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Vivian v State of Queensland (Queensland Health)[2022] QIRC 1

Vivian v State of Queensland (Queensland Health)[2022] QIRC 1

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Vivian v State of Queensland (Queensland Health) [2022] QIRC 001

PARTIES: 

Vivian, Patricia Claire

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/294

PROCEEDING:

Public Service Appeal - Fair treatment decision

DELIVERED ON:

7 January 2022

MEMBER:

Merrell DP

HEARD AT:

On the papers and a mention on 18 November 2021

DATES OF WRITTEN

SUBMISSIONS:

Respondent's written submissions filed on 16 September 2021 and Appellant's written submissions filed on 22 October 2021

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appellant employed as a Mental Health Worker in the Townsville Hospital and Health Service at Charters Towers – offer to complete a graduated return to work program and a performance improvement plan in Townsville accepted by the appellant – appellant commenced grievance against decision that she complete the graduated return to work program in Townsville and that certain leave she used be reinstated – decision confirming the appellant's graduated return to work program be completed in Townsville and that the appellant's leave would not be reinstated – fair treatment appeal against decision – decision fair and reasonable – decision appealed against confirmed

LEGISLATION:

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

CASES:

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

Reasons for Decision

Introduction

  1. [1]
    Ms Patricia Vivian is employed as a Mental Health Worker within the Townsville Hospital and Health Service ('the Health Service') and is employed at the Charters Towers Community Mental Health Service ('CTCMHS') which is part of the Mental Health Service Group ('MHSG'). Ms Vivian is employed by the State of Queensland and has been employed at the CTCMHS since 2012 as a full-time employee.
  1. [2]
    Ms Vivian appeals against two parts of the decision of Mr Stephen Eaton, Chief Operating Officer of the Health Service, dated 27 July 2021 ('the decision'). The decision determined a grievance submitted by Ms Vivian dated 24 May 2021. The first part of the decision appealed against was the decision that Ms Vivian was to continue a graduated return to work program ('GRTWP') in Townsville in the Homeless Health Outreach Team ('HHOT') and not in Charters Towers as requested by her in her grievance. The second part of the decision appealed against was that paid leave used by Ms Vivian, since 26 February 2021, would not be reinstated as requested by her in her grievance.
  1. [3]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[1]
  1. [4]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[2]

Background

  1. [5]
    The following background comes from the submissions made by Ms Vivian and by the Health Service and from further submissions made by the parties during the mention of this matter that I held on 18 November 2021. Where there is a dispute about some of this background, I have referred to that dispute.

The Wigan review

  1. [6]
    The Health Service submits that, in 2017/2018, a review, known as the 'Wigan Review', was undertaken by the Health Service into the CTCMHS and the treatment provided to patients that were case managed by Ms Vivian from 1 February 2016. That review determined that there were concerns with Ms Vivian's clinical practice and provided a number of recommended actions. In June 2018, Ms Vivian was provided with the relevant material from the Wigan Review and participated in a discussion around the implementation of the recommended actions, including that Ms Vivian participate in a Performance and Development Plan ('PADP').
  1. [7]
    In May 2019, Ms Vivian attended a review of her PADP in which it was discussed that she had not achieved the key performance indicators and that there were still a number of outstanding items that she had not completed.
  1. [8]
    In July 2019, Ms Vivian's supervisors met with her to discuss the implementation of a Performance Improvement Plan ('PIP') as her performance had not improved. The concerns identified regarding Ms Vivian's performance included:
  • clinical judgement and assessment;
  • completion of work tasks in a timely manner;
  • contact and client follow-up according to acuity;
  • acceptance and completion of referral in a timely manner; and
  • failure to complete clinical supervision duties.

The PIP

  1. [9]
    As a consequence, in July 2019, the MHSG required Ms Vivian to participate in a PIP due to concerns with her clinical performance.
  1. [10]
    In her submissions in reply filed on 22 October 2021, Ms Vivian disputes the allegations about her work performance, as summarised immediately above, and submits that she was never given the opportunity to address those concerns and that no evidence had been offered to support the allegations. Ms Vivian has always contended that there was no proper basis for her to be subject to a PIP.
  1. [11]
    However, there is no dispute that the PIP formally commenced on 21 June 2021 when Ms Vivian was working at the HHOT.

Ms Vivian's absence on leave

  1. [12]
    On 12 August 2019, Ms Vivian commenced leave due to what she describes as her '… deteriorating physical and mental health' and that in November 2019 she sought counselling for the treatment of post-traumatic stress disorder and chronic depression.
  1. [13]
    On 2 December 2019, Ms Vivian made a workers' compensation claim with WorkCover Queensland. The injury was post-traumatic stress disorder and an anxiety disorder. That claim was approved by WorkCover.

Ms Vivian's recommencement of work at the CTCMHS on a GRTWP

  1. [14]
    On 6 February 2020, Ms Vivian commenced back at work on a GRTWP at the CTCMHS which concluded on 19 June 2020. Ms Vivian was then off work on workers' compensation until 26 February 2021 when her workers' compensation benefits ended. Ms Vivian then availed herself of leave until 12 April 2021.

Ms Vivian commencing the GRTWP and PIP at the HHOT

  1. [15]
    By letter dated 12 February 2021 from Ms Ann Marie Mallett, Service Group Director, MHSG, Ms Vivian was offered to complete her GRTWP at the HHOT ('the offer'). In making the offer, Ms Mallet stated:

Offer

After extensive consideration, the Service Group have identified a placement for you as a Social Worker, HP3 in the Homeless Health Outreach Team based out of the Cambridge Street facility where you will be supported in a graduated return to work plan by HHOT Team Leader and Professional Senior (Social Work), Lisa Swanton. For completeness, we were unable to identify any operationally viable placements for you based in Charters Towers given the regional setting and requirement to have a suitably qualified senior Social Worker available to oversee your placement.

I note during your meeting with Stefanie Loro, HR Business Partner and Kylie Tomarchio, HR Adviser on 18 January 2021, you requested consideration from MHSG as to whether we will support out of pocket expenses for you during this placement in Townsville. I am able to offer you the following:

  • Where available, on site hospital accommodation paid for by MHSG, on days where you are required to work at Cambridge Street, up to a maximum of 4 nights per week (please note this is not pet friendly accommodation). Should the accommodation be unavailable, you will be required to arrange your own Townsville-based accommodation and MHSG will reimburse you the equivalent value of the THHS on-site accommodation ($30 per night);
  • An agreement to exploring mutually suitable options in how we treat your 90 minutes travel time from Charters Towers to Townsville, such as the MHSG allowing you to travel during work hours (to be finalised on agreement);
  • You may be able to access benefits stated in the Living Away From Home Allowance & FBT Concessions information statement attached;
  • Mileage allowance in line with HR Policy C15 and Directive 20/16 (attached) at 80 cents per kilometre for travel between Charters Towers and Townsville only.

For avoidance of doubt, any other personal expenses incurred are at your own cost and please seek financial advice as required.

Additionally, in consideration of the background factors including your recency of practice, the Service Group request that you participate in a Performance Improvement Plan (PIP) whilst undertaking your graduated return to work plan within the HHOT team. The PIP will be overseen by Lisa Swanton and is a supportive measure that provides structure and development supports for your re-entry into the workplace. The PIP also allows MHSG to ensure your safety and the safety of our consumers.[3]

  1. [16]
    By email sent on 22 February 2021 to Ms Stefani Loro, Human Resources Business Partner, Ms Vivian stated that:
  • she was interested in taking the offer as she was keen to return to her substantive position at the CTCMHS very soon;
  • she sought clarification on how long the 'proposed offer' with the HHOT would be for and her hours of work;
  • she would travel to Townsville on a daily basis because accepting the placement in Townsville would put her under significant financial stress; and
  • she looked forward to a meeting with the MHSG to discuss further and stated she wanted to present evidence to counteract any claims made against her that related to the PIP implementation which was to run concurrently with the GRTWP.[4]
  1. [17]
    By letter dated 26 February 2021, WorkCover advised Ms Vivian that its payment to her of weekly compensation and medical treatment would stop as of that date because it concluded that her work injury would not improve with further treatment and did not continue to incapacitate her. In its reasons, WorkCover relevantly stated that:
  • Ms Vivian was certified fit to return to work doing reduced hours and nonclinical work from February 2020 through to June 2020, at which time she was certified medically fit to return to some clinical duties;
  • due to job performance issues that pre-dated her claim, ongoing suitable duties were no longer available at Charters Towers as management supervision was required for the return to clinical duties for performance management;
  • had it not been for the performance management, Ms Vivian's duties would have continued at Charters Towers;
  • the Health Service offered Ms Vivian a role in Townsville where it could provide the required supervision for her performance management issues that pre-dated the work-related injury; and
  • Dr Gundabawady provided his medical opinion from the independent medical assessment WorkCover arranged for Ms Vivian, which she attended on 19 January 2021, and Dr Gundabawady opined that:
  • Ms Vivian's work-related psychological injury was stable and stationary and had reached maximum medical improvement; and
  • her adjustment disorder with mixed anxiety and depressed mood in itself did not incapacitate Ms Vivian from commencing a suitable duties program and returning to her substantive position.[5]
  1. [18]
    At the mention of this matter on 18 November 2021, Ms Vivian confirmed that the first time she knew her workers' compensation benefits would be ceasing was when she received correspondence from WorkCover advising her of its decision to cease her benefits.
  1. [19]
    There is no dispute that Ms Vivian commenced the GRTWP at the HHOT on 12 April 2021.

The first grievance

  1. [20]
    On 19 April 2021, Ms Vivian lodged an internal grievance with the Health Service regarding the initiation of the PIP.
  1. [21]
    Ms Vivian wanted:
  • the PIP dismissed due to lack of evidence;
  • to be able to return to work in Charters Towers in her substantive position; and
  • to have her GRTWP completed in an environment in which she was familiar and in which she felt supported ('the first grievance').
  1. [22]
    The first grievance was also reviewed by Mr Eaton and by letter dated 7 June 2021, he advised Ms Vivian of his decision about the first grievance. In making his decision to dismiss the first grievance, Mr Eaton stated:

I am of the view that the decision of the MHSG that you are required to participate in a PIP due to concerns with your clinical performance is appropriate. The PIP is supportive and provides you with clear direction and supports to improve your clinical judgement, clinical documentation, case management and clinical care.

In making my decision I have also considered the responsibility of the Townsville HHS to ensure that consumers of our services receive timely, safe and quality care. You have had limited opportunity to address the clinical concerns discussed with you in July 2019, as in August 2019 you commenced a period of absence from the workplace and have only recently commenced a graduated return to work. You have consistently questioned the feedback and have resisted engaging in the management processes, including the PIP, however, it is incumbent on you to accept that there are deficiencies in your clinical performance and to undertake the necessary steps to remedy those deficiencies.

In our meeting you questioned the necessity that you undertake the PIP in Townsville with HHOT. The MHSG has advised that the position of Team Leader with the CTCMHS is temporarily filled, that the degree of clinical oversight required to support you cannot be provided at Charters Towers, that in HHOT you will be supported by an experienced Senior Social Worker, and the work you will be required to undertake is similar to your substantive role.

While I accept the reasons of the MHSG, I also consider that the issues that you raised in our meeting regarding your personal circumstances to be relevant considerations. I have requested that the MHSG consider further assistance be provided to ensure that it is viable for you to continue the PIP in Townsville. I am now aware that you have been provided with a fleet vehicle to assist with the costs of traveling to Townsville.[6]

  1. [23]
    In making his decision, Mr Eaton also informed Ms Vivian of her right to appeal against this decision.[7]
  1. [24]
    Ms Vivian did not appeal against Mr Eaton's decision in respect of the first grievance.

The second grievance

  1. [25]
    On 24 May 2021, Ms Vivian commenced a second internal grievance (set out in more detail below) contending that:
  • she should be allowed to complete her GRTWP in Charters Towers; and
  • the sick leave, annual leave, Rostered Days Off ('RDOs') and long service leave she has taken since 26 February 2021 be reinstated ('the second grievance').
  1. [26]
    Mr Eaton, in response to the second grievance, decided that:
  • Ms Vivian was to complete her GRTWP at the HHOT; and
  • none of the leave Ms Vivian requested to be reinstated would be reinstated.
  1. [27]
    At the mention of this matter on 18 November 2021, Ms Vivian clarified that she had been certified by her general practitioner to be unfit for work until 30 November 2021.

The second grievance

Completing the GRTWP in Charters Towers

  1. [28]
    Ms Vivian relevantly contended that:
  • she started a GRTWP in a position in the HHOT and when she was offered that placement, she accepted the offer because she believed, at the time, that there was no other option for her in that she was told that she could not complete her GRTWP in Charters Towers because there was no Senior Social Worker at the CTCMHS;
  • the offer she agreed to was never put into place because amendments to the original agreement were made by the MHSG, which she accepted due to concerns that the opportunity to return to work would be withdrawn, and she believed she was put into a situation where she had no other recourse but to accept the Townsville offer to return to work;
  • since then, she has been made aware that other workers in a similar situation were able to complete a GRTWP using remote resources and partaking in facetoface, phone or video conference meetings with a Senior Social Worker in Townsville and this information suggests:

I have not been offered the same opportunities as others regarding a fair return to work process. I believe, this suggests, I am being disadvantaged by the MHSG in not allowing me to complete my return to work in Charters Towers; and

  • the current measures being taken to complete her GRTWP were unsustainable for the length of time it will take her to complete the GRTWP.[8]
  1. [29]
    The outcome expected by Ms Vivian was:
  • for the MHSG to re-consider the decision for her to complete her GRTWP in Townsville which has put her '… in an untenable situation';
  • to return to her substantive position in Charters Towers '… without any actions attached due to completing' GRTWP duties in Townsville; and
  • to reduce '… any further financial and health and safety risks to her by having to travel to Townsville to reinstate herself back into the' Health Service's workforce.[9]

The reinstatement of leave

  1. [30]
    Ms Vivian relevantly contended that:
  • since starting back at work in the HHOT on 12April 2021, she has completed 6weeks of the Suitable Duties Plan ('SDP');
  • from 26February 2021 to that present time, she has had to use a significant amount of leave due to the time it took for her to start the SDP in the HHOT;
  • she has used leave to cover for days when she was unable to travel to Townsville due to either being too fatigued, having insufficient funds and weather issues; and
  • she believed she had been penalised by the process and that she was not being treated fairly or reasonably.[10]
  1. [31]
    The outcome expected by Ms Vivian was:
  • for any sick leave, annual leave, RDOs and any long service leave that was used since 26February 2021 to be reinstated;
  • to have any leave used due to fatigue, having insufficient funds and weather issues reinstated; and
  • for any leave used from 24 May 2021 to be reinstated whilst having to travel to Townsville to complete the GRTWP in the HHOT.[11]

The decision

Completing the GRTWP in Charters Towers

  1. [32]
    In the decision, Mr Eaton stated that:
  • it was not until 24 February 2021 that Ms Vivian accepted a placement with the HHOT and Ms Mallett confirmed that Ms Lisa Swanton, Senior Social Worker, would oversee Ms Vivian's PIP;
  • he did not accept that Ms Vivian was not supported during that time as she and her support persons had participated in the meetings with the MHSG, Health Safety and Wellness, and that Ms Vivian was provided the opportunity to have input into her GRTWP;
  • the MHSG had implemented support to assist Ms Vivian in meeting the financial cost of having to travel to Townsville and the reasons for her placement with the HHOT (and that the MHSG could not support her in Charters Towers while she was required to participate in a PIP) had previously been addressed with her and that he would not review those decisions as part of her grievance;
  • he understood there had been a lengthy process and the decisions had not always been aligned to what Ms Vivian was seeking, but he considered that the actions and decisions of the MHSG had been reasonable; and
  • Ms Vivian was to complete her GRTWP placement with the HHOT.[12]

The reinstatement of leave

  1. [33]
    In coming to his decision about this aspect of Ms Vivian's grievance, Mr Eaton relevantly stated that:
  • he considered Ms Vivian's request for reimbursement of leave used due to fatigue, having insufficient funds and weather issues and he decided the leave should not be reinstated because:
  • he did not accept fatigue as being a factor because on 11 March 2021, Ms Vivian confirmed that her general practitioner had no objections to her travelling to Townsville, including any concerns with medication induced fatigue; and
  • he understood that there may have been days when Ms Vivian considered it a risk to drive to Townsville due to the weather, however, those decisions were at her discretion and he considered that if Ms Vivian needed to alter her days of work to facilitate weather events, that between her, her general practitioner and the MHSG, a reasonable alternative could have been negotiated so that she did not have to access her leave;
  • the MHSG had provided Ms Vivian with financial assistance by making available the use of a fleet vehicle, whereby the costs of insurance and petrol were not at her expense and that while he appreciated that arrangement was not in place when she commenced back with the HHOT on 12 April 2021, and that the cost of travel was an additional cost, he did not agree that she was to be reimbursed any leave she accessed until that arrangement came into effect; and
  • Ms Vivian was working reduced hours in accordance with her medical restrictions and accessing her leave for the remaining hours up to her substantive fulltime permanent hours and that while he appreciated that Ms Vivian disagreed with the decision to travel to Townsville, her accessing of leave was based on a financial consideration as she was certified fit for reduced hours.[13]

Ms Vivian's submissions

Completing the GRTWP in Charters Towers

  1. [34]
    Ms Vivian submits that:
  • she is working in an unfamiliar environment;
  • she is not familiar with the HHOT's processes;
  • she is extremely fatigued when she arrives at 8.00 am and when she returns to Charters Towers at 3.30 pm;
  • sometimes she has to pull up on an isolated road to walk around so as not to fall asleep and that the Health Service's fleet manual states that workers should not drive a fleet car when fatigued and, at times, she fears for her safety due to extreme fatigue and road conditions;
  • she is not prepared for the morning meeting or for clinical reviews due to time restraints;
  • there is not enough time in the clinical hours to complete lengthy documentation and she, her psychologist and her general practitioner have provided the MHSG and the HHOT Team Leader with various solutions, such as increasing her hours without travelling to Townsville, but all have been rejected and she is completing 9 hour days (some days more) but is only being paid for 4.5 hours;
  • the 4 hours of travel per day does not attract pay or TOIL;
  • this placement has had a profound effect on both her professional and personal life and has been detrimental to her physical and mental health wellbeing;
  • she is not a fully functional member of the HHOT and other members of the team have been impacted, as well as clients and the Health Service itself;
  • she does not agree that her GRTWP needs to be completed in Townsville, even with a PIP in place, and she should be able to complete the GRTWP in the Charters Towers Service; and
  • these particular processes have been completed remotely with professional input and supervision with the nominated Senior Social Work and Team Leader, Ms Swanton.[14]

The reinstatement of leave

  1. [35]
    Ms Vivian submits that:
  • she was only given a choice of either completing a placement in Townsville or not returning to work and that her decision to accept the placement in Townsville was based purely on fear that she would not be able to return to full-time work if she rejected the Health Service's offer;
  • due to the MHSG not willing to separate the GRTWP and the PIP, WorkCover was not prepared to support her through the period of the GRTWP due to the involvement of Human Resources and due to this decision by the MHSG, she was denied the early support for the GRTWP and she had to use her leave to cover the other full-time hours; and
  • when she did start the GRTWP, the PIP was not concurrent with the GRTWP and due to appealing the PIP with Mr Eaton, her GRTWP plan moved from 2 weeks to about 10 weeks and she does not believe that she should have to use her leave entitlements to cover that period of time.
  1. [36]
    Ms Vivian then relevantly submits:

I reject the COO's[15] conclusion that I could have altered my days of work to facilitate weather events, as changing hours or extending hours on a RTW process needs prior approval. Furthermore, there were no other days to negotiate moving my hours too [sic]. Since the start of this process, I have traveled [sic] on a Monday, Tuesday and Thursday and Friday. I do not travel on a Wednesday as this day is used to try and break the ongoing travel to Townsville and to try and reduce fatigue.

From the start, I was informed by the MHSG that I would not be reimbursed for any travel time to Townsville and back again in way of pay or TOIL. I informed the MHSG that due to the 4 hours of travel and 4 hours (now increased to 5 hours) of clinical time that my clinical hours would not be increased further due to fatigue and other health issues. My GP supports not increasing my hours which has left me to use leave to fill hours that have not been covered by the RTW process.

In summation, I have used most of my leave time on trying to complete the placement in Townsville. When I run out of leave, I will have to stop work - there is no other option for me. Therefore, I believe that this process is unfair and unreasonable and has been unstainable [sic] from the beginning which I have expressed on many occasions to the MHSG and the TL[16] of the HHOT where I have been told - 'this is my only option'.[17]

The Health Service's submissions

Completing the GRTWP in Charters Towers

  1. [37]
    The Health Service submits that:
  • a PIP was required to support Ms Vivian's GRTWP to ensure that her clinical practice was supervised, and that safe clinical services were provided to consumers;
  • it was not viable to conduct Ms Vivian's GRTWP and PIP in the CTCMHS team due to the lack of leadership stability and the absence of a Senior Social Worker to oversee a PIP;
  • Ms Swanton could oversee the PIP at the HHOT, the work tasks and processes of the HHOT are similar to the CTCMHS and that Ms Vivian's reduced hours could be supported within the HHOT;
  • at the HHOT, the Social Workers work in pairs for all consumer contact and Ms Swanton is able to discuss clinical issues with Ms Vivian daily, whereas at the CTCMHS, there is not the capacity to pair Ms Vivian with another Social Worker for all client contact and there is no Senior Social Worker to provide day to day oversight;
  • Ms Vivian accepted the placement in the HHOT as evident in her attending work in the HHOT commencing 12 April 2021;
  • whilst a permanent Team Leader was appointed at the CTCMHS on 19 July 2021, the CTCMHS team is at 50% capacity and there is currently no Senior Social Worker to support Ms Vivian with her PIP;
  • in respect of Ms Swanton having overseen another PIP remotely, that was not an option in Ms Vivian's circumstances due to the high risk to consumer safety for Ms Vivian to perform clinical duties or have client contact without direct supervision;
  • Ms Vivian's contention that she had no choice but to accept the HHOT placement is incorrect as the Health Service advised her that it would consider other options as stated in its correspondence of 12 February 2021 to her;
  • any decisions taken by WorkCover to cease payment of benefits to Ms Vivian were independent of it, in that, in WorkCover's decision dated 26 February 2021, it (WorkCover) relied upon the medical opinion of Dr Gundabawady dated 19 January 2021;
  • in respect of Ms Vivian's contention that it reneged on an agreement that Ms Vivian commence work in Townsville at 10.00 am, it contends that no such agreement was made, and decisions in respect of the time Ms Vivian would commence work was deferred to Ms Swanton, who advised that it was not viable as Ms Vivian's attendance at the 8.00 am team meeting was necessary to integrate her into the team;
  • Ms Vivian is aware of this practice as in the CTCMHS all staff attend the 8.00 am meeting and it was proposed to Ms Vivian that she adjust her hours of work to reduce the travel, however, she declined;
  • Ms Vivian's general practitioner:
  • reviewed all SDPs and stated that there were not any issues with fatigue; and
  • on 11 May 2021, increased Ms Vivian's hours from 16 to 20 hours per week, across four days;
  • it contends that the management of Ms Vivian's GRTWP and PIP has been reasonable and in accordance with medical advice and that Ms Vivian has been provided with a proportionate case load due to her working reduced hours; and
  • Ms Vivian has declined options offered by it such as onsite accommodation in Townsville and TOIL when her hours had increased, however, Ms Vivian has refused an increase to her hours above 5 hours per day.[18]

The reinstatement of leave

  1. [38]
    The Health Service submits that:
  • Ms Vivian accessed leave due to her personal choice to make up her reduced earnings, which was a direct consequence of:
  • her absenteeism, in that of the 40 days Ms Vivian was rostered for work at the HHOT, she was absent for 18 days; and
  • medical restrictions that necessitated her working reduced hours;
  • Ms Vivian was rostered and provided work in accordance with her medical restrictions in that:
  • from 12 April 2021, her rostered hours were 16 hours a week, 4 hours per day, 4 days per week; and
  • after 11 May 2021, her rostered hours were 20 hours per week, 4 days per week, 5 hours per day;
  • the Health Service has previously advised flexibility in hours can be considered and Ms Vivian has not provided any evidence that she has explored alternatives with her general practitioner or with the Health Service to assist in reducing her reliance on leave;
  • it confirms that it is willing to explore alternatives with Ms Vivian, including the hours she works per day and the number of days per week;
  • it contends that Ms Vivian is not being pressured to increase her hours or to stay in Townsville;
  • Ms Vivian admits she has the capacity to work her full-time hours and has stated that her general practitioner rejects an increase in hours due to his concern with her physical and psychological factors by having to travel and complete her SDP and PIP on reduced hours; and
  • her general practitioner has had input into all SDPs, including the PIP and travel, and has not raised these concerns.[19]

Ms Vivian's submissions in reply

  1. [39]
    In reply, Ms Vivian submits that:
  • she accepted the offer of a placement in Townsville as she believed this was her only option once she ceased receiving workers' compensation on 26 February 2021 and the Health Service stated that all other possibilities were exhausted;
  • she advised MHSG that Townsville was not an option because working there would place her into deeper financial hardship and 4 hours of daily travel time would induce fatigue and increase anxiety and stress levels;
  • the original placement offer by Ms Mallet, which was accepted by her (Ms Vivian), was that she (Ms Vivian) could travel to and from Townsville in work hours (8.00 am to 4.30 pm) to complete the GRTWP and PIP, which did not occur;
  • because she was informed that travel time would not attract pay or TOIL, she used annual, sick and long service leave and RDOs to cover the travel time and her reduced hours so as to be paid a fortnightly wage;
  • since commencing the GRTWP in April 2021, she has continually raised concerns about fatigue, finances and increased levels of anxiety and stress;
  • for the first 4 weeks of the placement, she was not supervised for most of the time and was later supervised by a Clinical Nurse Co-ordinator and completed home visits with HP3 level workers;
  • her requests to work from home for 4 hours on a Wednesday to reduce leave and travel time, to Skype into morning meetings and to access the mental health database via iPad were denied;
  • from April 2021 to September 2021, there was little direct clinical supervision by the Senior Social Workers at HPTHHhhthe HHOT; and
  • she was told that she could not commence clinical work unless she agreed to participate in a PIP.[20]
  1. [40]
    By way of conclusion, Ms Vivian submitted:
  1. 18.
    The Appellant believes that the RTW and PIP could have been supported and completed at the CTCMHS without the added harsh personal impacts and loss of leave this placement has caused the Appellant. It is not uncommon for the THHS to complete supervision by remote resources or have face-to-face supervision in Townsville when required … Furthermore, the Appellant was overseen in daily activities by CNC (HP4) and completed home visits with a CN and OT of HP3 equivalent workers in the HHOT which negates the need, as suggested, to have a Senior Social Worker in the CTCMHS. The Appellant believes that it is unfair and unreasonable to have to travel approximately 280klms round trip per day to attend a placement in Townsville, whereas, the Appellants normally [sic] place of work is only 6 mins away from the Appellants home in Charters Towers.

The decision was fair and reasonable.

Completing the GRTWP in Charters Towers

  1. [41]
    Ms Vivian is not presently attending work at the HHOT because her medical practitioner has certified she is not fit for any type of work.
  1. [42]
    At the time she ceased work at the HHOT (on or about 3 September 2021), Ms Vivian:
  • worked 20 hours per week, 4 days per week on Monday, Tuesday, Thursday and Friday;
  • worked 5 hours each day between the hours of 8.00 am and 1.00 pm;
  • travelled from Charters Towers to Townsville and back on each of those days to work at the HHOT;
  • from about May 2021, travelled to and from Townsville on each of those days using a fleet vehicle, at no cost to her, that she retrieved from and delivered back to the Health Service in Charters Towers each day because she could not home garage the vehicle; and
  • would leave Charters Towers at 6.00 am to arrive in Townsville at 8.00 am and then would leave Townsville at 1.30 pm to arrive back at Charters Towers at 3.30 pm.
  1. [43]
    Presently there are 2 weeks of the PIP left for Ms Vivian to complete.
  1. [44]
    In my view, the decision that Ms Vivian complete her GRTWP in Townsville was fair and reasonable. There are a number of reasons for this.
  1. [45]
    First, Ms Vivian accepted the offer as conveyed to her in Ms Mallett's letter dated 12 February 2021. While there were some details about accommodation, travel and allowances to be further determined, and the particulars of the GRTWP and PIP had to be discussed with Ms Swanton, including when the placement would start, on my reading of Ms Vivian's email to Ms Loro dated 22 February 2021, Ms Vivian accepted the offer noting that there were some details about the arrangement that had to be further worked out between the parties.
  1. [46]
    I have not been provided with any email by Ms Vivian in response to Ms Mallett's email dated 24 February 2021, by which Ms Mallett states that it was her understanding that Ms Vivian had accepted the offer '… in principle.'
  1. [47]
    Furthermore, contrary to her submissions, Ms Vivian does not state in her email to Ms Loro dated 22 February 2021 that the reason she was '… interested in taking the offer' was because of the decision of WorkCover to cease her weekly payment of compensation and payment of medical expenses.[21]
  1. [48]
    Indeed, given what Ms Vivian told me at the mention of this matter on 18 November 2021, it is the case that Ms Vivian did not know of the WorkCover decision until a date after the date of her email to Ms Loro.
  1. [49]
    Secondly, the material background facts were the Wigan Review, the fact that Ms Vivian had participated in a PADP in 2018, following which it had been determined that there were a number of key performance indicators that Ms Vivian had not completed, and the determination that Ms Vivian participate in a PIP. The further background facts were the absence of a Senior Social Worker at the CTCMHS at the time Ms Vivian's GRTWP and PIP were to be implemented, and that such a Senior Social Worker was available to so supervise Ms Vivian, particularly in respect of her PIP, at the HHOT.
  1. [50]
    Having regard to these facts, it seems to me that the decision that Ms Vivian complete the GRTWP and PIP at the HHOT in Townsville was reasonable. This is particularly the case, given that some of the concerns about Ms Vivian's work performance, that led to the decision to implement a PIP, included her clinical judgement and assessment. In those circumstances, it was fair and reasonable that in respect of the supervision of Ms Vivian in her PIP, that she be supervised directly by a Senior Social Worker nominated by the Health Service.
  1. [51]
    Thirdly, it was Ms Vivian's decision not to accept the offer of accommodation offered by the Health Service in Townsville for the days of the week (up to 4 nights per week) she would be working at the HHOT. While I accept that the offer made by Ms Mallett, in her letter dated 12 February 2021, indicated that should the accommodation be unavailable Ms Vivian would be required to arrange her own Townsville based accommodation (for which the MHSG would reimburse her the equivalent value of the Health Service's onsite accommodation of $30 per night) it seems to me that Ms Vivian dismissed such offer of accommodation out of hand. That is to say, ultimately, it was her choice to travel to and from Townsville on each day that she worked at the HHOT.
  1. [52]
    For these reasons, Mr Eaton's decision about this aspect of Ms Vivian's grievance was fair and reasonable.
  1. [53]
    However, I do wish to make one further point. In my view, it is not fair and reasonable that Ms Vivian has not been compensated, in accordance with the relevant industrial instrument, for the additional time it took (and will take) her to travel from Charters Towers to Townsville and back. The reason the only offer that could be made by the Health Service to Ms Vivian, that she undertake the GRTWP and the PIP at the HHOT, was because the Health Service did not have the appropriate senior staff at the CTCMHS to supervise Ms Vivian.
  1. [54]
    In those circumstances, it would have been fair and reasonable for Ms Vivian, given the considerable extra travel time she had to, and must, undertake to be able to work at the HHOT, to be so compensated for that additional travel time.
  1. [55]
    While it is not a decision against which Ms Vivian has appealed, I will leave it to the parties to determine what they may do in respect of the views I have expressed about Ms Vivian being compensated for the travel time.

The reinstatement of leave

  1. [56]
    In my view, the decision that Ms Vivian is not to be reinstated any of the leave she claimed was fair and reasonable. There are a number of reasons for this.
  1. [57]
    First, it seems to be the case that, at least since 12 April 2021, when Ms Vivian was undertaking the GRTWP, she was using leave to make up the shortfall between her fulltime hours and the hours that her medical practitioner certified that she was safely able to perform as part of the GRTWP. That Ms Vivian applied for and was granted that leave was a matter for her. Mr Eaton's decision, not to reinstate the leave she had taken, for that reason, was fair and reasonable.
  1. [58]
    Secondly, if there were days when Ms Vivian thought it was unsafe for her to travel from Charters Towers to Townsville and back again because of fatigue or because of weather issues, then she should have discussed those matters directly with her supervisors at the HHOT and sought to make some amendments to the days of the week she was working. There does not seem to be any evidence provided by Ms Vivian that she sought to explore such alternatives on those days when, because of fatigue or weather, she thought it was unsafe to travel.
  1. [59]
    Thirdly, there is no medical evidence provided by Ms Vivian to the Health Service which suggests that, because of any medical condition she had, her travel to and from Charters Towers would be unsafe for her.
  1. [60]
    For all these reasons, Mr Eaton's decision about this aspect of Ms Vivian's grievance was fair and reasonable.

Conclusion

  1. [61]
    The question in this case was whether the two aspects of Mr Eaton's decision challenged by Ms Vivian on appeal, were fair and reasonable.
  1. [62]
    For the reasons I have given, those two aspects of Mr Eaton's decision were fair and reasonable.
  1. [63]
    The decision appeal against is confirmed.

Order

  1. [64]
    I make the following order:

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

Footnotes

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

[2] Morison v State of Queensland (Department of Child Safety, Youth and Women) [2020] QIRC 203, [4]-[7].

[3] My emphasis.

[4] Attachment 2 to the Respondent's submissions filed on 16 September 2021 ('the Respondent's submissions'), second page.

[5] Attachment 8 to the Respondent's submissions, second and third pages.

[6] Attachment 5 to the Respondent's submissions, pages 2 and 3 of 3.

[7] Attachment 5 to the Respondent's submissions, page 3 of 3.

[8] Attachment 6 to the Respondent's submissions, third to fourth pages.

[9] Attachment 6 to the Respondent's submissions, fourth page.

[10] Attachment 6 to the Respondent's submissions, fourth page.

[11] Attachment 6 to the Respondent's submissions, fifth page.

[12] Attachment 7 to the Respondent's submissions, page 3 of 5.

[13] Attachment 7 to the Respondent's submissions, page 4 of 5.

[14] The attachment to the Appellant's appeal notice filed on 19 August 2021 ('the appeal notice attachment'), second and third page.

[15] Mr Eaton.

[16] Team Leader.

[17] The appeal notice attachment, third and fourth pages.

[18] The Respondent's submissions, paras. 14-22.

[19] The Respondent's submissions, para. 24.

[20] The Appellant's submissions in reply filed on 22 October 2021, paras. 10-16.

[21] T 1-6, ll 8-37.

Close

Editorial Notes

  • Published Case Name:

    Vivian v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Vivian v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 1

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    07 Jan 2022

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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