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  4. Garanovic v State of Queensland (Queensland Health) - [2024] QIRC 204

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Garanovic v State of Queensland (Queensland Health)[2024] QIRC 204

Garanovic v State of Queensland (Queensland Health)[2024] QIRC 204

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Garanovic v State of Queensland (Queensland Health) [2024] QIRC 204

PARTIES:

Garanovic, Nedzad

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/195

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

21 August 2024

MEMBER:

McLennan IC

HEARD AT:

On the papers

ORDERS:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – disciplinary decision – where conduct allegations substantiated – where disciplinary action imposed – whether disciplinary action decision was fair and reasonable – whether disciplinary action was appropriate and proportionate

LEGISLATION & OTHER INSTRUMENTS:

Industrial Relations Act 2016 (Qld) s 451, s 562B, s 562C, s 564, s 567

Public Sector Act 2022 (Qld) s 3, s 4, s 91, s 92, s 93, s 100, s 129, s 131

Directive 05/23: Discipline cl 7, cl 8, cl 9, cl 13

CASES:

Ant Projects Pty Ltd v Brooks & Ors [2019] QCA 259

Gilmour v Waddell & Ors [2019] QSC 170

Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 081

Johnson v Gore Wood and Co [2002] 2 AC 1

Minister for Immigration and Citizenship v Li (2013) 249 CLR 332

Rogers v The Queen (1994) 181 CLR 251

Reasons for Decision

  1. [1]
    Mr Nedzad Garanovic (the Appellant) is an experienced Clinical Nurse, employed by the Gold Coast Hospital and Health Service.

Background

  1. [2]
    Mr Garanovic was subject to a Performance Improvement Plan (PIP). 
  1. [3]
    A disciplinary process ensued.  Mr Garanovic was asked to respond to the following allegation against him:

You failed to meet the agreed performance objectives of your Performance Improvement Plan when you did not demonstrate improved advanced communication skills and provide consistent clinical leadership to ensure comprehensive and safe patient care as required by a Clinical Nurse.[1]

  1. [4]
    The allegation was strenuously denied by Mr Garanovic. 
  1. [5]
    Mr Grant Brown (the Delegate) found the allegation to be 'substantiated' and informed Mr Garanovic that he "may be guilty of misconduct".
  1. [6]
    Mr Garanovic appealed against the disciplinary finding decision.
  1. [7]
    Industrial Commissioner Pidgeon heard that appeal, she ordered that:[2]
  1. 1.
    The finding that Allegation one is substantiated is confirmed.
  1. 2.
    The finding of misconduct is set aside and substituted with a finding per s 91(1)(a) of the Public Sector Act 2022 (Qld).
  1. [8]
    Mr Garanovic did not appeal Industrial Commissioner Pidgeon's decision.
  1. [9]
    Following Industrial Commissioner Pidgeon's decision, the Delegate issued correspondence to Mr Garanovic consistent with her orders.[3]  That is, that the grounds for discipline for the substantiated allegation was now "engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently".[4] 
  1. [10]
    In that correspondence, the Delegate invited Mr Garanovic to show cause why the following proposed disciplinary action decision should not be imposed:
  • A reprimand.
  • A reduction in classification level and consequential change of duties to that of a Registered Nurse (RN), grade 5, pay point 7.[5]
  1. [11]
    Further, the Delegate advised Mr Garanovic that "If you disagree with the proposed disciplinary action, you have the opportunity to provide an alternative disciplinary action and reasons why you consider that disciplinary action is more appropriate."[6]  The factors that would inform the Delegate's final determination of the disciplinary action were clearly set out.  I note those factors are consistent with those contained in the Discipline Directive.[7]
  1. [12]
    Mr Garanovic responded on 20 July 2023, though that was still focused on challenging the substantiation of the allegation. 
  1. [13]
    The Delegate then proceeded to issue the disciplinary action decision to Mr Garanovic, in correspondence dated 7 September 2023.[8]  That was the disciplinary action earlier proposed – a reprimand and a reduction in classification level and consequential change of duties.[9]
  1. [14]
    On 18 September 2023, Mr Garanovic wrote to GCHHS in response to the disciplinary action decision, asking to "finish this 2023 year as CN" and that:
  1. 1 – you decision to be effective from 1 January 2024
  1. Only because of my "financial" issues that already start to exist.
  1. 2 – My Long service leave to be paid out as CN Long service leave. (Financial issues)

Appeal Notice

  1. [15]
    Mr Garanovic filed this appeal on 2 October 2023.
  1. [16]
    The Appeal Notice states that the decision Mr Garanovic appeals against was given to him on 13 September 2023.  That is, the Delegate's correspondence dated 7 September 2023 conveying the disciplinary action decision. 

Appeal Principles

  1. [17]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (IR Act) provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[10]  This is the key issue for my determination.  Subsection (4) provides that for an appeal against a disciplinary decision, the commission:
  1. (a)
    must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. (b)
    may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [18]
    A public service appeal under the IR Act is not by way of rehearing,[11] but involves a review of the decision arrived at and the decision–making process associated therewith. 
  1. [19]
    Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.  Even so, in reviewing the decision appealed against, the QIRC member may allow other evidence to be taken into account.[12]
  1. [20]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

Jurisdiction

  1. [21]
    Section 131 of the Public Sector Act 2022 (Qld) (PS Act) identifies the categories of decisions against which an appeal may be made. Section 131(1)(c) of the PS Act provides that an appeal may be made against "a disciplinary decision".  Where a disciplinary decision is defined to be:
  1. … a decision under a disciplinary law to discipline –
  1. (a)
    a person (other than by termination of employment), including the action taken in disciplining the person.[13]
  1. …
  1. [22]
    Mr Garanovic has been an employee of the Respondent at all times relevant to this appeal.
  1. [23]
    I am satisfied that the Disciplinary Action Decision can be appealed. 

Timeframe to Appeal

  1. [24]
    Section 564(3)(d) of the Industrial Relations Act 2016 (Qld) (the IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.
  1. [25]
    I am satisfied that the Appeal Notice, as it pertains to the Disciplinary Action Decision only, was filed by Mr Garanovic within the required timeframe of 21 days.

Appeal Grounds

  1. [26]
    As best I can make out, Mr Garanovic's grounds of appeal appear to include that he:[14]
  • challenges the legitimacy of the PIP process;
  • disputes the earlier disciplinary finding decision to substantiate the allegation against him;
  • accuses staff of falsifying information and fabricating evidence; and
  • asks the Commission to "order full investigation in my case."
  1. [27]
    In the last page of the attachments to the Appeal Notice filed, Mr Garanovic submitted, under the heading "My conclusions regarding the proposed disciplinary action currently under consideration" that:
  • He is "a 62 year old Nurse with extensive experience of over a period of 40 years in nursing across Yugoslavia, Germany and Australia."
  • He was wrongly accused by a colleague, with respect to a COVID patient incident.
  • Incidents were fabricated.
  • False information was provided.
  • QH Policy relevant to an incident relevant to the PIP.
  1. [28]
    Mr Garanovic concluded that document with the following statement:
  1. Above are only few wrong – False information given to HR Team and QICR.
  1. Please investigate only this situation for now and then make your decision regarding correct information – not False one.
  1. Please provide righttime, date of incident written in my original PIP.  IF you disagree with my dates x 2
  1. [29]
    It appears that Mr Garanovic's central argument is that the Disciplinary Action Decision is not "appropriate and proportionate" because the allegation should not have been found to be substantiated in the first place.
  1. [30]
    It appears that Mr Garanovic has filed this appeal against both the Disciplinary Finding Decision and the Disciplinary Action Decision.

Appeal against the Disciplinary Finding Decision will not be heard

  1. [31]
    For the reasons that follow, I do not accept Mr Garanovic's apparent attempt to again appeal against the Disciplinary Action Decision. 
  1. [32]
    The Disciplinary Finding Decision was given to Mr Garanovic on 24 January 2022.  Mr Garanovic has already appealed that decision to the QIRC.  Industrial Commissioner Pidgeon decided the matter and Mr Garanovic did not appeal her Decision.  Mr Garanovic cannot now attempt to have the decision to substantiate the allegation reheard.  That avenue is closed. 
  1. [33]
    As I observed in Hennessy v Gold Coast Hospital and Health Service:[15]
  1. The concept of finality in proceedings is that once a matter has been determined, it should not be re-determined outside of an appeal … Instances where parties seek to subvert the principle of finality by re-filing matters under different matter types may be characterised as an abuse of process.
  1. …
  1. [42]
    In Johnson v Gore Wood and Co, Lord Bingham said:
  1. The underlying public interest is the same: that there should be finality in litigation and that a party should not be twice vexed in the same matter. This public interest is reinforced by the current emphasis on efficiency and economy in the conduct of litigation, in the interests of the parties and the public as a whole.
  1. [43]
    In Ant Projects Pty Ltd v Brooks & Ors, His Honour Justice of Appeal Morrison provided (emphasis added, citations omitted):
  1. It is a fundamental tenet of the judicial system that controversies, once resolved, are not to be reopened except in a few narrowly defined circumstances. It applies to civil cases and in the context where issues have been litigated but one party later wished to have a chance to litigate another issue. In the civil context the principle is that there should be finality in litigation and a party should not be twice vexed in the same matter.
  1. [44]
    In Rogers v The Queen it was said that:
  1. From earliest times, the principle embodied in the maxim res judicata pro veritate accipitur has been seen as necessary to protect against 'the scandal of conflicting decisions'. Issue estoppel and res judicata or cause of action estoppel are mechanisms which protect against conflict of that kind.

What decisions can the Industrial Commissioner make?

  1. [34]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  • confirm the decision appealed against; or
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [35]
    The parties filed written submissions in accordance with the Directions Order issued on 9 October 2023.
  1. [36]
    I have carefully considered all submissions and materials.  I have determined not to approach the writing of this decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' key positions in my consideration of each question to be decided.
  1. Relevant provisions of the PS Act
  1. [37]
    Section 3 of the PS Act provides:
  1. 3
    Main purposes of Act
  1. The main purpose of this Act is to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.
  1. [38]
    Section 4 of the PS Act provides:
  1. 4
    How main purpose is primarily achieved
  1. The main purpose of this Act is to be achieved primarily by —
  1. …
  1. (c)
    creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
  1. (i)
    providing for the key rights, obligations and employment arrangements of public sector employees; and
  1. (ii)
    maximising employment security and permanency of employment; and
  1. (iii)
    taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
  1. (iv)
    ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
  1. (v)
    ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
  1. (vi)
    setting a positive performance management framework for public sector employees; and
  1. (vii)
    fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and
  1. …
  1. [39]
    Section 91 of the PS Act relevantly provides as follows:
  1. (1)
    A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. (a)
    engaged in repeated unsatisfactory performance or serious underperformance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently;
  1. …
  1. [40]
    Section 92 of the PS Act relevantly provides:
  1. 92
    Meaning of disciplinary action
  1. (1)
    Disciplinary action is any action relating to employment, including, for example, any of the following actions –
  1. (a)
    termination of employment;
  1. (b)
    reduction of classification level and a consequential change of duties;
  1. (c)
    transfer or redeployment;
  1. (d)
    forfeiture or deferment of a remuneration increment or increase;
  1. (e)
    reduction of remuneration level;
  1. (f)
    imposition of a monetary penalty;
  1. (g)
    if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;
  1. (h)
    a reprimand.
  1. Relevant provisions of the Directive
  1. [41]
    Discipline (Directive 05/23) relevantly provides (emphasis added):
  1. 7.
    Requirements to commence a discipline process
  1. …
  1. 7.2
    Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:
  1. a.
    the seriousness of the employee's personal conduct and/or work performance, and
  1. b.
    whether the matter should be resolved through management action instead, and
  1. c.
    whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and
  1. d.
    whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and
  1. e.
    whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and
  1. f.
    if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and
  1. g.
    whether further information is required to make a decision to commence a disciplinary process, and
  1. h.
    for a breach of relevant standard of conduct under section 91(1)(h) , that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.
  1. …
  1. 9.
    Discipline process
  1. …
  1. 9.5
    Show cause process for proposed disciplinary action
  1. a.
    the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)
  1. b.
    the chief executive may propose more than one type of disciplinary action, and if relevant, detail any management action to be implemented
  1. c.
    the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act
  1. d.
    in proposing appropriate and proportionate disciplinary action, the chief executive should consider:
  1. i.
    the seriousness of the disciplinary finding
  1. ii.
    the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
  1. iii.
    whether extenuating or mitigating circumstances applied to the employee’s actions
  1. iv.
    the employee’s overall work record including previous management interventions and/or disciplinary proceedings
  1. v.
    the employee’s explanation (if any)
  1. vi.
    the degree of risk to the health and safety of employees, customers and members of the public
  1. vii.
    the impact on the employee’s ability to perform the duties of their position
  1. viii.
    the employee’s potential for modified behaviour in the work unit or elsewhere
  1. ix.
    the impact a financial penalty may have on the employee
  1. x.
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. 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. e.
    a show cause notice on disciplinary action must only state the employee is liable for termination of employment if the chief executive reasonably believes that the employee might, in the circumstances, have their employment terminated
  1. f.
    the chief executive must provide the employee with a minimum of seven days from the date of receipt of a show cause notice on disciplinary action to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary action if there are reasonable grounds for extension.
  1. g.
    if the employee does not respond to a show cause notice on disciplinary action or does not respond within the nominated timeframe in clause 9.5(f) and has not been granted an extension of time to respond, the chief executive may make a decision on disciplinary action based on the information available to them.
  1. 9.6
    Decision on disciplinary action:
  1. a.
    the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken
  1. b.
    the chief executive must inform the employee of the decision in writing, including:
  1. i.
    the reasons for the decision, including consideration of any information provided by the employee in response to a show cause notice
  1. ii.
    information that the employee may appeal the decision on disciplinary action (except for a termination decision)
  1. iii.
    for a termination decision, information that the employee may lodge an application for reinstatement under the IR Act
  1. c.
    the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:
  1. i.
    the revised disciplinary action is objectively less onerous than the original action proposed, or
  1. ii.
    the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or
  1. iii.
    the employee has suggested the disciplinary action as an appropriate alternative penalty
  1. d.
    disciplinary action (other than a termination decision) is not to be implemented until the period for an appeal against the decision to discipline the public sector employee has expired, or any appeal lodged is finalised.
  1. …
  1. 13.
    Appeals
  1. 13.1
    A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act.

Question to be Decided

  1. [42]
    For the reasons explained above,[16] this Decision is confined to whether the Disciplinary Action Decision contained in the Delegate's correspondence dated 7 September 2023 was fair and reasonable.
  1. [43]
    Relevant too is whether the process afforded Mr Garanovic procedural fairness.
  1. Summary of Findings
  1. [44]
    For the reasons explained below:
  1. 1.
    I find that the Delegate' disciplinary action decision was appropriate and proportionate to the substantiated allegation.  The decision was fair and reasonable.
  1. 2.
    I am satisfied that the process undertaken afforded Mr Garanovic procedural fairness.
  1. [45]
    I have detailed my consideration of each of these elements below.

Consideration - Disciplinary Action Decision

Was the Delegate's disciplinary action decision fair and reasonable?

  1. [46]
    The Delegate decided to impose the disciplinary action of:
  • A reprimand.
  • A reduction in classification level and consequential change of duties to that of a Registered Nurse (RN), grade 5, pay point 7.[17]
  1. [47]
    Clause 7.2 of the Discipline Directive is relevant in determining whether conduct is sufficiently serious to warrant commencement of a disciplinary process. The Delegate determined that disciplinary grounds were established[18] and went on to consider that disciplinary action should be proposed.[19] 
  1. [48]
    Clause 9.5 of the Directive outlines the considerations when "proposing appropriate and proportionate disciplinary action".  I note those factors were reproduced in the Delegate's correspondence dated 20 June 2023, to provide some guidance to Mr Garanovic in preparing his show cause response.
  1. [49]
    The Delegate decided to discipline Mr Garanovic because he was satisfied that the substantiated allegation was sufficiently serious to warrant disciplinary action[20]. 
  1. [50]
    Further, s 93(1) of the PS Act provides that (emphasis added):

In disciplining a public service employee, the employee's chief executive may take the disciplinary action, or order the disciplinary action be taken, against the employee that the chief executive considers reasonable in the circumstances.

  1. [51]
    The seriousness of the allegation is one of a few relevant considerations to determine whether to commence a disciplinary process pursuant to the Directive.[21]
  1. [52]
    I will now proceed to consider whether the disciplinary action was "reasonable in the circumstances". 
  1. [53]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[22]

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

The pluarity in Li said:

… when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful …

… there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker …

… it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object … The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

… Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification.

  1. [54]
    Clause 9.5(d) of the Directive contains the factors to be considered in "proposing appropriate and proportionate disciplinary action."  Those factors are as follows:
  1. (i)
    the seriousness of the disciplinary finding
  1. (ii)
    the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. (iii)
    whether extenuating or mitigating circumstances applied to the employee's actions
  1. (iv)
    the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. (v)
    the employee's explanation (if any)
  1. (vi)
    the degree of risk to the health and safety of employees, customers and members of the public
  1. (vii)
    the impact on the employee's ability to perform the duties of their position
  1. (viii)
    the employee's potential for modified behaviour in the work unit or elsewhere
  1. (ix)
    the impact a financial penalty may have on the employee
  1. (x)
    the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. (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. [55]
    While Mr Garanovic initially appeared to accept the Disciplinary Action Decision in his correspondence to GCHHS and QNMU dated 18 September 2023, he clearly resiled from that position at the point of filing this appeal. 
  1. [56]
    However, this Decision is concerned with the show cause response Mr Garanovic made to the Delegate's correspondence proposing the disciplinary action.  That is, the arguments he put to the Delegate before the final decision on disciplinary action was made. 
  1. [57]
    As the Delegate has reasonably observed,[23] Mr Garanovic's response[24] "failed to show cause why the above proposed disciplinary actions should not be imposed, but rather refuted the outcome of your Performance Improvement Plan (PIP) and reinforced your belief the information was inaccurate, falsified and outside the review period.  Subsequently, you disregarded the substantiated allegation, which was confirmed by order of Industrial Commissioner (IC) Pidgeon and chose not to propose an alternate disciplinary action but rather requested I investigate your concerns further."[25]  In doing so, Mr Garanovic has entirely denied the reality of the disciplinary process stage at that point, despite what was required of him being clearly explained by the Delegate in his previous correspondence.  Mr Garanovic's continued resistance to the confirmed substantiation of the allegation against him (the Disciplinary Finding Decision) has caused him to lose the opportunity afforded to him to suggest a lesser disciplinary penalty. 
  1. [58]
    I concur with the Delegate's conclusion that "In the absence of any submission regarding the proposed disciplinary action, there is nothing in the material available to adjust my position on the proposed penalty reflected in the letters dated 24 January 2023 and 20 June 2023."[26]  That is correct.  Consistent with cl 9.5 of the Discipline Directive, the Delegate's correspondence made clear that he had given consideration to the factors that informed the proposal of "appropriate and proportionate disciplinary action" – it was incumbent upon Mr Garanovic to persuade the Delegate otherwise.  In the absence of providing any relevant submissions to the Delegate, there could be no other outcome that Mr Garanovic could reasonably expect.
  1. [59]
    The Delegate provided a clear and cogent explanation of his Disciplinary Action Decision to Mr Garanovic in the following terms:

…

I am deeply concerned you continue to refute the outcome of the PIP and disregard the concerns raised by your colleagues.  This behaviour suggests you do not recognise the deficit in your clinical practice and the impact your conduct has in the workplace.  This submission of superfluous documentation at this stage of the process is also troubling, as it fails to address the core issues at hand, while also discounting the extensive local level intervention which has been undertaken, prior to the commencement of this discipline process, in which your leadership team have sought to resolve these concerns in a collaborative manner.

As you are aware, Clinical Nurses are advanced level clinicians that are accountable for the delivery of safe clinical practise and professional advice.   In your position as a Clinical Nurse within Rehabilitation Services, it is essential that you demonstrate strong clinical leadership and maintain advanced communication skills.  Through the PIP process, the Health Service has reinforced these expected behaviours and shared feedback of concerns raised by various team members including subordinates, peers, leadership and management.  You have been granted extended opportunities to demonstrate your competence, as reflected in the repeated extensions of your PIPs.  Across two separate facilities, under different leadership, we have provided support, regular feedback and coaching to assist with adjusting your behaviours to the required standard.  However, you have failed to demonstrate the maintenance of corrective behaviours to ensure you work to the full scope of your Clinical Nursing position.

I acknowledge your extensive nursing experience over the past 40 years.  However, this escalates my concerns regarding your repeated failure to maintain your performance to an acceptable level.  Your lack of ownership in this process paired with your limited critical self-reflection is an unacceptable safety risk.  I do not believe further management action or intervention would result in a sustained improvement in practice.

…

  1. [60]
    With reference to the various factors informing the "appropriate and proportionate disciplinary action" contained in the Directive,[27] I note the Delegate's reasoning includes precise consideration of:
  • seriousness of the disciplinary finding (that is, an "unacceptable safety risk");
  • classification level and expected level of awareness (that is, 40 years nursing experience and currently an "advanced level clinician");
  • extensive previous management interventions, as outlined;
  • no explanation for the poor performance was provided by Mr Garanovic, but instead a continual denial that any problem existed; and
  • degree of risk.
  1. [61]
    As earlier noted, Mr Garanovic was given the opportunity to make submissions about the impact of a financial penalty.  He did not do so until after the decision was made.  Even then, no context or detail about his claim was provided.[28]
  1. [62]
    On that point, I note that a reprimand is a form of disciplinary action that does not itself affect an employee's remuneration, classification level or duties. Although (any further) reprimand will certainly be marked against Mr Garanovic's name - and may be a factor in the consideration of any future disciplinary processes initiated against him.  In light of the nature of the substantiated allegation, and the efforts of GCHHS to provide such remedial support, I agree that the imposition of a reprimand only is not sufficient to deter similar behaviours in the future.
  1. [63]
    The Delegate has been rightly circumspect as to Mr Garanovic's potential to modify his behaviour through a reprimand alone, in circumstances where he denies wrongdoing, disregards colleagues' concerns, and has engaged in very "limited critical self-reflection".  I concur with the Delegate's assessment that Mr Garanovic's failure to recognise these deficiencies is persuasive of a need for a disciplinary action to deter future behaviour of a similar kind and to aid in the potential for modified behaviour.  Something more is warranted here.
  1. [64]
    Due to his length of service in the nursing profession, and the fact that he is currently a Clinical Nurse "advanced level clinician", Mr Garanovic's expected level of awareness are relevant considerations that support the imposition of disciplinary action - beyond simply a reprimand.
  1. [65]
    The Directive prescribes that the Delegate must also consider the degree of risk to the health and safety of employees, customers and members of the public in determining an appropriate disciplinary action.  That further supports the imposition of a disciplinary action beyond a reprimand.
  1. [66]
    In consideration of all the circumstances of this matter, I believe the Delegate's determination of the appropriate disciplinary action was "appropriate and proportionate". 
  1. [67]
    I find that the Delegate's Disciplinary Action Decision was fair and reasonable.

Consideration - Disciplinary Process

  1. Did the process afford the Appellant procedural fairness?
  1. [68]
    Consistent with cl 9.5 of the Directive, the Delegate's show cause correspondence[29] set out the proposed disciplinary action for Mr Garanovic's response.  The Delegate stated that those reply submissions, together with the factors extracted from the Directive, would inform his "final determination of the disciplinary action" to be taken.  I note the list included in the Delegate's correspondence aligns with the factors contained in cl 9.5(d) of the Directive.  Detailing for Mr Garanovic's information the elements that would inform the Delegate's decision on the appropriate disciplinary action gives him the best opportunity to include all relevant arguments to support his case, and is thus a fair and reasonable approach to take.
  1. [69]
    I note that while the Directive provides that the minimum timeframe for a response to be required is 7 days (and that the Delegate's correspondence required the response in that time), Mr Garanovic's response was ultimately provided a month later.  Once again, it appears an extension to provide the Appellant's response was sought and granted.  That was a fair-minded approach for the Delegate to take.
  1. [70]
    On 20 July 2023, Mr Garanovic provided a response to the Second Show Cause Notice, though that did not substantively address the matter of the proposed disciplinary action.  That was a fatal flaw because Mr Garanovic failed to grasp the opportunity provided to make submissions to the Delegate, that may have resulted in a reduced financial penalty.
  1. [71]
    On 13 September 2023, the Delegate issued the Disciplinary Action Decision.
  1. [72]
    Notably, cl 9.6(a) requires the Delegate to "review all relevant material, including any submissions from the employee in response to a show cause notice …"  I note the Delegate's correspondence set out that the information provided by Mr Garanovic on 20 July 2023 was considered, though did not address the matter at hand because:

… you failed to show cause why the above proposed disciplinary actions should not be imposed, but rather refuted the outcome of your Performance Improvement Plan (PIP) and reinforced your belief the information was inaccurate, falsified and outside of the review period.

  1. [73]
    Further, cl 9.6(b) requires the Delegate's written decision to include "reasons for the decision, including consideration of any information provided by the employee in response".  As I have noted earlier in this Decision, the Delegate has discharged this mandatory requirement to a very high standard.  The correspondence details clear and logical consideration of the various factors guiding "appropriate and proportionate disciplinary action" as set out in the Directive at cl 9.5(d), as applied to the circumstances of this case. 
  1. [74]
    As required by the Directive at cl 9.6(b), the Delegate's correspondence also contained information about appeal rights.
  1. [75]
    For the reasons explained above, I am satisfied that the process undertaken was in accordance with the legislation, Directives and in all respects afforded procedural fairness to Mr Garanovic. 
  1. [76]
    The Delegate paid careful attention to all requirements.  I find that the process undertaken was fair and reasonable.

Conclusion

  1. [77]
    Mr Garanovic sought to appeal against both the Disciplinary Finding Decision and the Disciplinary Action Decision. 
  1. [78]
    The former matter has already been subject of a decision of this Commission.  That was not appealed.  The Disciplinary Finding Decision remains undisturbed.
  1. [79]
    Given the substantiated allegation against Mr Garanovic and the grounds for discipline, as previously decided by this Commission, I have proceeded only to consider whether the Disciplinary Action Decision was fair and reasonable.  For the reasons above, I find that the Disciplinary Action Decision is fair and reasonable.
  1. [80]
    I also confirm that the process undertaken in arriving at the Delegate's decision was procedurally fair.
  1. [81]
    I order accordingly.

Orders:

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

Footnotes

[1] Appeal Notice filed 2 October 2023, Attachment 1, 1.

[2] Garanovic v State of Queensland (Queensland Health) [2023] QIRC 129.

[3] 20 June 2023.

[4] Public Sector Act 2022 (Qld) s 91(1)(a).

[5] 20 June 2023.

[6] 20 June 2023.

[7] Directive 05/23: Discipline cl 9.5(d).

[8] Received by Mr Garanovic on 13 September 2023.

[9] See [10] of this Decision.

[10] Industrial Relations Act 2016 (Qld) s 562B(3).

[11] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[12] Industrial Relations Act 2016 (Qld) s 567(2).

[13] Public Sector Act 2022 (Qld) s 129.

[14] Appeal Notice filed on 2 October 2023.

[15] [2020] QIRC 081, citing Johnson v Gore Wood and Co [2002] 2 AC 1, 31; Ant Projects Pty Ltd v Brooks & Ors [2019] QCA 259; Rogers v The Queen (1994) 181 CLR 251.

[16] [31]-[33] of this Decision.

[17] 7 September 2023.

[18] Public Sector Act 2022 (Qld) s 91.

[19] Ibid ss 92-93.

[20] Ibid s 100.

[21] Directive 05/23: Discipline cl 7.2.

[22] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[23] Correspondence dated 7 September 2023.

[24] 20 July 2023.

[25] Correspondence dated 7 September 2023.

[26] Ibid.

[27] Directive 05/23: Discipline cl 9.5(d).

[28] 18 September 2023.

[29] 20 June 2023.

Close

Editorial Notes

  • Published Case Name:

    Garanovic v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Garanovic v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 204

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    21 Aug 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
Ant Projects Pty Ltd v Brooks [2019] QCA 259
2 citations
Jump To
Cite 1 - [2019] QCA 259
Cite 2 - [2019] QCA 259
Garanovic v State of Queensland (Queensland Health) [2023] QIRC 129
1 citation
Jump To
Cite 1 - [2023] QIRC 129
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
Gregory Hennessy v Gold Coast Hospital and Health Service [2020] QIRC 81
2 citations
Jump To
Cite 1 - [2020] QIRC 81
Cite 2 - [2020] QIRC 81
Johnson v Gore Wood & Co (2002) 2 AC 1
2 citations
Jump To
Cite 1 - (2002) 2 AC 1
Cite 2 - (2002) 2 AC 1
Minister for Immigration and Citizenship v Li (2013) 249 CLR 332
2 citations
Jump To
Cite 1 - (2013) 249 CLR 332
Cite 2 - (2013) 249 CLR 332
Rogers v The Queen (1994) 181 CLR 251
2 citations
Jump To
Cite 1 - (1994) 181 CLR 251
Cite 2 - (1994) 181 CLR 251

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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