Buckton v State of Queensland (Queensland Health) [2025] QIRC 65

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Buckton v State of Queensland (Queensland Health) [2025] QIRC 065 PARTIES: Buckton, Susan (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO: PSA/2024/210 PROCEEDING: Public Sector Appeal – Appeal against a fair treatment decision DELIVERED ON: HEARING DATE: 11 March 2025 11 March 2025 MEMBER: HEARD AT: Dwyer IC Brisbane ORDER: 1. The decision under review is set aside; 2. The matter is returned to the decision maker for further consideration; and 3. A fresh decision must be made within 7 days of the Respondent receiving these reasons in writing CATCHWORDS: PUBLIC SECTOR ⎯ EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where employee working night shifts only – where employee suspended – where employee assigned to alternative duties – where alternative duties required working day shifts – where alternative duties inconsistent with caring responsibilities – meaning of ‘reasonable -- 1 of 11 -- 2 alternatives available to the employee’ – where alternative duties not reasonable – decision not fair and reasonable LEGISLATION: Industrial Relations Act 2016 (Qld) s 562B, s 562C Public Sector Act 2022 (Qld) s 101 CASES: APPEARANCES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018) S. Buckton, the Appellant, on her own behalf J. Chapman, Central Queensland Hospital and Health Service, on behalf of the Respondent Reasons for Decision ex tempore Background [1] Ms Susan Buckton is a Clinical Nurse. She is currently employed by the Central Queensland Hospital and Health Service (‘the respondent’). Ms Buckton has been a nurse for 60 years and has worked for the Capricornia Offender Health Service for 38 years. Ms Buckton’s employment history is unblemished. [2] In 2019 Ms Buckton entered into an arrangement with the respondent whereby her rosters were for night shifts only. The purpose of this arrangement was to allow Ms Buckton to care for her husband who suffers from early onset dementia. Until her departure on leave in December 2023, Ms Buckton worked night shift exclusively for almost 5 years. [3] On 9 October 2023 Ms Buckton met with Mr Matthew Paap, Clinical Nurse Consultant and Ms Kara Davies, Nurse Educator. An email dated 11 October 2023 is annexed to the respondent’s submissions (filed 14 February 2025) and appears to be a summary of the matters discussed at that meeting.1 1 It is referred to as ‘Attachment 1’ but is labelled ‘Appendix 6’. -- 2 of 11 -- 3 [4] The vast majority of the matters documented in that email appear to be updates and general information. There is one section of the two page email that appears to record a discussion about Ms Buckton properly recording her mandatory training. It does not record any discussion regarding a deficit in mandatory, though there is clearly some clarification about recording training activities.2 [5] Relevantly, the closing portion of the email purports to record an agreement that Ms Buckton would work one day shift per month. It was noted that this would provide an opportunity for Ms Buckton to complete mandatory training. [6] In another email dated 16 October 2023 attached to the respondent’s submissions,3 Ms Buckton states that she did not agree to perform day shift. She states that at the meeting on 9 October 2023 she said ‘maybe’ once a month in response to a request to work day shifts. She further stated that she now had second thoughts, she felt uncomfortable about changing, she had ‘enough stress at home’ to deal with, and she felt bullied. Thereafter, Ms Buckton continued to work nightshifts as per her usual practice. [7] Following Ms Buckton’s rejection of the proposal to work some day shifts, the respondent appears to have corralled a series of ‘serious concerns’ about Ms Buckton’s clinical practice. In addition to the alleged concern about the extent to which Ms Buckton had completed her mandatory training, the respondent composed a list (not communicated to Ms Buckton) of ‘serious concerns’ regarding four separate incidents. The dates spanned from December 2022 through until November 2023. It is noted that one of these four ‘concerns’ involved an alleged event that post-dates the meeting on 9 October 2023. Another pre-dates the meeting by 10 months. [8] On or about 18 December 2023 Ms Buckton received correspondence from Ms Tineale Vea Vea advising her that Ms Vea Vea had ‘received information’ that allegedly raised ‘serious concerns’ about Ms Buckton’s professional conduct which related to inadequate medical treatment of patients and non-compliance with mandatory training requirements. [9] The correspondence concludes with a decision to place Ms Buckton on alternative duties. [10] While the letter in question has not been provided by either party, the operative portion is extracted in the schedule to Ms Buckton’s Appeal Notice4 and, from the language used, it plainly implies that Ms Vea Vea was purporting to exercise powers pursuant to s 101 of the Public Sector Act 2022 (Qld) (‘the Act’). [11] In response to this correspondence Ms Buckton submitted a medical certificate and, since 21 December 2023 Ms Buckton has been absent from work utilising various forms of leave to allow her to continue to care for her husband. 2 There is a subsequent attached email from Ms Davies dated 16 October 2023 referring to discussion about ‘clinical incidents’ though these were plainly not considered significant enough to include in the overall summary email on 11 October 2023. 3 Referred to as ‘Attachment 3’ but labelled ‘Appendix 8’. 4 At paragraph 11. -- 3 of 11 -- 4 [12] As an aside to the relevant chronology to this appeal, in June 2024, the respondent commenced a process whereby it asked Ms Buckton to formally respond to the four nominated concerns. It appears to be a process that is formal, yet something less stringent than a show cause process. It is a curious approach given the matters alleged to be the serious concerns, if substantiated, could have had a significant impact on patient care. [13] Following the request for Ms Buckton to respond in June 2024, a shambolic series of miscommunications has ensued. Ms Buckton contends neither she nor her union received the correspondence. The respondent contends they have electronic receipts and assert they twice attempted unsuccessfully to reach Ms Buckton by telephone. The respondent commenced a disciplinary process in response to Ms Buckton’s failure to respond. Ms Buckton’s lawyers wrote to the respondent (twice) on 9 September 2024. In one of those letters the lawyers asserted Ms Buckton did not receive the June correspondence. The respondents apparently then became confused by the two letters from the lawyers and failed to respond to one of them. All of this has led to the respondent initiating and then suspending a disciplinary process against Ms Buckton that is now in abeyance pending the resolution of this appeal. [14] On 30 November 2024 Ms Buckton received correspondence from Ms Shareen McMillan, Executive Director Workforce Division. The correspondence communicated a decision made in consequence of a review of the original decision in December 2023 to suspend Ms Buckton and place her on alternative duties. The correspondence confirmed the continuation of Ms Buckton’s suspension and alternative duties (‘the decision’). It is this decision that Ms Buckton now appeals. Nature of appeal [15] Under Chapter 11 of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) the role of the Commission is to review the decision appealed against.5 The IR Act does not define the term ‘review’. The term 'review' will take its meaning from the context in which it appears.6 [16] An appeal under Chapter 11 of the IR Act is not a rehearing of the matter,7 but rather, it is a review of the decision and the decision-making process.8 The role of the Commission in such an appeal is to decide whether the decision appealed against was fair and reasonable.9 [17] The issue for determination in this appeal is whether the decision to continue Ms Buckton’s suspension with alternative duties is fair and reasonable. 5 Industrial Relations Act 2016 (Qld) s 562B. 6 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10. 7 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018), 5. 8 Ibid. 9 Industrial Relations Act 2016 (Qld) s 562B(3). -- 4 of 11 -- 5 What decisions can the Commission make? [18] In deciding this appeal, s 562C of the IR Act provides that the Commission may: a. Confirm the decision appealed against; or b. Set the decision aside and substitute another decision; or c. Set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Relevant sections of the Act [19] In this matter, the only portions of the Act relevant to my consideration are those contained at s 101. That section relevantly provides: (1) A public sector employee’s chief executive may, by notice, suspend the employee from duty if the chief executive reasonably believes— (a) the employee is liable to discipline under a disciplinary law; or (b) the proper and efficient management of the entity might be prejudiced if the employee is not suspended. (2) The notice must state— (a) when the suspension starts and ends; and (b) whether the employee is entitled to remuneration for the period of the suspension; and (c) the effect that alternative employment may, under subsection (5), have on any entitlement to remuneration for the period of the suspension. (3) However, before suspending the employee, the chief executive must consider all reasonable alternatives available to the employee. Examples of reasonable alternatives which may be available to the employee— • alternative duties • a change in the location where the employee performs duties • another alternative working arrangement (4) The employee is entitled to normal remuneration for the period of the suspension, unless— (a) the employee is suspended under subsection (1) (a); and (b) the employee’s chief executive considers it is not appropriate for the employee to be entitled to normal remuneration for the period of the suspension, having regard to the nature of the discipline to which the chief executive believes the employee is liable. Submissions [20] The parties provided written submissions in this appeal. I do not intend to restate them in these reasons. The salient portions are referred to in my consideration that follows. Additionally, it would seem that there are very few material facts in dispute in this appeal. [21] It ought to be noted for completeness that the respondent’s submissions contained a jurisdictional objection and asked that I exercise my discretion pursuant to s 562A of the -- 5 of 11 -- 6 IR Act to not hear the appeal. In essence the respondent contended that Ms Buckton was required by a relevant Directive to first lodge a grievance about the decision before she could commence this appeal. Having complied with the Directive in respect of the December 2023 decision, and having had her grievance dismissed on a technicality, Ms Buckton did not do so on this occasion given the apparent futility of such an exercise. [22] I addressed this objection with the respondent at the outset of the hearing of this matter and indicated that I wholly understood Ms Buckton’s reasoning for not lodging a grievance. I further note that s 562A of the IR Act confers a discretion on the Commission to not hear an appeal. It does not otherwise reduce the jurisdiction of the Commission to hear an appeal even where there is e.g. a failure by one or both parties to comply with a Directive. [23] After some discussion about the objection with the respondent I received (what I considered to be) a concession from the respondent to withdraw the jurisdictional objection. In the event that I am incorrect in that understanding I conclude that the jurisdictional objection ought to be dismissed. My reasons for that are broadly stated above and otherwise, are contained on the transcript of these proceedings. I do not intend to address that matter further. Consideration [24] The central controversy between the parties is whether the decision to continue Ms Buckton’s suspension with a direction for alternative duties is fair and reasonable. For the reasons that follow I consider that it is not. [25] In order to understand my conclusion in this regard it in necessary to understand how s 101 of the Act operates. Importantly, it must be understood that s 101(3) of the Act is not a stand-alone provision. That is to say, it is not open for a chief executive to elect between suspension or alternative duties in the first instance. [26] The powers granted to the chief executive under s 101(3) of the Act are only conferred after the chief executive has determined that the proper circumstances exist to exercise the power to suspend that is conferred by s 101(1) of the Act. [27] It seems plain from the extract of the December 2023 decision contained in Ms Buckton’s Appeal Notice, and the language used in the decision now under review, that the chief executive was (and is) satisfied that suspension is warranted pursuant to s 101(1)(b) of the Act. However, in accordance with the obligations prescribed by s 101(3) of the Act, the chief executive has considered alternatives to suspension and, in this instance, found alternative duties to be appropriate. It is here where I consider the respondent has misapplied s 101(3) of the Act in two distinct ways. Not a reasonable alternative -- 6 of 11 -- 7 [28] The language of s 101(3) of the Act requires the chief executive to consider ‘all reasonable alternatives available to the employee’. It does not invite a consideration of reasonable alternatives in a general sense. It is a consideration that requires specific contemplation of what is reasonably available to the employee. It therefore compels a consideration of the personal circumstances of the employee who is the subject of the direction. [29] It is an agreed fact of this matter that, at the relevant time, Ms Buckton has been the primary carer for her ailing husband for at least six years. It is well known and undisputed by the respondent that Ms Buckton’s obligations as a carer are entirely inconsistent with her working day shifts. [30] While this is a dilemma that does not automatically give rise to a right for Ms Buckton (or any employee) to demand night shift only, the unique facts of this case demonstrate that an agreement for exclusive night shifts was reached long ago. In those circumstances, subject to proper notice and consultation of any proposed change,10 Ms Buckton was entitled to a reasonable expectation that her arrangements to work only night shifts would continue indefinitely. [31] In those circumstances I consider the decision to compel Ms Buckton to perform alternative duties that include day shifts is unfair and unreasonable, Improper use of s 101 as performance management tool [32] In this particular case the manner in which the respondent has dealt with Ms Buckton is not only unfair and unreasonable, but it also has the appearance of being quite cruel. To be fair to the respondents, I do not consider that cruelty was intended. In fact, I consider that the respondent was attempting to be kind to Ms Buckton.11 In doing so, the respondent has attempted to take a somewhat passive approach to an objectively serious issue. Unfortunately for the respondent their efforts in this regard have, in my view, caused them to misapply of s 101 of the Act. [33] Having regard to the respondent’s written submission and the numerous documents attached, it seems that during the latter months of 2023 there were developing concerns about Ms Buckton’s clinical practices. Three of the four concerns subsequently identified had already emerged by October 2023. At least two were discussed at the meeting on 9 October 2023, though it is not clear to what extent they were emphasised. [34] The attachments accompanying the respondent’s submissions contain records of emails that appear to demonstrate that, at least amongst the relevant supervisors, there was a view that the alleged serious concerns were linked to the deficit in mandatory training. 10 In the manner prescribed e.g. by Clause 11 of the Nurses and Midwives (Queensland Health) Award – State 2015. 11 Emails exchanged between Ms Buckton’s supervisors that are attached to the respondent’s submissions reveal a desire to proceed sensitively and to display an abundance of respect for her extensive experience. Regrettably Ms Buckton has, perhaps understandably, felt threatened by the process. -- 7 of 11 -- 8 Further to this, it seems there was a view that the deficit in training was due to the lack of supervision Ms Buckton had on night shift. It seems that the initial plan to address the alleged concerns was to get Ms Buckton to agree to perform at least some day shifts to allow her to get her training up to the required level. [35] All of this was borne out of the best of intentions in that, the respondent was seeking to overcome the reported clinical practice concerns by ensuring that Ms Buckton undertook her training. It seems that the respondent thought the simplest way to do this was to get Ms Buckton to perform some day shifts where she could be supervised to get her mandatory training up to date. At first there was thought to be an agreement from Ms Buckton but when this dissolved the respondents, still having to deal with the concerns, resorted to exercising the powers conferred by s 101 of the Act. It is here that the respondent’s approach gets awkward. [36] Firstly, in taking steps to suspend Ms Buckton and direct her to perform day shifts, the respondent is effectively using the suspension power to achieve the outcome they could not achieve by agreement with Ms Buckton. It seems that the respondent’s focus has always been to address the concerns with performance management (as it should be) but it is not clear whether this would have escalated in the manner it has had Ms Buckton agreed to perform some day shifts. The escalation appears to have been triggered by Ms Buckton withdrawing from any possible agreement to work day shifts. [37] Section 101 of the Act is not intended for the purposes of performance management, even where it occurs incidentally. Yet the respondent’s intent to achieve this is revealed in the decision where the decision maker states: I consider that alternative duties will appropriately mitigate any risk to you, other staff, and patients by ensuring that you will not be performing any clinical duties until such time you have completed your outstanding mandatory training and your Performance and Development meeting has occurred. [38] The use of the suspension powers conferred by s 101 is confined to disciplinary matters. Whilst employee under performance can rise to the level of a disciplinary matter in limited circumstances, suspension is incongruous with circumstances amenable to local level management.12 Ms Buckton’s alleged unsatisfactory performance would need to meet the terms prescribed by s 91(1)(a) of the Act to make it grounds for discipline and, in circumstances where she has never been the subject of any performance management, there is a significant question as to whether she would reach this standard at this stage. [39] The difficulty for the respondent is the inherent contradiction in the approach they have taken. In one sense they are seeking to impose a form of low-key performance management to (hopefully) correct conduct giving rise to their concerns. But on the other hand, they draw upon the alleged seriousness of their concerns about clinical practices to evoke the powers of suspension. All of this is problematic because, in putting the 12 As recommended by the Nursing Director (see ‘Attachment 2/Appendix 8’ to the respondent’s submissions). See also s 91(1)(a) and compare with 91(4) of the Act. -- 8 of 11 -- 9 remedial action in place, they proceed on a premise that the alleged serious concerns and the alleged training deficit are already substantiated allegations. From my reading of the submissions filed by Ms Buckton, the concerns are yet to be properly considered, and she has much to say about them in her defence. [40] The implementation of de facto performance management via s 101(3) of the Act is not fair or reasonable especially where performance concerns have not been formally raised or responded to by an employee. To whatever extent the serious concerns were allegedly discussed with Ms Buckton on 9 October 2023 as performance issues, they do not feature in any prominent way in the summary of that meeting that is in evidence before me.13 [41] In all of these additional circumstances I consider that the manner and purpose for which the respondent exercised its powers conferred by s 101 of the Act went beyond the intended use of those powers. Even where it can be said that the alleged concerns warrant suspension, the ancillary motive of the respondent renders the decision to direct alternative duties be performed unfair and unreasonable. For those reasons it follows that I consider, in addition or alternatively to my earlier conclusion of unfairness, that the decision is unfair and unreasonable. Conclusion [42] The respondent was legitimately entitled to stand Ms Buckton down in light of the alleged serious concerns that emerged in late 2023. But in my view alternative duties inconsistent with Ms Buckton’s well established caring responsibilities were not reasonable alternatives available to her within the meaning of s 101(3) of the Act. Regrettably Ms Buckton did not seek a review of the decision made in December 2023 and it cannot be displaced by this appeal. [43] Additionally, the use of alternative duties directed pursuant to s 101(3) of the Act as a form of performance management is an improper use of that provision, especially where performance issues have not yet been formally raised with an employee and where the employee has not had an opportunity to respond. [44] It is contended by the respondents that the desired supervision of Ms Buckton could be achieved on night shifts, but that would require the engagement of dedicated supervision which would create unjustifiable hardship to the respondent. While I accept this entirely, such hardship does not make the imposition of day shifts on Ms Buckton any less unreasonable. [45] Faced with the dilemma of Ms Buckton’s refusal to agree to day shifts, the respondent had any number of options available to address their concerns. Despite her reasonable expectations about indefinite night shifts, any problems with her completing training that were substantiated could easily give rise to an operational reason sufficient to revoke the long-standing arrangement. A period of notice and consultation would have been all that was required to implement a change in the roster. 13 Attachment 1/Appendix 6 to the respondent’s submissions filed 14 February 2025. -- 9 of 11 -- 10 [46] Alternatively, if there was a desire to address the matter as a performance issue, there are no doubt multiple formal performance improvement policies that the respondent could have utilised which equally might have facilitated some alteration to the roster. [47] Further, in terms of the serious concerns the respondent says it has, they are duty bound to manage the risk to patients. Indeed, having regard to the four matters that comprise the alleged serious concerns I am at a loss to understand why the respondent has opted to take such a passive approach. The briefing note signed off by the Nursing Director contains a rather torturous reasoning which can only be explained by a desire to ‘go easy’ on Ms Buckton notwithstanding the objective seriousness of the concerns (if substantiated).14 [48] While I can well understand and agree with this approach given Ms Buckton’s long and distinguished service, there will inevitably be a tipping point in such matters where the disciplinary path cannot be avoided. Indeed, in such matters it is fairer to take that path than attempt some clunky, hybrid form of performance management. Such is the case here. [49] If the serious concerns about Ms Buckton’s clinical practice are genuinely held by the respondent, then disciplinary action must be a foreseeable consequence. In those circumstances the risk is best managed by suspension while those matters are addressed in a procedural fair process. In circumstances where the respondent relies on s 101(1)(b) of the Act, suspension must be with normal remuneration.15 [50] While the powers conferred on me by the IR Act in relation to such appeals allow me to substitute my own decision, I do not consider it prudent to order that Ms Buckton be suspended on normal remuneration as and from the date of the decision. That is but one option open to a decision maker undertaking a further consideration of the decision under review, and I am not appraised of broader operational considerations relevant to such an outcome. However, I do consider that such an outcome would be the most appropriate in the current circumstances. [51] I am particularly concerned that Ms Buckton has been forced to use accrued leave for 12 months and has recently exhausted her leave options. For all of the reasons stated above I consider the decision made in December 2023 was equally unfair and unreasonable but given that Ms Buckton did not appeal that decision, it cannot be disturbed. Had it been appealed Ms Buckton may well have been suspended on normal remuneration throughout 2024. [52] Consequently, the respondent has now had the advantage of an historically unreasonable decision and avoided liability to remunerate Ms Buckton while she was absent and using her accrued leave. Given Ms Buckton’s length of service, stage of life, and unfortunate 14 Attachment 2/Appendix 8 – see particularly page 6 of the Briefing Note. 15 See s 101(4) of the Act. -- 10 of 11 -- 11 personal circumstances, that accrued leave must have been a valuable commodity, intended for her future needs, that she has now lost. [53] I would expect that the respondent will conduct itself in its future dealing with this matter in a way that does not further exacerbate the disadvantage that has been suffered by Ms Buckton. As an aside, I note Ms Buckton has alluded to discussions with the respondent (via her lawyers) that have been occurring ancillary to these matters. It is not proper for me to address those matters in these reasons other than to say that I would encourage continuation of those discussions as a means to arriving at a dignified and mutually satisfactory outcome to this entire controversy. [54] In the circumstances where I have found the decision to be unfair an unreasonable, I intend to set the decision aside and return the matter to the decision maker with a copy of this decision for further consideration. In light of the fact that Ms Buckton is now on leave without pay, I will impose a 7-day limit on the making of a new decision from the time that these reasons are released to the parties in writing. Order 1. The decision under review is set aside; 2. The matter is returned to the decision maker for further consideration; and 3. A fresh decision must be made within 7 days of the Respondent receiving these reasons in writing. -- 11 of 11 --