Garanovic v State of Queensland (Queensland Health)
[2023] QIRC 129
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- Garanovic v State of Queensland (Queensland Health)[2023] QIRC 129
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Garanovic v State of Queensland (Queensland Health)[2023] QIRC 129
Garanovic v State of Queensland (Queensland Health)[2023] QIRC 129
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Garanovic v State of Queensland (Queensland Health) [2023] QIRC 129 |
PARTIES: | Garanovic, Nedzad (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/21 |
PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 10 May 2023 |
HEARD AT: | On the papers |
MEMBER: | Pidgeon IC |
ORDERS: |
|
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appellant employed as a clinical nurse at a public hospital – appeal against a disciplinary finding decision – allegation that the appellant failed to meet the objectives of his performance improvement plan – allegation substantiated – finding of misconduct set aside – substituted finding |
LEGISLATION: | Public Sector Act 2022 (Qld) ss 91, 289, 324 Public Service Act 2008 (Qld) (repealed) s 187 Industrial Relations Act 2016 (Qld) s 562C |
CASES: | Coleman v State of Queensland (Department of Education) [2020] QIRC 032 |
Reasons for Decision
Introduction
- [1]Mr Nedzad Garanovic is employed by the Respondent, the Gold Coast Hospital and Health Service (GCHHS), as a Clinical Nurse (CN) in the Rehabilitation Division at Robina Hospital.
- [2]Mr Garanovic appeals the decision of Mr Grant Brown, Executive Director People and Corporate Services at the GCHHS (the decision-maker), dated 24 January 2022, to make disciplinary findings against him in relation to the following substantiated allegation:
Allegation one
You failed to meet the agreed performance objectives of your Performance Improvement Plan when you did not demonstrate improved advanced communication skills and provide consistent clinical leadership to ensure comprehensive and safe patient care as required by a Clinical Nurse.
- [3]In the decision letter, Mr Brown sets out his findings and concludes with respect to the allegation:
On the basis of my findings in relation to Allegation one, I have determined that pursuant to section 187(1)(b) of the Act… you may be guilty of misconduct that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.
- [4]In consideration of this substantiated allegation, the decision-maker requests that Mr Garanovic show cause within seven days with regard to the following proposed disciplinary action:
- A reprimand.
- A reduction in classification level and consequential change of duties to that of a Registered Nurse (RN), grade 5, pay point 7.
- [5]As there has been no decision made regarding the proposed disciplinary action, this appeal is confined to whether it was fair and reasonable for Mr Brown to determine that Allegation 1 was substantiated and that it gave rise to a finding that Mr Garanovic was guilty of misconduct.
- [6]The disciplinary finding decision was preceded by the Appellant being subject to a number of Performance Improvement Plans.
Mr Garanovic’s Appeal Notice
- [7]Mr Garanovic says he received the decision letter dated 24 January 2023 on 31 January 2023. He sent his appeal notice to the Industrial Registry on 19 February 2023, and it was accepted for filing on 20 February 2023. I am satisfied that Mr Garanovic has filed his appeal notice within the requisite 21-day period.
Appeal Principles
- [8]Section 562B(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
- [9]Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
- [10]A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
- [11]In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
- (a)confirm the decision appealed against; or
…
- (c)For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Legislative Framework and Other Instruments
- [12]The Appellant filed his appeal before the commencement of the new Public Sector Act 2022 (Qld) (the PS Act) on 1 March 2023. Section 289 of the PS Act repeals the previous Public Service Act 2008 (Qld) which was in effect at the time the decision-maker determined to substantiate the allegation and when Mr Garanovic filed his appeal.
- [13]Section 324 of the PS Act relevantly provides:
- (1)This section applies if—
- (a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
- (b)immediately before the commencement, the appeal had not been decided.
- (2)From the commencement, the appeal must be heard and decided under chapter 3, part 10.
- [14]Immediately before the commencement of the new PS Act, Mr Garanovic’s appeal had not been decided. I will therefore decide Mr Garanovic’s appeal under ch 3, pt 10 of the new PS Act.
- [15]Section 91 of the PS Act relevantly provides:
91 Grounds for discipline
- (1)A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
…
(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
…
- (5)In this section—
misconduct means—
- (a)inappropriate or improper conduct in an official capacity; or
- (b)inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
Example of misconduct—
victimising another public sector employee in the course of the other employee’s employment in the public sector
Mr Garanovic’s Grounds of Appeal
- [16]It appears that Mr Garanovic believes that there were problems with the Performance Improvement Plan (PIP) which formed the basis for Allegation one. Mr Garanovic says that the original PIP was modified after the original PIP assessment period. Mr Garanovic also says that he was not provided with natural justice or objectivity as is required by the Respondent’s Performance Improvement Policy.
- [17]Mr Garanovic questions the written complaints which were made about him as they either occurred outside of the PIP period or they related to matters he has already responded to. Mr Garanovic also says that he successfully completed his Performance and Development Plan (PDP) around the time of the PIP and that he was shown to have met all expectations.
- [18]Essentially, it appears that Mr Garanovic believes the disciplinary finding was not fair and reasonable as it was made in reliance on the PIP which he says was flawed.
The Performance Improvement Process
Background
- [19]The PIP which is the subject of this appeal commenced in February 2021. Prior to this, Mr Garanovic participated in a 3-month PIP spanning from 25 February 2019 to 27 May 2019 (the 2019 PIP). That PIP was put in place following concerns raised in October 2018 regarding Mr Garanovic’s performance and conduct. The 2019 PIP was finalised on 20 June 2019 with the following comments recorded by the Nurse Unit Manager:
I reiterated to Ned the need to continue with his improved practices. Moving forward Ned will maintain improvement and continue to work up to scope as a Clinical Nurse at QLD Health. Failure to comply with the expectations discussed will result in a review of the clinical improvement process in conjunction with the Human Resources Team. Ned understood the conversations and expectations of the role of a CN in the unit/QLD Health and agreed to work within the boundaries of the role of the CN.
- [20]It appears that a PDP was then put in place from 27 February 2020, and that this plan was collaboratively developed by the Nurse Unit Manager, Ms Sue Jones and the Clinical Facilitator for Rehabilitation, Ms Amanda McAulay. The Respondent says that on 5 June 2020, the Assistant Director of Nursing for Neurology Services and Rehabilitation (ADON), Ms Paula Longbottom, met with Mr Garanovic to discuss multiple workplace concerns including a reported breach of a behavioural management plan, the non-completion of Mr Garanovic’s portfolio education plan within the instructed timeframe, and a lack of adequate information sharing during clinical handovers.
- [21]In a meeting on 20 July 2020, the ADON concluded that multiple goals from Mr Garanovic’s PDP had not been met and Mr Garanovic was advised that a new PIP was required to support Mr Garanovic to improve his work practices.
The 2021 PIP
- [22]The Respondent says that records reflect that Mr Garanovic’s PIP was developed in November 2020, but that commencement was delayed due to Mr Garanovic’s perception there had been a breakdown in the relationship between himself and Ms Jones.
- [23]The Respondent says that to address Mr Garanovic’s concerns, consultation was undertaken with Mr Garanovic, Mr Lunn, Director of Nursing, Ms Heathfield, QNMU representative, and Ms Castles, Manager Human Resources Business Partners.
- [24]The Respondent says that on 5 February 2021, it was mutually agreed that Mr Garanovic would temporarily transfer to the Rehabilitation Ward at Robina Hospital (H2 South) to undertake the PIP under the objective leadership and management of Mr Hardwick, NUM – H2 South, Robina Hospital.
- [25]On 22 February 2021, Mr Garanovic attended a meeting with Mr Hardwick and Ms Jacob, Nurse Educator Neurology and Rehabilitation, regarding the commencement of the PIP. I will not set out the content of the PIP in its entirety, but I will list the ‘agreed performance expectations’ set out in the PIP:
- Demonstrate respectful communication with all stakeholders including staff, patients and their families;
- Provide advanced clinical leadership within the work unit;
- Ensure comprehensive and safe patient care with a particular focus on improved critical thinking and attention to detail; and
- Actively participate in the professional development process and required activities.
- [26]The PIP document outlined the things Mr Garanovic was required to do in order to meet the agreed performance expectations. The Respondent says that the following training and support strategies were implemented to support Mr Garanovic to improve his work performance:
- Shadow an existing CN to assist the appellant with orienting himself to the new work unit at Robina and refresh expectations regarding CN communication and handover skills.
- Nominate senior members of the team as support for on the ground concerns. Specifically, Ms Jacob, Nurse Educator, and Ms Debra Campbell, Clinical Facilitator, Rehabilitation were assigned as coaches and mentors during the improvement plan and were available for ad hoc support where needed.
- Access to the Communication Basics and Frontline Management training modules through the internal Learning On-Line Platform.
- Formal training in clinical leadership through the Acute Care Module.
- Access to education and support material were made available form Educators to assist with improved written communication strategies and the Electronic Medical Records (EMR) Team were engaged to provide clinical documentation templates.
- Mr Hardwick made himself available to be a senior coach and provide clinical, education and emotional support. This included fortnightly meetings for ongoing constructive and timely feedback, as well as an opportunity to share self-reflections and access individual coaching for any identified areas of concern; and
- Access to Employee Assistance Program (EAP) for additional and confidential support.
- [27]On 27 May 2021, there was a meeting between Mr Garanovic, Mr Hardwick, Ms Campbell and Ms Jacobs. At this meeting, Mr Hardwick provided feedback that there had been concerns raised regarding Mr Garanovic’s oral and written communication skills which was evident in handovers and clinical documentation. This feedback included reports that patient information was disjointed, and that there had been an instance in which the wrong handover sheet was printed which caused confusion as well as a safety risk within the Unit. The Respondent says that in order to provide additional support, Ms Campbell was assigned to shadow Mr Garanovic and provide feedback during clinical handovers.
- [28]At the 27 May 2021 meeting, Mr Hardwick also shared concerns from other Clinical Nurses regarding Mr Garanovic’s decision making skills. The Respondent says that it was reported that during a night shift, Mr Garanovic asked a Newly Qualified Nurse (NQN) to insert an indwelling urinary catheter in a female patient without checking the NQN’s skills or competency. In the discussion, it was reported the Mr Garanovic did not realise that he could not supervise an NQN when they have not completed the required theory package.
- [29]On 27 July 2021, Mr Garanovic met with Mr Hardwick and Ms Jacobs to review and discuss his progress against the PIP objectives. It was acknowledged at that meeting that Mr Garanovic had actively participated in the professional development activities and that he was accepting of positive and constructive feedback, however there were still ongoing concerns about Mr Garanovic’s communication and leadership skills. The Respondent says these concerns were specifically:
- The inconsistent use of effective communication strategies with others;
- Continued lack of depth in multidisciplinary handovers and case meetings;
- Indecisive decision making, poor assessment and judgement resulting in understaffing and workload pressures;
- Lack of consistency when providing leadership and guidance to other nursing staff in clinical circumstances;
- Dismissive engagement with Nursing staff relating to patient’s wellbeing; and
- Multiple complaints from junior nursing staff reflecting they felt unsupported with their clinical decisions.
- [30]Mr Hardwick determined that as Mr Garanovic had not consistently met the required performance objectives to successfully complete his PIP, the PIP should be extended for a further three months.
- [31]The Respondent says that Mr Garanovic ‘failed to engage in any reasonable self-reflective practices and contends that all of the concerns raised regarding both his clinical application, patient care and behaviours have been an “overreaction” but that this is not supported by the evidence provided’.
- [32]The final PIP meeting was held on 20 October 2021 with Mr Garanovic, Ms Samuels, ADON Allied Health and Rehabilitation Services, and Mr Hardwick in attendance. The Respondent says that during that discussion, Mr Hardwick raised multiple complaints from team members which had previously been discussed with the appellant during his fortnightly PIP meetings but which were the basis for the failure of the PIP, specifically:
- On 24 August 2021, an Enrolled Nurse (EN) under the appellant’s leadership raised concerns with the appellant regarding a deteriorating patient following a change to their wound status who was experiencing an escalation in pain. The EN reported the appellant was dismissive of their assessment, and the EN was required to advocate for intervention to another senior nursing team member before appropriate treatment commenced.
- On 26 September 2021, a NQN requested advice and guidance from the appellant for a patient with cognitive deficits who refused to take medications. During this interaction, the nurse reported receiving no significant assistance from the appellant which resulted in intervention by another senior nurse.
- An incident where the appellant reportedly signed confirmation of receipt for Schedule 4 and 8 drugs, which were not processed in accordance with the correct procedure which resulted in the medication being left unattended on the front counter of the nurses’ station.
- Over the weekend spanning 3-4 July 2021, complaints were made by an EN regarding an incident in which the appellant allegedly failed to suitably assess workload requirements and proactively engage additional staff to support the complex patient load, resulting in an unsafe and excessively heavy weekend workload. This was following explicit direction from the appellant’s NUM to undertake this vital assessment of the work unit, as the NUM was on a scheduled rostered day off.
- Mr Hardwick readdressed the ongoing concerns raised by the team regarding their difficulties with the appellant’s verbal and written communication skills. A primary concern relates to the repeated lack of significant patient details provided in clinical handovers, directly impacting patient care and the appellant’s perceived ability to provide clear and concise leadership. One example shared relates to an incident on 26 July 2021 where a patient with a newly diagnosed deep vein thrombosis had not yet commenced their time sensitive treatment, however this vital information was not shared by the appellant with the oncoming team for suitable management.
- [33]The Respondent says that Mr Garanovic reinforced that he had no concerns with his own clinical practice and did not recognise how his performance could negatively impact the safety of the work unit. Mr Hardwick advised Mr Garanovic that he had still not met the required performance objectives to successfully complete his PIP due to his inability to consistently perform at the expected professional level of a Clinical Nurse.
- [34]In light of the unsatisfactory outcome of the PIP, Mr Samuels proposed that Mr Garanovic remain in the Rehabilitation Ward at Robina (H2 South) as a permanent RN or return to his substantive CN position in the Rehabilitation Ward at Gold Coast University Hospital to continue his PIP under the guidance of a mentor. The Respondent says that following further discussion, a compromise was reached where Mr Garanovic’s CN contract was extended in H2 South, where he would remain on a PIP until the end of January 2022, undertaking regular reflective journalling and ongoing mentoring.
- [35]On 11 November 2021, Mr Garanovic met with Mr Hardwick and Ms Jacobs for a scheduled PIP coaching session. At that meeting, Mr Garanovic was provided with a copy of the notes of the 20 October 2021 meeting for his review and response. Mr Garanovic was allowed to view documentation relating to the concerns listed above at [32] and there was a discussion about his shortcomings in professional performance and clinical leadership. It was reinforced to Mr Garanovic that he was not meeting the performance expectations of the PIP.
- [36]Mr Garanovic refuted there were any concerns or issues with his clinical performance and said that some of the inexperienced nursing staff were overzealous with their advocacy for patient care. Mr Hardwick reinforced to Mr Garanovic that he would rather nurses be cautious than dismissive and advocate or escalate concerns when they believed patient assessments required further investigation.
- [37]The Respondent says that Mr Garanovic’s written response to the complaints received on 29 November 2019 demonstrated that Mr Garanovic did not understand how his clinical practice and work performance was negatively impacting the safety of the work unit.
- [38]The Respondent says that a review of the documentation provided by Mr Hardwick about Mr Garanovic’s progress and performance during evaluation at the end of the extended PIP in H2 South showed consistent negative feedback about Mr Garanovic’s work performance and clinical leadership. This documentation included:
- On 15 November 2021, Ms Rebecca Lynch, Registered Nurse (RN), advised that when she escalated concerns about patients to the appellant, she felt the information was dismissed with a blasé attitude. Ms Lynch provided an example of a new admission which came into H2 South with a confusing insulin order. Due to Doctors not being on the ward at the time, she reported raising the discrepancy with the appellant as the CN but reported she did not receive the required clarification. Several hours later, Ms Lynch advised she reviewed the insulin charting order and noticed it had remained unchanged. She re-escalated the enquiry to the next Nurse In Charge after handover to seek direction and was advised they had not been briefed of this matter. Ms Lynch advised this is inconsistent with the support she receives from other senior nurses or CNs on the ward, who educate, provide clarification and/or follow up on concerns and then report back to the team with a plan when concerns are raised.
- Ms Rachel Hudson, Clinical Team Coordinator (CTC), raised concerns regarding an interaction on 21 November 2021 relating to patient UR 271617. Following surgery, it was alleged over a 2.5 hour period Mr Garanovic called the CTC numerous times, lodged multiple medical tasks and engaged with the surgical team regarding Clexane. It was alleged the appellant’s communication was extremely poor and unclear and Ms Hudson was concerned if it had been urgent and/or more serious, it could have affected the patient’s wellbeing and outcome and created an unnecessary risk for the appellant’s colleagues.
- On 7 January 2022, it was reported the appellant was the Nurse in Charge when a patient in a shared room was identified as being COVID positive. Concerns were raised by Ms Samuels regarding the delay in isolating this patient and the appellant’s failure to escalate and communicate this emergent incident to the appellant’s management team. Ms Samuels noted that despite prompting, the appellant did not identify this as an important issue which needed to be communicated effectively and immediately.
- Ms Lindsey Thornton, EN, raised concerns regarding an incident which occurred on 9 February 2022 where a patient fell while using a bathroom. While the team was attending to the patient’s needs, another patient approached and requested to enter the bathroom to use the toilet. Ms Thornton verbalised her concern to the appellant that the patient should be redirected to another toilet as the toilet was being cleaned up after the fall. The appellant, who was Team Leader at the time, allegedly allowed the patient to step over the fallen patient, use the facilities and step over the fallen patient on exiting the toilet. The fallen patient had not been assessed for further injuries and was in a state of undress. Later that evening, a further incident occurred where the fallen patient refused assistance and fell again, striking his head and back against the wall. When escalated to the appellant, it was reported the appellant moved the patient onto a mattress on the floor in a vacant room after the appellant moved furniture out of the way. Although the appellant advised Ms Thornton this was for safety reasons, she felt uncomfortable with the solution. She reported feeling unable to advocate for her patient as the appellant would not listen to her and did not respect her as a co-worker.
- On 10 February 2022, Ms Camryn Warmington, RN, reported due to ongoing communication difficulties, she now seeks support from her colleagues instead of approaching the appellant. She provided multiple examples where she had advocated to the appellant on behalf of her patients but her request for support were not recognised and/or actioned by the appellant including:
-Failing to escalate a request for an anti-emetic for a nauseated patient on 9 February 2022.
-Unnecessary delays in acting on a request for additional analgesia for a patient reporting a 9/10 pain level of pain (patient in bed 6 on 10 February 2022).
-Being directed to perform a full surgical shower for a patient who had spilled his urinal on himself, without consideration to the patient level of mobility and where she considered a bed sponge to be the most appropriate method of cleaning (On 10 February 2022).
- [39]At a meeting held on 16 February 2022, Ms Samuels advised Mr Garanovic that he had not met the performance expectations set out in his PIP and offered him the opportunity to remain within the Robina Rehabilitation Unit as an RN. Mr Garanovic declined the offer and Ms Samuels advised that the matter would be referred for consideration of disciplinary action.
The Show Cause Process
- [40]On 25 October 2022, Mr Grant Brown issued a first show cause notice to Mr Garanovic outlining an allegation that he had failed to meet the agreed performance objectives of the PIP and that he had not demonstrated improved advanced communication skills and had not provided consistent clinical leadership to ensure comprehensive and safe patient care as required by a Clinical Nurse.
- [41]I have reviewed that show cause notice and note that it contains approximately eight pages of particulars to Allegation one.
- [42]On 1 December 2022, Mr Garanovic provided a response to the show cause notice. I have reviewed that response.[1] While I have read the response in detail, I adopt the Respondent’s summary of the response as set out in its submissions for the purposes of capturing its content:
- After he successfully completed the PIP in June 2019, he was subjected to approximately 20 false allegations, which led to the second PIP which commenced in November 2020.
- In May 2021, he was subject to a PDP and a PIP at the same time. He noted he had received positive feedback from three colleagues around that time.
- The assessments relied upon for the PIP which ended in July 2021 were based on subjective observations and presented him as incompetent.
- Complaints received outside of the PIP’s timeframes were considered as part of the PIP review process.
- The PIP document signed by Mr Hardwick was amended without his knowledge.
- He acted appropriately in all interactions and disagreed with negative concerns raised, suggesting a ‘witch hunt’ against him.
- He had been discriminated against due to his English language skills.
- [43]In his written submissions, Mr Garanovic alleges that the ‘original PIP has been altered/forged.’ Mr Garanovic says that false allegations were put into the original PIP after the PIP date had passed. For example, Mr Garanovic takes issue with a complaint related to 6 August 2021 being added to his ‘original PIP’. Mr Garanovic says that this is ‘essentially falsification of a problem that didn’t exist during the originally assessed time period.’
- [44]The Respondent disputes Mr Garanovic’s assertion that the PIP was changed without his knowledge. The Respondent says that at the time the PIP was extended to afford Mr Garanovic with a further opportunity to improve, he refused to sign a new PIP. The Respondent says that it is not unusual for the original PIP’s performance goals and objectives to be relied upon through an extended process, particularly where the areas of concern are unchanged. The PIP document is a live document which should be reviewed and adjusted as necessary to support the employee to achieve satisfactory performance levels. The Respondent says that the delegate reviewed the documentation and found no evidence of fraud or misrepresentation with regard to the PIP’s expectations.
Outcome of show cause one
- [45]Mr Garanovic says that he did not get an opportunity to receive or check the evidence relied upon by the decision-maker and that most of the emails including complaints are ‘not acceptable because there is information missing.’ Mr Garanovic says that the ‘true information’ has not been given to management.
- [46]Mr Garanovic says that the Respondent reached its conclusion on ‘wrong evidence’ and that the process of his original PIP did not follow QH Policy in that it was not objective, and was without evidence.
- [47]Mr Garanovic has included a range of attachments to his submissions, many of which included handwritten annotations. I have looked at all of these documents even if I do not refer to them in this decision.
- [48]The Respondent says that the delegate considered the evidence as well as Mr Garanovic’s responses in determining that the allegation was capable of substantiation on the balance of probabilities. The Respondent says that the delegate determined:
- The evidence demonstrating behaviours of concern within the workplace by the appellant involved observations from many different employees where it was apparent they raised concerns in good faith. There was no evidence of collusion or ill-feeling towards the appellant identified in the complaint material.
- The concerns raised by witnesses involved matters sufficiently serious in relation to advanced communication skills and consistent clinical leadership, having the potential to impact comprehensive and safe patient care to warrant being addressed with the appellant.
- The appellant made minimal concessions in response to the allegations, considering his behaviours and work performance were to an appropriate standard.
- The delegate considered the appellant had been provided with an appropriate level of support and guidance in addressing concerns outlined in the PIP, evidenced in PIP documentation.
- [49]The Respondent says it remains concerned that Mr Garanovic does not appear to accept or understand the seriousness of the concerns raised, despite substantial and ongoing training and support. The Respondent says it is unlikely further management action or intervention would result in Mr Garanovic achieving a sustainable improvement in his work practice at the level expected of a Clinical Nurse.
Mr Garanovic’s Submissions
Response to issues addressed throughout his PIP and in determining he had not successfully completed the PIP
- [50]In his written submissions filed on 29 March 2023, Mr Garanovic states that in 15 years working for Queensland Health, no issues have been raised regarding his communication in English which he says is his fifth language. Mr Garanovic acknowledges that he speaks with an accent but says that his knowledge, experience and skills are at a very high standard. Mr Garanovic argues that for the Respondent to question his performance now is ‘unheard of and discriminatory.’
- [51]Mr Garanovic submits that he successfully completed a module about clinical leadership and communication as part of his PIP in May 2021 and that this was assessed by Ms Jacob. Mr Garanovic says that he communicates with over 50 people daily in his role as a Clinical Nurse and has no communication issues.
- [52]Mr Garanovic submits that emailed complaints made about him were written on the request of management. Mr Garanovic says that he cannot accept the emailed complaints as evidence because they are opinion and gossip. Mr Garanovic says that he requires documentation providing ‘patient names, bed numbers, dates, times’ and that he did not receive permission to ‘access charts and patient documentation to answer allegations.’
- [53]With regard to the complaint involving Mr Garanovic directing an NQN to insert a catheter under his supervision, Mr Garanovic submits that QH Policy PRO0879 allows this to occur.
- [54]Mr Garanovic says that the information provided in the complaint regarding the patient’s wound is false. On page 3 of his submissions, Mr Garanovic sets out his memory of the events.
- [55]With regard to the complaint regarding a patient refusing medication, Mr Garanovic says that this is a ‘daily situation on the ward’ and a ‘common issue in nursing.’
- [56]In terms of the complaint about the handling of the controlled medication, Mr Garanovic says that this allegation is made with no date or time and that he received the red bag from the pharmacy and locked it in the medication cabinet as per policy.
- [57]Turning to complaints made about his handling of workload issues, Mr Garanovic says that there are no written complaints about this, and that if additional staff were needed to address workload on a ‘pm shift,’ this should have been organised by the ‘am shift team leader’ and that he worked a pm shift on 3 July 2021. With regard to other dates, Mr Garanovic says that decisions were made that there was no requirement to address additional workload.
- [58]Furthermore, with regard to a number of other matters addressed in the PIP and the show cause letter, Mr Garanovic says that the decision-maker is ‘expressing his opinion and follow up plan but not presenting any objective evidence’. Mr Garanovic says that he disagrees with the decision-maker’s opinions on his performance.
- [59]With regard to the complaint about insulin, Mr Garanovic says that this occurred months earlier and not on the date provided. He says that ‘ordering insulin, and medication is a medical team responsibility. Medical team has been informed that patient is on ward and concerns of primary nurse regarding insulin x 2 in that shift were voiced, doctors are asked to review patient medication and Insulin order’ and that this is a ‘common practice’ with every patient.
- [60]Mr Garanovic says the complaint about the COVID-19 positive patient not being isolated to the single room and his failure to inform anyone about the patient being on the ward is false. Mr Garanovic says that the actions he took are documented in the patient chart.
- [61]Mr Garanovic says that the complaint about the patient who had two falls on the night shift in February 2022 did not happen as stated by the enrolled nurse who reported the issue.
- [62]With regard to the complaint about the patient who fell while in the bathroom, Mr Garanovic says that it was open to the nurse involved and the other nurse present to direct the other patient to another bathroom. He says that he was unable to do so as he was busy on his knees attending to the patient who fell.
- [63]Mr Garanovic says that a complaint made regarding ‘antiemetic’ did not happen on the date alleged and that he reviewed the patient and made a suggestion for action to be taken until the Doctor had ordered the medication.
- [64]Finally, Mr Garanovic makes some submissions regarding the complaint about surgical showering vs sponge bath. It seems that Mr Garanovic is of the view that the decision regarding the bathing of the patient was made by the primary nurse.
Consideration
The PIP process was fair and reasonable
- [65]It seems to me that it was reasonable for the Respondent to commence the 2021 PIP. The PIP includes agreed areas for improvement. Mr Garanovic was provided with a range of support measures as set out above at [26]. Fortnightly meetings occurred throughout the PIP and the PIP was extended to allow Mr Garanovic further time to implement feedback he had received and to meet the expectations to successfully complete the process.
- [66]In response to Mr Garanovic’s concerns about undertaking the PIP in his substantive location, there was an agreement made that he could be moved temporarily in order to undertake the PIP with a different team and supervisor. This seems to me to be entirely reasonable.
- [67]I have considered Mr Garanovic’s submissions regarding complaints that related to dates beyond the original end date of the PIP. I understand that Mr Garanovic thinks it unfair that matters raised after the original end date of the PIP have been considered by the decision-maker. However, it is clear to me that following a determination that the PIP had not been satisfactorily completed in the original timeframe, the PIP was extended. It was reasonable for the decision-maker to take into account events and conduct that occurred during the extended time period of the PIP. Such an approach cuts both ways. Any conduct of Mr Garanovic during the extended period which supported a conclusion that he had successfully met the requirements of the PIP would also be fair to take into account.
- [68]In any case, it seems to me that even if the PIP had been successfully completed, it would be incumbent upon the Respondent to consider fresh concerns raised regarding Mr Garanovic, particularly in circumstances where the issues of concern had only just been addressed throughout the PIP. I disagree that matters should not be able to be taken into consideration if they occur outside of the original timeframe for the PIP, however, it is important that, as happened here, there is an opportunity provided to respond to any new matters of concern.
- [69]Mr Garanovic has identified a part of the PIP where the date of the review period is listed as 22 February 2021 to 25 July 2021 instead of the original review period of 22 February 2021 to 11 July 2021. It appears to me that the review took place on or around 25 July 2021 as the PIP document is signed by Mr Hardwick and Ms Jacobs on 27 July 2021. I cannot find anything unreasonable about the date being accurately recorded on the document. I note that Mr Garanovic refused to sign this PIP document.
- [70]With regard to the content of the PIP, I note the handwritten commentary added by Mr Garanovic to demonstrate sections or statements he disagrees with. It appears to me that Mr Garanovic was present for the PIP review meeting where he was able to give his version of events and to disagree with the feedback being put forward. While it was important that Mr Garanovic have an opportunity to respond to matters raised in the PIP meetings and review, it was not incumbent upon Ms Jacob or Mr Hardwick to accept Mr Garanovic’s views. I also note that the PIP document contains a number of positive comments about Mr Garanovic.
- [71]The outcomes in a PIP are arrived at following a discussion between the parties. Elements of the PIP are noted as being met. Other expectations have not been met. I have reviewed all of the reports provided by nursing staff which were discussed as a part of the PIP and relied upon in determining that Mr Garanovic had not successfully met the expectations set out in the PIP. There is no evidence before me that the complaints or concerns raised regarding Mr Garanovic are falsified or have been made maliciously.
- [72]It appears that PIP review meetings occurred and Mr Garanovic was able to participate and provide his own version of events or feedback. Mr Garanovic has been provided with the emails outlining concerns and complaints and has clearly been given an opportunity to respond to these. I do not accept that the emails were sent at the behest of management or that there was a ‘witch hunt’ being conducted. It is not unusual in a busy workplace for concerns to be raised verbally and for a request to be made later on to provide the information in writing. It is also reasonable for the person leading the PIP process to seek feedback from an individual’s colleagues where appropriate in order to assess progress against performance expectations. The final PIP meeting noted positive feedback provided to Mr Garanovic including that he ‘had easily fitted in the nursing team on H2 South and was liked by the team members’. This description of a harmonious working relationship makes me think it unlikely that complaints or concerns raised were malicious.
- [73]I have read the notes of the meeting of 20 October 2021 where the PIP process was completed and it was communicated to Mr Garanovic that he had not met the performance expectations to the level required. Those notes reference fortnightly meetings held throughout the PIP and the matters raised with Mr Garanovic at both those fortnightly meetings and the final meeting. I note that at the meeting, Mr Garanovic ‘voiced he had no concerns with his clinical practice, stating he is not perfect (perfect only 95% of the time)’.
- [74]Mr Garanovic has been afforded an opportunity to show cause why the disciplinary finding should not be made. The decision-maker has considered Mr Garanovic’s responses and has determined that on the balance of probabilities, the allegation has been substantiated and that it gives rise to a ground for discipline. It is not unusual for there to be differing views about the matters subject of a show cause process. There is nothing in the material available to me which would serve to make that decision not fair and reasonable.
- [75]I note Mr Garanovic’s submissions about English being his fifth language and that he has not had issues raised regarding his communication previously. My strong impression from the material available to me is that concerns about communication were not directed at individuals being unable to understand Mr Garanovic or because of his spoken or written English skills. I have not identified any discriminatory aspect to the concerns being raised.
- [76]I find that it was fair and reasonable for Mr Brown to determine that the allegation was substantiated.
- [77]However, I note there is a discrepancy between the grounds for discipline set out in the show cause letter of 25 October 2022 and the final discipline finding communicated in the decision of 24 January 2023.
- [78]The decision of 24 January 2023 makes a finding of misconduct pursuant to s 187(1)(b) of the now repealed Public Service Act 2008 (Qld) (the repealed PS Act). The show cause letter sets out what, in my view, are more relevant and appropriate possible grounds for discipline when considering the substantiated allegation, that is either s 187(1)(a) or s 187(1)(g) of the repealed PS Act.
- [79]Deputy President Merrell explained the meaning of misconduct in Coleman v State of Queensland (Department of Education).[2] With regard to the use of the phrase misconduct under section 187(4)(a) the repealed PS Act, Merrell DP held:
In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.
- [80]The substance of this repealed section is now reflected in s 91(5)(a) of the new PS Act.
- [81]I find it was open to the decision-maker to determine on the balance of probabilities that Mr Garanovic failed to meet the agreed performance objectives of the Performance Improvement Process and that he did not demonstrate improved advanced communication skills and provide consistent clinical leadership to ensure comprehensive and safe patient care as required by a Clinical Nurse. However, having considered all of the material available to me, including Mr Garanovic’s responses and the substance of the complaints and concerns raised, I do not think it was fair and reasonable for the decision-maker to make a finding of misconduct. I am not satisfied that the material makes out that Mr Garanovic deliberately departed from accepted standards or demonstrated serious negligence to the point of indifference or that he abused the privilege and confidence enjoyed by a public service employee. That one outcome of the PIP was that Mr Garanovic was invited to remain at H2 South, albeit as an RN rather than a CN, does not support a finding of misconduct. It is possible that this was a typographical error in the disciplinary finding decision. In any case, the finding of misconduct should be set aside.
- [82]I uphold the decision in part, being that the allegation is substantiated. I substitute the disciplinary finding of misconduct with a finding that Mr Garanovic has, per s 91(1)(a) Public Sector Act 2022 (Qld),[3] engaged in repeated unsatisfactory performance or serous under performance of the employee’s duties, including for example, by performing duties carelessly, incompetently or inefficiently.
Order
- [83]For the foregoing reasons, I make the following order:
- The finding that Allegation one is substantiated is confirmed.
- The finding of misconduct is set aside and substituted with a finding per s 91(1)(a) of the Public Sector Act 2022 (Qld).