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Olino v State of Queensland (Queensland Health)[2024] QIRC 268

Olino v State of Queensland (Queensland Health)[2024] QIRC 268

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Olino v State of Queensland (Queensland Health) [2024] QIRC 268

PARTIES:

Olino, Vermond

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2023/210

PROCEEDING:

Public Sector Appeal – Disciplinary Decision

DELIVERED ON:

19 November 2024

MEMBER:

Power IC

HEARD AT:

On the papers

ORDER:

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

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 131(1)(c) of the Public Sector Act 2022 (Qld) – whether substantiation of allegations was fair and reasonable – whether disciplinary finding was fair and reasonable – decision fair and reasonable – appeal dismissed.

LEGISLATION AND OTHER INSTRUMENTS:

Discipline Direction 05/23, cl 7

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

Public Sector Act 2022 (Qld), s 91, s 92, s 131

The Code of Conduct for the Queensland Public Service

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Goodall v State of Queensland [2018] QSC 319

Reasons for Decision

Introduction

  1. [1]
    Mr Olino Vermond ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Assistant in Nursing, Central Sterilising Department, Redcliffe Hospital, Metro North Hospital and Health Service ('MNHHS').
  1. [2]
    By letter dated 12 July 2024, Ms Louise O'Riordan, Acting Executive Director, Redcliffe Hospital, MNHHS, ('the decision maker') wrote to the Appellant inviting him to show cause in relation to three allegations.
  1. [3]
    The Appellant provided a response to the show cause notice via correspondence dated 28 July 2023.
  1. [4]
    On 13 August 2023, Ms Geoffrey Grima, Acting Executive Director, Redcliffe Hospital, MNHHS, advised that she was the appropriate delegate in the matter and notified the Appellant of her determination in relation to disciplinary findings and proposed disciplinary action.
  1. [5]
    The decision maker found that Allegations 1 and 3 were not substantiated given the information available.
  1. [6]
    The decision maker further found that Allegation 2 was substantiated and determined that there were grounds to discipline the Appellant under s 91 and s 92 of the Public Sector Act 2022 ('the PS Act').
  1. [7]
    Allegation 2 was outlined as follows –

Allegation 2

It is alleged that on 25 March 2023, you communicated in an unprofessional and/or inappropriate manner towards Ms Evelyn Wilkinson.

  1. [8]
    The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of a reprimand, however a written response was not received. The Respondent submits that the Appellant requested to meet with the Respondent to provide a response but did not respond when an attempt was made to arrange a meeting.
  1. [9]
    By letter dated 19 October 2023 and hand delivered on 29 September 2023, the decision maker advised that she had returned from leave and that a disciplinary decision had been made and that the disciplinary action would be a reprimand.
  1. [10]
    On 7 November 2023, the Appellant filed an appeal notice appealing against the disciplinary decision dated 19 October 2023 pursuant to s 131(1)(c) of the PS Act.
  1. [11]
    The issue for determination is whether the disciplinary decision was fair and reasonable.

Legislative Framework

  1. [12]
    Section 91 of the PS Act provides the following grounds for discipline:
  1. 91Grounds for discipline
  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 under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  2. (b)
    been guilty of misconduct; or
  3. (c)
    been absent from duty without approved leave and without reasonable excuse; or
  4. (d)
    contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
  5. (e)
    used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
  6. (f)
    contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement—
  1. (i)
    failing to disclose a serious disciplinary action; or
  2. (ii)
    giving false or misleading information; or
  1. (g)
    contravened, without reasonable excuse, a provision of—
  1. (i)
    this Act, other than section 39 or 40; or
  2. (ii)
    another Act that applies to the employee in relation to the employee's employment; or
  1. (h)
    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
  1. (2)
    A disciplinary ground arises when the act or omission constituting the ground is done or made.
  2. (3)
    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95.
  3. (4)
    To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
  4. (5)
    In this section—

misconduct means—

  1. (a)
    inappropriate or improper conduct in an official capacity; or
  2. (b)
    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee's employment in the public sector

relevant standard of conduct —

  1. (a)
    for a public sector employee, means—
  1. (i)
    standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  2. (ii)
    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. (b)
    for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  2. (c)
    for a public sector employee who is a fire service officer under the Fire Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

  1. [13]
    Clause 7 of the Discipline Directive 05/23 ('the Directive') provides the requirements to commence a discipline process:
  1. 7.1Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  2. 7.2Where 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
  2. b. whether the matter should be resolved through management action instead, and
  3. 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
  4. 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
  5. 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
  6. 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
  7. g. whether further information is required to make a decision to commence a disciplinary process, and
  8. 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.

Appeal principles

  1. [14]
    The appeal must be decided by reviewing the decision appealed against.[1] As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.[2] An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,[3] but involves a review of the decision arrived at and the decision making process associated therewith.
  1. [15]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the decision by the Respondent to make a disciplinary finding and impose disciplinary action was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal.

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:
  1. (a)
    confirm the decision appealed against; or
  2. (b)
    set the decision aside and substitute another decision; or
  3. (c)
    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 Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice.

Appellant's Submissions

  1. [18]
    The Appellant's submissions are, in summary, as follows:
  1. a)
    The Appellant is appealing against the decision to substantiate allegation 2, and the penalty of a reprimand.
  2. b)
    The Appellant concedes that he may have raised his voice towards Ms Wilkinson but submits that he was not shouting at her. The Appellant does not concede that he communicated in an unprofessional manner to Ms Wilkinson.
  3. c)
    The Appellant submits that he may have raised his voice when he was talking from the 'decon' area through a return conveyor door. The Appellant recalls going to the clean area to reason with Ms Wilkinson. The Appellant felt overwhelmed and may have raised his voice unintentionally as he felt was being gang up on and bullied. The Appellant submits that the only reason that he closed his fist in that situation was to control himself, and not to show that he was going to harm people.
  4. d)
    The Appellant argues that there have been many times where he has felt bullied by Ms Wilkinson as she is "always bossing [him] around" and reporting his work which she thinks it is not correct. The Appellant had not previously reported this behaviour to the Department out of respect of Ms Wilkinson.
  5. e)
    The Appellant believes that he may have been angry and frustrated at the time, but that his conduct should not be described as aggressive. He also argues that while no contravention of the relevant policies and procedures occurred, there are also other people who can help establish and explain what really happened.
  6. f)
    The Appellant argues that the decision maker did not take his response into account when deciding to impose the disciplinary decision of a reprimand.
  7. g)
    The Appellant contends that the decision is unfair and unreasonable as cl 7.2 of the Directive requires the decision maker to assess factors such as the seriousness of the alleged conduct, whether the conduct was a single incident of poor conduct, and whether management action would alleviate the impacts of the alleged conduct on the relevant parties.
  8. h)
    The Appellant argues that these factors were not considered by the decision maker and there is no evidence of consideration in any of the correspondence from the decision maker to the Appellant.
  9. i)
    The Appellant provided an excerpt from his response to his employer that detailed how he feels he was bullied in the lead up to the incident with Ms Wilkinson.
  10. j)
    The Appellant submits that the decision to substantiate allegation 2 is demonstrably incorrect. The Appellant argues that any wrongdoing that occurred in relation to allegation 2 does not rise to the level requiring rectification through disciplinary action when management action would be suitable. The use of management action would be consistent with the Directive.
  11. k)
    The Appellant argues that there are no grounds to discipline him pursuant to s 91(1)(h) of the PS Act as his conduct did not constitute misconduct and he has not acted unprofessionally or in a way that is contrary to MNHHS policy and procedure.
  12. l)
    The Appellant submits that his previous request to discuss the proposed penalty with the decision maker was ignored. If the disciplinary findings are confirmed on appeal, or if the appeal succeeds and the decision is returned to the decision maker, the Appellant argues that he should be provided with a further opportunity to respond to the proposed penalty action.

Respondent's Submissions

  1. [19]
    The Respondent filed submissions which are summarised below –
  1. a)
    The Respondent submits that the discipline finding decision was fair and reasonable as the finding was made considering the admissions made by the Appellant in his response.
  2. b)
    The Respondent submits that the disciplinary action was fair for the following reasons:
  1. i)
    The Appellant was provided with an opportunity to respond to the allegation before the discipline finding was made;
  2. ii)
    The Appellant was provided with an opportunity to respond to the proposed disciplinary action; and
  3. iii)
    The Appellant requested to meet with the Respondent to discuss the proposed disciplinary action in person. The Respondent attempted to meet with the Appellant, however, the Appellant did not respond to the meeting invitation.
  1. c)
    The Respondent submits that the disciplinary action was reasonable for the following reasons:
  1. i)
    The Respondent found the Appellant's behaviour was inconsistent with the standards of conduct for a public sector employee set out in the Code of Conduct.
  2. ii)
    The Appellant stated in his response to allegation three that he raised his voice but was not shouting. He further stated "I may have raised my voice when I was talking from the decon area through a return conveyor door." He also stated that "aggressive is wrong description on my actions at that time. I might be angry and frustrated but not aggressive."
  3. iii)
    The Respondent submits that the intention of the Appellant in raising his voice was a mitigating factor only.
  4. iv)
    The Respondent notes that the Appellant did not respond to allegation two with the insight that his actions may be perceived differently to how they are intended. Specifically, the Appellant raised his voice and clenched his fists, and this was perceived as aggressive behaviour.
  5. v)
    The Respondent determined that the Appellant's conduct was sufficiently serious to warrant disciplinary action because of the harmful impact aggressive behaviour can have on employees in the workplace.
  6. vi)
    The Respondent considered the mitigating factors raised by the Appellant and determined that a reprimand was reasonable and proportionate in the circumstances.
  1. d)
    The Respondent notes that Appellant's submission that he was being "bullied". In the Second Notice to Show Cause letter, the Appellant was invited to provide details of his specific concerns. No further information was provided by the Appellant.

Consideration

  1. [20]
    The decision on appeal is whether the Respondent's decision to impose the disciplinary action of a reprimand was fair and reasonable.
  1. [21]
    The decision maker substantiated the allegation that the Appellant had 'communicated in an unprofessional manner towards Ms Evelyn Wilkinson' on 25 March 2023. The particulars of the allegation were outlined to the Appellant as follows –
  1. a.On 25 March 2023, Ms Evelyn Wilkinson raised concerns that you did not follow the correct procedure regarding the sterilisation of instruments.
  2. b.On receiving this feedback, you responded by raising your voice and yelling through the return conveyor at Ms Wilkinson "you always make the rules".
  3. c.Ms Wilkinson informed you that she was following the rules and informed you to speak with the Nurse Unit Manager (NUM). You responded by stating "I don't need to talk to the NUM".
  4. c.Witness 1 stepped in to reinforce the information provided by Ms Wilkinson was correct regarding the sterilising of instruments.
  5. d.During your interaction with Ms Wilkinson, it was reported that you became very aggressive and had your fist clenched by each of your sides.
  1. [22]
    In his submissions, the Appellant concedes 'the substance of the events' to the extent that he may have raised his voice however states that he was not shouting at Ms Wilkinson. The Appellant does not concede that he communicated in an unprofessional manner. It is clear that the Appellant's voice was raised and accordingly it was open to the decision maker to determine that the Appellant was shouting. It was also open to the decision maker to determine that this communication was unprofessional given that it occurred in a workplace and was directed at a colleague with other employees present.
  1. [23]
    The Appellant submits that he felt overwhelmed and may have raised his voice 'unintentionally' as he felt bullied. He states that the only reason he closed his fist was to control himself and not to show that he was going to harm people.
  1. [24]
    The Appellant submits that 'aggressive' is the wrong description of his actions although conceded that he might have been angry and frustrated. The reason for the Appellant's conduct, such as his anger or frustration, do not render the description incorrect.
  1. [25]
    Whilst the Appellant's submissions regarding his state of mind mitigate the conduct to some degree, it was open to the decision maker to determine that the allegation was substantiated. The Appellant may have felt angry and frustrated; however, clenched fists and a raised voice can present as aggressive behaviour that is inappropriate and disrespectful in the workplace.
  1. [26]
    The decision noted that the use of a closed fist can be perceived as a sign of aggression or hostility even if that was not the Appellant's intention. The decision maker considered the Appellant's previous submission that this action was a form of self-control but noted the importance of awareness of how body language can be perceived by others. The decision maker provided adequate reasons for the disciplinary decision that was open to be made in the circumstances.
  1. [27]
    Following the substantiation of the allegation, the decision maker determined that the conduct was grounds for discipline pursuant to s 91(1)(h) of the PS Act on the basis that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, specifically Standard 1.5 of the Code of conduct for the Queensland Public Service. Standard 1.5 provides that employees must "treat co-workers, clients and members of the public with courtesy and respect, be appropriate in [their] relationships with them, and recognise that others have the right to hold views which may differ from [their] own."
  1. [28]
    I note the Appellant's submission that his conduct was not misconduct or unprofessional behaviour. The decision maker's finding is not one of misconduct. It was however open to the decision maker to determine that the conduct constituted unprofessional behaviour. The disciplinary finding was open to the decision maker on the basis that the Appellant's conduct was neither courteous nor respectful.
  1. [29]
    The decision maker determined that the appropriate disciplinary action in this matter was a reprimand. The decision noted that working with others can sometimes be challenging and conflicts or disagreements may arise. The decision maker proceeded to provide a fair and reasonable justification for the imposition of a reprimand, noting the obligation on employees to communicate in a professional and respectful manner.
  1. [30]
    A reprimand is at the less serious end of the range of disciplinary actions available to the decision maker. I do not consider the disciplinary action of a reprimand to be disproportionate to the conduct substantiated.
  1. [31]
    I note that the decision also included reference to the Appellant's submission that he felt bullied and targeted. The decision maker appropriately outlined avenues through which the Appellant could seek to have these concerns resolved.
  1. [32]
    In all of the circumstances, the decision was fair and reasonable.

Order

  1. [33]
    I make the following order:

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

Footnotes

[1] Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act').

[2] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261.

[3] Goodall v State of Queensland & Anor [2018] QSC 319, 5.

[4] IR Act, s 562B(3).

Close

Editorial Notes

  • Published Case Name:

    Olino v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Olino v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 268

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    19 Nov 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
Brandy v Human Rights & Equal Opportunity Commission (1995) 183 CLR 245
1 citation
Jump To
Cite 1 - (1995) 183 CLR 245
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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