Norbury v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION_:	Norbury v State of Queensland (Queensland Health) [2021] QIRC 427
PARTIES:	Norbury, Elsie (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2021/260
PROCEEDING:	Public Service Appeal – appeal against discipline decision
DELIVERED ON:	15 December 2021
MEMBER: HEARD AT:	Hartigan IC On the papers
ORDERS	*1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016* (Qld), the disciplinary decision appealed against be confirmed. 2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision made on 10 August 2021 be revoked.**
CATCHWORDS: LEGISLATION:	PUBLIC SERVICE – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – PUBLIC SERVICE APPEAL – appeal against a fair treatment decision – where appellant seeks to withdraw fair treatment appeal and seeks review of the disciplinary decision pursuant to s 194(1)(b)(i) of the Public Service Act 2008 (Qld) – where respondent does not object to appellant seeking review of disciplinary decision – where appellant alleges disciplinary action taken is harsh and unreasonable – where appellant alleges respondent did not have regard to mitigating factors – where disciplinary decision fair and reasonable in all the circumstances – where disciplinary decision confirmed – where stay of decision revoked Industrial Relations Act 2016 (Qld) ss 562B(2), 562B(3), 562C, 566 Public Service Act 2008 (Qld) ss 187, 188, 194
CASES:	Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245 Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).

Reasons for Decision

Introduction

Ms Elsie Norbury ('Ms Norbury') is employed by the State of Queensland (Queensland Health) ('the Department') on a permanent part time basis (64 hours per fortnight) as a Clinical Nurse, Specialist Outpatient Department ('SOPD') at the Bundaberg Hospital, within the Wide Bay Hospital and Health Service ('WBHHS').
On 24 September 2020, the chief executive of the WBHHS appointed an independent investigator to commence an investigation into allegations of inappropriate conduct, bullying and harassment within the SOPD at the Bundaberg Hospital.
By letter dated 2 December 2020, Ms Norbury was advised that the WBHHS had undertaken an independent external investigation in response to alleged conduct occurring within the SOPD. The letter stated that a pre-liminary investigation had identified allegations of inappropriate conduct against Ms Norbury, and invited
Ms Norbury to attend an interview to respond to the allegations on 10 December 2020. This meeting was subsequently rescheduled to 17 December 2020.
On 1 February 2021, the WBHHS was provided with a copy of the external investigation report, and, in relation to Ms Norbury, accepted the findings of the investigator that three allegations had been substantiated and two allegations had been partially substantiated.
On 28 February 2021, the WBHHS issued Ms Norbury with a first show cause notice, asking Ms Norbury to provide a response to the five allegations, prior to the WBHHS making any further proposals regarding an outcome or disciplinary action.

On 25 June 2021, following a second show cause process, the Department, through an authorised delegate from WBHHS, wrote to Ms Norbury and advised her that the five allegations remained substantiated or partially substantiated ('the finding decision') and that it was proposing disciplinary action in the form of a reprimand and a reduction in classification level from a clinical nurse to a registered nurse for a period of 12 months. The decision maker also proposed implementing management action.

By letter dated 19 July 2021, the decision maker determined to take the lesser disciplinary action of a reprimand and a forfeiture in remuneration increment from NRG6-1 Level 4 to NRG6-1 Level 3 for a period of 12 months ('the disciplinary decision'). The decision maker also imposed management action including a meeting to discuss codes of conduct, standards of practice and ethics, pursuant to the Nursing and Midwifery Board, Australian Health Practitioner Regulation Agency (AHPRA) and implementing a three-month Performance Improvement Plan.
Decision appealed against
On 20 July 2021, Ms Norbury appealed the finding decision dated 25 June 2021, pursuant to s 194(1)(eb) of the Public Service Act 2008 (Qld) ('the PS Act') ('fair treatment appeal').
On 10 August 2021, this Commission ordered that the decision subject of the appeal be stayed until the determination of the appeal or further order of the Commission pursuant to s 566(1) of the Industrial Relations Act 2016 (Qld) ('the IR Act').
On 17 August 2021, Ms Norbury, through her union, Queensland Nurses and Midwives Union of Employees ('QNMU'), provided written submissions advising that she was withdrawing her fair treatment appeal in relation to the finding decision and instead, was making written submissions with respect to the disciplinary decision under s 194(1)(b)(i) of the PS Act.[1] In essence, Ms Norbury appears to seek to amend the Appeal Notice to withdraw the appeal of the fair treatment decision and to appeal the disciplinary decision, although no formal request was made.
[1] Appellant's submissions filed 17 August 2021.
The manner in which Ms Norbury has proceeded is not procedurally conventional. However, given the Department has not objected to that course, and in consideration that both parties have filed written submissions addressing the disciplinary decision, I will allow the Appeal Notice to be amended so as to include the disciplinary decision and to withdraw any reference to the finding decision.
Appeal process
The appeal is made pursuant to s 197 of the PS Act, which provides that an appeal under Ch. 7, Pt. 1 of the PS Act is to be heard and determined under Ch. 11 of the IR Act by the Queensland Industrial Relations Commission.
Sections 562B(2) and (3) of the IR Act, which commenced operation on 14 September 2020, replicate the now repealed ss 201(1) and (2) of the PS Act.[2] Section 562B(3) of the IR Act provides that the purpose of an appeal is to decide whether the decision appealed against was fair or reasonable. Accordingly, the issue for my determination in this appeal is whether the decision is fair and reasonable.
[2] See the Public Service and Other Legislation Amendment Act 2020 (Qld).
I must decide the appeal by reviewing the decision appealed against. The word 'review' has no settled meaning and, accordingly, it must take its meaning from the context in which it appears.[3] An appeal under Ch. 7, Pt. 1 of the PS Act is not a re-hearing but, rather, involves a review of the decision arrived at and the decision-making process associated with it.[4]
[3] Brandy v Human Rights and Equal Opportunity Commission [1995] HCA 10; (1995) 183 CLR 245, 261 (Mason CJ, Brennan and Toohey JJ).
[4] Goodall v State of Queensland (Unreported decision of the Supreme Court of Queensland, Dalton J, 10 October 2018).
For the reasons contained herein, I have found that the decision was fair and reasonable.
The decision
In the finding decision, the decision maker ultimately determined that the following allegations against Ms Norbury was substantiated or partially substantiated:
Allegation One
It is alleged you behaved in a disrespectful, derogatory and denigrating manner towards the NUM, Ms Lola Bray, on numerous occasions over the last several years. In particular, you undermine her, you fail to follow lawful and reasonable instructions from Ms Bray, you ignore her, you incite other staff to be disrespectful towards her and you speak rudely to her.
Allegation Three
It is alleged that at some time in August or September 2020, after another nurse noticed you had a cake in your hand and asked you what the celebration was for, you stated "we're celebrating that Lola's gone" in reference to your Nurse Unit Manager (NUM), Ms Lola Bray.
Allegation Four
It is alleged that you exclude and ignore other members of staff, including staff you perceive are too close to your Nurse Unit Manager (NUM), Ms Lola Bray and that you manipulate new staff and negatively influence their attitude and opinion of the NUM, Ms Lola Bray. In particular, it is alleged that you excluded two of your colleagues, Ms Debbie Gamlin and Ms Gail Evans.
Allegation Sixteen
It is alleged that you engaged in threatening behaviour towards the Nurse Unit Manager (NUM), Ms Lola Bray, by stating that if you changed her roster, she would make a complaint to HR about you for discrimination.
Allegation Nineteen
It is alleged that during a team facilitation day on 10 August 2020 regarding the culture of the SOPD unit, you wrote on a post-it note and it was placed on the whiteboard in view of the staff present, "sack the manager" (or similar words) "She should go" and "it's not about us" with the intent to humiliate and disrespect the Nurse Unit Manager (NUM), Ms Lola Bray, who was present in the room at the time.
On 19 July 2021, the decision maker imposed a disciplinary penalty pursuant to s 188(1) of the PS Act on Ms Norbury of:
· Reprimand
· Forfeiture of a remuneration increment from NRG6-1 Level 4 to NRG6-1 Level 3, for a period of 12 months.
The decision maker also imposed the following management action:
· A meeting with Ms Fiona Sewell, Executive Director of Nursing and Midwifery, to discuss professionals standards with respect to codes of conduct, standards of practice and codes of ethics pursuant to the Nursing and Midwifery Board (AHPRA).
· Implementation of a Performance Improvement Plan (PIP) for a period of three (3) months.
In reaching the disciplinary decision, the decision maker had regard, in summary, to the following matters:
(a)     Ms Norbury accepts the disciplinary penalty of reprimand.
(b)     Ms Norbury apologised and showed remorse.
(c)     The focus of the matter resulting in the disciplinary penalty was in relation to the disrespectful and inappropriate behaviour Ms Norbury displayed as a senior member of the SOPD, and the impact that behaviour had on her colleagues.
(d)     Ms Norbury's actions did not reflect the expectations of her role description.
(e)     Ms Norbury's inappropriate behaviour and conduct in the workplace has not met the standards of a Clinical Nurse, nor the values of the WBHHS.
(f)      The long standing systemic and behavioural issues are directly related to the inappropriate behaviour Ms Norbury has demonstrated over a long period of time and has contributed to the culture of the SOPD.
(g)     Ms Norbury acknowledges that management has engaged in informal conversations with her about her communication.
(h)     The proposed disciplinary penalties are not harsh or disproportionate, considering the impact Ms Norbury's behaviour has had on her colleagues, and the standard of behaviour expected in the role as Clinical Nurse, which is to role model desired behaviours to staff within the SOPD.
(i)      The Performance Improvement Plan is to support Ms Norbury in improving her behaviour which has been consistently not up to the expected standard.
(j)      The substantiated and partially substantiated allegations have further demonstrated Ms Norbury's behaviour and conduct requires improvement.
(k)     It is fair and reasonable to implement a Performance Improvement Plan in accordance with Directive 15/20 Positive Performance Management.
(l)      It is expected in future that Ms Norbury will demonstrate the values of the WBHHS, role model the behaviour that is expected of a Clinical Nurse and behave appropriately in the workplace.

Relevant legislation and Directive

Section 187 of the PS Act provides for the grounds for discipline as follows:
187      Grounds for discipline
(1)    A public service employee’s chief executive may discipline the employee if the chief executive is reasonably satisfied the employee has—
(a)     engaged in repeated unsatisfactory performance or serious under performance of the employee’s duties, including, for example, by performing duties carelessly, incompetently or inefficiently; or
(b)    been guilty of misconduct; or
(c)     been absent from duty without approved leave and without reasonable excuse; or
(d)    contravened, without reasonable excuse, a direction given to the employee as a public service employee by a responsible person; or
(e)     used, without reasonable excuse, a substance to an extent that has adversely affected the competent performance of the employee’s duties; or
(ea) contravened, without reasonable excuse, a requirement of the chief executive under
section 179A (1) in relation to the employee’s appointment, secondment or employment by, in response to the requirement—
(i)failing to disclose a serious disciplinary action; or
(ii)giving false or misleading information; or
(f)   contravened, without reasonable excuse, a provision of this Act; or
(g)    contravened, without reasonable excuse, a relevant standard of conduct in a way that is sufficiently serious to warrant disciplinary action.
(2)    A disciplinary ground arises when the act or omission constituting the ground is done or made.
(3)    Also, a chief executive may discipline, on the same grounds mentioned in subsection (1) —
(a) a public service employee under section 187A; or
(b) a former public service employee under section 188A .
(4)    In this section—
misconduct means—
(a)     inappropriate or improper conduct in an official capacity; or
(b)    inappropriate or improper conduct in a private capacity that reflects seriously and adversely on the public service.
Example of misconduct—
victimising another public service employee in the course of the other employee’s employment in the public service
relevant standard of conduct, for a public service employee, means—
(a)     a standard of conduct applying to the employee under an approved code of conduct under the Public Sector Ethics Act 1994; or
(b)    a standard of conduct, if any, applying to the employee under an approved standard of practice under the Public Sector Ethics Act 1994.
responsible person, for a direction, means a person with authority to give the direction, whether the authority derives from this Act or otherwise.

Section 188 of the PS Act sets out the disciplinary action that may be taken against a public service employee as follows:
188      Disciplinary action that may be taken against a public service employee
(1)In disciplining a public service employee, the employee’s chief executive may take the action, or order the action be taken, (disciplinary action) that the chief executive considers reasonable in the circumstances.
Examples of disciplinary action—
·        termination of employment
·        reduction of classification level and a consequential change of duties
·        transfer or redeployment to other public service employment
·        forfeiture or deferment of a remuneration increment or increase
·        reduction of remuneration level
·        imposition of a monetary penalty
·if a penalty is imposed, a direction that the amount of the penalty be deducted from the employee’s periodic remuneration payments
·        a reprimand
(2)If the disciplinary action is taken following an agreement under section 187A (4) between the previous chief executive and the current chief executive mentioned in the section, the chief executives must agree on the disciplinary action.
(3)However, a monetary penalty can not be more than the total of 2 of the employee’s periodic remuneration payments.
(4)Also, an amount directed to be deducted from any particular periodic remuneration payment of the employee—
(a)must not be more than half of the amount payable to or for the employee in relation to the payment; and
(b)must not reduce the amount of salary payable to the employee in relation to the period to less than—
(i)if the employee has a dependant—the guaranteed minimum wage for each week of the period; or
(ii) otherwise—two-thirds of the guaranteed minimum wage for each week of the period.
(5)In acting under subsection (1), the chief executive must comply with this Act and any relevant directive of the commission chief executive.
(6)An order under subsection (1) is binding on anyone affected by it.

Section 194 of the PS Act relevantly identifies the decisions against which appeals may be made as follows:
194 Decision against which appeals may be made
(1)An appeal may be made against the following decisions—
(b)a decision under a disciplinary law to disciplinary –
(i)A person (other than by termination of employment), including the action take in disciplinary the person; or
…
(eb)a decision a public service employee believes is unfair and unreasonable (a fair treatment decision);
…

Directive 14/20: Discipline ('Discipline Directive') came into effect on 25 September 2020. The purpose of the Discipline Directive, amongst other things, is to outline the process for managing disciplinary action under the PS Act.
Clause 8.3 of the Discipline Directive relevantly provides the process that must be followed in commencing a show cause process for a disciplinary finding as follows:
(a)     The chief executive is to provide the employee with written details of each allegation and invite the employee to show cause why a disciplinary finding should not be made in relation to each allegation (a show cause notice on disciplinary finding):
(b)     Written details of each allegation in clause 8.3(a) must include:
(i)       the allegation
(ii)      the particulars of the facts considered by the chief executive for the allegation
(iii) the disciplinary ground under section 187 of the PS Act that applies to the allegation.
(c)      A copy of all evidence relevant to the facts considered by the chief executive for each allegation in clause 8.3(a) must be provided to the employee, including, where relevant, specific reference to page or paragraph numbers that comprise the relevant evidence.
(d)     The chief executive must provide the employee with a minimum of 14 days from the date of receipt of a show cause notice on disciplinary finding to consider and respond to the notice, having regard to the volume of material and complexity of the matter. The chief executive may grant, and must consider any request for, an extension of time to respond to a show cause notice on disciplinary finding if there are reasonable grounds for extension.
(e)      If the employee does not respond to a show cause notice on disciplinary finding, or does not respond within the nominated timeframe in clause 8.3(d) and has not been granted an extension of time to respond, the chief executive may make a decision on grounds based on the information available to them.
Clause 8.4 of the Discipline Directive provides for a decision on grounds as follows:
(a)     A chief executive must review all relevant material, including any submissions from the employee, and make a decision on the disciplinary finding on the balance of probabilities.
(b)     The chief executive must advise the employee of the chief executive’s finding in relation to each allegation included in the show cause notice on disciplinary finding.
(c)      For each finding in clause 8.4(a) the chief executive must clearly explain their finding of fact on the balance of probabilities, including the evidence relied on to reach the finding, and state if the disciplinary ground to which the allegation was applied has been established.
(d)     The employee is to be informed of the finding and explanation of the finding in writing, including information that the employee may appeal the disciplinary finding.
(e)      If the chief executive determines that discipline ground/s have been established, the chief executive may consider whether disciplinary action should be proposed (clause 8.5) and/or management action implemented, or to take no further action.
If the chief executive determines that no ground/s for discipline have been established, the chief executive may consider whether any management action is required and advise the employee in writing.

Clause 8.5 (d) of the Discipline Directive sets out the factors the chief executive should consider when proposing appropriate and proportionate disciplinary action. The considerations are as follows:

(i)the seriousness of the disciplinary finding

(ii)the employee’s classification level and/or expected level of awareness about their performance or conduct obligations
(iii)whether extenuating or mitigating circumstances applied to the employee’s actions
(iv)the employee’s overall work record including previous management interventions and/or disciplinary proceedings
(v)the employee’s explanation (if any)
(vi)the degree of risk to the health and safety of employees, customers and members of the public
(vii)the impact on the employee’s ability to perform the duties of their position
(viii)the employee’s potential for modified behaviour in the work unit or elsewhere
(ix)the impact a financial penalty may have on the employee
(x)the cumulative impact that a reduction in classification and/or pay-point may have on the employee
(xi)the likely impact the disciplinary action will have on public and customer confidence in the unit/agency and its proportionality to the gravity of the disciplinary finding.

Whether the decision was fair and reasonable

The QNMU, on behalf of Ms Norbury, raise the following grounds in support of the appeal of the disciplinary decision:

(a)     the disciplinary outcome is harsh and unreasonable, particularly when considered in conjunction with management action ('ground one');
(b)     it is harsh and unreasonable to discipline one staff member, particularly with a financial penalty, when Ms Norbury admits that systemic behaviours were prevalent through the entire department ('ground two');
(c)     the Department determined the allegations were substantiated and a disciplinary penalty was proposed without giving sufficient weight to
Ms Norbury's previous work record ('ground three'); and
(d)     the proposed temporary reduction in remuneration will result in an unreasonable loss of income of approximately $2,300 gross, and a subsequent reduction in superannuation ('ground four').

Given the nature of the matters raised by Ms Norbury, I will address grounds one and four together, after I have addressed grounds two and three.

Grounds two and three

Ms Norbury contends that it was unreasonable that, whilst the Department determined that there were 'long standing systemic behavioural issues', and attributed those issues to Ms Norbury's conduct, the issues had not previously been addressed with Ms Norbury through any performance meetings or performance improvement process as required by the Discipline – Human Resources (HR) Policy E10 (QH-POL-124) ('Discipline Policy'), or the Performance Improvement HR Policy G11 (QH-POL-190) ('Performance Improvement Policy').
Further, Ms Norbury argues that the Department enabled the long-standing behaviours, which were not limited to Ms Norbury, to continue, which is in direct contravention of
s 25A of the PS Act.
Ms Norbury contends that the Respondent had an obligation under the PS Act to raise any concerns it had with the Appellant to ensure she was aware of the concerns and had an opportunity to respond and to improve, and that this did not occur.
Whilst the Discipline Policy identifies the key principles to be applied in conducting a discipline process, to include, for instance, early intervention, in the hope, inter alia, for the cessation of the unacceptable conduct and/or earlier resolution of matters, that does not preclude disciplinary action from taking place when the decision maker is reasonably satisfied, based on the evidence before them, that the employee may be subject to discipline.
It is not the case that Ms Norbury contends that the delegate should not have been reasonably satisfied that there was a basis to discipline her.
It is the case, in this matter, that the Department initiated an internal investigation with respect to allegations of inappropriate conduct, bullying and harassment within the SOPD at the Bundaberg Hospital.
It was during the course of that investigation that a number of allegations with respect to Ms Norbury were identified. Consequently, the show cause process as referred to above was commenced.
I am satisfied that the Department has complied with the PS Act and all relevant policies including but not limited to, the Discipline Policy, and on the basis that there were grounds for discipline and disciplinary action based on the evidence before the decision maker.
Whilst it may be said that Ms Norbury's conduct formed part of the reports of systemic misbehaviour within the SOPD, which was the basis for the initial investigation, it is clear from the nature of the allegations that they relate solely to Ms Norbury's conduct. It must be remembered that Ms Norbury was a senior member of staff fulfilling the role of clinical nurse. She had been employed as a nurse since 1994 and employed at the Bundaberg Hospital for some significant period of time.
It is said by the Department that, Ms Norbury was at all times bound by the PS Act and the Code of Conduct for the Queensland Public Service and was obligated to ensure her conduct met the standard expected of a senior health service employee. I consider it was open on the evidence for the decision maker to have formed such a conclusion.
In addition, it is noted that in the material there is reference to the fact that Ms Norbury had previously been counselled regarding inappropriate workplace conduct in the past, and nevertheless engaged in the conduct which was ultimately substantiated during the show cause process.
Ms Norbury's reliance on ground two does not support a conclusion that the decision was not fair and reasonable.
With respect to ground three, Ms Norbury contends that insufficient weight was given to previous matters affecting the relationship between Ms Norbury and the NUM, Ms Bray, including a complaint lodged by Ms Norbury on 9 July 2020.
There are no particulars provided on behalf of Ms Norbury as to why the complaint made on 9 July 2020 would have, if sufficient weight had been placed on it, resulted in a different outcome with respect to the matter. It is difficult to determine, based on the evidence before me, as to why a separate complaint lodged by Ms Norbury with respect to Ms Bray, would have had an impact upon the allegations that were before the decision maker with respect to Ms Norbury's conduct. It is not, for instance, suggested by
Ms Norbury, that the allegations that were investigated during her show cause process were in some way a form of retaliation for her earlier complaint.
In any event, I note that a number of employees were the source of the complaint with respect to Ms Norbury's conduct and accordingly, given the number of differing complainants and the body of evidence relied on by the decision maker in determining the allegations to be substantiated, I do not consider that the complaint made by
Ms Norbury in July 2020 was relevant to the show cause process or the disciplinary decision.
I further note, in any event that Ms Norbury, by amendments to the notice of appeal, does not seek to attack the finding decision. Ground three does not establish that the disciplinary decision was not fair and reasonable.
Grounds one and four
Ms Norbury contends that the disciplinary outcome was harsh and unreasonable, particularly when considered in conjunction with the management action proposed. She further argues that the proposed 12-month temporary reduction in remuneration will result in an unreasonable loss of income of approximately $2,300 gross, and a subsequent reduction in superannuation.
Following the substantiation and partial substantiation of the allegations, the Department proposed to take disciplinary action in the form of a reprimand and a reduction in classification level, and consequential change of duties from clinical nurse to registered nurse. In addition to the disciplinary action, it was also proposed that Ms Norbury participate in a performance improvement plan and meeting with Ms Fiona Sewell, Executive Director of Nursing and Midwifery to discuss professional standards with respect to the code of conduct, standards of practice and codes of ethics pursuant to the Nursing and Midwifery Board (AHPRA).

On 23 June 2021, the QNMU on behalf of Ms Norbury, provided a response to the proposed disciplinary action.
In its submissions, the QNMU stated that Ms Norbury regrets and apologises for any communication which has been viewed as inappropriate or disrespectful, and views herself as a professional and experienced clinical nurse and is open to learning and improving her communication, together with further submissions going to mitigation.
Ultimately, it is clear that the Department had regard to the submissions made on behalf of Ms Norbury, including the mitigating factors that were put forward on her behalf. Relevantly, the Department's submissions note the regard the decision maker had for these matters as follows:
17. The Appellant was issued with correspondence from the Chief Executive, WBHHS, dated 25 June 2021, that advised all material had been carefully considered, including the responses provided by the QNMU on behalf of the Appellant. The Chief Executive, WBHHS, outlined that the behaviour and conduct demonstrated, was in no way at the expected standards of a nursing professional or a senior employee of the WBHHS. Employees are expected to behave and conduct themselves in accordance with the WBHHS Values such as Collaboration, Accountability, Respect, Excellence and Through Patients' Eyes. Employees are expected to also abide by the expectations outlined within the Code of Conduct for the Queensland Public Service. The Chief Executive, WBHHS, acknowledged that the Appellant had demonstrated remorse for her part in the systematic issues, her lack of appropriate behaviour during times of frustration, her perceived inappropriate and disrespectful communication and her assurance that she will endeavour to improve and learn in this area.

Consequently, on 19 July 2021, the Department imposed disciplinary action which was amended from what was initially proposed, to be a reprimand and forfeiture of a remuneration increment from NRG6-1 Level 4 to NRG6-1 Level 3 for a period of 12 months. The management action initially proposed was maintained.
Accordingly, by lessening the proposed disciplinary action, the decision maker clearly took into account mitigating factors relevant to Ms Norbury. I consider that the decision strikes a balance between having regard to those mitigating factors and the seriousness of the allegations which were substantiated.
With respect to the financial impact of the penalty, Ms Norbury does not identify the extent to which a reduction in classification level will have a consequence on her or on her financial position. It is however accepted that, a reduction in classification with the consequential loss of remuneration of $2,300 gross, for a period of 12 months is likely to have some impact upon Ms Norbury's financial standing.
Ultimately, I have concluded that, having regard to the factual circumstances of the substantiated conduct, it is not unfair or unreasonable to impose a financial penalty in the circumstances of this matter. I note that the Department has taken into account all relevant mitigating factors that have been submitted on behalf of Ms Norbury, and as a result, have preferred to impose a forfeiture of a remuneration increment whilst maintaining Ms Norbury in the clinical nursing role, rather than to demote Ms Norbury to the role of registered nurse.
I consider that it was open, on the material before the decision maker, to form a view that the proposed disciplinary action was fair and reasonable.
I consider the substantiated conduct to be serious, and that in all of the circumstances of the matter, including the mitigating factors relied on by Ms Norbury, that the disciplinary decision is fair and reasonable.

Conclusion

For the foregoing reasons I have concluded that in the circumstances of this matter, the disciplinary decision was fair and reasonable.
Orders
For the foregoing reasons, I make the following orders:
1. Pursuant to s 562C(1)(a) of the Industrial Relations Act 2016 (Qld), the disciplinary decision appealed against be confirmed.
2. Pursuant to s 566(1)(b) of the Industrial Relations Act 2016 (Qld), the stay of the decision made on 10 August 2021 be revoked.

[2021] QIRC 427

15 December 2021