Williams v State of Queensland

• [7] At the time of the preparation of this decision, no decision has been made with respect to the imposition of the proposed disciplinary action.

• [8] These reasons will only address the disciplinary findings and will not touch upon the proposed disciplinary penalty of termination of the Appellant's employment.

• [9] The issue to be determined in this appeal is whether the disciplinary finding decision dated 20 February 2025, which found the two allegations to be substantiated, was fair and reasonable.

• [10] For the reasons that follow I am satisfied that the decision to substantiate the allegations was not fair and reasonable. The decision is set aside and returned to the Decision-Maker with directions.

• [11] Section 562B(3) of the Industrial Relations Act 2016 (Qld) ('IR Act') provides that a public sector appeal is to be decided by reviewing the decision appealed against and 'the purpose of the appeal is to decide whether the decision appealed against was fair and reasonable'.[4]

• [12] A public sector appeal is not a fresh hearing, but rather, a review of the decision arrived at by the decision-maker.[5]

• [13] The IR Act provides that for an appeal against a disciplinary decision, the commission:[6]

(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.

• [14] The issue for my determination is whether the decision appealed against is fair and reasonable.[7]

• [15] Section 562C(1) of the IR Act outlines that the Commission may determine to either:

• 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; or

• set the decision aside and substitute another decision.

• [16] A disciplinary finding decision that allegations have been substantiated is not a disciplinary decision as defined in s 129 of the Public Sector Act 2022 (Qld) ('the PS Act'). In the present case disciplinary action has not yet been taken against the Appellant.

• [17] Pursuant to s 132(4)(b) of the PS Act a fair treatment appeal is available regarding a finding made pursuant to s 91 of the PS Act that a disciplinary ground exists for the person.[8]

• [18] Section 131 of the PS Act lists the types of decisions against which an appeal may be made. Section 131(1)(d) of the PS Act outlines that a fair treatment decision may be appealed.

• [19] Fair treatment decisions are defined within s 129 of the PS Act, which relevantly states:

fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.

• [20] I am satisfied that the Disciplinary Finding Decision is one that can be appealed pursuant to s 131 of the PS Act.

• [21] Section 564(3) of the IR Act requires that the appeal be lodged in the Queensland Industrial Relations Commission within 21 days after the decision being appealed against is made.

• [22] The decision was dated 27 March 2025. This meant that the appeal had to be filed on or before 17 April 2025.

• [23] The Appellant Notice was filed by the Appellant on 17 April 2025. I am satisfied that that the Appellant is entitled to appeal.

• [24] Section 90 of the PS Act defines the following terms (emphasis added):

disciplinary finding means a finding that a disciplinary ground exists.

disciplinary ground means a ground for disciplining a public sector employee under section 91.

• [25] Section 91 of the PS Act relevantly provides as follows:

(1) A public service employee's chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has -

(h) contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.

(2) A disciplinary ground arises when the act or omission constituting the ground is done or made.

(a) inappropriate or improper conduct in an official capacity; or

(b) inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

victimising another public sector employee in the course of the other employee's employment in the public sector

(i) a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or

(ii) a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994...

• [26] Discipline 05/23 ('the Discipline Directive') operated from 1 March 2023 and its purpose is to outline the process for managing disciplinary action in accordance with the PS Act.

• [27] Clause 7 of the Discipline Directive deals with the requirements for commencing a disciplinary process and relevantly states:

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.

• [28] Clause 9 of the Discipline Directive sets out the disciplinary process. Clause 9.3 sets out the show cause process for a disciplinary finding and relevantly states:

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.

• [29] Clause 9.4 of the Discipline Directive sets out the process of making a disciplinary finding as follows:

1. 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
2. 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
3. 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
4. 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
5. 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
6. 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.

• [30] The 'Definitions' section of the Discipline Directive includes the following definition of 'balance of probabilities':

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

• 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.

• [31] A Directions Order was issued to the parties on 24 April 2025, inviting the provision of written submissions as follows:

• Appellant's outline of submissions filed on 8 May 2025.

• Respondent's outline of submissions filed on 22 May 2025.

• Appellant's reply submissions filed on 29 May 2025.

• [32] As noted earlier, the Appellant provided further submissions to the Respondent dated 2 April 2025 which I consider to be relevant to the question of the substantiation of the allegation against the Appellant.

• [33] Although those submissions were provided following the disciplinary finding decision being made, and as a consequence, the Decision-Maker did not consider those matters, as a matter of procedural fairness to the Appellant, I consider that it is appropriate for those submissions to be also considered in determining the appeal.

• [34] Given the length and detail provided in the Schedule attached to the Appellant's Appeal Notice, the Appellant declined to provide any further submissions on 8 May 2025.

• [35] I have considered all of the submissions and attached evidence provided by the parties although they may not be specifically referred to in these reasons.

Appellant's supplementary submissions dated 2 April 2025

• [36] The most significant matter raised by the Appellant (which she had failed to mention in her earlier submissions to the Decision-Maker) is that in her role at Kingaroy Hospital, she is also expected to see patients in Emergency Department, not in her role as a Clinical Midwife, but as a Registered Nurse.

• [37] In relation to the contention that there should be a Hospital Based Corporate Information System ('HBCIS') Occasion of Service recorded for every patient presentation, the Appellant agrees that this should be the case, however, she states that this may not always be the case. The Appellant notes that Kingaroy Hospital is a small rural hospital, and that they lack an administration officer. The Appellant further submits that the expectation of staff is to place a patient sticker into a book with dates, times, complaint and if a doctor saw the patient. She notes that this is not always done by the midwifery staff for various reasons. Although not stated by the Appellant, it appears that if the above information is not completed, or then not transferred into the HBCIS by an administration officer, there will be no relevant HBCIS Occasion of Service record.

• [38] The Appellant further submits that when maternity patients are transferred out to larger hospitals, the maternity staff like to check up on them to see if they have birthed. The purpose of this is to assist the Appellant as Clinical Midwife in keeping the birth book up to date, but to also assist the midwife who does the Extended Midwifery Care ('EMC') or home visits.

• [39] The Appellant further alleges that there are patients who have birthed elsewhere due to risk, who present to Kingaroy Maternity Unit following early discharge for admission or outpatient care with no information, discharge summary not given to them and no telephone call. The Appellant contends that this explains why she has accessed The Viewer to read their discharge summary to ensure that the patient receives the best care. As noted in more detail below, the Appellant maintains that Kingaroy Hospital is not notified of discharges for birthing mothers.

• [40] In relation to general patient outliers, the Appellant submits that they would be admitted under general and not maternity in HBCIS. She explains that this would be because their admission source is different, in addition to their treating team being from the Inpatient Unit and not Maternity. The Appellant alleges that she would have to verify this with an administration officer.

• [41] Regarding patient IPH 280...[9], the Appellant confirms that she:

• is unable to comment because she does not know who they are;

• would have to do an audit as to why she looked this patient up. The Appellant notes that it could have been to check whether the patient birthed elsewhere, to ensure that the booking spreadsheet is kept up to date. The Appellant notes that she regularly utilises The Viewer to check if these patients had birthed elsewhere.

• [42] Regarding patient KNH 057.../SCUH 1179..., the Appellant believes that this may have been a patient pregnant with triplets. She notes that she initially saw the patient as an outpatient with threatened pre-term labour. The Appellant submits that she accessed the patient's records multiple times to confirm whether she had birthed at SCUH, and to ascertain whether there was a potential transfer of the babies back to Kingaroy Hospital for further feeding and growing. The Appellant also noted it was necessary to know when the patient would be back in the community for visiting care.

• [43] The Appellant further confirms that the two Medical Officers who have occasionally requested the Appellant to access The Viewer to monitor patient well-being were Dr Ben Smith and Dr Scott Taylor.

• [44] As mentioned above, the Appellant filed 8 pages of submissions in support of the appeal as an Attachment to the Appeal Notice. The ground on which the Appellant relies on can be summarised as below:

• The Appellant contends that the decision was unfair and unreasonable as the decision maker:

1. Failed to appropriately apply the principle in Briginshaw v Briginshaw[10] ('Briginshaw') in determining whether the allegation was substantiated on the balance of probabilities.

1. Failed to establish the alleged conduct amounted to misconduct within the meaning of the PS Act.

• [45] The Appellant contends that the allegation is serious as the Respondent alleges it amounts to misconduct, have placed the Appellant on suspension with pay since 31 March 2025 and propose to terminate the Appellant's employment.

• [46] Citing His Honour Vice President O'Connor in the decision of White v State of Queensland (Central Queensland Hospital and Health Service)[11] the Appellant submits that the serious nature of the allegation places a heavy onus of the Respondent to ensure that the Decision-Maker attains the necessary standard of satisfaction when making decisions on the balance of probabilities.

• [47] The Appellant goes on to submit that the Respondent has not met the above standards due to disregarding the Appellant's reasons (for consulting the medical records). Instead, it is submitted that the Decision-Maker relied on her own subjective view of how The Viewer should be used by an employee and failed to consult objective evidence. The Appellant further contends that the Decision-Maker failed to properly consider the alleged misconduct within the specific context of a small rural hospital.

• [48] The Appellant further contends that the Respondent's findings are unreasonable given the Respondent did not attempt to rely on objective evidence to support her findings or enquire about other evidence that could have supported the Appellant's submissions. The Appellant goes on to cite specific examples of this in paragraph 14 of the Appellant's submissions as follows:

1. a) Legislation that demonstrates the Appellant's prescribed access to The Viewer and how the alleged conduct failed to accord with these legislative requirements;

b) A policy or procedure document specific to The Viewer that demonstrates the Appellant 's access to The Viewer amounted to misconduct;

c) Statements by the Medical Officers who the Appellant has stated asked her to access The Viewer;

d) A policy or procedure document that supports the Respondent's understanding that all ED presentations generate a patient record in the ED Information System;

e) A policy or procedure document that supports the Respondent's understanding that all admissions have a corresponding HBCIS record to verify admission and length of stay on the unit;

f) A policy or procedure document that supports the reasonableness of the Respondent's expectation that any patient who presents as an outpatient, scheduled, or unscheduled would have a corresponding occasion of care or presentation record in the HBCIS;

g) Evidence that demonstrates it was unreasonable or unusual in the context the Appellant's role to access The Viewer to see when booked women have birthed elsewhere to update booking lists and that discharge summaries or notifications are always provided, negating the need for the Appellant to conduct these follow-ups;

h) Evidence that demonstrates it was unreasonable or unusual in the context the Appellant's role to access The Viewer after hours when Medical Officers are not available in her unit;

1. Evidence that demonstrates the Respondent gave due consideration to the fact the Appellant works primarily as a clinical midwife but is required in her capacity as a Registered Nurse to assist in the ED and how this may have impacted her access to The Viewer;

j) Specific evidence from the Appellant regarding the patients who were the subject of the show cause letter. The Appellant was not provided patient records in order to respond to the show cause notice, only the audit report. The Respondent could have adduced further and more significant evidence if patient records were reviewed by the Appellant; and

k) Seeking statements from any other staff members in regard to the use of The Viewer in the context of a small rural hospital.

• [49] The Appellant submits that the conduct which is the subject of the decision letter does not constitute 'misconduct' within the meaning of s 91(1)(b) of the PS Act, specifically s95(5)(a).

• [50] The Appellant cites the decision of his Honour Deputy President Merrell in Coleman v State of Queensland (Department of Education)[12] ('Coleman'), where his Honour stated:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[13]

• [51] In Ball v State of Queensland (Queensland Corrective Services)[14] ('Ball'), Vice President O'Connor cited with approval the observation of Deputy President Merrell in Coleman excerpted in the preceding paragraph.

• [52] The Appellant goes on to submit that in Australian Workers' Union of Employees, Queensland v Gold Coast Hospital_[15]_ Deputy President Merrell echoed his earlier remarks in Coleman in this way_:_

[36] In my view, inappropriate or improper conduct in an official capacity involves something more than mere negligence, error of judgement or innocent mistake and includes a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by an employee to whom s 187 of the PS Act applies.[16]

• [53] The Appellant submits that the time that lapsed from the initial concerns being raised to the issuing of the first show cause letter, being a period of approximately four months, fails to demonstrate the alleged conduct was serious enough to constitute misconduct. Despite concerns being raised in July 2024, the Appellant was not placed into suspension until 31 March 2025.

• [54] The Appellant submits if the Respondent was concerned that the Appellant had engaged in conduct that was a deliberate departure from accepted standards, was seriously negligent or she had abused her privileges, more prompt action would have been taken, including an expedited investigation or earlier suspension from her role.

• [55] The Appellant submits that the reasons and explanations provided in her show cause response do not demonstrate a deliberate departure from expected standards but rather show that the Appellant has accessed records in the interest of providing care for patients.

• [56] The Respondent rejects the Appellant's contention that the Decision-Maker did not have objective evidence to support her findings and further, that she did not enquire about other evidence that could have supported the Appellant's submissions. The Respondent submits that the decision-maker comprehensively outlined the reasons for her findings, which included relying on health service information data and detailed knowledge of hospital processes and the Appellant's first response.

• [57] The Respondent provided detailed responses to the various examples of the alleged failings by the Decision-Maker to rely on objective evidence to support her findings that the Appellant set out in paragraph 14 of her submissions.

• [58] In relation to paragraph 14(a), the Respondent submits that the relevant legislation was clearly articulated in the first show cause notice, including specific references to the requirements of the Hospital and Health Boards Act 2011 ('the HHB Act'), including s161C, which states that a prescribed health professional 'must not access information contained in a prescribed information system unless the information is necessary for the prescribed health professional to facilitate the care or treatment of an individual ... '. The Respondent submits that the Decision-Maker referenced these obligations in her findings.

• [59] As regards paragraph 14(b) of the Appellant's submissions, the first show cause notice provided direct references to relevant sections of the HHB Act that had been breached. Additionally, in the second show cause notice the Decision-Maker referred to legislative obligations that apply to prescribed information systems, including The Viewer, and determined that the Appellant's conduct was a departure from these standards as the Appellant had inappropriately used The Viewer when she was not providing care or treatment to the identified patients in any capacity.

• [60] The Respondent goes on to note that whilst not explicitly stated in the second show cause notice, the Decision-Maker was referring to documented requirements employees are required to comply with when using an information system that stores patient information including:

• When an employee's access to The Viewer is approved, an employee is informed that The Viewer contains clinical and administrative data which should only be accessed for treatment related purposes.

• When an employee logs into The Viewer, they agree to The Viewer Terms and Conditions of Use, which informs that patients who access public sector health services expect that their information remains private and confidential and that Queensland Health staff must abide by Part 7 of the HHB Act and the Information Privacy Act 2009 (Qld).

'The Viewer features safeguards to support this framework, however users are asked to remember appropriate access, and that the use of patient information is routinely associated with patients in our direct care (or administrative support to do this) and patients we are asked to consult on, either directly or remotely (e.g., clinical advice across facilities).'

• Queensland Health Digital Standard - Information access, use and disclosure states:

3.2.4 Authorised users must only access, use or disclose confidential, personal, and sensitive information when it is required for, and consistent with, the performance of the functions and duties of their role and in accordance with relevant legislation and authorisations.

• The Code of Conduct for the Queensland Public Service relevantly provides:

4.4 Ensure appropriate use and disclosure of official information

. . . 'treat official information with care and use it only for the purpose for which it was collected or authorised'.

• [61] In relation to paragraph 14 c) of the Appellant's submissions, the Respondent notes that the Appellant's first response included a non-specific claim that she had often been asked to review patients in the Emergency Department (ED) on behalf of Medical Officers.

• [62] The Respondent notes that no evidence was supplied by the Appellant to support this claim nor did the Appellant identify any Medical Officer to verify the claim. The Respondent contends that it was incumbent upon the Appellant to provide this information if she believed this to be relevant to the Decision Maker's consideration.

• [63] In relation to paragraphs 14 d), e ), f) of the Appellant's submissions, the Respondent contends that it is a requirement that every presentation/admission to a healthcare facility is to be documented in a relevant system, because accurate and timely documentation is a fundamental requirement in clinical practice and essential for safe and effective patient care. The Respondent submits that recording each presentation ensures continuity of care, enables appropriate clinical decision-making, supports communication among healthcare clinicians, and meets both legal and professional obligations.

• [64] This practice is also in line with standard healthcare procedures, accreditation requirements, and the duty of care owed to every individual seeking treatment. Whilst the DDHHS Procedure Clinical Documentation does not explicitly set out requirements as set out by the Appellant's appeal, it does detail expectations regarding clinical documentation, including, for example, the expectation that clinical documentation details information regarding hospital admissions/presentations (s3.1) and that documentation is recorded on approved clinical records forms, in both electronic and physical format (s3.2.1).

• [65] As regards paragraph 14 g) of the Appellant's submission, the Appellant claimed she:

'...utilised The Viewer to see when our booked women have birthed elsewhere as they have not birthed here in Kingaroy as planned. And I updated our booking list every month to reflect this'.

• [66] The Respondent notes that this claim was considered by the Decision-Maker, but not accepted, as it is custom and practice in healthcare that patient discharge summaries are provided to the returning facility. This was addressed in the decision, and further, the patient information accessed that was addressed in the decision were for patients that were not patients of Kingaroy Hospital.

• [67] In relation to paragraph 14 h), the Respondent contends that the Decision-Maker never claimed that it was unreasonable or unusual for the Appellant to access The Viewer after hours when Medical Officers are not available in her unit. In the decision letter, the Decision Maker acknowledged this could occur, however, noted that accessing this information would pertain to patients with whom care was being provided. The patients referenced in the decision did not attend Kingaroy Hospital in any capacity.

• [68] In relation to paragraph 14 i), the Appellant acknowledges she failed to explain in her first response that she was also 'expected to see patient in the ED not only as a midwife but as an additional staff member on redeployment to assist with busy periods in the hospital as I am a registered nurse too'. As this explanation was not submitted with her first response, it was not possible for the Decision-Maker to consider and address this.

• [69] The Respondent notes that the Appellant in her first response only noted she was required to access The Viewer when requested to support maternity patients who present to Kingaroy Hospital ED. This was considered and addressed in the findings in the decision letter.

• [70] As regards paragraph 14 j) of the Appellant's submissions, the Respondent disagrees that patient records should have been provided to the Appellant with the first show cause notice. The Respondent has an obligation to maintain patient confidentiality and producing patient records through a discipline process can jeopardise this. The Allegation particulars provided significant detail, for instance, whether the patient(s) were in the Appellant's care or a patient of Kingaroy Hospital. This afforded the Appellant a reasonable opportunity to respond. Additionally, it was open to the Appellant to request to review the patient records at any time during the process to assist with her response. The Appellant never made such a request.

• [71] In relation to paragraph 14 k) of the Appellant's submissions, the Respondent contends that seeking of statements from other employees at Kingaroy Hospital in regard to (their) use of The Viewer is not reasonable and would not have been relevant. The allegation relates to the appropriateness of the Appellant's use of The Viewer.

• [72] The Respondent submits that the elapsed time between when the concerns were first raised on 18 July 2024 and the first show cause notice issued on 11 November 2024 was necessary to allow proper examination of extensive patient records. The Respondent therefore refutes the Appellant's submission that the delay was reflective of the allegations not being serious and not constituting misconduct.

• [73] In relation to the Appellant's submissions that the delay in suspending her was not consistent with the Respondent being concerned that the Appellant had engaged in conduct that was a deliberate departure from accepted standards, was seriously negligent or that she had abused her privileges, the Respondent again points to the necessity to undertake enquiries into the reported conduct to understand if there was any basis to the claim.

• [74] The Respondent submits that upon the Decision-Maker making their findings on the allegation, determining that the conduct did constitute misconduct under the PS Act and that there were grounds for discipline, the decision was made to suspend the Appellant with normal remuneration. The Respondent submits that the timing of the decision to suspend the Appellant was fair and reasonable in the circumstances.

• [75] Regarding the finding of misconduct, the Respondent submits:

• The Decision-Maker clearly established why the Appellant's conduct amounted to misconduct.

• As an experienced Clinical Midwife, the Appellant ought to have known the standards and expectations of when it is appropriate to access confidential patient records held in prescribed information systems maintained by Queensland Health in accordance with the HHB Act and previously mentioned policies and procedures.

• The conduct does constitute misconduct as it was a deliberate departure from the accepted requirement under the Nursing and Midwifery Board of Australia, Code of Conduct for Midwives, which includes a requirement (cl 3.5d) that midwives must 'access records only when professionally involved in the care of the woman and authorised to do so'.

• The Appellant's first response affirmed her awareness of appropriate use of systems and records access, yet the Appellant knowingly and repeatedly accessed The Viewer inappropriately.

• The Appellant's conduct constituted misconduct as the conduct was an abuse of the privilege and confidence bestowed upon the Appellant's position as a Clinical Midwife with the Respondent.

• [76] The Appellant submits that the Discipline Directive provides at cl 9.3(d) that a copy of all evidence relevant to the allegations must be provided. Further, cl 9.7 states that each finding must be clearly explained. The Appellant contends that this did not occur.

• [77] It is further submitted by the Appellant that the Respondent has not referred anywhere in the disciplinary finding decision to any policy/procedure on how the Appellant's use of The Viewer failed to accord with any legislative or other requirement or how it would amount to misconduct.

• [78] The Appellant further notes that it was only in the Respondent's submissions that three new policies were provided and it is only in the submissions that a specific section of the code of conduct is referred to.

• [79] In relation to the Respondent's reference to the Darling Downs Hospital and Health Service ('DDHHS') Procedure Clinical Documentation, the Appellant notes that this procedure has also not been mentioned until the submissions, and nor is it relevant.

• [80] The Appellant disagrees with the Respondent's contentions that it was incumbent upon the Appellant to provide the names of the Medical Officers she alleges asked her to review patient records. The Appellant contends that there was nothing hindering the Respondent from making enquiries to Medical Officers or seeking this information from the Appellant. The Appellant raises a similar argument regarding seeking statements from other employees at Kingaroy Hospital regarding their use of The Viewer. The Appellant contends that the failure of the Respondent to seek such statements means that there was a failure to appropriately investigate by the Respondent.

• [81] In relation to the key finding grounding the disciplinary finding decision, that being that the Appellant had accessed medical records for patients who had not attended at the Kingaroy Hospital (this conclusion being at least partially premised on a lack of documentation), the Appellant submits as follows:

• The Appellant disagrees that discharge summaries are provided to the returning facility in the form of fax or email, and nor is a telephone call received from the transferring facility. The Appellant submits that The Viewer is used to monitor when the patient has birthed and to organise home visits, along with time sensitive tests such as the Newborn Screen Test.

• The Appellant submits that the conclusion that the nominated patients had not visited the Kingaroy Hospital failed to consider Kingaroy's paper based system. The Appellant notes that women who are booked in to birth at Kingaroy and antenatal clinic visits are all documented on the pregnancy handheld record and the photocopy is in their medical record. All assessments are filed in the patients' medical record.

• The Appellant further submits that many women present to Kingaroy Emergency Department that are not booked in. It is only when a woman presents with a pregnancy related concern, that an antenatal assessment form is completed. The Appellant notes that the patients' presentation is documented into a book called "Occasions of Service", a patient sticker is placed in this book with the time the patient arrived, time left and complaint. At a later date, the administration officer types this into the HBCIS system which then feeds into The Viewer documenting the patients' outpatient presentation. If the Midwife does not put the sticker in the book, the presentation is not captured on The Viewer as an outpatient presentation.

• The Appellant further notes that women who birthed elsewhere but are booked into Kingaroy for antenatal care arrive on the ward requesting baby weight, blood tests, wound check and blood pressure checks. The Appellant contends that there is no information provided from their birth as the birthing facility never provides them with a printed discharge summary. The Viewer is used to check this summary, operation report, pathology results and discharge medications. This outpatient presentation is documented in the "Occasions of Service" book with the patient sticker.

• [82] Regarding the Respondent's contention that the Decision-Maker had clearly set out why the alleged conduct amounted to misconduct, the Appellant disagrees and submits that there is no reference in the decision to a departure from a named standard and how the Appellant's conduct represented a deliberate and egregious departure from those standards. The Appellant further contends that when reviewing the EDS and The Viewer - Terms of Conditions ('The Viewer Policy'), the Appellant has used The Viewer appropriately.

• [83] I am required to decide this appeal by assessing whether or not the decision appealed against is fair and reasonable. This involves a review of the decision-making process that has been utilised, and the decision arrived at.

• [84] Deputy President Merrell in Colebourne v State of Queensland (Queensland Police Service) (No 2)[17] ('Colebourne') considered the meaning of 'fair and reasonable' and concluded that it should be construed within the ordinary meaning of the phrase as used in the context of s 562B of the IR Act.[18]

• [85] In Colebourne his Honour further noted that assessing whether a decision was 'fair and reasonable' is not an assessment of whether the decision was unreasonable only by reference to the legal standard.[19] His Honour concluded that assessing whether a decision was 'fair and reasonable' permitted a review of both the factual merits and legal reasonableness of both the decision itself and the process of making that decision.[20]

• [86] In the initial show cause letter from Ms Kylie Pippos dated 11 November 2024 a significant range of dates was provided to the Appellant as particulars of the allegation that she had on multiple occasions accessed confidential patient records of individuals that she was not providing care to. The particulars set out conduct on the following dates:

• [87] The information that was provided to the Appellant relating to those allegations was the patient number, the time that the Appellant accessed the records and the patient numbers of the patients that the Appellant was assigned for that shift. Those allegations from my analysis, related to 47 different patients. Of those 47 patients, the Appellant allegedly accessed records for 16 patients from two different hospitals.

• [88] On some of the nominated days, there are allegations of multiple occasions where the Appellant accessed medical records without a proper basis.

• [89] It appears that some form of audit report was provided as attachments 4 and 5 to the show cause letter dated 11 November 2024. All that has been provided to the Commission by the parties is one page of that audit report that is heavily redacted. From that page, it appears that the only information provided by the audit report is the date, time and patient number of the patient whose medical records have been accessed by the Appellant.

• [90] There was no indication in the original show cause notice that the Appellant had the ability to access the relevant medical records of the patients to assist her in preparing a response to the allegation. Additionally, there is also no indication that the Appellant had the ability to request access to the relevant patient records. There is certainly no indication of this in the initial show cause notice dated 11 November 2024.

• [91] Given the nature of the particulars provided to the Appellant, her response to the show cause notice provided by email dated 16 November 2024 was understandably quite generic. In that email the Appellant provided the following information:

Outside of looking after inpatients on the ward, I am also responsible for looking after outpatients that are not always admitted on the unit with varying complaints from labour to minor medical complaints. We even have women that arrive unbooked from outside the South Burnett region.

Because of this, I utilise The Viewer to see where the women have been, when their next appointments are due, ultrasounds they have had. Information I need to be able to provide adequate care to them. We do not have a medical officer available to our unit after hours. They are on call only. It is our responsibility to be able to access this information ourselves.

My role also includes looking after general patients that are overflow from the Inpatient Unit. Again, I utilise The Viewer to read their emergency department notes, check CT reports, ultrasound reports.

I have utilised The Viewer on patients we have transferred to another facility to birth at, and to check on their wellbeing at a doctor's request. But also for any follow up we may need to provide them with.

I have utilised The Viewer to check the patient's prescription history as she did not remember how much metformin she took on her admission to hospital.

I have utilised The Viewer to see when our booked women have birthed elsewhere as they have not birthed here in Kingaroy as planned. And I update our bookings list every month to reflect this.

I have had women and babies present requiring NST and weights after birthing elsewhere. I have utilised The Viewer to access their discharge summary.

I often have been asked to review patients in ED on behalf of medical officers who are pregnant. I have utilised The Viewer to see their history, where they have been receiving antenatal care and their ultrasounds if they have had any.

• [92] The Appellant did not have the benefit of accessing any patient information in providing that response.

• [93] Ultimately, in the decision letter dated 27 March 2025, the Decision-Maker has substantiated findings of inappropriate accessing of patient medical records by the Appellant in relation to two patients, with one patient attending both Kingaroy Hospital ('KNH') and the Sunshine Coast University Hospital ('SCUH').

• [94] No explanation is provided by the Decision-Maker in the decision letter as to what findings have been made about the multifarious allegations of inappropriate access to the records of the other 45 patients identified in the particulars to the allegation provided in the show cause correspondence dated 11 November 2024.

• [95] In relation to the two patients that are the subject of the substantiation of the allegation, the decision letter lists the following particulars regarding the Appellant's perusal of the patient's medical records:

• On 14 June 2024:
  • You viewed patient IPH:280... at 23:44 hours.
  • You viewed the "Patient" tab information and file within at 23:44 hours.
  • You viewed the "Procedures" tab information at 23:45 hours.
  • You viewed the "Medical lmaging" tab information at 23:45 hours.
  • You completed viewing patient IPH:280... at 23:48 hours.
  • Your viewing spanned 3 minutes and 33 seconds.

o You viewed the "Patient" tab information and file within at 19:12 hours.

o You viewed the "Procedures" tab information at 19: 12 hours.

o You completed viewing patient IPH:280... at 19:12 hours.

• On 22 June 2024:
  • You viewed patient IPH:280... at 16:29 hours.
  • You viewed the "Patient' tab information at 16:29 hours.
  • You completed viewing patient IPH:280... at 16:29 hours.
  • Your viewing spanned 32 seconds.

As per my findings in relation to your alleged inappropriate use of The Viewer in relation to patient IPH:280..., I also consider my findings applicable for patient KNH:057.../SCUH: 1179... .

As per the audit report attached to my correspondence dated 11 November 2024, your login credentials, [redacted], were used on the following occasions:

• On 7 May 2024:
  • You viewed patient KNH:057... at 17:26 hours.
  • You viewed patient SCUH: 1179... at 17:26 hours, the Sunshine Coast University Hospital records for the same patient KNH:057... .
  • You viewed the "Patient" tab information at 17:26 hours.
  • You viewed the "Outpatient" tab information and specific files within at 17:27 hours.
  • You viewed the "Procedures" tab information at 17:28 hours.
  • You viewed the "Medical Imaging" tab information at 17:28 hours.
  • You viewed the "Pathology" tab information and specific files within at 17:28 hours.
  • You completed viewing patient SCUH:1179... at 17:28.
  • Your viewing of patient SCUH:1179... spanned 1 minute and 22 seconds.

• On 13 May 2024:
  • You viewed patient SCUH: 1179... at 04:46 hours
  • You viewed the "Patient" tab information at 04:46 hours.
  • You viewed the "Outpatient" tab information and specific files within at 04:46 hours.
  • You viewed the "Medical Imaging" tab information and specific files within at 04:47 hours.
  • You viewed the "Pathology" tab information and specific fries within at 04:50 hours.
  • You viewed the "AR/Alerts" tab information at 04:50 hours. You completed viewing patient SCUH:1179... at 04:50 hours.
  • Your viewing of patient SCUH: 1179... spanned 4 minutes and 42 seconds.

• On 21 May 2024:
  • You viewed patient SCUH: 1179... at 00:57 hours.
  • You viewed the "Patient" tab information at 00:57 hours.
  • You viewed the "Outpatient" tab information at 00:57 hours.
  • You viewed the "Medical Imaging" tab information at 00:57 hours.
  • You completed viewing patient SCUH:1179... at 00:57 hours.
  • Your viewing of patient SCUH: 1179... spanned 13 seconds.

• On 2 June 2024:
  • You viewed patient SCUH:1179... at 16:07 hours.
  • You viewed the "Patient" tab information at 16:07 hours.
  • You viewed the "Encounters" tab information at 16:07 hours.
  • You viewed the "Outpatient" tab information at 16:07 hours.
  • You completed viewing patient SCUH:1179... at 16:08 hours.
  • Your viewing of patient SCUH:1179... spanned 39 seconds.

• [96] The level of detail provided in the decision letter regarding the Appellant's access to the medical records of the two patients was not provided in the original show cause correspondence. Further, prior to the Decision-Maker determining to find the allegation substantiated only in relation to those two patients, the Appellant was not provided access to the medical records for those two patients, nor was the Appellant informed of her ability to request access to those records.

• [97] In paragraph 14 j) of the submissions attached to the Appeal Notice, the Appellant contends that the Decision-Maker failed to rely on objective evidence to support her findings, or alternatively, failed to enquire about other evidence that could have supported the Appellant's submissions. The Appellant alleges that the Decision-Maker did not seek specific evidence from the Appellant about the patients who were the subject of the show cause letter, and nor was the Appellant provided patient records in order to respond to the show cause notice, only the audit report.

• [98] In response to those submissions, the Respondent disagrees that patient records should have been provided to the Appellant on the basis that the Respondent has an obligation to maintain patient confidentiality and producing patient records through a discipline process can jeopardise this. The Respondent maintains that the allegation provides significant detail, for instance, whether the patients were in the Appellant's care or a patient of the Kingaroy Hospital. The Respondent contends that this afforded the Appellant a reasonable opportunity to respond.

• [99] Somewhat paradoxically, in light of the Respondent's submission about the necessity to maintain confidentiality regarding the patient's medical records, the Respondent goes on to contend that it was open to the Appellant to request to review the patient medical records at anytime during the process to assist with her response. The Respondent notes that the Appellant did not make such a request.

• [100] The difficulty with the Respondent's submission about the potential for the Appellant to access the relevant patient medical records is, as I have noted above, the Appellant does not appear to ever have been told by the Respondent that she had the ability to request access to the medical records.

• [101] In the supplementary submission provided by the Appellant on 2 April 2025, she has specifically noted in relation to patient IPH:280... that she does not know who this patient is, and that she would have to do an audit (it appears of the relevant medical records) as to why she had looked this patient up.

• [102] The Appellant was requested by the Respondent to provide a response to a show cause notice in relation to an allegation of improperly accessing the medical records of 47 patients over a period of three months, with some of the patients' records being accessed on multiple occasions.

• [103] The information provided to the Appellant to respond to the allegations were the dates she was rostered on, the patients she had responsibility for on those shifts, and the patient numbers whose medical records were accessed by the Appellant, and the dates and times when this occurred.

• [104] In my view the Appellant to some extent was given an impossible task to provide an appropriate show cause response given the information provided to her. In the submissions provided in support of the Appeal Notice, the Appellant notes that she could have adduced further and more significant evidence if patient records were reviewed by her.

• [105] The failure by the Respondent to inform the Appellant of her ability to request access to the various patients' medical records, and to afford her the opportunity to view those records prior to providing her response to the show cause notice in my view means that the process adopted in this disciplinary process was not fair.

• [106] This was further compounded by the Respondent's decision to proceed only in relation to two patients, but to still fail to provide the Appellant the opportunity of viewing those patients' medical records and to provide a specific explanation for her accessing the medical records on the particularised dates.

• [107] In light of those findings, I am not satisfied that the disciplinary finding decision was fair and reasonable.

• [108] A further concern regarding the manner in which the disciplinary process was undertaken relates to the particularisation of the allegation.

• [109] As noted in the preceding section, the Respondent in its submissions contends that the allegation particulars provided significant detail which afforded the Appellant a reasonable opportunity to respond.[22]

• [110] I addressed the obligation of the Respondent to a disciplinary process to provide appropriate particulars of the allegation in Donaldson v TAFE Queensland[23] ('Donaldson') as follows:

[110] It is vital in providing procedural fairness to an employee in a disciplinary proceeding that the allegations he or she has to answer are fully and appropriately particularised in such a way that the Appellant is apprised of the case that they have to meet.

• [111] In Donaldson, I went on to cite the decision of her Honour Philippides JA in Berenyi v Maynard & Anor.[24] In that decision, Philippides JA in determining a judicial review application which dealt with the termination of Ms Berenyi's employment following a disciplinary process conducted under the Public Service Act 2008 observed as follows regarding the obligation to provide sufficient particulars of a charge:

[80] There can be no doubt that natural justice imposes an obligation on an administrative tribunal hearing a disciplinary charge, where dismissal may result on the charge being made out, to furnish particulars of the charge of breach of discipline: see R v Little; Ex parte Fong [1983] VicRp 20; [1983] 1 VR 237. As Street CJ observed in Public Service Board (NSW) v Etherton (1985) 1 NSWLR 430 at 432 (endorsing the decision of Hunt J in Etherton v Public Service Board of New South Wales [1983] 3 NSWLR 297 at 307[8]), the requirements of natural justice impose an obligation on a prosecuting authority (in that case the Public Service Board hearing disciplinary charge) to furnish such particulars as will fairly enable the accused person to understand and to meet the case being made against him. Likewise, Samuels JA (at 434) stated, "I know of no ground in principle or authority which exempts the Public Service Board from compliance with those principles of natural justice which entail that an accused person must be informed of the nature of the case which is sought to be made against him.[25]

• [112] It is clear from the disciplinary finding decision that the Respondent had the ability to provide further particulars of the allegation to the Appellant but has failed to do so, either by choice or by omission.

• [113] In the disciplinary finding decision, the Respondent has provided further detail of the nature of the records accessed by the Appellant on each occasion and the length of time that she accessed the records for (but only in relation to the to the two patients that the Respondent has relied upon in substantiating the allegation).

• [114] Had that level of particularisation of the allegation been provided in the initial show cause notice, it appears likely that the Appellant would have been able to provide a more detailed response to the show cause notice. As an example of this, the further information provided in the disciplinary finding decision has apparently enabled the Appellant to confirm the identity of patient KNH:057.../SCUH: 1179... and in the further submissions dated 2 April 2025, to provide a more fulsome explanation as to the reasons why she accessed that patient's medical records.

• [115] I am satisfied that in light of the further particulars that the Respondent has been able to provide in the disciplinary finding decision, that the allegation in the initial show cause notice was not sufficiently particularised.

• [116] I am further satisfied that the failure by the Respondent to properly particularise the allegation has compounded the unfairness to the Appellant by the Respondent's failure to inform her of her right to examine the patient medical records and to afford her the opportunity to do so. This supports a conclusion that the disciplinary process leading to the disciplinary finding decision was not fair and reasonable.

• [117] The finding that the allegation had been substantiated in relation to the two patients was predicated on the basis that a 'desktop review' of relevant medical records in HBCIS and Emergency Department Information System ('EDIS') was undertaken and had failed to establish that the two identified patients presented at Kingaroy Hospital in any capacity on any of the nominated dates when the Appellant has accessed their medical records.

• [118] Given this factual finding, the Decision-Maker was not satisfied that the Appellant was providing treatment or care to the patients on those dates such that her use of The Viewer to access the medical records would be authorised.

• [119] The veracity of those findings therefore rests on two matters:

• Firstly, whether the 'desktop review' was thorough and captured all of the relevant documentary evidence in light of the various reasons the Appellant had put forward for her accessing patient's medical records;

• Secondly, whether (as contended by the Appellant) it is an appropriate used of The Viewer by the Appellant in her role as a Clinical Midwife to access patient's medical records on days they may have not actually attended at Kingaroy Hospital for the purposes she belatedly identified in her submissions dated 2 April 2025. These included to keep the birth book up to date and to track what may be required by way of Extended Midwifery Care (EMC) or home visits.

• [120] The Appellant in her submissions in paragraph 14 d) to f) contended that the findings by the Decision-Maker were unreasonable given the failure by the Respondent to refer to a policy or document that supported the Respondent's understanding or expectation that:

• All ED presentations generate a patient record in the ED Information System;

• All admissions have a corresponding HBCIS record to verify admission and length of stay on the unit; and

• Any patient who presents as an outpatient, scheduled or unscheduled would have a corresponding occasion of care or presentation record in HBCIS.

• [121] In response to that submission, the Respondent contends that it is a requirement that every presentation/admission to a healthcare facility is to be documented in a relevant system, as accurate and timely documentation is a fundamental requirement in clinical practice. The Respondent refers to the Darling Downs Health Clinical documentation procedure[26] but notes that this document does not explicitly set out the requirements as set out in the Appellant's appeal.

• [122] The Respondent submits that the Clinical documentation procedure does detail expectations regarding clinical documentation, including:

• The expectation that clinical documentation details information regarding hospital admissions/presentations: clause 3.1; and

• That documentation is recorded on approved clinical record forms, in both electronic and physical format: clause 3.2.1.

• [123] In relation to the first issue, the Appellant in both the submissions provided on 2 April 2025 and her submissions attached to the Appeal Notice appears to point to circumstances in which there may be paper based medical records held by the Kingaroy Hospital in relation to patient attendances, which may not have been entered into HBCIS or EDIS due to a break down in processes or a lack of administration staff.

• [124] This explanation was not one that was initially provided by the Appellant in her email show cause response on 16 November 2024. Therefore, it is an explanation that was not considered by the Decision-Maker in reaching the determination that the allegation was substantiated.

• [125] The particulars of the allegation that are set out in the initial show cause letter dated 11 November 2024 appear to arise from an audit report obtained from The Viewer software. There is no indication of there being any review of hard copy medical records held by Kingaroy Hospital.

• [126] The decision letter makes reference to there being a 'desktop review' of both the HBCIS and EDIS records in relation to the two identified patients. The decision letter does not confirm what the 'desktop review' of those records entailed. There is no evidence available to me that the review extended to a review of any hard copy medical records that the Kingaroy Hospital may hold in relation to the two identified patients.

• [127] This is relevant to the question of whether the evidence available to the Decision-Maker had the requisite "clarity" or "cogency" in order to induce, on the balance of probabilities, an actual persuasion of the Decision-Maker's mind as to the existence of the matters grounding the substantiation of the allegation.[27]

• [128] The issue of whether discharge summaries are provided to Kingaroy Hospital upon a maternity patient being discharged back to the care of Kingaroy Hospital is directly relevant to the second issue identified in paragraph [119] above.

• [129] There appears to be a fundamental disagreement between the parties regarding the extent to which discharge summaries are provided to the returning facility. In the decision letter dated 27 March 2025, the Decision-Maker rejected the Appellant's response that she was required to review The Viewer for patient births at alternative facilities and for subsequent follow-up care requirements.

• [130] In the initial show cause notice from Ms Pippos dated 11 November 2024, there was no mention of the provision of discharge summaries to Kingaroy Hospital from other hospitals or medical facilities. This was first raised in the disciplinary finding decision dated 27 March 2025, apparently in response to the Appellant's explanation as to why she may need to access information regarding patient births at alternative facilities.

• [131] The Decision-Maker noted that it is her understanding that the patient discharge summaries are provided to the returning facility, sometimes accompanied by a telephone call or email correspondence detailing the specific follow-up care requirements. The Decision-Maker did not clarify the basis of her understanding or the source of information which grounded that understanding regarding the discharge summaries. On the basis of that understanding, the Decision-Maker concluded that she did not foresee a need for the Appellant to monitor patients via The Viewer because she would receive a notification where required.

• [132] In the Appellant's reply submissions (and in the submissions from the Appellant dated 2 April 2025), the Appellant disagrees with that factual finding and instead contends that discharge summaries are not provided to the returning facility in the form of facsimile or email. The Appellant submits that such an approach is no longer custom nor practice, and nor is a telephone call received from the transferring facility. The Appellant contends that The Viewer is used to monitor where the patients have birthed (elsewhere) and to organise home visits, and other testing.

• [133] I consider this to be a significant factual dispute which will require additional investigation by the Respondent and positive findings of fact being made to confirm whether the version of the Respondent or the Appellant is correct. If the Appellant's version is correct, this may in fact provide a valid explanation for her accessing the relevant patient medical records for the purposes she has identified in her submissions.

• [134] In the Appellant's Reply Submissions she notes that the 'EDS and The Viewer' policy document notes that users are asked to remember appropriate access, and that the use of patient information is routinely associated with:

• patients in our direct care (or administrative support to do this)
• patients we are asked to consult on, either directly or remotely (e.g., clinical advice across facilities).

• [135] In the Reply Submissions, the Appellant goes on to contend that the following tasks that the Appellant performed all aligned to The Viewer policy:

• Following up on transferred patients as they may be returning to our antenatal clinic if not birthed, or postnatal for home visits - a_dministrative support_;

• Pathology results - direct care and administrative support.

• Appointments - did they attend or not attend - administrative support;

• Phone calls from other hospitals regarding transfers in, receiving women booked at Kingaroy Hospital at their facility - administrative support;

• Phone calls from ED to consult on patient - direct care and administrative support;
• Unbooked patients - direct care;

• Perinatal data audits - administrative support;

• Phone calls from child safety regarding women to see if they had birthed at Kingaroy - administrative support;

• Keeping birth book up to date by checking women who had birthed at other hospitals due to being high risk - administrative support.

• [136] In the submission dated 2 April 2025, and subsequently in the submissions attached as a schedule to the Appeal Notice, the Appellant has raised a number of matters that were not before the Decision-Maker at the time that the decision was made about the disciplinary findings on 27 March 2025.

• [137] In summary, the additional matters or information supplied by the Appellant in the submission dated 2 April 2025 were:

• General patient outliers would be admitted under 'general' and not 'maternity' in HBCIS because their admission source was different.

• That the Appellant was expected to see patients in the Emergency Department as an additional staff member on redeployment (as a registered nurse) to assist with busy periods in the hospital.

• Specific identification of the two doctors whom the Appellant suggested may have requested her to access The Viewer to view patient medical records.

• A possible specific explanation for accessing the medical records of patient KNH 057.../SCUH 1179... .

• [138] Regarding the third dot-point about the identification of the two doctors, the Respondent in its submission contends that it was incumbent upon the Appellant to provide this information if she believed this to be relevant to the Decision-Maker's consideration. This may well be correct, however:

• it was equally open to the Decision-Maker to request further information from the Appellant as to the identity of the doctors involved; and

• this does not diminish the fact that this possible explanation has not been properly investigated or explored by the Respondent.

• [139] In relation to the second dot point regarding the Appellant seeing patients in the Emergency Department as a registered nurse the Respondent concedes that due to the late provision of this information by the Appellant, this was also not considered by the Decision-Maker in the disciplinary finding decision.

• [140] Clause 9.4(c) of the Discipline Directive requires that 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. As noted above, 'balance of probabilities' is defined in the Discipline Directive and reflects the Briginshaw[28] principles:

Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:

• 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

• [141] The relevant standard of proof for this appeal remains the civil standard of 'balance of probabilities' or 'reasonable satisfaction', however, if the Briginshaw principle is applied, the "clarity" or "cogency" of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations.[29]

• [142] As noted in the Appellant's submissions, Vice President O'Connor provided further insight into the application of the Briginshaw principle in workplace investigations in the context of an unfair dismissal application in White v State of Queensland (Central Queensland Hospital and Health Service)[30]:

[57] Having regard to the seriousness of the allegations and the significant consequences for the applicant's employment, the more anxious the decision-maker should have been to ensure she attained the necessary standard of satisfaction that the facts in dispute were more probable than not to exist. The evidence before the primary decision-maker was of such a kind that the standard of "reasonable satisfaction" could not be reached.

• [143] In Malcolm v State of Queensland (Queensland Health),[31] Industrial Commissioner Caddie in determining an appeal relating to a public sector disciplinary process made the following observations which appear to apply with equal force to the present appeal:

[189] The seriousness of the alleged conduct and the seriousness of the likely outcomes flowing from the decision places an onus on the decision-maker to undertake a rigorous evidence - based process in making decisions on the balance of probabilities. Relying on "material made available" to the decision-maker - without due consideration of material which the decision-maker is aware may be missing but is critical to the decision and readily attainable - does not and should not satisfy those requirements for the reasons outlined above.[32]

• [144] For the reasons set out in paragraphs [86] to [139] above, I am not satisfied that the evidence before the Decision-Maker, nor the analysis of that evidence by the Decision-Maker was sufficient to demonstrate 'clear and cogent proof'[33] supporting an 'actual persuasion of the mind as to the existence of the matters of complaint'[34] given the serious nature of the allegation raised against the Appellant.

• [145] For the various reasons set out above, I am not satisfied that the Decision-Maker could safely reach the determination that the allegation had been substantiated. I therefore find that the decision to substantiate the allegation was not fair and reasonable.

• [146] On the basis of the substantiated allegation, the decision-maker determined that the Appellant had contravened s 91(1)(b) of the PS Act, on the grounds of misconduct.

• [147] Section 91(1)(b) of the PS Act provides that a public service employee may be disciplined if the chief executive is reasonably satisfied that the employee is guilty of misconduct.

• [148] "Misconduct" is defined in s 91(5) of the PS Act as:

inappropriate or improper conduct in an official capacity or inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public sector entity in which the employee is employed.

• [149] The issue of what constitutes misconduct for the purposes of the PS Act was considered by Deputy President Merrell in Coleman v State of Queensland (Department of Education), ('Coleman').[35] In that matter, his Honour noted that the PS Act does not provide any guidance as to what is meant by 'inappropriate' or 'improper' conduct within the definition of misconduct in s 91(5).

• [150] After considering the observations of Justice Daubney in Mathieu v Higgins,[36] his Honour in Coleman provided the following commentary on the meaning of 'misconduct' in the former iteration of the PS Act:

In my view, the definition of 'misconduct' contained in s 187(4)(a) contemplates a deliberate departure from accepted standards, serious negligence to the point of indifference, or an abuse of the privilege and confidence enjoyed by a public service employee.[37]

• [151] In light of my finding that the Decision-Maker's determination that the allegation had been substantiated was not fair and reasonable, the finding of "misconduct" made against the Appellant must also be set aside.

• [152] For the reasons given above, the decision under appeal is not fair and reasonable. I am returning the matter to the Decision-Maker with a copy of the decision on appeal and a direction that a fresh consideration of the matter be undertaken in accordance with these reasons for decision.

• [153] To remove any doubt, I will revoke the stay of the disciplinary decision I ordered on 24 April 2025.

• [154] For those reasons, I make the following orders:

1. The decision appealed against is set aside.

2. The matter is returned to the Decision-Maker for reconsideration within 40 days following the publication of this decision.

• review the patient records for the patients identified in this decision; and

• provide any further evidence or submissions in response to the show cause notice in relation to those identified patients.

• The submissions provided by the Appellant in this appeal and any new evidence or submissions provided by the Appellant;

• other information available to the Decision-Maker including any hard copy medical records relating to the identified patients held by the Kingaroy Hospital; and

• any other information the Decision-Maker deems appropriate.

[1] Appeal Notice filed 17 April 2025: Appendix B - First Show Cause Notice dated 11 November 2024.

[2] Respondent's submissions filed 22 May 2025, Attachment 1.

[3] Appeal Notice filed 17 April 2025: Appendix A - Disciplinary Finding Decision dated 27 March 2025.

[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).

[7] Page v John Thompson and Lesley Dwyer, As Chief Executive Officer, West Moreton Hospital and Health Service [2014] QSC 252, [60]-[61] (Byrne SJA).

[8] Section 32(4)(b) of the Public Sector Act 2022 (Qld); see also O'Hearn v State of Queensland (Queensland Health) [2023] QIRC 283, [31] (Industrial Commissioner Power).

[9] The patient numbers have been partially redacted to preserve the anonymity of the patients pursuant to r97(3)(b) of the Industrial Relations (Tribunals) Rules 2011. The Commission is satisfied that these redactions do not affect the essence of the decision.

[10] [1938] HCA 34; (1938) 60 CLR 336.

[12] [2020] QIRC 032.

[14] [2021] QIRC 116.

[15] [2020] QIRC 67.

[16] Australian Workers' Union of Employees, Queensland v Gold Coast Hospital [2020] QIRC 67, [36].

[17] [2022] QIRC 16.

[18] Ibid, at [25], citing Pope v Lawler [1996] FCA 1446.

[19] Colebourne (n 17) at [21]-[22] and [25].

[20] Ibid, at [23] citing Goodall v State of Queensland (Unreported decision of the 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.

[21] The patient numbers have been partially redacted to preserve the anonymity of the patients pursuant to r97(3)(b) of the Industrial Relations (Tribunals) Rules 2011. The Commission is satisfied that these redactions do not affect the essence of the decision.

[22] Respondent's submissions filed 22 May 2025, [14]h.

[23] [2025] QIRC 146, [110].

[24] [2015] QSC 370.

[27] Briginshaw v Briginshaw [1938] HCA 34; Refjek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521.

[28] [1938] HCA 34; [1938] 60 CLR 336.

[29] Ibid at 361-363; Refjek v McElroy [1965] HCA 46; (1965) 112 CLR 517 at 521.

[30] [2017] QIRC 041, [57], per O'Connor VP.

[33] Mourilyan v James Hardie [2010] FWA 9672, [105].

[34] Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336, 361-363; Refjek v McElroy [1965] HCA 46; (1965) 112 CLR 517, 521.

[35] [2020] QIRC 032.

[36] [2008] QSC 209.

[37] Coleman v State of Queensland (Department of Education) [2020] QIRC 032, [62] per Merrell DP.