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- Unreported Judgment
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
Hawea v State of Queensland (Queensland Health)  QIRC 008
State of Queensland (Queensland Health)
Public Service Appeal - Disciplinary decision
8 January 2021
On the papers
Code of Conduct for the Queensland Public Service, cl 1.5
Industrial Relations Act 2016, s 451, s 562C and s 566
Public Service Act 2008 s 187, s 188, s 197, s 201 and s 203
Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203
Reasons for Decision
- Ms Brenda Hawea is currently employed in the position of Medical Imaging Assistant, Department of Medical Imaging, in the Metro North Hospital and Health Service ('the Health Service'). Ms Hawea is employed by the State of Queensland through Queensland Health.
- By letter dated 13 October 2020, Ms Vanessa Barclay, Operations Director, Metro North Medical Imaging of the Health Service, advised Ms Hawea that, pursuant to s 188(1) of the Public Service Act 2008 ('the PS Act'), she was imposing on Ms Hawea the disciplinary action of a reprimand ('the decision').
- By appeal notice given to the Industrial Registrar on 6 November 2020, Ms Hawea, pursuant to ch 7, pt 1 of the PS Act, appealed against the decision. Section 197 of the PS Act provides that an appeal under ch 7, pt 1 of the PS Act is to be heard and determined under ch 11 of the Industrial Relations Act 2016 ('the IR Act') by the Queensland Industrial Relations Commission. The principles applicable under the former s 201 of the PS Act, about the nature of such public service appeals, apply to the equivalent provisions in ss 562B(2) and 562B(3) of the IR Act.
- I must decide the appeal by reviewing the decision appealed against. Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears. An appeal under ch 11, pt 6, div 4 of the IR Act is not by way of rehearing, but involves a review of the decision arrived at and the decision-making process associated therewith. The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable. The issue for my determination is whether the decision appealed against was fair and reasonable.
- By order dated 9 November 2020, the decision was stayed pursuant to s 566(1) of the IR Act until the appeal is decided and/or finalised. The parties exchanged written submissions and pursuant to s 451(1) of the IR Act, no hearing was conducted.
- In my view, for the reasons that follow, the decision was fair and reasonable and, for that reason, pursuant to s 562C(1)(a) of the IR Act, I confirm the decision.
- Ms Hawea commenced employment with the Health Service on 19 March 2012 and is a permanent full-time employee. On 2 March 2015, Ms Hawea was appointed as a Medical Imaging Assistant, classification level OO3, at the Royal Brisbane and Women's Hospital.
- By letter dated 1 April 2020, Ms Barclay invited Ms Hawea to respond to an allegation that, if accurate, may have amounted to grounds for Ms Hawea to be disciplined under s 187 and s 188 of the PS Act. The allegation was that between November 2019 and early 2020, Ms Hawea engaged in disrespectful and/or hostile communication and/or behaviour towards Mr Kai Becks. Ms Barclay's letter gave extensive particulars for the allegation, attached relevant documentation in respect of those particulars and explained why the events described in the particulars, if true, may give rise to a contravention of s 187(1)(f) of the PS Act. In particular, it was alleged that if the allegation was proven on the balance of probabilities, Ms Hawea would have contravened cl 1.5 a., b. or c. of the Code of Conduct for the Queensland Public Service ('the Code').
- Ms Barclay invited Ms Hawea to respond to the allegations in writing. By an undated letter received by Ms Barclay on 30 April 2020, Ms Hawea responded to the allegation concerning Mr Becks and denied the allegations of fact made against her as contained in the particulars to the allegation.
- By letter dated 26 June 2020, Ms Barclay informed Ms Hawea that, having regard to the information available to her, including Ms Hawea's response, she found the allegation was substantiated. Attached to Ms Barclay's letter was a statement of reasons for her decision. In that same letter, Ms Barclay informed Ms Hawea that she was currently giving consideration to imposing the disciplinary penalty of a reprimand and invited Ms Hawea to respond to that proposed disciplinary penalty.
- Ms Hawea did not appeal against the disciplinary finding decision contained in Ms Barclay's letter dated 26 June 2020.
- By letter dated 17 July 2020, the Australian Workers' Union of Employees, Queensland ('the AWU'), responded on Ms Hawea's behalf. In the correspondence, the AWU relevantly stated:
The AWU submits that the evidence provided to the decision-maker to substantiate the allegation that "Ms Hawea breached the Qld Public Service Code of Conduct", does not allow them to reach a decision, that it was more probable than not, that the specific allegations occurred.
In relation to allegation 1:
• the AWU submits that there is no corroborating evidence Ms Hawea engaged in hostile and disrespectful behaviour towards Mr Becks. In most of the examples provided by the employer, there is no clear evidence that any interaction occurred between Ms Hawea and Mr Becks.
There is no direct evidence or witness testimony that Ms Hawea made any of the statements to Mr Becks asserted by the complainant. The AWU notes that in Ms Hawea's initial response letter she refuted the allegations made against her.
IMs (sic) Hawea did not concede she was "aggressive and loud" in her communication, she stated that it was "unfortunate that Mr Becks feels that this was aggressive and loud…". Ms Hawea has made statements in her initial response that indicate she is self aware of her communication style and is making attempts to continuously improve, which should be considered a positive personal attribute.
The AWU points out that Ms Hawea has refuted the allegations made against her, and there is no corroborating evidence that Ms Hawea engaged in hostile and disrespectful behaviour towards Mr Becks. Ms Hawea was not asked to respond to any previous workplace allegations, nor should any historical concerns enter into any decision making in this matter.
To also suggest that the allegations made against Ms Hawea have been "easily observed by patients and members of the public" and "also places the Service's reputation into disrepute" is without foundation.
There is no evidence that any effort has been made at a local level, to resolve any of the matters raised by Mr Becks.
The AWU believes the matters raised by Mr Becks to be mostly trivial in nature, and more appropriately dealt with via one on one conciliation at the time of the alleged incidents. In your letter of 26 June 2020 you state "where you are unable to appropriately resolve a matter directly with a co-worker, it is my expectation that you will attempt to resolve it in discussion with your immediate supervisor".
The AWU contests that this is the most appropriate way to deal with these matters and the same process should be applied to Ms Hawea.
 By letter dated 13 October 2020, Ms Barclay informed Ms Hawea that, having considered all the information in relation to the matter, including the response on Ms Hawea's behalf by the AWU, she was imposing on Ms Hawea the disciplinary action of a reprimand. In doing so, Ms Barclay gave her rationale for her decision to impose a reprimand. After setting out, in some detail, the response on behalf of Ms Hawea by the AWU, Ms Barclay stated:
In respect to Mr Cassell's statement, "there is no clear evidence that any interaction occurred between Ms Hawea and Mr Becks", my letter to you dated 1 April 2020, provided supporting documentation to the allegation. This documentation included the complaint, a witness file note and timesheet records indicating you were working at the times specified in the complaint. Also, in your response dated 30 April 2020, you confirmed that the specific interactions did occur.
I acknowledge that you are aware of your communication style and are making attempts to continuously improve, however these are not isolated incidents. You have been warned on three separate occasions in respect to your workplace communication and behaviour, on 8 December 2017, 29 March 2018 and 19 October 2018.
In combination with your most recent written warning of 19 October 2018, you were advised that if "you fail to treat colleagues with courtesy and respect in the future, all warnings and previous actions will be taken into consideration in determining an appropriate course of action."
Further to the three written warnings you have received, members of the Medical Imaging management team have met with you on numerous occasions to resolve informal complaints and provide additional support and feedback with respect to your interactions with colleagues.
Despite the many written warnings and informal resolution processes, you have again failed to interact appropriately with a colleague. I consider this to be a serious matter and am of the view that your conduct and behaviour in this instance to be short of what is expected under the Code of Conduct and what I expect from you as a MNHHS employee.
I would like to reiterate that it is my expectation you reflect the Metro North values of respect, teamwork, integrity, compassion and high performance in everything you do.
Based on this, believe the disciplinary action of a reprimand is reasonable and appropriate in the circumstances.
Ms Hawea's grounds of appeal and submissions
- In her appeal notice, Ms Hawea set out the following grounds for her appeal against the disciplinary decision:
- the decision to issue a reprimand is not fair and reasonable in all the circumstances;
- the Health Service has erred in its decision to issue a reprimand, as she did not engage in the conduct as alleged;
- if she was found to have engaged in the conduct as alleged, the decision to issue a reprimand is disproportionate to the conduct; and
- if she was found to have engaged in the conduct as alleged, the decision to issue a reprimand is harsh in all the circumstances.
- Ms Hawea seeks an order that the reprimand be set aside.
- The AWU made submissions, on behalf the Ms Hawea, in support of her appeal.
- The AWU submitted that:
- throughout the disciplinary process, Ms Hawea claimed that the conduct as alleged did not occur and made the contention that there was no corroborating evidence to suggest that the conduct as alleged occurred;
- Ms Hawea has denied that she acted in the manner as alleged and has sought to explain her version of events at all times throughout the disciplinary process;
- Ms Hawea's version of events presents a reasonable, subjective account of what happened on the incident in question, and that her version of events should have been preferred to those put forward in the complaint about her alleged conduct;
- as such, it was not open for the decision maker to determine on the balance of probabilities that the conduct occurred;
- the Health Service has erred in its decision to issue a reprimand, as Ms Hawea did not engage in the conduct as alleged;
- if the Commission determines to accept the view of the Health Service and accepts that Ms Hawea did engage in the conduct as alleged, the decision to issue a reprimand is disproportionate to the conduct alleged;
- the conduct, if able to be established, does not warrant disciplinary action, should have been dealt with at a local level by management and should not have been escalated to a disciplinary matter; and
- if Ms Hawea is found to have engaged in the conduct as alleged, the decision to issue a reprimand is harsh in all the circumstances.
The Health Service's submissions
- The Health Service relevantly submitted that:
- since 8 November 2016, the Health Service has maintained file notes of management conversations with Ms Hawea regarding concerns raised about Ms Hawea's behaviour, communication and conduct;
- on 8 December 2017, Mr Mathew Gordon, Radiographer Assistant Director, wrote to Ms Hawea stating '… despite previous conversations where I have reminded you that this behaviour will not be tolerated in the workplace, you continue to exhibit inappropriate behaviour towards your co-workers' and then directed Ms Hawea to attend 'Dealing with Difficult Situations' training;
- on 28 February 2018, Mr Gordon wrote to Ms Hawea following receipt of further complaints related to Ms Hawea's behaviour towards colleagues within the Medical Imaging Department providing 14 days for Ms Hawea to respond, to which she did respond;
- on 29 March 2018, Mr Gordon wrote to Ms Hawea advising of the decision:
– to apply a non-disciplinary warning;
– to commence a 3-month Performance Improvement Plan ('PIP') targeting expectations of the Health Service regarding professional manner, appropriate communications and behaviour by Ms Hawea when interacting with all employees and patients; and
– that the PIP would include additional training and support to assist Ms Hawea with her communication skills;
- the PIP was undertaken with Ms Hawea between 7 May 2018 and 29 July 2018 with a final assessment meeting held on 24 August 2018 detailing that another complaint, regarding Ms Hawea's behaviour, had been received during the PIP period and subsequently the PIP '… was failed';
- on 19 October 2018, Ms Barclay wrote to Ms Hawea regarding the failed PIP, advised of her decision to apply a non-disciplinary warning highlighting that Ms Hawea had received two warnings and further advised that should Ms Hawea fail to treat colleagues with courtesy and respect in the future, all warnings and previous actions would be taken into consideration in determining an appropriate course of action; and
- in all of these circumstances, including the significant history of similar inappropriate conduct, the decision to move to a discipline process and to issue a reprimand is fair and reasonable.
The disciplinary decision was fair and reasonable
- As referred to earlier in these reasons for decision, Ms Hawea did not appeal against the disciplinary finding decision made by Ms Barclay in her letter to Ms Hawea dated 26 June 2020.
- The decision the subject of the appeal that I am to review is the decision made by Ms Barclay dated 13 October 2020 imposing the disciplinary penalty of a reprimand against Ms Hawea. My task is to determine whether the decision, and the decision-making process associated with the decision, were fair and reasonable.
- The particulars of the allegation, the subject of the disciplinary finding made against Ms Hawea, were:
1.1 Mr Kai Becks, Medical Imaging Assistant, Medical Imaging department at RBWH states that on 22 November 2019, he was in the Patient Care Area (PCA) to locate two patients. Mr Becks states that you entered the area and said to him words to the effect "what are you doing here?" in a loud, hostile and accusing tone. This made Mr Becks feel uncomfortable (Attachment 1).
1.2 Mr Becks states that on 9 January 2020, you said words to the effect "someone hasn't done the linen like they were supposed to, so I guess I'll do it then" in a loud tone. You made this comment in the presence of co-workers and a team leader which caused Mr Becks to feel embarrassed (Attachment 1).
1.3 Mr Becks states that on 14 January 2020, you said to him words to the effect "You know you are supposed to ask the other person when you have a shift swap" in a loud tone. Mr Becks states that you said this in the presence of a patient which caused Mr Becks to feel embarrassed. Mr Becks also states you were not directly involved in the shift swap situation (Attachment 1).
1.4 On 24 January 2020, the Medical Imaging work area supported a charity-related free dress day which Mr Becks participated in (Attachment 1).
1.5 Mr Becks states that at 11:55am on 24 January 2020, he passed you in a Medical Imaging corridor and you said to him words to the effect "oh my God, seriously, oh my God" while shaking your head. You continued to walk past Mr Becks and then again repeated your comment and shook your head again. This made Mr Becks feel uncomfortable and he felt you were indicating that he looked ''awful"(Attachment 1).
1.6 Mr Becks states that at 1:20pm on 24 January 2020, he was on his way to put a dirty linen bag away when you passed him and said to him words to the effect "are you seriously wearing that to work?" and then stormed off. This made Mr Becks feel uncomfortable (Attachment 1).
1.7 Mr Becks states that at 3:20pm on 24 January 2020, he was walking along the corridor near the PCA, Mr Becks states that a co-worker from Patient Support Services (PSS) made a complimentary comment about his clothing. Mr Becks states that you then said to the PSS employee words to the effect that Mr Becks' clothing was "not appropriate" and it "wasn't even Australian themed". Mr Becks states that you made these comments in a loud and aggressive tone and that you were in close proximity to the outpatient waiting area and inpatient waiting area. Mr Becks states that he felt singled out and harassed by you (Attachment 1).
1.8 Ms Serani Drahm, Medical Imaging Assistant, Medical Imaging Department, RBWH, states that on 24 January 2020, you said to her words to the effect "Have you seen what Kai is wearing?" Ms Drahm states that from the tone you used, she interpreted that you did not like Mr Beck's outfit (Attachment 2).
1.9 Your timesheet records indicate you worked on 22 November 2019, 9 January 2020, 14 January 2020 and 24 January 2020 (Attachment 3, 4 and 5).
- Ms Barclay found these facts to be substantiated and further found, on the basis of those facts, that Ms Hawea contravened, without reasonable excuse, cl 1.5 of the Code.
- In its submissions, the Health Service points to the history of Ms Hawea's conduct in dealing with her co-workers. This includes, in March 2018, the application of a non-disciplinary warning and the commencement of the 3-month PIP and, following Ms Hawea's failure to successfully complete the PIP, the application, in October 2018, of a further non-disciplinary warning. The documentation supporting these facts, as asserted by the Health Service were annexed to the submissions filed by the Health Service. Ms Hawea did not, make any attempt, following those submissions being served on her, to dispute those facts or to dispute the authenticity of the documents annexed to the Health Service's submissions. For these reasons, there is no reason for me to doubt those facts as asserted by the Health Service.
- In isolation, the disciplinary findings by Ms Barclay are not particularly serious and, viewed in isolation, it could be the case that the decision to take disciplinary action against Ms Hawea, for her conduct towards Mr Becks in November 2019 and in January 2020, was unfair and unreasonable in that it should have been dealt with by way of management action as opposed to disciplinary action.
- However, as referred to above, Ms Hawea has a history in respect of inappropriate conduct towards her co-workers going back to 2017 which has been attempted to be corrected by the management of the Health Service by way of management action through non-disciplinary action, a PIP and training. That management action, in an endeavour to assist Ms Hawea to correct her conduct towards her co-workers has not been successful. Ms Barclay found that Ms Hawea's conduct towards Mr Becks in November 2019 and in January 2020 amounted to a contravention of cl 1.5 of the Code. That conduct is similar to the conduct which had earlier resulted in the non-disciplinary action, the PIP and the training being undertaken in respect of Ms Hawea. That management action had not resulted in any amendment to Ms Hawea's conduct towards her co-workers prior to her impugned conduct towards Mr Becks.
- The previous attempts by the Health Service to address Ms Hawea's conduct in the workplace towards her co-workers was referred to in the reasons given by Ms Barclay for her decision about imposing the disciplinary action of a reprimand.
- As referred to above, Ms Hawea's conduct towards Mr Becks is not particularly serious. However, having regard to Ms Hawea's history of conduct towards her co-workers, the unsuccessful attempts by the management of the Health Service to amend her conduct and the nature of her conduct towards Mr Becks, a reprimand, in all those circumstances, was fair and reasonable.
- Specifically, the imposition of a reprimand was fair and reasonable in that, although it is the most minor form of disciplinary action that could be taken against Ms Hawea, its purpose is to act as a greater deterrent to Ms Hawea, against acting in a similar nature in the future, compared to the earlier non-disciplinary warnings.
- For the reasons given above, the disciplinary action decision was fair and reasonable.
- The decision appealed against is confirmed.
- To avoid any doubt, the order staying the decision appealed against, made on 9 November 2020, is revoked.
- I make the following orders:
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.
- Pursuant to s 566(1)(b) of the Industrial Relations Act 2016, the stay of the decision appealed against made on 9 November 2020, is revoked.
Morison v State of Queensland (Department of Child Safety, Youth and Women)  QIRC 203, - (Deputy President Merrell).
Industrial Relations Act 2016 s 562B(2).
Morison (n 1) .
Industrial Relations Act 2016 s 562B(3).
Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service  QSC 252,  to  (Byrne SJA) as to the former, equivalent provisions in s 201 of the Public Service Act 2008.
- Published Case Name:
Hawea v State of Queensland (Queensland Health)
- Shortened Case Name:
Hawea v State of Queensland (Queensland Health)
 QIRC 8
08 Jan 2021