Pringle v State of Queensland (Queensland Health)

QUEENSLAND INDUSTRIAL RELATIONS COMMISSION

CITATION:	Pringle v State of Queensland (Queensland Health) [2024] QIRC 182
PARTIES:	Pringle, Hannah (Appellant) v State of Queensland (Queensland Health) (Respondent)
CASE NO:	PSA/2024/56
PROCEEDING:	Public Sector Appeal – Fair Treatment Decision
DELIVERED ON:	26 July 2024
HEARING DATE:	8 May 2024 22 May 2024 (Respondent's written submissions) 5 June 2024 (Appellant's written submissions) 12 June 2024 (Respondent's amended written submissions)
MEMBER:	McLennan IC
HEARD AT:	Brisbane
ORDERS:	The orders contained in paragraph [206] of these Reasons for Decision.
CATCHWORDS:	PUBLIC SECTOR – EMPLOYEES AND SERVANTS OF THE CROWN GENERALLY – where the appellant's six-year-old daughter was diagnosed with terminal brain cancer and died five months later – where the respondent afforded the appellant a period of 8.25 weeks of paid special leave under Directive 05/17: Minister for Employment and Industrial Relations Directive: Special Leave – where the appellant sought additional paid special leave for the period 5 October 2022 to 1 September 2023 – where the appellant sought to return to work at a location other than QCH, where her daughter died – where the respondent has not sourced an alternative return to work location for the appellant – where the respondent did not approve any additional paid special leave for the appellant – whether or not the respondent's decision was fair and reasonable – where the respondent raised jurisdictional objections – where it was decided to hear the appeal – where an approved amount of 8.25 weeks of paid special leave was not fair and reasonable – consideration of Directive 05/17: Minister for Employment and Industrial Relations Directive: Special Leave –where the respondent did not determine the appellant's paid special leave application on the entirety of the mandatory decision criteria – where there is no evidence that the respondent considered the "impact on the employee, if the requested leave is not approved" – where the respondent did not handle the appellant's application "with sensitivity" – where an amount of 29 weeks paid special leave is reasonable and proportionate to the appellant's circumstances
LEGISLATION AND INSTRUMENTS:	Industrial Relations Act 2016 (Qld) s 27, s 28, s 29, s 47, s 562C Public Sector Act 2022 (Qld) s 133 Directive 04/23: Appeals cl 9 Directive 05/17: Minister for Employment and Industrial Relations Directive: Special Leave cl 7, cl 8, cl 9, cl 10, cl 11, sch 1, sch 2 Directive 05/20: Paid Parental Leave cl 8, cl 9, cl 10 Directive 11/20: Individual Employee Grievances Flexible Working Arrangements HR Policy C5 Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB11) 2022 cl 14 Nurses and Midwives (Queensland Health) Award - State 2015 s 7, s 25 Queensland Health Guideline for flexible working arrangements cl 5
APPEARANCES:	Mrs H. Pringle the Appellant in person. Mr H. Kecek from Crown Law for the Respondent.

Reasons for Decision

Background

Mrs Hannah Pringle (the Appellant) is employed on a full-time permanent basis with Queensland Health (the Department), State of Queensland (the Respondent).[1] She has worked for the Department for 12 years.[2]
[1] Appeal Notice filed 27 March 2024, 1.
[2] T 1-14, line 4.
Mrs Pringle has worked at the Queensland Children's Hospital (QCH) location since it opened in 2014.
Between 5 September 2022 and 4 September 2023, Mrs Pringle was seconded to Children's Health Queensland Hospital and Health Service (CHQHHS) as a Graduate Registered Nurse, after achieving her nursing degree qualification.[3]
[3] Exhibit 8, [5].
Mrs Pringle's substantive position is 'Dental Assistant', Children's Oral Health Service (COHS), with Metro North Hospital and Health Service (MNHHS). She is scheduled to return to that position at the conclusion of her current maternity leave. Inherent in that is a requirement to provide services at the QCH.[4]
[4] Correspondence from Mr M. Walsh, Director-General to Mrs H. Pringle dated 19 March 2024, 1.
Circumstances giving rise to the complaint
During the period of her nursing secondment to QCH, Mrs Pringle's six-year-old daughter Ruby was diagnosed with terminal brain cancer and died five months later.[5] Mrs Pringle described the family's ordeal thus:
I had no choice but to become her fulltime carer as she started to lose all bodily abilities while undergoing radiation, oncology appointments, regular MRIs and therapies, all while having no support from NDIS or palliative care.
Ruby was rushed to Queensland Children's Hospital 5 months after diagnosis unconscious where we had to make the unimaginable decision to take her off life support.
All these traumatising events occurred in my workplace. Making it impossible and unsafe for both me and patients for me to return to work due to mental health implications.[6]
[5] Appeal Notice filed 27 March 2024, 4.
[6] Ibid.
Mrs Pringle's complaint is that she had:
… applied for special leave in October 2022 however continuously received no response from Queensland Children's Hospital executive as per the directive until after Ruby's passing. This matter has not been dealt with in a sensitive manner at all as per the directive which has caused further mental health implications.[7]
[7] Ibid.
The directive referred to is Directive 05/17: Minister for Employment and Industrial Relations Directive: Special Leave (the Special Leave Directive).
Mrs Pringle has brought this public sector appeal because she believes that the:
… unique circumstances surrounding my daughter's terminal diagnosis and soon after death align with the provisions set forth in Directive 05/17 and that it should have warranted a considerable amount of compassionate consideration.[8]
[8] Ibid.
Question to be decided
The question to be decided is whether (or not) the Respondent's decision was fair and reasonable.
Relevant extracts of the decision are contained in correspondence dated 19 March 2023, that is:
… to not approve additional paid special discretionary leave in accordance with Directive 05/17 Special Leave (the Directive).
…
…your substantive role as a Dental Assistant for Children's Oral Health Service (COHS) is at Metro North Hospital and Health Service, and that you are scheduled to return to that position at the conclusion of your current maternity leave. You confirmed that it is a requirement of your role to provide services at the Children's Hospital Queensland. As I heard from you, you do not believe that you would be able to return to the Children's Hospital campus professionally, as you would find it too confronting. I acknowledge your concerns about this and can advise that your line manager with COHS, will explore your working arrangements with you closer to your return to work date.
You confirmed and intention to return to work initially on a part-time arrangement for three days per week. As I committed to you in our meeting, to support you in managing your transition back to work, and noting your concerns about fulfilling the duties of your role across both services, I am willing to support you to continue to accrue your leave entitlements of annual, sick and long service leave to the equivalent of a full time employee for a period of up to six months from your return to work.
With regards to your request for further special leave and financial compensation for the period 5 October 2022 to 1 September 2023, my decision remains unchanged. That is, I do not approve your request for additional paid special leave. You have previously been paid special leave during the period 9 January to 3 March 2023 and were then approved to access unpaid special leave for the period 6 March 2023 to 1 September 2023 in recognition of your particular circumstances. In line with the requirements of Directive 05/17, special discretionary leave (paid or unpaid) may only be approved where it is reasonable and proportionate to the relevant circumstances. This type of leave is not an entitlement. Whilst I acknowledge that Ruby's passing has been devastating for you and your family, I am unable to exercise my discretion to approve your request to receive paid special discretionary leave for a further 40 weeks in circumstances where I have already approved special leave proportionate to your circumstances and you can access other accrued leave entitlements.
With respect to your request for financial compensation, you list amounts comprising personal expenses you committed to on the basis of your salary and allowances for a period you were not working in addition to potential penalties / debt you may be liable for if you were to receive the paid special leave requested. Unfortunately, as the amounts claimed cannot be reconciled against any particular entitlement, there is not basis upon which Queensland Health or CHQHHS can pay these amounts.[9]
…
…Alternatively, should you wish to access more specialised psychological support, CHQHHS would be supportive of coordinating and funding three psychologist sessions over a six-to-12 month period, at a date and time determined by you.
Outcome sought
[9] Correspondence from Mr Michael Walsh, Director-General, Queensland Health to Mrs Pringle dated 19 March 2024.
Appeal Notice
In the Appeal Notice, Mrs Pringle sought:
·"a considerable amount of compassionate consideration" under the Special Leave Directive provisions,[10] given her "unique circumstances".
·a return to work at a location other than QCH, because that was where her young daughter died.[11]
[10] Appeal Notice filed 27 March 2024, 4.
[11] Ibid.
Decision letter
The decision letter[12] recounted the outcome sought by Mrs Pringle to be:
·additional paid Special Leave for the period 5 October 2022 to 1 September 2023 (that is, an extra 40 weeks).
·financial compensation for personal expenses for the period that she was not working, "in addition to potential penalties / debt you may be liable for if you were to receive the paid special leave requested."
·a work location other than QCH, when she returned to work in her substantive role as a Dental Assistant.
[12] Correspondence from Mr Michael Walsh, Director-General, Queensland Health to Mrs Pringle dated 19 March 2024.
At the Hearing

At the Hearing, Mrs Pringle explained that she sought paid special leave from 5 October 2022 until 1 September 2023, (that was for the remainder of her employment contract with QCH).[13]
[13] T 1-4, line 13-14.
Mrs Pringle quantified that amount to be:
… I formally request the back payment of my wages from October 5, 2022 to September 1, 2023 - a period covering the duration of my employment contract within ward 9A of QCH. This period spans 47 weeks and 2 days, equivalent to 10 months and 27 days. In accordance with Queensland Health's current nursing wage pay scale, a level one nurse, as I was, receives a base wage of $3,079.50 per fortnight, with an hourly rate of $40.5197 and an annual income of $80,342. Over this period, there are 23 fortnights and 1 week, resulting in a fortnightly salary of $3,079, multiplied by 23 fortnights, yielding a total of $70,817. Adding a weekly wage of $1,539.50 to account for the additional 1 week, the total back payment I should have been eligible for is $72,356.50.[14]
[14] Exhibit 4, 4.
Mrs Pringle requested special leave be approved for the period 5 October 2022 to 1 September 2023 because that:
… covers the duration of my employment contract with QCH and the palliative state of my daughter and the grieving period, as per (the Special Leave Directive), Other Exceptional Circumstances, c:
Dealing with terminal illness of child.
And d:
Employees who are mourning the death of a child.
As per this directive … it states:
These matters must be dealt with confidentially and sensitively.
Mrs Pringle also requested the "… reinstatement of the recreation (REC) leave that I was compelled to take due to QCH management's failure to process my claim in a timely manner:
I also request that this REC leave be reinstated into the appropriate payroll PAN (…08). Additionally, I request that the REC leave I should have accrued during the time when I should have been paid special leave at full pay be reinstated into the appropriate PAN (…99). Since my contract under PAN … 99 has concluded during the time this application has taken to be approved, I would like the accumulation of my REC leave within this PAN to be paid out as part of the lump sum payment for my back payment. Under no circumstances do I wish for the reinstatement of REC leave used from PAN …08 to be paid out.[15]
[15] Ibid 5.
Quantification of claim
In correspondence dated 9 September 2023, Mrs Pringle quantified her claim for back payment as follows:[16]
[16] Ibid 7-8.
… I formally request a total back payment of $130,017.89
·        Wages[17] - $72,356.50
·        FBT & Pension[18] - $7,833.05
·        CCS[19] - $16,769.34
·        Lost penalty rates - $10,000
·        Super contributions $7,959
·        HECs at 8% - $9,600
·        Lost professional development leave payment $2,000
·        Cost of living bonus - $3,500
·        = $130,017.89
The amount of $130,017.89 does not encompass the accumulation of my REC leave, which I wish to be paid out from my PAN … 99.
[17] That is, back payment of wages claimed from October 5, 2022 to September 1, 2023.
[18] That is, the receipt of back payment of wages would render Mrs Pringle ineligible for Family Tax Benefit received from Centrelink, resulting in a debt.
[19] That is, the receipt of back payment of wages would mean that Mrs Pringle had been overpaid for the 'Child Care Subsidy' received from Centrelink, resulting in a debt.
Summary of findings
The Respondent's decision, contained in the correspondence dated 19 March 2023, was not fair and reasonable.
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld) (IR Act), I have decided to set the Respondent's decision aside and substitute another decision.
A summary of findings contained in my decision are as follows:
1.The amount of paid special leave that the Director-General approved (8.25 weeks paid) was not "reasonable and proportionate" to Mrs Pringle's circumstances.
2.Further, Mrs Pringle's paid special leave application was not determined on the entirety of the mandatory decision criteria, as contained in the Special Leave Directive. There is no evidence that the Director-General considered "the impact on the employee, if the requested leave is not approved".
That was not fair and reasonable.
3.Instead, I have decided that an amount of 29 weeks[20] paid special leave is "reasonable and proportionate" to Mrs Pringle's circumstances. That equates to 928 hours of paid special leave. As Mrs Pringle has already received 264 hours of Paid Special Leave, I find that an additional amount of 664 hours (or 20.75 weeks) paid special leave is payable to her.
[20] 14 weeks + 14 weeks + 1 week.
4.The Director-General's decision not to re-credit Mrs Pringle the annual leave she accessed at half pay in the relevant period was fair and reasonable.
5.The Director-General's decision not to pay Mrs Pringle the amount she claimed for 'FTB & Pension' was fair and reasonable.
6.The Director-General's decision not to pay Mrs Pringle the amount she claimed for the overpayment of 'CCS' was fair and reasonable.
7.The Director-General's decision not to pay Mrs Pringle the amount she claimed for 'lost penalty rates' was fair and reasonable.
8.The Director-General's decision not to pay Mrs Pringle the amount she claimed for 'HECs' was fair and reasonable.
9.The Director-General's decision not to pay Mrs Pringle the amount she claimed for 'lost professional development payment' was fair and reasonable.
10.Superannuation is payable on additional amount of 664 hours paid special leave that I have determined is owed to Mrs Pringle.
11.The Respondent shall calculate the correct amount of COLA Payment that Mrs Pringle may be eligible to receive, under cl 14.3 of the agreement.
12.Mrs Pringle's accrued leave entitlements (such as annual leave, sick leave, long service leave) will require adjustment, to take account of the additional amount of 664 hours paid special leave that I have determined is owed to her.
13.Mrs Pringle has requested a work location, other than QCH, upon her return after current period of maternity leave.
It is apparent that Mrs Pringle cannot reasonably be expected to resume work at the QCH location, in circumstances where her young daughter died there.
It is open to Mrs Pringle to apply for a Flexible Working Arrangement (FWA) with respect to "the place where the employee works".[21] Such request must be made in writing on the required form, after which time, the Respondent must provide her a decision regarding an alternative work location within 21 days. The Commission has jurisdiction to hear and decide a dispute over the request under ch 6 of the IR Act.

14.The Director-General's decision to permit Mrs Pringle to accrue her leave entitlements at a full-time rate, for part time work, for a period of up to six months from her return to work (as contained in the decision letter) is fair and reasonable.
15.The Director-General's decision that CHQHHS coordinate and fund three psychologist sessions over a six-to-12-month period, at a date and time determined by Mrs Pringle (as contained in the decision letter) is fair and reasonable.
16.The department did not comply with the Nurses and Midwives (Queensland Health) Award - State 2015 (the Award) provisions for resolving grievances. The department's failure to adhere to the express timeframes provided for in the Award provision was not fair and reasonable.
17.Mrs Pringle's paid special leave application was not 'handled with sensitivity', as required under the Special Leave Directive. The department's failure to adhere to the express provisions of the Special Leave Directive was not fair and reasonable.
[21] Queensland Health Guideline for flexible working arrangements, cl 5(b).

Appeal details and jurisdictional objections

Mrs Pringle filed the appeal with the Industrial Registry on 27 March 2024.
At the Hearing on 8 May 2024, the Respondent raised two jurisdictional objections to the appeal:
·The decision appealed against was actually made on 9 October 2023, so any appeal is out of time.
·The Special Leave Directive does not contain any entitlement to appeal a decision made under that directive.
Those two jurisdictional objections were decided at the Hearing, when I determined:
·That the decision subject of the appeal was that contained in correspondence from Mr Walsh, Director-General, dated 19 March 2024.[22]
·To proceed to hear the matter as a fair treatment appeal, not as a directive decision appeal.
[22] As attached to the Appeal Notice filed 27 March 2024.
My reasons are as contained in the transcript of those proceedings and need not be repeated here in full.
Suffice to say that as the decision subject of this appeal was dated 19 March 2024, Mrs Pringle's appeal was filed in time (that is, within 21 days after she was given the decision).[23]
[23] 19 March 2024; Appeal Notice filed 27 March 2024, 3.
With respect to the second jurisdictional objection raised, I note that s 129 of the PS Act defines a fair treatment decision to mean "a decision a public sector employee believes is unfair and unreasonable." Section 131(d) of the Public Sector Act 2022 (Qld) (PS Act) provides an appeal may be made against a fair treatment decision.
The Directive 04/23: Appeals (the Appeals Directive) provides that:
9.       Fair treatment decision appeal
9.1     Section 131(1)(d) of the Act provides that a fair treatment decision may be appealed.
9.2     Section 129 of the Act provides for the definition of fair treatment decision.
9.3 Who may appeal a fair treatment decision under section 133 of the Act:
a.       a public sector employee aggrieved by the decision.
9.4     Further to clause 9.3 a public sector employee must first comply with their entity's procedures under the directive relating to individual employee grievances (where the individual employee grievance directive applies to the entity), unless:
a.       the fair treatment decision was made by the chief executive of that entity, or
b. where the fair treatment decision relates to a finding under section 91 of the Act that a disciplinary ground exists for the person.
9.5     Despite clause 9.4, section 562A(1)(b) of the IR Act provides that the QIRC may decide it will only hear an appeal against a fair treatment decision if the QIRC is satisfied that it would not be unreasonable to require the appellant to comply with the procedures set out in clause 9.4.
9.6     Decisions that cannot be appealed as a fair treatment decision under section 132 of the Act:
a. a decision made under chapter 3, part 8, division 5 of the Act (mental or physical incapacity)
b. a decision made under chapter 3, part 8, division 3 of the Act (disciplinary action), other than a finding under section 91 that a disciplinary ground exists for the person
c. a decision relating to the recruitment and selection of a public sector employee
d. a decision relating to a person's work performance, other than a decision about the person's work performance that is recorded in a formal way as part of a periodic performance review
e. a decision relating to the resolution of a grievance under an industrial instrument, other than a decision about the outcome of a grievance
9.7     Section 131(2) of the Act provides that a decision cannot be appealed as a fair treatment decision if the decision can be appealed under another subsection of 131(1).

The decision subject of this appeal is not one of the matters excluded from appeal, under the PS Act or Appeals Directive.
Section 133 of the PS Act sets out who may make such appeal. There is no dispute that Mrs Pringle is "a public sector employee aggrieved by the decision".[24]
[24] Public Sector Act 2022 (Qld) s 133(d).
Mrs Pringle indicated in the appeal notice that she had not used the employer's individual grievances process before lodging the appeal, as she was not required to.
With reference to the Appeals Directive, cl 9.4(a), Mrs Pringle does not have to first comply with the Department's procedures under the directive relating to individual employee grievances because the decision was made by the Director-General.
Further, the correspondence issued to Mrs Pringle dated 19 March 2024 advised that if she sought a review of the decision, she could either request that under Directive 11/20: Individual Employee Grievances (the IEG Directive) or lodge an appeal with the Queensland Industrial Relations Commission (the QIRC). Mrs Pringle has chosen the latter course.[25]
[25] I note that earlier correspondence from Mr Walsh to Mrs Pringle dated 9 October 2023 advised her that she could file a fair treatment appeal with the QIRC; See, Exhibit 5, 2.
I find that Mrs Pringle has standing to bring an appeal.
Relevant Legislation
The Special Leave provisions contained in the Special Leave Directive, which are relevant to permanent employees, include:
7.       Entitlement
7.1     An officer or an employee, as defined in this Directive:
(a) may be granted special leave either on full-pay or without pay as provided for in clause 8;
(b) must be granted special leave of absence either on full-pay or without pay as provided and where indicated in Schedule one.
7.2     Unless otherwise indicated, leave entitlements apply to part-time employees on a pro-rata basis.
7.3     Leave prescribed in this Directive may be converted to an hourly basis for the purpose of entitlement, granting and recording of leave. Leave is based on the number of hours that the employee would have worked. Schedule Three provides conversion formulas.
7.4     If an employee is rostered to work a specific number of hours on a day and the employee is absent from duty on that day, or part of it, the period of leave will be the number of hours that the employee was rostered to work on that day but did not work. This applies even though the period of leave may be different to the employee's daily hours (as defined).
7.5     Where a public holiday or substituted day under the Holidays Act 1983 occurs, during an absence on special leave without pay, officers and employees are not entitled to be paid for the public holiday.
8.       Discretionary leave
8.1     A chief executive may approve paid leave for employees for any purpose, with duration appropriate to the purpose of the leave.
(a) Leave approved under clause 8.1 must not exceed more than five (5) days per year per reason unless the chief executive considers that circumstances warrant the granting of additional paid leave. Any additional leave must be reasonable and proportionate to the circumstances.
(b) Examples of reasons could include, but are not limited to, those specified in Schedule Two.
8.2     A chief executive may approve unpaid leave for employees for any purpose and for any duration.
8.3     A chief executive may approve purchased leave, a form of unpaid leave, for any period determined by the chief executive in accordance with Queensland Government policy and/or industrial instruments.
8.4     A chief executive may approve a combination of paid and unpaid leave under this Directive.
8.5     In determining an application for leave under clause 8.1 or clause 8.2, a chief executive must consider:
(a)       the reason the leave is requested;
(b)      the duration of the requested leave;
(c) if applicable, for temporary or casual employees, the duration of the person's employment (including end date);
(d)      the impact on the employee if the requested leave is not approved.
9.       Taking leave
9.1     Other than as provided for in Schedule One, leave is always to be subject to the demands of a particular situation and is to be taken at departmental convenience.
10.     Recall from or cancellation of leave
10.1    Section 10 does not apply to leave granted in accordance with Schedule One.
10.2    A chief executive may, if departmental circumstances require it:
(a)      recall an employee from special leave; or
(b)     cancel the approval or granting of any special leave; or
(c)      defer the taking of that leave.
11.     Definitions
Unless otherwise specified the terms in this Directive have the meaning prescribed in the Public Service Act 2008.
Casual employee includes both long term casual employees and short term casual employees.
Daily hours means:
·        the number of ordinary daily working hours of an employee as specified in the relevant industrial instrument; or
·        in any other case - the number of hours specified in the relevant industrial instrument as the average number of hours per working day of an employee during a pay period or other period that is reasonable in the circumstances.
Employee means a public service officer, temporary employee (engaged under section 148(2)(a) of the Public Service Act 2008) and general employee (engaged under section 147(2)(a) of the Public Service Act 2008)
Full-pay for the purpose of this Directive (excluding sections listed below) means the employee's ordinary rate of pay and is inclusive of any fixed allowances that are part of the regular fortnightly pay, excluding shift penalties and consolidated shift allowance payments.
Immediate family includes:
·        the employee's spouse; or
·        a child, ex-nuptial child, step-child, adopted child, ex-foster child of the employee or employees' spouse; or
·        parent, grandparent, grandchild, sister or brother of the employee and of the employee's spouse (such as the employee's mother-in-law, father-in-law, grandparent-in-law, brother-in-law, sister-in-law, son-in-law, daughter-in-law).
The list of family members provided for in this definition is not exhaustive.
Agencies have the discretion to grant bereavement leave to employees on the death of family
members that are not expressly provided for in this definition. Cultural and personal reasons may be taken into consideration when an agency makes a decision.
Industrial instrument means an award, bargaining award, certified agreement, contract, Directive or determination made under section 180 of the Industrial Relations Act 2016.
Officer means an employee appointed pursuant to section 119 of the Public Service Act 2008.
SCHEDULE ONE - NON-DISCRETIONARY SPECIAL LEAVE
…
6.       Bereavement Leave
Category
(a)An employee is entitled to bereavement leave on full pay on the death of a member of the employee's immediate family or household or if the employee, or the employee's spouse is pregnant and the pregnancy ends other than by the birth of a living child. The leave is to be granted for a death occurring either within Australia or overseas.
Entitlement
(a)In relation to each deceased person - two (2) days bereavement leave on full pay.
Conditions of Approval
Applies to employees (including casual employees)
The employee is to furnish evidence of the death or funeral arrangements that are satisfactory to the chief executive.
…
7.       Compassionate Leave
Category
(a) An employee (other than a casual employee) is entitled compassionate leave on full pay on each occasion when a member of the employee's immediate family or household:
(i) contracts or develops a personal illness that poses a serious threat to the person's life; or
(ii) sustains a personal injury that poses a serious threat to the person's life.
Entitlement
(a)Two (2) days per occasion.
Conditions of Approval
Applies to employees.
The employee must give the employer sufficient evidence to satisfy a reasonable person that the employee was taking compassionate leave because a member of the employee's family or household's life was threatened by personal illness or personal injury.
…
SCHEDULE TWO - DISCRETIONARY SPECIAL LEAVE
…
Entitlement
Up to five (5) days paid leave per year per reason or such additional leave determined to be appropriate by the chief executive may be granted in accordance with clause 8.1(a).
Category
1.       Emergency or Compassionate Grounds
An officer may be granted leave that is reasonably required either for an emergency situation or on compassionate grounds which fall outside the scope of "Compassionate Leave", as defined in clause 7 of Schedule One.
…
11.     Other Exceptional Circumstances
This leave type may be used for many and varied circumstances and should be granted to assist employees particularly on compassionate grounds. Applications of this nature must be handled confidentially and with sensitivity. Such circumstances may include but are not limited to the following examples:
(a) an employee who is dealing with matters arising from or as a result of family or domestic violence;
(b) an employee who is undergoing an intensive course of medical treatment from specialist practitioners;
(c) an employee who is dealing with the terminal illness of a partner, child or other close family member (recognising kinship for Aboriginal and Torres Strait Islander peoples);
(d) an employee who is mourning the death of a partner, child or other close family member;
(e)an employee whose home and property has been destroyed by a natural disaster such as a flood or cyclone;
(f)      an employee who is a victim of a violent crime.
The above are examples only. There are many other possible scenarios where it would be appropriate to approve "special leave for other exceptional circumstances".
It is not mandatory for the employee to have exhausted other forms of paid leave prior to accessing "special leave for other exceptional circumstances".
In cases of family or domestic violence, leave should be granted to provide the employee with time off to:
- seek safe housing
- attend medical/counselling appointments
- attend court hearings
- access legal advice
- organise alternate care or education arrangements for their children
- rebuild support networks with children, family and others
Appellant's submissions
Mrs Pringle argued that the Respondent's decision was not fair and reasonable because of the following reasons.
(a)The Department took an inordinate length of time to grant her paid special leave - or respond to her request at all
Mrs Pringle's six-year-old daughter, Ruby, "was diagnosed with the deadliest form of childhood cancer, DIPG"[26] in September 2022. She died within 5 months (on 1 March 2023).
[26] T 1-3, line 26.
While Mrs Pringle requested 'Paid Special Leave due to exceptional circumstances' on 5 October 2022,[27] it was not until 9 January 2023 (more than 3 months later) that the employer responded.[28]
[27] Exhibit 3.
[28] Appellant's submission filed 5 June 2024.
Mrs Pringle explained:
Throughout this prolonged period of non-communication regarding my leave, my family shouldered a profound burden. My husband found himself compelled to undertake dual employment to sustain us financially, resulting in the forfeiture of irreplaceable moments with our terminally ill child, Ruby, who was undergoing daily palliative radiation treatment for her brain tumour and grappling with the loss of bodily functions…Due to my husband's professional obligations, I undertook the primary caregiver role for Ruby while simultaneously fulfilling the duties of a mother to both Ruby and our 3 year-old. I attended all daily medical and therapy appointments unaccompanied by my husband, leaving Ruby bereft of her father's support during these pivotal moments. I bore sole responsibility for tending to Ruby's deteriorating condition around the clock, as we were unable to secure any assistance or support from QCH palliative care…Throughout this distressing period, I found myself entrenched in protracted communication endeavours with QCH HR and QNMU, in a desperate endeavour to elicit any form of response from my employer.[29]
[29] Appellant's submission filed 5 June 2024.
In correspondence dated 9 September 2023, Mrs Pringle wrote to Queensland Children's Hospital management regarding her "Formal Request for Resolution of Special Leave Application and Back Payment of Wages". Mrs Pringle stated:
Regrettably, despite the clarity of the policy and the ample evidence provided, all levels of management within Queensland Children's Hospital (QCH) have failed to confirm or approve my entitlement to this leave up to the present date, September 9, 2023. Instead of handling my application with sensitivity and compassion mandated by policy, I was met with hostility, ignorance, and a lack of understanding. Consequently, I was compelled to use my recreation leave, endure periods of leave without pay, and receive ill-advised suggestions to tap into my superannuation funds. This occurred despite the undeniable severity of my daughter's diagnosis, which aligns with the criteria for Special Paid Discretionary Leave under the PSC (IR) Directive 5/17 - Special Leave (Schedule Two, 11c), as stipulated in the HR Policy C7 (QH-POL-231). Furthermore, it was widely acknowledged that my daughter was a patient at QCH, the very institution that employed me and where all relevant managerial authorities were based.
…
Up until September 8, 2023, my Special Leave Request was blatantly disregarded …[30]
[30] Exhibit 4.
In an email dated 5 September 2023, Mrs Pringle wrote to the Respondent stating:[31]
I had to use my Recreation Leave due to the above process not being resolved in a timely manner. The Special Leave Directive states that Leave entitlements do not have to be exhausted prior to Special Leave being approved. I request that my Recreational Leave is reinstated. QCH HR and the QNMU were consulted during this process & I made it very clear that I did not wish to use my recreational leave. However, as this process was not resolved I had no choice but to use my Recreational Leave as I was placed in the position of needing to access this leave to pay for medication which cost $20,000 for 3 months' supply to prolong my daughter's life.[32]
(b) The Department did not comply with the Award provisions for resolving grievances
[31] Exhibit 3, email dated 5 September 2023.
[32] Ibid.
Mrs Pringle stated that the Respondent did not comply with s 7.2 'Employee Grievance Procedure - Other than Award Matters' of the Nurses and Midwives (Queensland Health) Award - State 2015, particularly sub-section (f) which provides for "precise timelines mandating employer responsiveness to an employee."[33]
[33] Appellant's submission filed 5 June 2024.
Mrs Pringle stated "… the process detailing in section 7.2 were not followed or applied, despite the clear guidelines provided for the … prevention and settlement of disputes … I regret to say that none of these processes were adhered to in resolving my issue. Instead, there was a pattern of avoidance, prolonged timeframes, minimal to no communication, and lack of satisfactory explanations provided … and a severe lack of compassion cumulative in denial for my application."[34]
[34] T 1-5, lines 28-38.
(c) The Department did not treat her with compassion
Mrs Pringle stated that she was not treated with compassion and support by her employer. Mrs Pringle said "Throughout this process, there has been systemic failures to treat me as a human being and a grieving mother … and as an employee with compassion and empathy. I have been treated with contempt, a lack of understanding and hostility."[35]
[35] T 1-7, lines 1 – 4.
In an email dated 19 September 2023, Mrs Pringle provides her account of the meeting held with Mr Frank Tracey and Ms Naomi Hebson the previous day, including that:
Ms Hebson explicitly stated that the hospital had shown "the most compassion they had ever shown" by granting me 8 weeks leave. She attempted to shift blame onto me, asserting that I had not specified an end date for my special leave request. I countered by explaining that I was unaware of the date when my child would pass away so was unable to supply a date. The tone, manner, and attitude displayed during this exchange were deeply distressing.
Mr Tracey eventually intervened to halt Ms Hebson's comments after I asked if they believed that 8 weeks of leave was the maximum compassion and sensitivity they could offer to a person who had experienced the tragic passing of their child. This comment seems unfathomable in light of my circumstances and the directive explicitly stating that no specific time period for leave can be granted. I referenced this directive and confirmed that Mr Tracey had neither approved nor signed off on the leave being discussed, and it was not for a duration of 8 weeks. The leave I was granted was approved while Mr Tracey was on leave, and his counterpart, who was exceptionally kind and compassionate, signed off on my special leave request within 24 hours of my contacting her.[36]
[36] Exhibit 3, email dated 19 September 2023.
Mrs Pringle explained that:
Notably, the institution responsible for managing and attending to Ruby's needs also held obligations towards me as an employee navigating profound personal challenges. Despite our urgent requirement for home-based palliative care supports, the hospitals deficiency in providing adequate assistance resulted in further financial and emotional burdens…Distressed, I sought aid from my employer, initially encountering disregard, followed by protracted delays, which further exacerbated our burdens. Individuals holding pivotal positions within Queensland's quaternary paediatric hospital, such as the CE and the Director of People and Governance, reasonably bear the responsibility of understanding the complex needs of families confronting the terminal illness of a child and the associated expenses. Sadly, this responsibility was not exercised when considering my situation. Highlighting the comments made on September 18, 2023, by the Director of People and Governance that "granting me eight weeks leave is the most compassion they have ever shown" further demonstrates the severe lack of understanding and compassion …[37]
[37] Appellant's submission filed 5 June 2024.
Mrs Pringle further submitted that:
… it is crucial to clarify that the poor treatment experienced did not solely pertain to Mr Walsh, as suggested in the respondent's written submission. Rather, it was primarily attributed to the Chief Executive (CE) of QCH, QCH Human Resources, and QCH Executive Director of People and Governance. Despite the attempt to shift focus on Mr Walsh, it is imperative to emphasize that changing the decision maker does not absolve the prior individuals of their lack of compassion, limited understanding of the needs of an employee who has a dying child, and at times, outright hostility and contempt. The respondent's emphasis on Mr Walsh's offer of accrued leave and psychological sessions fails to address the broader issue of accountability for the mistreatment outlined. The attempt to portray Mr Walsh as the sole decision maker serves as a distraction from address the systemic issues highlighted …[38]
[38] Appellant's submission filed 5 June 2024.
(d) She could not return to the QCH work location
At the Hearing, Mrs Pringle said that she did not want to return to the QCH work location because it would be too distressing.
Instead, Mrs Pringle proffered that her substantive position could be performed at the Oral Health Centre, Herston (though acknowledged that was only two days per week). Mrs Pringle explained that "The Queensland Government pays for us to go there to teach the uni students. So in the letter from the D-G, that's what he was talking about, that my substantive role could be changed to Herston. However, when I spoke to my director at the time to come back to work, they stated that I wasn't fulfilling my contractual obligations because our main point of work is at QCH, and we're only at … the Oral Health Centre, at Herston, two days a week. So I would have to work that out with work as well."[39]
[39] T 1-21, lines 42 – 476; T 1-22, lines 1 – 2.

Mrs Pringle submitted that:
… while Mr Walsh's offer to accrue leave at a full time rate for a period of six months was considered but is felt to be unfeasible at this time as the main location of my permanent employment is QCH. This location represents the sight of deeply traumatic events including the decision to take my daughter off life support …[40]
[40] Appellant's submission filed 5 June 2024.
At the Hearing, I asked Mrs Pringle whether there were any other work location possibilities within MNHHS that she may be aware of. Mrs Pringle said: "They've got other sites around Northside of Brisbane … there's one at North Lakes and Caboolture … So I am a dental assistant, but I've got my radiography as well … And I'm a nurse."[41]
[41] T 1-23, lines 22-40.
(e) The counselling and psychological support offered were too little, too late
Mrs Pringle submitted that:
… I acknowledged that the employee assistance program has been offered to me. However, upon my contacting them, they made it clear counselling for grieving the loss of a child was outside the scope of their capabilities. Subsequently, their suggestion was to seek private support principally through general practice referral. Upon hearing this, Mr Walsh offered three psychologist sessions funded by Queensland Health. Three free psychology appointments are not an adequate amount of support for the trauma experienced daily from losing my child…While the offers from Mr Walsh are appreciated, this does not excuse the actions taken by QCH's CE, HR, and Executive Director of People and Governance. These offers also came too late, nearly a year after my daughter had passed and a year and a half after my initial application for paid special leave; and at my ongoing questioning on the matter.[42]
(f)Her particular circumstances warranted further paid special leave, but that was not provided
[42] Appellant's submission filed 5 June 2024.
The Special Leave Directive provides that the terminal illness of a child and mourning the death of a child are exceptional circumstances where special leave should be granted. Mrs Pringle submitted that her daughter's diagnosis warranted granting special leave for the period 5 October 2022 to 1 September 2023 (47.3 weeks).
Mrs Pringle rejected the Respondent's position that it was "appropriate and proportionate" to her circumstances to grant eight weeks of special leave (paid and unpaid). Mrs Pringle said:
It is near implausible to determine how many weeks of leave an employee is entitled to for terminal diagnosis and death of their child. However, conclusions regarding appropriate time of leave can be inferred from the government's paid pre-natal and maternity leave. This entitlement recognises the importance and exclusivity of parental care required during the newborn period but also balances against the need to remain employed in the future. Hence in drawing a comparison to my circumstances during the period caring for a terminally ill child with high demands which can only be met by a parent. During our meeting on February 27, 2024, Mr Walsh inferred that it is impossible for him or anyone else to determine an appropriate amount of leave for the loss of a child. However, if Mr Walsh or the CE had tried to understand the extreme limitation of parents with a palliative care child and a clearer understanding of the needs of such child during this process then they themselves would have realised one or both parents are required 24/7 for the period of the child's remaining life.
…
… as stipulated in Directive 05/17, I reiterate that the requested paid special leave period encompassed the exigent circumstances surrounding my daughter's terminal diagnosis and the subsequent mourning period following her passing, consistent with the provisions outlined in Directive 05/17. This timeframe notably aligned with my contractual obligations during my secondment to QCH. My tenure as an exemplary employee of Queensland Health since June 25, 2012, underscores my dedication to the organisation. Notably, the aggregate duration of 40 weeks for requested special leave, in conjunction with the purported allocation of 8 weeks, corresponds proportionally to 4 weeks per annum of my tenure with Queensland Health.[43]
[43] Ibid.
Mrs Pringle submitted that "The efficacy of Directive 05/17 comes into question if it fails to address situations as severe as the terminal illness and death of a child. Clause 8 of Directive 05/17 explicitly states that over five days of special leave can be granted if the circumstances warrant it, as exemplified, but not limited to, those described in Schedule Two, 11, Exceptional Circumstances, which my circumstances explicitly align with … The directive unambiguously addresses these exceptional circumstances. According to the Special Leave Directive, the period of special leave able to be granted is undefined.[44]
(g)The additional amounts claimed were incurred due to the Department's administrative inadequacies, in that her application for paid special leave was not promptly considered and authorised
[44] Ibid.
Essentially Mrs Pringle contends that the reimbursement of wages to her for the period claimed will result in debts and costs because her income would be higher than that previously reported during the lengthy period of leave without pay.
Respondent's submissions
The Respondent submitted that its decision was fair and reasonable because:
(a)Mrs Pringle's particular circumstances were considered, in deciding her application for special leave
At the Hearing, the Respondent noted that "The prescribed amount of leave there is five days, and the leave directive states that an amount of five days per event per year won't be exceeded unless the chief executive exercises their discretion, as the chief executive did here. If Ms Pringle was to receive the full benefit of the prescribed dates under the special leave directive, she would get somewhere between 10 and 14 days."[45]
[45] T 1-28, lines 41 – 46.
Notwithstanding that, the Department afforded Mrs Pringle "as period of eight weeks and five days, which the respondent says was reasonable in the circumstances, which was then followed by a period of six months of approved leave without pay. And the respondent acknowledges Ms Pringle has some exhaustible leave as well."[46]
[46] T 1-29, lines 8 – 11.
The Respondent submitted that the amount of paid special leave provided to Mrs Pringle was "reasonable and proportionate to the circumstances", as she was granted:
… considerably longer period of paid discretionary special leave than the prescriptive standard 5 days per reason set out in the Special Leave Directive. The Appellant was granted a total of 8 weeks of discretionary paid special leave between 9 January 2023 and 6 March 2023 and a further three days of compassionate leave (28 - 29 December 2023 and 7 March 2023) and three days of bereavement leave (8 March 2023 - 11 March 2023);
… the granting of 8 week of discretionary paid special leave was appropriate and proportionate to the Appellant's circumstances, and as stated well above the standard period granted per year of paid special leave.[47]
[47] Respondent's Amended Written Submissions filed 12 June 2024, [10].
The Respondent further detailed the amount of leave provided to Mrs Pringle, as follows:
Between the period of 9 January 2023 and 6 March 2023, the Appellant was granted a total of 8 weeks of paid special discretionary leave following her daughter's diagnosis of terminal brain cancer. After the Appellant informed the Respondent of her daughter's passing on or about 1 March 2023, the Respondent approved a further 4 days of compassionate and bereavement leave (to be taken at the expiry of the approved paid special leave). The Appellant was otherwise offered to access her leave entitlements or was approved to access unpaid special leave for the period of 6 March 2023 to 1 September 2023.
The Appellant's leave balances as at 6 March 2023 were:
(1)Recreational leave: 75.11 hours;
(2)Sick leave: 45.10 hours;
(3)Long service leave: 266.99 hours.
Between 12 March 2023 and 3 September 2023, the Appellant accessed unpaid special leave.[48]
[48] Exhibit 8, [6]-[8].
The Respondent stated that the Leave Takings Report showed Mrs Pringle was granted eight weeks and five days paid leave between 9 January 2023 and 11 March 2023, in combination of "periods of 'Special Discretionary Full Pay Leave', 'Compassionate Leave' and 'Bereavement Leave' between 9 January 2023 and 11 March 2023 …"[49]
[49] Respondent's Amended Written Submissions filed 12 June 2024, [10].
In the 9 October 2023 correspondence,[50] Mr Walsh explained "… I have a responsibility to balance the needs of our patients, Queensland Health employees and the community we serve. Queensland Health employs over 100,000 people who all need to be treated fairly and equally."
[50] Exhibit 5.
The Respondent asserted that "Mr Walsh's decision not to approve the requested additional 40 weeks paid special leave between 5 October 2022 to 1 September 2023 (bringing the total paid special leave to 47.3 weeks) was fair and reasonable balancing those competing priorities."[51]
(b)The Department could not reimburse Mrs Pringle for other personal expenses and allowances for a period where she was not working, in addition to other potential penalties / debts she considers she may be liable for
[51] Respondent's Amended Written Submissions filed 12 June 2024, [10].
In an email dated 19 September 2023, Mr Tracey summarised Mrs Pringle's request the previous day as follows:
As I understand it, you are also seeking financial reimbursement for impacts, including but not limited to, superannuation, reimbursement of leave taken and FBT recompense. I note that during this period you were afforded 8 weeks of special leave, I will check if this has been included in your calculations.[52]
[52] Exhibit 3.
"Mr Walsh considered that the amounts claimed could not be reconciled against any particular entitlement and that therefore there was not lawful basis upon which the Respondent can pay these amounts."[53]
(c) Special arrangements for leave accrual and psychologist support were also offered
[53] Respondent's Amended Written Submissions filed 12 June 2024, [10].
In addition to the Special Leave provided, Mrs Pringle was also offered:[54]
·The accrual of her leave entitlements at a full time rate for part time work for a period up to six months from her return to work after maternity leave; and
·Three psychologist sessions to be funded by Queensland Health.
[54] Ibid.
(d) Mrs Pringle was treated with compassion
The Respondent submitted that "it has been compassionate and supportive towards the Appellant and on each occasion when a relevant delegate corresponded with the Appellant (or during a meeting with her) she was advised of the delegate's sincere condolences for the tragic loss of her daughter, and it was acknowledged that it was an extremely challenging time for her. She was otherwise offered to engage with the Employee Assistance Program on each occasion."[55]
(e)The Department complied with the relevant provisions in addressing Mrs Pringle's application
[55] Ibid.
The Respondent submitted that Mrs Pringle "did not identify she was making a grievance in accordance with clause 7.2 of the Award and rather identified she was seeking a reconsideration of her application for special leave."
Further, Mr Walsh's correspondence to Mrs Pringle dated 9 October 2023 and 19 March 2024 advised her that she may request a review of his decision by submitting a written grievance to the Public Sector Commission (PSC), though she chose not to do this.[56]
[56] Ibid.
(f) Any delay in approving Special Leave is not relevant to this appeal
The Respondent submitted that "any regrettable delay in initially escalating and approving the Appellant's first request for special leave, requested on 5 October 2022 is not relevant to the ultimate question on appeal …"[57]
[57] Ibid.
Mrs Pringle made a request for special leave on 20 December 2022 (following her initial request on 5 October 2022), that was approved by Mr Tracey on 10 January 2023 and verbally communicated to her. That was for the period 9 January to 12 February 2023 (5 weeks).
On 10 March 2023, Ms Joldic approved a further period of paid discretionary special leave from 13 February to 6 March 2023. Ms Joldic called Mrs Pringle to advise her of that decision on or about 10 March 2023. The letter prepared advising Mrs Pringle of this was not given to her, "due to an inadvertent administrative oversight."[58]
[58] Respondent's Amended Written Submissions filed 12 June 2024, [10].
The decision letter
The decision letter [59] set out the following matters:
[59] Correspondence from Mr Michael Walsh, Director-General, Queensland Health to Mrs Pringle dated 19 March 2024.
(a)Mr Walsh does not approve payment of the additional paid discretionary leave sought by Mrs Pringle.[60]
[60] Mr Michael Walsh met with Mrs Pringle on 27 February 2024 to discuss his decision “to not approve additional paid special discretionary leave in accordance with Directive 05/17 Special Leave (the Directive).”
(b)Mrs Pringle does not want to return to work at the QCH location as she "would find it too confronting", however Mr Walsh determined that is a matter to be discussed between Mrs Pringle and her COHS line manager closer to her return to work date.
(c)Mrs Pringle confirmed she will return to work initially on a part time arrangement for three days per week. Despite her intended part time work, the Respondent permitted her to accrue annual, sick and long service leave entitlements as though she was working on a 'full time basis', for a period of up to six months.
(d)Mr Walsh rejected Mrs Pringle's "request for further special leave and financial compensation for the period 5 October 2022 to 1 September 2023" - a period of "a further 40 weeks". That is because:
·        Mrs Pringle was already "paid special leave during the period 9 January to 3 March 2023 and were then approved to access unpaid special leave for the period 6 March 2023 to 1 September 2023 in recognition of your particular circumstances."
·        Special Leave (paid or unpaid) may only be approved where it is reasonable and proportionate to the relevant circumstances.
·        Mr Walsh had already approved special leave "proportionate to your circumstances and you can access other accrued leave entitlements."
(e)Mr Walsh rejected Mrs Pringle's request to have personal expenses paid for the period she was not working because those amounts "cannot be reconciled against any particular entitlement, there is not basis upon which Queensland Health or CHQHHS can pay these amounts".[61]
(f)Mr Walsh declined Mrs Pringle's request for another meeting about his decision.
(g)Mr Walsh explained Mrs Pringle's entitlements to review or appeal his decision.
(h)Mr Walsh advised Mrs Pringle that the Employee Assistance Program (EAP) was available.
(i)Mr Walsh also offered Mrs Pringle "more specialised psychological support". That is, three psychologist sessions to be paid for by CHQHHS.
[61] Correspondence from Mr Michael Walsh, Director-General, Queensland Health to Mrs Pringle dated 19 March 2024.
Earlier correspondence
Further, earlier correspondence from Mr Walsh to Mrs Pringle dated 9 October 2023 stated:
… I have decided to not approve your request for paid special discretionary leave nor your request for further financial compensation associated with loss of wages.
My decision not to support the back payment of the special discretionary leave and further financial compensation, does not mean that I have not determined that your circumstances were not extenuating, nor does it mean that the situation only warranted the amount of special leave approved by Mr Tracey, and Ms Jasmina Joldic, as Acting Chief Executive Children's Health Queensland Hospital and Health Service (HHS).
As the Director-General, I have a responsibility to balance the needs of our patients, Queensland Health Employees, and the community we serve. Queensland Health employs over 100,000 people who all need to be treated fairly and equally.
While I support the previously approved paid discretionary special leave given to you in early 2023, and I sincerely sympathise with the gravity of the loss of your daughter, it would be inappropriate for me to utilise my delegations under the Directive to the full extent of your request. There is a need to balance the consideration of all requests under the Directive that all Queensland Health employees are entitled to request.[62]
[62] Exhibit 5, 1.
Consideration
I will now consider whether (or not) the Respondent's decision was fair and reasonable.
My decision turns on the material facts of this case, as applied to the provisions of the Special Leave Directive, the IR Act and industrial instruments.
Special Leave Directive provisions
The Special Leave Directive,[63] 'Schedule One - Non-Discretionary Special Leave', provides an employee has an entitlement to:
·Two days of Bereavement Leave on full pay on the death of a member of the immediate family; and
·Two days of Compassionate Leave on full pay when a member of the immediate family develops an illness posing a serious threat to their life.
[63] And the Industrial Relations Act 2016 (Qld) s 47.
In addition, cl 7.1(a) of the Special Leave Directive provides that an employee may be granted special leave (either paid, unpaid or a combination of both) as provided for under cl 8 Discretionary Leave. Clause 8.1 states that (my emphasis):
A chief executive may approve paid leave for employees for any purpose, with duration appropriate to the purpose of the leave.
(a)      Leave approved under clause 8.1 must not exceed more than five (5) days per year per reason unless the chief executive considers that circumstances warrant the granting of additional paid leave. Any additional leave must be reasonable and proportionate to the circumstances.
(b)      Examples of reasons could include, but are not limited to, those specified in Schedule Two.
Clause 8.5 states that:
In determining an application for leave under clause 8.1 or clause 8.2, a chief executive must consider:
(a)     the reason the leave is requested;
(b)    the duration of the requested leave;
(c)     if applicable, for temporary or casual employees, the duration of the person's employment (including end date);
(d)    the impact on the employee if the requested leave if not approved.
In 'Schedule Two - Discretionary Special Leave', under the heading 'Entitlement', it provides that "Up to five (5) days paid leave per year per reason or such additional leave determined to be appropriate by the chief executive may be granted in accordance with clause 8.1(a). Under the heading 'Category', several examples of reasons for such leave are listed. Relevantly, that includes (my emphasis):
11.     Other Exceptional Circumstances
This leave type may be used for many and varied circumstances and should be granted to assist employees particularly on compassionate grounds. Applications of this nature must be handled confidentially and with sensitivity. Such circumstances may include but are not limited to the following examples:
…
(c)      an employee who is dealing with the terminal illness of a … child …;
(d)      an employee who is mourning the death of a … child …;
…
The above are examples only. There are many other possible scenarios where it would be appropriate to approve "special leave for other exceptional circumstances".
It is not mandatory for the employee to have exhausted other forms of paid leave prior to accessing "special leave for other exceptional circumstances.
The key elements of the above provisions are that:
·the chief executive may approve paid special leave, but does not have to do so;
·the duration of paid special leave approved is to be "appropriate to the purpose of the leave";
·up to five days per year per reason is the base, as stated - though more than that can be granted, if the circumstances warrant it;
·any additional leave granted "must be reasonable and proportionate to the circumstances";
·reference Schedule Two for examples of scenarios where a chief executive may approve such paid leave;
·Schedule Two specifically includes 'Other Exceptional Circumstances', such as where an employee is "dealing with the terminal illness of a child" and "mourning the death of a child";
·applications made under 'Other Exceptional Circumstances' (my emphasis) "must be handled confidentially and with sensitivity";
·"It is not mandatory for the employee to have exhausted other forms of paid leave prior to accessing "special leave for other exceptional circumstances";
·the chief executive must consider applications for paid special leave on the basis of a particular decision criteria.
Did the Director-General consider Mrs Pringle's application for additional paid special leave, using the entirety of the mandatory decision criteria contained in the Directive?

I have carefully reviewed the decision letter dated 19 March 2024 for evidence that the chief executive considered the entirety of the mandatory criteria set out in the Directive when making his decision.
That is, in deciding whether or not to approve paid special leave, that the chief executive must consider:
(a)the reason the leave is requested;
(b)the duration of the requested leave;
(c)if applicable, for temporary or casual employees, the duration of the person's employment (including end date);
(d)the impact on the employee, if the requested leave if not approved;
(e)whether or what additional leave is reasonable and proportionate to the circumstances.
I see that the decision letter did include reference to the reason for, and the duration of, the paid special leave requested.[64]
[64] That is, decision criteria a. and b.
The question of 'whether or what additional leave is reasonable and proportionate to the circumstances' was referred to in the decision letter. In my view though, insufficient reasons were given by the decision maker as to the basis upon why he considered that the period of paid special leave already granted to Mrs Pringle was "reasonable and proportionate to the circumstances". Instead, the decision maker simply stated that "… I have already approved special leave proportionate to your circumstances and you can access other accrued leave entitlements."
I have also reviewed Mr Walsh's earlier correspondence dated 9 October 2023 for any further reasoning as to why he determined that the amount of paid special leave already provided was "reasonable and proportionate to the circumstances". In that earlier correspondence, Mr Walsh stated that his decision (my emphasis):
As the Director-General, I have a responsibility to balance the needs of our patients, Queensland Health employees, and the community we serve. Queensland Health employs over 100,000 people who all need to be treated fairly and equally.
…
… There is a need to balance the consideration of all requests under the Directive that all Queensland Health employees are entitled to request.[65]
[65] Exhibit 5.
I discern from that correspondence that Mr Walsh considered the amount of paid special leave already provided to Mrs Pringle was "reasonable and proportionate to the circumstances" because he has the "responsibility to balance the needs of our patients, Queensland Health employees, and the community we serve", and that "Queensland Health employs over 100,000 people who all need to be treated fairly and equally" in the consideration of requests made under the Directive.
With respect to the first of those provided reasons, it is not apparent why reference is made to balancing the needs of employees with patients and the community. The Directive applies only to employees. A funding or resourcing imperative may have been alluded to here, though that is not explicitly stated as such.
With respect to the second reason, clearly the Directive applies to all departmental employees who need to be treated "fairly". That includes Mrs Pringle - and the fair treatment of her request must include careful adherence to all the provisions and protections of the Directive and industrial instruments, such as: the assessment of such applications using the entirety of the mandatory decision criteria; timeliness; dealing sensitively with employees; etcetera. While the decision maker represented the need to treat all employees "fairly" as a reason to refuse Mrs Pringle's request, I would observe that "fairness" encompasses all the above elements of how such applications are assessed.
In refusing Mrs Pringle's request, Mr Walsh also reasoned that departmental employees all need to be treated "equally". Certainly, that is the case in terms of an ability to make an application and have it assessed according to the same mandatory decision criteria. However, I note that the allocation of paid special leave is not "equal", nor is it intended to be. All departmental employees do not have the same need. I would imagine that the majority of employees and their families generally experience good health, and for the most part are able to go about their daily lives free of dire domestic exigencies, so have no need to call upon their employer for the additional supports contained in the Special Leave Directive. If there was ever an intention that paid special leave was to be somehow "equally" distributed amongst departmental employees, it would have been provided as an additional individual entitlement to be accrued from year to year. Clearly, that is not the case. Special Leave is instead something separate to an individual's leave accruals, for allocation according to circumstances of particular need.
Further on the requirement for the decision maker to assess applications for paid special leave that is "reasonable and proportionate to the circumstances", I observe Mr Walsh stated in the earlier correspondence that his decision (my emphasis):
… to not support the back payment of paid special discretionary leave and further financial compensation, does not mean that I have not determined that your circumstances were not extenuating, nor does it mean that the situation only warranted the amount of special leave approved by Mr Tracey, and Ms Jasmina Joldic, as Acting Chief Executive Children's Health Queensland Hospital and Health Services (HHS).
That statement is rather puzzling. In other words then, Mr Walsh's decision to refuse further paid special leave does not mean that the situation only warranted the amount of special leave already approved. It follows then that Mr Walsh has accepted that Mrs Pringle's circumstances warranted more. Despite that qualification, Mr Walsh did not approve any further paid special leave - nor did he provide adequate reasons for the refusal, for the reasons I have explained above.
It also appears to me that the decision maker did not specifically consider the impact on Mrs Pringle if the leave is not granted, as required under the Directive. While the approval of the additional paid special leave sought by Mrs Pringle is 'discretionary' (as emphasised several times in that correspondence), the decision criteria to be used by the chief executive in arriving at their decision is not. The basis for the chief executive's decision appears to have been limited to whether the granting of additional paid special leave was "reasonable and proportionate" to Mrs Pringle's particular circumstances.
Out of an abundance of fairness to the Respondent, I have also carefully reviewed the earlier correspondence dated 9 October 2023. However, there is no indication there either that the impact on Mrs Pringle of refusing additional paid special leave was considered there either.
I find that the entirety of the mandatory decision criteria was not considered by the chief executive, in arriving at the decision. That omission is more than mere blemish. On that basis, I find the decision to be unfair and unreasonable.
What impact did the decision to refuse further paid special leave have on Mrs Pringle?
Mrs Pringle's six-year-old daughter was diagnosed with cancer in September 2022 and died within five months - on 1 March 2023.
She requested 'Paid Special Leave due to exceptional circumstances' on 5 October 2022,[66] but it was not until 9 January 2023 (more than 3 months later) that the employer responded.[67]
[66] Exhibit 3.
[67] Appellant's submission filed 5 June 2024.
Mrs Pringle explained the impact of the Director-General's decision to refuse her additional paid special leave, as follows:
Throughout this prolonged period of non-communication regarding my leave, my family shouldered a profound burden. My husband found himself compelled to undertake dual employment to sustain us financially, resulting in the forfeiture of irreplaceable moments with our terminally ill child, Ruby, who was undergoing daily palliative radiation treatment for her brain tumour and grappling with the loss of bodily functions … Due to my husband's professional obligations, I undertook the primary caregiver role for Ruby while simultaneously fulfilling the duties of a mother to both Ruby and our 3 year-old. I attended all daily medical and therapy appointments unaccompanied by my husband, leaving Ruby bereft of her father's support during these pivotal moments. I bore sole responsibility for tending to Ruby's deteriorating condition around the clock, as we were unable to secure any assistance or support from QCH palliative care … Throughout this distressing period, I found myself entrenched in protracted communication endeavours with QCH HR and QNMU, in a desperate endeavour to elicit any form of response from my employer.[68]
[68] Ibid.
Mrs Pringle's application for paid special leave was callously ignored by her employer for many months. During that time, Mrs Pringle faced the unimaginable grief of caring for her terminally ill child and a toddler at home, while her husband was forced to work two jobs to support the family. The emotional challenge the family faced was enormous, but it did not end there. It was also a time of dire financial straits because Mrs Pringle, as the primary income earner, was unable to work and her application for paid special leave was in limbo. The family desperately needed money to both sustain themselves and their children - and "to pay for medication which cost $20,000 for 3 months' supply to prolong my daughter's life."[69] Ultimately, Mrs Pringle submitted that her daughter's condition had "very limited treatment options" and the family was "faced with self-funding of over $40,000 of medication, as she was not eligible for medication through the hospital."[70]
[69] Exhibit 3, email dated 5 September 2023.
[70] T 1-3, lines 34-36.
It is abundantly clear that the financial and emotional challenges faced by Mrs Pringle were enormous.

[100]So too was the impact of the decision to refuse Mrs Pringle's application for further paid special leave.
[101]In correspondence dated 9 September 2023, Mrs Pringle clearly set out the impact of the employer's refusal to provide further paid special leave to her, under the headings 'Financial Distress' and 'Mental Anguish'. I note that correspondence was sent to the employer well ahead of her meeting on 27 February 2024 with the Director-General and Chief Executive - which was also clearly before the 19 March 2024 decision that is subject of this appeal.
[102]If the Director General had properly considered the entirety of the mandatory decision criteria, this factor ought to have weighed heavily in favour of approving additional paid special leave to Mrs Pringle.
What was the minimum 'entitlement' that Mrs Pringle had to paid compassionate leave and paid bereavement leave, under the Directive? What did she receive? What amount of paid special leave was actually provided to Mrs Pringle?
[103]It is useful to set out here the minimum entitlements that Mrs Pringle had, to then establish what was the additional paid leave considerations that she sought from her employer.
[104]The amount of paid special leave actually received by Mrs Pringle was in dispute between the parties.
[105]The fact that Mrs Pringle's application for paid special leave was not dealt with for many months necessitated adjustments to be made, that added to the muddle that characterised the employer's response to her circumstances.
[106]Mrs Pringle submitted that she received five weeks and one day of paid special leave, in total -[71] Not eight weeks,[72] as the Respondent had stated.
[71] T 1-3, line 47; T 1-4, line 1; Exhibit 3, email dated 9 March 2023.
[72] T 1-3, line 45.
[107]At the Hearing, Mrs Pringle disputed Mr Walsh's statement that she had already received the amount of eight weeks paid special leave, instead stating that she received five weeks paid special leave, as follows:
·9 January 2023 to 22 January 2023 (64 hours);
·23 January 2023 to 5 February 2023 (64 hours);
·6 February 2023 to 12 February 2023 (32 hours); and
·6 March 2023 (8 hours).

[108]Mrs Pringle also received 8 hours compassionate leave for 7 March 2023 and 16 hours bereavement leave for 8 March to 11 March 2023.[73]
[73] Exhibit 3, email dated 22March 2023.
[109]At the Hearing, Mrs Pringle submitted her payslips to evidence paid and unpaid leave accessed in the relevant period. She provided a table summary (Exhibit 6).
[110]The Respondent provided a 'Leave Takings Report' (Exhibit 9) to show the amount and type of leave accessed by Mrs Pringle.
[111]With respect to those two exhibits, I have discerned Mrs Pringle's leave in the relevant period to be as follows:

Date

Leave Type

Hours

19/9/22

Carer's Leave (Paid)

2.45 hrs

Carer's Leave (Unpaid)

5.55 hrs

22/9/22

Sick Leave (Paid)

0.92 hrs

Sick Leave (Unpaid)

7.08 hrs

23/9/22 - 26/12/22

Rec Leave (at Half Pay)

416 hrs

28/12/22 - 29/12/22

Compassionate Leave (Paid)

16 hrs

9/1/23 - 6/3/23

Special Leave (Paid)

264 hrs[74]

7/3/23

Compassionate Leave (Paid)

8 hrs

8/3/23 - 11/3/23

Bereavement Leave (Paid)

16 hrs

12/3/23 - 3/9/23

Special Leave (Unpaid)

800 hrs

[74] Note: This amount as contained in Exhibit 9 is '32 hours paid' more than that recorded by Mrs Pringle in the table at Exhibit 6.

Notes:
Mrs Pringle's payslip indicates 64 hours per fortnight.[75] Payslips show Mrs Pringle worked 4 x 8 hour shifts per week = 32 hours per week.
[75] Exhibit 6.
Mrs Pringle's daughter diagnosed with terminal cancer on 18 September 2022.[76]
[76] Exhibit 2.
Mrs Pringle applied for paid special leave on 5 October 2022.[77]
[77] Exhibit 3.
Mrs Pringle's daughter died on 1 March 2023.[78]
[78] Exhibit 2.

[112]From the above table, it appears that Mrs Pringle received the following combinations of leave in the relevant period:
Special Leave (Paid)  264 hrs
Special Leave (Unpaid)  800 hrs
Annual Leave (Paid, at half pay)          416 hrs
Sick Leave (Paid)  0.92 hrs
Sick Leave (Unpaid)  7.08 hrs
Carer's Leave (Paid)  2.45 hrs
Carer's Leave (Unpaid)  5.55 hrs
Compassionate Leave (Paid)                24 hrs
Bereavement Leave (Paid)                   16 hrs

[113]Shown as 'number of weeks / days', that is:
Special Leave (Paid)  8.25 weeks
Special Leave (Unpaid)  25 weeks
Annual Leave (Paid, at half pay)           13 weeks
Sick Leave       1 day sick leave, mostly unpaid
Carer's Leave   1 day carer's leave, mostly unpaid
Compassionate Leave (Paid)                 3 days
Bereavement Leave (Paid)                   2 days

[114]On that basis then, the employer provided Mrs Pringle with 8.25 weeks of Paid Special Leave; 25 weeks of Unpaid Special Leave; three days of Paid Compassionate Leave (two days in 2022 and 1 day in 2023); and two days of Paid Bereavement Leave.
[115]With respect to the non-discretionary entitlements to Paid Bereavement Leave and Paid Compassionate Leave, as set out in the Special Leave Directive provisions earlier in my 'Consideration', Mrs Pringle was entitled to two days of Bereavement Leave and two days of Compassionate Leave.
[116]Therefore, Mrs Pringle was paid one additional day as Compassionate Leave, beyond the minimum entitlement provided for in the Special Leave Directive.
[117]I will address the matter of the payment of Mrs Pringle's Annual Leave accruals at half pay later in my consideration. Similarly to the (mostly unpaid) sick leave and carer's leave that was provided to her in the relevant period, it is sufficient here to note that the period of 'Annual Leave at half pay' that Mrs Pringle received was an amount from her own leave accruals and not some special consideration by the employer.
[118]With respect to the amount of paid special leave actually received by Mrs Pringle, that is 8.25 weeks, for the reasons explained above.
Was the amount of paid leave granted to Mrs Pringle 'fair and reasonable', given the duration of paid special leave approved is to be "appropriate to the purpose of the leave" - and that any additional leave granted "must be reasonable and proportionate to the circumstances"?
[119]In filing this appeal, Mrs Pringle seeks payment for the period 5 October 2022 until 1 September 2023. I calculate that period to be 331 days. That is, 47 weeks and two days (or 1520 hours, based on a 64-hour fortnight).
[120]Mrs Pringle explained those dates are drawn from the date of her application for paid Special Leave on 5 October 2022 - until the cessation of her secondment on the Graduate Nursing Program at QCH, that was to be 1 September 2023.[79]
[79] Mrs Pringle submitted that this period spans 47 weeks and two days. I concur with her calculation.
[121]Of the total 1520 working hours in the period 5 October 2022 until 1 September 2023, Mrs Pringle received 264 hours of Paid Special Leave; 800 hours of Unpaid Special Leave; 24 hours of Paid Compassionate Leave; and 16 hours of Paid Bereavement Leave. In addition, Mrs Pringle has accessed 416 hours of her own Annual Leave accruals (or 13 weeks paid, at half pay).
[122]With respect to the additional 800 hours of Paid Special Leave (25 weeks, at 64 hours per fortnight) sought by Mrs Pringle, my view is that it was not fair and reasonable for QCH to refuse to provide her with any further paid Special Leave. That is because:
(a)     the reason the leave is requested
[123]The Special Leave Directive, Schedule Two specifically includes 'Other Exceptional Circumstances', such as where an employee is "dealing with the terminal illness of a child" and "mourning the death of a child".
[124]The reason why Mrs Pringle sought Paid Special Leave was entirely consistent with the intent of the provision.
(b)     the duration of the requested leave
[125]The duration of paid special leave approved is to be "appropriate to the purpose of the leave".
[126]In this case, Mrs Pringle was faced with both dealing with the "terminal illness of a child" and "mourning the death of a child".
[127]The duration of the paid special leave she sought to do so was 47 weeks and two days - from the time she made application for Paid Special Leave on 5 October 2022, until the cessation of her secondment on the Graduate Nursing Program at QCH, that was to be 1 September 2023.
[128]While the period of paid time sought was unusually lengthy, so too was the particular need of the employee in these most extenuating circumstances of personal family crisis.
(c)     the duration of the person's employment (including end date)
[129]Mrs Pringle has been employed by Queensland Health for 12 years.
[130]Relevant to this decision criteria though, is the end date of her secondment to QCH on the Graduate Nurse Program. It was for this reason that the end date of 1 September 2023 for the period of Paid Special Leave was nominated.
(d)     the impact on the employee, if the requested leave is not approved
[131]The employer's refusal to provide further Paid Special Leave to Mrs Pringle, beyond 8.25 weeks, resulted in an enormous impact on her financially and emotionally.
[132]Consistent with the very reason why Mrs Pringle was in the position of needing to seek the Paid Special Leave, that refusal came at one of her darkest hours.
[133]I have included an extract from Mrs Pringle's submission regarding the severe impact of the refusal decision on her and need not repeat that here.
(e)     the additional paid leave is "reasonable and proportionate to the circumstances"
[134]I have earlier noted that there were two exceptional circumstances here that applied consecutively, each one warranting a significant amount of paid Special Leave consideration in their own right.

[167]Similarly, I do not support Mrs Pringle's claim to be reimbursed $9,600 for HECs. Mrs Pringle's decision to engage in further education within the health industry is admirable, but it is a matter of her own personal choice. Obtaining a nursing degree is not a requirement of her substantive role as a Dental Assistant with MNHHS.
[168]With respect to Mrs Pringle's request for "lost professional development leave payment $2,000", she has not specified the basis for such claim. I have reviewed the applicable award and note cl 25 Professional development in the Nurses and Midwives (Queensland Health) Award - State 2015 provides paid leave to attend approved professional development activities relevant to nursing and midwifery practice. However, Mrs Pringle has not submitted evidence of her attendance at professional development and so I cannot support this claim.
[169]With respect to Mrs Pringle's request to be paid $3,500 as 'cost of living bonus', she has not specified the basis for such claim. However, I have reviewed the applicable agreement and note cl 14 Cost of Living Adjustment (COLA) Payments in the Nurses and Midwives (Queensland Health and Department of Education) Certified Agreement (EB11) 2022 provides that eligible employees may be entitled to such increases "if they performed work under this Agreement during a relevant agreement year and they are covered by this Agreement on the relevant calculation date for the associated COLA Payment. An "agreement year - means one of the three 12-month periods from 1 April in one year to 31 March in the following year that includes a calculation date." Between 5 September 2022 and 4 September 2023, Mrs Pringle was seconded to Children's Health Queensland Hospital and Health Service (CHQHHS) as a Graduate Registered Nurse, after achieving her nursing degree qualification.[95] The agreement states that the "calculation date" for "COLA Payment Year 1" is "31 March 2023". Mrs Pringle performed work under the nurses' agreement "during a relevant agreement year" and was also "covered by this Agreement on the relevant calculation date for the associated COLA Payment."I also note the calculation example provided at cl 14.2.5 with respect to an eligible employee who received a pro rata COLA payment because they did not perform work under this agreement for a full agreement year - in circumstances where they worked for some time, were on paid leave for some time, and were also on unpaid leave for some time. That appears to be analogous to Mrs Pringle's situation. For those reasons, I believe Mrs Pringle may be eligible to receive an amount of COLA Payment. The respondent should calculate the correct amount of COLA Payment that Mrs Pringle may be eligible to receive, under cl 14.3 of the agreement.
[95] Exhibit 8, [5].
[170]Further, I do accept Mrs Pringle's position that superannuation be paid on the additional paid special leave that I have determined to order.
[171]I also find that Mrs Pringle's accrued leave entitlements (such as annual leave, sick leave, long service leave) will require adjustment, to take account of the additional period of paid special leave that I will order. The additional period of paid special leave that I will order also counts as 'service' for the purposes of date of incremental advance through the classification steps, as appropriate.
Was Mrs Pringle's application for paid special leave "handled … with sensitivity", as required by the Directive?
[172]Having regard to the parties' submissions and the documentary evidence before me, I consider the treatment Mrs Pringle received from her employer to be quite appalling.
[173]While the Respondent submitted that "… any regrettable delay in initially escalating and approving the Appellant's first request for special leave, requested on 5 October 2022 is not relevant to the ultimate question on appeal …",[96] I do not agree. That is because the Special Leave Directive mandates that applications for discretionary special leave for 'other exceptional circumstances' must be handled with sensitivity. 'Other exceptional circumstances' specifically included an employee dealing with the terminal illness of a child and an employee mourning the death of a child, as directly applicable to Mrs Pringle. My consideration of whether the decision subject of this appeal was fair and reasonable, is informed by whether the express terms of the Special Leave Directive were followed. This term was not.
[96] Respondent's Amended Written Submissions filed 12 June 2024, 4.
[174]Mrs Pringle initially formally applied for paid special leave on 5 October 2022.[97] She said "Regrettably, despite my repeated attempts, I received no response from the CE or EDNS of QCH until the passing of my daughter" on 1 March 2023.[98] "This was after multiple phone calls, emails and correspondence with HR, EDNS, QNMU and my acting NUM. I was dealing with this issue while my palliative daughter was going through daily radiation and then being told she had weeks to live due to hydrocephalus."[99]
[97] Exhibit 3.
[98] T 1-4, lines 45-47.
[99] T 1-4, lines 2-6.
[175]In correspondence dated 9 September 2023, Mrs Pringle wrote to Queensland Children's Hospital management regarding her "Formal Request for Resolution of Special Leave Application and Back Payment of Wages". Mrs Pringle stated:
Regrettably, despite the clarity of the policy and the ample evidence provided, all levels of management within Queensland Children's Hospital (QCH) have failed to confirm or approve my entitlement to this leave up to the present date, September 9, 2023. Instead of handling my application with sensitivity and compassion mandated by policy, I was met with hostility, ignorance, and a lack of understanding. Consequently, I was compelled to use my recreation leave, endure periods of leave without pay, and receive ill-advised suggestions to tap into my superannuation funds. This occurred despite the undeniable severity of my daughter's diagnosis, which aligns with the criteria for Special Paid Discretionary Leave under the PSC (IR) Directive 5/17 - Special Leave (Schedule Two, 11c), as stipulated in the HR Policy C7 (QH-POL-231). Furthermore, it was widely acknowledged that my daughter was a patient at QCH, the very institution that employed me and where all relevant managerial authorities were based.
…
Up until September 8, 2023, my Special Leave Request was blatantly disregarded …[100]
[100] Exhibit 4.

[176]At the Hearing, Mrs Pringle said:
… I have all emails and documentation of me reaching out to try and meet those specific timeframes within the award.[101] However, I was ignored until Ruby passed away. So I definitely did try.
[101] In reference to the grievance procedure contained in the relevant award.
As an employee of Queensland Health, there is a duty of care to act in accordance with awards, legislations and Acts. It is my firm belief my employer … has not abided by the Anti-Discrimination Act, the Nurses' Award, Workplace Health and Safety, managing the risks of psychosocial hazards at work, and the employment and wellbeing framework and QCH's wellbeing, where you work in a safe and healthy workplace.
… it includes emotional and financial wellbeing, all which underpin these - this directive 05/17.[102]
[102] T 1-6, lines 29-47.

[177]I have not yet heard any cogent explanation for that delay in responding to Mrs Pringle, nor for the conduct of the meeting held between she, Mr Tracey and Ms Hebson on 18 September 2023. It is more than regrettable that the respondent ignored an employee's legitimate application for paid leave made under a Directive for several months - during which time Mrs Pringle was primary caregiver for her terminally ill young daughter, necessitating that her husband work two jobs to keep the family afloat financially because there was no clarity on that paid leave approval - and all that occurring in a Children's Hospital workplace as well.
[178]I find that the respondent did not handle Mrs Pringle's application for paid special leave "with sensitivity", as required by the Directive.
Was the failure to resolve the work location matter, as contained in the decision letter, 'fair and reasonable'?
[179]In the decision letter dated 19 March 2023, Mr Walsh wrote to Mrs Pringle:
… your substantive role as a Dental Assistant for Children's Oral Health Service (COHS) is at Metro North Hospital and Health Service, and that you are scheduled to return to that position at the conclusion of your current maternity leave. You confirmed that it is a requirement of your role to provide services at the Children's Hospital Queensland. As I heard from you, you do not believe that you would be able to return to the Children's Hospital campus professionally, as you would find it too confronting. I acknowledge your concerns about this and can advise that your line manager with COHS, will explore your working arrangements with you closer to your return to work date.

[180]At the Hearing, Mrs Pringle said that she did not want to return to the QCH work location because it would be too distressing. She said:
… the main location of my permanent employment is QCH. This location represents the sight of deeply traumatic events including the decision to take my daughter off life support…[103]
[103] Appellant's submission filed 5 June 2024.

[181]Instead, Mrs Pringle suggested that her substantive position could be performed at the Oral Health Centre, Herston (though acknowledged that was only two days per week). Mrs Pringle explained that "The Queensland Government pays for us to go there to teach the uni students. So in the letter from the D-G, that's what he was talking about, that my substantive role could be changed to Herston. However, when I spoke to my director at the time to come back to work, they stated that I wasn't fulfilling my contractual obligations because our main point of work is at QCH, and we're only at … the Oral Health Centre, at Herston, two days a week. So I would have to work that out with work as well."[104]
[104] T 1-21, lines 42 – 476; T 1-22, lines 1 – 2.
[182]At the Hearing, I asked Mrs Pringle whether there were any other work location possibilities within MNHHS that she may be aware of. Mrs Pringle said: "They've got other sites around Northside of Brisbane … there's one at North Lakes and Caboolture … So I am a dental assistant, but I've got my radiography as well … And I'm a nurse."[105]
[105] T 1-23, lines 22-40.
[183]While I do not have evidence before me that Mrs Pringle has made her request for an alternative work location formally, the Director-General's letter stated he is aware of Mrs Pringle's need to work at a location other than QCH and why. Further, Mr Walsh acknowledged her concerns in that regard.
[184]Although Mr Walsh referred the discussion about work location to Mrs Pringle's line manager, that evidently did not resolve the matter. Instead, Mrs Pringle was reportedly told that she "wasn't fulfilling my contractual obligations because our main point of work is at QCH, and we're only at … the Oral Health Centre, at Herston, two days a week."
[185]In the decision letter dated 19 March 2023, Mr Walsh wrote to Mrs Pringle that she had "… confirmed an intention to return to work initially on a part-time arrangement for three days per week." That was to be for the first six months upon her return to work, after her current maternity leave.
[186]Mrs Pringle will return to her substantive role as a Dental Assistant for Children's Oral Health Service (COHS) with Metro North Hospital and Health Service after her current maternity leave.
[187]It is open to Mrs Pringle to make an application for a FWA in accordance with the Queensland Health Guideline for flexible working arrangements and the Flexible Working Arrangements HR Policy C5. Given Mrs Pringle's circumstances, her request for an alternative work location is certainly reasonable. It seems apparent that she cannot return to work at QCH - the site of her young daughter's passing.
[188]Sections 27-29 of the IR Act contain provisions dealing with flexible working arrangements. That includes that an employee may ask the employer for a change to the place of work. Further, that the request must be in writing, state the change requested, and state the reasons for the change. Under the Queensland Health Guideline for flexible working arrangements policy, such request may be made by submitting a FWA Application and Agreement form. Once the written request is received, the employer must decide the request within 21 days. If the decision is to refuse the request, or grant it in part only, the employer must provide written reasons for the decision and outline the employee's appeal rights to the Commission. Under s 29 of the IR Act, if the employer does not give the written notice about its decision within 21 days after receiving the request, they are taken to have decided to refuse the request. If Mrs Pringle is dissatisfied with the decision made by the employer following the consideration of her request, then she may refer the dispute to the Commission to hear and decide under ch 6 of the IR Act.
[189]While Mrs Pringle has not received clear direction from the Respondent as to 'whether' or 'what' alternative work location may be arranged, it is open to Mrs Pringle to submit a FWA Application. At that point, the Respondent will be required to make a final determination within 21 days.

Was the decision to permit Mrs Pringle to accrue leave entitlements at full time rate for part time work for the first 6 months upon return to work, as contained in the decision letter, 'fair and reasonable'?
[190]In the decision letter dated 19 March 2023, Mr Walsh wrote to Mrs Pringle:
You confirmed and intention to return to work initially on a part-time arrangement for three days per week. As I committed to you in our meeting, to support you in managing your transition back to work, and noting your concerns about fulfilling the duties of your role across both services, I am willing to support you to continue to accrue your leave entitlements of annual, sick and long service leave to the equivalent of a full time employee for a period of up to six months from your return to work.

[191]Mrs Pringle does not object to this consideration of her particular circumstances.
[192]I find this element of the decision letter to be fair and reasonable.
Were the counselling sessions and psychological support, as contained in the decision letter, 'fair and reasonable'?
[193]Mrs Pringle submitted that:
… I acknowledged that the employee assistance program has been offered to me. However, upon my contacting them, they made it clear counselling for grieving the loss of a child was outside the scope of their capabilities. Subsequently, their suggestion was to seek private support principally through general practice referral. Upon hearing this, Mr Walsh offered three psychologist sessions funded by Queensland Health. Three free psychology appointments are not an adequate amount of support for the trauma experienced daily from losing my child…While the offers from Mr Walsh are appreciated, this does not excuse the actions taken by QCH's CE, HR, and Executive Director of People and Governance. These offers also came too late, nearly a year after my daughter had passed and a year and a half after my initial application for paid special leave; and at my ongoing questioning on the matter.[106]
[106] Appellant's submission filed 5 June 2024.

[194]In the decision letter dated 19 March 2023, Mr Walsh wrote to Mrs Pringle:
As an employee of Metro North Hospital and Health Service, you have access to the Employee Assistance Program (EAP). EAP offers a confidential counselling service which is free of charge for up to six sessions per calendar year. Access to this service is by self-referral…Alternatively, should you wish to access more specialised psychological support, CHQHHS would be supportive of coordinating and funding three psychologist sessions over a six-to-12 month period, at a date and time determined by you.

[195]The Director-General's offer that the department fund three psychologist sessions for Mrs Pringle to be a positive consideration of her circumstances. While I accept that may be insufficient to Mrs Pringle's needs, it is at least a start. I note also that is additional to any specific entitlement or industrial provision.
Did the department comply with the Award provisions for resolving grievances?
[196]The Respondent submitted that Mrs Pringle "did not identify she was making a grievance in accordance with clause 7.2 of the Award and rather identified she was seeking a reconsideration of her application for special leave." Further, Mr Walsh's correspondence to Mrs Pringle dated 9 October 2023 and 19 March 2024 advised her that she may request a review of his decision by submitting a written grievance to the Public Sector Commission (PSC), though she chose not to do this.[107]
[107] Respondent's Amended Written Submissions filed 12 June 2024, [10].
[197]Mrs Pringle stated that the Respondent did not comply with s 7.2 'Employee Grievance Procedure - Other than Award Matters' of the Nurses and Midwives (Queensland Health) Award - State 2015, particularly sub-section (f) which provides for "precise timelines mandating employer responsiveness to an employee."[108] Mrs Pringle stated "… the process detailing in section 7.2 were not followed or applied, despite the clear guidelines provided for the … prevention and settlement of disputes … I regret to say that none of these processes were adhered to in resolving my issue. Instead, there was a pattern of avoidance, prolonged timeframes, minimal to no communication, and lack of satisfactory explanations provided … and a severe lack of compassion cumulative in denial for my application."[109]
[108] Appellant's submission filed 5 June 2024.
[109] T 1-5, lines 28-38.
[198]I note that cl 7.2(a) of the Award provides that:
The objectives of the procedure are to promote the prompt resolution of grievances by consultation, co-operation and discussion to reduce the level of disputation and to promote efficiency, effectiveness and equity in the workplace.

[199]As I have earlier outlined, the conduct of the Respondent in first ignoring Mrs Pringle's application for several months, then responding to it with a lack of sensitivity, have combined to defeat those objectives in my view.
[200]With respect to the Respondent's submissions, I note that cl 7.2(b) of the Award does not require that the employee's grievance be put in writing until Stage 3. Stages 1 and 2 simply requires that the employee shall inform such employee's immediate supervisor of the existence of the grievance, and they shall attempt to solve the grievance - then, that the employee shall refer the grievance to the next in line manager. Mrs Pringle did so.
[201]It is recognised that an employee may exercise the right to consult such employee's Union representative during the course of Stage 1 and 2. Again, Mrs Pringle did so.
[202]The various emails contained in Exhibit 3 evidence Mrs Pringle's clear communication regarding her application for paid Special Leave, and dogged inquiries as to whether the employer had yet made a decision. There can be no doubt that her employer was informed of the existence of her grievance.
[203]However, despite Mrs Pringle making formal application for Paid Special Leave on 5 October 2022, it was not until months later that some was approved. The Respondent submitted Mr Tracey verbally communicated to Mrs Pringle on 10 January 2023 that paid special leave was approved for the period 9 January to 12 February 2023 (five weeks).[110] The parties agree that on 10 March 2023, Ms Joldic approved a further period of paid discretionary special leave from 13 February to 6 March 2023 - and that Ms Joldic called Mrs Pringle to advise her of that decision on or about 10 March 2023.

[110] Though Mrs Pringle submitted that she heard nothing until after her daughter's passing on 1 March 2023.
[204]Those timeframes are well in excess of the four weeks for resolution of a grievance that is provided at cl 7.2 of the Award. The respondent's failure to adhere to the express timeframes provided for in the Award provision was not fair and reasonable.
[205]For the reasons explained above, I find the decision was not fair and reasonable.
Orders
[206]I order accordingly.
Pursuant to s 562C(1)(c) of the Industrial Relations Act 2016 (Qld), I will set aside the Respondent's decision and substitute another decision. That is:
1.       The Respondent shall pay an additional amount of 664 hours (or 20.75 weeks) Paid Special Leave to Mrs Pringle.
2.       The Respondent shall pay superannuation on the additional amount of 664 hours of Paid Special Leave to be paid to Mrs Pringle.
3.       The Respondent shall calculate the correct amount of COLA Payment that Mrs Pringle may be eligible to receive, under cl 14.3 of the certified agreement, and pay any amount owing.
4.       The Respondent shall make the required adjustments to Mrs Pringle's accrued leave entitlements (such as annual leave, sick leave, long service leave), to take account of the additional amount of 664 hours Paid Special Leave.
5.       The Respondent shall comply with the Orders at 1 to 4 above within 28 days of this Decision.
Further, the following elements of the Respondent's decision are confirmed -and thus remain undisturbed by my decision:
6.       The Respondent's decision that Mrs Pringle will accrue her leave entitlements at a full-time rate, for part time work, for a period of up to six months following her return to work, is confirmed.
7.       The Respondent's decision that CHQHHS coordinate and fund three psychologist sessions over a six-to-12-month period, at a date and time determined by Mrs Pringle, is confirmed.
8.       The Respondent's decision not to re-credit Mrs Pringle the annual leave she accessed at half pay in the relevant period is confirmed.
9.       The Respondent's decision not to pay Mrs Pringle the amounts she claimed for 'FTB & Pension', 'CCS', 'lost penalty rates', 'HECs' and 'lost professional development payment' is confirmed.

Date	Leave Type	Hours
19/9/22	Carer's Leave (Paid)	2.45 hrs
Carer's Leave (Unpaid)	5.55 hrs
22/9/22	Sick Leave (Paid)	0.92 hrs
Sick Leave (Unpaid)	7.08 hrs
23/9/22 - 26/12/22	Rec Leave (at Half Pay)	416 hrs
28/12/22 - 29/12/22	Compassionate Leave (Paid)	16 hrs
9/1/23 - 6/3/23	Special Leave (Paid)	264 hrs[74]
7/3/23	Compassionate Leave (Paid)	8 hrs
8/3/23 - 11/3/23	Bereavement Leave (Paid)	16 hrs
12/3/23 - 3/9/23	Special Leave (Unpaid)	800 hrs

[2024] QIRC 182

26 July 2024