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Petrie v State of Queensland (Queensland Health)[2021] QIRC 393

Petrie v State of Queensland (Queensland Health)[2021] QIRC 393

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Petrie v State of Queensland (Queensland Health) [2021] QIRC 393

PARTIES:

Petrie, David

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/106

PROCEEDING:

Public Service Appeal – disciplinary decision

DELIVERED ON:

16 November 2021

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

  1. That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. That pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 19 March 2021 be revoked.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal –  appeal against a disciplinary decision – disciplinary decision made pursuant to s 187 of the Public Service Act 2008 (Qld) – where allegations substantiated – consideration of penalty – whether penalty was proportionate to substantiated conduct – penalty imposed was fair and reasonable – decision appealed against confirmed – stay of decision revoked

LEGISLATION:

Industrial Relations Act 2016 (Qld),
s 562B(2), s 562B(3),  s 562C, s 566

Public Service Act 2008 (Qld) s 187, s 188, s 194, s 197

Directive 14/20: Discipline, cl 8

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)

Reasons for Decision

Introduction

  1. [1]
    Mr David Petrie  ("Mr Petrie") is employed by the Wide Bay Hospital and Health Service, State of Queensland (Queensland Health) ("the Department").  Mr Petrie appeals a disciplinary decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) ("PS Act").
  1. [2]
    Mr Petrie has been employed in the public service since September 1988 and is currently employed as a Senior Dental Technician HP3.7 at Maryborough Hospital.
  1. [3]
    By letter dated 2 March 2021, the decision maker determined to impose disciplinary action on Mr Petrie including a forfeiture in a remuneration increment and a change of rostered hours pursuant to s 188(1) of the PS Act ("the disciplinary decision").
  1. [4]
    On 18 March 2021, Mr Petrie filed an appeal against the disciplinary decision, pursuant to s 194(1)(b)(i) of the PS Act, stating that the decision was not fair and reasonable on the grounds that it:
  1. (a)
    is disproportionate to the conduct alleged;
  1. (b)
    unnecessary considering the context of the allegations; and
  1. (c)
    could not be warranted on the basis of the information provided by the Appellant.
  1. [5]
    On 19 March 2021, this Commission ordered that the decision subject of this appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ("the IR Act").
  1. [6]
    The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
  1. [7]
    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.[1]  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. [8]
    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.[2]  An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[3]
  1. [9]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [10]
    By letter dated 2 February 2021, the decision maker determined that the following allegations against Mr Petrie were substantiated:

Allegation one

You misappropriated public resources when you used the Queensland Health supplies to make a dental impression not intended for public use

Allegation two

You have repeatedly failed to follow a reasonable directive without reasonable excuse.

  1. [11]
    On 2 March 2021, the decision maker imposed a disciplinary penalty pursuant to s 188(1) of the PS Act on Mr Petrie of:
  • forfeiture of remuneration increment to HP3.6; and
  • change of roster to 08:00-16:30 Monday to Friday, accruing a Rostered Day Off (RDO) every month.

Relevant legislation and Directive

  1. [12]
    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

(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. [13]
    Section 188 of the PS Act identifies the disciplinary action that may be taken against a public service employee as follows:

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. [14]
    Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:

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. [15]
    Directive 14/20: Discipline ("Discipline Directive") came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
  2. [16]
    Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
  1. [17]
    Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

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

  1. [18]
    Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:
  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.
  12. (xii)
    the degree of risk to the health and safety of employees, customers and members of the public
  13. (xiii)
    the impact on the employee’s ability to perform the duties of their position
  14. (xiv)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  15. (xv)
    the impact a financial penalty may have on the employee
  16. (xvi)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  17. (xvii)
    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.

Whether the decision was fair and reasonable

  1. [19]
    In determining whether the decision was fair and reasonable, consideration must be had to the allegations and the basis upon which the allegations were substantiated.  I will do so in the context of the grounds of appeal.

Proportionality

  1. [20]
    Mr Petrie submits, in summary, that the relevant considerations with respect to proportionality include:
  1. (a)
    whether the disciplinary action is disproportionate to the conduct alleged; and
  1. (b)
    whether the disciplinary action, in the context of the employment, is disproportionate to the disciplinary action.
  1. [21]
    Mr Petrie contends that he should be provided with no disciplinary action, or "a reprimand to the least," on the basis of mitigating factors such as his length of service and no prior disciplinary history, and, further, that the "consideration of a reprimand on [Mr Petrie's] employment is harsh, considering [Mr Petrie's] previous disciplinary history."
  1. [22]
    I accept Mr Petrie's submission that I will need to consider whether the disciplinary action was proportionate to the conduct alleged.
  1. [23]
    For ease of reference, I note that the disciplinary action proposed was in response to the substantiation of the following allegations:
  1. (a)
    that Mr Petrie misappropriated public resources when he used Queensland Health supplies to make a dental impression not intended for public use; and
  1. (b)
    that Mr Petrie repeatedly failed to follow a reasonable directive without excuse.
  1. [24]
    The disciplinary action proposed to be taken is:
  1. (a)
    a forfeiture in remuneration increment to HP3.6; and
  1. (b)
    change of roster to 08:00 – 16:30 Monday to Friday, accruing a Rostered Day Off (RDO) every month.
  1. [25]
    Mr Petrie does not appeal the decision substantiating the allegations.[4]  Accordingly, it can be accepted that, for the purpose of this appeal, the finding decision dated 2 February 2021 will remain undisturbed.
  1. [26]
    The effect of this is that Mr Petrie has been found to have engaged in conduct that included using Queensland Health supplies to make a dental impression not intended for public use.  This finding was made in the context of Mr Petrie performing work outside the public service as a Dental Technician in a private capacity.
  1. [27]
    Further, on 20 and 24 February 2020, Mr Petrie received correspondence in relation to a perceived conflict of interest and was reminded of his obligations as an employee of the Department.
  1. [28]
    With respect to the second allegation, it must be accepted that it was found that Mr Petrie repeatedly failed to follow a reasonable directive without a reasonable excuse.  This finding was made against the background of Mr Petrie's workplace conduct, including:
  1. (a)
    being directed by his Line Manager, Paul Jeftic ("Mr Jeftic"), to notify him of any unscheduled absences in line with the HR Policy C64- Sick leave;
  1. (b)
    since December 2019, being reminded on six occasions of the correct process for notifying an unscheduled absence; and
  1. (c)
    on multiple occasions between December 2019 and October 2020, failing to advise his line manager, Mr Jeftic, of his absence on the occasions specified in attachment 6 to the show cause letter.[5] 
  1. [29]
    In respect of Mr Petrie's contentions, he argues that no disciplinary action, or "at least a reprimand," should be imposed on him, on the basis of his mitigating factors such as his length of service and no disciplinary history.
  1. [30]
    The difficulty with accepting Mr Petrie's submissions in this regard is that it places far greater weight on factors such as his length of service and that he has no prior disciplinary matters than on the serious conduct which has been substantiated.  To impose no disciplinary action, or in the alternative, a reprimand, would place little to no weight on the nature of Mr Petrie's conduct and the context in which it occurred.
  1. [31]
    I consider that it was appropriate for the decision maker to view the conduct as serious.
  1. [32]
    The decision maker considered alternate strategies to discipline Mr Petrie, but ultimately deemed those alternatives as not being appropriate.  In this regard, the decision maker relevantly stated:[6]

…I believe your conduct is of a serious nature and local management action would not be appropriate in the instances of your misappropriating public resources and repeatedly failing to follow a reasonable directive without reasonable excuse…

  1. [33]
    The decision maker states the reasoning with respect to the type of disciplinary action to be imposed as follows:[7]

…I believe the forfeiture of a remuneration increase is commensurate with your conduct. I further believe that the action of a change in your roster will allow appropriate supervision of your workplace conduct  and is commensurate with your evidenced workplace conduct…

  1. [34]
    From the above extract of the decision, it is clear that the decision maker had regard to the conduct when determining the disciplinary action.  Relevantly, the decision maker has viewed the conduct as serious, and proposed two forms of disciplinary action to address the particular type of conduct which was engaged in by Mr Petrie with respect to allegation one and two.
  1. [35]
    I consider that it was open to the decision maker to impose the disciplinary action contained in the decision, taking into account the seriousness of Mr Petrie's conduct, together with Mr Petrie's personal circumstances, including his length of service and his previously unblemished disciplinary history.
  1. [36]
    I do not consider that the disciplinary action proposed in the decision was disproportionate in the circumstances of this matter.

Disciplinary action unnecessary considering the context of the allegations and unwarranted on the basis of the information provided by Mr Petrie

  1. [37]
    Mr Petrie deals with these two grounds of appeal together and I will adopt a similar approach.
  1. [38]
    Mr Petrie contends that the Department has not taken into consideration the entirety of the submissions he made as part of the show cause process, and that the Department failed to turn its mind to appreciate and understand the entire particulars provided by Mr Petrie in his responses during the show cause process.
  1. [39]
    As noted above, the appeal notice only seeks to appeal the decision dated 2 March 2021.  Mr Petrie has not sought to appeal the decision substantiating the allegations dated 2 February 2021.  Accordingly, these matters are not ultimately relevant to this appeal.  However, the Department has not objected to the submissions made by Mr Petrie with respect to the show cause process and the finding decision, so I will consider the matters raised by Mr Petrie. 
  1. [40]
    Mr Petrie argues, in his submissions that, he cannot see or view how the Department justifies its decision in circumstances where Mr Petrie has provided a clear and comprehensive response during the course of the show cause process. 
  1. [41]
    The finding decision analyses Mr Petrie's submissions in some detail.  The decision maker also had regard to other evidence including, for instance, Ms Minett's and Mr Jeftic's version of events, various file notes, Performance Appraisals and Development Tools and email chains, together with Mr Petrie's responses and/or commentary with respect to the other evidence.
  1. [42]
    Ultimately, after considering Mr Petrie's submissions and the evidence, the decision maker substantiated the allegations.  I am satisfied that in doing so, regard was had to the content of the allegations as referred to in Mr Petrie's submissions.  Further, the decision maker also had regard to Mr Petrie's response put forward by way of correspondence on 16 February 2021.  Relevantly, the decision maker summarises the matters raised by Mr Petrie in his response and responds to those matters in the course of making the decision. Ultimately, the decision maker states that "the evidence of Mr Minett and Mr Jeftic was preferred on the balance of probabilities."  I consider it was open, on the material before the decision maker, for such a finding to be made.
  1. [43]
    Mr Petrie further submits that the change of roster will affect his ability to attend medical specialist appointments on his two rostered days off and finishing work at 4.30pm will prevent him attending the said appointments.
  1. [44]
    The purpose of the change in roster is to address Mr Petrie's conduct that includes not following a directive to notify his manager of any unscheduled absences and failing to notify his manager of such absences when they occurred.  The change of roster will not preclude Mr Petrie from attending medical specialist appointments.  The expectation of Mr Petrie's employer is clear; that is, Mr Petrie is required to notify his manager of any unscheduled absence.  Given that medical specialist appointments are made, in the ordinary course, in advance, it should not be difficult for Mr Petrie to comply with such a requirement.
  1. [45]
    I further consider that there was sufficient material before the decision maker to conclude that the disciplinary action in the form proposed was warranted.
  1. [46]
    For the foregoing reasons, I do not consider that the matters raised by Mr Petrie under the grounds of appeal render the decision or the decision-making process as not fair and reasonable.

Conclusion

  1. [47]
    I have concluded that the decision and the decision-making process associated with it to be fair and reasonable.  Accordingly, I confirm the decision subject to this appeal.

Orders

  1. That pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against be confirmed.
  1. That pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision appealed against made on 19 March 2021 be revoked.

Footnotes

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

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

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

[4] Appeal Notice filed 18 March 2021 only relates to the disciplinary decision.

[5] Respondent's submission, Attachment WBHHS D, Attachment 6, filed 6 April 2021.

[6] Respondent's submissions, Attachment WBHHS F, 6, filed 6 April 2021.

[7] Respondent's submissions, Attachment WBHHS D, 16, filed 6 April 2021.

Close

Editorial Notes

  • Published Case Name:

    Petrie v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Petrie v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 393

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    16 Nov 2021

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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