QUEENSLAND INDUSTRIAL RELATIONS COMMISSION
CITATION: | McKoy v State of Queensland (West Moreton Hospital and Health Service) [2015] QIRC 120 |
PARTIES: | McKoy, Kerry v State of Queensland (West Moreton Hospital and Health Service) |
CASE NO: | B/2012/2 |
PROCEEDING: | Application to vary or void contract for service and for other relief |
DELIVERED ON: | 21 June 2015 |
HEARING DATES: | 28, 29 and 30 August 2012 15, 16, 19 and 20 November 2012 6 August 2013 3 September 2013 (Appellant's submissions) 25 September 2013 (Respondent's submissions) 2 October 2013 (Appellant's submissions in reply) 10 October 2013 (Oral submissions) |
MEMBER: | Deputy President Bloomfield |
ORDER: | The Application is dismissed. |
| CATCHWORDS: | INDUSTRIAL LAW - APPLICATION TO AMEND OR DECLARE VOID A CONTRACT FOR SERVICE - ALLEGED BREACH OF FREEDOM OF ASSOCIATION PROVISIONS - Onus of proof under Chapter 4 matters - Section 122A - Rebuttable presumption - Different onus under s 276 - Claimed inadequacies in investigation process - restrictions on the working of overtime - Claim for "lost" overtime - Case not made out that contract unfair or should be varied - Respondent found not to have breached Freedom of Association provisions - Application dismissed. |
| CASES: | Industrial Relations Act 1999, Chapter 4, |
| APPEARANCES: | Mr K. Watson of Counsel, instructed by |
Decision
Introduction
This decision relates to an Application by Ms Kerry McKoy (Ms McKoy/the Applicant) in which she seeks relief, and certain orders, pursuant to Chapter 4 - Freedom of Association and section 276 of the Industrial Relations Act 1999 (the Act).
The Application
The Application is in the following terms (non-relevant provisions removed, with set out and numbering altered marginally so as to deliver consistency of style):
"Take notice that I, Susan Moriarty of, Susan Moriarty and Associates, Solicitors of 87 Days Road, Grange, Brisbane being authorised to represent Kerry McKoy ("the Applicant") and institute this Application on her behalf.
APPLY to the Commission for:
1. An order varying the contract of service ('the contract') that exists between Kerry McKoy ("the Applicant") and Queensland Health, Darling Downs - West Moreton District Health Services ("Queensland Health"), as further detailed in this application.
2. The following decision:
(a)that the contract was unfair, harsh or unconscionable or was against the public interest;
(b)that the contract made between Ms McKoy and Queensland Health as referred to in this application be declared partly void; or
(c)that the said contract be amended to overcome its unfairness as set out in this application;
(d)that Queensland Health be ordered to pay an amount of money to
Ms McKoy which the Commission considers appropriate in the circumstances;(e)further or alternatively that Queensland Health be ordered to re-instate the Applicant;
(f)further or alternatively, such other order as the Commission considers appropriate in the circumstances.
3. …
4. Further, I, Susan Moriarty, Solicitor, attach the Affidavits marked 'KMcK - A' and 'WB - A' which sets out the facts and circumstances relied on by the Applicant in support of her application and the proposed relief. The Applicant also relies on the facts set out in her Affidavit filed 12 July 2012 as amended and adopted by her in her oral evidence given on 28 August 2012 in these proceedings.
How the contract is unfair:
(a)The contract is unfair for the following reasons:
(i)it failed to protect the Applicant from retaliation and reprisal by
Mr Brennan;(ii)it failed to provide a suitable mechanism to diligently investigate a complaint made against the Applicant by Mr Brennan;
(iii)it failed to maintain the status quo in respect of the Applicant's employment while the investigation was conducted;
(iv)it failed to provide an opportunity to the Applicant to be a full participant in the investigation.
Consequences for the Applicant as a result of the unfairness of the contract and the conduct of Queensland Health towards the Applicant:
(a)the Applicant has been unilaterally suspended from her substantive position without explanation and in breach of natural justice;
(b)the Applicant has suffered a loss of approximately $25,000 [full details are set out in the Applicant's Affidavit]. The Applicant has suffered consequential loss of salary for the period commencing 18 November 2011. The Applicant's loss is continuing.
Claim under s 120 of the Act
(a)Queensland Health, by its employee Mr Brennan, engaged in 'prohibited conduct' for a 'prohibited reasons' because the Applicant:
(i)has been a member and representative of an industrial association (namely, the Queensland Nurses Union) [a breach of s 104(1)(a) of the Act];
(ii)has the right to the benefit of an industrial instrument and an order of an industrial body [a breach of s 104(1)(h)];
(iii)has taken part in proceedings under an industrial law, in furtherance of Clause 21 of the Nurses and Midwives (Queensland Health) Certified Agreement 2009 [a breach of s 104(1)(j)];
(iv)is a member of an industrial association that is seeking better industrial conditions [a breach of s 104(1)(k)];
(v)is dissatisfied with her industrial conditions [a breach of s 104(1)(l)];
(vi)as an officer and member of an industrial association has done an act that is lawful and authorised by the association's rules to further protect the industrial interests of the association or its members [a breach of s 104(1)(n)].
(b)Such 'prohibited conduct'
(i)injured or disadvantaged the Applicant [in breach of s 104(1)(c) of the Act] (sic - should be s 105(2)(c)); and/or
(ii)discriminated against the Applicant in the conditions on which she was offered a contract of employment [in breach of
s 105(1)(d)] (sic - should be s 105(2)(d)).
(c)Particulars of the 'prohibited conduct' for a 'prohibited reason/s' are -
(i)refusing to consider or offer the Applicant temporary contracts when she was eligible and suitably qualified for such vacancies;
(ii)terminating the Applicant's temporary contract when she was entitled to the continuation of her contract;
(iii)orchestrating a 'file audit', one of the purposes of which was to ascertain if the Applicant could be legitimately suspended from the High Secure Unit roster;
(iv)suspending the Applicant from the High Secure Unit roster at a time when the substance of the allegations or their veracity was unknown and no investigation had been initiated in respect of those allegations;
(v)directing the Applicant to 'show cause' why she should not be disciplined for official misconduct;
(vi)failing to interview the Applicant's witness;
(vii)conducting the show cause disciplinary process without due regard for the detrimental effect on the Applicant's personal and professional reputation, career and livelihood;
(viii)injuring the Applicant by continuing her suspension resulting in a continuing loss of salary in circumstances where the continuation of the suspension is unreasonable;
(ix)failing to appoint the Applicant or recommend the appointment of her to a Grade 6 nursing position at the Kuranda High Secure Unit.
(d)The respondent through its employees engaged in the conduct referred to in the preceding paragraphs because the Applicant:
(i)was a member of a Union; and/or
(ii)held an official position in that Union; and/or
(iii)acted in accordance with Union directions; and/or
(iv)acted as union advocate for union members during negotiations and discussions with District management; and/or
(v)was dissatisfied with her industrial conditions, namely her dissatisfaction with the refusal to consider the Applicant for temporary contract positions dissatisfied with the refusal to allow her to work in her substantive position and namely her dissatisfaction with management's view that nurses deployed to the redeveloped High Secure Unit should be properly trained and credentialed in serious mental health disorders as a prerequisite to working with patients exhibiting serious and violent mental health disorders.
(e)Further, Queensland Health by its employee Mr Brennan injured or disadvantaged the Applicant and/or discriminated against the Applicant in breach of s 105 [as particularised herein] of the Act by; -
(i)attempting to terminate the Applicant's temporary contract of employment;
(ii)suspending the Applicant from High Secure Unit rostering;
(iii)reprimanding the Applicant for her email to him seeking urgent details of the allegations made against the Applicant;
(iv)refusing to revoke the Applicant's suspension when it was reasonable to do so.
(f)In addition to her reinstatement, the Applicant seeks compensation for the conduct which has disadvantaged her including compensation for the mental distress suffered by her."
Witnesses
Called by Ms McKoy
· Ms Kerry McKoy - a Registered Nurse who holds qualifications in General and Psychiatric Nursing, a Bachelor of Health Administration and a Law Degree.
· Mr William Bos - a Registered Nurse/Clinical Nurse and husband of Ms McKoy.
· Ms Lynette Glubb, a Nurse Unit Manager in the High Secure Unit of The Park Centre for Mental Health (The Park).
· Ms Harriet Johansson, a Registered Psychiatric Nurse and Clinical Nurse in the Daintree High Secure Unit at the Park.
Called by Queensland Health
· Ms Nina Barnett, Acting Director, Workplace Relations, West Moreton Health Services District (the District).
· Mr William Brennan, Acting Director of Nursing at The Park, who commenced in that role on 20 October 2010.
· Ms Elizabeth Edge, Nursing Director of Business Unit One, High Secure Unit, which encompassed Extended Treatment and Rehabilitation, the Medium Secure Unit and the Dual Diagnosis Unit (DUU) at the Park.
· Ms Marie Finley, a Clinical Nurse Consultant at the Park.
· Ms Pamela Lane, District Chief Executive Officer (CEO) of the District.
· Mr Thomas Meehan, Nursing Director for Service Evaluation and Research.
· Dr Darren Neillie, Clinical Director of High Secure Inpatient Services (HSIS).
· Mr Michael Schilling, a Nurse Manager at the Park.
· Ms Kathryn White, a Senior Workplace Relations Consultant for the District.
Evidence on behalf of Ms McKoy
Ms McKoy's background and experience
In 1995 Ms McKoy relocated to Queensland from Victoria, where she held a Senior Psychiatric Nurse position within a public health agency. She commenced employment as a base grade Registered Nurse at a facility now known as The Park Centre for Mental Health. The Park is an institution which accommodates patients who have major mental illness profiles giving rise to actual, potential and latent violence against themselves, each other and staff.
After a relatively short period of time at The Park she was promoted to Unit Manger of Barrett Acute Unit where she worked (for an undefined time) until the Unit was about to be decommissioned. She then became the Unit Manager of the Acute Unit of Logan Hospital for almost a year but before returning to Forensic Services where she held the positions of Nurse Manager and Clinical Nurse Consultant. In order to expand and consolidate her experience in Forensic Nursing she then worked in the Forensic Community Service which provided education consultation and liaison services across the State. After developing a professional interest in the interface between psychiatric services and the justice system she enrolled in a Law Degree, with support and assistance from Queensland Health. During the latter part of her Law Degree she worked as a Clinical Nurse in the Daintree Admission Unit High Secure Services (Daintree) at The Park in order to accommodate her study commitments. After completing her degree she continued to work part-time in Daintree in order to complete the mandatory Graduate Diploma in Practical Legal Training. After completing the Diploma in 2004 she was admitted to practice as a Solicitor and resigned from Queensland Health to work in this role.
Evidence in support of the Application
In 2008, while running her own legal practice, Ms McKoy returned to The Park as a casual Registered Nurse and became an active member of the Queensland Nurses' Union of Employees (QNU), being elected Secretary of the Wacol Branch of the Union on
8 February 2010. Although selling her legal practice before the global financial crisis in 2008 she continued to work part-time as a solicitor for the same firm for approximately 18 months and also continued working as a casual at The Park, working a maximum of four days a week as permitted by the relevant Award.
Ms McKoy said that "during this period" (which was not particularised) she made it known to Queensland Health that she was available to undertake temporary full-time contracts as the filling of permanent positions was on hold owing to the imminent
re-development of the High Secure Service. However, she said, she was overlooked for temporary employment contracts notwithstanding her qualifications, experience and endorsement. She claimed that staff to whom temporary contracts were offered more often than not did not even hold a formal qualification in psychiatric nursing or, indeed, have any experience in forensic nursing.In approximately August 2009 she was "finally able to formally apply, and have an interview that could be opened to Public Service scrutiny" and was appointed to a nursing role on a temporary full-time contract basis. Her position, which she understood to be one of approximately 13 in a similar position at this time, was in the nursing resource pool (also known as the Central Resource Unit (CRU)) at The Park. From this pool she was allocated to emergent vacancies on a day-to-day basis and was usually allocated to vacancies in the High Secure Unit of The Park.
After receiving a limited number of temporary full-time contracts over the previous two or so years, Ms McKoy complained to Ms Edge on 31 August 2010 about the "inequitable and non-transparent process of awarding short term contracts" in that placement was usually by way of a "tap on the shoulder", with "no apparent correlation between the skills, qualifications, experience and ability of the person being offered the contract in relation to the position available." Less than 10 minutes later Ms Edge responded. After acknowledging Ms McKoy's email, Ms Edge advised that the issue raised by Ms McKoy had been clarified in a meeting with QNU the previous day and offered to meet with
Ms McKoy a day or so later to address her concerns. Shortly afterwards Ms McKoy was meritoriously selected to a fill a temporary contract against one of 13 permanent unfilled positions.On 18 June 2010 Ms McKoy attended a meeting between nursing staff and doctors concerning a young, fit, strong male patient ("S") with a history of homicide who was placed in Kondalilla Unit. Nursing staff had reported S as deteriorating over previous weeks with his increasing paranoia increasing the risk of violence for nursing staff looking after him. He had, at that time, been in seclusion for approximately eight days. His initial seclusion was under the authority of the Clinical Nurse (CN) in charge,
Ms Johansson.When S's treating psychiatrist arrived at the Unit to interview S shortly after he was placed in seclusion, the doctor "was instructed" by CN Johansson not to enter the seclusion room until extra nursing staff could be arranged to ensure there were sufficient staff numbers to contain the environment should S become violent. However, the doctor ignored her instructions and entered the seclusion room, walking close to S and standing in a corner of the room where he could not easily egress. S then attacked the doctor who fell to the ground, with S reining blows on him, pulling his hair and scratching his face. It was only after the duress system was activated and additional staff arrived from other Units that the doctor and S were separated. Ms McKoy said the doctor's actions, by refusing to act in accordance with the instruction of the nurse in charge of the Unit, put the staff at extreme risk and breached occupational health and safety standards.
After there was some disagreement between the treating psychiatrist and Dr Neillie about the best way to manage S, a meeting was arranged on 18 June 2010 between Dr Neillie, the psychiatrist concerned and nursing staff to plan the management of patient S over the coming weekend. This was because weekends can be a time when there is an increased risk of staff being injured as there are less staff members available to participate in any duress situation. Ms McKoy said the doctors decided to hold the meeting away from the ward, which meant that very few nursing staff could be involved in the discussion about the management of S. Ms McKoy was asked by nursing staff to attend as a Union support person to advocate workplace health and safety issues in the discussions. When the management plan for S was being discussed the issue of how interventions would be undertaken to keep nursing staff safe was also raised. Ms McKoy said the psychiatrist "reacted angrily", stating words to the effect that:
· nurses performed their role knowing there was a risk and they must be prepared to be assaulted or injured;
· he had not suffered a serious assault by S and "had taken one for the team" because he knew S would assault him, which is why he stood where he did;
· his relationship with S had minimised the severity of his beating and he could have controlled the situation if staff had not intervened;
· patient S should not have been secluded in the first place without his consent; and
· patient S's treatment was his only concern (his emphasis), not staff safety.
Ms McKoy said that Dr Neillie did not disagree with the psychiatrist or in any way acknowledge that the expressed Union views were valid, which she found to be extremely disappointing and concerning.
After the meeting, the QNU Wacol Branch held an urgent meeting "to discuss the extremely concerning and potentially dangerous views" of the psychiatrist. This culminated in the President and Vice-President (Mr Bos) of the Branch meeting with
Dr Neillie on or about 22 June 2010 to discuss members' concern about the psychiatrist and to table a formal letter outlining the specific concerns of QNU's members.Ms McKoy said the re-development of the High Secure Service at The Park was marked by great controversy and significant differences between staff themselves and between management and staff about the underlying philosophical and resourcing direction of psychiatric services to patients. These differences included fierce disagreements about the qualifications which nurses should have in performing the duties of nursing positions in the redeveloped facility. She also expressed the opinion that her work and experience as a Solicitor made her an effective and well informed support and resource person for nursing staff who actively favoured the recruitment of highly-qualified and endorsed mental health nurses, as well as a strong advocate for workplace health and safety.
In her role as Secretary of the QNU Wacol Branch she was part of a group of Union representatives - which included her husband - who met regularly with management of the hospital to discuss the re-development of High Secure Services and, in particular, the staffing profile of the proposed High Dependency Unit (HDU). It was in this role that she first met Mr William Brennan, in the latter part of 2010, when he commenced his position of Acting Director of Nursing. In terms of the staffing profile of the proposed HDU, Ms McKoy said, QNU pursued the recruitment of appropriately qualified and experienced mental health nurses whereas management, including Mr Brennan, did not believe that qualifications or experience in forensic/psychiatric nursing should be a
pre-requisite for employment.As part of her role as Branch Secretary, Ms McKoy also participated - with her husband as the then Vice-President - in preparing a submission to a draft Business Planning Framework (BPF) co-authored by District nursing staff Marie Finley and Darryn Leahy on behalf of the Redevelopment Team at The Park, which was released in mid-October 2010. Ms McKoy said the QNU position, as set out in the submission, provoked a response from the two co-authors who immediately and publically resigned from the Union. "Mr Bos and I had been personal friends with Ms Finley over a number of years but this friendship was immediately severed." "Ms Finley was subsequently appointed to the new position of Clinical Nurse Consultant of the High Dependency Unit.".
At the end of 2010 Ms McKoy also chose to resign from her position in the Union owing to the demands of working both as a nurse and as a Solicitor. Nonetheless, she said, she continued to agitate and press for QNU's position to be respected and considered in the redevelopment.
On 29 March 2011 Ms McKoy made arrangements through Mr Brennan's Secretary to meet with him on 1 April 2011 to discuss a management-initiated change in her published roster in Kondalilla Unit, for the period of April to May 2011, to a roster in Franklin Unit. However, when she attended Mr Brennan's office on the appointed day she was told by his Secretary that he was on an accrued day off. "I had received no communication advising me of his absence or unavailability".
On the same day she noticed that her name had been crossed off the Kondalilla roster and replaced with another nurse's name. The Nurse Practice Coordinator advised her that he had no idea where her next placement would be but that Mr Brennan had advised him that he was meeting with her on 1 April 2011 (i.e. that day). She then spoke to a Nurse Manager, Mr Bryce, about whether she would be recommencing in the nursing resource pool but was informed that her contract was being terminated and she was being returned to the casual pool. When she queried why she was the only merit-selected nurse on contract to be terminated, when all other merit-selected nurses' contracts were being extended to the end of May, Mr Bryce replied to the effect that a decision had been made by Mr Brennan not to extend her contract in preference to others. However, he could not elaborate on how or why the decision to terminate her contract had been made by
Mr Brennan. In the absence of Mr Brennan, "who failed to honour his appointment with me", she was left with no choice but to lodge a grievance.Subsequently, she met with Mr Brennan and Mr Bryce on 4 April 2011. Mr Brennan told her he believed her position was temporary against a vacancy in Kondalilla Unit and that the occupant was now returning to that position. In response, she told Mr Brennan she had been merit-selected on a temporary full-time contract against a permanent vacancy as a result of which Mr Brennan asked her to provide him with the relevant paperwork "to prove this". Mr Brennan also told her that on the basis of her grievance she could continue to work in the nursing resource pool until the matter was cleared up. Ms McKoy also claimed that she received no further information in relation to her grievance until
7 June 2011 when Mr Meehan, who was acting as Director of Nursing in the absence of Mr Brennan, asked her to attend a meeting to officially resolve her grievance.Ms McKoy said she was never given any valid reason why she was singled out for termination of employment. "Of the 13 staff who were employed on temporary contracts I was, to my knowledge, the only one who held a union role. I believe that the reason that Nursing Management, comprised of Mr Brennan and Mr Bryce, attempted to terminate my contract was that they had been lobbying for staff on contract to be in a closed-merit process to assess new positions for the HDU."
Ms McKoy said the above matter occurred in close proximity to the recruitment process initiated to fill vacancies in the new HDU, in which she was successful in obtaining a full-time permanent Grade 5 Registered Nurse position (which she was to take up in approximately mid-January 2012 when the new High Secure Service was scheduled to open), after unsuccessfully applying for a Grade 6 position. In this respect Ms McKoy opined that because Ms Finley was on both interview panels "I was very doubtful I would be a welcome applicant given Ms Finley's response to the BPF review done on behalf of QNU Wacol Branch members. I knew that she had taken our response as a personal affront but I have always been professional in my dealings with staff, even if they may be a circumstance where there is not mutual regard.".
Ms McKoy attended a meeting on or about 3 August 2011 with Ms Finley and Ms White, in company with her husband, to receive post interview feedback about her non-selection to a Grade 6 position. In the course of the interview (which she taped) Ms McKoy asked a number of questions about what weighting or consideration had been given by the Selection Panel to a number of factors she identified, which included:
· her qualifications and significant experience working in a forensic service;
· her law degree;
· why her previous experience and qualifications were not seen by the Selection Panel as constituting some "advantage" to her in her Application; and
· whether anything adverse was said in relation to her or her performance in past roles by any person and/or member of the Panel.
Ms McKoy also asked Ms Finley if the three other members of the Panel were aware she had recently severed their friendship and resigned from the Union in response to the reply she had submitted on behalf of the QNU to the draft BPF and whether this had been discussed as a potential conflict of interest, on the part of Ms Finley, in the selection and recruitment process for the Grade 6 positions. Ms Finley said she was "100% sure the Chair of the Panel was" and then admitted, when asked, that the other two panel members were also aware of this. However, Ms Finley did not believe it was the basis for a conflict of interest and said the issue had not been discussed amongst the panel.
Ms McKoy also claimed that one of her referees (who was not called to give evidence) told her that when he was contacted "he was asked about the meeting of 18 June 2010 and whether it was an example of me causing dissension within the multi-disciplinary team." Her referee "told me that he had advised the panel that I was acting as a union advocate for the staff in this situation.".
A subsequent Appeal against her failure to be selected for one of the Grade 6 positions was dismissed for technical reasons (which Ms McKoy did not cavil with).
At about 9:41am on Friday 18 November 2011, during a period of annual leave which commenced on Monday 24 October 2011 and was due to end on Sunday 20 November 2011, Ms McKoy received a phone call from Mr Brennan's Secretary inviting her to attend a meeting with him at 3:00pm on the following Monday. The Secretary expressed her sorrow that the meeting had to be at this time, as it required her to attend in her own time after the completion of a shift, but it was the only time that all the relevant people could attend. The Secretary said that all she knew about the meeting was that Mr Brennan had said that it was in relation to "clinical concerns" with her practice. She could not provide any further detail. As such, Ms McKoy requested the Secretary to provide an Agenda for the meeting prior to her agreeing a time for it to be held. When she had not heard back from Mr Brennan's Secretary by approximately 10:40am she tried to contact Mr Brennan on his mobile phone via the hospital switchboard. After being told he was unavailable she left a request for him to call her as soon as possible.
At approximately 12:25pm that afternoon she received a call from Mr Brennan and expressed her concern to him about the unexpected phone call she had received from his Secretary. She recalled Mr Brennan saying words to the effect "I do not want to alarm you and it's nothing to worry about, but a clinical review had brought up a likelihood that you changed a patient's observations on your own authority". Ms McKoy told
Mr Brennan that she had not been in charge of a shift for months and was not in a position where she would be able to do this and "in any case, I would never do this without the authority of a doctor, the Nurse in Charge of the Unit or in accordance with the requirements of the Mental Health Act". When she asked Mr Brennan for specifics in relation to the allegation he told her that he did not have the details at hand. He then went on to inform her that she was suspended indefinitely from any duties in any High Secure Unit pending resolution of the allegations. She again requested to be provided with all of the details so that she could deal promptly with the issues, which he agreed to do.Ms McKoy said that she was in shock, after the phone call, over the allegations and, in accordance with her practice, made notes of her phone call with Mr Brennan. On the following day she sent him an email summarising the call and her concerns in relation to the matters raised. In the course of her email Ms McKoy requested Mr Brennan to reverse his decision not to allow her to work within High Security Services "whilst natural justice is afforded to me, and I am able to properly respond to the issue of concern. To ban me from working in an area states that there is a belief that I may be a risk to patients' immediate health and safety and this is just preposterous… I request you provide to me the full and complete information that has formed the basis for a negative inference to be drawn in relation to my practice by Monday 21 November 2011 at 5pm. This will allow me to prepare a sworn statement to deliver to you on Tuesday 22 November 2011, in the form of a meeting if you so require… My final concern is that such a heavy handed response may be part of a pattern of ongoing discriminatory treatment and is an attempt to discredit me. I request that you provide a response to me in relation to this important concern."
To her "dismay" Mr Brennan told her in his email response, dated 22 November 2011, that he considered her email intimidating and also confirmed her indefinite suspension. In the course of his response Mr Brennan stated "I can appreciate that you may have concerns and would like things to be dealt with in a timely manner, however, I would also like to remind you of your obligations under the code of conduct, specifically respect for persons. I did not appreciate the tone used in your e-mail or what I perceive to be an attempt to intimate (sic - should be intimidate) me regarding my decision and your request of information by this afternoon."
By letter dated 22 December 2011 Ms Lane asked her to 'Show Cause' why she should not be disciplined for official misconduct in relation to the allegation that "On
1 September 2011 you did not undertake Continual Observation for a high-risk patient, UR 031987, and did so without the authority of a Medical Officer and/or the
Multi-disciplinary Team."By way of letter dated 28 December 2011 (apparently received by Queensland Health on 6 January 2012) Ms McKoy responded to the allegation. In the course of her response she said (emphasis in each instance is by Ms McKoy):
· the patient concerned (referred to as "N") is a young, fit, muscular man in his 20's with a significant history of violence and assault;
· from the commencement of her Continuous Observations (C/Obs) N was extremely aggressive and screamed threats to her as she sat at the window of the door to his exclusion room;
· N threatened to break out of his room and threatened, in obscene language, that he wanted to rape, sodomise, torture and kill me;
· N proceeded to throw his body weight constantly at the door in an effort to break the lock on the door and the sustained physical assault on the door resulted in the door and its lock moving in a manner that was indicative that the door lock's structural integrity was at risk;
· I believed N's threats that if he could get to me he would carry out his threats;
· I alerted CN Johansson to the movement in the door who, after witnessing the same movement, concurred with her assessment that the lock may not hold if the level of assault on it was maintained for a lengthy period;
· CN Johansson decided that N would be continuously observed from the window at the entry door to the Seclusion Suite and the window of the passage which was the second direct entry to the seclusion room of N until 2200 hours and C/Obs were ceased, and/or until he had settled;
· it should be noted that these were standard points for continuous observation of N at times when staff were unable to remain at the usual point of observation at his door eg, when he used the bathroom on a daily basis, or when the seclusion suite lounge was being utilized by another patient;
· at no time was the door to N's room not observed during the period of C/Obs. The screaming and banging against the door continued and the movement of the door and N's head, arms and upper body banging on the glass observation panel could be observed from the position described earlier;
· nursing staff entered the Seclusion Suite every 15 minutes to speak to and view N's condition in entirety at his seclusion door and then retreated back to the safety of the stated alternate observation positions;
· I understand that CN Johansson described the above events in full to Clinical Nurse Consultant Marie Finley on or about 2 September 2011 and told her that C/Obs had been maintained at all times in a manner that ensured patient and staff safety while attempting to de-escalate his violent and aggressive behaviours;
· at no time did I change or not undertake C/Obs of patient N on 1 September 2011 as alleged. At all times on the shift in question I undertook my duties at the direction of CN Johansson, including the manner of C/Obs to be maintained;
· the above facts and circumstances could and should have been verified by Mr William Brennan simply by speaking to the Nurse in Charge of the shift, CN Johansson, prior to making serious allegations of professional misconduct against me.
On 27 January 2012 Solicitors for Ms McKoy wrote to Ms Barnett, as the contact person named by Ms Lane in her letter (above), to inform her they held instructions to the effect that if Ms McKoy's suspension was not revoked by close of business on Monday
30 January 2012, and she was not provided with full reimbursement of her lost salary entitlements, they were to commence proceedings in the Queensland Industrial Relations Commission (QIRC) seeking the appropriate Declarations and Orders for compensation under Chapter 4 of the Act.On 30 January 2012 Ms Lane replied to the solicitors advising them:
· she would appreciate receiving a copy of the statutory declaration by CN Johansson (completed on 26 January 2012), referred to in their correspondence, "so that I can consider all relevant information when determining the right course of action to take in this matter";
· her understanding of the direction given to Ms McKoy was that she would not be rostered in the High Security Inpatient Service (HSIS) until the matter had been resolved;
· she was not aware of the lost salary entitlements referred to because
Ms McKoy was being paid her ordinary hours with relevant shift penalties. Nonetheless, if Ms McKoy could provide some information around what she was claiming then Ms Lane would endeavour to resolve that situation in line with Queensland Health's statutory requirements.It was not until 20 February 2012 that Ms McKoy's solicitors responded to Ms Lane's correspondence. In the course of their letter they complained that CN Johansson had not been interviewed nor asked to provide a statement in relation to an allegation "which prompted the immediate suspension of our client with consequential loss of income to her". They also complained that Ms Lane's letter did not address their client's continuing income loss, "particulars of which will be provided in our client's Application to QIRC, a sealed copy of which will be served on the District in due course.".
By way of letter dated 22 February 2012 Mr Lane provided a detailed response to the letter from Ms McKoy's solicitors dated 20 February 2012 as well as to her formal response of 6 January 2012. In the course of her correspondence Ms Lane highlighted a number of differences between matters raised by Ms McKoy and other material then before her, including:
· a Report prepared by Mr Meehan of a review he had undertaken of the patient file notes of N and the Daintree Ward Report Book, respectively;
· the nature of the C/Obs undertaken by Ms McKoy as compared to that specified in a mandated Procedure relating to observation of patients at The Park;
· Mr Meehan's finding that there was no evidence in either the patient file or the Daintree Ward Report Book of there being other "standard points for continuous observation of N other than immediately outside of the seclusion room door"; and
· the need for Ms McKoy to be provided with an opportunity to review all additional information and provide any further response she considered relevant before any determination could be made in relation to the allegations.
Although the evidence does not identify a precise date, it appears that Ms McKoy was allowed to resume duties, without restriction, in the HSIS soon after 2 April 2012. This followed dispute conferences in QIRC on 15 and 27 March 2012 (which did not settle the matter).
Ms McKoy said "this issue has cost me personally, professionally and financially. I am one of the most qualified and experienced nurses in Queensland in my field. For months during this matter I had virtually no access to overtime while other nurses in High Secure Services were accessing 60 hours per fortnight. This was a heavy financial detriment incurred during my suspension. I have incurred significant financial cost in employing legal representation and filing an Application with QIRC." She also said that during her "suspension" she only worked overtime for approximately 40 hours in total.
Later (through Exhibit 8a) she reported having worked 80* hours overtime between
25 November 2011 and 27 March 2011, inclusive. By comparison, six Registered Nurses who worked in Kuranda Unit HSIS for the four week period 6 February 2012 to
4 March 2012 worked: 42, 115, 116, 121, 128 and 144 hours overtime, respectively. Therefore, using an average of 120 hours per month of missed overtime (based upon the above comparatives) Ms McKoy claimed she had missed 520 hours of overtime in the relevant period, which equated to an amount of $37,192.545. [*Note: Queensland Health disputes this figure and asserts Ms McKoy worked 96 hours of overtime in that period.]
Mr Bos said there was significant involvement by the QNU Wacol Branch in working to ensure that Nurses recruited to the new High Dependency Forensic Unit were appropriately qualified and experienced to work in what would be the highest risk area for occupational violence and potential injury. "The use of inadequately qualified and experienced nurses had increasingly become a significant issue for the Union in the existing Units of The Park. Management and the associated Redevelopment Team were extremely resistive to the QNU Wacol Branch stated position that Nurses must have appropriate qualifications and experience in Psychiatric and Mental Health Nursing".
After strong lobbying by QNU and the Wacol Branch members, who were concerned that key stakeholders - such as nurses, who would work in the proposed new High Secure Unit - were not being consulted, Mr Bos was seconded, on or about 20 October 2010 (until about 18 November 2010), to a position for two days per week to develop a QNU response to the draft BPF. In conjunction with his wife, Ms McKoy, he prepared a comprehensive submission in response to the draft BPF on behalf of QNU Wacol Branch. In response to the Union's comments each of Ms Finley and Mr Leay, the co-authors of the draft BPF, immediately resigned from the QNU. The draft BPF was never released and neither management nor the Redevelopment Team acknowledged receipt of QNU's submission. Ms Finley, who had been a personal friend of he and his wife for a number of years, "immediately broke off her friendship with us".
Ms Glubb said Mr Brennan's decision to exclude Ms McKoy from working in the High Secure Unit in late 2011 had not been communicated to the management group generally, including herself as a Nurse Manager. On 20 January 2012 Ms McKoy indicated she was available to work overtime in circumstances where The Park, as a whole, was experiencing great difficulty in sourcing staff to work on the day in question. On the basis Ms McKoy had been rostered to the High Secure Unit for the previous five days, whilst completing her orientation to the new Kuranda Unit, she (Glubb) contacted
Ms Edge to confirm the appropriateness of offering Ms McKoy an overtime shift.
Ms Edge opined that because Ms McKoy had been working in the High Secure Unit and because there had been significant difficulties in filling vacancies, she could see no reason why Ms McKoy should not be offered an overtime shift. However, Ms Edge said she would contact Mr Meehan, as the Acting Director of Nursing, to seek his advice and would get back to her if there was some concerns. A short while later Ms Edge phoned and advised Ms Glubb that she had left a message on Mr Meehan's phone to advise him of her decision to allow Ms McKoy to work overtime.Upon commencing her afternoon shift on the following day Ms Glubb received advice that Mr Meehan had advised that, based on instructions from Mr Brennan, Ms McKoy was not authorised to work in the High Secure Unit, she was aware of the reasons, and her current overtime shift was to be cancelled. Nonetheless, because Ms McKoy had already commenced work, she was allowed to complete her shift.
Ms Glubb also said that in her role as the after-hours Nurse Unit Manager she was responsible for attending to human resource allocations. This included filling vacancies by staff undertaking overtime. She claimed that "at no time was there any formal notification (to) the after-hours office in regard to the specific limitations on Ms McKoy's roster". She also said that because of the fact the High Secure Unit was "operating essentially with a closed roster, it was not unusual for some of Ms McKoy's peers to be working up to 60 hours of overtime per fortnight during the time Ms McKoy was excluded from working in the Unit".
Ms Johansson said she had been employed at The Park for over 30 years and had worked in Secure Forensic Inpatient Services since 2003. Ms McKoy was the Nurse Unit Manager and her line supervisor when she worked at Barrett G Acute Psychiatric Mission Unit in 1989 and the Clinical Nurse when she (Johansson) worked with her elsewhere between 2002 and 2004. Ms Johansson said she had been promoted to Clinical Nurse in High Secure Services in 2007. After Ms McKoy returned to employment at The Park in a casual nursing position in 2008 she (McKoy) reported to her in both Kondalilla and Daintree Units as the Clinical Nurse in charge of the shift.
Ms Johansson said she was the Clinical Nurse in charge of the afternoon shift in Daintree on 1 September 2011. During that shift both of the seclusion rooms in the Seclusion Suite were full and, according to her recollection, there were at least three other patients secluded in their rooms. The level of disturbance in the Unit was particularly high after one of the patients attempted to stab another patient during the evening meal. One of the patients in seclusion was N. At the time Ms McKoy commenced her rostered C/Obs (at 2100 hours) N was roaring loudly, making threats and throwing his whole body weight at the door of his seclusion room. Although Ms Johansson had recently commenced as a Clinical Nurse in Daintree she was well aware that N had been extremely disturbed for many weeks and that this type of behaviour was not unusual for him.
When Ms McKoy alerted her to the pronounced movement of the door to the seclusion room she agreed that the lock might not hold if N continued his sustained assault on it. Ms Johansson said this particular door had, by this time, been subjected to many weeks or months of pounding by N and "I was aware that there had been occurrences where seclusion doors at The Park had given way as a result of aggression by patients".
Because there was no option to move N to any other exclusion room "I made the decision that to ensure safety, continuous observations would be done from the corridor adjoining the seclusion suite and/or the seclusion lounge door as a full visual observation of the patient's head and shoulders could be undertaken from either position while he was banging on the door. I did not see this as an unusual or out of the ordinary decision as the role of a Clinical Nurse is to manage the Unit to 'ensure the safety of all'".
Ms Johansson took over the C/Obs for a period of about 15 minutes from Ms McKoy as she felt that the latter needed a break due to the level of noise she had been subjected to. "I initially sat in the corridor outside the patient's room. That stimulated his distress and he increased his assault on the door, and the likelihood that he would injure himself, so I moved to the door of the seclusion room suite. N did not cease banging on the door until after 2200 hours…"Ms Johansson said that Ms Finley approached her on or about 2 September and asked if Ms McKoy had walked off her C/Obs on N. "I replied 'No' and explained that I had moved Kerry to the outer door because the door to N's seclusion room was showing too much give, and whilst N was standing bashing on the door he was within view of the C/Obs Nurse outside the door". During November 2011 Ms Johansson became aware that Ms McKoy had been banned from working in High Secure Services, supposedly because she changed a patient's level of observation. Toward the end of December
Ms McKoy advised her that she had received an allegation of alleged misconduct which concerned a shift they had both worked on 1 September 2011. Ms Johansson said that no one from management (other than Ms Finley) spoke to her about this shift or the allegations. Although Ms McKoy told her in December 2011 there was going to be an investigation it was not until 31 January 2012 that she was interviewed by Ms White.The submission on behalf of Ms McKoy
Relying on the above evidence Counsel for Ms McKoy, Mr K. Watson, submitted that Ms McKoy had been injured in her employment and/or disadvantaged and/or treated in a prejudicial manner, because of a prohibited reason or reasons, in the following respects:
· the Respondent's failure to award her temporary contracts between 2007 and 2010;
· the Respondent's failure to renew her temporary contract on or around 1 April 2011;
· the Respondent's failure to recommend her for a Grade 6 nursing position; and
· her treatment in the aftermath of the incident on 1 September 2011.
Failure to be given temporary contracts
Mr Watson submitted that, apart from some 10 weeks of temporary contracts, Ms McKoy was overlooked, as a casual nurse, for temporary contractual employment "during the relevant period between 2007 and 2010" when others, without her qualifications, were offered temporary contracts and this was because she was a Union member (which amounts to an injury in employment for the purposes of s 105(2)(c) of the Act). The evidence said to underpin this submission is recorded at paragraphs [6] to [8] above.
He also asserted that because Queensland Health could not point to any evidence where Ms McKoy was not offered temporary contracts for any reason other than a prescribed reason, it had failed to discharge the onus placed on it under s 122A of the Act (see below).
Failure to renew Ms McKoy's temporary contract
Notwithstanding that her temporary contract was subsequently extended after she lodged a grievance with respect to Mr Brennan's conduct on or about 1 April 2011, Ms McKoy's evidence at paragraphs [18] to [21] above was relied upon to underpin a submission that "the fact remains that the Applicant was either injured in her employment or was disadvantaged by the initial information conveyed to her 'because the area she had previously been rostered to work in was changed'".
It was also highlighted that Ms McKoy's evidence was to the effect that she was the only one of the 13 nurses who had been merit-selected against a permanent position to have not had their temporary contract extended.
Failure to be recommended for a Grade 6 nursing position
On behalf of Ms McKoy, Mr Watson submitted that the interview and selection process for the Grade 6 nursing positions was a collegiate process and that where there is "polarity of decision makers than all must join in the decision based on proper grounds and anyone who is infected with a proscribed reason will affect the conduct and decision of the whole"[1]. It was also submitted that insofar as Dr Burton (one of the panel members) is concerned, no Affidavit or other evidence has been filed on his behalf and, as such, he has not discharged the onus placed upon him under s 122A of the Act.
[1] IW v City of Perth (1997) 191 CLR 1 at [48], per Gummow J.
Mr Watson also strongly argued that Ms Finley's evidence (below) should not be accepted ahead of that given that by Ms McKoy and Mr Bos in areas where their evidence differed. In this respect, considerable focus was placed on Ms Finley's evidence that her friendship with Ms McKoy and Mr Bos extended up until 3 August 2011 - the date of the feedback session concerning Ms McKoy's non-selection for a Grade 6 position. In this regard, it was submitted that Ms Finley's evidence on this point is undermined by:
· her failure to challenge Ms McKoy during the feedback session when
Ms McKoy spoke about a previous friendship she and Ms Finley used to enjoy;· the lack of any explanation as to why the note Ms Finley composed after the feedback session contained words to the effect that she confirmed to
Ms McKoy "the panel's awareness of a previous friendship"; and· Ms White's evidence to the effect that the reason Ms Finley asked her to sit in on the feedback session was because:
○she was not comfortable meeting with Ms McKoy and Mr Bos alone on the basis she and Mr and Ms McKoy "had formally been close friends"; and
○she was concerned that Ms McKoy would raise issues relating to their friendship at the meeting and would not feel comfortable responding to those questions.
In addition, it was also argued "the transcript of the meeting on 3 August 2011 discloses that what Ms Finley said at the meeting was that she had made the Panel aware that it was the applicant working for the Queensland Nurses Union, the fact that there had been differing submissions in relation to the HDU and the fact that Ms Finley had resigned from the Union which were matters that she (Finley) made the Panel aware of.". However, this was inconsistent with Mr Schilling's Affidavit where he stated that the Panel never discussed Union membership or activity at any stage during its deliberations concerning the Grade 6 positions.
Finally, Mr Watson argued "even if the Commission does not accept the submissions with respect to collegiate responsibility, the fact remains that by discounting Dr Burton and Ms Finley there could not be a majority in favour of not recommending the Applicant for the Grade 6 nurse position which is not tainted by a prohibited reason. By not recommending the Applicant for the promotion she has been injured or disadvantage."[2]
[2] Commonwealth Bank of Australia v Finance Sector Union (2007) 157 FCR 329 at 354 - 355.
Suspension in relation to the events of 1 September 2011
Mr Watson said it was common ground that between the hours of 2100 and 2200 on the evening of 1 September 2011 Ms McKoy was required to conduct Constant Observations of Patient N in the High Secure Unit at The Park. The controversy which had subsequently developed "surrounds the progress notes in the hand of the Applicant which state 'constant obvs completed from a distance as felt it was too unsafe in case door gave way. Visual contact every 15 minutes but can be heard for the remainder of the hour banging'".
Mr Watson argued that the Respondent's evidence surrounding this whole matter reveals unsatisfactory explanations, some of which are as follows:
· Ms Johansson's evidence of her conversation with Ms Finley on 2 September 2011 about the change in the position of undertaking the C/Obs - which did not attract any further enquiry or follow up by anyone within Queensland Health;
· notwithstanding the fact that the matter was regarded by the Respondent as a serious matter, nothing was done by Mr Brennan or anyone else between the time of the clinical review on 12 September 2011 and 18 November 2011 when Mr Brennan informed Ms McKoy she was suspended from working in the High Security Unit;
· the failure of Queensland Health to examine the actual seclusion order for Patient N (Exhibit 5) or the "Nursing Observation of Patient" chart
(Exhibit 6);· the failure on the part of management at The Park to understand that the relevant parts of the Mental Health Act 2000 provide that it is the Senior Nurse on duty who is charged with ensuring that constant observations are carried out. Despite the statutory obligation being placed upon CN Johansson no attempt was made to investigate her actions nor discipline her; and
· the critical differences in the notes made by Ms McKoy and Mr Brennan after their conversation on 18 November 2011.
"Faced with these lapses" Mr Watson said, "the Commission… would have difficulty in accepting that there was not an agenda at work to disadvantage the Applicant".
In the course of his submissions, Mr Watson highlighted that Ms McKoy had been given a show cause notice in which it was alleged that she changed the observation regime from continuous observations to 15 minute observations. However, it was never alleged against her that she had not carried out continuous observations in accordance with the relevant policy in light of what was written on the actual Seclusion Order (Exhibit 5) for patient N. Early and proper consideration of that documentation would have exonerated Ms McKoy early in the whole process. The failures of Queensland Health employees, specifically Mr Brennan, caused the Applicant to be suspended thereby causing most of the injury she suffered (where "injury" includes multiple elements as discussed below).
The unfair contract
Mr Watson said the conduct which was unfair, and not proscribed by the Contract of Employment between Ms McKoy and Queensland Health, was the situation where
Mr Brennan could exclude the Applicant from performing duties in the High Security Unit for the period 18 November 2011 to April 2012 "notwithstanding that she was qualified to do so and where a wholly inadequate investigation of the circumstances on
1 September 2011 was permitted to be carried out. In particular, no preliminary enquiries were directed to the Applicant or nurse Johansson nor was any recourse had to Exhibits 5 and 6 (which would have existed at the time)… (which) make reference to visual observations every 15 minutes entirely proper. Further, there was no term preserving the Applicant's ability to earn the overtime she could have had access to if she had not been suspended from the HSIS. In other words, the status quo in this respect was not preserved."."The Law"
Chapter 4 - Freedom of Association
Insofar as the present proceedings are concerned, Chapter 4 - Freedom of Association, relevantly provides:
"Chapter 4 Freedom of association
Part 1 Preliminary
101 Main purposes of ch 4
The main purposes of this chapter are to ensure–
(a)a person who is eligible to become a member of an industrial association may become or remain a member of the association without fear of discrimination;
…"
"104 Meaning of engaging in conduct for a prohibited reason for ch 4
(1)For this chapter, a person engages in conduct for a prohibited reason if the person engages in, or threatens to engage in, the conduct because another person– (my emphasis)
(a)is, has been, proposes to cease being or become, or has proposed to cease being or become a member or representative of an industrial association; or
…
(h)has the right to the benefit of an industrial instrument or an order of an industrial body; or
…
(j)has given evidence or taken part in (participate) or proposes to participate in, or has proposed to participate in proceedings under an industrial law; or
(k)is a member of an industrial association that is seeking better industrial conditions; or
(l)is dissatisfied with the person's industrial conditions; or
…
(n)as an officer or member of an industrial association has done, or proposes to do, an act or thing that is lawful and authorised by the association's rules to further or protect the industrial interests of the association or its members; or
…
(2)A person engages in conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason.
(3)In this section, a reference to a person engaging in conduct includes a reference to the person being, directly or indirectly, a party to or concerned in the conduct."
"Part 2 Prohibited conduct
105 Prohibited conduct for employers and principals
(1)This section applies to a person who is, or proposes to become, an employer or who has engaged, or proposes to engage, someone else as an employee or independent contractor.
(2)The person must not, for a prohibited reason, engage in the following conduct–
…
(b)terminate a person's contract of employment or contract for services;
(c)disadvantage or injure a person who is, or proposes to become, an employee or independent contractor;
(d)discriminate against a person in the conditions on which the person is offered a contract of employment or contract for services;
…"
Part 4 Civil remedies
117 Who may apply
The following may apply to the commission for an order under this part–
(a)an entity against whom prohibited conduct has been carried out or is proposed to be carried out;
…."
122 Evidence of prohibited conduct
(1)This section applies if conduct was engaged in by any of the following–
…
(e)a director or other officer or an employee or agent of a corporation, acting in that capacity
…
(3)Evidence that the entity engaged in the conduct for a prohibited reason is evidence the conduct was engaged in by the industrial association or corporation for the prohibited reason.
122AProof of the reason for, or the intention of, conduct not required
(1)This section applies if–
(a)in an application under this part about an entity's conduct, it is alleged that the conduct was, or is being, carried out for a particular reason or with a particular intent; and
(b)for the entity to carry out the conduct for the reason or with that intent would constitute a contravention of this part.
(2)It is to be presumed, in proceedings under this part arising from the application, that the conduct was, or is being, carried out for the reason or with that intent, unless the entity proves otherwise."
In providing his interpretation of the relevant provisions of Chapter 4 Mr Watson said, inter alia:
· Section 122A provides that where it is alleged that conduct was carried out for a particular reason and the conduct, for that reason, would constitute a contravention of the relevant part of the Act, then it is presumed in proceedings under the Part that the conduct was carried out for that reason unless the entity proves otherwise;
· thus, although the Applicant bears the onus of proof on the civil standard of other elements that must be proved to be successful, it is the Respondent who bears the onus of proof on the balance of probabilities that the various employees involved in the alleged prohibited conduct for a prohibited reason or reasons did not carry out that conduct for that reason or reasons;
· by s 104(2) of the Act a person engages in conduct for a prohibited reason if the conduct is engaged in for a reason that includes a prohibited reason;
· one of the prohibited reasons alleged by Ms McKoy is the fact that she was a member at all relevant times of the QNU. This appears not to be in dispute; and
· as evidenced in s 101 of the Act, one of the main purposes of Chapter 4 is to ensure that a person, such as Ms McKoy, can become a member or remain a member of an industrial association such as the QNU without fear of discrimination.
In addition, Mr Watson referred me to the decision of Member Keim of the
Anti-discrimination Tribunal of Queensland in McRostie v Boral Resources (Qld) Pty Ltd[3] where the learned Member noted that in cases alleging unlawful discrimination in employment areas a complainant is often forced to rely on circumstantial evidence. "This frequently concerns human resources decisions involving the complainant which in some way depart from what one might normally expect and, therefore, calls for some explanation. Depending on the nature of the decision and the persuasive nature or otherwise of the explanation offered by the respondent, the incident may constitute circumstantial evidence of alleged discrimination. The Tribunal may, in certain circumstances, be able to draw on inference, from the particular evidence, that the alleged discrimination has occurred."[3] McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4.
Relying on McRostie[4] Mr Watson submitted "there are a number of disquieting features involving human resources decision about the Applicant in the circumstances of this case which would raise questions in the mind of the Commission as to whether or not the burden of proof cast upon the relevant entities by s 122A of the Act has in fact been discharged.".
[4] McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4.
Mr Watson's submissions were disputed by Mr C Murdoch, of Counsel, who appeared for Queensland Health. Mr Murdoch submitted that Ms McKoy carried the onus to prove (1) that she had the protected characteristics outlined in s 104(1) of the Act and (2) that the prohibited conduct, as defined in s 105(2), had occurred. The onus then shifted to the Respondent to demonstrate that the prohibited conduct was not taken "because" of the prohibited reason (the rebuttable presumption)[5].
[5] Jones v Queensland Tertiary Admissions Centre Ltd (No. 2) [2010] FCA 399 at [10].
Mr Murdoch noted that section 122A of the Act provides that it is presumed the alleged conduct of a respondent has occurred for prohibited reasons unless the respondent proves otherwise and that such provision is similar to section 361 of the Fair Work Act 2009 (CTH) which contains a similar rebuttable presumption. Mr Murdoch then referred to the decision of the High Court in Board of Bendigo Regional Institute of Technical and Further Education v Barclay[6] in which the operation of the rebuttable presumption was considered. The following propositions were said to emerge from the High Court's decision in Barclay:
· the question of why an employer took adverse action against an employee is a question of fact arising from the operation of interdependent provisions of the relevant legislation. This may require consideration of the content of the relevant provisions, including the general purpose and policy of the provisions (at [41]);
· there is no warrant to be derived from the text of the relevant provisions for treating the statutory expression 'because' or the statutory presumption as requiring only an objective enquiry into a defendant employer's reason, including any unconscious reason, for taking adverse action. The imposition of the statutory presumption, and the correlative onus on employers, naturally and ordinarily mean that direct evidence of a decision-maker as to state of mind, intent or purpose will bear upon the question of why adverse action was taken, although the central question remains 'why was the adverse action taken?' (at [44]);
· in relation to the evidence of the decision maker:
ogenerally, it will be extremely difficult to displace the statutory presumption if no direct testimony is given by the decision-maker acting on behalf of the employer[7];
odirect evidence of the reason why the decision-maker took adverse action, which may include positive evidence that the action was not taken for a prohibited reason, may be unreliable because of other contradictory evidence given by the decision-maker[8] or because other objective facts are proven which contradict the decision-maker's evidence;
ohowever, direct testimony from the decision-maker which is accepted as reliable is capable of discharging the burden upon an employer even though an employee may be an officer or member of an industrial association and engaged in industrial activity (at [45]);
· it is erroneous to treat the onus placed on an employer as being made heavier (or rendered impossible to discharge) because an employee affected by adverse action happens to be an officer of an industrial association (at [59]);
· it is incorrect that an employee's status as an officer of an industrial association engaged in lawful industrial activity at the time that prohibited conduct/adverse action is taken means that an employee's union position and activities were in extricabley entwined with the adverse action, and that the employee is therefore immune, and protected, from the prohibited conduct/adverse action (at [61]); and
· it is a related error to treat an employee's union position and activity as necessarily being a factor which must have something to do with adverse action, or which can never be dissociated from adverse action. The onus of proving that an employee's union position and activity was not an operative factor taking adverse action is to be discharged on the balance of probabilities in the light of all the established evidence (at [62]).
[7] General Motors Holden Pty Ltd v Bowling (1976) 51 ALJR 235 at [241] per Mason, J.
[8] Pearce v WD Peacock and Co Ltd (1917) 23 CLR 199 at [208] per Isaacs J, 211 per Higgins J.
In terms of the standard of proof relevant to the proceedings being on the balance of probabilities, Mr Murdoch referred me to the decision of Logan J in Liquor Hospitality and Miscellaneous Union v Arnotts Biscuits Limited[9] and an earlier decision of the High Court in Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others[10]. In the course of his decision in Arnott's[11] Logan J referred to s 140(2) of the Evidence Act 1995 (Cth) and stated:
"… That subsection of the Evidence Act is a re-statement of a well-known passage in the judgement of Dixon J, as his Honour then was in Briggenshaw v Briggenshaw [1938] 60 CLR 36 at [362] in relation to considerations which intrude in deciding whether the standard of proof in the civil proceedings has been met, 'the seriousness of the allegation made, the inherit unlikelihood of an occurrence of a given description, or the gravity of the consequences flowing from a particular finding are considerations which must effect the answer to the question whether the issue has been proved to the reasonable satisfaction of the tribunal. In such matters 'reasonable satisfaction' should not be produced by inexact proofs, indefinite testimony, or indirect inferences'."
[10] Neat Holdings Pty Ltd v Karajan Holdings Pty Ltd and Others (1992) HCA 66.
[11] Op. Cit.
In Neat Holdings[12] the High Court said (per Mason CJ, Brennan, Deane and Gaudron JJ (at 450)):
"… the ordinary standard of proof required of a party who bears the onus in civil litigation in this country is proof on the balance of probabilities. That remains so even where the matter to be proved involves criminal conduct or fraud. On the other hand, the strength of the evidence necessary to establish a fact or facts on the balance of probabilities may vary according to the nature of what it is sought to prove". (Mr Murdoch's emphasis).
[12] Op. Cit.
In Mr Murdoch's submission, Mr Watson's reference to Member Keim's decision in McRostie[13] must be read in the context of the passages from Arnott's and Neat Holdings (above) "as well in the context of the lack of strength of the Applicant's allegations themselves." In this regard, Mr Murdoch was quite critical of the approach taken by
Ms McKoy and submitted:[13] McRostie v Boral Resources (Qld) Pty Ltd [1999] QADT 4.
"29.For the most part, the Applicant has baldly alleged that she had those particular characteristics and has not explained how or in what context they are alleged to be linked to the 'prohibited conduct' she has alleged.
30.The evidence led by the Applicant as to her actual participation in any union activities or when she made her dissatisfaction known was very limited. With the exception of perhaps the Level 6 appointment issue in relation to Marie Finley, the Applicant does not (and indeed, cannot) allege any specific link between her union activities and the alleged prohibited conduct. Her allegations are mostly made in the abstract.
31.This lack of particularity and specificity impacts on both the issue of whether the onus actually shifts under section 122A, and, if it does, the strength of the evidence that necessarily must be put on by the Respondent in order to discharge the rebuttable presumption."
Mr Murdoch likened the approach taken by Ms McKoy as akin to Gofton v Queensland Newspapers Pty Ltd[14] and Hodkinson v The Commonwealth[15] in which Jarrod FM and Cameron FM (as they were) each commented, adversely, about the lack of particularity of the allegations raised and the need for an applicant to allege the particular intent behind the prohibited reasons advanced. In Hodkinson[16] Cameron FM said: "In other words, in these proceedings, to enliven the reverse onus of proof the applicant had not only to allege that the decision to not extend her WIP was taken because she suffered from a disability but also to identify the disability said to have motivated the respondent's conduct. However, she did not do this."
Mr Murdoch submitted it was not to the point that Ms McKoy was aggrieved by certain events that took place in the course of her employment. The nature of a Freedom of Association claim is not such that it is an analysis of the correctness or even lawfulness of those events. The enquiry is whether the conduct occurred for a prohibited reason. Such approach is confirmed in a number of decisions in the federal jurisdiction, including: O'Sullivan FM (as he then was) in Cugura v Frankston City Council[17] and by the Full Court of the Federal Court of Australia in Khiani v Australian Bureau of Statistics[18].
[18] Khiani v Australian Bureau of Statistics [2011] FCA FC109.
For present purposes it is sufficient, to understand the nature of the enquiry to be made, to repeat one paragraph of Federal Magistrate O'Sullivan's decision in Cugura[19]:
"[172]The relevant issue is the decision-marker's motivation and whether it included a proscribed reason, not whether the information on which the decision to take adverse action was based was flawed or the reason why that information might have been flawed."
[19] Op. Cit.
In Mr Murdoch's submission:
"40.The enquiry is not about fairness, reasonableness or process. It is about motivation. The Applicant invites the Commission to imply a prohibited reason by referring to alleged 'disquieting features' involving human resources decisions about the Applicant. Even if there were 'disquieting features', which there are not, that would not lead to a finding that the alleged conduct occurred for a prohibited reason. Such a finding could only be made where in all of the circumstances of the case the Commission is satisfied that an operative reason for the treatment of the Applicant was a protected attribute.
41.As a result, the Commission does not need to embark on a detailed consideration of whether, for example, the Respondent precisely complied with its recruitment and selection policy when appointing nurses to the Level 6 positions in Kuranda, or whether the investigation regarding the Applicant's conduct regarding Patient N could have been managed better or differently. Rather, the focus of enquiry is a consideration of whether what did occur to the Applicant, assuming it meets the prohibited conduct threshold, occurred because of a prohibited reason."
Finally, in terms of the way Ms McKoy presented her case, Mr Murdoch submitted:
"42.With the exception of Ms Finley none of the Respondent's witnesses were cross-examined about any matters relating to the Applicant's protected attributes.
43.Accepting the nature of the rebuttable presumption, if there was something that could positively link any of the witnesses' actions to the Applicant's protected attributes, their motivations ought to have been tested. They were not.
44.Much of the cross-examination went to the correctness or reasonability of the decisions made by the Respondent's employees. Without more, given the unchallenged evidence of the Respondent's witnesses as to their motivations, the evidence as to motivations unconnected to any protected attribute that was given by each of them should be accepted."
In his response, Mr Watson disputed there was a shifting onus with respect to s 122A of the Act. He said the onus always remains with the entity involved to establish, on the balance of probabilities, that the impugned conduct was not carried out for a proscribed reason or for reasons that include a proscribed reason. While Ms McKoy accepted that she bore the onus of proving that conduct did occur, she bore no onus to prove that there could be no other reason to explain the conduct other than the prohibited reason. It was up to the Commission as presently constituted to determine, having regard to all of the evidence, whether Queensland Health has discharged the onus placed on it.
Mr Watson also disputed the correctness of what he said was the Respondent's submission about "the onus is upon the Respondent when it comes to proving that the Respondent was not motivated by a proscribed reason". In this respect, Mr Watson said "it is clear from s 122 of the Act that evidence that an employee of the Respondent carried out or engaged in conduct for a prohibited reason is evidence against the Respondent. However, that must be read in conjunction with s 122A of the Act so that in carrying out the conduct or engaging in the conduct it is presumed that the employee (of the Respondent) carried out or engaged in the conduct for a prohibited reason unless the employee proves otherwise".
Mr Watson also argued that there was no onus upon Ms McKoy to provide evidence of a link between the prohibited reason and the prohibited conduct. "That is the province of
s 122A of the Act. To argue that the Applicant bears a further onus of identifying a specific link is to put a gloss on and dilute the strength of the statutory presumption. It is important here to recognise that it is a statutory presumption and like all relevant sections of the Act needs to be given full force and effect consistent with the main purposes of Chapter 4 of the Act, as set out in s 101A, namely that persons like the Applicant can remain members of a Union… without fear of discrimination", where "discrimination" is obviously a reference to such person being injured or disadvantaged in their employment because they are a Union member.Similarly, Mr Watson was dismissive of Mr Murdoch's submissions at paragraph 40 (see paragraph [76] above) saying that while it was true that reasons or intent are one of the main focii of the enquiry to be undertaken by the Commission it is not an enquiry which is divorced from the fairness or reasonableness of the processes involved. "The reason this is so is because any such unfairness, inequity or impropriety can be used as a pointer or pointers to why somebody was motivated to do an injury to or disadvantage the victim of the proscribed conduct."
Section 276 - Application to Amend or Declare Void Contract for Service
As noted in paragraph [2] at paragraph [4(a), (b) and (c)], as well as in the submissions of Mr Watson at paragraph [81] above, Ms McKoy's Application for relief is based around the actions of Queensland Health between 18 November 2011 and early April 2012.
In addressing this topic in his written outline of submissions Mr Watson did not have much to say about the relevant law other than to indicate that "the contract may be unfair because it does prohibit conduct that is unfair"[20]. Further whether the contract is unfair is a moral issue not a legal one[21]. However, in the course of his oral submissions he took the matter further as set out below.
[20] Walker v Industrial Court of New South Wales (1994) 53 IR 121.
[21] Reilly v TDG Logistics Pty Ltd (2001) 166 QGIG 430.
Mr Watson said Ms McKoy was not arguing that the contract of employment be voided but, rather, that the contract be amended to overcome its alleged deficiencies. In referring to the case of State of Queensland v Casaubon[22] issued on 26 June 2013, Mr Watson drew my attention to the decision of Hall P where His Honour stated "… Mr Casaubon's complaint is not about breach of the terms of his contract, but about the absence of terms which the contract should have included… Mr Casaubon says that his contract is unfair in that it does not provide him with a remedy for unfair conduct. Any issue about monetary compensation arises from the express language of s 276(5) of the Act."
[22] State of Queensland v D'Arcy Joseph Casaubon (C/2013/3) - Decision < her natural concern about the decision conveyed to her by Mr Brennan, the last part of Ms McKoy's email to him makes quite serious allegations about his decisions and motivations in a most disrespectful and discourteous way. This is because Mr Brennan, as one of her line managers, was being told that his actions were "heavy handed", "may be part of a pattern of ongoing discriminatory treatment" and was "an attempt to discredit her".
[209]Not surprisingly, Mr Brennan took affront at Ms McKoy's personal attack on him. Indeed, the evidence established that he was so concerned about the email he spoke to Ms Barnett to seek her guidance about how he should respond.
[210]In my view the agreed response to Ms McKoy was very considered, and measured, given the personal attack on Mr Brennan. In the course of his email he wrote:
"I can appreciate that you may have concerns and would like things to be dealt with in a timely manner, however, I would also like to remind you of your obligations under the code of conduct, specifically respect for persons. I did not appreciate the tone used in your e-mail or what I perceived to be an attempt to intimidate me regarding my decision and you request for information by this afternoon."
[211]Rather than being a reprimand, his email was nothing more than a mild slap on the wrist. Mr Brennan could have taken the matter further but chose not to. Ms McKoy was very lucky, in my view, that he chose to deal with the matter in the way he did and not take it to a higher level. As such, Mr Brennan did not injure or disadvantage Ms McKoy and/or discriminate against her in the way he responded to her email. Queensland Health has met the onus placed on it pursuant to s 122A of the Act.
The Unfair Contract claim
[212]In discussing this matter, it is to be remembered that Ms McKoy argues that the contract of employment between herself and Queensland Health is unfair for the following reasons (from clause 4(a) in paragraph [2]):
(i) it failed to protect the Applicant from retaliation and reprisal by
Mr Brennan;(ii) it failed to provide a suitable mechanism to diligently investigate a complaint made against the Applicant by Mr Brennan;
(iii) it failed to maintain the status quo in respect of the Applicant's employment while the investigation was conducted;
(iv) it failed to provide an opportunity to the Applicant to be a full participant in the investigation.
[213]It goes without saying that the Applicant's contract of employment includes not just the provisions of the relevant award and certified agreement but all relevant policies and procedures established by Queensland Health and/or the District. In addition, the same industrial instruments and documents regulate the behaviour of Queensland Health and/or the District in terms of its dealings with its employees, including Ms McKoy. Further, in any proceeding commenced by an Applicant pursuant to s 276 of the Act the onus is on the Applicant (Ms McKoy) to establish the facts and circumstances alleged, on the balance of probabilities. It is with the above background in mind that I turn to consider Ms McKoy's application for relief in accordance with s 276 of the Act.
4(a)(i) it failed to protect the Applicant from retaliation and reprisal by Mr Brennan
[214]On behalf of Queensland Health, Mr Murdoch submitted that if Ms McKoy's freedom of association claim as it relates to Mr Brennan was unsuccessful there can be no retaliation or reprisal by Mr Brennan. Further, "… given that any 'reprisal or retaliation' must, on the Applicant's case, be as alleged in her freedom of association claim, the presence of that part of the Act is of itself a further factor which demonstrates that no unfairness could exist requiring an amendment (to the contract) as an exercise of discretion."
[215]The first submission of Mr Murdoch is clearly correct. If all of the behaviours and actions of Mr Brennan have been found to have been fully explained and justified (which they have) and he is found to have not engaged in prohibited conduct for a prohibited reason (which is the case) then there can be no unfairness in the way he has treated Ms McKoy and I so find.
[216]In any event, given the nature of the allegation, it is also appropriate that I record my finding that there is nothing whatsoever in the evidence which would, in any way, support the assertion that Mr Brennan engaged in any retaliation and/or reprisal against
Ms McKoy.4(a)(ii) it failed to provide a suitable mechanism to diligently investigate a complaint made against the Applicant by Mr Brennan
[217]Interestingly, the nature of the dilemma confronting Mr Brennan when he first heard about the events of 1 September 2011 is recorded in the written submissions of
Ms McKoy at paragraphs 41 and 42 where she refers to the fact that she carried out constant observations, but at "a distance… every 15 minutes…".[218]Indeed, to put the dilemma facing Mr Brennan in its proper perspective, the actual entry reads as follows:
"2100 - 2200
Extremely aggressive, agitated, threatening. Throwing whole body weight against door.
10mg Olanzapine and 5mg Diazepam @ 2120.
Constant obs completed from a distance as felt it was unsafe in case door gave way.
Visual contact every 15 minutes but can be heard for the remainder of the hour banging."
[219]As conceded in evidence by Ms McKoy, no one involved in the care of patient N on the evening of 1 September 2011, or in the events which followed, had any doubt whatsoever that the medical officer concerned had directed that patient N would be the subject of "continuous observations" between 2100 and 2200 on that evening. However, none of the witnesses called by Queensland Health accepted that "continuous observations", within the meaning of the relevant policy, could be completed from "a distance".
[220]The apparent inconsistency between the case notes and the requirements placed on
Ms McKoy by the Policy came to the attention of Dr Neillie, and others, during the course of the clinical review meeting on 12 September 2011 and subsequently (as explained above) to Mr Brennan, who decided that the matter required further investigation. It is the nature of that investigation, and the time it took to complete, which is complained about by Ms McKoy.[221]Mr Brennan's evidence (which I accept) is that after he viewed the patient notes (as above) recorded by Ms McKoy in light of The Park's constant observations policy he sought advice from Ms Barnett about how he should best approach the matter. Her advice (see paragraph 66 of his Affidavit - Exhibit 21) was that it should be referred to the ESU but he should also have a discussion with Ms McKoy about his concern that the observation level may have been changed by her during the shift. Acting on this advice Mr Brennan asked his secretary to arrange a meeting with Ms McKoy so that they could discuss the matter on a 1:1 basis. However, any intentions Mr Brennan might then have had about dealing with the matter quickly and informally went "out the window" soon afterwards.
[222]While it appears to be the case that Mr Brennan was told by his secretary that Ms McKoy was not prepared to meet with him to discuss the matter without an agenda before he spoke to her around 12:25pm, I am not sure that this was the case. This is because each of Ms McKoy and Mr Brennan gave evidence to the effect that when he spoke to
Ms McKoy he said words to the effect that she "should not be alarmed but it had come to his attention through a clinical review that she may have changed the observation level of a patient". While Mr Brennan said that he expressed the view that he wanted to meet with Ms McKoy about the matter at the start of their conversation this is not reflected in her evidence. Nonetheless, they both agreed that she requested him to put his concerns in writing and that Mr Brennan told her that he could not permit her to work in HSIS while the investigation process was occurring.[223]Any intentions Mr Brennan might have had about dealing with the matter relatively informally changed significantly after he received Ms McKoy's email of 19 November 2011 (referred to above) in which she described his actions as "part of a pattern of ongoing discriminatory treatment" and "an attempt to discredit her". Thereafter, Mr Brennan essentially passed the matter across to Ms Barnett to deal with in accordance with normal Queensland Health practices and procedures.
[224]Without traversing all of the evidence, the majority of which is recorded above, it is convenient to record the chronology of the investigation process after 22 November 2011, as follows:
· after 22 November 2011 - in addition to dealing with work bans and participating in QIRC conferences Ms Barnett spoke to both her Executive Director and with a representative of ESU about referring the matter, which would have been referred to them pursuant to "Human Resources Policy E9 - Clause 8.2" even if Ms McKoy had agreed to meet with Mr Brennan, as well as obtaining a statement from Mr Brennan;
· 8 December 2011 - Ms Barnett referred the matter to ESU for assessment;
· 8 December 2011 - a Senior Officer of the Premier's department contacted Queensland Health head office, after which that office sought advice from
Ms Lane. Ms Barnett was asked to prepare a response;· 12 December 2011 - Ms Barnett sought an extension of time to reply until after the ESU provided its outcome;
· 15 December 2011 - ESU referred the matter back to the District for investigation with advice that the matter was regarded as suspected official misconduct;
· 22 December 2011 - Discussions within the District about the best way to deal with the matter, given that the Premier's Office had become involved, with a decision being reached to formalise the process "in a way that could not be impugned "(see paragraph 34 of Ms Barnett's Affidavit - Exhibit 27);
· 22 December 2011 - Ms Lane forwards show cause notice to Ms McKoy, with a response due on 9 January 2012;
· 16 January 2012 - Ms Barnett returns from annual leave and illness but was "in and out of the office and not operating at full capacity". On that date (or soon thereafter) she receives Ms McKoy's response (dated 29 December 2012) to the allegation;
· 22 January 2012 - Ms McKoy emails Ms Barnett expressing her concern about her continued prohibition from working in HSIS as her new role in Kuranda was scheduled to commence;
· 23 January 2012 - Ms Barnett contacts Mr Meehan by email with a request that he address certain queries she has arising from Ms McKoy's response to the allegations and her email of the previous day;
· 24 January 2012 - Ms Barnett asks Ms White to assist her in progressing the matter;
· 24 January 2012 - Ms Barnett receives information from Mr Meehan in response to her email of 22 January 2012;
· 25 January 2012 - Ms Barnett emails Ms McKoy. She provides a summary of the investigation process to that point and informs her that Ms White had been assigned to take over conduct of the matter. The email also indicates that Ms Johansson would be interviewed in the next week, further information would be obtained from Ms Finley and Mr Brennan after their return from leave, following which all material would then be considered by the decision-maker;
· 27 January 2012 - correspondence is received from Ms McKoy's solicitor which contains advice they held instructions "to say that if the suspension is not revoked by close of business Monday 30 January 2012 and she is provided with full reimbursement of her lost salary entitlement, we are to commence proceedings in the Queensland Industrial Relations Commission seeking the appropriate Declarations and Orders for compensation under Chapter 4 of the Industrial Relations Act 1999.";
· 31 January 2012 - Ms White interviews Ms Johansson and takes a statement from her;
· 7 February 2012 - Ms Barnett and Ms White convene a meeting with the relevant clinicians (Brennan, Meehan, Neillie and Steadman) to discuss the clinical issues involved. Mr Meehan is requested to conduct further investigations about actual practices on the ward concerning constant observations;
· 14 February 2012 - Ms Barnett receives Mr Meehan's Report;
· 20 February 2012 - a copy of a sworn Statutory Declaration of Ms Johansson is received from Ms McKoy's solicitors;
· 22 February 2012 - Ms Lane forwards additional correspondence to
Ms McKoy's solicitor, which asks Ms McKoy to address certain additional matters;· 27 February 2012 - Ms McKoy's solicitors file Matter No. B/2012/2 (i.e. the subject of this Decision) in the Industrial Registry, seeking relief under both Chapter 4 and s 276 of the Act (the Application is subsequently amended to that recorded at paragraph [2] above);
· 14 March 2012 - advice is received of a QIRC dispute conference on the following day;
· 15 March 2012 - Ms White and an Industrial Relations Consultant from Queensland Health Workplace Services attend the conciliation conference. The matter is adjourned until 27 March 2012;
· 27 March 2012 - Ms McKoy's response to Ms Lane's letter is received and a second conciliation conference, attended by Queensland Health's legal representatives, Ms White and Mr Brennan, is held; and
· 2 April 2012 - Ms Lane informs Ms McKoy of her decision in relation to the allegations.
[225]The above chronology indicates that while Ms Barnett and, later, Ms White were attempting to investigate the complaint, Ms McKoy escalated the matter somewhat by involving the Premier's Office and her solicitors who, on her behalf, made certain demands - failure to comply with would lead to proceedings being commenced under Chapter 4 of the Act in the QIRC and, later, via a Notification of Industrial Dispute.
[226]Given the above facts and circumstances it is not at all surprising to me that it was not until 2 April 2012 that Ms Lane formally corresponded with Ms McKoy and informed her, inter alia, that she could take up her appointed duties in Kuranda Unit.
[227]On this finding, there is no basis upon which I could consider varying Ms McKoy's contract of employment to include a mechanism of the type sought. Further, as
Mr Murdoch rightly points out in his submission, for me to do so I "would need to first accept that the allegation was so minor and simple that it could have been quickly and easily dispensed with. This is clearly not the case. The Commission would also need to accept that a contractual term was capable of prescribing a satisfactory process. The Applicant does not suggest such a term. Given the many and varied circumstances in which an investigation might be required, a 'one size fits all' approach is not warranted and could not itself be unfair. … The facts of this matter demonstrate the impracticability of a term of the general nature suggested by the Applicant."[228]While subsequent research has revealed the existence of discrepancies between the nature of the "Seclusion Order" (Exhibit 5) for patient N on the night in question compared to that which all parties thought was the case, any element in a contract of employment requiring Queensland Health to conduct "diligent investigation" would not necessarily have revealed that discrepancy. As such given the problems likely to arise if something was not discovered during the course of a "diligent investigation" (whatever they might entail), it would not be appropriate for me to include any such provision in an employment contract.
4(a)(iii) it failed to maintain the status quo in respect of the Applicant's employment while the investigation was conducted
[229]It is difficult to understand the nature of this claimed relief given that Ms McKoy's employment status was maintained while the investigation was conducted.
[230]As at 18 November 2011, when Mr Brennan spoke to Ms McKoy by telephone, the Applicant was engaged under a short-term contract in the CRU which covered the period from 13 October 2011 to 27 November 2011. For the balance of that contract she was rostered consistently with the requirements of that contract, based on Mr Brennan's assessment that she should not work in the HSIS until the matter identified during the clinical review was investigated and resolved. Ms McKoy's then contract, as compared to several others recorded at paragraph [97] above, was not to any particular unit. It was open to Queensland Health, via Mr Brennan, to require Ms McKoy to work in any area of The Park, other than HSIS.
[231]Subsequently, her short term contract was renewed on two occasions, covering the periods 28 November 2011 to 25 December 2011 and 26 December 2011 to 22 January 2012 - with both contracts specifying the CRU as her place of employment. While the evidence shows that Ms McKoy was offered, and accepted, full-time employment in the Kuranda Unit from (it seems) 16 January 2012 she did not actually take up employment in that Unit until the investigation concluded in early April 2012. During the intervening period Mr Brennan's direction that she not work in the HSIS was continued.
[232]During the whole of the period between 18 November 2011 and early April 2012
Ms McKoy was rostered to full-time employment during which she was paid her full wages, entitlements and allowances as provided in the relevant industrial instruments.[233]At paragraph 48 of her written submissions, Ms McKoy also clarifies the breadth of the relief sought under this heading when she says:
"Further, there was no term preserving the Applicant's ability to earn the overtime she could have had access to if she had not been suspended from the HSIS. In other words the status quo in this respect was not preserved."
[234]In addressing this aspect of Ms McKoy's claim I note the submissions of the Respondent on the point, as follows:
"279. In submissions the Applicant claims that her alleged inability to work overtime is a part of the status quo to which she refers. That starts from the flawed premise that the Applicant had an entitlement to work overtime. She did not. Further:
(a) the Applicant did work overtime on some occasions;
(b) there were overtime opportunities available to her, which were nearly identical both inside and outside HSIS (Exhibit 21, Affidavit of William Brennan, at [103] and WB-55);
(c) the Applicant indicated that she was available to work overtime on very few dates (Exhibit 21, Affidavit of William Brennan, at [105] and WB-57. Exhibit 30 demonstrates that the Applicant worked primarily night shifts in this period.); and
(d) for the period from 9 January 2012 onwards the Applicant had also requested to work nights only, which may have impacted her ability to work overtime (WB 104(c))."
[235]The first point made by Queensland Health is correct. Ms McKoy did not have any entitlement to work unlimited overtime or to be guaranteed a minimum overtime payment each week. Whether she made herself available to work overtime or not was a question for her. In this respect, although she was not allowed to work in the HSIS while the investigations (spoken about above) were being undertaken, she was not prevented from making herself available for overtime in Units outside HSIS.
[236]In this respect, Mr Brennan's evidence (at paragraph 105 of his Affidavit) said he reviewed the overtime availability records for the period 28 November 2011 to 25 March 2012 and noted that Ms McKoy had only made herself available for overtime on three occasions. While Ms McKoy disputed these records, saying she had made it known to the relevant Nurse Managers and the like that she was available to work overtime, even if she did not always write it down, there is no clear evidence that she raised the issue of her (alleged) lack of access to overtime in any formal way. This is to be compared to:
· her email to Ms Edge on 31 August 2010 when she complained about being continually overlooked for short-term contracts; and
· lodging the grievance on 1 April 2011 complaining about her (alleged) termination of employment; and
· correspondence to Ms Lane on 22 January 2012 during which she raised concerns about not being permitted to commence her Grade 5 position in the Kuranda High Secure Unit (and also requested she direct Mr Brennan to "immediately cease and desist the bullying and harassing behaviour towards me").
[237]Relevantly, in terms of Ms McKoy's evidence about the manner by which she made it known to the relevant staff that she was available for overtime, she also demonstrated her clear awareness of, and observance of, The Park's overtime protocols when she said, in her letter to Ms Lane referred to immediately above, "In accordance with hospital protocol I indicated availability for overtime shifts in High Secure Services on my rostered days off on 21 and 22 January 2012" (my emphasis). This statement tends to contradict her evidence about how many times she made herself available to work overtime.
[238]While there was extensive evidence given by a number of witnesses about the system by which a nurse might make it known s/he made themselves available for overtime, the amount of overtime worked in the high security units versus other areas etc, I propose to "cut to the chase" in relation to that matter by referring to certain data appended to the Affidavit of Mr Brennan, as subsequently reviewed and reflected in Schedules 1 and 2 to the Respondent's submissions. Before doing that, however, it is worthwhile to record that while Ms Finley's evidence was that 22 Grade 5 Nurses were recommended for employment in the Kuranda Unit, Ms McKoy's "loss of overtime" claim is based upon the hours worked by just six of those staff over a four week period - which is then extrapolated over a much longer period.
[239]The data in Schedule 2 of the Respondent's submissions reveals the following overtime hours for Ms McKoy:
· "pre-ban" - 385 hours of overtime worked during the 42 week/21 pay cycles period from 10 January 2011 until 30 October 2011 (when Ms McKoy went on leave) at an average of 18.33 hours per fortnight; and
· "post-ban" - a total of 203.5 hours worked over 20 weeks/10 pay cycles between the period 2 April 2012 until 19 August 2012, at an average of 20.35 hours per fortnight.
[240]Based on these figures (and noting that Ms McKoy's Application for relief was filed in the QIRC on 27 February 2012) her Application for relief concerning an alleged loss of overtime must fail. The difference between the amount of overtime work "pre-ban" and "post-ban" is negligible. Further, the maximum amount of overtime worked by Ms McKoy in any single fortnight during the periods identified was 38.5 hours, worked in late May/early June 2012, with there only being four occasions across the 31 pay cycles recorded where she worked more than 30 hours overtime in the fortnight (32, 32, 38 and 38.5).
[241]On the basis of this history it is highly unlikely Ms McKoy would have ever worked the amount of overtime she used to calculate the amount of compensation she seeks to recover through this Application. For the reasons outlined above, as well as my acceptance of
Mr Murdoch's arguments at paragraphs 286 to 293 of his written submissions, I refuse to grant this claimed relief.4(a)(iv) it failed to provide an opportunity to the Applicant to be a full participant in the investigation
[242]As with a number of elements in her Application, Ms McKoy does not seem to appreciate that in order to be effective, any outcome granted in response to any identified deficiency in a contract of employment needs to be able to work in reality.
[243]In that respect, apart from identifying what the contract is said not to include, no suggestion has been put forward about how any particular alleged defect might be addressed.
[244]Further, the alleged "unfairness" in this element of the claim seems to misapprehend the nature of the enquiry Queensland Health was undertaking as well as Ms McKoy's role during the course of the same enquiry. On my reading of the evidence, Ms McKoy was, at all times, "a full participant" in the investigation - albeit that it was her entry in the patient records that was being investigated. It was not, and never could have been, a "joint" investigation. That responsibility fell to Queensland Health.
[245]The matter under investigation was, all witnesses agree, a serious matter. Ms McKoy herself agrees that if she had changed the level of observation on the night in question without authority that would have been misconduct on her part.
[246]As the Respondent notes, Ms McKoy is a lawyer and obtained legal representation. She was apprised of the allegations and given an opportunity to respond. When certain elements of her response were sought to be clarified she did so but, before the employer could take the matter much further, commenced legal action in this Commission by the present Application and a Notification of Industrial Dispute. In early December she communicated with the Premier's Office which (arguably) added an extra "complication" to Queensland Health's approach to the matter.
[247]In every sense of the words Ms McKoy was a "full participant" in the investigation. The fact that she might have wished the investigation to have been handled differently, with more expedition, does not make the process unfair. Nor did the process act to deny her any opportunity to respond directly to the employer or to take any other action she might have wished, including involving the QIRC. The claim that the contract of service was unfair under this heading must also be rejected.
Summary
[248]Given that:
· Ms McKoy has failed to establish that her contract of service with Queensland Health was unfair in respect of any of the elements argued; and
· Queensland Health has fully met the onus placed on it pursuant to s 122A of the Act in relation to those matter raised against it under Chapter 4 of the Act by Ms McKoy,
I dismiss Matter No. B/2012/2.
[249]I make no Order as to costs.
[250]I determine and Order accordingly.
- AGLC
- McKoy v State of Queensland (West Moreton Hospital and Health Service) [2015] QIRC 120
- Case
- [2015] QIRC 120
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the onus of proof under Chapter 4 matters and the applicability of a rebuttable presumption under section 122A. The court also needed to assess whether the respondent had breached the freedom of association provisions and if the contract should be amended or declared void. The applicant argued that the respondent's investigation process was inadequate, and that the restrictions on overtime work were unfair, leading to a loss of overtime.
The court found that the applicant had not demonstrated that the contract was unfair or should be varied. It was determined that the respondent did not breach the freedom of association provisions. The applicant's claims regarding the investigation process and overtime restrictions were not substantiated, and the court did not find that the respondent had acted for a prohibited reason. Consequently, the application was dismissed.
The court's decision concluded that the respondent had not breached the freedom of association provisions, and the application to amend or declare void the contract for service was dismissed. The court's reasoning was grounded in the lack of evidence supporting the applicant's claims, and it found that the onus of proof had not been met to establish the alleged breaches.
Orders
Orders of the court
The Application is dismissed.
Background
Background to the litigation
Evidence
Evidence Before The Court
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.