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A v State of Queensland (Queensland Health)[2021] QIRC 398

A v State of Queensland (Queensland Health)[2021] QIRC 398

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

A v State of Queensland (Queensland Health) [2021] QIRC 398

PARTIES: 

A (a pseudonym)

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/195

PROCEEDING:

Public Service Appeal – Decision on Disciplinary Penalty

DELIVERED ON:

24 November 2021

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

1. The application in existing proceedings filed 26 July 2021 is granted.

2. Pursuant to r 97 of the Industrial Relations (Tribunal) Rules 2011 (Qld), the Appellant's name is to be anonymised and withheld from publication.

3. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

4. The appeal is dismissed.

CATCHWORDS:

PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a disciplinary penalty – whether the decision was fair and reasonable – decision confirmed – appeal dismissed

INDUSTRIAL LAW – PRACTICE AND PROCEDURE – application to anonymise appellant's name – consideration of principles of open justice – application granted

LEGISLATION AND INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 562B

Industrial Relations (Tribunal) Rules 2011 (Qld) r 97

Public Service Act 2008 (Qld) ss 187, 197

CASES:

Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263

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

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

R v Sussex Justices; Ex parte McCarthy [1924] KB 256

Reasons for Decision

  1. [1]
    The Appellant is employed by the State of Queensland as a Work Health Safety Advisor ('WHS Advisor'), with the Children's Health Queensland Hospital and Health Service ('CHQ') through Queensland Health. They have worked for Queensland Health since 2017.
  2. [2]
    In correspondence dated 6 May 2021, Mr Michael Aust, Acting Executive Director, People and Culture for CHQ, advised the Appellant that, pursuant to s 187(1)(a) of the Public Service Act 2008 (Qld) ('the PS Act'), he had decided to impose the disciplinary penalty of a:
  1. (a)
    reprimand; and
  2. (b)
    reduction in classification level and consequential change of duties from a Work Health and Safety Advisor (AO5) to Safety Officer (AO4.4);

('the disciplinary decision').

  1. [3]
    By appeal notice filed with the Industrial Registrar on 28 May 2021, the Appellant, pursuant to ch 7, pt 1 of the PS Act, appeals against the disciplinary decision. Section 197 of the PS Act provides that such an appeal is to be heard and determined under ch 11 of the Industrial Relations Act 2016 (Qld), by the Queensland Industrial Relations Commission ('the Commission').
  2. [4]
    I am required to decide the appeal by reviewing the decision appealed against.[1] The purpose of the appeal is to determine whether the decision appealed against was fair and reasonable.[2]
  3. [5]
    This process is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[3] Findings which are reasonably open to the decision-maker should not be disturbed on appeal.
  4. [6]
    The issue for determination, therefore, is whether the decision to impose the disciplinary penalty of a reprimand, and a reduction in classification level and consequential change of duties, was fair and reasonable.[4]

Application for Anonymity

  1. [7]
    Before turning to the substantive matter of this appeal, it is relevant to note the Appellant filed a Form 4 – Application in existing proceedings on 26 July 2021 seeking to have their name anonymised.
  2. [8]
    The principles relevant to determining whether such an order ought to be made are usefully set out by O'Connor VP in Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd.[5] Most relevantly, his Honour recognised that it is a fundamental tenet of the principle of open justice that justice not only be done, but that it also be seen to be done.[6] This is achieved not only through the conduct of proceedings in open court, but also the publication of written reasons which will ordinarily require the publication of the names of those involved in the proceedings.[7]
  3. [9]
    However, such principles are not absolute and r 97 of the Industrial Relations (Tribunal) Rules 2011 (Qld) recognises that the Commission is empowered to de-identify decisions, and redact information, where there is good reason to do so.[8] That rule relevantly provides:

97 Publishing decisions etc.

 (1) The registrar may publish on the QIRC website—

  (a) a decision of the court, commission or registrar; and

  ...

 (3) The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate—

  (a)  withhold publication of a document; or

 (b) modify a document, before publication, in a way that does not affect the essence of the document.

  1. [10]
    Having considered the Appellant's application and accompanying submissions, I am satisfied the publication of the Appellant's name may cause them unacceptable harm having regard to the nature of some of the material before me in making my decision.
  2. [11]
    As such, I have determined it is appropriate, in these particular circumstances, to anonymise the Appellant's name and refer to them throughout this decision as simply 'the Appellant'. I also note the application was not opposed by CHQ.

Background

  1. [12]
    As mentioned above, the Appellant is currently employed as a WHS Advisor at CHQ.
  2. [13]
    On 1 April 2020, the Appellant, along with a union representative, met with their manager and a Principal HR Consultant to discuss the requirements of the WHS Adviser role and explore the potential implementation of a Performance Improvement Plan ('PIP'), with the stated objective of addressing concerns about the way the Appellant was undertaking work health and safety ('WHS') investigations.[9]
  3. [14]
    Several days later, the Appellant's manager confirmed, in writing, that the proposed formal PIP would be placed on hold.[10] It was instead proposed the Appellant would be afforded the opportunity to address the identified performance concerns without the formality of a PIP. The manager's email detailed the two primary areas of concern as being the Appellant's:
  1. (a)
    ability to undertake and present WHS investigations; and
  2. (b)
    organisational skills, which extended to prioritising, assessing and undertaking WHS activities at an AO5 level.
  1. [15]
    Within the same correspondence, the manager set out support options that would be provided to the Appellant to assist with their performance, in conjunction with suggestions about proposed areas for improvement, particularly in relation to the investigatory aspects of their role.
  2. [16]
    Having concluded several WHS investigations between early April 2020 and June 2020, the Appellant was again invited to meet with their manager and a Principal HR Consultant to discuss the implementation of a PIP in circumstances where their manager concluded the informal coaching and assistance provided to the Appellant in the preceding weeks had not resulted in satisfactory improvement in their performance.[11]
  3. [17]
    In subsequent correspondence confirming the PIP arrangements, the Appellant was advised unsatisfactory performance during the formal PIP process could result in disciplinary action, including the termination of their employment.[12]

The PIP

  1. [18]
    On 3 August 2020, a formal PIP was implemented.[13]
  2. [19]
    The PIP itself involved the identification of key areas of performance which required improvement and a series of regular meetings, during which the Appellant was provided with direct feedback about the WHS investigations they undertook, including the preparation of investigation reports and related work matters they had undertaken.[14]
  3. [20]
    The Appellant entered a written PIP, setting out the responsibilities of the Appellant, their manager and other members of Senior Management within their division.
  4. [21]
    Essential skills, knowledge and other areas identified for improvement during the PIP process included:
  1. (a)
    the undertaking and presentation of investigations, including data collection, interview skills and investigation observations;
  2. (b)
    the presentation of investigation findings including structure, relevant information missing, the inclusion of irrelevant information, lack of completeness, incorrect root determination, grammar, readability, and timeliness; and
  3. (c)
    a requirement for the Appellant to adequately meet their role requirements as outlined in the role description and/or address identified deficiencies in their performance, particularly in relation to demonstrating:
  • sound analytical skills, including the ability to analyse and interpret information such as incidents, accident trends and issues, prepare written reports, deal with challenges creatively and achieve business focussed workplace safety solutions; and
  • organisational skills and experience working in a high volume and demanding professional environment, with a capacity to prioritise competing demands and achieve results with a customer focused approach.
  1. [22]
    Although it was originally determined the PIP would continue until 23 October 2020, the process was extended by agreement until 4 December 2020.[15] The materials forwarded to the Appellant at the time suggest the purpose of the extension was to provide them with a further period in which to undertake WHS investigations, which would in turn provide their manager with a higher number of reports on which to assess the Appellant's performance.
  2. [23]
    Thereafter, the Appellant met with their line manager for scheduled PIP review meetings on 13 October 2020, 9 November 2020 and 16 November 2020 during which the Appellant was provided with direct feedback about various concluded WHS investigations, the accompanying reports and other related issues.[16]
  3. [24]
    On 18 December 2020, having already attended an earlier meeting with their manager and a Principal HR Consultant where a final PIP review was undertaken, the Acting Director of HR Operations confirmed, in writing, the Appellant's manager did not consider they had met the performance expectations set out in the PIP.[17]
  4. [25]
    The Appellant was advised the issue would be escalated to the Acting Director, People and Culture for appropriate action, but that due to the impending Christmas closure, the matter would be placed in abeyance until 2021. In the interim, the Appellant was requested to refer any WHS investigations to their line manager.[18]

The Show Cause Process

  1. [26]
    On 11 February 2021, the Appellant was provided with a show cause notice.[19] The correspondence included a brief description of events leading up to the implementation of the PIP, along with one allegation, namely:

It is alleged that you failed to meet the performance expectations of your role as a Work Health and Safety Advisor (AO5), specifically related to the completion of investigations in a satisfactory manner, following the PIP you undertook between 3 August 2020 and 4 December 2020.

  1. [27]
    The particulars accompanying the allegation detailed the number and nature of the PIP review meetings held during the relevant period, in addition to a summary of specific feedback provided to the Appellant by their manager during the meetings in relation to the Appellant's performance, which identified areas for improvement.
  2. [28]
    The show cause notice detailed certain areas where it was considered the Appellant had not met expectations, nor demonstrated satisfactory improvement in the performance of their role, namely:
  1. (a)
    very little evidence of comprehensive data collection was demonstrated within five investigations that were analysed;
  1. (b)
    no evidence of interview technique improvement was identified within four investigations that were analysed;
  2. (c)
    a failure to ensure investigative observations were relevant to the investigation and underpinned by facts in five investigations that were analysed;
  3. (d)
    four investigations that were analysed were not structured in a consistent manner;
  4. (e)
    two investigation reports failed to capture the pertinent information and left the reader with unanswered questions;
  5. (f)
    three investigations possessed irrelevant information, inclusive of unnecessary photographs that held no relevant information related to the investigation;
  6. (g)
    the root cause determination was incorrectly identified within three investigation reports analysed during the meeting; and
  7. (h)
    incorrect use of grammar meaning consistent editing of investigation reports was required to ensure readability of analysed investigations throughout the process, with two reports requiring significant editing and three reports requiring further editing.
  1. [29]
    The Appellant, having obtained an extension, provided a response to the show cause notice on 4 March 2021.[20] With one exception, the Appellant acknowledged they had not yet reached the requirements of the PIP.
  2. [30]
    The noted exception related to the Appellant's ability to conduct interviews and a failure, on the part of their manager, to observe the Appellant's interview skills in either a role play environment or a situation where they were undertaking an interview.
  3. [31]
    Within the same correspondence, the Appellant acknowledged they had let their manager down, but pointed to predominantly external issues as the reason for their deficient work performance. These included:
  • a reduction in their ability to undertake face-to-face interviews due to COVID‑19; and
  • diminished sleep and increased worry due to significant domestic and mental health challenges concerning one of their children.
  1. [32]
    On 30 March 2021, Mr Aust again wrote to the Appellant with a response, noting:[21]
  • their manager denied receiving a request that he observe the Appellant conducting an interview, but in any event had provided further written resources to the Appellant to support them when undertaking an interview;
  • the Appellant was reminded of their attendance at a two-hour coaching session which covered interview techniques on 13 August 2020;
  • the Appellant was granted extensions on several occasions where COVID-19 presented challenges to their ability to undertake interviews in a timely manner; and
  • the Appellant's manager would meet with them daily to ask if they were 'okay to be at work and to perform [their] role', to which the Appellant responded that they were. Moreover, the Appellant was encouraged to take personal leave where they considered their personal circumstances were impacting their ability to perform their role.
  1. [33]
    Mr Aust acknowledged the Appellant had experienced some personal difficulties but highlighted the extensive support they had received from the People and Culture management team consistent with relevant public service commission directives, noting the impact their deficient performance was having on their team's ability to deliver a high functioning service to the business.
  2. [34]
    Mr Aust concluded the correspondence by substantiating the allegation, advising he had lost confidence in the Appellant's ability to meet their performance expectations, and was unwilling to provide the Appellant with any further time to improve. The Appellant was advised consideration was being given to the disciplinary action of:
  1. (a)
    a reprimand; and
  1. (b)
    a reduction in classification level and consequential change of duties from a Work Health and Safety Advisor (AO5) to Safety Officer (AO4.4).

Show Cause – Penalty

  1. [35]
    In late April 2021, the Appellant responded to the show cause notice setting out the proposed penalty.[22] In the correspondence, the Appellant resiled from their earlier acknowledgement they had not yet met all the performance requirements of the PIP, stating they did not admit to 'not being able to conduct or complete a WHS investigation', revisiting former training they had undertaken and suggesting their investigation reports may well be deemed acceptable if they were evaluated by a separate subject matter expert.
  2. [36]
    The Appellant highlighted their existing expenses, including mortgage repayments, observing the significant toll the proposed penalty would have in relation to their own health, along with their future employment prospects. They relied on recent positive feedback in relation to their performance by other stakeholders, noting they had met the criteria to move up two pay increments, with the support of previous managers.
  3. [37]
    The Appellant concluded their response by confirming they disputed the allegation in full and considered the proposed penalty to be harsh and unjust.
  4. [38]
    The Appellant proposed an alternative penalty in the form of a transfer or redeployment to other employment within the public sector at the AO5.3 level, with an onus placed on the Appellant to meet the required standard of investigation before being reinstated to an AO5.4 level.

The Decision

  1. [39]
    In response, the disciplinary decision prepared by Mr Aust, which is now the subject of this appeal, noted the:
  • PIP provided clear criteria against which the Appellant's performance would be assessed, which, in the decision-maker's view, were open to minimal interpretation;
  • Appellant's manager relied on objective rationale to support their recommendation that there had not been an improvement to a sufficient standard to pass the PIP;
  • decision-maker, who had no involvement with the PIP process, had considered the evidence in support of the conclusions and also formed a conclusion the Appellant had failed to meet the performance expectations of their role;
  • Appellant's position they did 'not admit liability of not being able to conduct or complete a WHS investigation', contradicted their earlier response, where they acknowledged they had not met all the requirements of the PIP;
  • increase in pay increments had taken effect having regard to the Appellant's time in the role (a requirement under the relevant Award), rather than in response to their performance;
  • Appellant's transfer to the role following a suitability assessment did not preclude the CHQ from addressing poor performance and taking corrective action thereafter; and
  • comments or observations made by others in relation to the performance of WHS Advisors were not relevant to the Appellant's own performance.
  1. [40]
    In response to the Appellant's position the 'investigations' component of their role was but one of many other responsibilities, the Mr Aust observed:

... investigations are a core function of your role as WHS Advisor and are instrumental in identifying root causes and mitigation strategies which are critical to the WHS function and the service provided to CHQ.

  1. [41]
    Mr Aust acknowledged the Appellant's focus on earlier training, experience and qualifications, noting the extensive guidance and support they had received in their role for over twelve months. Having regard to these factors, in concert with the Appellant's failure to improve to an acceptable level, Mr Aust concluded it would be unlikely the Appellant would improve in the future.

Appellant's Grounds of Appeal and Submissions  

  1. [42]
    In their appeal notice, the Appellant set out the following grounds for their appeal against the disciplinary decision, namely:
  1. (a)
    The penalty is disproportionate to the substantiated allegation, in circumstances where it is argued:
  • the function (investigations) about which a concern has been raised is only one function of the role and is not a significant part of said role;
  • of the sixteen investigations completed throughout the PIP process, only seven were deemed as not meeting the standard required of CHQ;
  • the findings of the PIP were based purely on their manager's reading of the materials; and
  1. (b)
    the findings do not reflect the Appellant's actual ability to conduct investigations that the decision-maker failed to consider, or disregarded, other factors which impacted the Appellant's ability, at various times, to achieve the requirements of the PIP, including the:
  • impact of the COVID-19 Pandemic; and
  • domestic violence situation in the Appellant's personal life.
  1. [43]
    The Appellant seeks an order that the disciplinary decision be set aside and instead substituted with a decision imposing an alternate penalty, being a reduction in increment level for a period of twelve months.
  2. [44]
    Before turning to the parties' submissions, it is relevant to note that although the Appellant has not sought to overtly appeal the decision to substantiate the allegation, there are some minor areas within their submissions which are directed to this issue.
  3. [45]
    To the extent those submissions are not relevant to the present issue, being the disciplinary penalty and whether the disciplinary decision, and the decision‑making process associated with that decision, were fair and reasonable, those submissions are not reflected in this decision.

Appellant's Submissions

  1. [46]
    In their written submissions, the Appellant submits:[23]
  • the penalty of a reduction in classification level is disproportionate to the substantiated allegation, in circumstances where the investigative function within their role is one of fourteen responsibilities;[24]
  • over a two-year period, the Appellant has been required to complete sixteen investigations, of which only seven were assessed as not meeting the PIP;[25]
  • the penalty of a reduction in classification level from AO5.4 to AO4.4 equates to a financial penalty of $484.30 each fortnight;[26]
  • the decision-maker failed to give sufficient weight to the impact of the global COVID-19 pandemic and the Appellant's diminished capacity to properly conduct interviews or engage with interviewees;[27]
  • the decision-maker failed to consider the detrimental impact of family violence and mental health issues being experienced by one of their children over a period of four years;[28]
  • they had time off preceding and during the PIP assessment period to attend to family and domestic violence court matters;[29]
  • they attended a series of court and medical appointments (after hours), throughout 2019, and on one occasion in 2020, related to family violence and mental health matters;[30]
  • they struggled to focus whilst working from home, due to mood swings and occasional outbursts from one of their children, with these events mostly occurring late at night or in the early hours of the morning;[31] and
  • the decision-maker had misunderstood the purpose of the Appellant's daily meetings with their manager which were focussed on organising and prioritising work rather than providing additional support in a 'well-being' sense.[32]

CHQ's Submissions

  1. [47]
    In its written submissions, CHQ relevantly submits:[33]
  • the ability to conduct investigations as part of the WHS Adviser role is a core, significant and inherent component of the Appellant's role and is instrumental in identifying root causes and mitigation strategies, which are critical to the WHS function;[34]
  • investigations and their outcomes dictate the course of WHS initiatives, policies, strategies and programs undertaken and implemented by WHS Advisors. Consequently, the capacity to undertake investigations is an inherent requirement of the WHS role;[35]
  • the Appellant has demonstrated, notwithstanding both informal and formal performance management processes, an inability to undertake an investigation to the required standard;[36]
  • in response to the Appellant's claims that only seven of the sixteen investigations were deemed unacceptable, this still represents 50% of the Appellant's investigations which presents a risk to CHQ from a WHS perspective;[37]
  • further, that those investigations that were considered acceptable were only deemed to have reached the requisite standard following review and further feedback from the Appellant's manager;[38]
  • notwithstanding the Appellant's view that the outcome of the PIP was based purely on their manager's perspective, they have acknowledged and agreed with their manager's determination of their failure to conduct investigations to an acceptable standard. Moreover, the WHS manager is best placed to undertake an assessment of the Appellant's ability to undertake investigations to a suitable standard;[39]
  • the Appellant has and continues to be supported in relation to external family circumstances through the authorisation of paid leave and the use of an employee assistance program. In support of this position, CHQ provided the Commission with a copy of a report setting out prior leave approvals;[40]
  • in response to the Appellant's submission of police materials in support of challenging family circumstances, CHQ pointed to the date of the materials, noting the events occurred nearly one year prior. In any event, CHQ argues the external events did not render the Appellant unable to be performance managed;[41]
  • in response to the Appellant's concerns about the impact of COVID-19 restrictions on their capacity to undertake interviews, CHQ, although acknowledging the pandemic may have (at times) presented challenges in conducting face-to-face interviews, considered the Appellant was provided with support and opportunities to work through those challenges. In any event, it argues conducting interviews is, but one of many features of an investigation process, and any challenges faced in doing so did not absolve the Appellant of deficiencies in other areas;[42]
  • the Appellant is remunerated to complete all responsibilities, with investigations a significant component of the WHS role. Given the appellant has demonstrated and acknowledged an inability to perform their key responsibility, a demotion is an appropriate disciplinary action. Moreover, their inability to complete the investigations, in a practical sense, leads to a situation where the Appellant is unable to undertake a core element of the AO5 role;[43] and
  • the imposition of a reduction in increment level, as proposed by the Appellant, would not be appropriate or proportionate, given their inability to complete a core component of their role. Moreover, a reduction in increment would not correct or address the Appellant's inability to undertake a core, significant and inherent requirement of their role.[44]

Appellant's Reply Submissions

  1. [48]
    In reply, the Appellant focusses heavily on the nature of their role, including the interview component, re-visiting their concerns about the absence of an independent review in respect of their interview techniques.[45]
  2. [49]
    The Appellant also considered CHQ's submissions in respect of the time lapse between the materials highlighting the nature of their challenging family circumstances and the timing of PIP, demonstrated a lack of empathy and understanding on the part of CHQ about the impact of domestic and family violence matters.[46]

Was the Disciplinary Decision Fair and Reasonable?

  1. [50]
    As observed earlier in this decision, the Appellant did not appeal against the substantiation of the allegation in the initial disciplinary finding made by the decision‑maker in their correspondence dated 30 March 2021.
  2. [51]
    The decision the subject of the appeal that I am to review is the disciplinary decision made by the decision-maker in relation to penalty, which came some time after the decision substantiating the allegation. My task is to determine whether the disciplinary decision and the decision-making process therein was fair and reasonable.
  3. [52]
    The allegation the subject of the disciplinary finding made against the Appellant was:

It is alleged you failed to meet the performance expectations of your role as a Work Heath and Safety Advisor (AO5), specifically related to the completion of investigations in a satisfactory manner, following the PIP you undertook between 3 August 2020 and 4 December 2020.

  1. [53]
    The particulars of the allegation were summarised across three pages of the show cause correspondence sent to the Appellant and included:
  • an earlier decision by CHQ to hold off on enacting a PIP to allow the Appellant further time to address performance concerns in an informal manner;
  • the participation of the Appellant in an agreed PIP process over several months, which included scheduled fortnightly PIP meetings where the Appellant was provided with extensive feedback about the quality of their investigations and the accompanying reports;
  • an extension of the PIP process to afford the Appellant more time to demonstrate improvement;
  • ongoing feedback from mid-August to mid-December 2020, whereby the Appellant was provided with detailed feedback on key concerns about the conduct of their investigations and the preparation of the accompanying reports; and
  • a summary of nine key areas where the Appellant was not meeting expectations and demonstrating improvement.
  1. [54]
    The decision-maker determined the allegation was substantiated, and considered grounds existed for the Appellant to be disciplined in circumstances where, pursuant to s 187(1)(a) of the PS Act, they had engaged in repeated unsatisfactory performance or serious underperformance of their duties, including, for example, by performing duties carelessly, incompetently or inefficiently.
  2. [55]
    In its submissions, CHQ highlighted the period of time between April 2020 and December 2020, during which the Appellant was provided with both informal and formal feedback and opportunities to improve their performance. This included a period before the implementation of a formal PIP whereby CHQ held off on any formal processes to afford the Appellant more time to improve ahead of the PIP.
  3. [56]
    In support of its position, CHQ provided the Commission with a detailed overview of the PIP process it had commenced and supporting documents, including file notes which detailed feedback and discussions held between the Appellant and representatives of CHQ.
  4. [57]
    Other than submitting that CHQ should have considered appointing a different person to undertake a review of their performance, the Appellant did not dispute the content within the material. Separately, within the show cause material provided to the Commission, the Appellant overtly acknowledged that, despite some improvements, their performance had not reached an acceptable standard.
  5. [58]
    Similarly, although it is acknowledged the Appellant takes umbrage in response to CHQ's concerns about their interview techniques, I have been unable to locate any meaningful aversion, on the part of the Appellant, to other conclusions and concerns raised about their conduct of investigations and the preparation of reports, namely:
  1. (a)
    the absence of comprehensive data collection techniques;
  2. (b)
    ensuring investigative observations were relevant to the investigation and underpinned by facts;
  3. (c)
    ensuring all relevant information was included in investigation reports;
  4. (d)
    the inclusion of irrelevant information, for example, photographs or diagrams which were not related to the investigation;
  5. (e)
    the identification and presentation of a root cause determination;
  6. (f)
    utilisation of correct grammar and editing processes; and
  7. (g)
    readability, with reports still requiring extensive editing to ensure readability.
  1. [59]
    The Appellant argues the preparation of investigation reports is but one of fourteen responsibilities they are required to undertake, therefore rendering the proposed demotion disproportionate in circumstances where they can ably perform other elements of their role.
  2. [60]
    Conversely, CHQ maintains the capacity to conduct investigations is a core and inherent component of the Appellant's role, with investigative outcomes dictating the course of WHS initiatives, policies, strategies and programs implemented by WHS Advisors.
  3. [61]
    Both the Appellant and CHQ provided the Commission with the relevant position descriptions, albeit with different titles, which detailed the AO5 WHS Advisor role and responsibilities. At the request of the Commission, the AO4 Safety Officer role was also submitted.
  4. [62]
    As I understand it, the AO4 Safety Officer role is the position it is envisaged the Appellant will undertake in the event the disciplinary penalty is upheld.
  5. [63]
    Having reviewed the AO5 position description, I accept that one of the key differences between the roles, and certainly one of the more significant responsibilities that underpins the AO5 position, is the capacity of the incumbent to conduct investigations of serious WHS incidents which in turn drives strategies, programs and policies across facilities within CHQ.
  6. [64]
    I also accept the capacity to undertake investigations and prepare reports to an acceptable standard is an inherent part of the AO5 role. Similarly, the requirement to coordinate the implementation of WHS strategies and programs to facilities is an important element of the role. In many respects, it is these responsibilities that differentiate the AO5 role from the AO4 position.
  7. [65]
    Although it is the case that other responsibilities also form part of the AO5 position, I accept that investigation and reporting function is a core element of the position. An inability to complete this part of the role, to an acceptable level, renders the Appellant in a situation where they are no longer completing duties composite to the AO5 level.
  8. [66]
    I consider the Appellant's proposed reduction in increment for a period of time would not address the real issue here, which is their current inability to perform a crucial aspect of the role, for which they are presently remunerated at the AO5 level.
  9. [67]
    As part of their submissions, the Appellant has raised CHQ's lack of regard, understanding and empathy in relation to the impact of domestic and family violence matters, as a reason why their demotion to the AO4.4 level should be set aside.
  10. [68]
    One of the difficulties I have with this argument is that it is not entirely clear from the materials before the Commission, which include responses provided by the Appellant during the show cause process, of the extent to which these events impacted the Appellant's ability to perform their job in the period between April to December 2020.
  11. [69]
    Certainly, on the submissions of the Appellant, it is clear they attended some court and medical appointments, particularly in 2019, however, the nature of their involvement and the degree to which these events impeded their ability to undertake investigations over the course of a nine-to-twelve-month period in 2020 is far from clear.
  12. [70]
    Although it is important for organisations to consider external events, such as those identified by the Appellant, when arriving at a decision on penalty, those circumstances must also be balanced against the reasons for taking disciplinary action and, in this case, the extent to which steps have been taken by the employer to identify and improve areas of deficient performance. Likewise, the period of time over which the performance issues have arisen is a relevant consideration, when weighing up external factors which may impact performance
  13. [71]
    Unhelpfully, there appear to be very few contemporaneous records or documents within the materials before me, which reveal the timeframe within, and extent to which these events were seriously impacting the Appellant's capacity to undertake their role, and in particular, the investigative function. This is particularly the case during the period in which the PIP was implemented.
  14. [72]
    Similarly, the Appellant's reliance on COVID-19 restrictions as an impediment to conducting meaningful interviews, and the extent to which the pandemic impeded the preparation and quality of the investigative reports during the PIP period, is not clear from their submissions. Moreover, even if it was the case that COVID-19 created some challenges in terms of interviewing witnesses on occasion, this does not necessarily explain the other deficiencies identified in the investigative process at [58].
  15. [73]
    Finally, having appealed to the Commission, the Appellant argues CHQ should have taken steps to organise an independent review of their manager's findings. One of the challenges I have with this argument is that it is predominantly concerned with the substantiation of the original allegation, rather than the decision that is now the subject of this appeal. In any event, the materials before the Commission reveal the Appellant acknowledged during the show cause process, they had not yet met all the requirements of the PIP.
  16. [74]
    The extensive guidance and support provided to the Appellant in the AO5 role for a period of more than twelve months, with a view to assisting their performance in the conduct and reporting of investigations, was referred to in the reasons provided by the decision-maker in support of the penalty which is now the subject of this appeal. CHQ has also highlighted the consequences of the Appellant's inability to undertake the investigation elements of their role and the impact this has on the development of procedures, programs and policies for facilities and clients within CHQ.
  17. [75]
    Having regard to these factors, in combination with the steps taken by management, in both an informal and, later, a formal sense to improve their performance, I have concluded the penalty of a reprimand and a reduction in classification level, and consequential change of duties from a Work Health and Safety Advisor (AO5) to Safety Officer (AO4.4), was fair and reasonable.

Conclusion

  1. [76]
    For the reasons given above, I consider the decision was fair and reasonable.
  2. [77]
    The decision appealed against is confirmed.

Order

  1. The application in existing proceedings filed 26 July 2021 is granted.
  2. Pursuant to r 97 of the Industrial Relations (Tribunal) Rules 2011 (Qld), the Appellant's name is to be anonymised and withheld from publication.
  3. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
  4. The appeal is dismissed.

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2).

[2] Ibid s 562B(3).

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

[4] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252.

[5] [2021] QIRC 263, [40]-[46].

[6] Ibid [40]; citing R v Sussex Justices; Ex parte McCarthy [1924] KB 256, [259].

[7] Ibid [41]-[42].

[8] Ibid [42]-[43].

[9] CHQ's submissions filed 28 June 2021, Annexure NH1 – Attachment NH1.7.

[10] Ibid Annexure NH1 – Attachment NH1.2.

[11] Ibid Annexure NH1 – Attachment NH1.4.

[12] Ibid Annexure NH1 – Attachment NH1.6.

[13] Ibid Annexure NH1 – Attachment NH1.7.

[14] Ibid Annexure NH1 – Attachments NH1.8, NH1.11, NH1.13, NH1.14, NH1.15.

[15] Ibid Annexure NH1 – Attachment NH1.12.

[16] Ibid Annexure NH1 – Attachments NH1.13, NH1.14, NH1.15.

[17] Ibid Annexure NH1 – Attachment NH1.9.

[18] Ibid.

[19] Ibid Annexure NH1 – Attachment NH1.0.

[20] Ibid Annexure NH2.0.

[21] Ibid Annexure NH1 – Attachment NH3.0.

[22] Ibid Annexure NH1 – Attachment NH4.0.

[23] Appellant's submissions filed 14 June 2021.

[24] Ibid [2].

[25] Ibid [3].

[26] Ibid [6].

[27] Ibid [7].

[28] Ibid [8].

[29] Ibid [8(b)].

[30] Ibid [8(c)].

[31] Ibid [8(d)].

[32] Ibid [9]-[11].

[33] CHQ's submissions filed 28 June 2021.

[34] Ibid [9].

[35] Ibid [10].

[36] Ibid [11].

[37] Ibid [12].

[38] Ibid.

[39] Ibid [13].

[40] Ibid [15]; Annexure NH6.

[41] Ibid [16]-[17].

[42] Ibid [18].

[43] Ibid [19].

[44] Ibid [22].

[45] Appellant's submissions in reply filed 13 July 2021, [1]-[9].

[46] Ibid [10].

Close

Editorial Notes

  • Published Case Name:

    A v State of Queensland (Queensland Health)

  • Shortened Case Name:

    A v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 398

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    24 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
Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263
3 citations
Jump To
Cite 1 - [2021] QIRC 263
Cite 2 - [2021] QIRC 263
Cite 3 - [2021] QIRC 263
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
R. v Sussex Justices [1924] KB 256
4 citations
Jump To
Cite 1 - [1924] KB 256
Cite 2 - [1924] KB 256
Cite 3 - [1924] KB 256
Cite 4 - [1924] KB 256

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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