Nesbit v Metro North Hospital and Health Service [2021] ICQ 5

Nesbit v Metro North Hospital and Health Service [2021] ICQ 5 | Case summary | Zoe

[24]

[4] Mr Nesbit has had a long career as a nurse. He gained his registration as a nurse in 1991. His qualifications included hospital based training and university study. Apart from about three and a half years when Mr Nesbit worked at the Wesley Hospital, and a period of secondment to the Prince Charles Hospital, his entire career has been spent with the Service at the hospital.
[5] It is not necessary to analyse the particulars of Mr Nesbit's entire career, although some aspects are relevant to the determination of the appeal.
[6] In 2005, the Service established the Patient Flow Unit (PFU). The PFU consists of a group of coordinated services which support the entry of patients into the hospital, their movement through the hospital and their discharge from the hospital and reintegration into the community. The PFU at the hospital was one of the first of its kind and is a ground-breaking service.
[7] Mr Nesbit was involved in the conception of the PFU and he was appointed its inaugural Nursing Director. He held that position until he was dismissed, although he was, for a time, seconded to another position.
[8] The position of Nursing Director of the PFU is a senior position. It is a Level 12 nursing position. Approximately 350 employees indirectly report to the PFU Nursing Director. Twenty-one full-time employees are under the direct supervision of the PFU Nursing Director.
[9] As Nursing Director of the PFU, Mr Nesbit reported to the Executive Director of Nursing and Midwifery Services. That position was held by Ms Alanna Geary. It is fair to say, in a neutral way, that the circumstances which led to Mr Nesbit's dismissal are inextricably intertwined with what became a difficult working relationship between Mr Nesbit and Ms Geary.
[10] Dr Amanda Dines held the position of Executive Director of the hospital. Mr Shaun Drummond was the Chief Executive Officer of the Service. Ultimately, Dr Dines issued a show cause notice to Mr Nesbit and Mr Drummond dismissed him.
[11] By April 2017, Ms Geary had complained about Mr Nesbit's work performance. That led to a direction being given to Mr Nesbit to attend an Independent Medical Assessment (IMA) by a psychiatrist. Mr Nesbit did not accept the validity of that direction but, in the spirit of resolving the issues that had arisen in the workplace, he submitted to the examination.
[12] While the report on the IMA is not in evidence either before the QIRC or before me, Mr Nesbit said that the report recommended that Ms Geary not be Mr Nesbit's direct report.
[13] After the IMA report was received, and probably as a consequence of it, Mr Nesbit was seconded to the Prince Charles Hospital. That secondment was not successful in that Mr Nesbit was underutilised. He returned to the hospital on 5 July 2018 and resumed his role as Nursing Director of the PFU.
[14] By early 2018, moves were afoot to appoint a permanent Assistant Nursing Director of the PFU. Ms Cartlidge-Gann had been acting in the role for some time. She applied for the position but was unsuccessful. Ms Tracy Daelman was the successful applicant.
[15] The holder of the position of Assistant Nursing Director of the PFU would report directly to the Nursing Director; Mr Nesbit. It was initially planned that Mr Nesbit would be on the selection panel but Ms Geary later decided that he would not be part of it. The allegations levelled against Mr Nesbit all relate, directly or indirectly, to the processes which led to Ms Daelman's appointment.
[16] Dr Dines issued a show cause letter to Mr Nesbit on 1 November 2018. This contained seven allegations, although allegations 3, 4 and 5 were grouped and particularised together.
[17] The allegations, with the particulars, are as follows:

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[18] It is necessary to understand how the various disciplinary allegations interrelate.
[19] Mr Nesbit was aggrieved at being omitted from the selection panel for the position of Assistant Nursing Director of the PFU. Ms Cartlidge-Gann, who, as already observed, was acting in the position for some two years, was aggrieved by the decision to appoint Ms Daelman. Ms Cartlidge-Gann wanted assistance in challenging the appointment. Ultimately though she did not lodge an appeal. Whether Ms Cartlidge-Gann enlisted Mr Nesbit, or Mr Nesbit initiated Ms Cartlidge-Gann's actions, is a matter of contention, but one that need not be resolved.
[20] Against that background, allegation 1 emerges. There, it is alleged that information given to Mr Nesbit by Ms Cartlidge-Gann concerning her complaints about the selection process was disclosed by him to Ms Daelman. This was alleged to have breached Ms Cartlidge-Gann's privacy.
[21] Allegation 2 concerns the alleged misuse by Mr Nesbit of his mobile telephone provided to him by the Service. Those allegations included that he was using the telephone service to telephone Ms Cartlidge-Gann over the period where he was advising and assisting her in her proposed challenge to the decision to appoint Ms Daelman as Assistant Nursing Director of the PFU.
[22] Allegations 3, 4 and 5 also relate to the appointment of Ms Daelman as Assistant Nursing Director of the PFU. Emails were tendered into evidence sent by Mr Nesbit where Mr Nesbit criticises the process leading to the appointment and expresses hope that he would chair the next panel.[8] Emails were sent on the Queensland Health system[9] and allegedly derogatory language was used about staff of the Service in those emails.[10]
[23] Allegation 6 is based on an email from Mr Nesbit to Ms Cartlidge-Gann. In that email, Mr Nesbit spoke of trashing emails which he had sent. The Service alleged that was a reference to the emails sent in the commission of allegations 3, 4 and 5.
[24] Allegation 7 concerns conversations between Mr Nesbit and Ms Geary. These occurred after the selection process and after the events the subject of allegations 3, 4 and 5. At this point, Mr Nesbit was answerable to Ms Geary. It was alleged that on two occasions Mr Nesbit untruthfully told Ms Geary that he had not been in contact with Ms Cartlidge-Gann when it was alleged he had been assisting her with her proposed challenge to the appointment of Ms Daelman.
[25] Various responses to the allegations were made by Mr Nesbit. It is unnecessary to go into further detail of the disciplinary process. Mr Nesbit, as I will later explain, alleges that allegations concerning his performance as an employee (beyond the seven allegations) were taken into account without him being given the opportunity to respond to those issues. Apart from that discrete complaint, there is no allegation by Mr Nesbit that he was not afforded natural justice in the process which eventuated in his dismissal.
[26] Dr Dines considered that Mr Nesbit had contravened, without reasonable excuse, various principles of the relevant code of conduct and recommended Mr Nesbit's dismissal. On 8 March 2019, Mr Drummond determined that Mr Nesbit ought to be dismissed and gave him notice accordingly.
[27] An application for reinstatement alleging unfair dismissal[11] was filed in the QIRC by Mr Nesbit. In that application, he asserted the following grounds:

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[49] Ground 5 suggests a challenge at least to some of the inferences drawn by the Industrial Commissioner. The other grounds seem only to raise an issue as to whether or not the decision of dismissal was excessive in all the circumstances.
[50] An outline of submissions was filed by Mr Nesbit to which I shall return.
[51] Mr Nesbit represented himself on the appeal. He was obviously nervous. He clearly felt uneasy submitting that Industrial Commissioner Hartigan erred in her decision, but at the same time not wishing to be disrespectful to her. The nature of an appeal is the identification of error that necessarily involves levelling criticism at the decision at first instance. Mr Nesbit presented his case clearly and conducted himself impeccably during the appeal.
[52] Mr Nesbit's written submissions, which he supported with oral submissions at the hearing of the appeal, identified a number of issues beyond the grounds of appeal. Properly, in my view, Ms Freeman of Counsel for the Service took no point about this and was prepared to meet the issues raised. She did though take objection to the raising of issues on appeal which were not litigated before the QIRC.
[53] Many of Mr Nesbit's complaints concern findings of fact rather than errors of law. The Service rightly observed that the raising of such grounds can only be done by leave and leave had not been formally sought. However, at the hearing of the appeal, Mr Nesbit submitted that if any ground he wished to argue required leave, then leave should be granted. He submitted that the following factors should result in the grant of leave:
1. he was a very long-term employee of the Service;
2. he has never before been the subject of disciplinary proceedings;
3. he had achieved at a high level of performance for many years in senior positions;
4. it is in the public interest to keep experienced health professionals working and therefore if his dismissal was a result of a factual error, he ought to be able to succeed on that.
[54] There were two parts to the Industrial Commissioner's judgment. The first was as to the finding that each of the seven allegations were proved. The second was that, based on these findings, the dismissal was not harsh, unjust or unreasonable. The matters raised on the appeal can be looked at in those two categories.

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[79] I am not convinced that Mr Nesbit, in his initial written submissions, set out to allege bias against the Industrial Commissioner. My interpretation of his initial submissions is that the raising, by the Service of performance issues beyond the seven allegations had flavoured the evidence and in that way created a bias against him. It was more a submission that irrelevant evidence had been admitted and taken into account.
[80] If that was the submission being made in the initial written submissions, then that submission ought to be dismissed. For the reasons I have already given, there is nothing to suggest that alleged performance issues beyond the seven allegations were taken into account by either Mr Drummond or the Industrial Commissioner. Mr Drummond specifically relied only upon allegations 3, 5 and 6 in determining to dismiss Mr Nesbit. The Industrial Commissioner very clearly relied only on the proved conduct in finding that the dismissal was not harsh, unjust or unreasonable.
[81] As already observed, once the Service categorised Mr Nesbit's submissions as an allegation of bias against the Industrial Commissioner, Mr Nesbit then made such an allegation in his reply submissions.
[82] A body making either an executive or judicial decision must be free from the perception of bias. An apprehension of bias will exist and will vitiate the decision where a fair-minded lay observer might reasonably apprehend that the decision-maker has not brought an impartial mind to the process of deciding the issue before them.[22]
[83] What Mr Nesbit submits is that because of what he says are repeated claims of poor and inappropriate performance, the Industrial Commissioner may be seen to have been influenced and therefore biased in the sense of deciding the case other than on the true issues. As already explained, the Industrial Commissioner did not, at least on the face of her very detailed judgment, take into account any conduct of Mr Nesbit beyond the seven particularised matters. The submission must be that having heard of the other conduct, the Industrial Commissioner subconsciously took that into account.
[84] There is nothing to suggest that has occurred. There is nothing to suggest that, having directed herself on the allegations made against Mr Nesbit and the evidence relevant to those allegations, that her decision was affected by something else. It is not uncommon for evidence which is irrelevant to come into a proceeding and then be correctly ignored by the decision-maker. Indeed, the High Court has recognised that lay jurors in a criminal trial follow the directions of trial judges as to the use of evidence.[23]
[85] The bias allegation has not been made out.

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[93] As previously observed, Mr Nesbit submits that even if the seven allegations are proved, the penalty of dismissal was still harsh, unjust or unreasonable as the principles applying to that test were explained in Bostik (Aust) Pty Ltd v Gorgevski (No 1).[28]
[94] The decision of the Industrial Commissioner was to make a judgment as to whether in all the circumstances the dismissal was "harsh, unjust or unreasonable". Her judgment was both informed and constrained by s 320 of the Industrial Relations Act which prescribes the circumstances which must be taken into account in such an assessment.
[95] Ultimately, the decision to find or not find the dismissal "harsh, unjust or unreasonable" is not an exercise of discretion. However, it is a matter of judgment and assessment which will only be set aside if one of the House v The King[29] errors is found.[30]
[96] Here, Mr Nesbit made various complaints, some of which were not made to the QIRC.[31] There is no reason justifying the receipt of those new grounds at this point.
[97] It was alleged, for the first time on appeal, that like conduct within the Service had not resulted in the dismissal of others. There is no justification for enquiring now into whether that is in fact the case. More broadly, Mr Nesbit alleges a lack of parity.
[98] Parity is a principle of criminal sentencing which is well-established.[32] The principle (very broadly stated) is that like offenders should be treated similarly.
[99] Disciplinary proceedings differ from criminal proceedings in that the aim of discipline is not to punish but to protect the public.[33] However, as explained by the High Court in Rich v Australian Securities and Investments Commission,[34] those aims are achieved by the imposition of actual punishment. Despite the difference in the nature of disciplinary and criminal proceedings, it is generally accepted that the principle of parity applies to disciplinary proceedings.
[100] Mr Nesbit points to the decision of Fair Work Australia in Lawrence v Coal & Allied Mining Services Pty Ltd.[35] That was a case where a senior long-term employee with no previous disciplinary record (like Mr Nesbit) was not dismissed. However, the parity principle requires that all circumstances in the respective cases be taken into account. Lawrence was a case very different to the present. It involved a safety breach which was a momentary lapse. The employee showed remorse. It is not enough for Mr Nesbit to point to a case where a long-standing employee of good record was not dismissed for a serious employment breach and then assert a lack of parity.
[101] There is no discernible error in Industrial Commissioner Hartigan's reasons for finding that the decision was not harsh, unjust or unreasonable. She took into account the relevant statutory considerations. She otherwise directed herself correctly on the law. There is no identified factual error and she has taken into account all relevant considerations. The only real criticism was that she took into account unspecified performance issues beyond the seven particular complaints. I have earlier rejected that submission.
[102] The only remaining argument available to Mr Nesbit is that the dismissal is manifestly excessive and therefore beyond the exercise of reasonable judgment.
[103] In my view, Mr Nesbit fails on that ground also. While he was a long-term employee of good record, these were serious breaches of the Code of Conduct by a senior employee in a position involving a high degree of trust and responsibility. The breaches seriously eroded that trust. It was clearly open for the Industrial Commissioner to find that the dismissal was not harsh, unjust or unreasonable.

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Cases Cited (16)