Tollesson v State of Queensland (Queensland Health)
[2024] QIRC 69
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- Unreported Judgment
- Tollesson v State of Queensland (Queensland Health)[2024] QIRC 69
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Tollesson v State of Queensland (Queensland Health)[2024] QIRC 69
Tollesson v State of Queensland (Queensland Health)[2024] QIRC 69
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Tollesson v State of Queensland (Queensland Health) [2024] QIRC 069 |
PARTIES: | Tollesson, Gert Anders (Appellant) v State of Queensland (Queensland Health) (Respondent) |
CASE NO: | PSA/2024/3 |
PROCEEDING: | Public Sector Appeal – Fair Treatment Decision |
DELIVERED ON: | 26 March 2024 |
MEMBER: | Dwyer IC |
HEARD AT: | Brisbane |
ORDERS: |
|
CATCHWORDS: | JURISDICTION – PUBLIC SECTOR – APPEAL AGAINST SUSPENSION DECISIONS – where appellant was suspended on normal remuneration – where appellant appealed decision to suspend on normal remuneration – whether such appeal falls within meaning of ‘fair treatment decision’. PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where appellant employed as a Visiting Medical Officer and Neurosurgeon – where appellant performed surgical biopsy – where patient suffered post-operative complication – where review of clinical incident raised ‘serious concerns’ about the appellant’s surgical decision making – where appellant suspended from duty on full remuneration pursuant to s 101(1)(a) of the Public Sector Act 2022 (Qld) – whether decision to suspend appellant from duty on normal remuneration was fair and reasonable – where decision contained inadequate facts – where reasonable belief of decision maker not evident – where decision unfair and unreasonable. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 101, s 129, s 131 |
CASES: | ENCO PRECAST PTY LTD v Construction Forestry, Mining and Energy Union [2020] QIRC 188 George v Rockett (1990) 170 CLR 104 Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2) [2019] QIRC 133 |
Reasons for Decision (ex tempore)
Background
- [1]Dr Gert Tollesson is employed by the State of Queensland through Queensland Health (‘the respondent’) as a Visiting Medical Officer and Neurosurgeon at the Queensland Children’s Hospital and Health Service in South Brisbane. Dr Tollesson is employed on a part-time basis working 30 hours per fortnight.
- [2]On 4 October 2023, Dr Tollesson performed a complex procedure on a nine year old patient. Subsequent to that procedure the patient experienced a post-operative complication (the ‘Clinical Incident’). The exact nature of the medical complication is not presently clear on the material before the Commission.
- [3]On 16 November 2023, Dr Tollesson was informed that the occurrence of the Clinical Incident had triggered a clinical review of his surgical treatment and response in relation to the procedure and the Clinical Incident. Dr Tollesson was informed that there would be a root cause analysis conducted in relation to the incident.
- [4]Following that process Dr Tollesson was advised in correspondence on 22 December 2023 that the respondent held ‘serious concerns’ in relation to his surgical clinical decision making. The precise nature of those concerns is not set out in that correspondence and nor are they presently clear to the Commission.
- [5]The correspondence of 22 December 2023 also informed Dr Tollesson that he was suspended from duty on full remuneration pursuant to s 101(1)(a) of the Public Sector Act 2022 (Qld) (‘the PS Act’) until 1 March 2024 (the ‘decision’).
- [6]By way of appeal notice filed on 4 January 2024, Dr Tollesson appealed against the decision. In their response submissions, the respondent raised a jurisdictional objection.
Jurisdictional objection
- [7]In their submission filed 2 February 2024, the respondent contends that the Commission does not have jurisdiction to hear an appeal in respect of a decision to suspend a public sector employee on normal remuneration.
- [8]The respondent refers to the language of s 131(1)(f) of the PS Act and contends that the specific reference to a right of appeal against a decision to suspend without pay is inconsistent with a right to appeal a decision to suspend on normal remuneration. Section 131(1) of the PS Act relevantly provides:
131 Decisions against which appeals may be made
(1) An appeal may be made against the following decisions—
(a) a conversion decision;
(b) a directive decision;
(c) a disciplinary decision;
(d) a fair treatment decision;
(e) a promotion decision;
(f) a suspension without pay decision;
…
(Emphasis added)
- [9]The respondent contends that the specific reference in s 131(1)(f) to suspension without pay reflects an intention of the legislature to exclude appeals of decisions to suspend on normal remuneration. It is contended that if it were otherwise, s 131(1)(f) of the PS Act would simply have referred to ‘a suspension decision’.
- [10]The respondent further submits that the alleviation of the need for procedural fairness provided by s 101(10) of the PS Act for suspensions on normal remuneration further supports their contention that suspension on normal remuneration decisions were not intended to be appealable.
- [11]For the following reasons, both of those arguments are rejected.
- [12]Section 101(1) of the PS Act relevantly provides:
101 Suspension
(1) A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes—
(a) the employee is liable to discipline under a disciplinary law; or
(b) the proper and efficient management of the entity might be prejudiced if the employee is not suspended.
(Emphasis added)
- [13]Section 101(1) of the PS Act plainly grants a discretion to the chief executive to suspend a public service employee. As an aside, whether that suspension is with or without normal remuneration is subject to the exercise of a second discretion contained within s 101(4). The chief executive can only exercise the second discretion if the first discretion is exercised in favour of suspension.
- [14]In order to exercise the first discretion contained in s 101(1) of the PS Act there is a clear prerequisite condition that is required to be met. Before exercising the discretion to suspend an employee pursuant to s 101(1) of the PS Act, the chief executive has to ‘reasonably believe’ that the employee is either ‘liable to discipline’ or that the ‘proper and efficient management of the entity might be prejudiced’.
- [15]The ‘reasonable belief’ of a chief executive as to these matters is not a requirement that can be established unilaterally. The term ‘reasonable belief’ (or terms like it) appears frequently in statutes and has a long history of jurisprudence around it.[1]
- [16]Whether a chief executive has the requisite reasonable belief to exercise the discretion found at s 101(1) of the PS Act will depend on the particular facts of the matter in question. Such facts are liable to be disputed by an employee aggrieved by the decision. It is entirely within the realm of contemplation that an employee might regard a decision that relies on ‘reasonable belief’, and where that belief is founded on disputed facts, to be unfair and unreasonable within the meaning contemplated by s 129 of the PS Act i.e. the definition of fair treatment decision.
- [17]Further, the exemption from procedural fairness accompanying a decision to suspend on normal remuneration extends only to the process adopted in the execution of a decision. Procedural fairness has no role to play in the formulation of the reasonable belief in the mind of the decision maker when making the decision to suspend. Accordingly, the exemption from procedural fairness does not assist the respondent in this appeal.
- [18]It is not necessary in these reasons to speculate why the legislature incorporated a specific ground for appeals against decisions to suspend without pay. It is sufficient to conclude that that provision does not operate in a manner that excludes a fair treatment appeal pursuant to s 131(d) for an employee seeking to challenge the ‘reasonable belief’ required of a decision maker who has decided to suspend the employee on normal remuneration.
- [19]The jurisdictional objection is dismissed. The Commission will deal with the substantive appeal.
Appeal principles
- [20]The role of the Commission in dealing with public sector appeals is to review the decision under appeal and determine whether it was fair and reasonable.[2]
- [21]The appeal is not conducted by way of re-hearing, but rather involves a review of the decision[3] and the associated decision-making process. Findings made by the Respondent, which are reasonably open to it, should not be disturbed on appeal.
What decisions can the Commission make?
- [22]In deciding this appeal, s 562C of the Industrial Relations Act 2016 (Qld) provides that the Commission may:
- a.Confirm the decision appealed against; or
- b.Set the decision aside and substitute another decision; or
- 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.
Submissions
- [23]In accordance with the Directions Order issued on 15 November 2023 the Parties filed written submissions.
Dr Tollesson’s submissions
- [24]In submissions filed 1 March 2024, Dr Tolleson relevantly contended that he regarded the decision was unfair and unreasonable. He submitted the decision went further than was necessary in the circumstances where this was a single and rare procedure on a background of two decades of unblemished practice.
- [25]In particular, Dr Tollesson submitted that he was provided with no reasons for the ‘blanket’ suspension from all areas of his practice.
Queensland Health’s submissions
- [26]The respondent submits variously that the decision was fair and reasonable because inter alia:
- Procedural fairness was not required (pursuant to s 101(10) of the PS Act);
- The decision complied with the Suspension (Directive 06/23);
- It was not possible to effectively supervise Dr Tollesson given his seniority;
- Safety concerns.
Consideration
- [27]Having regard to the decision it is the view of the Commission that it is not fair or reasonable for the following reasons.
- [28]The key portions of the decision read as follows:
Dear Dr Tollesson
I refer to your employment…and information I have received which raises serious concerns regarding your surgical clinical decision making and the subsequent impacts on patient safety.
Preliminary advice has now been received following the initial review of the clinical incident… This advice has raised significant concerns in relation to your surgical decision making.
…
While at this stage I have formed no view as to the veracity of the concerns, on consideration of the information before me I reasonably believe you are liable to discipline…..
(Emphasis added)
- [29]The decision does not provide sufficient factual information to demonstrate the basis upon which the decision maker has formed a reasonable belief. The decision refers only to ‘the information I have’ and that it raised ‘serious concerns’. While it might be the case that the parties have more information gleaned from other sources, a decision of this type is supposed to adequately record, inter alia, the mechanism by which it was arrived at i.e. record the facts upon which reasonable belief was attained. Such a decision must fully explain itself. This decision does not.
- [30]For completeness and to be clear, the Commission’s concerns as to the inadequacy of information evident in this decision is not a procedural fairness consideration. The concern arises from the lack of evidence contained in the decision upon which the Commission could be satisfied that the decision maker ‘reasonably believed’ Dr Tollesson was ‘liable to discipline’.
- [31]In the circumstances it is concluded that the decision is unfair and unreasonable. The Commission intends to return the matter to the decision maker for reconsideration.
- [32]It ought to be noted that Dr Tollesson should not regard this outcome as vindication for his objection to his suspension. There may well be cogent reasons that have yet to be properly disclosed that would compel suspension. It may well be the case that, upon further consideration of this matter, the decision maker will set out adequate facts in a subsequent decision and satisfy the evidentiary burden to demonstrate reasonable belief.
Order
- The decision appealed against is set aside;
- The matter is returned to the decision maker for reconsideration with a copy of these reasons.
Footnotes
[1] See Multiplex Constructions Pty Ltd v The Regulator under the Work Health and Safety Act 2011 (No. 2) [2019] QIRC 133; ENCO PRECAST PTY LTD v Construction Forestry, Mining and Energy Union [2020] QIRC 188; George v Rockett (1990) 170 CLR 104.
[2] Industrial Relations Act 2016 (Qld) s 562B(3).
[3] Industrial Relations Act 2016 (Qld) s 562B; Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5.