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  4. Pusapati v State of Queensland (Queensland Health) - [2023] QIRC 134

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Pusapati v State of Queensland (Queensland Health)[2023] QIRC 134

Pusapati v State of Queensland (Queensland Health)[2023] QIRC 134

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Pusapati v State of Queensland (Queensland Health) [2023] QIRC 134

PARTIES: 

Pusapati, Narasa Raju

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/547

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

19 May 2023

HEARING DATE:

27 March 2023

MEMBER:

Power IC

HEARD AT:

Brisbane

ORDERS:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – notice to show cause letter issued – Public Sector Act 2022 (Qld) – allegation of misconduct – disciplinary finding – whether disciplinary finding was fair and reasonable – decision fair and reasonable

LEGISLATION:

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

Public Sector Act 2022 (Qld), ss 91, 289 and 324

Public Service Act 2008 (Qld), s 187

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Gilmour v Waddell & Ors [2019] QSC 170

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

APPEARANCES:

Mr J.I. Cosgrove and Mr H. Tan of the ASMOFQ, for the Appellant.

Ms J. Leveritt and Mr G. Cropley of Wide Bay Hospital and Health Service, for the Respondent.

Reasons for Decision

Introduction

  1. [1]
    Mr Narasa Raju Pusapati ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as the Clinical Director of Intensive Care Unit ('ICU'), Fraser Coast with the Wide Bay Hospital and Health Service ('WBHHS').
  1. [2]
    By letter dated 1 December 2021, the Appellant was issued with a notice to show cause to the following allegation:

Between the period February and October 2021, you have displayed inappropriate, offensive and aggressive behaviours towards subordinate medical officers within the Hervey Bay Hospital Intensive Care Unit.

  1. [3]
    On 14 January 2022, a response was provided through the Appellant's legal representative.
  1. [4]
    On 14 April 2022, Ms Robyn Bradley, Acting Chief Executive, WBHHS, issued a disciplinary finding letter dated 12 April 2022 to the Appellant advising that the allegation had been substantiated on the balance of probabilities ('the decision'). Ms Bradley further informed the Appellant that serious consideration was being given to impose the disciplinary action of removing the Appellant from the Clinical Director position and subsequential change of duties. 
  1. [5]
    The Appellant filed an appeal against the decision on 3 May 2022 in the Industrial Registry pursuant to ch 7[1] of the Public Service Act 2008 (Qld), prior to the commencement of the Public Sector Act 2022 ('PS Act').
  1. [6]
    The PS Act commenced operation on 1 March 2023. Pursuant to s 289 of the PS Act, the Public Service Act 2008 has been repealed. Section 324 of the PS Act provides the following:

(1) This section applies if—

  1. (a)
    before the commencement, a person appealed against a decision under the repealed Act,    section 194; and
  2. (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.

  1. [7]
    In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act.
  1. [8]
    On 24 February 2023, a mention was held following the Appellant's request for further time to determine if he wanted to provide oral submissions. The Appellant's representative  submitted that they would like a further opportunity to provide oral submissions and requested the Respondent make available schedule 7 and 8 of the Service Enhancement Review to the Appellant. The Respondent submitted that the documents were irrelevant to the appeal and contained confidential information. The parties agreed that the documents would be made available only to the Commission given the confidential nature of the contents. I have considered that material and am of the view that it does not assist in the determination of this matter. I have not attributed any weight to its contents in determining this appeal.
  1. [9]
    On 27 March 2023, parties provided their final oral submissions as requested by the Appellant. 

Appeal principles

  1. [10]
    The appeal must be decided by reviewing the decision appealed against.[2] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[3] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[4] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [11]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] The issue for determination is whether the decision was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [12]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [13]
    In the appeal notice, the Appellant outlines the following reasons for appeal:
  1. (a)
    the Respondent misinterpreted the Appellant's response to support their conclusion that the allegation against him has been substantiated;
  1. (b)
    the Respondent failed to either contact witnesses or properly interpret witness evidence and supporting documentation provided and further, the witness evidence does not support the findings made against the Appellant;
  1. (c)
    based on the information provided, a reasonable person acting in a reasonable way could not have made the findings the Respondent made against the Appellant;
  1. (d)
    the proposed disciplinary action is in excess of what should be taken against the Appellant if a reasonable person takes into account the surrounding circumstances relating to the allegation and findings; and
  1. (e)
    the findings have been made based on an interpretation of the Appellant's conduct and past behaviours which cannot be relied on or form part of the decision making process.

Submissions

  1. [14]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [15]
    In support of the appeal, the Appellant submits, in summary, that:
  1. (a)
    the disciplinary finding and proposed disciplinary action are grossly unfair and unjustified;
  1. (b)
    the allegation outlined is prejudiced and without reasonable basis, and is biased towards disregarding the relevant circumstances prior to and surrounding the incidents which refer to the Appellant's alleged tone of communication;
  1. (c)
    the allegation along with the findings and proposed disciplinary actions are part of a series of pre-planned, intimidatory bullying tactics wilfully perpetrated by Dr Scott Kitchener, Executive Director of Medical Services, who had explicitly threatened the ICU team of 'investigational action followed by employment action' a few months earlier;
  1. (d)
    these direct threats, vexatious allegations and findings are a deliberate attempt to harass the senior clinicians in Hervey Bay Hospital and deter them from holding the WBHHS accountable in a transparent manner regarding several longstanding administrative mismanagements that are directly causing patient harm, staff fatigue and burnout, as well as financial inefficiency;
  1. (e)
    that complaints regarding the tone of the Appellant's communication pertaining to non-urgent administrative matters in a highly stressful work environment have been taken out of the context of a workplace conflict which does not amount to bullying;
  1. (f)
    the allegation is designed to adversely fabricate repeated and persistent behaviours of the Appellant, and proclaim an adverse history on the Appellant's HR record, with the corresponding 'Show Cause Notices' timed to frustrate the Appellant's efforts in seeking and engaging with multiple external reviews of the administrative mismanagements;
  1. (g)
    the Appellant has made every effort at following due process in conflict resolution at the workplace and was led to believe that the matters were resolved and closed. However, there was no due process followed by the WBHHS in affording the Appellant the opportunity to explain his position and resolve any differences with either of the alleged complainants in accordance with Workplace conflict and change conversations, and Facilitation in the workplace; and
  1. (h)
    WBHHS is engaging in systematic bullying in the workplace through repeated and unreasonable behaviour directed towards a worker or a group of workers, creating a risk to health and safety.

Respondent's submissions

  1. [16]
    In response to the Appellant's submissions, the Respondent submits, in summary, that:
  1. (a)
    the disciplinary finding, on the balance of probabilities, is reasonably based on a demonstrated pattern of behaviour as perpetrated by the Appellant of repeated acts of inappropriate and improper communication;
  1. (b)
    it is open to the decision maker to determine that the extenuating circumstances outlined by the Appellant did not provide sufficient excuse for the conduct;
  1. (c)
    the Appellant's comments regarding Dr Kitchener are misguided as he is not the decision maker for the decision to undertake a disciplinary process, nor was he the decision maker in substantiating the allegation. Further, Dr Kitchener is not afforded the powers of the decision maker at any instance throughout this disciplinary process;
  1. (d)
    the context of inappropriate communication within the workplace is not relevant and does not excuse the conduct nor minimise the impact the conduct has on the workplace;
  1. (e)
    the decision maker has made no reference or claim that the Appellant was guilty of bullying the complainants;
  1. (f)
    the timing of the disciplinary process coincides with the allegations and the Appellant's conduct alone has triggered the disciplinary process;
  1. (g)
    the Appellant was provided natural justice by way of right of reply, allowing for the Appellant to explain his position;
  1. (h)
    the WBHHS is not engaging in systematic bullying of the ICU clinical team and is evident by the fact one of the complainants was a member of the ICU clinical team. The WBHHS is attempting to correct inappropriate conduct in the workplace and given the Appellant's ongoing inability to have any insight into his conduct, the Appellant continues to perpetrate acts of aggressive, inappropriate and improper communication in his official capacity; and
  1. (i)
    at no point during the disciplinary process has the Appellant's patient advocacy been in question.
  1. [17]
    The Respondent submits that, when determining the decision, the decision maker:
  1. (a)
    considered witness statements, which included a version of events by each of the complainants;
  1. (b)
    considered the length of service of the Appellant and any previous disciplinary history;
  1. (c)
    following consideration of all material, including the Appellant's response, deemed the allegations substantiated and the penalty imposed proportionate to the Appellant's misconduct which was a severe and continued departure from accepted standards of a public servant;
  1. (d)
    determined the Appellant would be cognisant of the expectations required as a Clinical Director of Intensive Care, Fraser Coast given his extensive experience and training; and
  1. (e)
    was cognisant of the risk of the Appellant remaining in a Clinical Director role within the WBHHS.
  1. [18]
    The Respondent made further submissions regarding the penalty proposed to be imposed on the Appellant, submitting that the penalty is reasonable, appropriate, and proportionate to the substantiated allegation and reflects the seriousness of the Appellant's actions.

Appellant's submissions in reply

  1. [19]
    In reply, the Appellant relies on his initial submissions and maintains that the WBHHS is prejudiced in its findings, is without reasonable basis and disregarded the relevant circumstances prior to and surrounding the incidents which refer to the Appellant's alleged tone of communication.
  1. [20]
    The Appellant submits that the disciplinary process has not been conducted in a fair manner. The Appellant argues that the WBHHS acted in a disproportionate way by serving multiple disciplinary notices upon the Appellant and other clinicians in the ICU team for matters that could have been resolved by discussion through conflict resolution and de-escalation processes at the workplace prescribed under the 'QLD Guidelines'.
  1. [21]
    The Appellant highlights that while the disciplinary process has provided the Appellant the opportunity to respond, it nevertheless violates the principles of natural justice as the content and substance of his responses 'appear to have been selectively ignored, baselessly discredited and unjustifiably misinterpreted to suit an evidently prejudiced narrative'. The Appellant further highlights that the Respondent has failed to consider the statements of independent recollection from other witnesses.
  1. [22]
    The Appellant further submits that:
  1. (a)
    the language used as alleged would reasonably be found to be reasonable when considered in the context of a busy, understaffed and high stakes clinical work environment, with additional pressure sustained from simultaneous administrative workloads with minimal administrative support;
  1. (b)
    his communication style with both patients, families and colleagues has been professional, humane, patient focussed and demonstrably well appreciated in the past;
  1. (c)
    he has maintained an excellent work culture under stressful work environments and is evidenced by several independent external review reports from 2019 to 2022, as well as staff and patient feedback; and
  1. (d)
    the stress placed on the Appellant's position means that the Appellant has had to manage an ICU that has been severely under resourced and strained despite two external reviews.
  1. [23]
    The Appellant submits the proposed disciplinary penalty is not reasonable as the proposed penalty is prejudiced and 'contrived primarily from a disciplinary record previously created by the WBHHS'.

Consideration

  1. [24]
    Consideration of an appeal of this kind requires a review of the decision to determine if the decision was fair and reasonable in the circumstances.
  1. [25]
    I firstly note that the decision appealed against relates to the disciplinary finding that the allegation outlined by the Respondent has been substantiated. The issue to be determined is whether the decision to substantiate the allegation and make the disciplinary finding was fair and reasonable on the balance of probabilities. The proposed disciplinary action outlined in the decision is not a 'decision', as no final determination has been made and does not form part of the decision under appeal. I note the Appellant's submissions that the proposed disciplinary action of removal from the position of Clinical Director - ICU and subsequent change of duties is in excess of what would be reasonable in the circumstances. Any determination regarding disciplinary penalty is an appealable decision in its own right and the Appellant may avail himself of that right should he be dissatisfied with the decision on disciplinary action. 
  1. [26]
    The allegation substantiated by the Respondent is as follows:

Between the period February and October 2021, you have displayed inappropriate, offensive and aggressive behaviours towards subordinate medical officers within the Hervey Bay Hospital Intensive Care Unit.

Allegation relating to Dr Blundell

  1. [27]
    The particulars of the allegation with respect to the allegation raised by Dr Blundell are as follows:
  1. On Tuesday 21 September 2021, Dr June Blundell, Registrar, WBHHS attended the Intensive Care Unit (ICU), Hervey Bay Hospital to discuss the ICU Pandemic Plan and to follow up on who within ICU would be taking the lead on liaising with the medical administration team on the pandemic response plan.
    1. Dr Blundell states, "As I opened the door, I saw Dr Anamika in her officer (sic) and knocked before walking in. I noted that she looked stressed and upset. Assuming she was busy, I assured her I would be brief and was just checking to see if she had an answer for me."
    2. Dr Blundell states, "Before she (Dr Ganuju) (Dr Anamika Ganju) could reply Dr Pusapati entered the room, clearly angry. I was leaning against one of the other desks rather than sitting down, mainly as I was not intending a long visit."
    3. Dr Blundell alleges, "Dr Raju stood close to me, giving the impression of standing over me, and reached out and grabbed my ID card, which was hanging at my waist. He (you) started speaking very aggressively, and appeared almost incoherent, stating Dr Brunde/1 you can't come into the ICU without ... "
    4. At this point Dr Ganju interrupted you and stated, "She's not here about that".
    5. Dr Blundell alleges you stated, "She's medical administration, she shouldn't be here".
    6. Dr Ganju reiterated, Dr Blundell was attending ICU on an unrelated issue to the cause of your distress and agitation.
    7. It was then explained to Dr Blundell, ICU had received a letter regarding the ICU and Clinical Service's Capability Framework (CSCF) capability.
    8. Dr Blundell states, she explained politely and empathetically, she was unaware of a letter being sent and was only there to talk about the pandemic plan.
    9. Dr Blundell alleges, you again became agitated and stated, "The premier has said there is no issue with the pandemic, so we don't need a pandemic plan".
    10. Dr Ganju then began to explain, she was attempting to transfer out all patients. Dr Blundell advised Dr Ganju, she understood and would return later to talk about the pandemic plan.
    11. Dr Blundell states, 'The only reason I felt safe was due to the presence; and protection by Dr Ganju who advocated for me effectively in this interaction. Dr Pusapati behaved in a manner which clearly could be perceived as intimidating and aggressive."
    12. "In hindsight, this behaviour is, in my opinion, extremely unbecoming in a professional, is intimidating and threatening. This has impacted on my ability to perform my role due to the way in which this limits my ability to walk into the ICU and feel safe whilst on a round of the departments."
    13. "Furthermore, it has led to an increased level of anxiety around the wards due to the level of uncertainty around whether or not it is safe for me to enter certain spaces. This has left me with less energy and resilience to effectively engage with and empathise with other units as well. I note that MOCA 5 states that I have the right to a safe workplace, and this incident has led me to feel unsafe."
    14. "My concern is that if he is prepared to treat myself in such a manner, when I report to the DMS and EDMS, then I have great concern regarding his behaviour to other junior doctors who have less protection. In a profession, and workplace, where medical culture is notorious for its harshness and toxicity, this behaviour to any other colleague is completely unacceptable. I believe myself to be a relatively resilient individual, however my concern is for those who have less power through the structures of the hospital -both professionally and culturally. I believe most of our Doctors trained overseas and local RMOs and registrars would be reluctant to bring forward any complaints and this type of interaction the ability to significantly impact on the mental health of both individuals and teams. "
  1. [28]
    The Appellant submits that the language used would reasonably be found in the context of a 'busy, understaffed and high stakes clinical work environment with additional pressured sustained from simultaneous administrative workloads with minimal Administrative Officer support.'
  1. [29]
    With respect to the allegations raised by Dr Blundell on 21 September 2021, the Appellant admitted that he made an incorrect assumption about the reason for Dr Blundell's attendance in Dr Ganju's office.  The Appellant submitted that he recognised Dr Blundell only as the Medical Administration Registrar and assumed that Dr Blundell was delegated by the DMS to attend to the urgent matter of the directive.
  1. [30]
    The Appellant admitted standing close to Dr Blundell although he denies that it was a conscious decision to intimidate Dr Blundell, referring to the cramped office space.
  1. [31]
    The Appellant does not recall reaching out and 'grabbing' Dr Blundell’s ID card and acknowledged that it was possible that he sought to identify Dr Blundell from her ID card as he was not confident of her name at the time.
  1. [32]
    The Appellant acknowledges that he was stressed and agitated about the directive at the time and cannot recall the precise wording of the conversation with Dr Blundell.
  1. [33]
    The Appellant expressed his apologies for his misunderstanding to Dr  Peter Stevenson, DMS, and requested that he convey his apologies to Dr Blundell. 
  1. [34]
    The Appellant submits that complaints regarding the tone of his communication have been taken out of the context of a workplace conflict (such as differences of opinion and expectations) which does not amount to bullying. I firstly note that 'bullying' does not form part of the allegation. Whilst I accept that the Appellant felt agitated due to his concerns about the directive, it was not unreasonable for Ms Bradley to determine that this agitation did not excuse the Appellant's conduct with regard to Dr Blundell. 
  1. [35]
    The decision demonstrated Ms Bradley's consideration of the Appellant's response to the allegation regarding Dr Blundell, stating the following:

You admit you were ''stressed'' and ''agitated'' and believed Dr Blundell was attending the ICU to discuss correspondence you had received from the HSCE that morning.

  • You considered the correspondence and directive to be ''clinically inappropriate and unimplementable.
  • You believe the rationale of the directive was to increase clinical compliance with restriction on the scope of ICU.
  • You state you were ''very distressed as complying with the directive in your view would incur significant avoidable costs and patient safety risks.''

I acknowledge you believe your communication and interaction was affected by the stress of receiving correspondence form the Chief Executive in relation to a reasonable direction to ensure the highest standard of patient safety within ICU. As a senior clinician within our health service, you are expected to lead by example and your professional conduct is to be of the highest standard. It also is also [sic] an expectation of leaders that you would have the appropriate understanding and capacity to communicate respectfully with staff without you becoming ‘agitated’ and ‘frustrated’.

  1. [36]
    The Appellant submits that the Respondent 'misinterpreted' his response to the show cause and failed to interpret the witness evidence and supporting documentation provided to them in his response. The Appellant contends that the witness evidence did not support the findings made against him.
  1. [37]
    The decision confirms that the witness evidence of Dr Ganju was considered by Ms Bradley:

…Additionally, Dr Blundell states, ''Dr Raju stood close to me, giving the impression of standing over me, and reached out and grabbed my ID card, which was hanging at my waits. He (you) started speaking very aggressively and appeared almost incoherent.'' A statement was obtained from Dr Ganju who states your mannerisms were ''Agitated and frustrated''.

  1. [38]
    In further considering Dr Ganju's statement, Ms Bradley notes that Dr Ganju did not recall seeing you grab Dr Blundell's ID Card. Ms Bradley considered the power differential between the Appellant and Dr Ganju and noted that Dr Ganju appeared to be non-committal in her recollection of the incident. In circumstances where Dr Blundell asserts that the Appellant grabbed her ID Card, where the Appellant did not deny the action, and where a witness in a more junior position to that of the Appellant does not recall seeing the action, it was not unreasonable for Ms Bradley to conclude that the action had occurred in the manner outlined by Dr Blundell.
  1. [39]
    The decision outlined Ms Bradley's consideration of the Appellant's submissions regarding interruptions with the clinical management of ICU, stating the following:
  1. 7.
    Dr Blundell was not attending ICU in relation to the reasonable direction received, and as such, the assertion of ''interruptions with the clinical management of ICU'' are not relevant. Dr Blundell was not delegated the responsibilities of dealing with the concerns raised by the directive received. I acknowledge you were mistaken to assume Dr Blundell was attending ICU to address the CSCF matter however, I have serious concerns that your immediate reaction when making the aforementioned assumption is to confront Dr Blundell in a stressed and agitated state. I have serious concerns about your emotional intelligence, leadership, engagement and appropriate communication and your ability to maintain a consistent and appropriate level of conduct within the workplace.
  1. [40]
    The Appellant contends that the Respondent is engaging in bullying against the Appellant and the ICU team. I firstly note that one of the complaints made against the Appellant came from a member of the ICU team. The matters raised by the Appellant with respect to the alleged conduct of the Respondent[6] do not assist in determining whether the particular allegation against the Appellant in this matter was fairly substantiated.
  1. [41]
    Many of the attachments to the Appellant's extensive submissions relate to concerns raised regarding the issue of CSCF services in the Hervey Bay Hospital. There are clearly differing views between the Appellant, other employees and the senior management, however the existence of this dispute does not mitigate the Appellant's conduct.
  1. [42]
    Ms Bradley considered the Appellant's submission that he had expressed his apologies for his misunderstanding to Dr Stevenson when he visited the ICU later that day and requested that he convey his apologies to Dr Blundell. The Appellant offered to send a formal written apology as well as a verbal apology to Dr Blundell and requested Dr Stevenson to advise him if Dr Blundell sought any such apology. The Appellant submits that he had  a few other interactions with Dr Blundell subsequently without incident and Dr Blundell's concerns were not apparent to him during these interactions. The decision outlined Ms Bradley's consideration of this submission:
  1. 9.
    Providing an apology to the Line Manager of an employee is not an appropriate apology. Dr Stevenson is not responsible for ensuring your apology is conveyed. Dr Blundell is based at the same WBHHS site as yourself and her email address is easily accessed through the Queensland Health Microsoft Outlook contacts. At no point did you attend Dr Blundell’s office or send Dr Blundell an email to apologise. This conveys to me you were not serious about apologising to Dr Blundell as no effort was made on your behalf to ensure Dr Blundell received your apology. Additionally, given the seriousness of the matter, it was identified an apology was not the appropriate resolution mechanism for this matter, noting your documented history of inappropriate communication with employees and stakeholders of WBHHS.
  1. 10.
    Dr Blundell has continued to interact with you in a professional manner after this altercation and I commend Dr Blundell for this. However, this does not expressly convey Dr Blundell’s assumed resolution of the matter. Dr Blundell has outlined in her statement the level of anxiety she now holds in returning to ICU and undertaking her ward rounds.
  1. [43]
    I am satisfied that the decision demonstrated reasonable consideration of the Appellant's attempt to apologise.
  1. [44]
    The submissions made by the Appellant regarding his adherence to the Qld Public Service values may be relevant to the Respondent in considering the appropriate disciplinary penalty, however they do not assist in determining if the disciplinary finding was fair and reasonable.

Allegations regarding concerns raised by Dr Shristi Shah

  1. [45]
    The particulars of the allegation with respect to the allegation raised by Dr Shah are as follows:
  1. Dr Shristi Shah Principal House Officer (PHO), Emergency Department, Hervey Bay Hospital worked in Intensive Care Unit under your supervision from June to September 2021.

Dr Shah states:

  1. "It is my belief that I am being unfairly treated by Dr Raju Pusapati, Clinical Director of ICU."
  2. "I have been facing this problem from the day of the interview for ICU position till date. And, I feel like Dr Raju has some animosity toward me for unknown reason."
  3. On Feb 2021, medical administration emailed me to come for an interview for PHO position at the ICU department to cover for a term to facilitate rotation of another doctor working in ICU. Dr Raju started the conversation by questioning me as to why I was there for the interview, claiming he had no knowledge of an available vacancy. During the hour-long interview, he asked multiple irrelevant questions and gave non logical explanations. The experience was quite harrowing, that it resulted in multiple sleepless night and extreme stress. Whilst, I had thought that I would not be offered a contract, I was selected for the job. I am still surprised for getting the job offer to work in ICU after that interview."
  4. "When I started to work in ICU, during the morning handover in one of the first few busy night as ICU PHO, Dr Raju shouted and scolded me in front of everyone for not writing the name of associated consultant name in admission form."
  5.  Having successfully completed my WBA (work based assessment), I am in the process of submitting application to get general registration from APHRA, possibly before this Christmas. This will enable me to apply for permanent residency and fellowship in anaesthesia, helping me to progress in my career. The application to APHRA involves getting WPRs from current and previous primary supervisors, Dr Raju Pusapati being one of them in my case.
  6. "Having got the WPR (work performance reports) completed with my current supervisor, I had sent an email to Dr Raju on Wednesday the 13th of October requesting if I could meet him in person to discuss. When I went in person after my shift at 5 pm on Thursday to potentially arrange for a time for the meeting, he asked me to leave the form and collect it the next morning from his room, which I found that the form had not been completed next day. "
  7. "This morning (Monday the 18th October), post night shift in ED, I again went to the ICU with the hope of getting 5 mins of his time to complete the WPR. When he came to the ICU an hour later, I reminded him of the form. He said that he will do that a bit later, so I stayed around in ICU and joined them in handover. All of a sudden and in the middle of the handover he told me in front of everyone that if I am waiting for that APHRA form then it will not be done today. Moreover, saying that he was not willing to be my supervisor, he claimed that he had no idea why he was my supervisor. Asking why I needed to complete the form with him, he questioned, is it that super urgent as if I am losing my registration tomorrow?"
  8. "I was completely shocked and am very much hurt by his response. The completion of WPR may not be urgent for him, but it is critical for me and for my professional development. I am wondering, why he consented to be my supervisor in the first place?From the onset, I was never asking him to complete the form right away. Rather I was seeking a few minutes of his time to complete the WPR with him and get genuine feedback, which I did not get in the previous one."
  9. "Having liked the hospital and enjoyed working in ICU elsewhere, I have signed a contract to work in Hervey Bay ICU for the next year. However, considering this kind of unprofessional behaviour of the Clinical Director of ICU, and his personal hatred towards me, I don't think I will be able to work in ICU next year. Right now, I am so much traumatized, that I fear approaching Dr Raju again to follow up for that WPR form."
  10. "I hope that you understand my situation, no one has the right to humiliate me, time and again. I feel that all the hard work that I have done in ICU has never been appreciated, rather I have been subjected to bullying and harassment for no reason, time and again."
  11. "The harassment is getting intolerable, and I have realised that I must stand for myself and inform the DMS. I believe this is the right thing to do at this stage."
  12. On the 21 November 2021, Dr Shah tendered her resignation, citing "due to unprofessional behaviour of one of the consultants (you) on multiple occasions while working at department of ICU, Hervey Bay Hospital. This has affected my mental well being and hence, I am not ready to work in the same environment for next year as well."
  13. HR Policy E13 Workplace Harassment, 7.1 Workplace harassment, states: 'A person is subject to workplace harassment if the person is subject to repeated behaviour, other than behaviour amounting to sexual harassment, by a person, including the person's employer, a co-worker or a group of co-workers, that a reasonable person would consider to be offensive, humiliating, intimidating or threatening.
  1. The AMA Code of Ethics 2004 Editorially Revised 2006. Revised 2016, provides a guide for expected standards of ethical behaviours within the medical profession. It is used to guide doctors' conduct in their relationships with patients, colleagues and society regardless of their professional roles. Specifically, section 3, 'The Doctor and the Profession,
  1. 3.1
    Professional conduct states:
  • 3.1.3 Recognise that your personal conduct may affect your reputation and that of your profession.
  1. 3.2
    Working with colleagues' states
  • '3.2.1 Treat your colleagues with respect and dignity.
  • 3.2.3 Refrain from undertaking actions such as making comments which may unfairly damage the reputation of a colleague.
  • 3.2.4 Treat those under your supervision with respect, care and patience.'
  1. [46]
    The Appellant submitted to the decision maker that whilst he is genuinely apologetic to Dr Shah if she felt unfairly treated by him during her time in ICU, he has never been discriminatory or consciously unreasonable in his interactions with her.
  1. [47]
    Ms Bradley states in the decision that she accepts that the Appellant is genuinely apologetic, however notes that she continues to have concerns with the limited level of insight displayed by the Appellant into his behaviours. Ms Bradley does not accept the submission that the Appellant's conduct was 'contextually appropriate' on the basis of Dr Shah's contention that he had 'shouted and scolded' her during handover. It was open to Ms Bradley to determine that there is no context in which this behaviour would be considered appropriate.
  1. [48]
    Ms Bradley determined that the Appellant's submissions with respect to the content of Dr Shah's handover was irrelevant to his conduct. Even if is accepted that Dr Shah's handover was deficient, it was open to Ms Bradley to determine that appropriate management and instruction would reasonably involve supportive correction rather than the conduct described by Dr Shah. 
  1. [49]
    It was open to Ms Bradley to accept Dr Shah's account of the interaction of 14 October 2021 on the basis that Dr Shah has no rationale to make false statements. In further support of Dr Shah's account, it is noted that she raised her concerns with the medical administration unit on 18 October 2021, outlining the issues she was having with the Appellant in completing the AHPRA documentation. Dr Shah stated :

Is it possible to apply to APHRA without this new WPR from ICU just with ED one? I tried everything from sending mail to meeting in person, I don’t think I will be able to get that from [the Appellant] soon. He even told me today that he never wanted to be my supervisor and does not know why he is my supervisor for AHPRA.

…

With what I faced today I won’t be able to follow up for that form any more. If you have any other option I will go for that. Hope you understand.

  1. [50]
    Dr Shah's subsequent resignation letter to the health service referred to the impact of the unprofessional behaviour of the Appellant on her health.
  1. [51]
    At best the Appellant's conduct showed complete indifference to Dr Shah's request and at worst appears to be a misuse of authority in a context involving a significant power-imbalance. As a senior practitioner the Appellant was undoubtedly aware of the importance of the AHPRA document and would have understood that Dr Shah had limited other options if he chose to continue to delay completing the form.
  1. [52]
    Ms Bradley considered the Appellant's submission regarding the context in which the conversation occurred with Dr Shah on 18 October 2021. This included a delayed arrival to work following multiple admissions throughout the weekend and his determination to avoid further delay in the morning handover from the night registrar. Ms Bradley determined that irrespective of the preceding circumstances it was expected that he communicate 'suitably and with sensitivity' towards an employee's circumstances. This was a reasonable determination.
  1. [53]
    In outlining her findings in the decision, Ms Bradley stated:

I continue to have concerns with your insight into how your communication is received and negatively affects those you interact with. This is the third formal process which has been undertaken as a result of your communication style and conduct, and on review of the previous process I have seen an ongoing pattern of behaviours with no evidence to support an improvement. There is no context in which inappropriate conduct or communication is acceptable or in line with the Code of Conduct for the Queensland Public Service or AMA Code of Ethics.

  1. [54]
    Ms Bradley determined that on the basis of her findings in relation to the allegation, the Appellant was guilty of misconduct[7], that is inappropriate or improper conduct in an official capacity between February and October 2021.
  1. [55]
    In Coleman v State of Queensland (Department of Education)[8] Deputy President Merrell considered the definition of misconduct:

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.[9]

  1. [56]
    The behaviour substantiated by Ms Bradley refers to a conduct that can reasonably be described as a deliberate departure from accepted standards in that it was inappropriate and offensive behaviour towards subordinate medical officers over an extensive period of time. Accordingly, it was open to the decision maker to determine that the Appellant's conduct constituted misconduct.
  1. [57]
    The essence of the Appellant's appeal is twofold. Firstly, to the extent that the conduct is admitted, the Appellant contends the conduct was a result of his workplace environment. Secondly, the Appellant contends that the allegations have been contrived by the employer because of his criticism of the broader workplace issues.
  1. [58]
    It is clear from the Appellant's submissions that he is frustrated with many aspects of his workplace. Any examination of those matters are well beyond the scope of this appeal. Decisions with respect to the WBHHS policies, strategic directions, funding and other governance or managerial matters do not excuse the Appellant's conduct. I accept that the Appellant's role is demanding and at times the cause of significant stress. However, whilst the Appellant submits that his conduct should be considered in the context of the 'busy, understaffed and high stakes clinical work environment', the reality is that his work colleagues also work in the same environment. These circumstances do not excuse the inappropriate manner in which the Appellant behaved towards subordinate medical officers.  
  1. [59]
    The allegation that the disciplinary finding has been contrived as a consequence of the Appellant's criticism of various workplace issues is not supported by evidence.
  1. [60]
    As outlined above, it was reasonable for the decision maker to determine that the context in which the conduct occurred did not mitigate the behaviour, particularly given the Appellant's history with respect to the use of inappropriate communication in the workplace. In circumstances where the Appellant received a non-disciplinary warning on 27 February 2020 for inappropriate, inflammatory and accusatory language, it was open to the decision maker to determine that the Appellant has not attempted to correct his inappropriate communication.
  1. [61]
    The conclusion that the stressful environment did not mitigate the behaviour was fair and reasonable on the basis that all hospital employees will be exposed to a level of stress, however it is incumbent upon each employee to conduct themselves appropriately.  The employer has a duty to ensure that employees working alongside the Appellant have access to a safe working environment and the Appellant's actions undermine that safety. With respect to the second contention, there is simply no evidence before me that the employer made this disciplinary finding because of other actions undertaken by the Appellant. The presence of other disagreements does not render this finding unfair or unreasonable.
  1. [62]
    The Appellant made submissions that the matters could have been resolved by discussion through conflict resolution and de-escalation processes. The difficulty with this submission is that it assumes that the conduct was not serious and ignores the Appellant's history of problematic communication with his colleagues. In these circumstances it was fair and reasonable for the Respondent to determine that a disciplinary process was warranted.
  1. [63]
    Whilst the Appellant submitted that his communication style has been 'professional, humane, patient focussed', it was open to Ms Bradley on the evidence of the Appellant's communication style with Dr Blundell and Dr Shah to not accept this submission.
  1. [64]
    I am not persuaded by the Appellant's submission that the substance of his response was 'selectively ignored, baselessly discredited and unsuitably misinterpreted'. In oral submissions the Appellant's representative submitted that the alleged failure to properly consider the Appellant's response amounted to a failure to provide procedural fairness. In the 15 page decision, Ms Bradley outlines detailed consideration of the submissions made by the Appellant's legal representative. Simply because the decision maker did not accept the Appellant's submissions does not indicate that they were not considered appropriately.
  1. [65]
    I accept the ASMOFQ submission that the Appellant has been a leading advocate to improve clinical services at the WBHHS whilst managing under significant immense pressure due to staff and bed shortages. Acknowledging this situation however does not permit the Appellant to engage with his colleagues and subordinate employees in an inappropriate or aggressive manner.
  1. [66]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[10] 

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.[11]

  1. [67]
    Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances.
  1. [68]
    Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances.

Order

  1. [69]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Equivalent provision in the Public Sector Act 2022 (Qld) is ch 3.

[2] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[4] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). .

[5] IR Act s 562B(3).

[6] Allegations such as such as insulting and offensive comments, unjustified criticism, exclusion from workplace activities, not sharing information, unreasonable timelines, spreading misinformation, and setting tasks not equal to a person's skill level.

[7] pursuant to s 187(1)(b) of the Public Service Act 2008 (Qld), now s 91(1)(b) of the PS Act.

[8] [2020] QIRC 032.

[9] Ibid [62].

[10] [2019] QSC 170.

[11] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Pusapati v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Pusapati v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 134

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    19 May 2023

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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
2 citations
Jump To
Cite 1 - (1995) 183 CLR 245
Cite 2 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
2 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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