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Sebastian v State of Queensland (Queensland Health)[2025] QIRC 64

Sebastian v State of Queensland (Queensland Health)[2025] QIRC 64

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:

Sebastian v State of Queensland (Queensland Health) [2025] QIRC 064

PARTIES:

Sebastian, Nichole

(Appellant)

v

State of Queensland (Queensland Health)

(Respondent)

CASE NO:

PSA/2024/163

PROCEEDING:

Public Service Appeal – Fair Treatment Decision

DELIVERED ON:

5 March 2025

MEMBER:

O'Neill IC

HEARD AT:

On the papers

ORDERS:

The orders contained in paragraph [174] of these reasons for decision.

CATCHWORDS:

PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – appeal against a disciplinary finding decision – where disciplinary findings made against the appellant – where it is alleged that the appellant is guilty of misconduct – where the alleged misconduct relates to rostering issues – where the appellant appeals the substantiation of the allegation – whether the appellant engaged in the conduct – whether the disciplinary finding decision was fair and reasonable – where the matter is set aside – where the disciplinary findings were not fair and reasonable.

LEGISLATION:

Directive 05/23: Discipline 2023 cl 4, cl 5, cl 7, cl 9

Acts Interpretation Act 1954, s 27B

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

Public Sector Act 2022 (Qld), s 91, s 129, s 131, s 132

Nurses and Midwifes (Queensland Health and the Department of Education) Certified Agreement (EB11) 2022, cl 68.1

CASES:

Briginshaw v Briginshaw [1938] HCA 3; (1938) 60 CLR 336

Colebourne v State of Queensland (Queensland Police Service) (No 2) [2022] QIRC 16

Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)

Lavercombe v Legal Services Commission [2023] QCAT 58

O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283

Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252

Reasons for Decision

Introduction

  1. [1]
    Ms Nichole Sebastian ('the Appellant') has been employed by the State of Queensland (Queensland Health) ('the Respondent') as a Clinical Nurse in Rostering and Recruitment ('CNR') at the Gold Coast University Hospital ('GCUH') Emergency Department ('ED') since October 2022. The Appellant shares the CNR role with another clinical nurse ('CN2') on a 0.5 FTE basis.
  2. [2]
    Pursuant to r 97(3)(b) of the Industrial Relations (Tribunals) Rules 2011 ('the Rules'), I determine that it is not in the public interest that the name of the other nurse that shares the CNR role with the Appellant be published in these reasons. This is because publication of the name of that person, is not material to any issue I have to determine in the Appellant's public sector appeal.
  1. [3]
    Prior to October 2022, the Appellant was employed by Queensland Health as a Clinical Nurse at the GCUH ED.
  1. [4]
    In a letter dated 30 July 2024, Mr Grant Brown, Executive Director People and Operations ('Decision Maker') of the Gold Coast Hospital and Health Service ('GCHHS') informed the Appellant that she may be liable to disciplinary findings in relation to an allegation and afforded her the opportunity to show cause why a disciplinary finding should not be made against her.
  1. [5]
    By letter dated 29 August 2024, the Queensland Nurses and Midwives' Union of Employees ('QNMU'), on behalf of the Appellant, provided a show cause response to the letter from Mr Brown.
  1. [6]
    By a further letter dated 13 September 2024, Mr Brown wrote to the Appellant to inform her that a disciplinary finding had been made against her regarding one allegation ('Allegation One') which was further particularised with six particulars ('the decision').
  1. [7]
    Allegation One and its particulars are set out on the first page of the letter[1]:
  • That on six (6) occasions whilst you were part of the GCUH Emergency Department's rostering team you inappropriately amended the roster for yourself and CN2, by taking these actions you contrived an improper personal benefit.

The particulars of Allegation One are as follows:

  • On 26 April 2024 and 29 April 2024 that you inappropriately made changes to your roster for 22 May 2024 without authorisation when you changed the shift times from an eight­hour shift to a six-hour shift, subsequently you reversed the change on 29 April 2024.
  • On 29 April 2024, you inappropriately made changes to your roster for 19 May 2024 changing the shift times without authorisation.
  • On 16 April 2024, you inappropriately rostered yourself for an additional shift for 2 June 2024 without authorisation.
  • On 29 April 2024, you inappropriately changed your roster shift time for 2 June 2024 from a day shift to a late shift without authorisation.
  • On 26 April 2024, you inappropriately rostered yourself for an additional shift on Sunday 9 June 2024 without authorisation.
  • On 12 May 2024, you inappropriately rostered an additional shift for CN2 on Monday 13 May 2024 without authorisation.
  1. [8]
    Within the decision letter, the Respondent outlines proposed disciplinary action being a monetary penalty of reduction in remuneration of one increment for three (3) months and a reprimand. Ms Sebastian was invited to show cause as to why the proposed disciplinary action should not be taken.
  1. [9]
    Via her QNMU representative, Ms Sebastian responded to the Notice to Show Cause 2 on 2 October 2024.
  1. [10]
    No decision has been made with respect to the imposition of the proposed disciplinary action.
  2. [11]
    These reasons will only address the disciplinary findings and will not touch upon the proposed disciplinary penalty of a reprimand and reduction in salary for three months.
  3. [12]
    On 8 October 2024, Ms Sebastian filed her appeal against the disciplinary findings decision made in the letter dated 13 September 2024.
  4. [13]
    For the reasons that follow I am not satisfied that the decision to find Allegation One to be substantiated was fair and reasonable.

The decision letter

  1. [14]
    As noted above, the Decision Maker's findings were contained in correspondence dated 13 September 2024. The decision letter relevantly provided:
  • You have received targeted training regarding appropriate workplace conduct and I am of the view you fully understood your responsibilities in this regard.
  • You are assigned to the position of Clinical Nurse - Roster Clerk. You applied for this role in response to the demands and difficulties associated with managing the roster for four hundred (400) staff in the Emergency Department.
  • The CNR roster team was assigned to CNR2, Ms Andrews (as a backup) and yourself, also the CNR role was a job share position between CN2 and yourself.
  • I have given significant weight to your response in which you have provided a consistent account of events as how the digital dairy operates when rostering in the Emergency Department.
  • Your behaviour violates The Queensland Health Workplace Conduct and Ethics Policy, which aims to maintain a professional, client-responsive, inclusive, and safe environment free from inappropriate behaviour for all patients, clients, visitors, and employees. Your actions did not align with the professional standards expected under this policy.
  • Based on my finding in relation to allegation one, I have determined that on the balance of probabilities you have breached the Code of Conduct …

The evidence is sufficient to find that on six (6) separate occasions you made unauthorised changes to the roster. The following dates where you made the changes to the roster are 26 April 2024 on two (2) occasions, 29 April 2024 three (3) changes were made and on 12 May 2024 one (1) change to the roster was made without authorisation. By making these unauthorised changes to the roster you contrived a financial benefit. Having considered all information available to me, including all the evidence, and your admittance to the breach occurring I have determined that the allegation against you have been substantiated.

Based on my finding in relation to the allegation, I have determined that pursuant to section 91(1)(b) of the Act, you are guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the Act.

The Appeal Notice

  1. [15]
    In the Appeal Notice filed on 8 October 2024 the Appellant has set out her grounds of appeal in Schedule A. I summarise the grounds of appeal in the following paragraphs.
  2. [16]
    The Appellant contends that the disciplinary findings decision was not fair nor reasonable and should not have been substantiated on the information available.
  3. [17]
    The Appellant accepts that the shift changes the subject of the disciplinary findings did occur, but contests that the behaviour was:
  • inappropriate;
  • required authorisation that was not obtained; and
  • allowed the Appellant to obtain an improper benefit.

As a consequence, the Appellant denies that she was in breach of the relevant Code of Conduct, procedures and guidelines.

  1. [18]
    The Appellant contends that if the conduct contravened the appropriate rostering process, that the issue should have been addressed by management action pursuant to ss 85 and 86 of the Public Sector Act 2022 (Qld) ('the PS Act'), rather than disciplinary action.

Findings – Allegation one

  1. [19]
    The Appellant contends that the Respondent has failed to provide any documents or information that outlines the formal process the Appellant is alleged to be in breach of. The Appellant notes that the Respondent does not have a formal rostering policy or procedure.
  2. [20]
    The Appellant in addition to her rostering role, also holds an 0.1 FTE contract as a clinical nurse which provides the Appellant with the flexibility of picking up floor shifts. The Respondent has not provided the Appellant with any document, policy, procedure or guideline to advise her of the process she must comply with to obtain shifts on the casual roster.
  3. [21]
    The Appellant provides information about how employees are able to pick up shifts through various means and that they are not limited to the 'online diary' and there are a number of staff (other than the CNR roles) who are able to action a shift 'pick up'.
  4. [22]
    Changes made to the published roster generate an AVAC form which details the changes made and has to be signed each morning by the Nurse Unit Manager ('NUM'), including those changes made by the Appellant.

Lack of 'reasonable satisfaction'

  1. [23]
    The Appellant submits that the well-established standard in disciplinary matters is satisfaction of the test laid out in Briginshaw v Briginshaw.[2]              The Appellant further contends that an allegation ''is required to be proved to the requisite standard. Proof can only occur if there is evidence to establish the necessary elements.''[3]
  2. [24]
    The Appellant contends that the threshold to be satisfied is considerably higher in this case, as consideration needs to be given to the seriousness of the allegations and potential that the alleged conduct may amount to criminal conduct.[4] As such, the Appellant contends that the Respondent needs to produce 'overwhelming' evidence in respect of the allegation.
  3. [25]
    The Appellant contends that the disciplinary findings fail to provide adequate grounds, limiting the reasons substantiating the allegation to the 'targeted training regarding appropriate workplace conduct', the Appellant's 'known' responsibilities, and stating that the Appellant's behaviour has violated various policies and the Code of Conduct.
  4. [26]
    The Appellant contends that the following elements would need to be established when determining whether the allegation was made out:
  • Proof that the changes made by the Appellant were 'inappropriate': identification of when can changes be made, when can changes not be made and/or policy outlining that persons in the Appellant's role cannot make such changes. 
  • Proof that the changes were made, 'without authorisation': provide evidence that the Appellant was required to obtain 'authorisation' prior to making changes in respect of her own shifts.
  • Proof that the Appellant 'contrived an improper personal benefit': no such proof has been demonstrated to show this, nor have documents been provided to evidence that the Appellant was not explicitly aware that she was not able to obtain available shifts in this way.
  1. [27]
    The Appellant contends that failure to provide evidence in respect of the above elements means that the Respondent could not have reasonable satisfaction that the allegation had been made out and that as a consequence, the decision to substantiate the allegation was unfair and unreasonable in the circumstances.
  2. [28]
    In relation to the issues to be determined, the Appellant states that they are:
  • Was it fair and reasonable for the decision maker to conclude that the Appellant was engaged in the conduct in the allegations without providing sufficient information to demonstrate how the conduct was a breach of the relevant Code of Conduct, guidelines, policies and/or procedures?
  • If the behaviour is determined to have been a breach, should this conduct have been managed under the positive performance management principles of the PS Act and the relevant directives.

Legislative Framework

  1. [29]
    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. [30]
    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. [31]
    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.
  2. 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:
  1. a.
    the seriousness of the employee's personal conduct and/or work performance, and
  2. b.
    whether the matter should be resolved through management action instead, and
  3. 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
  4. 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
  5. 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
  6. 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
  7. g.
    whether further information is required to make a decision to commence a disciplinary process, and
  8. 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.

Is the Appellant entitled to appeal?

  1. [32]
    A disciplinary finding decision that allegations have been substantiated is not a disciplinary decision as defined in s 129 of the PS Act. In the present case disciplinary action has not yet been taken against the Appellant.
  1. [33]
    Pursuant to s 132(4)(b) of the PS Act a fair treatment appeal is available regarding a finding made pursuant to s 91 of the PS Act that a disciplinary ground exists for the person.[5]
  1. [34]
    Section 131 of the PS Act lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that a fair treatment decision may be appealed.
  2. [35]
    Fair treatment decisions are defined within s 129 of the PS Act, which relevantly states:

129 Definitions for part

…

fair treatment  decision means a decision a public sector employee believes is unfair and unreasonable.

  1. [36]
    The Appellant has been an employee of the Respondent at all times relevant to this appeal.
  1. [37]
    I am satisfied that the Disciplinary Finding Decision is one that can be appealed pursuant to s 131 of the PS Act, and further, that the Appellant is entitled to appeal.
  2. [38]
    Section 564(3) of the IR Act requires an appeal to be lodged within 21 days after the day the decision appealed against is given.
  3. [39]
    The Appellant received the decision letter on 17 September 2024 and the Appeal Notice was filed in the Industrial Registry on 8 October 2024. I am satisfied that the appeal has been brought within the required time.

Appeal Principles

  1. [40]
    Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[6]
  1. [41]
    The IR Act provides that for an appeal against a disciplinary decision, the commission:[7]
  1. must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but
  1. may allow other evidence to be taken into account if the commission considers it appropriate.
  1. [42]
    A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the Decision Maker.[8]
  2. [43]
    The issue for my determination is whether the decision appealed against was fair and reasonable.[9]

What decisions can the Industrial Commission make?

  1. [44]
    In deciding a public sector appeal, s 562C of the IR Act provides that the Industrial Commissioner may:
  • confirm the decision appealed against; or
  • set the decision aside and substitute another decision; or
  • set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

Submissions

  1. [45]
    A Directions Order was issued to the parties on 25 October 2024 and in accordance with this the parties filed written submissions as follows:
  • Appellant's submissions filed 4 November 2024.
  • Respondent's submissions filed 28 November 2024.
  • Appellant's reply submissions filed 3 December 2024.
  1. [46]
    I note that the Respondent initially attempted to file its submissions and attached evidence on 20 November 2024. The form of the submissions and attachments was not compliant with the Directions Order dated 25 October 2024.
  2. [47]
    The Industrial Registry sent email correspondence to the Respondent on 20 November 2024 requesting that the Respondent file compliant submissions by close of business on 26 November 2024. That email also sought confirmation from the Respondent that the large number of attachments to the Respondent's submissions were evidence that was before the Decision Maker and not fresh evidence.
  1. [48]
    By email on 21 November 2024 the Respondent sought leave to increase the size of its submissions to ten pages. The Respondent ultimately filed a hard copy of its submissions and attachments on 28 November 2024. Despite the earlier request, the Respondent has failed to confirm that all of the 16 attachments were evidence that was before the Decision Maker.
  1. [49]
    There appears to be a significant amount of fresh evidence that has been filed by both parties. Pursuant to s 562B(4)(a) of the IR Act, the Commission must decide the appeal having regard to the evidence available to the decision maker when the decision was made. Neither party have applied for leave to adduce fresh evidence. Unless the fresh evidence is specifically referred to in these reasons, I have not given the fresh evidence any weight in determining the appeal.

Appellant's Submissions

  1. [50]
    The Appellant submits that the disciplinary finding decision was unfair and unreasonable as the allegation should not have been substantiated on the information available.
  1. [51]
    The Appellant did not contest that the alleged behaviour of adding and removing herself from the roster occurred, however contends that the behaviour was not inappropriate, did not require authorisation that was not obtained, and did not allow the Appellant to obtain an improper benefit.
  1. [52]
    If the alleged behaviour is found to have contravened the appropriate course of action, the Appellant submits that management action should have been preferred rather than disciplinary action by the decision maker.
  1. [53]
    Relevantly, the Appellant refers to ss 85 and 86 of the PS Act where the "Positive performance principles" are outlined. Specifically, the Appellant makes reference to the requirement to apply positive performance management principles before taking disciplinary action where performance issues have been identified.
  1. [54]
    In respect of Allegation one, the Appellant contends that the Respondent has failed to provide any documents that outlines any formal process that the Appellant is in breach of. She submits that the Respondent does not have a formal rostering policy or procedure and that at no point during her 1.5 years in the role was the Appellant informed that restrictions applied to the shifts she could obtain.
  1. [55]
    The Appellant contends that the Respondent has failed to provide any indication that she has used her role to obtain shifts she would not otherwise be able to obtain. The Appellant further submits that the online roster system allows all employees to obtain shifts through the same means. This process includes the online diary, roster email group, calling or emailing the CNR team or dropping by the CNR pod.
  1. [56]
    The Appellant submits that any changes made to the public roster generate an AVAC form which details the changes, and which is then signed each morning by the Nurse Manager.
  1. [57]
    Reference is made to the test outlined in Briginshaw v Briginshaw[10], that an allegation is required to be proved to the requisite standard. Further the Appellant submits that the threshold is to be considered higher in this case given the seriousness of the allegations. Given this threshold, the Appellant contends that it was appropriate for the Respondent to provide evidence to support the allegations.
  1. [58]
    The Appellant submits that the lack of evidence means that the Respondent could not have been reasonably satisfied that the allegation was made out.
  1. [59]
    The Appellant also contends that the decision is unfair by reference to the Discipline Directive 05/23 ('the Directive'). The submission notes that clauses 4.8 and 7.2.b of the Directive state that disciplinary action is not appropriate for matters that may be dealt with through management action.
  1. [60]
    Clause 7.2.a of the Directive requires the Decision Maker to assess the seriousness of the alleged conduct or work performance. The Appellant contends that the findings made were unreasonable and did not account for the seriousness of the alleged conduct.
  1. [61]
    The Appellant also submits that s 91(1)(h) of the PS Act only permits a Chief Executive to take disciplinary action where they are reasonably satisfied that the employee has 'contravened, without reasonable excuse, a relevant standard of conduct […] that is sufficiently serious to warrant disciplinary action.'
  1. [62]
    The Appellant submits that the 'reasonable satisfaction' test has not been met on the basis of the evidence provided by the Respondent which has failed to establish that the Appellant's actions would constitute a contravention of the Code, relevant policies, procedures or guidelines.

Respondent's Submissions

  1. [63]
    The Respondent submits that both the Respondent and the Appellant are bound by the Nurses and Midwifes (Queensland Health and the Department of Education) Certified Agreement (EB11) 2022 ('the EB') which refers, in Clause 68.1 to the Best Practice Rostering: Queensland Health Guidelines ('the BPR Guideline').
  1. [64]
    The Respondent submits that the Appellant was notified by Ms Liz Fountain, Nurse Manager (Rostering and Recruitment) on 22 April 2022 about concerns that were escalated regarding fair rostering practices not being upheld. The Respondent contends that principle 1 of the Guideline clearly articulates the Appellant's requirement to ensure that the opportunity to access penalty shifts are provided equitably.
  1. [65]
    The Respondent contends that a review of the Appellant's work found that she was rostering herself and her job share partner penalty shifts in a manner that gave them a preference to the detriment of other nurses. This included Ms Sebastian engaging in the alleged behaviour while not performing the CNR role, including while off duty.
  1. [66]
    The Respondent contends that conduct which the Appellant seeks to challenge is corrupt conduct in accordance with the Crime and Corruption Act 2001 (Qld) ('CCC Act').
  1. [67]
    The Respondent makes reference to the Appellant's requirement, under their role description, to stay up to date with the EB and HR policies. The Respondent also submits that Ms Sebastian has undertaken recent training relating to her role as well as ethics and integrity.
  1. [68]
    In respect to how the Appellant was contriving an improper benefit, the Respondent submits that Ms Sebastian, in her CNR role, would before publishing the 'work diary' which contained the available shifts to be filled, allocate the "premium" shifts (being those which attracted penalty rates) to herself or job share partner. By engaging in this conduct, the Respondent contends that the Appellant denied her nursing colleagues their rights pursuant to EB11.
  1. [69]
    The Respondent contends that the Appellant's conduct also occurred while she was not on duty referring to an incident on 12 May 2024. The Respondent submits that the Appellant was on covid leave this day and not performing her duties however, the Appellant has made a change to the roster for her job share partner ('CNR 2').
  1. [70]
    Further, on 13 April 2024, the Respondent submits that the Appellant was not performing her duties, however, received a shift change for 14 April 2024, from CNR 2 which was not approved by the nurse manager.
  1. [71]
    In response to the Appellant's contentions that the conduct should have been managed in accordance with the Positive Performance Principles, the Respondent submits that this would be inappropriate as the matter is a conduct matter rather than a performance deficiency. The behaviour also surpasses the threshold of a Performance Management Principle.
  1. [72]
    Regarding the Appellant's contentions that no rostering policy has been referred to, the Respondent accepts that no GCHHS local policy regarding rostering exists, however the Respondent contends that this is because this procedure is governed by the EB and the Guideline. Further the Respondent submits that the lack of a local policy does not make the Appellant's actions appropriate as they are in breach of the EB, Guideline, Code of Conduct and CCC Act. 
  1. [73]
    The Respondent disputes the contention that an absence of a policy or procedure means that the conduct is appropriate. The Respondent states that both parties to the appeal are governed by the industrial instrument, the guideline, the CCC Act and the Code of Conduct. The Respondent further submits that the Respondent does not provide such local rostering policies in any division of the health service.
  1. [74]
    The Respondent contends that the actions of the Appellant were in breach of the above framework of documents. By secreting their actions and allocating preference in securing loaded shifts before other staff knew of their existence, they engaged in unethical conduct. The Respondent further submits that all nurses are required to nominate their preferred shifts in the work diary and await the decision of the CNR and the Nurse Manager whose role is to ensure the roster is made in compliance with the guideline.
  1. [75]
    The Respondent contends that it is difficult to envisage a situation in which it is 'appropriate' to allow the Appellant to inappropriately use, and continue to use, her rostering position, a position of power, for the purposes of obtaining a financial benefit in the form of being rostered for desired and financially lucrative penalty shifts. The absence of a policy does not make the conduct acceptable as it is a breach of the Code of Conduct for the Queensland Public Sector.

Appellant's Submissions in Reply

  1. [76]
    In response to the Guideline, the Appellant submits that the matter at hand does not involve roster builds and due to complex departmental needs, local guidelines were created in 2015 for GCUH Emergency Department which stipulated review every three months.
  2. [77]
    The Appellant contends that despite requests, the Respondent has been unable to provide the Appellant with any updated versions of this document. In light of this, the Appellant submits that the 2015 policy and the EB provide the framework for how changes to rosters should operate and are used by the staff working in rostering.
  1. [78]
    In response to the Respondent's contention regarding a conversation between the Appellant and Ms Liz Fountain, the Appellant contends that following the formal chain of command in the Emergency Department, concerns should have been raised with Ms Fountain's line manager. Further the Appellant contends that the file note being relied on was created a month after the conversation occurred and was not signed by the Appellant (to confirm its contents) and therefore it is not congruent with the policy of file note creation.
  1. [79]
    The Appellant requested that the Respondent provide a roster audit of her shifts as CNR and earlier, which was not provided. The Appellant contends that this would disprove the allegation of opportunistic shift acquisition and would show that the Appellant was taking shifts in line with her normal working patterns since her employment commenced at the GCUH emergency department. The Appellant further notes that the Respondent has not provided any documentation from staff or management with concerns over not being able to obtain shifts when desired.
  1. [80]
    In respect to the contentions that the Appellant was working outside of work hours, the Appellant submits that the Respondent has failed to provide any policy that states this behaviour is unethical. Further, she submits that Ms Fountain regularly communicates with staff outside of working hours and provides evidence of staffing issues occurring outside of work hours.
  1. [81]
    The Appellant contends that the 'Digital Diary' is not the only way in which an employee can pick up extra shifts, meaning that the Respondent's contentions that she was allocating shifts prior to the release of the diary does not disadvantage other staff from obtaining those shifts.
  1. [82]
    In response to the particular of Allegation one, that the shift changes were not authorised, the Appellant submits that in line with the roster change process, AVACs were signed by either the Nurse Manager of Rostering or the Nurse Unit Manager daily. She further submits that shift changes cannot be reflected in pay without first being signed off.
  1. [83]
    The Appellant contends that in her role as CNR, she was not involved with roster publishing, and that shifts were not available to be 'picked up' until after the roster was published.
  1. [84]
    In response to the allegations regarding the shift change on 13 April 2024, the Appellant submits that this was an extra shift which is permissible to be dropped. She further submits that it is not standard practice to inform the CNC of this action.
  1. [85]
    The Appellant concludes that the disciplinary finding decision with respect to the allegation was decided without a proper understanding of how the rostering adjuncts are used at GCUH ED, the role of clinical nurse and the CNR in respect to rostering and daily shift changes. The Appellant contends that factual evidence to support the claims of the Respondent have not been shown and is indicative of a failure to investigate the allegations thoroughly.

Consideration

  1. [86]
    I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at.
  2. [87]
    Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)[11] ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.[12]
  3. [88]
    In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.[13] His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[14]

Show cause letter requirements

  1. [89]
    Section 27B of the Acts Interpretation Act 1954 (Qld) ('the AI Act') relevantly provides:
  1. 27B
    Content of statement of reasons for decision

If an Act requires a tribunal, authority, body or person making a decision to give written reasons for the decision (whether the expression 'reasons', 'grounds' or another expression is used), the instrument giving the reasons must also—

  1. set out the findings on material questions of fact; and
  1. refer to the evidence or other material on which those findings were based. 
  1. [90]
    The Discipline Directive was effective from 1 March 2023. Clause 9 provides for the 'Discipline Process' and relevantly provides:

…

  1. 9.3
    Show cause process for disciplinary finding
  1. a.
    the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
  2. b.
    written details of each allegation in clause 9.3(a) must include:
  1. i.
    the allegation
  2. ii.
    the particulars of the facts considered by the chief executive for the allegation
  3. iii.
    the disciplinary ground under section 91 of the Act that applies to the allegation
  1. c.
    when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
  2. d.
    a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence

…

  1. 9.4
    Decision on grounds (disciplinary finding)
  1. a.
    the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
  2. b.
    the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
  3. c.
    for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
  4. d.
    the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
  5. e.
    if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation
  6. f.
    if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
  1. [91]
    It can be seen that clause 9.4c. of the Discipline Directive effectively imports the requirements of s 27B of the AI Act into the Discipline Directive as regards the contents of a disciplinary finding decision.
  2. [92]
    In my view the requirements of s 27B of the AI Act also apply to the show cause decision contemplated by clause 9.3 of the Discipline Directive because the decision maker is required to set out the factual matters underpinning each of the particulars of the single allegation and the evidence relevant to those factual findings.

Analysis of the evidence

  1. [93]
    The sole allegation raised in the initial show cause letter[15] ('SC1') relates to the series of roster changes made by the Appellant, or the other CNR, CNR2. SC1 particularises those changes as follows:
  • On 26 and 29 April 2024 the Appellant inappropriately made changes to her roster for 22 May 2024 without authorisation when she changed the shift times from an eight-hour shift to a six-hour shift. The Respondent notes that the Appellant reversed the change on 29 April 2024.
  • On 29 April 202, the Appellant inappropriately made changes to her roster for 19 May 2024 changing the shift times without authorisation.
  • On 16 April 2024, the Appellant inappropriately rostered herself for an additional shift for 2 June 2024 without authorisation.[16]
  • On 29 April 2024, the Appellant inappropriately changed her roster shift time for 2 June 2024 from a day shift to a late shift without authorisation.
  • On 26 April 2024, the Appellant inappropriately rostered herself for an additional shift on Sunday 9 June 2024 without authorisation.
  • On 12 May 2024, the Appellant inappropriately rostered an additional shift for CN2 on Monday, 13 May 2024 without authorisation.

Date of change

Time of change

Date of shift

Change made by

Roster Changes

26 April 2024

08:37

Wed 22 May 2024

CN2

Roster change 1

26 April 2024

08:37

Sun 19 May 2024

CN2

Roster change 2

26 April 2024

08:37

Sun 26 May 2024

CN2

Roster change 3

26 April 2024

08:45

Wed 22 May 2024

Nichole Sebastian

Roster change 4

26 April 2024

08:45

Sun 9 June 2024

Nichole Sebastian

Roster change 5

29 April 2024

15:10

Wed 22 May 2024

Nichole Sebastian

Roster change 6

29 April 2024

15:10

Sun 19 May 2024

Nichole Sebastian

Roster change 7

29 April 2024

15:10

Sun 2 June 2024

Nichole Sebastian

Roster change 8

12 May 2024

17:46

Mon 13 May 2024

Nichole Sebastian

Roster change 9

  1. [94]
    In relation to each of those changes, the Respondent in SC1 provided the following explanation of the roster changes:
  1. Changed shift time from late shift to day shift. CN2 made this change altering the shift from a late shift to a day shift.
  1. Additional day shift plotted in roster by CN2. This was an unauthorised change from which the Appellant contrived a financial benefit.
  1. Additional day shift plotted in roster by CN2. This was an unauthorised change from which Appellant contrived a financial benefit.
  1. Appellant made an unauthorised changed to this shift creating an 8-hour day shift to day shift (6-hour shift). Appellant later again made an unauthorised change to this roster the details of which are provided in item 6 below.
  1. Appellant made an unauthorised change allocating an additional Sunday late shift. By adding herself to an extra Sunday shift when she was not rostered to work the Appellant contrived a financial benefit of additional hours of work and shift penalties payable for Sunday shifts.
  1. Appellant made an unauthorised change allocating this shift from a day shift (8-hour shift) to day shift (6-hour shift). This change occurred after CN2 made an unauthorised change to the roster for a reduced shift, then the Appellant reversed the shift from 6-hour shift to 8-hour shift thus contriving a financial benefit of an additional 2 hours.
  1. Appellant made an unauthorised change allocating this this day shift to a late shift. By changing the shift time, the Appellant contrived a financial benefit as a result of the shift penalty payable for performing a late shift.
  1. Appellant made an unauthorised change allocating this from day a shift to late shift. By changing the shift time, the Appellant contrived a financial benefit as a result of the shift penalty payable for performing a late shift.
  1. Appellant made an unauthorised change creating an additional management/training shift (The Appellant was on leave at the time the change was made). By making this change the Appellant contrived a financial benefit of an extra shift for CN2.
  1. [95]
    The initial QNMU show cause response correspondence dated 29 August 2024[17] contends in paragraph 23 for the allegation to be substantiated, it is incumbent on the decision maker to find that, in compliance with the Briginshaw standard, that the Appellant:
  1. a.
    Was not authorised to make changes to the roster;
  2. b.
    That the changes she made to the roster did not get approved (those shifts were not reimbursed);
  3. c.
    That the Appellant obtained an improper benefit (a benefit she was not otherwise entitled to); and therefore
  4. d.
    Her conduct was inappropriate.
  1. [96]
    In my view the submission from the QNMU is correct as to the elements that have to be established by the Respondent in the present appeal to support a disciplinary finding, particularly one where there is a suggestion of corrupt conduct.
  2. [97]
    The determination of whether the disciplinary finding made against the Appellant is fair and reasonable requires an understanding of the rostering process that is currently in place and operating at GCUH ED.

Rostering Guidelines and Policies

  1. [98]
    The Respondent places some reliance in reaching the disciplinary finding against the Appellant upon the EB, and in particular clause 68.1[18] which relevantly provides:
  1. 68
    Rostering

For the purposes of clause 15.5(e) of the Award, rosters must be displayed in a place conveniently accessible to employees at least 14 days before the commencement of each four-weekly work cycle.

  1. 68.1
    Principles of Best Practice Rostering: Queensland Health Guidelines
  1. The parties agree the Principles of Best Practice Rostering: Queensland Health Guidelines continue to be an important tool to promote and facilitate consistency of practice with respect to rostering across Queensland Health. The parties agree the guidelines should inform all rostering.
  1. Employees responsible for rostering should be familiar with the Guidelines and where possible use them in the creation of rosters. (Emphasis added)
  1. The parties will update the Best Practice Rostering Guidelines to include work undertaken in accordance with clause 49.1 of the NMEB10 and to consider changed requirements in this Agreement, including in relation to fatigue leave following telephone recall and the right to disconnect.
  1. [99]
    In relation to the BPR Guidelines[19] the Respondent only mentions principles 1 and 5 in its submissions filed on 28 November 2024. The relevant principles appear to be:

These rostering principles have been designed to assist in the development of rosters and form the basis for decision making. The principles are numbered for identification purposes only and do not indicate an order of priority:

Principle 1:  The organisation has appropriate governance and negotiation processes in place for developing rosters that promote accountability, consultation, collaboration and transparent decision-making in the creation, approval, posting, monitoring and reporting of rosters.

…

Principle 3: Nurses and midwives are rostered to provide a suitable skill mix to meet identified service demand and maintain patient safety.

…

Principle 5: Rostering conforms to relevant regulatory frameworks, including industrial awards and agreements, workplace health and safety legislation, antidiscrimination legislation and policies/procedures.

…

Principle 7: Rostering practices are based on co-operation between management and staff in order to promote fairness, equity and work-life balance, whilst still providing appropriate flexibility to facilitate organisational staffing needs.

(Emphasis added)

  1. [100]
    The BPR Guidelines in Module 2 go on to address the legal implications of rostering and in this section I specifically note the following:

Important points to consider and action in the development of a roster to limit a significant causal component of a court hearing include:

  • Maintain all award, certified agreement and HR Policy provisions when developing a roster
  • Deal with employees fairly and transparently when allocating shifts
  • If rostering a 24 hour service, monitor the roster for equity and fairness of allocation of shifts including night duty
  • Document all interactions involved in the development of the roster and maintain documentation on all shift changes
  • Maintain and store completed published rosters (including changes) in accordance with the Queensland Health Clinical Records Management Policy, Procedure and Implementation Standards which outlines the mandatory auditable requirements for the management, appraisal and disposal of administrative, clinical and functional records

…

Roster Responsibilities

The strategic responsibility and accountability for rostering is assigned to the executive director of nursing and midwifery who delegates the responsibility to a nursing/ midwifery director, nurse/ midwife manager, or the nurse/ midwife unit manager. The task of developing the roster may be further delegated to a 'roster coordinator'. The roster coordinator manages the portfolio of roster development in partnership with the nurse/ midwife unit manager. The nurse/midwife unit manager or delegate approves the published roster.[20]

(Emphasis added)

  1. [101]
    GCHHS does not have a documented (current) rostering policy or procedure in place to guide staff like the Appellant who have responsibility for roster preparation and the management of roster changes over the life of the roster.
  2. [102]
    Regarding Principle 1 of the BPR Guidelines, the Decision-Maker has made no reference in either SC1 or SC2 the disciplinary finding decision to any appropriate governance or negotiation processes in place at GCUH ED to 'monitor' the roster, for example regarding changes or amendments to the roster. Further, the Respondent has not provided any further evidence of the existence such appropriate governance or negotiation processes in the Respondent's submissions.
  3. [103]
    In the Respondent's submissions ultimately filed on 28 November 2024, the Respondent submits that both the Respondent and the Appellant are bound by EB11 and specifically, clause 68.1 which refers to the BPR Guidelines. The Respondent notes that the BPR Guidelines provides for seven principles upon which rosters are built and administrated.[21]
  1. [104]
    In the Appellant's submissions, in relation to the Respondent's reliance upon the BPR Guidelines, the Appellant submits that this document provides for seven principles upon which rosters are built and administered (emphasis added). The Appellant contends that the present appeal does not involve roster builds and due to the unique and complex departmental needs, local guidelines were created in 2015 to guide practice and to provide frameworks for departmental operations.[22]
  2. [105]
    The underlined passages from the BPR Guidelines appear to support the Appellant's contention that the BPR Guidelines specifically address the construction and development of rosters rather than changes or variations to the roster which occur following the publication of the roster.
  3. [106]
    In SC1, the Decision Maker has made specific reference to clause 68.1 of EB11 and to the BPR Guidelines but then has not explained how the actions of the Appellant in picking up additional shifts and/or making changes to her roster, that occur following the publication of the roster, breach or contravene clause 68.1 of EB11 and the BPR Guidelines. As a consequence, I consider that SC1 does not satisfy the requirements of clause 9.3 of the Discipline Directive and s 27B of the AI Act.
  4. [107]
    The Appellant goes on to note that GCUH ED had a local policy (guideline) entitled 'GCHHS Work Instruction – Roster Management' which was published in 2015 with a stipulation for a review to occur every three months.[23] The Appellant further notes that requests were made to the Respondent for any updated local guidelines, however, these were not provided by the Respondent.[24] It therefore appears that the three monthly reviews of the local rostering guidelines have not occurred. As a consequence, it is not clear whether the local guidelines continued to have any relevance to the rostering process in 2024 (particularly after the creation of the CNR positions).
  5. [108]
    I have noted the contents of the Work Instruction, however, given that:
  1. there does not appear to have been any three-monthly reviews of the Work Instruction;
  1. there is no reference to this Work Instruction in either SC1 or SC2 by the Decision Maker,

I am satisfied that the Work Instruction was no longer current in 2024, and the contents of the Work Instruction were not relied upon by the Decision Maker in making the disciplinary findings. Consequently, the Work Instruction is of limited relevance to this appeal.

The Rostering Process utilised at GCUH ED in 2024

  1. [109]
    The approach taken by the Decision Maker in both SC1 and SC2 seems to reveal a fundamental misunderstanding as to how the rostering process occurs at the GCUH ED.
  1. [110]
    The allegation set out in SC1 appears to be premised upon an understanding by the Decision Maker that the only method via which shift changes and/or the picking up of additional shifts could occur is via the digital diary.[25] This flawed understanding of the rostering process is carried over into the disciplinary findings reached by the Decision Maker in SC2.
  1. [111]
    The Respondent's apparent flawed understanding of the actual rostering system in place at GCUH ED is then apparently carried over into the Respondent's submissions filed on 28 November 2024. In its submissions the Respondent contends the roster is initially presented in draft form and shifts not filled (for example, emergent or planned leave coverage) are presented in a ''work diary'' which is managed in electronic form. The Respondent then contends that the electronic diary is published to the workforce prior to the roster being settled and approved by the Nurse Unit Managers for the period which the roster covers.[26]
  1. [112]
    The Respondent submits that the review found that the two CNRs were manipulating how and when the diary was published so that the premium shifts were first secured by themselves before the other nurses were aware of their existence. The Respondent further alleges that the CNRs were not disclosing to their NUM that they had secured preferential shifts through allocating such to themselves, before publishing available shifts to the nursing team via the digital diary.[27]
  1. [113]
    The Respondent submits that the two CNRs had developed a system whereby they accessed the work diary prior to it being published to all staff and gave preference to each other to obtain shifts which provided additional payments through loadings, such as late shifts or weekend penalty shifts. Once those shifts were secured by each CNR they would then publish the roster to other staff.[28] (Emphasis added)
  1. [114]
    The Respondent contends that the effect of this process, was to secret those available shifts from other staff so that the CNRs would choose the most profitable shifts to work and assign them to each other, before other staff would be made aware they had become available. The Respondent submits that these alleged actions contradicted Principle 1 and Principle 5 of the BPR Guidelines.[29]
  1. [115]
    On the Respondent's understanding of the rostering process, the changes that the Respondent alleges were being made inappropriately by the CNRs were being made prior to the roster being finalised and approved by the NUM. Further, it also appears that the Respondent maintains that the only method via which additional shifts could be picked up is via the digital diary and that the digital diary is 'published’ or made available to ED nursing staff to allow shifts to be filled prior to the finalisation and publishing of the roster.
  1. [116]
    In the show cause response to SC1 provided by the QNMU dated 29 August 2024, the rostering process utilised by GCUH ED is set out in some detail.
  1. [117]
    It is firstly submitted that GCUH ED did not currently have a formal rostering policy or procedure.[30] In light of the analysis set out above, I accept that this is correct. The response goes on to note that in relation to the BPR Guidelines, they are a general overarching guide which is not intended to be definitive of any process or policy for individual workplaces/departments.[31] That is, they are a guide only.
  1. [118]
    The QNMU then note that GCHHS ED rosters approximately 400 staff each month and difficulties with the rostering process caused the creation of the Clinical Nurse Rostering position on 26 October 2022.[32]
  1. [119]
    The CNR position is a Monday to Friday position including 1 clinical shift per fortnight only. CNR staff are permitted to 'pick-up' additional shifts in accordance with their contract of employment and to ensure that they are not adversely treated.[33]
  1. [120]
    The roster is designed for the staff subsections. The CRN (allocated team member) designs for level 7 nurses, clinical nurses, and triage trained nurses. The design encompasses skill set and mix, plus the grade 7 raptor flow position.[34]
  2. [121]
    Once the initial roster has been plotted, it is sent to the Roster Nurse Manager, Liz Fountain and the A04 payroll staff to audit. Ms Fountain and the AO4 staff ensure the roster complies with the EBA and best practice guidelines.[35] In the Appellant's submissions it is noted that the roster is a published document which goes through a formal audit process and is signed off by the NUM or Roster Manager and is released to staff every third Friday and spans four weeks in its publication. Once it is published, staff have multiple avenues to pursue changes or to pick up shifts.[36]
  3. [122]
    'Publishing' is when the roster goes 'live', which is always on a Friday.[37]
  4. [123]
    After publishing (of the roster), one of the CNR team opens the online diary, writes an email to all staff, and posts on the Facebook 'shift swap' page, those shifts are now available to be 'picked-up'.[38] (emphasis added)
  5. [124]
    Shifts can be 'picked-up' in any one of the following ways:
  1. a.
    Via the on-line diary;
  2. b.
    Via the roster email group;
  3. c.
    By calling the CNR team;
  4. d.
    By emailing anyone on the CNR team directly to their QHealth email; and/or
  5. e.
    By dropping into the CNR team 'pod' during working hours.[39]
  1. [125]
    The QNMU allege that the following various positions can action a shift `pick-up’, swap or amendment to the roster: CNR (team), CNC, shift co-ordinator (which can be any permanent clinical nurse), rostering manager, any NG level 7 and the A04 roster staff.[40]
  2. [126]
    It would therefore appear that the Appellant and CNR2 (and indeed a number of other employees) hold the requisite express or delegated authority to make changes to the roster, whether that be their own roster, or that of other ED staff. Further, it would appear to be implicit within the CNR role that the authority to make changes to the roster is a necessary function of the role.
  3. [127]
    Further, given the various means of seeking either additional shifts or a change/amendment to the roster (as outlined in paragraph [124]), it appears that any member of the ED nursing staff can nominate for extra shifts or seek a change to their roster, whether they are off or on duty.
  1. [128]
    The show cause response goes on to note that between these staff members approximately 60 roster changes are made each day (or 300 per roster). In some cases, allocations are made and then staff are 'shuffled' to fill a more crucial shift or skill shortage (sick leave coverage etc). Sunday morning shifts are most valued, so it is usual for the Appellant to shuffle her own shift 'pick-ups' around staff requests to get full roster coverage.[41]
  1. [129]
    There is no indication on the material available to me (or to the Decision-Maker), that there was any direction, instruction, policy or procedure in place restricting either the Appellant or CN2 from making changes to their own roster or each other's roster.
  2. [130]
    The show cause response also notes that the standard roster has a 10-hour night shift (which is where the 6-hour shift comes from). The QNMU report that for at least the past four years (which includes prior to the Appellant commencing the CNR position) all 'pick-up' shifts have been set at 8 hours, not 6 hours. A 6-hour shift will be allocated where the staff member requests it, or if they are limited by contract or fatigue management. It is usual for staff in ED to have low FTE hours so they can 'pick-up' shifts which accommodate a work life balance and their family needs.[42]
  3. [131]
    The show cause response records in summary, all 'pick-up' shifts are otherwise 8 hours, both for the Appellant and for all eligible staff.[43]
  4. [132]
    As regards changes or amendments to the published roster, the show cause response to SC1 notes that any changes made to the published roster generate what is called an AVAC form. It is a detailed description of the changes and who made them. This is printed off by the A04 staff member and is signed each morning by the roster manager. If they are not present, the nurse unit manager Emily Davis will sign them off.[44] It appears that only after the AVAC form has been signed by either the Roster Manager or the NUM, that the change or alteration to the roster is approved.
  1. [133]
    The Appellant submits that unless the shift amendment is authorised, it cannot be actioned by payroll. The QNMU contend that if the Appellant's shift amendments were not authorised, she would not have been paid. Furthermore, she would have been spoken to at the relevant time after the relevant shift had been identified.[45]
  1. [134]
    In the Appellant's submissions filed on 3 December 2024, the Appellant addresses the Respondent's contentions regarding the rostering process that are set out in paragraphs [111] to [115] above as follows:
  • In relation to the Respondent's allegation of a violation of Principle 1 of the BPR Guidelines to ensure opportunity of equal access to shifts are provided, the Appellant states that the current practice within the department is that after publication of the roster, staff can call the CNR, email, walk into the CNR ''pod'', or use the Digital Diary to seek additional shifts or roster changes. The Appellant notes that GCUH ED is one of the largest nursing cohorts and thus requires multiple ways for staff to initiate roster changes that best suit them and create equal access. The Appellant further contends that access is equal in terms of the variety of ways to action shift pick ups or modifications and these can only occur post publication of the roster by the Nurse Manager of Rostering.[46] (Emphasis added)
  • The Appellant submits that shift pick-ups are determined by skills mix, patient safety and operational needs, and due to these complexities, the CNR role was created. She further notes that in her 0.1 FTE Clinical Nurse role, the Appellant works as a Clinical Nurse on the floor and this role is often in the highest demand to ensure safe skill mixes.[47]
  • The Appellant disputes the Respondent's contention that a 'draft' roster with shift deficits is produced prior to publication of the roster and the Appellant contends that this suggestion is factually incorrect. The Appellant submits that the roster is a published document, it goes through a formal audit process and is signed off by the NUM or the Roster Manager and is released to staff on a Friday and spans four weeks in its publication. Once the roster is published, staff have the multiple avenues discussed above to pursue changes or to pick-up additional shifts.[48]
  • The Appellant further disputes the Respondent’s suggestion that shifts not filled in the 'draft roster' are presented in the ''work diary''. The Appellant states that the work diary is a simple spreadsheet where people list their names on the three shifts available each day. A typical day can have 15-30 sick calls from publish to working so the diary enables the CNR to fill in known gaps and as leave emerges fill in shifts.[49]
  • In relation to the Respondent's contention that the Appellant and CN2 were secretly securing more profitable shifts for themselves prior to the publication of the roster and the digital diary and then publishing the roster, the Appellant contends that the CNRs are not involved with roster publishing. The Appellant further submits that no shifts are available to be picked up prior to publishing of the roster as this would place GCHHS over its contracted FTE which violates best rostering practices. The Appellant notes that this would be established in the roster audits that are filed and provided to the executive team.[50]
  • The Appellant concludes her response by noting that any shift picked up by any staff must be done after publishing of the roster to adhere to best rostering practices for publication. The Appellant contends that the shifts she picked up were done using the same methods and with the same availability (or opportunity) as any other ED nursing staff member after the publication of the roster.[51]
  • The Appellant also contends that the Respondent has not provided any evidence that established that the shifts she picked up prevented other staff from working. The Appellant submits that the roster ''count'' at publishing for the time frame of the allegations, reveals that the roster was down 187 shifts. The Appellant submits that this was not uncommon for GCUH ED, and that number was prior to any sick leave, emergent leave or resignations.[52] I take this submission as supporting the Appellant's contention that there were a significant number of other shifts available to be picked up, including weekend shifts, and that the Appellant's picking up of a Sunday shift did not prevent other staff from accessing penalty shifts.
  1. [135]
    The QNMU in the initial show cause response to SC1 and the Appellant in her submissions have provided a detailed description of how the rostering system in place at the GCUH ED operated as at the time of the allegations. In addition, a cogent and convincing explanation has been provided as to how changes and amendments were made to the roster, including staff picking up additional shifts following the publication of the roster.
  2. [136]
    I accept and prefer the information that has been provided by the QNMU and the Appellant regarding how the rostering system operates at GCUH ED.
  1. [137]
    I do not accept the Respondent's position that the digital diary was the only system in place for ED nursing staff to obtain additional shifts or to make changes to their roster. I also do not accept the Respondent's contention that the Appellant and CN2 were accessing additional shifts prior to the publication of the roster to the ED nursing staff at large.
  2. [138]
    I am satisfied that the Respondent has acted upon a flawed understanding of the rostering system in place at the GCUH ED and that this flawed understanding has tainted both the initial show cause correspondence sent to the Appellant, and more importantly, the second show cause letter and the disciplinary findings made in that correspondence. On this basis alone, the disciplinary decision to find that:
  • the allegations against the Appellant were substantiated; and
  • that pursuant to s 91(1)(b) of the PS Act the Appellant was guilty of misconduct,

was not fair and reasonable.

  1. [139]
    In SC2[53] the Decision Maker alleges as one of the key dot points under the heading of 'My findings' that he has 'given significant weight to the Appellant's response to SC1 in which the Decision-Maker alleges that the Appellant had provided a consistent account of events as how the digital diary operates when rostering in the Emergency Department'.
  2. [140]
    In reality, SC2 is silent as to any factual analysis of the information provided by the QNMU in the initial show cause response dated 29 August 2024. As summarised above, the QNMU has provided a detailed description of not only how the digital diary operated, but also the rostering process in general and how there were various avenues for staff to pick up additional shifts and make changes to their roster.
  3. [141]
    This information was largely contradictory to the assertions made by the Decision Maker in SC1. The Decision Maker has completely failed to address those matters in making the disciplinary findings. In doing so, I am satisfied that the Decision Maker has failed to clearly explain his finding of fact on the balance of probabilities and the evidence he relied upon to reject the information provided by the QNMU.
  4. [142]
    I am therefore satisfied that the Decision Maker has failed to comply with s 27B of the AI Act and clause 9.4(c) of the Discipline Directive. This is a further ground upon which the disciplinary findings decision is not fair and reasonable.

Shift changes were unauthorised

  1. [143]
    In SC1, each of the particulars alleges that the changes made by either the Appellant or CN2 were inappropriate and made without authorisation. In finding the allegation to be substantiated, the Decision-Maker has therefore accepted that each of the roster changes set out in the particulars in SC1 were unauthorised or unapproved.
  2. [144]
    As noted earlier in these reasons, at the relevant time, GCUH ED did not have a relevant rostering policy or procedures document which established how the CNRs, and indeed the other staff who were able to make changes to the roster, were to perform their respective roles.
  3. [145]
    Further, both in SC1 and in SC2, the Decision Maker has failed to establish:
  • What the accepted process was for seeking authorisation for a staff member to make a change to the roster, for example, was the authorisation  required in writing, or was oral permission sufficient;
  • From whom authorisation to make a change should be sought;
  • When the authorisation should be sought;
  • How the actions of the Appellant and CN2 did not comply with the accepted process in operation at GCUH ED in the period from April to June 2024.
  1. [146]
    In the absence of this information being provided, in my view once again SC2 is not compliant with s 27B of the AI Act and clause 9.4(c) of the Discipline Directive. Further, the absence of this type of evidence means that the finding by the Decision Maker that the changes made by the Appellant and CN2 were unauthorised is not sound and should not be maintained.
  2. [147]
    As indicated earlier in these reasons, I am satisfied on the balance of probabilities that given the nature of the CNR role, that the Appellant (and the other staff identified in paragraph [125] above) had either express or implicit authorisation to make changes to the roster. In the absence of there being either a policy, procedure or a direction to the contrary, I am also satisfied that the Appellant had the necessary authority to make changes to her own roster and that of CN2.
  3. [148]
    The Decision Maker also fails in SC2 to address in any way, the information provided by the QNMU in the show cause response to SC1, that any changes made to the roster following the publication of the roster are then documented in an AVAC form which includes a detailed description of the changes and who made them. This form is ultimately signed each morning by the Roster Manager (or delegate) to authorise or approve the roster change, and to allow this to be actioned by payroll.
  4. [149]
    Given that process, in my view the finding that the changes made by the Appellant and CN2 were not authorised by senior management is simply not open. This is a further ground for finding that the disciplinary finding was not fair and reasonable.

Analysis of the roster changes

  1. [150]
    Finally, it is also necessary to analyse the various shift changes that the Respondent has identified and relied upon as particulars of the allegation that on six occasions whilst part of the GCUH ED's rostering team the Appellant inappropriately amended the roster for herself and CNR2, and by taking those actions the Appellant contrived an improper benefit.
  2. [151]
    This analysis must be undertaken in the context of the Respondent's contention in its submissions, that the changes made by the Appellant and CNR2 were made prior to the roster being published, and that by making concealed or secret changes prior to the publication of the roster, the Appellant and CNR2 contrived a financial benefit.
  3. [152]
    The first difficulty encountered in this exercise is that the Respondent has provided contradictory information as to when the relevant roster was published. At pages 4 and 5 of SC1, the Respondent has provided images of the roster and under each roster is included the following 'Roster published: 23/04'.
  4. [153]
    At page 9 of SC1, the Respondent contends that the roster for 13 May 2024 to 9 June 2024 was released to staff on 26 April 2024 at 8:24 am. At page 7 of SC1, the Decision Maker has copied the email from the Appellant sent to all staff at 8:24 am on 26 April 2024 that confirms that the digital diary was now open. This email makes no mention of the roster being published. It is therefore open to infer that the Decision Maker has conflated the release of the digital diary with the publication of the roster.
  5. [154]
    This contradiction as to the timing of the publication of the roster is not addressed in SC2 or the Respondent's submissions.
  6. [155]
    Quite simply, if the roster was in fact published on 23 April 2024, and after that time ED nursing staff had the ability to seek changes or pick-up shifts in the other ways contemplated in paragraph [124]b. to e. above for two to three days prior to the publication of the digital diary, the Respondent's allegation of misconduct by the Appellant must fail.
  7. [156]
    The further difficulty for the Respondent is that each of the changes that are referenced at pages 1 to 3 of SC1, all occur after the roster has been published (and not before the publication of the roster as alleged by the Respondent in its submissions). These changes would therefore not constitute the Appellant and CN2 secretly rostering themselves to prime shifts to the detriment of other staff.
  8. [157]
    One of the particulars to the sole allegation, is that on 16 April 2024, the Appellant inappropriately rostered herself for an additional shift for 2 June 2024 without authorisation. Given that the roster was not published (and therefore not approved by the NUM or Roster Manager) until either 23 April 2024 or 26 April 2024, this change could only have occurred during the rostering process, and it was subsequently approved prior to the publication of the roster. I am satisfied that this particular could not therefore support a finding of misconduct against the Appellant.
  1. [158]
    The first particularised roster change relied upon by the Respondent is a change made to the Appellant's roster for Wednesday, 22 May 2024 which was made by CN2 (and not the Appellant). This change was made on 8:37 am on 26 April 2024, and therefore after both the publication of the roster, but also the digital diary. I note that the Appellant was already rostered to work a late shift on 22 May 2024 (and it is not clear whether this would attract a higher payment). The effect of the change was to alter the late shift to a day shift. I am satisfied that this was simply a variation to the roster and that the Appellant did not obtain a financial benefit from this change. This particular could not support the allegation that the roster change was inappropriate and establishes misconduct on the part of the Appellant. Further, I am satisfied that the Appellant did not contrive any financial benefit from this roster change.
  1. [159]
    Roster changes 2 to 5 all occur on 26 April 2024, with the first two changes made by CN2 at 8:37 am for additional day Sunday shifts for the Appellant on Sunday 19 and 26 May respectively, and roster changes 4 and 5 being made at 8:45 am by the Appellant. All of those changes occurred post the publication of the roster and post the publication of the digital diary. Those changes cannot therefore be the type of secretive conduct referred to by the Respondent in its submissions. I am not satisfied that these particulars support a finding that the changes were inappropriate or that the changes involved misconduct on the part of the Appellant.
  1. [160]
    In relation to the Sunday shifts being claimed by the Appellant, the QNMU show cause response to SC1 notes prior to accepting the CNR position, the Appellant consistently 'picked-up' 2-3 Sunday shifts per month. The QNMU note that whilst the weekend shifts are financially more beneficial, they are also the only extra shifts that the Appellant is able to 'pick-up' due to her family commitments and her commitments Monday to Friday in the CNR role.[54]
  2. [161]
    The Appellant contends that during the 1.5 years that she has been in the CNR role, she has not been informed or instructed that there were restrictions on the types of shifts she could obtain on the casual roster.[55]
  3. [162]
    QNMU and the Appellant contend that it is almost always possible to pick-up a weekend shift if you are a senior nurse and therefore the Appellant in picking-up additional shifts has not denied or prevented other staff from doing so.[56]
  4. [163]
    The Appellant and the QNMU contend that there are no shortage shifts available to be 'picked up' including weekend shifts. Given the availability of weekend shifts for the staff of like skill set, the Appellant maintains that any request made by that cohort for a Sunday shift would be accommodated.[57]
  5. [164]
    I further note that in the QNMU response to SC1, the QNMU requested that the Respondent undertake an audit of the Appellant's roster for at least two years as this would evidence her long-standing weekend work shift pattern. This request was made in the interests of natural justice and procedural fairness.
  6. [165]
     The Respondent failed to undertake the audit requested by the Appellant. I am satisfied that the Respondent's failure to undertake what appears to be a reasonable request for further investigations to be undertaken, constitutes a further basis to find that the disciplinary finding decision was not fair and reasonable.
  7. [166]
    Given this consistent working history by the Appellant of picking up a Sunday shift that both pre-dated and post-dated her appointment as one of the CNR staff, and given that she was entitled as part of her 0.1 FTE role as a Clinical Nurse to pick up additional shifts, I am not satisfied that the allegation that the Appellant has utilised the CNR role to contrive a financial benefit has been made out.
  1. [167]
    Roster changes 6 to 8 all occur on 29 April 2024, some three days following the publication of the digital diary and either 3 or 6 days following the publication of the roster. The other nursing staff therefore had a three-day or six-day window to claim the late shifts referred to in roster changes 7 and 8.
  2. [168]
    In relation to roster change 6, this simply involved the alteration of the hours of the day shift from 8 to 6 and then back again. I am satisfied that an explanation for those changes was provided by the QNMU in the show cause response to SC1 as summarised in paragraph [130] above.[58]
  3. [169]
    I am therefore satisfied that particulars 6 to 8 do not support a finding that the changes made were inappropriate or were evidence of misconduct on the part of the Appellant.
  4. [170]
    Roster change 9 relates to a change made by the Appellant on 12 May 2024, either 17 or 20 days post the publication of the roster and 17 days post the publication of the digital diary. The effect of the change was to create an additional management/training shift for CN2 for the following day. Clearly there was a vacancy in the roster that other nursing staff had not taken up. Once again, I am not satisfied that this particular supports the allegation of misconduct by the Appellant.
  5. [171]
    Given that analysis, it is not clear to me how the Decision Maker could reach a finding that the allegation had been substantiated to the standard required by the Briginshaw[59] decision for an allegation involving corrupt conduct.
  6. [172]
    In addition, for the reasons set out above, I am also of the view that the grounds set out in the disciplinary finding decision (SC2) for finding that the allegation was substantiated were inadequate and did not comply with the requirements of s 27B of the AI Act and clause 9.4(c) of the Discipline Directive.

Conclusion

  1. [173]
    In light of the conclusions set out above, I find the decision to substantiate the allegation was not fair and reasonable.

Order

  1. [174]
    The Commission makes the following orders:
  1. The decision appealed against is set aside; and
  2. The decision appealed against is substituted with the following decision:
  1. Allegation One is not substantiated.

Footnotes

[1]Attachment 1 Form 89 – Correspondence from Mr Grant Brown on 13 September 2024.

[2]Briginshaw v Briginshaw (1938) 60 CLR 336, 362.

[3]Lavercombe v Legal Services Commission [2023] QCAT 58, [21].

[4]See R Lindsay, Disciplinary Hearings: What is to be done? 80 AIAL Forum, 77.

[5]Section 32(4)(b) of the Public Sector Act 2022 (Qld); see also O'Hearn v State of Queensland (Queensland Health)[2023] QIRC 283, [31] (Industrial Commissioner Power).

[6]Industrial Relations Act 2016 (Qld) s 562B(3).

[7]Ibid, 562B(4).

[8]Goodall v State of Queensland (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). 

[9]Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).

[10]Briginshaw v Briginshaw (1938) 60 CLR 336.

[11][2022] QIRC 16.

[12]Ibid, at [25], citing Pope v Lawler [1996] FCA 1446. 

[13]Colebourne (n 15) at [21]-[22] and [25].

[14]Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the 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.

[15]Show Cause letter dated 30 July 2024 from Mr Grant Brown, Executive Director People and Operations, GCHHS.

[16]This allegation appears problematic given that the roster was not published until Friday, 26 April 2024, therefore, this change if it occurred on 16 April 2024 would have pre-dated the finalisation of the roster and the approval of that roster by the Nurse Manager of Rostering.

[17]Form 89 – Appeal Notice – Attachment 2 - QNMU response dated 29 August 2024 to the first show cause letter.

[18]Respondent's submissions filed 20 November 2024, Attachment A.

[19]Ibid, Attachment B.

[20]Ibid.

[21]Respondent's submissions filed 28 November 2024, (2).

[22]Appellant's submissions filed on 3 December 2024, (2).

[23]Ibid.

[24]Ibid.

[25]SC1, page 7, paragraph (e).

[26]Respondent's submissions, (14).

[27]Ibid.

[28]Ibid.

[29]Ibid, (15).

[30]QNMU SC1 response dated 29 August 2024, (4).

[31]Ibid.

[32]Ibid, (5).

[33]Ibid, (6).

[34]Ibid, (10).

[35]Ibid, (11).

[36]Appellant's submissions filed on 3 December 2024, page 4, (1).

[37]QNMU SC1 response, (12).

[38]Ibid, (13).

[39]Ibid, (14).

[40]Ibid, (15).

[41]Ibid.

[42]Ibid, (16). This would appear to explain the changes made to the Appellant's shift on 22 May 2024, which is the subject of roster changes 4 and 6.

[43]Ibid.

[44]Ibid, (17).

[45]Ibid, (18).

[46]Appellant's submissions filed 3 December 2024, (5).

[47]Ibid, (6).

[48]Ibid, (1) under the heading of 'Respondents Claims of Misconduct', page 4.

[49]Ibid, (2), pages 4-5.

[50]Ibid, (3), page 5.

[51]Ibid.

[52]Ibid, (7), page 3, under the heading Relevant Background.

[53]Second show cause correspondence from Mr Grant Brown, dated 13 September 2024.

[54]QNMU show cause response dated 29 August 2024, (7).

[55]Appeal Notice, Schedule A, (26).

[56]N 54, (7).

[57]Ibid, (8).

[58]Citing paragraph 16 of the show cause response to SC1 dated 29 August 2024.

[59]Briginshaw v Briginshaw (1938) 60 CLR 336.

Close

Editorial Notes

  • Published Case Name:

    Sebastian v State of Queensland (Queensland Health)

  • Shortened Case Name:

    Sebastian v State of Queensland (Queensland Health)

  • MNC:

    [2025] QIRC 64

  • Court:

    QIRC

  • Judge(s):

    O'Neill IC

  • Date:

    05 Mar 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
Briginshaw v Briginshaw [1938] HCA 3
1 citation
Jump To
Cite 1 - [1938] HCA 3
Briginshaw v Briginshaw (1938) 60 C.L.R 336
4 citations
Jump To
Cite 1 - (1938) 60 C.L.R 336
Cite 2 - (1938) 60 C.L.R 336
Cite 3 - (1938) 60 C.L.R 336
Cite 4 - (1938) 60 C.L.R 336
Colebourne v State of Queensland (Queensland Police Service) (No. 2) [2022] QIRC 16
2 citations
Jump To
Cite 1 - [2022] QIRC 16
Cite 2 - [2022] QIRC 16
Lavercombe v Legal Services Commission [2023] QCAT 58
2 citations
Jump To
Cite 1 - [2023] QCAT 58
Cite 2 - [2023] QCAT 58
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
2 citations
Jump To
Cite 1 - [2023] QIRC 283
Cite 2 - [2023] QIRC 283
Page v Thompson [2014] QSC 252
2 citations
Jump To
Cite 1 - [2014] QSC 252
Cite 2 - [2014] QSC 252
Pope v Lawler [1996] FCA 1446
1 citation
Jump To
Cite 1 - [1996] FCA 1446

Cases Citing

Case NameFull CitationFrequency
Isermann v Professional Property Inspections Pty Ltd & Ors [2025] ICQ 94 citations
Ondrich v ASM Global Convex Pty Ltd & Ors [2025] QIRC 803 citations
1

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