Beaumont v State of Queensland (Queensland Health) [2024] QIRC 156

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Beaumont v State of Queensland (Queensland Health) [2024] QIRC 156 PARTIES: Beaumont, Elizabeth (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2023/155 PROCEEDING: DELIVERED ON: Public Sector Appeal – Disciplinary Decision 21 June 2024 MEMBER: HEARD AT: Power IC On the papers ORDER: 1. The appeal is allowed. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with a decision that the disciplinary action to be imposed under s 93 of the Act is a reprimand. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY- Public Sector Appeal – appeal against a decision pursuant to s 131(1)(c) of the Public Sector Act 2022 (Qld) to impose disciplinary action – where proposed disciplinary action is a temporary reduction of remuneration level – where the Appellant opposes the disciplinary action – where the disciplinary action is disproportionate – -- 1 of 20 -- 2 disciplinary act is not fair and reasonable. LEGISLATION AND OTHER INSTRUMENTS: Code of Conduct for the Queensland Public Service, Cl 4 Discipline Directive 05/23, Cl 4, Cl 5, Cl 7 Industrial Relations Act 2016 (Qld), s 562B, s 562C Public Interest Disclosure Act 2010 (Qld) Public Sector Act 2022 (Qld), s 91, s 131 Public Service Act 2008 (Qld), s 25 CASES: Alderding v State of Queensland (Queensland Health) (No 2) [2022] QIRC 315 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10 Goodall v State of Queensland & Anor [2018] QSC 319 Purcell v State of Queensland (Queensland Health) [2022] QIRC 291 Reasons for Decision Introduction [1] Ms Elizabeth Beaumont ('the Appellant') is employed by the State of Queensland (Queensland Health) as an Assistant in Nursing at Eventide Home Rockhampton within the Central Queensland Hospital and Health Service ('CQHHS'). [2] By letter dated 5 April 2022, Ms Susan Foyle, Executive Director Nursing and Midwifery, Quality and Safety, CQHHS, wrote to the Appellant inviting her to show cause ('the First Show Cause Notice') in relation to the following allegations – Allegation one On Sunday 11 July 2021 at approximately 1000hours you behaved inappropriately towards a resident … by swearing at him and denying him privacy to use the bathroom. -- 2 of 20 -- 3 Allegation two On 14 July 2021 at approximately 1030hours you failed to follow a lawful direction provided to you when you discussed the details of your suspension with two staff members. [3] The Appellant replied to Allegation 1 via email on 26 April 2022, and the QNMU attempted to file an additional response on 30 June 2022 ('the QNMU Response'). The QNMU Response was sent to an incorrect email address and was not available to Ms Foyle when she initially determined whether the Allegations had been substantiated. [4] In a letter dated 10 August 2022, Allegation 1 and Allegation 2 were substantiated and it was determined that there were grounds for disciplinary action ('the Second Show Cause Notice'). [5] On 16 August, the QNMU contacted CQHHS via telephone and it was determined that the QNMU Response had been sent to the incorrect email address and therefore had not been considered. On 17 August, the CQHHS advised that the delegate had determined that the matter was 'on hold' until the re-issuing of an Amended Second Show Cause Notice which would consider the QNMU Response. [6] On 30 August 2022, the QNMU supplied an additional addendum to the QNMU Response. [7] On 18 April 2023, the Respondent issued an Amended Second Show Cause Notice which found that while Allegation 1 was not substantiated, Allegation 2 had been substantiated and the disciplinary process would be continuing. As Allegation 2 had been substantiated, it was determined that there were grounds for disciplinary action pursuant to s 91(1)(h) of the Public Sector Act 2022 ('the PS Act') on the basis that the Appellant had contravened, without reasonable excuse, a relevant standard of conduct in a way that was sufficiently serious to warrant disciplinary action. [8] Ms Pauline McGrath, Chief Operating Officer, CQHHS ('the decision maker') provided the Appellant with an opportunity to respond to the proposed disciplinary action of a temporary reduction of the Appellant's remuneration level from Nurse Grade 1, Band 1, Pay Point 6 to Nurse Grade 1, Band 1, Pay Point 5 for a period of three months. [9] By email dated 28 April 2023, the Appellant accepted the Respondent's decision to substantiate Allegation 2 but requested that the proposed penalty be amended to a reprimand or a monetary penalty. [10] In a letter dated 24 July 2023 the decision maker outlined her decision to impose the disciplinary penalty of a temporary reduction of the Appellant's remuneration level for a period of three months ('the decision'). [11] On 10 August 2023, the Appellant filed an appeal notice appealing against a disciplinary -- 3 of 20 -- 4 decision dated 24 July 2023 pursuant to s 131(1)(c) of the PS Act. [12] The issue for determination is whether the disciplinary finding was fair and reasonable. Legislative Framework [13] Section 91 of the PS Act provides the following grounds for discipline: 91 Grounds for discipline (1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has— (a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or (b) been guilty of misconduct; or (c) been absent from duty without approved leave and without reasonable excuse; or (d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or (e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or (f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement— (i) failing to disclose a serious disciplinary action; or (ii) giving false or misleading information; or (g) contravened, without reasonable excuse, a provision of— (i) this Act, other than section 39 or 40; or (ii) another Act that applies to the employee in relation to the employee's employment; or (h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action. (2) A disciplinary ground arises when the act or omission constituting the ground is done or made. (3) Also, a chief executive may discipline, on the same grounds mentioned in subsection (1), a public sector employee under section 94 or a person under section 95. (4) To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles. (5) In this section— misconduct means— (a) inappropriate or improper conduct in an official capacity; or (b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed. -- 4 of 20 -- 5 Example of misconduct— victimising another public sector employee in the course of the other employee's employment in the public sector relevant standard of conduct — (a) for a public sector employee, means— (i) standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or (ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and (b) for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1)—includes a code of practice under section 41 of that Act; and (c) for a public sector employee who is a fire service officer under the Fire and Emergency Services Act 1990—includes a code of practice under section 7B of that Act. responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law. [14] Clause 5.3 of the Discipline Directive 05/23 ('the Directive') provides the following disciplinary framework for the public sector: 5.3 Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law. [15] Clause 7 of the Directive provides the requirements to commence a discipline process: 7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. A disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles, or the public sector principles as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91. 7.2 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. In making this determination, the chief executive must assess: a. the seriousness of the employee's personal conduct and/or work performance, and b. whether the matter should be resolved through management action instead, and c. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and d. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and e. whether management action has recently been taken for previous similar instance/s of -- 5 of 20 -- 6 inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and f. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and g. whether further information is required to make a decision to commence a disciplinary process, and h. for a breach of relevant standard of conduct under section 91(1)(h), that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter. Appeal principles [16] The appeal must be decided by reviewing the decision appealed against.1 As the word 'review' has no settled meaning, it must take its meaning from the context in which it appears.2 An appeal under ch 11 pt 6 div 4 of the Industrial Relations Act 2016 (Qld) ('the IR Act') is not by way of rehearing,3 but involves a review of the decision arrived at and the decision making process associated therewith. [17] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination in this matter is whether the decision to impose the disciplinary action was fair and reasonable. Findings which are reasonably open to the decision maker are not expected to be disturbed on appeal. What decisions can the Industrial Commissioner make? [18] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may: (a) confirm the decision appealed against; or (b) set the decision aside and substitute another decision; or (c) set the decision aside and return the issue to the decision maker with a copy of the decision on appeal and any directions considered appropriate. Grounds of appeal [19] In the appeal notice, the Appellant provided the following reasons for appeal: 1 Industrial Relations Act 2016 (Qld), s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10, 261. 3 Goodall v State of Queensland & Anor [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld). 4 IR Act, s 562B(3). -- 6 of 20 -- 7 Appeal Ground 1 - The allegation does not contravene the Code of Conduct 10. The appellant submits that the conduct in relation to allegation 2 (the only substantiated allegation) does not amount to a failure to "comply with all reasonable and lawful instructions," within the meaning of clause 4.1 of the Code of Conduct for the Queensland Public Service. It is therefore submitted the discipline decision is not fair and reasonable as the appropriateness of the imposed penalty has been considered in light of a conclusion the appellant breached the Code of Conduct for the Queensland Public Service. 11. The appellant submits that the direction was not reasonable for the purposes of clause 4.1 of the Code of Conduct for the Queensland Public Service because the respondent in determining to suspend the appellant failed to take reasonable steps to: a. Ensure the appellant's immediate supervisor was aware of the need for the appellant to leave the workplace. b. Ensure the appellant was provided appropriate support to leave the workplace, such as escorting the appellant from the workplace. c. Ensure the appellant was provided appropriate support given she was distressed on receiving the suspension decision. d. Ensure the appellant properly understood the confidentiality direction at the time of giving the suspension decision, which included that the appellant must not inform her immediate supervisor she must immediately leave the workplace prior to the conclusion of her shift. 12. The appellant further submits that the respondent only substantiated that the direction was lawful and therefore failed to appropriately consider this issue of reasonableness in the circumstances. Appeal Ground 2 - The decision on penalty is unfair and unreasonable 13. The decision on penalty is unfair and unreasonable in that it is disproportionate to the substantiated allegation, for reasons as outlined in the response to the NTSC 2. 14. The decision on penalty is unfair and unreasonable in that the respondent failed to give sufficient consideration to: a. The appellant's long history with the respondent, commencing in the 1970s, and with the exception of a twelve-month break, the appellant has worked for the respondent her entire career. b. The appellant's financial circumstances. c. The fact that the appellant was distressed at the time of making the disclosures in relation to Allegation 2. d. That the appellant made the disclosures to her senior and supervising staff to inform them she was leaving the workplace. e. The appellant's cooperation with the investigation process. f. The distressing effect of significant periods of suspension has had on the appellant from the commencement of the discipline process on 5 April 2022 to its conclusion on 24 July 2023. g. The significant delay relating to the discipline process. h. The limited prejudicial effect of the disclosures on the investigative process i. The limited harm caused by the disclosures. -- 7 of 20 -- 8 Submissions [20] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Appellant's submissions [21] In support of the Appeal, the Appellant submits the following in summary: • This appeal concerns the disciplinary process relating to a patient complaint and breach of confidentiality. The Respondent did not substantiate Allegation One, which related to the patient complaint, so it is not a part of this appeal. • Allegation 2 is in relation to the breach of confidentiality, which relates to the Appellant informing her supervisor and another member of staff that she had been suspended and had to leave the workplace. • The Appellant does not contest the substantiation of Allegation 2, with the issue of this appeal being the penalty applied and whether the direction was reasonable for the purposes of the Code of Conduct for the Queensland Public Service ('the Code of Conduct'). • The Appellant seeks an order that the discipline penalty be substantiated with an order taking no further action. The Appellant alternatively submits that a reprimand would be the appropriate penalty. Appeal Ground 1 – The allegation does not contravene the Code of Conduct • The conduct in relation to Allegation 2 does not amount to a failure to 'comply with all reasonable and lawful instructions' within the meaning of cl 4.1 of the Code of Conduct. • The decision was not fair and reasonable as the appropriateness of the imposed penalty has been considered based on the conclusion that the Appellant breached the Code of Conduct in a comparative manner to find that the substantiated conduct did not amount to misconduct in the decisions of Alderding and Purcell. • The direction was not reasonable for the purposes of cl 4.1 of the Code of Conduct because the Respondent, in determining to suspend the Appellant, failed to: a. ensure the Appellant's immediate supervisor was aware of the need for the Appellant to leave the workplace; -- 8 of 20 -- 9 b. ensure the Appellant was provided appropriate support to leave the workplace, such as escorting the Appellant from the workplace; c. ensure the Appellant was provided appropriate support given she was distressed on receiving the suspension decision; and d. ensure the Appellant properly understood the confidentiality direction at the time of giving the suspension decision, which included that the Appellant must not inform her immediate supervisor that she needed to immediately leave the workplace prior to the conclusion of her shift. • Clause 7.1 of the relevant suspension directive at the time, Suspension Directive 16/20, requires that "agencies need to have ongoing and clear communication with the employee ..." to "assist in clarifying the employer's expectations." • To ensure that its direction of confidentiality was reasonable, the Respondent needed to apply this principle to ensure that the Appellant fully understood the confidentiality direction at the time of giving the written direction. • The Respondent only substantiated that the direction was lawful, but failed to appropriately consider whether the confidentiality direction was reasonable in the circumstances. • The Appellant submits that therefore, as the Respondent has not made a determination on whether the direction was reasonable, the Respondent has failed to substantiate that the Appellant breached the Code of Conduct by failing to comply with a reasonable and lawful instruction. Appeal Ground 2 – The decision on penalty is unfair and unreasonable • The Appellant further submits that the decision is unfair and unreasonable in that the Respondent failed to give sufficient consideration to: a. the Appellant's employment history; b. the Appellant's financial circumstances; c. the fact that the Appellant was distressed at the time of making the disclosures in relation to Allegation 2; d. that the appellant made the disclosures to her senior and supervising staff to inform them she was leaving the workplace; e. the Appellant's cooperation with the investigation process; f. the distressing effect that significant periods of suspension has had on the Appellant; g. the significant delay relating to the discipline process; and h. the limited prejudicial effect and/or harm caused by the Appellant's disclosures on the investigative process. -- 9 of 20 -- 10 (a) Long history with the employer • The decision on penalty is unfair and unreasonable as the Respondent failed to give sufficient consideration to the Appellant's long history working for the Respondent. • This is evidenced in the decision where the decision maker did not consider the matter when considering the appropriate penalty, despite the decision maker referencing that the Appellant had raised that "consideration should be given to [her] overall work record and longstanding employment with Queensland Health." • There is no reasonable justification to not consider or mitigate any penalty against the fact that the Appellant has had nearly five decades of service with the employer without any history of breaching confidentiality. (b) Financial circumstances • The decision on penalty is unfair and unreasonable in that the decision maker has failed to appropriately consider the Appellant's response regarding her financial circumstances. • It is submitted that the Appellant is 84 years of age and lives on her own in rented accommodation, which is subject to an increase of $40 per week on 1 September 2023. (c) Distress and disclosure to senior staff • The decision maker failed to appropriately consider the distress the Appellant was suffering from at the time of the breach of confidentiality. • The statements of Mr Dewberry and Ms Docherty clearly evidence that the Appellant was distressed at the time of making the disclosure. As this fact was included within the particulars of Allegation 2, the decision maker should have considered the matter when applying any penalty. (d) – (e) Remorse and cooperation with the investigation process • The decision on penalty is unfair and unreasonable in that the Respondent failed to give consideration to the Appellant's remorse and cooperation with the investigative process. • In the Appellant's response to the Second Show Cause Notice, the Appellant provides through the QNMU: -- 10 of 20 -- 11 Ms Beaumont accepts your decision to substantiate allegation two. She advises she is deeply sorry for failing to follow a lawful direction and never intended to breach the code of conduct. The QNMU submit Ms Beaumont's actions to be at the lower end of offending, in that no one was harmed by her actions, nor did it present any prejudice to your investigation of the matter. … Ms Beaumont has engaged openly, honestly and patiently in the investigation which has been ongoing since 14 July 2021, some 22 months ago. Her suspension has been a distressing and overwhelming experience. • The decision maker in the decision does not consider these matters aside from acknowledging "you apologise for failing to follow a lawful direction and submit that you never intended to breach the Code of Conduct for the Queensland Public Service." • The decision maker further states that: I have had regard to the following ... that you have not denied telling Mr Dewberry and Ms Docherty of your suspension but have submitted that this disclosure does not amount to a breach of the confidentiality direction ... As advised in my letter to you dated 18 April 2023, I continue to not accept your rationale in that regard and remain satisfied on the information before me that you discussed the details of your suspension with Mr Dewberry and Ms Docherty in contravention of the express direction given to you by Ms Kylie Cookson ... • The Appellant submits that this is misconceived, in that the Appellant clearly accepts the substantiation of the allegation that she informed her supervisor that she needed to leave her shift early due to being suspended. It is therefore submitted that the decision maker applied the discipline penalty whilst erroneously believing that the Appellant did not accept the substantiation of the allegation and therefore by inference was not remorseful. (f) – (g) Delay and the suspension period • The decision maker fails to consider the Appellant's response that "her suspension has been a distressing and overwhelming experience." While suspension is an administrative action taken for administrative necessity, in circumstances where the Appellant was placed on suspension from 14 July 2021 (excluding some periods of alternate duties) to her return to normal work on 24 April 2023, it is submitted the decision maker should have given consideration to the concerns raised by the Appellant. (h) Harm caused and effect on the investigation • The decision maker provides "regardless of whether you felt the breach impacted -- 11 of 20 -- 12 the process or not, does not change the seriousness of your actions." • It is submitted that there is no reasonable justification to not consider or mitigate any penalty against the type of confidentiality breached and what the effect of that breach was on the employer, as opposed to treating all breaches of confidentiality with the same degree of seriousness. Respondent's Submissions [22] The Respondent provided the following submissions in summary: Direction was lawful and reasonable • The Appellant's conduct in relation to Allegation 2 amounts to a failure to comply with all reasonable and lawful instructions within the meaning of cl 4.1 of the Code of Conduct. The Appellant does not dispute that she engaged in the alleged conduct, and that she breached a lawful direction. The Appellant's submissions relate to the alleged unreasonableness of the direction. • The cases cited by the Appellant (Alderding and Purcell) each involve a consideration of whether the substantiated conduct met the threshold for misconduct, for the purpose of considering whether a discipline decision was fair and reasonable. The Commission's assessment of the fairness and reasonableness of those discipline decisions therefore included a consideration of factors relevant to a finding of misconduct, such as the deliberateness of and intention underlying inappropriate conduct. Notably, the Appellant was not found to have engaged in misconduct. The deliberateness of the Appellant's breach of the direction and her intention in doing so is not relevant to the question of whether the direction itself was reasonable. • The Appellant seeks to demonstrate that the direction issued to her was not reasonable, however, the Appellant has not articulated how or why a direction to retain confidentiality is not reasonable. • The Appellant does not appear to dispute the lawfulness of the direction (and accepts the decision maker substantiated the direction as lawful). The Appellant did not dispute the lawfulness or the reasonableness of the direction, including how it was communicated to her, during the disciplinary process. • The direction to maintain confidentiality was, on its face, lawful and reasonable. In circumstances where an employer receives information that raises serious allegations about an employee’s professional conduct, and which leads the employer to form a reasonable belief the employee is liable to discipline and -- 12 of 20 -- 13 subsequently suspends the employee from duty, the employee is routinely directed to maintain confidentiality to preserve the integrity of the process. It was reasonable for the Respondent to direct the Appellant to maintain confidentiality in respect of the matter. • The Respondent’s alleged failure to take the additional reasonable steps posited by the Appellant is, likewise, irrelevant to an assessment of whether the direction itself was reasonable. Nonetheless, none of the ‘reasonable steps’ proposed by the Appellant were required for her to comply with the direction to maintain confidentiality. To avoid contravening the direction, it was open to the Appellant to: a. leave the workplace and allow Kylie Cookson, Acting Director of Nursing Aged Care Clinical and Rehabilitation Services to inform her supervisor of her absence; b. ask Ms Cookson for guidance on how to proceed; c. ask her supervisor to speak privately, inform them simply that she had to leave the workplace and to direct them to speak to Ms Cookson if they had any questions; or d. contact Ms Sharyn O’Mahoney, Manager HR Services as directed in the letter dated 14 July 2021 to make a request to speak about the matter to another staff member. • Even if the Appellant did not understand the written direction (which the Respondent denies), her conduct was not limited to informing her immediate supervisor that she had to leave the workplace. The Appellant spoke to both a Registered Nurse and an Enrolled Nurse about the matter, while a resident was also present in the room. According to witness evidence, the Appellant stated she had been stood down in relation to what she assumed was an incident that occurred on 12 July 2021, and stated she had a twelve-week suspension. It was not necessary for the Appellant to inform her colleagues (who were not her supervisor, despite what is submitted in the appeal notice) she was being suspended, or the suspected reason for her suspension. Disciplinary action was fair and reasonable • The disciplinary action imposed on the Appellant of Nurse Grade 1 Band 1 Pay Point 6 to Nurse Grade 1 Band 1 Pay Point 5 for a period of three months results in a minor reduction in salary of $32.10 per fortnight, or $192.60 in total. This is a penalty towards the lower end of the scale of seriousness, compared with the Appellant’s conduct. -- 13 of 20 -- 14 • The Appellant's submissions that various matters were not considered by the decision maker are misconceived. In the decision, the decision maker specifically considered: a. Ms Beaumont’s overall work record and longstanding employment with Queensland Health; b. the financial impact that a temporary reduction of Ms Beaumont’s remuneration would have on her financial budget; c. Ms Beaumont’s remorse, including that she did not intend to breach the Code of Conduct; d. the allegedly limited prejudicial effect or harm caused by Ms Beaumont’s disclosures on the investigative process. • While the Respondent acknowledges the lengthy period of suspension in this matter, it notes: a. the matter was referred to the Crime and Corruption Commission ('the CCC') on 20 July 2021; b. the matter was resubmitted to the CCC on 8 March 2022, after CQHHS did not receive a response; c. the CCC referred the matter back to CQHHS on 10 March 2022; and d. shortly thereafter on 5 April 2022, the Appellant was issued with the First Show Cause Notice. • The Appellant's conduct demonstrated a significant departure from the expectations of her as an employee of CQHHS. As considered by the decision maker in the decision, breaches of confidentiality are serious in circumstances where a lawful direction has been issued for the purpose of ensuring the integrity of a process. • In Huntington v State of Queensland (Queensland Health), Commissioner Dwyer stated: In general terms, the obligation of an employee to comply with a lawful and reasonable direction is deeply embedded in every employment relationship. It is a fundamental requirement, and any breach of that requirement is liable to shatter the trust required to sustain the employment relationship. • Taking into account all the relevant circumstances of the matter, the reprimand proposed by the Appellant would not adequately address the seriousness of the conduct. Accordingly, the penalty imposed on the Appellant is fair and reasonable. Appellant's Submissions in Reply [23] The Appellant provided the following submissions in reply in summary: -- 14 of 20 -- 15 • The Appellant did not act inappropriately towards a patient, noting that Allegation 1 was not substantiated. • The Appellant maintains that Mr Dewberry (Registered Nurse (RN)) and Ms Docherty (Enrolled Nurse (EN)) were senior and/or supervising staff to the Appellant. The Appellant works as an Assistant in Nursing (AIN) and is directly responsible to an RN whilst on shift. It is noted an AIN would also take direction from an EN. Whilst Mr Dewberry and Ms Docherty may not be formally characterised as the Appellant’s line manager or formal supervisor (which is not alleged in the appeal notice), it is reasonable the Appellant would report to, and inform, her supervising RN on leaving the workplace. Appeal Ground 1 – The allegation does not contravene the Code of Conduct • The standard direction about maintaining confidentiality was not sufficient to ensure the direction was reasonable for the purposes of alleging a breach of the Code of Conduct. • The standard direction about maintaining confidentiality does not establish “ongoing and clear communication with the employee…” to “assist in clarifying the employer’s expectations" as required by cl 7.1 of Suspension Directive 16/20. • When providing the suspension correspondence, the Respondent should have done what was required for the Appellant to be reasonably able to comply with the direction. This included – facilitating the appellant’s exit from the workplace, in circumstances where the respondent would have been aware suspension from employment could result in: a. Distress; and or b. Confusion or a lack of understanding relating to a standard direction within a larger body of correspondence. • It is further submitted that the standard direction about maintaining confidentiality was not reasonable as it fails to consider or adequately demonstrate the management and employment principles provided at section 25 of the Public Service Act 2008 to: a. provide best practice human resource management; b. promote the Government as an employer of choice; and c. manage public resources efficiently, responsibly and in a fully accountable way. -- 15 of 20 -- 16 Appeal Ground 2 – The decision on penalty is unfair and unreasonable • The applied penalty is not towards the lower end of seriousness compared to the Appellant's conduct • The penalty applied constitutes serious disciplinary action within the meaning of section 70(iv) of the Public Sector Act 2022, as it involves a reduction of the Appellant’s remuneration level. The penalty enlivens the requirement for the Appellant to disclose serious disciplinary action on seeking further employment within a public sector entity, and the particulars of the serious disciplinary action taken can be considered when determining the Appellant’s suitability for employment. • It is submitted that the effect of the serious disciplinary action has a significant detrimental effect on the Appellant in seeking other employment within the public sector. • It is also submitted that a reduction in classification band is not a minor reduction. It reflects a loss of a years’ experience in pay entitlement for the specified period. It is noted as a Nurse Grade 1, the Appellant is the lowest paid employee within the Respondent’s nursing stream, and this is reflected in the amount reduced. Consideration [24] The Appellant seeks an order that the disciplinary finding be substantiated with no further action or, alternatively, that a reprimand be ordered as an appropriate penalty. The Appellant’s submissions state that she does not contest the substantiation of the allegation, only whether the direction was reasonable for the purposes of the Code of Conduct and the penalty applied. This is a somewhat confused submission in that conceding the disciplinary finding necessarily concedes that the relevant conduct contravened the Code of Conduct. I have taken the submissions as contesting the disciplinary finding along with the decision to impose a disciplinary penalty. [25] The facts of the alleged conduct are not in dispute. The Appellant was given a letter informing her of the decision to suspend her from duty and directing her to maintain confidentiality. The Appellant admits to discussing her suspension with two other employees. Appeal Ground 1 – The allegation does not contravene the Code of Conduct [26] The Appellant submits that the decision was not fair and reasonable as the appropriateness of the proposed penalty has been considered in light of the conclusion that the Appellant breached the Code of Conduct in a comparative manner to the -- 16 of 20 -- 17 decisions of Alderding5 and Purcell.6 [27] The Appellant submits that the Respondent only substantiated that the direction was lawful, but failed to consider whether the confidentiality direction was reasonable in the circumstances. The Appellant contends that because the Respondent did not determine whether the direction was reasonable, it could not make a finding that the Appellant breached the Code of Conduct by failing to comply with a reasonable and lawful instruction. [28] The Appellant submits that the direction was not reasonable for the purposes of cl 4.1 of the Code of Conduct because the Respondent, in determining to suspend the Appellant, failed to: i. ensure the Appellant's immediate supervisor was aware of the need for the Appellant to leave the workplace; ii. ensure the Appellant was provided appropriate support to leave the workplace, such as escorting the Appellant from the workplace; iii. ensure the Appellant was provided appropriate support given she was distressed on receiving the suspension decision; and iv. ensure the Appellant properly understood the confidentiality direction at the time of giving the suspension decision, which included that the Appellant must not inform her immediate supervisor that she needed to immediately leave the workplace prior to the conclusion of her shift. [29] The matters of Alderding and Purcell involved consideration of whether conduct was appropriately considered ‘misconduct’ in those circumstances. That is not in issue in this matter as the finding was of a breach of the Code of Conduct rather than misconduct. [30] The Appellant contends that the decision maker determined that the confidentiality direction was lawful but did not determine that the direction was reasonable. At its highest, this is a blemish on the process, particularly in circumstances where the Respondent’s submissions confirm their assessment that the direction was considered reasonable. It is common practice when an employee is suspended that an employer will give a direction that confidentiality be maintained to uphold the integrity of any investigation process. There is no material before the Commission in this matter to indicate that the direction was anything other than a lawful and reasonable direction. [31] The Appellant submits that the direction was not reasonable because a number of other steps should have been taken when the Appellant was suspended. There is no requirement that the Respondent undertake any of the actions suggested by the Appellant as outlined in [28]. Some of the suggested actions, such as escorting the Appellant from the 5 Alderding v State of Queensland (Queensland Health) (No 2) [2022] QIRC 315 6 Purcell v State of Queensland (Queensland Health) [2022] QIRC 291 -- 17 of 20 -- 18 workplace, may have led to greater distress and embarrassment. I am not persuaded by the Appellant’s submission that s 25 of the Public Service Act 2008 (Qld) required the Respondent to facilitate the Appellant’s exit from the workplace on the basis of possible confusion over the confidentiality direction. A direction to maintain confidentiality is not one that would reasonably be expected to give rise to confusion, particularly in circumstances where the name of a contact person was provided for any questions. I also note that it was open to the Appellant to simply leave the workplace after being directed to do so, or request that her supervisor speak to Ms Kylie Cookson for further information. [32] The Appellant’s conduct in informing her supervisor of the suspension was a breach of the direction, however, it is her conduct in speaking to her work colleagues about the suspension, in front of a resident, that was more serious. It must have been clear to the Appellant that this conduct was contrary to the direction to keep the matter confidential. [33] On the basis of the admitted conduct, it was open to the decision maker to determine that the Appellant had contravened the Code of Conduct. Appeal Ground 2 – The penalty decision is unfair and unreasonable [34] The Appellant submits that the decision is unfair and unreasonable on the basis that the respondent failed to give sufficient consideration to: a. the appellant's employment history; b. the appellant's financial circumstances; c. the fact that the appellant was distressed at the time of making the disclosures in relation to Allegation 2; d. that the appellant made the disclosures to her senior and supervising staff to inform them she was leaving the workplace; e. the appellant's cooperation with the investigation process; f. the distressing effect that significant periods of suspension has had on the appellant; g. the significant delay relating to the discipline process; and h. the limited prejudicial effect and/or harm caused by the appellant's disclosures on the investigative process. [35] The decision maker stated that they did not accept the Appellant’s rationale for the conduct, which was a conclusion open to them on the admitted facts. Whilst the Appellant may have been distressed after being informed of her suspension, I note that this is not unusual for employees in similar situations who are often subject to confidentiality directions. Such distress does not override the requirement to comply with the directions. [36] The decision demonstrates that the decision maker had regard to the submission that consideration should be given to the Appellant’s overall work record and longstanding -- 18 of 20 -- 19 employment, that no one was harmed by the Appellant’s actions, and that the investigation was not prejudiced. [37] The Respondent outlined the timeframe summarising the delay relating to the discipline process. It appears that a substantial reason for the delay related to the broader matter being referred to the Crime and Corruption Commission on 20 July 2021 and again on 8 March 2022 due to CQHHS not receiving a response from the CCC, before being referred back to the Respondent on 10 March 2022. The decision regarding disciplinary action was sent to the Appellant on 5 April 2022. Whilst the delay was not a consequence of tardiness on the part of the Respondent, the process resulted in the Appellant enduring a lengthy suspension following the incident on 14 July 2021. I accept the QNMU’s submission that the suspensions had been a ‘distressing and overwhelming’ experience and the severity of the penalty should take this experience into account. [38] The direction to maintain confidentiality when suspended was a lawful and reasonable direction. The decision maker accepted the Appellant’s submissions that the contravention of the direction in disclosing the suspension to her supervisor was a consequence of the Appellant becoming distressed following her suspension. Whilst this conduct was still a contravention of the direction, it is perhaps understandable that the Appellant felt that she needed to tell her supervisor that she was leaving the workplace. The decision maker considered this submission and informed the Appellant in the decision that she was “prepared to give [her] the benefit of the doubt in relation to your supervisor”. This was a reasonable determination in the circumstances. [39] The Appellant’s decision to discuss the matter with two other employees on shift in front of a resident is a more serious contravention. One of the reasons that a confidentiality direction is regularly given in circumstances such as these is to protect potential witnesses who may be subject to protections under the Public Interest Disclosure Act 2010 (Qld), along with the integrity of a future investigation process. Whilst the Appellant’s conduct may not have had an impact on these processes, that does not make the conduct trivial. It was fair and reasonable for the decision maker to determine that such conduct warranted a disciplinary penalty. It is important, however, that such a penalty is proportionate to the seriousness of the conduct. [40] The decision demonstrated consideration of the appellant’s financial circumstances, outlined in the following terms – For completeness, I have considered the financial impact that a temporary reduction of your remuneration would have on your financial budget, including that you are the sole income earner in your household. I have considered whether there is any alternative action I could take in relation to your conduct. I do not consider the imposition of an alternative penalty, including a reprimand or lesser monetary penalty is appropriate in the circumstances where you have engaged in inappropriate conduct after being issued a lawful direction. I do not consider any other alternative outcome sufficiently addresses the concerns I have in relation to your inappropriate conduct. -- 19 of 20 -- 20 [41] The disciplinary penalty imposed is the temporary reduction of the Appellant's remuneration level from Nurse Grade 1, Band 1, Pay Point 6 to Nurse Grade 1, Band 1, Pay Point 5 for a period of three months. Although I am satisfied that the decision maker considered the Appellant's financial circumstances, I am not satisfied that the disciplinary penalty is proportionate to the substantiated conduct. In my view this penalty is not fair and reasonable. [42] The Appellant is 84 years old and there is no evidence of previous disciplinary history throughout her long history of employment with the Respondent. As a worker in the lowest classification level who is the sole wage earner in her household, a disciplinary penalty of the type proposed has a significantly harsher impact than it may have on others. In addition, the Appellant has already suffered significant distress following her lengthy suspension prior to her return to normal duties on 24 April 2023. [43] It is my view that a reasonable disciplinary penalty in all of the circumstances is a reprimand. Order [44] I make the following order: 1. The appeal is allowed. 2. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016, the decision appealed against is set aside and substituted with a decision that the disciplinary action to be imposed under s 93 of the Act is a reprimand. -- 20 of 20 --