RY v State of Queensland (Queensland Health)
[2023] QIRC 208
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- Unreported Judgment
- RY v State of Queensland (Queensland Health)[2023] QIRC 208
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RY v State of Queensland (Queensland Health)[2023] QIRC 208
RY v State of Queensland (Queensland Health)[2023] QIRC 208
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | RY v State of Queensland (Queensland Health) [2023] QIRC 208 |
PARTIES: | RY (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2023/104 |
PROCEEDING: | Public Service Appeal – Appeal against a disciplinary decision |
DELIVERED ON: | 11 July 2023 |
HEARING DATE: | 11 July 2023 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a disciplinary decision – where three allegations against the Appellant were substantiated – whether decision to impose penalty was fair and reasonable – decision appealed against is confirmed EVIDENCE – MISCELLANEOUS MATTERS – NON-PUBLICATION OF EVIDENCE – PARTICULAR CASES – where principles of open justice apply – consideration of principles of open justice and circumstances where Commission may exercise discretion to suppress identifying information – identifying information suppressed |
LEGISLATION AND OTHER INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 562B, 562C Industrial Relations (Tribunals) Rules 2011 (Qld) r 97 Public Sector Act 2022 (Qld) s 134 |
CASES: | Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd [2021] QIRC 263 Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs) [2023] QIRC 167 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) J v L & A Services Pty Ltd (No 2) [1995] 2 Qd R 10 |
APPEARANCES: | Ms E Petering, Together Queensland, Industrial Union of Employees for the Appellant. Mr G Brown of the State of Queensland (Queensland Health) for the Respondent |
Reasons for Decision (ex tempore)
- [1]The Appellant (RY) is employed as an Administrative Officer by the State of Queensland (Queensland Health) ('the Respondent') at a regional health service. On 3 September 2022, the Appellant was employed in her administrative role within a specialist unit ('the unit'). As an administrative employee, the Appellant's duties did not include clinical tasks undertaken within the unit.
- [2]On 3 September 2022, the Appellant entered the room of a patient in the unit to perform an administrative task. While there, she engaged in conversation with a registered nurse who was about to perform a clinical procedure on a patient who was actively dying.
- [3]It is not controversial that the Appellant remained in the room after she had completed her administrative task. The Appellant moved to the head of the patient's bed and continued talking with the registered nurse while the nurse performed the clinical procedure. It is also not controversial that in this process, the Appellant donned some protective clothing ('PPE') in order to remain in the room during the procedure.
- [4]The Appellant's conduct came to the attention of other staff who observed it. It was subsequently reported and investigated. Both the Appellant and the registered nurse in question were interviewed as part of the investigation, along with other staff who were able to provide relevant witness testimony. The investigation spawned a disciplinary process. The Appellant was invited to respond by way of a show cause process to a number of allegations.
- [5]Three allegations were substantiated and ultimately found to warrant disciplinary action. The allegations relate to the Appellant's conduct in remaining in the patient’s room when she was not required to be there and continuing her discussion with the nurse. Her conduct was considered to contravene the Code of Conduct with respect to expectations around respect and dignity for patients.
- [6]It is important to note that the Appellant's conduct was not directed at the patient, it was not wilful or malicious, and it did not place the patient in any physical harm or state of discomfort.
- [7]On 8 March 2023, the Appellant was subsequently given an opportunity to show cause why she should not be the subject of disciplinary action in respect of the three substantiated allegations. The proposed disciplinary action that she was informed of was:
- a permanent management-initiated transfer at level; and
- a reprimand.
- [8]Relevantly to this appeal, the show cause letter at that time attached an extensive chronology of workplace events in which local management action was required to address the conduct of the Appellant. The events recorded dated back as far as July 2019. The chronology of events extends over 14 pages.
- [9]On 24 March 2023, the Appellant provided a comprehensive show cause response. Her response gave a clear indication of her remorse and contrition for her conduct. It demonstrated insight into the inappropriateness of her actions. The letter also extensively set out, by way of mitigation, a variety of personal, health and financial considerations, and ultimately proposed a less severe penalty of forfeiture or deferral of remuneration increase and a reprimand.
- [10]On 27 April 2023, the Appellant was advised by way of correspondence of the decision to impose the penalty of a permanent management-initiated transfer at level and a reprimand. It is this decision that the Appellant now seeks to be reviewed.
Principles of appeal
- [11]
- [12]Section 562B of the IR Act provides that the Commission must deal with an appeal by reviewing the decision appealed against. A review is not a fresh hearing on the merits in the form of a hearing de novo.[3]
- [13]Relevantly, a decision cannot be overturned on review merely because the decision-maker reviewing it would have decided the matter differently. There must be some objectively identifiable unfairness or unreasonableness in order for the Commission to disturb a decision.
- [14]The powers of the Commission granted by chapter 11 of the IR Act in respect of public service appeal reviews are limited. The Commission can either confirm a decision reviewed, set the decision aside and substitute it with a different decision, or set the decision aside and refer the matter back to the decision-maker for further consideration and with appropriate directions.[4]
Consideration
- [15]Pursuant to directions issued in this matter, both parties filed extensive written submissions with a number of attachments. Additionally, at the direction of the Commission, a short hearing was held where the parties were able to address their written submissions and to answer certain questions raised by the Commission arising from those submissions.
- [16]I do not intend to summarise the parties' submissions in these reasons. Suffice to say that the Respondent defends its decision by pointing to inter alia the gravity of the Appellant's conduct.
- [17]The Appellant contends that the penalty is excessive, having regard to her mitigating circumstances, and submits that these mitigating circumstances were not given adequate weight by the decision-maker. The Appellant also points to the long-term career and financial consequences that will arise from a disciplinary transfer.
- [18]It must be said that each party has made a compelling case in support of their respective positions. Reaching a conclusion in this appeal has been a difficult task. On one hand, it would seem that a moment of poor judgment by the Appellant has produced lasting adverse consequences for her employment. On the other hand her conduct in the presence of an actively dying patient falls well below what must be expected from hospital employees who interact with patients in any capacity.
- [19]The Appellant has submitted her conduct in lingering in the room was at the behest of the registered nurse who was also present. Having close regard to the evidence of the registered nurse that is available,[5] it does not seem that the registered nurse fully corroborates the assertion of the Appellant.
- [20]But even if it were the case that the Appellant was asked to remain by the registered nurse, it would not be unreasonable in my view to have expected that the Appellant should have independently and instinctively understood that she ought not to be present during the clinical procedure.
- [21]Further, far from the decision to remain being an impulsive one, the Appellant in fact went to the trouble of putting on PPE as an indication that she expected she would be remaining in the room during the clinical procedure. She must have (or at least should have) contemplated the inappropriateness of her actions during that time it took her to undertake this task.
- [22]Even in the absence of any explicit instruction informing her that she ought not to be present during clinical procedures at such a sensitive moment, one would think that absenting oneself from a room at that time would have been simple common sense. Instead, the Appellant lingered, observed the procedure, and chatted with the registered nurse about work issues. The Appellant's conduct reveals a significant error of judgment in that moment.
- [23]While the Appellant has made a compelling expression of contrition and insight, it was contained within broader submissions that included a wide range of complaints and allegations about a number of her colleagues. In particular, the Appellant's initial show cause response is telling of the extent to which she seeks to somehow attribute blame for her action on the conduct of others. Her subsequent, more contrite responses, appear only after the potential for serious consequence is revealed in the primary findings of conduct worthy of sanction.
- [24]Notwithstanding my conclusions in this regard, it is noted that the allegations that are the subject of this disciplinary decision relate to a short period of time on a single day. Every employee ought to be entitled to the benefit of an opportunity to gain insight from an error and to correct their conduct.
- [25]If the Appellant had a genuinely problem-free employment history, I could immediately conclude that the penalty in this matter was unfair. The difficulty for the Appellant is that she does not have a genuinely problem-free employment history. While it is true that the Appellant has never been the subject of any formal disciplinary or performance interventions by management, she has been the subject of an extraordinary number of informal interventions since 2019.
- [26]More concerningly, there is a clear theme to these matters that suggests that the Appellant routinely oversteps boundaries or imposes herself in situations (or on co-workers) in a way that causes distress for some of them. The documented list of complained of behaviours was not specifically challenged throughout the show cause process, although I fully accept that the Appellant's account of these incidents is not on the record and that it might, in a fuller consideration, diminish the impact of some of these matters. But even if only half of these incidents were accurately recorded, it is still a troubling trend in the Appellant's employment history.
- [27]The decision-maker took these historical matters into account as he was fairly entitled to do. In considering an appropriate penalty, employers should eschew a ‘one size fits all’ approach. Penalties for Code of Conduct breaches or other misconduct must be determined on the unique circumstances of the employee being penalised.
- [28]I am not without some sympathy for the Appellant. I note her history of previous employment includes work as a paramedic. Work in this field is notoriously traumatic, and I note that the Appellant has disclosed a diagnosis of complex post-traumatic stress disorder ('PTSD'). However, as much as I might feel some sympathy for the Appellant in this regard, she has had many opportunities since 2019 (through the course of local management action) to gain insight into how her conduct might be adversely affecting those around her or affecting her judgment. It would seem that she has not done this.
- [29]Further, quite apart from the Code of Conduct breaches regarding disrespectful conduct, I accept entirely the additional concerns of the Respondent about the Appellant exposing herself to trauma, and the risk this poses to her own health and safety. In circumstances where the Appellant has historically shown an inability to gain insight and to correct her behaviours, I agree that there is sufficient cause for this concern and the need to manage risk by way of removing the Appellant to a safer work environment.
- [30]For completeness, to the extent that the Appellant has asserted in this appeal that mitigating matters were not considered or not given proper weight, I am satisfied, having regard to each of the stages of the show cause process and the final decision which is now under review, that the decision-maker has given full recognition and consideration to all of the mitigating factors raised by the Appellant throughout the process.
- [31]In all of the circumstances, the conduct of the Appellant (which is conceded in every material aspect) warranted disciplinary action. Further, having regard to the conduct in question and the broader issues (including the Appellant's informal disciplinary history) I consider that the penalty imposed was open to the decision-maker, appropriate and, it follows, fair and reasonable.
Suppression of the Appellant's identity
- [32]For reasons discussed below, the Commission initiated a discussion with the parties at hearing about the suppression of the Appellant's name from the published decision. Both parties indicated no objection to suppression.
- [33]The relevant principles applied in exercising the discretion for suppression were recently summarised in Edgar v State of Queensland (Department of Children, Youth Justice and Multicultural Affairs),[6] where Deputy President Hartigan observed:
- [22]Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) ('the IR Rules') provides the Commission with a power to de-identify judgements and redact information for judgements if there is good reason to do so. Rule 97 relevantly provides as follows:
97 Publishing decisions etc.
- (1)The registrar may publish on the QIRC website –
- (a)a decision of the court, commission, or registrar; and
- (b)the notice of the making or the amended of a bargaining instrument
- (2)The registrar must, if the commission directs, publish an amendment of an instrument on the QIRC website.
Note -
For other documents the registrar must publish on the QIRC website, see sections 160, 215, 230 and 459 of the Act.
- (3)The court, commission or registrar may, in the public interest or for another reason the court, commission or registrar considers appropriate –
- (a)withhold publication of a document; or
- (b)modify a document, before publication, in a way that does not affect the essence of the document.
…
- [23]The Queensland Court of Appeal in the case of J v L & A Services Pty Ltd (No 2), ('J v L& A Services Pty Ltd') established six principles governing the exercise of discretion to issue suppression orders which are as follows:
- Although there is a public interest in avoiding and minimising disadvantages to private citizens from public activities, paramount public interest in the due administration of justice, freedom of speech, a free media and an open society require that court proceedings are able to be reported and discussed publicly.
- The public may be excluded and publicity prohibited when public access or publicity would frustrate the purpose of a court proceeding by preventing the effective enforcement of some substantive law and depriving the court's decision of practical utility…
- The permitted exceptions to the requirement of open justice are not based upon the premise that parties would be reasonably deterred from bringing court proceedings by an apprehension that public access or publicity would deprive the proceeding of practical utility, but upon the actual loss of utility which would occur, and the exceptions do not extend to proceedings which parties would be reasonably deterred from bringing if the utility of the proceedings would not be affected. Courts do not have access to the information needed to determine whether or not parties are reasonably deterred by openness or publicity from bringing particular kinds of proceedings; for example, sexual complaints. Legislatures are better equipped than courts to make informed decisions on such matters.
- No unnecessary restriction upon public access or publicity in respect of court proceedings is permissible.
- Different degrees of restraint are permissible for different purposes. Although the categories tend to coalesce, they are broadly as follows:
- (a)Exclusion of the public or a substantive restraint upon publicity is not permissible unless abstractly essential to the practical utility of a proceeding; for example, prosecutions for blackmail or proceedings for the legitimate protection of confidential information…
- (b)A limited exclusion or restraint is permissible if necessary to ensure that a proceeding is fair; for example, witnesses may be required to absent themselves from hearings, parts of jury trials may take place in the absence of the jury and limited or temporary restrictions on publicity may be imposed during the course of jury proceedings.
- (c)An incidental, procedural restriction is permissible if necessary in the interests of a party or witness in a particular proceeding; for example, identities of witnesses or details of particular activities which are not directly material such as engaging in covert law enforcement operations or providing information to police may be suppressed.
- ... information may not be withheld from the public merely to save a party or witness from loss of privacy, embarrassment, distress, financial harm, or other 'collateral disadvantage', to use the expression adopted in R. v. Tait. Additionally, when it is the interests of a party or a witness which is relied on as the basis for a proposed restraint, those considerations must be balanced against other factors, including the interests of others involved in the proceeding and others who may be affected. Open justice is non-discriminatory, whereas exceptions to the principle of open justice deny equal rights to the disputing litigants and provide a benefit to some litigants which is unavailable to members of the general public…
- [24]In Australian Rail, Tram and Bus Industry Union of Employees v Aurizon Operations Ltd ('Aurizon') the respondent sought to have the names of the individual workers who were involved in the dispute to be de-identified. The application was supported by the applicant union. His Honour, O'Connor VP relevantly held as follows:
- [40]The starting point in considering an application to suppress or to withhold names of witnesses or parties is a fundamental principle of open justice; 'that justice should not only be done but should manifestly and undoubtedly be seen to be done'. This is a central feature of the administration of justice under the common law.
- [41]The open justice principle operates not only as an overarching principle guiding judicial decision-making and various aspects of procedure, it also gives rise to a number of substantive open justice rules that, in the usual course of events, a court must follow. Such rules include: first, that judicial proceedings are conducted, and decisions pronounced, in 'open court'; second, that evidence is communicated publicly to those present in the court; and third, that nothing should be done to discourage the making of fair and accurate reports of judicial proceedings, including by the media.
- [42]However, the rules to which the open justice principle gives rise are not absolute. Whilst the principles of open justice will usually require the publication of the names of those involved in the proceedings, there are numerous statutory exceptions.
- [43]The Commission has the power to de-identify judgments and redact information from judgments if there is a good reason to do so. Rule 97 of the Industrial Relations (Tribunals) Rules 2011 (Qld) recognises that power.
…
- [44]It is accepted that the discretion to anonymise a decision might be exercised in favour of not identifying persons who are the victim of sexual assault or discrimination, children, or persons whose private financial affairs are relevant to a decision. It is also accepted that the discretion may be exercised in circumstances where it is necessary to avoid prejudice to the administration of justice in particular proceedings or to avoid some other relevant harm.
- [45]In my opinion, the application to withhold the names of the two workers can be best explained on the basis that in the absence of a restriction on publicity, damage will be caused to the individuals to such an extent and of such a kind as requiring some relief, in the interests of justice
- [46]As was observed by Mahoney J in John Fairfax Group Pty Ltd v The Local Court of New South Wales, these are the 'unacceptable' consequences that sometimes arise in litigation. Of course, as observed by Pincus JA in J v L A Services Pty Ltd (No 2), 'there is a balancing exercise involved, with an initial heavy weighting in favour of publicity – an exercise involving considerations of fairness'.
- [34]Noting the importance of strict adherence to the principles of open justice and the limited exceptions, I consider there is a compelling reason why the Appellant's name ought to be suppressed in this matter. While I wholly accept that embarrassment to a party is not a sufficient basis to deviate from the importance of open justice, I consider that the potential for stigmatisation of the Appellant in this matter goes beyond mere embarrassment.
- [35]The Appellant will remain employed by the Respondent. The Appellant's transfer to a non-clinical unit will not necessarily shield her from being a subject of discussion that will inevitably arise amongst staff of the Respondent once details of this appeal are made public. Some of those discussion might be well informed by reference to these reasons. Some of those discussion may not be so well informed.
- [36]I have already concluded that the penalty imposed is fair and reasonable. Had it not been for the series of informal management interventions involving the Appellant, I may have reached a different conclusion. The transfer of the Appellant's employment is a penalty that has an important remedial component. It will hopefully serve to cause the Appellant to reflect on the conduct that prompted the transfer. But importantly, it should also allow the Appellant to restore her standing with the Respondent and not unduly impede her in her employment into the future.
- [37]It would be a grave injustice if the publication of the Appellant's name led to her being unfairly and harmfully stigmatised. It would potentially make her employment untenable which would indirectly impose a greater penalty on the Appellant than was warranted.
- [38]While I accept that the risk of such harm to the Appellant might be low, the consequences if it does occur are sufficiently serious and unjust that non-publication is appropriate in my view.
- [39]For the reasons set out immediately above, pursuant to r 97(3) of the Industrial Relations (Tribunal) Rules 2011 (Qld), the Appellant's name will be supressed in any publication of this decision.
Order
- Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
- Pursuant to Rule 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 (Qld), the name of the Appellant in this appeal is not to be published.
Footnotes
[1] Industrial Relations Act 2016 (Qld) s 562B(3).
[2] Public Sector Act 2022 (Qld) s 134.
[3] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.
[4] Industrial Relations Act 2016 (Qld) s 562C(1).
[5] It appears in extracted form in some of the show cause correspondence contained the filed material.
[6] [2023] QIRC 167, [22] – [24]. Citations omitted.