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de Villiers v State of Queensland (Queensland Health)

[2021] QIRC 7

de Villiers v State of Queensland (Queensland Health)[2021] QIRC 7

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

de Villiers v State of Queensland (Queensland Health) [2021] QIRC 007

PARTIES:

de Villiers, Petrus 

(Appellant)

v

State of Queensland (Queensland Health) 

(Respondent)

CASE NO.:

PSA/2020/263

PROCEEDING:

Public Service Appeal - Disciplinary Finding Decision - Fair Treatment Decision

DELIVERED ON:

8 January 2021

MEMBER:

Merrell DP

HEARD AT:

On the papers

DATES OF WRITTEN

SUBMISSIONS:

Appellant's written submissions filed on 3 November 2020 and Respondent's written submissions filed on 17 November 2020

ORDER:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    I set aside the decision appealed against; 
  1. (b)
    I return the matter to the decision maker with a copy of this decision;
  1. (c)
    I direct that the decision maker reissue the decision to the Appellant containing only the substantiated allegations as I have found to be fair and reasonable, namely that:
  1. (i)
    all the particularised allegations contained in Allegation One are substantiated;
  1. (ii)
    all the particularised allegations contained in Allegation Two are substantiated;
  1. (iii)
    all the particularised allegations contained in Allegation Three are substantiated other than the particularised allegation concerning the Appellant's conduct on 6 February 2020; and
  1. (iv)
    all the particularised allegations contained in Allegation Four are not substantiated; and
  1. (d)
    I further direct that the decision maker, in reissuing the decision to the Appellant as provided for in paragraph (c) of this Order, unequivocally specifies:
  1. (i)
    the clause or clauses of the Code of Conduct for the Queensland Public Service the decision maker finds the Appellant contravened in respect of the substantiated allegations contained in Allegation One; and
  1. (ii)
    the section or sections of the Public Service Act 2008 the decision maker finds the Appellant contravened in respect of the substantiated allegations contained in Allegation Three.

LEGISLATION:

Code of Conduct for the Queensland Public Service, cl 1.1, cl 1.5 and cl 2.1

Industrial Relations Act 2016, s 451, s 562B and s 562C

Public Service Act 2008, s 187, s 194, s 197 and s 201

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)

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

Reasons for Decision

Introduction

  1. [1]
    Mr Petrus de Villiers is currently employed as a Dental Prosthetist within the Metro North Hospital and Health Service ('the Health Service').  Mr de Villiers' position is based at the Sandgate and Pine Rivers Dental Clinics. Mr de Villiers is employed by the State of Queensland, through Queensland Health. The classification of Mr de Villiers' position is HP3.
  1. [2]
    By appeal notice filed on 19 October 2020, Mr de Villiers, pursuant to ch 7 of the Public Service Act 2008 ('the PS Act'), appealed against a disciplinary finding decision made by Ms Sarah Asmussen, Director of Operations, Metro North Oral Health Services, Community and Oral Health of the Health Service dated 14 October 2020 ('the decision').
  1. [3]
    Although Mr de Villiers contends in his appeal notice that he is appealing a current discipline decision, Ms Asmussen, in the decision, did not impose a disciplinary penalty.  Ms Asmussen found that four allegations made against Mr de Villiers, concerning his conduct at work, were substantiated and that Mr de Villiers was liable to a disciplinary penalty. Ms Asmussen then invited Mr de Villiers to respond in relation to the disciplinary penalty she was giving consideration to imposing, namely, the termination of his employment.
  1. [4]
    In truth, Mr de Villiers' appeal is against a fair treatment decision.[1] Therefore, in considering his appeal, I take it that Mr de Villiers contends that Ms Asmussen's decision was unfair and unreasonable.
  1. [5]
    The decision was stayed until the determination of Mr de Villiers' appeal or further order of the Commission. The parties exchanged written submissions in accordance with a Directions Order dated 21 October 2020. Pursuant to s 451(1) of the Industrial Relations Act 2016 ('the IR Act'), no hearing was conducted.
  1. [6]
    In my view, having regard to the material before me, the findings were fair and reasonable other than in relation to one particularised allegation contained in the third allegation and other than in relation to the entirety of the fourth allegation.  
  1. [7]
    However, in respect of the contraventions of the Code of Conduct for the Queensland Public Service ('the Code') in relation to the substantiated findings about Allegation One and in respect of the contraventions of the PS Act in relation to the substantiated findings about Allegation Three, there is unfairness and unreasonableness in that Ms Asmussen was equivocal in respect of the particular contraventions she found occurred.
  1. [8]
    My reasons follow.

The nature of a public service appeal under ch 11, pt 6, div 4 of the Industrial Relations Act 2016

  1. [9]
    The Public Service and Other Legislation Amendment Act 2020 ('the Amendment Act') commenced operation on 14 September 2020.  The Amendment Act amended the IR Act and the PS Act in respect of public service appeals referred to in ch 7, pt 1 of the PS Act.  Section 197 of the PS Act now 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. [10]
    Section 562B(1) of the IR Act provides that the section applies to a public service appeal made to the Commission.  Section 562B(2) provides that the Commission must decide the appeal by reviewing the decision appealed against.  Section 562B(3) provides that the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable.
  1. [11]
    Sections 562B(2) and (3) of the IR Act replicate ss 201(1) and (2) of the PS Act prior to their deletion by the Amendment Act so as to ensure that the purpose of a public service appeal is to decide whether the decision appealed against was fair and reasonable.[2] For that reason, my view is that the principles applicable under those previous sections of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions under the IR Act.
  1. [12]
    I must decide the appeal by reviewing the decision appealed against.[3] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[4] An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision-making process associated therewith.[6]
  1. [13]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable[7] and the issue for my determination is whether the decision appealed against was fair and reasonable.[8]

The four allegations

  1. [14]
    By letter dated 15 June 2020, Ms Asmussen wrote to Mr de Villiers setting out four allegations concerning his conduct as a public service employee.

Allegation One

  1. [15]
    The first allegation was that between on or about 21 November 2019 and/or on or about 19 March 2020, on one or more occasions, Mr de Villiers did not meet his obligations under the Code to demonstrate respect to clients ('Allegation One').
  1. [16]
    Five particulars for Allegation One were given by Ms Asmussen.  Those particulars, and the particulars of the remaining three allegations, are set out below when I refer to the specific responses made by Mr de Villiers to each allegation and Ms Asmussen's decision about each allegation.
  1. [17]
    Ms Asmussen advised Mr de Villiers that:
  • in respect of Allegation One, he may have contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code, within the meaning of s 187(1)(f)(ii) of the PS Act, in that he may have contravened:
  • cl 1.1 of the Code, which relevantly provides:

1.1   Commit to the highest ethical standards

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

We will:

c.   engage with the community in a manner that is consultative, respectful and fair,[9]

'… and/or'

  • cl 1.5 of the Code, which relevantly provides:

1.5   Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

We will:

a.   treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own

Allegation Two

  1. [18]
    The second allegation was that on or about 3 April 2020, Mr de Villiers did not meet his obligations under the Code to demonstrate respect to colleagues ('Allegation Two').
  1. [19]
    Ms Asmussen advised Mr de Villiers that in respect of Allegation Two, he may have contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code, within the meaning of s 187(1)(f)(ii) of the PS Act, in that he may have contravened cl 1.5(a) of the Code.

Allegation Three

  1. [20]
    The third allegation was that Mr de Villiers did not meet his obligations under the Code to ensure diligence and public administration in that he did not see available patients on or about 3 April 2020, and/or on or about 30 and 31 March 2020, and/or on or about 6 February 2020 ('Allegation Three').
  1. [21]
    Ms Asmussen advised Mr de Villiers that in respect of Allegation Three, he may have:
  • performed his duties carelessly, incompetently or inefficiently within the meaning of s 187(1)(a) of the PS Act; '… and/or'
  • contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code, within the meaning of s 187(1)(f)(ii) of the PS Act, in that he may have contravened cl 2.1 of the Code which relevantly provides:

2.1  Commit to excellence in service delivery

Public service agencies are entrusted with public funds to develop and deliver services to the community on behalf of government.

We have a responsibility to:

a.   deliver services fairly, courteously, effectively, and ensure we use resources efficiently and economically

Allegation Four

  1. [22]
    The fourth allegation was that on or about 23 March 2020, Mr de Villiers did not meet has obligations under the Code to demonstrate respect to his employer and clients ('Allegation Four').
  1. [23]
    Ms Asmussen advised Mr de Villiers that in respect of Allegation Four, he may have contravened, without reasonable excuse, a standard of conduct applying under an approved code of conduct, namely the Code, within the meaning of s 187(1)(f)(ii) of the PS Act, in that he may have contravened cl 1.5(a) of the Code and cl 1.1(c)[10] of the Code. 
  1. [24]
    Ms Asmussen annexed to her letter the relevant documentation in relation to each of the allegations as well as the relevant extracts from the PS Act and the Code. Also included was the Department of Health, Human Resources Policy, E10.
  1. [25]
    Ms Asmussen gave Mr de Villiers 14 days from his receipt of her letter to respond to the allegations.

Mr de Villiers' response to the allegations and Ms Asmussen's decision

  1. [26]
    Mr de Villiers provided a written response dated 10 July 2020.  Mr de Villiers also provided verbal responses to two Health Service employees on 4 September 2020 after he reviewed certain clinical records.
  1. [27]
    Ms Asmussen's decision contained a statement of reasons about her decisions in relation to each allegation.

Allegation One

Allegation One a)

  1. [28]
    The first of the particulars of this allegation was:

 a)  Riskman Incident number 276368 from a patient at Pine Rivers:

"Peter de Villie (sic) was very arrogant, and I have never been spoken to like that before. I left there feeling very belittled. Also he gave me the most arrogant smile I have ever seen as I left. So I won't recommend him only the clinic. I hope never to see him again"

The incident was logged in Riskman on or about 30 January 2020 and the incident occurred on or about 21 November 2019. (Attachment Two)

  1. [29]
    Mr de Villiers denied that he acted arrogantly or smiled in an arrogant way to the patient.  Mr de Villiers stated that from his experience over the last 15 years in working with patients, a particular segment of patients might interpret a confident clinician as an arrogant clinician.
  1. [30]
    Mr de Villiers also referred to correspondence dated 31 March 2020 from the Australian Health Practitioner Regulation Agency ('AHPRA'), headed 'Notice of Board to take no further action' in which the relevant case manager stated: 'Mr de Villiers recognised that his communication style can be considered to be 'forthright' and that whilst some patients appreciate this candour, other patients may not.'
  1. [31]
    In her statement of reasons, Ms Asmussen stated that:
  • Mr de Villiers' response indicated no accountability for how his communication style contributed to how he was perceived; and
  • in his written response, Mr de Villiers did not offer the same insight that his communication style could be considered 'forthright' or is not appreciated by all patients and therefore any awareness gained from his dealings with AHPRA had been short lived, and he had little commitment to changing his communication style to suit his audience.

Allegation One b)

  1. [32]
    The second of the particulars of this allegation was:

 b)  Riskman Incident Number 270060 from a patient at Pine Rivers:

"A man I now know was Pieter De Villiers called me in and made me feel very intimidated when I entered the surgery."

"He then told me I didn't need a new bottom plate. I should had (sic) mentioned I had ulcers and have difficulty eating - as I have to take them out a lot to due to pain - but I was scared of his attitude."

"l asked if I was getting an alignment, and it was here he told me I didn't need anything done. I am 85 years of age 86 in January, and at this stage felt he would not listen to me about my ulcers."

The incident was logged on Riskman on or about 13 December 2019 and occurred on or about 22 November 2019. (Attachment Three)

  1. [33]
    Mr de Villiers submitted that it was very unreasonable for this patient to have accused him of making her feel intimidated when she admitted she forgot to wear her 'Vision Impaired badge.'
  1. [34]
    In her statement of reasons, Ms Asmussen stated that:
  • Mr de Villiers' response did not acknowledge that his interaction or communication with the patient could have been improved;
  • it was disrespectful for him to blame the patient for forgetting to wear her 'Vision Impaired badge'; and
  • it also appeared Mr de Villiers had little insight into how his actions made the patient feel intimidated.

Allegation One c)

  1. [35]
    The third of the particulars of this allegation was:

c)  Riskman Incident Number 279310 from a patient at Pine Rivers:

"As I still had a sore spot on the lower Gum, I returned to Pine rivers, where I told the Technician that they were the worst fitting set of teeth that I have ever had, and remarked that I was still suffering a reaction. His reply was mt (sic) teeth were made from the same Acrylic substance as before, that me and my mouth had fooled him, but that would not happen again, and that He knew what a reaction looked like, and I did not have one."

The incident was logged on Riskman on or about 18 December 2019 and was in relation to a complaint received which was dated 27 November 2019. (Attachment Three)

  1. [36]
    Mr de Villiers submitted, amongst other things, that he remembered the patient because the patient was actually rude towards him and came into his surgery very disgruntled.
  1. [37]
    Ms Asmussen stated that there was nothing else of note in his response which explained how or whether Mr de Villiers attempted to improve the patient's experience and, on that basis, she could only assess that the patient's perception was accurate.

Allegation One d)

  1. [38]
    The fourth of the particulars of this allegation was:

d)  Riskman Incident Number 282473 from a patient at Sandgate:

"I'm not confident of all of what he done to me. The first he done for me he actually blame me because he said I didn't really look at him straight."

The incident was logged on Riskman on or about 6 March 2020 and occurred on or about 17 February 2020. (Attachment Four)

  1. [39]
    Mr de Villiers, in his response, stated:

… that this patient was not very co-operative at the Centric appointment. After asking him numerous times, to turn his head to my side of the chair, and face me directly, he did turn his head, but then move (sic) his head back, facing down towards his feet. I explained like I normally do if patients, do not co-operate that it is crucial for them to face me directly for I need to mark, on the Maxillary wax rim, the midline.

The midline determined were (sic) all the artificial teeth will be set-up too. If this simple step marking the midline is incorrect the whole denture construction, thereafter, would be in vain.

Even after this explanation, at the next attempt, he did turn and face me but then immediately before I could mark, his face would return to face his feet. At this stage I was running out of ideas as to what more I can do or say. So as a last resort I admit, and probability (sic) in a slightly different tone said "if you don't co-operate with my instruction and the denture is a failure then it will be due to no fault of mine. And I will also note your non co-operative actions in my clinical notes."

  1. [40]
    Ms Asmussen stated that from Mr de Villiers' response and his admission of using a different tone, he appeared to have shown disrespect to the patient.

Allegation One e)

  1. [41]
    The last of the particulars of this allegation was:

 e)  Incident reported by Dental Officer at Pine Rivers:

On or about 19 March 2020, you saw a patient for a denture adjustment. The allegation is that you were extremely rude to the patient. She is not comfortable to see you again and she prefers to see a different clinician if possible next time.

The incident was reported by a Dental Officer on 23 March 2020 and occurred on or about 19 March 2020. (Attachment Five)

  1. [42]
    Mr de Villiers stated that he had no recollection of this denture adjustment.
  1. [43]
    It seems Ms Asmussen decided this part of Allegation One on the unchallenged weight of the evidence of the patient.
  1. [44]
    In respect of all of the particularised allegations contained in Allegation One, Ms Asmussen stated:

I acknowledge your responses, however your explanations appear to be argumentative and lacking accountability for your contribution to the complaints. They also offered very little insight into how you could or should change your behaviour when dealing with different clients. You did not deny any of the allegations, nor express regret or disappointment at how you have been perceived. There is also little awareness or remorse shown in your response about how you have interacted with these patients, and no commitment to improving your communication style in future.

It is on these bases that Allegation One is substantiated.

Allegation Two

  1. [45]
    The particulars of Allegation Two were:

Particulars:

The following particulars support the allegation:

  • It is alleged that on or about 3 April 2020, you advised an Admin Officer to cancel a patient born in 1933 as she was in a vulnerable group and our Prime Minster, Scott Morrison, has told them to stay home.
  • The allegation also states that you asked who was silly enough to book this vulnerable patient in during this virus pandemic.
  • The concern is that your tone was passive aggressive. (Attachment Six)
  1. [46]
    In his response, Mr de Villiers stated that:
  • this event occurred after advice was given about COVID-19, and that there was a definite atmosphere of fear and uncertainty amongst all staff members;
  • he was pretty sure there was 'no leadership' and that he found himself working with no supervision when, as a junior Prosthetist, he needed to be supervised;
  • he learned a non-clinician advised the reception or Senior Dentist to bring patients in to insert dentures and that the motive behind this reasoning was to show good figures for the laboratory and clinic, rather than taking patients' safety into consideration;
  • on the morning of 3 April 2020, he noted there was still one remaining patient for the afternoon, the patient was born in 1933 and that the patient fell into the vulnerable age group (to be affected by COVID-19), being a group the Prime Minister had strongly suggested stay home; and
  • on this day '… reception looked at me (as if I am the Senior at Pine Rivers), due to the lack of a Senior and leadership, whether I want (sic) them to cancel this patient, and from memory I advised that it is in the patient (sic) best interest' because the patient still had dentures to wear even though they needed replacing.
  1. [47]
    Ms Asmussen stated that:
  • the language Mr de Villiers displayed in his response demonstrated a lack of respect to and about his colleagues;
  • despite not having knowledge of the reason behind the decision to see patients on that day, Mr de Villiers surmised that his colleague's decision to do so disregarded patient safety; and
  • a more respectful way to respond to the allegation would have been for Mr de Villiers to base his response on factual evidence, rather than assumptions which painted a colleague in a negative light.
  1. [48]
    Ms Asmussen went on to conclude:

I would also like to draw your attention to your comments about working in Pine Rivers clinic every second Friday without supervision. You have access to a Principal Dentist, or Senior Dentist, within the Service, even if that person is not working directly alongside you. Your comments demonstrate a considerable lack of maturity in the workplace, and appear to be passive aggressive in nature.

Through the tone in your written response, Allegation Two is substantiated.

Allegation Three

  1. [49]
    The particulars of Allegation Three were:

Particulars:

The following particulars support the allegations:

  • It was reported that on or about 3 April 2020, after an exchange with a Senior Dental Assistant about PPE and hand hygiene requirement, you spent the day "seeing no patients sitting in the surgery". (Attachment Six)
  • It was reported that you did not see patients on or about 30 or 31 March 2020 (Attachment Seven)
  • Attachment Eight shows that patients were booked on 30 and 31 March 2020, and were cancelled
  • It has been reported that on or about 6 February 2020, you requested powdered gloves which were not available at Pine Rivers Dental Clinic.
  • You were advised that the Infection Control CNC would address your issues with the gloves and determine if there was another alternative available for you.
  • It was reported that you had refused to see patients until you directed (sic) to continue to see patients using the existing available gloves. (Attachment Nine)
  1. [50]
    In his response, Mr de Villiers stated that:
  • he did not see patients on 3 April 2020; and
  • he was not sure whether or not he saw patients on 30 and 31 March 2020, however, if patients were cancelled on those days, he did not cancel them.
  1. [51]
    Mr de Villiers then stated that on the morning of 6 February 2020, in front of his patient and a colleague:

[F]or the life of me, I could not get the first glove on to my hand.  I tried numerous times, to the point where it was embarrassing in front of the patient and the DA.  I put this down to the fact that the air conditioners haven't yet dried out the surgery for they have just been turned on, it was extraordinary (sic) humid.  This have (sic) never happened to me before in my career.  I tried and tried again to no avail.  I then went next door to my Line Manager Dr Yogitha Yalamanchili and physically showed her that I can't get a glove on my hand.  My patient was then asked to vacate my surgery and to please wait in the immediate reception, where my patient was then seen immediately by Dr Yogitha Yalamanchili.

  1. [52]
    Mr de Villiers stated that he then treated patients for the rest of the day, and that it was just his first patient that was treated by Dr Yalamanchili.
  1. [53]
    Ms Asmussen stated that:
  • the allegation was not that Mr de Villiers cancelled patients himself, but that he did not see patients;
  • the ISOH records for 30 and 31 March 2020 and for 3 April 2020, showing all patients with cancellation type 'DOC', proved that patients were not seen by Mr de Villiers on those days;
  • Mr de Villiers admitted that he did not see at least one patient on 6 February 2020 due to the difficulty he had in putting on the gloves; and
  • from Mr de Villiers' own written response and/or the evidence presented to him, Allegation Three was substantiated.

Allegation Four

  1. [54]
    The particulars of Allegation Four were:

Particulars:

The following particulars support the allegation:

  • It is alleged that, in a meeting with Kirsten Smith and Machaela Magennis on or about 23 March 2020, you worked at Queensland Health to "keep the bastards honest'.
  • It is also alleged that you said that some patients are "serial complainers"
  1. [55]
    Mr de Villiers, in his response, stated that:
  • he was not prepared to respond to the allegations unless he had his clinical notes on the ISOH program open in front of him;
  • he kept quoting out of his two textbooks, which he suspected, did not sit well with Ms Smith;
  • halfway through the meeting, Ms Smith stunned him by asking him what he was still doing here and that she did not ask him why he worked at Queensland Health;
  • initially his thoughts were that this was very disrespectful, but once he gathered his thoughts, he remembered that when he lived in New Zealand a journalist asked a Member of Parliament what he was still doing in Parliament and the reply was: 'l am here to keep the bastards honest'; and
  • he did not know why he quoted the politician, but he suspects he quoted the politician to divert from potential conflict and that the quote '… was completely taken out of context.'
  1. [56]
    Ms Asmussen stated:

In your response, you stated:

  • An admission to using the term "to keep the bastards honest." While I accept that you may have, as you stated, used it as your way to divert from potential conflict, the language used is not respectful to your employer. The context in which it was said is irrelevant in this matter, as the strong insinuation is that your colleagues are bastards and/or dishonest. That type of language is not acceptable or respectful in Queensland Health.
  • You have not denied that you said some patients are serial complainers. From the quotations provided from your text books in your response, I accept this as an admission that you did refer to some patients as serial complainers. That type of language is not acceptable or respectful in Queensland Health.

From your own written response, Allegation Four is substantiated.

  1. [57]
    By way of conclusion, Ms Asmussen stated that having considered Mr de Villiers' responses, she did not find they provided sufficient justification for her to make any determination other than that all the allegations were substantiated.
  1. [58]
    Ms Asmussen found that all the allegations had been substantiated and that Mr de Villiers had contravened the PS Act and the relevant provisions of the Code in respect of each allegation as alleged in her letter to him dated 15 June 2020.

Mr de Villiers' appeal submissions

  1. [59]
    Despite being given the opportunity to do so, Mr de Villiers made no submissions in support of his appeal.
  1. [60]
    Mr de Villiers merely submitted the exact written submissions he made to Ms Asmussen in response to her correspondence dated 15 June 2020.

The State's appeal submissions

  1. [61]
    After setting out the history to the disciplinary action taken against Mr de Villiers, the State submitted:

Substantiating Allegations.

  1. The Applicant was provided with detailed allegations and 14 days in which to provide a response to those allegations.
  1. The Service provided detailed reasons at Attachment 2 of correspondence dated 14 October 2020 (Attached to Applicants Appeal Notice) to the Applicant for substantiating each of the allegations and the consideration which was given including the Applicant's responses.
  1. The Applicant in his response to the allegations attached a letter from the Australian Health Practitioner Regulation Agency (AHPRA) dated 31 March 2020. The APHRA letter details an investigation undertaken following a complaint from a patient of the Applicant which is not one of the patient complaints detailed in the 4 current and substantiated allegations.
  1. The Applicant highlights that the Board (Dentistry) chose to take no further action regarding the complaint and that on page 4 of the AHPRA notice it states:

"In his submission, Mr de Villiers recognised that his communication style can be considered to be "forthright" and that while some patients appreciate this candour, other patients may not."

  1. It is also noted that further on page 4 and on page 5 of the AHPRA notice it is written (in part):

"With respect to the Board's concerns regarding his notifications history suggesting a pattern of concern, Mr de Villiers stated that these are his first notifications since April 2014... "

And

"The Board would however like to remind Mr de Villiers of his obligations to communicate respectfully with patients, especially when concerns are raised in relation to the treatment provided".

  1. [62]
    The State then referred to its previous attempts to correct similar or like behaviour on the part of Mr de Villiers.
  1. [63]
    The State concluded by submitting that:
  • Mr de Villiers has a long history of inappropriate conduct, including refusing to see patients and poor communications with fellow staff, management and patients;
  • the Health Service has attempted over several years to correct or improve Mr de Villiers' behaviour and communications with little lasting effect;
  • the disciplinary finding decision of Ms Asmussen was reached with full knowledge and consideration of Mr de Villiers' current substantiated allegations and the various previous attempts by the Health Service to improve his conduct and performance;
  • Mr de Villiers' written response to the allegations does not display any insight with regard to his actions or provide any confidence to the Health Service that the conduct will not continue; and
  • at all times, Mr de Villiers was afforded natural justice and due process such that the decision was fair and reasonable.

The decision was fair and reasonable other than in respect of one particularised allegation contained in Allegation Three and other than in respect of the entirety of Allegation Four

  1. [64]
    As referred to earlier in these reasons for decision, the decision a member of the Commission has to make, in an appeal of this nature, is whether the disciplinary findings were fair and reasonable.  Such a consideration involves the fairness or otherwise of the procedure that resulted in those findings being made, whether it was fair and reasonable for the decision-making to come to the findings of fact made and, once those facts are found, whether it was fair and reasonable that those facts, as found, fell within the relevant provisions of s 187 of the PS Act.

Allegation One a)

  1. [65]
    The allegation was that on or about 21 November 2019, Mr de Villiers was very arrogant towards a patient when speaking to the patient that the patient left feeling belittled.  This resulted in the complaint being made by the patient to the Health Service.
  1. [66]
    Mr de Villiers denied acting or smiling in an arrogant way and stated that some patients might interpret a confident clinician as an arrogant clinician.
  1. [67]
    The letter from AHPRA, which Mr de Villiers attached to his response to Ms Asmussen, concerned his conduct in 2018 and did not relate to the allegations the subject of Ms Asmussen's letter dated 15 June 2020.  In any event, that letter from AHPRA recorded Mr de Villiers recognising that his communications could be considered forthright which may not be appreciated by some patients.
  1. [68]
    It was open to Ms Asmussen, having regard to the complaint and Mr de Villiers' response to conclude that Mr de Villiers did behave in the way as alleged in the complaint by the patient.  On the material before Ms Asmussen, there was nothing unfair or unreasonable in the conclusion she came to about this matter.

Allegation One b)

  1. [69]
    Mr de Villiers did not deny the allegation concerning his interaction with the patient on or about 22 November 2019 which led to a complaint being made by the patient.
  1. [70]
    I do not understand why Mr de Villiers submitted that it was unreasonable for the patient to make the accusation she made, by referring to the fact the patient forgot to wear her 'Vision Impaired badge'.  The patient's complaint concerned Mr de Villiers' attitude towards her regarding her questions of the service that would be provided to her.
  1. [71]
    There is nothing in Mr de Villiers' response that would cause any concern to the veracity of the complaint of the patient.
  1. [72]
    On the material before Ms Asmussen, there was nothing unfair or unreasonable in the conclusion she came to about this allegation.

Allegation One c)

  1. [73]
    This allegation concerns a complaint by a patient, concerning his interaction with Mr de Villiers on or about 18 December 2019, that when discussing the patient's dentures, Mr de Villiers stated that '… me [the patient] and my mouth had fooled him [Mr de Villiers]' and that Mr de Villiers stated that the patient was not suffering from a reaction as alleged by the patient.
  1. [74]
    Having regard to Mr de Villiers' written response, he does not deny making the statements as alleged.  The substance of the complaint was the manner in which Mr de Villiers interacted with the patient regarding the patient's concerns about the patient's dentures.
  1. [75]
    Once again, on the material before Ms Asmussen, there was nothing unfair or unreasonable about the conclusion to which she came regarding this allegation.

Allegation One d)

  1. [76]
    This allegation concerned an interaction between Mr de Villiers and a patient that took place on or about 17 February 2020.  The complaint from the patient appeared to be that Mr de Villiers was to blame the patient, in respect of any problems with the construction of dentures for the patient, for not following Mr de Villiers' instruction at the time Mr de Villiers was taking the appropriate measurements for the construction of the dentures.
  1. [77]
    Having regard to Mr de Villiers' response referred to in paragraph [38] of these reasons, Mr de Villiers admitted saying, in a different tone, to the patient that if the patient did not cooperate with his instructions, the denture would fail and that it would not be his (Mr de Villiers') fault.
  1. [78]
    Whilst I appreciate that dealing with some clients, professional employees in the public service may have their levels of tolerance tested, there is still an obligation on the part of the public service officer to engage with the clients with courtesy and respect.
  1. [79]
    On Mr de Villiers' own response, the conclusion Ms Asmussen came to, in respect of this allegation, was one that was reasonably open to her.

Allegation One e)

  1. [80]
    Mr de Villiers did not dispute this allegation.  For that reason, it was open to Ms Asmussen to find that it was made out.
  1. [81]
    It seems to me in respect of Mr de Villiers' engagement with patients, he did not engage with them in a manner that was respectful and fair, or in a way that was professional, courteous and respectful.  For all these reasons, it was fair and reasonable for Ms Asmussen to make the findings of fact she made in relation to these allegations.
  1. [82]
    For the same reasons given immediately above in respect of the five sets of particulars concerning Allegation One, it was fair and reasonable for Ms Asmussen to find that Mr de Villiers contravened, without reasonable excuse, the standards of conduct set out in either cl 1.1 or cl 1.5 of the Code.

Allegation Two

  1. [83]
    There is a real dispute that Mr de Villiers spoke in a manner that was disrespectful of his colleagues in respect of his conclusion that his colleagues arranged for an elderly patient to attend the clinic on 3 April 2020.  Mr de Villiers admits that on that day, it was when the issues regarding COVID-19 and the risk to elderly persons from that virus became prominent.  Further, Mr de Villiers did not deny stating words to the effect of: 'Who was silly enough to book this vulnerable patient in during this virus pandemic.'
  1. [84]
    Again, while I appreciate, at that time, there may have been heightened levels of concern amongst employees working in public health services about the vulnerability of particular patients from COVID-19, that still did not excuse Mr de Villiers from abandoning the standards of conduct expected of him, through the Code, in dealing with his colleagues.
  1. [85]
    Mr de Villiers' conduct that day, having regard to his response to Ms Asmussen, appears to be based, in part, on an assumption that the patient in question was asked to attend the clinic on that day for the purposes of maintaining patient numbers as opposed to any concern about the health or risk to the patient.  Mr de Villiers provided no evidence to support his assumption.
  1. [86]
    For these reasons, it seems to me that Ms Asmussen's conclusion about this allegation was one that was fair and reasonable.
  1. [87]
    For all these reasons, it was fair and reasonable for Ms Asmussen to make the findings of fact she made in relation to this allegation.
  1. [88]
    For the same reasons, it was fair and reasonable for Ms Asmussen to find that, in respect of this allegation, Mr de Villiers contravened, without reasonable excuse, the standard of conduct set out in cl 1.5 of the Code.

Allegation Three

  1. [89]
    The principal allegation in respect of this matter is that on 30 or 31 March 2020 and on 3 April 2020, Mr de Villiers, of his own volition, did not see patients, when he had the ability to do so.
  1. [90]
    There is no dispute that Mr de Villiers did not see patients on 3 April 2020.  Further, his evidence was that he was not sure whether or not he saw patients on 30 and 31 March 2020.
  1. [91]
    On the evidence, it was open for Ms Asmussen to conclude that Mr de Villiers did not see patients on 30 and 31 March 2020 and on 3 April 2020.
  1. [92]
    On that basis, it was fair and reasonable to Ms Asmussen to conclude that Mr de Villiers performed his duties inefficiently within the meaning of s 187(1)(a) of the PS Act.
  1. [93]
    It seems to be, although it is not clear, that Ms Asmussen also found that in addition, or in the alternative, Mr de Villiers contravened cl 2.1 of the Code. As referred to above, cl 2.1 of the Code concerns the standard of conduct about a commitment to excellence in service delivery. It specifically provides that public service agencies are entrusted with public funds to develop and deliver services to the community on behalf of government. The responsibility to observe in complying with that standard of conduct, in respect of which Ms Asmussen alleged Mr de Villiers did not meet, was to '… deliver services fairly, courteously, effectively, and ensure we use resources efficiently and economically.' It seems to me that by Mr de Villiers failing to see patients on 30 and 31 March 2020 and on 3 April 2020, he failed to deliver services effectively.
  1. [94]
    I do not think it was fair and reasonable for Ms Asmussen to conclude that Mr de Villiers performed his duties carelessly, incompetently or inefficiently and, or in the alternative, contravened cl 2.1 of the Code, because he was unable to see at least one patient on 6 February 2020 because he was unable to put on surgical gloves.  Clearly, there was an issue with the surgical gloves Mr de Villiers was attempting to use on 6 February 2020.  From my reading of the material, it did not appear to be the case that Mr de Villiers refused to treat other patients on 6 February 2020.
  1. [95]
    For all these reasons, it was fair and reasonable for Ms Asmussen to make the findings of fact she made in relation to this allegation, other than the particular allegation concerning 6 February 2020.
  1. [96]
    For the same reasons, other than the particular allegation concerning 6 February 2020, it was fair and reasonable for Ms Asmussen to find, in respect of this allegation, that Mr de Villiers:
  • performed his duties inefficiently within the meaning of s 187(1)(a) of the PS Act; or
  • contravened s 187(1)(f)(ii) of the PS Act in respect of cl 2.1 of the Code.

Allegation Four

  1. [97]
    Mr de Villiers admitted saying to Ms Smith words to the effect of 'I'm here to keep the bastards honest'.  Further, Mr de Villiers did not deny that he said some patients were serial complainers.
  1. [98]
    Ms Asmussen found that on her findings of fact, Mr de Villiers failed to treat co-workers with courtesy and respect because he insinuated that his colleagues are bastards and/or dishonest.  It seems in respect of this finding, Ms Asmussen found Mr de Villiers contravened, without reasonable excuse, cl 1.5 of the Code.
  1. [99]
    Ms Asmussen also found that by Mr de Villiers saying that some patients were serial complainers, that type of language was not acceptable or respectful, and that she found Mr de Villiers contravened, without reasonable excuse, cl 1.1 of the Code.
  1. [100]
    Whilst Ms Asmussen's findings of fact in relation to the particulars of this allegation were fair and reasonable, I cannot conclude that it was fair and reasonable that Mr de Villiers, in making these two comments, contravened, without reasonable excuse, either of the above-mentioned clauses of the Code.
  1. [101]
    By Mr de Villiers simply saying to a colleague the reason he was at work was to '… keep the bastards honest', such a statement cannot reasonably lead to a conclusion that Mr de Villiers was strongly insinuating that the colleagues to whom he was speaking on 23 March 2020, or any other colleagues for that matter, were bastards or were dishonest.  The statement made was a broad statement and was not directed to any identifiable individual or identifiable group of individuals.  It was simply, in my view, unfair and unreasonable for Ms Asmussen to find that Mr de Villiers was strongly insinuating that all of his colleagues were bastards and were dishonest.
  1. [102]
    Ms Asmussen did not particularise the identity of the persons to whom Mr de Villiers said that some patients were serial complainers.  I assume he made this comment to Ms Smith and to Ms Machaela Magennis who were present when he said he was at work to '…keep the bastards honest' on 23 March 2020.  However, it was not alleged that he made the statement to a particular patient or patients.  The context in which he was alleged to have made the statement to Ms Smith and Ms Magennis was not particularised.  No evidence was given about any offence taken by any person about Mr de Villiers making that statement.
  2. [103]
    For the above reasons, it was not fair and reasonable for Ms Asmussen to find that Mr de Villiers failed to treat co-workers with courtesy and respect because he insinuated that his colleagues are bastards and/or dishonest.
  1. [104]
    Similarly, it was not fair and reasonable for Ms Asmussen to find that Mr de Villiers contravened, without reasonable excuse, cl 1.1 of the Code, when he did not make the second comment to a patient or patients.

The uncertainty of the provisions of the Code and of the Public Service Act 2008 Mr de Villiers was found to have contravened in respect of Allegations One and Three

  1. [105]
    In her decision, Ms Asmussen found that in respect of Allegation One, Mr de Villiers had contravened s 187(1)(f)(ii) of the PS Act because he contravened cl 1.1 '… and/or' cl 1.5 of the Code.
  1. [106]
    Furthermore, it is unclear to me, in respect of Ms Asmussen's decision in relation to Allegation Three, whether she found Mr de Villiers had contravened both s 187(1)(a) of the PS Act and s 187(1)(f)(ii) of the PS Act.  In respect of this allegation, Ms Asmussen's decision actually states:

Allegation 3:   That you did not meet your obligations under the code of conduct to ensure diligence in public administration in that you did not see available patients on or around 6 April 2020, 30 and 31 March 2020 and/or 6 February 2020.

This is grounds for discipline under Section 187(1)(a) of the Public Service Act because:

  • You performed your duties carelessly, incompetently or inefficiently, specifically:

Clause 2.1 of the code which provides as follows:

Commit to excellence in service delivery

Public service agencies are entrusted with public funds to develop and deliver services to the community on behalf of government.

We have a responsibility to:

(a)  deliver services fairly, courteously, effectively, and ensure we use resources efficiently and economically.

  1. [107]
    As can be seen, in respect of Ms Asmussen's decision about Allegation One, it is not clear whether she has decided Mr de Villiers contravened s 187(1)(f)(ii) of the PS Act in that he contravened, without reasonable excuse, cl 1.1 or cl 1.5 of the Code or both.  This is because of the conjunction 'and/or' that has been used.  On a plain reading of this aspect of Ms Asmussen's decision, Mr de Villiers cannot know, in formulating his response to the proposed disciplinary action, whether he has been found to have contravened cl 1.1 or cl 1.5 of the Code, or both. Such lack of attention to detail, particularly in relation to a decision inviting an employee to respond as to why he or she should not have their employment terminated, is not fair and reasonable.
  1. [108]
    Similarly, Ms Asmussen's decision in relation to Allegation Three about the provisions of the PS Act she found Mr de Villiers contravened, particularly when regard is had to the allegations as particularised in her letter dated 15 June 2020, is incapable of any reasonable interpretation.  It is not clear whether Ms Asmussen has found that Mr de Villiers contravened s 187(1)(a) of the PS Act and also that he contravened s 187(1)(f)(ii) because she found he contravened, without reasonable excuse, cl 2.1 of the Code.  This is because, in coming to her conclusion that Mr de Villiers contravened s 187(1)(a) of the PS Act, she refers to cl 2.1 of the Code. Yet, in her letter dated 15 June 2020, in respect of Allegation Three, Ms Asmussen alleged that Mr de Villiers may have contravened both sections of the PS Act by the use of the conjunction '… and/or.'  Again, such lack of attention to detail is not fair and reasonable in respect of an employee who is required to respond as to why his employment should not be terminated.  

Conclusion

  1. [109]
    Pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable.  Mr de Villiers contended that Ms Asmussen's decision was unfair and unreasonable.
  1. [110]
    For the reasons given above, Ms Asmussen's decision, in relation to the allegations, was fair and reasonable other than in respect of:
  • the decision concerning Mr de Villiers' conduct on 6 February 2020 as particularised in Allegation Three; and
  • the decision concerning the entirety of Allegation Four.
  1. [111]
    However, the equivocal nature of Ms Asmussen's decision about the specific provisions of the Code she found Mr de Villiers contravened in respect of Allegation One and the specific provisions of the PS Act she found Mr de Villiers contravened in respect of Allegation Three, was not fair and reasonable.  There is no difficulty in respect of the section of the PS Act Ms Asmussen found Mr de Villiers contravened concerning Allegation Two. 
  1. [112]
    The result is that Ms Asmussen's decision should be set aside, the matter should be returned to Ms Asmussen with a copy of this decision with directions that her decision should be reissued containing the substantiated allegations findings as I have found to be fair and reasonable and where Ms Asmussen is specific, in respect of Allegation One, the clauses of the Code she finds Mr de Villiers contravened, and, in respect of Allegation Three, the sections of the PS Act she finds Mr de Villiers contravened.

Order

  1. [113]
    I make the following order:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016:

  1. (a)
    I set aside the decision appealed against; 
  1. (b)
    I return the matter to the decision maker with a copy of this decision;
  1. (c)
    I direct that the decision maker reissue the decision to the Appellant containing only the substantiated allegations as I have found to be fair and reasonable, namely that:
  1. (i)
    all the particularised allegations contained in Allegation One are substantiated;
  1. (ii)
    all the particularised allegations contained in Allegation Two are substantiated;
  1. (iii)
    all the particularised allegations contained in Allegation Three are substantiated other than the particularised allegation concerning the Appellant's conduct on 6 February 2020; and
  1. (iv)
    all the particularised allegations contained in Allegation Four are not substantiated; and
  1. (d)
    I further direct that the decision maker, in reissuing the decision to the Appellant as provided for in paragraph (c) of this Order, unequivocally specifies:
  1. (i)
    the clause or clauses of the Code of Conduct for the Queensland Public Service the decision maker finds the Appellant contravened in respect of the substantiated allegations contained in Allegation One; and
  1. (ii)
    the section or sections of the Public Service Act 2008 the decision maker finds the Appellant contravened in respect of the substantiated allegations contained in Allegation Three.

Footnotes

[1]Public Service Act 2008 s 194(1)(eb).

[2]Explanatory Notes, Public Service & Other Legislation Amendment Bill 2020 (Qld), 6.

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

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

[5]In the sense used in the legal categories of appeals - Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[6]Ibid.

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

[8]Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60] to [61] (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.

[9]This was incorrectly referred to as being part of cl 2.2 of the Code in Ms Asmussen's letter dated 15 June 2020. This was corrected in Ms Asmussen's decision letter dated 14 October 2020.

[10]This was incorrectly referred to as being part of cl 2.2 of the Code in Ms Asmussen's letter dated 15 June 2020. This was corrected in Ms Asmussen's decision letter dated 14 October 2020.

Close

Editorial Notes

  • Published Case Name:

    de Villiers v State of Queensland (Queensland Health)

  • Shortened Case Name:

    de Villiers v State of Queensland (Queensland Health)

  • MNC:

    [2021] QIRC 7

  • Court:

    QIRC

  • Judge(s):

    Member Merrell DP

  • Date:

    08 Jan 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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