Brabrook v State of Queensland (Queensland Health) [2023] QIRC 236

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Brabrook v State of Queensland (Queensland Health) [2023] QIRC 236 PARTIES: Brabrook, Bronwyn Joy (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2023/89 PROCEEDING: Public Sector Appeal DELIVERED ON: MEMBER: HEARD AT: 18 August 2023 Power IC On the papers ORDER: CATCHWORDS: Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY- Public Sector Appeal – appeal against a directive decision pursuant to s 132 of the Public Sector Act 2022 (Qld) – where the Appellant seeks an outcome of a disciplinary decision – where Respondent raised a jurisdictional objection LEGISLATION: CASES: Acts Interpretation Act 1954 (Qld) Industrial Relations Act 2016 (Qld), s 562 Public Sector Act 2022 (Qld), ch 3 pt 8 div 3, ss 98, 131, 132 Public Service Act 2008 (Qld), ch 6 pt 2 Elliott v State of Queensland (Queensland Health) [2022] QIRC 088 Higgins v State of Queensland (Queensland) [2022] QIRC 030 -- 1 of 11 -- 2 Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317 Reasons for Decision Introduction [1] Ms Bronwyn Joy Bradbrook ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Social Worker Clinical Leader, Toowoomba Hospital within the Darling Downs Health and Health Service ('DDHHS'). [2] By letter dated 1 February 2023, Ms Kylie Pippos ('Ms Pippos'), Executive Director Workforce of DDHHS invited the Appellant to respond to an allegation in relation to workplace behaviour and conduct towards a co-worker within 14 days. [3] On 15 February 2023, the Appellant lodged an employee grievance under HR Policy E12 – Individual Employee Grievances ('HR Policy E12') against Ms Pippos' decision to commence a disciplinary process against the Appellant. [4] On 9 March 2023, the Respondent advised the Appellant that there were no grounds to lodge a grievance pursuant to s 2.2 of the HR Policy E12 which provides that a decision made under Chapter 6, Part 2 of the Public Service Act 2008 (Qld)1 cannot be the subject of an individual employee grievance. [5] On 28 March 2023, the Appellant requested an internal review of the Respondent's response to the employee grievance. [6] On 11 April 2023, Dr Knowles advised the Appellant that she would conduct an internal review in accordance with Directive 11/20 Individual employee grievances ('Directive 11/20') and HR Policy E12 to enable the Appellant to seek a review from the Public Sector Commission under cl 12 of Directive 05/23 Discipline ('the Directive'). [7] On 5 May 2023 the Appellant filed an appeal against a decision of Dr Lynette Knowles dated 26 April 2023 confirming that the decision to commence a disciplinary process was fair and reasonable ('the decision') pursuant to s 131(1)(b) of the Public Sector Act 2022 ('PS Act'). Legislative Framework [8] Section 131 of the PS Act provides the following: 131 Decisions against which appeals may be made (1) An appeal may be made against the following decisions— 1 Equivalent provision is ch 3, pt 8, div 3 of the PS Act. -- 2 of 11 -- 3 (a) a conversion decision; (b) a directive decision; (c) a disciplinary decision; (d) a fair treatment decision; (e) a promotion decision; (f) a suspension without pay decision; (g) a transfer decision; (h) a work performance direction decision; (i) a decision about anything else against which another Act allows a person to appeal. (2) However, if an appeal may be made under this section against a decision, other than under subsection (1)(d), the appeal can not be made under subsection (1)(d). (3) This section is subject to section 132. [9] Section 132 of the PS Act provides that a person can not appeal against any of the following decisions: 132 Decisions against which appeals can not be made … (4) A person can not appeal against a fair treatment decision— (a) made under chapter 3, part 8, division 5; or (b) made under chapter 3, part 8, division 3, other than a finding under section 91 that a disciplinary ground exists for the person; or (c) relating to the recruitment or selection of a public sector employee; or (d) relating to a person’s work performance, other than a decision about the person’s work performance that is recorded in a formal way as part of a periodic performance review; or Example for paragraph (d)— a decision about performance recorded in a person’s performance development agreement as part of the person’s 6-monthly or annual performance review Grounds of appeal [10] In the appeal notice, the Appellant provided the following reasons for appeal: This is an appeal against an internal review decision that relies on certain documents in order to come to its conclusion. I am awaiting copies of these documents from my employer and submit this appeal in order to preserve my rights in relation to the decision. I do not envision being able to provide fulsome submissions until I am provided access to the documents that form the basis of the decision appealed. I seek orders that the status quo be maintained whist this matter is resolved. Submissions [11] On 12 May 2023 an Order was issued by the Commission directing parties to provide written submissions addressing the jurisdictional issue of whether the decision is appealable under the PS Act. Appellant's submissions [12] The Appellant submits that the appeal is a 'fair treatment appeal' of the Respondent's administrative decision to issue a show cause liability document, contending that the -- 3 of 11 -- 4 question for determination is whether the Respondent complied with cl 7.1 and/or 7.2 of the Discipline Directive (05/23). [13] The Appellant further submits the following: • The correct interpretation of s 132 of the PS Act is that the section provides for an 'exhaustive and specific list with a narrow intent'. • The purpose of s 132(4)(b) is to bar appeals in relation to the process for making a disciplinary finding or taking disciplinary action. • Disciplinary findings and disciplinary actions are captured by s132(4)(b), as the decisions were made within the meaning of the specific provisions outlined in the PS Act. • The decision to initiate a disciplinary process is not included in the provisions and is a 'pre-disciplinary matter'. • The wording of the other matters listed in s 132(4) of the PS Act provides insight into how s132(4)(b) should be interpreted. • The wording of ss 132(4)(c), 132(4)(d), and 132(4)(e) 'are very wide and do not refer to the sections which establish the directives for these matters'. • It was open to the drafters to draft s 132(4)(c) using the phrasing ‘made under chapter 3, part 3’ however they did not; it was open to the drafters to draft s 132(4)(d) using the phrasing 'made under chapter 3, part 8, division 1' however they did not; it was open to the drafters to draft s 132(4)(3) using the phrasing 'made under chapter 3, part 8, division 6' however they did not. • It was open to the drafters to prevent appeals being made regarding pre- disciplinary process by stating that all matters "relating to discipline" other than those specified were not appealable however they did not. • The extent of s132(4)(b) is to limit fair treatment appeals once a disciplinary process has begun to only those about disciplinary findings or disciplinary action. • Under this interpretation the matter before the Commission is appealable under s 131(d) of the Act as a fair treatment appeal that relates to a decision not made under chapter 3, part 8, division 5 of the Act. • In the alternative, under this interpretation, the matter before the Commission is appealable under either s 131(b) or s 131(d) or both and therefore not excluded by the operation of s 132 of the Act. -- 4 of 11 -- 5 [14] The Appellant refers to an alternative interpretation of s 132(4)(b) being that the Discipline Directive (05/23) and all decisions made with reference to that Directive are unable to be appealed unless they are disciplinary findings, further submitting that: • Such an interpretation would prevent an appeal of the matters before the Commission at this stage. • Under this alternative interpretation the term 'under' in the Act takes the broadest meaning of 'in accordance with' as per the Acts Interpretation Act 1954. • The Directive outlines the procedure for deciding to commence disciplinary proceedings in accordance with cl 7.1 and 7.2 of the Directive. • Chapter 3, part 8 division 5 of the Act includes s 98 and s 100 of the Act which outline that the Public Service Commissioner should make a directive about disciplinary action and that a Chief Executive should comply with that directive. • The Discipline Directive 05/23 outlines the procedure for deciding whether or not to commence disciplinary proceedings at clauses 7.1 and 7.2. • The Directive at clause 9 then provides a heading of 'Disciplinary process'. • Under this interpretation both clauses 7 and 9 and decisions about same would need to be considered part of the disciplinary process. • This interpretation would rely on the argument that as the Directive has been produced in accordance with chapter 3, part 8, division 5 that all matters captured by the Directive or reference by the Directive are not appealable unless specifically mentioned in s 131. • This interpretation has some difficulties when looking at the construction of the Directive which at clause 12 outlines that employees dissatisfied with a procedural aspect of the handling of concerns about performance or conduct should utilise the grievance process. • Under this interpretation employees would be accessing a grievance under the Directive that would otherwise be excluded from a grievance process by clause 6.1(b) of the individual Employee Grievances Direction 11/20 ('the Grievance Directive'). • Clause 6.1(b) of the Grievance Directive outlines that individual grievances cannot be made in relation to decisions made under the equivalent to s 132(4)(b) in the superseded legislation. -- 5 of 11 -- 6 • The interpretation would require the Appellant to participate in the whole of the disciplinary process leading up to either a disciplinary finding or a disciplinary action prior to raising concerns with the decision to implement the process. • There is a significant prejudice with the appeal. [15] The Appellant maintains that the first interpretation of the legislative provisions is the correct interpretation and that the decision appealed against relies on conduct concerns that were recorded against the Appellant and were not provided to her. Thus, it is in the interest of justice and efficient management of matters that the appeal be heard. Respondent's Submissions [16] The Respondent submits that the appeal should be dismissed for lack of jurisdiction as the decision was made under ch 3, pt 8, div 3 of the PS Act and is therefore unappealable pursuant to s 132(4)(b). [17] The Respondent submits an appeal can be made against a fair treatment decision pursuant to s 131(1)(d) of the PS Act. However, pursuant to s 132(4)(b), a person cannot appeal against a fair treatment decision made under chapter 3, part 8, division 3, other than a finding under section 91 that a disciplinary ground exists for the person. [18] The Respondent submits that the Appellant's assertion that initiating a disciplinary process constitutes a 'pre-disciplinary matter' should be rejected for the following reasons: • Directive 05/23 applies to all public sector employees 'in relation to disciplinary processes under ch 3 of the Act'. Clause 7.2 of the Directive provides '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'. Clause 7.2 also outlines a list of factors to be considered. • Directive 05/23 clearly envisages the 'disciplinary process' as encompassing the decision to commence a disciplinary process – it is not a 'pre-disciplinary matter'. The decision to commence is an assessment that must be made in accordance with cl 7.2 of Directive 05/23 – a directive authorised under ch 3, pt 8, div 3 of the PS Act. • The effect of 132(4)(b) of the PS Act is that an appeal cannot be made against a decision to ask an employee to show cause why a disciplinary finding should not be made against them. (Elliott v State of Queensland (Queensland Health) [2022] QIRC 88, 9 [33]-[36]; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030, 13 [47]-[49]) The effect of s 132(4(b) is that an appeal cannot be made against a decision to commence a disciplinary process. This point is well settled before the Commission, for example Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317, 16 • the Appellant's interpretation of s 132(4)(b) as encompassing all decisions made with reference to the Directive is at odds with Clause 12 of the Directive. Clause 12 of the Directive permits employees to ask the Public Sector Commission to conduct -- 6 of 11 -- 7 a review of a procedural aspect of the public sector's entity handling of a work performance matter. Clause 12 lists a number of pre-requisites including at b. "the subject employee has used internal review procedures under the directive on individual employee grievances.'' • Directive 11/20 precludes individual employee grievances about decisions under ch 3, pt 8, div 3 of the PS Act. If a grievance could be lodged regarding a decision to commence a disciplinary process, clause 12 of the Directive indicates the next step for a dissatisfied employee is to request the Public Sector Commission conduct a review, not that they lodge a public sector appeal. Clause 13 of the Directive does not include any ability or right to appeal a procedural aspect of the handling of a work performance matter. [19] The Respondent refers to the Appeal Notice in which the Appellant indicated that she is appealing 'a directive decision'. The Respondent submits that cl 6.1(b) of Directive 11/20 provides that 'a decision made under Chapter 6, Part 2 of the PS Act relating to discipline decisions' cannot be the subject of an individual employee grievance. It follows that an employee is not entitled to seek an internal review of a decision to reject their grievance in relation to discipline. [20] With respect to Directive 05/23, cl 13.1 provides that ''A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 11 of the Act." This clause limits the decision that can be appealed and does not include any entitlement to appeal the decision to commence a disciplinary process. Appellant's Reply [21] The Appellant submits in reply that the cases cited in the Respondent's submissions can be contrasted to the current matter. [22] The Appellant submits that the Commission's comments in the cases2 are an incorrect interpretation of the relevant industrial instruments.' Further outlining the following: In Hutchison, on which the subsequent decisions rely, the comments made regarding application of s 195 are not directly relevant to the decision of the Commission, and as such in Hutchison Commission does not reply on this interpretation. … In Elliott the Commission relied on the comments in the Hutchison decision. Further, the decision the Commission was determining was not only the decision to institute a disciplinary process but also the decision to suspend the Applicant on full pay. In contrast to the current matter it is specifically outlined in the relevant Suspension Directive 06/23 that there is no requirement for procedural fairness when determining to suspend an employee on full pay. … In the Elliott and Higgins matters, a large part of the decisions being appealed were the suspension of the employees and the vaccine mandate. [23] The Appellant submits that the appeal is not about a suspension which is specifically excluded but rather the decision to initiate the show cause process. 2 Hutchison v State of Queensland (Queensland Health) [2021] QIRC 317; Elliott v State of Queensland (Queensland Health) [2022] QIRC 088; Higgins v State of Queensland (Queensland Health) [2022] QIRC 030. -- 7 of 11 -- 8 [24] The Appellant submits that the appeal is an appeal of a pre-disciplinary decision which is not prevented by s 132(4)(b) of the PS Act. [25] The Appellant accepts the Respondent's submissions that the Directive provides for a process that determines whether or not a disciplinary process should commence at cl 7.2. [26] Subsequently, the Appellant submits that cl 7.2 outlines that there is both a pre- disciplinary process and a disciplinary process separating both matters. [27] The Appellant submits that no submissions are made as to how the Discipline and Grievance Directives may be interpreted in conjunction with the Respondent's submissions for the Commission to 'ignore the wording of cl 12'. [28] The Appellant further submits that on their interpretation of the Directives there is 'no clash of instruments and no parts of any instruments are required to be read out. Consideration [29] The question to be determined in this matter is whether the appeal against the decision to ask the Appellant to show cause as to why a disciplinary finding should not be made is competent. [30] An appeal may be made against a fair treatment decision pursuant to s 131(1)(d) of the PS Act. Section 132(4)(b) however provides that a person cannot appeal against a fair treatment decision made under chapter 3, part 8, division 3, other than a finding under section 91 that a disciplinary ground exists for the person. The question is therefore whether a decision to issues a show cause notice is a decision excluded by the operation of s 132(4)(b). [31] The Appellant contends that the issuing of a show cause notice is a 'pre-disciplinary ‘process and is not a decision excluded by the operation of s 132(4)(b). [32] The Discipline Directive (05/23) is a directive authorised under ch 3, pt 8, div 3 of the PS Act. The purpose of the Discipline Directive (05/23) is outlined as providing information on 'undertaking disciplinary processes' in accordance with the PS Act and specifies that the Directive applies to all public sector employees in relation to disciplinary processes under chapter 3 of the Act.3 [33] Clause 7.2 of the Directive provides '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', with cl 7.2 outlining a list of factors to be considered in reaching this determination. [34] I note that cl 7.3 refers to s 86 of the PS Act which provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management. Notably s 86 does not state that a disciplinary process cannot 3 cl 3.1(a). -- 8 of 11 -- 9 commence until the requirements of the relevant directive have been complied with, only that disciplinary action cannot be taken. [35] The Appellant submits that the existence of a separate 'pre-disciplinary' process can be inferred from the use of the word 'commence' in cl 7.2 of the Directive. In my view the act of assessing the factors outlined in cl 7.2 is part of the discipline process, with the term 'commence' simply outlining the considerations required at the beginning of the process. Directive 05/23 encompasses the entirety of the discipline process – from assessment until finalisation. To determine that cl 7.2 can be arbitrarily considered a 'pre- disciplinary matter' would require the insertion of words that do not appear in the Directive or the Act. [36] The appeal rights are clearly outlined in cl 13.1 of the Discipline Directive (05/23) as including 'disciplinary findings' or 'a disciplinary decision'. The clause does not refer to decisions to issue a show cause notice. Clause 13.1 provides: A subject employee has a right of appeal in relation to disciplinary findings or a disciplinary decision (with the exception of a termination decision) as provided for under section 131 of the Act. [37] Clause 12 of the Directive provides that a subject employee may ask the Public Sector Commission to conduct a review of a procedural aspect of the public sector entity's handling of a work performance matter subject to certain conditions. The Appellant notes that one of these conditions4 is that the employee has used the procedures under the directive on individual employee grievances.5 The directive on employee grievances however provides that matters that cannot be the subject of an individual employee grievance include a decision made under ch 3, pt 8, div 36. The Appellant suggests that this is a 'clash of instruments' however it appears entirely consistent. Neither the Discipline Directive nor the Individual Employee Grievance Directive (11/20) provide that appeals may be made against a decision to issue a show cause notice to an employee. [38] The Appellant identifies that the matters of Hutchison, Higgins and Elliott can be distinguished from this matter on the basis that they involved other issues including appeals against suspension. In all three matters, however, the Appellants attempted to appeal a decision to request an employee show cause as to why a disciplinary finding should not be made. [39] Commissioner Pidgeon made the following finding in Hutchison: In my view, the decision to commence a disciplinary process is not capable of being appealed, though it is clear that considerations of whether the proper process is followed in disciplinary matters can impact on whether a disciplinary finding or decision is fair and reasonable.7 4 cl 12.2(b). 5 Individual Employee Grievance Directive (11/20). 6 The equivalent provisions being Chapter 6, Part 2 in the superseded Act. 7 At [96]. -- 9 of 11 -- 10 [40] Deputy President Merrell found in Higgins that the effect of the equivalent to s 132(4)(b) of the PS Act8 is that an appeal cannot be made against such a decision, stating: [47] Pursuant to s 195(3A)(b) of the PS Act, a person cannot appeal against a fair treatment decision made under ch 6, pt 2, other than a finding under s 187 that a disciplinary ground exists for the person. [48] To the extent Ms Higgins appeals against the decision to ask her to show cause why a disciplinary finding should not be made against her, Ms Higgins' appeal is misconceived and is incompetent. The effect of s 195(3A)(b) of the PS Act is that an appeal cannot be made against such a decision. [41] The reasoning in Higgins was followed in Elliott. [42] Section 98 of the PS Act is outlined as follows: Procedure for disciplinary action In disciplining a public sector employee or former public sector employee under this Act, a chief executive of a public sector entity must comply with this Act and any relevant directive. [43] As outlined above, s 98 provides for the requirements for disciplinary action. As this section appears in ch 3, pt 8, div 3, decisions made pursuant to this section are not appealable in accordance with s 132(4)(b). [44] Section 132(4)(b) appears under the heading 'Decisions against which appeals can not be made'. Section 132 outlines an extensive list of decisions which can not be appealed. It is in this context that s 132(4) sits, outlining a list of fair treatment decisions that cannot be appealed. Section 132(4)(b) then specifics that an appeal cannot be made against a fair treatment decision made under ch 3, pt 8, div 3, 'other than a finding under s 91 that a disciplinary ground exists for the person'. This statutory context makes it clear that the purpose of the section is to outline decisions against which appeals cannot be made with the specific exception of a decision regarding a disciplinary finding or disciplinary action. There are no other exceptions mentioned regarding the disciplinary process. It appears to me that s 132(4)(b) was drafted to 'cover the field' with respect to disciplinary processes. To create a preliminary 'pre-disciplinary' process would require the creation of an artificial process that is not present in the Act. [45] If it were the case that all decisions with respect to the commencement of the disciplinary process were appealable (on the basis that they are 'pre-disciplinary' are therefore not excluded by the operation of s 132(4)(b)), one could conceive of appeals not only against the decision to issue a show cause notice, but also the against appointment of a particular delegate to make the decision on disciplinary finding, or the decision to rely on particular material, amongst a raft of other decisions. All of these matters may be ventilated in a response to a show cause notice and if necessary in an appeal against a disciplinary finding. [46] When the Appellant submits a response to the show cause notice, the Respondent will make a decision as to whether any disciplinary findings will be made. If the Appellant does not agree with the decision, she will have the opportunity to appeal the finding. As noted in Hutchison, considerations of whether the proper process has been followed in 8 Superseding 195(3A)(b) in the previous Act. -- 10 of 11 -- 11 disciplinary matters can impact on whether a disciplinary finding is considered to be fair and reasonable. [47] I am satisfied that the effect of 132(4)(b) of the PS Act is that an appeal cannot be made against a decision to ask an employee to show cause why a disciplinary finding should not be made. [48] The decision to commence a disciplinary process is made under ch 3, pt 8 div 3 of the PS Act and pursuant to s 132(4)(b) is not an appealable decision. Order [49] I make the following order: Pursuant to s 562A(3)(b)(ii) of the Industrial Relations Act 2016 (Qld), the appeal will not be heard. -- 11 of 11 --