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  4. Lee v State of Queensland (Queensland Health) - [2024] QIRC 130

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Lee v State of Queensland (Queensland Health)[2024] QIRC 130

Lee v State of Queensland (Queensland Health)[2024] QIRC 130

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Lee v State of Queensland (Queensland Health) [2024] QIRC 130

PARTIES:

Lee, Debra

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2023/121

PROCEEDING:

Public Sector Appeal

DELIVERED ON:

24 May 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 132 of the Public Sector Act 2022 (Qld) to impose disciplinary action – where proposed disciplinary action is a demotion and transfer – where the Appellant opposes the disciplinary action – where the disciplinary action is fair and reasonable

LEGISLATION AND OTHER INSTRUMENTS:

Code of Conduct for Nurses

Code of Conduct for the Queensland Public Service

Discipline Directive 05/23

Industrial Relations Act 2016, s 562

Public Sector Act 2022 (Qld), s 91

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Briginshaw v Briginshaw [1938] HCA 34

Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 016

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

Goodall v State of Queensland [2018] QSC 319

Mathieu v Higgins [2008] QSC 209

Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

Oss v State of Queensland (Queensland Health) [2022] QIRC 155

Thinh Nguyen and Anor v Vietnamese Community in Australia [2014] FWCFB 7198

Reasons for Decision

Introduction

  1. [1]
    Ms Debra Lee ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Clinical Nurse Consultant, Surgical Service Line, Redcliffe Hospital within the Metro North Hospital and Health Service ('MNHHS').
  1. [2]
    By letter dated 11 August 2022, Ms Louise Oriti, Executive Director, Redcliffe Hospital, wrote to the Appellant inviting her to show cause in relation to the following allegations –

Allegation 1 – It is alleged that on or about 13 September 2021, the Appellant accessed the Connect and Care Information portal (CCI) with the intention of viewing medical records for Patient URN 3384941 without legitimate reason and/or authority;

Allegation 2 – It is alleged that on or about 13 September 2021, when the Appellant accessed the Connect and Care Information portal (CCI) as outlined in Allegation One, the Appellant did so by using Ms Clare Edwards' computer without consent;

Allegation 3 – It is alleged that on or about 12 April 2022, at approximately 8:17 am, the Appellant accessed medical records in The Viewer for Patient URN 305304 without legitimate reason and/or authority;

Allegation 4 – It is alleged that on or about 12 April 2021, the Appellant breached confidentiality by disclosing information of Patient URN 305304 to Ms Nikki Anderson and Ms Clare Edwards.

  1. [3]
    On 17 March 2023, the Respondent notified the Appellant of her determination in relation to disciplinary findings and proposed disciplinary action ('the decision').
  1. [4]
    In a letter dated 17 March 2023, Allegation 1, Allegation 3, and Allegation 4 were substantiated and it was determined that there were grounds for disciplinary action pursuant to s 91(1)(h) of the Public Sector Act 2022 ('the PS Act') on the basis that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action. The letter determined that Allegation 2 was substantiated and there were grounds for disciplinary action pursuant to s 91(1)(b) of the PS Act, as the Appellant was guilty of misconduct when she engaged in inappropriate conduct in an official capacity.
  1. [5]
    The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of a demotion and transfer from the Appellant's current role of Clinical Nurse Consultant (Nurse Grade 7, pay point 4) with the Surgical Service Line to Clinical Nurse (Nurse Grade 6, pay point 4) with Theatre Bookings at Redcliffe Hospital.
  1. [6]
    In a letter dated 3 May 2023, Ms Louise O'Riordan, Acting Executive Director, Redcliffe Hospital, signed a letter to the Appellant outlining her decision to impose the disciplinary penalty of a demotion and transfer to a different work unit. 
  1. [7]
    On 21 June 2023, the Appellant filed an appeal notice appealing against a disciplinary decision dated 31 March 2023 pursuant to s 91(1)(b) of the PS Act.
  1. [8]
    The issue for determination is whether the disciplinary finding was fair and reasonable.

Legislative Framework

  1. [9]
    Section 91 of the PS Act provides the following grounds for discipline:

91  Grounds for discipline

  1. A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. been guilty of misconduct; or
  1. been absent from duty without approved leave and without reasonable excuse; or
  1. contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  1. used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  1. contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement—
  1. failing to disclose a serious disciplinary action; or
  1. giving false or misleading information; or
  1. contravened, without reasonable excuse, a provision of—
  1. this Act, other than section 39 or 40; or
  1. another Act that applies to the employee in relation to the employee's employment; or
  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. A disciplinary ground arises when the act or omission constituting the ground is done or made.
  1. Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.
  1. To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  1. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  1. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

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

relevant standard of conduct —

  1. for a public sector employee, means—
  1. standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  1. for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

  1. [10]
    Clause 5.3 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector:
  1. 5.3
    Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.
  1. [11]
    Clause 7 of the Directive provides the requirements to commence a discipline process:
  1. 7.1
    Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  1. 7.2
    Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
  1. a.
    the seriousness of the employee's personal conduct and/or work performance, and
  2. b.
    whether the matter should be resolved through management action instead, and
  3. c.
    whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
  4. d.
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
  5. e.
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
  6. f.
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  7. g.
    whether further information is required to make a decision to commence a disciplinary process, and
  8. h.
    for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

Appeal principles

  1. [12]
    The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [13]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the decision by the Respondent to impose the disciplinary action of a demotion and transfer of role was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

What decisions can the Industrial Commissioner make?

  1. [14]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [15]
    In the appeal notice, the Appellant provided the following reasons for appeal:
  1. The decision maker:
  1. unreasonably relied on the fact that the Appellant provided witness statements in support of her explanation for her conduct, as a basis for finding a lack of remorse on the part of the Appellant, where the finding of a lack of remorse was material to the outcome of the decision;
  1. made a finding that the Appellant lacked remorse, where that finding was not available on the material before the decision maker;
  1. unreasonably made a finding that the Appellant's contention that she had continued to work in her role as a Clinical Nurse Consultant without incident for the past 2 years was dishonest, where the finding of dishonesty was material to the outcome of the decision;
  1. made a finding that the Appellant was dishonest, where that finding was not available on the material before the decision maker; and
  1. otherwise made findings which were not reasonably open to it on the evidence before it.
  1. The decision maker failed to take relevant matters into consideration in reaching the decision, including that the decision maker:
  1. did not adequately consider, or place appropriate weight on, the Appellant's unblemished work history of 33 years as a registered nurse prior to December 2021;
  1. did not adequately consider, or place appropriate weight on, the fact of the Appellant undertaking various courses relevant to the substantiated conduct, as evidencing the Appellant's remorse and contrition;
  1. did not adequately consider, or place appropriate weight on, the decision of the Australian Health Practitioner Regulation Agency concerning the substantiated conduct, that being, that the conduct was not sufficiently serious as to require any disciplinary action;
  1. failed to consider, or place appropriate weight on:
  1. the fact that the Appellant is a single mother;
  1. the fact that the Appellant has otherwise never been the subject of any disciplinary action during a career of 33 years;
  1. the Appellant's evident ability to continue to work in her role as a Clinical Nurse Consultant during the conduct of the decision maker's investigations;
  1. the exceptional personal circumstances giving rise to the substantiated conduct;
  1. the absence of any prejudice suffered by any third party in connection with the substantiated conduct; and
  1. the seriousness of the substantiated conduct as against the severity of the proposed disciplinary action.
  1. The disciplinary action the decision maker decided to take was far more severe than, and disproportionate to, the substantiated conduct.
  1. There were disciplinary actions available to the decision maker, other than the disciplinary action the subject of the decision, under section 92(1) of the Public Sector Act 2022 (Qld) which were both proportionate to the gravity of the substantiated conduct, and fair and reasonable.[5]

Submissions

  1. [16]
    The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.

Appellant's submissions

  1. [17]
    In support of the Appeal, the Appellant submits the following:
  • The basis for the decision is set out within two letters to the Appellant respectively dated 17 March 2023 (March Reasons) and 3 May 2023 (May Reasons).
  • The Appellant relies on her submissions to the decision maker respectively dated 3 January 2023 (January Submissions) and 6 April 2023 (April Submissions) in addition to these submissions.

Grounds 1(a) and 1(b) Schedule A to the Appeal Notice 

  • Within the January Submissions the Appellant submitted as follows:

'Further, I have since gained written statements from Shanaya Lee and Warren Alchin (appendices 2 & 3) confirming that they personally requested for me to access their medical records. I now know and recognise that these statements are not reasonable grounds to justify me accessing their medical records, as they were not my patients, and I was not authorised to do so.'

  • Within the March Reasons, under the heading 'Consideration of disciplinary action', the decision maker finds as follows:

'While I recognise the remorse that you express in your response, I find it concerning that you also appear to attempt to minimize the seriousness of your conduct when accessing family member's medical records by stating you had their permission and describing situations where access to medical records may be appropriate.'

  • The Appellant later clarified that the purpose of the January Submissions 'was intended to provide context and not to minimize the seriousness of my actions or justify them. I take full responsibility for my conduct.'
  • Within the May Reasons, the decision maker feigns an acknowledgement of the Appellant's clarification set out above. However, despite that acknowledgement, the decision maker evidently remained of the view that the Appellant lacked remorse, given the following finding in the May Reasons:

'This further reinforces my lack of trust in you and my concerns regarding the level of remorse and reflection you appear to demonstrate'.

  • The April Submissions provide the decision maker with extensive evidence of the Appellant's genuine remorse and reflection. This evidence was in the form of statements stating that the Appellant was "open to alternatives such as education courses and professional development courses", that the inclusion of her family members' permission was "providing factual context, and was not justifying [her] actions", and that the Appellant acknowledged and reiterated that she had "extreme remorse and regret for [her] actions" and "apologise[d] profusely for [her] conduct".
  • The Appellant herself admits that her actions required her to "[regain] the trust of my colleagues, my employer, and the organisation". Nevertheless, the decision highlights the decision maker's concerns about the Appellant's level of remorse and reflection. Those findings were not reasonably open on the material before the decision maker, and were material to the outcome of the decision.

Grounds 1(c) and 1(d) Schedule A to the Appeal Notice

  • The decision maker makes a finding that the following comments made by the Appellant evidenced dishonesty: "… I have continued to work in my role as a Clinical Nurse Consultant without incident for the past 2 years following this incident…"
  • The decision maker notes that the Appellant was the subject of a disciplinary investigation during early 2022 regarding events which occurred in December 2021. The outcome of that investigation was that, although the Appellant had breached a health directive by attending at work with COVID-19 symptoms, no disciplinary action was required (Previous Investigation).
  • When referring to the fact the Appellant had worked in her role as a Clinical Nurse Consultant without incident for the past two years, the Appellant was making reference to the fact that:
  1. the Appellant had continued to work as a Clinical Nurse Consultant throughout the 2022 calendar year and the period from January – April 2023;
  1. the Appellant had nevertheless not been the subject to any adverse discipline during that time (including in respect of the Previous Investigation); and
  1. the Appellant was evidently capable of working as a Clinical Nurse Consultant, given that she had continued to do so throughout the conduct of the Previous Investigation and the investigation the subject of the decision.
  • Although it had not in fact been two years since the incidents the subject of the investigation at the time of the April Submission (being respectively April and September 2021), when the April Submission is read as a whole it is clear that the Appellant was not attempting to mislead the decision maker. Rather the Appellant was attempting to illustrate that the 'absence of further concerns or feedback regarding my ability to perform my current role' made the proposed penalty disproportionate. The finding of dishonesty against the Appellant in that regard is akin (although in different context) to Wigney J's description of an irrational or illogical finding as constituting legal unreasonableness in SZUXN.[6]
  • The decision maker then imputes a finding of dishonesty as justifying the severity of the proposed penalty (see pg 5 of the May Reasons at paragraphs 5 and 7). Particularly, the decision maker alleges that "Given the evidence of dishonesty in your response, I cannot be assured that similar behaviour will not be repeated in the future". Evidently the decision maker's unreasonable finding of dishonesty, which is at least in part informed by the imputation referred to above, was material to the outcome of the decision.

Ground 2(a) Schedule A to the Appeal Notice

  • The Appellant has worked as a registered nurse since 1992. Apart from the Previous Investigation and the subject decision, the Appellant's career has been unblemished. The Appellant noted as much within the April Submission.
  • The decision makes no reference to the Appellant's unblemished work history, save for when the decision maker makes the irrational imputation against the Appellant's honesty referred to above.
  • The Appellant's work history of over 31 years was a relevant consideration which, if properly taken into account, could have impacted on the outcome of the decision.

Ground 2(b) Schedule A to the Appeal Notice

  • The Appellant undertook various courses, at her own initiative, during the investigation relevant to the conduct the subject of the decision.
  • Although the decision maker makes note of the Appellant's completion of those courses, the decision maker fails to make the logical finding that this training evidenced remorse and/or contrition by the Appellant and would render the Appellant far less likely to engage in similar conduct in the future.

Ground 2(c) Schedule A to the Appeal Notice

  • On 15 July 2022, the Nursing and Midwifery Board of the Australian Health Practitioners Regulation Agency (AHPRA) handed down a decision to caution the Appellant concerning the conduct the subject of the decision.
  • Within the May Reasons, the decision maker found that it considered that "the outcome of AHPRA's investigation to be separate to the decision that has been made as an outcome of this discipline process". The Appellant does not contend that the outcome of AHPRA's investigation is not a separate process than the subject decision. However, being the regulator of health practitioners such as the Appellant, AHPRA's findings in relation to the seriousness of the conduct the subject of the decision cannot be said to be irrelevant. The decision maker makes no comment on the relative severity of the decision as against AHPRA's decision to only caution the Appellant.
  • In the absence of any reason within the decision to reconcile this disparity between parallel investigations of the same conduct, the decision maker has failed to take AHPRA's decision into account when making the decision. The content of AHPRA's decision was a relevant consideration which ought to have been properly considered by the decision maker when determining the severity of the proposed discipline.

Ground 2(d) Schedule A to the Appeal Notice

  • The Appellant relies on the submissions outlined above regarding grounds 2(d)(ii) – (iii).
  • The Appellant is currently a single mother of four children, one of which remains dependent. The proposed discipline has the effect of:
  1. reducing the Appellant's yearly salary by $27,496, impacting her ability to provide for her dependent child;
  1. placing the Appellant in a role which the Appellant last performed in or around March 2017;
  1. removing the Appellant from a leadership role otherwise performed of the required standards, in an already understaffed sector.
  • The proposed demotion to Grade 6, Pay Point 4 has the effect of requiring the Appellant to make an application for a vacant position in Grade 7 in order to be able to return to her current position.
  • Noting the findings made within the investigation the subject of the decision, the Appellant has reasonably held concerns that she would not be considered favourably in respect of that application. As a result, it is likely that the Appellant would remain at Grade 6, Pay Point 4 for the remainder of her career.
  • Although the conduct the subject of the decision may constitute breach by the Appellant of her obligations under the Code of Conduct of Nurses and the Code of Conduct for the Queensland Public Service, the severity of the decision is disproportionate to the Appellant's wrongdoing. This is particularly so noting the lack of damage or prejudice against any member of the public arising from the conduct the subject of the decision and the Appellant's acknowledgement of her wrongdoing.
  • As clearly expressed within the January Submissions and the April Submissions, the Appellant was facing exceptional personal circumstances when engaging in the conduct the subject of the decision. The conduct was engaged in for reasons directly connected to the Appellant's wish to help her father and daughter who had suffered from significant injuries, at a time when health services were under extreme pressure due to the COVID-19 pandemic.
  • The Appellant anticipates that she will work as a registered nurse for a further 13 years. The outcome of the decision could therefore reduce the Appellant's earnings until retirement by $357,448. Such a penalty is wholly disproportionate to the severity of the Appellant's conduct for the reasons outlined above.

Ground 3 and 4 Schedule A to the Appeal Notice

  • A number of disciplinary penalties which are proportionate to the severity of the substantiated conduct were available to the decision maker when making the decision, including:
  1. forfeiture or deferment of a remuneration increment or increase;
  1. imposition of a monetary penalty, or a proportionate reduction in remuneration level;
  1. a reprimand; or
  1. transfer or redeployment.
  • The Appellant submits that, taking into account the acknowledgement by the Appellant of the severity of her conduct, the remorse felt by the Appellant as a result of her conduct, the further education undertaken by the Appellant relevant to her conduct, the lack of actual damage or prejudice to members of the public as result of her conduct, the findings of AHPRA regarding the Appellant's conduct and the severity of the proposed discipline in proportion to the conduct, the appropriate penalty is one of the following:
  1. a reprimand; or
  1. a demotion to Grade 7, Pay Point 3; or
  1. a demotion to Grade 7, Pay Point 2. 

Respondent's Submissions

  1. [18]
    The Respondent filed submissions which are summarised below –
  • The delegate carefully considered all available material before her, including the submissions made by the Appellant throughout the disciplinary process. The delegate applied the principle in Briginshaw v Briginshaw[7] and considered the seriousness of the disciplinary findings.
  • The delegate considered the following in determining the disciplinary action –
  • The serious nature of the Appellant's conduct as demonstrated in the four substantiated allegations. The Appellant accessed medical records without legitimate reasons and/or authority on more than one occasion. The Appellant utilised a subordinate colleague's computer log-in to access one of the medical records in question without her colleague's consent. Further, the Appellant disclosed some of the information she obtained through the unauthorised access to her work colleagues.
  • The Appellant accessed medical records inappropriately on more than one occasion, which has been addressed through this disciplinary process. In addition, the Appellant has demonstrated a pattern of unacceptable behaviour, including, being subject to a disciplinary process for incidents that occurred on 20 and 21 December 2021 in relation to non-compliance with a public health direction. While the allegation was substantiated, the delegate for this process elected not to impose disciplinary action. The Respondent submits there is a pattern of contravening the expected standards outlined in the Code of Conduct for the Queensland Public Service.
  • The Appellant's current role as a Clinical Nurse Consultant with the Surgical Service Line involves leadership elements and there is limited supervision and oversight of this role given the classification level. After considering the substantiated conduct, the delegate has lost trust in the Appellant and considers that a higher degree of supervision is required to reduce the risk of similar behaviour occurring in the future. The Clinical Nurse position identified for the proposed demotion and transfer afford a higher degree of support and supervision.
  • The Appellant's conduct does not comply with the Code of Conduct for the Queensland Public Service or the organisation's values and is therefore not conducive to the delegate's expectation of a current leader within the organisation.
  • The Appellant has demonstrated dishonesty in the behaviour she had demonstrated as well as her submission in response to the Second Show Cause Letter, in which she stated she had continued to work in her role without further incident for two years following this incident. Further, the Appellant acted in a deceitful manner when she used a colleague's computer log-in to access medical records without appropriate reason and/or authority. The delegate cannot be confident that the Appellant would not demonstrate similar conduct in the future without more rigorous supervision in place.
  • The Respondent makes the following submissions in response to the Appellant's submission –
  • In regard to the Appellant's submissions that her remorse and reflection had not been given weight, the Respondent submits that in the Second Show Cause Letter, the delegate outlined her concerns regarding the Appellant's suitability for a leadership role, lack of trust in the Appellant and non‑compliance with the organisational values as the basis for the proposed disciplinary penalty.
  • The Appellant states that the delegate has made an "unreasonable finding of dishonesty" in relation to the Appellant. The Appellant's submission refers to the delegate's finding that the Appellant was dishonest in their statement "... I have continued to work in my role as a Clinical Nurse Consultant without incident for the past 2 years following this incident …". In their submission, the Appellant accepts that it had not been two years since the last incident, however, argues that the Appellant was not attempting to mislead the delegate. The Appellant argues that Minister for Immigration and Border Protection v SZUXN (2016)[8] reinforces their assertion that the finding of dishonesty is unreasonable and refers to the description of "irrational or illogical finding as constituting legal unreasonableness". The Appellant relies on the finding that an irrational or illogical finding may result in legal unreasonableness. The Respondent submits that the finding of dishonesty was based on multiple instances of dishonest conduct and that the findings in Minister for Immigration and Border Protection v SZUXN is not comparable to this Appeal.
  • The Respondent asserts that the delegate's finding of dishonesty was based on several factors, including the behaviours demonstrated in the substantiated allegations, the Appellant's use of a colleague's computer to access medical records without appropriate reasons or authority and the Appellant's statement that she had continued in her role as a Clinical Nurse Consultant without incident for the two years following allegations relevant to this disciplinary process.
  • The Appellant submits that the delegate made no reference to the Appellant's "unblemished work history, save for the [sic] when the decision maker makes the irrational imputation against the appellants' honesty …". The Respondent submits that the Appellant's work history was considered. There have been multiple concerns regarding the Appellant's conduct since December 2021, presenting an unacceptable risk should the Appellant continue in their role.
  • The Appellant argues that AHPRA cautioned the Appellant regarding the concerns addressed in this disciplinary process and the delegate had failed to take AHPRA's decision into account. The Respondent submits that the delegate must consider matters in addition to the registration to those considered by AHPRA. The Respondent refers to Oss v State of Queensland (Queensland Health) in which IC Power determined "decisions regarding the appropriate disciplinary action for behaviour in the workplace that constitutes a breach of a code of conduct will necessarily involve considerations beyond the issue of the employee's registration such as trust and confidence."[9] The Respondent submits that the delegate has considered the trust and confidence they have in the Appellant when making her decision.
  1. [19]
    The Appellant's submissions in reply are summarised as follows –
  • The Respondent asserts they cannot be confident the Appellant would not engage in similar conduct in future without more rigorous supervision in place. In this regard, the Appellant submits that:
  1. demotion is not necessary in order to implement whatever level of supervision the Respondent may reasonably consider necessary in the Appellant's current role;
  1. the Respondent clearly did not consider it necessary for the Appellant to be subject to 'rigorous' supervision either during the lengthy investigation period relevant to the decision, or after the conclusion of the investigation on 7 June 2023 to date, as the Appellant was permitted to continue in her current position; and
  1. demotion is in fact unnecessary, because there is no risk of similar conduct occurring in the future for the reasons outlined in previous submissions and below.
  • The Appellant submits that the position taken by the Respondent in their Submissions confirms the Respondent has failed to consider the Appellant's remorse and reflection in making the decision, justifying a less severe penalty.
  • The Appellant submits:
  1. she has acknowledged she engaged in the conduct the subject of the decision; and
  1. she does not accept the finding of dishonesty as to her statement she continued in her role without incident for the two years following the conduct the subject of the decision (which is an irrational and illogical finding as outlined in submissions filed 9 August 2023).
  • The Appellant submits that despite the Respondent's assertion that the Appellant's work history was considered in making the decision:
  1. no reference is made to such history in the reasons for the decision, save for the Previous Investigation; and
  1. no reference is made to the Appellant's years of strong and devoted service. The absence of prior similar conduct by the Appellant is a significant mitigating factor in favour of a less severe penalty, which does not appear to have been given any weight by the Respondent.
  • The Respondent asserts it had 'multiple concerns' regarding the Appellant's conduct, giving an unfair and false impression that the Appellant has engaged in further conduct of concern in her employment (apart from what is referenced in the Respondent's Submissions). In this regard, the Appellant submits the Respondent cannot have 'multiple concerns' regarding her conduct because:
  1. save the Previous Investigation and the subject decision, the Appellant has not been subject to any formal or informal disciplinary matters or investigations regarding her conduct during her 31-year work history as a nurse;
  1. the conduct the subject of the decision was an uncharacteristic lapse in judgment (given her otherwise unblemished work history, save for the Previous Investigation), in circumstances where she was under extreme personal stress;
  1. the conduct the subject of the Previous Investigation did not result in any disciplinary action; and
  1. the Respondent has otherwise failed to particularise the alleged 'multiple concerns' to allow the Appellant any opportunity to respond to same.
  • The Respondent asserts there is an 'unacceptable risk' should the Appellant continue in her current role. The Appellant submits there is no risk because:
  1. the Respondent was content to keep the Appellant in her current role without supervision or any other adjustments during the investigation the subject  of the decision. This indicates the Respondent has no true concerns of any unacceptable risk with the Appellant continuing in her current role;
  1. the Respondent may enforce some degree of supervision over the Appellant in her current role if there are any true concerns regarding her future conduct; and
  1. the Appellant has shown an understanding of the severity of her conduct, remorse for her actions (in particular towards her direct colleagues) and has taken the initiative of undertaking further training relevant to her conduct, none of which has been given any true weight by the decision-maker.
  • The Appellant submits that:
  1. notwithstanding it may be necessary for the decision-maker to consider other matters in addition to those considered by AHPRA, AHPRA's decision is still a relevant consideration that ought to have been taken into account by the decision-maker; and
  1. any allegation of a loss of trust and confidence must be soundly and rationally based. The Respondent's assertion of a loss of trust and confidence is irrational.

Consideration

  1. [20]
    The matter under appeal is that of the delegate's decision that a disciplinary penalty be imposed following the making of a disciplinary finding.
  1. [21]
    On the facts provided, it is common ground that the Appellant engaged in the conduct that was the subject of Allegations One, Two, Three and Four as outlined above in [2]. The basis of the Appellant's appeal relates to the decision to impose the following disciplinary action as outlined in the decision  –

A demotion and transfer from [the Appellant's] current role of Clinical Nurse Consultant (Nurse Grade 7, pay point 4) with the Surgical Service Line to Clinical Nurse, Theatre Bookings, Redcliffe Hospital (Grade 6, pay point 4).

  1. [22]
    As outlined in grounds 1(a) and (b) in the Notice of Appeal, the Appellant contends that the delegate unreasonably relied on the Appellant's provision of witness statements in support of her explanation for her conduct as a basis for finding a lack of remorse. The Appellant submits that the statements were submitted to provide context for her conduct.
  1. [23]
    In the Statement of Reasons attached to the second show cause notice inviting the Appellant to respond to the proposed disciplinary action, the delegate stated the following –

While I acknowledge you have expressed remorse for your actions, I find it concerning that you willingly evaded the trust of your colleague by accessing her computer without her consent.

…

While I recognise the remorse that you express in your response, I find it concerning that you also appear to attempt to minimise the seriousness of your conduct when accessing family member's medical records by stating that you had their permission and describing situations where access to medical records may be appropriate.

  1. [24]
    In the decision the delegate stated the following –

I acknowledge your assertion that the information you included in your response to the first show cause correspondence related to the consent your family members provided to access their medical records was not included to minimise or provide justification for your conduct. Despite this, I remain concerned that you accessed medical records inappropriately on more than one occasion, and that you also disclosed the information you gained inappropriately with your colleagues. As stated in my earlier correspondence, this behaviour is not compliant with the Code of Conduct for Nurses, the Code of Conduct for the Queensland Public Service and the values of our organisation, nor conducive [sic] my expectations of a leader within Redcliffe Hospital.

  1. [25]
    As outlined in [23], the delegate considered the remorse expressed in the Appellant's response to the second show cause notice. Although the Appellant describes the submissions as an 'explanation for her conduct', it was reasonable to assess the explanation as an attempt to reduce the seriousness of the conduct on the basis that the subject patients had provided permission. In these circumstances, it was not unreasonable for the decision maker to consider that the extent of the remorse was tempered by the attempt to minimise the seriousness of the conduct.
  1. [26]
    The decision imposing the disciplinary action did not indicate that the delegate was of the view that the Appellant lacked remorse, nor that this was the basis for the decision to impose the disciplinary action. The decision outlines as the basis for the disciplinary action, concerns regarding the Appellant's suitability for a leadership role with minimal supervision given the lack of trust and the incongruence between the Appellant's conduct and the Respondent's organisational values as outlined in the Code of Conduct for Nurses and the Code of Conduct for the Queensland Public Service. 
  1. [27]
    The level of remorse was not a significant factor in the delegate's decision and to the extent that the delegate considered that the Appellant's response attempted to minimise the seriousness of her conduct, such a consideration was not unreasonable.

Work history & dishonesty (Ground 2 (a))

  1. [28]
    As outlined in Grounds 1(c) and (d), and 2(a) in the Notice of Appeal, the Appellant submits that the delegate did not adequately consider or place appropriate weight on the Appellant's unblemished work history of 33 years as a registered nurse prior to December 2021. The Appellant also submits that the delegate made an 'unreasonable finding of dishonesty' in relation to the Appellant's contention that she had continued to work in her role as a Clinical Nurse Consultant without incident for the past 2 years.
  1. [29]
    The Respondent submits that the delegate's finding of dishonesty was based on several factors, including the behaviours demonstrated in the substantiated allegations, the Appellant's use of a colleague's computer to access medical records without appropriate reason or authority, and the Appellant's statement that she had continued in her role as a Clinical Nurse Consultant without incident for the two years following the conduct relevant to this disciplinary process.
  1. [30]
    The Respondent submits that the Appellant's work history was considered and there have been multiple concerns regarding the Appellant's conduct since December 2021, presenting an unacceptable risk should the Appellant continue in their role. The Appellant submits that there is no reference to such history in the reasons for the decision, save for the previous investigation, and no reference is made to the Appellant's years of strong and devoted service.
  1. [31]
    The delegate found that the Appellant was dishonest in her statement that she had continued to work in her role as a Clinical Nurse Consultant "without incident for the past 2 years following this incident …". The delegate outlined the following consideration in the decision –

You received an outcome to a disciplinary matter dated 26 May 2022 for incidents that occurred on 20 and 21 December 2021 in relation to non-compliance with a public health direction order. While the delegate chose not to issue a disciplinary action for that matter, one of the allegations was substantiated. I therefore consider your statement that you have conducted yourself "without incident for the past 2 years following this incident" to be dishonest and misleading. This further reinforces my lack of trust in you and my concerns regarding the level of remorse and reflection you appear to demonstrate.

  1. [32]
    In circumstances where the Appellant does not dispute that she had been subject to a disciplinary process resulting in a substantiated allegation in the period after the conduct that is the subject of this decision, it was open to the delegate to determine that the submission made by the Appellant was dishonest and misleading. It was not unreasonable for the delegate to have concerns about the Appellant's level of honesty, given her lack of candour on this issue.
  1. [33]
    The Appellant refers to the matter of Minister for Immigration and Border Protection v SZUXN, contending that "irrational or illogical findings constitute legal unreasonableness".[10] The test of 'legal unreasonableness' that is applied in a judicial review matter is not the test in a public service appeal brought pursuant to s 562B(3) of the Industrial Relations Act. In Colebourne v State of Queensland (No. 2), Deputy President Merrell considered the test of reasonableness in the context of a public service appeal and determined that the terms 'fair and reasonable' are to be given their ordinary meaning rather than a technical legal meaning. Deputy President Merrell stated –

However, there is no reason to conclude that the adjectives 'fair' and 'reasonable' that make up the phrase 'fair and reasonable' should be construed in any way other than in their ordinary meaning. The task in conducting a public service appeal is to review the decision appealed against for the purpose of deciding whether the decision appealed against was 'fair and reasonable' not whether the decision was unreasonable having regard to the legal standard of reasonableness.[11]

  1. [34]
    It is not in dispute that the Appellant used a co-worker's computer to access information without her knowledge or approval, and subsequently made submissions that she had been employed 'without incident' in the years since when this was not accurate.  In these circumstances, it was not unreasonable for the delegate to interpret such actions as evidence of dishonesty.
  1. [35]
    The Appellant asserts that that decision does not reference multiple concerns regarding the Appellant's conduct, except for the 'Previous Investigation'. The delegate outlines in the decision that she was concerned about the Appellant's conduct in the previous disciplinary matter, which is presumably the concerns referred to by the Respondent. There is no indication that there were other conduct concerns considered by the delegate.
  1. [36]
    Whilst specific reference was not made to the Appellant's years of 'strong and devoted service', it is not necessary that all submissions are referred to in the decision in the terms in which they are made. In the Statement of Reasons attached to the second show cause notice, the delegate outlined the following –

As a Registered Nurse with many years of experience, I find it very concerning that it is only now that you "know and recognise" that you cannot access the medical records for patients whose care you are not involved in.

…

I understand you also have a long history of employment with Queensland Health and are employed in a leadership position with Redcliffe Hospital.

…

Given your extended employment history with Queensland Health and your role as a leader within our organisation, I find it difficult to understand why you would not have previously been aware of your obligations under the Code of Conduct, and only recently determined that you could not use Queensland Health databases to access medical information regarding your family members.

  1. [37]
    In the second show cause notice the delegate referred to the Appellant's level of experience when noting that she was 'shocked' that the Appellant gave no consideration to the reputation of her co-worker when she chose to impermissibly use her co-worker's computer to view medical records. The delegate states that this conduct was not reflective of a registered nurse with the Appellant's level of experience. It was open to the delegate to determine that the Appellant should have been aware that her conduct was not appropriate given her years of experience. 
  1. [38]
    The Appellant outlined in ground 2(b) in the appeal notice and in further submissions that the delegate did not consider or place appropriate weight on the fact that the Appellant undertook various courses relevant to the substantiated conduct as evidencing the Appellant's remorse and contrition.
  1. [39]
    The delegate stated in the decision that they "acknowledge the learning and reflections you have completed regarding the allegations against [the Appellant]."
  1. [40]
    The statement above indicates that the delegate did in fact consider the learnings completed by the Appellant. It was not unreasonable for the delegate to determine that these learnings did not outweigh the seriousness of the Appellant's conduct.
  1. [41]
    As outlined in ground 2(c) in the notice of appeal, the Appellant contends that the delegate did not place appropriate weight on the decision of AHPRA concerning the substantiated conduct, that being that the conduct was not sufficiently serious as to require any disciplinary action.
  1. [42]
    The Respondent submits that AHPRA cautioned the Appellant regarding the concerns addressed in this disciplinary process. The Respondent submits that the delegate must consider matters in addition to the registration to those considered by AHPRA, referring to Oss v State of Queensland.[12] The delegate was entitled to consider the trust and confidence they have in the Appellant as an employee when making their decision.
  1. [43]
    The Respondent contends that they cannot be confident the Appellant would not engage in similar conduct in future without more rigorous supervision in place. The Appellant submits that demotion is not necessary to implement an appropriate level of supervision and that there is no risk of similar conduct occurring in the future. The Appellant also notes that the Respondent did not consider it necessary for the Appellant to be subject to 'rigorous' supervision in the period to date as she was permitted to continue in her current position.
  1. [44]
    The delegate states within the decision that "in order to manage the risks identified, I consider it necessary for you to be employed in a role that is more closely supervised."
  1. [45]
    The delegate has imposed disciplinary action that reflects the level of the loss of trust and confidence whilst allowing the Appellant to continue working for the organisation. Based on the substantiated conduct of the Appellant this is a rational, fair, and reasonable decision.
  1. [46]
    The fact that the Appellant has been permitted to continue in her current position does not reflect the Respondent's trust and confidence, but rather the obligation to ensure that procedural fairness is afforded to the Appellant throughout the investigation, show cause process, and appeal timeframe.
  1. [47]
    The Appellant refers to Thinh Nguyen and Anor v Vietnamese Community in Australia ('Thinh')[13] in support of her submission that an assertion of a loss of trust and confidence must be sound and rational, although noting that this matter involved an unfair dismissal application. In Thinh, the Full Bench of the Fair Work Commission also stated that "each case must be decided on its own facts, including the nature of the employment concerned".[14] I am satisfied that the conduct substantiated in this matter provides a sound and rational basis upon which the Respondent would lose trust and confidence in the Appellant. This loss was not so severe as to result in the termination of the Appellant's employment; however, it was a rational conclusion upon which the disciplinary finding was based.
  1. [48]
    The delegate demonstrated consideration of the Appellant's submission in the decision as outlined –

Later in your response, you highlight that, after reviewing this matter the Australian Health Practitioner Regulation Agency (AHPRA) considered "a caution was deemed adequate to manage the risk posed by my conduct". I consider the outcome of AHPRA's investigation to be separate to the decision that has been made as an outcome of this discipline process. Metro North Health has an obligation to not only consider the safety of our patients, but also your alignment with our organisation's values, your compliance with the Code of Conduct for the Queensland Public Service and the impact of your conduct on our reputation and your colleagues.

  1. [49]
    As the delegate considered additional matters beyond the registration by AHPRA, it was open to determine that different disciplinary action be taken. There is no requirement that the decision of AHPRA be adopted by the Respondent, particularly given that AHPRA is not the Appellant's employer. In consideration of the Appellant's conduct in contravention of her obligations to the employer and lack of compliance with the Code of Conduct for the Queensland Public Service, it was open to the delegate to impose more severe disciplinary action than the caution imposed by AHPRA.
  1. [50]
    As outlined in grounds 3 and 4 in the appeal notice, the Appellant contends that the disciplinary action was disproportionate to the substantiated conduct and that other disciplinary actions were available that were proportionate to the gravity of the substantiated conduct.
  1. [51]
    Consideration of whether a decision is 'fair and reasonable' requires an assessment of whether procedural processes were followed in a fair manner and whether the outcome was reasonable as per the ordinary meaning of the word.
  1. [52]
    The disciplinary finding for the conduct subject of Allegations 1, 3 and 4 was that the Appellant had contravened, without reasonable cause, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action pursuant to s 91(1)(h) of the PS Act. The substantiated conduct subject of Allegation 2 gave rise to a disciplinary finding of misconduct in that the Appellant was found to have engaged in inappropriate conduct in an official capacity pursuant to s 91(1)(b) of the PS Act. While the first disciplinary finding is less serious, the second finding that the Appellant had engaged in misconduct is more serious and generally warrants more significant disciplinary action.
  1. [53]
    As noted by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman')[15] the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct within the definition of misconduct in s 91(5).
  1. [54]
    After considering the observations of Justice Daubney in Mathieu v Higgins ('Mathieu')[16], Deputy President Merrell outlined in Coleman the following view of the term 'misconduct' in the PS Act:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[17]

  1. [55]
    The conduct of the Appellant as outlined in Allegation 2 cannot reasonably be considered 'carelessness, incompetence of efficiency' as discussed in Mathieu. The Appellant's conduct in accessing her colleague's computer to then access patient records was an abuse of the privilege and confidence enjoyed by a public service employee. Accordingly, it was open to the delegate to consider that the appropriate disciplinary finding was one of misconduct.
  1. [56]
    The delegate considered the severity of the disciplinary action, noting that she appreciated that a demotion and transfer will have an impact on the Appellant's career. The delegate reasonably determined however that the behaviour posed a risk to patient care, the reputation of the organisation, and to the wellbeing of those employees led by the Appellant. 
  1. [57]
    The Appellant submits that the reduction in earnings for the rest of her career is significant and disproportionate. I note that the delegate confirmed in the decision that this disciplinary action does not preclude the Appellant from applying for roles at the Clinical Nurse Consultant level in the future. If the Appellant was to successfully return to her previous level, the loss of earnings will be less significant.
  1. [58]
    On the information before the Commission, I am satisfied that the decision was fair and reasonable.

Order

  1. [59]
    I make the following order:

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

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland & Anor [2018] QSC 319, 5.

[4] IR Act, s 562B(3).

[5] Schedule A of Appellant's Appeal Notice, filed 28 June 2023, pg 1.

[6] Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210, 56.

[7] [1938] HCA 34.

[8] [2016] FCCA 69 AAR

[9] Oss v State of Queensland (Queensland Health) [2022] QIRC 155

[10] Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210

[11] Colebourne v State of Queensland (Queensland Police Service) (No.2) [2022] QIRC 016, 25.

[12] Oss v State of Queensland (Queensland Health) [2022] QIRC 155

[13] Thinh Nguyen and Anor v Vietnamese Community in Australia [2014] FWCFB 7198

[14] Ibid, 47.

[15] [2020] QIRC 032

[16] [2008] QSC 209

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

Close

Editorial Notes

  • Published Case Name:

    Lee v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Lee v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 130

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    24 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
1 citation
Jump To
Cite 1 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Briginshaw v Briginshaw (1938) HCA 34
2 citations
Jump To
Cite 1 - (1938) HCA 34
Cite 2 - (1938) HCA 34
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
3 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Cite 3 - [2020] QIRC 32
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Mathieu v Higgins [2008] QSC 209
2 citations
Jump To
Cite 1 - [2008] QSC 209
Cite 2 - [2008] QSC 209
Minister for Immigration and Border Protection v SZUXN (2016) 69 AAR 210
3 citations
Jump To
Cite 1 - (2016) 69 AAR 210
Cite 2 - (2016) 69 AAR 210
Cite 3 - (2016) 69 AAR 210
NBDV v Minister for Immigration [2016] FCCA 69
1 citation
Jump To
Cite 1 - [2016] FCCA 69
Nguyen v Vietnamese Community in Australia t/a Vietnamese Community Ethnic School South Australia Chapter [2014] FWCFB 7198
2 citations
Jump To
Cite 1 - [2014] FWCFB 7198
Cite 2 - [2014] FWCFB 7198
Oss v State of Queensland (Queensland Health) [2022] QIRC 155
3 citations
Jump To
Cite 1 - [2022] QIRC 155
Cite 2 - [2022] QIRC 155
Cite 3 - [2022] QIRC 155

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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