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  4. Simitsis v State of Queensland (Queensland Health) - [2025] QIRC 57

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Simitsis v State of Queensland (Queensland Health)[2025] QIRC 57

Simitsis v State of Queensland (Queensland Health)[2025] QIRC 57

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Simitsis v State of Queensland (Queensland Health) [2025] QIRC 057

PARTIES:

Simitsis, Rena

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO.:

PSA/2024/98

PROCEEDING:

Public Sector Appeal – Fair treatment decision

DELIVERED ON:

25 February 2025

MEMBER:

Power IC

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [75] of this  decision.

CATCHWORDS:

PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against decision to substantiate allegations and make disciplinary findings – whether appellant held an honest but mistaken belief – whether review decision was fair and reasonable – review decision set aside.

LEGISLATION AND OTHER

INSTRUMENTS:

Discipline Directive 05/23, cl 5, cl 7

Industrial Relations Act 2016 (Qld), s 562B, s 562C

Public Sector Act 2022 (Qld), s 91, s 131

CASES:

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10

Briginshaw v Briginshaw [1938] HCA 34

Coleman v State of Queensland (Department of Education) [2020] QIRC 32

Goodall v State of Queensland [2018] QSC 319

Jones v Dunkel [1959] HCA 8

Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97

Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264

Watson v Foxman [1995] 49 NSWLR 315

Reasons for Decision

Introduction

  1. [1]
    Ms Rena Simitsis ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an Assistant in Nursing ('AIN') within the Emergency Department ('ED') of the Gold Coast University Hospital ('GCUH').
  1. [2]
    By letter dated 17 January 2024, Mr Grant Brown, Executive Director, People and Operations, ('the decision maker') wrote to the Appellant inviting her to show cause in relation to the following allegations –

Allegation one

On 14 April 2023, you failed to conduct 15-minute visual observations of an at-risk consumer … in the Mental Health Pod at Gold Coast University Hospital Emergency Department, which allowed the patient to attempt suicide in the Mental Health Pod bathroom.

…

Allegation two

On 14 April 2023, you provided false and/or misleading information regarding [the Patient]'s status … to other members of her treating team, preceding and following a clinical incident which occurred at approximately 11.37am.

…

Allegation three

On 14 April 2023, you made false entries on the patient observation record of an at-risk consumer …

  1. [3]
    The Appellant was granted an extension on 31 January 2024 and provided a response to the show cause notice on 26 February 2024.
  1. [4]
    On 10 May 2024, the decision maker notified the Appellant of his determination in relation to disciplinary findings and proposed disciplinary action ('the decision').
  1. [5]
    The decision maker found that Allegation One and Allegation Two were substantiated and determined pursuant to s 91(1)(b) of the Public Sector Act 2022 ('the PS Act') that the Appellant was guilty of misconduct by engaging in inappropriate or improper conduct in an official capacity.
  1. [6]
    The decision maker also found that Allegation Three was substantiated and determined pursuant to s 91(1)(h) of the PS Act that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action.
  1. [7]
    The decision maker provided the Appellant with the opportunity to respond to the proposed disciplinary action of termination of her employment.
  1. [8]
    On 12 June 2024, the Appellant filed a Notice of Appeal pursuant to s 131(1)(c) of the PS Act appealing the decision on the basis that it was not fair and reasonable.
  1. [9]
    The issue for determination is whether the disciplinary finding was fair and reasonable.

Legislative Framework

  1. [10]
    Section 91 of the PS Act provides the following grounds for discipline:
  1. 91
    Grounds for discipline
  1. A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
  1. engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
  1. been guilty of misconduct; or

…

  1. contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

…

  1. In this section—

misconduct means—

  1. inappropriate or improper conduct in an official capacity; or
  1. inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

Example of misconduct—

victimising another public sector employee in the course of the other employee's employment in the public sector

relevant standard of conduct —

  1. for a public sector employee, means—
  1. standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
  1. a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
  1. for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and
  1. for a public sector employee who is a fire service officer under the Fire Services Act 1990—includes a code of practice under section 7B of that Act.

responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.

  1. [11]
    Clause 5.3 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector:
  1. 5.3
    Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.
  1. [12]
    Clause 7 of the Directive provides the requirements to commence a discipline process:
  1. 7.
    Requirements to commence a discipline process
  1. 7.1
    Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.
  1. 7.2
    Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

a.the seriousness of the employee's personal conduct and/or work performance, and

b. whether the matter should be resolved through management action instead, and

c. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and

d. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and

e. whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and

f. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and

g. whether further information is required to make a decision to commence a disciplinary process, and

h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

Appeal principles

  1. [13]
    The appeal must be decided by reviewing the decision appealed against.[1] Because 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 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. [14]
    The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.[4] The issue for determination in this matter is whether the disciplinary finding by the Respondent following the substantiation of the allegations against the Appellant was fair and reasonable. 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. [15]
    In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  1. confirm the decision appealed against; or
  1. set the decision aside and substitute another decision; or
  1. 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. [16]
    The Appellant's grounds for appeal as stated in the appeal notice are outlined as follows:

…the Decision Maker did not take into account my longstanding employment, experience as an AIN and lack of previous disciplinary matters being found against me when he was taking into account the context behind my "actions" and his interpretation of the Response.

Submissions

  1. [17]
    The Appellant included submissions in her Appeal Notice via the attached 'Schedule One'. The submissions are broadly the same as the submissions filed by the Appellant in response to the Directions Order, which are summarised below.
  1. [18]
    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. [19]
    The Appellant's submissions are summarised as follows:
  1. The Appellant submits that although the 'Provision of Nursing Care for the Gold Coast University Hospital Emergency Department Mental Health POD Work Instruction' and 'Provision of Nursing Care for Assistant in Nursing staff in the Emergency Department Procedure' ('the Policies') formally establish that a visual observation is required, the GCUH culture for acceptable visual observation has been for observations to be undertaken via CCTV rather than through a patient's window. The Appellant submits this method is regularly undertaken by Registered Nurses ('RNs') and AINs.
  1. The Appellant submits that the RNs on her shift were comfortable with her using CCTV to observe patients but acknowledges that this was an error on her behalf and apologies for what ensued because of her use of CCTV.
  1. The Appellant contests the decision maker's statement within the decision that "this does not reflect a momentary distraction but rather prolonged inaction of a dedicated task" on the basis that she believed at the time of the shift that she was undertaking the required 15-minute visual observations through the use of CCTV.
  1. The Appellant argues that the decision maker ought to have characterised the first allegation under s 91(1)(a) of the PS Act as a performance issue where the Appellant was undertaking visual observations via CCTV rather than by observing the patient through the window. The Appellant submits that this should be characterised as the Appellant not competently performing her duties, rather than misconduct on s 91(1)(b).
  1. The Appellant submits that she was of the belief that the patient had visited the bathroom at 11:00, and then subsequently returned to her room, based on the Appellant's CCTV observations. Once the Appellant became aware that the Patient was not in her room sometime after 11:30, as the Appellant previously thought she'd observed, and was actually in the bathroom, the Appellant assumed that the Patient had returned to the bathroom a second time unobserved.
  1. The Appellant argues that she believed at the time that the patient had only been in the bathroom for a few minutes, and that she had no reasons to believe otherwise having regard to the Visual Observation Record ('the VOR') which she believed at the time to be correct.
  1. The Appellant now realises that the VOR entries at 11:15 and 11:30 were incorrect but argues that at the time she honestly believed that she was providing her colleagues with correct information when stating to them "I don't know, maybe a few minutes" when asked how long the patient had been in the bathroom.
  1. The Appellant's contests the decision maker's reasoning and argues that she did not wilfully deceive her colleagues but provided what she thought was accurate information at the time.
  1. The Appellant argues that it was not reasonably justified for the decision maker to determine that she had been wilfully deceptive in circumstances where the Appellant honestly believed that she was adequately conducting observations via CCTV, and she reasonably believed that the Patient had returned from the bathroom and gone to the bathroom a second time.
  1. The Appellant further submits that it was not open to the decision maker to determine that the Appellant intended to deceive her colleagues, as she was well within her rights to put forward her version of events to the best of her recollection, that being the events she had witnessed via the CCTV monitor and documented in the VOR. The Appellant cites Van Berkel v State of Queensland (Queensland Health) to support this position.
  1. The Appellant submits that it does not automatically follow that where there is a factual disagreement about an incident, that an individual has deliberately falsified information. The Appellant cited Malcolm v State of Queensland (Queensland Health) to support this position. The Appellant therefore argues that it is unfair and unreasonable for the decision maker to decide that the Appellant deliberately falsified information, having regard to her explanation in her response to the Show Cause Notice.
  1. The Appellant argues that the decision maker ought to have classified Allegation Two as a performance issued under s 91(1)(a) of the PS Act on the basis that the Appellant had used CCTV to conduct her observations rather than attending the Patient's window. This then led the Appellant to provide a response that was based on her inadequate performance of visual observations. The Appellant submits that Allegation Two should not be classified as misconduct under s 91(1)(b).
  1. The Appellant submits that she did not believe during the shift that she had made false entries in the VOR as she honestly believed that her observations via CCTV were correct.
  1. The Appellant submits that her 11:00 VOR was consistent with her CCTV observation of the patient being in the bathroom, her 11:15 VOR was consistent with what she believed she saw via the CCTV, being the patient in her room after returning from the bathroom, and her initial 11:30 VOR entry was consistent with what she believed she saw via the CCTV, being the patient still in her room.
  1. The Appellant's second 11:30 VOR, reading 'BT' for bathroom, was added directly after the incident had occurred. The Appellant submits that her intention was to update the VOR to reflect the actual location of the patient at that time, given the new evidence.
  1. The Appellant submits that the 11:15 VOR was not updated by her after the incident as at that point, she still believed that the 11:15 VOR entry was accurate and there was no evidence available to suggest that the patient was in the bathroom at that time.
  1. The Appellant argues that it was unfair for the decision maker to reject her submission in her response to the Show Cause Notice that the 11:15 entry was entered at 11:15 when the Appellant thought the Patient hadn't moved. The decision maker rejected this on the basis that he thought it was inconsistent with the Appellant's VOR entry at 11:00 and was therefore fictitious. The Appellant argues that it was unfair for the decision maker to have decided that her insertions in the VOR were fictional based on a statement made in her response to the Show Cause Notice, where she was attempting to articulate her thoughts regarding an incident which had happened more than 10 months prior.
  1. The Appellant refers to Watson v Foxman to support the position that human memory generally deteriorates as time passes, which is correlative to the recollection of past events. The Appellant argues that her response should not lead the decision maker to conclude that her 11:15 and 11:00 entries were dishonest, particularly in circumstances where the Appellant has asserted at all material times that she observed the Patient via CCTV in the room at 11:15. Regardless of whether the response was factually incorrect, and the Appellant submits that it is her right to recount and put forward events to the best of her knowledge, in accordance with Van Berkel.
  1. The Appellant disputes the decision maker's finding that she retrospectively amended critical information and submits that her decision to add 'BT' to the end of her entry was done to ensure that the VOR accurately reflected the whereabouts of the Patient. The Appellant submits that at no time did she attempt to cross out her previous entry or make other amendments which might suggest she was trying "minimise [her] inattention" as stated by the decision maker.
  1. The Appellant submits that while the VOR entries in hindsight may have been inaccurate, at the time of making them the Appellant believed them to be true.
  1. The Appellant submits that in light of the above, she did not contravene s 91(1)(h) of the PS Act, as her conduct was not unethical.

Respondent's submissions

  1. [20]
    The Respondent's submissions are summarised as follows:
  1. During eight (8) years of permanent work at the GCUH ED the Appellant regularly performed duties on the Mental Health Floor or in the Mental Health Pod ('MHP'). During the Appellant's tenure with the GCUH, she undertook all relevant and mandatory training as per the Appellant's training record.
  1. On 14 April 2023, an incident occurred where the Appellant failed to conduct 15-minute visual observations of the Patient in the MHP at GCUH ED, which allowed the Patient to attempt suicide in the MHP bathroom.
  1. The Patient was admitted to the hospital after an earlier attempt to self-harm had occurred and was deemed a risk to herself, placing her in the category of a high-risk patient.
  1. On this shift, the Appellant was responsible for 'specialling' the Patient. 'Specialling' is a term used to describe when a staff member is allocated to observe only one patient. The resource intensity of specialling means that is reserved only for high-risk patients. The Appellant had no other AIN duties to perform but observing and specialling this patient.
  1. The observations that an AIN performs must be conducted in accordance with documented work instruction procedures for staff working in the ED MHP. They are the 'Nursing Care for the GCUH ED MH POD work instructions' and the 'Provision of Nursing Care for AIN staff in the ED procedure'. These observations must occur at 15-minute intervals and be done in person by the AIN.
  1. A review of this incident demonstrated that the Appellant had failed to maintain the proper procedure of conducting visual observations of the Patient at 15-minute intervals. The Patient attempted to commit suicide by hanging during the time when the Appellant failed to adhere to the proper procedures.
  1. Clause 3.2.2 of the 'Provision of Nursing Care for the Gold Coast University Hospital Emergency Department Mental Health POD' states the following:

All patients require the application of the AD12621 Visual Observation Record, and these are to be completed every 15 minutes, along with a 'breathing noted' assessment. Visual observations MUST be done at the patient's window and not through the CCTV monitor. The MHTL will allocate this responsibility to the Assistant in Nursing (AIN), who works under the direct supervision of the RN.

At clause 3.2 in the 'Provision of Nursing Care for AIN staff in the ED':

Visual observations as documented in 3.1., check patient is breathing - rise and fall of chest. (CCTV is an aide and physical check of patient is to be observed every 15 minutes).

  1. Video footage of the bathroom door demonstrates that at 11:04 the Patient entered the bathroom carrying a blue blanket. The Patient was left unattended and unobserved in the MHP bathroom which does not have the facility of CCTV cameras to monitor patients. The Appellant did not accompany the Patient to the bathroom and was, at the time, in an office and not observing the Patient.
  1. The attempt by the Patient to self-harm through hanging was by using the blue blanket she had taken to the bathroom. This occurred when the Patient secured the blanket to the door of the bathroom.
  1. Video footage of the bathroom demonstrates the blanket extruded from the door frame at 11:07. The Appellant remained in the office and was not conducting visual observations of the Patient.
  1. Video footage of the bathroom door demonstrates that at 11:36 the Appellant approached the bathroom door. At this time, CCTV footage confirms that the Appellant had not conducted any observations on the Patient for almost 30 minutes. The CCTV footage suggests the Appellant failed to notice the blanket protruding from the door and proceeded to knock on the door, indicating she was aware that the Patient was in the bathroom. This physical evidence is in direct contradiction to the Appellant's submission wherein she submits that she believed the Patient had left the bathroom and returned to her room in another area of the MHP.
  1. The Respondent respectfully submits that the Appellant's own submissions cannot exist in two realities. The Appellant could not have held a reasonable belief that the Patient had returned to her room whilst also holding the belief that the Patient was in the bathroom. The actions of the Appellant clearly demonstrate she believed that the Patient was in the bathroom. The Appellant could not open the bathroom door.
  1. Video footage at 11:36 captured the Appellant calling for security and other staff to support the situation. Video footage at 11:37 captured the security personnel opening the locked door and another team member activating the alarm on the wall opposite the bathroom door. This alarm summons clinical aid in the eventuation of a patient suffering a clinical episode.
  1. The Respondent submits that it is evident that the Appellant was aware that the Patient was still in the bathroom and had not returned to her room as put by the Appellant in her submissions.
  1. Video footage at 11:37 demonstrates that upon the door being released the Patient was connected from her throat to the door by the blanket which was clearly protruding from the door. The time from the appearance of the blanket at the door to this time is 29 minutes.
  1. At this time, the Patient was unconscious and may have been for 29 minutes. Upon discovery of the Patient in this condition a clinical response was urgently activated to provide clinical intervention to the Patient. The Appellant misled the attending clinicians by informing them of incorrect information relating to the time that the Patient was last observed. This false information created significant clinical risk and endangered the Patient.
  1. In response to queries from the attending team as to how long the Patient was unaccounted for, the Appellant replied, "About three minutes". When further queries were raised by the Nurse Unit Manager and Clinical Nurse the Appellant said, "I don't know maybe a couple of minutes". The CCTV footage places the time unaccounted for, at a minimum, of 29 minutes and 40 seconds. These statements are in direct contradiction to the physical video evidence. The Appellant was in possession of this evidence when provided with the Show Cause Notice.
  1. Post the incident where the Patient had self-harmed to the point of unconsciousness, a review occurred of all observation documents. The VOR for the Patient lists the Patient as awake, laying in her room at 11:15 and 11:30 on 14 April 2023. The physical evidence provided to the Appellant in the show cause notice demonstrates clearly that the Patient was, in fact, in the bathroom at these times and that the Appellant had not conducted any observations during this time. This led the Respondent to hold the reasonable belief that the entries in the VOR are false.
  1. The Respondent notes that even if the Appellant was to put that she observed the Patient through CCTV, this cannot be reasonably sustained as there was no CCTV in the bathroom and the Appellant has stated in her submissions that she believed the Patient was still in her bed during this time. The physical evidence in this matter clearly demonstrates that the Patient could not have been observed at these times. The Patient was in the bathroom, where there is no CCTV inside the room. The CCTV footage outside the bathroom clearly demonstrates that the Appellant did not approach this bathroom at the times she recorded in the VOR. The observations did not and could not have taken place.
  1. Following this incident, the Appellant was removed from conducting any observations in the MHP. The Appellant remains relieved of these duties while this process is ongoing. This affects the interest of the Respondent as the Appellant is unable to perform the inherent requirements of an AIN in the ED area.
  1. The Respondent argues that at all times the Appellant was afforded procedural fairness.
  1. The Respondent further submits that during the course of her duties as an AIN, the Appellant failed to follow the Policies thus increasing the risk of an adverse incident occurring to the Patient under her care.
  1. The Respondent submits that the Appellant has failed in her duties as an AIN, in that she did not physically conduct observations of the patient under her care.
  1. The Respondent submits that the Appellant states in her submissions that it is custom and practice in the ED to use CCTV to check on patients. The Respondent argues that the Appellant was specialling the Patient, and it is not custom and practice to breach the work instructions directive.
  1. The Respondent denies that any such practice is accepted or promoted by the Respondent. The work instruction is clear and direct in relation to these matters: At clause 3.2 in the 'Provision of Nursing Care for AIN staff in the ED':

Visual observations as documented in 3.1., check patient is breathing - rise and fall of chest. (CCTV is an aide and physical check of patient is to be observed every 15 minutes).

  1. Further, the Respondent submits that the Appellant's submissions state that RNs are comfortable with observations via CCTV but offers no evidence to support this claim. The Respondent firmly denies that there is any culture or practice of clinicians not complying with the proper procedure.
  1. (aa)
    The Respondent submits that the Appellant acknowledged that her visual observations were not correct on two occasions. This led the Respondent to believe that if these observations were conducted correctly by the Appellant, then this could have prevented the Patient from self-harming.
  1. (bb)
    The Respondent further submits that the Appellant has admitted that the VOR in hindsight may have been inaccurate at the time of making it.
  1. (cc)
    The Appellant submits that Allegation One is not misconduct. The Respondent refers to Deputy President Merrell's consideration in Coleman v State of Queensland (Department of Education) ('Coleman') of what constitutes misconduct.
  1. (dd)
    The evidence found by the Respondent and provided to the Appellant clearly demonstrates that the Appellant acted against her lawful work instruction, disclosed false information that endangered the health and safety of the Patient during a clinical emergency, and attempted to conceal her actions through the creation of false observations in the VOR. The Respondent respectfully submits that the threshold for misconduct has been met when measured against the standards determined by the Commission through the decision in Coleman.
  1. (ee)
    The Appellant states that it is a performance issue and not a conduct issue. The Respondent disagrees with this statement as the Appellant has been an AIN for 14 years and has had continuous service in the ED since 2015. The Respondent argues that the Appellant has been trained by the Respondent on all applicable policies and procedures.
  1. (ff)
    Regarding Allegation Two, the Respondent argues that the Appellant admits her observations were not correct and due to this, an adverse incident occurred to the Patient under her care.
  1. (gg)
    Regarding Allegation Three, the Respondent argues that the Appellant submits that all the VOR entries were consistent and that she relied on her CCTV observations. This submission is in direct contradiction with the physical evidence in this matter. There is no CCTV in the bathroom, the Appellant took no notice of the Patient preparing to self-harm by securing the blanket to the door of the bathroom, and the Appellant left the Patient alone and unattended in any manner for over 29 minutes.
  1. (hh)
    The Appellant chose to disregard her work instruction and has been unfaithful to the Respondent in that she has attempted to conceal her misconduct by making false declarations and creating false entries in the VOR.
  1. (ii)
    The Respondent otherwise contends that the decision was fair and reasonable, submitting that the evidence demonstrates repeated inappropriate behavioural actions by the Appellant. The Appellant's response to the show cause notice contains admissions that she made several lapses of judgment on the night in question and has no recall of who the Psychiatric Registrar or other clinicals rostered on shift were.
  1. (jj)
    The Respondent further submits that having carefully considered the Appellant's responses to the three allegations and weighed it against the information provided regarding each allegation, the Respondent made a decision in regard to each allegation on the balance of probabilities.
  1. (kk)
    On review of the evidence, the Respondent determined that the evidence provided was consistently documented, and therefore, on the balance of probabilities the Respondent relied on this evidence over the contradictory response provided by the Appellant. The Respondent argues that the physical evidence contained in CCTV footage and the false entries in the VOR are in direct contradiction with the Appellant's submissions.
  1. (ll)
    Having considered the principles of Briginshaw regarding the appropriateness of the disciplinary action, the Respondent balanced the evidence that was provided against the Appellant's responses to the incident along with the penalties that were being proposed.
  1. (mm)
    Having considered the Appellant's human rights may be limited or interfered with by the decision, the Respondent was of the view that the decision was justified and reasonable in the circumstances.

Appellant's submissions in reply

  1. [21]
    In reply, the Appellant made the following submissions:
  1. The Appellant admits that an incident occurred on 14 April 2023, wherein one of her patients at the time within the MHP attempted to commit suicide in the MHP bathroom ('the Incident'). The Appellant is remorseful that the Incident occurred, however, the Appellant argues that she did not fail to conduct 15‑minute observations of the Patient for the reasons that:
  1. The Appellant was conducting her 15-minute observations of the Patient by way of CCTV monitor;
  1. The Appellant's 15-minute CCTV observations of the Patient during the relevant period were as follows:
  1. At around 11:00, the Appellant observed, via the CCTV footage of the MHP corridor, the Patient moving towards the bathroom. The Appellant recorded this in the Patient's VOR;
  1. Sometime before 11:15, the Appellant thought that she had observed, via the CCTV footage within the interview room, the Patient lying under the blankets on the couch in the interview room with the light off, having returned from the bathroom. The Appellant recorded this in the VOR;
  1. At around 11:30, the Appellant thought that she had  observed, via the CCTV footage of the interview room, the Patient continuing to lay under the blankets on the couch in the interview room with the light off. The Appellant recorded this in the VOR; and
  1. Sometime after 11:30:
  1. An RN (Ms Christina Quinn) and Doctor entered the MHP office and asked the Appellant where the Patient could be found. The Appellant replied that the Patient was in the interview room. The RN and Doctor attended the interview room to engage with the Patient via the interview room door which is not seen on the CCTV footage of the MHP corridor;
  1. The Appellant observed, via the CCTV footage within the interview room, the RN and Doctor entering the interview room for the purpose of engaging with the Patient;
  1. The light in the interview room was turned on by either the RN or the Doctor and the Appellant  observed, via the CCTV footage within the interview room, that the Patient was not in the interview room;
  1. At this point in time, the Appellant reasonably believed that the Patient had left the interview room sometime after her 11:30 CCTV observation as she still believed that her CCTV observations of the Patient in the interview room at 11:15 and 11:30 were correct;
  1. The Appellant looked at the MHP's real time CCTV footage in an effort to locate the Patient and observed that the MHP bathroom door was shut and that there was something extruding from the top corner of the MHP bathroom door;
  1. The Appellant walked to the MHP bathroom door, knocked to see if someone replied and attempted to open the door. The door was locked so the Appellant called to the Patient Security Officer to come and help her open the door; and
  1. Upon opening the MHP bathroom door (with the help of the Patient Security Officer) the Appellant visually observed the Patient falling out of the bathroom to the MHP corridor, wherein the Patient began writhing around on the floor and yelling.
  1. The Appellant denies that she was responsible for 'specialling' the Patient and says that she had two other patients that she was responsible for during the relevant period. This can be evinced by the CCTV footage of the MHP corridor, wherein at 11:09 to 11:10 the Appellant is seen speaking to another patient. The Appellant further argues that she has not been (prior to the Incident) able to be tasked with specialling for a significant period of time due to the decrease in staff in the MHP. The Appellant is of the view that if she was tasked with specialling the patient, there would have been a record made to that effect.
  1. The Appellant admits the staff at the GCUH often undertake CCTV observations rather than observations in compliance with the correct procedure.
  1. The Appellant admits that the Patient entered the bathroom at 11:04 while the Appellant was in the MHP office, and that the Patient was carrying a blue blanket. The Appellant submits that it is not required within the MHP for patients to be escorted to and from the bathroom and that patients have the freedom to go to the bathroom as they please. The Appellant denies that she was not observing the Patient.
  1. The Appellant says that:
  1. The Patient was not unconscious as evinced by the CCTV footage and other evidence provided by the Respondent.
  1. That at some point after the Patient was found within the MHP bathroom, the Appellant was asked how long the Patient was in the bathroom for by Ms Emily Davis (Nurse Unit Manager) and Ms Toni-Ann Taylor (Clinical Nurse Consultant). The Appellant advised them, "I don't know, maybe a few minutes" ('the Response'). The Appellant reiterates that she did not deliberately mislead the attending clinicians.
  1. The Appellant denies that she responded with "About three minutes" and says that she responded with "I don't know, maybe a few minutes".
  1. The Appellant states that she was not provided with the CCTV footage of the MHP corridor during the Show Cause process and was alternatively provided with select screenshots of the footage of various times throughout the relevant period.
  1. The Appellant admits that there was no CCTV footage within the MHP bathroom but says that there was CCTV footage of the interview room in which the Patient had been occupying. As stated within the VOR, the Appellant thought that she had visually observed via the interview room's CCTV footage, the Patient lying under the blankets on the couch with the light off. It is the Appellant's view that the CCTV footage of the interview room is crucial physical evidence (which she previously agitated in the Show Cause Response) in which the decision maker should have been provided in his consideration of the Decision. The Appellant is of the opinion that:
  1. She would rely on this physical evidence and that it holds significant weight in this matter;
  1. This physical evidence would be materially relevant in determining whether it was reasonable that she believed that the Patient was in the interview room;
  1. This evidence would demonstrate that the RN and Doctor entered the interview room sometime after 11:30, which then triggered the Appellant to look for the whereabouts of the Patient in the MHP;
  1. The Respondent has refused to provide this physical evidence; and
  1. The Respondent's refusal to provide this physical evidence is in breach of the Appellant's right to procedural fairness and the Appellant is of the view that an inference should be drawn, pursuant to Jones v Dunkel, that the CCTV footage of the interview room would not be in the Respondent's favour.
  1. The Appellant submits that she is still conducting shifts within the GCUH emergency department and is often and repeatedly directed by her superiors to relieve her colleagues in the MHP while they are undertaking their lunch/tea breaks during a shift. Therefore, given that she is still entrusted to work within the emergency department and MHP, the Appellant submits that her colleagues/superiors are confident that she is able to proficiently perform the inherent requirements of her role as an AIN.
  1. The Appellant denies that the standards held in the case of Coleman have been established against her due to the following reasons:
  1. That the Appellant was undertaking her visual observations via the accepted GCUH standard, by way of CCTV;
  1. That the Appellant conducted her visual observations via CCTV approximately every 15 minutes and recorded them in the VOR;
  1. That the Appellant acted efficiently and appropriately (and within the requirements expected of an AIN) upon realisation that the Patient was no longer in the interview room; and
  1. That the Appellant followed all lawful and reasonable directions from her superiors regarding the Incident and provided all information to the best of her knowledge.

Consideration

  1. [22]
    This appeal requires a review of the decision maker's decision to determine if it was fair and reasonable in all of the circumstances.
  1. [23]
    The Appellant disputes the substantiation of the allegations and associated disciplinary findings and submits that the decision maker did not take into account the Appellant's long-standing employment history and experience as an AIN, and lack of previous disciplinary matters.
  1. [24]
    The basis of the Appellant's submissions can be summarised as that she admits that observations were conducted via CCTV instead of at the Patient's window, however, she was of the genuine view that she observed the Patient under a blanket in the darkened room during these observations.
  1. [25]
    The Appellant contends that she was denied procedural fairness on the basis that the CCTV footage of the Patient's room was not provided nor considered by the decision maker. The decision outlines that Appellant's statement in the response to the show cause notice that she believed "that specific camera footage will reveal that [her] beliefs that the patient was still there will be elucidated by the poor camera quality, and dark lighting."
  1. [26]
    The decision maker stated the following in response to the CCTV request –

I note your direction for me to review the specific camera footage from the consult room, as you believe it would elucidate your belief the patient was in her room, due to the poor camera quality and dark lights. This request reinforces why the Health Service does not rely on digital monitoring and further highlights the importance of undertaking regular physical checks of each of the vulnerable patients under our care. By exclusively monitoring patients through CCTV, the potential for oversight and missed critical indicators poses a serious risk to the health and welfare of our patients, as reflected by the events which transpired on 14 April 2023. Your failure to acknowledge this significant error in practise is particularly disconcerting, given your longstanding employment in the ED and your regular allocation to the MH Pod over the 8 years proceeding this incident.

  1. [27]
    The failure to provide the CCTV of the Patient's room to the Appellant or for the decision maker to examine the footage was a procedural deficiency in the process. The decision maker's assertion that CCTV should not have been used is relevant to Allegation One, but this reasoning does not assist in determining whether the information provided by the Appellant in relation to Allegations Two and Three was either incorrect but genuinely held, or alternatively, false and misleading.
  1. [28]
    The CCTV footage of the Patient's room may have demonstrated that a reasonable person could have incorrectly viewed the footage as showing a person under a blanket, given the 'poor camera quality and dark lighting', or it could indicate that this was entirely implausible.
  1. [29]
    In the absence of the CCTV footage of the Patient's room, and on the basis of the Appellant's submissions, the only fair and reasonable outcome is to accept the Appellant's contention that she believed that she observed the Patient under a blanket in the darkened room. 
  1. [30]
    The difficulty for the Appellant, particularly in relation to Allegation One, is that her submission that the vision of the interview room was poor due to low light, thereby explaining why she mistakenly thought she had observed the Patient in the room,  compounds the negligent nature of her conduct in relying upon the CCTV notwithstanding the admitted poor visibility.

Allegation One

  1. [31]
    The Appellant submits that in relation to Allegation One as outlined in [2], the GCUH culture or 'usual practice' was for visual observation to be undertaken via a CCTV monitor rather than the 'proper practice' requiring observation through a patient's window.
  1. [32]
    The Appellant contends that the RNs on the shift were comfortable with her undertaking observations of the Patient via CCTV rather than the proper practice.
  1. [33]
    I note that the Appellant submits that she 'understands that her undertaking of the Usual Practice rather than the Proper Procedure was an error on her behalf and apologises for the circumstances that ensued because of it.'
  1. [34]
    The Appellant takes issue with the decision maker's statement that "this does not reflect a momentary distraction but rather prolonged inaction of a dedicated task" on the basis that she believed at the time that she was undertaking the 15-minute CCTV observations by way of the usual practice.
  1. [35]
    It is not in dispute that the following direction applied to the Appellant - 

Clause 3.2.2 of the Provision of Nursing Care for the Gold Coast University Hospital Emergency Department Mental Health POD states the following:

All patients require the application of the AD12621 Visual Observation Record, and these are to be completed every 15 minutes, along with a 'breathing noted' assessment. Visual observations MUST be done at the patient's window and not through the CCTV monitor. The MHTL will allocate this responsibility to the Assistant in Nursing (AIN), who works under the direct supervision of the RN.

At clause 3.2 in the Provision of Nursing Care for AIN staff in the ED:

Visual observations as documented in 3.1., check patient is breathing - rise and fall of chest. (CCTV is an aide and physical check of patient is to be observed every 15 minutes).

[emphasis added]

  1. [36]
    The decision outlined the VOR notations made by the Appellant during the relevant time as follows –
  • 10:45 – RWA (room, wandering, awake)
  • 11:00 – BT (bathroom/toilet)
  • 11:15 – RCPA (room, chair, prone/laying, awake)
  • 11:30 – RCP, BT (room, chair, prone/laying) and (bathroom)
  • 11:45 – O (other)
  1. [37]
    The Appellant does not submit that she was unaware of the required procedure for monitoring an at-risk patient. After being trained on the appropriate procedure, it was incumbent on the Appellant to undertake this critical role in accordance with the process in which she had been trained. Regardless of the RNs alleged approval of the Appellant's observations via CCTV, of which there has been no evidence provided, the Appellant had a duty to conduct the observations in accordance with the procedure. This procedure required a visual observation to be done at the Patient's window and the Appellant failed to comply with this requirement.
  1. [38]
    For reasons considered below, I accept the Appellant's submission that the notations made on the VOR at the time and were not added later. This, however, does not alter the fact that the Appellant did not conduct the observations in accordance with the procedure, that is, to conduct a visual observation of the Patient rather than an observation via CCTV. The observations were in fact so negligently conducted that the absence of the Patient was not noticed by the Appellant. The act of 'observing' requires at least some level of diligence and the absence of such, along with the failure to physically observe the Patient through the window, supports the substantiation of this allegation. Noting the Appellant's admission that she did not conduct the observations in accordance with the procedure, it was open to the decision maker to substantiate this allegation.
  1. [39]
    The Appellant submits that the decision maker erred in his classification of Allegation One as amounting to misconduct and, if substantiated, the conduct should have been classified pursuant to s 91(1)(a) as repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently, or inefficiently.
  1. [40]
    The Appellant submits that her use of CCTV to make observations of the Patient rather than physically undertaking the visual observations is a performance issue rather than amounting to misconduct.
  1. [41]
    Deputy President Merrell considered the definition of misconduct in the PS Act in Coleman, noting the following - 

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[5]

  1. [42]
    The nature of this conduct could not reasonably be considered merely careless, incompetent, or inefficient. It was not conduct related to a minor task or a failure to perform to the standard required, rather, it involved complete indifference to the requirements of her role. The conduct involved serious negligence that almost led to a disastrous outcome.
  1. [43]
    In circumstances where the procedure specifically states that observations 'must be done at the patient's window and not through the CCTV monitor' the Appellant's conduct was in direct defiance of the Respondent's instructions. I am satisfied that it was open to the decision maker to determine that the Appellant's conduct in relation to Allegation One was misconduct.

Allegation Two – note: allegation refers to information given to doctors before and after incident

  1. [44]
    In Allegation Two, the Respondent alleges that the Appellant provided false and/or misleading information regarding the Patient's status to other members of her treating team, preceding and following a clinical incident which occurred at approximately 11:37.
  1. [45]
    The Appellant submits that based on her CCTV observations, at all material times she was of the belief that the Patient had left her room at 11:00, gone to the bathroom, and then returned. She was of the view that the Patient had been in her room at 11:15 and 11:30 and noted her observation in the VOR accordingly.
  1. [46]
    Shortly after 11:30, a Doctor and RN asked where the Patient was, and the Appellant advised she was in the room. After the staff returned and informed her the Patient was not there the Appellant went to the bathroom and knocked on the door.
  1. [47]
    The decision maker states that following the incident, the Nurse Unit Manager asked the Appellant how long the Patient had been unaccounted for, to which the Appellant replied, "3 minutes". The Appellant stated that later in the day she was asked by the Nurse Unit Manager and a Clinical Nurse how long she though the patient was in the bathroom for, to which she replied, "I don't know, maybe a few minutes".
  1. [48]
    It is not in dispute that the Appellant provided inaccurate information to the treating team regarding the length of time the Patient had been in the bathroom. The Appellant told the treating team that the Patient had been in the bathroom for 'a few minutes' despite the CCTV confirming that the Patient had been in the bathroom for approximately thirty minutes. The Appellant has submitted that it was what she 'honestly believed' at that time. 
  1. [49]
    The Appellant submits that she believed that the Patient had only been in the bathroom the second time for a few minutes and had no reason to believe that the Patient had been in there for longer having regarding to the VOR which the Appellant believed to be correct at the time.
  1. [50]
    The Appellant submits that although she now realises that her CCTV observations were not correct at the time of the 11:15 and 11:30 observations, at the time of the incident she honestly believed that she was providing her colleagues with correct information when advising how long she thought the Patient had been in the bathroom.
  1. [51]
    On the basis that I have accepted that the Appellant was of the genuine belief that the Patient was in the room at 11:30, the Appellant's statement that she thought the Patient had been in the bathroom for a few minutes was not misleading given that the time between the mistaken observation and the time the Patient was found was only six minutes. In reality, the Patient had been in the bathroom for approximately thirty minutes, but the Appellant was not aware of this at that time due to her failure to conduct observations appropriately. 
  1. [52]
    I accept the Appellant's submission that a factual disagreement does not indicate that one party has deliberately provided false information. On the Appellant's version of events, which I have accepted, it was reasonable for her to state that the Patient had only been in the bathroom for either 'three minutes' or 'a couple of minutes'. If the Appellant's submission that she observed what she thought was the Patient in the interview room at 11:30 is accepted, the maximum amount of time that the Patient could have been in the bathroom was for six minutes. Whilst I acknowledge the potential risk that such misinformation could have posed to the Patient, there is no evidence that this inaccurate information was provided intentionally. Accordingly, the decision to substantiate Allegation Two and the associated disciplinary finding is set aside.

Allegation Three

  1. [53]
    Allegation Three is that on 14 April 2023, the Appellant made false entries on the patient observation record of an at-risk consumer, i.e. the Patient.
  1. [54]
    The Appellant submits the following regarding the relevant entries –
  • the 11:00 VOR 'BT' (bathroom, toilet) entry was consistent with her CCTV observation that the Patient was attending the bathroom.
  • the 11:15 VOR 'RCPA' (room, chair, prone/laying, awake) entry was consistent with what she believed she saw through the CCTV monitor, being that the Patient was in her room having returned from the bathroom.
  • The 11:30 initial VOR entry 'RCP' (room, chair, prone/laying) entry was consistent with what she believed she saw through the CCTV monitor, with 'BT' added after the incident occurred.
  1. [55]
    The Appellant submits that she honestly believed that her CCTV observations were correct and does not believe that she had made false entries into the VOR.
  1. [56]
    The decision maker determined that the 11:15 VOR was fictional given that it was inconsistent with the Appellant's VOR entry at 11:00 that the Patient was in the bathroom. The Appellant submits that she observed the Patient attend the bathroom and then assumed she had returned based upon her CCTV observation at 11:15. Whilst the observation was incorrect, there is no evidence that the VOR entry was not made at the time, i.e. at 11:15. It is not inconsistent on the basis that the Appellant was of the belief that the Patient attended the bathroom at 11:00, returned to the room prior to 11:15 and left to attend the bathroom again after 11:30.
  1. [57]
    The Appellant's submission that she genuinely believed that the Patient was under a blanket in the darkened room at the time of the 11:15 observation and noted this VOR at the time should be accepted. Putting to the side the negligence of relying upon a CCTV observation when the room was dark and sight of the Patient was unclear, there is insufficient evidence to determine that the Appellant did not make this observation at the time and note the VOR accordingly.
  1. [58]
    The decision maker did not accept the Appellant's version of events regarding the completion of the CCTV observation record at 11:30. The Appellant submits that she thought that the Patient had returned from the bathroom after the 11:00 observation and then remained in the same position at the 11:15 and 11:30 observations.
  1. [59]
    The decision maker appears to have determined that the 11:15 and 11:30 VOR were not made contemporaneously on the basis that the 11:00 VOR records the Patient as being in the bathroom. On this basis, the decision maker determined that the 11:15 and 11:30 entries could not be correct as the Patient was still in the bathroom after 11:30 at the time of the incident. It is unclear why the decision maker did not accept the Appellant's response that she believed the Patient had returned from the bathroom, as incorrectly observed at 11:15 and 11:30, before visiting the bathroom again after 11:30.
  1. [60]
    The Appellant's submission is that the VOR entries at 11:15 and 11:30 were entered at the appropriate time, and although in hindsight were incorrect, reflected her genuine belief as to the observations made at the time ought to be accepted. There is insufficient evidence to indicate that the Appellant retrospectively inserted these entries.
  1. [61]
    The Appellant added a second 11:30 VOR entry (adding 'BT' for 'bathroom') directly after the Incident had occurred. The Appellant submits that her intention in adding the 'BT' reference to the 11:30 VOR was "to update the VOR for the record to reflect the actual location of the Patient, at that time, given the new information stemming from the Incident".
  1. [62]
    The Appellant disagrees with the decision maker's statement that "retrospectively amending critical information is fundamentally dishonest and demonstrates unethical decision making"  regarding her addition of 'BT' to the 11:30 VOR entry. The Appellant submits that her decision to add 'BT' to the end of her entry was done to ensure the VOR accurately reflected the whereabouts of the Patient, stating that at no time did she cross out her previous entry or make any other amendments which might suggest that she was trying to "minimise [her] inattention" as stated by the decision maker.
  1. [63]
    The Appellant's submission that she amended the 11:30 VOR to 'update the record' is unpersuasive. The purpose of the VOR process is to record an observation of a patient at a particular point in time. In circumstances where the Appellant had incorrectly thought the Patient was in the interview room from at least 11:15, the Appellant had no way of knowing at what time the Patient had gone to the bathroom when she added the note 'BT' to the 11:30 VOR at a later time following the Incident. The submission that the 'BT' entry was to update the record is entirely unconvincing when the Appellant had no idea when the Patient had left the room to go to the bathroom. The VOR is required to reflect the observations made at that time and should not have been amended retrospectively.
  1. [64]
    The Appellant has referred to Van Berkel v State of Queensland (Queensland Health) ('Van Berkel')[6] in support of the submission that she has the right to recount and put forward events to the best of her knowledge. In Van Berkel, I determined that the substantiation of an allegation did not automatically indicate that the information provided by the employee in relation to the allegation was false or intended to mislead. An employee has the right to put forward their version of events to the best of their recollection, however, this version must be based upon a genuine and honest belief. The Appellant's genuine and honest belief, based on her own submissions, was that the Patient was in the room at 11:30. The Appellant's action in amending the 11:30 VOR to add 'BT' was done in an attempt to update the incorrect observation notes. On the facts before the decision maker, it was fair and reasonable to substantiate this allegation to the extent that it relates to the amendment to the 11:30 VOR to include 'BT'.
  1. [65]
    The Appellant submitted to the decision maker that the 'BT' note was made after the stressful incident, and that her adrenaline was at an 'all-time high'. This context would indicate that procedural paperwork matters were unlikely to have been front of mind at the time, making the Appellant's submission that it was intended to ensure accurate record keeping even more implausible. On the balance of probabilities, it was more likely than not that the Appellant's conduct in adding the 'BT' entry was not a simple decision to ensure accurate recording, but rather an action taken upon the Appellant's realisation that she had not observed the Patient appropriately and a desire to retrospectively 'fix' the record.
  1. [66]
    The decision maker made the following statement when considering this allegation –

I must reinforce, retrospectively amending critical information is fundamentally dishonest and demonstrates unethical decision making. The success of our patient care processes are contingent upon accurate information and observations. Any attempt to misrepresent or manipulate essential documentation undermines the foundation of trust afforded to all health care professionals.

  1. [67]
    The Appellant contends that she did not contravene s 91(1)(h) of the PS Act with reference to cl 1.1 of the Code of Conduct, as she does not consider that her conduct was unethical.
  1. [68]
    There was insufficient evidence for the decision maker to determine that the Appellant had made a false entry in relation to the 11:15 and 11:30 VOR, given that these entries reflected her genuine belief at the time. However, it was open to the decision maker to determine that the Appellant's updated entry of 'BT' to the 11:30 VOR was a false entry based on the Appellant's admission.
  1. [69]
    The decision maker determined that following the substantiation of Allegation Three, the Appellant had contravened cl 1.1(b) of the Code of Conduct, which outlines the requirement that decision making must be ethical.
  1. [70]
    The particulars relating to the 11:15 and 11:30 VOR are set aside as not substantiated. Although only one of the particularised retrospective entries is substantiated, I am satisfied that the same disciplinary finding should be made in relation to this allegation. The amendment of the 11:30 record after the incident was sufficiently serious to demonstrate unethical decision making.
  1. [71]
    The decision regarding Allegation Three was fair and reasonable as far as it relates to the retrospective amendment to the 11:30 VOR. Accordingly, it was open to the decision maker to determine that the Appellant had, pursuant to s 91(1)(h) of the PS Act, contravened without reasonable excuse a relevant standard of conduct[7] in a way that is sufficiently serious to warrant disciplinary action.

General

  1. [72]
    I am not persuaded that the decision maker interpreted the response to the show cause or the Appellant's actions in any way that could be considered prejudicial. The decision maker made the determination based upon the evidence before him in determining to substantiate the allegations and make associated disciplinary findings. The Appellant's longstanding employment, experience as an AIN, and lack of disciplinary history will undoubtedly be issues to be considered when determining the appropriate disciplinary action, but it was entirely fair and reasonable for the decision to be made based upon the evidence specific to this incident.
  1. [73]
    The decision maker addressed concerns raised by the Appellant regarding resourcing. After outlining the resourcing available during the relevant period, the decision maker reasonably determined to reject the Appellant's submission that her conduct was a result of under resourcing.
  1. [74]
    The decision maker determined that the Appellant's human rights to privacy and reputation and the right to participate in public life may be limited as a result of this process. I am satisfied that the decision maker demonstrated consideration of these rights when determining that any limitation is justified on the basis that it is the public interest to ensure public sector employees conduct themselves to an acceptable standard, take reasonable care that their acts or omissions do not adversely affect the health and safety of others, and comply with the Code of Conduct including following clinical policies and procedures.

Order

  1. [75]
    I make the following orders:
  1. The review decision is set aside.
  1. The following decision is substituted –
  1. Allegation One is substantiated and a disciplinary finding is made that the Appellant is guilty of misconduct pursuant to s 91(1)(b);
  1. Allegation Two is not substantiated and the disciplinary finding of misconduct based on this allegation is set aside;
  1. Allegation Three is partially substantiated on the basis that the Appellant made a false entry of 'BT' on the patient observation record at 11:30 and a disciplinary finding is made that the Appellant has contravened a relevant standard of conduct pursuant to s 91(1)(h).

Footnotes

[1]Industrial Relations Act 2016 (Qld), s 562B(2) ('IR Act').

[2]Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10.

[3]Goodall v State of Queensland [2018] QSC 319.

[4]IR Act (n 1), s 562B(3).

[5]Coleman v State of Queensland (Department of Education) [2020] QIRC 032, 62.

[6]Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264.

[7]Clause 1.1(b) of the Code of Conduct for the Queensland Public Service.

Close

Editorial Notes

  • Published Case Name:

    Simitsis v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Simitsis v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 57

  • Court:

    QIRC

  • Judge(s):

    Power IC

  • Date:

    25 Feb 2025

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
Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10
2 citations
Jump To
Cite 1 - [1995] HCA 10
Cite 2 - [1995] HCA 10
Briginshaw v Briginshaw (1938) HCA 34
1 citation
Jump To
Cite 1 - (1938) HCA 34
Coleman v State of Queensland (Department of Education) [2020] QIRC 32
2 citations
Jump To
Cite 1 - [2020] QIRC 32
Cite 2 - [2020] QIRC 32
Goodall v State of Queensland [2018] QSC 319
2 citations
Jump To
Cite 1 - [2018] QSC 319
Cite 2 - [2018] QSC 319
Jones v Dunkel [1959] HCA 8
1 citation
Jump To
Cite 1 - [1959] HCA 8
Malcolm v State of Queensland (Queensland Health) [2024] QIRC 97
1 citation
Jump To
Cite 1 - [2024] QIRC 97
Van Berkel v State of Queensland (Queensland Health) [2023] QIRC 264
2 citations
Jump To
Cite 1 - [2023] QIRC 264
Cite 2 - [2023] QIRC 264
Watson v Foxman (1995) 49 NSWLR 315
1 citation
Jump To
Cite 1 - (1995) 49 NSWLR 315

Cases Citing

No judgments on Queensland Judgments cite this judgment.

1

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