Barbour v Queensland Health [2011] QCAT 427

CITATION: Barbour v Queensland Health [2011] QCAT 427 PARTIES: Debra Barbour v Queensland Health APPLICATION NUMBER: OCR075-11 MATTER TYPE: Occupational regulation matters HEARING DATE: On the papers HEARD AT: Brisbane DECISION OF: Judge Fleur Kingham, Deputy President DELIVERED ON: 9 September 2011 DELIVERED AT: Brisbane ORDERS MADE: 1. Ms Barbour's application against Queensland Health is dismissed. 2. Ms Barbour's application to make an amended application to join the Nursing and Midwifery Board of Australia and the Australian Health Practitioner Regulation Agency is refused. CATCHWORDS: HEALTH PRACTITIONERS – NURSES – EMPLOYMENT – REGISTRATION – where nurse employed by Queensland Health – where nurse placed on limited registration – where registration cancelled by Queensland Nursing Council – where employment subsequently terminated by Queensland Health – where nurse informed of right to apply to Tribunal for review of registration within 28 days – where nurse commenced proceedings more than 1 year later against Queensland Health to review decision to terminate employment – where nurse sought to amend application to review registration decision instead – where nurse sought to join AHPRA and NMBA to proceedings – whether Tribunal had jurisdiction to review the decision by Queensland Health to -- 1 of 5 -- 2 terminate employment – whether Tribunal should accept amended application to review registration decision – whether Tribunal should allow the application to join NMBA and AHPRA as parties Health Practitioner Regulation National Law, s 55 Industrial Relations Act 1999, s 78 Nursing Act 1992, s 123 Queensland Civil and Administrative Tribunal Act 2009, ss 6(2), 61, 67 APPEARANCES and REPRESENTATION (if any): This matter was heard and determined on the papers pursuant to s 32 of Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act). REASONS FOR DECISION [1] Ms Barbour worked as a nurse at the Royal Brisbane and Women’s Hospital until Queensland Health terminated her employment. There was a history of workplace conflict. Ms Barbour complained of bullying in the workplace. Her employer questioned her competence to perform her duties. After placing Ms Barbour on a performance improvement plan, Queensland Health formally assessed Ms Barbour’s nursing practise and involved the Council. [2] Initially, in October 2009, the Council placed Ms Barbour on limited registration, subject to supervision and further assessment. Later, on 8 March 2010, it cancelled Ms Barbour’s registration to practise. Shortly after, on 17 March 2010, Queensland Health terminated her employment because, without registration, it could not employ her as a nurse.1 [3] Council gave Ms Barbour written notice it had decided to cancel her registration. In that notice, it also informed her that she had the right to apply to this Tribunal, within 28 days, to review the decision to cancel her registration. It recommended she seek urgent independent legal advice about the matter. [4] Ms Barbour did commence proceedings in the Tribunal but not until 1 April 2011; more than a year after she was notified of her right of review. [5] She named Queensland Health as the respondent and appeared to seek a review of the decision to terminate her employment, not a review of the decision to cancel her registration. Queensland Health has applied to dismiss the application against it. It argues the Tribunal has no jurisdiction to review its decision to terminate Ms Barbour’s employment. 1 Nursing Act 1992, s 123. -- 2 of 5 -- 3 [6] Ms Barbour has now filed an amended application that seeks to review Council’s decision to cancel her registration.2 She has also sought to join the Nursing and Midwifery Board of Australia (the successor to the Council) and AHPRA, the agency that provides administrative and other support to the Health Practitioner Boards under the national system of regulation of the health professions.3 The Board, through AHPRA opposed Ms Barbour’s application to join them as parties and asked the Tribunal to dismiss the amended application, because it is out of time. Does the Tribunal have jurisdiction to review the decision by Queensland Health to terminate her employment? [7] If the Tribunal does not have jurisdiction to review Queensland Health’s decision to terminate Ms Barbour’s employment, the request by Queensland Health for an order to dismiss the application against it must be granted. [8] This Tribunal only has the jurisdiction conferred on it by the Queensland Civil and Administrative Tribunal Act 2009 or by an enabling Act.4 The decision by Queensland Health of 17 March 2010 is not one that QCAT can review. Queensland Health employed Ms Barbour under the Health Services Act 1991. That Act does not give QCAT a right to review decisions about employment. [9] The proper body to deal with such matters is the Queensland Industrial Relations Commission. It has power under the Industrial Relations Act 19995 to order reinstatement if Queensland Health has unfairly dismissed Ms Barbour. She has commenced proceedings for reinstatement before the Commission. Although there has been a conference of the parties, the proceedings have not concluded. [10] This Tribunal does not have jurisdiction to review the decision to terminate her employment. Ms Barbour has already commenced proceedings in the right forum, not yet concluded. Ms Barbour’s application, to the extent that it relates to the decision of Queensland Health on 17 March 2010 to terminate her employment, is dismissed. Should the Tribunal accept Ms Barbour’s amended application to review the Council’s decision to cancel her registration and her request to join the NMBA and AHPRA as parties? [11] It is more than a year since Council notified Ms Barbour in writing of its decision to cancel her registration and of her right to apply to QCAT to review it. The Tribunal has the discretion to extend the time for bringing an 2 In its submissions, the NMBA suggests that Ms Barbour seeks to review the decision to place her on limited registration in October 2009, as well as the decision to cancel her registration entirely. The amended application filed by Ms Barbour, however, relates only to the loss of registration. 3 Health Practitioner Regulation National Law, s 55. 4 An enabling Act is an Act other than the QCAT Act that confers original, review or appeal jurisdiction on the Tribunal; or subordinate legislation that confers review jurisdiction on the Tribunal; Queensland Civil and Administrative Tribunal Act 2009, s 6(2). 5 Industrial Relations Act 1999, s 78. -- 3 of 5 -- 4 application.6 Given Ms Barbour’s lengthy delay, she is seeking a significant indulgence that should not be granted unless it is in the interests of justice to do so. [12] Ms Barbour was given comprehensive and accurate information about her rights when given notice of Council’s decision. The Council could not have been more clear in the information it provided to her. The relevant section, headed Important notices to you stated: You have a right to have Council’s decision reviewed by the Queensland Civil and Administrative Tribunal. To have Council’s decision reviewed you must file an application in the appropriate form in the Queensland Civil and Administrative Tribunal registry within 28 days from the date upon which you are notified of Council’s decision. You also have the right to apply to the Queensland Civil and Administrative Tribunal to have the operation of Council’s decision stayed, pursuant to s.22 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld), pending any such review. The operation of Council’s decision remains in effect until and unless the Queensland Civil and Administrative Tribunal makes an order staying it. Council recommends you seek urgent independent legal advice should you wish to have Council’s decision reviewed or its operation stayed pending review. [13] The Tribunal directed Ms Barbour and Queensland Health to attend a compulsory conference7 about her application. At the invitation of the Tribunal, the NMBA also attended. After confidential discussion of the issues at the conference, the parties consented to the Tribunal making directions to deal with outstanding issues raised by Ms Barbour in her material. [14] Those directions included one requiring Ms Barbour to make submissions about why the Tribunal should accept an amended application and join the NMBA after the period to make the application had passed. Ms Barbour’s submissions do not explain why she did not take action before July 2011. [15] The period to apply expired almost a year before she brought the application in QCAT against Queensland Health. It was another 3 months before she sought to take action about the Council’s decision. [16] The Queensland Nurses Union advised and assisted Ms Barbour in her dispute. It made representations on her behalf to both Queensland Health and Council, including in relation to the decision to cancel her registration. Given that assistance and in the face of such a clear notice of her rights, unexplained delay counts against extending time for her to now apply to review Council’s decision. [17] To refuse her application will not disadvantage Ms Barbour unduly. She may still apply to be registered as a nurse, provided she can demonstrate her qualifications to competently practise. Her competence is the very issue the 6 Queensland Civil and Administrative Tribunal Act 2009, s 61. 7 Queensland Civil and Administrative Tribunal Act 2009, s 67. -- 4 of 5 -- 5 Tribunal would have had to consider if it granted her leave to proceed against the NMBA. [18] If Ms Barbour does apply to be registered and is refused or conditions are imposed that she considers inappropriate, she will have the right to apply to review that new decision by the NMBA in QCAT. [19] The Tribunal decisions are that Ms Barbour’s application against Queensland Health is dismissed and her application to make an amended application and join the NMBA (and AHPRA) is refused. These decisions dispose entirely of the proceedings now before the Tribunal and they are dismissed. -- 5 of 5 --