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[2026] QIRC 119
General information, not legal advice.
Queensland Industrial Relations Commission
2026-04-13
Dalton J
Original judgment source is linked above.
PUBLIC SECTOR APPEAL - EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY-Fair Treatment Appeal - appeal against disciplinary finding decision - where Appellant was employed as Assistant in Nursing - where two allegations substantiated - where Appellant admits first allegation and contests the second - consideration of whether decision was fair and reasonable - decision fair and reasonable - appeal dismissed.
Industrial Relations Act 2016 (Qld) ss 562B, 562C, 564
Public Sector Act 2022 (Qld) ss 91, 131
Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336
Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018)
Hill v State of Queensland (Queensland Health) [2026] QIRC 037
Lavercombe v Legal Services Commission [2023] QCAT 58
Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611
O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283
State of Queensland (Queensland Health) v Hume [2024] ICQ 3
State of Queensland (Queensland Health) v Nield [2025] ICQ 21
Wilson v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 245
[1] Ms Inge Hennessy is employed by Queensland Health as an Assistant in Nursing ('AIN') in the Macleay Ward at the Redlands Hospital from September 2024.[1] She had commenced employment with Queensland Health in 2022 as an AIN in Redlands Residential Care in the Acacia Unit.[2] Ms Hennessy is employed on a fixed-term temporary basis.
[2] On 7 February 2025 Ms Hennessy was suspended on full pay and on 27 February 2025 was asked to show cause as to why disciplinary findings should not be made against her pursuant to the Public Sector Act 2022 ('PS Act') in respect of two allegations.
On 19 January 2025, it is alleged you failed to show courtesy and respect towards your patient, when you yelled at her and told her repeatedly to "shut up."
a) On 19 January 2025, at or around 18:50, [the Patient] was observed sitting in the ward day room of Macleay Ward, Redland Hospital speaking out loudly. PID witnessed you repeatedly telling the patient words or words to the effect of "shut up, other people are sick of listening to your whinging".
b) After you were witnessed repeatedly telling the patient to "shut up", you then sat in the chair to the left side of the patient, and you leant over and told her "shut up".
On 19 January, it is alleged you acted inappropriately in your official capacity when you smacked [the Patient] with a television remote control.
a) On 19 January 2025, at or around 18:50, the Patient, was observed sitting in the ward day room of Macleay Ward, Redland Hospital speaking out loudly. PID witnessed you repeatedly telling the patient words or words to the effect of "shut up, other people are sick of listening to your whinging".
b) PID witnessed you repeatedly telling the patient to "shut up", you then sat in the chair to the left side of your patient, and you leant over and told her to "shut up".
c) The patient told you to "go away" and you were then witnessed by PID to smack the patient over her left hand with a Television remote.
d) The patient then screamed out words or words to the effect of "hey that hurt, get away from me". You then said to the patient words or words to the effect of "I'm sorry I didn't mean to hurt you", the patient replied to you with words or words to the effect of "just go away".
e) PID reported this incident to Ms Nisha George, Clinical Nurse, Macleay Ward, who was the team leader on duty in the ward at the time.
f) Ms George has provided a statement to Ethical Standards Unit **(**ESU) regarding the reported incident.
g) In summary Ms George advised the following:
- On 19 January 2025, she was in the nursing station when Ms Nicole Warren, Registered Nurse and PID came in.
- PID notified Ms George that they had witnessed a staff member (you) hit the Patient on the hand with a television remote control.
- Ms George went to the patient and checked her for injuries. Ms George observed that the patient had some bruising on her body, and that there was a small bruise on the posterior (back) of her left hand.
[4] A possible discipline ground for Allegation one was identified as 'contravention without reasonable excuse a relevant standard of conduct pursuant to s 91(1)(h) of the PS Act.'
[5] For Allegation two the Show Cause Letter stated:
Having considered the information currently available to me in respect of Allegation two, I consider that you may be liable to disciplinary findings on the following basis:
Pursuant to section 91(1)(b) of the PS Act, in that you may be guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the Act.
[6] On 20 March 2025, Ms Hennessy responded to the show cause notice via QNMU Law. In her response, Ms Hennessy admitted Allegation one but strenuously denied Allegation two.
[7] On 28 April 2025, Ms Hennessy received a letter dated 27 April 2025, from Mr Greg Nolan, Executive Director of the Bayside Health Service, substantiating both allegations ('the decision letter') and issuing a Notice to Show Cause on the proposed disciplinary action of termination.[5]
[8] On 19 May 2025, Ms Hennessy filed an Appeal in the Commission against the disciplinary finding decision arising from the second Allegation only. That is the subject of this Decision.
[9] Section 131 of the PS Act sets out the categories of decisions that may be appealed, with s 131(1)(d) providing for an appeal of a 'fair treatment' decision. The finding that a disciplinary ground exists for a person pursuant to s 91 of the PS Act is capable of being appealed as a fair treatment decision.
[10] Section 564(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') stipulates that an appeal must be lodged within 21 days after the day the decision appealed against is given. The Decision letter was received on 28 April 2025 and the appeal lodged on 19 May 2025, within 21 days of receipt.
[14] The question before me is whether the disciplinary finding decision with respect to Allegation two was fair and reasonable. This involves consideration of the decision arrived at, having regard to the information available to the decision-maker at the time the decision was made and the process followed.
[15] Section 562C of the IR Acts sets out the powers of the Commission to make orders disposing of an appeal. The Commission may confirm the decision appealed against,[12] set the decision aside and substitute another decision, or return the decision to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.[13]
[16] Ms Hennessy sought that I set the disciplinary finding decision aside and substitute it with a decision that finds allegation one is substantiated and allegation two is not substantiated, and that the disciplinary finding in respect of allegation one is referred back to Queensland Health for disciplinary action 'by way of management action.'[14]
[17] Queensland Health contended that the decision is fair and reasonable and sought dismissal of the appeal.
[18] For the following reasons, I find the decision appealed against was fair and reasonable. Even if that were not the case, it is inappropriate in an appeal on discipline findings to make any orders on proposed disciplinary action.
[19] Section 91 of the PS Act provides as follows:
(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
(a) engaged in repeated unsatisfactory performance or serious under performance of the employee's duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
(c) been absent from duty without approved leave and without reasonable excuse; or
(d) contravened, without reasonable excuse, a direction given to the employee as a public sector employee by a responsible person; or
(e) used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee's duties; or
(f) contravened, without reasonable excuse, a requirement of the chief executive under section 71 in relation to the employee's employment or secondment by, in response to the requirement -
(i) failing to disclose a serious disciplinary action; or
(g) contravened, without reasonable excuse, a provision of -
(i) this Act, other than section 39 or 40; or
(ii) another Act that applies to the employee in relation to the employee's employment; or
(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.
(4) To remove any doubt, it is declared that a disciplinary ground does not arise in relation to a public sector employee only because the employee's work performance or personal conduct fails to satisfy the work performance and personal conduct principles or the public sector principles.
(a) inappropriate or improper conduct in an official capacity; or
(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.
victimising another public sector employee in the course of the other employee's employment in the public sector
(i) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994; and
(b) for a public sector employee who is an ambulance officer under the Ambulance Service Act 1991, section 13(1) - includes a code of practice under section 41 of that Act; and
(c) for a public sector employee who is a fire service officer under the Fire Services Act 1990 - includes a code of practice under section 7B of that Act.
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or another law.
[20] Directive 05/23 Discipline relevantly provides that:
9.1 Section 98 of the Act provides that in disciplining a public sector employee, or former public sector employee, a chief executive must comply with the Act and this directive.
9.2 The chief executive must demonstrate consideration of conflicts of interest and ensure conflicts of interest are declared, monitored and appropriately managed by all parties to the disciplinary process.
(a) the chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding)
(b) written details of each allegation in clause 9.3(a) must include:
(ii) the particulars of the facts considered by the chief executive for the allegation
(iii) the disciplinary ground under section 91 of the Act that applies to the allegation
(c) when providing the written details required at clause 9.3, a chief executive should not include more than two possible disciplinary grounds for the same allegation. In making a disciplinary finding at clause 9.4, a chief executive must choose the most suitable ground for discipline as no more than one disciplinary ground is to apply to an individual substantiated allegation
(d) a copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 9.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence
(e) the chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension
(f) if the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 9.3(e) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
(a) the chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities
(b) the chief executive must advise the employee of the chief executive's finding in relation to each allegation included in the show cause notice on disciplinary finding
(c) for each finding in clause 9.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established
(d) the employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding. The employee should also be informed of the time limits for starting an appeal provided for in the Industrial Relations Act 2016 (IR Act) and the directive relating to appeals
(e) if the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 9.5) and/or management action implemented, or to take no further action. No more than one disciplinary ground is to apply to an individual substantiated allegation
(f) if the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.
[21] Submissions received from the parties are summarised and considered as relevant to the issues to be decided in this appeal.
[22] The portion of the decision letter describing Allegation two and summarising Ms Hennessy's response is set out as follows:
On 19 January, it is alleged you acted inappropriately in your official capacity when you smacked [the Patient] with a television remote control.
In response to Allegation Two, you and Ms Vasich[15] made the following submissions.
[23] The disciplinary finding decision went on to substantiate that allegation:
I have carefully considered all the information available to me, including your response, however all of the information may not be specifically mentioned in my decision.
You refute this allegation made against you and provided your account of events and how they may have been misinterpreted. Further, you have reflected on these events and outlined your commitment to improving your practice through, early identification, de-escalation and support strategies. I have noted your dedication to your self-improvement; however, I am concerned that the events recalled by you are inconsistent with both the information provided by the disclosure and your substantiated escalated behaviour leading to this event.
In accordance with the principles of natural justice, for a delegate to find or consider an allegation substantiated, sufficient evidence is required in order to satisfy the decision-maker that it was more likely than not that the conduct occurred as described.
The sequence of events provided by the disclosure is similarly aligned with your own, including where you were sitting, the Patient saying "go away" and "hey, that hurt! Go away!" and differing in accounts by your actions regarding the remote placement. Further, you have admitted to communicating inappropriately in a verbal manner, then refute that you continued to escalate physically with no identification of self-de-escalation. As these events transpired quickly, I disagree that you desisted in your heightened state and regained a calm demeanour as described.
I have no reason to doubt the veracity of the information provided by the disclosure as they had no incentive to make a vexatious complaint or overstate their perception of these events. Further, the disclosure reported and repeated their version of events to multiple officers in MSH, over the course of several weeks in a consistent manner, this carries significant weight in my deliberations. There is no reason for me not to accept the disclosure as credible, particularly when considering your heightened state and obvious frustrations with this patient.
I can advise that based on the clinical information available in relation to the Patient, inclusive of her confirmed medical diagnosis of dementia, it was determined that the Patient wouldn't have the cognitive capacity to be interviewed in relation to this matter.
On this occasion, the manner in which you communicated and behaved deteriorated the Patient relationship, perception of care provided and competency of the MSH Bayside cohort. Your conduct in this circumstance has caused irreparable damage to your relationship with the Patient, your cohort and MSH, disintegrating the trust and integrity you uphold in your role.
On the basis of my finding in relation to Allegation Two, I have determined that pursuant to section 91(1)(b) of the PS Act, in that you have been guilty of misconduct, that is inappropriate or improper conduct in an official capacity within the meaning of section 91(5)(a) of the Act.
[24] Ms Hennessy set out the 'reasons for appeal' as follows:[16]
Contesting the sufficiency of evidence to substantiate allegation two to the requisite standard. Given seriousness of allegation two, the employer has not taken into consideration that in line with Briginshaw test a higher threshold is required to substantiate allegation.
[25] The applicable standard of proof in civil matters is 'on the balance of probabilities'. The definition of 'on the balance of probabilities' is clearly set out in the Discipline Directive:[17]
Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
• inherent likelihood or improbability of a particular thing or event occurring
• gravity of the consequences flowing from a particular finding.
[26] Ms Hennessy submitted that the applicable standard of proof is the test set out in Briginshaw v Briginshaw ('Briginshaw'), which provides as follows:
...it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or fact to be proved. The seriousness of the allegation made, the inherent unlikelihood of an occurrence of the given description, or the gravity of the consequences flowing from a particular finding are considerations which must affect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters "reasonable satisfaction" should not be produced by inexact proofs, indefinite testimony, or indirect inferences...[18]
[27] The Briginshaw test does not 'establish a third standard of proof sitting between reasonable doubt and the balance of probabilities'.[19] Rather, the 'relevance of the Briginshaw standard is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed'.[20]
[28] One of the primary bases on which Ms Hennessy attacked the fairness and reasonableness of the disciplinary finding decision is that the evidence was inadequate to support the finding to substantiate the allegation.
[29] Queensland Health's contention is that it was open to the decision-maker on the material available to them to find the allegation of inappropriate conduct substantiated.[21]
[30] It is Ms Hennessy's contention that Allegation two, by way of its serious nature, attracted a higher standard of proof than allegation one.[22] Lavercombe v Legal Services Commission is pointed to by Ms Hennessy as providing that allegations must be proved to the requisite standard, with proof only possible where there is evidence to establish the 'necessary elements'.[23]
[31] It was incumbent on the employer, Ms Hennessy submitted, to 'conduct an adequate investigation, identify all potential witnesses, obtain statements from them, and identify/obtain evidence'.[24] For the decision-maker to satisfy themselves to the relevant standard, Ms Hennessy submitted the evidence before them must be 'uncontested'[25] or at least 'strong enough' that the decision-maker is satisfied of the allegation.
[32] Ms Hennessy submitted that the documents relied upon by the decision-maker in reaching their decision were the summarised statement by the Public Interest Discloser and summarised statement by the Team Leader, Nurse Nisha George. Ms Hennessy submitted that the decision revealed that the decision-maker preferred the version of events put forward by the Public Interest Discloser over Ms Hennessy and asserted that the disciplinary finding decision implied that the version of events proffered by Ms Hennessy was not credible.
[33] Ms Hennessy contended that the decision-maker's reliance on the PID statement is insufficient evidence to ground the allegation and said 'to satisfy Queensland Health to the relevant standard, investigation into the Applicant's version of events ought to have occurred, particularly given the lack of other evidence'.[26] A fair and reasonable investigation, Ms Hennessy contended, should have involved investigating/and or obtaining evidence of:
(a) The Applicant's version of events;
(b) A further statement from the PID in circumstances where Ms Hennessy's version of events contradicted the version of events set out by the PID maker;
(c) Obtained a statement from RN Nicole Warren, the nurse allocated to the Patient's case on the relevant shift who, according to the statement of RN Nisha George, may have provided evidence on the Patient's demeanour, complaints made following the alleged incident (if any) and evidence of fresh bruises (if any); and
(d) A statement of complaint from the Patient directly after the incident was alleged to have occurred and/or conducted any further inquiry with the Patient as to what occurred and any alignments - their condition would not have prevented enquiries directly after the allegation was said to have arisen
[34] The fact that Ms Hennessy's account of events in Allegation one was accepted by the decision-maker but not in respect of Allegation two is submitted to be 'concerning' by Ms Hennessy. Ms Hennessy said that the factual contest between her account of events and the PID account of events was not resolved.[27]
[35] Overall, Ms Hennessy submitted that the decision-maker had fallen short of their obligations and could not have been satisfied to a reasonable satisfaction given the 'failure to investigate/provide evidence' of the above pertinent matters.[28]
[36] In response, Queensland Health submitted the findings of the decision-maker were reasonably open to them and are thus not expected to be disturbed on appeal.[29]
[37] The decision-maker was said by Ms Hennessy to have placed sole reliance on the accuracy of the statement by the PID maker.[30]
[38] The summarised statement by the PID is relevantly extracted below:[31]
[39] The decision-maker found that there was no reason to doubt the information provided by the Discloser, as they had no incentive to make a vexatious complaint. Ms Hennessy stated that she was not afforded the opportunity to make any submissions about any incentives the PID may have had as their identity was unknown. Therefore, from the perspective of Ms Hennessy, there was no evidence before the decision-maker to reach this conclusion.[32]
[40] Ms Hennessy referred to her Response to the NTSC to confirm that the PID's view was obscured by the Patient, and that they would not have been able to witness the interaction, which was not put to the PID or addressed by the decision-maker directly.
[41] To the contrary, Queensland Health contended that it appeared Ms Hennessy was aware of the identity of the PID, given Ms Hennessy had submitted that the PID had an obscured view.[33] In submissions in reply, Ms Hennessy clarified that she was aware someone was in the room and was aware of where they were sitting, but it was dimly lit and Ms Hennessy did not observe the identity of the person.[34]
[42] Ms Hennessy contended the evidence of the PID was accepted from the outset. Queensland Health maintained in their submissions that there was no reason to doubt the veracity of the PID account,[35] and submitted it was open for the decision-maker to find that it was unlikely the PID had invented the story and to give their account weight, given the serious nature of the allegations.[36]
[43] The statement of RN Nisha George is reproduced where relevant as follows:
[44] The fact that the Patient was not asked for their account or perspective is asserted to be a flaw in the process by Ms Hennessy. Queensland Health submitted that this revealed Ms Hennessy did not understand the vulnerability of the consumer group and explained that the Patient lacked the cognitive capacity to decide whether to make a complaint.[37]
[45] In response, Ms Hennessy highlighted her previous work history at a secure unit which provided housing and care for patients with 'serious dementia', involving complex behavioural issues such as faecal smearing, throwing food, verbal abuse and physical violence towards other residents and staff. Ms Hennessy said her record was unblemished in those challenging circumstances.[38]
[46] Ms Hennessy further submitted that the capacity of dementia patients can fluctuate day to day and the assertion by Queensland Health that the Patient was not fit to make a complaint was not supported by evidence.[39] Ms Hennessy also submitted that the Australian Charter of Healthcare Rights stipulated that the Patient should have been given the opportunity to discuss the incident.[40]
[47] The reference to old bruising is picked up by Ms Hennessy in submissions, who argued that this statement and the effect of the lack of fresh bruising appeared to have been given little weight by the decision-maker. Ms Hennessy contended it was concerning that in the NTSC the decision-maker referenced the bruise observed by RN Nisha George but did not include her recollection of her conversation with RN Warren regarding the bruising being a few days or a week old.[41]
[48] Queensland Health highlighted the nature of the report as being second-hand and stated that it appeared Ms Hennessy was implying this constituted evidence the incident did not occur. Queensland Health contended the absence or presence of a bruise was irrelevant as the force of the alleged smack was not in issue - rather, the issue was that the evidence of the PID was sufficient to establish a smack occurred.[42]
[49] In submissions in reply, Ms Hennessy contended that the skin of the Patient was highly fragile and thus any contact, particularly that capable of producing a cracking sound, should have left a mark. Ms Hennessy said this point should have been considered by the decision-maker.[43]
[50] It is the case that the evidence relied upon by Mr Nolan in reaching his disciplinary finding decision was to a reasonable extent contained in the summarised statement of the Discloser and of Nurse George. As made clear in the decision letter the decision was also based on the response Ms Hennessy herself had provided along with the fact the Discloser made a contemporaneous verbal report following the incident and consistently repeated the details in subsequent interviews. For this reason, I do not agree the decision was solely based on the summarised statement of the Discloser, or Nurse George.
[52] Actions taken by Nurse George in response to the verbal report was an examination of the Patient and discussion with Nurse Warren, the Registered Nurse on shift responsible for the Patient's care, regarding a detected bruise on the back of the Patient's hand. The 'second-hand' report of the discussion with Nurse Warren was sufficient to draw the reasonable conclusion that the detected bruise did not arise from the reported incident. It does not support any other conclusion regarding the incident as it was too old to be relevant.
[53] I am not able to deduce on the material before the decision-maker whether the absence of any fresh bruise was merely a product of the proximity of the inspection to the incident or some other reason. The Respondent argued the absence of a fresh bruise was not relevant as the force of the smack was not in issue. The issue was whether it was more probable than not that any smack occurred. The evidence does support the Discloser had been clear she could not estimate or comment on the force of the single smack she witnessed. Ms Hennessy submitted the description of the cracking sound at the point of contact would be suggestive of considerable force, sufficient to lead to fresh bruising on fragile skin.
[54] I conclude had a fresh bruise been detected at the time of the physical inspection by Nurse George it would logically have been considered as tending to support recent impact at the site of the bruise. No relevant bruise was detected and it was open to the decision-maker to weigh that neutrally when determining whether any smack occurred by reason of the force of the smack not being in issue.
[55] It is well accepted that where there exist a number of possibilities reasonably open on the evidence, reasonable minds may differ without one being in error.[45]
[56] I agree with Ms Hennessy that the failure to have a conversation with the Patient regarding any recollection of or reaction to the incident is perplexing. It is not clear on the evidence whether it was assumed because the Patient had any type of dementia that she had no cognitive capacity to respond to any questions asked;[46] or if this was an assessment based on the actual cognitive impairment of the individual given the type of her dementia and its progress. In any event, directly asking the Patient what happened at the time of the physical exam is not the same as a later determination as part of the internal investigation process that the Patient lacked the cognitive capacity 'to be interviewed' as outlined in the decision-letter or to 'decide whether to make a complaint' as indicated in Respondent submissions.
[57] The logical time for direct engagement with the Patient about any recollection or response, or indeed to enquire whether she was okay, was when the Patient follow up was happening after the incident was verbally reported - even if ultimately the information was of limited probative value.
[58] While the failure to require a formal report of the incident and the apparent failure to ask the Patient anything related to the incident is highly concerning, I do not agree with Ms Hennessy that it renders the disciplinary process leading to the disciplinary finding as procedurally unfair.
[59] Prior to commencing the disciplinary process, the decision-maker formed a view that Ms Hennessy may be liable to disciplinary findings pursuant to s 91 of the Act. In this case that view was informed by the internal investigation of the disclosure. The internal investigation was not a step in the discipline process itself but rather one way for facts to be gathered about alleged conduct to determine whether allegations should be put. The first step in the discipline process is the show cause process for disciplinary findings. In this matter it was the NTSC1 issued 27 February 2025.
[60] The show cause notice must contain written details of each allegation and for each allegation, the particulars of the facts and the disciplinary ground under s 91 of the Act that apply to the allegation (no more than two grounds per allegation).[47] A copy of all evidence considered by the decision-maker relevant to the facts must be provided.
[61] Except for the highlighted failure to provide the particular of Nurse Warren having aged the detected bruise to a date before the incident, there is no suggestion that the information provided in the show cause notice did not comply with the requirements.[48] While the aging of the bruise was a relevant particular at the show cause stage, the omission was addressed in the detailed response to NTSC1 provided by Ms Hennessy's representative. No practical injustice or lost opportunity occurred that would render the disciplinary process unfair.[49] Ms Hennessy had sufficient information and opportunity to provide a detailed response, which she did through her union's lawyers.
[62] I consider it was reasonable for the decision-maker in reaching his decision on findings, to assess the evidence that did exist including the evidence provided by Ms Hennessy as part of her own response. Whether the totality of the evidence was sufficient to form actual persuasion that it was more likely than not the incident occurred as reported (and repeated) by the Discloser is a separate question for my review.
[63] Having reviewed the material before the decision-maker, I find that at the time of the incident the only people in the ward's dayroom were Ms Hennessy, the Patient and the Discloser. This finding is based on Ms Hennessy's response to the NTSC that stated at paragraph 8 "After dinner, the other patients returned to their rooms." In the summary of the report from the Discloser, it stated: "There were no other staff in the Dayroom at the time". Finally, it had never been asserted there were other eyewitnesses to the incident itself.
[64] The material also supports that at the time of the alleged smack the three people were sitting near each other. The Patient was positioned between the Discloser and Ms Hennessy. This finding is based on Ms Hennessy being close enough to make admitted physical contact with the left arm of the Patient, (and consider she may have inadvertently touched her feet although she had not) and the Discloser reporting she was in a chair in the ward's day room and the Patient was sitting immediately next to her on the Discloser's left. Ms Hennessy also submitted that the unidentified discloser would have had her view obscured by the Patient, reinforcing the likelihood the Patient was positioned between them.
[65] The Discloser reported and Ms Hennessy admitted, that prior to her sitting next to the Patient she had through frustration raised her voice and said, "stop your whining and shut up, just shut up!"[50]
[66] Ms Hennessy submitted in her reflection document and response to the NTSC that she immediately regretted the outburst as inappropriate and went to sit next to the Patient and placed the remote on the nearby tray table. Ms Hennessy's own response was that she then said, "why are you whining?" followed by "what do you need?" The Discloser reported Ms Hennessy had said "Shut up" to which (in both version of events) the Patient said, "go away!" It is not directly addressed why Ms Hennessy considered the ongoing characterisation of the Patient's verbalisation as 'whining' would be an appropriate and professional start to her deliberate attempt to de-escalate the situation.
[67] Ms Hennessy claimed the remote was no longer in her hand when she reached over to gently touch the left hand of the Patient. She admitted the Patient responded to her gentle touch with "Hey, that hurt!" and "go away!" with Ms Hennessy immediately apologising and indicating she "did not mean to hurt her". As verbally reported by the Discloser immediately following the incident the physical contact was a single smack of the Patient's left hand with the remote control that had remained in Ms Hennessy's hand. The summary of Nurse George's statement confirms she was told by the Discloser that the Discloser had seen the smack occur with the remote and heard the sound of the impact. It is not contested in either version that the physical contact (i.e. gentle touch or single smack) occurred immediately following the Patient saying to the now seated Ms Hennessy "Go away!".
[68] Ms Hennessy's NTSC response, confirmed in submissions, was that she was aware of the other staff member in the room and where they were sitting,[51] but the lighting was too dim to make out who they were.[52] Ms Hennessy does not contradict the location of the Discloser being next to the Patient.
[69] I agree with the decision-maker that it seems improbable Ms Hennessy would not have been able to identify the other person in the room. The three were sitting close to each other and the Discloser was able to describe Ms Hennessy. It is not contested by Ms Hennessy that the Discloser correctly identified her and had accurately reported almost every detail of the incident between the Patient and herself.
[70] The parts of the incident report that are not contested by Ms Hennessy (including by direct admission) lead me to conclude it was reasonable for the decision-maker to find it to be improbable the part of the report the Discloser got wrong, misunderstood or fabricated was, by Ms Hennessy's own submissions, the most serious element of the alleged conduct. I find it reasonable for the decision-maker to have concluded there was no reason to doubt the integrity of the entire report made. Nurse George's summary statement confirmed the details of the contemporaneous verbal report made by the Discloser. The Patient's own uncontested response to the physical contact - "hey, that hurt!" - would weigh against the contact being a gentle, reassuring touch. As would Ms Hennessy following that statement immediately with an apology and reassurance that it was not her intention to hurt the Patient.
[71] For the reasons outlined above I consider it was reasonably open to the decision-maker to conclude Allegation two had been substantiated on the balance of probabilities.
Other concerns raised by the Appellant do not lead me to a different view
[72] Ms Hennessy's submissions note other concerns that I will address in turn:[53]
a) No CCTV captured the incident as the employer does not have CCTV cameras in room where the incident occurred as it is a patient area
[73] The lack of CCTV footage does not prevent the decision-maker from reaching a conclusion based on all the available evidence, including Ms Hennessy's version of events. The discipline directive does not require CCTV footage (or eyewitness accounts) for a state of reasonable satisfaction to be reached. [54] In this case there was an eyewitness to the conduct who made a contemporaneous verbal report, the details of the report made were confirmed by the person to whom it was made and by the Discloser during the internal review of the disclosure. The decision-maker made their decision only after considering Ms Hennessy's own version of events in response to the Discloser and Nurse George accounts. It is not contested that the Discloser was present at all relevant times during the incident and that no other person was present at the time.
b) No evidence was proffered to demonstrate that the 'escalation' from expressing frustration verbally to physically assaulting a patient is likely to have occurred, which Ms Hennessy submits is not a reasonable deduction.
[74] The decision-maker in their letter indicated this finding was based on the admission of the escalated behaviour leading to the verbal abuse and the significant alignment of the sequence of events reported by the Discloser and Ms Hennessy. The decision-maker concluded there was no reason to doubt the veracity of the entire report made by the Discloser. Further the entire conduct sequence occurred over a short period of time (between 6.50 p.m. and it being reported at 7 p.m.) with the decision-maker indicating he did not agree it was plausible for Ms Hennessy to have regained sufficient control of herself to have gone from verbal abuse to gentle touching as she contended.
[75] This was reasonably open for the decision-maker to conclude. As noted above, Ms Hennessy commencing the purported de-escalation with "...Why are you whining?" does not evidence resumption of a professional approach.
[76] Ms Hennessy admitted speaking to the Patient in the way set out in Allegation one. The fact that this was said to be uncharacteristic does not alter the fact that the conduct occurred, or mean it was less likely that the admitted inappropriate language used progressed to the single smack, moments later. Ms Hennessy's reflection document provided to the decision-maker as part of the show cause process highlighted her level of frustration that had developed with the Patient and failure to regulate her emotions in accordance with her professional expectations and training.
[77] This document further identified: "While I was trying to manage my other tasks and reassure the Patients I became increasingly frustrated with [the Patient's] behaviour. At one point I raised my voice in frustration, telling [the Patient] to stop your whining and shut up." This reflection logically relates to allegation one. As found above, there were no other patients in the dayroom at the time of the verbal abuse. Further it was acknowledged that the Patient's behaviour was not new or peculiar within that health setting and should not have led to her unprofessional response. I consider that would also be the case in relation to her prior experience with more challenging behaviours in the secure unit outlined above (at paragraph [45]).
[78] To the extent past behaviour is being relied on to suggest the conduct in allegation two is unlikely as it was out of character, it is belied by the fact the admitted conduct in allegation one is equally out of character. Both sets of conduct were witnessed and reported immediately following their occurrence. To the extent past behaviour is being relied on to suggest her otherwise good conduct should be considered in moderating the findings, that might be a consideration more relevant to the show cause process on proposed disciplinary action.[55]
d) Key findings by the decision-maker were reached without sufficient evidence, such as the statement that Ms Hennessy's behaviour caused 'irreparable damage to your relationship with the Patient, your cohort and MSH'.
[79] This statement is also contained in findings for Allegation one which are not disputed. In the reflection document Ms Hennessy acknowledged her inappropriate and unprofessional conduct was damaging to her relationship with the Patient.[56] Having considered this to be the case in relation to her admitted verbal conduct, it seems reasonable for the decision-maker to hold that view in relation to substantiated physical conduct.
Is the conduct 'misconduct' within the meaning of the Act?
[80] Having found it was reasonably open to the decision-maker to substantiate the conduct in allegation two, I must consider whether it was also reasonable to conclude it gave rise to the disciplinary ground of misconduct.
[81] Section 91 of the PS Act provides:
(1) A public sector employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -
(a) inappropriate or improper conduct in an official capacity; or
victimising another public sector employee in the course of the other employee's employment in the public sector
[82] In this matter, the substantiated conduct in Allegation two is said to constitute inappropriate or improper conduct in an official capacity. This must be looked at in the context of the workplace where Ms Hennessy was working and I note, "it must be more than a mere breach of some duty or obligation before misconduct is established."[57] I note the statement by His Honour, President Davis:
However the nature of the obligation and the nature of the breach may bespeak misconduct without more.[58]
[83] No submissions have been made by the Appellant in relation to the reasonableness of the finding of misconduct flowing from substantiation of the allegations. This is presumably because Ms Hennessy argued the conduct itself could not be substantiated on the available evidence, so no disciplinary ground could arise.
[84] Queensland Health point to his Honour Merrell DP's consideration of 'misconduct' in Coleman v State of Queensland (Department of Education).[59]
... the definition of misconduct contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[60]
[85] I note that the examples provided by his Honour do not constitute a test:[61]
[70] Rather, the Deputy President identified conduct which would be included within the definition namely "a deliberate departure from accepted standards, serious negligence to the point of indifference or an abuse of the privilege and confidence enjoyed by an employee to whom section 187 ... applies."
[86] Queensland Health argued that Ms Hennessy's conduct represented a deliberate departure from accepted standards as it had a reasonably predictable impact upon the Patient. Queensland Health also highlighted the vulnerabilities inherent in the Patients of the Macleay Ward and Dementia Care Unit and submitted it was open to the decision-maker to consider a higher standard of care can be expected from health workers engaged in these areas. I agree. Dementia patients are especially vulnerable and while behaviours can be challenging, magnified on a busy shift, the behaviours of this Patient were common place. When the verbal and physical abuse occurred Ms Hennessy, the Patient and the Discloser were alone in the day room. Ms Hennessy was the person responsible for the care of the Patient at that time.
[87] As highlighted by the decision-maker, Ms Hennessy's reflection document and show cause response made clear she had the tools, training and experience to have made different choices in her interaction with the Patient. Even in circumstances where she claimed she had recognised the inappropriateness of her verbal abuse of the Patient and had shifted gear, she continued to refer to the Patient as 'whining'. While describing her initial verbal outbursts as 'inadvertent', she claimed the move to sit next to the Patient was a choice to de-escalate, so her admitted language of 'why are you whining?' must have also been a deliberate choice. That is not conduct consistent with a person who had understood their behaviour to that point was inappropriate and was now behaving appropriately. While Ms Hennessy had consistently denied the physical abuse took place, the version of events provided by the Discloser was reasonably considered to be the more reliable account.
[88] I have confirmed it was reasonably open to the decision-maker to find it was more probable than not that Ms Hennessy did deliver a single smack to the Patient with the remote in the moments that followed her admitted state of heightened frustration that led her to verbally abuse the Patient. As an Assistant in Nursing charged with the responsibility to support the care needs of a vulnerable cohort of patients, and the vulnerable patient in particular, I consider smacking the Patient in frustration is inappropriate conduct in an official capacity.
[89] I agree with Queensland Health submissions that the relevant threshold for a finding of 'misconduct' is met.[62]
[90] The decision subject to appeal was fair and reasonable in the circumstances.
[1] Form 89 Appeal Notice, filed 19 May 2025.
[2] Submissions in Reply of the Appellant, filed 28 July 2025, [1].
[3] The Patient's name or reference number will not be used in this Decision as it is not relevant to any question I am required to decide. It is not disputed that the Appeal relates to an interaction between Ms Hennessy and the Patient on 19 January 2025.
[4] Show Cause Notice issued 27 February 2025.
[6] A public sector employee aggrieved by the decision.
[7] Ms Hennessy clarified in email correspondence dated 20 May 2025 that the letter dated 27 April 2025 (a Sunday) was received on Monday 28 April 2025, rendering her appeal lodged 19 May 2025 in time. This is not contested.
[8] Industrial Relations Act 2016 (Qld) s 562B(2)-(3).
[9] State of Queensland (Queensland Health) v Hume [2024] ICQ 3, Merrell DP.
[10] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
[11] O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [10].
[13] Ibid s 562C(1)(c).
[14] Submissions of the Appellant, filed 7 July 2025, 5.
[18] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 363 (Dixon J).
[19] Fischer v State of Queensland (Department of Seniors, Disability Services, and Aboriginal and Torres Strait Islander Partnerships) (No. 2) [2021] QRC 333, [34] (Dwyer IC).
[20] Perry v State of Queensland (Queensland Health) [2023] QIRC 348, [46] (McLennan IC).
[21] Submissions of the Respondent, filed 21 July 2025, [24].
[22] Submissions of the Appellant, filed 7 July 2025, [18].
[23] Ibid [17]; Lavercombe v Legal Services Commission [2023] QCAT 58, [21].
[24] Submissions of the Appellant, filed 7 July 2025, 3.
[25] It is not clear on what basis this assertion is made.
[26] Submissions of the Appellant, filed 7 July 2025, 3.
[27] Submissions of the Appellant, filed 7 July 2025, [24].
[29] Submissions of the Respondent, filed 21 July 2025, [45].
[30] Submissions of the Appellant, filed 7 July 2025, [29].
[32] Submissions of the Appellant, filed 7 July 2025, [30].
[33] Submissions of the Respondent, filed 21 July 2025, [34]-[35].
[34] Submissions in reply of the Appellant, filed 28 July 2025, [9].
[35] Submissions of the Respondent, filed 21 July 2025, [30].
[37] Submissions of the Respondent, filed 21 July 2025, [31]
[38] Submissions in reply of the Appellant, filed 28 July 2025, [4]-[5].
[41] Submissions of the Appellant, filed 7 July 2025, [35].
[42] Submissions of the Respondent, filed on 21 July 2025, [36].
[43] Submissions in reply of the Appellant, filed 28 July 2025, [8].
[44] It wasn't until 23 January 2025 that the Discloser was advised to complete a written report and submitted an incident report.
[45] Minister for Immigration and Citizenship v SZMDS (2010) 240 CLR 611, [131]; Wilson v State of Queensland (Department of Justice and Attorney-General) [2021] QIRC 245, [84] (McLennan IC).
[46] This is what the summarised statement of Nurse George tends to suggest - "you didn't ask the Patient about the alleged incident or the bruise on her hand, due to her having dementia."
[48] Directive 05/23: Discipline relevantly extracted at paragraph [20].
[49] Minister for Immigration & Border Protection v WZARH [2015] HCA 40; (2015) 256 CLR 326, [57] (Gageler and Gordon JJ); Manttan v State of Queensland (Department of Education) [2022] QIRC 238, [29] (Merrell DP).
[50] The Discloser's report indicates the word was whinging rather than whining and that the tone indicated frustration and anger, but that is not material.
[51] At paragraph 22 of response: "We submit that the PID did not see our client hit the consumer as is alleged. The PID's statement suggests that they were sitting on the Patient's right. Our client instructs that based on their recollection of where the other person in the room had been sitting, their view of our client's interaction with the consumer would have been obstructed by the Patient." This statement does not contest that the PID was sitting immediately to the Patients right. It just says the recollected position means their view would have been obstructed.
[52] Submissions in reply of the Appellant, filed 28 July 2025, [9].
[53] Submissions of the Appellant, filed 7 July 2025, 4.
[54] Hill v State of Queensland (Queensland Health) [2026] QIRC 037, [46] (McLennan IC).
[55] Directive 05/23: Discipline, cl 9.5 - 9.6.
[56] Submissions of the Appellant, filed 7 July 2025, 104.
[57] State of Queensland (Queensland Health) v Nield [2025] ICQ 21, [100] (Davis J).
[58] State of Queensland (Queensland Health) v Nield [2025] ICQ 21, [101] (Davis J).
[60] [2020] QIRC 32, [62].
[61] State of Queensland (Queensland Health) v Nield [2025] ICQ 21 (Davis J).
[62] Submissions of the Respondent, filed 21 July 2025, [44].
Hennessy
State of Queensland
(1938) 60 CLR 336
(2015) 256 CLR 326
(2010) 240 CLR 611