Baker v State of Queensland (Queensland Health) [2024] QIRC 4

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION PARTIES: CASE NO: PROCEEDING: DELIVERED ON: HEARD AT: MEMBER: Baker v State of Queensland (Queensland Health) [2024] QIRC 4 Baker, James (Appellant) v State of Queensland (Queensland Health) (Respondent) PSA/2023/200 Public Service Appeal – Appeal against a disciplinary decision 8 January 2024 On the papers Pidgeon IC ORDERS: 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision regarding Allegations two and three is set aside. The matter is returned to the decision-maker with a copy of the decision on appeal for further consideration. CATCHWORDS: PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SECTOR APPEAL – appeal against a disciplinary finding decision – where the appellant is employed by the respondent as a clinical nurse – where it is alleged that the appellant is guilty of misconduct – where the appellant appeals the substantiation of allegations two and three – where the matter is returned to the decision-maker with a copy of the decision for further consideration LEGISLATION AND OTHER INSTRUMENTS: Industrial Relations Act 2016 (Qld) ss 562B, 562C Public Sector Act 2022 (Qld) ss 85, 86, 91, 129, 131, 133 Public Service Act 2008 (Qld) s 137 (repealed) -- 1 of 20 -- 2 Reasons for Decision Introduction [1] Mr James Baker (‘the Appellant’) has been employed by the State of Queensland (Queensland Health) since 29 April 2019. He is currently a Clinical Nurse within the Community Care Team (‘CCT’), Nambour Adult Community Mental Health Service, Sunshine Coast Hospital and Health Service (‘SCHHS’). [2] On 29 November 2022, the SCHHS received a complaint from a member of the public (‘the complainant’) alleging, in summary, that Mr Baker behaved inappropriately towards the complainant at their place of work in the vicinity of Noosaville.1 [3] On 1 December 2022, Mr Brett Heslop, Director Nursing Community, Mental Health and Specialised Services (‘MHSS’), and Ms Alison Noble, Team Leader CCT North, met with Mr Baker and notified him of the complaint received. SCHHS says that during this meeting, Mr Baker confirmed an interaction took place on 29 November 2022, in a private non-work-related capacity whereby he travelled to the complainant’s place of work, [redacted]2 in Noosaville, in a Queensland Health fleet vehicle during his rostered working hours.3 [4] On 9 December 2022, Mr Baker was placed on alternative duties pursuant to s 137(3) of the now repealed the Public Service Act 2008 (Qld), effective immediately. [5] In a letter dated 15 March 2023, Mr Richard Spence-Thomas, Acting General Manager, MHSS, invited Mr Baker to respond to the allegations within 14 days. Following an extension to provide a response and a reissuing of the show cause notice including an amended ground for discipline, a response to the first show cause notice was received by SCHHS on 9 June 2023. [6] Mr Baker appeals the decision of Mr Spence-Thomas dated 29 August 2023, making disciplinary findings against Mr Baker. In particular, the decision-maker found the following allegations to be substantiated: 1. Allegation one It is alleged that on 29 November 2022, during the period 1525 – 1600 hours, following completion of a home visit to a Health Service client in vicinity Pomona, you behaved inappropriately towards a member of the public (‘the complainant’), when you: • drove to and attended the complainant’s place of work, specifically [redacted], Noosaville utilising Queensland Government vehicle [redacted]; and/or 1 Respondent’s submissions filed 22 November 2023, [5]; Attachment 2. 2 I have determined to suppress the name of the complainant’s place of work. 3 Respondent’s submissions filed 22 November 2023, [6]; Attachment 3. -- 2 of 20 -- 3 • made inappropriate comments of a threatening manner towards the complainant; and/or • physically acted and/or interacted with the complainant in a manner that may be considered as violent and/or threatening. 2. Allegation two It is alleged that on 29 November 2022, you utilised Queensland Government vehicle [redacted] for personal use during your rostered shift without appropriate authorisation. 3. Allegation three It is alleged on 29 November 2022, you failed to conduct yourself in a professional manner when you were paid for time not worked during your rostered shift between 1400 hours – 1545 hours. [7] The decision-maker provided Mr Baker with seven days to show cause as to why the proposed disciplinary action of the termination of his employment should not be taken. [8] Mr Baker subsequently filed a dispute at the Queensland Industrial Relations Commission (‘the QIRC’). During that process, it was identified that a public sector appeal was the appropriate avenue for Mr Baker to appeal the decision. The parties agreed to allow Mr Baker an extension to file his appeal notice, which he did on 9 October 2023. The dispute was discontinued. [9] Mr Baker’s appeal notice says that he wishes to appeal the proposed decision to terminate his employment based on the following: 1. Did not have an opportunity to respond to the initial complaint face to face. 2. From my perspective the complaint was a code of conduct issue but the punishment is too harsh given the incident, mitigating circumstances and that allegations 2 and 3 are unfounded and inaccurate. I believe it should have been a disciplinary action such as education, competency training, supervision and a written warning. 3. The length of time the process has taken has been protracted and caused me unnecessary distress. 4. I have been working in Mental Health for over 23 years with no disciplinary action brought against me. [10] At the outset, I must make it clear that at this stage, no decision on discipline has been made. Therefore, the appeal is against the disciplinary findings and the grounds for discipline. [11] With regard to the finding that Allegation one is substantiated, Mr Baker submits that he wishes to ‘stand by my last response dated 28/09/2023’. Mr Baker does not attach the document he refers to, but as he makes no submissions regarding Allegation one and -- 3 of 20 -- 4 specifically states that he is appealing against ‘allegation two and three which appear to be motivated by an ulterior purpose which is to aggravate the circumstances alleged in allegation one’, I am of the view that Mr Baker accepts the finding that Allegation one is substantiated while disagreeing with proposed discipline action identified by the decision-maker.4 [12] Therefore, my focus in this appeal is on the matters listed in Mr Baker’s appeal notice including procedural matters and the substantiation of Allegations two and three. Is the Appellant entitled to appeal? [13] Section 131 of the Public Sector Act 2022 (Qld) (‘the PS Act’) lists various categories of decisions against which an appeal may be made. Section 131(1)(c) provides that an appeal may be made against a disciplinary decision. [14] Section 129 of the PS Act relevantly states: 129 Definitions for part … disciplinary decision means a decision under a disciplinary law to discipline— (a) a person (other than by termination of employment), including the action taken in disciplining the person; or (b) a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment. [15] Section 133 of the PS Act explains who may appeal a disciplinary decision: 133 Who may appeal … (c) for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive [16] I am satisfied that the decision is one that may be appealed against and that the appeal was lodged with the required time. Appeal principles [17] Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the IR Act’) provides that the appeal is to be decided by reviewing the decision appealed against and that 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'. 4 Appellant’s submissions filed 31 October 2023, 1. -- 4 of 20 -- 5 [18] Relevantly to this matter, s 562B(4) of the IR Act states that: For an appeal against a promotion decision or a decision about disciplinary action under the Public Sector Act 2022, the commission — (a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but (b) may allow other evidence to be taken into account if the commission considers it appropriate. [19] Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal. [20] A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker. [21] In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may: (a) confirm the decision appealed against; or … (c) For another appeal-set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate. [22] I will approach this appeal by addressing each of the issues raised by Mr Baker in his appeal notice and then I will turn to the decision to substantiate Allegation two and Allegation three. The decision letter [23] The disciplinary finding decision of 29 August 2023, subject of this appeal, was preceded by a show cause process as to why disciplinary findings should not be made against Mr Baker. Through his lawyer, Mr Baker took the opportunity to respond to the allegations. [24] In the 29 August 2023 disciplinary finding letter, Mr Spence-Thomas wrote that he considered general submissions made by Mr Baker’s lawyers in their responses of 6 April 2023 and 9 June 2023. In essence, those submissions included that: • Mr Baker is a dedicated public sector employee who has worked in the field for the past 20 years, including the past four years in the employ of the Respondent, without any disciplinary findings or actions being made against him; • The allegations refer to an isolated and out-of-character incident taking place over a period of 20 to 25 minutes on a single day; -- 5 of 20 -- 6 • Mr Baker has experienced significant personal and workplace stressors and he has taken steps to address this; • Mr Baker is deeply remorseful and embarrassed. He takes full accountability ‘to the extent admitted’; • Mr Baker has already received a written reprimand on 9 December 2022 and since then, his duties have been changed and reduced; • On the other hand, the Appellant says that the Respondent ‘has displayed a complete want of prosecution causing significant prejudice to [Mr Baker] as he remains in disciplinary limbo’; • Mr Baker is entitled to positive performance management prior to disciplinary action being taken; • It would be inappropriate and unreasonable to amend the ground for discipline with respect to allegation one; • The proposed amendment is trivial, of a technical nature, and would disproportionately affect Mr Baker in that he would ‘bear the cost of the Health Services [sic] purported mistake’; • Time has lapsed between the 29 November 2022 incident and the decision-maker’s show cause correspondence of 15 March 2023; • A fresh show cause process would breach Discipline Directive 05/23 cl 4.10; • The Respondent should rely on its initial ground for discipline; and • A further response is not ‘fair, necessary or appropriate’. Preliminary matters Administrative error and principles of natural justice [25] Before addressing the allegations themselves, Mr Spence-Thomas responded to some of the general submissions made by Mr Baker’s lawyers. [26] Firstly, Mr Spence-Thomas acknowledged that Mr Baker’s lawyers brought an administrative error to the attention of the Respondent in that the show cause letter identified the wrong disciplinary ground. The Respondent subsequently reissued the show cause letter with the correct disciplinary ground. -- 6 of 20 -- 7 [27] Mr Spence-Thomas further acknowledged that this caused further delay to the disciplinary process, but said that the provision of further time for Mr Baker to respond to the amended ground and providing him with the opportunity to view the evidence available to the decision-maker ameliorated this. [28] The decision-maker considered the Respondent’s handling of the administrative error to be ‘reasonable and consistent with the principles of procedural fairness’, ‘fair and transparent’, and ‘consistent with clause 4.10 of the Discipline Directive’. Positive Performance Management Principles [29] In response to Mr Baker’s assertion that he is entitled to positive performance management (‘PPM’) prior to any disciplinary action being taken in accordance with the PS Act ss 85 and 86, Mr Spence-Thomas said that this did not apply to Mr Baker’s circumstances. [30] According to the decision-maker, s 86 of the PS Act prohibits disciplinary action in the first instance for performance matters, not conduct matters, which is the subject of the allegations put to Mr Baker. While s 85(1)(b) of the PS Act extends PPM principles to personal conduct, the delegate can commence a disciplinary process with regard to a single occurrence of conduct where reasonable grounds exist. [31] The decision-maker reiterates that s 91 of the PS Act establishes that the chief executive may discipline an employee if they are reasonably satisfied that a discipline ground has been established. Mr Spence-Thomas confirms he holds the relevant delegation in accordance with the Health Service Human Resources sub-delegations Manual dated 9 December 2022. [32] Ultimately, Mr Spence-Thomas concludes that he is not obliged to apply PPM principles before commencing the disciplinary process. Alternative duties [33] Mr Spence-Thomas clarifies that the Respondent’s 9 December 2022 correspondence was not a written reprimand. He confirms no disciplinary action has been taken against Mr Baker. [34] Rather, the 9 December 2022 correspondence from Ms Tanya Grant, then Acting Chief Operating Officer (‘COO’), informed Mr Baker that he had been placed on alternative duties. Mr Baker’s normal workplace duties continued in a clinic-based setting. However, Mr Baker’s alternative duties would not involve undergoing home visits or operating a Queensland Health Fleet vehicle pursuant to s 101(3) of the PS Act. -- 7 of 20 -- 8 [35] Mr Spence-Thomas confirms that Mr Baker’s alternative duties were reviewed by Ms Joanne Shaw, COO. Ms Shaw explained to Mr Baker in her correspondence of 13 March 2023 that the alternative duties would remain in place until 2 June 2023, at which point they would be reviewed by the appropriate authorised delegate. [36] Mr Spence-Thomas says that alternative duties are not a punitive measure. He says it is an appropriate and reasonable measure where concerns are raised in relation to risks associated with alleged inappropriate conduct. Alternative duties are considered where alternative risk-mitigation strategies can be utilised as a substituted to suspension. In these circumstances, the COO determined that direct supervision and alternate working locations were appropriate risk mitigation strategies. Allegation one [37] With the preliminary matters having been addressed, the decision-maker turned to considering the allegations made against Mr Baker. As noted above, Mr Baker’s appeal notice and submissions make clear that he is appealing against Allegations two and three. Therefore, I will not consider the disciplinary findings regarding Allegation one. Allegation two [38] Mr Spence-Thomas sets out Mr Baker’s submissions in relation to Allegation two.5 I will not reproduce that summary of submissions here and I note that Mr Baker’s submissions in this appeal set out below from [45] to [55] and [58] to [68] largely reflect and expand upon his responses set out by Mr Spence-Thomas. However, I note in particular that: • Mr Baker admitted to unauthorised personal use of the work vehicle only as it related to attending [redacted]; • The total period that elapsed during the visit to Noosa Civic and [redacted] was 25 minutes; • The attendances at Noosa Civic and [redacted] were undertaken in lieu of his entitled break time and no other break time or rest pauses were taken that day; • In mitigation regarding the attendance at [redacted], he was not wearing a uniform and his work vehicle had no identifying symbol other than its registration number. 5 Letter from Mr Richard Spence-Thomas to Mr Baker dated 29 August 2023, 8-9. -- 8 of 20 -- 9 • Mr Baker intended to get a statutory declaration regarding his COVID-19 leave signed at Noosa Civic however the queue was too long and in corroboration of this, refers to his unwitnessed statutory declaration dated 29 November 2022. • The attendance at Noosa Civic was for an authorised purpose as he used the bathroom and washed his hands. • Mr Baker’s duties are community based and it is not reasonably practicable to obtain approval from the appropriate delegate to use a public bathroom. • Mr Baker rejects the allegation that travel between clients’ homes is classified as private use as he does not perform substantial duties at those sites each day and visitations differ from day to day. [39] Mr Spence-Thomas says that he has carefully considered all of the material available to him including Mr Baker’s submissions. Mr Spence-Thomas informs Mr Baker that Allegation two is substantiated on the balance of probabilities and then sets out his reasons. I will not list all the reasons here and I note that the Respondent’s submissions below from [69] to [76] address the finding that Allegation two is substantiated. [40] Mr Spence-Thomas notes Mr Baker’s admission that he used the vehicle in an unauthorised and inappropriate manner and points to the relevant standard and procedure regarding fleet vehicles. Mr Spence-Thomas states that Mr Baker did not have authority to use the vehicle in a private manner and that there was no evidence that such authority was sought by his line manager. Mr Spence-Thomas says that the location of Noosa Civic and [redacted] was a ‘significant departure’ from a reasonable and acceptable travel plan and says that at the commencement of a standard working day, Mr Baker would have interacted with his manager or team leader and could have discussed his personal needs and sought guidance or authority to attend a Justice of the Peace (‘JP’). [41] Mr Spence-Thomas describes the availability and locations of Justices of the Peace within a short walking distance of Mr Baker’s substantive place of work and says that there were more convenient and reasonable options available to Mr Baker to seek the services of a Justice of the Peace. Mr Spence-Thomas also says that a ‘typical brief’ provided to Mental Health employees performing visits to clients in the community involves identification of ‘local public toilets and parks in which it may be appropriate to take breaks’. [42] Mr Spence-Thomas notes that as community mental health nurses do not wear a uniform to perform their role, the lack of a uniform does not prevent Mr Baker from being identified as a Queensland Government or public sector employee. -- 9 of 20 -- 10 [43] Mr Spence-Thomas again notes Mr Baker’s characterisation of his attendance at [redacted] as private and non-work-related and says he does not accept that Mr Baker’s attendance at Noosa Civic was for an authorised break purpose and instead finds that the reason for attending was for an unauthorised personal purpose. [44] Mr Spence-Thomas does not accept that the period of time Mr Baker was at Noosa Civic and [redacted] was in his entitled break time and refers to calculations regarding time set out in Allegation three. However, Mr Spence-Thomas finds that even if the events took place during Mr Baker’s entitled break time, it does not lessen the inappropriateness and/or seriousness of using a Queensland Government vehicle for a personal purpose without authorisation. [45] Mr Spence-Thomas says that he does not consider the medical information and identified personal and workplace derived stressors put forward by Mr Baker to be persuasive or sufficient mitigating circumstances to excuse Mr Baker’s conduct. [46] Mr Spence-Thomas says that he considers Mr Baker’s actions to be intentional and contrary to the relevant standard and procedure, concluding that Mr Baker is guilty of misconduct. Allegation 3 [47] For the reasons set out below at [100] and [101], I do not intend to address Mr Spence- Thomas’s summary of Mr Baker’s submissions or the reasons for Mr Spence-Thomas’s disciplinary finding with regard to Allegation three. Mr Baker’s reasons for appeal and the submissions of the parties Reason for appeal: Mr Baker did not have the opportunity to respond to the initial complaint face-to-face. [48] Mr Baker says that had there been an effort to communicate with him face-to-face, Allegations two and three would not have been made. I note that it appears that there was a conversation between Mr Heslop, Ms Noble and Mr Baker on 1 December 2022 during which Mr Baker charactered his attendance at [redacted] as ‘private non-work related’. When considering the allegations and events of 29 November 2022 as a whole, I find it unlikely that a face-to-face conversation would have led to Allegations two and three being set aside without the provision of a formal opportunity to show cause. -- 10 of 20 -- 11 Reason for appeal: From Mr Baker’s perspective, the complaint was a Code of Conduct issue but the punishment is too harsh given the incident, mitigating circumstances and that Allegations two and three are unfounded and inaccurate. Mr Baker believes it should have been a disciplinary action such as education, competency training, supervision and a written warning. [49] As has been discussed above, while Mr Baker was asked to show cause why his employment should not be terminated, no decision has yet been made about disciplinary action. The Respondent confirms that the disciplinary process is stayed while the appeal is underway. [50] While it is not specifically set out in Mr Baker’s submissions, for completeness, I note that it was open to Mr Spence-Thomas to communicate the matters set out at [29] to [32] regarding the application of the positive performance management principles. This matter relates to conduct and not performance and there was therefore no requirement for Mr Spence-Thomas to first apply positive performance management principles before commencing a disciplinary process. Reason for appeal: Mr Baker thinks the length of time the process has taken has been protracted and caused him unnecessary distress. [51] The time taken to consider this matter does seem excessive given the nature of the allegations. However, I understand that the initial process involved a decision to place Mr Baker on alternative duties pending the issuing of the first show cause notice. It appears that Mr Baker’s legal representatives requested an extension of time to respond to the first show cause notice and that this was granted. After the receipt of Mr Baker’s response, an error was found in the first show cause notice. This led to an updated show cause notice being issued and a request for a response by 9 June 2023. [52] I agree that the process has been protracted and I understand Mr Baker’s submission that this has caused him distress. However, I accept that following the decision to place Mr Baker on alternative duties, there was a period in which the Respondent was undertaking its own processes to draft the allegations and particulars, that it was reasonable for Mr Baker’s lawyers to seek an extension to respond and that this request was granted. Once the Respondent identified the error in the first show cause notice, it was incumbent upon the Respondent to reissue the letter and correct the error. It was reasonable to provide Mr Baker with the opportunity to provide a response. [53] I do not find that the length of time the process has taken serves to make the outcome not fair or reasonable. [54] I note that the result of this appeal is that the decision is set aside in part and returned to the decision-maker with a copy of these written reasons. If the decision-maker determines to pursue Allegations two and three, this should be done in a timely manner given the -- 11 of 20 -- 12 extensive period of time which as already elapsed since 29 November 2022 when the events took place. Reason for appeal: Mr Baker has worked in Mental Health for over 23 years with no disciplinary action brought against him. [55] There are no further submissions made regarding this reason for appeal. Mr Baker’s history of having no disciplinary action brought against him may be a relevant matter for the decision-maker to consider when determining if any action should be taken in relation this matter. Reason for appeal: Allegations two and three are unfounded and inaccurate. Allegation two [56] Allegation two is that on 29 November 2022, Mr Baker utilised Queensland Government vehicle [redacted] for personal use during his rostered shift without appropriate authorisation. [57] The updated first show cause notice issued on 30 May 2022 sets out the particulars of the allegation: Particulars for Allegation two: (a) Particulars a)-n) of Allegation one [see pages 1-3 above].6 (b) You most recently completed the Driver Safety online course on 6 August 2019 [Attachment 15]. (c) Further to particular l) of Allegation one [see page 3, above and refer to Attachment 12], on 1 December 2022 you allegedly advised Mr Heslop and Ms Noble that: • you travelled to Noosa Civic after a Home Visit to see a Justice of the Peace to witness a personal document; and/or • when you were in the Noosa Civic area, you saw the distinctive vehicle of the complainant and reacted. (d) Particular m) to Allegation one [see pages 3-4, above, and refer to attachment 13, page 2 and 5], with specific emphasis noted to the following components: 6 I have reviewed those particulars and note that they refer to Mr Baker’s employment with the Health Service, his position and role description, that he was subject to the Code of Conduct at the relevant time, that he completed Code of Conduct training, the logbook identifies that he was using the relevant vehicle during the relevant time, the home visits which were listed in Mr Baker’s diary for the relevant date, the complaint submitted by a member of the public regarding the incident subject of allegation one, the advice Mr Baker provided regarding the matter at the meeting with Mr Heslop and Ms Noble, the relevant parts of the motor vehicle fleet standard and the fleet vehicle usage procedure. -- 12 of 20 -- 13 3.6 Safe vehicle use and driving behaviour 3.6.4 Employees shall not use vehicles in an unauthorised or inappropriate manner. Unauthorised use of Department of Health vehicles may result in disciplinary action. 3.14 Private use of Official vehicles 3.14.1 Authorised drivers shall obtain approval from the appropriate delegate for any private or non-official use of an official vehicle. (e) Particular n) to Allegation one [see page 4 above, and refer to Attachment 14 pages 1-2], with specific emphasis noted to the following components: • All staff are required to read and understand this procedure and the Queensland Health, Motor vehicle fleet – Management and use policy and agree to abide by the guidelines contained including: • Private use of fleet vehicles is not permitted. If an employee performs substantial duties at multiple sites each day, the travel is considered private.7 (f) There is no evidence available demonstrating that you made a request to an appropriately authorised delegate to use Queensland Government Vehicle [redacted] for a personal purpose. Mr Baker’s submissions – Allegation two [58] Mr Baker rejects that his conduct constitutes misconduct as alleged and defined in s 91(5)(a) of the PS Act as he says that it was in no way a ‘deliberate departure from accepted standards’. [59] Mr Baker says that on the morning prior to the incident, he had a discussion with his team leader who advised that a statutory declaration was required to claim COVID-19 leave in lieu of sick leave which had already been taken. [60] Mr Baker says that he was unable to locate two members of staff who are JPs and that the local JP in Nambour had closed at midday. Mr Baker said that he was aware that there was a JP available in the afternoon at Noosa Civic. Mr Baker says that the trip to Noosa Civic involved a ‘5 km detour’ and that he planned to get the paperwork completed in between home visits. [61] Mr Baker submits that he had a busy and stressful morning with no breaks taken and that he had a meeting with his team leader about handing in his resignation over workload, 7 I note that the Fleet vehicle usage procedure provides an example regarding this point, ‘For example: If an employee works between two locations, each is classed as ‘regular place of employment’ therefore the travel from the hospital where the vehicle is collected to the alternate worksite, is classed by the Australian Taxation Office (ATO) as travelling ‘to work’ and therefore private travel and will incur Fringe Benefit Tax (FBT). -- 13 of 20 -- 14 ongoing fatigue and stress. Mr Baker says that he was not keen on using toilet facilities in Pomona as suggested by Mr Spence due to the rough and unhygienic nature of them and the COVID-19 risks at the time. Mr Baker claims he was aware that the toilet facilities at Noosa Civic were cleaned regularly and were of a good standard. Mr Baker says that when he arrived at Noosa Civic and saw the length of the queue, it became clear to him that he would not be able to complete the task within his break time and so he used the public toilets and left. [62] Mr Baker says that he was of the understanding, having worked in community mental health nursing for over twenty years, that it is expected that clinicians who work autonomously will manage their own time and caseloads. Mr Baker says that it is common practice for persons in a role similar to his to perform brief personal tasks in isolated occasions without formal authority and says this is especially the case with respect to obtaining a work-related document. Mr Baker says that he has confirmed with his team leader that clinicians do not have to notify her if break times vary and that the time lapsed while he visited Noosa Civic ‘did nowhere near exceed break times’ he is entitled to. [63] Further to the above submission, Mr Baker says that there is a flexible culture in his team and ‘toil’ is not formally logged but taken on trust and often taken for personal tasks. Mr Baker says he has never witnessed an entry on the mileage form under the personal use column despite this occurring regularly. Mr Baker says he has spoken with administration staff about this and that he was been advised that after a check of the last five years’ mileage forms, there have been no personal use entries. [64] Mr Baker says that he was of the honest and reasonable belief that obtaining a statutory declaration for work purposes was a work-related activity, just as having the COVID-19 vaccination was. Mr Baker says that management requested the paperwork to facilitate his COVID-19 leave request and as such, he did not seek or obtain his team leader’s permission to have the document witnessed by a JP. [65] Mr Baker says that even if it is found that his conduct was of a personal nature, it was not a deliberate departure from the accepted standard. Mr Baker maintains that collecting work-related documentation and using a public toilet both fall within accepted standards. [66] Mr Baker says that the detour to Noosa Civic off the Noosa-Cooroy Road takes only five minutes between client residences in Pomona and Eumundi and was therefore of minimal disturbance to his travel plan. [67] Mr Baker says that he has never been ‘subject to any brief’ on public toilets which must be used. Mr Baker says that given the large catchment area of his case load, the idea of having to utilise particular toilets is ‘frankly ridiculous’ and that he could regularly travel in excess of 200 km in a day and therefore the approximate 5 km distance to Noosa Civic is not a ‘significant departure’ as claimed by the Respondent. -- 14 of 20 -- 15 [68] Mr Baker says that in all the circumstances, there are no misconduct grounds for a disciplinary finding in relation to allegation two and that it is ‘disingenuous to allege misconduct in an official capacity while stating that the relevant conduct was of a personal nature’. Respondent’s submissions – Allegation two [69] Firstly, SCHHS refers to the Department of Health Standard QH-IMP-270: 2015 – Motor vehicle fleet – Driver (‘the Standard’) which identifies responsibilities and accountabilities in relation to drivers of Queensland Government vehicles and stipulates that vehicles are not to be used in an unauthorised and/or inappropriate manner and that private use must be authorised by the appropriate delegate. SCHHS says that Health Service Procedure 890 – Fleet vehicle usage (‘the Procedure’) sets out that private use of fleet vehicles is not permitted. [70] In addition, SCHHS submits that Mr Baker completed the Driver Safety online course on 6 August 2019 and that the course outlined whole-of-government and department- specific policies and procedures applicable when using a Queensland Government vehicle and that these policies and procedures underpin the Code of Conduct for the Queensland Public Service which applies at all times when using a Queensland Government vehicle. [71] SCHHS says that as a public sector employee, the Standard and the Procedure both applied to Mr Baker on 29 November 2022. [72] Further, SCHHS submits that Health Service records do not indicate that Mr Baker had been granted authority to use the vehicle in a private capacity by the appropriate delegate, nor is there evidence available to indicate that Mr Baker attempted to seek the appropriate authority. [73] SCHHS draws attention to contradictory statements made by Mr Baker in his submissions. SCHHS points to Mr Baker’s submissions that his attendance at Noosa Civic was in a personal capacity and that he is at liberty to perform everyday tasks during his break times given the nature of his work and that break times vary. SCHHS says that in direct contradiction to this, Mr Baker states that he was of the reasonable and honest belief that obtaining a statutory declaration for work purposes was a work-related activity. [74] SCHHS says that in circumstances where Mr Baker asserts that his attendance at [redacted] was a private non-work-related matter, it was reasonably open for Mr Spence- Thomas to conclude that the detour to Noosa Civic was in a personal capacity. SCHHS further submits that it was reasonably open for Mr Spence-Thomas to conclude Mr Baker’s actions were not aligned to the requirements of the Procedure and Standard when utilising a Queensland Government vehicle for personal use. -- 15 of 20 -- 16 [75] SCHHS says that it was also reasonably open for Mr Spence-Thomas to substantiate findings on Allegation two to determine that Mr Baker is responsible for inappropriate conduct in an official capacity pursuant to section 91(1)(b) of the Act within the meaning of section 91(5)(a) of the Act. [76] The Health Service seeks for the QIRC to confirm the decision appealed against in relation to Allegation two on the basis it is fair and reasonable in the circumstances. Mr Baker’s submissions in reply: Allegation two [77] Mr Baker says that his main defence in relation to Allegation two continues to be that he believes the act of getting the statutory declaration was a work-related task because: • It was requested during work hours on the day of the incident by my Team Leader with some urgency • It was required to get access to entitled pandemic leave, as per work policy • It was to be returned to work • I would not have needed to attend Noosa Civic if I did not require a Statutory Declaration, which was specifically requested by my employers. [78] Mr Baker says that his submission that due to the queue, he would not be able to complete the task within his break time and so used the public toilet and left, does not demonstrate that the trip to Noosa Civic was not work related. Mr Baker argues that this submission demonstrates a willingness to forgo his break to complete a work-requested or related task and that it demonstrates that he was not willing to abuse his break times by not waiting. [79] Mr Baker denies that his submission that he is at liberty to perform everyday tasks during break times and that it is an accepted work practice to determine break times around consumers’ needs is an admission that his travel to Noosa Civic was for personal use. Mr Baker reiterates that staff are autonomous and manage their break times accordingly and will undertake some tasks during their break times if these are tasks that can only be done during office hours. [80] Mr Baker says that he is not sure why he would have requested permission from the team leader to use the vehicle for personal use when he did not believe that the travel to Noosa Civic was for personal use. Mr Baker says that he has discussed the matter with his team leader who was not aware that there was a ‘no personal use’ policy. -- 16 of 20 -- 17 Consideration: Allegation two [81] When considering the submissions of the parties, I requested a copy of the updated first show cause notice to understand if the particulars of Allegation two were specific to the journey to Noosa Civic or included the use of the vehicle to stop at [redacted] where the incident related to Allegation one took place. This is because Mr Baker’s submissions were focused on the attendance at Noosa Civic. It seems clear that the allegation relates to both the admitted conduct in utilising the vehicle inappropriately to visit [redacted] and also the visit to Noosa Civic. I understand that Mr Baker was focused on the particulars of the allegation with regard to Noosa Civic given he has admitted the inappropriate use of the vehicle to attend [redacted]. [82] While I understand the relevant policy as it relates to travel between the place of picking up the vehicle and performing substantial duties at multiple sites each day states that the travel between those sites is considered ‘private’, Mr Baker’s submissions indicate that neither he, nor his colleagues, have been required to log journeys between home visits as ‘private’ travel. If Mr Baker understood that his detour to Noosa Civic during his break between home visits was not ‘private’ travel but related to taking his designated break and seeking a clean public toilet to use, it would explain why he did not seek authorisation to do this. [83] While Mr Baker attended Noosa Civic during a break, I accept his submission that he thought that while he was there, he would take the opportunity to get his statutory declaration regarding COVID-19 leave witnessed by a JP. However, there is no evidence that Mr Baker was told that the statutory declaration had to be submitted on the day in question, and Mr Baker’s own submission is that there are JPs at his workplace and nearby, but they were not available on that day. [84] I am not satisfied on the available material that the custom and practice of Mr Baker’s workplace meant that Mr Baker was prohibited from taking his break at or seeking a public toilet at a shopping centre. I am also not satisfied that Mr Baker was required to seek approval for the timing of his break or where he would take the break. [85] While I accept that Mr Baker had undergone training regarding fleet vehicle use, his submission that there was no practice of community mental health officers making entries for private travel in the logbooks situated in the vehicles means that I am not persuaded on the balance of probabilities that he deliberately departed from accepted standards in this regard. [86] I have no difficulty with a finding that the use of the fleet vehicle to attend at [redacted] was without authorisation. However, I have more difficulty with accepting that this was the case regarding the attendance at Noosa Civic and I do not find that the reasons set out in the letter of 29 August 2023 persuade me that it was fair and reasonable to substantiate Allegation two as currently constituted. -- 17 of 20 -- 18 [87] Given the seriousness of the substantiated Allegation one, it may be that it would have no bearing on the eventual outcome of this disciplinary matter if the particulars regarding the trip to Noosa Civic were to be removed from Allegation two. The use of the fleet vehicle to facilitate attendance at [redacted] was not authorised and was entirely inappropriate. However, I am of the view that Allegation two should be set aside and returned to the decision-maker to undertake further investigations before either narrowing the particulars to focus only on the [redacted] visit or providing more particulars to Mr Baker as to what was required of Mr Baker with regard to: stopping at a shopping centre during his break time to use the toilet, and also with regard to seeking authorisation to do this, and logging private use of the vehicle for trips throughout the day in the logbook. Further particulars in this regard would better enable Mr Baker to understand the allegation and would enable him to respond to the possible grounds for discipline identified in the show cause letter. [88] Returning the decision to the decision-maker for further consideration will enable the decision-maker to undertake investigations as to what the ordinary arrangements for Mr Baker and other community mental health nurses are (and indeed, what briefing had taken place or instructions had been given) as they pertain to locations deemed appropriate for taking designated breaks or locating public toilets. It will also enable the decision-maker to determine with certainty what instructions have been specifically given to Mr Baker and his colleagues about the appropriateness or otherwise of visiting a shopping centre toilet or undertaking personal errands during a break taken between home visits and what would constitute an unacceptable departure from the direct route between two locations to stop somewhere for a break. The decision-maker could also seek information to confirm whether the travel to various homes to undertake visits throughout the course of the day or week is of a nature that falls within the description of ‘’substantial duties at multiple sites each day’ and whether such travel should be logged as private and triggers a payment of Fringe Benefits Tax for the Respondent. Allegation three Mr Baker’s submissions: Allegation three [89] Mr Baker says that he entirely rejects the Respondent’s timeline of events as they are incorrect and that he was not absent from work for 105 minutes as alleged. Mr Baker says that the timeline of events is as follows: (a) Due to be consumers home at 13.00 hours, but left clinic at 13.30 due to running late with meeting team leader etc. Refer to attachment three, logbook for vehicle (completed prior to leaving) showing I left the clinic at 1330 on 29/11/22 and did not return till 1650, please note I officially finish my shift at 16.30 hours; (b) Arrived at consumers home in Pomona at 14:00 hours and left at approximately 15:00 hours. Refer to attachment four, email from consumers mother confirming my arrival and departure times on 29/11/22; -- 18 of 20 -- 19 (c) Arrived at Noosa Civic at around 15:20 and left after short toilet break approximately 1524; (d) Drove past and stopped at [redacted] at 15:25 and left premises at 15:32; (e) I arrived at my next consumers residence approximately 15:47 and left at around 16:32; (f) I arrived back to my place of employment and logged my arrival at 16:50. Refer to attachment three. [90] Mr Baker clarifies that the travel time between the relevant residences in Pomona and Eumundi is 25 minutes, not 15 minutes. Mr Baker says that as a result, he was absent from work-related duties for a period of around 20 minutes and not 105 minutes as alleged. Mr Baker says that the length of the stays at the consumers’ homes were 60 minutes and 45 minutes respectively and not 30 minutes as alleged. Mr Baker says that this is evidenced by computer records and a statement from a consumer’s carer. [91] Mr Baker says that his current team leader has checked and clarified the computer entry which clearly shows the length of time present at the consumers’ homes and that the entries reflect longer stays than alleged by the Respondent. Mr Baker asks the Respondent to particularise how their calculations have been made. [92] Mr Baker says that it is understood that his 30-minute meal break should be taken between the fourth and sixth hour of duty and that 10-minute breaks should occur in the first and second half of the working day. However, on the day in question, Mr Baker says that he was running late due to meetings and was unable to take a morning or lunch break and was driving to Pomona during the window for a meal break. [93] Mr Baker says that the total time he was absent from work duties did not exceed the 30 minutes allocated for a meal break or in the alternative, 30 minutes for a meal break and 10 minutes for an afternoon rest pause. [94] Mr Baker says that an assertion that he is guilty of fraudulent and corrupt conduct is ‘bemusing and entirely without foundation’ and that while he admits to making an innocent mistake of documenting the first home visit inaccurately and documented the time he had arranged to visit being 1300 hours instead of the actual time being 1400 hours, the reasons for being late were a prolonged meeting with his team leader. [95] Mr Baker says that the contravention of the award is merely technical in nature and is immaterial to the continuity of his work. [96] Mr Baker says that a disciplinary finding under section 91(1) of the PS Act cannot be upheld because the Health Service is required to establish that the absence was not only without approved leave, but was also without reasonable excuse. -- 19 of 20 -- 20 Respondent’s submissions: Allegation three [97] The Respondent says that the email contained in Mr Baker’s appeal submission where a consumer’s carer confirms the times Mr Baker attended upon the residence is new information not made available or known to Mr Spence-Thomas to consider when determining the disciplinary finding decision prior to issuing the second show cause notice. [98] The Respondent says that with consideration to this newly presented information, the Health Service is open to review the substantiation of the allegation as part of the next steps in the discipline process. [99] In relation to Allegation three, the Respondent seeks an opportunity for the delegate to consider and review the new information afresh. Consideration: Allegation three [100] I note that Mr Baker has produced new evidence in his submissions to this appeal and that the Respondent has requested the opportunity to consider this new information and review the substantiation of the allegation. [101] I am of the view that this is the appropriate course of action regarding Allegation three and I order that the decision about Allegation three be set aside and that the matter be returned to the decision-maker to reconsider within 28 days of this decision on appeal. Conclusion [102] The disciplinary finding regarding Allegation one remains undisturbed. The findings regarding Allegations two and three are returned to the decision-maker for further consideration within 28 days of this decision on appeal. Order [103] I make the following order: 1. Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), the decision regarding Allegations two and three is set aside. The matter is returned to the decision-maker with a copy of the decision on appeal for further consideration within 28 days of this decision on appeal. -- 20 of 20 --