McDonald v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION: PARTIES:	McDonald v State of Queensland (Queensland Health) [2024] QIRC 266 McDonald, Charles (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2024/146
PROCEEDING:	Public Sector Appeal – Appeal against a disciplinary decision
DELIVERED ON:	15 November 2024
DATES OF WRITTEN SUBMISSIONS:	Notice of Appeal filed 6 September 2024 Respondent's submissions filed 24 September 2024 Appellant's submissions in reply filed 8 October 2024 Respondent's submissions in reply filed 14 October 2024 Appellant's further submissions in reply filed 15 October 2024 Respondent's further submissions in reply filed 23 October 2024 Appellant's further submissions in reply filed 25 October 2024
HEARD AT:	On the papers
MEMBER:	Pidgeon IC
ORDERS:	The orders contained in paragraph [128] of these reasons for decision
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY –PUBLIC SECTOR APPEAL – appeal against a disciplinary decision – where the Allegation relates to 'time sheet fraud' – where Allegation was substantiated – whether decision to substantiate the Allegation was fair and reasonable – whether the substantiated Allegation amounts to misconduct under s 91(1)(b) of the Public Sector Act 2022 (Qld) – where the decision appealed against is set aside – where the decision appealed against is returned to the decision-maker to consider additional evidence provided by the Appellant
LEGISLATION AND OTHER INSTRUMENTS:	Industrial Relations Act 2016 (Qld) ss 562B(3), 562C(1), 566(1) Public Sector Act 2022 (Qld) ss 91(1)(b), 92, 129. 131, 133, 324 Public Service Commission Directive 05/23 Discipline (the Discipline Directive) cls 4.2, 4.7, 4.10(a), 4.10(b), 7.2, 9.4
CASES:	Briginshaw v Briginshaw [1938] 60 CLR 336 Harvey v Walker [2016] QDC 180 Mourilyan v James Hardie Australia Pty Ltd [2010] FWA 9672

Reasons for Decision
Introduction

Dr Charles McDonald ('the Appellant') is employed by the State of Queensland (Queensland Health) ('the Respondent') as a Senior Clinical Perfusionist at the Prince Charles Hospital.
Dr McDonald appeals the decision of Ms Tami Photinos, Executive Director of the Prince Charles Hospital ('the decision-maker') dated 19 August 2024 which substantiated an allegation of time sheet fraud ('the Allegation') and included a disciplinary finding of misconduct.

I must decide the appeal by reviewing the disciplinary finding decision appealed against.

Background

By letter dated 5 April 2024 ('the initial letter'), the Appellant was informed of the Allegation against him, including particulars of the dates that he was alleged to have committed 'occurrences of time sheet fraud'.[1]
[1] Respondent's submissions filed in the Industrial Registry on 24 September 2024, Attachment 2.
By letter dated 16 April 2024, Dr McDonald responded to the initial letter.[2] Dr McDonald sought that no disciplinary action be taken as a result of his responses to each of the instances of time sheet fraud alleged against him.

[2] Respondent's submissions (n 1), Attachment 3.

On 27 May 2024, Dr McDonald was suspended with remuneration.[3]

[3] Appellant's Notice of Appeal filed in the Industrial Registry on 6 September 2024, [4].

On 5 June 2024, Dr McDonald responded to the notice of suspension.[4]

[4] Ibid, [5].

By letter dated 19 August 2024, the decision-maker substantiated the Allegation and proposed to impose the disciplinary action of a reprimand. Annexed to this letter was a two-page document titled 'Attachment 1: Statement of Reasons', in which the decision-maker stated:[5]
[5] Ibid, Annexure 1.

I have carefully considered all of the information available to me including your response of 18 April 2024, however all the information may not be specifically mentioned in my decision.
Allegation 1: It is alleged that on multiple occasions between August 2023 to February 2024, you have committed multiple occurrences of time sheet fraud.
In your response to Allegation 1, you advise (in part):
·        You want to clarify that you have never claimed for time that you did not work.
·        The assertion that you have engaged in timesheet fraud is extremely disappointing and unfounded.
·        Shift inaccuracies. The shifts listed in your documentation are incorrect. Your Thursday and Friday shifts have always been from 0700 -1530, not 0730 - 1600 as stated. This discrepancy calls into question the accuracy of the data used to make the claims.
·        Of the seventy-four claims, 30 are categorically false as the data demonstrates that you were either still present at work or you have operation records to indicate you were at work. Moreover, forty-three instances fail to account for the intricacies of the working day in the Perfusion Department, such as the entitled 30-minute unpaid meal break (Health Practitioners and Dental Officers Award 2015, s 16.1) that is often rescheduled to the end of the shift due to the demands of the cardiothoracic theatre environment.
·        Potential Discrepancies in AVAC Submission: For 3 instances, you believe there is a possibility that an AVAC was completed and left in the common Perfusion folder but was not properly processed by another Perfusionist who may have had access to the folder.
·        Additionally, you would like to bring to the Health Service attention the common practice in our department, as stated by my line manager, Dr. Ivan Rapchuk, that it is acceptable to leave 30 minutes or more before the end of a shift if all the work in the operating theatres has been completed. This practice is widely known and accepted within our department.
·        Given the extensive data review conducted on my ID card, you are concerned that you are being singled out for potential fraud and punishment, when in fact similar work practices are being carried out by my colleagues in the Perfusion and Anaesthetic departments. You believe that if you are being audited, the entire Perfusion department, should also be subject to the same level of scrutiny.
·        Finally, you would kindly request the identity of the person(s) who made the complaint against me, as you believe this is a targeted complaint based on a known history of issues. If this is not possible, you will submit a request for information (RTI).

The decision-maker went on to state:[6]
[6] Ibid, Annexure 1.
I have undertaken a detailed review of all of the information available to me and have aligned the issues pertaining to your time worked into three categories:
1.       Meal breaks
On multiple occasions you advise you were unable to take your 30-minute lunch break within the third and sixth hours of duty. You then left work approximately 30 minutes early to take your lunch break.
With regards to meal breaks, management have advised that on occasion, staff may be unable to take their 30 unpaid minute unpaid meal break within the third and sixth hours of duty due to workload. This practice should be on an ad hoc basis and not common practice. I do have concerns regarding the number of times you state you have been unable to take your lunch break within the third and sixth hours of duty.
Whilst I have concerns regarding these instances, I have decided that where there is a 30 minute discrepancy due to your claim that you did not take a meal break, I will not to (sic) include these in my decision to substantiate the allegation. I have raised these concerns with management and can confirm that, in the future, if there is a requirement for you to work through your 30 minute unpaid meal break you will be directed to do so in accordance with section 16.1(b) of the Health Practitioners and Dental Officers (Queensland Health) Award – State 2015.
2.       Unusual swipe card activity
On multiple occasions, swipe card activity data indicates nil activity within the last few hours of your shift, raising concerns that you have left the facility prior to your rostered finish time. In your response, you advise the activity data report shows that you are entering a lift, stock room or staff change room and express your view that it does not indicate an exit from the facility. Whilst I acknowledge your comments that the activity data does not confirm an exit from the facility, it is my view that it does raise concern. Firstly, it is curious that this pattern of activity only occurs in the afternoon, never in the morning. Secondly, if you were still at work as your claim, it would be reasonable to expect to see continued swipe card activity within the report.
Additionally, I note that on several occasions, car park entry and exit data shoes you have entered the car park however there is no exit recorded. Interestingly, the dates where your exit from the car park is not recorded coincides with the occasions where there is no swipe card activity data available for that afternoon. It is reasonable and appropriate that you use your swipe card to move throughout the facility and to enter and exit the staff car park. Accordingly, you are directed to use your swipe card when required to move throughout the facility and you are directed to use your swipe card upon entry into and exit from the staff car park. You are not to 'shadow' or follow other staff throughout the facility or when exiting the car park. Should any concerns of a similar nature arise in the future, this will ensure your entry and exit times are accurately recorded and will avoid any contention on the matter.
3.       Start and finish times
On multiple occasions, you have arrived to work after your rostered start time and have left prior to your rostered finish time. This is evidenced in the swipe card activity data and in the car park entry/exit report.
The evidence before me confirms that on multiple occasions you have either commenced your shift later or finished your shift earlier than your rostered start and finish times. Or, on the occasions you were unable to take your 30 minute unpaid meal break, you have finished your rostered shift more than 30 minutes early. This is evident in the swipe card activity data report and also the car park entry and exit report. This is no evidence you have submitted an attendance variation and allowance claim form for these occasions. I note you attempt to devolve responsibility for the processing of your AVAC's to others. You state one of your colleagues has not taken your completed AVAC to the Administration Officer and you also state that payroll may had (sic) made an error when processing your completed AVAC. I would like to be clear, that it is your responsibility to ensure your AVAC's are completed and processed correctly.
In summary, I do not accept your explanations in relation to the unusual swipe card activity and concerns around start and finish times are appropriate responses to the allegations and it is my view that on multiple occasions between August 2023 to February 2024, you have incorrectly recorded your time worked.
Accordingly, on the balance of probabilities, I find allegation 1 to be substantiated.
Having found the Allegation substantiated, the decision-maker determined that there were grounds for discipline under s 91(1)(b) of the Public Sector Act 2022 (Qld) ('the PS Act') on the basis that Dr McDonald had engaged in misconduct when he committed multiple occurrences of time sheet fraud.
Dr McDonald was informed that the decision-maker was giving consideration to imposing disciplinary action in the form of a reprimand pursuant to s 92 of the PS Act and Dr McDonald was invited to show cause as to why that discipline action should not be implemented.

On 27 August 2024, Dr McDonald provided a response to the show cause notice, attaching additional evidence. In summary, Dr McDonald's show cause response maintained his position that he had not committed fraud as alleged and that no disciplinary action should be imposed. Dr McDonald states that there are explanations for the 'unusual time sheet activity' and states that any inaccuracy or irregularity in this time sheets was not intentional and therefore, there has been no fraud.[7] Dr McDonald suggested that management action would appropriately address the concerns raised by the decision-maker.[8]

[7] Ibid, Annexure 2, 1.

[8] Ibid, Annexure 2, 2.

In the show cause response, Dr McDonald provides evidence 'limited to what has been available to me while I am restricted from the workplace and/or contacting colleagues'.[9] Dr McDonald notes that on the basis of his explanation regarding days where he did not take a lunch break, the decision-maker removed 41 alleged irregularities, leaving 32 where the decision-maker determined on the balance of probabilities that Dr McDonald had committed misconduct on the basis of time sheet fraud. Dr McDonald raises a concern that the balance of probabilities test has not been correctly applied to confirm a serious allegation of fraud.[10]

[9] Ibid.

[10] Ibid, Annexure 2, 4.

Dr McDonald goes on to provide a detailed explanation for the absence of swipe card data in the afternoons. Dr McDonald says that if he had been granted access to his work computer as he requested on 5 June 2024, many of the allegations would have 'easily been dispelled'.[11] Dr McDonald attaches the following to his show cause response:[12]
[11] Ibid, Annexure 2, 3.
[12] Ibid, Annexure 2, 6 – 13.

·Breakdown and reply to each irregularity
·Google Map data demonstrating presence at TPCH on alleged dates

·Bank statement showing coffee purchase on alleged 'not at work' date to demonstrate plausibility
·Email time-stamped as being at work on alleged 'not at work' no swipe-card dates

Dr McDonald says that he emailed the decision-maker about whether there was a need to appeal the decision given the new evidence he had provided. Dr McDonald said that he raised with the decision-maker whether the appeal process is the best use of resources given the new evidence available.
On 6 September 2024, Dr McDonald filed an appeal notice in the Queensland Industrial Relation Commission ('the Commission').

On 10 September 2024, I ordered that the disciplinary process be stayed pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act') until the appeal process before the Commission had been decided.

Appeal principles

Section 562B(3) of 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

Section 324 of the PS Act relevantly provides:
(1)This section applies if—
(a)before the commencement, a person appealed against a decision under the repealed Act, section 194; and
(b) immediately before the commencement, the appeal had not been decided.
(2) From the commencement, the appeal must be heard and decided under chapter 3, part 10.

Section 131 of the PS Act lists various categories of decisions against which an appeal may be made. Section 131(1)(c) provides that an appeal may be made against a disciplinary decision.

Section 129 of the PS Act relevantly states:
129 Definitions for part
…
disciplinary decision means a decision under a disciplinary law to discipline—
(a)a person (other than by termination of employment), including the action taken in disciplining the person; or
(b)a former public sector employee by way of a disciplinary declaration made under section 95, including if the disciplinary action that would have been taken was termination of employment.

Section 133 of the PS Act explains who may appeal a disciplinary decision:

133 Who may appeal
…

(c)for a disciplinary decision—a public sector employee or former public sector employee aggrieved by the decision if the employee is entitled to appeal under a directive

Section 562B of the IR Act states for an appeal against a promotion decision or a disciplinary decision under the Public Sector Act 2022, the Commission must decide the appeal having regard to the evidence available to the decision-maker when the decision was made;[13] but may allow other evidence to be taken into account if the Commission considers it appropriate.[14]
[13] Industrial Relations Act 2016 (Qld) s 562B(4)(a).
[14] Ibid, s 562B(4)(b).
I am satisfied that the decision is one that may be appealed against and that the appeal was lodged within the required time.

Dr McDonald's reasons for appeal

In his appeal notice filed on 6 September 2024, Dr McDonald's submits that he has five discrete grounds for appeal which are: [15]
a.       Ground 1 - Improper application of the balance of probabilities given the seriousness and evidence;
b.       Ground 2- The Decision is clearly incorrect;
c.       Ground 3 - Proportionality and proper consideration of my human rights;
d.       Ground 4 - No procedural fairness and prohibition from accessing information in defence; and
e.       Ground 5 - Did not consider the questionable interpretations of the data provided against me.
[15] Appellant's Notice of Appeal (n 3), [12].

Ground 1 - Improper application of the balance of probabilities given the seriousness and evidence

In respect of ground 1, Dr McDonald submits that the balance of probabilities as defined in the Public Service Commission Directive 05/23 Discipline ('the Discipline Directive') was improperly applied. While Dr McDonald has not cited a particular clause, I understand this ground to reference cl 9.4 of the Discipline Directive.
Ground 2 - The Decision is clearly incorrect

In respect of the second ground of appeal, Dr McDonald submits that the 'allegation of time sheet fraud is entirely misconceived and false'.[16] Dr McDonald submits that the falsity of the Allegation is made clear by the '(restricted) evidence available' to him.[17]
[16] Ibid, [15].
[17] Ibid, [15].
Dr McDonald submits that the additional information he provided after the decision had been made, was because permissions for his previous requests to access his work devices 'to show exculpatory work activity' had not yet been approved.[18]
[18] Ibid, [17].

Ground 3 - Proportionality and proper consideration of Dr McDonald's human rights

Dr McDonald says that the substantiation of 'Fraud' is disproportionate given the 'lacklustre evidence behind the 'Decision''.[19] Dr McDonald submits that this is in circumstances where the Allegation 'could have implications on (his) future employment, access to the public sector, reputation, and (his) ability to provide for (his) family'.[20] Dr McDonald says that these factors should have been properly considered by the decision-maker prior to the decision being made.
[19] Ibid, [19].
[20] Ibid, [18].
Ground 4 - No procedural fairness and prohibition from accessing information in defence

In relation to Dr McDonald's fourth ground of appeal, Dr McDonald submits that he has been relegated from the workplace, barred from speaking with colleagues, and denied his chosen support person.[21]
[21] Ibid, [20].
In the circumstances, Dr McDonald submits that the decision-maker made the decision whilst also denying him access to his devices or the ability to ask his colleagues or support person to do this on his behalf. Dr McDonald says that he has been refused 'a reasonable opportunity to access and show evidence of work activity'.[22]
[22] Ibid, [22].

Ground 5 - Did not consider the questionable interpretations of the data

To support his fifth ground of appeal, Dr McDonald submits that the decision-maker did not have regard to potential irregularities in the data presented in the initial letter dated 5 April 2024. Furthermore, Dr McDonald submits that the decision-maker relied upon this inaccurate data despite him highlighting them in his letter of 16 August 2024.[23]
[23] Ibid, [24].
Additional arguments of the Appellant
Dr McDonald makes several submissions with reference to particular clauses of the Discipline Directive. I will not reproduce Dr McDonald's additional submissions here, however, the overarching arguments made by the Appellant are that:
·he has not been afforded fair treatment as prescribed by cl 4.2 of the Discipline Directive;
·management action was not considered pursuant to cl 4.7 of the Discipline Directive and further, that management action would have been a sufficient resolution in circumstances where the Allegation was proven pursuant to 7.2(d) of the Discipline Directive;
·the disciplinary process had not been carried out in an efficient manner compliant with cl 4.10(a) of the Discipline Directive;
·the decision of misconduct is not proportionate to the events alleged to have taken place, citing cl 4.10(b) of the Discipline Directive;
·clause 7.2(a) of the Discipline Directive was not given due consideration as the decision did not take into account Dr McDonald's 30 years of prior service; and
·the matter did not meet the threshold of a Public Interest Disclosure pursuant to cl 7.2(c) of the Discipline Directive.

The Respondent's submissions

In structuring its' submissions, the Respondent has made reference to each of the five grounds of appeal contained within the Appellant's notice of appeal.
The Respondent submits that it was aware of issues with respect to the Appellant's attendance as early as December 2023.[24] The Respondent says that after consideration of an audit report of Dr McDonald's swipe access card activity and carpark entry and exit and an audit of Dr McDonald's Attendance Variation and Allowance Claim form ('AVAC') paperwork, the decision-maker identified 74 instances over a seven-month period where the Appellant had attended work for fewer hours than he had been rostered to work.[25]

[24] Respondent's submissions (n 1), [5].

[25] Ibid, [6], [7].

The Respondent says that it provided Dr McDonald with an opportunity to show cause against the Allegation. In deciding to substantiate the Allegation, the Respondent says that it considered the various evidence contained within the Appellant's response, namely:[26]
a.That of the 74 dates provided, 30 were categorically false on the basis he was still at work, despite the absence of swipe card access activity.
b.That 43 instances where they have left the workplace early was due to being unable to take his 30 minute meal break between the 3rd and 6th hours of duty, and this break was instead taken towards the end of their shift.
c.The shift times provided in the first notice to show cause were inaccurate, especially his Friday shifts are 0700 to 1530 not 07:30-16:00 as indicated.
d.His actual attendance variance claim form (AVAC) was not properly processed by another staff member
[26] Ibid, [10].

Noting the considerations set out in cl 7.2 of the Discipline Directive, the Respondent rejects Dr McDonald's assertion that management action was appropriate in the circumstances. The Respondent says that the 'pattern of behaviour' was not an isolated incident and that it occurred over a significant period of time. The Respondent also says that the absence of appropriate AVACs to adjust payment received for time not worked 'spoke to a deliberate effort by the Appellant to receive monetary benefit for time not worked'.[27]
[27] Ibid, [13].
Ground 1 - Improper application of the balance of probabilities given the seriousness and evidence
The Respondent submits that in applying Briginshaw[28] to a discipline process, the Respondent must decide the matter on the balance of probabilities, with consideration to the gravity of the consequences that flow from the disciplinary finding.
[28]Briginshaw v Briginshaw [1938] 60 CLR 336 ('Briginshaw').
The Respondent says it considered Dr McDonald's submissions regarding his inability to take his meal break within the third and sixth hours of duty, instead taking it towards the end of his shift. The Respondent says it did not take these occasions into account where there was a discrepancy of 30-minutes.

The Respondent points to the evidence which it says confirms on multiple occasions Dr McDonald commenced his shift later than the rostered start time and/or finished more than 30 minutes before his rostered finish time and says there is no evidence that AVACs were submitted for these occasions.

While Dr McDonald says that his forms may not have been submitted for processing, the Respondent says that it is Dr McDonald's responsibility to ensure his AVAC forms are received and processed and that appropriate adjustments are made to his pay to reflect the attendance variance.

The Respondent says it is not making a criminal finding of fraud but a discipline finding. Therefore, the Respondent says that the evidence has been weighed according to the balance of probabilities and that evidence is proportionate to a discipline finding that may lead to a reprimand.
Ground 2 - The Decision is clearly incorrect

Regarding the second ground, that the decision is clearly incorrect, the Respondent submits that Dr McDonald failed to submit extrinsic evidence during his initial response. In any event, the Respondent submits that this evidence, such as the credit card data, provides dates with no times recorded, which 'does not assist the Appellant'.[29]
[29] Respondent's submissions (n 1), [20].

Ground 3 - Proportionality and proper consideration of Dr McDonald's human rights

With respect to this ground, the Respondent submits that the disciplinary action being considered is non-financial, and, therefore, there is no impact on the Appellant's 'ability to provide for their family'.[30]
[30] Ibid, [21].
The Respondent submits that any impact on Dr McDonald's future employment and reputation would be minimal and that any such impact 'does not preclude the Respondent from making a discipline finding where the evidence supports a pattern of time sheet fraud'.[31]
[31] Ibid, [22].
Ground 4 - No procedural fairness and prohibition from accessing information in defence

In response to the Appellant's fourth ground of appeal, the Respondent submits that the Appellant has been afforded procedural fairness throughout the process, and that, the Appellant had access to 'all information considered by the delegate in her decision'.[32]
[32] Ibid, [23].
Furthermore, the Respondent submits that the Appellant was afforded a reasonable right of reply in accordance with the Discipline Directive.[33]

[33] Ibid.

The Respondent submits that on 16 April 2024, the Appellant made a right to information request in order to identify the complainant of the complaint made against him, and not, a request for information for the purpose of retrieving evidence which would confirm that Dr McDonald would have been at work.[34]

[34] Ibid, [25].

Further, on 30 May 2024, the Respondent says that Dr McDonald made an application to access information including emails, handwritten notes and archived notes pertaining to 'personal issues with another perfusion staff member'[35] for a time period different to that relevant to this matter.

[35] Ibid, [26].

Regarding Dr McDonald's request for a support person within their immediate work unit, the Respondent submits that refusal was appropriate in circumstances where said refusal was required to 'maintain the integrity of an active investigation'.[36]
[36] Ibid, [27].

Ground 5 - Did not consider the questionable interpretations of the data

The Respondent submits that it took the 'shift discrepancies noted by the Appellant' into account when deciding to substantiate the Allegation.[37]
[37] Ibid, [28].
Dr McDonald's submissions in reply
On 8 October 2024, Dr McDonald filed submissions in reply to the submissions filed by the Respondent.
Dr McDonald again notes that of the 73 instances that formed the basis of the Allegation, 41 were excluded from the decision to substantiate the allegations. Of the remaining 32 instances of alleged time sheet fraud, 29 instances involved the use of circumstantial ID swipe card data.

Dr McDonald says that he provided written arguments for the various swipe card data which he says demonstrates that the evidence presented to him did not indicate inappropriate conduct or time sheet fraud on his part. Dr McDonald says that he also substantiated with patient identifiers that he was entitled to claim overtime on the dates in question.

Dr McDonald disputes the Respondent's submissions that he only sought information about another staff member and says that this submission is misleading. Dr McDonald says that his request to access his work computer is unrelated to the RTI application and that this should be known to the Respondent. Dr McDonald refers to Attachment 2 to his further submissions which contains an email chain.

In an email to Ms Photinos dated 5 June 2024, Dr McDonald says:[38]

Good afternoon Ms Photinos, attached is a response to my current suspension that gives more information to this situation and allegation. Also attached is a transcript of a HR meeting relevant to my response.
In addition, to facilitate my response to MN-ESU when they conduct a meeting with me, I need to gain access to the Queensland Health intranet via the Perfusion computer to access archived emails. I am happy to do this after hours or on a weekend when there are minimal people if you can arrange my access to the hospital and Perfusion office.

[38] Appellant's submissions filed in the Industrial Registry on 8 October 2024, Attachment 2, 18.

In a further email dated 20 August 2024, Dr McDonald said:[39]
Request for information relevant to my response
By email on 5/6/24, I requested access to my Queensland Health computer in order to access documents relevant to my response to the allegations. I did not receive a response.
I am again requesting access to the departmental computer (in a supervised way if necessary) within 7 days such that I may access documents relevant to the investigation/response.
[39] Ibid.
On Friday 23 August 2024, Dr McDonald writes to Mr Ivan Rapchuk and states, amongst other things:[40]
I have also requested via Tami to get access to the officer computer and filing cabinet in preparation for the ESU meeting. I first requested this in June and again earlier this week but have heard nothing back. As you are the listed contact for my suspension, I was hoping you may progress that request and have it approved (supervised if you wish).
[40] Ibid, Attachment 2, 19.
On Wednesday 28 August 2024, Mr Rapchuk replied to Dr McDonald stating that he was awaiting a response from MN workplace relations but that 'My assumption is that you will not be granted access to the work computer….'.[41]
[41] Ibid.
In his correspondence to Ms Photinos dated Wednesday 28 August 2024, Dr McDonald says:[42]
…
[42] Ibid, Attachment 2, 21.
Additionally there are grounds for appeal based on procedural fairness because I have asked for an opportunity to access work computers and filing cabinets (even if supervised) throughout the investigation to gather information that may have shown work at the relevant times and cleared my name, requests which continue to be denied. I've therefore had to resort to personal bank statements, Google Maps data, and protracted logical arguments in order to clear my name. The principles of investigation and discipline procedure would be better served if I were granted access to informative evidence of work activity (which remains inaccessible given my suspension and inability to contact colleagues about this matter).
Ms Photinos wrote to Dr McDonald on 30 August 2024 and said, '…Regarding your request to (sic) information, I understand this matter is now with the Officer of the Information Commissioner and they will respond to you directly regarding your request'.[43]

[43] Ibid, Attachment 2, 22.

Dr McDonald replied to Ms Photinos and said:[44]
…
Regarding my request to access the officer computer and files, this is to access information that has not been requested via an RTI process and therefore the decision of the OIC will not provide the information I seek. I am after my case notes and times such that I can further demonstrate to you my attendance at work on various days in question.

[44] Ibid.

With regard to the swipe card data evidence the decision-maker relied on to substantiate the Allegation on the balance of probabilities, Dr McDonald submits it is critical that the Commission understands that within the hospital environment, including the Perfusion office, in most instances he is not required to swipe his ID card for access to move around or exit the facility or to evidence that he is at work.[45]
[45] Ibid, [17].
Dr McDonald suggests that his swipe-ID history in this regard would not be substantially different to any other member of staff (including the perfusion team). Dr McDonald says that no swipe-ID data shows evidence of him exiting, or being absent from the workplace and notes that he has provided Google Maps data demonstrating he was at work. Dr McDonald says that had he been able to access his work devices when requested, he could have demonstrated this.

Dr McDonald maintains that the available evidence fails to establish 'fraud' on the balance of probabilities.

Dr McDonald refers to Harvey v Walker,[46] where Chief Judge Bowskill QC (as her Honour then was) said:[47]
…
but the 'clarity' or 'cogency' of proof required, in order to induce, on the balance of probabilities, an actual persuasion of the mind as to the existence of the matters of complaint, needs to take account of the seriousness of the allegations.

[46] [2016] QDC 180.

[47] [2016] QDC 180, [9] (citations omitted).

Dr McDonald also cites Mourilyan v James Hardie Australia Pty Ltd[48] where Commissioner Asbury (as her Honour then was) said:[49]
Whether the dictionary definition of fraud or that found in criminal law is applied, the fact remains that the dismissal of an employee on a ground such as fraud, can have a potentially far reaching and catastrophic effect on the employee's future employment prospects, given the connotations of criminal activity associated with such an epithet. An allegation of fraud should not be lightly levelled and conduct of an employee should not be labelled as fraud without clear and cogent proof.
[48] [2010] FWA 9672.
[49] [2010] FWA 9672, [88].
Dr McDonald submits that he has an unblemished work record over 31 years and that there is no reasonable basis for the decision-maker to doubt his written claims of 18 April 2024. Dr McDonald says that the disciplinary process should take into account the employee's overall work record including previous management interventions and/or disciplinary proceedings.
Dr McDonald submits that the Respondent's submission and correspondence has failed to demonstrate how his overall work record has been taken into account in making the decision to substantiate the allegations.

Dr McDonald says that even if his new evidence, including the Google Maps data is not considered, the information available to the Respondent by 18 April 2024 was insufficient to warrant a finding that the Allegation was substantiated on the balance of probabilities.

In explaining why his show cause reply of 18 April 2024 did not contain more information, Dr McDonald submits that he did not believe the Allegation would be substantiated and that his version of events and explanations would be 'so readily refuted'.[50] Dr McDonald said that when he was suspended on 27 May 2024, he realised the gravity of the matter and that it appeared targeted in nature. Dr McDonald said that he did not foresee losing access to exculpatory data but as the suspension was immediate, he did not have the opportunity to gather the evidence to support the statements he made on 18 April 2024.

[50] Appellant's submissions (n 38), [33].

Dr McDonald says that on 20 August 2024, he discovered that his Google Maps data provided an 'essentially complete account' of his presence at work on the alleged dates and that he submitted this data as soon as possible on 27 August 2024.[51]

[51] Ibid, [35].

Dr McDonald is of the view that the additional evidence from Google Maps exonerates him completely.[52] While the Respondent did not acknowledge this new information prior to his appeal, Dr McDonald notes that the Respondent briefly acknowledges their awareness of this evidence in their submissions.

[52] Ibid, [36].

Dr McDonald agrees with the Respondent that the evidence was not submitted in his initial response of 18 April 2024, however Dr McDonald submits that the Google Maps evidence further reinforces the honesty and truthfulness of his original show cause response.[53]
[53] Ibid, [37].

With regard to the AVAC forms, Dr McDonald says that it has never been standard practice within the perfusion department to submit an AVAC when rescheduling a lunch break to the end of the shift.[54] Dr McDonald says that both the past and current Directors of Anaesthesia and Perfusion Services are aware that meal breaks are often skipped, and that staff in these departments generally reschedule these breaks to the end of their shifts.

[54] Ibid, [44].

Dr McDonald says that he has not claimed other members of the perfusion team are responsible for the correct processing of his AVAC form.[55] Dr McDonald says that AVAC forms for the entire department are collected in a single area within the Perfusion Office on the day they are due for processing, they are collectively delivered to the Administrative Officer by someone from the team.

[55] Ibid, [45].

Dr McDonald submits that he has previously provided a copy of his AVAC for one of the three days in question. Dr McDonald says that he believes a copy of the 19 January 2024 AVAC may be on his work computer and that the AVAC for 15 September 2023 was handwritten and so no copy is available to him due to his isolation from the workplace.[56]

[56] Ibid, [47].

Dr McDonald says it is possible some foul play had occurred in the AVACs not being submitted due to unfortunate interpersonal friction with another member of the team.[57] Dr McDonald also submits that he has raised concerns regarding the method of AVAC submission with his line manager, requesting to either individually submit the AVAC or to electronically submit, however the preferred option conveyed to him at the time was to collect all the AVACs in the perfusion office and have them hand delivered to the AO.

[57] Ibid, [48].

With regard to the Respondent's submission that the credit card information provided by Dr McDonald does not carry a time stamp and should be given little weight, Dr McDonald says firstly that the amount listed on the credit card statement is the half price rate for his coffee and therefore indicates that he was using the café during 'half price' hour between 2-3pm.[58] Further, Dr McDonald says that the Google Map data coupled with the credit card data for those two dates demonstrate that he had not left work at the times claimed by the Respondent on those dates.
[58] Ibid, [51].

Respondent's further submissions dated 14 October 2024

On 14 October 2024, the Respondent filed further submissions in response to the Appellant's submissions in reply.
The Respondent submits that the additional evidence submitted by Dr McDonald 'was not before the delegate at the time of their decision'.[59] The Respondent submits that it was 'incumbent on the Appellant to provide the delegate with the information they would like to be considered before the delegate made their decision'.[60]

[59] Respondent's submissions filed in the Industrial Registry on 14 October 2024, [6].

[60] Ibid, [7].

The Respondent submits further that the Dr McDonald has been unable to provide reasons for his swipe card inactivity for instances other than those where the Respondent had accepted his reasoning.[61] Dr McDonald's reasoning with respect to these instances has been canvassed above at paragraphs [66] and [67] of this decision.

[61] Ibid, [10].

The Respondent notes Dr McDonald's concerns about the use of the term 'fraud' and submits that the Allegation can be substituted if the Commission determines that the use of the term 'fraud' is improper.

The Respondent 'respectfully submits that the Commission's role is to review the discipline finding decision, taking into account the information that was before the delegate at the time of their decision. Regardless of the Respondent's views about the new evidence Dr McDonald has produced, the evidence was not before the delegate at the time of their decision.

The Respondent notes that it was 'not until after the decision was made by the delegate that the Appellant has turned his mind to these additional documents'.[62]

[62] Ibid, [9].

With regard to Dr McDonald's submissions about not being granted access to the workplace to obtain evidence to support his response to the Allegation, the Respondent says that no request was made for information that may assist with preparing a response to the Allegation.

The Respondent says that the emails sent by Dr McDonald seeking access to information were sent between 5 June and 30 August 2024 and that this was well after he had provided his show cause response. The Respondent submits that those requests relate to an 'entirely separate matter that is being managed by the Respondent'.[63]

[63] Ibid.

The Respondent concludes by noting that it has accepted Dr McDonald's reasoning in good faith and excluded a number of instances from its finding. However, for most of the remaining instances, the Appellant has not been able to provide the delegate with a reason for the swipe card 'inactivity' and that the delegate concluded on the balance of probabilities, that it was more probable than not that the Appellant has inappropriately claimed for time not worked.[64] The Respondent submits that the discipline finding decision was fair and reasonable.
[64] Ibid, [10].

Appellant's further submissions in reply dated 15 October 2024

On 15 October 2024, the Appellant filed further submissions in response to the Appellant's submissions in reply.[65] The submissions repeat some of the submissions Dr McDonald has already provided but also offer some additional information about various matters.
[65] Appellant's further submissions in reply filed in the Industrial Registry on 15 October 2024.
Dr McDonald believes that the 'entirely separate matter' the Respondent refers to in its submissions relates to an allegation of corrupt conduct following an assessment of the matter by the Ethical Standards Unit.[66]

[66] Ibid, [3].

While Dr McDonald accepts that the Google Maps data was not available at the time of the 'decision', he submits that the data does not fundamentally change the arguments he presented in his 18 April show cause response but further demonstrates that on balance, he was being truthful.[67]

[67] Ibid, [10].

Dr McDonald maintains that he has provided reasons for the swipe card inactivity.

Dr McDonald says that in his show cause response dated 18 April 2024, he requested that the Respondent compare his time sheet activity with the time sheet activity of his colleagues and that this has not occurred.[68]

[68] Ibid, [17].

Dr McDonald also says that other points he has made regarding the circumstantial nature of the swipe card data, his submissions about the balance of probabilities for findings of workplace fraud, alleged contraventions of the Discipline Directive have not been addressed by the Respondent.[69]
[69] Ibid, [20].
Respondent's further submissions in reply dated 23 October 2024
On 23 October 2024, the Respondent filed further submissions in response to the Appellant's submissions in reply.[70]
[70] Respondent's further submissions in reply filed in the Industrial Registry on 23 October 2024.
The Respondent confirms that there are two separate workplace matters involving Dr McDonald, firstly the discipline process subject of the appeal and secondly, an investigation by the Ethical Standards Unit into a separate allegation.

The Respondent submits that the process leading up to the discipline finding decision was fair and reasonable. The Respondent further says that Dr McDonald's requests for work information do not cause the disciplinary finding decision to be unfair or unreasonable because the requests were not before the delegate for consideration at the relevant time.

Appellant's further submissions in reply dated 25 October 2024

On 25 October 2024, the Appellant filed further submissions in response to the Appellant's submissions in reply.[71]
[71] Appellant's further submissions in reply filed in the Industrial Registry on 25 October 2024.
These submissions did not introduce any material information that was not already included within Dr McDonald's previous submissions.
The Respondent articulated, by email to the Industrial Registry, that it had considered Dr McDonald's submissions, but did not consider further submissions to be necessary.

Consideration

I have considered all the submissions and information available to me, even if I do not make specific reference to all of the content of those submissions in these reasons.
The Statement of Reasons is not satisfactory

Dr McDonald's first ground of appeal is that there has been an improper application of the balance of probabilities. For the reasons which follow, I agree.
Clause 9.4(c) of the Discipline Directive requires that 'the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding and state if the disciplinary ground to which the allegation was applied has been established'. Balance of probabilities is defined in the Discipline Directive and reflects the Briginshaw[72] principles:
Balance of probabilities refers to the civil standard of proof. For an allegation to be substantiated on the balance of probabilities, the evidence must establish that it is more probable than not that the alleged conduct occurred. The strength of evidence necessary to establish an allegation on the balance of probabilities may vary according to the:
·        relevance of the evidence to the allegations
·        seriousness of the allegations
·        inherent likelihood or improbability of a particular thing or event occurring
·        gravity of the consequences flowing from a particular finding
[72] [1938] 60 CLR 336 ('Briginshaw').
In considering the content of the Statement of Reasons provided to Dr McDonald, I have also had regard to the authorities he has referred to in his submissions.[73]
[73] Harvey v Walker [2016] QDC 180; Mourilyan v James Hardie Australia Pty Ltd [2010] FWA 9672.
I have read the Statement of Reasons provided to the Appellant along with the decision substantiating the Allegation and making a finding of misconduct. The section addressing 'unusual swipe card activity' acknowledges that the activity data does not confirm an exit from the facility however the decision-maker says it 'does raise concern' and is 'curious' and 'interesting'.[74] The decision-maker appears to acknowledge that there is no direction or requirement that the Appellant uses his swipe card when moving through the facility as this is a direction provided to the Appellant in the Statement of Reasons.
[74] Appellant's Notice of Appeal (n 3), Annexure 1, 6.
The Statement of Reasons would have benefited from the decision-maker addressing the Appellant's show cause submission that similar work practices are being carried out by his colleagues and that the entire department's swipe card activity should be subject of the same level of scrutiny.

I cannot accept that it is safe for the decision-maker to be 'concerned' or find the swipe card data 'curious' or 'interesting' if only Dr McDonald's swipe card data was being considered in isolation. It is not necessary for the decision-maker to tell Dr McDonald who else's data was audited or whether any disciplinary action is being undertaken against others, but it would be appropriate for the decision-maker to inform Dr McDonald of how it was that she came to determine that his swipe card data represented wrongdoing and that she did not believe him.

I do not find that the analysis of evidence or the information provided in the Statement of Reasons demonstrates 'clear and cogent proof'[75] supporting an 'actual persuasion of the mind as to the existence of the matters of complaint'[76] given the serious nature of an allegation of time sheet fraud and a finding of misconduct. It matters not that the proposed disciplinary action is a reprimand rather than a more serious penalty such as demotion or termination. A finding of misconduct pursuant to the PS Act is a very serious matter and one which will remain on Dr McDonald's disciplinary record.
[75] Mourilyan v James Hardie [2010] FWA 9672, [105].
[76] Harvey v Walker, [9] citing Briginshaw v Briginshaw (1938) 60 CLR 336, 361-363; Refjek v McElroy (1965) 112 CLR 517, 521.
Dr McDonald's show cause response states that on 30 of the alleged dates, the data demonstrates that he was still present at work or he has operation records to indicate that he was at work. It is unclear to me from the Statement of Reasons what investigations the decision-maker undertook to consider other available information, for example, operation records or further investigations about the Appellant's work activities and duties throughout the day to determine that the afternoon swipe card data was suspicious. In fact, the Respondent's submissions state only that the decision-maker considered evidence in the form of an audit report of swipe card activity and car park entry/exit and an audit of the Appellant's AVACs.

Dr McDonald's fifth ground of appeal is that the decision-maker did not consider the questionable interpretations of the data provided against him. For the reasons given above, I am not satisfied that the reasons for decision properly explain how the decision-maker formed a view on the balance of probabilities that Dr McDonald is guilty of misconduct.

Other evidence to be taken into account pursuant to s562B(4)(b) of the IR Act

As set out in [26] above, pursuant to s 562B(4)(a)–(b) of the IR Act, the Commission must decide the appeal having regard to the evidence available to the decision-maker when the decision was made; but may allow other evidence to be taken into account if the Commission considers it appropriate.
I am troubled by the fact that when the Appellant produced new relevant evidence that appears to demonstrate that he was present at the workplace, it has not been considered by the Respondent on the basis that it was not before the decision-maker at the relevant time. In my view, the discipline process is not complete until the final decision on disciplinary action has been made and any appeal period has passed or appeal process concluded. Any final decision on disciplinary action could not be safely made while the possibility exists that the disciplinary finding and grounds for discipline may not be made out. Even if the Commission were to confirm the current disciplinary finding, the presence of other new evidence may serve to make any decision on disciplinary action not fair and reasonable and liable to be set aside on appeal.

I believe the Appellant's submission that he provided reasons in response to each of the allegations put to him and that he had expected those reasons would be accepted on the basis of his length of meritorious service with the Respondent. I also accept that at some point after he had provided his show cause response, it became obvious to the Appellant that the matter was more serious than he had initially comprehended. This prompted the Appellant to seek additional evidence to help him to respond to the allegations. While Dr McDonald was seeking this information after he had filed his show cause response, he had not yet received a decision on that matter and I can understand that he believed he may still have a chance to influence the outcome.

Dr McDonald's fourth ground of appeal is that he was denied procedural fairness when he was prohibited from accessing information to inform his defence. While I understand Dr McDonald's frustration at not being allowed to access his work computer, I cannot find that any such refusal makes the decision not fair and reasonable. It may have been a different situation if Dr McDonald had been refused access to his work computer prior to submitting his response to the first show cause notice. However, it appears that requests he made for access occurred after the show cause notice had been submitted (though before a decision was made).

The decision-maker has determined that the appellant is guilty of 'time sheet fraud' and has made a most serious finding of misconduct. Prior to this appeal being lodged by Dr McDonald, he brought the new evidence he had to the decision-maker's attention. The decision-maker chose not to consider this evidence and instead has made submissions that the disciplinary finding decision was fair and reasonable as it was made on the basis of the information the decision-maker had available at the time.

It is not in contention that the decision-maker did not have the new evidence available at the time the decision was being made. However, now that I have taken this new evidence into account, I am of the view that the decision-maker should reconsider the disciplinary finding decision in light of the new evidence provided by Dr McDonald in his submissions in this appeal and also in the correspondence he sent to the decision-maker on 27 August 2024.

Conclusion

Even if the new evidence did not exist, for the reasons set out above from [104] – [113], I am concerned that the decision-maker has not provided sufficient information to the Appellant in the Statement of Reasons. It is appropriate for the decision-maker to consider Dr McDonald's swipe card data in the context of other available swipe card data of people with similar positions to him. Or if this is not to be done, for Dr McDonald to be provided with an explanation of why his information is being considered in isolation. Further, I do not find that concern or curiosity about the data is sufficient to form an actual 'persuasion of the mind'[77] in the decision-maker that a fraud has occurred.

[77] [2016] QDC 180, [9] (citations omitted).

I note that following the first show cause process, 41 alleged irregularities were removed from the decision-making process. It is possible that the list will be even further reduced following consideration of new available evidence and evidence which has always been available to the decision-maker, including other employees' swipe card data, operating notes or reports demonstrating Dr McDonald was at work, Dr McDonald's email or online activities during the relevant timeframes on the relevant dates.

The outcome following reconsideration of the matter by the decision-maker may be that the findings of time sheet fraud cannot be sustained, or that the dates in question are much narrower and do not point to a 'pattern of behaviour'. It may be that the decision-maker determines to substantiate the Allegation on the basis of more robust, cogent and clear evidence. It may be that the matter can be appropriately dealt with through management action. Whatever the outcome, if Dr McDonald disagrees with the decision, he will have an opportunity to appeal it. This reconsideration of the first stage of the process must occur before the disciplinary process is able to continue.

Subsection 562B(4)(b) of the IR Act enables the Commission to allow other evidence to be taken into account for an appeal against a disciplinary decision if the Commission considers it appropriate. For the reasons given above, I consider it entirely appropriate for other evidence to be taken into account. Some of that evidence is available to me in this appeal, however other information such as the swipe card data of other employees, Dr McDonald's email activity, patient records, operating schedules or notes is not.

Dr McDonald's third ground of appeal address proportionality and proper consideration of his human rights. With regard to proportionality, I am not required to determine whether the finding of misconduct was proportionate to the substantiated conduct as I have determined that it was not fair and reasonable for the decision-maker to substantiate the Allegation. However, as discussed above, the finding of misconduct as grounds for discipline is very serious and has the potential to lead to serious consequences for a public sector employee.
With regard to Dr McDonald's human rights, I am unable to find that there has not been a proper consideration of Dr McDonald's human rights. I agree with the decision-maker that a concern for damage to one's reputation does not preclude a decision-maker from making disciplinary findings or taking disciplinary action where such action is warranted.

Dr McDonald's second ground of appeal was that the decision is clearly incorrect. I understand this to mean that Dr McDonald is of a view that the decision-maker could not have correctly arrived at the decision to substantiate the Allegation and make a finding of misconduct on the balance of probabilities. I do not need to consider whether the decision was correct or incorrect. The question before the Commission is whether the decision was fair and reasonable.

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

Orders

I make the following orders:

1.The decision appealed against is set aside.
2.The matter is returned to the decision-maker for reconsideration within 28 days following the publication of this decision.
3.The decision-maker is directed to consider:
· the new evidence provided by the Appellant in his letter and attachments of 27 August 2024 and his submissions in this appeal;
· other information available to the decision-maker including the swipe card data of other employees in a similar position to the Appellant, email activity or other information about the work duties of the Appellant on the dates in question; and

· any other information the decision-maker deems appropriate.

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Citations

McDonald v State of Queensland (Queensland Health) [2024] QIRC 266

Cases Citing This Decision

0

Cases Cited

5

Statutory Material Cited

0

Mr Ken Mourilyan v James Hardie Australia Pty Ltd [2010] FWA 9672

Harvey v Walker [2016] QDC 180

Briginshaw v Briginshaw [1938] HCA 34

[2024] QIRC 266

15 November 2024