ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW
– PROCEDURAL FAIRNESS – BIAS – APPREHENSION
OF BIAS –
where public official exercising a statutory decision-making power - where
Source
Original judgment source is linked above.
Catchwords
ADMINISTRATIVE LAW – JUDICIAL REVIEW – GROUNDS FOR REVIEW– PROCEDURAL FAIRNESS – BIAS – APPREHENSIONOF BIAS –where public official exercising a statutory decision-making power - whereApplicant seeks order restraining furtherparticipation in disciplinaryproceedings on the grounds of apprehended bias.Public Service Act 1996, s 87, s 88, s 90Ambrey v Oswin [2005] QCA 112AWG Group Ltd v Morrison[2006] EWCA Civ 398[2006] 1 WLR 1163Barbosa v Di Meglio [1999] NSWCA 307BellCanada v Canadian Telephone Employees Association [2003] 1 SCR884Bolkiah v The State of Brunei Darussalam [2007] UKPC62Ebner v Official Trustee in Bankruptcy [2000] HCA 63(2000) 205 CLR337Flaherty v National Greyhound Racing Club [2005] EWCA Civ 1117
Gascor v Ellicott [1997] 1VR 332
Gillies v Secretary of
State for Work & Pensions [2006] EWCA Civ 392
[2006] 1 WLR 781
Helljay Investments Pty
Ltd v Deputy Commissioner of Taxation [1999] HCA 56
(1999) 74 ALJR 68
Helow v
Advocate General for Scotland [2007] ScotCS CSIH-5
Hot Holdings Pty
Ltd v Creasy [2002] HCA 51
(2002) 210 CLR 438
Johnson v Johnson [2000] HCA 48
(2000) 201 CLR
488
Lawal v Northern Spirit Ltd [2003] UKHL 35
Minister for
Immigration v Jia Legeng [2001] HCA 17
(2001) 205 CLR 507
Minister for Resources
Ex
parte Cazaly Iron Pty Ltd [2007] WASCA 175
Mokbel v DPP (Vic) &
(Cth) [2007] VSCA 195
Morton v The Transport Appeal Board [2007]
NSWSC 1454
Muir v Commissioner of Inland Revenue [2007] NZCA 334
[2007] 3 NZLR
495
R v Abdroikof [2007] UKHL 37
Re Finance Sector Union of
Australia
ex parte Illaton Pty Ltd [1992] HCA 30
(1992) 66 ALJR 583
Re Minister for
Immigration and Multicultural Affairs
Ex parte Epeabaka [2001] HCA 23
(2001) 206 CLR
128
Re Minister for Immigration and Multicultural Affairs
ex parte Miah
(2001) 206 CLR 57
Re Refugee Review Tribunal
ex parte H [2001] HCA 28
(2001)
75 ALJR 982
Smits v Roach (2006) 227 CLR 423
State of Victoria v
Psaila and Lamb [1999] VSCA 193,
Stollery v Greyhound Racing Control
Board [1972] HCA 53
(1972) 128 CLR 509
United States v Holland (9th
Cir, March 17, 2008) No. 06-30258, 2008 U.S. App. Lexis 5642
Wewaykum
Indian Band v Canada [2003] 2 SCR 259
Judgment (225 paragraphs)
[1]
ADMINISTRATIVE LAW - JUDICIAL REVIEW - GROUNDS FOR REVIEW - PROCEDURAL FAIRNESS - BIAS - APPREHENSION OF BIAS - where public official exercising a statutory decision-making power - where Applicant seeks order restraining further participation in disciplinary proceedings on the grounds of apprehended bias.
[1] Quaneta Greenwood is employed by the State Government as a speech pathologist. As a Public Service officer, she has worked in the Fraser Coast Health Service District ("the District") of the Department of Health ("Queensland Health") since 1982. Kerry Winsor, another State public servant, is the District Manager.
[31]
[2] By letter dated 30 July 2007,[1] Ms Winsor informed Ms Greenwood that she may be liable for disciplinary action under s 87 of the Public Service Act 1996 ("the Act"). By this application for a statutory order of review, Ms Greenwood seeks an order restraining Ms Winsor from taking "part in the investigation, hearing and determination" of those disciplinary proceedings on the basis that a reasonable apprehension of bias exists in respect of Ms Winsor's continuing involvement in that process.
[32]
"(1) The employing authority may discipline an officer if the authority is reasonably satisfied that the officer has
[33]
(a) performed ... duties carelessly, incompetently or inefficiently; or
[34]
contravened, without reasonable excuse, a provision of ... a code of conduct ..."
[35]
[4] For Ms Greenwood, the "employing authority" is the Chief Executive of Queensland Health.[2] Relevantly, "misconduct" means "disgraceful or improper conduct in an official capacity".[3]
[36]
"(1) In disciplining an officer, the employing authority may take the action ... that the authority considers reasonable in the circumstances.
[37]
(3) The authority may, for example, do any 1 or more of the following
[38]
(b) reduce the officer's classification level and change the officer's duties accordingly.
[39]
[6] Ms Winsor has delegated authority to examine the allegations in the 30 July letter, to evaluate any information Ms Greenwood supplies in answering them, to impose a penalty less than termination of employment and, should she consider termination warranted, make such a recommendation to a superior officer for decision.
[40]
[7] From 1996, Ms Greenwood's work as a speech pathologist has been with adults. In 1997, another speech pathologist, Diana Hecker, was recruited to attend to paediatric cases in the District.
[41]
[8] In February 2005, Mike Allsopp, then District manager, announced a restructuring of the District's Community and Allied Health Services. In April 2005, the new organizational structure began to be implemented.
[42]
[9] Troubled by the reorganization, Ms Greenwood retained solicitors to convey her concerns to Graeme Prideaux, a senior employee relations officer with Queensland Health's Corporate Human Resources and Industrial Relations Policy and Strategy Centre. Her solicitor, Ms Moriarty, sent Mr Prideaux a draft Notice of Industrial Dispute with a letter proposing settling the dispute before its referral to the Queensland Industrial Relations Commission ("QIRC"). The Notice and an accompanying affidavit contained many criticisms of the process that had resulted in the reorganization, the re-arrangements effected, and the choice of people appointed to the positions created.
[43]
[10] By this time, the reorganization had been partially implemented, Mr Allsopp was absent on leave, and Ms Winsor had been appointed to act in his place, initially for one month.
[44]
[11] Mr Prideaux relayed Ms Greenwood's concerns to Ms Winsor. She thought they appeared valid. She informed Ms Moriarty that she had placed a moratorium on the selection process for a team leader position and had directed that a review of the restructure be undertaken. Ms Moriarty wrote to Ms Winsor thanking her for "speedy intervention". The letter sought an assurance that Ms Greenwood could speak with the officers conducting the review, raised concerns about appointments yet to be made to team leader positions, and asked that Queensland Health pay Ms Greenwood's legal expenses.
[45]
[12] Ann Cekulis had been appointed Director, Community and Allied Health Services by Mr Allsopp. Ms Cekulis was Ms Greenwood's supervisor.
[46]
[13] Ms Cekulis wrote to Ms Greenwood proposing a meeting to discuss new positions. Ms Moriarty wrote to Ms Winsor, Ms Cekulis's immediate superior, saying that Ms Greenwood was uncertain whether she should raise her concerns about those positions at the meeting, and asking why the meeting had been called given the impending review. Ms Winsor had not replied by 15 July when Ms Moriarty wrote again, complaining about the lack of a response and reiterating concerns about the review. Ms Moriarty said that if she did not hear from Ms Winsor she would assume that Ms Winsor was not interested in discussing the issues. Ms Winsor did not respond by the time Ms Moriarty specified.
[47]
[14] Ms Winsor had been occupied with serious issues. She also had over 1,000 orthopaedic patients to deal with. She was not able to arrange the review restructure immediately. She was also not familiar with the facts surrounding the restructure. Mr Allsopp was overseas. He had not briefed her. And she expected to be acting District Manager for only a month before returning to the Central Highlands Health Service District.[4] She did not want to take steps hastily.
[48]
Ms Moriarty emailed Mr Prideaux to say that things appeared "to be going from bad to worse". He responded promptly, listing the things Ms Winsor had done to accommodate Ms Greenwood's concerns. He also asked whether it would help if Ms Winsor spoke with Ms Greenwood. Ms Moriarty's reaction was to file a Notice of Industrial Dispute with the QIRC seeking the appointment of an independent reviewer and an undertaking that the reorganization would be stayed until the many issues raised by the Notice had been resolved.
[49]
On hearing of the QIRC referral, Ms Winsor appointed solicitors. Those solicitors wrote to Ms Moriarty pointing out that a suitable reviewer of the restructure had been appointed, a moratorium was in place for the selection process for vacant positions pending the review, and the District would consult further with staff, including Ms Greenwood, before continuing with any restructure. The letter proposed an adjournment of the QIRC conference until completion of the review. The request was refused.
[50]
[17] In early August, the dispute was conciliated by Commissioner Edwards. Ms Winsor did not attend. At the conference, the District's lawyers announced that Rod Boddice was to conduct the review, and that draft terms of reference had been developed. The conference was adjourned to let the parties negotiate.
[51]
[18] Ms Winsor met Ms Greenwood on 10 August. Also present were Jenne Oram, who had been appointed a team leader with increased administrative responsibility, Christine Lister, Human Resource Manager of the District, and Mr Prideaux. Ms Moriarty participated by telephone. Discussion, though primarily focussed on the restructure and its ramifications, was wide-ranging. Topics canvassed included Ms Winsor's suggestion that a one day "team building exercise" be arranged to minimize tensions and build co-operation. The next day, Ms Moriarty wrote to Ms Winsor expressing pleasure that the exercise was to take place.[5]
[52]
The dispute conference reconvened with the additional participation of the Queensland Public Sector Union. Mr Reed, the barrister instructed by Ms Moriarty, described the meeting two days earlier as positive. All Ms Greenwood's concerns had been addressed through the consensus. Mr Reed also spoke of "goodwill ... shown today by Ms Winsor" flowing through into the terms of resolution proposed. He expressed the hope that the parties would not return to reinvigorate the dispute.
[53]
"2. A review of all aspects of the Allied health and community health functions within the Fraser Coast Health Service District (FCHSD) be conducted by Mr Rod Boddice ...
[54]
The terms of reference for this review will be developed by FCHSD with input from both parties, which will be tabled and discussed at the next District Consultative Forum prior to finalisation;
The terms of reference will seek recommendations in relation to matters including:
[55]
(f) clinical processes of care and clinical guidelines;
[56]
All parties and all FCHSD employees must cooperate with the review, including meeting with the reviewer as required and providing any information reasonably requested by him."
[57]
[22] Ms Greenwood was not offered input into finalization of the terms of reference for the review. Of more concern to her in August 2005, however, were the outcome of the review and problems she was having working with Ms Oram. Ms Moriarty wrote pressing for the review to be completed soon, concerned that "stakeholders" were exploiting Ms Winsor's "understandable pre-occupation with larger crises ..."
[58]
[23] Mr Boddice interviewed Ms Greenwood in September. In November, she heard that he had delivered his report. Ms Moriarty asked that it be sent to Ms Greenwood before general release. This would have departed from established practice. Such reports are usually delivered to the District Manager before release to a District Consultative Forum ("DCF") - a group that includes representatives from unions and management.
[59]
[24] Ms Moriarty wrote to the Director-General of Queensland Health complaining that Ms Greenwood had not seen Mr Boddice's report. She argued that there were compelling reasons why Ms Greenwood should see it, including that she had paid more than $5,000 in legal fees to secure the review.
[60]
[25] The report was tabled at the DCF in mid-December and then given to District staff, including Ms Greenwood.[6] The report raised four organizational options. Ms Winsor released it with an assurance that determination of the appropriate option would be undertaken after a process to be initiated in 2006.
[61]
Ms Greenwood wrote to the Director-General complaining about the report. She believed that it failed to address any of her concerns about the restructure. She also said that "change management" in the District "is frequently attempted by intrigue and bullying". Appointments to team leader and other positions were criticized. She asked to meet with the Director-General, accompanied by her solicitor and Ms Winsor.
[62]
The Director-General's reply noted Ms Greenwood's worries about "alleged bullying, management processes and the review report". It recorded the Director-General's understanding that the District intended to consult with affected parties before implementing any option Mr Boddice had raised. Ms Greenwood was encouraged to "fully participate in the planning processes and subsequent implementation activities" and to provide Ms Winsor with particulars of the bullying and harassment so that, if necessary, an investigation could be initiated.
[63]
[28] Two days later, Ms Moriarty filed another Notice of Industrial Dispute with the QIRC. It asserted that Mr Boddice had misdirected himself about the nature of his review, that the report did not conform with the terms of reference, and that there had been no consultation with Ms Greenwood regarding the options discussed in the report.
[64]
[29] Ms Winsor received the dispute notice with a letter from Ms Moriarty complaining that Ms Cekulis had drafted a new speech pathologist Position Description without consulting Ms Greenwood. Ms Greenwood had told Ms Cekulis of her concerns but the draft had not been amended. That draft, Ms Moriarty announced, was "one of a raft of matters now in contention".
[65]
[30] The first conciliation conference for the second dispute was held before Commissioner Brown on 23 February, 2006. Ms Moriarty and Ms Greenwood were there. Also present were an Australian Workers Union representative, lawyers for the District, and Mr Prideaux. Ms Winsor and Ms Lister participated by phone.
[66]
[31] Ms Moriarty drew attention to the Terms of Resolution. Ms Greenwood, she said, had spoken to Mr Boddice about matters that should have been included as terms of reference. Ms Moriarty argued that Mr Boddice had misconceived the nature of his review: the terms of reference had not been agreed, and Mr Boddice should not have assumed that the Terms of Resolution prescribed the terms of reference.
[67]
[32] The District's solicitor, Mr Williams, adverted to one of the Terms of Resolution - that which obliged employees to co-operate with the review - and described Ms Greenwood's conduct in pursuing her dispute in the QIRC as indicating that she thought she had a "right to obstruct the process before it begins". He referred to an "unwarranted" "series of allegations" on Ms Greenwood's behalf about the District's "level of consultation and/or good faith".
[68]
[33] Apparently in the mistaken impression that Mr Boddice was to be involved in developing the terms of reference, the Commissioner invited Mr Williams to consider item 3 of the Terms of Resolution which, the Commissioner supposed, "weren't honoured by Mr Boddice". Mr Williams answered: "it's entirely untrue ...". It would have been better to have pointed out that Mr Boddice had no part to play in settling his terms of reference. However, Mr Williams seems not to have grasped that Ms Greenwood's major complaint was that she was supposed to have further input into the terms of reference, arguing that she had already contributed to formulating them: through paragraph 4 of the Terms of Resolution.
[69]
[34] Ms Winsor intervened to say that she had previously understood that the "Terms of Resolution were the terms of reference". The discussion before Commissioner Brown had exposed this mistake which, she deposes, was "inadvertent".
[70]
[35] Commissioner Brown accepted that Ms Greenwood was justifiably upset that the terms of reference had been finalized without hearing from her, in contravention of the Terms of Resolution. Anticipating that negotiations should be productive, he suggested that Ms Moriarty give Mr Williams a list of her concerns so that talks could try to resolve the differences.
[71]
[36] At about this time, Ms Greenwood's performance at work received attention from Ms Winsor, who was particularly worried by an absence of effective communication between Ms Greenwood and Ms Cekulis.
[72]
[37] On 8 March, Ms Moriarty emailed Ms Cekulis recording her understanding that Ms Greenwood had been asked to attend a meeting with Ms Cekulis that day. Ms Moriarty asked to be advised of "the meeting agenda so that I can advise my client as to whether I need to be on standby to provide her advice". About a week later, another email requested that a meeting between Ms Cekulis and Ms Greenwood be rescheduled so that Ms Greenwood could arrange for a "support person" to be present. Ms Cekulis was also asked to ensure that Ms Greenwood would be given time to have Ms Moriarty or a union representative "on standby".
[73]
"your client has refused to meet with her manager [Ms Cekulis] to discuss operational issues ...
[74]
... whilst our client supports and encourages your client's right to have a support person present during any grievance or performance management process, the effective operation of the District and the provision of patient services are being affected by your client's refusal to meet with her direct manager to discuss day-to-day operational issues.
[75]
Please advise your client that, as an employee, she must co-operatively meet with other District employees to discuss operational issues, without a support person being present."
[76]
[39] Ms Greenwood emailed Ms Cekulis saying that she would meet with her:
[77]
"providing I know the agenda and who will be present. I reserve my right to have my nominated support person present, to have the meeting minuted and to review those minutes ... I will also tape the meetings so that there are no misunderstandings about what was said ..."
[78]
[40] The QIRC conference resumed in March. Mr Williams said that correspondence about the terms of reference, which was "in some cases fairly florid on both sides perhaps", had brought the parties to "joint realisations", including that Ms Greenwood was to contribute to the terms of reference. Ms Winsor said she was happy to "work through" things in a "co-operative manner". On that note, the hearing adjourned to enable negotiations to be concluded.
[79]
[41] Before the end of March, what Ms Winsor calls "potential performance issues" involving Ms Greenwood had also been raised. These included reporting of statistics and car usage. Ms Winsor sought advice from Ms Lister, Mr Prideaux and lawyers. It was decided to include in the consent order that would reflect the compromise of the issues agitated before Commissioner Brown an assurance that, pending implementation of review recommendations, "all staff ... shall undertake their duties in the appropriate professional manner with due regard to accountability and the public's confidence in Queensland Health".
[80]
[42] When the Commission resumed in April, a consent order resolved the dispute. There was to be a review of the Community and Allied Health functions in the District. New terms of reference were to be developed "in consultation with all relevant stakeholder parties", including staff and union representatives. Pending implementation of review recommendations, the status quo organizationally was to be maintained. The assurance about staff performing their duties professionally was included in the order.
[81]
[43] Mr Prideaux had used his contact with Ms Moriarty during the negotiations to raise the work performance issues. Ms Greenwood heard about this from Ms Moriarty and sent a detailed response to Mr Prideaux. Ms Winsor had not formed a view about the rights and wrongs. Nor had she authorized Mr Prideaux to discuss the issues with Ms Moriarty. When she read Ms Greenwood's response, however, she decided to propose mediation, mainly to address the "communication issue" between Ms Greenwood and Ms Cekulis.
[82]
[44] On 3 May, Ms Greenwood learned that recruitment of a new speech pathologist was proceeding even though the appointment was associated with the restructuring. About a week later, Ms Moriarty wrote to Mr Prideaux complaining about Ms Cekulis, and asking him to impress upon Ms Winsor how important it was that District staff understood the consensus ratified by the QIRC. Ms Moriarty thought that Ms Greenwood was being unfairly accused of having abused the QIRC. "I would like Ms Winsor to put a stop to this vilification of Quaneta Greenwood", she wrote.
[83]
[45] Mr Prideaux's response conveyed Ms Winsor's belief that dialogue should commence between Ms Greenwood and Ms Cekulis "to address current management and operational aspects of speech pathology services". The letter recorded that Ms Winsor now had a deeper understanding of Ms Greenwood's reluctance to meet with Ms Cekulis and proposed that meetings between the two of them occur with a mediator.
[84]
[46] By 21 July, Ms Greenwood had decided to participate in mediation with, as Ms Moriarty put it, "a great deal of trepidation, anxiety, scepticism and vigilance". Mr Prideaux was asked to note that drafting a new description for Ms Greenwood's position might turn into a process which meant that she could not obtain it. That was "not an outcome that will be tolerated without significant controversy", wrote Ms Moriarty. Mr Prideaux sent a conciliatory response.
[85]
[47] The first mediation had not been held when, on 17 August, Ms Greenwood lodged a "Stage 3 Grievance" with the Director-General. There were complaints about Ms Cekulis and Ms Oram. The Grievance also contended that the District had "taken ... five months to find two people" to review the restructure. One outcome sought was that Ms Winsor "be prevailed upon" to appoint reviewers urgently. Ms Greenwood also wanted the Director-General to understand that "constant surveillance, professional undermining and open disparagement" were "having physical and psychological consequences" for her.
[86]
[48] Ms Winsor became aware that Ms Greenwood was not attending "some team meetings". Largely because of communication difficulties between Ms Greenwood and Ms Cekulis, Ms Winsor could not determine the reason for this. But she was concerned about impact on "client services". She also felt that she was unable to decide whether Ms Greenwood's workload was unreasonable.
[87]
[49] Yvonne Li was Queensland Health's acting Principal Adviser, Human Resources Branch. Ms Winsor talked to her about how to resolve the communication and workload issues. Ms Li decided to write to the QIRC asking that the previous conference be reconvened. Her letter said that, while significant progress had been made in complying with the consent orders, "we continue to face obstructions by Ms Greenwood". It continues:
[88]
Before and since the last conference on 7 April 2006, FCHSD 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.
[89]
In light of the fragile state of personal relationships with the Community and the Allied Health workforce at the FCHSD,
[90]
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. Despite agreeing to attend the mediation with her supervisor Ms Cekulis, Ms Greenwood has not withdrawn her agreement by the submission of a stage 3 'grievance'.
[91]
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.
[92]
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.
[93]
Qld Health seeks the assistance from the Commission in the resolution of the following matters:
the ability for management to communicate with Ms Greenwood in the normal course of workplace management and supervision; and
[94]
that Ms Greenwood cease obstructing the strategy, resourcing and direction of the department; and
Ms Greenwood's co-operation and compliance with her employer's lawful and reasonable instructions.
[95]
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."
[96]
[50] Ms Li drafted the letter without Ms Winsor's "specific and direct input". And Ms Winsor did not give instructions for it to be sent. But Ms Winsor was the source of the information that Ms Li used to compose it.
[97]
[51] At about this time, the new reviewers interviewed Ms Greenwood. She gave them documents and discussed matters that she wished to raise about the reorganization. That day, Ms Moriarty wrote to the Director-General asking when a response might be received to the Grievance. The letter also complained that those staff of the District who wanted "one on one" discussions with the reviewers were denied that opportunity, instead being required to meet in organized groups. As "stakeholders", staff were entitled to speak to the reviewers "without fear of reprisal", Ms Moriarty wrote. Her letter added:
[98]
"I believe District Manager Winsor should be asked to provide that reassurance to all staff".
[99]
[52] Ms Li's attempt to reconvene the earlier dispute in the QIRC was resisted. Ms Moriarty wrote arguing that that dispute had been resolved, conveying Ms Greenwood's instructions to oppose any resumption of the hearing on the ground that the QIRC, "as far as this dispute is concerned, is functus officio".
[100]
[53] On 5 October, the parties were before Commissioner Brown. He was told that he was not being invited to decide the rights and wrongs but to deal with the difficulty that Ms Greenwood refused to meet with Ms Cekulis: a matter of broken "workplace communication".
[101]
[54] Ms Greenwood and Ms Winsor were there to hear Mr Reed object that the earlier dispute had been resolved: the Commissioner was functus officio. Mr Williams said that Ms Greenwood refused to meet with Ms Cekulis and that Ms Winsor had identified a communication issue involving the two women. Declining to attribute blame for this lack of effective communication, Mr Williams spoke of an "impasse" that had to be resolved. Ms Winsor, he said, "simply can't allow it to continue ...".
[102]
[55] Mr Reed complained about "odours of allegations of misconduct" against Ms Greenwood in Ms Li's letter, contending that what she had written would not conduce to a conciliatory atmosphere. It consisted of "scurrilous allegations", including that the Grievance was an attempt to halt the review process.
[103]
[56] Saying that "a spade does have to be called a spade", Mr Williams referred to paragraphs in Ms Li's letter, including a contention that service delivery would be compromised because of Ms Greenwood's "refusal to engage in discussions or take direction from supervisory staff".
[104]
[57] Ms Winsor participated by phone. She said she did not know why Ms Greenwood would not attend meetings scheduled for the first Thursday each month. If the explanation was "workload", Ms Winsor would help. She also spoke about her desire to establish "operational" meetings between Ms Cekulis and Ms Greenwood where a patient could be discussed. She was troubled that her District was being forced into formal notifications of meetings, agendas, with lawyers or union representatives present "simply to have a discussion about a day to day operational matter", which was making it "increasingly difficult to run the service".
[105]
[58] Realizing that QIRC involvement in the difficulties could be enlivened by a new dispute notice, and observing that all "the parties are here", Commissioner Brown encouraged an attempt at resolving the issues. But the functus officio point was maintained, and sustained. If the QIRC were to help, a fresh notice had to be furnished.
[106]
[59] Four days later, a differently couched Notice of Industrial Dispute was filed on behalf of the District. The subject matter included Ms Greenwood's "failing to communicate effectively and reasonably with her supervisors and managers, in particular Ms Anne Cekulis". She, it was contended, had failed to attend meetings to discuss clinical and operational matters without providing reasons for her absence. Her supervisor has to be able to discuss such things with her in the interests of patient care.
[107]
[60] On 24 October, Ms Greenwood attended a meeting where more than 30 District staff were present, in person or by video-link, to hear the reviewers speak about their recommendations concerning the restructure.
[108]
[61] Three days later, a QIRC conference was convened by Commissioner Brown. The meeting concluded with consensus on 14 point Terms of Resolution fashioned to facilitate communication between Ms Greenwood and Ms Cekulis, including mediated meetings once a week for six months. Ms Greenwood was required to provide monthly reports on her clinical activities.
[109]
[62] The first mediated meeting took place on 15 November 2006.
[110]
[63] Ms Moriarty wrote to the Director-General complaining about Ms Li's letter. Because Ms Li had labelled Ms Greenwood "obstructive" and her Grievance as "yet another attempt to obstruct the review process", Ms Moriarty objected that Ms Li lacked the impartiality necessary to be involved in managing the Grievance.
[111]
[64] Professor Wilson, Acting Director-General of Queensland Health, wrote rejecting the suggestion that Ms Li lacked impartiality. Adding that Ms Greenwood had not raised her Grievance locally as required by a Directive, Professor Wilson said that it would be referred to Ms Winsor "as the appropriate decision maker to manage this grievance at the local level". The letter also proposed that allegations of inappropriate conduct towards Ms Greenwood be particularized and notified to Ms Winsor so that she could investigate them. The letter concluded by suggesting that, in view of the mediation process, Ms Greenwood might prefer to look to the future and not proceed with her Grievance adding:
[112]
"However, should Ms Greenwood elect to pursue her grievance I would appreciate Ms Greenwood advising Ms Winsor of her decision by providing particulars to support her allegations as soon as possible and within 14 days of the date of this letter."[7]
[113]
[65] On 22 January, Ms Moriarty wrote to Ms Winsor asking to see the review report. No mention was made of Professor Wilson's letter. Ms Winsor replied that she did not have the final report. When Ms Winsor received it, she sent it to Central Area Health Service for consideration. The report was given to the DCF on 14 March. It was then distributed to District staff, including Ms Greenwood.
[114]
[66] The mediator took leave in February. Ms Greenwood decided to have a support person present at future mediations. The next mediated meeting with Ms Cekulis occurred on 7 March.
[115]
[67] On 8 March, Ms Greenwood emailed Kerry Grant, Acting District HR Manager, referring to "robust" conversations with Ms Cekulis during a mediation. Ms Greenwood said she would be asking for a support person to be present at future mediations, adding "it's difficult to know what Ann can tell me to do because as I understand it she does not have a position description ... which would confirm her delegations ...". Ms Grant informed Ms Winsor.
[116]
[68] On 14 March, Ms Winsor sent Ms Greenwood a lengthy email which, among other things, spoke about Ms Winsor's being supplied with information about the hours Ms Greenwood worked. This communication confirmed that Ms Cekulis had been approved in the acting role of Director, Community and Allied Health, and that Ms Greenwood "reports" to her. The email went on:
[117]
"If you have a specific grievance in regards to any request that Ann may make of you that you think is unfair or unreasonable, I would encourage you to raise this with myself as the next level Manager in accordance with the Queensland Health grievance procedure."
[118]
[70] On 4 April, Ms Winsor emailed Ms Greenwood, confirming that Ms Greenwood had not furnished requested information nor sought an appointment to discuss workload or "time off in lieu" requirements. Ms Winsor asked for an urgent response so that she could assess the reasonableness of Ms Greenwood's workload. Ms Greenwood was also asked to confirm that she would attend a mediation with Ms Cekulis scheduled for 10 April. She concluded by saying that if Ms Greenwood preferred to meet with Ms Winsor in person, that should be arranged by the next day.
[119]
[72] On 23 April, Ms Winsor had a letter hand-delivered to Ms Greenwood. It recorded that Ms Greenwood had not read the 14 March and 4 April emails. It mentioned that records had to be kept by the employer of hours staff worked and that the hours Ms Greenwood worked should be addressed, especially as she had been observed working late. Ms Winsor asked to be told by 27 April what hours had recently been worked. The letter turned to the mediated meetings with Ms Cekulis. Many points were canvassed, including Ms Greenwood's failures to identify a support person to attend the mediation arranged for 10 April or to confirm that she would attend it. That mediation would have to be rescheduled
[120]
"with some urgency and you will be required to attend without a support person if you still have been unable to arrange or seek and obtain consensus on their attendance ... if you are reluctant to continue the mediated meetings, I shall need to reconsider a return to non-mediated fortnightly meetings between yourself and your Manager if this is your preference ... it will not be an option for me ... to support a position where meetings be they facilitated or otherwise do not occur between yourself and your Supervisor ...".
[121]
[73] That same day, Ms Greenwood despatched the letter[8] that has resulted in these proceedings. Addressed to Ms Dennis, Acting Director of Nursing at Maryborough Base Hospital, it said:
[122]
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.
[123]
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.
[124]
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.
[125]
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.
[126]
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.
[127]
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."
[128]
[74] Yaralla Place is a nursing home operated by Queensland Health. The District provides a full speech pathology service there.
[129]
[75] On 27 April, Ms Moriarty wrote to the Minister for Health. Her long letter makes many complaints, including: the new structure assigned Ms Greenwood paediatric patients; no consultation preceded the amalgamation; inability to get the review report until after the Director-General was approached; reviewers had not complied with the terms of reference; the District had not contributed to Ms Greenwood's legal expenses; the Grievance had alleged "trade union activity discrimination"; Ms Li had lodged the September "Notice"; matters had got worse since the October 2006 resolution; mediation had turned into "de facto" performance management despite assurances that the sessions would not be misused for such a purpose; Ms Greenwood's patient support officer had not been replaced; and about Ms Cekulis. Ms Moriarty finished by saying that she had advised Ms Greenwood that there was evidence "to establish a breach of the implied duty of trust and confidence and that ... she might consider instituting civil proceedings for breach of contract".
[130]
[76] On 27 April, Ms Winsor learned of Ms Greenwood's letter to Ms Dennis. Reading the letter, it seemed to Ms Winsor that Ms Greenwood had withdrawn speech pathology services from Yaralla Place.
[131]
[77] Ms Winsor spoke to Ms Dennis and to Mr Barry Murnane of Yaralla Place. They, she deposes, "both told me that they believed speech therapy services had been withdrawn". Ms Winsor considers that their understanding was confirmed by emails from Ms Dennis and Mr Murnane. Ms Winsor deposes:
[132]
"Ms Greenwood had not consulted with me, or to my knowledge any other senior manager with the appropriate authority, regarding any issues for 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]
[78] Also on 27 April, Ms Moriarty replied to Ms Winsor's 23 April letter. The response to Ms Winsor's concern that Ms Greenwood would not open her emails was that one of Ms Greenwood's colleagues, concerned about the volume of email traffic, had declared that he deleted emails not marked urgent; and yet he had not received such a letter from Ms Winsor as was sent to Ms Greenwood. The answer to the concern about hours worked was that, according to Ms Greenwood's AWU Industrial Officer, Ms Winsor herself worked outside standard hours. Ms Moriarty wondered whether Ms Greenwood was under surveillance authorized by Ms Winsor. A support officer had left and not been replaced. And it was said that Ms Greenwood tries to be at meetings she is directed to attend "fearing that if she fails, she will be hauled up again before" Commissioner Brown.
[134]
[79] Ms Moriarty wrote to Ms Winsor on 9 May. This letter commented on work hours issues, suggested that other staff had deleted emails to prioritize work, and contended that Ms Cekulis was trawling for complaints about Ms Greenwood's performance.
[135]
[80] By a letter on 11 May, Ms Winsor informed Ms Greenwood that her employment had been suspended, with pay, pending an investigation about speech pathology services at Yaralla Place. This letter said:
[136]
"Serious allegations have arisen concerning your professional conduct.
[137]
In a letter dated 18 April 2007, you advised Ms Penny Dennis ... 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:
[138]
○ 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
[139]
○ 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.
[140]
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.
[141]
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.
[142]
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.
[143]
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.
[144]
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.
[145]
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.
[146]
In order to maintain appropriate speech pathology services and ensure ongoing patient care, you are directed as follows:
[147]
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..."
[148]
[81] Ms Moriarty wrote on 17 May asserting that Ms Winsor had suspended Ms Greenwood:
[149]
"because of a Memorandum ... in which she did no more than suggest that an additional speech pathologist might be hired to deal with an increase in patient numbers. On the basis of this memo, you constructed apocalyptic scenarios in which patients were said to be imperilled and the District exposed to public criticism if news of the requirement for an additional part-time speech pathologist should reach the general public."
[150]
[82] The letter complained that Ms Greenwood had not been consulted about the memorandum before the suspension, that Ms Winsor had not responded to concerns Ms Moriarty had expressed on "numerous occasions about scandalising remarks" made about the QIRC, and that active steps to further the Grievance had not been taken, and continued:
[151]
"Ms Greenwood has formed the view that you cannot demonstrate the necessary degree of impartiality and neutrality in administering the 'show cause' process.
[152]
Not only is there the questionable nature of her suspension for an offence which assumes the worst of all possible outcomes without sufficient evidence to justify any of those scenarios, it is the case that you have in recent times -
[153]
refused to provide a copy of the Review Report to Ms Greenwood but simultaneously providing a priority copy to stakeholders who opposed its recommendations;
refused to further Ms Greenwood's grievance
cautioned her about being on work premises outside work hours when all manner of staff exercise that entitlement without constraint
instructed your IT section to covertly surveil Ms Greenwood's email
insisted on strict compliance with the TOIL policy in circumstances where you had been advised that her colleague was on leave and there had been no administrative assistance for 5 months
responded to these concerns by initiating 'show cause' proceedings and suspending her without the conduct of a preliminary investigation.
[154]
In the circumstances, we are requesting you to voluntarily stand down from any further involvement in these proceedings so that a decision-maker with demonstrated impartiality may be appointed to oversee the process."
[155]
[83] Next day, there was another letter from Ms Moriarty. It complained about the changing of locks on speech pathology offices. And Ms Greenwood's reputation, it was claimed, had been smeared by gossip and speculation. This signalled that Ms Greenwood had already been found guilty of misconduct and removed permanently from duty. Such impressions were said to "represent additional grounds" for Ms Winsor to stand aside from the investigation.
[156]
[84] Ms Moriarty's letters of 17 and 18 May were forwarded to the Ethical Standards Unit ("ESU"). The Crime and Misconduct Commission ("CMC") then became involved. Summarizing its understanding of the position as withdrawal by Ms Greenwood of speech pathology services without authority, failing to discuss that action with supervisor or District Manager, incorrectly representing Queensland Health's capacity or willingness to service Yaralla Place, and creating a risk of compromising the safety of patients, the CMC assessed the case as potentially constituting official misconduct. The ESU decided that the District had the capacity to manage the matter. So it was referred to Ms Winsor. She then wrote the letter of 30 July 2007.
[157]
[85] All seven grounds advanced in Ms Moriarty's letters of 17 and 18 May, 2007 to justify Ms Winsor's withdrawal from the disciplinary process lack substance.[9] And not one of them is now relied on to sustain an apparent bias case. Instead, three new grounds are proposed in the attempt to demonstrate that it might reasonably be feared that Ms Winsor might not bring an impartial mind to bear on her decisions about the allegations against Ms Greenwood. They are, put shortly, premature formation of a concluded view adverse to Ms Greenwood on issues to be investigated; Ms Winsor is "a witness in her own cause"; and prior association, particularly through "adversarial clashes" in the QIRC disputes, with criticisms of Ms Greenwood.
[158]
[86] The requirements of procedural fairness[10] on the part of a public official exercising a statutory power to do something that may affect another's rights or interests include an absence of bias, actual or apparent.[11]
[159]
[87] In evaluating the apprehended bias contentions, material factors include the non-curial character of the decision-making process, the significance of the decisions Ms Winsor might make, especially for Ms Greenwood's employment[12], and the tasks committed to an investigating employing authority's delegate by the Act.[13]
[160]
The test for apparent bias 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.[14]
[161]
The relevant fear is not as to the probability of a lack of impartiality. "The question is one of possibility (real and not remote)".[15] Still, a reasonable[16] apprehension of bias must be "firmly established".[17] "It is not enough that the reasonable bystander has a vague sense of unease or disquiet."[18]
[162]
The hypothetical fair-minded person by whose standards a suggested apprehension is to be assessed is reasonable, intelligent[19] and "neither complacent nor unduly sensitive or suspicious".[20]
[163]
[91] Whether a reasonable apprehension of bias might be entertained involves an inquiry that is "highly fact specific",[21] which means that "an allegation of apparent bias must be decided on the facts and circumstances of the individual case including the nature of the issue to be decided".[22]
[164]
[92] The application of the apprehension of bias principle involves two steps[23]. "First, the identification of what it is said might lead the decision-maker to decide the matters in issue other than on their merits. Secondly, an articulation of the logical connection between the matters in issue and the apprehended fear that those matters will not be decided on their merits." [24] "Only then can the reasonableness of the asserted apprehension of bias be assessed."[25]
[165]
[93] On Ms Greenwood's case, the hypothetical observer might reasonably suppose that Ms Winsor had prematurely formed a concluded view on the threshold allegation that she had withdrawn services from Yaralla Place. This contention is founded on the contents of Ms Winsor's 30 July letter, 4 May email and affidavit.
[166]
[94] Ms Winsor's language in the letter, it is said, proceeds on the footing that services had been withdrawn. She writes that "in a letter dated 18 April 2007, you advised Ms Penny Dennis ... that you were withdrawing the provision of speech pathology services to Yaralla Place". The withdrawal is stated as a fact; and that view of things underpins the allegations of service withdrawal without authority, failing to discuss withdrawal with Ms Winsor, and that Ms Greenwood's letter is misleading. Service withdrawal is also assumed in the allegation that "withdrawing this service created a potential risk to the residents of the Yaralla Place facility and potentially compromised the safety of those residents ...".
[167]
[95] In respect of the 4 May email, the essential contention is that Ms Winsor's choice of expression shows that she has conclusively prejudged a critical question: whether the letter to Ms Dennis "on its face, represents an unequivocal withdrawal of services from Yaralla Place"[26], as Ms Winsor's email puts it.[27]
[168]
An impression that Ms Winsor might bring a biased mind to decisions on the Yaralla Place allegations is said to be reinforced by passages in her affidavit, such as:
[169]
"From the face of Ms Greenwood's 18 April letter ... it appeared that Ms Greenwood had withdrawn speech pathology services ...
[170]
Ms Dennis and Barry Murnane ... both told me that they believed speech therapy services had been withdrawn from Yaralla Place. This understanding is confirmed in their emails ...
[171]
If Ms Greenwood had withdrawn speech pathology services, as it appeared ....
[172]
I considered that Ms Greenwood's apparent actions in withdrawing services from Yaralla Place potentially constituted official misconduct ...
[173]
it was my understanding ... that Ms Greenwood had withdrawn speech pathology services at Yaralla Place."
[174]
[97] The 30 July letter and 4 May email do look to assume that the letter to Ms Dennis portended a contraction of services at Yaralla Place, despite the claim in Ms Moriarty's 17 May letter that this was not what Ms Greenwood meant to convey. But
[175]
"Decision-makers ... sometimes approach their task with a tendency of mind, or predisposition ... 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.
[176]
The state of mind described as bias in the form of prejudgment is one so committed to a conclusion already formed as to be incapable of alteration, whatever evidence or arguments may be presented. Natural justice does not require the absence of any predisposition or inclination for or against an argument or conclusion."[28]
[177]
[98] The 30 July letter, 4 May email and affidavit do not show that Ms Winsor might bring a closed mind to the meaning or significance of the letter to Ms Dennis. Rather the documents disclose that there are matters to be examined that now lie in the realm of allegation, not conclusions to which Ms Winsor is committed.
[178]
[99] The letter is replete with references to "allegations" rather than determinations. The ESU and CMC are recorded as having reviewed "the allegations relating to the withdrawal of the services to Yaralla Place". Then the purpose of the letters is revealed: "to give you formal notice of the allegations against you and to invite your response". Ms Winsor writes that "it appears that you may be liable for disciplinary action ..." on "evidence available to me so far in respect of the allegations". Particulars of the "withdrawal of services from Yaralla Place" case appear beneath a statement that describes them as "further details of the allegations against you ...". Three lines below, it is said that "the allegations ... are ...". The CMC and ESU are said to have thought that "your action in withdrawing services" without authority, "if established", could constitute official misconduct. Later: "copies of all material to be considered" in connection with the "allegations" about Yaralla Place and inefficiency "are enclosed". Next, the letter states that no determination will be made until Ms Greenwood has had the opportunity to respond to the allegations. It invites her "to respond in writing to these allegations". And the letter[29] does not indicate that this invitation might be some pointless "mere formality"[30].
[179]
[100] The 4 May email does reflect Ms Winsor's understanding of the purport of the letter to Ms Dennis. But neither in terms nor tenor does it evidence a reasonable apprehension that no explanation Ms Greenwood may supply could shake Ms Winsor from that initial impression.
[180]
[101] That is also true of the passages in her affidavit relied on against Ms Winsor.
[181]
[102] The contents of the three documents do not establish reasonable apprehension of bias through prejudgment in connection with Yaralla Place.[31]
[182]
[103] A point is also made about allegations of inaccurate reporting and inefficiency. These are said to be "without any pretence of the language of allegation".[32] Reference is made to such expressions in the 30 July letter, as: "it appears that the locum is providing all of the ... services in less than 20 hours per week ..."; "I have concerns that you have been ... inefficient"; "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 ... service ... provided by you"; "if true, your actions have serious consequences ...". None of this reveals a real possibility of a closed mind on the issues.
[183]
[105] Matters arising out of Ms Winsor's participation in earlier managerial decisions affecting Ms Greenwood are relied on to suggest apprehended bias deriving from a potential for Ms Winsor to be the source of significant information bearing on issues to be investigated. This prospect is said to put Ms Winsor, "in the realm of the dispute", making it "impossible for a dispassionate observer to have faith" in her ability "to judge the issues fairly and objectively."[33]
[184]
[106] Reference is made to Ms Winsor's allegation that Ms Greenwood did not discuss withdrawing services from Yaralla Place "with the district manager" or any operational or workload issues that prompted her to take that action "despite being repeatedly requested to communicate in relation to those issues".[34] Secondly, charges of inefficiency and inaccurate reporting relate to Ms Winsor's "demands" for Ms Greenwood to detail her working hours. By 30 July 2007, a concern about long hours has, it is contended, "transmuted to a concern about inflated reporting".[35] And Ms Winsor is said to find herself "at the centre of the dispute" - "witness, complainant and judge".[36]
[185]
Ms Winsor's has no personal stake in the investigation. She is managing an internal disciplinary process. That is her responsibility, as the observer postulated would appreciate. But it is not her cause. More importantly, there is no controversy about material historical facts to which her own knowledge could be germane.
[186]
The 30 July letter indicates that Ms Winsor proposes to examine several issues concerning Yaralla Place, mainly whether:
[187]
the letter to Ms Dennis announces a withdrawal of speech pathology services - seemingly, an exercise in interpreting the document; [37]
[188]
if the letter bears that construction, it: was given without authority and without discussion with Ms Cekulis and Ms Winsor; is misleading in the alleged respects; created potential for harm; demonstrates "failure to work as a team member"; and exposes Ms Greenwood to disciplinary action on any of the nominated bases.
[189]
[109] Ms Greenwood maintains that many of the Yaralla Place allegations are based on misunderstandings of her letter to Ms Dennis. On her case, the letter does not say or imply that any service to Yaralla Place was to be reduced.[38] The evidence, however, makes it plain that she accepts that she was not authorized to send any letter that notified a reduction in services. Nor does she suggest that she had broached reducing services with Ms Winsor or discussed with her any workload issues that may account for the letter. And she does not dispute that she was asked more than once to communicate with Ms Winsor about workload and did not do so.
[190]
There is no contest about those things. So Ms Winsor will not be a "witness" concerning them.[39]
[191]
[112] The third ground on which Ms Winsor's disqualification is sought is based on what her case characterizes as a "history of disputation"[40] between Ms Winsor and Ms Greenwood, especially in connection with "adversarial clashes"[41] in the second and third QIRC disputes. The focus is on Ms Li's letter and complaints it made about Ms Greenwood's motives, her conduct and its consequences for District services; things said by Mr Williams at QIRC hearings; and concerns about Ms Greenwood's work performance, especially those ventilated by Mr Prideaux with Ms Moriarty in April, 2006.
[192]
[113] A decision-maker in public service internal disciplinary proceedings does not have to be free from prior association with the employee under investigation.[42] Nonetheless, the nature and extent of the relations between Ms Winsor and Ms Greenwood are to be considered in deciding whether apparent bias has been established. For :
[193]
"In some cases, a reasonable apprehension of bias may arise simply from the close connection of a decision-maker with a person who may be affected by the outcome of the decision ... In Webb v The Queen .... Deane J said that an apprehension of bias could arise from a relationship or direct experience of contact, with persons interested or involved in the decision ... However ... no conclusion of apprehended bias by association can be drawn until the court examines the nature of the association, the frequency of contact, and the nature of the interest of the person associated, with the decision-maker. It is erroneous to suppose that a decision is automatically infected with an apprehension of bias because of the pecuniary or other interest of a person associated with the decision-maker. Each case must turn on its own facts and circumstances."[43]
[194]
[114] In April 2006, Mr Prideaux took it upon himself to raise with Ms Moriarty issues about Ms Greenwood's performance that Ms Winsor had discussed with him. Ms Moriarty told Ms Greenwood of the concerns. Ms Greenwood wrote to Ms Winsor, giving her side of the story. After that, nothing more happened. Ms Greenwood's case, however, portrays this uneventful episode as grave.
[195]
[115] It is said that Ms Winsor's "preparedness to receive and retail such allegations as part of negotiations to resolve an industrial dispute, followed by a complete failure to acknowledge the explanations provided would raise concern in a reasonable employee as to the ability of the supervisor to deal, objectively, with a subsequent set of allegations." This state of affairs is said to be "aggravated" by an affidavit by Ms Winsor which "now accuses Mr Prideaux ... of raising these same allegations without authority", thereby putting her in a "situation that to defend her own conduct in the earlier dispute with the employee ... she insists on being able to judge, she has to accuse her own employee relations expert of acting without instructions. The first respondent has invested a great deal in her struggle to ensure that she is the one who judges the applicant".[44]
[196]
The facts cannot sustain such an emotionally hypersensitive interpretation of events.
[197]
[117] Months before the suspension, at QIRC hearings, the District's solicitor said some harsh words about Ms Greenwood's conduct:[45] "inflammatory statements made, purportedly, on instructions from"[46] Ms Winsor, is how Ms Greenwood's case characterizes the lawyer's advocacy.
[198]
[118] Before Commissioner Brown, about 15 months before the suspension, Mr Williams claimed that Ms Greenwood had obstructed the Boddice Review and made unwarranted allegations about the District's "level of consultation or good faith".[47] A month later, he referred to "fairly florid... perhaps"[48] correspondence passing in the meantime. On that occasion, Ms Winsor said that she would "work through" things in a "co-operative manner".[49] That happened. A consent order resolved the second dispute. Seven months before the suspension, at the conference where the functus officio point defeated Ms Li's attempt to reconvene the hearings, Mr Williams said such things as that there was an impasse that needed to be resolved in communications between Ms Cekulis and Ms Greenwood. And he did not disclaim Ms Li's fiery letter, referring the Commissioner to it. At this conference, Ms Winsor offered to help with Ms Greenwood's workload if it was the reason why she was not attending meetings. Within the month, the parties concluded the 14 point mediated meetings pact.
[199]
What might the fair-minded member of the public make of this?
[200]
A few harsh words were spoken by the advocate months earlier in the context of an attempt to involve an industrial tribunal in resolving communication issues that seemed to the employer to jeopardize patient care. The observer would also note Ms Winsor's commitment, which she fulfilled, to work co-operatively with Ms Greenwood; that all three industrial disputes were compromised; and that none related to Yaralla Place or the allegations of inefficiency and inaccurate reporting to be investigated.
[201]
The observer with the assumed attributes[50] adopts "a balanced approach"[51] in evaluating the relevant risk. From such a perspective, what Mr Williams said at QIRC hearings would not suggest a real possibility that Ms Winsor might not bring an impartial mind to bear on her decision about the allegations to be investigated.
[202]
[122] Ms Li's letter to the QIRC asked that Ms Greenwood "cease obstructing the strategy, resourcing and direction of the department". It contended that her Grievance was obstructing the review process. It accused her of "resisting efforts to communicate with" Ms Cekulis and of "compromising service delivery".
[203]
[123] The document, it is said, "amounted to an attack on the bona fides of the applicant"[52] On Ms Greenwood's case, this letter is so serious that, "on its own", it places Ms Winsor "outside the bounds of any reasonable perception of objectivity concerning anything to do with"[53] Ms Greenwood.
[204]
Written eight months before the suspension, the letter is highly critical of Ms Greenwood's conduct - unfairly so, at least in one respect: she had probably not designed her Grievance to obstruct the review. More to the point, its caustic tone bespeaks exasperation, especially at Ms Greenwood's unwillingness to meet, except on her terms, with Ms Cekulis.
[205]
Ms Winsor did supply Ms Li with the information on which she relied to compose her letter, which suggests that Ms Li may well have been reflecting Ms Winsor's view of things: in particular, disappointment that Ms Greenwood continued to put obstacles in the path of mediated meetings with Ms Cekulis and anxiety about adverse consequences for patients.
[206]
The observer, however, would not overlook what Ms Greenwood and Ms Moriarty made of the letter. They are not slow to criticize Queensland Health staff. And they did complain to the Director-General about Ms Li. Because of her letter, they insisted that she not participate in management of the Grievance. But when Professor Wilson said that it was being referred to Ms Winsor for action, there was no complaint, which rather suggests that their own assessment was that the excesses of Ms Li's letter were not a true reflection of Ms Winsor's attitude.
[207]
Such a perception would be strengthened by other factors. First, solicitors Ms Winsor instructed substituted another Notice for the letter. That Notice is moderately expressed. Secondly, in her letters in May last year, Ms Moriarty raised many grounds for seeking Ms Winsor's recusal. Ms Li's letter was not among them.
[208]
In any event, within a few weeks, all issues were resolved by the 14 point consensus. People then moved on.
[209]
In the result, Ms Li's letter does not evidence a reasonable apprehension of bias on Ms Winsor's part in respect of the allegations to be investigated.
[210]
[130] The second industrial dispute exposed a mistake by Ms Winsor: thinking that the Terms of Resolution prescribed the terms of reference for the Boddice Review. Ms Greenwood makes a point about this: "... being shown to be 'inadvertent' ... in a florid exchange of correspondence is not likely to make one well disposed to that employee".[54]
[211]
The insinuation that Ms Winsor harbours resentment finds expression in another argument:
[212]
"the great pains to which ... [Ms Winsor] is prepared to go to stay involved in the disciplinary process raises its own questions about [her]. What possible reason could she have to so want to investigate and decide this matter. The only rational explanation is that she does, in fact, hold the personal animus about which the objective observer would be concerned, namely, that the issues concerning the applicant are personal as far as [Ms Winsor] is concerned.[55]
[213]
[132] Ms Greenwood is suspended, with pay. Her workload is borne by others, including a locum. Legal expenses are being incurred by Queensland Health. There must be intangible costs while Ms Winsor is diverted by the misfortunes of litigation from productive work. In short, bother and expense attend her decision to conduct the disciplinary proceedings. In these circumstances, and as quite a few points are fervently agitated against her, Ms Winsor's reasons for standing firm merit scrutiny, particularly to see if her motives might be sinister.
[214]
[133] More than one reason could account for her decision not to stand aside.
[215]
[134] Optimistic legal advice may have contributed to the decision. For obvious reasons, however, this possibility is beyond exploration. Another consideration may be influential. On oath, Ms Winsor denies bias regarding Ms Greenwood. She deposes that she is aware of "my obligations to make any decisions in relation to disciplinary action impartially and without bias" and intends "to make any decision regarding Ms Greenwood's actions in this manner".[56] Perhaps Ms Winsor imagines that she confronts allegations of actual bias and feels obliged to defend against such a charge.
[216]
The dominant factor, however, is that the investigation has been delegated to her because she happens to be District Manager. It has become her workplace responsibility. A District Manager holds a standing delegation for disciplinary processes. So it is usual for Ms Winsor to conduct such proceedings in her District. She is, as Ms Winsor sees it, just doing her job.
[217]
[136] The evidence as a whole does not justify an inference that Ms Winsor might hold some grudge to cast a cloud over her impartiality.[57]
[218]
[137] The overall impression left by the "association" contentions needs to be considered lest cumulatively the case might reasonably present as having more impact than emerges from separate assessment of the various points. But it looks no better to the fair-minded observer in that light, in part because a balanced assessment must take into account other facets of the relationship.
[219]
[138] The observer, though oblivious to the character and ability of the particular decision-maker,[58] is permitted to assess relevant conduct. This includes assistance Ms Winsor has offered to Ms Greenwood. A couple of examples are illustrative. Two months before the suspension, Ms Winsor encouraged Ms Greenwood to raise with her any grievance about requests from Ms Cekulis.[59] About a month before the suspension, Ms Winsor invited Ms Greenwood to meet with her.[60] These supportive initiatives did not find favour with Ms Greenwood. Ms Winsor's attitude can scarcely be called into question on that account.
[220]
[139] Relations with Ms Greenwood have been managed by Ms Winsor calmly, patiently, with suitable detachment, and without animosity: in a word, professionally.
[221]
[140] All considered, the fair-minded, properly informed member of the public with the assumed attributes [61] would not think it a real possibility that Ms Winsor might not bring an impartial mind to her decisions concerning the allegations in the 30 July letter.
[222]
[141] The analysis to this point requires the conclusion that Ms Greenwood's case fails. Another consideration fortifies that result.
[223]
[142] Orally and in writing,[62] the respondents attached importance to the second of the two steps needed to establish apparent bias: articulating "a logical connection between the matter complained of and the feared deviation from impartial decision making":[63] that is, how it is said that the association between Ms Greenwood and Ms Winsor "might be thought (by the reasonable observer) possibly to divert [Ms Winsor] from deciding the case on its merits"?[64]
[224]
[143] Despite the emphasis given to this issue by the respondents, Ms Greenwood's case did not attempt to identify the necessary logical connection: it was not said why the association might reasonably be thought to impact on fair and impartial decision-making by Ms Winsor. It was not suggested, for example, that Ms Greenwood has become such an irritant that Ms Winsor might, even subconsciously,[65] be inappropriately inclined towards recommending termination of employment or disposed to favour an outcome which saw Ms Greenwood leave the District.