Akkamparambil v State of Queensland (Queensland Health) [2026] QIRC 182

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Akkamparambil v State of Queensland (Queensland Health) [2026] QIRC 182 PARTIES: Akkamparambil, Biju (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2025/165 PROCEEDING: DELIVERED ON: Public Sector Appeal – Fair Treatment Decision 29 May 2026 MEMBER: HEARD AT: Power IC On the papers ORDER: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The decision is set aside; 2. The matter is returned to a new decision maker, with a copy of the decision on appeal; 3. The Appellant is to be provided with all material relied upon in the determination of disciplinary findings; and 4. The new decision maker is to consider the disciplinary findings afresh after affording the Appellant an opportunity to respond. -- 1 of 13 -- 2 CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Sector Appeal – appeal against a decision pursuant to s 131(1)(d) of the Public Sector Act 2022 (Qld) – decision substantiated allegations and made disciplinary findings – Appellant not provided with all material relied upon by the decision maker – whether Appellant was afforded procedural fairness – whether decision was fair and reasonable. LEGISLATION AND OTHER INSTRUMENTS: Discipline Directive 05/23 cl 9 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. Goodall v State of Queensland & Anor [2018] QSC 319 Reasons for Decision Introduction [1] Mr Biju Akkamparambil ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as an NG1.1.6 Assistant in Nursing at Parklands Residential Aged Care Facility, Townsville Hospital and Health Service ('THHS'). [2] Ms Shellee Chapman ('the decision maker'), Executive Director People, Strategy and Governance at THHS advised the Appellant of her receipt of information which raised allegations about the Appellant's workplace conduct and asked him to show cause in relation to why a disciplinary finding should not be made against him under the Public Sector Act 2022 (Qld) ('the PS Act') in relation to the following allegations: 1. It is alleged that on various dates in September 2023 you failed to respect and consider the welfare of the residents [Patient One] and [Patient Two] when providing cares, specifically that: A. On the night duty of 1 September 2023, you entered the rooms of residents [Patient One] and [Patient Two] and abruptly clapped loudly under their chin causing them to be frightened and agitated; -- 2 of 13 -- 3 B. In September 2023, on dates not specified, when providing cares to [Patient One] and [Patient Two] you were rough causing the residents to feel panicked. 2. It is alleged that you failed to respect and consider the welfare of resident [Patient Three] when you continued to tickle [Patient Three] under the chin and speak in a manner that caused [Patient Three] to become agitated. 3. It is alleged that on various dates in October 2023, when providing cares to resident [Patient Four], that you failed to respect and consider the welfare of [Patient Four] when: A. On 21 October 2023 you tried to hug [Patient Four] even though she requested you stop and was distressed; B. On 30 October 2023 you tried to forcibly feed [Patient Four] even though she requested that you stop causing [Patient Four] to be distressed. 4. It is alleged that on 30 October 2023 you tried to forcibly feed resident [Patient Five], even though she requested that you stop, causing [Patient Five] to be distressed. 5. It is alleged that on 30 October 2023 you left resident [Patient Six] sitting on the toilet while you sat in her room on your personal mobile phone. 6. It is alleged that on 25 January 2024 that you failed to respect and consider the welfare of resident [Patient Seven] when providing cares when your conduct was inappropriate and/or rough and caused [Patient Seven] to be distressed. 7. It is alleged that on 25 January 2024 that you failed to respect and consider the welfare of resident [Patient Eight] when providing cares when your conduct was inappropriate and/or excessive force was used and caused [Patient Eight] to be distressed. 8. It is alleged that on 25 January 2024 that you failed to respect and consider the welfare of resident [Patient Nine] when providing cares when: A. The care provided by you was not in line with [Patient Nine's] care plan; and/or B. That inappropriate and/or excessive force was used; and C. Caused [Patient Nine] to be distressed. 9. It is alleged that on 26 January 2024 your conduct was inappropriate when you failed to attend to the cares of multiple residents when directed and that you did not adhere to your allocated break times. [3] Following receipt of the Appellant's response, the decision maker caused further inquiries to be made, obtaining additional material which was not provided to the Appellant for further response prior to the decision maker proceeded to determine the matter. [4] The decision maker determined that Allegations One, Three (b), Four, Six, Seven and Eight were substantiated on the balance of probabilities, and that the Appellant was guilty of contravening, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. -- 3 of 13 -- 4 [5] More specifically, the decision maker determined that the Appellant contravened clauses 1.5 and 3.1 of the Code of Conduct for the Queensland Public Service ('the Code'). [6] The Appellant was advised that serious consideration was being given to the disciplinary action of termination of his employment. The Appellant was also given seven days to provide a response as to why the proposed disciplinary action should not be taken. [7] The issue for determination is whether the disciplinary finding decision was fair and reasonable. Legislative Framework [8] Section 91 of the PS Act provides the following grounds for discipline: 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— (a) 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 (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or (f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (g) contravened, without reasonable excuse, a provision of— (i) this Act, other than section 39 or 40; or (ii) another Act that applies to the employee in relation to the employee's employment; or (h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. -- 4 of 13 -- 5 (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. (3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95. (4) To remove any doubt, it is declared that 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. (5) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or (b) 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 — (a) for a public sector employee, means— (i) standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or (ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and (b) 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 (c) 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. [9] Clauses 9.3 and 9.4 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector: 9.3 Show cause process for disciplinary finding (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) -- 5 of 13 -- 6 (b) written details of each allegation in clause 9.3(a) must include: (i) the allegation (ii) the particulars of the facts considered by the chief executive for the allegation (iii) the disciplinary ground under section 91 of the Act that applies to the allegation (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 (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 (e) the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension (f) if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them. 9.4 Decision on grounds (disciplinary finding) (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 (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 (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 (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 -- 6 of 13 -- 7 (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 (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. Appeal principles [10] The appeal must be decided by reviewing the decision appealed against.1 As 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 Industrial Relations Act 2016 (Qld) ('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. [11] 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 decision by the Respondent to substantiate the allegations and make the subsequent disciplinary findings against the Appellant was fair and reasonable in all of the circumstances. [12] Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [13] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. 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 & Anor [2018] QSC 319, 5. 4 IR Act, s 562B(3). -- 7 of 13 -- 8 Grounds of appeal [14] The Appellant attached a Schedule to his Appeal Notice outlining his grounds of appeal, submitting that the decision was unfair and unreasonable primarily on the basis that the Respondent denied the Appellant procedural fairness during the show cause process. [15] The Appellant submits that the show cause letter provided heavily censored or redacted material, rendering large parts missing or incomprehensible, while the decision maker presumably reviewed unredacted versions, and as such the Respondent failed to disclose unredacted copies to the Appellant as required. [16] The show cause letter anonymised complainants' identities (referred to as C1, C2), despite the decision maker knowing those identities and their inseparability from the particulars (as each complainant alleged direct involvement during the incidents). This deprived the Appellant of knowing the full case against him and responding effectively, particularly where credibility assessments were central, often pitting his credibility against a single complainant's, and where knowledge of a complainant's identity could reveal relevant prior complaints or interactions, affecting reliability. [17] Additionally, the Appellant submits that the decision letter introduced additional factual material not previously provided to the Appellant, which the Respondent then relied upon to substantiate allegations. This breached the obligation to afford the Appellant an opportunity to consider and respond to all relevant evidence before findings were made. [18] As such, the Appellant submits that these deficiencies (failure to provide unredacted evidence, complainant identities, and newly introduced material) constituted a denial of procedural fairness and natural justice, rendering the decision unsustainable. Submissions [19] The Commission issued a Directions Order calling for further submissions from both parties following receipt of the Appeal Notice. The submissions are summarised below. Appellant's submissions [20] The Appellant submits that the decision was unfair and unreasonable primarily because the Respondent denied them procedural fairness during the show cause process. Under the Directive, clause 9.3 requires the decision maker, before making a disciplinary finding, to provide the employee with written details of each allegation, particulars of the facts considered for each allegation, and a copy of all evidence relevant to the facts considered for each allegation. -- 8 of 13 -- 9 [21] The Appellant submits that the show cause letter heavily redacted the evidence provided, with large portions censored, missing, or rendered incomprehensible, with the Respondent failing to disclose unredacted copies to the Appellant as required. [22] The Appellant submits that following their response, the decision maker obtained and relied upon additional material, including resident progress notes, CareLynx records, and emails with line managers, without providing this material to the Appellant or affording him an opportunity to respond before finalising the decision which breached the obligation to disclose all relevant evidence in advance. [23] As such, the Appellant submits that the failure of heavy redaction of evidence and reliance on undisclosed additional material obtained after the Appellant's response contravened clauses 9.3(b)(ii) and 9.3(d) of the Directive and constituted a denial of procedural fairness and natural justice. [24] The Appellant also submits that he did not engage in the alleged misconduct, that the evidence was insufficient to reach reasonable satisfaction on the balance of probabilities, that the investigation was not thorough, and that significant evidence (such as progress notes, contemporaneous reports, and independent witness accounts) was missing. Respondent's submissions [25] The Respondent concedes there were procedural deficiencies in the show cause process leading to the decision, specifically under clause 9.3(d) of the Directive which provides that the chief executive (or delegate) must provide the employee with a copy of all evidence relevant to the facts considered for each allegation before making a disciplinary finding. [26] The Respondent submits that following the Appellant's response to the show cause letter, the decision maker obtained additional material including resident progress notes, CareLynx records from relevant residents' files, and information from the Nurse Unit Manager via email which was not disclosed to the Appellant, and thus the Appellant was not given an opportunity to respond to this material before it was considered in the decision. [27] The Respondent submits that this additional material was adverse to the Appellant's position and warranted disclosure along with a further chance to respond, in accordance with the requirements of the Directive and principles of natural justice (as reinforced by Queensland Health Human Resources Policy E10: Discipline, clause 9). [28] The Respondent accepts that these failures denied the Appellant procedural fairness, rendering the decision unfair and unreasonable. -- 9 of 13 -- 10 [29] The Respondent submits that the Commission should set the decision aside under s 562C of the IR Act and return the matter to a new decision maker (with a copy of the Commission's decision) to consider the disciplinary findings afresh. The new decision maker should provide the Appellant with all material to be relied upon and afford him a further opportunity to respond before determining the findings. [30] The Respondent opposes substitution of a decision that the allegations are not substantiated, as an appeal is a review of the original decision and process (not a rehearing),5 and the Appellant should have the chance to address all evidence – including the undisclosed material – in a renewed process. The broader issues raised by the Appellant can be properly considered by the new decision maker. Appellant's submissions in reply [31] The Appellant submits that the core issue in this appeal is whether the allegations were capable of substantiation on the balance of probabilities. [32] Regarding the Respondent's submissions, the Appellant submits that: • The Respondent's submissions on this point are limited, stating only that the Appellant's arguments about the weight afforded to his show cause responses do not necessarily render the decision unreasonable, and that the allegations remain capable of substantiation on the available evidence; • The Respondent admits procedural deficiencies in the show cause process, specifically that the Appellant was not provided with additional material obtained after his response (including resident progress notes, CareLynx records, and information from the Nurse Unit Manager via email) and was not given an opportunity to respond to it before the decision was made; • The Respondent proposes that the Commission set the decision aside and return the matter to a new decision maker to reconsider the disciplinary findings afresh after providing the Appellant with all material and a further opportunity to respond; • The Appellant opposes this proposed remedy as he has already addressed the additional material in detail in his appeal notice, meaning there would be little utility in repeating the show cause process solely to obtain another response to the same material; • The Respondent's reliance on section 562B(4)(a) of the IR Act to argue that the Commission cannot consider the Appellant's submissions on the additional material is misconceived; and 5 Goodall v State of Queensland [2018] QSC 319. -- 10 of 13 -- 11 • This proceeding is an appeal against a fair treatment decision under s 129 of the PS Act, not a promotion or disciplinary decision to which section 562B(4) applies. Even if section 562B(4) did apply, the Appellant's submissions do not introduce new evidence but merely critique the additional material as insufficient to prove the allegations to the required standard, which the Commission may properly consider. [33] The Appellant further submits that: • Returning the matter to a new decision maker would be unfair; • The disciplinary process has already been extraordinarily protracted since complaints were first raised in November 2023 and the Appellant has been suspended since 12 February 2024 (over 19 months at the time of submissions); • This prolonged suspension has caused significant hardship, including mental health difficulties requiring medical and psychological support, social isolation and stigma within his community affecting his family (including his children's reluctance to discuss him), financial barriers to home ownership or vehicle purchase due to rising costs during the suspension period, and inability to obtain registration as an Enrolled Nurse despite meeting the requirements where further delay would exacerbate these losses; • Both parties are in a position to resolve the substantive matter in this proceeding, and the Commission has all necessary information to do so; and • An order setting the decision aside and substituting a decision that the allegations are not substantiated would be the most just and expeditious outcome. [34] As such, the Appellant seeks an order under s 562C(1)(c) of the IR Act that the decision be set aside and substituted with a decision that Allegations One through Nine are not substantiated. Consideration [35] The question on appeal is whether the decision by Ms Chapman to substantiate the allegations and make a disciplinary finding was fair and reasonable in all of the circumstances. [36] The Respondent concedes that procedural deficiencies were present within the show cause process which denied the Appellant procedural fairness. -- 11 of 13 -- 12 [37] Specifically, the decision maker obtained the following additional material after receipt of the Appellant's response to the show cause letter: • Resident progress notes; • CareLynx records from relevant residents' files; and • Information from the Nurse Unit Manager via email [38] The additional information obtained was not disclosed to the Appellant despite the requirements of cl 9.3(d) of the Directive, which is outlined as follows: (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 [39] As a result of the information not being disclosed, the Appellant was not given an opportunity to respond to the additional information before it was considered by the decision maker. [40] I note the Respondent's concession that this additional material was adverse to the Appellant's position and warranted disclosure along with a further chance to respond. The Respondent also accepts that this failure was inconsistent with the requirement to adhere to the principles of natural justice as outlined in cl 9 of the Queensland Health Human Resources Policy E10: Discipline. [41] As has appropriately been acknowledged by the Respondent, the failure to provide procedural fairness rendered the decision unfair and unreasonable. [42] The Respondent proposes that the decision be set aside to allow the Appellant to be provided with all the relevant material and a further opportunity to respond before a fresh decision is made by a different decision maker. [43] The Appellant submits that such a course of action would be unfair on the basis that the disciplinary processes has already been protracted and further delay would be prejudicial to the Appellant. [44] The Appellant submits that he has already addressed the additional material in his appeal notice and there is little utility in repeating the show cause process solely to obtain another response to the same material. -- 12 of 13 -- 13 [45] The difficulty with the Appellant's proposal is that his appeal notice contains substantial reference to the lack of clarity around specific information and the lack of information provided to the Appellant in relation to particular allegations. It is not possible to determine if the decision was fair and reasonable when it is unclear whether the Appellant had access to all of the relevant information when the appeal notice was filed.6 [46] Further, it was submitted that if a particular witness "is the person who the Appellant has assumed", the Appellant would have had important information to bring forward regarding their credibility. Such a submission cannot reasonably be considered on appeal given its inherent ambiguity, however, it can be considered by the decision maker upon receipt of further information in response to a fresh show cause notice. [47] The IR Act requires consideration of whether the decision is fair and reasonable. On the basis of the clear and admitted failures to afford the Appellant procedural fairness, I cannot determine that the decision was fair and reasonable. Whilst it is unfortunate that the Appellant may have to go through the process of responding again to a show cause letter, it is the only process through which to ensure that the Appellant's response is fully informed by all of the relevant evidence before being considered by the decision maker. [48] It would not be appropriate to set aside the decision solely on the basis of the procedural deficiencies where the substantive allegations have not been determined following consideration of an informed response. [49] Accordingly, I am of the view that the decision was not fair and reasonable and should be returned to a different decision maker for consideration, following provision of all material relied upon to the Appellant. Order [50] I make the following order: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): 1. The decision is set aside; 2. The matter is returned to a new decision maker, with a copy of the decision on appeal; 3. The Appellant is to be provided with all material relied upon in the determination of disciplinary findings; and 4. The new decision maker is to consider the disciplinary findings afresh after affording the Appellant an opportunity to respond. 6 For example, see paragraph 27 of Schedule A attached to the Form 89 – Appeal Notice – Public Sector Act 2022 filed on 15 August 2025. -- 13 of 13 --