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- Spencer v State of Queensland (Queensland Health)[2024] QIRC 212
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Spencer v State of Queensland (Queensland Health)[2024] QIRC 212
Spencer v State of Queensland (Queensland Health)[2024] QIRC 212
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Spencer v State of Queensland (Queensland Health) [2024] QIRC 212 |
PARTIES: | Spencer, Jillian (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2024/41 |
PROCEEDING: | Application in existing proceeding |
DELIVERED ON: | 29 August 2024 |
MEMBER: | Gazenbeek IC |
HEARD AT: | On the papers |
ORDERS: |
|
CATCHWORDS: | PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – application in existing proceedings for leave to file further submissions – where Respondent wishes to file further submissions on potential jurisdictional issue with substantive appeal – where Appellant opposes application – where further submissions is necessary and convenient – application granted |
LEGISLATION AND INSTRUMENTS: | Industrial Relations Act 2016 (Qld) ss 451(1), 536 Public Interest Disclosure Act 2010 (Qld) ss 12, 13 Public Sector Act 2022 (Qld) ss 130, 131, 132(2), 133(d) Industrial Relations (Tribunals) Rules 2011 (Qld) r 41 |
CASES: | Morgan v State of Queensland (Queensland Health) [2020] QIRC 184 Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42 Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024 |
Reasons for Decision
- [2]This is an application in existing proceedings filed by the State of Queensland (Queensland Health) (‘the Respondent’) on 17 May 2024, seeking leave to file further written submissions responding to written submissions filed by Dr Jillian Spencer (‘the Appellant’) on 16 May 2024.
Background
- [3]The Appellant is a psychiatrist who commenced employment with the Respondent, within the Children’s Health Queensland Hospital and Health Service (‘CHQ’), in 2014.[1]
- [4]In short, the Appellant holds concerns about CHQ’s “treatment for children with gender dysphoria”, and that “CHQ’s clinical care could result in the potential loss of sexual function, fertility, and other similar consequences for some of CHQ’s patients with gender dysphoria.”[2]
- [5]The Appellant met with Dr Stephen Stathis and Dr Arun Pillai-Sasidharan on 13 June 2022 and 27 July 2022 (collectively, ‘the disclosure meetings’), both of whom are Medical Directors at CHQ, and supervisors of the Appellant. The Appellant argues that they informed Dr Stathis and Dr Pillai-Sasidharan of the above concerns at the disclosure meetings, and that doing so amounted to a public interest disclosure (‘PID’) under the Public Interest Disclosure Act 2010 (Qld) (‘the PID Act’) because:[3]
- there was a substantial and specific danger, being the serious risks to CHQ’s patients with gender dysphoria;
- that danger affects patients, which is a danger to public health or safety; and
- that danger may have affected people with a disability because gender dysphoria patients often present with other mental health diagnoses including depression, behavioural disorders, and autism.
- [6]In August 2023, the Appellant sent correspondence to CHQ in relation to the PID the Appellant argues was made at the disclosure meetings. After CHQ sought further particulars of this disclosure from the Appellant’s legal representatives,[4] an assessment was made by Mr Jamie Cairncross (Principal Workforce Relations Officer, CCC and PID Liaison Officer, CHQ) that the information reported by the Appellant at the disclosure meetings did not amount to a PID.[5]
- [7]The Appellant lodged a formal employee grievance on 6 December 2023 in respect to Mr Cairncross’ decision.[6] After considering the matters raised in this grievance, Mr Cairncross issued a fresh decision on 16 January 2024 which affirmed their overall assessment that the Appellant’s disclosures were not PIDs, but removed “erroneous” references to s 30 of the PID Act.[7]
- [8]In a decision of 25 January 2024, Mr John Hammond (Senior Director Facilities Management Transition, CHQ) found that Mr Cairncross’ determination (namely, that the Appellant’s disclosures do not satisfy the elements of a PID pursuant to sections 12 or 13 of the PID Act) was fair and reasonable (‘the Stage 1 Decision’).[8]
- [9]On 8 February 2024, the Appellant made a stage two grievance regarding the Stage 1 Decision.[9] On 22 February 2024, Mr Callan Battley (Executive Director of Nursing Services, CHQ) determined that the Appellant’s complaints do not meet the threshold of a PID under s 12(1)(a) or s 13(1)(c) of the PID Act.[10] It is this decision of Mr Battley that the Appellant appeals against in the substantive proceedings.
- [10]Following the issuing of directions on 18 March 2024 and 15 April 2024, the following submissions were initially filed in support of, or in response to, Dr Spencer’s appeal:
- Submissions of the Appellant, dated 4 April 2024;
- Submissions of the Respondent, dated 22 April 2024; and
- Further Submissions of the Appellant, dated 30 April 2024.
- [11]On 1 May 2024, the Respondent filed a ‘Form 4 – Application in existing proceedings’ seeking leave to file further written submissions on whether the Appellant is prevented by section 132(2) of the Public Sector Act 2022 (Qld) (‘the PS Act’) from appealing against Mr Battley’s decision of 22 February 2024.
- [12]As stated in the interlocutory application of 1 May 2024, the Respondent is of the view that section 132(2) prohibits Dr Spencer’s appeal, “because the appeal calls into question the policy decision of [CHQ] to endorse the Gender Affirmation Model of Care for clinical treatment of children experiencing gender dysphoria, a policy based on national guidelines.”[11]
- [13]Submissions were filed on this issue by the Respondent on 9 May 2024, and by the Appellant on 16 May 2024, in accordance with further directions of 1 May 2024.
Present application in existing proceedings
- [14]In a further ‘Form 4 – Application in existing proceedings’ filed on 17 May 2024, the Respondent seeks leave to make further written submissions in reply to the Appellant’s submissions of 16 May 2024, on the following basis (in summary):[12]
- the Appellant raised an argument in their submissions of 16 May 2024 that s 132(2) of the PS Act does not apply the Gender Affirmation Model of Care (‘the GAMC’ or ‘the Model’) as a ‘policy’;
- the Respondent has not previously addressed the definition of ‘policy’ due to the Appellant’s own previous characterisation of the GAMC as a policy, and now wishes to make further submissions about the correct definition of ‘policy’;
- further submissions would also address whether the GAMC alternatively falls within another of the types of decisions mentioned in s 132(2) of the PS Act; and
- further submissions are necessary in order to afford procedural fairness and ensure the Commission is properly informed with submissions from both parties on all relevant points.
- [15]In correspondence to the Industrial Registry of 17 May 2024, the Appellant advised that they “oppose [the] application dated 17 May 2024 and seek to be heard, in writing, prior to the Commission determining the application.”[13]
- [16]On 20 May 2024 and 29 May 2024, I issued directions requiring the filing of written submissions by the Respondent in support of, and by the Appellant in reply to, the interlocutory application of 17 May 2024.[14]
Relevant legislation
- [17]The Public Sector Act 2022 (Qld) outlines the following in relation to the right of appeal:
130 Appeals
A person may appeal against a decision if –
- An appeal may be made against the decision under section 131; and
- The person is entitled to appeal against the decision under section 133.
131 Decisions against which appeals may be made
- (1)An appeal may be made against the following decisions –
- (a)a conversion decision;
- (b)a directive decision;
- (c)a disciplinary decision;
- (d)a fair treatment decision;
- (e)a promotion decision;
- (f)a suspension without pay decision;
- (g)a transfer decision;
- (h)a work performance direction decision;
- (i)a decision about anything else against which another Act allows a person to appeal.
- (2)However, if an appeal may be made under this decision against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d).
- (3)This section is subject to section 132.
132Decisions against which appeals can not be made
…
- (2)A person cannot appeal against, or in an appeal call in question in any way, a decision that decides the policy, strategy, nature, scope, resourcing or direction of the public sector or the public service or a public sector entity.
133Who may appeal
The following persons may appeal against the following decisions –
…
- for a fair treatment decision – a public sector employee aggrieved by the decision; …
- [18]Section 451 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) confers the Commission with the following power:
451 General powers
- (1)The commission has the power to do all things necessary or convenient to be done for the performance of its functions.
- (2)Without limiting subsection (1), the commission in proceedings may –
- (a)give directions about the hearing of a matter; or
- (b)make a decision it considers appropriate, irrespective of the relief sought by a party; or
- (c)make an order it considers appropriate.
…
(emphasis added)
- [19]Rule 41 of the Industrial Relations (Tribunals) Rules 2011 also relevantly provides that the Commission may make an order (or, a directions order) about the conduct of a proceeding, either on the Commission’s own initiative or on the application of a party.[15]
- [20]While the scope of a power to do all things “necessary or convenient” is considerable, that power does not support “the doing of a thing which departs from the scheme of the enactment by which the power is conferred”.[16] While in the context of leave being given for the amending of a statement of facts and contentions, the Full Bench usefully articulated the following in Together Queensland Industrial Union of Employees v Scales & Anor (No 3):[17]
- [19]Subject to the dictates of justice, the Commission may exercise its jurisdiction to ensure that any amendment made is for the purpose of determining the real questions in issue in the proceedings, correcting any defect or error in the proceedings and is consistent with ensuring the prompt and efficient disposal of the litigation before it.
(emphasis added)
- [21]Section 451 is ultimately a discretionary power vested with the Commission. The question for my present determination is whether the Commission should exercise its general powers under s 451 of the IR Act, and grant the application made by the Respondent.
Submissions
Appellant’s submissions
- [22]The Appellant filed submissions in response to the Respondent’s interlocutory application, as summarised below:[18]
- applying the principles of procedural fairness in public sector appeals, a respondent is usually afforded a single opportunity to put forward its case in written submissions;
- it is irregular to afford a party three opportunities to present its case, and so CHQ must prove that it has not yet had a sufficient opportunity to present its case so as to render the granting of a third opportunity to do so reasonable;
- CHQ’s reason for seeking to file further submissions about the definition of policy is that it had previously believed the matter was not in issue;
- the Appellant’s use of the word ‘policy’ when setting out CHQ’s treatment of gender dysphoria patients was in a very different context to the potential application of s 132(2) of the PS Act;
- CHQ’s belief that the Appellant’s use of ‘policy’ was a concession that the GAMC was a policy, is unreasonable, and the Commission ought to reject that assertion;
- as ‘policy’ is not defined in the PS Act, CHQ ought to have known it should address its meaning as part of its prior submissions, and CHQ Does not need a further opportunity to address an issue it previously opted to ignore;
- CHQ also seeks to file further submissions about the alternative application of s 132 of the PS Act, but does not explain why doing so is warranted;
- without identifying a reason for not raising this alternative argument earlier, CHQ cannot satisfy the Commission that CHQ have not had a sufficient opportunity to present its case;
- CHQ’s failure to make such an alternative argument could only have arisen because they either did not consider it previously, or made a deliberate decision not to raise it; and
- CHQ has already had a reasonable opportunity to present its case on two occasions, and it is neither just nor necessary to grant it a third opportunity to do so.
Respondent’s submissions
- [23]In written submissions of 29 May 2024, the Respondent filed written submissions, as summarised below:[19]
- the decision on whether to grant the application for leave to file further submissions is an exercise of discretion, only limited under s 451(1) to things necessary or convenient to be done for the performance of its functions;
- the Commission can be satisfied that further submissions are necessary or convenient because:
- both the Industrial Court of Queensland and the Queensland Industrial Relations Commission have not previously determined the scope of s 132(2) of the PS Act, including the definitions of a decision on policy, strategy, nature, scope, or direction of a public sector entity;
- whether s 132(2) applies is of central importance because, in the event that it does apply to the decision appealed against, the Commission does not have jurisdiction to hear the substantive appeal;
- the Appellant has previously indicated that she believed the GAMC to be a policy of the Respondent;
- the Respondent had believed the issue in dispute in the substantive appeal to be whether the appeal called in question the GAMC, not whether the GAMC fell within the scope of s 132(2), and filed submissions on that basis;
- the Respondent also wishes to file further submissions on the correct principles of interpretation to guide the Commission’s consideration of the legislation, particularly in light of the Appellant’s misconceived submissions on the purposive approach to legislative interpretation; and
- the Respondent further wishes to file submissions on whether the appeal calls in question in any way the GAMC policy, clearly setting out how the substantive appeal would in fact be doing so, in light of the Appellant’s assertion that their appeal does not do so.
Consideration
- [24]In eventually deciding the substantive appeal, it will be necessary to first consider whether the Commission has jurisdiction to consider Dr Spencer’s appeal. As part of that consideration, I must be satisfied that the decision:
- is one against which an appeal may be made, pursuant to s 131 of the PS Act; and
- is not one against which an appeal cannot be made, pursuant to s 132 of the PS Act.
- [25]If I find that Dr Spencer’s appeal is in fact an appeal within the scope of s 132(2) of the PS Act, as the Respondent has submitted, then I must dismiss the appeal for want of jurisdiction. As put by the Respondent, the issue of whether s 132(2) applies “is of central importance because, if it does apply, the Commission does not have jurisdiction to hear the appeal and any decision on the substantive appeal would be ‘ultra vires’ (beyond power)”.[20]
- [26]I believe it to therefore be appropriate that the Commission is properly furnished with submissions from both parties addressing, e.g., the scope of s 132(2), particularly how “decision on policy, strategy, nature, scope or direction of…a public sector entity” is to be defined, and whether the GAMC is a ‘policy’ pursuant to s 132(2). However, upon reviewing the submissions of both parties presently before the Commission, it is clear that probative and thorough submissions on these matters has been limited.
- [27]In written submissions of 4 April 2024, Dr Spencer describes the disclosure meetings as serving two purposes:[21]
- … First, to discuss concerns I had with CHQ’s clinical care for children with gender dysphoria. Second, for Dr Stathis and Dr Pillai-Sasidharan to explain CHQ’s expectations of my conduct in my role. Those purposes were linked: my conduct, of which Dr Stathis and Dr Pillai-Sasidharan had concerns, stemmed from my concerns about CHQ’s treatment policy.
(emphasis added)
- [28]In reply submissions of 30 April 2024, the Appellant added the following:[22]
- Recently, a four-year review of gender identity services for children and young people commissioned by NHS England found that the clinical evidence supporting such policies is flawed:
This is an area of remarkably weak evidence, and yet results of studies are exaggerated or misrepresented by people on all sides of the debate to support their viewpoint. The reality is that we have no good evidence on the long-term outcomes of interventions to manage gender related distress.
- That finding is largely consistent with my reasoning for raising the dangers: the evidence supporting the policy was not satisfactory…
(emphasis added)
- [29]In submissions of 16 May 2024, however, the Appellant submits that s 132(2) of the PS Act does not apply because “the Model is just a guideline for care, which is not a policy.”[23] In relation to their previous references to a ‘policy’, the Appellant submits that “there are many different definitions of policy … and [their] submissions use “policy” to describe the Model in the sense of a general practice of CHQ.”[24]
- [30]It may well be the case that the Appellant has previously utilised the word ‘policy’ in their submissions in what was intended to be merely a colloquial manner, without regard to the potential relevance of s 132(2) of the PS Act. However, while the Appellant (somewhat ambiguously) posits that the Model is in fact not a policy “within the ordinary definition”, they do not then endeavour to clarify what they believe the ‘ordinary’ definition of policy either is or ought to be, nor do they distinguish a policy (according to such a definition) from the GAMC.[25]
- [31]The Respondent has also failed to file submissions addressing whether the Model is a policy within the meaning of s 132(2) of the PS Act. However, I accept the Respondent’s submission that this was due to a belief that the issues in dispute in the substantive appeal would be “whether the appeal called in question the GAMC, not whether the GAMC fell within the scope of s 132(2)”. The Respondent’s interlocutory application of 1 May 2024 was indeed filed on that basis, and it was only upon the Appellant’s 16 May 2024 submissions that it became apparent that the Appellant does not regard the Model as a policy (at which time the Respondent did not have the opportunity to file further submissions without seeking the leave of the Commission).
- [32]Conversely, I reject the Appellant’s submission that the Respondent has deliberately opted not to provide a relevant definition of policy, “potentially in an attempt to not highlight a potential issue with its case.”[26] I do not think that it is open to me to make or entertain such an inference, nor do I think that there is sufficient evidence to substantiate that suggestion. I also note that the directions orders previously issued in this matter anticipate that a party may wish to file further submissions after all other directions are complied with, and explicitly stipulate a deadline for a party to seek leave to do so. For example, Further Directions Order (No. 2) of 1 May 2024, in relation to the filing of submissions for the present interlocutory application, directed the following:[27]
- That, unless any party files an application by 4:00pm on Friday, 17 May 2024 for leave to make oral submissions or further written submissions, this interlocutory matter will be dealt with on the papers pursuant to s 451(1) of the Industrial Relations Act 2016, unless otherwise ordered.
- [33]By filing their interlocutory application at 3:19pm on 17 May 2024,[28] the Respondent sought leave to file further submissions in compliance with the directions of the Commission. While I understand the Appellant’s concerns about the Respondent having a third opportunity to file submissions, I do not accept their submission that parties filing additional submissions in appeals of this nature is irregular or an unpredictable event.
- [34]The absence of any submissions from either party on whether the GAMC is a policy within the meaning of s 132(2) of the PS Act is unfortunate, particularly given both parties have noted that the Commission has not previously explicitly determined the scope of s 132(2) of the PS Act.[29] Given that the Commission is now tasked with considering both the scope of s 132(2) and its application in Dr Spencer’s appeal, I believe it is necessary for both parties to file further submissions that explicitly addresses these matters.
- [35]The Respondent has also sought leave to file brief submissions in relation to two other key issues arising from the Appellant’s submissions of 16 May 2024:
- the correct principles of interpretation “to guide the Commission’s consideration of the legislation” and to “avoid the Commission falling into error in misinterpreting s 132(2)”, particularly following the Appellant’s misconceived submissions on how to interpret the words ‘call in question in anyway’ as they appear in s 132(2); and
- how the substantive appeal would “in fact be calling into question the GAMC policy, as the Appellant has wrongly asserted the grounds of appeal do not call in question to the GAMC.”[30]
- [36]Submissions on these issues directly relate to the Commission’s consideration of the scope of s 132(2) and its application to the substantive appeal, and it would be prudent of both parties to address these issues in further submissions.
Conclusion
- [37]While I acknowledge the Appellant’s concerns about the Respondent being afforded a further opportunity to present its case, I think it is equally in the Appellant’s interests that leave is granted to the parties to address these matters in more detail. Further, I do not think that the Respondent’s two interlocutory applications in relation to filing further written submissions on this jurisdictional issue is unfair to the Appellant. Whether the decision appealed against by Dr Spencer is indeed appealable is an important matter. I would have needed to consider this in deciding the substantive appeal regardless. The filing of further submissions that explicitly address the jurisdictional issue initially raised by the Respondent will be of assistance to the Commission in its endeavours to ensure the prompt and efficient disposal of the issues before it, and the just resolution of proceedings.
- [38]
Orders
- [39]I make the following orders:
- The Respondent’s application for leave to file further written submissions is granted;
- The Respondent is to file further written submissions (of no more than five pages in length) by 4:00pm on Friday, 6 September 2024, addressing both the scope of s 132(2) of the Public Sector Act 2022 (Qld), and its application to the substantive appeal; and
- The Appellant is to file further written submissions (of no more than five pages in length) in reply to the Respondent’s submissions by 4:00pm on Friday, 13 September 2024.
Footnotes
[1]Appellant’s written submissions, filed 4 April 2024, [4]; Respondent’s written submissions, filed 22 April 2024, [4].
[2]Appellant’s written submissions, filed 4 April 2024, [1].
[3]Ibid, [2].
[4]Letter of Mr P. Sparrow (A/Director HR Operations, CHQ) to Mr D. Davison (Principal, Meridian Lawyers), dated 19 September 2023.
[5]Letter of Mr J. Cairncross (Principal Workforce Relations Advisor, CCC and PID Liaison Officer, CHQ) to Dr J. Spencer, dated 22 November 2023.
[6]Letter of Mr D. Davison (Principal, Meridian Lawyers) to Ms N. Hebson (Executive Director People and Governance, CHQ), dated 6 December 2023.
[7]Letter of Mr J. Cairncross (Principal Workforce Relations Advisor, CCC and PID Liaison Officer, CHQ) to Dr J. Spencer, dated 16 January 2024, 2.
[8]Letter of Mr J. Hammond (Senior Director, Facilities Management Transition, CHQ) to Dr J. Spencer, dated 25 January 2024, 1-2.
[9]Letter of Mr D. Davison (Principal, Meridian Lawyers) to Adjunct Professor F. Tracey (Health Service Chief Executive, CHQ), dated 8 February 2024.
[10]Letter of Mr C. Battley (Executive Director of Nursing Services, CHQ) to Dr J. Spencer, dated 22 February 2024.
[11]Respondent’s Form 4 – Application in existing proceedings, filed 1 May 2024, 2.
[12]Respondent’s Form 4 – Application in existing proceedings, filed 17 May 2024, 3.
[13]Email of Ms J. Spencer to Industrial Registry, dated 17 May 2024.
[14]Further Directions Order (No. 3), issued 20 May 2024, Orders 1-2.
[15]As noted by the Appellant, section 536 of the IR Act additionally gives the Commission the power to “make orders or give directions [it] considers just and necessary in relation to interlocutory matters to be taken before the hearing of the proceedings”. However, I agree with the Respondent’s submission that this power does not limit the Commission’s broader power under s 451(1) of the IR Act.
[16]Together Queensland Industrial Union of Employees v Scales & Anor (No 3) [2022] QIRC 024 [17], citing Morton v Union Steamship Co of New Zealand Ltd [1951] HCA 42; see also Morgan v State of Queensland (Queensland Health) [2020] QIRC 184 [25].
[17][2022] QIRC 024 [19].
[18]Applicant’s submissions, filed 27 May 2024, 1-3.
[19]Respondent’s submissions, filed 29 May 2024, 1-4.
[20]Respondent’s submissions, filed 29 May 2024, [5].
[21]Appellant’s submissions, filed 4 April 2024, [6].
[22]Appellant’s further submissions, filed 30 April 2024, [29]-[30].
[23]Appellant’s further submissions, filed 16 May 2024, [50].
[24]Ibid, [52].
[25]Ibid.
[26]Appellant’s submissions, filed 27 May 2024, [18].
[27]Further Directions Order (No. 2), issued 1 May 2024, Order 3.
[28]Email from Human Resources, People and Governance, Children’s Health Queensland to the Industrial Registry, dated 17 May 2024.
[29]Appellant’s submissions, filed 27 May 2024, [18]; Respondent’s submissions, filed 29 May 2024, [5].
[30]Respondent’s submissions, filed 29 May 2024, [5].
[31]Appellant’s submissions, filed 27 May 2024, [21].
[32]Respondent’s submissions, filed 29 May 2024, [5].