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  4. Ellis v State of Queensland (Queensland Health) - [2024] QIRC 119

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Ellis v State of Queensland (Queensland Health)[2024] QIRC 119

Ellis v State of Queensland (Queensland Health)[2024] QIRC 119

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Ellis v State of Queensland (Queensland Health) [2024] QIRC 119

PARTIES:

Ellis, Christopher Malcolm

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/154

PROCEEDING:

Public Sector Appeal – Fair treatment appeal

DELIVERED ON:

17 May 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where individual employee grievance lodged in accordance with Directive 11/20: Individual employee grievances – where appellant was dissatisfied with the local action decision and lodged an internal review – where appellant dissatisfied with the internal review decision – whether the internal review decision was fair and reasonable – internal review decision fair and reasonable

LEGISLATION AND INSTRUMENTS:

Acts Interpretation Act 1954 (Qld) s 27B

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

Public Sector Act 2022 (Qld) s 131, s 132, s 133, s 134

Directive 11/20: Individual employee grievancescl 5, cl 9

CASES:

Berry v Queensland Museum Network [2022] QIRC 248

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

Reasons for Decision

Introduction

  1. [1]
    Mr Christopher Ellis (the Appellant) is employed as an HP4 Cardiac Scientist with the Gold Coast Hospital and Health Service (the Respondent; GCHHS).
  2. [2]
    On 23 May 2023, Ms Toni Courtis, Nursing Director – Specialist Medical Services, GCHHS, wrote to the Appellant advising him of the outcome of an Individual Employee Grievance (IEG) he submitted in relation to the conduct of two employees (the IEG Decision).[1]
  3. [3]
    In the IEG Decision, Ms Courtis considered complaints raised by the Appellant in relation to the alleged conduct of Mr Vivek Kulkarni, Senior Cardiac Scientist, Cardiac Investigations Unit – Clinical Measurements, GCHHS, between unspecified dates around 2017/2018, October 2019 and March 2022. Ms Courtis determined that (emphasis added):[2]

In relation to the allegations against Mr Kulkarni, I have reviewed all information including the responses received from Mr Kulkarni, file notes, myHR leave forms, eRosters, witness statements, and email correspondence from that period. I am of the view that while not all allegations could be verified, Mr Kulkarni has displayed some inappropriate workplace behaviours in his interactions with you. I take this opportunity to assure you that any inappropriate behaviour within the workplace is unacceptable and I have taken reasonable steps to ensure this behaviour is not repeated.

  1. [4]
    The Appellant requested an internal review of the IEG Decision. The Appellant offered that the following actions be considered in resolving the grievance, including:[3]
  • Provide clear reasons, which are supported by specific sections of policy or law, explaining why each of your attempted submissions and requests have been denied or excluded.
  • Provide more transparency in regard to which areas of your complaint have been accepted and what areas require further verification.
  • Clearly advise you of all the relevant information you are entitled to receive (such as employee's right to escalate, which should have been discussed upon finalisation of the complaint). Provisions of copies of relevant policy documents (such as Individual Employee Grievances E12) rather than guideline documents that simply refer to the policy documents.
  1. [5]
    On 7 July 2023, after reviewing the matters raised within the Appellant's grievance, Ms Jenny Paton, A/General Manager, Division of Medicine, GCHHS, determined she considered the complaint was "managed in accordance with the relevant GCHHS Procedures and Policies"(the Internal Review Decision).[4]
  2. [6]
    On 7 August 2023, the Appellant filed an Appeal Notice in relation to the Internal Review Decision.

Jurisdiction

Timeframe for appeal

  1. [7]
    Section 564(3) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given. That is the relevant inquiry with respect to timeframes.
  2. [8]
    The Respondent submitted that the Appellant was the "complainant in a grievance process" and that the "outcomes of that grievance process was communicated to them on 23 May 2023". Further, they contend that "this element of the appeal should be dismissed as out of time" as this Appeal was filed on 7 August 2023 which is outside the relevant 21-day timeframe.[5]
  3. [9]
    The Appellant has clearly stipulated in the Form 89 – Appeal notice (the Appeal Notice) and their written submissions, that they are appealing the Internal Review Decision dated 7 July 2023.
  4. [10]
    The Internal Review Decision was given to the Appellant in a meeting on 21 July 2023 and the appeal was filed on 7 August 2023.[6] Therefore, I am satisfied the Appellant filed the appeal within the required timeframe.

The decision subject of this appeal

  1. [11]
    Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. A "fair treatment decision", i.e., a decision which the Appellant contends is unfair and unreasonable is appealable under s 131(1)(d) of the PS Act. The Appellant indicated in the Appeal Notice that he is "appealing a fair treatment decision".
  2. [12]
    Section 133(d) of the PS Act prescribes that a public sector employee aggrieved by a fair treatment decision may appeal. The Appellant meets that requirement.
  3. [13]
    Section 134 of the PS Act allows for the appeal to be heard and decided by the Commission. 
  4. [14]
    The Respondent submitted that the appeal falls within the scope of s 132(4)(e) of the PS Act which states:
  1. A person can not appeal against a fair treatment decision—

…

(e) relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of the grievance; or

…

  1. [15]
    According to the Respondent, the Appellant is not requesting a review of the "outcome of a grievance" and is rather seeking a change in the way the outcome of the grievance was communicated to him.[7]
  2. [16]
    The Appellant submitted that the Commission does have jurisdiction to hear the matter. Directive 11/20: Individual employee grievances (the Directive) at cl 9.3 provides a mechanism for external review if an employee is dissatisfied with a decision made following an internal review: 
  1. If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review. Depending on the issues raised in the grievance, the avenues for external review may include:
  1. a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act
  1. [17]
    The Appellant further submitted that he is dissatisfied with the decision made following the internal review and he is an employee who may seek an external review in the Commission.[8]
  2. [18]
    I do not agree with the Respondent's position that the Decision is unable to be appealed. Section 132(4)(e) of the PS Act provides that an appeal cannot be made against a fair treatment decision "relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of the grievance".
  3. [19]
    The Internal Review Decision is the outcome of the grievance the Appellant submitted against Mr Kulkarni. Further, there are mechanisms for review of the Internal Review Decision under cl 9.3 of the Directive. Specifically, cl 9.3(a)(i) of the Directive prescribes that the Appellant may make a public service appeal.
  4. [20]
    I am satisfied that the Internal Review Decision is able to be appealed.

What decisions can the Commission make?

  1. [21]
    Section 562C of the IR Act prescribes that the Commission may determine to either:
  • confirm the decision appealed against;
  • 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; or
  • set the decision aside and substitute another decision.

Relevant Legislation

  1. [22]
    Section 131 of the PS Act states:

131 Decisions against which appeals may be made

(1) An appeal may be made against the following decisions—

…

(d) a fair treatment decision;

…

  1. [23]
    Section 133 of the PS Act provides:

133 Who may appeal

The following persons may appeal against the following decisions—

…

(d) for a fair treatment decision—a public sector employee aggrieved by the decision;

…

  1. [24]
    Clause 5 of the Directive provides:

5.  Matters that can be the subject of an individual employee grievance

5.1  An individual employee grievance under this directive is a grievance submitted by a current public service employee who has an honest belief, based on reasonable grounds, that:

  1. (a)
    an administrative decision, which they are aggrieved by, is unfair and unreasonable
  2. (b)
    the conduct or behaviour of an employee, agent or contractor is unfair and unreasonable
  3. (c)
    the conduct or behaviour of an employee, agent or contractor constitutes bullying in the workplace, sexual harassment, racial vilification, religious vilification or vilification on the grounds of gender identity or sexuality
  4. (d)
    the conduct or behaviour of an employee is a breach of the Code of Conduct
  5. (e)
    an act or decision is not compatible with human rights or a decision failed to give proper consideration to a relevant human right under the HR Act.
  1. [25]
    Clause 9.1 of the Directive provides for stage 1 local action:

9.1  Stage 1–local action

…

  1. After a decision has been made about an individual employee grievance– including a decision to take no action under clause 9.1(c)–the agency must provide a written decision to the employee who submitted the grievance. The decision must:
  1. (i)
    outline the action taken to manage the individual employee grievance and the outcome of this action
  2. (ii)
    provide the reasons for the decision, or the decision to take no action
  3. (iii)
    outline any action that the agency proposes to take, or will take, as a result of the decision; and
  4. (iv)
    inform the employee of their internal review rights outlined in Stage 2– internal review, including any relevant timeframes.
  1. [26]
    Clause 9.2 of the Directive provides for stage 2 internal review of a local action decision:

9.2  Stage 2–internal review

  1. If an employee is dissatisfied with a decision made through local action, the employee may make a written request to the agency chief executive for an internal review.

…

  1. An internal review is to be completed by the chief executive or their delegate. The chief executive or delegate is to determine whether the decision made through local action was fair and reasonable in the circumstances.
  1. If the chief executive or delegate is satisfied that:
  1. the reasons for seeking an internal review are insufficient
  1. the request for internal review is frivolous or vexatious, or
  1. the employee has unreasonably refused to participate in local action to resolve the individual employee grievance

the agency may decide to take no further action in relation to the request for internal review. The agency must give written reasons for its decision in accordance with clause 9.2(h).

  1. A decision about internal review of a decision made through local action must be made as soon as possible and within 14 days of receipt of a written request from an employee for internal review. The 14 day period commences from the date the agency receives the request for internal review, in accordance with clause 9.2(b). This applies unless:
  1. the timeframe has been extended by mutual agreement between the parties. A party to the individual employee grievance is not to unreasonably withhold their agreement or
  1. where the chief executive or delegate can demonstrate that reasonable attempts have been made to progress the individual employee grievance.

…

  1. At the completion of internal review, including a decision to take no further action under clause 9.2(e), the chief executive or delegate must provide a written decision to the employee. This decision must:
  1. outline the action taken to review the decision made through local action
  1. outline the reasons for the decision, or the decision to take no further action
  1. outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
  1. outline any avenues of external review that may be available to the employee, including any relevant timeframes.
  1. [27]
    Clause 9.3 of the Directive provides for stage 3 external review:

9.3  Stage 3–external review

  1. If the employee who made the original individual employee grievance is dissatisfied with a decision made following internal review, the employee may seek an external review.

Depending on the issues raised in the grievance, the avenues for external review may include:

  1. a public service appeal against a decision under a directive, a decision of the CCE under section 88IA to give a direction about the handling of a work performance matter, or a fair treatment decision, as provided for under sections 194(1)(a), 194(1)(ba) or 194(1)(eb) of the PS Act

…

Submissions

  1. [28]
    On 10 August 2023, I issued a Directions Order requiring submissions from the parties.
  2. [29]
    Interestingly, the Respondent filed their submissions on 15 August 2023 before the Appellant, despite being directed to file their submissions "in response to the Appellant's submissions".
  3. [30]
    The Appellant filed their submissions on 17 August 2023 in accordance with the Directions Order.
  4. [31]
    Neither party sought to make further submissions.
  5. [32]
    I have carefully considered all submissions but have determined not to approach the writing of this decision by summarising the entirety of those arguments. My focus is on determining whether the Decision appealed against is fair and reasonable so I will instead refer only to the parties' key positions in my consideration of this appeal. 

Consideration

Appeal principles

  1. [33]
    Section 562B(2)-(3) of the IR Act provides that the appeal is decided by reviewing the decision appealed against "to decide whether the decision appealed against was fair and reasonable".
  2. [34]
    The appeal is not conducted by way of re-hearing, but rather involves a review of the decision arrived at and the associated decision-making process.[9] 
  3. [35]
    Findings made by the decision-maker, which are reasonably open to them, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the Commission may allow other evidence to be taken into account.
  4. [36]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[10]

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.

Was the Internal Review Decision unreasonable?

  1. [37]
    The Appellant's grounds of appeal relate to the inadequacy of the reasons provided in the Internal Review Decision, which largely confirms the IEG Decision. The Appellant submits that the Internal Review Decision does not outline sufficient reasons in compliance with cl 9.2(h) of the Directive.[11] Further, he submits that the IEG Decision did not outline reasons in compliance with cl 9.1(f) of the Directive.[12]
  2. [38]
    The Appellant noted that as the Respondent substantiated some of his allegations, he does not seek to "disturb any decision to substantiate those allegations".[13] The purpose of his appeal is to challenge the Respondent on their position "that they are unable to release information about which allegations have been substantiated and which have not (and the reasons for this)."[14]
  3. [39]
    The Appellant contends that the Internal Review Decision and IEG Decision fail to set out the findings of material questions of fact or refer to the evidence or other material on which those findings were based pursuant to s 27B of the Acts Interpretation Act 1954 (Qld) which states:

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also—

  1. set out the findings on material questions of fact; and
  1. refer to the evidence or other material on which those findings were based.
  1. [40]
    As a result, the Appellant is of the view that he is at a significant disadvantage when generating more specific reasons for dissatisfaction.
  2. [41]
    While I am not aided by any submissions from the Respondent in response to the Appellant's submissions, I have carefully reviewed all filed materials and determined that the Internal Review Decision was fair and reasonable. I find that Ms Paton did outline the findings on material questions of fact and refer to the evidence in which those findings were based, in accordance with statutory provisions and the Directive.
  3. [42]
    An internal review requires the decision maker to consider the local action decision. The Internal Review Decision by Ms Paton was a 'review' and the only determination required was whether the IEG Decision by Ms Courtis was fair and reasonable. If there are no aspects of the local action decision that are considered unfair or unreasonable, it is open to the decision maker to confirm the decision under review.
  4. [43]
    Clause 9.2(h) of the Directive provides that the Internal Review Decision must do the following:
  1. outline the action taken to review the decision made through local action
  2. outline the reasons for the decision, or the decision to take no further action
  3. outline any action that the chief executive or delegate proposes to take, or will take, as a result of the internal review, and
  4. outline any avenues of external review that may be available to the employee, including any relevant timeframes.
  1. [44]
    I have reviewed the Internal Review Decision of Ms Paton and I note the following sections of her correspondence that address the factors required by cl 9.2(h) of the Directive:
  1. In relation to the action taken to review the decision made through local action, Ms Paton outlined:

I have reviewed the information you have provided, as well as the correspondence sent to you from Ms Toni Courtis, Nursing Director Specialist Medical Services.

…

It is noted that Ms Courtis outlined she had reviewed all information including the responses received from the respondent, file notes, myHR leave forms, eRosters, witness statements, and email correspondence from that period.

…

I have carefully considered and acknowledge all information available to me including the information you provided to me as part of your grievance as well as other matters, however all the information may not be specifically mentioned in my decision.

  1. Ms Paton outlined the reasons for the decision:
  • Appropriate and reasonable enquiries were made into the concerns raised in accordance with the resolution of complaints at the local level to ensure resolution for the parties moving forward.
  • All your submissions were considered as a part of the enquiries made into your complaint. In addition, any relevant information was explored from appropriate sources where further information was required in relation to the concerns raised.
  • Information sourced throughout the enquires stage was considered sufficient to provide outcomes to both parties and make operational decisions in relation to a safe working environment for both you and Mr Vivek (sic) going forward.
  • These processes are confidential, our confidentiality obligations extend to you as the person making the complaint, and also to those who are the subject of the complaint. Therefore, whilst I am unable to share with you the specific details of the actions taken with the respondent in relation to your complaint, I am comfortable the actions taken, were reasonable and appropriate, having considered all relevant information available as outlined above.
  • I consider your complaint was managed in accordance with the relevant GCHHS Procedures and Polices.
  1. Ms Paton outlined the action that the chief executive or delegate will take, as a result of the internal review:

Ms Courtis provided her assurance she considers any inappropriate behaviour within the workplace is unacceptable and she has taken reasonable steps to ensure this behaviour is not repeated. A further mitigation strategy to maintain a safe working environment in which both you and Mr Kulkarni are able to continue working within the Cardiac Investigations Unit – Clinical Measurements Ms Courtis confirmed to you was to ensure rostering of you and Mr Kulkarni at opposite GCHHS campuses, being Robina Hospital and Gold Coast University Hospital campus. This alternate rotation of work location has ensured you are not coming into daily contact with Mr Kulkarni, to establish a clear separation of persons to maintain psychological safety in line with Managing the risk of psychosocial hazards at work Code of Practice 2022.

…

I note your dissatisfaction that you were not provided with the actual documents but provided with an electronic link to the GCHHS Guideline for the resolution of complaints document relied upon to manage your complaint. While the electronic document provided reference to all relevant Directives/Policies/Procedures, I will take your feedback on board to ensure as far as possible hard copy documents (or relevant parts of) are enclosed in future correspondence.

  1. [45]
    The decision made by Ms Paton demonstrated the action taken to review the decision by Ms Courtis. Ms Paton considered the requirements of the Directive and compared those requirements to the contents of Ms Courtis' decision, finding that each of the determinations in Ms Courtis' decision were fair and reasonable.
  2. [46]
    The only requirement that the Internal Review Decision failed to meet is cl 9.2(h)(iv) of the Directive, whereby Ms Paton did not outline any avenues of external review that may be available to the employee that are contained in cl 9.3 of the Directive.
  3. [47]
    The failure to notify the Appellant of any avenues of external review does not make the Internal Review Decision inherently unfair or unreasonable. The Appellant has not suffered any detriment to his employment as a result of the Internal Review Decision and was aware on his own accord of the external review avenues, hence filing this appeal in the Commission. While the Respondent should take note that its failure to include notification of external review avenues was not in compliance with the Directive, it does not make the Internal Review Decision subject of this appeal unfair or unreasonable.
  4. [48]
    Any reasonable assessment of the Internal Review Decision would determine that the reasons for the decision were made clear to the Appellant. An internal review decision is simply a review of the local action decision. The decision maker is not required to include information regarding other management actions. To provide the Appellant with information relating to the actions taken against another employee would not be appropriate, in my view.
  5. [49]
    In Berry v Queensland Museum Network,[15] Industrial Commissioner Power outlined:

… It is sometimes the case that an employee seeking a review would like greater detail to be provided in such decisions, particularly in matters in which they disagree with the outcome. Whilst more fulsome explanations may be sought, the requirement is only that the reasons for the decision can be understood. In the circumstances of this matter, I am satisfied that sufficient detail was included in the decision to explain why the decision was made.

  1. [50]
    The Internal Review decision inherently meets the requirements outlined in the Directive and is easily understandable. While the level of detail sought by the Appellant has not been included, it does not make the Internal Review Decision unfair or unreasonable. It may have been helpful to the Appellant for the Respondent to outline which allegations had been substantiated and which had not, however that level of detail is not required to be disclosed under the Directive. If anything, it appears that the Department has sensibly reviewed the Appellant's grievance and implemented a strategy for both parties to manage the working relationship, now being based at opposite GCHHS campuses.

Conclusion

  1. [51]
    For the reasons outlined above, I consider that the Internal Review Decision was fair and reasonable.

Order

  1. [52]
    I make the following order:

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

Footnotes

[1] Appellant's submissions filed 17 August 2023, [4].

[2] Appeal notice filed 7 August 2023, Attachment 2, 1.

[3] Ibid 2. 

[4] Ibid Attachment 1, 2.

[5] Respondent's submissions filed 15 August 2023, [4].

[6] Appellant's submissions filed 17 August 2023, [7].

[7] Respondent's submissions filed 15 August 2023, [6].

[8] Appellant's submissions filed 17 August 2023, [12].

[9] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5.

[10] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[11] Appellant's submissions filed 17 August 2023, [13].

[12] Ibid.

[13] Ibid [21].

[14] Ibid. 

[15] [2022] QIRC 248.

Close

Editorial Notes

  • Published Case Name:

    Ellis v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Ellis v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 119

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • 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
Berry v Queensland Museum Network [2022] QIRC 248
2 citations
Jump To
Cite 1 - [2022] QIRC 248
Cite 2 - [2022] QIRC 248
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Goodall v State of Queensland [2018] QSC 319
1 citation
Jump To
Cite 1 - [2018] QSC 319
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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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