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  4. Jenkins v State of Queensland (Queensland Health) - [2022] QIRC 12

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Jenkins v State of Queensland (Queensland Health)[2022] QIRC 12

Jenkins v State of Queensland (Queensland Health)[2022] QIRC 12

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Jenkins v State of Queensland (Queensland Health) [2022] QIRC 012

PARTIES:

Jenkins, Alana

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2021/272

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

24 January 2022

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – notice to show cause letter issued – whether the notice to show cause was fair and reasonable – decision fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Service Act 2008 (Qld), ss 25, 25A, 187, 188, 190 and 194

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Ms Alana Jenkins ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a HP5, Senior Scientist with Central Laboratory, Microbiology, Pathology Queensland, Health Support Queensland.
  1. [2]
    By appeal notice filed on 29 July 2021, the Appellant, pursuant to chapter 7 of the Public Service Act 2008 (Qld) ('the PS Act'), appealed against the decision made by Mr Brett Bricknell, General Manager, Pathology Queensland, Health Support Queensland, dated 15 June 2021, issued to the Appellant on 15 July 2021.

Appeal principles

  1. [3]
    Section 562B(1) of the Industrial Relations Act 2016 (Qld) ('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. [4]
    The appeal must be decided by reviewing the decision appealed against.[1] Because the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under chapter 11, part 6, division 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [5]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the decision of Mr Bricknell was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [6]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Substantiation of allegations

  1. [7]
    It is unclear from the appeal notice and the submissions of the parties as to the proper chronology of events. As I understand it, the Appellant had previously filed a General Protections claim in this Commission and a conference was subsequently held on 6 February 2020. It was agreed between the parties at the conclusion of that conference that the discipline process would be placed in abeyance for a period of six weeks and that the original Notice to Show Cause ('NTSC') would be rescinded to allow for further enquiries.
  1. [8]
    On 15 July 2021, the Appellant attended an interview and was provided with a NTSC dated 15 June 2021.
  1. [9]
    In the circumstances, it is appropriate to set out the relevant extracts of the NTSC which is the subject of this appeal

Dear Ms Jenkins

I refer to your employment as a Senior Scientist (HP5) with Central Laboratory, Microbiology, Pathology Queensland (PQ), Health Support Queensland (HSQ), and information which raises serious allegations concerning your workplace conduct.

As you are aware, at the conference before Commissioner Knight, Health on 6 February 2020 in the Queensland Industrial Relations Commission the following actions were agreed to by the parties:

  1. For Ms Raeleen Garner, Principal Human Resources Business Partner, to undertake further enquiries into the events of 20 October 2019 relating to the replacement of buffer solutions in the microplate washer with distilled water
  1. These enquiries included Ms Garner meeting with yourself and your representative to discuss the events
  1. Your representative was to provide Ms Garner with a chronology for consideration
  1. For Ms Garner to seek the advice from a senior scientist with the details of the incident so that it can be determined whether clinical procedures were followed.

I note that you were invited to a discussion with Ms Garner on 15 July 2020; however, Ms Garner advised that she was unable to obtain a statement from yourself as your representative, Mr Myles Heffernan, Worker Law, was of the view that the review was not appropriate.

I also note that a chronology (as per point 3 above) has not been provided by yourself or your representative to Ms Garner.

I am now in receipt of the further enquiries undertaken by Ms Garner, dated 15 December 2020 (the Report)… and the document which outlines the coast and impact of incident on 22 October 2019…

After giving full and careful consideration to the material available to me, I am of the view that you may be liable for disciplinary action pursuant to sections 187 and 188 of the Public Service Act 2008 (the Act)…

Background

At all times relevant to these allegations:

  • You were employed as a Senior Scientist with the Central laboratory, Microbiology, PQ, HSQ.
  • You were expected to carry out the inherent requirements of your role.
  • You had an obligation to ensure your conduct was appropriate and reflected the principles, values and standards of conduct outlined in the Code of Conduct for the Queensland Public Service (the Code)…
  • Human Resources (HR) Policy E1 Workplace conduct and ethics provides at section 2: 'Employees have a responsibility to always conduct and present themselves in a professional manner and to ensure personal conduct displays integrity and maintains public confidence in the Queensland Public Service'…
  • You were expected to adhere to the fundamental principles of ICARE… which provides expectations of conduct, and are key to our success and achieving our vision to be Australia's best healthcare support partner:
    • Integrity – being honest and ethical in everything we say and do
    • Customers and patients first – putting customers and patients at the centre of everything we do
    • Accountability – taking personal responsibility for our actions
    • Respect – being considerate, recognising our differences and looking out for each other
    • Engagement – actively investing in positive outcomes by partnering with others.

Allegation

On or about 20 October 2019 or 21 October 2019, it is alleged that you replaced buffer solutions in the microplate washer with distilled water and failed to appropriately communicate this to staff.

Particulars

  1. You worked on Sunday 20 October 2019 and on Monday 21 October 2019 at the Central Microbiology Laboratory.
  1. You replaced buffer solutions with distilled water, which was a deviation from the Microplate Washer Procedure…
  1. You failed to appropriately alert and communicate with staff that you had disposed of all wash buffers from the microplate washers and replaced with distilled water.
  1. Due to replaced buffer solutions, Parvovirus assay runs were incorrectly processed with distilled water instead of wash solution, which had the potential to compromise patient test results.
  1. Previous assay runs completed for 20 and 21 October 2019 were required to be repeated, adversely impacting on the performance and service delivery of the Central Microbiology Laboratory.
  1. On 22 October 2019, during a conversation held with Mr Robert Gibb, Supervising Scientist Serology, PQ, you admitted in a loud and aggressive tone that you discarded the solution and replaced with distilled water as no one checks the labels and solution had expired.
  1. In your email dated 23 October 2019 to Mr Gibb, you advised that you could not recall when you had poured out the wash solution and that you had labelled the bottles as containing water using an ad-hoc label…
  1. The impact of the incident included delays in reporting of test results; and, a financial imposition; and, also had the potential for adverse patient outcomes had the internal controls failed…

Possible grounds for discipline

Having considered the information currently available to me in respect of the Allegation, I consider there may be grounds for you to be disciplined pursuant to the Act:

  1. Pursuant to section 187(1)(a) in that you have engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently.

Alternatively

  1. Pursuant to section 187(1)(g) in that you have contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, namely the relevant sections of the Code of Conduct for the Queensland Public Service:

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:

  1. 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.

3.1 Commit to our roles in public service

Our role is to undertake our duties, and to give effect to the policies of the elected government, regardless of its political complexion.

We will:

  1. adhere to the policies, organisational values and organisational documents of our employing agency.

4.3 Ensure appropriate use of official resources, public property and facilities

We are accountable for all resources that we use in the course of our duties.

We will:

  1. be economical, and avoid waste and extravagance in the use of public resources for proper purposes
  2. use any public resource in accordance with official policies

However, in accordance with the principle of natural justice, no determination has been made or will be made until you have had the opportunity to respond.

Should a determination be made that there are grounds for you to be disciplined pursuant to the Act, section 188 of the Act identifies potential disciplinary action that may be taken.

Notice to show cause

In accordance with HR Policy E10…, I now afford you the opportunity to show cause, in writing, within 14 calendar days of receipt of this letter, why you should not be disciplines in relations to the allegation detailed above. Your written response should include whether you admit or deny the allegations made against you and provide any explanation of the matter above that you consider relevant.

…

Grounds of appeal

  1. [10]
    In the appeal notice, the Appellant appeals the decision on the grounds that the decision:
  1. (a)
    is unfair and unreasonable;
  1. (b)
    does not comply with Directive 14/20 Discipline ('the Directive'); and
  1. (c)
    does not comply with ss 25 and/or 25A of the PS Act.
  1. [11]
    The Appellant submits that steps have not been taken as required by ss 25 and 25A of the PS Act and cls 4.1, 8.5(d) and 8.5(e) of the Directive, rendering the show cause process to be unfair due to:
  1. (a)
    the failure to engage in management action when required;
  1. (b)
    the continued suggestion that termination is a possible outcome of the show cause process;
  1. (c)
    the effluxion of time, being 18 months, between the events alleged and the NTSC being issued.
  1. [12]
    The Appellant elaborates on the alleged unfairness of the show cause process, outlining that:
  1. (a)
    parties had agreed at the conference on 6 February 2020 that termination was not a possible outcome. However, the allegation in the NTSC refers to the same conduct and outcomes and has sought to enliven termination in a more aggravating terms, as termination is not outlined in the NTSC itself but has only been referenced by commenting on s 188 of the PS Act;
  1. (b)
    it is unfair that the same outcome is being sought in circumstances where it was agreed that termination could not result from a substantiation of the allegation;
  1. (c)
    in circumstances where there has been a delay of 18 months since the NTSC was issued after the relevant events,[5] the effluxion of time prevents natural justice being served;[6] and
  1. (d)
    no conversations with the Appellant occurred regarding the allegation as part of the show cause process to determine whether there is any basis to commence the show cause process in the first instance.
  1. [13]
    The Appellant submits that the show cause process is unreasonable as:
  1. (a)
    the Respondent has not engaged in the appropriate processes as required under the Directive and ss 25 and 25A of the PS Act as it relates to:
  1. (i)
    the management processes that were required to be engaged in; and
  1. (ii)
    the steps that are to be taken prior to a show cause letter;
  1. (b)
    the Respondent has not given consideration to the inappropriate nature of termination being considered in these circumstances as required by cl 8.5(e) of the Directive and with consideration to the agreement made at the conference held at the Commission on 6 February 2020; and
  1. (c)
    the issuing of a show cause letter that maintains or asserts the possibility of an outcome that would never eventuate fundamentally misrepresents the scope of the NTSC as well as the rights of the Appellant generally. Accordingly, reference to termination being a possible outcome is unreasonable.

Submissions

  1. [14]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.

Respondent's submissions

  1. [15]
    The Respondent submits that in accordance with natural justice, the Respondent has invited the Appellant to provide information and/or evidence prior to considering if a decision under s 187(1) of the PS Act should be made. Accordingly, the Respondent contends that s 194(1)(b)(i) of the PS Act does not apply as a decision has yet to be made under disciplinary law.
  1. [16]
    The Respondent submits that neither ss 25 and 25A include a specific requirement for management action to be considered or taken and that cl 4.1 of the Directive was considered during the preliminary assessment of the matter. Additionally, the Respondent carefully contemplated the requirement of cls 5, 6 and 7 of the Directive and considered that Appellant's conduct was of significant seriousness that management action was not an appropriate method to address the Appellant's conduct. The Respondent further submits that cls 8.5(d) and 8.5(e) of the Directive has not been considered or applied as the Respondent has not made any decision regarding a disciplinary finding or proposed any disciplinary action.
  1. [17]
    The Respondent disagrees that an agreement was reached or accepted that termination was not a possible outcome during the conference as Mr Brendon Punch, who advocated on behalf of the Respondent, specifically disagreed with the Appellant's assertions that termination was not a possible outcome. The Respondent submits that where termination is removed from the possible disciplinary action, the decision would violate the Appellant's right to natural justice and in making such a predetermination prior to the Appellant being given an opportunity to present their case would introduce bias into the decision making process to the Respondent.
  1. [18]
    The Respondent notes that the NTSC does not propose termination as the disciplinary penalty to be imposed. The Respondent submits that it has an obligation to provide the Appellant with information regarding the disciplinary process and the NTSC provided reference to s 188 of the PS Act which outlines the discipline process and lists examples of possible outcomes. It is appropriate to inform the Appellant that termination may be one of a number of outcomes that may result from a disciplinary process. Accordingly, the Respondent submits this advice is within the scope of procedural fairness and ensures that the Appellant is aware of what may occur.
  1. [19]
    The Respondent acknowledges the lapse of time between the incident and the NTSC being issued and has attempted to resolve this matter in a timely fashion and has acted in good faith. The Respondent submits that the original NTSC was withdrawn and that the Respondent attempted to speak to the Appellant about the allegation prior to issuing a new NTSC letter.

Appellant's submissions

  1. [20]
    In summary, the Appellant relies on the submissions made in the appeal notice and further submits that:
  1. (a)
    on the materials before the Commission, the approach of the Respondent is not consistent with cl 8.5(e) of the Directive because the Respondent insists on including 'termination' as a possible outcome;
  1. (b)
    the Industrial Commissioner clarified in the conference that termination is unlikely in a practical sense, to which the Respondent's representative agreed; and
  1. (c)
    the lack of compliance with procedures and absence of timeliness in the process from the commencement of this matter, a period of almost two years, means that natural justice is not possible.

Respondent's submissions in reply

  1. [21]
    In summary, the Respondent relies on its submissions in response to the Appellant's appeal notice and further submits that:
  1. (a)
    the disciplinary process is only at the show cause process for disciplinary finding, as per cl 8.3 of the Directive;
  1. (b)
    the Respondent denies any lack of compliance with policies; and
  1. (c)
    any actions which could result in incorrect pathology results as a significant issue because:
  1. (i)
    pathology results are relied upon to diagnose and treat patients and any incorrect results could lead to misdiagnosis and the incorrect treatment being provided to patients. The potential results may include temporary or permanent harm to a patient, including death; and
  1. (ii)
    incorrect results could jeopardise Pathology Queensland's ability to maintain strict quality standards and accreditation set by the National Association of Testing Authorities; National Pathology Accreditation Advisory Council; AS/ISO 15189 titled Medical laboratories - Requirements for quality and competence; ISO 9001 titled Quality management systems; the Therapeutic Goods Administration regulations, and Clinical and Laboratory Standards Institute.

Further submissions of the Appellant

  1. [22]
    The Appellant filed further submissions with respect to the Respondent's claim that the appeal is not one that can be made under s 194(1)(b) of the PS Act, submitting the following:

…

  1. The Respondent submits that the discipline process is only at the show cause process for disciplinary finding, as per clause 8.3 of the Directive.
  1. The Disciplinary Process is found at Attachment One - Discipline Process to the Discipline HR Policy E10.
  1. The Discipline Directive:14/20 provides at paragraph 4.1:

"The Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. …"

  1. The Discipline Directive:14/20 provides at paragraph 4.2:

"Discipline is not appropriate for matters that may be dealt with:

(a) through management action…"

  1. Paragraph 8.3 of the Discipline Directive:14/20 provides the mechanism for the "show cause process for disciplinary finding". This is not a pre-process element. It is a fundamental step within a disciplinary process that has already commenced.
  1. The Respondent claims this element for the Appellant is an investigation process, a show cause as to whether a disciplinary process should be undertaken.
  1. That is not an option within the process provided within the Discipline Directive:14/20 and the Discipline HR Policy E10.
  1. Whether by intention or otherwise, the Respondent has made a decision to bypass management action and to proceed to a show cause.
  1. The decision to bypass management action was not an option within the process available to the respondent.
  1. The decision that has been made has been to bypass management action and to explore a show cause, initiating the disciplinary component of the review.
  1. The Respondent is claiming to be determining whether discipline should be considered when in fact they are at paragraph 4.1 of the process.
  1. This is effectively a decision that proceeds to clause 8.3 of the Discipline Directive:14/20 and into that element of the process.
  1. The Respondent cannot claim there is no application of section 194(1)(b).
  1. The Respondent is claiming to be at a preliminary stage to paragraph 4 of the process when in fact they are actively involved in the disciplinary process.

Consideration

  1. [23]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [24]
    The Appellant submits that this appeal is made pursuant to s 194(1)(b) of the PS Act. Section 194(1)(b) provides that an appeal may be made against:
  1. (b)
    a decision under a disciplinary law to discipline—
  1. (i)
    a person (other than by termination of employment), including the action taken in disciplining the person; or
  1. (ii)
    a former public service employee by way of a disciplinary declaration made under section 188A, including if the disciplinary action that would have been taken was termination of employment;
  1. [25]
    This appeal cannot be made pursuant to s 194(1)(b) as this section only provides an avenue to appeal against a decision to discipline a person. No such decision has been made in this matter.
  1. [26]
    The appeal may be made pursuant to s 194(1)(eb) of the PS Act which provides:

(eb) a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);

  1. [27]
    I have interpreted the Appellant's submissions as indicating that the appeal is against the decision to issue the NTSC, which the Appellant believes to be unfair and unreasonable, i.e. a fair treatment decision pursuant to s 194(1)(eb).
  1. [28]
    The essence of the Appellant's grounds of appeal is the contention that the process was unfair due to the Respondent's failure to comply with a number of procedural steps outlined in the PS Act and the Directive.
  1. [29]
    The Appellant submits that the Respondent did not comply with ss 25 and 25A of the PS Act. Section 25 outlines management and employment principles and s 25A outlines the positive performance management principles. The Appellant has not particularised which part of either section has been contravened by the Respondent, submitting only that the Respondent did not engage in the required management processes and steps that are to be taken prior to the issuing of a show cause letter.
  1. [30]
    I note that ss 25 and 25A of the PS Act relate to management principles rather than disciplinary processes. In particular circumstances, it may be that conduct may be subject to appropriate management intervention rather than discipline. The Respondent had determined that management action was not an appropriate method to address the Appellant's conduct in this matter which is a reasonable assessment in the circumstances.
  1. [31]
    The Appellant submits that steps were not taken in accordance with the Directive, specifically cls 4.1, 4.2, 8.5(d), and 8.5(e).
  1. [32]
    Clause 4.1 of the Directive states the following:

4.1  Disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best hope for:

•  the cessation of unacceptable conduct

•  early resolution

•  preserving working relationships, and

•  avoiding an unnecessary and disproportionately protracted dispute.

  1. [33]
    Clause 4.2 of the Directive states the following:

4.2  Discipline is not appropriate for matters that may be dealt with:

  1. (a)
    through management action, which may include use of alternative dispute resolution (ADR), use of warnings, or other management action that is reasonable in the circumstances
  1. (b)
    under the directive on positive performance management.
  1. [34]
    The Appellant's submissions appear to rely upon cl 4.2 to indicate that it was not appropriate for the Respondent to pursue a disciplinary process in this matter. Clause 4.2 provides that discipline is not appropriate in the circumstances outlined, however the Respondent has reasonably determined that this matter does not fall into that category of matters to be dealt with through management action.
  1. [35]
    Clauses 4.1 and 4.2 of the Directive must also be read in context. I note that cl 4.3 of the Directive confirms the following:

4.3  There will be occasions when it will be necessary and appropriate for a chief executive to commence and complete a disciplinary process, however, the purpose of discipline is to promote integrity. Discipline is as much about maintaining a 'disciplined workforce' as implementing supportive and corrective actions for an employee who is the subject of a disciplinary process.

  1. [36]
    The Respondent outlined that they consider any action that could result in incorrect pathology results as a significant issue in that they could lead to misdiagnosis and incorrect treatment being provided to patients and could jeopardise Pathology Queensland's ability to maintain strict quality standards and accreditation. This determination was open to the Respondent and not unreasonable in the circumstances.
  1. [37]
    The Appellant referred to cl 8.5(d) of the Directive, which is outlined as follows:

8.5  Show cause process for proposed disciplinary action

…

  1. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee’s explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. [38]
    The Appellant also referred to cl 8.5(e) of the Directive, which is outlined as follows:
  1. (e)
    A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.
  1. [39]
    Neither cls 8.5(d) or 8.5(e) are relevant to this appeal. A disciplinary finding has not yet been determined nor has any disciplinary action been proposed. Clause 8.5(e) refers to a 'show cause notice on disciplinary action' which has not been issued. Consequently, there is no requirement that the Respondent consider cls 8.5(d) and 8.5(e) at this stage of the process.
  1. [40]
    The Appellant submits that an agreement was reached at a conference held at the Commission that termination was not a possible outcome of this process. The Respondent disputes this submission, noting that their representative at the conference disagreed with the assertion that termination was not a possible outcome. It seems to me that there was no meeting of minds as to whether termination was a possible outcome at the conference. It was also unnecessary to consider any disciplinary action at the point of the process at which the conference was conducted as allegations had not been substantiated.
  1. [41]
    The Appellant's submissions regarding penalty are misconceived in that they relate to a disciplinary penalty that has not been considered. The letter from Mr Bricknell simply requests that the Appellant respond to allegations. The allegations have not been substantiated and no penalty has been proposed. The NTSC refers to the sections of the PS Act that may be grounds for discipline and the range of penalties but does not refer specifically to any particular penalty such as termination. The reference to ss 187 and 188 outlines the potential grounds for discipline and possible penalties based on the information currently available to Mr Bricknell. This is a necessary inclusion to ensure the Appellant is informed of the range of possible outcomes in the event that the allegations are substantiated. A failure to include reference to such grounds and the range of potential disciplinary actions may well be considered a failure of natural justice if any such disciplinary action is ultimately to be taken.
  1. [42]
    The Appellant submits that the lack of timeliness in the process from the commencement of the matter means that natural justice is not possible. The length of time between the incident and the issuing of the NTSC, being 18 months, is partially a consequence of the original NTSC being withdrawn. Whilst this is in no way due to the actions of the Appellant, I am not persuaded that the Appellant has suffered significant prejudice as a result of the delay. There is no evidence to suggest that natural justice has not been afforded in this matter.
  1. [43]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[7] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[8]

  1. [44]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances.
  1. [45]
    Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances.

Order

  1. [46]
    I make the following order:

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

Footnotes

[1] IR Act s 562B(2).

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

[3] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act.

[4] IR Act s 562B(3).

[5] Substance of allegations occurred in October 2019.

[6] In accordance with s 190 of the PS Act.

[7] [2019] QSC 170.

[8] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Jenkins v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Jenkins v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 12

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    24 Jan 2022

Appeal Status

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

Cases Cited

Case NameFull CitationFrequency
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

Case NameFull CitationFrequency
Nye v State of Queensland (Queensland Corrective Services) [2024] QIRC 371 citation
1

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