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Rooney v State of Queensland (Queensland Health)[2022] QIRC 267

Rooney v State of Queensland (Queensland Health)[2022] QIRC 267

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Rooney v State of Queensland (Queensland Health) [2022] QIRC 267

PARTIES:

Rooney, Timothy

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/352

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

15 July 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where appellant placed on absence management plans – where appellant did not maintain absenteeism of 4% or below – where allegation substantiated in relation to absenteeism – grounds for discipline under s 187(1)(a) of the Public Service Act 2008 – repeated unsatisfactory performance or serious underperformance – whether grounds for disciplinary action exist – whether decision fair and reasonable – decision confirmed

LEGISLATION AND

INSTRUMENTS:

Directive 14/20 Discipline cl 8

Directive 15/20 Positive performance management cls 5, 7

Industrial Relations Act 2016 (Qld) s 562B

Metro South Health Workforce Services Absence Management Procedure WS.E.P.R.1.9

Public Service Act 2008 (Qld) ss 186C, 187, 197

Queensland Health Human Resources Guideline for Absence Management

CASES:

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

Reasons for Decision

  1. [1]
    Mr Timothy Rooney is employed by the State of Queensland through Queensland Health as an Assistant in Nursing within the Metro South Hospital and Health Service ('the MSHHS'). He is employed on a permanent part-time basis, 64 hours per fortnight, within the Logan Hospital antenatal clinic. Mr Rooney has been employed by Queensland Health since 2009.
  2. [2]
    In a decision-letter dated 16 September 2021, and received on 20 September 2021, Ms Noelle Cridland, Executive Director Logan and Beaudesert Health Service, informed Mr Rooney she had substantiated an allegation regarding his absenteeism from the workplace ('the Decision').
  3. [3]
    By appeal notice filed 27 September 2021, Mr Rooney appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act'). Such an appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[1] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[2] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[3]
  4. [4]
    In my view, the decision was fair and reasonable.
  5. [5]
    My reasons follow.

Background

  1. [6]
    The MSHHS began managing Mr Rooney's absences in mid-2018. In or around July 2018, he was provided with a copy of the Metro South Health Workforce Services Absence Management Procedure WS.E.P.R.1.9 ('the AM Procedure') and his attendance records.
  2. [7]
    Thereafter, five meetings were held with Mr Rooney between 19 July 2018 and 2 May 2019 regarding his absences.[4]
  3. [8]
    Relevantly, in a meeting on 6 November 2018, Mr Rooney was requested to explore with his family other strategies he and/or the MSHHS could implement with a view to decreasing his absences to a more acceptable level. Mr Rooney was also reminded that accessing his long service leave and annual leave to offset sick days was not sustainable.[5]
  4. [9]
    In a follow-up meeting on 16 November 2018, Mr Rooney was unable to identify any strategies, however it was proposed his absence levels would continue to be monitored in the coming months. In the absence of an improvement, he was advised it would be necessary for the MSHHS to formally commence the AM Procedure.[6]
  5. [10]
    Further meetings were held with Mr Rooney in respect of his absence levels in the first half of 2019 which culminated in him and the MSHHS signing the first absence management plan ('AMP1') at a review meeting on 15 August 2019.[7] Mr Rooney was advised his absenteeism would be monitored over a six month period, whereafter the process would come to an end if he could demonstrate he was meeting the expectations set out in AMP1, namely a:
  • decrease in his absence levels to the yearly award entitlement of 8 days (or below 4% absenteeism); and
  • reduction in sick leave absences to enable Mr Rooney to access leave for other non-emergent purposes.[8]
  1. [11]
    Further review meetings were held on 24 October 2019, 18 February 2020 and 21 May 2020.[9] During the 21 May 2020 meeting, Mr Rooney was issued with a warning letter.[10] At the same time, Mr Rooney and the MSHHS signed a second absence management plan ('AMP2').[11]
  2. [12]
    The warning letter advised:

… you are hereby warned that if your absenteeism levels do not improve to the previously agreed level within three months, I will be required to refer the matter (including details of any previous incidents) to the Metro South Health Chief Executive for advice and consideration of action which may include a disciplinary process.[12]

  1. [13]
    On 25 August 2020, Mr Rooney participated in a further review meeting in respect of AMP2.[13] During the meeting, he was asked if there were any workplace factors influencing his absences from work and whether there was some value in discussing these issues with a view to providing further support around workplace adjustments. Mr Rooney expressed the view there was little that could be done in circumstances where he considered the absences were occurring due to events that were beyond his control.[14]
  2. [14]
    In the same meeting, Mr Rooney was advised the AM Procedure had progressed to Step 5 and would be referred to the Nursing Director, in the absence of satisfactory improvement.
  3. [15]
    In October 2020, Mr Rooney was formally requested to show cause regarding his failure to maintain an absenteeism level of 4% or less after the completion of two absence management plans.[15] Representatives from the QNMU responded to the show cause notice on behalf of Mr Rooney.[16] Within the correspondence, the QNMU requested the MSHHS take a compassionate and supportive approach to Mr Rooney's circumstances, which included his reliance on the ill-health of one of his children as the reason for some of his absences.
  4. [16]
    The MSHHS ultimately determined that allegation was not substantiated, and no grounds for disciplinary action existed.[17] In the alternative, local management action was proposed, which included the implementation of a further absence management plan and an offer for Mr Rooney to meet with representatives from the MSHHS to discuss flexible working arrangements.
  5. [17]
    A third absence management plan ('AMP3') was signed at a review meeting on 19 February 2021.[18] Further meetings were held with Mr Rooney in respect of his absenteeism on 25 March 2021, 29 April 2021 and 1 June 2021.[19]

Show Cause Process

  1. [18]
    In July 2021, Mr Rooney was invited to respond to an allegation regarding his absenteeism in the workplace. The allegation was set out as follows:

Since 22 February 2021, you have failed to maintain an absenteeism level of 4% or below after the completion of three (3) Absence Management Plans and one formal warning.[20]

Mr Rooney's Response

  1. [19]
    Mr Rooney responded to the show cause notice on 7 August 2021.[21] In his response, Mr Rooney:
  • acknowledged his high absence was negatively impacting the antenatal unit, and apologised to his Midwife Unit Manager and colleagues;
  • noted he and his partner have five children who they care for without family support;
  • submitted that if any of those children became unwell, it fell on either Mr Rooney or his partner to take time off work to care for them;
  • noted his partner is a clinical nurse based at Logan Hospital, and highlighted it had been a difficult year for her as the hospital had been short staffed;
  • submitted it consequently fell on him to take carer's leave to undertake a greater share of the care for his children;
  • noted that one of his children has a medical condition which required her to take an extensive amount of time off school to attend to medical appointments; and
  • submitted that terminating his employment or reducing his contracted hours would substantially and negatively affect his family and result in financial disadvantage.[22]
  1. [20]
    Attached to his response was a table setting out the dates and reasons he had variously taken leave between 2 February 2021 and 6 August 2021. On Mr Rooney's calculation, this equated to 73.5 hours carer's leave, 67 hours sick leave and 56 hours annual leave in that 6 month period.

The Decision

  1. [21]
    On 2 September 2021, the MSHHS provided Mr Rooney with a decision substantiating the allegation.[23] Mr Rooney appealed that decision resulting in the MSHHS withdrawing and reissuing the decision on 20 September 2021.
  2. [22]
    The decision the subject of this appeal, being the revised decision, relevantly provides:

Based on the information available to me, I consider the allegation is substantiated on the balance of probabilities.

Having considered the above response as well as your high level of absence from the workplace over several years, I have genuine concerns regarding your continued employment with Metro South Health (MSH). Whilst I am empathetic to your referenced personal circumstances in your response, I am unable to disregard the history and ongoing impacts your absence levels have on your team, your manager and the service that is provided in Logan Hospital's Antenatal Clinic.

Specifically, your absence levels have been addressed via this disciplinary process, your previous disciplinary process in 2020 and the ongoing absence management discussions that [the] Midwifery Unit Manager, Antenatal Services, Logan Hospital (LH), MSH has been having with you regularly since 2018.

I have also considered the reasonable adjustments and strategies that have been proposed to support you to improve your attendance. This has included but is not limited to: the commencement of a flexible working arrangement, the offer to temporarily decrease your hours of work and the implementation of three (3) absence management plans to keep you involved and informed regarding your absence levels.

To date, we have seen no sustained improvement in your absence levels and your responses have not provided me with any indication that your absence levels are likely to improve. Accordingly, I do not believe that it would be appropriate to continue the absence management process when you have not provided me with confidence that you are actively engaged in improving your attendance or working towards strategies that will decrease your absence from the workplace.

  1. [23]
    The decision-maker concluded the Decision by noting:

Grounds for discipline

Having considered the information available to me in respect of the allegation, including your response, I consider there are grounds to discipline you pursuant to the Public Service Act 2008 sections:

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

...

Proposed disciplinary action

Given the serious nature of the allegation consideration is being given to the disciplinary action of termination of your employment.

Grounds of Appeal

  1. [24]
    Mr Rooney appeals on the following grounds:[24]
  1. (a)
    the allegation is not capable of constituting a disciplinary ground within s 187(1)(a) of the PS Act;
  2. (b)
    the MSHHS failed to comply with Directive 15/20 Positive performance management ('Directive 15/20') and was therefore not permitted to discipline Mr Rooney for unsatisfactory performance;
  3. (c)
    Mr Rooney's absences were not managed in accordance with the AM Procedure;
  4. (d)
    the decision-maker failed to consider whether Mr Rooney's absences were caused by his fitness for work or family responsibilities; and
  5. (e)
    the decision-maker erred by relying on a previous disciplinary process to substantiate the allegation the subject of the present appeal.

Relevant Principles

  1. [25]
    The PS Act relevantly provides:

187 Grounds for discipline

  1. (1)
    A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. (b)
    been guilty of misconduct; or
  1. (c)
    been absent from duty without approved leave and without reasonable excuse; or

...

  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.

...

  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  1. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.

Example of misconduct—

victimising another public service employee in the course of the other employee's employment in the public service

...

  1. [26]
    Directive 14/20 Discipline ('Directive 14/20') relevantly provides:

8. Discipline process

8.1 Section 190 of the PS Act provides that in disciplining a public service employee or former public service employee, a chief executive must comply with the PS Act, this directive, and the principles of natural justice.

8.2 The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.

8.3 Show cause process for disciplinary finding

  1. (a)
    The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
  1. (b)
    Written details of each allegation in clause 8.3(a) must include:
  1. (i)
    the allegation
  1. (ii)
    the particulars of the facts considered by the chief executive for the allegation
  1. (iii)
    the disciplinary ground under section 187 of the PS Act that applies to the allegation.
  1. (c)
    A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
  1. (d)
    The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
  1. (e)
    If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

8.4 Decision on grounds (disciplinary finding)

  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance  probabilities.
  1. (b)
    The chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding.
  1. (c)
    For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
  1. (d)
    The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
  1. (e)
    If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.

If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

  1. [27]
    Directive 15/20 relevantly provides:

5. Positive performance management

5.1 Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles:

  1. (a)
    pro-actively managing the personal and professional development of public service employees with a view to continuously building expertise within the public service
  1. (b)
    ensuring regular and constructive communication between public service managers and employees in relation to the matters stated in section 26
  1. (c)
    recognising the strengths, requirements and circumstances of individual employees and valuing their contributions
  1. (d)
    recognising performance that meets or exceeds expectations
  1. (e)
    providing opportunities and support to employees for improving performance
  1. (f)
    continuously improving performance through the provision of training and development
  1. (g)
    identifying at the earliest possible stage performance that does not meet expectations
  1. (h)
    integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

5.2 Chief executives are required to integrate the positive performance management principles into their agency's management practices and policies.

5.3 Managers are required to incorporate the positive performance management principles into their management practices.

...

7. Decision to commence a structured process to manage unacceptable work performance in a supportive way

7.1 The process for managing unacceptable work performance must be supportive, directed to the positive performance management principles, and take into account factors (work and non-work related) that may be affecting the employee:

  1. (a)
    Non-work related issues that may be affecting an employee could include personal circumstances that may be impacting their work performance (for example, domestic violence, family caring responsibilities, or a medical condition)
  1. (b)
    Work-related issues that may be affecting an employee could include workload issues, workplace conflict or poor communication.

7.2 The chief executive may initiate a performance improvement plan (PIP) as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.

...

Is the allegation capable of constituting a disciplinary ground under s 187(1)(a)?

  1. [28]
    Mr Rooney notes the MSHHS does not allege his absenteeism constitutes disciplinary grounds under s 187(1)(c) of the PS Act, being absence from duty without approved leave and without reasonable excuse, or s 187(1)(b) of the PS Act, being misconduct for, by example, fraudulently misusing personal leave.[25] Both of these grounds, he submits, might conceivably be enlivened by acts or omissions related to absence from duty.[26]
  2. [29]
    Instead, Mr Rooney notes the decision-maker has determined Mr Rooney's absenteeism constitutes repeated unsatisfactory performance or serious under performance of his duties.[27] He argues the MSHHS has failed to rely on legislation, industrial instruments, directives or policies for the proposition that using more personal leave than what is accrued over a set period is capable of constituting unsatisfactory performance.[28]
  3. [30]
    Mr Rooney submits s 187(1)(a) of the PS Act contemplates acts or omissions done in the course of performing duties, as opposed to absence from duty.[29] This is so, he argues, because it refers to poor or under performance 'of the employee's duties' and lists, as examples, 'performing duties carelessly, incompetently or inefficiently'.[30] Consequently, he contends absence from duty on approved leave, even if excessive, is not capable of constituting a disciplinary ground under s 187(1)(a) of the PS Act.[31]
  4. [31]
    The MSHHS argues Mr Rooney's high absenteeism and failure to regularly attend his rostered shifts impacts his ability to perform the inherent requirements of his role.[32] Consequently, it argues this constitutes repeated unsatisfactory performance or serious underperformance of his duties.[33]
  5. [32]
    Mr Rooney's repeated and unpredictable absenteeism, it submits, has significant impacts on his colleagues, their morale and standards of patient care, particularly when a suitable backfill cannot be found.[34] In this respect, it notes Mr Rooney's acknowledgment of the negative impact his absenteeism has on the antenatal clinic.[35]

Consideration

  1. [33]
    Section 187(1)(a) of the PS Act provides that a public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing their duties carelessly, incompetently, or inefficiently.[36]
  2. [34]
    The Oxford English Dictionary defines 'inefficient' as '... failing to produce, or incapable of producing, the desired effect; ineffective', or in the alternative, 'not effecting or accomplishing something ...'.[37]
  3. [35]
    Mr Rooney is ordinarily required to attend the workplace for 64 hours each fortnight in order to fulfil the inherent requirements of his role. In my view, his ability to undertake or perform the requirements of his role and therefore perform his role in an efficient or effective manner, is directly impacted by his ability (or inability) to regularly attend his rostered shifts.
  4. [36]
    Mr Rooney has failed to regularly attend work to perform his rostered shifts since mid-2018. In this time, he has regularly exhausted his sick leave entitlements and accessed annual, and unpaid leave. Mr Rooney has openly acknowledged the challenges his absence levels have created within his team and for his manager.
  5. [37]
    I consider it was reasonable for the decision-maker to hold an expectation that Mr Rooney would reliably attend work to perform his duties.
  6. [38]
    As such, I consider it was open for the decision-maker to conclude Mr Rooney's repeated failure to perform the inherent requirements of his role, falls within the grounds for discipline set out at s 187(1)(a) of the PS Act.

Did the MSHHS fail to comply with the AM Procedure?

  1. [39]
    Although not stepped out in his submissions, Mr Rooney contends his absences were not managed in accordance with the AM Procedure.[38] In this respect he argues all three AMPs were defective in that they failed to contain 'specific actions and achievable outcomes', and record a date for review of results.[39]
  2. [40]
    The MSHHS submits the Queensland Health Human Resources Guideline for Absence Management ('the AM Guideline') recommends an expected attendance level of less than 10 sick leave days per year for full time employees (pro-rata for part time employees).[40] It explains this was used as a measurable benchmark for Mr Rooney's attendance.[41]
  3. [41]
    It submits it has repeatedly raised concerns with Mr Rooney regarding his absenteeism and its impact, including by clearly and consistently communicating an expectation that he proactively identifies strategies to balance his personal commitments with his work attendance.[42] However, it submits Mr Rooney has demonstrated little to no sustained improvement since 2018.[43]
  4. [42]
    It highlights Mr Rooney has not, prior to bringing his appeal, expressed concern about the reasonableness of the attendance targets identified by the MSHHS.[44] Moreover, that to raise these issues now is disingenuous, and if he genuinely held those concerns, Mr Rooney should have raised them when the AMPs were implemented or in his show cause responses.[45]
  5. [43]
    Finally, it contends each AMP must be read in conjunction with the supporting file note which established the expectations for that AMP and how the absenteeism would be reviewed.[46]
  6. [44]
    In reply submissions, Mr Rooney argues the relevant file notes should not be read with the AMPs, and, in any event, they do not remedy the defects of the AMPs.[47] In this respect he submits AMP3 does not refer to the relevant file note, nor does either document purport to be otherwise complementary.[48]

Consideration

  1. [45]
    In my view, the MSHHS's submissions are persuasive. There are several reasons for this.
  2. [46]
    Firstly, the key principles of the AM Guideline refer to the establishment of a workplace which encourages regular and consistent attendance at work and actively monitors and manages unscheduled absences from work. In this regard, there is an expectation that line managers manage absences fairly and proactively.[49]
  3. [47]
    In compliance with the obligation to adopt an informal approach to the management of absenteeism in the early stages of the procedure, Mr Rooney was afforded the opportunity to participate in many informal meetings and discussions about his absenteeism levels, having been provided with a copy of the AM Procedure and his attendance records. These discussions occurred over a period of at least one year.[50]
  4. [48]
    I am satisfied the obligation under the AM Guideline to maintain file notes in relation to these informal meetings was adhered to and Mr Rooney's supervisors clearly articulated their expectations in relation to his attendance levels on the occasions when the meetings were held. Moreover, I accept several inquiries were made by Mr Rooney's supervisors in relation to his personal circumstances with a view to identifying strategies to address the absenteeism issue.
  5. [49]
    Secondly, having determined the informal approach was not achieving the desired improvement in Mr Rooney's attendance levels for his rostered shifts, the process was escalated to Step 3 which contemplates a more formal approach, whereby a plan with specific actions and achievable outcomes is completed.[51]
  6. [50]
    In so far as Step 3 is concerned, I am satisfied the MSHHS complied with the requirements under the AM Guideline. For example, the accompanying file notes reveal expectations in respect of the various AMPs were communicated and discussions were held in relation to how follow-up meetings would occur. Moreover, the AMPs included measurable targets and objectives which were also clearly communicated to Mr Rooney.

Did the MSHHS fail to comply with Directive 15/20?

  1. [51]
    Mr Rooney contends the MSHHS cannot take disciplinary action against him for a matter relating to his performance until it has complied with Directive 15/20 in relation to that matter.[52] He submits it has failed to do so and was therefore not empowered to commence disciplinary action through the show cause process.[53]
  2. [52]
    In this respect, Mr Rooney argues the MSHHS failed to initiate a performance improvement plan ('PIP') and has not referred to or considered the positive performance management principles throughout the show cause process.[54] Likewise, he argues the absence management plans do not meet the requirements of cl 7.4 of Directive 15/20.[55] In this respect, Mr Rooney argues AMP3 does not provide reasonable outcomes and fails to clearly state the support to be offered to him, the frequency of feedback meetings, or the potential consequences of not meeting expectations, including the possibility of disciplinary action.[56]
  3. [53]
    The MSHHS rejects Mr Rooney's contentions his absenteeism was not managed in accordance with Directive 15/20, arguing the performance management principles were applied, and management action taken before the MSHHS considered taking disciplinary action.[57] In support of this contention, it submits:
  1. (a)
    the MSHHS attempted to informally resolve its concerns regarding Mr Rooney's absenteeism through regular meetings from July 2018;
  2. (b)
    the MSHHS attempted to formally address its concerns by implementing the three AMPs;
  3. (c)
    at the commencement of each AMP, Mr Rooney was advised of the concerns regarding his absenteeism, its impact and the expectation that he would identify strategies and any supports he would require to reduce his absenteeism; and
  4. (d)
    Mr Rooney was advised on multiple occasions that a disciplinary process may be commenced should his absenteeism not improve.[58]
  1. [54]
    In reply submissions, Mr Rooney argues that even if the relevant file notes were read with the AMPs, they still suffer from the defects outlined at [52] above. Further, he argues that despite the MSHHS's submissions, the documents do not evidence that Mr Rooney was advised at the commencement of AMP3 of concerns regarding his absenteeism, the impact on his workplace, or the expectation that he identify supports to balance his work and personal commitments.[59]

Consideration

  1. [55]
    Directive 15/20 promotes best practice human resource management, including through the application of the positive performance management principles set out in s 25A of the PS Act.[60]
  2. [56]
    Clause 7.1 of the directive provides that the process for managing unacceptable work performance must be supportive, directed to the positive performance management principles and consider factors (work and non-work related) that may be affecting the employee.
  3. [57]
    Clause 7.2 provides that a chief executive may initiate a PIP as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.
  4. [58]
    On my reading of Directive 15/20, there is no specific requirement for a chief executive to implement a PIP. Instead, the focus of cl 7.2 is directed towards the chief executive adopting a 'structured process' to address unacceptable work performance.
  5. [59]
    The AM Guideline relied on by the MSHHS to address concerns about Mr Rooney's attendance levels is specifically directed towards the management of absenteeism. The purpose of the MSHHS's AM Guideline is to provide a framework for the proactive, effective and fair management of unscheduled absences from work. The AM Procedure sets out five steps to address absenteeism issues, namely:
  • Step 1: Monitor absenteeism and identify problems;
  • Step 2: Informal approach;
  • Step 3: Formal approach;
  • Step 4: Formal warning; and
  • Step 5: Referral to Health Service Chief Executive.
  1. [60]
    Although the MSHHS did not adopt a PIP to address concerns around Mr Rooney's absenteeism, it elected to follow the 5-step AM Procedure within the AM Guideline. In my view, it was reasonable for the MSHHS to adopt and continue to follow the absence management process, notwithstanding the introduction of Directive 15/20 in September 2020.
  2. [61]
    In any event, having reviewed the records of discussions held during the informal stages of the process, the various AMPs (AMP1, AMP2 and AMP3) entered into by Mr Rooney and MSHHS and the accompanying file notes, I am satisfied the MSHHS has complied with the relevant process outlined within Directive 15/20 for managing employee performance, given its representatives:
  • held regular informal and formal meetings with Mr Rooney where concerns about his absenteeism and the need for improvement were comprehensively communicated;
  • made inquiries in respect of work or non-work factors that may have been affecting Mr Rooney and his ability to attend work;
  • took into account non-work factors that were raised by Mr Rooney at different stages during the management of his absenteeism;
  • provided Mr Rooney, in conjunction with his family, with an opportunity to identify strategies to address his absenteeism;
  • proposed strategies, such as flexible working arrangements and/or a reduction in hours, as mechanisms through which his absenteeism could be addressed;
  • identified measurable outcomes which Mr Rooney could work towards in each AMP;
  • communicated the impact Mr Rooney's absenteeism was having on the workplace;
  • advised Mr Rooney on several occasions that a disciplinary process may be commenced in the absence of any improvement; and
  • accommodated Mr Rooney's preference to have less structured discussions or catch-ups as part of the review process.

Did the decision-maker fail to consider what caused Mr Rooney's absences?

  1. [62]
    Mr Rooney submits he has five children and shares caring responsibilities for those children with his partner.[61] He explains that two of his children have experienced serious medical conditions.[62] Additionally, Mr Rooney has a medical condition and suffers from migraines.[63] Mr Rooney submits the MSHHS received medical evidence regarding his own condition on 6 April 2021, and that evidence has not been challenged by the MSHHS.[64]
  2. [63]
    As mentioned at [20] above, Mr Rooney submits he provided the MSHHS with an account of his reasons for taking leave between 2 February 2021 and 6 August 2021.[65] The reasons for his absence, he submits, substantially concern his fitness for work and caring responsibilities, which have not been challenged by the MSHHS.[66]
  3. [64]
    The MSHHS rejects the contention it failed to consider whether Mr Rooney's absences were caused by his fitness for work or caring responsibilities as inconsistent with the facts of the matter.[67] In this respect it submits it contacted, with his consent, Mr Rooney's treating doctor who confirmed his medical condition does not affect his ability to perform his duties.[68] Similarly, it submits it sought advice from Mr Rooney on strategies to support him to attend to his duties, and it is unclear what further supports could be implemented to assist him to achieve an acceptable level of attendance.[69]
  4. [65]
    In reply submissions, Mr Rooney argues the MSHHS's contentions imply the substantiation of the allegation was at least partly based on the MSHHS's belief he was absent for reasons other than being unfit for duty or attending family responsibilities.[70] He argues this implication is advanced when regard is had to the previous disciplinary process where it was determined that Mr Rooney's absence was 'largely outside [his] control'.[71]
  5. [66]
    Mr Rooney contends it was unreasonable for the MSHHS to form the view he was improperly taking leave without providing him an opportunity to respond to an allegation to that effect.[72] In this respect, he notes the AM Guideline provides only that a ground for reasonable management concern is leave in excess of accrual 'without justification.'[73]
  6. [67]
    Alternatively, he argues that if the MSHHS was of the view it could dismiss him for taking approved leave for genuine reasons outside his control, this should have been raised with him during any of the absence management processes.[74] However, such a position, he argues, is clearly unreasonable given the potential to coerce Mr Rooney into attending his workplace while unfit for duties.[75]

Consideration

  1. [68]
    Clause 8.4(b) of Directive 14/20 requires a chief executive to advise an employee of the chief executive's finding in relation to each allegation. For each finding, the chief executive (or their delegate) must clearly explain their findings of fact on the balance of probabilities, including the evidence relied on to reach the finding.
  2. [69]
    It is not in contention Mr Rooney failed to maintain an absenteeism level of 4% or below after completion of the three AMPs and one formal warning.
  3. [70]
    Clause 5.1.3 of the AM Guideline identifies examples of triggers that may warrant grounds for reasonable concern and action in response to absenteeism levels. The examples, although not exhaustive, extend to regular sick leave being taken in a pattern over time, recreation leave used in lieu of sick leave and accessing unpaid sick leave.
  4. [71]
    Having regard to the history and extent of Mr Rooney's absences from his rostered shifts, I consider it was open to the MSHHS and its representatives to instigate a formal management process aimed at improving his attendance to a satisfactory level.[76]
  5. [72]
    In her decision-letter, the decision-maker advised:

… your absence levels have been addressed via this disciplinary process, your previous disciplinary process in 2020 and the ongoing absence management discussions that [Mr Rooney's Midwife Unit Manager] … has been having with you.

I have also considered the reasonable adjustments in your absence levels and your responses have not provided me with any indication that your absence levels are likely to improve. Accordingly, I do not believe that it would be appropriate to continue the absence management process when you have not provided me with confidence that you are actively engaged in improving your attendance or working towards strategies that will decrease your absence from the workplace.

  1. [73]
    As identified earlier at [61], I accept the MSHHS took steps to:
  • make inquiries in respect of work or non-work factors that may have been affecting Mr Rooney;
  • consider non-work factors that were raised by Mr Rooney at different stages during the management of his absenteeism;
  • provide Mr Rooney, in conjunction with his family, with an opportunity to identify strategies to address his absenteeism; and
  • propose strategies, such as flexible working arrangements and/or a reduction in hours, as mechanisms through which his absenteeism could be addressed.
  1. [74]
    It is not in contention that in April 2021, the MSHHS wrote to Mr Rooney's treating medical practitioner to obtain advice in respect of his levels of absenteeism and capacity to work. In response, Mr Rooney's general practitioner confirmed Mr Rooney suffered from a diagnosed medical condition but that, prior to a seizure in March 2021, he had been seizure free for many years. Relevantly, the general practitioner advised Mr Rooney's medical condition did not affect his ability to perform the duties of his role.
  2. [75]
    It is clear the decision-maker sought and considered the advice of Mr Rooney's general practitioner when arriving at a decision about the allegation and confirming the disciplinary grounds.
  3. [76]
    Having reviewed the file notes of numerous meetings which took place from July 2018 until June 2021, I am also satisfied the MSHHS, in response to health issues raised by Mr Rooney, repeatedly afforded him the opportunity to consider other strategies that were available to assist in better managing his attendance levels.
  4. [77]
    Therefore, I am not persuaded the MSHHS has failed to consider whether Mr Rooney's absences were caused by his fitness for work or caring responsibilities.

Other Matters

  1. [78]
    As noted at [24] above, within his appeal grounds, Mr Rooney complained the decision-maker erred by relying on a previous disciplinary process to substantiate the allegation the subject of the present appeal. He did not, however, address this complaint within his submissions.
  2. [79]
    In any event, it is not in contention that, on 21 January 2021, having considered Mr Rooney's response in respect of the first show cause process, the decision-maker determined that an alternative approach would be taken in lieu of disciplinary action whereby a further AMP, amongst other processes, would be implemented.
  3. [80]
    I accept that although the MSHHS determined on that occasion local management action was more appropriate in the circumstances, the outcome would have left Mr Rooney in no doubt that his attendance required improvement.

Conclusion 

  1. [81]
    The issue for determination in this appeal was whether the decision appealed against was fair and reasonable in all the circumstances.[77]
  2. [82]
    In my view, it was open to the decision-maker to consider the nature and extent of Mr Rooney's absences, the impact they were having on the MSHHS's operations and his inability to achieve a sustained improvement in his attendance, when considering the allegation.
  3. [83]
    Mr Rooney's participation in numerous discussions and processes, both formal and informal, over a considerable period, in respect of his excessive levels of absenteeism, coupled with the adverse impact of the absences on his team members and work area and his failure to maintain an absenteeism level of 4% or below, in my view, entitled the MSHHS to substantiate the allegation.
  4. [84]
    For the reasons given above, I consider the Decision was fair and reasonable.

Order

  1. [85]
    I make the following order:

The decision appealed against is confirmed.

Footnotes

[1] Public Service Act 2008 (Qld) s 197.

[2] Industrial Relations Act 2016 (Qld) s 562B(2); Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

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

[4] Mr Rooney's submissions filed 29 September 2021, Attachment 6.

[5] Ibid.

[6] Ibid.

[7] Ibid Attachments 7 and 8.

[8] Ibid Attachment 8.

[9] Ibid Attachments 9 and 10.

[10] Ibid Attachment 11.

[11] Ibid Attachments 12 and 13.

[12] Ibid Attachment 11.

[13] Ibid Attachment 14.

[14] Ibid.

[15] Ibid Attachment 15.

[16] Ibid Attachment 16.

[17] Ibid Attachment 18.

[18] Ibid Attachments 19 and 20.

[19] Ibid Attachments 21 and 22.

[20] Ibid Attachment 1.

[21] Ibid Attachment 3.

[22] Ibid.

[23] Ibid Attachment 4.

[24] Appeal Notice filed 27 September 2021, Schedule 1.

[25] Mr Rooney's submissions filed 29 September 2021, [36].

[26] Ibid [37].

[27] Ibid [38].

[28] Ibid [40].

[29] Ibid [41].

[30] Ibid.

[31] Ibid [42].

[32] MSHHS's submissions dated 13 October 2021, [22].

[33] Ibid [22], [26].

[34] Ibid [23].

[35] Ibid.

[36] Public Service Act 2008 (Qld) s 187(1)(a).

[37] Oxford English Dictionary (online at 15 July 2022) 'inefficient'.

[38] Mr Rooney's submissions filed 29 September 2021, [55].

[39] Ibid, citing the Metro South Health Workforce Services Absence Management Procedure WS.E.P.R.1.9, 6.

[40] MSHHS's submissions dated 13 October 2021, [5].

[41] Ibid.

[42] Ibid [24].

[43] Ibid.

[44] Ibid [25].

[45] Ibid.

[46] Ibid [31].

[47] Mr Rooney's reply submissions dated 20 October 2021, [2].

[48] Ibid [5].

[49] Queensland Health Human Resources Guideline for Absence Management, 2.

[50] Mr Rooney's submissions filed 29 September 2021, Attachment 6.

[51] Queensland Health Human Resources Guideline for Absence Management, 7, 11.

[52] Mr Rooney's submissions filed 29 September 2021, [43]-[44], citing Public Service Act 2008 (Qld) s 186C; Directive 15/20 – Positive performance management cls 7.2, 7.4.

[53] Ibid [54].

[54] Ibid [48].

[55] Ibid [53].

[56] Ibid [50]-[52].

[57] MSHHS's submissions dated 13 October 2021, [30].

[58] Ibid [27]-[29].

[59] Mr Rooney's reply submissions dated 20 October 2021, [7].

[60] Directive 15/20 Positive performance management cl 1.1.

[61] Mr Rooney's submissions filed 29 September 2021, [26].

[62] Ibid [27]-[28].

[63] Ibid [29].

[64] Ibid [30]-[31].

[65] Ibid [32].

[66] Ibid [34].

[67] MSHHS's submissions dated 13 October 2021, [32].

[68] Ibid [33]-[34].

[69] Ibid [35]-[36].

[70] Mr Rooney's reply submissions dated 20 October 2021, [9].

[71] Ibid [10].

[72] Ibid [11].

[73] Ibid, citing Queensland Health Human Resources Guideline for Absence Management, 8-9.

[74] Ibid [12].

[75] Ibid.

[76] Queensland Health Human Resources Guideline for Absence Management, 19.

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

Close

Editorial Notes

  • Published Case Name:

    Rooney v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Rooney v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 267

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    15 Jul 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
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

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