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  4. Keating v State of Queensland (Queensland Health) - [2024] QIRC 58

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Keating v State of Queensland (Queensland Health)[2024] QIRC 58

Keating v State of Queensland (Queensland Health)[2024] QIRC 58

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Keating v State of Queensland (Queensland Health) [2024] QIRC 058

PARTIES:

Keating, Janine

(Applicant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

TD/2023/87

PROCEEDING:

Application for Reinstatement

DELIVERED ON:

21 February 2024

HEARING DATES:

20 and 21 February 2024

MEMBER:

Dwyer IC

HEARD AT:

Gladstone

ORDERS:

  1. 1.
    Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) the application in matter number TD/2023/87 be dismissed;
  1. 2.
    Any application for costs must be made by 4pm on 13 March 2024

CATCHWORDS:

INDUSTRIAL LAW – QUEENSLAND – DISMISSALS – application for reinstatement pursuant to s 317 of the Industrial Relations Act 2016 (Qld) –  self represented applicant – question about capacity to self-represent – capacity to self-represent established – evidence of applicant included confirmation of alleged misconduct – valid reason for dismissal established by applicant’s own evidence – procedural fairness established on applicant’s own evidence – applicant invited to make submission as to why the matter ought to be further heard – further hearing not in public interest – application dismissed.

LEGISLATION:

Industrial Relations Act 2016 (Qld) ss 316, 317, 320, 545.

Public Sector Act 2022 (Qld) s 91.

CASES:

Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18

Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648

Nichole Knutson v Chesson Pty Ltd T/A Pay Per Click [2018] FWC 2080

State of Queensland v Lockhart [2014] ICQ 006

Turner v Blackbird Energy Pty Ltd (2007) 184 QGIG 17

APPEARANCES:

Ms J. Keating, the Applicant, appeared on their own behalf.

Ms J. Marr of Counsel, instructed by Crown Law, on behalf of the Respondent.

Reasons for Decision (delivered ex tempore)

  1. Capacity of applicant to self-represent
  1. [1]
    Ms Janine Keating is the applicant in these proceedings. Before setting out reasons for the decision in this matter it is necessary to record some observations with respect to the question of the Ms Keating’s capacity to self-represent. 
  2. [2]
    When giving evidence during the first day of proceedings on 20 February 2024 the Commission observed Ms Keating to display conduct consistent with a person affected by mental illness. Apart from her own assertions to this effect, Ms Keating was at times prone to emotional outbursts, and displayed disordered thought in her (often) convoluted and non-responsive answers to simple questions.
  3. [3]
    Toward the end of the first day of proceedings on 20 February 2024, Ms Keating purported to tender documentation for consideration by the Commission.  A bundle of documents was handed up.  The documents were not documents with which the Commission or the respondent were familiar.  Accordingly, the matter was stood down to allow the respondent and the Commission to consider the documents.
  4. [4]
    On review of the documents it was noted by the Commission they included a medical certificate from Ms Keating’s treating general practitioner.[1]  The medical certificate indicated very limited capacity for activity for a period of one month which included the dates on which the hearing was being conducted. 
  5. [5]
    This revelation caused some degree of concern for the Commission that Ms Keating’s illness might deprive her of a proper opportunity to present her case. That concern was compounded by a rather concerning outburst by Ms Keating when presented with the Commission’s capacity concerns.[2] The proceedings were therefore adjourned to allow Ms Keating to obtain further evidence from her treating doctor confirming (or otherwise) her capacity to self-represent in legal proceedings, including being cross-examined and cross-examining witnesses.
  6. [6]
    Overnight, Ms Keating was able to provide to the respondent and to the Commission a copy of an updated medical report from her treating medical practitioner.[3]  That report confirmed (with a clear reference to what was occurring in the proceedings) that Ms Keating had capacity to conduct proceedings on her own behalf, including being cross-examined and cross-examining witnesses.
  7. [7]
    In all of those circumstances, the Commission was satisfied that Ms Keating was without impairment with respect to her capacity to conduct these proceedings. Accordingly Ms Keating was subsequently cross examined and, upon request from the Commission, made submissions in response to the proposed exercise by the Commission of the discretion found at s 541 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’).

Background to the substantive application

  1. [8]
    Ms Keating was employed as a casual AO3 admin officer by the respondent at Gladstone Hospital.  Ms Keating was employed from December 2018 until the termination of her employment in July of 2023.  From her initial appointment, Ms Keating was employed on a series of temporary appointments.  From approximately July or August in 2022, Ms Keating was a casual employee.
  2. [9]
    Having heard the evidence of Ms Keating it is clear that none of the following facts are controversial.
  3. [10]
    In September of 2022, Ms Keating lodged a formal grievance. The details of the grievance are not particularly relevant except for the fact that they relate to concerns that she had with the conduct of one of her managers, Mr Johnson Mathew, the Health Information Manager. The event relevant to the grievance extends back to an email sent in January 2021.[4]
  4. [11]
    Following the lodgement of her grievance in September 2022, through either error, oversights, or dilatory conduct by parties unknown, the formal grievance was not progressed.  Despite two inquiries by Ms Keating in the early to mid-part of 2023, it was not until the 7 June 2023 that the grievance was formally accepted by the respondent and the processing of the grievance began. 
  5. [12]
    Simultaneous with Ms Keating’s pursuit of the grievance, it appears that she also became subject to a deterioration in her mental state from approximately 1 February 2023 which, coincidentally, was also the time when she learned her application for conversion to permanent employment had been declined.
  6. [13]
    From or about 2 February 2023, Ms Keating was unable to attend work. For approximately the first two weeks following 2 February 2023 her absence was (she says) due to a dental problem and a subsequent reaction to treatment.  After that, Ms Keating was then on a period of planned absence for a short period.
  7. [14]
    During that period of leave, Ms Keating says she received an email from a former manager who indicated that she was returning to manage Ms Keating. Ms Keating found this very distressing to the point where her mental health declined.
  8. [15]
    While it is not entirely clear why Ms Keating found the email from her manager distressing or what other factors were affecting her at that time, what is uncontroversial is that Ms Keating did not attend work again after 1 February 2023. 
  9. [16]
    Despite her ongoing absence, Ms Keating continued to pursue the grievance that she had previously filed in September 2022. Her further inquiry in late May 2023 met with a formal response.
  10. [17]
    On or about 7 June 2023, Ms Keating was informed in correspondence from Mr Jamie Spencer that the grievance was accepted and that he would begin the process of addressing it.[5]  Significantly, the letter of 7 June 2023 contained the following passage:

Lawful Directions

Confidentiality

I’m sure you appreciate the importance of confidentiality during this process.  I ask that you keep the details of this matter confidential.  This will protect the integrity of the process.  You may discuss the matter with your support person, union or legal representative.  If you need to discuss this matter with any staff member, you should make this request through Ms Lois in the first instance.

Code of Conduct for the Queensland Public Service

You are directed to behave appropriately towards any person who provides or has provided information in respect of this matter.  You are reminded the code of conduct for the Queensland Public Service clearly sets out the obligations that apply to you as a Queensland Health employee.  Should you fail to follow these lawful directions, you may be liable for disciplinary action.

  1. [18]
    In addition to other steps taken to deal with the grievance, Mr Spencer met with Ms Keating and her support person on 9 June 2023 to obtain further particulars necessary to fully understand her concerns.
  2. [19]
    In correspondence dated 29 June 2023, Mr Spencer provided a detailed summary of his consideration of the matters the subject of the grievance.  He informed Ms Keating that he now considered the matter closed.  Relevantly, the letter of 29 June 2023 containing this information also contained the following passage:

I request you keep the details of this matter confidential as far as possible.  You may however discuss the matter with your support person, union, legal representative or employee assistance.  If you need to discuss the matter with any other staff member, please contact me.

  1. [20]
    In addition, the letter of 29 June 2023 said under the heading ‘Lawful Directions’:

The directions issued to you in my letter dated 7 June 2023 regarding the importance of confidentiality and the requirements of upholding the code of conduct for the Queensland Public Service continue to apply.  Should you fail to follow these lawful directions, you may be liable for disciplinary action that may lead to dismissal.

  1. [21]
    In her evidence on 20 February 2024 Ms Keating confirmed in evidence she received the letter and understood the direction.[6] Ms Keating also confirmed she understood her obligations under the Code of Conduct.[7] Evidence was tendered confirming Ms Keating had undergone training on the Code of Conduct in the preceding months.[8]
  2. [22]
    Simultaneous with the grievance process being dealt with by Mr Spencer between 7 and  29 June 2023, and despite the clear and unambiguous directions given to her, the following admitted conduct was engaged in by Ms Keating.
  3. [23]
    Firstly, on 15 June 2023, Ms Keating sent an email to Mr Johnson Mathew (the subject of her grievance).[9]  The email commences without any salutation and reads as follows:

You need to apologise to me. 

This email was beyond reasonable. 

Learn from the experience. 

Be kind and fair in future engagements with employees. 

I personally require resolution.  We shall meet again. 

Please liaise with Jamie Spencer to confirm your personal financing of the $5,000 charitable donation I requested be made as partial recompense for your insulting, intimidating, threatening email.  I expect to see a receipt dated on or before 30 June 2023, in my name, on behalf of Toastmasters International to Mercy Ships Australia. 

After all I have tolerated, that is the least you can do. 

A “sorry” will never be enough.

…

  1. [24]
    The remaining part of the email is not pertinent.  Mr Mathew did not reply.
  2. [25]
    Having sent that email, the second admitted conduct of Ms Keating occurred on or about 22 June 2023.[10] On this date Ms Keating telephoned Mr Mathew on his personal mobile phone number, while he was at home on carer’s leave, caring for his wife who was unwell.  Mr Mathew terminated the phone call. 
  3. [26]
    After Mr Mathew terminated the phone call, the third admitted conduct engaged in by Ms Keating was that she sent Mr Mathew a text message to his personal mobile phone.[11]  That text message reads as follows:

Good on you being care to your wife while she is unwell.  When you have time, and preferably soon, I invite you to engage for a conversation long overdue.  Your apology and charity donation receipt will be welcome.  Firmly in pursuit of remedy of wrongdoings, Janine Keating.

  1. [27]
    In addition to these three separate contacts with Mr Mathew, Ms Keating also ‘tagged’ Ms Suzanne Williams in a comment on her Facebook page.[12] For context, Ms Williams is a former colleague and/or manager of Ms Keating who no longer works with the respondent. The post on Facebook was on a publicly accessible page and reads as follows:

Suzanne Williams you showed shocking example of the international entity you posed to act as a representative of.  You should feel greatly heartened by the extraordinary, insulting lengths that others have extended themselves to in effort to not apologise for your disgraceful workplace behaviours.  I am pleased you are gone from the workplace and still surprised others who exhibit nonsense behaviour are not.  Appalled to know folk like Karen Mc have been called out prior for being “bullying bitches.”  What is wrong with public employers who fail to acknowledge staff and matters that require proper address?  I have taken to phoning past bullies.  I hope they cannot sleep at night.  My concerns are not yet resolved.

  1. [28]
    Further to these matters, Ms Keating made a number of posts on her publicly accessible Facebook page that contained oblique but disparaging references which were apparently about her colleagues and the public service.[13]
  2. [29]
    On 30 June 2023, having become aware of these matters, Mr Spencer wrote to Ms Keating in a letter of concerns (‘the show cause letter’).[14]  Under the heading ‘Concerns’ in that letter, it reads as follows:

In my letters to you dated 7 June 2023, you were issued with a lawful direction in relation to confidentiality and the requirement to uphold the code of conduct for the Queensland Public Service.  You were further notified that if you failed to follow those lawful directions, you may be liable for disciplinary action that may lead to dismissal.

It has come to my attention that throughout the grievance process you have been contacting members of Gladstone Hospital staff via various platforms, including email and telephone, as well as publishing content on social media in relation to the grievance process, the public service, and your employment.

Based on the information available to me, I have serious concerns that you have breached the lawful direction given to you and the Code itself….

  1. [30]
    The show cause letter attached a number of documents supporting the concerns including screenshots of the relevant Facebook posts, text messages, and the email chain involving Mr Mathew.  Importantly, the show cause letter gave Ms Keating seven days to respond and foreshadowed the prospect of the termination of her employment. 
  2. [31]
    Ms Keating did not communicate any objection to the nominated response time of seven days.
  3. [32]
    On 7 July 2023, Ms Keating provided her response (in writing) to the respondent.[15] Notably, the response does not deny or reject the specific conduct of concern. The response reveals that Ms Keating appears to misunderstand that labelling social media content as ‘personal observation’ does not mitigate its inappropriateness, though her posts were not labelled as such in any event. The response also admits her ‘poor choice’ in ‘recently’ contacting Mr Mathews. Ms Keating’s response notably stops short of offering any apology for that conduct.
  4. [33]
    In summary, to the extent it responds to the show cause letter, Ms Keating’s response appears to misunderstand the seriousness of the conduct that she has engaged in and appears to offer, on some level, her mental distress as mitigation to some degree.  But the letter in response also conflates the disciplinary issue with the grievance response of 29 June 2023 from Mr Spencer and makes numerous irrelevant submissions about the grievance process as well.
  5. [34]
    At the close of her response to the show cause letter, Ms Keating appears to again misunderstand the seriousness of her situation and offers a request for redeployment to a suitable role.  Further, while Ms Keating offers to provide more information or to meet Mr Spencer in person ‘if required’, she does not seek a meeting in relation to the matter.
  6. [35]
    Ms Keating’s response to the show cause letter is comprehensive and considered, and while it is evident that Ms Keating misunderstands the seriousness of her situation, the letter does not have any hallmarks of being rushed or produced under pressure.  Further, while Ms Keating is labouring under a misunderstanding about the seriousness of her situation, that misunderstanding is not in any way due to any lack of clarity contained in the show cause letter. 
  7. [36]
    In correspondence dated 10 July 2023, Mr Spencer informed Ms Keating that her employment was terminated.[16]  That letter is equally comprehensive and demonstrates that Mr Spencer had both an understanding of and consideration for Ms Keating’s responses.
  8. [37]
    In giving her evidence before the Commission in these proceedings, Ms Keating has relevantly confirmed that she received and understood the direction in Mr Spencer’s letter of 7 June 2023 regarding both confidentiality and the code of conduct.[17]  She further gave evidence that she understood her obligations regarding the code of conduct.[18]  In cross-examination, she agreed that she had been recently trained in respect of the code of conduct.
  9. [38]
    Ms Keating further confirmed that she contacted Mr Mathews as alleged.  She further confirmed that she ‘tagged’ Suzanne Williams in that Facebook post referred to previously, and also that she had made the various Facebook posts nominated by the respondent as inappropriate.[19]
  10. [39]
    On this evidence, the singular point of difference between the parties in this matter becomes the characterisation of the conduct of Ms Keating.
  11. [40]
    In her evidence, Ms Keating regards the respondent’s reaction to her conduct as, in short, an overreaction.[20]  Additionally, she gave evidence that to the extent that she may have apologised for any of her conduct, it was done merely to appease Mr Spencer, who she now also regards as a bully.[21] 
  12. [41]
    In giving her evidence, Ms Keating was wholly unapologetic for her conduct that was the subject of the show cause letter. 
  13. [42]
    Additionally, despite attempts to suggest in her oral evidence before the Commission that she was in some way impaired at the relevant time in June of 2023, it is uncontroversial that at that same time, Ms Keating actively pursued the grievance with Mr Spencer, including attending a meeting with him with a support person.
  14. [43]
    Further, Ms Keating’s response to the show cause letter was, as has previously been observed, lucid, comprehensive, and unremarkable in the sense that it did not give the appearance of a person significantly impaired by mental illness.  It was supplied in the appropriate time frame.  When asked in evidence whether the Commission’s objective view of the letter in this regard was fair or correct, Ms Keating essentially agreed.[22]

The discretion to dismiss proceedings

  1. [44]
    The Commission has a broad discretion pursuant to s 541 of the IR Act to dismiss proceedings where it considers further proceedings are not necessary in the public interest. Section 541(2) of the IR Act relevantly provides:
  1. 541
    Decisions generally
  1. The court or commission may, in an industrial cause do any of the following—
  1. (a)
    make a decision it considers just, and include provision for preventing or settling the industrial dispute or dealing with the industrial matter to which the cause relates, without being restricted to any specific relief claimed by the parties to the cause;
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers—
  1. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest;
  1. [45]
    In Campbell v State of Queensland (Department of Justice and Attorney-General)[23] Martin J in dealing with the application pursuant to s 541 of the IR Act wrote:
  1. [27]
    Insofar as it may confine the exercise of discretion under s 541, the purpose of the Act is stated as follows:
  1. "3
    Main purpose of Act
  1. The main purpose of this Act is to provide for a framework for cooperative industrial relations that -
  1. (a)
    is fair and balanced; and
  1. (b)
    supports the delivery of high quality services, economic prosperity and social justice for Queenslanders."
  1. [28]
    The process for consideration of an application under s 541 does not require that the respondent's case be taken at its highest.  The cognate provisions in federal legislation were frequently considered by Full Benches of the federal tribunal, the Federal Court of Australia and the High Court of Australia.  The accepted approach was that the applicant bore the onus of making the claim for relief. But the ascertainment in any particular case of where the public interest lay often depended on a balancing of interests, including competing public interests, and was very much a question of fact and degree.
  1. [29]
    As the power given to the Commission by s 541 can prevent a party from pursuing relief otherwise available under the IR Act it is one which is to be exercised with due circumspection on a proper consideration of relevant materials. A "proper consideration" cannot be made where the case for the respondent is simply taken at its highest.  While the onus remains on an applicant, the requirement to consider the "public interest" cannot be satisfied if an artificial inflation of the respondent's case is applied.  Indeed, to take a respondent's case at its highest would almost always result in the dismissal of an application under this section.  On an application of this type, a respondent is not relieved of any requirement to advance a case.
  1. [30]
    In considering the public interest, regard must be had to the legislative basis of the principal relief sought and the evidence before the Commission …
  1. (Emphasis added)
  1. [46]
    Section 541 of the IR Act is indistinguishable from its predecessor, namely s 331 of the Industrial Relations Act 1999 (Qld). Section 331 relevantly provided:
  1. The court or commission may, in an industrial cause -
  1. …
  1. (b)
    dismiss the cause, or refrain from hearing, further hearing, or deciding the cause, if the court or commission considers -
  1. (i)
    the cause is trivial; or
  1. (ii)
    further proceedings by the court or commission are not necessary or desirable in the public interest.
  1. [47]
    In State of Queensland v Lockhart,[24] the then Deputy President O'Connor summarised the meaning of 'public interest' in relation to the exercise of discretion under s 331 in the following terms:
  1. [21]
    In O'Sullivan v Farrer, Mason CJ, Brennan, Dawson and Gaudron JJ considered the expression 'in the public interest'.  Their Honours wrote:
  1. 'Indeed, the expression, 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only 'in so far as the subject matter and the scope and purpose of the statutory enactments may enable … given reasons to be [pronounced] definitely extraneous to any objects the legislature could have had in view'.'
  1. [22]
    In GlaxoSmithKline Australia Pty Ltd v Makin, the Full Bench of Fair Work Australia in considering what constitutes 'the public interest' wrote:
  1. 'Appeals have lain on the ground that it is in the public interest that leave should be granted in the predecessors to the Act for decades.  It has not been considered useful or appropriate to define the concept in other than the most general terms and we do not intend to do so.  The expression 'in the public interest', when used in a statute, classically imports a discretionary value judgment to be made by reference to undefined factual matters, confined only by the objects of the legislation in question.
  1. Although the public interest might be attracted where a matter raises issues of importance and general application, or where there is a diversity of decisions at first instance so that guidance from an appellate court is required, or where the decision at first instance manifests an injustice, or the result is counter intuitive, or that the legal principles applied appear disharmonious when compared with other recent decisions dealing with similar matters, it seems to us that none of those elements is present in this case.' (citations omitted)
  1. (Emphasis added)
  1. [48]
    The public interest test involves a balancing of the respective interests of each party and, more broadly, the public. 
  2. [49]
    Caution needs to be exercised when exercising the discretion in a matter such as this to not simply take the respondent’s case at its highest. However, in the Commission’s view, the facts emerging from Ms Keating’s own evidence in this matter renders consideration of the respondent’s case unnecessary. 
  3. [50]
    At the close of Ms Keating’s evidence on 21 February 2024, the Commission informed the parties that it was contemplating exercising the discretion pursuant to s 541 to dismiss the proceedings. The parties were informed that the reason for this was that the Commission had formed a preliminary view that the admitted conduct of Ms Keating was sufficiently serious to warrant termination of her employment and that the procedure followed by the respondent in terminating Ms Keating’s employment was not harsh or unfair in all of the circumstances.[25]

Submissions

  1. [51]
    Following an adjournment for approximately one and a-half hours, the parties were invited to make submissions as to whether the discretion contemplated by the Commission should be exercised or not.  It is not necessary to restate those submissions in full other than to state (in summary) that Ms Keating generally sought a refrain from the proceedings being dismissed.  Many of her submissions restated her arguments from her substantive case, and much of what was addressed were irrelevant antecedent issues.
  2. [52]
    Ms Keating did however appear to seek that the matter be (in her words) ‘paused’ so that independent clinical exam could be conducted to evaluate her state of mind at the relevant time, namely June 2023.  This issue was addressed directly with Ms Keating during her submissions to the effect that such a proposal was, in the Commission’s view, of no utility and would not be considered.  It was explained to Ms Keating that retrospective evaluations of mental state were largely speculative opinions of little evidentiary weight.
  3. [53]
    Further, even if she could establish incapacity in June 2023, it was explained that in light of Ms Keating’s certificate confirming her capacity to conduct these proceedings in February 2024 and her unapologetic views of her actions expressed in her evidence, her ongoing lack of insight into the inappropriate nature of her conduct made her mental state in June 2023 irrelevant.
  4. [54]
    Finally, despite the emergence of a workers compensation claim around March 2023, it was noted by the Commission that there was no objective or independent evidence that might cause anyone to doubt Ms Keating’s relevant capacity to deal with those matters in June of 2023, especially given her unimpeded pursuit and engagement with both the grievance, and with the disciplinary process.
  5. [55]
    The respondent’s submissions in respect of the proposed exercise of the discretion under section 541 largely expanded on the views expressed by the Commission earlier but also sought an alternative consideration of the exercise of the powers pursuant to s 451 (2) of the IR Act. Given Ms Keating was not on notice of any alternative statutory consideration, the Commission did not consider that matter further out of fairness to Ms Keating.

Consideration

  1. [56]
    In every unfair dismissal application the Commission is tasked with determining two simple matters: firstly, whether there a valid reason for the dismissal and secondly, whether the process utilised to affect that termination was procedurally fair. In respect of the latter the provisions of s 320 of the IR Act establish a framework within which these matters must be considered. Additionally in this matter, compliance with the relevant provisions of Chapter 3, Division 3 of the Public Sector Act 2022 (Qld) (‘the PS Act’) must also be considered.
  2. [57]
    It is trite to observe that a valid reason for dismissal will not always be enough.  Even where serious misconduct is proven, a dismissal may be rendered unfair if there is procedural unfairness.
  3. [58]
    In a typical unfair dismissal application there will often be factual arguments around the reason or reasons for the dismissal.  In such matters, it is necessary that the contest between the parties will require hearing of evidence relied on by both parties.
  4. [59]
    By contrast, in this case, the material facts relied on by the respondent are largely uncontested by Ms Keating.  As noted previously, it is the characterisation of those facts as significant or otherwise that is in contest.  And so it is that the Commission can, in this matter,  arrive confidently at a conclusion about the merit of this application exclusively on the testimony of Ms Keating.
  5. [60]
    It is however, necessary to record reasons for these conclusions to explain the basis for any exercise of the discretion pursuant to s 541 of the IR Act.

Valid reason

  1. [61]
    It is uncontroversial that in the letter of 7 June 2023 Ms Keating was, inter alia, directed to maintain confidentiality around her grievance and observe the code of conduct.  In particular, she was directed to act appropriately towards any person who had provided or will provide information in respect of the grievance.
  2. [62]
    It is equally uncontroversial that Ms Keating’s grievance largely centred on the conduct of Mr Mathew. Despite receiving the direction in writing and understanding it, and despite receiving a written assurance her grievance would be dealt with by Mr Spencer by 30 June 2023, Ms Keating then, in flagrant disregard of the direction, engaged in seriously inappropriate conduct towards Mr Mathew.
  3. [63]
    On 15 June 2023, in contradiction of the direction of Mr Spencer, Ms Keating sent an email to Mr Mathew (set out above in these reasons).  The language of this email can only be described as menacing and intimidating.  It is highly inappropriate conduct, especially when one considers that Mr Mathews is the subject of the grievance under consideration. 
  4. [64]
    But what makes this conduct worse is that Ms Keating was previously requested in August of 2022 not to make such direct approaches to Mr Mathew in the context of the same or similar complaint.[26]
  5. [65]
    Mr Mathew did not reply to the 15 June 2023 email.  It appears that as a consequence of that, on 22 June 2023, Ms Keating ‘doubled down’ by continuing to harass Mr Mathew via his private mobile phone.  On 22 June 2023 Ms Keating called Mr Mathew while he was at home caring for his ill wife.  Mr Mathew (unsurprisingly) terminated that call but, not to be deterred, Ms Keating then continued to harass Mr Mathew via message to his phone, in which she continued to demand an apology and compensation from him.
  6. [66]
    In her evidence, Ms Keating has attempted at times to justify her conduct by alluding to harm she alleges Mr Mathew has done to her over the years.  What Ms Keating refuses to accept is that no matter how justified she might feel in her outrage, it was never appropriate for her to take such matters into her own hands, especially when a formal process was underway to investigate her concerns, and when she was directed not to contact Mr Mathew. 
  7. [67]
    On her own evidence Ms Keating concedes conduct that amounts to a serious contravention of a lawful direction on three separate occasions.[27]  In the Commission’s view this conduct is, of itself, a valid reason for the termination of Ms Keating’s employment. To the extent it is necessary to do so, the Commission also considers this conduct squarely satisfies the grounds for discipline prescribed by s 91 of the PS Act.[28]
  8. [68]
    There are, however, two other matters that must be dealt with. The Facebook post in which Ms Suzanne Williams is tagged is also a contravention of the direction given to Ms Keating on 7 June 2023.  While Ms Williams is a former employee, that does not diminish the seriousness of the contact with her. In a publicly visible post, specifically brought to the attention of Ms Williams, Ms Keating denigrates Ms Williams by reference to her conduct when she was in the workplace, but then continues to denigrate, in her words:

…public employers who fail to acknowledge staff and matters that require proper address.

  1. [69]
    While such language may have no clear meaning to a disconnected observer, it is easily decoded by any person (including Ms Williams) familiar with Ms Keating’s place of employment and/or Ms Williams. Because of the work history shared between Ms Keating and Ms Williams there is unlikely to be any impediment to Ms Williams’ decoding the language as a reference to the respondent. 
  2. [70]
    In those circumstances, it is the Commission’s view that the post involving Ms Williams also represents a serious contravention of the direction given to Ms Keating and, more broadly, represents a form of misconduct in terms of her denigration of the respondent in a public Facebook post.[29]
  3. [71]
    There are a number of other Facebook posts made by Ms Keating in the relevant period that were the subject of the show cause letter.  While the Commission does not share the respondent’s view of these as being objectively identifiable references to Ms Keating’s colleagues and Queensland Health, it is fair to conclude that any person who was familiar with where Ms Keating was employed would readily make these assumptions.  Ms Keating’s evasive responses under cross-examination in respect of these posts were particularly unimpressive also.[30]  In the Commission’s view, Ms Keating’s responses were disingenuous and indicated that she has no remorse for her conduct. 
  4. [72]
    In all of those circumstances there are, without doubt, compelling valid reasons for the termination of Ms Keating’s employment namely, her blatant and serious contravention of a lawful direction given to her on 7 June 2023.  Her admission of the conduct in giving her evidence in these proceedings, and her patent lack of insight or remorse only compounds the confidence of the Commission in this conclusion. For completeness it is noted that the Commission is satisfied that the conduct admitted by Ms Keating meets the grounds for discipline found at s 91 of the PS Act.

Procedural fairness

  1. [73]
    Having regard to the matters the Commission must consider pursuant to s 320 of the IR Act, there are no aspects of the process that are unfair in the circumstances. Both the evidence of Ms Keating and the supporting exhibits reveal that Ms Keating was advised of the concerns regarding her conduct, had an opportunity to respond, and her responses were fully considered.[31]
  2. [74]
    Ms Keating has contended that the termination of her employment by email is inherently unfair or harsh.  In making this submission, she relies on Fair Work Commission decisions that purport to support this proposition.[32] 
  3. [75]
    In Knutson[33] Commissioner Cambridge made the following comment:

[47] The employer provided notification of dismissal by email communication sent at 8:53pm on 6 November 2017. Notification of dismissal should not be made by email communication. Unless there is some genuine apprehension of physical violence or geographical impediment, the message of dismissal should be conveyed face to face. To do otherwise is unnecessarily callous. Even in circumstances where email or electronic communications are ordinarily used, the advice of termination of employment is a matter of such significance that basic human dignity requires that dismissal be conveyed personally with arrangements for the presence of a support person and documentary confirmation.

  1. [76]
    In Cachia, Deputy President Sams held:

I do not consider that informing an employee of their dismissal by phone, text or email, to be an appropriate means of conveying a decision which has such serious ramifications for an employee.

  1. [77]
    With respect to Ms Keating, the proposition she advances is wrong. Naturally, termination by email can be, in certain circumstances, harsh or unfair. But whether a termination is (or is not) harsh or unfair will always depend on all of the circumstances of the case. Even where there are procedural failings by an employer, there will be times (such as this matter) where the proven or admitted conduct of an employee will overwhelmingly justify a decision to dismiss them regardless of those procedural shortcomings.[34]
  2. [78]
    Further, with respect to the authorities relied on by Ms Keating, to the extent they provide any support for the proposition prohibiting email dismissal, it is noted that the Commission is not bound by those decisions. Further, in Cachia the email termination apparently did not render the dismissal unfair and the application was dismissed.
  3. [79]
    With respect, a definitive statement to the effect that a dismissal could never be fairly executed by email is folly.
  4. [80]
    In respect of the termination by email in this matter it has not rendered the dismissal unfair. In the Commission’s view it is not surprising the termination was conducted in this manner given that Ms Keating has ceased to attend at the workplace approximately 5 months earlier in February of 2023. Further, the letter of termination sets out, carefully and clearly, the consideration given to the matter by Mr Spencer. The termination letter demonstrates that Mr Spencer understands the response provided by Ms Keating, and that he considered it.
  5. [81]
    In the circumstances where Ms Keating has been absent from that workplace for approximately five months due to mental health issues, but where she had demonstrated a capacity for unimpaired communication via email, the termination by email was not harsh.
  6. [82]
    Alternatively, in the event that conclusion is wrong, the termination by email was not sufficiently harsh to render the dismissal unfair in the circumstances given the flagrant breach of the lawful direction and the ongoing lack of insight or remorse demonstrated by Ms Keating at hearing.
  7. [83]
    In respect of the procedural fairness more broadly, Ms Keating had the benefit of a comprehensive show cause process.  The show cause letter attached the evidence relied on by the respondent and Ms Keating had time to respond.  It should be noted that in her evidence Ms Keating now seems to contend that she did not view the attachments to the show cause letter which contained the screenshots and other evidence relied on by the respondents. She contends that she was distressed when she saw the letter, stopped reading, and sought assistance from her psychologist.[35]
  8. [84]
    If this is true, then it does not amount to a procedural failing by the respondent, especially when Ms Keating continued to engage and respond to the show cause letter and did not alert them to the fact that she had not read it.  Further, it is more than a little curious that Ms Keating still managed to address, with some precision, some of the matters evidenced by the attachments that she says she did not read.[36]
  9. [85]
    In any event, even where she had not read the attached evidence said to support the allegations, Ms Keating would have been sufficiently informed of the allegations against her by the language in the body of the letter sent by Mr Spencer. 
  10. [86]
    Ms Keating’s response to the show cause letter was, as has previously observed, fulsome and comprehensive.  While it is confused in places, that is not a feature of any confusion induced by the respondent.  There is no evidence that Ms Keating was not given an opportunity to sufficiently understand the allegations relevant to her conduct and an opportunity to respond. 
  11. [87]
    While it is not alleged by Ms Keating, it ought to be further noted that to whatever extent the procedure adopted by the respondent might be said to depart from the procedure prescribed by e.g. any relevant Public Service Directive or other policy, such a departure would not render the dismissal unfair in the Commission’s view.
  12. [88]
    In all of the circumstances, the facts established on the applicant’s case alone permit the Commission to confidently conclude that there was a valid reason for the termination of Ms Keating’s employment and that the procedure utilised by the respondent in effecting that termination was, in all the circumstances of this matter, fair. Accordingly, it is not in the public interest to continue to hear this matter.

Addendum - Costs

  1. [89]
    Following delivery of this decision ex tempore on 21 February 2024 the Commission received email correspondence from solicitors acting for the respondent on 23 February 2023. The email requested the Commission to consider making an order giving leave for them to apply for costs within 21 days of the date of decision.
  2. [90]
    While the Commission is prepared to accede to this request, some preliminary observations must be made.
  3. [91]
    Firstly, while costs in such proceedings are discretionary, the default position is that each party bear their own costs.[37]
  4. [92]
    Secondly, the proceedings in this matter ended without the respondent having to call any evidence or prepare final submissions. The respondent’s case would, in the Commission’s estimation, have taken at least another two days given their intent to call three witnesses. The respondent has been spared the cost of those additional hearing days entirely by virtue of the intervention of the Commission at its own initiative at the close of Ms Keating’s evidence.
  5. [93]
    Finally, despite the medical certification confirming Ms Keating’s capacity to participate in the proceedings, the Commission continues to consider that Ms Keating is a person adversely affected by mental illness. This conclusion is based on the Commission’s observations of Ms Keating over numerous appearances. While the Commission is confident of its view in this regard, it is not a conclusion that is inconsistent with her having capacity to conduct proceedings on her own behalf. The subtle but important distinction is between being affected by mental illness as opposed to losing capacity due to mental illness. 
  6. [94]
    As observed earlier in these reasons, Ms Keating had no insight into the inappropriateness of her conduct at the relevant time and, at the time of this matter proceeding to hearing, she continued to plainly express a similar lack of insight. She remained possessed of a fervent sense of justification for her actions and was entirely unremorseful.
  7. [95]
    In the Commission’s view, Ms Keating’s inability to appreciate the seriousness of the conduct that caused her dismissal is likely to be founded, at least partly, in her mental illness. In those circumstances, as a self-represented litigant,  Ms Keating  is unlikely to have been able to truly evaluate the merits of her own case in a way that would have made the poor prospects reasonably apparent to her, and certainly not to the extent necessary to meet the threshold set by s 545(2)(a) of the IR Act.
  8. [96]
    While it will remain open to the respondent to apply for costs, and while the fuller circumstances of matters pre-dating these proceedings may be revealing, the Commission as currently constituted has no small degree of discomfort that such an application would be contemplated against Ms Keating.  

Orders

  1. [97]
    It is Ordered that:
  1. 1.
    Pursuant to s 541 of the Industrial Relations Act 2016 (Qld) the application in matter number TD/2023/87 be dismissed;
  1. 2.
    Any application for costs must be made by 4pm on 13 March 2024.

Footnotes

[1] Exhibit 1.

[2] T 1-52, ll 1-5.

[3] Exhibit 2.

[4] A copy of the written grievance forms part of the documents that are Exhibit 6.

[5] Exhibit 3.

[6] T 1-31.

[7] T 1-32.

[8] Exhibit 4.

[9] Exhibit 7.

[10] T 2-29, ll 30-40.

[11] Exhibit 8 and T 2-30, ll 30-40.

[12] See attachments to Exhibit 9.

[13] See attachments to Exhibit 9.

[14] Exhibit 9 – note letter is erroneously dated ’30 July 2023’.

[15] Exhibit 10.

[16] Exhibit 11.

[17] T 1-31 to T 1-32.

[18] T 1-32, ll 1-5.

[19] T 1-32 to T 1-33.

[20] T 1-38, ll 45-48 to T 1-39, ll 1-5. Ms Keating describes the reaction as “absurdly over the top”.

[21] T 1-37, ll 45-48.

[22] T 1-37, ll 20-40.

[23] [2019] ICQ 18, [27] – [30].

[24] [2014] ICQ 006, [21] – [22].

[25] T 2-42 to 2-44.

[26] Exhibit 6; T 2-26, ll 25-35.

[27] T 2-28 to T 2-31; The email of 15 June 2023, the telephone call on 22 June 2023, and the text message on 22 June 2023.

[28] See s 91(1)(d) and (h).

[29] See PS Act, s 91(1)(b) and s 91(5)(b).

[30] T 2-9 to T 2-19.

[31] See IR Act, s 320(1)(a),(b)(ii), (c)(i),(ii);  See also Exhibits 9, 10, and 11.

[32] See Nichole Knutson v Chesson Pty Ltd T/A Pay Per Click [2018] FWC 2080; Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648.

[33] (n-33) at [47].

[34] Turner v Blackbird Energy Pty Ltd (2007) 184 QGIG 17.

[35] T 2-32 to T 2-35. Contrast with Ms Keating’s evidence at T 1-36, ll 1-6,  T 1-38, ll 5-15, and T 1-39, ll 10-15.

[36] T 2-33, ll 25-47 to T 2-34, ll 1-15.

[37] IR Act, s 545(1).

Close

Editorial Notes

  • Published Case Name:

    Keating v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Keating v State of Queensland (Queensland Health)

  • MNC:

    [2024] QIRC 58

  • Court:

    QIRC

  • Judge(s):

    Dwyer IC

  • Date:

    21 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

Case NameFull CitationFrequency
Campbell v State of Queensland (Department of Justice and Attorney-General) [2019] ICQ 18
2 citations
Jump To
Cite 1 - [2019] ICQ 18
Cite 2 - [2019] ICQ 18
Ms Anita Cachia v Scobel Pty Ltd ATF the S & I Trust t/a Emerse Skin & Laser [2018] FWC 2648
2 citations
Jump To
Cite 1 - [2018] FWC 2648
Cite 2 - [2018] FWC 2648
State of Queensland v Lockhart [2014] ICQ 6
2 citations
Jump To
Cite 1 - [2014] ICQ 6
Cite 2 - [2014] ICQ 6
Turner v Blackbird Energy Pty Ltd (2007) 184 QGIG 17
2 citations
Jump To
Cite 1 - (2007) 184 QGIG 17
Cite 2 - (2007) 184 QGIG 17

Cases Citing

Case NameFull CitationFrequency
Keating v State of Queensland (Queensland Health) [2024] QIRC 1221 citation
1

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