Perry v State of Queensland

Public Sector Act 2022 (Qld) s 3, s 4, s 40, s 85,

s 86, s 90, s 91, s 133,

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521

Gilmour v Waddell & Ors [2019] QSC 170

Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018)

Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332

Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170

• [1] Mrs Andrea Perry is employed as a Team Leader, Operational Services (004) at the Gold Coast University Hospital (GCUH), within the Gold Coast Hospital and Health Service (GCHHS; the Service).

• [2] Mrs Perry has been engaged as a Team Leader, Operational Services at the GCUH since September 2013.

• [3] Two allegations regarding Mrs Perry's workplace conduct were investigated by Mr Des Lacy, Associate and Senior Investigator of Corpsec International Pty Ltd. Those allegations were:

1. That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you

1. obtained a uniformed polo shirt designed for an Environmental Services Porterage employee and provided it to Tania Walker, a person who was not authorised to possess this apparel, and

2. you did so knowing that Tania Walker intended using this apparel to gain unauthorised access to a patient during a period of COVID lockdown within the Gold Coast University Hospital

Conduct which compromised patient safety and the reputation of the Gold Coast Hospital and Health Service.

2. That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services Unit, Gold Coast Hospital and Health Service you failed to comply with a Public Health Directive, restricting personal visitations in Queensland Hospitals, by visiting a patient in Ward C at the Gold Coast University Hospital. A directive which was known to you at the time. This conduct compromised patient safety and the reputation of the Gold Coast Hospital and Health Service.

• [4] Mr Lacy concluded that the allegations were capable of being substantiated. His findings were contained in an investigation report dated 27 November 2021.

• [5] Mr Grant Brown (the decision maker) formed the view that Mrs Perry may be liable to disciplinary findings, so a show cause process ensued. Mr Brown reframed the two allegations as follows:

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services

Unit, Gold Coast Hospital and Health Service you obtained a uniformed polo shirt designed for an

Environmental Services Porterage employee and provided it to Tania Walker, a person who was

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services

Unit, Gold Coast Hospital and Health Service you failed to comply with a Public Health Directive,

restricting personal visitations in Queensland Hospitals, by visiting a patient in Ward C at the Gold

• [6] Mrs Perry was invited to provide a written response to the reframed allegations, including "any explanation of the matters above that you may consider relevant and any supporting documentation".

• [7] The numerous documents, materials and the Investigation Report were provided to Mrs Perry at that time, noting also that would be considered by Mr Brown in relation to the allegations. The Allegations Letter further offered Mrs Perry an opportunity to view the CCTV footage "taken during the incidents on 12 July 2021" to assist in the preparation of her response.

• [8] On 4 April 2022, Mrs Perry responded to the allegations with the assistance of her union - the Australian Workers Union (AWU). The response summary prepared by the AWU clarified that:

a) Showed Ms Walker to where the patient was located within the hospital;

b) That she gave the polo shirt to Ms Walker;

a) Denies that she gave the polo shirt to Ms walker for the purposes of granting her access to restricted areas within the hospital;

b) Denies that she and Ms Walker had a conversation in the elevator prior to them visiting the patient as described in a);

c) Denies that Ms Walker wore the polo to enter the restricted hospital ward or whilst Ms Walker visited the patient or wore the polo after visit;

d) Denies that she and other staff members understood that the Covid-19 Lockdown Hospital Entry Direction (No. 1) ordered by the CHO applied to staff members of the Hospital.

• [9] The disciplinary finding decision was conveyed to Mrs Perry, in correspondence from Mr Grant Brown dated 26 April 2023 (the Decision Letter). Mr Brown determined that both allegations were substantiated on the balance of probabilities.

• [10] On the basis of his finding that the allegations were both 'substantiated', Mr Brown's disciplinary findings were that (emphasis added):

... pursuant to section 91(1)(h) of the Act (previously section 187(1)(g) of the Public Service Act 2008) you contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

• [11] With respect to Allegation 1, the Decision Letter conveyed to Mrs Perry that the relevant standard of conduct breached was cl 1.1 of the Code of Conduct as follows:

As public service employees we are required to ensure that our conduct meets the highest ethical standards when we are fulfilling our responsibilities.

• [12] With respect to Allegation 2, the Decision Letter conveyed to Mrs Perry that the relevant standard of conduct breached was cl 4.1 of the Code of Conduct as follows:

We have an obligation to seek to achieve high standards of public administration and perform our duties to the best of our abilities.

• Comply with all reasonable and lawful instructions, whether or not we personally agree with a given policy direction.

• [13] In the Decision Letter dated 26 April 2023, Mr Brown concluded that:

On the basis of my findings in relation to the allegations against you and my determination that the above discipline grounds exist, I am now considering whether disciplinary action should be taken against you.

In relation to the taking of a disciplinary action, I am currently giving serious consideration to the disciplinary action of the termination of your employment.

In accordance with the principles of natural justice, no final determination of the disciplinary action to be taken has been made, or will be made, until you have had the opportunity to respond.

• [14] Mrs Perry submits that both Mr Brown's decision to substantiate the two allegations against her (the disciplinary finding decision) and the disciplinary action proposed are unfair and unreasonable.[1]

• [15] On 10 May 2023, Mrs Perry filed an Appeal Notice against the decision and appointed the AWU as her representative in this matter.

• [16] The following day, I issued a Directions Order to hear the parties and to stay the disciplinary finding decision until the determination of the Appeal or further order of the Commission.[2]

• [17] Mrs Perry submitted that the "substantiation of the allegations and overall penalty proposed is unfair and unreasonable" on the following grounds:

a. Unfair and/or unreasonable pursuant to the allegations being substantiated despite the evidence not supporting the conclusions drawn.

b. Unreasonable on the basis that the Respondent retroactively applied the provisions of Chief Health Officer (CHO) Directive No. 4 (effective from 04 September 2021) to substantiate the allegations against the Appellant despite CHO Directive No. 1 being in-force at the time of the incident on 12 July 2021.

c. Further to paragraph 7(b) herein and perhaps alternatively, unreasonable pursuant to CHO Directive No. 4 providing for an exception for hospital staff to enter areas restricted by COVID-19.

d. Unfair and/or unreasonable on the basis that the Respondent has not appropriately considered or otherwise completely disregarded critical evidence in contravention of the principles in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336.

e. Unfair and/or unreasonable pursuant to the Respondent relying on material not provided to the Appellant.

f. Unfair on the basis of the mitigating circumstances identified by the Appellant in her show cause responses.

g. Unfair in consideration of disproportionate nature of the disciplinary action proposed by the Respondent. (not getting into that here)

h. Unfair or otherwise in consideration of the Appellant's previously unblemished employment record.[3]

• [18] The Appeal was filed on 10 May 2023. The Public Sector Act 2022 (Qld) (PS Act) came into effect on 1 March 2023. It is not disputed that the decision subject of this appeal was made under the new PS Act, and that this appeal must be heard and decided under the new PS Act.

• [19] Section 131 of the PS Act identifies the categories of decisions against which an appeal may be made. This Appeal was filed under s 131(1)(c), "a disciplinary decision."

• [20] Section 133 of the PS Act outlines who may appeal a disciplinary decision - a public sector employee ... aggrieved by the decision if the employee is entitled to appeal under a directive." As an employee of the Respondent, Mrs Perry is eligible to appeal.

• [21] I am satisfied that the disciplinary finding decision made by GCHHS pertaining to Mrs Perry, contained in the Decision Letter dated 26 April 2023, can be appealed.

• [22] However, the proposed disciplinary action of 'termination of employment' cannot be appealed at this time because it is not yet a 'decision'. The show cause process is yet to run its course to a final determination regarding any disciplinary action that may yet be imposed. As no decision has been made in relation to a disciplinary action, that element of the Decision Letter cannot be appealed.

• [23] Section 564(3) of the Industrial Relations Act 2016 (Qld) (IR Act) requires that an appeal be lodged within 21 days after the day the decision appealed against is given.

• [24] The decision was given to Mrs Perry on 28 April 2023.

• [25] The Appeal Notice was filed with the Industrial Registry on 10 May 2023.

• [26] I am satisfied that the Appeal was filed by Mrs Perry within the required timeframe.

• [27] Section 562B(3) of the IR Act provides that the purpose of a public service appeal is "to decide whether the decision appealed against was fair and reasonable."[4] This is the key issue for my determination.

• [28] A public sector appeal under the IR Act is not by way of rehearing,[5] but involves a review of the decision arrived at and the decision-making process associated therewith.

• [29] Section 562B(4) of the IR Act provides that (emphasis added):

For an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the commission -

(a) must decide the appeal having regard to the evidence available to the decision maker when the decision was made; but

(b) may allow other evidence to be taken into account if the commission considers it appropriate.

• [30] Pursuant to s 451(1) of the IR Act, this matter has been decided without a hearing.

What decisions can the Industrial Commissioner make?

• [31] In deciding this appeal, s 562C of the IR Act provides that the Industrial Commissioner may:

• confirm the decision appealed against; or
• set the decision aside and substitute another decision; or
• set the decision aside and return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.

• [32] In accordance with the Directions Order issued on 11 May 2023, the parties filed written submissions.

• [33] The Respondent's Submissions were filed on 14 June 2023.

• [34] The Appellant's Reply Submissions were filed on 27 June 2023.

• [35] I have carefully considered all submissions and materials. I have determined not to approach the writing of this Decision by summarising the entirety of those submissions and attachments but will instead refer to the parties' positions in my consideration of each question to be decided.

... to provide a framework for a fair and integrated public sector that serves the people of Queensland and the State.[6]

• [37] How that is primarily achieved is set out at s 4, including:

The main purpose of this Act is to be achieved primarily by -

(c) creating a public sector that ensures fairness in the employment relationship and fair treatment of its employees by-

(i) providing for the key rights, obligations and employment arrangements of public sector employees; and

(v) ensuring fair and accountable decision-making, including by providing public sector employees with access to fair and independent reviews and appeals; and

(vi) setting a positive performance management framework for public sector employees; and

(vii) fixing principles to guide public sector managers and the work performance and personal conduct of public sector employees; and

(d) establishing a high-performing, apolitical public sector by effective stewardship that-

(v) ensures public resources are managed efficiently and their use is accountable.

• [38] Section 40 of the PS Act relevantly provides as follows:

(1) In recognition that public sector employment involves a public trust, the work performance and personal conduct of each public sector employee should be guided by the following principles (the work performance and personal conduct principles) -

(b) ensuring the effective, efficient and appropriate use of public resources;

(c) giving effect to government policies and priorities;

(d) collaborating with other public sector entities with a focus on public sector-wide priorities in addition to priorities specific to particular public sector entities, if appropriate and while recognising the need for independence of particular public sector entities;

(e) providing sound and impartial advice to government;

(f) continuously improving work performance, including through training and development;

(g) carrying out duties impartially and with integrity;

(h) acting honestly, fairly and in the public interest;

(i) interacting with staff members under the Ministerial and Other Office Holder Staff Act 2010 respectfully, collaboratively and with integrity;

(k) ensuring the employee's personal conduct does not reflect adversely on the reputation of the public sector entity in which the employee is employed;

(l) observing the ethics principles under the Public Sector Ethics Act 1994, section 4;

(m) complying with an approved code of conduct and any approved standard of practice as required under the Public Sector Ethics Act 1994, section 12H or 18.

(2) A public sector manager must take all reasonable steps to ensure each public sector employee under the manager's management is aware of the following matters -

(a) the work performance and personal conduct expected of the employee;

(c) the values of the public sector entity in which the employee is employed;

(d) for a public service employee - the values of the public service;

(e) what constitutes corrupt conduct under the Crime and Corruption Act 2001.

(a) provide working environments in which all public sector employees are -

(ii) assigned work according to the employee's responsibilities as reflected in remuneration rates; and

(b) consider and give effect to the following matters when undertaking management responsibilities -

(ii) the values of the public sector entity in which the employee is employed;

(iii) if the manager is a public service employee - the values of the public service; and

(c) ensure fairness and integrity in performing managerial functions, including when making decisions; and

(d) undertake best practice human resource management, including the application of the positive performance management principles in the following ways -

(i) pro-actively managing the work performance and personal conduct of public sector employees;

(ii) constructively engaging with public sector employees to identify development and training opportunities, improve work performance, and build expertise in the public sector;

(iii) taking prompt and appropriate action to address any unacceptable work performance or personal conduct that arises; and

(e) take personal responsibility for development as a manager.

(4) A chief executive of a public sector entity has overall responsibility for -

(a) ensuring the entity performs its functions in a way consistent with -

(ii) the ways in which the main purpose of the Act is to be primarily achieved; and

(b) ensuring managers within the entity perform managerial functions in accordance with the positive performance management principles; and

(c) ensuring public sector employees have access to fair and independent reviews and appeals; and

(d) ensuring the entity has workforce and human resource planning and practices, including systems for the regular review of employment arrangements for public sector employees.

If the chief executive is an accountable officer under the Financial Accountability Act 2009, see also the responsibility of the chief executive to develop the strategic plan and operational plan under the Financial and Performance Management Standard 2019, section 8.

• [39] Sections 85 and 86 of the PS Act relevantly provides as follows:

85 Positive performance management principles

(1) For best practice human resource management and in recognition that public sector employees are selected based on recruitment and selection processes under chapter 3, part 3, the management of public sector employees must be directed towards the following principles (positive performance management principles) -

(a) pro-actively managing the professional and personal development of public sector employees with a view to continuously building expertise within the public sector;

(b) ensuring regular and constructive communication between public sector managers and employees about the work performance and personal conduct principles;

(c) recognising the strengths, requirements and circumstances of individual employees and valuing their contributions;

(d) recognising performance that meets or exceeds expectations;

(e) providing opportunities and support to employees for improving performance;

(f) continuously improving performance through the provision of training and development;

(g) identifying at the earliest possible stage performance that does not meet expectations;

(h) integrating the matters mentioned in paragraphs (a) to (g) into management practices and policies.

(2) The commissioner must make a directive about how the positive performance management principles are to be applied.

1. Requirement to apply positive performance management principles before taking disciplinary action

A public sector employee's chief executive must not take disciplinary action against the employee for a matter relating to the employee's performance until the chief executive has complied with a directive made under section 85(2) about applying the positive performance management principles in relation to the matter.

• [40] Section 92 of the PS Act defines the following terms:

(1) Disciplinary action is any action relating to employment, including, for example, any of the following actions -

(a) termination of employment;

(b) reduction of classification level and a consequential change of duties;

(c) transfer or redeployment;

(d) forfeiture or deferment of a remuneration increment or increase;

(e) reduction of remuneration level;

(f) imposition of a monetary penalty;

(g) if a penalty if imposed, a direction that the amount of the penalty be deducted from

• [41] Directive 05/23: Discipline (Discipline Directive) relevantly provides:

4.2 Chief executives are required to act in a way that is compatible with the main purpose of the Act and how the main purpose is achieved, including fair treatment of public sector employees.

4.3 Under the Human Rights Act 2019 decision makers have an obligation to:

a. act and make decisions in a way that is compatible with human rights, and

b. give proper consideration to human rights when making a decision under the Act and Public Sector Commissioner (Commissioner) directives.

4.7 A disciplinary process is not a substitute for management action and the need for managers to undertake early intervention to address unacceptable conduct. Early intervention, even in the context of a likely disciplinary process, provides the best opportunity for:

d. avoiding an unnecessary and disproportionately protracted dispute

4.8 Discipline is not appropriate for matters that may be dealt with through management action, which may include use of alternative dispute resolution, use of warnings, or other management action that is reasonable in the circumstances.

4.9 A chief executive must not take disciplinary action against an employee for a matter relating

to the employee's performance until they have complied with the positive performance

a. be conducted in in a timely way, to the extent that is within the control of the chief executive, and without any unreasonable unexplained delay, and

b. be fair, appropriate and proportionate to the seriousness of the work performance matter, and

c. comply with the requirements of the Act, the provisions of this directive and the

1. Requirements to commence a discipline process

7.1 Section 91 of the Act provides that a chief executive may discipline an employee if they are reasonably satisfied a ground for discipline arises. 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 as set out in section 91(4) of the Act. An act or omission that is not compatible with a principle on its own, does not give rise to a disciplinary ground if the act or omission does not meet the threshold of the disciplinary grounds at section 91.

7.2 Where a work performance matter arises that may constitute a ground for discipline under section 93 of the Act, a chief executive must determine whether to commence a disciplinary process. In making this determination, the chief executive must assess:

a. the seriousness of the employee's personal conduct and/or work performance, and

b. whether the matter should be resolved through management action instead, and

c. whether the matter is a Public Interest Disclosure under the Public Interest Disclosure Act 2010 and/or whether the matter must first be referred to the Crime and Corruption Commission, Queensland Police Service or other regulatory agency for assessment, and

d. whether management action would alleviate or mitigate the impact of the alleged conduct on the employee, their colleagues, the workplace, the complainant, and the reputation of the public sector, and

e. whether management action has recently been taken for previous similar instance/s of inappropriate conduct, and the management action did not result in sustained correction of the employee's conduct, and

f. if the contravention is of a more serious nature, but is a single and/or isolated incident of poor conduct (that is, not a pattern of unreasonable behaviours), whether the chief executive has reasonable concerns about the employee's potential for modified behaviour through management action that clarifies the expected standards of conduct and provides the opportunity and support for the employee to demonstrate sustained correction of their conduct, and

g. whether further information is required to make a decision to commence a disciplinary process, and

h. for a breach of relevant standard of conduct under section 91(1)(h) , that it is sufficiently serious to warrant disciplinary action because the chief executive forms a view that management action is not likely to adequately address and/or resolve the work performance matter.

7.3 Section 86 of the Act provides that a chief executive must not take disciplinary action against an employee for a matter relating to the employee's performance until the chief executive has complied with the directive about positive performance management.

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.

• [42] My consideration of whether or not the disciplinary findings made against Mrs Perry are fair and reasonable are informed by factors including:

• Whether Mrs Perry engaged in the conduct, subject of the two allegations;
• Whether the chief executive is 'reasonably satisfied' that Mrs Perry "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action." (That is, whether the discipline ground has been established, as the basis upon which any subsequent consideration of whether or not disciplinary action should be taken may be made); and
• Whether procedural fairness was afforded to Mrs Perry.

• [43] My determinations may be summarised as follows:

• Mr Brown's determination to substantiate the two allegations was fair and reasonable because the conduct alleged did occur.
• The chief executive can be reasonably satisfied that the disciplinary ground has been established.
• Procedural fairness was afforded to Mrs Perry.
• The disciplinary finding then was fair and reasonable.

• [44] Mr Brown determined to substantiate the two allegations against Mrs Perry on the 'balance of probabilities'. The wording of Briginshaw v Briginshaw ('Briginshaw')[7] is incorporated into the Disciplinary Directive, and there is no contention that said principle does not apply in this instance.

• [45] The Discipline Directive prescribes that:

... 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:

• relevance of the evidence to the allegations
• seriousness of the allegations
• inherent likelihood or improbability of a particular thing or event occurring
• gravity of the consequences flowing from a particular finding.[8]

• [46] In civil matters, the standard of proof is the balance of probabilities.[9] The relevance of Briginshaw is that their Honours found that the strength of evidence required to satisfy that standard of proof is not fixed. As explained by Dixon J in Briginshaw:

... 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 facts to be proved. The seriousness of an allegation made, the inherent unlikelihood of an occurrence of a 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...

(The) nature of the issue necessarily affects the process by which reasonable satisfaction is attained.[10]

• [47] It may also be relevant to consider the evidence that would reasonably be expected to exist if the events alleged did indeed occur. It should be noted that circumstantial evidence is not excluded by Briginshaw or the concept of an 'exactness of proof'. Indeed, it is not unusual even for matters considered on the more onerous criminal standard of proof to be proved entirely with circumstantial evidence. In Chamberlain v The Queen (No 2) [11] Gibbs CJ and Mason J provided:

When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged ...[12]

• [48] The question is then whether it was open for the decision maker to be reasonably satisfied of each of the substantiated disciplinary findings. That question informs whether the decision was fair and reasonable. It is not a hearing de novo.

• [49] The relevant principles in considering whether a decision is 'unreasonable' were enunciated by Ryan J in Gilmour v Waddell & Ors[13] (emphasis added, citations removed):

The focus of a review of the reasonableness, or unreasonableness, of a decision is on whether the decision is so unreasonable that it lacks intelligent justification in all of the relevant circumstances.

The legal standard of unreasonableness is to be considered by reference to the subject matter, scope and purpose of the statute conferring the power.

A court considering an argument that a decision is unreasonable is not undertaking a merits review. If a decision may be reasonably justified, then it is not an unreasonable decision, even if a reviewing court might disagree with it.

... when something is to be done within the discretion of an authority, it is to be done according to the rules of reason and justice. That is what is meant by 'according to law'. It is to be legal and regular, not vague and fanciful ...

... there is an area within which a decision maker has a genuinely free discretion. That area resides within the bounds of legal reasonableness. The courts are conscious of not exceeding their supervisory role by undertaking a review of the merits of an exercise of discretionary power. Properly applied, a standard of legal reasonableness does not involve substituting a court's view as to how a discretion should be applied for that of a decision maker ...

... it is necessary to look to the scope and purpose of the statute conferring the discretionary power and its real object ... The legal standard of reasonableness must be the standard indicated by the true construction of the statute. It is necessary to construe the statute because the question to which the standard of reasonableness is addressed is whether the statutory power has been abused.

... Unreasonableness is a conclusion which may be applied to a decision which lacks an evidence and intelligible justification. [14]

Did the conduct subject of the two allegations occur?

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services

Unit, Gold Coast Hospital and Health Service you obtained a uniformed polo shirt designed for an

Environmental Services Porterage employee and provided it to Tania Walker, a person who was

• [50] With respect to Allegation one, Mrs Perry admitted that she obtained a uniformed polo shirt and provided it to Ms Walker on 12 July 2021.[15] Mrs Perry admitted that she knew that Ms Walker was not authorised to have the uniformed polo shirt.[16] Mrs Perry admitted to the investigator that she was aware of the process for signing out a uniformed polo shirt but she did not follow that process.[17]

• [51] In light of those admissions, it was fair and reasonable for Mr Brown to find the allegation to be substantiated.

• [52] Much clutter and confusion has unfortunately been introduced in the responses to Allegation One - specifically around the element of 'intent'. That energy is misplaced. The allegations were both reframed by Mr Brown in his first show cause notice dated 7 March 2021, in which he stated "You are now required to show cause as to why a disciplinary finding should not be made against you in relation to the following allegations as reframed by me,[18] on the grounds set out below."[19] Mr Brown's letter went on to include the two reframed allegations,[20] as clearly signposted in that earlier sentence.

• [53] The Appellant's submissions complain that the show cause process:

... was not procedurally sound by virtue of the change of allegations that occurred between the first and second show cause notice letters sent to the Appellant. Specifically, the first show cause letter sets out an element of 'intent' that was not present in the second show cause letter. The Appellant submits that change in allegations is significant on the basis that 'intent' is higher threshold element that the Respondent bore the onus to prove on the balance of probabilities. Thus, the removal of that allegation in the subsequent second show cause letter was procedurally unfair on the basis that it lowered the requisite threshold standard of proof that otherwise existed at the outset of the disciplinary process. In simpler terms, the Respondent has effectively 'narrowed the goal posts' to make substantiating the allegations easier for its own ends.[21]

• [54] But that is not what occurred in this case. Mr Brown put reframed allegations to Mrs Perry for her response in the first show cause notice dated 7 March 2022. The Respondent's submissions accurately noted that Mrs Perry's intention in providing the shirt to Ms Walker did not form part of the reframed Allegation One.[22]

• [55] While Mrs Perry's and the AWU's responses dated 4 April 2022 each address the matter of her 'intent' in providing the uniformed polo shirt to Ms Walker, it was not part of the allegation contained in the show cause process. The issue of intent appeared in the earlier allegation, that was subject of the investigation process.

That on or about the 12 July 2021 while employed as a Team Leader for the Environmental Services

Unit, Gold Coast Hospital and Health Service you failed to comply with a Public Health Directive,

restricting personal visitations in Queensland Hospitals, by visiting a patient in Ward C at the Gold Coast University Hospital.

• [56] With respect to Allegation two, Mrs Perry has admitted to visiting a patient on 12 July 2021. That is clear.

• [57] There was a Public Health Directive in place on 12 July 2021. Although Mr Lacy referred to the wrong directive in his investigation report, I note that Allegation two does not specify which Public Health Directive - but rather it simply alleged that Mrs Perry's conduct failed to comply with "a Public Health Directive, restricting personal visitations in Queensland Hospitals."

• [58] It is not in dispute between the parties that it was the Queensland Health's Hospital Entry Direction that applied on 12 July 2021. In correspondence dated 26 April 2023, Mr Brown accepted the Appellant's submission that:

... Mr Lacy relied on the wrong public health direction during the Investigation Report. I accept this is correct, and the applicable public health direction on 12 July 2021 was the Hospital Entry Direction.[23]

• [59] However, Mr Brown's correspondence went on to state that had no material impact on his findings because the requirements of the public health directions were substantially the same in that respect:

... this has no material impact on my finding because the requirements of the public health direction relied on by Mr Lacy are substantially the same as those contained in the Hospital Entry Direction. I do not accept that it is reasonable for you to have formed a view that you were not a 'visitor' for the purposes of the Hospital Entry Direction because you were a staff member working at the hospital. The requirements of the Hospital Entry Direction are clear and unambiguous. I do not find that your view is supported by the wording of the Hospital Entry Direction, which describes the circumstances in which a patient of a hospital in a restricted area (which included the Gold Coast City area per the Queensland COVID-19 Restricted Areas (No. 15) in place at the time) may have visitors. This is also reflected in the 'Staff alert Coronavirus update' issued on 2 July 2021.

• [60] The Public Health Directive in place at the relevant time restricted personal visitations in Queensland Hospitals. In her interview with Mr Lacy on 5 October 2021, Mrs Perry stated that no exemption was sought, or request made prior to visiting the patient with Ms Walker on 12 July 2021.[24]

• [61] The final test with respect to the whether or not allegation two ought be substantiated is the nature of Mrs Perry's visit to the patient. Mrs Perry submitted that "her choices were based on compassionate grounds", that both she and Ms Walker were "visiting this patient in a personal capacity" and that she was aware that the patient's "immediate family was shut out at this time from visiting due to Co-Vid". Further, Mrs Perry told Mr Lacy that she believed that as a staff member she was not a personal visitor, that she was unsure why she accompanied Ms Walker to visit the patient and that she was not aware whether Ms Walker was entitled to do so.

• [62] Mrs Perry admitted that she showed Mrs Walker to where the patient was located within the hospital.[25] Further, the response provided by the AWU dated 4 April 2022[26] includes the following summary points:

1. 5.3 - Ms Perry highlights that her choices were based on compassionate grounds and were not a wilful act to disregard the GCUH's lockdown protocols.

xii 7 - Ms Perry notes that the investigator has erroneously relied on CHO Directive No. 4 as the in-force directive at the time of the incident. Ms Perry correctly highlights that CHO directive 1 was in force at the time and was much more limited in terms of application. Further, CHO directive (No. 1) does not have any provisions relating to staff being included as part of those prohibited from visiting patients in the wards. The misconception was that prohibition applied to 'outside visitors' and not staff.

xiii 8 - Ms Perry highlights that both Ms Perry and Ms Walker were workers and visiting this patient in a personal capacity.

• [63] The COVID-19 Alert sent to all staff on 2 July 2021 stated:

Statewide restrictions on hospitals, aged care, disability care and correctional facilities will continue to apply with no personal visitors allowed for the next two weeks. This means that visitors are not permitted in our facilities, with the exception of end of life care, care of a minor, support person in the birth suite or a disability carer.[27]

... I consider that the fact (the patient's) 'immediate family was shut out at this time from visiting due to Co-Vid' (page 5 of the response to allegations dated 5 October 2021) should have been an indication that visitation from hospital staff members would also be restricted.[28]

• [65] Mr Brown stated that "I have taken into account your suggestion that there is no boundary between your visit to (the patient) on 12 July 2021 and the other visits made to (the patient) in the course of your duties. However, I have considered both your account of your visit with (the patient) and (the patient's) statement, which support the suggestion that you visited (the patient) to provide emotional support in your capacity as her friend, and not in the course of your usual duties. Similarly, it was not within your role to accompany Ms Walker to visit (the patient), especially in circumstances where Ms Walker is employed in an administrative role and does not attend the wards or visit patients in the usual course of her work."[29]

• [66] I concur with Mr Brown's assessment of the evidence with respect to Allegation two. That is, that Mrs Perry did visit the patient, that a Public Health Directive restricting personal visitations in Queensland Hospitals was in place on 12 July 2021, and that the nature of Mrs Perry's visit to the patient was personal not work-related.

• [67] On that basis, it was fair and reasonable for Mr Brown to find Allegation two to be substantiated.

• [68] In this appeal, Mrs Perry challenges the disciplinary finding made by GCHHS. A disciplinary finding means a finding that a disciplinary ground exists.[30]

• [69] The disciplinary grounds are set out in s 91(1)(a)-(h) of the PS Act.

• [70] Only where a discipline ground exists, can there be any subsequent consideration of whether or not disciplinary action should be taken.

• [71] Section 91(1)(h) of the PS Act only permits a chief executive to take disciplinary action against an employee where they are "reasonably satisfied" the employee has "contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action."

• [72] The decision maker in this case can be reasonably satisfied of Mrs Perry's contraventions because she has admitted the conduct for the most part. My reasons for confirming the findings that the two allegations are substantiated have been outlined above.

• [73] I have considered the Appellant's explanation of Mrs Perry's and Ms Walker's visit to the patient. In my view, that does not meet the threshold test for a "reasonable excuse". I concur with the decision maker's assessment that "...the Health Service reasonably expected employees to comply with public health directions applicable to their employment. Compliance with the Hospital Entry Directive was essential to the protection of vulnerable people from the COVID-19 virus and, having regard to all the available evidence, I believe that you chose to disregard your obligations under the Hospital Entry Directive, which put some of the Health Service's most vulnerable patients at risk ..."[31]

• [74] For those reasons, I find that the disciplinary finding was fair and reasonable.

• [75] The Discipline Directive[32] sets out the requirements to commence a discipline 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.

• [76] The Discipline Directive[33] sets out the requirements for making a disciplinary finding decision:

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.

• [77] With respect to the above mandatory requirements, I make the following observations:

• [78] Mrs Perry was provided with the written details of the two allegations, the particulars of facts considered and the applicable disciplinary ground that applied to each allegation, in the show cause correspondence dated 7 March 2022.

• [79] Only one possible disciplinary ground was included for each allegation, in the show cause correspondence dated 7 March 2022.

• [80] A copy of all evidence relevant to the facts considered for each allegation was provided, including specific reference to page numbers where relevant.

• [81] A comprehensive list of relevant documentation and materials to be considered by the decision maker was set out in the show cause correspondence dated 7 March 2022. In addition to that, access to the CCTV footage was offered to Mrs Perry ahead of making her response. While the Appellant has asserted that the disciplinary finding decision was not fair and reasonable "pursuant to the Respondent relying on material not provided to the Appellant", the Respondent has submitted (and I agree) that "Ms Perry was provided with all material relied on by Mr Brown in deciding to issue her with the First Show Cause and decisions to substantiate the allegations against her outlined in the Second Show Cause and it is unsure what other material Ms Perry may be referring to."[34]

• [82] One of the Appellant's grounds of appeal was that the disciplinary finding decision was unfair and unreasonable because "the Respondent has not appropriately considered or otherwise completely disregarded critical evidence in contravention of the principles in Briginshaw v Briginshaw [1938] HCA 34; [1938] 60 CLR 336". The AWU's correspondence dated 4 April 2022 stated that "Ms Perry highlights that an additional witness was present when Ms Walker and Ms Perry visited the patient. Ms Perry claims that the failure of the investigator to interview this person was an error in the investigative process and the failure to do so renders the allegation (with regard to the polo being worn) unsubstantiated." As I have earlier explained, however, the allegation contained in the first show cause notice had been reframed - it did not now include the words "... you did so knowing that Tania Walker intended using this apparel to gain unauthorised access to a patient in Ward C at the Gold Coast university Hospital ..." etcetera (that were part of the initial allegation that was earlier investigated by Mr Lacy). In the first show cause letter, Allegation one was reframed, and limited, to Mrs Perry obtaining and providing a uniformed polo shirt to Ms Walker "a person who was not authorised to possess this apparel". Allegation one says nothing about whether or not Ms Walker wore the polo shirt. Therefore I agree with the Respondent's submission that it was not necessary for the nurse to be interviewed and it was not a fatal flaw for Mr Lacy not to do so. If interviewed, the nurse may have recounted what they observed about the nature of the visit made to the patient by Mrs Perry and Ms Walker - however, the Appellant herself has owned that the visit occurred in a "personal capacity".[35]

• [83] Mrs Perry was required to provide her response to the first show cause notice "within fourteen (14) calendar days of receipt of this letter"; though the Discipline Directive prescribes that the employee must be provided with "a minimum of 14 days from the date of receipt" in which to respond. That is not the same. However, I note that Mrs Perry and her union provided their response to the first show cause letter on 4 April 202, and that followed some extension being sought and granted.

• [84] The show cause correspondence dated 26 April 2023 demonstrated that the Appellant's submissions and relevant material were considered by the decision maker. An example of this was Mr Brown's appropriate concession that Mr Lacy had referred to the wrong Public Health Directive in his investigation report.

• [85] Mr Brown advised Mrs Perry of his finding ('substantiated') in relation to each allegation included in the first show cause notice. While the Appellant had complained that the allegations changed between the first and second show cause notices, I have explained earlier in this Decision why that was not the case. In fact, what occurred was that the allegations investigated were broader than the two allegations reframed by Mr Brown and put to Mrs Perry for her response. There is no issue with that.

• [86] Mr Brown clearly explained his findings of fact to the required standard of proof, including the evidence relied upon to reach that conclusion.

• [87] With respect to the two allegations, Mr Brown included the disciplinary ground established as a result of his finding.

• [88] The required elements were provided to Mrs Perry in writing, including information as to her appeal rights and the relevant timeframe for doing so. She has exercised her right to file this appeal.

• [89] Mr Brown determined to propose the disciplinary action of 'termination of employment'. However, that is not a 'decision' but is only 'proposed' for Mrs Perry's response, at this point. For the reasons explained earlier in this decision, the proposed disciplinary penalty is not able to be appealed at this time.

• [90] The show cause correspondence dated 26 April 2022 issued to Mrs Perry provided her "seven (7) calendar days of receipt of this letter to show cause why the above proposed disciplinary action should not be taken." That is permitted under the provisions of cl 9.5(f) of the Discipline Directive.

• [91] The show cause correspondence dated 26 April 2022 issued to Mrs Perry set out the relevant factors to be considered by the decision maker "in the final determination of the disciplinary action", together with her response. That list is consistent with the factors included at cl 9.5 of the Discipline Directive.

• [92] In similar vein, I observe that some of the grounds of appeal submitted by the Appellant - in particular, "mitigating circumstances", "disproportionate nature of the disciplinary action proposed" and Mrs Perry's "previously unblemished employment record" - are more pertinent to any future show cause response as to the proposed disciplinary penalty, than submissions as to whether the disciplinary finding was fair and reasonable (that is the subject of this appeal).

• [93] With reference to the mandatory decision criteria contained in the Discipline Directive and relevant provisions of the PS Act, I have explained why I have found the decision subject of this appeal was fair and reasonable.

Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016, the decision appealed against is confirmed.

[1] Appeal Notice filed 10 May 2023, Attachment 1, [7].

[2] Directions Order issued 11 May 2023.

[3] Appeal Notice filed 10 May 2023, Attachment 1, [7].

[4] Industrial Relations Act 2016 (Qld) s 562B(3).

[5] Goodall v State of Queensland (Supreme Court of Queensland, Dalton J, 10 October 2018), 5 as to the former, equivalent provisions in s 201 of the Public Service Act 2008 (Qld).

[6] Public Sector Act 2022 (Qld) s 3.

[7] [1938] HCA 34; (1938) 60 CLR 336.

[8] Directive 05/23: Discipline, 'Definitions'.

[9] See, eg, Neat Holdings Pty Ltd v Carajan Holdings Pty Ltd [1992] HCA 66; (1992) 67 ALJR 170, 170-171.

[10] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 363.

[11] [1984] HCA 7; (1984) 153 CLR 521.

[12] Chamberlain v The Queen (No 2) [1984] HCA 7; (1984) 153 CLR 521, 536.

[13] [2019] QSC 170.

[14] Gilmour v Waddell & Ors [2019] QSC 170, [207]-[210], citing Minister for Immigration and Citizenship v Li [2012] HCA 61; (2013) 249 CLR 332, [63]-[76].

[15] Show cause response from AWU dated 4 April 2022; Show cause response from Mrs Perry dated 4 April 2022.

[16] Mrs Perry's Response to allegations being investigated dated 5 October 2021; Appeal Notice filed 10 May 2023, AP-05, 4.

[17] Final Investigation Report dated 27 November 2021, 13.

[19] Appeal Notice filed 10 May 2023, AP-01, 1.

[21] Appellant's reply submissions filed 27 June 2023, [7].

[22] Respondent's submissions filed 14 June 2023, [13]; Appeal Notice filed 10 May 2023, AP-01, 2-3.

[23] Appeal Notice filed 10 May 2023, AP-05, 5-6.

[25] Appeal Notice filed 10 May 2023, AP-04, 1.

[28] Appeal Notice filed 10 May 2023, AP-05, 6.

[30] Public Sector Act 2022 (Qld) s 90.

[31] Appeal Notice filed 10 May 2023, AP-05, 6.

[32] Directive 05/23: Discipline cl 9.

[34] Respondent's submissions filed 14 June 2023, [26].

[35] Appeal Notice filed 10 May 2023, AP-04, 3.