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Irvine v State of Queensland (Queensland Health)[2024] QIRC 231

Irvine v State of Queensland (Queensland Health)[2024] QIRC 231

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231

PARTIES:

Irvine, Amy

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/1

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

19 September 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 allegations substantiated – where appeal against disciplinary findings decision was filed out of time – where the disciplinary finding decision will not be heard out of time – where disciplinary action imposed – whether disciplinary action fair and reasonable

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 86, s 91, s 92, s 93, s 129, s 131

Directive 05/23: Discipline cl 9, cl 13

Directive 15/20: Positive performance management cl 6

CASES:

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

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

Reasons for Decision

  1. [1]
    Ms Amy Irvine has worked for Queensland Health for 13 years.[1]
  1. [2]
    A disciplinary process was initiated in mid-2023, with respect to nine allegations against Ms Irvine.[2]
  1. [3]
    Ms Irvine was issued with the disciplinary finding decision on 10 October 2023.[3] 
  1. [4]
    The disciplinary process culminated a disciplinary action decision that was received by Ms Irvine on 13 December 2023.[4]
  1. [5]
    On 2 January 2024, Ms Irvine filed an appeal with the QIRC.  While Ms Irvine indicated that the 'Decision being appealed' was the attached correspondence dated 7 December 2023 (the disciplinary action decision),[5] the nominated 'Reasons for Appeal' related to disputing the disciplinary findings.[6]
  1. [6]
    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. [7]
    The Respondent submitted that Ms Irvine could not now appeal the disciplinary finding decision of 10 October 2023 because she had not done so by 31 October 2023.[7]  (That is, within 21 days of the disciplinary finding decision).  That point was belatedly, but appropriately, conceded by Ms Irvine.[8]
  1. [8]
    However, Ms Irvine confirmed she wished to press her appeal against the Respondent's disciplinary action decision to impose a reprimand, together with a reduction in classification and remuneration. 
  1. [9]
    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:

… a decision under a disciplinary law to discipline -

  1. a person (other than by termination of employment), including the action taken in disciplining the person.[9]

…

  1. [10]
    Ms Irvine received the disciplinary action decision on 13 December 2023.  While Ms Irvine had indicated on her appeal notice that she filed more than 21 days after the decision was given, she did in fact file within time for that particular decision.  That is, before 3 January 2024.
  1. [11]
    The Respondent submitted that the original grounds for appeal were limited in scope to the disciplinary findings (which Ms Irvine has now effectively withdrawn from), "with the exception of the appropriateness of the penalty being briefly addressed in 3 short paragraphs at the conclusion of the submissions."  The Respondent contended then that "The proper course of action would be for the Applicant to withdraw this appeal and commence a new appeal of the decision genuinely being appealed against, with appropriately set out reasons for commencing the appeal.  It is noted that such appeal would be out of time at this stage, and would have also been out of time when the Applicant first raised arguments about the disciplinary action as opposed to the disciplinary findings."[10]  On that basis, the Respondent suggested the appropriate course was for the Commission not to hear the appeal, as it was misconceived.[11]  Ms Irvine resisted that.[12]  Usually, I would have some sympathy for the Respondent's position in such circumstances.  However, I am also mindful of the need to "provide for the just and expeditious disposition of the business of the … commission … at a minimum of expense."[13]  For that reason, I will proceed to hear the appeal as presently filed - though confined to the disciplinary action decision alone.

Appeal principles

  1. [12]
    Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[14]  This is the key issue for my determination.  Subsection (4) provides that for an appeal against a disciplinary decision, the commission:
  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [13]
    A public service appeal under the IR Act is not by way of rehearing,[15] but involves a review of the decision arrived at and the decision-making process associated therewith. 
  1. [14]
    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.[16]
  1. [15]
    Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

  1. [16]
    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. [17]
    The parties filed written submissions in accordance with the Directions Order issued on 9 January 2024.
  1. [18]
    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.

Relevant provisions of the PS Act

  1. [19]
    Section 3 of the PS Act provides:

3Main purposes of Act

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. [20]
    Section 4 of the PS Act provides:

4How main purpose is primarily achieved

The main purpose of this Act is to be achieved primarily by —

…

  1. creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by -
  1. providing for the key rights, obligations and employment arrangements of public sector employees; and
  2. maximising employment security and permanency of employment; and
  3. taking steps to promote equity, diversity, respect and inclusion in employment, including for diversity target groups; and
  4. ensuring a high-performing and diverse workforce, through fair and transparent, merit-based selection processes; and
  5. ensuring fair and accountable decision-making, including be providing public sector employees with access to fair and independent reviews and appeals; and
  6. setting a positive performance management framework for public sector employees; and
  7. fixing principles to guide public sector managers, and the work performance and personal conduct of public sector employees; and

…

  1. [21]
    Section 91 of the PS Act relevantly provides as follows (emphasis added):
  1. A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—

…

  1. been guilty of misconduct; or

…

  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. [22]
    Section 92 of the PS Act relevantly provides:

92Meaning of disciplinary action

  1. Disciplinary action is any action relating to employment, including, for example, any of the following actions -
  1. termination of employment;
  2. reduction of classification level and a consequential change of duties;
  3. transfer or redeployment;
  4. forfeiture or deferment of a remuneration increment or increase;
  5. reduction of remuneration level;
  6. imposition of a monetary penalty;
  7. if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee's periodic remuneration payments;
  8. a reprimand.

Relevant provisions of the Directive

  1. [23]
    Directive 05/23: Discipline (the Directive) relevantly provides (emphasis added):

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.

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.

…

13.Appeals

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.

Questions to be Decided

  1. [24]
    The question to be decided is whether the Delegate's disciplinary action decision was fair and reasonable.

Allegations

  1. [25]
    Nine allegations against Ms Irvine were substantiated. 
  1. [26]
    Of the nine allegations, three pertained to authorising nursing staff members to claim payment for time they did not work.  The Delegate determined there were grounds for discipline because Ms Irvine was guilty of misconduct.[17] 
  1. [27]
    The remaining six allegations involved:
  • Failure to deliver a high standard of patient care;
  • Risk to patient safety through unsafe rostering practices;
  • Designed and implemented an unsound process for managing 'Failure to Attend' (FTA), declined and 'Failure to Confirm' (FTC) patients;
  • Failure to publish rosters in line with legislative requirements;
  • Created and managed a TOIL system that did not meet legislative requirements;
  • Regular connection of an unauthorised, unsecured external hard drive into the Queensland Health IT network.
  1. [28]
    With respect to the above six allegations, the Delegate determined there were grounds for discipline because Ms Irvine had "engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently".[18] 

Proposed disciplinary action

  1. [29]
    In correspondence dated 10 October 2023, the Delegate issued the disciplinary finding decision and advised Ms Irvine that "serious consideration" was being given to the following disciplinary action (my emphasis):
  • Reprimand; and
  • Permanent reduction in classification and remuneration to Registered Nurse Grade 5.7.  Your working days and hours will not be affected by this change, specifically you will continue to work Monday to Friday, day shift.
  1. [30]
    Further, the Delegate advised Ms Irvine that she was also required "to undertake the following management action":
  • successfully complete a refresher of the Code of Conduct training through MSH Learn; and
  • familiarise yourself with your obligations with respect to the Code of Conduct for the Queensland Public Service, sign and return a copy acknowledging your understanding of the content; and
  • attend an in person ICARE2 training session and provide confirmation of your attendance.
  1. [31]
    Following QNMU's advocacy on Ms Irvine's behalf, the Delegate provided further information about two potential positions for Ms Irvine's consideration, should the disciplinary action proposed be implemented. 

Disciplinary action decision

  1. [32]
    Taking Ms Irvine's response to that further information provided into account, the Delegate ultimately decided that the appropriate disciplinary action to be applied was (my emphasis):
  • Reprimand; and
  • Permanent reduction in classification and remuneration to Clinical Nurse Grade 6.1.4, in the Electronic Bookings Office, Division of Surgery, PAH.  Your working days and hours will not be affected by this change, specifically you will continue to work Monday to Friday, day shift.  A copy of the position description for this role has been provided for your records…
  1. [33]
    The management action consisting of a requirement for Ms Irvine to complete various refresher training was also confirmed, as noted above at [30]. 

Appellant's submissions

  1. [34]
    Leaving aside her rejection of the disciplinary finding decision for the reasons earlier explained, Ms Irvine submitted the disciplinary action decision was not fair and reasonable because a reduction in classification and remuneration would:

Cause financial hardship

  • Ms Irvine will experience a significant decrease in income as a result of being permanently reduced from NG7.4 to NG6.1.4.  She submitted this "is disproportionate and unfair as it will have a significant, cumulative, negative impact on Ms Irvine's financial circumstances over the remainder of her working life."[19]
  • Ms Irvine is the sole care provider for her school age child.[20]
  • Ms Irvine also "financially supports her elderly parents and her ability to do so, to the current extent, will be impacted by a permanent reduction in income."[21]
  • A reduction in classification would result in "significant financial hardship"[22] and a reduction in income "over her remaining working life, including a decrease in superannuation payments which would compound over the years."[23]

Impact her nursing career

  • Ms Irvine's nursing career will be negatively impacted by a reduction in classification level because "she will not have opportunities to act in or apply for roles at a higher classification."[24]
  • While Ms Irvine accepts that she can apply for more senior nursing positions, that is "likely to take a long time and be an arduous journey as a consequence of the reduction in classification."[25]

Desire to retain current classification and remuneration

  • She has performed duties in the Electronic Bookings Office to a far higher standard than NRG5 classification, since placement there from June 2023.  That "demonstrates the benefit that her skills as an NRG7 bring to this role."[26]
  • While the Respondent submitted that it was not appropriate for Ms Irvine to return to NRG7 because it involved significant managerial responsibilities and supervision of others, the Appellant stated that not all NRG7 roles necessitate that – for example, Clinical Nurse Consultant roles.[27]  The Appellant submitted the Respondent could have transferred "her to a Clinical Nurse Consultant role on the same classification and remuneration as the allegations did not pertain to her clinical skills or performance."[28]
  • Ms Irvine submitted that she "is not seeking to continue in a management position, but in a clinical role where her extensive clinical nursing experience…can benefit" the HHS, colleagues and patients.[29] 

Positive Performance Management not utilised first

  • The Respondent "failed to initiate discussions with Ms Irvine regarding performance concerns as required" under the PS Act – and that failure should be taken into account "when determining any appropriate penalty".[30]  The Appellant submitted that s 86 of the PS Act provides that the "chief executive must not take disciplinary action … for a matter relating to the employee's performance … (without first) … applying positive performance principles."[31]
  • Ms Irvine has never been subject of informal or formal performance management, though acknowledged "two non-disciplinary warnings in 2019 and 2020."[32]
  1. [35]
    Ms Irvine's submissions noted the QNMU's advocacy regarding her family responsibilities and financial circumstances had resulted in the Delegate's reconsideration of the extent of the permanent reduction in her classification level and remuneration.  Instead of a reduction from NG7.4 to 5.7, the Delegate decided to impose a reduction from NG7.4 to NG6.1.4.[33]
  1. [36]
    Ms Irvine's submissions also noted the QNMU's advocacy about her family responsibilities had resulted in the Delegate's confirmation that the particular position she would be placed in remained one with Monday to Friday day shifts.[34]

Respondent's submissions

  1. [37]
    The Respondent submitted the disciplinary action decision was fair and reasonable because:
  • "… due to the numerous substantiated allegations and the nature of the allegations themselves, it would be inappropriate for the Appellant to return to the NRG7 level classification and associated accountabilities which include significant managerial responsibilities, and the professional and operational supervision of others."[35]
  • The role of NUM "is one of significant authority and seniority, and the expected level of awareness of the expectations of the Health Service in relation to how the Appellant performed the duties of her position, and the significant departure of her conduct from those expectations were considerations in determining that disciplinary action was the most suitable action to take …"[36]
  • The numerous substantiated allegations have resulted in a conclusion that "continuation in a senior management position is not appropriate", so demotion is fair and reasonable.[37]
  • "Financial impact is a component of any demotion decision, however the MSH submits it is only one factor to be considered and should not be more heavily weighted above other considerations."[38]
  • It is acknowledged that "the demotion will have an impact on the Appellant's career trajectory" however "the Appellant is not precluded from applying for more senior nursing positions either within Queensland Health or externally, the decision to demote the Appellant does not preclude her from ever being promoted again.  In light of the substantiated allegations, it is unreasonable for the Appellant to expect that there are no impacts to her career trajectory in the short term.  Such impact is a natural consequence of demotion."[39]  Ms Irvine is not precluded from ever attaining a role at a higher classification but rather her "new permanent substantive position will be at the NG6 classification."  Given Ms Irvine submitted she has many years left to work until retirement, the Respondent submitted that she therefore has "significant time to reapply for higher classification positions considering her long history in senior nursing positions and the project growth rate of senior nursing positions."[40]
  • The PS Act does not necessitate any demotion to be time limited.[41]  (That was later accepted by the Appellant).
  • Ms Irvine and the QNMU had proposed that "demotion to NG6 be considered instead" when responding to the then proposed disciplinary penalty of demotion to NG5 classification level.[42]  (I note that request was made by Ms Irvine, as contained in correspondence to the Delegate dated 22 October 2023).[43]
  • The Delegate took into consideration correspondence dated 8 July 2020 and 11 April 2019 "in which the Appellant was warned about her conduct and directed to familiarise herself with the Code of Conduct … and IT/Cyber security policies."[44]
  • While "there are NG7 positions that are more clinically focussed … all NG7 positions require a high degree of autonomy, decision making, the ability to undertake operational leadership and a high level of expertise in clinical practice …"[45]

Consideration

  1. [38]
    For the reasons below, I find that the Delegate's disciplinary action decision was appropriate and proportionate to the substantiated conduct.  The decision was fair and reasonable.
  1. [39]
    Clause 7.2 of the 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 and went on to consider that disciplinary action should be proposed.  Clause 9.5 of the Directive outlines considerations in "proposing appropriate and proportionate disciplinary action".
  1. [40]
    The Delegate decided to discipline Ms Irvine because he was satisfied that the nine substantiated allegations were sufficiently serious to warrant disciplinary action.  With reference to cl 7.2 of the Directive, management action alone could not be considered an appropriate response in these circumstances.  At this juncture, I note that the imposition of a 'reprimand' is not disputed – the demotion is the contested matter.
  1. [41]
    The Appellant relied on s 86 of the PS Act to assert that disciplinary action against Ms Irvine is not fair and reasonable because she was not first subject to positive performance management.  Specifically, the Appellant submitted that the Respondent "failed to initiate discussions with Ms Irvine regarding performance concerns as required" under the PS Act – and that failure should be taken into account "when determining any appropriate penalty".[46]  Section 86 of the PS Act requires compliance with the Positive Performance Management Directive (PPM Directive),[47] before any disciplinary action is taken against an employee for a matter relating to the employee's performance.  However, the PPM Directive in place in the relevant period was Directive 15/20: Positive performance management (Directive 15/20).  The Appellant has not specifically referenced the particular provision in the PPM Directive they say has been offended.  However, I note that Directive 15/20 has now been superseded by Directive 02/24: Positive performance management (Directive 02/24).  The new directive commenced on 27 May 2024 and did not apply at the time the disciplinary action decision was issued.  Therefore, the provisions of Directive 15/20 apply.  It appears to me that the Appellant's complaint that the Respondent has failed to initiate discussions as required is a matter addressed in the Directive 02/24.  That is because the differences between the old and new Directives have been explained to be:[48]

What's new

Previous directive

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   Agencies are now required to have a positive performance management policy

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   N/A

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   Includes clear steps that need to be taken before commencing a structured process to manage unacceptable work performance or poor personal conduct in a supportive way

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   Included some information but new directive is more explanatory

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   Provides that disciplinary action must not be taken against an employee for a matter relating to the employee's performance until their chief executive has complied with the directive (including the Performance Improvement Plan requirements)

Irvine v State of Queensland (Queensland Health) [2024] QIRC 231   Required a chief executive to apply positive performance management principles before taking disciplinary action for work performance

  1. [42]
    If my assumptions about the source of the Appellant's particular complaint under the PPM Directive are not correct, I would also then refer to the terms of Directive 15/20, cl 6.1 to ensure:
  1. managers promptly communicate and document any gaps between actual and expected work performance of an employee and allow reasonable time for the employee to self-correct
  1. constructive engagement with an employee to identify development and training opportunities, to improve work performance, and to build expertise in the public sector.
  1. [43]
    In my view, the Respondent did attend to that Directive provision by providing Ms Irvine with the "two non-disciplinary warnings in 2019 and 2020"[49], as was acknowledged by the Appellant.  While the Appellant's submissions acknowledged Ms Irvine was not subject of informal or formal performance management, the Respondent stated it took into consideration correspondence dated 8 July 2020 and 11 April 2019 "in which the Appellant was warned about her conduct and directed to familiarise herself with the Code of Conduct … and IT/Cyber security policies."[50]  It appears to me that discharges the requirements on the Respondent, under the applicable Directive at that time.  I do accept that there may have been the further step of implementing a PIP perhaps, for some of the nine substantiated allegations but not all, though the former Directive provides that course may be adopted (not must be adopted) for unacceptable performance (not conduct).  For all those reasons, I am not persuaded by the Appellant's argument that the Respondent's imposition of disciplinary action was wrong because the PPM Directive had not first been complied with.  In my view, it had.  At the point that Ms Irvine received not one but two written warnings (in a little over a year) about her conduct and was referred by her employer to two particular policies (that are also relevant to some of the nine allegations here), she ought to have been well alerted to the Respondent's concerns and acted upon it.
  1. [44]
    On the matter of directed further training, it is both commendable and appropriate that the Delegate has also decided to support Ms Irvine to change her work performance and conduct through a proactive training strategy, as contained in the management action section of the disciplinary action decision.  I agree that is required here. 
  1. [45]
    Section 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. [46]
    The seriousness of Ms Irvine's work performance and conduct issues is one of a few relevant considerations to determine whether to commence a disciplinary process pursuant to the Directive.
  1. [47]
    I will now proceed to consider whether the disciplinary action was "reasonable in the circumstances". 
  1. [48]
    The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors (emphasis added, citations removed):[51]

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. [49]
    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. the seriousness of the disciplinary finding
  1. the employee's classification level and/or expected level of awareness about their performance or conduct obligations
  1. whether extenuating or mitigating circumstances applied to the employee's actions
  1. the employee's overall work record including previous management interventions and/or disciplinary proceedings
  1. the employee's explanation (if any)
  1. the degree of risk to the health and safety of employees, customers and members of the public
  1. the impact on the employee's ability to perform the duties of their position
  1. the employee's potential for modified behaviour in the work unit or elsewhere
  1. the impact a financial penalty may have on the employee
  1. the cumulative impact that a reduction in classification and/or pay-point may have on the employee
  1. 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. [50]
    As I have earlier noted, Ms Irvine appeared to concede that a reprimand and training were reasonable - but contested the imposition of a permanent reduction in classification and associated remuneration. 
  1. [51]
    On that point, I note that a reprimand is a form of disciplinary action that does not affect an employee's remuneration, classification level or duties.  In light of the numerous substantiated allegations, and the earlier two warning letters, the Delegate has been rightly circumspect as to Ms Irvine's potential to make positive change through a reprimand and training alone. 
  1. [52]
    With respect to the degree of demotion to be imposed on Ms Irvine, the Delegate has stepped back from his initial proposal to apply a reduction in classification to RNG5.7 (with the associated reduction in remuneration), predominantly in consideration of Ms Irvine's submissions regarding financial hardship and family responsibilities.  I consider the Delegate adopted a fair-minded approach with respect to that revised penalty, that is commendable.
  1. [53]
    Ms Irvine has worked for the Health Service for approximately 13 years.  Despite asserting that she had "no previous performance concerns", Ms Irvine then contradictorily added that she "only had two non-disciplinary warnings in 2019 and 2020".  So apparently, there were in fact previous performance concerns, or the warnings would not have been issued. 
  1. [54]
    Due to Ms Irvine's length of service, and senior role, her expected level of awareness are relevant considerations that support the imposition of disciplinary action.
  1. [55]
    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. Some of the allegations pertained to a disregard to the health and safety of colleagues and patients.  That further supports the imposition of a disciplinary action beyond a reprimand and directed training.
  1. [56]
    The Delegate has appropriately considered the financial impact of a reduction in remuneration on Ms Irvine, her dependent child and her aging parents.  I can be satisfied those submissions were taken into account - and ultimately, the Delegate decided to reduce the degree of the demotion to be imposed.  That is fair and reasonable in my view.
  1. [57]
    The Respondent had drawn my attention to the fact that Ms Irvine had herself proposed that "demotion to NG6 be considered instead" when responding to the initial proposed disciplinary penalty of demotion to NG5 classification level.[52]  I have reviewed the filed attachments to the parties extensive submissions and note that request was indeed made by Ms Irvine, as contained in correspondence to the Delegate dated 22 October 2023.[53]
  1. [58]
    With respect to Ms Irvine's family responsibilities, I further note with approval that the Delegate continued to consider that important matter when providing some proposed 'options' for her feedback, settling on her preferred location at the PAH, and confirming Ms Irvine to work Monday to Friday day shifts, in order to best support her to undertake her caring responsibilities.  That was fair and reasonable.
  1. [59]
    While Ms Irvine submitted that the permanent reduction in classification from NG7.4 to NG6.1.4 "is disproportionate and unfair as it will have a significant, cumulative, negative impact on [her] financial circumstances over the remainder of her working life,"[54] the Respondent has explained that means that Ms Irvine's "new permanent substantive position will be at the NG6 classification."  The Respondent explained that "the Appellant is not precluded from applying for more senior nursing positions either within Queensland Health or externally, the decision to demote the Appellant does not preclude her from ever being promoted again" and added that "she therefore has "significant time to reapply for higher classification positions considering her long history in senior nursing positions and the project growth rate of senior nursing positions."[55]  That will no doubt provide some comfort to Ms Irvine, notwithstanding the Delegate's reminder to her that she is required to disclose the outcome of the discipline process if applying for advertised vacancies within MSH or Queensland Health.[56]
  1. [60]
    In consideration of all the circumstances of this matter, I believe the Delegate's determination of the final disciplinary action was appropriate and proportionate.  The decision was fair and reasonable.
  1. [61]
    I order accordingly.

Orders:

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

Footnotes

[1] Appellant's submissions filed 17 January 2024, [30].

[2] Ibid [5].

[3] Respondent's submissions filed 24 January 2024, [18].

[4] Appeal Notice filed 2 January 2024, 3; Respondent's submissions filed 24 January 2024, [18].

[5] Appeal Notice filed 2 January 2024, 3.

[6] Ibid 4.

[7] Respondent's submissions filed 24 January 2024, [3], [27].

[8] Appellant's reply submissions filed 31 January 2024, [5], [7].

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

[10] Respondent's submissions filed 6 February 2024, [7].

[11] Ibid [2].

[12] Appellant's submissions filed 13 February 2024, [2].

[13] Industrial Relations (Tribunals) Rules 2011 (Qld) r 6.

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

[15] 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).

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

[17] Public Sector Act 2022 (Qld) s 91(1)(b).

[18] Ibid s 91(1)(a).

[19] Appellant's submissions filed 17 January 2024, [35].

[20] Ibid [36].

[21] Appellant's submissions filed 31 January 2024, [23].

[22] Appellant's submissions filed 17 January 2024, [28].

[23] Ibid [25].

[24] Ibid [37].

[25] Appellant's submissions filed 31 January 2024, [25].

[26] Ibid [14], [15].

[27] Appellant's submissions filed 31 January 2024, [16]-[19].

[28] Ibid [19].

[29] Ibid [20].

[30] Appellant's submissions filed 17 January 2024, [21].

[31] Appellant's submissions filed 31 January 2024, [12].

[32] Appellant's submissions filed 17 January 2024, [22].

[33] Ibid [27]-[28].

[34] Ibid [28].

[35] Respondent's submissions filed 24 January 2024, [36].

[36] Ibid [37].

[37] Ibid [38].

[38] Ibid [39].

[39] Ibid [40].

[40] Respondent's submissions filed 6 February 2024, [10].

[41] Ibid [9].

[42] Respondent's submissions filed 6 February 2024, [11].

[43] Appellant's submissions filed 17 January 2024, Attachment 6.

[44] Respondent's submissions filed 6 February 2024, [12].

[45] Ibid [14].

[46] Appellant's submissions filed 17 January 2024, [21].

[47] Directive 15/20: Positive performance management applied at the relevant time, that is between 25 September 2020–26 May 2024.

[48] https://www.forgov.qld.gov.au/pay-benefits-and-policy/directives-policies-circulars-and-guidelines/positive-performance-management-directive-0224.

[49] Appellant's submissions filed 17 January 2024, [22].

[50] Respondent's submissions filed 6 February 2024, [12].

[51] [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li (2013) 249 CLR 332, [63]-[76].

[52] Respondent's submissions filed 6 February 2024, [11].

[53] Appellant's submissions filed 17 January 2024, Attachment 6.

[54] Appellant's submissions filed 17 January 2024, [35].

[55] Respondent's submissions filed 6 February 2024, [10].

[56] Correspondence from Dr Jeremy Wellwood to Ms Irvine dated 7 December 2023.

Close

Editorial Notes

  • Published Case Name:

    Irvine v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Irvine v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 231

  • Court:

    QIRC

  • Judge(s):

    McLennan IC

  • Date:

    19 Sep 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
Gilmour v Waddell [2019] QSC 170
2 citations
Jump To
Cite 1 - [2019] QSC 170
Cite 2 - [2019] QSC 170
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

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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