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Phillips v State of Queensland (Department of Transport and Main Roads)[2024] QIRC 118

Phillips v State of Queensland (Department of Transport and Main Roads)[2024] QIRC 118

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Phillips v State of Queensland (Department of Transport and Main Roads) [2024] QIRC 118

PARTIES:

Phillips, Helen

(Applicant)

v

State of Queensland (Department of Transport and Main Roads)

(Respondent)

CASE NO.:

TD/2023/29

PROCEEDING:

Application for reinstatement

HEARING DATES:

5 and 6 February 2024

DELIVERED ON:

17 May 2024

DATES OF FINAL SUBMISSIONS:

Applicant's written submissions filed on 5 March 2024 and on 2 April 2024

Respondent's written submissions filed on 26 March 2024

MEMBER:

Merrell DP

HEARD AT:

Brisbane

ORDERS:

The Directions Orders contained in paragraph [110] of these reasons for decision.

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – OTHER MATTERS – APPLICATION FOR REINSTATEMENT – Applicant employed by the Respondent in the Department of Transport and Main Roads in the position of Manager, (Development, Compliance and Support) classification AO8 – in September 2021, the Applicant was directed, pursuant to ch 5, pt 7 of the Public Service Act 2008, to attend an independent medical examination given her  continuous absence from the workplace from May 2020 – Applicant unsuccessfully challenged that direction in various forums – Applicant attended independent medical examination in October 2022 – medical practitioner reported that the Applicant was fit to return to work  –   Respondent proposed that Applicant return to work but that the Applicant be transferred, pursuant to s 133 of the Public Service Act 2008,  to another position,  namely, Program Manager, (Active Transport) classification AO8 – Applicant responded by contending the transfer was not reasonable – Respondent determined the transfer was reasonable – Applicant appealed transfer decision to the Queensland Industrial Relations Commission under the Public Service Act 2008  – Queensland Industrial Relations Commission confirmed that the transfer was reasonable –  Respondent directed that the transfer would take effect on 14 February 2023 – Applicant did not attend the workplace the subject of the transfer direction on the basis that the Applicant's treating general practitioner needed to review a return to work plan before the Applicant's return to work – Respondent then directed that the transfer would take effect on 27 February 2023 – Applicant did not attend the workplace the subject of the transfer direction on 27 February 2023 because her general practitioner had approved a return to work plan for the Applicant, on reduced hours subject to further review and provided a work capacity certificate certifying her capacity for work if suitable duties were available – the Respondent then, pursuant to s 134(2) of the Public Service Act 2008, dismissed the Applicant for refusing the transfer – Applicant applied for reinstatement – whether the Applicant's dismissal was unfair within the meaning of the Industrial Relations Act 2016 – whether the Applicant refused the transfer – whether the Applicant was given an opportunity to respond  to the conclusion she had refused the transfer before being dismissed – dismissal was unfair within the meaning of the Industrial Relations Act 2016 – further directions orders made for the purposes of determining remedy

LEGISLATION:

Acts Interpretation Act 1954, s 14A

Industrial Relations Act 2016, s 316, s 319, s 320, s 321 and s 322

Public Sector Act 2022, s 12, s 13 , s 14, s 161, s 162, s 289, s 299 and sch 2

Public Service Act 2008, s 133, s 134, s 177 and s 178

CASES:

Blows v Townsville City Council [2016] QIRC 066

Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410

Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378

Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258

John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82

Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408

Phillips v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 019

Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362

APPEARANCES:

The Applicant on her own behalf

Ms H. Brown, Ms A. Rogers and Ms R. Storm of the Department of Transport and Main Roads for the Respondent

Reasons for Decision

Introduction

  1. [1]
    Ms Helen Phillips was employed by the State of Queensland, through the Department of Transport and Main Roads ('the Department'). Ms Phillips commenced employment in the Department on 9 January 2006 and was dismissed effective 2 March 2023.
  1. [2]
    The reason for Ms Phillips' dismissal, as contained in an undated letter from Mr Joshua Hannan, General Manager (Transport, Strategy and Planning) that Ms Phillips received on 2 March 2023 ('the dismissal letter'), was that she had refused Mr Hannan's earlier decision to transfer her from one position to another ('the transfer').
  1. [3]
    The transfer was from her position of Manager, (Development, Compliance and Support) in the Development Facilitation Unit of the Transport Strategy and Planning ('TSP') Branch, classification AO8 ('substantive position') to the position of Program Manager (Active Transport) in the Cycling and Walking Unit of the TSP Branch, classification AO8 ('transfer position').
  1. [4]
    The decision to transfer Ms Phillips from her substantive position to the transfer position was made by Mr Hannan pursuant to s 133(1) of the Public Service Act 2008 ('the PS Act').
  1. [5]
    The decision to dismiss Ms Phillips was made by Mr Hannan pursuant to s 134(2) of the PS Act.
  1. [6]
    By application filed on 6 March 2023, Ms Phillips applies to this Commission for reinstatement on the basis that her dismissal was unfair. Ms Phillips' principal contention is that her dismissal was unfair because she did not refuse the transfer. Ms Phillips also contended that her dismissal was invalid because the Department, in dismissing her, purported to rely on a section of the PS Act that had been repealed.
  1. [7]
    The Department claims Ms Phillips' dismissal was fair because she refused the transfer and her dismissal was otherwise valid.
  1. [8]
    The questions for my determination are:
  • was Ms Phillips' dismissal valid? and, if so
  • was Ms Phillips' dismissal unfair within the meaning of s 316 of the Industrial Relations Act 2016 ('the IR Act')?
  1. [9]
    For the reasons that follow, Ms Phillips' dismissal was valid but was unfair within the meaning of the IR Act.
  1. [10]
    Because the parties did not lead any evidence about the issue of remedy, I will issue further directions orders for the hearing and determination of that discrete issue.

The Industrial Relations Act 2016 and the applicable legal principles

  1. [11]
    Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust or unreasonable.
  1. [12]
    A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted.  Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer.  Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is disproportionate to the gravity of the misconduct in respect of which the employer acted.[1]
  1. [13]
    In many cases, the concepts of harshness, unjustness or unreasonableness will overlap.[2]
  1. [14]
    Section 320 of the IR Act relevantly provides that in deciding whether a dismissal was harsh, unjust or unreasonable, the Commission must consider:
  • whether the employee was notified of the reason for dismissal;
  • whether the dismissal related to:
  1. –the operational requirements of the employer's undertaking, establishment or service; or
  2. –the employee's conduct, capacity or performance; and
  • if the dismissal relates to the employee's conduct, capacity or performance:
  1. –whether the employee had been warned about the conduct, capacity or performance; or
  2. –whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and
  • any other matters the Commission considers relevant.
  1. [15]
    In an unfair dismissal case, an applicant carries the onus of proving that the dismissal was harsh, unjust or unreasonable.[3]
  1. [16]
    If it is determined that an employee's dismissal was not authorised by the PS Act, that may lead to a conclusion that the dismissal was 'unjust' within the meaning of the IR Act.[4]

The relevant provisions of the Public Service Act 2008

  1. [17]
    Chapter 5, pt 7 of the PS Act (Mental or physical incapacity) relevantly provided:

177  Medical examination report

  1. (1)
    The report on the medical examination must include the examining doctor’s opinion as to whether the employee has a mental or physical illness or disability that may adversely affect the employee’s performance.
  2. (2)
    If the doctor considers the employee has an illness or disability mentioned in subsection (1), the report must also include the doctor’s opinion as to the following–
  1. (a)
    the likely direct or indirect effect of the illness or disability on the employee’s performance;
  2. (b)
    an estimate of how long the illness or disability or its effects are likely to last;
  3. (c)
    whether or not disclosing the information in the report to the employee might be prejudicial to the employee’s mental or physical health or wellbeing.
  1. (3)
    If the doctor’s opinion is that the disclosure will not be prejudicial to the employee’s mental or physical health or wellbeing, the chief executive must give the employee a copy of the report as soon as practicable after receiving it.
  2. (4)
    If the doctor’s opinion is that the disclosure might be prejudicial to the employee’s mental or physical health or wellbeing, the chief executive must not disclose the contents of the report to the employee.
  3. (5)
    However, if asked by the employee in writing, the chief executive must make the disclosure to another doctor nominated by the employee in the request.

178  Action following report

  1. (1)
    If, after considering the report of the medical examination, the chief executive is reasonably satisfied the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability, the chief executive may–
  1. (a)
    transfer or redeploy the employee; or
  2. (b)
    if it is not reasonably practicable to transfer or redeploy the employee–retire the employee from the public service.
  1. (2)
    Subsection (1) does not limit the action that may be taken relating to the employee.
  1. [18]
    Chapter 5, pt 3 (Transfers and redeployment) of the PS Act provided:

133  Chief executive’s power to transfer or redeploy

  1. (1)
    The chief executive of a department may transfer or redeploy a public service officer of the department within the department.
  2. (2)
    The chief executive of a department may, with the approval of the chief executive of another department, transfer or redeploy a public service officer of the other department to the first department.
  3. (3)
    Despite subsections (1) and (2), a redeployment may be made only with the officer’s consent.
  4. (4)
    The transfer or redeployment of a public service officer under this section–
  1. (a)
    may involve a change in the location where the officer performs duties; and
  2. (b)
    if the officer is employed on contract–has effect despite anything in the contract.

134  Consequence if transfer refused

  1. (1)
    If a public service officer is transferred under section 133, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive.
  2. (2)
    If the officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer.
  3. (3)
    If the officer establishes reasonable grounds to the chief executive’s satisfaction–
  1. (a)
    the transfer is cancelled; and
  2. (b)
    the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement.
  1. [19]
    The Department acted on the basis that the provisions contained in ch 5, pt 3 of the PS Act were the source of power for a chief executive to transfer a public service employee, pursuant to s 178(1)(a) of the PS Act, following the chief executive's consideration of a medical report obtained under s 177 of the PS Act.

Undisputed background

  1. [20]
    There is a history of events leading to Mr Hannan's decision to dismiss Ms Phillips. I do not understand there to be any material dispute about them.
  1. [21]
    In broad terms, the relevant events are:
  • from 25 May 2020, Ms Phillips was continuously absent from her substantive position;
  • as a consequence, by letter dated 6 September 2021, Mr Hannan, pursuant to ch 5, pt 7 of the PS Act, directed Ms Phillips to be examined by a psychiatrist on 8 October 2021;
  • that medical examination did not take place because Ms Phillips, by internal review, and then by appeal to this Commission pursuant to ch 7 of the PS Act, challenged (unsuccessfully) the direction that she be examined by a psychiatrist on 8 October 2021;
  • on 13 April 2022, Mr Hannan, pursuant to ch 5, pt 7 of the PS Act, further directed that Ms Phillips be examined by a psychiatrist on 7 June 2022, being a direction Ms Phillips attempted to challenge in this Commission, but which was unsuccessful on jurisdictional grounds, the consequence of which was that the direction, that Ms  Phillips be examined by a psychiatrist on 7 June 2022, stood;
  • on 30 May 2022, Ms Phillips provided Mr Hannan with medical advice in support of her undertaking overseas travel, the consequence of which was that the examination by the psychiatrist was rescheduled to 31 August 2022;
  • Ms Phillips did not attend the examination rescheduled to 31 August 2022 by reason of her feeling unwell following her receiving a COVID-19 booster vaccination on 30 August 2022, such that the examination by the psychiatrist was further rescheduled to 29 September 2022;
  • Ms Phillips attended the further rescheduled examination and was examined by Dr Donald Grant, Psychiatrist, on 29 September 2022 and, as a consequence, pursuant to s 177 of the PS Act, a medical report dated 4 October 2022 by Dr Grant was provided to Mr Hannan;
  • in his report, Dr Grant relevantly opined:

ASSESSMENT:

Having reviewed the available collateral material, and interviewing Ms Phillips for one and a half hours, I come to the conclusion that Ms Phillips is currently not suffering from any psychiatric disorder. It is possible that, in the earlier stages of her absence from work, she had a mild Adjustment Disorder with anxiety. However, it is equally possible that, even then, the degree of symptoms might have been seen to be understandable in the circumstances and not reaching a clinical diagnostic threshold.

I noted that Ms Phillips has had no treatment for any psychiatric disorder in the past. Furthermore, she has had no treatment since her absence from work, apart from a two week trial of antidepressants when recommended by the independent medical examination in 2021. That brief trial of an antidepressant only produced side effects and was of no benefit.

In my opinion, Ms Phillips does not require psychiatric treatment.

In view of the absence of any psychiatric disorder, there is no medical reason why Ms Phillips could not return to work. Clearly, there were reasons that led to her absence from the workplace, and she has been away from work for a considerable length of time. Therefore, a return to work would need to be in the context of her being assisted in re-establishing herself in the workplace, catching up with any changes that have occurred in the period that she has been absent. It would be important for her workplace to be supportive, open and direct in its dealings with Ms Phillips. If there are any concerns about her return to the workplace or her performance, then appropriate supportive management should be in place to assist with resolution of any issues.

  • following his receipt of Dr Grant's report, in which Dr Grant concluded by opining that Ms Phillips could immediately return to full duties in her substantive position, Mr Hannan, by letter to Ms Phillips dated 24 October 2024, proposed, pursuant to s 133(1) of the PS Act, to transfer Ms Phillips from her substantive position to the transfer position and gave Ms Phillips an opportunity to provide reasons why she should not be transferred on the ground that the transfer was not reasonable;
  • Ms Phillips responded to Mr Hannan by email sent on 31 October 2022, giving her reasons why she should not be transferred on the ground it was not reasonable; 
  • by letter dated 14 November 2022, Mr Hannan advised Ms Phillips that she had not established reasonable grounds to refuse the transfer and directed her to take up duty in the transfer position on 22 November 2022;
  • on 16 November 2022, Ms Phillips, by appeal to this Commission pursuant to ch 7 of the PS Act, challenged the direction, that she take up duty in the transfer position on 22 November 2022, on the basis that it was not reasonable;
  • on 17 January 2023, Ms Phillips made an application for workers' compensation, pursuant to the Workers' Compensation and Rehabilitation Act 2003, in respect of a psychological injury she claimed happened for reasons that included the transfer;
  • by a decision dated 20 January 2023,[5] the Commission held that the transfer was reasonable;
  • by letter dated 9 February 2023, Mr Hannan directed Ms Phillips to take up duty in the transfer position on 14 February 2023 and, for the reasons discussed in more detail later in these reasons, Ms Phillips did not report for duty as directed on 14 February 2023;
  • by a further letter dated 20 February 2023, Mr Hannan directed that Ms Phillips take up duty in the transfer position on 27 February 2023 and, for the reasons discussed in more detail later in these reasons, Ms Phillips did not report for duty as directed on 27 February 2023; and
  • following Ms Phillips not reporting for duty in the transfer position on 27 February 2023, Mr Hannan, pursuant to s 134(2) of the PS Act, terminated her employment, effective 2 March 2023.

The specific events between 9 February 2023 and 2 March 2023

  1. [22]
    In determining whether Ms Phillips' dismissal was harsh, unjust or unreasonable, there are number of relevant, specific events to consider leading up to her dismissal.
  1. [23]
    The evidence about these events is the correspondence that passed between Ms Phillips and certain employees of the Department between 9 February 2023 and 2 March 2023.
  1. [24]
    By his letter dated 9 February 2023, Mr Hannan directed Ms Phillips to take up duty in the transfer position at 9.00 am on Tuesday, 14 February 2023. Mr Hannan relevantly stated:

Having regard to the length of time which you have been absent from the workplace and that you will be commencing in a new position on 14 February 2023, I have arranged for Ms Rylie Gibb (Senior Human Resources Advisor) to assist you with your return to the workplace.

As such, Ms Rylie Gibb (Senior Human Resources Advisor) will contact you on 10 February 2023 to discuss a return-to-work plan and any specific resources and support you may require. In addition, your manager, Mr Rogers will contact you prior to your commencement to discuss your onboarding plan and answer any questions you may have.

Other matters

Confidentiality

You are directed to not discuss this matter with your work colleagues (except for your management and Human Resources staff) or any person, other than your union, legal representative or a support person. You must also not disclose or discuss the matter in any public forum, including social media, such as Facebook or Twitter.

Failure to observe these directions may render you liable to discipline.

You are further reminded that your obligations under the Code of Conduct for the Queensland Public Service continue to apply throughout and following the conclusion of this process.

Consequences if transfer refused

I note that section 134(2) of the PS Act provides that if the public service officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive's satisfaction, the chief executive may terminate the officer's employment by signed notice given to the officer.

Fitness for duty

With respect to your fitness to commence employment in the position of A08 Program Manager (AT) effective 14 February 2023, I note that on 17 January 2023 you provided me with medical certificate from Dr Margaret Cotter, Cosmetic Physician and General Practitioner, Nundah Doctors Surgery Wavell Heights, stating you are unfit to perform the duties of the A08 Program Manager (AT). (Attachment D).

However, I also note that the independent medical examination report furnished by Dr Donald Grant, Psychiatrist, dated 4 October 2022, stipulated there is no medical reason why you could not return to work (Attachment E) and the QIRC have determined that my decision to transfer you to the position A08 Program Manager (AT) is fair and reasonable.

Having regard to the information available to me, I am satisfied that the medical condition that was preventing you from returning to work has resolved, and I do not consider there to be any barriers preventing you from returning to work. Accordingly, I direct you to commence work in your substantive position of A08 Program Manager (AT) on 14 February 2023.

…

Questions

Should you require further clarification on this matter, please contact Ms Rachelle Storm (A/Principal Human Resource Advisor) on… .[6]

  1. [25]
    Ms Gibb called Ms Phillips twice on 10 February 2023 and left voice mail messages for her to return her calls. Ms Phillips did not return her calls on that day.[7]
  1. [26]
    By email sent to Ms Rachelle Storm, Acting Principal Human Resources Advisor on 13 February 2023, Ms Phillips stated:

Good afternoon Ms Storm

I have just returned from my appointment with Dr Cotter.

I showed her the Direction to Commence work that I received by courier last Thursday afternoon.

She has decided to extend my sick leave until 27 February 2023 (attached Work Capacity Certificate) to allow time for her to review and approve a return to work plan. She said she will require that prior to my returning to the workplace.

Dr Cotter also requested the TMR Rehabilitation, Return to Work and Reasonable Adjustments policies/procedures so that she can ensure she is following procedures correctly. Since I am unable to access TMR systems, I am unable to get them myself. I also don't know the correct titles, but those types of policies are what she has requested. Thanks

Helen[8]

  1. [27]
    The Work Capacity Certificate attached to Ms Phillips' email to Ms Storm, which is one provided for under the Workers' Compensation and Rehabilitation Act 2003, was completed by Ms Phillips' General Practitioner, Dr Margaret Cotter. It was dated 13 February 2023 and provided that Ms Phillips:
  • requires treatment, namely, 'PSYCHOLOGY ASSISTANCE TO RETURN TO WORK' from 13 February 2023 to 27 February 2023, and Ms Phillips was to be reviewed again on 27 February 2023;
  • has no functional capacity for any type of work; and
  • has 'NO FUNCTIONAL CAPACITY FOR WHAT SHE WAS DIRECTED TO DO.'[9]
  1. [28]
    By email sent on Monday 13 February 2023 to Ms Gibb at 1.57 am, Ms Phillips stated:

Good morning Rylie

I received the messages you left on my phone on Friday on Friday afternoon [sic].

Since sending my Work Capacity statement on 17 January 2023 to PPIHR, until a courier knocked at my door on Thursday afternoon with an envelope containing Mr Hannan's direction to me to return to work, I had not been contacted by anyone in the department so receiving the documents were unexpected. I am not sure how to respond to you or the Direction from Mr Hannan because:

  • I have a WorkCover claim currently being assessed (S22SE973313)
  • I am under the care of Dr Cotter. While at the last appointment I had with her she assessed I was not fit for work up to and including 13 February, I have an appointment with her this morning for her to make a further assessment. Since I only received the direction to return to work on Thursday afternoon, I was not able to bring forward my exisiting [sic] appointment so that it was on Friday.

At my appointment with Dr Cotter later this morning, I will provide Dr Cotter with a copy of Mr Hannan's direction to me to return to work. As this direction was not expected, I don't know what information Dr Cotter will require at the appointment, but I suspect she will want to review a return to work plan which includes at least what controls are in place to prevent a similar situation from occurring to that which has led me to currently be on sick leave.

Can you provide the proposed return to work plan to me for my appointment later this morning?[10]

  1. [29]
    Following Ms Phillips not reporting to take up duty in the transfer position on Tuesday, 14 February 2023, Mr Hannan sent Ms Phillips a further letter dated Monday, 20 February 2023 which relevantly stated:

I also refer to your email dated 13 February 2023, at 12:35pm, wherein you state that your treating medical practitioner, Dr Margaret Cotter, Cosmetic Physician and General Practitioner, Nundah Doctors Surgery Wavell Heights, needs to review and approve a return-to-work plan for you for [sic] prior to you returning to the workplace (Attachment B).

To clarify, in my letter to you dated 9 February 2023, when I advised you that Ms Rylie Gibb (Senior Human Resources Advisor) would be in contact with you to discuss a return-to-work plan and any specific resources and support you may require, this was not in relation to medical related support requiring the advice or opinions from Dr Cotter. My intention in advising you that Ms Gibb would be in contact with you to discuss your return to work and any assistance you may need in transitioning back to work, was simply in acknowledgement of the length of time you have been absent from the workplace.

I note you have provided a medical certificate from Dr Cotter, stating you have 'no functional capacity' for the period 13 to 27 February 2023, (Attachment C). I have considered the content of that medical certificate, as well as the independent medical examination report furnished by Dr Donald Grant, Psychiatrist, dated 4 October 2022, which stipulated that there is no medical reason why you could not return to work, and the Queensland Industrial Relations Commission decision, which concluded that my determination that you be transferred to the position A08 Program Manager (AT) was fair and reasonable.

Having regard to the information available to me, I am satisfied that the medical condition that was preventing you from returning to work has resolved and I do not consider there to be any barriers preventing you from returning to work. Noting that, and the absence of any requests from yourself for non-medical related support to assist you in returning to the workplace, I am directing you to commence work in your substantive position of AO8 Program Manager (AT) on Monday, 27 February 2023.[11]

  1. [30]
    Mr Hannan further advised Ms Phillips that she would report to Mr Adam Rogers, Director, Active Transport, and that Mr Rogers would contact her prior to her commencement to discuss her '… onboarding plan and answer any questions you may have.'[12]
  1. [31]
    By email sent to Mr Rogers on Wednesday, 22 February 2023 at 10.07 am, Ms Phillips stated:

Good morning Mr Rogers

I am writing to you because I was given your details yesterday and informed you will be my direct supervisor for the position I was transferred to. I received this information in the attached Direction to Commence Work that was couriered to me yesterday.

I am using my personal email because I was directed not to use TMR systems and this direction has not been removed as shown in the attached screenshots of communication with PPI HR about my return to work. I am also attaching a Work Capacity Certificate which provides that I am still on sick leave on 27 February. I provided this certificate to PPIHR along with the attached email on 13 February 2023. I also have a WorkCover application that is being assessed.

I have an appointment with my doctor on 27 February 2023 which is the date Mr Hannan directed me to commence work. I have been unable to get an appointment earlier than this appointment as my doctor is fully booked.

As shown in both the Work Capacity Certificate and the emails of 13 February, my doctor sought a return to work plan before she would provide clearance for me to commence work. She also requested copies of TMR' s Rehabilitation, Return to Work, Reasonable Adjustment type policies and procedures as she is keen to make sure she is complying with departmental guidelines. These were not provided amongst the documents that were couriered to me yesterday. I am unable to access them because I have no access to TMR systems.

This is obviously a difficult situation as I cannot commence work until I have medical clearance, but I have been directed to commence work by Mr Hannan. I would be grateful if you could assist me in this matter as I don't know how to proceed. I am keen to commence work but my doctor will not provide clearance without a return to work plan being put in place.[13]

  1. [32]
    By email sent to Ms Phillips later that day, Mr Rogers advised that he had forwarded the email to Mr Hannan to respond.[14]
  1. [33]
    By email to Mr Rogers sent on the same day at 3.20 pm, Ms Phillips relevantly stated:

With regards to the role, at the moment, the issues I have been discussing with my doctor are more around how my immediate workplace is organised, for example, what is available to me in terms of assistance to re-establish myself in the workplace for example catching up on changes that have taken place since I last accessed TMR systems, mandatory training, access to TMR systems, how big the team is that I will be working in, how does the team generally operate, is the work allocation structured, what flexible workplace arrangements are in place and available to me etc.

Also given that this is a new position for me and not in an area I have ever worked before or  thought about working before, what supports will be available to me? I am conscious it is a senior position for which I have little previous experience to draw on.

This is the sort of information my doctor has been talking to me about in terms of her assessing my fitness to return to work.

Thanks.[15]

  1. [34]
    By email to Ms Phillips sent on Friday, 24 February 2023, Mr Hannan stated to Ms Phillips:

In response to your emails to Adam Rogers on Wednesday, I refer you back to my letters dated 9 February 2023 and 20 February 2023, which clearly state that I do not require medical advice or opinions from your Doctor in relation to your return to the workplace.

I note that your emails do not include any requests for non-medical related support.

As a new member of the Cycling and Walking team, you will be onboarded over a period of two weeks. This onboarding plan will ensure you are compliant with mandatory security, safety and training requirements, that you establish working relationships with your colleagues and gain an understanding of the Unit's program of work, and that you have the system access and ICT hardware required to perform your role. Your Performance and Development Agreement (PDA) will be established to provide you with clarity in relation to your key duties, accountabilities and performance expectations, and to ascertain the support, resources and/or training which you may require to succeed in the role. Once your PDA is finalised, you may request a Flexible Work Arrangement.[16]

  1. [35]
    By email sent to Mr Hannan on Sunday, 26 February 2023 at 11.48 pm, Ms Phillips stated:

Good morning Mr Hannan

Thank you for your response.

I have an appointment with Dr Cotter, my treating doctor, this morning (Monday 27 February).

I will provide her with the information you have provided at the appointment for her to make a decision.

I will provide her advice once I return home from the appointment.[17]

  1. [36]
    Following Ms Phillips not taking up duty in the transfer position on Monday, 27 February 2023, by email sent to Mr Rogers on that same day at 12.55 pm, Ms Phillips stated:

Good afternoon Mr Rogers

I had an appointment with my doctor, this morning.

She provided me with an updated Work Capacity Certificate (attached) and has prepared a DRAFT Return to Work Plan (attached) - the outstanding issue with the return to work plan being amending my Onboarding Plan (referred to in the email below from Mr Hannan) to reflect the reduced hours she is requiring as part of my return to work plan.

She has provided for my first day at work to be this Friday, 3 March, but wants to have reviewed the amended onboarding plan before I commence. If that could be sent to me, I will provide it to her. I've attached a letter from her which details this.

With regards to commencing on Friday. My building pass and departmental ID have expired. Will security be aware that I will be arriving so that I can sign in as a visitor until I can get a new ID and building pass?

Regards

Helen Phillips[18]

  1. [37]
    Attached to that email was a covering letter from Dr Cotter as well as a draft Return to Work Plan completed by Dr Cotter.
  1. [38]
    The draft Return to Work Plan relevantly provided:
  • Ms Phillips was to commence work on Friday, 3 March 2023, for three hours that day;
  • in the following two weeks, she was to work three hours per day over three days on Mondays, Tuesdays and Fridays;
  • in the fourth week, she was to work three hours on the Monday and Tuesday and then four hours on the Friday; and
  • in the fifth week, she was to work four hours per day on the Monday and Tuesday.[19]
  1. [39]
    The draft Return to Work Plan also provided:
  • Helen Phillips reports to Adam Rogers, Director Active Transport and he is responsible for the day-to-day management of Helen on her return
  • To facilitate Helen's return to work and ensure consistency and prevent any confusion about any workplace matters, Helen is to receive instructions from her direct supervisor Adam Rogers only. Any management communication to Helen is to be directed through him.
  • Any issues that Helen has she is to discuss with her immediate supervisor, Adam Rogers who will be her point of contact for issues resolution.
  • Review date for this plan is 30 March 2023, but Helen may arrange an earlier review date with her treating doctor if she requires
  • A revised Onboarding plan to be provided to Helen prior to this appointment for my consideration at her review of 30 March 2023[20]
  1. [40]
    The draft Return to Work Plan was signed by Dr Cotter and Ms Phillips. It also had a place for Mr Rogers to sign.
  1. [41]
    Also attached to Ms Phillips' email sent on 27 February 2023 was a further Work Capacity Certificate completed by Dr Cotter which was dated 27 February 2023. That Work Capacity Certificate was consistent with the draft Return to Work Plan.
  1. [42]
    On 1 March 2023, a decision brief was provided to Mr Hannan seeking approval of the termination of Ms Phillips' employment for refusing the transfer. On 2 March 2023, Mr Hannan signed the decision brief approving the termination of Ms Phillips' employment, in accordance with s 134(2) of the PS Act, for that reason.[21]
  1. [43]
    In the dismissal letter, Mr Hannan relevantly stated:

Having regard to the circumstances of the matter and the available information, I am satisfied that you have refused my decision to transfer you at level to the AO8 Program Manager (AT) position after failing to establish reasonable grounds for the refusal.[22]

  1. [44]
    Mr Hannan then gave his reasons for the decision which included a series of events commencing with his decision, in September 2022, directing Ms Phillips to submit to the medical examination by Dr Grant, through to the email Ms Phillips sent to Mr Rogers on 27 February 2023 which included, as attachments, the draft Return to Work Plan and the Work Capacity Certificate dated 27 February 2023.
  1. [45]
    Mr Hannan then relevantly stated:

In light of the above and after considering the circumstances of the matter and all the available information, I have decided to terminate your employment, in accordance with section 134(2) of the PS Act, for refusing my transfer of you, after failing to establish reasonable grounds for the refusal.[23]

  1. [46]
    By email to Mr Rogers sent on 2 March 2023 at 9.08 am, Ms Phillips enquired if Mr Rogers had received her email of 27 February 2023 and whether or not he had the onboarding plan so as to send to Dr Cotter.[24] That email was forwarded by Mr Rogers to Mr Hannan.[25] However, Mr Hannan's evidence was that he did not respond to Ms Phillips' email because he had already made the decision to terminate her employment.[26]

Was Ms Phillips' dismissal valid?

  1. [47]
    Ms Phillips submits that her dismissal was invalid.[27]
  1. [48]
    This was said to be because Mr Hannan, in his dismissal letter which Ms Phillips received on 2 March 2023, stated that he was terminating Ms Phillips' employment effective '… immediately from the date of this letter' pursuant to s 134(2) of the PS Act, when the PS Act was repealed on 1 March 2023 by virtue of the operation of the Public Sector Act 2022 from that date.[28] There was no date on the letter dismissing Ms Phillips, but there is no dispute that Mr Hannan made his decision to dismiss Ms Phillips on 2 March 2023.
  1. [49]
    The Department submits that, given the transitional provisions in s 299 of the Public Sector Act 2022, the reference to s 134(2) of the PS Act in the dismissal letter was in error and Mr Hannan had the power to terminate Ms Phillips' employment pursuant to s 162(2) of the Public Sector Act 2022, which is the equivalent provision to s 134(2) of the PS Act.[29]
  1. [50]
    On  1 March 2023, ch 4, pt 4, div 3 of the Public Sector Act 2022 commenced operation and it is in similar terms to ch 5, pt 3 of the PS Act. Sections 161 and 162 are contained in ch 4, pt 4, div 3 of the Public Sector Act 2022 and provide:

161  Chief executive’s power to transfer or redeploy

  1. (1)
    The chief executive of a public service entity (the first entity) may–
  1. (a)
    transfer or redeploy a public service officer of the first entity within the first entity; or
  2. (b)
    with the approval of the chief executive of another entity, transfer or redeploy a public service officer of the other entity to the first entity.
  1. (2)
    However, a redeployment may be made only with the public service officer’s consent.
  2. (3)
    A transfer or redeployment of a public service officer under this section–
  1. (a)
    may involve a change in the location where the officer performs duties; and
  2. (b)
    if the officer is employed on contract–has effect despite anything in the contract.

162  Consequence if public service officer refuses transfer

  1. (1)
    If a public service officer is transferred under section 161, the transfer has effect unless the officer establishes reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive.
  2. (2)
    If the public service officer refuses the transfer after failing to establish reasonable grounds for the refusal to the chief executive’s satisfaction, the chief executive may terminate the officer’s employment by signed notice given to the officer.
  3. (2)
    If the public service officer establishes reasonable grounds to the chief executive’s satisfaction–
  1. (a)
    the transfer is cancelled; and
  2. (b)
    the refusal must not be used to prejudice the officer’s prospects for future promotion or advancement.
  1. [51]
    There is no substance to Ms Phillips' claim that her dismissal was invalid.
  1. [52]
    The general rule is that where a power is exercised, a mistaken source of power works no invalidity in that validity depends simply on whether the relevant power existed.[30]
  1. [53]
    It is true that on 2 March 2023, s 134(2) of the PS Act had been repealed and by s 299(2) of the Public Sector Act 2022, Ms Phillips' transfer continued under the Public Sector Act 2022 on the same terms that applied to her immediately before 1 March 2023. 
  1. [54]
    Mr Hannan's decision to terminate Ms Phillips' employment pursuant to s 134(2) of the PS Act was a power that he did not have. However, on 2  March 2023, Mr Hannan did have power, pursuant to s 162(2) of the Public Sector Act 2022, to terminate Ms Phillips' employment on that date.
  1. [55]
    In the circumstances of the present case, Mr Hannan clearly had power, pursuant to s 162(2) of the Public Sector Act 2022, to terminate Ms Phillips' employment on 2 March 2023.
  1. [56]
    There is no material difference between s 134 of the PS Act and s 162 of the Public Sector Act 2022. Mr Hannan mistakenly acted on the basis that the source of power, to dismiss Ms Phillips, was s 134(2) of the PS Act. However, for the reasons I have given, that does not render Ms Phillips' dismissal invalid.

Was Ms Phillips' dismissal unfair within the meaning of s 316 of the Industrial Relations Act 2016?

  1. [57]
    This requires consideration of the construction of s 162 of the Public Sector Act 2022 and the application of s 320 of the IR Act.

How should s 162 of the Public Sector Act 2022 be construed?

  1. [58]
    In SZTAL v Minister for Immigration and Border Protection,[31] Kiefel CJ, Nettle and Gordon JJ summarised the modern approach to statutory construction:
  1. 14The starting point for the ascertainment of the meaning of a statutory provision is the text of the statute whilst, at the same time, regard is had to its context and purpose. Context should be regarded at this first stage and not at some later stage and it should be regarded in its widest sense. This is not to deny the importance of the natural and ordinary meaning of a word, namely how it is ordinarily understood in discourse, to the process of construction. Considerations of context and purpose simply recognise that, understood in its statutory, historical or other context, some other meaning of a word may be suggested, and so too, if its ordinary meaning is not consistent with the statutory purpose, that meaning must be rejected.[32]
  1. [59]
    The meaning of a provision in a statute must be determined by reference to the language of the instrument viewed as a whole[33] and the legislative instrument must be construed on the prima facie basis that its provisions are intended to give effect to harmonious goals.[34] The purpose of legislation must be derived from what the legislation says, and not from any assumption about the desired or desirable reach or operation of the relevant provisions.[35]
  2. [60]
    Pursuant to s 14A(1) of the Acts Interpretation Act 1954, in the interpretation of a provision of an Act, the interpretation that will best achieve the purpose of the Act (which includes its policy objective) is to be preferred to any other interpretation.
  1. [61]
    The word 'transfer' is defined in sch 2 to the Public Sector Act 2022, namely:

transfer, a public sector employee, means employ the employee at the same classification level, on different duties or at a different location, other than temporarily.

  1. [62]
    The transfer is the continued employment of the public sector employee, at the same classification level, but on different duties or at a different location, and where the requirement to perform different duties, or to perform duties at a different location, is permanent.
  1. [63]
    A public service officer is a public sector employee.[36]
  1. [64]
    It seems clear from the text and purpose of s 161 and s 162 of the Public  Sector  Act 2022, that the discretion of a chief executive, contained in s 162(2) of the Public Sector Act 2022, to terminate a public service officer's employment is enlivened when:
  • the chief executive of the officer's department transfers the officer under s 161 of the Public  Sector  Act 2022;
  • the officer then fails to establish reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive; and
  • subsequently, the officer then still refuses the transfer.
  1. [65]
    In my view, the question of whether a public service officer still refuses the transfer (after failing to establish reasonable grounds for refusing the transfer to the satisfaction of the officer’s chief executive) must be determined on an objective basis.
  1. [66]
    Having regard to the purposes of s 162(1) and s 162(2) of the Public Sector Act 2022, I can see no reason why the word 'refuses', in s 162(2) of the Public Sector Act 2022, should not be given its ordinary meaning, namely '… to express a determination not (to do something).'[37]

Was Ms Phillips' dismissal harsh, unjust or unreasonable having regard to the matters referred to in s 320 of the Industrial Relations Act 2016?

Was Ms Phillips notified of the reason for dismissal?

  1. [67]
    Ms Phillips, by the dismissal letter, was notified of the reasons for her dismissal, namely her refusal of Mr Hannan's decision to transfer her to the transfer position.

Did the dismissal relate to Ms Phillips' conduct, capacity or performance?

  1. [68]
    The dismissal related to Ms Phillips' conduct, namely, her refusal of the transfer after she had failed to establish reasonable grounds for refusing the transfer to the satisfaction of Mr Hannan.

Was Ms Phillips warned about the conduct?

  1. [69]
    By Mr Hannan's letters dated 9 February 2023[38] and 20 February 2023,[39] Ms Phillips was warned that if she refused the transfer, after failing to establish reasonable grounds to refuse the transfer, she may be dismissed pursuant to s 134(2) of the PS Act.

Was Ms Phillips given an opportunity to respond to the claim about the conduct?

  1. [70]
    Ms Phillips submitted that she was not given an opportunity to respond to the view formed by Mr Hannan that she had refused the transfer prior to dismissing her.[40]
  1. [71]
    The Department submitted that:
  • by the process followed by Mr Hannan between 9 February 2023 and 24 February 2023, Ms Phillips was advised of the precise nature of his concerns and was given a full and genuine opportunity to respond; and
  • Ms Phillips had the opportunity to be heard well before the decision was made to terminate her employment and at no time was she prevented from the opportunity to make representations in response to Mr Hannan's letters and emails.[41]
  1. [72]
    The opportunity to respond, as contained in s 320(c)(ii) of the IR Act, concerns whether the employee had been given a fair opportunity to respond, to the particular matters putting the employee's employment at risk, so that the response might result in the employer deciding not to terminate the employee's employment. Such an opportunity is to be applied in a practical common sense way.[42]
  1. [73]
    In my view, Ms Phillips was not given an opportunity to respond to the claim about her conduct prior to her dismissal.
  1. [74]
    On the evidence before me, by Mr Hannan's letter dated 20 February 2023, he directed Ms Phillips to take up duty in the transfer position at 9.00 am on Monday, 27 February 2023. Ms Phillips then, between 22 February 2023 and 27 February 2023, engaged in the email communications with Mr Rogers and Mr Hannan regarding her health issues and medical advice she was receiving about her return to work in the transfer position. There is no dispute that Mr Hannan saw the emails Ms Phillips sent to Mr Rogers over that time.
  1. [75]
    However, there is no email or correspondence from Mr Hannan, or from anyone else in the Department, to Ms Phillips in which Ms Phillips:
  • was advised that Mr Hannan, as from 27 February 2023, had formed the view that Ms Phillips had refused the transfer; and
  • requested her to respond as to whether or not such a view should be formed on the material facts.
  1. [76]
    Similarly there is no email or correspondence from Mr Hannan, or from anyone else in the Department to Ms Phillips in which Ms Phillips:
  • was advised that Mr Hannan had concluded that, as a fact, she had refused the transfer; and, as a consequence
  • asked her to respond as to why her employment should not be terminated upon Mr Hannan coming to that factual conclusion.
  1. [77]
    While it was the case that Ms Phillips had received two directions from Mr Hannan, on 9 February 2023 and on 20 February 2023, to take up duty in the transfer position, and that Ms Phillips had been warned that if she refused the transfer her employment may be terminated, there was no practical opportunity given to Ms Phillips to argue why her employment should not be terminated for the reason that Mr Hannan concluded that she did refuse the transfer. That is to say, Ms Phillips was not, prior to her dismissal, given an opportunity to respond to the claim that she had refused the transfer. Further, or in the alternative, Ms Phillips was not, prior to her dismissal, given an opportunity to respond to any proposal that her employment be terminated for the reason she had refused the transfer.
  1. [78]
    In these circumstances, Ms Phillips has suffered a practical injustice.

Any other matters the Commission considers relevant

  1. [79]
    Ms Phillips makes a number of submissions as to why her dismissal was harsh, unjust or unreasonable.[43] For the reasons I give below, it is not necessary to decide those issues.
  1. [80]
    It is the case that Ms Phillips failed to establish reasonable grounds to refuse the transfer. The central question, therefore, is whether the evidence established that Ms Phillips subsequently refused the transfer, thus triggering the discretion of Mr Hannan to terminate her employment.
  1. [81]
    Ms Phillips submits that by her correspondence to Ms Gibb on 13 February 2023 and to Mr Rogers on 22 and 27 February 2023, the facts do not demonstrate that she refused the transfer or even expressed an intention to refuse the transfer.[44]
  1. [82]
    The Department submits that:
  • when giving evidence to the Commission, Ms Phillips admitted she did not expressly state she was accepting the transfer; and
  • Ms Phillips conduct between 9 February 2023 and 27 February 2023, and the fact that she did not attend work on 27 February 2023, led Mr Hannan to make the reasonable conclusion, based on the evidence before him, that she had refused the transfer after failing to establish reasonable grounds for the refusal to Mr Hannan's satisfaction.[45]
  1. [83]
    The Department further submits that that if Ms Phillips was genuine about returning to work, she would have made all reasonable attempts to call and, or in the alternative, meet with Mr Hannan to discuss her situation and return to work, as opposed to relying on emails with messages that are inconsistent with the advice and instructions provided to her.[46]
  1. [84]
    Indeed, the Department submitted:[47]
  1. Mr Hannan held a reasonable expectation, that if the Applicant genuinely had a medical condition which prevented her return to work, she would be able to proffer meaningful medical evidence contrary to that which had been referenced in the February correspondence. Especially so if she was showing her general practitioner the letters from Mr Hannan, as admitted during cross examination of the Applicant, but the Applicant did not do this. The Applicant continued to rely on upon [sic] vague medical certificates from general practitioners with no meaningful information to explain her conditions and the impact this had on her ability to attend work. Nor did she attempt to meet with Mr Hannan to explain how her medical condition was impacting on her ability to attend work, as admitted by the Applicant in cross examination.

…

  1. The Respondent re-asserts that from 24 October 2022 up to 27 February 2023, the only comprehensive medical information that Mr Hannan was in receipt of was a detailed report from an independent psychiatrist, Dr Donald Grant, dated 4 October 2022, stating the Applicant was fit to return to the workplace.
  1. [85]
    While I can see the attraction of the Department's well-argued submissions,  on the evidence before me, I am not satisfied that Ms Phillips refused the transfer.  That is to say, I am not satisfied that Ms Phillips determined not to comply with the decision to transfer her to the transfer position.
  1. [86]
    The language used by Ms Phillips, following Mr Hannan's letters to her dated 9 February 2023 and 20 February 2023:
  • in her emails sent on 13 February 2023 to Ms Storm and to Ms Gibb;
  • in her emails sent on 22 and 27 February 2023 to Mr Rogers; and 
  • in her email to Mr Hannan sent on 26 February 2023,

are not in terms that indicate she was refusing the transfer.

  1. [87]
    The matters raised by Ms Phillips, in that correspondence, relate:
  • to the medical advice she provided regarding her total incapacity to commence work in the transfer position on 14 February 2023; and
  • to the medical advice she provided, and may provide, regarding her partial incapacity to commence work in the transfer position on 27 February 2023.
  1. [88]
    In her correspondence to Mr Rogers sent on 27 February 2023, Ms Phillips also raised the medical advice she had received, and that she may receive, from Dr Cotter about her safe return to work. Indeed, the draft Return to Work Plan provided by Dr Cotter, as signed by Ms Phillips and Dr Cotter, was provided to the Department on the basis that Ms Phillips would commence working in the transfer position, but on a gradual basis and subject to the other conditions imposed by Dr Cotter in the draft Return to Work Plan.
  1. [89]
    On the evidence before me, Ms Phillips did not attend duty on 27 February 2023 as she was directed. However, there was medical evidence provided by Ms Phillips to the Department that tended to prove that she was not fit to commence full-time work on that day. I have summarised that medical evidence earlier in these reasons. I cannot agree with the Department's submissions that this medical evidence was vague.
  1. [90]
    I understand the Department's submission that the medical evidence provided by Ms Phillips from Dr Cotter was inconsistent with the medical evidence earlier provided by Dr Grant regarding Ms Phillips' capacity to recommence duty. However, the question of whether or not Ms Phillips, in light of contemporaneous medical advice, had the immediate capacity to commence full duty in the transfer position, as directed by Mr Hannan, is a different issue to the matter assessed by Dr Grant in October 2022, namely, whether Ms Phillips had the immediate capacity to return to full duty in her substantive position. It was not reasonable for the Department to ignore the contemporaneous medical advice provided by Ms Phillips' treating medical practitioner. In any event, the provision by Ms Phillips, on 13 and 27 February 2023, of the medical advice from Dr Cotter was not for the purpose of her establishing a reason for her to refuse the transfer.
  1. [91]
    Mr Hannan, prior to his decision to dismiss Ms Phillips, clearly knew of Ms Phillips' email sent on 27 February 2023 to Mr Rogers, and the attachments to that email produced by Dr Cotter, referred to above. That email was forwarded by Mr Rogers to Mr Hannan on that day.[48] It was included in the decision brief given to Mr Hannan on 1 March 2023.[49] Further, in his evidence, Mr Hannan stated that he considered that email and the attachments prior to his decision to dismiss Ms Phillips.[50] Indeed, when asked why, at that point, he still considered that Ms Phillips had refused the transfer, Mr Hannan stated:

Look, there were primarily two requests to return to work, including a clarification email, and both were not complied with. That’s obviously a key point but within that period of time, I wasn’t provided with relevant considerations by the applicant or actions by the applicant that satisfied me or convinced me that the applicant wasn’t refusing the transfer. And I believe just – sorry, the pause.

You’re right?---I believe there was significant time to do that.[51]  

  1. [92]
    Further, I asked Mr Hannan a question about that email. The transcript relevantly records:

HIS HONOUR: Just a couple from me, sorry, Mr Hannan. Just go back to page 540 and the email that Ms Phillips sent to Mr Rogers at 12.55 pm on Monday, the 27th of February. I think you were just asked some questions about that in re-examination, and I think your evidence consistently has been that you considered all information before you made your decision. Just in that last paragraph of that letter, she says – Ms Phillips, rather, says:

With regards to commencing on Friday, my building pass and departmental ID have expired. Will security be aware that I’ll be arriving, so that I can sign in as a visitor until I can get a new ID and building pass?

Is that sort of a statement – from your perspective, is that sort of a statement with – from Ms Phillips, is that consistent or inconsistent with her refusing the transfer?---In – in the context of that specific email, and if it wasn’t with any other context or information or pattern of behaviour, I agree, your Honour, it suggests an intent for work, but the second request was made to attend work on that day. This email has come late in that day, and whilst there’s a – I had – at the time I would have considered - - -

Yes?--- - - - that content. It wasn’t – it also wasn’t inconsistent with a pattern of delay, review, set another date, and it was inconsistent with the direction I had given to commence on the 27th.[52]

  1. [93]
    I accept that it was reasonable for Mr Hannan to consider the history of Ms Phillips' interactions with him, up to his letter to her dated 20 February 2023, in coming to a decision about whether Ms Phillips was refusing the transfer. In my view, up to that point, Mr Hannan had acted very patiently, fairly and reasonably in his dealings with Ms Phillips about the transfer. However, from her emails to Ms Storm, Ms Gibb and Mr Rogers sent in February 2023, Ms Phillips was not expressing her refusal of the transfer. The issues she had were her safe re-commencement of duties.
  2. [94]
    Ms Philips did not attend for duty in the transfer position on 27 February 2023. However, for the reasons given earlier, the question under s 162(2) of the Public Sector Act 2022 was whether she had refused the transfer after failing to establish reasonable grounds for the refusal of the transfer.
  1. [95]
    For the reasons I have given above, I am not persuaded that, on the balance of probabilities, Ms Phillips determined not to take up the transfer. On the evidence before me, Ms Phillips had expressed the direct intention, by email correspondence to, in particular, Mr Rogers, that she would report for duty in the transfer position but on the conditions as advised to her by her General Practitioner, Dr Cotter. For the reasons given earlier, Mr Hannan knew of that email correspondence.
  1. [96]
    There was obfuscation by Ms Phillips.
  1. [97]
    Despite Ms Gibb, on 10 February 2023, leaving two voicemail messages for Ms Phillips to call her back in respect of Ms Phillips' commencement in the transfer position on 14 February  2023, Ms Phillips responded by email and did not return Ms Gibb's calls.[53] All subsequent communication from Ms Phillips to Ms Storm and Mr Rogers was by email despite Mr Hannan providing the telephone numbers for Ms Storm and Mr Rogers  in his correspondence to Ms Phillips dated 9 February 2023 and 20 February 2023. Ms Storm was the Acting Principal Human Resource Advisor nominated by Mr Hannan for Ms Phillips to call if she needed clarification about the matters contained in his correspondence dated 9 February 2023 and 20 February 2023.
  1. [98]
    In Mr Hannan's email to Ms Phillips sent on 24 February 2023, he advised Ms Phillips, amongst other matters, that he did not require medical advice or opinions from her treating medical practitioner in relation to her return to the workplace. Ms Phillips' email response, sent two days later on a Sunday at 11.48 pm, being the day before she was directed to commence duty, was merely to state that she had an appointment with Dr Cotter on 27 February 2023 and that she would provide Dr Cotter's advice when she returned home from that appointment.
  1. [99]
    In my view, the way in which Ms Phillips interacted with the Department was not conducive to any agreed position being reached by them, as was sought by Ms Phillips, about the conditions upon which she would take up duty in the transfer position.
  1. [100]
    However, despite my views about these matters, I find that Ms Phillips did not refuse the transfer and she was not provided with any opportunity, prior to her dismissal, to respond to the conclusion by Mr Hannan that she had in fact refused the transfer and whether she should be dismissed on the basis of that conclusion.
  1. [101]
    For these two reasons, my view is that Ms Phillips' dismissal was unfair within the meaning of s 316 of the IR Act because it was unjust.

The next steps

  1. [102]
    Section 319 of the IR Act provides:

319  Arbitration when conciliation unsuccessful

If the commission considers all reasonable attempts to settle an application by conciliation have been made, but have been unsuccessful, the commission may hear and decide the application by–

  1. (a)
    making an order under section 321 or 322; or
  2. (b)
    dismissing the application.
  1. [103]
    Section 321 provides:

321  Remedies–reinstatement or re-employment

  1. (1)
    This section applies if the commission is satisfied an employee was unfairly dismissed.
  2. (2)
    The commission may order the employer to reinstate the employee to the employee’s former position on conditions at least as favourable as the conditions on which the employee was employed immediately before dismissal.
  3. (3)
    If the commission considers reinstatement would be impracticable, the commission may order the employer to re-employ the employee in another position that the employer has available and that the commission considers suitable.
  4. (4)
    The commission may also– 
  1. (a)
    make an order it considers necessary to maintain the continuity of the employee’s employment or service; and
  2. (b)
    order the employee to repay any amount paid to the employee by, or for, the employer on the dismissal; and
  3. (c)
    order the employer to pay the employee the remuneration lost, or likely to have been lost, by the employee because of the dismissal, after taking into account any employment benefits or wages received by the employee since the dismissal.
  1. (5)
    This section does not limit the commission’s power to make an interim or interlocutory order.
  1. [104]
    Section 322 of the IR Act provides:

322  Remedies–compensation

  1. (1)
    If, and only if, the commission considers reinstatement or re-employment would be impracticable, the commission may order the employer to pay the employee an amount of compensation decided by the commission.
  2. (2)
    The commission must not award an amount of compensation that is more than–
  1. (a)
    if the employee was employed under an industrial instrument–the wages the employer would have been liable to pay the employee for the 6 months immediately after the dismissal, paid at the rate the employee received immediately before the dismissal; or
  2. (b)
    if the employee was not employed under an industrial instrument–the lesser of the wages under paragraph (a) and an amount equal to half the amount of the high income threshold under the Fair Work Act 2009 (Cwlth), section 333.
  1. (3)
    The commission must take into account any amount paid to the employee by the employer on the dismissal.
  2. (4)
    This section does not limit the commission’s power to make an interim or interlocutory order.
  1. [105]
    Neither party, in their evidence, dealt with the issue of what remedy, if any, I may order if I reached the conclusion that her dismissal was unfair.
  1. [106]
    The issue of remedy is a separate matter for me to decide in light of all relevant evidence and argument.
  1. [107]
    Both parties must be given the opportunity to be heard about that matter.

Conclusion

  1. [108]
    For the reasons I have given, Ms Phillips' dismissal was unfair.
  1. [109]
    I will make Directions Orders for the hearing and determination of the question of remedy.

Directions Orders

  1. [110]
    I make the following Directions Orders:
  1. 1.That the Applicant files in the Industrial Registry, and serves on the Respondent, any affidavit material in respect of the remedy sought by the Applicant, by 4.00 pm on Friday, 14 June 2024.
  2. 2.That the Applicant files in the Industrial Registry, and serves on the Respondent, an outline of argument (no more than 5 pages, type-written, line and a half spaced, 12-point font size and with numbered paragraphs and pages) in respect of the remedy sought by the Applicant, by 4.00 pm on Friday, 14 June 2024.
  3. 3.That the Respondent files in the Industrial Registry, and serves on the Applicant, its affidavit material in respect of the remedy sought by the Applicant, by 4.00 pm on Friday, 12 July 2024.
  4. 4.That the Respondent files in the Industrial Registry, and serves on the Applicant, an outline of argument (no more than 5 pages, type-written, line and a half spaced, 12-point font size and with numbered paragraphs and pages) in respect of the remedy sought by the Applicant, by 4.00 pm on Friday, 12 July 2024.
  5. 5.That the Applicant files in the Industrial Registry, and serves on the Respondent, any affidavit material in reply, by 4.00 pm on Friday, 26 July 2024.
  6. 6.That the Applicant files in the Industrial Registry, and serves on the Respondent, an outline of argument in reply (no more than 2 pages, type-written, line and a half spaced, 12-point font size and with numbered paragraphs and pages) by 4.00 pm on Friday, 26 July 2024.
  7. 7.That the matter be mentioned before Deputy President Merrell at 1.00 pm on Friday,  2 August 2024 at the Queensland Industrial Relations Commission, Central Plaza 2, 66 Eagle Street, (Cnr Elizabeth and Creek Streets), Brisbane.

Footnotes

[1] Byrne v Australian Airlines Limited [1995] HCA 24; (1995) 185 CLR 410, 465 (McHugh and Gummow JJ).

[2] Ibid.

[3] Gold Coast District Health Service v Walker [2001] QIC 63; (2001) 168 QGIG 258, 259 (President Hall).

[4] Ibid 259.

[5] Phillips v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 019.

[6] Exhibit 3, exhibit JH-29 pages 2 and 3, pages 478-479 of the Court Document Book prepared by the State of Queensland ('the Court Book'). Contact details deleted.

[7] Exhibit 5, paras. 6-9, page 590 of the Court Book.

[8] Exhibit 3, exhibit JH-32, page 488 of the Court Book.

[9] Exhibit 3, exhibit JH-33, page 490 of the Court Book.

[10] Exhibit 5, exhibit RG-4, page 601 of the Court Book.

[11] Exhibit 3, exhibit JH-35, page 1, page 495 of the Court Book.

[12] Exhibit 3, exhibit JH-35, page 2, page 496 of the Court Book.

[13] Exhibit 4, exhibit AR-8, page 565 of the Court Book.

[14] Exhibit 4, para. 13, page 544 of the Court Book.

[15] Exhibit 4, exhibit AR-10, page 569 of the Court Book.

[16] Exhibit 3, exhibit JH-40, page 510 of the Court Book.

[17] Exhibit 3, exhibit JH-41, page 512 of the Court Book.

[18] Exhibit 3, exhibit JH-42, page 515 of the Court Book.

[19] Exhibit 3, exhibit JH-42, page 517 of the Court Book.

[20] Exhibit 3, exhibit JH-42, page 518 of the Court Book.

[21] Exhibit 3, exhibit JH-43, pages 524-532 of the Court Book.

[22] Exhibit 3, exhibit JH-44, page 1, page 534 of the Court Book.

[23] Exhibit 3, exhibit JH-44, page 4, page 537 of the Court Book.

[24] Exhibit 4, exhibit AR-15, page 587 of the Court Book.

[25] Exhibit 4, para. 18, page 544 of the Court Book.

[26] Exhibit 3, para. 55, page 214 of the Court Book.

[27] The written submissions of Ms Helen Phillips filed on 5 March 2024 ('Ms Phillips' submissions'), paras. 42-44.

[28] Public Sector Act 2022, s 289.

[29] The written submissions of the State of Queensland filed on 26 March 2024 ('the State's submissions'), paras. 18-25.

[30] Johns v Australian Securities Commission [1993] HCA 56; (1993) 178 CLR 408, 426 (Brennan J) and 469 (McHugh J) and John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338; (2010) 202 IR 82, [95] (Spigelman CJ, Beazley JA at [123] and Giles JA at [124] agreeing).

[31] [2017] HCA 34; (2017) 262 CLR 362.

[32] Citations omitted.

[33] Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355, [69] (McHugh, Gummow, Kirby and Hayne JJ).

[34] Ibid [70].

[35] Certain Lloyd's Underwriters v Cross [2012] HCA 56; (2012) 248 CLR 378, [26] (French CJ and Hayne J).

[36] Public Sector Act 2022, s 12(1), s 13(1)(d) and s 14.

[37] Macquarie Dictionary (7th ed 2017) 'refuse' (def 3).

[38] Exhibit 3, exhibit JH-29, page 2, page 479 of the Court Book.

[39] Exhibit 3, exhibit JH-35, page 2, page 496 of the Court Book.

[40] The written submissions in reply of Ms Helen Phillips filed on 2 April 2024, paras. 12-14.

[41] The State's submissions, para. 87.

[42] Blows v Townsville City Council [2016] QIRC 066, [92]-[93] (Deputy President O'Connor).

[43] Ms Phillips' submissions, paras. 45 -54, 55-60, 61-64, 65-69, 87-90 and 91-95.

[44] Ms Phillips' submissions, paras. 72-73 and 83.

[45] The State's submissions, paras. 36-37.

[46] The State's submissions, para. 54.

[47] Footnotes omitted.

[48] Exhibit 4, para. 16, page 544 of the Court Book.

[49] Exhibit 3, exhibit JH-43, pages 529 and 532 of the Court Book.

[50] T 1-100, ll 20-24.

[51] T 1-100, ll 25-33.

[52] T 1-101, ll 1-22.

[53] Exhibit 2, paras. 11-12, page 17 of the Court Book.

Close

Editorial Notes

  • Published Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • Shortened Case Name:

    Phillips v State of Queensland (Department of Transport and Main Roads)

  • MNC:

    [2024] QIRC 118

  • Court:

    QIRC

  • Judge(s):

    Merrell DP

  • Date:

    17 May 2024

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
Blows v Townsville City Council [2016] QIRC 66
2 citations
Jump To
Cite 1 - [2016] QIRC 66
Cite 2 - [2016] QIRC 66
Byrne v Australian Airlines Ltd (1995) 185 CLR 410
2 citations
Jump To
Cite 1 - (1995) 185 CLR 410
Cite 2 - (1995) 185 CLR 410
Byrne v Australian Airlines Ltd [1995] HCA 24
2 citations
Jump To
Cite 1 - [1995] HCA 24
Cite 2 - [1995] HCA 24
Certain Lloyd's Underwriters Subscribing to Contract No IH00AAQS v Cross [2012] HCA 56
2 citations
Jump To
Cite 1 - [2012] HCA 56
Cite 2 - [2012] HCA 56
Certain Lloyd's Underwriters v Cross (2012) 248 CLR 378
2 citations
Jump To
Cite 1 - (2012) 248 CLR 378
Cite 2 - (2012) 248 CLR 378
Gold Coast District Health Service v Walker [2001] QIC 63
2 citations
Jump To
Cite 1 - [2001] QIC 63
Cite 2 - [2001] QIC 63
Gold Coast Health District v Walker (2001) 168 QGIG 258
2 citations
Jump To
Cite 1 - (2001) 168 QGIG 258
Cite 2 - (2001) 168 QGIG 258
John Holland Pty Ltd v Industrial Court of New South Wales [2010] NSWCA 338
2 citations
Jump To
Cite 1 - [2010] NSWCA 338
Cite 2 - [2010] NSWCA 338
John Holland Pty Ltd v Industrial Court of New South Wales (2010) 202 IR 82
2 citations
Jump To
Cite 1 - (2010) 202 IR 82
Cite 2 - (2010) 202 IR 82
Johns v Australian Securities Commission (1993) 178 CLR 408
2 citations
Jump To
Cite 1 - (1993) 178 CLR 408
Cite 2 - (1993) 178 CLR 408
Johns v Australian Securities Commission [1993] HCA 56
2 citations
Jump To
Cite 1 - [1993] HCA 56
Cite 2 - [1993] HCA 56
Phillips v State of Queensland (Department of Transport and Main Roads) [2023] QIRC 19
2 citations
Jump To
Cite 1 - [2023] QIRC 19
Cite 2 - [2023] QIRC 19
Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28
2 citations
Jump To
Cite 1 - [1998] HCA 28
Cite 2 - [1998] HCA 28
Project Blue Sky v Australian Broadcasting Authority (1998) 194 C.L.R 355
2 citations
Jump To
Cite 1 - (1998) 194 C.L.R 355
Cite 2 - (1998) 194 C.L.R 355
SZTAL v Minister for Immigration and Border Protection (2017) 262 CLR 362
2 citations
Jump To
Cite 1 - (2017) 262 CLR 362
Cite 2 - (2017) 262 CLR 362
Sztal v Minister for Immigration and Border Protection (2017) HCA 34
2 citations
Jump To
Cite 1 - (2017) HCA 34
Cite 2 - (2017) HCA 34

Cases Citing

Case NameFull CitationFrequency
Phillips v State of Queensland (Department of Transport and Main Roads) (No. 2) [2025] QIRC 282 citations
1

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