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  4. Nield v State of Queensland (Queensland Health) - [2023] QIRC 294

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Nield v State of Queensland (Queensland Health)[2023] QIRC 294

Nield v State of Queensland (Queensland Health)[2023] QIRC 294

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Nield v State of Queensland (Queensland Health) [2023] QIRC 294

PARTIES:

Nield, Shirley

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/29

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

12 October 2023

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

  1. The decision maker's determination to substantiate Allegations 2 – 11 was fair and reasonable.
  1. Ms Nield's actions do not amount to 'misconduct'.
  1. The disciplinary finding was not fair and reasonable.
  1. 'Management action' is the appropriate course to address GCHHS's concerns about Ms Nield's use of her personal email.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding – allegations of misconduct against the appellant – whether disciplinary findings were fair and reasonable –  whether the appellant engaged in the conduct subject of the ten allegations – whether the alleged  conduct constitutes misconduct – where the allegations can be substantiated – where the conduct does not constitute misconduct – where the disciplinary findings of misconduct were not fair and reasonable

LEGISLATION & OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564

Public Sector Act 2022 (Qld) s 3, s 4, s 40, s 85,

s 86, s 90, s 91, s 132, s 133, s 324

Public Service Act 2008 (Qld) s 187, s 194, s 201

Directive 05/23: Discipline cl 4, cl 7, cl 9

Directive 14/20: Discipline

Directive 15/20: Positive Performance Management cl 4, cl 5, cl 6, cl 7, cl 9

CASES:

Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116

Barker v Queensland Fire and Rescue Authority (2000) QSC 395

Briginshaw v Briginshaw (1938) 60 CLR 336

Chamberlain v The Queen (No 2) (1984) 153 CLR 521

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

Gilmour v Waddell & Ors [2019] QSC 170

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

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170

The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 067

Reasons for Decision

  1. [1]
    Ms Shirley Nield is employed as a Clinical Nurse (CN) with the Gold Coast Hospital and Health Service (GCHHS; the Service).  She works in the Neuroscience Rehabilitation Unit, at the Gold Coast University Hospital. 
  1. [2]
    Ms Nield has worked for the Service for 13 years, as "a loyal long-term employee."[1] 
  1. [3]
    It was submitted that "A review of her employment history reveals that between 2009 and 2020, Ms Nield performed her roles and duties to a high standard without any concerns being raised to her;"[2] and further emphasised that "Prior to a change to her line manager in 2017 (Ms Nield) had an unblemished employment record".[3] 
  1. [4]
    Eleven allegations regarding Ms Nield's workplace conduct were put to her in correspondence from Mr Grant Brown, Executive Director, People and Operations, GCHHS dated 24 October 2022 (the Allegations Letter). That correspondence was provided to Ms Nield on 8 November 2022.
  1. [5]
    A show cause process ensued. Ms Nield was invited to provide written submissions in response to the eleven allegations, including "any explanation of the matters above that you may consider relevant and any supporting documentation".[4]
  1. [6]
    Ms Nield provided her response to the allegations in correspondence dated 5 December 2022 (the Response Letter).[5]
  1. [7]
    The decision was conveyed to Ms Nield on 6 February 2023,[6] in correspondence from Mr Nigel Hoy, Acting Executive Director, People and Operations, GCHHS (the decision-maker) dated 30 December 2022 (the Decision Letter).[7]  Mr Hoy wrote "I have considered your response to allegation one and I accept your response.  On that basis I find allegation one not substantiated."[8] Mr Hoy found the remaining ten allegations were substantiated on the balance of probabilities.
  1. [8]
    On the basis of his findings in relation to allegations 2 - 11, Mr Hoy's disciplinary finding was that (emphasis added):

inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.[9]… pursuant to section 187(1)(b) of the Act, you may be guilty of misconduct, that is

  1. [9]
    Section 90 of the Public Sector Act 2022 (Qld) (PS Act) defines a 'disciplinary finding' to be "a finding that a disciplinary ground exists".  'Grounds for discipline' are set out at s 91(1) of the PS Act, with s 91(1)(b) stating "been guilty of misconduct".
  1. [10]
    Mr Hoy so concluded that (emphasis added):

On the basis of my findings in relation to allegations two to eleven against you and my determination that the above discipline grounds exist, I am now considering whether disciplinary action should be taken against you.[10]

  1. [11]
    The Decision Letter also proposed a disciplinary penalty in the following terms:

  Proposed disciplinary action

Given the serious nature of the substantiated allegations, I am giving serious consideration to the disciplinary action of

  • a reprimand; and
  • a reduction of classification level from Clinical Nurse Level 6, pay point 4 (NRG6.04) to Registered Nurse Level 5, pay point 7 (NRG5.07)

in accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had the opportunity to respond.[11]

  1. [12]
    On 27 February 2023, Ms Nield filed an Appeal Notice against the decision.  She appointed her union - the Queensland Nurses' and Midwives' Union of Employees (the QNMU) - as her representative.
  1. [13]
    The following day, I issued a Directions Order to hear the parties and to stay the disciplinary finding decision until the determination of the Appeal or further order of the Commission.[12]

Appeal Grounds

  1. [14]
    Ms Nield's appeal is brought on the following grounds:[13]
  • Ten disciplinary findings have been made without full consideration of all the relevant information within the knowledge of the Respondent.
  • Four of the allegations pertain to the same 'event'.  That is, "the submission of a workplace concern to (Ms Nield’s) upline manager, Ms Sue Samuels (Assistant Director of Nursing) … on 13 October 2021."
  • The allegations all arise from Ms Nield’s industrial activity, "specifically seeking assistance from her union in the preparation of a grievance."  It was submitted that the "matters of grievance are interwoven with the disciplinary proceeding …"
  • The Respondent has "failed to arrive at an affirmative finding of misconduct".
  • The appropriate approach was for the Respondent to apply Directive 15/20: Positive Performance Management (PPM Directive) in relation to Ms Nield’s use of her personal email, rather than in Directive 14/20: Discipline in the circumstances.
  1. [15]
    My consideration of whether the disciplinary findings made against Ms Nield are fair and reasonable are informed by matters including:
  • whether Ms Nield engaged in the conduct, subject of the ten allegations;
  • whether the chief executive is reasonably satisfied that a discipline ground has been established, as the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made;
  • whether the alleged conduct constitutes 'misconduct' within the meaning of s 91(5) of the Public Sector Act 2022 (Qld) (PS Act);
  • whether the conduct gave rise to a disciplinary finding that was fair and reasonable.
  1. [16]
    My determinations may be summarised as follows:
  • The decision maker's determination to substantiate allegations two to eleven was fair and reasonable because the conduct alleged did occur.
  • It was not fair and reasonable for the decision maker to conclude that Ms Nield "may be guilty of misconduct."
  • For that reason, the chief executive cannot be reasonably satisfied that the disciplinary ground of 'misconduct' exists.  The disciplinary finding then was not fair and reasonable.
  • Legislative provisions protect:
  1. a)
    Ms Nield's entitlement to make a complaint or inquiry in relation to her employment.
  2. b)
    Ms Nield's right to engage in industrial activity.
  3. c)
    Ms Nield's ability to access officers of her union to provide assistance in the preparation of a workplace grievance.
  4. d)
    Ms Nield's rights as a union delegate.
  5. e)
    Confidential patient information.
  • The appropriate remedy is for the Respondent to apply 'management action' in relation to Ms Nield's use of her personal email. In my view, that ought to have occurred before GCHHS determined to embark on a disciplinary process to address numerous allegations, all essentially about the same issue.

Jurisdiction

  1. [17]
    At the time the Appeal was filed on 27 February 2023, the relevant legislation was the Public Service Act 2008 (Qld) (PS Act 2008).
  1. [18]
    Section 194 of the PS Act 2008 identifies the categories of decisions against which an appeal may be made.  This Appeal was filed under s 194(1)(eb), "a decision a public service employee believes is unfair and unreasonable (a fair treatment decision)."
  1. [19]
    The PS Act 2008 was replaced with the PS Act on 1 March 2023.
  1. [20]
    The PS Act contained a transitional provision about how existing appeals were to be decided:

324 Existing appeal

(1) This section applies if –

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

(b) immediately before the commencement, the appeal had not been decided.

(2) From the commencement, the appeal must be heard and decided under chapter 3, part 10.

  1. [21]
    This appeal meets the above criteria and so must be decided under the new PS Act.
  1. [22]
    Section 132(4)(b) of the PS Act provides that a person can appeal against a finding that a disciplinary ground exists for the person under s 91.
  1. [23]
    Section 133 of the PS Act outlines who may appeal a fair treatment decision - a public sector employee aggrieved by the decision.  As an employee of the Respondent, Ms Nield is eligible to appeal.
  1. [24]
    I am satisfied that the decision made by GCHHS pertaining to Ms Nield, contained in the Decision Letter dated 30 December 2022, can be appealed.
  1. [25]
    I accept GCHHS' submission that "… the disciplinary action proposed (a reprimand and a reduction in classification level) is not a 'decision' and the show cause process is yet to run its course to a final determination regarding any disciplinary action to be imposed.  The Respondent submits no decision has been made in relation to a disciplinary action and therefore the disciplinary action proposed is not a decision that can be appealed under s 194(1)(eb) of the PS Act …"[14]
  1. [26]
    I have included the relevant extracts of the PS Act below.

Timeframe to Appeal

  1. [27]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [28]
    The decision was given to Ms Nield on 6 February 2023.
  1. [29]
    The Appeal Notice was filed with the Industrial Registry on 27 February 2023.
  1. [30]
    I am satisfied that the Appeal was filed by Ms Nield within the required timeframe.

Appeal principles

  1. [31]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[15] This is the key issue for my determination.
  1. [32]
    A public service appeal under the IR Act is not by way of rehearing,[16] but involves a review of the decision arrived at and the decision-making process associated therewith.
  1. [33]
    Findings made by GCHHS, which are reasonably open to it, should not be disturbed on appeal.
  1. [34]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [35]
    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 matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Decision Letter[17]

  1. [36]
    The decision maker determined that Allegations Two to Eleven were substantiated, on the balance of probabilities.
  1. [37]
    On that basis, the decision maker determined a disciplinary finding that (emphasis added):

… pursuant to section 187(1)(b) of the Act, you may be guilty of misconduct, that is in appropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.

Submissions

  1. [38]
    In accordance with the Directions Order issued on 28 February 2023, the parties filed written submissions.
  1. [39]
    The Respondent's Submissions were filed on 9 March 2023, along with several attachments:[18]

Attachment

Description

A

Notice of Show Cause 1 letter dated 24 October 2022

A.1

Email audit report

A.2

Gold Coast Hospital and Health Service Privacy Plan

A.3

Learning Online portfolio - Shirley Nield

A.4

Parts 6&7 of the explanatory notes, Health and Hospitals Network Bill 2011

A.5

Part 6 Division 2 of the Hospital and Health Boards Act 2011

A.6

Chapter 6 of the Public Service Act 2008

A.7

Schedule 4 of the Information Privacy Act 2009 (National Privacy Principles)

A.8

Code of Conduct for the Queensland Public Service

A.9

Public Service Commission Directive 14/20 - Discipline

A.10

Human Resources Policy E10 - Discipline

A.11

Section 41 of the Public Interest Disclosure Act 2010

A.12

Queensland Health Fact Sheet: How to email secure information

A.13

Public Service Commission Private Email Use Policy

B

Response to Show Cause 1 by Ms Shirley Nield dated 5 December 2022

C

Notice of Show Cause 2 letter dated 30 December 2022

  1. [40]
    The Applicant's Reply Submissions were filed on 14 March 2023. Attached to that submission were examples of the similar level of detail that GCHHS "transmits to third parties, including the QNMU, on a regular basis …"[19]
  1. [41]
    The Appeal Notice filed 27 February 2023 contained the following attachments:[20]

Attachment

Date

Description

1

24 October 2022

Show Cause Allegation

2

5 December 2022

Ms Shirley Nield Response to Show Cause Allegation

3

30 December 2022

Finding to Show Cause Allegation

4

2008

Public Service Bill 2008 Explanatory note

5

August 2021

Queensland Health Human Resources Policy F4 (QH-POL-248)

6

20 November 2020

21 October 2020

Ms Shirley Nield Peer Feedback Tool x 2

7

25 September 2020

Public Service Commission - Positive Performance Manager - Directive 15/20

8

2 November 2009 -

3 October 2022

Ms Shirley Nield Online Learning porfolio

  1. [42]
    I have carefully considered all submissions and materials. I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' positions in my consideration of each question to be decided.

Relevant provisions of the PS Act

  1. [43]
    The main purpose of the PS Act is:

… to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.[21]

  1. [44]
    How that is primarily achieved is set out at s 4, including (emphasis added):

4 How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by —

…

  1. creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by-

 (i) providing for the key rights, obligations and employment arrangements of public sector employees; and

…

 (v) ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

 (vi) setting a positive performance management framework for public sector employees; and

 (vii) fixing principles to guide public sector managers and the work performance and personal conduct of public sector employees; and

…

  1. establishing a high-performing, apolitical public sector by effective stewardship that-

…

  1. ensures public resources are managed efficiently and their use is accountable.
  1. [45]
    Section 40 of the PS Act relevantly provides as follows:
  1. In recognition that public sector employment involves a public trust, the work performance and personal conduct of each public sector employee should be guided by the following principles (the work performance and personal conduct principles)—
  1. achieving excellence in service delivery;
  1. ensuring the effective, efficient and appropriate use of public resources;
  1. giving effect to government policies and priorities;
  1. collaborating with other public sector entities with a focus on public sector-wide priorities in addition to priorities specific to particular public sector entities, if appropriate and while recognising the need for independence of particular public sector entities;
  1. providing sound and impartial advice to government;
  1. continuously improving work performance, including through training and development;
  1. carrying out duties impartially and with integrity;
  1. acting honestly, fairly and in the public interest;
  1. interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity;
  1. observing all laws relevant to the employment;
  1. ensuring the employee’s personal conduct does not reflect adversely on the reputation of the public sector entity in which the employee is employed;
  1. observing the ethics principles under the Public Sector Ethics Act 1994, section 4;
  1. complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18.
  1. A public sector manager must take all reasonable steps to ensure each public sector employee under the manager’s management is aware of the following matters—
  1. the work performance and personal conduct expected of the employee;
  1. the public sector principles;
  1. the values of the public sector entity in which the employee is employed;
  1. for a public service employee—the values of the public service;
  1. what constitutes corrupt conduct under the Crime and Corruption Act 2001.
  1. Also, a public sector manager must—
  1. provide working environments in which all public sector employees are—
  1. treated fairly and reasonably; and
  1. assigned work according to the employee’s responsibilities as reflected in remuneration rates; and
  1. consider and give effect to the following matters when undertaking management responsibilities—
  1. the public sector principles;
  1. the values of the public sector entity in which the employee is employed;
  1. if the manager is a public service employee—the values of the public service; and
  1. ensure fairness and integrity in performing managerial functions, including when making decisions; and
  1. undertake best practice human resource management, including the application of the positive performance management principles in the following ways—
  1. pro-actively managing the work performance and personal conduct of public sector employees;
  1. constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector;
  1. taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises; and
  1. take personal responsibility for development as a manager.
  1. A chief executive of a public sector entity has overall responsibility for—
  1. ensuring the entity performs its functions in a way consistent with—
  1. the main purpose of the Act; and
  1. the ways in which the main purpose of the Act is to be primarily achieved; and
  1. the public sector principles; and
  1. ensuring managers within the entity perform managerial functions in accordance with the positive performance management principles; and
  1. ensuring public sector employees have access to fair and independent reviews and appeals; and
  1. ensuring the entity has workforce and human resource planning and practices, including systems for the regular review of employment arrangements for public sector employees.

Note—

If the chief executive is an accountable officer under the Financial Accountability Act 2009, see also the responsibility of the chief executive to develop the strategic plan and operational plan under the Financial and Performance Management Standard 2019, section 8.

  1. [46]
    Sections 85 and 86 of the PS Act relevantly provides as follows:

85 Positive performance management principles

(1) For best practice human resource management and in recognition that public sector employees are selected based on recruitment and selection processes under chapter 3, part 3, the management of public sector employees must be directed towards the following principles (positive performance management principles)—

(a) pro-actively managing the professional and personal development of public sector employees with a view to continuously building expertise within the public sector;

(b) ensuring regular and constructive communication between public sector managers and employees about the work performance and personal conduct principles;

(c) recognising the strengths, requirements and circumstances of individual employees and valuing their contributions;

(d) recognising performance that meets or exceeds expectations;

(e) providing opportunities and support to employees for improving performance;

(f) continuously improving performance through the provision of training and development;

(g) identifying at the earliest possible stage performance that does not meet expectations;

(h) integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

(2) The commissioner must make a directive about how the positive performance management principles are to be applied.

86 Requirement to apply positive performance management principles before taking disciplinary action

A public sector employee’s chief executive must not take disciplinary action against the employee for a matter relating to the employee’s performance until the chief executive has complied with a directive made under section 85(2) about applying the positive performance management principles in relation to the matter.

  1. [47]
    Section 90 of the PS Act defines the following terms (emphasis added):

disciplinary finding means a finding that a disciplinary ground exists.

disciplinary ground means a ground for disciplining a public sector employee under section 91.

  1. [48]
    Section 91 of the PS Act relevantly provides as follows:
  1. A public sector employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

(b) been guilty of misconduct; or

…

(d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or

(g) contravened, without reasonable excuse, a provision of—

(i) this Act, other than section 39 or 40; or

(ii) another Act that applies to the employee in relation to the employee’s employment; or

…

  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.

…

  1. To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  1. In this section—

 misconduct means—

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee’s employment in the public sector

Relevant provisions of the Directives

  1. [49]
    Directive 05/23: Discipline (Discipline Directive) relevantly provides:

4.  Principles

…

4.2  Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.

4.3  Under the Human Rights Act 2019 decision makers have an obligation to:

a.  act and make decisions in a way that is compatible with human rights, and

b.  give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

…

4.7  A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:

a.  the end of unacceptable conduct

b.  early resolution

c.  preserving working relationships

d.  avoiding an unnecessary and disproportionately protracted dispute

4.8  Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

4.9  A chief executive must not take disciplinary action against an employee for a matter relating to the employee’s performance until they have complied with the positive performance management directive in relation to the matter.

4.10  Discipline under chapter 3 of the Act must:

a.  be conducted in in a timely way, to the extent that is within the control of the chief executive, and without any unreasonable unexplained delay, and

b. be fair, appropriate and proportionate to the seriousness of the work performance matter, and

c.  comply with the requirements of the Act, the provisions of this directive and the principles of procedural fairness

…

7.  Requirements to commence a discipline process

7.1  Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee’s work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

7.2  Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

  1. a.
    the seriousness of the employee’s personal conduct and/or work performance, and
  1. b.
    whether the matter should be resolved through management action instead, and
  1. c.
    whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
  1. d.
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
  1. e.
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee’s conduct, and
  1. f.
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee’s potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  1. g.
    whether further information is required to make a decision to commence a disciplinary process, and
  1. h.
    for a breach of relevant standard of conduct under section 91(1)(h) , that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

7.3  Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee’s performance until the chief executive has complied with the directive about positive performance management.

9.  Discipline process

…

9.3  Show cause process for disciplinary finding

  1. a.
    the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
  1. b.
    written details of each allegation in clause 9.3(a) must include:
  1. i.
    the allegation
  1. ii.
    the particulars of the facts considered by the chief executive for the allegation
  1. iii.
    the disciplinary ground under section 91 of the Act that applies to the allegation
  1. c.
    when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
  1. d.
    a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
  1. e.
    the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
  1. f.
    if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.

…

  1. [50]
    The PPM Directive relevantly provides:

 4 Principles

 …

4.3 Management of all employees must be directed towards the positive performance principles in section 25A of the PS Act.

4.4 Timely, open and regular, constructive communication is the mutual responsibility of managers and employees, who should work together to improve work performance outcomes.

4.5 Section 26 of the PS Act requires managers to proactively manage employees' work performance and to take prompt and appropriate action if unacceptable work performance arises.

4.6 Section 186C of the PS Act requires a chief executive to apply positive performance management principles before taking disciplinary action for work performance.

4.7 Under the Human Rights Act 2019, decision makers have an obligation to act and make decisions in a way that is compatible with human rights, and when making a decision under this directive, to give proper consideration to human rights.

5 Positive performance management

5.1 Section 25A of the PS Act provides that the management of public service employees must be directed towards the positive performance management principles:

  …

(e) providing opportunities and support to employees for improving performance

(f) continuously improving performance through the provision of training and development

(g) identifying at the earliest possible stage performance that does not meet expectations

(h) integrating the matters mentioned in paragraphs (a) to (g) into management policies and practices.

5.2 Chief executives are required to integrate the positive performance management principles into their agency's management practices and policies.

5.3 Managers are required to incorporate the positive performance management principles into their management practices.

6 Processes for managing employee work performance

  Positive performance management

6.1 Agencies must incorporate the positive performance management principles and the processes detailed in clauses 5.1 - 5.3 into their policies and processes about managing employee work performance to ensure:

(a) managers set clear expected outcomes linked to organisational performance objectives and plans, including through the use of performance development agreements in lined with agency policies

(b) managers provide regular and constructive feedback on an employee's work performance, including recognising work performance that meets and exceeds expectations, and feedback on areas of work performance that need improvement, as is appropriate in the circumstances

(c) managers promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct

(d) constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector.

7 Decision to commence a structured process to manager unacceptable work performance in a supportive way

7.1 The process for managing unacceptable work performance must be supportive, directed to the positive performance management principles, and take into account factors (work related and non-work related) that may be affecting the employee:

  …

7.2 The chief executive may initiate a performance improvement plan (PIP) as a structured process to address unacceptable work performance where the chief executive considers it fair and reasonable in the circumstances.

7.3 Prior to determining whether it is fair and reasonable to initiate a PIP, the chief  executive must ensure the following conditions have been met:

(a) the expected level of work performance for the role was documented and provided to the employee and the employee had a reasonable opportunity to demonstrate the expected level of work performance

(b) the expected level of work performance was relevant and appropriate to the role

(c) the unacceptable work performance or the gap between actual and expected work performance was previously raised, documented and discussed with the employee

(d) the employee was offered appropriate support and allowed a reasonable period of time to self-correct.

 …

 9 Definitions

Management action is a course of local action that is reasonably open to a manager to support and correct situations of employee conflict, poor work performance or unacceptable behaviours at the earliest possible opportunity.

Consideration of the disciplinary findings

  1. [51]
    I will now consider whether GCHHS's determination to substantiate the ten allegations was fair and reasonable.

Balance of probabilities

  1. [52]
    The decision maker determined to substantiate the ten allegations on the 'balance of probabilities'.  The wording of Briginshaw v Briginshaw ('Briginshaw')[22] is incorporated into the Disciplinary Directive, and there is no contention that said principle does not apply in this instance. 
  1. [53]
    The Discipline Directive prescribes that:

 … For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

  • relevance of the evidence to the allegations
  • seriousness of the allegations
  • inherent likelihood or improbability of a particular thing or event occurring
  • gravity of the consequences flowing from a particular finding.[23]
  1. [54]
    In civil matters, the standard of proof is the balance of probabilities.[24]  The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed.  As explained by Dixon J in Briginshaw:

… it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences…

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[25]

  1. [55]
    It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur.  It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'.  Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence.  In Chamberlain v The Queen (No 2) [26] Gibbs CJ and Mason J provided:

When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged …[27]

  1. [56]
    The question is then whether it was open for the decision maker to be reasonably satisfied of each of the substantiated disciplinary findings.  That question informs whether the decision was fair and reasonable.  It is not a hearing de novo.
  1. [57]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors[28] (emphasis added, citations removed):

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.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. [29]

The Allegations

  1. [58]
    The Respondent alleged the following:

Allegation one

On 5 March 2020 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you accessed a file note from a meeting on 5 March 2020 discussing patient UR 812429.

Allegation two

On 5 March 2020 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed yourself a file note completed by Susan Jones without approval or delegated authority.

Allegation three

On 10 May 2020 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed various persons, a document titled 'Re********IMPORTANT   PLEASE   READ*********' which was also copied to [email protected] without approval or delegated authority.

Allegation four

On 4 June 2020 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you printed and then emailed yourself progress notes of patient UR 363281 without approval or delegated authority.

Allegation five

On 20 March 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you sent an email from [email protected] to Susan Jones and Shirley Nield (work) dated 20 March 2021 titled 'Re Incident with Shirley Nield and Gino Pablo URN 574847' containing SBAR of patient incident without approval or delegated authority.

Allegation six

On 21 March 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed yourself a file note dated 21 March 2021 titled 'Gina Pablo Reconciliation without approval or delegated authority.

Allegation seven

On 22 July 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed yourself information regarding patient URN 715584 without approval or delegated authority.

Allegation eight

On 13 October 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed from [email protected] to [email protected] and [email protected] titled 'Fw: SBAR No adequate PPE, exposed staff to possible occupational body fluids' without approval or delegated authority.

Allegation nine

On 13 October 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed from [email protected] to [email protected] titled 'Discussion regarding Riskman 347938, UNR 1085260: SBAR' without approval or delegated authority.

Allegation ten

On 13 October 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed from [email protected] to Shirley Nield (work) titled 'FW SBAR Blood Transfusion Delay' without approval or delegated authority.

Allegation eleven

On 13 October 2021 you failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you emailed from [email protected] to [email protected] titled 'Re: Night Shift to AM handover Beds 1 and 2' without approval or delegated authority.

Allegation 1

  1. [59]
    In its Decision Letter, the Respondent accepted Ms Nield's response to Allegation 1. 
  1. [60]
    The Respondent found that Ms Nield had not "failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service when you accessed a file note from a meeting on 5 March 2020 discussing patient UR 812429" because the file note was a copy given to her by Ms Sue Jones, Nurse Unit Manager.  Ms Nield had not accessed it from a source without permission.
  1. [61]
    On that basis, the Respondent determined that Allegation 1 was not substantiated.

Consideration

Did Ms Nield engage in the conduct subject of Allegations 2 - 11?

  1. [62]
    The remaining ten allegations were said to have occurred on 7 different dates, over an 18-month period. 
  1. [63]
    I accept that four of those allegations occurred on the same date and "relate in their entirety to the submission of a workplace concern to the Appellant's upline manager, Ms Sue Samuels (Assistant Director of Nursing) by the Appellant to the Respondent on 13 October 2021."[30]
  1. [64]
    The ten allegations against Ms Nield, that are subject of this appeal, each contain some common themes:
  • That Ms Nield "failed to take reasonable steps to protect information collected and/or stored by Gold Coast Hospital and Health Service", where she:
  • emailed herself various documents (file notes, patient progress note, patient incident report note, workplace health and safety incident notes) to and from her personal and work email addresses;
  • sent a document about a patient incident from her personal email address to both the work email addresses of Ms Susan Jones NUM and herself;
  • sent documents about workplace health and safety / grievance from her personal email address to both the work email addresses of her assisting QNMU union officer and herself.
  • That Ms Nield did so "without approval or delegated authority".
  1. [65]
    The allegations were put to Ms Nield for her response.  She did so in correspondence dated 5 December 2022. 
  1. [66]
    In her Response Letter,[31] Ms Nield explained that:
  • the documents she emailed to herself were evidence she had gathered, in support of a workplace grievance against her NUM;
  • that grievance "alleged repeated and unreasonable behaviour directed towards me that created risks for my health and safety" and her perception of that treatment "caused me to feel anxious and depressed";
  • she sent many emails to her personal email account for "the limited purpose of preparing my complaint and most did not contain health information";
  • she "was not thinking about the health information that some of them contained" and she was "stressed and pressured because I was attempting to draft a complaint about my line manager";
  • "Had my mind turned to the fact the emails contained health information, I would not have sent them to my personal account".
  1. [67]
    In that correspondence, Ms Nield honestly and openly acknowledged her mistake:

I acknowledge and accept that work emails containing patient information should not be sent to a personal email account.  I also acknowledge that misuse of a person's health information is a serious matter and could result in profound consequences.  Furthermore, there is a not insignificant potential for a negative outcome for the individual, Queensland Health or the loss of public confidence in the health system if health information is compromised.

…

I acknowledge that I should not have sent health information to my private email address especially those with personal names & URN.  I am remorseful and this will not happen again.

  1. [68]
    Ms Nield also provided clear undertakings about her future conduct:

The experience of receiving Ms Samuels' correspondence and the show cause letter has been a wakeup call.  I thank you for reminding me of the importance of ensuring health information is stored confidentially and securely and is only used for authorised purposes such as the provision of patient care.

In future, I will not send emails containing patient information otherwise than in accordance with my obligations as a Queensland Health employee and registrant.

…

Regarding the issue of delegated authority, I will in the future liaise with Human Resources before accessing documents I wish to use in a complaint so that necessary approvals / authority can be obtained.

…

Regarding the issue of delegated authority, I will in the future liaise with Human Resources before accessing documents, including my own SBAR that I have generated and the relevant documents to be provided to the appropriate QNMU officials, I wish to use in a complaint so that approvals / authority can be obtained.

  1. [69]
    Whilst accepting responsibility for her actions, Ms Nield outlined the security measures in place that reduced the risk of health information being accessed by third parties.  She stated:

Although I accept my responsibility for sending these emails in relation to the allegations below, please take into consideration that I have certain security measures in place that reduce the risk that health information could have been accessed by third parties, including:

  • My computer has a firewall already built in and automatically turned on.
  • I keep all my software up to date, to ensure to turn on automatic updates to keep all my applications up to date.
  • I use antivirus software and keep it current.
  • I have Windows Security already installed on my device.
  • My password is well-chosen and protected.
  • I do not open suspicious attachments or click unusual links in messages.
  • I browse the web safely.
  • I do not use pirated material.  I do not stream or download movies, music, books or applications that do not come from trusted sources, as they may contain malware.
  • I only use USBs or other external devices that I own or from a reliable source.

I do however accept that these measures do not wholly mitigate the risk that health information could be compromised and the fact that they are in place does not excuse me from the consequences of my actions.

…

There was only a mention of the patient's first name.  Therefore, the risk the patient could have been identified in the event the information was compromised is reduced.[32]

…

There was only a mention of the URN, no patient's name.  Therefore, the risk the patient could have been identified in the event the information was compromised is reduced.[33]

…

The other person emailed is the Queensland Nurses and Midwives Union (QNMU) organiser.  The email used is the QNMU email, not a personal email.  The QNMU maintains confidentiality and stores emails securely.

  1. [70]
    Ms Nield accepted that she engaged in the conduct of sending the various emails, subject of Allegations 2 - 11.
  1. [71]
    Whilst noting the security measures Ms Nield has in place that reduced the risk of health information being accessed by third parties, she accepted responsibility for her actions.[34]
  1. [72]
    Ms Nield has admitted that she emailed various documents to and from her work and personal email addresses, to other GCHHS colleagues who were "part of a team awaiting clarification and solution regarding an incident" and to her assisting QNMU union officer on the particular occasions.
  1. [73]
    With respect to whether or not Ms Nield engaged in the conduct "without approval or delegated authority", I note that she has freely offered the undertaking to liaise with Human Resources before accessing documents she may wish to use in a complaint in future, so that necessary approvals / authority can be obtained.[35]

Could the decision-maker be 'reasonably satisfied' that the discipline ground has been established?

  1. [74]
    Section 91 of the PS Act prescribes that a chief executive "may discipline the employee if the chief executive is reasonably satisfied the employee has" done the "act or omission" constituting the disciplinary ground.  Though the section goes on to clarify that:

To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.[36]

  1. [75]
    In this appeal, Ms Nield challenges the disciplinary finding made by GCHHS.  A disciplinary finding means a finding that a disciplinary ground exists.[37]
  1. [76]
    The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act.  That includes where the employee has "been guilty of misconduct".[38] 
  1. [77]
    In the Decision Letter dated 30 December 2022, Mr Hoy stated his disciplinary finding in this matter to be (emphasis added):

On the basis of my findings in relation to allegations 2 - 11, I have determined that pursuant to section 187(1)(b) of the Act, you may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 187(4)(a) of the PSA.

  1. [78]
    Only where a discipline ground exists, can there be any subsequent consideration of whether or not disciplinary action should be taken.  The Appellant asserted that the use of the word "may" above means that "The Respondent has failed to arrive at an affirmative finding of misconduct".  I accept that, in order for the chief executive to be 'reasonably satisfied', more is required than a determination that Ms Nield may be guilty of misconduct.  That is not sufficient.
  1. [79]
    It is also curious that whilst the disciplinary finding contained in the Decision Letter specified the disciplinary ground to be "misconduct",[39] the Respondent's submissions now shift its position to the disciplinary ground of "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."[40]  That is not permissible.  Ms Nield appealed GCHHS' disciplinary finding, the definition of that term includes a ground for disciplining her that the decision-maker identified to be "misconduct".  This appeal deals with whether or not that disciplinary finding was fair and reasonable.  It is not open for the Respondent to swap 'misconduct' out for an alternative ground, mid-appeal.
  1. [80]
    The QNMU submitted that Ms Nield has not engaged in 'misconduct' within the meaning of the PS Act.  In doing so, the union referenced the Explanatory Note at s 187 of the Public Service Act 2008 that expands on the definitions of misconduct that relevantly explains it to be "inappropriate or improper conduct in an official capacity or in a private capacity reflecting seriously and adversely on the public sector."[41]  The union submitted that GCHHS "has not alleged or substantiated any finding that (Ms Nield's) actions or conduct may reflect 'seriously and adversely' on the public service." 
  1. [81]
    The Respondent countered the QNMU's argument, submitting that:

… misuse of information through inappropriate dissemination to uncontrolled external email providers creates a significant risk to GCHHS as it is not authorised and uncontrolled without the safeguards of information security employed by Queensland Health.  Risk relates to further potential uncontrolled dissemination as well as data breaches within third-party provider systems.  Further, National Privacy Principles relate to the appropriate collection, storage and dissemination of personal information.  The Respondent considers reputational risks to the organisation, legal risks, and impacts on involved persons the medical information relates to, warrant the view the actions would 'seriously and adversely' impact the public service.[42]

  1. [82]
    While the decision maker stated that Ms Nield does "not have authorisation to access confidential clinical, patient, and staff information to prepare a complaint of inappropriate conduct towards you", the QNMU submitted:

… this misrepresents the objectively verifiable facts of the matter which include,

a. the Appellant did have legitimate access to records she accessed in the course of her duties as a CN for the Respondent, and

b.  she redacted identifying details from confidential information she sent, and

c.   in relation to allegations 1, 2 and 6, the Respondent provided the Applicant a copy of the file note for her own records, and

d.   in relation to all other allegations the Appellant took steps to redact, remove or obscure any confidential information.[43]

  1. [83]
    The Respondent later clarified it meant that Ms Nield "has the authorisation when directly relating to the performance of her duties and that the access to the records on the occasions listed in the allegations were not for an approved or authorised purpose"[44] and acknowledged the actions taken by her to redact the material reduced the risk of patient identification.
  1. [84]
    Also relevant is the QNMU's assertion that "the level of detail was similar to or less than that which the employer transmits to third parties, including the QNMU, on a regular basis as show in Attachment 1."[45]  It does appear to me that a different standard has been applied to Ms Nield in this matter.
  1. [85]
    The consideration of "misconduct" under s 91 of the PS Act is central to this matter.
  1. [86]
    In the recent case of Ball v State of Queensland (Queensland Corrective Services) ('Ball')[46] O'Connor VP relevantly explained (emphasis added, citations omitted):

 [79] Apart from the definition of misconduct in s 187(4), the PS Act does not provide guidance as to what is meant by 'inappropriate' or 'improper' conduct.

 [80] In Mathieu v Higgins & Anor, Daubney J was called upon to determine whether the conduct of a Paramedic in the performance of his duties constituted misconduct as defined in s 10(a) of the Queensland Ambulance Service ('QAS') Policy.  The term 'misconduct' is defined as 'disgraceful or improper conduct in an official capacity'.

  …

 [83] Daubney J, in considering s 10(a) of the QAS Policy, was of the view that it is not appropriate to rigidly separate the definition into its component parts; the words 'disgraceful' and 'improper' are included in the definition as alternatives, but nonetheless should not be regarded as wholly independent.  Rather, each term should be read as giving colour to the other.   His Honour held that:

   '[M]isconduct', as used in the policy, contemplates something more than mere incompetence, or a failure to attain the established standards of conduct.  As the policy stands, 'misconduct', to adapt the words of Kirby P (as his Honour then was), requires a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by ambulance officers.

 [84] Daubney J cited, with approval, the reasoning of Kirby P (as his Honour then was) in Pillai v Messiter (No.2) which addressed the meaning of the expression, 'misconduct in a professional respect' in the Medical Practitioners Act 1938 (NSW).  Kirby P said:

   But the statutory test is not met by mere professional incompetence or by deficiencies in the practice of the profession.  Something more is required.  It includes a deliberate departure from accepted standards or such serious negligence as, although not deliberate, to portray indifference and an abuse of the privileges which accompany registration as a medical practitioner.

  1. [87]
    In Ball, O'Connor VP went on to cite with approval Merrell DP's considerations of 'misconduct' in Coleman v State of Queensland (Department of Education)[47] in these terms (emphasis added):

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[48]

  1. [88]
    Merrell DP adopted the same approach in The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service,[49] in which he also held that (emphasis added):

In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[50]

  1. [89]
    With the above criterion firmly in mind, I do not believe that Ms Nield's actions amounted to 'misconduct'. 
  1. [90]
    That is because Ms Nield did not 'deliberately depart' from accepted standards, engage in 'serious negligence to the point of indifference', or 'abuse the privilege and confidence enjoyed by a public sector employee'.
  1. [91]
    In arriving at this decision, I consider the following QNMU submissions to be particularly helpful:

In the letter and attachments inviting the Appellant to show cause, the Respondent asserted a clear position asserting the Appellant required approval or delegated authority to email records.  This information was not within the prior knowledge of the Appellant.

  …

The Appellant determined to acknowledge the Respondent's direction, and apologise for her action, in the context of the newly available information.

The Respondent provided a list of information they intended to rely on in making a decision, including material unlikely to be within the knowledge of a clinical nurse,

a. Gold Coast Hospital and Health Service Privacy Plan, and

b. Parts 6 to 7 of the Explanatory Notes, Health and Hospitals Network Bill 2011, and

c. Queensland Health Fact Sheet: How to email secure information, and

d. Public Service Commission Private Email Use Policy.

The Respondent failed to assert or demonstrate the Appellant held prior knowledge of these documents or their content.  She did not.[51]

…

… the Appellant had a reasonable excuse at all times for her actions, in that she was,

g. refuting performance concerns (the grievance), and / or

h. exercising herself as a union delegate, and / or

i. raising concerns in her workplace including, but not limited to,

i. patient safety, and

ii staff safety, and

iii consultation, and

iv staff communication and updates.[52]

  1. [92]
    Of further assistance was the Respondent's submissions in response to the Appellant's position that there was "a lack of training or direction relevant to transmitting information or redacting records".  The Respondent advised that the Appellant's Online Learning records showed the following relevant training had been completed by Ms Nield:
  1. Information Privacy Training, completed on 26 November 2013
  1. ieMR - Nursing, completed on 25 January 2019
  1. ieMR - General, completed on 17 February 2020
  1. Ethics, Integrity and Accountability, completed on 10 September 2021[53]
  1. [93]
    The training of most relevance to the conduct subject of the allegations against Ms Nield appears to be 'Information Privacy Training', which I note was completed almost ten years ago.  Given GCHHS has proposed disciplinary action as severe as both a reprimand and a reduction in classification level, the Respondent would be better placed to level such criticism of an employee in circumstances where it could demonstrate that such directly relevant training had been currently and comprehensively conducted. 
  1. [94]
    For all those reasons above, I find that Ms Nield had not engaged in 'misconduct' within the meaning of s 91 of the PS Act.  The disciplinary finding was not fair and reasonable.
  1. [95]
    I now turn to the consideration of the appropriate Orders.

Consideration of appropriate Orders

  1. [96]
    I have earlier accepted GCHHS' submission that "… the disciplinary action proposed (a reprimand and a reduction in classification level) is not a 'decision' and the show cause process is yet to run its course to a final determination regarding any disciplinary action to be imposed."[54] 
  1. [97]
    However, I have found that the decision maker's disciplinary finding decision was not fair and reasonable.
  1. [98]
    As I have found that the Respondent cannot be 'reasonably satisfied' that Ms Nield has "been guilty of misconduct", it follows then that the disciplinary action proposed cannot stand.
  1. [99]
    There is no authority for the Respondent to impose a disciplinary action against Ms Nield under the PS Act, where the disciplinary ground is insupportable and thence the disciplinary finding subject of this appeal is disturbed.  That is the case here.
  1. [100]
    That provides opportunity and scope to further consider how the matter may be more appropriately managed.
  1. [101]
    The QNMU requested that the Commission substitute a decision to "return the matter to the Respondent for non-disciplinary management action consistent with the Public Service Directive 15/20 - Positive Performance Management."
  1. [102]
    That reasoning is supported with reference to the Discipline Directive.  Clause 7 'Requirements to commence a discipline process' details the decision criteria for assessing whether to commence a disciplinary process and provides that:

… a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises.  A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act.  An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

  1. [103]
    In light of Ms Nield's open acknowledgement of her actions and freely given undertakings regarding her future conduct, it is clear that this is a case in which management action is eminently suited. 
  1. [104]
    The Discipline Directive contains the principles that (emphasis added):

4.7 A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct.  Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:

  • the end of unacceptable conduct
  • early resolution
  • preserving working relationships, and
  • avoiding an unnecessary and disproportionately protracted dispute.

4.8 Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

  1. [105]
    Importantly, the Discipline Directive defines 'management action' as:

… independent of the disciplinary process and should be considered as the first response and / or alternative to the disciplinary process in managing unacceptable conduct or performance … If appropriate, management action can replace an ongoing disciplinary process at any stage.  While not limited, management action is predominantly focused on correction action.[55]

  1. [106]
    I have recognised that GCHHS has not yet 'determined' the disciplinary action, but rather has only 'proposed' it.  With reference to the mandatory decision criteria contained in the Discipline Directive, I have explained why I consider 'management action' to be the appropriate course on the evidence before me. 
  1. [107]
    Certainly, there appears to be great potential for the precise nature of the appropriate management action support to be settled by agreement between the parties - though the question of precisely what management action(s) is appropriate in these circumstances is beyond the scope of this Appeal.
  1. [108]
    I order accordingly.

Orders:

Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with the following decision:

1.   The decision maker's determination to substantiate Allegations 2 – 11 was fair and reasonable.

2.   Ms Nield's actions do not amount to 'misconduct'.

3. The disciplinary finding was not fair and reasonable.

4.   'Management action' is the appropriate course to address GCHHS's concerns about Ms Nield's use of her personal email.

Footnotes

[1] Appeal Notice filed 27 February 2023, Schedule 1, [3].

[2] Ibid Schedule 1, [62].

[3] Ibid Schedule 1, [3].

[4] Appeal Notice filed 27 February 2023, Attachment 1, 7.

[5] Ibid Attachment 2, 10.

[6] Ibid 3.

[7] Ibid Attachment 3.

[8] Ibid Attachment 3, 25.

[9] Ibid Attachment 3, 25.

[10] Ibid Attachment 3, 26.

[11] Ibid Attachment 3, 26.

[12] Directions Order issued 28 February 2023.

[13] Appeal Notice filed 27 February 2023, Schedule 1.

[14] Respondent's submissions filed 9 March 2023, 1, [3].

[15] Industrial Relations Act 2016 (Qld) s 562B(3).

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

[17] Dated 30 December 2022.

[18] Respondent's submissions filed 9 March 2023, 6.

[19] Applicant's reply submissions filed 14 March 2023, 5-9.

[20] Appeal Notice filed 27 February 2023, Schedule 1, 8.

[21] Public Sector Act 2022 (Qld) s 3.

[22] (1938) 60 CLR 336. 

[23] Directive 05/23: Discipline, 'Definitions'.

[24] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd (1992) 67 ALJR 170, 170-171.

[25] Briginshaw v Briginshaw (1938) 60 CLR 336, 363.

[26] (1984) 153 CLR 521.

[27] Chamberlain v The Queen (No 2) (1984) 153 CLR 521, 536.

[28] [2019] QSC 170.

[29] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[30] Appeal Notice filed 27 February 2023, Schedule 1, 6.

[31] Dated 5 December 2022.

[32] With respect to Allegation 3.

[33] With respect to Allegations 4, 7, 8, 9, 10, 11.

[34] See [69] of this Decision.

[35] Correspondence from Ms Nield to GCHHS dated 5 December 2022.

[36] Public Sector Act 2022 (Qld) s 90(4).

[37] Ibid s 90.

[38] Ibid s 91(1)(b).

[39] Public Service Act 2008 (Qld) 187(1)(b).

[40] Ibid s 187(1)(g); Respondent's submissions filed 9 March 2023, [12](i).

[41] Emphasis added.

[42] Respondent's submissions filed 9 March 2023, [12].

[43] Appeal Notice filed 27 February 2023, Schedule 1, [16].

[44] Respondent's submissions filed 9 March 2023, [12].

[45] A redacted copy of such documentation was attached to the reply submissions filed 14 March 2023.

[46] [2021] QIRC 116.

[47] [2020] QIRC 032.

[48] Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116 [86], citing Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 13 [62].

[49] [2020] QIRC 067.

[50] Ibid [36].

[51] Appellant's reply submissions filed 14 March 2023, [3] – [7]

[52] Ibid [14].

[53] Respondent's submissions filed 9 March 2023, [12].

[54] See [25] of this Decision.

[55] Directive 05/23: Discipline, ‘Definitions'.

Close

Editorial Notes

  • Published Case Name:

    Nield v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Nield v State of Queensland (Queensland Health)

  • MNC:

    [2023] QIRC 294

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    12 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
Ball v State of Queensland (Queensland Corrective Services) [2021] QIRC 116
3 citations
Jump To
Cite 1 - [2021] QIRC 116
Cite 2 - [2021] QIRC 116
Cite 3 - [2021] QIRC 116
Barker v Queensland Fire and Rescue Authority [2000] QSC 395
1 citation
Jump To
Cite 1 - [2000] QSC 395
Briginshaw v Briginshaw (1938) 60 C.L.R 336
3 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Gilmour v Waddell [2019] QSC 170
3 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Cite 3 - [2019] QSC 170
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd (1992) 67 ALJR 170
2 citations
Jump To
Cite 1 - (1992) 67 ALJR 170
Cite 2 - (1992) 67 ALJR 170
R v Chamberlain (1984) 153 C.L.R 521
3 citations
Jump To
Cite 1 - (1984) 153 C.L.R 521
Cite 2 - (1984) 153 C.L.R 521
Cite 3 - (1984) 153 C.L.R 521
The Australian Workers' Union of Employees, Queensland v Gold Coast Hospital and Health Service [2020] QIRC 67
2 citations
Jump To
Cite 1 - [2020] QIRC 67
Cite 2 - [2020] QIRC 67

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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