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Brady v State of Queensland (Queensland Health) (No. 1)[2024] QIRC 35

Brady v State of Queensland (Queensland Health) (No. 1)[2024] QIRC 35

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION

Brady v State of Queensland (Queensland Health) (No. 1) [2024] QIRC 035

PARTIES:

Brady, Susan

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2023/232

PROCEEDING:

Public Sector Appeal – Appeal against a fair treatment decision

DELIVERED ON:

14 February 2024

HEARD AT:

On the papers

MEMBER:

Pidgeon IC

ORDERS:

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 – where the appellant appeals an internal review decision – decision fair and reasonable – decision appealed against confirmed

LEGISLATION AND

OTHER INSTRUMENTS:

Directive 11/20 Individual employee grievances cl 9

Industrial Relations Act 2016 (Qld) s 562C

Public Sector Act 2022 (Qld) ss 129, 131, 133

Reasons for Decision

Introduction

  1. [1]
    Ms Susan Brady (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as an HP3 Scientist, Forensic DNA Analysis within Forensic Science Queensland (‘FSQ’), Queensland Public Health and Scientific Services (‘QPHaSS’).
  1. [2]
    Ms Brady appeals the internal review decision of Ms Damian Green, Director-General, Corporate Services, dated 9 November 2023.

Background

  1. [3]
    To provide context, FSQ[1] has been the subject of two separate, independent Commissions of Inquiry (‘COI’) in both 2022 and 2023. Relevant to Ms Brady’s appeal, the Commission of Inquiry into Forensic DNA Testing in Queensland (‘the 2022 COI’), concerned a history of poor management and culture within FSQ (formerly known as the Forensic Scientific Services’ DNA Analysis Unit). A report was provided to the Queensland Government in December 2022 with recommendations to address these issues, which the Respondent says it has implemented with the participation of staff.

Ms Brady’s individual employee grievance

  1. [4]
    Ms Brady submitted an individual employee grievance on 13 February 2023 to Mr Nick Steele, Deputy Director-General, requesting backpay for the period of 8 March 2022 to 28 October 2022 as she says her return to work was unreasonably delayed despite her being fit for duty.[2] Ms Brady raised a number of complaints in this grievance about how she was treated during that period, and in the period since she has returned to work.[3]
  1. [5]
    Ms Brady contends that the findings of the 2022 COI are relevant to her grievances. Ms Brady conveyed this to Mr Steele in an email on 17 March 2023 where she outlined which findings of the 2022 COI she believed were relevant to her grievances. In particular, Ms Brady identified a ‘toxic culture’ within the laboratory and said that she felt her grievances had not been appropriately addressed. Further, Ms Brady requested the details of a reclassification process in 2008, whereby she also says she was treated unfairly.[4]
  1. [6]
    Ms Brady’s emails of 13 February 2023 and 17 March 2023 were dealt with as one grievance.
  1. [7]
    Mr Steele issued an outcome letter to Ms Brady on 25 May 2023 where he declined her request for backpay. Mr Steele explained:
  • The Human Resources (‘HR’) team had undertaken a thorough assessment of the medical information provided by Ms Brady throughout her period of absence. HR considered the appropriateness of her return to work in light of the Department’s health and safety obligations;
  • Alternative and temporary placements were considered within the constraints of the operational limitations of the laboratory and the restrictions contained in the medical information provided by Ms Brady; and
  • The Department considers it was appropriate for it to give ongoing consideration to Ms Brady’s medical information and make efforts to safely return her to work. Given its commitment to prioritising employee wellbeing and safety following prolonged absences from the workplace, the Department was unable to return Ms Brady to work until October 2022.
  1. [8]
    While Mr Steele rejected Ms Brady’s request for backpay, he exercised his discretion to offer Ms Brady five paid working days in recognition of the delay between her medical clearance on 22 October 2022 and her eventual return to work on 31 October 2022. This was the maximum discretionary leave Mr Steele was able to offer.
  1. [9]
    Also in that correspondence of 25 May 2023, Mr Steele addressed Ms Brady’s concerns about the way she had been treated following her return to work, and a strategy for effective reintegration, noting the laboratory’s transition to FSQ following the 2022 COI. Further, Mr Steele confirmed that as a review of the 2008 reclassification process had already been communicated to Ms Brady, a further review was considered inappropriate.
  1. [10]
    Ms Brady sent a further letter to Mr Steele on 23 June 2023 where she:
  • Reiterated she believed she was entitled to backpay for the period she was ‘denied work’, that being 8 March 2022 to 28 October 2022;
  • Claimed her grievance related to ‘acknowledgment and recognition of what had occurred in the past’;
  • Said her return to the workplace under old management was stressful;
  • Stated she was isolated during her reintegration;
  • Explained she was concerned about the 2008 reclassification process and considered it was maladministration;
  • Raised new complaints regarding historic grievances regarding ‘lack of training development’ in 2016 and ‘bullying and harassment’ in 2017, which she considered unresolved by the time she returned to work;[5]  and
  • Sought backpay for the period she was off work, a review of the 2008 reclassification process, an outcome to her 2016 and 2017 grievances, a written apology, and a meeting with the then-Director-General.
  1. [11]
    Mr Steele responded on 25 August 2023,[6] confirming his earlier decision to decline her request for backpay. He acknowledged Ms Brady’s historical grievances from 2016 and 2017. He said those grievances had been addressed and finalised and noted that Ms Brady had not elected to file an internal review regarding the outcome of those grievances. In these circumstances, Mr Steele considered it would be inappropriate to review those grievances further.

Internal review

  1. [12]
    On 8 September 2023, Ms Brady requested an internal review of Mr Steele’s decision regarding her individual employee grievance in correspondence to Mr Michael Walsh, Director-General of Queensland Health.[7] Specifically, Ms Brady sought a review of her request for backpay and the unresolved status of her 2016 and 2017 grievances, an ‘acknowledgment and recognition of what has occurred in the past’ and a review of the 2008 reclassification process.
  1. [13]
    Mr Green held the appropriate delegation to the internal review, which was confirmed to Ms Brady in correspondence of 20 September 2023. Mr Green collectively considered Mr Steele’s decision letters of 25 May 2023 and 25 August 2023 as one grievance decision.
  1. [14]
    Ms Brady agreed to two extensions of time for Mr Green to provide his internal review, with a final deadline of 3 November 2023.[8] The internal review decision was provided on 9 November 2023,[9] and the Respondent recognises this delay.

The decision letter

  1. [15]
    Ultimately, Mr Green determined that the grievance decision of Mr Steele was fair and reasonable.
  1. [16]
    At the outset, Mr Green described the actions taken to review the decision made by Mr Steele. Mr Green explained that the review was assessed under the Stage 2 Internal Review Process in accordance with Queensland Health Human Resource Policy E12 Individual employee grievances (‘the Policy’) and Public Sector Commission Directive 11/20 Individual employee grievances (‘the Directive’).
  1. [17]
    Mr Green reiterated that he held the relevant delegation and confirmed he had regard to:
  • Ms Brady’s stage 1 grievance letter of 13 February 2023;
  • Her follow-up email of 17 March 2023;
  • Mr Steele’s decision letter of 25 May 2023;
  • Ms Brady’s response to Mr Steele of 23 June 2023;
  • Mr Steele’s decision letter of 25 August 2023;
  • Ms Brady’s request for an internal review dated 8 September 2023;
  • Correspondence from Mr Michael Lok, General Manager, Strategy, Community and Scientific Support dated 12 June 2018 regarding her historical grievances;
  • The Directive; and
  • The Policy.
  1. [18]
    Mr Green explained his understanding of the basis of Ms Brady’s request for an internal review and the outcome sought by her. He then considered the process undertaken by Mr Steele to form his decision, and Ms Brady’s grounds for seeking the internal review.
  1. [19]
    Firstly, Mr Green said he was satisfied that Mr Steele held the appropriate delegation to consider Ms Brady’s grievances.[10] Mr Green also considered that Mr Steele complied with the procedure set out in cl 9.1 of the Directive and the relevant policies. Mr Green said it was open to Mr Steele as the delegate to determine appropriate action for resolution, it was evident that Mr Steele thoroughly considered all information, and Ms Brady was advised of the outcome in writing with reasons for the decision.

The backpay decision

  1. [20]
    Mr Green noted that the basis of Ms Brady’s request for backpay for the period of 8 March 2022 to 28 October 2022 was that her treating medical practitioner advised that she could return to work with a number of medical restrictions from 8 March 2022. Ms Brady believes those restrictions ought to have been accommodated by the Respondent. However, Mr Green said:

… your substantive work unit, in consultation with the Department’s human resources unit, were unable to accommodate these initial restrictions placed upon your return to work and sought additional information on how you may be supported to return. Your treating medical practitioner lifted the medical restrictions on 22 October 2022, and you returned to work on 31 October 2022.

  1. [21]
    Mr Green acknowledges Ms Brady’s dissatisfaction with the outcome letter issued by Mr Steele. He notes that Ms Brady disagrees with Mr Steele’s decision and confirms her view that the delay in returning her to work was unreasonable and that her restrictions could have been accommodated by Queensland Health.
  1. [22]
    Mr Green says that Mr Steele gave due consideration to Ms Brady’s concerns and desired outcome and provided her with a written decision in relation to this. Specifically, Mr Green noted:

It is clear to me that Mr Steele gave due consideration to your concerns, and desired outcome, and provided you with a written decision in relation to same. Specifically,

  • Careful consideration was given to all relevant dates and activities that occurred regarding your fitness to return to the workplace, during that relevant period.
  • While the process to return you to the workplace was lengthy, the workplace has a responsibility to ensure your safety and wellbeing and could not safely return you based on the initial medical restrictions.
  • Additional information was actively sought from your medical practitioner by the HR team to determine whether and when you could safely return to work. Alternative working arrangements in line with your restrictions were proposed to you, however you did not accept.
  1. [23]
    Mr Green notes that Mr Steele’s decision was that the actions by the workplace and the HR team in supporting Ms Brady’s return to work were reasonable in the circumstances and therefore Mr Steele determined not to make a payment to Ms Brady for the period between 8 March 2022 and 21 October 2022.  However, Mr Green further notes that due to the delay between full medical clearance and the actual return-to-work date, Mr Steele decided to provide an approved period of five days discretionary leave from 24 October 2022 to 28 October 2022.
  1. [24]
    Mr Green concludes that after reviewing all available information, it was open to Mr Steele to arrive at the decision provided to Ms Brady and that the decision was a reasonable decision to make in the circumstances. Mr Green states, ‘I am satisfied that the decision to not provide you with backpay for the period between March and October 2022 is fair and reasonable’.

The decision regarding the 2016 and 2017 grievances

  1. [25]
    Mr Green then turns to Mr Steele’s decision regarding grievances Ms Brady considers to be unresolved from 26 May 2016 and 15 September 2017.  Mr Green notes that Mr Steele determined that the issues Ms Brady raised in those grievances were addressed in a previous grievance outcome letter provided by Mr Michael Lok dated 12 June 2018.
  1. [26]
    Mr Green notes that Ms Brady reports attending a meeting with a former Principal HR Advisor on 31 August 2022 where she says she was advised that the resolution of the grievances would likely take several months. Mr Green tells Ms Brady that he does not consider this advice provided by the former Principal HR Advisor was confirmation that the grievances remain unresolved. Mr Green notes that Mr Steele determined that the grievances were resolved following the outcome letter provided to Ms Brady on 12 June 2018.
  1. [27]
    Mr Green states that it was ‘entirely reasonable and open to Mr Steele at the relevant time to not disturb the findings or the outcome of your original grievances communicated to you in 2018’. Mr Green notes that good practice in managing employee grievances focuses on timely resolution, and the grievance framework has timeframes for seeking reviews of decisions and the timely resolution of grievances. Mr Green also notes that timeframes exist to ensure that employee grievances are resolved appropriately and that issues are not continually re-aggravated by employees dissatisfied with outcomes.
  1. [28]
    Mr Green concludes that it is his view that the grievance issues were aired and addressed appropriately by Mr Lok in June 2018 correspondence. The correspondence also included reference to Ms Brady exercising her right to appeal the decision in 2011. Mr Green notes that the Directive was not in place at the time of Mr Lok’s decision, however the preceding Directive and Policy both provide for a 14-day timeframe from when a stage 1 grievance outcome is communicated to seek an internal review.
  1. [29]
    Mr Green concludes:

I am satisfied that Mr Steele’s decision in finding that these matters were finalised aligns to the Directive and Policy requirements relating to timeframes for internal review requests, and his therefore fair and reasonable.

  1. [30]
    After informing Ms Brady that he considers Mr Steele’s decision was fair and reasonable in the circumstances, Mr Green says, ‘while I recognise you may be disappointed with the outcome of your grievance, I trust the information I have outlined in my considerations has helped you understand how the decision was reached’. Mr Green recognises that the concerns Ms Brady raised in 2016 and 2017 continue to be a source of distress for her. Mr Green notes that the culture issues at the facility have been well ventilated during the Commission of Inquiry which took place in 2022 and says that he is of the view that the culture of the workplace has changed and continues to change for the better under new leadership. Mr Green encourages Ms Brady to engage with the changes occurring and support to the continued development of a positive workplace culture at FSQ.

Appeal Principles

  1. [31]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.
  1. [32]
    Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
  1. [33]
    A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
  1. [34]
    In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
  1. confirm the decision appealed against; or

…

  1. For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Legislative Framework and Other Instruments

  1. [35]
    Section 131 of the Public Sector Act 2022 (Qld) (‘the PS Act’) lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
  1. [36]
    Section 129 of the PS Act relevantly states:

129  Definitions for part

…

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [37]
    Section 133 of the PS Act explains who may appeal a fair treatment decision:

133  Who may appeal

…

  1. for a fair treatment decision—a public sector employee aggrieved by the decision;

Ms Brady’s appeal notice and reasons for appeal

  1. [38]
    Ms Brady’s appeal notice is accompanied by documentation surrounding her request for backpay from Queensland Health and request for a ‘process of investigation of maladministration by Ms Catherine Allen and her management team’.  Ms Brady attaches a 15-page document titled ‘Timeline of Incidents’ which commences with her original employment in 1998 and then addresses a wide-ranging set of issues including her employment history, details of her 2016 and 2017 grievances, a ‘brief of unreasonable behaviour’, the history of her WorkCover application, involvement with Workers First and Brian Newman, a submission she made to the Legal Services Commission, submissions made to the Workers’ Compensation Regulator, a request for a WorkCover appeal, alleged maladministration by WorkCover, and the impact of management actions.  The document then turns to 2022 at page 14 of 15 where Ms Brady addresses her request for an external review:[11]

In 2022:

  • I was meant to return to work 07 March 2022 whereby she requests a host role. HR said there were none available on campus and continued to want her to return to her substantive. Then in June due to money constraints I asked to return to her substantial role as I knew XY[12] was managing another team.
  • I had asked about the grievances in a meeting with HR delegate Ms Josleen Daher and Helen Gregg on 31 August 2022. She was told by HR they would contact her regarding the outstanding grievances.
  • I had an interview with Laura and Jess for the COI on 15 September 2022 (anonymously) but she did not appear at the public hearing.
  • I was permitted to return on 31 October 2023 after HR had delayed her 181 days. She was greeted by Ms Gregg in the foyer and consequently isolated from the DNA unit/work force and was put to work in the library until the end of January 2023. No-one was prepared to progress anything to do with the grievances and nothing was dealt with in a timely manner. I remained isolated and segregated and had no contact with HR or rehab officers on return.
  • In the library Ms Daher told me all her questions would have to go to Ms Gregg. Ms Gregg was stood down early December 2022.
  • I am currently working 3 days a week with the DNA Taskforce and 2 days a week under Linzi Wilson-Wilde in Biology.
  • The third letter to Nick Steele, he denied my claims in a letter dated 25 August emailed to me 28 August 2023, (he closed off the grievances stating she should have followed up within 3 weeks of her return to the workplace).
  • I submitted a request for a review to Mr Michael Walsh who delegated to Mr Damien Green (Acting Deputy-Director-General, Corporate Services Division). Damien requested an extension from the original 20 September 2023 until 3 November 2023 to finalise his review.
  • I had no contact with Damien until I emailed him on 8 November 2023 requesting a response by COB 09 November 2023.
  • Damien provided a response. All matters have been reviewed and address Qld Health –
  • 🡲The 181 days by HR is a fair amount of time to RTW due to obtain full medical clearance. No mention of the leave without pay that Ms Allen, Mr Howes and Ms Brisotto applied for on my behalf without my knowledge.
  • 🡲Reasonable and open to Mr Steele at the relevant time to not disturb the findings or the outcome of your original grievances communicated to you in 2018.

I was never given the opportunity to respond Mr Lok’s outcome letter as I was unwell. It was to be taken up when I returned to work. This confirmed by Phillip Hood on 31/10/2018 – (Letter 8).

  • I want to resolve the matters and resurrect my career that was by Ms Allen and her enablers (Mr Howes, XY and HR department of Qld Health.
  • Compensation for the time I was unreasonably refused the right to return to work, despite having medical clearance to return the only stipulation was that I not report to XY;
  • An acknowledgement and recognition of what has occurred in the past;
  • A review of the positions that were nominated in the WUP document – Section 4B Redesign; Ms Allen refused Ms Williams the HP4 level. I had been assigned one of the two TBA positions in this Redesign document. What is the process to address this maladministration?
  • An opportunity to address the outcome letter Mr Lok provided (12 June 2018) to my grievances of 26 May 2016 and 15 September 2017; These outstanding grievances were one reason HR determined I could not return to my substantive position.
  • A copy of my HR record;
  • A written apology and
  • A meeting with the Premier.
  1. [39]
    I note that the Commission does not have the jurisdiction to order a number of the outcomes Ms Brady seeks.
  1. [40]
    The decision being appealed was the internal review decision of Mr Green dated 9 November 2023. However, while Ms Brady’s reasons for appeal as expressed in her appeal notice demonstrate that she disagrees with Mr Green’s decision, she does not explain with clarity why the decision is not fair and reasonable. On 8 December 2023, I issued directions making it clear that Ms Brady should address that matter in her submissions.
  2. [41]
    There are two substantive matters forming the basis of the internal review decision and some ancillary matters Mr Green addresses. It is convenient to consider the parties’ submissions and reach a conclusion about each matter in turn.

Request for backpay

Ms Brady’s submissions

  1. [42]
    Ms Brady says that in her grievance lodged with Mr Steele, she sought clarification as to how she could have been accessing sick leave or accrued entitlements until she returned to work on 31 October 2022. Ms Brady said that she has been informed that it is possible for a manger to complete sick leave forms on behalf of an employee when the employee is unavailable. However, Ms Brady says she was fit, willing and available and yet she was not contacted prior to the completion and submission of 17 forms between 8 March 2022 and 30 October 2022. Ms Brady says that the forms were completed without her knowledge, without consultation and without her consent.
  1. [43]
    Ms Brady says that while Mr Green speaks about a timely resolution, delays of 181 days cannot be considered reasonable. Ms Brady says that from the beginning, she was the one leading her return to the workplace and that she had no contact with any rehabilitation officer to assist in a smooth transition. Ms Brady says that she continually requested updates on her matter and often waited weeks for a response. Ms Brady says that both she and her general practitioner were always cooperative. Ms Brady says that each time there was a request for further information, it was provided in a timely manner.
  1. [44]
    Ms Brady says that repeated questions of her general practitioner were not reasonable and that her general practitioner agreed with her that it was a delaying tactic to unreasonably prevent her from returning to her position. Ms Brady says that this was unreasonable management action taken in an unreasonable way.
  1. [45]
    Ms Brady says that neither Mr Steele nor Mr Green acknowledge that the leave forms were submitted on her behalf.
  1. [46]
    Ms Brady says that she was fit and able to return to her substantive position from 11 June 2022 and that the only stipulation was that she did not report to XY. Ms Brady says that a team member who was returning from maternity leave requested to move to another team rather than ‘be under XY’ and that when Mr Howes declined the request she resigned from her position. Ms Brady says that the remaining team member asked to be moved off XY’s team or they would have to access stress leave.
  1. [47]
    Ms Brady says that XY was no longer the supervisor of the team that her substantive position had been disbanded from. Ms Brady says the intelligence team was disbanded and XY then moved to Ms Reeves’ position as supervisor of the reporting team. Ms Brady says she had no notification that her substantive position was floated and that she was ‘in another building supervisor of a reporting team, and had been in that position since 2018’.

Respondent’s submissions

  1. [48]
    The Respondent says that in conducting the internal review, Mr Green determined that Mr Steele’s decision to decline Ms Brady’s request for backpay between 8 March 2022 and 28 October 2022 was fair and reasonable based on the circumstantial facts of the matter. Further, the Respondent says that Mr Green determined that that process and methodology employed by Mr Steele to make his decision was satisfactory and complied with all relevant procedures and the requirements of Directive 11/20 and Queensland Health HR Policy E12.
  1. [49]
    The Respondent says that the substance of the issues raised by Ms Brady regarding the delay in her return to work were thoroughly addressed in Mr Steele’s initial decision correspondence and that this was considered and confirmed by Mr Green in his decision.
  1. [50]
    The Respondent says that it was reasonably open to Mr Green to be satisfied with the response provided and he was satisfied that the delay in Ms Brady’s return to work was due to a combination of available medical information, operational requirements, and work health and safety obligations the Department must comply with.
  1. [51]
    The Respondent sets out a timeline of events regarding the process of Ms Brady returning to work following the provision of medical evidence:
  1.  On 14 February 2022, the Respondent commenced engagement with the Appellant’s General Practitioner to seek information to support the Appellant’s return to work, noting that the Appellant had been on a period of continuous leave since November 2017.
  1.  On 2 March 2022, the Appellant’s General Practitioner advised that the appellant was suffering from a medical condition and was fit to return to work in her substantive position as a Scientist, with the restriction of not working in the DNA Analysis Unit.
  1.  On 11 March 2022, the Respondent sought further information from the treating General Practitioner, based on the limited guidance the medical advice of 2 March 2022 provided.
  1.  On 31 March 2022, the treating General Practitioner advised that the Appellant was permanently restricted from working within the DNA Analysis Unit under the then current management team. Noting this advice, the Respondent was unable to return the Appellant to their substantive role at this time and commenced significant and comprehensive exploration of potential alternatives in order to support the Appellant’s timely return to work.
  1.  On 6 April 2022, an email was sent to the Appellant from Mr Adrian Tursic, then Senior HR Advisor, advising that the Respondent was considering alternative options to support her return to work.
  1.  On 17 May 2022 and 3 June 2022, Mr Tursic emailed the Appellant seeking to explore possible temporary placement or redeployment options, based on the medical advice provided.  The Appellant responded to this correspondence on 11 June 2022, providing a new medical certificate in which the Appellant’s treating General Practitioner confirmed she was able to return to a role within the DNA Analysis Unit, with the restriction that she have no direct contact with XY, the Appellant’s then line manager.
  1.  On 14 July 2022, the Respondent sought further information to understand the particulars of the Appellant’s restriction, and whether the Appellant could safely return with appropriate adjustments. On 21 July 2022, the Appellant’s treating General Practitioner advised that she was suffering from a temporary medical condition and a recovery timeframe could not be determined.  The Respondent engaged in detailed internal consultation to establish a safe and reasonable return to work arrangement, taking into account psychosocial risks including the pending COI. On 24 September 2022, the Appellant’s treating General Practitioner provided further information in regard to her fitness and capacity to return to work.
  1.  Between 31 August 2022 and 18 October 2022, consultation occurred regarding multiple alternative placement opportunities for the Appellant to access to safely return to work. The Appellant was offered these alternatives, and she declined.[13]
  1.  On 22 October 2022, the Appellant’s treating General Practitioner cleared her to return to her substantive position with no medical restrictions. Following this significantly changed medical advice and clearance, the Respondent was able to initiate the Appellant’s return to work as a priority. The Appellant was sent a letter confirming her return to her substantive position on 28 October 2022 (Attachment 13). The Appellant recommenced in her substantive role within the DNA Analysis Unit with full medical clearance on 31 October 2022.
  1. [52]
    The Respondent says that between 8 March 2022 and 30 October 2022, the Respondent submitted leave requests on Ms Brady’s behalf, noting that she did not have an approved return-to-work plan in place, due to ongoing medical restrictions reasonably preventing her from returning to the workplace and noting that alternative roles were declined during this period.  The Respondent says that in accordance with clause 1.2 of the Department’s Sick Leave HR Policy C64, it is appropriate that leave forms were submitted to reflect that Ms Brady was not at work due to her medical condition.
  1. [53]
    The Respondent says that with regard to Ms Brady’s return to work at all material times, the Respondent was guided by the medical advice provided by her treating general practitioner. The Respondent says it undertook reasonable, timely and appropriate communication with the business area to determine if and when a safe return to work could be accommodated under the restrictions required.
  1. [54]
    The Respondent says that based on the above and all available material, Mr Green was satisfied that Mr Steele’s decision not to provide Ms Brady with backpay was fair and reasonable.

Consideration

  1. [55]
    I am satisfied that Mr Green concluded that Mr Steele had given careful consideration to the matters raised by Ms Brady regarding her return to work. Mr Green properly addressed Ms Brady’s submissions that while her doctor had placed restrictions on her return to work, Ms Brady was of the view that these restrictions ought to have been accommodated by the Respondent. Mr Green considered the factors Mr Steele took into account when determining that no backpay was payable and it was open to him to confirm that decision.
  1. [56]
    I am also satisfied that it was open to Mr Green to determine that Mr Steele’s decision was made in accordance with all relevant procedures and the requirements of the Directive and relevant policy.
  1. [57]
    It is clear from the information set out in her appeal notice that Ms Brady is frustrated by the time taken between 7 March 2022 when she first sought to return to work and 31 October 2022 when she eventually recommenced.  However, the timeline makes it clear that there was ongoing communication occurring between Ms Brady, her general practitioner, the Respondent and internally within the workplace throughout this period.
  1. [58]
    Regarding Ms Brady’s complaint that leave without pay forms were submitted without her consent, I am satisfied that this matter has been addressed in the Respondent’s submissions[14] and that Ms Brady has been informed that such an action is permissible under the Department’s sick leave policy.
  1. [59]
    In circumstances where Ms Brady had been on leave for a considerable period of time and her clearance to return to work was contingent upon restrictions regarding supervision, I find that it was reasonable for the Respondent to seek clarification or further information from her general practitioner. While such enquiries of Ms Brady’s doctor may have extended the timeline for her eventual return to work, I cannot conclude that this was a deliberate delaying tactic or part of an attempt to unreasonably prevent Ms Brady from returning to her position.  I accept the Respondent’s submission that Mr Green’s decision was made on the basis that he was satisfied that any delay in Ms Brady’s return to work was due to a combination of the available medical information, the operational requirements of the Respondent and the Department’s work health and safety obligations.
  1. [60]
    I have carefully reviewed Ms Brady’s submissions regarding the process to return to work and the detailed timeline of events submitted by the Respondent.  The advice of Ms Brady’s general practitioner changed several times over the period from 14 February 2022 when engagement with Ms Brady’s doctor commenced with a view to Ms Brady returning to work. While things may not have moved as quickly as Ms Brady would have preferred, I am unable to conclude that the time taken was unreasonable when I consider the full scenario evinced by the submissions of Ms Brady and the Respondent.
  1. [61]
    I find it was open to Mr Green to determine that Mr Steele’s decision to not provide Ms Brady with backpay was fair and reasonable.  I also note that Mr Steele approved five days of pay for Ms Brady in recognition of the delay between her full clearance to return to her substantive role and the eventual recommencement of duties on 31 October 2022.

2016 and 2017 Grievance

Ms Brady’s submissions

  1. [62]
    Ms Brady says that she submitted a grievance to Mr Paul Csoban on 26 May 2016 and this was not substantiated by Mr Csoban on 5 August 2016, which she says is 10 weeks and one day after submission.  Ms Brady says she asked for an internal review of Mr Csoban’s decision on 1 December 2016 and that the matter was investigated from January to June 2017.  Ms Brady says that a response was meant to have been delivered on 12 June 2017 however this did not occur.
  1. [63]
    Ms Brady says that the management team’s treatment towards her worsened and she submitted a bullying and harassment grievance on 15 September 2017. Ms Brady says that the investigator ‘for the lack of training and development’ asked her to withdraw her second complaint made on 10 October 2017 until the first was delivered and she declined to do so.
  1. [64]
    Ms Brady says that the union requested a response from Queensland Health on 21 September 2017 and this request was answered on 10 November 2017 stipulating that the outcome for grievance would be given on 17 November 2017 and this did not occur.
  1. [65]
    Ms Brady says that while she was on maternity leave, she continued to request the outcome of the investigation.  She says that Queensland Health then decided to combine the two grievances and mailed her an outcome letter dated 12 June 2018. Ms Brady points out that this was one year and two days after the investigation had been finalised.
  1. [66]
    Ms Brady says that at this time she was on maternity leave and suffering from injuries caused by inactions of Queensland Health, primarily post-traumatic stress disorder.
  1. [67]
    Ms Brady says that the union wrote a letter on 12 September 2018 requesting that she preserve her right to respond upon return to work. Ms Brady says this was confirmed by Mr Philip Hood on 3 October 2018.
  1. [68]
    Ms Brady says the matters were meant to be addressed on her return to the workplace and that in a meeting with Acting Executive Director Ms Helen Gregg and Principal HR Business Partner Ms Josleen Daher on 31 August 2022 it was mentioned that her grievances could be addressed however this would not occur on the first day and would likely occur within the a few months.
  1. [69]
    Ms Brady says that the department was aware that there were matters outstanding and that Ms Lois Craig (Acting Director, Human Resources) mentioned in communication with Mr Moorhead from Together Queensland on 6 October 2022 that there was a grievance matter outstanding and stated that this may be pursued by Ms Brady through internal review.
  1. [70]
    Ms Brady says that she also spoke to Ms Wellard regarding the outstanding grievances during the Commission of Inquiry.  Ms Brady says that on her return to the work campus she spoke briefly to Ms Wellard and asked: if she was to be treated like another officer, being isolated from the work unit; when the outstanding grievances would be addressed, why she was being located away from the work unit and whether Ms Wellard thought Ms Allen would return to the unit. Ms Brady says that she later followed up with Ms Daher who told her that all questions would have to go to Ms Gregg.  Ms Brady says that Ms Gregg was later stood down and that she had no line manager or supervisor until the end of January when Mr Mann was assigned in a temporary manner until the Case Review team was formed in mid-February 2023.
  1. [71]
    Ms Brady says that it is convenient for Mr Green to state that good practice in managing employee grievances focuses on timely resolution.  Ms Brady asks what timely resolution is. 
  1. [72]
    Ms Brady says that Mr Green’s statement that the grievance issues were aired and addressed appropriately by Mr Lok in 2018 correspondence is negated by the fact that she has a letter from Mr Hood acknowledging her right to file an internal review until three weeks after returning to work and her advice from Ms Daher acknowledging the matter was outstanding and Ms Craig’s communication to Mr Moorhead acknowledging the grievance matter.
  1. [73]
    Ms Brady says she does not know what Mr Green’s reference to a 2011 matter relates to.
  1. [74]
    Ms Brady says while Mr Steele’s grievance decision says she was provided three weeks form her date of returning to work to lodge an internal review, she followed up with a line manager and HR and the Chief Executive Officer and was given conflicting information.

Respondent’s submissions

  1. [75]
    The Respondent says Mr Green considered Ms Brady’s ongoing concerns with her 2016 and 2017 grievances and determined that Mr Steele’s decision to not reconsider those matters was fair and reasonable on the basis that those grievances were finalised in an outcome letter provided by Mr Michael Lok, the then General Manager, Strategy, Community and Scientific Support, dated 12 June 2018.
  1. [76]
    The Respondent submits that Mr Green had regard to correspondence from Mr Philip Hood, then Acting Chief Executive Officer, Health Support Queensland, dated 3 October 2018 which persevered Ms Brady’s right to request an internal review of Mr Lok’s 2018 decision, within three weeks of returning from parental leave. 
  1. [77]
    The Respondent says that no request for an internal review was received within three weeks of Ms Brady returning to work. The Respondent says that as Ms Brady did not avail herself of the internal review process at that time, it follows that reconsideration of such matters after such time would be inappropriate.
  1. [78]
    The Respondent submits that any conflicting advice given to Ms Brady from a former Principal HR Advisor is not a confirmation that the grievances remained unresolved. The Respondent says that Mr Steele determined that the matters had been resolved, and Mr Green was satisfied that it was reasonable and open to Mr Steele to come to that view. The Respondent says that Mr Green reviewed all the material independently and was satisfied that the historical grievance issues were aired and addressed appropriately in 2018.
  1. [79]
    The Respondent’s position is that the 2016 and 2017 grievances were finalised.  As stated by Mr Green in the internal review decision, good practice in the grievance management framework protects matters from being re-agitated continually and ensures finality.  The Respondent says that Ms Brady was clearly advised that the grievance issues had been addressed in 2018, and that she had not exercised any right of review upon her return to the workplace.

Consideration

  1. [80]
    I have reviewed all the available material. Ms Brady did lodge grievances in 2016 and 2017.  I have reviewed Mr Lok’s correspondence dated 12 June 2018 where in a twenty-two-page letter, he addressed Ms Brady’s grievances. That letter informed Ms Brady of her right to a review:

Review

If you are not satisfied with my decision in relation to your complaints, you may request an internal review by the Chief Executive, Health Support Queensland.

A written request for review must:

  1. Be received by the Chief Executive within 14 days of receipt of this letter;
  1. Clearly state the reasons for dissatisfaction with the decision made through local action;

And

  1. Clearly state the action you believe would resolve the complaint.
  1. [81]
    I have also reviewed the letter Mr Hood, Acting Chief Executive Officer, sent to Ms Brady on 3 October 2018 informing her that following a request from her union:

… As usual practice within HSQ, I have determined to preserve your right to lodge an internal review until three weeks after your return to work. I have been advised that you are currently on unpaid parental leave and you are expected to return to work on 24 January 2019. Therefore, the internal review request would be due by 14 February 2019.

  1. [82]
    As it transpired, Ms Brady did not return to work until 31 October 2022. While I accept that Ms Brady may have verbally raised her ‘outstanding grievance’ or desire to have Mr Lok’s decision reviewed upon her return to work, she did not lodge a written request for review within three weeks of her return to work as required.
  1. [83]
    In circumstances where Ms Brady did not exercise her right to request a review, or in fact seek a further extension of time to do so, Mr Green determined that it was open to Mr Steele to consider Ms Brady’s grievance was addressed by Mr Lok in his letter of 2018 and that the matter was closed.
  1. [84]
    I am satisfied that Mr Green considered all the relevant material and that it was open to him to determine that Mr Steele had the appropriate delegation to consider the grievance.  Further, it was open to Mr Green to find that Mr Steele had properly complied with the grievance procedure, had considered the available information and that Mr Steele had communicated his reasons for decision in writing as required.
  1. [85]
    Mr Green acknowledged that Ms Brady attended a meeting with a former Principal HR Advisor prior to her return to work and that she says she was told that the resolution of her grievances would likely take several months. I find it was open to Mr Green to determine that this was not advice that the grievances remained unresolved. If the conversation did occur as Ms Brady states, it is possible in any case that the former Principal HR Advisor was referring to the complexity of the matters that formed the basis of Mr Lok’s 2018 decision and the time it would take to address the matter by way of an internal review if such a review were sought by Ms Brady.
  1. [86]
    I cannot find anything in Mr Green’s decision which states that Ms Brady did not have a right to lodge an application for an internal review of Mr Lok’s decision within three weeks of her return to work. 
  1. [87]
    I note Ms Brady’s submission that she is unsure what the reference in Mr Green’s letter to her exercising a right of appeal in 2011 is in relation to. I have reviewed all the material before me and I note that on page 14 of Mr Lok’s 2018 decision, he states, ‘I understand you exercised your entitlement to appeal the evaluation outcome and in communication dated 11 April 2011…you were provided with the outcome of your appeal…’.  Mr Lok went on to state, ‘I note in your complaint to the Director General, dated 1 December 2016, one of the outcomes you are seeking is, “a review of the decision to keep me at HP3 level instead of progressing me to HP4 Level”’. Mr Lok goes on to say, ‘I am of the view that your request to review a decision relating to a process which was undertaken a decade ago, and for which you exercised your appeal rights at the time, is unreasonable’.
  1. [88]
    In an email to Mr Steele on 17 March 2023, she states, among other things, ‘I request the details for the process to have the position that I held in 2008 reclassified as a HP4’. In Mr Steele’s letter to Ms Brady dated 25 May 2023, there is a section from page four headed ‘Reclassification of 2008 position’. Mr Steele references Mr Lok’s decision and states ‘… I confirm that any review of the decision at this time, would be inappropriate’.
  1. [89]
    My understanding is that the reference by Mr Green to Ms Brady exercising a right of appeal in 2011 is most likely regarding her continuing agitation of a grievance regarding the 2008 ‘Work Level Evaluation Process’. To the extent that Mr Green was confirming Mr Steele’s decision that it would be inappropriate to review a decision made by the former Deputy Director General, Human Resources Services, dated 11 April 2011, I find that this was fair and reasonable.
  1. [90]
    Mr Green’s decision refers to the principle that good practice in managing employee grievances focuses on timely resolution and that this forms the basis of the timeframes set out in the grievance framework.  It was open to Mr Green to communicate to Ms Brady that the timeframes exist to ensure that employee grievances are resolved appropriately and that issues are not continually re-aggravated by employees dissatisfied with the outcomes. In circumstances where Mr Lok’s letter addressing the 2016 and 2017 grievances notes that some of the matters Ms Brady was aggrieved about spanned a time of 8 to 10 years, I note that some of those matters would now have occurred some 15 to 17 years ago.
  1. [91]
    I am also cognisant of the submissions of the Respondent noting that FSQ has now been the subject of two separate, independent Commissions of Inquiry in 2022 and 2023 and that a range of recommendations have been made to address a history of poor management and culture within FSQ.  Mr Green addresses this specifically when he tells Ms Brady that he recognises that the matters subject of her 2016 and 2017 grievances remain a source of distress for her and notes that following the Commission of Inquiry, the workplace has changed and continues to change for the better.
  1. [92]
    I am satisfied that Mr Green’s decision to confirm Mr Steele’s response to Ms Brady’s grievance about her previous 2016 and 2017 grievances was fair and reasonable.

Other matters

  1. [93]
    With regard to those other matters Ms Brady addresses in her submissions, I firstly note that such matters are beyond the scope of this public sector appeal.  I also note Ms Brady’s distress, expressed in not only her submissions in support of her appeal but in all of the material I have read in considering this appeal.
  1. [94]
    The Respondent submits that the timeframe in the matter has been acknowledged by both Mr Steele and Mr Green and says the timeframe was ‘prolonged due to time required to appropriately consider the litany of matters raised by the Appellant and the volume of material provided’. The Respondent recognises Ms Brady’s patience in that regard.
  1. [95]
    Ms Brady says that Mr Green’s letter does not mention ‘the acknowledgement and recognition of having my career stolen for 15 years by Ms Allen, Mr Howes, XY and supported by the HR department’. Ms Brady said that she hoped that a grant of her request for backpay would help lessen the financial burden arising from a delayed transition back to the workplace.
  1. [96]
    Ms Brady seeks acknowledgement and validation of the trauma that she suffered so that she ‘may begin to face forward with what is left of my working career’. Ms Brady says that she hopes her concerns can be properly addressed as a priority and that Queensland Health can ‘take accountability for this ordeal that has spanned 15 years’.
  1. [97]
    Ms Brady says that the cost to her has been physically, mentally and financially draining. Ms Brady says that ‘all aspects of my life have been impacted; my career, my family, my friendships of which some are irreparable. Ms Brady points to a colleague who she says  ‘period of trauma was less than mine however I would like to be afforded the same respect and acknowledgement’ she received ‘with both a formal written apology and a meeting with the Premier of Queensland’.
  1. [98]
    The Respondent says that a grievance process is not an appropriate avenue for an employee to demand that Queensland Health, as an agency, ‘take accountability’ for the personal experience of an individual spanning 15 years.
  1. [99]
    The Respondent says that appropriate accountability and recognition of the workplace culture occurred during the 2022 Commission of Inquiry, and steps have been taken to move the workplace forward in accordance with the COI recommendations. The Respondent submits that Mr Green acknowledged Ms Brady’s feelings of distress with respect to the workplace and reaffirmed that the cultural issues which existed at the facility had been well ventilated and aired during the 2022 COI. Mr Green encouraged Ms Brady to engage with the positive changes occurring in the workplace and thanked Ms Brady for bringing matters to his attention.
  1. [100]
    The Respondent says that Ms Brady’s ongoing personal views about the toxic culture in the laboratory and her feelings about historical decisions made (including some as long ago as 2008) in relation to which she did not exercise a right of review, do not provide an appropriate basis for an appeal. The Respondent also says it continues to hold a view that the workplace has changed and continues to improve through positive collaboration between employees and leadership teams. The Respondent encourages Ms Brady to move forward in her employment as part of the changes occurring in the workplace.
  1. [101]
    I will not seek to address Ms Brady’s desire to have matters spanning 15 years of her personal and professional life dealt with in a way that will enable her to move forward.  It is not my place to do so in an external review relating to the decision not to re-open grievances from 2016 and 2017 or the decision not to provide backpay following the Ms Brady’s return to work. I simply note the submissions above for completeness and so that Ms Brady and the Respondent are aware that their submissions have been considered in their entirety.

Conclusion

  1. [102]
    The Respondent submits that an internal review of a grievance is a review of the reasonableness of the initial decision-maker’s decision in the circumstances and is intended to assist an employee in understanding how a decision was reached in the event the decision is confirmed.  The Respondent says Mr Green determined that the actions taken by Mr Steele and his decision were fair and reasonable and confirmed Mr Steele’s decision. I am satisfied that Mr Green’s internal review decision, when read with Mr Steele’s grievance letters, provides Ms Brady with satisfactory information to understand why Mr Green arrived at the decision regarding both the 2016 and 2017 grievances and the decision not to provide her with backpay.
  1. [103]
    The Respondent says that the time taken by Mr Green to consider and respond to the review request was reasonable given the volume of information and history of correspondence in the matter. The Respondent reiterates that Mr Green complied with all relevant instruments except for a minor delay in the decision to 9 November 2023. The Respondent says that the decision has provided Ms Brady with reasons for Mr Green’s views and why no further action would be taken. The Respondent submits that ultimately, a difference of opinion as to the outcome of a decision of a delegate does not serve to make it unfair or unreasonable. I have reviewed all the correspondence regarding Ms Brady’s internal review request and the I am satisfied that any delay in the provision of Mr Green’s internal review decision does not serve to make the decision not fair and reasonable. It is not unusual for an Appellant to be very dissatisfied with the outcome of a grievance or an internal review, however I agree with the Respondent that a difference of opinion regarding the outcome of such matters does not serve to make the outcome unfair or unreasonable.
  1. [104]
    This external review of Mr Green’s decision is not the avenue for Ms Brady to pursue apologies, a meeting with the Premier or a copy of her human resources record.  Matters regarding the ‘Redesign’ document and a review of positions and documentation as to why her substantive position was disbanded without her notification are outside of the scope of this appeal.  However, as noted above, matters regarding the 2008 review have been subject of an appeal from Ms Brady and are now closed.  In any case, Ms Brady’s appeal has been unsuccessful and therefore I decline to order any of the remedies she seeks which are within the Commission’s jurisdiction.
  1. [105]
    This appeal required me to review Mr Green’s decision to uphold the decision/s of Mr Steele. For the foregoing reasons, I find that Mr Green’s decision was fair and reasonable. The decision appealed against is confirmed.

Order

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

Footnotes

[1]At a mention to discuss the application for suppression subject of Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 063, the parties agreed that it would be appropriate to refer to Forensic Science Queensland as it is currently named when referring to events or circumstances which followed the change of name from Forensic Scientific Services. I have included this change in republishing the decision following my decision to grant the application for suppression.

[2]Respondent’s submissions filed 12 January 2024, Attachment 1.

[3]The Respondent understands this period to encompass late October 2022 to late January 2023.

[4]Respondent’s submissions filed 12 January 2024, Attachment 2.

[5]Ibid Attachment 4.

[6]Ibid Attachment 5.

[7] Ibid Attachment 6.

[8]Ibid Attachments 8-9.

[9]Ibid Attachment 10.

[10]Delegation 27.1 of Qld Health HR Delegations Manual; Directive 11/20 Individual employee grievances cl 9.

[11]I have not corrected spelling or grammatical errors. I note that at various times Ms Brady refers to herself in the first or third person. I am satisfied that references to ‘she’ and ‘her’ are references to Ms Brady herself where this is the sensible way to read such references.

[12]In Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 063, I granted a suppression order to de-identify XY.

[13]Attachment 12 to the Respondent’s submissions is an email dated 6 September 2022 where Ms Brady declines an offer to return to work in a project role.

[14]See paragraph [52] above.

Close

Editorial Notes

  • Published Case Name:

    Brady v State of Queensland (Queensland Health) (No. 1)

  • Shortened Case Name:

    Brady v State of Queensland (Queensland Health) (No. 1)

  • MNC:

    [2024] QIRC 35

  • Court:

    QIRC

  • Judge(s):

    Pidgeon IC

  • Date:

    14 Feb 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

No judgments cited by this judgment.

Cases Citing

Case NameFull CitationFrequency
Brady v State of Queensland (Queensland Health) (No. 2) [2024] QIRC 632 citations
1

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