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  4. Phillips v State of Queensland (Department of Transport and Main Roads) - [2022] QIRC 120

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Phillips v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 120

Phillips v State of Queensland (Department of Transport and Main Roads)[2022] QIRC 120

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v State of Queensland (Department of Transport and Main Roads) [2022] QIRC 120

PARTIES:

Phillips, Helen

(Appellant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

PSA/2021/389

PROCEEDING:

Public Service Appeal – appeal against a decision under a directive

DELIVERED ON:

1 April 2022

MEMBER:

HEARD AT:

Hartigan IC

On the papers

ORDERS:

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 – appeal against a direction to attend an independent medical examination (IME) – where appellant has been continually off work for an extended period of time – where appellant has provided medical certificates in support of absence – where appellant directed to attend an IME – where appellant sought a review of the direction on the basis that the decision to issue the direction was not made in compliance with the procedural requirements of the Public Service Act 2008 (Qld) or the Independent Medical Examinations Directive 10/21 – where decision maker provided the basis and the reasons for the decision to direct the appellant to attend an IME – where decision fair and reasonable – decision confirmed

LEGISLATION:

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

Public Service Act 2008 (Qld), ss 174, 175, 179AA, 194 and 201

Independent Medical Examinations Directive 10/20, cls 4, 5, 7 and 8

CASES:

Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245

Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209

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

Reasons for Decision

Introduction

  1. [1]
    Ms Helen Phillips ('Ms Phillips') is employed by the State of Queensland (Department of Transport and Main Roads) ('the Department'), as a permanent full-time Manager (Development Compliance and Support) in the Transport Strategy and Planning Branch of the Policy Planning and Investment Division.
  1. [2]
    Ms Phillips appeals a decision of the Department dated 22 October 2021. This decision confirmed an earlier decision of the Department dated 6 September 2021, directing Ms Phillips to submit to an Independent Medical Examination ('IME') pursuant to ss 174 and 175 of the Public Service Act 2008 (Qld) ('PS Act'). The IME was scheduled to occur on 8 October 2021.
  1. [3]
    It is not disputed that Ms Phillips has been continuously absent from duties since on or around 25 May 2020 and that Ms Phillips has provided medical certificates stating she is unfit for work for the period of her absence.
  1. [4]
    On 12 November 2021, Ms Phillips filed an appeal notice in the Industrial Registry in respect of the decision made on 22 October 2021. Ms Phillips relies on the following grounds in support of her appeal:
  1. (a)
    the decision made by the decision maker did not consider whether the decision to direct Ms Phillips to attend an IME on 6 September 2021 was made in compliance with the conditions in ss 174 and 175 of the PS Act and the procedural requirements of the Public Service Commission Independent Medical Examinations Directive 10/21;
  1. (b)
    the decision maker did not access all the information available to be considered for the original decision, contrary to cl 7.4 Directive 10/20; and
  1. (c)
    the decision did not include the decision maker's basis and reasons for the decision, contrary to the requirements of cl 7.6 of Directive 10/20.
  1. [5]
    On 6 December 2021, the Department wrote to the Industrial Registry advising that the IME appointment scheduled to occur on 9 December 2021 had been cancelled.
  1. [6]
    Accordingly, on 7 December 2021, the Commission wrote to the parties and provided them with an opportunity to make further submissions with respect to whether the Department had withdrawn the direction for Ms Phillips to attend the IME appointment on 9 December 2021, and, if that was the case, what utility was there for the Commission to consider Ms Phillips' appeal of the direction to attend the IME appointment.
  1. [7]
    Both parties provided further submissions addressing the Commission's queries.
  1. [8]
    The Department in its written submissions[1] confirmed that the IME appointment for 9 December 2021 had been cancelled, however the direction for Ms Phillips to attend an IME appointment had not been withdrawn and may be rescheduled, pending the outcome of this appeal.
  1. [9]
    The appeal is made pursuant to s 197 of the PS Act which 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 (Qld) ('the IR Act') by the Queensland Industrial Relations Commission.
  1. [10]
    Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicates the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable.
  1. [11]
    I must decide the appeal by reviewing the decision appealed against.  The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
  1. [12]
    For the reasons contained herein, I have found that the decision was fair and reasonable.

The decision

  1. [13]
    The decision dated 22 October 2021 had regard to the factors raised by Ms Phillips in her internal review request and is set out as follows:

…

My considerations

I have reviewed each of the reasons you have outlined in your internal review request and all the information before me and set out my considerations and decision below. For ease of reference, I will  be using sub-headings as described above in your reasons for seeking the internal review request to explain my considerations of your reasons prior to outlining my final decision.

  1. The direction to attend the IME has not considered whether 'another reason' may be causing your absence.

In support of this matter, you have referred to the Directive and Public Service Commission Guide - Managing employee health, safety and wellbeing — independent medical examinations (the Guide) as  follows:

  • section 5.4 of the Directive - 'where an employee's absence is relied upon, the chief  executive (or their delegate) must reasonably suspect it is caused by mental or physical illness or disability and not another reason", and
  • section 9.4 of the Guide - 'There must be information that suggests there is an illness or disability that is causing the absence and this information must be explained to the  employee in the letter requiring them to attend the IME'

I note you have been continuously off work since 25 May 2020 and in support of your absence you have provided medical certificates from your treating practitioner, Dr Margaret Cotter. Each of the  medical certificates states you are unfit for work due to a medical condition, or words to this effect.

Additionally, you have provided emails advising Dr Cotter does not recommend you return to work and the IME conducted by Dr Navin, on 15 January 2021 also confirms you are currently suffering from a medical condition.

Having regard to the letter dated 6 September 2021 (the Direction Letter) directing you to submit to the IME on 8 October 2021, I consider the section of the letter titled 'Grounds for direction' thoroughly explains why Mr Hannan was of the view that your absence was [sic] caused by a mental or physical illness and the evidence relied upon to form this view.

In your review request you have specifically stated that the Direction Letter has failed to acknowledge or properly consider the following points:

  1. (a)
    The request by Dr Cotter on 31 May 2021 for information about workplace matters

The Direction Letter has referred to the request for information from Dr Cotter and in my view thoroughly explained why the information requested by Dr Cotter was not provided. 

Mr Hannan made the decision not to provide you with information regarding workplace matters out of genuine concern for your health and well-being. He considered that providing you with workplace information while you were on sick leave had the potential to exacerbate your current medical condition. This decision was also made based on the medical opinion of Dr Navin, that your medical condition has connections to your 'perceptions of management and interpersonal and industrial matters at the workplace'.

I consider Mr Hannah made a responsible decision based on the circumstances and has acknowledged this in the Direction Letter.

  1. (b)
    Your grievance submitted on 21 July 2021

I confirm that Mr Hannan has not been provided with your grievance of 21 July 2021 and has  had no involvement in the employee grievance process. Ms Alarna Lane-Mullens, Chief People and Culture Officer, was appointed as the delegate to ensure an independent and impartial decision maker considered and decisioned your grievance. I consider your  employee grievance is a separate process to the matter relating to your absence and  direction to attend an IME. As the two matters are treated independently of each other, I have not considered your grievance as part of my deliberations for your internal review request.

For these reasons, I do not consider Mr Hannan's Direction Letter has failed to acknowledge or consider your grievance but has maintained appropriate separation and independence.

  1. (c)
    Another reason for your absence

Based on the evidence before me, at no time since your leave commenced have you proffered 'another reason' for your leave. If your absence from work was due to another reason, I consider that you have had ample time and opportunities to raise this with Mr Hannan or your HR representatives

Since August 2020 Mr Hannan has sent six letters requesting medical information to understand your absence. Rather than communicate openly with the department and cooperate with the requests, I consider you have elected to not participate and provide the information as requested, which I consider to be reasonable in the circumstances.

I remind you that the department is concerned for your health and well-being and wants to work with you to support you in returning to work. The actions taken to date by Mr Hannan to seek medical information is for the purpose of understanding your illness that has contributed to your current absence, how your illness might be impacting on your ability to attend work and what reasonable adjustments can be implemented to support a return to the workplace.

  1. Questions asked of Dr Lenardon are not consistent with section 4.4 of the Directive

In your internal review request you have raised concerns with several of the questions within the letter  to Dr Lenardon, dated 6 September 2021 (the Letter to the Doctor), as you are of the view that they are not consistent with section 4.4 of the Directive which states:

'The chief executive is to ensure that processes are fair and without bias, provide for impartiality and inform and involve the employee. When making a decision about an IME for an employee, it is expected that the chief executive will also comply with the IME guideline, privacy obligations and any other relevant legislation'.

Your concerns and my responses are outline below.

  1. (a)
    Questions referring to performance

'The reason for the direction to attend an IME was given as absence from the workplace Unsatisfactory performance was not given as a reason for the direction and no evidence was provided to me in the IME Direction letter about unsatisfactory performance of duties, yet a significant proportion of the questions in the list of questions for Dr Lenardon relate to performance issues'.

You have correctly stated that the direction to attend the IME is on the basis of 'absence' and not 'performance of your duties'. As such, I confirm that amendments are necessary to the Letter to the Doctor to refer to 'absence' and not 'performance'.

  1. (b)
    Questions asking about diagnosis and treatment

'Section 10.2 of the Guideline includes: "The medical examiner is engaged by the employer to provide an opinion under the PS Act; they are not engaged to provide a diagnosis or treatment information " Dr Lenardon has been asked specific diagnosis and treatment questions'

The Guide states '[t]he purpose of the IME under the PS Act is to provide the decision maker with a doctor's opinion on whether an employee has a mental or physical illness or disability that may adversely affect the employee's performance or current absence'. The subsequent decisions made following receipt of this report will be subject to the medical advice and information in the IME report and the employee's work performance or continued absence.

Having regard to the purpose of the IME, I consider the questions relating to treatment were posed to Dr Lenardon, to follow up on the medical opinion of Dr Navin.

Dr Navin opined that you would benefit from formalised care to assist in your recovery and ultimately a return to work. Upon my review of the materials and questions, I consider Mr Hannan was seeking an opinion only on whether you were taking action to aid your recovery and ultimately progression to returning to work, not the specific details or information about the treatment plan itself.

I agree that question 5 is not relevant to your circumstances. However, I am of the view that the question 3 and 4 regarding whether or not you are receiving treatment and compliant with the recommended treatment relevant to the status of your medical condition and consistent with the opinions of Dr Navin.

For these reasons I find the questions 3 and 4 regarding treatment within scope of the purpose of an IME and consistent with section 4.4 of the Directive.

Notwithstanding my findings, I concede that question 3 and 4 can be combined and re- framed to explain Mr Hannan's intentions and seek only the necessary information to understand the current status of your medical condition and to avoid any ambiguity in this regard.

  1. (c)
    Questions referring you to providing you with the report

'The final question to Dr Lenardon asking: "Should this report be provided to Ms Phillips or to her treating medical practitioner?" is not a lawful question because section 177(3,5) of the Public Service Act 2008 requires that unless Dr Lenardon deems release of her report to me would be prejudicial to my mental or physical wellbeing, the report must be given to me. This question to Dr Lenardon of release of the report to me specifically was covered in the previous question'.

The purpose of question 16 was to expressly ask Dr Lenardon whether the IME report should be provided to you having regard to the question above this, that is will providing you with a copy of the report be prejudicial to your mental well-being.

In my view, question 16 is for your benefit and aimed at protecting you and is by no means intended to disadvantage you. I consider Mr Hannan has taken a proactive step in asking this question of Dr Lenardon and is meeting his duty of care obligations towards you. This question ensures Dr Lenardon, in conducting the IME, turns his mind to whether the report should be given to you and I consider the inclusion of this question removes any doubt and assumptions being made by the department.

There is nothing before that leads me to consider this question is unlawful and not consistent with section 4.4 of the Directive.

…

Having regard to my considerations outline above, I am of the view that Mr Hannan's direction to you to submit to an IME was made in accordance with section 174 of the PS Act and I support the direction of Mr Hannan on 6 September 2021 to direct you to attend an IME.

  1. [14]
    The decision went on to list the procedural defects in the questions asked of Dr Lenardon and noted that a new direction letter would be issued to Ms Phillips, which would include a number of amended questions in accordance with the findings set out in the decision.

Relevant legislation and Directive

  1. [15]
    Section 194 of the PS Act provides for the decisions against which appeals may be made as follows:

194  Decisions against which appeals may be made

  1. (1)
    An appeal may be made against the following decisions –
  1. (a)
    a decision to take, or not take, action under a directive;

…

  1. [16]
    Chapter 5, Part 7 of the PS Act provides that an employee may be directed to attend an IME on the basis of mental or physical incapacity.
  1. [17]
    Section 174 of the PS Act provides as follows:

174  Application of pt 7

This part applies to a public service employee if—

  1. (a)
    the employee is absent from duty or the employee’s chief executive is reasonably satisfied the employee is not performing his or her duties satisfactorily; and
  1. (b)
    the chief executive reasonably suspects that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.             
  1. [18]
    Section 175 of the PS Act provides as follows:

175 Chief executive may require medical examination

The chief executive may-

  1. (a)
    appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
  2. (b)
    require the employee to submit to the medical examination.
  1. [19]
    Section 179AA of the PS Act provides that a directive of the chief executive may provide for matters relevant to how Part 7 is to be applied in relation to a public service employee, and that in acting under Part 7, a chief executive must comply with any such relevant directive.
  1. [20]
    The relevant directive in this matter is Directive 10/20 Independent Medical Examinations ('Directive 10/20'). Directive 10/20 commenced on 25 September 2020 and relevantly provides for the practical application of ss 174 and 175 of the PS Act.
  1. [21]
    Clause 1 of Directive 10/20 provides for the purpose of the directive in the following terms:

This directive affirms the government’s commitment to workplace health, safety and wellbeing for all employees by clarifying the practical application of sections 174 and 175 of the Public Service Act 2008 (PS Act), by providing that an employee may seek an internal review and may appeal a decision requiring them to submit to an independent medical examination (IME) where the PS Act conditions have not been met.

  1. [22]
    Clause 4 of Directive 10/20 provides for the relevant principles as follows:

4.1  The Queensland Government is committed to supporting public service employees who experience illness or injury to maintain their employment, including, where appropriate, through the application of reasonable adjustment.

4.2  It is expected that managers and employees will work together to:

  1. (a)
    manage work performance and absence in an appropriately supportive manner, including where a medical condition may be a contributing factor
  2. (b)
    where an IME report has been obtained, explore opportunities for continuing employment in line with it before considering ill health retirement of an employee under the PS Act
  3. (c)
    communicate regularly, openly and constructively, including while the employee is absent, or during performance management processes. Mutual information sharing is expected to occur and is likely to improve outcomes for employees’ health, safety, wellbeing and performance.

4.3  The PS Act provides a mechanism for seeking independent medical advice. A PS Act IME under section 175 is to be used only where the conditions in section 174 have been met.

4.4  The chief executive is to ensure that processes are fair and without bias, provide for impartiality and inform and involve the employee. When making a decision about an IME for an employee, it is expected that the chief executive will also comply with the IME guideline, privacy obligations and any other relevant legislation.

4.5  The directive provides an employee with the right to seek an internal review of a decision requiring them to submit to a medical examination under sections 174 and 175 of the PS Act. This allows both the employee and the chief executive to ensure the conditions of the PS Act have been met.

4.6  The directive provides a mechanism for appealing a requirement to submit to an independent medical examination and confirms the expectation that processes under sections 174-179 of the PS Act will be implemented with appropriate support, sensitivity and respect in accordance with the management and employment principles of the PS Act.

4.7  The chief executive will make appropriate delegations of the decision-making powers under sections 174-179 of the PS Act to support the internal review process in clause 6.

4.8  Under the Human Rights Act 2019 decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

  1. [23]
    Clause 5 of Directive 10/20 provides for making the decision to require an employee to sit a medical examination and is set out as follows:

5.1 In some cases, early communication and management efforts may not be successful in addressing performance issues or a current absence.

5.2  Where the conditions in section 174 are satisfied, section 175 of the PS Act provides that a chief executive may appoint a doctor to examine the employee and give the chief executive a written report on the examination. It also provides that a chief executive may require the employee to submit to the medical examination. This is a lawful direction that does not require the employee’s consent. Failure to comply may be grounds for discipline action.

5.3  The conditions in sections 174(a) and (b) of the PS Act must both be met before a chief executive may require the employee to submit to a medical examination. Firstly, section 174(a) requires that an employee is either absent from duty (which is a question of fact) OR the chief executive must have sufficient grounds, supported by evidence, to be reasonably satisfied the employee is not performing their duties satisfactorily. Secondly, in section 174(b), the chief executive must have sufficient grounds, which have been documented, to support their reasonable suspicion that the employee’s current absence or unsatisfactory performance is caused by a mental or physical illness or disability.

5.4  Where an employee’s absence is relied upon, the chief executive must reasonably suspect it is caused by mental or physical illness or disability and not another reason, for example, a suspension unrelated to mental or physical illness or disability.

5.5  The chief executive is to provide the employee with at least 28 days notice of a medical examination appointment unless the employee agrees to a shorter notice period. The direction to require an employee to submit to a medical examination must set out the basis and reasons for the direction under section 174, including the information provided to the IME doctor. The direction must also explain the employee’s right to seek an internal review or appeal the decision and the timeframes.

  1. [24]
    Clause 7 of Direction 10/20 provides an overview of the process that occurs when an employee requests an internal review of a direction to attend a medical examination appointment, and is set out in the following terms:

7.1  An employee may, within 14 days of receiving the notice to attend a medical examination appointment, notify the chief executive in writing that they are seeking an internal review of the decision requiring them to submit to a medical examination.

7.2  Upon the chief executive receiving notice of an internal review request, the IME appointment should be cancelled, and rescheduled subject to the outcome of the review decision.

7.3  The employee must provide reasons for requesting the review explaining why they believe the requirement to submit to an IME does not meet the PS Act conditions. A chief executive may extend the time for the employee to provide reasons for requesting the review, taking into account the employee’s individual circumstances.

7.4  The internal review should determine whether the decision was made in compliance with the conditions in section 174 of the PS Act and the procedural requirements of this directive. The internal reviewer will have access to all information considered for the original decision.

7.5  The internal review is to be conducted within the agency by a different decision maker. Where practicable, the review decision maker should be senior to the original decision maker and removed from the original decision making process. An internal review should not be undertaken by a person who made or recommended the original decision.

7.6  The review decision maker must provide the employee with written notice of the review employee providing their reasons for review under clause 7.3, or a longer time with the employee’s agreement.

7.7  An employee may appeal the review decision made under clause 7 of this directive.

  1. [25]
    Clause 8 of Directive 10/20 provides for an employee's appeal right in relation to a requirement to submit to a medical examination and provides:

8.1  Section 194(1)(a) of the PS Act allows for an appeal of a decision made under a directive. An employee may seek either an internal review or an appeal of a decision requiring them to submit to a medical examination, on the basis the decision does not satisfy the conditions of section 174 of the PS Act. Where the employee does not seek an internal review under clause 7, an appeal must be made within 21 days of the decision, or within the time determined by the Queensland Industrial Relations Commission (QIRC).

8.2  Where the employee has sought an internal review under clause 7, and the internal review decision requires them to submit to a medical examination, the employee may, under this directive, appeal the internal review decision on the basis that it does not satisfy the conditions of section 174 of the PS Act. The appeal must be made within 21 days of the internal review decision or within the time required by the QIRC.

8.3  The internal review and appeal rights may not be exercised concurrently.

8.4  An appeals guide has been designed to help explain the appeal process and can be found on the QIRC website.

Whether the decision was fair and reasonable

Appeal ground one – the decision maker did not consider whether the decision to direct Ms Phillips to attend an IME on 6 September 2021 was made in compliance with the conditions in s 174 of the PS Act and procedural requirements of Directive 10/20, contrary to the requirements of cl 7.4 of Directive 10/20

  1. [26]
    Ms Phillips submits that cl 4.3 of Directive 10/20 requires a direction to be used only when the conditions in s 174 of the PS Act have been met and cl 5.3 of Directive 10/20 requires the chief executive to have sufficient grounds, which have been documented to support their reasonable suspicion that the employee's current absence or unsatisfactory performance is caused by mental or physical illness, or disability and cl 5.5 of Directive 10/12 requires the decision to set out the basis and reasons for the direction.
  1. [27]
    Ms Phillips contends that the reason why Mr Hannan has a 'reasonable suspicion [Ms Phillips] has a mental illness' has not been provided to her, rather Mr Hannan states in the Direction, it was because he has no current information about Ms Phillips' medical condition.
  1. [28]
    Mr Hannan's decision in issuing the Direction is not the decision under review. Ms Phillips appeals the internal review decision authorised by Mr Magoffin.
  1. [29]
    In any event, Mr Hannan’s decision stated at the outset under the heading, 'Absence from the workplace (May 2020 to present)' as follows:

You have been on continuous sick leave since 25 May 2020. You have provided medical certificates from your treating medical practitioner, Dr Margaret Cotter, stating you are unfit for work due to a medical condition. A list of medical certificates received is attached for your reference.

  1. [30]
    Mr Hannan's reasons continue by stating that as the medical certificates did not provide specific details about Ms Phillips' medical condition, four attempts had been made throughout 2020 to seek additional medical information from Ms Phillips’ treating medical practitioner. Ms Phillips responded to those requests for information stating that the information sought would not be provided.
  1. [31]
    Mr Hannan also refers to Ms Phillips' attendance at an IME on 15 January 2021. The IME was conducted by Dr Navin who provided a report of 27 January 2021. Mr Hannan states that:

On 9 February 2021, I sent an outcome letter to you advising that I accepted the medical advice and recommendations from Dr Navin. In particular, I noted that participation in a formalised treatment plan over a period of three months would be beneficial to manage your medical condition, and ultimately assist in your return to work. Accordingly, I advised that I would be writing to you again prior to the end of the three-month period seeking updated medical advice on your progress to enable the Department to plan towards your return.

  1. [32]
    Mr Hannan, after referring to this history of the matter, concluded by stating that:

The intention of seeking the medical information from your treating practitioner was to gain an understanding of the injury/illness that has contributed to your absence, how your medical condition might impact on your ability to perform your substantive role, and any reasonable adjustments that could be considered to support your return to the workplace.

Where an employee is off work for an extended period due to a medical condition, it is reasonable for the Department to request medical advice from the employee's treating medical practitioner for the purposes mentioned above.

  1. [33]
    It is clear from the above analysis of Mr Hannan's decision that he had information in the form of medical certificates and the IME report of Dr Navin as to Ms Phillips' medical condition.
  1. [34]
    It appears that the purpose as to why the direction has been issued is to obtain more detailed information in relation to Ms Phillips' medical condition and what impact it may have on Ms Phillips' return to work. Accordingly, I do not accept Ms Phillips’ submission that she has not been provided the basis upon which Mr Hannan states that he formed a reasonable suspicion that Ms Phillips was absent due to a mental illness.
  1. [35]
    The decision subject to this appeal also directly considered Ms Phillips' basis for review that the direction to attend the IME had not considered whether 'another reason' may be causing her absence. Relevantly, after referring to cl 5.4 of Directive 10/20 and cl 9.4 of the Public Service Commission Guide - Managing employee health, safety and wellbeing – independent medical examinations guideline ('IME guide'), the decision maker stated as follows:

I note you have been continuously off work since 25 May 2022 and in support of your absence you have provided medical certificates from your treating practitioner, Dr Margaret Cotter. Each of the medical certificates states you are unfit for work due to a medical condition, or words to this effect. Additionally, you have provided emails advising Dr Cotter does not recommend you return to work and the IME conducted by Dr Navin, on 15 January 2021 also confirms you are currently suffering from a medical condition.

  1. [36]
    Further, the decision maker did consider Ms Philips' grievance submitted on 21 July 2021. The decision maker concluded that the employee grievance was a separate process from the matter relating to Ms Phillips' absence and the direction to attend an IME. The decision maker concluded that the two matters should be treated independently of each other and should properly be separated and independent from the consideration with respect to the IME.
  1. [37]
    The decision maker considered whether there may be another reason for Ms Phillips' absence and relevantly noted that on the information before the decision maker, at no time since Ms Phillips had commenced her absence had she proffered another reason for that absence. It was concluded that if Ms Phillips' absence from work was due to another reason, then she has had appropriate time to raise this with Mr Hannan or her human resource representatives.
  1. [38]
    In the matter of Dean-Braieoux v State of Queensland (Queensland Police Service),[5] his Honour Merrell DP considered a number of decisions (in the context of separate statutory regimes), which considered what might constitute 'reasonably suspects'. After considering the relevant authorities, Merrell DP provided the following summary, which may be used as a sound guide to the formation of a reasonable suspicion by a chief executive as contemplated by s 174(b) of the PS Act, as follows:

[39]  Therefore, having regard to the observations of Gray and Lee JJ, and Stone J in Goldie, and to the plurality in Ruddock:

  • for the suspicion of a chief executive (or his or her delegate) that a public service employee's absence is caused by mental or physical illness or disability to be reasonable, it must be justifiable upon objective examination of relevant material;
  • the reasonable suspicion should be placed on a spectrum, the spectrum being between certainty and irrationality and not too close to irrationality;
  • what is reasonable depends on all the circumstances of the case and all the circumstances must be considered;
  • all relevant doubts and circumstances, including contradictory or insufficient evidence, should be taken into account; and
  • the reasonableness of any suspicion formed by the decision maker must be justifiable in light of the facts available to him or her at a particular time or what was reasonably capable of being known at that time.
  1. [39]
    As noted by the decision maker in the decision, Ms Phillips' ongoing absence from work has been supported by the provision of medical certificates which identifies that she is unfit for work. In addition to that evidence, the decision maker also had regard to the correspondence of Dr Cotter and the opinion contained in the report of Dr Navin. I consider on the basis of this information, that it was justifiable (and reasonable) for the decision maker to form a suspicion that Ms Phillips' absence is caused by mental or physical illness or disability.
  1. [40]
    Further, it is clear from the terms of the decision that the decision maker had regard to whether there was any further alternative information which might explain Ms Phillips' absence and noted that no further alternative information had been proffered by her in relation to that.
  1. [41]
    Given the medical information before the decision maker, the suspicion formed for the explanation of Ms Phillips' absence is reasonable.
  1. [42]
    It can be inferred from Ms Phillips' submissions[6] (see (2)(ii)), that she considers that there is evidence of another reason which might explain her absence. Ms Phillips refers to these matters as follows:
  1. (ii)
    …

a.  The information Mr Hannan had available to him (that I am aware of) with regards to my absence are:

-  the complaint which was made against me by a team member (described in pages 1-5 of Attachment 4) and his decision about the complaint (Attachment 5). Mr Hannan was the decision-maker.

-  the incident on 23 December 2019 where I was physically threatened and abused in the workplace (described in pages 2-3 of Attachment 4).

-  the public interest disclosure I made in April 2020 and acknowledged on 18 June 2020 (described in pages 12-18 of Attachment 4). Mr Hannan was the decision-maker.

-  the change to my reporting arrangements so that I reported to the Executive Director (one of the subject officers of my public interest disclosure), rather than the Director position which was my normal reporting relationship until I had signed an employee performance and development agreement (described in 6 Jan 2020 entry on page 2 of Attachment 4).

-  report from a cultural review of my team he initiated in July 2020 (described in pages 5-6 of Attachment 4).

-  the position description I was appointed to in 2014 and the position description amended in August 2020, which was altered to my detriment and to remove me from responsibility for the oversight role of the matters I raised in the public interest disclosure I made in April 2020 was raising concerns about.

- IME report received by Mr Hannan on 22 January 2021 which was requisitioned by his direction of 30 Nov 2020, directing me to attend an IME appointment on 15 January 2021. (Attachment 2)

- the request of 31 May 2021 from my treating doctor for information about the work-related circumstances relevant to my absence. (Attachment 1)

- TMR’s Case Management Service Model v2.2 approved by Chief People and Culture Officer on 24 May 2021, which states “IME discussions are collaborative between local HR, HR CMU and the Rehabilitation and Injury Management team. HR CMU are informed or consulted at each step of the IME and/or ill health retirement process, depending on the complexity of the matter”. (Attachment 6)

- Transport and Main Roads Safety Charter approved by Mr Neil Scales (Director General) on 13 October 2020. (Attachment 7)

- Department of Transport and Main Roads Anti-workplace bullying, sexual harassment and unlawful discrimination policy statement approved by Mr Neil Scales (Director General) on 21 February 2021. (Attachment 8)

- A message from Neil Scales on the TMR intranet 24 March 2021 about the Anti-Workplace Bullying, Sexual Harassment and Unlawful Discrimination Policy Statement, in particular, “…To be clear, there is absolutely zero tolerance for inappropriate behaviour here at TMR. Everyone has the right to come to work and feel safe, regardless of where they work or the type of work they do.” (Attachment 9)

  1. [43]
    Whilst some of the matters referred to by Ms Phillips in the list above support a conclusion that Ms Phillips was absent because of a medical condition, it is difficult, without greater particularity, to determine the relevance of the remaining matters and how Ms Phillips contends they might be an explanation for her absence. Unfortunately, Ms Phillips' submissions do not address the relevance of these matters. It is trite to note, that, for instance, the lodging of a complaint or grievance by an employee, does not, without further explanation, provide a basis for an employees' lengthy absence from the workplace.
  1. [44]
    I am not satisfied that Ms Phillips has established the matters she has sought to rely on in appeal ground one and consequently I do not consider the decision to be not fair and reasonable on that basis.

Appeal ground two - the decision maker did not access all the information available to be considered for the original decision, contrary to cl 7.4 Directive 10/20

  1. [45]
    Ms Phillips contends that the information before Mr Hannan, who issued the direction to attend the IME, had available to him, are those documents listed in attachment A of the decision letter/ internal review IME. Ms Phillips contends that that list of documents does not include a significant amount of relevant information. Unfortunately, Ms Phillips does not identify what information is not included in the list of documents and what the potential effect of the absence of that information is.
  1. [46]
    It could perhaps be inferred from Ms Phillips' submission that, the other information Ms Phillips refers to, relate to the grievance and/or other workplace related matters that have been placed in abeyance whilst she is absent from the workplace.
  1. [47]
    Whilst that information may provide some factual context in relation to Ms Phillips' absence from the workplace, they do not detract from the evidence before the decision maker that Ms Phillips was absent from work because of a medical condition.
  1. [48]
    The Respondent submitted that the material before the decision maker was the information considered by Mr Hannan when he issued the direction for Ms Phillips to attend the IME. The Respondent details that the documents include emails and letters exchanged between Ms Phillips and Mr Hannan between the period of 24 June 2020 to 6 September 2021, relevant to Ms Phillips' absence and medical conditions. The Respondent relevantly notes that the information with respect to what it describes as the 'side issues' was not included in the information before the original decision maker.
  1. [49]
    The onus rests on Ms Phillips to establish that the decision was not fair and reasonable. Whilst I accept that Ms Phillips considers all of the matters leading up to her absence from work may be relevant, regard must be had to what are the relevant considerations with respect to the operation of ss 174 and 175 of the PS Act. For the purpose of this appeal, the relevant consideration is whether the chief executive formed a reasonable suspicion that Ms Phillips’ absence was caused by a mental illness.
  1. [50]
    As already noted above, there are a number of factual matters that support a conclusion that Ms Phillips' absence from the workplace was due to a mental illness.
  1. [51]
    I do not consider that Ms Phillips has established the matters referred to in ground two of her appeal notice and consequently, I do not consider that on this basis, that the decision was not fair and reasonable.

Appeal ground three - the decision did not include the decision maker's basis and reasons for the decision, contrary to the requirements of cl 7.6 of Directive 10/20

  1. [52]
    Ms Phillips contends that the decision by the decision maker did not include the basis and reasons for the decision, contrary to the requirements of cl 7.6 of Directive 10/20. Ms Phillips contends that the decision maker only affirmed the explanations provided by Mr Hannan in the IME direction, rather than provide a basis for the reasons. Ms Phillips provides several examples in support of her position in this regard as follows:[7]
  1. (4)
    The decision by the decision-maker did not include the basis and reasons for the decision, contrary to the requirements of clause 7.6 of the Directive.
  1. The review decision only affirms the explanations provided by Mr Hannan in his IME Direction letter of 6 September 2021 rather than provide a basis or reasons. Examples include:
  1. “Having regard to the letter date 6 September 2021 (the Direction Letter) directing you to submit to the IME on 8 October 2021, I consider the section of the letter titled ‘Grounds for direction’ thoroughly explains why Mr Hannan was of the view …”
  1. “I consider your employee grievance is a separate process to the matter relating to your absence and direction to attend an IME”, however he did not review the Individual Employee Grievance material so the basis for making that decision is not clear,
  1. “Mr Hannan made the decision not to provide you with information regarding workplace matters out of genuine concern for your health and well-being …. I consider Mr Hannan made a responsible decision based on the circumstances….”
  1. [53]
    At the outset of the decision, the decision maker correctly identifies what his role in conducting the review is as follows:

As the decision maker, it is my role to review the decision made by Mr Hannan and determine whether this decision was made in compliance with the conditions in section 174 of the Public Service Act 2008 (PS Act) and the procedural requirements of the Directive, having regard to the reasons you have submitted as part of your internal review request.

  1. [54]
    In undertaking the internal review process, the decision maker had regard to Ms Phillips' reasons for the internal review request, which were, in part, critical of the direction issued for her to attend an IME. As part of that process, the decision maker was required to have regard to the reasons provided by Mr Hannan in respect of the issuing of the direction. However, I am satisfied that the decision maker exercised an independent mind with respect to the matters raised by Ms Phillips.
  1. [55]
    The examples taken by Ms Phillips have not been provided within the context of the decision as a whole.
  1. [56]
    I am satisfied that in conducting the internal review, the decision maker has exercised an independent mind with respect to the matters raised by Ms Phillips and has provided reasons for the conclusions reached with respect to it. Relevantly, with respect to each ground relied on by Ms Phillips in the internal review process, the decision maker identifies the ground of review and further identifies the material relied on forming the conclusion reached.
  1. [57]
    Further, the decision maker exercised an independence of mind with respect to the decision and relevantly amended parts of the direction for Ms Phillips to attend the IME.
  1. [58]
    In this respect, whilst the internal review decision confirmed the direction for Ms Phillips to attend an IME, it also significantly amended the questions to be put to the independent medical examiner during the course of the examination.
  1. [59]
    Rather surprisingly, despite the decision identifying that a new direction letter is to be issued taking into account the amended questions, Ms Phillips contends that the direction was not amended to remove or alter the questions related to performance issues to be included in the correspondence to the new independent medical examiner. Unfortunately, Ms Phillips does not identify the particular questions she is referring to. On my perusal of the questions, they appear to have been amended by the decision maker and appear to be generally directed to the consideration of an opinion as it relates to Ms Phillips' absence from the workplace.
  1. [60]
    Accordingly, for these reasons, I do not consider that Ms Phillips has established the matters referred to in ground three of the appeal notice and subsequently I do not consider that she has established that the decision was not fair and reasonable on this basis.
  1. [61]
    For these reasons, I am satisfied that the decision was fair and reasonable.

Order:

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

Footnotes

[1] Filed on 7 December 2021.

[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).

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

[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

[5] [2021] QIRC 209.

[6] Filed on 23 November 2021.

[7] Appellant's submissions filed on 23 November 2021.

Close

Editorial Notes

  • Published Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2022] QIRC 120

  • Court:

    QIRC

  • Judge(s):

    Member Hartigan IC

  • Date:

    01 Apr 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
1 citation
Jump To
Cite 1 - [1995] HCA 10
Dean-Braieoux v State of Queensland (Queensland Police Service) [2021] QIRC 209
2 citations
Jump To
Cite 1 - [2021] QIRC 209
Cite 2 - [2021] QIRC 209

Cases Citing

Case NameFull CitationFrequency
Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 3292 citations
1

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