O'Hearn v State of Queensland (Queensland Health)
[2023] QIRC 283
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- Unreported Judgment
- O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283
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O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283
O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283 |
PARTIES: | O'Hearn, William (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO.: | PSA/2022/974 |
PROCEEDING: | Public Sector Appeal |
DELIVERED ON: | 29 September 2023 |
MEMBER: | Power IC |
HEARD AT: | On the papers |
ORDER: | 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 Sector Appeal – notice to show cause letter issued – Public Sector Act 2022 (Qld) – allegation of misconduct – disciplinary finding – whether disciplinary finding was fair and reasonable – disciplinary action – whether disciplinary action was fair and reasonable – decision fair and reasonable |
LEGISLATION: | Crime and Corruption Act 2001 (Qld) Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Interest Disclosure Act 2010 (Qld), s 12, 13 and 41 Public Service Act 2008 (Qld), ch 7, s 194 Public Sector Act 2022 (Qld), ch 3, ss 129, 131, and 132 |
CASES: | AW v State of Queensland (Department of Environment and Science) [2021] QIRC 036 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 Borkowski v State of Queensland (Queensland Corrective Services [2021] QIRC 330 Briginshaw v Briginshaw (1938) 60 CLR 336 Gilmour v Waddell & Ors [2019] QSC 170 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Jelacic v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 384 Magor v State of Queensland (Queensland Corrective Services) [2022] QIRC 035 Nash v State of Queensland (Queensland Corrective Services) [2021] QIRC 345 Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159 |
Reasons for Decision
Introduction
- [1]Mr William O'Hearn ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Assistant in Nursing, Central Sterilising Department at the Gold Coast University Hospital within the Gold Coast Hospital and Health Service ('GCHHS').
- [2]By letter dated 30 June 2022, the Respondent issued the Appellant with a show cause notice, requesting the Appellant show cause in relation to four allegations.
- [3]The Appellant provided a response to the show cause notice on 17 August 2022 and on 2 September 2022, Mr Grant Brown, Executive Director, People and Operations, GCHHS, issued the Appellant with a disciplinary finding decision, substantiating Allegations One, Two and Four and partially substantiating Allegation Three. Mr Brown determined that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. The Appellant was advised that serious consideration was being given to imposing the disciplinary action of:
- a temporary transfer at level to the position Assistant in Nursing, Central Sterilising Department at Robina Hospital with consequential change to the Appellant's terms and conditions of employment (continuous shift work to shift work) for a period of six months; and
- a reprimand.
- [4]The Appellant was provided with seven days to provide a response as to why the proposed disciplinary action should not be taken. No response was provided by the Appellant.
- [5]By letter dated 17 October 2022, the Appellant was issued with a disciplinary action decision wherein Mr Brown determined to impose the disciplinary action outlined above at [3].
- [6]By appeal notice filed on 7 November 2022, the Appellant appealed the decision of Mr Brown dated 17 October 2022 to 'substantiate the findings against the Appellant' ('the decision').
- [7]The Appellant filed an appeal against the decision in the Industrial Registry prior to the commencement of the Public Sector Act 2022 (Qld) ('PS Act'). In accordance with s 324, the appeal must be decided under chp 3, pt 10 of the PS Act.
- [8]Section 131 of the PS Act outlines the categories of decision against which an appeal may be made. Section 131(1)(c) of the PS Act provides that an appeal may be made against 'a disciplinary decision'.
Appeal principles
- [9]The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the IR Act is not by way of rehearing,[3] but involves a review of the decision arrived at and the associated decision making process.
- [10]The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.
What decisions can the Industrial Commissioner make?
- [11]In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
- confirm the decision appealed against; or
- set the decision aside and substitute another decision; or
- 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
- [12]The Appellant appeals against the decision on the basis that the finding was unreasonable, contending that:
- the decision was unreasonable in consideration of the contextual circumstances that preceded each of the allegations;
- the Appellant is not guilty of the alleged misconduct; and
- the Respondent has preferred evidence unfavourable to the Appellant in drawing the conclusion to substantiate the allegations.
Respondent's submissions
- [13]The Respondent raises a jurisdictional objection at the outset, submitting that any appeal against Mr Brown's disciplinary finding decision dated 2 September 2022 and provided to the Appellant on 14 September 2022 was required to be filed by 5 October 2022. The Appellant submits that the appeal was not filed until 7 November 2022, some 33 days late. The Respondent submits that the Appellant was expressly advised that he was required to file any appeal against that decision within 21 days.
- [14]The Respondent submits that the Appellant has failed to provide an explanation for the reason he filed the appeal out of time and requests that the Commission should decline to hear the appeal on the basis it is out of time.
- [15]The Respondent otherwise contends that the decision was fair and reasonable, submitting, in summary, that:
- that the evidence demonstrates repeated inappropriate conduct and this repeated conduct was witnessed and contemporaneously documented by numerous staff members;
- within the Appellant's response to the show cause notice, he acknowledged that the conversations occurred, however, failed to provide any contextual information regarding how he engaged in these conversations. As a result, it was found that the Appellant's version of events was distinctly different to those provided by the various witnesses; and
- the Appellant was afforded with procedural fairness and natural justice.
- [16]The Respondent further submits that Mr Brown:
- carefully considered the Appellant's response and weighed it against the information provided by the various complainants regarding each allegation and made a decision regarding each allegation on the balance of probabilities;
- on a review of the evidence, determined that the evidence provided by the numerous witnesses was consistently documented, and therefore, on the balance of probabilities, favoured this evidence over the contradictory response provided by the Appellant;
- in considering the appropriateness of the disciplinary action, gave consideration to the Briginshaw principles.[5] Mr Brown balanced the evidence that was provided by the numerous witnesses as well as the Appellant along with the penalties that were being proposed;
- considered the Appellant's human rights may be limited or interfered with by the decision, however, was of the view that the decision was justified and reasonable in the circumstances.
Appellant's submissions
- [17]In response to the Respondent's jurisdictional objection regarding the appeal against the disciplinary finding being filed out of time, the Appellant submits that the Respondent fails to account for the two elements of the disciplinary decision being appealed. The first, being the overall substantiation of the allegations and the second being the overall proportionality of the discipline decision.
- [18]The Appellant submits that the decision cannot be dismissed outright as the decision on disciplinary action was not filed out of time, and that to do so will mean that any decision of this nature would likely be regarded as procedurally deficient in accordance with the principles of natural justice.
- [19]The Appellant submits that both the decision to substantiate the allegations and the decision regarding the disciplinary action to be imposed both are appealable and further, that:
… it does not appear, pursuant to any relevant section of the PS Act, Industrial Relations Act 2016 (QLD) ('IR Act') or Public Service Commission Discipline Directive 14/20 that Parliament intended for the two substantive types of appeal to be mutually exclusive and that a person would be thereby precluded from having the ability to appeal a substantiation decision ex post facto in the course of appealing a penalty decision.
- [20]The Appellant submits that the strict interpretation of the Respondent undermines the intent and purpose of the provision, which is clear in that it allows for both decisions to be appealable at the end of the appeal process.
- [21]The Appellant highlights that the authorities of the Commission on this issue are conflicting, however, notes that there have been many matters before the Commission where both the substantiation of allegations and overall proportionality have been determined simultaneously.[6]
- [22]In respect of the decision, the Appellant denies each of the allegations in its entirety and submits that the disciplinary process undertaken was in direct reprisal of his comments made around workplace rights. The Appellant submits that he gave clear and logical explanations as to how or why others may have unreasonably drawn adverse conclusions from the situation. The Appellant's representative further submits that his demeanour can be explained by the following:
a. It was a heated discussion regarding industrial rights, by which the Appellant has a keen interest and considerable passion for the subject matter of the respective discussion;
b. He was required to speak loudly due to the environment in which the meeting was taking place (sterilization room with loud machinery);
c. He and other staff were required to wear face masks due to on-going COVID-19 restrictions and thereby certain body language (i.e use of arms) was required and may have been misinterpreted to be argumentative or aggressive;
d. By virtue of being required to wear a mask, the Appellant was hot and his complexion may have been affected by the heat;
e. Additionally, by virtue of wearing a face mask, others could not have reasonably claimed to have seen the entirety of the Appellant's face in the course of the meeting nor had the ability to hear the Appellant clearly without him raising his speaking volume to compensate for the muffle caused by the mask; and
f. The evidence used by the Respondent in the course of the substantiation of the allegations did not support the allegations against the Appellant and on that basis was unreasonable.
- [23]The Appellant submits that the above factors ought to have been given considerably more weight by the Respondent and that in failing to do so, both elements of the decision appealed against were unfair and unreasonable pursuant to the principles affirmed in Briginshaw.
- [24]The Appellant submits that the decision to transfer him to a different hospital was not proportionate to the conduct alleged. The Appellant submits that given he has not previously had similar behavioural issues, the proportionate decision should be the taking of management action by way of offering the Appellant the appropriate training and/or positive performance management strategies.
Consideration
- [25]The first consideration in this matter is whether the Appellant is entitled to appeal the disciplinary findings. The Respondent submits that an appeal of the decision on disciplinary findings was required to have been filed within the statutory 21-day time period following that decision. It is not in dispute that an appeal is able to be filed against a decision on disciplinary findings within 21 days of that decision. The issue in dispute is whether disciplinary findings may be challenged as part of an appeal against disciplinary action.
- [26]The Appellant contends that a decision on disciplinary findings may be appealed at the same time as the decision on disciplinary action. There is no dispute between the parties that the appeal against the decision on disciplinary action in this matter was filed within the statutory timeframe.
- [27]Section 131 of the PS Act outlines decisions against which appeals may be made:
131 Decisions against which appeals may be made
(1) An appeal may be made against the following decisions—
- a conversion decision;
- a directive decision;
- a disciplinary decision;
- a fair treatment decision;
- a promotion decision;
- a suspension without pay decision;
- a transfer decision;
- a work performance direction decision;
- a decision about anything else against which another Act allows a person to appeal.
- [28]It is clear that that an appeal may be made against 'a disciplinary decision' in accordance with s 131(c).
- [29]Section 129 of the PS Act defines a 'disciplinary decision' as follows:
disciplinary decision means a decision under a disciplinary law to discipline:
- a person (other than by termination of employment), including the action taken in disciplining the person; or
- a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.
- [30]Section 132 of the PS Act outlines decisions against which appeals can not be made:
132 Decision against which appeals can not be made
(4) A person can not appeal against a fair treatment decision
...
- made under chapter 3, part 8, division 3, other than a finding under section 91 that a disciplinary ground exists for the person; or
[emphasis added]
- [31]In consideration of s 132(4)(b) of the PS Act, a decision on disciplinary findings, that is that a disciplinary ground exists, can be appealed as an appeal against a fair treatment decision.
- [32]The Discipline Directive (05/23) confirms that an employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act. Accordingly, it is open to an employee to file an appeal against a decision on disciplinary findings within 21 days of that decision. It is not necessary to await determination of any proposed disciplinary action. I note that in the correspondence confirming the disciplinary findings in this matter the Respondent advised the Appellant of his appeal rights in relation to that decision. The Appellant did not file an appeal of the decision to substantiate the allegations and make disciplinary findings.
- [33]The Respondent proceeded to determine the disciplinary action and informed the Appellant of this decision on 17 October 2022.
- [34]The Appellant filed an appeal against this decision, disputing both the disciplinary findings and disciplinary action.
- [35]As outlined at [29], s 129 of the PS Act defines a disciplinary decision as a decision under a disciplinary law to discipline a person 'including the action taken in disciplining the person.' A decision under a disciplinary law to discipline a person necessarily requires a disciplinary finding to be made. The words 'including the action taken in disciplining' can reasonably be taken to refer to disciplinary action that may be subsequently imposed following a disciplinary finding.
- [36]The construction of the statutory definition is that a disciplinary decision is a decision to discipline a person 'including' the disciplinary action. As the disciplinary action is included in the latter part of the definition, one could reasonably interpret the words 'a decision under a disciplinary law to discipline' as referring to the disciplinary finding.
- [37]The Directive is also instructive in assessing the meaning of a 'disciplinary decision'. Clause 9 of the Directive outlines the process that must be complied with in disciplining a public sector employee in accordance with s 98 of the PS Act. The heading of cl 9 is 'Discipline process' and the section proceeds to outline the process of deciding on disciplinary findings prior to the process of deciding on disciplinary action.
- [38]Having considered the statutory construction of s 129 and s 131, it seems to me that the ability to file a disciplinary appeal against the disciplinary findings in accordance with s 131(1)(c) is not curtailed simply because an avenue exists to appeal a decision on disciplinary findings as a fair treatment appeal pursuant to s 132(4)(b). To determine that a decision on disciplinary findings is not a ‘disciplinary decision’ for the purposes of s 131(1)(c) would be to ignore the ordinary meaning of the words in the provision.
- [39]In a practical sense, an appeal of the decision on disciplinary action necessarily requires an assessment of whether the disciplinary findings were fair and reasonable in circumstances where it is alleged that such findings were otherwise. It is also necessary to consider the findings when determining the proportionality of disciplinary action.
- [40]In consideration of s 131(1)(c) of the PS Act and the Directive, I am of the view that a disciplinary decision appeal under this section may relate to a decision on disciplinary findings and on disciplinary action. I make this assessment on the basis that the definition of 'disciplinary decision' includes a decision to discipline which require disciplinary findings to be made. I accept the Appellant's submissions that decisions of the Commission on this point have been conflicting, although I note that the cases cited by both parties have not addressed the jurisdictional issue directly. One example of a matter in which it was determined that a disciplinary appeal can be accepted against a decision on disciplinary findings and disciplinary action concurrently is that of Deputy President Merrell in Borkowski v State of Queensland (Queensland Corrective Services)[7] .
- [41]In the matter subject of this appeal, the appeal notice was filed within the 21-day statutory timeframe and hence may proceed as an appeal against the disciplinary findings and disciplinary action.
Appeal against decision on disciplinary findings
- [42]The Respondent issued the Appellant with a notice to show cause as to why disciplinary findings should not be made against him in relation to the allegations outlined at [2].
Allegation One
On 30 May 2022, at approximately 2:30pm, you failed to treat Mr Simon Vander Kruik, Nurse Unit Manager, Central Sterilising Department with courtesy and respect when you engaged in a conversation during a handover meeting in an argumentative and combative manner.
…
- [43]The decision maker considered the Appellant's response and determined that Allegation One is substantiated on the balance of probabilities. The Respondent noted that there was no dispute that a conversation occurred between the Appellant and Mr Vander Kruik during a handover meeting. The decision maker accepted the Appellant's submissions that raising concerns regarding legislative provisions does not breach the Code of Conduct but determined that the allegation related to the manner in which the subject was raised rather than the subject matter of the conversation.
- [44]In circumstances where the Appellant's version of the event was significantly different to the version provided by Mr Vander Kruik, Ms Hall and Ms Oberhardt, it was open to the decision maker to prefer the accounts of the other employees. Having accepted that the Appellant engaged in the conversation in a manner that was louder and more aggressive than necessary, it was reasonable for the decision maker to determine that the Appellant's behaviour breached cl 1.5 and 3.1 of the Code of Conduct. Accordingly, it was open to determine that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
Allegation Two.
On 30 May 2022, at 2:30pm, you failed to ensure that your actions did not adversely affect the health and safety of your colleagues, namely Ms Amy Hall, Registered Nurse, Central Sterilising Department and Ms Cassandra Oberhardt, Registered Nurse, Central Sterilising Department when you displayed inappropriate behaviour during a handover meeting.
…
- [45]The Appellant submits that 'nothing in the conversation comes anywhere near making a workplace unsafe' however, the decision maker reasonably considered that work health and safety concerns can be both physical and psychological in nature.
- [46]The Appellant's submission that weight ought to have been given to the following mitigating factors:
- the Appellant was required to speak loudly due to the environment in which the meeting was taking place (sterilization room with loud machinery);
- the Appellant and other staff were required to use face masks due to on-going COVID-19 restrictions and certain body language, such as the use of arms, was required which may have led to misinterpretation to be argumentative or aggressive behaviour;
- the Appellant was hot as a consequence of wearing a mask and his complexion may have been affected by the heat; and
- Others could not have reasonably claimed to see the entirety of the Appellant's face in the course of the meeting nor had the ability to hear the Appellant clearly without him raising his speaking volume to compensate for the muffle caused by the mask.
- [47]As with allegation one, the decision maker determined that it was not the action of raising concerns regarding industrial or legislative provisions that was in issue, rather it was the inappropriate manner in which the concerns were raised. The file note provided by Ms Hall described the situation as extremely hostile and extremely uncomfortable and unprofessional. Ms Hall described the Appellant as yelling, raising his voice and going visibly red in the face whilst doing so. Ms Hall described the Appellant as appearing 'extremely agitated as evidenced by his finger pointing and the rapid hand movements, and tone of voice was extremely argumentative and combative'. Ms Hall noted in her file note that she felt threatened and unsafe due to the unpredictable behaviour and did not feel safe on shift around the Appellant if this behaviour was to continue. In circumstances where other staff were also communicating through face masks, it was open to the decision maker to give limited weight to the submission that the Appellant's behaviour had been misinterpreted as aggressive when it was simply a consequence of wearing a face mask. It was open to the decision maker to accept Ms Hall's account of the conversation, particularly in circumstances where that account was broadly supported by the information provided by Ms Oberhardt.
- [48]The decision maker acknowledged the Appellant had provided his written version of events regarding the conversation, however noted that no reference was made to how the conversation occurred in terms of pitch, tone and volume. In circumstances where the evidence of Ms Hall and Ms Oberhardt indicated that their safety in the workplace was impacted by the Appellant's conduct during the handover, it was open to the decision make to determine that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
Allegation Three
On 30 May 2022, at approximately 3:10pm, you failed to treat Mr Simon Vander Kruik, Nurse Unit Manager, Central Sterilising Department with courtesy and respect when you engaged in a conversation during a handover meeting in an argumentative and combative manner.
…
- [49]The decision maker partially substantiated this allegation on the basis that the Appellant's version of events was significantly different to that outlined in Mr Vander Kruik's file note with respect to the alleged use of inappropriate language. The decision maker reasonably considered that they were unable to determine if the Appellant's conduct was undertaken in an argumentative and combative manner.
- [50]The decision maker did however accept that the Appellant's comments such as ''[you] told [Mr Vander Kruik] in the meeting [you] don't want to talk about it. [You] will make [your] formal complaint in writing'' and ''[Mr Vander Kruik] can't just run an election because you don't like who got elected'' during the conversation did not show Mr Vander Kruik courtesy and respect.
- [51]In my view the Appellant's comments are not inherently combative. However, in the context of Mr Vander Kruik approaching the Appellant with the intention of advising him that the HRS election process was not required to be conducted until later in the year, the response from the Appellant was unnecessarily antagonistic. The intention of Mr Vander Kruik was to advise the Appellant that his earlier comments were mistaken, and that the Appellant was correct, however the Appellant's response did not allow the matter to be resolved. Behaviour such as that of the Appellant in this situation have the impact of exacerbating workplace issues rather than allowing such issues to resolve amicably at a local level. It was open to the decision maker to determine that the Appellant's comments were lacking in courtesy and respect.
Allegation four
On 2 June 2022, at approximately 2:31pm, you failed to treat Ms Ellen Judd, Nursing Director, Theatre Management with courtesy and respect when you engaged in a conversation in an argumentative and combative manner.
…
- [52]Ms Judd approached the Appellant to have a conversation as a welfare check following concerns raised about the Appellant's recent behaviour by his manager Mr Vander Kruik. Ms Judd recorded the conversation after advising the Appellant of her intention to do so, and made a file note based on the recording. The decision maker considered comments made by the Appellant during the conversation including the following:
That's ok you put it in writing, and I will sue for defamation, you put something that is not true, she is checking that I am ok because she is going to pretend to do something, the reality is you get a stat dect (sic) of what I have done date and time, what I said word for word and I will dispute it.
- [53]It was reasonable for the decision maker to determine that local management action would not be employed in circumstances where the Appellant's behaviour was not respectful or appropriate. Accordingly, it was open to the decision maker to determine that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, specifically cl 1.5 and 3.1 of the Code of Conduct.
- [54]Failing to show courtesy and respect to colleagues is a clear breach of the requirement under the Code of Conduct to demonstrate a high standard of workplace behaviour and personal conduct. The issue that formed the basis of the disagreement between the Appellant and other employees could have been resolved quite simply had the Appellant acted in a respectful manner. The Appellant had an absolute right to raise his concerns about the HSR election proposal, however the manner in which he did was not appropriate. The health and safety of all employees can only be protected if matters in disagreement are discussed in a respectful and courteous manner.
- [55]The Appellant submits that the disciplinary process were reprisals for his ongoing attempts to ensure that the Respondent is compliant with industrial instruments and relevant legislative provisions. The Appellant specifically referred to challenging the Respondent on a number of issues including where roster changes had been made without consultation, management of payroll concerns, and the presence of racist and homophobic material in the workplace. These are serious issues and the Appellant had every right to raise them with the Respondent. However, it is not the case that any disciplinary process regarding the Appellant's conduct can be determined to be reprisal in the absence of further evidence. The Respondent noted the Appellant's assertions that the process constituted a breach of s 41 of the Public Interest Disclosure Act 2010 (Qld) and sought an independent assessment by Ms Wendy Currey, Manager Workplace Ethics. Ms Currey considered the allegations raised and determined that the allegations do not meet the threshold for suspected corrupt conduct pursuant to the Crime and Corruption Act 2001 (Qld) or a public interest disclosure pursuant to s 12 or 13 of the Public Interest Disclosure Act 2010 (Qld).
- [56]I note the Appellant's submission regarding procedural fairness and consider that the Respondent's explanation of the process including the appointment of the relevant delegate was fair and reasonable.
Appeal against decision on disciplinary action
- [57]The decision outlined the disciplinary action as follows:
I have carefully considered all evidence available to me, including the submissions you make with respect to the proposed disciplinary action.
In reaching my decision on disciplinary action to be taken, I have had regard to the following:
- You have not provided any rationale or justification for why the aforementioned proposed penalties are not reasonable or appropriate, nor have you recommended any alternative actions that I should consider, disciplinary or otherwise.
- The temporary transfer at level was proposed to provide you with a period of time to undertake the training I have lawfully directed you to complete, reflect on your previous behaviours and conduct and make reasonable adjustments before returning to the Gold Coast University Hospital. This penalty was further proposed to assist you in ensuring your conduct aligns with the expectations of the Gold Coast Hospital and Health Service, including the Code and the Health Service values.
- Based on the information currently available to me, I maintain the proposed penalties are reasonable and appropriate given the substantiated and partially substantiated allegations against you.
Accordingly, I have determined to impose the following disciplinary action under section 188(1) of the Act:
- A temporary transfer at level to the position of Assistant in Nursing, Central Sterilising Department at Robina Hospital with consequential change to your terms and conditions of employment (continuous shift work to shift work) for a period of six (6) months; and
- A reprimand.
- [58]The decision maker outlined the following consideration of the Appellant's human rights:
I acknowledge that my decision to take disciplinary action against you, namely a temporary transfer at level and a reprimand may impact and potentially limit your human rights including the right to privacy and reputation, which extends to protecting professional relationships and reputation and the right to participate in public life (through employment in the public service).
I also acknowledge that the disciplinary action taken may limit your rights to privacy and reputation as it will form part of your formal disciplinary history and will need to be disclosed in certain circumstances. This may for instance have a negative impact on your prospects of obtaining employment elsewhere in the public service.
However, I consider any limitation is demonstrably justified. This is because it is in the public interest in ensuring that public servants and employees of Gold Coast Hospital and Health Service conduct themselves appropriately, and in a manner consistent with the Code of Conduct. I consider that this outweighs the limited potential impact on your human rights at this time.
- [59]The Appellant submits that the proposed disciplinary action is disproportionate to the conduct alleged, contending that management action would be more appropriate in the form of training and other positive performance management strategies.
- [60]As outlined above, the failure of the Appellant to treat his colleagues in a respectful manner made disciplinary action more appropriate than management action in the circumstances.
- [61]The Respondent submits that the temporary transfer at level to the Robina Hospital for a period of six months will allow the Appellant to participate in the Performance and Development Plan and complete training on Emotional Intelligence, Communications Basics and Building Better Workplaces: Civility Training. I am satisfied that a temporary transfer to facilitate further training on the subject behaviours and a reprimand is proportionate in the circumstances. Accordingly, the disciplinary action is fair and reasonable.
- [62]Finally, I note the submission that the central incident in this matter arose out of the Appellant's passion for industrial rights. It is important that employees are aware of their industrial rights in the workplace and feel comfortable asserting these rights. This however must always be done in a matter that is respectful, noting that employees of all levels also have legislative rights to protect their safety at work.
- [63]The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[8]
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.[9]
- [64]Applying the principles outlined above, I do not consider that the decision lacks justification in the circumstances.
- [65]Based on the information before me, I am satisfied that the decision is fair and reasonable in the circumstances.
Order
- [66]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] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').
[2] Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245, 261.
[3] 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 PS Act.
[4] IR Act s 562B(3).
[5] Briginshaw v Briginshaw (1938) 60 CLR 336.
[6] Jelacic v State of Queensland (Queensland Fire and Emergency Services) [2021] QIRC 384; Newman v State of Queensland (Queensland Police Service) [2021] QIRC 159; AW v State of Queensland (Department of Environment and Science) [2021] QIRC 036; Nash v State of Queensland (Queensland Corrective Services) [2021] QIRC 345; Magor v State of Queensland (Queensland Corrective Services) [2022] QIRC 035.
[7] [2021] QIRC 330.
[8] [2019] QSC 170.
[9] Ibid [207]-[209].