Minogue v State of Queensland (Queensland Health)

[2014] QIRC 44

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Minogue v State of Queensland (Queensland Health)
[2014] QIRC 044
PARTIES:	Minogue, Peter James
(applicant)
v
State of Queensland (Queensland Health)
(respondent)
CASE NO:	TD/2013/32
PROCEEDING:	Application for reinstatement; unfair dismissal
DELIVERED ON:	25 February 2014
HEARING DATES:	2-6 December 2013
MEMBER:	Deputy President O'Connor
ORDERS:	1. The application is dismissed; and
2. Costs reserved.
CATCHWORDS:	INDUSTRIAL LAW - APPLICATION FOR REINSTATEMENT - UNFAIR DISMISSAL - HARSH, UNJUST OR UNREASONABLE - Where the applicant was dismissed on the grounds of a persistent pattern of disrespectful behaviour towards senior management - Where the applicant applied for reinstatement under s 74 of the Industrial Relations Act 1999 alleging that his dismissal was "unfair" because it was "harsh, unjust or unreasonable" - Where the applicant abandoned his earlier allegation that the respondent had breached s 104(1)(i) of the Industrial Relations Act 1999 - Matters referred to in s 77 of the Industrial Relations Act 1999 considered
CASES:	Industrial Relations Act 1999 (Qld), s 73, s 74, s 77, s 104
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20
APPEARANCES:	The applicant, for himself. Dr M Spry, Counsel, instructed by Crown Law, for the respondent.

Background

[1] This is an application filed on 18 April 2013 under s 74 of the Industrial Relations Act 1999 ("the Act") by Mr Peter James Minogue ("the applicant") seeking reinstatement to his former position as "Registered Nurse Grade 5/07" at the Townsville Hospital and Health Service - which is a part of the entity known as Queensland Health, ultimately falling under the aegis of the State of Queensland ("the respondent") - on the ground that his dismissal was harsh, unjust or unreasonable.

Relevant legislation and authorities

[2] Section 73 of the Act relevantly provides:

"73 When is a dismissal unfair

(1) A dismissal is unfair if it is–

(a) harsh, unjust or unreasonable; …"[1]

[1]

[3]      In Bostik (Australia) Pty Ltd v Gorgevski (No 1), Sheppard and Heerey JJ said of the phrase "harsh, unjust or unreasonable" as it appeared in the Manufacturing Grocers Award 1985:

"These are ordinary non-technical words which are intended to apply to an

infinite variety of situations where employment is terminated. We do not think

any redefinition or paraphrase of the expression is desirable. We agree with

the learned trial judge's view that a court must decide whether the decision of

the employer to dismiss was, viewed objectively, harsh, unjust or

unreasonable. Relevant to this are the circumstances which led to the decision

to dismiss and also the effect of that decision on the employer. Any harsh

effect on the individual employee is clearly relevant but of course not

conclusive. Other matters have to be considered such as the gravity of the

2

employee's misconduct."

Background to the termination

[4]      At the time of his termination on 3 April 2013, the applicant had been employed by the respondent for seventeen years, with ten of those being in the Endoscopy Unit at the Townsville Hospital.

[5]     On 7 November 2012 a "Revisited Suspension and Show Cause Notice" was forwarded to the applicant which contained the following two allegations:

"Allegation No. 1
It is alleged that you contravened, without reasonable excuse, Direction 1 in
that you used disrespectful language to Ms Drummond in your letter of 7
October 2011.
Allegation No. 2

It is alleged that you are guilty of misconduct in that you conducted yourself inappropriately or improperly in an official capacity by your persistent re- agitation of matters the subject of the agreed outcome to your QIRC dispute D/2011/105 by:

(a)	Your email to Dr O'Connell dated 6 July 2012
(b)	Your email to Ms Bain dated 4 September 2012
(c)	Your email to Ms Rowland dated 8 September 2012"

[6]      At the hearing of the application, the application made the following admissions to the Commission which were also repeated in his written submission:

rd

"MR MINOGUE: On the 3 of April 2013, following the completion of a

discipline process with a substantiation of two allegations, the disciplinary

penalty of termination of my employment was given to me by careful

consideration by Ms Lynette Rowland, Chief Human Resources Officer for

Queensland Health. In relation to allegation 1, I do accept that I contravened

th

without reasonable excuse a direction issued by Ms Karen Wheilan on the 6

of October 2011.

DEPUTY PRESIDENT: Right

MR MINOGUE: In relation to allegation 2, I do accept that I am guilty of

misconduct to my persistent re-agitation of matters the subject of the agreed

outcome to the QIRC dispute, D2011/105, by three emails: one email to Dr

th

O'Connor (Dr O'Connell) dated the 6 of July 2012; another to Ms Vane (Ms

th th

Bain) dated the 4	of September 2012; and an email to Ms Rowland dated 12
September 2012.

3

DEPUTY PRESIDENT: Yes"

Reasons for termination

[7]      Ms Lynette Margaret Rowland identifies the reasons for terminating the applicant's employment in her affidavit:

"I decided to terminate the Applicant's employment for the following reasons:

(i)       The Applicant had offered no real explanation for his conduct.

(ii)     The Applicant demonstrated a total lack of insight into the appropriateness of his communications, and in particular the manner and tone of those communications, all of which were sent to officers more senior than him. The Applicant demonstrated that he was unable to distinguish between his entitlement to raise concerns in the workplace and the appropriate manner in which those concerns should be raised.

(iii)   The Applicant, a Level 5 base grade nurse, had demonstrated a total disregard for the management positions or the authority of managers to direct his behaviour and conduct. The Applicant had engaged in a pattern of such behaviour for a significant period of time.

(iv)     The Applicant continued to use disrespectful language towards a senior officer, in flagrant disregard of a clear and unequivocal direction not to use such language that had been given to him in writing only one day earlier.

(v)       The Applicant's responses throughout the disciplinary process demonstrated a lack of insight into why the disciplinary process had been commenced against him and a complete lack of contrition or remorse for his conduct. In this regard, I was particularly concerned by the Applicant's submission that the situation was 'entirely one of the Service's making'.

(vi)    The Applicant's response indicated that he failed to accept that his conduct, particularly the content and tone of communications he had sent, some of which were sent to very senior management, was highly inappropriate."

[8]      In his submission to the Commission, the applicant claimed that his dismissal was harsh, unjust or unreasonable. It is convenient to repeat his oral submission in support of that assertion, made on the final day of the hearing:

"MR MINOGUE: The dismissal is unfair is that it's harsh, unjust and unreasonable for the following reasons. In Mr Simon Mitchell's affidavit at paragraph 23, he states, prior to mid-2007, the applicant had been an excellent colleague whilst working in the general medical wards and he was a well- respected registered nurse. From my experience working with the applicant, his attitude and behaviour toward work changed after early to mid-2007. I do not know what caused the change in the applicant. In Mr Simon Mitchell's affidavit and in his oral testimony, Mr Mitchell identified myself as being one of three employees in a core group of staff within the endoscopy unit who engaged in bullying and intimidation of staff. In the recent past, before the clinical nurse job selection process in early 2007, I cannot recall my line managers, Ms Karen Wheilan, Ms Marina Kay, or Mr Simon Mitchell, informing me that my conduct in the workplace was bullying or intimidating to other staff.

In fact, the feedback at the time that I was receiving about my conduct and behaviour in the workplace, as stated in the official documents, such as the performance appraisal and development agreement dated the 15th of March 2007, signed by Ms Karen Wheilan, was that I demonstrated a profession approach at all times with patients and staff when required, treat all staff with respect and equal. I had no idea that this was not the truthful view or perception of my managers, Ms Karen Wheilan or Mr Simon Mitchell. Mr Simon Mitchell, in his position of authority, failed to provide me with his honest opinion of my conduct and behaviour in the workplace.

I was unaware of Mr Mitchell's perception of me being a bully in the workplace in early-2007. In Mr Mitchell's affidavit at paragraph 94, he states that the applicant's conduct in the endoscopy unit had a detrimental effect on the culture of the unit. If my managers, Ms Karen Wheilan or Mr Simon Mitchell, perceived me as a bully, they failed to provide me with the procedural fairness to have implemented performance management plans and strategies to provide the opportunity to alter my conduct and behaviour if necessary. At this time, my interactions with my work colleagues disputed their perception. At this time I had no idea that this is how I was being managed. It was dishonest, procedurally unfair, and unjust for me to be managed in this way.

In early to mid-2007, Mr Simon Mitchell never presented me personally with any complaint, allegation, document, or evidence to support her perception of me being a bully, but later on warned Ms Virginia Carter before Ms Virginia Carter became my line manager in November 2007. On the day I was to attend a selection process for job promotion in March of 2007, I was handed a letter dated the 12th of March 2007 by Ms Karen Wheilan, who was to be the chair of that selection panel. I was pissed off with this letter dated the 12th of March

2007 handed to me by Ms Karen Wheilan and I withdrew my interview – I

withdrew from the interview process for the job promotion. I dug a deep trench and went into battle. I then reported two work colleagues for alleged thefts.

Following this, the two employees were promoted into positions as my direct supervisors, allocating my daily duties and reporting on my attitude and behaviour. This did not work, nor would it work in any workplace. At this point, my genuine attempts to advocate for patients and their safety became difficult which increased my frustrations within the endoscopy unit. Even though I work clinically well within the endoscopy unit, my conduct and behaviour had changed as I became guarded. My complaints became voluminous, personal, inappropriate and improper. I had burnt bridges in my professional working relationships.

DEPUTY PRESIDENT: Now, all of those points – and you agree that that's

what's happened?

MR MINOGUE: That's what I agreed that happened, yes.

DEPUTY PRESIDENT: Yes. Okay.

MR MINOGUE: I have been a self-representing applicant in this matter and now have experienced the overwhelming difficulties that that creates. At no point did I intentionally attempt to deceive or lie in this Commission. If the Commission finds the dismissal to be unfair and that it was harsh, unjust or unreasonable, it is my view that the reinstatement to my former position within the endoscopy unit would be workable and a testament to what can be

achieved when adversity is faced. With reinstatement – it is already clinically

evident in Ms Lynn Rowland's letter dated the 3rd of April that there has never been any question raised regarding my clinical abilities or the technical performance of my duties.

It is evident that the complaint process that I have progressed consolidates a perception that it would be difficult to be returned back into my workplace. I have burnt bridges in working relationships in Queensland Health, but bridges can be rebuilt. It is my view that what has happened today could be an opportunity to turn things around very quickly and rebuild burnt bridges and better working relationships. I have acknowledged that I have trust issues with two of my supervisors, that is Ms Estelle Bain and Ms Virginia Carter, which works both ways.

In relation to Ms Estelle Bain, as I do not work with her directly, there will be an opportunity to maintain a professional relationship with a need to only interact infrequently. As my line manager, Ms Virginia Carter, I will have an opportunity to start afresh, discuss our misunderstandings and develop a professional working relationship. Ms Carter will have the opportunity set out reasonable performance expectations which I would have to comply with such expectations. Ms Carter will have the use of my clinical expertise for the endoscopy unit. Just in summary, if there is any hope in reinstatement, it should be at least given a chance to show that something could be created."

Matters to be considered in deciding the application

[9] Having regard to the admissions made by the applicant set out in the preceding paragraph, it is not necessary to outline in great detail the factual background to the termination. It is therefore convenient to turn at this point to the matters which s 77 of the Act requires the Commission to consider in determining whether a dismissal was harsh, unjust or unreasonable:

"77 Matters to be considered in deciding an application

In deciding whether a dismissal was harsh, unjust or unreasonable, the

commission must consider–

(a) whether the employee was notified of the reason for dismissal; and (b) whether the dismissal related to–

(i) the operational requirements of the employer's undertaking,

establishment or service; or

(ii) the employee's conduct, capacity or performance; and

(c) if the dismissal relates to the employee's conduct, capacity or

performance–

(i) whether the employee had been warned about the conduct,

capacity or performance; or

(ii) whether the employee was given an opportunity to respond to the allegation about the conduct, capacity or performance; and

(d) any other matters the commission considers relevant."

Notification of reason for dismissal

[10]   The evidence before the Commission shows that the termination letter of 3 April 2013 from Ms Rowland clearly, and in some detail, notified the applicant of the reasons for the his dismissal.

[11] Accordingly, for the purpose of satisfying s 77(a), I conclude that the applicant was notified of the reasons for his dismissal.

To what the dismissal related

[12] For the purpose of satisfying s 77(b), I conclude that, as the dismissal letter of 3 April 2013 made clear to the applicant, his dismissal related to his conduct as an employee of the respondent.

Whether the applicant was given an opportunity to respond to the allegations

[13] Given my conclusion with respect to s 77(b), I am required by s 77(c) to consider whether the applicant was either warned about the conduct to which his dismissal related, or was given an opportunity to respond to the allegations about that conduct.

[14]    By letter dated 7 November 2012 ("Revisited Suspension and Show Cause Notice"), the respondent outlined the two allegations against him. He was afforded an opportunity to respond and the Queensland Nurses' Union, Industrial Union of Employees ("QNU") submitted a response on his behalf by letter dated 23 November 2012.

[15]   On 7 December 2012, Ms Julia Squires forwarded to the applicant a detailed show cause letter seeking a response from the applicant as to why disciplinary action should not be taken against him. In particular, the applicant was asked to show cause within seven days of receipt as to why his employment should not be terminated.

[16]    On 17 December 2012, the QNU wrote to the respondent to advise that the applicant had lodged a disciplinary appeal under the Public Service Act 2008 and that the applicant would not be submitting a response to the proposed penalty.

[17]   On 4 February 2013, President Hall, acting in his capacity as an "Appeals Officer" under the Public Service Act 2008 dismissed the applicant's disciplinary appeal for want of jurisdiction.

[18]    On 6 February 2013 the respondent again wrote to the applicant providing a further seven days in which to respond to the show cause letter in relation to penalty.

[19]   The QNU wrote to the respondent on 14 February 2013 advising that they did not agree with the findings and would not be submitting a response on the proposed penalty.

[20] In light of the facts outlined above, the Commission is satisfied in accordance with s 77(c)(ii) that, in considering the evidence before it, the applicant has been given an opportunity to respond to the allegations against him.

Other relevant matters

[21] Section 77(d) allows the Commission to consider any other matters it considers relevant.

[22] The applicant did not pursue the allegation that the respondent breached s 104(1)(i) of the Act.

[23]    The unchallenged evidence of Ms Estelle Bain, as set out in her affidavit, outlines in some detail the course of conduct in which the applicant engaged over a long period of time at Townsville Hospital. Ms Bain outlines instances of serious allegations being made against co-workers and allegations about workplace harassment, none of which were substantiated.

[24]   Ms Bain's affidavit further outlines the applicant's refusal to participate in

"Performance Appraisal and Development" with his immediate supervisor, Ms

Virginia Carter. The applicant alleges that the respondent was using the appraisal

4

process to "threaten, intimidate, humiliate, offend and harass" him.

[25]   In cross-examination, Counsel for the respondent raised with the applicant the allegation that he had been "assaulted" by Ms Amelia Lewis when, standing behind the applicant, she fluffed a pillow. Notwithstanding an apology from Ms Lewis, the application continued to complain for some six months.

[26]   The applicant was also cross-examined about an incident involving the removal of chairs from the nurses' station in the Endoscopy Unit. The applicant maintained his complaint for 18 months even though the chairs were returned the following day.

[27]   The applicant's conduct reveals a persistent pattern of elevating issues which, to a reasonable person might seem trivial or trifling, to a level which is disproportionate to the original issue. The applicant engaged in what he described as "trench warfare".

[28]   Whilst an employee may raise matters of legitimate concern with his or her superiors, the conduct engaged in by the applicant was disrespectful and his language offensive and derogatory.

[29]    In the applicant's submission to the Commission he states:

"On 9 August 2011 the applicant filed an industrial dispute seeking to have nine documents removed from his personnel file which he claimed were intimidating, offensive and detrimental to him personally and professionally. The matter came before Deputy President Bloomfield and following a conference and agreement was reached between the applicant and respondent. Notwithstanding an agreement had been reached, the applicant wrote to the Director-General on 10 August 2011 requesting that disciplinary action be taken against those persons who were responsible for the creation of the documents."

[30]   The applicant submitted 23 fair treatment appeals and not one appeal was successful.

[31]   I accept the evidence of Ms Rowland that the applicant's behaviour demonstrated that the working relationship had broken down to a point at which it was irreconcilable. The applicant's conduct in continually seeking to prosecute and re- prosecute matters leads me to the conclusion that he is incapable of accepting any outcome that is given.

[32]    I am of the view that the re-agitation of issues even after a resolution or agreement had been reached demonstrated a lack of honesty and trust which is vital for an effective working relationship between employer and employee.

Conclusion and order

[33]   I accept that the respondent was left with no other position but to terminate the applicant's employment. His continued presence in the Townsville Hospital and Queensland Health would have had a serious impact on the employment relationship, his co-workers, and potential to damage the delivery of patient care.

[34] Having carefully weighed all the evidence and considered the matters which s 77 of the Act requires the Commission to consider, I have formed the conclusion that the applicant's dismissal was not harsh, unjust or unreasonable.

[35]    The applicant has failed to demonstrate that the dismissal was "unfair".

[36]    The application is dismissed.

[37] Costs reserved.

The applicant never alleged that his dismissal was for an "invalid reason", so there is no need to deal with

sub-para (b) of s 73(1) in this decision.
2
Bostik (Australia) Pty Ltd v Gorgevski (No 1) (1992) 36 FCR 20, 28.
3

T.5-2 Ll. 24-41.

4

Exhibit 21 [650].