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  4. Gill v State of Queensland (Queensland Health) - [2023] QIRC 290

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Gill v State of Queensland (Queensland Health)[2023] QIRC 290

Gill v State of Queensland (Queensland Health)[2023] QIRC 290

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gill v State of Queensland (Queensland Health) [2023] QIRC 290

PARTIES:

Gill, Diane

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2022/1030

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

6 October 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 – where respondent alleges that appellant did not comply with direction to attend an independent medical examination – where allegation substantiated – where disciplinary action taken of a reprimand and monetary penalty – consideration of penalty – where appellant appeals decision to take disciplinary action

LEGISLATION:

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

Public Sector Act 2022 (Qld), ss 92, 130, and 289,

Public Service Act 2008 (Qld), ss 174, 187 and 194

CASES:

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Reasons for Decision

Introduction

  1. [1]
    Ms Diane Gill ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Administration Officer, Emergency Department at Logan Hospital.
  1. [2]
    On 24 November 2022, Mr Kieran Kinsella, A/Executive, Logan and Beaudesert Health Service, requested the Appellant show cause as to why disciplinary action should not be imposed for failing to attend an Independent Medical Examination (IME).
  1. [3]
    By appeal notice filed on 23 December 2023, the Appellant appealed against the disciplinary penalty decision, pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld)[1].
  1. [4]
    The Public Sector Act 2022 (Qld) ('PS Act') commenced operation on 1 March 2023 and pursuant to s 289 of the PS Act, the appeal must be heard and decided under chapter 3, part 10 of the PS Act.

Background

  1. [5]
    The Appellant is employed on a permanent full-time basis working 76 hours per fortnight and her employment is governed by the Hospital and Health Services General Employees (Queensland Health) Award State 2015 and the Queensland Public Health Sector Certified Agreement (No. 10) 2019.
  1. [6]
    On 24 June 2022, the Appellant was issued a show cause notice by Mr Kieran Kinsella, outlining the following allegation:
  1. On 9 June 2022 at approximately 10:15am you failed to attend the independent medical examination (IME) that you were directed to attend in accordance with section 175 of the PS Act.
  1. [7]
    The show cause notice provided the evidence being relied upon, including copies as attachments. It also stated that having regard to the allegation, Mr Kinsella considered that in failing to attend the scheduled IME, the Appellant may be liable to discipline in accordance with section 187(1)(d) and/or section 187 (l)(f)(ii) of the Public Service Act 2008 (Qld).
  1. [8]
    On 1 September 2022, NPAQ responded to the show cause notice on behalf of the Appellant.
  1. [9]
    On 17 October 2022, Mr Kinsella wrote to the Appellant substantiating the allegation and proposing the disciplinary action of a reprimand and a monetary penalty of $1,177.00, representing the cost of the specialist appointment.
  1. [10]
    On 26 October 2022, NPAQ responded to the proposed disciplinary action on behalf of the Appellant, confirming non-attendance and repeating their view that the IME Direction was unreasonable. NPAQ also submitted that imposing a monetary penalty was unreasonable, as the Appellant had not been provided a quote prior to the appointment and advice provided within the IME Direction stated that the Respondent will cover all reasonable costs associated with attending the appointment. 
  1. [11]
    By letter on 2 December 2022, Mr Kinsella advised the Appellant that the disciplinary outcome of a reprimand and a monetary penalty of $1,177.00 would be imposed. 
  1. [12]
    The Appellant has not appealed the disciplinary finding and has admitted to not attending the IME as directed.

Appeal principles

  1. [13]
    The appeal must be decided by reviewing the decision appealed against.[2] Because 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. [14]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[5] Accordingly, the issue for determination is whether the decision to impose the disciplinary action of a reprimand and monetary penalty 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. [15]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. 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.

The appeal notice

  1. [16]
    In the appeal notice, the Appellant provides an extensive chronology of events following circumstances of the Appellant, that:
  1. On 27 August 2020 and 8 September 2021, I provided a medical certificate stating that I have "trouble wearing face mask for long periods" and that I find it "suffocating and claustrophobic wearing it [a mask] for longer period beyond 15 minutes at a time."
  1. On 23 September 2021, I provided a medical certificate which states that I have "a medical condition which prevents her [Diane] from wearing a mask for long periods of time" and that this medical condition "does not impact on her [Diane'[s] ability to do any other duties". It was advised in this medical certificate that "the specific nature of her [Diane's] medical condition is a private and confidential matter".
  1. On 30 December 2021, Mr Ravi Peter-Andrew, Director Corporate Services, LH, MSH raised concerns with me regarding reports that I was not wearing the appropriate personal protective equipment (PPE) and that I had stated that she had medical exemption from wearing an N95 mask.
  1. On 31 December 2021, I responded to Mr Peter-Andrew and advised that wearing a mask causes me to feel claustrophobic, increasing my anxiety and a feeling of being unable to breathe. I also advised that she had requested for reasonable adjustments but that this was not offered. Subsequently, Mr Peter Andrew advised that if I were unable to wear the appropriate PPE that I would be unable to attend the workplace due to workplace heath and safety requirements.
  1. On 28 April 2022 I was directed by Noel Cridland who at that time was Executive Director, to attend an IME on June 9 2022.
  1. On 25 March 2022, I was requested to provide additional medical information regarding my medical condition which affects my ability to wear the appropriate PPE.
  1. On 31 March 2022, Dr Steven Ting, Loganlea Medical Centre, provided a response which confirmed that I have anxiety, depression and claustrophobia and that my medical condition which impacts my ability to wear a mask (both surgical and N95). Dr Ting advised that I have "trouble wearing her [Diane's] mask for longer periods of time" and that a reasonable adjustment would be "altered duties to remove amount of time she [Diane] requires to wear mask [sic]". Additionally, Dr Ting advised that my prospect for recovery is guarded and that she would benefit from "access to a psychologist/psychiatrist".
  1. On 4 May 2022, Ms Noelle Cridland, Executive Director, LBHS issued me with a direction to submit to an IME with Psychologist, Dr Nicholas Jetnikoff at the office of RedHealth on the 9 June 2022 at 10:15 am. This correspondence included information regarding my appeal rights associated with Ms Cridland's direction.
  1. On 19 May 2022, I emailed Mr Peter-Andrew enquiring about whether I would be paid for her attendance at the IME and reimbursement of travel and parking expenses to attend the appointment, I further enquired about blue surgical masks being worn in the Emergency Department rather than the N95 masks.

…

  1. On 2 June 2022, Mr Peter-Andrew responded to my email confirming that I would be paid for her attendance at the IME appointment and reiterated his previous advice on the PPE requirements in the Emergency Department. Mr Peter-Andrew also confirmed that as I work an 8 hour shift, she is [sic] required to wear a mask for long periods of time and if my medical condition no longer impacted her ability to wear a mask for the entirety of her shift, medical clearance would be required.
  1. On 6 June 2022 I was contacted by RedHealth to whom I advised I would not be attending the IME on 9 June 2022.
  1. On 6 June 2022, confirming this, Ms Katrina Webb, Consultant, HR, Logan and Beaudesert Health Service (LBHS), MSH, contacted me after I advised RedHealth that I would not be attending the IME. In this email, Ms Webb confirmed that I had been directed to attend, which includes actively participating, the IME and detailed that failure to comply with this direction may result in disciplinary action.
  1. On 7 June 2022, a letter was issued to HR, LBHS by the Nurses Professional Association of Queensland (NPAQ) on my behalf confirming my refusal to attend the IME and disputing the direction from the delegate. This letter indicates that I received the letter issued to me on 4 May 2022 and was aware of the requirement to attend and actively participate in the IME on 9 June 2022.
  1. On 9 June 2022, HR, LBHS received confirmation that I failed to submit to the IME with Psychologist, Dr Jetnikoff at the office of RedHealth at 10:15am.

…

Appellant's submissions

  1. [17]
    The Appellant relies on the submissions made in the appeal notice, submitting that the decision is unfair in the circumstances. The Appellant submits, in summary, that:
  1. Since 27 August 2020, the Appellant had been transparent, providing medical information, with respect to the medical condition in question;
  1. The Appellant has made multiple requests, per the Reasonable Adjustment policy (G3 QH-POL-210). To date, the Appellant has received no correspondence with respect to formalising these adjustments per the aforementioned policy. In the absence of a follow-up, it is arguably reasonable that there was no issue with the adjustments already from 27 August 2020 to 30 December 2021;
  1. Although directed to attend an IME, the Appellant was allowed to perform her substantive duties on strength of medical certificates since 27 August 2020. With that information, management acted by all appearances to be satisfied as to the mental condition the appellant suffered from;
  1. This suggests the medical information provided was reasonable; which is to say, that if the information was not reasonable, the obligation rests on the respondent to not make or allow the adjustments that occurred;
  1. Section 174 of the Public Service Act 2008 (Qld) is referred to by Mr Kinsella as to the basis for the Show Cause notice. This clause depends upon the respondent having a reasonable suspicion;
  1. That adjustments were accepted contradicts the reasonable of Mr Kinsella's suspicion, per s 174. He cannot reasonably suspect if the medical information has been manifestly integrated into the concrete demands on the business;
  1. Section 174(b) of the Public Service Act 2008 (Qld) is not applicable, because by all indications management held no suspicion with respect to the appellant's mental disability due to the medical certification provided on and ongoing from the 27 August 2020;
  1. Having provided medical certification, Mr Kinsella's suspicion may well exist but it ought not to be considered reasonable in the circumstance;
  1. Further, having worked for a period of almost 827 days before Mr Kinsella alleged to hold a reasonable suspicion; given that the appellant met the concrete operational demands as set by Christine Hattersley, this further lends to the argument that Mr Kinsella's suspicion was unreasonable;
  1. A reprimand is harsh/disproportionate in the circumstance because, having subsequently attended an IME on 12 October 2022, no serious detriment has been arguably suffered by the business so as to warrant the appellant suffering a serious disciplinary outcome;
  1. The Appellant however would accept a less serious disciplinary outcome as she acknowledges that she did not appeal the reasonableness per se of being directed to attend the first IME on 9 June 2022 in correspondence from Ms Noelle Cridland dated 24 April 2022; and
  1. While it is acquiesced that the direction, per Ms Cridland, to attend the IME was reasonable (i.e., no appeal pursued), because the Respondent has acknowledged and acted upon the medical information outside of an IME, the non-attendance of the IME has not been to the serious detriment to the Respondent or the Appellant's duties.
  1. [18]
    If there is a cost between RedHealth and their client, this is not the concern of the Appellant in the circumstance, because:
  1. a.
    Due notice for cancellation was confirmed by RedHealth and their client;
  2. b.
    and the penalty is for the stated cost of that appointment.
  1. [19]
    Arguably, the onus of any outstanding cost exists solely between Red Health and the client. If this cost is disputed between both, the Appellant should not be involved or held liable, nor should she be part of any costs arguably owed by the Respondent.
  1. [20]
    In an event that there was some sort of cost, because the Appellant provided due cancellation notice acknowledged by the client, the Respondent, the representation to the Appellant, that a cost exists for the "specialist appointment", is arguably misleading.
  1. [21]
    There is only a cost incurred by the Respondent, as client, potentially failing to follow the Terms and Conditions of RedHealth despite the due notice provided.
  1. [22]
    Although the cost of the medical appointment has allegedly arisen within the context of the Appellant's employment, the cost is arguably unclearly related to the contract of employment the Appellant has with the Respondent. The Appellant has never been provided a copy of her employment contract.

Respondent's submissions

  1. [23]
    The Respondent submits that the decision to impose the disciplinary action was fair and reasonable. The Respondent submits, in summary, that:
  1. The IME Direction clearly stated that in the event that the Appellant could not attend the appointment to contact Ms Webb as soon as possible. It was also clearly stated that if the Appellant did not attend the appointment and did not have a reasonable excuse, she may be liable for disciplinary action and provided examples including a reprimand and monetary penalty;
  1. By her own admission, the Appellant has stated that she advised RedHealth on 6 June 2022 that she was not going to attend on the recommendation of the NPAQ;
  1. As stated within the Appellant's submissions, RedHealth was engaged by the Respondent. The Appellant ought to have provided advice of her non-attendance to the Respondent, consistent with the instructions given in the IME Direction;
  1. Despite notification to RedHealth, it cannot be said that the Appellant was unaware that she was still required to attend the IME, by virtue of email correspondence from Ms Webb dated 6 June 2022;
  1. It was not for the Appellant to simply decide not to follow the direction to submit to the IME without reasonable excuse, and any advice to the contrary was misguided;
  1. The Respondent submits that, in addition to being inconsistent with the instructions given, the Appellant's reason of "on recommendation of her union" (the NPAQ) is not sufficient to explain the reasons for non-attendance and therefore cannot be considered a reasonable excuse;
  1. It is reasonable for MSHHS to expect employees to comply with lawful and reasonable directions and consider non-compliance, without a reasonable excuse,

a serious issue, especially when those directions relate to the health and safety of employees;

  1. The Appellant was advised by Mr Peter-Andrews on 2 June 2022 that the IME was to obtain information to consider reasonable adjustment and the continuation of her employment safely while navigating the health pandemic;
  1. Accordingly, the information available, including the Appellant's admission of nonattendance, supported the substantiation of the allegation;
  1. The reprimand imposed in this instance was appropriate to convey the seriousness of the situation while ultimately aligning with the primary purpose of supporting the Appellant's ongoing employment;
  1. In respect to the monetary penalty imposed, section 92 of the PS Act examples of disciplinary action open to decision makers to take;
  1. The conditions established by section 92(1), (2) and (3) of the PS Act provide the disciplinary action must be reasonable in the circumstances and specifically relating to monetary penalties, it cannot be more than two of the employee's periodic remuneration payments;
  1. Practically applied, the decision maker in this instance could have imposed any reasonable amount within the mentioned limits;
  1. The monetary penalty imposed in this instance was not imposed for the purposes of transferring liability of this cost of the RedHealth appointment to the Appellant;
  1. The Respondent considered the cost incurred as a result of the Appellant's failure to attend the IME to establish a foundation for the penalty in this instance;
  1. The Respondent submits that it is entirely reasonable for the penalty imposed to have a connection with the consequence of the Appellant's own actions; and
  1. Having regard to the above, the Respondent submits that the disciplinary action taken in this instance was reasonable having regard to the substantiated allegation.

Appellant's submissions in reply

  1. [24]
    In reply, the Appellant submits the following:
  1. First that basis upon which the appellant respectfully writes to the QIRC is strictly with respect to the Respondent's proposed disciplinary action attached to the Public Service Appeal ("PSA") application;
  1. Second, that those decisions were:
  1. i.
    "A reprimand; and
  2. ii.
    Imposition of a monetary appeal of $1177.00, the cost of the specialist appointment. To be deducted from the fortnightly remuneration payments [emphasis added]."
  1. Third, the Appellant does not believe it is material to their submissions to dispute anything extrinsic to the appealable proposed action, such as, for instance, the prima facie legitimacy to impose a monetary penalty (as this is uncontroversial). …
  1. Last, to be clear, the Appellant's approach has been strictly with respect to what the Respondent proposes as it is, which is to say, specifically, with respect to "the cost of the specialist appointment"
  1. [25]
    The proposed disciplinary action is with respect to "the cost". The Appellant refers to her submission as to how there can reasonably be no cost.
  1. [26]
    The Appellant refers to the Respondent's statement that their "action aligns with the amount charged to MSH for [the Appellant's] non-attendance." Thus, the Respondent has defined for themselves in the decision what is meant by "cost", which is "the amount charged".
  1. [27]
    The Appellant submits that despite this, the Respondent has submitted that "the Respondent considered the cost incurred as a result of the Appellant's failure to attend the IME."
  1. [28]
    The Appellant refers to the Respondent's submission in which they acknowledge that due notice was provided to RedHealth by the Appellant.
  1. [29]
    The Appellant fails to understand, therefore, whether the basis for the penalty is "the cost", "the amount charged" - or however a reasonable person would take such terms to mean - or whether it is now due to something else the Respondent has proposed.
  1. [30]
    If in the latter case, the Appellant submits that the appeal is sought due to a misrepresentation by the Respondent, for which the Appellant should not be prejudiced.
  1. [31]
    The Appellant submits that it does not follow that the "cost , charge" or debit, allegedly to have been incurred, is coterminous to a cost "as a result of the Appellant's failure to attend the IME", contending that these are substantively different costs.
  1. [32]
    The Appellant submits that it is unreasonable in the circumstance for "the cost" or "the amount charged" to mean otherwise, as the Respondent has pressed.

Consideration

  1. [33]
    Consideration of the disciplinary action decision requires a review of the decision to determine if it was fair and reasonable in the circumstances. The Appellant submits that it is only the decision to impose the disciplinary penalty that is the subject of her appeal.
  1. [34]
    On 4 May 2022, the decision maker directed the Appellant to attend an Independent Medical Examination (IME) with RedHealth scheduled for 9 June 2022. The correspondence included the following:

Direction to attend independent medical assessment

I am requiring you to submit to an independent medical examination (IME). The purpose of the IME is to obtain medical advice to help me to assess how to best support you in the workplace. It may also assist me in determining if you can perform your substantive position (including with any reasonable adjustments), and, if not, what other positions you may be able to perform.

…

If it is not possible for you to attend your appointment, please notify Ms Katrina Webb, A/Consultant, Human Resources by telephone … as soon as possible so alternate arrangements can be made. Please note, if you do not attend the appointment and do not have a reasonable excuse, you may be liable for disciplinary action. You may also be unable to access sick leave until you submit to the independent medical examination. [emphasis added]

  1. [35]
    The Appellant did not attend the IME appointment as directed and subsequently received correspondence from the Respondent on 24 June 2022 requesting that the Appellant respond to the following allegation:

On 9 June 2022 at approximately 10:15am you failed to attend the independent medical examination (IME) that you were directed to attend in accordance with section 175 of the PS Act.

  1. [36]
    The Respondent considered the Appellant's response and advised on 17 October 2022 that the allegation had been substantiated and a disciplinary finding had been made. The disciplinary finding was that the Appellant had contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person, specifically cl 4.1 of the Code of Conduct. The Respondent requested that the Appellant show cause as to why the following disciplinary action should not be imposed:
  • A reprimand; and
  • Imposition of a monetary penalty of $1,177.00, the cost of the specialist appointment. To be deducted incrementally from your fortnightly remuneration payments.
  1. [37]
    The Respondent considered the Appellant's response and decided to impose the proposed disciplinary action. The Appellant appeals this decision.
  1. [38]
    The essence of the Appellant's submissions is that she contacted RedHealth to advise that she did not intend to attend the appointment and hence should not be liable for the cancellation cost of the appointment. The Appellant phoned RedHealth on 6 June 2022, which was 3 days prior to the appointment. The Appellant refers to the policy of RedHealth that fees may be incurred if appointments are cancelled within 48 hours. On the basis that the Appellant contacted the specialist more than 48 hours before the appointment, the Appellant submits that no charge should have been incurred by the Respondent nor should the cost be passed on to the Appellant.
  1. [39]
    The Respondent refers to the letter in which the Appellant was directed to attend the specialist appointment. The letter provides clear direction as to the actions required if the Appellant was unable to attend the appointment, specifically to notify Ms Webb 'as soon as possible so alternate arrangements can be made'. This direction did not instruct the Appellant to contact the specialist directly in circumstances that she was not going to attend the appointment. In doing so, the Appellant acted contrary to the direction.
  1. [40]
    Although the Appellant may have been of the erroneous view that her phone call to the specialist 'cancelled' the appointment, this was not the case. As it was the Respondent that had engaged the specialist, RedHealth contacted the Respondent after receiving advice from the Appellant that she was not going to attend the appointment. The Respondent then contacted the Appellant referring her to the lawful direction as outlined in the correspondence. In these circumstances, the appointment was never cancelled. The Appellant's actions in advising RedHealth that she was not going to attend did not follow the process and consequently the appointment remained scheduled to allow the Appellant to follow the direction. As the appointment was never cancelled, a fee was charged to the Respondent for the Appellant's failure to attend at the scheduled time and date.
  1. [41]
    The Appellant submits that she did not attend the appointment based on the advice provided by NPAQ. Whilst it was unfortunate if such advice was given, there can have been no ambiguity that the Respondent had provided the Appellant with a direction to attend the appointment. The Respondent again confirmed this direction after the Appellant had advised that she was not going to attend the appointment after contacting RedHealth. I also note the submission from NPAQ that the Respondent has previously agreed to cover the costs associated with the Appellant attending an IME. It is clear that such an arrangement relates only to circumstances in which the Appellant did in fact attend the IME. No such agreement existed to cover the costs thrown away because of a failure to follow the direction to attend the scheduled appointment without reasonable excuse.
  1. [42]
    The Respondent outlined clearly that the Appellant may be the subject of disciplinary action if she did not follow the lawful direction to attend the specialist appointment. The correspondence outlined that if the Appellant did not attend the appointment and did not have a reasonable excuse that she ''may be liable for disciplinary action''.
  1. [43]
    I accept the Respondent's submission that it is reasonable to expect employees to comply with lawful and reasonable directions and to consider non-compliance, without a reasonable excuse, a serious issue especially when those direction relate to the health and safety of employees. In these circumstances it was fair and reasonable to impose a reprimand to convey the seriousness of the Appellant's conduct. I note that a reprimand is at the lower end of the scale of available disciplinary actions under s 92 of the PS Act.
  1. [44]
    The decision to impose disciplinary action in the form of a monetary penalty was made pursuant to s 92(1)(f) of the PS Act. Although it was open to the decision maker to impose any amount deemed reasonable, the amount of the monetary penalty was the cost incurred by the Respondent following the Appellant's failure to attend the specialist appointment. It is not relevant whether the penalty is the exact same as the 'cost' or 'amount charged' by RedHealth given that it was open to the Respondent to impose a higher or lower monetary penalty. It was in my view appropriate to set the monetary penalty at the same rate as the cost paid as a consequence of the Appellant's actions. In circumstances where public money has been lost because of the Appellant's failure to follow a lawful and reasonable direction, it was open to the decision maker to impose a monetary penalty of the equivalent amount. I note the Respondent's confirmation that the amount imposed of $1,177.00 was not in excess of the total of two of the Appellant's periodic remuneration payments in accordance with s 92(2) of the PS Act.
  1. [45]
    In circumstances where the Respondent had directed the Appellant to attend an IME to obtain information to consider reasonable adjustments and the safe continuation of her employment, it was incumbent upon the Appellant to comply with the direction. The failure to follow the direction gave rise to a disciplinary finding that the Appellant had contravened the Code of Conduct. In these circumstances it was open to the decision maker to impose a disciplinary penalty of a reprimand and monetary penalty of $1,177.00.
  1. [46]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[6] 

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.[7]

  1. [47]
    Applying the principles outlined above, I do not consider that the decision to impose a reprimand and monetary penalty lacks justification in the circumstances. An employee's willingness to comply with a lawful and reasonable direction is a key component of the employment relationship. The disciplinary action is, in my view, proportionate to the substantiated conduct.
  1. [48]
    Based on the information before me, I am satisfied that the decision to impose a disciplinary action of a reprimand is fair and reasonable in the circumstances.

Order

  1. [49]
    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]Public Sector Act 2022 (Qld), s 130(b) (repealed Act).

[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 PS Act.

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

[6][2019] QSC 170.

[7]Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Gill v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Gill v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 290

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    06 Oct 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
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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