Burton v State of Queensland

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Coleman v State of Queensland (Department of Education) [2020] QIRC 032

Goodall v State of Queensland [2018] QSC 319

• [1] Ms Sandra Burton ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Food Services Officer, OO2, within the Operational Services Unit of the Princess Alexandra Hospital ('PAH').

• [2] By letter dated 5 March 2024, the Appellant was issued with a notice to show cause to the following allegation:

On or around 12 March 2023, it is alleged that you failed to provide tray meals to patients remaining in their rooms during the lunch service in the Bunya Ward.

• [3] On 26 March 2024, a response was provided through the Appellant's union representative.

• [4] On 6 June 2024, Dr Brian Bell, Acting Executive Director, Princess Alexandra Hospital, ('the decision maker') issued a disciplinary finding letter to the Appellant advising that the allegation had been substantiated on the balance of probabilities ('the decision'). The decision maker further informed the Appellant that serious consideration was being given to impose the disciplinary action of a reprimand and the imposition of a monetary penalty of $339.00, being equivalent to a temporary reduction in paypoint from OO2E to OO2.4 for a period of 6 months.

• [5] The Appellant filed an appeal against the decision in the Industrial Registry pursuant to s 131(1)(d) of the Public Sector Act 2022 ('the PS Act').

• [6] 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.

• [7] 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 to substantiate the allegation and make the disciplinary finding against the Appellant 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?

• [8] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

(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.

• [9] In the appeal notice, the Appellant outlines the following reasons for appeal:

The decision to substantiate this allegation is unfair and unreasonable in that the decision maker:

• Relied upon subjective opinions and speculation in determining if the alleged misconduct occurred;
• Relied primarily on verbal complaints to substantiate the alleged misconduct;
• Relied on written complaints not made concurrently with the date of misconduct;
• Failed to obtain or give weight to relevant evidence from staff members directly involved in and or witness to the incident.
• Made findings unsupported by objective evidence, and not accounting for all relevant material, in contravention of Human Resources Policy E10
• Gave insufficient weight to the Appellant's responses to the allegation;
• Did not consider that the appropriate approach was for the respondent to apply Directive 02/24: Positive Performance Management rather than Directive 05/23: Discipline in this instance.

• [10] Section 91 of the PS Act relevantly provides the following:

(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(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.

(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.

• [11] Clause 7 of the Discipline (Directive 05/23) ('the Directive') relevantly provides the following:

1. 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 omissions 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 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.

• [12] The Commission issued a Directions Order calling for submissions from both parties following receipt of the appeal notice. The submissions are summarised below.

• [13] The Appellant's submissions are summarised as follows:

(a) The Appellant argues that the decision was unfair and unreasonable in that the decision maker relied on subjective opinions and speculation in determining if the alleged misconduct occurred, relied on verbal complaints to substantiate the alleged misconduct, relied on written complaints not made concurrently with the date of the misconduct, and failed to obtain or give weight to relevant evidence from staff members directly involved in or witness to the incident.

(b) The Appellant refers to cl 9.4(c) of the Directive which states that a disciplinary finding must include a clear explanation of the "finding of fact on the balance of probabilities, including the evidence relied on to reach the finding". The Appellant then refers to the wording of the Directive in 'Definitions' which states that the "balance of probabilities reflects the principle established in Briginshaw v Briginshaw." The Appellant refers to Briginshaw when Dixon J states that "'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences...". The Appellant argues that the disciplinary finding contains subjective and/or speculative statements of opinion as to the conduct of the Appellant.

(c) The Appellant makes submissions about the quality of the evidence relied upon by the decision maker, particularly referencing complaint emails sent by multiple staff members. The Appellant argues that there is no contemporaneous evidence in the form of file notes or other documentation to corroborate that the misconduct occurred. The Appellant further argues that none of the emails provide direct evidence that would support the decision reached by the decision maker that the Appellant would not have undertaken her duties to give patients their bedside meals. The Appellant submits that this conclusion cannot be inferred from hearsay alone.

(d) The Appellant also argues that the decision maker did not consider that the appropriate approach was to apply the Positive Performance Management Directive instead of the Discipline Directive in contravention of s 85 and s 86 of the PS Act.

(e) The Appellant submits that in one of the complaints about the Appellant, positive performance management methods were recommended. The Appellant further submits that the Respondent failed to proactively manage the Appellant when she raised the issue about nurses keeping inaccurate records of patients requiring bedside meals. The Appellant argues that it was not open to the decision maker to make a disciplinary finding against the Appellant as the Respondent had both failed to proactively deal with the issue, and failed to correctly identify at the earliest possible stage that the performance did not meet expectations.

• [14] The Respondent's submissions are summarised as follows:

(a) The Respondent submits that due to workplace disagreements with nursing staff, the Appellant made a conscious decision to not provide meals to patients of the PAH.

(b) The Respondent argues that while the Appellant may have taken issue on an ongoing basis with how nursing staff had indicated which patients would require meals in bed, that issue was not appropriately addressed by refusing to serve food to public hospital inpatients.

(c) The Respondent further argues that it was not acceptable for the Appellant to 'make a point' to nursing staff in a way which impacts patient care or in a way that takes nursing staff away from their clinical care duties.

(d) The result of the Appellant's decision to "make a point" and not deliver patient meals is that the patients didn't have meals, leading to nursing staff having to divert attention away from frontline clinical care responsibilities to ensure patients could access meals.

(e) The Respondent submits that the allegations against the Appellant suggested that she did not simply fail to satisfy the work performance and conduct principles, or the public sector principles set out in s 91(4) of the PS Act. The Respondent argues that there was therefore a reasonable basis for concern that the personal conduct was a deliberate departure from the acceptable standard, and the contravention was serious. The Respondent further argues that it was therefore open to the decision maker to decide that the allegations would be more appropriately dealt with by way of a disciplinary process rather than by way of management action or performance management.

(f) The Respondent makes submissions in support of the decision being open to the decision maker on the material available to them. This includes a summary of the evidence given by various nursing and other PAH staff that the Appellant had deliberately elected not to deliver food to patients to 'make a point' due to nurses not updating the patient board.

(g) The Respondent further submits that the Appellant's version of events, being a broad denial that the conduct occurred, was incongruent with the consistent version of events recounted by other staff. The Respondent argues that as there was no reason to suggest that the other staff had been dishonest in their accounts, it was reasonably open to the decision maker to prefer their version of events over the Appellant's and to give that evidence more weight.

(h) The Respondent argues that it was therefore open to the decision maker to find that in relation to the substantiated allegation, the Appellant was guilty of misconduct pursuant to s 91(1)(b) of the PS Act.

(i) The Respondent refers to the decision of Coleman v State of Queensland (Department of Education)[5] ('Coleman') in which Deputy President Merrell considered the meaning of 'inappropriate' or 'improper' conduct under s 91(5) of the PS Act.

(j) The Respondent submits that the Appellant's conduct was planned, and an intentional act to 'make a point' to nursing staff by not delivering patient meals. The Respondent argues that this can reasonably be considered a deliberate departure from the accepted standards of the workplace, meeting the definition of misconduct considered by Deputy President Merrell in Coleman.

(k) The Respondent argues that it is also open to the decision maker to consider that a higher standard of professionalism and care can be expected from health services employees engaged in high-dependency wards where patients have increased levels of vulnerability and reliance on others to ensure their needs are met.

(l) The Respondent argues that the Appellant's conduct had a direct, reasonably predictable impact on patient care, meaning it was open to the decision maker to find that the Appellant was guilty of misconduct.

• [15] In reply, the Appellant made the following submissions, in summary -

(a) The Appellant argues that it was not open to the decision maker to form a view given that the available evidence from the nursing and other PAH staff was not sufficient. The Appellant argues that the available evidence was hearsay, opinion, and speculation, and was not based in fact.

(b) The Appellant further argues that the decision maker made a subjective finding that the Appellant had decided to not provide meals to the patients, despite the Appellant having meals prepared and ready to be served. The Appellant submits that this assumption is contradictory as in one instance the Appellant has prepared meals, but in another was allegedly refusing to serve those meals to patients.

(c) The Appellant also argues that it was not open to the decision maker to determine that the allegations would be more appropriately addressed by a disciplinary matter than by way of performance management due to a lack of primary evidence and the fact that the evidence was predominately based on hearsay.

(d) The Appellant makes submissions disputing the summary of the evidence available to the decision maker that was in the Respondent's submissions on the basis that the evidence is hearsay and focused on subjective statements.

(e) The Appellant submits that while there is no suggestion that the personnel colluded to provide a false narrative, it is likely that flawed evidence allowed the decision maker to reach a decision that ought not be open to have been made.

• [16] The Appellant appeals the decision of the Respondent in which an allegation was substantiated, and a disciplinary finding of misconduct was made.

• [17] The Appellant submits that the Respondent should have addressed the alleged conduct by way of positive performance management rather than commencing a disciplinary process.

• [18] The requirements to commence a discipline process are outlined in cl 7 of the Directive. Clause 7.1 of the Directive outlines that, in accordance with s 91 of the PS Act, a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. Clause 7.2 provides that where a work performance matter arises that may constitute a ground for discipline under s 93 of the PS Act, a chief executive must determine whether to commence a disciplinary process after assessing a number of factors.[6]

• [19] The Respondent submits that the decision to commence a disciplinary process was made after the decision maker formed the view that the Appellant's conduct may have amounted to either misconduct or a breach of the relevant standard of conduct that was sufficiently serious to warrant disciplinary action.

• [20] Consideration of the seriousness of the employee's personal conduct and/or work performance is a relevant factor to be assessed in accordance with cl 7.2(a) of the Directive.

• [21] The relevant allegation in this matter was that the Appellant made a deliberate decision to not provide meals to patients. This action was allegedly undertaken because of the Appellant's ongoing concerns that nursing staff were not ensuring that patient names were written on a whiteboard.

• [22] I am satisfied that the nature of the allegation was serious in that it involved a deliberate decision to deny meals to patients in the hospital. This conduct could not reasonably be seen as simply a failure to satisfy work performance and conduct principles. The fact that the Appellant had previously been spoken to about similar conduct indicates that it was appropriate to manage this matter through a disciplinary process. Accordingly, it was open to the decision maker to commence a disciplinary process rather than address the conduct through positive performance management.

• [23] The following background was outlined in the notice to show cause -

• on 14 March 2023 Mr Budd, A/Manager Retail & Patient Services, received a complaint from Mr Lewis, Nurse Unit Manager (NUM) on behalf of senior nursing staff regarding the Appellant's alleged inappropriate conduct.

• a meeting was held on 21 March 2023 between Mr Budd, the Appellant, Mr Loftus (support person) and Mr Parker (Co-ordinator Staffing Support, Operational Services, PAH) to discuss the concerns raised in the complaint.

• A further meeting was held on 27 March between Mr Budd, Mr Parker, the Appellant and Kelsey Hills (support person) to discuss the complaint. During this meeting the Appellant elected not to respond to the concerns raised and, given no response was provided, Mr Budd escalated to Human Resources for advice. Ms Hills stated that the complaint was vague and did not specify the patient's name or the meal service period (breakfast, lunch, or dinner).

• [24] The Show Cause Notice outlined the allegation and associated particulars in the following terms -

On or around 12 March 2023, it is alleged that you failed to provide tray meals to patients remaining in their rooms during the lunch service in the Bunya Ward.

a) prior to the lunch service, you identified that there were no patient room numbers listed on the whiteboard as requiring meals in their room.

b) In a separate complaint made by Ms Patricia Kelly, Operational Officer on 22 March 2023, Ms Kelly alleges that on 12 March 2023 before the lunch service, you said to her "I'm going to make a point if [room numbers] are not placed on the board, [you were] going for the meals'. (Attachment 6)

1. after the lunch service had begun, the nursing staff approached you to ensure the patients would be receiving their meals.

d) It is alleged you replied to the nursing staff that the bed numbers for patients had not been listed on the whiteboard as is usual process.

e) The nursing staff advised it was an oversight due to workload and had received complaints from patients and family members that no meals were provided.

f) It is alleged that you then aggressively stated to the nurses, 'if no information was on the whiteboard, then no patients will receive a meal'.

g) it is alleged that you then refused to provide meal trays for those patients.

h) It was later discovered that you had in fact prepared the meal trays for the patients, as you were aware that they were remaining in their room but did not mention this to the nursing staff nor supply the meal trades you had put aside when asked.

1. In a file note, Ms Natasha Fox, Supervisor, Operational Services, recorded that during a conversation with you on 21 March 2023, in relation to the incident on 12 March 2023 you stated, 'it's not [your] responsibility to feed patients in their rooms' (Attachment 7).

• [25] The decision outlines the Appellant's response to the Show Cause Notice including her denial that she deliberately left patients without a meal.

• [26] The decision considered the Appellant's contention that there was no proof to support the allegation that she failed to provide meals to patients remaining in their rooms during the lunch service.

• [27] The decision maker determined that the Appellant had not suggested any justification as to why she "believe[d] that the nursing staff, the patients or the NUM would take the time out of their busy schedule, to fabricate these complaints."

• [28] The statements made by the nurses to their Nurse Unit Manager ('NUM'), Mr David Lewis, along with corroborating statements made separately by Ms Patricia Kelly, Operational Officer, and Ms Natasha Fox, Patient Food Service Supervisor, were considered by the decision maker to be consistent and dependable.

• [29] The decision maker noted that the Appellant simply stated that the events did not occur without providing any understanding as to why the patients, nursing staff or Mr Lewis fabricated their reports or what benefit they may have obtained from doing so.

• [30] In circumstances where the Appellant did not provide any explanation as to events of the day beyond a broad denial, or posit any possible reason as to why the other employees would have provided false reports, it was open to the decision maker to determine that the Appellant's response was not compelling.

• [31] The decision outlines that the recollection of the nurses was that the Appellant specifically stated, "if no information was on the whiteboard, then no patients will receive a meal", noting the Appellant's denial that such a statement was made. The nurses also recalled requesting the Appellant provide a meal to the patients and apologising for not putting the information on the whiteboard.

• [32] The Appellant contends that the complaint from Mr Lewis is vague and hearsay. The complaint was written following concerns raised by 'senior nursing staff', however, the staff are not individually identified. I accept the limitation of this document and am of the view that the complaint from Mr Lewis on its own would be insufficient evidence upon which to substantiate the allegation without further investigation.

• [33] Although the complaint from Mr Lewis may be given minimal weight, the letters from Ms Patricia Kelly and Ms Natasha Fox are compelling. The signed letter from Ms Kelly is evidence that the Appellant stated that she was not going to deliver the meals in order to "make a point". The signed letter from Ms Natasha Fox is evidence that the Appellant stated that it was not her responsibility to feed patients in their rooms if it is not written upon the board. This evidence is not hearsay and are primary accounts of conversations held directly with the Appellant.

• [34] The Appellant further submits that Ms Fox's file note should not be relied upon on the basis that it was not put to the Appellant to confirm that it was an accurate representation of the conversation. The file note written by Ms Fox is evidence of her recollection of the conversation. If the Appellant was of the view that this recollection was inaccurate, it was open to her to provide her version of the conversation. In the absence of an alternative recollection, it was fair and reasonable for the decision maker to rely upon this evidence.

• [35] The Appellant submits that the use of the phrase "make a point" is subjective and may be interpreted in a variety of ways. I am not persuaded that the context in which Ms Kelly states that the Appellant used the phrase lends itself to any other interpretation. The only reasonable interpretation is that that the meals were being withheld to demonstrate the Appellant's dissatisfaction with the nurses' failure to write the patient names on the whiteboard. It was therefore open to the decision maker to determine that the Appellant deliberately withheld the meals as a result of this issue.

• [36] The Appellant submits that the finding that she had the meals prepared and ready to be served but did not provide the meals to the patients is contradictory. There is nothing contradictory about this finding, with the alleged conduct only that the Appellant did not provide the meals to the patients. There is no suggestion in the materials that the Appellant was unwilling to prepare the meals, only that she was did not provide the meals to the patients where nurses had not written the patient names on the whiteboard.

• [37] It was fair and reasonable for the decision maker to prefer the accounts provided by Ms Kelly and Ms Fox given there they were broadly consistent and there was no reason to suggest that the parties had provided dishonest accounts. This is particularly so given the lack of a credible alternative version of events provided by the Appellant beyond a blanket denial. In keeping with the principles in Briginshaw v Briginshaw,[7] this evidence indicates that on the balance of probabilities it is likely the incident occurred in the matter outlined. Accordingly, it was open to the decision maker to substantiate the allegation.

• [38] The decision outlines consideration of a similar incident in November 2022 in which the Appellant was spoken to by Mr Budd after refusing to provide a meal to a patient and their family. The decision outlines an incident where a patient and family arrived in the dining room towards the end of the lunch service, at which time the Appellant stated words to the effect of "this is a hospital, not a hotel" before refusing to provide a meal. The decision maker considered this incident when determining the appropriate disciplinary finding.

• [39] The decision maker determined that on the basis of the substantiated allegation, the Appellant is guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of s 91(5)(a).

• [40] Misconduct is defined in s 91(5)(a) as including "inappropriate or improper conduct in an official capacity".[8]

• [41] Deputy President Merrell considered the definition of misconduct in the PS Act in Coleman v State of Queensland (Department of Education),[9] stating the following -

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[10]

• [42] The refusal to provide patients with meals is a deliberate departure from accepted standards. The fact that the Appellant had previously been spoken to about her refusal to provide a meal to a patient makes this conduct more egregious. Whilst it appears that the motivation for the Appellant's conduct was not to harm the patients but rather to address a process issue within the workplace, the consequence of her action was that vulnerable patients were inconvenienced and put at risk. Such conduct was clearly a significant departure from accepted standards that patients be provided their meals. Accordingly, it was open to the decision maker to make a disciplinary finding of misconduct.

• [43] In the decision, the decision maker considers a number of other issues raised by the Appellant.

• [44] The decision maker considered the Appellant's contention that a written complaint should have been requested from the patients or their families but determined that there was no obligation for nursing staff to have patients or their families submit the complaints in writing. The decision outlines the decision maker's consideration that it was appropriate for the nurses to prioritise ensuring the patients received their meals rather than making sure patients or their families had submitted a written complaint.

• [45] It was open to the decision maker to consider that the verbal complaints made to the nursing staff were not diminished because they were not committed to writing, particularly in circumstances where patients and families are encouraged to provide feedback to the hospital in all forms.

• [46] The Appellant submits that the written complaints were not made concurrently with the date of the misconduct. There is no requirement that a written complaint be only given weight if it is composed on the same date of an incident. Given the limited time delay between the incident and the date of the complaint, it was open to the decision maker to determine that the evidence contained therein was reliable.

• [47] The Appellant submits that the Respondent failed to obtain or give weight to relevant evidence from staff members directly involved in, or witness to, the incident. This submission is not taken further, with no indication given as to whether specific names were identified as having witnessed the incident and not interviewed. In the absence of any further particulars, this submission is not persuasive.

• [48] The Appellant submits that it was not the responsibility of operational staff to ensure each patient has a meal, or what that meal should be. The decision maker determined that whilst there is no expectation that food service staff were responsible for identifying what meals each patient should receive, it is part of their role to ensure that all patients receive a meal. It was fair and reasonable for the decision maker to determine that the Appellant is required to use 'common sense, judgement and empathy' to ensure that the listed tasks are completed appropriately, noting that at no time is it appropriate to put patients at risk to make a point or demonstrate her view that a process needs review.

• [49] I note the Appellant's submission that the issue regarding the process by which nurses are to note the patients' names and bed numbers on the whiteboard when meals are required was not addressed by the Respondent. While it appears that this may be a matter that requires management attention, it does not mitigate the Appellant's conduct.

• [50] In all of the circumstances, the evidence supports the substantiation of the allegation and the disciplinary finding of misconduct. Accordingly, the decision was fair and reasonable.

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.

[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 [2018] QSC 319, 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[5] [2020] QIRC 032.

[6] Outlined from (a) to (h) in cl 7.2 of the Directive.

[7] [1938] HCA 34; (1938) 60 CLR 336.

[8] Public Sector Act 2022 (Qld) ('the PS Act'), s 91(5)(a).

[9] [2020] QIRC 032.