Court of Appeal (Qld)|2008-12-19|Before: McMurdo P, Fraser JA and Cullinane J, Separate, reasons for judgment of each member of the Court, each concurring as to the, order made
McMurdo P, Fraser JA and Cullinane J, Separate, reasons for judgment of each member of the Court, each concurring as to the
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW
– PROCEDURAL FAIRNESS – BIAS – APPREHENSION
OF BIAS –
appellant employed as speech pathologist by Queensland Health –
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW– PROCEDURAL FAIRNESS – BIAS – APPREHENSIONOF BIAS –appellant employed as speech pathologist by Queensland Health –allegations against appellant that she withdrewservices from residential carefacility, that she was working inefficiently and inaccurately recording workperformed – appellantsuspended on full pay and then sent show causeletter outlining allegations – decision on whether termination may beappropriateto be made by first respondent – respondents involved inprevious disputes with appellant which resolved through QueenslandIndustrialRelations Commission processes – first respondent sent emails discussingapparent withdrawal of services from facility– whether there existed areasonable apprehension that the first respondent might be biased in herdetermination of the allegationsPublic Service Act 1996 (Qld), s 57, s 87, Sch 3
Public
Service Act 2008 (Qld), s 236, s 238
Ambrey v Oswin [2005] QCA
112, compared
Antoun v The Queen (2006) 80 ALJR 497
[2006]
HCA 2, applied
Ebner v Official Trustee in Bankruptcy (2000)
205 CLR 337
[2000] HCA 63, applied
Greenwood v Winsor & Anor
[2008] QSC 68, approved
Ivers v McCubbin & Ors [2005] QCA
200, compared
Johnson v Johnson (2000) 201 CLR 488
[2000]
HCA 48, cited
Laws v Australian Broadcasting Tribunal (1990)
170 CLR 70
[1990] HCA 31, applied
Minister for Immigration and
Multicultural Affairs v Jia Legeng (2001) 205 CLR 507
[2001] HCA 17,
applied
Re Refugee Review Tribunal
ex parte H (2001) 75 ALJR
982
[2001] HCA 28, considered
R v Abdroikov
R v Green
R v
Williamson [2007] 1 WLR 2679
[2007] UKHL 37, considered
Smits
v Roach (2006) 227 CLR 423
[2006] HCA 36, applied
Sun v Minister for Immigration and Ethnic Affairs (1997) 81 FCR 71
[1997] FCA 1488, cited
Vakautu v Kelly (1989) 167 CLR 568
[1989] HCA 44, applied
Webb v The Queen (1994) 181 CLR 41
[1994] HCA
30, cited
Judgment (252 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS FOR REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS - appellant employed as speech pathologist by Queensland Health - allegations against appellant that she withdrew services from residential care facility, that she was working inefficiently and inaccurately recording work performed - appellant suspended on full pay and then sent show cause letter outlining allegations - decision on whether termination may be appropriate to be made by first respondent - respondents involved in previous disputes with appellant which resolved through Queensland Industrial Relations Commission processes - first respondent sent emails discussing apparent withdrawal of services from facility - whether there existed a reasonable apprehension that the first respondent might be biased in her determination of the allegations
L F Kelly SC, with C J Murdoch, for the first and second respondents
[18]
Minter Ellison for the first and second respondents
[19]
[1] McMURDO P: Since 1982, Ms Quaneta Greenwood, the appellant, has been employed by the second respondent, the State of Queensland, as a speech pathologist with Queensland Health in the Maryborough and later Hervey Bay hospitals. Since 2005, Ms Kerry Winsor, the first respondent, has been the District Manager for the Fraser Coast Health Service District responsible for the administration of those hospitals. On 30 July 2007, Ms Winsor sent Ms Greenwood a letter stating that she may be liable for disciplinary action under s 87 Public Service Act 1996 (Qld)[1] ("the Act"). Ms Greenwood applied to a judge of the Trial Division of this Court for a statutory order of review of Ms Winsor's conduct. She sought an order restraining Ms Winsor from taking part in the process of determining whether Ms Greenwood was liable to disciplinary action, arguing that there was a reasonable apprehension of bias if Ms Winsor continued to be involved in that process. The hearing proceeded wholly on affidavit material without cross-examination over two days in October 2007 and February 2008. The learned primary judge ultimately rejected Ms Greenwood's contentions and dismissed her application. She now appeals from that order, contending that the judge erred in a number of respects.
[20]
[2] Although there are 15 grounds of appeal, Mr Keim SC who appears with Mr R Reid for Ms Greenwood, has combined and confined these to essentially three issues. The first is that the primary judge erred in finding that it was unnecessary that Ms Winsor be disqualified from participating in the disciplinary proceedings because of apprehended bias through pre-judgment.[2] The second is that the primary judge erred in failing to give adequate weight to the history of industrial disputes between Ms Greenwood and Ms Winsor and in not concluding from it that Ms Winsor should be disqualified because of apprehended bias.[3] The third is that the judge erred in not apprehending that any investigation by Ms Winsor of the allegations against Ms Greenwood in the letter of 30 July 2007 must involve Ms Winsor as a witness in the cause which she has to determine.[4]
[21]
[3] These are my reasons for refusing the appeal.
[22]
[4] Before turning to the grounds of appeal, it is helpful to discuss briefly some of the relevant legal principles and to set out the factual background to this workplace dispute.
[23]
[5] It is common ground that the primary judge correctly identified the test for apparent bias.[5] It is whether a fair-minded, properly informed member of the public might reasonably apprehend that the decision-maker might not bring an impartial mind to bear on the decision. The test flows from the fundamental requirement that justice must not only be done but be seen to be done: Vakautu v Kelly;[6] Ebner v Official Trustee in Bankruptcy[7] and Re Refugee Review Tribunal; ex parte H.[8] The appearance in a decision-maker of the mere possibility of partiality may be sufficient to lead to the disqualification of the decision-maker: Re Refugee Review Tribunal; ex parte H;[9] Antoun v The Queen.[10]
[24]
[6] In Minister for Immigration and Multicultural Affairs v Jia Legeng,[11] Gleeson CJ and Gummow J noted the difference between a decision-maker expressing a tentative view and a concluded one:
[25]
"... Decision-makers, including judicial decision-makers, sometimes approach their task with a tendency of mind, or predisposition, sometimes one that has been publicly expressed, without being accused or suspected of bias. The question is not whether a decision-maker's mind is blank; it is whether it is open to persuasion. ... "[12]
[26]
[7] The application of the apprehension of bias principle requires two steps. The first requires the identification of what it is said might lead a decision-maker to decide a case other than on its merits. The second is that there must be an articulation of the logical connection between that matter and the feared deviation from the course of deciding the case on its merits. The mere assertion that a decision-maker has an interest in the subject matter or in a party to the decision is irrelevant unless the asserted connection with the possibility of departure from impartial decision-making is articulated. Only then can the reasonableness of the claimed apprehension of bias be assessed: Ebner v Official Trustee in Bankruptcy;[13] Smits v Roach.[14]
[27]
[8] There may be apprehended or even actual bias on the part of a decision-maker where the bias is unintended and unconscious: see the observations of North J in Sun v Minister for Immigration and Ethnic Affairs.[15]
[28]
[9] The position in England seems similar to that in Australia. In R v Abdroikov; R v Green; R v Williamson,[16] Lord Bingham of Cornhill, with whom Baroness Hale of Richmond and Lord Mance agreed, recently explained it in these terms:
[29]
"The test of apparent bias has been developed through a succession of cases. In R v Barnsley Licensing Justices, Ex p Barnsley and District Licensed Victuallers' Association[1960] 2 QB 167, 187, Devlin LJ recognised that:
[30]
'Bias is or may be an unconscious thing and a man may honestly say that he was not actually biased and did not allow his interest to affect his mind, although, nevertheless, he may have allowed it unconsciously to do so'.
'The court looks at the impression which would be given to other people. Even if he were as impartial as could be, nevertheless if right-minded persons would think that, in the circumstances, there was a real likelihood of bias on his part, then he should not sit. And if he does sit, his decision cannot stand . . .'
[33]
Lord Goff of Chieveley, in R v Gough[1993] UKHL 1; [1993] AC 646, formulated the test of apparent bias in terms a little different from those now accepted, but echoed, at p 659, Devlin LJ's observations in the Barnsley Licensing Justices case in referring to 'the simple fact that bias is such an insidious thing that, even though a person may in good faith believe that he was acting impartially, his mind may unconsciously be affected by bias .... Following the decision of the Court of Appeal in In re Medicaments and Related Classes of Goods (No 2) [2000] EWCA Civ 350; [2001] 1 WLR 700, the accepted test is that laid down in Porter v Magill[2001] EWCA Civ 63; [2002] 2 AC 357, para 103: 'whether the fair-minded and informed observer, having considered the facts, would conclude that there was a real possibility that the tribunal was biased.' As the House pointed out in Lawal v Northern Spirit Ltd[2003] UKHL 35; [2003] ICR 856, para 14, 'Public perception of the possibility of unconscious bias is the key', an observation endorsed by the Privy Council in Meerabux v Attorney General of Belize[2005] EWCA Civ 634; , para 22. The characteristics of the fair-minded and informed observer are now well understood: he must adopt a balanced approach and will be taken to be a reasonable member of the public, neither unduly complacent or naïve nor unduly cynical or suspicious: see ; , para 14_; Johnson v Johnson_ ; , 509 para 53."
[34]
In Green's case a police officer sat as a juror in a criminal trial in which there was a dispute on the evidence between the accused and a police sergeant with a similar local service background as the juror. The majority concluded that the fair-minded and informed observer would consider that the juror was a "real and possible source of unfairness, beyond the reach of standard judicial warnings and directions."[18] Lord Bingham further noted:
[35]
"It must in my view be accepted that most adult human beings, as a result of their background, education and experience, harbour certain prejudices and predilections of which they may be conscious or unconscious. I would also, for my part, accept that the safeguards established to protect the impartiality of the jury, when properly operated, do all that can reasonably be done to neutralise the ordinary prejudices and predilections to which we are all prone. But ... these cases do not involve the ordinary prejudices and predilections to which we are all prone but the possibility of bias (possibly unconscious) which ... inevitably flows from the presence on a jury of persons professionally committed to one side only of an adversarial trial process, not merely (as the Court of Appeal put it) 'involved in some capacity or other in the administration of justice'."[19]
[36]
[10] Ms Greenwood is an experienced speech pathologist, qualified to treat head and neck cancer patients and stroke patients with swallowing issues. She has numerous post-graduate qualifications. She currently holds the position of Senior Speech Pathology Clinician with Adult Specialisation. The material before the primary court provided no reason to gainsay Ms Greenwood's sworn assertion that she takes pride in her profession.
[37]
[11] Ms Winsor took on the role of District Manager on 29 April 2005 and was appointed to that position in December 2005.
[38]
[12] On 22 July 2005, Ms Greenwood filed a dispute notice with the Queensland Industrial Relations Commission (QIRC) alleging that the District failed to comply with industrial instruments and other agreements in conducting a review of allied health services which included speech pathology services. She was critical of "the employer" and "local management". This dispute was settled on terms which included that the District undertook to compile terms of reference for the review and Ms Greenwood was to have input into the formulation of those terms.
[39]
[13] Ms Greenwood filed a second dispute notice with the QIRC on 10 February 2006. Its allegations included that the District had not complied with the terms of settlement of the first dispute in failing to consult properly with her as to the terms of the review. This dispute finally resolved in April 2006 by the disputants agreeing to a review of the Community and Allied Health functions in the District, with new terms of reference to be developed "in consultation with all relevant stakeholder parties" including staff and union representatives.
[40]
[14] On 17 August 2006 Ms Greenwood lodged what is called a "stage 3 grievance" with the Director-General of Queensland Health. She accused the District management of disinterest and inaction in respect of her concerns.
[41]
[15] Ms Yvonne Li, then Queensland Health's acting Principal Adviser, Human Resources Branch, wrote on 14 September 2006 in response to the QIRC in terms which included:
[42]
Before and since the last conference on 7 April 2006, FCHSD[20] management have made considerable efforts to communicate with Ms Greenwood. This was attempted through the normal supervisory channels to address issues raised both before and at the Conference. This has not been achieved.
[43]
In light of the fragile state of personal relationships with the Community and the Allied Health workforce at the FCHSD, Ms Greenwood was asked through her legal representative Ms Moriarty to participate in meetings with her supervisor. This was to be facilitated by a trained mediator from JAG.[21] Despite agreeing to attend the mediation with her supervisor Ms Cekulis, Ms Greenwood has now withdrawn her agreement by the submission of a stage 3 'grievance'.
[44]
Q Health is seeking the assistance of the Commission by reconvening a conference with Ms Greenwood in order that there may be a dialog between Ms Greenwood and her supervisor for the benefit of the community and FCHSD community and allied health services.
[45]
On 17 August 2006, Ms Moriarty, on behalf of Ms Greenwood, submitted to the Director-General material which has been described as a stage 3 'grievance'.
Q Health submits that this is yet another attempt to halt the review process which is due to commence on 18 September 2006.
[46]
Qld Health seeks the assistance from the Commission in the resolution of the following matters:
[47]
the ability for management to communicate with Ms Greenwood in the normal course of workplace management and supervision; and
2. that Ms Greenwood cease obstructing the strategy, resourcing and direction of the department; and
[48]
Ms Greenwood's co-operation and compliance with her employer's lawful and reasonable instructions.
Until the FCHSD and the reviewers are able to communicate with Ms Greenwood in the workplace, the ongoing service delivery in community and allied health will continue to be compromised due to Ms Greenwood's refusal to engage in discussions or take direction from supervisory staff." (errors as in the original)
[49]
[16] The primary judge found that Ms Li drafted this letter from information provided by Ms Winsor but without her specific and direct input and without her instructions to send it.[22] Those findings are not in dispute in this appeal.
[50]
[17] On 9 October 2006, Queensland Health, with Ms Winsor's authority, filed a dispute notice with the QIRC in which it raised further performance allegations against Ms Greenwood. This dispute was ultimately resolved by conciliation.
[51]
[18] On 23 April 2007, Ms Greenwood sent a letter dated 18 April 2007 to Ms Penny Dennis, Acting Director of Nursing, Maryborough Hospital on the topic of speech pathology services to a nursing home facility within the District known as Yaralla Place in these terms:
[52]
"Recently we have received a large number of referrals (arriving in groups of 5 or 6 at a time) from Nursing Staff at this facility. To attend to these we would be spending much of the day, every day at Yaralla Place which is simply not possible.
[53]
Many of the referrals are marked urgent and seem to pertain to Residents without identified dysphagia and state 'no record of assessment'. We are not able to routinely assess on admission.
[54]
Following discussions within the Department, with Kym Pointon in the QSEU and with Speech Pathology Colleagues; we recommend that Yaralla Place endeavours to establish a service agreement with a Private Speech Pathologist to provide regular client assessments and Staff Education. Our department is not resourced to provide such services.
[55]
My research indicates Ms Amanda Waterson has tailored her Private Practice towards servicing Residential Care Facilities and has ensured several other facilities met the relevant Aged Care Accreditation Standards.
[56]
I had raised the prospect of such a fee for service arrangement with Ms Tracey Cropp in 2006 and in the light of recent urgent Accreditation issues for the Nursing Home, I have provided the QSEU with Amanda's contact details.
[57]
I trust the Staff will understand that Yaralla Place is 'not our core business' and the expanded service now being expected will require Yaralla Place to contract for its own Speech Language Pathology Service."
[58]
[19] The letter was not signed but it recorded that it was from "Quaneta Greenwood SNR SPEECH LANGUAGE PATHOLOGIST & Diana Hecker SPEECH LANGUAGE PATHOLOGIST". Ms Greenwood sent copies of the letter to Nurse Unit Managers at three wings of Yaralla Place; Ms Kym Pointon, Manager QSEU[23] Maryborough; and Ms Ann Cekulis, Director, Community & Allied Health Services. Ms Cekulis was Ms Greenwood's immediate supervisor.
[59]
[20] On 30 April 2007, Queensland Health's Mr Barry Murnane emailed Ms Penny Dennis in these terms:
[60]
"I have a copy of the letter addressed to yourself from Quaneta Greenwood re Speech pathology services for Yaralla Place.
[61]
I am concerned that this letter has been formulated without consultation with Yaralla NUMS[24] and perplexed at QSEU involvement at this stage.
[62]
I believe we are reflecting the recent situation with district Dietetic services and negative Standards outcome, which was successfully addressed with round table consultation. That is, streamlining of referral process including workup by Yaralla staff prior to referral, GP consultation, clarification of referral requirements, monitoring by NUM's etc. This will enable phone advice from the District Dietitian service with minimilisation of on site visits.
[63]
Further, with consideration to overall budgetary requirements, particularly close scrutiny of DST figures and monitoring of staffing levels, I am concerned at Yarallas ability to sustain outsourced Speech pathology costs.
[64]
I feel in consultation similar outcomes could be achieved as to Dietetic service provision within a district resources." (errors as in the original)
[65]
[21] On 1 May 2007, Ms Dennis emailed Ms Cekulis, and sent a copy to Ms Winsor, in these terms:
[66]
"According to the letter that was sent re the speech theray, you already have a copy.
[67]
I have also attached an email from Barry in relation to Quanita's letter regarding the speech therapy.
[68]
I must say, I was disappointed that there was not discussion with [Yaralla Place] NUMs or myself prior to the letter.
[69]
It is a condition of the Aged Care Standards that this service be provided and outsourcing is not financially supported from within budget. So, as with dietitian services, a middle strategy must be found.
[70]
I am happy to meet and discuss with NUM's and yourself." (errors as in the original)
[71]
[22] On 4 May 2007, Ms Winsor sent an email to Ms Cekulis, Mr Murnane, Ms Dennis and a number of other employees of Queensland Health in terms including:
[72]
"Further to discussions held this week (with Barry [Murnane] & Penny [Dennis]), I confirm the following:
[73]
I refer to a document dated 18 April 2007 advising that speech pathology services to Yaralla Plavce have been withdrawn. I advise that no approval has been provided to withdraw Speech Therapy services to Yaralla Place.
[74]
... I ask that I be provided with the details of any resident requiring speech therapy services, urgently or otherwise, to enable facilitated access to the service to ensure patient safety, nutrition and hydration." (errors as in the original)
[75]
[23] On 11 May 2007, Ms Winsor suspended Ms Greenwood from duty pending the investigation of allegations of professional misconduct. She wrote as District Manager to Ms Greenwood in these terms:
[76]
"Serious allegations have arisen concerning your professional conduct.
[77]
In a letter dated 18 April 2007, you advised Ms Penny Dennis, Acting Director of Nursing, Maryborough Base Hospital that you were withdrawing the provision of speech pathology services to Yaralla Place. The allegations in relation to this letter are:
You withdrew this service without any authority or delegation to make such a decision to withdraw the service.
You failed to discuss the action with your supervisor or with me both prior to and after taking the action. You also failed to discuss with me or your supervisor any operational or workload issues which prompted you to take the action, despite being repeatedly requested to communicate with us in relation to those issues.
The letter is misleading in several respects. In particular:
The use of the phrase 'following discussions within the Department...' represents that the District was aware of and approved the withdrawal of the service; and
The letter is drafted as coming from yourself and Ms Dianna Hecker. However Ms Hecker was not on duty on 18 April 2007, and in fact has been away from the workplace for some considerable time on extended leave from the District.
Your action of withdrawing this service created a potential for risk to the residents of the Yaralla Place facility and potentially compromised the safety of those patients and had the capacity to incorrectly represent that Queensland Health did not have the capacity or the willingness to provide its normal service to this facility.
[78]
As required, I have referred the allegations above to the Ethical Standards Unit (ESU) of Queensland Health for their consideration as to whether your actions may constitute official misconduct.
[79]
At this time, you are entitled to, but are not required to, provide any information you would like to be considered in relation to the allegations. Any information you wish to provide should be submitted to me within 14 calendar days from receiving this letter. I will pass this information on to the ESU.
[80]
It is important that confidentiality is maintained in relation to the investigation. You are directed not to discuss the allegations above with any other staff member.
[81]
If the matter is referred back from the ESU to me to manage, and I decide (having considered any information provided by you) to initiate disciplinary action against you, at that time I will ask you to show cause why I should not take disciplinary action. If this occurs, you will have a full opportunity to respond in accordance with Queensland Health procedures and the principles of natural justice.
[82]
In view of the above allegations and in light of my belief that continuing your services during this period may prejudice the efficient and proper management of the Fraser Coast Health Service District, I am suspending you from duty with pay until further notice pending the outcome of the investigation. This administrative action is taken pursuant to section 89 of the Public Service Act 1996.
[83]
As a consequence of this suspension you are not to present yourself in the vicinity of any Fraser Coast Health Service District facility without prior permission from Ms Chris Lister, Manager Human Resources, other than to seek necessary medical treatment.
[84]
In order to maintain appropriate speech pathology services and ensure ongoing patient care, you are directed as follows:
[85]
you are to prepare a complete list of your all current cases (including the names of all patients/clients receiving treatment from you) and a list of the location of the relevant files for such patients/clients receiving treatment from you;
you are to provide the above lists to your manager Ms Ann Cekulis prior to the close of business today (5 pm); and
you are to return to Ms Cekulis all keys for the District speech pathology service.
[86]
Should you fail to follow these lawful directions, disciplinary action may be instigated against you pursuant to section 87(1)(d) of the Public Service Act 1996.
[87]
The Employee Assistance Service offers a confidential counselling service to all employees of the Fraser Coast Health Service District and you may wish to discuss with them your situation. To make an initial appointment, please contact the Rehabilitation Coordinator ...
[88]
Should you have any queries in relation to this process please do not hesitate to contact Ms Lister on the telephone number above." (my emphasis)
[89]
[24] Ms Greenwood has been suspended on full pay since 11 May 2007.
[90]
[25] Ms Greenwood's solicitor sent Ms Winsor a letter dated 17 May 2007 to the following effect. Ms Greenwood's letter of 18 April 2007, which Ms Greenwood wrote and copied to five Maryborough hospital nursing staff, did no more than suggest that an additional speech pathologist might be hired to deal with an increase in patient numbers; Ms Greenwood formed the view that Ms Winsor could not "demonstrate the necessary degree of impartiality and neutrality in administering the 'show cause' process"; Ms Greenwood requested that Ms Winsor voluntarily stand down from any further involvement in the proceedings so that a decision-maker with demonstrated impartiality could be appointed to oversee the process.
[91]
[26] The District referred the matter to Queensland Health's ESU and to the Crime and Misconduct Commission ("CMC"). On 31 May 2007, Ms Krystal Maguire, presumably an officer of Queensland Health, filed a complaint with the CMC about Ms Greenwood alleging "inappropriate behaviour" in that she:
[92]
"... a speech pathologist, Hervey Bay hospital, withdrew her service to provide speech pathology services to Yaralla Place, without authority or delegation or failing to discuss the action with her supervisor or District Manager, incorrectly representing the capacity or willingness of Queensland Health to provide normal service to the facility and creating a potential risk and compromising the safety of the patients of Yaralla Place."
[93]
[27] On 19 July 2007, Stephen Hearn, Team Leader (Central Area), ESU, Queensland Health, sent an email to Kerry Grant providing an analysis of the ESU's assessment of Ms Greenwood's matter. He noted:
[94]
"... it is alleged that Ms Greenwood has withdrawn the provision of a health service, namely Speech Pathology, in the absence of the appropriate delegations or authority.
[95]
On face, the contextual nature of this allegation when viewed independently, is of a standard that, if proved, may constitute grounds for dismissal. ...
[96]
Accordingly, this matter was referred to the Crime & Misconduct Commission under Section 40 of the CMC Act. Under their own interpretation of allegations, they also assessed this allegation as constituting Official Misconduct, more particularly, 'Inappropriate Behaviour'.
[97]
As the District is already in receipt of detailed evidence concerning this matter, the ESU is of the view that the District has the capacity to manage this matter and to provide [Ms Greenwood] with sufficient
[98]
particulars to cause [her] to provide a detailed response to the allegation."
[99]
[28] On 30 July 2007, Ms Winsor sent the letter at the centre of this appeal to Ms Greenwood. It was in these terms:
[100]
"The Ethical Standards Unit (ESU) and Crime and Misconduct Commission (CMC) have reviewed the allegations relating to the withdrawal of services to Yaralla Place, and have formed the view that your actions, if established, may constitute official misconduct. The CMC and ESU have referred the matter back to Queensland Health to take appropriate action.
[101]
In addition, further evidence has arisen which suggests there may be discrepancies between the number of occasions of service actually provided by you and the number of occasions of service that you reported.
[102]
The purpose of this letter is to give you formal notice of the allegations against you and to invite your response.
[103]
I have received a submission from your lawyer to the effect that I should not be further involved in any matters relating to your employment, because I am potentially biased against you as a result of various workplace processes. I have considered the particulars of this submission but do not believe that the allegations of bias can be upheld. I do not believe I am biased, and nor have I ever acted in a way which might suggest that I am not impartial. I believe that I am fully capable of making decision regarding your employment in an impartial and objective way. Accordingly, as the responsible District Manager, it is my responsibility to write to you in relation to any potential disciplinary matters.
[104]
However under the current delegations, only the General Manager, Central Area Health Service can make a final decision in relation to termination of employment. If I believe, having considered your response, that termination of employment may be appropriate, I will refer the matter to the General Manager for that determination. Any response you provide to me would be sent to the General Manager at that time.
[105]
After giving careful consideration to all evidence available to me so far in respect of the allegations, it appears that you may be liable for disciplinary action pursuant to section 87(1)(a), 87(1)(b) and/or 87(1)(f) of the Public Service Act 1996 (the Act) on the grounds of having:
[106]
performed your duties carelessly, incompetently or inefficiently;
been guilty of misconduct; and/or
contravened, without reasonable excuse, a provision of this Act or a code of conduct
[107]
In relation to (f), you are alleged to have breached a provision or provisions of the Code of Conduct 2006, specifically:
[108]
Principle 1 'Respect for people'
Working together
Effective teamwork is an essential part of a productive workplace. You can contribute to your team by ... working co-operatively and encouraging contributions from all members of your team.
Principle 3 'Respect for the law and the system of government'
Carry out lawful directions
Carry out any lawful and reasonable directions you are given and implement policies and practices that apply to your work.
Principle 4 'Diligence'
Work to the best of your ability
Perform your duties to the best of your ability with care, competence and efficiency.
Act professionally
Avoid situations where your behaviour could reflect badly on Queensland Health or impact on your workplace.
Principle 5 'Economy and efficiency''
Managing time and resources
Manage your time and resources efficiently, and with regard to relevant policies.
[109]
Further details of the allegations against you are below:
[110]
In a letter dated 18 April 2007, you advised Ms Penny Dennis, Acting Director of Nursing, Maryborough Base Hospital that you were withdrawing the provision of speech pathology services to Yaralla Place. The allegations in relation to this letter are:
[111]
You withdrew this service without any authority or delegation to make such a decision to withdraw the service.
You failed to discuss the action with your supervisor or with the District Manager both prior to and after taking the action. You also failed to discuss with the District Manager or your supervisor any operational or workload issues which prompted you to take the action, despite being repeatedly requested to communicate in relation to those issues.
[112]
The letter is also misleading in several respects. In particular:
[113]
The use of the phrase 'following discussions within the Department ...' represents that the Fraser Coast Health Service District (District) was aware of and approved the withdrawal of the service; and
The letter is drafted as coming from yourself and Ms Dianna Hecker. However, Ms Hecker was not on duty on 18 April 2007, and in fact had been away from the workplace for some considerable time on extended leave from the District.
[114]
Your action of withdrawing this service created a potential for risk to the residents of the Yaralla Place facility and potentially compromised the safety of those residents and had the capacity to incorrectly represent that Queensland Health did not have the capacity or the willingness to provide its normal service to this facility. Your failure to consult in relation to the service is also evidence of your failure to work as a team member.
[115]
The CMC and ESU consider that your action in withdrawing services from Yaralla Place without authority if established constitute official misconduct.
[116]
Inefficiency in carrying out your duties and inaccurate reporting
[117]
Since your suspension on 11 May 2007, a locum has been engaged by the District to provide the adult speech pathology services normally provided by you. It appears that the locum is providing all of the required clinical services to adult patients in less than 20 hrs per week, as opposed to your full time hours as well as working after hours.
[118]
Based on this information, and the limited information I have from you about your own activities, I have concerns that you have been carrying out your clinical responsibilities in an inefficient manner, even taking into account the meetings and other administrative tasks you are required to complete in addition to your clinical duties.
[119]
Because of the discrepancy that has emerged in hours of work between the locum and you (a full time employee), occasions of service data was compared between that reported by you and the locum.
[120]
As a result of this comparison, it appears that the numbers of occasions of service you have reported in the past may have been inflated and inaccurate. I am concerned that you may have negligently or deliberately inflated the numbers of occasion of service provided by you. If true, your actions have serious consequences, including:
[121]
difficulties for the District in ensuring we have the best match between the demand for special therapy services and our available resources;
inaccurate information for the purposes of setting funding priorities;
difficulties for the District in attempting to manage your workload and the times you are present at work and make sound decisions in relation to your employment.
[122]
Enclosed are copies of all material to be considered in connection with the allegations.
[123]
In accordance with the principles of natural justice, no determination has been made, or will be made until you have had the opportunity to formally respond to the allegations.
[124]
You are invited to respond in writing to these allegations by stating whether you admit or deny the allegations made against you and by furnishing any explanation in relation to these matters. Any response you choose to make must be received within 14 days of the receipt of this letter.
[125]
When providing your response to the allegations regarding your reported occasions of service, you should consider providing the UR numbers for patients you have treated so that they can verified.
[126]
I confirm that your suspension with pay will continue until a decision is made.
[127]
As a consequence of the continued suspension you are not to present yourself in the vicinity any Fraser Coast Health Service District facility without prior permission from Ms Chris Lister, Manager Human Resources, other than to seek necessary medical treatment. If you require access to the District's premises for the purpose of accessing records to prepare your response, please contact Ms Lister on ... to arrange a suitable time for you to attend. The District will arrange a person to supervise your access to ensure the integrity of its records.
[128]
If you do not respond, or if your response is received later than 14 days from the date of receipt this letter, I will make a decision on the material currently available to me.
[129]
It is important that confidentiality is maintained in this process to the greatest extent possible. You are directed not to discuss this letter with any other staff member.
[130]
The Employee Assistance Service offers a confidential counselling service to all employees of the Fraser Coast Health Service District and you may wish to discuss with them your situation. To make an initial appointment, please contact Rehabilitation Co-ordinator on ...." (my emphasis) (errors as in the original)
[131]
[29] In an affidavit sworn on 6 September 2007, Ms Winsor deposed:
[132]
"On Friday 27 April 2007, I was shown a hard copy of a memorandum dated 18 April 2007 that Ms Greenwood had written to Yaralla Place... . From the face of the memorandum, it appeared that Ms Greenwood had withdrawn speech pathology services from the Yaralla facility. I spoke to Ms Dennis and Barry Murnane, Yaralla Place, and asked them what their understanding of the situation was, and they both told me that they believed speech therapy services had been withdrawn from Yaralla place. This understanding is confirmed in their emails. Ms Greenwood had not consulted with me, or to my knowledge any other senior manager with the appropriate authority, regarding any issues with providing speech pathology services to Yaralla Place. If Ms Greenwood had withdrawn speech pathology services, as it appeared, her actions also removed the District's opportunity to implement alternative strategies or service delivery options.
[133]
I considered that Ms Greenwood's apparent actions in withdrawing services from Yaralla Place potentially constituted official misconduct, as Ms Greenwood does not have the authority or delegation to withdraw services."
[134]
[30] Ms Winsor refuted the allegation that she responded to Ms Greenwood's concerns by initiating show cause proceedings and suspending her without the conduct of a preliminary investigation. Ms Winsor swore that she had not taken any retaliatory action against Ms Greenwood, and that Ms Greenwood:
[135]
"appeared to have withdrawn a service without authority. Ms Greenwood's memorandum was prima facie evidence of this and a preliminary investigation was not required. It was appropriate to take the administrative step of suspension until the ESU and CMC considered the allegation and advised the District how to proceed."
[136]
"Ms Greenwood's actions in withdrawing services from Yaralla Place were subsequently assessed by the CMC and ESU as potential official misconduct and referred back to the Queensland Health, and subsequently the District, to take appropriate action."
[137]
[32] In a later affidavit, sworn on 1 October 2007, Ms Winsor deposed that once she became aware of Ms Greenwood's letter of 18 April 2007, Ms Winsor contacted Yaralla Place staff to ascertain their understanding of whether speech pathology services were still being provided there. She repeated her earlier assertion that their understanding as reported to her was that all speech pathology services had been withdrawn.
[138]
[33] Mr Keim's first contention[25] is that Ms Winsor should have disqualified herself from participating in the pending disciplinary proceedings against Ms Greenwood because of apprehended bias through prejudgment. He claims that the primary judge erred in finding that apprehended bias through prejudgment was not demonstrated.
[139]
[34] Mr Keim accepts that the primary judge rightly identified the appropriate test as whether a fair-minded, properly informed member of the public might reasonably apprehend that the decision-maker might not bring an impartial mind to bear on the decision. He contends, however, that the judge erred in applying that test to the facts of this case. The judge, Mr Keim submits, failed to take into account Ms Winsor's concluded views expressed in her email of 4 May 2007[26] in which she treated Ms Greenwood's letter of 18 April 2007[27] as "advising that speech pathology services to Yaralla Place have been withdrawn". He emphasises that in neither Mr Murnane's nor Ms Dennis's emails of 30 April[28] and 1 May 2007[29] respectively did the authors state that services had been withdrawn. Ms Winsor's email of 4 May 2007 shows she jumped to the conclusion that the effect of Ms Greenwood's letter was that services had been or were being withdrawn; her email states that she reached that conclusion after discussions with Mr Murnane and Ms Dennis and suggests that this was their view of the effect of Ms Greenwood's letter when their emails do not suggest this.
[140]
[35] Mr Keim submits that a review of the correspondence and evidence set out earlier in these reasons might cause a fair-minded observer to reasonably apprehend that by 4 May 2007 Ms Winsor had determined that Ms Greenwood had withdrawn speech pathology services from Yaralla House. That is what she said in her email of 4 May 2007. He contends that the correspondence[30] demonstrates that Ms Winsor was not interested in undertaking any impartial investigation to determine whether Ms Greenwood did purport to withdraw or limit services to Yaralla Place after 18 April 2007. She suspended Ms Greenwood on 11 May 2007[31] without giving her the opportunity to put forward her account. After receiving the explanations in the letter of 17 May from Ms Greenwood's solicitor,[32] Ms Winsor sent the show cause letter on 30 July 2007[33] without hearing directly from Ms Greenwood.
[141]
[36] Mr Keim acknowledges the primary judge's recognition that Ms Winsor's show cause letter to Ms Greenwood of 30 July 2007 and her email of 4 May 2007 "do look to assume that [Ms Greenwood's] letter to Ms Dennis [of 18 April 2007] portended a contraction of services at Yaralla Place, despite the claim in [Ms Greenwood's solicitors'] 17 May letter that this was not what Ms Greenwood meant to convey".[34] His Honour then referred to a passage from Minister for Immigration & Multicultural Affairs v Jia Legeng.[35] In his oral submissions, Mr Keim retracted the concern stated in his written submissions that those principles had no application to the present case. Mr Keim contends, however, that the primary judge's approach was inconsistent with this Court's decisions in Ambrey v Oswin[36] and Ivers v McCubbin & Ors.[37] He argues that the judge should have concluded that Ms Winsor's email of 4 May 2007 and her letter of 30 July 2007 demonstrated that she might not bring an impartial mind to bear on Ms Greenwood's pending disciplinary proceeding and should have granted Ms Greenwood's application.
[142]
[37] As I apprehend Mr Keim's oral submissions on this point, they are that the format of the letter of 30 July 2007 makes plain that the passage:
[143]
"Your action of withdrawing this service created a potential for risk to the residents of the Yaralla Place facility and potentially compromised the safety of those residents and had the capacity to incorrectly represent that Queensland Health did not have the capacity or the willingness to provide its normal service to this facility. Your failure to consult in relation to the service is also evidence of your failure to work as a team member"
[144]
is not an allegation but a statement of Ms Winsor's concluded view on these matters. He submits that this, on its own or in combination with his other submissions, demonstrates apprehended bias.
[145]
[38] Ms Winsor's email of 4 May 2007, on its own, does suggest that, at that time, she considered that Ms Greenwood in her letter dated 18 April 2007 purported to withdraw speech pathology services from Yaralla Place. But that is not determinative of the prejudgment issue. In deciding the question of Ms Winsor's apparent bias arising from her email of 4 May 2007, fairness requires that the email of 4 May 2007 be considered in its full context. All the relevant circumstances must be considered, including Ms Winsor's role and duties as District Manager responsible for the administration of the Fraser Coast Health Service: Webb v The Queen;[38] Laws v Australian Broadcasting Tribunal[39] and Jia Legeng.[40] In sending the email of 4 May, Ms Winsor was obviously keen to reassure those affected by and anxious about Ms Greenwood's letter that speech pathology services had not been withdrawn; that no approval had been given to withdraw those services; and that services continued to be made available to patients who needed them for safety, nutrition and hydration.
[146]
[39] Ms Winsor's letter of 11 May 2007, particularly the portions I have emphasised,[41] made clear that it set out mere allegations, in respect of which Ms Winsor sought Ms Greenwood's response.
[147]
[40] Ms Winsor's letter of 30 July 2007, particularly the portions I have emphasised,[42] makes crystal clear that she considers the complaints in the letter about Ms Greenwood are allegations yet to be established. The words "allegations" or "alleged" are used at least ten times. The letter gives formal notice to Ms Greenwood of the allegations against her and invites her response. Ms Winsor states in the letter that she has given careful consideration to all evidence available to her "so far in respect of the allegations" and that it "appears" to her that Ms Greenwood "may" be liable to disciplinary action under s 87 of the Act. In respect of the concern raised by Ms Greenwood's lawyer, that Ms Winsor may be potentially biased against Ms Greenwood, Ms Winsor stated:
[148]
"I do not believe I am biased, and nor have I ever acted in a way which might suggest that I am not impartial. I believe that I am fully capable of making decision regarding your employment in an impartial and objective way."
[149]
Later, Ms Winsor added "no determination has been made, or will be made until you have had the opportunity to formally respond to the allegations".
[150]
[41] Mr Keim's suggestion that the format of the 30 July 2007 letter demonstrates prejudgment on the part of Ms Winsor is a nit-picking and unrealistic interpretation which would not appeal to a fair-minded, properly informed member of the public. Everything which follows the sentence "Further details of the allegations against you are below" until the heading "Opportunity to Respond" are clearly allegations.
[151]
[42] Further, Ms Winsor gave uncontradicted evidence in her affidavit of 6 September 2007 in these terms:
[152]
"I am aware of my obligations to make any decisions in relation to disciplinary action impartially and without bias. I intend to make any decision regarding Ms Greenwood's actions in this manner. I have not yet made any decision regarding Ms Greenwood's actions. Ms Greenwood has been asked to provide a response to a number of relatively straightforward operational questions. If Ms Greenwood provides an appropriate explanation for her actions, that will be the end of the matter."
[153]
[43] When examined in the appropriate and full context, the primary judge's conclusion that Ms Winsor's views stated in the email of 4 May 2007 were tentative, is plainly right: Jia Legeng;[43] Laws[44] and Johnson v Johnson.[45] Her statements in the email did not suggest that she was closed to persuasion as to the real or intended effect of Ms Greenwood's letter of 18 April 2007 or as to whether speech pathology services were withdrawn as a result of it. It was necessary that Ms Winsor fully inform Ms Greenwood of the allegations so that she had the opportunity to meet them, which she did in the letters of 11 May and 30 July 2007. Even if the view could fairly be taken that Ms Winsor expressed a tentative or preliminary view, that is not enough to demonstrate apprehended bias: Vakautu v Kelly[46] and Antoun v The Queen.[47]
[154]
[44] The present case is clearly distinguishable from Ambrey v Oswin. There, the show cause notice unambiguously expressed the view that the appellant was the person who had sexually assaulted the complainant.[48] Similarly, this Court's decision in Ivers v McCubbin & Ors is distinguishable from the present case. There, the decision-maker expressed the view that the "investigation 'has substantiated a number of the allegations against [the appellant]'". It is clear in the present case that the allegations are awaiting the completion of the investigation and a subsequent determination.
[155]
[45] A fair-minded, properly informed member of the public would not reasonably apprehend from the email of 4 May 2007 or the letters of 11 May and 30 July 2007 that Ms Winsor might not bring an impartial mind to bear on the decision to be made by her about disciplinary action against Ms Greenwood under s 87 of the Act because of prejudgment. This ground of appeal fails.
[156]
[46] Mr Keim next submits that the primary judge, in rejecting the contention of apprehended bias, failed adequately to take account of the possible effect on a fair-minded, properly informed member of the public of the history of industrial disputation between Ms Greenwood and Ms Winsor over a two year period.[49] He emphasises the following matters in support of his contention.
[157]
[47] The first dispute commenced in April 2005 over Ms Greenwood's concern about the validity of a restructuring proposal of the District. The proceedings in the QIRC initiated by Ms Greenwood's notice of dispute of 22 July 2005 settled.
[158]
[48] Ms Greenwood then filed a second QIRC dispute notice on 10 February 2006 about the propriety of the purported implementation of the review. This second notice related to a time during which the District was entirely under Ms Winsor's administration. It stated that although the review of the District was to be a top priority and a report by 31 August 2005 was anticipated, no report was provided until mid-December 2005 and only after her lawyers had written specifically to the Director-General. Ms Greenwood suggested in the dispute notice that Queensland Health had not met the terms of resolution of the first dispute notice so that the review was flawed.
[159]
[49] During a dispute conference at the QIRC on 23 February 2006, the lawyer appearing on behalf of the District, on instructions from Ms Winsor, accused Ms Greenwood of interpreting the resolution of the first dispute (which imposed a duty to co-operate in the review process) as "including a right to obstruct the process before it begins". He also accused Ms Greenwood's solicitor of making a false statement. He referred to Ms Winsor bringing to the QIRC "a series of allegations about the level of consultation or good faith of the district" when this was "really unwarranted ... and unnecessary". During a dispute conference at QIRC on 31 March 2006, the District's solicitor referred to an exchange of correspondence between the District and Ms Greenwood's lawyers as to Ms Greenwood's concerns about the terms of reference "which was pretty detailed and in some cases fairly florid on both sides perhaps".
[160]
[50] Ms Winsor in her affidavit of 1 October 2007 admitted that she misunderstood the terms of resolution of the first dispute. As a result, the review's terms of reference arising from the resolution were not developed in consultation with Ms Greenwood's input, as required by the resolution. When the QIRC commissioner pointed this out to Ms Winsor at the first conference regarding the second dispute, she realised her error and explained that it was inadvertent. The second dispute was resolved by consent orders made in the QIRC on 7 April 2006 which provided for a much more regulated review process than the first.
[161]
[51] On 17 March 2006, the District's solicitor wrote to Ms Greenwood's solicitor claiming that Ms Greenwood refused to meet with her manager, Ms Cekulis.[50] Ms Greenwood's solicitor reported to Ms Greenwood that in April 2006 the District's solicitor told Ms Greenwood's solicitor that Ms Winsor had received allegations against Ms Greenwood; some suggested fraud, while others concerned her work performance and physical whereabouts at work. Ms Greenwood responded in a letter through her solicitors dated 28 April 2006 that she felt these allegations were "nothing but a contrived and very deliberate attempt to intimidate [her] and undermine [her] professional and personal reputation". In her response, Ms Greenwood also alleged unprofessional conduct against Ms Cekulis and another District employee, Ms Oram, suggesting that Ms Winsor needed "to rethink her current allegiance to these two managers". Ms Greenwood deposed that she did not receive any response to her letter.
[162]
[52] In a letter to the QIRC of 14 September 2006, the District sought its assistance in resolving:
[163]
"a. the ability for management to communicate with Ms Greenwood in the normal course of workplace management supervision; and
[164]
that Ms Greenwood cease obstructing the strategy resourcing and direction of the department; and
[165]
Ms Greenwood's co-operation and compliance with her employer's lawful and reasonable instructions."
[166]
The letter also alleged that material filed by Ms Greenwood's solicitor as a stage 3 grievance was "yet another attempt to halt the review process" and that:
[167]
"ongoing service delivery in community and allied health will continue to be compromised due to Ms Greenwood's refusal to engage in discussions or take direction from supervisory staff."
[168]
[53] On 5 October 2006, in another conference before a QIRC commissioner, the District's lawyer noted that:
[169]
"on the 17th August 2006 Ms Greenwood, through [her solicitor], sent what was described as a stage 3 grievance. ...
[170]
... the grievance itself was made in the form of an implicit threat of legal proceedings against the Director General and in the grievance itself there's an explicit threat of proceedings in order to resolve ... Ms Greenwood's concerns."
[171]
The District's lawyer stated that an issue of difficulty was that Ms Greenwood had refused to go to meetings so that patient care was not being properly discussed, evaluated and co-ordinated; she refused to meet with her supervisor, Ms Cekulis; she had withdrawn from the mediation process explicitly and implicitly; she had failed to attend team meetings; the District would not be able to tolerate that situation; there would have to be some action one way or another to resolve it; Ms Greenwood's failures appeared likely to be a breach of an undertaking. By contrast, Ms Greenwood's lawyer referred to the District's "scurrilous allegations" and claimed that the process was beginning to "look suspiciously like a collateral attack on Ms Greenwood for lodging a grievance". He referred to the District's "odours of allegations of misconduct and it's a fairly strong odour in the document that's been sent to this Commission".
[172]
[54] On 9 October 2006, the District filed a notice of dispute with the QIRC raising fresh allegations of inadequate performance against Ms Greenwood. It repeated that she was failing to communicate effectively and reasonably with her supervisors; had failed to attend a number of internal meetings to discuss clinical and operational matters without providing reasons for her absence; her supervisors must be able to have discussions with her in the interests of routine administration and patient care; without communication with her, the work unit was facing dysfunctionality which could potentially disadvantage patients. On 27 October 2006 this dispute was resolved on terms including a proposed process of mediation between Ms Greenwood and Ms Cekulis.
[173]
[55] Mr Keim submits that this history of disputation between the parties, and especially the similarity between the previous dispute with Ms Cekulis and Ms Greenwood and the allegations in the letter of 30 July 2007 of inefficiency in carrying out duties and inaccuracy in reporting, would demonstrate to the informed fair-minded observer a perception of bias on the part of Ms Winsor.
[174]
[56] Mr Keim also submits that the primary judge wrongly concluded that Ms Greenwood had not met the test identified in Smits v Roach[51] of identifying the necessary logical connection between the prior history of disputation with Ms Winsor and the feared deviation from impartial decision-making. A reasonable bystander, Mr Keim submits, could conclude that because of the vigorous history of dispute between the parties, Ms Winsor would not be well-disposed to Ms Greenwood when considering later allegations of misconduct. He argues that the present disciplinary action against Ms Greenwood could be, in part at least, a replay of Ms Cekulis's earlier allegations brought in a different forum.
[175]
[57] As Ms Winsor has been Ms Greenwood's District Manager since 2005, it was likely that they would have had a prior relationship of some sort by the time of the 30 July 2007 letter. It is significant that Ms Greenwood's history of dispute with her employer pre-dated Ms Winsor taking on the role of District Manager. It is also noteworthy that at the time of the resolution of Ms Greenwood's first dispute notice with the QIRC, Ms Greenwood's solicitor spoke positively of Ms Winsor, noting "the goodwill that seems to have been shown" by her.
[176]
[58] Mr Keim has expressed concern about statements made by Ms Winsor's lawyers during the QIRC dispute conference on 31 March 2006 in respect of Ms Greenwood's second notice of dispute. That dispute primarily concerned whether the review conducted by Queensland Health conformed with the terms of reference laid down by the QIRC in the resolution of the first dispute, and, in particular, whether there had been adequate consultation with Ms Greenwood. This issue is unrelated to the possible disciplinary action under s 87 of the Act which Ms Greenwood now faces. The parties settled the dispute contained in the second notice by an agreement which was subsequently implemented on the part of the District by Ms Winsor. The comments of the District's solicitor were made in the hurly-burly of a dispute conference over an entirely different and unrelated dispute. They could not cause a fair-minded, properly informed member of the public to reasonably apprehend that Ms Winsor might not bring an impartial mind to bear on the decision whether to take disciplinary action arising from, first, Ms Greenwood's letter said to be withdrawing services from Yaralla Place and, second, her alleged inefficiency in carrying out her duties and inaccurate reporting of them.
[177]
[59] The letter of 17 March 2006 also related to a quite different matter (advising Ms Greenwood of her responsibility to meet with her direct manager, Ms Cekulis, to discuss operational issues without a support person being present) to the allegations set out in the show cause letter of 30 July 2007 at the heart of this appeal (whether Ms Greenwood is liable to disciplinary action under s 87 of the Act for the reasons set out in the letter of 30 July 2007). Ms Winsor's letter of 17 March 2006 was in moderate terms. It identified and respected Ms Greenwood's legal rights as to any grievance or performance management process, but distinguished the need for Ms Greenwood, as a speech therapist, to meet with her direct manager to discuss day-to-day operational issues. The March 2006 letter certainly does not suggest any lack of impartiality on the part of Ms Winsor.
[178]
[60] As to the discussions between the District's lawyer and Ms Greenwood's lawyer in April 2006 as to the allegations made against Ms Greenwood, it is significant that these discussions were not authorised by Ms Winsor. As the primary judge recognised,[52] this does not suggest that Ms Winsor had formed a concluded view about the truth of those allegations. It is also noteworthy that, when Ms Winsor received Ms Greenwood's response to them, she proposed mediation to address the communication issue between Ms Greenwood and Ms Cekulis. Further, no part of the hearsay allegations regarding Ms Greenwood's work performance raised by the District's lawyer with Ms Greenwood's lawyer in April 2006 were part of the allegations contained in Ms Winsor's show cause letter to Ms Greenwood of 30 July 2007.
[179]
[61] The District's notice of dispute filed in the QIRC on 9 October 2006 and the matters listed in the District's letter to the QIRC of 14 September 2006 also related to the communication difficulties between Ms Greenwood and her direct manager, Ms Cekulis. It had nothing to do with the allegations in the crucial 30 July 2007 letter. The parties resolved this dispute in late October 2006, nine months beforehand. The matters referred to by Mr Keim in the dispute notice of 9 October 2006 all related to Ms Greenwood's relationship with Ms Cekulis. None of them, either alone or in combination with each other and with the additional matters relied on by Mr Keim, would give a fair-minded member of the public cause for concern that Ms Winsor might not bring an impartial mind to bear on the matters for decision arising from the 30 July 2007 letter.
[180]
[62] The matters relied on by Mr Keim as demonstrating apprehended bias by previous association have no close logical connection with the impartial decision-making to be carried out by Ms Winsor in determining the allegations set out in the letter of 30 July 2007. Ms Greenwood has not satisfied the second step necessary to establish apprehended bias requiring Ms Winsor's disqualification from the decision-making process: see Smit v Roach;[53] Ebner.[54] This ground of appeal also fails.
[181]
[63] The primary judge also rejected Ms Greenwood's contention that Ms Winsor should be disqualified from determining the allegations in the show cause letter of 30 July 2007 because of apprehended bias as she was effectively witness, complainant and judge. Mr Keim submits that the judge erred in rejecting that contention. He argues that the history of the relationship between Ms Greenwood and Ms Winsor leaves room for real doubt that the allegations concerning Yaralla Place would be determined only on the content of Ms Greenwood's letter of 18 April 2007. He further contends that any investigation of the allegation that Ms Greenwood withdrew services from Yaralla Place must involve Ms Winsor as a witness in the cause which she has to judge because she would have to evaluate evidence of other employees about what happened prior to Ms Greenwood's suspension. In her affidavit sworn 6 September 2007, Mr Keim emphasises, Ms Winsor considered that it appeared from Ms Greenwood's letter of 18 April 2007, that Ms Greenwood had withdrawn speech pathology services from Yaralla Place and that Ms Winsor was told by Ms Dennis and Mr Murnane that that was their belief and understanding. Mr Keim submits that Ms Winsor's claim that Ms Dennis and Mr Murnane told Ms Winsor this was not supported by Mr Murnane's email to Ms Dennis of 30 April 2007[55] or Ms Dennis's email to Ms Cekulis and Ms Winsor of 1 May 2007.[56]
[182]
[64] Mr Keim further submits that Ms Winsor's letter of 30 July 2007 places her as a central witness in the allegations contained in that letter. The letter accuses Ms Greenwood of failing to discuss the action she took, or the operational or workload issues which prompted her to take the action, with the District Manager (Ms Winsor), despite being repeatedly requested to communicate in relation to these issues. It alleged that Ms Greenwood's:
[183]
"action of withdrawing this service created a potential for risk to the residents of ... Yaralla Place ... and potentially compromised the safety of those residents and had the capacity to incorrectly represent that Queensland Health did not have the capacity or the willingness to provide its normal service to this facility."
[184]
[65] Mr Keim contends that Ms Winsor, as District Manager, would be required in respect of all these matters to both give evidence and to consider the veracity, weight and impact of that evidence.
[185]
[66] Similarly, Mr Keim contends that, inevitably, Ms Winsor would be a witness as to Ms Greenwood's alleged inefficiency and inaccurate reporting. He emphasises particularly the following extract from the letter of 30 July 2007:
[186]
"If true, your actions have serious consequences, including:
[187]
difficulties for the District in ensuring we have the best match between the demand for special therapy services and our available resources;
inaccurate information for the purposes of setting funding priorities;
difficulties for the District in attempting to manage your workload and the times you are present at work and make sound decisions in relation to your employment."
[188]
[67] Mr Keim submits that Ms Winsor's position as District Manager makes her evidence on these matters central to and critical in the determination of the allegations against Ms Greenwood, making her witness, investigator and judge. He submits that a reasonable bystander may well consider that Ms Winsor might not safely mix these functions and, for that reason, ought not try.
[189]
[68] Like the primary judge,[57] I am not satisfied that the decision-making process to be carried out by Ms Winsor, identified in the letter to Ms Greenwood of 30 July 2007, was one which was Ms Winsor's "cause". The letter makes plain that Ms Winsor, as District Manager, was responsible for determining, after having considered any response from Ms Greenwood, whether termination of her employment may be appropriate. The letter explained that, if Ms Winsor reached that conclusion, she was then required to refer the matter to the General Manager, Central Area Health Service, who alone could make that final determination. Ms Winsor's role in the disciplinary proceeding was a clearly delineated professional one with a statutory basis[58] in which she had no apparent personal interest. It was not Ms Winsor's "cause".
[190]
[69] The first allegation in the 30 July 2007 letter is that Ms Greenwood's letter of 18 April 2007 purported to withdraw services from Yaralla Place. There is nothing at this stage to show that the investigation of that issue will make Ms Winsor a witness in the investigation which she has to determine. Ms Winsor may consider evidence from Ms Dennis and Mr Murnane together with evidence and submissions that Ms Greenwood might put forward. Importantly, Ms Winsor stated in the letter of 30 July 2007 and in her later affidavits that she would be impartial and unbiased in the determinations she will be required to make. On the material before this Court, Ms Winsor, as District Manager, is well-placed to assess whether:
[191]
"withdrawing [the] service created a potential for risk to the residents of ... Yaralla Place ... and potentially compromised the safety of those residents and had the capacity to incorrectly represent that Queensland Health did not have the capacity or the willingness to provide its normal service to this facility."
[192]
[70] The remaining allegations in the 30 July 2007 letter are that Ms Greenwood was inefficient in carrying out her duties and inaccurate in reporting on them. Potential serious consequences to the District from those allegations if established are listed in the letter. It is true that these are all matters about which the District Manager could be expected to be knowledgeable. But that does not mean Ms Winsor should be disqualified. The Act contemplates that the necessary authority to carry out the pending investigation of the present allegations may be delegated to a District Manager like Ms Winsor.[59] A fair-minded observer would appreciate that Ms Winsor has a responsibility to carry out her delegated duties under the Act. The Act does not provide for initial determinations like this to be made by a separate independent tribunal.[60] It contemplates an internal disciplinary process in which the chief executive delegates authority, in this case to the District Manager, Ms Winsor, to make a decision as to whether an employee, in this case Ms Greenwood, is liable to have her case referred to the General Manager for a final decision in relation to termination of employment. Ms Winsor will not refer the case to the General Manager unless, after having considered Ms Greenwood's response and all relevant evidence and material, she considers that termination of Ms Greenwood's employment may be appropriate. The disciplinary framework set up by the Act anticipates that there may be some prior association between the initial decision-maker and the officer concerned and that this decision-maker may have personal knowledge of the background of the investigation and relevant operational and managerial matters. This is not sufficient to demonstrate apprehended bias on the part of Ms Winsor.
[193]
[71] Ms Greenwood's contention, that a fair-minded, properly informed member of the public might reasonably apprehend that Ms Winsor might not bring an impartial mind to bear on the decision she has to make because she may be a witness in her own cause, is not made out. This ground of appeal also fails.
[194]
[72] Mr Keim makes a number of related submissions suggesting that the approach taken by the primary judge in refusing Ms Greenwood's application was flawed. In particular, he argues that the primary judge paid too much heed to Ms Winsor's subjective circumstances and adopted a test closer to that for actual bias than for apprehended bias.
[195]
[73] Whilst I am not persuaded that his Honour did err in this or any other way, I have independently considered the evidence before the primary judge (which was entirely contained in affidavits) in the light of Mr Keim's many submissions. The fact that Ms Greenwood had previously criticised Queensland Health, and that Ms Winsor had some involvement in previous different disputes between Ms Greenwood and Queensland Health, does not mean that Ms Winsor must be disqualified from determining the present allegations because of apprehended bias towards Ms Greenwood. Ms Winsor's relationship with and approach to Ms Greenwood prior to the show cause letter of 30 July 2007 was demonstrably professional and courteous. At times, she appeared to express concern for Ms Greenwood's well-being, for example, in email correspondence between them in March and April 2007.[61] Ms Winsor was obliged to inform Ms Greenwood of the current allegations to give her an opportunity to respond. She did so in the show cause letter of 30 July 2007 in a way which made abundantly plain that these were mere allegations awaiting Ms Winsor's subsequent determination. Ms Winsor's approach to date has not been heavy-handed. It does not suggest any failure on her part to appreciate the onerous responsibility on her in investigating these matters and the significance of any adverse findings in respect of Ms Greenwood's professional career. It is plainly in the best interests of all stakeholders that Ms Winsor should now be permitted to perform her responsibilities as soon as possible.
[196]
[74] For these reasons and for those I have set out earlier, I have concluded, independently of the primary judge, that none of the matters raised by Mr Keim individually or in combination would lead a fair-minded, properly informed member of the public to reasonably apprehend that Ms Winsor might not bring an impartial mind to bear on the decision she has to make in respect of the allegations contained in the show cause letter to Ms Greenwood of 30 July 2007. It follows that the appeal should be dismissed with costs to be assessed.
[197]
[75] FRASER JA: I agree with the order proposed by the President and with her Honour's reasons for the order.
[198]
[76] CULLINANE J: I agree for the reasons given by the President in this matter that the appeal should be dismissed with costs.
[199]
[1] The parties have so far proceeded on the basis that this Act applies to Ms Greenwood's case. The Public Service Act 1996 (Qld) has been repealed by the Public Service Act2008 (Qld), assented to on 11 June 2008 with all provisions effective from 1 July 2008. The transitional provisions, s 236 and s 238 of the latter Act, allow for the former Act to apply in this case.