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  4. Scott v State of Queensland (Queensland Health) - [2022] QIRC 488

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Scott v State of Queensland (Queensland Health)[2022] QIRC 488

Scott v State of Queensland (Queensland Health)[2022] QIRC 488

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Scott v State of Queensland (Queensland Health) [2022] QIRC 488

PARTIES: 

Scott, Robert Adam

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2021/63

PROCEEDING:

Application for reinstatement

DELIVERED ON:

16 December 2022

HEARING DATE:

16 to 19 May 2022

WRITTEN SUBMISSIONS:

Applicant's closing submissions filed 4 July 2022

Respondent's closing submissions filed 25 July 2022

Applicant's reply submissions filed 15 August 2022

MEMBER:

Pidgeon IC

HEARD AT:

Brisbane

ORDERS:

  1. The application is granted.
  1. That the Applicant be reinstated to his former position with the Respondent.
  1. The reinstatement is to be on the basis that the Applicant's continuity of service is maintained.
  1. The Respondent is to pay the Applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission. Any amount paid should take into account any income earned by the Applicant through employment he has undertaken during the relevant period.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – UNFAIR DISMISSALS – Application for reinstatement – Where the Applicant was terminated for breaching the Code of Conduct – Whether the dismissal could be considered harsh, unjust or unreasonable – Whether the allegation could be substantiated on the balance of probabilities – Whether the Applicant received procedural fairness – Whether the Applicant had been adequately warned by the Respondent that his employment may be terminated – Where the Applicant continued working for the Respondent following the incident – Whether the Applicant should be liable for discipline – Whether the disciplinary action taken was disproportionate to the alleged conduct – Personal and financial impact of termination on the Applicant – Where the Applicant has attempted to mitigate his loss – Whether the Applicant should be reinstated – Whether reinstatement is impracticable due to a breakdown of trust and confidence in the employment relationship – Order for reinstatement

LEGISLATION:

Commission Chief Executive Guideline 01/17: Discipline cl 15.5

Industrial Relations Act 2016 ss 316, 317, 320, 321, 322

Public Service Act 2008 ss 179A, 187, 188

CASES:

Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1

Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20

Briginshaw v Briginshaw [1938] HCA 34

Byrne v Australian Airlines Ltd (1995) 185 CLR 410

Francis Hughes v BlueScope Steel (AIS) Pty Ltd [2022] FWC 4

Gold Coast District Health Service v Walker (2001) 168 QGIG 258

Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969

Jones v Dunkel (1959) 101 CLR 298

Laegal v Scenic Rim Regional Council [2018] QIRC 136

Nathan Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services [2019] FWC 7875

Nesbit v MNHHS [2020] QIRC 066

Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter  [2014] FWCFB 7198

Nicolson v Heaven and Earth Gallery (1994) 57 IR 50

Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963

Stephen Grantham v NSW Trains [2021] FWC 5995

Thomson v Brisbane City Council [2021] QIRC 429

White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041

APPEARANCES:

Ms N A-Khavari of counsel, instructed by K&L Gates for the Applicant.

Ms A.C. Freeman of counsel, instructed by Crown Law for the Respondent.

Decision

Background

  1. [1]
    Dr Robert Scott (the Applicant) was employed by Wide Bay Hospital and Health Service (WBHHS) as a Senior Staff Specialist (Senior Medical Officer) in the Department of Emergency Medicine (DEM) at Bundaberg Hospital. He worked for the Respondent in a permanent, full-time capacity from December 2014 until his termination.
  1. [2]
    Prior to working at the Bundaberg Hospital from December 2014, Dr Scott had worked for Queensland Health as an emergency physician for over 25 years in various roles.
  1. [3]
    On 29 June 2021, Ms Debbie Carroll, Chief Executive of the WBHHS, wrote to the Applicant advising that his employment had been terminated pursuant to s 187(1)(g) of the Public Service Act 2008 (the PS Act). His dismissal was in relation to the substantiated allegation that he contravened, without reasonable excuse, a standard of conduct by behaving in an aggressive and threatening manner towards his colleagues Dr Sandra Rattenbury, Staff Specialist (Senior Medical Officer) and Ms Jenny Hinds, Clinical Nurse/Shift Co-ordinator in DEM, in front of other staff members and patients on 28 January 2021.
  1. [4]
    The dismissal followed a show cause process where Dr Scott was asked to respond to the allegation and the proposed disciplinary action of termination.
  1. [5]
    The Applicant contends that the termination was harsh, unjust and unreasonable pursuant to s 316 of the Industrial Relations Act 2016 (the IR Act) and filed an application for reinstatement with the Industrial Registry on 20 July 2021 in accordance with s 317.

Legislation and Directives

  1. [6]
    Section 320 of the IR Act sets out the matters to be considered by the Commission in hearing an application under s 317.

320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider–

  1. (a)
    whether the employee was notified of the reason for dismissal; and
  1. (b)
    whether the dismissal related to –
  1. (i)
    the operational requirements of the employer's undertaking, establishment or service; or
  1. (ii)
    the employee's conduct, capacity or performance; and
  1. (c)
    if the dismissal relates to the employee's conduct, capacity or performance –
  1. (i)
    whether the employee had been warned about the conduct, capacity or performance; or
  1. (ii)
    whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  1. (d)
    any other matters the commission considers relevant.
  1. [7]
    The words harsh, unjust or unreasonable are to be given their plain and ordinary meaning.[1]
  1. [8]
    The Applicant submits that as Dr Scott was dismissed under s 187(g) of the PS Act, the Respondent bears the onus of proof to establish, to the reasonable satisfaction of the Commission, that on the balance of probabilities, the employee was guilty of the conduct as alleged. The Applicant says that while this is a separate consideration to whether the dismissal was harsh, unjust or unreasonable, a dismissal not authorised by the PS Act can lead to a conclusion that the dismissal was unjust.[2]
  1. [9]
    The Applicant says that when considering 'harsh, unjust or unreasonable', the termination can be unjust if Dr Scott is not guilty of the conduct on which the Respondent acted, may be unreasonable because the Respondent decided upon inference which could not reasonably have been drawn from the material before the Respondent, and may be harsh in its consequences for the personal and economic situation of Dr Scott or because it is disproportionate to the gravity of the conduct in respect of which the Respondent acted.[3]
  1. [10]
    The onus is on the Applicant to demonstrate that the termination (for disciplinary reasons) was harsh, unjust or unreasonable.[4] 
  1. [11]
    The relevant parts of the PS Act are:

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. (g)
    contravened without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

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. [12]
    Commission Chief Executive Guideline 01/17: Discipline relevantly states:

15.5. Section 188 lists examples of disciplinary action that can be taken, however the decision maker is not limited to these examples. The following factors will be relevant considerations:

  1. (a)
    the seriousness of the disciplinary finding
  1. (b)
    the employee’s classification level and expected level of awareness about their performance or Code of Conduct obligations  
  1. (c)
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. (d)
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. (e)
    the employee’s explanation (if any)
  1. (f)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (g)
    the impact on the employee’s ability to perform the duties of their position
  1. (h)
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. (i)
    the impact a financial penalty may have on the employee
  1. (j)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (k)
    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. [13]
    Code of Conduct 'Principle 1: Integrity and impartiality' relevantly states:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

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

  • 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
  • ensure our conduct reflects our commitment to a workplace that is inclusive and free from harassment
  • ensure our fitness for duty, and the safety, health and welfare of ourselves and others in the workplace, whether co-workers or clients
  • ensure our private conduct maintains the integrity of the public service and ability to perform our duties
  • comply with legislative and/or policy obligations to report employee criminal charges and convictions.

 Dr Scott's Case

  1. [14]
    An outline of argument filed on 11 March 2022 sets out the following bases of Dr Scott's case:[5]
  1. (a)
    Dr Scott did not behave in an aggressive and threatening matter towards Dr Rattenbury and Ms Hinds as alleged, where there were: significant mitigating factors; procedural fairness defects; and Dr Scott has not contravened the Queensland Code of Conduct (paragraphs 38 to 42).
  1. (b)
    While Dr Scott was notified of the reason for his termination, he was not adequately warned about the conduct as: it was unreasonable to substantiate that there was "similar behaviour", or "a course of conduct"; and Dr Scott was never warned that further findings of certain conduct could result in the termination of his employment (paragraphs 43 and 44).
  1. (c)
    While there was a show cause process, it was inadequate or flawed where: Dr Scott was not advised of the relevant standard of conduct he was alleged to have contravened; there were insufficient particulars in relation to what constituted "threatening and aggressive" behaviour; and there were elements of predetermination by the Chief Executive (paragraph 45).
  1. (d)
    The termination was disproportionate to the gravity of the conduct, in light of Dr Scott's insight and remorse, length of service and significant experience, contribution to public service emergency medicine, and given the significant and potentially career ending impact of the termination (paragraph 46).
  1. (e)
    Further the perceived seriousness of the conduct and outcome is not reflected in the management of the allegation, where Dr Scott was not suspended and was not alleged to have engaged in misconduct (paragraph 46).
  1. (f)
    There were a number of significant and relevant mitigating factors that were not adequately considered or provided sufficient weight (paragraph 46).

Incidents of 28 January 2021

  1. [15]
    Submissions and an outline of argument made on behalf of Dr Scott set out the incidents of 28 January 2021 from his perspective. The evidence in chief for this matter was by way of affidavit with witnesses cross-examined before the Commission. In its outline of argument filed on 11 March 2022, Dr Scott's representative provides some background to the matter and then goes on to separately address the 'Dr Rattenbury Incident' and the 'Ms Hinds Incident'. The Applicant contends the following:
  1. Dr Scott's rostered shift on 27 January 2021 (12:30pm to 11:00pm) was very difficult in terms of patient management, with a full ED, where he had no rostered break, a ten-minute dinner break, and didn't finish until 11.45pm. He had two hours of sleep prior to commencing his shift at 12:30pm on 28 January 2021, where Dr Scott contemplated taking personal leave but was concerned about how this would impact patient care.[6]
  1. For Dr Scott's shift on 28 January 2021, he was the assigned Rapid Assessment Doctor (where the usual duties of the role involve seeing patients in acute area, not the waiting room), there was no handover, as the previous Consultant was dealing with emergent matters, where Dr Scott briefed himself in the Southern Fishbowl.[7]
  1. At approximately 1.30pm Dr Scott got up to walk out of the Southern Fish Bowl, but before getting to the end, Dr Rattenbury (seated at one of the computers), turned her head and said "can you go and RAT[8] the patients in the waiting room?" Dr Scott was of the view that this was a task she wasn't prepared to fulfil, where in his view as Team Leader she should have attended to this herself, where she was delegating it so she did not have to deal with it. Dr Scott turned around and said "no I fucking well won't", and suggested that she do it herself – comments that lasted around 30 seconds (Dr Rattenbury Incident). Dr Scott denies moving towards Dr Rattenbury, or physically standing over her (where he was standing when Dr Rattenbury commenced talking to him whilst seated), and recalls seeing Dr Rattenbury in the kitchen at around 3:00pm, watching television and laughing, and did not appear emotionally upset at that time.[9]
  1. Dr Scott spoke with Jennifer Hinds, Clinical Nurse, DEM and Nurse Team Leader in the ED, at around 2pm in the training rooms, and said words to the effect of "can you tell me what is happening with the beds" and "what are your nursing colleagues doing about the patient flow problem",  with the conversation being no longer than one minute (Ms Hinds Incident). Where Dr Scott admits speaking with urgency where his demeanour may have been impacted by his exchange with Dr Rattenbury, but denies raising his voice or putting his face close to Ms Hinds, where even Ms Hinds' own evidence does not allege that he put his face close.[10]
  1. Dr Scott apologised unreservedly for his statement to Ms Hinds, when meeting with Dr Terry George, Clinical Director, DEM, and Ms Hinds just after the comments were made, where by the end of the conversation Ms Hinds no longer appeared to be upset. During this meeting and for the remainder of Dr Scott's shift, he and Ms Hinds communicated in a professional way with each other.[11] Dr Scott also provided an unreserved apology to Dr Rattenbury, Ms Hinds, Dr George, Ms Ollis and Dr Beacom, the WBHHS and the Hospital in his show cause response letter to Debbie Carroll, Chief Executive, WBHHS, dated 19 February 2021.

Steps following the incident and show cause process

  1. [16]
    Dr Scott says there was no formal investigation in relation to the incidents.  Dr Scott was not suspended from his position at any time following the incidents until his termination. Dr Scott continued working in the Emergency Department, including as Team Leader, without incident until he was required to take sick leave due to overdue hip resurfacing surgery on 14 May 2021. During this time, he worked with Dr Rattenbury and Ms Hinds without issue.[12]
  1. [17]
    On 2 February 2021, Dr Scott received a letter from Ms Carroll, requesting him to show cause in relation to the allegation.
  1. [18]
    Dr Scott's representative points out that the first show cause letter includes the statement, 'Having considered the information currently available to me in respect of allegation one, I consider there are grounds for you to be disciplined pursuant to the Public Service Act 2008: Section 187(g).'[13]
  1. [19]
    As discussed above, Dr Scott provided his response to the show cause notice on 19 February 2021. On 17 March 2021, Dr Scott received the second show cause notice informing him that the allegation had been substantiated and that Ms Carroll was giving serious consideration to the termination of his employment. The second show cause letter included the following statement: 'I now have a loss of trust and confidence in your capacity to conduct yourself in accordance with the Code of Conduct for the Public Service, and the values and behaviours of WBHHS'.
  1. [20]
    Dr Scott responded to the second show cause notice on 7 April 2021.  On 26 March 2021, through his indemnity insurer, Dr Scott completed a Personalised Education Plan, focusing on appropriate communication and dealing with conflict.[14]

Previous non-disciplinary and disciplinary processes

  1. [21]
    The Applicant's outline of argument sets out non-disciplinary and disciplinary processes pertaining to Dr Scott's employment. 
  1. [22]
    Dr Scott received a non-disciplinary warning regarding two separate incidents on 22 February 2018 (warning in letter dated 1 November 2018) and 7 July 2018 (warning in letter dated 19 September 2018).  These incidents occurred some two-and-a-half to three years prior to the 28 January 2021 incident.
  1. [23]
    In or around February 2019, Dr Scott was the subject of an investigation and suspended until May 2019. While Dr Scott made certain admissions about comments he made, he denied and still denies being 'aggressive or intimidating' or making the other statements he is alleged to have made.[15]  For completeness, the investigation report is in evidence and I have reviewed it.  Of  23 allegations investigated, three were substantiated and one was partially substantiated. 
  1. [24]
    As a result of that process, Dr Scott received a reprimand, a Performance Improvement Plan (PIP) was implemented and Dr Scott engaged in an Ethics, Integrity and Accountability refresher.  Dr Scott had a PIP and supplementary PIP from 4 September 2019 and 29 January 2020 which were successfully completed without issue by May 2020.  Dr Scott received formal notification of completion on 29 July 2020.  Dr Scott says that the PIP included a recommended communication program that was not available to him, so he sourced his own course which he attended and paid for himself.[16]
  1. [25]
    On 19 March 2021, Dr Scott was alleged to have behaved unprofessionally in a phone call with a doctor from Gayndah Hospital, and after providing a response, Ms Carroll decided to accept Dr Scott's explanation but issued a 'reminder' in relation to the alleged behaviour.[17]

The conduct and the contravention

  1. [26]
    The Applicant submits that when having regard to all of the circumstances, the allegation cannot, on the balance of probabilities, be substantiated against him. The Applicant says that Dr Scott did not behave in an aggressive or threatening manner towards Dr Rattenbury and Ms Hinds in front of other staff members and patients on 28 January 2021 where:[18]
  1. (a)
    Ms Hinds' and Ms Suzanne Smith's original statements do not describe the Applicant's conduct toward Ms Hinds as aggressive or threatening only that the Applicant spoke to Ms Hinds 'in a raised voice', Ms Katrina Ollis's original statement provides 'yelled', however, she was not a direct witness to the incident;[19]
  1. (b)
    The Applicant's medical condition, namely tinnitus, impairs the Applicant's hearing and can prevent him from appreciating the level of his voice and, taking into consideration that the Emergency Department (where the conduct took place) is an inherently noisy environment;[20]
  1. (c)
    Dr Rattenbury alleges that: Dr Scott's behaviour was 'threatening physically' towards her, he 'stood over' her; and Dr Scott was 'red in the face', in circumstances where Dr Rattenbury was seated during the interaction, and Dr Scott has a naturally red skin tone, and denies standing over her;[21]
  1. (d)
    there was and is insufficient evidence from the witnesses, relied upon by the Respondent, to support the finding that patients heard or witnessed the conduct.
  1. [27]
    The Applicant points to significant mitigating factors which it claims were not adequately considered or provided appropriate weight by Ms Carroll:[22] 
  1. (a)
    the onerous nature of Dr Scott's prior shift and his consequent fatigue when presenting for his shift on 28 January 2021;
  1. (b)
    the manner in which Dr Rattenbury spoke to Dr Scott and gave to him a work direction, when regard is had to Dr Scott's previous experiences in his professional interactions with Dr Rattenbury in which Dr Rattenbury had displayed antagonism toward Dr Scott;
  1. (c)
    the emergent and stressful situation in the Emergency Department caused by a patient flow issue;
  1. (d)
    the impact of the Applicant's medical condition, tinnitus;
  1. (e)
    Dr Scott did not intend for Dr Rattenbury, Ms Hinds or any other staff or patients of WBHHS to feel threatened by this conduct;
  1. (f)
    on 28 January 2021, Dr Scott offered an immediate apology to Ms Hinds; and
  1. (g)
    Dr Scott's acknowledgement that his behaviour was inappropriate in his Show Cause Response.

Procedural fairness

  1. [28]
    Dr Scott contends that there were procedural fairness defects with the process leading to Ms Carroll making the finding that the allegation was substantiated. 

Notified of reason

  1. [29]
    Dr Scott says that he was notified of the reason for the termination.  However, Dr Scott says that he was not adequately warned about the conduct where:[23]
  1. (a)
    Reliance on 'similar behaviour' or prior warnings was and is unreasonable where:
  1. (i)
    the Non-Disciplinary Warnings were non-disciplinary in nature, occurred 2.5 to 3 years prior to the 28 January 2021 incident, and involved matters that were disputed by Dr Scott where appropriate explanations were provide by Dr Scott;
  1. (ii)
    the processes undertaken by the Respondent in substantiating that the 'similar behaviour' had occurred, in the context of the Reprimand and PIP were and are flawed;
  1. (iii)
    the factual context in which the 'similar behaviour' arose provided satisfactory explanations for the Applicant's behaviour;
  1. (b)
    it was unreasonable for the Respondent to conclude, as it did, that the Applicant had engaged in a 'course of conduct' which does not align to the Code of Conduct nor to the values and behaviours of the WBHHS…
  1. (c)
    at no time during the non-disciplinary warnings, the February 2019 investigation, the issuing of the Reprimand, or during the PIP/supplementary PIP, or the Reminder, or any time after that, was Dr Scott put on notice that any further findings of misconduct or similar conduct would result in the termination of his employment.

Opportunity to respond

  1. [30]
    Dr Scott acknowledges that there was a show cause process in relation to the allegation, but submits that it was inadequate or flawed as: the Respondent did not identify the 'relevant standard of conduct' of which it was said the conduct breached or how the conduct breached the Code; the show cause letters did not sufficiently particularise what aspects of the conduct the WBHHS was relying on to form the view that the Applicant behaved in an 'aggressive and threatening manner' towards Dr Rattenbury and Ms Hinds; and that Ms Carroll appears to have pre-determined the contravention of s 187(g) and the decision to terminate the employment where she reached the view that she had lost trust and confidence in Dr Scott's capacity to conduct himself in accordance with the Code of Conduct which goes to the heart of the employment relationship, where Dr Scott had yet to provide a response to the second show cause notice.

Other relevant matters

  1. [31]
    In submitting that the termination was harsh, unjust and unreasonable, in addition to the matters set out above, the Applicant submits that it is also relevant to consider:[24]
  1. (a)
    the termination of Dr Scott's employment was disproportionate to the gravity of the conduct, where there were alternative and more appropriate forms of disciplinary or management action available to the WBHHS, where the previous support through re-training or skill building in the PIPs and otherwise, was inadequate;
  1. (b)
    that in relation to the alleged seriousness and gravity of the conduct, Dr Scott was not asked to show cause in relation to misconduct under s 187(b) of the PS Act, nor suspended from his employment…
  1. (c)
    in the First Show Cause Response, dated 19 February 2021, Dr Scott offered a sincere and unreserved apology…
  1. (d)
    Dr Scott's outstanding clinical ability, length of public service and significant and notable contribution to WBHHS;
  1. (e)
    despite Dr Scott's serious health issues with his hip for the prior 12 to 18 months, the Applicant postponed surgery to support the WBHHS COVID-19 pandemic response and continue to work full-time, up to his surgery on 14 May 2021;
  1. (f)
    the insight and genuine remorse shown…
  1. (g)
    the Applicant's age, and the impact the termination will have in forcing the Applicant into a premature retirement…
  1. [32]
    Dr Scott says that the termination of his employment from the Hospital has the practical effect of barring him from employment at other Queensland Health Hospital and Health Services for the remainder of his working life. Dr Scott says that the termination will remain on his personal record and if asked, he is required to declare the disciplinary action taken against him, which will preclude him from future employment.[25]
  1. [33]
    Dr Scott says that there are no other public Emergency Departments within the regional locality of Bundaberg, and there a very limited opportunities for alternative work in the region for an Emergency Medicine physician in private practice.
  1. [34]
    Dr Scott says that he seeks to be reinstated to his position, that he believes he can learn from this matter, that he has undertaken additional training, and that he is willing to put the matter behind him. Dr Scott says that he can continue to have a professional working relationship with his previous colleagues and management. Dr Scott says that given his level of experience and training, he believes that reinstatement is a suitable and appropriate course of action.[26]

The Case for the Respondent

  1. [35]
    The Respondent opposes the application and contends that the termination of Dr Scott's employment was not unfair and was reasonable, just and proportionate to the circumstances and the nature of the conduct committed by Dr Scott.
  1. [36]
    The Respondent contends that the termination of the employment was not unfair because:
  1. (a)
    The Applicant's conduct the subject of the allegation is substantiated on the evidence;
  1. (b)
    The Applicant was afforded procedural fairness; and
  1. (c)
    The Applicant's dismissal was not disproportionate to the conduct so proved.
  1. [37]
    The Respondent sets out a different recollection of the incidents of 28 January 2021:
  1. The evidence before the Commission is that on 28 January 2021 at around 2pm, Dr Rattenbury, who was rostered as Team Leader for the Emergency Department on that day, asked the Applicant, who was also rostered to work in the ED, if he could assist with the Rapid Assessment Triage of patients in the waiting room. In response to this, the Applicant said "fuck" and shouted very loudly at Dr Rattenbury that he was not going to see any patients unless they had beds.  He then approached her in her chair and stood over her and shouted that she should go see management about the bed block, not him and asked why her board wasn't doing anything about the situation.  The Applicant was agitated and aggressive throughout the exchange.[27]
  1. Dr Rattenbury said words to the effect that she was not going to tolerate this behaviour from him anymore and it had to stop, and the Applicant stormed off.
  1. The incident was witnessed by other doctors and nurses in the vicinity. The incident was witnessed and heard by Ms Susan Hutchins, Senior Clinical Support Officer, who was about 10 metres away from the Applicant. Her evidence is that there were other employees, patients and visitors in the vicinity who also likely would have heard the incident.
  1. Ms Jenny Hinds, Clinical Nurse, who was also rostered to work in the ED that shift, witnessed the incident involving the Applicant and Dr Rattenbury and left the area to find Dr Michael who was in the training room, to assist. While she was speaking with Dr Michael about the situation, the Applicant entered the area and commenced yelling while looking at Ms Hinds. He demanded to know what had been done to fix the patient flow problem. This was also witnessed by Ms Suzanne Smith, Nurse Unit Manager.
  1. The Applicant left to go back to the ED and Ms Hinds, Dr Michael and Ms Smith followed. The Applicant stopped and turned around and said to Ms Hinds in a loud and aggressive way, 'what are you nurses doing about it, you think you run the place'.
  1. [38]
    The Respondent says that the Code of Conduct applies to all Queensland public service agency employees and anyone who works in any other capacity for a Queensland public service agency, which includes the WBHHS and the Applicant. Clause 1.5 of the Code of Conduct provides that employees have a responsibility to always conduct and present themselves in a professional manner and demonstrate respect for all persons, whether that be fellow employees, clients or members of the public.
  1. [39]
    The Respondent says that Dr Scott's initial show cause response dated 19 February 2021 did not deny the allegations; acknowledged that his behaviour towards other staff was inappropriate; appreciated that in light of his level of seniority and experience, he was expected to demonstrate a comprehensive understanding and appreciation for his professional obligations; and recognised that his conduct on 28 January 2021 was inconsistent with his professional obligations under the Code of Conduct as well as what is reasonably expected of a practitioner of his level of seniority and experience.[28]
  1. [40]
    The Respondent says that the conduct of Dr Scott on 28 January 2021 was not an isolated incident and occurred in the context of a series of similar incidents involving complaints by staff about Dr Scott's behaviour, conduct and communication in the workplace. Dr Scott had previously been the subject of formal and informal management action arising out of other incidents of unacceptable behaviour in the workplace, despite management action, there had not been any improvement in Dr Scott's conduct.[29]
  1. [41]
    With reference to the PIP in September 2019 through to May 2020, the Respondent says that Dr Scott was asked to focus on avoiding aggressive and loud disputes in public and staff areas and awareness of his own body language and communication style.
  1. [42]
    The Respondent says that as a result of Dr Scott's history, he had been put on notice numerous times prior to the incident on 28 January 2021 of the expectations that his employer had with respect to this conduct and his obligations under the Code of Conduct, including being directed to undertake refresher training in the Code of Conduct. The Respondent says that in the circumstances of this case, the Commission should conclude that Dr Scott engaged in the alleged conduct on 28 January 2021 and that it was in breach of the Code of Conduct, which was sufficiently serious in the light of his history, to warrant disciplinary action pursuant to section 187(1)(g) of the PS Act.

Work History and 'remedial actions' taken by WBHHS

  1. [43]
    Ms Carroll gave evidence about 'past remedial action' taken by WBHHS. By remedial action, Ms Carroll was referring to 'various actions undertaken since September 2018 in response to staff concerns and complaints about Dr Scott's body language, communication and presentation in the workplace'. Ms Carroll says that WBHHS had taken both disciplinary and non-disciplinary actions to 'explain to Dr Scott the high standards of workplace behaviour and personal conduct expected of all our staff and afford Dr Scott the opportunity to demonstrate that he could meet those standards'.[30]

Consideration

  1. [44]
    For the reasons which follow, I find that the decision to terminate Dr Scott's employment was unfair because it was harsh.  In coming to that decision, I have considered the following questions:
  • Did Dr Scott engage in the conduct alleged?
  • Did that conduct properly give rise to the relevant standard of conduct determined by the decision-maker?
  • Was the disciplinary action of termination of employment unfair?
  1. [45]
    I have also considered the matters set out in s 320 of the IR Act. At the hearing, Dr Scott acknowledged that he received correspondence informing him of the reasons for his dismissal and accepted that he was given opportunities to respond to the allegations regarding his conduct and that he was paid in lieu of notice. 
  1. [46]
    In accordance with s 320(d) of the IR Act, in determining if the dismissal was harsh, unjust or unreasonable, I must also have regard to any other matters I consider relevant. 

Did Dr Scott engage in the conduct alleged?

Evidence regarding events of 28 January 2021

  1. [47]
    Written submissions and the evidence presented at the hearing addressed the events of 28 January 2021, subject of the allegation.  I note that no investigation into the incident occurred, though I also note that where a decision-maker believes they have enough evidence before them to be satisfied a disciplinary process should commence, there is no particular requirement for an investigation. However, I note the submission of the Applicant that several witnesses involved in the incidents who are or were employees of the HHS were not called by the Respondent and that a Jones v Dunkel inference can and should be applied by the Commission.[31] 
  1. [48]
    Dr Scott worked a shift on the day prior to the events of 28 January 2021.  His recollection was that during that shift, the Emergency Department was very busy.  Arising from that shift, Dr Scott was frustrated about patients being seen in the corridor which is a non-clinical area.
  1. [49]
    Exhibit 2 is an email trail and includes an email sent to Dr Terry George from Dr Scott.  Relevantly, it was sent on Thursday 28 January 2021, the day of the events in question, and Dr Scott says it was written to provide feedback on the previous night's shift of 27 January 2021.  That email reads:

Hi Terry,

Despite feedback from me individually and group, medical staff still persist in using the corridor outside DRTRI to conduct, advise etc.

They do not seem to understand that:

This is not a clinical area and as a group we've decided not to put patients in non-clinical areas for good reason.

There is no confidentiality.

Reviews of cases from the US (current) leads me to conclude that this practice is likely to be medicolegally indefensible.

What worries me more is escalation to other corridors, and escalation of acuity.

Could you please advise all our staff not to do this.  I now seem to do it on every shift.

Regards,

Robert A Scott

…

  1. [50]
    Dr Scott was taken to another part of that email thread, where, about half an hour into his shift, Dr Scott wrote to his line manager, Dr George, and complained about availability of car parking. That email contained the following sentence: 'this year, Terry, I'm prepared to call BS[32] any time I see it or any time someone tries to get me involved in it'.[33]  Dr Scott disagreed that this demonstrated that he was already agitated by a number of issues early in his shift and said that he was not agitated but that some hours had passed since the previous shift and there were matters he wanted to raise with Dr George.[34]
  1. [51]
    Dr Scott's behaviour towards Dr Rattenbury occurred in response to what Dr Scott described as an abrupt instruction for him to RAT the patients in the waiting room.  Dr Scott disagreed that he was agitated by Dr Rattenbury's direction that he RAT the patients, rather he said, 'I wouldn't say I was agitated. I was sleep deprived. I was tired physically, psychologically…'.[35] I have no reason to doubt Dr Scott's evidence that he was exhausted from what he described as an extremely onerous shift on 27 January 2021.
  1. [52]
    I accept Ms Carroll's assessment that the delegation of the task to RAT the patients provided by Dr Rattenbury to Dr Scott in her role as Team Leader was not unreasonable.  However, Dr Scott's evidence was that he had already identified what he felt needed to be done and was on his way to do it. Dr Scott said that he was not agitated by Dr Rattenbury's request, but 'disappointed' by it.[36] Dr Scott said that he 'didn't really understand why she hadn't done it herself or was prepared to do it herself, as I usually did, under those circumstances when I was a team leader.'[37] Further, Dr Scott said  his experience had not involved the rapid assessment doctor undertaking a RAT of patients in the waiting room and that he was not aware of it ever happening on any shift he had worked and that he certainly had not done it himself.[38] Dr Scott said that at that stage the 'department and the hospital were blocked' and that 'when I came back on the floor, I picked up where I left off and I went to triage…'.[39] 
  1. [53]
    When asked whether by swearing at Dr Rattenbury and telling her to RAT the patients herself, he was not treating her with respect that day, Dr Scott answer that 'my view was that I was treating her probably with the same level of respect that she had shown to me and had shown to me in previous interactions throughout our acquaintance.'[40]
  1. [54]
    Ms Carroll agreed that her expectation that people work as a team would also involve colleagues extending professional courtesy to Dr Scott.[41] Ms Carroll appeared to understand that Dr Scott was of a view that Dr Rattenbury had given the direction to RAT the patients without making inquiry as to what he was doing or what his responsibilities were at the time.[42] Ms Carroll also seemed to be aware that Dr Rattenbury had already asked Ms Hinds to seek assistance with rapidly assessing and triaging the patients from Dr Michael prior to asking Dr Scott.  Ms Carroll agreed that Dr Rattenbury would have been aware of the number of patients in the waiting room since the beginning of her shift at 12.30 pm but said that Dr Rattenbury would have been undertaking tasks such as trying to discharge and move through patients.[43]

Dr Rattenbury's evidence about 28 January 2021

  1. [55]
    Dr Rattenbury's statement also indicates that prior to 28 January 2021, she had problems with Dr Scott's manner but that they shared a 'satisfactory working relationship'.[44] Dr Rattenbury agreed that Dr Scott kept to himself in terms of his professional engagement with her but said that she had 'the same working relationship with Dr Scott as I had with the other senior doctors'.[45] Dr Rattenbury agreed that Dr Scott is a highly experienced specialist in emergency medicine with over 30 years' experience.  Dr Rattenbury agreed that she respects Dr Scott as a peer and that he had worked in emergency medicine for considerably longer than she had. When asked if she agreed that Dr Scott had the capacity to work autonomously, Dr Rattenbury said that all emergency specialists work as a part of a team and that the level of autonomy has to be viewed within the work of the team.[46]
  1. [56]
    Dr Rattenbury agreed that when she was in the role of Team Leader during the shift on 28 January 2021, she was not working in a managerial or supervisory role with regard to Dr Scott. Dr Rattenbury said that both she and Dr Scott reported to Dr George. Dr Rattenbury denied that there was any agreement that patients would not be seen unless they had been allocated a bed. Dr Rattenbury agreed that there had been a discussion about the appropriateness or otherwise of seeing patients in the corridor or waiting rooms but said that there was no hard and fast rule about it.  Dr Rattenbury said that 'we had to do what we could do to make sure that patients were safe in our department' and said that all of the doctors held concerns about seeing patients in non-clinical areas but that as emergency medicine specialists, one of their main roles was to make sure patients were safe in the Department.[47]
  1. [57]
    Dr Rattenbury agreed that the Emergency Department was busy on 28 January 2021 but said that this was not unusual and that bed blocking occurred during the shift.[48] She had no recollection of beds being parked in corridors during the shift and could not recall if she had been rostered on the previous shift on 27 January 2021.[49]
  1. [58]
    Dr Rattenbury said that she started her shift at 12.30 pm and that she would have been provided with a handover from the person on the morning shift but she could not recall who that was.  Dr Rattenbury said that she did not recall what the situation in the waiting room was following handover and said that she recalled it was some hours after handover that she became aware that there were patients in the waiting room who may not be safe.[50]  Dr Rattenbury disagreed that there were 10 category 3 patients in the waiting room when she commenced at 12.30 pm.[51]  Further, Dr Rattenbury agreed that one option open to her was to RAT the patients herself but said that she was undertaking other tasks and identifying patients who would be a priority for her to assess.[52]  Dr Rattenbury said that she was not aware that when Dr Scott commenced his shift at 12.30 pm, he had conducted a review of the acute beds and whether anyone could be moved.[53]
  1. [59]
    Dr Rattenbury said that she was unaware that Dr Scott was sitting at the other end of the Fishbowl diagonally across from her. Dr Rattenbury said she did not know if she said hello to Dr Scott before asking him to RAT the patients but said that she did not make inquiry of him about what he was planning to do prior to asking him to RAT the patients.[54]
  1. [60]
    Dr Rattenbury agreed that there is nothing preventing the Team Leader from carrying out the RAT process themselves and said that she had done so many times and agreed that it is a fairly common practice 'when it's an appropriate use of time'.[55]
  1. [61]
    Dr Rattenbury said that she continued as Team Leader for the rest of her shift and recalled that she generally has dinner around 7:00 pm. Dr Rattenbury said that she may have made a cup of tea to take back to her workspace but that she could not imagine it would be the case that she was in the kitchen at around 3:00 pm watching television.[56]
  1. [62]
    Dr Rattenbury had no recollection of Dr Scott's duties on 28 January 2021. She said it was possible that Dr Scott was seeing patients in acute beds but that she did not observe him doing so. Dr Rattenbury agreed that the triage nurse has the capacity to identify if patients have deteriorated and then reclassify them accordingly.[57] Dr Rattenbury also agreed that rapidly assessing and triaging patients is only of assistance if there are actually beds within the Emergency Department available but said that a doctor would be able to assess which patients should be seen as soon as a bed is available and that this is not something a nurse can do.[58]
  1. [63]
    Dr Rattenbury could not recall if she asked Ms Hinds to locate Dr Michael to help with the patient flow issue prior to giving this task to Dr Scott.[59] Dr Rattenbury did not know why Dr Scott was in the Fishbowl but did not recall him being in it.  It was put to Dr Rattenbury that Dr Scott was leaving the Fishbowl to attend to other work when she turned and saw him and ask him to RAT the patients. Dr Rattenbury did not recall Dr Scott walking past her but said he was walking towards her and she did not know if he was exiting.  It was put to Dr Rattenbury that Dr Scott did not 'stand over' her and that he was walking past and being in a standing position while she was sitting, he would naturally have been close to her given the distance between the chairs. Dr Rattenbury said this was not what she had experienced.[60] Dr Rattenbury agreed that the exchange between herself and Dr Scott was short and that she had remained seated the whole time.[61]  Dr Rattenbury agreed that she did not stand up or ask Dr Scott to move during the exchange but said that she made a statement about his behaviour. Dr Rattenbury agreed that she did not cry during the exchange.[62]  Dr Rattenbury maintained that she felt threatened during the exchange.  She recalled discussing the matter later with Ms Ollis and Dr Rattenbury agreed that she did not cry or become teary eyed with Ms Ollis.[63]
  1. [64]
    I also note that under cross-examination, Ms Carroll's responses indicated that she had placed significant weight on the statement of Ms Ollis that Dr Rattenbury had been reduced to tears. As discussed above, Dr Rattenbury's own evidence at the hearing was that she was not reduced to tears and did not cry during or following the incident on 28 January 2021.  Dr Carroll also agreed that there had been other witnesses to the events who did not provide statements and were not interviewed.
  1. [65]
    Dr Scott agreed that the way he spoke to Dr Rattenbury was not in accordance with the Code of Conduct[64] but said:

I was under extreme duress due to the previous shift that I had worked. Basically insomnia because of the activities – activities on that shift which I'd done my best to overcome and had been unable to do it. And then I found myself unexpectedly having to step up into the same role again that I had already performed the previous night. I would contend that had I not been in those circumstances, it's unlikely that I would have sworn at Dr Rattenbury.[65]

Ms Hinds' evidence about the events of 28 January 2021

  1. [66]
    Ms Hinds agreed that she had worked with Dr Scott for about six years and said that she had a professional working relationship with him and had had robust conversations with him in regard to work matters.[66]  Ms Hinds was asked if there were occasions when Dr Scott made enquiries about the availability of beds and she responded with words to the effect of 'that's not my responsibility' or 'don't ask me about the beds. That's up to me'.  Ms Hinds said that such discussions 'would have been in different situations' and that there is a 'whole context'.  Ms Hinds described her role and agreed that it would not be unusual for her to have a robust discussion where she thinks it is necessary to make a comment of such a nature.[67]
  1. [67]
    Ms Hinds agreed that Dr Scott is a tall man with a larger build and that he is fair skinned and could have a naturally red complexion as a result.[68] Ms Hinds said that she had been aware for quite a few years that Dr Scott has the medical condition of tinnitus.[69]
  1. [68]
    Ms Hinds could not recall if she had worked on 27 January 2021.  She could not recall if on that night, there had been beds in corridors due to insufficient space but agreed that such a thing does happen.[70]  Ms Hinds recalled that on 28 January 2021, she started her shift at 7:00 am and that there were inpatients in the Department waiting to go to a ward area. Ms Hinds could not recall at what point in the day it occurred, but that by the time Dr Scott started at 12.30pm, the Emergency Department was full.  Ms Hinds recalled Ms Ollis attending the Emergency Department on 28 January 2021 and said that it was normal for Ms Ollis to attend on the Emergency Department to see what the patient flow was.[71]
  1. [69]
    Ms Hinds could not recall if Dr Scott had been in the Fishbowl prior to her observing him standing next to where the Team Leader (Dr Rattenbury) was.[72]  Ms Hinds recalled seeing the interaction between Dr Scott and Dr Rattenbury and maintained that it was of a threatening nature.[73]
  1. [70]
    With regard to the interaction between Dr Scott and herself, Ms Hinds said that Dr Scott's voice was raised but agreed that Dr Scott did not engage in any physically threatening behaviour in that circumstance.[74]  Ms Hinds said that she felt that Dr Scott's voice was raised and that he was looking directly at her but agreed that he did not make a direct criticism of her and that 'he just referred to the nurses'.[75]
  1. [71]
    Ms Hinds agreed that at no point during the exchange did Dr Scott put his face close to hers and agreed that she had never told Dr George that he did so. Ms Hinds said that during the exchange, she became very emotional but said that she did not cry and tried to remain professional.  Ms Hinds said that she had gone away to the nurses' unit and 'broke down' and was upset.  Ms Hinds said that later in Dr George's office, Dr Scott offered her an apology but when asked if the apology was sincere, she said she had heard such an apology multiple times before.[76] Ms Hinds agreed that after she left Dr George's office, she was going to move forward to have a professional relationship with Dr Scott and that she continued to work with Dr Scott for the rest of her shift.[77]
  1. [72]
    Dr George recalled the meeting with Dr Scott and Ms Hinds after the incident and said that he had no reason to suspect that Dr Scott's apology was insincere.[78] Dr George agreed that frustrations with the situation in the Emergency Department were warranted but said that this type of circumstance was something emergency physicians deal with all the time and that there are 'certain standards of behaviour that are expected of them'.[79]
  1. [73]
    Dr Scott agreed that he had not treated Ms Hinds with courtesy and respect.[80]  Dr Scott agreed that Ms Hinds told him that she had felt personally attacked and said that he apologised sincerely and unreservedly, 'even after – even after she had stuck her hand up in my face, which simply wasn't necessary, given the size of the room, and that everyone was sitting down'.[81]  Dr Scott was of the view that when he interacted with Ms Hinds in Dr George's office, he responded appropriately to what Ms Hinds had to say to him.[82]
  1. [74]
    I have reviewed the affidavits, statements made by email, "RiskMan" (Incident Management System) forms and the evidence provided at the hearing.  It is clear that there were two incidents on 28 January 2022, one involving Dr Rattenbury and one involving Ms Hinds.  Dr Scott does not deny that he spoke to both Dr Rattenbury and Ms Hinds and the evidence of all involved largely corroborates the content of the conversations.  However, Dr Scott denies that his behaviour was aggressive[83] or threatening, that he stood over Dr Rattenbury and that he spoke close to Ms Hinds' face.  Dr Scott maintains that he while he asked Ms Hinds what was happening with the beds and what her nursing colleagues were doing about the patient flow problem, he did not say words to the effect of 'you think you run the place'.
  1. [75]
    The single allegation addresses both the interaction with Dr Rattenbury and the interaction with Ms Hinds. It addresses two particular issues: one is that Dr Scott 'behaved in an aggressive and threatening manner' and the second is that this occurred 'in front of other staff members and patients'.
  1. [76]
    I have considered Dr Rattenbury's evidence in this matter and her written statement following the events of 28 January 2022.  Having seen pictures and having the layout of the Fishbowl where the interaction occurred explained to me, I do not accept on the balance of probabilities that Dr Scott 'stood over' Dr Rattenbury. Ms Hinds, who witnessed the event, says that Dr Scott was 'standing very close' to Dr Rattenbury.[84] Ms Hinds said that when someone is sitting down with a tall person standing over them, they would not feel comfortable and that she thought the behaviour was threatening.[85] Ms Hutchins described Dr Scott as 'standing over' Dr Rattenbury but also described Dr Rattenbury as sitting down.[86] Under cross-examination, Ms Hutchins explained where she was located prior to and after the part of the events she witnessed. Ms Hutchins confirmed that she did not speak to Dr Rattenbury following the events but that she could 'physically' see how Dr Rattenbury felt.[87] I find it likely that Dr Scott was standing near Dr Rattenbury and that due to his height and because Dr Rattenbury was sitting on a chair, Dr Rattenbury may have felt like Dr Scott was 'standing over' her, but I do not accept that this was as a result of Dr Scott deliberately doing so in order to threaten her.
  1. [77]
    Moreover, Dr Rattenbury described Dr Scott as being 'very red in the face'.  I have observed Dr Scott to be a person who I would describe as 'fair' and I understand the evidence of some witnesses to be that Dr Scott could sometimes have an appearance of being red in the face.  There was no expert evidence before me to link a person being red in the face with aggressive or threating behaviour. I further note that the events took place in the early to mid-afternoon in the middle of summer. I am not persuaded that Dr Scott's complexion during the events should be given any weight.
  1. [78]
    Additionally, Dr Rattenbury described the interaction as Dr Scott 'shouting at me and swearing',[88] says that she felt threatened, and claims that there was a potential that she could have been assaulted.[89] Furthermore, Ms Hutchins described Dr Scott's tone as 'threatening and attacking in nature' however, does not explain what was 'threatening' about the tone or speech.[90] It appears from the evidence that Dr Scott swore once and that the interaction was very short. 
  1. [79]
    I accept that Dr Scott either shouted or spoke in an elevated voice and that he said the word 'fucking'. As discussed above, I accept that as Dr Rattenbury was sitting down throughout the interaction, she may have felt as though Dr Scott was standing over her. While Dr Rattenbury believed there was a 'potential that I could have been assaulted', I am not persuaded on the balance of probabilities that Dr Scott's words or behaviour involved a threat of assault. Based on the content of what he said, that he was standing while Dr Rattenbury continued to sit and the witness evidence before me, I am unable to conclude on the balanced of probabilities that Dr Scott behaved in a 'threatening' manner.
  1. [80]
    Ms Carroll said that Ms Hinds' evidence had been that Dr Scott had a raised voice and was yelling.  It was put to Ms Carroll that Ms Hinds' statement did not describe Dr Scott's conduct as aggressive or threatening.  Ms Carroll replied that '…Yelling is not a normal pattern of speech. So that was certainly an aggressive speech, yeah'.[91]
  1. [81]
    Ms Smith recalled witnessing Dr Scott ask Ms Hinds, 'What are you nurses doing to fix this?' and said that Dr Scott was 'loud and yelling'. Ms Smith said that during that short interaction, she did not witness Dr Scott imposing a physical threat on Ms Hinds and that she could not recall Dr Scott putting his face close to Ms Hinds' face.  
  1. [82]
    Ms Carroll was asked if she took into account that Ms Hinds' statement made no mention of Dr Scott placing his face close to hers. Ms Carroll said that she had taken that from Dr George's account and said that she believed it to be a truthful account of the events that happened in his office. It was put to Ms Carroll that Ms Hinds' evidence at the hearing was that Dr Scott never put his face close to hers.  Ms Carroll said that she was not aware of that.  Ms Carroll appeared to rely on the contention that Ms Hinds had been upset and needed to remove herself from duty because of the interaction. It was put to Ms Carroll that there were inconsistencies in the statements of Ms Ollis and Ms Smith regarding what Ms Smith witnessed.  Ms Carroll said that she did not make enquiries in relation to this and appeared to say that she made her decision on the information before her.[92]
  1. [83]
    Ms Hinds explained the challenge the Emergency Department faced on 28 January 2021 and said the 'the ED was particularly busy and was experiencing patient workflow issues'.  Ms Hinds says that she and the ED staff were working very hard to deal with these issues.  Ms Hinds' evidence was that Dr Scott spoke to her in an aggressive way and said that the tone and volume of his speech is what made it aggressive.  Ms Hinds says that she was 'highly upset by the interaction' and that she was 'exhausted' and Dr Scott made her feel 'undervalued'.  Ms Hinds said that she had been 'working really hard to manage the patient flow situation' and that she felt 'personally attacked'.  Ms Hinds said, 'I felt threatened by Dr Scott's behaviour and considered it to be a personal attack'.  Ms Hinds' statement does not explain what it was in particular that made her feel threatened. Nurse Unit Manager Suzanne Smith described Dr Scott's voice as 'aggressive' and 'raised'.[93] Ms Hinds' contemporaneous statement and affidavit appear to make no mention of Dr Scott standing very close to her. However, Dr George recalls Nurse Hinds telling him that Dr Scott had placed his face close to hers.[94] While I accept that Ms Hinds was upset and felt personally attacked, and that Dr Scott spoke to her aggressively, I do not accept that Dr Scott threatened Ms Hinds.
  1. [84]
    Ms Carroll accepted that the interaction between Dr Scott and Ms Hinds had not occurred in a place where it could have been seen by patients.[95]
  1. [85]
    I understand Dr Scott's evidence to be that when he received the first show cause notice, he 'did not contemplate or have any idea that his employment was in jeopardy as a result of the Allegation'.[96]  Dr Scott says that while his behaviour on 28 January 2021 was inappropriate, and he thought disciplinary action may be taken against him, he did not consider termination was a likely outcome of the process and 'this state of mind influenced' his 'response in the First Show Cause Letter Response, where I wanted to convey my remorse for the situation and I did not consider it necessary to take significant issue with the particular details of the Allegation including the statement that I had behaved in a 'threatening' manner which I did not agree with'.[97]  While I accept that Dr Scott may have taken a different approach to responding to the allegation had he known termination was the likely outcome of the process, it remains the case that Dr Scott accepted that his behaviour was inappropriate. At the hearing, Dr Scott maintained his position that he had not behaved in a threatening manner and said:

…I never admitted threatening anybody because I never threatened anybody in my Department or outside of it and I have never made such an admission because I did not threaten anybody, on that day or any other day.[98]

  1. [86]
    Based on the material available to me, I am unable to establish on the balance of probabilities that Dr Scott 'stood over' Dr Rattenbury or that his conduct was of a threatening nature. Although it is certainly clear that the interaction may have been unpleasant and unsettling for Dr Rattenbury, Dr Rattenbury's evidence, supported by other witnesses, is that despite the interaction and its impact on her, she was able to continue working throughout the shift until it was time for her to go home.
  1. [87]
    I am likewise unable to establish on the balance of probabilities that Dr Scott moved himself close to Ms Hinds' face when speaking to her.  It is clear though that the nature of the comments made to Ms Hinds was certainly unpleasant and caused her to become upset.
  1. [88]
    When broken down to its various elements, the allegation suggests that Dr Scott's conduct was a) 'aggressive', b) 'threatening', and c) occurred 'in front of other staff members and patients'.  Further, the allegation is that the conduct occurred 'without reasonable excuse'.
  1. [89]
    The Macquarie Dictionary provides the following relevant definition of 'threat': 
  1. a declaration of an intention or determination to inflict punishment, pain or loss on someone in retaliation for, or conditionally upon, some action or course; menace.[99]
  1. [90]
    The following relevant definitions of 'threatening' are:
  1. to utter a threat against; menace…
  1. to be a menace or source of danger to.
  1. to offer (a punishment, injury, etc.) by way of a threat.[100]
  1. [91]
    As I understand the evidence, the substance of the words spoken to Dr Rattenbury was that Dr Scott did not intend to comply with her request and shared an opinion that the board of the WBHHS were not taking appropriate action with regard to the bed blocking issue. With regard to the interaction with Ms Hinds, Dr Scott asked a series of antagonistic questions in an unhelpful way, but I cannot identify a threat that was made to her.  For reasons I discuss below, I do not accept that Dr Scott was a 'menace or a source of danger' to either Dr Rattenbury or Ms Hinds.
  1. [92]
    When considering the evidence, I cannot identify Dr Scott uttering a threat against Dr Rattenbury or Ms Hinds or offering punishment or injury by way of a threat. On the basis of the evidence before me, I find there is enough information to establish that the language and tone used by Dr Scott toward Dr Rattenbury and Ms Hinds was 'aggressive', but I do not feel an actual persuasion or reasonable satisfaction that the conduct was threatening.[101]
  1. [93]
    Having heard a description of the areas in which the conduct occurred, I accept on the balance of probabilities that some patients are likely to have heard the interaction between Dr Scott and Dr Rattenbury but not the interaction between Dr Scott and Ms Hinds. Further, I accept that staff are likely to have heard the interaction between Dr Scott and Ms Hinds.
  1. [94]
    Dr Scott's show cause response acknowledged that his behaviour was impulsive and inappropriate. Dr Scott apologised for his behaviour. 
  1. [95]
    Having considered all of the material and the detailed show cause letters and responses, I accept that the allegation was partially capable of substantiation, with the exception of the elements alleging that the conduct was threatening and any conduct between Dr Scott and Ms Hinds being witnessed by patients. Even if the allegation did not include the element of the 'threatening' nature of the conduct, the conduct was aggressive and clearly inappropriate. Likewise, that the interaction between Dr Scott and Ms Hinds happened in a non-patient area does not negate that the conduct was aggressive and inappropriate. I do not consider that my finding that the conduct was not 'threatening' and was only partially capable of being heard by patients serves to undermine the allegation in its entirety. In any case, for the reasons given below, my finding that the dismissal was unfair is not made on the basis that the conduct has not been substantiated or that it does not give rise to a ground for discipline.
  1. [96]
    In the circumstances, I find that on the balance of probabilities, Dr Scott behaved in an aggressive manner towards his colleagues, Dr Rattenbury and Ms Hinds, in front of other staff members and patients (in the case of the interaction with Dr Rattenbury) and staff members only (in the case of Ms Hinds) on 28 January 2021.  In the circumstances, I find that it was appropriate for the Respondent to consider that this conduct was of a nature warranting application of the disciplinary process.

The substantiated allegation properly gave rise to grounds for discipline under s 187(g) of the PS Act

  1. [97]
    I understand that Dr Scott, by way of attempting to establish a reasonable excuse for the conduct, has offered some explanation for his demeanour and behaviour on that day and that he has unreservedly apologised for what occurred.  However, even in consideration of the extensive reasons put forward by Dr Scott in explaining his conduct, I accept that Dr Scott's conduct relating to those two incidents (noting that I do not accept that the conduct was threatening) was such that it represented a breach of the Code of Conduct.  In the circumstances, I find that it was also appropriate for the decision-maker to consider that the conduct gave rise to a ground for discipline.
  1. [98]
    However, I think it is important to note that there was no finding made that Dr Scott was guilty of 'misconduct' as it is defined in the PS Act. The authorities broadly refer to the 'misconduct' of the terminated employee, however this term refers to the conduct or behaviour which led to the dismissal rather than its use in the public service disciplinary context. 
  1. [99]
    The decision-maker, Ms Carroll, confirmed that while she found the conduct to be serious, she chose not to take the more serious step of asking Dr Scott to show cause regarding a disciplinary finding of misconduct: 'It's not as if he had impacted on patient care and outcomes or was, you know, drunk on duty or anything along those lines, but I still believe it's a very serious matter on the Code of Conduct'.[102]
  1. [100]
    Clause 1.5 of the Code of Conduct is set out above at [38].  I am satisfied that Dr Scott's behaviour toward Dr Rattenbury and Ms Hinds breached clause 1.5 of the Code.

Was the dismissal unfair?

  1. [101]
    In considering whether the dismissal was unfair I have referred to longstanding authorities addressing the words 'harsh, unjust or unreasonable'.  In Byrne v Australian Airlines Ltd,[103] McHugh and Gummow JJ said:

In Bostik (Australia) Pty Ltd v Gorgevski [No 1] (224), a decision of the Full Federal Court, Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

"These are ordinary non-technical words which were interceded to apply to an infinite variety of situations where employment is terminated. We do not think any redefinition or paraphrase of the expression is desirable. We agree with the learned trial judge's view that a court must decide whether the decision of the employer to dismiss was, viewed objectively, harsh, unjust or unreasonable. Relevant to this are the circumstances which led to the decision to dismiss and also the effect of the decision on the employee.  Any harsh effect on the individual employee is clearly relevant but of course, not conclusive.  Other matters have to be considered such as the gravity of the employee's misconduct."

  1. [102]
    McHugh and Gummow JJ also say:[104]

It may be that the termination is harsh but not unjust or unreasonable, unjust but not harsh or unreasonable, or unreasonable but not harsh or unjust. In many cases the concepts will overlap. Thus, the one termination of employment may be unjust because the employee was not guilty of the misconduct on which the employer acted, may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer, and may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.

  1. [103]
    Where the words 'harsh, unjust or unreasonable' carry no technical meaning and are to be considered in accordance with their ordinary meaning, in my view, at the heart of this matter is whether, taking into account all of the circumstances, the disciplinary action of termination was disproportionate to the gravity of the substantiated allegation and breach of the standard of conduct. Further to this, it is necessary to consider the consequences of the dismissal for the personal and economic situation of Dr Scott. For the reasons which follow, I have determined that the termination was unfair, in that it was harsh.

Circumstances surrounding the decision to terminate Dr Scott's employment

Dr Scott's employment history and the Performance Improvement Plan (PIP)

  1. [104]
    Ms Carroll's termination decision states that she took into account the 'seriousness of your repeated behaviour' and the genuine efforts to support the improvement of Dr Scott's behaviour'.  Ms Carroll says that it was made 'very clear to Dr Scott that WBHHS considered his past behaviour to be a serious departure from the Code of Conduct and the values and behaviours of WBHHS'.[105] Specifically, Ms Carroll referred to:
  1. by correspondence dated 19 September 2018, reminding Dr Scott to ensure his behaviour, conduct and communication is at all times appropriate and that he treat colleagues with respect and courtesy.  Dr Scott was directed to undertake a refresher in training with respect to the Code of Conduct for the Queensland Public Service.
  1. by correspondence dated 1 November 2018, reminding Dr Scott to ensure his professional behaviour and workplace conduct is appropriate in the future and complies with the Code of Conduct for the Queensland Public Service.  Dr Scott was requested to familiarise himself with his obligations with respect to the Code of Conduct for the Queensland Public Service.
  1. by correspondence issued and dated 4 July 2019 and 1 August 2019, again setting out the standards of behaviour expected pursuant to the Code of Conduct for the Queensland Public Service highlight a responsibility to always conduct oneself in a professional manner and demonstrate respect and courtesy to all co-workers, clients and members of the public, be appropriate in our relationships with them and recognise that others have the right to hold views which may differ from our own.
  1. by Dr Scott's PIP/IPAP document dated 4 September 2019, which outlined the requirement that he lead by example, be aware of his own body language and communication style, to maintain respectful communication with avoidance of belittling or derogatory comments and professional supervisor and trainee relationships.  Dr Scott was advised that changes to his behaviour were expected to commence immediately.
  1. by Dr Scott's PIP document dated 29 January 2020, which outlined the requirement that he avoid aggressive and loud disputes in public and staff areas, and to ensure he promoted positive patient care focused communication at all times with colleagues.
  1. at meetings with Dr Scott's line manager during the PIP/IPAP focusing on the topics outlined in the plan.
  1. by correspondence issued to Dr Scott dated 29 July 2020 reminding Dr Scott of the expectations with regards to his performance and behaviour.
  1. [105]
    At the hearing, Dr Scott was taken through a number of pieces of correspondence.  These items of correspondence related to occasions where Dr Scott had been asked to show cause regarding complaints or incidents involving his conduct and behaviour.[106] Dr Scott agreed that in a letter dated 19 September 2018, he was reminded of his obligations regarding workplace behaviour and conduct, his senior position within the health service, and told that Mr Wood considered the matter to be serious.[107]  Dr Scott agreed that he had understood that while the warning was not considered a disciplinary action, he knew that the warning could be taken into account if something like that had happened again.[108]
  1. [106]
    Dr Scott was taken to a letter written to him by Dr Adrian Pennington on 1 November 2018 regarding the outcome of a different complaint made against him.  Dr Scott agreed that in that letter, Dr Pennington warned him about ensuring that his behaviour and conduct in the future was compliant with the Code of Conduct and stated that while the warning was not considered disciplinary action, it would be taken into account if a further incident of the same nature occurred again.[109]
  1. [107]
    Dr Scott was also taken to a letter from Dr Pennington dated 2 May 2019 and agreed that it contained a reminder of Dr Scott's obligations under clause 1.5 of the Code of Conduct.[110]  Dr Scott was referred to a further letter from Dr Pennington dated 4 July 2019 which he agreed contained a reminder regarding appropriate conduct.[111]
  1. [108]
    Dr Scott agreed that on 8 August 2019, he received a letter from Ms Robin Bailey, Acting Chief Executive, informing him that the outcome of that process was a Reprimand.[112]
  1. [109]
    I have reviewed the letter of 28 August 2019 under the hand of Adrian Pennington where he informs Dr Scott that as well as the Reprimand issued on 1 August 2019, a PIP would be implemented. I have reviewed the allegations that were the basis of the reprimand and note that three of the allegations (two of which were substantiated and one partially substantiated) refer to interactions Dr Scott had within a one-hour period from 7.30 am to 8.30 am on 23 January 2019.  The fourth allegation related to an unknown date in late 2018 where Dr Scott was found to have yelled and been aggressive to a doctor in front of other staff.   The circumstances surrounding the allegations relating to 23 January 2019 as outlined in extracts of the investigation report were quoted by Mr Pennington in that letter:

… It is clear from the evidence, including that of Dr Scott, that there was an incident which occurred on the morning of the 23rd of January.  The evidence supports that the conduct of Dr Scott was inappropriate on that occasion and included him speaking loudly and using inappropriate language. 

It is acknowledged that there were events which contributed to Dr Scott being unhappy with the circumstances he found himself in that morning.  It is accepted that the SIMS training ran over time and that this meant that the handover was delayed.  It is also accepted that there were six patients waiting for assessment in the acute area.  Although it is accepted that this would be a stressful situation, it is not sufficiently outside the norm for an Emergency area to justify the conduct of Dr Scott.  Although he was annoyed, the evidence supports that he took that annoyance out on staff members during the handover and that is not acceptable workplace behaviour…[113]

Dr Scott admits he was upset that morning and had allowed his 'fear' of how the day would progress to get to him.  In this regard he was upset about the training course running over which declared the handover and also about the number of acute patients waiting to be seen (6). Therefore in such circumstances, it is not a long bow to draw to that he would have made a sarcastic comment regarding the delay…[114]

The evidence demonstrates that there was a discussion regarding the seeking of information outside of the Department regarding information about a toxin.  The evidence supports that the discussion was a heated discussion with Dr Scott demonstrating from, at least his tone, that he was unhappy that outside advice had been sought.

Dr Scott admits that he was not happy with seeking external advice and that this is an ongoing issue he raises with the junior doctors about using the resources available within the Department and making decisions based on that information.

It is highly likely in the circumstances described that Dr Scott's manner in delivering the message that he was not happy with the actions taken by Dr O'Sullivan was inappropriate.  However, the evidence is not consistent around the exact wording used and there is insufficient evidence to substantiate the Dr Scott used the words alleged.  However, there is sufficient evidence to substantiate an allegation that during the discussion Dr Scott had been aggressive towards Dr Allan (sic).[115]

  1. [110]
    Dr Scott agreed that he did not appeal the decision to implement a reprimand.  Dr Scott said that had the disciplinary action been more severe, he would have appealed it. He said that he sought an independent legal opinion as well as a legal opinion from Avant and that the advice provided to him was not to pursue an appeal against a reprimand.
  1. [111]
    Exhibit DC-06 is the Employment Relations Case Analysis (Case Analysis).  The Case Analysis sets out the complaints of Dr Rattenbury and Ms Hinds along with a summary of email statements of Ms Ollis and Ms Hutchins.  Under the heading 'Items of Note' the Case Analysis says:

Dr Scott's history of performance, conduct and behaviour concerns:

  • 12/07/2018 – Complaint received from Jenny Viteli. Outcome: Please Explain, non-disciplinary warning, refresher of the Training in Ethics, Integrity and Accountability.
  • 24/07/2018 – Complaint received by Dr Sebastian Rubensxtein-Dunlop. Outcome: Show Cause given to Dr Scott for issues in the Emergency department and Non-Disciplinary warning issued.
  • January 2019 – Multiple complaints received regarding Dr Robert Scott. External Investigation Undertaken Suspended during External Investigation process. Returned at the conclusion of the External Investigation. Outcome: Show Cause given to Dr Scott for issues pertaining to his behaviour and conduct within the workplace. Reprimand provided. PIP implemented.
  • 4 September 2019 – PIP Implemented. Topics: behaviour, conduct, communication, management of stress, refresh understanding in ethics, integrity and accountability. Outcome: PIP ceased May 2020. Closure letter sent highlighting issues raised and addressed throughout PIP.

…

This incident is of a similar nature to prior serious behavioural issues which are repeated, ongoing and not improving. 

…

  1. [112]
    Dr Scott's response stated that the reprimand issued to him was made 'in reliance on findings in an investigation that was fundamental (sic) flawed'. The Case Analysis provided to Ms Carroll addresses this point and says that it was open to Dr Scott to appeal against this decision at the time and he did not do so.  The advice to Ms Carroll accepts that the PIP was resolved but points to correspondence dated 29 July 2020 addressing 'a number of matters required addressing within the PIP' and states that 'Dr Scott has been afforded with sufficient time and remedial action to remedy his behaviour within the workplace'. 
  1. [113]
    With regard to Dr Scott's submission in the show cause process that he has been suffering with work stress since 2019 and the WBHHS has not taken any steps to support him to manage this, the Case Analysis states: 'Dr Scott has access to EAP, his line manager for support and the PIP was a supportive framework with regular feedback and support provided, noting managing stress was also a concern raised'.
  1. [114]
    Later, the Case Analysis further addresses Dr Scott's 'roster pattern argument' and Dr Scott's access to leave.  The Case Analysis says that Dr Scott had a period of six days off before returning to work on Wednesday 27 January and that (despite Dr Scott's report of having little sleep following the 27 January shift) 'fatigue is unlikely to be a valid argument to justify his conduct on Thursday 28 January 2021'. The Case Analysis further points out that Dr Scott accessed 230 hours of leave in 2020 and notes that he also participated in 100 hours professional development.
  1. [115]
    With regard to Dr Scott's concern that the show cause notice stated that Ms Carroll had lost trust and confidence in his capacity to conduct himself in accordance with the Code of Conduct for the Public Service and the values and behaviours of the WBHHS, and that it was inappropriate for her to be the decision-maker in respect of the process, the Case Analysis says that such a determination was 'fair and reasonable in the circumstances given the allegation had been substantiated and does not evidence a predetermined decision to terminate Dr Scott's employment'.
  1. [116]
    I have considered the disciplinary and non-disciplinary history of Dr Scott set out in the material and the evidence of various witnesses.  While there have been instances of inappropriate behaviour or interactions between Dr Scott and his colleagues, I am not satisfied that the conduct of 28 January 2021 was part of an 'ongoing pattern' of behaviour. I accept the Applicant's submission that the previous instances of which had led to intervention were 'brief, discrete and isolated incidents...'.[116] The previous matters which had been raised with Dr Scott in either a disciplinary or non-disciplinary way were dealt with either by way of corrective measures or investigation which found many allegations unsubstantiated and appear to have been dealt with appropriately with all parties moving on.  I understand that it must have been frustrating and disappointing to Dr George to need to intervene following Dr Scott's conduct on 28 January 2021 when similar matters had been subject of the PIP and subsequent PIP, however, I consider that the PIP had been completed some months before the events of 28 January 2021 with no 'ongoing' behaviour dealt with in the intervening period.
  1. [117]
    Dr Scott was asked about the PIP during the hearing. Dr Scott agreed that the PIP included areas identified for improvement such as: leading by example; complying with mandatory training; maintaining professional supervisor and training relationships; and adhering to policies in relation to the management of registrars.  Dr Scott agreed that he received a letter from Mr Wood on 29 July 2020 informing him that the PIP had been finalised and also that there had been some further alleged inappropriate conduct during the PIP.  Dr Scott agreed that as at the end of July 2020, he was aware of his employer's expectation that he would treat others with courtesy and respect, no matter how stressed or frustrated he may feel on a shift.[117]
  1. [118]
    Dr George was responsible for managing Dr Scott's PIP under the direction of management.[118]  He said that initially the meetings were planned to occur monthly but that human resources later provided advice recommending the meetings occur weekly or fortnightly.  Dr George's evidence was that, in part, the PIP involved Dr Scott getting up to date on mandatory training and Dr Scott sitting with Dr George and going through the ACEN policy for management of registrars in difficulty.[119] Dr George agreed that a communication course had been suggested but was unavailable and said he could not recall another course being recommended instead.  Dr George agreed that part of the PIP was about 'management of stress'. Dr George said that stress was 'covered within the 360 feedback'.  Dr George said the purpose of this was to 'raise his awareness of perspectives of his colleagues and his ability to manage stressful situations' and that this had been raised in the feedback and so was provided to Dr Scott. Dr George said that Dr Scott 'disagreed' with the feedback and that there was no further training in relation to stress.[120]
  1. [119]
    Dr George said that he based his approach to managing the PIP on adult learning principles and that he made judgments about what approach was likely to work with Dr Scott.  Dr George agreed that he had met with Dr Scott on seven occasions in relation to the PIP. Dr George agreed that the PIP meetings occurred in his office and he documented what was discussed but that the process did not have the level of formality of a show cause process.  Dr George agreed that the final meeting for the PIP was on 6 May 2020 and that Dr Scott was sent formal notification that the PIP was complete towards the end of July 2020.  Dr George agreed that he was notified on 7 May 2020 about an alleged incident involving Dr Scott and a junior doctor and said it was correct that neither he nor the WBHHS raised the matter with Dr Scott.  Dr George agreed that two other matters he referred to in his affidavit regarding Tracey Moore and Jenny Hinds were not dealt with through a formal process enabling Dr Scott to respond to the complaints or allegations made.
  1. [120]
    With regard to the course on communication that Dr Scott had undertaken, Dr Scott said that he arranged that training for himself.  The hospital had given him a contact email address and he was told that the course was no longer being made available and that he would be contacted when it was available.  Dr Scott said that several weeks went by and it was getting closer to the date by which the PIP was to be completed and so he explored his 'college website' and sourced what he felt was an appropriate course and paid for it and undertook it himself.[121]  I also note that beyond the 360 degree feedback, Dr Scott was not provided with any specific training or support regarding stress management.
  1. [121]
    I am unable to identify an occasion following the PIP and Reprimand and prior to the 28 January 2021 incident where Dr Scott was told that his future conduct could lead to his termination of employment or the implementation of disciplinary action of a more serious nature than a reprimand.  While it could be argued that any breach of the Code of Conduct could lead to disciplinary action, and that one action open to a decision-maker is termination of employment, it is certainly not the case that Dr Scott was 'on notice' that termination may be considered should his conduct escalate on an occasion in the future.

The working environment at the Bundaberg Hospital at the time of the incidents

  1. [122]
    While the allegation is specific to 28 January 2021, the Respondent relies on the history of Dr Scott's employment.  I agree with Dr Scott's representative that it is important to consider the surrounding circumstances of practising emergency medicine in the public health system in Bundaberg.[122]
  1. [123]
    It was put to Dr Scott that he was continuing to justify his behaviour by saying he was tired.  Dr Scott replied, '…I was asked to previously to provide mitigation for what I said and did. And that is what I have tried to do and I'm trying to do today. Furthermore, I would have to say that working in the Emergency Department in Bundaberg Hospital is a unique experience.  I've never quite experienced anything like it.'[123]
  1. [124]
    In re-examination, Dr Scott was asked what he meant when he said that working at Bundaberg Hospital was a 'unique experience':

…I don't think I've ever worked in any facility previously where the focus has been so much on the daily achievement of performance targets, no matter what and, occasionally, pursuing those targets leave you in a position where you have to go against some of the principles of practice of emergency medicine.  If I use the  evening of the 27th as an example, after hours, the Emergency Department is very much left to its own devices. If we can't get people out of the department, we can't get people in and this has become a more frequent occurrence in Bundaberg since 2017/2018 and the department becomes palpably unsafe for staff and for patients.  If one accepts that one of the functions of an Emergency Department is to provide trauma care and major incident care, when a department is full, when the facility is full and nobody is going anywhere, a multi-trauma or major incident then becomes almost impossible to manage and, of course, by the very definition of those incidents, any of those incidents can occur at any time and prior to my suspension I had raised these issues of significance with senior management, I had invited them physically to come to the department and I had pointed out to them, in no uncertain terms, on two occasions, that I felt that the department was unsafe and that we – I – we, my colleagues in the Emergency Department needed help, needed assistance, to keep the department functional, to keep the hospital open.  And I didn't want to find myself in this situation but I looked around and found that I was the most experienced person there on the floor available at the time. I felt I had to take that significant action and I'm afraid it didn't go down well.

  1. [125]
    Dr Rattenbury said that the Bundaberg Emergency Department was no different from any other emergency department she has worked in internationally.[124] Dr Rattenbury agreed that it can be an intense and physically, mentally and emotionally demanding environment but said that this is what people are trained for and it is no different from anywhere else.[125] Dr Rattenbury agreed that the work can be physically, mentally and emotionally exhausting but said that 'that's what rostering and fatigue management strategies are designed to mitigate'.[126] Dr Rattenbury disagreed that at Bundaberg Hospital there is a constant and ongoing focus on patient flow but agreed that there can be quite significant issues at times because of patient flow and that there can be a situation where the Emergency Department.[127] Dr Rattenbury agreed that issues with patient flow can result in patients in the waiting room or the Emergency Department having nowhere to go and agreed that these can be particularly stressful and demanding times for emergency physicians.[128]
  1. [126]
    Dr Rattenbury agreed that the Emergency Department can be noisy. She said that the staffing in the Bundaberg Emergency Department meets the recommendations of the College for Emergency Medicine. Dr Rattenbury described the rostering pattern and said that a standard shift is ten hours long and that doctors on the on-call roster could be called at various times during the night.[129]
  1. [127]
    Dr Rattenbury agreed that bed availability is a constant issue in the Bundaberg Hospital and that blocked patient outflow is a significant issue. Dr Rattenbury disagreed that the problem was financial and said it was an issue pertaining to the number of beds. Dr Rattenbury was aware that money was made available to purchase private beds at the Mater Private Hospital in Bundaberg and agreed that this had occurred in direct response to the significant issues going on in the Bundaberg Hospital with regard to bed blocking and that it had helped 'a little bit'.[130]
  1. [128]
    Ms Hinds described the nature of working in the Bundaberg Emergency Department and said it has slowly evolved to a point where it is quite chaotic and very busy all the time.[131] Ms Hinds said that there are multiple people coming in requiring services and that there are bed blocks, so there is 'no flowthrough for the patients to be seen in a timely manner' and 'emergencies presenting with no notice – that's people in life-threatening situations'.[132] Ms Hinds agreed that it can be a stressful and difficult environment to work in and that it can be physically, mentally and emotionally demanding.[133] Ms Hinds agreed that the issue of bed blocking created a situation of high stress and that it had been like that for some time. Ms Hinds said that the situation had 'gotten worse'.[134]
  1. [129]
    Ms Hinds agreed that 28 January 2021 was a very busy day. Ms Hinds says that she works 12 hour shifts and agreed that she gets tired and that the Bundaberg Hospital cannot divert patients to another Emergency Department.[135]
  1. [130]
    Ms Smith recalled working on 27 and  28 January 2021 and was asked if there were very difficult circumstances in the Emergency Department.  Ms Smith said that 'most days are difficult circumstances at the moment' and recalled the 28th being busy but could not recall the 27th.[136]  Ms Smith said that the Emergency Department is usually congested and that on 28 January 2021, there were patient flow issues.[137]
  1. [131]
    Ms Smith recalled that on 28 January 2021, Dr Beacom and Ms Ollis attended the Emergency Department in the morning due to patient flow issues and to check on the status of the Emergency Department and that this would normally have occurred around 10:00 am.[138]
  1. [132]
    Dr George said that in the time since he commenced as Director of Emergency Medicine at Bundaberg Hospital in 2015, the overwhelming change from an emergency physician's point of view is that there 'has been progress in terms of increased activity and crowding in that time'.[139]  Dr George agreed that the Emergency Department had become much busier.  He said '…there are a lot of patients staying in the Emergency Department awaiting admission to an inpatient area…'.[140]  In answer to a question about bed block or 'access block', Dr George gave evidence that as time had progressed, 'the expectations and targets of what's reasonable has stretched, and so we're seeing increasing percentages of patients who will be admitted to hospital that spend more than eight hours in the Emergency Department'.[141] 
  1. [133]
    Dr George agreed that the work in the Emergency Department can be intense and demanding and that on days where there is bed blocking and patient flow issues, this places additional stress and is tiring.
  1. [134]
    Dr George agreed that Dr Scott is a highly experienced specialist in emergency medicine.  When asked if Dr Scott has a capacity to work in a very autonomous way, Dr George agreed and said that emergency physicians need to exercise judgment as to the way they work, but that they also have to work in a team environment.[142]  Dr George agreed that Dr Scott has often worked in the Team Leader position and said that while there are some senior medical officers who do not work in the overall Team Leader position, 'the majority do and 'certainly all of the Fellows of the Australasian College of Emergency Medicine work as team leaders'.[143]
  1. [135]
    With regard to the Team Leader position, Dr George said that there is no clear definition of managing or supervising but that the Team Leader does request or direct other senior medical staff to perform a certain function that is within the normal range of activities that a Team Leader would perform.  Dr George said that it is 'not that they have a dictatorial right to direct their senior colleagues to act in a people way' and that '…they're senior people that usually – invariably – work it out between them as to what's the most sensible – best way to move forward'.[144]
  1. [136]
    Dr George agreed that he was aware of examples where Dr Scott had concerns or an unwillingness to consult with patients who had not be allocated to a bed and may require to be seen in a waiting room, in the ambulance ramp or in a corridor.  He also said that he was aware that Dr Scott had raised concerns about patients being parked or located in corridors.[145]
  1. [137]
    Dr George did not agree that there was an unwritten agreement between senior medical officers that patients would not be seen in non-clinical areas.  Dr George said that while it is 'not ideal' for patients to receive treatment in non-clinical areas, not all senior medical officers agreed that they would not treat patients there.  Dr George agreed that there are issues such as confidentiality and medico-legal issues which may arise if people are not in adequate spaces to be treated and said that it was agreed that it is suboptimal to treat patients in non-clinical areas for that reason, but 'it's different to saying that we wouldn't treat them if they needed to be treated'.[146]
  1. [138]
    Dr George was taken to the email Dr Scott had sent him on 28 January 2021 raising concerns about the use of the corridor outside the doctor's triage room for consultations.[147] Dr George agreed that in that email, Dr Scott raised a number of concerns about patients being placed in non-clinical areas.  Dr George agreed that he had replied to Dr Scott and said that he would raise it at the Senior Medical Officers' meeting and that he said that it was important that there being consistent messaging about the issue.  Dr George was asked about the part of his reply where he said, 'But while we could demand sufficient space to not need to do this, how realistic is that?'. Dr George said:

even if Bob's point of view was accepted by the majority or by everybody in the group, it would then leave us in a situation of, "Well, where do we place these people?" So it's not a unidimensional decision, we need to come up with a better solution, and the reality of the workplace made me feel that we would have to come up with a realistic solution that wasn't obvious…

  1. [139]
    Further, Dr George said '…as I said earlier…there was an agreement that placing patients into some areas is suboptimal, however, there isn't universal agreement that we won't treat patients who have to be put there'.[148]
  1. [140]
    Dr George agreed that Dr Scott is a tall man with fair skin and said that he frequently has a red appearance. Dr George said that he was now aware that Dr Scott has tinnitus.[149]  Dr George agreed that tinnitus can impact on the capacity of someone to hear, particularly in busy or noisy environments.[150]
  1. [141]
    Dr George agreed that in the time since the events of 28 January 2021, additional beds have been purchased at the Mater Private Hospital in Bundaberg to be made available for the referral of emergency patients.[151] Dr George agreed that this step was taken due to bed blocking or bed shortage issues and said that while it has not cured the problem, the problem would be a lot worse if such steps were not taken.[152] 
  1. [142]
    Dr George agreed that it is not unusual for the Team Leader to carry out the RAT process in the waiting room themselves if necessary.[153]  Dr George went on to say that while it is possible for the Team Leader to undertake the RAT process, it is a case of the Team Leader needing to make a judgment based on the situation at the time as to what is the best way for them to provide care, or what other activities need to be done.[154]
  1. [143]
    Dr George recalled a discussion with Dr Scott subsequent to the interactions with Dr Rattenbury and Ms Hinds where Dr Scott had told him that he was annoyed by what he felt was Dr Rattenbury directing him rather than asking him to do something and that he felt it was inappropriate.  Dr George agreed that in that discussion, Dr Scott had expressed to him that he did not feel he was able to practice safely in the waiting room and that Dr Scott was upset that the Emergency Department had been allowed to reach its current state. Dr George further agreed that Dr Scott had complained that he did not believe management was providing the support that was required to stop the Emergency Department from deteriorating to that extent.[155]
  1. [144]
    Dr George said that he could understand Dr Scott's frustration and that he would 'love management to be able to solve it and prevent it and fix it, and there are times where there's frustrating that those things aren't happening' but that he thinks that Dr Scott has a higher degree of dissatisfaction with management's efforts than Dr George does.[156]
  1. [145]
    Ms Ollis agreed that the Bundaberg Emergency Department can be quite an intense and demanding place to work and that it is at times physically, mentally and emotionally exhausting.[157] Ms Ollis said that 'bed blocking' has become more of a consistent issue in the last one to two years but that there has always been periods of time where the Department is faced with a challenging demand.[158] Ms Ollis agreed that ambulance ramping is a flow on effect from bed blocking.[159]
  1. [146]
    Ms Ollis said that the ambulance ramping and bed blocking which occurred on 28 January 2021 was similar to the challenges which had been faced by the Emergency Department for some months prior.[160] Ms Ollis said that on 28 January 2021, she attended on the Emergency Department in her role because Dr Beacom, Director of Medical Services was contacted by a doctor from the Emergency Department and he asked to attend the Department with her to assess the situation.[161]  Ms Ollis agreed that the fact that there was an escalation to Mr Beacom and herself was reflective of the significant issues being faced by the Emergency Department on that day.[162]
  1. [147]
    Ms Ollis agreed that at some point, Bundaberg Hospital was able to acquire 10 beds at the Mater Private Hospital to assist with patient flow issues. 
  1. [148]
    Ms Carroll said that there are periods where there is significant clinical activity in Emergency Departments and times where they are not as busy.  Ms Carroll was asked if there were times when staff can be physically, mentally and emotionally exhausted by the work required in busier times and replied, in part, 'I think with skills and training it's how we deal with those situations when it is busy'.[163]
  1. [149]
    Ms Carroll agreed that there are a significant number of times in recent years where the Emergency Department has been full and said that there are periods of time where patient flow is affected when there are difficulties with accessing beds.[164] Ms Carroll also agreed that there are times where there are ambulances on the ramp.[165]
  1. [150]
    Ms Carroll said that the Emergency Department would 'rarely have patients in the corridors' and that 'we do try and avoid putting patients into corridors, but we will place patients into fast track and other areas, and put patients on beds in the fast track area, so using those other areas'.  Ms Carroll said that on the evening of 27 January 2021, the Emergency Department was busy. She did not know that there were patients in the corridors but she knew that there were patients on the ramp.[166]
  1. [151]
    Ms Carroll said that there had been a decline in the wait time of seeing patients within the triage categories and that the emergency length of stay time frame had deteriorated.[167]
  1. [152]
    Ms Carroll described the impact of COVID on the Emergency Department and said that the flow of the Department had to be redesigned and '…we had to create warm zones and hot zones to stream COVID patients so that we weren't mixing potential patients that would have COVID or actual COVID…'.[168]
  1. [153]
    Ms Carroll explained that the health service was provided with funding to utilise the private sector beds at both the Mater and the Friendly Society Private Hospital Bundaberg ('Friendlies').  She said that it has assisted with patient flow and that it can involve up to 14 to 16 patients in either facility. Ms Carroll said that the number of beds is flexible.[169]
  1. [154]
    I accept that Ms Carroll has an expectation of Dr Scott that as a Senior Medical Officer, he would escalate his frustrations appropriately and demonstrate leadership.  Dr Scott's capacity to do this is evidenced in the email trail at Exhibit 2.
  1. [155]
    Throughout the hearing, the evidence made clear that the Bundaberg Hospital Emergency Department was experiencing a shortage of beds and staff and that bed blocking was  a common occurrence. Dr Scott reported experiencing some fatigue as a result of his previous shift and experiencing stress. I note that another contributing factor to the situation was the strained resources available to staff in the DEM, including Dr Scott.
  1. [156]
    Dr Scott was questioned about the fatigue he reported experiencing on 28 January 2021.  Dr Scott agreed that he had a 13-hour break between shifts between finishing at 11.45pm on 27 January 2021 and commencing worked at 12.30pm the following day. Dr Scott agreed that the 'shift pattern' was not the reason he had only slept for two hours the previous night.  Dr Scott agreed that prior to 27 January 2021, he had had six days off and that this was the usual roster pattern at the time.[170]
  2. [157]
    Dr Scott agreed that he has an obligation to ensure that when he shows up for work, he is fit for duty and that if fatigued, he should report that to his line manager.  However, Dr Scott said that this rarely happens in the Emergency Department, especially with respect to senior staff.  Dr Scott agreed that he did not report fatigue issues to Dr George on 28 January 2019.[171]
  1. [158]
    For completeness, I note that the issue of Dr Scott's medical condition of tinnitus was raised in his second show cause response and Dr Scott agreed that was the first time it was raised with respect to the allegations.  Dr Scott said that he believed that Dr George was aware of his tinnitus and that there were several members of staff in emergency who were aware of the condition. Dr Scott agreed that he had never mentioned tinnitus impacting on his communication style or body language during the PIP and said that he has never sought support from his employer to manage the condition in the workplace and that he tries to manage it himself on a day-to-day basis.[172] 
  1. [159]
    Dr Scott was asked about a matter that was raised with him by Ms Carroll subsequent to the events of 28 January 2019.  Ms Carroll asked Dr Scott to show cause regarding an allegation that he had behaved in an unprofessional manner toward a colleague during a telephone call on 16 March 2021.  In his response to that allegation, Dr Scott raised, among other things, his tinnitus and explained that the condition can result in him speaking in a raised voice. For completeness, that disciplinary allegation which appears to have been put to Dr Scott prior to any local fact-finding to determine the circumstances surrounding the events complained of, was not taken any further and Dr Scott's explanation was accepted by Ms Carroll.
  1. [160]
    While the matter of Dr Scott's tinnitus was mentioned on a range of occasions by various witnesses, in circumstances where I am unaware of what Dr Scott's normal vocal volume was in the busy Emergency Department, I find myself unable to determine whether Dr Scott's yelling or raised voice on 28 January 2021 can be attributed to the tinnitus.
  1. [161]
    I have already determined that Dr Scott spoke to Dr Rattenbury and Ms Hinds in an aggressive and inappropriate manner without reasonable excuse in breach of the Code of Conduct.  The discussion of the circumstances facing the Emergency Department and the workplace context on and around 28 January 2021 is not aimed at excusing the behaviour. Rather, the relevance of the information about the working environment at the Bundaberg Emergency Department around the time of the incident which led to Dr Scott's dismissal is that I find it adds to the harshness of the decision to terminate Dr Scott.  The evidence clearly establishes that the Emergency Department was experiencing significant challenges at this time and it seems to me that any reasonable person would accept that Dr Scott was experiencing frustration and stress as a result of the ramping, bed flow and bed blocking issues as well as the requirement to work in ways that were not 'best practice'. 
  1. [162]
    I have no reason to doubt Dr Scott's evidence that he made an active decision to postpone his hip surgery so that he may be available to work in the context of the COVID-19 pandemic.  I also note that on 28 January 2021, Dr Scott made a choice to attend work despite his lack of sleep because he was concerned about staffing. As it turns out, one of Dr Scott's colleagues was absent for that shift due to sickness and the issues in the Emergency Department may have been exacerbated had he determined to not attend the shift.
  1. [163]
    I am left with the impression that Dr Scott is a very dedicated emergency specialist who has demonstrably made decisions at various times to put his work ahead of his personal health. I understand the argument of the Respondent that it was Dr Scott's responsibility to ensure his fitness for work, however there is no evidence before me that Dr Scott believed that he was so fatigued as to be unfit for work. I also accept the Applicant's submission that, like the treatment of patients in non-clinical areas, reporting fatigue and showing up fit for duty is 'suboptimal but realistic'.[173]  Dr Scott may well have been on some non-rostered days in the lead up to returning to work on 27 January 2021, but this does not mean that it was unreasonable for him to feel frustration or stress on his return to work.  Likewise, that Dr Scott's lack of sleep was not as a result of the roster does not mean that he was not suffering from fatigue.
  1. [164]
    Dr Scott's evidence was that he was aware of his employer's expectation regarding communication with co-workers and that the employer took this seriously, however he said that it 'wasn't uppermost in my mind during the course of those events'.[174] Dr Scott agreed that he had been warned about his behaviour towards other staff members; and had undertaken refresher training on his obligations; had undertaken a course on communication and undertaken a PIP where a focus was on appropriate communications with co-workers. When asked whether despite this, he had continued to behave inappropriately, Dr Scott said '…again, I would suggest to you that the events of the previous night and what myself and other staff members had had to endure made a significant contribution to that.'[175]

Termination was harsh given the broader issues facing the Emergency Department at the time of the conduct

  1. [165]
    The substantiated conduct was not acceptable, but I find that termination is a harsh outcome given the broader issues facing the Emergency Department at that time.  These issues were clearly not only impacting Dr Scott.  I do not think it was fair to terminate Dr Scott's employment on the basis of an allegation regarding two events which happened in quick succession on a day when it is acknowledged there were difficulties being experienced in the Emergency Department and where Dr Scott has explained that he was working with little sleep and was experiencing frustration at Dr Rattenbury's direction to him, the requirement to treat patients in non-clinical areas, and the serious bed flow issues being experienced on the day of the events in question.

Termination was disproportionate when Dr Scott was not suspended and continued working for several months following the events of 28 January

  1. [166]
    Dr Scott's conduct on 28 January was not found to be misconduct under the PS Act.  In fact, Dr Scott was not suspended from duty, continued working throughout the rest of the shift and continued working in the Emergency Department, seemingly without incident, until his commencement of leave to have surgery and the subsequent date of  termination.
  1. [167]
    The Case Analysis considered by Ms Carroll in making her decision to terminate Dr Scott contains a section titled 'Consideration of Alternative Work Arrangements'. This section states that options were put to the Chief Executive regarding Alternative Duties/Redeployment and Suspension and that the Chief Executive had made the decision that these options were 'not required at this time'.
  1. [168]
    Dr Rattenbury agreed Dr Scott continued to be rostered and worked in the Emergency Department until May 2021. She agreed that there were no further incidents between herself and Dr Scott and that during this period of time, the two doctors worked professionally together, including when Dr Scott was working regularly as Team Leader.[176]
  1. [169]
    Ms Hinds recalled that Dr Scott continued working after 28 January 2021 and that it was possible that he regularly worked as Team Leader after that and that if he was, they would have needed to work together professionally. Ms Hinds did not recall there being any incidents with Dr Scott in terms of their professional relationship following the events of 28 January 2021.[177]
  1. [170]
    Dr George said that on the day of the incident and in the months following, Dr Scott, Dr Rattenbury and Ms Hinds all continued to work together in a professional manner without incident. Dr George recollected that Dr Scott continued to work in the Emergency Department, including in the Team Leader role, after the incident and in the months after until he took a period of sick leave to have hip surgery in around May 2021.  Dr George recalled that Dr Scott had told him that he had delayed his surgery due as he wanted to be of assistance for the COVID-19 pandemic.[178]
  1. [171]
    Ms Carroll said that the allegations or incident of 28 January 2022 regarding Dr Scott were escalated to her shortly after the incident on the day that it occurred.[179] Ms Carroll said that the incident disrupted the Emergency Department.[180] Ms Carroll agreed that Dr Scott was not suspended at that time or assigned to alternative duties.[181]  Ms Carroll said that in determining not to suspend Dr Scott, she took into account that Dr Rattenbury and Ms Hinds were very senior staff members and she believed that they had the capacity to escalate concerns or seek assistance in the event that there were 'any reprisals or any ongoing issues'.[182]
  1. [172]
    Ms Carroll was asked if she had made an assessment that Dr Scott did not pose a health and safety risk. Ms Carroll said that she considered that matter and the well-being of staff and that while there was 'a potential in that space', she was comfortable that there were 'systems around to support staff and escalate if there was any further issues along those lines'.[183]
  1. [173]
    Ms Carroll agreed that Dr Scott continued to work in the Emergency Department up to May of 2021 when he took a period of sick leave and that there were no further instances of any sort of inappropriate conduct by Dr Scott with Ms Hinds or Dr Rattenbury.[184]
  1. [174]
    The Applicant submits that Dr Rattenbury and Dr Scott continued to work together in the weeks and months following 28 January 2021 and that between the commencement of the disciplinary process on 19 February 2021 until 11 May 2021, Dr Scott 'continued to work in the ED as normal, working with Dr Rattenbury and Ms Hinds in a collegiate and professional manner without issue'.[185] It also appears that the WBHSS had requisite confidence in Dr Scott to roster him in the Team Leader rotation as usual, including during a period in mid-March 2021 when he was assigned to be Team Leader for five out of seven rostered days, when ordinarily this would be two to three out of the seven rostered days.[186]
  1. [175]
    I agree with the Applicant's submission that 'it is highly irregular for a public service employee to have their employment terminated where the conduct is not considered to be of a nature that the "proper and efficient management of the department might be prejudiced"',[187] which is the standard required to suspend a public service employee under s 137 of the PS Act.
  1. [176]
    The Case Analysis provided to Dr Carroll sets out a range of considerations regarding the proposed penalty of termination.  Of note are the following regarding 'Seriousness of substantiated allegation': 'Historically, staff have highlighted concern with submitting complaints for the perception that no action is taken, performance is not managed, and for fear of reprisal'; 'Impact on staff – Workcover claims, absences, motivation and engagement, well-being'; and 'Workplace conflict, including personality clashes, bullying and conflict between supervisors/managers can be harmful'. These matters are again listed under the heading 'degree of risk to the health and safety of staff and patients' where there is also a finding by the author that 'the subject officer appears to have anger/and or frustration and struggles to appropriately manage situations when DEM is busy'. I do not have enough evidence before me to determine whether Dr Scott had a proper opportunity to consider the matters listed or whether there were steps taken to seek further information from Dr Scott regarding his experience of stress and its impact on his work at busy times.  Likewise, I have no evidence before me to demonstrate what action, if any, was taken with regard to the 'bundle of documents containing file notes or complaints'[188] which Ms Carroll says she did not rely upon in making the decision but which she believes confirm that she made the right decision and that reinstatement would cause 'significant difficulties for staff'.[189]
  1. [177]
    Taking into account all of the circumstances, I do not accept that Dr Scott posed or poses an unacceptable risk to the health and safety of his colleagues. Dr Scott was not suspended following the conduct and the Respondent was content for Dr Scott to continue working in the weeks and months after the incident and this serves to undermine any claim that termination was the only option available on the grounds of the health and safety of colleagues.

Termination was a disproportionate action where Dr Scott has unreservedly apologised and undertaken relevant education and training

  1. [178]
    I accept that on the date of the events, the Emergency Department was an operationally difficult environment at a particularly difficult time. I understand that this had the potential to impact all members of the Emergency team, including Dr Scott.  I accept that Dr Scott's conduct impacted his colleagues and, potentially patients or members of the public.  However, I am unconvinced that Dr Scott's behaviour in the circumstances was such that it would undermine public confidence in the Emergency Department and could not have been remedied by his sincere apology to those involved and the implementation of some other type of discipline or management action.
  1. [179]
    Dr Scott's show cause response was summarised by Ms Carroll in the termination letter. Relevantly, Ms Carroll notes the following:
  • You acknowledge your behaviour on 28 January 2021 towards other staff members was inappropriate.[190]
  • You generally appreciate the gravity of the circumstances and acknowledge the potential disciplinary action the Hospital is considering imposing on you.[191]
  • You further appreciate that in light of your seniority and experience you are expected to demonstrate a comprehensive understanding and appreciation of your professional obligations.[192]
  • You describe your behaviour on 28 January 2021 as most regrettable and inappropriate.[193]
  • You appreciate that some of the persons affected by your conduct described your behaviour as threatening.  You wish to make it very clear that you did not intend anyone to feel this way and that you did and have not ever threatened anyone.[194]
  • You have reflected on your conduct and realised it was impulsive. You acknowledge that you should have exercised better awareness of your professional obligations and the impact that your conduct may have on others.[195]
  • Although you do not wish to seek or justify or excuse your conduct you would like to note that your behaviour was a misplaced expression of your frustration at the situation and the potential impact on patient care.[196]
  • You recognise your conduct on 28 January 2021 was inconsistent with your professional obligations under the Code as well as what is reasonably expected of a practitioner of your level of seniority and experience.[197]
  • To demonstrate your remorse for your conduct and your appreciation of its gravity you have since revisited your professional obligations under the Code, and would like to offer your sincere unreserved apologies to the Hospital, the Emergency Department, Dr Rattenbury, Sister Hinds, Dr George, Ms Ollis and Dr Beacom.[198]
  1. [180]
    Given the evidence before the Commission about the circumstances and context in the Emergency Department on and around 28 January 2021 and the previous shift Dr Scott worked on 27 January 2021, I find that the apology, reflection and remorse set out in Dr Scott's second show cause response should have been given greater weight by Ms Carroll in making her final determination regarding disciplinary action.[199]

Termination was a disproportionate disciplinary action where there were other options available and where Dr Scott was not adequately warned that further instances of such conduct could result in termination of employment

  1. [181]
    With reference to the Discipline Directive, the Respondent says that Ms Carroll determined that given the history of the matter and the work that had been done over a period of three years to 'deal with this behaviour', there was no other real option other than to seriously consider termination of employment and that it was a reasonable and proportionate response in the context of the history.[200]  It seems to me that if Ms Carroll reached the point where she believed that all avenues had been exhausted and the next disciplinary action to be implemented would be termination, it was open to her to issue Dr Scott with some other form of discipline and a final warning. Particularly in circumstances where, as discussed above, Dr Scott had continued working in the Department following the events subject of the discipline process.
  1. [182]
    The Case Analysis relies on a finding that the 'behaviour is significant, serious and repetitive'. The final part of the Case Analysis refers to 'Risk Considerations for Disciplinary Penalty'.  The Case Analysis rejects the outcome of a reprimand on the grounds that past action has not resulted in 'a lasting effect on the subject officer'. All other disciplinary outcomes listed are accompanied by advice that the 'risk to staff safety remains…'.
  1. [183]
    In the decision letter, Ms Carroll states that the behaviour on 28 January 2021 was 'not an aberration of an isolated incident' and says that the conduct is 'very concerning to me when viewed in the context of the previous complaints about your professional conduct.'  Ms Carroll states that WBHHS 'have previously taken a lenient approach by taking management action to focus on appropriate behaviour, conduct, communication and management of stress'.  Ms Carroll also goes on to say that 'in the previous processes, it was made very clear to you that any further issues would be managed as deemed necessary' and that 'in July 2020 you were provided with formal correspondence reminding you to ensure that your conduct in the future aligns to the Code of Conduct…'.
  1. [184]
    Ms Carroll agreed that the previous actions taken, both disciplinary and non-disciplinary, did not place Dr Scott on notice that if he engaged in further conduct, his employment may be terminated.  Ms Carroll said that Dr Scott was informed that previous matters may be taken into account in decision-making in the event of further conduct, but said 'it didn't state termination'.[201]
  1. [185]
    Dr Scott submits that he was not on notice or in any way warned that a further finding against him could result in termination of employment.[202] 
  1. [186]
    It appears that in the mind of the decision-maker, Dr Scott was on a final warning, but that this was not communicated to Dr Scott.  The problem with taking a 'lenient approach' over a period of time is that it can make a final determination to escalate to the most serious of 'approaches', being termination, harsh.  The result of the 'lenient approach' is that the Respondent failed to demonstrate to Dr Scott the apparent serious nature of the previous conduct and did not put Dr Scott on notice that further interactions of an aggressive nature would lead to termination.
  1. [187]
    The Respondent directs me to the matter of Nathan Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services ('Hill v Cobham'),[203] where an employee was dismissed for telling a work colleague, when asked to perform a task, 'fucking do it yourself. I'm not fucking doing it'.  In dismissing the application for reinstatement, Deputy President Anderson stated that '…unacceptable workplace conduct, even when occasional, if repeated and not remediated can warrant disciplinary sanction including dismissal, depending on the circumstances.'[204]  The Deputy President also concluded that '…Mr Hill had, at the time of dismissal, received relevant and current formal warnings as well as counselling form his immediate manager as well as performance reviews that raised concerns with his manner of interaction with staff'.[205]
  1. [188]
    I have considered Hill v Cobham. In that matter, at disciplinary meetings post the conduct subject of the allegation Mr Hill displayed aggression and swore during the meeting where the allegation was put to him, the meeting had to be suspended and a security officer was arranged to be present for the rescheduled meeting. In the letter of dismissal, Mr Hill's conduct during the disciplinary meetings and his lack of remorse were also listed as reasons for his termination.  This is not the case in Dr Scott's situation. There is no evidence before me that Dr Scott's conduct throughout the disciplinary process was anything but respectful.  Post the conduct on 28 January 2021, Dr Scott continued to work without issue.  Dr Scott, while understandably taking steps to explain his conduct and argue against dismissal, has expressed remorse.
  1. [189]
    Further, in Hill v Cobham, Mr Hill's conduct was found to be misconduct under the company's Code of Conduct.  As is discussed above, Ms Carroll determined that Dr Scott's conduct was not such that it was misconduct under the PS Act. In Hill v Cobam, Deputy President Anderson found that there was a sound, defensible and well-founded reason for dismissal.[206]  In this case, while I accept that the allegation was capable of substantiation (noting my finding that the conduct was not 'threatening'), and properly gave rise to grounds for discipline, I have found that termination was disproportionate and harsh.
  1. [190]
    In Hill v Cobham, Mr Hill received a first warning by letter on 27 July 2017.  That letter informed him that 'any further occurrences of failing to follow the appropriate code of conduct in the workplace may result in further action up to and including disciplinary action'.[207]  On 27 February 2018, Mr Hill received a further formal warning letter. That letter relevantly informed Mr Hill:

We are treating this matter very seriously, and therefore this letter constitutes a written warning that your inappropriate behaviour and conduct must cease immediately.  Further displays of such behaviour and conduct will not be tolerated and further disciplinary action may occur, which may include consideration of your on-going employment.[208] 

  1. [191]
    In this case, Dr Scott did not receive a warning which specified that further conduct may result in consideration of his ongoing employment. In fact, had such a formal or final warning been issued to Dr Scott, this may have served to support the reasonableness of a decision to terminate his employment.
  1. [192]
    I have reviewed all of the information available to me regarding Dr Scott's more recent work history. I acknowledge that there have been a number of occasions where intervention has been required with regard to Dr Scott's behaviour. While I acknowledge this history, I find that the previous 'lenient approach' taken by WBHHS meant that it was reasonable that termination would not likely be the management 'deemed necessary' contemplated by Dr Scott upon receipt of that correspondence, or that he would have had reason to genuinely expect that another concern about his interactions with colleagues would lead to his termination.
  1. [193]
    There are any number of other disciplinary actions which may have been fair and appropriate in the circumstances.  Further to this, if there was a view that members of the Emergency Department staff had ongoing interpersonal issues with Dr Scott, there are a wide range of management strategies which could have been explored to deal with those issues.  Termination of Dr Scott's employment in circumstances where his conduct arose in part, in response to grievances or stressors arising from the nature of his colleague Dr Rattenbury's direction to him; the resourcing issues regarding bed flow and Emergency Department capacity in the context of an unfolding pandemic, is unreasonable.
  1. [194]
    I understand that Ms Carroll determined prior to the conclusion of the second show cause process that she had lost faith and trust in Dr Scott. However, I find this difficult to reconcile in circumstances where she was content to let Dr Scott continue to work in the Emergency Department throughout the show cause process.  In circumstances where the Case Analysis advice accepted by the decision-maker in terminating Dr Scott's employment rejected disciplinary measures (other than a reprimand) on the basis that they posed a risk to staff safety, I find it particularly perplexing that suspension was not considered or deemed necessary or appropriate. The concern for staff safety was not such that it arose immediately following the events of January 2021 and warranted Dr Scott's removal from the workplace. I find it harsh and disproportionate to rely on staff safety as a basis for the termination decision months later at the end of the show cause process.

Personal and economic impact of the dismissal on Dr Scott is harsh

  1. [195]
    Ms Carroll acknowledges that in terminating Dr Scott's employment, she is depriving him of his livelihood and says that it is not a decision she takes lightly but that Dr Scott's actions and inactions compromised the well-being of staff.   For the reasons given above, I acknowledge that Dr Rattenbury, and to a greater extent, Ms Hinds were distressed by Dr Scott's interactions with them on 28 January 2022, however I note that both Dr Rattenbury and Ms Hinds were able to return to their duties on that date and Ms Carroll was content for Dr Scott to continue working in his role until his period of leave for his surgery and up until 29 June 2022 when she decided to terminate his employment.
  1. [196]
    I find that at Dr Scott's age, in circumstances where there is only one Emergency Department in Bundaberg and he had dedicated his career to public emergency medicine, including for over 25 years for Queensland Health, the termination has not only deprived him of his livelihood, but also of meaningful work in his chosen vocation.  The evidence demonstrates that Dr Scott is a highly educated, very experienced and skilled emergency specialist and it is clear that he wishes to continue making a contribution to society and the public health system. 
  1. [197]
    I note that Dr Scott has sought to mitigate his loss and has secured some other work, but that it is not of the nature of his employment at WBHHS.[209] Dr Scott's evidence is that following a number of pre-engagement processes and clearances which took two months, he has obtained a part-time engagement in a Telehealth position with 'myemergencydr.com.au'.[210]  Dr Scott's evidence is that the Telehealth work is not a long term solution and that the work is not as rewarding as working in a hospital emergency department where all of his experience and skills can be utilised.  Dr Scott's evidence goes to the personal impact of being removed from a working environment he has worked hard to specialise in over a number of years, but also to the impact on his capacity to work in the profession he has trained for:

…The experience, challenge and engagement that is available in a Telehealth setting does not compare to an emergency department setting as it lacks the element of physical emergency medicine and the performance of procedures on patients in a hyper-acute emergency setting.  Relevantly, the performance of physical procedures on patients is a continuing professional development (CPD) requirement for me to retain my fellowship to the Australasian College  for Emergency Medicine. As a result, I am continuing to seek roles which will allow me to fulfil this requirement which I will need to complete prior to the end of the CPD period in December this year.[211]

  1. [198]
    Dr Scott lives in Bundaberg, having relocated there and established a home with his spouse. Dr Scott says that having worked for nearly 12 years as a fly-in-fly-out emergency physician, he is reluctant to 'go on the road again'.[212]
  1. [199]
    The evidence demonstrates that as a result of the termination, Dr Scott has been left in a situation where, when approaching the final six or seven years of his career,[213] he has suffered a significant loss in income and certainty of employment security.  Beyond this, he has lost the capacity to work in a profession he has specialised in and his professional registration is at risk due to him not being able to perform physical procedures on patients.  When considering that the termination did not result from conduct relating to his clinical performance, the impact on Dr Scott from a personal and professional perspective is harsh in that it is disproportionate to the behaviour or conduct. 
  1. [200]
    Further, the termination, has resulted in the removal of any practical capacity for Dr Scott to work in a full-time permanent position in the profession he has trained for within a reasonable distance of his home. Even if Dr Scott were to consider moving beyond Bundaberg with a view to continuing to practice public emergency medicine, the effect of s 179A of the PS Act which would require Dr Scott to disclose his termination, makes it difficult to see a clear path to employment with other Queensland public hospital Emergency Departments. The financial impact in the drop in income is significant.  These outcomes are disproportionate to the conduct and, alongside other considerations set out in these reasons, including that there were a range of other disciplinary actions available for Ms Carroll to implement, make the termination harsh.

Dr Scott should be reinstated

  1. [201]
    For the reasons given above, while I find that the Dr Scott's conduct on 28 January 2021 breached a relevant standard of conduct and gave rise to a ground for discipline, the termination was harsh and unreasonable when considering all of the circumstances including:
  • The context in which the conduct occurred.[214]
  • Termination was disproportionate to the conduct in circumstances where it was deemed suitable for Dr Scott to not be suspended and to continue with his normal duties until the time of his dismissal some months later.[215]
  • Dr Scott has unreservedly apologised and undertaken relevant education and training.[216]
  • Where there were other more appropriate disciplinary and/or management actions available to the decision maker.[217]
  • Where the Respondent provided Dr Scott with feedback about how people perceived his capacity to deal with stress but did not offer or oversee training or development with regard to stress management as part of the PIP.
  • Where Dr Scott was not adequately warned that the Respondent had formed a view that further incidents would or may lead to termination of his employment.[218]
  • Where given his age, the nature of his specialisation, the regional location in which he is located, the limited job opportunities available to him and his length of service in public health, including 25 years with the Respondent, the personal, professional and financial impact on Dr Scott is harsh and disproportionate to the conduct.[219]
  1. [202]
    Reinstatement is the primary remedy under the IR Act and s 322, the provision relating to the remedy of compensation, is only enlivened 'If, and only if, the commission considers reinstatement or re-employment would be impracticable…'.[220]
  1. [203]
    In White v State of Queensland (Central Queensland Hospital and Health Service), O'Connor DP considered the decision of Nicolson v Heaven and Earth Gallery where Wilcox J wrote:

The word "impracticable" requires and permits the Court to take into account all of the circumstances of the case, relating to both the employer and the employee and to evaluate the practicability of a reinstatement order in a common sense way. If a reinstatement order is likely to impose unacceptable problems or embarrassment or seriously affect productivity, or harmony within the employer's business, it may be 'impracticable to order reinstatement; notwithstanding that the job remains available.[221]

  1. [204]
    In Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter ('Nguyen'),[222] a Full Bench of the Fair Work Commission addressed the issue of reinstatement where an employer claims to have lost trust and confidence in the individual:

The following propositions concerning the impact of a loss of trust and confidence on the question of whether reinstatement is appropriate may be distilled from the decided cases:

  • Whether there has been a loss of trust and confidence is a relevant consideration in determining whether reinstatement is appropriate but while it will often be an important consideration it is not the sole criterion or even a necessary one in determining whether or not to order reinstatement.
  • Each case must be decided on its own facts, including the nature of the employment concerned. There may be a limited number of circumstances in which any ripple on the surface of the employment relationship will destroy its viability but in most cases the employment relationship is capable of withstanding some friction and doubts.
  • An allegation that there has been a loss of trust and confidence must be soundly and rationally based and it is important to carefully scrutinise a claim that reinstatement is inappropriate because of a loss of confidence in the employee. The onus of establishing a loss of trust and confidence rests on the party making the assertion.
  • The reluctance of an employer to shift from a view, despite a tribunal’s assessment that the employee was not guilty of serious wrongdoing or misconduct, does not provide a sound basis to conclude that the relationship of trust and confidence is irreparably damaged or destroyed.
  • The fact that it may be difficult or embarrassing for an employer to be required to reemploy an employee whom the employer believed to have been guilty of serious wrongdoing or misconduct are not necessarily indicative of a loss of trust and confidence so as to make restoring the employment relationship inappropriate. Ultimately, the question is whether there can be a sufficient level of trust and confidence restored to make the relationship viable and productive. In making this assessment, it is appropriate to consider the rationality of any attitude taken by a party.[223]
  1. [205]
    Trust and confidence is a relevant consideration when contemplating reinstatement, but it must be soundly and rationally based.[224] 
  1. [206]
    While Ms Carroll states that if Dr Scott were to be reinstated, she has no confidence that a similar incident regarding his behaviour or conduct would not reoccur or that Dr Scott would be able to conduct himself in accordance with the Code of Conduct,[225] Ms Carroll was content for Dr Scott to continue working in the Emergency Department in the months following the 28 January Incident. Further to this, he was allocated the duties of Team Leader on a number of occasions. With reference to the propositions considered in Nguyen, this evidence demonstrates that the relationship is 'capable of withstanding some friction and doubts'. I do not find that a view that there has been a loss of trust or confidence sufficient to preclude reinstatement can be maintained in such circumstances.
  1. [207]
    Similarly, with regard to Ms Carroll's claim that she has serious concerns about the impact of Dr Scott's return on staff of the DEM and that it is vital that staff work effectively together to ensure the proper functioning of the ED,[226] I am of the view that Dr Scott demonstrated a capacity to work with his colleagues in the weeks and months prior to and following 28 January 2022. Ms Carroll was clearly of the view that the arrangements in place following the incident were sufficient that Dr Scott could continue working in the same environment with the same staff. I do not find that reinstatement is impracticable in the sense that it would create unacceptable problems or embarrassment or seriously affect productivity or harmony.[227]  If Ms Carroll genuinely holds concerns for staff of the Emergency Department, there are any number of strategies Ms Carroll may seek to put in place to support Dr Scott's return to the workplace.
  1. [208]
    Ms Carroll says in her evidence that while file notes and previous complaints about Dr Scott were not part of her decision making in the discipline process and had no bearing on her decision to terminate Dr Scott's employment, they now confirm in her mind that she has no confidence Dr Scott would be able maintain appropriate behaviour in the workplace and his reinstatement would cause significant difficulties for staff in the workplace. I do not find that the file notes or complaints are of such a nature that they should serve to displace the weeks and months of work Dr Scott undertook without issue following 28 January 2021 and until his period of sick leave and the termination. Further to that, the matters raised in that material have not formed part of informal or formal disciplinary process and there is no evidence that Dr Scott has had the matters put to him or been given an opportunity to respond to them.
  1. [209]
    I accept Dr Scott's view that he was not sufficiently warned of the prospect of termination of employment resulting from any further conduct following the non-disciplinary warnings and reprimand.  However, I am certain that it is now abundantly clear to Dr Scott that his employer has a view that conduct such as that substantiated on 28 January 2021 is such that it may give rise to grounds for discipline which may lead to disciplinary action, including termination of employment.
  1. [210]
    Dr Scott has repeatedly acknowledged that his conduct on 28 January 2021 was inappropriate.  I found Dr Scott to be a credible, honest and genuine witness and I have no reason to doubt that his apologies at that time and throughout the show cause process were sincere. Further, I believe that Dr Scott is sincere in his belief that he can learn from the matter and put it behind him to continue to have a professional working relationship with his previous colleagues and management.[228]
  1. [211]
    Having considered the submissions of the Respondent and all of the evidence before the Commission, I am of the view there can be 'a sufficient level of trust and confidence restored to make the relationship viable and productive'.[229]
  1. [212]
    It is appropriate for the Respondent to consider alternative disciplinary and/or management action to be implemented in light of the substantiated allegation, noting that I do not find the conduct was threatening, and that Dr Scott be given an opportunity to show cause regarding any proposed disciplinary action.

Orders

  1. [213]
    I am satisfied Dr Scott was unfairly dismissed and I make the following orders, pursuant to s 321 of the IR Act:
  1. The application is granted.
  1. That the Applicant be reinstated to his former position with the Respondent.
  1. The reinstatement is to be on the basis that the Applicant's continuity of service is maintained.
  1. The Respondent is to pay the Applicant the remuneration lost by reason of dismissal to be agreed or failing agreement to be the subject of a further application to the Commission. Any amount paid should take into account any income earned by the Applicant through employment he has undertaken during the relevant period.

Footnotes

[1]Laegal v Scenic Rim Regional Council [2018] QIRC 136.

[2]Applicant's outline of argument filed 11 March 2022 [35].

[3]Ibid [37].

[4]Gold Coast District Health Service v Walker (2001) 168 QGIG 258, 259 (Hall P).

[5]Applicant's outline of argument filed 11 March 2022 [5].

[6]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [27]-[33].

[7]Ibid [34]-[35], RS-03.

[8]'RAT' refers to 'Rapidly Assessing and Triaging'.

[9]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [39]-[45], [59].

[10]Ibid [46]-[50]; Affidavit of Ms Jenny Hinds sworn 8 February 2022 [9]-[10].

[11]Affidavit of Dr Scott sworn 22 December 2021 [52]-[56], [60].

[12]Applicant's outline of argument filed 11 March 2022 [16].

[13]Ibid [17].

[14]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [72], RS-10.

[15]Applicant's outline of argument filed 11 March 2022 [24].

[16]Ibid [26].

[17]Ibid [27].

[18]Ibid [39].

[19]Affidavit of Ms Jenny Hinds sworn 8 February 2022, JH-02.

[20]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [80]-[82].

[21]Ibid [41], [43]-[44].

[22]Applicant's outline of argument filed 11 March 2022 [40].

[23]Ibid [44].

[24]Ibid [46].

[25]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [138].

[26]Ibid [141].

[27]Respondent's outline of argument filed 25 March 2022 [24].

[28]Ibid [31].

[29]Ibid [34].

[30]Affidavit of Ms Deborah Carroll sworn 8 February 2022 [63].

[31]Applicant's closing submissions filed 4 July 2022 [33] citing Jones v Dunkel (1959) 101 CLR 298.

[32]T 1-40, ll 5-7. Dr Scott agreed that "BS" 'probably does stand for "bullshit"'.

[33]Exhibit 4.

[34]T 1-39, l 40 – T 1-40, l 3.

[35]T 1-36, ll 6-7.

[36]T 1-36.

[37]T 1-40, ll 14-17.

[38]T 1-49, ll 35-41.

[39]T 1-40, ll 37-45.

[40]T 1-41, ll 26-30.

[41]T 4-26, ll 1-6.

[42]T 4-26, ll 1-6.

[43]T 4-27, ll 12-23.

[44]Affidavit of Dr Sandra Rattenbury sworn 8 February 2022 [7].

[45]T 2-15, ll 4-13.

[46]T 2-13, ll 19-39.

[47]T 2-14, ll 15-47.

[48]T 2-16, ll 3-7.

[49]T 2-15, ll 15-27.

[50]T 2-17, ll 15-40.

[51]T 2-18, ll 10-14.

[52]T 2-18, l 26 – T 2-19, l 29.

[53]T 2-19, ll 40-44.

[54]T 2-20, ll 15-29.

[55]T 2-20, ll 35-42.

[56]T 2-20, l 46 – T 2-21, l 13.

[57]T 2-21, ll 32-38.

[58]T 2-22, ll 6-17.

[59]T 2-26, ll 5-39.

[60]T 2-28, ll 6-28.

[61]T 2-29, ll 41-43.

[62]T 2-30, ll 1-11.

[63]T 2-30, l 30 – T 2-31, l 6.

[64]T 1-42, ll 1-3.

[65]T 1-41, ll 40-46.

[66]T 2-36, ll 37-43.

[67]T 2-37, ll 1-24.

[68]T 2-37, ll 26-34.

[69]T 2-37, ll 35-29.

[70]T 2-38, ll 1-19.

[71]T 2-40, ll 11-18.

[72]T 2-41, l 7.

[73]T 2-48, l 1-13.

[74]T 2-53, ll 1-8.

[75]T 2-53, ll 23-27.

[76]T 2-54, l 1 – T 2-55, l 17.

[77]T 2-55, ll 42-46.

[78]T 3-20, ll 18-22.

[79]T 3-20, ll 30-34.

[80]T 1-42, ll 44-45.

[81]T 1-43, ll 4-9.

[82]T 1-43, ll 11-15.

[83]T 1-37, l 8.

[84]Affidavit of Ms Jenny Hinds sworn 8 February 2022 [8].

[85]T 2-48, ll 3-9.

[86]Affidavit of Ms Susan Michelle Hutchins [6].

[87]T 3-41 – T 3-42.

[88]T2-39, ll 16-17.

[89]T2-30, ll 15-17.

[90]Affidavit of Ms Susan Michelle Hutchins [10].

[91]T 4-27, ll 25-36.

[92]T 4-30 – T 4-31.

[93]Affidavit of Ms Suzanne Helen Smith sworn 8 February 2022 [5].

[94]Affidavit of Dr Terrence Francis George sworn 8 February 2022 [12].

[95]T 4-31, ll 24-29.

[96]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [65].

[97]Ibid.

[98]T 1-50, ll 39-45.

[99]Macquarie Dictionary (online at 15 December 2022) 'threat'.

[100]Ibid 'threatening'.

[101]Briginshaw v Briginshaw [1938] HCA 34.

[102]T 4-10, ll 43-46.

[103](1995) 185 CLR 410, 467 ('Byrne') citing Bostik (Australia) Pty Ltd v Gorgevski [No 1] (1992) 36 FCR 20, 28. Applied in Nesbit v MNHHS [2020] QIRC 066.

[104]Byrne (n 103) 465.

[105]Affidavit of Ms Deborah Carroll sworn 8 February 2022 [61].

[106]T 1-26 – T1-30; Exhibits referred to therein.

[107]T 1-26, ll 26-47.

[108]T 1-27, ll 21-22.

[109]T 1-28, ll 4-13.

[110]T 1-29, ll 1-8.

[111]T 1-29, ll 44 – T 1-30, l 9.

[112]T 1-30, ll 35-41.

[113]Refers to allegation 1.

[114]Refers to allegation 2.

[115]Refers to allegation 3.

[116]Applicant's closing submissions filed 4 July 2022 [100].

[117]T 1-31 – T 1-32.

[118]T 3-25, ll 23-31.

[119]T 3-28, ll 5 –T 3-30, l 8.

[120]T 3-31, l 45 – T 3-32, l 9.

[121]T 1-49, l 46 – T 1-50, l 5.

[122]T 1-14, ll 44-46.

[123]T 1-44, ll 4-11.

[124]T 2-10, ll 35-41.

[125]T 2-11, ll 5-11.

[126]T 2-11, ll 13-15.

[127]T 2-11, ll 27-39.

[128]T 2-11, ll 41-46.

[129]T 2-12, ll 10-27.

[130]T 2-13, ll 8-17.

[131]T 2-34, ll 34-37.

[132]T 2-34, ll 39-44.

[133]T 2-34, l 45 – T 2-35, l 2.

[134]T 2-36, ll 1-7.

[135]T 2-35, ll 32-45.

[136]T 2-62, ll 32-36.

[137]T 2-62, ll 45-47; T2-63, ll 1-14.

[138]T 2-63, ll 34-46.

[139]T 3-4, ll 10-18.

[140]T 3-4, ll 20-26.

[141]T 3-4.

[142]T 3-6, ll 4-22.

[143]T 3-6, ll 26-31.

[144]T 3-6, ll 33-41.

[145]T 3-6, l 43 – T 3-7, l 6.

[146]T 3-7, ll 5-23.

[147]Exhibit 2.

[148]T 3-9, ll 3-17.

[149]T 3-9, ll 34-44.

[150]T 3-10, ll 1-21.

[151]T 3-11, l 44 – T 3-12, l 2.

[152]T 3-12, ll 1-8.

[153]T 3-19, ll 34-35.

[154]T 3-19, ll 34-45.

[155]T 3-22, ll 6-28.

[156]T 3-22, ll 33-37.

[157]T 3-47, ll 15 – 19.

[158]T 3-47, ll 33-36.

[159]T 3-48, ll 8-11.

[160]T 3-48, ll 15-37.

[161]T 3-50, ll 1-7.

[162]T 3-50, ll 20-22.

[163]T 4-4, l 38 – T 4-5, l 4.

[164]T 4-5, ll 6-10.

[165]T 4-5, ll 22-27.

[166]T 4-6, ll 16-20.

[167]T 4-6, ll 28-36.

[168]T 4-6, ll 40-45.

[169]T 4-7, ll 21-29.

[170]T 1-33, ll 1-17.

[171]T 1-33, ll 19-28.

[172]T 1-48, ll 13-37.

[173]Applicant's closing submissions filed 25 July 2022 [42].

[174]T 1-43, ll 17-23.

[175]T 1-43, ll 25-45.

[176]T 2-32, ll 20-28.

[177]T 2-57, ll 11-23.

[178]T 3-23, l 22 – T 3-24, l 9.

[179]T 4-7, ll 41-46.

[180]T 4-8, ll 6-10.

[181]T 4-8, ll 1-4.

[182]T 4-8, ll 16-28.

[183]T 4-8, ll 30-35.

[184]T 4-8, ll 37-42; T 4-9, ll 3-6.

[185]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [70].

[186]Ibid [71].

[187]Applicant's closing submissions filed 4 July 2022 [11].

[188]Affidavit of Ms Deborah Carroll sworn 8 February 2022 [74], DC-07.

[189]Ibid [74].

[190]Letter from Ms Debbie Carroll to Dr Robert Scott dated 29 June 2021 ('the termination letter') [3].

[191]Ibid [4].

[192]Ibid [5].

[193]Ibid [6].

[194]Ibid [7].

[195]Ibid [8].

[196]Ibid [9].

[197]Ibid [12].

[198]Ibid [13].

[199]Thomson v Brisbane City Council [2021] QIRC 429, [49].

[200]T 2-3, ll 27-38.

[201]T 4-15, ll 14-28.

[202]T 1-15, ll 31-32.

[203][2019] FWC 7875.

[204]Ibid [120].

[205]Ibid [151].

[206]Ibid [122].

[207]Ibid [137].

[208]Ibid [140].

[209]Affidavit of Dr Robert Adam Scott filed 11 May 2022.

[210]Ibid [2]-[3].

[211]Ibid [7].

[212]Ibid [12].

[213]Affidavit of Dr Robert Adam Scott filed 22 December 2021 [17].

[214]Discussed in these reasons from [104]-[165].

[215]Discussed in these reasons from [166]-[177].

[216]Discussed in these reasons from [178]-[180].

[217]Stephen Grantham v NSW Trains [2021] FWC 5995 [108].

[218]Discussed in these reasons from [181]-[194].

[219]Discussed in these reasons from [195]-[200]; Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969 [74], [101]; Francis Hughes v BlueScope Steel (AIS) Pty Ltd [2022] FWC 4 [167].

[220]White v State of Queensland (Central Queensland Hospital and Health Service) [2017] QIRC 041 [82] ('White').

[221]Nicolson v Heaven and Earth Gallery (1994) 57 IR 50, 61.

[222][2014] FWCFB 7198 ('Nguyen') cited in Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963.

[223]Nguyen (n 222) [27].

[224]Applicant's closing submissions filed 4 July 2022 [123] citing Australia Meat Holdings Pty Ltd v McLauchlan (1998) 84 IR 1.

[225]Affidavit of Ms Deborah Carroll sworn 8 February 2022 [72].

[226]Ibid [73]

[227]White (n 220) with reference to Nicolson v Heaven and Earth Gallery (1994) 57 IR 50, 61.

[228]Affidavit of Dr Robert Adam Scott sworn 22 December 2021 [141].

[229]Nguyen (n 222).

Close

Editorial Notes

  • Published Case Name:

    Scott v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Scott v State of Queensland (Queensland Health)

  • MNC:

    [2022] QIRC 488

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    16 Dec 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
Australia Meat Holdings Pty Ltd v McLaughlin (1998) 84 IR 1
2 citations
Jump To
Cite 1 - (1998) 84 IR 1
Cite 2 - (1998) 84 IR 1
Bostik (Aust) Pty Ltd v Gorgevski (1992) 36 FCR 20
2 citations
Jump To
Cite 1 - (1992) 36 FCR 20
Cite 2 - (1992) 36 FCR 20
Briginshaw v Briginshaw (1938) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
3 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Cite 3 - (1995) 185 CLR 410
Francis Hughes v BlueScope Steel (AIS) Pty Ltd [2022] FWC 4
2 citations
Jump To
Cite 1 - [2022] FWC 4
Cite 2 - [2022] FWC 4
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
Gwatking v Schweppes Australia Pty Ltd [2015] FWC 3969
2 citations
Jump To
Cite 1 - [2015] FWC 3969
Cite 2 - [2015] FWC 3969
Jones v Dunkel (1959) 101 CLR 298
2 citations
Jump To
Cite 1 - (1959) 101 CLR 298
Cite 2 - (1959) 101 CLR 298
Laegal v Scenic Rim Regional Council [2018] QIRC 136
2 citations
Jump To
Cite 1 - [2018] QIRC 136
Cite 2 - [2018] QIRC 136
Nathan Hill v Cobham Aviation Services Pty Ltd T/A Cobham Aviation Services [2019] FWC 7875
2 citations
Jump To
Cite 1 - [2019] FWC 7875
Cite 2 - [2019] FWC 7875
Nesbit v Metro North Hospital and Health Service [2020] QIRC 66
2 citations
Jump To
Cite 1 - [2020] QIRC 66
Cite 2 - [2020] QIRC 66
Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198
3 citations
Jump To
Cite 1 - [2014] FWCFB 7198
Cite 2 - [2014] FWCFB 7198
Cite 3 - [2014] FWCFB 7198
Nicolson v Heaven and Earth Gallery (1994) 57 IR 50
3 citations
Jump To
Cite 1 - (1994) 57 IR 50
Cite 2 - (1994) 57 IR 50
Cite 3 - (1994) 57 IR 50
Scott Challinger v JBS Australia Pty Ltd [2014] FWC 7963
2 citations
Jump To
Cite 1 - [2014] FWC 7963
Cite 2 - [2014] FWC 7963
Stephen Grantham v NSW Trains [2021] FWC 5995
2 citations
Jump To
Cite 1 - [2021] FWC 5995
Cite 2 - [2021] FWC 5995
Thomson v Brisbane City Council [2021] QIRC 429
2 citations
Jump To
Cite 1 - [2021] QIRC 429
Cite 2 - [2021] QIRC 429
White v Queensland [2017] QIRC 41
2 citations
Jump To
Cite 1 - [2017] QIRC 41
Cite 2 - [2017] QIRC 41

Cases Citing

Case NameFull CitationFrequency
Chen v Gold Coast Hospital and Health Service (No. 4) [2023] QIRC 1282 citations
1

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