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  4. Gibson v State of Queensland (Queensland Health) (No. 2) - [2024] QIRC 161

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Gibson v State of Queensland (Queensland Health) (No. 2)[2024] QIRC 161

Gibson v State of Queensland (Queensland Health) (No. 2)[2024] QIRC 161

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Gibson v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 161

PARTIES:

Gibson, Jason

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/30

PROCEEDING:

Public Sector Appeal – Appeal against a disciplinary decision

DELIVERED ON:

28 June 2024

MEMBER:

Pidgeon IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – where the appellant is employed by the respondent as a Clinical Measurement Scientist Consultant Director, Allied Health – where there is a disciplinary finding of misconduct – where the appellant appeals the disciplinary action decision

LEGISLATION AND

OTHER INSTRUMENTS:

Code of Conduct for the Queensland Public Service Discipline Directive 05/23 cls 4.3, 7.2, 9.5(d), 9.6, 11

Industrial Relations Act 2016 (Qld) ss 562B(3), 562C(1)

Public Sector Act 2022 (Qld) ss 91, 92, 101(3), 129, 131, 133

Reasons for Decision

Introduction

  1. [1]
    Mr Jason Gibson ('the Appellant') is currently employed by the State of Queensland (Queensland Health) ('the Respondent') at the Sunshine Coast University Hospital as a HP 6 Clinical Measurement Scientist Consultant Director. The Appellant has been employed in this role since 5 December 2011.
  1. [2]
    On 5 October 2023, Mr Gibson was issued with a disciplinary finding decision which substantiated one allegation ('the Allegation') and, on the basis of that finding, pursuant to s 91(1)(b) of the Public Sector Act 2022 (Qld) ('the PS Act'), Mr Gibson is guilty of misconduct, that is 'inappropriate or improper conduct in an official capacity' within the meaning of s 91(5)(a) of the PS Act.
  1. [3]
    Ms Shaw, Chief Operating Officer, Sunshine Coast Hospital and Health Service ('the decision-maker') proposed the following disciplinary action to be taken against Mr Gibson: '…a reduction in classification level and consequential change of duties…'.[1] Mr Gibson was given an opportunity to respond to the proposed disciplinary action and did so through his legal representatives.
  1. [4]
    On 2 February 2024, the decision-maker, wrote to the Appellant confirming that the proposed disciplinary action, as outlined in the 5 October 2023 letter, would be imposed.[2]
  1. [5]
    On 14 February 2024, the Appellant, through his solicitors, wrote to the decision-maker seeking clarification on the disciplinary action to be taken against him. Specifically, Mr Gibson's representatives sought to confirm the reduced classification level proposed by the Respondent as well as a description of the corresponding duties to be imposed.
  1. [6]
    The decision-maker responded on 20 February 2024, providing further particulars of the disciplinary action to be imposed and assigning the Appellant to the position of a HP 5 Clinical Measurement Scientist (Cardiac) – Advanced (Echocardiographic Services).[3] The Respondent says that, recognising Mr Gibson's potential reluctance for a clinical role, the decision-maker proposed an alternative role, being the Allied Health Workforce Development Officer position also at Classification HP 5.
  1. [7]
    Mr Gibson appeals the disciplinary action decision.[4]

Appeal Principles

  1. [8]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('the IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [9]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be disturbed on appeal.
  1. [10]
    A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the decision-maker.
  1. [11]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative framework

  1. [12]
    Section 131 of the PS Act lists various classifications of decisions against which an appeal may be made. Pursuant to s 131(1)(c), an appeal may be made against a disciplinary decision.
  1. [13]
    Disciplinary decisions are defined within s 129 of the PS Act, which relevantly states:

129  Definitions for part

…

disciplinary decision means a decision under a disciplinary law to discipline—

  1. a person (other than by termination of employment), including the action taken in disciplining the person; or
  2. a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.
  1. [14]
    Furthermore, s 133 of the PS Act details who may appeal a disciplinary decision:

133Who may appeal

…

  1. for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive
  1. [15]
    I am satisfied that the decision being appealed against is one that may be appealed against pursuant to s 131(1)(c) and that Mr Gibson satisfies the requirements of a public sector employee who may appeal this decision pursuant to ss 129 and 133 of the PS Act.

Mr Gibson's reasons for appeal

  1. [16]
    Mr Gibson's appeal notice was accompanied by an affidavit which set out his reasons for appeal. The reasons for appeal will be discussed in detail throughout this decision, however, I have summarised the primary features of Mr Gibson's reasons as:
  • the decision was harsh, unjust and disproportionate;
  • the decision does not take into account Mr Gibson's work history and career prospects;
  • the change of duties is not suitable in circumstances where Mr Gibson has not performed any duties under the clinical stream for seven years in a rapidly changing field;
  • the Department has not conducted the disciplinary proceedings in an expeditious way and Mr Gibson has already been subjected to restricted duties for a period of around 8 months;
  • the Department has failed to consider his submission that the finding of misconduct is at the highest end of the scale with respect to the proposed grounds for discipline;
  • the Department proceeded directly to formal disciplinary proceedings without due consideration of the appropriateness of local management action;
  • the Department failed to consider any suitable alternative disciplinary action which would not affect his remuneration, classification and/or duties;
  • the decision will cause him financial hardship; and
  • the disciplinary proceedings have negatively impacted Mr Gibson's mental health.
  1. [17]
    Mr Gibson's appeal notice does not state that he appeals the decision to substantiate the Allegation. The Respondent submits that the decision on the disciplinary penalty is the only decision being appealed against.
  1. [18]
    Mr Gibson's reasons for appeal make it clear that he is dissatisfied with the finding of misconduct, however, his submissions filed 7 June 2023 state, '…the sole purpose of this appeal is for the Commission to decide whether the Disciplinary Action Decision was fair and reasonable'.[5] Where Mr Gibson's submissions relate to the appropriateness of the commencement of the disciplinary process, the decision to substantiate the Allegation, or the appropriateness of the disciplinary finding of misconduct, these matters will be not be considered.
  1. [19]
    This appeal requires me to determine whether the disciplinary action decision was fair and reasonable.

Background – the disciplinary finding of misconduct

  1. [20]
    The Discipline Directive (Directive 05/23) ('the Discipline Directive') stipulates that the seriousness of the conduct is a matter which must be assessed in determining whether to commence a disciplinary process,[6] and the relevant seriousness should also be considered when proposing appropriate and proportionate disciplinary action.[7] In the context of the provisions set out in the Discipline Directive, it is useful to understand the substantiated conduct and the finding of grounds for discipline on the basis of misconduct in an official capacity.
  1. [21]
    For completeness, I note that some of the information provided in relation to the Allegation was assessed as a public interest disclosure under the Public Interest Disclosure Act 2010 (Qld).[8]
  1. [22]
    The Allegation against Mr Gibson was:
  1. Allegation one

It is alleged that you failed to appropriately exercise your authority in your position as Clinical Measurement Scientist Consultant Director through approving for the employee[9] to conduct echocardiograms on her spouse on multiple occasions including and prior to 11 February 2023.[10]

  1. [23]
    In the disciplinary finding decision of 5 October 2023, the decision-maker sets out Mr Gibson's submissions put forward by his legal representatives. The disciplinary finding commences at the bottom of the fourth page of the letter. The disciplinary finding largely addresses the seriousness of the conduct and the mitigating factors submitted by Mr Gibson, as detailed below:

My findings – Allegation one

I acknowledge you admit to having knowledge of the employee's use of echocardiography equipment on multiple occasions and acknowledge the remorse and embarrassment you have articulated in your response, giving an undertaking to take active and meaningful steps toward sustained correction of your conduct.

I note the medical complexities of the employee's spouse that you reference and statement [sic] that your acquiescence to use of the equipment was on the basis of compassionate grounds,

While I am cognisant to [sic] the challenges of medical complexities, I confirm this does not negate the requirement to abide by Health Service Procedures and the Code of Conduct for the Queensland Public Service (Code of Conduct) as a Queensland Health employee.

You assert that you did not "provide express permission or consent for the employee to conduct echocardiography tests on her spouse on any occasion," yet have not provided evidence of having communicated, to the employee, in any way that would lead the employee to believe that permission or consent had been refused.

A reasonable person would expect that, as a direct line manager with your level of experience and seniority, active steps would be taken to not only refuse the employee consent to use the equipment as requested by her, but such correspondence regarding the matter would be documented and shared with the employee. It would be reasonable for the employee to assume that consent had been granted by you, if, as you claim, you had not explicitly refused consent.

Further, your response states that you "encouraged her to proceed via formal channels," but does not provide detail as to when any such conversation with the employee occurred, nor is there evidence provided as to the content of the conversation.

For matters of this level of seriousness and significance, I would expect that communication is provided to a subordinate, providing them with specific direction and clarity of the actions required of them, including reference to the obligations in relation to the Code of Conduct that is placed on all staff and a reminder of the correct referral process.

The information provided in the statement of Witness 1 (provided in Attachment 8 of my previous correspondence) references a conversation with you on 7 February 2023, where concerns were raised around the employee's intentions. Witness 1 is specific in their recollection when they state, 'Jason agreed that it probably can be performed through normal channels but he would allow this occasion and talk to Fiona about doing it this way in the future'. This version closely corroborates the employee's version of events and the initial file note authored by Rohan Poulter where you admit to allowing the procedure to take place.

On this basis, I prefer the evidence of Witness 1, Dr Poulter and the employee that, on the balance of probabilities, you were fully aware of the procedure taking place on Saturday the 111h and that you allowed the procedure to take place despite the inappropriateness of this action being brought to your attention by Witness 1.

Your response refers to Dr Poulter stating in one file note that there was no "malicious intent" behind  the employee's use of the equipment, in addition to making no reference to misconduct, only the Code of Conduct.

Dr Poulter is not the delegate in this matter and made file notes on the basis of the information available to him at that time, before then appropriately escalating the matter. No inference is to be drawn from Dr Poulter's documentation, with the level of seriousness of the matter being determined by me once in receipt of the required information.

Whilst reference is made to you not having "disobeyed lawful direction by a superior" this does not lessen the impact of your conduct and the actions taken, and taking your level of seniority into account and the level of autonomy with which your role allows you, I would expect that someone at such level is able to make clear, sound decisions as to the inappropriate nature of a subordinate employee utilising the equipment and facilities of the Health Service for their own private gain.

In your response, you state that your "conduct in no way approaches the threshold of misconduct as it is not sufficiently serious, negligent or disgraceful with no harm caused, or intended to be caused, to any person or property." I find that your conduct is sufficiently serious to meet the threshold of misconduct and you have not upheld the expectations placed upon you as a senior manager.

Whilst no harm has been caused, you have inappropriately permitted the private use of the Health Service's facilities and property, and furthermore have not given full acknowledgment to the impact these actions would have on the public's confidence in the Health Service.

The reputation of the Health Service could be significantly impacted if it became known that a senior manager of your standing had repeatedly facilitated the use of Health Service property for a staff member's relative without properly following the defined procedure for such use, and potentially impacting on the availability of such facilities and services for other members of the public.

I am concerned at the level of disregard that you appear to display towards this potential impact.

…

I have carefully considered all the material before me including your submissions and I have determined that Allegation one is substantiated on the balance of probabilities on the following basis:

  • Your admission that you had knowledge of the employee using echocardiography equipment to conduct echocardiograms on her spouse on multiple occasions prior to 11 February 2023.
  • The witness statements corroborate the allegation and your admission.
  • While I acknowledge your remorse, you fail to provide a reasonable excuse to negate the evidence presented to me and/or mitigate your actions.
  • Despite a discussion occurring with Witness 1 regarding the inappropriateness of the employee's use of the equipment and process being followed, you failed to take appropriate and reasonable steps, as a senior line manager, to prevent Ms Muller from undertaking her intended actions.
  • I have given due consideration to the delay in the actions you took to address the matter with the employee.
  • I am of the view your actions were inappropriate, unprofessional and not in keeping with the trust placed in you as apublic [sic] sector employee to act in the public interest.
  • Code of Conduct mandatory training is undertaken annually to ensure that the Health Service staff bound by the Code of Conduct are reminded of their obligations under it. This includes a module specifically for line managers to reiterate their obligations in a managerial position.
  • I determine that an employee with your level of service would be clearly aware of the nature of the conduct that is expected to be demonstrated in a professional capacity.
  • I find that your actions have constituted a fundamental breach of the responsibility to the organisation that is placed upon you in your role as a senior manager with line manager and leadership responsibilities.

On the basis of my finding in relation to Allegation one, I have determined that pursuant to section 91(1)(b) of the Act, you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the Act.

….[11]

  1. [24]
    As stated above at [18], Mr Gibson does not appeal the disciplinary finding of misconduct. The disciplinary action decision under appeal was taken based on a finding of misconduct.

The disciplinary action decision

  1. [25]
    Mr Gibson appeals the decision in relation to disciplinary action. The reasons for decision are contained in the letter from the Respondent dated 1 February 2024, which states:

My decision in relation to disciplinary action 

I have carefully considered all evidence available to me, including the submissions you make with respect to the proposed disciplinary action.

I have found that the allegation above is substantiated and must weigh up the information I have before me and compare this to your response. I have tested your response against the obligation I have to determine if there is a valid reason for implementing the penalty of a reduction in classification level and consequential change of duties, and if so, would imposing this penalty be harsh, unjust, or unreasonable in all the circumstances.

In reaching my decision on disciplinary action to be taken, I have had regard to the following:

  • The serious nature of the substantiated allegation made against you.
  • Your conduct that is subject of this matter is not in keeping with the standards expected of you as a Health Service employee pursuant to the Code of Conduct for the Queensland Public Service (Code of Conduct).
  • Your remorse in relation to the substantiated allegation.
  • The accountability you display, acknowledging that you have 'taken these disciplinary proceedings as a major learning curve and is singularly committed to sustained correction of his conduct.'
  • While I acknowledge your remorse and accountability, the gravity of your conduct is not appropriately reflected, with reference being made to your conduct being 'a relatively low scale contravention of the Code of Conduct.'
  • The expectations placed upon you in your position, as detailed in your role description:
    • Demonstrate high level management skills across a large professional team which has a multidisciplinary makeup.
    • Responsible for all aspects of operational management of the Cardiac Investigation Unit which operates over multiple sites in rural and regional areas, including responsibility for facilitating staff development, performance appraisal and other general people management issues.
  • The expectations placed upon you in your classification, as detailed in Schedule 4 - Health Practitioner Work Level Statements of Health Practitioners and Dental Officers (Queensland Health) Certified Agreement (No.4) 2022 (HPD04):
    • Demonstrates high-level management knowledge and skills and leadership abilities to manage a large team.
    • Responsible for all aspects of strategic and operational management of the given jurisdiction.
    • Accountable for the administration, direction and control of the asset management and financial management.
  • In consideration of the submissions, you make and the evidence before me, I consider the disciplinary action of a reduction in classification level and consequential change of duties is reasonable and appropriate to the serious nature of the substantiated allegations.

Based on all the written information I have before me, I find that, by failing to appropriately exercise your authority in your position, there is a valid, reasonable, and just reason for implementing the proposed penalty. I find that you have received natural justice, have been afforded the right to respond and that you have been represented throughout this process. I will now address whether I feel reducing your classification level and consequential change of duties would be harsh in all the circumstances.

  • You have been an employee of the Health Service since 5 December 2011, and you have undertaken the relevant Conduct and Ethics training regularly since your commencement. Therefore, I find it reasonable to expect that you would be acutely aware of the obligations bestowed upon you as it relates to ethical conduct and the Code of Conduct for the Queensland Public Service (Code of Conduct).
  • While I acknowledge you have not been the subject of any prior disciplinary proceedings, I have weighed this factor against the gravity of the disciplinary finding and the nature of the substantiated misconduct. The absence of prior disciplinary action is not necessarily determinative to the proposed disciplinary action upon consideration of the seriousness of the substantiated conduct.
  • The allegation is relevant to your conduct in a professional capacity, given the employee approached you in your role as her line manager, seeking permission for her use of Health Service equipment in a private capacity.
  • I remain of the view that in your role as Clinical Measurement Scientist Consultant Director, you had full opportunity to exercise the expectations placed upon you in this role upon receiving the employee's request, rather than empathetically acquiescing to her request.
  • I find that by not directing the employee to the appropriate intake and referral process, with you having had full opportunity to do so, this is a significant departure from the expectations of an employee holding your position and gives me significant concern around the appropriateness of you remaining in such a leadership role.
  • As the Health Service Chief Operating Officer, I have an obligation to uphold the values expected of employees, particularly as they relate to integrity, ethical conduct, and trust. Members of the public have a right to expect that employees of the Health Service will emulate such values, and it is my role to ensure this public expectation is met. This expectation applies to employees at all times, and not only in circumstances that are more likely to have public exposure than others.
  • I acknowledge the impact any decision may have on your personal circumstances; namely that the proposed penalty may impact you financially. However, your personal circumstances are not sufficient reason to mitigate the substantiated conduct. I consider your actions to be in serious contravention to what the public rightfully expect. I have given serious consideration to the submissions you have made during the disciplinary process and have determined they do not excuse your conduct.
  • In your response dated 3 November 2023, you propose alternate penalties of a reprimand, training with respect to the expectations of persons in leadership and/or management roles and a number of classification and remuneration reductions. However, I do not consider your proposed alternate disciplinary action appropriately addresses the seriousness of your actions, specifically in relation to the leadership and management expectations placed upon you in your position at your designated classification.

The substantiated allegation, in my view, constitutes a significant enough departure from the expected behaviour of an employee in a leadership position in the Health Service that I consider the proposed disciplinary action of a reduction in classification level and consequential change of duties to be proportionate to the substantiated conduct.

Accordingly, I have determined to impose the following disciplinary action under section 93 of the Act:

  • A reduction in classification level and consequential change of duties[12]

Was the disciplinary action decision fair and reasonable?

Discipline Directive 05/23

  1. [26]
    Clause 9.5(d) of the Discipline Directive sets out the matters the chief executive should consider in proposing appropriate and proportionate disciplinary action:
  1. The seriousness of the disciplinary finding;
  2. The employee's classification level and/or expected level of awareness about their performance or conduct obligations;
  3. Whether extenuating or mitigating circumstances applied to the employee's actions;
  4. The employee's overall work record including previous management interventions and/or disciplinary proceedings;
  5. The employee's explanation (if any);
  6. The degree of risk to the health and safety of employees, customers and members of the public;
  7. The impact on the employee's ability to perform the duties of their position;
  8. The employee's potential for modified behaviour in the work unit or elsewhere;
  9. The impact a financial penalty may have on the employee; and
  10. The cumulative impact that a reduction in classification and/or pay-point may have on the employee; and
  11. The likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding.[13]
  1. [27]
    In determining whether the decision was fair and reasonable, I will first consider each party's submissions as to whether the matters articulated by cl 9.5(d) and set out above at [26] were properly taken into account by the decision-maker. I note that Mr Gibson submits that the Respondent relies 'almost exclusively'[14] on the finding of misconduct as the basis for the disciplinary action, and that the Respondent has not considered sub-cls 9.5 (d)(iii) to (xi).

Clause 9.5(d)(i) The seriousness of the disciplinary finding

  1. [28]
    As noted above, the disciplinary finding was that Mr Gibson was guilty of misconduct as defined in s 91(5)(a) of the PS Act, that is inappropriate or improper conduct in an official capacity. This is a serious disciplinary finding.
  1. [29]
    While Mr Gibson submits he contests the disciplinary finding and has done so throughout the disciplinary process, the disciplinary finding itself is not under appeal.
  1. [30]
    Mr Gibson submits that the seriousness of the conduct is mitigated by it:

being a single misstep or oversight grounded in empathy in an otherwise long and unblemished career and in those circumstances the conduct was (at least partially) an isolated issue of performance in so far as the conduct was contributed to by the Appellants heavy workload, highly demanding position.[15]

  1. [31]
    The Respondent submits that it carefully considered cl 9.5(d)(i) and says that the decision reflects a thorough assessment of the gravity of the Appellant's misconduct, as outlined in the discipline penalty letter dated 1 February 2024.
  1. [32]
    The Respondent maintains the serious nature of the substantiated Allegation against Mr Gibson, specifically the failure to appropriately exercise his authority in the role by allowing the employee to conduct echocardiograms on her spouse for personal use. The Respondent says that this action is determined to be a clear breach of the expected standards of conduct for a public sector employee in a leadership position such as Mr Gibson's.

Consideration: cl 9.5(d)(i)

  1. [33]
    As has been noted above, the decision-maker was determining the disciplinary action to be taken against Mr Gibson on the basis of a substantiated allegation and a finding that Mr Gibson was guilty of misconduct. I am satisfied, based on the material before me and the submissions of the Respondent, that the decision-maker gave consideration to the seriousness of the disciplinary finding in determining the disciplinary action to be taken against Mr Gibson.

Clause 9.5(d)(ii) The employee's classification level and/or expected level of awareness about their performance or conduct obligations

  1. [34]
    Mr Gibson says that he did not expressly approve nor permit the use of echocardiography equipment by the sonographer, but rather, acquiesced to the personal use of that equipment on only two or three occasions.[16]
  1. [35]
    Mr Gibson says that his explanation has been taken as an aggravating factor evidencing a lack of perception. Mr Gibson says that this is inconsistent with the Respondent's obligation to take all circumstances into account in determining the appropriate and proportionate disciplinary action.
  1. [36]
    The Respondent says that the discipline penalty letter makes it clear that the decision-maker reviewed this factor as required by the Discipline Directive. The Respondent submits that Mr Gibson is a senior leader who has had extensive training and refreshers as required by the PS Act and the Code, which form the basis of his obligations at the HP 6 classification.

Consideration: cl 9.5(d)(ii)

  1. [37]
    I am satisfied that the decision-maker considered Mr Gibson's classification level and  expected level of awareness about his performance or conduct obligations. Further, I find that it was open to the decision-maker to conclude that in his senior leadership role and classification and with his longstanding employment with the Respondent, Mr Gibson would have been aware of his performance or conduct obligations.

Clause 9.5(d)(iii) Whether extenuating or mitigating circumstances applied to the employee's actions

  1. [38]
    Mr Gibson admits that he had knowledge of the use of the echocardiography equipment by the employee on her spouse on two or three occasions 'but only in so far [sic] that any acquiescence to that use was indirect and on the basis of compassionate grounds (because) … the employee initially indicated to our client she was the only person able to conduct the echocardiography on her spouse without causing her considerable pain, discomfort and anxiety …'.[17]
  1. [39]
    Mr Gibson says that he had a substantial workload at the material time and, further, that he acted out of empathy for the compassionate grounds by which the relevant sonographer sought use of the echocardiography equipment.
  1. [40]
    The Respondent says it took into consideration various factors that could be seen as extenuating or mitigating circumstances. The Respondent also submits that the decision-making process implicitly addressed key points raised by Mr Gibson and his legal representation in the discipline penalty letter dated 1 February 2024.

Consideration: cl 9.5(d)(iii)

  1. [41]
    I understand that Mr Gibson has identified and explained what he says are extenuating and mitigating circumstances for his conduct. I am satisfied that these were considered by the decision-maker who determined that, given Mr Gibson's seniority and the requirements of his role, these matters did not outweigh the seriousness of the conduct, nor did they lead to a conclusion that the proposed disciplinary action should not be imposed.

Clause 9.5(d)(iv) The employee's overall work record including previous management interventions and/or disciplinary proceedings

  1. [42]
    Mr Gibson makes it clear in his submissions that in his long career, he has never been the subject of disciplinary proceedings or management interventions.[18]
  1. [43]
    The Respondent says that the decision-maker's decision reflects a thorough evaluation of Mr Gibson's overall work record, acknowledging his long-standing and previously unblemished service of over 26-years with Queensland Health. The Respondent submits that it acknowledges Mr Gibson's argument that the incidents giving rise to the substantiated Allegation were motivated by altruism and were both isolated and uncharacteristic. The Respondent says that this recognition is evidence that Mr Gibson's past performance and conduct in the workplace were taken into account.
  1. [44]
    The Respondent reiterates that an absence of prior disciplinary action is not necessarily determinative to the proposed disciplinary action and points to the seriousness of the substantiated misconduct.
  1. [45]
    The Respondent cites Mr Gibson's acknowledgement that, in hindsight, he should have directed Ms Muller to comply with the correct intake and referral process. The Respondent says this acknowledgement could suggest an admission of a mistake rather than intentional misconduct if it had happened on one occasion. However, the Respondent says that it could imply an abuse of privilege when considering the misconduct occurred on multiple occasions.
  1. [46]
    The Respondent notes Mr Gibson's argument that no harm was caused to persons or property of the Health Service and that the personal use of the echocardiography equipment by the employee did not adversely impact its availability for public use, as it was used outside working hours and on weekends. The Respondent says that this argument attempts to minimise the perceived severity of the misconduct and undermines the relevant of adherence to the Code of Conduct.[19]

Consideration: cl 9.5(d)(iv)

  1. [47]
    I am satisfied that the decision-maker considered Mr Gibson's work history and that Mr Gibson has not been the subject of previous management interventions or disciplinary proceedings. The decision-maker considered these matters in the context of the conduct occurring on multiple occasions and Mr Gibson’s submissions regarding the lack of harm caused by the conduct.

Clause 9.5(d)(v) The employee's explanation (if any)

  1. [48]
    Mr Gibson's submissions and responses have extensively addressed his explanation regarding the motivation for his actions. It seems to me that Mr Gibson's explanation has been canvassed above at [38]–[41] in consideration of extenuating or mitigating circumstances.
  1. [49]
    The written decision and the Respondent's submissions in this matter make it clear that Mr Gibson's explanation has been considered by the decision-maker, who did not find that the explanation excused the conduct or lessened the need for disciplinary action to be imposed.

Consideration: cl 9.5(d)(v)

  1. [50]
    I am satisfied that Mr Gibson's explanation was considered by the decision-maker in determining the disciplinary action to be imposed.

Clause 9.5(d)(vi) The degree of risk to the health and safety of employees, customers and members of the public

  1. [51]
    There are no specific appeal submissions before me on this point. I also note that submissions and show cause responses can 'overlap' and address more than one specific element of the Discipline Directive or reasons for appeal.
  1. [52]
    I note that Mr Gibson made submissions during the show cause process that there was no risk to the public or harm caused as a result of the employee using the equipment and that the equipment was used on weekends or outside of hours and, therefore, the unsanctioned use of the equipment had no impact on the capacity of customers or members of the public to access the service.
  1. [53]
    It seems to me that the extent to which Mr Gibson's conduct risked health and safety did not factor heavily in the decision-maker's determination of disciplinary action to be imposed. However, I do note that the decision-maker was of the view that Mr Gibson's explanation regarding the equipment being used out of hours did not serve to downplay or lessen the severity of Mr Gibson's conduct.

Clause 9.5(d)(vii) The impact on the employee's ability to perform the duties of their position

  1. [54]
    There are no specific submissions before me on this point. I do note that Mr Gibson has raised concerns about the suitability of the duties required in the roles identified for him to undertake at the lower classification level. I also note the Respondent's submission that support and professional development will be available to support Mr Gibson to transition into the changed duties. I further note that the Respondent has identified two different positions for Mr Gibson to choose between.

Clause 9.5(d)(viii) The employee's potential for modified behaviour in the work unit or elsewhere

  1. [55]
    Mr Gibson submits that his conduct ought to be characterised as an isolated, out of character mistake as he 'simply did not turn his mind to the question at hand'.[20]
  1. [56]
    I understand the decision and the Respondent's submissions accept that Mr Gibson has learned from this issue and has committed to correcting his conduct.
  1. [57]
    It seems to me that this factor was considered by the Respondent, however, it was deemed appropriate for disciplinary action to be taken, both as a demonstration of the seriousness of the conduct and as a deterrent to others.
  1. [58]
    I am satisfied that the Respondent considered Mr Gibson's potential for modified behaviour in the work unit or elsewhere and that has contributed to the decision to reduce his classification by one level rather than a more serious penalty.

Clause 9.5(d)(ix) The impact a financial penalty may have on the employee

  1. [59]
    Mr Gibson says that his income will be reduced by $592.70 per fortnight and $15,463.00 per annum, not accounting for the scheduled wage increase from 17 October 2024, nor any other wage increases thereafter. Mr Gibson says that this 'constitutes a monetary penalty which exceeds the monetary penalty contemplated by s 91(2) of the PS Act which is a total of two of his periodic remuneration payments.[21] Mr Gibson also says that his wife is commencing full-time undergraduate study and will be substantially reducing her working hours resulting in a reduction of earnings within the marital pool in circumstances where he will be the primary income earner.[22]
  1. [60]
    The Respondent submits that the disciplinary penalty is consistent with s 92(1)(b) of the PS Act, being a 'reduction of classification level and a consequential change of duties', and is not a penalty pursuant to s 92(1)(f) of the PS Act being an 'imposition of a monetary penalty'.
  1. [61]
    The Respondent says that it considered the financial impact of the disciplinary penalty and the submissions made by Mr Gibson to this end. The Respondent says that the impact of the financial penalty on Mr Gibson was insufficient to outweigh the seriousness of the misconduct. The Respondent says that Mr Gibson's personal financial circumstances, including those of his wife, do not diminish the weight of the severity of the conduct in considering an appropriate disciplinary penalty. The Respondent says that the public expects Health Service employees, particularly those in leadership positions, to adhere to professional and ethical standards and that Mr Gibson's actions significantly deviated from these expectations.

Consideration: cl 9.5(d)(ix)

  1. [62]
    I agree with the Respondent that Mr Gibson's submission that the disciplinary action exceeds the allowable monetary penalty set out in the PS Act is misguided. Mr Gibson is not receiving a monetary penalty as provided for in s 92(1)(f) of the PS Act.
  1. [63]
    I am further satisfied that the financial impact on Mr Gibson has been considered by the decision-maker. The decision-maker specifically notes the financial impact on Mr Gibson in the decision and determines that any financial impact on Mr Gibson does not diminish the severity of the conduct. I also note that there has been no minimum period identified for the time Mr Gibson must work at the reduced classification before applying for an HP 6 classification level role.

Clause 9.5(d)(x) The cumulative impact that a reduction in classification and/or pay-point may have on the employee

  1. [64]
    Mr Gibson says that he will be indefinitely limited to roles within the HP 5 classification level because of the lack of availability of roles classified as HP 6 (and above) within Queensland and the disclosable nature of 'serious disciplinary action'.
  1. [65]
    Mr Gibson says that the adverse impact on employability has a cumulative adverse impact on him and subjects him to disproportionate financial hardship.
  1. [66]
    Mr Gibson says that given those circumstances, it was reasonably open to the Respondent to impose an alternative disciplinary action which would not affect Mr Gibson's remuneration, classification or duties.
  1. [67]
    The Respondent says that if the disciplinary penalty is implemented, Mr Gibson's classification level will be reduced by one level and to the highest pay point increment in that level, being HP5.2. Mr Gibson will continue to maintain permanent and full-time employment in the Health Service at the reduced classification level, and the discipline penalty does not impose any timeframe restrictions on Mr Gibson's eligibility to apply for positions at a higher classification level in the future.
  1. [68]
    The Respondent submits that while the disciplinary action will have immediate financial implications, it does not obstruct future career advancement opportunities. The Respondent asserts that the approach underscores the corrective rather than punitive nature of the disciplinary action and says that while the disciplinary action is challenging, it does not limit the Appellant's ability to progress in his career, provided he demonstrates a commitment to upholding the required standard of conduct.

Consideration: cl 9.5(d)(x)

  1. [69]
    I am satisfied that the decision-maker considered cl 9.5(d)(x). I note that Mr Gibson maintains his permanent and full-time employment in the Health Service and that there is no time restriction on Mr Gibson applying for jobs at the higher classification level in the future.

Clause 9.5(d)(xi) The likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding

  1. [70]
    The Respondent contends that the seriousness of the substantiated Allegation and the expectations placed upon Mr Gibson in his leadership role warrant the disciplinary action of a reduction in classification level and consequential change of duties. The Respondent says that the decision reflects a balance between acknowledging Mr Gibson's response, while upholding the standards expected of public sector employees, particularly those in leadership positions.

Consideration: cl 9.5(d)(xi)

  1. [71]
    I am satisfied that the decision-maker considered the likely impact the disciplinary action will have on public and customer confidence in the Health Service and its proportionality to the gravity of the disciplinary finding of misconduct.

Other matters raised in Mr Gibson's reasons for appeal – Failure to consider local management action

  1. [72]
    Mr Gibson says that the Disciplinary Action Decision was 'premature (and unreasonable) in circumstances where the Respondent'[23]:
  1. made the Disciplinary Finding Decision of misconduct in an official capacity (which is the highest end of the scale in terms of a disciplinary ground) despite:
  1. taking four (4) months to commence the disciplinary process;
  2. originally proposing two disciplinary grounds in the Show Cause Notice [Exhibit F to the Affidavit], being either misconduct or in the alternative, a sufficiently serious contravention of the relevant code of conduct;
  3. receipt of Exhibit G and I of the Affidavit which set out compelling factors of mitigation and support the lower disciplinary ground (if any);
  4. constant referencing of the Appellants [sic] conduct as constituting a breach of the relevant Code of Conduct [Attachment 1 to Exhibit F to the Affidavit];
  1. the Disciplinary Action Decision merely reiterates the disciplinary action proposed in the Disciplinary Finding Decision.[24]
  1. [73]
    Mr Gibson says that the Respondent did not 'duly consider local management action as a suitable alternative in circumstances where such action would have had a high probability of success in resolving the matter'[25] as he has no disciplinary history, is committed to the improvement of the behaviour; and he has an exceptional work history and career prospects.
  1. [74]
    Mr Gibson says that the Respondent is in contravention of cls 4.7–4.8 and 7.2 of the Discipline Directive and has 'failed to uphold the objectives of discipline'.[26]
  1. [75]
    I deal with the matter raised at [72](b) below at [107]–[116].
  1. [76]
    I deal with the matter raised at [72](a)(i) below at [84]–[91].
  1. [77]
    It seems to me that the matters set out at [72](a); (a)(ii); (a)(iii) and (a)(iv) relate to the decision to commence a disciplinary process and the disciplinary finding of misconduct. These are not matters I am considering in this appeal. Mr Gibson was informed of his appeal rights regarding the finding of misconduct and did not appeal that decision at that time. Further, Mr Gibson's submissions state that he is appealing only the disciplinary action decision of 1 February 2024.

Other matters raised in Mr Gibson's reasons for appeal – Directive cl 11 Periodic review of discipline process

  1. [78]
    Mr Gibson says that the Respondent became aware of the conduct in early to mid-February 2023 but did not place him on alternative duties or commenced a disciplinary process until 5 June 2023. Mr Gibson says that this is inconsistent with the alleged gravity of his conduct.
  1. [79]
    Mr Gibson says that the process took around 8 months to reach its conclusion. Mr Gibson notes that during that time he has been subject to alternative duties and continues to remain subject to those duties as a precursor to disciplinary action. Mr Gibson also states that the disciplinary process was not reviewed by an independent decision-maker at the six-month mark.
  1. [80]
    As a result of the above, Mr Gibson says that the Respondent has not conducted and finalised the disciplinary process in a timely manner pursuant to cls 4.10 and 11.2 of the Discipline Directive. Further, Mr Gibson says that the disciplinary process should have been reviewed in or around early December 2023 pursuant to cl 11.4 of the Discipline Directive and the disciplinary process should not have continued until the review had occurred pursuant to cl 11.6. Mr Gibson says 'those failings contravene the principles of procedural fairness'.[27]
  1. [81]
    With reference to the matters Mr Gibson raises regarding cl 11, which deals with a periodic review of the discipline process, the Respondent points to cl 11.1 which states:

This section applies to matters involving a public sector employee's work performance or personal conduct, other than corrupt conduct matters[28]

  1. [82]
    The Respondent confirms that the conduct by Mr Gibson was determined as corrupt conduct, and, accordingly, cl 11 of the Discipline Directive was not applicable in the circumstances.
  1. [83]
    I agree with the Respondent's submission that cl 11 is not applicable to the discipline process given the nature of the conduct.

Other matters raised by Mr Gibson in his reasons for appeal: Conduct of the Respondent – time taken for the disciplinary process

  1. [84]
    I refer to Mr Gibson's submissions about the length of time taken to complete the disciplinary process above at [76].
  1. [85]
    The Respondent concurs with the timeline asserted by Mr Gibson insofar as the process commenced on 30 May 2023 and was finalised with the disciplinary action decision on 2 February 2024, equating to a period of approximately eight-months.
  1. [86]
    The Respondent says that while the duration of the process seems extended, it was 'shaped by essential administrative steps, legal requirements, seasonal public sector shutdowns, and the thoroughness required for making well-informed discipline decisions'.[29] The Respondent notes that the timeframe was further prolonged by requests for extension made on behalf of Mr Gibson.
  1. [87]
    The Respondent says that after receiving Mr Gibson's detailed response, the time spent to reach a decision on the disciplinary finding was commensurate with the seriousness of the conduct in question.
  1. [88]
    Further, the Respondent says that the time required to consider Mr Gibson's response to the second show cause notice was 'crucial' for a detailed assessment of Mr Gibson's reply and determination of the appropriate disciplinary action. The Respondent also says that the decision-maker carefully evaluated job availability, Mr Gibson's qualifications, the organisation's needs and that this demanded due and thoughtful deliberation.
  1. [89]
    The Respondent submits that it adhered to procedural requirements, including the observance of a 21-day appeal period following the disciplinary finding decision. The Respondent also notes that the timing of the consideration of disciplinary actions coincided with the Queensland Government's mandatory shutdown over Christmas and New Year, inevitably extending the process.
  1. [90]
    The Respondent agrees with Mr Gibson's submission that he has remained in alternative duties pursuant to s 101(3) of the PS Act since 5 June 2023. The Respondent says that Mr Gibson has continued to be paid at his substantive classification and corresponding paypoint pending the enforcement of the disciplinary action.

Consideration: Time taken for the disciplinary process

  1. [91]
    I have reviewed all the material and submissions put before me. While it may feel, for all parties, that eight months is an extended time for a disciplinary process to be undertaken, I cannot find that there has been any lack of fairness nor can I find that the length of time taken to conclude the process makes the decision not fair or reasonable. It seems to me that Mr Gibson has been afforded procedural fairness throughout the process and that, when his legal representatives requested extensions of time, these were granted.[30] While Mr Gibson may not have found it ideal to be undertaking alternative duties during this period of time, I note that he has continued to be paid at his HP 6 classification and the alternative duties do not form part of the disciplinary action. It is important that time is taken to properly consider disciplinary matters, particularly when serious findings such as misconduct are under consideration and where decisions are being made about the disciplinary action to be imposed.

Other matters raised in Mr Gibson's reasons for appeal: the Respondent did not give consideration to his written submissions

  1. [92]
    The Respondent rejects Mr Gibson's assertion[31] that his submissions with regard to his explanations for his actions and the context surrounding his conduct were not considered.
  1. [93]
    The Respondent says that Mr Gibson's acknowledgement that he should have directed the employee to adhere to the correct intake and referral process suggests an oversight in ensuring proper processes were followed.
  1. [94]
    The Respondent says that Mr Gibson's argument that the employee's personal use of the equipment did not impact on its availability for public use implies a concerning lack of appreciation for ethical conduct and commitment to the public sector's system of government. The Respondent says that as a senior leader, it is critical for Mr Gibson to uphold the highest standards of ethical behaviour and to ensure that proper procedures are implemented to maintain public trust and the integrity of the public sector.
  1. [95]
    With regard to Mr Gibson's submission that any negative effects on public context and the reputation of the Health Service are speculative and not supported by evidence, the Respondent says that this suggests Mr Gibson did not initially acknowledge or foresee the broader implications of his actions on public trust and the integrity of the Health Service.
  1. [96]
    The Respondent says that Mr Gibson's initial failure to perceive the severity of his actions does not absolve his responsibility as a senior leader within the Health Service. The Respondent says that the PS Act and the Code of Conduct clearly delineate the obligations of public sector employees, particularly those in leadership positions, to exercise their authority appropriately and ensure the proper use of public resources.
  1. [97]
    The Respondent submits that the use of public resources for personal purposes, regardless of the time of their use, constitutes a misuse of those resources, and is contrary to the principles of integrity and accountability, which are foundational tenets of the public service. The Respondent says that the perception of misuse can be just as damaging as actual misuse, particularly in a public health context where trust is paramount.
  1. [98]
    The Respondent says that it notes Mr Gibson's expressions of remorse and his commitment to corrective action, but says that this does not negate the seriousness of the misconduct nor the breach of public trust and the expectations of Mr Gibson in his professional role. The Respondent maintains that, as required by the Discipline Directive, it has taken into account all relevant matters, including matters that could be seen as extenuating or mitigating.

Consideration: Respondent’s consideration of Mr Gibson's written submissions

  1. [99]
    It seems to me that the proper characterisation of this ground of appeal is not that the decision-maker did not consider Mr Gibson's written submissions, but that the Respondent, did consider the written submissions and determined that, despite the content of those submissions, the proposed disciplinary action should be implemented.
  1. [100]
    The decision-maker considered Mr Gibson's written responses and referred to them in the decision.[32] Further, it is clear that the Respondent has carefully considered Mr Gibson's submissions in this appeal, and has carefully responded to the matters raised therein, throughout the Respondent’s own submissions. Mr Gibson's ground of appeal that his submissions were not considered by the Respondent is unsubstantiated and cannot succeed.

Other matters in Mr Gibson's reasons for appeal: Suitability of a change in duties

  1. [101]
    Mr Gibson says that the change of duties is not suitable in circumstances where he has performed minimal clinical work for seven-years.[33] Regarding the alternative position of Allied Health Workforce Development Officer, Mr Gibson says that he has limited experience performing its principal duties as they are substantially dissimilar to his previous roles.[34] Mr Gibson says that irrespective of the reduction in classification and remuneration, the duties of the positions 'do not align with my career goals and prospects'.[35]
  1. [102]
    The Respondent notes that it has provided two options to Mr Gibson in relation to the type of role he might prefer at the HP 5 classification level. The Respondent says that as advised in correspondence to Mr Gibson in the letter dated 20 February 2024, the Health Service has provided reassurance to support Mr Gibson's transition to his new duties.[36] Mr Gibson has been informed that the Health Service will provide all necessary training and induction to support the transition into the role and that the Respondent will afford a reasonable timeframe for such transitions to occur.
  1. [103]
    The Respondent submits that the revised duties enable Mr Gibson to continue to make a positive contribution, albeit with diminished authority to mitigate future misconduct risks, while establishing a clear precedent for the Respondent's stance on misconduct.

Consideration: Suitability of a change in duties

  1. [104]
    I understand the potential difficulty faced by the Respondent in identifying roles for Mr Gibson to undertake at the level of HP 5 within his area of expertise in the Health Service. Two positions have been offered to Mr Gibson and the Respondent has recognised the need to support Mr Gibson to move into one of these positions.
  1. [105]
    Mr Gibson says that the positions identified do not align with his career goals and prospects. This may be so; however, Mr Gibson has been found guilty of misconduct and the Respondent has determined that it would not be appropriate for him to remain in his current HP 6 position. The employer is aware of Mr Gibson's qualifications and capacities and has identified two positions which are appropriate for him to undertake. The employer has flagged the need to support Mr Gibson to transition to one of these two positions and has indicated that it will provide a reasonable timeframe for that to occur.
  1. [106]
    While I note that the change of duties to the lower classification level may be challenging for Mr Gibson, I do not find that it is not fair or reasonable in the circumstances.

Other matters raised in Mr Gibson's reasons for appeal: that the decision simply reiterated the disciplinary action proposed in the second show cause notice without considering his submissions and suggestions regarding other disciplinary action which could have been taken

  1. [107]
    Mr Gibson says that other action which would not affect his remuneration, classification or duties could have been taken. Mr Gibson suggests a written reprimand, proactive refresher training in leadership or management, and/or some form of performance and development plan.[37]
  1. [108]
    Mr Gibson says that the Respondent failed to reasonably consider the counter-proposals he set out in his show cause response.[38]
  1. [109]
    The Respondent says the decision to implement the disciplinary action proposed in the second show cause notice is grounded in a comprehensive and deliberate consideration of all available information, including Mr Gibson's response. The Respondent says that the decision was not simply a repetition of this initially proposed disciplinary action, but was a result of a 'careful evaluation of the seriousness of the substantiated Allegation against the Appellant, his conduct in relation to the standards expected of a Health Service employee, his expressed remorse and the accountability he displayed for his actions’.[39]
  1. [110]
    The Respondent says that Mr Gibson's submission that the disciplinary action reduces his classification by two levels, is incorrect. The Respondent says that the disciplinary action is a single-level reduction within the structured classification system moving from HP Level 6 to HP Level 5. The Respondent says that Mr Gibson's impression that he has been dropped two levels appears to stem from a misunderstanding of the increments or paypoints within each level. The Respondent says that the increments within the same classification level may reflect seniority or additional qualifications, but they do not constitute separate classifications. The reduction from a paypoint of HP6.2 to a paypoint of HP5.2 remains within the bounds of a single-level reduction.[40]
  1. [111]
    The Respondent says that it considered the other disciplinary actions Mr Gibson suggested, including a reprimand, further training, monetary penalty and some form of performance plan. The Respondent says that none of the other actions suggested by Mr Gibson were deemed adequate in addressing the significant violation of professional and ethical norms exemplified by Mr Gibson's conduct. The Respondent notes that the decision-maker specifically refers to Mr Gibson's suggested alternative disciplinary actions in the letter dated 1 February 2024.
  1. [112]
    The Respondent submits that Mr Gibson's substantiated misconduct is a significant factor in assessing the appropriateness and necessity of disciplinary action. The Respondent says it 'seems reasonable to suggest that the only way for the Appellant to have avoided the consequences of his professional conduct would have been to not commit the serious breach of professional and ethical standard of his leadership role in the first instance'.[41]
  1. [113]
    The Respondent provides extensive submissions regarding Mr Gibson's suggestions of a reprimand and positive performance management in its submissions filed 10 May 2024. With regard to a reprimand, in summary, the Respondent submits that this disciplinary action would not reflect the seriousness of the misconduct or reflect the responsibilities and trust vested in Mr Gibson. The Respondent says a reprimand would be insufficient to remedy the potential harm to public trust and the reputation of the Health Service. Further, the Respondent says that a reprimand would not act as an effective deterrent against similar future behaviour by others.
  1. [114]
    With regard to positive performance management, the Respondent says that Mr Gibson's assertion that this option was overlooked is 'misplaced'.[42] The Respondent says that 'Directive 15/20 Positive Performance Management focuses on work performance issues and is not suitable for addressing allegations related to 'misconduct''.[43] The Respondent says that the discipline framework set out in the Discipline Directive was appropriate and correct as it is specifically designed to handle matters of this nature.

Consideration: Mr Gibson’s ground of appeal that the decision simply reiterated the disciplinary action proposed in the second show cause notice

  1. [115]
    I agree with the Respondent that the Discipline Directive provides the appropriate framework for matters where the alleged conduct may give rise to a serious disciplinary finding.
  1. [116]
    While the final disciplinary action to be imposed was that which was put forward in the second show cause notice, it is not the case that the submissions of the employee will always give rise to a reduction in the seriousness of the disciplinary action determined in the final decision. I am satisfied based on the material available to me that the decision-maker considered Mr Gibson's suggestions of less serious disciplinary action. That the decision-maker rejected those and determined to implement a reduction in classification and consequential change of duties does not serve to make that disciplinary action decision unfair or unreasonable.

Other matters raised by Mr Gibson in his reasons for appeal: The disciplinary proceedings have impacted on Mr Gibson's mental health

  1. [117]
    Mr Gibson says that the disciplinary proceedings have caused him considerable anguish in a professional and personal capacity and that he has sought counselling and ongoing medical treatment as a result.[44]
  1. [118]
    I understand that participating in a disciplinary process can be distressing and I accept Mr Gibson's submissions that the disciplinary proceedings have negatively impacted his mental health. However, there is no evidence that the Respondent's conduct has departed from the expectations set out in the Discipline Directive. I also note that each of the various correspondence Mr Gibson has received relating to the disciplinary matter has listed a Health Service contact person and has also highlighted the availability of the Employee Assistance Program.

Other matters set out in the Directive

  1. [119]
    I note that in compliance with cl 4.3 of the Discipline Directive, the decision-maker has given consideration to human rights when making the decision.[45]
  1. [120]
    With regard to cl 9.6(a), I accept the Respondent's submission that the decision-maker reviewed all relevant material, including submissions made by Mr Gibson when making a final review on disciplinary action to be taken. The Respondent says specifically, 'the decision details the matters considered, regard given to the seriousness of the conduct and the seniority of Mr Gibson's position'.[46]
  1. [121]
    With regard to cl 9.6(b), I accept the Respondent's submission that Mr Gibson was informed of the decision in writing, specified the reasons for the decision, referred to the information considered from Mr Gibson's show cause response and provided Mr Gibson with information about his appeal rights. The Respondent notes that the decision on penalty has not been implemented whilst Mr Gibson is exercising his right to appeal pursuant to cl 9.6(d).
  1. [122]
    Other submissions regarding various parts of the Discipline Directive have been dealt with elsewhere in these reasons where relevant.
  1. [123]
    I am satisfied that the decision-maker has complied with the Discipline Directive.

Conclusion

  1. [124]
    This public service appeal is conducted by way of a review of the decision appealed against. This appeal does not involve me considering the matter afresh. I am required, however, to consider the disciplinary action decision and determine whether it is fair and reasonable. It is only if I determine the decision is not fair and reasonable that I may set it aside and substitute a different decision or return the matter to the decision-maker.
  1. [125]
    I understand that Mr Gibson believes the disciplinary decision is 'inappropriate, harsh and disproportionate'.[47] The Respondent's position is that the conduct of the Appellant was a 'significant departure from the expected behaviour by a senior leader in the Health Service. The Appellant's conduct has caused a breach of trust of the Appellant in their role as a senior leader of the Health Service'.[48] In those circumstances, the Respondent submits that 'it is not unreasonable for the decision-maker to decide to implement a penalty, pursuant to section 92(1)(b) of the PSA, reduction of one classification level and consequential duties'.[49]
  1. [126]
    I have considered Mr Gibson's response to the second show cause notice and the matters raised regarding his long work history and contributions to cardiac services across the state, both in terms of his technical knowledge and leadership skills. I also note that, in his response, Mr Gibson recognises his clouded judgment and acknowledges that he failed to duly consider the matter in question due to his substantial workload. That show cause response says that Mr Gibson agrees that, with the benefit of hindsight, he should have asserted a greater degree of authority over the issue in question and is dedicated to the sustained correction of his conduct.[50] I am of the view that these matters were considered by the decision-maker and did not outweigh the serious nature of the conduct, particularly in light of Mr Gibson's seniority. It seems to me that the reduction in classification and subsequent change of duties arises from the decision-maker's concerns regarding trust and confidence in Mr Gibson's conduct in performing the position of Clinical Measurement Scientist Consultant Director following the substantiation of Allegation and the finding of misconduct. The disciplinary action decision also seems to be aimed to act as a deterrent to such conduct by Mr Gibson or others in the future.
  1. [127]
    While the decision has serious consequences for Mr Gibson, I am satisfied that a reduction of one classification level and a subsequent change of duties is a proportionate disciplinary action to the disciplinary finding of misconduct and the standard of conduct expected of Mr Gibson in his senior leadership position. The disciplinary action decision is fair and reasonable.

Order

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

Footnotes

[1]Respondent's Submissions filed 10 May 2024, Attachment B.

[2]Affidavit of Jason Gibson affirmed 28 February 2024, Exhibit J.

[3]Respondent's Submissions (n 1) Attachment F.

[4]Mr Gibson lodged his appeal on 23 February 2024. That his appeal was filed outside of the 21-day appeal period is not relevant to this decision and was dealt with in Gibson v State of Queensland (Queensland Health) (No. 1) [2024] QIRC 090.

[5]Appellant's Submissions filed 7 June 2024, [5].

[6]Cl 7.2.

[7]Cl 9.5(d)(i).

[8]Respondent's Submissions (n 1) Attachment B, 6.

[9]The relevant employee's name has been redacted from this decision to protect their privacy.

[10]Respondent's Submissions (n 1) Attachment B

[11]Ibid Attachment B, 4–6.

[12]Ibid Attachment D, 2–4.

[13]Cl 9.5(d)

[14]Appellant's Submissions (n 5) [13].

[15]Appellant's Submissions (n 5) [15].

[16]Ibid [12(a)].

[17]Respondent's Submissions (n 1) Attachment B, 2.

[18]Affidavit of Jason Gibson (n 2) [30].

[19]Code of Conduct for the Queensland Public Service.

[20]Appellant's Submissions (n 5) [12(c)].

[21]Appellant's Submissions (n 5) [24]–[25].

[22]Affidavit of Jason Gibson (n 2) [47]–[48].

[23]Appellant's Submissions (n 5) [16].

[24]Ibid [16].

[25]Ibid [17].

[26]Ibid [18].

[27]Ibid [22].

[28]cl 11.1

[29]Respondent's Submissions (n 1) [34].

[30]The extensions of time are referred to in various submissions but see Respondent’s submissions filed 14 June 2024 [6]–[8] and [17].

[31]Affidavit of Jason Gibson (n 2) [38]–[39].

[32]Page 2 of the decision letter summarises matters raised on Mr Gibson’s behalf in relation to the appropriateness of the proposed disciplinary action. The reasons for decision also include reference to Mr Gibson’s response on pages 2, 3 and 4.

[33]Affidavit of Jason Gibson (n 2) [35].

[34]Ibid [36].

[35]Respondent's Submissions (n 1) [13]; Affidavit of Jason Gibson (n 2) [37].

[36]Respondent's submissions filed 14 June 2024, Attachment B.

[37]Affidavit of Jason Gibson (n 2) [41].

[38]Appellant's Submissions (n 5) Show Cause Response, [27].

[39]Respondent's Submissions (n 1) [50].

[40]Ibid [54].

[41]Ibid [57].

[42]Ibid [63].

[43]Ibid [63].

[44]Affidavit of Jason Gibson (n 2) [49].

[45]Decision letter dated 1 February 2024, 4–5.

[46]Respondent's Submissions (n 36) [14(a)].

[47]Appellant's Submissions (n 5) 5.

[48]Respondent's Submissions (n 36) [19].

[49]Ibid [19].

[50]Appellant's Submissions (n 5) Show Cause Response, [24].

Close

Editorial Notes

  • Published Case Name:

    Gibson v State of Queensland (Queensland Health) (No. 2)

  • Shortened Case Name:

    Gibson v State of Queensland (Queensland Health) (No. 2)

  • MNC:

    [2024] QIRC 161

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    28 Jun 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
Gibson v State of Queensland (Queensland Health) [2024] QIRC 90
1 citation
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Cite 1 - [2024] QIRC 90

Cases Citing

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