering the appropriateness of the penalty;
  1. (b)
    the Short Selection Report Process used was no different than that used for recruitment of other nurses in the emergency department;
  1. (c)
    the decision maker's erroneous reference to the conflict-of-interest document;
  1. (d)
    the penalty was harsh in the circumstances; and
  1. (e)
    the disciplinary decision did not comply with cl 8.6(c) of Directive 14/20.

 Relevant background to the disciplinary decision

  1. [36]
    As noted above, Ms McCarthy's conduct, which was substantiated in the finding decision on 3 September 2020 included, in summary, as follows:
  1. (a)
    Despite a conflict-of-interest, Ms McCarthy involved herself in the management of her daughter.
  1. (b)
    Despite a conflict-of-interest, Ms McCarthy arranged for her daughter to be added to the selection process for a position as a late candidate and had her added to the "order of merit" for selection exercise for TV304705, without conducting a selection process and/or without the support or knowledge of other panel members and contrary to Policy B1.[8]
  1. (c)
    The merit list from selection exercise TV304705 was then used to have Ms McCarthy's daughter appointed through selection exercise TV313851 to a part-time position in the ED
  1. [37]
    Allegation one alleged that, Ms McCarthy failed to manage a conflict-of-interest (being her special interest in her daughter who was employed as an RN in ED) and her duty to serve the public interest in her capacity as NUM ED.  The allegation involved two categories of conduct.
  1. [38]
    The first category of conduct in allegation one related to Ms McCarthy's involvement in and/or completion and/or approval of AVAC forms and/or leave applications and/or an employee movement form for Ms McCarthy's daughter.  The particulars relied on in relation to this category of conduct included:
  1. On 1 August 2019, you signed an AVAC form relating to your daughter , in respect to a change in shift (COS) and part-time additional hours (PTX) relating to shifts from 7 August 2019 up to and inclusive of 12 August 2019.
  2. On a date unknown, you signed an AVAC form for your daughter , amongst others, relating to a casual shift undertaken on 1 August 2019.
  3. On 5 August 2019 you signed an AVAC form for your daughter , amongst others, relating to a casual shift undertaken on 2 August 2019 and also 3 August 2019.
  4. On 15 August 2019, you submitted a leave request relating to your daughter for recreational leave for the period of 4 September 2019 to 5 September 2019, and further approved the same as the delegate.
  5. On 23 September 2019, you signed an AVAC form for your daughter, amongst others, relating to a COS on 21 September 2019.
  6. On 1 October 2019, you created and submitted a leave request for your daughter , which was subsequently declined on 4 October 2019 by the Reviewer Group.  You then resubmitted the same on 8 October 2019.
  7. On 8 October 2019, you certified the permanent Employee Movement Request (EMR) in MyHR to permanently appoint your daughter to an RN role in ED relating to JAR 317733 for a fractional FTE with multiple JAR for .53FTE.
  1. [39]
    The second category of conduct in allegation one related to Ms McCarthy's involvement in recruitment processes where her daughter was a candidate.  The particulars relied on in relation to this category of conduct included:
  1. On 1 April 2019, you signed off on a Selection Report for JAR TV 304705 (RN, Permanent – 0.84 FTE position) that referred to and listed your daughter as a late application and placing 13th position on the Order of Merit list.
  2. On 25 June 0219, you signed off on a Selection Report – Base Grade Appointment for JAR 313851 (RN, temporary part time 0.42 FTE) and two Referee Reports in which your daughter was listed in the first position in the Order of Merit.
  3. On 1 August 2019, your daughter submitted an application for the permanent role of RN, Townsville HHS, ED, (TV 317733). The outcome of that recruitment process resulted in an order of merit that was subsequently used to fill positions relating to TV 313864, TV 316283, TV 321417 and TV 320983. You drafted and circulated interview questions for the recruitment despite not being on the recruitment panel and your daughter being an applicant. You also updated the Selection Report for JAR 317733 (on which your daughter was shortlisted) to add two late application on 30 September 2019. Your daughter was subsequently offered a permanent 0.53 FTE position from 7 October 2019. 
  1. [40]
    Allegation two alleged that Ms McCarthy acted partially and without integrity in facilitating the appointment of her daughter to a temporary 12-month 0.42 FTE RN position in the ED, Job Ad Reference: (JAR) TV313851, where amended TV304705 merit list was utilised.
  1. [41]
    The particulars relied on in support of allegation two included the following:
  1. The Department of Health Human Resources Policy B1 – (QH – POL – 212) Recruitment and Selection (HR Policy B1) sets out the mandatory requirements for recruitment and selection specific to Townsville HHS vacancies in addition to the Public Service Commission Directive 15/13 (PSC Directive 15/13).
  2. Clauses 8.1, 8.3, 9, 10.4, 10.5 and 12.1 of HR policy B1.
  3. Ms McCarthy was panel chair to the recruitment process for JAW TV304705, an RC Permanent – 8.84 FTE position.  The other panel members were Leanne Windsor, NUM, and Teneeka Plumbridge, CN.  The Selection Report notes that there were 'NIL' late applicants, and 17 applicants were shortlisted.  The Selection Report contained an assessment of the 17 shortlisted applicants against key attributes and referred to the selection strategies as including:  written application to me;  curriculum vitae ("CV");  referee report;  an interview.  It listed 12 meritorious applicants as suitable for appointment.  The Selection Report was signed by the panel members on 1 April 2019 and approved by Tracy Evanson, as delegate on 8 April 2019.
  4. On or about 11 June 2019, you completed a Request to Hire (RTH) in Springboard for a RN, temporary part-time 0.42 FTE position.  Ms McCarthy specified that the role was not to be advertised and was an appointment from the order of merit from JAR TV304705.  The RTH noted Ms McCarthy as panel chair and identified as McCarthy is being trained in conducting recruitment and selection activities.
  5. Pursuant to HR Policy B1, as panel chair you were responsible for leading the selection process in an open and transparent way in accordance with policy and legislation.  You have undertaken the mandatory course of Ethics, Integrity and Accountability appropriate to employment with Townsville HHS.
  6. On 20 June 2109, Ms McCarthy telephoned Recruitment and requested that Ms McCarthy's daughter  be added as a late applicant and also to the order of merit for JAR TV304705.  You also emailed TSV-Onboarding attaching a CV and letter of Ms McCarthy's daughter.
  7. The Selection Report for TV304705 approved by the Delegate on 8 April 2019 was subsequently amended by adding Ms McCarthy's daughter  as a late applicant, application noted as received on 20 June 2019.  Ms McCarthy's daughter  was also added to the order of merit at position 13.  Ms Gayle Mullen, Workforce Administration Office, MSG, confirmed that she made these amendments upon your request.
  8. Contrary to the requirements of HR Policy B1 and PSC Directive 15/13, this occurred without:
  1. Ms McCarthy reconvening the panel involved in selection against TV304705 to assess her daughter  as a late applicant and undertake a merit assessment (including by way of interview) of her daughter  in respect of TV304705;
  2. any moderation by the panel to support supplementing the existing order of merit with Ms McCarthy's daughter as an additional meritorious candidate;
  3. any comparative statement clearly describing the specific reasons why the applicant listed at position 12 in the order of merit was considered to be more meritorious then Ms McCarthy's daughter ;
  4.  Ms McCarthy obtaining further approval from the Delegate in TV304705;
  5. Ms McCarthy declaring a potential conflict of interest/prior knowledge of her daughter; and/or
  6. Ms McCarthy excusing herself from the panel to avoid any perceived conflict of interest.
    1. On 25 June 2019, Ms McCarthy requested Ms Windsor to provide a referee report from her daughter, and to sign some recruitment documents in respect of JAR TV313851 (RN, temporary Part-Time 0.42 FTE position).  Ms McCarthy presented Ms Windsor with a Short Selection report which indicated that Ms McCarthy's daughter was the recommended applicant.  Ms McCarthy told Ms Windsor that she had pulled her daughter  from one of her merit lists.  You did not inform Ms Windsor that the merit list which was relied on had been amended without going through the appropriate processes.
    2. On 5 July 2019, the Delegate approved the Selection report which recommended Ms McCarthy's daughter  for appointment.  However, the Delegate's approval of Ms McCarthy's daughter 's appointment was made on the basis that the appropriate recruitment processes had been undertaken in line with HR Policy B1 and PSC Directive 15/13.  Ms McCarthy was aware that this was not the case – as per paragraph [10] above, however Ms McCarthy did not draw this to the Delegate's attention which resulted in the Delegate accepting Ms McCarthy's recommendation that Ms McCarthy's daughter  was meritorious for appointment to JAR TV313851.
    3. On 5 July2019, the Selection report and supporting documents for JAR TV313851 was submitted to Onboarding.  Ms McCarthy and Ms Windsor were noted as panel members and signed the Selection report on 25 June 2019.  In respect of 'advertising details', the report referred to 'External EOI' and 'TV304705 (merit).  In respect of 'selection techniques', the report confirmed that 'an assessment' was conducted.
    4. On 7 August 2019, Ms McCarthy's daughter  was offered a temporary contract and progressed from a casual to a temporary position for the period 7 August 2019 until 9 August 2020 relevant to TV313851 where amended merit list T304705 was utilised.

Clarification of decision being appealed

  1. [42]
    During the course of the hearing of the appeal, Ms McCarthy also argued that there should be consideration of whether the substantiation of the allegations was fair and reasonable when considering the appropriateness of the penalty.  That is, whether the finding decision was fair and reasonable.
  1. [43]
    Ms McCarthy argued that, whilst the appeal is with respect to the proposed disciplinary action, as contained in the disciplinary decision, rather than the substantiation of the allegations as contained in the finding decision, that does not mean that the Commission should not turn its attention to the evidence considered by the decision maker in substantiating the allegations, insofar as the decision maker on discipline had regard to that evidence again, and where the decision to substantiate the allegations was not fair and reasonable.  Ms McCarthy argued that this had the potential to infect the disciplinary decision.
  1. [44]
    Ms McCarthy submitted that the Commission is entitled to consider whether the substantiation of the allegations was also fair and reasonable when the decision to impose the penalty was based on an incorrect understanding of the facts and evidence regarding, in particular, allegation two.
  1. [45]
    Ms McCarthy contends that the Commission is required to determine the fairness of the disciplinary decision having regard to the matters that the decision maker referred to in his decision.  Ms McCarthy further contends that where those matters include a re-examination or reflection on the details of the decision to substantiate allegations, or reference to evidentiary factors that are being relied on in support of the disciplinary decision, it is open to the Commission to also examine those details and factors in determining whether the penalty was fair and reasonable.  Ms McCarthy submits that the fact that an appeal is against the penalty alone, does not mean that the question of whether the decision to substantiate the allegations is objectively fair and reasonable and should not form part of the review.
  1. [46]
    In response, the Department submits that the appeal is an appeal against the disciplinary decision dated 1 October 2020, and that the grounds of appeal relate solely to the decision making relevant to the imposition of the penalty.
  1. [47]
    The Department submits that, as argued in the hearing, the findings in this matter must be considered "sacrosanct" and cannot be challenged or undermined as part of the appeal.  The Department further submits that the appeal must be limited to challenging the penalty in circumstances where the findings are conclusive of the conduct to which the penalty is to be applied.  The findings, and by extension, the evidence relied upon in reaching those findings are to be considered "irrefutable" in this appeal.
  1. [48]
    The Department points to the fact that Ms McCarthy had "every opportunity" to appeal the findings either at the time they were made or subsequently.  She did not do that, but rather, appealed only the severity of the penalty and this is the only case which the Department must be required to answer.
  1. [49]
    The Department submits that where Ms McCarthy has challenged evidence as part of the show cause process and where those challenges have not been accepted in making the findings, those matters must be treated by the parties as settled in accordance with the findings in this appeal process.
  1. [50]
    I accept in an appeal of a disciplinary decision, regard may be had to the decision substantiating an allegation, insofar as that decision may be relevant as it provides the basis for the finding that substantiates the alleged conduct.  However, in circumstances where such a finding decision has not been appealed, it is not appropriate to seek, reargue or to attack a finding decision in an appeal of a disciplinary decision.
  1. [51]
    I further accept, as argued in this matter by Ms McCarthy, that it may be reasonable to consider the reasons of the finding decision in circumstances where the disciplinary decision refers to such reasons and mischaracterises or misunderstands the reasons, or the factual basis for the findings.  I do not accept however, that a review of the finding decision should be undertaken to determine if it was fair and reasonable when that decision is not the subject of the appeal.
  1. [52]
    Ms McCarthy is bound by the terms of the appeal.  The appeal solely relates to the disciplinary decision.  At no time did Ms McCarthy seek to amend the Appeal Notice to include the finding decision.  During the course of the hearing, it was confirmed by Ms McCarthy's representatives that Ms McCarthy only sought to appeal the disciplinary decision.
  1. [53]
    However, as noted above, Ms McCarthy may not be precluded from referring to the finding decision to the extent that decision is relevant to the reasoning adopted in the disciplinary decision.
  1. [54]
    The difficulty in this matter is that Ms McCarthy does not seek to refer to the finding decision on that basis, but rather, she seeks to reargue or attack the findings on evidence contained in the finding decision.  As is evident below, Ms McCarthy does not appear to accept the findings on fact or the ultimate determination in the finding decision.

Did the disciplinary decision mischaracterise and/or misunderstand the evidence in the finding decision?

  1. [55]
    Ms McCarthy submits that Mr Keyes, in making the disciplinary decision, considered certain evidence again, and in doing so, he mischaracterised or misunderstood that evidence.  Ms McCarthy submits that an assessment of the evidence considered by Mr Keyes in the disciplinary decision demonstrates that the findings in the passages (below), were not fair and reasonable.
  1. [56]
    Ms McCarthy relies on the following passages in support of her submission:
  1. the penalty decision states (at p 3, para 3), "[Ms McCarthy’s daughter’s] inclusion on the merit list for TV304705, on your request, occurred without a review of [Ms McCarthy’s daughter’s] CV and references.  The amended selection report … does not include a comparative statement … was not discussed with other panellists or presented for re-signing by the panellists";
  2. the penalty decision also states, "there is no evidence to suggest that [Ms McCarthy’s daughter] was merit assessed by a selection panel, only that you added her to an already closed recruitment process"; and
  3. the penalty decision also states that [Ms McCarthy’s daughter’s] inclusion on the amended selection report was not approved by the delegate.
  1. [57]
    Ms McCarthy contends her evidence was that the Short Selection Report for JAR313851 was the document that operated to add her daughter to the larger, original Selection Report list for TV304705.  Ms McCarthy argues that the Short Selection Report was a legitimate way to add an applicant to a merit list, as it included a comparative statement, referee reports and a CV check.  Ms Windsor, Ms Evanson, Ms Plumridge and Mr Keyes all knew that the Short Selection Report was used for this purpose.
  1. [58]
    Ms McCarthy further contends that Mr Keyes' finding misunderstood her evidence that the Short Selection Report was used to amend the original selection report for JAR304705.  Ms McCarthy refers to her earlier statement in her response to allegation two, "the process is used to add suitably qualified staff to a current open merit list after agreement with one or more members of the [recruitment] panel.  This can be a face-to-face discussion, a phone call or an email.  I have done this on a number of occasions and most regularly with Ms Leanne Windsor".
  1. [59]
    Ms McCarthy contends the Department's misunderstanding colours the whole of the Respondent's belief that Ms McCarthy acted differently than she would have for any other staff member, in adding her daughter as a late applicant to an existing merit list. Ms McCarthy submits that this belief was crucial to the Department's decision to impose a penalty of such severity.
  1. [60]
    The difficulty with this submission made by Ms McCarthy is that it seeks to revisit the findings on the evidence contained in the finding decision.
  1. [61]
    Ms McCarthy's submissions largely reflects the matters she put forward in her show cause response.  These matters have previously been considered during the course of the show cause process and in making the finding decision.
  1. [62]
    Ms McCarthy argues that the decision maker misunderstood her evidence that, the Short Selection Report was used to amend the original selection report for JAR304705.  I do not consider that the decision maker misunderstood the evidence, rather he preferred  evidence, other than Ms McCarthy's evidence,  including from the other members of the selection panel and drew conclusions from that evidence, which was adverse to
    Ms McCarthy.  I do not consider that the disciplinary decision misunderstood or mischaracterised the evidence in the finding decision.

Short Selection Report processes are no different than that used for recruitment of other nurses in ED

  1. [63]
    Ms McCarthy submits that in the disciplinary decision, Mr Keyes reviewed the evidence regarding the processes used to recruit RN Bates, Felix, Elwiwill and Nilson ("the other RNs").  Ms McCarthy submits that this matter was an evidentiary factor that was relied on in support of the disciplinary decision.  Ms McCarthy argues that the review of the evidence should have confirmed that the process for the other RNs was in fact the same as for Ms McCarthy's daughter.
  1. [64]
    Ms McCarthy further submits that it was unfair of Mr Keyes to consider these other processes, as evidence of these processes has not been raised previously, including in the letter substantiating the allegations.  This submission is somewhat surprising given Mr Keyes' consideration of these other recruitment processes occurred in direct response to Ms McCarthy's submissions about them.  Mr Keyes considers those processes to the extent they were referred to and relied on by Ms McCarthy in her response.  In those circumstances, I do not consider that it was improper for the decision maker to consider the process used for the recruitment of other RNs.
  1. [65]
    Ms McCarthy further argues that in the disciplinary decision, Mr Keyes agreed that the same process used for the appointment of the other RNs was used for Ms McCarthy's daughter, with " … one point of difference" being, he said, that in Ms Bates' case, but not Ms McCarthy's daughter's case, the Short Selection Report form amending the original Selection Report was approved by the delegate.
  1. [66]
    Ms McCarthy contends that on review of the evidence around the process for the other RNs, the only reasonable conclusion could be that in fact, in the case of her daughter, the delegate did in fact sign the Short Selection Report form.  Ms McCarthy's submissions in this regard do not address the findings of the finding decision, namely, that Ms McCarthy's daughter was added to the selection process upon Ms McCarthy's request to Ms Mullen to add her as a late applicant and to place her on the order of merit list.[9]  This process did not occur for the other recruitment processes Ms McCarthy referred to in her submissions.  It is apparent on the material, that the same process was not adopted in the circumstances of Ms McCarthy's daughter.

Conflict of interest document

  1. [67]
    Ms McCarthy contends that the August 2019 managing conflict-of-interest agreement, which is the only document that explicitly prohibits Ms McCarthy from involvement in recruitment and appointment processes for her daughter, was created following the allegations against her.  Ms McCarthy submits it was not fair and reasonable for the decision maker to impose a disciplinary penalty that flows from the substantiation of an allegation where the material used to substantiate the allegation was not in existence at the time the alleged conduct occurred.
  1. [68]
    Mr Keyes does not specifically refer to the August 2019 managing conflict-of-interest agreement in the disciplinary decision.  However, when asked at the hearing of the matter what consideration he had to the document, he stated that he was aware that some of the actions [contained in the allegations] took place after it was signed.[10]
  1. [69]
    Mr Keyes further explained his reasoning as follows:

So in my view, both documents reflect a recognition on behalf of Ms McCarthy that a conflict existed. I also took the view that the conflict and the duty to manage the conflict existed the moment it arose and not at the declaration of the conflict on the form. But I certainly took the view that the declaration both times represented a recognition of the conflict and the steps Ms McCarthy should take to manage the conflict.[11]

  1. [70]
    I consider that on the evidence, it was open to Mr Keyes to conclude that the conflict-of-interest, and the duty to manage it, arose from the point in time that the conflict arose, rather than when Ms McCarthy signed some form of conflict-of-interest form.
  1. [71]
    Further, whilst the August 2019 managing conflict-of-interest agreement was signed by Ms McCarthy after she had engaged in some of the conduct relied on in support of allegation one, there was further conduct in September and October 2019 that was included in the particulars and relied on in substantiating allegation one, following Ms McCarthy signing that agreement.
  1. [72]
    I further note that, prior to any of the conduct relied on in support of allegation one occurring, Ms McCarthy had signed a Declaration of Interest form with respect to her daughter on 20 February 2018.[12]  Accordingly, it is clear that these documents were, to varying extents, relevant to the allegations.
  1. [73]
    In addition to these documents, a number of other matters were relied on by the decision maker to substantiate the allegations in the finding decision.
  1. [74]
    I do not consider that any error was made in the finding decision, insofar as it referred to the Declaration of Interest form and the August 2019 managing conflict-of-interest agreement, both signed by Ms McCarthy, so as to render the disciplinary decision not fair or reasonable.

Appeal Ground One

  1. [75]
    Ms McCarthy contends, with respect to allegation one, that the decision maker did not take into account that the August 2019 managing conflict-of-interest agreement had not been signed by her at the time she made the decision to add her daughter as a late applicant to the recruitment process.
  1. [76]
    As noted above, the decision maker did have regard to these matters and to the timing of when both the conflict-of-interest declaration was made (on 20 February 2018) and when the August 2019 managing conflict-of-interest agreement was signed.  Tellingly, the decision maker also had regard to the factual circumstances of the matter, which included a real (rather than perceived) conflict-of-interest arising from Ms McCarthy's participation in the matters listed in the particulars to allegation one, including at the time she decided to add her daughter as a late applicant to the recruitment process.
  1. [77]
    Appeal Ground One does not support a conclusion that the decision was not fair and reasonable.

Appeal Ground Two

  1. [78]
    Appeal Ground Two contends that the decision maker did not have proper regard to Ms McCarthy's length of service, her personal circumstances and the potential impact the proposed demotion may have on her career. 
  1. [79]
    The decision maker placed Ms McCarthy on notice in the finding decision that serious consideration was being given to the termination of her employment, following the substantiation of the allegations.  Ms McCarthy responded to this in written correspondence and relied on her personal circumstances to argue that her employment should not be terminated.
  1. [80]
    It is apparent that the decision maker did have proper regard to Ms McCarthy's personal circumstances.  This is clear from the reasons for the disciplinary decision, which consider those personal circumstances and, further, from the determination to reduce Ms McCarthy's classification (a demotion), rather than to terminate her employment.
  1. [81]
    Ms McCarthy contends, that a demotion, together with the consequential reduction in income and reduction in her responsibilities and duties is harsh in the circumstances of this matter.
  1. [82]
    The difficulty with accepting Ms McCarthy's submission is that it does not address the seriousness of her conduct which forms the basis for the disciplinary action.  Ultimately, I consider the decision maker, in determining to reduce Ms McCarthy's classification, struck a balance between taking into account the seriousness of Ms McCarthy's conduct and her personal circumstances.
  1. [83]
    Further, I note that there is no time period imposed with respect to the length of time that Ms McCarthy be demoted from NUM to CN.  From a practical perspective, Ms McCarthy is not precluded from applying for a higher classification position at any time in the future.
  1. [84]
    Accordingly, I do not consider that the proposed disciplinary action was harsh in the circumstances of this matter.

Appeal Ground Three

  1. [85]
    Ms McCarthy contends that, in proposing the penalty, the decision maker did not consider the evidence that the delegate who signed off on the appointment of Ms McCarthy's daughter, knew that she was in fact, Ms McCarthy's daughter.
  1. [86]
    This ground was not expanded upon at the hearing of the matter, or in written submissions.
  1. [87]
    The evidence that was accepted by the decision maker included the following:
  1. (a)
    that Ms McCarthy requested that Ms Mullen add her daughter to the process as a late applicant and add her to the order of merit, which resulted in her daughter not being subjected to the same recruitment processes as the other 12 applicants who were placed in an order of merit; and
  1. (b)
    the addition of Ms McCarthy's daughter to the Short Selection Report was performed without the approval of the delegate and the selection panel.
  1. [88]
    The addition of Ms McCarthy's daughter to the Short Selection Report and the merit list, without advising the delegate or the panel of the addition, led them, or at least, was open to lead them to the conclusion that Ms McCarthy's daughter was on the merit list as a result of being subject to the same process as the other applicants.
  1. [89]
    There was no wrongdoing on behalf of the delegate or other panel members who signed off on Ms McCarthy's daughter's appointment.  Ms McCarthy, as a senior employee with many years' experience is responsible for her own conduct with respect to her involvement in the recruitment processes associated with her daughter.  What others may or may not have known about Ms McCarthy's conduct is not only speculation, but, on the material before me, irrelevant.

Non-compliance with Directive 14/20

  1. [90]
    Ms McCarthy contends that the disciplinary decision did not comply with cl 8.6(c) of Directive 14/20.  Clause 8.6(c) relevantly provides as follows:

8.6  Decision on disciplinary action

 …

  1. (c)
    A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. (i)
    the revised disciplinary action is objectively less onerous  than the original action proposed, or
  2. (ii)
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  3. (iii)
    the employee has suggested the disciplinary action as an appropriate alternative penalty.

…

  1. [91]
    Ms McCarthy makes the somewhat surprising submission that a demotion in classification level is not an objectively less onerous disciplinary action than the proposed termination of her employment.
  1. [92]
    It is trite to note that had Ms McCarthy's employment been terminated, her service with the Department would cease, and she would be subjected to the uncertainties of the open employment market.  A demotion provides for the continuity of Ms McCarthy's employment, together with an ability to continue to accrue all relevant entitlements associated with her employment.  Further, it provides Ms McCarthy with the benefit of ongoing employment security and the ability to work within her chosen profession.
  1. [93]
    I do not consider that there has been a failure to comply with cl 8.6(c)(i) of Direction 14/20 in the circumstances of this matter.

Conclusion

  1. [94]
    For the foregoing reasons, I consider that the disciplinary decision was fair and reasonable.  The appeal is dismissed.

Orders

  1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 26 October 2020 be revoked.

Footnotes

[1] I have determined not to refer to Ms McCarthy's daughter by name within this Reasons for Decision.

[2] T15 L45 – T16 L2.

[3] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

[4] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[6] Exhibit 1, Attachment J.

[7] Clause 13(a) and (b) of Directive 14/20.

[8] Exhibit 1, Attachment K. (See also documents E7-E9 and E12-E14).

[9] Exhibit 1, Attachment E9.

[10] T60 – LL36-40.

[11] Ibid.

[12] Exhibit 1, Attachment B4.

Close

Editorial Notes

  • Published Case Name:

    McCarthy v State of Queensland (Queensland Health)

  • Shortened Case Name:

    McCarthy v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 379

  • Court:

    QIRC

  • Judge(s):

    Hartigan IC

  • Date:

    05 Nov 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203
1 citation
Jump To
Cite 1 - [2020] QIRC 203

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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