Hickey v State of Queensland

McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd [2013] FWC 3034, cited

Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513, cited

SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137, applied

SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362, applied

The Australian Workers' Union of Employees, Queensland v The State of Queensland (Department of Communities, Disability Services) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 48, related

Unions NSW v New South Wales [2019] HCA 1; (2019) 264 CLR 595, cited

Providence HR (human resource consultants) for the respondent

• [1] Alana Hickey had been employed by the Department of Communities, Disability Services and Seniors (the department) for some 16 years. She was dismissed on 27 August 2018.
• [2] Upon her dismissal, Ms Hickey brought an application for reinstatement under Division 2 of Part 2 of Chapter 8 of the Industrial Relations Act 2016 (IR Act). The application came before Industrial Commissioner Pidgeon, who dismissed it on 30 March 2020. That decision is published as The Australian Workers' Union of Employees, Queensland v The State of Queensland (Department of Communities, Disability Services) (Disability Accommodation and Respite and Forensic Disability Service) [2020] QIRC 48.
• [3] Ms Hickey appealed against that decision pursuant to s 557 of the IR Act. I heard the appeal on 29 October 2020, at which time I made the following orders:
  1. Allow the appeal.
  2. Set aside the order of Industrial Commissioner Pidgeon dismissing the appellant's application alleging unfair dismissal.
  3. Remit the application to the Queensland Industrial Relations Commission to be reheard by a commissioner other than Industrial Commissioner Pidgeon.
• [4] I reserved my reasons and adjourned the matter to today for the delivery of those reasons. These are my reasons for making the orders which I did.
• [5] Ms Hickey in her amended application to appeal, raised a number of grounds. It is only necessary to consider one and that is ground of appeal 1(a). That ground is in these terms:

1. finding that the reprimand issued to the Appellant was a warning regarding the alleged conduct, capacity or performance of the appellant within the meaning of s 320(c)(i) of the Industrial Relations Act 2016 (Qld);..."

• [6] The ground of appeal refers to s 320 of the IR Act. Section 320 appears in Division 2 of Part 2 of Chapter 8 which deals with "Unfair dismissals". Section 316, which is the first section in Division 2, provides as follows:

A dismissal is unfair if it is harsh, unjust or unreasonable."

• [7] Section 317 authorises an employee who has been dismissed to make an application for reinstatement to the Queensland Industrial Relations Commission (the Industrial Commission). Section 318 relates to conciliation of the disputed dismissal, and then by s 319, the matter may be referred to arbitration by the Industrial Commission.
• [8] Section 320, which is critical here, is entitled "Matters to be considered in deciding an application". Section 320 provides as follows:

"320 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the commission must consider -

(a) whether the employee was notified of the reason for dismissal; and

(i) the operational requirements of the employer's undertaking, establishment or service; or

(ii) the employee's conduct, capacity or performance; and

(c) if the dismissal relates to the employee's conduct, capacity or performance -

(i) whether the employee had been warned about the conduct, capacity or performance; or

(ii) whether the employee was given an opportunity to respond to the claim about the conduct, capacity or performance; and

(d) any other matters the commission considers relevant." (emphasis added)

• [9] Sections 321, 322 and 323 all, in one way or another, concern remedies which may be granted to an employee who has established that his or her dismissal was unfair. That is that the dismissal was harsh, unjust or unreasonable.
• [10] It is unnecessary here to descend to any detailed analysis of the facts. A short chronology will suffice.
• [11] On 15 December 2016, there was an incident involving Ms Hickey at her workplace. That led to action being instigated, but that incident is not one of the incidents for which she was ultimately dismissed. There were three incidents which led to Ms Hickey's dismissal. Those incidents occurred on each of the 1, 2 and 10 April 2017.
• [12] The incident of 15 December 2016 was investigated and Ms Hickey was given a notice of reprimand in relation to that incident. That notice was given on 8 August 2017. In the meantime, particulars of the allegations concerning the incidents on 1, 2 and 10 April 2017 were delivered to Ms Hickey. That occurred on 29 May 2017. As already observed, on 28 August 2018 she was dismissed.
• [13] What can be seen is that the reprimand in relation to the incident of 15 December 2016 was received by Ms Hickey on 8 August 2017, some months after the three incidents which led to her dismissal. A show cause process occurred in relation to the incidents which allegedly occurred in April 2017 and Ms Hickey responded to the allegations. An investigation was undertaken and a report prepared.
• [14] Mr Matthew Lupi is the Senior Executive Director for Disability Accommodation, Respite and Forensic Services in the department. He was the person who decided to terminate Ms Hickey's employment. In his statement of 7 May 2019 which was before Industrial Commissioner Pidgeon, he importantly said this:

"11. I was aware in determining the penalty that Ms Hickey had previously received a reprimand. Despite this reprimand, Ms Hickey had not altered her behaviour and continued to engage in conduct (as demonstrated by the investigation outcomes) which placed Departmental vulnerable clients at risk." (emphasis added)

• [15] This paragraph contains a very fundamental error. On any sensible reading of paragraph 11, Mr Lupi means to say that Ms Hickey committed the conduct for which he dismissed her, notwithstanding that she had received a reprimand. Of course, by the time Ms Hickey was involved in the incidents on the 1, 2 and 10 April 2017, she had not been reprimanded. The reprimand was not received by her until 8 August 2017, some four months later.
• [16] Questions arise then as to whether the reprimand in relation to the incident in December 2016 could be a "warning" for the purposes of s 320(c)(i). That involves an exercise of construction of s 320(c)(i). That in turn necessitates a consideration of the text of the provision assessed in the context of the provision within the IR Act and by reference to the purpose of the provision and the mischief it is intended to address.[1]
• [17] Here, the meaning of s 320 is obvious. The "conduct, capacity or performance" of the employee, as that term appears in s 320(i)(c) is the "conduct, capacity or performance" of the employee which formed the basis of the dismissal. That is made clear by the opening words of s 320(c), namely:

"(c) if the dismissal relates to the employee's conduct, capacity or performance - "

• [18] An obvious consideration in determining whether a dismissal was unfair, is whether the conduct was committed in defiance of an earlier direction, or conversely, whether the employee had not previously been placed on notice as to the unacceptability of the conduct. Section 320(c) mandates such considerations. It clearly contemplates that the "warning" referred to in s 320(c)(i) is a warning given prior to the conduct which was the basis of the dismissal.[2]
• [19] The reprimand given in relation to the incident in December 2016 could not as a matter of law be a "warning" for the purposes of s 320(c)(i), as the reprimand was given after the commission of the conduct upon which Mr Lupi decided to dismiss Ms Hickey.
• [20] Mr Healy of counsel, who appeared for the department on the appeal, submitted that Mr Lupi was entitled to take the fact of the commission of the December 2016 conduct into account when determining to terminate Ms Hickey's employment, even though she had not been warned about that earlier incident before the later incidents occurred. That submission may be correct but there is no need for me to decide that issue given the way the Industrial Commissioner decided the application.
• [21] Mr Healy pointed to the show cause letter of 19 July 2018, particularly paragraph 9, and the letter of termination of 27 August 2018, particularly paragraph 6, which suggests that Mr Lupi took the earlier incident into account in what Mr Healy submitted was a permissible way.
• [22] The oral evidence which Mr Lupi gave before the Industrial Commission is also arguably consistent with that approach.[3] However, the appeal before me was an appeal, not from the decision of Mr Lupi, but an appeal from the Industrial Commissioner's dismissal of Ms Hickey's unfair dismissal application. On such an application Ms Hickey was entitled to have the Industrial Commissioner consider the case according to law, and in particular, to have the Industrial Commissioner consider the matters mandated by s 320.
• [23] As explained, Ms Hickey's case was that she was dismissed without warning. The only alleged warning was the reprimand and the reprimand had arrived in her hands after she had allegedly committed the conduct which led to her dismissal. The Industrial Commissioner properly turned her mind to s 320 of the IR Act. In that respect she found:

"[14] With regard to s 320(b)(ii) of the IR Act, the termination letter clearly states that the termination relates to the employee's conduct, capacity and performance. The evidence before the Commission demonstrates that following an investigation undertaken by the Department, a Show Cause process was commenced which gave Ms Hickey an opportunity to respond to the claims about her conduct, capacity and performance.

[15] Section 320(c)(i) of the IR Act refers to whether the employee had been warned about the conduct, capacity or performance. Ms Hickey had previously received a reprimand. While the reprimand itself is not in evidence, Ms Hickey's representative discussed it with the decision maker Mr Lupi, under cross-examination. Mr Lupi said that he understood the reprimand was in relation to a similar failure of duty of care, breaches of mealtime procedure that could have resulted in serious harm to a client, and that led the decision-maker at the time to issue a disciplinary penalty.

[16] Ms Hickey points out that this reprimand was the only warning from the Department for the entire duration of her employment. Further, that warning was not a 'first and final warning'.

[17] I consider that the reprimand and its close proximity in time to the allegations that led to the dismissal could be considered a warning with regard to Ms Hickey's conduct, capacity and performance." (emphasis added)

• [24] The crucial finding is in paragraph [17] of the judgment as set out above. The only way of sensibly interpreting paragraph [17] is that the reprimand "could be considered a warning" for the purposes of s 320(c)(i). The reprimand is not a "warning" for the purpose of the mandatory considerations in s 320(c) of the IR Act. As already observed, a "warning", here in the form of a reprimand for earlier conduct, which is received after "the conduct" (see s 320(c)(i)) the subject of the dismissal and the reinstatement application, is not as a matter of law a "warning" for the purposes of the consideration mandated by s 320(c)(i).
• [25] The Industrial Commissioner referred to the evidence of Mr Lupi. In the judgment this was said:

"[129] Mr Lupi says he considered if there were other penalties which could be applied in the circumstances, specifically whether it was possible to move Ms Hickey to a different role in the Department. He says that he did not consider this as an option because:

Ms Hickey has not acknowledged her conduct was inappropriate and caused actual harm to a vulnerable service user.

Ms Hickey had previously received a reprimand and despite this, she had not altered her behaviour.

It is his view that Ms Hickey is an unacceptable risk to vulnerable clients.

There were no direct service roles into which he could be comfortable Ms Hickey could be transferred.

He does not believe it would be possible to re-establish a workable employer-employee relationship with Ms Hickey.

During the process, Ms Hickey sought to minimise and trivialise the incident. She continues to deny any accountability for the injuries and therefore Mr Lupi believes she has not learnt from what has occurred.

He does not believe that Ms Hickey made a genuine error. Her conduct caused actual harm to a service user.

It would not be in the public interest or in the interest of the service users for Ms Hickey to return to employment with the Department.

Ms Hickey's version of events changed over time, was inconsistent with information provided by others and was unconvincing and at times implausible." (emphasis added)

• [26] The evidence described in the second bullet point above is clearly enough the erroneous evidence which appears at paragraph 11 of Mr Lupi's statement and which I have previously explained. The assertion at the bullet point, which is Mr Lupi's evidence recorded by the Industrial Commissioner, is obviously, in my respectful view, incorrect. There is no allegation of adverse "behaviour" by Ms Hickey after August 2017. The "behaviour" referred to in the bullet point must be a reference to the incidents on 1, 2 and 10 April 2017 and which are the subject of the disciplinary action which led to Ms Hickey's dismissal.
• [27] The only sensible way of reading the bullet point is that:

(b) "Despite this", that is, receiving the reprimand, she committed the behaviour on 1, 2 and 10 April 2017.

• [28] After recording Mr Lupi's evidence, the Industrial Commissioner went on:

"[130] It was put to Mr Lupi under cross-examination that the conduct that was the subject of the disciplinary reprimand Ms Hickey had received previously was completely different to the three events that are the subject of this trial. He disagreed:

'I don't concur. I think failing to follow clear plans for vulnerable clients, to ensure their protection, care, and wellbeing, is entirely consistent, whether it's preparing meals for them, leaving them unsupervised, or appropriately transferring them from one service environment to the other.'

[131] It was put to Mr Lupi that if there was an error in Ms Hickey's conduct, that this could have been corrected by proper training, in consideration that she had worked for the Department for 16 years. Mr Lupi replied that he would have expected 'that someone who'd been there for 16 years wouldn't need that level of primary and fundamental correct of followed [sic] basic procedures."

• [29] The Industrial Commissioner ultimately found after recording various submissions of the parties:

"[154] When considering the 'entire factual matrix' surrounding the termination, I feel that the decision of the Department was sound, reasonable and defensible.

[155] I have considered Ms Hickey's submission that the dismissal is harsh, unjust and unreasonable given her social obligations and economic status.

[156] I do not consider that the impact on Ms Hickey of loss of income outweighs the gravity of her conduct and failure in her duty of care to the intellectually and physically impaired service users in her care.

[157] In all of the circumstances, I am unwilling to interfere in the decision of the Department to terminate Ms Hickey's employment."

• [30] Mr Healy submitted that there was nothing in the Industrial Commissioner's judgment whereby she specifically stated that she took into account that there had been a warning. As far as it goes, that submission can be accepted, however, the submission does not advance the position of the department. It is obvious from the passage at paragraph [129] of the Industrial Commissioner's judgment that she understood Mr Lupi's evidence as asserting that the conduct had occurred "despite the reprimand", or in other words, in defiance of it.
• [31] As a matter of law Ms Hickey was entitled to have the Industrial Commissioner consider her application on the basis that she did not receive a warning relevantly to s 320. There is nothing in the judgment to suggest that the Industrial Commissioner proceeded on that basis. Quite the contrary, she seems to have accepted Mr Lupi's evidence as appears at the second bullet point of paragraph [129] which I have underlined, and then confirmed the validity of the dismissal.
• [32] The right of appeal to this court is bestowed by s 557. That provides relevantly:

(1) The Minister or another person aggrieved by a decision of the commission may appeal against the decision to the court on the ground of -

• [33] The finding by the Industrial Commissioner that the dismissal was not unfair, was not an exercise of discretion. However, it was a value judgment made by a decision maker vested with powers which arise consequent upon such a finding. Such determinations may only be set aside if vitiated by error.[4] Here there has been an error of law. The Industrial Commissioner has, for the reasons I have given, wrongly concluded that the reprimand which was received by Ms Hickey after she allegedly committed the conduct which led to her dismissal, was a "warning" for the purposes of s 320(c)(i). Acting on that error, the Industrial Commissioner failed to take into account that the conduct which led to the dismissal occurred in the absence of any prior warning.
• [34] Given that Ms Hickey was a long-term employee who had relevantly never been warned, the error was significant and the decision of the Industrial Commissioner cannot be allowed to stand. Section 558 of the IR Act identifies the powers of the court on an appeal. Relevantly:

(1) On an appeal under section 556 or 557, the court may -

(b) allow the appeal, set aside the decision and substitute another decision; or

(d) allow the appeal, suspend the operation of the decision and remit the matter, with or without directions, to the commission or an Industrial Magistrates Court to act according to law. ..."

• [35] Consistently with the reasons I have just given, I allowed the appeal. The absence of a warning is just one of many matters which may be relevant to an unfair dismissal application. The assessment of those matters depends, at least to some point, upon an assessment of the witnesses, which of course, I have not heard. In those circumstances it was not possible for me to substitute my own decision, and so I remitted the matter.
• [36] It would be inappropriate and particularly unfair, I think, to Industrial Commissioner Pidgeon, to remit the matter back to her, requiring the Industrial Commissioner to reconsider the matter, but, contrary to her earlier finding, consider the case on the basis that no warning had been given. That is to unreasonably expect her to undertake an artificial exercise in difficult intellectual gymnastics.
• [37] For that reason and for absolutely no reason adverse to the Industrial Commissioner, it was appropriate to remit the matter to a differently constituted Industrial Commission. I did so.
• [38] Both parties indicated that costs were not an issue. I therefore made no order as to costs.

[1] See SZTAL v Minister for Immigration and Border Protection [2017] HCA 34; (2017) 262 CLR 362 at 368, [14], 374-375, [35] to [40]. See also SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 at 149, [20] and 157, [41]. For a consideration of the concept of "purpose", see the analysis of Edelman J in Unions NSW v New South Wales [2019] HCA 1; (2019) 264 CLR 595 at 656, [168] to 657, [172].

[2] See generally McCarron v Commercial Facilities Management Pty Ltd T/A CFM Air Conditioning Pty Ltd [2013] FWC 3034 at [32].

[3] See transcript of 14 October 2019, T1-56.

[4] See Norbis v Norbis [1986] HCA 17; (1986) 161 CLR 513.