Corney v State of Queensland (Queensland Health) [2024] QIRC 226

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Corney v State of Queensland (Queensland Health) [2024] QIRC 226 PARTIES: Corney, Steven (Applicant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: B/2023/44 PROCEEDING: Application for an order to stop bullying DELIVERED ON: 12 September 2024 HEARING DATE: 9 November 2023 MEMBER: HEARD AT: O'Connor VP Townsville ORDER: The Applicant's application for an order to stop bullying is dismissed. CATCHWORDS: QUEENSLAND - INDUSTRIAL LAW - ALLEGATIONS OF BULLYING IN WORKPLACE - application for an order to stop bullying - where consideration of the elements for the Queensland Industrial Relations Commission (Commission) to be satisfied employee has been bullied in the workplace within the meaning of s 272 of the Industrial Relations Act 2016 - where consideration of the elements of s 275(1) of the Industrial Relations Act 2016 for Commission to have power to make an order to stop bullying - where applicant issued warning for unauthorised access of electronic medical records of two patients - where applicant issued letter providing opportunity to respond to alleged inappropriate conduct in the workplace -- 1 of 24 -- 2 on two occasions - whether reasonable management action was carried out in a reasonable manner - whether bullying occurred in the workplace - whether action of employees of the respondent, in respect of the applicant, meant the applicant was bullied in the workplace - whether there is any risk of applicant continuing to be bullied in the future LEGISLATION: Fair Work Act 2009 (Cth), s 789FD Hospital and Health Boards Act 2011, s 139, s 139A, s 142, s 145 Industrial Relations Act 2016, s 272, s 273, s 275 Work Health and Safety Act 2011, s 7 CASES: Appellent v Respondent [2015] FWCFB 1972 Campbell v State of Queensland [2019] ICQ 18 Greenall v State of Queensland [2021] ICQ 19 Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274 Ms SB [2014] FWC 2104; Re SB (2014) 244 IR 127 Welsh v Logan City Council [2021] QIRC 141 APPEARANCES: Mr S. Corney, the Applicant represented himself. Ms J. Marr, Counsel instructed by Crown Law for the Respondent. Reasons for Decision Introduction [1] Mr Steven Corney (the 'Applicant') is employed as an Enrolled Nurse, Advanced Skills by the Townville Hospital and Health Service ('THHS') at the Townsville Community Care Unit ('TCCU') in the Mental Health Service Group ('MHSG'). [2] The Applicant seeks orders to stop bullying pursuant to s 275 of the Industrial Relations Act 2019 ('the IR Act') in relation to two instances of alleged bullying as follows: -- 2 of 24 -- 3 (i) the issuing of a letter dated 29 October 2021 to the Applicant providing a warning as to his unauthorised access of electronic medical records of two patients of the Adult Acute Mental Health Inpatient Unit ('AAMHIU') between 24 and 26 July 2021; and (ii) the issuing of a letter dated 9 May 2023 to the Applicant providing him with an opportunity to respond to concerns raised by Ms Pamela Anderson, Clinical Nurse Consultant as to alleged inappropriate conduct by the Applicant in the workplace on two occasions. [3] The Respondent contends that the letters dated 29 October 2021 and 9 May 2023 constituted reasonable management action towards the Applicant and were carried out in a reasonable way. The letters do not create a risk to the Applicant's health and safety.1 [4] The Applicant's reliance on the decision of Professor Keyes, Chief Executive, THHS to rescind the warning of 29 October 2021 and the decision to refer Ms Anderson's concerns, including the Applicant's response of 19 July 2023 to a delegate other than Ms Mallett for determination, does not assist the Applicant in demonstrating the alleged bullying within the meaning of s 272 of the IR Act.2 [5] The Respondent submits that because no bullying has occurred nor is there any risk of it continuing in the future, that the application should be dismissed.3 [6] Having regard to the parties' submissions and to ss 272 and 275 of the IR Act, the questions for my determination are: • whether Ms Mallett's actions in causing the letters of 29 October 2021 and 9 May 2023 to be issued to the Applicant constituted repeated unreasonable behaviour towards the Applicant? • whether such behaviour created a risk to the health and safety of the Applicant? • whether that behaviour was other than reasonable management action carried out in a reasonable manner? • whether there is a risk the Applicant will continue to be bullied in the workplace? and • what order, pursuant to s 275 of the IR Act, should be made? [7] For the reasons that follow, the alleged behaviour of the Respondent's employees was not repeated, unreasonable behaviour. Therefore, I cannot be satisfied that the Applicant has been bullied in the workplace or will continue to be bullied in the workplace. 1 Respondent's submissions filed 20 October 2023, [5], [6]. 2 Ibid, [7]. 3 Ibid, [9], [84]. -- 3 of 24 -- 4 Representation Issue [8] This matter was heard by the Queensland Industrial Relations Commission ('the Commission') on 9 November 2023 in Townsville at which time the Commission reserved its decision. The Applicant represented himself and the Respondent was represented by Counsel instructed by Crown Law. On 5 July 2023 leave was granted to Crown Law with no objection raised. [9] On 23 November 2023 the Applicant emailed the Industrial Registry objecting to the appearance of Counsel at the hearing. There had been no objection prior to the hearing. The Applicant said he did not find out that Ms J. Marr of Counsel did not work for Crown Law until after the hearing. Accordingly, the matter was listed for Mention on 27 November 2023. [10] The Applicant submitted that he was disadvantaged in that Ms Marr is a professional person.4 Ms Marr responded to the effect that she had represented the Respondent at a Mention of this matter prior to the hearing and she had settled all documents prior to the hearing as Counsel for the Respondent.5 [11] Ms Marr went on to say: MS MARR: All of the documents that were filed after that point, on behalf of Crown, did note that they had been settled by me, as counsel for the State. And the other point that I would seek to draw to the Commission's attention is that the submission for the State would be that Mr - even if leave was required and should have been granted and - and I think it's correct that a leave was required and that was a matter for the consent of the parties under section 531, sub (e) - - - HIS HONOUR: Yes. MS MARR: - - - of the Industrial Relations Act. Even if that difficulty here, the reality is that Mr Corney hasn't been disadvantaged. And I say that because very - and the transcript will verify this, but a permissive approach was adopted on behalf of the State at the final hearing, in that, with one exception only, that I can recall, there was no objection made to any of the evidence that Mr Corney sought to tender in support of his case. So he was able to tender all of the - with one exception, all of the documents that he sought to rely on. Mr Corney wasn't cross-examined and the State didn't call any of its own witnesses in support of its case. So the submissions were made solely on the basis of Mr Corney's presented case, alone. HIS HONOUR: Yes. MS MARR: And Mr Corney wasn't in any way limited in the way that he sought to present that case by the approach taken by the State at the hearing. So the sum up of 4 TR1-3, LL44-46 (27 November 2023). 5 TR1-4, L46-TR1-5, L3 (27 November 2023). -- 4 of 24 -- 5 that, Vice President, is that this is not a situation where there's been any real or practical injustice for Mr Corney.6 [12] The Applicant stated "this is procedural fairness. She should not have been in that courtroom; she was. End of story".7 [13] In concluding the Mention, I advised the parties that "I'm content to give my decision, based upon the case that's been presented."8 The legislative framework [14] Section 272 of the IR Act defines when an employee is bullied in the workplace and provides: 272 When is an employee bullied in the workplace (1) An employee is bullied in the workplace if- (a) while the employee is at work, an individual or group of individuals repeatedly behaves unreasonably towards- (i) the employee; or (ii) a group of employees of which the employee is a member; and (b) that behaviour creates a risk to the health and safety of the employee. Note- For the meaning of employee for this chapter, see section 8(2). (2) To remove any doubt, it is declared that subsection (1) does not apply to reasonable management action carried out in a reasonable manner. All the elements of s 272 of the IR Act must be read together [15] All the requirements of s 272 of the IR Act must be read together. This means the Commission must consider whether an individual or group of individuals have repeatedly behaved unreasonably towards an applicant and whether that behaviour has created a risk to health and safety.9 [16] A positive finding on each of those elements, and if appropriate, a finding that the circumstances contemplated in s 272(2) of the IR Act do not apply to the behaviour, must be made out for the Commission to find that an applicant has been bullied at work.10 Repeated behaviour [17] In Ms SB11 Commissioner Hampton considered a relevantly similar provision s 789FD in the Fair Work Act 2009 (Cth) and said as follows in relation to 'repeated behaviour': 6 TR1-5, L24-TR1-6, L2 (27 November 2023). 7 TR1-6, LL43-44 (27 November 2023). 8 TR1-13, LL24-25 (27 November 2023). 9 Ms SB [2014] FWC 2104, [54] (Ms SB); Re SB (2014) 244 IR 127 (Commissioner Hampton). 10 Ibid [54]. 11 Ms SB [2014] FWC 2104; Re SB (2014) 244 IR 127. -- 5 of 24 -- 6 [41] Having regard to the approach urged by the authorities, the concept of individuals 'repeatedly behaving' unreasonably implies the existence of persistent unreasonable behaviour but might refer to a range of behaviours over time. There is no specific number of incidents required for the behaviour to represent 'repeatedly' behaving unreasonably (provided there is more than one occurrence), nor does it appear that the same specific behaviour has to be repeated. What is required is repeated unreasonable behaviour by the individual or individuals towards the applicant worker or a group of workers to which the applicant belongs.12 [18] Commissioner Hampton went on to say what constituted unreasonable behaviour: [43] Unreasonable behaviour' should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable. That is, the assessment of the behaviour is an objective test having regard to all the relevant circumstances applying at the time.13 [19] Chapter 7 of the IR Act provides a mechanism to stop bullying of an employee at work and must be considered as to whether the impugned behaviour is repeated unreasonable behaviour.14 Creates a risk of health and safety to the employee [20] There must be a causal link between the behaviour and the risk to health and safety. The behaviour does not have to be the only cause of the risk, provided that it was a substantial cause of the risk viewed in a common sense and practical way. A risk to health and safety means the possibility of danger to health and safety, which is not confined to actual danger to health and safety.15 [21] The risk must also be real and not simply conceptual.16 [22] It is not necessary for an applicant to demonstrate that he or she has suffered an actual detriment to health or safety, namely, actual illness or injury, in order to demonstrate the necessary risk. [23] However, the existence of an illness may be relied upon as a manifestation of the necessary risk, provided the requisite causal link to the unreasonable behaviour at work has been established.17 Reasonable management action carried out in a reasonable manner 12 Ms SB [2014] FWC 2104; Re SB (2014) 244 IR 127. 13 Ibid. 14 Greenall v State of Queensland [2021] ICQ 19, per Davis J, [34] citing Hatcher VP in Mac v Bank of Queensland & Ors [2015[ 247 IR 274. 15 Ms SB [2014] FWC 2104, [44]; Re SB (2014) 244 IR 127. 16 Ibid, [45]; See also Campbell v State of Queensland [2019] ICQ 18 per Martin J, [46]. 17 Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274, [94]. -- 6 of 24 -- 7 [24] Section 272(2) of the IR Act operates, as expressly stated, to remove any doubt by declaring that s 272(1) does not apply to reasonable management action carried out in a reasonable manner. [25] However, the definition of when an employee is bullied in the workplace includes that while the employee is at work, an individual or group of individuals, repeatedly behaves unreasonably towards the employee. Indeed, the purpose of ch 7 of the Act is to confer power on the Commission to make any (non-pecuniary) order it considers appropriate to prevent the employee from being bullied in the workplace. For these reasons, the phrase 'management action' should be construed to include management action about or concerning the everyday duties and incidental tasks of an employee. Reasonable management action [26] In Ms SB,18 Commissioner Hampton said the "test is whether the management action was reasonable", not whether it could have been undertaken in a manner that was "more reasonable" or "more acceptable". He summarised the principles as follows: [49] Determining whether management action is reasonable requires an objective assessment of the action in the context of the circumstances and knowledge of those involved at the time. Without limiting that assessment, the considerations might include: • the circumstances that led to and created the need for the management action to be taken; • the circumstances while the management action was being taken; and • the consequences that flowed from the management action. [50] The specific 'attributes and circumstances' of the situation including the emotional state and psychological health of the worker involved may also be relevant. [51] The test is whether the management action was reasonable, not whether it could have been undertaken in a manner that was 'more reasonable' or 'more acceptable'. In general terms this is likely to mean that: • management actions do not need to be perfect or ideal to be considered reasonable; • a course of action may still be 'reasonable action' even if particular steps are not; • to be considered reasonable, the action must also be lawful and not be 'irrational, absurd or ridiculous'; • any 'unreasonableness' must arise from the actual management action in question, rather than the applicant's perception of it; and • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances. [52] For the circumstances in s.789FD(2) of the FW Act to apply, the management action must also be carried out in a 'reasonable manner'. Consistent with the approach above, what is 'reasonable' is a question of fact and the test is an objective one. 18 Ms SB [2014] FWC 2104; Re SB (2014) 244 IR 127. -- 7 of 24 -- 8 [53] Whether the management action was taken in a reasonable manner may depend on the action, the facts and circumstances giving rise to the requirement for action, the way in which the action impacts upon the worker and the circumstances in which the action was implemented and any other relevant matters.19 [27] All of these principles must be considered in order to determine whether an employee has been bullied in the workplace. Section 275 of the IR Act [28] Section 275 of the IR Act sets out the Commission's power to make orders to stop bullying and provides: 275 Commission may make orders to stop bullying (1) This section applies if- (a) an employee has made an application under section 273; and (b) the commission is satisfied that- (i) the employee has been bullied in the workplace; and (ii) there is a risk that the employee will continue to be bullied in the workplace. (2) The commission may make any order it considers appropriate (other than an order requiring payment of a pecuniary amount) to prevent the employee from being bullied in the workplace. (3) In considering the terms of an order, the commission must take into account- (a) if the commission is aware of any final or interim outcomes arising out of an investigation into the matter that is being, or has been, undertaken by another entity-those outcomes; and (b) if the commission is aware of any procedure available to the employee to resolve grievances or disputes-that procedure; and (c) if the commission is aware of any final or interim outcomes arising out of any procedure available to the employee to resolve grievances or disputes-those outcomes; and (d) any other matter the commission considers relevant. [29] If the Commission is satisfied that an applicant/employee has been bullied in the workplace, before the Commission has discretion to make an order to stop bullying, the Commission must also be satisfied that there is a risk that the employee will continue to be bullied in the workplace. Applicant's written submissions [30] There is no dispute that the Applicant is an employee of the Respondent and the alleged bullying behaviour occurred while the Applicant was at work.20 [31] The Applicant submits that the following action by management was bullying: 19 Ms SB [2014] FWC 2104; Re SB (2014) 244 IR 127. 20 Respondent's submissions filed 20 October 2023, [30]. -- 8 of 24 -- 9 (i) On the 26th May 2023 I received a phone call from Mr Benjamin Rooskov, Human Resources Business Partner, Mental Health Service Group. This call was to advise me that a grievance had been submitted against me. Mr Rooskov would not give me any further details. On 28 May 2023 Mr Rooskov sent a letter from Ms Ann-Marie Mallett and witness statements about two incidents the first dating from the 13th June 2022, reported on the 15th June 2022 and the second on the 17th January 2023 reported on the 6th February 2023. The Grievance had been submitted by Ms Pamela Anderson naming me as the subject of the individual employee grievance. (ii) This was the first time of being informed that a grievance had been submitted against myself. Please note that from the reporting of the incidents till being informed is 347 days and 111 days respectively. (iii) I consider this management action by Ms Mallett as a bullying action.21 [32] In his submissions, the Applicant claims Ms Mallett's decision to present Ms Anderson's grievance outside the 28 days to resolve a grievance, and not follow the Public Service Commission ('PSC') Directive 11/20 - Individual employee grievances has caused a psychological injury. The Applicant made a claim for WorkCover which was rejected.22 [33] The Applicant contends the action by Ms Mallett was not reasonable as she had not followed the documented policies by the PSC and the Respondent.23 [34] Specifically, the Applicant refers to Queensland Health Human Resources Policy - Individual employee grievances E12(QH-POL-140) published August 2021 which defines the Definition of "Natural justice" as follows: 6. Is a right recognised and defined by law that involves two key elements - the hearing rule (everyone is entitled to a decision by a disinterested and unbiased adjudicator), and the bias rule (the parties shall be given adequate notice of the case against them, and a right to respond). In the context of an employee grievance, this requires that when material is obtained that may reasonably be considered to be detrimental to an employee's interests, that employee is to be provided with access to the material as soon as practicable and given an opportunity to respond to such material. Material provided is to include the factual information to be examined and is to be in sufficient enough detail to enable adequate preparation of a response. However, provision of material to a party to a grievance is to be in accordance with the relevant privacy obligations, including (but not limited to) the Information Privacy Act 2009, Public Interest Disclosure Act 2010 and Access to Employee Records HR Policy F3. Review Tribunals, such as the PSC and the QIRC, may overturn decisions if they are found to be procedurally flawed. Therefore, the role of decision-makers in ensuring all of the necessary steps in the process are followed is an extremely important one.24 21 Applicant's submissions filed 14 September 2023, [2]-[4]. 22 Public Service Commission Directive: 11/20 - Individual employee grievances, effective date 25/09/20, cl 9.1(d); Applicant's submissions filed 14 September 2023, [5]. 23 Applicant's submissions filed 14 September 2023, [7]. 24 Ibid, [9]. -- 9 of 24 -- 10 [35] As decision-maker, Ms Mallett has not followed the policies and not afforded the Applicant his rights to procedural fairness. The Applicant believes her actions are unreasonable in that they are procedurally flawed and that she be removed as decision-maker due to the previous biased decision about a breach of confidentiality.25 [36] On 19 July 2023 the Applicant emailed Professor Keyes advising his formal response to Ms Mallett's request for a response to concerns raised (referring to the response to concerns letter dated 9 May 2023). On 27 September 2023 Professor Keyes advised the Applicant he would refer the email dated 19 July 2023 to an independent delegate (not Ms Mallett) for his/her consideration as to what further action, if any, will be taken in response to concerns letter dated 9 May 2023.26 Applicant's oral submissions [37] The Applicant said that he wrote a complaint letter on 24 July 2021 in relation to patients' human rights being breached to Ms Rachelle Floriani, Mental Health Advisor and lodged a grievance as his concerns through his chain of command were not listened to.27 He went on to say: APPLICANT: As a result of that, I was told by Rachel Florean [sic] that they would adjust the LCTs, which they did. This continued happening over multiple weeks. I was then told, even though there's no policy, that I could only raise these concerns with my shift coordinator or clinical nurse consultant. The chief psychiatrist policy, however, says they're to be raised with the Mental Health Act administrator for the service. I didn't know of anyone that was an actual Mental Health Act administrator, but as I said, Rachel Florean is the Mental Health Act adviser for the service, and she's the one that's always told us, if you have a problem with things happening under the Act, you approach her. I did that, and in the process of doing that I got accused of looking at patients' documents. Now, confidentiality is not about the document itself, it's the information contained in the document. HIS HONOUR: But is it the case that you accessed the electronic medical records? APPLICANT: Yes.28 [38] In accepting that he accessed two medical records, the issue is whether the Applicant was authorised or not. The Applicant claims he was authorised because he is part of the care and treatment of that patient and "I access a confidential medication record, I view the record, I check the dose against that record, I go with that nurse to the patient and watch 25 Applicant's submissions filed 14 September 2023, [10]. 26 Applicant's submissions filed 14 September 2023, [10],[11]; Respondent's submissions filed 20 October 2023, [46]-[48]; Attachment 12 - Letter dated 19.07.23 from Applicant to Professor Keyes; Attachment 13 - Letter dated 27.09.23 from Professor Keyes to the Applicant, p 2. 27 TR1-6, LL32-35. 28 TR1-7, LL7-21. -- 10 of 24 -- 11 that nurse administer that drug. I have full knowledge of all their confidential information."29 [39] On 29 October 2021 the Applicant received the warning letter from Ms Mallett following the show cause process. The Applicant agreed that a warning is just a management action.30 [40] In referring to the extract from the Delegation Manual,31 the Applicant said: APPLICANT: [T]he flow chart that comes with it, and no part of that flow chart just says Ms Mallett, as a service group director, can take action against me. It must - as the policy says, it will - - - HIS HONOUR: Okay. APPLICANT: - - - follow the disciplinary process. HIS HONOUR: Yes. APPLICANT: The delegation manual only has three delegates. HIS HONOUR: Okay. APPLICANT: The chief executive, the director of HR - - - HIS HONOUR: Yes. APPLICANT: - - - and the chief operating officer. They're the only people that could have made a decision about my suspected breach of confidentiality. HIS HONOUR: Okay. So what happened subsequent to that? You say you lodged a grievance?32 [41] The Applicant said he then placed a grievance against Mr Baird and Ms Mallett.33 [42] After approaching Mr Eaton to rethink his answer, which he agreed to, Mr Eaton issued a second letter agreeing with Ms Mallett commencing a disciplinary process. In the Applicant's view Mr Eaton has made a disciplinary finding without issuing a show cause notice. Mr Eaton said he had conducted the second review as an internal review which the Applicant states has to go up to a separate person for an internal review and he was denied procedural fairness.34 29 TR1-7, L47-TR1-8, L10. 30 TR1-10, L42. 31 Exhibit 5. 32 TR1-10, LL8-27. 33 TR1-9, L42. 34 TR1-11, LL8-26. -- 11 of 24 -- 12 [43] The Applicant then lodged "a grievance against Ms Catherine Duffy, the head of health and safety, … that went up to Professor Keyes. I met with him on the 4th January 2023. He then issued a letter on the 6th, stating that I did not breach confidentiality, Ms Mallett's decision has been rescinded and that they did not act reasonably."35 [44] There were two complaints from Ms Anderson and in the Applicant's view Ms Anderson should have removed herself as the decision maker on the basis of natural justice as she had made a previous biased decision against him.36 [45] The first complaint was the incident in January and the other one was in May 2022. The Applicant said: APPLICANT That I was not advised of the grievance as soon as practicable, as per Queensland Health Policy. I was not advised that Ms Mallat [sic] would be the decision maker so I could object to her being a decision maker, based on her previous biased decision against me. Subsequent to receiving the grievance and the show cause letter from Ms Mallat, [sic] I have complained to the - - - HIS HONOUR: But hang on. You've got this letter, I assume, some time after the 9th of May of '23. APPLICANT: Around that date. HIS HONOUR Yes. Okay. And you saw that Ms Mallat [sic] was the signatory of that. APPLICANT: Yes. HIS HONOUR: And you were given an opportunity to respond to it. Did you raise it, in your response, an objection - - - APPLICANT: Yes. HIS HONOUR: - - - to Ms Mallat [sic]? APPLICANT: Mr Keyes has now removed Ms Mallat [sic] as - - - the decision maker.37 [46] The Applicant agreed that he asked for something to be done in the show cause and that was listened to. However, he went on to say that under the Public Service Directive the grievance has to be dealt within 28 days and that he received no communication prior to the letter of 9 May. The Applicant claims he was not "given natural justice, the process is procedurally flawed … and it should be upheld".38 35 TR1-11, LL35-41. 36 TR1-12, LL44-46. 37 TR1-16, L23-TR1-17, L1. 38 TR1-17, LL16-27. -- 12 of 24 -- 13 [47] In stating the Respondent has not followed the policy, the Applicant said he was not notified of the first grievance for 349 days and the second grievance it was 112 days.39 [48] The Applicant objected to the second incident claiming there was adverse action taken against him as it was a formal warning. In response to a question from the Commission as to "[w]here is the bullying there?", the Applicant replied: APPLICANT: The bullying is when Ms Mallat [sic] took a management action. That goes on my permanent record. Bullying was also by Steven Eaton commencing a disciplinary action, which could've ended in my termination of employment, because disciplinary action can end in termination of my employment, sir. They're very adverse effects.40 HIS HONOUR: But have you looked at 272 of the Act: what constitutes bullying in the workplace? APPLICANT: While the employee is at work, an individual or a group of individuals repeatedly behaves unreasonably towards - - - HIS HONOUR: Yes. HIS HONOUR: So where's the repeated behaviour you're relying on? APPLICANT: We've got the unfair decision by Ms Mallat [sic] and then her not abiding by procedures and not removing herself from the grievance of Ms Anderson, as per the requirements of the Public Service Directive and Queensland health directives; not affording me natural justice; not applying to 4.1 of the - - - HIS HONOUR: But - no, all she did was issue you with a show cause notice and then you made an objection and things followed from that. That's correct, isn't it? APPLICANT: Because at the time, it's beyond the timeframe for them to do anything. HIS HONOUR: Well, that's another issue, but - - - APPLICANT: Why is that another issue, Commissioner? I don't understand that. HIS HONOUR: Because you've got to say that the - that there's been a repeated unreasonable, and there's a huge gap between July of '21 and May of '23. APPLICANT: I have no way of proving this …41 [49] In his submissions the Applicant went on to say: HIS HONOUR: So you made an application under 273, and the Commission has to be satisfied that you've been bullied in the workplace [indistinct] and secondly, there is a risk that the employee will continue to be bullied in the workplace. APPLICANT: Yes. 39 TR1-17, LL35-37. 40 TR1-18, LL6-9; TR1-18, L25; TR1-18, LL31-37. 41 TR1-18, L39-TR1-19, L25. -- 13 of 24 -- 14 HIS HONOUR: So where's the risk? APPLICANT: Where's the risk? As I've explained, I are currently suspended, and they're still not following processes. I approached my [indistinct] as a health and safety representative about a safety issue. She then tells me I'm not a health and safety rep because I haven't completed the training that she's meant to put me on, which I was removed from because I was suspended, and then commences an argument with me. Because I choose to argue back, I get suspended. And again, we're 72 days, I have not received a show cause notice, I have not received notification that - who the delegate is that I'll be dealing with. I have received nothing, Commissioner. HIS HONOUR: Yes. APPLICANT: They are breaching the directives.42 [50] In relation to the second instance of alleged bullying, the Applicant said APPLICANT: They're not abiding by natural justice and procedural fairness in the second - in the grievance of Ms Anderson. They've failed to abide by natural justice in allowing Ms - - - HIS HONOUR: Yes. APPLICANT: - - - Mallat [sic] to be the delegate, because she is a biased delegate, and they've procedurally flawed because they have not notified me of the grievance as soon as practicable. They have not asked me for a continuance after the days, because I am a party to the grievance as per the Public Service Directive.43 [51] Further, in response to the Commission asking why to make an order to stop bullying and where is the risk he will continue to be bullied in the workplace, the Applicant went onto say: APPLICANT: In my grievance to Professor Keyes, in documents provided by the respondent - - - HIS HONOUR: Yes. APPLICANT: - - - he emailed the chief - the head of HR, who recommended Steven Eaton be the delegate to handle that. HIS HONOUR: Okay. APPLICANT: Right? Steven Eaton's made it. So they're recommending people that have made biased decisions against me. They will continue to make biased decisions against me because there's no one left to make a decision against me, because they've all made biased decisions against me within the Townsville 42 TR1-22, LL10-30. 43 TR1-25, LL20-29. -- 14 of 24 -- 15 Hospital Health Service. I think there's a high chance that I - they won't follow procedure.44 Respondent's submissions [52] The Respondent submits the Applicant is attempting to subvert reasonable management action in respect of Ms Anderson's complaints and to avoid responding to those complaints which raise concerns as to the Applicant's own intimidatory and aggressive behaviour in the workplace.45 [53] In their oral submissions the Respondent said, "neither of the letters are show cause letters … they don't initiate a disciplinary process. They're a preliminary process before - just an investigation phase, … [t]he critical issue in the 29 October 2021 letter is whether that access was authorised … whether it was a breach of the confidentiality and privacy policy".46 [54] The Townsville Hospital and Health Service Policy effective from 8 September 2016 states under the heading, Intent of this policy, "[t]he purpose of this policy is to … only where necessary to perform operational duties … or other functions permitted by law". Under the heading, Scope, the policy states "[c]ompliance with this policy is mandatory".47 [55] The Respondent referred to the Hospital and Health Boards Act 2011 ('HHB Act'), part 7, Confidentiality where s 139 provides a definition of confidential information. Section 139A refers to a designated person which includes the Applicant and s 142 prohibits disclosure of confidential information. The relevant section is s 145 of the HHB Act which provides: Disclosure of confidential information for care or treatment of person 145 Disclosure of confidential information for care or treatment of person A designated person or prescribed health professional may disclose confidential information if the disclosure is for the care or treatment of the person to whom the information relates. [56] In referring to Exhibit 1, the Respondent said, "CIMHA users are reminded of their responsibilities … should only access a consumer's record in CIMHA when it's part of your duties" and "if someone is found wilfully neglecting these conditions, the matter will be referred for investigation and possibly be subject disciplinary action".48 44 TR1-26, LL26-40. 45 Respondent's submissions filed 20 October 2023, [8]. 46 TR1-61, LL18-26; TR1-62, LL11-13. 47 TR1-62, L30-TR1-63, L 9; Exhibit 15, p 1. 48 TR1-66, LL8-32; Exhibit 1 - Townsville Mental Health Service Group - Potential Access Breach Process, p 8 of 8. Effective 16.06.21; and Procedure - THHS - Monitored access - Consumer Integrated Mental Health and Addiction Application (CIMHA). -- 15 of 24 -- 16 [57] The Respondent referred to the Applicant's letter to Mr Baird on 27 August 2021 where he said: I accessed the patient's CIMHA to confirm the MHA (Mental Health Act) status of the patient and confirm that it didn't meet the requirements as per the Mental Health Act 2016, thus being in breach of the Act.49 [58] The Respondent went on to say: So what Mr Corney does, in this paragraph, in this sentence, is that he very clearly identifies the reason why he hopped on CIMHA on the 24th and the 26th, and the reason why he accessed those patient records, which was not to do with his care and treatment, wasn't to do with the handover process or his care and treatment of those patients on any particular day; it was to check whether the LCTs, the Limited Community Treatment orders in respect of those patients were MHA, Mental Health Act, compliant. So this was consistent with the complaint that he had raised, and he said earlier this morning that he raised that complaint on or about the 24th of July, and so this is him obtaining the information that he needs to substantiate his suspicions about a breach of Mental Health Act, but not about his care of those particular patients.50 The warning letter of 29 October 2021 [59] The letter of 29 October 2021 followed an internal review into the Applicant's conduct in accessing electronic medical records of two patients of the Adult Acute Mental Health Inpatient Unit ('AAMHIU') on 24 and 26 July 2021. On 17 August 2021 the Applicant was provided with an opportunity to respond together with a copy of the Consumer Integrated Mental Health and Addiction Application ('CIMHA') audits supporting the access had occurred.51 [60] On 27 August 2021 the Applicant responded and acknowledged he had accessed the patient records asserting it was relevant for him to do so in carrying out his role. The Applicant claims the letter was in retaliation to him raising complaints about the MHSG and that he was being harassed to try to intimidate him against making further complaints.52 [61] On 8 September 2021 the Applicant attended a meeting with Mr Baird and Ms Amanda Beckinsale, Acting Nurse Unit Manager to address his concerns. The Applicant was provided with a signed note of that meeting to which he provided a response.53 [62] In her letter of 29 October 2021, Ms Mallett: • clarified the role of TCCU clinicians (including the Applicant) was to provide support to the AAMHIU team when required, but that patients admitted to the Pre-Discharge Satellite Unit (PDSU) remained under the management and care of the AAMHIU; 49 Exhibit 14 - Letter from Applicant to Mr Baird on 27 August 2021; TR1-68, LL34-39. 50 TR1-68, L47-TR1-69, L9. 51 Respondent's submissions filed 20 October 2023, [31], [32]. 52 Ibid, [33]. 53 Ibid, [34]. -- 16 of 24 -- 17 • advised that the particular patients whose records were accessed were under the direct clinical care of the allocated AAMHIU nurse, not the Applicant; • found that the Applicant's access of the patient records was not necessary for work-related purposes and in breach of the MHSG Monitored Access - CIMHA Procedure. That is, the Applicant's access of the records was unauthorised; • warned the Applicant that he must only access records of patients in his direct clinical care; • further advised the Applicant that, 'I expect that if you identify any concerns regarding care of PDSU consumers, you escalate these concerns to your Shift Coordinator or Clinical Nurse Consultant in the first instance to enable local resolution. Should this effort fail to address your concerns, please escalate to the Nursing Director and to myself as Service Director'; • acknowledged the Applicant's assertion that the complaint about accessing patient records had been raised to intimidate the Applicant against raising his own complaints, and then stated: '[i]n review of the steps taken to work through your concerns and support you have received from your line management, I am satisfied that the MHSG have undertaken reasonable management action in addressing this matter. I was unable to identify evidence to support your statement that MHSG are trying to intimidate you and to stop you from making complaints. I consider the action to be appropriate in the circumstances and accordingly, I now consider the matter to be closed'; and • stated that the warning given in the letter was 'not considered as a disciplinary action' against the Applicant, but would be taken into consideration if the Applicant subsequently failed to accurately and appropriately use CIMHA or any other patient medical record system.54 [63] On 3 December 2021 the Applicant lodged a complaint against Ms Mallett in relation to the letter of 29 October 2021.55 [64] The Applicant's complaint was assigned to Mr Stephen Eaton, Chief Operating Officer, THHS who advised there was no evidence of repeated, inappropriate behaviour by Mr Baird; Mr Baird and Ms Mallett followed an appropriate process; despite the Applicant disagreeing with Ms Mallett's decision she had provided reasonable direction regarding managing similar issues in the future; and it was reasonable to review and investigate potential breaches of privacy and confidentiality of consumer records as well as the Applicant's allegation that Mr Baird and Ms Mallett had used that process because he had raised concerns regarding compliance with the Mental Health Act which were unsubstantiated.56 [65] On 6 April 2022 Mr Eaton and Ms Aubrey Murakami, HR Business Partner met with the Applicant at his request to discuss concerns about the 29 October 2021 letter. On 20 April 2022 the Applicant emailed Mr Eaton following up his grievance in particular that he had been specifically targeted by Mr Baird after raising valid issues and that Ms Mallett had 'perpetuated' and was 'complicit in the bullying behaviour'.57 54 Respondent's submissions filed 20 October 2023, [35]. 55 Ibid, [36]. 56 Ibid, [38]. 57 Ibid, [39]-[40]. -- 17 of 24 -- 18 [66] Mr Eaton advised the Applicant on 25 May 2022 as follows: a. confirmed the finding of Ms Mallett that the Applicant's access of the patient records was unauthorised, was appropriate and fair; b. confirmed that he considered there was no evidence that bullying had occurred, and that providing an opportunity to respond to a concern is not of itself a form of bullying; c. confirmed that raising a concern about a potential breach of privacy and confidentiality is not considered as a vexatious complaint as managers are tasked with the responsibility of protecting the personal and confidential health information of patients and consumers; d. as to the Applicant's belief he was being targeted because of raising various concerns with management, both Mr Baird and Ms Mallett clearly reiterated there were no concerns with the Applicant continuing to raise any issues of risk or safety, and had provided the Applicant with escalation pathways for any future risk and safety concerns; and e. advised the Applicant if he was dissatisfied with his decision (internal review), he may refer his grievance to an appropriate external body for review/appeal.58 [67] On 4 January 2023 the Applicant met with Professor Keyes to discuss his ongoing grievances as to the 29 October 2021 warning. By letter dated 6 January 2023 Professor Keyes advised the Applicant that the warning provided to him by Ms Mallett on 29 October 2021 was rescinded, as he did not breach confidentiality.59 The letter of 9 May 2023 [68] In her letter of 9 May 2023,60 Ms Mallett: a. notified the Applicant that concerns had been raised by Ms Pamela Anderson Clinical Nurse Consultant, TCCU in relation to the Applicant's conduct at the workplace on 13 June 2022 and 17 January 2023. Both were incidents of alleged aggressive and threatening behaviour by the Applicant towards Ms Anderson; b. disclosed to the Applicant witness statements relating to both incidents; c. advised the Applicant that CCTV footage had been obtained of both incidents and that the Applicant was able to review to inform his response by arrangement with Mr Benjamin Rooskov, HR Business Partner, MSHG; d. provided the Applicant an opportunity to respond; and e. indicated that no decision had been made as to how to proceed with this matter, pending the Applicant's response.61 [69] The Applicant responded on 19 July 2023 by email to Professor Keyes, as well as to HR: a. asserting that Ms Mallett was not an appropriate delegate in the matter as 'she previously supported a vexatious grievance and took unlawful management action' referring to the warning letter of 29 October 2021; b. attaching Directive 11/20 Individual Employee Grievances; c. claiming 'management of TUH have not acted in good, they did not inform me of the grievance in a timely manner and have breached 9.1 of the directive'; and 58 Respondent's submissions filed 20 October 2023, [41]. 59 Ibid, [42]-[43]. 60 Delivered to the Applicant by email from Mr Rooskov on 28 May 2023. 61 Respondent's submissions filed 20 October 2023, [44]. -- 18 of 24 -- 19 d. did not provide any substantive response to the alleged incidents at the workplace on 13 June 2022 and 17 January 2023.62 [70] On 27 September 2023 Professor Keyes acknowledged the Applicant's response and stated: ' … I confirm that I am not the appropriate delegate to consider your response (and have not considered it further). However I will refer your email dated 19 July 2023 to an independent delegate (not Ms Mallett) for his/her consideration as to what further action, if any, will be taken in response to the response to concerns letter dated 9 May 2023'.63 Whether Respondent's conduct reasonable management action? [71] In the submissions of the Applicant he said "the action by Ms Mallett was not reasonable as she has not followed the documented policies by the PSC and Q Health". The Applicant relied on PSC Directive 11/20 - Individual Employee Grievances and Queensland Health HR policy E12 Individual employee grievances.64 [72] The Respondent submitted Ms Mallett's conduct was reasonable management action taken in a reasonable way. In oral submissions, the Respondent stated further: In terms of reasonable management action, Ms Mallett's conduct in issuing both the 29 October letter and the 9 May letter was reasonable management action. In both instances, it was within the authority of Ms Mallet's role to do so. In both instances, Mr Corney was afforded procedural fairness, in that he was properly informed of the concerns against him and given a fair opportunity to respond. In both instances, the relevant procedures and policies were followed, and in the case of the 29 October 2021 letter, Ms Mallett carefully and reasonably considered the material before her, including Mr Corney's response, and although she concluded that there had been an unauthorised access of the patient records by Mr Corney, she determined in the circumstances to take the lowest form of management action available, which was to warn Mr Corney as to his conduct. And in doing so, Ms Mallett went to some length in her letter to explain to Mr Corney why the access was unauthorised in the circumstances and how he should deal with the issue in the future. So all in all, it was a pretty light warning. Mr Corney's reaction to it, his perceived sense of grievance and the subsequent escalation of the issue is disproportionate. There can be no doubt that he feels aggrieved and there is no doubt that he feels that it should be a different outcome, but that is not because the action taken by Ms Mallett was not reasonable management action taken in a reasonable way, and so Mr Corney's application must fail on this issue also.65 Was Applicant afforded procedural fairness? [73] The Applicant continued to argue he was not provided procedural fairness. He said, "No, because they're not following procedure. They're not following the rules around natural justice and procedural fairness."66 62 Respondent's submissions filed 20 October 2023, [47]. 63 Ibid, [48]. 64 Applicant's submissions filed 14 September 2023, [7]-[9]. 65 TR1-98, LL21-39. 66 TR1-38, LL16-17. -- 19 of 24 -- 20 [74] As already outlined, the Respondent said the Applicant was afforded procedural fairness, in that he was properly informed of the concerns against him and given a fair opportunity to respond. Whether the behaviour created a risk to the Applicant's health and safety? [75] In submissions, the Respondent said: The next issue which the Commission must determine is whether the behaviour created a risk to Mr Corney's health and safety. Now, there's no proper evidential basis on which this Commission could safely make such a finding. Mr Corney has led no medical evidence to support that such a risk exists, or even if it did, that there is any connection between this risk and Ms Mallett's alleged conduct. As I said, to the extent that Mr Corney is aggrieved by the access issue - and I think there's no doubt that he is genuinely aggrieved by that - that's an issue that looms large, much larger than Ms Mallett's particular role in it.67 Is there a risk that the Applicant will continue to be bullied in the workplace? [76] In response to a question from the Commission, the Applicant said: HIS HONOUR: … Where's the risk that you'll be - going to be continued to be bullied? APPLICANT: In my grievance to Professor Keyes, in documents provided by the respondent - - - HIS HONOUR: Yes. APPLICANT: - - - he emailed the chief - the head of HR, who recommended Steven Eaton be the delegate to handle that. APPLICANT: Right? Steven Eaton's made it. So they're recommending people that have made biased decisions against me. They will continue to make biased decisions against me because there's no one left to make a decision against me, because they've all made biased decisions against me within the Townsville Hospital Health Service. I think there's a high chance that I - they won't follow procedure.68 [77] In oral submissions the Respondent stated: … [T]here's no risk of continued bullying. First, because it didn't occur in the first place. Second, because Ms Mallett is not the decision maker in respect of the allegations the subject of the 9 May 2023 letter, and Mr Corney himself has failed to identify any real risk. So the application should be dismissed because the pre-conditions in section 275(1) as to the exercise of the power in section 275(2) will not be substantiated on the evidence. And the state would like the opportunity to make submissions in respect of costs.69 67 TR1-98, LL11-19. 68 TR1-26, LL23-40. 69 TR1-98, LL41-47. -- 20 of 24 -- 21 Consideration [78] The Applicant relies on the following two instances of alleged bullying and seeks orders to stop bullying pursuant to s 275 of the IR Act: (i) the issuing of a letter dated 29 October 2021 to the Applicant providing a warning as to his unauthorised access of electronic medical records of two patients of the Adult Acute Mental Health Inpatient Unit ('AAMHIU') between 24 and 26 July 2021; and (ii) the issuing of a letter dated 9 May 2023 to the Applicant providing him with an opportunity to respond to concerns raised by Ms Pamela Anderson, Clinical Nurse Consultant as to alleged inappropriate conduct by the Applicant in the workplace on two occasions. [79] The task of this Commission is not to engage in a point-by-point merits review of each aspect of the disciplinary process. Rather, its task is to undertake an objective assessment of the evidence to determine whether the evidence constitutes bullying behaviour and, in that context, whether it comprised no more than reasonable management action carried out in a reasonable manner.70 [80] The Commission can make any order it considers appropriate to stop bullying if it is satisfied the employee has been bullied and there is a risk the employee will continue to be bullied. [81] For the purposes of the IR Act, workplace bullying is repeated, and unreasonable behaviour directed towards a worker or a group of workers that creates a risk to health and safety.71 [82] The concept of an individual or individuals engaging in repeated, unreasonable behaviour implies the existence of persistent, unreasonable behaviour which might refer to a range of behaviours over time, however, no specific number of incidents is required for the behaviour to represent repeated, unreasonable behaviour, provided there is more than one occurrence. The same specific behaviour does not have to be repeated.72 [83] Repeated behaviour refers to the persistent nature of the behaviour and can involve a range of behaviours over time. [84] In addition, 'unreasonable behaviour' should be considered to be behaviour that a reasonable person, having regard to the circumstances, may consider to be unreasonable 70 Appellant v Respondent [2015] FWCFB 1972, [30]. 71 Industrial Relations Act 2016, s 272. 72 Ms SB [2014] FWC 2104, [41]; Re SB (2014) 244 IR 127. -- 21 of 24 -- 22 such that the assessment of the behaviour involves an objective test having regard to all the relevant circumstances applying at the time.73 [85] In Welsh v Logan City Council,74 Merrell DP identified several examples of bullying behaviour: The features that one might expect to find in a course of repeated, unreasonable behaviour that would constitute bullying at work include intimidation, coercion, threats, humiliation, shouting, sarcasm, victimisation, terrorising, singling-out, malicious pranks, physical abuse, verbal abuse, emotional abuse, belittling, bad faith, harassment, conspiracy to harm, ganging up, isolation, freezing-out, ostracism, innuendo, rumour-mongering, disrespect, mobbing, mocking, victim- blaming and discrimination.75 [86] In Ms SB it was alleged that employees who reported to her in the role of manager were spreading rumours in the workplace and making false complaints of bullying against her. Ms SB criticised her manager and HR in not supporting her and in its handling of complaints against her. [87] Ms SB criticised her employer for investigating the bullying allegations which were later found to be unsubstantiated. [88] The Fair Work Commission found that the fact that the allegations were unsubstantiated does not mean the allegations were false and misleading, or made improperly, to be unreasonable behaviour. Nor was it unreasonable for the employer to investigate the bullying allegations by engaging an external investigator. [89] The following principles can be gleaned from the decision in Ms SB: • "management actions do not need to be perfect or ideal to be considered reasonable; • a course of action may still be 'reasonable action' even if particular steps are not; • to be considered reasonable, the action must also be lawful and not be 'irrational, absurd or ridiculous'; • any 'unreasonableness' must arise from the actual management action in question, rather than the applicant's perception of it; and 73 Ms SB [2014] FWC 2104, [41],[43]; Re SB (2014) 244 IR 127. 74 [2021] QIRC 141. 75 Ibid, [27]; Mac v Bank of Queensland & Ors [2015] FWC 774; (2015) 247 IR 274, [99]. -- 22 of 24 -- 23 • consideration may be given as to whether the management action involved a significant departure from established policies or procedures, and if so, whether the departure was reasonable in the circumstances."76 [90] What is necessary is for Applicant to demonstrate that the issuing of the correspondence on 29 October 2021 and 9 May 2023 lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances.77 [91] It will be recalled that the background to the issuing of the correspondence was first, an allegation that the Applicant had accessed the electronic medical records of two patients without a legitimate reason for doing so; and secondly, an allegation by a Clinical Nurse Consultant that the Applicant had engaged in inappropriate conduct on two occasions. [92] In relation to the first allegation, the Health Service and its staff have an obligation to protect access to the electronic medical records of patients. In his response, the Applicant acknowledge that he had accessed the CIMHA notes of patients. It was acknowledged that whilst the Applicant believed he had genuine reasons for accessing the records, the fact that he had no direct clinical care for the patients made his access unauthorised. No disciplinary sanction was imposed, but the Applicant received a warning. . [93] In respect of the second allegation, the correspondence of 9 May 2023 particularised the two allegations. The Applicant was afforded an opportunity to respond to the allegations. To assist his response, the Applicant was provided with witness statements in support of the allegations together with the ability to view CCTV footage used to support the allegations. [94] The process followed by the Respondent in response to the allegations was unremarkable. The Applicant made a series of unsupported allegations against those who commenced the disciplinary process and the procedures followed. [95] The Applicant needed to demonstrate that the issuing of the correspondence "lacked any evident and intelligible justification such that it would be considered by a reasonable person to be unreasonable in all the circumstances", this he has failed to do. [96] The correspondence of 29 October 2021 and 9 May 2023 does not constitute bullying. Such correspondence constitutes, in my view, reasonable management action taken in a reasonable way. [97] There must be a causal link between the behaviour and the risk to health and safety. A risk to health and safety means the possibility of danger to health and safety, which is not 76 Ms SB [2014] FWC 2104, [51]; Re SB (2014) 244 IR 127. 77 Mac v Bank of Queensland Limited and Ors [2015] FWC 774; (2015) 247 IR 274. -- 23 of 24 -- 24 confined to actual danger to health and safety. The risk must also be real and not simply conceptual.78 [98] The first alleged incident of bullying occurred on 29 October 2021. Some eighteen months later, the Applicant raises the second alleged incident of bullying. [99] Moreover, I am satisfied that there is no risk of continued bullying. First, the Applicant has failed to make out the allegation that he was bullied; secondly, I note that Ms Mallett is not the decision maker in respect of the allegations the subject of the correspondence of 9 May 2023; and thirdly, the Applicant was absent from the workplace as he was suspended on full pay until 27 October 2023. [100] There is no evidence before the Commission of exposure to the chance of continued bullying in the workplace at the time of making his application, or on the consideration of this application. [101] Further, there is no evidence to support the contention that the Respondent has repeatedly behaved unreasonably towards the Applicant or that such behaviour creates a risk to the health and safety of the Applicant. The conduct of which the Applicant complains was, in my view, reasonable management action carried out in a reasonable manner. [102] The application must fail. Conclusion [103] For the reasons given above, I make the following order: Order 1. The Applicant's application for an order to stop bullying is dismissed. 78 Ms SB [2014] FWC 2104, [44]-[45]; Re SB (2014) 244 IR 127. -- 24 of 24 --