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  4. Alderding v State of Queensland (Queensland Health) (No 2) - [2022] QIRC 315

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Alderding v State of Queensland (Queensland Health) (No 2)[2022] QIRC 315

Alderding v State of Queensland (Queensland Health) (No 2)[2022] QIRC 315

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Alderding v State of Queensland (Queensland Health) (No 2) [2022] QIRC 315

PARTIES:

Alderding, Pauline

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2021/432

PROCEEDING:

Public Service Appeal – Disciplinary Decision

DELIVERED ON:

12 August 2022

MEMBER:

Knight IC

HEARD AT:

On the papers

ORDERS:

1. The appellant's conduct in relation to Allegation One does not meet the definition of 'misconduct' in ss 187(1)(b) and 187(4)(a) of the Public Service Act 2008 (Qld).

2. The decision appealed against is returned to the decision-maker with a copy of these reasons.

3. The decision-maker is directed to reissue the decision on disciplinary findings and proposed disciplinary action containing only the substantiated allegation I have found to be fair and reasonable, namely Allegation One.

4. The decision-maker is further directed to specify the following in the reissued decision:

(a) the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant contravened in respect of Allegation One;

(b) the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of Allegation One; and

(c) the decision-maker's reasons for determining the appellant contravened each of the specified standards and sections.

5. The decision-maker reissue their decision within 21 days of these reasons.

CATCHWORDS:

PUBLIC SERVICE – DUTIES AND OFFENCES IN RELATION TO OFFICE – appeal against a decision pursuant to s 197 of the Public Service Act 2008 (Qld) – where one allegation substantiated – where decision that substantiated allegation amounts to misconduct – whether substantiated allegation amounts to misconduct – where allegation falls short of threshold for misconduct – where disciplinary action considered having regard to flawed ground for discipline – decision appealed against set aside and returned to decision-maker with directions

LEGISLATION AND

INSTRUMENTS:

Code of Conduct for the Queensland Public Service

Directive 14/20 – Discipline cl 8

Industrial Relations Act 2016 (Qld) s 562B

Public Service Act 2008 (Qld) ss 187, 188, 190, 194, 197, 201 (repealed)

Queensland Ambulance Service Disciplinary Policy

CASES:

Alderding v State of Queensland (Queensland Health) [2022] QIRC 268

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

Mathieu v Higgins & Anor [2008] QSC 209

Neil Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

Reasons for Decision

  1. [1]
    Ms Pauline Alderding is employed by the State of Queensland through Queensland Health as a Nurse Unit Manager (NG7) ('NUM'). She is employed within the Wide Bay Hospital and Health Service ('WBHHS') in the Specialist Outpatients Department ('SOPD') for the Fraser Coast. Ms Alderding has been employed by Queensland Health for over 30 years.
  2. [2]
    In a decision letter dated 25 November 2021, Ms Debbie Carrol, Chief Executive, WBHHS, informed Ms Alderding of her decision to impose the disciplinary action of a reduction in classification level and consequential change of duties ('the Decision').
  3. [3]
    By appeal notice filed 17 December 2021, Ms Alderding appeals the decision under ch 7 pt 1 of the Public Service Act 2008 (Qld) ('the PS Act').
  4. [4]
    Within her appeal notice, Ms Alderding also made an application that her name be suppressed in any reasons published by the Commission. That application was considered and refused in an earlier decision.[1]
  5. [5]
    The substantive appeal proceeds under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld).[2] It is not by way of rehearing, but rather involves a review of the decision arrived at and the decision-making process therein.[3] Its stated purpose is to decide whether the decision appealed against was fair and reasonable in all the circumstances.[4]

Background

  1. [6]
    On 24 May 2021, while passing her in a hallway, Ms Alderding made physical contact with a colleague, Ms Susan Summers ('the contact'). Ms Summers verbally reported the incident to her line manager, Ms Simone Grodeland.
  2. [7]
    On 9 June 2021, Ms Summers made a written complaint to WBHHS's human resources team regarding the contact, in addition to an earlier incident where Ms Summers felt she had been ignored and several other unspecified 'minor incidents'.
  3. [8]
    Within the same correspondence, Ms Summers stated Ms Grodeland had raised the contact with Ms Alderding in a meeting on 3 June 2021, but she felt this had 'just made it worse'.
  4. [9]
    On 21 June 2021, WBHHS obtained a statement from Mr Ben Wason who had witnessed the contact. Mr Wason's statement substantially corroborated the version of events provided by Ms Summers in her complaint.
  5. [10]
    By letter dated 25 July 2021, Ms Alderding was asked to show cause why a disciplinary finding should not be made against her in relation to the following allegation:

Allegation One

On 24 May 2021 you made inappropriate physical contact (shoulder barge) with Ms Susan Summers Team Leader Specialist Outpatients Department (SOPD) in the back corridor of SOPD Hervey Bay Hospital.

  1. [11]
    The particulars relevant to Allegation One were set out as follows:

The particulars of Allegation One are as follows:

  1. In an email complaint dated 9 June 2021 authored by Ms Susan Summers, she states:

a) "At around 2.30pm, I was on my way from my office to the microwave to get my lunch, talking with Brad Wason (witness)".

b) "Brad was going through the doorway back to the front counter when Pauline Alderding exited her office heading to the photocopier".

c) "I walked closer to the wall to give Pauline access to the photocopier, when she shoulder barged me in front of Brad".

d) "I stumbled a little and she said "you looked like you needed that" and laughed".

e) "Brad commented- "I can see the love here" I respond with "really" to her remark, collected my lunch from the microwave and returned to my office".

f) "For someone that barely speaks to me, I did not feel that it was appropriate behaviour".

  1. In a witness statement dated 21 June 2021 authored by Mr Brad Wason, he states:

a) "On 24 May 2021 at around 2:30pm I recall an incident involving Susan and Pauline Alderding, Nurse Unit Manager (NUM) SOPD, Hervey Bay Hospital".

b) "I recall I was having a conversation with Susan in the corridor at the back of the SOPD when Pauline walked towards Susan and made quite forceful contact with Susan using her shoulder".

c) "Pauline used enough force that Susan became unsteady/stumbled ".

d) "I recall Pauline used words to the effect of 'you looked like you needed that'".

e) "I recall Pauling laughed at Susan after she said this".

f) "I recall I said, "I can see the love here"".

g) "Susan replied to Pauling saying "really"".

h) "Pauline continued on towards the photocopier and Susan collected her lunch from the microwave and left the area".

i) "I would describe the physical interaction of Pauline as inappropriate and forceful".

j) "I would not describe Pauline's actions as mere 'horseplay'".

  1. [12]
    Attached to the correspondence was Mr Wason's statement and Ms Summers' complaint.
  2. [13]
    Ms Alderding was invited to respond to the allegation, which she did on 30 August 2021. Within her response, Ms Alderding:
  • denied she had shoulder barged Ms Summers but acknowledged having 'bumped' her in what she argued was intended to be a playful gesture;
  • stated she believed Mr Wason also understood the interaction to be playful as she perceived his statement 'I can see the love here' to be a recognition she was 'mucking around' and she did not believe the comment was said in a sarcastic way;
  • submitted the contact was not meant to be malicious or aggressive, but acknowledged with hindsight it was thoughtless;
  • expressed disappointment and frustration the matter had progressed to a disciplinary process, instead of being raised with her at the time, as she believed the incident could have been resolved;
  • stated she was sorry Ms Summers had perceived the contact to be aggressive, and submit she had not been given an opportunity to apologise to her given the disciplinary process;
  • expressed concerns Ms Summers had not raised the issue with her directly, submitting Ms Summers is no 'shrinking violet';
  • stated she believed Ms Summers had 'another agenda' in making the complaint;
  • submitted the allegation was a 'one-off' incident and argued this ought to be taken into account;
  • stated the meeting on 3 June 2021 occurred at her request following a series of emails regarding an unrelated issue and, although the contact was raised during that meeting, Ms Alderding had not understood Ms Summers was making a complaint;
  • stated Ms Grodeland seemed vague on the details of the contact and submitted she recalled Ms Grodeland mentioning she had asked Ms Summers whether it might have just been 'mucking around';
  • although not raised in the correspondence itself, responded to and denied Ms Summers' complaint that Ms Alderding had ignored her;
  • outlined her difficult relationship with Ms Summers and raised complaints regarding her conduct;
  • noted she felt there had been a 'smear campaign' prior to her return from a secondment because she believed the person acting in her role during that time wished to take on the role permanently, and some staff, including Ms Summers, appeared to support that person; and
  • raised concerns regarding lack of confidentiality, noting colleagues had contacted her to inform her they had heard rumours Ms Alderding had been charged with assault and that Ms Summers had told staff Ms Alderding was subject to a show cause process.
  1. [14]
    Ms Alderding concluded her response by stating she sincerely apologised to Ms Summers if she felt there was any ill intent in Ms Alderding's conduct.
  2. [15]
    By letter dated 27 September 2021, the decision-maker informed Ms Alderding she had determined Allegation One was substantiated. Based on that finding, the decision-maker found that, pursuant to s 187(1) of the PS Act, Ms Alderding was guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 187(4)(a).

Show Cause Process

  1. [16]
    Within the 27 September 2021 correspondence, the decision-maker informed Ms Alderding she was giving serious consideration to the disciplinary action of a reduction in her classification level from Nurse Grade 7 to Nurse Grade 6 and a consequential change in duties.
  2. [17]
    Ms Alderding was invited to respond to the proposed disciplinary action within 14 days.

Ms Alderding's Response to the Proposed Disciplinary Action

  1. [18]
    After obtaining an extension to the 14 day period in which to respond, the Queensland Nurses & Midwives Union ('QNMU') wrote to WBHHS on 12 October 2021. Within that correspondence, the QNMU noted Ms Alderding conceded the contact occurred although it noted she maintains a different version of events. It also stated it was surprised Ms Alderding's version of events was 'so strongly refuted' by WBHHS as QNMU considered it had provided little consideration to her response.
  2. [19]
    QNMU then made submissions in respect of the standard of proof required, the evidence available (specifically Mr Wason's statement) and prior management action.
  3. [20]
    Attached to the correspondence was Ms Alderding's response in which she:
  • accepted the decision to substantiate the allegation despite denying the contact occurred in the manner alleged, specifically in that she maintained her intent had not been malicious;
  • stated she was 'extremely disappointed' in the proposed disciplinary action;
  • acknowledged making contact with Ms Summers without her consent was 'inappropriate', 'stupid' and 'thoughtless';
  • reflected that she did not consider inappropriate physical contact without consent to be 'horseplay' and her actions were an error in judgement, notwithstanding her intent;
  • expressed regret at her actions and stated she 'would never do such a thing again';
  • argued it was unfair and untrue to state she had no insight into her actions in circumstances where she had immediately admitted to the contact, expressed her regret and repeatedly offered to apologise;
  • stated that the fact the contact was done openly and in full view of another person while Ms Alderding was smiling supports her explanation that she was attempting to be playful;
  • stated that, although she had previously had a friendly relationship with Ms Summers, their working relationship had deteriorated;
  • stated she was perplexed WBHHS did not believe she was attempting to be light-hearted, submitting it beggared belief that, if she intended to hurt Ms Summers, she would do so in view of other colleagues;
  • stated her belief that Ms Summers had understood the intent behind the contact and her conduct after the incident is not consistent with that of someone who has been the victim of an aggressive assault;
  • outlined her concerns regarding the fact Ms Summers was Mr Wason's supervisor and may have exercised some influence over him;
  • stated she had been reminded of her workplace conduct on only one occasion where no allegation had been substantiated against her;
  • outlined concerns regarding various meetings and interactions between 2020 and 2021 and her belief she had not been adequately supported by human resources or senior staff members;
  • noted WBHHS had not attempted to positively performance manage her;
  • clarified comments in her earlier response regarding her concerns that Ms Summers had not previously taken issue with raising matters with Ms Alderding directly, and submitted her decision not to do so with respect to the contact is perplexing;
  • reiterated her concerns that Ms Summers had an agenda in making her complaint as Ms Alderding considered she had mispresented what occurred; and
  • argued a reprimand would be sufficient in the circumstances and stated she was willingly to undertake any additional training WBHHS considered appropriate.

The Decision

  1. [21]
    The Decision relevantly provides:

... I have determined with your extensive experience and training, you would be cognisant of the expectations required as a nurse unit manager of the WBHHS. You have failed to show an appropriate level of insight and genuine contrition. You accept your actions however; you have attempted to change the focus to the complainant and witness to discredit them.

I cannot accept the risk imposed by you remaining in a management role within WBHHS. The expectation of managerial behaviour and conduct is to set the tone for the conduct of all employees. Given the amount of training you have already undertaken I do not believe further training would be of benefit. You submit the previous management action referred to in my correspondence dated 27 September 2021 should not be considered however, I would be remiss in my responsibility to not collate any reasonable management action and reminders of appropriate workplace conduct with ongoing training you have attended and determine that has not been effective in obtaining a sustained correction of your inappropriate conduct.

The above findings are serious and go to the heart of a fundamental aspect of your employment with the Health Service, namely the trust and confidence we have in you as a leader. Based on the seriousness of the substantiated allegation, it would not be appropriate to continue your employment in any management capacity, given in these circumstances where it was found you made inappropriate physical contact (shoulder barge) with an employee, an act so far removed from the expectations of a leadership role.

In determining my decision on the appropriate penalty to impose, I have taken into consideration your length of service with the WBHHS and the affect a reduction in classification will have on you and your family.

I have also considered the alternative penalty of a reprimand put forward in your response however, I do not believe based on the substantiated allegation that this alternative is appropriate and I would be remiss in my duties to continue your employment in a manager role. Nor would it place any weight on the nature of your serious misconduct and the context in which it occurred. The expectation of managerial behaviour and conduct is to set the tone for the conduct of all employees, you have not upheld your responsibility to model and promote this in line with the Code of Conduct.

Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the Act:

Reduction in classification level from Nurse Grade 7 to Nurse Grade 6.4 and consequential change of duties to a Clinical Nurse

Ms Alderding's Submissions

  1. [22]
    Ms Alderding contends the Decision is harsh and unfair in the circumstances.[5] She argues the intent of her actions has significant relevance and the decision-maker has failed to accept her intention was not malicious.[6] In this respect, she notes Ms Summers indicated she would have considered the contact light-hearted had it been from someone she had a better relationship with.[7]
  2. [23]
    Ms Alderding accepts her attempts to diffuse her tense relationship with Ms Summers were ill advised and submits she is prepared to apologise to her.[8] She argues she is unlikely to engage in such contact again, and her actions to date do not mean she is unable to continue in her substantive role.[9]
  3. [24]
    Ms Alderding raises concerns regarding the decision-maker's reliance on previous management action, including references to a meeting on 4 December 2019 and action taken by a Nursing Director in June 2020.[10]
  4. [25]
    She submits a meeting on 4 December 2019 cannot be considered management action for the purpose of determining disciplinary action because the meeting was held before Ms Alderding returned to her role after a long secondment, and the purpose of the meeting was to assist her in returning to her role.[11] Although Ms Alderding was informed during that meeting that some staff held concerns regarding her return to her role, she submits she was assured the purpose of the meeting was to support her return and the meeting did not constitute a warning or disciplinary action.[12]
  5. [26]
    Further, although she accepts her claims of lack of support from management are not relevant in relation to the conduct the subject of the allegation, she submits it is relevant to understanding the context of the management action in June 2020.[13] Ms Alderding explains this action arose because of a complaint made by another employee Ms Alderding was attempting to performance manage.[14] Further, although a performance improvement plan was proposed, Ms Alderding submits it was not implemented because no professional development plan had been undertaken since her return to the role in December 2019.[15]
  6. [27]
    Noting the decision-maker's comments that the present process is not performance related and positive performance management is not relevant, Ms Alderding argues previous management action must also not be relevant to the present process.[16]
  7. [28]
    Ms Alderding submits she is a late career nurse, with over 30 years employment with Queensland Health and no previous disciplinary action on her record.[17] Although she submits her current work environment is 'very tense', she argues she had been able to continue in her substantive role throughout the disciplinary process without incident.[18]
  8. [29]
    Finally, Ms Alderding argues the disciplinary action will have a significant effect on her and her family not just in the immediate future, but also into her retirement in respect of her superannuation.[19]

WBHHS's Submissions

  1. [30]
    WBHHS argues the penalty is reasonable, appropriate and proportionate to the substantiated conduct.[20] Consequently, it submits the Decision was fair and reasonable.[21]
  2. [31]
    It argues the decision-maker had regard to the seriousness of the conduct, Ms Alderding's position in a leadership role, and the fact previous management in addressing inappropriate conduct has not seen a sustained improvement in her behaviour.[22] Moreover, the imposition of the penalty has not been considered lightly and it reflects the seriousness of Ms Alderding's actions which it maintains amounts to misconduct.[23]
  3. [32]
    Further, it submits the decision-maker had regard to the statements made by Mr Wason, Ms Summers and Ms Alderding in her response, as well as Ms Alderding's length of service and previous disciplinary history.[24] The decision-maker also, it submits, had regard to the financial impact a reduction in classification will have on Ms Alderding and her family.[25]
  4. [33]
    WBHHS characterises Ms Alderding's conduct as a 'severe departure from accepted standards of a Public Servant' and notes the decision-maker considered Ms Alderding's extensive experience and training meant she would be cognisant of the expectations placed on her as a NUM.[26] With respect to her role as a NUM, WBHHS contends it is a management role and Ms Alderding's behaviour sets the tone for the behaviour and conduct of all nursing employees under her supervision.[27] Given the amount of training already undertaken by Ms Alderding, WBHHS submits the decision-maker did not consider further training would be of benefit.[28]
  5. [34]
    With respect to the decision-maker's reliance on previous management action, WBHHS argues it would be remiss of the decision-maker not to collate any reasonable management action and reminders of appropriate workplace conduct with the ongoing training Ms Alderding has attended and determine this has not been effective in obtaining a sustained correction of her inappropriate conduct.[29]
  6. [35]
    WBHHS argues Ms Alderding's conduct is serious and goes to the heart of a fundamental aspect of her employment, namely WBHHS's trust and confidence in her as a leader.[30] Consequently, it argues her actions are not compatible with continuing in a management role.[31]
  7. [36]
    Although it maintains the decision-maker considered the alternative penalty of a reprimand as proposed by Ms Alderding, it submits the decision-maker determined it would be inappropriate for Ms Alderding to continue in a management role and a reprimand would not place sufficient weight on the serious nature of Ms Alderding's actions and the context in which they occurred.[32]
  8. [37]
    WBHHS argues the Commission must decide the appeal by reviewing the decision appealed against to determine whether it was fair and reasonable.[33]
  9. [38]
    Although not defined in the PS Act, WBHSS argues a consideration of 'fairness' ought to involve considering whether a fair process was utilised, whereas 'reasonableness' ought to require a consideration of whether the outcome was reasonable.[34] Further, it submits findings made by the decision-maker which are reasonably open to be made, should not be disturbed on appeal.[35]

Relevant Principles

  1. [39]
    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; or

...

  1. (4)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or

...

Example of misconduct—

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

...

188 Disciplinary action that may be taken against a public service employee

  1. (1)
    In disciplining a public service employee, the employee's chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.

Examples of disciplinary action—

  • termination of employment
  • reduction of classification level and a consequential change of duties
  • transfer or redeployment to other public service employment
  • forfeiture or deferment of a remuneration increment or increase
  • reduction of remuneration level
  • imposition of a monetary penalty
  • if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments
  • a reprimand

…

  1. (5)
    In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
  1. (6)
    An order under subsection (1) is binding on anyone affected by it.

…

190 Procedure for disciplinary action

In disciplining a public service employee or former public service employee, a chief executive must comply with this Act, any relevant directive of the commission chief executive, and the principles of natural justice.

  1. [40]
    Directive 14/20 – Discipline ('the Directive') relevantly provides:

8.5 Show cause process for proposed disciplinary action

  1. (a)
    The chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action).
  1. (b)
    The chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented.
  1. (c)
    The disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 188 of the PS Act.
  1. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee's explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xi)
    the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.
  1. (e)
    A show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated.
  1. (f)
    The chief executive must provide the employee with a minimum of 7 days from the date of receipt of a show cause notice on disciplinary action 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 action if there are reasonable grounds for extension.
  1. (g)
    If the employee does not respond to a show cause notice on disciplinary action, or does not respond within the nominated timeframe in clause 8.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.

8.6 Decision on disciplinary action

  1. (a)
    A chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken.
  1. (b)
    The chief executive must inform the employee of the decision in writing, including:
  1. (i)
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. (ii)
    excluding a termination decision, information that the employee may appeal the decision on disciplinary action
  1. (iii)
    for a termination decision, information that the employee may lodge an application for reinstatement under the Industrial Relations Act 2016.
  1. (c)
    A chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. (i)
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. (ii)
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. (iii)
    the employee has suggested the disciplinary action as an appropriate alternative penalty.
  1. (d)
    Disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public service employee has expired or any appeal lodged is finalised.

Was the Decision Fair and Reasonable?

  1. [41]
    Within her submissions, Ms Alderding argues the decision to substantiate the allegation was not fair and reasonable and ought to be set aside. Specifically, she raises several concerns with the evidence considered by the decision-maker in substantiating the allegation and the weight afforded to Ms Alderding's response to the initial show cause notice, including the explanation for her conduct.[36] Ms Alderding also makes submissions with respect to the credibility of both Ms Summers and Mr Wason.[37]
  2. [42]
    The difficulty with this approach, however, is that the decision to substantiate the allegation was made and communicated to Ms Alderding on 27 September 2021. That decision is a different decision to that which forms the basis of this appeal which deals with the proposed disciplinary action.
  3. [43]
    Had Ms Alderding wished to challenge the substantiation of the allegation, she had the opportunity to bring an appeal in respect of that decision. She has not done so.
  4. [44]
    Instead, within her appeal notice, Ms Alderding clearly indicates the decision she is appealing is the decision made on 30 November 2021, which imposes disciplinary action.
  5. [45]
    My consideration is therefore limited to the decision on disciplinary action and whether that decision was fair and reasonable in all the circumstances.

Did the Substantiated Allegation Amount to Misconduct?

  1. [46]
    Section 187(4) of the PS Act defines misconduct as 'inappropriate or improper conduct in an official capacity'. However, the PS Act does not provide guidance as to what is meant by 'inappropriate or improper conduct'.
  2. [47]
    In Pillai v Messiter (No 2),[38] Kirby P (as his Honour then was), observed:31

... [T]he statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession. Something more is required. It includes a deliberate departure from accepted standards for such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.[39]

  1. [48]
    In Mathieu v Higgins & Anor,[40] Daubney J considered cl 10(a) of the Queensland Ambulance Service Disciplinary Policy ('the QAS Policy'). The QAS Policy defined 'misconduct' as 'disgraceful or improper conduct in an official capacity'.
  2. [49]
    When considering cl 10(a) of the QAS Policy, Daubney J was of the view it was not appropriate to rigidly separate the definition into its component parts.[41] Instead, he determined that each term should be read as giving colour to the other.[42] His Honour then held that:

... 'misconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct. As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.[43]

  1. [50]
    Relevantly, Ms Alderding accepts the contact was inappropriate and was made without Ms Summers' consent.
  2. [51]
    To be clear, I consider making physical contact with another person without their consent to be entirely unacceptable. I also accept that as a late career nurse in a leadership position and with her experience and training, Ms Alderding should have understood the inappropriateness of her actions.
  3. [52]
    However, having regard to the material before me, although I consider it was open to the decision-maker to conclude on the balance of probabilities that Ms Alderding made physical contact, using her shoulder, with Ms Summers, I do not think it was fair and reasonable for the decision-maker to characterise the behaviour as misconduct.
  4. [53]
    Nor does it appear on the materials Ms Alderding was indifferent to Ms Summers' concerns in circumstances where she openly acknowledged making contact with Ms Summers and also offered an apology for her actions.
  5. [54]
    In this respect, while I agree with Ms Alderding that her actions were thoughtless and foolishly inappropriate, on my reading of the materials I am not persuaded she exercised any deliberate intent to harm Ms Summers.
  6. [55]
    In those circumstances, I consider her actions fall short of the threshold for misconduct.

Is the Disciplinary Action Fair and Reasonable in the Circumstances?

  1. [56]
    Having determined Ms Alderding's actions in respect of the substantiated allegation fall short of misconduct, I consider the decision on disciplinary action is not fair and reasonable as the appropriateness of the imposed penalty has been considered in light of a conclusion Ms Alderding engaged in misconduct.
  2. [57]
    Consequently, it seems to me the best way forward is to return the matter to decision-maker with a copy of these reasons, and a direction that the decision-maker reissue their decision having regard to my finding that Ms Alderding's conduct did not amount to misconduct.

Conclusion

  1. [58]
    Pursuant to s 194(1)(b)(i) of the PS Act, an appeal may be made against a decision to discipline a public service employee.
  2. [59]
    Ms Alderding maintains the Decision was unfair and unreasonable.
  3. [60]
    For the reasons given above, the Decision was not fair and reasonable because Ms Alderding's conduct did not amount to misconduct.

Orders

  1. [61]
    I order accordingly.
    1. The appellant's conduct in relation to Allegation One does not meet the definition of 'misconduct' in ss 187(1)(b) and 187(4)(a) of the Public Service Act 2008 (Qld).
    2. The decision appealed against is returned to the decision-maker with a copy of these reasons.
    3. The decision-maker is directed to reissue the decision on disciplinary findings and proposed disciplinary action containing only the substantiated allegation I have found to be fair and reasonable, namely Allegation One.
    4. The decision-maker is further directed to specify the following in the reissued decision:
  1. (a)
    the standard or standards of the Code of Conduct for the Queensland Public Service the decision-maker finds the appellant contravened in respect of Allegation One;
  2. (b)
    the section or sections of the Public Service Act 2008 (Qld) under which the decision-maker finds there are grounds to discipline the appellant in respect of Allegation One; and
  3. (c)
    the decision-maker's reasons for determining the appellant contravened each of the specified standards and sections.
    1. The decision-maker reissue their decision within 21 days of these reasons.

Footnotes

[1] Alderding v State of Queensland (Queensland Health) [2022] QIRC 268.

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

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

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

[5] Ms Alderding's submissions filed 11 January 2022, [22].

[6] Ibid [23]-[24].

[7] Ibid [23].

[8] Ibid [24].

[9] Ibid.

[10] Ibid [25].

[11] Ibid [26].

[12] Ibid [27]-[28].

[13] Ibid [29].

[14] Ibid.

[15] Ibid [20].

[16] Ibid [31].

[17] Ibid [32].

[18] Ibid [33].

[19] Ibid [34].

[20] WBHHS's submissions filed 1 February 2022, [20].

[21] Ibid.

[22] Ibid

[23] Ibid

[24] Ibid [21].

[25] Ibid [24].

[26] Ibid [22]-[23].

[27] Ibid [23].

[28] Ibid

[29] Ibid

[30] Ibid

[31] Ibid.

[32] Ibid [25].

[33] Ibid [27]; citing Public Service Act 2008 (Qld) s 201, although I note this provision was repealed in September 2020 and effectively replaced by Industrial Relations Act 2016 (Qld) s 562B.

[34] Ibid [27].

[35] Ibid [28]; citing Neil Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252.

[36] Ms Alderding's submissions filed 11 January 2022, [1]-[9], [18]-[19].

[37] Ibid [10]-[17].

[38] (1989) 16 NSWLR 197.

[39] Ibid 200.

[40] [2008] QSC 209.

[41] Ibid [25(a)].

[42] Ibid.

[43] Ibid [26].

Close

Editorial Notes

  • Published Case Name:

    Alderding v State of Queensland (Queensland Health) (No 2)

  • Shortened Case Name:

    Alderding v State of Queensland (Queensland Health) (No 2)

  • MNC:

    [2022] QIRC 315

  • Court:

    QIRC

  • Judge(s):

    Knight IC

  • Date:

    12 Aug 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
Alderding v State of Queensland (Queensland Health) [2022] QIRC 268
2 citations
Jump To
Cite 1 - [2022] QIRC 268
Cite 2 - [2022] QIRC 268
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Mathieu v Higgins [2008] QSC 209
5 citations
Jump To
Cite 1 - [2008] QSC 209
Cite 2 - [2008] QSC 209
Cite 3 - [2008] QSC 209
Cite 4 - [2008] QSC 209
Cite 5 - [2008] QSC 209
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Pillai v Messiter (No.2) (1989) 16 NSW LR 197
4 citations
Jump To
Cite 1 - (1989) 16 NSW LR 197
Cite 2 - (1989) 16 NSW LR 197
Cite 3 - (1989) 16 NSW LR 197
Cite 4 - (1989) 16 NSW LR 197

Cases Citing

Case NameFull CitationFrequency
Beaumont v State of Queensland (Queensland Health) [2024] QIRC 1562 citations
1

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