Williams v State of Queensland

Public Sector Act 2022 (Qld) ss 12, 91, 92(1), 93, 101

Nurses and Midwives (Queensland Health) Award 2015

Industrial Relations Act 2016 (Qld) ss 562B(3), 562C(1)

Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245

Gilmour v Waddell & Ors [2019] QSC 170

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

Pillai v Messiter (No 2) (1989) 16 NSWLR 197

State of Queensland (Queensland Health) v Nield [2025] ICQ 021

[1] Ms Dulcie Williams is employed by the State of Queensland through the Metro South Hospital and Health Service.

[2] Ms Williams is employed as a part-time Enrolled Nurse ('EN'), at Redland Residential Care ('RRC'), Community and Oral Health Services ('COHS'), Metro South Hospital and Health Service ('the Service') and is a public sector employee pursuant to section 12 of the Public Sector Act 2022 (Qld) ('PS Act').

[3] On 26 May 2023,[1] Ms Lesley English ('Ms English'), Executive Director, Community and Oral Health, informed Ms Williams of her decision, pursuant to section 92(1) of the PS Act, to impose the following disciplinary action:

a permanent reduction of classification and a consequential change of duties.

[4] Ms Williams is now appealing the disciplinary penalty decision.[2]

[5] This appeal must be decided by reviewing the decision appealed against.[3] As the word review has no settled meaning, it must take its meaning from the context in which it appears.[4] The appeal is not by way of a rehearing,[5] but involves a review of the decision arrived at and the processes by which it was made.

[6] The stated purpose of such an appeal is for the Commission to determine whether the decision appealed against was fair and reasonable.[6]

[7] The issue for my determination therefore, is whether the decision by Ms English to impose the disciplinary action of a permanent reduction of classification and a consequential change of duties, was fair and reasonable.

[8] Findings which are reasonably open to Ms English are not expected to be disturbed on appeal.

[9] Ms Williams is employed as an Enrolled Nurse - NG3, a classification level contained within the Nurses and Midwives (Queensland Health) Award 2015 ('the Award'). An abridged version of the classification structure within the Award, current as at the time of the filing of this Appeal, is attached to this decision.[7]

[10] On 20 March 2023, in the wake of an investigation where Ms Williams was provided with an opportunity to show cause as to why disciplinary findings should not be made against her, a decision was issued by Ms English, where the following allegations were substantiated:[8]

On 24 November 2022, you withheld food and water from resident UR575704 and instructed other staff to not provide food and water to resident UR575704.

On 24 November 2022, you failed to show courtesy and respect to resident UR575704 when you referred to him as a "crazy man".

On 25 November 2022, you withheld water from resident UR575704 and instructed other staff to not provide water to resident UR575704.

On 25 November 2022, you failed to follow a reasonable direction to move away from resident UR575704 as requested by the Registered Nurse on shift.

[11] In relation to Allegation One and Allegation Three, Ms English determined Ms Williams was guilty of misconduct, pursuant to section 91(1)(b) of the PS Act, in circumstances where Ms Williams was found to have withheld direct care and service from a resident.

[12] In respect of Allegation Four, Ms English determined Ms Williams had failed to comply with Clause 4.1(d) of the Public Service Code of Conduct when she did not comply with a reasonable and lawful direction from a Registered Nurse and contravened the Enrolled Nurse Standards for Practice as issued by the Nursing and Midwifery Board.[9]

[13] For the remaining Allegations, Ms English concluded Ms Williams had contravened, without reasonable excuse, Clause 1.5(a) of the Public Service Code of Conduct, namely:

1.5 Demonstrate a high standard of workplace behaviour and personal conduct

We have a responsibility to always conduct and present ourselves in a professional manner, and demonstrate respect for all persons, whether fellow employees, clients or members of the public.

1. treat co-workers, clients and members of the public with courtesy and respect, be appropriate in our relationships with them, and recognise that others have the right to hold views which may differ from our own.

[14] Allegation Five was only partially substantiated on the basis that Ms English was unable to determine whether Ms Williams refused to leave the resident's room, as alleged in the original particulars of the allegation.[10]

[15] In respect of the disciplinary penalty, Ms English proposed termination of employment and provided Ms Williams with an opportunity to respond to the proposed penalty.[11]

[16] Within the same correspondence, Ms Williams was advised of her appeal rights and provided with guidance about how to appeal Ms English's decision. Ms Williams was further advised that her alternative duties arrangement would continue in accordance with s 101 of the PS Act.[12]

[17] Ms Williams did not appeal Ms English's decision to substantiate the allegations.

[18] On 4 May 2023, the Queensland Nurses and Midwives Union ('the QNMU') sent correspondence to Ms English on behalf of Ms Williams responding to the proposed disciplinary action. The response identified reasons why Ms Williams should not be dismissed and urged Ms English to consider all potential alternatives prior to making a decision about whether to terminate Ms Williams' employment.[13]

[19] In correspondence dated 26 May 2023, Ms English set aside the proposed penalty of termination and instead, imposed an alternative penalty of reduction in classification and a consequential change of duties to an Operational Services Officer at Bayside Health Service, MSH ('the Decision').[14]

[20] On 29 May 2023, the Australian Health Practitioner Regulatory Authority ('AHPRA') imposed conditions on Ms Williams in relation to her registration and practice as an Enrolled Nurse, namely:[15]

(6) attending for mentoring in relation to the above areas of education.

[21] Section 91 of the PS Act sets out the circumstances in which a chief executive may discipline an employee including:

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

(d) contravened, without reasonable excuse, a direction given to the employee as a .......public sector employee by a responsible person; or

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

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

[22] Examples of disciplinary action which can be taken by a Chief Executive after grounds for discipline have been established are set out in s 92 of the PS Act as follows:

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

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

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

(g) if a penalty is imposed, a direction that the amount of the penalty be deducted .........from the employee's periodic remuneration payments;

[23] Directive 05/23: Discipline ('Discipline Directive') came into effect on 1 March 2023. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.[16]

[24] Clause 5.3 of the Discipline Directive provides:

Chapter 3, part 8, division 3 of the Act, and this directive establishes the standard process to be adopted in discipline matters and does not limit a chief executive's ability referenced in chapter 3, part 11 of the Act to terminate a public sector employee's employment under common law, including summarily, where an employee has engaged in serious misconduct, or by operation of law.

[25] Clauses 9.5 and 9.6 of the Disciplinary Directive outlines the show cause process for proposed disciplinary action, namely:

Show cause process for proposed disciplinary action

(a) the chief executive is to provide the employee with written details of the proposed disciplinary action and invite the employee to show cause why the proposed disciplinary action should not be taken (a show cause notice on disciplinary action)

(c) the disciplinary action the chief executive may propose is not limited to the examples of disciplinary action listed in section 92 of the Act

(d) in proposing appropriate and proportionate disciplinary action, the chief executive should consider:

(i) the seriousness of the disciplinary finding

(ii) the employee's classification level and/or expected level of awareness about their performance or conduct obligations

(iii) whether extenuating or mitigating circumstances applied to the employee's actions

(iv) the employee's overall work record including previous management interventions and/or disciplinary proceedings

(v) the employee's explanation (if any)

(vi) the degree of risk to the health and safety of employees, customers and members of the public

(vii) the impact on the employee's ability to perform the duties of their position

(viii) the employee's potential for modified behaviour in the work unit or elsewhere

(ix) the impact a financial penalty may have on the employee

(x) the cumulative impact that a reduction in classification and/or pay-point may have on the employee

(xi) the likely impact the disciplinary action will have on public and customer confidence in the unit/entity and its proportionality to the gravity of the disciplinary finding

(a) the chief executive must review all relevant material, including any submissions from the employee in response to a show cause notice, and make a final decision on the disciplinary action to be taken

(c) the chief executive may decide to impose disciplinary action different to the disciplinary action proposed in the show cause notice on disciplinary action, provided that:

(i) the revised disciplinary action is objectively less onerous than the original action proposed, or

(ii) the employee is given a further opportunity to comment on the appropriateness of the new proposed action, before a final decision on the disciplinary action is made and communicated to the employee, or

(iii) the employee has suggested the disciplinary action as an appropriate alternative penalty

[26] The Aged Care Act 2024 (Cth) and the Aged Care Code of Conduct establish a statutory framework directed to safeguarding the rights, safety, and dignity of individuals receiving funded aged care services, and to imposing enforceable standards of conduct on registered providers, aged care workers of registered providers, and responsible persons of registered providers.[17]

[27] Section 5 of the Aged Care Act 2024 (Cth) provides the Objects of the Act, which relevantly include:

(a) in conjunction with other laws, give effect to Australia's obligations under the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of Persons with Disabilities; and

(b) provide a forward‑looking aged care system that is designed to:

(i) uphold the rights of individuals under the Statement of Rights; and

(ii) assist individuals accessing funded aged care services to live active, self‑determined and meaningful lives; and

(iii) ensure equitable access to, and flexible delivery of, funded aged care services that put older people first and take into account the needs of individuals, regardless of their location, background and life experience; and

(iv) support individuals accessing funded aged care services to effectively participate in society on an equal basis with others, thereby promoting positive community attitudes to ageing; and

(v) facilitate access to integrated services in other sectors where required; and

(d) ensure individuals accessing funded aged care services are free from mistreatment, neglect and harm from poor quality or unsafe care; and

[28] Compliance with the Aged Care Code of Conduct is required by s 14 of the Aged Care Act 2024 (Cth), which sets out:[18]

The rules may prescribe requirements relating to the conduct of the following:

(a) registered providers;

(b) aged care workers of registered providers;

(c) responsible persons of registered providers.

[29] Pursuant to the Aged Care Rules 2025, made under the Aged Care Act 2024 (Cth), compliance with the Aged Care Code of Conduct requires adherence to eight prescribed standards of behaviour, namely:[19]

When delivering funded aged care services to individuals, I must:

(a) act with respect for individuals' rights to freedom of expression, self-determination and decision-making in accordance with applicable laws and conventions; and

(b) act in a way that treats individuals with dignity and respect, and values their diversity; and

(c) act with respect for the privacy of individuals; and

(d) deliver funded aged care services in a safe and competent manner, with care and skill; and

(e) act with integrity, honesty and transparency; and

(f) promptly take steps to raise and act on concerns about matters that may impact the quality and safety of funded aged care services; and

(g) deliver funded aged care services free from:

(i) all forms of violence, discrimination, exploitation, neglect and abuse; and

(ii) sexual misconduct; and

(h) take all reasonable steps to prevent and respond to:

(i) all forms of violence, discrimination, exploitation, neglect and abuse; and

(ii) sexual misconduct.

[30] Further, the Enrolled Nurse Standards for Practice are the core practice standards that provide the framework for assessing enrolled nurse practice. These standards are used by the Nursing and Midwifery Board of Australia and relevant tribunals or courts to assess professional conduct or matters relating to notifications.[20]

[31] Relevantly, Standard 1, Standard 2 and Standard 6 respectively provide:[21]

Functions in accordance with the law policies and procedures affecting EN practice

Practises nursing in a way that ensures the rights, confidentiality, dignity and respect of people are upheld

Provides skilled and timely care to people whilst promoting their independence and involvement in care decision-making.

What Decisions can an Industrial Commissioner make?

[32] In deciding this appeal, s 562C(1) of the IR Act provides that I may:

(a) confirm the decision appealed against; or

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

(c) set the decision aside and return it to the decision-maker with a copy of the decision on appeal and any directions considered appropriate.

Appeal Ground One - The decision on penalty is unfair and unreasonable

[33] Ms Williams contends that the disciplinary action of a permanent reduction of classification and consequential change of duties is unfair and unreasonable because it is disproportionate to the substantiated allegations.[22]

[34] In support of this ground of appeal, Ms Williams submits that the substantiated misconduct did not result in harm to the resident. Furthermore, Ms Williams submits the conduct was borne of frustration, rather than malice or a lack of care, and was not a calculated or deliberate decision to deprive the resident of care.[23]

Failure to properly weigh service record and prior conduct

[35] Ms Williams submits that the Respondent did not sufficiently consider her eight years of unblemished service as an Enrolled Nurse, including that she has no prior disciplinary history and no history of informal disciplinary action.[24]

[36] Ms Williams contends that the decision is unfair and/or unreasonable because insufficient weight was afforded to her personal circumstances, including significant stressors during 2022. Ms Williams asserts that she provided evidence of mitigating factors which were not considered by Ms English, including; (1) a workplace injury in March 2022 affecting confidence and self-esteem; and (2) bereavements, grief and anxiety said to have contributed to a decline in professional communication at or around the relevant time.[25]

[37] Ms Williams relies on her expressions of remorse during the show cause process and contends that her responses demonstrate an understanding that it was unacceptable to withhold care from residents, to describe residents in derogatory terms, and to fail to comply with instructions from more senior nurses. It is further submitted that she is unlikely to engage in similar conduct in the future.[26]

Appeal Ground Two - The disciplinary penalty is unfair and unreasonable in that it will have a permanent detrimental impact on Ms Williams' career as an Enrolled Nurse

[38] Ms Williams submits that the penalty is unfair and unreasonable because it will render her unable to comply with conditions imposed by the AHPRA in respect of her registration and practice as an Enrolled Nurse, including requirements relating to mentoring (six sessions over a two-month period) and education.[27]

Appeal Ground Three - The disciplinary penalty is unavailable to the Respondent

Characterisation of the penalty as a reduction in classification

[39] While Ms Williams acknowledges that a reduction in classification level and consequential change of duties is a disciplinary action contemplated by s 92(1)(b) of the PS Act,[28] she contends that, properly characterised, the penalty imposed is not a 'reduction in classification' because she is permanently employed as an Enrolled Nurse (NG3), which is a classification level within the Nurses and Midwives (Queensland Health) Award 2015.[29]

[40] Ms Williams submits that the decision does not reduce her classification within that Award's classification structure, but instead removes her from the Award classification structure entirely. It is contended that s 92(1)(b) does not contemplate such an outcome and, on that basis, the disciplinary action imposed was not available to the Respondent.[30]

Appeal Ground One - The decision on penalty is unfair and unreasonable

Characterisation of the conduct and "misconduct" threshold

[41] Ms Williams advances submissions, including by reference to Pillai v Messiter (No 2),[31] to the effect that the threshold for "misconduct" is high and requires more than mere professional incompetence. She contends that the resident's behaviour, the absence of established deprivation of food and water beyond a brief period, and the overall context, are relevant in respect of an assessment of the seriousness of the allegations and the proposed penalty.[32]

[42] Ms Williams submits the resident was diagnosed with dementia and was difficult to manage, that the resident refused care from Ms Williams and that it was undisputed she attempted to provide food and/or water at least once, before any alleged withholding.[33]

[43] Ms Williams further contends the provocative and frustrating nature of the resident's behaviour was not considered in assessing the appropriate penalty and submits that a reasonable person in her position would likely have felt upset or exasperated.[34]

[44] The Respondent submits that withholding food and water, and instructing others to do so, extended beyond negligence or incompetency, and instead constituted a deliberate departure from acceptable standards, particularly in the context of caring for elderly and vulnerable residents in state operated residential care homes.[35]

[45] The Respondent further submits that Ms Williams' reliance on "staff splitting" demonstrates her conduct was, to some extent, intentional and planned, and contends there was no evidence the resident possessed the executive function required to engage in intentional staff splitting.[36]

[46] The Respondent contends the principles identified in Pillai v Messiter are satisfied and that the categorisation of the conduct as misconduct was warranted.[37]

[47] Ms Williams maintains that, while the written decision on penalty describes several matters said to have been considered, it does not identify consideration of her disciplinary history (or absence thereof) or her disclosed personal circumstances.[38]

[48] Ms Williams contends the Respondent did not have sufficient regard to her overall work record and potential for modified behaviour and did not take into account her assertions about her eight years of unblemished service and the absence of prior performance or conduct concerns.[39]

[49] Ms Williams further submits the decision does not identify consideration of the particular extenuating or mitigating circumstances raised in her response to the proposed termination, including bereavements, a work injury, and grief/anxiety said to have affected her wellbeing and professional communication.[40]

[50] In response, the Respondent contends that it cannot reasonably be maintained that Ms English failed to consider the extenuating factors to an extent that would render the penalty decision unfair or unreasonable.

[51] It maintains those matters were expressly considered by Ms English, but that the conduct was of such seriousness that the Respondent's trust and confidence in Ms Williams' capacity to continue caring for patients was lost.[41]

[52] The Respondent further submits Ms English weighed the mitigating and extenuating factors highlighted by Ms Williams during the show cause process against the seriousness of the conduct. Although those factors were considered compelling, Ms English nevertheless concluded they were insufficient to outweigh the seriousness of the substantiated conduct.[42]

[53] The Respondent argues the decision to vacate termination and impose a lesser disciplinary outcome demonstrates consideration of Ms Williams' circumstances (including the financial impact of termination) and further demonstrates a recognition of Ms Williams' ability to modify her behaviour, albeit only in a largely non-patient-facing role.[43]

[54] The Respondent further submits Ms English had specific regard to the challenging nature and behaviour of residents with cognitive disabilities and mental health concerns, but nevertheless considered the substantiated conduct sufficiently serious to warrant a serious disciplinary outcome.[44]

Proportionality: whether the penalty is disproportionate to the substantiated conduct

[55] Ms Williams submits the imposed penalty (a permanent reduction of classification and consequential change of duties) is disproportionate to the substantiated allegations and therefore unfair and unreasonable.[45]

[56] Ms Williams further submits the substantiated misconduct did not result in harm to the resident, and that the conduct was borne of frustration rather than malice or lack of care, and was not a calculated or deliberate decision to deprive the resident of care.[46]

[57] Ms Williams relies upon her expressed remorse, asserted insight into the unacceptability of withholding care and using disparaging language, and a low risk of recurrence, as matters bearing upon proportionality.[47]

[58] The Respondent maintains the relevant inquiry on appeal concerns whether the decision on penalty lacks intelligent justification in the circumstances,[48] and contends the decision was fair and reasonable.[49]

[59] The Respondent submits that, given the seriousness of the substantiated conduct, a serious penalty which ensures Ms Williams is not permitted to return to a position involving patient care was reasonably open, fair and reasonable, and should not be disturbed.[50]

Appeal Ground Two - The disciplinary penalty is unfair and unreasonable in that it will have a permanent detrimental impact on Ms Williams' career as an Enrolled Nurse

[60] While Ms Williams initially submitted the disciplinary outcome would prevent compliance with conditions imposed by AHPRA, including mentoring sessions and education requirements, she has since taken steps to comply with the AHPRA conditions.[51]

[61] Ms Williams maintains however that, if employed as an Operational Support Officer (OO2) she will be unable to satisfy AHPRA registration requirements said to include recency of practice and continuing professional development for an Enrolled Nurse, and that the practical effect will be the loss of her profession.[52]

[62] Ms Williams further submits that AHPRA's response to the referral was to impose education (and related reflective practice) conditions concerning ethics, vulnerable patients, elderly care standards, managing challenging interactions, and communication. Ms Williams contends it is appropriate to have regard to AHPRA's professional standards perspective when assessing the fairness and reasonableness of the disciplinary action.[53]

[63] The Respondent submits the AHPRA conditions are a separate matter to employment and the Service is not responsible for providing Ms Williams with an opportunity to satisfy the conditions placed on her registration.[54]

[64] The Respondent argues that in any event, the AHPRA conditions do not require Ms Williams to undertake any action in the course of duties as an Enrolled Nurse at Redland Residential Care. Furthermore, the disciplinary outcome does not prevent her from obtaining employment or engaging in mentoring outside the Service.[55]

[65] The Respondent further submits it understands Ms Williams has independently arranged external training and an external mentor approved by AHPRA, and therefore the disciplinary decision has had no impact on her ability to address the conditions.[56]

[66] In reply, Ms Williams submits it is obvious that if she is unable to work as an EN in her employment with the Respondent, she will be unable to comply with EN registration requirements (including recency of practice) unless she obtains alternative employment.[57]

Discretion to admit further evidence in disciplinary-action appeals

[67] Ms Williams refers to the Commission's power to decide the appeal having regard to the evidence available to Ms English, but to allow other evidence if appropriate, and submits that a penalty with the practical consequence of likely loss of registration is unfair and unreasonable, particularly given the absence of prior disciplinary history.[58]

[68] In reply, the Respondent submits Ms Williams has provided no evidence that the disciplinary decision will have a permanent detrimental impact on her career as an Enrolled Nurse.[59]

Practical consequences and suitability for Operation Support Officer role

[69] Ms Williams submits she has never worked as an Operational Support Officer (OO2), and that the Respondent did not undertake any occupational health and safety or fitness-for-duty assessments to determine whether she is capable of performing the requirements of that role.[60]

[70] In further reply submissions, the Respondent contends the Operational Support Officer (OO2) role is entry-level with no mandatory skills or experience.[61] It asserts that Ms Williams would be comprehensively oriented and trained during paid time and that the physical requirements (including pushing, pulling, reaching, bending and kneeling) are not substantially different from the physical demands of Ms Williams' role as an Enrolled Nurse.[62]

Appeal Ground Three - The disciplinary penalty is unavailable to the Respondent

[71] Ms Williams submits the Respondent expressly described the disciplinary action using the statutory wording of s 92(1)(b) (reduction in classification and consequential change in duties), but contends the imposed action is not, in substance, a reduction in classification, and instead removes her from the Nursing Award and places her within a different classification structure.[63]

[72] The Respondent disputes Ms Williams' interpretation and maintains the penalty was available to Ms English, submitting that disciplinary action of a reduction of classification and change of duties is not limited to movement within a single classification structure in organisations where multiple industrial instruments and classification systems operate.[64]

[73] In further reply submissions, the Respondent contends s 92(1) provides a non-exhaustive list of disciplinary action, and that it has power (including under s 93) to impose disciplinary action it considers reasonable, including an implied power to allocate an employee to a different role (and within a different classification structure).[65]

[74] The Respondent further submits that a change of duties to the Operational Support Officer (OO2) role is essentially a transfer between one classification system to another, and a reduction in classification. It contends that the term "classification level" should not be construed narrowly as confined to levels within a single classification structure under the relevant industrial instrument.[66]

[75] The Respondent relies upon cl 9.6(c)(i) of the Discipline Directive, submitting that where a disciplinary penalty has been proposed, a different penalty may be imposed where it is objectively less onerous than the original proposed action, and that a further opportunity to respond is not required in those circumstances.[67]

[76] The Respondent maintains that a reduction in classification and change of duties is objectively less onerous than termination.[68]

[77] In reply, Ms Williams disagrees, contending that unless she obtains employment elsewhere, she cannot comply with AHPRA requirements if she cannot work as an EN.[69]

[78] The Respondent's further reply maintains the penalty is objectively less onerous than termination, emphasising that it ensures Ms Williams maintains permanent public sector employment and carries a lesser impact, particularly given Ms Williams' stated concern that loss of employment may result in homelessness.[70]

[79] The Respondent acknowledges the action would have been better characterised as a redeployment, but submits this was an administrative error that does not remove

Ms English's authority to impose the action.[71]

[80] Ms Williams rejects that characterisation, submitting the disciplinary action was a fundamental alteration of her terms and conditions of employment and classification.[72]

[81] Ms Williams further submits that the statutory words "reduction in classification and subsequent change in duties" cannot logically be interpreted to authorise the practical outcome imposed, because it removes her from the Nurses and Midwives (Queensland Health) Award 2015 classification structure and places her within a separate classification stream.[73]

[82] Ms Williams argues the proposed role sits within a separate classification and further contends that, if Parliament intended "reduction in classification" to include movement to another classification system, it would have said so.[74]

[83] Ms Williams further submits that, even if the Respondent's "redeployment" characterisation were accepted, the practical outcome is not a redeployment within the statutory definition.[75]

Availability of alternatives within the nursing stream; training/implementation issues

[84] The Respondent submits there were no redeployment options reasonably available within the nursing stream that would satisfy the requirement that Ms Williams not be engaged in patient care, maintaining she cannot be entrusted in providing direct care to patients and that continued employment is only viable in alternative streams.[76]

[85] Ms Williams submits the Operational Support Officer (OO2) position is one for which she has no skills, training or experience, and that she has not been assessed for fitness or suitability.[77]

[86] The Respondent submits the Operational Support Officer (OO2) role is entry-level with no mandatory skills or experience, and that Ms Williams would be comprehensively oriented and trained during paid time.[78]

[87] The basis of the appeal relates to Ms English's decision to impose a disciplinary decision of a permanent reduction of classification and a consequential change of duties, in circumstances where an earlier proposed penalty of termination was set aside by

[88] Ms Williams advances three grounds of appeal. In summary, she contends that the disciplinary outcome was unfair and unreasonable because Ms English failed to properly consider matters required by the Discipline Directive and imposed a penalty disproportionate to the substantiated conduct; that the outcome will have a permanent detrimental impact on her career as an EN, including by affecting her ability to comply with AHPRA conditions; and that, in any event, the disciplinary action imposed was not available to the Respondent under the PS Act.

Preliminary issue - Whether substantiated Allegations One and Three were appropriately characterised as "misconduct".

[89] Before considering the three grounds of appeal, I will first address the preliminary issue of whether substantiated Allegations One and Three were appropriately characterised as "misconduct".

[90] The disciplinary ground relied upon for Allegations One and Three was "misconduct".

[91] The PS Act provides that a public sector employee may be disciplined if the employee is "guilty of misconduct",[79] and that "misconduct" includes "inappropriate or improper conduct in an official capacity".[80]

[92] In State of Queensland v Nield ('Nield'),[81] President Davis emphasised that the statutory phrase "inappropriate or improper conduct" is not confined by any closed list of examples, and the inquiry should not be approached as if "misconduct" requires proof of subjective awareness of wrongdoing in every case. His Honour emphasised that the examples drawn from earlier authorities are illustrative only and should not be elevated into an exhaustive test for "misconduct".[82]

[93] The President also noted that, depending upon the nature of the obligation and the seriousness of the breach, "the nature of the obligation and the nature of the breach may itself bespeak... misbehaviour" (including "a serious departure from accepted standards"),[83] and that a focus solely upon subjective knowledge may distract from the evaluative character of the statutory task.[84]

[94] That approach is apt here. The question is whether the conduct, when considered in its clinical and aged-care context, was properly assessed as "inappropriate or improper" in Ms Williams' official capacity as an EN.

The substantiated conduct (Allegations One and Three)

[95] The substantiated allegations which have been characterised by Ms English as misconduct, in summary, were:

• Allegation One: on 24 November 2022, Ms Williams withheld food and water from resident UR575704 and instructed other staff not to provide food and water to that resident.[85] The particulars included that Ms Williams was heard saying "no don't serve him... don't serve him", took a container of biscuits from another staff member while stating "don't serve him", and the resident was not provided afternoon tea. Ms Williams also refused to fill the resident's water jug when requested.[86]

• Allegation Three: on 25 November 2022, Ms Williams withheld water from the resident and instructed other staff not to provide water. The particulars were that a Registered Nurse overheard Ms Williams instruct another staff member, "do not give the resident in bed 14 [UR575704] a jug of water". When asked why, Ms Williams stated that she had given the resident a jug of water and he threw it out, and that he "needs to learn a lesson". When informed that water cannot be withheld from residents, Ms Williams stated that the resident "needs to learn he can't behave like this". It was further alleged that, when directed to stay away from the resident and work elsewhere in the unit, Ms Williams stated that the resident "has been behavioural [sic] all week".[87]

[96] Although Ms Williams denied the allegations in her initial show cause response, Ms English substantiated the allegations and, on that basis, determined that Allegations One and Three amounted to misconduct within s 91(5)(a) of the PS Act.[88]

[97] It is not in contention that, at the relevant times, Ms Williams was bound by the Enrolled Nurse Standards for Practice (including Standard 1, Standard 2 and Standard 6),[89] which require (relevantly) lawful and policy-compliant practice, maintenance of rights and dignity and respect, in addition to the provision of skilled and timely care.[90]

[98] The show cause materials also identified the Australian Government Aged Care Code of Conduct as relevant to the evaluation of the conduct, specifically noting that unacceptable behaviours of aged care workers include:[91]

punishing consumers by withdrawing services, unreasonably treating a consumer differently because of a personal characteristic (including withholding care delivery), and neglecting a consumer (including withholding care delivery, failing to attend or check on a consumer, or being reckless to the consequences of not following their care plan).

[99] Those matters are not determinative of the issue, but they supply the professional framework and context within which in an evaluation as to whether Ms Williams' conduct is "improper" in an official clinical capacity.

Conclusion on characterisation of conduct as misconduct

[100] In my view, the challenge with Ms Williams' submission in respect of the events underpinning Allegations One and Three is that it understates the inherent seriousness of withholding basic care (food, hydration, and attendance) from a residential aged-care consumer as a form of "lesson" or "punishment", and thereby fails to engage with the evaluative content of s 91(5)(a).[92]

[101] On the substantiated facts, the conduct was not merely suboptimal communication, discourtesy, or an isolated error in clinical judgment. Rather, it involved withholding (and directing others to withhold) elements of direct care as a response to frustration and perceived misbehaviour, in circumstances where Ms Williams occupied a position of trust and authority over a vulnerable resident.

[102] In my view, this is conduct which, by its nature, can reasonably be characterised as "inappropriate or improper" in an official capacity.[93]

[103] The show cause correspondence itself captured the essence of why, observing that frustration does not "give [an enrolled nurse] the right to withhold direct care and service or direct others to do so", and the conduct was treated as representing a failure of the obligations of trust inherent in the role.[94]

[104] When that reasoning is considered alongside the Aged Care Code's identification of "withdrawing services" as "punishment" and "neglect", and the Enrolled Nurse Standards for Practice requiring timely and respectful care, I am satisfied it was open to the decision maker to treat Allegations One and Three as misconduct for the purposes of

[105] This conclusion has informed, without displacing, the Commission's evaluation of whether the penalty ultimately imposed was fair and reasonable.

Appeal Ground One - The decision on penalty is unfair and unreasonable

Alleged failure to have regard to relevant considerations under the Discipline Directive

[106] The issue is whether Ms English failed to consider the matters required by Directive 05/23: Discipline, such that the penalty imposed was unfair or unreasonable.

[107] Ms Williams' central contention is that Ms English did not give adequate consideration to the matters required by Directive 05/23: Discipline, when determining an appropriate and proportionate disciplinary outcome. In that respect, Ms Williams submits that although Ms English listed several matters which were considered she did not specifically identify consideration of Ms Williams' work record, disciplinary history, or the extenuating personal circumstances described in her response.

[108] The Discipline Directive provides that, in proposing appropriate and proportionate disciplinary action, the chief executive should consider a range of factors. These factors include the seriousness of the disciplinary finding, the employee's classification level, whether extenuating or mitigating circumstances applied, the employee's overall work record (including prior interventions/discipline), the employee's explanation, the degree of risk to health and safety, the impact on the employee's ability to perform their duties, the employee's potential for modified behaviour, and the cumulative impact of a reduction in classification and/or pay-point.

[109] The Respondent submits it cannot reasonably be argued that Ms English failed to consider the extenuating factors to an extent that renders the decision unfair or unreasonable, pointing to the fact that termination was proposed but was ultimately vacated in favour of a lesser penalty.

[110] Having regard to the material, I am satisfied that the difficulty with Ms Williams' submission is that it treats the absence of express reference to particular considerations as establishing non-consideration.

[111] Ms English expressly recorded that she had "fully and carefully considered all of the information available", including Ms Williams' 4 May 2023 response, and had "taken into account all of the matters raised" in that response.[95] She further stated that the fact a particular matter was not specifically addressed in the letter did not mean it was not carefully considered.[96]

[112] I am not persuaded that the decision should be characterised as having omitted consideration of relevant matters merely because the reasons did not catalogue each of them individually.

[113] In my view, the reasons demonstrate sufficient consideration of many of the Directive's central factors, including seriousness, risk, and mitigating/extenuating matters.

[114] For example, Ms English referred to the seriousness of the substantiated allegations, the impact of Ms Williams' conduct on her ongoing ability to perform duties and the degree of risk to residents, patients, and the public. Ms English also expressly stated she had regard to mitigating or extenuating factors, noted remorse and willingness to undertake training, and (critically) had regard to Ms Williams' expressed financial fears should she become unemployed, in deciding to impose a reduction in classification/change of duties rather than termination.[97]

[115] On balance, I am satisfied that Ms English's reasons demonstrate adequate engagement with the relevant considerations at a level consistent with the Directive and the task of selecting a reasonable disciplinary outcome.

Proportionality of the penalty to the seriousness of the conduct and identified risk

[116] The issue is whether the penalty imposed was disproportionate to the seriousness of the substantiated conduct and the risk identified by Ms English.

[117] Ms Williams' submissions invite the conclusion that once proper regard is had to her asserted mitigating circumstances and work history, a materially lesser outcome (such as a reprimand and/or financial penalty) should have been imposed.

[118] First, for the reasons already given, the substantiated conduct in Allegations One and Three was properly characterised as misconduct. That conclusion is reinforced by the particulars of the conduct, including statements attributed to Ms Williams that the resident "needs to learn a lesson", together with the relevant professional and aged-care standards which identify withdrawing services as punishment or neglect.

[119] In my view, the penalty decision itself demonstrates a balancing exercise. Ms English formed the view that the substantiated allegations constituted misconduct of such seriousness that it may inhibit the organisation's ability to effectively serve residents, patients and the community if Ms Williams remained in a clinical, patient-facing role.

[120] However, the decision maker also weighed mitigating and extenuating factors against that seriousness. On that basis, the decision maker decided not to terminate Ms Williams' employment. Instead, a permanent reduction in classification and a change of duties were imposed.

[121] Ms English acknowledged the penalty "may have an impact" on Ms Williams from a professional standpoint but concluded that the misconduct was serious and must be dealt with accordingly, and that the penalty was proportionate to the conduct.[98]

[122] The flaw in Ms Williams' position is that it does not sufficiently grapple with the seriousness of the substantiated allegations and the risk-based rationale recorded by Ms English, nor the fact that although termination was the proposed penalty, it was not imposed.

[123] In those circumstances, and having regard to the Directive's emphasis on seriousness, risk, public confidence, and proportionality, I am satisfied the selection of a non-termination outcome, although undoubtedly distressing for Ms Williams, was open to Ms English given the nature of the substantiated allegations and the grounds for discipline.

[124] For these reasons, I am not persuaded that Appeal Ground One is made out.

Appeal Ground Two - The disciplinary penalty is unfair and unreasonable in that it will have a permanent detrimental impact on the Appellant's career as an Enrolled Nurse

Alleged inability to comply with AHPRA conditions and maintain registration

[125] The issue is whether the disciplinary outcome renders Ms Williams unable to comply with AHPRA conditions and maintain her nursing registration, such that the penalty is unfair or unreasonable.

[126] Ms Williams submits the penalty will have a permanent detrimental impact on her career because, if she is employed as an Operational Support Officer (OO2), she will be unable to comply with AHPRA conditions and broader nursing registration requirements.

[127] The Respondent disputes that proposition, submitting that the conditions imposed do not require Ms Williams to undertake the required mentoring/education in the course of duties as an Enrolled Nurse at Redland Residential Care, and that the disciplinary outcome does not prevent her from engaging in mentoring or obtaining employment elsewhere.

[128] The Respondent further submits Ms Williams has arranged external training courses and an external mentor approved by AHPRA, and that there is no evidence the decision will have a permanent detrimental impact on her career.

[129] In my view, the difficulty with Ms Williams' position is that it elevates her asserted registration obligations and conditions into a conclusion about detriment, notwithstanding the AHPRA conditions can be met externally and that Ms Williams has in fact arranged external mentoring and training.

[130] For these reasons, I am not persuaded that the penalty decision was rendered unfair or unreasonable by reason of the asserted AHPRA impacts.

Weighing of consequences against safety, trust, and public confidence considerations

[131] This appeal ground also raises the question as to whether Ms English gave insufficient weight to the personal and professional consequences for Ms Williams when balanced against safety, trust, and public confidence considerations identified in the Directive.

[132] The Discipline Directive expressly identifies (among relevant considerations) the degree of risk to health and safety, the impact on the employee's ability to perform duties, the cumulative impact of a reduction in classification, and the likely impact on public and customer confidence (and proportionality to the gravity of the finding).[99]

[133] In the decision, Ms English acknowledged potential professional impact but concluded that the substantiated misconduct was serious and required a commensurate response. Ms English also recorded a concern that the seriousness of the misconduct may inhibit the organisation's ability to effectively serve residents, patients and the community, should Ms Williams remain in a clinical, patient-facing role.

[134] In circumstances where the proposed outcome was termination, Ms English's selection of a non-termination pathway (while removing Ms Williams from patient-facing clinical duties) represents a balancing of personal impact with safety and trust considerations.

[135] If Ms Williams' position were accepted, the likely consequence would be either (a) a return to a patient-facing clinical role notwithstanding Ms English's recorded safety and trust concerns; or (b) an outcome moving back toward termination, which on Ms Williams' own materials, would result in acute financial consequences.

[136] On balance, I am satisfied Ms English's approach reflects a defensible and proportionate balancing exercise in circumstances where Ms English concluded Ms Williams had engaged in misconduct.

[137] I also accept the Respondent's submission that no suitable alternative duties were available within the nursing stream.

[138] The concern identified was that Ms Williams could not be entrusted with the provision of patient care having regard to the nature of the allegations concerning her conduct.[100]

[139] Ms Williams is employed as an Enrolled Nurse - NG3, a classification level contained within the Nurses and Midwives (Queensland Health) Award 2015. Schedule 1 to these reasons sets out an abridged version of the classification structure that was current at the time the appeal was filed. Relevantly, NG3 and lower classifications all include patient-facing caring obligations. In those circumstances, I accept the allocation of alternative duties within the nursing stream would not have been practicable given Ms English's concern around patient safety.

Whether the penalty was "objectively" less onerous than termination

[140] The remaining issue in respect of Appeal Ground Two is whether the imposed outcome can properly be regarded as less onerous than termination.

[141] Ms Williams' reply submissions contend, in substance, that the practical effect of the imposed penalty is not "objectively less onerous" than termination, because it removes her from nursing duties and undermines her capacity to maintain nursing registration unless she obtains alternative employment.

[142] Whereas the Respondent maintains the imposed outcome is less onerous than termination because it keeps Ms Williams in permanent public sector employment, which carries a lesser impact, particularly given Ms Williams' stated fear that loss of employment may result in homelessness.

[143] I accept the Respondent's submission on this point. Ms English initially proposed termination but ultimately imposed an outcome that preserved Ms Williams' ongoing employment within the public sector.

[144] That is a material distinction which supports the conclusion that, even accepting the penalty may result in serious professional consequences, it remains (in objective terms) a less onerous outcome than termination.

[145] For the reasons above, I am not persuaded that the asserted career impacts render the penalty decision unfair or unreasonable. On balance, Appeal Ground Two is not made out.

Appeal Ground Three - The disciplinary penalty is unavailable to the Respondent

[146] This ground concerns whether the disciplinary outcome imposed, falls within the scope of action authorised by the PS Act.

[147] Ms Williams contends the disciplinary action was not a "reduction in classification", because she was removed from the nursing classification structure entirely and placed within another award/classification structure. She contends that such an outcome is not contemplated by s 92(1)(b) of the PS Act.

[148] This contention is maintained in her reply submissions, including the argument that any attempt to characterise the action as redeployment is misconceived, and that the outcome is akin to termination of her Enrolled Nursing contract and re-engagement in an Operations role.

[149] The PS Act provides a non-exhaustive list of disciplinary action in s 92(1), including: reduction of classification level and consequential change of duties; and transfer or redeployment.[101]

[150] The Act further provides that the chief executive may take disciplinary action they consider "reasonable in the circumstances".[102]

[151] The Respondent submits that s 92(1) is non-exhaustive, arguing it has the power to impose an outcome involving a classification reduction and/or transfer/redeployment, including between classification/remuneration systems, and relies on s 93 to support the breadth of what may be "reasonable in the circumstances".

[152] The dictionary in schedule 2 of the PS Act defines "redeploy" as meaning employ the employee at a lower classification level (whether or not on different duties or at a different location), other than temporarily.[103]

[153] The PS Act dictionary definition of "transfer" includes changing the employee's duties (including role and location).[104]

[154] On the plain wording of s 92(1) (including transfer/redeployment) and these definitions, I am not persuaded that the power to impose disciplinary action is confined to movement only within a single industrial instrument or classification structure. The statutory definitions of "redeploy" and "transfer" are framed broadly and do not, in my view, adopt the limitation contended by Ms Williams.

[155] The question raised therefore is whether the movement of Ms Williams out of the nursing classification structure and into another award or classification system was beyond the disciplinary powers conferred by s 92 of the PS Act.

[156] Although I accept the disciplinary outcome could have been more precisely described as involving transfer/redeployment elements in combination with a change in duties, that does not lead to the conclusion that the Respondent lacked statutory authority to impose the outcome, given s 92(1) expressly contemplates transfer or redeployment as disciplinary action and s 92(1) is non-exhaustive.[105]

[157] Ms Williams submits the practical outcome of the change in duties is a fundamental alteration of her classification and terms of employment, akin to termination of her employment as an Enrolled Nurse.

[158] However, the challenge with this submission is that it does not acknowledge the disciplinary penalties that are available to Ms English under the statutory scheme when determining what action to take in response to disciplinary findings.

[159] The penalty decision expressly records that termination was considered but was not imposed. Instead, Ms English imposed disciplinary action under s 92(1) involving permanent reduction of classification and a consequential change of duties. Ms English specifically recorded that this course was adopted after balancing mitigating/extenuating matters against the seriousness of the findings.

[160] In circumstances where the Act expressly contemplates disciplinary outcomes involving reduction in classification and/or transfer or redeployment, the outcome cannot properly be treated as "unavailable" merely because it involves a substantial change in role and duties.[106]

Directive 05/23: revised disciplinary action that is less onerous than the proposed action

[161] The Discipline Directive provides that the chief executive may decide to impose disciplinary action different from that proposed in the show cause notice, provided (among other things) the revised action is objectively less onerous than the action originally proposed.[107]

[162] Here, the proposed disciplinary action was termination, and the imposed outcome changed to a reduction in classification and consequential change of duties.

[163] Against that background and having regard to the preservation of Ms Williams' ongoing employment within the Public Sector and the benefits and entitlements that ordinarily accompany such employment, I accept the Respondent's submission that the imposed outcome was objectively less onerous than termination.

[164] For the reasons set out above, I am satisfied the disciplinary penalty was available to the Respondent under the PS Act and was imposed consistently with the applicable Directive framework. Appeal Ground Three is not made out.

[165] Ms Williams' has raised concerns about the suitability of the Operational Support Officer (OO2) role.

[166] Ms Williams' submits that she has no relevant skills, training, or experience. Further, Ms Williams' contends that she has not been assessed for fitness or suitability for the role.[108]

[167] The Respondent submits that the Operational Support Officer (OO2) role is an entry level role and has no mandatory skills or experience. The Service has stated that Ms Williams would be comprehensively oriented and trained into the role and all training and onboarding would take place during paid work time.[109]

[168] Further, it is the Respondent's submission that the physical requirements of the proposed role include a requirement to push, pull, reach above shoulder height, bend and kneel whilst performing duties.[110] The Respondent maintains that these requirements are not substantially different from the physical demands of Ms Williams' substantive role.[111]

[169] The Position Description for the proposed role confirms that Ms Williams would be required to perform duties including:[112]

• Clean various clinical and administrative areas to the required standards, only utilising approved cleaning equipment and chemicals.
• Maintain all cleaning equipment in good working order, in accordance with manufacturer's recommendations.
• Perform cleaning duties and waste removal as required.
• Utilise unit stock and equipment in a cost-effective manner.

[170] I have considered the submissions of the parties.

[171] Although I accept Ms Williams may not have previously undertaken the proposed role and does not have direct experience in it, the position is entry level. I accept the Respondent's submission that comprehensive training would also be provided.

[172] Having regard to the Position Description, the physical demands of the role appear, in at least some respects, comparable to those of an Enrolled Nurse.

[173] In any event, should Ms Williams hold concerns as to her suitability for the role in a safety context, it remains open to the Service to undertake an assessment.

[174] In those circumstances and having regard to the materials provided to the Commission in relation to this point, I am not persuaded that the concerns raised by Ms Williams establish that the proposed Operational Support Officer (OO2) role is unsuitable.

[175] The appeal is determined by reviewing the decision that was made, the process by which it was reached, and whether the outcome was fair and reasonable having regard to the applicable directive, legislation and the material before Ms English at the time.

[176] While I acknowledge the disciplinary outcome is accompanied by professional consequences for Ms Williams, and I do not underestimate the heavy price she has paid, the Commission's task in this appeal is not to re‑make the decision where it has been determined the findings and the disciplinary outcome were reasonably open to Ms English.

[177] Having reviewed the decision appealed against, the materials before Ms English, and the parties' written submissions, I am satisfied the disciplinary findings were properly characterised within the meaning of the PS Act.

[178] That characterisation materially informed the seriousness and risk assessment undertaken in selecting the appropriate disciplinary outcome.

[179] In relation to each appeal ground, Ms Williams' submissions invite the conclusion that the penalty was disproportionate, that its professional consequences render it unfair, and that the particular disciplinary action was not available under the statutory scheme.

[180] However, I am not persuaded those arguments displace the balancing exercise contemplated within the Directive and ultimately undertaken by Ms English when determining an appropriate penalty.

[181] Although termination was originally proposed, I accept that mitigating and other considerations were weighed and that this process ultimately resulted in a non‑termination outcome being selected. That outcome preserved Ms Williams' ongoing employment in the public sector, albeit in a different role, whilst addressing the decision maker's concerns regarding safety, trust and public confidence.

[182] For the reasons set out above, I am not persuaded that any of the appeal grounds are made out.

[183] On balance, the disciplinary decision was fair and reasonable and should be confirmed.

[184] Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed and the appeal is dismissed.

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

PART 4 - Minimum Salary Levels, Allowances and Related Matters

12. Classifications and minimum wage and salary levels

(a) Employees covered by this Award are to be classified into the appropriate classification utilising the nursing and midwifery generic level statements which are contained in Schedule 2.

(b) These statements reflect the degree of complexity and responsibility of duties, skills and knowledge proceeding from the lowest to the highest nurse grades.

(a) The minimum salaries payable to nurses and midwives covered by this Award are prescribed in the table below:

[186] The nursing and midwifery generic level statements are contained in Schedule 2 to the Award and provide the specific domains required for each classification level, which encompass direct comprehensive care or provision of direct care, support of systems, education, research and professional leadership, where applicable. The descriptions for Nursing Grades 1 through to 5 are reproduced below.[113]

S2.3 Nursing Grade 1, Band 1

An employee who provides nursing care under the direction and supervision of a registered nurse/registered midwife.

(a) Works at all times under the direct or indirect supervision of a registered nurse/registered midwife.

(b) Work may be overseen by an enrolled nurse.

(c) Onsite supervision required.

Direct comprehensive care or provision of direct care

• Accountable for own healthcare practice and to the responsible registered nurse/registered midwife for delegated episodes of care.
• Responsible for accepting delegated tasks/duties which require basic skills, training and experience.

• Training to apply standardised practices and procedures, as delegated.

• Perform a range of duties that require basic skills, knowledge, training and experience.
• Performance of patient care needs such as -
  • ➢ Gather information about resident/patient care needs by observing the resident/patient and reporting to the registered nurse to assist the registered nurse to assess, plan and evaluate care.
  • ➢ Perform and report on outcomes of care delivery as delegated by the registered nurse/registered midwife.
  • ➢ Assist with the personal hygiene and appearance of the recipients of healthcare services.
  • ➢ Contribute to and maintaining the healthcare environment.
  • ➢ Contribute to the maintenance of a safe and secure environment for staff and the recipients of healthcare services.

• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.

• Contribute to the maintenance of a physically, culturally and psychosocially safe environment for recipients of healthcare services and staff.
• Engage in incident reporting to promote safe and /or rectify unsafe practice.

• Attend education sessions.
• Maintain personal ongoing education and development portfolio.

• Contribute to evaluative research activities as appropriate.

S2.4 Nursing Grade 1, Band 2

An employee, under the direction and supervision of a registered nurse/registered midwife, who:

(a) has completed a Certificate III in Sterilising Services; and

(b) is engaged in the provision of sterilising services.

Autonomy

(a) Works at all times under the direct or indirect supervision of a registered nurse/registered midwife.

(b) Work may be overseen by an enrolled nurse with qualifications in sterilising services.

(c) Onsite supervision required.

Title

(a) Assistant in Nursing - Sterilising Services

Direct comprehensive care or provision of direct care

• Accountable for own healthcare practice and to the responsible registered nurse/registered midwife for delegated episodes of care.
• Responsible for accepting delegated tasks/duties which require basic skills, training and experience.

• Training to apply standardised practices and procedures, as delegated.

• Gather information about stocks and supplies to assist the registered nurse to plan sterilising work.
• Perform and report on procedures as delegated by the registered nurse.

Maintaining the integrity of the sterilising environment

• Contribute to the maintenance of a safe practice - infection control and sterilization measures.

• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.

• Contribute to the maintenance of a physically, culturally and psychosocially safe environment for recipients of healthcare services and staff.
• Engage in incident reporting to promote safe and /or rectify unsafe practice.

• Attend education sessions.
• Maintain personal ongoing education and development portfolio.

• Contribute to evaluative research activities as appropriate.

S2.6 Nursing Grade 2

An employee who:

(a) is an undergraduate student of nursing or midwifery; and

(b) is undertaking or has completed, on a full time basis, the second semester of the second year of a pre-registration university program or is undertaking the fourth semester of a second year post graduate pre-registration university program in a nursing or midwifery qualification approved by the NMBA.

Autonomy

(a) Works under the direct or indirect supervision of a registered nurse/registered midwife assisting with the care of recipients of healthcare services as delegated by the registered nurse/registered midwife.

Title

(a) Undergraduate Student in Nursing/Midwifery

Direct comprehensive care or provision of direct care

• Accountable for own healthcare practice and to the responsible registered nurse/registered midwife for delegated episodes of care.
• Responsible for accepting delegated tasks/duties, which are commensurate with training and assessed competencies.

• Demonstrate skills commensurate with the level of undergraduate training and competencies.

• Contribute to the care needs of recipients of healthcare services.
• Perform a range of duties commensurate with the level of training and assessed competencies as delegated by the registered nurse/ registered midwife.
• Work within a healthcare team under the supervision of a registered nurse/registered midwife.

• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.

• Contribute to the maintenance of a physically, culturally and psychosocially safe environment for recipients of healthcare services and staff.
• Engage in incident reporting to promote safe and /or rectify unsafe practice.

• Contribute to quality healthcare through lifelong learning and professional development of self and others.

• Contribute to evaluative research activities as appropriate.

S2.6 Nurse Grade 3

An employee who is a enrolled nurse who supports a registered nurse/registered midwife in the provision of patient centred care as specified by registration requirements, NMBA standards and codes, educational preparation, relevant legislation and context of care.

Autonomy

(a) Practises under the direct or indirect supervision of a registered nurse/registered midwife assisting with the care of recipients of healthcare services as delegated by the registered nurse/registered midwife.

(b) Seeks assistance and support in decision making from a registered nurse/registered midwife.

Title

(a) Enrolled Nurse

Direct comprehensive care or provision of direct care

• Accountable for NMBA and own standards, actions and the outcomes of own nursing/midwifery practice and supervision of unregulated healthcare workers.
• Provide direct and indirect care, engage in reflective and analytical practice and demonstrate professional and collaborative practice.

• Consolidate educational preparation and increase knowledge and skills while moving from beginner to experienced.

• Collaborate and consult with healthcare recipients, their families and community as well as registered nurses/registered midwives and other health professionals, to plan, implement and evaluate nursing care.

• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.

• Maintain the safety of recipients of healthcare services by identifying risk and undertaking safe work activities within the clinical practice environment.
• Engage in incident reporting and participate in quality improvement activities to promote safe and /or rectify unsafe practice.

• Participate with other members of the healthcare team in providing support and mentorship to new and less experienced staff.

• Contribute to quality healthcare through lifelong learning and professional development of self and others.
• Provide health promotion and education to recipients of healthcare services and carers.

• Participate as appropriate in evaluative and local action research activities.
• Apply evidence-based guidelines to achieve positive care outcomes for recipients of healthcare services as delegated by the registered nurse/registered midwife.

• Collaborate with the registered nurse/registered midwife in clinical and organisational governance.
• Under the guidance of the registered nurse/registered midwife work to achieve best practice outcomes within the work unit environment.

S2.7 Nurse Grade 4

An employee who is a enrolled nurse with advanced skill who supports a registered nurse/registered midwife in the provision of patient centred care as specified by registration requirements, NMBA standards and codes, educational preparation, relevant legislation and context of care.

Autonomy

(a) Practises predominately with indirect supervision while assisting with the care of recipients of healthcare services as delegated by the registered nurse/registered midwife.

(b) Seeks assistance and support in decision making from a registered nurse/registered midwife.

Title

(a) Enrolled Nurse Advanced Skill

Direct comprehensive care or provision of direct care

• Accountable for NMBA and own standards, actions and the outcomes of own nursing/midwifery practice and supervision of unregulated healthcare workers.
• Provide direct and indirect care, engage in reflective and analytical practice and demonstrate professional and collaborative practice.

• Demonstrate a greater depth of knowledge, skills, experience, competence and more effective integration of theory to practice than a Nurse Grade 3.
• Provide support and direction and act as a role model to others where appropriate.

• Demonstrate greater experience and competence in the development, implementation and evaluation of care plans than a Nurse Grade 3.
• Provide effective communication with members of the healthcare team, recipients of healthcare services, families and other agencies in collaboration with the registered nurse/registered midwife.

• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.
• May assist in reviewing and evaluating nursing/midwifery standards at the local level.
• May hold a portfolio in an area of advanced skill

• Maintain the safety of recipients of healthcare services by identifying risk and undertaking safe work activities within the clinical practice environment.
• Engage in incident reporting and participate in quality improvement activities to promote safe and /or rectify unsafe practice.

• Participate with other members of the healthcare team in providing support and mentorship to new and less experienced staff.

• Contribute to quality healthcare through lifelong learning and professional development of self and others.
• Provide health promotion and education to recipients of healthcare services and carers.
• Educate and support less experienced staff in relation to the provision of care where appropriate.

• Participate as appropriate in evaluative and local action research activities.
• Apply evidence-based guidelines to achieve positive care outcomes for recipients of healthcare services as delegated by the registered nurse/registered midwife.

• Collaborate with the registered nurse/registered midwife in clinical and organisational governance through active participation in team leadership and decision making.
• Under the guidance of the registered nurse/registered midwife work to achieve best practice outcomes within the work unit environment.

...

S2.9 Nursing Grade 5

Registered Nurse

An employee who is a registered nurse who:

(a) provides nursing services within health service settings; and

(b) demonstrates competence in the provision of nursing care as specified by registration requirements, NMBA standards and codes, educational preparation, relevant legislation and context of care

Autonomy

(a) Practises independently and interdependently.

(b) Assumes accountability and responsibility for own actions and delegation of care to enrolled nurses, assistants in nursing and healthcare workers.

(c) Demonstrates evidence of increasing autonomy and exercises greater levels of professional judgement in the clinical environment as the employee moves from a beginning to experienced practitioner.

Title

(a) Registered Nurse

Direct comprehensive care or provision of direct care

• Accountable for NMBA and own standards, actions and the outcomes of own nursing/midwifery practice, professional advice given and for activities delegated to a registered nurse/registered midwife, enrolled nurse or unregulated healthcare worker.
• Accountable for delegation of activities to others and shifting accountability/coordination as allocated.

• Consolidate educational preparation and increase knowledge and skills while moving from beginner to experienced practitioner.

• Assess, plan, implement and evaluate nursing care in collaboration with individuals, peers and the healthcare team to achieve goals and health outcomes.
• Take a leadership role in the coordination of nursing and provision of health services across the continuum of care.
• Make appropriate referral to, and consult with peers, other relevant health professionals, service providers, and community and support services.

• Participate in developing, reviewing and evaluating clinical/nursing standards, guidelines, protocols, pathways, procedures, standards and systems of work.
• Adhere to established guidelines, protocols, procedures, standards and systems of work as set out by the organisation.

• Maintain the safety of recipients of healthcare services by identifying risk and undertaking safe work activities within the clinical practice environment.
• Participate in incident investigation and quality improvements to promote safe and /or rectify unsafe practice.

• Provide support, guidance, preceptorship, supervision and mentoring to healthcare team as appropriate.
• Delegate to and supervise enrolled nurses and students consistent with the NMBA decision making framework and registered nurse standards for practice.

• Depending on service size/location may take on the role of team leader and/or shift coordinator, commensurate with the level of competence.

• Contribute to quality healthcare through lifelong learning and professional development of self and others.
• Provide health promotion and education to recipients of healthcare services and carers.
• Support nursing/midwifery practice and learning experiences by providing in-service teaching, orientation and preceptorship for the nursing/midwifery team.

• Participate in evaluative and local action research activities.
• Apply evidence-based guidelines to achieve positive care outcomes for recipients of healthcare services.

• Provide clinical leadership for professional and clinical practice.
• Collaborate in clinical and organisational governance.
• Proactively engage with the clinical nurse and others to achieve best practice outcomes within the work environment.

[1] Appeal Notice filed 21 June 2023, Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023'.

[2] Appeal Notice filed 21 June 2023 (n 1).

[3] Industrial Relations Act 2016 (Qld) s 562B(2).

[4] Brandy v Human Rights an Equal Opportunity [1995] HCA 10; (1995) 183 CLR 245, 261.

[5] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

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

[7] Nurses and Midwives (Queensland Health) Award 2015, reprint dated 1 March 2023.

[8] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023'.

[9] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 8; Nursing and Midwifery Board of Australia, Enrolled nurse standards for practice, published 1 January 2016.

[10] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 9.

[11] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 10.

[12] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 12.

[13] Appeal Notice filed 21 June 2023 (n 1), Attachment 6 ' Letter from Queensland Nurses & Midwives' Union to Ms Lesley English dated 4 May 2023'.

[14] Appeal Notice filed 21 June 2023 (n 1), Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023'.

[15] Appeal Notice filed 21 June 2023 (n 1), Attachment 8 'AHPRA Nursing and Midwifery Board of Australia Schedule of Conditions'.

[16] Directive 05/23: Discipline, Effective date: 1 March 2023, cl 1.1.

[17] Commonwealth, Parliamentary Debates, House of Representatives, 12 September 2024 (Anika Wells, Minister for Aged Care and Minister for Sport); Aged Care Act 2024 (Cth) s 14.

[18] Aged Care Act 2024 (Cth), s 14.

[19] Aged Care Rules 2025 (Cth), r 14.

[20] Nursing and Midwifery Board of Australia, Enrolled nurse standards for practice, published 1 January 2016 (n 9), 2.

[21] Nursing and Midwifery Board of Australia, Enrolled nurse standards for practice, published 1 January 2016 (n 9), 4 - 6.

[22] Appeal Notice filed 21 June 2023 (n 1), [13].

[23] Appeal Notice filed 21 June 2023 (n 1), [14].

[24] Appeal Notice filed 21 June 2023 (n 1), [15].

[25] Appeal Notice filed 21 June 2023 (n 1), [16].

[26] Appeal Notice filed 21 June 2023(n 1), [16].

[27] Appeal Notice filed 21 June 2023 (n 1), [17] - [18]; Attachment 8 'AHPRA Nursing and Midwifery Board of Australia Schedule of Conditions'.

[28] Appeal Notice filed 21 June 2023 (n 1), [20]; Public Sector Act 2022 (Qld) s 92(1)(b).

[29] Appeal Notice filed 21 June 2023 (n 1), [22].

[30] Appeal Notice filed 21 June 2023 (n 1), [22].

[31] (1989) 16 NSWLR 197, 200.

[32] Appellant's written submissions filed 22 September 2023 [11]-[12].

[33] Appellant's written submissions filed 22 September 2023 [12].

[34] Appellant's written submissions filed 22 September 2023 [13].

[35] Respondent's written submissions filed 3 November 2023 [25].

[36] Respondent's written submissions filed 3 November 2023 [26].

[37] Pillai v Messiter (No 2) (1989) 16 NSWLR 197; Respondent's written submissions filed 3 November 2023 [27].

[38] Appellant's written submissions filed 22 September 2023 [1].

[39] Appellant's written submissions filed 22 September 2023 [4].

[40] Appellant's written submissions filed 22 September 2023 [5].

[41] Respondent's written submissions filed 3 November 2023 [15].

[42] Respondent's written submissions filed 3 November 2023 [16]-[18].

[43] Respondent's written submissions filed 3 November 2023 [20]-[21].

[44] Respondent's written submissions filed 3 November 2023 [22].

[45] Appellant's written submissions filed 22 September 2023 [9].

[46] Appellant's written submissions filed 22 September 2023 [6].

[47] Appellant's written submissions filed 22 September 2023 [8].

[48] Gilmour v Waddell & Ors [2019] QSC 170.

[49] Respondent's written submissions filed 3 November 2023 [16].

[50] Respondent's written submissions filed 3 November 2023 [28].

[51] Appellant's written submissions filed 22 September 2023 [18]-[19].

[52] Appellant's written submissions filed 22 September 2023 [20].

[53] Appellant's written submissions filed 22 September 2023 [22]-[23].

[54] Respondent's written submissions filed 3 November 2023 [31].

[55] Respondent's written submissions filed 3 November 2023 [34].

[56] Respondent's written submissions filed 3 November 2023 [32].

[57] Appellant's written reply submissions filed 24 November 2023 [11].

[58] Appellant's written submissions filed 22 September 2023 [24].

[59] Respondent's written submissions filed 3 November 2023 [34].

[60] Appellant's written submissions filed 22 September 2023 [25].

[61] Respondent's further reply written submissions filed 10 June 2025 [13].

[62] Respondent's further reply written submissions filed 10 June 2025 [14]-[15].

[63] Appellant's written submissions filed 22 September 2023 [26]-[29].

[64] Respondent's written submissions filed 3 November 2023 [40].

[65] Respondent's further reply written submissions filed 10 June 2025 [6].

[66] Respondent's further reply written submissions filed 10 June 2025 [8].

[67] Respondent's written submissions filed 3 November 2023 [35].

[68] Respondent's written submissions filed 3 November 2023 [36].

[69] Appellant's written reply submissions filed 24 November 2023 [10].

[70] Respondent's further reply written submissions filed 10 June 2025 [3]; Appeal Notice filed 21 June 2023 (n 1), Attachment 6 ' Letter from Queensland Nurses & Midwives' Union to Ms Lesley English dated 4 May 2023'.

[71] Respondent's written submissions filed 3 November 2023 [39].

[72] Appellant's written reply submissions filed 24 November 2023 [2].

[73] Appellant's written reply submissions filed 24 November 2023 [3].

[74] Appellant's written reply submissions filed 24 November 2023 [4]-[5].

[75] Appellant's written reply submissions filed 24 November 2023 [7].

[76] Respondent's written submissions filed 3 November 2023 [38].

[77] Appellant's written reply submissions filed 24 November 2023 [9].

[78] Respondent's further reply written submissions filed 10 June 2025 [13].

[79] Public Sector Act 2022 (Qld) s 91(1)(b).

[80] Public Sector Act 2022 (Qld) s 91(5)(a).

[81] State of Queensland (Queensland Health) v Nield [2025] ICQ 021 [69], [74]. .

[82] State of Queensland (Queensland Health) v Nield [2025] ICQ 021 [69].

[83] State of Queensland (Queensland Health) v Nield [2025] ICQ 021 [101].

[84] State of Queensland (Queensland Health) v Nield [2025] ICQ 021 [75], [101].

[85] Appeal Notice filed 21 June 2023 (n 1), Attachment 3 'Letter from Ms Lesley English to Ms Dulcie Williams dated 22 February 2023', 2.

[86] Appeal Notice filed 21 June 2023 (n 1), Attachment 3 'Letter from Ms Lesley English to Ms Dulcie Williams dated 22 February 2023', 2.

[87] Appeal Notice filed 21 June 2023 (n 1), Attachment 3 'Letter from Ms Lesley English to Ms Dulcie Williams dated 22 February 2023', 4-5.

[88] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 'Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 3, 7.

[89] Nursing and Midwifery Board of Australia, Enrolled nurse standards for practice, published 1 January 2016 (n 9).

[90] Appeal Notice filed 21 June 2023 (n 1), Attachment 3 'Letter from Ms Lesley English to Ms Dulcie Williams dated 22 February 2023', 1.

[91] Appeal Notice filed 21 June 2023 (n 1), Attachment 3 'Letter from Ms Lesley English to Ms Dulcie Williams dated 22 February 2023', 2 citing the Aged Care Code of Conduct.

[92] State of Queensland (Queensland Health) v Nield [2025] ICQ 021.

[93] Public Sector Act 2022 (Qld) s 91(5)(a).

[94] Appeal Notice filed 21 June 2023 (n 1), Attachment 5 ' Letter from Ms Lesley English to Ms Dulcie Williams dated 20 March 2023', 3.

[95] Appeal Notice filed 21 June 2023 (n 1), Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023'.

[96] Appeal Notice filed 21 June 2023 (n 1), Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023', 2.

[97] Appeal Notice filed 21 June 2023 (n 1), Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023', 2-3.

[98] Appeal Notice filed 21 June 2023 (n 1), Attachment 7 'Letter from Ms Lesley English to Ms Dulcie Williams dated 26 May 2023', 2.

[99] Directive 05/23: Discipline, Effective date: 1 March 2023.

[100] Respondent's written submissions filed 3 November 2023 [12].

[101] Public Sector Act 2022 (Qld) s 92(1)(b), (c).

[102] Public Sector Act 2022 (Qld) s 93(1).

[103] Public Sector Act 2022 (Qld) sch 2, definition of "redeploy".

[104] Public Sector Act 2022 (Qld) sch 2, definition of "transfer".

[105] Public Sector Act 2022 (Qld) s 92(1)(c); State of Queensland (Queensland Health) v Nield [2025] ICQ 021 [69].

[106] Public Sector Act 2022 (Qld) ss 92-93.

[107] Directive 05/23: Discipline, Effective date: 1 March 2023.

[108] Appellant's written reply submissions filed 24 November 2023 [9].

[109] Respondent's further reply written submissions filed 10 June 2025 [13], [14].

[110] Respondent's further reply written submissions filed 10 June 2025 [15].

[111] Respondent's further reply written submissions filed 10 June 2025 [15].

[112] Operational Support Officer (OO2) Position Description and other materials emailed to the Industrial Registry on 23 February 2026 and 4 March 2026.

[113] Nurses and Midwives (Queensland Health) Award 2015, reprint dated 1 March 2023, sch 2. This is an abridged extract and does not include the full grading structure.