Walker v State of Queensland

Queensland Industrial Relations Commission|2025-07-16

INDUSTRIAL LAW - DISMISSAL - APPLICATION FOR REINSTATEMENT - applicant employed by Queensland Health - where a Public Health Directive restricted access to the hospital and particular wards - where the applicant contravened the Directive - where the applicant was terminated following a disciplinary process - whether dismissal was unfair - application for reinstatement dismissed.

Code of Conduct for the Queensland Public Service

Hospital Entry Direction, cl 16, cl 17, pt 8.

Alfred v State of Queensland (Department of Justice and Attorney General) [2016] QIRC 028

Augustine v State of Queensland [2022] QIRC 184

Byrne v Australian Airlines Limited (1995) 185 CLR 410

Darvell v Australian Postal Corporation [2010] FWAFB 4082

Fagan v Department of Human Services [2012] FWC 3043

Linfox Armaguard Pty Ltd (t/a Linfox Armaguard) v Symes [2019] FWCFB 556

Nesbit v Metro North Hospital and Health Service [2021] ICQ 005

Perry v State of Queensland (Queensland Health) [2023] QIRC 348

Queensland Rail v Michael Rainbow [2022] FWC 589

Sexton v Pacific National (ACT) Pty Ltd [2003] AIRC 506

Stark v P&O Resorts (Heron Island) (1993) 144 QGIG 914

Mr C. Watters, instructed by Work Rights Australia.

[1] Ms Tania Walker ('the Applicant') was employed by the State of Queensland (Queensland Health) ('the Respondent') as the Casual Pool Coordinator at the Gold Coast University Hospital ('GCUH').

[2] On 5 May 2022, the Applicant was dismissed by the Respondent following a disciplinary process in which it was determined that she had contravened a Public Health Direction made under the Public Health Act 2005 (Qld) and in breach of the Code of Conduct for the Queensland Public Service ('the Code of Conduct').

[3] The Applicant filed an Application for Reinstatement contending that the dismissal was unfair pursuant to s 317 of the Industrial Relations Act 2016 (Qld) ('the IR Act').

[4] It is convenient to outline the chronology of events as contained in the Respondent's submissions.

1.1 On 5 May 2022 the Respondent terminated the Applicant's employment following an investigation and disciplinary process by which two allegations were substantiated:

That on or about the 12 July 2021 while employed as a Casual Pool Coordinator for the Gold Coast Hospital and Health Service [the Applicant] inappropriately obtained a uniformed polo shirt designed for an Environmental Services Porterage employee.

That on or about the 12 July 2021 while employed by the Gold Coast Hospital and Health Service [the Applicant] 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 [the Applicant] at the time.

1.2 The allegations concerned an incident occurring on 12 July 2021 when the Applicant, then employed at the Gold Coast University Hospital (GCUH) within the Gold Coast Hospital and Health Service (GCHHS), visited a friend hospitalised at the GCUH in contravention of a Public Health Direction made under the Public Health Act 2005 and in breach of the Code of Conduct for the Queensland Public Service ('the Incident').

2.1 On 29 January 2020, the Minister for Health and Ambulance Services declared a public health emergency in relation to coronavirus disease (COVID-19).

2.2 From March 2020, the Chief Health Officer issued various COVID-19 public health directions under the Public Health Act 2005, including the Hospital Entry Direction effective 7 July 2021 (the Direction) which replaced the similar Hospital Visitors Direction (No. 21), which was in turn preceded by numerous similar directions.

2.3 Clause 16 of the Direction provided that "...a patient of a hospital in a restricted area may not have visitors". Clause 17 contemplated a process by which approval could be sought to visit patients in certain categories only (such as a child).

2.4 On 12 July 2021, the Applicant obtained from another employee, Ms Andrea Perry, a uniformed polo shirt designed for an Environmental Services Porterage employee and went together with Ms Perry to the GCUH's cancer ward to visit a patient known to them both, Ms Janice Armstrong.

2.5 The Applicant subsequently admitted the conduct in a discussion with several co-workers including Ms Vanessa Wilkes (Casual Pool Coordinator).

2.6 On 15 July 2021, Ms Stacey Pitman (Senior Director, Operational Support Services) became aware of the Incident and undertook preliminary investigations before causing the matter to be referred to the Crime and Corruption Commission (CCC). Ultimately, the CCC returned the matter to be dealt with by the GCHHS, having assessed it as suspected corrupt conduct if substantiated.

2.7 On 23 August 2021, the Applicant was suspended on full pay and on 25 August 2021 an external investigator was appointed.

2.8 On 27 November 2021, the investigator delivered its report, which:

a) Substantiated that the Applicant had inappropriately obtained a uniformed polo shirt designed for an Environmental Services Porterage employee;

b) Found that there was insufficient evidence to substantiate the allegation that the Applicant wore the uniformed polo shirt on 12 July 2021; and

c) Substantiated that the Applicant had failed to comply with the Direction.

2.9 On 2 February 2022, the Applicant was issued a first show cause notice by Mr Grant Brown (Executive Direction, People and Operations), inviting her to show cause why disciplinary findings ought not be made against her under the Public Service Act 2008 (PS Act) in respect of the allegations at paragraph [1.1] above.

2.10 On 30 March 2022, Mr Brown issued to the Applicant a second show cause notice stating to the effect that the allegations were determined to be substantiated on the balance of probabilities. The Applicant was invited to show cause why the proposed disciplinary action of termination should not be taken.

2.11 On 11 April 2022 and 20 April 2022, the Applicant responded to the second show cause notice.

2.12 On 5 May 2022, the Respondent, determined to terminate the Applicant's employment and did so by letter issued 6 May 2022 under the hand of Mr Ron Calvert (Chief Executive of the GCHHS).

2.13 The Applicant's dismissal was authorised by the PS Act. Mr Brown determined the allegations were substantiated and that there were grounds to discipline the Applicant pursuant to s 187(1)(g). Mr Calvert determined to take the disciplinary action that he considered reasonable, termination of employment, pursuant to s 188.

[5] As of 12 July 2021, the Gold Coast was a 'restricted area' and the GCUH was a 'restricted hospital' for the purposes of the Direction.

[6] Section 316 of the IR Act provides that a dismissal is unfair if it is harsh, unjust, or unreasonable.

[7] A dismissal may be unjust in circumstances where the employee was not guilty of the misconduct upon which the employer acted. Similarly, a dismissal may be unreasonable because it was decided upon inferences which could not reasonably have been drawn from the material before the employer. Alternatively, a dismissal may be harsh in its consequences for the personal and economic situation of the employee or because it is acted.[1]

[8] Section 320 of the IR Act provides that in deciding whether a dismissal was harsh, unjust, or unreasonable, the Commission must consider the following:

Matters to be considered in deciding an application

(1) 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.

[9] The following witnesses gave evidence for the Applicant -

The Applicant;
Ms Sandra Andrea Perry;
Ms Janice Armstrong;
Ms Jennifer Marie Deakes;
Ms Daniella Kohutova;
Mr Barry Walker; and
Ms Deborough MacBeth.

[10] The following witnesses gave evidence for the Respondent -

Ms Stacey Simone Pitman;
Mr Grant Paul Brown;
Mr Bradley Whitfield;
Mr Ronald Calvert; and
Ms Vanessa Ann Wilkes.

[11] The Applicant's closing submissions are summarised as follows -

The Applicant gave 17 years of dedicated and committed service to her employer and had no previous disciplinary, conduct or performance issues.
The Applicant was a Union Delegate at the GCUH.
At no time did the Applicant inappropriately obtain a hospital uniform polo shirt.
For the short interval after 7.00 pm during which the Applicant was in possession of the uniform shirt, the Applicant had a reasonable excuse.
The Applicant had not had the benefit of Performance Appraisal and Development ('PAD') for over 5 years.
The correct and only Public Health Directive relevant to these proceedings was the Chief Health Officer Directive issued on 7 July 2021 ('the Directive').
The failure of the Respondent to adequately train, supervise and/or bring to the attention of the Applicant (and others) the requirements of the Directive contributed to the Applicant's conduct such that the penalty imposed by the Respondent was harsh, unjust, and unreasonable.
The Applicant's visit to her close friend of 17 years who had been diagnosed with Stage 4 Cancer consisted of no more than 5 minutes fully supervised by Environmental Services Team & Covid Team Leader - Ms Perry, who supervised infection control.
The Directive did not prevent, prohibit, bar, or otherwise stop the Applicant from visiting Ms Armstrong in the GCUH Cancer Ward on 12 July 2021 as such a visit was exempt from prohibition pursuant to clause 17(d) of the Directive.
The Applicant submits that as part of her duties, at all relevant times she had a GCUH swipe-card which authorised her access to the Cancer Ward.
The Applicant submits that 'the punishment does not fit the crime' in that the sanction imposed is disproportionate to the breach which occurred.

[12] The Applicant's submissions relating to differential treatment, reasonable excuse, disciplinary history, and legal exculpations are considered below.

[13] The Respondent refers to Stark v P&O Resorts (Heron Island)[2] ('Stark') in which Chief Commissioner Hall (as he then was) considered the task before the Commission in assessing whether a dismissal was harsh, unreasonable, or unfair. The Respondent cites the following:

Where ... an application ... is advanced on the basis that a dismissal was harsh, unreasonable or unfair, the task of the Commission is to assess whether it should intervene to protect the applicant against a decision which is fundamentally one for the employer to make. Ordinarily intervention will be justified only where the employer has abused the right to dismiss. Ordinarily where an employer conducts a full and extensive investigation and gives the employee a reasonable opportunity to respond to allegations being made against him, an honest decision of the employer that misconduct warranting dismissal has occurred will, if formed on reasonable grounds, will be held immunity from interference by the Commission ....[3]

[14] The Respondent submits that the Applicant has failed to take responsibility and has instead advanced multiple excuses that have either developed, contradicted each other, or been abandoned over time.

[15] The Respondent submits that none of the Applicant's evidence can be safely accepted due to the "shambolic raft of excuses",[4] her evidence regarding the parking evidence, and her behaviour at trial generally. The Respondent contends that the Applicant's willingness to make self-serving and inconsistent statements with no regard to the truth must detract from the Commission's assessment of her credibility and reliability.

[16] The Respondent submits that the Applicant frequently avoided answering the cross‑examiner's questions, embellished and refused to make sensible admissions, and appeared as a witness "suffering under the pressure of trying to keep her story straight".[5]

[17] The Respondent submits the following regarding the Applicant's explanations for the conduct -

The coincidental presence of a nurse during the Applicant's visit provided no excuse for the Applicant's conduct.
The fact that the Applicant's swipe card gave her access to the ward did not authorise her do so in contravention of the Direction. The Applicant accepted in cross-examination that there could not be different rules for staff when it came to visitation of patients[6] and admitted that no-one in authority told her that the restrictions did not apply to her.[7]
The Applicant's evidence that she was unaware of the visitor restrictions or misunderstood the Direction cannot be accepted on the basis of the extensive evidence of Ms Pitman and Mr Bown regarding the communications with staff.
The Applicant's contention that there was no sign on the door ought not be believed on the basis of the evidence of Mr Brown and Ms Pitman that "...on all entry to all patient wards, there were huge signs, warning signs, 'Stop. Do not enter. No visitors allowed'; "We had them inside the lifts, in corridors. They were quite prevalent throughout the hospital..."[8]
Mr Calvert summarised -

[I]t was impossible at the time to be unaware of what these rules were, in my view ... I mean, you couldn't come to work without going through all these... checkpoints and barriers, and there was a separation of visitors and a checking-in process, an escort process, and members of staff had separate access... you couldn't not be aware of all those things, not working in a hospital you couldn't.[9]

The Applicant's evidence that she was not thinking clearly on the day was not a reasonable excuse and no explanation was given as to why this excuse was not raised earlier than it was.
The absence of recent performance reviews is not a reasonable excuse when the Applicant understood her employer's expectations of her.
The excuse that Ms Perry supervised the use of PPE is not relevant as she did not work in a clinical role and is not medically qualified. Ms Perry had no special responsibility over workers or visitors, nor was she granted some licence to operate outside of the visitor restrictions. Ms Perry was involved in the development of procedures limited to cleaning and porterage matters, having nothing to do with patient visits. In any event, Ms Perry testified that she and the Applicant did not wear gloves or a gown; and Ms Armstrong recalled them wearing no PPE at all.
The Applicant's contention that Ms Perry authorised the visit cannot be sustained where Ms Perry admitted that she had no power to grant permission to a visitor to visit a patient at that time.

[18] The Respondent makes the following submission in summary contending that the dismissal was not harsh, unjust, or unreasonable -

The Applicant at one point argued that some unfairness arose from the wrong public health direction being referred to in the show cause process. In cross‑examination, the Applicant agreed that there was no unfairness.
The Applicant at one point argued that some unfairness arose because of perceived inaccuracies in Ms Pitman's initial report. The evidence showed the argument to be without merit.
The dismissal was proportionate. The Respondent considered whether a lesser sanction could be taken, and both Mr Brown and Mr Calvert recognised dismissal as the option of last resort. The Applicant's conduct was serious. It was a fundamental breach of the Gold Coast Hospital Health Service values; and the consequences could have been catastrophic.
The Applicant's submission that "harshness alone" is enough oversimplifies the position. A harsh result is not itself conclusive; it must be balanced against the gravity of the conduct.[10]
It is clearly open for the Commission to find that a dismissal is not unfair in circumstances where a long-term employee of good records commits serious breaches of the Code of Conduct.[11]
The Applicant struggled to understand or admit the seriousness of her actions.
This is a case where the employer conducted a full and extensive investigation, gave the Applicant a reasonable opportunity to respond, and made an honest and reasonable decision that misconduct warranting dismissal had occurred. The employer's decision ought to be held immune from interference by the Commission.

[19] The Applicant's closing submission in reply are summarised as follows -

The Respondent's reliance on Stark is wrong or misplaced. As previously stated, the Applicant concedes that (notwithstanding some minor irregularities) she was afforded an opportunity to respond via a valid 'show cause' process. The ratio decidendi in Stark is that the Commission would not intervene in circumstances where an honest decision by the employer to terminate is formed on reasonable grounds. In the current case, there is evidence of dishonesty, or at least misinformation provided to the decision-maker (CEO Calvert), such that his decision to terminate the Applicant's employment was so infected as to be unreasonable.
The evidence of Ms Wilkes is that things were said in jest, as a joke, or as part of office banter.[12] Ms Wilkes gave evidence of a conversation she had with the Applicant. What next occurred was that a manager overhead the 'office banter' and enquired of Ms Wilkes as to what was going on.[13] It was this 'hearsay' that prompted or acted as the basis for disciplinary action against the Applicant.
It is not in dispute that the GCUH made every effort to display signage, intranet, social media, and other advice concerning COVID-19 restrictions at the relevant time. There is, however, a complete lack of evidence proving that signage and messaging was seen and understood by the Applicant. In fact, the evidence of the Applicant is to the contrary.
In response to the evidence of Mr Calvert who claims it was impossible to move around the hospital without seeing COVID-19 signage, the Applicant says that she always thought the relevant hospital signage applied to visitors to the hospital - not to staff.
The Respondent's reference to the Applicant's "shambolic raft of excuses" is not only wrong but reflective of the harsh and unreasonable penalty invoked in this matter. Far from being chaotic, disorganised, or mismanaged, the Applicant has accepted in hindsight that her visit to Ms Armstrong was in breach of a Public Health Directive but is able to demonstrate a 'reasonable excuse' (as required by the Respondent's Code of Conduct) which should mitigate any sanction imposed. The Respondent appears to argue that because the Applicant raises more than one 'reasonable excuse', her defence is "shambolic" and that mitigation of penalty should not apply in her case. There is no case authority for such a proposition, nor does the Respondent cite one.
The Applicant's submissions were critical of Ms Pitman's credit and supportive of the Applicant's credit.
It is not disputed by the Applicant that the "media & comms team" made every effort to keep staff abreast of COVID-19 changes. What remains in dispute is that given her lengthy absences from the workplace in the months leading up to and immediately prior to 12 July 2021, the Applicant was not made aware that restrictions applied to staff while at work.
Extreme caution might be exercised in relying on the decision in Perry v State of Queensland (Queensland Health)[14] ('Perry') because Ms Perry's matter was a public sector appeal examining 'fair treatment' - not a case of 'unfair dismissal', and because the case is currently under appeal to the Industrial Court of Queensland. The decision in Perry is influential at best and is not binding on the Commission in this matter.
The Respondent erroneously submits that Mr Calvert's decision to terminate was based on a careful and orthodox process. Such a submission is wrong because Mr Calvert clearly identified under cross-examination that he was not made aware that the Applicant only "obtained" the polo uniform shirt after she had visited Ms Armstrong and left the Cancer Ward. Mr Calvert further admitted under cross-examination that he was misled into believing Ms Armstrong was a staff member at the time of being visited by the Applicant. Under cross‑examination, the decision maker then admitted he had not been briefed and was not aware of the other GCUH personnel visiting Ms Armstrong during COVID-19 restrictions, and which gave the CEO cause for concern. It is therefore respectfully submitted there was nothing careful or orthodox about Mr Brown's termination brief which misled the CEO.
In evidence and in submissions the Respondent avers that the timing of the "handing over" of the polo uniform shirt is immaterial. This is plainly wrong because if it were established that the Applicant took possession of the shirt prior to entering the Cancer Ward, the Respondent may have been able to establish that she "inappropriately obtained" the polo shirt. The facts are that the Respondent's own CCTV vision (not viewed nor inspected by the decision maker) establishes that the Applicant was handed the polo shirt by Ms Perry after the visit and outside the Cancer Ward, thereby disproving any suggestion of "inappropriately obtaining" the shirt.
Mr Calvert (albeit without the benefit of his reading glasses) made frank and fearless admissions as to how the termination brief had misled him or had not fully informed him in a number of key areas, including misinforming him about the parking breach incident, and then gave evidence that such matters would not have changed his mind on the decision to terminate.
While it is agreed that Ms Wilkes was a credible witness, she appeared to be giving evidence for the Applicant. Her evidence was that there were some jokes and office banter about the uniform polo shirt and that she never believed the Applicant wore it or had it to gain entry to the Cancer Ward. Moreover, her evidence was that a manager overhead the office banter and after questioning Ms Wilkes reported the matter to Ms Pitman.
The Respondent argues that the first it knew of other personnel visiting Ms Armstrong was after Ms Perry's written complaint in the matter in April 2022. This is wrong, the evidence clearly shows that the Respondent was in possession of Ms Armstrong's statutory declaration (sworn in late September 2021) as early as 7 October 2021.
The Respondent endeavours to suggest that the Commission should note that the Applicant has not called any of the other 17 personnel who visited the patient Armstrong to give evidence. Both the Respondent and the Commission know that witnesses were issued with Notices to Attend and Give Evidence. At least two (2) of those witnessed elected to disobey such notices and which the Applicant (generously) did not press.

[20] The Applicant bears the onus of establishing that the dismissal was harsh, unjust, or unreasonable.

[21] There is no dispute between the parties that the Applicant possessed the uniform shirt for not work-related reasons, nor that the Applicant visited a patient in a Cancer Ward while the Directive prohibited such visits without obtaining an exemption.

[22] The Applicant contends that she had a reasonable excuse for her conduct and has displayed remorse by apologising for her actions.

That on or about the 12 July 2021 while employed as a Casual Pool Coordinator for the Gold Coast Hospital and Health Service you inappropriately obtained a uniformed polo shirt designed for an Environmental Services Porterage employee.

[24] The Applicant gave evidence that on 12 July 2021, a colleague and close friend of the Applicant, Ms Andrea Perry, Environmental Services Team Leader, advised her that Ms Janice Armstrong had requested that she visit her in the GCUH Cancer Ward.[15]

[25] Ms Armstrong, who had been diagnosed with Stage 4 cancer, was a former GCUH employee and a close friend of the Applicant. Ms Armstrong gave evidence at the hearing of this matter.

[26] The Applicant gave evidence that Ms Perry brought a GCUH Environmental Services uniform polo shirt and said words to the effect of "this would look good with your smart jeans and high heels" to which they both laughed.[16]

[27] Ms Perry's evidence was that she brought the uniform shirt with her as a joke to cheer up the Applicant because she thought the Applicant would be distressed at seeing her friend in the Cancer Ward.[17]

[28] Ms Vanessa Wilkes gave evidence that the Applicant had confirmed that she had obtained the shirt and went to visit Ms Armstrong. Ms Wilkes' evidence was that the Applicant obtained the shirt to "'look like'" she was doing an audit in the room as the restrictions prevented entry, although I note that the allegation was only that the Applicant had inappropriately obtained the uniform shirt and not that she had worn the shirt.[18]

[29] The CCTV footage confirms that Ms Perry was in possession of the polo uniform shirt before providing it to the Applicant.

[30] The termination brief provided to Mr Ronald Calvert, Chief Executive, Gold Coast Hospital and Health Service ('GCHHS') ('the decision maker') outlined the following-

CCTV around the uniform storage area shows Ms Andrea Perry, Team Leader Environmental Services, leaving the locked area with a red polo uniform shirt, which she gave to Ms Walker. There was no written record of this action, which is not consistent with usual practice (uniforms are signed in and out and a Riskman is completed to document why the spare uniform is needed).

Preliminary information suggested Ms Walker visited her ill colleague who was located in C1 East which is a haematology oncology ward (a ward holding vulnerable immune‑suppressed patients). After a period of time, CCTV shows Ms Walker returning to the unit visibly upset, in her usual clothing and carrying the polo shirt over her shoulder.

[31] I do not accept the Applicant's submission that the termination brief was dishonest or misleading. The CCTV did show Ms Perry leaving the locked area with a polo uniform shirt, and she did give this shirt to the Applicant. The brief accurately described the CCTV footage, and the allegation was able to be substantiated on that basis.

[32] The Applicant also contends that the termination brief was misleading on the basis that it described Ms Armstrong as an employee rather than a former employee. The status of Ms Armstrong's employment was not relevant to the matter as personal visits to any patients were restricted. I note the evidence of the decision maker, Mr Ron Calvert, -

[I]t matters not ... whether the patient was a staff member or not.

Remember, at this time, people couldn't go to funerals to say goodbye to loved ones because of the restrictions of the public health directive.[20]

[33] Mr Calvert gave evidence that he was not aware that the Applicant only took possession of the shirt on the way out of the Cancer Ward. Mr Calvert gave evidence that he had formed the impression that the Applicant had carried the shirt into the ward, along with the following -

I think the original suspicion was that the shirt was a prop or was worn - one or the other - in order to give the appearance of undertaking, you know, a ward audit task of some sort, and therefore legitimise presence on the ward.[21]

Okay? ---But I think the uncertainty in the course of the investigation narrowed down that allegation to simply obtaining the shirt. These shirts, they're not just handed out. You have to sign for them, and so on.

Sure. Are you aware that the only time that the applicant, Ms Walker, had possession of the shirt was when she was handed the shirt by the other officer, Ms Perry, after the visit, outside the cancer ward standing near the lifts - near that level on - where C1 is? --- After the visit. No, I wasn't aware of that.

[34] Mr Calvert also gave the following evidence -

... All I was aware of was there was a suspicion that she was using the shirt as some sort of prop. It couldn't be proved. It was apparently concluded that she took possession of that shirt. That's against one of our rules. That's one of the - that's one of the issues we had to take into account.[22]

[35] Mr Calvert did not substantiate the allegation on the basis that the Applicant had used the shirt as a prop, having accepted that such an intention could not be proven. I accept that whether Mr Calvert thought the Applicant had obtained the uniform before or after the visit was immaterial to his disciplinary decision following the finding that she obtained the uniform inappropriately.

[36] The Applicant submits that at no time did she inappropriately obtain the uniform shirt, and for the short period during which she was in possession of the uniform shirt she had a "'reasonable excuse' ... as required by the Respondent's Code of Conduct."[23] The reasonable excuse put forward was that she only had possession of the uniform shirt after being handed it by Ms Perry and asked to return it to the office.[24]

[37] The evidence supports a finding that the Applicant took possession of the uniform shirt that she had no work-related reason to possess and then took the shirt back to the office following the request of a colleague.

[38] The Applicant contends that proof of what the Applicant was wearing is available via the evidence of the nurse rostered on duty in the Cancer Ward and who was present through the Applicant's visit. The Applicant submits that the Respondent's failure to call the relevant nurse as a witness entitles the Commission to draw an adverse inference.[25] In circumstances where it is not contended that the Applicant wore the uniform, only that she took possession of the uniform, the nurse's evidence is not relevant. Accordingly, no adverse inference will be drawn.

[39] The Respondent submits that in relation to Allegation One, it is beyond argument that the Applicant took possession of the uniform shirt, which she admits she was not authorised to wear and had no work-related reasons to possess, in circumstances where access to such shirts was controlled.

[40] The Respondent determined that based on the conduct substantiated in Allegation One, the Applicant had, pursuant to s 187(1)(g) of the Public Sector Act 2022 (Qld) ('the PS Act'), contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, specifically cl 1.1 of the Code of Conduct (commit to the highest ethical standards).

[41] The evidence of Ms Perry was that she obtained the uniform shirt as a joke to cheer up the Applicant before asking her to return it to the office. It is unclear why the Applicant left the uniform shirt on a table after returning to the office, nor why Ms Perry did not retrieve the uniform shirt. The evidence indicates that it was not usual for a uniform to be simply discarded on a table in the middle of the pod.[26] This was not a matter where the Applicant was returning property to its rightful place, rather she had taken possession of a uniform and provided no adequate explanation as to why it was then left on a table where it remained for some time.

[42] Accordingly, I am satisfied that it was it was reasonable for the Respondent to substantiate Allegation One and make a disciplinary finding that the Applicant had breached cl 1.1 of the Code of Conduct requiring employees to commit to the highest ethical standards.

That on or about the 12 July 2021 while employed by the 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.

[44] The Applicant does not deny that she visited Ms Armstrong in breach of the Directive but contends that she had misunderstood the Directive and was not aware that the Directive applied to staff. The Respondent did not accept this contention and determined that the Directive was known to the Applicant at the time.

[45] Mr Calvert gave evidence rejecting the idea that it was not possible to keep up with the restrictions -

[I]f you're suggesting that no one could keep up with them, that's nonsense ... I mean, it's just nonsense. We're a hospital for goodness' sake. You know, we were up to speed with all the directives all the time. You couldn't enter the hospital without going through a checkpoint. You had to ... we were all aware of the rules all the time... [27]

[46] Ms Stacey Pitman gave the following evidence of the situation at the time-

[E]very action and decision by the HHSs followed were about separating people, only having purposeful interactions. Our meeting rooms were turned off. We moved to online meetings. Capacity in rooms were significantly reduced. We removed 50 per cent of our retail chairs and furniture so that we could maintain the 1.5 metre distancing, and it wasn't just happening in the hospital. There were obviously changes occurring in society, you know, restaurants closing, events being cancelled, etcetera, so everybody was globally aware that we had to minimise contact, and the hospitals took that very seriously, because we obviously had vulnerable patients in there...[28]

Anybody working in the clinical areas that were exposed to vulnerable persons or clinically under suspicion for COVID were required to wear a heightened level of PPE. That included N95 masks, which required fit testing ... There were only three doors open for people coming in and people leaving, and that was heavily screened with our nursing staff.[29]

'[P]art of the communication to all staff was limit unnecessary movements around the hospital, and I did go on record today to say that as an administrative officer, there was no need for [the applicant] to be in a clinical setting.[30]

[47] Ms Pitman gave compelling evidence of the extensive communication to staff about the restrictions, including staff alerts emailed to all staff, intranet resources, posters, signage, and staff forums.[31]

[48] Ms Pitman referred to the COVID FAQs document on the intranet which outlined the following:

Would you consider allowing staff to visit their own family members who are patients, given we are abiding by the social distancing, hand washing and mask wearing guidelines?

We can't have a different set of rules for staff than we do for public visitors, so unfortunately no - staff need to abide by the same rules. We should also all be trying to reduce foot traffic in the hospital to minimise any potential spread. [32]

[49] Ms Pitman gave evidence that she thought her media and communications team did a very good job "...encapsulating the target information to avoid information fatigue and to draw attention where the true change and the effect would be relevant to the ordinary, everyday staff member".[33]

[50] Ms Pitman gave evidence that the Applicant's role as an administration officer was computer based and involved filling of rosters on the computer.[34] Ms Pitman stated that the Applicant would have seen screenshots advising of the restrictions on her computer independently of her emails and the idea that she simply missed all this communication is unbelievable.[35]

[51] Mr Grant Brown gave detailed evidence of the processes adopted by the GCHHS in adhering to the requirements of the Directive. He gave evidence that the GCHHS shut all but two of their entrances and exits.[36] Staff members placed at the entrance and exits were required to stop every single person coming through, to make sure they had washed their hands and were wearing masks.[37] Staff also had to answer an array of questions such as whether they had been in a hot zone and whether they had felt any COVID symptoms.[38]

[52] Mr Brown also gave evidence of the Respondent's actions to advise employees at the time of the restrictions associated with the Directive. These actions included communications to all staff through staff alerts, screensavers, extensive Facebook posts, staff forums in person and via Teams, daily bulletins, and signage.[39]

[53] The Applicant submits that she was on leave for a period leading up to the relevant conduct and so was not aware of the restrictions. In circumstances where the evidence demonstrates extensive use of different modes of communication, including emails directly to each employee advising of the Directive, it is implausible that the Applicant was unaware of the restrictions associated with the Directive upon her physical return to the hospital setting.

[54] The Applicant responded to the Show Cause Notice that her GCUH swipe card gave her access to all areas of the hospital that she was authorised to access, however, she obtained entry to the Cancer Ward after Ms Perry used her swipe card rather than her own. The Respondent reasonably determined that having access to wards did not automatically give the Applicant the right or authority to use this access to visit patients for no reason pertaining to her role as an Administrative Officer and in breach of the Directive.

[55] In considering the Applicant's response to the Show Cause Notice, Mr Brown stated the following -

... I am significantly concerned that even when faced with evidence of you entering a ward during a period of time when there was a valid Public Health Directive, while you may not have physically used your swipe card, with no business reason to be gaining entry into this ward, you have lacked insight and attempted to diminish your actions. It appears from your response you have not fully appreciated why the Health Service holds concerns that you inappropriately failed to comply with a valid Public Health Directive by visiting a patient on a clinical ward ... It is paramount to the effective operation of the department as a whole, and to the relationship of trust and confidence between the department and its employees, that its employees are compliant with all policies, procedures, directions and other instruments impacting their employment. Whether you used your swipe card or it was Ms Perry's swipe card used is a moot point as the allegation is whether it is more probable than not that you failed to comply with the Public Health Directive, restricting personal visitations in Queensland hospitals, by visiting a patient in Ward C at the GCUH.[40]

[56] It was reasonable for Mr Brown to determine that it was the Applicant's conduct in accessing the ward that was in issue and not whether this access was obtained via her or Ms Perry's swipe card.

[57] Finally, I note the evidence of Ms Wilkes regarding her conversations with the Applicant following the incident. Ms Wilkes gave evidence that the uniform shirt was on a table in the office and acknowledged that it was unusual for the uniform to be on the table as "'there's never been one before ... on that table'".[41] Ms Wilkes' testimony continued -

So, you - did you have a conversation with [the Applicant] the next day about the shirt? --- I think the next day, that's when [the Applicant] came in and told us about the shirt, because there was a bit of commotion about it.

Okay. Can you please explain for the Commission those events and what happened and who said what? --- She just said that she got the shirt and sent [sic] went upstairs to visit [Ms Armstrong] and that she took a couple of lollies that she'd pay back and that was about it, really.

Did she say why she got the shirt to see [Ms Armstrong]? --- To look like we're doing an audit in the room. ...

And did [the Applicant] tell you anything about why the shirt was there on the table? --- That was all that was discussed, that she went upstairs and said she'd do an audit in [Ms Armstrong's] room and that she took her up a few chocolates and - because we have a lolly tin. And that was about it, really.

And what was the significance of taking a shirt up to Ms - to see Ms - to see [Ms Armstrong] at this time? --- At the time, we weren't allowed to visit anybody. There was no visiting in the hospital.

And so why did you understand that she had the shirt - she took the shirt with her? --- To get access to the ward or something; I'm not sure.[42]

[58] I found Ms Wilkes to be an honest witness who provided straightforward evidence to the best of her recollection. Ms Wilkes' testimony that the Applicant had stated that she was trying to look as though she was doing an audit in the room weighs heavily in favour of a finding that the Applicant had been aware that she was not permitted to visit the Cancer Ward.

[59] I found the evidence of the Applicant to be less reliable for a number of reasons. The Applicant refused to make reasonable concessions[43] and her responses were sometimes inconsistent or implausible.[44] I formed the general impression that the Applicant was attempting to maintain a position rather than genuinely answering the questions at hearing.

[60] I am satisfied that on the balance of probabilities it is unlikely that the Applicant did not know that the Directive applied to staff including herself. It is implausible that an employee could be exposed to such a significant amount of information through different channels and somehow be unaware that such information applied to them. Based on evidence of the significant volume of communication advising of the Directive throughout the GCHHS, it was reasonable for Mr Brown to determine that the Applicant had known of the restrictions and accordingly substantiate Allegation Two.

[61] In considering the disciplinary penalty to impose following substantiation of the allegations, Mr Brown outlined the following -

It is also appropriate for me to consider the significance of the clinical ward you entered contrary to the Public Health Directive. In this respect, I note Ms Armstrong was receiving care in a ward located on Level 1 of C Block in the East wing which is a Haematology Oncology ward which looks after patients suffering from cancer. At the time of this incident, not only were all patients at risk of infection of COVID-19 which was the primary reason the Public Health Directive was enforced, this particular ward holds some of the Health Service's most immunocompromised and vulnerable patients. Due to the Public Health Directive and the specific vulnerability of this ward, a calculated process was initiated and followed for any individuals wanting to visit patients on this ward while this Public Health Directive was active. Part of this process required the patient to apply for an exemption, the Central intake COVID team to assess the request and generate an access letter, notification to be sent to the screening desk, the exemption and access letter was then required to be sighted at the front entry and the ward would be notified of the arrival. Following this, wardspersons would escort the visitor to the ward reception area where clinical staff would mask, gown and glove the visitor prior to escorting them in to the patient's room where the door was then shut to limit any other access. When assessing the evidence available, I am satisfied you were a visitor and not undertaking any official duties in your administrative role when visiting Ms Armstrong, and I am satisfied you had no exemption or access letter, nor any approval or justification as to why you entered this ward contravening the Public Health Directive that was made readily available to all members of the public and all employees of our Health Service. This information was made available at a minimum through dedicated COVID information and links within the Queensland Health intranet as well as the Gold Coast Health intranet pages, staff alerts and/or updates were sent to all employees via there Queensland Health email, and the Public Health Directive was published to all members of the public online easily accessible through google.[45]

[62] On the basis of the substantiated Allegation Two, Mr Brown determined that pursuant to s 187(1)(g) of the PS Act, the Applicant had contravened without reasonable excuse a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action, specifically cl 4.1 of the Code of Conduct to ensure diligence in public administration.

[63] Following the reasonable substantiation of Allegation Two, it was reasonable for Mr Brown to make such a disciplinary finding as the conduct clearly demonstrated a lack of diligence in the Applicant's role in the public sector that was sufficiently serious to warrant disciplinary action.

[64] The Applicant contends that she had a 'reasonable excuse' for her conduct. The Applicant put forward a multitude of reasons to excuse her conduct, including that the visit consisted of no more than five minutes and Ms Perry supervised infection control.

[65] The length of time involved in the visit, submitted by the Applicant to be approximately 5 minutes, does not provide a reasonable excuse. There was no evidence that the limited time involved was permitted by the Directive, and any patients in the Cancer Ward could have been infected during this time.

[66] The submission that Ms Perry supervised infection control cannot be accepted given the lack of evidence that the level of PPE worn was at the standard required by visitors in receipt of an exemption. In circumstances where difficult decisions had been made by the Respondent to establish an exemption process to accommodate patient visits in limited circumstances, including requirements regarding the wearing of PPE in the form of masks, gowns, gloves, etc, it was not reasonable for the Applicant to take it upon herself to simply enter the Cancer Ward in the presence of a colleague on the basis that the colleague had been involved in establishing COVID-19 protocols.

[67] I am not persuaded that the Applicant adopted the process of following the patient notification charts at entry to each room for PPE profile, nor that she had been fit tested for an N95 mask or donning or doffing. Ms Perry gave evidence indicating that neither she nor the Applicant wore gloves or a gown[46] and Ms Armstrong could not recall the Applicant wearing any PPE.[47] The failure to wear appropriate PPE is in my view an aggravating feature of the Applicant's conduct. The Applicant submits that a Jones v Dunkel inference should be drawn following the Respondent's failure to call the nurse who was in the Cancer Ward at the time of the Applicant's visit to provide evidence about the PPE worn by the Applicant. In circumstances where the evidence of the Applicant, Ms Perry and Ms Armstrong indicate the limited use of PPE during the visit, it would not be expected that the nurse's evidence would assist in this matter. Accordingly, no adverse inference will be drawn for the failure to call the nurse to give evidence on this issue.

[68] The Applicant had the ability to apply for an exemption in order to visit Ms Armstrong in the Cancer Ward. Whilst her desire to see her friend is understandable, her refusal to engage with the exemption process is not. At a time where the population generally had to accept significant inconvenience and restrictions to ensure the protection of others, it was not reasonable for the Applicant to ignore the exemption process and walk directly into the Cancer Ward in breach of the Directive without any consideration of the potential consequences of such an action.

[69] The Applicant submits that she had a 'reasonable excuse' on the basis that she had visited Ms Armstrong who had been diagnosed with stage four cancer at Ms Armstrong's request out of compassion whilst under the supervision of GCUH staff including a nurse.

[70] It cannot be accepted that either Ms Perry or the nurse in the Cancer Ward were acting in a supervisory capacity when the Applicant visited Ms Armstrong. There was no evidence that the nurse was informed of the visit or engaged with either Ms Armstrong or the Applicant during the visit beyond a cursory acknowledgment. There is no evidence that Ms Perry's position at the GCUH gave her supervisory responsibilities over the Applicant.

[71] The act of visiting a close friend who had been diagnosed with stage 4 cancer was clearly behaviour motivated by compassion; however, one could reasonably accept that almost all proposed visits to the Cancer Ward by friends and family were motivated by compassion. The only difference was that the Applicant was able to access the ward as a result of her employment. With this access as a public sector employee comes a responsibility to adhere to processes designed to protect both the health of patients and public confidence in the hospital.

[72] Mr Calvert gave the following evidence regarding consideration of compassionate grounds-

Well, can I put it to you that this case was a case that involved compassionate grounds? --- Well, if she'd applied for an exemption and been considered under these grounds and been granted it, got the letter and entered the hospital in her own time as a visitor, being escorted, gloved and gowned and accompanied through the hospital, then yes, but that's not what she did, is it? [48]

[73] The Applicant submits that the Directive did not prevent the Applicant from visiting the Cancer Ward on the basis that the visit was conducted out of compassion following a request by Ms Armstrong and occurred under the supervision of GCUH staff. The Applicant contends that accordingly such a visit was exempt from prohibition pursuant to the following -

cl 17(d) of the Directive;
cl 17(e) of the Directive; and
Part 8 of the Directive.

[74] Clauses 16 and 17(d) and 17(e) of the Directive are outlined as follows -

Subject to paragraph 17, a patient of a hospital in a restricted area may not have visitors.

The following patients of a restricted hospital may have visitors in accordance with the hospital's clinical guidelines for COVD-19 approved by the operator of the hospital:

a patient of the hospital with a disability who requires support from a disability support worker or an informal carer; or

Example: A person may require support from a disability support worker or person who has provided long-term informal support, such as a family member or friend.

other patients that the operator of the hospital believes is necessary to have visitors for emergency or other compassionate grounds.

[75] The Applicant appears to submit that the lack of evidence of clinical guidelines in some way assists the Applicant's case. Clause 17 clearly indicates that certain categories of patients may have visitors in accordance with the hospital's clinical guidelines for COVID-19 approved by the operator of the hospital. It cannot be the case that the possible absence of approved clinical guidelines gave the Applicant permission to ignore the requirements of the Directive. On the Applicant's own evidence, no attempt was made to seek an exemption from the restrictions outlined in the Directive.

[76] Ms MacBeth gave evidence that Ms Perry wrote the COVID-19 standard operating procedures for environmental services at GCUH.[49] Neither party contends that these procedures represented 'clinical guidelines for COVID-19 approved by the operator of the hospital'.

[77] Even if it were accepted that the Applicant was permitted to visit Ms Armstrong given the absence of clinical guidelines approved by the operator of the hospital, which it is not, Ms Armstrong was not a patient permitted to receive visitors in the categories within cl 17.

[78] There was no evidence that Ms Armstrong was a patient of the hospital with a disability in accordance with cl 17(d).

[79] In addition, there was no evidence that the operator of the GCUH believed it necessary for Ms Armstrong to have visitors for emergency or other compassionate grounds in accordance with cl 17(e). This clause did not allow for the Applicant to determine arbitrarily that it was necessary to visit a patient on compassionate grounds - this was a decision for the hospital.

[80] For completeness, I will consider the Respondent's submission regarding cl 17(b) of the Directive which contemplated the approval of a visitor to "a patient of the hospital being provided end of life care" in circumstances where an exemption had been obtained before attending a hospital for an end of life visit. The Applicant gave evidence that she did not seek to obtain approval[50] and I note the Respondent's submission that no serious attempt was made to establish that Ms Armstrong, who remains alive today, was such a patient. Having observed Ms Armstrong give evidence at the hearing, I have no reason to doubt her testimony that at the time of the visit she had received a stage four cancer diagnosis. There is, however, no evidence that Ms Armstrong was being provided end of life care, and no evidence that the Applicant had applied for or received an exemption before the visit. Accordingly, the Applicant was not permitted to visit the patient in reliance on cl 17(b).

[81] The Applicant contends that she has at her disposal the exculpatory provisions of Part 8 because she is able to show 'reasonable excuse' for her conduct on 12 July 2021.

[82] Part 8 of the Directive is outlined as follows[51] -

A person to whom the direction applies commits an offence if the person fails, without reasonable excuse, to comply with the direction.

Section 362D of the Public Health Act 2005 provides:

A person to whom a public health direction applies must comply with the direction unless the person has a reasonable excuse.

Maximum penalty-100 penalty units or 6 months imprisonment.

[83] As outlined above, Part 8 deals with penalties and a 'reasonable excuse' in criminal proceedings and accordingly is not relevant to this matter. The Applicant has not been criminally charged in relation to her conduct.[52]

[84] For the reasons outlined above, it was reasonable for the Respondent to substantiate Allegation Two and make the associated disciplinary finding.

[85] Following consideration of the Applicant's response to the first show cause notice, the Respondent issued correspondence to the Applicant advising of the disciplinary findings and proposing the disciplinary penalty of termination.

[86] The Applicant was given a period of seven days to provide a response as to why the proposed disciplinary penalty should not be taken.

[87] After considering the Applicant's response, the Respondent determined that the Applicant's employment be terminated.

[88] In the decision by Mr Ron Calvert to terminate the Applicant's employment, he stated that he was concerned by the response made by the Applicant that she had never before been the subject of performance, conduct, or disciplinary issues, and had an enviable and unblemished employment record.

[89] Mr Calvert stated that he found this submission to be misleading on the basis that the Applicant had recently been subject to a disciplinary process following her parking in a restricted zone at GCUH ('the parking incident') which resulted in a written formal non-disciplinary warning.

[90] The parking incident was described by Mr Calvert in the following terms -

Relevantly, you parked in a bay clearly marked for couriers behind E Block which is a space specifically designed for couriers to collect and deliver urgent and important pathology, clinical samples, information and equipment.

[91] This parking breach occurred after the conduct outlined in Allegations One and Two. The Applicant's contention that she had an 'unblemished employment record' was clearly not accurate as a matter of fact. There is no dispute that the Respondent had issued a written formal non-disciplinary warning following the parking incident. Whilst the Applicant may have disagreed with the warning, the fact remains that it had been issued.

[92] The Applicant gave evidence at the hearing that it was her partner who had committed the parking breach whilst she was a passenger in the vehicle.[53] It is not necessary for me to determine whether the warning should have been issued in the circumstances. The fact remained that it had been issued, and the Applicant should not have claimed to have an unblemished employment record in her response to Mr Calvert.

[93] It was open to the Applicant to submit to Mr Calvert that it was unreasonable for the Respondent to have issued her with a warning for the parking incident, however, it was not open to the Applicant to posit that she had an unblemished employment record. The fact remains that she did not have an unblemished employment record as she had been subject to a disciplinary process and had received a warning for the relevant conduct.

[94] Mr Brad Whitfield managed the disciplinary process following the parking incident and gave evidence about the process provided to the Applicant to allow her to respond prior to the issuing a warning letter.[54]

[95] The Applicant made substantial submissions about the parking incident and contended that the incident should have been managed via managerial guidance rather than through a disciplinary process.

[96] Mr Whitfield gave evidence that if a complaint were made alleging someone else had unauthorisedly parked in the area, he would adopt the same course as he did with the Applicant.[55]

[97] I note that the Applicant's husband, who was also in the vehicle, was treated in the same manner as the Applicant in that he was given an opportunity to respond and was ultimately issued with a warning.[56]

[98] When cross-examined as to his knowledge of whether it was the Applicant or her husband driving the vehicle involved in the parking incident, Mr Calvert gave evidence that in the scheme of things the parking breach did not matter -

... Again, you're placing too much emphasis on - on the thinking behind your suggestion, being that a critical factor would have been this unblemished record. I've not taken that into account. It wouldn't have made a difference. It's an aside. You know, when I read this letter and I read the - you know, the mitigations and I read the response to those mitigations point by point, it's an aside. It's not a critical determining factor. It's like, no, it's not quite right, is it, but anyway, and then there's other things to consider.

Okay? --- But even if - but even if, you know - even if there was no technicality about an unblemished record, even if there was an unblemished record, it wouldn't have changed my mind.

Do you say, really, in the scheme of things, the parking breach doesn't matter much? Is that you say? --- That's exactly what I'm saying, yes.

Okay? --- And I'm also saying suggesting you've got an unblemished record when you haven't is actually not a big deal, given the minor nature of the offence. [57]

[99] I do not accept the Applicant's submission that Mr Calvert's evidence was inconsistent with the statements in the termination notice regarding his concern about the Applicant's misleading statements about her 'unblemished' employment record. When these statements were put to him in cross-examination Mr Calvert gave the following evidence -

... Yes, some concern. It's not a - it's not a - you know, it's not a fundamental breach of trust, but it's not quite right, is it? [58]

[100] The termination letter outlines Mr Calvert's consideration of each of the Applicant's responses. It would have been incorrect to accept the Applicant's submission of an unblemished employment history in circumstances where there was a record of a written warning. It can reasonably be inferred from the letter that Mr Calvert gave more weight to the seriousness of the Applicant's conduct in breach of the Directive rather than her disciplinary history.

[101] The Applicant contends that 17 other staff visited Ms Armstrong and other patients at or around the time of 12 July 2021 and were not dismissed from their employment. The Applicant submits that the Commission is entitled to consider the question of differential treatment given the evidence of comparable conduct of other employees visiting Ms Armstrong in the Cancer Ward of the GCUH on or around 12 July 2021.

[102] Further, the Applicant submits that such alleged breaches were not investigated by the Respondent or brought to the attention of Mr Ron Calvert.

[103] I accept Mr Calvert's evidence that he was not made aware of allegations of other breaches of this type,[59] however, I note that these were bare allegations and not disciplinary findings based on substantiated allegations. I do not accept that the Respondent did not examine the other alleged breaches based on the evidence provided by Mr Brown.

[104] Ms Armstrong provided a three-page statutory declaration in October 2021 outlining her recollection of the Applicant's visit on 12 July 2019.[60] Ms Armstrong included the following -

While I was admitted at GCUH, I have had many staff member [sic] from Environmental Services and from other areas come by my room for quick visit [sic] to wish me well.

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Judgment (330 paragraphs)

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