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Cunnington v State of Queensland (Queensland Health)[2024] QIRC 5

Cunnington v State of Queensland (Queensland Health)[2024] QIRC 5

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Cunnington v State of Queensland (Queensland Health) [2024] QIRC 5

PARTIES:

Cunnington, Timothy

(Appellant)

v

State of Queensland (Department of Employment, Small Business and Training)

(Respondent)

CASE NO.:

PSA/2023/58

PROCEEDING:

Public Sector Appeal – Fair Treatment Decision

DELIVERED ON:

17 January 2024

HEARING DATE:

On the papers

MEMBER:

Power IC

HEARD AT:

Brisbane

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 SERVICE APPEAL – appeal against a fair treatment decision – where appellant lodged a grievance in accordance with Directive 11/20 – where appellant requested a review of decision – local action decision issued – a review sought by appellant – internal review decision confirmed local action decision – whether internal review decision was fair and reasonable – decision fair and reasonable

LEGISLATION:

Industrial Relations Act 2016 (Qld), ss 562B and 562C

Public Sector Act 2022 (Qld), ss 91, 289 and 324

CASES:

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

Goodall v State of Qld & Anor [2018] QSC 319

Reasons for Decision

Introduction

  1. [1]
    Mr Timothy Cunnington ('the Appellant') is employed by the State of Queensland (Department of Youth Justice, Employment, Small Business and Training) ('the Respondent') as Manager of the North Coast Region.
  1. [2]
    In March 2022, the Respondent requested that the Appellant move from a private office to work in an open plan arrangement. The Appellant objected to this and subsequently was absent from the workplace on three months sick leave.
  1. [3]
    The Respondent backfilled the Appellant’s position while he was on sick leave.
  1. [4]
    The Appellant returned to work on 5 December 2022 and was directed to go on sick leave on the basis that he had not provided a medical clearance confirming his fitness for work.
  1. [5]
    The Appellant lodged a grievance that was subject to a Stage 1 local action decision and a Stage 2 internal review decision. The Appellant filed an appeal against the Stage 2 internal review decision (‘the IR decision’). 
  1. [6]
    The appeal is made pursuant to s 134 of the Public Sector Act (‘PS Act’) which provides that an appeal under Ch. 3, Pt 10 of the PS Act is to be heard and determined pursuant to Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.

Appeal principles

  1. [7]
    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. [8]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination is whether the internal review decision ('the IR decision') made by Mr Koch was fair and reasonable.
  1. [9]
    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. [10]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. (a)
    confirm the decision appealed against; or
  1. (b)
    set the decision aside and substitute another decision; or
  1. (c)
    set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Grounds of appeal

  1. [11]
    In the appeal notice, the Appellant stated that he remained dissatisfied with the outcomes of his grievance and considers that the IR decision was unfair and unreasonable.

Submissions

  1. [12]
    The Commission issued a directions order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

Appellant's submissions

  1. [13]
    The Appellant makes the following submissions regarding the incident of 5 December 2022[5] -
  • Since March 2022 the Appellant has been involved in an ongoing dispute (‘the dispute’) with the Respondent in respect to his workstation location within the Maroochydore office.
  • Following the provision of the Appellant’s medical information to the Respondent regarding the dispute, the Respondent requested that the Appellant provide confirmation from a medical practitioner that the Appellant was fit to attend work to complete work duties.
  • On 25 August 2022 the Appellant’s GP provided a Worker Capacity Certificate indicating that the Appellant was unfit for work for the period 26 August 2022 to 30 September 2022.
  • Two further Worker Capacity Certificates were issued and sent to the Respondent with the total absences recorded on these certificates being the period 26 August 2022 to 2 December 2022.
  • The submission of these certificates enlivened the Respondent's obligations under the DESBT HR 10.4 Mental Health and Wellbeing Policy, the HR.09 Workplace Rehabilitation Policy and the employer obligations under WorkSafe Queensland, Principle 5 of ‘Guidelines for standard for rehabilitation’ to make initial contact as early as possible with an injured worker and then ongoing regular contact with them. The purpose of this is to keep them connected to the workplace and plan/organise for the workers return to work. The employer did not contact the Appellant at all in respect to his illness/injury nor his return to work at any time during this period.
  • On 11 November 2022 the Appellant was contacted via text by the Chief HR Officer, Ms Stewart, in respect of the ongoing dispute. Ms Stewart advised that the correspondence for the Appellant’s medical specialist was ready and sent a copy to the Appellant. After noticing that the attachments had not been included, the Appellant phoned Ms Stewart to discuss the missing attachments and to discuss the nominated reply date. During this phone conversation the Appellant advised Ms Stewart that he was returning to work on 5 December 2022.
  • On 14 November Ms Stewart emailed the Appellant and acknowledged the Appellant’s return to work on 5 December 2022, stating -

Can I just mentioned that as per Glen Brown’s email of 24 August, you will still need to provide written confirmation from Dr Beak that you are fit to attend work to complete work duties including engaging in discussions with your line managers and human resources regarding your request to remain in your current office.

  • Ms Stewart mentioned the previous direction from Mr Brown’s email as opposed to giving the Appellant any direct instructions from herself (as the Chief HR Officer) as to what was needed for the Appellant’s return to work.
  • The previous direction of Mr Brown did not relate to a return-to-work situation but rather related to a situation where the Appellant was already in the workplace. Ms Stewart had an opportunity to formally instruct the Appellant on anything that she wanted in respect of the Appellant’s return to work, but she did not.
  • The Appellant considered that as Ms Stewart had referred him back to Mr Brown’s email then the 7 calendar daytime period to provide written confirmation could be reasonably applied as commencing upon his return to the workplace on 5 December 2022 noting that the Respondent was prepared to allow the Appellant to be at work when the written confirmation was originally sought in August 2022.
  • The Appellant’s sick leave had ended on 2 December 2022 and so he returned to work at 7.15am on 5 December 2022 having in his possession a medical clearance establishing his ‘fitness for duty’.
  • At approximately 8.40am on 5 December 2022, the Appellant received a call from Ms Stewart asking him if he was in the office and then instructing him to leave the office. At 1.45pm the Appellant received an email from Ms Stewart stating that “You will remain on sick leave until such time as I receive and consider the medical clearance and advise that you may return to work”.
  1. [14]
    The Appellant’s grievance relates to the local decision and the subsequent IR decision. The Appellant is dissatisfied with the findings that the local decision by Mr Redhead was fair and reasonable on the basis that Mr Redhead made concessions about confusion, miscommunication and assurances that the circumstances will not happen again.
  1. [15]
    The Appellant makes the following submissions regarding the internal review decision:[6]
  • The Grievance Stage 1 local action process was not commenced and handled in accordance with the Department’s Grievance process and the associated PSC directive. These process indicate that a decision on a grievance needs to be made as soon as possible but must be made within 28 days and regular and timely contact should be made with the parties updating them as to the grievance progress. On day 21 the Appellant received an outcome decision that advised that the grievance had been accepted and would be progressed to being investigated via the local action process. This is unfair and unreasonable as the grievance should have been actioned immediately rather than treated as an application for a grievance.
  • The decision to remove the Appellant from the workplace was unfair and unreasonable.  The Respondent has been unable to provide any written authority for the Appellant to provide a medical clearance for their ability to instruct him to leave the workplace. The decision was supposedly based on concern for their employee duty of care obligations under the Work Health and Safety Act 2011 as they were unsure as to the Appellant's fitness for work.
  • When Ms Stewart contacted the Appellant and instructed him to leave the workplace, she was informed by the Appellant that he had a full medical clearance indicating that he was fit for work but she did not ask for it. 
  • The Appellant submits that the Respondent did not comply with the requirement under the WH&S Act to ensure the safety of work ‘so far as is reasonably practicable’ as they did not ask for his medical clearance.
  • The Respondent did not consider the Appellant’s psychological health in this decision.  The decision to remove the Appellant’ from the workplace due to their primary duty of care obligations under the WH&S Act is flawed as they have given no consideration to the Appellant’s psychological health.
  • The Respondent’s policy - HR 18 Fitness for Duty, alcohol and other drugs policy states “If an employee attends a workplace and is considered by a manager to be unfit for work, suitable transport will be arranged to the employee’s residence or chosen medical facility at the expense of the department”. The policy defines ‘Fitness for Duty’ as ‘a broad concept and deals with the relationship between a worker and their ability to do their role in the job safely and competently’. The Appellant submits that on 5 December 2022 he had the ability to do his role safely and competently and had evidence to prove it, meeting the definition of ‘Fitness for Duty’. If the Respondents had met their obligations to organise and plan his return to work this would have avoided this matter.
  • The Appellant had the medical clearance that was required and the decision makers were aware of this yet did not ask for it, in doing so they have not afforded the Appellant procedural fairness and natural justice in their decision making.
  • The initial response to the grievance included statements of ‘you otherwise provide no further evidence or examples’; ‘you have not explained why’ and ‘you did not identify’. If these points where missing or needed further information or clarification, why wasn’t I contacted by the investigator to ascertain this.
  • The internal review decision did not take the ’Glen Brown email’ into context.
  • The employer is a public entity and is bound by the Human Rights Act 2019 which provides that it is unlawful for a public agency to act or make a decision in a way that is not compatible with human rights, or to fail to give proper consideration to a human right. It has been acknowledged in the outcome of the Appellant’s grievance as a fact that there is no evidence that the decision makers (Ms Jones and Ms Stewart) gave any consideration to the Appellant’s human rights in making their decisions. The Appellant contends several human rights would have been relevant including the right to privacy and reputation and right to protection from torture and cruel, inhuman or degrading treatment. The Appellant submits that the decision on 5 December 2022 was degrading treatment which left him humiliated and the Respondent cannot support this decision as being fair and reasonable when they have not complied with these legislated obligations.
  • The Appellant submits that there is no legal basis for directing an employee to take sick leave. The reviewer supports a view that Ms Stewart should have placed the Appellant on special leave and as such the original decision could not have been fair and reasonable.
  • With respect to higher duties approval for backfilling of the Appellant during his absence, the Respondent stated that “the approved higher duties period ended on 30 November 2022 and was due to expire and the Department did not know for sure at that time whether you would return to work on 5 December or intended to extend sick leave”. The Respondent should have applied due diligence and found out definitively if he was going to return by asking him directly.

Respondent's submissions

  1. [16]
    The Respondent made the following submissions, in summary:[7]
  • In March 2022, the Appellant was the only employee with a private office in the workplace. Other employees in the workplace, including his supervisor Ms Jones, A/Regional Director, worked in open plan. On or about 24 March 2022, Ms Jones proposed to the Appellant that he move to the open plan area so the team could use the private office for meetings and confidential discussions (‘the proposal’).
  • In response, the Appellant emailed Ms Jones that the proposal was ‘... unreasonable, unjustified, unnecessarily disruptive and not considerate of my psychological safety in the workplace and my work-related psychological health’. Ms Jones paused the proposal to allow the Appellant to obtain medical evidence. On 24 August 2022, the Appellant was asked to provide a medical clearance to continue attending the workplace. While the Respondent was consulting with the Appellant about his medical evidence, he took sick leave from 25 August 2022 to 2 December 2022.
  • During the Appellant’s absence the Respondent appointed another employee to perform the position as higher duties to ensure its operational requirements were met. That arrangement had no material affect on the Appellant and did not delay his return to work.
  • On 14 November 2022, Ms Stewart, Chief HR Officer, emailed the Appellant in relation to earlier correspondence, and explained that he would ‘need to provide written confirmation from Dr Beak (the Appellant’s GP) that you are fit to attend work’. That email did not expressly state how far in advance of his return to work the clearance was required.
  • The Appellant clearly understood Ms Stewart’s email was a direction to obtain a medical clearance to return to work, given that he confirmed he would ‘seek the clearance requested’, and he subsequently obtained a medical certificate about his fitness for work, dated 1 December 2022.
  • The Appellant attended the workplace on 5 December 2022 following three months’ absence with a physical medical certificate dated several days prior. He had not previously provided that certificate to the Department. The Department, conscious of its work health and safety obligations, sent the Appellant home temporarily so it could consider the new evidence and determine whether an on what terms he could safely return to work. The Department approved his clearance the next day and the Appellant returned to work on 7 December 2022.
  • The Appellant was given paid special leave for 5 and 6 December 2022.
  • The Appellant lodged a grievance about the 5 December 2022 incident that was subject to a decision and a subsequent internal review decision. The internal review decision confirmed, in short, that:
  1. The events of 5 December 2022 were unfortunate. Communications between the Department and the Appellant about his medical clearance could have been clearer. Relevant Department processes are being updated to ensure greater clarity in future similar circumstances.
  1. The requirement for the Appellant to return home while the Department considered his fitness to attend the workplace, and the temporary backfilling of his position, were fair and reasonable.
  1. The appropriate outcomes from the grievance had been determined. The Appellant was given paid special leave for 5 and 6 December 2022, and relevant Department processes are being improved. The outcomes sought by the Appellant (including being provided a copy of the Department's legal advice) were not appropriate.              
  • The Respondent submits that this Appeal should be dismissed because the decision was fair and reasonable, the Appeal lacks utility because there is no suitable proposed or apparent remedy, and aspects of the Appeal are beyond the jurisdiction of a public service appeal.
  • The Respondent submits that the Appellant’s submissions rehash the matters in the decision without establishing why the decision was unfair or unreasonable and does not explain what reasonable outcome he seeks from this Appeal, evidencing the Appeal’s lack of utility.
  1. [17]
    The Respondent made the following submissions regarding the higher duties arrangement:
  • The higher duties arrangement was entirely fair and reasonable.
  • The Appellant cannot appeal against the higher duties arrangement because he is not relevantly aggrieved as required by s 133(d) of the PS Act. In considering ‘person aggrieved’, the High Court explained the question is whether ‘the decision will have an effect on his or her interests which is different from (‘beyond’) its effect on the public at large.’
  • The ‘aggrieved’ hurdle to commencing a public service appeal serves a clear purpose – to prevent a person appealing a decision which has no material impact on their interests, and so limit unnecessary litigation. Certainly, the Appellant disagrees with the decision, and the backfilling pertained to his position while he was away. That does not mean the decision materially impacted his interests, or that he has standing to appeal that decision.
  • The Appellant is prevented from appealing the Higher Duties Arrangement. That decision concerned the Department’s resourcing to ensure the duties and responsibilities of the position were fulfilled during the Appellant’s absence (s 132(s)). Further, the higher duties arrangement involved the selection of a public sector employee to work in the position while the Appellant was absent. This aspect of the appeal should be dismissed.

5 December 2022 incident

  • The Appellant appears to submit that Ms Stewart did not issue him a direction to obtain new medical evidence, but only reiterated a previous direction. Firstly, this is plainly not what the Appellant thought of Ms Stewart’s direction at the relevant time. Second, the Appellant’s alleged confusion about when he was to provide a medical clearance was resolved in his favour – he was given two days’ paid special leave and not required to take sick leave by the Department. Third, the decision already found that the communication could have been clearer, and so relevant processes have been updated.

Miscellaneous Issues

  • The Appellant submits that ‘My employer did not contact me at all in respect to my illness/injury nor my return to work at any time (during his absence from 26 Aug – 2 December 2022). This is incorrect and has no bearing on the decision’s fairness and reasonability.
  • The Appellant submits that the decision could not have been fair and reasonable because the Department determined that it would improve relevant processes. A decision is not unfair or unreasonable merely because as part of undertaking the decision-making process areas for operational improvements were identified. The Department’s recognition that it would improve its processes is not tantamount to conceding a decision was unfair or unreasonable.
  • The Appellant submits that the Department was obligated to finalise his grievance within 28 days. First, the Appellant already consented to an extension of the relevant timeframe, so there is no relevant decision on this point to appeal. Second, his interpretation is a misapprehension of what must occur during the relevant timeframes. The Department is required to make ‘a decision about an individual employee grievance’(cl 9.1(d) of the Grievance Directive). For simple grievances, that decision may be an outcome. Here, the decision was that the grievance could be subject to an external investigation. That is not an uncommon or unusual decision and was reasonable in the circumstances. The interpretation proposed by the Appellant, that the Department must issue an outcome about the grievance within 28 days, must be rejected. Many grievances require investigation processes or external referrals which cannot be completed within 28 days, and the Department cannot rely upon the consent of the complainant to facilitate those processes (some of which are mandated by statute). Third, even if the Appellant’s interpretation were correct, that would not render the decision unfair or unreasonable.
  • The Appellant submits the Department could not direct him to provide a medical clearance (after three months’ absence) or leave the workplace. The Department has a duty to provide a safe and healthy workplace so far as reasonably practicable (s 19 Qld Health and Safety Act 2011) and a commensurate power to issue employees with lawful and reasonable directions. That common law power was mirrored in the then-applicable Public Service Act 2008 s 26(1)(l) in concert with the Public Service Code of Conduct cl 4.1(d) and the Work Health and Safety Act 2011 at s 28(c) and (d).
  • The relevant directions were lawful because there were not unlawful and were within the scope of employment.[8] The directions were reasonable because of the Department’s work health and safety obligations, the Appellant having been away sick for an extended period, and his attendance at the workplace without first providing a medical clearance. Further, the appellant was provided with paid special leave for 5 and 6 December 2022.
  • The Appellant submits that the 5 December 2022 incident involved the Department breaching his human right to ‘protect from torture and cruel, inhumane and degrading treatment’. A breach of the Human Rights Act 2020 is not prosecutable through a public service appeal with the relevant processes existing within the HR Act. 

Appellant’s submissions in reply

  1. [18]
    The Appellant made the following submissions in reply:[9]
  • The Respondent’s submit that relevant departmental processes are being updated to ensure greater clarity yet cannot advise of any process or policy/procedure that would have provided me with the clarity in the first place.
  • The Appellant contends that the decision had no legal basis and their ultimate review has established significant department shortcomings. The respondent appear to offer some broad concessions around the process but is not prepared to admonish senior officers nor concede that their decisions were unfair and unreasonable.
  • The Respondent acknowledged that the email did not expressly state how far in advance of his return to work the clearance was required. The reality is it did not mention any timeframes whatsoever. It did link to a previous email that had a 7 daytime included.
  • I question here why it is needed as they were already communicating with me re work matters whilst I am on sick leave, thus no concerned from my workplace health and safety in potentially aggravating my workplace injury whilst I am on approved sick leave.
  • When the decision was made to have someone do higher duties the decision maker would have had no evidence that I was taking any further leave and the Aurion time management system would have identified me as returning.
  • It was I who told them I was returning and it is relevant as these non contact failings led to the incident on five December 2023.
  • The Respondent relies on their workplace health and safety obligations but does not provide any sections, policies, directives etc for this reliance, nor do they address how they accounted for my psychological health in their decisions.
  • I do not submit that the decision makers breached my human rights, rather that the decision makers did not meet their obligations under the Human Rights Act 2019 to give proper consideration to my human rights as they are required to do in their decision making processes. I then identified what may be applicable human rights that they needed to consider and explain to the reality of their decisions impact on me. In this matter it was a legislated obligation for the decision makers to give proper consideration to my human rights as part of their decision making process, so I consider these values need to be taken into account in determining if their decisions were fair and reasonable.
  • The respondent has indicated three times that improvements are being implemented so relevant processes have been updated. I can find no published improvements and or new policies and procedures relating to these matter. I have been waiting on them with interest to see how they got around the opening of ‘pandora’s box’ in mandating medical clearances, considering the associated issues around privacy and human rights, let alone establishing how long is the absence., what type of conditions need clearances, the cost associated with directing employees to obtain medical clearances, their ability to explore the well used statement of a ‘medical condition’ etc.
  • The respondent has a health and well being policy and they did not meet their obligations to me under this policy, they were informed that I had a medical clearance, yet it was not asked for.
  • A further decision directing me to ‘remain on sick leave’ was made despite there being no legal basis for an employer to direct an employee to take their sick leave entitlements. This decision further traumatised me as I am a cancer survivor in remission and value my sick leave to have it available if or when my incurable cancer returns.

Consideration

  1. [19]
    Consideration of an appeal of this kind requires a review of the IR decision to determine if the decision was fair and reasonable in the circumstances.
  1. [20]
    The background to the decision involved an ongoing disagreement between the parties in relation to the Appellant’s workstation location within the Maroochydore office. The Appellant was the only employee with a private office in a workplace in which other employees, including his supervisor, Ms Jones, worked in open plan. In March 2022, Ms Jones proposed that the Appellant move to the open plan area so the team could use the private office for meetings and for confidential discussions.
  1. [21]
    The Appellant emailed Ms Jones advising that the proposal was “… unreasonable, unjustified, unnecessarily disruptive and not considerate of my psychological safety in the workplace and my work-related psychological health”.
  1. [22]
    Ms Jones paused the proposed office change to allow the Appellant to obtain medical evidence and on 24 August 2022, the Appellant was asked to provide a medical clearance confirming that he was fit to attend work and complete his work duties. The Appellant provided a medical certificate indicating that he was unfit for work for the period 26 August 2022 to 30 September 2022 and two further certificates were provided for the period from 30 September 2022 to 2 December 2022.

Contact whilst on leave

  1. [23]
    The Appellant submits that the submission of these medical certificates enlivened the Respondent’s obligations under the HR.09 Workplace Rehabilitation Policy. He also submits that the employer obligations under WorkSafe Queensland were enlivened, which require the employer to make initial contact as early as possible with an injured worker, and to maintain regular, ongoing contact with them. The Appellant submits that the   employer did not contact him at all in respect of his illness nor his return to work at any time during his period of sick leave.
  1. [24]
    On 11 November 2022 the Appellant was contacted via text by the Chief HR Officer, Ms Stewart, regarding the office dispute. The details of this conversation are uncontentious. Ms Stewart advised that the correspondence to the Appellant’s medical specialist was ready and a copy was sent to the Appellant. The Appellant phoned Ms Stewart to discuss attachments to the email and the nominated reply date. During this phone conversation the Appellant advised Ms Stewart that he would be returning to work on 5 December 2022.
  1. [25]
    The Department’s Health and Wellbeing Policy[10] has an expectation that managers and supervisors maintain regular contact with employees during a period of sick leave. The difficulty with applying the policy strictly in this matter is that the Appellant’s manager was closely connected to the circumstances which gave rise to the Appellant’s medical condition and his requirement to take sick leave.
  1. [26]
    The IR decision considered the circumstances involving the Appellant’s manager, Ms Jones, stating:

You took the period of sick leave in 2022 following a request from Ms Jones that you move out of an office which you were working in and work open plan with the other Department employees at the Maroochydore office. Following Ms Jones’ request for you to move out of your office, you declined to do so and said that you wanted human resources to be involved, after which human resources engaged with you about the planned office move. Your medical certificates cited the planned change to the working environment and going open plan as the mechanism of your injury. In those circumstances and in the absence of a medical clearance, I consider it reasonable that Ms Jones would be cautious about communicating with you during your absence (and the instruction for you to leave the workplace).

  1. [27]
    Whilst an employee’s manager should endeavour to make contact with the employee during a period of sick leave, the circumstances surrounding the employee's absence must be taken into consideration. Given that the medical evidence indicated that Ms Jones's proposals had formed the basis of the Appellant's condition, it was not unreasonable for Ms Jones to not contact the Appellant during his period of sick leave. One could imagine such contact may well have exacerbated the Appellant’s symptoms.
  1. [28]
    I note that Ms Stewart contacted the Appellant on 11 November 2022 regarding correspondence to be provided to the Appellant’s medical specialist. The Appellant contends that this contact was to address the substantive issue regarding fitness to engage in discussions about the proposed office changes and was not specifically initiated as part of the Department’s obligation to maintain contact with an employee on sick leave. The motivation for the contact does not render the contact irrelevant. Contact was made by the Department and if the Appellant’s circumstances had changed in terms of his future intentions, he had an opportunity to raise it with Ms Stewart at this time.

Instruction to leave workplace on 5 December 2022

  1. [29]
    On 5 December 2022 Ms Stewart phoned the Appellant and instructed him to leave the DESBT Maroochydore workplace. The initial decision on the Appellant’s grievance by Mr Redhead, A/Head of Corporate, indicates that Ms Stewart’s decision was made in consultation with Ms Jones.
  1. [30]
    The Appellant was aggrieved by this decision on the basis that he had a medical clearance with him at the time and he had told the Department that he was returning on 5 December 2022. The Appellant submits that he had not been advised that the clearance was required prior to his return, and he was unaware of any directive, policy, or instruction outlining such a requirement.
  1. [31]
    During a phone conversation between Ms Stewart and the Appellant on 11 November 2022, the Appellant advised that he was going to return to work on 5 December 2022. On 14 November 2022 Ms Stewart emailed the Appellant and acknowledged the Appellant’s intention to return to work on 5 December 2022, stating –

“Can I just mention that as per Glen Brown’s email of 24 August, you will still need to provide written confirmation from Dr Break that you are fit to attend work to complete work duties including engaging in discussions with your line managers and human resources regarding your request to remain in your current office.”

  1. [32]
    The Appellant submits that Ms Stewart referred to the previous direction from Mr Brown’s email as opposed to giving the Appellant any direct instructions from herself (as the Chief HR Officer) as to what was needed for the Appellant’s return to work. It is unclear why the Appellant considered that Ms Stewart was required to provide ‘direct instructions from herself’ rather than referring him to previous directions from a HR employee, Mr Brown, regarding the return-to-work requirements. It is clear that Ms Stewart’s instructions were synonymous with those previously provided by Mr Brown, hence her reference to his previous email.
  1. [33]
    Mr Brown’s email of 22 August 2022 stated the following:

While the Department is keen to resolve the issue of your work location within the office as soon as possible the Department wants to minimise any impacts on your mental health. Could you please provide written confirmation from Dr Break that you are fit to attend work to complete work duties including engaging in discussions with your line managers and human resources regarding your request to remain in your current office. You are required to provide the written confirmation within 7 calendar days.

  1. [34]
    It is clear that the Appellant understood Ms Stewart’s email to be a direction to obtain a medical clearance as he confirmed he would ‘seek the clearance requested’ before obtaining a medical certificate confirming his fitness for work on 1 December 2022. It was open to the decision maker in the IR decision to determine that the email of Glen Brown had been considered.
  1. [35]
    I note that it was determined in the decision by Mr Redhead that the Department was not aware that the Appellant was returning to work on 5 December as no medical clearance had been provided. This was based upon the previous periods of sick leave in which the Appellant had not advised the Department whether he intended to extend the period of sick leave prior to the leave period ending, and only notified the Department of the extension to his sick leave on the morning that the previous period of leave finished. In these circumstances, and given that no medical clearance had been received, it was not unreasonable for Ms Stewart to consider that the Appellant may have decided to extend his period of sick leave again on 5 December 2022.
  1. [36]
    The Appellant submits that the Department was not able to direct him to provide a medical clearance. The IR decision determined that Ms Jones and Ms Stewart were obliged to comply with the work health and safety requirements outlined in the Work Health and Safety Act 2011 ('the WHS Act'), which includes ensuring that employees of the Department are fit to attend and perform work.
  1. [37]
    The Department has a statutory obligation to ensure the health and safety of its workers so far as reasonably practicable in accordance with s 19 of the WHS Act. In addition, in its role as the Appellant’s employer the Department has the power to issue lawful and reasonable directions within the scope of employment. The WHS Act includes a specific reference to such a power in s 28 which provides the following –
  1. While at work, a worker must—
  1. (a)
    take reasonable care for his or her own health and safety; and
  1. (b)
    take reasonable care that his or her acts or omissions do not adversely affect the health and safety of other persons; and
  1. (c)
    comply, so far as the worker is reasonably able, with any reasonable instruction that is given by the person conducting the business or undertaking to allow the person to comply with this Act; and
  1. (d)
    co-operate with any reasonable policy or procedure of the person conducting the business or undertaking relating to health or safety at the workplace that has been notified to workers.[11]
  1. [38]
    If an employee has been absent from the workplace for an extended period of time on sick leave, it is possible that returning to the same environment when unfit to do so may result in an aggravation of an existing injury, or a further injury. To avoid such an occurrence, and to ensure compliance with the WHS Act, it is entirely appropriate that a medical clearance be sought.
  1. [39]
    In the Appellant's circumstances, it was fair and reasonable for the Department to determine that a medical clearance was required prior to the Appellant’s return to the workplace. Accordingly, the direction to leave the workplace until the medical clearance could be provided and considered by the Department was lawful and reasonable.
  1. [40]
    The Appellant submits that he had acquired the medical clearance at the time, but that Ms Stewart did not ask him to provide it to her. This lack of initiative demonstrated by a senior employee is perplexing. One would reasonably expect that following receipt of an email directing the Appellant ‘to provide written confirmation’ from his doctor that he was fit to attend work, the Appellant would have emailed the clearance prior to his return to the workplace. In circumstances where Ms Stewart had not seen the medical clearance but was aware that the Appellant’s medical condition had emanated from the workplace, her decision to direct the Appellant to leave until such time as the clearance could be considered was appropriate. I am not persuaded by the Appellant’s submissions that Ms Stewart did not consider his psychological health when making this decision. It seems to me that the entire basis for the decision was the consideration of the Appellant’s psychological health. In circumstances where the Appellant has been on extended sick leave for reasons arising from that particular workplace, it is entirely possible that a premature return to the same environment could trigger further symptoms. Ensuring that the risk of that occurring is minimised pending clearance from a doctor is fair and reasonable.
  1. [41]
    The initial decision by Ms Stewart was that the Appellant’s absence would be considered sick leave, however, the Department subsequently determined that the two-day absence should be treated as special leave for which the Appellant was paid. This was a reasonable action taken by the Department in recognition of the apparent confusion as to the length of time prior to the Appellant’s return that the clearance was required.
  1. [42]
    The IR decision determined that whilst the decision to require a medical clearance was fair and reasonable, the communication around how far in advance the clearance was required could be improved. The decision to review the Department’s policies and procedures regarding its expectations around the provision of medical clearances was fair and reasonable.

Grievance procedure

  1. [43]
    The Appellant submits that the Respondent did not comply with the Individual Employee Grievances Directive (the Directive) in its handling of his grievance on the basis that a decision was not made within 28 days. It is clear that a decision was made within 28 days, with Mr Lucas, A/Deputy Director-General, Engagement, reviewing the grievance and referring the matter to Mr Redhead   for investigation and decision. The Appellant was informed of this on 27 February 2022, and consented to a month’s extension.
  1. [44]
    The IR decision outlined the following consideration of this concern:

The outcome of stage 1 local action may require various decisions to be made. In your matter, it was appropriate for there to be initial consideration as to how best to action your Grievance, that resulted in a fact-finding exercise as to what had transpired to then enable a final decision to be made. Together, the decision of Mr Lucas and Mr Redhead formed the stage 1 – local action. While ideally the Department would like to have a final resolution stage 1 within a 28 day timeframe, this is not always possible. I consider that it was reasonable for your Grievance to be reviewed, considered, investigated, and the Decision provided within a period of less than two months.

  1. [45]
    In most instances, simple grievances will be resolved by a decision within a 28-day timeframe. However, in circumstances involving the use of an external investigator, as was the case in this matter, it is not unusual for the final decision to be given beyond that timeframe. Clause 9.1(d) of the Directive provides that the Department is required to make ‘a decision about an individual employee grievance’. Mr Lucas made the decision that the grievance be subject to an external investigation. That decision was consistent with the requirements of the Directive. Depending on the complexity of the grievance, it is not necessary that a final outcome be provided within 28 days, only that a decision be made about the grievance.  
  1. [46]
    Mr Lucas provided the Appellant with his initial decision within 28 days and Ms Edwards, A/Chief Legal Counsel phoned the Appellant to advise that the investigation had commenced and was progressing during Mr Redhead’s period of leave. The Appellant was kept informed of the process and consented to the extension request. I note that the Appellant’s consent was provided reluctantly, which is not unusual in circumstances where an employee would like their grievance to be resolved more quickly. The Department’s conduct in considering the grievance, having the grievance externally investigated, and providing the Appellant with a decision in a period of less than two months was not unfair nor unreasonable.

Procedural fairness / natural justice

  1. [47]
    The Appellant submits that he was not afforded procedural fairness by the Department in their decision making as he was not asked for the medical clearance prior to the decision of 5 December 2022.
  1. [48]
    The IR decision acknowledged that the Appellant believed that his medical clearance should have been requested and reviewed while he was in the workplace and prior to making the decision to instruct him to leave, however, the decision maker determined that the alternative course did not make Ms Stewart and Ms Jones’ actions unreasonable. The IR decision determined that it was reasonable and appropriate for the Appellant to be instructed to leave to enable the Department time to obtain and properly consider the contents of the Appellant’s medical clearance and any appropriate adjustments which may have been required.
  1. [49]
    In my view the Appellant was afforded procedural fairness in that he was given an opportunity to provide a medical clearance prior to his return to work. He did not provide that clearance until it was specifically requested on 5 December 2022. It is often the case that medical clearances are given with particular caveats or requirements for specific adjustments. In other cases, further information may be required from the medical practitioner if the clearance is not sufficiently detailed. Depending on the nature of the medical condition, it would be unrealistic to expect that such an assessment can be done concurrently with the employee’s return to the workplace. The Appellant was not denied procedural fairness as his clearance was duly considered and he returned to the workplace two days later. Procedural fairness did not require an immediate consideration of his medical clearance. Accordingly, it was open to determine in the IR decision that the Appellant had not been denied procedural fairness.

Investigation

  1. [50]
    The Appellant submits that the Department’s response to his grievance included statements indicating that he had not provided further evidence or explanations as to why certain claims were made. The Appellant contends that the investigator should have contacted him to ascertain this information.
  1. [51]
    The Appellant provided a 12-page grievance letter and other material outlining his concerns. Where it is determined that there was insufficient evidence or explanations, the Investigator is not required to return to parties to seek further information in circumstances where the facts are generally not in dispute. I note the investigation was conducted in a timely manner leading to a decision in a relatively quick timeframe.
  1. [52]
    The IR decision determined that the examples given of the information that the Appellant believed the Investigator should have sought were not relevant to the grievance. These included a review of Ms Stewart’s phone records to determine the length of the telephone conversation, a report on all Department employees who had taken sick leave for more than two weeks, and an assessment of how many employees had provided formal medical clearance prior to returning to the workplace. Given that the fairness or reasonableness of the Department's actions could not be determined by the length of a phone call or by an assessment of returning employees, it was open to the decision maker to find that this information was not relevant in considering the grievance. There is no information before the Commission to indicate that the investigation was not fair and reasonable.

Direction take sick leave

  1. [53]
    The Appellant submits that there was no basis for Ms Stewart to direct him to take sick leave. Upon review, the Department determined that it may have been more appropriate for Ms Stewart to advise the Appellant that he would be on special leave.
  1. [54]
    The Department’s review decision that the 2 days leave would be considered special leave rather than sick leave was fair and reasonable. The fact that Ms Stewart initially determined that the leave was to be considered sick leave was a blemish on the process, but it was not so material as to make the entire decision unfair or unreasonable. The Appellant suffered no prejudice as a consequence of Ms Stewart’s initial decision as his sick leave balance was not impacted. 

Higher Duties

  1. [55]
    The Respondent appointed another employee to perform in the Appellant’s role as a higher duties appointment. The Respondent submits that this decision was made to ensure its operational requirements were met and the arrangement had no effect on the Appellant.
  1. [56]
    The appointment of another employee to the Appellant’s role in his absence had no material impact on his interests. Whilst the Appellant may hold a view that the appointment of an employee to backfill his position was not appropriate, the selection of a public servant to work in the Appellant’s role is not an appealable decision in accordance with s 132(4)(c) of the PS Act. Arguably this decision is also not appealable pursuant to s 132(2) of the PS Act as it relates to a decision relating to resourcing of a public sector entity.
  1. [57]
    Although I do not consider the decision to appoint an employee to backfill the Appellant’s role to be appealable, I also note that as a decision within a broader fair treatment appeal, there is no information before me to indicate that the decision was not fair and reasonable.

Human Rights

  1. [58]
    The Appellant submits that the Respondent breached his human right to ‘protect from torture and cruel, inhumane and degrading treatment’ and may have breached other  in the 5 December incident.
  1. [59]
    The IR decision confirmed Mr Redhead’s determination that the decision to instruct the Appellant to leave the workplace was not incompatible with or limited the Appellant’s right not to be treated in a degrading way or right to privacy and reputation. Mr Redhead found that even if the decision did limit the Appellant’s rights, the decision was reasonable and justified in the circumstances to ensure the Appellant’s health and safety.
  1. [60]
    The basis upon which the Appellant was directed to return to sick leave on 5 December was the Department’s obligations under s 19 of the WHS Act. It may well be the case that s 58(2) applies to exclude the decision from the application of s 58(1) of the Human Rights Act. Regardless, I am satisfied that the IR decision assessed Mr Redhead’s consideration of the Appellant’s human rights and the determination that his rights to not be treated in a degrading way or right to privacy and reputation were not limited, or if they were the decision was reasonably justified. In circumstances where there was a risk to the Appellant’s health and safety by remaining in the workplace without an appropriate medical clearance, it was open to the decision maker to determine that the decision was reasonably justified in the circumstances.

General

  1. [61]
    The Appellant refers to the HR 18 Fitness for Duty, alcohol and other drugs policy regarding the Department’s direction for him to leave the workplace. The purpose of this document is to outline the expectations surrounding the consumption of alcohol and drugs when employees are performing official duties. The Department does not rely upon this document to support its actions in this matter.
  1. [62]
    The crux of this grievance was the decision to direct the Appellant to return to sick leave until a medical clearance was provided before his return to work. The Appellant was away from the workplace for a total of 2 days before he was cleared to return to duties. After raising a grievance, the Department acknowledged that communication could have been clearer as to how far in advance the medical clearance was required, and consequently credited the Appellant’s sick leave by granting the 2 days as special leave. The decision also confirmed that relevant processes have been updated to improve future communication. The Appellant contends that this concession renders the conduct unfair and unreasonable. I am not persuaded that the decision to initially consider the leave period to be sick leave prior to changing it to special leave was so egregious that it could be considered unfair or unreasonable. It is not necessary that all actions are perfect to be considered fair and reasonable.
  1. [63]
    Where situations arise in the workplace during which it becomes apparent that processes could be improved, Departments should be encouraged to embrace such improvements. Doing so does not indicate that all actions undertaken prior to the improvements were not appropriate or reasonable. I do not accept that the Department’s genuine attempts to reflect upon the matter with a view to improving their processes can be taken to indicate that the conduct was unreasonable or unfair. 
  1. [64]
    The relevant principles in considering whether a decision is 'unreasonable' were outlined by Ryan J in Gilmour v Waddell & Ors:[12] 

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.[13]

  1. [65]
    Applying the principles outlined above, I do not consider that the decision lacks justification.  The decision is reasonably justified and fair in all of the circumstances.
  2. [66]
    Based on the information before me, I am satisfied that the IR decision is fair and reasonable in the circumstances.

Order

  1. [67]
    I make the following order:
  1. 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 Qld & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

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

[5] Submissions filed by the Appellant.

[6] Ibid.

[7] Submissions filed by the Respondent.

[8] As per the criteria in R v Darling Island Stevedoring and Lighterage Cot Ltd; Ex parte Halliday and Sullivan (1938) 60 CLR 601.

[9] Submissions in reply filed by Appellant.

[10] DESBT HR 10.4 Mental Health and Wellbeing Policy, p. 4

[11] (emphasis added).

[12] [2019] QSC 170.

[13] Ibid [207]-[209].

Close

Editorial Notes

  • Published Case Name:

    Cunnington v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Cunnington v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 5

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    17 Jan 2024

Appeal Status

Please note, appeal data is presently unavailable for this judgment. This judgment may have been the subject of an appeal.

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