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  4. Graham v State of Queensland (Queensland Health) - [2022] QIRC 277

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Graham v State of Queensland (Queensland Health)[2022] QIRC 277

Graham v State of Queensland (Queensland Health)[2022] QIRC 277

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Graham v State of Queensland (Queensland Health) [2022] QIRC 277

PARTIES: 

Graham, Dallas

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/96

PROCEEDING:

Public Service Appeal – Fair Treatment

DELIVERED ON:

25 July 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

Final submissions received 11 March 2022

ORDER:

The decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where one allegation substantiated – where allegation relates to claiming overtime for time not worked – whether decision fair and reasonable – whether substantiated allegation amounts to misconduct under s 187(1)(b) of the Public Service Act 2008 (Qld) – decision fair and reasonable

LEGISLATION AND INSTRUMENTS:

Directive 14/20 – Discipline cls 8.4, 14

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

Public Service Act 2008 (Qld) ss 187, 194, 197

CASES:

Briginshaw v Briginshaw (1938) 60 CLR 336

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

Reasons for Decision

  1. [1]
    Mr Dallas Graham is employed by the State of Queensland through Queensland Health within the Metro South Hospital and Health Service ('the Service'). He is employed as an Electrician with Building Engineering and Maintenance Services ('BEMS') at the Princess Alexandra Hospital ('the PAH'). Mr Graham has been employed by Queensland Health since 2006.
  2. [2]
    In a decision letter dated 4 January 2022, Ms Kay Toshach, Chief Infrastructure and Assets Officer, Metro South Hospital and Health Service, informed Mr Graham she had substantiated an allegation regarding Mr Graham claiming payment for time he did not work ('the Decision').
  3. [3]
    By appeal notice filed 25 January 2022, Mr Graham 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) ('the IR Act').[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] Findings which are reasonably open to the decision-maker should not be disturbed on appeal.
  4. [4]
    In my view, the Decision was fair and reasonable.
  5. [5]
    My reasons follow.

Background

  1. [6]
    In mid-2020, the Service became aware of potential concerns relating to BEMS employees, specifically electricians and trades assistants ('TAs') at the PAH, claiming payment for hours not worked on a planned overtime weekend shift.
  2. [7]
    Relevantly, it is common for BEMS employees within the Service to work planned overtime shifts on weekends to enable qualified employees to access and carry out work and testing in areas of the hospital not readily accessible during the week, such as operating theatres.
  3. [8]
    The Service received a report part-way through 2020 indicating that a BEMS employee had claimed payment for overtime for hours they had not in fact worked. Specifically, it was alleged the employee claimed overtime for the hours of 5.00 am to 1.30 pm, despite only working until 8.18 am.
  4. [9]
    Further enquiries undertaken by BEMS management in May and June 2020, raised concerns that the practice of improperly claiming overtime may have also been engaged in by other employees.
  5. [10]
    Consequently, the Service undertook an extensive data matching exercise which involved analysis of payroll data, swipe card access records and door security alarm records for all electricians employed at the PAH.
  6. [11]
    The audit primarily sought to identify potential discrepancies between the nominated hours which formed the basis for calculating overtime payments which employees were being paid, and available data which indicated whether they were present and working in the workplace for the duration of the period being recorded on Attendance Variation and Allowance Claim forms (AVACs) and Daily Staffing Variance Forms (DSVFs).
  7. [12]
    Additionally, a Workplace Consultant, Ms Angela Petie, was instructed to conduct an independent and external workplace review ('the review'). Where the Service identified a discrepancy between the time claimed, and the time the employee could be verified as remaining on site, the Ms Petie interviewed the relevant employee to obtain responses and any reasons for alleged discrepancies in the number of overtime hours claimed to have been worked.
  8. [13]
    During the interview process, Ms Petie took employees through a spreadsheet which contained identified 'Dates of Concern', where access card data and alarm data appeared to indicate work activity either commenced after the shift starting time or concluded before the nominated shift cessation time.
  9. [14]
    Employees who participated in the interviews were given access to the relevant Dates of Concern, AVACs, DSVFs, work orders and test sheets where available.
  10. [15]
    Ms Petie delivered her report to the Service in May 2021.
  11. [16]
    The review relevantly identified instances where employees had claimed overtime payment for time not worked.
  12. [17]
    Mr Graham was alleged to have been one of those employees.

Show Cause Process

  1. [18]
    On 26 July 2021, Mr Graham was invited to show cause why a disciplinary finding should not be made against him in relation to the following allegation:

Allegation one

It is alleged that you claimed payment for time that you did not work on the following dates:

  1. a.4 November 2017;
  2. b.2 December 2017;
  3. c.23 December 2017;
  4. d.10 February 2018;
  5. e.24 February 2018;
  6. f.12 May 2018;
  7. g.26 May 2018;
  8. h.9 June 2018;
  9. i.23 June 2018;
  10. j.30 June 2018;
  11. k.4 August 2018;
  12. l.11 August 2018;
  13. m.1 September 2018;
  14. n.8 September 2018;
  15. o.29 September 2018;
  16. p.13 October 2018;
  17. q.27 October 2018;
  18. r.3 November 2018;
  19. s.17 November 2018;
  20. t.24 November 2018;
  21. u.1 December 2018;
  22. v.9 February 2019;
  23. w.6 April 2019;
  24. x.27 April 2019;
  25. y.11 May 2019;
  26. z.26 May 2019;
  27. aa.15 June 2019;
  28. bb.22 Jun 2019;
  29. cc.13 July 2019;
  30. dd.20 July 2019;
  31. ee.27 July 2019;
  32. ff.3 August 2019;
  33. gg.24 August 2019;
  34. hh.31 August 2019;
  35. ii.7 September 2019;
  36. jj.14 September 2019;
  37. kk.28 September 2019;
  38. ll.5 October 2019;
  39. mm.12 October 2019;
  40. nn.19 October 2019;
  41. oo.2 November 2019;
  42. pp.16 November 2019;
  43. qq.30 November 2019;
  44. rr.22 December 2019;
  45. ss.28 December 2019;
  46. tt.29 December 2019;
  47. uu.29 February 2020;
  48. vv.4 April 2020;
  49. ww.9 May 2020.
  1. [19]
    These dates equate to 49 instances of alleged improper overtime claims over a two-and-a-half-year period.
  2. [20]
    Within the same correspondence, under the heading 'Particulars', was a table which set out the date of each alleged incident, the times for payment claimed for that incident, details of the last recorded swipe card access or alarm data and the sections of the investigation report relevant to that incident. The table also included the following notes:

Note 1: For the purpose of this letter [the show cause notice], we have relied upon your access card data and alarm data, as well as that of your work partner (if you had a work partner for the particular date). For shifts where you were working with your work partner and your work partner has used their swipe card and you have not, we have given you the benefit of the doubt and assumed that you entered locations with your work partner and were therefore still performing work. By way of example only, if your last swipe card activity registered at 11.00 am but your work partner registered activity at 1.00 pm, we have assumed that you have been moving around PAH with your work partner and ceased performing work at 1.00 pm.

Note 2: Where the access card data and alarm data show no further activity for you or your work partner, we have assumed that you have ceased performing work at the time of the last card activity or if later, when the Electricians' workshop door has been armed.

These notes apply to all dates in Allegation one.

  1. [21]
    Attached to the correspondence was the following documentation:
  1. (a)
    Ms Petie's investigation report;
  2. (b)
    AVACs and DSVFs relevant to the dates comprising Allegation one;
  3. (c)
    CCTV footage stills; and
  4. (d)
    relevant excerpts of the:
  1. (i)
    PS Act;
  2. (ii)
    Code of Conduct for the Queensland Public Service;
  3. (iii)
    Queensland Health Human Resources Policy E10 – Discipline; and
  4. (iv)
    Public Service Commission Directive 14/20 – Discipline ('the Directive').

Mr Graham's Response

  1. [22]
    Mr Graham responded to the show cause notice on 25 August 2021. In his response, he:
  • submitted he was taking the allegation seriously, and noted his integrity and honesty have not been called into question since commencing work with Queensland Health in 2006;
  • acknowledged but rejected the Service's position that the lack of swipe card access records after a certain time indicated Mr Graham had ceased work on that occasion;
  • accepted he had occasionally left work at 1.00 pm in lieu of taking a lunch break, or left at 1.15 pm just short of his finishing time but maintained he was confident he had never left the workplace earlier than 1.00 pm;
  • noted it was unlikely the work undertaken on the weekend shifts could have been completed prior to the time he is alleged to have ceased work;
  • disagreed it was impossible to access certain areas without a swipe card, noting there was a time swipe cards were not necessary and otherwise it was possible to enter with another employee or if the door had been propped open by another staff member conducting work in the area;
  • encouraged the Service to access CCTV footage if available as evidence;
  • maintained he and Mr Trung Le would use any additional time after concluding their work to complete paperwork, organise ongoing weekend overtime and review the Australian Standards together as a form of training, which was how Mr Graham had been trained;
  • noted he was a smoker so he would do this work in the pergola outside the workshop so he could smoke;
  • accepted, on reflection, that he ought to have raised the issue of leftover overtime hours with his supervisor instead of engaging in informal training, but maintained that he genuinely considered this to be a good use of time;
  • noted he was a more experienced tradesperson that Mr Le, and a Union delegate, and saw the time as an opportunity to pass on his knowledge to Mr Le;
  • apologised and gave an undertaking to be more transparent about his activities during worktime in future;
  • denied he would ever encourage Mr Le to leave early and not report it as he considered this to be dishonest, and he would not have encouraged him to risk his livelihood;
  • maintained that if he had witnessed Mr Le leave early he would have advised him to amend his AVAC;
  • adamantly rejected the evidence of Mr Steven Carter who maintained Mr Graham had left early on occasion, submitting that on the few times they had worked together Mr Graham had not left early and he was unsure why Mr Carter would say he had;
  • highlighted the investigation report makes no findings against him;
  • argued there was no evidence that the evidence provided by him was untrue;
  • noted that as the primary income earner for his family, the proposed action of termination of his employment would have serious financial hardship consequences for him, and highlighted the stress would also likely affect his mental health; and
  • noted he was keen to put the allegation behind him and return to a job he is passionate and committed to.

The Decision

  1. [23]
    In respect of the 44 shifts Mr Graham worked with Mr Le,[4] the decision-maker:
  • noted Mr Graham relied solely on generic statements he had used additional overtime to complete paperwork and review standards, and had failed to produce any evidence contradicting the allegation;
  • considered Mr Graham's evidence was inconsistent with the evidence of other employees who indicated testing paperwork was completed at the time of testing, and there was no need to complete other paperwork at the end of a weekend shift;
  • determined it was more likely than not that Mr Graham had ceased work for the day rather than completed paperwork outside after the workshop had been armed;
  • considered Mr Graham's evidence to be unreliable because he gave inconsistent statements regarding whether he ever left early in lieu of taking a lunch break, and whether it was possible to access cardiac theatres without a swipe pass;
  • accepted that Mr Graham may have, on occasion, accessed secure areas without swiping his access card by following another employee into the area, but did not accept that of the 43 occasions he worked with Mr Le where there was no further swipe card activity and the workshop alarm had been armed, he had continued performing work after this time;
  • questioned the need to review the Australian Standards while being paid overtime when those standards have not changed since 2018 and are referred to during the week;
  • did not accept it was common practice to review the Australian Standards on a weekend shift because Mr Graham's supervisor was not aware of the practice;
  • noted the supervisor gave evidence that the purpose of weekend overtime was to allow for access to areas not accessible during the week, not to discuss compliance;
  • stated it was 'extremely difficult to accept' that Mr Graham and Mr Le would spend up to three hours on an overtime shift talking about the work they had done, what they needed to do next time and whether they needed to follow up anything during the week;
  • noted that Mr Graham's explanation regarding the most recent incident left one hour unaccounted for, and, in any event, CCTV footage had photographed a car matching the description of Mr Graham's car leaving the hospital premises approximately two minutes after the workshop had been armed, which was two hours earlier than his rostered finish time; and
  • noted Mr Graham did not provide contrary evidence or dispute that he had claimed payment for the hours detailed on the AVAC or DSVF for these shifts, notwithstanding the allegation that he had not in fact worked those hours.
  1. [24]
    In respect of the five shifts Mr Graham worked by himself,[5] the decision-maker:
  • noted Mr Graham's explanation for the unaccounted time on each of these shifts was that he either could not recall what he was doing, or that he would have sat outside the armed workshop finishing paperwork or going over the Australian Standards;
  • did not accept that on each of these occasions Mr Graham had sat outside and reviewed his work and again noted reviewing standards or compliance is not an acceptable use of overtime; and
  • noted Mr Graham had not produced any evidence that he had not claimed or been paid for the hours detailed on the AVAC or DSVF for those shifts.
  1. [25]
    In respect of the one shift Mr Graham worked with Mr Carter,[6] the decision-maker:
  • noted Mr Graham had stated he had worked with Mr Carter, but that they had undertaken different work;
  • noted that Mr Graham had stated he used the 70 minutes of his shift after the workshop had been armed to take his lunch break and go over what he had done for the day, however, Mr Carter had given evidence it was likely he and Mr Graham had both left when the workshop was armed;
  • considered Mr Carter's evidence was more reliable because he had given consistent evidence throughout the investigation process and his evidence was supported by the swipe card data, whereas Mr Graham had given contradictory statements as detailed above; and
  • noted Mr Graham had not produced any evidence that he had not claimed overtime payments for the hours detailed on the AVAC or DSVF for the shift.

Substantiation of the Allegation

  1. [26]
    For each of the dates detailed in Allegation one the decision-maker found that, on the balance of probabilities, the allegation had been substantiated, finding as follows:

…

There are 50 [sic – 49] occasions whereby you have claimed and received payment for hours worked, where you have failed to provide evidence to support you worked for the duration of your shifts.

You have failed to provide any evidence, not even for the most recent dates from 2020, to contradict this allegation or to demonstrate that you remained on site past the time that either all swipe activity ceased or the Electrician's Workshop alarm was armed for the day, on each of the occasions subject to the allegation. Rather you have only provided generic explanations which, for the reasons outlined above, I do not accept. You have made a number of inconsistent and contradictory statements throughout this process, which cause me to question the reliability of your responses.

Furthermore, Bruce Allanson, Steven Carter, Michael Martine, Dane Winders and Simon Walker all confirmed to Ms Petie that if the Electrician's Workshop alarm is armed, work has ceased for the day. These statements are consistent with the swipe and alarm data.

  1. [27]
    The decision-maker concluded the Decision as follows:

I have carefully considered all the material before me, including your response, the data, and information gathered by the investigator and ... for the reasons outlined above, I have determined that Allegation one (a) to (ww) is substantiated on the balance of probabilities.

On the basis of my finding in relation to Allegation one, I have determined that pursuant to section 187(1)(b) you are guilty of misconduct, that is inappropriate or importer conduct in an official capacity within the meaning of section 187(4)(a).

...

Proposed disciplinary action

In relation to the taking of a disciplinary action, I am currently giving serious consideration to the disciplinary action of termination of employment.

In accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had the opportunity to respond.

Grounds of Appeal

  1. [28]
    Mr Graham appeals on the basis the decision-maker misapplied the Briginshaw test by:
  1. (a)
    substantiating the allegation on the basis that it was 'more likely than not' to have occurred, as opposed to being reasonably satisfied having regard to the nature of the allegation, the likelihood of its occurrence and the gravity of the consequences;
  1. (b)
    relying on the absence of swipe card access records and the time the workshop alarm was armed, as opposed to CCTV footage;
  2. (c)
    expecting Mr Graham to recall each of the historical incidents, and then claiming minor inconsistencies affect his credibility; and
  3. (d)
    relying on evidence given by a supervisor that he was unaware of certain training activities as proof those activities did not occur.[7]

Relevant Principles

  1. [29]
    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. (b)
    been guilty of misconduct; ...

...

  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

What Decisions can an Industrial Commissioner make?

  1. [30]
    In deciding this appeal, s 562C(1) of the IR Act provides that I may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  2. (c)
    set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

'More Likely Than Not' to Have Occurred, as Opposed to Reasonable Satisfaction

Mr Graham's Submissions

  1. [31]
    Mr Graham submits that in all the time he has worked for the Service, he has not been the subject of disciplinary issues or had his honesty or integrity called into question.[8] Further, he submits he is a workplace delegate and leader and understands the importance of complying with the Service's policies, procedures and general expectations.[9]
  2. [32]
    He accepts that, to do his role properly, it would ordinarily take a full 8-hour shift and submits, for the most part, the work did occupy an entire shift.[10] However, where he completed work early, he submits there was a reasonable expectation that he remain at work until his rostered finish time, because the AVAC would have already been provided to payroll for that shift.[11]
  3. [33]
    With respect to the most recent incident, Mr Graham denies a photograph produced during the investigation is a photo of his vehicle, submitting the depicted car is a common white vehicle that does not bear distinguishing marks or a registration plate.[12] Further, as the incident was so historical, Mr Graham submits he is unable to recall specifics other than to say he never left work as early as 11.30 am as alleged.[13]
  4. [34]
    With respect to the shift worked with Mr Carter, Mr Graham submits the decision-maker has made her decision based only on Mr Carter's evidence it was 'likely' both men ceased work early.[14] He argues this is hardly compelling evidence and does not meet the requisite standard of proof having regard to the Briginshaw test.[15] Mr Graham argues that he has been found 'guilty by association' because other employees have admitted to leaving work early.[16]
  5. [35]
    Finally, Mr Graham rejects the finding that it was more likely than not he simply ceased work and left for the day after arming the workshop.[17] He argues he resides at the Gold Coast, which is a considerable commute, and it would have been foolish for him to leave in circumstances where he might be called upon for further work because hospital staff were aware there was an electrician on site.[18] Consequently, he submits there was no evidence he left site prior to his rostered finish and it was far more likely he remained on site and attended to other matters until his rostered finish.[19]

The Service's Submissions

  1. [36]
    The Service contends it was reasonable for the decision-maker to find the allegation substantiated and consequently make a disciplinary finding having regard to the circumstances and material available.[20]
  2. [37]
    It acknowledges the matter is complex and submits its seriousness and complexity were key considerations when undertaking fact-finding and the overall management of the matter.[21] It submits a thorough and rigorous analysis was undertaken of payroll data, access card data and alarm records for the BEMS workshop which showed when the workshop was armed or disarmed.[22]
  3. [38]
    This information was, it submits, carefully considered by the decision-maker alongside the evidence given by other BEMS employees and Mr Graham.[23] However, the Service argues this information does not support Mr Graham's claims that for each relevant incident he worked his entire shift.[24]
  4. [39]
    The Service contends a number of other BEMS employees admitted to having claimed overtime for time not worked, and those employees had also witnessed and were aware of Mr Graham doing the same.[25] Further, it submits the accounts of those employees was consistent and supported by the alarm and swipe card data.[26]

Consideration

  1. [40]
    I am unable to accept Mr Graham's submissions for several reasons.
  2. [41]
    Clause 8.4 of the Directive requires a chief executive, or their delegate, to review all relevant material, including any submissions from the employee and make a decision on the disciplinary findings, on the balance of probabilities.
  3. [42]
    Clause 14 of the Directive defines the balance of probabilities in the following way:

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.
  1. [43]
    In the case of Briginshaw v Briginshaw,[27] Dixon J considered the balance of probabilities as a standard of proof:

The truth is that, when the law requires the proof of any fact, the tribunal must feel an actual persuasion of its occurrence or existence before it can be found. It cannot be found as a result of a mere mechanical comparison of probabilities independently of any belief in its reality. No doubt an opinion that a state of facts exists may be held according to indefinite gradations of certainty; and this has led to attempts to define exactly the certainty required by the law for various purposes. Fortunately, however, at common law no third standard of persuasion was definitely developed. Except upon criminal issues to be proved by the prosecution, it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences. Everyone must feel that, when, for instance, the issue is on which of two dates an admitted occurrence took place, a satisfactory conclusion may be reached on materials of a kind that would not satisfy any sound and prudent judgment if the question was whether some act had been done involving grave moral delinquency.[28]

  1. [44]
    In the Decision, the decision-maker, drawing on statements and relevant information sourced from both the review undertaken by Ms Petie and the show cause process, provides a detailed explanation as to why she is unable to accept the account offered by Mr Graham.
  2. [45]
    The decision letter provides examples of the contradictory, and, at times, unreliable nature of Mr Graham's responses obtained during the investigation and show cause process and sets out reasons as to why she prefers the evidence of Mr Carter, namely:

... Trung stated there was no need to complete paperwork/computer work at the end of a weekend overtime shift, or if there was, this would be done inside the workshop, which contradicts what you have claimed. This statement also supports the information provided by Simon Walker, Dane Winders, Trung and yourself, that the test sheets, whether paper or electronic, are completed at the time of testing in the hospital. Therefore, I do not accept that you completed 'necessary paperwork' outside once the Electrician's Workshop alarm had been armed.

Further, if you were completing testing documentation either in paper form or on the laptop, there would still be a need to enter the workshop to either return the test sheets or laptop and then arm the alarm for the final time prior to leaving site. This is further supported by Trung who stated that he would return to the Workshop to return the tester, which is used for Cardiac testing, and the laptop, and that typically he or his partner [you] would arm the Workshop at the conclusion of the shift. Therefore, I do not accept your generic explanation that you remained on site, outside the Workshop, once the Electrician's Workshop alarm had been armed, but rather believe it is more likely than not that you had ceased work for the day and left site.

In your response you stated 'there may have been the odd occasion where I left at 1pm in lieu of taking a lunch break or 1.15pm just shy of my finishing time', yet you advised Ms Angela Petie, Workplace Consultant, that you always took your lunch break and would never leave early on account of not having a lunch break. You have provided contradicting statements, which suggests your evidence is unreliable.

In your response you stated you don't agree it is impossible to access the cardiac theatre without a swipe card. I accept there may be the occasional time when another staff member may enter a door at the same time as yourself, and therefore there is no record of your swipe. However, I cannot accept, that of the 43 occasions that you worked with Trung, where there is no further swipe activity and the Electrician's Workshop alarm has been armed, that you continued to perform work and move around building one (main hospital building) without any further swipe activity. Further, in your interview with Ms Petie, you confirmed swipe card access was necessary in the theatre/cardiac areas. Again, you have provided contradicting statements, which suggest your evidence is unreliable.

As you are aware, not all cardiac test work is completed in the operating theatres, therefore there is a requirement for you to move around other areas of building one to complete this work. Further on a weekend, more doors are closed/secured, therefore you would need to swipe more often to enter those areas than you would if you were working on a weekday. Yet there is no evidence of either yourself or your partner Trung, swiping anywhere on campus after the Electrician's Workshop alarm has been armed.[29]

  1. [46]
    The conclusions reached by the decision-maker are entirely reasonable when regard is had to the review process undertaken by Ms Petie. While I do not intend on canvassing the entirety of the material contained in the investigation report in these reasons, it is clear the investigation was comprehensive and methodical.
  2. [47]
    Thirteen BEMS employees, including Mr Graham and Mr Le, were interviewed in connection with the investigation.
  3. [48]
    During the interviews, employees were asked to respond to questions about the nature of overtime performed on weekends, the manner in which that overtime was performed and recorded, start and finish times, the timing of lunch breaks during a weekend overtime shift, the timing of the completion of AVACs and DSVFs, expectations of supervisors in respect of the performance of overtime on weekends, the practice of using of swipe cards to access theatres over the weekends and the processes utilised in disarming and arming the electrical workshop on weekends.
  4. [49]
    The investigation report contained a thorough analysis of the individual responses provided by employees, including the responses provided by Mr Graham.
  5. [50]
    I am satisfied the decision-maker arrived at her conclusions having had close regard to those materials. Moreover, I am satisfied the requisite standard of proof has been met when determining the allegation is substantiated.
  6. [51]
    On the evidence, I consider it was reasonable for the decision-maker to conclude, for the reasons set out in her decision letter, that Mr Graham and Mr Le were not completing paperwork outside the workshop once the workshop alarm had been re-armed and any swipe activity had ceased for the day, as claimed by Mr Graham.
  7. [52]
    Within his submissions, Mr Graham also relies on his unblemished record and leadership role within BEMS in support of his appeal.[30] That he may not have been the subject of disciplinary issues or had his honesty or integrity called into question in the past, or the fact he is a workplace delegate and maintains he understands the importance of complying with the Service's policies and procedures, does not in itself mean the Decision is unfair or unreasonable.

Swipe Card Access Records and Armed Workshop Alarm

Mr Graham's Submissions

  1. [53]
    Mr Graham contends the decision-maker makes too much of his assertion he did not always need to use his swipe card to access secure areas by finding that she could not accept this was the case for all 43 occasions relevant to the allegation.[31] He argues the decision-maker ought to have taken into account the three-year span of the allegation, and submits 43 occasions over that period is not remarkable.[32]
  2. [54]
    Further, he argues arming the workshop alarm was not always his final act on his shift, reiterating that he would sit outside completing paperwork.[33] He notes that during the earlier shifts in the allegation he did not have access to a computer, and he would often take the paperwork home with him and return it on the Monday.[34]
  3. [55]
    Finally, he submits it is a shame CCTV footage was not produced because it would have confirmed that Mr Graham would sit in the pergola area and perform other work until his cessation time.[35]

The Service's Submissions

  1. [56]
    The Service submits that three BEMS employees, and two other supervisors, confirmed during the investigation that once the workshop was armed, and there was no further swipe card activity, this meant work had been completed for the day.[36] This is also, it submits, consistent with the understanding of BEMS management.[37] Consequently, the Service argues it was reasonable for the decision-maker to prefer the evidence of those employees over Mr Graham's evidence that the workshop alarm and swipe card data were not an indicator he had ceased work for the day.[38]

Consideration

  1. [57]
    For the reasons set out at [46] to [52] above, I consider it was open to the decision-maker to conclude that once the workshop was armed and there was no further swipe card activity, that work had been completed for the day. Moreover, I am satisfied the findings she arrived at within the Decision, when determining Mr Graham had claimed payment for time which he did not work, were fair and reasonable.

Inability to Recall Historical Incidents Affecting Credibility

Mr Graham's Submissions

  1. [58]
    Mr Graham contends the adverse inference drawn from the lack of contradictory evidence is unfair as the allegations are numerous and historical, with some incidents having occurred more than four years ago.[39] He argues it is unrealistic to expect him to provide evidence he was at work at a particular time that long ago, and it makes sense his responses would be generic because he denies engaging in the alleged conduct at all.[40]

The Service's Submissions

  1. [59]
    The Service did not directly address Mr Graham's submissions regarding the historicity of the incidents and his ability (or otherwise) to recall specific occasions. It did, however, acknowledge that the matter is complex and, noted that although only one allegation was raised, the allegation relates to repeated incidents spanning an extended period of time.[41]

Consideration

  1. [60]
    Although the period over which the events which form the basis of the allegation against Mr Graham encompasses 4 November 2017 until 9 May 2020, the allegation itself concerns just one issue, which involved Mr Graham repeatedly claiming payment for a planned weekend overtime shift that was not always worked in accordance with the times he recorded on the relevant AVACs and DSVFs.
  2. [61]
    While it would have been preferable, for all involved, for the allegation to be addressed at a much earlier stage, it was not until May 2020 that concerns about the recording of overtime were formally raised with BEMS supervisors. A short time later, an analysis was undertaken of payroll data, swipe card access records and door security alarm records for electricians and TAs.
  3. [62]
    When determining Mr Graham's hours of work, the activity undertaken while at work and the payment he received for the dates on which overtime shifts were worked for the relevant period, the Service relied on access card records, alarm records for the BEMS electrician's workshop, payroll records, AVACs and DSVFs, work orders and test sheets.
  4. [63]
    Relevantly, where access card data and electrical workshop alarm data was consistent with the shift start and finish times recorded on the AVACs and DSVFs, no issue was raised by the Service in respect of that particular shift.
  5. [64]
    It is not in contention that a list of Dates of Concern and copies of the AVACs and DSVFs were provided to Mr Graham ahead of his interview with Ms Petie. Mr Graham was also provided with an opportunity to comment on the discrepancies between the recorded shift times and the work activity.
  6. [65]
    Mr Graham now claims, in this appeal, that it is unfair to expect him to provide evidence that he was at work given the historical nature of some of the overtime shifts. However, his explanation in response to questions from Ms Petie about what he was doing, or where he was when the electrical workshop alarm was armed and swipe card activity had ceased on his rostered overtime shifts, for the Dates of Concern, was relatively unambiguous at the time the investigation was conducted.
  7. [66]
    As an explanation for the lack of swipe card or workshop alarm activity on the days he was rostered, Mr Graham observed he and Mr Le would sit outside the workshop and conduct an 'assessment of what we did of the task at hand, referring to different [Australian] Standards, … asking questions'.[42] When he was working on his own, Mr Graham maintained he would complete paperwork outside in a pergola close to the workshop, while smoking.
  8. [67]
    The difficulty with the position Mr Graham has taken is that evidence obtained during the review from other electricians who undertook weekend overtime shifts and BEMS supervisors does not support his explanation.
  9. [68]
    Firstly, all Queensland Health facilities have been smoke-free since 1 January 2015, with employees not permitted to smoke within five metres of the hospital campus boundary.
  10. [69]
    Secondly, Mr Le and several other employees gave evidence there was no need to complete paperwork or undertake computer work at the cessation of a weekend overtime shift. Moreover, the preponderance of evidence supports a conclusion that any paperwork associated with testing would have been completed at the time testing was undertaken within the hospital.
  11. [70]
    Thirdly, even if it was the case that work was undertaken by Mr Graham on a laptop or by completing test sheets, which in any event was not the normal practice, it would have been necessary for those items to be returned to the workshop at the conclusion of the shift, which in turn would have resulted in the workshop alarm being triggered. As I understand, the review revealed no evidence of this occurring on the nominated Dates of Concern.
  12. [71]
    Fourthly, the evidence obtained during the review does not support a conclusion it was common practice for employees to discuss the Australian Standards at the cessation of an overtime shift. Instead, the primary focus of the planned overtime shift was to facilitate access for electricians into areas of the hospital that were ordinarily inaccessible during the week to allow for testing and repairs.
  13. [72]
    Mr Graham was given an opportunity to provide the Service with an explanation for the alleged discrepancies between his recorded overtime hours and the occasions where swipe card activity and alarm records revealed work had ceased for the day.
  14. [73]
    During the investigation, Mr Graham's response as to what he was doing once the swipe activity ceased and the electrical workshop was armed, included that he was sitting outside smoking, discussing Australian Standards and, when not partnered with Mr Le, completing paperwork on his own.
  15. [74]
    In the end, having considered the investigation report and the show cause responses, the decision-maker has determined the explanation is implausible.
  16. [75]
    In my view, it was open to the decision‑maker to question the reliability of those responses and substantiate the allegation.

Relying on the Evidence of Others with Respect to Alleged Training

Mr Graham's Submissions

  1. [76]
    Mr Graham rejects evidence given by Mr Le that no paperwork was required at the end of the shift, submitting instead the time was spent outside the workshop completing testing documentation and informally training Mr Le.[43] Mr Graham submits this was how he was trained and he considered it a good use of time given he was already being paid per the pre-submitted AVAC.[44]
  2. [77]
    Mr Graham admits he would also attend to other business and accepts this may not have been the most productive use of his time.[45] However, he submits he felt he was expected to remain on site until his rostered finish time, and he was never advised to cease work early and amend the AVAC.[46]
  3. [78]
    Further, Mr Graham argues his commencement time ought to be taken into account in factoring in when he was alleged to have worked, noting his supervisor gave evidence he did not mind when the work happened, as long as it happened.[47] He submits he regularly attends work up to an hour prior to his rostered commencement time, which is as early as 4.00 am on a Saturday shift, and the workshop alarms would reflect this.[48]

The Service's Submissions

  1. [79]
    The Service submits that its position and the evidence of other BEMS employees reflect that the purpose of weekend overtime work was to complete specific tasks in areas not accessible during the week.[49] It argues that Mr Graham's account of his activities is implausible and not supported by the evidence available.[50] Further, it submits no evidence has been produced to support the claim that any training did in fact take place, or that it was even required.[51]

Consideration

  1. [80]
    In the Decision, the decision-maker gives specific reasons as to why she does not accept that discussing Australian Standards on weekend overtime shifts was not common practice, noting:

You advised Ms Petie during your interview that the Australian Standard (AS 3003) has not changed since 2018. You also advised Ms Petie that you refer to the standards during the week. I therefore question the need to discuss standards that have not changed since 2018 on the weekend, while being remunerated at overtime rates. I further note Ms Petie asked you the same question to which you responded, 'it's a common, common practice'.

I do not accept that it was common practice to discuss the standards on the weekend. If it was common practice, as you claim, your manager Simon Walker would be well aware of this practice. Considering Simon was not aware, and further stated that weekend overtime was to allow for access to areas not accessible during the week, not to discuss compliance, I do not accept that it was common practice.

Further you advised Ms Petie that you and Trung talk about what you have done, what you need to do next time and whether you need to follow up anything on Monday. Again, I find it extremely difficult to accept that this exercise would take up to three hours on an overtime shift.[52]

  1. [81]
    The decision-maker's reasoning on this issue, which in part led to the substantiation of the allegation against Mr Graham, is fair and reasonable when regard is had to the full context of the review and the responses provided by employees, including Mr Graham, during the investigation.

Conclusion

  1. [82]
    Pursuant to s 194(1)(eb) of the PS Act, an appeal may be made against a decision a public service employee believes is unfair and unreasonable.
  2. [83]
    Mr Graham maintains the Decision by the decision-maker to substantiate the allegation is unfair and unreasonable.
  3. [84]
    However, having regard to the wealth of evidence before the decision-maker, including the evidence given by Mr Graham during the review, I consider the findings made by her were reasonably open to be made. Further, I consider the decision-maker has provided detailed reasons for arriving at each of her conclusions, and I am not persuaded Mr Graham has identified any misapplication of the Briginshaw test within those reasons.
  4. [85]
    For the reasons given above, I have determined the Decision was fair and reasonable.

Order

  1. [86]
    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] See the dates numbered a-v, x, z-cc, ee-qq, tt, uu, ww, xx at [18] above.

[5] See the dates numbered w, y, dd, rr and ss at [18] above.

[6] See the date numbered vv at [18] above.

[7] Appeal notice filed 25 January 2022, Part C; referring to the test established in Briginshaw v Briginshaw (1938) 60 CLR 336 ('Briginshaw').

[8] Mr Graham's submissions filed 21 February 2022, [2].

[9] Ibid [3].

[10] Ibid [9]-[10], [13].

[11] Ibid [11].

[12] Ibid [20].

[13] Ibid.

[14] Ibid [24].

[15] Ibid.

[16] Ibid [29].

[17] Ibid [18].

[18] Ibid.

[19] Ibid [18], [30].

[20] The Service's submissions filed 11 March 2022, [28].

[21] Ibid [31].

[22] Ibid [32].

[23] Ibid [33].

[24] Ibid [34].

[25] Ibid [35], citing Angela Petie, Investigation Report (4 May 2021), 25-30.

[26] Ibid [36].

[27] Briginshaw (n 7).

[28] Ibid 361-362 (my emphasis).

[29] Decision letter dated 4 January 2022, 4-5.

[30] Mr Graham's submissions filed 21 February 2022, [2].

[31] Ibid [21].

[32] Ibid [22].

[33] Ibid [23].

[34] Ibid.

[35] Ibid [30].

[36] The Service's submissions filed 11 March 2022, [37].

[37] Ibid.

[38] Ibid [38]-[40].

[39] Mr Graham's submissions filed 21 February 2022, [14].

[40] Ibid.

[41] The Service's submissions filed 11 March 2022, [29].

[42] Angela Petie, Investigation Report (4 May 2021), 33.

[43] Mr Graham's submissions filed 21 February 2022, [15]-[16].

[44] Ibid [16].

[45] Ibid [17].

[46] Ibid.

[47] Ibid [25], [27].

[48] Ibid [26], [28].

[49] The Service's submissions filed 11 March 2022, [41].

[50] Ibid [42].

[51] Ibid.

[52] Decision letter dated 4 January 2022, 5.

Close

Editorial Notes

  • Published Case Name:

    Graham v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Graham v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 277

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    25 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
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
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.

1

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