Corney v State of Queensland (Queensland Health)
[2023] QIRC 188
•20 June 2023
QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION PARTIES: | Corney v State of Queensland (Queensland Health) [2023] QIRC 188 Corney, Steven v State of Queensland (Queensland Health) |
CASE NO: | PSA/2023/91 |
PROCEEDING: | Public Sector Appeal – Appeal against a fair treatment decision |
DELIVERED ON: | 20 June 2023 |
HEARD AT: MEMBER: | On the papers Pidgeon IC |
| ORDERS: | Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed. |
CATCHWORDS: | PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –PUBLIC SECTOR APPEAL – where the appellant appeals an internal review decision – decision fair and reasonable – decision appealed against confirmed |
| LEGISLATION AND OTHER INSTRUMENTS: | Individual Employee Grievances (Directive 11/20) cl 9 Industrial Relations Act 2016 (Qld) ss 562B, 562C, Public Sector Act 2022 (Qld) ss 129, 131, 133 Public Service Act 2008 (Qld) s 137 (repealed) Workplace Health and Safety Act (Qld) ss 5, 14, 16, 19 |
Reasons for Decision
Introduction
Mr Steven Corney (‘the Appellant’) is employed by the State of Queensland (Queensland Health) (‘the Respondent’) as an Enrolled Nurse (‘EN’), Advanced Skills, Townsville Community Care Unit (‘TCCU’), Mental Health Service group, within the Townsville Hospital and Health Service (‘THHS’).
Mr Corney appeals the internal review decision of Ms Theresa Hodges, Chief Human Resources Officer, Queensland Health, dated 19 April 2023.
History of the Matter
Suspension and alternative duties
I have been assisted by the submissions of the Respondent which set out a background to the matter.[1]
[1] Respondent’s submissions filed 13 June 2023, [5]-[27].
On 2 September 2022, Ms Sharon Kelly, Interim Executive Director, Human Resources and Engagement, THHS, wrote to Mr Corney to tell him he was being suspended from duty on full pay from 2 to 16 September 2022, in response to concerns about his conduct and behaviour in the workplace, specifically an interaction with Toni Clayton, A/Nurse Unit Manager, TCCU, on 31 August 2022.[2]
[2] Ibid Attachment 1.
On 16 September 2022, Ms Kelly wrote to Mr Corney to advise him that he was being placed in alternative duties, as an EN in the Secure Mental Health Rehabilitation Unit (‘SMHRU’) from 17 September 2022 until 28 October 2022.[3]
[3] Ibid Attachment 2.
On 19 and 20 September 2022, Mr Corney advised the Nurse Unit Manager (‘NUM’), SMHRU that he was unwilling to work on the clinical floor without having completed Occupational Violence Prevention (‘OVP’) training, specifically MAYBO training.[4] The NUM advised Mr Corney that the current OVP training is MAPA,[5] and that Mr Corney was fully compliant with that training requirement.
[4] A brand name, not an acronym.
[5] Management of Actual or Potential Aggression Training.
By correspondence from Ms Kelly dated 21 September 2022, Mr Corney was:
·advised that his refusal to undertake the alternative duties he was directed to undertake is not a valid exercise of a workplace right (as claimed), because any concern he may have about being exposed to a serious risk to his health and safety is unreasonable because he has maintained currency in MAPA completion required; and
·issued with a direction to immediately resume the full scope of duties as an EN in the SMHRU when he presented for shift on 23 September 2022, in accordance with the direction issued on 16 September 2022.[6]
[6] Respondent’s submissions filed 13 June 2023, [9], Attachment 3.
By letter dated 23 September 2022 from Ms Kelly, Mr Corney was suspended from duty on full pay from 23 September 2022 to 28 October 2022 and provided with an opportunity to show cause why he should not be suspended without pay.[7]
[7] Ibid Attachment 4.
Mr Corney provided a response to the proposed suspension without pay by letter dated 28 September 2022. In that correspondence, Mr Corney maintained that the THHS was wrong in its belief that MAPA training is the appropriate training. Mr Corney was not suspended without pay and his suspension from duty on full pay was extended until 18 December 2022 through correspondence from Ms Kelly dated 26 October 2022 and 17 November 2022.
On 16 December 2022, Ms Kelly wrote to Mr Corney and extended his suspension from duty on full pay from 19 December 2022 to 8 January 2023. Mr Corney was also directed to attend MAPA training from 9 to 13 January 2023 and then after completion of that training, return to his substantive role at the TCCU. I have reviewed this letter and note that Ms Kelly referred to an email sent to Mr Corney from Ms Griffiths, Manager of the Queensland Occupational Violence Strategic Unit (‘QOVSU’) confirming that the THHS has the discretion to select an OVP training provider and that the current choice of the THHS for an OVP training provider is MAPA.[8]
[8] Ibid Attachment 6; Letter from Ms Sharon Kelly, Interim Executive Director, Human Resources and Engagement, Townsville Hospital and Health Service to Mr Steven Corney, 16 December 2022, 2-3.
Grievance
Around 30 December 2022, Mr Corney lodged an individual employee grievance against Ms Kelly in respect of his suspensions and maintaining his position that THHS must comply with the Department’s decision to implement MAYBO as the state-wide OVP training.[9]
[9] Ibid Attachment 7.
On 4 January 2023, Mr Corney met with Professor Kieran Keyes, Health Service Chief Executive, THHS, regarding another grievance. On 6 January 2023, Professor Keyes sent correspondence to Mr Corney in relation to this other grievance. A summary of that letter is provided in the Respondent’s submissions:
a. noting the Grievance and acknowledge [sic] that although some of the matters are interrelated, he intended to provide a separate response to that in due course;
b. advising that in order to return to work, Mr Corney is required to complete the MAPA training;
c. advising that he had organised for Mr Corney to take special paid leave from 9 to 13 January 2023, so that he could return to work and attend MAPA training from 16 January 2023; and
d. advising that this rescinded the suspension advised by Ms Kelly on 16 December 2022.[10]
[10] Ibid [16]; Letter from Ms Theresa Hodges, Chief Human Resources Officer to Mr Steven Corney, 19 April 2023.
On 12 January 2023, Professor Keyes wrote to Mr Corney with his decision in relation to the first grievance. Professor Keyes found that as a result of the correspondence of 6 January 2023, Mr Corney was not liable for discipline and he considered the grievance to be closed. Mr Corney was also informed that he could return to work on 16 January 2023 to commence MAPA training.[11]
[11] Letter from Ms Theresa Hodges, Chief Human Resources Officer to Mr Steven Corney, 19 April 2023.
Further suspension
The Respondent says that on 16 January 2023, Mr Corney attended the MAPA training as directed. The Respondent says that during introductions, Mr Corney expressed a view that participants would not be legally covered if they used MAPA as MAYBO was the approved program of Queensland Health. Mr Corney was asked to leave the training.
In a letter dated 17 January 2023, Mr Corney was suspended from duty on full pay from 17 to 29 January 2023 as a result of concerns regarding his workplace behaviour whilst attending the MAPA training on 16 January 2023, and noting that as there is a requirement that he be MAPA compliant to perform the inherent requirements of his role, and he was unable to complete the MAPA course he had been scheduled to attend, it was not appropriate for him to remain in the workplace.[12]
[12] Respondent’s submissions filed 13 June 2023, Attachment 8.
Further grievance
On 19 January 2023, Mr Corney lodged a further individual employee grievance against Ms Kelly in relation to the suspension decision set out above at [15]. Mr Corney said that MAPA is an unauthorised training and that it cannot be a requirement of his position.[13]
[13] Ibid Attachment 9.
Request for internal review
On 23 January 2023, Mr Corney requested an internal review of Professor Keyes’ decision with regard to his grievance.[14] In a letter dated 27 January 2023, Professor Keyes provided a decision in relation to the further grievance. The Respondent provides the following summary of that correspondence:[15]
a. as the suspension was done under s 137(a) of the Public Service Act 2008, Ms Kelly has not used suspension as a form of discipline, but rather as an administrative action to better be able to consider the next steps in managing Mr Corney’s concerns about completing the MAPA training;
b. his view that the statutory powers of the THHS permit it to select its own OVP training provider and that MAPA is an approved OPV training program for employees of the THHS (with detailed reasons provided in the letter); and
c. it is appropriate for THHS and Mr Corney to take steps for him to attend and complete his MAPA training and then return to his substantive position in the TCCU.[16]
[14] Ibid Attachment 10.
[15] Ibid [22].
[16] Ibid Attachment 11.
On 1 February 2023, Mr Corney requested an internal review of Professor Keyes’ decision in respect of his further grievance.
Internal review
On 7 February 2023, Ms Hodges wrote to Mr Corney to advise him that she would be undertaking an internal review in relation to the grievance outcomes provided to Mr Corney by Professor Keyes on 12 and 27 January 2023. Ms Hodges informed Mr Corney that the internal reviews would be managed as one internal review. Ms Hodges wrote to Professor Keyes requesting further information to assist her in conducting the internal review.[17]
[17] Ibid Attachment 12.
The Internal Review Decision
Ms Hodges wrote to Mr Corney on 19 April 2023 to provide her internal review decision. This letter is ten pages long and is attached to the appeal notice. I have read the letter, however for convenience, I will set out the summary of the internal review findings contained the letter which the Respondent included in its submissions:[18]
[18] Ibid [25].
a. An appropriate authorised delegate (Professor Keyes) managed and resolved Mr Corney’s grievances;
b. The time taken to manage and resolve Mr Corney’s concerns was reasonable;
c. Professor Keyes’ enquiries enabled him to gather sufficient information to understand Mr Corney’s grievances and make a balanced finding on Mr Corney’s concerns;
d. Professor Keyes’ grievance decisions outlined the actions he took to manage Mr Corney’s grievances and the outcome of these actions;
e. Professor Keyes’ grievance decisions provided Mr Corney with the reason for his decision and why no action would be taken regarding Mr Corney’s grievances;
f. Mr Corney was informed of his internal review rights in each grievance outcome, including the timeframes associated with them; and
g. Professor Keyes’ written grievance decisions dated 12 and 27 January 2023 meet the requirements of clause 9.1(f) of the Directive.[19]
[19] Individual Employee Grievances (Directive 11/20).
The Respondent says that Ms Hodges confirmed that an internal review is not intended to reassess the grievances but provided further information to Mr Corney to assist his understanding of the outcome of the review in relation to PCBUs,[20] heath safety, wellbeing management system, the QOVSU and discipline processes.
[20] A person conducting a business or undertaking as defined in the Workplace Health and Safety Act 2011 (Qld) s 5.
The Respondent says that Ms Hodges determined that the actions taken and the decisions made by Professor Keyes were fair and reasonable in the circumstances and confirmed the decisions. Ms Hodges advised Mr Corney that she did not intend to take any further action concerning the outcome of the grievances, as she believed that the outcomes Mr Corney was seeking were inappropriate, given her determination. Ms Hodges requested Mr Corney to follow all lawful directions provided to him in relation to undertaking the mandatory training required for him to perform his role, including MAPA training.
Mr Corney’s Appeal Notice and Submissions
Mr Corney’s appeal notice states:
The respondent took unreasonable management action in the form of an unlawful suspension and threats of disciplinary action against the applicant for invoking a workplace rights [sic].
· Making valid complaints of breaches of the Mental Health Act.
· Withdrawing for Health and safety reasons as applicant had not received the appropriate Occupational Violence training determined by the employer and PCBU, Queensland Health.
Workplace bullying in the form of making vexatious complaint against the applicant, Management using their power and authority to take unreasonable management action against the applicant.
Mr Corney’s appeal notice does no more to explain his grounds for appeal. However, as the decision attached to his appeal notice was the internal review decision of Ms Hodges, I determined that Mr Corney was seeking an external review of that decision. On 10 May 2023, I issued directions requiring Mr Corney to make submissions addressing why the internal review decision of Ms Hodges dated 19 April 2023 was not fair and reasonable.
On 1 June 2023, Mr Corney filed his submissions titled ‘Statement as to why the Findings of the Internal Review by Ms Hodges, Chief Human Resource Officer, Queensland Health, was not fair or reasonable’.
Mr Corney’s submissions were very difficult to follow and did not provide me with any real guidance or detail as to why Ms Hodges’ findings were not fair and reasonable. I have done my best to understand Mr Corney’s concerns and to extract grounds of appeal.
In part 1 of his submissions, Mr Corney provides arguments to support the statement he made in his internal review request that while THHS is a PCBU, it is not responsible for the health and safety of staff but only for issues relating to the land and buildings.
In part 2 of this submissions, Mr Corney disagrees with Ms Hodges’ finding that:
… the THHS, has a PCBU, as a primary duty of care in accordance with s 19 of the WHS Act. The THHS must ensure, as reasonably practicable, amongst other duties, that the work environment is without risks to health and safety to workers or other people and provide training and instruction to protect all people from risks to their health and safety arising from work carried out as part of the conduct of business or undertaking…
Mr Corney says that Queensland Health is his employer and primary PCBU as a health service employee. Mr Corney says that s 19(1) of the WHS Act 2011 (Qld) (‘the WHS Act’) applies to Queensland Health as his employer and PCBU.
Ms Hodges explained in the internal review decision that ‘the THHS, where reasonably practicable, uses suitable ways to eliminate or minimise the risks. Under s 14 of the WHS Act, THHS cannot legally transfer their duty as a PCBU’.
Mr Corney disputes this and says that s 14 of the WHS Act applies to Queensland Health as the employer and PCBU and that it cannot transfer to the duty of OVP training to another entity like the THHS.[21]
[21] Appellant’s submissions filed 1 June 2023, pt 3.
Mr Corney says at part 4 of his submissions that ‘no Agreement exists that limits or removes QHealth responsibilities and duties as PCBU in relation to OVP’.
Mr Corney states that ‘QHealth is the employer and primary PCBU and the THHS MUST comply as per the service agreement with the Q Health OVP Training Transition to Maybo Implementation Guide’. At part 6 of his submissions, Mr Corney repeats his view that Queensland Health ‘cannot transfer duty of OVP training to another entity like the THHS’.
In the internal review decision, Mr Corney was provided with information about Queensland Health’s health, safety and wellbeing management system, a graphical representation of the system, and an explanation as to how both Queensland Health and THHS implement the Health, Safety and Wellbeing (‘HSW’) Standards Framework. Mr Corney’s submissions at Part 7 state:
7.l The THHS Health and Wellbeing Management System Diagram, shows no reference to Occupational Violence Prevention and Management policies for either Q Health or THHS.
7.2 The THHS did have a policy, but this was rescinded. THHSCOR191370 Occupational violence and aggression – prevention and management Policy.
So THHS are aware they should have an OVP policy.
7.3 THHS is required to have policies and procedures relating to the local implementation of the Occupational Violence Competency Framework (2018) as per: Health, safety and wellbeing governance standard.
“HHSs must apply the Queensland Health WHS standards framework which will be supported by local procedures”.
7.4 Q Health have no OVP Policy or procedures.
7.5 Neither PCBU’s are meeting their obligation to provide appropriate direction through polices and procedures.
Mr Corney submits that Queensland Health must have their own policies for Occupational Violence as a PCBU and that THHS must comply. Mr Corney asks, ‘Does operational control mean that THHS get to chose [sic] how they implement the Q Health OVP training (MAYBO) or that they can chose [sic] whatever OVP training without agreement with the shared duty holder and without consultation with workers’.
Ms Hodges informed Mr Corney that ‘there is currently no standard, policy or guideline on OVP that has been formally endorsed as part of the HSW Standards Framework’. In his submissions, Mr Corney says, ‘So, the department is admitting they are not meeting the requirements of the WHS Act as a PCBU and employer in the THHS’.
Mr Corney appears to say that Ms Hodges has provided him with information which is outdated and no longer relevant. Ms Hodges informed Mr Corney that she had reviewed the Occupational Violence Prevention Training – Transition to MAYBO – Implementation Guide and that the document does not state that THHS or any HHS is to implement MAYBO as part of the Occupational Violence Competency Framework (‘OVCF’). Ms Hodges informed Mr Corney that the document ‘simply provides a guide on how an HHS is to implement MAYBO, not that the HHS must implement MAYBO.
Mr Corney disagrees with Ms Hodges’ assessment and says he believes that document means that it applies to all HHS’s and that the procured OVP training MAYBO is to be implemented state-wide for all employees. Mr Corney refers to a document from the Sunshine Coast Hospital and Health Service which states that ‘The Queensland Occupational Violence Strategy Unit (QOVSU) has contracted Maybo to provide instructor training and course content to Queensland Health.’
At the end of his submissions Mr Corney provides a ‘summary’ of his submissions:
14 Both Queensland Health and THHS have failed in the legislative duties under the WHS Act 2011.
15 As a worker I have a protected right to withdraw for Health and safety reasons. I withdrew because I had not received the mandated OVP training MAYBO from my employer Q Health.
16 No agreement exists between Q Health and THHS that allows the THHS to ignore the Q Health OVP training to implement their own choice when the Health, Safety and Wellbeing policy, standards and guidelines all state the HHS’s must comply with Q Health directives and guidelines.
17 The Townsville Hospital and Health Board (THHS) has no authority to take direct action against a Q Health employee.
18 I have not breached any OVP policy as they don’t exist.
19 Q Health can not take action against an employee for not complying with a THHS training if that training has not been documented to be endorsed by Q Health.
20 The THHS unlawfully took action against me by suspending me and removing from my [sic] workplace. This breached the Public service Act, Industrial Relations Act, Human Rights Act and the Workplace Health and Safety Act.
Appeal Principles
Section 562B(3) of the Industrial Relations Act 2016 (Qld) (‘the 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'.
Findings made in the decision which are reasonably open on the relevant material or evidence before the decision-maker should not be expected to be disturbed on appeal.
A public sector appeal is not an opportunity for a fresh hearing, but a review of the decision arrived at by the decision-maker.
In deciding this appeal, s 562C(1) of the IR Act provides that the Commission may:
(a) confirm the decision appealed against; or
…
(c) For another appeal— set the decision aside, and substitute another decision or return the matter to the decision maker with a copy of the decision on appeal and any directions considered appropriate.
Legislative Framework and Other Instruments
Section 131 of the Public Sector Act 2022 (Qld) (‘the PS Act’) lists various categories of decisions against which an appeal may be made. Section 131(1)(d) provides that an appeal may be made against a fair treatment decision.
Section 129 of the PS Act relevantly states:
129 Definitions for part
…
fair treatment decision means a decision a public sector employee believes is unfair and unreasonable.
Section 133 of the PS Act explains who may appeal a fair treatment decision:
133 Who may appeal
…
(d) for a fair treatment decision—a public sector employee aggrieved by the decision;
Respondent’s submissions
I understand that it would have been difficult for the Respondent to file reply submissions addressing the matter at hand, an external review of the internal review decision, given the way that Mr Corney decided to set out his submissions.
The Respondent says that Mr Corney was afforded procedural fairness at all times; the findings made by Ms Hodges were reasonably open and available to her on the material; and in making the decision, Ms Hodges complied with the Directive, the PS Act and relevant policies and procedures of the THHS.
The Respondent’s remaining submissions in reply are short and to the point. It is convenient to replicate them here rather than attempt to summarise them:
33. Mr Corney has a particular view about the appropriateness of the MAPA training. However, the mere fact that his view was not accepted by either Professor Keyes or Ms Hodges does not mean the decisions in relation to his grievances was not fair and reasonable. With respect to the decision by THHS to use MAPA for its OVP training, the Respondent relies upon the email dated 29 September 2022 from Ms Griffiths to Mr Corney confirming that Hospital and Health Services have the discretion to selection [sic] an OVP training provider of their choice. Other than his personal view, Mr Corney has provided no clear reason as to why the decision by THHS to use MAPA is not reasonable or appropriate.
34. Importantly, with respect to the Decision subject of this Appeal, Ms Hodges prepared a detailed response to Mr Corney, in which she noted the basis upon which Mr Corney made his applications for internal reviews, outlined the action taken to review the grievance decisions, confirmed the material she had taken into consideration in reaching her Decision, set out her reasons for Decision, provided further information to assist Mr Corney to understand the Decision, confirmed the action she proposed to take as a result of the internal review and provided Mr Corney with details of avenues for external appeal.
The Respondent says that the Commission can be satisfied, having regard to the decision, that appropriate consideration was given to the matters raised by Mr Corney in his grievances and requests for internal review.
The Respondent points out that in any event, the appeal has been overtaken by events noting that Mr Corney undertook the MAPA training from 22 to 26 May 2023; and that he has returned to his substantive role on 6 June 2023, following a period of approved leave.
Consideration
Ms Hodges’ internal review decision of 19 April 2023 is comprehensive and provides detailed consideration and reasoning regarding her internal review of the decisions of Professor Keyes dated 12 January 2023 and 27 February 2023.
Ms Hodges sets out the reasons given by Mr Corney as to why he was dissatisfied with Professor Keyes’ grievance decisions and the outcome he was seeking from the internal review:[22]
[22] Letter from Ms Theresa Hodges, Chief Human Resources Officer to Mr Steven Corney, 19 April 2023, 1-2.
Request for an internal review
On 23 January 2023, you advised you were dissatisfied with Professor Keyes’ grievance decision, dated 12 January 2023, for the following reasons:
· you considered that Professor Keyes had absolved you of any wrongdoing, i.e., that you had not disobeyed a lawful direction as no discipline process had been commenced against you;
· Professor Keyes refused to take any action against Ms Sharon Kelly, Acting Executive Director, Human Resources and Engagement, THHS, despite her breaching industrial relations law, public service law, workplace health and safety law; and
· you are being singled out because you have not been afraid to speak out and defend your rights.
On 1 February 2023, you advised you were dissatisfied with Professor Keyes’ grievance decision, dated 27 January 2023, for the following reasons:
· you consider Professor Keyes’ decision that MAPA is the lawful occupational violence prevention (OVP) training provided by THHS as an unproven statement as you have never been provided with documentation that states THHS can determine the provider of OVP training;
· you consider that all actions taken resulted from you exercising a workplace right to withdraw due to your belief that MAPA is unlawful;
· Professor Keyes did not meet with you to discuss your grievance;
· you consider that as you are not facing disciplinary action, your reasons should be or have been accepted; and
· you consider the actions of Professor Keyes and the executives of THHS as ongoing bullying because you have raised what you believe to be legitimate concerns about a serious breach of the Work Health and Safety Act 2011 (the WHS Act).
On 10 February 2023, you advised that you are seeking the following to resolve the internal review:
· a public acknowledgement that the THHS has breached the WHS Act and the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB11) 2022;
· a written public apology to you, by Professor Keyes and Ms Kelly for taking unlawful actions against you; and
· that an appropriate level of discipline is taken against Professor Keyes, Ms Kelly, and other HR practitioners of THHS for discrimination under the WHS Act, the Industrial Relations Act 2016 (IR Act) and the Human Rights Act 2019 (HR Act).
The background of the matter is set out from the bottom of page two through to the middle of page four of the decision and is largely reflected in the background set out above.
Ms Hodges informs Mr Corney of the actions taken to review the grievance outcome decisions in accordance with cl 9.2 of the Directive and provides a list of the documents and materials she considered in undertaking the review.[23] Ms Hodges notes that she has considered the new information Mr Corney provided in the internal review, even though Professor Keyes may not have considered it.
[23] Ibid 4.
Ms Hodges explains that she has considered the industrial instruments applicable at the time the grievance decision was made. [24]
[24] Ibid 5.
Ms Hodges tells Mr Corney that she is satisfied that Professor Keyes was an appropriately authorised delegate to manage and resolve Mr Corney’s grievances. Ms Hodges also informs Mr Corney that Professor Keyes provided a written outcome in response to the grievance within 28 days and that she is therefore satisfied that the time taken to manage and resolve Mr Corney’s concern was reasonable.[25]
[25] Ibid.
Ms Hodges sets out the types of options available to a delegate when managing a grievance according to cl 9.1(b) of the Directive. Ms Hodges says that in reviewing the material, she notes that Professor Keyes conducted enquiries and gathered information, including meeting with Mr Corney. Ms Hodges says that she is satisfied that those enquiries enabled Professor Keyes to gather sufficient information to understand Mr Corney’s concerns and make a balanced finding.[26]
[26] Ibid 6.
Mr Corney’s grounds of appeal do not allege that Ms Hodges was mistaken in making her findings discussed above from [55]-[58] regarding what I would describe as the procedural aspects of the internal review process. All of those findings were open to Ms Hodges and do not give rise to any finding of unreasonableness of the internal review decision.
Ms Hodges then goes on to consider the grievance decision itself and the reasons Professor Keyes gave for his decision and why no action would be taken with regard to Mr Corney’s grievance:
· after your meeting with Professor Keyes on 4 January 2023, he acknowledged that sometimes when we feel personally aggrieved, we may conduct ourselves in a manner that may be out of character;
· Professor Keyes set aside Ms Kelly’s concerns that you may be liable for discipline that resulted in the suspension and confirmed that he considered you were not liable for discipline;
· Professor Keyes considered that the outcome of you commencing MAPA training on 16 January 2023 and returning to your substantive position resolved your grievance;
· Professor Keyes was satisfied that THHS has the statutory powers to select its own OVP training provider and MAPA was an approved OVP training program for employees of THHS;
· that THHS is a PCBU and for the purposes of implementing work health and safety functions and risk measures;
· Professor Keyes did not accept that the Health, Safety and Wellbeing Governance Standard – QH-IMP-401-6:202 placed an obligation on THHS to adopt MAYBO as its OVP provider;
· Ms Kelly has acting reasonably and appropriately;
· Ms Kelly had not breached your human rights by removing you from the workplace as it was clear that you had no intention of completing the MAPA training and that it was not appropriate for you to return to the workplace when you have not completed OVP training;
· Ms Kelly’s decisions may have impacted on your Human Rights, however, the limiting of your human rights was reasonably justified;
· your suspension under s 137(1)(a) of the repealed PS Act was not used as a form of discipline but as an administrative action to better be able to consider the next steps in managing your concerns regarding MAPA training;
· it is appropriate for THHS and you to take steps for you to attend and complete MAPA training and then return to your substantive position.
Ms Hodges tells Mr Corney that she is satisfied that Professor Keyes’ written grievance decision meets the requirements of cl 9.1(f) of the Directive and that Mr Corney was informed of his internal review rights.
Ms Hodges then goes on to recognise that Mr Corney is ‘discontent with the outcome of your grievances’ and that he feels he has ‘been provided with unproven statements’. Ms Hodges notes that the purpose of the internal review is not to reassess the grievance but says that she is providing Mr Corney with a range of information which she says is for the purpose of assisting ‘in your understanding of the outcome of the internal review’.
Under the heading ‘Person Conducting a business or undertaking (PCBU)’, Ms Hodges confirms that THHS is a PCBU and that it has ‘a primary duty of care in accordance with s 19 of the WHS Act’. Ms Hodges says that THHS must ensure:
… as reasonably practicable, amongst other duties, that the work environment is without risks to health and safety to workers or other people and provide training and instruction to protect all people from risk to their health and safety arising from work carried out as part of the conduct of business or undertaking. The THHS, where reasonably practicable, uses suitable ways to eliminate or minimise the risks.
Ms Hodges confirms that under s 14 of the WHS Act, THHS cannot legally transfer their duty as a PCBU and that under s 16 of the WHS Act, more than one PCBU may hold the same duty. Ms Hodges says that each PCBU retains responsibility for their duty and must discharge it to the extent they can influence and control the matter. Ms Hodges says ‘... A PCBU is not required to be a legal entity that is an employer. It is simply a person, which may be a legal entity, such as a HHS, that is in control of a business or undertaking’. Ms Hodges concludes by informing Mr Corney that in practical terms:
… THHS must meet its duties to provide a safe work environment to workers and other people. In meeting the duty, THHS may provide training and instructions to eliminate or minimise the risk of occupational violence, regardless of Queensland Health’s responsibilities as a PCBU.[27]
[27] Ibid 7.
Under the heading ‘Health, safety and wellbeing management system’, Ms Hodges confirms that Queensland Health and THHS both implement the HSW Standards Framework and that THHS is the accountable area and maintains operational control of HSW. Ms Hodges says that there is currently ‘no standard, policy or guideline on OVP that has been formally endorsed as part of the HSW Standards Framework’. Ms Hodges notes that THHS met its PCBU and HSW management system responsibilities by developing the Mandatory and Role Required Training Policy – THHSCOR150985. Schedule 3 of that policy indicates that all mental health staff, including nurses, are required to undertake both MAPA – essential and MAPA – Advanced training every two years. Ms Hodges says this local procedure minimises the risk of occupational violence through training.
Ms Hodges then addresses the ‘Queensland Occupational Violence Strategy Unit’. She says that the QOVSU was tasked with developing a comprehensive training and capability framework for the Queensland public health system. Ms Hodges notes that the Occupational Violence Competency Framework Fact Sheet contains details of the Framework, including that each HHS is responsible for the application of the state-wide capability training framework. Ms Hodges notes that the framework does not dictate or require a particular provider to provide the training. The OVCF does not state specific training providers such as MAPA or MAYBO. Ms Hodges says that she has carefully reviewed the Occupational Violence Prevention Training – Transition to MAYBO – Implementation Guide and says that the document does not state the THHS or any HHS must implement MAYBO, rather it provides a guide on how an HHS is to implement MAYBO.
I have considered the matters Mr Corney sets out in his submissions in support of his appeal. It seems to me that Mr Corney continues to disagree with Ms Hodges’ assessment of THHS’s responsibilities as a PCBU. Mr Corney’s submissions do not demonstrate why Ms Hodges assessment of the situation is wrong. Mr Corney makes some statements regarding his view that Queensland Health cannot ‘transfer duty of OVP training to another entity like THHS’ but does not demonstrate that Ms Hodges’ assessment regarding the duties of THHS is wrong.
In his submissions, Mr Corney continues to argue that THHS must implement MAYBO training but does nothing more than make this assertion. Mr Corney is critical of the lack of policy or procedures regarding OVP. Mr Corney says that there was no consultation process conducted by Queensland Health or THHS about remaining with MAPA instead of transitioning to ‘the statewide recommended OVP training by Q Health’. Mr Corney says that Ms Hodges has relied on outdated information regarding the training and capability framework. Mr Corney offers his own ‘lay person’s’ interpretation of the Occupational Violence Prevention Training – Transition to MAYBO Implementation Guide’. As Mr Corney understands it, on the balance of probabilities, it can be reasonably concluded that MAYBO was to be implemented state-wide for all employees.
Nothing Mr Corney has set out in his submissions demonstrates that Ms Hodges’ decision was not fair and reasonable. A disagreement about the outcome of the internal review does not serve to make it unfair. Further, Mr Corney’s personal views about the way the Workplace Health and Safety legislation operates and whether MAPA is an appropriate training program to be implemented in this workplace are just that, his personal views. That Mr Corney believes something different does not make Ms Hodges wrong.
Ms Hodges informed Mr Corney that the decision not to commence a disciplinary process do not equate to a finding that his conduct was appropriate. Ms Hodges informed Mr Corney that the practical application of the positive performance management principles reflected in Discipline (Directive 05/23) and the rescinded Suspension (Directive 16/20) means that the ‘vast majority of alleged inappropriate conduct is not managed through the commencement of a discipline process’.
It was fair and reasonable for Ms Hodges to confirm Professor Keyes’ grievance decision. Mr Corney has not been disciplined and it was entirely reasonable for Ms Hodges to confirm Professor Keyes’ decision that attendance at the MAPA training and a return to work were the appropriate outcome and that the Grievance could be closed.
It was fair and reasonable for Ms Hodges to direct Mr Corney to follow lawful directions provided to him in relation to undertaking the mandatory training required for him to perform his role, including MAPA training.
It was also fair and reasonable for Ms Hodges to determine that the outcomes Mr Corney sought were inappropriate, given the internal review decision she had made.
Turning to Mr Corney’s reasons for appeal as set out in his appeal notice, I do not find that Ms Hodges’ internal review decision constituted ‘unreasonable management action in the form of an unlawful suspension and threats of disciplinary action against the applicant for invoking a workplace right’. I am unable to establish that Mr Corney had made ‘valid complaints of breaches of the Mental Health Act’. While Mr Corney maintains he withdrew from the training for ‘health and safety reasons as applicant had not received the appropriate Occupational Violence training determined the employer and PCBU, Queensland Health’, I find that Ms Hodges has provided detailed information to Mr Corney to demonstrate that his withdrawal was not appropriate and that the MAPA training was appropriate and he was expected to complete it. Mr Corney makes a complaint regarding workplace bullying, however this public sector appeal is not the avenue to address workplace bullying.
As I understand it, Mr Corney has now completed the MAPA training and has returned to his work role.
The internal review decision of Ms Hodges was fair and reasonable in all of the circumstances and is confirmed.
The appeal is dismissed.
Orders
1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the decision appealed against is confirmed.
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