Daly v State of Queensland (Queensland Health) [2022] QIRC 54

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION CITATION: Daly v State of Queensland (Queensland Health) [2022] QIRC 054 PARTIES: Daly, Rebecca (Appellant) v State of Queensland (Queensland Health) (Respondent) CASE NO.: PSA/2021/311 PROCEEDING: Public Service Appeal – Fair Treatment Decision DELIVERED ON: 23 February 2022 MEMBER: HEARD AT: Power IC On the papers ORDERS: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): (a) the decision appealed against is set aside; (b) the matter is returned to Mr Chris Neilsen, Director Organisational Development, South West Hospital and Health Service ('the decision maker') with a copy of the decision on appeal; and (c) the decision maker is directed to retract the letter of 24 August 2021. CATCHWORDS: PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – Public Service Appeal – notice to show cause letter issued – whether decision to substantiate allegations and impose disciplinary penalty fair and reasonable – final determination letter outlines additional complaint not put to appellant – decision not fair and reasonable -- 1 of 9 -- 2 LEGISLATION: Industrial Relations Act 2016 (Qld), ss 562B and 562C Public Service Act 2008 (Qld), ss 25 and 25A CASES: Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018) Reasons for Decision Introduction [1] Ms Rebecca Daly ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Registered Nurse at Roma Hospital, South West Hospital and Health Service ('SWHHS') on a temporary engagement. [2] Following an expression of interest recruitment process, on 7 January 2021, the Appellant was successful in obtaining a permanent part time Registered Nurse position in the Perioperative Unit, commencing 22 March 2021. [3] On 25 March 2021, the Respondent received a patient complaint with respect to the Appellant's interaction with a consumer ('the first complaint') and on 28 April 2021, the Respondent issued a letter of concern, providing the Appellant the opportunity to respond to the first complaint. On 14 May 2021, the Queensland Nurses and Midwives' Union of Employees ('QNMU') provided a response to the letter of concern on behalf of the Appellant. During this time, the permanent part time position was withdrawn by the Respondent as a result of the first complaint on 30 March 2021. [4] On 9 June 2021, a further patient complaint was received regarding the Appellant's interactions with a patient and family member which occurred on 2 June 2021 ('the second complaint'). The Appellant was subsequently issued with a letter from Mr Chris Neilsen, Director Organisational Development, SWHHS, dated 19 July 2021, which referred to the first complaint and outlined the two allegations concerning the second complaint. The two allegations were outlined as follow: Allegation one On June 2021 you displayed inappropriate conduct toward patient Ms Lee Pope, in the you were rude, neglectful and inconsiderate in your dealings with the patient. … Allegation two On or between 1 and 2 June 2021 you displayed inappropriate conduct toward consumer Ms Wendy Hall, in that you were rude and lacked respect in your manner. -- 2 of 9 -- 3 [5] On 5 August 2021, a response to the letter dated 19 July 2021 was provided by QNMU on behalf of the Appellant. In addition to responding to the allegations, concerns were raised regarding the withdrawal of the Appellant's permanent part time position. [6] On 24 August 2021, the Appellant was issued with a further letter from Mr Neilsen, advising that the Appellant's response was not accepted and the Appellant's temporary engagement would not be extended beyond 29 August 2021. The letter also advised the Appellant that a further complaint of similar conduct was received ('the third complaint'). [7] By appeal notice filed on 27 August 2021, the Appellant, pursuant to ch 7 of the Public Service Act 2008 (Qld) ('the PS Act'), appealed against the decision of the Mr Neilsen dated 24 August 2021. Appeal principles [8] The appeal must be decided by reviewing the decision appealed against.1 Because 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. [9] The stated purpose of such an appeal is to decide whether the decision appealed against was fair and reasonable.4 The issue for determination is whether the decision of Mr Neilsen dated 24 August 2021 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? [10] 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 [11] In the appeal notice, the Appellant appeals the decision on the grounds that the decision is unfair and unreasonable because: 1 Industrial Relations Act 2016 (Qld) s 562B(2) ('IR Act'). 2 Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261. 3 Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the PS Act. 4 IR Act s 562B(3). -- 3 of 9 -- 4 (a) the Respondent withdrew the permanent position on 30 March 2021, without any consultation, despite the Appellant having already accepted the offer of employment; (b) the permanent position was withdrawn prior to the Appellant being provided an opportunity to respond to the first complaint; (c) the Appellant had an unblemished record until receiving the first complaint; (d) the Appellant was given the opportunity to respond to the first complaint one month after the permanent position was withdrawn; (e) the Appellant was not provided with the opportunity to discuss the first complaint with her line manager to discuss ways of improving her performance, pursuant to ss 25 and 25A of the PS Act; (f) the principles of natural justice were not afforded to the Appellant with the second complaint as a thorough investigation was not undertaken; (g) the Appellant denied the allegations relating to the second complaint as the Appellant had a different recollection of the interaction. Further, there were other witnesses present who could verify the interaction and were not approached by the Respondent when considering the second complaint; and (h) despite being advised that the Appellant's employment will end on 29 August 2021, the Appellant has been rostered regular shifts up to 3 October 2021. Submissions [12] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. Respondent's submissions [13] The Respondent's submissions generally provides a chronology of events and notes, in particular, that: (a) the Appellant applied for some available permanent part time hours that were advertised internally via 'Expression of Interest'; (b) given the circumstances and nature of the first complaint, it was considered proper and diligent to consider the Appellant's appointment. Accordingly, Ms Melissa Wakefield, Director of Nursing, declined to progress the proposed appointment to permanent hours pending making enquiries into the first complaint; (c) Ms Wakefield advised the Appellant on 2 April 2021 that the Employee Movement Form had been withdrawn pending resolution of the complaint process and that the Appellant would be provided with an opportunity to respond. The Appellant did not raise any grievance or lodge an appeal about this decision at this time; -- 4 of 9 -- 5 (d) the Appellant's response to the complaint advised that she did not dispute any of the events in the first complaint and acknowledged that her practices on occasion were not of the standards required and that she needed to improve; (e) after consideration, Ms Wakefield advised the Appellant on 4 June 2021 that she would be required to undertake a learning plan to address the practice deficits and behavioural issues identified. Further, the Appellant was advised that her temporary employment arrangements would continue while under the learning plan. Again, the Appellant did not raise any grievance or lodge an appeal about this decision at this time; (f) upon receipt of the second complaint, the details were provided to the Appellant on 19 July 2021 and the Appellant responded by correspondence dated 5 August 2021. In considering the response, it was noted that her account was at odds with the information provided in the complaints and appeared to focus on the Appellant's own views on how she believed she had treated or interacted with the patient; and (g) advice was received on 12 August 2021 that the third complaint had been made by an agency nursing employee regarding the Appellant's behaviour towards a patient on 6 June 2021. [14] The Respondent submits that SWHHS requires that all staff members comply with the Code of Conduct and maintain the standards of compassionate care that are set out in mandatory training. The Respondent submits that, given the apparent repeated pattern of behaviour demonstrated by the Appellant, it was considered that the Appellant was not consistently meeting the standards of compassionate care. Consequently, it was decided that the Appellant's employment was concluded at the scheduled end of her temporary employment engagement and was advised of this decision in a letter dated 24 August 2021. Appellant's submissions [15] In response to the Respondent's submissions, the Appellant submits that: (a) the Appellant was required to submit a formal application for the part time permanent position, and whilst this was not an external/internal recruitment process, it was not a casual process as inferred by the Respondent; (b) there was no consideration made by the Respondent and the permanent position was unilaterally withdrawn by the Respondent on 30 March 2021 leaving the Appellant on a fixed term contract due to end within six months. It is unreasonable that this withdrawal occurred before the Appellant had been given an opportunity to respond to the first complaint; (c) no grievance was raised about the withdrawal of the permanent position as she felt insecure in her temporary fixed term position and was fearful of repercussions; (d) the process does not support the Respondent's position that the permanent position was withdrawn due to the serious nature of the first complaint; -- 5 of 9 -- 6 (e) it took the Respondent an unreasonable amount of time to raise the second complaint with the Appellant and views this as potentially intentional given the Respondent confirmed they would provide training because of the first complaint and were fully aware the Appellant's contract would end on 29 August 2021; (f) the Respondent failed to determine if the two allegations from the complaints were substantiated from the letter dated 24 August 2021; (g) a new alleged complaint was raised in the letter dated 24 August 2021 and the Appellant was never given an opportunity to respond to the third complaint; (h) the Appellant has an unblemished record from her time working at Roma Hospital from 27 January 2020 to 25 March 2021 when an incident resulting in a patient complaint occurred; was cooperative and genuine with the Respondent; and apologised in both responses for any conduct viewed by the patients as inappropriate; and (i) the Respondent has not followed appropriate performance management and disciplinary processes. [16] The Appellant further submits that the Respondent breached the principles of natural justice and procedural fairness when it determined on 30 March 2021 to withdraw a permanent position the Appellant had successfully attained and that: (a) there was no formal decision or outcome provided to the Appellant regarding the first complaint from March 2021; (b) the two allegations presented in the letter of allegations dated 19 July 2021 were not substantiated; and (c) the Appellant was never given an opportunity to respond to the third complaint and was not advised about the colleague's complaint from June 2021 until receiving the final letter from the Respondent. Respondent's submissions in reply [17] In the Respondent's reply submissions, the Respondent relies on and maintains its position as submitted in its previous submissions and further submits that SWHHS has provided the Appellant with due process and ample opportunity to respond to the complaints. Additionally, the Respondent submits that it was made clear in the outcome letter dated 24 August 2021 that the Appellant's response had not been accepted and that she had not provided any reasonable explanation for her behaviours. Consideration [18] Consideration of an appeal of this kind requires a review of the decision of 24 August 2021 to determine if the decision was fair and reasonable in the circumstances. [19] The Appellant submits as part of this appeal that it was not fair and reasonable for the Respondent to withdraw an offer of a permanent part-time position from the Appellant -- 6 of 9 -- 7 following receipt of the first complaint. It is unclear how far the appointment process had progressed, with the Respondent submitting that the Director of Nursing declined to progress the proposed appointment pending enquires into the complaint. The Appellant's submissions indicate that, in their view, the process was finalised. The difficulty for the Appellant is that this decision is not the decision subject to the appeal. Any appeal against the decision to not progress the appointment, or withdraw the appointment, was required to have been filed within 21 days of that decision. The Appellant's submission that a grievance was not raised at the time due to concerns about repercussions may be understandable, however this is not a satisfactory basis for considering an appeal against such a decision five months beyond the statutory timeframe. [20] The decision maker, Mr Neilsen, advised the Appellant via correspondence dated 24 August 2021 that he did not accept that she had provided reasonable explanations for her conduct relating to the second complaint and after consideration of this conduct along with the previous complaint and a further complaint, the Appellant's temporary contract would not be extended beyond 29 August 2021. This is the decision the subject of appeal. [21] On 25 March 2021, the first complaint was received relating to the Appellant's interaction with a mother and baby which resulted in the patient being discharged against medical advice. On 28 April 2021, the Appellant received a letter from Ms Wakefield providing her with an opportunity to respond to this complaint. This letter was not a notice to show cause, with Ms Wakefield indicating that she was seeking a response from the Appellant before determining how to proceed with the matter. [22] In the Appellant's response, she did not dispute any of the events outlined in the first complaint and noted that she was not aware that she had been recorded by the person making the complaint. The Appellant apologised and stated that she would need to improve her nursing practice. [23] Ms Wakefield advised the Appellant that, after considering her response, she would be required to undertake a learning plan to address the practice deficits and behavioural issues identified within the first complaint. [24] It seems that the first complaint was addressed in a reasonable manner by the Respondent, with a performance management process utilised rather than a disciplinary process. In any event, the Appellant did not raise a grievance with respect to the management of this complaint. [25] Following receipt of the second complaint on 9 June 2021, the Respondent provided the Appellant with a notice to show cause on 19 July 2021 outlining the nature of the second complaint and providing the Appellant with an opportunity to show cause as to why she should not be disciplined in relation to the allegations in the second complaint. [26] The Appellant submits that it took the Respondent an unreasonable amount of time to raise the second complaint with the Appellant, with the QNMU asserting this delay as potentially intentional given the Respondent was aware the Appellant's contract ceased on 29 August 2021. The time between receipt of the second complaint and the issuance of the notice to show cause was significant, however there was no evidence of prejudice suffered by the Appellant nor of any deliberate attempt by the Respondent to elongate the process. -- 7 of 9 -- 8 [27] The Appellant provided a response to the show cause notice in which she provided an alternative account of the interactions with the patient and sister who made the allegations in the second complaint. [28] In the decision dated 24 August 2021, Mr Neilsen stated the following: I have considered the responses to all complaints received, including the previous complaint of 25 March 2021 to which Ms Daly responded on 14 May 2021 as detailed in my previous correspondence. It is also noted that the Health Service is in receipt of yet another complaint of similar conduct. Decision I do not accept that you have provided reasonable explanations for your behaviours and your responses appear at odds with the information provided within the complaints. The receipt of a further complaint also appears to demonstrate a clear and continuing pattern of behaviour that does not align with the Code of Conduct of SWHHS values. It is noted that your current temporary engagement with the Roma Hospital SWHHS ends on 29 August 2021, and given the nature and repetition of the behaviours you have demonstrated, it has been decided that there will be no extension of your temporary employment beyond 29 August 2021. [29] The Appellant submits that the Respondent failed to determine if the two allegations from the second complaint were substantiated. In my view, a reasonable reading of the letter would confirm that Mr Neilsen did in fact consider the allegations substantiated on the basis that he did not accept the Appellant's explanations for the conduct. Whilst it would be preferable for any decision maker to clearly state that the allegations were either substantiated or not, a different choice of words does not make the decision unfair or unreasonable. [30] It was not unreasonable for Mr Neilsen to determine that the second complaint had been made out on the material before him at the time. Nor was it unreasonable to take into account the first complaint which had been handled through performance management rather than disciplinary procedures. This conduct was not exempt from consideration simply because it was not subject to a disciplinary process, particularly in circumstances in which the facts were not contested and the Appellant apologised for her conduct. [31] It was, however, a breach of nature justice for the decision maker to take into consideration the content of a complaint that had not been put to the Appellant for her response. The reference in the decision to 'yet another complaint' relates to a further complaint received on 12 August 2021 from an agency nursing employee in relation to the Appellant's behaviour towards a bariatric patient. There is no evidence that the Appellant was given any opportunity to respond to this complaint. [32] Principles of procedural fairness provide that the Appellant had a right to be heard on the matter, and the opportunity should have been afforded to the Appellant to respond to the particulars of the third complaint. The third complaint had influenced Mr Neilsen's decision to the extent that he determined that it demonstrated a clear and continuing pattern of behaviour. This was not a fair conclusion given both the procedural -- 8 of 9 -- 9 deficiencies and the potential that the third complaint may not have been substantiated after a response from the Appellant was considered. [33] I note that Mr Neilsen determined in his decision of 24 August 2021 that the Appellant's temporary employment would not be extended beyond its end date of 29 August 2021. The Appellant was not terminated, rather her temporary contract was not extended. In the Appellant's submissions, her representatives at the QNMU sought formal retraction of the disciplinary letter as the Appellant would like a second chance to work for the Respondent should an opportunity arise. [34] For the reasons outlined above, I am not satisfied that the decision making process in this matter adhered to the principles of procedural fairness. Consequently, the decision was not fair and reasonable in the circumstances and should be withdrawn. [35] The Appellant's temporary employment contract ended on 29 August 2021 and I note the QNMU's submissions that the Appellant continued to be employed on a temporary basis up until 31 October 2021. It is not clear whether the Appellant continues to be employed in the workplace on a temporary basis. I am mindful that, although the decision of 24 August 2021 must be withdrawn due to the deficiencies outlined above, the Respondent is not prevented from re-commencing the show cause process. If that course of action is taken, it would be appropriate to appoint a different decision maker to conduct the process in accordance with the rules of procedural fairness. Order [36] I make the following order: Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld): (a) the decision appealed against is set aside; (b) the matter is returned to Mr Chris Neilsen, Director Organisational Development, South West Hospital and Health Service ('the decision maker') with a copy of the decision on appeal; and (c) the decision maker is directed to retract the letter of 24 August 2021. I certify that the preceding 36 paragraphs are a true copy of the Reasons for Decision of Industrial Commissioner Power. J.M. POWER, Industrial Commissioner ……………………………… (Signature) Dated: 23 February 2022 -- 9 of 9 --