Maish v State of Queensland (Queensland Health) (No 3)
[2024] QIRC 91
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- Unreported Judgment
- Maish v State of Queensland (Queensland Health) (No 3)[2024] QIRC 91
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Maish v State of Queensland (Queensland Health) (No 3)[2024] QIRC 91
Maish v State of Queensland (Queensland Health) (No 3)[2024] QIRC 91
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | Maish v State of Queensland (Queensland Health) (No 3) [2024] QIRC 091 |
PARTIES: | Maish, Megan Appellant v State of Queensland (Queensland Health) Respondent |
CASE NO: | PSA/2024/14 |
PROCEEDING: | Public Sector Appeal – Direction to attend an Independent Medical Examination |
DELIVERED ON: | 23 April 2024 |
MEMBER: | Pratt IC |
HEARD AT: | On the papers |
ORDER: | The appeal is dismissed |
CATCHWORDS: | INDUSTRIAL LAW – PUBLIC SECTOR APPEAL – INDEPENDENT MEDICAL EXAMINATION – REASONABLE SUSPICION – COMPELLING REASON – where appellant directed to attend an independent medical examination – consideration of s 132(4)(a) of the Public Sector Act 2022 – whether there is a right to appeal a decision to attend an independent medical examination made pursuant to ss 103 and 104 of the Public Sector Act 2022 – consideration of s 228 of the Public Service Act 2022 and what constitutes an inconsistency between a Directive and an Act that is "at least as favourable" – appeal can be made where appellant's right to do so exists within a Directive – where appellant's post-traumatic stress disorder triggered and aggravated by work and impacted attendance and ability to work – whether the Commission does not have jurisdiction over matter pursuant to s 228 of the Public Sector Act 2022 (Qld) because there is an inconsistency between a directive and section 132(4)(a) of the Public Sector Act 2022 (Qld) – consideration of phrase "at least as favourable" under s 228(2) of the Public Sector Act 2022 (Qld) – held that the Commission has jurisdiction over matter because directive was at least as favourable as section 132(4)(a) of the Public Sector Act 2022 (Qld) to the Appellant – whether there is a compelling reason to refuse to hear the appeal pursuant to s 562A(3)(b)(iii) of the Industrial Relations Act 2016 (Qld) – consideration of when the requisite reasonable suspicion to enliven the power to order an independent medical examination is made out pursuant to ss 103 and 104 of the Public Sector Act 2022 (Qld) – where appellant alleges that the direction to attend an independent medical examination made with ulterior motives – where appellant's allegations about ulterior motives not accepted – held that reasonable suspicion necessary to enliven the power to direct the appellant to attend an independent medical examination convincingly established – held that appeal had no reasonable prospects of success – held that a compelling reason exists to refuse to hear the appeal. |
LEGISLATION: | Industrial Relations Act 2016 (Qld) s 562A. Public Sector Act 2022 (Qld) s 103, s 104, s 130. |
CASES: | Goodall v State of Queensland [2018] QSC 319 Maish v State of Queensland (Queensland Health) (No 2) [2023] QIRC 362 Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439. Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134. Williams v State of Queensland (Queensland Health) [2022] QIRC 90. Wilson v State of Queensland (Queensland Police Service) [2022] QIRC 329. |
Reasons for Decision
- [1]Ms Maish ('the Appellant') appeals a decision directing her to attend an independent medical examination ('IME'). That appeal is made pursuant to s 130 of the Public Sector Act 2022 (Qld) ('PS Act').
Background
- [2]The Appellant is employed by Queensland Health ('the Respondent') as a clinical nurse in the Adult Acute Inpatient Services, Addiction and Mental Health Services at Princess Alexandra Hospital. The Appellant is a permanent part-time employee working 64 hours per fortnight.
- [3]Following a patient complaint, the Respondent originally contemplated placing the Appellant under suspension, but instead opted to place the Appellant into an alternative duties role on 3 November 2023. This alternative duties role is of an administrative nature. The patient complaint also prompted the Respondent to investigate whether it should discipline the Appellant. The decision that resulted from that investigation was the subject of an unsuccessful public sector appeal by the Appellant before this Commission.[1]
- [4]Many issues arose while the Appellant was in the alternative duties role. Some of the Appellant's co-workers reported that the Appellant was refusing to work as directed and that the Appellant indicated that she did not care about work, hated coming to work and felt that she was being degraded by being asked to do administrative work. Co-workers alleged that the Appellant placed herself in harm's way by leaving the safety of the reception area to directly approach a patient, who was shouting and emotional, without the help of clinical staff. Co-workers alleged that approaching the patient was outside the scope of the Appellant's duties. The Respondent had also directed the Appellant to attend training for Enterprise Scheduling Management ('ESM'), a program that the Respondent uses for administrative duties and that administrative staff must be adequately trained in. The Appellant did not comply with the direction to attend the ESM training on several occasions. The Appellant's initial reason for non-attendance was that she was sick, but the Appellant later went back on her explanation and said that she did not attend the ESM training because she "was a nurse [and] not a receptionist."
- [5]The Respondent suspended (with pay) the Appellant and invited the Appellant to show cause as to why she should not be suspended without pay. On 29 November 2023, the Appellant responded to the show cause notice. As part of that response, the Appellant said that her inability to attend the ESM training was because of her post-traumatic stress disorder ('PTSD'). The Appellant also said that she had experienced PTSD related panic attacks and relapses after attempting to attend the hospital to do the ESM training. On 3 January 2024, the Respondent advised the Appellant that the suspension would continue on full pay.
- [6]On 5 January 2024, the Respondent directed the Appellant to attend an IME pursuant to ss 103 and 104 of the PS Act ('the Decision'). The Respondent made that direction because the Appellant had said she suffered from a medical condition that was triggered and aggravated by work. For completeness, the direction stated:
Given your response dated 29 November 2023, your disclosure of a PTSD diagnosis and your assertion that you are unable to attend a MSH facility as a result of your diagnosis, I am reasonably satisfied that your inability to undertake training as directed is due to a medical condition.
… The purpose of the IME is therefore to obtain medical advice to better understand the nature and extent of your medical condition and whether it will adversely affect your ability to perform the duties or fulfil the obligations of the CN, Division of Adult Mental Health, PAH, MSAMHS (including any reasonable adjustments).
- [7]The Decision is the subject of this appeal.
The issue
- [8]On 9 February 2024, I brought this matter on for mention to clarify issues with the appeal form. I expressed preliminary concerns about whether I should refrain from hearing the matter, as the necessary prerequisites for directing the Appellant to attend an IME were apparently fulfilled. More specifically, the Respondent's chief executive obviously had a reasonable suspicion that the Appellant's stated mental health condition caused her absence and unsatisfactory performance, and this reasonable suspicion enlivened the chief executive's power to direct the Appellant to attend an IME. Accordingly, I issued directions on 9 February 2024 requiring the parties to address whether there is an arguable case and whether I should exercise the power pursuant to s 562A of the Industrial Relations Act 2016 (Qld) ('IR Act') to refuse to hear this appeal.
- [9]Consequently, the issue I am to determine is whether the Commission should refuse to hear the appeal pursuant to s 562Aof the IR Act.
Relevant legislation
- [10]Section 103 of the PS Act says:
This division applies to a public sector employee if—
(a) the employee is absent from duty or the employee’s chief executive is reasonably satisfied the employee is not performing the employee’s duties satisfactorily; and
(b) the chief executive reasonably suspects that the employee’s absence or unsatisfactory performance is caused by mental or physical illness or disability.
- [11]Section 104 of the PS Act says:
The employee’s chief executive may—
(a) appoint a doctor to examine the employee and give the chief executive a written report on the examination; and
(b) require the employee to submit to the medical examination.
- [12]Section 562A(3) of the IR Act says:
(3) The commission may decide it will not hear a public service appeal against a decision if—
(a) the appellant has made an application to a court or tribunal relating to the decision, whether or not the application has been fully decided; or
(b) the commission reasonably believes, after asking the appellant to establish by oral or written submissions that the appellant has an arguable case for the appeal, that the appeal—
(i) is frivolous or vexatious; or
(ii) is misconceived or lacks substance; or
(iii) should not be heard for another compelling reason.
- [13]In Wilson v State of Queensland (Queensland Police Service),[2] Dwyer IC considered whether to refrain from hearing a public sector appeal against a decision directing the appellant to attend an IME. A key fact in issue in that case was whether the employer had established the reasonable suspicion necessary to enliven the power to direct the employee to attend an IME.[3] Dwyer IC observed that the employer had convincingly established the requisite reasonable suspicion because the appellant's persistent absence from work could only be explained by the appellant's medical condition.[4] Given that the reasonable suspicion had been so convincingly established, Dwyer IC found that there was no compelling reason to hear an appeal that turned on the issue of whether the reasonable suspicion had been established.[5]
Submissions
- [14]The Appellant's submissions repeated many allegations that she had previously made about unlawful conduct within the workplace. The Appellant alleges that the direction to attend an IME was in response to her making those allegations. The Appellant also states that she was "unwilling to risk any deterioration of my mental health for something as ridiculous as ESM training when I do not and did not require ESM training." These submissions are consistent with the Appellant's earlier assertions that she had not attended the ESM training because her PTSD was aggravated by having to go the hospital to do the ESM training. The Appellant admits that, prior to the IME direction, she had told the Respondent that her PTSD was triggered and aggravated by work.
- [15]In response, the Respondent submits that it directed the Appellant to attend the IME because the Appellant told the Respondent that her PTSD was the reason why she could not go the ESM training. The Respondent also submits that the Appellant told it that she had PTSD related panic attacks and relapses when attending work. The Respondent also points to the Appellant's admission that she had not attended work because of a medical condition. The Respondent consequently submits that, even on the Appellant's own case, the inevitable conclusion is that the decision-maker knew that the Appellant was absent from duty because of a mental illness and directed the Appellant to attend an IME for that reason. The Respondent submits that the Appellant's appeal therefore lacks substance because the requisite reasonable suspicion to enliven the power to direct the Appellant to attend an IME has so obviously been met.
- [16]Furthermore, the Respondent submits that no practical relief is available to the Appellant. The Respondent submits that an order stopping the IME from going ahead would prevent the Respondent from obtaining medical advice necessary to help the Respondent discharge its health and safety obligations owed to the Appellant. The Respondent also submits that even if the decision was returned to a new decision maker, the Appellant has not provided any further medical information that would lead a new decision maker to reach a different conclusion.
- [17]The Respondent submits that, altogether, there are compelling reasons to not hear the appeal pursuant to s 562A(3). That is because the requisite reasonable suspicion obviously existed, even on the Appellant's own version of events, and because no practical relief exists anyway. I find the Respondent's submissions persuasive.
Consideration
Jurisdiction
- [18]The Decision states "[i]n accordance with ss 103 and 104 of the PS Act, I require you to submit to an independent medical examination (IME)". It is clearly a decision made pursuant to those two sections of the PS Act.
- [19]However, section 132(4)(a) of the PS Act relevantly provides that a person cannot appeal against a fair treatment decision… "made under chapter 3, part 8, division 5". The provisions of chapter 3, part 8, division 5 of the PS Act include sections 103 and 104 of the PS Act that give the employee’s chief executive the power to require the employee to attend an IME. At first glance, the application to appeal the decision requiring the Appellant to attend an IME is statute barred by virtue of s 132(4)(a) of the PS Act.
- [20]However, the relevant directive in this case was made pursuant ss 53 and 179AA of the now repealed Public Service Act 2008 (Qld). That directive is number 10/20 and titled "Independent Medical Examinations" ('Directive 10/20'). Directive 10/20 provides for a right of appeal, in particular, at clause 8.1. Although the Public Service Act 2008 was repealed and replaced by the PS Act, Directive 10/20 continues to operate by virtue of ss 307(1) and (2) of the PS Act that together provide for the continuation of existing directions from the Public Service Act 2008 (Qld) to the PS Act.
- [21]Subsection 228(1) of the PS Act provides that if a directive is inconsistent with an Act or subordinate legislation, then the Act or subordinate legislation prevails over the directive to the extent of any inconsistency. But s 228(2) provides that a directive is not inconsistent with an Act or subordinate legislation "to the extent the directive is at least as favourable as the Act or subordinate legislation".
- [22]The main purpose of the PS Act is set out in s 3. That is stated to be "to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State". The PS Act provides many benefits and rights for Queensland public service employees, including the various rights to appeal relevant decisions. However, as noted above, some rights are expressly denied by the PS Act. That includes the right to appeal a decision made pursuant to ss 103 and 104 directing an employee to attend and IME.
- [23]Directive 10/20 thus provides employees a right of appeal which the PS Act expressly prohibits. It is clear to me that Directive 10/20 is inconsistent with the PS Act. The extent of the inconsistency is obviously the right to appeal a decision directing an employee to attend an IME. The question is whether the right of appeal within the Directive is something that is an inconsistency with the PS Act that is "at least as favourable" within the meaning of that phrase as it appears in s 228(2) of the PS Act.
- [24]I construe the phrase "at least as favourable" as being viewed from the employee's perspective. I find this construction preferable because the PS Act is beneficial to employees and the purpose and main objects of the PS Act are focused on serving employees. I am also influenced by the fact that the focal point of directives described in the subsections of s 222 of the PS Act is on the overall employment conditions of various public service employees.
- [25]As to the meaning of "at least as favourable", the Shorter Oxford English Dictionary describes the word "favourable" as including "advantageous, convenient, facilitating one's purpose or wishes, helpful, suitable".[6] I therefore consider that a directive must provide a benefit to the employee equal to or over an analogous benefit under the PS Act in order for that directive to be "at least as favourable as the Act or subordinate legislation". Or in other words, a provision of a directive will not be inconsistent with a comparable section of the PS Act where the employee is in an equal or better position under that provision of the directive rather than that comparable section of the PS Act.
- [26]In this case, the entitlement or right is the right to appeal a decision directing an employee to attend an IME. The Directive provides such a right. The PS Act expressly prohibits it. The Appellant is better off having that right of appeal rather than not having it. On that basis, I find that the right to appeal such a decision contained within Directive 10/20 is something that is at least as favourable to the Appellant than that which is provided for in the PS Act. Accordingly, I find that the right of appeal within Directive 10/20 prevails over the PS Act's prohibition of that right. The extent of that inconsistency is obviously that an employee subject to the Directive 10/20 has standing to appeal such a decision. That is even where the decision was made expressly pursuant to ss 103 and 104 of the PS Act, as was the case here.
Whether to refrain from hearing the matter
- [27]It is not disputed that the Appellant was absent from work and unable to do work as directed because of a mental health condition, or that the Appellant told the Respondent that her mental health condition was causing her absence from and issues at work. I note that the Appellant has not had the benefit of legal advice, but nonetheless it seems that the Appellant has misunderstood the limits of this jurisdiction. Public sector appeals are by way of review, not rehearing.[7] Appeals by way of review require the Commission to consider whether the decision in question was fair and reasonable in the circumstances[8]. By its very nature, doing so requires having regard to at least the information and evidence available to the decision-maker at the relevant time.[9] The Appellant's PTSD related absence from work and inability to do work clearly created the requisite reasonable suspicion to enliven the power to direct the Appellant to attend an IME. In these circumstances, it is difficult to see how the Respondent had any reasonable option but to direct the Appellant to attend an IME.
- [28]It is immediately apparent to me that the argument that the direction to attend an IME was made with the ulterior motive of covering up some alleged wrongdoing is without merit. This argument is entirely inconsistent with the undisputed facts. Based on the submissions and evidence before me, including the Appellant's own materials, it is obvious to me that the IME direction to attend was given directly in response to the Appellant notifying the Respondent that her PTSD was affecting her ability to come to work and work satisfactorily.
- [29]Accordingly, I find that that the reasonable suspicion necessary to enliven the power to direct the Appellant to attend an IME has been convincingly established. Based on the undisputed facts, I find that the IME directive decision was obviously fair and reasonable and so the appeal has no reasonable prospects of success. My assessment therefore is that this is a compelling reason to refuse to hear the appeal. On that basis, I dismiss the appeal.
Order
The appeal is dismissed
Footnotes
[1] Maish v State of Queensland (Queensland Health) (No 2) [2023] QIRC 362.
[2] [2022] QIRC 329 ('Wilson').
[3] Ibid [67].
[4] Wilson (n 2) [73]-[74].
[5] Ibid [75].
[6] Shorter Oxford English Dictionary, 5th Ed. Oxford University Press 2003.
[7] Industrial Relations Act 2016 (Qld) s 562B(2); Radev v State of Queensland (Queensland Police Service) [2021] QIRC 439, [8] citing Goodall v State of Queensland [2018] QSC 319 (Supreme Court of Queensland, Dalton J, 10 October 2018) [5] as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).
[8] Industrial Relations Act 2016 (Qld) s 562B(3).
[9] Williams v State of Queensland (Queensland Health) [2022] QIRC 90, [16]; Rycroft v State of Queensland (Queensland Health) [2021] QIRC 134, [13].