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  4. Dhanapathy v State of Queensland (Queensland Health) - [2022] QIRC 356

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Dhanapathy v State of Queensland (Queensland Health)[2022] QIRC 356

Dhanapathy v State of Queensland (Queensland Health)[2022] QIRC 356

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Dhanapathy v State of Queensland (Queensland Health) [2022] QIRC 356

PARTIES: 

Dhanapathy, Ashwini

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2022/256

PROCEEDING:

Public Service Appeal – Appeal against a disciplinary decision

DELIVERED ON:

13 September 2022

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

Pursuant to s 562(C)(1) of the Industrial Relations Act 2016:

  1. (a)
    I return the matter to the decision-maker with a copy of this decision to reissue the disciplinary decision in accordance with the following specifications:
  1. (i)
    Allegation One remains substantiated but is adjusted to remove particulars (j), (k) and (l);
  1. (ii)
    All references to misconduct under s 187(4)(a) of the PS Act be removed;
  1. (iii)
    The ground for discipline arising from Allegation One is that Dr Dhanapathy contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action (section 187(1)(g) of the PS Act);
  1. (iv)
    The relevant standard of conduct is the Public Service Code of Conduct, specifically cl 1.5; and
  1. (v)
    The disciplinary action of a reprimand is confirmed.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – public service appeal – appeal against a disciplinary decision – whether the decision was fair and reasonable – whether disciplinary action was appropriate and proportionate – disciplinary action of a reprimand confirmed – ground for discipline substituted

LEGISLATION:

Code of Conduct for the Queensland Public Service cl 1.5

Industrial Relations Act 2016 ss 562B, s 562

Public Service Act 2008 ss 187, 188, 194

Public Service Commission Directive 14/20: Discipline cls 5, 8

Reasons for Decision

Background

  1. [1]
    Dr Ashwini Dhanapathy (the Appellant) is employed by the State of Queensland (Queensland Health) (the Respondent) as a Registrar, Department of Anaesthetics, Princess Alexandra Hospital (PAH) within Metro South Hospital and Health Service (MSHHS).
  1. [2]
    The Respondent commenced a show cause process on 23 August 2021 in relation to an allegation that the Appellant illegally parked on the PAH campus. The process resulted in the substantiation of the allegation and a decision to impose the disciplinary action of a reprimand on the Appellant.
  1. [3]
    The following particulars of the allegation were outlined by Ms Adrianne Belchamber, A/Executive Director, PAH, MSHHS (the decision-maker), in the disciplinary finding letter of 23 August 2021:

Allegation one

On or around 7 July 2021, you illegally parked your Silver/Brown Mercedes registration number [redacted] on the Princess Alexandra Hospital Campus.

The particulars of allegation one are as follows:

  1. Your vehicle has been flagged numerous times in the past by building 07 staff for parking outside the main entry, impeding disability and emergency services vehicles.
  2. You were issued a fine on 30 June 2021 at approximately 0810hrs, for parking on the footpath blocking a walkway and wheelchair/disability ramp leading to building 07, level 1.
  3. On 7 July 2021 you were approached by Control Room Operator, Safety and Response, Mr Charlie Skelton because you had attempted to park onsite, outside building 07.
  4. You advised Mr Skelton that you were currently on the phone to Mr Simon Driscoll, Safety and Response, Control Room Operator.
  5. Control Room Operator, Mr Driscoll received a call from your [sic] at 0725hrs stating that you had authorisation from Mr Praneel Kumar, Senior Director, Corporate Services PAH to park in front of the [Geriatric and Rehabilitation Unit (GARU)] in your Silver/Brown Mercedes [redacted], until your parking authorisation is completed.
  6. You then advised Mr Skelton that you had spoken to Mr Kumar and received authorisation to park onsite.
  7. Body worn camera footage by Mr Skelton shows you were advised by Mr Skelton that if Mr Kumar had authorised parking this would be in the basement.
  8. You also advised Mr Skelton you have special circumstances because you drive all the way from Ipswich, and you need to be in theatre by 0710hrs.
  9. Mr Skelton advised you that your vehicle needs to be moved to a safer location as the current location is not safe for yourself, others and large emergency vehicles who need to safely complete u-turns.
  10. You then called Mr Driscoll a second time at 0731hrs and reported that Mr Skelton had been extremely rude to you and you wanted to make a complaint.
  11. You then stated to Mr Driscoll that Mr Skelton's actions were completely unacceptable, that you had been studying for over 14 years and you didn't think it was appropriate for someone who probably hasn't passed the 10th grade to speak to you like that.
  12. Mr Driscoll advised you of the process to lodge a formal complaint if that is what you felt you needed to do and was well within your rights to do so.
  1. [4]
    The Appellant believes the imposition of a reprimand to be unfair. Her grounds of appeal provide an explanation in response to the above particulars.

Preliminary issues

There is an error in the disciplinary grounds identified by the decision-maker

  1. [5]
    In the letter advising the Appellant of the disciplinary reprimand, the decision-maker repeats her determination made in the disciplinary finding decision of 29 November 2021 and says:

On the basis of my findings in relation to the allegation, I determined that:

In respect of Allegation One, pursuant to section 187(1)(d) of the Public Service Act 2008 (the Act), you have contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person: that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.

  1. [6]
    The characterisation of the disciplinary finding as misconduct within the meaning of s 187(4)(a) of the Public Service Act 2008 (Qld) (the PS Act) is clearly in error. Section 187(4)(a) defines misconduct and s 187(1)(b) provides the grounds for discipline on the basis of misconduct.
  1. [7]
    This error appears to have carried through the entire show cause process.  The first show cause notice regarding the allegation states a possible ground for discipline is that provided in s 187(1)(d) of the Act and goes on to add the meaning of misconduct at s 187(4)(a).  The second show cause notice regarding discipline repeats the error in making a finding that grounds for discipline exist. In particular, the decision-maker says that pursuant to 'section 187(1)(d) of the Act, you have contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person: that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a).' My orders resulting from this appeal will include a direction that this error be rectified so that it is clear that the Appellant has not been found guilty of the serious disciplinary ground of misconduct in an official capacity as a result of a parking infringement.
  1. [8]
    I note that the Respondent has already agreed that the reference to misconduct was in error and offered to reissue the letter to that effect.  However, I determined that was not necessary in circumstances where the appeal may lead to other changes to the decision.

The particulars of Allegation One go beyond that allegation to include other matters

  1. [9]
    Allegation One has a narrow focus, being that 'on or around 7 July 2021 you illegally parked your Silver/Brown Mercedes registration number [redacted] on the Princess Alexandra Hospital Campus.' I have reviewed the particulars of Allegation One and I find that particulars (j), (k) and (l) refer to actions which occurred after the Appellant had moved her vehicle. These particulars appear to be focused on a complaint the Appellant made, comments she allegedly made while making the complaint and advice provided to her regarding making a complaint. 
  1. [10]
    I have determined that it was not fair and reasonable for particulars (j), (k) and (l) to be attributed to Allegation One.  Those particulars may relate to the parking incident, but they describe a different event and appear to be targeted at the Appellant's remarks and complaint rather than the action of parking illegally.
  1. [11]
    For the purposes of this decision, I will not consider those particulars in determining whether it was fair and reasonable to substantiate Allegation One.  It follows that I will not take into consideration submissions of the parties regarding these particulars.
  1. [12]
    Further to this, particular (f) appears to have already been addressed at particular (e).  I will consider submissions regarding these particulars together.
  1. [13]
    I will also consider particulars (g) and (h) together given the overlap between them.

Is the Appellant entitled to appeal?

  1. [14]
    Section 194 of the PS Act lists various categories of decisions against which an appeal may be made.  Section 194(1)(b) provides that an appeal may be made against:
  1. (b)
    a decision under a disciplinary law to discipline —
  1. (i)
    a person (other than by termination of employment), including the action taken in discipling the person; ...
  1. [15]
    The appeal notice was filed with the Industrial Registry on 11 February 2022 within 21 days of the decision being received on 21 January 2022. I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time.

Appeal Principles

  1. [16]
    Section 562B(3) of the Industrial Relations Act 2016 (the IR Act) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [17]
    Relevantly to this matter, s 562B(4) of the IR Act states that:

For an appeal against a promotion decision or a decision about disciplinary action under the Public Service Act 2008, the commission —

  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [18]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [19]
    A Public Service Appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [20]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. (a)
    confirm the decision appealed against; or

…

  1. (c)
    For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
  1. [21]
    Directive 14/20: Discipline (the Directive) addresses the relevant factors to be considered in proposing appropriate and proportionate disciplinary action:

8.  Discipline process

…

8.5Show cause process for proposed disciplinary action

…

  1. (d)
    In proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. (i)
    The seriousness of the disciplinary finding
  1. (ii)
    The employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    Whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    The employee's overall work record including previous management
  1. (v)
    Interventions and/or disciplinary proceedings
  1. (vi)
    The employee's explanation, if any
  1. (vii)
    The degree of risk to the health and safety of employees, customers and members of the public
  1. (viii)
    The impact on the employee's ability to perform the duties of their position
  1. (ix)
    The employee's potential for modified behaviour in the work unit or elsewhere
  1. (x)
    The impact a financial penalty might have on the employee
  1. (xi)
    The cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (xii)
    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]

Was it fair and reasonable to find that Allegation One was substantiated?

  1. [22]
    The Appellant's appeal notice contained extensive submissions regarding each of the particulars of the allegation. I will deal with each particular in turn considering the submissions of the parties specific to the particulars and come to my own conclusion based on the material before me.
  1. [23]
    The Respondent says that it was fair and reasonable for the decision-maker to find the allegation against the Appellant substantiated.  The Respondent says that the Appellant's park on 7 July 2021 was not accidental, a mistake or inadvertent, rather it was a significant departure from the available and acceptable options to her, which she was clearly aware of.  The Appellant does not deny parking improperly on the PAH campus on 7 July 2021 and it was open on the material available to the decision-maker to find the allegation substantiated and establish the relevant discipline ground.

Particular (a) Your vehicle has been flagged numerous times in the past by building 07 staff for parking outside the main entry, impeding disability and emergency services vehicles

  1. [24]
    The Appellant says that this particular is inaccurate and claims that she has never parked outside of building 07 which is clearly marked as a designated ambulance bay, and as such, she has never impeded disability or emergency services vehicles.  The Appellant admits to parking on the curb side outside the vicinity of building 07 on 30 June 2021 in what she says was a mistaken belief that it was permissible to park there.  The Appellant says there were no signs forbidding parking in that area.
  1. [25]
    The Appellant says that the second time she parked in that area occurred on 7 July 2021 after she says she had specifically sought and genuinely believed that she had permission from the previous night's security officer to park there the following morning because she had 'an early case'.
  1. [26]
    The Appellant says she was not provided with any written record or photographic evidence regarding the particular that her car was 'flagged numerous times…by building 07 staff' and that the comment was sent in an email from Security Officer Skelton to the PAH Facility Security Manager Mr McDonald, without any associated evidence. The decision-maker directly paraphrased this in her letter dated 23 August 2021.
  1. [27]
    The Respondent says that the PAH is a large tertiary public hospital employing approximately 9,000 staff and that there are a number of parking and public transport options available to staff who work there.  The Respondent says that it is natural that staff, patient and visitors are not permitted to park outside of designated parking areas which are clearly signed, including on footpaths and demarcated drop-off zones.  Further, the Respondent says that the internal roads within PAH are well-signed and that designated parking spaces are clearly signed, unambiguous and easy to identify.
  1. [28]
    The Respondent says that it is inexplicable that a reasonable person would misunderstand which areas within the PAH campus are acceptable to park their cars in or that parking outside of a designated space could be a genuine mistake.
  1. [29]
    The Respondent says that the entrances and conditions of entry to the PAH campus are also well-signed and the area in which the Appellant parked is well-signed.[2]

Particular (b) You were issued a fine on 30 June 2021 at approximately 0810hrs, for parking on the footpath blocking a walkway and wheelchair/disability ramp leading to building 07, level 1

  1. [30]
    The Appellant says she admits to parking in front of building 07 on 30 June 2021, though not near the entrance or blocking the walkway or ramp.  She says that she did not receive an infringement notice but did receive a phone call asking her to move her car.
  1. [31]
    The Appellant says that she was told that she was not to park at this location as it was not a designated car space.  The Appellant reiterates that she was parked at the curb side and that there were no clearly demarcated signs or notifications that parking in the area was not permitted.
  1. [32]
    The Appellant says that when she received the phone call, she acknowledged the concerns and apologised for her genuine mistake. The Appellant says that she was unable to immediately move her car in a timely manner because her theatre case had already begun and she did not have anyone to relieve her of her duties.
  1. [33]
    The Respondent submits that on 30 June 2021, the Appellant was issued with an infringement notice for parking on a footpath and blocking a walkway and wheelchair ramp on campus at the PAH.  The infringement notice issued a penalty and put the Appellant formally on notice that she had parked inappropriately.

Particular (c) On 7 July 2021 you were approached by Control Room Operator, Safety and Response, Mr Charlie Skelton because you had attempted to park onsite, outside building 07

  1. [34]
    The Appellant repeats that she genuinely thought she had permission to park temporarily on 7 July 2021 until mid-morning, at which time she could move her car to her usual parking.
  1. [35]
    The Appellant says that she believed that the night security guards had given her permission to park in that area and that they would notify the team of her registration number so that she would not incur an infringement.
  1. [36]
    The decision-maker says that the Appellant had not sought authority as Security Officers do not have authority to grant permission for on-campus parking.  The Appellant says that she understands this now but at the time, she thought she had the correct authority and maintains that the night Security Officers had granted her permission to park in that area.
  1. [37]
    The Appellant says that had she known she did not have authority to park in the area, she would have made other arrangements, for example, calling to let someone know she would be late for the start of the case.
  1. [38]
    The Respondent says that the Appellant does not have approval to park on site at the PAH and that it is not in dispute that the Appellant is aware of legitimate parking options available to her.  The Respondent says that the Appellant is not the only employee who attends work early in the morning or who undertakes a significant commute to the PAH.  These factors do not confer special privileges on the Appellant or constitute reasonable excuses for parking illegally on the PAH campus.
  1. [39]
    The Respondent says that on 7 July 2021, PAH Safety and Response noticed that the Appellant had parked her vehicle outside of a designated space where her car was obstructing the turnaround of large vehicles including emergency vehicles. The Appellant was approached by Security Officers and asked to relocate her vehicle.
  1. [40]
    The Appellant's reply submissions state that she was not parked but had 'simply pulled into the set-down vicinity' where security staff were 'already lying in wait'. She reiterates that she followed the direction to move her car when it was given.   I have reviewed the body-worn camera footage[3] and considered the Appellant's analysis of it. I disagree with her assessment that 'two PAH Security Officers subsequently descended on the Appellant immediately and pulled into the car space directly behind the Appellant before she even had a chance to reverse into it'.[4]  The footage demonstrates that the PAH Security Officers sat in their buggy at a distance from the Appellant's vehicle for several minutes before approaching her.

Particular (d) You advised Mr Skelton that you were currently on the phone to Mr Simon Driscoll, Safety and Response, Control Room Operator

  1. [41]
    The Appellant agrees that she called PAH Security via the switchboard and an extension number. The Appellant says that she called Security Officer Driscoll so that he could review the records or notes made by the night Security Officer stating that she had called the previous evening to seek permission to temporarily park in the vicinity of building 07 that morning.
  1. [42]
    The Respondent says that the interaction of 7 July 2021 between the Appellant and Metro South Health (MSH) Security was captured on body-worn camera footage. The footage shows the Appellant telling Mr Skelton that she is on the phone to 'Simon'.

Particular (e) Control Room Operator, Mr Driscoll received a call from you at 0725hrs stating that you had authorisation from Mr Praneel Kumar, Senior Director, Corporate Services PAH to park in front of GARU in your Silver/Brown Mercedes [registration redacted], until your parking authorisation is completed

Particular (f) You then advised Mr Driscoll that you had spoken to Mr Kumar and had received authorisation

  1. [43]
    The Appellant says that this is a 'subjective claim' directly paraphrased by the decision-maker in her letter without substantiation.
  1. [44]
    The Appellant says that her understanding is that parking authorisation takes several months or up to three years to complete and so it is illogical and unlikely that she stated that she wished to park in front of the GARU until she had authorisation.
  1. [45]
    The Appellant says that she called Mr Kumar the evening prior and pleaded her case to see if the parking pass could be expedited.  The Appellant says that when she asked about authority to park on campus, he directed her to PAH Security, stating that they would have to provide permission to park on-campus temporarily.
  1. [46]
    The Appellant says that she sent an email to Mr Kumar to prove that she had spoken with him the night before and to corroborate a time-stamped phone call to the PAH Switchboard.  The Appellant says that she forgot to include details of the discussion about on-campus parking because she was drafting an email specifically about expediting the parking pass and the email was sent at 1.44 am on 7 July 2021.
  1. [47]
    The Appellant says that she did not specifically ask Mr Kumar to grant her permission to park on campus but also appears the place blame for her belief that she was authorised to park on campus with Mr Kumar who she says misdirected her and miscommunicated with her.  Alternatively, the Appellant says that the Security Officers neglected to tell her that they were not authorised to approve parking and says 'it is clear that PAH Security Officers are not well aware of their own authorisation capacity nor are they familiar with the PAH Parking procedure'.[5]
  1. [48]
    The Respondent says that the Appellant notified the Security Officers that she had obtained permission to park where she had.  The Respondent says that this was not the case, and that while she had sought permission to park in non-designated spaces, the permission was not granted and the Appellant had been informed that she would likely be fined if she parked outside of the designated spaces.[6] The Respondent attaches an email from Mr Kumar, who the Appellant said had granted her permission to park on campus.  The email says:

Hi Michael,

Thanks for the email.  I received a call from this doctor last evening.  I did not give any such approval as claimed by her.  In fact, I reiterated to her that she cannot park in non-designated spots as parking fines will apply.  If this doctor has broken the local law, she should be issued with a fine immediately.

Thanks

….

  1. [49]
    The Respondent says that the Appellant did not have permission to park on campus at the PAH. Permission to park on campus is, at times, granted to MSHHS executives and Senior Medical Officers, and even then, is only granted to park in designated parking bays, not footpaths and drop-off zones.  There is no employee who is permitted to park in the location where the Appellant had parked her car.

Particular (g) Body worn camera footage by Mr Skelton shows you were advised by Mr Skelton that if Mr Kumar had authorised parking this would be in the basement

Particular (h) You also advised Mr Skelton you have special circumstances because you drive all the way from Ipswich, and you need to be in theatre by 0710hrs

  1. [50]
    The Appellant says that this is an anecdotal claim made by Security Officer Skelton in his email to the Facility Service Manager, has been paraphrased by the decision-maker without substantiation and has been taken out of context in her subsequent responses dated 29 November 2021 and 13 January 2022.  The Appellant says that she has never said that she has 'special circumstances' or implied that she was seeking special treatment indefinitely.
  1. [51]
    I have reviewed the body-worn camera footage and it records the Appellant telling Mr Skelton, 'I have a special circumstance, I need to be in theatre by 7-10, I'm already running late because I have to travel all the way from Ipswich every day…'. Later in the conversation, the Appellant says, 'I also have to be in theatre, and it's a 12-hour case, and you don't know my special circumstance'.
  1. [52]
    The Respondent says that Security Officers alerted the Appellant to the fact that if she had been granted permission to park on campus, she would have been given access to the designated car park. The Appellant told the Security Officers that she has a special circumstance, being that she has to drive from Ipswich, had to be in theatre early, that they didn't understand what she went through, and that they, and more generally, the workplace lacked compassion.  The Security Officers calmly reiterated that regardless of these issues, she could not park in an area where her car would obstruct other vehicles.  The Appellant then moved her car. (This is an accurate representation of the conversation as recorded by the body-worn camera footage).
  1. [53]
    The Appellant says that the body-worn camera footage does not sufficiently capture how she was made to feel by the PAH Security Officers on 7 July 2021 and that they were cold, rude, assuming and intimidating. The Appellant says that she was embarrassed at her own place of work in front of the general public and other employees passing by.
  1. [54]
    The Respondent reiterates that the footage demonstrates that the Security Officers were calm, respectful and professional in their interactions with the Appellant.
  1. [55]
    While it is not the focus of this appeal, for completeness, I note that the footage does not evidence 'cold, rude, assuming or intimidating' tone or behaviour on the part of Mr Skelton.  Mr Skelton appears to be calm and reasonable throughout the interaction and at the end of the conversation when the Appellant asks for his name, he said, 'My name is Charlie.'

Particular (i) Mr Skelton advised you that your vehicle needs to be moved to a safer location as the current location is not safe for yourself, others and large emergency vehicles who need to safely complete U-turns

  1. [56]
    The Appellant says that while she was told to move her car, there was no mention of concern for her safety. My review of the footage shows that Mr Skelton refers to safety of vehicles and passengers, that parking in authorised areas puts people in danger and towards the end of the interaction says, 'this is not safe for anyone'.
  1. [57]
    The Appellant says that the footage demonstrates that she followed the directive and moved her car and that this clearly shows that she did not 'contravene without reasonable excuse, a direction' given to her by a 'responsible person'.

Particulars (j), (k) and (l)

  1. [58]
    For the reasons stated above, I find that these particulars reference events that occurred after the Appellant moved her vehicle and are not relevant to the allegation.  However, for completeness, I note that the Respondent does not appear to rely on these particulars and its submissions merely state that the Appellant made the complaint.

Consideration

  1. [59]
    I have reviewed the footage provided by the Respondent and have referred to it above where appropriate.  The first thing to note is that the Security Officers wait several minutes before approaching the Appellant in her vehicle.  For some reason, the Appellant remains in her vehicle during this time, potentially because she is on the phone attempting to seek authorisation to park on campus.  The footage demonstrates that the place where the Appellant was in her parked vehicle was marked with wide painted chevrons on the bitumen and yellow paint on the curb.  It is visibly a no parking area.
  1. [60]
    I do not accept that the Appellant would have received authorisation of any kind to park in the place where she was sitting in her car, though it is possible that she was pulled over in that space while seeking advice on where to park. The email from Mr Kumar confirms that the Appellant contacted him seeking authorisation to park on the campus, but he also states that he advised her that she was not to park in the non-designated spaces. I have no reason to doubt the content of Mr Kumar's email.
  1. [61]
    The footage clearly shows Mr Skelton providing the Appellant with a reasonable direction to move her car.  The Appellant does not immediately comply and tells Mr Skelton that she is on the phone to Simon and that as a result of a conversation with Mr Kumar, she has been given authorisation to park.  Mr Skelton does not deny that such authorisation may have been given, however points out that permission would not have been granted to park in the space where the Appellant was parked and if permission had been provided, it would have been in the basement area. 
  1. [62]
    The footage shows that the Appellant is argumentative and instead of accepting the direction, seeks to provide the Mr Skelton with her special circumstances including that she drives from Ipswich and has an early surgery that she is already late for.  I have watched the footage numerous times because, at times, it is difficult to understand what the Appellant is saying as she continues talking while the Security Officer is attempting to interact with her. 
  1. [63]
    Eventually the Appellant moves her vehicle. However, the troubling aspect of the interaction is that the Appellant agrees that she had parked in a similar area blocking the walkway and access to the disability ramp some days earlier and also makes the representation that she has been given authorisation to park on campus.  It is clearly not her intention to move her car, but rather to convince the Mr Skelton that she is able to park in the space.  To the contrary, Mr Kumar had directed the Appellant that she was unable to park in non-designated areas and Mr Skelton also provided that direction.
  1. [64]
    In circumstances where the Appellant agrees that she had parked in a non-designated area on 30 June 2021 and had been asked to move her car and told she could not park there; did not have authorisation to park in a similar area on 7 July 2021; parked in that area on 7 July 2021 and when asked to move, argued that she was able to park there based on her special circumstances and this is all able to be gleaned from the submissions of the parties and the body-worn camera footage of Mr Skelton, I find that it was open to the decision-maker to find that Allegation One was substantiated.
  1. [65]
    I understand that the Appellant is very concerned about what she sees as an over-reliance on hearsay, anecdotes and unproven accusations. As the footage is very clear regarding the interaction during the parking incident of 7 July 2021,  I understand that some of the Appellant's concerns relate to the remarks she apparently made following the incident when making a formal complaint about the Mr Skelton arising from the interaction on 7 July 2021.  I want to be clear that I have not considered the particulars relating to the complaint and the interactions when determining whether the decision subject of the appeal was fair and reasonable.

Was it fair and reasonable to determine that Allegation One gave rise to a ground for discipline under s 187(1)(d), that the Appellant had contravened, without reasonable excuse, a direction given to an employee as a public service employee by a responsible person?

  1. [66]
    With regard to the correspondence of 29 November 2021 informing the Appellant that Allegation One was substantiated and a ground for discipline existed, the Appellant says that her submissions were repeatedly paraphrased out of context and incorrect statements have been made. The letter states that she had admitted to parking on grounds without authorisation on 6 July 2021 when she did not do so at all.  The Appellant further submits that the date 6 July 2021 is not mentioned in the particulars of Allegation One at all. She says that there is no reference to what specific evidence has been used to uphold the consideration of conferring a reprimand.
  1. [67]
    The Appellant says that the decision-maker determined that Allegation One was substantiated on the basis that the Appellant had admitted to parking in front of the building on 30 June 2021, incorrectly stating that she had parked on the grounds without authorisation on 6 July 2021 and that she has 'carefully reviewed' the single body-worn camera footage dated 7 July 2021 from Security Officer Skelton. 
  1. [68]
    The Respondent says that it was fair and reasonable for the decision-maker to determine that the Appellant was liable for discipline.
  1. [69]
    I have already noted that there are some errors in the way that the disciplinary grounds have been stated in the material. Section 187(1)(d) does not give rise to a finding of misconduct as it is defined in s 187(4)(a) of the Act.  If the decision-maker thought that the substantiated allegation regarding parking was of the level of seriousness that it warranted a finding of misconduct, the ground for discipline would be under s 187(1)(b) of the Act.
  1. [70]
    I have considered the disciplinary ground that the decision-maker determined should apply, that is, that the Appellant contravened, without reasonable excuse, a direction given to her as a public service employee by a responsible person.  With respect to the parking incident on 7 July 2021, the Appellant received a direction from Mr Skelton to move her vehicle.  While I find her actions upon receiving this direction were less than ideal, it is a matter of common ground between the parties that she moved her car and in doing so, followed the direction she had been given. 
  1. [71]
    It could be argued that the signage around the campus was a reasonable direction regarding where to park; or that the direction to move her car on 30 June was a reasonable direction to not park there on that day or at any time in the future; or that the conversation with Mr Kumar where he instructed the Appellant that she was not to park in unauthorised areas were 'directions' given to the Appellant by responsible persons.  However, it seems to me that on the day in question, the significant direction provided to the Appellant by a responsible person was to move her car.  Eventually, she moved it.
  1. [72]
    I do not think that in those circumstances, it was open to find that s 187(1)(d) was the appropriate ground of discipline.  When considering the grounds for discipline set out at s 187(1), I find that the more appropriate ground for discipline is s 187(1)(g) as the Appellant contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. This was one of the possible grounds for discipline set out on page two of the first show cause letter. 
  1. [73]
    The relevant standard of conduct applying to the Appellant is the Code of Conduct for the Queensland Public Service. In the first show cause letter, the Respondent identified Clause 1.5 of the code which provides as follows:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct ourselves in a professional manner; and demonstrate respect for all persons, whether fellow employees, client or members of the public.

We will:

  1. Treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.

…

c.  ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients.

  1. [74]
    It is clear that the Appellant was told not to park in the non-designated space in front of the building, blocking the footpath and the disability ramp.  The Appellant had been asked to move her car from that space on 30 June 2021. The space where the Appellant was parked on 7 July 2021 was in a similar location and had the capacity to impede the movement of emergency vehicles.  The Appellant had a responsibility to conduct herself in a manner that ensure 'the safety, health and welfare' of herself and others in the workplace, whether they were her colleagues, emergency vehicles/staff and/or patients or those visiting the campus.
  1. [75]
    A secondary issue relating to the incident but detailed in the particulars was the interaction between the Appellant and Mr Skelton in which she made a representation that she had permission to park on campus.  A review of the footage indicates that the Appellant did not treat her co-worker with courtesy and respect during that interaction. However, it is the act of parking her car in the non-designated area that that is the focus of the allegation and upon which I am basing my determination about the appeal.
  1. [76]
    Section 187(1)(g) requires consideration of whether the contravention was sufficiently serious to warrant disciplinary action and I will further discuss the seriousness of the contravention below in determining whether it was reasonable to impose a disciplinary reprimand. However, in circumstances where only a week prior to the events of 7 July 2021, the Appellant had been directed to move her car from where it was parked on the basis that it was impeding the footpath and the wheelchair access ramp and the night before, she had been advised that she was not to park in areas that were not designated for parking and she chose to park her car in an area in front of the building that was clearly not designated for parking and had the capacity to create a risk to safety, health and welfare, I find that the contravention was of a nature warranting disciplinary action.

Was it fair and reasonable to make a disciplinary decision imposing a reprimand on the Appellant?

Respondent's submissions

  1. [77]
    The Respondent submits that the substantiated allegation warrants the need to impose disciplinary action and the action imposed was appropriate and proportionate to the substantiated allegation.
  1. [78]
    The Respondent says that while the incident of 30 June 2021 does not form part of the allegation against the Appellant, it is relevant because it was considered by the decision-maker when deciding the appropriate disciplinary action to take in the circumstances.
  1. [79]
    The Respondent argues that the issuance of an infringement notice to the Appellant was insufficient to cause her to reconsider her actions in parking outside of designated spaces, or to convince her to only park in legitimate parking bays or designated parking areas.
  1. [80]
    The Respondent says that the Appellant's actions in continuing to park outside of designated parking bays and obstructing movement around the hospital displays a disregard for the health and safety of others, and a disregard for the instructions and direction that she had previously been issued about where to park her vehicle.
  1. [81]
    The Respondent says that parking in and around the PAH is in high demand, highly regulated, and subject to a systematic waitlist to ensure fairness to all employees of the PAH, however the Appellant, despite being warned not to do so, circumvented the parking rules and obstructed other vehicles.
  1. [82]
    The Respondent says that the Appellant knew what the relevant standard of conduct was, had previously been reminded about the relevant standard of conduct and that she breached the relevant standard of conduct.
  1. [83]
    The Respondent says it is important that, consistent with legislation, community standards and workplace expectations, Medical Officers maintain the highest standard of workplace conduct, including strict adherence with policy and procedure, and the respectful and dignified treatment of others.  The Appellant's conduct fell short of these expectations and the substantiated allegation warranted the need to impose disciplinary action.
  1. [84]
    The Respondent says that while the Appellant's conduct created a risk to the health and safety of others, was accompanied by unprofessional behaviour towards her MSHHS colleagues and was repeated, it is at the lower end of the scale of workplace misconduct.  The Respondent says that a reprimand is the least serious way listed in s 188 of the PS Act in which an employee can be disciplined.  Therefore, the disciplinary action was appropriate and proportionate to the substantiated behaviour and therefore should not be disturbed.

Appellant's submissions

  1. [85]
    The Appellant says that the 'sheer trauma and mental agony caused by such a laughably minor issue is unethical, demoralising and disappointing' and that there were alternative 'proactive, lenient and proportionate' avenues available to the decision-maker.
  1. [86]
    With regard to the matters the decision-maker said would be taken into account in determining what disciplinary action to impose, the Appellant says:
  • With regard to the seriousness of the substantiated allegation: on-campus parking is a relatively minor wrongdoing.
  • With regard to her classification level and/or expected level of awareness about her performance and conduct obligations: she was not aware of all of the specific rules of on-campus parking at PAH, which is why she sought direction from security personnel on the night of 6 July 2021 and she was provided with incorrect information from security and acted on these inaccurate directions.
  • With regard to extenuating or mitigating circumstances which applied to her actions: she has attempted to explain the context that led to these actions numerous times and in much detail.
  • With regard to her overall work record: she has a good standing with her colleagues, an immaculate professional/work record and no prior disciplinary action against her.
  • With regard to the degree of risk to the health and safety of staff, clients and members of the public: it has been falsely alleged that she parked outside the main entrance of building 07 and was therefore obstructing the ambulance bay.
  • In terms of the likely impact the disciplinary action will have on public and client confidence in Queensland Health and Metro South Health in its proportionality to the gravity of the disciplinary finding: the severity of the so-called 'misconduct', which is a parking issue, does not justify the gravity of the disciplinary action. 
  1. [87]
    The Appellant says that it was not reasonable for her to receive a formal reprimand in the situation.  She says that the summary of evidence relied on by the decision-maker 'consists of 2 emails containing circumstantial anecdotes, subjective narratives and unconfirmed conversational quotes', 'non-specific official documents' and finally '[body-worn camera] footage dated 7 July 2021'.  The Appellant says that this evidence does not represent or reflect an alleged pattern of behaviour or disregard for authority.
  1. [88]
    The Appellant says that the footage shows that she followed the security direction to move her car and that this is not substantive evidence showing that she 'contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person' sufficient to determine that she should receive a reprimand.
  1. [89]
    With regard to the 30 June 2021 parking incident, the Appellant says that she never received a hardcopy infringement notice on that day and the corroborating evidence that she parked there was her own self admission. The Appellant says that there was no signage and as she has seen numerous cars parked in that area at all hours, she thought it was allowed.  The Appellant says it was an honest mistake on her part and she is very sorry.
  1. [90]
    The Appellant says that the infringement notice dated 6 July 2021 provided to her as an attachment to the decision letter was a new piece of evidence and that she was not given an opportunity to respond to this evidence prior to the decision being imposed.  The Appellant has several concerns with the infringement notice including that she never received a hard copy of it.  The Appellant says that the copy she has been given is mostly illegible, the details of the infringement type are not shown, the number plate is not clear and there is no offence code.
  1. [91]
    The Appellant says that apart from her time-stamped call log and email to Mr Kumar, she has no other evidence.  However, the Appellant says that this is certainly what happened and that she never thought that 'this situation would spiral out of control like it has done and I was never given the impression that a formal complaint and disciplinary process would be actioned against me.'
  1. [92]
    The Appellant says that she has not repeated the parking offence again and that all that was needed was direction and advice on what was permissible and what was not.  The Appellant says that between 30 June 2021 and the first letter from the decision-maker received on 16 September 2021, not once was she contacted or followed up about the infringement notices. The Appellant says that the first time she has had them brought to her attention was at the time of receiving the decision and she finds this incredibly dubious.
  1. [93]
    The decision-maker alleges a pattern of behaviour and while the Appellant says she can see how they might see it this way, the parking incidents were two separate incidents, one of which she says was simply an honest mistake, and the other was a consequence of miscommunication.
  1. [94]
    The Appellant says that she understands that in establishing the context for making the decisions she made with regard to parking on campus, her submissions have been misconstrued as excuses and disregard for rules. The Appellant says that she was not trying to justify what she did but was establishing context as to why she did what she did. 
  1. [95]
    The Appellant says that any reasonable person would not consider a couple of parking incidents to be grounds for formal disciplinary action.  The Appellant submits that the unfair and unreasonably harsh decision has immensely outsized consequences for her, such as timely completion of specialty training, procuring Fellowship positions, future job applications, as well as impacts to her mental health and wellbeing. The Appellant says that the process has caused deleterious effects on her life and the decision to impose a formal reprimand will no doubt have many more.
  1. [96]
    With regard to the Appellant's assertions that she has not received procedural fairness or natural justice, the Respondent says that it has complied with the Public Service Commission Directive 14/20 (the Discipline Directive) in undertaking the disciplinary process subject of this appeal.
  1. [97]
    The Respondent says that before commencing the disciplinary process, in accordance with cl 5.2 of the Discipline Directive, the decision-maker determined that the conduct that formed the basis of the allegation was repeated, impacted negatively on others and on the workplace, and caused a risk to the health and safety of employees and other people.  In consideration of these factors, it was appropriate to commence a discipline process in relation to the Appellant's conduct.
  1. [98]
    With regard to the process, the Respondent says that it complied with cl 8 of the Discipline Directive and that the Appellant was provided with: written details of the allegation; the relevant particulars; evidence relied on in support of the allegation; and the proposed disciplinary ground.  The Appellant was invited to respond and her response was considered by the decision-maker.
  1. [99]
    The Respondent says that references by the Appellant to her requests for the body-worn camera footage were not relevant to the decision subject of this appeal as the requests were made following the conclusion of the disciplinary process.
  1. [100]
    The Respondent says that the Appellant was provided with the disciplinary finding and the reasons for the disciplinary finding.  The Appellant was invited to respond to the disciplinary ground and the proposed disciplinary action before any decisions were made about appropriate disciplinary action. The Appellant's submissions were genuinely considered before a final decision was made. Each time the Appellant requested an extension of time, this was granted.
  1. [101]
    The Respondent says that while the Appellant's conduct towards others does not form a central component of the allegation, she was provided with instructions as to how to arrange to view the footage of the interaction to assist her with drafting her responses to the show cause notice.
  1. [102]
    In her reply submissions, the Appellant points out several deficiencies concerning the road outside Building 7 that she says could lead 'any reasonable person to make a genuine, naïve misjudgement regarding parking in that area'.[7]  The Appellant says that if parking in the area truly causes harm to the health and safety of other persons, the Respondent should have taken a number of actions to address the issue.[8]
  1. [103]
    The Appellant provides multiple time stamped photos she has taken of other cars parked in non-designated areas and says that none of those vehicles were issued a 'tangible parking infringement notice'.[9]

Consideration

  1. [104]
    At first glance, one may question whether a parking infringement is sufficiently serious to give rise to a disciplinary finding and the disciplinary action of a reprimand.  However, I am satisfied that the context of the parking infringement and the facts in this matter were sufficiently serious that it was open to the decision-maker to impose a disciplinary reprimand.
  1. [105]
    I have considered the Appellant's submissions regarding procedural fairness.  The material provided to me shows that the Appellant has been provided with an opportunity to provide a response to both the allegation and the proposed disciplinary action.  I have read all of the material available to me, including the show cause letters and show cause responses.
  1. [106]
    The Appellant has sought to raise issues regarding the legality of the use of body-worn cameras by the Security Officers and that they did not produce identification to her.  This is not a matter I am going to address in this decision.  However, it seems that the general facts established by the body-worn camera footage are not in dispute. It is the interpretation of these facts and the different ways that the parties have characterised the interaction which gives rise to the dispute. The Appellant says that the Security Officers have breached their professional conduct.  If this has occurred, that is a matter for the Respondent to address.
  1. [107]
    Likewise, it appears that the Appellant has undertaken to gather evidence to place before me for the purposes of this appeal, including seeking out information about negative experiences other staff members have had with PAH Security.  In considering this appeal, I have had reference to the material available to the decision-maker when the decision was made.  I have not sought additional information be provided, nor have I requested reply submissions addressing that material.
  1. [108]
    The Appellant contends that there was material included with the Respondent's submissions that was not made available to her during the show cause process.  I have reviewed the material the Appellant refers to and I find that a) the material was not of a nature that served to significantly change the factual matrix surrounding the decision-making at the time and b) the Appellant has received the opportunity to address that material in her submissions to this appeal and I have taken her submissions into account. 
  1. [109]
    I do not know how or when the 30 June 2021 infringement notice was provided to the Appellant, but it is clear from the facts before me that the Appellant was well aware that she had parked in a prohibited area without authorisation on 30 June 2021.  The Appellant was asked to move her car on 30 June 2021 and the body-worn camera footage of 7 July 2021 includes discussion of that event.  I accept that on the balance of probabilities, late on 6 July 2021, Mr Kumar informed the Appellant that she was not to park in an unauthorised area and that doing so would result in an infringement notice. This is not a situation where the Appellant was unaware that she had done the wrong thing on 30 June 2021, making it unfair for her to be disciplined with regard to the 7 July 2021 incident.  Even if I accept that the Appellant did not receive the infringement notice on 30 June 2021, she was clearly on notice that she had done the wrong thing.  Yet, she repeated that behaviour one week later.
  1. [110]
    I do not accept that the Appellant did not know that she was not authorised to park on the PAH campus on 7 July 2021.  Had the Appellant been given authorisation to park on the campus on 7 July 2021, she would have been allocated a place to park and further investigations undertaken by the Security Officers would have resulted in permission being given and this matter would not currently be before me.  The fact that the Appellant was sitting in her car while parked in the unauthorised area, apparently on the phone to the Security Office, is further evidence that she had not been given authorisation to park on the campus that day.
  1. [111]
    I agree with the Appellant that she eventually followed the direction given to her to move her car. I have discussed this above and have substituted the disciplinary grounds to reflect that.
  1. [112]
    The Appellant says that it is unfair for the Respondent to expect her to be across the minutia of the PAH Parking Procedure and that it was never distributed during medical officer orientation or included in mandatory training from Human Resources.  I am not persuaded by the Appellant's submission that all that was needed was for her to be given clear instructions about where she could and could not park.  The Appellant was well aware that she did not have parking on campus and this is evidenced by her attempts to expedite the processing of her parking request.  The place where the Appellant was parked on 7 July 2021 is clearly not a place where parking is allowed and no reasonable employee or member of the public would have been mistaken about this. 
  1. [113]
    The Appellant submits that illegal parking on multiple occasions does not lead to a criminal record and in this case, Allegation One has led to a permanent disciplinary record.  A public service disciplinary record of a reprimand resulting from an incident arising from parking is quite different to a criminal record.  The Appellant has stated that she is very sorry for what occurred but has continued to blame others for her actions.  This was a persistent theme in the Appellant's show cause responses and it was open to the decision-maker to determine that the imposition of a disciplinary action was appropriate in circumstances where the Appellant had not appropriately recognised the impact of her actions and behaviour.
  1. [114]
    I understand that a disciplinary show cause process and the receipt of disciplinary findings or imposition of disciplinary action can be a difficult time for an employee.  However, I am unable to find that the Respondent has 'defied' the Human Rights Act 2019 by causing the Appellant what she describes as 'sheer mental agony and torture'.
  1. [115]
    I understand that the Appellant is unhappy with the decision to impose the disciplinary reprimand in circumstances where she says that the behaviour was of a minor nature and she believes the punishment is disproportionate to the substantiated allegation. However, a disciplinary reprimand is one of the most minor disciplinary actions available to the decision-maker and I find that it was reasonable for the decision-maker to impose this disciplinary action. 
  1. [116]
    I make the following orders:

Pursuant to s 562(C)(1) of the Industrial Relations Act 2016:

  1. (a)
    I return the matter to the decision-maker with a copy of this decision to reissue the disciplinary decision in accordance with the following specifications:
  1. (i)
    Allegation One remains substantiated but is adjusted to remove particulars (j), (k) and (l);
  1. (ii)
    All references to misconduct under s 187(4)(a) of the PS Act be removed;
  1. (iii)
    The ground for discipline arising from Allegation One is that Dr Dhanapathy contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action (section 187(1)(g) of the PS Act);
  1. (iv)
    The relevant standard of conduct is the Public Service Code of Conduct, specifically cl 1.5; and
  1. (v)
    The disciplinary action of a reprimand is confirmed.

Footnotes

[1] Directive 14/20: Discipline cl 8.5(d).

[2] Respondent's reply submissions filed 22 June 2022, Attachment 1 includes photographs of the signage.

[3] The footage was made available to me at my request and I have reviewed it.

[4] Appellant's submissions filed 12 April 2022, page 9.

[5] Appellant's submissions filed 12 April 2022, page 9.

[6] Respondent's submissions filed 2 March 2022, Attachment 6

[7] Appellant's submissions filed 12 April 2022, page 7.

[8] Ibid.

[9] Ibid.

Close

Editorial Notes

  • Published Case Name:

    Dhanapathy v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Dhanapathy v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 356

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    13 Sep 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Dhanapathy v State of Queensland (Queensland Health) [2023] QIRC 173 citations
1

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