May v State of Queensland (Queensland Health)
[2024] QIRC 176
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- Unreported Judgment
- May v State of Queensland (Queensland Health)[2024] QIRC 176
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May v State of Queensland (Queensland Health)[2024] QIRC 176
May v State of Queensland (Queensland Health)[2024] QIRC 176
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | May v State of Queensland (Queensland Health) [2024] QIRC 176 |
PARTIES: | May, Christopher Ross Appellant v State of Queensland (Queensland Health) Respondent |
CASE NO: | PSA/2024/49 |
PROCEEDING: | Appeal against a fair treatment decision |
DELIVERED ON: | 24 July 2024 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDER: |
|
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – FAIR TREATMENT DECISION – where appellant filed appeal as an appeal against a directive decision – where appellant raised grievances about the respondent's operations – where respondent reviewed grievances – where appellant sought internal review of the respondent's initial grievance review – where appellant said he had crucial information that was missing from the initial grievance review – where respondent internally reviewed the initial grievance review – where respondent, after reviewing the initial grievance review, referred grievance to a new decision-maker to be determine afresh and asked the appellant to provide the crucial missing information – consideration of sections 129, 130 and 133 of the Public Sector Act 2022 (Qld) – consideration of section 562C of the Industrial Relations Act 2016 (Qld) – where appellant submits that the appeal is needed to rectify injustices and address procedural flaws – where respondent submits that the appeal is misconceived as a directive decision – where respondent submits decision is not a decision at all – where, in the alternative, respondent submits that there is no utility in allowing the appeal to continue – where, in the further alternative, respondent submits that the decision was fair and reasonable – held that appeal is misconceived as concerning a directive decision when it concerns a fair treatment decision – held appellant had standing to bring fair treatment decision appeal – held that appellant's submission that the appeal is needed to rectify injustices and address procedural flaws is misconceived – held review confined to decision of respondent, after reviewing the initial grievance review, to refer grievance to a new decision-maker to be determined afresh and to ask the appellant to provide the crucial missing information – rejected respondent's submission that there is no decision at all or that, alternatively, there is no utility in allowing the appeal to continue – held decision fair and reasonable in the circumstances – held appellant failed to make out how policies and procedures not complied with – confirmed the decision appealed against. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562C Public Sector Act 2022 (Qld) s 129, 130, 133 |
CASES: | Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16 Goodall v State of Queensland [2018] QSC 319 Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480 Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97 Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326 Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1 Schubert v State of Queensland (Queensland Health) [2024] QIRC 128 State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3 Wirth v Mackay HHS & Anor [2016] QSC 39 |
Reasons for Decision
- [1]This is an appeal by Mr Christopher May ('Appellant') pursuant to ss 130 and 133 of the Public Sector Act 2022 ('PS Act'). The Appellant appeals a decision dated 23 February 2024 ('Decision') made by Ms Leena Singh, the Chief Executive of the Cairns and Hinterland Hospital Health Service ('Health Service'). The Decision resulted from an internal review of a decision dated 15 January 2024 by the Director of Infrastructure for the Health Service. That 15 January 2024 decision dealt with seven complaints made by the Appellant as part of a formal grievance he lodged about a year earlier on 24 January 2023 ('Grievance').
- [2]The Appellant puts forward four bases of appeal, which include the:
- a.inadequate handling of the Grievance in contravention of the Individual Employee Grievances HR Policy;
- b.inaction in relation to concerns raised by the Appellant, with that inaction being in breach of the pertinent policies;
- c.nonadherence to established policies and procedures, with the Appellant citing alleged mismanagement of the Grievance as a reflection of a broader pattern of nonconformance and nonadherence to key policies; and
- d.neglect of professional and ethical standards that are stated to be a cumulative effect of the abovementioned failures and that have been injurious to the Appellant professionally and personally.
- [3]The Appellant seeks orders that the Commission carry out a comprehensive review of the Grievance and how it has been handled in order to address and rectify the alleged failures in grievance handling, policy adherence and overall management of the Appellant's concerns. The Appellant states that the goal of this appeal is not only to seek redress for the personal and professional harm he has endured personally, but also to ensure that the Health Service adopts necessary reforms to prevent a recurrence of such failures in the future.
Background
- [4]The Appellant is employed as the Infrastructure Compliance Manager at the Health Service. Broadly speaking, the Grievance related to seven complaints which, summarily put, were that:
- a.there was a lack of confidentiality relating to entries made by the Appellant in the Respondent's Riskman safety data system, as well as suspicious subsequent edits of those Riskman entries;
- b.the acting Director of Infrastructure, Building Engineering Maintenance Services for the Health Service lied on multiple occasions;
- c.there was a mishandling of the Appellant's application to have his position subject to a Job Evaluation Management System ('JEMS') assessment;
- d.there were shortages of staff by way of a failure to backfill positions during periods of extended leave and that there was mismanagement of reporting lines within the relevant team;
- e.there were payment discrepancies whilst the Appellant was on WorkCover and that the Respondent breached the Appellant's confidentiality by uploading personal WorkCover information onto another staff member's HR account;
- f.there was a mishandling of the Appellant's request to amend his current flexible working arrangement; and
- g.there was a mishandling of the extent to which a particular course of study would be reimbursed pursuant to the Respondent's Study and Research Assistance Scheme.
- [5]As noted above, on 15 January 2024, Mr Cliff Pollock, the Director of Infrastructure for the Health Service, wrote to the Appellant with outcomes concerning the above-mentioned Grievance. Summarily put, he found that:
- a.as to the Riskman records complaint, some editing was found to have occurred but that such editing was appropriate because it comprised only entries in blank fields or updating of progress notes, with no finding of subsequent tampering with the Appellant's entries;
- b.the allegations of lying were to be put to one side because the person who was the subject of those allegations had moved on and was neither an employee of the Health Service nor of Queensland Health, and so there was deemed to be no risk of any repeated communications from that person;
- c.as to the complaint concerning the application for a JEMS evaluation, the handling of the application was appropriate, acknowledging the Appellant's frustration due to the length of time the process had taken;
- d.the Appellant's concerns regarding backfilling of positions and reporting lines were also to be put to one side because the Appellant was on leave at the time. However, that issue was slated for further discussion with the Appellant once he returned from leave;
- e.the payment "discrepancies" in WorkCover payments was explainable by reference to the fact that the rate of payment had reduced because of the length of time the Appellant had been receiving those benefits. The Respondent also sincerely apologised for the inadvertent uploading of personal information to another user's account, and noted that mistake had been corrected;
- f.the Appellant's request to amend his flexible work arrangement was granted, subject to the Appellant's return to the workplace; and
- g.the course of study in question was identified as being "desirable" pursuant to the relevant policy rather than "essential", explaining the lower level of reimbursement accordingly.
- [6]The Appellant sought an internal review of that 15 January 2024 decision. That internal review was carried out by Ms Singh and resulted in the Decision that is the subject of this appeal.
- [7]In the Decision, Ms Singh set out a history of the Grievance, including a summary of the above-mentioned findings. Ms Singh also summarised the complaints that the Appellant made about the 15 January 2024 decision by Mr Pollock.
- [8]Ms Singh then identified that the process of internal review required her to determine whether the earlier decision was fair and reasonable in the circumstances. Ms Singh identified a number of documents that had been considered, including:
- a.the Grievance Directive 11/20: Individual Employee Grievances;
- b.the Health Service's Individual employee grievances HR Policy E12;
- c.the Appellant's grievance dated 24 January 2023;
- d.the Director of Infrastructure for the Health Service's decision dated 15 January 2024; and
- e.the Appellant's email dated 5 February 2024.
- [9]Ms Singh then noted an allegation made by the Appellant in the letter requesting the internal review that questioned the accuracy of the relevant "Riskman edit histories" referred to in the Grievance outcome letter. Ms Singh also noted that the Appellant stated that he was in possession of "previously fully complete versions" of those Riskman edit histories.
- [10]Ms Singh then determined that the earlier 15 January 2024 decision was to be set aside and that the matter would be referred to a new decision maker to determine afresh. Ms Singh also invited the Appellant to provide copies of the relevant Riskman edit histories that he said he had in his possession as part of that fresh review process.
Relevant law
- [11]Section 129 of the PS Act says:
"fair treatment decision" means a decision a public sector employee believes is unfair and unreasonable.
- [12]Section 130 of the PS Act says:
A person may appeal against a decision if—
(a) an appeal may be made against the decision under section 131; and
(b) the person is entitled to appeal against the decision under section 133.
- [13]Section 133(d) of the PS Act says:
The following persons may appeal against the following decisions—…
…(d) for a fair treatment decision—a public sector employee aggrieved by the decision;
- [14]Subsections 562C(1)(a) and 562C(1)(c) of the IR Act say:
(1) In deciding a public service appeal, the commission may—
(a) confirm the decision appealed against; or
…
(c) 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.
- [15]Appeals pursuant to s 133 of the PS Act are by way of review, not a fresh hearing.[1] Pursuant to s 562B(3) of the Industrial Relations Act 2016 ('IR Act'), the purpose of these appeals is to decide whether the decision appealed against was fair and reasonable.
- [16]An established approach to determining whether the decision being appealed was fair and reasonable is to consider whether the conclusions reached by the decision-maker were open to be made. Where it is determined on appeal that the relevant decision-maker reached conclusions based on inferences that were open to be drawn, it is not the place of the Commission to disturb that on appeal. That is so even if it is not a decision that the member would have reached themselves.[2] Conversely, a decision will be prone to being overturned on appeal if it is determined that inferences were not open to be drawn by the decision-maker.[3]
- [17]What constitutes 'fair and reasonable' is a matter for the Commission to determine by having regard to the ordinary meaning of those words, as opposed to applying the legal standard of reasonableness in the sense of the lawfulness or legality of a decision.[4]
- [18]
Submissions
Appellant's submissions
- [19]The Appellant has put on little in the way of supporting submissions. What submissions the Appellant did put on did not squarely address any of the arguments raised in the Respondent's submissions. Rather, the Appellant maintained that the appeal was both valid and necessary to rectify the procedural and substantive injustices that the Appellant claims to have experienced.
- [20]The Appellant submits that the Commission should address procedural flaws allegedly carried out by the Respondent in the early stages of dealing with the Grievance, including the handling of his WorkCover claim. The Appellant submits that his dissatisfaction with the process underscores the need for a thorough review by the Commission by way of this appeal.
- [21]The Appellant also takes issue with being asked to provide the Riskman records that he states would prove his allegation of subsequent editing of those records. Rather than provide that proof, the Appellant submits that the Respondent should have provided its Riskman records to the Appellant.
Respondent's submissions
- [22]The Respondent submits that the appeal is misconceived, referring to s 131(1)(b) of the PS Act as not being the appropriate mechanism for the appeal. That is a reference to the Appellant's having ticked the box for appealing a "directive decision" in his Form 89 Appeal Notice. The Respondent submits that the Decision is more appropriately described as a "fair treatment decision", which is provided for within s 131(d) of the PS Act. I agree with that submission, although nothing turns on that.
- [23]The Respondent raises several alternative arguments as to why the appeal is without merit. First, the Respondent argues that the Decision is not a decision at all. Rather, it is simply an invitation for the Appellant to provide further information which the Appellant claims to have had in his possession.
- [24]Second, and in the alternative, the Respondent submits that if the Decision constitutes a valid decision which can be the subject of a fair treatment appeal under the PS Act, there is no utility in allowing the appeal to continue. The Respondent argues that no final decision has been made in respect of the Appellant's Grievance. Hence, any decision by the Commission to either confirm the Decision or set aside the Decision would be futile. That is because confirming the Decision would have the same effect as setting aside the 15 January 2024 decision, which is what the Decision does. Setting aside the Decision, the Respondent argues, would simply result in the Grievance being referred to a new decision-maker, which is also what the Decision has done. That argument does not, however, address the potential for the Commission to set aside the Decision and substitute it with its own decision.
- [25]Third, in the alternative again, the Respondent submits that if the Commission finds there to be a decision and accepts that there is utility to hearing the appeal, then the submission is that the Decision was fair and reasonable in circumstances where the Appellant:
- a.expressed dissatisfaction with the decision of the Director of Infrastructure for the Health Service dated 15 January 2024 in relation to the outcome of the Appellant's grievance, and sought an internal review;
- b.questioned the accuracy of the Riskman edit histories referred to in the decision of the Director of Infrastructure for the Health Service dated 15 January 2024 on the basis that the edit histories therein '…seem incomplete'; and
- c.claimed to have '… fully complete versions' of the Riskman edit histories.
- [26]The Respondent seeks that the appeal be dismissed on any of these bases.
Consideration
- [27]There are four grounds to this appeal, but each ground of appeal is really a differently worded version of the same dissatisfaction that the Appellant has had with the handling of the issues.
- [28]The Appellant's goal in this appeal is to effectively request the Commission carry out a fresh review of not only the complaints within the Grievance but the entire process of handling the Grievance. That could only, in theory, be possible in a case where:
- a.the decision being appealed was that which dealt with the complaints within the Grievance;
- b.the Commission found the decision to not be fair and reasonable; and
- c.rather than return the decision to the decision maker with guidance, the Commission decided to determine the matter itself, including the complaints within the Grievance.
- [29]However, the decision under review in this appeal is the internal review of that earlier decision dealing with the complaints that make up the Grievance. The Commission cannot review how the Grievance was dealt with at the first instance in this appeal, or the complaints within the Grievance. The issue before the Commission is confined to whether the decision by Ms Singh was fair and reasonable.
- [30]As to the Respondent's alternative arguments, the submission that the Decision is no decision at all must be rejected. The wording of the Decision ends any possible debate on the question - "I have decided to set aside Mr Pollock's decision dated 15 January 2024 and refer your grievance to a new decision-maker to determine afresh." On any reasonable assessment, that is a "decision". But that is not just because Ms Singh said she was deciding the review application by the Appellant. The fact that the Decision does not bring the Appellant's Grievance or his subsequent concerns to a final conclusion does not render it not a "decision" at all. This was no mere expression of opinion or a statement that had no effect on the Appellant. The Decision set aside the grievance outcome decision that the Appellant sought review of. It determined to start the process afresh, calling for further evidence to be presented. It delegated a fresh set of eyes to the carry out the new process. The Decision was clearly the result of a review of the earlier grievance outcome decision and was, by itself, an outcome of that review. On any reasonable assessment, it was a "decision".
- [31]I accept that the Appellant genuinely believes the Decision to be both unfair and unreasonable. I am satisfied that the Decision is captured by the definition of a fair treatment decision in s 129 of the PS Act.
- [32]I do not accept the Respondent's submissions that there is no practical utility to hearing the Appeal. If the Commission were to decide that it was not fair and reasonable for Ms Singh to either set aside the Grievance outcome decision, or start the process afresh with a new inquiry, or request the appellant to provide the Riskman records he claims he had, then the Commission could set the Decision aside and substitute it for another.
- [33]However, I accept the third alternative approach proposed by the Respondent – that the Commission assess whether the Decision was fair and reasonable. Specifically, the Commission is to determine whether it was fair and reasonable for Ms Singh to set aside the 15 January 2024 decision and refer it to a new decision-maker to determine afresh, while also inviting the Appellant to provide copies of the relevant Riskman histories.
- [34]When seeking review of Mr Pollock's 15 January 2024 decision, the Appellant alleged that the Respondent missed crucial information for investigation of the Grievance. The Appellant implied that if Mr Pollock had the true and full record of Riskman edit histories that the Appellant claimed to have, then the outcome would have been different. If that claim was taken seriously, which it was in my view, then it is entirely fair and reasonable to restart the process and call for the evidence mentioned by the Appellant. Ms Singh rightly set aside the 15 January 2024 decision, called for the evidence the Appellant claimed to have and reset the process assigning a fresh set of eyes to carry out the review.
- [35]Assigning the matter to a completely new person removes any chance of bias, or the perception of bias, in the resumed process. That part of the Decision was also fair and reasonable in the circumstances.
- [36]Furthermore, as noted above, the Appellant suggested that the Riskman records were incomplete and that Grievance outcome decision by Mr Pollock would be different if Mr Pollock had the complete history of Riskman records edit. In his request for an internal review, the Appellant said "I also have previously fully complete versions [of Riskman edit histories] before I was locked out of the system". The circumstances were that the Appellant claimed to have the record and that it proved the earlier decision he was seeking review of was infected with error by failing to consider that record. It was fair and reasonable in my opinion for Ms Singh to seek that record as part of the fresh review.
- [37]The Appellant alleges that a number of policies and procedures have generally not been complied with. However, the Appellant fails to identify how the Decision is at odds with any relevant procedure or policy. On my review, the Decision is not inconsistent with the pertinent policies, and nothing in those documents prevents the Respondent from deciding to deal with a matter in the way it has done on this occasion.
- [38]I conclude that the Appellant has standing to bring this appeal as a fair treatment decision appeal and I have proceeded on that basis. I also conclude that the Appellant has misunderstood the nature of these proceedings. The role of the Commission is simply to assess the Decision as to whether it was fair and reasonable in the circumstances. I conclude that the Decision was fair and reasonable in all the circumstances. I order that the Decision is confirmed.
- The Decision is confirmed
Conclusion
Order
Footnotes
[1] Goodall v State of Queensland [2018] QSC 319, 5, cited by Dwyer IC in Hardy v State of Queensland (Department of Environment and Science) [2022] QIRC 480, [7].
[2] State of Queensland (Queensland Health) v Hume (No. 3) [2024] ICQ 3, [38]; Schubert v State of Queensland (Queensland Health) [2024] QIRC 128, [8].
[3] Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97, [155]; Brandis v State of Queensland (Gold Coast Hospital and Health Service) [2024] QIRC 158 [48]-[49]
[4] Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16, [20]-[25].
[5] Hunt v State of Queensland (Department of Agriculture and Fisheries) [2022] QIRC 162 ('Hunt'), [82]-[83], [85], citing Minister for Immigration and Border Protection v WZARH [2015] (2015) 256 CLR 326, [34]-[36], ; Re Minister for Immigration and Multicultural and Indigenous Affairs; ex parte Lam (2003) 214 CLR 1, [57], [61].
[6] Hunt (n 5) [79], citing Wirth v Mackay HHS & Anor [2016] QSC 39.